Mandatory obligations under the international counter-terrorism and organised crime conventions to facilitate state cooperation in law enforcement

K Law (General);KZ Law of Nations

Hameed, Usman ; Sloan, James

University:University of Glasgow

Department:School of Law

关键词: State Cooperation in Law Enforcement, International Conventions on Terrorism and Organised Crime;   

Others  :  http://theses.gla.ac.uk/5118/1/2014hameedphd.pdf

来源: University of Glasgow

【 摘 要 】

The UN-sponsored international conventions on terrorism and organised crime deal with a specific type of criminality which spreads across national frontiers. The suppression of these crimes is possible through state cooperation in extradition and mutual legal assistance. Hence, the object of these conventions is to facilitate law enforcement cooperation. To achieve this aim, the conventions have established certain mandatory obligations in order to ensure harmony among the legal systems of states parties with a view to make them conducive to law enforcement cooperation.Harmony is needed to satisfy certain requirements of extradition and mutual legal assistance proceedings which necessitate similarity in the legal systems of the requesting and requested states. These requirements can be classified into distinct categories of conditions and procedure.Conditions refer to conditions associated with the principle of reciprocity or exchange of comparable favours, upon which the laws and treaties on extradition and mutual legal assistance are based. It demands similar legal prescriptions or equivalent conceptions of justice under the laws of the requesting and requested state with respect to the act concerning which surrender or interrogation is sought. To enable the parties to satisfy conditions, the international conventions impose mandatory obligations to implement their rules concerning jurisdiction, criminalisation and fair treatment. Procedure implies the procedure of applying or executing the enforcement devices of aut dedere aut judicare and confiscation of the proceeds of crime. The application of both these devices necessitates similarity in the laws of the requesting and requested states with respect to procedure of enforcement. Similarity is needed to ensure that a foreign request may not be refused due to the requested state lacking enabling procedural rules or the request not being consistent with its procedural law. To establish similarity, the conventions impose mandatory obligations to implement the mechanisms of aut dedere aut judicare and confiscation of the proceeds of crimes. This thesis critically examines the impact of these obligations on state cooperation in bringing to justice transnational offenders.The central argument of the thesis is that the mandatory obligations under the counter-terrorism and organised crime conventions are required to be implemented in accordance with and, to the extent permissible, under the national law of state parties. Accordingly, when they are translated domestically, they do not achieve a level of harmony, sufficient to facilitate the fulfilment of the requirements of extradition and mutual legal assistance, i.e. ‘double conditions’ and procedural similarity needed to enforce aut dedere aut judicare and confiscation. Resultantly, discretion rests with the requested state to grant or refuse cooperation depending upon its political and diplomatic relations with the requesting state. This contradicts the objective of facilitating law enforcement cooperation in the specific context of borderless or transnational crimes. Following this approach, state cooperation concerning transnational crimes remains as discretionary and as unregulated as cooperation in regard to ordinary crimes. This calls into question the utility of reliance on mandatory obligations as tools to facilitate law enforcement cooperation.As an alternative, some bilateral/regional treaties and domestic laws adopt the strategy of relaxing ‘double conditions’ and simplifying the procedure of applying aut dedere aut judicare and confiscation. This strategy also aims at facilitating law enforcement cooperation; however, it takes the route of regulating the requirements of extradition and mutual legal assistance rather than harmonising national justice systems to make them conducive to their demands. Given that this system carries greater potential for facilitating law enforcement cooperation, this thesis recommends that the makers of the international counter-terrorism and organised crime conventions should substitute or complement the mandatory obligations with it. Significantly, states have, by agreeing not to apply political and fiscal offence exception to extradition and interrogation proceedings involving these crimes, shown their willingness to accept this approach of facilitating law enforcement cooperation in the specific context of transnational crimes.