Legal Responses to Transnational and International Crimes – Towards an Integrative Approach, edited by Harmen Van der Wilt and Christophe Paulussen, Edward Elgar Publishing, 2017, 301 pages, £90
As a triggering condition for international coordination through the suppression conventions – and thus for what we might call transnational criminal law – transnationality is a relatively vacant concept, probably because it has no obvious general moral or metaphysical content, and surprisingly little attention has been paid to it.
Neil Boister, Chapter 2, p. 33
Turn on the news on any given day and you are inundated with stories about mass atrocities, terrorism, human trafficking, piracy, money laundering, cybercrime, and so on. You hear journalists, politicians, pundits, and occasionally “experts” characterize these crimes as “international crimes.” But are they?
Because these crimes transcend national borders, having – to some extent – an international character, may give the impression that they neatly fit within the ambit of International Criminal Law. Piracy on the high seas is a good example. It most certainly has an international character, and while it has been considered an international crime, it is not in the strictest sense (or as scholars say, “international crime stricto sensu”), if one applies this definition to the “core crimes” prosecuted at the ICC, for instance. The same can be said for terrorism, human trafficking, cybercrime, and so on. It does not mean that under certain sets of circumstances, these crimes – such as cyber-terrorism – would not amount to crimes against humanity, and thus international crimes stricto sensu. Save for war crimes, crimes against humanity, and genocide (and now for some states, aggression), these crimes are generally considered transnational crimes, falling within the ambit of Transnational Criminal Law (TCL) and are punished in national, as opposed to, international courts.
Legal Responses to Transnational and International Crimes sets out to clarify the distinction between ICL and TCL, provoke thought on whether some crimes traditionally considered as transnational crimes could arguably fit under the ICL umbrella – and thus be prosecuted at the International Criminal Court (ICC) – and offer some fine examples of domestic and regional efforts in confronting both international and transnational crimes.
In Harmen Van der Wilt’s words: “The relationship between transnational crimes and ‘core crimes’ (or international crimes stricto sensu) and the quest for finding the most appropriate level of criminal law enforcement in respect of transnational crimes is the central topic of this book.” Though, he warns us not to “expect a clear-cut and commonly held conclusion,” since the objective of the book is to “increase our understanding of the ways in which crime and criminal law enforcement are interrelated.” To this end, this book delivers. A well worth read, especially for anyone who wishes to have a greater appreciation on the distinct characteristics of and the interplay between transnational crimes and international crimes stricto sensu.
Legal Responses to Transnational and International Crimes is divided into four parts, with a total of 14 relatively short chapters.
Part I sets out the conceptual framework. Chapter 2 by Neil Boister, Responding to transnational crime: the distinguishing features of transnational criminal law, is particularly inciteful and informative. Boister serves us with a tour d’horizon, effectively laying out the foundation for the entire book, tackling such issues as the possible meanings of TCL, the nature of transnational crimes and TCL, the purpose of TCL, and the effects of the character of TCL on designing institutional responses. Chapter 3 by Héctor Olásolo, Is international criminal law an appropriate mechanism to deal with organized crime in a global society?, is also interesting. Olásolo ponders, without taking a dogmatic position (which I appreciated), the possibility of whether some organized criminal activity should be regulated by ICL (and perhaps be prosecuted at the ICC) in that they, in his opinion, constitute crimes against humanity. Though I am not entirely convinced of some of the arguments he puts forward, they are noteworthy, deserving contemplation.
Part II is a medley of seven chapters dealing with specific crimes: piracy, terrorism, cybercrime, grand corruption, and money laundering. All seven chapters are solid. I was particularly impressed by Marta Bo’s treatment of piracy (Chapter 4), Alejandro Chehtman’s discourse on the conceptional divide between ICL and TCL concerning terrorism (Chapter 6), and Ilias Bantekas’ discussion of international law perspectives on cybercrime and its sovereign spaces (Chapter 7).
Part III, composed of two chapters, deals with fair trial rights issues. I found both chapters highly informative. Maria Laura Ferioli succinctly sets out some of the fair trial rights challenges defendants face in transnational and international cooperation (Chapter 11), while Sabine Gless excels in highlighting the non-recognition of, and greater need for, cooperation in the application of ne bis in idem (a defendant’s right not to be tried twice for the same crime – also known as “double jeopardy”) in TCL (Chapter 12).
Part IV provides two excellent regional studies. Charles Chernor Jalloh’s treatment of the distinction between international and transnational crimes in the African Court of Justice and Human and Peoples’ Rights (Chapter 14) is superb. Not only do we learn quite a bit about the criminal law section of this court, but Jalloh also walks us through the crimes falling under this court’s jurisdiction. In doing so, Jalloh shows how these crimes generally fit M. Cherif Bassiouni’s conceptual framework of what constitutes international crimes by looking at policy guidelines (Bassiouni identified five) and then looking at the features (Bassiouni identified 10) that make certain conduct an international crime in international treaty law.1 See M. CHERIF BASSIOUNI, INTRODUCTION TO INTERNATIONAL CRIMINAL LAW: SECOND REVISED EDITION 142-45 (Martinus Nijhoff Publishers 2013).
Legal Responses to Transnational and International Crimes may not go into the weeds, but it is packed with useful information and thought-provoking ideas on TCL and how it is distinct from, yet intertwined, with ICL.
|↑1||See M. CHERIF BASSIOUNI, INTRODUCTION TO INTERNATIONAL CRIMINAL LAW: SECOND REVISED EDITION 142-45 (Martinus Nijhoff Publishers 2013).|