Hilton on the Park, Melbourne, Australia 29-30 November 2004
CONFERENCE PAPER:
TRANSNATIONAL ORGANISED CRIME AND THE
INTERNATIONAL CRIMINAL COURT
Towards Global Criminal Justice
Dr Andreas Schloenhardt The University of Queensland
Transnational Organised Crime and the International Criminal Court
-- Towards Global Criminal Justice
#DR ANDREAS SCHLOENHARDT*
Speaking Notes, Crime in Australia: International Connections, Australian Institute of Criminology Conference, Melbourne, 29-30 November 2004
In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realization. We will do our part to see it through till the end. We ask you […] to do yours in our struggle to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished.1
1. Introduction
On 1 July 2002, the International Criminal Court (ICC) came into existence, marking the end of over fifty years of elaborations to create a permanent global court to prosecute particularly heinous crimes of international significance. The Rome Statute of the International Criminal Court2 now has 139 Signatories with further countries expected to accede.3
The creation of the ICC is a milestone towards building a global criminal justice system. Like no other institution, it has the ability to bring to justice those accused of the most serious of criminal offences who will no longer be able to escape prosecution by hiding behind national legal obstacles which prevent their trial.
# This paper was first presented (in an extended version) at the Liu Institute for Global Studies, University of
British Columbia, Vancouver, Canada, 5 November 2004. The full text of this study will be published in volume 24, no 1 of the University of Queensland Law Journal.
* Lecturer, The University of Queensland T C Beirne School of Law, Brisbane Qld 4172, Australia,
andreas.schloenhardt@adelaide.edu.au.
1 UN Secretary General Mr Kofi Annan at the UN Conference of Plenipotentiaries on the Establishment of an
International Criminal Court, 15 June-17 July 1998, Rome, Italy.
2 Rome Statute of the International Criminal Court, 2187 UNTS 3, 37 ILM 999 (1998), UN Doc
A/CONF.183/9 (17 July 1998) [hereinafter ICC Statute].
Unfortunately the great majority of transnational organised crimes is outside the jurisdiction of the International Criminal Court. Attempts to include crimes such as trafficking in drugs into the ICC Statute were met by great opposition so that the final text of the ICC Statute restricts the Court’s jurisdiction only to three-and-a-half crimes, art 5: genocide, art 6; crimes against humanity, art 7; war crimes, art 9; and the yet to be defined and finalised crime of aggression.
Despite the strict limitation of the ICC’s jurisdiction, the creation of the Court has generated the idea, and perhaps the ambition, to strengthen the universal criminalisation of transnational organised crimes by allowing their prosecution through an international authority, especially in instances when national agencies do not have the ability, capacity, or political will to prosecute or extradite alleged offenders. There is some debate in judicial and academic circles whether the existing offences under the ICC Statute may, potentially, encompass some transnational organised crimes and whether the Statute should be expanded to include crimes that have been recognised in international treaties. This debate, and its evolution, are the topic of this presentation.
Background: existing law
The current system of international criminal law conventions leaves too many loopholes for criminals, it allows for too many concessions which can be made by Signatories, and it has in many instances failed to bring the principal organisers of global criminal operations to justice. While the treaties on transnational organised crime, migrant smuggling, trafficking in persons, arms smuggling etc have created a system for Signatories to deal with alleged perpetrators by either prosecuting or extraditing them,4 and have established a basic framework for mutual legal assistance and judicial cooperation,5 perhaps the greatest failure of the existing regime is that it leaves enforcement, prosecution, and punishment of the offences to individual nations. The current system has failed to establish mechanisms that ensure that suspected offenders are indeed arrested, properly charged, investigated, prosecuted, and punished fairly and adequately.6
It is this reliance on national action which creates the greatest obstacle towards effective action against transnational organised crime and which has created so many safe havens for drug producers and traffickers, money launderers and other suspects. This is most convincingly demonstrated in the drug industry which is booming in countries such as Afghanistan and Myanmar, or the money laundering that is occurring in many South Pacific and Caribbean nations. The opportunities offered by globalisation have enabled sophisticated criminal organisations to take advantage of the discrepancies in different legal systems and the non-cooperative attitude expressed by many nations.
It is for this reason, that there is a strong argument to centralise powers to investigate, prosecute and punish transnational organised crime in an international agency which complements the activities of national authorities and is activated when those agencies are unable, incapable, or unwilling to intervene. Giving an International Criminal Court 4 See, for example, art 6(9) Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. 5 See, for example, arts 18, 19, 21 Convention against Transnational Organised Crime; arts 7, 9 Vienna
Convention.
6 On the principle aut dedere aut judicare generally see M Cherif Bassiouni & Edward M Wise, Aut Dedere aut
Judicare: The Duty to Prosecute of Extradite in International Law (Kluwer, 1995) 3-69. On extradition for
drug trafficking see Faiza Patel, “Crime without Frontiers: A Proposal for an International Narcotics Court” (1989-90) 22 NYU Journal Int’l Law & Politics 709 at 719-723.
jurisdiction over crimes such a narcotrafficking, migrant smuggling, trafficking in persons, arms smuggling, money laundering and the like will mean greater certainty of arresting, prosecuting, and punishing those who engage in these crimes. The ICC would make international law enforcement more efficient and add another layer of criminal justice; it would provide another forum for prosecution in addition to those established at national levels.
History
The idea of an international criminal court can be traced back to the aftermath of the Word War I and the early days of the League of Nations. These ideas became more substantive after World War II with the conclusion of the Genocide Convention in 19487 which in Article 6 suggests that persons charged with the offence of genocide shall be tried either before domestic courts or by “such international penal tribunal as may have jurisdiction”. To enforce the provisions of the Convention, the UN General Assembly Resolution recommended that the International Law Commission (ILC) “prepare a Draft Code of Offences against the Peace and Security of Mankind.8 A first draft was presented by the ILC in 1951,9 followed by a second draft in 1953-54.10 However, the division of the Cold War between the Socialist and Western blocs hindered any further discussion of an international criminal court for the following 36 years.11
The establishment of the International Criminal Court as it exists today, goes back to an initiative of the year 1989 in which Trinidad and Tobago made a request to the UN General Assembly to explore the possibility of establishing an international court with jurisdiction over drug trafficking offences.12 By now, the ideological war between Socialist and Western nations had faded and with strong support from Caribbean nations the General Assembly asked the ILC to commence work on an ICC statute.13 The ILC completed this task in 1994 and submitted a new draft statute to the General Assembly.14
This development coincides with the break-down of state order and the massive atrocities committed in the conflicts in the former Yugoslavia and Rwanda in the early 1990s, which resulted in the creation of temporary international criminal tribunals.15 The creation and work
7 78 UNTS 277 [hereinafter Genocide Convention].
8 UN General Assembly, Resolution177 (II), UN Doc A/519 (1947).
9 UN, Yearbook of the International Law Commission, vol II, UN Doc A/CN.4/SER.A/1951/Add.1 at 134. 10 UN, Yearbook of the International Law Commission, vol II, UN Doc A/CN.4/SER.A/1954/Add.1 at 149. 11 UN General Assembly, Resolution 36/106, UN Doc A/36/51 (1981). On the drafting process in the ILC see
Rosemary Rayfuse, “The Draft Code of Crimes against the Peace and Security of Mankind: Eating Disorders at the International Law Commission” (1997) 8 Criminal Law Forum 43 at 45-49; and Bejamin B Ferencz, “An International Criminal Code and Court: Where they stand and where they’re going” (1992) 30
Columbian J Transnat’l Law 375 at 375-377, 382-384.
12 UN General Assembly, Letter dated 21 Aug 1989 from the Permanent Representative of Trinidad and
Tobago to the UN Secretary-General, UN Doc A/44/195 (1989) and UN General Assembly, UN Doc
A/44/49 (1989).
13 UN General Assembly, Legal Committee, UN Doc A/C.6/44/SR.38-41 (1989). See further Section ?? below. 14 UN General Assembly, Report of the ILC of its 46th Session, UN Doc A/49/10 (1994). See further John
Crawford, “The ILC Adopts a Statute for an International Criminal Court: (1995) 89 American J Int’l L 404.
15 UN Security Council, UN Docs S/RES/808 (22 Feb 1993), and S/RES/827 (25 May 1993) [ICTY Statute];
of the ICTY and ICTR lend significant support to the calls for a permanent international criminal court.16
After several years of controversial debate, the UN General Assembly decided to convene the Rome Conference on the Establishment of an International Criminal Court in 1998.17 The
Conference adopted the Rome Statute of the International Criminal Court on 17 July 1998; it entered into force on 1 July 2002. The ICC is now fully operative and is based in The Hague, Netherlands.
Article 5 ICC Statute now grants the ICC jurisdiction only over aggression, crimes against humanity, genocide, and war crimes.
The following parts of this presentation explore the feasibility of expanding the mandate of the International Criminal Court to enable the Court to prosecute some transnational organised crimes. This will be done in two ways: First, I will examine whether the existing jurisdiction of the ICC can be interpreted in a way that covers some transnational crimes. Second, I will discuss whether the ICC mandate should be extended by adding further offences to the Court’s jurisdiction.
2. Interpretation of existing crimes: transnational organised crime as crimes against humanity?
There is some debate whether some transnational crimes, in particular trafficking in persons, can amount to a crime against humanity within the meaning of art 7 ICC Statute.
2.1. Elements of Crimes against Humanity, art 7 ICC
The essence of a crime against humanity is an act (or omission)18 which constitutes or results in a very serious breach of human rights committed as part of a widespread or systematic practice, article 7(1) ICC Statute.
To establish criminal responsibility for a crime against humanity, it needs to be proven that one of the acts specified in art 7(1)(a)-(k) — such as, for example, murder, extermination, enslavement etc — were committed as part of
1. a widespread or systematic attack, art 7(1), (2)(a); 2. against any civilian population, art 7(1), (2)(a); 3. by a perpetrator;
4. pursuant to a Government policy, or tolerated by the State, art 7 (2)(a); 5. with knowledge of the attack, art 7(1).19
16 See further, Kriangsak Kittichaisaree, International Criminal Law (Oxford University Press, 2001) 22-27;
William A Schabbas, An Introduction to the International Criminal Court (Cambridge University Press, 2nd
ed 2004) 10-13.
17 UN General Assembly, Establishment of an International Criminal Court, UN Docs A/RES/160/52, A/52/37
(1997). See generally on the work of the Rome Conference, Roy S Lee, “The Rome Conference and Its Contributions to International Law”, in Roy S Lee (ed), The International Criminal Court, The Making of the
Rome Statute (Kluwer Law, 1999) 1 at 13-26.
18 Claire de Than & Edwin Shorts, International Criminal Law and Human Rights Law (Thomson, 2003) para
It is no longer required that the attack is connected with an armed conflict or that the perpetrator acted with a discriminatory motive.
1. widespread or systematic attack
The elements of art 7 have been unanimously interpreted as requiring a very high threshold. The crimes to be brought before the ICC must be of extreme gravity, of mass scale and constitute an attack on humanity. Sporadic, isolated, uncoordinated, and random incidents are regarded as insufficient to amount to a widespread or systematic attack.20
With a view to transnational organised crime, trafficking in persons in particular, this stringent requirement will exclude many, if not most cases from the jurisdiction of the International Criminal Court. Many trafficking organisations only operate on small and local scales and their organisation and activities can rarely be regarded as highly orchestrated. However, examples of highly sophisticated trafficking networks which systematically recruit their victims from specific areas, often involving the use of severe violence, rape, kidnappings, and sexual slavery, are plenty. These types of operations will undeniably exceed the high threshold of article 7 and there can be little doubt about the orchestration and coordination of these “attacks”.
2. victim: any civilian population
The attack must be directed not just against a random group of persons or isolated individuals. There is consensus that the victim of a crime against humanity must form a clearly identifiable group, usually — but not exclusively — of persons who share a religious, national, ethnic, or linguistic or other background.21
Again, this requirement eliminates most transnational organised crimes, including many instances of trafficking in persons which are driven by financial motives and do not target specific groups. There are, however, multiple instances of trafficking committed by State actors or criminal organisations which are directly targeting groups of victims of specific background, from specific geographical areas, in specific socioeconomic circumstances, or of specific gender.
3. perpetrator
A crime under art 7 ICC Statute can be committed by an individual, groups of persons, or an organisation, both in official and unofficial capacities. It is noteworthy that the attack does not have to come from the State or a State organ. With respect to trafficking in persons, it is possible to charge organisers and financiers of the operations, those who recruit and transport
19 Cf the features identified in Darryl Robinson, “Defining ‘Crimes against Humanity’ at the Rome
Conference” (1999) 93 American Journal of International Law 43 at 45.
20 Antonio Cassese, International Criminal Law (Oxford University Press, 2003) 65-66; Darryl Robinson,
“Defining ‘Crimes against Humanity’ at the Rome Conference” (1999) 93 American Journal of International Law 43 at 47-48; Claire de Than & Edwin Shorts, International Criminal Law and Human Rights Law
(Thomson, 2003) para 5-004, 5-005. See also ICC Assembly of State Parties, Elements of Crimes, ICC Doc ICC-ASP/1/3 (3-10 Sep 2002) 116, requiring “a course of conduct involving the multiple commission of acts”.
21 Herman von Hebel & Darryl Robinson, “Crimes within the Jurisdiction of the Court”, in Roy S Lee (ed), The
International Criminal Court, The Making of the Rome Statute (Kluwer Law, 1999) 79 at 95-97; Ryszard
Piotrowicz, “Preempting the Protocol: Protecting the Victims and Punishing the Perpetrators of People Trafficking” in Christine Kreuzer (ed), Frauenhandel – Menschenhandel – Organisierte Kriminalitaet
persons across borders, and those who harbour them, prostitute, buy or otherwise exploit trafficked persons. 22
4. Government policy or tolerated by a State
The question remains whether the criminal act must either be authorised by the State, or must be part of official or unofficial State policy, art 7(2)(a).
The case law and literature does not offer a conclusive answer.23 It would seem, in summary, that those crimes which are actively and severely prosecuted and punished by the State will not be regarded as crimes against humanity under the ICC Statute. But in the case of trafficking persons, there are examples where countries have been reluctant to take action against traffickers, where corrupt officials have cooperated with trafficking organisations, or where governments have encouraged, openly or subtly, the recruitment of foreign sex workers or the sale and kidnapping especially of children and young girls in rural and remote country areas. It would follow, that those instances of trafficking in persons, if committed repeatedly and systematically, can indeed be regarded as crimes against humanity.24
5. Fault element: knowledge of the attack
The mental elements for offences under article 7 require that the specific act was committed intentionally,25 and that the accused acted with some awareness that his/her acts are part of a widespread or systematic attack against the civilian population.26
Thus, with a view to trafficking in persons and, perhaps, other forms of transnational organised crime, it has become possible to charge those offenders who intentionally engage in, organise, aid, abet, facilitate or otherwise participate in specific acts such as enslavement and sexual slavery, forced prostitution, rape, or trafficking, being aware that their actions are part of a orchestrated operation.
2.2. Specific Acts
In addition to the elements of crimes against humanity, for a conviction under art 7 ICC Statute the prosecution must also establish proof of a specific act which formed part of the widespread or systematic attack against a civilian population. Article 7(1)(a)-(k) contains a list of eleven specific acts, ranging from murder to crimes such as rape, apartheid, torture and “other inhumane acts of similar character”. This list of acts contains a substantial number of offences which are closely associated with trafficking in persons, namely enslavement, rape,
22 Ryszard Piotrowicz, “Preempting the Protocol: Protecting the Victims and Punishing the Perpetrators of
People Trafficking” in Christine Kreuzer (ed), Frauenhandel – Menschenhandel – Organisierte
Kriminalitaet (Nomos, 2003) 1 at 24.
23 Cf Antonio Cassese, International Criminal Law (Oxford University Press, 2003) 83; Ryszard Piotrowicz,
“Preempting the Protocol: Protecting the Victims and Punishing the Perpetrators of People Trafficking” in Christine Kreuzer (ed), Frauenhandel – Menschenhandel – Organisierte Kriminalitaet (Nomos, 2003) 1 at 21.
24 Cf Ryszard Piotrowicz, “Preempting the Protocol: Protecting the Victims and Punishing the Perpetrators of
People Trafficking” in Christine Kreuzer (ed), Frauenhandel – Menschenhandel – Organisierte
Kriminalitaet (Nomos, 2003) 1 at 25.
25 Article 30(2)(a) ICC Statute.
26 Cf Antonio Cassese, International Criminal Law (Oxford University Press, 2003) 82.; Ryszard Piotrowicz,
“Preempting the Protocol: Protecting the Victims and Punishing the Perpetrators of People Trafficking” in Christine Kreuzer (ed), Frauenhandel – Menschenhandel – Organisierte Kriminalitaet (Nomos, 2003) 1 at 21.
sexual slavery, enforced prostitution, and other forms of sexual violence of comparable gravity.
2.3. Summary
There is a possibility to interpret crimes against humanity under art 7 ICC Statute in a way that may encompass serious cases of trafficking in persons. Trafficking in persons, especially women and children “can certainly fall within the jurisdiction of the ICC. […] It is clear, then, that trafficking may be a crime against humanity. However, it is equally clear that not all trafficking is necessarily a crime against humanity.”27 Only the most severe, perhaps most brutal and most orchestrated instances of trafficking could ever meet the high thresholds of art 7 and only if the acts committed have some association with State policy or practice which, however, may also be manifested by a deliberate inactivity of the State to act against traffickers.
The reality is, however, that under the current law and in the current political climate it is unlikely that trafficking in persons committed by criminal organisation will be brought to trial before the ICC. It is difficult to imagine that any Signatory will consider common patterns of trafficking grave enough to request intervention by the ICC prosecutor. Further, the requirements under article 7 are so high that many cases will not be prosecuted simply because of the difficulties to provide sufficient evidence for the material elements of crimes against humanity. However, as the experience of the ICTR and ICTY has shown, there are many instances of trafficking which have been brought before international criminal tribunals, thus leaving the hope that the international community will act again to bring cases of a similar scale to those that occurred in Rwanda and the Former Yugoslavia before the International Criminal Court.
3. Adding further crimes to the ICC Statute
Rather than interpreting the existing mandate if the International Criminal Court, cases of transnational organised crime could also be brought within the jurisdiction of the Court by adding additional crimes to the ICC Statute. In fact, it was the proposal for a court to prosecute drug trafficking that led to the establishment of the ICC.28
The question arises whether the inclusion of other crimes is indeed warranted, desirable and achievable and whether it is feasible from political and economic viewpoints. In the remaining parts of my presentation, I will explore these issues in relation to those organised crimes considered during drafting process: drug trafficking, trafficking in small arms, money laundering, and offence against the environment.29
3.1. Drug trafficking
Offences involving narcotic drugs and psychotropic substances were among the first crimes to be recognised under international law, dating back to the First International Opium
27 Ryszard Piotrowicz, “Preempting the Protocol: Protecting the Victims and Punishing the Perpetrators of
People Trafficking” in Christine Kreuzer (ed), Frauenhandel – Menschenhandel – Organisierte
Kriminalitaet (Nomos, 2003) 1 at 25.
28 See Section ?? above. 29 See Section?? Below.
Convention of 1912.30 Since then, a total of thirteen international agreements on drug control have been concluded along with ten international instruments on drug related issues. Today, the international law on trafficking in narcotic drugs and psychotropic substances contains a wealth of widely accepted mechanisms to prohibit the illicit manufacturing, transfer, sale, use, possession etc of these substances along with money laundering and corruption, as well as mutual legal assistance and judicial cooperation measures, extradition clauses, provisions on law enforcement cooperation, technical assistance and training, and prevention mechanisms. 1989 proposal
It was, as mentioned earlier, the call for an international court with jurisdiction over narcotrafficking that ultimately resulted in the creation of the ICC. In 1989, Trinidad and Tobago -- frustrated with the inability to investigate international drug trafficking rings, the lack of capacity of smaller states to prosecute offenders, and the obstacles of cross-border law enforcement and judicial cooperation -- formally proposed to the United Nations to establish an international court with jurisdiction over such offences. However, after many years of controversial debate, in 1998, the Rome Conference ultimately decided that drug trafficking was not to be included in the final text of the ICC Statute.
The opposition against the ICC gaining jurisdiction over drug trafficking and other ‘treaty crimes’ argued that, first, these crimes do not have the same international status as the other offences under international criminal law; second, that the nature and scale of such crimes is less serious that, for instance, genocide and war crimes; third, that the worldwide level of drug trafficking and other transnational organised crimes would exceed the capacity and resources of any international court; and fourth, that the sovereignty issues of some nations may bar prosecution of such offence by an international authority.
International status
Much of the debate since the proposal by Trinidad and Tobago in 1989 surrounded the international legal status, recognition, and lack of historical precedent of inclusion of treaty crimes such as drug trafficking into the mandate of international criminal tribunals.
The argument was made that those crimes that are now included in the ICC Statute: crimes against humanity, war crimes, genocide, and aggression — and only those — are part of ‘natural justice’, have customary status, are motivated by principle rather than policy and have universal application, thus binding States even if they have not formally signed relevant conventions.
In contrast, offences such as drug trafficking were regarded as treaty crimes, defined by convention rather than custom. It was argued that such offences do not have universal application in the sense that they are part of ‘conventional justice’, thus policy-motivated and designed to reinforce national jurisdiction and their application is confined to the territory of the Signatories.
Further, the United States, supported by other European and western nations, expressed the view that
This court should not concern itself with incidental or common crimes, nor should it be in the business of deciding what even is a crime. This is not the place for progressive development of the law into uncertain areas, or for the elaboration of new and unprecedented criminal law. The
court must concern itself with those atrocities which are universally recognised as wrongful and condemned.31
The position to differentiate offences under international law in that way finds significant support in the literature, though questions remain whether the distinction is sustainable. Obviously, the former offences were regarded more important than the latter. If, however, genocide, war crimes, and crimes against humanity are recognised — in policy and in practice — by more countries around the world than offences such as drug trafficking, is indeed doubtful.32 There may be arguments to support a position that narcotrafficking amount to customary international criminal law. The offence of trafficking in narcotic drugs and psychotropic substances has a long history in international law, has extra-territorial application, provides for the obligation to extradite or prosecute, and has been for some time a truly transnational offence, as its commission involves multiple jurisdictions, perhaps even more than genocide or crimes against humanity which have less conventional history and often do not even cross international borders.33
Seriousness of the drug problem
During the discussion in the International Law Commission and at the Rome Conference there was a perception among some participants that drug trafficking is less serious than the crimes of aggression, genocide, crimes against humanity, and war crimes, and that an international court should not have jurisdiction over “trivial” offences which may reduce the standing and reputation of the court.34
There is little substance to these views and the repeated attempts in particular by Caribbean nations to demonstrate the seriousness of international drug trafficking, and its impact on smaller states, are most laudable. There can be no doubt that the global trafficking in narcotic drugs has for the past forty years been the most pressing of all criminal justice issues. It has also had severe political and economic impacts on production, transit, and consumption countries, which is often closely related to widespread corruption. The size of and the violence associated with the illicit drug industry in countries such as Colombia or Afghanistan are destabilising the security and institutions of these and other countries. As illustrated in the
31 Cited in Nick Boister, “The Exclusion of Treaty Crimes From the Jurisdiction of the Proposed International
Criminal Court: Law, Pragmatism, Politics” (1998) 3 Journal of Armed Conflict Law 27 at 28-29 referring to Agenda Item 150, the Establishment of an International Criminal court, in the Sixth Committee (23 Oct 1997) [source untraceable].
32 Cf Patrick Robinson, “The Missing Crimes” in Antonio Cassese et al (eds), The Rome Statute of the
International Criminal Court: A Commentary, vol 1 (Oxford University Press, 2000) 497 at 502-503, 507.
33 Cf Nick Boister, “The Exclusion of Treaty Crimes From the Jurisdiction of the Proposed International
Criminal Court: Law, Pragmatism, Politics” (1998) 3 Journal of Armed Conflict Law 27 at 30; Patrick Robinson, “The Missing Crimes” in Antonio Cassese et al (eds), The Rome Statute of the International
Criminal Court: A Commentary, vol 1 (Oxford University Press, 2000) 497 at 507-510.
34 Cf Molly McConville, “A Global War on Drugs: Why the United States Should Support the Prosecution of
Drug Trafficking in the International Criminal Court” (2000) 37 American Criminal Law Review 75 at 91-92, 98-99; Barbara M Yarnold, “Doctrinal Basis for the International Criminalisation Process: (1994) 8 Temple
ICLR 85 at 103; Rosemary Rayfuse, “The Draft Code of Crimes against the Peace and Security of Mankind:
Eating Disorders at the International Law Commission” (1997) 8 Criminal Law Forum 43 at 48. See also the comments by Patrick Robinson, “The Missing Crimes” in Antonio Cassese et al (eds), The Rome Statute of
the International Criminal Court: A Commentary, vol 1 (Oxford University Press, 2000) 497 at 502: “The
length to which the ILC went to ensure that drug crimes had the required level of gravity for inclusion in the Statute” is remarkable.
US invasion of Panama in 1989, the drug problem is even capable of triggering countries to militarily intervene in foreign nations in pursuit of their anti drug policy.35
The scale of the problem is also manifested in the enormous amount of money and resources that have been invested in fighting the phenomenon at least since US President Nixon declared the “war on drugs”. All countries, industrialised and developing, spend more effort and money on preventing and suppressing drug trafficking than perhaps on all other crimes combined, including those under customary international law. Only the resources invested in the “war on terror” may have recently outstripped those spent on fighting the drug problem.36 Resources of the court
Perhaps more convincing is the argument that jurisdiction over drug trafficking would overwhelm the resources of an international criminal court, or, as Boister put it “the ICC would be cheaper to start up and to run if it only had jurisdiction over core crimes”37. Right from the first proposals for such a court arose concern over the resources needed to prosecute offences of the magnitude of the global illicit drug trade.
Ultimately, drug trafficking was not included in the ICC Statute, thus leaving the offence to the prosecution by national agencies. And most authors do not seem to challenge this resources argument. But, as the case of Caribbean nations in particular demonstrates, smaller and less developed nations, too, have very limited resources to fight the “war on drugs” and, even if the political will exists, have little ability to obtain cooperation from the larger states.38 Thus the resources argument is, at best, circular, as even an under-resourced ICC would have at least a much better mandate to prosecute large-scale transnational trafficking rings than any national agency ever will.
Confidentiality and sovereignty
Lastly, some countries based their opposition to the inclusion of drug trafficking on internal considerations of national sovereignty and confidentiality. The United States in particular, although at times an advocate of an international drug court, expressed its unwillingness to share information on international drug traffickers with an “ambivalent and unknown” international criminal court for fear that its own investigations be jeopardised and sources of intelligence be put in danger.39
However, it is exactly this obstacle of suspicion and lack of trust that the jurisdiction of an international body is trying to overcome. As long as countries adopt the view that they cannot share their intelligence, evidence and other information, the “war on drugs” is doomed to fail, 35 Cf Faiza Patel, “Crime without Frontiers: A Proposal for an International Narcotics Court” (1989-90) 22
NYU Journal Int’l Law & Politics 709 at 709, 712-713.
36 Cf the views expressed in UN, Preparatory Committee on the Establishment of an International Criminal
Court, Summary of the Proceedings of the Preparatory Committee during the period 25 March to 12 April 1996, UN Doc A/AC.249/1 (1996) paras 71-72; Lyal L Sunga, The Emerging System of International
Criminal Law, Development in Codification and Implementation (Kluwer Law, 1997) 21, 206..
37 Nick Boister, “The Exclusion of Treaty Crimes From the Jurisdiction of the Proposed International Criminal
Court: Law, Pragmatism, Politics” (1998) 3 Journal of Armed Conflict Law 27 at 37.
38 Cf Patrick Robinson, “The Missing Crimes” in Antonio Cassese et al (eds), The Rome Statute of the
International Criminal Court: A Commentary, vol 1 (Oxford University Press, 2000) 497 at 501.
39 US Mission to the UN, Statement by The Hon Edwin D Williamson, US Special Advisor to the UN General
Assembly in the Sixth Committee, USUN Press Release No 113 of 1992. Cf Nick Boister, “The Exclusion of
Treaty Crimes From the Jurisdiction of the Proposed International Criminal Court: Law, Pragmatism, Politics” (1998) 3 Journal of Armed Conflict Law 27 at 36, 38; Benjamin B Ferencz, “An International Criminal Code and Court: Where they stand and where they’re going” (1992) 30 Columbian J Transnat’l Law 375 at 399.
which, in return, only strengthens the argument to include crimes such as drug trafficking into the mandate of the ICC.40
3.2. Other Crimes
Several other crimes were proposed for inclusion into the ICC Statute during the consultations of the International Law Commission and also at the Rome Conference in 1998.
During the drafting, International Law Commission briefly considered whether “wilful and severe damage to the environment” can amount to a crime of the same gravity as other offences covered by the draft Code.41 The general consensus appeared to be that environmental offences of a particular heinous and orchestrated nature may in fact be regarded as cases of aggression, crimes against humanity, war crimes, or perhaps terrorism, but that the separate inclusion of such crime in the Code would not be warranted.
Trafficking in small arms was one of the crimes considered at the Rome Conference. It, too, similar to drug trafficking, has wide-reaching impacts and dire consequences especially on smaller countries. This may explain why the Madagascan delegation orally proposed the inclusion of this offence. Madagascar, too, considered the dumping of nuclear waste in foreign countries as an international crime over which the ICC ought to have jurisdiction. Further, money laundering was considered by some as a crime worth including in the ICC Statute; this view was expressed orally by Nigeria at the Rome Conference. None of these offences were seriously discussed for inclusion into the ICC Statute by the Rome Conference, and also were not mentioned for possible consideration by a Review Conference.42
Perhaps surprisingly, piracy, the oldest of all international criminal offences was at no time considered for inclusion into the ICC Statute. Unlike any of the other crimes within and outside the ICC’s mandate, piracy is one the most universally recognised international offences and there is general consensus that even outside the relevant Law of the Sea conventions piracy is an offence of customary international criminal law.43
4. Conclusion
The inadequacies of the current system to investigate, prosecute, and convict transnational organised crime are obvious and long-standing. Every year, too many people exploit the discrepancies between different criminal justice systems and the loopholes of international 40 See also the comment made by Nick Boister, “The Exclusion of Treaty Crimes From the Jurisdiction of the
Proposed International Criminal Court: Law, Pragmatism, Politics” (1998) 3 Journal of Armed Conflict Law
27 at 34: “Those opposed to the inclusion of treaty crimes with the jurisdiction the ICC cite these inadequacies as reasons for exclusion; those in favour of ICC jurisdiction over such crimes cites these inadequacies as reasons for exclusion”.
41 UN General Assembly, Draft Code of Crimes against the Peace and Security of Mankind, UN Doc
A/CN.4/L.459/Add.1 (5July 1991).
42 Kriangsak Kittichaisaree, International Criminal Law (Oxford University Press, 2001) 229.
43 This observation is shared by Silverman, An Appeal to the United Nations: Terrorism must come within the
jurisdiction of an international criminal court (1997) cited in Nick Boister, “The Exclusion of Treaty Crimes
From the Jurisdiction of the Proposed International Criminal Court: Law, Pragmatism, Politics” (1998) 3
Journal of Armed Conflict Law 27 at 31; and by Claire de Than & Edwin Shorts, International Criminal Law
and Human Rights (Thomson, 2003) para 9-001: “By committing the crime of piracy the offenders have put
themselves outside the pale and protection of all states. […] As a result, it is now universally acknowledged that all States possess the jurisdiction and responsibility to arrest and prosecute those involved in piratical acts.”
criminal law to their best advantage thus resulting in too many offenders escaping prosecution, too many victims to be abused or die at the hand of transnational criminal organisations, and too great profits to be made by global crime networks. ‘Crime pays’ as long as nations fail to cooperate more closely in law enforcement and judicial proceedings. Nations will continue to lose their ‘war on crime’ unless they resort to the weapons of international prosecution.
Transnational organised crime “is a problem in need of a solution; the newly created International Criminal Court is a solution in need of problems.” The creation of the International Criminal Court has created an opportunity to overcome many of the deficiencies of the past. It offers a new forum to prosecute cases that would otherwise not be prosecuted. It offers a neutral forum to try offenders that are not extradited because too many countries are seeking jurisdiction, or because a country remains too fearful its nationals or other alleged offenders may face biased trials in a foreign jurisdiction. It offers a more reliable tool to prosecute seemingly unreachable and uncontrollable mafia bosses and drug cartels as it is less vulnerable to intimidation and corruption by criminal gangs.
This presentation has demonstrated that there are still too great political reservations towards broadening the ICC’s mandate as countries continue to place sovereignty ahead of criminal justice.
A further obstacle lies in the fact that the system of international criminal law, its enforcement and jurisdiction, is not yet a comprehensive and consistent body of principles of criminal responsibility. It is only slowly emerging and is still being developed into a more comprehensive body of law.44
With growing levels of transnational crime on the one hand, and some success stories of arrests of key leaders of criminal organisations on the other, some countries start to acknowledge that international criminal law is a valuable complement to domestic enforcement efforts and thus worth supporting. As the example of the Caribbean nations has shown, smaller nations depend largely on the cooperation of the larger powers if they wish to investigate traces of transnational organised crime and prosecute offenders. Thus, an international criminal court would be of enormous practical assistance to these states. It, too, would have a symbolic value; it “would illustrate that no one is above the law. [It] would serve as stabilising reference points for floundering national criminal justice systems.”45
44 Cf John Crawford, “The ILC Adopts a Statute for an International Criminal Court: (1995) 89 American J
Int’l L 404 at 407; Barbara M Yarnold, “Doctrinal Basis for the International Criminalization Process”
(1994) 8 Temple Int’l & Comp L J 85 at 85-86.
45 Nick Boister, “The Exclusion of Treaty Crimes From the Jurisdiction of the Proposed International Criminal
Court: Law, Pragmatism, Politics” (1998) 3 Journal of Armed Conflict Law 27 at 37, 39; cf Lyal L Sunga,
The Emerging System of International Criminal Law, Development in Codification and Implementation
