Monday, November 11, 2013
Doubting the UN Convention against Transnational Organized Crime
By Paulo Pereira
crime has emerged in recent years as an important security issue on the international agenda, presenting considerable challenges
to policy makers, researchers and agents combating these crimes. Governmental and academic actors have focused their discussions
on the answer to the question "what is transnational crime?" with the belief that a more accurate and objective
definition of the phenomenon would have a more effective impact. So, like many other categories of social sciences, defining
"transnational crime" has become a constant challenge.
in 2000, through the Convention against Transnational Organized Crime, tried to find an institutional response to this dilemma
to solve the obstacle posed by the difficulty of a common definition across countries. It meticulously detailed every aspect
of the category: "crime," "organized," "transnational" and its derivations or complements, such
as "structured group," "property," "serious crimes," and "confiscation" among many
others. This multilateral instrument proposed building an accepted homogeneous and global category for identifying and combating
cross-border crime. From this first step of international recognition of a common threat, there should have followed an introjection
of the parameters elaborated by the Convention in national laws and practices of law enforcement in each of the State parties.
However, despite of the effort made by most of the member countries of the UN and the ratification
of the Convention, the controversies over the definition and fight against transnational crime have continued over the past
few years, even among the signatory countries themselves. The major criticism regarding the definition proposed by the UN
is its underlying universal moral principles and consequently its inability to grasp the specific local and regional crime
context, as well as its disregard for the ambiguities between the lawful and legitimate, in addition to its apolitical and
The text of the Convention, adopted by the General Assembly
in 2000 and in force since 2003, is seen by the UN as the main reference for the contemporary fight against illegal cross-border
activities. Besides the convention there are three additional protocols that focus on specific topics: 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
There are two important aspects concerning the convention
and its protocols. The first is that this document became a landmark on the subject once it recognized the issue as a homeland
security threat and also as an international security threat, besides establishing a common assessment that the fight against
these activities can only be effectively addressed through international cooperation between the countries subjected to this
The second important aspect concerns the fact that the states
that have signed and ratified the text of the Convention to adopt various measures against transnational organized crime,
including its criminalization in national legislation and law enforcement procedures related to the accusation, trial, sanctions,
jurisdiction, extradition, as well as forms of mutual legal assistance, joint investigations, protection of witnesses and
victims. Prevention measures focusing on economic development assistance and technical support were also part of their final
draft (UNODC, 2004). Thus, the convention of 2000 should be seen as an effort to promote the interests of UN law enforcement
toward internationalization of social norms and ethical standards (ANDREAS; NADELMANN, 2006:173).
The convention, however, despite a clear effort to define transnational crime and how to combat it, leaves many important
aspects of the theme unanswered or, more importantly, with broad and ambiguous answers. This reveals the difficulty of preparing
a text acceptable to 125 countries at the time, especially dealing with a subject as complex as transnational crime. It's
important to highlight two aspects in this regard: the first concerns the scope of the convention; the second concerns the
definition of transnational organized crime itself.
In other words it's
possible to say that the breadth of the convention does not have clear boundaries and the concept of transnational organized
crime is not well defined (DUYNE; NELEMANS, 2012:43).
The scope of the
convention is extremely broad regarding what intends to criminalize internationally. The expected efforts for the prevention,
investigation and prosecution cover four types of offenses: participation in a criminal organization (Article 5); involvement
in money laundering (Article 6); corruption (Article 8); or obstruction of justice (Article 23). Each of these references
can cover a wide variety of illegal practices. The interpretation of what is to be effectively addressed will depend on various
circumstances and social contexts in which the countries are inserted. With respect to, for example, corruption, given the
complexity of the subject, even though it was included in the agreement, the understanding was that a specific convention
would be required only to deal with this theme (VLASSIS, 2005:143). Another example of the breadth of the proposed agreement
concerns the foreseen prevention of all these crimes, which is extremely lax (VLASSIS, 2005:146), besides being difficult
to be assumed by the countries as an obligation because of the lack of parameters for its enforcement.
The current definition, proposed by the convention of transnational organized crime is still
controversial. It is separated into two parts: the first concerns the definition of "organized crime," and the second
the definition of "transnational." Regarding the first, the convention dictates that organized criminal groups:
shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of
committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly
or indirectly, a financial or other material benefit (UNODC, 2004:5).
definition opens up a universe of ambiguities and questions. What is a structured group? How long is "a period of time"?
How to evaluate "serious crimes"? This is just to name some of the more immediate problems. The answers are vague.
The convention states that a structured group is a group formed in a "not random" way and that "even though
its members have not formally defined roles, there is no continuity of its membership and that it does not have a developed
structure." These are characterizations that instead of restricting the possibilities of identifying such groups expand
it, since all of its parameters are essentially interpretative and not objective. This may lead us to clear contradictions,
once the structured group does not need to have defined roles, continuity in its composition or a developed structure it can,
finally, simply not have a structure (DUYNE; NELEMANS, 2013:43).
of "serious crimes" is another complicated definition. The convention defines it as a "conduct that constitutes
an offense punishable by a maximum deprivation of liberty of at least four years or a more severe punishment" (UNODC,
2004:5). In the Brazilian case the simplest crimes against property have been put under this category. A pick-pocketing act
can get from one to four years in prison, according to the country's penal code and it is obvious that this kind of act
is far from being a "serious crime."
Finally, according to the
convention (UNODC, 2004:6), a transnational offense occurs if:
is committed in more than one State;
(b) It is committed in one State
but a substantial part of its preparation, planning, direction or control takes place in another State;
(c) It is committed in one State but involves an organized criminal group that engages in
criminal activities in more than one State; or
(d) It is committed in
one State but has substantial effects in another State.
Once again, it
is important to question these parameters. How to characterize, if not interpretatively, "substantial" or "substantial
effects"? Thus, the effort made by the convention to specify the characteristics of transnational organized crime in
order to provide a standard and therefore a legal reference for countries, lacks clarity and objectivity.
Here's an example given by Duyne and Nelemans (2013:44) that exposes some possible conclusions
from the role definition of transnational organized crime made by the 2000 Convention.
Three regular female shoplifters (no developed structure, no defined roles) could qualify as an organized criminal
group depending on what it meant by ‘regular' in terms of period of time. (...) This group is not formed spontaneously
in order to go shoplifting immediately, but the ladies talked it over during the evening (...) and made a plan of which shops
to visit. Of course, this is not yet ‘transnational organized crime.' But we can easily expand the example by imagining
that the ladies are from Maastricht and are shoplifting in the nearby towns of Aachen and Liège: then article 3-1(b)
and 2 apply.
Of course this example is an exaggeration, but it exposes
the problems with the definition proposed. Depending on the circumstances, this definition could lead to policies of mass
incarceration in some countries even not addressing the main problem of transnational organized crime. On the other hand,
these deficiencies allow countries to promote a variable introjection and thus very few homogeneous parameters proposed by
"The UN Convention against Transnational Organized Crime and its Ambiguities," by Paulo Pereira, was published by e-International Relations (e-IR) on October 25, 2013; e-IR's content is licensed under a Creative Commons Attribution.
Paulo Pereira is a lecturer in International Relations at Pontifícia Universidade
Católica de São Paulo (PUC-SP), Brazil. He is also coordinating research on transnational crime in South America,
financed by the Brazilian National Council for Scientific and Technological Development.