General Principles of Transnationalised Criminal Justice?&lt;br&gt;Exploratory Reflections

Marianne L Wade

doi:10.18352/ulr.248

Abstract

This article sets out to explore the premise of general principles in what is labelled transnationalised criminal justice (encompassing the substantive and procedural law as well as the institutions of transnational criminal law and European criminal law). Whilst there can be no denying that these are diverse and divergent areas of law in many ways, their fundamental common denominator of seeking to convict individuals whilst subjecting these to arrest, detention and deprivation of other rights across borders, is taken as a baseline around which certain general principles may gravitate. The current state of executive over-reach within transnationalised criminal justice structures is studied, particularly in relation to the European criminal justice context. This over-reach is explored utilising the theoretical framework of social contract theory. It is suggested that the transfer of investigative and prosecutorial powers to transnationalised contexts undertaken by the relevant executives without seeking to temper this assignment with mechanisms to secure the rights of individuals which counter-balance these, as required by the constitutional traditions of their country, can be regarded as in breach of the social contract. Using this thought experiment, this article provides a framework with which to identify the deficits of transnationalised criminal law. The way in which such deficits undermine the legitimacy of the institutions created by states to operate the mechanisms of transnationalised criminal justice as well as the fundamental values of their own constitutions is, however, demonstrated as concrete. The latter are identified as mechanisms for deducing the general principles of transnationalised criminal justice (albeit via difficult international negotiation). If the supranationalisation of criminal justice powers is not to be regarded as a tool undermining constitutional values and effectively allowing executives acting in an unbalanced manner a means by which to undermine the ‘social contract’ it is argued that such general principles must be established more strongly with legal force. Ultimately the ‘social contract’ lends (at least Western democratic) governments their legitimacy. This must also urgently be protected at the supranational level.

Highlights

The identification of general principles of ‘transnational criminal processes’ is not a simple task
Transnational criminal law is defined as follows: ‘crimes of international concern — the so-called treaty crimes’;1 ‘the treaty crimes excluded from the jurisdiction of the ICC.’[2]. As Boister explains in his seminal article: ‘The normative transnational element is distinct from the normative international element that underpins offences like genocide because the threat suppressed is not sufficiently serious to engage a sufficient consensus in international society to use ICL to suppress it.’[3]. He adds a commentary as to the nature of transnational criminal law: ‘It is an area of law where sovereignty is still a dominant value but somewhat contradictorily, interstate cooperation is often extensive beyond the reach of the public eye.’[4]
As Boister phrases it ‘we might conclude that very shocking or state-implicated harmful conduct which threatens general human interests has to be suppressed by humanity acting as a whole

Summary

Introduction

The identification of general principles of ‘transnational criminal processes’ is not a simple task. The fact is that European and transnational criminal law expose a suspect to a criminal justice process which is different in nature to a domestic one This point is by no means well established as it is still domestic criminal justice authorities and bodies which play the central roles in such processes. An investigation will potentially feature the bundled powers of many states possibly aided by supranationalised institutions drawing upon intelligence from all their constituent members (such as Interpol, or within the EU context, Europol) Such investigations may have exceptional consequences (e.g. an Interpol red flag) or they may lead to decisions being made by criminal justice officials unfamiliar with the expectations of that suspect. Could perhaps a discussion of general principles be justified?

The potential for general principles

45. Council of the European Union Inter-institutional File

Common traits: application to an individual