International Tribunals for Transnational Crimes: Towards a Transnational Criminal Court?

The negotiation of the Rome Statute of the International Criminal Court was initiated not by states eager to remove impunity for core international crimes such as genocide or crimes against humanity, but by small states that wanted an international tribunal to try drug trafficking offences. Their motivations were complex. The system of indirect control over transnational crimes—drug trafficking, terrorism, corruption and so forth—is heavily skewed towards the interests of large ‘consumer’ states. It supports the harmonized criminalization of these offences in national laws around the world, and the articulation of national criminal justice systems through increased international cooperation in policing, legal assistance and ultimately extradition of offenders. But small developing states resent the erosion of sovereignty involved in the extradition of offenders to states like the US, the EU, and Australia. They also fear the political consequences of such cooperation for their internal sovereignty as they live cheek by jowl with the criminals. Prosecution at home on the basis of the obligation aut dedere aut judicare is untenable for the same reasons. In the negotiation of the Rome Statute the argument that the ICC should have jurisdiction over the so-called treaty crimes was lost. This paper briefly explores the motivations of small states and recounts the arguments in support of rejection of the ICC’s jurisdiction over transnational crimes. Its main thrust however, is an exploration of the possibilities presented for prosecution of transnational crimes outside of national jurisdictions by the various alternatives to strictly international and strictly national tribunals that have been trialled or proposed over the years. These include hybrid national-international courts like the Special Court of Sierra Leone, ad hoc measures like the Lockerbie Trial in the Netherlands, the tentative steps towards a regional solution in the Caribbean, the recent proposal examined by the UN Secretary General of a regional court to try pirates, and the first International Criminal Court, developed in 1937 to terrorism offences but never used. The paper tentatively concludes that while establishing an international or regional transnational criminal court will present problems, it may also present a solution for those jurisdictions seeking an alternative to extradition or prosecution.