To Bring the World to Account – Part Two

By A. Kwok

This entry is part two of a miniseries of blogs about the Symposium on the Proposal to Create an International Anti-Corruption Court. This blog will synopsize the third of six articles of the symposium, and provide a brief critical analysis. For a better understanding of the IACC, please refer to the previous blog: To Bring the World to Account: Introducing a System to Tackle International Corruption.

In September 2023, the Transnational Criminal Law Review published a journal symposium discussing the possibility of a judicial body targeting transnational corruption: the International Anti-Corruption Court (the “IACC”). The goal of the IACC is to set a global anti-corruption standard and establish similar levels of accountability towards any contraveners.[1] The Symposium on the Proposal to Create an International Anti-Corruption Court (the “Symposium”) is a collection of publications built on the foundation of The Progressing Proposal for An International Anti-Corruption Court by US District Court Judge Mark Wolf, Richard Goldstone, and Robert Rotberg (the “IACC Proposal”).[2] In particular, the Symposium focuses on five particular topics:

1.     Determining the applicable law for the IACC;[3]

2.     Tailoring the rules of evidence for the IACC;[4]

3.     The relationship between diplomatic immunity and the IACC;[5]

4.     Designing a legal framework to recover assets as a result of corruption;[6] and

5.     How the IACC allows for an expanded scope of corporate liability under international law.[7]

This blog entry is the second part of a miniseries covering this Symposium, with this part providing a comprehensive summary of the Symposium’s findings on topic 3 as well as discussing any potential issues that were not addressed or warrant more investigation.

The Relationship between Diplomatic Immunity and the IACC

The paper “Prosecuting Corruption Crimes before an International Court: Whither Immunity Rules?” provides a critical analysis of how current immunity customs may conflict with and be reconciled under the IACC.[8] Diplomatic immunity is a legal privilege that grants foreign representatives accredited by their home state certain protections from prosecution.[9] This privilege is granted to ensure designees can conduct their work on behalf of their home state without being subject to political harassment or persecution by the host. Accredited representatives may range from government officials to diplomats to international organizations and those working under such organizations. Almost all countries are ratifying parties of the Vienna Convention on Diplomatic Relations (the “Vienna Convention”), the treaty that sets the current international standard for immunity.[10] However, some countries ratified the Convention with reservations to certain provisions and/or integrated all or part of the Convention as part of its legislation.[11] Immunity comes in two forms: functional immunity and personal immunity.

Functional Immunity

Functional immunity provides protection to representatives sent with a mandate by their home state, with a mandate being anything from a diplomatic mission or international aid.[12] This protection only extends to “official acts”, meaning anything that could be attributed to their home state’s behalf.[13] As such, anything these representatives do in a private capacity is not protected by functional immunity. This also means that, once the mandate is completed or ceased, so can the duration of the functional immunity though, pursuant to customary international law, it usually remains beyond the mandate.[14]

The paper first clarifies a common misconception about the relationship between functional immunity and corruption, which is the assumption that functional immunity does not apply to corruption because such acts areof a purely private nature. The author, Rosanne Van Alebeek, argues that this assumption is overly simplistic given that functional immunity arguments have been used for rulings in numerous corruption cases including Jiminez v. Aristeguieta in the U.S. Court of Appeals and Adamov v. Federal Office of Justice of Switzerland’s Federal Supreme Court.[15] Furthermore, there are some examples of corruption that are “intimately tied up with the exercise of state authority” such as taking bribes when selecting government contracts to exploit natural resources.[16] Though the bribe was taken by and most likely for one individual’s private benefit, the act itself is inextricably linked to a state act. Nevertheless, Van Alebeek argues that the “murky waters of state sovereignty (or independent exercise of IO functions) glean just below the surface” of any corruption-related crimes committed by a foreign representative.[17]

However, Van Alebeek does not advocate for functional immunity to be considered in corruption cases. Rather, Van Alebeek suggests that further academic discourse is needed to determine this issue.[18] Van Alebeek suggests two directions the legal community can take:

1.     Consider functional immunity as a “form of state immunity”, meaning that immunity is granted to strictly acts that the foreign state would be held liable for.[19] In this case, functional immunity would not be an available option in corruption cases.[20] Or;

2.     Frame functional as a “discrete rule of international law”, which allows for functional immunity arguments when corruption occurred in the “home state and in violation of the public law mandate of an official” or on a forum state by “legitimate exercise of state authority of the home state”.[21]

Personal Immunity

Personal immunity, as opposed to functional immunity, is much wider in its scope. Not only can personal immunity be extended beyond a given mandate, but it also protects both official and personal acts.[22] Under personal immunity, official acts are accounted on the individual envoy and not necessarily attributed to the state.[23] Accordingly, personal immunity is granted to a very limited pool of representatives with the most common ones being heads of state/government and ministers of foreign affairs.[24]

Given the large scope of protections provided by personal immunity, it would be difficult to prosecute individuals with such immunity. Thus, the IACC Proposal suggested that the IACC would serve as an international tribunal where, as held by the ICC case The Prosecutor v. Omar Hassan Ahmad Al Bashir, immunity arguments cannot be used to prevent an international court from “exercis[ing] its own jurisdiction”.[25]

However, this suggestion is inherently flawed. An international court “acts on behalf of the international community when prosecuting international crimes.”[26] As such, an international court can only strip immunity and prosecute corruption under international law. However, while immunity is considered customary international law, corruption is not.[27] On the contrary, corruption is not criminalized under general international law, with countries trying to minimize opportunities for corruption via multilateral treaties.[28] Thus, corruption would be considered a “transnational” or “treaty” crime instead, meaning that it would fall outside of the ruling in Al-Bashir and remain an available argument in an international court.[29]

Biggest Takeaway and Conclusion

Van Albeek’s paper is a prime example of how answering one question will lead to further questions. A major obstacle in establishing an effective IACC is ensuring that immunity arguments do not impede a fair trial. The most pressing immunity-related issue is how to tackle the problem of personal immunity. As corruption is considered a transnational crime rather than one recognized under international law, a seemingly simple answer would be to recognize corruption as an international crime. But this begs the question: how can corruption become an internationally recognized and prosecutable crime?

Currently, international law can be enshrined through conventions, treaties, and standards. Immunity is under international law via the Vienna Convention.[30] There is also a convention for corruption—the United Nations Convention against Corruption (the “UNCAC”)—and yet corruption is still not considered international law.[31]

This paradox can be reconciled by looking at the language of both conventions. The Vienna Convention is written in a similar manner to that of Canadian legislation with clear guidelines and standards.[32] The UNCAC, on the other hand, is less firm, especially when it comes to the criminalization of corruption. In particular, the convention “calls for preventive measures and the criminalization” or corruption “as necessary”—without providing any further guidance on how to criminalize corruption and the punitive measures courts should enforce. The weaker language is likely attributed to the fact that there is no global consensus on the definition of corruption and what corruption-related activities should be criminalized.[33] However, in doing so, the UNCAC’s language is not strong enough to set an international standard for corruption, meaning that corruption is not considered international law.

Given this precedent, it would undoubtedly be difficult to rally the world’s countries around a unified consensus on corruption today. Nevertheless, there must be more deliberation on what “non-mandatory” offences of the UNCAC should be deemed mandatory and determine if enough countries would be amenable to form an international standard, which was suggested in my last blog entry.[34] Further to Van Alebeek’s contributions, once an international consensus on corruption is reached, an international agreement on the criminal procedures for prosecuting corruption-related crimes should be a  priority.

Part 3 of this miniseries will continue to dive into the remaining research articles published by the Symposium.

[1] Mark L Wolf, “The Case for an International Anti-Corruption Court” (Paper delivered at the 2014 World Forum on Governance, Prague, Czechia, 23 July 2014), (2014) Governance Studies at Brookings.

[2] Cecily Rose, “Introduction to Symposium on the Proposal to Create an International Anti-Corruption Court” (2023) 2:1 Transnat’l Crim L Rev 1 at 2; Mark L Wolf, Richard Goldstone & Robert I Rotberg, The Progressing Proposal for An International Anti-Corruption Court (Cambridge, MA: Integrity Initiatives International, 2022) [IACC Proposal].

[3] See Anton Moiseienko, “The Proposal for an International Anti-Corruption Court: What Law Should the Court Apply?” (2023) 2:1 Transnat’l Crim L Rev 5 [Law Application].

[4] See Kathrin Betz, “Evidentiary Aspects of an International Anti-Corruption Court” (2023) 2:1 Transnat’l Crim L Rev 19.

[5] See Rosanne van Van Alebeek, “Prosecuting Corruption Crimes before an International Court: Whither Immunity Rules?” (2023) 2:1 Transnat’l Crim L Rev 35 [Immunity Rules].

[6] See Daley J Birkett, “Recovering Assets at an International Anti-Corruption Court” (2023) 2:1 Transnat’l Crim L Rev 59.

[7] See Hannah Harris, “Corporate Liability within the IACC Framework” (2023) 2:1 Transnat’l Crim L Rev 74.

[8] Rosanne Van Alebeek, “Prosecuting Corruption Crimes before an International Court: Whither Immunity Rules?” (2023) 2:1 Transnat’l Crim L Rev 35.

[9] See the definition of “internationally protected person” in Criminal Code, RSC 1985, c C-46, s 2.

[10] See Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95 [Vienna].

[11] See Vienna, supra note 10. See also Foreign Missions and International Organizations Act, SC 1991, c 41.

[12] Ayush Tiwari, "Extent of Functional Immunity Granted to State Officials" (2019) 8:1 Christ U LJ 81 at 84 [Functional Immunity].

[13] Ibid at 84-5.

[14] Immunity Rules, supra note 5 at 37.

[15] Ibid at 38-40. See also Jimenez v Aristeguieta et al, 311 F (2d) 547 (5th Cir 1962); Federal Supreme Court, Lusanne, 22 December 2005, Adamov v Federal Office of Justice, Case No 1A 288/2005, ILDC 339 (CH 2005) (Switzerland). 

[16] Immunity Rules, supra note 5 at 45.

[17] Ibid at 47.

[18] Ibid.

[19] Ibid at 44.

[20] Ibid.

[21] Ibid.

[22] Functional Immunity, supra note 12 at 84.

[23] Ibid.

[24] Ibid at 85.

[25] IACC Proposal, supra note 2 at 6, citing The Prosecutor v Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09 OA2, Judgment in the Jordan Referral re Al-Bashir Appeal (6 May 2019) at para 114 (International Criminal Court, The Appeals Chamber) [Al-Bashir]. 

[26] Immunity Rules, supra note 5 at 58.

[27] Ibid at 55.

[28] Ibid.

[29] Ibid.

[30] Vienna, supra note 10.

[31] United Nations Convention against Corruption, 31 October 2003, 2349 UNTS 41 (entered into force 14 December 2005).

[32] Vienna, supra note 10 at 1-21.

[33] Law Application, supra note 3 at 9-10.

[34] Ibid at 9.