Transnational organised crime as crimes under the jurisdiction of national courts but triggered by international law

The ‘next generation’ of international criminal law

As this analysis has shown so far, in exceptional circumstances international criminal law may apply to conduct by organised criminal groups as crimes being tried before the ICC or other national or international tribunals. It is interesting to note that nowadays there is even a third way in which organised crime falls within the reach of international criminal law. In the wake of the Yugoslav wars of the 1990s and despite the ICTY’s ongoing jurisdiction, the international community took steps both to recover and to extend international judicial authority in nation-states after periods of transition. Thus the Court of Bosnia and Herzegovina, for example, was founded by the High Representative of the UN in 2000 and mainly has jurisdiction over war crimes, but also—and very decisively for the present analysis—over organised crimed⁶ This new mechanism clearly shows the close link between international criminal law and the establishment of new judicial competences relating to organised crime. Indeed, violence by gangs or any other organised group conduct incurs individual criminal responsibility by virtue of national jurisdiction, but essentially this is triggered by international criminal law.

Within this framework of an ‘international criminal law of a new generation’,¹⁷ combating organised crime is also a matter of constituting the appropriate judicial authority and competence at the national level, mindful of the prerequisites for any criminalization of gang violence or organised criminal conduct in public international law: due allowance must be made for a framework of normative boundaries set by international humanitarian law, the law of peace and armed conflict, the protection of human rights, and the rule of lawd⁸