Transnational Criminal Organisations and Human Rights
Math Noortmann and Dawn Sedman
When we reflect on ‘crimes’ and ‘human rights’, we enter different conceptual and normative traditions in (international) legal scholarship with respect to the authority of the state and the position of natural and legal persons. Where criminal law routinely revolves around the idea of the state as the (collective) victim, and the individual/organisation as the offender, human rights law habitually focuses on the state as the wrongdoer and the individual/organisation as the victim. That traditional distinction, however, is increasingly blurring as—on one hand—the pursuit and prosecution of criminal organisations is subjected to a growing set of human rights, and—on the other hand—the activities of a variety of ‘non-state actors’ have ‘horizontalized’ human rights, i.e. human rights violations can be attributed to such non-state actors as businesses, armed opposition groups, non-governmental organisations, and indeed organisations that are rightfully or wrongfully labelled as ‘criminal’, such as terrorist organisations, mafias, bikers, and gangs.
The relationship between criminal organisation and the transnationalization of organised criminal activities on one side and human rights on the other raises two pertinent questions, which feature prominently in the debates on the responsibility of businesses and armed opposition groups for example, but which are under-explored with respect to criminal organisations. The first one is based on the idea that the (transnational) activities of criminal organisations violate human rights and asks whether the labelling of transnational criminal offences as human rights violations is useful. The second question relates to the holding of human rights by (criminal) organisations and their members and queries the means and methods of criminal pursuit and prosecution. The two questions are clearly interlinked as organisations may at the same time be accused of having violated human rights and/or committed a crime, and claim that their activities or the organisation is protected by human rights, most importantly such rights as freedom of speech or association.
The question what constitutes a criminal organisation is a vexed one and runs as much through this chapter as it runs through many of the other chapters, and we will not attempt to solve that question right here and now. What is particularly relevant for this chapter, however, is that there is a socio-political trend to explicitly criminalize organisations such as biker groups, and radical political and religious organisations, thereby de facto outlawing their members who become criminal by association, as Peterke and Noortmann argued.
In this chapter we will address both questions by first looking at the general discourse as it emerges from academic literature, policy debates, and jurisprudence (section 19.2 of this chapter). After this general expose, we conceptually juxtapose criminal offences and human rights violations in order to argue that the difference between a criminal law approach and a human rights approach is one of substance, but that the dividing line is vague. The discourses on criminal law and human rights law seem to focus on the different ends of the perpetrator—victim equation (section 19.3). After arguing for a clearer, distinctive conception of criminal law and human rights law, we discuss the role of state responsibility versus different schemes of individual/organisational criminal accountability. Based on the ‘horizontalization’ of human rights, corporate actors increasingly face (civil) law suits. That trend seems to have found little resonance in the field of activities that are associated with criminal organisations and seems to revamp the traditional notions of the role of the state in criminal law enforcement (section 19.4). Section 19.5 addresses the potential danger that lies in the disregard for human rights in the so- called wars against different types of organised crime such as the war on drugs, the war on terrorism, or the war on trafficking. The danger lies inherently in the labelling of the counter-measures against these forms of organised crime as ‘wars’. The balance between the policing and prosecution of transnational crimes and the upholding of human rights is a precarious one and subject to abuse. Finally, we draw some conclusions on the relationship between the activities of transnational criminal organisations and human rights and the danger that the balance tips towards law enforcement, and argue that transnational criminal law enforcement and the prosecution of transnational criminal organisations requires a robust and rigorous supervision mechanism that secures the rights of individuals and organisations engaged in transnational criminal activities.
-  See e.g. Andrew Clapham, Human Rights Obligations of Non-State Actors, Oxford, OUP, 2006;Philip Alston (ed.), Non-State Actors and Human Rights, Collected Courses of the Academy of EuropeanLaw, Vol. 13/3, Oxford, New York, OUP, 2005; M. T. Kamminga and Saman Zia-Zarifi (eds), Liability ofMultinational Corporations under International Law, Vol. 7, Studies and Materials on the Settlement ofInternational Disputes (SMSID), The Hague, Kluwer Law International, 2000.
-  To the extent that criminal organisations are included as ‘powerful groups within a state’ that enjoy‘de facto immunity from prosecution’ reference is generally made to the developments in internationalcriminal law, in particular the establishment of the International Criminal Court (ICC), whose jurisdiction is rather limited in terms of ‘ordinary’ crimes. See Thomas Buergenthal, ‘The normative andinstitutional evolution of international human rights’, (1997) 19 Human Rights Quarterly (4), 703, p. 718.
-  See Arthur Veno, The Mammoth Book of Bikers, New York, Carroll & Graf Publishers, 2007, pp.323-414; Cas Mudde (ed.), Racist Extremism in Central and Eastern Europe, Abingdon, Routledge, 2005.
-  Sven Peterke and Math Noortmann, ‘Transnationale kriminelle Organisationen im Volkerrecht: mehrals Outlaws?’, (2015) Archive des Volkerrechts 53.
-  Bruce L. Benson, David W. Rasmussen, and David L. Sollars, ‘Police bureaucracies, their incentives,and the war on drugs’ (1995) 83 Public Choice (1-2), 21; David P. Stewart, ‘Internationalizing the war ondrugs: the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances’, (1989)Denver Journal of International Law & Policy 18, 387; Daniel Heilmann, ‘The international control of illegaldrugs and the UN treaty regime: preventing or causing human rights violations?.’ , available at: http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=daniel_heilmann, accessed 26 January 2016.
-  David Luban, ‘The war on terrorism and the end of human rights’, Washington DC, GeorgetownUniversity Law Center, 2002; Ruth Reitan, ‘Human rights in US policy: a casualty of the “war on terrorism”?’, (2003) 7 International Journal of Human Rights (4); Joan Fitzpatrick, ‘Speaking law to power: thewar against terrorism and human rights’, (2003) 14 EJIL (2), 241.
-  Catherine Dauvergne, And Yet We Are Not Saved: Hegemony and the Global War on HumanTrafficking, Faculty of Law, University of Toronto, 2005; Valerie Payne, ‘On the road to victory inAmerica’s war on human trafficking: landmarks, landmines, and the need for centralized strategy’,paper presented at the First Annual Interdisciplinary Conference on Human Trafficking, 2009; KamalaKempadoo, ‘The war on human trafficking in the Caribbean’, (2007) 49 Race & Class (2), 79.