Criminal Law Forum (2014) 25:569–572 DOI 10.1007/s10609-014-9238-8

Ó Springer Science+Business Media Dordrecht 2014

Book Review

ILIAS BANTEKAS*

BOOK REVIEW

Reviewing: Martin Bo¨se, Frank Meyer and Anne Schneider (eds.), Conflicts of Criminal Matters in the European Union, Volume 1: National Reports and Comparative Analysis‘ (Baden–Baden: Nomos, 2013), 464 pp, ISBN 978-3-8329-7746-7. Samuli Miettinen, Criminal Law and Policy in the European Union (Abingdon and New York: Routledge, 2013), 248 pp, ISBN 978-0-415-47426-9. Michael N. Schmitt, Tallinn Manual on the International Law Applicable to Cyber Warfare (Cambridge: Cambridge University Press, 2013), 282 pp, ISBN 978-1-107-61377-5. The field of EU criminal law is now distinguishable from its fatherfield of international criminal law (although I accept that some EU criminal lawyers may in fact dispute the legitimacy of this lineage). In fact, one can certainly claim not only are they distinct but that the sources and scope of EU criminal law is even alien, to a large degree, from its more global counterpart. No doubt, whereas international criminal law developed chiefly through custom (e.g. in the case of piracy jure gentium and crimes against humanity) and treaty law (e.g. in the case of war crimes, grave breaches and transnational crimes such as drug trafficking and organised crime), EU law cannot be said to exist outside the primary EU (or EC) legislation granting relevant competences to EU institutions and member states. Of course, this is just one way of looking at the issue at hand because ultimately the origin of the substantive and procedural criminal law of the EU is in domestic legal systems and international or transnational law. * Professor at Brunel Law School.

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The book by Miettinen is a wonderful example of a treatise that firstly delineates its boundaries, chiefly by drawing up its list of sources, then going on to analyse in significant detail all the parameters of its object of observation. The focus of the book is clearly on what constitutes this creature we call EU criminal law and the author’s starting point is the criminal law competences granted by primary and secondary EU legislation. In this respect, the subject matter of the book does not depart at all from the way it has been conceived by other authors.1 This observation notwithstanding, the Miettinen book takes a far broader approach to its predecessors and examines – although always with a view to EU law – the way in which this body of law interacts with its international environment; this, however, is rather limited because as the title of the book suggests the author is concerned with the limits of intra-EU criminal law and not its interaction with its broader international environment (as composed by treaties, custom, the UN etc.) and the competing jurisdictional conflicts among EU member states, which is the remit of the other book encompassed within this review. Perhaps the reason why the distinguished group of EU criminal law scholars limit their work to EU legislation is that their immediate expertise lies principally in EU law and secondly in criminal law, as opposed to international law and international criminal law. Even so, there is no need to limit the scope of EU criminal law competences to the Union’s narrow sphere. Surely, there is something equivalent to an EU external relations in the criminal sphere as there is to its general external relations. Equally, EU institutions routinely stretch the boundaries of their work in the criminal sphere by assisting, facilitating or undertaking arrests and prosecutions in far-away places such as Puntland in their quest for pirates and have a stake in the operation of the permanent International Criminal Court and the functioning of the principle of universal jurisdiction (particularly as the recent tirades by the African Union have amply demonstrated). These are just a handful of indicative examples for which much scholarly ink has been shed and in my opinion highlight the fact that there is more to EU criminal law than its competences dimension; much more. This is not meant as a critique of the book as such but the perceived scope of EU criminal law and its artificial divorce from general international law and international criminal law. Otherwise, this book is one of the best scholarly treatises on the subject and provides wonderful insights.

1

See, V Mitsilegas, EU Criminal Law (Oxford: Hart, 2009).

BOOK REVIEW

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The second book by Bo¨se et al. picks up from Miettinen in several complementary ways. For one thing, the rationale of this book is to distinguish jurisdictional conflicts based not only on EU institutional criminal legislation, but also how such jurisdiction is established by reference to custom and treaties (other than EU treaties) and applied in practice. Hence, this book examines, to some degree, the interaction existing between EU member States legal systems with EU institutional criminal law and general international criminal law. The chief advantage of this book is that its analysis is based on the work of national contributors, all distinguished criminal law scholars in their own jurisdictions and it is no wonder that the final outcome is admirable and provides a wealth of treasure to the reader. International lawyers, such as myself, with an interest in general international criminal law, rarely possess a good enough (or in-depth) expertise in EU criminal law and as a result the dual interaction of EU criminal law and general international criminal law with respect to jurisdictional competences is only clear from one dimension. This book aptly provides the reader with a perspective as to how the two systems interact in practice. From this perspective the results are unique and the book should provide a wealth of information to those interested in the resolution of criminal conflicts of jurisdiction. International criminal lawyers are acutely aware of the fact that there does not exist a single binding mechanism that purports to definitively resolve such conflicts, despite the fact that all relevant conventions typically incorporate a provision setting out applicable jurisdictional principles. However, there does not seem to be any hierarchy between these, although scholars usually suggest that the territorial state should have primary jurisdiction, albeit in practice it is the state with physical custody of the alleged offender that is the final arbiter of jurisdiction, which in turn will either prosecute itself or extradite under its own criteria (one of which may be the existence of a bilateral extradition treaty). One of the qualities of the Bo¨se et al. book is that it examines jurisdictional conflicts between EU member states on the basis of the interaction of EU law and international criminal law and the manner through which this process works in practice; all else is merely theoretical and the national insights into this process are important to international criminal lawyers who usually deal with the issue of jurisdiction (and its conflicts) as being a minor one. The final book would not only ordinarily have a place in the review of books concerned with EU criminal law. It deals with a long-

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standing project comprising a number of scholars and military experts engaged with the topic of cyber warfare with the aim of formulating a groundwork of rules that are based (by analogy or mutatis mutandis) on existing rules, such as the UN Charter, the laws of war and others. The project set out no less than ninety-five such rules, all of which, as already mentioned, are predicated on both treaty and customary law. Cybercrime and cyber-activities have occupied EU institutions in the past, in addition to being a continuous issue for the EU in both the civil and criminal field. One need only recall the extensive work towards a European criminal record, the work of OLAF, electronic commerce, networks etc., just to get a feeling of the significance of cyber activities in EU policy and institutional architecture. Although it is true that many of these activities fall far short of anything amounting to cyber warfare, given that the concept is a process of development and gradual evolution, it is not unlikely – in fact, quite the contrary – that cyber attacks against key EU mechanisms and the institutional capacities of member states (including their critical infrastructures) may (or alternatively their effects may) amount to a cyber attack in the same sense as an armed attack under Article 51 UN Charter or an unlawful use of armed force under Article 2(4) of the UN Charter. Even so, there is no mention in this book of any contributions by the EU on the issue of cyber warfare, unless the EU believes that this is a matter for the NATO-dimension of its member states. Such an explanation is inconceivable given the broad competences of the EU in the field of security and in any event it would be contrary to the pursuits of an organisation that would not want to rely on the USA to deal with such matters within the process of NATO. This is yet a further criticism against the notion that EU criminal law should be defined by reference to its internal dimension and operation and not on the basis of the evolution of international issues and rules. This book by Schmitt is an exceptionally comprehensive account of the Tallinn rules in the form of a commentary that deserves to be read by any scholar, lawyer, student or government expert interested in the laws of war and the use of force, and obviously to those with an interest in general international law. It is highly realistic and not merely aspirational as many works on emerging topics usually are.