TRANSNATIONAL CRIMINAL LAW “There is no fortress so strong that money cannot take it” Mian Ali Haider L.L.B., L.L.M (Cum Laude) U.K. THE CONCEPT OF TRANSNATIONAL CRIMES Transnational crime is not a modern phenomenon. Transnational crimes have been perpetrated for as long as borders have separated neighboring countries. What is new about transnational crime? During the last several decades, is the scope and magnitude of activity and the increasing impact that it is having on the world. Three related factors have impacted transnational crime Globalization of the economy, rises in the numbers and the heterogeneity of immigrants, Improved communications technology There is widespread agreement that transnational crime exists, there is less agreement on a common definition. There are ongoing discussions on defining transnational crime, and the implications of an exact definition on research, enforcement, and public policy. No single, universally agreed upon definition has emerged. Scholars have not identified a paradigmatic transnational crime organization because they are so complex and diverse in their licit and illicit activities. The sheer number of transnational organized groups, coupled with their diverse languages and cultures, and their loosely structured, flexible, and highly adaptable organizations makes them extremely difficult to often define and understand. DEFINITION BY U.N.(1995) 1. 2. 3. Despite these difficulties several general traits can be identified that are common among most “transnational” crimes. The working definition of transnational crime that will be used for the purposes of this Lecture is taken from the United Nations, and it defines transnational crime as “offenses whose inception, prevention and/or direct effect or indirect effects involved more than one country”. To further qualify this definition, three different broad categories are included in our working definition of transnational crime, including: sole offender transnational crime that involves a single perpetrator engaging in criminal activities that cross national boundaries; transnational organized crime that involves sophisticated criminal organizations; Transnational crime that involves well-organized criminal operations that cross national boundaries but are not affiliated with a major criminal organization Aut Dedere Aut Judicare The principle of aut dedere aut judicare (Latin for "extradite or prosecute") refers to the legal obligation of states under public international law to prosecute persons who commit serious international crimes Where no other state has requested extradition. This obligation arises regardless of the extraterritorial nature of the crime and regardless of the fact that the perpetrator and victim may be of alien nationality. The rationale for this principle is to ensure that there are no jurisdictional gaps in the prosecution of internationally committed crimes. It is, however, unusual for States to be required to exercise this jurisdiction because often another State party will have an interest in the matter and will apply for extradition. In this situation that State will have priority. Some contemporary scholars hold the opinion that aut dedere aut judicare is not an obligation under customary international law but rather “a specific conventional clause relating to specific crimes” and, accordingly, an obligation that only exists when a state has voluntarily assumed the obligation. EXTRADITION The modern word extradition is perhaps derived from the practice which was called “extra-tradition” because it was against the traditional hospitality offered to an alien by a state who had allegedly committed an offence and sought refuge or asylum to save himself from prosecution or punishment. The term extradition has its origin in the Latin word “extradere” which means forceful return of a person to his sovereign. RECIPROCITY Reciprocity is one of the legal basis for extradition in the absence of a treaty which is a part of international principles of friendly cooperation amongst nations. Reciprocity, as a substantive requirement of extradition (whether based on a treaty or not) arises with respect to various specific aspects of the process DOUBLE CRIMINALITY Double criminality refers to the characterization of the relator’s criminal conduct in so far as it constitutes an offence under the laws of the two respective states. The general rule is that the offence in respect of which extradition is requested must be an extraditable offence not only under the law of the requesting state but also under the law of the requested state. No state is under any legal obligation to deliver up a fugitive offender to a foreign state on its demand if the person so demanded is charged with an offence, which is a crime under the law of the demanding state only but not punishable under the legal system of the state of refuge. The principle of double criminality can also be termed as the identity rule. The role of double criminality gives rise to sometimes difficult promises mainly for the reason, firstly, because of variation of laws and institutions in the two countries and secondly because the act charged does not amount to a corresponding crime. THE DOCTRINE OF SPECIALITY The doctrine of specialty embodies the theory in international law that compels the requesting state to prosecute the extradited individual upon only those offences for which the requested country granted extradition. This doctrine is premised on the assumption that whenever a state uses its formal processes to surrender a person to another state for a specific charge, the requesting state shall carry out its intended purpose of prosecuting or punishing the offender only for the offence for which the requested state conceded extradition. The doctrine of specialty developed to protect the requested country from abuse of its discretionary act of extradition. Law Dealing with the Principle A wide array of international instruments now contain provisions for aut dedere aut judicare. 1949 Geneva Conventions, UN Convention for the Suppression of Terrorist Bombings, the UN Convention Against Corruption, the Convention for the Suppression of the Unlawful Seizure of Aircraft, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention for the Protection of Cultural Property in the Event of an Armed Conflict, and the International Convention for the Suppression and Punishment of the Crime of Apartheid. Trans-national Mafias ‘Export’ of illegal activities through immigrant links (e.g. Sicilian mafia in the US) Activities expanding to cross-border illegal trade, use of open frontiers Case Study: Russian Organised Crime Rampant growth since 1991 – economic liberalism has created a new class of ‘entrepreneurs’ – – – – racketeering, corruption, intimidation of businesses and public officials, money laundering and extra-judicial killings/assassinations. Seen throughout Central and Eastern Europe as well as US (Brighton Beach) Involved in prostitution and people trafficking rings in Western Europe (along with Eastern European gangs) (Ambiguous) Typology Types of criminal activities – Labour racketeering/extortion – people trafficking – Drug trafficking – goods trafficking/conflict goods – Price-fixing – Illegal gambling – Prostitution – Extortion rings – Private terrorism Types of Organisations – Sicilian Mafia, Russian Mafia, Chinese Triads… – Drug Cartels – Conflict Goods Networks – Mercenaries/private security firms (?) E.g. ‘Executive outcomes’ – Illegal migration networks Linked to people trafficking These may overlap! OPERATING TECHNIQUES OF TRANSNATIONAL CRIMES Although international criminals and terrorists have different motives, both types of transnational criminals use similar methods to execute their crimes. Violence is a central tool of their criminal arsenal, providing internal control and a highly visible external weapon. Both groups use many less visible techniques Internet, satellite phones, and cell phones – finding them essential to maintaining their organizations and committing their crimes. Money laundering and corruption – collusion remain important tools for transnational criminals, a more striking confluence is found in the ways that both engage in organized criminal activities to further their ends. Illegal Drug Trafficking Drug trafficking is now the largest source of profits for both international organized crime groups and terrorists IMF estimates that trade in narcotics is now 2 percent of the global economy, while the UN estimates it is 7 percent of international trade. narcotics production is often cited as a factor for the rise of the Taliban and Al Qaeda in Afghanistan and the Islamic Movement of Uzbekistan throughout the Central Asian Republics. In many parts of the world, drug sales are used to help support terrorist activities. This nexus of drug crime and terrorism occurs in Colombia (the FARC), Afghanistan (Taliban), and Sri Lanka (the Tamil Tigers). The nexus between terrorism and narcotics is not limited to the developing world. E.g., the Aum Shinrikyo cult responsible for the sarin gas attack on the Tokyo subway in 1995 was also one of the most significant producers and distributors of methamphetamines in Japan, rivaling the well-entrenched Yakuza organized crime syndicates at the time. Many of these groups are involved in more aspects of the drug trade than just cultivation, helping transport and even distribute drugs. The linkages between terrorism and narcotics has been described as narcoterrorism, which policymakers and scholars alike have studied since the coining of the term in the mid-1980s Much of this research dates back to the activities of the Sendero Luminoso in Peru, a terrorist organization that operated in conjunction with coca producers in the high valleys of rural Peru. The term is also associated with the problems combating the Medellin and Cali cartels in Colombia, and is most often applied in a contemporary sense to the numerous Colombian guerrilla factions. Reflecting this trend, the US security community in the late 1990s began to focus on “transnational threats,” a term that combined narcotics trafficking, arms proliferation, organized crime, terrorism, and cyberwarfare Drugs and Latin America: major producer – Cocaine (Bolivia, Columbia, Peru) – Heroin (Mexico) – Marijuana (Mexico, Jamaica) Key economic sector – but ‘shadow economy’ Trans-border networks are key to operations (focus is US market) American ‘War on Drugs’ – this type of OC has been defined as a security threat with security responses – Invasion of Panama – Plan Columbia – ‘Shiprider’ Agreement UNODC technical assistance in strengthening the rule of law and criminal justice reform Governance, Human Security and the Rule of Law Section/ Division of Operations Organized Crime and Criminal Justice Section/ Division of Treaty Affairs CRIMINAL JUSTICE AND THE FIGHT AGAINST ORGANIZED CRIME “Recognizing also that effective criminal justice systems based on the rule of law are a prerequisite for combating transnational organized crime, trafficking in human beings, terrorism, corruption and other forms of transnational and domestic criminal activity” (ECOSOC resolution 2005/21 of 22 July 2005) UNODC considers that a robust, holistic and prevention-focused response to organized crime includes the adoption of effective crime prevention measures and the establishment of fair, efficient and effective criminal justice systems based on the rule of law. UNODC assists States in developing strategies to prevent crime and reform all aspects of their criminal justice systems, in accordance with UN standards and norms. UNODC STRATEGY 2008-2011 Under its “Rule of Law” component, the Strategy identifies two main objectives: (a) promote, at the request of Member States, effective responses to crime, drugs and terrorism by facilitating the implementation of relevant international legal instruments; and (b) promote, at the request of Member States, effective, fair, and humane criminal justice systems through the use and application of United Nations standards and norms in crime prevention and criminal justice CRIMINAL JUSTICE AND THE FIGHT AGAINST ORGANIZED CRIME Fair, effective and humane criminal justice systems based on the rule of law require: – Independent and professional judiciary and prosecutorial services – Trained police and prison authorities, that understand and respect the balance between law enforcement and human rights, and the need for integrity and resistance to corruption – Efficient case management and monitoring systems. Programme in Southern Sudan Justice system devastated by two decades of conflict Initial focus on reforming prisons Technical intervention to improve human rights: – Leadership training – Vulnerable groups (women, children, mentally ill) – File management – Prison health Emerging integrated programme: anti-corruption, mobile courts and access to justice UNODC project office integrated into UNMIS Rule of Law Detainee file management systems Vulnerable groups Leadership and staff training Development regulations and policies UNDP Infrastructure development Programme in Guinea Bissau Unable to respond to threat of drug trafficking and organized crime: justice institutions devastated by conflict Close co-operation with PBC and UNOGBIS Integrated programme across several mandate areas Technical intervention to bolster state capacity Combating illicit trafficking Courts and the Judiciary Specialized unit within the Judicial Police Strengthening courts and access to justice Reforming the prison system Training, refurbishment and information systems Way forward Requirement for sustained engagement Integration of rule of law programming into peacekeeping missions, one-UN and joint programming From projects to integrated programmes UNODC comparative advantage: specialized criminal justice expertise within human rights framework Specific UNODC tools/practical materials as a resource for wider UN system (UN ROL network) Respond to the growing requests while maintaining high-quality technical assistance with national ownership 22 Money Laundering Is the movement of illicit funds for the purpose of concealing the true source, ownership or use of the funds Monetary proceeds derived from criminal activity are transformed into funds with an legal source Money laundering provides the fuel for drug dealers, terrorists, arms dealers and other criminals to operate and expand their enterprises. In 1996, the aggregate size of money laundering in the world may be between 2% and 5% of the world’s gross domestic product. Estimated the size of the money laundering is over $500 billion annually. Using 1996 statistics, money laundering ranged between US Dollar (USD) 590 billion and USD 1.5 trillion. Washing Dirty Money Placement physically moving and placing the funds into financial institutions or the retail economy Layering multiple and sometimes complex financial transactions are conducted to further conceal their illegal nature Integration illicit funds re-enter the economy disguised as legitimate business earnings (securities, businesses, real estate) Dirty Money Flows Domestic Returning Inbound Outbound Flow-through Crime and Migration Migrating populations are vulnerable and often hard to account for – Most migration is illegal – Most migration is based on dire economic needs (‘Economic refugees’) from the Global South – Most migrant have families depending on them ‘back home’: cannot afford to fail – Most migrants cannot speak the local language or know the law Criminal gangs are often the only way ‘in’ given increasingly tough immigration control – Gangs are often recent immigrants themselves using their contacts on both sides Cost is prohibitive and often paid through ‘slave labour debt’ - migrants have no legal recourse Using the same network as goods being trafficked (stolen goods, drugs…). What is the line between goods and people trafficking? Women’s Trafficking prostitution or sexual slavery? Trafficked women are abducted or duped, ‘broken in’ by the gang, and then prostituted to pay an immigration debt or through threats to them and family – E.g. Sub-saharan African women in Italy, women from the Balkans in the UK… – Different from prostitution: no consent, no money…high risks of battery, STIs and long term mental health problems Estimate 700,000 women and children a year: core human security concern? Why would women take such risks to emigrate illegally? – linked to gross economic inequalities Fuels shadow economies linked to other illegal activities Shows failure of immigration regimes (and prostitution laws) Children’s trafficking (male and female) for peadophile prostitution rings Crime and War Economies Wars create ‘law and order’ vacuum which criminals fill: – Sometimes black market economy is the only way to get basic goods during wars… – But goods traffickers have a vested interest in the conflict not ending – they may become actors in the conflict! Other side of the coin: – Parties in civil wars fund their activities through criminal activities – export and import… Trans-border involvement to destabilise neighbours and exploit their resources illegally (conflict diamonds in Sierra Leone) Estimated Revenue from Conflict Resources, Selected Cases Combatant Resource Period Estimated Revenue UNITA (Angola) Diamonds 1992-2001 $4-4.2 billion RUF (Sierra Leone) Diamonds 1990s $25-125 million/yr Taylor (Liberia) Timber Late 1990s $100-187 million/yr Sudan gvt Oil Since 1999 $400 million/yr Rwanda government Coltan (from DRC) 1999-2000 $250 million Taliban (Afghanistan) Opium, heroin Mid-1990s-2001 $30-40 million/yr Northern Alliance (Afghanistan) Lapis lazuli, emeralds, Mid 1990s-2001 opium $ 60 mill/yr Khmer Rouge (Cambodia) Timber Mid-1990s $120-140 million/yr Cambodia gvt Timber Mid-1990s $100-150 million/yr Burma gvt Timber 1990s $112 million year FARC (Colombia) Cocaine Late 1990s $140 million/yr Source: Michael Renner, The Anatomy of Resource Wars, Worldwatch Paper 162, October 2002, p. 7, Table 1. Blending Formula The organizational blending of legitimate and illegitimate activities is a hallmark of how transnational crime networks conduct their operations. The resources of the terrorists or the profits of international organized crime groups are combined with legitimate funds, making it hard to detect where criminal funds end and the legitimate funds begin. For example, the Bank of New York case in 1999 involved billions emanating from Russia, some which came from transnational activities of Russian organized crime. The money sent to the accounts in the Bank of New York represented wire transfers from Russian crime groups, as well as accounts from correspondent banks (banks in country where the foreign bank does not have its own affiliate to conduct its operations). The Al Qaeda organizations uses charities to move money. Funds going to the charities are, indeed, directed toward social welfare activities in the community, but a traditional 10 percent tithe, or sometimes a much greater share, is used to support terrorists. Conclusion Different definition and classification of offences? TC impacts on security both directly and indirectly Is it linked to other trans-national forces such as terrorist groups? – Overlap (e.g. GIA) in some cases, cooperation on WMDs the worst fear – Ultimately contradicting forces? Organised crime does not work in anarchy, it relies on state structures, stability. Can we treat TC and terrorism as a separate threat? Can a system dominated by states and economic inequalities reach the criminals, can it help the victims?