Let Nations, Not the World, Prosecute Corruption

This article originally appeared in U.S. News & World Report on April 30, 2014.

By Karen Alter and Juliet Sorensen

Forty years ago, the Nixon White House released to the House Judiciary Committee edited transcripts of secret recordings made by the president. Despite evidence of his having committed a host of federal crimes, Richard Nixon never faced prosecution, even as the Watergate scandal shook the confidence of the nation. One month after his resignation, newly ensconced President Gerald Ford pardoned Nixon for any crime he “has committed or may have committed or taken part in” during his time in office.

America has never seen another Watergate. Yes, other scandals have tainted the White House, including the Iran Contra affair and the Whitewater controversy. But arguably no one in that office has committed the depth and extent of Nixon's crimes, even as crimes like Nixon’s – and worse – are still committed across the globe.

Today, anti-corruption scholars and crusaders around the world – including the Global Organization of Parliamentarians Against Corruption, University of Michigan Law Professor Sonja Starr and supporters of the Foreign Corrupt Practices Act – have called for the expansion of the International Criminal Court's mandate to include prosecution of corruption.

But international prosecution would not have helped in the Watergate scandal, nor would international prosecution be a useful solution to the ills of corruption plaguing the world today.

To be sure, political corruption is a serious global problem. According to the World Bank, corruption costs equal more than 5 percent of global GDP with more than $1 trillion paid in bribes annually. Corruption increases the cost of doing business, and entrenches inequality: Those with the means and the willingness to pay are rewarded, whereas those who follow the letter of the law are not.

The bite of corruption is bigger when the economy is smaller. For instance, The African Union asserts that 25 percent of the GDP of African states is lost to corruption every year. But the loss of public faith that corruption engenders is also felt in wealthy countries such as our own. In the words of former U.S. Attorney Patrick Fitzgerald, victims of corruption in America include “both those who are shaken down for bribes and kickbacks, and the members of the general public, who pay for corruption through inflated costs and loss of faith in government.”

It is easy to understand the attraction of adding the crime of corruption to the International Criminal Court’s jurisdiction. Like violent atrocities, embezzlement and blackmail may be perpetrated on innocents. Corruption can be an international crime, featuring offshore accounts, money laundering and bribery of foreign officials. Moreover, when political leaders are involved in mass corruption, their crimes can become too dangerous for local judges and prosecutors to tackle.

But to add this crime to the court’s jurisdiction would be a mistake. It is limited for good reason to genocide, war crimes, crimes against humanity and in the future, the crime of aggression. Although the category of crimes against humanity has many dimensions, including rape, sexual slavery and torture, the court focuses on those most responsible for mass atrocities, especially high level political officials who abetted but did not themselves perpetrate the crimes. These high officials are most likely to escape national prosecution. However, where national actors undertake their own investigation and prosecution, the international body defers to national proceedings.

Even with this limited mandate, the court is struggling. Like all new institutions and businesses, the International Criminal Court is journeying up a steep learning curve. The infrastructure for prosecuting mass atrocities does not exist, with few experienced prosecutors and investigators to draw on. Domestic prosecutors and domestic legal approaches are not necessarily a help, because investigating and prosecuting crimes at home is really quite different than investigating and prosecuting crimes that occurred in a war zone, many thousands of miles away.

And corruption is a particularly difficult crime to prosecute: the perpetrators are public officials wielding power, victims are often reluctant to report a shakedown, so that most effective investigations are covert and ongoing, involving cooperating witness ("flippers") or long-term undercover investigators. It would be nearly impossible for International Criminal Court investigators to operate in a covert capacity given the court’s limited law enforcement mandate and its lack of any formal relationship with national police forces. In addition, there is little reason to believe that the court would conduct corruption investigations better than investigators at the national level who are better resourced and who have access to the legal tools needed to collect evidence and work with witnesses. Meanwhile, there are multilateral approaches including Interpol and legal assistance treaties that provide national jurisdictions with the international tools they need to gather evidence across borders.

Before we give the court a new and even harder crime to prosecute, we must make sure that it can succeed in its core mandate. What international criminal law does best is prosecute those most responsible, at the apex of the pyramid, when individual nations are unwilling or unable to do so.

Finally, we must recognize that already the International Criminal Court faces a crisis of political support. It is clear that Russia will not support it prosecuting crimes in Syria, and Russia will become even more hostile to the court should it become involved in the conflict with Ukraine. The United States also has its list of actors and crimes from which the court will be excluded. To enter the terrain of corruption would be to widen the circle of discontent with the body, with few real upsides. If we think back 40 years to Watergate, it is clear that an international court asserting jurisdiction over a criminal prosecution of Nixon would only have exacerbated the nation’s shock and outrage.

Even today, while a solid majority of American support U.S. participation in the International Criminal Court, they do so on the condition that it can try individuals only for war crimes, genocide or crimes against humanity in the event that their own country is unwilling to try them.

Our constitution bestows the power of the pardon on the president. Whether or not Ford’s pardon four decades ago was the right course of action was a question for Americans to decide at the voting booth. In 1976, they did so by electing Jimmy Carter.

The status quo is surely not a perfect one. But international intervention is not a panacea. The International Criminal Court needs to stay focused on the important task of prosecuting those most responsible for mass atrocities. Rather than put more resources into international criminal prosecution, the resources and energy of the international community should go towards bolstering national resources to investigate, prosecute, and deter public corruption.

- Karen Alter is a professor of political science and law at Northwestern University. Juliet Sorensen is a clinical assistant professor of law at Northwestern University.