DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM

PROJECT ON

Transnational Organized Crime and International Law- A critical analysis

SUBJECT

Public International Law

NAME OF FACULTY

Prof Aruna Kammila

BY

G.SAIDEEP

18LLB077

Fifth semester

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ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher who gave me the golden
opportunity to do this wonderful project on Transnational Organized Crime and International
Law- A critical analysis, which also helped me in doing a lot of Research and I came to know
about so many new things I am really thankful to them.

Secondly I would also like to thank my friends who helped me a lot in finalizing this project
within the limited time frame.

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Contents-

1. Introduction………………………………………………………………………….7

2. Characteristics of organized crime…………………………………………………..8

3. UN Conventions on Transnational Organized Crime…………………...………….12

4. Transnational Organized crime under branches of International Law………...……17

5. International Criminal Court Developments………………………………………..22

6. Transnational Organized Crime and failing states………………………………….25

7. Conclusion……………………………………………………………………….….26

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 PIL SYNOPSIS

TITLE: Transnational Organized Crime and International Law- A critical analysis

ABSTRACT:

When a group of people come together to commit a crime, it can be considered as an organized
crime. And when these criminal activities are carried out in different countries by a group of
people with same intention, then it takes the shape of a Transnational Organized Crime. The core
organized crime activity is the supply of illegal goods and services to countless numbers of
citizen customers. With the signing of the United Nations Convention against Transnational
Organized Crime in Palermo, Italy, in December 2000, the international community
demonstrated the political will to answer a global challenge with a global response. Organized
criminal groups and their protectors rely on skilled individuals or support to assist the criminal
groups on an ad hoc basis. Such specialists include pilots, chemists, lawyers, arsonists, hijackers,
shooters, etc. Criminal organizations adopt measures to protect the group and to guard against
the prevention of their activities. To this end, arrangements are made with doctors, lawyers,
policemen, judges, politicians and government officials. In exceptional circumstances, the armed
violence of gangs and criminal organizations can fall within the scope of IHL. As a rule,
however, this body of law is not applicable in efforts to combat these non-state entities.

OBJECTIVE:

The objective of this research is to find about working of International Criminal Gangs and the
methods employed by different governments to control these activities. And also to recommend
laws at international level that can be implemented to curb the criminal activities of these gangs.

SCOPE:

In this research paper the author will be dealing about the Criminological and international law
aspects of Transnational Organized Criminal Gangs and the present laws implemented by
different countries and international law enforcement agencies to deal with these kind of Non
State Actors.

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RESEARCH METHODOLOGY:

Nature of the Study: Analytical, critical and descriptive study.

MODE OF CITATION: Bluebook 20th edition.

RESEARCH QUESTIONS:

1. Whether the present international law is effective in curbing the activities of International
Organized Criminal Gangs?
2. Whether domestic laws followed by different countries can be implemented at
international level for controlling these gangs?

HYPOTHESIS:

Transnational organized crime has become a substantial danger to the political, social, economic
and financial stability of states; it also reflects the generalized deterioration and reorganization of
government authority. International criminal court has played its role in reducing this crime
among the countries.

LITERATURE REVIEW:

Books-

1. International law and transnational organized crime

Author-Pierre hauck

In this book the author clearly discussed about the various aspects of Transnational Organized
Crime and various forms it takes. The author also discussed about the United Nations convention
Against Transnational Organized Crime and the protocols that were enacted along with it. The
role of International Humanitarian Law and International Criminal Law in curbing Organized
Crime has also been mentioned.

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Articles-

1. Criminalized’ Islamic State Veterans – A Future Major Threat in Organised Crime

Development?
Author(s): Martin Gallagher

This article considers the implications of criminalized Muslim Diaspora community members
from the West travelling to the Middle East and becoming involved in the terrorist activities of
the Islamic State (IS), and ultimately returning from whence they came. The views of a selection
of recently retired police professionals were gathered, and were found to support concerns
around this potential significant and dangerous outcome of homecoming foreign fighters.

2. Organized Crime in Russia

Author-Shobha Gaekwad ,
When Russia began economic liberalisation, it abandoned the socialist system without
putting in place an alternative. This was fertile ground for economic crimes. Powerful
politicians and bureaucrats took control of economic enterprises. There was uncontrolled
parallel economy and organised crime took hold and spread. Embezzlement, murder,
drug trafficking and arms smuggling have become a part of life in Russia.
3. Using the Viable Systems Model to examine multi-agency arrangements for
combatting transnational organised crime
Author(s): J Brocklesby

Traditionally, most operational research applications in the area of law enforcement and criminal
justice have used quantitative techniques to forecast patterns and levels of offending and to
optimize various police, judicial and prison processes. This paper seeks to examine the role that
more qualitative modeling approaches might contribute in this important application area.
Specifically, the paper examines the role that cybernetic theory and viable systems modeling can
contribute in helping government bodies and law enforcement agencies to think through how,
organizationally, they can best respond to the increasingly complex problem of transnational
organized crime.

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 1. Introduction

Interpol defines organised crime as "any enterprise or group of persons engaged in continuing
illegal activity which has its primary activities that bring together a client-public relationship
which demands a range of goods and services which are illegal."1

“However, while defining several attributes of such organised syndicates, few more conceptual
clarifications need to be made. For example, John Dellow, Assistant Commissioner,
Metropolitan Police, London, ascribes the following three basic features to organised crime:

 Organised crime can involve any group of individuals that is structured, sophisticated and
widely spread across nations.
 It is a section of society that seeks to operate outside control of the people and their
government.

It is a self-perpetuating, continuing criminal conspiracy for profit and power, using fear and
corruption and seeking protection from law”

Organized Crimes are no longer confined to geographical jurisdictions or national boundaries;

instead, they have become transnational problems. Such crimes have existed in different forms,
but the contemporary patterns are more complex that they have been in history. Transnational
Organized Crimes (TOCs) affect almost every country, and are promoted by various factors
including globalization, poverty and unequal wealth distribution, technological innovations,
corruption, inadequate governance, geographical location and many others.2

In November 1994 the World Inter-Ministerial Conference on Transnational Organized Crime

was held in Naples under the auspices of the United Nations. Two years later, when the President
of the United States, William Clinton, presented the revision of the National Security Strategy to
Congress, he mentioned for the first time the fight against international organized crime as a
matter of national security.

1
Marine, The Threat Posed by Transnational Crime, p. 25.
2
transnational organized crime in india: a new framework of analysis, Nafiu Ahmed, European Journal of Social
Sciences, volume 2

7
As a further example of this common 2 concern, the New Strategical Concept of North Atlantic
Treaty Organization, completed in 1999, remarks that Alliance security interests can be affected,
among other risks, by organized crime.

2.Transnational Organized Criminal Groups

As discussed earlier when a an organized crime syndicate extends its boundaries and starts
operating from different countries, then such a group will be considered as a Transnational
Organised Criminal group. These groups play a very important role in the destabilizing the
countries growth and the rights of the people of that will be at stake.

In Italy, for instance, it was calculated that the mafia controlled roughly twelve per cent of the
national economy around the middle of the eighties, and was significantly responsible for the fall
of the First Republic set up after the Second World War, as a result of the generalized climate of
corruption which held the country in its grip.3

Similarly, the public exposure of close corrupt ties between the Japanese Liberal Democrat Party
and the domestic criminal groups, the Yakuza, led to the fall of a government which had lasted
more than forty-five years and discredited democracy itself in the eyes of a good part of the
population. In addition, the extortion and intimidation practiced by the Yakuza during the
economic expansion of Japan along the eighties, in order to be given credit concessions by the
banking corporations, which today comprise a large share of failed credit, ended in an huge crisis
of the financial system and generalized economic instability in the region. And this destabilizing
potential of transnational organized crime is actually growing.4

2.1.Russian Mafia-

Russian organized crime (ROC) is composed of several transnational criminal organizations

operating worldwide. Contrary to popular belief, the Red Mafia is not one cohesive organization,
but rather an umbrella term for a loose network of autonomous criminal groups. What these
disparate groups share, besides their Soviet roots, is a passion for any and every remotely

3
Transnational organized crime as an increasing threat to the national security of democratic regimes: assessing
political impacts and evaluating state responses, Fernando Reinares, available at
https://www.nato.int/acad/fellow/97-99/reinares.pdf
4
ibid

8
profitable criminal activity. ROC is, if nothing else, resourceful, having a hand in everything
from human trafficking to fraud. Unlike other international criminals groups—such as La Cosa
Nostra (which specializes in protection extortion) or the Mexican cartels (drug trafficking)—
ROC is involved in almost every criminal activity. Name a crime, and the ROC circuit is bound
to have it in its extensive repertoire: money laundering, kidnapping, prostitution, fraud, drug
trafficking, human trafficking, weapons smuggling, extortion, auto theft, counterfeiting and, of
course, murder.

Russian organized crime is also unique in that it does not possess a clearly defined, top-down
hierarchy. Unlike the Italian mafias, with their capofamiglii, or the Chinese triads, with their
“mountain masters,” the Russian Mafia structural ranking does not include irreplaceable leaders.
It would be impossible to take down a few “heads” of the Red Mafia in order to topple the entire
organization because they simply do not exist. This gives ROC an invaluable strategic advantage
over those attempting to dismantle it.

The 1990s in post-Soviet Russia have seen a surge of alliances being formed between Moscow
OC groups and other regional groups and the ROC’s increasing foray into more advanced
criminal enterprises. Yet despite entry into fields such as bank fraud and rigging auctions in
order to acquire former state enterprises through privatization, violence remains a staple of ROC
activities. ROC groups are heavily armed, and contract killings have become increasingly
problematic for law enforcement officials.

According to government investigators, by 1992 “more than half the country’s criminal groups
had ties to government.”5 Perhaps the only thing that distinguishes law-abiding members and
those involved in ROC is the higher standard of living enjoyed by the latter. Members of ROC
tend to be high spenders, gravitating towards mansions and other displays of wealth in an effort
to glean respect from their peers.

Within Russia, businesses large and small find it essentially impossible to operate without paying
“protection” money. Often, these businesses pay 10-60% of their pre-tax income to various ROC
groups.6

5
Handelman, Stephen. “The Russian ‘Mafiya”. Foreign Affairs: Issue 2. 87. Jan. 1994. Web.
6
Webster, William H., ed. Russian Organized Crime. Washington, DC: Center for Strategic and International
Studies, 1997. Online. Global Organized Crime Project.

9
Disillusioned citizens pose a greater threat than simply a moral one. The ROC exploits
corruption, poor living conditions, and unpaid military salaries—problems that ROC helps
perpetuate—in order to influence key players throughout the Russian sociopolitical sphere. With
the protectors of Russian nuclear arsenals being among those experiencing low morale and late
paychecks, there is a heightening concern that we will soon face the crisis of ROC-controlled
nuclear weapons.

2.2.Chinese Triads-

The term ‘triad’ is neither Cantonese nor Mandarin but rather the English word used to describe
‘dark societies’ and has become synonymous with Chinese organised crime in general.

Triads have been regarded by some authorities as participating in a worldwide crime network
that uses connections among overseas Chinese to undertake transnational crime such as drug and
human trafficking.7 Fears that HK triads would re-establish abroad en masse with the return of
Chinese sovereignty in 1997 appear not to have materialised despite alarmist predictions.
However, significant triad-related capital and capacity where thought to have reached among
others Toronto, Vancouver, Sydney and Los Angeles that enabled such groups to hedge risk and
transfer resources. Market reforms initially in Shenzhen SEZ in the 1980s and later elsewhere in
China provided more attractive opportunities and lower costs for criminal enterprise.

The complex nexus between organised crime and triad societies may be partially revealed by
examining the nature of lethal violence associated with triad membership and organised crime.
The production and provision of illegal goods and services are supported by different roles
played by illegal entrepreneurs, triad specialists, delinquent professionals, corrupt police and
other officials. Illegal entrepreneurs invest and exploit illicit markets and are connected to the
customers of these markets by the ‘protection’ provided by triads.

2.3.Mexican Drug Cartels-

Mexican drug trafficking organizations (DTOs) pose the greatest crime threat to the United
States and have “the greatest drug trafficking influence,” according to the annual U.S. Drug
Enforcement Administration’s (DEA’s) National Drug Threat Assessment. These organizations
7
B. Lintner, Blood Brothers: The Criminal Underworld of Asia (New York: Palgrave Macmillan, 2003); M. Booth,
The Dragon Syndicates: The Global Phenomenon of the Triads (New York: Carroll and Graf, 1999).

10
work across the Western Hemisphere and globally. They are involved in extensive money
laundering, bribery, gun trafficking, and corruption, while causing Mexico’s homicide rates to
spike. They produce and traffic illicit drugs into the United States, including heroin,
methamphetamine, marijuana, and powerful synthetic opioids such as fentanyl, and they traffic
South American cocaine.

Mexico’s DTOs have been in constant flux. Former Mexican President Felipe Calderón
(20062012) launched an aggressive campaign against the country’s drug traffickers that was a
defining policy of his government, which the DTOs violently resisted. By some accounts, there
were four dominant DTOs in 2006: the Tijuana/Arellano Felix organization (AFO), the Sinaloa
cartel, the Juárez/Vicente Carillo Fuentes organization (CFO), and the Gulf cartel. Government
operations to eliminate DTO leadership sparked organizational changes, which increased
instability among the groups and violence. Over the past 12 years, Mexico’s large and
comparatively more stable DTOs fragmented, creating at first seven major groups, and then nine.

The scope of the violence generated by Mexican crime groups has been difficult to measure due
to restricted reporting by the government and attempts by crime groups to mislead the public.
The criminal actors sometimes publicize their crimes in garish displays intended to intimidate
their rivals, the public, or security forces, or they publicize the criminal acts of violence on the
internet. Conversely, the DTOs may seek to mask their crimes by indicating that other actors or
cartels, such as a competitor, are responsible. Some shoot-outs are not reported as a result of
media self censorship or because the bodies disappear. One example is the reported death of a
leader of the Knights Templar, Nazario Moreno Gonzalez, who was reported dead in 2010, but
no body was recovered. Rumors of his survival persisted and were confirmed in 2014, when he
was killed in a gun battle with Mexican security forces.8

3. UN Conventions on Transnational Organized Crime

United Nations Convention against Transnational Organized Crime-

8
Ioan Grillo, Gangster Warlords (New York: Bloomsbury Press, 2016). See also, Parker Asmann, “Walled Inside
Homes, Corpses of Mexico’s Disappeared Evade Authorities,” July 31, 2019.

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The United Nations Convention against Transnational Organized Crime9 (the Convention') was
adopted by the General Assembly at its Millenium meeting on 15 November 2000. The General
Assembly also adopted two important Protocols: The Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime ('Protocol I') and the Protocol against the
Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention
against Transnational Organized Crime ('Protocol II'). These Protocols will supplement the
Convention. A state must be a party to the Convention if it wants to be a party to one or both of
the Protocols. The Protocols shall be interpreted together with the Convention, taking into
account the purpose of the specific Protocol.

The Convention establishes four specific crimes (participation in organised criminal groups,
Art.5, money-laundering, Art.6, corruption, Art.8, and obstruction of justice, Art. 23) to combat
areas of criminality which are commonly used in support of transnational organised crime
activities. The Protocols then establish additional crimes which deal with their basic subject-
matter (e.g. trafficking in persons, smuggling of migrants, smuggling or illicit manufacture of
firearms).

In most States, these will be punishable by four years or more and will therefore fall within the
Convention as "serious crimes". The Protocols also establish more minor offences (e.g.,
falsification of travel documents, defacement of firearm serial numbers) which support their
basic policy goals. The Convention only applies to these offences where the Protocol so
specifies. Countries which ratify the instruments are required to enact legislation making these
activities domestic offences if such laws do not already exist.

The adoption of the Convention and the conference in Palermo are indeed very important
developments in international criminal law. It was obviously no coincidence that the high level
conference was held in Palermo. This city, as the rest of the island of Sicily, has always been
associated with organized crime and mafia activities. Through hard work and prosecutorial
diligence, the tide is slowly but surely turning against the mafia in its traditional stronghold.10
9
United Nations General Assembly Doc A/55/383 http~www.odccp.org/palermo/con
vmain.html.
10
The Palermo conference opened a day after the Italian newspaper La Stampa carried a shocking report leaked
from the Palermo prosecutor's office, alleging that 329 politicians, law enforcers and businessmen were suspected of
having links with the mafia http:// europe.cnn.comn/.. .urope/12/12un.crime.o2/index.h tn.

12
However, it is quite clear that the success of national efforts to fight organized crime depends to
a large extend on the effectiveness of international co-operation.

The Convention shall apply to the prevention, investigation and prosecution of the various
offences established in the Convention as well as serious crime which is transnational in nature
and involves an organized criminal group.11 This last mentioned category of 'serious crime' is
clearly aimed at criminal conduct which is transnational in nature and involves an organized
group, but which is not covered by the specific crimes created in articles 5, 6, 8 and 23. Article
2(b) of the Convention defines a 'serious crime' as 'conduct constituting an offence punishable by
a maximum deprivation of liberty of at least four years or a more serious penalty'.

The Convention is clearly an attempt by the international community to combat international or

transnational crime. To this end the Convention shall apply to offences that are truly
transnational in nature. An offence will be regarded as transnational in the following
circumstances:

 When the offence is committed in more than one state;

 When the offence is committed in one state but a substantial part of its preparation,
planning, direction or control takes place in another state;
 When the offence is committed in one state but involves an organized criminal group that
engages in criminal activities in more than one state; or
 When the offence is committed in one state but has substantial effects in another state.

3.1.Offences-

3.1.1. Criminalization of participation in an organized criminal group-

Article 2(a) of the Convention defines an 'organized criminal group' as a structured group of
three or more persons, existing for a period of time and acting in concert with the aim of
committing one or more serious crimes or offences established in accordance with the
Convention, in order to obtain, directly or indirectly, a financial or other material benefit. This
has to be read together with article 2(b), which defines a 'serious crime' as conduct constituting

11
Article 3(1) of the Convention.

13
an offence punishable by a maximum deprivation of liberty of at least four years or a more
serious penalty.

The Convention's definition is very much in line with the Council of Europe's definition. The
Council has adopted a Joint action on making it a criminal offence to participate in a criminal
organization in the Member States of the European Union. Both the European Council's and the
Convention's definition refer to a general definition based on a proportionality test (that is
serious offences, punishable with imprisonment of 4 years or more) and a more detailed test with
reference to a list of offences.12 Intention (dolus) is required for the crime of participation in an
organized group.13

3.1.2. Criminalization of the laundering of proceeds of crime-

The laundering of the proceeds of crime (perhaps better known as 'money laundering') has the
purpose of disguising the source of property derived from the predicate criminal activity, for
example drug trafficking.14

The provisions of the Convention criminalizing money laundering is clearly based on the
provisions of the 1988 United Nations Drug Convention. However, under the 1988 Convention
the crime of money laundering is restricted to laundering proceeds of drug offences. It is of
course difficult to find a legal definition that is, in the words of Bassiouni, 'both concise and
exhaustive'.

Article 6 further instructs States Parties how to implement and apply the criminalization of
money laundering. Each state party must include as predicate offences all serious crime as well
as participation in an organized criminal group, corruption, and obstruction of justice. In the case
of States Parties whose national legislation sets out a list of specific predicate offences, such a
list must, at a minimum, include a comprehensive range of offences associated with organized
criminal groups.

3.1.3. Criminalization of corruption-

12
in the case of the Convention it will be 'participation in an organized criminal group' (article 5), 'laundering of
proceeds of crime' (article 6), 'corruption' (article 8), and 'obstruction of justice' (article 23). See also Van den
Wyngaert op cit (n 19) at 154.
13
Article 5(1) of the Convention.
14
MC Bassiouni International Criminal Law 2ed Vol 1 (1999) 933.

14
One of the crimes that is typical of organized crime, is corruption. However, the definition of
corruption is very problematic, especially from an international criminal law point of view.
Many domestic definitions restrict corruption to bribery of their own public officials, thus
excluding bribery 'in general' or bribery of foreign public officials or of public officials of
international organisations such as the United Nations.

Article 8(1) of the Convention provides for the bribing of public officials (and not foreign public
officials or international civil servants). There is recognition of the need for a more progressive
and comprehensive definition of corruption though. Article 8(2) provides that each State Party
'shall consider adopting such legislative and other measures as may be necessary to establish as
criminal offences conduct referred to in paragraph 1 [of article 8] involving a foreign public
official or international civil servant. Likewise, each State Party shall consider establishing as
criminal offences other forms of corruption.'

This article is aimed at criminalizing both active and passive corruption. In other words, both the
offering and the acceptance of a bribe will fall under the provisions of article 8. In this sense the
Convention is wider than other international instruments. For example, the Convention on
Combating Bribery of Foreign Public Officials in International Business Transactions15 punishes
corruption of foreign public officials but limits the offence to active corruption.

3.1.4. Criminalization of obstruction of justice-

One of the prominent features of organised crime is, quite logically, the frustration of the
application of traditional principles and means of criminal justice. Some of the well-known
manifestations are inter alia the division of labour and dilution of individual responsibility within
the organisation, interchangeability of individuals, secrecy, a mixture of legitimate and illegal
activities and also the capacity to neutralise law enforcement (eg by intimidation or corruption).

In order to address this, article 23 of the Convention instructs each State Patty to adopt such
legislative and other measures as may be necessary to establish as criminal offences the various
manifestations of obstruction of justice. Article 23 provides for the following core offences:

15
Adopted by the Organization for Economic Co-operation and Development on 17 December
1997 http://www.oecd.org/daf/cmis/bribery/2Onovie.htm.

15
  The use of physical force, threats or intimidation or the promise, offering or giving of an
undue advantage to induce false testimony or to interfere in the giving of testimony or the
production of evidence in a proceeding in relation to the commission of offences covered
by the Convention.16
 The use of physical force, threats or intimidation to interfere with the exercise of official
duties by a justice or law enforcement official in relation to the commission of of.fences
covered by the Convention17

Milton defines the crime as follows: 'Defeating or obstructing the course of justice consists in
unlawfully doing an act which is intended to defeat or obstruct and which does defeat or obstruct
the due administration of justice'.18

The term 'proceeding' in article 23(a) of the Convention is intended to cover official
governmental proceedings. The question is whether 'official governmental proceedings' are also
referring to proceedings not strictly judicial in nature. The texts of the Convention and the
travaux preparatoires(preparatory works) are not clear in this regard.

Although the travaux preparatoires refer to 'all governmental proceedings', it is submitted that
this should be no more than proceedings that are in fact aimed at the establishment of criminal
liability for one or more of the offences, in other words, a criminal trial. These proceedings may
include the pre-trial stage of a case.19 Thus, it is submitted that the detection, apprehension and
charging of offenders should form part of what is understood to be 'official governmental
proceedings' for purposes of article 23.

4. Transnational Organized crime under branches of International Law

4.1.International Criminal Law-

16
Article 23(a) of the Convention.
17
Article 23(b) of the convention
18
j Milton South African Criminal Law and Procedure Volume II Common Law Crimes 3ed 1996) 102. See also J
Burchell and J Milton op cit (n 41) 688 and CR Snyman Strafreg 4ed (1999) 342.
19
See the travauxpr6paratoires UN doc A/55/383/Add.1 par 46.

16
some crimes that had formerly been considered as independent transnational offences, namely
apartheid , an attack against UN personnel , and torture , have been reorganised during the
process of negotiation starting with the ILC works and ending with the Rome Statute into
elements of two of the core crimes" Apartheid now shapes one element of the actus reus of a
crime against humanity according to Article 7(l)(j) of the Rome Statute (ICCSt), attacks against
UN personnel were included in the possibility of committing a war crime under Article 8(2)(b)
(iii) and (e)(iii) ICCSt, and torture constitutes either a variant of a crime against humanity under
Article 7(l)(f), or a war crime under Article 8(2)(a)(ii).20

Owing to the fact that these formerly independent kinds of deviance had been considered as
genuine crimeswe have to assert that the Rome Conference simply did not acknowledge them as
further core crimes having the same value as genocide, crimes against humanity, war crimes, or
aggression.

Despite a notion holding that it is already possible to try offenders for transnational organised
crime before the ICC, the lex lata brings us down to the fact that only in special cases
transnational offences show such heinous misconduct that they may even ht the definition of a
core crime. A current example is violent trafficking in women including rape: this can be proved
to be a crime against humanity as long as all the other requirements of Article 7(l)(g) ICCSt are
met.21

On the face of it, as with terrorism, organised criminal or gang conduct does not usually amount
to the crime of genocide under Article 6 ICCSt by itself, unless the conduct is undertaken with
the specific ( genocidal ) intent to destroy, in whole or in part, a national, ethnical, racial or
religious group . It is this intent which makes genocide an international crime . To be proved,
this intent must manifest several elements:

1. Quantity: the perpetrator must intend to destroy a considerable number of members of the
group; however, as his intent to destroy . . . will always be limited by the opportunity presented
to him , [i]t is not necessary to intend to achieve the complete annihilation of a group from
every corner of the globe ."

20
International Law and Transnational Organised Crime, Pierre Hauck and Sven Peterke, Oxford University Press
21
ibid

17
2. Quality: it is sufficient to intend to destroy not the whole group but a substantial part of it,
most notably its leadership. But regardless of this restriction, the intent ultimately has to entail
consequences for the group as such.

3. Finally, breaking down the targeted group to parts of a group is highly questionable. The
International Criminal Tribunal for the former Yugoslavia (ICTY) did just that within its
jurisdiction and thus considerably broadened the scope of the crime. It is clear, though, that the
perpetrator s intent must always be directed against a group as such, within which individuals
may be targeted because of their membership of that group.

Only when these requirements are met can organised crime indeed result in genocide: for
instance when criminal collectives engaging in illicit trafficking activities in remote places like
the Amazon rain forest may deliberately expel or eliminate groups such as indigenous peoples
defending their territory against the intruders.

Crimes against Humanity-

Under Article 7(1) ICCSt, in order to constitute a crime against humanity certain acts [must be]
committed as part of a widespread or systematic attack directed against any civilian population .
The acts listed include several crimes typically also committed by representatives of organised
crime: murder, extermination, enslavement, deprivation of physical liberty, torture, rape, etc.
Interestingly, in the light of the international fight against human trafficking, the term
enslavement is defined by the Rome Statute as the exercise of any or all of the powers attaching
to the right of ownership over a person and includes the exercise of such power in the course of
trafficking in persons, in particular women and children.22

War crimes-

Basically, war crimes are breaches of the laws and customs of war within an international armed
conflict,. Article 8(1) and (2) ICCSt. Under Article 8(2)(f) of the Rome Statute, however, other
serious violations of the laws and customs applicable to armed conflicts constitute war crimes.
These are not of an international character, but are committed in the territory of a state while
there is protracted armed conflict between governmental authorities and organised armed groups,

22
ibid

18
or between such groups. What is required for a group to be considered party to an armed conflict
has been discussed earlier.

Aggression-

After the Kampala Conference in 2009, the necessary act of aggression within the concept of this
crime must always feature the use of armed force by a state againstanother state. Therefore,
organised crime can only amount to aggression when a valid state representative is acting as the
perpetrator. This is only the case 1n exceptional circumstances.23

But, as with every core crime, states might also utilize organised groups to commit such crimes.
This is a question of attribution, the attribution to states of crimes committed by organised
private individuals, a notorious interface between organised crime and state crime.

4.2. International humanitarian law-

Also known as the law of armed conflict, aims to mitigate human suffering in times of war.1 It
consists of principles and rules spe~ cifically designed to protect persons who do not or who no
longer directly partici~ pate in the hostilities, above all, the civil population and fighters, i.e.
those who are wounded, shipwrecked, sick, or detained (hors de combat). In addition, IHL
unfolds its humanizing effects through prohibiting and restricting certain methods and means of
warfare.

Despite all the hype over Transnational Organised Crime, it is a disturbing reality in the
beginning of the twenty first century that criminal groups not only try to profit financially from
armed conflicts, but take up arms against the state or rival groups if such interfere in their il~ licit
businesses such as arms, drugs, or human trafiicking. On occasion they are also contracted by
parties to an armed conflict or create paramilitary units themselves. Such armed violence has
become astoundingly professional, causing death and destruction that, in extreme cases, is
statistically on an equal footing with international armed conflicts (IAC). Thus, it is of great
importance to consider whether such hybrid groups could become parties to an armed conflict
and what the consequences are should they qualify as an organised armed group under IHL.

23
ibid

19
Article 2(a) UNTOC defines the term as a structured group of three or more persons, existing for
a period of time and acting in concert with the aim of committing one or more serious crimes or
offences established in accordance with this Convention, in order to obtain, directly or indirectly,
a financial or other material benefit . Although this definition has suffered criticism for being too
vague, it might also be considered as too narrow. The term excludes politically motivated
groups, especially terrorists, whose principal activities are subjects of other international treaties.
Furthermore, insurgents and guerrilla lighters do not fall into the category of organised criminal
groups. The same is true for mercenaries and private military and security corporations.24

They might beinspired by the prospect of making profits, yet it cannot be said that they always
do so by committing serious crimes. Of course the reality is often more complex. As social
phenomena, such groups undergo permanent processes of transformation in both their motivation
and organisation. It therefore could be said that the UNTOC encourages a micro-perspective that
obfuscates the embeddedness of TOC in today s conflicts. If ties develop between organised
crime groups and public authorities such constellations are generally appreciated by international
lawyers from a state responsibility perspective. However, as will be set out later in this chapter,
the standards of attribution are quite demanding. Thus it is unlikely that such a responsibility can
be established in practice.

On the other hand, international law prohibits the use of force in international relations and treats
the crime of aggression, together with genocide, war crimes and crimes against humanity, as
macro-criminality that entails direct individual responsibility.8 Accordingly, states have agreed
upon a partial criminalization of war and its conduct. How far this will in fact deter the world s
most powerful white-collar criminals from resorting to the most uncivilized means remains to
be seen.

IHL does not legitimize armed conflicts at all; it merely seeks to establish limits for warfare to
avoid unnecessary human suffering. Nevertheless, it legalizes a series of acts of violence that are
prohibited under normal circumstances , i.e. in peace time. In other words, states have
recognized privileges for themselves that are not always justified by purely humanitarian needs.
Thus they have a vested interest that non-state actors should rarely benefit from these privileges.

24
ibid

20
A clear example to this kind of situation is the conflict between the state of Columbia and its
gureilla rebels trying to overthrow the government.

4.3.Internatonal Human Rights-

There are two clear intersections between TCOs crimes and human rights. The lirst is in the
crimes them« selves: when the criminal act takes place it will impact on a right of the victim; for
example, the trafficking of a person would engage with Article 9 of the International Covenant
on Civil and Political Rights (ICCPR), which recognizes the right of each individual to liberty
and security.

The second intersection would be at the prosecu tion stage, when the perpetrator of the crime
faces a court: regardless of how heinous the offence might be, under Article 14 of the ICCPR a
fair trial should follow.

On a simple level, there is little difference between crimes and infringements of 'human rights .
In both regards a harm or injury is recognized and whether it is labelled a criminal offence or a
human rights violation is secondary to the recognition itself. 'Ihe way in which the harm or injury
is classified becomes much more pertinent when considering how to respond to it. Should
criminal justice prevail, so also do procedural frameworks, legal definitions, and a clearly
delineated impartial court identifying an individual or organisation responsible, locating an
appropriate punishment.25

Alternatively, should a human rights violation be found, a more political, systematic response is
made within a discursive report or decision. In a victim-centred approach, how you categorize
can make little difference as long as the harm ends, responsibility is apportioned, and (perhaps)
compensation occurs. There may be a normative aspecttoo: once this historic harm is recognized,
prevention of future harms might ensue through deterrence and/or informed reform of policy or
law, and both a criminal jus~ tic: process and a human rights adjudication could achieve this.

5. International Criminal Court Developments

The current system's inadequacies in investigating, prosecuting and convicting transnational

organized crime are apparent and longstanding. Every year, too many people exploit to their best
25
ibid

21
advantage the discrepancies between different criminal justice systems and the loopholes of
international criminal law, resulting in too many perpetrators escaping prosecution, too many
victims being abused or killed by transnational criminal organizations and too much profit being
made by global criminal networks. Crime pays' as long as nations fail to cooperate in law
enforcement and judicial proceedings more closely.

Nations will continue to lose their' war on crime' unless they use international prosecution
weapons. Transnational organized crime is a problem that needs to be resolved; the newly
established International Criminal Court is a problem-needed solution. The establishment of the
International Criminal Court has created an opportunity to overcome many of the past
shortcomings. It offers a new forum for prosecuting cases that would not be dealt with otherwise.
It provides a more reliable tool for prosecuting seemingly inaccessible and uncontrollable mafia
bosses and drug cartels, as it is less vulnerable to criminal gangs ' intimidation and corruption.
Perhaps it offers a step towards a global criminal justice system in which those engaged in
transnational organized crime do not have a safe haven.26

While the treaties on transnational organized crime, drug trafficking, smuggling of migrants,
trafficking in persons, arms smuggling, and so on have created a system for signatories to deal
with alleged perpetrators by either prosecuting or extraditing them, perhaps the biggest failure of
the existing regime is that it leaves the enforcement, prosecution and punishment of individual
offenses to natio Countries represented at the Rome Conference agreed to limit the ICC's
jurisdiction to what is considered to be the most serious international crimes of concern.

“Article 5 of the ICC Staulte now gives jurisdiction to the ICC concerning aggression, crimes
against humanity, genocide and war crimes. As will be discussed in the near future,3 there was
consensus that only those four crimes are well-established under customary international law and
that the ICC Statute seeks only to consolidate established rules of customary international
criminal law rather than codify other international law principles. Unlike some earlier definitions
of crimes against humanity, the attack pursuant to Article 7 of the ICC Statute' does not
constitute a military attack.' To this end, the ICC Staute consolidates rules that do not require a

26
Andreas Schloenhardt, Transnational Organised Crime and the International Criminal Court Developments and
Debates, 24 U. Queensland L.J. 93 (2005)

22
nexus to armed conflict as a necessary component of crimes against humanity under customary
international law.”

By contrast, the ICTY deals only with crimes committed during armed conflict against
humanity. Therefore, it is possible for non-combatants to commit crimes against humanity during
peacetime, allowing the prosecution of persons who commit the offense as part of a criminal
operation. In addition to the elements of crimes against humanity, the prosecution must also
establish proof of a specific act that was part of the widespread or systematic attack on a civilian
population for a conviction under Article 7 of the ICC Statute. Article 7(1)(a)-k) lists eleven
specific acts, ranging from murder to crimes such as rape, apartheid, torture and' other similar
inhumane acts.' This list of acts contains a substantial number of offenses closely related to
human trafficking, namely enslavement, rape, sexual slavery, enforced prostitution, and other
forms of comparable gravity sexual violence.27

Instead of interpreting the ICC's existing mandate, transnational organized crime cases could also
be brought within the Court's jurisdiction by simply adding additional crimes to the ICC Statute.
Indeed, it was a court's proposal to prosecute drug trafficking that led to the ICC being
established.28

“In 1989, Trinidad and Tobago — frustrated by the inability to investigate international rings of
drug trafficking, the lack of capacity of smaller states to prosecute offenders and the obstacles to
cross-border law enforcement and judicial cooperation— proposed to the United Nations the
establishment of an international tribunal with jurisdiction over such offenses, recognizing the
link established between I During the ILC's drafting of a Code of Crimes Against Peace and
Humanity, the Commission briefly considered whether' wilful and serious environmental
damage' could amount to a crime of the same seriousness as other offenses covered by the draft
Code.”

“The 1991 Draft Code of Crimes Against the Peace and Security of Humanity in Article 26
contained an offense of' wilfully causing or ordering the causing of widespread, long-term and
severe damage to the natural environment.' The general consensus appeared to be that

27
Andreas Schloenhardt, Transnational Organised Crime and the International Criminal Court Developments and
Debates, 24 U. Queensland L.J. 93 (2005)
28
ibid

23
particularly heinous and orchestrated environmental offenses could in fact be considered as cases
of aggression, crimes again. No proposal was made to include such offenses in the 1996 draft
Code of Crimes Against Peace and Mankind or the ICC Statute.”29

One of the crimes considered at the Rome Conference was trafficking in small arms. Like drug
trafficking, it also has far-reaching impacts and dire consequences, particularly on smaller
countries. This may explain why this offense has been proposed orally by the Madagascan
delegation. The dumping of nuclear waste in foreign countries was also considered by
Madagascar as an international crime for which the ICC should have jurisdiction.

Furthermore, money laundering was regarded by some as a crime worth including in the ICC
Statute; at the Rome Conference, Nigeria expressed this view orally. Nevertheless, the Rome
Conference did not seriously discuss any of these offenses for inclusion in the ICC Statute, and a
Review Conference also did not mention them for possible consideration. Only very slowly do
countries come to understand that they need to cooperate more closely and build mutual trust at
bilateral and multilateral levels to prevent impunity for transnational crime. With increasing
levels of transnational organized crime on the one hand, and success stories of arresting key
criminal leaders on the other, some countries have begun to recognize that international criminal
law is a valuable complement to and worth supporting domestic enforcement efforts. 30

As the example of the Caribbean nations has shown, if smaller nations want to investigate traces
of transnational organized crime and prosecute offenders, they depend largely on the cooperation
of the larger powers. Thus, these states would receive enormous practical assistance from an
international criminal court. It would also have a symbolic value; it'd show that nobody is above
the law. It would serve as stabilizing benchmarks to undermine national criminal justice systems.

6.Transnational Organized Crime and failing states

It is believed that failed states and failing states are a hotbed for all sorts of TOC. This appears to
be the prevailing perspective in political and legal literature in relation to states such as Somalia,
Chad, Zimbabwe, Sierra Leone, Ivory Coast, Malawi, Eritrea, Yemen, Bangladesh, and Nepal.
This view may be justified for all of these states. However, the position in some Latin American
29
Andreas Schloenhardt, Transnational Organised Crime and the International Criminal Court Developments and
Debates, 24 U. Queensland L.J. 93 (2005)
30
ibid

24
countries, which are often found on the list of failed or failing states, is very different. This is
specifically true for some of the drug-transit countries, in particular Mexico. The economic
success of transnational organised crime syndicates involved in illicit trade in drugs, weapons,
cigarettes, and human beings depends on well-organised logistics and infrastructure for the
transnational transport of such goods.

These syndicates use modern communication facilities. effectively recruit foot soldiers, and
operate in a highly developed economic and political environment. Systematic corruption is a
successful investment. It is interesting to note that Mexico has one of the most developed and
modern traffic networks in the world. Mexico is also well connected to all its neighbouring
countries,which makes it attractive for efficient drug trafficking. The job opportunities for drug
dealers, killers, and people with military experience appear to be inexhaustible in Mexico and the
neighbouring Latin American countries. 31

Well-organised and efficiently run state institutions, where the law is properly enforced by
independent courts and the criminal justice system is supported by an untainted police force, are
the greatest anathema of organised crime cartels. Thus, it comes as no surprise that part of the
strategy of organised crime is to target these institutions. In such an environment it is not the
situation that a state has failed or is failing that attracts organised crime. It is the other way
round: the organised crime approach of undermining state institutions has a corrosive effect. The
influence of organised crime is certainly not the only factor that causes states to fail. Yet, it is a
dominant factor in why even states that are highly developed in a political and economic sense
are not immune to being side-tracked on to the slippery slope of failure.

7. Conclusion

Transnational organized crime not only reflects the generalized deterioration and reorganization
of government authority at the end of the millennium. In addition, it directly strengthens this
tendency. The challenges posed by organized crime, which have been latent for years, are
showing signs of becoming a substantial danger to the political, social and economic stability of
states, especially if its enormous financial power is taken into account. This latest stage in
organized crime has run parallel to, and been favored by, the new patterns of international trade

31
International Law and Transnational Organised Crime, Pierre Hauck and Sven Peterke, Oxford University Press

25
and progress made in communications and transportation, jointly known as globalization. It is no
longer a question of traditional smuggling to avoid customs duties, as in the past, but of
establishing organizations with information and a presence throughout the world which enables
them to take substantial advantages for illegal business. Although a single monolithic criminal
organization does not exist as such, since there are sectorial and territorial divisions among the
large criminal groups, the problem is undeniably global and it could be argued that no state is
immune from it.

The penetration of the legal system and legitimate sectors of the economy by large criminal
groups negatively affects, among other pernicious consequences, the legitimacy of governments,
trust in legislative bodies and the judiciary, the autonomous development of civil society, and
general confidence in the functioning of the markets. Once 70 organized crime succeeds in
establishing a symbiotic relationship with the state in order to conserve its privileges and keep
the characteristics of the regime intact, it is very difficult to disassociate them as it would imply
substantial human and financial costs and the application of repressive measures which would
sacrifice a good part of the welfare and civil liberties.

26
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