Corruption Matters - May 2017 | Issue 49
Champion of an international anti-corruption court to speak at APSACC
Judge Mark Wolf is a distinguished member of the judiciary in Massachusetts. He has heard cases of corruption in the US for well over 30 years, and is known for some much-publicised and controversial decisions. Since 2014, the year in which he first proposed the concept of an international anti-corruption court, he has actively campaigned for the creation of a court as a way to combat grand corruption (the abuse of public office for private profit by a nation's leaders). Judge Wolf will visit Australia for the first time in November to speak at the Australian Public Sector Anti-Corruption Conference (APSACC) in Sydney.
Judge Mark Wolf
In 1974, you went to work for the Attorney General’s office at the end of the Nixon administration, a few months before the president resigned over the Watergate scandal. What can you tell us about that time?
My first professional experience with corruption began with serving as a special assistant, when I was 27 years old, to the deputy attorney general of the US, despite the advice of many people that joining President Nixon’s disgraced justice department would ruin my career. However, I thought they needed more honest people.
The president and I only overlapped for about three months. Therefore, we didn’t have any influence on each other. However, I had the opportunity to stay at the Department of Justice and work for an extraordinary attorney general, Edward Levi, during the administration of President Gerald Ford. At that time, it was demonstrated that crimes were being committed by high-level officials close to President Nixon and, although he was never charged or convicted before being pardoned, possibly by the president himself. It was also demonstrated that organisations that had made illegal political campaign contributions to Nixon’s campaign for president in 1972 were getting undue favourable treatment from the Department of Justice.
My experience as an assistant to the attorney general in the aftermath of Watergate gave me a reverence for the honest administration of justice. It also gave me an understanding that even the highest officials of the country can, and should, be held accountable.
And how has corruption changed (if at all) since that time?
We have had what has been viewed as the honest administration of justice at the national level in the US since Watergate but nothing can be taken for granted. There’s a lot of discussion in the US these days about lessons that need to be remembered or re-learned from that era.
In Massachusetts, when I was a prosecutor of corrupt public officials from 1981 to 1985, a commission had authoritatively found that corruption was a way of life in the state's building contracting process. As the chief federal public corruption prosecutor in Massachusetts, I led a unit that won about 45 consecutive corruption cases, including many against high officials of the City of Boston and other cities, and sometimes federal officials. Since that time, at both the state and municipal level, we have had far more honest governments than we had before.
I learned that investigations and prosecutions of public officials could be successful and create opportunities for more honest people to be elected. Corruption has not disappeared in my state, Massachusetts. In 2011, I sentenced the former speaker of our House of Representatives to eight years in prison for taking bribes in connection with almost $20 million in state contracts. However, corruption has diminished.
On the international level, I don’t know that corruption, particularly grand corruption, has changed very much. I think many countries are characterised by grand corruption. They are led by high officials who abuse their office for private profit. In many countries, it’s still sad and true that people seek and obtain power to enrich themselves, not to serve their citizens. So, there is an enduring, fundamental, and severe problem at the highest level in many countries. I haven’t seen much change in that.
Do you think that access to information is greater now?
This is one thing I think has changed in a very promising way. More attention is being paid to corruption generally, and grand corruption particularly, than previously. I think that technology is helpful in both discovering and exposing corruption. Alexei Navalny [political activist] in Russia, for example, has a group of followers who, when the Russian government announces that it spent a very large number of rubles to build a hospital in some remote place, go out with their smart phones and take a picture of an empty field where that hospital is supposed to be. I think that is very valuable. There are also brave journalists exposing a lot of corruption.
There are young people in countries around the world who do not accept that corruption, particularly grand corruption, is an inevitable way of life, as their parents and ancestors have for a very long time. They go to Tahir Square in Egypt. They go to Maidan [the central square of Kiev]. These revolts against corruption are led by young people, including my friend Daria Kaleniuk [co-founder and executive director of the Ukraine’s Anti-Corruption Centre in Kiev]. These young people not only attract other young people, they also alter the attitudes of some of their elders.
So, while the corrupt nature of a number of these countries has not fundamentally changed, there are now contending forces that didn’t exist 30 or 50 years ago. There are people standing up to corrupt officials instead of passively accepting corruption as a way of life.
Expand on the work you do with young people and students.
In general, in the course of my career, I’ve been quite devoted to young people and have received more than I’ve tried to give. For example, I’ve started three programs that give about 300 fellowships a year to students. They’re all focused on trying to encourage, indeed inspire, young people to engage in various forms of public service. I find that working with young people, while time consuming, is extremely rewarding.
For a federal judge, a US district judge, a great deal of the work I do can be dispiriting – regularly sentencing people, some for serious crimes like murder, some mafioso, some that are born into pathetic circumstances. If that was all I did, I might think that the world was filled with an endless procession of miserable people. I would be burnt out and discouraged, I suspect. But my constant interactions with young people refresh and energise my own idealism.
You are a founding member of Integrity Initiatives International (III). What are its aims and how did it come about?
In 2014, I published two articles advocating the creation of an international anti-corruption court. One was a scholarly piece published by the Brookings institution, and the other was a Washington Post op-ed [opinion] piece. In the course of my career, I have published many articles and usually they don’t generate much or enduring attention. These articles did. I immediately started hearing from people around the world – Argentina, England, Uganda – for whom the analysis of the problem and the prescription resonated.
There was great interest expressed in the proposed international anti-corruption court from a wide range of people – from individuals who had a leading role in creating the International Criminal Court to young people, like Daria Kaleniuk, a leader of the Ukraine uprising in 2014. So colleagues, including Justice Richard Goldstone of South Africa, who was the first prosecutor for the International Criminal Tribunal for the former Yugoslavia, and I created III.
III has three purposes. The first is to institutionalise the effort to advocate for the creation of a new international anti-corruption court. In addition, III is dedicated to developing and strengthening other mechanisms to enforce criminal laws in order to punish and deter grand corruption and to create opportunities for more honest leaders to become elected and serve their people. The third purpose of III is to forge a network of young people dedicated to combating corruption in their own countries and around the world.
How would the court work if countries did not wish to participate?
As I go around the world and speak, nobody disputes the devastating effects of grand corruption; that it’s very costly economically, that grand corruption breeds terrorists and creates safe havens for them, and that grand corruption is closely correlated with the worst abuses of human rights.
Many people understand that grand corruption flourishes because of leaders who control the police, the prosecutors and courts in their countries, and will not permit the honest investigation and prosecution of their friends, their families and themselves. The national courts are often inadequate to deal with the problem. Therefore, an international anti-corruption court is needed to enforce criminal laws that exist in almost every country. At last count, 178 countries have signed the UN Convention Against Corruption and have laws that prohibit bribery and extortion, money laundering, and misappropriation of natural resources by their highest leaders, among others. However, the laws are not enforced.
So, almost all of the people I speak to agree the court is needed. It is often asked how you would get countries to join the court. It’s a challenging question. The UN Convention Against Corruption could be amended to require the signatories to submit to the jurisdiction of the court under a principle of complementarity. If they don’t enforce their own laws, they would be subject to prosecution in that court. The World Trade Organization could have that as a requirement. The former US trade representative, Mickey Kantor, has advocated it. Treaties like the Trans-Pacific Partnership have provisions calling for strong enforcement of existing criminal laws against corruption. International lending organisations, like the World Bank, and other international development banks, could require submission to the court as a condition for receiving loans.
I think there is substantial interest in the people of many countries (perhaps most prominently in Latin America and Africa) for this; maybe not as much interest in the leaders of some of those countries. The minister of justice in Ukraine and the member of parliament who chairs its anti-corruption committee, among others, support the international anti-corruption court. Neither of them is the president of Ukraine today, but one might be in five years. There’s interest in this court in Nigeria, where there is a long history of grand corruption. The present president, Muhammadu Buhari, is trying very hard to combat that corruption. I have had good conversations with some of his anti-corruption advisers. I think a leader like President Buhari who knows his country has had a history of corrupt leaders – interrupted occasionally by honest leaders – and recognises that there might be corrupt leaders in the future, would want to have his country join the international anti-corruption court to institutionalise his own commitment to honest government and accountability.
Right now, the international anti-corruption court is a concept. There is not yet a well-organised campaign for it, a campaign comprised of countries, interest groups and individuals. There needs to be more work done internationally to generate interest in creating and joining this court.
The International Criminal Court (ICC) is a model. The potential defendants are primarily from countries which join the court, but the UN Security Council can report or refer for prosecution in the ICC cases of genocide, war crimes, and crimes against humanity committed by people and countries that are not members of the court. That would be another way of getting a jurisdiction.
The momentum has built in the three years since you wrote the articles. Would you like to see the court up and running by a certain year?
I don’t have a timeline. And some people say it’s impossible. But I’m 70 years old and I have seen many things occur that in my lifetime were regarded as impossible. I’ve seen the collapse of the Soviet Union. I’ve seen the end of apartheid in South Africa. Nelson Mandela said "it is always impossible until it happens". I think that with the leadership of really experienced, distinguished people, including Justice Goldstone and the UN High Commissioner for Human Rights [Zeid Ra'ad Al Hussein], and the energy and imagination of a growing number of young people around the world, the ingredients are there to make what may seem impossible to some people a reality.
You have demonstrated immense courage and persistence in your career as a result of your decisions in some high-profile cases. Notably, the 1998 case involving FBI agent John Connolly Jr, in which you ordered the bureau to disclose that mobsters James Bulger and Stephen Flemmi were its informants, and your 661-page opinion outlining the bargain struck by both sides. And your controversial 2012 decision to order the Massachusetts Department of Corrections to pay for convicted murder Michelle Kosilek to receive sexual reassignment surgery while in prison. Reflecting on your career, which professional achievements do you consider your greatest?
I think you’re right to say that my work has involved persistence and sometimes what has been characterised as tenacity. You’re not the first person to kindly call me courageous. However, I actually don’t view my efforts as courageous. I’ve had the privilege of being a US judge for the last 32 years. I feel like I have just been doing my job.
I did what I understand judges are supposed to do. I talk about how a judge should perform in many countries. I say a judge should be open-minded. If he or she is the fact-finder, the judge should find the facts honestly based on the evidence, the judge should faithfully apply the laws to be interpreted to those facts, and the judge should render decisions without fear or favour. Sometimes doing that can generate a lot of work, and a lot of controversy or criticism. However, I believe this is what people who are privileged to hold my office must do.
As I go around the world, I find that there are judges in other countries striving to emulate that example, often at great risk to themselves. Whenever I speak or work abroad, I return with a heightened sense of appreciation for the opportunity to be an honest and impartial judge in the US, and a heightened sense of responsibility to do it right.
In 2012 and 2013, I was working very closely with the leaders of Turkey's Judicial Training Academy. They were striving to educate prosecutors and judges to be more expert, to be more impartial, and to be more independent. When a prosecutor made cases against members of then Prime Minister Erdoğan’s cabinet – and allegedly tape-recorded him telling his son how to get $10 million out of their house – my friends were removed from office and demoted. After the attempted coup last July, they were imprisoned. I have been working very hard to find them and help them. However, despite close collaboration with the US State Department, the UN High Commissioner for Human Rights, and Human Rights Watch, among others, I can’t even find them. Those are the judges who are courageous because they strive to be honest and impartial in countries in which those qualities are not valued and, indeed, are often punished.
In January this year, it was reported that Rolls-Royce is to pay in excess of £671 million (well over one billion Australian dollars) in penalties to avoid prosecution for allegations of bribery and corruption in the UK, US and Brazil. Do you think such financial penalties are adequate as a way of combating grand corruption?
I’m not familiar with that case. However, such cases are prosecuted under the US Foreign Corrupt Practices Act of 1977 and its counterparts in the UK and Brazil. Under these statutes, and its counterparts, only the people who pay bribes can be prosecuted and punished. The public officials who demand the bribes are not subject to prosecution. Until we have a system which is effective in holding the public officials accountable, we won’t have a system that is up to the challenge, which is why we need an international anti-corruption court.
You will be in Sydney in November for the Australian Public Sector Anti-Corruption Corruption. This is your first trip to Australia. What do you hope to achieve in that time?
There are a handful of countries that are generally regarded as punching above their weight in international human rights and related areas. Canada is one, Slovenia is one, and Australia is another. I’m hoping to find that Australia will be a leader in a campaign to create the international anti-corruption court.
The Australian Public Sector Anti-Corruption Conference will run from 14 to 16 November 2017 at the Westin Sydney. APSACC is Australia's premier corrruption and misconduct prevention forum. The 2017 program offers over 80 speakers, more than 22 sessions and six workshops. Registration opens on 29 May 2017 for early bird discounts for the conference, workshops and venue accommodation. |