This article has been written by Radhika Subhash Tapkir pursuing a Privacy Technologist Training Program from Skill Arbitrage.

This article has been edited and published by Shashwat Kaushik.

Introduction

Crimes that are beyond borders and spread across continents are what make their nature ‘transnational’. The words ‘organised’ and ‘crime’ reflect the evolution of how criminals organise their activities and relationships while simultaneously advancing the nature and extent of crimes being committed. Transnational organised crimes pose a grave threat to the global public and their goods, including public safety and governmental institutions. International law plays a crucial role in combating this danger through legal frameworks for cooperation among nations. 

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This article is going to discuss the key aspects of UNTOC, challenges and opportunities, and other aspects of transnational crimes.

What is transnational organized crime

Transnational Organised Crime (TOC), in simple words, refers to any criminal activity/activities transcending state boundaries that compromise the integrity of the governmental institutions of a state through undermining the rule of law and are committed by criminal organisations that work in a structured and coordinated fashion.

The crimes that are committed are often of a serious nature, but they can vary in degree. There is also no particular pattern for the structure of transnational organised criminals; they vary in nature, hierarchy, groups (homogeneous or heterogeneous), networks, etc.

There are certain elements, as mentioned in Article 3(1) of the UNTOC, that weave the concept of organised crime in relation to international law:

  1. Organised criminal group- As stated in Article 2(a) of the UNTOC, an ‘organised criminal group’ is defined as a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit.’
  2. Serious crime- As stated in Article 2(b) of the UNTOC, a ‘serious crime’ is defined as a ‘conduct constituting an offence punishable by maximum deprivation of liberty of at least four years or a more serious penalty.’
  3. Structured group- A ‘structured group’ is defined under Article 2(c) as ‘a group that is not randomly formed for the immediate commission of an offence.’ Further, it is said that such a group lacks – formally defined roles for its members, a developed structure, and continuity of membership. 
  4. Transnational- In Article 3(2) of the UNTOC, the ‘Scope of Application’ of the Convention is discussed. This scope states that an offence will be of ‘transnational’ nature if it is committed in-
    1. ‘more than one state;
    2. one state, but the substantial part of its planning, preparation, direction or control took place in another state;
    3. one state, but involves an organised criminal group that engages in criminal activities in more than one state;
    4. one state but has substantial effects in another state.’ 

Examples of transnational organized crimes

Drug trafficking

It is a profitable business for criminals and organised drug cartels around the world. Drug trafficking can involve the cultivation, manufacturing, distribution, and direct sale of illegal drugs to markets /consumers. These drugs could be either naturally produced, such as cocaine, heroin, marijuana, opium, etc., or man-made/synthetic drugs, which can range from Fentanyl, Ecstasy, Morphine, and OxyContin, etc.

The annual market turnover of US$400 billion is considered to be a figure for the worldwide distribution and sale of drugs.

Human trafficking

Human trafficking refers to the sale of humans, especially for the purposes of sexual or labour based work/exploitation. More than 20% of trafficked persons worldwide are said to be children. As per the report released  by the International Labour Organisation in September 2022 regarding forced labour and slavery, it was estimated that an ‘estimated 6.3 million people are in a situation of forced commercial sexual exploitation at any given point of time.’

Forced labour saw exponential growth after the pandemic of COVID-19. The previous number of 24.9 million in 2016 went up to 27.4 million in 2021, with the Asia-Pacific being the host for the largest forced/slave labour, i.e., 15.1 million.

Counterfeit goods

The sale of fraudulent items and goods specifically for fashion brands, food items, and medicines has risen in the last two decades due to an inherent rise in population and demand. Much of the counterfeit items imported or exported pose a hazard to public health and safety in general.

Annually, African countries see an influx of counterfeit and fraudulent medicines and vaccines, resulting in an increase in black markets, deaths of individuals, and criminal tendencies. The basic medicines for malaria and TB can result in deaths or resistance to drugs due to their fraudulent nature.

Similarly, almost an estimated 121 billion euros worth of counterfeit goods enter European markets each year.

Smuggling of migrants

Migrants are often smuggled into borders without legal permits, proofs, or valid identification. Oftentimes, these migrants are kidnapped, raped, brutalised, and stripped of their basic human rights in the process of being smuggled. 

The routes for such smuggling are often sea routes (migrants are packed in containers for days with no food or water or access to toilets), through land borders (for example, 88% of smuggled migrants each year in the USA are Mexicans), and in the case of Africa, it is through desert routes (it is estimated that each year more than 1000 people die trying to cross the Sahara Desert).

Trafficking of firearms

The trade of illicit firearms to various terrorist and mafia organisations as well as individual citizens has gained prominence in recent times. According to Europol statistics, an estimated EUR 236 million per year globally is generated through the illegal firearm trade.

Criminal organisations around the world have advanced themselves with time, utilising cyber resources and forming new trends in their global ‘work networks’. The newer trend of strategically recruiting flexible, dynamic, and capable criminals who are responsible for the creation of a heterogenous organisation to establish a wider and more diverse presence in multiple states for easier ways to commit serious crimes.

To confront and deal with this complex problem, a solution involving the coordination of countries as well as international laws was required. The looming shadow of TOC on the resources of various countries, endangering public health and safety, causing economic disbalances, dehumanising individuals, and fostering illicit arms trade to cause conflict transcends national boundaries. This is where the UN steps in, the United Nations Convention against Transnational Organised Crime (UNTOC).

The United Nations Convention against transnational organized crime

The UNTOC was signed in Italy, in December 2000 with the motto, ‘If crime crosses borders, so must law enforcement.’ It stands as a cornerstone, outlining a comprehensive framework for cooperation.

The UNTOC is not the lone sentinel. The protocol to prevent, suppress, and punish trafficking in persons, especially women and children, reinforces and obligates every individual state to criminalise, investigate, and protect victims of this heinous crime. Similarly,  the protocol against the smuggling of migrants by land, sea, and air addresses the exploitation of vulnerable individuals seeking a better life. Other instruments, like the Convention on Psychotropic Substances and the International Convention on the Suppression of Financing of Terrorism, are a few of the interconnected aspects of organised crime.

Manifestation of a global problem: different countries, different ways

There have been several cases of transnational organised crime being dismantled. However, due to the constantly evolving nature of this type of crime, it is difficult to provide an exhaustive list. Listed below are a few examples, as per the respective regions:

USA/Africa

The WHO states that 50% of the drugs for sale on the internet are fake and even though the online dispensaries may look legitimate, a survey of 10,000 of them done by America’s National Association of Boards of Pharmacy (NABP) found that 9938 do not comply with the NABP Patient Safety and Pharmacy Practice Standards or the US State and Federal Laws. Most of them were based out of Canada, but in reality, they were merely a front for illegal offshore operations. 

In 2015, The Lancet estimated the market to be worth ranging from US $70 billion to $200 billion. WHO has put the annual death toll from counterfeit drugs at around 1 million every year. The largest single group is in Africa, where around 20,000 people are said to die each year as a result of fake antimalarial drugs.

Asia/Pacific

The Asia/Pacific region has posed serious threats to the theft of intellectual property rights, especially those originating from China and Southeast Asia. Another crime that has gripped Asia and the Asia/Pacific is human trafficking and smuggling. Cheng Chui Ping was an infamous human smuggler who successfully smuggled more than thousands into the US in her criminal career.

Latin Americas

An approximate US $6.6 billion was annually generated in the form of illicit proceeds for human smuggling networks in a 2010 report, The Globalisation of Crime: A Transnational Organised Crime Threat Assessment by the UNODC for the smuggling of persons from Latin America to the US.

Southwest Asia/Afghanistan

The crime-terror nexus of Afghanistan and Pakistan for Taliban related activities has given a bad reputation to the region, along with an ever increasing problem of terror funded activities and drug smugglers. Another big name that pops up amidst this is Crime Lord Dawood Ibrahim, who is the leader of ‘D Company’ wanted by Interpol.

Technical assistance: cooperation by states for dealing with transnational organized crime

The United Nations Convention against Transnational Organised Crime (UNTOC) is the most comprehensive international treaty on transnational organised crime. It was adopted by the United Nations General Assembly in 2000 and entered into force in 2003. UNTOC provides a framework for international cooperation to combat transnational organised crime. It includes provisions on extradition, mutual legal assistance, and asset recovery.

In addition to UNTOC, there are a number of other international and regional agreements that address transnational organised crime. These include the Palermo Protocol on Trafficking in Persons, the Smuggling of Migrants Protocol, and the Firearms Protocol.

National laws on transnational organised crime vary from country to country. Some countries have specific laws that address transnational organised crime, while others rely on general criminal laws. There is a growing trend towards the enactment of specific laws on transnational organised crime.

The effectiveness of laws on transnational organised crime depends on a number of factors, including the level of international cooperation, the capacity of law enforcement agencies, and the political will to combat transnational organised crime.

As stated in Article 29 of UNTOC, it is the mutual cooperation and coordination of states that facilitate a smooth collaboration, communication, information exchange, policy development, and involvement of judicial authorities to combat organised crime and organisations. Furthermore, Article 30(2) of UNTOC implies that states should provide financial and material assistance to developing countries to fight and implement this Convention.

Here are some specific provisions under the UNTOC that relate to international cooperation:

Extradition: Article 16 of UNTOC

‘Extradition’ refers to the process of returning a fugitive/criminal to their original jurisdiction, where they were wanted for their criminal transgressions.

Mutual legal assistance: Article 18 of UNTOC

Article 18 establishes the obligation to provide mutual legal assistance by the state in investigations and judicial proceedings in relation to offences covered under the Convention (as per Article 3). Here are a few  cases where legal assistance was sought by various states in different scenarios:

  • Italy- In 2015, ‘Italy sought mutual legal assistance from Turkey as per Article 18 of the UNTOC and the European Convention on Mutual Assistance in Criminal Matters to secure evidence against a member of an organised criminal group engaged in migrant smuggling.’
  • Costa Rica- A request was put in for mutual legal assistance by Costa Rica  to Guatemala to provide information about certain persons (details of cross-border movement and financial transactions, etc.) in connection with a money-laundering investigation.
  • Serbia- Serbia requested Uruguay, in a drug-trafficking investigation, to receive evidentiary items relating to the seizure of illegal drugs.
  • Colombia- The Columbian authorities requested legal assistance from Bolivia to seek information regarding certificates of registration and ownership of an aeroplane for seizure and confiscation, etc.
  • Senegal- In this case, the Senegalese authorities, as per Article 18 of the UNTOC, sought mutual legal assistance from Monaco in order to request an investigation into illicit enrichment through offshore companies and bank accounts.

Confiscation: Article 13 and 14 of the  UNTOC

Confiscation, as defined in Article 2(g) of the UNTOC, means ‘permanent deprivation of property by order of court or other competent authority.’ 

As per Article 13, states must adopt legislation authorising ‘confiscation’ of proceeds of crime, meaning any property derived from or used to commit certain offences. It can occur before, during, or after criminal proceedings. It can also target both direct and indirect proceeds, including substitute assets. The most crucial factors in the disposal process are – transparency and accountability.

There is a broad range of investigation tools that are allowed, including surveillance and financial record disclosure. Article 14 talks about the disposal of confiscated property through selling, for social programmes, or destroying it, depending on the nature and value associated with it. Proceeds from the sale are directed towards law and enforcement, victim assistance, or social development programmes. 

Transfer of criminal proceedings: Article 21 of UNTOC

For the use of Article 21 in any given case, two things need to happen: firstly, both states involved (receiving and transferring states) need to share information and evidence, evaluate the jurisdiction for the issues involved, and secondly, effectively transfer the proceedings if required with proper consultations and coordination.

Article 19 of UNTOC

As per Article 19, two models of joint investigations are usually deployed, i.e.,

  • Two-country coordination: Here the teams with shared goals work in parallel, aided by liaisons or formal legal requests. In this type of coordination, the officers may relocate based on existing legal frameworks or practices. 
  • Integrated joint teams: Here the officers from multiple jurisdictions (at least 2) work together directly. Furthermore, the teams can be either active or passive, i.e., ‘advisory/supportive’ (passive) or ‘have operational powers’ (active).

Here is an example of ‘joint investigations’ carried out on the basis of Article 19 of the Organised Crime Convention, which was a collaboration between Brazilian, Portuguese, and Spanish authorities in the investigation of an organised criminal group engaged in trafficking cocaine from Brazil through Portugal to Spain. Furthermore, in this case, Portugal sent letters to Brazil, Spain, the USA, and Switzerland to conduct searches of various private homes and interview suspects as well as businesses in relation to such kinds. Eventually, after the investigation and evaluation of evidence and witnesses, the Portuguese Supreme Court of Justice convicted the suspects and sentenced them to 14 years of imprisonment. Later on, an appeal regarding the sentence led to its reduction to 11 years.

Special investigative techniques: Article 20 of UNTOC

Article 20 endorses the usage of special investigative techniques such as: 

  • Controlled delivery,
  • undercover operations, and
  • electronic surveillance.

There have been requests sent in 2017 by the Netherlands for surveillance of persons as a part of a mutual legal assistance request to Costa Rica.

Furthermore, in the absence of any agreements between two states for using special investigative techniques, they can call upon state cooperation on a case-to-case basis, as stated in Article 20(3).

Law enforcement corporation: Article 27 of UNTOC

It states that there needs to be an established channel of ‘competent authorities, agencies, and services in order to facilitate the secure and rapid exchange of information concerning all aspects of offences covered under the Convention.

The objective of this provision is to encompass all forms of cooperation in a broad category. In layman’s terms, it obliges the states to have effective and smooth communication between their respective law enforcement agencies.

Examples of such cooperation between various law enforcement agencies can be viewed in the SHERLOC portal (an initiative by the UNODC). It is a case law database, and also helps in disseminating information in regards to the implementation of the legal frameworks of the UNTOC and others.

Challenges to combating transnational organized crime

There are a number of challenges to combating transnational organised crime. These include:

  • The complexity of transnational organised crime networks.
  • The ability of transnational organised crime networks to adapt to new law enforcement strategies.
  • The corruption of government officials.
  • The lack of resources to combat transnational organised crime.

Effectiveness of national laws against transnational organized crime

The effectiveness of national laws against transnational organised crime is influenced by a number of factors, including:

  • The level of political commitment to combating transnational organised crime: Countries that prioritise the fight against transnational organised crime are more likely to enact effective laws and allocate sufficient resources to law enforcement agencies.
  • The capacity of law enforcement and judicial systems: Countries with well-trained and equipped law enforcement officers and an independent judiciary are better able to investigate and prosecute cases of transnational organised crime.
  • The level of international cooperation: Transnational organised crime often involves multiple countries, so international cooperation is essential for effective law enforcement. Countries that cooperate with each other in sharing information, conducting joint investigations, and extraditing criminals are more likely to be successful in combating transnational organised crime.

Additional information

  • The United Nations Office on Drugs and Crime (UNODC) is the lead United Nations agency on transnational organised crime. UNODC provides technical assistance to countries to help them implement UNTOC and other international agreements on transnational organised crime.
  • The International Criminal Police Organisation (INTERPOL) is a global law enforcement organisation that works to combat transnational organised crime. INTERPOL maintains a database of information on transnational organised crime networks and fugitives.
  • The Financial Action Task Force (FATF) is an intergovernmental organisation that sets standards to combat money laundering and terrorist financing. The FATF has developed a number of recommendations on how to combat money laundering and terrorist financing related to transnational organised crime.

Conclusion

It is the effective implementation of international laws, the UN, and the cooperation of state laws that are essential to curbing the rise and spread of transnational organised crime. The governments should fully understand the consequences of TOC and address the global threat with mutual support.

States need to focus on an approach that goes beyond criminal justice and aligns with the goals of achieving global peace, safeguarding human rights, and effectively curbing the conflicts/crimes inflicted on vulnerable communities around the globe.

References

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