Transnational Crimes of International Concern

• Author: Robert J Currie, Dr Joseph Rikhof
• Pages: 325-436

325

CHAPTER 7

TRANSNATIONAL

CRIMES OF

INTERNATIONAL

CONCERN

A. INTRODUCTION

As discussed in Chapter 1, greater analytical clarity is to be found if

the concept of “international criminal law” is broken out from the re-

lated but mostly separate normat ive regime embodied in “transnational

criminal law.” To be sure, both are subdivisions of public international

law and have in common both international law sources—custom,

treaty, state practice, soft law, and so on—and an interface between

international law and domestic law. States are the primary movers in

both regimes, though in both, modern developments in human rights

law have pushed the individual further towards being the subject

rather than simply the object of the law. The ultimate goal of each is

to prosecute crimes and punish offenders, and states are engaged in

cooperative efforts to accomplish this.

However, transnational crime and the legal principles and norms

that underpin it have characteristics distinct from international crime

stricto sensu. “Intern ational crime,” it will be recalled, refers to conduct

which is prohibited under international law itself, and it is internation-

al law (primarily customary) that provides for individual liability.

Enforcement against perpetrators is carried out by the international

community itself —either directly (by way of trial before international

courts applying international law) or indirectly (by way of states be-

ing permitted to exercise jurisdiction, often universal jurisdiction, to

try perpetrators before their own courts, applying the international

INTERNATIONAL AND TR ANSNATIONAL CRIMINAL LAW326

law prohibition as it has been implemented in that state’s law). By con-

trast, the term “transnational crime” emerged from the criminology

discipline and has been adopted for use by both law and policy mak-

ers at the state and international level, particularly in the work of the

United Nations and certain bodies of the European Union.1 In its most

general sense, it refers to domestic or “common” crimes that affect or

engage the interests of more than one state when they are committed.

As soon as more than one state is engaged, so too is international law,

and states often utilize international law instruments and principles in

order to cooperate and coordinate their efforts at combating the par-

ticular crimes. Transnational criminal law, then, covers “the indirect

suppression by international law through domestic penal law of crim-

inal activities that have actual or potential trans-boundary effects.”2

Enforcement is always indirect; states use transnational criminal law

to facilitate the prosecution of domestic crimes before their domestic

courts.

The specif‌ic focus of this chapter is transnational crimes of inter-

national concern. Under this typology, mutual state interest in sup-

pressing certain kinds of transnational crime3 is suff‌iciently pressing

that states are moved to create treaties that both oblige the parties to

suppress the particular crime and to cooperate with each other in so

doing. As noted in Chapter 1, these are not crimes under international

law, though there is international law dealing with these crimes. The

overall goal is to coordinate the efforts of states in prosecuting trans-

national crimes, but the prosecutions themselves are still conducted

under each state’s domestic criminal laws.

There is no direct liability under international law for transnation-

al crimes of international concern, though some prohibitions may

eventually attain the status of “international crime” under customary

1Bassiouni a nd Vetere sug gest that the term wa s coined around 1975 by Profes-

sor Gerhard OW Mueller i n the latter’s role as Executive Secr etary of the Fifth

United Nations Con gress on the Prevention of Cr ime and the Treatment of Of-

fenders in Geneva (see M Cher if Bassiouni & Eduardo Vetere, Organized Crime:

A Compilation of U.N. Document s 1975–1998 (Ardsley, NY: Transnation al, 1998)

at xxxi, n 19). See also Gerh ard OW Mueller, “Tran snational Crime: De f‌initions

and Concepts” in Phil Williams & Dimitri Vlassis, eds, Combating Transnation-

al Crime (London: Frank Cass, 2 001).

2Neil Boister, “‘Transn ational Crimina l Law’?” (2003) 14 EJIL 953 at 955.

3As Andreas a nd Nadelmann have obser ved, states are motivated not only b y

political and e conomic interests, but by “morali zing impulses” and “emotion al

consideration s”; see Peter And reas & Ethan Nadelman n, Policing the Globe:

Criminalization and Crime Control in Inte rnational Relations (Oxford : Oxford

University Pre ss, 2006) at vii and 228.

Transnation al Crimes of Internat ional Concern327

international law. This occurs because the particular “treaty crime”

itself becomes universalized among states (i.e., all states have a duty

under customary international law to prohibit the individual crime)

and evolves to a point where states may exercise universal jurisdiction

to prosecute it (e.g., torture), or even where states have an obligation

to actively suppress the crime and may cede jurisdiction to an inter-

national court for tria l (e.g., grave breaches of the Gene va Conventio ns).4

Section B, below in this chapter, will discuss the important charac-

teristics of these treaties, usually referred to as the “suppression con-

ventions.” The sections that follow will canvass the most important

of the suppression regimes that are extant today and review Canada’s

engagement with each. There are a large number of crimes which are

likely suitable for inclusion in this category, since there are many dif-

ferent treaty regimes that could qualify. Moreover, Canada has been

an active participant in international efforts to suppress transnational

crime,5 and there is a large amount of potentially applicable Canadian

law. Accordingly, some selectivity is called for, and the crimes to be

dealt with are those that are most signif‌icant.6

B.THE SUPPRESSION CONVENTIONS

1)History and Development

The suppression conventions are those treaties, usually multi-lateral,

which are concluded between states in order to coordinate crime sup-

4(1950), 75 UNTS 31, 85, 135, and 287. Thi s is not necessarily a moder n sort of

development: in United State s v Arjona, 120 US 479 (1887), it was held th at there

was a customa ry obligation to punish thos e counterfeiting foreign curre ncy.

5See Doug Breithaupt, “The Effec t of International Convention al Criminal La w

on Domestic Legi slative Initiatives si nce 1990” in Oonagh Fitzgerald, ed, Th e

Globalized Rule of Law: Relationships be tween International and Do mestic Law

(Toronto: Irwin Law, 2006) 573.

6Not dealt with here is the Inte rnational Convention for the Protect ion of All

Persons from Enforced Disappearance, a treaty adopted by t he UN Human Rights

Council in 200 6 (UNGA Res 61/177, 20 Decembe r 2006). The tex t of the treaty

and its statu s can be found online: ww w2.ohchr.org/eng lish (select “The core

internat ional human rights in struments” link). As of October 2013, it had

ninety-thre e signatories and forty p arties. And see Susan McC rory, “The Inter-

national Convent ion for the Protection of All Persons from Enforced Disappearance”

(2007) 7 Hum Rts L Rev 545. The United Nation s Off‌ice on Drugs and Crime

(UNODC) has recently ramped up efforts to coordinate suppression of illicit

traff‌ick ing of protected wildlife and pl ants; see UNODC online: ww w.unodc.

org/unodc/en/wildlife-and-forest-crime/index.html.