Transnational Organized Crime

1) Describe the role and function of the Transnational Organized Crime Convention and the Convention’s relationship to its Protocols.

The United Nations Convention Against Transnational Organised Crime (also known as the ‘Palermo Convention’) has attached to it the Protocol Against the Smuggling of Migrants by Land, Sea and Air 2000, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, and the Protocol Against the Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components and Ammunition.

The United Nations Convention Against Transnational Organised Crime was adopted by General Assembly resolution 55/25 of 15 November 2000 and is “the main instrument in the fight against transnational organized crime”. It entered into force on 29 September 2003.

States that ratify the instrument commit to taking a series of measures against transnational organized crime, including the creation of domestic criminal offences; the adoption of new and sweeping frameworks for extradition, mutual legal assistance and law enforcement cooperation; and the promotion of training and technical assistance for building or upgrading the necessary capacity of national authorities.

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The United Nations Convention Against Transnational Organised Crime and its Protocols are not human rights instruments in themselves, but have instead been described as providing “treaty framework to help states unite to combat transnational organised crime”. One commentator views the Convention and its Protocols as a framework of guidance which needs “filling in”, particularly in the areas of the exchange of information, the registration of biodata and the building of common entrance policies. The Protocols are not binding upon signatories of the Convention itself unless the signatory also becomes a party to the Protocol.

The United Nations Convention Against Transnational Organized Crime states itself that its purpose is “to promote cooperation to prevent and combat transnational organized crime more effectively”. Article 3 provides that the Convention applies to a range of offences that the Convention criminalizes when they are transnational in nature, and then spells out that such an offence is transnational in nature if: (a) It is committed in more than one State; (b) It is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State; (c) It is committed in one State but involves an organised criminal group that engages in criminal activities in more than one State; or (d) It is committed in one State but has substantial effects in another State. The Protocols then add to the list of crimes contained in the Convention.

As Kofi Annan states in the foreword to the Convention Against Transnational Organized Crime, “Criminal groups have wasted no time in embracing today’s globalized economy and the sophisticated technology that goes with it. But our efforts to combat them have remained up to now very fragmented and our weapons almost obsolete. The Convention gives us a new tool to address the scourge of crime as a global problem. With enhanced international cooperation, we can have a real impact on the ability of international criminals to operate successfully and can help citizens everywhere in their often bitter struggle for safety and dignity in their homes and communities.”

2) What do we mean by the term ‘securitisation’ of transnational crime? Do you think policies that ‘securitise’ TNC are useful?

In basic terms, the securitisation of transnational crime means the movement of legislative bodies from viewing crime in a cultural, social, economic and/or legal context to viewing transnational crime as a matter of national security.

The Copenhagen School defines the concept of securitization: “Securitization refers to the process of presenting an issue in security terms, in other words as an existential threat”. Transnational crime may be presented as an existential threat to the security of nations through the discourse that political leaders utilise, but also through others. Transnational crime has been referred to as a security issue in the academic literature. McFarlane and McLennan claimed in 1996: “Transnational crime is now emerging as a serious threat in its own right to national and international security and stability”.

In modern times, forms of transnational crime in the Asia Pacific have been securitized - that is, represented by policy elites and security actors as crucial or existential threats to national and regional security.

At the first summit of ASEAN heads of state and government held in Bali in 1976 President Suharto declared: “Our concept of security is inward looking, namely, to establish an orderly, peaceful and stable condition within each territory, free from any subversive elements and infiltration, wherever their origins may be”. Galeotti has recently indicated that “the struggle against organized and transnational crime will be the defining security concern of the twenty-first century”.

As Emmers states “transnational crime poses a threat to states, national economies and civil societies.” He provides the example of non-state actors using terrorism to promote their political causes. In his opinion the groups are able to gain strength from their ability to forge links across national boundaries and in turn are able to threaten national sovereignty and the integrity of independent states with the result that they can effectively threaten the survival of the governments of those states. However, it is not just terrorism which may be ‘securitized’, other forms of transnational crime affect states and their societies. As Emmers again notes, “drug trafficking and money laundering reduce a government’s capacity to govern, weaken the credibility of financial institutions and undermine social order”.

Nevertheless, Emmers has also expressed the opinion that the problem of transnational crime could be dealt with more effectively if it was approached primarily as a criminal matter rather than as a security issue. He notes that the concept of securitization of transnational crime can work better in some nations than others, depending on the commitment shown by those nations to tackle transnational crime in a security driven way.

Comparing the US and the ASEAN states he says that in the US the securitization rather than the criminalization of terrorism has allowed the US to use more traditional security responses against al-Qaeda, with the obvious rhetoric being “War on terror”. It may therefore be argued that where a state is prepared to tackle transnational crime in traditional, often military, ways, policies that securitize transnational crime are indeed useful.

However, it has been argued by Emmers that where states are not prepared or are unable to tackle transnational crime in a traditional security based way, criminalization rather than securitization, should take precedence. As Emmers states: “In the context of Southeast Asia, ASEAN may be advised to further rely on the criminalization of transnational crime, as it does not dispose over the collective will, joint political instruments and military capabilities to match its rhetorical claims about security”. He also argues that transnational crime being seen in a criminal context rather than a security one could lead to better results. In his 2002 paper he suggests that criminal activity cannot be solved by resorting to the traditional security means, such as army activation and concludes: “The US war on drugs in Columbia and its failure to reduce the supply of narcotics in America is testimony to that reality.”

3) Briefly describe the role of globalisation in modern TNC.

In order to describe the role of globalisation in modern transnational crime, it is useful to consider what ‘globalization’ really means. As Gros states, “globalization does not mean the same thing to all people” and therefore there is “confusion around what it is and what it does”. Gros defines globalization as “the deregulation of national economies and financial markets, on the one hand, and their international integration under the aegis of free-market ideology on the other”.

In policy terms, globalization often entails the deregulation of capital flows, eviction of the state from areas that concern production and the privatization of former state-owned enterprises, reduction in the size of government, trade liberalization and the creation of large trading blocs.

Wright argues that the globalization of business serves to foster organized crime. He states that “In the case of organized crime (and arguably in the case of international business ethics) we should not be surprised at the failure of the invisible hand of the market to control malpractice.” Furthermore, he states that it is “for this reason, at least part of the solution to the problem of organized crime is not connected to law enforcement at all ... It is connected to the further development of the free associations of civil society which can influence government policy and eventually relegate organized crime to the status of a fringe activity.”

The impact of globalization on transnational crime can be seen by looking at examples from previously communist and less capitalist regimes. As Sanz and Silverman explain, in the past 30 years or so Communist countries throughout Asia and the Pacific rim have moved toward a more capitalist economic system. These countries’ business communities have welcomed capitalism because it provides more entrepreneurs to achieve greater independence and a richer standard of living.

This economic shift in turn receives support from foreign investors. Furthermore, the general population also embrace the capitalist system because it is able to provide new goods and services. As Sanz and Silverman conclude, “such changes bring us closer to a global economy which will open new markets and expand opportunities for both legitimate and criminal entrepreneurs”.

This can be seen in Poland where, “many new kinds of economic and financial crimes appeared along with the free-market economic system – crimes that had been typical and known for decades in capitalist countries but which had not appeared in Poland for the past 45 years”.

The voluntary relaxation or involuntary loss of state control domestically and at international borders coupled with the fact that mechanisms of state governance and incidents of sovereignty have been lost, altered, or sacrificed to produce domestic economic change and promote international trade mean an increase in the ease with which international criminals can operate. As Myers states: “while this is a gross simplification of the complex issues unique to each state individually, and to regional and global alignments generally, it points to salient factors, which have permitted criminal groups whose activities had domestic, regional or limited international impact to become transnational in scope.”

4) What role does technology play in modern TNC, both from the point of view of assisting TNC and assisting its interdiction?

Following on from the impact of globalization on transnational crime is the impact of technological advances. As McFarlane comments, technology enables and increases the capacity of “transnational organised crime and terrorist groups to exploit advances in electronic banking, encryption, telecommunications, developments in global travel and commerce, and … visa free regimes”.

Furthermore, it may be difficult for law enforcement agencies to keep pace with the developing technologies which are capable of being exploited by criminal groups. As McFarlane states, “transnational organised crime and terrorist groups are usually small and flexible organisations capable of ‘buying the best brains’ to enable them to respond to new technologies more quickly than slow, bureaucratic government agencies”.

One particular consideration is the technological advancement of travel (for example speed boats and aeroplanes). It is true that the technological advancement of transportation has had the effect of bringing Southeast Asia closer to Western markets with a quick and, relatively speaking, safe method of moving contraband. As Sanz and Silverman suggest, “global criminal ventures are now facilitated by the ease of catching a flight and quickly travelling to a country in which one is virtually unknown to the authorities”.

As well as making contact between criminal organizations quicker and more accessible, allowing easily planned and accomplished transnational crimes, technological advancements also make the perpetration of certain crimes easier and has even brought new crimes into existence. Again, Sanz and Silverman comment “technological advancements… make it easy to counterfeit nearly anything from currency to clothing to watches. Technology has also made it relatively easy to obtain a new identity. Medical advances have created a growing demand for human organs, while technological growth has created a market for trade secrets and information about new product research.” Since the break-up of the Soviet Union there has also been, of course, a development of a black market in high tech and nuclear weapons.

In terms of transnational criminal finance, technology has had a very important role to play. As Glynn et al. (1997: 12) note, “the emergence of an electronic financial system markedly enhances opportunities for corruption, the difficulty of controlling it, and the potential damage it can inflict.” Indeed, Gros notes that anyone can move currency around the world, with at least some delay in being caught. He goes on to suggest that transnational criminal organizations are able to recognize opportunities not only in terms of transportation but also with regards the “fluidity of money markets” allowing for “movement of illicit profits in and out of countries that are at the epicentre of globalization.”

However, technology is not all bad in the fight against transnational crime. For example, the tracing of transnational crime has been made easier by technology in that money can now be tracked across borders through the international banking system. See Dobinson for an interesting case study of how $40 million US dollars was traced across Australia and Hong Kong.

Advances in technology also allow law enforcement agencies to update their national systems quicker, alert border control authorities and potentially enable the passing of information between states more efficiently, enabling transnational crime to be prevented, controlled and prosecuted more effectively.

5) What impact have the provisions for Mutual Legal Assistance and the Exchange of Information in the Transnational Organized Crime Convention had on the sharing of intelligence multi-laterally?

As one commentator notes, “obtaining physical custody of fugitives means little absent the evidence needed to convict them at tria”l. MLATs provide assistance at all stages of criminal investigations and prosecutions. Available assistance under MLATs includes bank or other financial records, witness statements and testimony, search and seizure of people and things, and immobilization and forfeiture of the proceeds of criminal activity.

As an example of how a MLAT has worked in practice, in 1997 the US made an MLAT request to Canada on behalf of prosecutors who were investigating a murder. Pursuant to the request, the US sought and obtained from the Canadian authorities the murder suspect’s car, copies of airline ticketing records, billing information and other evidence which was then used to secure a conviction.

However, in the absence of a specific treaty provision, there is no mechanism whereby parties can be obliged to use formal mutual legal assistance provisions to obtain evidence abroad. In Re Sealed Case the US Court of Appeals rejected the argument that US law enforcement agencies were limited to obtaining evidence in accordance with the provisions set out in a mutual legal assistance treaty signed by the Swiss and US Governments.

The appellant refused to comply with a subpoena to appear before a US court to produce documents relating to Swiss companies. Rejecting the argument that compliance with the request would be contrary to Swiss secrecy laws and in breach of international comity, the court held that it could ‘order any party within its jurisdiction to testify or produce documents regardless of a foreign sovereign’s view to the contrary.

In Southeast Asia, the picture is complicated, with intelligence sharing and cooperation proving successful but only where the information is not of a nature that will challenge the political rulers of the states. As Emmers recently concluded, there has been success between Sinapore, Malaysia and the Philipines in the context of exchanged information, particularly leading to extradition proceedings. As recently as April 2007, Singapore and Indonesia signed an Extradition Treaty in order that terrorist suspects can be dealt with in the appropriate legal systems. However, despite these examples of bilateral cooperation, Southeast Asian states “resist sharing sensitive information on domestic matters that could embarrass or challenge the political positions of ruling elites”.

Furthermore, difficulties in information sharing and mutual legal assistance may arise where there is a difference between the legal systems of the relevant states. For example, countries which have no mutual legal assistance treaties with Italy have tended to attract Mafia criminals, yet even where agreements have been in place other members of the Mafia have been able to live openly despite the existence of serious criminal charges outstanding against them.

Jamieson provides an example of when the jurisdiction of the requested country does not acknowledge the Italian crime of membership of a mafia-type association or, as in the case of the Netherlands and Germany, where crimes of conspiracy do not exist there is a loophole created. The case of the camorra member Michele Zaza exemplified this: Zaza was wanted in Italy since 1984 on charges relating to his purported Mafia association, as well as murder and drug trafficking. His extradition was sought by Italy, however, he was allowed to live openly in France (apart from serving a two year sentence for cigarette smuggling). In fact it was not until 1993 that he was finally re-arrested and extradited to Italy, where he later died in jail.

As well as the more ‘pure’ forms of mutual legal assistance provided for in modern times, training has also been an important part in collaboration. Peter Gastrow, a Special Adviser to the Minister of Safety and Security in South Africa identified the police force there as benefiting from international expertise in several areas including: detection and investigative methods; narcotics trafficking; motor vehicle thefts and smuggling; white collar crime, including money laundering and fraud; official corruption; and cross border arms smuggling.

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