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Synergies Between Core and Transnational Crimes: an Analysis

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Synergies Between Core and Transnational Crimes: an Analysis SYNERGIES BETWEEN CORE AND TRANSNATIONAL CRIMES: AN ANALYSIS FROM THE PERSPECTIVE OF THE ROME STATUTE Synergies Between Core and Transnational Crimes RAFAEL BRAGA DA SILVA* This article examines the validity of the normative and theoretical distinction between core and transnational crimes as well as their phenomenological relationship inter se. It criticises the definitional orthodoxy of international crimes as embodied in the jurisdictional provisions of the Rome Statute of the International Criminal Court in light of the theoretical and criminological underpinnings of ‘core crimes’ as an autonomous category of crimes. It then argues, based on International Criminal Court (‘ICC’) case law, that the fictional categories of core crimes produce a myopic view over real life events that does not take into consideration broader events and transnational crimes that enable core crimes. The article then highlights the (modest) potential of addressing transnational criminality within the ICC legal and institutional framework by focusing on two possible avenues: evidence-sharing and charging conduct amounting to transnational crimes under accessorial liability to core crimes. Ultimately, the article aims to discuss what the potential role of the ICC is in combatting transnational crimes as well as the advantages and shortcomings of any such role. CONTENTS I Introduction ............................................................................................................... 2 II Mind the Gap: Challenging the Traditional Grounds of Distinction between Core and Transnational Crimes ......................................................................................... 4 A Different Legal Goods? ................................................................................ 7 B Different Contextual Elements? ................................................................. 12 C Different Perpetrators? ............................................................................... 15 III Lost in the Middle: Synergies between Core Crimes and Transnational Crimes ... 19 A Transnational Crimes Providing Goods and Services to Perpetrators of Core Crimes ................................................................................................ 20 1 The Situation in the DRC and the Illegal Arms Trade ................... 20 2 The Situation in Darfur and Financial Crimes ............................... 23 B The Commission of Transnational and Core Crimes by the Same Set of Perpetrators ................................................................................................. 25 1 The LRA in Uganda and the DRC and the Illegal Exploitation of Natural Resources .......................................................................... 26 2 Colombian Armed Groups and International Drug Trafficking ..... 28 IV Bridging the Gap within the Existing Framework: The Rome Statute as the Connector ................................................................................................................ 30 * Attorney at Law. LLM, University for Peace and United Nations Interregional Criminal and Justice Research Institute (UNICRI); LLM in Advanced Studies in Public International Law (cum laude), Grotius Centre for International Legal Studies, Leiden University. The author would like to thank Dr Sergey Vasiliev and Paula Baldini Miranda da Cruz for their review and insights on the paper. The author would also like to thank the Melbourne Journal of International Law editorial team and the anonymous reviewers for their comments. The views expressed herein are those of the author in his personal capacity and do not necessarily represent those of any organisation with which he is or was affiliated. This article is based on the Advanced LLM thesis the author submitted in fulfilment of the requirements of the Master of Laws: Advanced Studies Programme in Public International Law degree, Leiden Law School, Leiden University. 1 2 Melbourne Journal of International Law [Vol 21 A The Indirect Connection — Cooperation with States and International Entities ........................................................................................................ 31 B The Direct Connection — Transnational Crimes as Modes of Liability to Core Crimes ................................................................................................ 36 1 Modes of Liability and Transnational Crimes ................................ 37 2 The Problems with Using Modes of Liability ................................ 40 V Conclusion .............................................................................................................. 42 I INTRODUCTION The International Criminal Court (‘ICC’) is the pinnacle of the international criminal justice project. It represents a move from ad hoc courts to one of a permanent character, with the Rome Statute of the International Criminal Court (‘Rome Statute’)1 providing a clear set of core international crimes under the ICC’s jurisdiction. These crimes threaten ‘the peace, security and well-being of the world’ 2 and are the ‘most serious crimes of concern to the international community as a whole’.3 During the preparatory work leading up to the Rome Statute, states considered adding several other crimes to its limited list. For example, drug trafficking — which renewed the diplomatic efforts on establishing a permanent international criminal court4 — was discussed at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court but ended up being put aside for further consideration. 5 The Rome Statute favours the notion of limited substantive jurisdiction aimed at investigating, prosecuting and adjudging genocide, crimes against humanity, war crimes and the crime of aggression, in accordance with art 5 of the Statute. Within the ICC’s jurisdiction, these are ‘core crimes’. However, what constitutes an ‘international crime’ is still pervaded by ambiguities and unsolved questions, showing a certain artificiality of the definition when it comes to determining which crimes an international criminal tribunal should adjudicate.6 While it is understandable that jurisdictional choices were made in creating the ICC, leaving transnational crimes outside the substantive jurisdiction of the Court does not erase their existence. In fact, in some instances, transnational crimes are being committed in the same context as or by the same perpetrators of core crimes,7 either providing the means — or the environment — for the commission of the latter. The jurisdictional choices made in the drafting of the Rome Statute 1 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (‘Rome Statute’). 2 Ibid Preamble para 3. 3 Ibid Preamble para 4. 4 International Criminal Responsibility of Individuals and Entities Engaged in Illicit Trafficking in Narcotic Drugs across National Frontiers and Other Transnational Criminal Activities: Establishment of an International Criminal Court with Jurisdiction over such Crimes, GA Res 44/39, UN GAOR, 6th Comm, 44th sess, 72nd plen mtg, Supp No 49, UN Doc A/RES/44/39 (4 December 1989). 5 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Final Documents, UN Doc A/CONF.183/13 (Vol. I) (2002) 71−2. 6 Roger O’Keefe, International Criminal Law (Oxford University Press, 2015) 57–64. 7 While there is an overlap between international and transnational crimes, the latter are not only committed congruently with international crimes. 2020] Synergies between Core and Transnational Crimes 3 only address part of the criminality by focusing on core crimes, leaving domestic jurisdictions to investigate and prosecute transnational crimes. When we label international crimes as ‘core’ crimes, we elevate those crimes in a way that gives them some additional status in relation to other crimes.8 Transnational (‘non-core’) crimes are then pushed to the periphery of international law and out of the international criminal law regime.9 They are marginalised.10 This duality is even more intriguing considering that developing states were the main ones to support the inclusion of some transnational crimes into the ICC’s jurisdiction, while developed states resisted this proposal and defended having only a small number of crimes in the category of international crimes.11 Diplomats and professionals therefore took a political step in the negotiations of the Rome Statute relating to the material jurisdiction of the ICC, furthering the gap between core crimes and transnational crimes. The core research question underpinning this article is: how different are core crimes from transnational crimes? While two different bodies of law were created around the legal definitions of core and transnational crimes, namely international criminal law and transnational criminal law, the theories used to support this differentiation do not justify the distinction but rather approximate it. Because transnational crimes can only be prosecuted in domestic jurisdictions, further investigation of the traditional grounds of differentiation between core and transnational crimes is warranted (Part II). Based on this discussion, this article argues that core and transnational crimes have synergies between them that mutually reinforce their commission (Part III). From the standpoint of the ICC, this article argues that organs of the Court have not properly identified
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