Describe the role and function of the Transnational Organised Crime Convention
The Transnational Organised Crime Convention is a multi-lateral convention established by the United Nations in December 2000 with the expressed aim of demonstrating the “political will to answer a global challenge with a global response.” It should consequently be seen as formal recognition that the new security problems posited by the advent of the era of globalisation (aided and abetted by the proliferation of new technology) currently reside beyond the scope of any one sovereign nation-state.
It should also be understood as a collective response by western liberal democracies to the growing threat posed by ‘new' dangers to international security including both transnational crime and terror. The Convention therefore plays an important political role in uniting member state actors against all aggressive non-state actors that look to destabilise international and regional security.
The Convention also ought to be understood to be playing a key symbolic role in light of the UN's ongoing fight against human rights abuses taking place across the globe with the perpetuation of global organised crime in the guise of people trafficking (including the trafficking of sex workers and children) posing one of the greatest contemporary threats to the cause of human rights.
When one recalls that the UN was established primarily to prevent a reoccurrence of the human rights abuses which characterised the Holocaust, we can see how important the role and function of the Transnational Organised Crime Convention is to the broader mandate of the United Nations.
As with other UN Conventions (such as the Convention on the Rights of a Child or the Convention on Climate Change), the primary function of the Transnational Organised Crime Convention is to promote cooperation across member states so as to curtail the spread of transnational crime.
The Convention is therefore “essentially an instrument of international cooperation. Its purpose is to promote intra-state cooperation to combat transnational crime.” Thus, the Protocols constitute the ideological backbone to the Convention and its incumbent mission to provide a political response to the global problem of transnational crime.
However, as is the case with other UN Conventions, we ought to understand the difference between establishing protocols and laying down a law as well as the difference between encouraging intra-state cooperation and making international legal reform a reality in the contemporary world order thus, while the Convention and its protocols are able to effectively define what transnational crime is as well as underline the best ways of tackling it, the Convention cannot enforce international law. This, in the final analysis, remains one of the major problems in fighting contemporary transnational crime – a problem that the United Nations seems at present completely unable to resolve.
What do we mean by the term ‘securitisation' of transnational crime? Do you think policies that securitize TNC are useful?
The securitisation of transnational crime refers to contemporary efforts to curtail crime flows that take place across international borders via dissolution of the existing distinctions between external and internal security systems, placing a greater emphasis in the process upon international cooperation with regards to global policing, border controls, travel and financial flows. In this way the economic, political and strategic obstacles standing in the way of a coherent fight against trans-national crime can begin to be effectively removed.
It should be noted that the securitisation of transnational crime has greatly accelerated in the aftermath of the September 11th terrorist attacks where lax international security was perceived to have facilitated not only the hijacking of the American planes that flew into the World Trade Centre and the Pentagon but also the transference of money which made the suicide missions possible in the first place.
Viewed from this perspective, it is consequently clear that the securitisation of transnational crime attempts in the first place to instil law, order and international cooperation in what Chris Dishman refers to ‘the leaderless nexus' where crime and terrorism converge. Thus, while the move towards a securitisation of transnational crime ought to be applauded we must take note of the essential paradox that exists with regards to attempts to legally solve a problem that operates wholly within the domain of the lawless.
We should also take note of the way in which securitisation has become increasingly popular since 9/11 suggesting that it is in many ways a knee-jerk reaction to an unforeseen problem – namely the convergence of trans-national crime and terrorism. Yet, due to the recent nature of international and regional security reforms, we should – ultimately – be wary of offering any definitive conclusions to policies that remain very much at an embryonic stage of development.
However, although it is true that 9/11 has served to accelerate the securitisation of transnational crime (certainly as far as the collective ‘West' is concerned), it is also true that attempts to increase international cooperation in the face of rising global crime have been in existence before the spectre of trans-national terrorism became such a prominent international issue.
For instance, Ralph Enmmers has charted the attempts of the Association of South East Asian Nations (ASEAN) and its bid to effectively securitize crime within that geopolitical locale between 1996 and 1997 with the author noting that while member states have openly declared the link between regional security and transnational crime they have hitherto fallen short of implementing bilateral actions due to ongoing resistance to institutional reforms.
Thus, as is the case with the UN's Transnational Organised Crime Convention, there remains a sizeable chasm to bridge between theory and practice concerning the securitisation of transnational crime in the contemporary era.
While crime has a long history of internationalisation through black markets and smuggling, there is a marked difference about the internationalisation of crime in the past and the internationalisation of crime at the dawn of the twenty first century where individual criminals and organised criminal gangs alike have been quick to exploit the unprecedented changes posited by the advent of the era globalisation, which has been characterised by the erosion of traditional sovereign state boundaries, facilitating in the process the rise of crimes relating to the illegal movement of peoples and goods across the contemporary world order.
As a result, we should note from the outset that globalisation, has gone a long way towards highlighting the “inadequacy of unilateral and bilateral law enforcement measures in the face of criminalised activities that transcend national borders.”
Consequently, we should note that globalisation and the fusion of state boundaries that this has entailed have created fertile grounds for the growth of transnational crime in the contemporary era by reducing the ability of state actors to effectively govern not only their own sovereign state territories but also the borders that fall within its field of jurisdiction.
Furthermore, we ought to note that that while globalisation has on many fronts (predominantly economic) served to increase intra-state and intra-regional cooperation, it has – as far as crime and international security are concerned – done little by way of ensuring a common rule of law institutionalised in order to curtail transnational crime.
States retain their own rule of law for combating crime and these differ widely from region to region with little in the way of common ground by means of preventative measures such as extradition. This problem has been exacerbated by the increased transference of weapons, goods and peoples across the world in the wake of the disbandment of the Soviet Union with criminal gangs exploiting the difficult process of transition from a command-based system of governance to democratic rule based upon the principles of the free market economy.
Thus, we should understand how the internationalisation of crime has been facilitated by the “illegal flow of commodities, persons and ideas” in a distorted mirroring of the legal flow of economic and political goods and services that characterises the western, neoliberal concept of globalisation.
Only through the reduction in value of the state – itself a prerequisite for the smooth functioning of the global free market economy – have non-state, trans-national actors been able to turn transnational crime into a highly lucrative enterprise. This, ultimately, should be seen as one of the major drawbacks to globalisation as an economic paradigm.
What role does technology play in modern TNC, both from the point of view of assisting TNC and assisting its interdiction?
There can be little doubt that modern notions of transnational crime have been fired by the twin engines of globalisation and technology with the rapid changes that have occurred in technology in the past twenty years making the internationalisation of crime a much more straightforward affair.
Most notably, new technologies (in particular, mobile telephony and the Internet) have made the issue of connectivity much simpler permitting organised criminal gangs to be able to instantaneously communicate with one another across regions.
This, in turn, has resulted in a long overdue re-evaluation of the traditional view of criminal gangs being seen as centrally controlled organisations, replaced by a new interpretation of criminal gangs as transnational criminal networks. The part played by technology in this shift in criminological emphasis should not be underestimated.
New technology has assisted the rise not only of a networked concept of contemporary criminal gangs but also the rise of individual criminals who are able to exploit the flow of information through cyberspace in order to commit transnational economic crimes such as fraud.
Furthermore, with government information stored in databases accessible to criminals throughout the world, national and international security has been placed at a much greater risk due to the proliferation of new technology and the way in which sensitive information can be manipulated by criminals and then sold onto transnational criminal gangs, terrorists and other non-state actors that aim to use subversive means in order to destabilise state actors.
Yet while new technology has clearly and identifiably facilitated the rise of cyber-crimes, it can also be harnessed by crime prevention authorities as a means of tracking criminal activity. For instance, in the United States the creation of the Terrorist Threat Integration Centre in 2004 has served to integrate counter-terrorism and surveillance measures, using technology as a means of information-sharing within the multi-faceted law enforcement agencies in the federal system. Likewise in Australia, crime prevention strategies and federalised legal systems are better able to use technology as a means of policing transnational crime in the post 9/11 legal and political landscape.
However, as is the case throughout the spectre of transnational crime, strategies designed to assist the interdiction of technology-based crimes and cyber crimes rest heavily upon a basic approach that “lies in developing cooperation between nations.
This is more easily said than done, given the significant differences in legal systems, values and priorities throughout the world.” Thus, while technology has facilitated the arrival of discernibly ‘new' forms of transnational crimes, attempts to curb its influence remain bogged down by the same logistical and theoretical difficulties as before, culminating in an inability to cooperate internationally (both legally and politically) at the state level.
What impact have the provisions for Mutual Legal Assistance and the Exchange of Information in the Transnational Organized Crime Convention had on the sharing of intelligence multi-laterally?
As we have already noted, the advent of the era of globalisation and its incumbent new forms of communication and technology have enabled criminals and terrorists alike to make transnational crime a highly important matter for state officials operating throughout the contemporary world order.
This is in large part because criminals have been willing to share information via networking and socialisation in a way that governments have not. In this way non-state actors have been quicker to exploit the realities of the twenty first century than have state actors.
However, we should also note that there have been attempts to push forward intra-state cooperation beyond the mere confines conventions and protocols. We have already seen how the Association of South East Asian Nations (ASEAN) and its bid to securitize crime have attempted to homogenise that region's anti-crime and counter-terrorism measures.
Yet we have also seen how protocols and guidelines remain more influential than legally binding international agreements as far as this is concerned. Therefore, until we reach a point where the essentially lawless domain of the international arena becomes regulated by a universally agreed international law, we will continue to see an acceleration of the policy of exchange of (amongst other things) ideas, information, suspects, witnesses, confidential documentation, extradition proceedings and, if necessary, the exchange of prisoners in the pursuit of the course of justice.
At present there are two areas of information sharing that transnational law enforcement agencies are able to use in their efforts to curtail the spread of international crime. On the one hand, there is the Mutual Legal Assistance Treaty (MLAT) whereby countries that sign up to the agreement designate a central authority (usually the two respective Justice Departments) to assist in matters relating to policing transnational crime involving in some cases the exchange of prisoners as well as the exchange of sensitive legal information.
Yet the MLAT comes with inherent weaknesses namely the prerequisite that countries share a common legal tradition. Even when this is the case, judgements that follow the MLAT path tend to be long, drawn out affairs with timescales wholly out of synch with other crime prevention strategies.
The same kind of problems can be seen to have affected the exchange of information within the UN's Transnational Organised Crime Convention whereby information can only be exchanged between those states that have signed up to the agreement.
When one considers that the states that sign up to anti-transnational crime agreements tend to be precisely those countries that have been targeted by these criminal groups, we can begin to see the extent to which theory and practice have become divorced within these and other multi-lateral information sharing apparatuses. Ultimately, then, until those ‘rogue' states that harbour international terrorist and transnational crime syndicates sign up to MLAT and the Transnational Organised Crime Convention, the impact of the exchange of information will remain distinctly limited.
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Briefly describe the role of globalisation in modern TNC?
Andreas, Peter and Nadelmann, Ethan Policing the Globe: Criminalisation and Crime Control in International Relations (Oxford and New York: Oxford University Press, 2006)
Edwards, Adam and Gill, Peter ‘Crime as enterprise? The case of “transnational organized crime”', Crime, Law and Social Change, 37:203-223, 2002
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Van Schendel, William, ‘Spaces of Engagement: How Borderlands, Illicit Flows and Territorial States Interlock', in, Van Schendel, William and Abraham, Itty Illicit Flows and Criminal Things: States, Borders and the ‘Other' Side of Globalisation (Indianapolis: Indiana University Press, 2005)