13 December 2000



The United Nations was the only body capable of confronting the problems of the globalization of financial markets with authority and with a comprehensive breadth of vision. This observation was made this morning by Guido Rossi, Chairman of the International Scientific and Professional Advisory Council of the United Nations Criminal Justice Programme, at a Symposium entitled, "The Rule of Law in the Global Village-- Issues of Sovereignty and Universality".

The Symposium is being held in conjunction with the four-day High-level Political Signing Conference for the United Nations Convention against Transnational Organized Crime, which is under way in Palermo, Italy. The theme of this morning’s session was "Towards Universal Jurisdiction: Promise or Threat?".

Mr. Rossi spoke on the question of "How Much Longer Can We Do Without a Supranational Authority for Financial Transactions?" He said the extraordinary recent technological development of cyberspace and the economic globalization resulting from it had given rise to much talk on the need for a "juridical globalization".

That would serve, he said, to counteract the fragmentation of the sovereignty of individual States, which were unable to regulate activities occurring beyond their own frontiers, and it would also strike at the illicit activities which globalization, without norms, both encouraged and nourished. No jurisdiction of a single country could tackle it, despite the plethora of efforts to do so.

Mr. Rossi said a single and sole regulatory authority was necessary to supervise the international financial markets. It should, among other things, make provisions for harmonizing in simple but uniform principles the current rules for securities trading. Such an international authority should be invested with wide powers to take action against frauds and to apply rules for the protection of investors on the world market. The challenge for the creation of such a supranational authority must be addressed by the United Nations.

Erik Danon, former Chief of Cabinet of the French Ministry of Development Cooperation, who served as Moderator for this morning’s discussion, noted in his introductory remarks that yesterday’s speeches at the Conference’s plenary had stressed globalization’s role in changing crime, both in scope and nature. Modern crime had become an important component of society and one of its greatest threats. Globalization, then, had a hidden, negative side, which was comprised of its refusal and rejection of all those excluded from its benefits; circumvention of the State, with respect to the question of physical borders; and the emergence of transnational, better organized crime.

The response to the negative side of globalization could be found at several levels, and in that respect he brought up the subject of universal jurisdiction. He then set out five key aspects of such jurisdiction: the need for a State to ensure protection of its nationals overseas; the need to prevent nationals who committed offenses abroad from rushing home for shelter; offenses committed outside a country with consequences that might have effects inside a country, such as forging; the evolution of transnational crime; and the idea that some acts, because of their gravity, constitute an attack on the international community, such as crimes against humanity, drug trafficking and others.

The emerging "world society" must define its values and prohibitions, he said. There would be more and more pressure to establish universal legal instruments. The new world society must define what it considered criminal. This, of course, would pose difficulties, and it must be seen how that notion of criminality clashed with questions of sovereignty, among others.

Baltasar Garzon Real, Spanish Magistrate, discussed the subject of "Extradition and Mutual Legal Assistance: Potentials and Limitations". He said that while it was not difficult to define international crimes, such as crimes against mankind and drug trafficking, it was difficult to determine appropriate mechanisms for cooperation. Considering the cases in the world where extradition needed to be applied, it was clear that the various national systems differed significantly. In a high percentage of cases, extradition would be denied, purely on formal grounds. He stressed that the law of the requesting or investigating State should apply, not that of the requested State.

Another problem that must be resolved, he said, was the principle of so-called "double jeopardy" or "double criminalization" -- cases where the deed being investigated was not criminal in the requested State. Assistance in such cases should nevertheless be extended to the investigating State. Essentially, the principle of double criminalization should disappear. He also stressed the need for clarity in the case of crimes against humanity. Such crimes affected the international community, which should therefore be protected. There must be a clear, fixed standard under which States operated.

He then addressed the question of whether it would be possible to create a body within the United Nations to bring together the documentation that would help in criminal proceedings. Such a body would have permanent standing contact with the countries to which it would provide assistance when existing mechanisms were inadequate.

Otto Triffterer, of the University of Salzburg [Austria], addressed "National Sovereignty and Universal Jurisdiction", bringing up, as he did so, the case of Chilean General General Augusto Pinochet, as well as the 1989 Lockerbie case related to the bombing of Pan Am flight 103.

He stressed that strict laws were needed for the protection of vulnerable people. Universal jurisdiction, he said, held out a promise for the victims of the abuse of power. In that respect, he cited the International Criminal Tribunals for the former Yugoslavia and Rwanda. Conversely, universal jurisdiction held a threat for those abusing power, such as those who committed war crimes and crimes against humanity.

Mark Gibney, of the University of North Carolina [United States], took up "The Rule of Law and Universal Jurisdiction". He said he wished to see the creation of an International Civil Court, which would allow prosecution of individuals who had, for example, committed human rights violations. States did not seem to have the ability to prosecute people who had committed such offenses. The seeds of such a system existed, he said, citing the civil litigation system in the United States, among others.

He stated that the international community was fast moving in the direction of an affirmative answer to the question Cain had asked God in the Bible, "Am I my brother’s keeper?". He stressed the need to move towards a much broader definition of what constituted universal jurisdiction.

The Symposium will continue this afternoon, when speakers will address the theme of "Coping with Transnational Crimes: The Need for a Common Response."

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