Prosecuting Corruption Crimes before an International Court: Whither Immunity Rules?

In their proposal to establish an International Anti-Corruption Court (IACC), Wolf, Goldstone and Rotberg rely on the ICC judgment in the Jordan Referral re Al-Bashir Appealto claim that international immunity rules will not apply in relation to proceedings before an IACC. This paper critically assesses that claim. Apart from the fact that the Al-Bashirjudgment is far from uncontroversial, nor completely unambiguous, the judgment’s reasoning hinges on the notion of an international court that acts on behalf of the international community when prosecuting international crimes. Since corruption crimes are transnational crimes and not, as of yet, crimes under international law, and since it is alsodoubtful whether the institutional set-up of the proposed court will give it a sufficiently universal orientation, an international anti-corruption court has to respect the functional and personal immunity of officials of states that are not party to it. Since personal immunity rules stand in the way of prosecutionof certain, high-level kleptocrats in foreign national courts, these rules will also hamper the exercise of jurisdiction by an international court. The paperfurther challenges the position that corruption is a purely private act that necessarily escapes the reach of the functional immunity rule. It explores the conceptual core of the functional immunity rule and argues that functional immunity considerations may very well be triggered by the prosecution of foreign or IO officials on corruption charges.