Transnational Crimes of International Concern

• Author: Joseph Rikhof/Robert J Currie
• Pages: 364-478

364

CHA PTER 7

TR ANSNATIONAL CRIMES

OF INTERNATIONAL

CONCER N

A. INTRODUC TION

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.

INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW366

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-

ies.un.org/pages /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 niojuris.org /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,

online: treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IX-4-

a&chapter=9&c lang=_e n. See Neil Boister, “The (UN-) Systematic Natu re of the