Publisher Council on Foreign Relations
Release Date Last Updated: June 25, 2013
Scope of the Challenge
Over the past two decades, as the world economy has globalized, so has its illicit counterpart. The global impact of transnational crime has risen to unprecedented levels. Criminal groups have appropriated new technologies, adapted horizontal network structures that are difficult to trace and stop, and diversified their activities. The result has been an unparalleled scale of international crime.
As many as fifty-two activities fall under the umbrella of transnational crime, from arms smuggling to human trafficking to environmental crime. These crimes undermine states' abilities to provide citizens with basic services, fuel violent conflicts, and subject people to intolerable suffering. The cost of transnational organized crime (TOC) is estimated to be roughly 3.6 percent [PDF] of the global economy. Money laundering alone costs at least 2 percent of global gross domestic product every year according to United Nations (UN) reports. Drug traffickers have destabilized entire areas of the Western Hemisphere, leading to the deaths of at least fifty thousand people in Mexico alone in the past six years. Counterfeit medicines further sicken ill patients and contribute to the emergence of drug-resistant strains of viruses. Environmental crime—including illegal logging, waste dumping, and harvesting of endangered species—both destroy fragile ecosystems and endanger innocent civilians. Between twelve and twenty-seven million people toil in forced labor—more than at the peak of the African slave trade.
For many reasons, global transnational crime presents nations with a unique and particularly challenging task. To begin with, by definition, transnational crime crosses borders. But the law enforcement institutions that have developed over centuries were constructed to maintain order primarily within national boundaries. In addition, transnational crime affects nations in diverse ways. In many states, political institutions have strong links to transnational crime, and citizens in numerous communities across the world rely on international criminal groups to provide basic services or livelihoods. Finally, the international community requires solid data to gauge the challenge and effectiveness of responses, but data on TOC is notoriously difficult to gather and is often politicized.
Strengths and Weaknesses
Overall Assessment: Archaic system needs reframing
International efforts to address TOC are too weak to address the threat. Strategies focus too little on combating corruption and addressing the increasing interplay of TOC and political power. On balance, multilateral initiatives to fight crime are sector specific and attempt to prosecute TOC without effectively addressing the market that underpins transnational crime globally.
The central legal instrument for fighting TOC is the UN Convention on Transnational Organized Crime (UNTOC). Finalized in 2000 in Palermo, Italy, the convention is the first to address transnational crime as an activity that cannot be adequately curtailed by treaties tailored to one commercial sector. It defines a TOC group as a structured organization with three or more members and establishes legislative standards for nations to implement domestically.
However, the convention's ability to inform [PDF] and influence operational practices is limited. UNTOC does not adequately account for the increasingly activity-based, horizontal structure of criminal syndicates or the growing nexus between organized crime and terrorism, corruption, conflict, public health, global finance, and modern technology. The struggle to implement the convention reflects a certain dearth of global political will to do so. In a number of major world powers, the state itself is captured—or partly captured—by organized crime. The governments of Russia and other Eurasian countries are known to benefit from ties between TOC and energy exports as well as from cybercrime; the Chinese economy earns high profits from counterfeits sold internationally; and many Latin American and West African politicians either are coerced by narcotrafficking groups, or maintain close ties with them.
Most important, the treaty lacks an implementation mechanism that would allow assistance to countries not capable of adhering to the convention's guidelines. The UN Office on Drugs and Crime (UNODC) is charged with helping implement UNTOC on the ground, but its former executive director, Antonio Maria Costa, has rebuked UN member states for neglecting their responsibilities. At a 2010 conference of parties, countries acknowledged the need to revise the convention to be more effective and stressed the importance of implementation. A working group is currently reviewing implementation, which might ultimately lead to a monitoring or capacity-building provision.
UNODC also provides technical assistance and training in constructing legal frameworks and enhancing national enforcement capacity. It serves as a hub for disseminating best practices and data collection on criminal activities. All estimates of the magnitude of TOC, however, are necessarily approximations; criminals obviously do not report their annual earnings or scope of activities, and published estimates are often politicized or rely on shaky data [PDF].
Furthermore, UNODC is 91 percent funded by voluntary contributions and suffers from chronic funding shortages and understaffing. These resource constraints continue to limit the agency's effectiveness.
Beyond UNODC, a succession of UN Security Council (UNSC) open debates, and presidential statements, have slowly and steadily expanded that body's repertoire on TOC. For example, UNSC presidential statement 2009/32 urged the institution to prioritize the TOC threat to benefit peace and security in Africa. In 2010, the UNSC agreed to presidential statement 2010/4, committing member states and the UN to fight transnational crime.
Although the UN General Assembly has also issued many resolutions to fight TOC, most have been vague and irrelevant. The broader UN system has also tackled the issue of transnational crime through specialized agencies, programs, commissions, working groups, campaigns, and even a research institute. The UN Commission on Crime Prevention and Criminal Justice (CCPCJ), for example, reviews UN standards and norms to combat TOC as well as their implementation by member states. The UN's Economic and Social Council (ECOSOC) funds the CCPCJ and guides its work. ECOSOC has also issued a number of important resolutions on the subject, which still guide UNODC's work on crime prevention. For example, a 1995 resolution [PDF] outlined strategies like strengthening community resilience.
Overall, however, the UN's work on TOC remains piecemeal. Units address the issue only within the context of their agency, departmental, or program mandate and bureaucracy, which impedes policy coherence and effective action. To rectify this, in early 2011, the UN secretary-general established a task force on TOC and drug trafficking with the aim of creating a system-wide strategy to fight international crime and enhance coordination. The taskforce clearly demonstrates that the UN is aware of the lack of internal cohesion and is increasingly viewing transnational crime as a political and strategic issue.
National policing and border control is also critical to stopping organized crime. In an era of globalization, Interpol is the world's intermediary for police cooperation. Founded in 1923, Interpol has 190 members, each with a national central bureau staffed by local officials. The agency's priority is to secure communication among law enforcement agencies, to manage international criminal databases, to provide operational support during crises, and to train police forces. However, with a budget of roughly $75 million in 2010, the agency is grossly underfunded. It also holds no authority to conduct investigations independently or to arrest suspects, and is therefore only as strong as the host country's police force.
The World Bank and the International Monetary Fund (IMF) are also engaged in the fight against TOC, namely, in conducting assessments of anti–money laundering provisions in countries. To date, the institutions have conducted some seventy assessments, but a recent report [PDF] suggests that they are largely uneven because they did not focus on areas that present greater risk. The World Bank also carries out anticorruption efforts, and in 2011 pledged $1.5 billion to fight TOC over the next few years, recognizing its corrosive impact on development.
Regional cooperation, particularly at borders, is generally weak despite initiatives, such as Europol's annual organized crime threat assessment, the European Union's (EU) prioritization of anti-TOC efforts in Bulgaria and Romania, and comparable efforts under the Stability Pact for Southeastern Europe. The Financial Action Task Force (FATF), an initiative of the Organization for Economic Cooperation and Development (OECD), has adopted a successful policy of "naming and shaming" noncooperating jurisdictions, and has enlisted countries to craft legislative frameworks to combat money laundering. Eight regional initiatives modeled on FATF have since been established to replicate its work, and have been widely hailed [PDF] as successful. However, more broadly, regional efforts have been weak. For instance, the initiative of the Economic Community of West African States to adopt a moratorium on the import and export of light weapons has had little impact.
Various major donor countries fund projects in partner nations to enhance security. The United States, for instance, supports four regional International Law Enforcement Academies designed to provide countries with technical support. In general, however, bilateral donor initiatives on TOC are modest. While programs like Plan Colombia and the Mérida Initiative have significant funds, the aid is overwhelmingly military, and funding for more comprehensive solutions has consistently decreased [PDF] year after year.
Imposing economic sanctions against criminal groups is a new strategy being tested by the United States. In July 2011, the Obama administration issued sanctions against four TOC groups in Mexico, Japan, Italy, and eastern Europe. The order froze their assets and criminalized aid to the groups. Such provisions have often been used, with measured success, to target other nonstate actors—namely, terrorists.
Overall, the TOC regime faces three sweeping challenges. First, political will is too often lacking at national, regional, and global levels. More than a few states are crippled by corruption, and when political leaders or elites benefit from organized crime, implementation of international frameworks is not feasible. Second, the current regime suffers from critical normative gaps, and sensible strategies where norms exist. The international community has yet to agree to an operational definition of TOC. As a result, monitoring and enforcement of counter-TOC agreements is weak, many countries have not signed onto important treaties, and national legislation is unevenly implemented. Finally, the dearth of data—and impracticality of properly measuring international criminal activity—hinders every attempt to devise adequate strategies to combat TOC.
Building Norms: Progressing but still stovepiped and vaguely defined
To construct effective strategies to fight TOC, the international community has attempted to build normative consensus. The UNTOC provided the definition of a TOC group, but it will take years before the convention is fully integrated into national judicial systems. Although some international norms are already strong—such as those for drug trafficking and money laundering—the world is struggling to design instruments that respond effectively to the groups that engage in many forms of crime. At the same time, current norms do not consider the range of political motivations and alliances between powerful political or business leaders and criminals.
Still, one important normative shift is already occurring. Traditionally, global and national standards have aimed primarily to detect and diminish the supply, transport, and sale of illicit commodities. But nations and international institutions are increasingly recognizing the need for a more comprehensive strategy. They are slowly integrating public health, development, and community-based practices to decrease not only the supply but also the demand for illicit commodities. In parallel, development institutions, such as the World Bank, are recognizing [PDF] that anti-TOC funding and programs are imperative for economic growth, democracy, and governance.
Globalization has facilitated an explosive growth in TOC since the early 1990s. The international community has sought to respond with stronger and more comprehensive measures. In 1994, at the World Ministerial Conference on Organized Transnational Crime in Naples, Italy, countries took an important step and called for a multi-sector treaty that addressed the whole spectrum of TOC. Previously, international treaties had targeted one type of illicit activity—with drug trafficking treaties being the most potent—but failed to address the diverse activities of TOC groups. The result was UNTOC, also known as the Palermo Convention, which was finalized in 2000 and came into force in 2003. Today, UNTOC stands as the core treaty addressing transnational crime as an overarching problem—and the only comprehensive tool the world has.
However, the world still lacks an operational definition for transnational crime, and norms for law enforcement and judicial cooperation remain weak, vague, or nonexistent. UNTOC defined groups that engage in TOC but "excluded single, ad hoc operations," which are responsible for much of TOC today. Furthermore, to effectively track and prosecute international crime, nations must agree to robust policing cooperation and to assist developing countries. Prosecutions for international crime may require evidence from authorities of multiple nations. Pursuing suspects requires intelligence sharing, extradition, and cross-border police cooperation. Identifying perpetrators also requires capable domestic institutions. However, transnational law enforcement cooperation can be exceedingly controversial. Joint investigations are often undermined when foreign investigations must rely on support from corrupt countries that do not wish to fight crime or whose systems are crippled by corruption. Nations jealously guard judicial and policing authorities as sovereign authorities. Accordingly, these topics have barely been mentioned in international conventions. Countries are also generally reluctant to release domestic intelligence to other nations or to a collective intergovernmental or supranational authority.
Finally, many experts have long called for the world to reorient the fight against crime away from law enforcement and instead address transnational crime as a market activity. As long as incentives for participating in international crime remain so high, they argue, success against one group, or in one area, will merely create a scramble by other groups to usurp the former group's profit. For example, norms to combat narcotrafficking are very strong, but some argue that they are misguided, because "successes" in one area may only displace the problem elsewhere. The high-profile, well-resourced, and internationally exported U.S.-led war on drugs has long prioritized law enforcement over market-based policies. This approach is so entrenched that retooling international norms to incorporate market-based strategies is an uphill battle. The United States has recently been more candid [PDF] about demand in the developed world fueling international crime, as well as about the need for prevention and treatment, but international action remains strongly focused on supply-side measures. Some critics believe that the global regime needs to shift entirely toward a public health model designed to reduce demand rather than stamp out supply.
When it comes to other criminal sectors, anti–money laundering (AML) norms are among the strongest. In the 1980s, the developed world began to forge international AML instruments, which resulted in the FATF's forty recommendations for domestic AML regimes. The FATF also identified certain "noncooperating jurisdictions" that could be subject to international naming and shaming. September 11 inspired additional recommendations to combat terrorist financing, and FATF norms have since become the global yardstick for counter–terrorist financing efforts. The need to "follow the money" to root out nonstate actors has become firmly embedded in international normative frameworks.
Global norms against human trafficking and illicit weapons smuggling have also developed significantly in the past decade as nations accede to the relevant protocols to UNTOC: the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children; the Protocol Against the Smuggling of Migrants by Land, Sea, and Air, and the Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition. Much remains to be done, however. Labor trafficking and the dangers of migrant smuggling receive far too little attention in comparison with sexual trafficking. In terms of weapons smuggling, recognition of its contribution to armed conflict, particularly in Africa and Latin America, is growing, but the world still lacks a strong, enforceable treaty that governs illicit trafficking in small arms and light weapons.
Given the weakness of global normative frameworks, certain regions have endeavored to address transnational crime on their own. This approach has some merit, inasmuch as regions often face drastically different realities, and more focused local multilateral institutions may be better suited to combat the threat. On the other hand, some worry that separate regional approaches might undermine common global standards—or help push criminal activities to more vulnerable regions.
To date, regional norms remain weakly developed except in Europe, where the integration of the EU has allowed more law enforcement and judicial cooperation. Still, even EU states have been unable to agree to an operational definition of TOC. As organized crime surged in West Africa over the past decade, the Economic Community of West African States did attempt to build regional mechanisms to stem the tide, but fighting organized crime remains a fairly low priority across most of the continent. The Organization of American States' Hemispheric Action Plan, meanwhile, has endorsed UNTOC and stressed the need for states to implement it—but it has not dented the growth of transnational crime in Latin America. In Asia, the Pacific Islands Forum has made important strides through a capacity-building framework with Australia, and the Association of Southeast Asian Nations has agreed to some important transnational crime norms, but the region remains plagued by TOC.
Overall, as criminal organizations grow stronger, the world lags in its efforts to devise adequate mechanisms to fight them. In part this reflects a structural problem—the ease with which illicit networks can hopscotch across sovereign borders, leaving national governments behind. In sum, "even as crime is transnationalized, crime control remains largely corralled behind national borders."
Corruption: Normative and institutional progress, spotty implementation
Corruption fosters the ideal environment for TOC. Corruption supports a wide range of illicit markets, from drugs and arms trafficking to environmental crime and counterfeit markets. The same motives that attract TOC to corrupt states also prevent the state from establishing rule of law and a functional judicial system, as corrupt officials benefit from the lack of transparent and accountable systems. Corruption is also notoriously difficult to eradicate in countries where it is deeply embedded in political culture. Many high-level politicians profit from organized crime, hindering anti-TOC efforts. Indeed, in many Eurasian, Latin American, and West African states, criminal syndicates have deeply penetrated executive bodies, legislatures, the police, and courts. Where states consider organized crime an ally in domestic governance, they inevitably will be reluctant to support the development of more robust international governance capacities. Despite some efforts, the international community has been unable to mobilize an effective method to combat corruption.
Over the past decade, anticorruption efforts have picked up steam, but progress is halting. After two protracted years of negotiations, the United Nations Convention against Corruption (UNCAC) entered into force in December 2005 and established an overarching international framework. As the first legally binding international anticorruption agreement, UNCAC provides a comprehensive set of measures to be implemented by state parties to prevent, combat, and prosecute corruption. Significantly, UNCAC does not define corruption, but does require countries to criminalize a wide range of corrupt acts, including bribery, kickbacks, money laundering, embezzlement, and obstructing justice. In an important breakthrough after long-standing disagreement among states, asset recovery is also listed as a fundamental provision of the convention. Emphasizing the need for international cooperation, UNCAC requires state parties to return ill-gotten gains to the country of origin. It also calls for enhanced transparency and accountability, based on the argument that more knowledge raises the costs of illicit activity and therefore reduces corruption.
The convention initially received broad support and has nearly global coverage with 159 state parties. However, countries known for endemic corruption—such as Afghanistan, Honduras, and Russia—are parties to the convention, undermining its legitimacy and exposing its weaknesses. Although UNCAC successfully builds anticorruption norms, it does not provide for monitoring, implementation, or enforcement. The first session of the Conference of State Parties to UNCAC, held in 2006, attempted to address this criticism by committing to establish a mechanism to monitor corruption. But subsequent sessions have failed to reach an agreement.
Regional organizations have also made significant normative progress by developing comprehensive anticorruption instruments, although implementation and effectiveness have been patchy. The first regional convention to address corruption was the Inter-American Convention against Corruption, which was adopted by state parties to the Organization of American States (OAS) and entered into force in March 1997. The Council of Europe passed the Criminal Law Convention on Corruption in January 2002, with an additional protocol authorizing the creation of a monitoring mechanism, the Group of States Against Corruption. In July 2003, the African Union (AU) Convention on Preventing and Combating Corruption was enacted in an attempt to address widespread corruption on the African continent.
One of the most successful—albeit controversial—regional initiatives is the International Commission Against Impunity in Guatemala (CICIG). At the request of the Guatemalan government, the UN created CICIG in 2007 to reinforce the rule of law by strengthening institutions, investigating corruption, and training officials. By 2010, CICIG helped to oust thousands of corrupt policemen, ten prosecutors, three supreme court justices, and an attorney general. The commission has also supported the trials and convictions [PDF] of more than 130 criminals, including a former president and foreign minister. Some critics have questioned CICIG's sustainability, arguing that it is not fulfilling its mandate to transfer technical capacities to Guatemalan counterparts and interfering in cases beyond its remit. At the same time, CICIG must request to join criminal cases as a complementary prosecutor and the Guatemalan justice system can deny it jurisdiction to participate—decreasing the commission's independence and potential impact. Nevertheless, the commission is an important model for anticorruption efforts.
Together, UNCAC and regional conventions provide a solid foundation of international norms, standards, and measures to combat corruption. However, they fall short of the integration and coordination required of a global anticorruption strategy and have not significantly affected change on the ground in most countries.
To fill the void, other international and civil society organizations that focus primarily on economic and sustainable development have taken up the mantle of anticorruption work. The World Bank, Interpol, the Group of Twenty (G20), the IMF, and the OECD have attempted to raise awareness of the issue by addressing the consequences of corruption.
The World Bank has spearheaded efforts to combat corruption through a partnership with the UNODC, called the Stolen Asset Recovery Initiative (StAR). Established in 2007, StAR provides assistance and training to developing countries to prevent money laundering and recover stolen assets. The initiative has worked with over five hundred officials in forty countries around the world and is expanding its country partnerships, although no assets have been recovered thus far. StAR is further hindered by the fact that it cannot legally investigate or prosecute cases of stolen assets. As part of StAR, the World Bank also works closely with Interpol on asset recovery initiatives that coordinate with national law enforcement to seize and return stolen funds. In addition, the G20 formed the Anti-Corruption Working Group in June 2010 to develop and recommend anticorruption business practices.
Nongovernmental organizations and academic institutions play a critical role in pioneering innovative solutions to increase transparency in corrupt governments. The Program on Liberation Technology, for example, at Stanford University is researching the use of mobile phones to text individuals facts on government spending (per public record), so as to empower local communities with the knowledge of what they should receive and what they do receive.
These efforts are complicated by the fact that there is no existing method of measuring corruption. This is partly because it is largely conducted in secret, and partly because corruption can sometimes appear legitimate. Transparency International, a civil society organization, publishes the annual Corruption Perceptions Index, which ranks countries according to perceptions of public-sector corruption. Although it is not a perfect science, it does provide a comprehensive assessment of individual countries and regions. In 2011, Somalia, North Korea, Myanmar, and Afghanistan led the list as the most corrupt countries in the world. A recent survey [PDF] conducted by theUNODC estimated that Afghan officials paid $2.5 billion in bribes and related payments in 2009.
When undertaken, national anticorruption strategies to end impunity and promote capacity building have also produced some success. In 2008, the Mexican government launched Operación Limpieza (Operation Clean), with the goal of purging the law enforcement of corruption. Thus far, the interim commissioner of the federal police, head of the counternarcotics division, and thirty other officials have been arrested.
Following the Money: Increasingly legislated, uneven implementation
Money laundering is the life blood of TOC. Since the late 1980s, the world has been straining to manage illicit flows of cash among the massive sums that flow across borders every day. A meta-analysis [PDF] conducted by the UNODC in 2011 concluded that globally, criminal proceeds amount to around 3.6 percent (or between 2.3 and 5.5 percent) of the world's gross domestic products combined—roughly $2.1 trillion annually—and costs between 2 and 5 percent of global gross domestic product ever year according to the UN. Nations have prioritized "following the money" to identify criminals and deter citizens from turning to crime, but the world is floundering [PDF] in its efforts. "Ultimately, anti–money laundering tools, which were designed to combat organized crime, have been ineffective," according to a ten-year review of the Palermo Convention [PDF]. The UNODC reports that less than 1 percent [PDF] of illicit financial flows around the world are seized and frozen. This saps nations of needed resources and allows criminals to profit illegally and remain at large.
The FATF, founded in 1989 by the OECD, is celebrated as one of the greatest anti–money laundering (AML) successes. FATF's forty recommended measures, published in 1990, and nine counterterrorist financing measures, lay out steps national governments can take to improve AML capabilities. In 2012, FATF also revised its recommendations based on feedback from the financial sector, businesses, nongovernmental organizations, and individuals, and combined the terrorism and money laundering recommendations. All member countries both carry out a self assessment and submit to peer review of their implementation of recommendations. In 2000 FATF also published an associated list of noncooperative countries and territories [PDF] (NCCT). Fearful of losing investment or international standing, all twenty-three of the countries first included on the FATF list subsequently enacted AML legislative frameworks and many more passed similar laws in order to avoid landing on the list. Twelve binding UNSC resolutions between 2001 and 2010 also mandated UN member states to improve financial monitoring systems, and the FATF recommendations became the yardstick for compliance. Experts therefore credit the FATF NCCT list with coercing "between a quarter and a third of the world's sovereign states… to adopt the standard AML policy" by 2006. However, despite putting laws on the books, the majority of these countries are incapable or unwilling to strictly enforce them.
To date, eight regional groups modeled on FATF have emerged across the world, that is, FATF-style regional bodies (FSRBs). With a deeper understanding of the local context, the FSRBs evaluate state systems in the region, and recommend ways to improve AML regimes. FSRBs also provide training for law enforcement officials and help countries develop financial intelligence units (FIUs) in coordination with UNODC, which track suspicious financial activity. FIUs are essential because they can participate in an international information sharing initiative that builds a network of FIUs, known as the Egmont Group. As internationally monitored initiatives, FSRBs add meat to various other regional efforts, ranging from the OAS AML standards to an action group against money laundering of the Economic Community of West African States.
More broadly, countries have incrementally forged important AML norms. Originally, the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances first criminalized laundering the profits of drug trafficking. This was later expanded to apply to all money laundering in 1998 by a UN General Assembly political declaration. Then, the UNTOC (or Palermo Convention) and the UNCAC, which entered into force in 2003 and 2005 respectively, further entrenched necessary AML standards. Interpol supports these efforts by processing investigative requests between nations, but because Interpol lacks its own jurisdiction, it primarily urges nations to implement these norms rather than enforces them itself.
The Palermo Convention clarifies several AML steps for signatories to take. State parties must criminalize money laundering and any conscious facilitation of it, as well as "institute a comprehensive domestic regulatory and supervisory regime… in order to deter and detect all forms of money laundering." These include stipulations regarding customer identification, record keeping and the reporting of suspicious transactions, as well as shoring up law enforcement, regulatory, and administrative regimes with the necessary resources to cooperate with national and international AML investigations. However, these obligations have been unevenly implemented by states.
Equally important, UNCAC mandates that states "take such civil and administrative measures" to prevent government corruption from the highest levels to lower-level border officials, policeman, and bankers. Since their complicity is necessary for transnational crimes ranging from weapons smuggling to money laundering, these measures are crucial. But implementation has lagged across many member states.
To help states meet these standards, the UN Global Program Against Money Laundering, Proceeds of Crime and the Financing of Terrorism (GPML) provides technical assistance in various forms such as legislative advice or training justice officials to investigate and prosecute financial crime. GPML also supports countries that wish to update [PDF] their domestic AML frameworks, and its mentor program "is one of the most successful known activities in AML/CTF technical and training assistance." In a 2011 review by an independent panel of experts, GPML was deemed "successful" and "highly relevant."
In 2000, the IMF also responded to the growing challenge of money laundering, emphasizing that it not only facilitates crime, but also threatens members' economies by undermining the stability of financial institutions, increasing the volatility of capital flows, and having a "dampening effect on foreign direct investment." In response, the IMF now conducts assessments, provides technical assistance, and drafts policy recommendations for the global AML effort. As an international body focused on global finance with universal membership, the IMF was able to expand the scope of AML efforts beyond the global North. Still, the IMF is not ideally suited to root out criminal profits because AML efforts require law enforcement and judicial prosecution.
Despite these initiatives, corruption, corporate and bank secrecy, and informal money transfer systems like hawala continue to complicate AML efforts. Financial havens such as Nauru or the Cayman Islands provide opportunities for illicit monetary transfers no matter how robust domestic or regional frameworks are. Many banks also provide offshore operations for clients seeking broader secrecy. Swiss banks, for example, have transferred many operations to Liechtenstein, the Cayman Islands, or Isle of Jersey. In some cases, banks collude with criminal organizations—even in developed nations as evidenced by one U.S. bank's cooperation with Mexican cartels.
Therefore, strong regulatory policies are crucial and need to be closely monitored. A growing trend, for instance, requires private banks or firms to take responsibility for AML. In response, banks increasingly publish their own AML policies [PDF], pledge to enact "know your customer" rules, cooperate with law enforcement, and even recruit former financial investigator police officers. In one instance, for example, U.S. banks detected certain money laundering tactics like mirror accounts of drug cartels. Still, numerous studies have concluded that banks generally believe that AML regulations are not cost effective and impose an enormous burden on them. The 2008 financial crisis inspired calls for broader regulations and the U.S. government has recently begun to revisit AML regulation under the Dodd-Frank Wall Street Reform and Consumer Protection Act, but implementation of the countless stipulations is far off, if not impossible.
Another new strategy with great potential is the use of national sanctions to combat transnational crime. Between July 2011 and February 2012, the U.S. Treasury imposed sanctions on five criminal syndicates in Mexico, Italy, eastern Europe, and Japan. The department stated that the effort aimed to prevent the groups from using billions in annual profits. Experts noted that sanctions have been effective against nonstate actors like al-Qaeda, and thus might aid in combating criminal groups. Though promising, the move's impact has yet to be demonstrated, and it does not portend to replace multilateral AML cooperation.
Narcotrafficking: Stuck in criminalization paradigm
Narcotrafficking is arguably the most legislated and enforced sector of transnational crime, but the effectiveness of the regime is increasingly questioned. Pressing international issues often suffer from underfunding and lack of high-profile attention, but narcotrafficking is an exception. Heavily backed by U.S. resources and enormous U.S. political attention, countries have sought to enforce an array of treaties that regulate production, distribution, and transport of nonmedical drugs. But trafficking groups easily change location, adapt network-style structures, and diversify their activities to evade law enforcement efforts. As a result, experts stress the need to understand narcotrafficking as a market. In 2011, the UN Global Commission on Drug Policy recommended a paradigm shift to public health rather than criminalization, noting that despite $2.5 trillion spent since the 1970s, the U.S.-led global war on drugs has failed, primarily because of its focus on law enforcement. Slowly, some countries and international institutions are attempting to incorporate public health and economic programs into the fight against narcotrafficking, but much remains to be done.
The Commission on Narcotic Drugs is the main international body that oversees the implementation of global anti-narcotrafficking efforts by deciding which drugs belong to which schedules (or risk levels) of the drug control treaties and advising other bodies. The UNODC is the primary agency to help countries implement UN treaties and initiatives on the ground. Highly respected, UNODC operates around the world, conducting evaluations of the illegal drug market, helping states implement awareness programs, and providing treatment support. In addition, the UNODC Justice Section [PDF] helps states establish or improve judicial frameworks and works to empower law enforcement agencies to investigate and prosecute drug traffickers. For example, one joint program [PDF] with the World Customs Organization that operates in eleven countries helps those nations regulate the contents of shipping containers in which drugs often cross borders. UNODC also conducts a wide array of other operations related to international crime that are critical to anti-narcotrafficking efforts, including anticorruption and alternative livelihood development, among others. Its resources, however, are limited.
The core narcotrafficking accords that still serve as the basis for the international anti-narcotrafficking regime emerged between 1960 and 1990. In 1961, the Single Convention on Narcotic Drugs (Single Convention) synthesized the mandates of nine drug-related treaties dating back to the 1912 International Opium Convention. The Single Convention also established a list of prohibited substances and limits on the possession, distribution, manufacture and production of prohibited drugs—as well as set up the International Narcotics Control Board, a precursor to UNODC. A decade later, the 1971 Convention on Psychotropic Substances incorporated manufactured drugs such as methamphetamines and lysergic acid diethylamide (LSD)—though it did not criminalize them as harshly as organic illegal drugs. In 1988, the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances built on the previous two treaties, obliging states to criminalize possession, purchase, and cultivation of illegal drugs. It also set down rules for extradition cooperation, created provisions of mutual legal assistance to investigate and prosecute suspects, and criminalized money laundering of narcotrafficking profits. Still in force, these three conventions represent the backbone of the international war on drugs.
Notably, during negotiations for the 1961 Single Convention, nations coalesced into various blocs in a manner that affected the drug regime for the next decades. Powerful nations that were primary importers of illegal organic drugs, such as the United States and West Germany, successfully lobbied for a strict control regime on the supply side, rather than requiring states with high addiction rates to attempt to mitigate demand through health-based policies at home. As a result, today's anti-narcotrafficking instruments continue to identify the illegal drug trade primarily as a criminal activity, and therefore charge nations to control the problem through law enforcement.
More recently, the 2000 UNTOC did incorporate more comprehensive strategies to fight drug-related offenses. Article 30 of that treaty requires "other measures" to fight crime "through economic development" and Article 31, stipulates that states "shall endeavor to develop" appropriate preventive strategies. Although an important normative development, the directives remain vague and underemphasized.
Regional organizations have joined the fight against narcotrafficking, with mixed results. The OAS has launched some innovative programs that aim to decrease demand for illegal drugs, but the region still faces an enormous challenge. Latin American leaders are using the forum to pressure the world—and especially the United States—to reevaluate existing prohibition regimes, but any progress will take years. The EU is endowed with broader powers than other regional initiatives, and therefore has been able to impose more consistent legislation across the union and support capacity-building initiatives in eastern Europe, but European drug use and rates of human trafficking continue to climb. The Economic Community of West African States has taken initial steps to fight drug trafficking, but governance gaps in the region continue to leave it vulnerable. The Association of Southeast Asian Nations (ASEAN) has conferred high-level political attention on narcotrafficking, committing to a "Drug-Free ASEAN", but the realities of governance gaps and economic development challenges have impeded [PDF] these efforts.
A number of bilateral capacity-building endeavors have also had a major impact on narcotrafficking norms around the world. Plan Colombia, (now called the Andean Counterdrug Initiative) for example, is an $8.5 billion program initiated in 1999 in which the United States provides expertise and financial resources to the Colombian military and administrative and judicial sectors to help Colombia fight narcotraffickers. Though the policy has managed to curb the Colombian drug problem to some extent (though not without controversy), in 2010, the UNODC reported that the lion's share of drug cultivation had merely been displaced to neighboring Peru. The United States has also devoted $1.5 billion since 2008 to the Mérida Initiative to help Mexico suppress cartels there, but as Mexico tames the drug trade in one area it reappears elsewhere and violence is increasing. Mexico's drug trade has also contributed to surging violence in Central America. Experts stress that these outcomes demonstrate the need to prioritize comprehensive strategies rather than rely too heavily on law enforcement.
New methods are slowly being pioneered to fight demand at the national level, but they remain the exception rather than the rule. A domestic program within the United States has pioneered drug courts, which supervise drug addicts during treatment rather than imprisoning them. In the first twenty years, drug courts were reported to be 75 percent more successful at preventing recidivism than incarceration and to reduce crime by as much as 35 percent. Similarly, Brazil has devised a strategy of placing permanent "pacifying police units" in the violent favelas, rather than attack narcotrafficking gangs with military police—an approach that has led to a "drastic change," in the words of a Brazilian police captain. Furthermore, some U.S. districts are experimenting with drug market intervention [PDF]—where known drug dealers are invited to meet with community leaders who convince them of the harm they are inflicting on friends and family, rather than arrested and imprisoned—with remarkable success. Although such initiatives are small, they provide a promising model.
The War on Illicit Weapons: Rising awareness, limited scope
Smuggling weapons or their integral components fuels conflict among and within states as well as empowers pernicious nonstate actors such as gangs, pirates, and terrorists. Weapons smuggling can include the illicit transfer or diversion of materials, technology, and components related to weapons of mass destruction (WMD) as well as the trafficking and theft of conventional weapons. Awareness has spread about the overall threat from this form of transnational crime, but institutions to counteract the illicit transfer of weapons remain limited in scope.
The threat from illicit WMD transfers is primarily that a terrorist group would create a radiological dirty bomb or assemble a nuclear device. Although the Nuclear Nonproliferation Treaty, which was agreed to in 1968, attempted to prevent the unchecked proliferation of nuclear weapons, many find the treaty and its enforcement body, the International Atomic Energy Agency, ill equipped to counter threats posed by so-called rogue states and dangerous nonstate actors. The possibility of al-Qaeda or another group independently building a nuclear bomb is relatively small, but the consequences would be devastating. As evidenced by the discovery of the Abdul Qadeer Khan network in Pakistan, modern smuggling can involve intricate transnational channels supporting the transfer of sensitive technology. Stockpiles of nuclear warheads and material are also at risk for theft or illicit transfers, especially within the territory of the former Soviet Union.
In 2004, the passage of UN Security Council Resolution 1540 (UNSCR) marked a watershed moment for efforts to stem the proliferation of weapons of mass destruction. Binding on all UN member states, UNSCR 1540 called on countries to implement domestic legislation to prevent proliferation, as well as established the 1540 Committee to monitor implementation of the resolution. Regardless, as of 2011, more than fifty [PDF] UN members had not formally reported their efforts to prevent nuclear proliferation to the 1540 Committee. Other challenges related to the implementation of UNSCR 1540 include difficulties in coordinating global nonproliferation capacity-building efforts and addressing the concerns of some developing states that claim to lack the necessary technical expertise and resources to implement the resolution's provisions. In addition, many developing countries simply do not prioritize the threat of nuclear weapons as highly as other issues.
The relatively recent emergence of multilateral arrangements like the Proliferation Security Initiative, Global Initiative to Combat Nuclear Terrorism, and the UN Convention for the Suppression of Acts of Nuclear Terrorism have been critical tools for norm-building and sustaining global attention on the threat posed by the proliferation of weapons of mass destruction. Nevertheless, potential candidates for illicit transfers—whether state or nonstate—can simply opt not to cooperate or participate in these accords. Similarly, although the 2010 Nuclear Security Summit in Washington, attended by nearly fifty heads of state or government, pledged to secure vulnerable fissile nuclear material by 2014, the pledge was not legally binding, nor did it cover threats posed by the proliferation of specific nuclear weapons related components. A binding Fissile Material Cutoff Treaty also has yet to be drafted.
Conventional weapons, whether small arms and light weapons (SALW) or more advanced weapons systems, are substantially more likely to be smuggled or involved in illicit transfers. The UN's Register for Conventional Arms was created for states to report all exports and imports related to seven categories of armaments considered to be the most dangerous, including small arms. However, compliance by countries is voluntary and reporting has declined in recent years.
The illegal trafficking of SALW, an estimated $1 billion annual industry, has received significant global attention. The UN's Program of Action to Prevent, Combat, and Eradicate the Illicit Trade in SALW in all its Aspects (PoA) is its most comprehensive effort in this area. Adopted by all UN member states in 2001, the PoA requires countries to develop national bodies that review legislation and cooperate internationally to stem illicit trade of SALW. Despite setting important normative foundations on licensing, tracing, and international cooperation, the PoA is a voluntary agreement and does not address [PDF] important issues including ammunitions, state-to-state transfer, and transfer to nonstate actors. A review conference scheduled for 2012 will examine the implementation of its recommendations by member states, but analysts have already reported significant gaps in implementation for a variety of reasons. To begin with, some states do not clearly understand their obligations [PDF], even when the PoA is unambiguous, and for many nations SALW trafficking is not a high priority. In addition, the PoA lacks [PDF] clear benchmarks and a mechanism for sharing best practices to support implementation.
The only legally binding treaty on SALW is the Firearms Protocol, a complementary instrument to the UNTOC, that requires states to bolster control measures against illicit firearms and their ammunition. However, this agreement also does not regulate state-to-state transfers and has had only some success in helping countries keep a tab on illicit weapons, despite licensing, marking, and tracing provisions. For example, in 2007, in violation of international sanctions, a Ukrainian ship transported thirty-three T-72 tanks, rocket-propelled grenades, and anti-aircraft guns to South Sudan via Kenya.
The International Tracing Instrument (ITI), an offshoot of the PoA, was created to fill this vacuum. The ITI aims to identify and trace weapons' paths from source to destination. However, an April 2011 report on small arms by the UN secretary-general notes that, in many cases, ground-level officials do not understand tracking related markings on weapons, or do not have the records needed to link weapons with arms manufacturers. Often, serial numbers are simply ground off weapons.
The United Nations (UN) has resumed talks to negotiate a potentially comprehensive and legally binding arms trade treaty. Prospects for a breakthrough are dim, however. Contentious topics will require tough compromises from states such as China, France, Russia, the United Kingdom, and the United States—top arms exporters. U.S. constitutional protections to possess personal firearms significantly complicate negotiations. The agenda includes establishing a monitoring provision for SALW ammunition exports, determining responsibility for illegal state-to-state SALW sales, and enforcing such an accord.
Still, the number of civil society groups dedicated to promoting stronger and more inclusive cross-border regulations of small arms and light weapons has exploded. Established in 1998, the International Action Network on Small Arms, for instance, combines the work of numerous international groups seeking to stop all trafficking of SALW. Persistent lobbying from international nongovernmental organizations may have also played a central role accelerating UN and other regional negotiations to prevent the smuggling of conventional weapons.
Regionally, robust accords to prevent the trafficking of arms are the exception rather than the rule. One of the most far reaching is the binding Economic Community of Western African States Convention on Small Arms and Light Weapons, which entered into force in 2009. Some posit that the convention, which was drafted with support from leading SALW civil society groups and banned arms transfers to nonstate actors, could be a model for other regions and even work toward a global arms trade treaty. The moratorium, however, has been "routinely flouted" [PDF] and has had little impact.
Illicit markets: Lacks comprehensive framework, international agreement
Other illicit markets include counterfeit products, counterfeit drugs, resource trafficking and environmental crime, and organ trafficking. These operate extralegally and thrive at the expense of legal trade and economic systems.
Global efforts to curtail these markets tend to be sector-specific responses, despite the fact that many criminal groups have diversified their activities into multiple markets. Collectively, global conventions, multilateral initiatives, and international institutions provide normative standards of protection, target the movement of illegal goods, and criminalize illicit activities—with varying degrees of effectiveness. Where norms exist, enforcement tends to be uneven. Nongovernmental organizations and private-sector entities have called for a global monitoring mechanism to track violations and seizures to expand knowledge of trends and developments.
Statistics point to oceans as a major channel for illicit markets, given that nearly 90 percent [PDF] of global manufactured goods are transported by container. Several International Maritime Organization (IMO) conventions address the safety of container shipping, including the International Convention on Safe Containers, which establishes uniform regulations for shipping containers. The conventions, however, do not address comprehensive security solutions, and illegal goods are secretly stashed in containers en route to their destinations. In 1992, the IMO enacted the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, which created a legal framework to interdict, detain, and prosecute terrorists, pirates, and other criminals.
The U.S. government attempts to address this vulnerability in part through the Container Security Initiative (CSI), which aims to prescreen the majority of containers destined for the United States by isolating those that contain illegal goods before transit. The initiative, which operates in fifty-eight foreign ports, covers more than 80 percent of container cargo en route to the United States. Several international partners and organizations, including the EU, Group of Eight (G8), and WCO, have expressed interest in modeling security measures for containerized cargo based on the CSI model, though such expansion is years away. Despite these efforts, experts estimate that only 2 percent of containers destined for U.S. ports are actually inspected.
Trade in Counterfeit Products
The World Trade Organization (WTO), the main international institution dealing with trade issues, has led international efforts to combat illicit markets, specifically trade in counterfeit goods. The landmark Agreement of Trade-Related Aspects of Intellectual Property Rights (TRIPS), passed in 1995, applies to all 153 WTO members and establishes minimum standards for intellectual property rights, including trademarks, copyrights, and patents, to be enforced by member states. Covering a broad range of sectors and goods—such as electronics, knock-off designer apparel, and art—TRIPS is the most comprehensive multilateral agreement addressing counterfeit goods to date. The UN's World Intellectual Property Organization helps the WTO implement TRIPS by managing an international registry of patents, providing translations and notifications of national regulations, and supporting international technical cooperation. Specifically, the Madrid Agreement Concerning the International Registration of Marks along with its protocol allows countries to register trademarks in multiple countries through a single application that broadens coverage, but also lacks an enforcement mechanism. At the same time, TRIPS relies on UN member states to enforce intellectual property laws, which has led to serious gaps due to lack of political will or capability.
Recent efforts to strengthen enforcement mechanisms have met stiff resistance. Signed by thirty-one state parties—including Australia, Canada, Japan, the United States, and the EU—the 2011 Anti-Counterfeiting Trade Agreement (ACTA) attempts to establish an international legal framework to address violations of intellectual property rights. However, ACTA has been criticized for violating freedom of expression and privacy, as well as excluding civil society organizations and developing countries from negotiations. In response to a petition signed by more than two million Europeans, the European Commission referred ACTA to the European Court of Justice to determine whether the agreement violates individual rights.
Private-sector groups affected by illicit markets have also formed industry-specific trade associations, which have pushed for anti-counterfeiting legislation. Among the most active and influential of these organizations are the Motion Picture Association of America, Business Software Alliance, Recording Industry Association of America, Pharmaceutical Research and Manufacturers of America, and the Council of Fashion Designers of America. They lobby for anti-counterfeiting legislation and enforcement, publish data and reports, run public advocacy and education campaigns, and help their members investigate and prosecute violations. However, rights groups have criticized such organizations for wielding undue influence and pushing legislation that disproportionately benefits businesses at the expense of consumers.
TRIPS coverage also extends to pharmaceutical patents. Although TRIPS requires all countries to adopt minimum standards, it does allow for some flexibility for developing countries through compulsory licensing agreements, a provision recently applied for the first time in India to produce a generic cancer drug. In 2001, the WTO Ministerial Conference adopted the Doha Declaration, affirming that TRIPS "does not and should not prevent members from taking measures to protect public health" by promoting access to affordable drugs.
Despite these advances, the definition of counterfeit medicine remains unclear. Disagreement is widespread over the working definition of counterfeit drugs provided by the World Health Organization (WHO). Developing countries maintain that generic versions of brand-name drugs should not be considered counterfeit as they are essential to affordable health care. Many nations do not yet have legislation targeting counterfeit drugs, although there are signs of progress. In 2011, China and Nigeria agreed to a new bilateral initiative allowing regulators to jointly combat counterfeit drugs.
Multilateral and regional organizations have taken steps to enforce anti–counterfeit medicine agreements. In 2006, the WHO launched the International Medical Products Anti-Counterfeiting Taskforce, the goal of which is to develop international and regional networks to facilitate information sharing on the counterfeit drug market, although it has yet to make a global impact due to resistance from several important developing countries. Interpol has also implemented several regional initiatives to combat counterfeit drugs and arrest traffickers: Operation Storm in southeast Asia, Operation Mamba in eastern Africa, and Operation Cobra in western Africa. Between January 2010 and October 2011, Interpol and local partners seized millions of pills and made hundreds of arrests, underscoring the need for continued multilateral intervention. Finally, in December 2010, the Council of Europe adopted the Convention on the Counterfeiting of Medical Products and Similar Crimes Involving Threats to Public Health, which criminalized the manufacturing and trade of counterfeit drugs. Experts have criticized the convention, however, for its vague definition of generic medicine—and have instead advocated for a legally binding treaty led by the WHO. Without an international treaty criminalizing counterfeit drugs, progress will be limited, because each region or country continues to operate on various definitions of what constitutes counterfeit medicine. The WHO executive board adopted a voluntary resolution on counterfeit medicine in February 2012, but a comprehensive and adequate treaty is still far off.
To fight environmental crime, the principal international treaty is the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). CITES is the strongest existing measure to protect the environment from exploitation; it proscribes trade in more than nine hundred animal and plant species in danger of extinction, and restricts trade in more than twenty-nine thousand additional species. Although it has created an important framework for efforts against environmental crime, CITES covers such a wide range of plant and animal species that it is virtually impossible to focus attention and enforce trade restrictions on all of them at once. The UN Environment Program (UNEP), the primary UN body for global environmental issues, supports CITES and related programmatic initiatives, but has a limited budget for these efforts. CITES is also supplemented by more than five hundred global and regional multilateral environmental treaties that deal with specific issue areas, including biodiversity, wildlife, pollution, use of chemicals, and waste disposal. The UNTOC, supported by the UNODC, also serves as a legal framework for combating illicit resource trafficking, although it is primarily limited to crimes committed by organized groups and does not specifically mention the environment.
Laws to regulate illegal resource harvesting have not kept pace with environmental crime. A number of tree species are protected under CITES, but there is no existing comprehensive international agreement that regulates illegal logging. Experts argue [PDF] that CITES could be broadened to more adequately address illegal logging. The Forest Law Enforcement and Governance regional initiative, which convened producer and consumer countries in Asia, Africa, and Europe, attempted to raise awareness of illegal logging, but little progress has been made. Despite two other UN agreements to combat illegal fishing—the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Fish Stocks Agreement) and the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing—serious gaps in enforcement remain (see Global Governance Monitor: Oceans for an in-depth discussion) .
International efforts to combat pollution and toxic waste dumping, on the other hand, have achieved marked success. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, and the Stockholm Convention on Persistent Organic Pollutants together provide an international framework to regulate the movements and dumping of waste, as well as the use of specific chemicals. Maritime pollution is regulated by the International Convention for the Prevention of Pollution from Ships (MARPOL). States are responsible for implementing and enforcing MARPOL to curb the most destructive forms of maritime pollution, including oil spills, particulate matter such as sulfur oxide and nitrous oxide, and greenhouse gas emissions.
In response to the proliferation of environmental crime and limited enforcement, five international groups—CITES, Interpol, UNODC, the World Customs Organization, and the World Bank—formed the International Consortium on Combating Wildlife Crime (ICCW), which became operational in March 2011. ICCW hopes to mount a coordinated global effort against environmental crime by supporting national law enforcement and facilitating information sharing, but it is too early to judge progress.
Organ trafficking has also become a serious problem. And while the Protocol to Prevent, Suppress, and Punish Trafficking in Persons (TIP protocol) identifies "the removal of organs" as a crime, many national governments have legal loopholes and outliers that allow for the activity to continue unchecked. In Iran, for example, kidney sales are legal and regulated; in India, the law outlaws all organ sales except for kidneys; and in China, it is illegal to buy or sell organs, although the government is allowed to harvest the organs of executed prisoners. A joint UN-Council of Europe study in 2009 called for [PDF] a new international treaty that would specifically address organ trafficking, including human trafficking for the removal of organs, which is a subset of a broader and more pervasive issue.
Combating cyber crime: Advancing from anarchy, but constant challenges
Cyber crime, which is estimated to cost the global economy between $114 billion and $1 trillion annually, comprises myriad illegal activities, including cyberattacks on governments or businesses, identity theft, and illegal hacking. As societies increasingly rely on the Internet, the need for robust measures to address cyber crime is clear. However, some experts believe that establishing a comprehensive, binding cyber crime convention may be impossible given fundamental differences in opinions between countries about the Internet. Other challenges include defining cyber crime and assigning responsibility for attacks orchestrated from within a country's territory. Even in existing initiatives, the definition of cyber crime and stipulations to fight it are not consistent, and too often cyber crime is conflated with cyberterrorism, cyber espionage, or cyber warfare.
The most robust international accord that addresses cyber crime is the Council of Europe Convention on Cyber Crime. With thirty-two parties and fifteen signatories, it is the only international legally binding accord that governs the issue. Importantly, it defines cyber crime offenses such as data interference, child pornography, and illegal interception. The accord also includes a yearly consultation process for parties carried out through the Convention Committee on Cyber Crime. Testifying to the need for strong international cyber crime governance, the United States and a number of other countries outside the region have ratified the treaty; more nations are considering doing so.
The convention is also the basis for other international standards on cyber crime. The United Nations [PDF], Interpol [PDF], and various regional organizations have encouraged countries to model national legislation on the articles of the Council of Europe Convention on Cyber Crime and have supported acceding to it. Numerous countries, including hotbeds of cyber crime such as Nigeria, have updated [PDF] national legislation to conform to the treaty. However, many underdeveloped states do not have the institutional capacity to fulfill requirements, complicating efforts to harmonize domestic legislation. The convention on cyber crime also includes an additional protocol, which attempts to counter the use of the Internet as a medium to spread xenophobia and racism.
Although the UN examined cyber crime and related issues in 2010, member states were unable to reach a consensus on whether to expand the Council of Europe Convention on Cyber Crime or to create a new global treaty. In many instances, calls for firmer global institutions and agreements to fight cyber crime are met with skepticism from online users and policymakers, who worry that cyber crime laws might limit freedom of speech and private-sector Internet use. Both the UN General Assembly and the Economic and Social Council (ECOSOC)—responsible for development issues—have introduced several resolutions on cyber crime, but the issue is low on their agenda. In this regard, the UN CCPCJ has been important in bringing cyber crime to the attention of member states. Created in 1992 at the request of ECOSOC, the commission has increasingly raised the issue of cyber crime with other parts of the UN system. In 2011 it spearheaded a draft resolution urging countries to provide capacity-building assistance to fight cyber crime.
One specialized agency in the UN, the International Telecommunication Union (ITU), has led [PDF] international information and communication technologies policy since 1865 (the body became a specialized UN agency in 1947). The ITU addresses the gamut of cyber crime problems, but its work on cyber crime has focused on data collection, research, and recommendations on building and harmonizing effective national legislation. The ITU also suffers from some important procedural weaknesses. Only UN plenary assemblies and world conferences can form ITU study groups to discuss relevant problems, but they meet only once every four years. Despite its flaws, the agency has launched some ambitious projects. One of its flagship projects, Child Online Protection, aims to protect children from malicious attacks in cyberspace. More recently, ITU joined forces with the UNODC to assess specific countries' institutional capacities, review legislation, provide technical assistance, and offer training opportunities. Although it is still too early to determine its success, the collaboration paves the way for more partnerships within the UN, where work on cyber crime is often fragmented and lacks prioritization.
Informal organizations and multilateral arrangements have established frameworks to facilitate the sharing of best practices and intelligence related to cyber crime. Interpol, along with its 190 member countries, relies on its I-24/7 worldwide communication system as well as its National Central Reference Points [PDF] network—a specialized group of investigators—to combat cyber crime. But even with these initiatives, many countries do not have adequate funding, enough cyber crime laws, or the institutional capacity to prevent, investigate, or prosecute cyber criminals. Furthermore, working in different jurisdictions to obtain evidence tends to be inefficient and slow. Numerous regional initiatives as well as nongovernmental organizations have also been established with the specific mission of preventing the exploitation of children through the Internet. Enforcement, though, remains limited by the inherent difficulties in tracing perpetrators of cyber crime, especially when occurring across borders and contrasting legal jurisdictions.
One major multilateral initiative, the Lyon Group, was created by the G8 in 1996. The Lyon Group gathers senior experts to discuss international crime issues and has a dedicated subgroup that addresses high-tech crime with the aim of helping law enforcement agencies enhance their strategies to prevent, investigate, and prosecute cyber crime. The G8 has also adopted forty operative recommendations to combat TOC, and all members are required to set up a 24/7 network of point of contacts to address computer crimes and requests. Still, current technologies do not have the capacity to fully track cyber crime, which hinders the subgroup's effectiveness.
At the regional level, organizations and ad hoc groups have attempted to tackle cyber crime. For instance, the OAS established a working group on cyber crime, which spearheaded a compilation of existing cyber crime legislation in OAS member states. The working group, backed by a recommendation from all OAS attorney generals and ministers of justice, has also requested that OAS member states consider applying the principles of the Council of Europe's Convention on Cyber Crime. Similarly, the Asia Pacific Economic Cooperation group has taken on the issue, with an action plan [PDF] to combat cyber crime that includes personal information protections, cybersecurity capacity building, and raising awareness against cyber crime. Nevertheless, cyber crime rates continue to climb in every region around the world.
Combating human trafficking and migrant smuggling: Record progress, but inadequate enforcement
Human trafficking is the only illicit activity classified as a crime against humanity. Although it manifests itself in many forms, forced labor and sexual exploitation are the primary types. Migrant smuggling is considered distinct from human trafficking, both legally and conceptually. In practice, however, it is difficult to differentiate between the acts of migrant smuggling and trafficking. Both target the poor and deceive or violently abuse victims. Some migrants become victims of trafficking, and smugglers may also serve as traffickers.
Global governance efforts and tools to combat human trafficking and migrant smuggling are generally uncoordinated, underresourced, and lacking in the political will to exert meaningful change. To date, no permanent mechanism for collecting and evaluating comprehensive data on human trafficking or migrant smuggling has been established, which presents a significant hurdle for international organizations and national governments to devise effective policies and strategies.
Until recently, no international agreement defined human trafficking or laid out a strategy to address it. Heightened international attention in the 1990s, however, paved the way in the UN for the Protocol to Prevent, Suppress, and Punish Trafficking in Persons (TIP protocol) to the UNTOC, which entered into force in December 2003. To date, 142 countries have ratified the TIP protocol and 128 countries have passed laws prohibiting human trafficking.
The TIP protocol broadly defined human trafficking under international law as the "recruitment, transportation, harboring, or receipt of persons, by means of… forms of coercion… for the purpose of exploitation." Its ultimate goal was to harmonize domestic legislation to criminalize the phenomenon.
Similarly, "migrant smuggling" was also undefined until the Protocol Against the Smuggling of Migrants by Land, Sea, and Air (Smuggling of Migrants protocol) to the UNTOC entered into force in January 2004. It identifies the crime as the "procurement, in order to obtain… financial or other material benefit, of the illegal entry of a person into a state." Ratified by 129 member states, the protocol does not aim to curb illegal immigration, but instead to undermine organized smugglers. Some experts have argued [PDF], however, that the protocol does not go far enough to protect the rights of migrants.
The protocols are the strongest measures to date on human trafficking and migrant smuggling. In particular, passage of the TIP protocol prompted the proliferation of regional conventions decrying human trafficking. The EU ratified the Brussels Declaration on Preventing and Combating Trafficking in Human Beings in 2002; the Association of Southeast Nations (ASEAN) passed the Declaration Against Trafficking in Persons, Particularly Women and Children in 2004; and the AU followed suit in 2006 and enacted the Ouagadougou Action Plan to Combat Trafficking in Human Beings, Especially Women and Children; among others. Many of these regional conventions, however, are not legally binding on member states, and have thus proven unable to effect significant change on the ground.
Regional action on migrant smuggling has been mostly limited to extending general protections to migrants. For example, the Organization of American States' Inter-American Program for the Promotion and Protection of the Human Rights of Migrants, Including Migrant Workers and their Families and the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers focus on the basic rights of migrant workers, with sporadic references to the issue of migrant smuggling.
Despite halting normative progress among regional organizations, enforcement has floundered at the national level. Many countries only recently passed laws codifying human trafficking as a crime, and in some countries such legislation is wholly absent. Definitions of the crime vary widely; many national laws are confined to trafficking of women, or only recognize sexual exploitation of trafficking victims and do not address other forms such as labor trafficking. Even if states have enacted requisite legislation, 40 percent [PDF] of these countries did not produce a single conviction between 2003 and 2008.
Many states have recently criminalized [PDF] migrant smuggling activities, but struggle to enforce the statutes. Of the few governments that try to combat migrant smuggling, resources are often directed to border controls rather than long-term measures. Many states do not see smuggled migrants as victims, but rather as illegal immigrants.
The United States plays a major role in global efforts to combat human trafficking. The U.S. Congress passed the Victims of Trafficking and Violence Protection Act (TVPA) in October 2000, which provided resources to monitor and reduce human trafficking. However, the TVPA expired at the end of 2011 and is yet to be reauthorized due to partisan deadlock over budget allocations. The U.S. State Department also produces [PDF] an annual trafficking report ranking 184 governments—including itself—on its actions against trafficking. Although somewhat politicized, the reports are a useful means of tracking implementation of international norms. Other organizations, such as the UN Educational, Scientific, and Cultural Organization and International Organization for Migration are also working to compile accurate data. In one high-profile initiative, the UN Global Initiative to Fight Human Trafficking and nongovernmental organizations (NGOs) partnered with other UN agencies to aggregate data. Though moderately successful, the project ended in 2009 and the information will soon be outdated.
The UNODC is charged with monitoring and implementing the UNTOC protocols, which it does by assisting countries with drafting legislation and creating national antitrafficking strategies. Its work is supplemented by the UN Office of the High Commissioner for Human Rights' (OHCHR) special rapporteur on trafficking in persons, special rapporteur on contemporary forms of slavery, and the special rapporteur on the human rights of migrants, who undertake country visits, monitor activities, and produce annual reports on their issue areas. In October 2011, the UNODC and the OHCHR joined forces to enhance cooperation, showing progress in efforts to streamline interagency work.
Countless international, regional, and local NGOs are dedicated to raising awareness of human trafficking. Amnesty International, Mercy Corps, and Human Rights Watch often publish country reports on trafficking, and the Global Alliance Against Traffic in Women has a broad membership of more than one hundred affiliated NGOs. Many of the NGOs focus attention on women and sexual slavery, often at the expense of labor trafficking issues.
Child trafficking, of course, remains sensitive and controversial. Although covered in the TIP protocol, some experts have argued that child trafficking deserves a separate accord. International instruments addressing the issue of child labor include the Worst Forms of Child Labor Convention, which defines "worst forms" as the sale and trafficking of children, forced labor, and recruitment for use in armed conflict. In addition, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict specifically addresses the recruitment and exploitation of child soldiers. Despite these landmark measures, efforts to coordinate child labor and trafficking efforts more broadly remain inadequate.
U.S. and International Transnational Organized Crime Policy Issues
Should the international community shift its focus to a broader, health-based approach to cut demand for illegal drugs?
Yes: Proponents [PDF] of a dramatic reset to fight narcotrafficking worldwide argue that attacking producers, suppliers, and transporters of illegal drugs unfairly burdens developing countries, increases the profitability of selling illicit drugs, and also severely raises the levels of violence associated with the trade. In 2011, the UN Global Commission on Drug Policy concluded that the U.S.-led war on drugs had failed, despite $2.5 trillion spent over forty years, precisely because the strategy focuses too heavily on criminalizing illegal drugs. It recommends a shift away from strict prohibition regimes in favor of public health policies to decrease demand, prevent drug abuse, and treat addiction.
Ultimately, attempting to eradicate production of drug crops like coca leaf or opium poppy only displaces the threat and leaves impoverished farmers with poorly implemented alternative livelihood strategies. Furthermore, methamphetamine use has skyrocketed in the past five years, which may account for much of the reduction in use of opiates and cocaine. Given resource constraints, law enforcement agencies must also target drug traffickers consecutively, which creates a feeding frenzy as groups fight to replace the arrested group and leads to exponential violence without decreasing the threat to the community. Finally, by illegalizing supply without devoting equal resources to cutting demand, the current strategy provides an extraordinary incentive to traffickers and producers to provide the drugs to users who are willing to pay high prices because the drugs are hard to come by.
No: Opponents of legalization argue that the greatest costs of drug use are not caused by prohibition regimes, but rather by the drugs themselves. Reducing demand is not possible without limiting drug availability. "When illegal drugs are readily available, the likelihood increases that they will be abused," explains the U.S. Office of National Drug Control Policy. When China was not able to regulate the supply of opium in 1900, for example, fully 25 percent of China's population was addicted to opium. Aggregated estimates demonstrate [PDF] that the current strategy of strictly punishing the production or transport of opiates, cocaine, and amphetamine-type stimulants has decreased instances of their abuse by 40 percent over the past century—implying that prohibition regimes have markedly decreased drug use around the world.
Furthermore, opponents say that relaxing controls on supply and use of drugs will not reduce violence because criminality stems from the need to earn quick, large profits outside the law rather than the nature of the illicit product being sold. Drug traffickers "would simply find another commodity to export." In addition, any relaxation of drug controls would still leave the drugs more heavily taxed or illegal—and therefore not disincentivize illicit trade in them, but only make them more readily available. Finally, theories that the government would benefit from taxing less dangerous drugs like marijuana, and shifting to prevention strategies instead, overlook the concerns that governments might be motivated to disregard the damage of addiction since higher levels of addiction would earn them more money.
Should the United States sign the Firearms Protocol?
Yes: The UN Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition (Firearms Protocol) to the UNTOC requires countries to adopt responsible legislation to prevent criminals from obtaining guns and implement controls to be able to trace firearms after they are manufactured. The United States helped draft the Firearms Protocol, but has not yet become a party to it. Doing so would not threaten the legal sale and purchase of guns in the United States, nor threaten Second Amendment constitutional rights to bear arms because it seeks only to decrease illicit trade in firearms through marking weapons, maintaining records on gun purchases, and improving licensing systems to prevent known criminals from purchasing weapons. Licit trade would thus not be curtailed. It would, however, significantly decrease the illegal sale of weapons bought in the United States and then sold to cartels that are wreaking havoc in Mexico and Central America—as well as decrease the illicit flows from Central Europe that fuel African civil wars.
No: Opponents to the Firearms Protocol believe that the language is vague, and could be progressively interpreted to curtail individual rights to own guns in the United States. In addition, the protocol does not regulate state-to-state transfers of weapons, which significantly contribute to weapon flows fuelling intrastate conflicts. Opponents of the protocol therefore perceive that the ultimate goal of the protocol is to restrict civilian ownership of firearms. Some have even argued that the right to protect oneself by purchasing a personal firearm is a human right, and should therefore not be limited, no matter how well-intentioned the Firearms Protocol may be.
Should the United States increase the use of unilateral sanctions on transnational organized crime groups?
Yes: The use of economic sanctions against TOC groups are an important recognition of the need to employ innovative strategies to target nonstate actors. Although terrorist groups and TOC groups do not possess similar goals, the structural similarities of these fluid networks imply that analogous mechanisms will be useful to fight both. The executive order freezes the assets in the United States of any individuals that are listed on the order's annex, as well as freezes the assets of U.S. persons (citizen, resident, or person physically located in the United States) who conduct financial transactions with a designated group. The sanctions will impose a much-needed limit on the financial gains of TOC groups, argue supporters of the move.
The sanctions also bear weight because violators can be fined up to $1 million or sentenced to twenty years in prison, or both. Furthermore, under the executive order, the U.S. secretary of the treasury is granted the power to impose sanctions on other groups, facilitating an adaptive process of punishing groups that emerge.
No: Though economic sanctions appear to be a sharp tool against organized crime groups, in reality, the groups earn billions from trafficking in weapons and people, and other crimes. As a result, sanctions will not significantly cripple their operations or deter people from engaging in criminal behavior. Furthermore, foreign governments may lack the capacity or will to cooperate with U.S. efforts. For example, Japan reacted to the recent U.S. sanctions on Japanese yakuza with "shock and shame," which will decrease the impact of U.S. economic sanctions on the group. It will also hinder the United States' ability to identify further criminals on whom to impose sanctions because they rely on Japanese government intelligence.
In addition, the targeted groups are "large and amorphous," and will further burden U.S. and international businesses with cumbersome due diligence responsibilities. Moreover, the strategy aims to root out illicit networks with law enforcement, rather than cut demand for their illicit services or use more comprehensive strategies to fight them. Any success in debilitating one criminal group, will only lead another to take its place.
Should the United States pursue a binding international convention related to cyber crime?
Yes: Proponents of a worldwide binding cyber crime convention claim that country-specific mandates will not address the threat because it is a quintessential transnational threat that requires global cooperation . The Internet is an open network and crimes can be perpetrated from within any country. More so than other crimes, the perpetrators of cyber crime directly and instantaneously attack people in foreign jurisdictions, and often target people in multiple countries at once. Cyber criminals can also act with extraordinary speed, increasing the need for swift judicial cooperation among multiple countries to identify criminals and shut down operations in a timely matter.
Extensive and integrated global cooperation is imperative to combat the threat. Bilateral arrangements between law enforcement or judicial agencies cannot keep up with cyber criminals, who operate without the impediment of national borders. A global convention would provide regulatory guidelines, a clearer definition of what constitutes cyber crime, and provide mechanisms for much-needed capacity building to help poor nations confront cyber crime. In addition, supporters believe a binding global treaty is feasible. The Council of Europe Convention on Cyber Crime, has been ratified and signed by countries outside of the European continent, for example.
No: Opponents of a binding international cyber crime convention argue that the inherent difficulty of investigating cyber crime would render enforcement of a potential convention nearly impossible. Many cyber crime attacks are never detected [PDF], and cyber criminals are able to mask their identity with relative ease. Moreover, monitoring nations' compliance with a global cyber crime convention is unrealistic as the technology used to conduct cyber crime—such as computer viruses, worms, denial of service attacks, scripts—changes [PDF] so rapidly.
In addition, efforts to control cyber crime threaten freedom of speech and open the door to invasions of private citizens' privacy, as well as impose limits on the sharing of information via the internet. Enforcement of anti–cyber crime regulations would almost certainly impose [PDF] heavy burdens on the private sector, and opponents of a global accord argue that independent businesses and citizens are better placed to regulate cyber crime themselves. For example, banks have the motivation and funds to invest in protecting their systems and international regulations would do little to improve on their efforts.
Should the International Commission Against Impunity in Guatemala (CICIG) model be expanded for broader anticorruption efforts?
Yes: Supporters of CICIG argue that it is one of the most successful anticorruption initiatives, and should be replicated outside Guatemala or expanded into a regional model. CICIG was first initiated [PDF] by the Guatemalan human rights ombudsman and subsequently earned support from the Guatemalan "government, civil society, institutions for the defense of human rights, UN agencies in Guatemala, and the churches" [PDF]. Because of this local support, CICIG has been better integrated [PDF] into the domestic judicial system. UN support for CICIG, and its hybrid structure that includes international investigators and prosecutors, are also innovative mechanisms that increased its effectiveness and legitimacy.
By 2010, CICIG cooperation with Guatemalan prosecutors and investigators had led to the arrest of a former president for embezzlement, two former national police chiefs for drug connections, former defense officials for fraud, as well as ousted thousands of policemen, ten prosecutors, three supreme court justices, and an attorney general. Advocates of CICIG have lauded the program for its aggressive anticorruption efforts and for raising public awareness of organized crime. In 2010, Honduras and El Salvador consulted with the United States to tentatively establish country-specific models based on CICIG. Although the proposal has yet to come to fruition, supporters argue that it is the most effective method for combating corruption to date, and should be expanded to the region.
No: Critics argue that the CICIG model is fundamentally flawed and unsustainable for several reasons. First, CICIG was formed at the request of the Guatemalan government; it is unlikely that other countries known for similarly high levels of corruption would voluntarily invite the UN to encroach on their national sovereignty. Second, the model is predicated on strong cooperation between the UN and the national government, but CICIG faced significant domestic resistance in Guatemala. The former head of CICIG resigned in 2010, arguing that the Guatemalan government had not fulfilled promises to reform the justice system, particularly its failure to adopt stronger anticrime and anticorruption legislation. The Commission suffered from poor oversight, and has conducted investigations in cases where "it has no business." The program has also been accused of interfering with Guatemala's justice agenda rather than helping bolster it and has not managed to get anticorruption legislation through the Guatemalan legislature. In addition, some contend that the body has disproportionately focused on high-profile arrests and prosecutions, skirting its mandate to transfer technical capacities to Guatemalan officials, which is critical to long-term sustainability and future progress. As a result of these serious flaws, CICIG was less popular than the corrupt Guatemalan attorney-general's office in October 2011 polls.
June 2013: Microsoft and FBI hack back
In its effort to disrupt cybercrime, Microsoft took part in "Operation Citadel" to disrupt more than a thousand botnets. The botnets in question are allegedly responsible for $500 million in losses to financial institutions, banks, and consumers and are composed of over five million personal computers. Operation Citadel was supported by the FBI and other government agencies.
June 2013: ICC rules that Libya unprepared to try Saif Qaddafi
The International Criminal Court's pre-trial chamber has ruled that Libya's request to try the son of the former Libyan leader Muammar al-Qaddafi be rejected. Saif al-Islam Qaddafi has been indicted on war crimes and is currently being held in Zintan, Libya. The ICC's ruling is based on the contention that Libya continues to "face substantial difficulties in exercising fully its judicial powers across the entire territory." The Libyan government, for its part, continues to insist on its ability to try its own citizens.
June 2013: ICC accused of "hunting" Africans
Amid the furor related to the ICC's case against newly-elected President Uhuru Kenyatta of Kenya, the African Union has accused the International Criminal Court of "hunting" Africans. African leaders voiced their concern that of those indicted by the UCC, "99 percent are Africans." The ICC has insisted that it acts impartially and has vowed to press ahead with its case against President Kenyatta and his deputy, William Ruto stemming from the 2007 post-election violence in Kenya.
May 2013: Gaddafi's son in Libyan Court
Saif al-Islam, son of former Libyan president Muammar Gaddafi, appeared briefly in a Libyan court in Zintan. The case against him relates to information he provided to investigators to the International Criminal Court. The Libyan government alleges that this information endangers Libyan national security. Al-Islam, handed over by Mauritania to the new Libyan regime, is currently the subject of a tug of war between Libya, France, and the ICC. The latter two would like to extradite him to face war crimes. Libya's public prosecutor has said that a domestic indictment for war crimes is being prepared. The ICC will rule in May as to whether Libya will adequately carry out the trial of Saif al-Islam and Gaddafi's former intelligence chief, Abdullah al-Senussi.
May 2013: Serbian president apologizes for Srebrenica massacre
Serbian president Tomislav Nikolic apologized on behalf of Serbia for the attacks carried out in Srebrenica during the Bosnian War in 1995. During these attacks an estimated 8,000 people were killed. The move, expected to help Serbia's bid to become part of the European Union, stopped short of describing the atrocity a genocide. Zeljko Komsic, the Croat member of Bosnia's presidency, described the apology as a "positive surprise" as Serbia and Bosnia continue to improve their relations.
April 2013: Wildlife crime and illegal forestry a growing threat
A United Nations conference in Vienna suggested that wildlife crime and illegal forestry has become the fourth-largest transnational crimes in the world behind illicit trade in drugs, arms, and human beings, respectively. While the World Wildlife Fund estimates that the global trade is worth $17 billion annually, the United Nations Office on Drugs and Crime suggests that the illegal trade in wildlife and wood-based products in the Asia-Pacific region alone is worth $19.5 billion.
April 2013: Sudanese ammunition linked to Ivorian civil war
According to a United Nations report, army forces under the command of former Ivorian president Laurent Gbagbo used ammunition rounds produced in the Sudan during the four-month long civil war in the country. The United Nations Operation in Cote d'Ivoire (UNOCI) contends that these rounds were likely trafficked into the country following French and UN intervention on the side of newly installed president Outtara. If proven, the trafficking of the weapons would represent a breach of the arms embargo first imposed in 2004 on the Ivory Coast.
April 2013: Five extradited to the United States from Guinea-Bissau
A sting operation in Guinea-Bissau led to the extradition of five suspects in a U.S.-led operation to combat the cocaine-arms trade in the country. General Antonio Indjai, the commander of Guinea-Bissau's military and wanted by the U.S. government, was not captured during the incident. Guinea-Bissau has come under increasing scrutiny following the rise in drug and arms smuggling from the small West African state and the government's links to Columbian drug cartels.
April 2013: UNODC Report—Transnational crime in East Asia
The United Nations Office on Drugs and Crime completed its first comprehensive study on transnational organized crime threats in East Asia and the Pacific in April 2013. The report, which studies twelve selected contraband markets including trafficking in humans, narcotics, stolen goods, and environmental products, found that these markets are worth $90 billion each year. A third of this value stems from drug trafficking with sixty-five metric tons of heroin worth $16.3 billion flowing through the region in 2011. The report also highlights the growing threat posed by fraudulent medicines and environmental crime related to extractive industries.
April 2013: China and United States agree to cooperation on cybersecurity
Talks between China and the United States concerning their efforts to combat cyber threats began in early March amid accusations from both sides that the other was involved in aggressive hacking campaigns against both public and private servers in their respective countries. By late April, the United States and China held their highest-level military talks in two years as the chairman of the Joint Chiefs of Staff, General Martin E. Dempsey, met with General Fang Fenghui following Secretary of State Kerry's visit to China. These talks agreed to setting up a cooperative "mechanism" to work together on issues related to cybersecurity though progress is likely to remain slow.
March 2013: DRC rebel leader at ICC
General Bosco Ntaganda, who fought for a number of rebel groups and the army in the Democratic Republic of Congo (DRC), turned himself in to the U.S. Embassy in Kigali, Rwanda. He was then sent to The Hague, where he appeared before the International Criminal Court facing seven counts of war crimes and three counts of crimes against humanity that took place in the Ituri region of the DRC between 2002 and 2003 while fighting for the Union of Congolese Patriots led by Thomas Lubanga. Thomas Lubanga, incidentally, has been the only individual convicted by the ICC of war crimes to date. General Ntaganda has also previously been indicted by the ICC for recruiting child soldiers in 2006.
Options for Strengthening the Global Regime Against Transnational Crime
U.S. and international action are needed to manage the threat of TOC. These recommendations reflect the views of Stewart M. Patrick, director of the International Institutions and Global Governance program, and James Cockayne, codirector of the Center on Global Counterterrorism Cooperation.
In the near term, the United States and its partners should pursue the following initiatives to bolster global anticrime efforts:
- Improve data with a trust fund for independent research
The United States and its partners require more reliable data on transnational crime to appropriately allocate resources where they will achieve maximum impact—and reduce spending on ineffective programs. To accomplish this, the United States should work with likeminded governments to establish a UNODC trust fund to improve data collection on a range of transnational criminal issues. UNODC currently compiles global statistics on drugs, human trafficking, and corruption, but the mechanisms are flawed due to limited in-country resources, manipulation of data, and low levels of participation from local institutions. The trust fund can be used to build the technical expertise of local staff that collect and analyze the data, and create a mechanism for ongoing training as noted in a report [PDF] by the UN Commission on Narcotic Drugs. An effective example for data analysis that could serve as a model is the "crime observatories [PDF]" program, managed by the International Center for the Prevention of Crime, which aim to improve the analysis on criminal data.
- Draw on lessons from antiterrorism efforts
The U.S. experience fighting global terrorist networks since 9/11 can provide important lessons on how to weaken TOC groups. The United States should press to apply to transnational crime successful initiatives from the counterterrorism regime, such as the systems of joint threat analysis and international and public-private relationships, that the United States built to tackle the threat of terrorism. The U.S. government has already recognized how some counterterror strategies can apply to anticrime efforts, like the use of sanctions against criminal networks that resembled sanctions on al-Qaeda. It should push for broader international cooperation to reinforce their impact.
In addition, the FATF recently combined its standards for money laundering and terrorist financing, which will effectively require states to improve general anti–money laundering regulations in order to comply with UNSC resolutions on counterterrorist financing. The United States should both revise domestic frameworks to comply with the updated standards, and insist that other nations follow suit. Finally, the United States should elevate the importance of combating international criminal networks in diplomatic relationships with existing allies in the "global war on terror," noting that the two are increasingly interconnected, as both sets of illicit actors increasingly form tactical alliances and appropriate one another's methodologies.
- Bolster anti–money laundering regulations
The IMF and World Bank estimate that between $2 and $3 trillion is laundered each year. But worldwide, only $170 million is detected and stopped annually. There are a number of areas where the U.S. government could work more closely with the financial sector to crack down on money laundering and address its intertwining with politics. Positive steps would include closer scrutiny of banking practices of public officials globally, as well as partnerships to develop more effective supervision of informal remittance networks and money transfer systems.
Furthermore, current anti–money laundering standards in the United States require banks to know their customers. But evidence of significant illicit transactions suggests that these regulations need to be implemented more faithfully. The United States should also work more assiduously with international partners to clamp down on the use of offshore tax havens by U.S. corporations or individuals, since such havens are often used to launder the proceeds of illicit trade.
In the longer term, the United States and its international partners should consider the following steps:
- Streamline U.S. government anticrime capacity building
The United States should streamline existing capacity-building efforts, which are currently scattered across numerous domestic and international agencies. Currently, the U.S. Department of State bureaus of international narcotics and law and counterterrorism, the Drug Enforcement Administration, the U.S. Agency for International Development, the National Institute for Justice, and Department of Defense—in addition to an array of international programs—all conduct operations to bolster the ability of developing countries to fight transnational crime. Building on the 2011 Strategy to Combat Transnational Organized Crime, the U.S. government should compile a database mapping its efforts to counter transnational crime across regions and issue areas, and use the results to improve coordination and reduce duplication of efforts.
- Support evidence-based drug policy
The United States should support an evidence-based approach to tackling illicit drugs—and end its inflexible commitment to prohibition regimes that prioritize supply reduction over analysis of pricing incentives, strategies for cutting demand, and harm reduction programs. For example, heroin substitution programs have "led [PDF] to an overall reduction in the number of people addicted…[and] reduced levels of other criminal activity associated with the market." Generally speaking, global prohibition regimes perversely inflate the price of illegal drugs, creating tremendous market incentives for people to produce and transport these forbidden commodities. Studies [PDF] of alternative anti-drug policies have often proved not only successful in tempering incentives to sell illicit drugs, but have also not resulted in increased drug use. At times, these policies have actually decreased violence more than law enforcement interventions. These were the conclusions of the Global Commission on Drug Policy, whose nineteen members included a former U.S. secretary of state and former U.S. chairman of the Federal Reserve, and four former heads of state. The U.S. government must engage in a more open debate about policies to manage drug abuse.
- Combat criminal impunity
In countries with fractured judicial systems, weak rule of law, or widespread corruption, violent criminal organizations can operate with impunity. The United States and its international partners should explore the possibility of setting up a complementary, international judicial framework that could prosecute criminals if local judicial systems are deemed incapable of holding a fair trial. The UN should revisit relevant early debates about the International Criminal Court (ICC), which some originally proposed should also try drug traffickers. Even as human trafficking has been labeled a crime against humanity, and as the number of people murdered by criminal organizations surges in parts of the world, many criminal groups operate with impunity [PDF]. In these instances, the United States should consider an international alternative to local courts. This might include prosecuting egregious violent crime under the mandate of the ICC, establishing a distinct body to try such cases, or setting up hybrid international-national courts.