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
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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
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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)
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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
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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.
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EXTRADITION
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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.
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RECIPROCITY
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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
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DOUBLE CRIMINALITY
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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
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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
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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
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‘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’
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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
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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
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These may overlap!
OPERATING TECHNIQUES OF
TRANSNATIONAL CRIMES
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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
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 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.
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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
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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)
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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.
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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
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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
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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
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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
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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
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Money Laundering
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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
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Placement
 physically moving and placing the funds into financial
institutions or the retail economy
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Layering
 multiple and sometimes complex financial transactions are
conducted to further conceal their illegal nature
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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
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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
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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
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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
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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!
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Other side of the coin:
– Parties in civil wars fund their activities through criminal
activities – export and import…
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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
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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
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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?