International Law and Transnational Organized Crime

I GENERAL QUESTIONSThe Historical Evolution of the International Cooperation against Transnational Organised CrimeIntroductionOrganised crime: theoretical considerationsEarly BeginningsPiracy and privateeringInstitutionalization in the Early Years of the Twentieth CenturySlave trade and human trafficTrafficking in humansFranceUnited States of AmericaTrafficking in organs for transplantationOpiumInterpolModern EraTransnational organised crime and the financial marketsOrganised crime control and global crime governanceRegional ArrangementsHarmonizationTransnational vs international crimesWorld Society TheoryRationalizationPolice and technologyRandom collectionCryptographyExtraditionFragmentation?Waste: present and future opportunity and riskFinal ObservationsTransnational Organised Crime: Concepts and CriticsTransnational Organised Crime as a Linguistic and Social ConstructWhat does transnational organised crime denote?What does transnational organised crime connote?The exclusion of certain sociological issuesConceptions of Organised Crime: A PhenomenologyTwo meaningsA set of actorsThe enterprise theoryRecent developmentsDistinguishing organised crime from other phenomenaTerrorismGangsWhite-collar crimeOrganised crime as a model of‘crime as a service’Conceptions of Transnational Organised CrimeThe phenomenology of transnational and international crimeLegal aspects of transnational and international crimeSignificant elements, areas of activity, and manifestationsSOCTA 2013 and the current situation in EuropeDefinitions and factors relevant to crimeStructures of offendingOffender structuresTransnational factorsLooking to the FutureIntroductionKey factorsChanges to types of offendingDynamic marketsStable marketsShrinking criminal markets?ConclusionTransnational Organised Crime and its Impacts on States and SocietiesIntroductionAssessment of DifficultiesConditions for the Flourishing of TOCLegal conditionsInstitutional conditionsSocio-economic conditionsTOC and its Impact on SocietiesDirect vs indirect impactsMoral panics and TOCOrganised exploitationTOC and its Impact on StatesEconomic impactsPolitical impactsImpacts on the rule of lawFinal ObservationsThe EU and the Fight against Organised CrimeOriginsTransnational organised crime-appearances and dangersEuropean criminal policyTowards a union of freedom, security, and justice: the Tampere milestones (1999-2004)The Hague programme: strengthening freedom, security, and justice in the European Union (2005-9)The Stockholm Programme—an open and secure Europe serving and protecting citizens (2009-14)‘Post-Stockholm-Programme’ (2015-20)Legal BasesThe Maastricht TreatyTreaty of AmsterdamTreaty of LisbonPrimary EU lawSecondary EU lawCouncil Framework Decision 2008/841/JHA on the fight against organised crimeAbsorption of unlawfully acquired assets (Directive 2014/42/EU)Fighting specific outward forms of TOCInstitutionalizing Cooperation against TOCEuropolEurojustFinal ObservationsTransnational Organised Crime and TerrorismHistorical Evolution of TerrorismEighteenth- and nineteenth-century precedentsNationalist-separatist terrorismSocial revolutionary terrorismReligious terrorismConcluding considerationsConcept of TerrorismThe international law on terrorismUnited Nations anti-terrorism lawCouncil of EuropeEuropean UnionConclusionRemaining definitional problemsDelimitation from state terrorDelimitation from liberation movementsThe Distinction between TOC and TerrorismLinks between TOC and terrorism—the debate on the crime-terror continuumApplicability of the international law on terrorism to TOCConclusionsII UN CORE CONVENTIONS ON TRANSNATIONAL ORGANISED CRIME The Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 and the Global War on DrugsIntroductionOrganised Crime and International Drug TraffickingProhibition and the Global Drug Control RegimeEarly Attempts to Establish a Global Drug Control RegimeThe Creation of the International Drug Convention System, 1961-88The Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988Undermining the ConventionsThe Road to Reform of the ConventionsConclusionThe UN Convention against Transnational Organised Crime 2000IntroductionDevelopment of the UNTOCCriminalizing the Organisation of Serious Crime for BenefitFrom organised crime to organised criminal groupDefining the organised criminal group (OCG)Defining ‘transnational’From every crime to serious crimeThe scope of applicationOffences in the UNTOCThe double strategy-basic crimes and organisational/infrastructural crimesParticipation in an OCGMoney launderingCorruptionObstruction of justiceCorporate liabilityPenaltiesConfiscationLegality or over-criminalization?The Provisions for International CooperationImplementationFinal ObservationThe UN Protocol to Prevent, Suppress, and Punish Trafficking in Persons 2000IntroductionThrough a Gendered Lens—The Development of Trafficking Instruments until 2000The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and ChildrenDevelopment and drafting of a new instrumentTrafficking in persons as a transnational crimeDefining the terms—a controversial effortConsidering delimitations—trafficking, slavery, smugglingEffective remedy for and protection of victims of traffickingPreventionCooperation in a common effort: states and NGOsThe UN Protocol and public international lawImplementing the ProtocolConclusionsThe UN Protocol against the Smuggling of Migrants by Land, Sea and Air 2000IntroductionEvolution and BackgroundBackground and settingsEarly developmentsDevelopment of the ProtocolOutline of the protocolDefinitions and Terminology‘Smuggling of migrants’‘Financial or other material benefit’Smuggling of migrants vs trafficking in personsCriminal Offences, Article 6General requirements for all offencesPenaltiesOffence of smuggling of migrants, Article 6(1)(a)Producing, procuring, providing, or possessing fraudulent travel or identity documents, Article 6(1)(b)Enabling illegal stay, Article 6(1)(c)Extensions to criminal liability, Article 6(2)Attempts, Article 6(2)(a)Participation, Article 6(2)(b)Organising and directing, Article 6(2)(c)Corporate liabilityAggravations, Article 6(3)Endangering the lives or safety of smuggled migrants, Article 6(3)(a)Inhuman or degrading treatment of smuggled migrants, Article 6(3)(b)Involvement of an organised criminal groupOther aggravationsExemptions and Limitations of Criminal LiabilityHumanitarian smugglingSmuggling of family membersNon-criminalization of smuggled migrants, Article 5Smuggling of Migrants by SeaPrevention, Cooperation, and Other MeasuresProtection of Smuggled MigrantsProtection of the rights of smuggled migrantsAssistance to smuggled migrantsRefugee and human rights lawObservations and ConclusionsConcepts and criminalizationCooperationProtection of smuggled migrantsNon-party statesConcluding remarksThe UN Protocol against the Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components, and Ammunition 2001The Social Problem of Firearms Regulation and the Municipal Criminal Law ResponseThe Movement for International Firearms RegulationNegotiations for international illicit firearms regulation generallyRegulation of illicit firearms relating to organised crimeAnalysis of the Key Provisions of the ProtocolPreambleI—general provisionsII—preventionIII—final provisionsNegotiating History of the ProtocolPreambleI—general provisionsII—preventionDeleted provisionsImplementation of the Protocol and Subsequent DevelopmentsImpact of the Protocol on international practiceBeyond the ProtocolFinal observationThe United Nations Convention against Corruption and its Criminal Law ProvisionsOrigins of the UNCACSignificance and ScopeMandatory Criminal Law ProvisionsBribery of national public officials (Article 15)BackgroundScopeBribery of foreign public officials and officials of public international organisations (Article 16)BackgroundScopeEmbezzlement of property by a public official (Article 17)BackgroundScopeLaundering of the proceeds of crime (Article 23)BackgroundScopeObstruction of justice (Article 25)BackgroundScopeNon-Mandatory Criminal Law ProvisionsTrading in influence (Article 18)BackgroundScopeAbuse of functions (Article 19)BackgroundScopeArticle 21: bribery in the private sectorBackgroundScopeReview Mechanism and ImplementationIII OTHER RELEVANT INTERNATIONAL REGIMES AND ISSUESTransnational Organised Crime and the Anti-Money Laundering RegimeIntroductionThe Money Laundering ConceptThe Global Anti-Money Laundering FrameworkThe development of international standardsThe international legal frameworkThe FATFThe AML/CFT StrategyThe money laundering offenceNational and international cooperationThe engagement and role of the private sectorAsset forfeitureThe Effectiveness of the AML/CFT StrategyFinal ObservationTransnational Organised Crime and the Illegal Trade in Endangered Species of Wild Fauna and FloraIntroductionTransnational Organised Crime and the Illegal Trade in Endangered Species: The Scope of the ProblemSome Key Earlier Examples of Conservation-minded International Legal Instruments: A Brief OverviewThe 1973 Convention on Illegal Trade in Endangered Species of Wild Fauna and Flora (CITES)Main objectivesObligations of the states partiesCompliance, control, and cooperationEnforcement ProblemsReservations and exemptionsThe complexity and gravity of the problemCITES and the Broader International Treaty FrameworkThe Convention on Biological Diversity (CBD)UN Convention against Transnational Organised Crime (Palermo Convention)UN Convention against CorruptionUN Convention Concerning the Protection of the World Cultural and Natural HeritageRegional EffortsAfricaASEANEuropean Union (EU)Other InitiativesFinal ObservationsTransnational Organised Crime and the Sale of Children, Child Prostitution, and PornographyIntroductionTerminology and DemarcationsSale of childrenChild prostitutionChild pornographyThe Regime of International LawUniversal Declaration on Human RightsUN International Covenant on Civil and Political RightsUN International Covenant on Economic, Social, and Cultural RightsUN Convention on the Rights of the ChildArticle 19 CRCArticle 32 CRCArticle 34 CRCArticle 35 CRCCommittee on the Rights of the ChildWorld Congress against Commercial Sexual ExploitationWorst Forms of Child Labour ConventionInternational Conference on Combating Child Pornography on the InternetConvention on CybercrimeArticle 9(1)Article 9(2)Article 9(3)Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child PornographyEnforcementPerformanceAnalysisFinal ObservationsTransnational Organised Crime and Cultural PropertyPreliminary ObservationsArt and Cultural Objects in Transnational CrimeThe criminology of offences relating to art and cultural objectsInvestigation of crimes relating to art and cultural objectsPhenomenology of the theft of art and cultural objectsPhenomenology of the illegal handling of archeological cultural objectsPhenomenology of the forgery of art and cultural objectsPhenomenology of crimes involving cultural objects in armed conflictInternational Law on the Protection of Cultural PropertyProtection of cultural property in armed conflictThe Hague Convention of 1954 and its supplementsThe Hague Regulations Respecting the Laws and Customs of War on LandInternational criminal law with regard to cultural propertyProtection of cultural objects from illegal saleThe UNESCO Convention of 1970The UNIDROIT Convention of 1995Resolutions of the UN Security CouncilOther international lawProtection of Art and Cultural Objects in Criminal LawFinal ObservationsTransnational Organised Crime and CybercrimeOn the Phenomenology of CybercrimeIntroductionDefinition and scopeCore challenges of cybercrimeThe Evolution of Transnational Organised CybercrimeFrom the lonely hacker to a market of cybercrime servicesOrganised crime meets cybercrimeInternational Law and Substantive Criminal Law against Transnational Organised CybercrimeSelected initiatives on a global level on substantive cybercrime lawUnited NationsInternational Telecommunication UnionAcademiaThe Council of Europe Convention on CybercrimeHistorical overview, applicability, and scopeOffences againstICT systemsComputer-related and content-related offencesAdditional Protocol (acts of a racist and xenophobic nature)Further selected initiatives at a regional level on substantive cybercrime lawEuropean UnionCommonwealth of Independent StatesShanghai Cooperation OrganisationLeague of Arab StatesEconomic Community of West African StatesAfrican UnionModel LawsInternational Law and the Coordinated and Cooperative Investigation and Prosecution of Transnational Organised CybercrimeRequirements on investigatory powers in international law on cybercrimeCoercive measures in generalIdentification of subscribers; retention of traffic and identification dataInternational cooperation in the investigation and prosecution of transnational organised cybercrimeTraditional modes of cooperation extended to transnational organised cybercrimeAddressing the volatility of computer dataJurisdiction on Transnational Organised CybercrimeJurisdiction to prescribe and to adjudicateJurisdiction to enforceFinal ObservationsIV TRANSNATIONAL ORGANISED CRIME AS MATTER OF CERTAIN BRANCHES OF INTERNATIONAL LAWThe International Law of the Use of Force and Transnational Organised CrimeIntroductionAn Introduction to the Threat and Use of Force in International LawOn the Notion of Transnational Organised CrimeSelf-Defence against Transnational Organised CrimeOrganised criminal groups as de facto regimesState responsibility for organised criminal groupsOrganised criminal groups as new subjects of international lawTransnational Organised Crime and the Security CouncilLimitations of competence when dealing with transnational organised crimePractice of the Security CouncilConclusionInternational Humanitarian Law and Transnational Organised CrimeIntroductionWarfare as Transnational Organised CrimeThe Legal Status of Organised Crime Groups and their Members during Armed ConflictsInternational armed conflictsOrganised crime groups as parties to an international armed conflictIndividual status of members of organised crime groupsNon-international armed conflictOrganised crime groups as parties to an internal armed conflictIndividual status of members of organised crime groupsThe discussion on transnational armed conflicts: an overviewThe transnational character of conflicts with organised crimeThe potential for armed conflict created by organised crimeTransnational Organised Crime and ‘Failing States’‘War among People’: The Rules of IHL have Come to their LimitsFinal ConsiderationsTransnational Criminal Organisations and Human RightsIntroductionThe State of the Art: Publications, Policies, and Legal PracticesLiterature reviewPolicy and lawJurisprudenceTCOs’ Crimes and Human RightsCrimesHuman rightsMoving beyond the dichotomy or not?Holding TCOs Accountable: International State Responsibility vs International Criminal LawThe concept of state responsibilityAttribution and due diligenceThe Fight against TCOs as a Threat to Human RightsGeneral human rights restrictions by statesSpecific human rights violations by states vis-a-vis legal and illegal corporate entitiesThe problem of‘criminalization’Final Conclusions: Criminal Offences or Human Rights Violations: What is the Difference?Law of the Sea and Transnational Organised CrimeIntroductionMaritime Zones and Jurisdiction under the International Law of the SeaExercise of Jurisdiction over Ships involved in Transnational Organised CrimeExercise of jurisdiction over foreign ships situated in the internal watersExercise of jurisdiction over foreign ships situated in the territorial seaExercise of prescriptive jurisdictionExercise of enforcement jurisdictionExercise of enforcement jurisdiction over foreign ships situated in the contiguous zoneExercise of jurisdiction over foreign ships situated on the high seasInterdiction of ships suspected of being engaged in piracyInterdiction of ships suspected of being engaged in the slave tradeInterdiction of ships suspected of being engaged in human traffickingInterdiction of ships suspected of being engaged in drug traffickingInterdiction of ships suspected of being engaged in the transport of WMDScope of Interdiction MeasuresEnforcement Measures and Human RightsConclusionTransnational Organised Crime and International Criminal LawIntroductionNarrowing the Scope and Defining Transnational Organised CrimeTransnational Organised Crime and International Criminal Law de lege lataTransnational organised crimes as core crimes under the Rome StatuteThe metamorphosis of apartheid, the attack against UN personnel, and tortureTransnational offences covered by the core crimes in general?Organised crime as subject matter of the Rome StatuteTransnational organised crime as crimes under the jurisdiction of national courts but triggered by international lawThe ‘next generation’ of international criminal lawThe Court of Bosnia and HerzegovinaHow Sierra Leone differsTransnational Organised Crime and International Criminal Law de lege ferenda—TOC as Future Core CrimesThe method of establishing international crimesInternational jurisdiction over transnational offences by codifying customary international law (method 1)The establishment of crimesInternational jurisdiction for these crimes: universality by virtue of public international lawInternational jurisdiction over transnational offences by treaties (method 2)International jurisdiction over transnational offences by virtue of plain international consent (method 3)The establishment of crimesInternational jurisdiction for such crimes: no automatismConclusionV PROCEDURAL AND TECHNOLOGICAL CHALLENGES FOR THE INVESTIGATION OF TOC —POLICING, TECHNOLOGICAL ASPECTS, EFFICIENCY, EXCHANGE OF INFORMATION, ABUSE OF POWER, AND TACTICS FOR CONDUCTING INVESTIGATIONS Policing TOC—The National Perspective. Challenges, Strategies, TacticsIntroductionTraditional Organised Crime and Transnational Organised CrimeChallenges for policing TOC versus OCPositive Approaches to Tackling TOC from the National PerspectiveThe Law Enforcement Toolkit to Tackle TOCLegislation and statuteNational strategiesIntelligence gatheringElectronic surveillanceUndercover operationsUndercover operations using the webForfeiture and seizure of assetsUse of informants and whistle blowersWitness protectionAnti-corruption measuresFinancial monitoringUse and Types of TechnologyPolicing TOCObstacles and Limitations in the Fight against TOCConclusionPolicing Transnational Organised Crime—The International PerspectiveIntroductionPrincipal International Law-Enforcement AuthoritiesInterpolEuropolFrontexThe Maritime Analysis and Operations CentreUnited Nations PoliceThe liaison officer networkRegional agencyInternational InvestigationsAn analogy with epidemicsExchange of data, information, and evidenceUndercover agents and confidential informantsExtraditionUse of covert technological investigative techniquesInternational Law Enforcement Cooperation: A Critical AppraisalThe epistemological ruptureMilitarizationScope of international investigationsConclusionSelect Bibliography
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