Globalization of Criminal Justice

Michael Bohlander

• Publisher: Routledge
• Year: 2017
• Print ISBN:
  9780754628651
• eBook ISBN:
  9781351932981
• Topic: Social Sciences
• Subtopic: Politics
• Index: Social Sciences

Genocide, crimes against humanity, war crimes, ethnic cleansing are terms which in recent years have entered common usage. The worst cases of these crimes seen in the Yugoslav secession conflict and the Rwandan slaughter resulted in attempts by the international legal community to initiate an international mechanism for establishing criminal accountability. In 1998, after many States signed the Rome Statute, it was expected that justice would prevail over state power and impunity be eliminated. However there is a serious question mark over the effectiveness of this process. That is the starting point for this collection. It is not an acclamatory collection that is meant to celebrate the undoubted advances of international criminal justice. The articles in the first part show the importance of comparative criminal law research to the development of international criminal justice, and in the second part they deal with the foundations, substantive and procedural aspects of international criminal law.

Part I
Comparative Criminal Law

[1]
Harmonic Convergence? Constitutional Criminal Procedure in an International Context

DIANE MARIE AMANN*

INTRODUCTION

I. KEYNOTE: A MODEL OF CONSTITUTIONAL CRIMINAL PROCEDURE

II. CONCORDANCE: MOVEMENTS TOWARD A SHARED CONSTITUTIONAL CRIMINAL PROCEDURE

A. First Movements: Post-Revolutionary Reforms

B. London Charter: An International Code of Criminal Procedure

C. After Nürnberg: Cross-Border Crime and the Rights of the Accused

1. Increased Global Crime and Law-Enforcement Cooperation

2. Protection of the Individual in International Law

D. European Integration at the Vanguard of Convergence

1. European Court of Human Rights

2. European Union

3. Corpus Juris

E. Toward Truly International Enforcement

1. Influence of Nongovernmental Organizations

2. International Criminal Tribunals

3. Proposed International Criminal Court

III. NOTES OF DISCORD: RESISTANCE TO A GLOBAL CRIMINAL PROCEDURE

A. Temporal Notes

1. Crime

2. Lack of Resources

3. Uneasy Compromises

B. Structural Notes

1. Lack of Shared Traditions

a. Islamic States

b. China

2. Erosion of State Status

a. Proposed International Criminal Court

b. United States

IV. TOWARD HARMONY? PROSPECTS FOR A SHARED, CONSTITUTIONAL CRIMINAL PROCEDURE

INTRODUCTION

In Cambodia, a defender challenges a government witness by means of cross-examination, a procedure new to that state’s courts. Meanwhile, the proper scope of such confrontation spurs argument before a tribunal at The Hague. In Rwanda, an attorney stands beside a defendant who, not long before, would have had no hope of representation. A court in Strasbourg scrutinizes the United Kingdom’s use of compelled statements against a defendant, as Justices in the United States decline to apply an international concept of degrading treatment. Chinese defendants, traditionally considered offenders from the time of arrest, now enjoy a presumption of innocence. These examples point to an important global trend: the emergence, in national, regional, and international courts, in common law, civil law, and mixed systems, of a shared, a constitutional, criminal procedure.

Traditionally, how a state chose to fight crime was an internal matter. States developed their own methods to investigate crimes, to capture and try suspects, and to punish criminals. That changed in the last half-century. Crime became global, spurring law enforcement officers in individual states to join together in an international attack on crime. At the same time, a certain model, by which an individual’s fundamental rights may outweigh a state’s assertion of might, began to predominate. International norms respecting the treatment of accused individuals emerged, and states eager to entrench membership in the world political and economic community began to adopt them. Thus has the administration of criminal justice started to converge.¹ Some accounts suggest a harmonic convergence, an eventual combination of various strains into a unified body of law.²

This Article explores whether such a convergence is possible. Part I posits, as a keynote around which harmony may develop, the model of constitutional criminal procedure built in the United States in the first part of the twentieth century. The model’s core is the belief that the state must treat accused individuals equally, with due respect for their liberty; that is, to use the term preferred by the U.S. Supreme Court, with fundamental fairness. Part II traces global movements toward this kind of model. The process began at the time of the French Revolution and continued at the Nürnberg trials. It accelerated as the belief that an accused has certain rights won international acceptance, and as mounting crime prompted greater international law enforcement cooperation. Convergence has moved most rapidly in Europe as a part of that region’s economic and political integration. International enforcement efforts have grown, most recently in the 1998 Rome Statute of the proposed International Criminal Court. Part III sounds notes of discord. It demonstrates that in a number of countries—China, the Islamic states, France, and the United States—adherence to sovereignty and national tradition may prevent a full embrace of a global standard. Part IV examines implications of these global phenomena. Forces such as global crime and desires to participate in the world political and economic community will continue to motivate consensus. Still, some states will continue to resist out of perceived national interests. Because of these competing strains, the Article concludes, external pressures alone will not bring harmony. Rather, there must be acceptance of a shared norm, of a body of internationally recognized rights, as a fundamental component of civil society. Even if both are present, however, states will reject components of convergence that they believe threaten their security or position within the world community.

I. KEYNOTE: A MODEL OF CONSTITUTIONAL CRIMINAL PROCEDURE

The tenet that the individual enjoys natural or inalienable rights—rights that a state may not infringe—has a long history. It appeared in the writings of medieval natural law and Enlightenment philosophers throughout Europe.³ It fueled struggles against tyranny in England, on the European continent, and in the colonies.⁴ The concept of individual rights attained a new status at the founding of the United States of America. In 1789 the “People” of the new country adopted a written Constitution,⁵ which dispersed power among the legislative, the executive, and the judicial branches, each of which was to check the other.⁶ Power also was to be shared between the federal government and the governments of the constituent states.⁷

This new Constitution contained some restraints on the prosecution and punishment of individuals. No conviction for treason, for example, was permitted unless there were two corroborating witnesses, and the writ of habeas corpus could not be suspended.⁸ But critics argued that the Constitution was incomplete because it failed to articulate the full scope of an individual’s rights. In response, the new United States soon adopted a Bill of Rights, ten short amendments that restricted governmental action against individuals. Reflecting the secular philosophy that had arisen in the last century,⁹ the Bill of Rights assured free exercise of religion and forbade establishment of a state church.¹⁰ To promote individual autonomy, it guaranteed rights to freedom of expression and against unreasonable searches and seizures. It assured criminal defendants the rights not to testify against themselves, to have assistance of counsel, and to be tried by an impartial jury.¹¹

In contrast with the proclamation of individual rights in the 1776 Declaration of Independence, which generally is considered aspirational, the enumeration in the 1791 Bill of Rights was to be enforceable. Little enforcement occurred in the early history of the United States, however, largely because the U.S. Supreme Court held that the Bill of Rights constrained only the federal and not the state governments.¹² The Court adhered to a doctrine of dual sovereignty, which accorded states maximal freedom to operate in areas not ceded in the Constitution itself.¹³ Among those areas was the administration of criminal justice.¹⁴

The dual sovereignty doctrine eroded as a result of decisions interpreting the Fourteenth Amendment, which provides in part that “[n]o State shall … deprive any person of life, liberty, or property, without due process of law.”¹⁵ Litigation, sometimes supported by civil liberties and other organizations, drew national attention to states’ abuses of defendants.¹⁶ Members of the U.S. Supreme Court further expressed concern that greater cooperation between federal and state officers, prompted by increasing cross-border crime, threatened the rights of the accused.¹⁷ In a series of decisions spanning the twentieth century, the Court held that the Due Process Clause required the states to obey provisions in the Bill of Rights that served “fundamental fairness,”¹⁸ a concept variously amplified as entailing principles of liberty and justice that are “‘at the base of all our civil and political institutions’”;¹⁹ “‘implicit in the concept of ordered liberty … enshrined in the history and the basic constitutional documents of English-speaking people’”;²⁰ “part of the Anglo-American legal heritage”;²¹ and “‘essential to a fair trial.’”²² The Court declared virtually all the rights contained in the Bill of Rights to be fundamental, and thus applicable throughout the United States. Defendants, whether in state or federal court, were entitled to appointment of counsel,²³ to a privilege against self-incrimination,²⁴ to be free from illegal...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• Part I Comparative Criminal Law
• Part II International Criminal Law
• Name Index