International crimes as asymmetrical security threats

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The rise of a new globalized security environment in the post Cold War world has been marked by a transformation from the traditional spectrum of symmetrical security threats with their conventional alliances such as NATO and the Warsaw Pact to a situation viewed by some analysts as representing an emerging form of globalization of non-state actor warfare — or asymmetrical security threats.

The asymmetrical security threat is transnational in nature and very dynamic, unpredictable, diverse, fluid, networked and constantly evolving (Jenkins, 2004).

Informal violence could be identified as international crime and modern transportation, communication, information and weapon technology have all been employed effectively to support the operations of criminals. As a kind of asymmetrical security threat, international crimes consist of four special categories in term of their characteristics and development.

 The first category is general international crimes, which have evolved over the years essentially through customary laws and conventions in international law.

This category of crimes consist of serious offenses such as unlawful use of weapons, aircraft hijacking, drug trafficking, sea piracy, terrorism, unlawful use of mail, interference with submarine cables, falsification and counterfeiting and taking civilian hostages.

Those crimes have been stipulated by international instruments based on the existence of several characteristics: The explicit recognition of proscribed conduct as constituting an international crime; the implicit recognition of the penal nature of the act by establishing a duty to prohibit, prevent, prosecute and punish; the criminalization of the proscribed conduct; the duty to prosecute, punish, extradite and cooperate in prosecution and punishment; the establishment of a criminal jurisdiction basis and the reference to the establishment of an international criminal court or tribunal and the elimination of the defense of superior orders (Bassiouni, 1986).

The adoption of the UN Convention against Transnational Organized Crimes and the Protocols thereto (Palermo Convention) by UN General Assembly on Nov. 15, 2000, followed by the signing of the convention in Palermo, Sicily in December 2000, marked the presence of the second category of international crimes; namely Transnational Organized Crimes (TOC).

The convention represents a major step forward in the fight against TOC and signifies the recognition by member states of the seriousness of the problems posed by it, as well as the need to foster and enhance close international cooperation in order to tackle those problems, including the creation of domestic criminal offenses (participation in an organized criminal group, serious crimes, money laundering, corruption and obstruction of justice).

 The three protocols that are referred to jointly as the Palermo Convention of TOC are the Protocol of Trafficking in Persons, especially women and children; the Protocol of Smuggling Migrants by Land, Sea and Air; and the Protocol of Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components and Ammunition.

Since the first and second category of crimes are arranged by the laws of states, based on the principle of an indirect enforcement method by the criminal justice system of the member states, the third category of international crimes, namely cosmopolitan crimes stipulated by the law above nations or the law for states and the principle of the direct enforcement method by an international criminal court or tribunal, could be applied when the state concerned is unwilling or unable to bring to justice the perpetrators of the crimes of genocide, crimes against humanity, war crimes and crimes of aggression.

The establishment of Rome Statute of International Criminal Court (ICC) 1998, the International Criminal Tribunal for the Former Yugoslavia (ICTY) 1993 and Rwanda (ICTR) 1994 were reflections of this international law regime.

The fourth category is international crimes that rise to the level of Jus Cogens or preemptory norms, which is accepted by international community of states as a norm from which no derogation is ever permitted or violated. It is generally accepted that Jus Cogens includes the prohibition of genocide, maritime piracy, slavery, torture, wars of aggression and crimes against humanity.

For this category, the principle of universal jurisdiction could be upheld. Under this principle any state is empowered to bring to trial persons accused of international crimes, regardless of the place of commission of the crime, or the nationality of the author or of the victim (Cassese, 2008).

The asymmetrical security threat of international crimes is no longer a mere domestic security issue. Therefore countries must act in concert to fight those global threats seriously.

The adoption of new frameworks for extradition, mutual legal assistance, transfer of sentenced persons, transfer of legal proceedings, joint investigations, law enforcement cooperation, the promotion of training and technical assistance for building or upgrading the necessary capacity of national authorities and information exchange is absolutely required.

The writer is professor of criminal law at Diponegoro University, Semarang.