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118 Cambridge Legal Studies – HSC

Defining internat ional crime

Historically, crime has been an issue that states

have dealt with inside their own borders. Societies

within individual nation states have deter mined

which acts are punishable as crimes, and how

those crimes are dealt with and punished in their

local criminal jurisdiction. As a result, criminal

laws have traditionally reflected the dom i nant

social and cultural values of each country, varying

from state to state. This concept was discussed in

Chapter 1 in the context of defining crime.

Keeping criminal laws defined and contained

within national boundaries is for most states a

crucial issue of state sovereignty. Many coun tries

view the criminal law as a critical area for indivi-

dual states alone to decide, without any inter-

ference from outside influence. The legal systems

and constitutions of many countries often prohibit

any encroachment into state jurisdiction and laws.

But over time societies have evolved, with

increased co-operation between states and

changes in the way that states see their role in the

international community. Together with such co-

operation has been a growing recognition that

certain actions committed within sovereign state

jurisdictions may be so extreme, and so univer-

sally condemned, as to constitute a crime that

ought to be universally enforced – a crime against

the international community.

In more recent years, accompanying the

advent of globalisation together with increased

inter national travel and advances in technology,

opportunities for crimes traditionally committed

locally have increased and will often cross national

borders. Such transnational crimes have become

increasingly problematic within domestic borders,

where the crimes might originate or where their

effects might be felt.

‘International crime’ is a broad term that

could cover any such crime with international

origin or consequences. There are many types

of international crimes, and many international

crimes have existed since before states themselves

were even formed. But until only recently most

such crimes have not been considered outside the

context of domestic law.

International crime poses considerable chal-

lenges legally, financially and socially. Increased

co-operation between nation states is funda men-

tal if aspects of international crimes are to be

addressed and justice to be achieved. This chapter

will explore some of the issues related to inter-

national crime, describe a range of measures that

the international community has implemented to

combat international crime, and evaluate the

effectiveness of these measures.

state sovereignty the authority of an independent state to govern itself (e.g. to make and apply laws; impose and collect taxes; make war and peace; or form treaties with foreign states)

crime against the international community a most serious crime of concern to the international community as a whole, and recognised as punishable by the international community

transnational crime crimes that occur across international borders, either in origin or effect

international crime a broad term covering any crime punishable by a state with international origin or consequences, or a crime recognised as punishable by the international community

Figure 6.1 International crime can take many forms.

Chapter 6: International cr ime 119

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Categories of internat ional crime

International crimes need to be distinguished from

crimes that are mere a violation of domestic juris-

diction with some international element. For

example, an Australian citizen travelling in a for-

eign country who steals a car or assaults another

person will be criminally liable in accordance with

that country’s own laws – and liable to any appli-

cable sentence that country imposes. Likewise, a

foreign citizen in Australia will be subject to

Australia’s criminal laws. This is simply a case of

domestic rather than international crime.

Similarly, there are instances where Australian

legislators have deemed it necessary to crimi nalise

acts committed by Australians travelling abroad -

one example of such a law is under Part IIIA of

the Crimes Act 1914 (Cth) on Child Sex Tourism,

which makes it an offence for an Australian citizen

or permanent resident to engage in sexual activity

with a child under 16 years old while overseas.

Even though the criminal act occurs in another

jurisdiction, the offender is still liable under

Australian domestic law, or under foreign criminal

law if the act is also a crime in that jurisdiction.

International crimes, however, differ in that

they involve some crossing of international

bor ders in the commission or planning of the

crime, or in some way involve a breach of the

criminal standards imposed by the international

community. International crime can be broadly

divided into two main categories:

crimes against the international community

transnational crimes.

Crimes against the international communityCrimes against the international community are

an entirely different class of crimes to domestic

crimes. Unlike domestic or transnational crimes,

crimes against the international community are a

collection of offences that are recognised by the

international community as being of universal

concern. They include some of the most extreme

crimes possible – crimes that are deemed so

serious that they are condemned by the whole

inter national community and may be punishable

internationally.

There is no fully agreed list of such crimes. Many

countries will disagree about the specific aspects of

the offence, or about the inclusion of certain

crimes, but they almost always include certain

crimes such as genocide, war crimes, piracy (at

sea), hijacking of aircraft and slave trading.

The prosecution of crimes against the inter-

national community can be controversial. Such

crimes may be committed in the context of a

brutal war. They may be highly politically moti-

vated, or they may (in some contexts) have even

been ordered or committed by the state itself.

States can sometimes be unwilling or unable to

prose cute individuals for these crimes, as in some

instances those responsible may still be in posi-

tions of power. In other instances, the offenders

may have fled to a different jurisdiction to attempt

to escape prosecution.

The importance of all states condemning

crimes against the international community is that

the criminals may be unable to escape prosecution

simply because they are still in power or have fled

outside the jurisdiction. Other states condemning

the action may claim a right to prosecute the

offender under a claim of universal jurisdiction,

where another state claims a right to prosecute a

person based on the common international belief

that the alleged crime is so serious that normal

laws of criminal jurisdiction do not apply. Some

states, such as Belgium, Spain and the United

Kingdom may be more likely to assert a claim of

universal jurisdiction over such serious criminals

– these cases are generally very high-profile and

politically controversial.

Jurisdiction over universally condemned crimes

represents a fundamental change to the tradi-

tional view of state sovereignty – where criminal

genocide acts which have the intention of destroying all or part of a national, ethnic, racial or religious group

universal jurisdiction where a state claims a rare right to prosecute a person for actions committed in another state, based on the common international opinion that the alleged crime is so serious that normal laws of criminal jurisdiction do not apply


jurisdiction over certain crimes and individuals is

forfeited on the basis that the acts are so extreme

and universally condemned that they can no

longer be permitted under the laws of any state.

International Criminal Court (ICC)Perhaps the most important development in the

law of crimes against the international community

was the establishment of the International

Criminal Court (ICC) in 2002 in The Hague,

Nether lands. The court’s establishment followed

years of international negotiations and deliber-

ations, with the eventual signing of a treaty at a

1968 UN conference in Rome. The treaty became

known as the Rome Statute of the International

Criminal Court, or ‘Rome Statute’. The treaty

came into force in July 2002, when the requisite

number of states (60) had formally ratified it. As of

2010, there were over 110 state parties to the ICC.

The ICC was established by the international

community as a permanent court and a separate

international entity. It is independent from the

United Nations or from any nation state. It consists

of 18 judges who each come from different signa-

tory countries, who operate in pre-trial, trial and

appeals divisions. The Rome Statute gives the

ICC the jurisdiction over three broad categories

of international crime: genocide, crimes against

humanity and war crimes. These are discussed

in more detail in the following pages. The ICC also

has jurisdiction to prosecute crimes of aggression,

but member states have not yet agreed on its defi-

nition (this agreement may have occurred since

the time of publication).

The ICC is a court of last resort. It is intended to

complement rather than exclude existing national

criminal justice systems – it can only prosecute a

case when state courts cannot or are unwilling to

do so. This means that the main responsibility for

such crimes, for investigation and prosecuting, is

still retained by the member states. The ICC can

only exercise jurisdiction where:

the accused is a national of a member state of

the treaty

the alleged crime occurred in the territory of a

member state, or

the situation is referred to the ICC by the UN

Security Council.

Where the ICC convicts an individual, the court

can impose a sentence of imprisonment up to life

imprisonment (but not the death penalty), which

will be served in a state prison designated by the

court. In addition to imprisonment the court can

order a fine or forfeiture of assets.

REVIEW 6.1

Read the Preamble to the Rome Statute of the

International Criminal Court in the Legal Info

box and answer the following questions.

1 Identify some of the historical incidents

the Preamble refers to in its opening

paragraphs.

2 Describe the nature of crimes that the

Rome Statute aims to include.

3 Describe the main duty that the Rome

Statute imposes on member states.

4 Identify the Rome Statute’s position on

international war.

5 Explain how the Rome Statute interacts

with state jurisdictions.

International Criminal Court (ICC) an independent international court established by the Rome Statute in July 2002 to prosecute and try international crimes of the most serious nature

Rome Statute the Rome Statute of the International Criminal Court, an international treaty that establishes the International Criminal Court

crimes against humanity acts of a sanctioned widespread or systematic attack against any civilian population

war crimes actions carried out during a time of war that violate accepted international rules of war

Figure 6.2 The International Criminal Court in The Hague, Netherlands


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The States Parties to this Statute,

Conscious that all peoples are united by common

bonds, their cultures pieced together in a shared

heritage, and concerned that this delicate mosaic

may be shattered at any time,

Mindful that during this century millions of children,

women and men have been victims of unimaginable

atrocities that deeply shock the conscience of

humanity,

Recognizing that such grave crimes threaten the

peace, security and well-being of the world,

Affirming that the most serious crimes of concern

to the international community as a whole must not

go unpunished and that their effective prosecution

must be ensured by taking measures at the national

level and by enhancing international cooperation,

Determined to put an end to impunity for the

perpetrators of these crimes and thus to contribute

to the prevention of such crimes,

Recalling that it is the duty of every State to exercise

its criminal jurisdiction over those responsible for

international crimes,

Reaffirming the Purposes and Principles of the

Charter of the United Nations, and in particular that

all States shall refrain from the threat or use of force

against the territorial integrity or political indepen-

dence of any State, or in any other manner incon-

sistent with the Purposes of the United Nations,

Emphasizing in this connection that nothing in this

Statute shall be taken as authorizing any State Party

to intervene in an armed conflict or in the internal

affairs of any State,

Determined to these ends and for the sake of

present and future generations, to establish an inde-

pendent permanent International Criminal Court in

relationship with the United Nations system, with

jurisdiction over the most serious crimes of concern

to the international community as a whole,

Emphasizing that the International Criminal

Court established under this Statute shall be

complementary to national criminal jurisdictions,

Resolved to guarantee lasting respect for and the

enforcement of international justice,

Have agreed as follows…

Preamble to the Rome Statute of the International Criminal Court

GenocideArticle 6 of the Rome Statute gives the ICC crimi-

nal jurisdiction over acts of genocide that occurred

since July 2002. Genocide includes various brutal

acts intended to destroy all or part of a national,

ethnic, racial or religious group. The Rome Statute

defines the crime of genocide as including:

killing members of the group

causing serious bodily or mental harm to mem-

bers of the group

deliberately inflicting conditions of life cal-

culated to bring about the group’s physical

destruction

imposing measures to prevent births within the

group, or

forcibly transferring children of the group to

another group.

Genocide has long been condemned by the inter-

national community as a crime so despicable and

unjustifiable that the international community

has a responsibility to punish it. Acts of genocide

were criminalised in one of the first ever treaties

established by the United Nations – the Convention

on the Prevention and Punishment of the Crime of

Genocide, first signed in 1948.

Genocide is extremely difficult to prove and

cases will involve enormous amounts of documen-

tary evidence, forensic evidence, review of killings

and military orders, testimonies, expert opinions

and others. It can involve accusations of killings of

countless people, from hundreds to millions. The

court will need to prove beyond a reasonable

doubt an intention to destroy all or part of the

particular group.


There are numerous tragic examples of geno-

cide throughout history. However, claims of geno-

cide are often extremely controversial and in some

cases vehemently opposed by the groups accused

of perpetrating the crime. The most univer sally

recognised genocide is the killing of six million

European Jews in the Second World War, under a

program of deliberate extermination that was

planned and executed by the National Socialist

German Workers Party (also known as NSDAP or

the Nazi Party), and led by Adolf Hitler. Scholars

suggest that under the widest definition of geno-

cide, including deliberate extermination of Slavs,

Romani, homosexuals, the mentally ill, political

opponents and Jehovah’s Witnesses, the death toll

was as high as 17 million.

Prior to the establishment of the ICC in 2002,

genocide, as well as war crimes and crimes against

humanity, were often dealt with by the inter na-

tional community in specific ad hoc tribunals set

up to prosecute particular incidents, for example

the International Criminal Tribunal for the Former

Yugoslavia (ICTY) and International Criminal

Tribunal for Rwanda (ICTR). Since its creation,

the ICC has not yet succeeded in convicting any

person of genocide.

Crimes against humanityCrimes against humanity are a broad range of

crimes referring to acts committed as part of a

‘wide spread or systematic attack’ against any civi-

lian population. Included under Article 7 of the

Rome Statute, the scope of crimes against human-

ity is significantly broader than genocide – see the

definition in the Legal Info box on the right.

Unlike genocide, which requires proof of ‘inten-

tion to destroy’ all or part of a group (national,

ethnic, racial or religious), crimes against human-

ity can occur against any civilian population, so

long as the acts are widespread or systematic. The

Rome Statute requires multiple commission of any

of the listed acts, which needs to be under a state

or organisational policy to commit such acts.

In effect, genocide and crimes against humanity

can involve the same or similar devastating acts.

Under the current definition, crimes against

Nuremburg trials a series of military tribunals that took place from 1945 to 1946; they were held by the victorious allied powers in Nuremburg, Germany after the Second World War; the trials are famous for their prosecution of prominent leaders of defeated Nazi Germany for crimes against humanity and war crimes

Figure 6.3 In 1994, about 500 000 of Rwanda’s Tutsis and Hutu political moderates were massacred by the Hutu-dominated government over the space of 100 days. The church of Nyamata, pictured above, ceased to be a church when 10 000 people were murdered there.

Figure 6.4 During World War II the Nazi party committed acts of genocide on members of the Jewish community and other groups.


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humanity may be easier to prosecute

by the ICC because of the broader defi-

nition and issues of proof. The fact that

the term ‘genocide’ holds such enor-

mous political weight also means that

political agreement between states to

prosecute it may be difficult to obtain.

While there might be important

symbolic differences between calling

something ‘genocide’ versus a ‘crime

against humanity’, it does not lessen the

severity of the crime. Initially, genocide

was considered a type of crime against

humanity. In the founding Nuremburg

trials following the Second World War,

the allied powers prosecuted promi-

nent leaders of Nazi Germany for

crimes against the international com-

munity. The found ing documents of

the tribunals charged the leaders for

crimes against humanity, as well as war

crimes. Although the crimes against

humanity that were charged included

reference to genocide, genocide was

only later separated and individually

defined by the 1948 Convention on the

Prevention and Punishment of the Crime

of Genocide.

Formerly, crimes against humanity

were considered to have been com-

mitted within the context of war,

although the Genocide Conventions

con tain no such restrictions. This was

because the crimes were generally

considered in addition to war crimes

arising from the same historical inci-

dents. However, the Appeals Chamber

of the International Criminal Tribunal

for the Former Yugoslavia (ICTY) has

since clarified that crimes against

human ity do not have to be committed

within the context of an armed conflict.

The current ICC definition contains no

restriction to a war context.

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For the purpose of this Statute, ‘crime against

humanity’ means any of the following acts when

committed as part of a widespread or systematic

attack directed against any civilian population, with

knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of

physical liberty in violation of fundamental rules of

international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution,

forced pregnancy, enforced sterilization, or any

other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or

collectivity on political, racial, national, ethnic,

cultural, religious, gender as defined in paragraph 3,

or other grounds that are universally recognized as

impermissible under international law, in connection

with any act referred to in this paragraph or any

crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character

intentionally causing great suffering, or serious

injury to body or to mental or physical health.

Crimes against humanity – Article 7 of the Rome Statute

REVIEW 6.2

Consider the Rome Statute’s definition

of crimes against humanity below and

answer the following questions:

1 Identify some of the differences

between the crime of genocide

and crimes against humanity.

Which additional acts are explicitly

included?

2 Explain some of the reasons why

crimes against humanity might be

easier to prosecute than the crime

of genocide.

3 Article 7(2) of the Rome Statute

contains extended definitions

of the acts outlined above. You

can find the Rome Statute on the

International Criminal Court’s

website: www.icc-cpi.int. Looking

at Article 7(2), describe what is

meant by the terms ‘extermination’,

‘torture’ and ‘forced pregnancy’.


War crimesIn its broadest definition, a war crime is an action

carried out during the conduct of a war that violates

accepted international rules of war. There are a

number of international agreements that outline

actions in war constituting criminal violation

– the most well known of which is the Geneva

Conventions. The Geneva Conventions date back

as far as 1864 and constitute a series of treaties

and protocols to the treaties that set standards

for humanitarian treatment of the victims of war,

such as civilians, the sick and wounded, prisoners

of war and medical or religious personnel.

Article 8 of the Rome Statute also provides an

extensive list of activities that can constitute war

crimes. The actions must have taken place during

an armed conflict, either international or domestic,

and in particular the ICC has jurisdiction where the

acts are part of a plan or policy, or as part of a

large-scale commission of war crimes.

The Rome Statute includes as war crimes any

‘grave breaches’ of the Geneva Conventions, as

well as a long list of serious violations of the laws

of international armed conflict. It is universally

understood that during the hostilities of armed

conflict there is a need to protect innocent civi-

lians and their communities from any violence

not justified by military or civilian necessity.

For example, war crimes listed under the Rome

Statute include:

torture or inhuman treatment, including bio-

logical experiments

willful killing or willfully causing great suffering

or serious injury

extensive and militarily unjustified destruction

or appropriation of property

intentionally directing attacks at civilian popu-

lations or objects

intentionally directing attacks at humanitarian

personnel or equipment.

Geneva Conventions four treaties and three additional protocols that set the standards in international law for the humane treatment of the victims of war

case

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On 14 July 2008, prosecutors at the International

Criminal Court (ICC), filed a number of charges

against Sudan’s President Omar al-Bashir over

a series of on-going atrocities in Sudan. The

situation had received large-scale international

attention and intensive campaigning by political

leaders, human rights groups and high profile

celebrities.

The charges included 10 charges of war crimes,

three of genocide, five of crimes against humanity

and two of murder. Prosecutors claimed that al-

Bashir ‘masterminded and implemented a plan to

destroy in substantial part’ three tribal groups in

Darfur because of their ethnicity.

On 4 March 2009, the ICC issued a warrant

for President al-Bashir’s arrest for war crimes,

intention ally directing attacks against a civilian

population and pillaging, and for crimes against

humanity, including murder, extermination,

forcible transfer, torture, and rape. The charge of

genocide had not been pursued. This was the first

arrest warrant issued by the ICC against a sitting

head of state.

Prosecution of Sudanese President Omar al-Bashir

Figure 6.5 Sudanese President Omar al-Bashir


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RESEARCH 6.1

Visit the site of the International Criminal

Court at www.icc-cpi.int.

1 Research Article 8 of the Rome Statute and

identify a list of activities considered to be

war crimes.

2 Research the circumstances that led to

the issuing of the arrest warrant for the

Sudanese President Omar al-Bashir and

identify any recent developments in the case.

Transnational crimesTransnational crimes are crimes that take place

across international borders. Unlike crimes

against the international community, which are

a class of extremely serious crimes punishable

internationally, transnational crimes are similar

to domestic crimes, such as fraud, hacking or

drug trafficking, but involve movement across

international borders as an element of the criminal

act. Transnational crimes may originate in one

country but be completed in another, or may be

committed in one country but the result or injury

may occur in another.

Some transnational crimes have been around

for centuries, whereas others have been made pos-

sible by the development of modern technologies.

Due especially to the rise of rapid international

tele com munications and international travel, local

authorities and policy makers increasingly have

to confront offences and offenders whose origins

are outside their jurisdiction. The move to a global

economy as well as increased volume and diversity

of migration has also led to more transnational

opportunities for crime.

Some of the main types of transnational crimes

include:

human trafficking and people smuggling

across borders

international fraud and white collar crime – for

example, tax evasion or money laundering

transnational internet crimes – including data

theft, internet fraud, copyright infringements or

spam networks

international terrorism – including cyber-

terrorism such as disruption of infrastructure

including electrical systems or computer

networks

creation and trafficking of child pornography,

or transnational trade in illegal substances,

inclu ding international air, shipping and postal

networks.

It is impossible to itemise all forms of trans-

national crime as there may be a number of dif-

ferent crimes and parties involved and various

Figure 6.6 Acts of physical and mental abuse committed by US military personnel in 2004 at Abu Ghraib prison, Iraq, were claimed to constitute war crimes and crimes against humanity. Acts included torture, rape and homicide.

human trafficking the illegal movement of people across borders by force, coercion or deceptive means


methods employed to commit the crime. Some

crimes may cross many borders – for example,

terrorism may be planned in one country, training

can occur in another, funds or materials sourced

in another country, while the act itself is carried

out in the target country. Organised crime rings

can have operations across many countries and

various elements of the crimes may take place at

many different locations.

Some of the causes of transnational crimes

might include:

differences in socioeconomic conditions

between countries, for example human traf-

ficking or even internet fraud originating in less

advantaged countries

the desire for prohibited goods or

services, where suppliers are based

in one country and consumers in

another

differences in political or ideo logi-

cal viewpoints, for example, inter-

national terrorism or inter national

hacking for political or ideological

reasons

hope that the transnational element

will prevent detection, for example,

international money laundering or

tax evasion

opportunistic desire for power or financial

gain.

Transnational crimes will usually be prosecuted

under the law of one or another country’s domestic

jurisdiction. For many crimes, the elements of the

crime will not be complete until the border has

been crossed, and so the target country will often

be the enforcer, through local legislation and law

enforcement in the target country.

The nature of transnational crime can make

prosecution very difficult. For example, a person

in Nigeria who sends bulk spam or fraudulent

emails to Australian addresses will be very difficult

for Australian law enforcement authorities to track

down or prosecute. Similarly, the creation and

dissemination of child pornography throughout the

world is a major concern – authorities in Australia

and around the world find it difficult to break

through the anonymity of child pornography rings

that operate throughout many different countries.

Due to the difficulties in trans-border detection

and enforcement of criminal laws, many such

crimes are now underpinned by international co-

operation agreements between affected countries.

These will usually involve a pair or group of

countries affected in some way by the trans-border

crime. Some of the methods used to enforce these

laws will be discussed below.

REVIEW 6.3

1 Explain how transnational

crimes differ from ordinary

domestic crimes.

2 Identify some of the types

of transnational crime.

3 Assess some of the causes

of transnational crimes and

the difficulties in combating

them.

Deal ing with internat ional crime

Dealing effectively with international crime

requires a combined approach between domestic

and international measures. The methods used to

deal with crimes against the international com-

munity and transnational crimes are considered

separately below.

Domestic measuresDomestic responses to international crime are

limited by jurisdiction. Australian law enforcement

cannot operate in a foreign country, Australian

courts do not have jurisdiction over crimes

committed under foreign laws and Australian

parliaments cannot legislate on the laws of other

countries. As a result, the effectiveness of the

Australian legal system to respond is inhibited

without co-operation from foreign countries.

There are specific circumstances where excep-

tions may be possible, for example where express

permission has been granted for the presence of

Australian law enforcement by the host country


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(e.g. assisting in crisis relief efforts), where

parliament legislates on actions involving Austra-

lian residents abroad (e.g. child sex tourism laws),

or where a court claims rare jurisdiction under a

rule of international law (e.g. universal juris dic-

tion). However, many other important actions

have been taken in Australia to combat interna-

tional crime and these are considered below.

Crimes against the international communityThe most significant recent development in

Australia for dealing with crimes against the

inter national community was the signing and

ratification of the Rome Statute. Australia was one

of the first signatories of the Rome Statute, signing

on 9 December 1998. Australia ratified the statute

on 1 July 2002, which was the date the statute

came into force internationally.

Prior to the introduction of the Rome Statute,

Australia had legislated to criminalise a number of

recognised crimes against the international com-

munity. For example, the War Crimes Act 1945

(Cth) and in particular the Geneva Conventions Act

1957 (Cth), which outlawed the recognised war

crimes listed in the Geneva Conventions. Coinciding

with Australia’s ratification of the Rome Statue,

the federal government passed the International

Crimi nal Court Act 2002 (Cth) and the International

Criminal Court (Consequential Amendments) Act

2002 (Cth), to ensure that Australia’s domestic

laws would comply with the statute. In addition

to pro ce dural amendments, the legislation intro-

duced a new section to Commonwealth Criminal

Code, Chapter 8 – Offences against Humanity and

Related Offences. The new section created domestic

offences in Australia for all the crimes listed in the

Rome Statute. It also incorporated some of the

existing offences, such as many of the previous

war crimes listed under the Geneva Conventions

Act 1957 (Cth).

As a consequence, any crime against the inter-

national community outlawed by the Rome Statute

is also criminalised within Australia. The ICC’s role

as a court of last resort was discussed earlier in

this chapter. The ICC is intended to complement

rather than exclude existing national criminal

justice systems and it can only prosecute a case

when state courts cannot or are unwilling to do

so. Australia has primary jurisdiction to investigate

and prosecute such crimes in Australian territory

or involving Australian citizens.

Australia also has a role to play as a state party

to the ICC and actively participates in discussions

among the state parties and in administration of

the court. At the time of publication, there have

not yet been any Australian judges appointed to

the court. Under the Australian legislation, the

Commonwealth Attorney-General must report

annually on the operations of the ICC, and on any

impact to the Australian legal system. According to

the report of the Attorney-General’s Department

for 2008–09, there have so far been no Australian

prosecutions for crimes under the Act, and the

ICC has had ‘no discernable impact’ on Australia’s

legal system.

Transnational crimeThe Australian Government, like many govern-

ments around the world, has moved in recent

years to combat the rise of transnational crimes.

The fol lowing are some of the measures in place

to monitor and respond to issues of transnational

crime.

AUSTRALIAN FEDERAL POLICE (AFP)

The Australian Federal Police (AFP) was estab-

lished under the Australian Federal Police Act 1979

(Cth) to enforce Commonwealth criminal law

and to protect Australia’s interests from crime in

Australia and overseas. It works closely with a

range of law enforcement bodies at state, territory,

Commonwealth and international levels.

The role of the AFP has grown considerably

in recent years with the growth in transnational

crime. In addition to its many domestic duties, the

AFP is engaged in various international activities

in the region and worldwide. This includes posts

in more than 25 countries, deployment of Austra-

lian police for international capacity-building,

Australian Federal Police (AFP) Australia’s Commonwealth police force established to enforce Commonwealth criminal law and to protect Australia’s interests from crime in Australia and overseas


monitoring and peacekeeping, as well as specialist

training for international law enforcement agencies

to help prevent transnational crimes at their source

and encourage greater international co-operation.

Some of the AFP’s international operations

include child protection, terrorism operations,

stopping human trafficking and drug operations.

For example, the Jakarta Regional Co-operation

Team has assisted Indonesian police to investigate

and arrest suspects of the 2002 Bali bombings

in Indonesia, as well as the bombings of the

Australian Embassy and the Marriot Hotel in

Jakarta in 2004 and 2005 respectively. The AFP

has also established the Jakarta Centre for Law

Enforcement Co-operation, which aims to enhance

Figure 6.7 The AFP played an important role in investigating and arresting suspects of the 2002 Bali bombings in Indonesia.

regional law enforcement skills to deal with

transnational crime. Over 5000 participants have

now completed the Jakarta Centre’s programs,

which include skills like criminal intelligence,

foren sics and financial investigations.

The AFP is also continuing to develop relations

with other regional bodies such as the South

East Asian Regional Center for Counter-Terrorism

in Kuala Lumpur and the International Law

Enforcement Academy in Bangkok.

COMMONWEALTH ATTORNEY-GENERAL’S

DEPARTMENT

The Commonwealth Attorney-General’s Depart-

ment plays varied roles in relation to transnational


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Human trafficking is a very serious issue in

transnational crime. It involves the movement

of people by force, coercion or deceptive means,

often trafficking women and children into the sex

industry. The global trade in people is a complex and

difficult crime to eradicate and estimates suggest

there are between 500 000 to 4 000 000 victims

annually. In the last decade, over 250 matters of

trafficking in Australia were referred to the AFP.

The Australian Government has introduced a

number of measures since 2003 to combat human

trafficking. Various offences related to human

trafficking are found in the Criminal Code Act 1995

(Cth), including slavery or any commercial

transaction involving a slave, sexual servitude or

deceptive recruiting, or trafficking in persons and

forced labour. Similar legislation has been passed in

Australian states and territories. The government

has also dedicated a significant amount of money

(about $60 million from 2003) to tackling the prob-

lem involving numerous government bodies and

attempting to tackle the issue from initial recruit-

ment to eventual reintegration of victims, including:

AFP funding to strengthen its ability to detect,

investigate and provide specialist training for

tackling the crime

National Policy Strategy to combat trafficking of

women for sexual servitude

Victim support measures and special visa

arrangements to support victims of trafficking

Co-operation with regional and international

agencies in tackling the sources and prosecuting

the offenders

Support and training for the Commonwealth

Director of Public Prosecutions to help prosecute

people trafficking.

The issue of human trafficking is explored in more

detail in Chapter 9.

Stopping human trafficking

Figure 6.8 Campaigns to raise public awareness of human trafficking, such as this one from the United States, are becoming more prominent around the world.

crimes. It reports and provides valuable advice

on Australia’s compliance with its international

obli gations, oversees the operation of legislation

relating to transnational crimes and provides

advice on their implementation and provides

general information to the public and to parliament

on the status of Australia’s efforts against trans-

national crime.

AUSTRALIAN CRIME COMMISSION (ACC)

The Australian Crime Commission (ACC) is a

national statutory body established under the

Australian Crime Commission Act 2002 (Cth) to

combat serious and organised crime. It investigates

matters of national concern and in coordination

with other international law enforcement agencies


it delivers specialist law enforcement capa bilities

to assist in investigating and analysing intelligence

concerning national and transnational crimes.

According to the ACC’s 2009 report Organised

Crime in Australia, most significant organised crime

groups operating in Australia have an international

dimension to their interests. Some areas the ACC

specifically investigates include South East Asian

organised crime, the primary point of heroin into

Australia, as well as money laundering and tax

fraud, identity crime, and human trafficking for

sexual exploitation.

AUSTRALIAN CUSTOMS AND BORDER

PROTECTION SERVICE

The Australian Customs and Border Protection

Service is a national agency responsible for the

security and integrity of Australian borders. The

agency works closely with other government and

international agencies to detect and deter the

unlawful movement of goods or people across

Australia’s borders.

AUSTRALIAN HIGH TECH CRIME CENTRE

(AHTCC)

The Australian High Tech Crime Centre (AHTCC)

was created in 2002 to coordinate all Australian

law enforcement authorities in fighting serious

types of crime that involve the use of technology.

It now forms part of the AFP’s High Tech Crime

Operations. Its main functions include:

coordinating a national approach to serious,

complex and multi-jurisdictional crimes

assist all Australian jurisdictions in their ability

to deal with high-tech crime.

The AHTCC has representatives from every

Australian jurisdiction and is funded by all states

and territories.

Figure 6.9 The Australian Customs and Border Protection Service is a national agency responsible for the security and integrity of Australian borders.


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STATE BODIES

There are numerous state and territory bodies that

investigate transnational crimes due to their cross-

jurisdictional nature. In NSW, some of these include

the Independent Commission Against Corruption

(ICAC), the NSW Crime Commission, the Police

Integrity Commission and divisions within the

NSW Police Service. Intelligence sharing and co-

operation and co-ordination between national,

state and territory bodies is essential in combating

transnational crimes.

REVIEW 6.4

1 Describe the domestic regime in Australia

applying to crimes against the international

community.

2 Outline some of the domestic measures

available to Australia to combat

transnational crime.

3 Evaluate the effectiveness of using

domestic measures alone in dealing with

international crime.

International measuresThere have been many different international

measures aimed at tackling international crime.

These measures can be generally divided into the

following categories:

co-operation between governments through

inter national treaties and international organi-

sations targeted at specific types of international

crime

international courts and tribunals to deal with

enforcement of international crimes

co-operation and intelligence sharing between

national and sub-national agencies to tackle

problems of trans-border crime.

Crimes against the international communityMost of the international efforts aimed at pre ven -

ting or prosecuting crimes against the inter national

community have already been discussed above.

Governments have showed con tinu ing commit-

ment and close co-operation in their development

of international treaties such as the Geneva

Conventions and the Rome Statute of the International

Criminal Court. It is in the nature of such crimes

that the international community recog nises and

universally agrees to condemn them.

COURTS AND TRIBUNALS

Prior to the establishment of the ICC, these crimes

were usually dealt with on a domestic level by

courts or military tribunals on a case-by-case basis.

However, throughout the 20th century, various ad

hoc international tribunals were also established in

order to prosecute atrocities relating to particular

TRIAL (Track Impunity Always) is an

independent Swiss association that works

for justice against the perpetrators,

accomplices and instigators of genocide,

war crimes and crimes against humanity.

It occasionally appears before courts

on behalf of victims, including the

International Criminal Court. Its website

tracks the progress of cases involving

crimes against the international

community, and is available at:

www.trial-ch.org/enleg

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events. For example, the Nuremburg trials or

Tokyo trials prosecuted crimes against humanity

and war crimes relating to the Second World War.

More recently, the International Criminal Tribunal

for the former Yugoslavia (ICTY) was established

in 1993 by the UN Security Council to investigate

and prosecute individuals for war crimes, crimes

against humanity and genocide committed during

the Yugoslav conflict between 1999 and 2001.

Since 2002, the International Criminal Court

has launched investigations and prosecutions into

a number of more recent events. To date, a number

of state parties have requested investigations into

internal matters and one matter has been referred

to the court by the UN Security Council.

RESEARCH 6.2

On the website of the International Criminal

Court (www.icc-cpi.int) and the internet

generally, research two of the situations listed

in Legal Info above, and answer the following

questions.

1 Explain what events the situation relates to.

2 Identify when the situation was referred to

the ICC and who referred it (e.g. state or UN

Security Council).

3 Identify some of the accused persons and

describe what stage their matter is currently

at, e.g. pre-trial, trial or appeal.

4 Describe any new situations that have been

referred to the ICC.

EXTRADITION TREATIES

One of the most important tools in fighting inter-

national crime is the use of extradition treaties.

Extradition is the process whereby one coun try

surrenders a suspect or convicted criminal to

another country to face criminal charges or

sentencing. For example, if a person commits

murder in another country and flees to Australia

before they are caught, they might be extradited

back to the original country. It is relevant to all

types of crimes, including international crimes.

International extradition is generally governed

by a series of bilateral agreements between

Australia and other countries. Australia currently

has extradition agreements with about 130 coun-

tries – a full list is provided on the website of the

Commonwealth Attorney-General’s Department

(see: www.ema.gov.au/www/agd/agd.nsf/Page/Ex

tradit ionandmutualassistance_Relationship

withothercountries_Alphabeticalcountrylist).

However, a few international agreements also have

their own specific extradition arrangements, inclu-

ding the Rome Statute of the International Criminal

Court and the Genocide Conventions. For example,

Australia has received three extradition requests

from the ICTY against people residing in Australia

accused of committing war crimes.

In Australia, extradition is governed by the

Extradition Act 1988 (Cth). The Act sets out the

criteria required before extradition will be granted.

It must be determined that the accused has a case

to answer on the evidence and that the accused

extradition the legal surrender of a suspect or convicted criminal by one jurisdiction to another to face criminal charges or sentence

bilateral agreement an agreement between two countries

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By 2010, the following situations have been referred

to the ICC for consideration:

the situation in Uganda

the situation in the Democratic Republic of the

Congo

the situation in Darfur, Sudan

the situation in the Central African Republic

the situation in the Republic of Kenya.

Matters before the ICC


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pCroatia to appeal to High Court over Dragan Vasiljkovic extradition

By Angus Hohenboken

The Australian, 12 February 2010

The High Court has granted the Croatian Government special leave to appeal a full federal court decision preventing the extradition of Serbian paramilitary leader ‘Captain Dragan’ to Croatia to face questioning over his alleged involvement in war crimes.

The Croatian Government…argues the decision has wide implications for Australia’s ability to pursue the alleged perpetrators of international crimes.

In its application the Croatian Government said that the Federal Court was wrong to conclude that Mr Vasiljkovic, an Australian citizen, could not receive a fair trial in Croatia because of his political beliefs.

Under section 7c of Australia’s Extradition Act, an accused person can be exempted from extradition if on surrender to the extradition country ‘the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of race, religion, nationality or political opinions’.

The full Federal Court found in its September judgment that Croatia’s courts had allowed its own soldiers to rely upon their service in the Croatian armed forces during the Balkans’ ‘homeland war’ to mitigate sentences in criminal matters, but Serbian soldiers had not received the same considerations.

The Federal Court concluded that, if convicted, Mr Vasiljkovic might be incarcerated for a longer period than a Croatian counterpart, largely as a consequence of his political beliefs.

The Croatian Government will argue that the Federal Court wrongly concluded that Mr Vasiljkovic might receive a longer

sentence if convicted because of his political beliefs, and that the mitigating factor applied to Croatian soldiers was irrelevant to Mr Vasiljkovic.

Mr Vasiljkovic was the commander of a paramilitary unit known as the Red Berets during the ethnic conflict in the Balkans between 1991 and 1993.

The Republic of Croatia wishes to question Mr Vasiljkovic in relation to allegations against him including that he directed his troops to commit the war crime of torture and committing the war crime of torture during his time in Srpska Krajina, a Serbian-dominated part of Croatia, until 1993.

He has vigorously denied the claims… Last February, a Federal Court judge

dismissed a challenge by Vasiljkovic, against a magistrate’s finding that he was eligible for surrender to the Republic of Croatia.

But in September, a full bench of the court allowed Mr Vasiljkovic’s appeal, and he was released from Sydney’s Parklea prison after almost four years in custody.

REVIEW 6.5

Read the Media Clip and complete the

following tasks:

1 Identify the types of crimes Mr

Vasiljkovic is accused of and the

international situation that they

allegedly occurred in.

2 Explain the nature of the extradition

request involved and identify the main

issue that Australian courts have raised.

3 Outline the court process that Mr

Vasiljkovic’s case has progressed

through.

4 Evaluate whether you think justice can

be properly served in this case.


will receive a fair trial in the state to which they

are being returned. It must also be shown that

the offence is a crime in both Australia and the

target country.

Extradition is an extremely important method

for combating international crime as it ensures

that an offender cannot simply flee the jurisdiction

where the offence was committed in order to

escape prosecution for their crime. The case of

Dragan Vasiljkovic (discussed in the media clip)

illustrates some of the issues that may arise under

an extradition request for inter national crimes.

Transnational crimesThere is a long list of international organisations

and international treaties that aim to combat

transnational crimes, either in general or targeting

specific crimes. Some specific examples of these

are provided below.

INTERNATIONAL CRIMINAL POLICE

ORGANIZATION (INTERPOL)

The International Criminal Police Organization

(INTERPOL) is the world’s largest international

police organisation and to date it has 188 member

countries, including Australia. INTERPOL was

created in 1923 as a means to improve trans-

national cooperation between police around the

world. Its mission is to prevent or combat inter-

national crime. Its headquarters are now situated

in Lyon, France.

INTERPOL currently lists its six priority crime

areas as:

drugs and criminal organisations

public safety and terrorism

financial and high-tech crime

trafficking in human beings

fugitives

corruption.

At any given time, the organisation is engaged

in numerous world-wide operations investigating

and providing advice to national law enforcement

agencies on transnational crimes. For example,

some of its current operations include targeting

organised crime in Asia and Eurasia, international

counterfeiting and money laundering, trafficking

in arms and drugs, or inter national terrorism.

There has recently been some movement

towards dev elop ing a ‘global police force’, advo-

cated by INTER POL in cooperation with the United

Nations, to improve the skills of police peace keepers

and sharing of com munications net works and

criminal data. One effect might be to increase the

ability to track the movement of criminals around

the world by sharing resources and common

standards.

RESEARCH 6.3

INTERPOL’s website at www.interpol.int

contains detailed information on transnational

crime. Select one of INTERPOL’s priority crime

areas and research it on INTERPOL’s website,

then answer the following questions:

1 Identify the types of transnational crimes

that are included in that priority area.

2 Describe the background to one of the

crimes as explained by INTERPOL.

3 Assess some of the measures that INTERPOL

is taking to deal with the crime.

International Criminal Police Organization (INTERPOL) the world’s largest international police organisation established in 1923 to facilitate collaboration among intelligence agencies around the world

Figure 6.10 INTERPOL headquarters building in Lyon, France.


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Signature states commit themselves to ensur-

ing their own domestic criminal offences regulate

participation of organised crimes, money launder-

ing and other aspects of corruption. States must

also adopt broad changes to extradition pro-

ce dures, commit to providing ‘mutual’ legal

assistance and co-operation between law enforce-

ment agencies, and undertake to upgrade the

capacity of national authorities to deal with

organised transnational crime networks.

PACIFIC TRANSNATIONAL CRIME

NETWORK (PCTN)

The Pacific Transnational Crime Network (PTCN)

was formed in July 2002 as a response to increases

in regional transnational crime. It was an initiative

of the AFP, who realised that strong relationships

were needed between Australia and its Pacific

neighbours if they were to combat the problem of

transnational crime. The network’s headquarters

are currently located at the Pacific Transnational

Crime Co-ordination Centre in Apia, Samoa.

The PCTN with the AFP has created a region al

network of transnational crime units in Pacific

For more information on the

United Nations Convention

against Transnational Organised

Crime and its Protocols, visit the

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states with a focus on combating cross-border

criminal activity such as drugs and arms smug-

gling or money laundering. It manages, coordinates

and enhances law enforcement intelligence across

the region. Pacific countries have been identified

as particularly vulnerable to the threats of trans-

national crime, especially from organised crime

groups. Pacific nations may have less resources to

tackle law enforcement or to detect and prosecute

such crimes and the PCTN provides technical

assistance, training, resource sharing and helps to

strengthen the rule of law in Pacific countries.

The PCTN has been successful in the region.

For example, in 2004 the then largest metham-

phet amine laboratory in the southern hemi sphere

was discovered and dismantled in Suva, Fiji. The

laboratory posed serious environmental and physi-

cal danger to local communities, and the drugs

were potentially destined for markets in Australia

and New Zealand, Europe and the United States.

Recently, some high-profile arrests have been made

of Pacific regional figures engaged in various immi-

gration, financial fraud and money laundering

activities.

website of the United Nations

Office on Drugs and Crime at:

www.unodc.org/unodc/en/

treaties/CTOC/index.html.

CONVENTION AGAINST

TRANSNATIONAL ORGANIZED CRIME

The United Nations Convention against Trans-

national Organized Crime is regarded as the main

international instrument in the fight against trans-

national organised crime. It began operation

in 2000 and has three protocols that countries

become a party to once they sign the convention.

These include:

Protocol to Prevent, Suppress and Punish

Traffick ing in Persons, Especially Women and

Children

Protocol against the Smuggling of Migrants by

Land, Air and Sea

Protocol against the Illicit Manufacturing of

and Trafficking in Firearms, Their Parts and

Components and Ammunition.


The ef fect iveness of measures deal ing with internat ional crime

Some of the most significant measures used in

combating international crime were described

above. However, due to the complex and difficult

nature of transnational crimes, the effectiveness

of those measures is mixed.

Transnational crimeFor transnational crimes, there are often complex

organised criminal groups at work with often

sophisticated measures taken to avoid detection.

Authorities around the world have to combat

a number of crimes, including identity fraud,

internet crime, paedophilia rings and the traffick-

ing and smuggling of people and contraband.

Some states may lack the skills, training and

resources to combat such crimes or may be

unable due to political unrest or high levels of state

corruption. Such states may become a target or a

breeding ground for transnational crime affecting

other states and making it very difficult to combat

the problem. The main areas for efforts against

transnational crime to address include:

the extent of international cooperation between

states – provision of adequate resources

the effectiveness of coordination among inter-

national agencies – exchange of information

the level of compliance among weaker or poorer

states – states where rule of law may be weak

become targets by organised crime groups.

To be successful, states will require significant co-

operation and sharing of skills, resources, funding

and intelligence on an unprecedented scale. To

date, some important measures, both domestic

and international, have been put in place to cope

with transnational crime and there has been some

success in response. However, as with domestic

crime, transnational crimes are unlikely to dis-

appear any time soon and as the world changes

an increased effort will be needed to tackle the

issues it presents.

Crimes against the international communityClearly the most significant development in

combating crimes against the international com-

munity has been the establishment of an ICC,

which followed numerous specific tribunals set

up to cope with crimes committed during specific

situations like Rwanda and Yugoslavia.

A permanent court such as the ICC is symbol ically

very powerful, and sends a message that leaders

or other criminals can no longer hide behind the

immunity of their own sovereignty in committing

such appalling acts. The threat of later prosecution

may act as a deterrent against rogue leaders using

any such tactics. It also offers enormous support to

victims of the crimes by attempting to bring to justice

those responsible for these human atrocities.

However, the tribunals and the ICC have not

been without criticism. In particular, the courts are

established to deal with these atrocities after they

have been committed, and there is valid criticism

that international law and the international

community have been too slow to stop these

atrocities before they occur, or even while they

are occurring. Unlike domestic courts, short of

rare intervention by the UN Security Council,

there is also no international force or police that

can capture such offenders, especially where they

remain inside their own state jurisdiction.

This is particularly evident, for example, in the

conflict in Darfur, Sudan, where charges by the

ICC were not laid against President al-Bashir until

2008, five years after the atrocities began. This

was some 15 years after the world had witnessed

the gruesome genocide in Rwanda, where 500 000

people were killed within just 100 days, which the

international community had condemned and

vowed never to let happen again. In Sudan, at the

time of publishing President al-Bashir is still in

office and has not been apprehended.


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The enormous cost of such investigations and

prosecutions also needs to be borne by member

states. As such it is never likely to be possible for

the international community to prosecute all of the

offenders who commit these crimes. Having said

this, a permanent court, with established investi-

gative and court mechanisms as well as perma-

nent staff, is a step towards greater efficiency.

The effectiveness of any international institution

will usually come down to the sum of its parts.

While the ICC now has over 110 member states, it

crucially lacks some of the world’s most important

and influential countries. These include some

of the world’s major powers (such as the United

States, China and India), as well as some very

influ ential countries (such as Pakistan, Vietnam

and Indonesia).

Most objecting states claim that joining the

ICC would violate their state sovereignty. As dis-

cussed above, one of the biggest advantages of

the Court is that it can act independently of state

jurisdictions where they are unwilling or able to do

so. However, critics claim that in many cases states

fear subjecting themselves to investigation over

their own affairs, for example India over Kashmir,

or China over Tibet or Xinjiang. Nevertheless, the

ICC only has jurisdiction for crimes committed

after its establishment, and it still has jurisdiction

over any individuals from non-member states

who commit crimes against or in the territory of

a member state. Supporters of the court argue

that the danger of crimes against the international

community occurring again without independent

oversight or responsibility ought to outweigh the

national interests of state parties.

The continued development of the international

criminal justice system is a promising tool in

combat ing crimes against the international com-

munity. With adequate resources and political

determination by states around the world, the ICC

has the potential to make a significant difference

in preventing further atrocities or bringing to

justice those res ponsible where they do occur. At

this stage it is too early to genuinely comment on

its success – its true effectiveness will be judged as

history unfolds throughout the 21st century.

Figure 6.11 Member states of the International Criminal Court (as at October 2009).

member state

treaty signed but not yet ratified

non-member state

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