Human Rights and Transnational Organized Crime

Schulich School of Law, Dalhousie University Schulich Law Scholars Articles, Book Chapters, & Blogs Faculty Scholarship 2021 Human Rights and Transnational Organized Crime Robert Currie Sarah Douglas Follow this and additional works at: https://digitalcommons.schulichlaw.dal.ca/scholarly_works Part of the Criminal Law Commons, Human Rights Law Commons, and the Transnational Law Commons Chapter 24 Human Rights and Transnational Organized Crime Robert J. Currie and Sarah Douglas Introduction Taking for granted that the phenomenal aspects of transnational organized crime (TOC) are explored in great detail in the other chapters of this handbook, the goal here is to bear down on two intertwined and fundamentally legal aspects: (1) the international legal regime around the suppression of TOC by use of the criminal law, and (2) the international system set up by states for the promotion and protection of human rights. In fact, as this chapter will demonstrate, these two bodies of international law are not only intertwined but symbiotic, each informing and informed by the other in substance, procedure, and direction. Our choice to focus on legal topics here is deliberate, and derives from the very nature of the subject matter. “Human rights” means many things to many people, we suppose, but is fundamentally a legal concept describing the manner in which states (and sometimes their sub- units) agree and are obliged to uphold, and refrain from unduly interfering with, certain fundamental entitlements and freedoms held by individuals.i As these rights are ultimately creatures of international law,ii we will emphasize international human rights law (Saunders and Currie 2019: 634-37). The “transnational” in “transnational organized crime” refers to the simple fact that this form of crime crosses state borders, and that the criminal enforcement response necessarily engages questions of public international law—most specifically, those issues covered by the body of law usually referred to as “transnational criminal law,” which encompasses those norms through which states cooperate to suppress crimes of mutual interest (Boister 2018). This chapter will scrutinize the points at which these two legal regimes intersect with and infuse each other. It will proceed in three sections. The first section will provide a brief overview of the international human rights law system, specifically tailored to ground the following parts. The second section will examine the means by which protection is given to the human rights of individuals who are targeted for criminal investigation and prosecution as a result of their alleged involvement in TOC (referred to for efficiency as “accused persons” or “the accused”). It will first briefly explain the means by which the accused’s rights are protected (or meant to be so) in domestic criminal investigations, and then turn to the more complex questions around protecting accused’s rights when they are targeted by inter-state cooperation mechanisms such as extradition. The third and final section will examine the more cutting-edge issue of whether state obligations and activities around crime suppression can—and should—themselves promote and protect the human rights of individuals, in a proactive rather than reactive manner. This idea, lately referred to as “coercive human rights” (Lavrysen and Mavronicola 2020), will be explored through the lens of one of the more odious brands of TOC, human trafficking, and an examination of both the actual and prospective means by which crime control mechanisms can promote the human rights of victims. The International Human Rights System While notions of human beings enjoying inherent fundamental or natural rights can be tracked back to antiquity, the modern scope of human rights law being discussed here can be safely “traced back to concerns with individual and constitutional rights which began to emerge in parliamentary action and philosophical writings from the late seventeenth century” (Harfield 2012). The atrocities of the Second World War firmed up ideas that had emerged from this background, specifically that it was not only necessary but desirable to limit the previously absolute sovereignty of states in order to prevent or provide redress for depredations perpetrated upon their own citizens, within their own borders. The Charter of the United Nations contained affirmative references to human rights as one of the primary purposes of the organization (and the new international order to which it gave rise), but the first clear statement of what was specifically aspired to emerged in 1948, with the Universal Declaration of Human Rights (‘UDHR’).While not a binding treaty, the UDHR made strong aspirational declarations of entitlement to civil, political, economic, social, and cultural rights that essentially set the template for the emerging international human rights law regimes that followed. Initial state resistance to such incursions on their sovereignty was eventually overcome and by 1966 the two treaties that, together with the UDHR, make up the “international bill of rights” were concluded: the International Covenant on Civil and Political Rights (‘ICCPR’) and the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’). These instruments have been supplemented by numerous other UN-sponsored treaties that put focus on particular rights, such as the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’) and the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (‘UNCAT’). Regional human rights treaty systems have also emerged, including those under the European Convention on Human Rights (‘ECHR’) (1950), the American Convention on Human Rights (‘AmCHR’) (1969), the African Charter on Human and Peoples’ Rights (‘ACHPR’)(1981), and the Arab Charter of Human Rights (ArCHR) (2004).iii Of course, legal human rights norms are of little use when they are not enforceable against governments on the part of individuals. Enforcement essentially works in two ways. First, at the domestic level, states are required to “implement” or give effect to the human rights obligations which they have accepted under relevant treaties. Practically speaking, this means that they are meant both to guarantee the human rights to individuals and provide avenues of redress in cases where they do not. States approach this differently, in accordance with the way in which their domestic systems treat international law and with their own legal and constitutional arrangements. In Canada, for example, civil and political rights are constitutionalized by way of being enshrined in the Canadian Charter of Rights and Freedoms, which binds the federal and provincial governments to guarantee these rights and gives individuals the ability to obtain remedies from the courts for breaches (1984: s. 24). In the UK, by contrast, obligations are implemented via a statute, the Human Rights Act (1988). When states fail to comply with their international law obligations to guarantee human rights, then in principle they should be enforceable in two other ways: 1) proceedings brought by other states for violation of the treaty obligations; and 2) direct individual petition to a court or other enforcement body. The former option is not one that sees much traffic, but it is the latter that makes up some of the revolutionary aspects of international human rights law generally. Prior to the outset of this legal framework, international law was viewed as the preserve of states alone and involving only state-to-state obligations. Individuals were seen only as the objects of international law and not the subjects; they were acted upon but had no standing to act and were owed no duties by states. One of the main objectives of international human rights law is to allow individuals to pierce this domain and have the ability to bring governments to court in order to vindicate their rights. Practically speaking, as a whole this is enforceability only in principle, for its robustness varies considerably from system to system. The apogee is the European system, in which individuals can bring their domestic cases to the European Court of Human Rights (ECtHR), its various chambers acting as ultimate courts of appeal. Notably, the rulings of this court are subject to direct application in the legal systems of the party states, meaning that states must adjust their laws and/or practices in order to comply with the court’s interpretations of the ECHR. By contrast, states that are party to the ICCPR are subject to the UN Human Rights Committee, which can be directly petitioned by individuals; however, the Committee only issues “views” which are prima facie non-binding on the states against which proceedings are brought. The UN system also maintains expert bodies which monitor compliance with other instruments, such as the UN Torture Committee (UNCAT; Committee Against Torture) which can hear allegations that states have breached the UNCAT or bodies with still less “hard” authority like the UN Working Group on Arbitrary Detention, a body which investigates and issues reports on breaches of various treaty rights against arbitrary detention by government authorities (UNCAT; Working Group on Arbitrary Detention). To the extent that there is “case law” around the enforcement of human rights at the international level, then, it is the decisions that issue from these bodies. As a final point, a useful explanatory device for understanding human rights is the “generation

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