The Long Arm of the Law

In the new movie Public Enemies, Johnny Depp plays John Dillinger, the 1930s bank robber and killer who gets hunt-ed down and shot by the newly formed FBI. The key to FBI success was to break down the barriers to cross-state criminal-catching that had previously allowed crooks to skip across state borders and thumb their noses at lawmen constrained by interstate rivalries.

Something similar is now happening internationally, as the United States and European countries come to the realization that the globalization of crime means the law and justice systems limited by state borders are no longer sufficient. As yet there is no global J. Edgar Hoover, still less a WBI—a World Bureau of Investigation—hunting down today's post-national criminals. But the barriers to supranational policing and justice are slowly being eroded.

Take the case of Simon Shepherd and Steven Whittle, two men from northern England who posted ugly anti-Jewish rants on a Web site hosted by a provider based in the United States. Britain now takes a much tougher line on anti-Semitic hate than in the past, and last year a Yorkshire jury found the men guilty of racist and anti-Semitic crimes. But before they could be sentenced, they skipped bail and flew to Los Angeles, confident that America's constitutional right to free speech would protect them. Instead a California judge shipped them home to England, where they were convicted in July and sent to serve three-year prison sentences. Similarly, a U.S. court in July sent the former Panamanian strongman Manuel Noriega to France to answer money-laundering charges. And after more than a decade under the protection of the British legal system, Rachid Ramda, the Islamist financier behind the 1995 Paris Métro bombing, was finally sent to face trial in Paris in 2005 and is now serving life. Indeed, since the U.S. and Britain signed a new extradition treaty five years ago, there has been a dramatic increase in the numbers of accused being sent home to face justice on both sides of the Atlantic—reflecting a growing sentiment that criminals should not be allowed to shelter behind differences in countries' legal systems.

Supranational law enforcement and justice is tricky. Conservative legal theoreticians worry that supranational law impinges on national sovereignty; liberals fear that other nations' legal systems may not be up to scratch. The genuine tensions between universal rules and the hard-won traditions of national law are not easy to resolve. No European country will extradite for a crime that could carry the death penalty to a U.S. state that carries out executions. Abortion may be legal in one country; rape may not be a felony crime in another.Murder is murder, but tax avoidance, financial fraud, and hate crimes are more amorphous, leading to the possibility that individuals and companies will be forced to contend with a perplexing patchwork of regulation to avoid running afoul of any one nation's laws. For instance, the U.S. Constitution protects free speech in a way that British, French, and German laws forbidding race hatred or Holocaust denial would not. British bankers can face charges in the U.S. if they have done business in Cuba—a proposition no European will accept.

Moreover, some British politicians like to puff themselves up like a latter-day Lord Palmerston, the British prime minister who announced the doctrine of "civis Britannicus sum"—I am a British citizen (and can be tried only in a British court)—based on the imperial arrogance that Britain would not allow any other legal jurisdiction to prevail. British politicians are now out in force trying to stop the extradition of a computer hacker, Gary McKibbon, who broke into the U.S. government's secret networks. His case highlights the new nature of post-national crime and its enforcement: when is cybercrime just a geek obsession, and when does it reveal the state's defenses against terrorism? Squaring these differences will not be easy.

Yet the push for supranational law and order grows. In 2004, a major step forward was taken with the creation of a European arrest warrant, which has reduced average extradition time between EU member states from 18 months to 50 days. The old jokes that British criminals could retire to the "Costa del Crime" in Spain—true when Franco's Spain had no extradition agreements with other European states—have disappeared. More than 1,000 British police and frontier officers now work in France keeping an eye on the flow of undesirables into Britain. After the July 2005 terrorist bombings in London, one of the wanted men, Hussain Osman, fled to Rome expecting that civil-liberty lawyers there would protect him. Instead, he was shipped back to London within weeks. As with Dillinger in 1933, today's criminals are less and less able to cross a state frontier and assume they are safe. How long before we get a global 21st-century version of The Untouchables?

Macshane is a labour M.P. and was Britain’s Minister for Europe under Tony Blair.

© 2009