Transnational Crimes of International Concern

AuthorJoseph Rikhof/Robert J Currie
As discus sed in Chapter 1, greater analytical clar ity has been found since
the concept of “international cri minal law” was broken out from the
related but mostly separate normative regi me embodied in “transnational
crimina l 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 inter face between
international law and domestic law. States are the primary movers in
both regimes, though in both, moder n developments in human rights
law have pushed the individual further towards being t he subject rather
than simply the object of the law. The ultimate goal of each is to pros-
ecute crimes and puni sh offenders, and state s are engaged in cooperative
efforts to accomplish this.
However, transnational crime and the legal principles and norms
that underpin it have char acteristics distinct from international cri me
stricto sensu. “International crime,” it will be recalled, refers to conduct
which is prohibited under international law itself, and it is international
law (primarily customary) that provides for individual li ability. Enforce-
ment against perpetrators is carried out by the intern ational community
itself — either directly (by way of trial before international courts apply-
ing international l aw) or indirectly (by way of states being permitted
to exercise jurisd iction, often universal jurisdiction, to try perpetrators
before their own courts, applying t he international law prohibition as it
Transnationa l Crimes of Internation al Concern 365
has been implemented in that st ate’s law). By contrast, the term “trans-
national crime” emerged from the cr iminology discipline and ha s been
adopted for use by both law and policy makers at the st ate and inter-
national level, particul arly in the work of the United Nations and cer-
tain 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 internat ional law, and states often util-
ize international law instruments and principles in order to cooperate
and coordinate their effort s at combating the particular crimes. Trans-
national criminal law, then, covers “the indirect suppression by inter-
national law through domestic pen al law of crimina l activities that have
actual or potential trans-boundary effects.”2 Historically, enforcement
has always been indirect; states use tran snational crimi nal law to facili-
tate the prosecution of domestic crimes before their domestic courts.3
The specif‌ic focus of this chapter i s transnational cr imes of inter-
national concern. Under this t ypology, mutual state interest in sup-
pressing certain kinds of transnational crime4 is suf f‌iciently pressing
that states are moved to create tre aties that both oblige the parties to sup-
press the particular crime and to cooperate wit h each other in so doing.
As noted in Chapter 1, these are not crimes under international law,
though there is internat ional law de aling with these crimes. The overall
goal is to coordinate the efforts of states in prosecuting tran snational
1 M Cherif Bas siouni and Eduardo Vetere suggest t hat the term was coined
around 1975 by Professor Gerh ard OW Mueller in the latter’s role as Execut ive
Secretar y of the Fifth United Nations Cong ress on the Prevention of Cri me
and the Treatment of Offen ders in Geneva (see M Cherif Bas siouni & Eduardo
Vete re, Organized Crime: A Compila tion of U.N. Documents 1975–1998 (Ardsley,
NY: Transnational, 1998) at xx xi, n 19). See also G erhard OW Mueller, “Trans-
national Cr ime: Def‌initions and Concept s” in Phil Williams & Dim itri Vlassis,
eds, Combating Transnational Crime (London: Fran k Cass, 2001).
2 Neil Boister, “‘Transn ational Crimina l Law’?” (2003) 14 EJIL 953 at 955.
3 Exceptions to th is are developing. The African Cou rt of Justice and Human and
Peoples’ Rights rec ently adopted a crimina l chamber, which has juris diction
over a number of tran snational crimes; s ee Charles C Jalloh, ed, The Africa n
Court of Justice and Hum an and Peoples’ Rights in Context (Cambridge: Cambridge
University Pre ss, 2019). There is also an act ive proposal to create a stand ing
transn ational crimina l court for Latin American a nd Caribbean state s; see Rob-
ert J Currie & Jacob L eon, “COPLA: A Transnational Cri minal Court for Latin
America & the C aribbean” (2019) 88:4 Nordic J Int’l L 587.
4 As Peter Andrea s and Ethan Nadelmann h ave observed, states are mot ivated
not only by politica l and economic interests, but by “mora lizing impulses” and
“emotional consider ations”; see Peter Andreas & Ethan Nadel mann, Policing
the Globe: Criminalization an d Crime Con trol in International Relatio ns (Oxfo rd:
Oxford Universit y Press, 2006) at vii and 228.
crimes, but the prosecutions themselves are still conducted under each
state’s domestic criminal l aws.
There is no direct liability under i nternational law for transnational
crimes of intern ational concern, though some prohibitions may even-
tually attain t he status of “international crime” under customary inter-
national law. This occurs because t he particular “treaty crime” itself
becomes universali zed among states (i.e., all states have a duty under
customary inter national law to prohibit the individual crime) and
evolves to a point where states may exercise univers al jurisdiction
to prosecute it (e.g., torture), or even where states have an obligation
to actively suppress the crime and m ay cede jurisdiction to an inter-
national court for tria l (e.g., grave breaches of the Gene va Conventio ns).5
Section B, below in this chapter, will discuss the import ant char-
acteristics of these treaties, usually refer red to as the “suppression
conventions.” The sections t hat follow will canvass the most promin-
ent of the suppression regimes that are extant today and review Ca n-
ada’s engagement with each. There are a large number of crimes t hat
are likely suitable for inclusion in this category, since there are many
different treaty regimes that could qualify. Moreover, Canada has been
an active participant in international efforts to suppress transnational
crime,6 and there is a large amount of potentially applicable Canadian
law. Accordingly, some selectivity is called for, but the reader is encour-
aged to investigate other subject matter, such as the crime of enforced
disappe arance,7 the Protocol to Eliminate Illicit Trade in Tobacco Products,8
5 (1950), 75 UNTS 31, 85, 135, and 287. This is n ot necessarily a modern s ort of
development: in United States v Arjona, 120 US 479 (1887), it was held that there
was a customa ry obligation to punish thos e counterfeiting foreign curr ency.
6 See Doug Breithaupt, “The Effect of Inter national Conventional Cr iminal Law
on Domestic Legi slative Initiatives Si nce 1990” in Oonagh Fitzgerald, ed, Th e
Globalized Rule of Law: Relation ships Between Internationa l and Domestic Law
(Toronto: Irwin Law, 2006) 573.
7 See the Inter national Convention for the Protectio n of All Persons from Enforced
Disappearance, a treaty adopted by the UN Huma n Rights Council in 2006, to
which Canad a is not party: UNGA Res 61/177, 20 December 2006, onl ine: treat- /ViewDetail s.aspx?src=TREATY&mtdsg_no=IV-16&chapter=4.
As of July 2019, it had ninety-eight sig natories and sixty pa rties. And see Priya
Pillai, “En forced Disappearance s: A Global Scourge, Increasingly Unde r the
Radar” (31 May 2019), online (blog): Opinio Juris opi /2019/05/31/
enforced-di sappearances-a-glob al-scourge-increasingl y-under-the-radar/; Susan
McCrory, “The Internation al Convention for the Protection of All Persons from
Enforced Disappearance” (2007) 7 Hum Rts L Re v 545.
8 (12 November 2012), UN Registrat ion No 55487, in force 25 September 2 018,
a&chapter=9&c lang=_e n. See Neil Boister, “The (UN-) Systematic Natu re of the

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