Open Access Research Article
Jurisdiction And Transnational Crime (By-Tanmay Yadav & Aniket Raj
Published Paper
Article Details
Jurisdiction And Transnational Crime
Author 1
-Tanmay Yadav (9131091183)
Course- BBA
LLB 2019-24
Institution-
IFIM Law School
Author 2-
Aniket Raj
Course- BBA
LLB 2019-24
Institution-
IFIM Law School
Abstract
The population on our planet is
growing drastically every year, and so does the volume of exchanges between
different nations. The vast majority of these exchanges are legitimate and
beneficial, but some part of it is not. The growth of transnational crime is a
threat to the rule of law, without which there can be no sustainable world
development. Transnational criminal markets are throughout the planet, dealing
in drugs, arms, trafficked women, toxic waste, stolen natural resources, or
protected animals’ parts. A huge chunk of dirty money flows through the world
every year, distorting local economies, corrupting institutions, and giving
rise to conflict. Thus, in this research paper, we are going to find a solution
to fight against transnational crimes by the way of coordination among nations
and mechanisms like data sharing related to transnational crime, which will
also involve case studies on various nations with effective policies on
transnational crimes.
Introduction
In recent times cooperation between
nations throughout the world has increased to combat the uprising of
transnational crimes throughout the world. For instance, Cooperation between
the US and Kenya in confronting illicit trade in wildlife and narcotics has
resulted in notable success in recent years. In the case of the well-known
Akasha brothers - Baktash Akasha and Ibrahim Akasha. Baktash Akasha was
banished from Kenya and became the first Kenyan to be sentenced on drug
trafficking charges in New York in Year 2019.
The Term Transnational crime means a
crime that takes place across national borders, between two or more nations.
For instance, when criminals illegally move people across the national border
then their actions are a transnational crime.[1]
Recently, the Albanese government has mobilized diplomacy and aid in the effort
to counter Sri Lankan smugglers.[2]
Laws To
Govern Transnational Crime –
Laws concerning this can be divided
into 2 categories i.e., Domestic laws and international laws. Both of these
laws are required to work in coordination with each other for the effective and
efficient prevention of transnational crime. International law is governed by agreements like
treaties and by customs. Custom refers to the things countries perform as a
sense of perceived legal obligation. Treaties and customs are covered majorly
under public international law, that is, the law governing how countries
maintain diplomatic relations with one another. But nations and international
organizations have largely failed to foresee the evolution of Transnational
Organized crimes into a strategic threat to governments, societies, and global
economies. At the international level, an outmoded understanding of
Transnational Organized Crimes does not adequately observe the strategic impact
of Transnational Organized Crimes and fails to ensure peace efforts and
crime-fighting are not working at disparities. A thorough overhauling of
international cooperation in dealing with Transnational organized crimes is
needed to improve information sharing; develop international investigative,
monitoring, and prosecutorial tools; and integrate strategic decision-making in
international peace and crime-fighting.
Kinds Of Transnational
Crimes
Ø Cybercrime: This category consists of every
crime that involves a computer network. According to the Council of Europe’s
treaty, cybercrime can include illegal access and interception of computers,
computer communications, forgery, fraud using computers, child pornography, and
copyright infringement.[3] For
instance, illegally downloading games and movies may constitute a transnational
crime.
Ø Drug trafficking: This involves the distribution,
sale, cultivation, and manufacture of substances related to drug prohibition
laws.[4] Moving
heroin from Afghanistan into Iraq is an example of such transnational drug
trafficking.
Ø Environmental crime: This crime involves illegal harm to
the environment. It consists of illegal fishing or trade-in animals, illegal
trade in substances that harm the ozone, illegal dumping of hazardous waste,
and illegal logging.[5]
Ø Human trafficking: This transnational crime involves the
recruitment, transportation, transfer, or harboring of people by force or
deception for exploitation.[6] Trafficked
persons are exploited for sex, labor, and occasionally for organs.
Ø Money laundering: This crime involves the disguise of
money or property to hide the origin from where it is gained from a crime. For
instance, forging, fake business receipts to disguise the source.[7]
Ø Weapons trafficking: The sale or movement of ammunition
cross-border without the permission of both the nations or without the proper
ammunition documentation.[9]
The
Distinction Between Transnational Crime And International Crime
There is an important discrepancy
between transnational crime and international crime. International crimes
concern primarily genocide, war crimes, and crimes against humanity. These
crimes have a wide scope, are especially critical, and are generally
perpetrated by government players. Thus, international crimes are considered
part of the public international law doctrine. In distinction, transnational
crimes, which are more limited in scope and are carried out by private players,
are not.[10]
Applicability
Of Transnational Crime
There are two reasons why it is
important to determine whether a crime is transnational or not
First, determining who has
jurisdiction over a transnational crime is much more complicated than for a
domestic one.
Second, countries use techniques
like–international organizations and agreements, to investigate and prosecute
transnational crime.[11]
Transnational
Crimes Jurisdiction
Determination of jurisdiction of such
crimes is complicated. To get a better understanding of it let’s consider
prosecution of a domestic crime. Where both the victim and the offender are in
the same country, which is the same country where the crime took place. The
courts of that country will decide the case.[12]
But when it comes determining where to prosecute transnational crimes is
complicated. The victim and offender may be in different countries. Also, the
place where the crime took place may be somewhere else. The challenge is to
figure out the authority, or jurisdiction, to decide on a case involving
transnational crime. Before going forward with the discussion on transnational
crime, let’s know what jurisdiction means. In this context, jurisdiction is the
people, natural features, or issues over which a court has the power to hear
cases and issue decisions. Where the court has jurisdiction over the territory
in which the crime occurred, which is also known as territoriality
jurisdiction. Where the court has jurisdiction over the person who purportedly
committed the crime, which is known as personality jurisdiction. Or where the
crime itself was of a type that the court per se has jurisdiction, which is
known as universal jurisdiction. Different types of jurisdictions are applied
to different cases, these different approaches to getting jurisdiction apply in
matters of transnational crime.
Countries sometimes claim
jurisdiction over a crime based on the people involved and their roles in the
crime. This is known as personality jurisdiction. In some cases,
countries claim jurisdiction over crimes where one of their citizens is the
offender, it is known as nationality jurisdiction.[13]
In some cases, other countries claim jurisdiction over crimes where one of
their citizens is the aggrieved party, it is known as passive personality
jurisdiction and some countries claim jurisdiction over offenses committed
outside their borders but that looms the sovereignty, security, and integrity
of the state, is known as protective jurisdiction. [14]When
a state claims jurisdiction over criminals based on the place where the crime
was committed, is known as territoriality jurisdiction.[15]
Commonly, if any of the stages of a crime
occur within a country’s territory, that country will have jurisdiction to
prosecute the crime. For example, if criminals plan a murder in one country,
commit the crime in another country, and dispose of the body in a third
country, all three countries may have jurisdiction to prosecute the crime. In
some cases, countries also grant jurisdiction access when there is a
significant detrimental impact felt in the country, even if no stage of the
crime took place there. In some instances where some crimes are
especially horrendous, countries use universal jurisdiction. Universal
jurisdiction permits a country to prosecute a crime by not considering the
place where the crime took place irrespective of the nationality of the victim
or the offender. Individual countries determine whether or not to apply
universal jurisdiction. The concept is typically limited to particularly
horrific international crimes but many countries in several instances have
extended such jurisdiction to the national crime of ordinary nature as well.[16]
Jurisdictional
Limitations
In multiple instances, it has
happened that because of wrongdoers’ special status sometimes the jurisdiction
is limited. For example, most nations recognize sovereign immunity, the concept
that says that one cannot prosecute a foreign official. Some states also
acknowledge diplomatic immunity, which safeguards diplomats and their families
from arrests and prosecutions and some states recognize immunity for people
functioning on behalf of international organizations i.e., peacekeepers of the
UN.[17]
Therefore, if a diplomat commits a trivial offense during official business
such an individual is typically immune from prosecution.
Handling Of
Jurisdictional Conflicts
Many countries can claim jurisdiction
for the same people and the same crime. One country may be able to prosecute a
criminal under territorial jurisdiction, another under protective jurisdiction,
and another under universal jurisdiction. This creates a complex situation for
states, many of which may give rise to disputes about getting the upper hand to
prosecute criminals, or on the other hand may try to avoid the cost of trying
to imprison them.
This is a unique problem for
transnational crime. International law
recognizes and accepts this conflict. One practical instrument for resolving
this conflict is an extradition treaty, Extradition treaties are agreements
between countries on actions and coordination to treat criminals caught in one
country for crimes committed in another. One of the major issues which
extradition treaties often address is ways to handle jurisdictional conflicts.[18]
Ways Of
Fighting Transnational Crimes
In function, there are 3 kinds of
instruments for combating transnational crime that can be accomplished by
co-ordination of parties involved: unilateral, bilateral, and multilateral.
First, countries often act by themselves to capture criminals within their own
countries. It is called unilateral because they concern just a single country.
Second, countries make various kinds of treaties amongst themselves, some of
them are called “Mutual Legal Assistance Treaties,” and others are called
extradition treaties to help law enforcement agencies work in coordination.
Various countries are also working with international organizations to publish
and investigate transnational crimes. This is called multilateral because it
involves many countries.
- Bilateral tools
There are two main bilateral tools
for combating transnational crime: Mutual Legal Assistance Treaties and
extradition treaties.
Mutual Legal Assistance Treaties are
penned so that countries may help one another examine, prosecute, and punish
criminal offenses. Countries enter into Mutual Legal Assistance Treaties to
accomplish what they cannot achieve alone with the way of cooperation of other
countries. With the help of Mutual Legal Assistance Treaties countries track
and apprehend criminals outside their borders. Some of the Mutual Legal
Assistance Treaties necessitate those countries to return stolen assets to one
another. Other treaties require the member countries to exchange information
about cases and crimes. Some treaties demand that countries help one another in
training their law enforcement agents and other treaties ask others to be allowed
to pursue suspects in their own countries.
The second bilateral tool is the
extradition treaty, which is a form of legal assistance treaty, but due to its
utmost importance, it is worth considering it separately. Extradition permits
one nation to arrest a criminal accused of a crime in another nation. For
instance, if Daniel commits a bank robbery in Denmark, then flees to Australia,
Australia may arrest and return Daniel on Denmark’s behalf, if the countries
have an extradition treaty amongst themselves. More specifically, the state to
which the criminal has fled (Australia, in our example with Daniel) will often
make a temporary arrest, that is, temporary detention until the requesting
state (in this example, Denmark), can accumulate the documentation for a formal
extradition request. For this to take place, the arresting state must have some
jurisdiction over the criminal. Most of the extradition treaties are bilateral
although there are multilateral treaties on the subject as well.
There are certain limitations on
extradition treaties that are crucial to recognizing. First, for extradition to
apply, the offender's actions must have been a crime in both countries
involved. For example, a criminal can only be extradited for blasphemy if
blasphemy is a crime both where the crime was committed and where the criminal
was arrested. Therefore, it is not that the crime must have occurred in both
countries but that it ought to be defined as a crime in both. Let’s take our
earlier example, when Daniel commits a bank robbery in Denmark, then flees to
Australia, Daniel can only be captured in Australia if his actions are
considered a crime in both Denmark and Australia. One of the important
limitations on extradition is the political offense exclusion. In many cases
extradition treaties, states will not extradite individuals accused of
committing violent acts for political reasons. So, if Burk breaks a government
window in London in protest, then flees to France, France is unlikely to
extradite him, even if such an act of vandalism is a crime in both countries.
Third, most of the extradition treaties need that persons who are extradited
only be prosecuted and detained for the crimes for which they were extradited.
Many bilateral extradition treaties are based on the UN Model Treaty on
Extradition, also known as the Rule of Specialty.[19]
Great Britain once extradited a suspected murderer to the U.S. Once there,
however, the U.S. charged the suspect, with a different crime other than murder
and inflicted cruel and unusual punishment. The U.S. Supreme Court said that
this change violated the Rule of Specialty and rejected the conviction.[20]
·
Unilateral tools
The most crucial work of combating
transnational crime occurs at the national level. Most of the instruments for combating
transnational crime are unilateral. The variety of tools that countries use on
their own varies tremendously. It involves strengthening their borders, passing
new criminal statutes, and improving the enforcement of remaining instruments.
It is the states and not international organizations that are the primary tools
for combating drug trafficking, human trafficking, and a variety of other
crimes.[21]
·
Multilateral tools
One of the most important
multilateral instruments is INTERPOL, an organization established with the
purpose to help police departments around the world to cooperate. INTERPOL does
not make arrests, but it does issue red notices about fugitives who are wanted
due to an arrest warrant or court order. These notices help develop an international
understanding of these criminals and encourage countries to cooperate amongst
themselves. These notices are capable of limiting the freedom of movement of
these criminals.
The Financial Action Task Force is
another important organization to help countries combat transnational crime, in
this case, financial crimes. IT was established in 1989 by the G7, which
consists of the countries with the most advanced economies, to combat money
laundering. The organization achieves this by establishing government ideal
practices, and [22]ideal
policies, for thwarting money laundering, and encouraging countries to adopt
those measures.
Conclusion
In this paper on transnational crime,
we looked at various aspects of transnational crime. First, we learned about the
meaning of transnational crime and how it is unique. Second, we learned about
various types of jurisdictions for commencing a trial to prosecute
transnational crimes. i.e., territorial, personality, and universal. And at
last, we learned about the various tools that are being used to combat
transnational crimes i.e.: bilateral, multilateral, and unilateral. We also recognized that transnational crime
is different from a both domestic and international crime.
We observed that there are situations
where sometimes overlapping takes place between two countries, to get
jurisdiction over transnational criminal cases. And at the end, we also went
through the wide range of tools available for fighting transnational crime.
Irrespective of the career you choose be it; law, business, or government,
knowledge about all this will be useful to avoid and prevent transnational
crime.
By adopting an effective universal
Statute with regards to jurisdiction over core crimes, international society
can focus on these crimes and should be able to accept the challenge of dealing
with transnational crime in a more articulate manner. But identifying all forms
of international penal cooperation along with the core international crimes
gives a vague view of the extent and nature of this cooperation because it
ignores the role of the suppression conventions. Moreover, it leaves
unreciprocated the challenge of developing the consistency of the legal system
that these conventions establish. Jurisdictional barriers between states will continue
to be battered by the forces of transnational crimes. The system of law
established by the conventions should be developed to enable this convergence.
The system should be tested against the domestic laws at the place. Thus,
effective, and efficient cooperation is required between the countries
throughout the world which can be brought into the scene with the help of
conventions and treaties with regards to combating transnational crime.
Countries throughout the world should be unified against this fight against
transnational crime instead of escaping the liability of jurisdiction when it
comes to exercising their jurisdictional powers.
Article Information
Jurisdiction And Transnational Crime (By-Tanmay Yadav & Aniket Raj
Authors: Tanmay Yadav, Aniket Raj
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/08/05
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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