International Law And Transnational Organised Crime
Editors: Pierre Hauck and Sven Peterke
Publisher: Oxford: Oxford University Press, 2016. 555p.
Reviewer: Roger S. Clark | July 2018
The late Gerhard Mueller, a long-time member of the faculty of the Rutgers School of Criminal Justice in Newark, is credited with coining the term “transnational crime”, as a criminological rather than a juridical term, in his capacity as Executive Secretary of the 1975 Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. As a juridical concept, “transnational organised crime” found its way eventually into the title (and definition) of the 2000 UN Convention against Transnational Organised Crime (of which more later). This rich edited collection leans more to a broad criminological usage of the concept, although the authors are mostly legal academics from Germany and the UK, with the occasional Brazilian, Australian and New Zealander. The eclectic collection of criminal activities discussed are all subject to suppression conventions under which states accept treaty obligations to make the activities criminal under domestic law, and to cooperate with others in their repression.
The discussion is organized in five parts, entitled: General Questions; the UN Core Conventions on Transnational Organized Crime; Other Relevant International Regimes and Issues; Transnational Organised Crime as a Matter of Certain Branches of International Law; and Procedural and Technical Challenges for the Investigation of TOC – Policing, Technological Aspects, Efficiency, Exchange of Information, Abuse of Power, and Tactics for Conducting Investigations. While it contains a large amount of useful material, this is a book that few readers (other than your reviewer) will devour cover-to-cover. Aside from the evils of organised crime, there is no overarching theme addressed by all of the authors. Accordingly, the most useful thing a reviewer can do is describe each chapter briefly, so the reader can make decisions about which chapters she will find worth exploring.
Frank Madsen leads off the General section discussing historical evolution, linking current concerns back to efforts to deal with piracy and privateering, the slave trade, and other early forays against human trafficking. This leads into twentieth century campaigns against drug trafficking (generated particularly by the United States), the creation of Interpol in 1923, and global and regional efforts in the modern era. He touches on the importance of extradition, suggesting (p. 21) that “[a] main tool and perhaps the measure of success or failure in international cooperation against organized crime is constituted by extradition.” Surprisingly, given this significant observation, extradition does not have its own chapter in the collection and does not even appear in the index. Mutual legal assistance similarly receives some random references (and makes the index) but it too could have used a systematic treatment. Arndt Sinn follows Madsen with a useful treatment of “Transnational Organised Crime: Concepts and Critics.” He makes the important point (p. 25) about the value of definition (albeit somewhat loose) in “play[ing] a decisive role in national and international criminal law, in the design of investigative powers and prosecutorial instruments, in the distribution of police resources and as a motor for legal harmonization.” Thomas Feltes and Robin Hoffman then assay some interesting observations on Transnational Crime and its Impacts on States and Societies. They suggest (p.44) that “the research into the economic costs of crime has been quite rewarding over the past years” but raise some reasonable questions about “how to measure non-financial or indirect costs, such as the costs of policing and prosecution, the environmental degradation, the trauma and suffering of victims, their medical treatment and insurance costs, and the loss of confidence and trust in state institutions either among their own citizens or among other states or business partners.” Bernd Hecker follows with a thorough summary of the work done by the EU in the Fight against Organised Crime. The general part concludes with a chapter by Bettina Weisser on Transnational Organised Crime and Terrorism. Much of it is devoted to the historical evolution of terrorism and to global and regional efforts at its suppression. It also has some thoughts on the convergence between terrorism and organized crime, especially (p. 99) about terrorist funding from “engagement in the drug trade, kidnapping, trafficking in weapons, smuggling and money laundering.”
Part II, on the UN Core Conventions, begins with a very provocative chapter by Richard Vogler and Shahrzad Fouladvand on the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 and the Global War on Drugs. They argue (p. 107) that “a humanistic and philanthropic enterprise … supported by overwhelming international sentiment has become distorted by state policy and international criminality to become the source of wars, offending, disease, and loss of life on an unprecedented scale.” They are followed by an exceptional analysis of the UN Convention against Transnational Organised Crime 2000, by Neil Boister. The Convention does not itself enumerate any specific crimes, but it does define an offense as “transnational” for Convention purposes if it (a) 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 organized 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. Pragmatically, not all crimes in the category are included within the aegis of the Convention, but only “serious” ones, those “punishable by a maximum deprivation of liberty of at least four years.” There follow chapters discussing the Protocols to the 2000 Convention applying its general standards to specific areas, Trafficking in Persons (Hans-Joachim Heintze and Charlotte Lülf), the Smuggling of Migrants by Land, Sea and Air (Andreas Schloenhardt), and the Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components, and Ammunition (Aaron X. Fellmeth). The Part concludes with Michael Kubiciel and Anna Cornelia Rink on the United Nations Convention against Corruption 2003 and its Criminal Law Provisions, situating the topic nicely as the gift of the US Foreign Corrupt Practices legislation to the rest of the world, closely related to its exportation of the core of RICO legislation in the Organised Crime Convention.
Part III, on Other Regimes and Issues, begins with Transnational Organized Crime and the Anti-Money Laundering Regime (Louis de Koker and Mark Turkington). This chapter discusses laundering provisions in treaties such as the 1988 Drug Convention, the Council of Europe’s 1990 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime, and the 1996 Inter-American Convention against Corruption. But pride of place in affecting State behavior goes to the recommendations made by the Financial Action Task Force (FATF), an offshoot of the G-7 Group. This soft-law instrument has a surprisingly strong enforcement framework which carries more clout than the treaty regimes and also co-opts the private (especially banking) sector in the enterprise. This chapter is followed by Hennie Strydom’s account of another sectoral area, Transnational Organized Crime and the Illegal Trade in Endangered Species of Wild Fauna and Flora. The 1973 CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora) treaty emerged outside the UN structure, but is increasingly the subject of coordinated efforts by the CITES organs, Interpol, the UN Office on Drugs and Crime (UNODC) and the World Bank. CITES is complemented by the transnational crime and corruption treaties and by other regimes such as the Convention on Biological Diversity. Thorsten Müller then turns to Transnational Organised Crime and the Sale of Children, Child Prostitution, and Pornography. Several international instruments are relevant here, the 2000 Optional Protocol to the Convention on the Rights of the Child, the 1966 Covenants on Human Rights, the ILO’s 1999 Worst Forms of Child Labor Convention, and the Council of Europe’s 2001 Budapest Convention on Cybercrime. Bernard Kretschmer follows with an interesting chapter on Cultural Property which discusses protecting cultural property under the laws of armed conflict (very current with the International Criminal Court’s conviction of one of those responsible for destroying Islamic sites in Timbuktu), and UNESCO’s 1970 Convention on Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Dominic Brodowski then weighs in with a discussion of Transnational Law and Cybercrime. This chapter (which deliberately avoids issues of cyberterrorism, cyberespionage and cyberwar) concentrates both on crimes targeting information and communication technology, and on existing crimes committed using such technology.
Part IV deals with Transnational Organized Crime and certain branches of International Law. Pierre Thielbörger discusses the International law of Force, making some creative suggestions about whether the use of force can be justified against foreign territories from which organized crime groups operate, and whether addressing organized crime lies within the competence of the UN Security Council. Sven Peterke and Joachim Wolf make a first attempt at analyzing the extent to which International Humanitarian Law (or the laws of armed conflict) have something to say about transnational organised crime. Their conclusion (p. 405): “If one goes beyond the state-centric perspective that is embodied in codified IHL and considers violent conflicts of TOC groups with state and non-state actors, like that in Mexico, which resembles a [non-international armed conflict], it appears that a new type of armed conflict is emerging and that international legal doctrine is not yet able to address that satisfactorily.” Math Noortmann and Dawn Sedman then discuss Transnational Organisations and Human Rights, addressing the curious way in which human rights law and international criminal law have developed on separate tracks. They ask the questions whether thinking about transnational crimes as human rights violations is useful (at least some of the time) and the extent to which criminal organisations and their members are protected by human rights standards during criminal pursuit and prosecution. Alexander Proelss and Tobias Hofman then address the Law of the Sea and Transnational Crime. Several of the crimes noted in the book – piracy, human trafficking, drug trafficking and transport of weapons of mass destruction – involve the sea as a mode of transportation. They consider the various ways in which enforcement can take place involving flag states, port states and other states acting on the high seas with or without the consent of the state of registration of the vessel concerned. This is a good overview of the complicated jurisdictional issues, especially as in the United Nations Convention on the Law of the Sea. Pierre Hauck offers a chapter on Transnational Organized Crime and International Criminal Law. Scholarly literature increasingly draws a distinction between transnational or treaty crimes and those crimes that are contained in “International Criminal Law” or “International Criminal Law Stricto Sensu.” The latter are said to be crimes under international law and to have their origin in some deep rules of customary law. The lines are by no means clear, or immutable, and the authors discuss the way in which the negotiators of the 1998 Rome Statute of the International Criminal Court decided to exclude treaty crimes, notably serious drug offenses and terrorist crimes from the jurisdiction of the Court. They see no reason why that decision could not be reversed in the future, and also regard human trafficking as suitable for such treatment.
We arrive then at Part V, dealing with Procedural and Technological Challenges. Sheelagh Brady discusses Policing TOC – the National Perspective, a thoughtful summary of such techniques as legislation, intelligence gathering, electronic surveillance, undercover operations, forfeiture and seizure of assets, informants and whistleblowers, and witness protection. Frank Madsen then offers a final chapter on Policing Transnational Organised Crime – the International Perspective. He discusses the main international law-enforcement authorities and techniques of international investigations and introduces (pp. 506-7) his notion of an “epistemological rupture”, a “fundamental change in our understanding of international law enforcement” namely “random or bulk data collection [his italics] which is closely linked with the militarization of law enforcement and the increasing and, in the author’s view, unhealthy blurring of the boundary between law enforcement and the intelligence services.”
Madsen’s final thought (p. 510) is a good final one for this review: “[p]opulations around the world will have to decide how much of their privacy rights they are willing to forsake for security that can never be absolute.”