Introduction: Convergence of Disciplines

AuthorJoseph Rikhof/Robert J Currie
To the person who says he knows nothing about international and
transnational crime, the reply would have to be, “But of course you
do; it is all around us; it is constantly in the med ia.” Indeed, it is not
hyperbole to state that over the la st three decades internat ional and
transnational crime have come to permeate a large par t of the modern
political, legal, and social agendas of both states and the world at large.
As a case in point, what is arguably the most prominent and far-reach-
ing socio-political event in modern h istory — the attacks on the World
Trade Center and the Pentagon on 11 September 2001 was a mani-
festation of international ter rorism, a phenomenon already well known
to the world community. It was “transnational” in the truest sense of
the word: it involved, as is well known, an attack in t he United States
by a group of mostly Saudi nationals who were members of a shad-
owy organization that was being at least loosely run f rom Afghanistan.
The victims of the attack s were nationals of several countries. Persons
allegedly involved in planning the att ack were apprehended and sub-
jected to trial in t he United States, the United Kingdom, and France.
Others were transported to secret detention sites in still other states
(sometimes without the knowledge of these states), interrogated, and
subjected to torture — which is itself an international cri me.1
1 See Open Society Justice Initiative, Globalizing Torture: CIA Secret Detention and
Extraordinary Rendition (New York: Open Society Foundations, 2013).
This horrendous crime was a forceful rem inder that crime is not
now (if it ever was) a matter only of concern to domestic victims, police,
and prosecutors, and that crime suppre ssion 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,
increased and sometime s dubious enforcement of “security” goals by
governments worldwide, the undermini ng of international human
rights standa rds, and attempts to squelch legitimate public debate about
the eff‌icacy of these ef forts.2 Other horrendous crimes have led to sig-
nif‌icant internat ional reaction. The international media has be en full of
reports about the atrocities th at occurred dur ing and after the breakup
of the former Yugoslavia, the genocide that took place in Rwanda in
1994, and more recently the horrif‌ic carnage w rought by government
and militia forces in t he Darfur region of the Sudan, the ongoing armed
conf‌lict in Syria, and the atrocities in Myanmar.
And yet it is not just international and transnational cri me, but
the bodies of law attaching to these phenomena, which are alive in
the media and in the public imagination. In particular, the enforce-
ment of what has traditional ly been called “internat ional criminal l aw”
(ICL) has been very visible. One need only consider the prosecutions
undertaken against former heads of state alone, which would have
been unheard of twenty yea rs ago: the arrest of former Chilean dicta-
tor Augusto Pinochet in the United Kingdom on the basis that he was
wanted for crimes by a Spani sh magistrate;3 the tr ial of Serbian strong-
man Slobod an Milosević before the Inter national Criminal Tribunal for
the former Yugoslavia (ICTY), the f‌irst sitting head of government to
be indicted and tried by a n international criminal tribuna l;4 the trial,
conviction, and execution of deposed Iraqi dictator Saddam Hus sein
before an Iraqi court for international cr imes committed while he was
2 “[T]he events of 11 September 2001 became a catalyst for the systematic disregard
of established international rules on human rights, the treatment of combatant
prisoners and the use of military force around the world.” (Philippe Sands, Lawless
World: Making and Breaking Global Rules, rev ed (London: Penguin, 2006) at 21).
See also International Commission of Jurists, Assessing Damage, Urging Action:
Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights
(Geneva: International Commission of Jurists, 2009), online:
Rights-Eminent-Jurists-Panel-on-Terrorism-series-2009.pdf .
3 R v Bow Street Magistrate, ex 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).
Introduction: C onvergence of Disciplines 3
in off‌ice;5 the conviction of former Rwandan prime mi nister Jean Kam-
banda by the International Criminal Tribuna l for Rwanda (ICTR);6 the
conviction of former Liberian president Cha rles Taylor before the Spe-
cial Court for Sierra Leone;7 the trial of Khieu Samphan, the former
president of Democratic Kampuchea by the Ext raordinary Cha mbers
in the Courts of Cambo dia;8 and the indictments of Sudanese President
Omar Al Bashi r, as well as the former head s of state of Libya (Muammar
Gaddaf‌i) and Côte d’Ivoire (Laurent Gbagbo) by the International Crim-
ina l Court (ICC).9
5 Michael Scharf, Saddam on Trial: Understanding and Debating the Iraqi High Tribu-
nal (Durham, NC: Carolina Academic Press, 2006); Michael Newton & Michael
Scharf, Enemy of the State: The Trial and Execution of Saddam Hussein (New York:
St Martin’s Press, 2008).
6 Kambanda (ICTR-97-23-A), Appeals Chamber Judgment, 19 October 2000.
7 Taylor (SCSL-03-01-T).
8 Samphan (002/19-09-2007-ECCC-OCIJ), Closing Order (Indictment), Trial Chamber
Judgment, 18 May 2012, Off‌ice of the Co-Investigating Judges, 15 September 2010.
9 Al Bashir (ICC-02/05-01/09), Warrant of Arrest Issued by Pre-Trial Chamber I,
4 March 2009 and Al Bashir (ICC-02/05-01/09), Second Warrant of Arrest Issued
by Pre-Trial Chamber I, 12 July 2010; for a more detailed discussion, see Terje
Einarsen & Joseph Rikhof, “A Theory of Punishable Participation in Universal
Crimes” (Brussels, Torkel Opsahl Academic EPublisher, 2018, online: https:// at 141–44. In addition, there have
been thirteen attempts at the domestic level to take action against former heads
of state since 1992. In South and Central America, Argentina has indicted three
former presidents, namely Isabel Perón, Jorge Videla (who is also the subject of
arrest warrants from Italy and Germany), and Reynaldo Bignone, while Chile
did the same with Augusto Pinochet, Peru with Alberto Fujimori, Uruguay with
Gregorio Alvarez, Bolivia with Gonzalo Sánchez de Lozada, and Guatemala
with Oscar Mejía Víctores and Efraín Ríos Montt. In Mexico, former president
Luis Echeverría was tried for commission of genocide, albeit in his capacity as
Minister of the Interior at the time of the crime, but he was acquitted in 2007. In
addition, former president of Guatemala Ríos Montt was indicted by Spain and
convicted in Guatemala, while the former president of Uruguay, Juan Bordaberry,
has been indicted by Italy. Also in Italy, former military dictator Francisco Morales
Bermúdez of Peru and former dictator Luis García Meza of Bolivia were sentenced
to life imprisonment in absentia. In the Middle East, the Iraqi High Tribunal com-
pleted proceedings against Saddam Hussein in 2006, resulting in his execution the
same year. In Africa, Mengistu Haile Mariam of Ethiopia was sentenced to death
in May 2008, but he remains at large in Zimbabwe. The case of Jean-Claude “Baby
Doc” Duvalier of Haiti is not included, as he was investigated for but not charged
with crimes against humanity. Of the actions taken against the twenty-three state
leaders, seventeen have gone to trial; of these seventeen, thirteen (Kambanda, Sad-
dam Hussein, Mengistu, Fujimori, Alvarez, Videla, Bignone, Taylor, Montt, Habré,
Samphan, Bermudez, and Meza, the last two in absentia) were convicted, while
one proceeding (Mejia) is ongoing, one person died during his trial (Milosević),
and two others were acquitted (Echeverria and Gbagbo). The trials of the other six

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