Transnational Crimes of International Concern

• Author: Robert J. Currie
• Profession: Schulich School of Law, Dalhousie University
• Pages: 303-406

303

CHA PTER 7

TR ANSNATIONAL

CRIMES OF

INTERNATIONAL

CONCER N

A. INTRODUCTION

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

the concept of “i nternational crimina l law” is broken out from the re-

lated but mostly separate normative regime embodied in “transnational

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

law and have in common both i nternational law sources — custom,

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

international law and domestic law. States are t he 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 t he object of the law. The ultimate goal of each is to pros-

ecute crimes and punish offenders, and states are engaged in coopera-

tive efforts to accomplish this.

However, transnat ional crime and t he legal principles and norms

which underpin it have characteristics distinct from international crime

stricto sensu. “International 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 car ried out by the international

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

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

ing per mitted to exerci se jur isdiction, often un iversal jurisdiction, to

try perpetrators before their own courts, applying international law

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW304

as it has been implemented in t hat state’s law). By contrast, the term

“transnational crime” emerged from the criminology discipline and

has been adopted for use by both law and policy m akers at t he st ate

and international level, part icularly in t he 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 inter-

ests 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 internationa l law instruments and principles in order to cooper-

ate and coordin ate their efforts at combating the particular crimes.

Transnational crimina l law, then, covers “the ind irect suppression by

international law through domestic penal law of criminal activities

that h ave actual or potential tra ns-boundar y effects.”2 Enforcement is

always indirect; st ates u se tr ansnational criminal l aw to facilitate the

prosecution of domestic crimes before their domestic courts.

The specif‌ic focus of this chapter i s transnational crimes of inter-

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

pressing certain kinds of transn ational crime3 is suff‌iciently pressing

that st ates are moved to create t reaties that both oblige the pa rties to

suppress t he par ticular 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 t hese crimes. The

overall goal is to coordinate the efforts of st ates 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 transnational

crimes of international concern, though some prohibitions may even-

tually attain the status of “international cri me” under customary inter-

national law. This occurs because the particula r “treaty crime” itself

1 Bassiouni a nd Vetere suggest th at the term was coined around 1975 by Pro-

fessor Gerha rd O.W. Mueller in the latter ’s role as Executive Secretar y of the

Fifth United Nat ions Congress on the Prevent ion of Crime and the Treatment

of Offenders in Gene va (see M. Cherif Bassiouni & Edu ardo Vetere, Organized

Crime: A Compilation of U.N. Docume nts 1975–1998 (Ardsley, NY: Transnational,

1998) at xxxi, n. 19). See also Gerhard O.W. Mueller, “Transnational Cri me:

Def‌initions a nd Concepts” in Phil Willia ms & Dimitri Vlass is, eds., Combating

Transnational Crime (London: Fra nk Cass, 2001).

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

3 As Andrea s and Nadelmann have obser ved, states are motivated not on ly by

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

consideration s”; see Peter Andreas & Et han Nadelmann, Policing the Globe:

Criminalization and Crime Cont rol in International Relatio ns (Oxford: Oxford

University Pre ss, 2006) at vii and 228.

Transnationa l Crimes of Internation al Concern 305

becomes univers alized among state s (i.e., all states h ave a duty under

customary intern ational 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 act-

ively suppress the cr ime and may cede jurisdiction to an international

court for trial (e.g., grave breaches of the Geneva Conventions).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 wil l canvass the most import ant

of the suppression regime s 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 regi mes which could qualify. Moreover, Canada has been

an active pa rticipant in international efforts to suppress transnational

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

law. Accordingly, some selectivity is cal led for, and the cri mes to be

dealt with are those wh ich are most signif‌icant.6

B. THE SUPPRESSION CONVENTIONS

1) History and Development

The suppression conventions are those treaties, usually multilateral,

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

pression efforts between them. The offences concerned are sometimes

called “treaty crimes,”7 though as will be seen, this phrase is a better

4 (1950), 75 U.N.T.S. 31, 85, 135, and 287.

5 See Doug Breithaupt , “The Effect of International Convent ional Criminal L aw

on Domestic Legi slative Initiatives Si nce 1990” in Oonagh Fitzgerald, ed., The

Globalized Rule of Law: Relation ships between Internation al and Domestic Law

(Toronto: Irwin Law, 2006) 573.

6 Not dealt with here i s the International Conve ntion for the Protection of All

Persons from Enforced Disappea rance, a treaty adopted by the UN Hum an Rights

Council in 200 6 (UNGA Res. 61/177, 20 December 2006). The text of the t reaty

and its statu s can be found online: ww w2.ohchr.org/english/ law/disappearance-

convention.htm. As of June 20 09 it had 81 signatories but only 10 part ies. And

see Susan McCror y, “The Internationa l Convention for the Protection of All Persons

from Enforced Disappearance” (2007) 7 Hum. Rt s. L. Rev. 545.

7 This phras e was used during the negoti ations towards the formul ation of the

Rome Statute, 2187 U.N.T.S. 3, entered into force 1 July 2002; see Off‌icia l Rec-

ords, Vol. II, Summar y Records of the Meetings of the Com mittee of the Whole,

UN DOC. A.Conf.183/13 at 172, para. 37. See also Patrick Robi nson, “The Mis-

sing Crime s” in Antonio Cassese et al., ed s., The Rome Statute of the Internat ion-