Introduction: Convergence of Disciplines

• Author: Robert J Currie, Dr Joseph Rikhof
• Pages: 1-49

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CHAP TER 1

INTRODUCTION:

CONVERGENCE

OF DISCIPLINES

A. INTRODUCTION

To the person who says he knows nothing about international and t rans-

national crime, the reply would have to be, “But of course you do; it is all

around us; it is constantly in t he media.” Indeed, it is not hyperbole to

state that over the last decade international and tr ansnational crime have

come to permeate a large part of the moder n political, legal, and social

agendas of both states and t he world at large. As a case in point, what

is arguably the most prominent and far-reaching socio-political event in

modern history —the attacks on the World Trade Center and the Penta-

gon on 11 September 2001—was a manifest ation of international ter-

rorism, a phenomenon already well known to the world community. It

was “transnat ional” in the truest sen se of the word: it involved, as is well

known, an attack in the United States by a group of mostly Saudi nation-

als who were members of a shadowy organiz ation that was being at least

loosely run from Afghani stan. The victims of the attacks were national s of

several countries. Persons a llegedly involved in planning the att ack were

apprehended and subjected to trial in the United States, the United King-

dom, and France. Others were trans ported to secret detention sites in still

other states (sometimes without the knowledge of these states), interro-

gated, and subjected to torture —which is itself an international crime.1

1 See Open Societ y Justice Initiative, Globaliz ing Torture: CIA Secret Detentio n and

Extraordinary Ren dition (New York: Open Society Foundations, 2013).

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW2

This horrendous crime was a forceful reminder that crime is not

now (if it ever was) a matter only of concern to domestic victim s, police,

and prosecutors, and that cri me suppression cannot stop at the borders

of any one state. The reactions to and effects of 9/11 have been global

in scope; they have included armed attacks on two sovereign states, in-

creased and sometimes dubious enforcement of “security” goals by gov-

ernments worldwide, the undermining of international human right s

standards, and attempts to squelch legitimate public debate about the

eff‌icacy of these efforts.2 Other horrendous crimes have led to signif‌i-

cant international re action. The international media h as been full of

reports about the atrocities t hat occurred during and after the breakup

of the former Yugoslavia, the genocide that took place in Rwanda in

1994, and more recently the horrif‌ic carnage wrought by government

and militia forces in t he Darfur region of the Sudan, as wel l as the on-

going armed conf‌lict in Syri a.

And yet it is not just international and t ransnational c rime, but

the bodies of law attachi ng to these phenomena, which are alive in the

media and in the public imag ination. In particul ar, the enforcement of

what has traditionally been called “international criminal law” (ICL) has

been very visible. One need only consider the prosecutions undertaken

against former heads of state alone, which would have been un heard of

twenty years ago: the arrest of former Chi lean dictator Augusto Pinochet

in the United Kingdom on the basis that he was wanted for cri mes by a

Spanish magistrate;3 the trial of Serbia n strongman Slobodan Milosević

before the International Cri minal Tribunal for the former Yugoslavia

(ICTY), the f‌irst sitting head of government to be indicted and tried by

an international criminal tribunal;4 the trial, conviction, and execution

of deposed Iraqi dictator Saddam Hussein before an Iraqi court for inter-

national crimes committed while he was in off‌ice;5 the conviction of

2 “[T]he events of 11 September 2001 beca me a catalyst for the systematic d isre-

gard of establ ished international r ules on human rights, t he treatment of com-

batant pris oners and the use of milita ry force around the world . . . .” (Philippe

Sands, Lawless World: Making and Breaking Global Rules, rev ed (London:

Penguin, 200 6) at 21). See also Internationa l Commission of Jurist s, Assessing

Damage, Urging Action: Repor t of the Eminent Jurists Panel on Terrorism, Counter-

terrorism and Human Rights (Geneva: International C ommission of Jurists,

2009), online: www.icj.org/IMG/EJP-report.pdf.

3R v Bow Street Magistrate, e x parte Pinochet (No 3), [2000] 1 AC 147 (HL).

4 Which was brought to an untimely end by the defendant’s death due to illness

on 11 March 2006. See Michael Scharf & William Schabas, Slobodan Milosevic

on Trial: A Companion (New York: Continuum, 2002).

5 Mariam Ka rouny, “Saddam Execute d at Dawn” The Globe and Mail (30 Decem-

ber 2006) A1. See Michae l Scharf, Saddam on Trial: Understanding and Debating

Introduction: Convergence of Disciplines 3

former Rwandan prime minister Jean Kambanda by the International

Criminal Tribunal for Rwanda (ICTR);6 the conviction of former Liber-

ian president Charles Taylor before the Special Court for Sierra Leone;7

the trial of Kh ieu Samphan, the former president of Democratic Kampu-

chea by the Extraordinary Chambers in the Courts of Cambodia;8 and

the indictments of Sudanese President Omar Al Bashir, as well as the

former heads of state of Libya (Muammar Gaddaf‌i) and Côte d’Ivoire

(Laurent Gbagbo) by the International Criminal Court (ICC).9

the Iraqi High Tribunal (Durham, NC: Caroli na Academic Press, 2006); Michael

Newton & Michael S charf, Enemy of the State: The Trial and Execution of Saddam

Hussein (New York: St Martin’s Pre ss, 2008).

6Kambanda (ICTR-97-23-A), Appeals Chambe r Judgment, 19 October 2000.

7Tayl or (SCS L-03 -01-T).

8 (C ase File No 002/19-09-2007-ECCC-OCIJ), Closing Order (Indictment), Off‌ice

of the Co-Invest igating Judges, 15 September 2010.

9Al Bashir (ICC-02/05-01/09), Warrant of Ar rest Issued by Pre-Trial Chamber

I, 4 March 2009 an d Al Bashir (ICC-02/05-01/09), Second Warrant of Arrest Is-

sued by Pre-Trial Chamb er I, 12 July 2010. In addition, there h ave been thir-

teen attempts at the dome stic level to take action again st former heads of state

since 1992. In South and Cent ral America, Argenti na has indicted thr ee former

presidents, na mely Isabel Perón, Jorge Videla (who is also the subject of ar rest

warrant s from Italy and Germany), and Reyna ldo Bignone, while Chile did the

same with Augu sto Pinochet, Peru with Alb erto Fujimori, Uruquay wit h Grego-

rio Alvarez, B olivia with Gonza lo Sánchez de Lozada, and Guatem ala with Oscar

Mejia Victores. In Mex ico, former president Luis Echeverr ia was tried for the

commission of genoc ide, albeit while at the time in hi s capacity as Ministe r of

the Interior, but he was acqu itted in 2007. As well, the former president of Guat e-

mala, Efr ain Rios Montt, has been i ndicted by Spain and convicted i n Guatemala

(although the convict ion was overturned by its Con stitutional Court), while the

former president of Urug uay, Juan Bordaberry, has been in dicted by Italy. In Af-

rica, Mengi stu Haile Mariam of Et hiopia was sentenced to deat h in Ethiopia but

he remains at l arge in Zimbabwe, while in Senegal t he former president of Chad,

Hissène Habr é, was indicted in 2013. Of the actions ta ken against the twenty-

one state leaders, t hirteen have been put on tr ial; of these thirt een, nine (Kam-

banda, Sadda m Hussein, Mengistu, Fujimor i, Alvarez, Videla, Bignone, Taylor,

and Montt) were convicted, wh ile two proceedings (Samphan a nd Mejia) are

ongoing, one person die d during his tria l (Milosević), and another was acquitte d

(Echeverria). The tri als of the other eight person s were not commenced. Of these

proceedings, t wo have been permanentl y suspended because of the de ath of the

suspect (Pinoc het and Gaddaf‌i); one has been temporar ily suspended as a resu lt

of non-compliance w ith extradition reque sts by other countries (Perón by Spa in)

even though she had bee n indicted, and in the remai ning f‌ive cases indict ments

have been iss ued (Al Bashir, Gbagbo, Bordaberr y, Lozada, and Ha bré); see Joseph

Rikhof, “Fewer Place s to Hide? The Impact of Domestic War Crimes Pros ecu-

tions on Inter national Impunity” in Mor ten Bergsmo, ed, Complementarity a nd

the Exercise of Universal Jur isdiction for Core Internation al Crimes (Oslo: Torkel

Opsahl Ac ademic EPublisher, 2010) at 65–67.