Cross-Border Law Enforcement

Regional Law Enforcement Cooperation – European, Australian and Asia-Pacific Perspectives

Saskia Hufnagel, Clive Harfield, Simon Bronitt, Saskia Hufnagel, Clive Harfield, Simon Bronitt

• Publisher: Taylor & Francis
• Year: 2012
• Print ISBN: 9780415859240
• eBook ISBN: 9781136697272
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

This innovative volume explores issues of law enforcement cooperation across borders from a variety of disciplinary perspectives. In doing so it adopts a comparative framework hitherto unexplored; namely the EU and the Australsian/Asia-Pacific region whose relative geopolitical remoteness from each other decreases with every incremental increase in globalisation. The borders under examination include both macro-level cooperation between nation-states, as well as micro-level cooperation between different Executive agencies within a nation-state. In terms of disciplinary borders the contributions demonstrate the breadth of academic insight that can be brought to bear on this topic. The volume contributes to the wider context for evidence-based policy-making and knowledge-based policing by bringing together leading academics, public policy-makers, legal practitioners and law enforcement officials from Europe, Australia and the Asian-Pacific region, to shed new light on the pressing problems impeding cross-border policing and law enforcement globally and regionally. Problems common to all jurisdictions are discussed and innovative 'best practice' solutions and models are considered.

The book is structured in four parts: Police cooperation in the EU; in Australia; in the Asia-Pacific Region; and finally it considers issues of jurisdiction and due process/human rights issues, with a focus on regional cooperation strategies for countering human trafficking, organised crime and terrorism.

The book will be of interest to both academic and practitioner communities in policing, criminology, international relations, and comparative Asia-Pacific and EU legal studies.

1 The globalisation of police and judicial cooperation: drivers, substance and organisational arrangements, political complications

Cyrille Fijnaut

Introduction

Cross-border cooperation between the police and judicial authorities has increased enormously in recent decades. Such cooperation is no longer limited to that between adjoining countries or between countries that are members of the same continental (or subcontinental) quasi-federal political alliance; today, it extends around the world. Since the signing of the Maastricht Treaty (1991), much has changed in this regard in Europe, certainly at European Union level. Not only has police and judicial cooperation between the various Member States become closer and more refined in a whole range of ways, but both the individual Member States and the European Union as a whole are working ever more closely on such matters with countries and regions all around the world (Meeusen and Straetmans 2007, Occhipinti 2003, Sabatier 2001).

The same is true of Australia. For evidence, one need only consult the websites of a number of relevant national or federal services such as the Australian Federal Police, the Australian Crime Commission, the Attorney-General’s Department and the Department of Foreign Affairs. It becomes clear at a glance not only how closely these agencies work in many different contexts with similar organisations in both neighbouring and distant countries, but also how they are active in a wide variety of ways within the territories of other states in other parts of the world. This is clearest in the case of the Australian Federal Police. Not only does this force have liaison officers in numerous other countries, but it also has an International Deployment Group that can be deployed worldwide in many different crisis areas.¹

That is why the title of this chapter is ‘The globalisation of police and judicial cooperation’. The word ‘globalisation’ not only expresses clearly how international police and judicial cooperation has taken shape in recent years, it also offers an adequate framework for discussing current and future developments at regional, subcontinental, continental and intercontinental levels. The notion of ‘globalisation’ is also appropriate to the many ways in which Australia, for example, has engaged in this increasingly important area of foreign policy. In addition to the examples already cited, this includes technical support for investigations carried out in other parts of the world and cross-border information-sharing about terrorist groups.

These examples of the globalisation of police and judicial cooperation bring us almost automatically to the first question that I wish to address: what is driving the sudden surge in police and judicial cooperation around the world? I begin by looking at the customary response to this question: the many different forms of transnational organised crime. I then comment on that traditional explanation for the evolution of this specific form of interstate cooperation. To begin with, is it not too easy to give transnational crime the credit for driving such cooperation and would it not be better to point to the problems that cause such crimes? Secondly, can we view the rise in cross-border police and judicial cooperation separately from the general global balance of power? Is it not precisely this balance of power that provides the context for such cooperation? Thirdly, don’t the accounts of transnational police and judicial cooperation pay too little attention to the local dimension of the problems of organised crime and other cross-border issues involving public order and security?

The second issue that I address concerns the institutionalisation of international police and judicial cooperation. I begin by answering that question in the more formal sense: how does such cooperation manifest itself at the present time, in terms of both its substance and its organisational dimensions? In other words, in what ways can the police and judicial authorities cooperate internationally at the moment, and what are the organisational contexts for these forms of cooperation in practical terms? Keying into this idea, I then look at factors that have a major impact on the actual chain of events in interstate police and judicial cooperation.

The third question addressed here concerns the political complications that arise in our world today when the police and judicial authorities cooperate internationally. I will look at obstacles to such cooperation at three levels: the separate, individual states; states that basically wish to engage in cross-border cooperation with one another; and a world made up not only of properly governed states, but also stateless regions and failed and failing states.

Drivers of the Globalisation of Police and Judicial Cooperation

The traditional view: the growth of transnational crime

It has become customary to attribute the globalisation of police and judicial cooperation largely to the internationalisation of serious transnational crime (Viano 1999). The examples usually cited include trafficking in human beings and prostitution, drug trafficking, trafficking in firearms and the trade in stolen automobiles. In around 1900, violent anarchism was one of the drivers of such cooperation; since the 1960s, successive waves of terrorism have played a major role worldwide in the cooperation between police services, judicial authorities and intelligence services around the world (Fijnaut, Wouters and Naert 2004, Friedrichts 2008, Higgins and Flory 1997).

There is nothing wrong with this particular explanation – up to a certain point. International police and judicial cooperation was – and to some extent still is – a response to the problems of transnational crime. The conventions signed over the past 100 years to combat trafficking in women and the illegal drug trade set out not only to harmonise the relevant penalty clauses and the powers and/or methods used to enforce those clauses; they also make it possible for the police and judicial authorities to work together more closely and effectively across national borders when tackling the problems addressed by these conventions, in particular by collecting information and deploying proactive policing methods. At times, these and other conventions have led to major or minor reorganisations of national police forces, intended to guarantee or improve the effective enforcement of the conventions. Such reorganisations have involved the setting up of special drugs units and vice squads, to stick with the examples given (Andreas and Nadelmann 2006).

An excellent example of the foregoing is the United Nations Convention against Transnational Organised Crime. This convention not only provides a broad definition of transnational organised crime but also encompasses a large number of provisions related to the harmonisation of criminal law and the law of criminal proceedings, in particular where that involves the use of proactive investigation methods. It also has a fairly large number of articles concerning police cooperation and mutual legal assistance, for example with respect to exchanging information, seizing goods and protecting witnesses. Following on from this idea are various provisions pertaining to technical and financial assistance, making it possible for poor countries to participate in international police cooperation as it is organised today (Albrecht and Fijnaut 2002, McClean 2007).

Shortcomings in the Traditional Explanation: the Background of Transnational Crime

None of this means, however, that the intensification of international police and judicial cooperation can be attributed simply to transnational crime as such.

Let us look at the example of the illegal trade in small arms and light weapons. Since the 1990s, the United Nations has passed a series of resolutions aimed at limiting this trade, and detailed action plans have been drawn up at various levels – not only by the United Nations, of course, but also by the European Union, for example – to enforce these resolutions. Last year, at the request of the organisers of the Pearls in Policing Conference and the Prosecutor at the International Criminal Court, Mr Luis Moreno-Ocampo, I set up a small research group to study the role of the police in this context. Specifically, what can the police do to combat illegal arms production, the illegal arms trade and the illegal possession of arms (Fijnaut et al. 2008)?

Anyone studying the problems of the illegal arms industry in this way will quickly discover that it has mainly resulted from the violent political conflicts engulfing large portions of the globe, specifically in Africa, South-east Asia and South America. And that is why we can say that it is not the worldwide illegal arms trade as such that is driving the growth of police and judicial cooperation around the world but the conflicts and the parties caught up in them. The illegal arms trade is only a side effect of these conflicts. At the same time, that means that the illegal arms trade cannot be combated effectively by stepping up the level of police and judicial cooperation. That is only possible after the conflicts have died down or have been resolved (Wood and Peleman 1999).

The same can be said of trafficking in women. This category of serious crime is always described as one of the drivers of police and judicial cooperation. That is true, up to a point: it would be very difficult to tackle such trafficking under criminal law without that cooperation. But this depiction should not lose sight of the fact that trafficking in women is itself driven by extreme poverty across large sections of eastern and southern Europe, Africa, South America and Asia, and spurred on considerably by the illegal and legal sex markets all over the world.

The Overall Context: the Global Balance of Power>

A further point that we must not lose sight of is that the internationalisation of police and judicial cooperation is not happening in a vacuum; it is in fact a side effect of the rise – and at times the fall – of international superpowers or confederations of states (Deflem 2002).

One clear example of this is the United States. Until the Second World War, the US had little interest in international police and judicial cooperation. In the post-War era, and in particular within the context of the war on drugs and, later, the fight against terrorism, the US invested a huge amount of money and effort in cooperating with the police and judicial authorities in other countries, for reasons of national security and in order to protect its foreign interests. Based on the doctrine ‘the first line of defence is outside of the borders of the United States’, the US has not only set up a huge network of FBI liaison officers around the world and signed legal assistance conventions with numerous countries; it has also specifically encouraged other countries to adapt their criminal law and police and judicial organisations to that of the American model, in order to facilitate closer cooperation (Nadelmann, 1993).

What applies for the United States also applies for the European Union. Until the 1980s, it was generally very difficult for the Member States of the European Community to negotiate treaties on closer operational cooperation between their police forces and public prosecution services. When it became clear that an Internal Market would be created, however, and that this would mean dismantling the system of internal border controls, with police and judicial cooperation between the Member States being integrated into the European Union step by step (the ‘Third Pillar’), it also became possible to force various breakthrou this issue (Peers 2000).

At that point, a certain degree of consensus was reached on the need to conclude the Convention implementing the Schengen Agreement of 14 June 1985 (1990), which provided for cross-border pursuit, cross-border surveillance and cross-border controlled delivery. After many years of negotiations, it then became possible to draw up the Europol Convention in 1995 and, after many difficulties, to conclude an agreement on mutual legal assistance in 2000 (Vermeulen 2008). And, just as in the case of the United States, these developments did not stop at the borders of the quasi-federal European Union but were slowly integrated into the foreign policy of the EU and its Member States.

This evolution picked up speed in the 1990s when the European Union acquired a number of new Member States, which were required to meet certain criteria with respect to their police and judicial authorities (Apap 2004). After 9/11, they became part of the European Union Security Strategy (2003), which assumes that Europe is facing serious challenges around the globe, specifically with respect to organised crime and terrorism. That is why the Strategy embraces the ‘first line of defence’ doctrine and stipulates more clearly than ever before that Justice and Home Affairs (the ‘Third Pillar’ – now referred to as Police and Judicial Co-operation in Criminal Matters) must play a greater, permanent role in the foreign policy of the Member States and the European Union. The effects of tightening up and extending the policy in this manner can be felt even today. They are evident, for example, in the cooperation agreements that Europol has concluded with the police services in non-EU countries and in the way police and judicial authorities in post-conflict areas are trained and equipped (Fijnaut 2008).

The Local Dimension of Transnational Crime

Lastly, I wish to draw attention to the fact that – despite all the puffed-up stories about globalisation, both of serious crime and of police and judicial cooperation – the adjectives that one often sees used in this context, ie transnational organised crime and international police and judicial cooperation, must be qualified to some extent. There is little doubt that major forms of serious organised crime usually – also – have a transnational dimension: people and goods are smuggled across national borders, organising the smuggling operations naturally requires use to be made of normal telecommunications networks and both the crime and the distribution of its proceeds are obviously financed largely through the usual monetary exchanges via the banks (Nordstrom 2007).

On the other hand, both the production and distribution of the smuggled goods and services are usually local or regional in nature. Let us consider the example given previously in this chapter, that of trafficking in women: not only are the women recruited from specific places around the world but their sexual exploitation always takes place somewhere, at specific locations. The same is true of the other example, the illegal drug trade. Let us look at synthetic drugs, for instance. They are produced at certain locations in the Netherlands, Belgium, Germany, Poland etc, and then – after transport, perhaps across national borders – they are distributed to certain places around the world. In other words, adjectives such as ‘international’ and ‘transnational’ are very relative in this connection and refer only to certain aspects of the crime that is committed on a global scale (Findlay1999).

It should be obvious that this approach to the problem of serious organised crime has far-reaching consequences for the way that problem is managed. Specifically, it means that while international police and judicial cooperation is necessary in order actually to combat trafficking in women, drugs and so forth, the success of fighting these crimes through the criminal justice system depends on the strength of the local, regional or national police force and judicial authorities. Robust police services and public prosecution services are not only a prerequisite for tackling the production and distribution side of transnational serious crime but are also a necessary condition for effective cooperation with police services and public prosecution services in other countries or other parts of the world. A weak law enforcement and judicial system cannot play a role of any significance in this form of cooperation, for the simple reason that it has neither the capacity nor the competencies to do so (Fijnaut and Paoli 2006).

I also wish to emphasise here that the effectiveness of the local police and judicial authorities depends largely on the measures undertaken by the local administrative authorities. New York is a good example in th...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• Tables & Figures
• Acknowledgements
• Notes on contributors
• Introduction
• 1. The globalisation of police and judicial cooperation: drivers, substance and organisational arrangements, political complications
• Part 1: European perspectives
• Part 2: Australian and Asia-Pacific perspectives
• Part 3: Thematic perspectives on cooperation
• Index