Overview

Transnational criminal law

International and Transnational Criminal Law

Transnational crimes transcend international boundaries. Under article 3(2) of the United Nations Convention against Transnational Organised Crime 2000, an offence is transnational if it is committed in:

  • More than one state,
  • One state, but a substantial part of the preparation takes place in another state,
  • One state, but involves an organised criminal group that engages in criminal activities in more than one state, or
  • One state, but has substantial effects in another state.

Transnational crimes include organised crimes, drug trafficking, human trafficking, corruption, terrorism, terrorism financing, and piracy.

 

Suppression conventions

International cooperation for the suppression of such crimes is in the best interest of multiple states. Accordingly, states establish multilateral treaties to help define, investigate, and prosecute transnational crimes. These international “suppression conventions” have become a key mechanism for dealing with transnational crime. They require state parties to enact domestic criminal provisions and provide mechanisms for international co-operation.

This body of law, generated internationally and applied domestically, is called transnational criminal law.

 

Transnational criminal law in Australia

Australia is party to several suppression conventions and has enacted the relevant provisions into domestic legislation. Accordingly, many transnational crimes are criminalised under Australian law, including cybercrime, foreign bribery, terrorism financing, and money laundering.

 

International criminal law

International criminal law can refer to different bodies of law, usually either:

  1. International cooperation in domestic or transnational criminal matters, or
  2. The international law establishing individual criminal responsibility and the prosecution of such individuals before international mechanisms.

 

International cooperation

This first category generally refers to the law and mechanisms between states which facilitate the effective investigation and prosecution of crimes across international borders. It encompasses laws governing jurisdictional disputes, extradition and mutual legal assistance, and transfer of prisoner arrangements.

 

International criminal law stricto sensu

The second category includes war crimes, crimes against humanity, genocide, and the crime of aggression. These crimes are also referred to as international criminal law stricto sensu. They are considered the gravest crimes of concern to the international community, and are prohibited because they threaten international peace and security and fundamental human rights.

 

International criminal law in Australia

Australia has extensive legislative regimes governing our international criminal cooperation relationships, including the Extradition Act 1988, Mutual Assistance in Criminal Matters Act 1987 and the International Transfer of Prisoners Act 1997.

Australia has also criminalised war crimes, crimes against humanity, genocide, and the crime of aggression in the Criminal Code 1995 (Cth).

 

Frequently Asked Questions

Is there an international criminal court?

Yes. Initially, international crimes were prosecuted through ad hoc international tribunals established when needed for specific conflicts. In 2002, the International Criminal Court (ICC) was officially established by 60 states. The ICC is a permanent court which investigates and prosecutes individuals charged with international crimes around the world.

Does Australia prosecute transnational and international crimes domestically?

Yes. Australia is signatory to many of the treaties which criminalise, or require states to criminalise, transitional and international offences. After Australia has signed a treaty, it ratifies it and enacts the provisions into domestic law.

For example, if an individual in Australia was prosecuted for war crimes, while that offence originated from the Rome Statute of the International Criminal Court, the individual will be charged under Division 268 of the Criminal Code Act 1995 (Cth).

How is transnational criminal law enforced?

Transnational criminal law relies on indirect methods of criminalisation. Enforcement is decentralised and individual states are granted flexibility in their enactment of the convention provisions. However, as transnational crimes become increasingly prevalent with the rise of globalisation, immigration and communications technology, international cooperation in respect of these crimes will no doubt continue to develop.

What is mutual legal assistance?

Mutual legal assistance is the formal process of sharing evidence about criminal investigations or prosecutions between countries, usually based on Mutual Legal Assistance Treaties (MLATs).

For example, If Australia was seeking to prosecute an individual for drug trafficking between Jakarta and Sydney, Australia might make a mutual legal assistance request to Indonesia, asking for help interviewing the individual’s business partner in Jakarta. In Australia, the Attorney General makes such requests to foreign countries on behalf of law enforcement agencies, the prosecution, and the defence.

How can we help you?

We provide expert advice and representation in complex transnational and international criminal investigations and prosecutions.

Contact us if you require assistance.

Contact an International & Transnational Crime Lawyer

Articles

International and Transnational Criminal Law Articles