International & Transnational Criminal Law

New Book: An Introduction to Transnational Criminal Law

I am delighted to (somewhat belatedly) announce the publication of a major new book by my friend and TCL colleague, Dr. Neil Boister of the Law Faculty at the University of Canterbury, NZ. The book is entitled An Introduction to Transnational Criminal Law and it is a succinct but comprehensive overview of that body of law that scholars and practitioners are increasingly calling "transnational criminal law."

Anyone who has read my book (esp. chapters 1 and 7) will know that Neil's work has been a huge influence on my own as regards this particular sub-field of international law. His first major shot across the bow was nearly a decade ago, with his important article "Transnational Criminal Law?" (2003) 14 EJIL 953, which thoughtfully presented the case that the lawyers had to catch up with the criminologists in recognizing that transnational crime and the body of law dealing with it did not properly belong under the category of "international criminal law." With this book he is poised to continue bringing order and compelling thinking to bear on the importance, and even necessity, of studying and practicing TCL as a distinct discipline. My hat is off to him.


Below is the publisher's blurb and a list of chapter titles, to whet your appetite. I highly recommend you purchase the book.

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The suppression of cross-border criminal activity has become a major global concern. An Introduction to Transnational Criminal Law examines how states, acting together, are responding to these forms of criminality through a combination of international treaty obligations and national criminal laws. Multilateral 'suppression conventions' oblige states parties to criminalise a broad range of activities including drug trafficking, terrorism, transnational organised crime, corruption, and money laundering, and to provide for different types of international procedural cooperation like extradition and mutual legal assistance in regard to these offences. Usually regarded as a sub-set of international criminal justice, this system of law is beginning to receive greater attention as a subject in its own right as the scale of the criminal threat and the complexity of synergyzing the criminal laws of different states is more fully understood.

The book is divided into three parts. Part A asks and attempts to answer what is transnational crime and what is transnational criminal law? Part B explores a selection of substantive transnational crimes from piracy through to cybercrime. Part C examines the main procedural mechanisms involved in establishing jurisdiction and then the exercise of jurisdiction through the effective investigation and prosecution of transnational crimes. Finally, Part D looks at the implementation of transnational criminal law and Part E at the prospects for transnational criminal justice.

This book provides the first accessible and comprehensive introduction to this important area of law. It should be invaluable both to students and to professionals involved in the fight against transnational crime.

 

TABLE OF CONTENTS

Part A: Introduction
1: What is Transnational Crime?
2: What is Transnational Criminal Law?
Part B: Crimes
3: Piracy and Modern Maritime Offences
4: Slavery, Human Trafficking, and Migrant Smuggling
5: Drug Trafficking
6: Terrorism
7: Transnational Organised Crime
8: Corruption
9: Money Laundering
10: Emerging Transnational Crimes
11: General Part of Transnational Crime
Part C: Enforcement
12: Jurisdiction
13: International Law Enforcement Cooperation
14: International Law Enforcement Cooperation at Sea
15: The Anti-Money Laundering Regime
16: Legal Assistance
17: Legal Assistance in Asset Recovery
18: Extradition of Transnational Criminals
Part D: Conclusion
19: Trends in Transnational Criminal Procedure
20: Institutions
21: Implementation and Compliance
22: Towards Transnational Criminal Justice

Terrorism and the Khadr Cases

 

Just a slight(ly shameless) self-plug: the Canadian Institute for the Administration of Justice has just published a collection of conference papers entitled Terrorism, Law and Democracy: 10 years after 9/11.  The papers are from a conference of the same name which was held in October 2011.

Among the papers is one of mine, "A Tale of Two Brothers: The Impact of the Khadr Cases on Canadian Anti-Terrorism Law." The text of the introduction to the paper is reprinted below, and you can find a pre-publication copy here (though, of course, I encourage you to buy the book). Also some great pieces by Kent Roach, Lorne Waldman, Audrey Macklin and Graham Hudson, among others.

 

A Tale of Two Brothers: The Impact of the Khadr Cases on Canadian Anti-Terrorism Law

  - by -

  Robert J. Currie*

 

 

I.          INTRODUCTION

After something of a slow start, Canada’s post-9/11 terrorism laws have seen a fair amount of traffic over the last several years, and many of these prosecutions were high-profile in both the public and the legal senses. The case of the “Toronto 18” was well-chewed over by the press, coverage oscillating between grim amusement at the apparent incompetence of some of the accuseds and the sobering danger presented by others.[1] The Supreme Court of Canada recently granted leave to appeal in the cases of Momin Khawaja,[2] who was convicted for various terrorist activities carried out within and outside Canada, and of Suresh Sriskandarajah[3] and Piratheepan Nadarajah,[4] both of whom are facing extradition to the U.S. for allegedly providing support to the Liberation Tigers of the Tamil Eelam (“LTTE”). In all three of these cases, which will be heard together, the constitutionality of the definitional aspects of the Criminal Code’s terrorism offences will be dealt with by the top court. There is no doubt that anti-terrorism prosecutions are well on the national radar.

Arguably, however, the highest-profile Canadian terrorism cases have been two that did not involve prosecutions in Canada—those of brothers Abdullah and Omar Khadr. Both are Canadian nationals who have faced or are facing prosecution before U.S. courts for alleged terrorism-related activities, but regarding whom there have been Canadian legal proceedings. Omar Khadr’s case has gone to the Supreme Court of Canada on two occasions,[5] while Abdullah Khadr’s extradition case[6] was stopped only by the Court’s dismissal of the Crown’s leave application.[7] There has also been a great deal of public notoriety for both of the cases, and indeed for the entire Khadr family who were famously dubbed “Canada’s first family of terrorism” by Ontario Conservative MPP Bob Runciman.[8]

These proceedings tell us little, if anything, about substantive Canadian anti-terrorism law; indeed, at the time of writing there is no public indication that either of the Khadr brothers will face any charges in Canada. However, they have played a major part in generating a complex and interesting jurisprudence on various aspects of what might loosely be termed “cognate” areas: the administrative and procedural aspects of Canadian anti-terrorism law. The Omar Khadr case has been a major battleground for issues such as: the extraterritorial application of the Charter; obligations owed by the government to a citizen facing foreign prosecution; the implications of the Canadian government’s complicity in foreign abuses; and the nature and scope of the courts’ ability to judicially review Ministerial exercises of the federal foreign affairs authority. The Abdullah Khadr case, an extradition proceeding, traversed such issues as: the distinction between intelligence- and evidence-gathering;[9] the government’s duty to exercise diplomatic protection of its nationals abroad; and the implications of mistreatment by foreign states on Canada’s international criminal cooperation obligations. In each case, there is a distinct intermingling of domestic and international law issues, which both courts and commentators have found difficult to disentangle.

While there is a great deal to be said about the Khadr cases, this paper will argue that they illustrate two legal and policy imperatives that must inform the future development of Canadian anti-terrorism law. The first is familiar: the end must continue to be worth what it costs. The terrorists who seek to harm us must be made accountable for the harm, and the governments who seek to protect us (including foreign governments) must remain accountable for the manner in which they pursue and prosecute. To be effective in the overall, democratic sense, an anti-terrorism regime must be both vigorous and fair; and while the balance between these two priorities is always a moving target, it is one we must vigilantly continue to strike.[10]

The second, and related, imperative is the recognition that Canadian anti-terrorism law does not exist in a domestically-based vacuum but engages significant and sometimes complex questions of international law and international relations. Canadian law in this area is underdeveloped in various important ways, due both to the novelty of the issues and the rocky interface between domestic law, international law and government policy that they involve. While a cogent picture is beginning to emerge, this state of continued underdevelopment threatens to undermine Canada’s commitment to fundamental human rights and due process, a threat aggravated by state attempts to circumscribe the ability of the courts to act as arbiters and protectors of Charter values. All players in the legal system—governments, Crown counsel, defence counsel and courts—must come to terms with these issues so that the system remains focused, effective and accountable. Specifically, this will require greater facility with international law generally and a more robust approach to its use in the protection of the fairness of Canadian legal process.

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* Associate Professor, Schulich School of Law, Dalhousie University, Halifax. E-mail: [email protected]

[1] E.g. I. Teotonio, “Toronto 18 attack was to mimic 9/11,” Toronto Star online: < http://www.thestar.com/News/GTA/article/655068  >

[2] R. v. Khawaja, 2010 ONCA 862, leave granted [2011] SCCA No. 80.

[3] U.S.A. v. Sriskandarajah, 2010 ONCA 857, leave granted [2011] SCCA No. 63.

[4] U.S.A. v. Nadarajah, 2010 ONCA 859, leave granted [2011] SCCA No. 64.

[5] Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 SCR 125 [Khadr 2008]; and Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 SCR 44 [Khadr 2010].

[6] United States of America v. Khadr, 2010 ONSC 4338 [Khadr Extradition], affirmed 2011 ONCA 358 [Khadr Extradition Appeal].

[7] See “Abdullah Khadr extradition request may go to top court,” CBC online: < http://www.cbc.ca/news/politics/story/2011/07/29/pol-abdullah-khadr.html  >. Leave to appeal refused: [2011] SCCA 316.

[8] As quoted on the website of the PBS television show “Frontline,” online at: < http://www.pbs.org/wgbh/pages/frontline/shows/khadr/family/canada.html  >

[9] On this point, see Kent Roach, The Unique Challenges of Terrorism Prosecutions: Towards a Workable Relation Between Intelligence and Evidence, Vol. 4 of Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182 (Ottawa: Government of Canada, 2010).

[10] See generally Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge: Cambridge University Press, 2011); Roza Pati, Due Process and International Terrorism: An International Legal Analysis (Leiden: Martinus Nijhoff, 2009).