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International Crime and Punishment: the Gap Through Which to Drive a Mafia

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International Crime and Punishment: the Gap Through Which to Drive a Mafia INTERNATIONAL CRIME AND PUNISHMENT: THE GAP THROUGH WHICH TO DRIVE A MAFIA Wayne McCormack* I. INTRODUCTION..................................................................................................624 II. WAR-CRIME AND PUNISHMENT .......................................................................628 A. Origins of Organized Violence and the Idea of Control ............................628 B. Sources of the Law of Armed Conflict (LOAC)........................................629 C. Modern Law of Armed Conflict.................................................................632 1. Sanctioning Violations of LOAC by Nation-States ...............................634 2. Sanctioning Violations of LOAC by Individuals ...................................636 3. Crimes in the Absence of War—an International Law of Atrocity........637 III. TERRORISM—CRIME AND PUNISHMENT ........................................................639 A. The Theory of Terrorism and a Brief History............................................640 B. The International Response........................................................................643 C. Enforcement by Individual States ..............................................................648 1. United States...........................................................................................648 2. United Kingdom .....................................................................................650 3. Canada ....................................................................................................652 4. Australia .................................................................................................654 5. Germany .................................................................................................655 6. Netherlands.............................................................................................656 7. France .....................................................................................................656 IV. HUMAN TRAFFICKING—CRIME AND PUNISHMENT ........................................657 A. A Brief History of the Slave Trade ............................................................660 B. Varieties of Human Bondage .....................................................................663 C. Definitions of Prohibited Servitude............................................................666 D. Enforcement ...............................................................................................668 1. United States...........................................................................................668 * Professor McCormack received a B.A. from Stanford University and a J.D. from the University of Texas, where he graduated Order of the Coif and was associate editor of the Texas Law Review. After graduation he clerked for Judge Walter Ely of the U.S. Court of Appeals for the Ninth Circuit and then taught at the University of Georgia School of Law. He also served as Associate Director of the Association of American Law Schools from 1975-78. Professor McCormack joined the faculty at the University of Utah S.J. Quinney College of Law in 1978 and served as Associate Dean for Academic Affairs from 1978-82, 1984-87, and 1993-94. From 1997-2002 he coordinated the University of Utah’s involvement with the 2002 Olympic Winter Games, and that experience led to security planning for major events and interest in international legal issues, including the law of war and terrorism. That interest has now broadened out into other aspects of affronts to human dignity, such as human trafficking, piracy, and cyber crimes. 624 Arizona Journal of International & Comparative Law Vol. 31, No. 3 2014 2. Australia .................................................................................................673 3. European Convention Cases...................................................................674 E. Sex Tourism................................................................................................677 F. International Cooperation Addressed to Human Trafficking .....................677 V. PIRACY—CRIME AND PUNISHMENT ................................................................681 A. The Setting .................................................................................................681 B. The Law......................................................................................................684 1. International Conventions ......................................................................684 2. United States Jurisdiction and Definitions .............................................687 VI. INTERNATIONAL COOPERATION .....................................................................690 A. Extradition and Universal Jurisdiction.......................................................691 B. Implementing the “Law of Nations” ..........................................................694 VII. CONCLUSION:SOVEREIGNTY AND GLOBAL FEDERALISM.............................699 I. INTRODUCTION The world has developed substantive norms of criminal law in many areas without commensurate enforcement mechanisms.1 Fledgling tribunals for enforcement of the Law of Armed Conflict and International Humanitarian Law hold out the promise of enforcement for crimes against humanity and its kin. The lack of any collective enforcement power, however, makes the promise relatively illusory. Even less promising is the possibility of enforcement for terrorism or human trafficking, which are wholly dependent on domestic legal systems.2 1 Professor Hart made the general observation that international law lacked what he called the “secondary rules of change and adjudication, which provide for legislature and courts.” H.L.A. HART,THE CONCEPT OF LAW 214 (2d ed. 1994). This observation could be transferred into the argument that norms without enforcement are not really law at all. See id. at 3-5. I have no interest in entering that debate in this paper; I want to describe norms that are recognized universally and expected to be enforced by someone but which have inadequate collective enforcement mechanisms. 2 Financial crimes are yet another area in which the elaboration of norms and enforcement are desperately needed as well: I propose a relatively cheap, effective solution to one of the world’s most pressing issues: an international body to police corruption. And we must have it now, not at some date into the future. It’s our money—and we want it back. Alexander Lebedev, Op-Ed, A World Corruption Police,N.Y.TIMES, Feb. 27, 2014, available at http://www.nytimes.com/2014/02/27/opinion/27iht-edlebedev27.html?_r=1 (Lebedev is described as a “businessman and former senior officer in the K.G.B.”). International Crime and Punishment 625 As the title of this article suggests, there is a gap in enforcement of international norms, and that gap is enormous: it provides a gigantic opening for organized crime. In many countries today, organized crime is more powerful than the government, and corruption is rampant. Criminal groups sell people, sell weapons to terrorists, sell weapons and expertise to abusive regimes, and hire or invest in the activities of pirates. While some countries and regional groups make unilateral inroads on transnational criminal action, it is unrealistic to expect much progress until there is an international police effort on all these fronts. It is toward the creation of such a global effort that this hopeful bit of prose is directed.3 I do not expect to see in my lifetime any serious international policing for protection for human safety, but eventually there must be a genuine international response to some basic aspects of human dignity. The gap in enforcement of basic standards provides an opening for organized crime to have a dominant role and for the abuse of humans in many areas, such as labor conditions and basic subsistence. The lack of positive enforcement is being addressed in part by informal enforcement in the form of indicators and ranking systems used for various purposes such as the making of major investment or diplomatic decisions, but this informal system carries its own weight of problems, including lack of transparency or enforcement.4 The principal sources of damage to human security and dignity are organized violence, loosely labeled war crimes, the related phenomenon of terrorism, slavery (human trafficking), and piracy, which is rapidly growing into cyberspace. A word about each will set the stage for what follows. Mass atrocities, formerly known as war crimes and now subsumed under the heading of International Humanitarian Law (IHL), continue to plague states with weak electoral systems or other accountability measures. As dictators are challenged or as ethnic hostilities break out, hundreds of thousands can be killed, and the various other forms of torture or predation multiply. The numbers and degree of suffering from forced labor and mass atrocities far exceed acts of “terrorism” against U.S. persons or facilities. Yet, the world reacted vociferously to terrorism following 9/11, and two lone misguided young men in Boston captured the voyeuristic media of the United States for months on end while dozens of deaths in other countries went virtually unnoticed. 3 Much of what is suggested in this article is treated elaborately in a collection of 48 essays edited by the widely acknowledged guru of international criminal law, a volume which appeared after his death in 2011. REALIZING UTOPIA:THE FUTURE OF INTERNATIONAL
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