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CRANFIELD UNIVERSITY DEFENCE ACADEMY COLLEGE OF MANAGEMENT AND TECHNOLOGY MASTER OF SCIENCE GLOBAL SECURITY THESIS

Academic Year 2009 2010 Stuart Coffey

THE CASE FOR THE CREATION OF A GLOBAL FBI

Supervisor: Keith Weston 20 August 2010

(21986 words)

This thesis is submitted in partial fulfilment of requirements for the Degree of Master of Science

Cranfield University 2010. All rights reserved. No part of this publication may be reproduced without the written permission of the copyright owner.

Abstract
In 1908, the US FBI was introduced as an extra layer of law-enforcement to deal with serious and trans-state crime on a federal basis. Global society today is in need of the same law-enforcement development as in the US in 1908; to introduce another layer of expertise and specialism to deal with transnational criminals and international terrorism to bring the rule of law, at a common standard, to the whole of global society, particularly ungoverned spaces, poorly governed areas and areas that are conducive to corruption. The strengths of the current system for international law-enforcement are hard to find. However, Interpol is politically independent; Europol is becoming more effective in sharing sovereignty over law-enforcement in the EU, and the UN Police are specialists at post-conflict reconstruction of policing. However, institutional mistrust hampers cooperation, particularly in the fight against terrorism; developed states actions to combat serious organised crime and terrorism are uncoordinated and inefficient; unilateral action lacks legitimacy internationally and suffers from having no explicit operational powers to act unilaterally, and there is no single agency with international responsibility for tackling the problem leading to a lack of leadership and ineffectual and disjointed international efforts to tackle the dual problems of international crime and terrorism. The International Criminal Court (ICC) suffers from a lack of jurisdiction over some serious organised crimes and also from the lack of an agency with the powers to refer cases to it, similar to the link between the US FBI and US Federal Courts. The growth of modern-day slavery in the form of human trafficking is evidence of the current systems impotence in dealing with serious organised crime internationally. The vision for the future is an integrated international criminal justice system that reports to the UN for oversight but is not governed by it, and includes law-enforcement, courts and detention/rehabilitation elements. This system would apply the highest standards of legal process and human rights to bring the rule of law to the world, thereby reducing the temptation for states to consider unilateral action as seen in Afghanistan at the start of the current century.

Provision for UN military forces is at the heart of the UN Charter under Article 43 but it has never been realised. Creating an international law-enforcement body instead would be more politically acceptable because enforcing the rule of law is essential to international peace and security, which is at the heart of the founding ideals of the UN. An international agency and integrated criminal justice system needs to be established to deal with serious organised crime including drug running, human trafficking and piracy. The definitional difficulties of establishing international jurisdiction can be overcome by using the European Arrest Warrant (EAW) model that ignores minor differences in definitions. Instead it allows extradition to be bypassed if the sentencing tariff is over a certain threshold in the warrant-issuing nation. However, the greatest difficulty will be in finding the right politician with the charisma and leadership necessary to drive the change agenda before the problem becomes too established to deal with. Where is the Woodrow Wilson, Franklyn Roosevelt or Winston Churchill of this generation? The vision for the future is a big step which cannot be achieved in a single change. Therefore, further research is needed on how small changes can combine to bring the great vision to fruition in the long term. In this time of austerity, research on the costsavings possible by coordinating transnational law-enforcement activity is also necessary to garner broad political support for the overall vision. It is time to put national chauvinism aside and work together to implement a truly transnational system to deal with a truly transnational problem.

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Acknowledgements
Many people have contributed to this dissertation. Indeed, in terms of writing a dissertation, an iceberg analogy is particularly apposite; the author is merely the visible element supported by the sound foundation provided below the water line by others. These foundations have been invaluable in the writing of this dissertation. The largest part of the iceberg belongs to the characters involved in the Global Security course at Cranfield University. The course itself was very effectively delivered and organised. However, it was the character of the classmates and academic staff that made the effort to complete the program an enjoyable and satisfying experience, while hopefully encouraging the completion of a comprehensive and thought-provoking dissertation that contributes to a thoroughly modern debate. In particular I would like to thank Prof. Chris Bellamy. As the academic director of the course he managed to keep us all on the yellow brick road en-route to his castle, the Wizards palace of global security enlightenment! As a supervisor to my dissertation, Mr. Keith Weston, a retired Chief Superintendent from the Metropolitan Police, gave me invaluable direction on how best to assure credibility among law-enforcement practitioners while keeping me grounded and working. As a second supervisor, Mr. David Turns helped me to formulate legal arguments and was able to point me in the right direction for research purposes so that the dissertation was adequately supported. Dr. Peter Caddick-Adams and Prof. Richard Holmes often left me thinking about their lectures long after they had been given and resurrected a passion for history that long ago faded. Thanks are also due to Mr. Tom Maley and Dr. Stevyn Gibson for their meticulous feedback that has, hopefully, helped to foster an eye for detail. And lastly, but certainly not least, to Anne Harbour for looking after us all, and being the welcoming and happy face of the support system that gave me perspective when the pressure was on. Particular thanks go to my interviewees for helping me to see the wood for the trees in terms of international law-enforcement from b oth a political and a practitioners perspectives. They are, in no particular order, Sir David Veness, Dr. Laura Cleary, Patrick Spencer, Tony Collings OBE, Ken Littlewood, Peter Clarke, Jonno, Janet Smith and Bill Newton-Dunn. iii

If conferences, books, libraries and lecture halls provide the scholar with the gently accumulating snow that has the potential to form the iceberg, then the personal relationships and interactions ensure that the snow reaches its full potential and becomes the iceberg. Without the friendship of my classmates, the course would have been all the poorer and I would have profited considerably less from it. Their enthusiasm was infectious, their insights invariably enlightening and I will treasure the resultant strong friendships that have been forged.

Whilst the characters at Cranfield have helped produce the mass of the academic iceberg that is my personal learning, the constant support of my wife, Lisa, and my three children has ensured that the journey of the iceberg has avoided any catastrophic collisions with trans-Atlantic liners. Their support has helped to ensure that the journey has taken on the feel of a luxury liner, where there is much to do but the task is enjoyable and satisfying rather than to be dreaded. I dedicate this dissertation to them.

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Table of Contents
Abstract Acknowledgements Table of Contents List of Figures List of Acronyms 1 Introduction 1.1 Reasons for Undertaking the Study 1.2 Hypothesis 1.3 Aim 1.4 Objectives 1.5 Research Methodology 1.6 Structure 1.7 Literary Review 2 Why is a Global FBI Required? 2.1 Transnational Threats to International Security 2.2 Transnational Organised Crime and the Undermining of State Authority 2.3 Human Trafficking 2.4 The Politics of National Policing of Human Traffickers 2.5 International Drugs Trade 2.6 International Terrorism 2.7 Globalization and International Travel 2.8 The Media as an Enabling Factor 2.9 Piracy 2.10 Ungoverned Space and Corruption 2.11 Parallel with the US Federal Bureau of Investigation (FBI) 2.12 Parallels with the Development of Law-enforcement in the UK 9 10 11 13 14 16 17 18 18 21 23 24 1 2 2 3 3 4 6 i iii v viii ix

Strengths and Weaknesses of the Current International Law-enforcement Environment 3.1 Collective Action against Transnational Threats 3.1.1 UN Police 3.1.2 Other UN Efforts 3.1.3 Europol 3.1.4 Interpol 3.1.5 Eurojust 3.2 National Responses to Transnational Issues 3.3 Intelligence Sharing 3.4 Confidential Information and the Anglo-Saxon Five-Eyes System 28 28 29 29 31 32 33 35 35

The International Legal Perspective 4.1 A Brief Legal History 4.2 International Legal Structure 1899 1945 4.3 The League of Nations and the United Nations 4.4 Founding Principles of the United Nations 4.5 Chapter VII and Article 43 4.6 International War Crimes Tribunals 4.7 Erosion of the Sovereignty Principle 4.8 General Principles of Criminal Law 4.8.1 Drazen Erdemovic 4.8.2 Radovan Karadzic 4.8.3 Ratko Mladic 4.9 The ICC 4.10 ICC Jurisdiction 4.11 Inclusion of Terrorism and Drug Crimes in the Rome Statute 40 41 41 41 42 43 44 45 46 47 48 48 49 53

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Prospects for the Development of the International System of LawEnforcement 5.1 Long Term Perspective 5.2 The Ideal Vision 5.3 Expansion of the Role of Existing International Organizations 5.3.1 Interpol 5.3.2 UN Police 5.3.3 ICC 5.3.4 Europol and Eurojust 5.3.5 US FBI 5.4 A Radical Solution? 5.5 Leadership 5.6 Events that Create Political Conditions Conducive to Change 5.7 Big Bang or Piecemeal? 5.8 Countering Mistrust 56 58 60 60 61 61 62 63 63 64 65 66 67

Conclusion and Recommendations for Further Research 6.1 Why is a Global FBI Required? 6.2 Strengths and Weaknesses of Existing Structures 6.3 The International Legal Environment 6.4 Prospects for Future Development 6.5 Recommendations for Future Research 6.6 Concluding Remarks Bibliography 69 71 72 73 75 76 78

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List of Figures
Figure 2.1 Global Regimes by Type Figure 2.2 Famous Organised Criminal Groups Figure 2.3 World Diagram of Human Trafficking: Source and Destination Countries Figure 2.4 Cartel Territories and Drug Routes in and through Mexico Figure 2.5. Picture of the Taj Mahal Hotel in Mumbai after the terrorist attack in 2008 Figure 2.6. Picture of the attack on the twin towers of New York in 2001 Figure 3.1 Picture of the UN Crest Figure 3.2 Europols Crest Figure 3.3 Interpols Crest Figure 3.4 Eurojusts Crest Figure 3.5 Picture of the UK National Security Strategy Document Figure 4.1 Europe as it stood after the 1648 Treaty of Westphalia Figure 4.2 Chart showing Development of Active UN Peacekeeping Operations, 1948 2006 Figure 4.3 Picture of Drazen Erdemovic at the ICTY Figure 4.4 Picture of Radovan Karadzic at the ICTY Figure 4.5 Picture of Ratko Mladic Figure 4.6 Current Challenges causing a Bottleneck to Progress, and Barrier to Action against Transnational Threats by the ICC. Figure 4.7 Graphic showing necessary interrelationship of global lawenforcement and associated international court for effectiveness. Figure 5.1 Ideal international criminal justice arrangements for the PICJS. 9 10

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16 16 28 29 31 32 35 41

46 47 48 49

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List of Acronyms
CT EAW EC EIS EU FBI GDP ICC ICJ ICTR ICTY ILC JIT LoN MEP MSC NATO PCA PCIJ PICJS PIFWC R2P SAS SCSL SOCA UN UNCTTF UNGA UNODC UNSC USSR Counter Terror (ism) European Arrest Warrant European Commission European Information System European Union Federal Bureau of Investigation Gross Domestic Product ICC International Court of Justice International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia International Law Commission Joint Investigation Team League of Nations Member of the European Parliament Military Staff Committee North Atlantic Treaty Organization Permanent Court of Arbitration Permanent Court of International Justice Proposed International Criminal Justice System Persons Indicted for War Crimes R2P Special Air Service Special Court for Sierra Leone [UKs] Serious and Organised Crime Agency United Nations United Nations Counter Terrorism Task Force United Nations General Assembly United Nations Office on Drugs and Crime United Nations Security Council Union of Soviet Socialist Republics

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Chapter One: Introduction


1.1 Reasons for Undertaking the Study

Since the end of the Cold War, the greatest threats to international peace and security have come from transnational actors rather than nation states: organized crime has prospered in the states of the former USSR; the boundaries of the EU have pushed further East and have become more porous; access to international travel has become easier and cheaper and the human slave trade has returned with a vengeance, in the form of human trafficking, some 200 years since its abolition. Since 11 September 2001 there has been a move to redress the security balance but serious transnational crime, international terrorism, and the nexus that exists between them, remain the most compelling issues occupying national security agencies and intergovernmental bodies in 2010. Todays international law-enforcement system is disjointed, fractious, ineffective and, increasingly, is unfit to tackle the serious emerging threats of transnational organised crime and terrorism. Since the UN became a reality at the end of the last World War, the threat of inter-state war has receded. The growing interdependence of states through the forces of globalization, modernization, lax international borders and ease of access to international travel, has simultaneously reduced the threat of war instigated by nation states, and exacerbated threats from transnational actors. It seems that the international system for dealing with transnational crime and terrorism since 1945 has developed in a political vacuum rather than by design. It is like the far corner of the garden that has been left to grow wild berries because it can produce fruit with little effort. At first the thorns, representing international police, are effective in protecting the fruit that is global society. However, as time goes by, the weeds in the neglected area colonise the neglected ground and exploit the neglected spaces between the thorns and bushes. The weeds, representing transnational criminals and terrorists, then proceed to choke the bush so that the thorns of international policing are overcome and become impotent to safeguard the fruit. This is the position the international system for dealing with transnational crime is in: transnational actors have become such a problem that it will take a concerted effort by the international community to restore that part of the international garden to bearing fruit at a price the global society is willing to pay. Currently, each national agency leaves the task to its neighbours, allowing the weeds to prosper by default. 1

However, it must be recognised that this dissertation seeks to articulate an ideal solution that is far removed from the international system and arrangements that exist today. Achieving this end will inevitably be a long-term goal. Therefore, this dissertation should be considered as a starter for ten, an instigator of further work to bring coordination and effectiveness to international and transnational policing over the next 50 years. Her Majesty, Queen Elizabeth II suggested an appropriate long term perspective in a recent speech to the UNGA on 6th July 2010: When people in 53 years from now, look back on us, they will doubtless view many of our practices as old-fashioned. This sentiment matches precisely the aim of this dissertation; analyse how the current system operates, examine how an ideal solution might be structured, and to suggest ways in which the current old-fashioned practices can be reformed in the first half of the twenty-first century to meet the prevalent modern threats to peace and prosperity. 1.2 Hypothesis

The central hypothesis of this dissertation is that current global law-enforcement arrangements are not fit for purpose. As the threat of inter-state war has receded, in part due to the growth in globalization and international inter-dependency, the major threats to security have become transnational in nature. However, these transnational threats are addressed by the international system in a haphazard, disjointed and inefficient fashion by a plethora of national and international agencies working largely in isolation. To combat the truly transnational threats of serious organised crime, terrorism and piracy, the international community must resolve to empower the UN to adapt Article 43 of the UN Charter to institute a transnational police agency that will support the rule of law worldwide to a common, agreed set of standards. Therefore, this dissertation will seek to support the hypothesis that current global law-enforcement arrangements are no longer fit for purpose, and that the time is right for the UN to develop to fill the global law-enforcement capability gap. 1.3 Aim

The aim of this dissertation is to change the focus of research, and to progress from developing individual elements of the international law-enforcement environment in isolation, to developing an integrated international criminal justice system that effectively combats transnational criminals and terrorists. 2

1.4

Objectives

In order to evaluate the stated hypothesis, this dissertation will: Establish the pertinent elements of the development of the modern international system through history. Show that the modern international system has evolved to challenge the primacy of the sovereignty principle, thereby proving that further evolution is possible despite the existence of that principle. Identify critical omissions in current international law-enforcement that would be addressed by a transnational police force. Analyse how transnational threats have developed in recent years and how these threats may further evolve in the future. Assess critically the ability of distinct international groupings to co-ordinate CT activity, and to share sensitive information, in support of collaborative CT action. Articulate the robust and complementary international policing, judicial and detention systems that would be necessary to support a supranational lawenforcement agency. 1.5 Research Methodology

Most of the extant research relating to transnational policing has been conducted without significant input from practitioners. In completing this study, the author has attempted to redress this imbalance by canvassing the opinions of practitioners from the UKs SOCA, and military personnel involved in CT operations. Additionally, to address the political aspects of the question, interviews have been conducted with Bill Newton-Dunn, the UKs longest standing MEP, who has a special interest in European Policing: he has written a dissertation of his own on the creation of a European FBI. Also, Sir David Veness provided a global political perspective, drawing on his wide range of experience as a former Assistant Commissioner, Specialist Operations of the Metropolitan Police, fully involved in CT operations, and as the first Under Secretary General of the UN with responsibility for Safety and Security, a role he assumed in 2005.

There is a wealth of academic literature concerning terrorism but there is much less on the development of transnational policing. There is a growing interest in affording operational powers to a regional FBI in Europe, but not globally and certainly nothing that seeks to bring the rule of law to ungoverned spaces that present a clear and present danger to the international community. Indeed, there is no literature at all concerning the proposal in this dissertation, that Chapter VII of the UN Charter be used to justify the creation of a co-ordinated international criminal justice system. This proposal in particular seems to be new. Interviews have been important to ensure that the thesis is grounded in reality whilst maintaining an eye on the ideological objective. Hence, whilst a wide range of primary and secondary sources have been used, an element of blue-sky thinking was inevitably used to spark debate and challenge preconceptions, and this is reflected in the chapter addressing options for the future. 1.6 Structure

This dissertation critically assesses how transnational threats such as serious organised crime, terrorism and piracy are currently addressed by global, regional and national law-enforcement agencies. It considers the development of the international system and suggests how it may evolve to meet these threats. As with all political changes, there is an element of organizational re-modelling required; this dissertation aims to identify how this can occur and indicate what the new arrangements might look like. Chapter two seeks to establish why a Global FBI is needed. It examines the financial strength of transnational organised criminal groups and their ability to undermine state authority to varying degrees. It also tracks the re-emergence of modern day slavery in the form of international and intercontinental human trafficking, before moving on to examine the international drugs trade detail. The expansion of terrorism as an international phenomenon is analysed before globalization, interdependence, international travel and the Media are analysed as contributory factors to the increasing threat from transnational actors of all types. The specific problems of ungoverned spaces and piracy are expanded upon before concluding the chapter with an examination of the parallels that exist, in terms of what this dissertation asserts is needed to develop law-enforcement internationally, with how UK and US lawenforcement has developed since the early nineteenth century. Whilst ungoverned 4

space is considered as part of this dissertation, this relates to geographic ungoverned space only: cyber-crime, which is widely considered to be the largest, poorly governed or ungoverned space, is specifically omitted from the study as it merits a full study in its own right. Chapter three examines the strengths and weaknesses of current transnational policing arrangements in the international system. The UN Police, other UN departments such as the UNODC, Europol, Interpol, Eurojust and national agencies, particularly the UKs SOCA and the US FBI, are examined in terms of their effectiveness, efficiency and ability to coordinate their efforts internationally. Chapter three also examines the difficulty inherent in intelligence sharing, born out of institutional mistrust, particularly in relation to CT operations, before concluding with a specific analysis of the problems associated with the close intelligence relationship shared between the primary AngloSaxon states of the UK, US, Canada, Australia and New Zealand. Chapter four examines the international legal environment, primarily focussing on the erosion of the sovereignty principle over recent years, and what this could mean for transnational law-enforcement in future. It then moves on to examine the founding principles of the modern international system, relating them to the importance of the rule of law in maintaining global peace and security. The work and development of the various international tribunals, ranging from Nuremberg through to the ICC is analysed, paying particular attention to how domestic principles of criminal law can be used to prosecute individuals considered to have committed crimes against humanity. It concludes with an assessment of the difficulties the ICC has faced in extending its jurisdiction beyond war crimes and crimes against humanity into the realm of terrorism and drug crimes. Chapter five seeks to establish route maps for change to the existing international criminal justice system. It starts by articulating the desired end-state of a coordinated criminal justice system including the establishment of a supranational body with operational powers to investigate, pursue, arrest, prosecute and detain, before considering whether any of the existing international or national agencies or bodies could be expanded to fill the international law-enforcement capability gap. Alternatively, it further examines the international political environment and, hence, whether new structures with clearly defined remits would have a better prospect of gaining broad international political support, than extending the remit of existing structures that 5

already have their polemic supporters and detractors. It further examines how Chapter VII of the UN Charter could be used to justify the introduction of the proposed system and concludes with an assessment of the leadership the author considers would be necessary to articulate the vision, gain broad popular support and drive through the change agenda. Chapter six concentrates the research and ideas presented to answer the who, what why, when, where and how questions before proving recommendations on policy and outlining future necessary areas of research to bring the vision to fruition. 1.7 Literary Review

United Nations Reform by Spencer Zifcak, 2009. This new publication subjects six of Kofi Annans principal proposals for reform of the UN to scrutiny. It is particularly apposite to this thesis as it is based on extensive interviews with diplomats at the UN, providing a valuable insight into UN politics and practice, thereby informing the political pragmatism that would be necessary to bring about the change suggested in the dissertation. Crafting Transnational Policing by Andrew Goldsmith and James Sheptycki, 2007. Much of this book relates to practical efforts to improve cooperation in transnational policing. However, it also recognises the existence of national chauvinism that skews the political argument to one that supports national superiority, vanity, ambition, selfishness and rivalry, leading to indifference to the public good and the global commonwealth. These elements provide a supporting political and pragmatic narrative to the dissertation. Policing the World by Malcolm Anderson, 1989. Whilst this volume is some 20 years old, it recognises the need for greater cooperation between the police forces of the world in response to the transnational security threats dealt with in this dissertation. It recognises that international cooperation is a sensitive area and that the necessary imaginative thinking and political support were in short supply. This situation remains today.

Root Causes of Terrorism by Tore Bjorgo, 2005. This volume is useful in debunking some of the myths that are commonly cited as causes of terrorism and then goes on to suggest how terrorism can be tackled more successfully in future. It supports the development of better international arrangements for extending the rule of law to common standards, globally, and suggests that policing action, rather than military action, has a better prospect of success in combating international terrorism. That assertion broadly supports the hypothesis of this dissertation. The Politics of EU Police Cooperation by John Occhipinti, 2003. This book traces the evolution of police cooperation and crime fighting in the EU from 1970 until 2002. It suggests that a supranational approach to policing will develop over time to resemble that of the US FBI in due course, in response to the issues considered as part of this dissertation. It also charts the political difficulties that have been addressed in the creation of such a supranational agency which gives a useful historical record which will help in the forecasting of political difficulties in the creation of the suggested PICJS as part of this dissertation. Peacebuilding and Police Reform by Tor Tanke Holm and Espen Barth Eide, 2000. This book supports a central assertion of the dissertation that any policing reform should be integrated with reform of the entire criminal justice system of the jurisdiction in question, rather than a piecemeal agenda. It also suggests that international standards for policing and human rights need to be developed and that a focal point for this standardization is urgently required. It expressly suggests that the UN is the appropriate international body to carry out this work. Swords and Ploughshares by Paddy Ashdown, 2007. The former UN High Representative to Bosnia and Herzegovina articulates some of the political strategies used, and their effectiveness, in trying to bring international fugitives to justice, in the absence of a mechanism for external agencies to pursue them in the countries of the former Yugoslavia. This provides useful support to the dissertations assertion that a supranational agency is required to extend the rule of law everywhere, particularly in ungoverned areas or, in this case, poorly governed states. 7

Understanding Violent Radicalisation by Magnus Ranstorp, 2010. This book charts the progress of policing terrorism in Europe in recent years, particularly regarding cooperation between states. It also recognises that the erosion of human rights in the race to combat terrorism may be providing succour to the recruitment efforts of Salafi-Jihadist groups within Europe: if the international community persists in disproportionate responses then the cycle of reprisals will provide the popular support that terrorist factions thrive on. Therefore, the book supports international law-enforcement by espousing the benefits of a balanced response to international terrorism that extends the rule of law whilst safeguarding human rights to a common international standard.

Chapter 2: Why is a Global FBI Required?


2.1 Transnational Threats to International Security

Definition: A transnational security issue is one that crosses, or has the capacity to cross, an international border or borders. It also has to involve at least one non-state actor; otherwise it would simply be an international security issue.1 Transnational security has become an area of concern since the end of the Cold War. Until then and into the 1990s, the major area of concern for states was the threat that other states presented to them. Whilst this threat persists today, albeit on a smaller scale, the globalization of trade, financial structures, cheap international travel, and technology have made it easier for non-state actors to pose a meaningful threat to nation states. Indeed, the National Security Strategy of the UK suggests that no state threatens the UK directly2, and that transnational crime and terrorism have replaced the Cold War, as the primary, prevalent threats to the UK, and have the potential to undermine wider international stability.3 The expansion of democracy around the globe has contributed to the threat of inter-state conflict diminishing, as demonstrated in figure 2.1. Hence, the ability that non-state actors possess to threaten, and indeed to materially influence the development of a state, has led to the emergence of this new field of study, transnational security.

Figure 2.1. Global Regimes by Type.4

2.2

Transnational Organised Crime and the Undermining of State Authority The estimated global cost of organised crime stands at approximately one trillion pounds. Within the UK, the Government estimates that over 20 billion of social and economic harm occurs as a result of serious organised crime.5

Indeed, to give some perspective to these figures, if the trade value were measured as a national economy is measured; the global criminal economy would be the fourth largest in the world.6

Figure 2.2 Famous Organised Criminal Groups.7 Some of the more famous international criminal groups are portrayed in figure 2.2 above. Arguably, the most stark example of transnational organised crime having an effect on a state was when the USSR split into its constituent parts at the end of the Cold War; it suffered from falling investor confidence due to the effectiveness of the new subversive element that was born out of former state economic actors combining with small, organised crime groups and discharged elements of the Soviet intelligence and security apparatus. These new groups with broad skills and access to intelligence and surveillance files were highly successful and able to operate with impunity, almost delegitimizing the new Russian democracy by questioning its ability to enforce the rule of law and provide for public safety.8 Another example of criminal elements having the ability to impact upon the workings of a state was the involvement of Kosovan drug traffickers in Western Europe, in the 10

assassination of the Serbian Prime Minister, Zoran Dindic, in 2003. In this case, the inclusion of state employees from law-enforcement, the military, and intelligence sectors allowed these criminal groups to persist beyond the end of the Balkan wars.9 Therefore, the threat that transnational actors pose to nation states is very real. In the modern world of personal computers, cheap international travel and lax international barriers, organised crime can migrate much more easily across national boundaries than the agencies tasked with their arrest. The ability of the judicial system to chase criminals across those boundaries is greater constrained because of the reluctance to share sovereignty over these crimes across state borders, as well as widely differing legal systems between states that use different procedures, and have varying attitudes to criminality. 2.3 Human Trafficking

Figure 2.3. World Diagram of Human Trafficking; Source and Destination Countries.10 Human Trafficking has been of concern to the international community since the very beginnings of the LoN. The first conference organised to deal with the trafficking of women and children was held in Geneva in June 1921. Yet, 89 years later and 200 years since the abolition of the slave trade, human trafficking remains a blight on the international collective conscience. This indicates that transnational human traffickers have remained a step ahead of global law-enforcement since the time of the LoN, through the Cold War and beyond, into the present. 11

Figure 2.3 shows where human trafficking victims come from in dark to light red, and where they go in dark to light blue. It is estimated that there are 27 million people in modern-day slavery across the world and that 800,000 people are trafficked across international boundaries every year.11 Some 80% of these victims are women and children earning an average of 8,500 per year for their owners, thereby undermining local economies and representing a real threat to the security of individuals susceptible to being caught in the trafficking world. 12 As the primary objective of the state is to provide security for its population, this security threat has become a widespread transnational problem across the globe. Human trafficking is not restricted to adjacent countries. Intercontinental trafficking is also evident; in the 2009 UNODC report, victims from East Asia were detected in more than 20 countries, including Europe, the Americas, the Middle East, Central Asia and Africa.13 The Convention on Transnational Organised Crime came into force in September 2003 and includes three protocols, including the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.14 Indeed, there is a case to argue that organised human trafficking groups already fall under the jurisdiction of the ICC: The crimes of enslavement, forcible transfer of population and enforced prostitution are specified as crimes against humanity in the Draft Code of Crimes against the Peace and Security of Mankind, written by the ILC in 1996.15 Also in the 2009 UNODC report, it is noted that traffickers rarely work alone. 16 Most traffickers in a destination country are distinct from the traffickers from the source country which indicates transnational criminal trafficking cooperation across the world. This organised criminal cooperation is a compelling reason for a new supranational lawenforcement agency to be created to complement existing international agencies. These criminals operate across national and continental borders. As globalization results in the barriers to commerce being withdrawn across the globe in the various free trade areas, transnational criminals find it easier to transit the same borders. However, the ability of police forces to operate either side of those same borders is extremely limited, with national forces largely restricted to their own territory. Their efforts against organised criminal gangs are, therefore, severely constrained.

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2.4

The Politics of National Policing of Human Traffickers

Consider the politics of spending national wealth on pursuing criminals outside the home territory of a state; as the threat has left the home shores, albeit temporarily, the problem becomes another states responsibility. Hence, there is no pressing public appetite to increase funding to combat transnational crime, particularly during the current global austerity drive. The greatest numbers of trafficked persons from figure 3 are from second world nations that have greater pressures on their limited national resources to combat a problem that is already leaving their territory. States that are dealing with an influx of people who have been trafficked have a greater reason to try to stem the flow from human inward trafficking as it is their social structures that bear the strain of the misery that this trade causes. However, their efforts are centred on the domestic coordination element rather than the source of the problem. The source is on another nations patch. If the source nation is unconcerned with their citizens being trafficked, why should the destination law enforcers look beyond their own borders?

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2.5

International Drugs Trade

Figure 2.4. Cartel Territories and Drug Routes, in and through Mexico.17 Cartel territories and drug routes relating to South America, Mexico and China are shown on figure 2.4. Most illicit drugs originate from South and Central Asia and South America18. The US has been at the forefront of efforts to deal with the international drugs trade since the 1970s, although, the international nature of drug trafficking prevents any country from effectively combating the trade alone. Hence, it is a truly transnational issue that presents an existential threat to even the hegemonic global superpower, as well as most other developed nations. Indeed, the paradox of the US situation is that, as licit trade prospers, opportunities for smuggling drugs alongside legitimate goods increase. Therefore, if trade is allowed to increase, it is likely that more drugs will get through, placing a greater burden on the infrastructure of the destination state. Hence, there exists a need for distinction between licit and illicit trade without significantly hampering the former, thereby seeking to allow the benefits from increased trade to outweigh the increased threat from drugs. The effects are more keenly felt among the developed nations as the profits to be gained from the illicit trade are greater in wealthier countries. The scale of the problem is vast; the UN estimates that 8% of total world trade is related to illicit drugs!19 The UK 14

Home Office published a drug-costs study in 2002 that estimated the cost of drug abuse in 2000 was 13 - 24 billion, based on its medium estimate.20 The problems posed by the phenomenon are not just the amount of drugs that flood into society and all the subsequent health problems that ensue from it, but also the breakdown of society around the whole activity: dealers accrue profits outside of national regulation, thereby avoiding the paying of taxes to help pay for the fabric of society; users become embroiled in criminal activity to pay for a drug habit that cannot be sustained by most licit vocations; the loss of working days to the economy has the potential to stunt national growth; policing activity becomes disproportionately connected with drug-related crime; gangs of organised criminals become territorially based and defend their turf with ever more violent means and offensive equipment, leading to an escalation in gun crime. Hence, the drug problem is one that has an effect on every part of society and is worthy of an international response. International cooperation and assistance is having a positive effect on the fight against transnational threats. However, as an example of the failure of current policing arrangements; where the efforts of drug control authorities in some countries have proved successful, drug trafficking operations have merely been shunted to weaker jurisdictions, and criminal gangs have developed greater organizational sophistication in response.21 This balloon effect, where squeezing by law-enforcement in one area simply gives rise to that activity elsewhere, will remain while a piecemeal attitude to introducing international policy agreements remains. Indeed, the ease with which criminal and terrorist groups can relocate across international boundaries and utilise international ungoverned space demands a radical rethink of how nation states collectively deal with transnational crime and terror.

15

2.6

International Terrorism

Figure 2.5. Picture of the Taj Mahal Hotel in Mumbai after the terrorist attack in 2008.22 Figure 2.6. Picture of the attack on the twin towers of New York in 2001.23 The history of transnational terrorism dates back to the 1970s with the Palestinian attack on Israeli athletes at the Munich Olympics in 1972. However, a step change in international terrorism began when the terrorist attacks on the twin towers of New York occurred on 11th September 2001, graphically displayed with pictures of the attack in figure 2.6 and the subsequent attack on the Taj Mahal Hotel in figure 2.5. Never before had a group based on the other side of the globe had the audacity to plan and execute multiple attacks against the hegemonic superpower, the energy of which was equivalent to the use of a tactical nuclear warhead24. The preparations for the September 11 terrorist attacks in 2001 spanned several continents, and so did the effects: the World Bank estimated the reduction of global GDP at almost 1%.25 This has escalated the threat from international terrorism from what could arguably have been seen as regional prior to 9/11, to being a truly global transnational issue which has given rise to the term the Global War on Terror. Figures 2.5 and 2.6 show iconic landmarks under attack. These images alone indicate that attacks on iconic landmarks have the potential to have a disproportionate effect on the psyche of the public being attacked. How and why has terrorism moved from being a regional issue contained within continents or even more localised within states, as with the Troubles in Northern Ireland, to being truly international?

16

2.7

Globalization and International Travel.

The awareness of the global populace of the world outside of the home-nation state has grown as international travel has become cheaper and more accessible to more and more people. Borders have become a barrier to trade rather than a desired control over the numbers of people entering or leaving any one country. Trade has made the world into an inextricably interconnected place where international travel is almost a right of the many rather than a privilege of the elite few. The paradox is that ease of travel is necessary for the global pursuit of prosperity, but brings with it opportunities for international terrorists to transit international borders with relative impunity. This ease of travel enabled the 9/11 bombers to travel between continents to plan and execute their devastating attack. Indeed, it has been established that the 9/11 attacks were orchestrated by cells working out of Montreal and Hamburg, such was the ease of travel across international frontiers.26 The processes involved with globalization contribute to outbreaks of terrorism. Commercial expansion of (usually) Western companies intrudes into local societies and introduces change to their economies. Local cultures including religious components are threatened by the accompanying secularization. It is this secularization that threatens religious and ethnic fragmentation with the resultant reaction by the more passionate and conservative elements of those societies. Indeed, religious groups of all types have been, and are, opposed to the secularism that accompanies modernity and globalization.27 As globalization continues and access to international travel becomes broader, the threat of a large scale terrorist attack increases as the accelerator factors of terrorism contribute to a more permissive environment for terrorists to work within.28 Indeed, the rise of religiously motivated terrorism in particular poses a truly transnational threat to the security of individuals and states, analogous to the way multinational companies challenge national business and fiscal regulation. It also lies behind much criminality, especially of the financial kind. For example, for some it is acceptable to commit crimes against people who are considered infidels.29

17

2.8

The Media as an Enabling Factor

Modern terrorism relies heavily on the media to spread its message around the world. Indeed, Prime Minister Margaret Thatcher called publicity the oxygen of terrorism when referring to the IRA in the 1980s: Democratic nations must try to find ways to starve the terrorist and the hijacker of the oxygen of publicity on which they depend.30 Whilst international travel and other elements of globalization have assisted in extending the global reach of transnational criminals and terrorists, the age of the internet has simultaneously rendered that distance largely irrelevant. It is possible for the messages of criminal and terrorist groups to inspire the organization and execution of crime or terrorist attacks without anyone transiting any borders at all.31 However, it must be remembered that media only transmit the message; they are not the originators of that message. Tore Bjorgo dismisses the media as a root cause of terrorism.32 Immediate media is simply a fact of modern life that allows for wide and prompt dissemination. However, the ease with which messages can be posted in the age of the internet makes it difficult for nation states to censor the communicators of terrorist ideologies. Therefore, it is more important to concentrate on efforts to change the message rather than stop it getting out, by removing the cause of such communication by subjecting everyone to a common rule of law. 2.9 Piracy

The issue of piracy should not be considered in isolation. There is a wide range of types of pirate operating on international waterways. They can be local seamen looking for a quick score, highly trained guerrillas, rogue military units, or former seafarers recruited by sophisticated criminal organizations.33 They attack in port, on the open seas, and in international waters. Entire ships, cargo, and crews simply vanish, hijacked by pirates working for international crime syndicates; these modern-day ghost ships often turn up later running drugs or carting illegal immigrants to the US.34 Piracy against high-value targets, predominately from the oil industry, is increasing. There were more than 400 pirate attacks worldwide in 2009, up from just 239 in 2006.35 18

The violence in the attacks in also increasing with 120 ships being fired upon in 2009 compared to just 46 the year before. Indeed, attacks against fishing vessels are more prevalent but these go largely unreported. Therefore, the true scale of the phenomena is likely to be far greater than just 400 attacks. It is also true that Somali pirates account for more than 50 percent of global reported piracy. However, this increase is mirrored in South America and in the South China Seas; countries reporting an increase in pirate activity include Brazil, Colombia, Costa Rica, Ecuador, Haiti, Venezuela, Peru, Bangladesh, Nigeria, Singapore, Malaysia and Indonesia. The global economy and the inter-dependency of nation states that goes with it establishes this as an issue for the entire international community. However, pirates are not having it all their own way. The presence of navies from various nations in the Gulf of Aden and elsewhere has reduced their success rate:36 Whilst the number of 2009 incidents [of Somali piracy] has almost doubled, the number of successful hijackings is proportionately less. This can be directly attributed to the increased presence and coordination of the international navies along with heightened awareness and robust action by the Masters in transiting these waters.37

19

Figure 2.7. Spatial Analysis of Attacks in the Indian Ocean.38 A disturbing shift in piracy from Somalia has been the relocation of focus from the Gulf of Aden to the East coast of Somalia and further into the Indian Ocean as displayed in figure 2.7. In the last quarter of 2009, pirates started working up to 1000 miles East of Mogadishu. This presents a significant problem for the international navies sent to combat the problem: operating in the open ocean rather than in the restricted straits of the Gulf of Aden provides a much larger surface area to be covered by a limited number of vessels. The number of vessels can be increased but this cannot be a sustainable response by the international community. Additionally, this is simply dealing with the symptom and not the cause. Why do Somali pirates continue to risk so much against naval opponents packing so much superior firepower? The answer may lie in the way pirates are dealt with upon capture allied to the poor conditions experienced by them on their home soil. Yusuf, a defendant in a landmark piracy case held in the Netherlands in June 2010, can expect a marked improvement in his living conditions, despite being sentenced to five years in a Dutch jail:

20

... [Yusuf] is quite happy being in prison, and is almost looking forward to being found guilty and sentenced. For the first time in his life he has access to a real toilet and is in a safe environment. The 24-year-old Yusuf hasn't seen his family in more than four months but he intends to send for his wife and children as soon as he is released from prison. He knows he cannot easily be sent back to Somalia. He loves it here in the Netherlands. 39 Hence, whilst the case may be one of the first of many, they are unlikely to prove much of a deterrent for pirates of the future. Whilst piracy is a crime with universal jurisdiction under international law, many countries have not codified this into national law. The UK is a case in point and delivers the pirates it detains to Kenyan authorities to prosecute, paying the Kenyans to do so. So far, 18 have faced trial with over a hundred awaiting their day in court. Additionally, many pirates have been picked up and brought back to Europe. However, the majority have been released at sea because of the cost and difficulty of bringing them to trial. The legal considerations of prosecuting pirates will be discussed in a later chapter. However, it is clear that the inability of the current international criminal justice system to act as a deterrent to piracy will continue to encourage pirates into the industry. It will also provide rich recruitment grounds from which corrupt businessmen can source their pirate navies. The actual pirates are usually controlled by gang leaders with contacts abroad. In exchange for part of the ransom - 1 milllion dollars per ship on average - corrupt businessmen provide the pirates with navigation equipment and weapons. The UN says local authorities in Somalia are also involved.40 2.10 Ungoverned Space and Corruption

In discussions with CT practitioners such as Tony Collings OBE, Sir David Veness, Peter Clarke and others, it has become clear that one of the chief concerns among them is the ability of the modern terrorist to simply move to an area of the globe that is either poorly governed, ungoverned or where local power is susceptible to bribery and corruption.41 The areas of concern are Sudan, Somalia, the Maghreb in general, Yemen, the Federally Administered Tribal Areas of Pakistan (FATA), areas of Central America and of course Afghanistan. According to Sir David Veness, the UNs focus is on assisting nation states to improve their own capacity and capability to police their own countries, as a part of the R2P program.42 However, there are three problems with this approach. 21

Firstly, spending money on assisting each of the 192 states of the UN, in turn, to improve is incredibly inefficient. Many of the states in question struggle to maintain the funding required for an effective local police force to maintain the rule of law, without considering a specialist force to combat serious organised crime and terrorism. Also, levels of quality in law-enforcement vary due to inconsistencies in national legislation. Indeed, in many of these areas, a fully functioning police force and judicial system remains an aspiration of the state. It would be much more cost efficient, and more effective, for the international community to combat transnational crime itself, using a law-enforcement agency specially commissioned to act globally, rather than help each of the states of the world individually to do it themselves. This is not to say that capacity and capability building is ineffective. However, for the most serious of crimes that have little impact on a host state, a specialist international organization with operational powers, has a greater prospect of success. Secondly, several CT practitioners have privately acknowledged that the balloon analogy used earlier in the dissertation is apposite here.43 As the Iraq and Afghanistan terrorist balloons were squeezed, terrorist activity relocated to areas where there was the potential for less interference by the international community, countries such as Sudan and Yemen. Bringing ungoverned spaces under the jurisdiction of the international community has the potential to deny these and other safe havens from terrorists and organised criminal gangs. Indeed, the greatest benefit to the international community of such a law-enforcement agency would be that it would extend the rule of law to those parts of the world where intentional or situational indifference to the concerns of other states, and impunity for transnational criminals and terrorists, exists. Lastly, the existence of ungoverned spaces leads to questions over jurisdiction; which jurisdiction applies in a given case or scenario, or whether crime can be committed where there is no state to set the laws. In the recent piracy case, there was no question that the suspects were pirates: Yusuf and the others admitted their profession at the first interview. However, their defence centred on a dispute over whether a Dutch court could exercise jurisdiction over them; the event occurred in international waters and the defence claimed that they should have been tried in Dutch Surinam where there is a distinct legal system to that of Holland.44 On this occasion, the defence was refused and the pirates convicted. However, the constant questioning of jurisdiction is likely to remain, and may prove fruitful in some cases, while the international legal situation 22

persists in allowing geographical gaps in coverage due to the existence of ungoverned space. The only other crimes committed in ungoverned space that can be tried under universal jurisdiction, other than piracy, are those crimes tried in the ICC. Presently, the ICC only has jurisdiction over people accused of war crimes, genocide and crimes against humanity, and only for those citizens of countries that are parties to the Rome Statute. If the crimes against humanity definition were extended to include terrorism, human trafficking and drug running, the PICJS would have access to an established court. However, whilst this may seem sensible ideologically, significant barriers exist politically and pragmatically to any extension of the powers of the ICC. The reasons for this will be explored in later chapters. 2.11 Parallel with the US FBI

The US FBI came into being in 1908. It started with 34 officers and has grown since to an organization over 30,000 strong.45 It was to provide well-disciplined specialist experts and was designed to fight corruption and crime.46 Its inception was based upon the federal system where the national government had jurisdiction over matters that crossed boundaries, like interstate commerce and foreign affairs, with all other powers reserved to the individual states.47 Between the World Wars, the FBI was empowered to deal with most crime where the criminals involved attempted to escape the rule of law by travelling out of the state that they had committed their crime in. This was an attempt by the US government to introduce an organization with the same geographical horizon or remit as the criminals it was intended to combat, and is a direct parallel to the situation facing the world today. The introduction of a federal investigative service was highly controversial in 1908. As such, the agency was given jurisdiction over few crimes at the outset. This controversy would certainly be matched by the international community if it was to be replicated in modern times. However, the circumstances that precipitated the introduction of the FBI by the US government match closely with the current situation in both the EU and the world at large. In 1910, the FBI had its jurisdiction expanded to include just one more crime; the Mann Act was passed making it illegal to transport women across state borders for immoral purposes. Even then, 100 years ago, expanded jurisdiction by the first federal law-enforcement agency was considered necessary to combat human trafficking. 23

2.12

Parallels with the Development of Law-enforcement in the UK

Since the introduction of a system of law-enforcement in tenth century England and Wales, policing has been locally focussed. This local focus provided strong links to communities but the power of the policeman was restricted to a geographical area until the 1960s. At the turn of the twentieth century, there were 183 separate constabularies in England and Wales.48 By 1969 this number had fallen below 50 and we now have just 52 in the UK as a whole.49 With the advent of the Police Act 1964, the powers of a constable were extended geographically for the first time beyond the locale in which they were employed, to include all of England and Wales. Also in 1964, Regional Crime Squads were introduced to deal with cross-border crime within the country.50 These regional crime squads remained until the National Crime Squad replaced them in 1998; a tacit political acceptance that a regional focus was too small a geographical remit to combat organised crime. This new national squad was replaced in 2006 by the current SOCA. SOCA, ..., was set up by the Serious Organised Crime and Police Act 2005, and assumed its full functions in April 2006. It is an intelligence-led lawenforcement agency with harm reduction responsibilities. The most damaging sectors to the UK are judged to be trafficking of Class A drugs, organised immigration crime and fraud. Other threats ... [are] ... within the remit of SOCA but, significantly, not terrorism.51 SOCA is soon to be replaced by the enlarged National Crime Agency but this new agency will still have no jurisdiction over terrorist acts. In its efforts to deal with nonterrorist threats, SOCA has approximately 20 liaison officers working outside of the UK.52 Therefore, the geographic remit of UK law-enforcement activity has grown, in terms of liaison, and is continuing to expand. However, the challenge is now upon us: how effective can national law-enforcement be on the soil of another state?

The wheels of progress at the UN are too slow to deal with the dynamic problem that transnational security poses to the international community. Trying to co-ordinate the efforts of 192 UN member states to effect common legislation, or improve the ability of states to act independently and effectively against these threats, adds an unnecessary and debilitating bureaucratic layer to the international efforts to prosecute individuals 24

and groups that are involved in transnational crime and terror. Indeed, the only nations that are pursuing international criminals are those that have the resources to do so. No one nation has the resources necessary to fight transnational crime and terrorism on its own, as was recognised in the UK National Security Strategy, 2009: In an increasingly interdependent world, we cannot opt out of overseas engagement. But overseas especially, we need to be realistic, and set realistic expectations, about what we can achieve.53 Conversely, those nations that are suspected of hosting transnational criminals and terrorists have little motivation to address the problem because the attacks are generally not committed on their soil. Therefore, a truly transnational global problem demands a truly transnational global solution.54 Recently, Interpol has become heavily involved with the UNs CTTF and has been given more than a score of executive actions by the UNSC directly relating to CT activity.55 This closer working of these transnational actors is welcome but would benefit from even closer collaboration. The workings of international law-enforcement will be further analysed in a later chapter.

25

References:

Chris Bellamy, Lecture on the Nature of Transnational Security, Cranfield University, 13 January 2010. Cabinet Office, National Security Strategy of the UK:Update [June] 2009, http://www.cabinetoffice.gov.uk/media/216734/nss2009v2.pdf (last accessed 12 July 2010). 3 Ibid.. 4 Polity IV Project, Global Regimes by Type, 1946 2008 http://www.systemicpeace.org/polity/dem2008s.jpg (last accessed 28 June 2010). 5 Cabinet Office, National Security Strategy of the UK:Update [June] 2009, http://www.cabinetoffice.gov.uk/media/216734/nss2009v2.pdf (last accessed 19 January 2010). 6 European Movement, Create a European FBI? A Police Force to Fight Cross-border International Crime, http://www.cleg.org.uk/European%20FBI.pdf (last accessed 22 June 2010). 7 Wasikah Security Training, Organised Crime Picture, http://images.google.com/imgres?imgurl=http://wasikah.com/yahoo_site_admin/assets/images/Internatio nal_Organised_crime.123161153.jpg&imgrefurl=http://wasikah.com/training&usg=__vscneDih3_mprXW0Qg1uMj0gVA=&h=720&w=960&sz=102&hl=en&start=7&tbnid=AwAunAYz8vTYWM: &tbnh=111&tbnw=148&prev=/images%3Fq%3DTransnational%2BOrganised%2BCrime%26gbv%3D2% 26hl%3Den%26sa%3DG (last accessed 21 January 2010). 8 Alan Collins, Contemporary Security Studies (Oxford: Oxford University Press, 2007), p.355. 9 Ibid.. 10 Global Fast, World Diagram of Source and Destination Countries, http://images.google.com/imgres?imgurl=http://www.globalfast.org/gfx/gifs/global_fast_human_trafficking _map.gif&imgrefurl=http://www.globalfast.org/gfx/end_slavery.php&usg=__jKu7G4QaefnwTBPzMy0U1bx WuiU=&h=275&w=480&sz=31&hl=en&start=14&tbnid=AyPMsNH0thepcM:&tbnh=74&tbnw=129&prev=/i mages%3Fq%3Dhuman%2Btrafficking%26gbv%3D2%26hl%3Den (last accessed 21 January 2010). 11 Polaris Project, Human Trafficking Statistics, http://nhtrc.polarisproject.org/materials/HumanTrafficking-Statistics.pdf (last accessed 17 January 2010). 12 Ibid.. 13 UN Office on Drugs and Crime, Global Report on Trafficking in Persons Feb 2009, http://www.unodc.org/documents/human-trafficking/Executive_summary_english.pdf (last accessed 18 January 2010). 14 Ibid.. 15 International Law Commission, Draft Code of Crimes against the Peace and Security of Mankind, http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/7_4_1996.pdf (last accessed 22 June 2010). 16 UN Office on Drugs and Crime, op cit. 17 Strategic Forecasting, Cartel Territories and Drug Routes, http://arizona.indymedia.org/uploads/2008/10/drug-traffic-routes-and-cartel-areas.jpg (last accessed 21 January 2010). 18 Drug Policy Alliance Network, Drug Policy around the World, http://www.drugpolicy.org/global/drugtraffick (last accessed 17 January 2010). 19 Chris Bellamy, op cit. 20 Christine Godfrey, G. Eaton, C. McDougall and A. Culyer, The Economic and Social Costs of Class A Drug Use in England and Wales, 2000, Home Office Research, Development and Statistics Directorate, July 2002, http://rds.homeoffice.gov.uk/rds/pdfs2/hors249.pdf (last accessed 22 June 2002). 21 Drug Policy Alliance Network, op cit. 22 Global Politics online, Picture of Mumbai Attack, http://images.google.com/imgres?imgurl=http://globalpoliticsonline.com/apol/tajburning580.gif&imgrefurl=http://globalpoliticsonline.com/wped/2009/01/17/mumbai-terrorist-attack-someaspects/&usg=__ta7iX385jzWquyh4l_6hLoy5PU=&h=353&w=600&sz=106&hl=en&start=37&tbnid=QCRAdj4x4i3dTM:&tbnh=79&tbnw=135& prev=/images%3Fq%3Dinternational%2BTerrorism%26gbv%3D2%26ndsp%3D18%26hl%3Den%26sa% 3DN%26start%3D36 (last accessed 21 January 2010). 23 President of Islamic Republic of Pakistan, Picture of Attack on World Trade Centre, http://images.google.com/imgres?imgurl=http://www.asifazardari.com/images/terrorism2.JPG&imgrefurl= http://www.asifazardari.com/terrorism.htm&usg=__eDRqy4E2

26

rDrnwK_vP7VecfHT8DQ=&h=341&w=313&sz=43&hl=en&start=8&tbnid=bu9Xtro1VzbVWM:&tbnh=120& tbnw=110&prev=/images%3Fq%3Dinternational%2BTerrorism%26gbv%3D2%26ndsp%3D18%26hl%3D en%26sa%3DN (last accessed 21 January 2010). 24 Chris Bellamy, op cit. 25 Cabinet Office, National Security Strategy of the UK:Update [June] 2009, http://www.cabinetoffice.gov.uk/media/216734/nss2009v2.pdf (last accessed 12 July 2010). 26 Marc Sageman, Understanding Terror Networks (Philadelphia: University of Pennsylvania Press, 2004) p. inside cover. 27 Alan Collins, Contemporary Security Studies (Oxford: Oxford University Press, 2007), p. 302. 28 Tore Bjorgo, Root Causes of Terrorism (London: Routledge, 2005), pp. 3-4. 29 Janet Smith, former MI5 officer and current history lecturer at Leicester University, interview conducted by email 30 July 2010. 30 Margaret Thatcher, Quote re: Oxygen of Terrorism, http://www.saidwhat.co.uk/quotes/political/margaret_thatcher (last accessed 22 April 2010). 31 UN Office on Drugs and Crime, op cit. 32 Tore Bjorgo, op cit, in toto. 33 John S Burnett, Dangerous Waters, Modern Piracy and Terror on the High Seas (London: Penguin Books Ltd., 2002), abstract. 34 Ibid.. 35 International Maritime Bureau International Chamber of Commerce, 2009 Worldwide piracy figures surpass 400, http://www.icc-ccs.org/index.php?option=com_content&view=article&id=385:2009worldwide-piracy-figures-surpass-400&catid=60:news&Itemid=51 (last accessed 28 June 2010). 36 Ibid.. 37 Ibid.. 38 MarineBuzz.com, Graph showing piracy activity increase in Indian Ocean during 2009, http://www.marinebuzz.com/marinebuzzuploads/UNOSAT_178F/UNOSAT_Somali_piracy_IO.png (last accessed 14 August 2010). 39 Associated Press, Dutch court sentences 5 Somali pirates to 5 years, 17 June 2010. 40 Ibid.. 41 Tony Collings OBE, former Special Forces Officer in the British Army, currently managing director of ECA Ltd., detailed discussions regarding the subject title at the CT Expo at Olympia May 2010. 42 Sir David Veness, Former Under-Secretary General of the UN, direct quote taken from telephone interview conducted 9 June 2010. 43 Private discussions with former military commanders with recent CT responsibilities spoken with at the CT Expo at Olympia in May 2010, including a former SAS Colonel who would like to remain anonymous. 44 Associated Press, op cit. 45 FBI, A Brief History of the FBI, http://www.fbi.gov/libref/historic/history/text.htm (last accessed 1 July 2010. 46 Ibid.. 47 Ibid.. 48 T.A. Critchley, A History of Police in England and Wales (London: Constable and Company Ltd., 1978), p. 221. 49 T.A. Critchley, op cit, p.298. 50 Metropolitan Police, History of the Metropolitan Police, http://www.met.police.uk/history/timeline19501969.htm (last accessed 6 July 2010). 51 House of Lords European Union Committee, 29th Report of Session 2007-8, Significant quote on the remit of SOCA, http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/183/183.pdf (last accessed 6 July 2010), p.20. 52 Peter Clarke, current non-executive director of SOCA, direct quote taken from interview conducted 21 June 2010. 53 Cabinet Office, National Security Strategy of the UK:Update [June] 2009, http://www.cabinetoffice.gov.uk/media/216734/nss2009v2.pdf (last accessed 19 January 2010). 54 Ibid.. 55 Sir David Veness, op cit.

27

Chapter 3: Strengths and Weaknesses of the Current International Law-enforcement Environment.


3.1 Collective Action against Transnational Threats 3.1.1 UN Police

Figure 3.1. The UN Crest. 1 The UN has its own police force. The UN Police has grown to 12,500 personnel and is likely to reach 16,000 by the end of 2010.2 Most of this growth has been since 1995 when the force stood at only 1170 personnel.3 However, the remit of the UN Police force is limited. They patrol, provide training, advise domestic policing services, help ensure compliance with international human rights standards and assist in a wide range of activities to restore and promote security, public safety and the rule of law.4 This growth in UN Police numbers is certainly helpful in post-conflict or post-natural disaster scenarios like Haiti; early in February 2010, after the earthquake of 12 January, the first of 1,500 UN police officers arrived to help the Haitian National Police. Indeed, the UN Police sent a Formed Police Unit of 140 specially trained riot police to help with crowd control and higher-risk operations. However, the focus of the UN Police is to help national police forces to take control of their own rule of law. UN Police officers have no powers of arrest and detention. The few instances where these responsibilities are given to the UN Police are only as part of UN transitional administrations, as was the case in Kosovo and Timor-Leste.5 The UN Police are primarily engaged in rebuilding and reinforcing judicial and policing capacity in countries emerging from conflict.6 This is despite the recognition from a UN police advisor in 2009 that organised crime hampers the progress of post-conflict societies: Organised crime should be viewed as a major spoiler to peacekeeping and peace-building. One of the most insidious features of organized crime is the corrosive and toxic effect it has through the corruption of officials. It is a 28

catalyst for instability and if it is left unchecked it can undermine all of our efforts to build long-term security in fragile, post-conflict societies.7 The UN Police is an integral part of the R2P doctrine that concentrates on building capacity and capability in member states. Whilst this does not provide the necessary international emphasis to deal with transnational organised crime or terrorism, it is complementary to the introduction of any supranational agency. Indeed, local connectivity for the collection of intelligence is essential in the fight against terrorism. One of the challenges facing any supranational law-enforcement agency would be the forging of close ties with local law-enforcement to glean essential local knowledge and intelligence to assist their investigations. 3.1.2 Other UN Efforts The UN Convention against Transnational Organised Crime entered into force in 2003 and the UN has also introduced the CTTF. Both the convention and the CTTF exist to assist nation states in implementing agreed measures from the Global CT Strategy resolution 62/272. The UN is heavily involved in co-ordinating the international response to the transnational terrorism threat by informing and assisting nation states to implement common domestic policies. Harmonizing domestic legislation relating to terrorism and organised crime is a helpful and important task and is complementary to the introduction of the PICJS. 3.1.3 Europol

Figure 3.2. Europols Crest8 Europol, Eurojust and the European Police College were constituent parts of the measures included in the Maastricht Treaty of 1992. The intention was for Europol to try to combat the problem of transnational crime and terrorism.9 Europol began operations in 1999, initially focussing on drug trafficking, but has since expanded to target a broader array of transnational crimes including human trafficking, smuggling, terrorism and financial crimes, including money laundering.10 This is an example of how the international community is evolving to meet the transnational security threat of 29

international organised crime. However, Europols main purpose is to help individual states to pursue, rather than being the service with powers to arrest, detain and prosecute in their own right. Europol has suffered from decision-making by committee since its inception. As an intergovernmental body, rather than a constituent part of the EU, decisions had to be made at conferences where each member nation had to be present. This debilitating procedure has now been overcome with the adoption of Europol into the EU system, following the Lisbon Treaty: the EC now appoints a leader of Europol who is directly answerable to the European Parliament, thereby bypassing the formerly difficult and laborious method of management. The key distinction between Europol and Interpol is that Europol is a statutory body and is restricted to dealing with crime within the EU. When there is overlap between the two organizations, Europol claims primacy because it is democratically and formally constituted, whereas Interpol is, effectively, a policing club without a formal remit.11 This causes tension between the two organizations. Europol, as with other international agencies, is considered good at post-incident analysis due to its broader geographical reach and ability to pool intelligence.12 In fact, Europol does have a role in operational policing, if only as a support function. When JITs are used, a Europol officer is put at the disposal of the JIT for investigative assistance and can take part in operational activity alongside national police. The major problem with the use of Europol, as identified by a written report in the House of Lords in 2008, 13 is lack of trust in the system.14 Many liaison officers simply share their information with their opposite numbers in the territory concerned, bypassing the Europol central system.15 Practitioners prefer bi-lateral arrangements because they are quicker, and personal contacts help to build the trust necessary to feel confident in passing sensitive information that could have a material effect on the success of an investigation if that information was to be leaked. However, this then bypasses the EIS, which allows all Europol personnel to use that information, which is one of the key benefits of having a European investigative service, thereby restricting the effectiveness of the analytical, intelligence-led element of Europols output.

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3.1.4 Interpol

Figure 3.3. Interpols Crest.16 INTERPOL aims to facilitate international police cooperation even where diplomatic relations do not exist between particular countries. Action is taken within the limits of existing laws in different countries and in the spirit of the Universal Declaration of Human Rights. INTERPOLs constitution17 prohibits any intervention or activities of a political, military, religious or racial character.18 Therefore, as with Europol, Interpol does not have its own set of laws which it can prosecute with. It can only assist national police forces with the apprehension of criminals and investigating crime. However, when corruption within a state is endemic, there is limited value to a system that can only assist local criminal investigation rather than act independently. However, one of Interpols great strengths is its independence. Interpol is not funded directly from national budgets. Rather, national police forces allocate part of their own budgets to Interpol. The seat of Interpol at Lyon, France runs a modest annual budget of under 50 Million. There are 188 states as members of the organization so the cost per state is a little over 250,000. This is exceptional value in modern policing. Interpol provides: ... access to the worlds only secure global police communications system; global databases including names of criminals, fingerprints, DNA profiles, stolen passports, and stolen vehicles; and specialized investigative support in key crime areas, including fugitives, drugs, terrorism, trafficking in human beings and corruption.19 However, if Interpol has a failing, it is in the fight against international terrorism. A key benefit of Interpol is that it is free from political concerns and allows contact between states law-enforcers where there is no or limited diplomatic relations. All information 31

passed to Interpol must be visible to all other members of the organization. This inclusivity is both a great benefit and an achilles heel;20 in the fight against terrorism, much intelligence is not shared with Interpol by nation states precisely because of this inclusivity.21 3.1.5 Eurojust

Figure 3.4. Eurojusts Crest.22 Eurojust is essentially a judicial cooperation body which oversees the introduction of JITs between two member states, and acts as the deciding arbiter in questions regarding which state is best placed to prosecute any criminal investigation undertaken by a JIT. Its origin dates from 1999, and the terrorist attacks on the twin towers hastened the setting up of a judicial coordination unit, resulting in Eurojust commencing activities in 2002 and moving to its current home in The Hague in 2003.23 Eurojust's competence covers the same types of crime and offences for which Europol has competence, such as terrorism, drug trafficking, trafficking in human beings, counterfeiting, money laundering, computer crime, crime against property or public goods including fraud and corruption, criminal offences affecting the European Community's financial interests, environmental crime and participation in criminal organizations. ... Eurojust supports in any way possible the competent authorities of the Member States to render their investigations and prosecutions more effective when dealing with cross-border crime.24 Recent feedback regarding the efficacy of JITS by practitioners has been positive.25 However, since their inception there has been a reluctance to use them.26 For example, the UK has used the JIT process just twice since 2002.27 Eurojust has recognised the reluctance to use JITs by national law-enforcement agencies and cite trust, awareness and complexity as the major barriers to their use. In the fifth meeting of National 32

Experts on JITs, in December 2009, key difficulties with the use of JITs were identified as being the differences between evidential and disclosure requirements between participating states.28 The resultant document recognises that every time a JIT is established between participating states, establishment of the common evidential and disclosure requirements is necessary at the outset. It also recognises that common requirements cannot be established in advance because they depend on the respective national legislation and cannot be overridden by JIT agreement.29 This means that every potential JIT has to go through a thorough and complex comparison of the respective legal systems and procedures before it can start to investigate cross-border crime. With 27 member states participating in Eurojust, this process would have to be completed 351 times before every state has completed a legal comparison with every other state in the EU. The other difficulty facing the more widespread use of JITs is that of national chauvinism. The altruistic notion is that the bringing of a criminal to effective justice is more important to the secondary nations JIT participants than the recognition that would be foregone by them by not taking the lead in the investigation. This notion is simply not supported by pragmatic experience. The effort that would be required by all sides to put a JIT in place is significant. Those man-hours must realise a quantifiable result. In the UK this would be in the form of a detection and consequent prosecution. However, if the UK was the supporting nation in a JIT that resulted in a trial elsewhere, the motivation to pursue the setting up of a JIT would be less; any suggestion otherwise would be to deny human nature. Indeed, the financial justification for the expended man-hours would be more difficult to justify internally given the absence of any domestic detection or consequent prosecution. 3.2 National Responses to Transnational Issues

SOCA and the FBI Both the UKs SOCA and the US FBI maintain a liaison presence worldwide. The US FBI has dedicated officers in circa 75 US embassies and SOCA has a network of approximately 20 operatives dispersed around the world.30 However, this is just two nations attempting to act unilaterally. Other nations have a similar approach in attempting to interdict transnational crime and terrorism. However, the problems with unilateral efforts include a lack of sufficient resources, a lack of legitimacy in the eyes of the wider international community and a lack of coordination of effort, partly due to the 33

difficulties inherent in sharing sensitive information. In this age of global austerity and the drive to get value from public money, it seems sensible to pool resources so that common threats to all states are dealt with in a coordinated manner by an organization that has legitimacy to act on behalf of humanity, rather than on behalf of individual states. This should result in economy of effort and better results through effective coordination, leadership and targeted resource allocation to combat the common transnational threats to humanity. It would also provide those countries without the resources to tackle transnational crime and terror unilaterally, with a stake, and therefore an interest, in the performance of the agency, thereby empowering every nation in the fight against transnational actors.

Figure 3.5. The UK National Security Strategy Document.31 In recent years there has been a move to review national security and produce documents detailing the threats and their relative risks. In 2008, the UK issued its first version of a national security assessment which was subsequently redrafted the following year.32 The response of the UK is outlined in the following direct quote from the introduction of the latest update of the document: ... our response will draw on a wide range of better integrated capabilities including our Armed Forces, law-enforcement [emphasis added], security and intelligence agencies, diplomatic capabilities, and international development activity.33 This statement clearly makes the point that future threats will be dealt with after consideration of all possible capabilities, rather than a presumption that security is the realm of the military first and other agencies second. To make sure this happens the UK has established the National Security Secretariat to coordinate this activity within the Cabinet Office. Similar advancements in organizational development are being made in other states and the EU, the latter in the form of the CT coordinator which has been 34

within the EU Council Secretariat since its inception in 2004, which was a political response to the Madrid bombings.34 Transnational crime and terrorism are rarely distinct; terrorism is often funded by transnational illicit activity. However, the national responses to the threats posed are separated in many cases. In the UK it is the responsibility of the three intelligence services to fight terrorism: serious and organised crime is left to SOCA. This organizational demarcation is guarded jealously by the intelligence services.35 Also, the military play a greater role in the fight against terrorism, in contrast to the fight against organised crime, in the UK and elsewhere. 3.3 Intelligence Sharing

Sensitive information is not shared when the information could either be leaked unintentionally by another state, or that the terrorist group concerned has been supported by a nation state member of the organization, be that organization the UN, Interpol or NATO. This lack of trust also prevails with the UKs relations with the UN CTTF. The assertion by CT practitioners is that the UN ... leaks like a sieve, in terms of sensitive intelligence.36 The closer collaboration between Interpol and the UN CTTF, whilst welcome idealistically, results in a pragmatic barrier to progress in terms of intelligence sharing, specifically in relation to terrorist activity. As intelligence sharing is encouraged, the problem morphs into one of sanitisation. The value of intelligence is not just in its timeliness of receipt but also in how it was acquired. However, revealing the source of intelligence can compromise the receipt of further intelligence from the same source. Therefore, intelligence is sanitised to protect sources. Conversely, the value and credibility of that intelligence becomes questionable because the intelligence is provided without detail of how the information was gleaned. 3.4 Confidential Information and the Anglo-Saxon Five-Eyes System.

The inclusion of the military in fighting terrorism provides useful operational capabilities that police forces do not possess: the Iranian embassy siege was concluded in 1980 with the use of the SAS, a specialist element of the British military. However, using the military in CT operations also complicates the ability to share sensitive intelligence.

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It has long been accepted that the US and UK have a strong intelligence connection, fostered during the last World War. During the latter half of the twentieth century, many secrets were classified not only by their level but also by the nationalities that were permitted to have access to them, and this system remains in use today. Initially it was the two-eyes system where only US and UK personnel could see various levels of military secrets. This has since metamorphosed into the five-eyes system that includes Australia, Canada and New Zealand and is the most commonly used caveat for permission to divulge regarding military secrets. Trust even has an effect on intelligence sharing with partners within NATO; despite a close working relationship within NATO, military secrecy is considered very carefully when passing information between NATO partners outside of the five-eyes system. Mistrust of the interests of Member States, whether that is of the EU or NATO or other international groupings, is the primary concern.37 Why is trust so important? Trust is crucial in relation to intergovernmental intelligence sharing because policy makers are unable to verify independently the accuracy and reliability of shared intelligence. This creates the possibility that intelligence could be deliberately altered or withheld to influence subsequent policy choices in a given direction that serves the interests of one party but not the other. This form of manipulation is easily disguised and difficult to detect, particularly when some of the intelligence is gained through clandestine activity that the sourcing nation wishes to conceal.38 There is also the political aspect of intelligence sharing: For example, the fact that Britain depends on intelligence it receives from the US may make British policy makers wary about sharing too frequently with European countries if doing so raises questions in Washington about Britains reliability.39 Hence, the five-eyes exclusivity has served the Anglo-Saxon nations well in recent times. This is supported by the US position or preference on British involvement in EU structures which can be best described as, be close, but not too close. Conversely, there is an argument to suggest that information sharing within the EU should be easier due to a higher degree of institutional trust already extant. EU Member States have shared a degree of sovereignty or authority with their European counterparts. For example, responsibility for securing borders has been shared with nations at the 36

perimeter of the EU. This in itself might be seen as a strong indicator of high levels of mutual trust. There are three mechanisms in place to facilitate intelligence sharing within the EU: the Berne Group, Europol itself, described above, and the European Military Staff. However, the common element of all of these mechanisms is that intelligence sharing is considered voluntary and there are negligible procedures for monitoring or punishing a failure to disseminate relevant intelligence. Because of this, politicians and officials regularly express concern that sharing is not as open as possible, and frequently identify mistrust is the key barrier to greater sharing.40 Perhaps the best way to develop better intelligence sharing is to recognise where it has been successful in the past and use this model to facilitate improvement. The US and UK shared a bilateral agreement for decades. At Europol, bi-lateral arrangements are the method of choice for practitioners. Perhaps it would be best to support the growth in bi-lateral agreements so that those who are not party to them see that other states are benefitting from them and are then, ultimately, encouraged to pursue agreements of their own.41 These bi-lateral agreements can then be expanded to include other states that share common interests, just as the two-eyes system expanded into the five-eyes system. In terms of combating transnational crime and terrorism, there is a common threat which can serve as the common concern that supports greater information sharing. However, the guarding of military secrets remains a significant difficulty to overcome in the global fight against terrorism. Therefore, there is a better chance of effective action against transnational crime by a Global FBI, than against terrorism, precisely because of the heavy involvement of secret intelligence services in CT operations.

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References:

UN, UN Emblem, http://images.google.co.uk/imgres?imgurl=http://www.un.org/esa/socdev/unpfii/media/images/UNLOGO%2520copy.jpg&imgrefurl=http://www.un.org/esa/socdev/unpfii/en/drip.html&usg=__HibY5V7S9W 6Kbt6JdVz0toqb7N4=&h=400&w=400&sz=82&hl=en&start=1&um=1&tbnid=_i2rK2Z6CUU7OM:&tbnh=1 24&tbnw=124&prev=/images%3Fq%3DUnited%2BNations%26hl%3Den%26um%3D1 (last accessed 21 January 2010). 2 UN Police, Introductory remarks by Ban Ki Moon, http://www.un.org/en/peacekeeping/sites/police/index.shtml (last accessed 5 July 2010). 3 UN Police, UN Police January 2010 magazine, http://www.un.org/en/peacekeeping/sites/police/pdf/UNPolice_mag4.pdf (last accessed 5 July 2010), p.17. 4 Ibid.. 5 UN Police, What the UN Police Do, http://www.un.org/en/peacekeeping/sites/police/policework.shtml (last accessed 5 July 2010). 6 Department of Peacekeeping Operations, Update April 2010, Foreword by Alain Le Roy, UnderSecretary General for Peacekeeping Operations, http://www.un.org/en/peacekeeping/publications/cljas/justice042010.pdf (last accessed 5 July 2010), p.1. 7 UN Police, Taking on Organised Crime, comment from Andrew Hughes, Commissioner and UN Police Advisor 2009, http://www.un.org/en/peacekeeping/sites/police/crime.shtml (last accessed 5 July 2010). 8 Cercle Alexis de Tocqueville, Europol Emblem, http://images.google.co.uk/imgres?imgurl=http://www.gouverner.net/go/moxiepix/a52.gif&imgrefurl=http:// www.gouverner.net/go/articles/story-of-the-neweuropol.shtml&usg=__KO8HNfxbK3Pp1FQWfm2S4xFf1Kc=&h=193&w=315&sz=17&hl=en&start=2&um =1&tbnid=3RTM08yhaCy0SM:&tbnh=72&tbnw=117&prev=/images%3Fq%3Deuropol%26hl%3Den%26u m%3D1 (last accessed 21 January 2010). 9 Emanuel Marotta, Deputy Director of Europol, Europols Role in Anti-Terrorism Policing, http://dx/doi/org/10.1080/09546559908427527 (last accessed 17 June 2010). 10 Alan Collins, op cit, p.362. 11 Bill Newton-Dunn, Longest Serving British MEP (1979 2010) with a Special Interest in European Policing, interview held 5 July 2010. 12 Peter Clarke, op cit. 13 House of Lords, Select Committee on European Union, Twenty-Ninth Report, http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/183/18306.htm (last accessed 6 July 2010). 14 Peter Clarke, op cit. 15 House of Lords, op cit. 16 Interpol, Interpol Crest, http://www.interpol.int/default.asp (last accessed 21 January 2010). 17 Interpol, Constitution and General Regulations, http://www.interpol.int/Public/ICPO/LegalMaterials/constitution/constitutionGenReg/constitution.asp (last accessed 14 August 2010). 18 Interpol, Mission Statement, http://www.interpol.int/public/icpo/default.asp (last accessed 16 January 2010). 19 UN Police, UN Police January 2010 magazine, op cit (last accessed 5 July 2010),p. 4. 20 Peter Clarke, op cit. 21 Tony Collings OBE, Managing Director of private security firm and former British Army senior commander of UK special forces unit conducting CT operations, interview conducted 14 April 2010 at CT Expo, Olympia. 22 Eurojust, Eurojust Crest http://www.fiscal.es/cs/userfiles/image/Eurojust_Logo.jpg (last accessed 8 July 2010). 23 Eurojust, The History of Eurojust, http://www.eurojust.europa.eu/about.htm (last accessed 8 July 2010). 24 Eurojust, Eurojusts Mission and Tasks, http://www.eurojust.europa.eu/mission.htm (last accessed 8 July 2010). 25 Council of the EU, Conclusions of the Fifth meeting of the National Experts on JITs, 1 December 2010, http://www.eurojust.europa.eu/jit/council-documents/ST17161%20EN09.pdf (last accessed 8 July 2010).

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Ken Littlewood, International Deputy Manager of the Association of Chief Police Officers Criminal Records Office, interview conducted on 14 April 2010 at the CT Expo, Olympia, London. 27 Ibid.. 28 Council of the EU op cit. 29 Council of the EU op cit,p.6. 30 Peter Clarke, op cit. 31 Cabinet Office, Picture of UK National Security Strategy Document 2008, http://images.google.co.uk/imgres?imgurl=http://www.tsoshop.co.uk/parliament/gemimage/599410.jpg&i mgrefurl=http://www.tsoshop.co.uk/parliament/bookstore.asp%3FFO%3D1259469&usg=__Lj0tkj0Ve5LL PfTZcXzcJa0k9JI=&h=200&w=135&sz=7&hl=en&start=11&um=1&tbnid=NPBWZi_SvHrwPM:&tbnh=104 &tbnw=70&prev=/images%3Fq%3Dnational%2Bsecurity%2Bstrategy%2Bof%2Bthe%2BUK%26hl%3De n%26cr%3DcountryUK%257CcountryGB%26sa%3DN%26um%3D1 (last accessed 21 January 2010). 32 Cabinet Office, op cit. 33 Ibid.. 34 European Commission, CT Coordinator, http://ec.europa.eu/justice_home/fsj/terrorism/institutions/fsj_terrorism_institutions_counter_terrorism_coo rdinator_en.htm (last accessed 12 July 2010). 35 Peter Clarke, op cit. 36 Tony Collings OBE, op cit. 37 James Walsh, Intelligence-Sharing in the European Union: Institutions Are Not Enough (JCMS 2006, Vol. 44, Number 3), pp.625-43. 38 Ibid.. 39 James Walsh, op cit. 40 Ibid.. 41 Ibid..

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Chapter 4: The International Legal Perspective


4.1 A Brief Legal History

Figure 4.1. Europe as it stood after the 1648 Treaty of Westphalia.1 Figure 4.1 shows how the map of Europe was defined after the Thirty Years War ended in 1648 with the Treaty of Westphalia. Many of the state borders that are described in this map are recognisable today, indicating that the status quo at the time has been largely accepted since then. This treaty brought about the concept of non-intervention in the affairs of nation states by other states. After the defeat of Napoleon Bonaparte and the wars of the French Revolution, the Congress of Vienna ensued where the victorious states dictated terms to the defeated French but left the French borders largely intact. The Congress of Vienna, and the subsequent Treaty of Paris that amended the decisions of the Vienna Congress, was successful in that it prevented a major war in Europe from taking place for almost a century, before World War I started in 1914.

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4.2

International Legal Structure 1899 1945

In 1899, with the introduction of the PCA, a structure to international law started to emerge so that disputes between states could be settled by independent tribunal. The value and shortcomings of the PCA that, despite its title does not refer to a tribunal that is permanently constituted, resulted in the subsequent introduction of the PCIJ which became a working reality in 1922. With the creation of the UN in 1945, the ICJ, which was based largely on the PCIJ, replaced the PCIJ as the court that hears cases between states.2 4.3 The League of Nations and the UN

Following the First World War, the LoN, forerunner to the UN, was considered an essential part of the international mechanism to bring international peace. Indeed, the Axis powers of Germany, Italy and Japan were all members, and the US was not. However, the Axis powers withdrew from the LoN between 1933 and 1937 and so, ultimately, with the main warring parties no longer members of the organization, the League was unable to prevent the Second World War.3 However, the failure of the League to prevent World War Two led to a greater resolve by national governments to ensure that peace was placed at the centre of a new organization, the UN, which would differ from the League in many ways, not least in that it would have its own standing military forces and legal framework with which to intervene to maintain international peace and security where necessary. The success of the modern UN lies in its almost universal inclusivity. There are now 192 state parties to the UN and no state has ever effectively withdrawn from it. 4.4 Founding Principles of the UN

The UN was founded in an effort to save succeeding generations from the scourge of war. To do this the founding nations resolved to unite our strength to maintain international peace and security and to ensure... that armed forces shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples4. These excerpts, taken from the declaration of the common position at the inaugural meeting of the UN, suggest that there is a fundamental aversion to the use of military force by the UN that has its roots in the founding declaration. Indeed, it could be argued that the growth of the UN 41

membership since then has been because of the attractiveness of this peaceful founding principle. 4.5 Chapter VII and Article 43

There is one organ of the UN that has never been fully realised since the UN came into being after the Second World War. It was the intention of the founding nations to allow the UN to have its own standing military, under the command of the MSC, and donated by nation states. All Members of the UN, in order to contribute to the maintenance of international peace and security, undertake to make available to the [UNSC], on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining peace and security. ... the agreement or agreements shall be negotiated as soon as possible on the initiative of the [UNSC].5 The MSC exists today but there has never been the political appetite amongst member states to donate military forces to be controlled independently of those states by the UN. However, the legal instrument to introduce a supranational force exists; Article 43 in Chapter VII of the UN Charter. Membership of the UN has always been open to all other peace-loving states which accept the obligations contained in the present Charter.6 It can be argued that this is the fundamental reason why a standing military force under UN command has never been introduced since the UNs inception. The establishment of an independent UN military force with the power to act unilaterally is simply incongruous with an international organization committed to the peaceful resolution of conflict. It is important to consider the perspective at the time. The World of 1945 was a very different place to the modern day international system. In the beginning, the UN was a collection of states with just as many members as not. Whilst supporting the ideological foundations that underpin the UN, it was also recognised that there remained existential threats to nation states by other states that were not members. Today, admission to the UN is effective recognition by a majority of states, allowing those nations to be invited to the international debating table.

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The primary threat to international peace and security has changed from that posed by nations, to that posed by transnational actors with resources at their command not dissimilar to that of small nations. The fact that recognition by a majority of states is proven by admission to UN membership is further evidence that the UN has metamorphosed from a simple alliance built on an ideological foundation, into a truly global system of international relations. Article 43 is moribund in the modern system.7 The likelihood of the UN introducing its own military forces under this instrument, as initially envisaged in the beginning, is virtually nil. However, the instrument remains and is ratified by all 192 member states as it is a constituent part of the Charter itself. It would be possible to transform the current moribund nature of Article 43: the founding declaration of the UN says that the main purpose of the organization is to promote peace and security, economic and social advancement, and to do so in the common interest.8 Serious transnational crime and terrorism are blights on the international system and justify action in the common interest. Indeed, the UNODC already exists. Therefore, there is consensus in international relations that drugs and crime warrant action by the UN. This author suggests that it would be more politically acceptable to introduce a supranational law-enforcement agency under the auspices of Article 43 and Chapter VII than a military force. This would be more in keeping with the peaceful principles upon which the UN is built as the rule of law is essential in promoting international peace and security. 4.6 International War Crimes Tribunals

At the end of World War Two, at the insistence of the Russian and American governments, senior members of the Axis powers were tried for war crimes and crimes against humanity. Initially, their defence centred on the fact that they were simply following orders, otherwise known as the Nuremberg Defence. However, Article eight of the Charter of the International Military Tribunal clearly stated that, ...act[ing] pursuant to an order of his Government or of a superior shall not free him from responsibility ....9 Other articles of the Charter also clarified that individuals would be made to take responsibility for their own actions. Until the Nuremberg trials, international law was seen solely as the law among nation states. Individuals were not considered to have international legal personality, in the sense of having direct rights and duties in international law. The Nuremberg proceedings were designed to punish 43

alleged violations of duties imposed directly on individuals by international law. The Nuremberg Judgment acknowledged this: It was submitted [by the defence] that international law is concerned with the actions of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of State, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both of these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon States has long been recognized.10 After Nuremberg, this idea of an international criminal law came to be firmly established in both the legal and the popular minds.11 4.7 Erosion of the Sovereignty Principle

The sovereignty principle is a major stumbling block for the creation of any supranational body. Whilst various international policing agencies exist that assist national police forces to deal with transnational criminals, they lack operational or executive powers. Interpol, Europol, Borderpol, EuroJust and the UN Police Force all lack jurisdiction and the ability to arrest, detain or prosecute. However, the sovereignty principle has begun to be eroded in recent years. In Kosovo, NATO decided that the hitherto primary principle of international relations had to be considered as secondary to the humanitarian needs of the population. This was the first time that humanitarian intervention had usurped the former primary principle of non-intervention, but it was not universally accepted, initially. Indeed, the Russian Federation, which is a collection of more than 80 regions12, was understandably anxious to dispute the right of states to intervene in their neighbours internal strife. However, more recently, the Russians have pleaded the right to intervene in Georgia on a humanitarian basis. Hence, both sides of the former East-West divide have set the precedent that humanitarian action can be taken despite the existence of the sovereignty principle. Indeed, this erosion is further supported by the widespread condemnation by the international community of the UNSC for failing to intervene in the Rwandan genocide of 1994.13 Therefore, the international principle of non-intervention in internal matters of state has had caveats applied where previously there had been 44

none. This blurring of the sovereignty principle is key to both the future of the international system and to the case for the creation of a supranational law-enforcement agency.

Figure 4.2. Development of Active UN Peacekeeping Operations, 1948 2006.14 Figure 4.2 shows the dramatic increase in UN-led operations since the end of the Cold War. The end of a world divided by ideological boundaries and the Iron Curtain gave way to the processes of globalization and inter-dependency. It was argued that those capable of ensuring human rights are observed should do so, if necessary by force; hence the growth of UN-led operations since the end of the Cold War. 4.8 General Principles of Criminal Law

There is precedent for the consideration of general principles of domestic national law in the prosecution of international crime. Indeed, behind treaties and customary law, general principles of domestic law are the next recognised source.15 However, as only treaties and customary law are considered as primary sources of international law, resorting to secondary sources is rare. However, much of the work of ICTY relies on general principles of domestic criminal law as justification for its decisions.16

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4.8.1 Drazen Erdemovic

Figure 4.3. Drazen Erdemovic.17 Drazen Erdemovic, seen in figure 4.3 at the ICTY, participated, as part of a firing squad, in the shooting and killing of hundreds of unarmed Bosnian Muslim men from Srebrenica, a town located in eastern Bosnia and Herzegovina, personally killing approximately 70 people. He pleaded guilty to murder under duress and was subsequently sentenced to five years in jail, of which he served 41 months.18 There were no appropriate treaties to use and no common customary law to try him with. Therefore, the ICTY resorted to general principles of law, including for the purpose of sentencing and considerations of mitigation. Their decision was based on general principles of law established from multiple states common practice, but that were not common enough to be considered customary law. Erdemovic was held to have individual responsibility for his actions, even though he had significant mitigating factors in his favour. The Erdemovic case at the ICTY showed that it was possible for an international court to establish common principles of criminal law that would be accepted by the majority of states, to hold individuals personally responsible. This was a key development in international law relating to individual responsibility rather than law relating to the relations between states. The interesting element of the Erdemovic case is that he was a relatively low ranking soldier. He voluntarily surrendered to the ICTY soon after the end of the conflict, perhaps persuaded to do so by a regime keen to show the international community that Serbia was acting as a responsible state in pursuing war criminals. However, the most notorious, and arguably important indictees, were not brought before the Tribunal for many years: Radovan Karadzic, Ratko Mladic, Goran Hadzic and senior generals were not handed over for at least ten years, and two of these senior figures, Hadzic and Mladic, remain fugitives today.

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Indeed, when NATO went into the countries of the former Yugoslavia, there was much debate as to whether the forces on the ground were charged with apprehending PIFWCs, or whether this was a role for local law-enforcement. The new administrations did not have the resources or the organizational maturity to pursue PIFWCs and left it to NATO. NATO quickly decided that chasing PIFWCs was not a part of its mandate and actively avoided the role. This demonstrates well the capacity, capability and political motivation vacuum that can exist in post-conflict societies that is difficult to address with military forces or current international law-enforcement arrangements. 4.8.2 Radovan Karadzic

Figure 4.4. Radovan Karadzic.19 Radovan Karadzic was apprehended by Bosnian authorities and handed over to the ICTY in 2008, some 13 years after the original indictment. However, it was a change in political leadership, rather than a lengthy and impartial police operation to find Karadzic and bring him to justice, that precipitated his arrest. Prior to this point there had been little domestic political appetite to hand over former senior figures to the ICTY. Indeed, the former generals that were arrested handed themselves in en masse in 2005. The former high representative for Bosnia and Herzegovina describes how Karadzic was secured by political means: In Bosnia we used personally targeted sanctions extensively against those who assisted the network protecting Karadzic, Mladic and the other war criminals freezing bank accounts and placing individuals on the US and EU visa ban list. This was one of the key factors in breaking the nine-year dam of Serb obstructionism in capturing war criminals.20 This led directly to the handing over of eleven senior indicted officials. Radovan Karadzic was then handed over after the change in political leadership in 2008. This impotence of the international community, without extensive diplomatic coercion, to pursue, arrest and prosecute those who have been charged with crimes against 47

humanity demonstrates the need for a supranational body with operational powers to search, pursue, arrest and present to local officials for the purposes of extradition. It is simple for a regime to plead that individuals cannot be found or that the state lacks the resources to commission effective operations to detain individuals, if it is deemed that the handing over of these individuals is not politically acceptable, domestically. However, in the case of the Bosnian conflict, the states in question did not question the indictments. Rather, they engaged in obstructionist activity to delay their arrest and subsequent handing over to the ICTY. However, if the pursuit and arrest is conducted by a supranational body, acting independently if necessary, then once the individuals are delivered to local authorities for extradition, it would be much more politically difficult to prevent handing over the arrested individual to the appropriate international court or tribunal. This may also result in more prompt justice for the victims of crimes against humanity and may even be cheaper to achieve than the type of extensive diplomacy used necessarily by the former High Commissioner for Bosnia and Herzegovina. 4.8.3 Ratko Mladic

Figure 4.5. Ratko Mladic.21 The case of Ratko Mladic exemplifies the failure of the current international lawenforcement system. At the time of writing, (August 2010), Mladic remains a fugitive from international justice despite being one of the most wanted senior officials responsible for war crimes during the Bosnian conflict. This lack of progress demonstrates the need to allow non-domestic law-enforcement agencies to pursue and arrest international fugitives. The longer that individuals such as Mladic are able to continue to live freely with impunity, the more discredited and impotent the international law-enforcement system is seen to be. 4.9 The International Criminal Court

One of the criticisms of the ad-hoc tribunals of Nuremberg, ICTY, SCSL and ICTR is that they were not pre-existing bodies with jurisdiction established before the events that they were introduced to rule over. Karadzic questioned the legitimacy of the court, 48

calling it a "bastardised judicial system" and an instrument of NATO, whose sole intention was to "liquidate" him.22 This legitimacy issue was one of the key justifications for the creation of the ICC. The Rome Statute was signed in 1998 but the ICC did not come into force until 2002 when the required 60 states ratified it in their domestic parliaments. Many commentators doubted whether enough states would ratify the statute to bring the ICC into existence. Hence, the introduction of the ICC in 2002 was a major step forward in the pursuit of an international individual criminal justice system. However, the ICC is in a similar position to that of the UN after 1945 in that it is ratified by a large group of states, 111 states as of March 2010, but is certainly not universally supported.23 The establishment of an individual international criminal justice framework has mirrored that of the development of a framework for international law between states: the PCA provided assistance with the setting up of ad-hoc tribunals between states just as the work of the ICTY, the Special Court for Sierra Leone (SCSL) and the International Criminal Tribunal for Rwanda (ICTR) are ad-hoc tribunals for trying individuals. The work of the PCA was eventually bolstered by a permanent court, the ICJ, just as the work of the ad-hoc tribunals have been bolstered by the ICC. An important distinction to make, however, is that the ICC is not a part of the UN system, whereas the ad-hoc tribunals are. The ICC is seen to have close ties with the UN but is an independent organization in its own right. The ICC came into force some 57 years after the ICJ so the individual international criminal justice system is still relatively immature, and is in need of improvement and development. 4.10 ICC Jurisdiction

The ICC has jurisdiction over War Crimes, Crimes against Humanity and Genocide. It also includes an aspiration to include the crime of Aggression: until the Kampala conference in June 2010, the UNSC was the only arbiter of whether an act committed by an entity constituted aggression under international law. However, at the Kampala conference it was decided that the ICC could decide whether aggression had taken place, in certain circumstances.24 It also provided the possibility that states party to the ICC could opt-out of the aggression addition which may remove a disincentive for some states that are yet to ratify the Rome Statute, to become state parties to the ICC. Regardless of the ethics of allowing asymmetry of jurisdiction among state parties, the opt-out is likely to promote the ratification of the Rome Statute by current non-signatory 49

states, thereby strengthening the international legitimacy of the ICC and the breadth of its jurisdiction globally in relation to the core crimes.25 The Rome Statute details what is included under the heading Crimes Against Humanity. It expressly includes enslavement, forcible transfer of population, sexual slavery and enforced prostitution, particularly in respect to the trafficking of people. Hence, human trafficking falls under the current jurisdiction of the ICC. The Statute also stipulates: Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational [emphasis added] policy to commit such attack.26 By this definition, too, transnational organised human trafficking operations fall under the current remit of the ICC. Indeed, any organised criminal activity that is specified in the Statute lies under the jurisdiction of the ICC. However, human trafficking remains a growing concern, so there must be a problem with getting the jurisdiction to have an effect on the issue. Providing jurisdiction for a problem does not result in perpetrators being pursued and brought before the court. For this, a law-enforcement agency with a similar remit is required.

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Bottleneck choking ICC effectiveness

Figure 4.6. Current Challenges causing a Bottleneck to Progress, and Barrier to Action against Transnational Threats by the ICC. Source: Author. The lack of either element of an integrated criminal justice system leads to impotency as illustrated in figure 4.6. Without police, criminal courts remain empty, no matter what jurisdiction they have. This is the problem with the pursuit of human trafficking internationally, under the auspices of the ICC. The question of referral to the court is an important one. The US FBI refers its cases to federal courts. However, how busy would those federal courts be if there was no agency established to investigate matters under federal jurisdiction? At the moment, the international system lacks an integrated international criminal justice system with law-enforcement, judiciary and detention elements. Indeed, some commentators suggest that nations already have the ability to try pirates due to the existence of universal jurisdiction over piracy. However, there is a reluctance to do so. This is because the convicted pirates, by virtue of hailing from a state that is unsafe will become entitled to refugee status in the prosecuting state, as mentioned in chapter two. This is a disincentive to the use of universal jurisdiction by states, even if the appropriate laws have been adopted on domestic statute books, which is not the case in the UK. However, there is disquiet among lawyers that dealing with pirates in this way is the wrong tactic: 51

... the defense [sic] attorney, Ausma, [for Yusuf, see chapter 2] said the idea of bringing Somali pirates to the Netherlands for trial was poorly conceived. "It's not a solution to bring them here; keep them there and look for a solution there."27 There is no effective court system in Somalia to deal with pirates. This indicates that the current system for dealing with captured pirates, in addition to the complication of refugee regulations post prosecution, results in an incentive to commit the crime rather than as a deterrent. If pirates were to be tried in an international court, refugee status could be removed as a constituent element of the problem. A graphic showing the necessary interrelationship is at figure 4.7.

This graphic illustrates the current difficulty with the ICC. Whilst it has jurisdiction over human trafficking as a crime against humanity, there is little coordinating action or the existence of a global agency with a specific remit to address the crime. Similarly, where there is consensus to deal with terrorism internationally, there is no international court with global jurisdiction to try perpetrators. Therefore, no matter how hard each cog in the mechanism works, the lack of a connection results in international impotency in dealing with the phenomenon concerned. Figure 4.7. Graphic showing necessary interrelationship of global law-enforcement and associated international court for effectiveness. Source: Author.

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4.11

Inclusion of Terrorism and Drug Crimes in the Rome Statute

At the forty-third session of the ILC in 1991, the draft code that was to be considered for the ICC was to include other crimes including ...international terrorism [and] illicit traffic in narcotic drugs....28 These additional elements were dropped in the interests of ratification of the Statute by the maximum number of states. The intention was to return to the question of extending jurisdiction to these areas once the Statute entered into force. Indeed, the Austrian delegation and the Austrian Law School hosted a conference called the Salzburg Retreat in 2006, on the Future of the ICC.29 The retreat aimed to pre-empt the 2009 Review Conference of the Rome Statute and suggest possible extensions to the jurisdiction of the ICC. Indeed, Resolution E of the Final Act of the Rome Statute states: Having adopted the Statute of the ICC, Recognizing that terrorist acts, by whomever and wherever perpetrated and whatever their forms, methods or motives, are serious crimes of concern to the international community, Recognizing that the international trafficking of illicit drugs is a very serious crime, sometimes destabilizing the political and social and economic order in States, Deeply alarmed at the persistence of these scourges, which pose serious threats to international peace and security, Regretting that no generally acceptable definition of the crimes of terrorism and drug crimes could be agreed upon for the inclusion, within the jurisdiction of the Court, Affirming that the Statute of the ICC provides for a review mechanism, which allows for an expansion in future of the jurisdiction of the Court, Recommends that a Review Conference pursuant to article 123 of the Statute of the ICC consider the crimes of terrorism and drug crimes with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court.30 53

This recommendation to include terrorism and drug crimes within the jurisdiction of the ICC, alongside that of human trafficking, would represent a comprehensive list of crimes against humanity that the international community currently faces. However, as Resolution E explicitly recognises, the significant difficulty in achieving this is the lack of consensus on a common definition of the crimes. Indeed, the inclusion of the word terrorism itself is pejorative; calling an act of political violence terrorism is not only a description but also a judgement. If this debate is to move forward it should do so by avoiding the pejorative term and restricting the legal definitions to the criminal acts that terrorists employ, thereby having a greater chance of achieving consensus among nation states on the actions required by the international community to combat those crimes.31 The EAW provides a useful mechanism to resolve this definitional problem and will be examined in the next chapter. All 192 states of the UN have signed the Global CT Strategy resolution. As there is consensus in the international community that terrorism is a scourge that needs to be addressed, the author opines that work should begin on a treaty that establishes the general legal requirements to prosecute transnational criminals and terrorists for the most serious offences and, most importantly, empowers a supranational lawenforcement agency to act independently to investigate, arrest and prosecute individuals, perhaps by expanding the remit of the ICC. This would remove the unnecessary and critically delaying requirement to give primacy to individual state security forces to act on another states behalf.

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References:
Whitney Anne Trettien, Map of Europe after the Treaty of Westphalia in 1648, http://www.whitneyannetrettien.com/arscombinatoria/images/Europe_map_1648.PNG (last accessed 23 June 2010). 2 International Court of Justice, History, http://www.icj-cij.org/court/index.php?p1=1&p2=1 (last accessed 14 July 2010). 3 The World at War, The League of Nations Chronology, http://worldatwar.net/timeline/other/league1846.html (last accessed 24 June 2010). 4 Ian Brownlie, Basic Documents in International Law (Oxford: Oxford University Press, 1995), p. 15. 5 Ibid.. 6 Ian Brownlie, op cit, p. 4. 7 Sir David Veness, Former Under-Secretary General for Safety and Security, Telephone interview conducted 9 June 2010. 8 Ian Brownlie, op cit, p. 4. 9 Famous Trials, Charter of the International Military Tribunal, http://www.law.umkc.edu/faculty/projects/ftrials/nuremberg/NurembergIndictments.html (last accessed 25 June 2010). 10 Kenneth S. Gallant, Criminal Defense [sic] and the International Legal Personality of the Individual, UALR Bowen School of Law, http://dissertations.ssrn.com/sol3/dissertations.cfm?abstract_id=1270365, (last accessed 25 June 2010). 11 Ibid.. 12 Chris Bellamy, Lecture on Human Security, Cranfield University, 13 January 2010. 13 Steve Bradshaw, When Good Men Do Nothing, http://news.bbc.co.uk/1/hi/programmes/panorama/3577575.stm (last accessed 13 July 2010). 14 Heritage, Number of Active UN Peacekeeping Operations, 1948 2006 http://www.heritage.org/static/reportimages/BFE12E1E01B5F537B706598DC584B8A5.gif (last accessed 28 June 2010). 15 International Court of Justice, Statute documents, http://www.icjcij.org/documents/index.php?p1=4&p2=2&p3=0#CHAPTER_II (last accessed 14 July 2010), article 38. 16 David Turns, International Law Barrister and Lecturer, Interview conducted 20 May 2010. 17 UN ICTY, Picture of Drazen Erdemovic at the ICTY, http://www.icty.org/cases/party/683/4 (last accessed 14 July 2010). 18 Drazen Erdemovic, Case Information Sheet, http://www.icty.org/x/cases/erdemovic/cis/en/cis_erdemovic_en.pdf (last accessed 14 July 2010). 19 UN ICTY, Picture of Radovan Karadzic at the ICTY, http://www.icty.org/cases/party/703/4 (last accessed 14 July 2010). 20 Paddy Ashdown, Swords and Ploughshares, Bringing Peace to the 21st Century (London: Orion Books Ltd., 2008), pp. 152-153. 21 UN ICTY, Picture of Ratko Mladic at the ICTY, http://www.icty.org/cases/party/704/4 (last accessed 14 July 2010). 22 BBC News, Profile: Radovan Karadzic, http://news.bbc.co.uk/1/hi/world/europe/8322507.stm (last accessed 15 July 2010). 23 ICC, States Parties, http://www.icc-cpi.int/Menus/ASP/states+parties (last accessed 14 July 2010). 24 Kevin J. Heller, Opinio Juris The Sadly Neutered Crime of Aggression, http://opiniojuris.org/2010/06/13/the-sadly-neutered-crime-of-aggression (last accessed 15 July 2010). 25 Ibid.. 26 Rome Statute of the ICC 1998, http://untreaty.un.org/ilc/texts/instruments/english/conventions/7_4_1998.pdf (last accessed 15 July 2010). 27 Associated Press, Dutch court sentences 5 Somali pirates to 5 years, 17 June 2010. 28 ILC, Draft Code of Crimes History, http://untreaty.un.org/ilc/summaries/7_4.htm (last accessed 15 July 2010). 29 Ferdinand Trautmansdorff, The Future of the ICC, Salzburg Retreat, http://www.unigraz.at/~reisiast/Princeton%20Final.pdf (last accessed 15 July 2010). 30 ICC, Final Act of the Rome Statute transcript, http://untreaty.un.org/cod/icc/statute/finalfra.htm (last accessed 15 July 2010).
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31

Peter Clarke, current non-executive director of SOCA, opinion given in interview.

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Chapter 5: Prospects for the Development of the International System of Law-enforcement


5.1 Long-Term Perspective

The UKs national security strategy suggests that support for the rule of law internationally is an integral part of foreign policy to secure the UK for the future: Overseas, our belief in the rule of law means we will support a rules-based approach to international affairs, under which issues are resolved wherever possible through discussion and due process, with the use of force as a last resort.1 Hence, with the receding threat of inter-state war since the end of the Cold War, and the growing threat posed by transnational criminals and terrorists, it could be argued that support for the rule of law internationally is at least as important as military options in securing peace and security for the global society. Her Majesty the Queen, Queen Elizabeth II, addressed the UNGA for the first time in 53 years on 6th July 2010. In this speech, Her Majesty said: ... For over six decades, the UN has helped to shape the international response to global dangers. ... When people in 53 years from now, look back on us, they will doubtless view many of our practices as old-fashioned. But it is my hope that, when judged by future generations, our sincerity, our willingness to take a lead, and our determination to do the right thing will stand the test of time. ... In my lifetime, the UN has moved from being a high-minded aspiration to being a real force for common good. In tomorrows world, we must all work together, as hard as ever, if we are truly to be, United Nations.2 Her Majestys long range perspective is certainly apposite to this dissertation, and the extensive diplomatic experience Her Majesty has gained during her 57 year reign as head of 16 member states of the UN, and recognised as Head of the Commonwealth by another 38, generates credibility and demands respect from the international community at large. The Queen has the ability to see the bigger picture in a historical context, and has recognised that old-fashioned practices of today will modernise and reform over the coming years. However, when contemplating change to any 57

organization or system, consideration must first be given to the desired end-state of that change. Just as The UNs inception was not an easy political development, and took a number of years before it was almost universally accepted, introducing a new global agency is not something that can be achieved overnight. Even simply altering the remit of existing organizations, like Interpol, the UN Police or Europol, to accept responsibility for transnational crime and terrorism, with operational powers to investigate, pursue, arrest, detain and prosecute, may take years or decades to achieve. However, the fact that the journey ahead may be a difficult one does not mean that it should not be attempted. An ideological motivation is just as valid as a pragmatic one, as an ideal solution has to be the preferred end-state.3 Unfortunately, ideal solutions tend to be more steps removed from the status quo than more limited, pragmatic options. The LoN, and its successor, the UN, were born out of a difficult ideology that took decades to achieve global acceptance. An international system that allows common threats to all states to be addressed by a solitary organization, may take just as long to achieve, but has the potential to be as successful as the UN itself. The difficulty is that democracies are inherently short or medium term in their outlook due to the requirement to be elected every few years. Therefore, ideological motivations rarely result in projects that could take longer than ten years, or two parliamentary terms, to come to fruition. Modern politics lends itself to a series of short term goals. The trick is to try to coordinate these distinct short-term goals into a long-term strategy that combines the pragmatism of short-termism with a long-term vision for the future.

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5.2

The Ideal Vision

Suspects arrested and presented to host nation by the Global FBI, if necessary, for extradition to the international court for prosecution.

This ideal solution ensures that international action by non-state actors is dealt with promptly without the necessity to refer the case to the UNSC. It ensures that the rule of law is the primary recourse to ensure justice internationally, thereby providing a common, comprehensive standard of justice for all, regardless of geography or a requirement to have the resources necessary to pursue the criminals unilaterally, which may be difficult for most countries of the world. It also provides an element of international legitimacy to any action taken by the PICJS due to its independence from the UNSC.

Figure 5.1 Ideal international criminal justice arrangements for the PICJS. Source: Author.

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The ideal vision for the second half of the century is an integrated criminal justice system with its own comprehensive law-enforcement agency that has limited jurisdiction to act independently throughout the globe. Its remit would be restricted to those crimes that are universally accepted by nation states as worthy of attention by the supranational agency, as illustrated in Figure 5.1, in concert with national and other agencies. This agency would be free to investigate as it saw fit and refer its own cases to its own independent court and legal system, which would be established conforming to the highest standards of legal process and human rights. This would bring the highest standards of the rule of law to the global society at large, regardless of national borders. Convicted criminals of this court would progress to a rehabilitation and detention system that, similarly, uses international best practice in the ongoing treatment of convicts to either protect global society from them and/or rehabilitate them into productive members of the global populace. Therefore, the solution is to combat the issue collectively by taking the best elements of each of the major organizations involved in transnational law-enforcement, and combining those elements into a solitary organization, thereby utilising economies of scale and pooling the resources of all nations to pay for it. A difficulty in establishing this agency is the varying levels of permissiveness dependent on existing domestic law-enforcement provision where investigations are taking place. In ungoverned areas, the requirement for protection of investigators may require a level of protection resembling that of a paramilitary organization. However, policemen with machine-guns would be unwelcome in most Western developed nations. Therefore, when in ungoverned areas, this new agency could be free to use whatever force constituents it feels it needs, based on a suitable threat assessment and, perhaps, agreed by a standing declaration by the UNGA. In governed areas, the level of protection would have to be set at a level that is agreed between the organization and the host nation at the outset. This agreement could be made between the organization itself, or by the UNSC and any host nation, in a similar fashion to how JITs are currently established in Europe. The desired end-state for the global society is a comprehensive international criminal justice system including law-enforcement, courts and detention, with a level of independence from nation states. The question remains how does the international 60

system get to that destination? There are lots of route maps that could be used; this chapter explores the route-map options for taking international law-enforcement forward to its ultimate goal of securing the rule of law for the global society. 5.3 Expansion of the Role of Existing International Organizations 5.3.1 Interpol Interpol is already forging ever-closer links with the UN CT Committee. Interpol has only four fewer nation-state members than the UN itself and has an element of independence from nation states that is conducive to extending its remit, as legitimacy of any supranational body will be essential if the required level of ratification by states is to be achieved. Interpol has an established national central bureau in each member state, as a condition of membership, which is already funded directly by police forces.4 Additional funding would be required to extend the remit into investigation and other operational roles. However, the required infrastructure already exists, including a secure worldwide communications system, so the additional costs involved could be relatively small, in comparison to other options. However, there are two distinct difficulties with extending the remit of Interpol. Firstly, Interpols constitution bars the organization from undertaking any activity that is political, military, religious or racial.5 The creation of a supranational law-enforcement agency would inevitably become an international political issue. Whilst political independence would be a desired or even essential attribute of any supranational lawenforcement agency, the creation of it would be politically controversial. This political controversy would be a significant barrier to the amendment of Interpols constitution, in which its independence is guarded fiercely. Second, if Interpol were to gain operational powers, it is possible that some current members of the organization that oppose its transformation would leave the membership. In this case, an organization that currently works well and is almost universally supported, in part because it has no operational powers, would be replaced by a less than fully inclusive organization. This risks those countries leaving the organization who would then no longer have access to the resources and expertise of the current Interpol. Consequently, potentially, these states could become new safe havens for international criminals and terrorists, the denying of which is a key benefit of creating the organization. Hence, the transformation of Interpol may have financial and 61

organizational benefits, but the political situation regarding its constitution and the potential capability gap it could leave behind if it were to transform into an operational organization, are hurdles barring its remit being expanded. 5.3.2 UN Police The UN Police are recognised as being an essential element of the crucial post-conflict stabilization phase as they help to redefine and establish policing standards in post conflict societies, so that faith in domestic policing can be restored. The UN Police has experience of ensuring the compliance with international human rights standards.6 This use of the highest international standards would be essential in the very ethos of a supranational law-enforcement body: any new agency would need to apply the highest international standards and aspire to act as a role model for national forces in due course. Indeed, the UN Police has some limited experience of using operational powers by agreement with the state concerned in the direct aftermath of natural disasters or in post-conflict societies.7 The UN Police is already a constituent part of the UN system, has forged close links with Interpol, the UNODC and the EU, and has thousands of personnel working all over the world. The UN Police recruit from national police forces and recruits must have at least five years policing experience, so there is already a potential for an investigative cohort to be established within the existing organization. Therefore, it seems logical that any supranational agency would be able to take advantage of the existing infrastructure and connections of the UN Police. 5.3.3 ICC The PICJS would need to be associated with a court established to prosecute offenders. The ICC already exists but its jurisdiction is limited to certain crimes. Its jurisdiction could be increased to include other common threats to the global society, as explored in the previous chapter. Now that the first review of the ICC has taken place, further reviews can be held at any time, although there will likely be a number of years between reviews, given that the first was specifically scheduled for seven years after the Rome Statute came into force. Prosecuting transnational criminals in the ICC has the potential for broad international support. The Netherlands recently tried Yusuf, a Somali pirate, in its domestic courts. Due to domestic refugee laws which are common to many countries, these pirates will gain residency status by default, in the nations that conduct their prosecutions, whether 62

that is after an acquittal or a stay in prison. By prosecuting pirates in an international court, it would be possible to deny residency in the state of prosecution as no state would have been responsible for the action taken. The only option left would be to return the individual to his or her home nation. The ICC is internationally acknowledged as being a useful addition to international lawenforcement relating to war crimes. However, the inclusion of the crime of aggression at the Kampala conference in Uganda in June 2010 has catapulted the ICC into the political spotlight. The US, briefly a signatory of the ICC, is now less likely to sign up to the ICC due to the possibility that George W Bush could be charged with aggression in relation to the invasion of Iraq in 2003. This reluctance by the worlds hegemonic power to submit to international scrutiny will inevitably result in the reluctance of other states to submit to its jurisdiction, thereby causing a crisis of credibility. This may also mire the court in political controversy for the foreseeable future, rendering any further extension of its jurisdiction impossible. This may mean that a separate, entirely new court, directly linked to the proposed law-enforcement agency, has a better prospect of gaining widespread support among the international community. This is the pragmatic option favoured by Sir David Veness, former Under-Secretary-General for safety and security.8 The major benefit of this approach is that it divorces any new court from the political wrangling of the current ICC and allows the new institutions founding ideals to stand on their own merits. In due course, the two institutions could work closer together and eventually merge. However, the best prospect of achieving international consensus in the medium term would be a separate court with distinct jurisdiction. 5.3.4 Europol and Eurojust Europol is geographically limited to the EU, although, over the next 50 years, the EUs borders may extend yet further into Turkey and further into Eastern Europe. However, the main value of Europol is its example of nation states sharing sovereignty in the pursuit of serious organized criminals. JITs, whilst far from perfect, have shown that bilateral cooperation is possible across differing legal systems. Indeed, a major lesson learnt from Europol is that practitioners prefer bi-lateral arrangements when sharing sensitive information. The success of bi-lateral arrangements, as opposed to the pooling of information in Europol, indicates that bi-lateral arrangements have the greatest potential to succeed in future. Therefore, the JIT process should be taken as a template by any new agency. Thus, bi-lateral arrangements between the new agency 63

and national forces, which are the most successful mode of cooperation, can be developed while allowing the new international agency to retain overall control of investigations that may require several JITs to be instigated. Another success of the European model is that of the EAW. This has replaced extradition in the EU area and removes political involvement, as states can no longer refuse to hand over citizens charged with a crime within the EU on the grounds that they are their own citizens.9 The ingenious element of the wording of the agreement on EAWs is in its acceptance of a difference in definitions: there are 32 offences, including terrorism, organised crime, human trafficking, arms trafficking, financial fraud, counterfeiting and corruption where it is recognised that different definitions exist within the EU. However, alleged crimes on this list have to be executed by the arresting state irrespective of whether or not the definition of the offence is the same, providing that the offence is serious enough and punished by at least 3 years' imprisonment in the Member State that has issued the warrant.10 If the EU can agree that a universally accepted definition is unnecessary, instead relying on the sentencing tariff in national laws as the deciding factor, then the definitional difficulty surrounding terrorism and drug crimes inclusion in the jurisdiction of an international court can be overcome. 5.3.5 US FBI The US FBI has the most comprehensive international infrastructure of any lawenforcement agency in the world. It has more than 60 international offices outside the US called legal attachs, based in US embassies.11 However, the likelihood of the FBI transforming into a supranational body is remote, given that the US is not a signatory state to the ICC and does not support sovereignty sharing. However, the scale of their operation is vast, with almost 34,000 employees including specialists in almost every area of law-enforcement. This extensive infrastructure is what UK SOCA personnel envy most about their counterparts in the FBI.12 However, other than the US, there is no nation that has the resources to commit to international law-enforcement to the same extent. Additionally, it would be politically unacceptable to most other nations, particularly muslim countries, to have a US agency in charge of international policing. 5.4 A Radical Solution

There is a radical solution: The UN Charter has always had the establishment of its own forces at the core of its being as recognised by Article 43 of the UN Charter. These 64

forces have never been given independent UN control as originally intended under the Charter. It would be difficult to justify a military force to the majority of nations given the peaceful principle upon which the UN is based. However, it may be politically possible to approve the commissioning of a supranational law-enforcement agency as the independent policing body of the international community, given the importance of the rule of law in promoting international peace and security. This was considered in detail in the preceding chapter. However, does the existing Charter sufficiently support the creation of a law-enforcement agency or is an amendment to the Charter required? There are three options: 1. Vote in the General Assembly using the existing Charter as a legal basis. 2. Vote on an amendment to the existing Charter that expressly articulates that a law-enforcement agency is within the remit of the current Charter. 3. Introduce a new treaty for signature and subsequent ratification to introduce a new international criminal justice system. By using option 3, a protracted period of consultation and negotiation would ensue that may delay the establishment of any new system. However, engagement by the broadest membership of the UN may serve to empower those nations, and encourage their support, rather than running the risk of having an agency imposed on the UN membership by the UNSC which could have a detrimental effect on the perceived legitimacy of the PICJS. 5.5 Leadership

Inspiring Leaders Create the Future.13 Indeed, ... the best leaders galvanize their organization into action, move boundaries and transform industries.14 However, does the post of UN Secretary General have the power to introduce the changes suggested in this dissertation? Perhaps not. To articulate a vision of modernity in international law-enforcement, the leadership of a veto-wielding member of the UNSC might be more appropriate. Since the permanent members of the UNSC were instituted, they have been the de facto guardians of world peace and security. However, there is an ongoing debate regarding which countries should retain the power that comes with holding the right of veto. Indeed, the veto had a stranglehold on the UNSC throughout most of the Cold War, rendering the UNSC largely impotent in matters concerning the former bipolar superpowers. 65

The great vision, first articulated by Woodrow Wilson with his fourteen points, in his address to both houses of US government in January 1918, was to set up the LoN. This was in response to the horrors of the First World War. The UN was a great vision driven forward by Franklyn Roosevelt and Winston Churchill, and instituted because of the failure of the LoN to avert the Second World War. Fortunately, the UN has averted a third World War and the threat of inter-state conflict over territory is steadily receding. However, to drive forward a new great vision for law-enforcement as the best guarantee of global peace and security, does the international community have to suffer another cataclysmic event before action will be taken, or an inspirational leader comes forward to drive the change agenda forward? 5.6 Events that Create Political Conditions Conducive to Change

The events of 9/11 resulted in an invasion of Afghanistan by the end of the month of September 2001. Had there been a supranational law-enforcement agency with international legitimacy at the time of the attacks on the twin towers of New York, that had the operational powers to pursue Osama bin Laden and the other senior leaders of Al Qaeda, would NATO still be involved in a fight against the Taleban today? Would the current terrorist threat from home-grown extremism be as significant if the international response, post 9/11, was one that focussed on preserving the rule of law internationally, and bringing those responsible for the atrocity to justice, rather than a military-led action to punish the offenders? Indeed, it is widely accepted that Al Qaeda has moved on from Afghanistan to new pastures in other poorly governed, permissive or ungoverned areas of the globe.15 However, the fact remains that if the international community persists in disproportionate responses that ignore the rule of law then the cycle of reprisals will provide the popular support that terrorist factions thrive on.16 A new integrated and comprehensive supranational criminal justice system is the only way to give pause to unilateral action by a state before it commits to military action. By having such a system, states will no longer be able to take the law into their own hands, as the international community itself will be able to act to enforce the international rule of law, thereby stopping the fighting before it starts. Indeed, the reluctance to share sovereignty over policing has already resulted in a major war during the twentieth century. The assassination of Archduke Franz Ferdinand in Sarajevo by the Black Hand nationalist movement, resulted in the formidable Austro-Hungarian ultimatum to Serbia.17 Whilst there were many demands 66

made in the document, the only significant demand that Serbia were unwilling to accede to was the insistence that Austrian police be allowed to travel to Sarajevo and actively investigate the assassination, on an equal footing with Serbian law-enforcement officials. The Serbian refusal to share sovereignty over the investigation ultimately resulted in war being declared by Austro-Hungary; the web of alliances in Europe further resulted in the commencement of World War One.18 A significant, and probably insurmountable, barrier in the short to medium term to supranational bodies exercising operational powers, is the chauvinism of nation states, according to Sir David Veness, the first Under-Secretary-General of the UN with responsibility for safety and security.19 This pessimism is shared by all the practitioners interviewed. However, chauvinism was overcome with the introduction of the LoN, the UN and the ICC. Therefore, there are politicians and an international political appetite for peaceful solutions and the sharing of sovereignty when it comes to the peace and security of the international community at large. If national leaders continue to do nothing, we shall have to wait until the criminal gangs over-reach themselves with a 9/11 type of outrageous crime. For example, if several European banks are hacked simultaneously so that thousands of Europeans lose their savings, or if a new artificial drug kills thousands of teenagers across Europe in a single night, then overwhelming public demand for action would follow.20 5.7 Big Bang or Piecemeal?

It is difficult enough to introduce a new system that brings together international lawenforcement expertise into one organization. When terrorism is included in that equation the difficulties multiply because separate agencies are involved in the fight against international terrorism. Overt law-enforcement is no longer the only type of agency involved. In the UK, clandestine and covert techniques are used by the British Security Service to combat terrorism. The UKs SOCA is not involved in CT action unless invited as a secondary element in any operation. The difficulty with the involvement of military assets and non law-enforcement personnel in the introduction of any supranational system is that the military guard its secrets much more closely, and there is institutional mistrust that creates a barrier to information sharing and effective coordinated action. 67

In discussions with law-enforcement practitioners in the areas of CT and serious organised crime, it has become clear that it would be easier to introduce a supranational agency to combat serious organised crime than it would be to include terrorism in the remit of any proposed supranational system. Indeed, they contend that there is a greater prospect of garnering broader political support for such a demarcation. However, despite explicitly removing terrorism from the remit of this new agency, the fact that terrorists often source their activities through organised illicit activity means that terrorist organizations would still suffer by default from the focussed activities of this new agency. Therefore, it can be argued that the remit of the new organization should make no mention of terrorism, preferring instead to concentrate on the criminal acts themselves rather than any connection to a political agenda, thereby improving the likelihood of garnering broad support from a greater number of states, whilst allowing individual states to maintain their own CT operations if they consider it necessary. Indeed, the EAW model could be used to define crimes that are under the jurisdiction of the new agency by their common sentencing tariffs. Any crime that is subject to maximum sentences of greater than ten years in a specified majority of nation state members of the UN, could come under the jurisdiction of the new agency. This new agency would then use its own definitions of those crimes in its own court. 5.8 Countering Mistrust

The greatest barrier to effective cooperation is the barrier of mistrust with sensitive information. If we look to history, trust has been gained through adversity and shared values. The strong intelligence relationship shared by the five-eyes nations was fostered during the World Wars and has strengthened over time. Credibility of the trusted organization cannot be gained overnight but must be earned. Also, any intelligence using organization must have something to bring to the party. Any new organization will lack that history and credibility and will need to earn the trust of other established national agencies. However, over time, the specialism and competence of the new organization should be able to offer as much information as it seeks to glean. This is the best and only way to counter institutional mistrust. As the successes of the organization build, and its acquired intelligence becomes useful to other agencies it shares its information with, so it would become trusted in return and then terrorism could be returned to the jurisdictional agenda.

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References:

Cabinet Office, National Security Strategy of the UK:Update [June] 2009, http://www.cabinetoffice.gov.uk/media/216734/nss2009v2.pdf (last accessed 12 July 2010). 2 The British Monarchy, Her Majesty, Queen Elizabeth IIs address to the UN General Assembly, 6 July 2010, http://www.royal.gov.uk/LatestNewsandDiary/Speechesandarticles/2010/AddresstotheUnitedNationsGen eralAssembly6July2010.aspx (last accessed 19 July 2010). 3 Bill Newton-Dunn, longest serving UK MEP in the European Parliament, interview conducted 2 July 2010. 4 Interpol, About Interpol, http://www.interpol.int/public/icpo/default.asp (last accessed 19 July 2010). 5 Interpol, Statement Regarding Interpols Neutrality and Independence, http://www.interpol.int/public/News/2006/IsapStatement20060512.asp (last accessed 19 July 2010). 6 UN Police, United Nations Policing, http://www.un.org/en/peacekeeping/sites/police/index.shtml (last accessed 19 July 2010). 7 UN Police, What UN Police Do, http://www.un.org/en/peacekeeping/sites/police/policework.shtml (last accessed 19 July 2010). 8 Sir David Veness, Former Under-Secretary General of the UN, responsible for Safety and Security, telephone interview conducted 9 June 2010. 9 European Commission, European Arrest Warrant Replaces Extradition between Member States, http://ec.europa.eu/justice_home/fsj/criminal/extradition/fsj_criminal_extradition_en.htm (last accessed 20 July 2010). 10 Ibid.. 11 FBI, About us, Quick Facts, http://www.fbi.gov/quickfacts.htm (last accessed 20 July 2010). 12 Peter Clarke, op cit. 13 John Storey, Leadership in Organizations, Current Issues and Key Trends (Abingdon: Routledge, 2004), p.340. 14 Ibid.. 15 Thom Cookes, Matt Brown and Sally Sara, ABC News, Fewer than 100 Al Qaeda in Afghanistan: CIA chief, http://www.abc.net.au/news/stories/2010/06/28/2938358.htm (last accessed 16 August 2010). 16 Patrick Sookhdeo, Global Jihad, The Future in the Face of Militant Islam (McLean, V.A.: Isaac Publishing, 2007), p. 7. 17 Firstworldwar.com, The Causes of World War One, http://www.firstworldwar.com/origins/causes.htm (last accessed 10 August 2010). 18 David Turns, historical significance, in relation to World War One, of reluctance to share sovereignty over policing emphasised in interview conducted 9 August 2010. 19 Sir David Veness, Former Under-Secretary General of the UN, responsible for Safety and Security, telephone interview conducted 9 June 2010. 20 European Movement, Create a European FBI? http://www.cleg.org.uk/European%20FBI.pdf (last accessed 22 July 2010), p. 15.

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Chapter 6: Conclusion and Recommendations for Further Research


6.1 Why is a Global FBI Required?

The expansion of democracy around the globe has led to the threat of inter-state conflict diminishing. The increasing complexity of interdependence between states that global trade brings, alongside this widespread democratisation of the second and third worlds, has resulted in the threat of inter-state war receding. Simultaneously, that same growth in global trade and international stability has provided greater opportunities for criminal elements to exploit. For these reasons, transnational insecurity and crime are not only a very issue for nation states but a threat which will only increase as the world trades its way toward greater prosperity. The estimated global cost of organised crime stands at approximately one trillion pounds. Within the UK, the Government estimates that over 20 billion of social and economic harm occurs as a result of serious organised crime.1 If illicit trade were measured as a national economy is measured; the global criminal economy would be the fourth largest in the world.2 Organised crime can migrate much more easily across national boundaries than the agencies tasked with its prevention. The ability of the judicial system to pursue criminals across those boundaries is similarly constrained by a reluctance to share sovereignty between states over the crimes concerned. Human trafficking is on the increase, despite slavery being abolished more than 200 years ago. Indeed, there are an estimated 27 million people in modern-day slavery across the world and 800,000 people are trafficked across international boundaries every year.3 Eighty percent of these victims are women and children, each earning some 8,500 per year for their owners, thereby undermining local economies and representing a real threat to the security of individuals susceptible to be caught in the trafficking world. 4 The international nature of drug trafficking prevents any country from combating the trade alone. The paradox of the drugs trade is that, as licit trade prospers, opportunities for smuggling drugs alongside legitimate goods increase. Therefore, if trade is allowed to increase, it is likely that more drugs will get through, placing a greater burden on the infrastructure of the destination state. Hence, this problem will grow without reform to 70

international law-enforcement. The UN estimates that 8% of total world trade is related to illicit drugs!5 The UK Home Office published a drug-costs study in 2002 that estimated the cost of drug abuse in 2000 was 13 - 24 Billion. The balloon effect, where squeezing by law-enforcement in one area simply gives rise to that activity elsewhere, will remain in relation to organised crime of all types while a piecemeal attitude to introducing international policy agreements remains. Indeed, the ease with which criminal and terrorist groups can relocate across international boundaries and utilise international ungoverned space demands a radical rethink of how nation states collectively deal with transnational crime and terror. A step change in international terrorism began when the terrorist attacks on the twin towers of New York occurred on 11th September 2001. The preparations for the September 11 terrorist attacks in 2001 spanned several continents, and so did the effects: the World Bank estimated the reduction of global GDP at almost 1%.6 This has escalated the threat from international terrorism from what could arguably have been seen as regional prior to 9/11, to being a truly global transnational issue. Piracy is also on the increase. However, the current international criminal justice system is unable to act as a deterrent to piracy and this impotence will continue to encourage pirates into the industry. It also provides rich recruitment grounds from which corrupt businessmen can source their pirate navies7. A chief concern is the ability of modern terrorists to move to an area of the globe that is either poorly governed, ungoverned, or where local power is susceptible to bribery and corruption.8 The areas of concern are Sudan, Somalia, the Maghreb in general, Yemen, the Federally Administered Tribal Areas of Pakistan (FATA), areas of Central America and Afghanistan. Bringing ungoverned spaces under the jurisdiction of the PICJS has the potential to deny safe havens from terrorists and organised criminal groups. Indeed, the greatest benefit to the international community of such a PICJS would be that it would extend the rule of law to those parts of the world where intentional or situational indifference to the concerns of other states, and impunity for transnational criminals and terrorists, exists.

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6.2

Strengths and Weaknesses of Existing Structures

Transnational crime and terrorism are rarely distinct; terrorism is often funded by transnational illicit activity.9 Nation states have responded to the growth of transnational crime and terrorism by targeting their national security efforts and including development aid as an integral part of the battle against the phenomena. International agreements also seek to assist nation states to combat the global scourge of transnational crime and terrorism, which are helping to deal with the problem but simply squeeze it from one location to another. A key benefit of Interpol is that it is free from political concerns and allows contact between states law-enforcers where there is no or limited diplomatic relations. However, all information passed to Interpol must be visible to all other members of the organization. This inclusivity is both a great benefit and an achilles heel; 10 in the fight against terrorism, much intelligence is not shared with Interpol by nation states precisely because of this inclusivity.11 The greatest lesson that can be learnt from the European model is that sovereignty can be shared over issues that transcend national geographic boundaries. This gives hope for the future of international policing. Europol and Eurojust have had some success in coordinating bi-lateral investigations in Europe. However, the establishment of a JIT is riven with procedural fault lines through which a savvy and swift criminal can manoeuvre and, while the JIT model is useful, it is too bureaucratic and cumbersome. A major problem with the use of Europol is lack of trust in the system.12 Practitioners prefer bi-lateral arrangements because they are quicker, and personal contacts help to build the trust necessary to feel confident in passing sensitive information. 13 Hence, JITs between nation states and the proposed new supranational agency form a basis for development of the international system but the bureaucracy involved needs to be simplified. Intelligence sharing and divisions of responsibility are significant barriers to effective coordinated international action. Military forces and national intelligence agencies have a role to play in the fight against terrorism. However, military secrets are guarded closely. Hence, coordination of CT efforts tends to be split along the lines of extant military alliances, in particular, the Anglo-Saxon nations five-eyes system is of note. 72

Therefore, the sharing of sensitive information is made more difficult in the fight against terrorism than against organised crime, per se. The problem with having a plethora of international agencies is that none of them assumes responsibility for the overall criminal picture and there is overlap of effort, particularly between Europol and Interpol. This lack of leadership in the fight against transnational criminals allows the perpetrators to prosper by default. 6.3 The International Legal Environment

The failure of the LoN to prevent World War Two led to greater resolve by national governments to ensure that peace was placed at the centre of the UN, which would differ from the League in many ways, not least in that it would have its own standing military forces, under the command of the MSC, and legal framework within which to intervene to maintain international peace and security where necessary. However, those standing forces have never materialized. This is because there is a fundamental aversion to the use of military force by the UN that has its roots in the UNs founding declaration. There has never been the political appetite amongst member states to donate military forces to be controlled independently of those states by the UN. However, the legal instrument to introduce a supranational force exists in the form of Article 43 of the UN Charter. Article 43 is, however, moribund in the modern system.14 The likelihood of the UN introducing its own military forces under this instrument, as initially envisaged in the beginning, is virtually nil. However, the instrument remains and is ratified by all 192 member states as it is a constituent part of the Charter itself. It would be possible to transform the current moribund nature of Article 43: the founding declaration of the UN explicitly states that the purpose of the organization is to promote peace and security, economic and social advancement, and to do so in the common interest.15 Serious transnational crime and terrorism are blights on the international system and justify action in the common interest. The sovereignty principle has begun to be eroded in recent years. In Kosovo, NATO decided that the hitherto primary principle of international relations had to be considered as secondary to the humanitarian needs of the population. This blurring of the sovereignty principle is key to both the future of the international system and to the case for the creation of a supranational law-enforcement agency. 73

There is precedent for the consideration of general principles of domestic national law in the prosecution of international crime. The Erdemovic case at the ICTY showed that it was possible for an international court to establish common principles of criminal law that would be accepted by the majority of states, to hold individuals personally criminally responsible. Radovan Karadzic was apprehended by Bosnian authorities after a change in political leadership. This impotence of the international community, without extensive diplomatic coercion, to pursue, arrest and prosecute those who have been charged with crimes against humanity demonstrates the need for a supranational body with operational powers. In the case of the Bosnian conflict, the states did not question the indictments. Rather, they engaged in obstructionist activity to delay the arrest of individuals and their subsequent hand-over to the ICTY. However, if the pursuit and arrest is conducted by a supranational body, acting independently if necessary, then once the individuals are delivered to the local authorities for extradition, it would be much more politically difficult to prevent handing over the arrested individual to the appropriate international court or tribunal for trial. The ICC is in a similar position to that of the UN after 1945 in that it is ratified by a large group of states, 111 states as of March 2010, but is certainly not universally supported.16 For the purposes of this dissertation, the Rome Statute details what is included under the heading Crimes Against Humanity. It expressly includes enslavement, forcible transfer of population, sexual slavery and enforced prostitution, particularly in respect to the trafficking of people. Therefore, human trafficking already falls under the jurisdiction of the ICC. However, human trafficking remains a growing problem so the jurisdiction of the ICC is having no effect on the problem; without police, criminal courts remain empty, no matter what jurisdiction they have. This is the problem facing the pursuit of human trafficking internationally under the auspices of the ICC. At the moment, the international system lacks an integrated international criminal justice system with law-enforcement, judiciary and detention elements. 6.4 Prospects for Future Development

Altering the remit of existing organizations, like Interpol, the UN Police or Europol, to accept responsibility for transnational crime and terrorism, may take years or decades to achieve. The desired end-state for the global society is a comprehensive 74

international criminal justice system including law-enforcement, courts and detention, with a level of independence from nation states. The EAW has replaced extradition in the EU area and removes political involvement, as states can no longer refuse to hand over citizens charged with a crime within the EU on the grounds that they are their own citizens.17 The ingenious element of the wording of the agreement on EAWs is in its acceptance of a difference in definitions: there are 32 offences, including terrorism, organised crime, human trafficking, arms trafficking, financial fraud, counterfeiting and corruption where it is recognised that different definitions exist within the EU. However, alleged crimes on this list have to be executed by the arresting state irrespective of whether or not the definition of the offence is the same, providing that the offence is serious enough and punished by at least 3 years' imprisonment in the Member State that has issued the warrant.18 If the EU can agree that a universally accepted definition is unnecessary, instead relying on the sentencing tariff in national laws as the deciding factor, then the definitional difficulty surrounding terrorism and drug crimes inclusion in the jurisdiction of an international court can be overcome. The events of 9/11 resulted in the invasion of Afghanistan by the end of the month of September 2001. Had there been a supranational law-enforcement agency with international legitimacy at the time of the attacks on the twin towers of New York, that had the operational powers to pursue Osama bin Laden and the other senior leaders of Al Qaeda, would NATO still be involved in a fight against the Taleban today? Would the current terrorist threat from home-grown extremism be as significant if the international response, post 9/11, was one that focussed on preserving the rule of law internationally, and bringing those responsible for the atrocity to justice, rather than a military-led action to punish the offenders? Indeed, it is widely accepted that Al Qaeda is no longer in Afghanistan but has moved on to new pastures in other poorly governed, permissive or ungoverned states. However, the fact remains that if the international community persists in disproportionate responses that ignore the rule of law then the cycle of reprisals will provide the popular support that terrorist factions thrive on.19 A new integrated and comprehensive supranational criminal justice system is the only way to give pause to states considering unilateral action before they commit to military action. By having such a system, states will no longer be able to take the law into their own hands, as the international community itself will be able to act to stop the fighting before it starts. 75

It would be easier, and potentially more successful, to introduce a supranational agency to combat serious organised crime than it would be to include terrorism in the remit of any proposed supranational system. The greatest barrier to effective cooperation is the barrier of mistrust with sensitive information. Credibility of the trusted organization cannot be gained overnight but must be earned. Over time, the specialism and competence of the new organization should be able to offer as much information as it seeks to glean. This is the best way to counter institutional mistrust. As the successes of the organization build and their intelligence becomes useful to other agencies it shares its information with, so it could becomes trusted in return and then terrorism can be returned to the jurisdictional agenda. This author opines that the cost-effective and efficient solution is one that uses the newly accepted precedent of allowing humanitarian issues to displace the national sovereignty principle. By establishing an international organization with its own jurisdiction to deal with serious breaches of internationally accepted law across international boundaries, the problems of ungoverned space and inconsistent national crime-fighting capacities can be overcome. There is an established international instrument signed by all members of the UN, the Charter itself, that allows for a force to be used under the sole direction of the UN; Articles 43 of Chapter VII.20 It has been politically unacceptable to establish a purely military force under this article but, perhaps with the threat posed by transnational actors, the political landscape could stretch the extant caveats on sovereignty to allow the establishment of a truly independent and, hence, effective integrated international criminal justice system, if it was restricted to crimes that are universally deplored, as espoused in this dissertation. 6.5 Recommendations for Further Research

With the success of the EAW, detailed study on how this template could be applied to the introduction of an international arrest warrant, thereby removing political considerations inherent in extradition, would complement this work. In a time of global austerity, establishing what the quantitative cost-savings could be with better use of coordinated and pooled law-enforcement resources would help to persuade nations that a common agenda is not only ethically supportable but also financially efficient and attractive to support the introduction of the PICJS.

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The refugee status of pirates who are prosecuted in national courts is a problem that encourages participation in piracy rather than acting as a deterrent. Research on a common international treaty that allows pirates to be returned to their country of origin would help to discourage the act of piracy around the globe. This dissertation seeks to provide an overview of what the system should look like, in an ideal world, in 50 years time. Further research on the detailed elements of the route-map to achieving this would help to garner interest in the subject and promote political engagement. 6.6 Concluding Remarks

This dissertation has articulated a compelling case for international organizational remodelling to deal with transnational actors as the prevalent threat to the modern international system. It has charted the evolution of policing which indicates that wider geographic remits are both a natural and logical response to the increasing complexity and modernity of transnational criminals and terrorists. However, it has also established the political difficulties inherent in sharing sovereignty over policing of these issues on a global scale, and recognises that political leadership of the kind not seen since Woodrow Wilson, Franklyn Roosevelt and Winston Churchill in 1918 and 1942 respectively will be necessary to champion the cause of transnational policing reform if the ideal solution articulated in this dissertation is to be realised in due course. It should be achievable within half a lifetime, by the time the second half of the twenty-first century is upon us. However, whether the required political leadership will materialise within this time is open for debate. Let us hope that it will, and that any delay does not result in too much unnecessary suffering as a result.

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References:
Cabinet Office, National Security Strategy of the UK:Update [June] 2009, http://www.cabinetoffice.gov.uk/media/216734/nss2009v2.pdf (last accessed 19 January 2010). 2 European Movement, Create a European FBI? A Police Force to Fight Cross-border International Crime, http://www.cleg.org.uk/European%20FBI.pdf (last accessed 22 June 2010). 3 Polaris Project, Human Trafficking Statistics, http://nhtrc.polarisproject.org/materials/Human-TraffickingStatistics.pdf (last accessed 17 January 2010). 4 Ibid.. 5 Chris Bellamy, Lecture on the Nature of Transnational Security, Cranfield University, 13 January 2010. 6 Cabinet Office, National Security Strategy of the UK:Update [June] 2009, http://www.cabinetoffice.gov.uk/media/216734/nss2009v2.pdf (last accessed 12 July 2010). 7 Ibid.. 8 Tony Collings OBE, Managing Director of private security firm and former British Army senior commander of UK special forces unit dealing with CT operations, interview conducted 14 April 2010 at CT Expo, Olympia. 9 Tom Maley, lecture on terrorist financing, as part of a post-graduate MSc module on terrorism, presented in March 2010 at Cranfield University. 10 Peter Clarke, op cit. 11 Tony Collings OBE, op cit. 12 House of Lords, Select Committee on European Union, Twenty-Ninth Report, http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/183/18306.htm (last accessed 6 July 2010). 13 Peter Clarke, op cit. 14 Sir David Veness, Former Under-Secretary General for Safety and Security, Telephone interview conducted 9 June 2010. 15 Ian Brownlie, op cit, p. 4. 16 ICC, States Parties, http://www.icc-cpi.int/Menus/ASP/states+parties (last accessed 14 July 2010). 17 European Commission, European Arrest Warrant Replaces Extradition Between Member States, http://ec.europa.eu/justice_home/fsj/criminal/extradition/fsj_criminal_extradition_en.htm (last accessed 20 July 2010). 18 Ibid.. 19 Patrick Sookhdeo, Global Jihad, The Future in the Face of Militant Islam (McLean, V.A.: Isaac Publishing, 2007), p. 7. 20 Ian Brownlie, Basic Documents in International Law (Oxford: Oxford University Press, 1995), pp. 15-16.
1

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