TRANSNATIONAL OFFENCES
3.1
TRANSNATIONAL ORGANISED CRIME
Until the collapse of the USSR, and the subsequent cataclysmic effects, organised
crime was essentially a domestic affair, even though transnational patterns were
evident. Some States chose to see the phenomenon holistically,
1
while others preferred
to view each underlying offence in isolation from the organised nature of the group.
Similarly, requests for international co-operation such as extradition and mutual
legal assistance were made on the basis of the underlying offence. The post-1990
era, with the advent of globalised trade and physical movement of persons, witnessed
an increase in organised crime, originating especially from the former Eastern bloc,
necessitating a different approach to the problem.
2
Two factors have generally
contributed to the eruption of organised crime at the dawn of the 21st century: the
emergence of ‘weak’ States and corruption.
3
The former refers to the institutional
capacity of States to govern legitimately, effectively administer justice and demand
obeisance from the entire population. To the effect that the vast majority of South
American States and Russia have been unsuccessful in achieving these ends, they
are seen as ‘weak’. Moreover, in this environment of a weak State, a thriving poor
population provides the cauldron in which criminality multiplies. Corruption further
exacerbates the situation,
4
as does the ability of such groups to launder their criminal
proceeds in tax havens where banking regulations are relaxed.
5
Since the early 1990s the United Nations (UN) General Assembly had detected
the increase and expansion of organised criminal activity worldwide, and made
reference to the emergent links between organised crime and terrorism.
6
In 1994, the
World Ministerial Conference on Organised Transnational Crime, adopted the Naples
Political Declaration and Global Action Plan Against Organised Transnational
Crime,
7
which
inter alia
addressed the issue of convening a conference for the
negotiation of a convention on the matter. By Resolution 53/111 the GeneralAssembly
1
For example, the 1951 US Racketeering Act, 18 USC § 1951
et seq
.
2
N Passas, ‘Globalisation and Transnational Crime: Effects of Criminogenic Asymmetries’, 4
Transnational Organized Crime
(1998), 2.
3
W Rensselaer and I Lee, Transnational Organised Crime: An Overview’, in T Farer (ed),
Transnational
Crime in the Americas
(1999), 4.
4
JM Waller and VJ Yasmann, ‘Russia’s Great Criminal Revolution: The Role of the Security Services’,
11
Journal of Contemporary Criminal Justice
(1995), 282.
5
RE Grosse,
Drugs and Money: Laundering Latin America’s Cocaine Dollars
(2001); J Blum, ‘Offshore
Money’, in
op cit,
Farer, note 3, p 57.
6
GA Res 49/60 (9 December 1994), and 50/186 (20 December 1995). See E Mylonaki, The Manipulation
of Organised Crime by Terrorists: Legal and Factual Perspectives’, 2
ICLR
(2002), 213.
7
UN Doc A/49/748 (1994), approved by GA Res 49/159 (23 December 1994). This was followed by
the 1995 Buenos Aires Declaration on Prevention and Control of Organised Transnational Crime,
UN Doc E/CN 15/1996/2/Add 1 (1996) and the 1997 Dakar Declaration on the Prevention and
Control of Organised Transnational Crime and Corruption, UN Doc E/CN 15/1998/6/Add 1 (1998),
and the 1998 Manila Declaration, UN Doc E/CN 15/1998/6/Add 2 (1998).
International Criminal Law
50
established an Ad Hoc Committee for the purpose of elaborating a convention and
three additional protocols.
8
After a series of eleven sessions between 1999 and 2000,
the UN Convention Against Transnational Organized Crime (CATOC)
9
and two
Additional Protocols were adopted in late 2000, while another one on firearms was
adopted on 31 May 2001.
10
CATOC establishes four distinct offences: (a) participation
in organised criminal groups;
11
(b) money laundering;
12
(c) corruption;
13
and (d)
obstruction of justice.
14
Under Art 3, the Convention applies to the four
aforementioned offences, as well as to any ‘serious crime’, as defined by Art 2(b),
15
if
cumulatively the offence is ‘transnational in nature’ and ‘involves an organised
criminal group’. In accordance with Art 3(2), offences are transnational in nature if
they are: committed in more than one State; committed in only one State, but are
prepared, planned, directed, controlled or have substantial effects in other States;
and committed in one State by an organised criminal group that engages in criminal
activities in more than one State.
16
It is evident that the relationship between the
2000 Convention and other sectoral agreements, especially those relating to narcotics
and corruption,
17
is complementary but at the same time the convention is
independent of those agreements. Because of its unique scope it finds application
only where the underlying offence possesses a transnational element and involves
an organised criminal group. The only other reference to organised crime in previous
sectoral treaties is found in the 1988 UN Convention Against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances (Narcotics Convention). Article 3(1)(a)(v) of the
latter instrument obliges States to ‘criminalise the organisation, management or
financing of the offences listed’ therein, and relating to the various processes, from
cultivation to final distribution. Moreover, sub-s (c)(iv) criminalises ‘participation
in, association or conspiracy to commit’ any of the listed offences, while sub-s (5) of
Art 3 requires that Member States adopt legislation requiring courts to take into
account the involvement of organised criminal groups and individual membership
therein as rendering the offence ‘serious’ in nature. Not all of the offences established
8
GA Res 53/111 (9 December 1998).
9
40 ILM (2001), 335.
10
Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children,
40 ILM (2001), 377; Protocol Against the Smuggling of Migrants by Land, Sea and Air, 40 ILM (2001),
384; Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and
Components, and Ammunition.
11
CATOC, Art 5.
12
Ibid,
Art 6.
13
Ibid,
Art 8.
14
Ibid,
Art 23.
15
This means any conduct constituting an offence punishable by at least a four year incarceration or a
more serious penalty. The main criminal activities of criminal organisations are: racketeering, fraud,
robberies, car theft, armed assault, drug-trafficking, trafficking in arms and radioactive materials,
trafficking in human beings, alien smuggling, smuggling of goods, extortion for protection money,
gambling, embezzling from industries and control of black markets.
16
See GOW Mueller, ‘Transnational Crime: Definitions and Concepts’, 4
Transnational Organised Crime
(1998), 14.
17
1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Narcotic Substances 28 ILM (1989),
497; 1997 OECD Convention on Combating Bribery of Foreign Officials in International Business
Transactions, 37 ILM (1998), 1.
Chapter 3: Transnational Offences
51
under CATOC, however, have in the past been subject to universal regulation,
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