FAIR TREATMENT IN TRANSNATIONAL AND INTERNATIONAL CRIMINAL LAW

• Citation: (2013) 25 SAcLJ 778
• Date: 01 December 2013
• Published date: 01 December 2013
• Author: CHEAH Wui Ling LLB (Hons), LLM (National University of Singapore), LLM (Harvard); Member of the Bar of New York State; Assistant Professor, Faculty of Law, National University of Singapore.

International Developments and National Relevance

This essay examines fair treatment developments in transnational and international criminal law at the international level, with the aim of analysing how national actors should approach these developments. It is important for national actors to remain aware of these international developments as they may be legally binding, and even when not so, they may be of important comparative value for national actors. This essay proposes how national actors can decide which international rules are legally binding through a careful analysis of the rule's juridical status, and how the national implementation of these binding international rules can be facilitated through the application of a principled margin of discretion. It then goes on to highlight how international developments that are non-binding in nature can be a comparative resource for national actors, and why it is important for national actors to engage with these developments and participate in the making of international law.

I. Introduction

1 In the past decade or so, the international community has assumed increasing responsibility over crimes commonly referred to as transnational and core international crimes. Examples of offences falling within the former category of transnational crimes are piracy, terrorism and drug trafficking, while those falling within the latter category of core international crimes include war crimes, crimes against humanity, genocide and aggression.1 The international community's involvement

in transnational crimes has remained largely “horizontal” in nature, with such efforts remaining dependent on state consent and domestic enforcement.2 In contrast, the international community has intervened in a more “vertical” manner when dealing with core international crimes, through the building of institutions and implementation of processes not necessarily dependent on the consent of states.3 Despite the international community's different approach to transnational and core international crimes, it has devoted much attention in both these areas to fair treatment issues of late, though more progress has been achieved in the latter through the evolving rules and practice of internationalised criminal courts.

2 The international community's development of fair treatment rules in transnational and international criminal law is admirable and deserving of much praise. However, despite the work done by the international community, the main burden of suppressing these crimes will continue to fall on national actors in the foreseeable future.4

Existing international arrangements are of limited capacity and are not

able to deal with these crimes in a comprehensive or long-term manner. National actors of territorial and extra-territorial states will need to play wide-ranging and sustained roles in the prosecution and prevention of transnational and core international crimes. Indeed, it may be more effective for national actors of the territorial state, where the crime occurred, to address the crime concerned. Many of these crimes have local causes, and their consequences are most experienced at the domestic level. Apart from territorial states, extraterritorial states may have an international legal duty or right to exercise jurisdiction over the crime concerned. These include states fortunate enough to experience political and social stability, such as Singapore. For example, an extraterritorial state may be called upon to exercise its jurisdictional

powers over one of these crimes as part of its treaty obligations.5 Many of these crimes are also subject to universal jurisdiction.6 In other words, any state otherwise unconnected to the crime has the right to exercise jurisdictional powers over the crime concerned. In these circumstances, when national actors take jurisdiction over a particular transnational or core international crime, it may be obligatory or advisable for them to act consistently with fair treatment rules developed by the international community. Furthermore, depending on its content, a particular fair treatment rule may be generally applicable to the criminal legal process.

3 This essay argues that it is important for national actors to remain aware of fair treatment developments at the international level, especially those rules that have become binding as a matter of international law, and that an exchange of ideas on fair treatment between national and international actors is valuable. It does not call on national actors to adopt each and every one of the fair treatment rules developed by the international community. This would not be legally appropriate or practically feasible. While these fair treatment rules may be desirable for various reasons, not all of them have attained the status of international law. Also, many of these rules are complex and detailed, particularly those developed by internationalised criminal courts. National actors may not have the resources and expertise required for their effective implementation, especially if they are working in post—conflict societies or societies at a lower stage of economic development. There is, however, a tendency to treat fair treatment rules developed by internationalised criminal courts as ultimate benchmarks of legitimacy.7

National efforts that do not wholly comply with these rules may be criticised by international lawyers and activists, well-meaning as the latter may be. Indeed, national actors do not only operate within the domestic sphere when dealing with such crimes, as they are members of a broader global community that has deemed these crimes to be worthy of international attention and concern.

4 How then should national actors relate to these international developments?8 With this in mind, this essay critically examines the international community's development of fair treatment rules in transnational and international criminal law, with the aim of assessing how national actors should relate to them. It first provides an overview of how these rules have evolved at the international level. It then examines the legal impact of these rules on national actors. Not all of these fair treatment rules have achieved the status of international law; rather, each individual rule should be subject to careful legal analysis before concluding that it is international law and legally binding on individual states.9 Even when a fair treatment rule is legally binding on states, national actors should have a limited but meaningful margin of discretion when interpreting the rule concerned. It should be noted that this essay will only attempt a general explanation of how such a margin of discretion could be structured. Its aim is to emphasise the value of such a margin and the need for its further development as a tool that facilitates and regulates the implementation of international law at the domestic level. It then proceeds to examine the national relevance of fair treatment rules that have not yet attained the status of international law. Though these rules may not be legally binding on individual states, they have significant comparative value and should be considered by national actors. More importantly, by engaging with these international developments, national actors will be able to contribute actively to the formation of international law.

II. The international community's evolving approach to fair treatment in transnational and international criminal law

5 For the ordinary person, the criminal process is one that brings with it far-reaching and serious consequences. Subjecting a person's conduct to the criminal process indicates that a serious harm has been committed. A conviction usually results in the deprivation of an accused person's liberty, may sometimes involve the taking of life itself, and subjects the individual to significant social stigma. Governing authorities throw their weight behind the criminal process and conviction, guaranteeing its reliability. Therefore, to maintain the legitimacy of the criminal process in the public's eye, it is important to treat the accused person with the respect due to all persons, and to ensure, as far as possible, the accuracy and reliability of convictions. The guarantee of fair treatment during the criminal process plays a significant role in achieving these aims.

6 Recognising the potential impact of the criminal process on the individual concerned, international law seeks to protect the individual through its recognition of specific human rights. The Universal Declaration of Human Rights (“UDHR”) affirms everyone's “right to life, liberty and security of person” and states that “no one shall be subjected to arbitrary arrest, detention or exile”.10 Individuals have the right to “a fair and public hearing by an independent and impartial tribunal”.11 Among other rights, an individual should have the guarantees “necessary for his defence” and the benefit of the presumption of innocence.12 Apart from protecting the accused person, the international community has also recognised the need to protect victims of crimes, especially those of serious crimes. In 2005, the United Nations General Assembly adopted a list of principles and guidelines calling for victims of gross violations of human rights law and serious violations of international humanitarian law to be given “equal and effective access to justice”, and provided with “adequate, effective, and prompt” reparations.13

7 It should be noted that the concept of fair treatment discussed in this essay overlaps with, but is not the same as, human rights. The concept of fair treatment is broader than that of human rights as it considers the interests of all individuals affected by the criminal legal

process, apart from those whose human rights are affected. Some fair treatment rules and practices may be based on human rights, but some may not. For example, treating the Prosecution fairly during the trial...