Crime sans frontières: International and European legal approaches
Peter J Cullen
William C Gilmore
CRIME SANS FRONTIERES: International And European Legal Approaches
Hume Papers on Public Policy Volume 6 Nos 1 and 2 Spring and Summer 1998
CRIME SANS FRONTIERES: International And European Legal Approaches
EDINBURGH UNIVERSITY PRESS
(c) The David Hume Institute
Edinburgh University Press 22 George Square, Edinburgh
In the post-Cold War world, many states have redefined their understanding of
"security". From 1945 until the collapse of Communism in Europe, most states
interpreted this concept primarily in terms of their relationship to the two global
superpowers, whose ideological and military antagonism dominated world politics. The
security threat posed by the Cold War existed as long as the nuclear arsenals of the
two superpowers continued to be assembled and aimed against each other and each
other's allies. Today's world appears safer because of the removal of this direct threat
to global peace, but it also appears more insecure in other senses: the end of the Cold
War has certainly not banished the prospect or reality of armed conflict; in some ways,
it has increased the risk of military conflict, even on the European mainland, as the
brutal hostilities in the former Yugoslavia have illustrated.
In the 1990s, discussion and definition of security by governments focus to a
much greater extent than during the Cold War era on serious crime. Rarely these days
does a summit meeting of Heads of State pass without some declaration to combat the
threat to democratic societies posed by transnational crime. By "transnational" in this
context Clark suggests that one include any "issues that have transboundary
implications and on which there is treaty, customary law or programmatic activity -
and of course combinations of the above." While the great majority of crimes of
international concern have cross-border implications, some, such as torture and
genocide, have arisen for international consideration "because they are so heinous".
Criminal activities with trans-border elements are widely perceived by
governments to be on the increase, and to be growing in seriousness. In particular,
"organised crime" is increasingly singled out as a major security risk. Combating these
forms of criminality by common action among states has become a major
preoccupation of policy-makers and continues to generate coordinated responses in an
increasing number of fora including the United Nations (see Clark) the G-7/8 (see
Gilmore and Wrench), and the Commonwealth (see Stafford).
Transnational crime as a phenomenon endangering international and, more
particularly, European security, is the primary subject of this study. Considerable
attention is also paid, however, to significant developments in the somewhat narrower
sphere of "crimes against international law" and to the nature and extent of the
challenges posed by the ever-increasing introduction of criminal law into public
international law. This trend, which is also closely associated with the end of the Cold
War, is, as Warbrick reminds us, "especially problematic because crime needs a
criminal justice system for its investigation and trial: courts, prosecutors, investigators,
rules of evidence and procedure, sentencing, prisons - and the means of enforcing the
orders of the organs of the criminal justice system, as well as mechanisms for
supervising the activities of all those who work within it." Particular attention is
devoted to developments in the area of international criminal adjudication as
manifested by the creation, through the UN Security Council, of ad hoc tribunals for
the trial of offences committed in the former Yugoslavia and Rwanda (see Neff) and
the proposals to create a Permanent International Criminal Court (see Borek and
Warbrick).
This book consists of a collection of papers, the product of a conference held
in Edinburgh in May 1997 under the auspices of the Department of Public International
Law and the Europa Institute of the University of Edinburgh (Faculty of Law). The
conference was organised with their financial support: thanks are due to Professors
Alan Boyle and John Usher, respective Heads of Department. The conference also
received the generous financial backing of the Trustees of the Russell Trust. Those
who helped organise the conference deserve a special word of thanks for their toil:
Margaret Ainslie and Annette Graham who provided secretarial support, Valsamis
Mitsilegas and last but no means least David Berry, who has since been rewarded with
an academic posting in the University of the West Indies in Barbados. Lydia Lawson
must be thanked for her great help in processing and preparing the papers for
submission to the Hume Institute. Professors Hector MacQueen and Brian Main,
general editors of the Hume Papers, are also thanked for willingness to publish the
conference proceedings.
Of course, the editors must also thank all those who spoke at the conference,
including Judge David Edward of the European Court of Justice, chaired sessions and
submitted papers. It has not been possible for all the speakers to update their papers to
take account of legal developments since May 1997, so the reader will, for example,
notice that several of the European contributions contain assessments of the state of
the negotiations leading to the Amsterdam Treaty of 2 October 1997 or predictions of
the outcome of the Intergovernmental Conference, rather than analyses of the Treaty
itself. Relevant materials appear as numbered appendices at The David Hume Institute
web site (http://www.ed.ac.uk/~hume). Appendix V contains the text of Title VI of the
Treaty on European Union ("Third Pillar") as revised by the Amsterdam Treaty,
Appendix IV the Third Pillar as it stands currently. The reader is referred to the
contributions by Müller-Graff and Walker for initial reactions to the Amsterdam Treaty
provisions; one or two related points concerning the Treaty will also be discussed in
this introduction, the main aim of which is to draw out some of the important themes
on transnational crime addressed by the speakers at the conference and developed by
them in their contributions to this book. Appendix III reproduces the "Action Plan to
Combat Organized Crime" adopted by the Council of Ministers of the European Union
on 28 April 1997 and approved by the European Council at the Amsterdam Summit in
June; parts of the plan fed into the Amsterdam Treaty. The two remaining appendices
are the Forty Recommendations of the Financial Action Task Force on money
laundering (Appendix I) and the Recommendations of the P8 Senior Experts Group on
organised crime (Appendix II), documents essential to an appreciation of the
contributions by Gilmore and Wrench respectively.
Internationally-organised or executed criminal activities may threaten a state's
internal order (murder of law enforcement officials or corruption of government
officials in a state, disruption of the state's banking and financial systems etc.) or,
more generally, and on an international scale, endanger principles of good governance
such as the protection of human rights or the integrity of democratic institutions. These
concerns about the risks to internal security and stability posed by transnational crime
are powerfully expressed by many of the contributors to this volume. The papers by
the members of the law enforcement community and the institutions represented here
assume that modern states, at least those in the advanced countries of the Northern and
Southern hemispheres, confront a new breed of "technologically literate" and adaptable
criminals, whose activities demand a sophisticated and strong legal response. These are
persons who are capable of exploiting modern global transport and telecommunication
networks and who are taking advantage of the removal of frontiers (an explicit goal of
the European Union) to commit crimes in a much wider range of countries than before,
often in more than one country at the same time, only to conceal their ill-gotten gains
in another state or states.
National systems of criminal law and criminal justice continue to differ
significantly though it is equally clear that in many respects the categories of criminal
conduct proscribed by states are similar and standards of criminal justice are
converging, not least as a consequence of common human rights standards imposed by
supranational courts or organisations such as the Strasbourg institutions (Gane). In the
absence of fully effective international collaboration, continuing differences in criminal
laws may be exploited by determined criminals who "shop around" for the forum most
suited - because the risk of detection is lowest or the threatened punishment least
severe - to their activities. The failure by the relevant authorities of different states to
cooperate fully in matters such as mutual legal assistance or extradition, for example in
terrorist cases, serves to exacerbate legal differences. Recent steps by the European
Union under the so-called "Third Pillar" of the European Union (Title VI of the
Maastricht Treaty on European Union of 1992) are helping to improve the legal
framework for cooperation on such matters, as the contribution by Nilsson indicates.
He argues that early critics of Third Pillar cooperation as ineffective have been
disproved. Similarly, changes to the domestic law and practice of England and
Scotland, outlined by Chase and Leigh, Bolt and Stott, have facilitated a major
improvement in this regard within the United Kingdom.
We can expect the European Union to place more emphasis on practical
implementation once the relevant Third Pillar Conventions and other legal instruments
are in force. The process of ratification of such Conventions is, however, cumbersome
and lengthy. Moreover, experience with instruments of European Community law
shows that it is one thing for the Council of Ministers to adopt a Regulation or
Directive, quite another for a Member State to implement or enforce it properly. The
effective enforcement of European Community law has been greatly enhanced by the
work of national and Community law courts. It has also proved necessary to develop
and refine effective forms of parliamentary scrutiny at national and European level to
legitimise and promote adherence to Community norms. So long as European or
international criminal justice and police cooperation remain inadequately reviewed by
accountable institutions, effective implementation of norms of public international law
is likely to prove difficult. The crucial work on implementation of the 40
Recommendations of the FATF must, however, be mentioned here (see contribution by
Gilmore). Of particular note in this regard has been the process of mutual evaluation,
one now being utilised by the Council of Europe in the area of money laundering
counter-measures undertaken by its non-OECD member states. This process has also
attracted the attention of the European Union in the context of the 1997 Action Plan
on Combating Organized Crime (see Appendix III).
One should not underestimate the achievements of criminal justice cooperation
in Western Europe since the War, notably the work of the Council of Europe, whose
membership now extends to include Russia and other members of the former Soviet
bloc (see Csonka). Latterly, the European Union has begun to imitate and expand upon
the work of the Council. The pace of cooperation has quickened considerably in the
1990s. This intensification of criminal justice and police cooperation has not, however,
in essence, disturbed states' claims to govern and police their systems of criminal
justice separately (see Müller-Graff's discussion of the "competence issue", in relation
to the European Community). It is this claim to autonomous governance of one's own
system of criminal justice which is encompassed by the notion of state "sovereignty"
over criminal matters. The constitutional quality of statehood as such is, as the
contribution by Walker explains, closely tied up with control over internal order and
the criminal law. Nevertheless, as several contributions make clear, national
sovereignty over criminal law and justice is increasingly under challenge: for example,
the "spill-over effect" of European Community internal market policy, i.e. the creation
of a single market in goods, services, persons and capital, which has been felt in so
many non-economic areas of policy, is increasingly touching the criminal laws of
Member States. The protection offered by the criminal law to national state interests
must also now be extended to the protection of the four "fundamental freedoms" of
European Community law. Where, in an internal market without frontiers, it can
demonstrably be shown that common European legislative or executive action is
essential in order to combat a serious criminal threat, it will be difficult for a state such
as the United Kingdom to preserve its "sovereign territory" without inviting the
criticism that it is "going soft" on international criminals.
Where the "good" which demands protection is transparently supranational in
character, such as the European Community's budget (see Knudsen), it will be
especially difficult to resist some ceding or pooling of sovereignty to supranational
European institutions. The European Commission and European Parliament, in
particular, are unlikely to acquiesce indefinitely in the intergovernmentalist approach
maintained for criminal justice and police cooperation by the Amsterdam Treaty.
Several contributors indeed argue that, on effectiveness grounds, states should agree
greater harmonisation of national laws and administrative practices in the European
Union, for example in the field of policing (Genson). Nevertheless, proof of the best
(most effective) way of combating transnational crime, or the most effective criminal
legislation, is no easy matter and the European Treaties, even in amended form after
Amsterdam, do not point unequivocally in the direction of greater supranational, as
opposed to national, control. The extended competences of Europol must, for
example, be balanced against the subsidiarity concerns which form a more solid part of
the European constitutional balance after Amsterdam (the subsidiarity principle is also
expressed by the Europol Convention of 1995). European Community law will not,
even after entry into force of the Amsterdam Treaty provisions, provide a general legal
basis for criminal legislation (Müller-Graff).
The discussion of transnational crime, and indeed the direction and rhetoric of
governmental policy on the matter, continue to be bedevilled by problems of definition
(what exactly is "organised crime"?) of measurement (uncertain, incomplete, or
unreliable state of police or government statistics, especially on transnational crime)
and of cause and effect (does the opening of internal borders really cause more crime
and therefore justify "compensatory" security measures?). The contributions to this
book do not ignore these vitally important questions but they are not their major
concern. Rather, they focus primarily on the practical means of cooperation in criminal
justice matters and the supporting legal and constitutional framework, i.e. they deal
with the practical and legal responses to acknowledged cross-border manifestations of
crime, without delving too deeply into the definition, measurement or causes of these
phenomena.
The contribution by Bruggeman provides some more precise indications of the
particular crime problems faced by each European state and reminds us that one must
not lump all states together in the assessment of crime risks: for example, the threat
posed by organised crime would seem to be greater in some Member States of the
European Union, such as Germany, than others. The willingness of states to change
their laws - e.g. laws concerning bank secrecy - to combat transnational crime may
vary accordingly. Obviously, states will be more likely to collaborate with others when
they perceive their own internal security to be threatened, i.e. where the problems are
genuinely common or cross-border in character. The unanimity requirement which
operates in decision-making over criminal justice and police cooperation matters in the
European Union does in the end enable one state to block "progress", though the
flexibility provisions of the Amsterdam Treaty are designed to make persistent
blocking tactics futile. In any case, it would not be safe for any state to assume that it
could remain immune, indefinitely, from certain forms of transnational crime currently
prevalent only in other states.
In the modern world, perhaps especially in a Europe sans frontières, crime and
criminals can travel fast. Laws and administrative practices are certainly more difficult,
and slower, to change. Much has, however, been accomplished in the field of criminal
justice cooperation in the 1990s and there is a great deal of important work in
progress; this book identifies some of the most significant legal reforms which have
been made and thus provides a snap-shot of progress (global, European and national)
in combating serious transnational crime at the close of the century. There is also
analysis of the limits and inadequacies of the current legal situation. Several
contributors have argued, explicitly or implicitly, that states should overcome their
sometimes deep-rooted concerns about loss of sovereignty in order to promote more
joint decision-making and harmonisation of laws in the criminal justice and policing
fields.
Some of the continuing hindrances to effective cooperation between police or
criminal justice authorities can be attributed to legitimate legal interests, such as
protection of human rights and democratic control of government; rule of law
principles necessarily constrain crime-fighting by police and other arms of government.
Plausible arguments have nevertheless been made in favour of the steps taken by
governments, as described by the contributors, to combat what is widely seen as the
growing menace of transnational crime. The general public and the media are usually
receptive to repressive measures of criminal policy, but there has been relatively little
public debate of the issues discussed in this book. National parliaments have certainly
found it more difficult to scrutinise the conduct of "foreign criminal policy" than the
domestic variety. Public debate, forcing justification of policy, is, however, an essential
element of good governance, and should be encouraged in this domain; ultimately, the
effectiveness of state measures to fight transnational and international crime will
depend upon public support.
Peter J Cullen William C Gilmore Old College, December 1997
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