Bird's-eye view and worm's-eye view: towards a defendant-based approach in transnational criminal law

Abstract

While the classic approach to transnational law provides a valuable tool for identifying the legal frameworks governing transborder occurrences, it falls short of covering all relevant aspects of transnational criminal law (TCL). This article argues that criminal law -unlike other areas of law -is fundamentally a state-oriented concept, leading to unique problems when implemented across state borders, especially for the individual facing penal power. A theoretical concept of TCL must therefore not only map extensions of state powers from high above, but also look for the individual's position in the possibly overlapping normative orders on the ground. The current predominant bird's-eye view must be modified according to the worm's-eye view. In doing so, the specific features and resulting problems of TCL will emerge. From this modified point of view, a main challenge is the establishment of a globally recognised coordination scheme, which will protect the legal position of individuals -particularly defendants -affected by states exercising their ius puniendi across borders.

The legal geographies of extradition and sovereign power

“…However, calls for the development of new modes for dealing with transnational cybercrime and related jurisdictional issues require caution. EU experience suggests there is considerable disquiet over the ready transfer of crime suspects across national jurisdictional borders to face trial in potentially unfamiliar geographic locations or legal cultures (see Gless, 2015).…”

“…This structure aims to provide more direct transnational justice cooperation by attempting "to remove geographic boundaries through a form of centralisation" based on mutual trust in the operation of the established justice institutions of nations that are part of the EU (Warren & Palmer, 2015, p. 341). However, this regime is also criticised for prioritising the interests of the EU and national justice agencies at the expense of preserving the due process rights of individuals subjected to these streamlined procedures (Gless, 2015). It also raises significant questions about whether trust in transnational legal relations and international comity can extend beyond the EU, while retaining some degree of protection for individuals suspected of engaging in transnational crimes.…”

Psychiatric and legal issues surrounding the extradition of WikiLeaks founder Julian Assange: The importance of considering the diagnosis of autism spectrum disorder.

“…Most concerns regarding the welfare of an extraditee are dealt with during the criminal trial following extradition. This means the individual has limited authority or power during the surrender process (Arnell, 2013; Magnuson, 2012; Ross, 2011), despite a recent push toward global uniformity of human rights protections, their enforcement and defendant-centered approaches that prioritize consideration of the needs and protection of individuals (Gless, 2015; Magnuson, 2012).…”

Lawful Illegality: Authorizing Extraterritorial Police Surveillance

“…We argue rulings that favor the unconstrained interterritorial use of NITs by police agencies may influence a permissive approach under US law regarding the admissibility of evidence derived from extraterritorial surveillance. We suggest that the ensuing suspension of geography to curtail US police surveillance erodes due process for individuals who are located outside of the US and are suspected of entering honeypot websites that are operated by US police agencies (Walden and Flanagan 2003;Ghappour 2017;Russell 2017;Gless 2015).…”