International Criminal Justice below the Radar: Executive Power in the Shadow of Judicial Publicity

The material scope of international criminal law, understood as consisting of those crimes that are internationally proscribed and prosecuted, is actually a narrow tip of the iceberg that is the broader international criminal justice framework. This later framework consists of international legal norms and institutional apparatus dealing with both the prosecution and prevention of a wide range of international crimes, beyond the four categories that are dealt with under the Rome Statute. Crimes such as specific acts of terrorism, human and drug trafficking, illicit trade in arms, corruption, and other transnational organized crimes are increasingly proscribed under various international agreements that are enforced by an international ‘executive’ institutional apparatus working with national criminal justice systems, outside of the judicial framework of international courts and tribunals. In fact, the bulk of international criminal justice activity takes place through these ‘non-judicial’ channels. Prosecutorial cooperation, extraditions, exchange of evidence, tracking and detaining of suspects and equipment across borders and so on take place routinely under the aegis of international institutional frameworks such as the INTERPOL, United Nations Office on Drugs and Crimes, United Nations Security Council, and regional associations of police and intelligence agencies. This international executive-led criminal justice system operates below the radar in the sense that the various expert-led international transactions that this system is anchored on do not normally attract public attention as the workings of international judicial bodies, such as the ICC, do. This paper brings to light this vast expanse of executive-led international criminal justice system that complements but operates outside the framework of international courts and tribunals. The paper then centrally presents the spill over effect of the prominent rise of international criminal law on to this executive-led international criminal justice system. Most directly, the executive-led international criminal justice system has benefited from the sweepingly permissive political environment created with the recent publicity and normative pull of international criminal law. This political climate has particularly enabled the taking of efficiency-driven build-up and reform of an international counter-crime executive system, apportioning expanded powers to national and international police and law-enforcement bodies and diminishing due process safeguards that serve to preserve rights and facilitate contestations.