‘Transnational Crimes in the Americas’ addresses contemporary issues with respect to public institutions that are stakeholders in the fight against globalization of crime. Regional public organizations, with a primary focus on the Americas, constitute a framework for understanding the need for an institutional response within the Western Hemisphere. While other authors have addressed the growth of organized crime, no one has explained institutional developments in the struggle against transnational crimes.
'Transnational Crimes in the Americas’ highlights existing organizations, emphasizing a regional response to transnational crimes, suggestions for a permanent criminal court in the Americas and an appraisal of the current state of institutional developments in the region.
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About the Author
Marshall B. Lloyd is adjunct professor at St. Mary’s University School of Law in San Antonio, Texas, USA, and a practising attorney in the state of Texas.
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FORMATION OF AN INSTITUTIONAL RESPONSE TO COMBAT TRANSNATIONAL CRIMES
Transnational organized crime (TOC) represents a serious threat to the sovereignty of nation-states as criminal groups extend their influence within public institutions and diversify their enterprises. Organized criminal activities include, but are not limited to, illicit drugs, trafficking in weapons, money laundering and human trafficking. Globalization of markets presents an opportunity to establish networks that extend beyond traditional hierarchical structures of criminal groups. Contributing to the growth of TOC is the globalization of commerce that benefits from an easing of trade restrictions, technology in the form of communication systems and financial institutions that can transfer billions from criminal networks. It is not surprising that activities of TOC networks threaten the stability of international political and economic systems. Transnational criminal organizations "are increasingly entrenched in the operations of foreign governments and the international financial system, thereby weakening democratic institutions, degrading the rule of law, and undermining economic markets. These organizations facilitate and aggravate violent civil conflicts and increasingly facilitate activities of other dangerous persons."
In some cases, countries entering into trade agreements neglect to address criminal organizations despite subsequent developments indicating that criminal networks take advantage of integrating markets and financial institutions. Acting alone, some countries attempt to seize the assets of criminal networks, while urging others to adopt similar measures against criminal organizations that "mov[e] vast sums of ill-gotten gains through the international financial system with absolute impunity." Moreover, threats to impose sanctions on other nations identified as facilitators in laundering illicit money for criminal cartels can have a countereffect among countries that are needed as partners to combat security threats posed by criminal organizations. Sanctions hinder nations from effectively battling these supranational criminal cartels that are targeting those nations that are most vulnerable. The effectiveness of any nation-state acting unilaterally to combat transnational criminal organizations may be questionable in light of the scale and extent of international organized criminal activities [that are] complex, global and threatening." As a result, globalization empowers criminal organizations to act with impunity, conducting business beyond the reach of individual nations while penetrating multiple countries with their criminal activities.
The apparent limitations of individual nations compel international organizations to assume an expansive role in combating criminal organizations. In 1997, the United Nations combined existing agencies to establish the UN Office on Drugs and Crime (UNODC). Recognizing the nexus among interrelated issues associated with transnational crimes, the reorganization of programs and entities represents an effort by the secretary-general's office to strengthen the United Nations' ability to enhance international cooperation among industrialized and developing nations. The UNODC has the responsibility for coordinating and providing effective leadership with respect to illicit drugs, international crime and terrorism. According to the UNODC, the three pillars of the agency are
research and analytical work to increase knowledge and understanding of drugs and crime issues and expand the evidence base for policy and operational decisions; Normative work to assist States in the ratification and implementation of the relevant international treaties, the development of domestic legislation on drugs, crime and terrorism, and the provision of secretariat and substantive services to the treaty-based and governing bodies; [and] Field-based technical cooperation projects to enhance the capacity of Member States to counteract illicit drugs, crime and terrorism.
The work performed by the UNODC is an institutional response coordinating an array of services consistent with needs identified by member states to combat international crime. Under the direction of the Office of the Executive Director (OED), the UNODC responds to requests from member states to assist with expertise regarding various international crime issues. Services provided by UNODC agencies are based on strategies supported by a framework of treaties addressing drug trafficking, corruption, organized crime, trafficking in weapons and terrorism. Operating within a network of field units, project and liaison offices, UNODC officials work with representatives from host nations and nongovernmental organizations (NGOs). UNODC accomplishments are outlined in annual reports illustrating the demand for services and continuous threats that international crime presents to all nation-states.
B. Assessing the Global Mission of the UNODC
The fundamental mission of the UNODC is to assist UN members with treaty obligations. A balancing act takes place as nations coordinate compliance with specific treaties in light of domestic law. Case in point, the Transnational Crime Convention creates a distinction from domestic crimes, specifying that an offense is transnational in nature if
(a) it 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.
Parties balance their treaty obligations "consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States." Signatories are required to adopt legislation that criminalizes acts committed intentionally that involve
(a) either or both of the following as criminal offences distinct from those involving the attempt or completion of the criminal activity:
(i) agreeing with one or more other persons to commit a serious crime for a purpose relating directly or indirectly to the obtaining of a financial or other material benefit and, where required by domestic law, involving an act undertaken by one of the participants in furtherance of the agreement or involving an organized criminal group;
(ii) conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in
a. criminal activities of the organized criminal group;
b. other activities of the organized criminal group in the knowledge that his or her participation will contribute to the achievement of the above-described criminal aim;
(b) organizing, directing, aiding, abetting, facilitating or counseling the commission of serious crime involving an organized criminal group.
Thus, a "chipping away" at sovereignty occurs as nations adopt legislation to implement obligations under the Transnational Crime Convention.
The UNODC's primary task is coordinating services in response to the globalization of illicit drug trafficking. Drug trafficking is the nucleus of transnational crimes, which led to establishing the UNODC to enhance the UN's "capacity to address the interrelated issues of drug control and transnational crime." The UNODC provides, among other services, legal assistance to parties adopting domestic criminal statutes, agreements pertaining to mutual legal assistance involving extradition, cooperation among law enforcement officials and technical assistance that includes training of personnel. Moreover, technical services are available to UN members to achieve significant drug control efforts as well as combat other transnational crimes. Services include the curtailing of money laundering, the monitoring of import/ export of control substances, development of an electronic infrastructure and other means of assistance to achieve compliance with UN drug control conventions.
Subsidiaries working in conjunction with the UNODC include two commissions charged with policy making and implementation of UN crime prevention programs. The Commission on Narcotic Drugs (CND), established in 1946, is the central policy-making entity of the UN. As the principal UN policy-making entity on drug control issues, the CND mission includes administering the Fund of the United Nations International Drug Control Programme (UNDCP). Moreover, the CND is charged with ensuring compliance with the international drug control treaties in drug-related matters as the governing body of the UNDCP. The Commission on Crime Prevention and Criminal Justice (CCPCJ), created at the direction of the UN General Assembly, has a mandate that includes national and transnational crimes. CCPCJ reports indicate a broad agenda on transnational crime with respect to drug trafficking, terrorism, money laundering, organized crime and corruption. Finally, the International Narcotics Control Board (INCB) functions as a monitoring agency regarding the manufacturing of trade in and use of licit and illicit drugs. Established in 1968, the INCB discharges its duties under three international drug conventions. The INCB primary mission is implementation of the conventions by focusing on demand reduction methods that address "all activities aimed at reducing demand for drugs and includes primary, secondary and tertiary prevention." However, the INCB annual reports infer drug interdiction programs as the primary means of achieving demand reduction. The on-site visits to ensure compliance with treaty obligations are designed to evaluate control and reduction efforts measured in seizures of illicit drugs.
C. Criticism of the UNODC
Periodically, the UNODC is criticized by external organizations regarding its global mission grounded on interdiction of illicit drugs. The Transnational Institute questions the lack of focus on harm reduction by UNODC officials. Specifically, harm reduction practices involving needle exchange programs and drug treatment receive scant attention within the UNODC. The International Federation of Red Cross and Red Crescent Societies (IFRCRCS) takes issue with UNDOC's lack of affirmative endorsement of harm reduction strategies. IFRCRCS programs aimed at reducing the spread of the human immunodeficiency virus (HIV) support needle exchange programs, noting that
forcing people who use drugs further underground and into situations where transmission of HIV/ AIDS is more likely, and denying them access to life-saving treatment and prevention services is creating a public health disaster. This happens even though the evidence from scientific and medical research on best practices and cost benefit analyses is overwhelmingly in [favor] of harm reduction programming. This includes needle exchange, drug substitution treatment and condom distribution as part of the response to HIV/ AIDS. The message is clear. It is time to be guided by the light of science, not by the darkness of ignorance and fear.
The Drug Policy Alliance takes a harsher view of UN drug control policy that criminalizes all nonmedical use, manufacture and sale of drugs. Projects supported by the organization emphasize the availability of treatment and demand reduction as a preferred policy rather than criminal enforcement. Human Rights Watch and the International Harm Reduction Association (IHRA) also question the punitive practices that criminalize possession of drugs for personal consumption. Enforcement practices deter people from seeking HIV services and drug dependence treatment, and disproportionately penalize possession of illicit drugs.
Critics of the UNODC's emphasis on supply reduction policies exist within the United Nations. Catherine Hankins, associate director of the UN Joint Programme on HIV/ AIDS (UNAIDS), has made clear that "the United Nations fully endorses the fundamental principles of harm reduction: reaching out to injecting drug users, providing sterile injecting equipment and disinfectant materials, and providing substitution treatment." The World Health Organization (WHO) also advocates harm reduction initiatives targeting people living with HIV/ AIDS in developing and middle-income countries. Commissioning a review of more than two hundred articles led the WHO to conclude that the availability of sterile equipment reduces HIV transmission with minimum evidence of unintended consequences such as increasing the use of illicit drugs, while punitive measures create a barrier to HIV drug users. The UN High Commissioner for Human Rights (UNCHR) notes that states have obligations that not only include efforts to reduce illicit drug supplies but also ensure that the public has access to drugs for therapeutic purposes. Mindful of the challenges of conforming to international law, the UNCHR calls attention to human rights obligations in recognition that "too often, drug users suffer discrimination, are forced to accept treatment, marginalized and often harmed by approaches which over-emphasize criminalization and punishment while under-emphasizing harm reduction and respect for human rights." The comments are consistent with the UN General Assembly's recognition after the inception of the UNODC that states must provide "the necessary resources for treatment and rehabilitation and to enable social reintegration ... [for those] who have become drug abusers and to fight against all aspects of the world drug problem" as they conform to obligations under international law.
In response to criticism, the UNDOC gradually expanded its mission to include harm reduction policies. For example, in partnership with the WHO, the UNODC now incorporates prevention, intervention and drug treatment services within its mission to focus on programs at the community level. Other endeavors by the UNODC appear to accept harm reduction policies as indicated by the establishment of 30 HIV/ AIDS field offices in support of local key stakeholders that include policy makers, decision makers, community leaders and faithbased organizations. Moreover, the UN General Assembly has prodded the UNODC to embrace alternative development as part of its mission. At the Special Session on the World Drug Problem in 1998, the UN General Assembly defined alternative development as
a process to prevent and eliminate the illicit cultivation of plants containing narcotic drugs and psychotropic substances through specifically designed rural development measures in the context of sustained national economic growth and sustainable development efforts in countries taking action against drugs, recognizing the particular socio-cultural characteristics of the target communities and groups, within the framework of a comprehensive and permanent solution to the problem of illicit drugs.
During the Special Session, the General Assembly adopted a 10-year plan in recognition that alternative development embraces a "balanced and comprehensive drug control strategy," which includes law enforcement and eradication efforts. Subsequently, UNODC reported that "alternative development ... clearly help[s] ... to reduce and contain the spread of illicit drug crops." At the end of a 10-year period, a CND follow-up report recognized alternative development programs as a viable part of addressing the world drug problem. As a result, the CND acknowledges alternative programs as an important component in economic development in developing nations. At its March 2010 meeting, the CND recommended further analysis of "best practices" associated with alternative development strategies in support of the General Assembly's 1998 10-year plan.
D. Criminal Liability: Prosecution of Transnational Crimes
Despite the success or failures of entities seeking compliance among stakeholders, prosecution of criminal enterprises presents institutional challenges for international organizations. Recognition that crimes transcend traditional state sovereignty can be traced to the Allies during World War II, having met in London's St. James Palace in 1942 to consider prosecuting Nazi criminals. As a result, the UN established a War Crimes Commission, which led to creating the Nuremberg International Military Tribunal to prosecute 24 Nazis for "Crimes against Peace, Humanity, War Crimes, and Conspiracy to commit any of these crimes." In Tokyo, US General Douglas MacArthur oversaw the International Military Tribunal for the Far East to prosecute crimes similar to the Nuremberg Trials. Despite criticism of fairness and procedural rules, "time and the unfulfilled quest for international criminal justice have put a favorable gloss over infirmities and flaws of these proceedings." The experience established a foundation for prosecution of violations of the Geneva Conventions and international humanitarian law. As a result, the military tribunals contributed to the contemporary development of human rights jurisprudence.(Continues…)
Excerpted from "Transnational Crimes in the Americas"
Copyright © 2018 Marshall B. Lloyd.
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Table of Contents
1. Formation of an Institutional Response to Combat Transnational Crimes; 2. Regional Organizations in the Americas; 3. Transnational Crimes in the Americas: Regional and Sub-regional Responses; 4. Combating Transnational Crimes in the Americas; 5. Cooperating against Transnational Crimes: A Framework for Sustainable, Alternative Development in the Americas; 6. Strengthening the Inter-American System: Establishing an Enforcement Response to Transnational Crimes; 7. Support for a Regional Response to Transnational Crimes; 8. Conclusion; Appendix A; Appendix B; Appendix C; Acronyms and Abbreviations; Bibliography; Index.