Introduction: Convergence of Disciplines

• Author: Joseph Rikhof/Robert J Currie
• Pages: 1-50

1

CHA PTER 1

INTRODUCTION:

CON VERGENCE

OF DISCIPLINES

A. INTRODUCTION

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).

INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW2

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: www.icj.org/

wp-content/uploads/2012/04/Report-on-Terrorism-Counter-terrorism-and-Human-

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://

www.toaep.org/ps-pdf/37-einarsen-rikhof) 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