Transnational Organised Crime

A Comparative Analysis

Tom Obokata, Brian Payne

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317389729
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Organised crime covers a wide range of activities, including drug trafficking, illegal trafficking of people, and fraud. The existence of a land border does not impede these operations; instead in many cases it is used to their advantage. In response, law enforcement strategies must include a transnational, multi-agency approach.

This book critically analyses the extent to which Northern Ireland and the Republic of Ireland have been successful in implementing effective action against transnational organised crime. It explores the adoption of key law enforcement strategies and measures in these jurisdictions, and evaluates how regional (EU law) and international (UN Convention) standards have been implemented at the national level. Drawing on interviews with over 90 stakeholders including the Department of Justice Northern Ireland, the Department of Justice and Equality in Ireland, the Police Service of Northern Ireland and An Garda Síochána, Tom Obokata and Brian Payne discuss the factors affecting the effective prevention and suppression of organised crime, particularly in relation to cross-border cooperation.

In exploring challenges of transnational crime and cooperation, this book will be of great use to students and researchers in international and transnational criminal law, criminology, and crime prevention.

1 International standards on action against transnational organised crime

1.1 Introduction

This chapter explores important international standards concerning transnational organised crime with particular reference to the UNTOC. It begins by identifying the definitions of organised crime, and then highlights core obligations imposed upon States, such as prohibition of organised crime and related crimes; establishment of criminal jurisdiction; the use of special investigative techniques; confiscation of criminal proceeds; and international cooperation. It will be shown that the overarching principles reflected in these obligations are the harmonisation of national laws and criminal procedures as well as mutual recognition of judicial/law enforcement decisions as these are designed to facilitate more effective international law enforcement cooperation. In addition, the protection and promotion of the human rights of victims and perpetrators of organised crime is discussed. The UNTOC is very weak in this regard. Therefore, reference will be made to international human rights law which imposes additional obligations upon States and supplements international law on transnational organised crime.

1.2 International standards on action against transnational organised crime

1.2.1 Defining organised crime

The most comprehensive treaty on transnational organised crime is the UNTOC which came into force in September 2003. According to Article 1, the main purpose of this instrument is to promote cooperation in order to prevent and combat transnational organised crime. The UNTOC has created a number of relevant standards and obligations to achieve this. The first important aspect is the stipulation of various definitions that should be adopted by States. The UNTOC does not provide a definition of ‘organised crime’ per se but rather it is to be understood as a ‘serious crime’ committed by an ‘organised criminal group’ and is defined as:

[A] structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this convention, in order to obtain, directly or indirectly, a financial or other material benefit.¹

Among the general public, the popular perception of organised crime has long been associated with the Italian Mafia. This was and still is a large, hierarchical criminal organisation that has been particularly evident in the United States (US) where it was known as La Cosa Nostra.² This idea of organised crime has been strongly influenced by the so-called ‘alien conspiracy theory’ that portrayed the Italian Mafia as ‘a coherent and centralised international conspiracy of evil’ which threatened the political, economic and legal systems of the US.³ It is worth noting that the term ‘organised crime’ was coined in that country at the end of the nineteenth century when the New York Society for the Prevention of Crime used the term to describe gambling and prostitution.⁴ At that time, the term referred to ‘illegal business deals involving politicians, police officers, lawyers or professional thieves’ and not to gangsters or Mafia-type criminal groups.⁵ This changed in the 1950s when the term began to be used to describe the Italian Mafia. It is evident that the above definition of an ‘organised criminal group’ under the UNTOC does apply to this type of criminal organisation as it refers to a structured group of multiple individuals existing for a certain period of time. Another example is the Japanese Yakuza. These groups have hierarchical structures with the bosses (oyabun) at the top, assisted by lieutenants (wakagashira) in the middle and lower ranking criminals at the bottom (kobun) of the pyramid.⁶

During the drafting stage of the UNTOC, however, it was decided that the term would also apply to non-hierarchical groups.⁷ Article 2(c) in this regard stipulates that a structured group does not have to have formally defined roles for its members nor does a group need to have continuity of its membership or a developed structure. This also seems to be in line with the scholarly debates, particularly within anthropology and political science, which took place in the 1970s outside the US.⁸ It was argued that the perception of organised criminal groups as being hierarchical was too simplistic and did not reflect the reality of contemporary organised crime.⁹ These scholars advocated a so-called ‘network model’ in which organised crime is understood to be carried out by a collection or network of individuals, small groups or departments collaborating with each other to varying degrees.¹⁰

Some examples indicate that many groups are indeed not hierarchical. Contrary to popular belief, the Medellin and Cali cartels in Colombia in fact consisted of ‘loose combinations of relatively small, family-based cocaine manufacturing firms that merely joined forces in the early 1980s’.¹¹ The network model also seems to be the dominant form of organised crime in European States such as the Netherlands¹² and Germany.¹³ Furthermore, it has also been argued that Triads (Hong Kong) and Snakeheads (China) operate largely through informal networks rather than formal structured organisations.¹⁴ In this respect, it can be concluded that the network model is equally important in understanding organised crime, and that the definition in the UNTOC is broad enough to cover a wide range of criminal groups.

A few more points should be highlighted in relation to this definition. According to Article 2(b), a ‘serious crime’ means conduct constituting an offence punishable by a maximum deprivation of liberty of at least 4 years. The UNTOC also defines ‘criminal offences’ as those that are committed for financial or material benefit. This is an important aspect because what distinguishes organised crime from ordinary crime generally is the generation of longer-term, as opposed to immediate or one-off, profit or benefit.¹⁵ This means that criminal proceeds are normally diversified and reinvested in legal/illegal enterprises for the generation of sustained income for criminals.¹⁶ Therefore, organised criminal groups are comparable to legitimate corporations and businesses except that they mainly operate in illegal markets.

One of the key benefits of providing these and other definitions under the UNTOC is the facilitation of harmonisation of national criminal laws and justice procedures among State Parties. If organised crime offences and their serious nature were understood in the same way by all States, this would naturally lead to smoother international cooperation and would also help reduce safe havens for criminals¹⁷ as punishments for transnational organised crime could be aligned. Harmonisation could also bridge diverse gaps in legal traditions among State Parties. Whilst it may be easy to support this in theory, in practice each State defines an offence according to its own political, cultural and social traditions. To illustrate this with some examples, an examination of State practice reveals that the definitions of an ‘organised criminal group’ vary between State Parties. For instance, the Crimes Act 1961 of New Zealand (as amended) gives the following definition:

A group is an organised criminal group if it is a group of 3 or more people who have as their objective or one of their objectives –

(a)	obtaining material benefits from the commission of offences that are punishable by imprisonment for a term of 4 years or more.^18

This definition is broadly in line with the UNTOC. In contrast, the Australian definition refers to a group as one which consists of 2 or more people who if prosecuted can be imprisoned for at least 3 years, without any material or financial benefit.¹⁹ This makes the Australian definition much wider as it can apply to a variety of ordinary crimes such as theft and criminal damage if committed by 2 or more individuals. The Malaysian Criminal Code also refers to a group of 2 or more people, and defines a ‘serious crime’ as any offence punishable with imprisonment of 10 years or more.²⁰ The principle of State sovereignty, therefore, has taken precedence over the implementation of international standards.

However, these discrepancies should not be used to dismiss the value of international law on transnational organised crime. As succinctly put by one of the working groups of the Conference of Parties to the UNTOC, harmonisation is not a one-off thing. Rather, it is an ongoing process which all State Parties should respect and implement to strengthen their action against organised crime.²¹ The sensitive nature of the subject matter means that it naturally takes time to develop a common understanding on all issues. Therefore, patience is key in the successful implementation of this instrument. Nevertheless, it is encouraging to see that harmonisation is gradually being accepted in some areas. The prosecution and punishment of human trafficking is a case in point. The Protocol to Prevent, Suppress and Punish Trafficking in Persons 2000, attached to the UNTOC,²² provides the following definition of this crime:

Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or rec...