Transnational crime

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Transnational crimes are crimes that have actual or potential effect across national borders and crimes that are intrastate but offend fundamental values of the international community. [1] The term is commonly used in the law enforcement and academic communities. Transnational organized crime (TOC) refers specifically to transnational crime carried out by crime organizations. [2]

Contents

The word transnational describes crimes that are not only international (that is, crimes that cross borders between countries), but crimes that by their nature involve cross-border transference as an essential part of the criminal activity. Transnational crimes also include crimes that take place in one country, but their consequences significantly affect another country and transit countries may also be involved. Examples of transnational crimes include: human trafficking, people smuggling, smuggling/trafficking of goods (such as arms trafficking and drug trafficking and illegal animal and plant products and other goods prohibited on environmental grounds (e.g. banned ozone depleting substances), sex slavery, terrorism offences, torture and apartheid.

Transnational crimes may also be crimes of customary international law or international crimes when committed in certain circumstances. For example, they may in certain situations constitute crimes against humanity.

In failed or failing states

The international community is confronted with an increasing level of transnational crime in which criminal conduct in one country has an impact in another or even several others. Drug trafficking, human trafficking, computer crimes, terrorism, and a host of other crimes can involve actors operating outside the borders of a country which might have a significant interest in stemming the activity in question and prosecuting the perpetrator. Contemporary transnational crimes take advantage of globalization, trade liberalization and exploding new technologies to perpetrate diverse crimes and to move money, goods, services and people instantaneously for purposes of perpetrating violence for political ends. [3]

Moreover, problems of weakened states and transnational crime create an unholy confluence that is uniquely challenging. When a criminal operates outside the territory of an offended state, the offended state might ordinarily appeal to the state from which the criminal is operating to take some sort of action, such as to prosecute the offender domestically or extradite the offender so that he or she may face punishment in the offended state. Nonetheless, in situations in which a government is unable (or unwilling) to cooperate in the arrest or prosecution of a criminal, the offended state has few options for recourse. [3] Furthermore, often state actors are part of transnational criminal dynamics in conflict zones and benefit from the smuggling of illicit goods. [4]

International cooperation

Foreign and Commonwealth Office.
Home Secretary Theresa May with Malaysia Minister of Home Affairs Dato' Seri Hishammuddin Tun Hussein sign a "Memorandum of Understanding on transnational crime", 14 July 2011. Memorandum of Understanding on transnational crime (5937407114).jpg
Foreign and Commonwealth Office.
Home Secretary Theresa May with Malaysia Minister of Home Affairs Dato’ Seri Hishammuddin Tun Hussein sign a "Memorandum of Understanding on transnational crime", 14 July 2011.

Given the limits on the exercise of extraterritorial enforcement jurisdiction, states have developed mechanisms to cooperate in transnational criminal matters. The primary mechanisms used in this regard are extradition, lawful removal, and mutual legal assistance. [3]

Extradition is the mechanism by which one sovereign requests and obtains custody of a fugitive located within the jurisdiction and control of another sovereign. It is an ancient mechanism, dating back to at least the thirteenth century BCE, when an Egyptian Pharaoh negotiated an extradition treaty with a Hittite King. Through the extradition process, a sovereign (the requesting state) typically makes a formal request to another sovereign (the requested state). If the fugitive is found within the territory of the requested state, then the requested state may arrest the fugitive and subject him or her to its extradition process. The extradition procedures to which the fugitive will be subjected are dependent on the law and practice of the requested state. [3]

Aside from mechanisms for the return of fugitives, states have also developed mechanisms for requesting and obtaining evidence for criminal investigations and prosecutions. When evidence or other forms of legal assistance, such as witness statements or the service of documents, are needed from a foreign sovereign, states may attempt to cooperate informally through their respective police agencies or, alternatively, resort to what is typically referred to as requests for "mutual legal assistance" [3] The practice of mutual legal assistance developed from the comity-based system of letters rogatory, though it is now far more common for states to make mutual legal assistance requests directly to the designated "Central Authorities" within each state. In contemporary practice, such requests may still be made on the basis of reciprocity but may also be made pursuant to bilateral and multilateral treaties that obligate countries to provide assistance. Many countries are able to provide a broad range of mutual legal assistance to other countries even in the absence of a treaty. [3]

The financial crime expert Veit Buetterlin explained that transnational crime types such as counterfeiting, smuggling, human trafficking, drug trafficking, illegal logging, illegal mining, or illegal wildlife trade can only be effective if the involved crime networks can launder the proceeds. [5] He also mentioned that the international community needs to overcome a state where “criminals act internationally, while prosecutors stop at borders.” [6]

See also

Related Research Articles

<span class="mw-page-title-main">Organized crime</span> Groupings of highly centralized criminal enterprises

Organized crime is a category of transnational, national, or local group of centralized enterprises run to engage in illegal activity, most commonly for profit. While organized crime is generally thought of as a form of illegal business, some criminal organizations, such as terrorist groups, rebel forces, and separatists, are politically motivated. Many criminal organizations rely on fear or terror to achieve their goals or aims as well as to maintain control within the organization and may adopt tactics commonly used by authoritarian regimes to maintain power. Some forms of organized crime simply exist to cater towards demand of illegal goods in a state or to facilitate trade of goods and services that may have been banned by a state. Sometimes, criminal organizations force people to do business with them, such as when a gang extorts protection money from shopkeepers. Street gangs may often be deemed organized crime groups or, under stricter definitions of organized crime, may become disciplined enough to be considered organized. A criminal organization can also be referred to as an outfit, a gang, crime family, mafia, mob, (crime) ring, or syndicate; the network, subculture, and community of criminals involved in organized crime may be referred to as the underworld or gangland. Sociologists sometimes specifically distinguish a "mafia" as a type of organized crime group that specializes in the supply of extra-legal protection and quasi-law enforcement. Academic studies of the original "Mafia", the Italian Mafia, as well as its American counterpart, generated an economic study of organized crime groups and exerted great influence on studies of the Russian mafia, the Chinese triads, the Hong Kong triads, and the Japanese yakuza.

<span class="mw-page-title-main">People smuggling</span> Illegal transportation of people

People smuggling, under U.S. law, is "the facilitation, transportation, attempted transportation or illegal entry of a person or persons across an international border, in violation of one or more countries' laws, either clandestinely or through deception, such as the use of fraudulent documents".

<span class="mw-page-title-main">Extradition</span> Transfer of a suspect from one jurisdiction to another by law enforcement

In an extradition, one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, into the custody of the other's law enforcement. It is a cooperative law enforcement procedure between the two jurisdictions, and depends on the arrangements made between them. In addition to legal aspects of the process, extradition also involves the physical transfer of custody of the person being extradited to the legal authority of the requesting jurisdiction.

Extraterritorial jurisdiction (ETJ) is the legal ability of a government to exercise authority beyond its normal boundaries.

<span class="mw-page-title-main">United Nations Office on Drugs and Crime</span> Intergovernmental organization

The United Nations Office on Drugs and Crime is a United Nations office that was established in 1997 as the Office for Drug Control and Crime Prevention by combining the United Nations International Drug Control Program (UNDCP) and the Crime Prevention and Criminal Justice Division in the United Nations Office at Vienna, adopting the current name in 2002.

<span class="mw-page-title-main">United Nations Convention Against Corruption</span> Anti-corruption treaty

The United Nations Convention Against Corruption (UNCAC) is the only legally binding international anti-corruption multilateral treaty. Negotiated by member states of the United Nations (UN) it has been adopted by the UN General Assembly in October 2003 and entered into force in December 2005. The treaty recognises the importance of both preventive and punitive measures, addresses the cross-border nature of corruption with provisions on international cooperation and on the return of the proceeds of corruption. The UN Office on Drugs and Crime (UNODC) in Vienna serves as Secretariat for the UNCAC. UNCAC's goal is to reduce various types of corruption that can occur across country borders, such as trading in influence and abuse of power, as well as corruption in the private sector, such as embezzlement and money laundering. Another goal of the UNCAC is to strengthen international law enforcement and judicial cooperation between countries by providing effective legal mechanisms for international asset recovery.

<span class="mw-page-title-main">Mutual legal assistance treaty</span> Treaty to enforce public or criminal laws

A mutual legal assistance treaty (MLAT) is an agreement between two or more countries for the purpose of gathering and exchanging information in an effort to enforce public or criminal laws. A mutual legal assistance request is commonly used to formally interrogate a suspect in a criminal case, when the suspect resides in a foreign country.

The European Arrest Warrant (EAW) is an arrest warrant valid throughout all member states of the European Union (EU). Once issued, it requires another member state to arrest and transfer a criminal suspect or sentenced person to the issuing state so that the person can be put on trial or complete a detention period. It is a simplified cross-border judicial surrender method, and has replaced the lengthy extradition procedures that used to exist between member states. The EAW has been in force since 1 January 2004 in all Member States.

In law, rendition is a "surrender" or "handing over" of persons or property, particularly from one jurisdiction to another. For criminal suspects, extradition is the most common type of rendition. Rendition can also be seen as the act of handing over, after the request for extradition has taken place.

In the United States, extradition law is a collection of federal laws that regulate extradition, the formal process by which a fugitive found in the United States is surrendered to another country or state for trial, punishment, or rehabilitation.

<span class="mw-page-title-main">Transnational organized crime</span> Organized crime across national borders

Transnational organized crime (TOC) is organized crime coordinated across national borders, involving groups or markets of individuals working in more than one country to plan and execute illegal business ventures. In order to achieve their goals, these criminal groups use systematic violence and corruption. Common transnational organized crimes include conveying drugs, conveying arms, trafficking for sex, toxic waste disposal, materials theft and poaching.

Double criminality, or dual criminality, is a requirement in the extradition law and international prisoner transfers of many countries. It states that a suspect can be extradited from one country to stand trial for breaking a second country's law only if a similar law exists in the extraditing country, and that any crime in any sentencing country must also be a crime in any other country to receive any internationally transferred prisoners.

In law, the principle of aut dedere aut judicare refers to the legal obligation of states under public international law to prosecute persons who commit serious international crimes where no other state has requested extradition. However, the Lockerbie case demonstrated that the requirement to extradite or prosecute is not a rule of customary international law. The obligation arises regardless of the extraterritorial nature of the crime and regardless of the fact that the perpetrator and victim may be of alien nationality. It is generally included as part of international treaties dealing with an array of transnational crimes to facilitate bringing perpetrators to justice.

Child migration or "children in migration or mobility" is the movement of people ages 3–18 within or across political borders, with or without their parents or a legal guardian, to another country or region. They may travel with or without legal travel documents. They may arrive to the destination country as refugees, asylum seekers, or economic migrants.

<span class="mw-page-title-main">International asset recovery</span> Any effort by governments to repatriate the proceeds of corruption hidden in foreign jurisdictions

International asset recovery is any effort by governments to repatriate the proceeds of corruption hidden in foreign jurisdictions. Such assets may include monies in bank accounts, real estate, vehicles, arts and artifacts, and precious metals. As defined under the United Nations Convention against Corruption, asset recovery refers to recovering the proceeds of corruption, rather than broader terms such as asset confiscation or asset forfeiture which refer to recovering the proceeds or instrumentalities of crime in general.

A Central Authority is an agency or organization that is designated to play a key facilitating role in the implementation and operation of an international treaty in public and private international law.

<span class="mw-page-title-main">Bali Process</span>

The Bali Process is an official international forum, established in 2002, to facilitate discussion and information sharing about issues relating to people smuggling, human trafficking, and related transnational crime and appropriate responses to these issues.

An extraterritorial operation in international law is a law enforcement or military operation that takes place outside the territory or jurisdiction of the state whose forces are conducting the operation, generally within the territory of another sovereign state. Under international law, these activities are generally highly restricted, and it is considered a violation of a state's sovereignty if any other state engages in law enforcement or military operations within another state without gaining that state's consent.

<span class="mw-page-title-main">Border and Migration Police (Albania)</span> Law enforcement agency

The Border and Migration Police is a law enforcement branch of the Albanian State Police. It is tasked to oversee and control the transiting of goods and persons across the country's territory. The Border and Migration Police carries out enforcement measures to prevent the illegal border crossings of foreign nationals and nationals engaged in the illegal trafficking of goods. It cooperates with other state police branches in effort to facilitate an efficient management of the borders that are safe and secure.

Maritime drug trafficking in Latin America is the primary mean of transportation of illegal drugs produced in this region to global consumer markets. Cocaine is the primary illegal drug smuggled through maritime routes because all of its cultivation and production is settled in the Andean region of South America.

References

  1. Boister, Neil (2003). "Transnational Criminal Law?". European Journal of International Law. 14 (5): 953, 967–77. doi: 10.1093/ejil/14.5.953 .
  2. United Nations Convention against Transnational Organized Crime
  3. 1 2 3 4 5 6 Dan E. Stigall, U.S. Department of Justice (2013). "Ungoverned Spaces, Transnational Crime, and the Prohibition on Extraterritorial Enforcement Jurisdiction in International Law". Notre Dame Journal of International and Comparative Law. 3 (1). SSRN   2211219.
  4. Weigand, Florian. Conflict and Transnational Crime: Borders, Bullets & Business in Southeast Asia. Edwar Elgar. ISBN   978 1 78990 519 9.
  5. "Fighting the war against terrorist financing". 5 February 2022.
  6. "Defence review - Germany [Video] - Money Laundering Bulletin".