Transnational Crimes of International Concern

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

325

CHAP TER 7

TR ANSNATIONAL

CRIMES OF

INTERNATIONAL

CONCER N

A. INTRODUC TION

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 intern ational law sources — custom,

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

international law and domestic law. States are the primar y movers in

both regime s, though in both, modern deve lopments in human rights

law have pushed the individual further towards bei ng 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 thi s.

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 (primar ily customary) that provides for individual liability.

Enforcement against perpetrators is carried out by the internationa l

community itself —either di rectly (by way of tria l before international

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

ing permitted to exercis e jurisdiction, often universa l jurisdiction, to

try perpetrators before their own courts, applying the international

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW326

law prohibition as it has been implemented in that st ate’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 bodie s 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 i s international law,

and states often utilize international law instruments and principles in

order to cooperate and coordinate their efforts at combating t he par-

ticular crimes. Transnational crim inal law, then, covers “the indirect

suppression by international l aw through domestic penal l aw 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 tra nsnational crimes of inter-

national concern. Under this t ypology, 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 w ith each other in so

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

law, though there is international law deali ng with these cr imes. The

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

national crimes, but the prosecutions themselves are still conducted

under each state’s domestic crim inal laws.

There is no direct liability under inter national law for transnation-

al crimes of international concern, though some prohibitions may

eventually attain the status of “international crime” under customary

1 Bassiouni 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).

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

3 As 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 Concern 327

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

itself becomes univers alized among state s (i.e., all states have a duty

under customary inter national law to prohibit the indiv idual crime)

and evolves to a point where states may exercise universal juris diction

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 d iscuss the import ant 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 th at are extant today and rev iew Canada’s

engagement with each. There are a large number of crimes wh ich are

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

ferent treaty regimes th at 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 Can adian

law. Accordingly, some selectiv ity is called for, and the cri mes to be

dealt with are those t hat are most signif‌ica nt.6

B. THE SUPPRESSION CONVEN TIONS

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.

5 See 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.

6 Not 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 Inte r-

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.