International & Transnational Criminal Law

Cybercrime Convention: The Missing Part of the C-30 Debate

 

As Canadian readers of this blog will know, our country has recently been enmeshed in a hot debate over Bill C-30, currently in Parliamentary committee. The Bill is often referred to as the "Lawful Access" bill (stemming from an earlier title) but is now officially entitled the "Protecting Children From Internet Predators Act." It provides a number of new investigative tools for Canadian police for both the monitoring and gathering of electronic data, and imposes data preservation and monitoring requirements on ISPs and other service providers.

I don't intend to review the overall debate here (though if you're interested, a good place to start is Michael Geist's blog or David Fraser's privacy law blog), but rather to focus on something about the Bill that has been entirely missing from the debate: it is designed, at least in part, to allow Canada to ratify the Council of Europe Cybercrime Convention, to which we have been a signatory for many years but have yet to ratify. The reason we have not ratified it is because the Convention requires Canada to have in place an array of investigative tools that we currently do not have, such as an ability of law enforcement authorities to do real-time internet monitoring.

The idea behind this aspect of the Convention is twofold. First, it seeks to create an international network of states which can effectively (or at least more effectively than at present) investigate and combat transnational cybercrime. Second, for there to be an *effective* international network, states must be able to assist each other in gathering and transmitting evidence -- up to and including granting expedited requests for real-time internet traffic monitoring. The need for cooperation is pressing with regard to all kinds of transnational crime but particularly so with cybercrime, where the speed and fluidity of data transmission requires some very ramped-up tools.

So, to cooperate properly with its treaty partners, towards the very salutary public policy goal of combating cybercrime, Canada does actually need quite a lot of the tools contained in Bill C-30. I am mystified as to why this isn't part of the debate. The federal government has been quite ham-handed in how it has tried to sell the legislation to the public, using an American-style emotive title that misleads people about what is actually in the Bill and what it is for. It could probably get a lot more traction by saying to Canadians, "hey, the police need tools to combat identity theft, and cyber-attacks, and yes, child predators of various kinds on the internet. And we have agreed with a group of very civilized countries that we're all going to do this, and share the evidence with each other so that we can catch these dangerous criminals." As it is, the public has not been fooled by the child porn aspect and is swayed by emotive counter-arguments, such as "the government wants to invade your privacy" and "Big Brother wants to watch you on the internet."

Why does the government never mention the Cybercrime Convention? Did it forget? Are they undertaking some kind of Scalia-inspired rejection of international law as a reason for doing anything? It is passing odd.

The debate among most legal commentators has, to its credit, not been focused on the investigative tools themselves, but rather the lack of judicial oversight or other civilian control which the government wishes to provide to law enforcement under the Bill. There's a good piece about it in the 16 March issue of the Lawyers' Weekly, where Jameel Jaffer (a Canadian who has been lead counsel with the American Civil Liberties Union (ACLU)) commented:

"I think police officers will always feel that the transparency will interfere with their investigations... Law enforcement officers, just like everybody else, don't like to be second-guessed. That's sort of a natural instinct. But it's not one that we can indulge in a healthy democracy."

I think a useful thing to add to the debate is this: even though part of what's driving the government has been the need to ratify the Convention  (in the background, anyway), the Convention itself does not require the overbroad and needlessly invasive  use of these otherwise necessary tools that Bill-30 would allow. The Convention, in fact, explicitly anticipates that the domestic laws of each state will vary as to whether and how much judicial or other oversight is required, and imposes absolutely no obligations -- each country can sort that out for itself.

And even among those states which have ratified the Convention, the sorting-out is going on: witness the German High Court, just recently, striking down as unconstitutional provisions of that state's Telecommunications Act which: a) were clearly designed to implement Cybercrime Convention obligations; and b) gave law enforcement overly broad seizure and demand powers without requiring them to obtain permission. Sound familiar?

Last year I blogged that Canada hadn't ratified the Convention -- again -- because the legislation died on the order table. Now we're not able to ratify it because the implementing legislation is framed in such an unnecessarily invasive way that Canadians are rejecting it. It's time for the federal government to get on with this, because the cybercriminals are laughing all the way to the bank.

ICC Finds Lubanga Guilty

 

Today, Trial Chamber I of the International Criminal Court released its decision in the Court's first trial, that of Thomas Lubanga Dyilo. Lubanga was charged with the war crimes of conscripting and enlisting children under the age of 15, and using them to participate in hostilities in the Democratic Republic of the Congo in 2003. He was convicted as a co-perpetrator.

Naturally, the Chamber's decision is subject to appeal and no doubt there will be one. For now, however, this is a milestone and a victory for the court. This trial took an enormous amount of time to complete, and nearly went off the rails a number of times due to, inter alia, recanting witnesses and the court's castigation of the Prosecution for various failures to disclose evidence to the defence. However, the other trials currently under way appear to be moving at a faster clip. More importantly, this is a shot in the arm for the Court's credibility, which is still the subject of controversy.

I'll resist the temptation to react (for now), in favour of providing links to the decision, a summary of the decision, and the Coalition for the ICC's coverage. Also, here is an interesting critical comment by Thierry Cruvellier. This decision, like everything about the ICC, will be minutely dissected by publicists all over the world in the months to come.

A (Positive) Book Review

 

This blog hasn't been busy of late -- the school year is intense around now, and my Jessup international law moot team is about to blaze its way to glory in the Canadian round.

I'll be blogging on a number of interesting developments over the next while, but in the interim I'm pleased to post a review of my book by Mr. Marcus Davies, Counsel to the Criminal, Security and Diplomatic Law Division of DFAIT. The review was published in the new issue of the Canadian Yearbook of International Law (Vol. 48, 2010). I'm gratified that Mr. Davies feels the book is worthwhile. I should say, again, how grateful I have been for the support of my publisher, Irwin Law, who took a chance on an unusual book.

---------------------------------------------------------------

International and Transnational Criminal Law. By Robert J. Currie. Toronto: Irwin Law, 2010. 647 pages.

In a world where advances in technology and transportation have shattered the notion that crime is local, Robert J. Currie’s book, International and Transnational Criminal Law, eloquently explores the complex and rapidly evolving fields of law known as “international criminal law” (ICL) and “transnational criminal law” (TCL). Unlike some texts in international law, which rely on excerpts from international instruments to convey their message, this book studiously synthesizes complex subject matter into readily digestible points. In so doing, the author presents the salient features of these areas of law in a manner that allows the reader to appreciate the interplay between the emerging streams in a style that is eminently accessible to teachers, students, practitioners, judges, and policy makers alike.

Currie’s overview of the history, developments, linkages, and nuances that define these emerging bodies of law conveys the fact that international and domestic law must constantly evolve to effectively respond to globalized crime. Accordingly, the book provides the reader with a set of tools that he or she can draw upon to understand the interplay between domestic and international law, as modern criminals look to exploit weaknesses in criminal law regimes between states, which, in turn, work to tighten the net around criminal activity with improved laws, enforcement, and co-operation.

An underlying theme in Currie’s book is that in order for one to appreciate ICL and TCL in a meaningful way, one must understand the historical, philosophical, and legal foundations of these bodies of law. Currie sets the stage for his examination of ICL and TCL by highlighting the evolution of international law from a largely consensual system of rules governing state interactions, to a body of law that can hold individuals directly liable for international crimes, or indirectly liable through domestic law regimes for transnational crimes of international and domestic concern. As part of the Essentials of Canadian Law series, this book explores these areas of law with a focus on Canada. By exploring the nexus between these bodies of international law and Canadian domestic law, Currie describes how Canada’s criminal law regime has adapted to respond to global crime. In so doing, the author leads his reader through this process seamlessly, each chapter building on the previous.

The first half of the book focuses on the gradual evolution of the state-centric concept of sovereignty. Attention is paid to the development of treaty and customary international law in holding individuals liable for horrendous crimes committed not only against the criminal laws of a single state but also against international law and, thus, the entire world community. Chapter 1 begins with a definition of ICL and TCL and examines how their development as bodies of law is impacted by different enforcement regimes, international co-operation, human rights, sources of law, and, ultimately, by the emergence of individual liability in international law. Chapter 2 considers the jurisdiction of states to prosecute ICL and TCL. Chapters 3 and 4 describe the core crimes of ICL — genocide, crimes against humanity, war crimes, and aggression — and their direct enforcement through international and internationalized criminal courts set up to deal with these crimes, such as the Nuremberg and Tokyo tribunals, the UN ad hoc tribunals, and the International Criminal Court.

In keeping with the book’s Canadian focus, Chapter 5 focuses on the prosecution of international crimes by Canadian courts from 1945 to 1999 and following the adoption of the Crimes against Humanity and War Crimes Act in 2000. Notably, Currie’s examination of the act is extremely detailed. He highlights the ways in which the act was designed to overcome the inadequacies of the Canadian legal regime for prosecuting war crimes as well as to implement Canada’s obligations under the Rome Statute of the International Criminal Court. Against this background, the author discusses the case of Désiré Munyaneza, a Rwandan national who was arrested in Canada in 2005 and found guilty in 2009 of two counts each of genocide and crimes against humanity, as well as three counts of war crimes linked to the Rwandan genocide of 1994. Currie deftly analyzes how the Canadian decision to convict a Rwandan national under the principle of universal jurisdiction, including the court’s reliance on international treaties and the jurisprudence of the international criminal tribunals for Yugoslavia and Rwanda, is evidence of the fact that international criminal law and domestic criminal law complement one another.

The second half of the book moves from the study of direct criminal liability under international law to an examination of crimes with international characteristics that states prosecute under their domestic criminal law systems. Chapter 6 is devoted to discussing the so-called “other international crimes” of torture, piracy, and slavery and apartheid, noting that whereas they cannot be prosecuted directly under international law, they are sufficiently egregious to merit domestic prosecution of the perpetrators wherever they may go, so as to ensure that they can find no safe havens. In his assessment of these crimes, Currie describes their history and requisite elements, as well as the measures that Canada has put in place to criminalize these offences. The chapter ends with an invitation to the reader to consider whether terrorism could be considered an international crime or a transnational crime of international concern — the author adopts the latter view.

In his treatment of transnational crimes of international concern and transnational crimes of domestic concern, Currie reviews the major international law regimes dealing with drug trafficking, terrorism, transnational organized crime, corruption, and cybercrime. Owing to the vast scope of the TCL, however, the author’s evaluation of this area is, understandably, quite survey-like, highlighting the applicable international law and the implementing legislation in Canada. Chapter 7, for example, focuses on transnational crimes of international concern by examining the “suppression conventions” for a wide number of crimes, including transnational organized crime, drug trafficking, terrorism, child sex-tourism, money laundering, and cybercrime. Whereas Currie notes that these conventions commonly require states’ parties to criminalize certain acts, exert jurisdiction in an expansive manner, and ensure that an offender is prosecuted directly or extradited for prosecution, the vastness of this area of the law limits his analysis to concise descriptions of the applicable international law and Canada’s implementing legislation. In this sense, the book is an excellent introduction to the law and a wonderful starting point for further investigation by the reader.

Chapters 8-10 supplement Currie’s survey of transnational criminal law by describing in detail the practical measures undertaken in Canada in order to implement its obligations to prevent and combat transnational crime. Chapter 8 describes in detail the approach that Canadian law and jurisprudence have taken to prevent transnational crimes of domestic concern, including Canadian courts’ application of the Libman test to determine their jurisdiction to prosecute domestic crimes involving the jurisdiction of more than one state. Chapters 9 and 10 provide a detailed examination of Canada’s extradition and mutual legal assistance regime, followed by an analysis of how Canada’s human rights obligations affect co-operation with other states for extraditions, deportations, and mutual legal assistance. For the latter, Currie gives a detailed examination, questioning whether the Canadian Charter of Rights and Freedoms can apply extraterritorially, and he includes a discussion of the fall-out resulting from the Supreme Court of Canada’s approach to extraterritorial jurisdiction in R v Hape.

Finally, Chapter 11 brings this impressive book to a close with an examination of immunity from prosecution before international tribunals, domestic courts, and within Canadian law. Currie’s work is an invaluable resource that will be welcomed by those with an interest in international and transnational criminal law. In addition to the comprehensive research and practical examples that inform this book, Currie’s ability to translate a very complex area of law into easily understood concepts will ensure that this book remains authoritative and relevant for years to come.

Marcus Davies
Legal Officer, Criminal, Security and Diplomatic Law Division, Foreign Affairs and International Trade Canada (The views expressed in this review are personal and not the official views of Foreign Affairs and International Trade Canada.)

[footnotes omitted]

 

(c) 2012 UBC Press