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Transnational Crime & the Limitations of Int'l Law - Part 1

Dana E. Brede

**Whose responsibility is it to hold violators of international law accountable?**

We live in a world overwhelmed with devastating news events that span the entire globe. For example, the execution of American journalist, James Foley at the hands of ISIS/ISIL, and the rioting in Ferguson, Missouri.  These events have provided a widespread sense that the world is facing challenges and threats of unprecedented scope, scale and complexity. The rising hostility and conflicts in areas from all over the international community have redefined America’s classification and approach to national and international security. Since the topic of transnational crime and the limitations of international law, non-governmental organizations (NGOs) and intergovernmental organizations (IGOs) is a rather ambitious topic, I will break this into two parts.

From transnational organized crime to crimes against humanity, the international community is inundated with the need for mitigation and accountability. The complexities that exist in the international system have called for modifications and reformation of current international policies to better manage and mitigate the challenges that have impacted nations (states) all over the world. Moreover, the vast complexities and threats that currently exist in the international system have significantly altered international economic, diplomatic, and political agendas that have directly affected multilateral interests and capabilities pertaining to peacekeeping and law enforcement initiatives. At present and in the future, “keeping the peace” in such a system will mean something entirely different than it did prior to the Cold War. Such breaches of conventional international law like drug trafficking, organized crime and terrorism are highlighting the need for major changes to current policy in international organizations.

According to Gérard Araud, President of the United Nations Security Council (February 2010):

[These] transnational threats create roots for the development of regional and global tensions. Drug trafficking and related transnational organized crime encourage money laundering and makes possible the financing of non-governmental armed groups. They undermine the authority of states, spread corruption and weaken economic development. Therefore, they pave the way for radicalization processes that can lead to violent extremism and terrorism. Insurgents and criminals develop close ties to profit from this instability and in some cases create the conditions for such instability.
As a matter of fact, transnational threats are a destabilizing factor in every crisis where the United Nations operates. They take advantage of the weakness of states in conflict situations and make the return to peace and economic development a more protracted and more difficult process for those states1.

TOC

Transnational organized crime, or TOC, transcends cultural, social, linguistic and geographic boundaries, and is completely uninhibited and unrestrained2. In 2009, a research analysis from the United Nations Office on Drugs and Crime (UNODC) reported that transnational crime generates approximately $870 billion each year—an amount equal to 1.5% of the global GDP3. Rather staggering statistics, don’t you think?  

Examples of transnational crimes include:

  • Drug trafficking
  • Human trafficking
  • Smuggling of migrants
  • Illicit trading of firearms
  • Trafficking of natural resources
  • Cybercrime
  • The sale of fraudulent medication4

As cited in the Strategy to Combat Transnational Organized Crime (2014): “Transnational organized crime (TOC) poses a significant and growing threat to national and international security, with dire implications for public safety, public health, democratic institutions, and economic stability across the world. Not only are criminal networks expanding, but they also are diversifying their activities, resulting in the convergence of threats that were once distinct and today have explosive and destabilizing effects”5.

National Security Council on TOC

The National Security Council (NSC) is the President’s principal forum for considering national security and foreign policy matters with his senior national security advisors and cabinet officials. Moreover, the National Security Council is continuously revising strategies to combat TOC as its evolution presents sophisticated and multi-faceted threats that cannot be addressed through law enforcement action alone. TOC networks that present a high national security threat can merit the use of complementary law enforcement and non-law enforcement assets, and may be vulnerable to whole-of-government responses6.

The International Criminal Court

Unfortunately, the current system of international criminal law conventions includes gray area and loopholes that have historically failed to bring the critical organizers of global crime to justice. That being said, chief among the governing bodies in place to help suppress global crime and injustice is the International Criminal Court (ICC). Since its inception in July of 2002, the ICC has aimed to prosecute the international community’s worst crimes. The ICC is the first permanent, treaty-based international criminal court of its kind that can be used as a platform to hold criminals of the most serious crimes in the international community accountable for their actions7. The Preamble of the Treaty notes that the purpose of the Court is to end impunity for the perpetrators of atrocities that deeply shock the conscience of humanity8. Commentators debate whether the ICC’s statute and regulations are too restrictive.

United Nations Security Council

One can hardly mention the ICC without mentioning the UN Security Council. Pertaining to the global threat of terrorism and transnational crime, the Security Council considers it an imperative task to find terrorists and prevent their attacks by exhausting all of the legal authorities and instruments available. In order to lessen the severity of international threats, state leaders must find the appropriate balance by adopting policies which are effective but also respect the democratic traditions which have laid the foundation for America's strength. States often look to the U.N. Security Council as the mediator, the supervisor and the governing authority over the legitimacy of the use of force and major peace keeping initiatives. Their authority and practice is based on articles and statutes within the UN Charter. Consequently, the UN Charter has a loose and widely open-to-interpretation policy that makes the enforcement of international law difficult. This, in my opinion, is quite possibly the greatest shortcoming of international organizations and legal doctrine.

Case Study: Augusto Pinochet—if you are unaware of who he is, I recommend you type his name into your Google taskbar. He is one of the prime examples of how international collaborative efforts were able to lead to the detention of a former Chilean dictator who was charged in Spain and arrested in the UK for crimes committed in Chile.

The International Court of Justice
[The Global Policy Forum]: The International Court of Justice (ICJ) is the UN system’s highest judicial body. The ICJ settles legal disputes between states who must agree to abide by the Court’s jurisdiction before their case is even heard. The ICJ also gives advisory opinions on legal questions submitted to it by UN bodies and agencies. Here, particular emphasis is given to the relationship between the ICJ and the Security Council. Many have suggested that the ICJ should have the power of judicial review over the Security Council’s actions to ensure that they are consistent with the UN Charter and other instruments of international law9. How can the ICJ mitigate threats in the international system when their jurisdiction is restricted?

Collective Security

Implementing plans for collective security requires commitments from all states involved, or the system crumbles into just another instrument of national policy without any authority to back up the rhetoric. United Nations actions do not supersede politics among nations; they become a branch of these politics. The United Nations only mirrors the existing international society10. Collective security, in short, is a fancy way of saying “you have my back and I have yours”, with respect to breaches of peace and responses to threats. In terms of suppressing transitional crime, do you think collective security is applicable?

To weigh in with your opinions and thoughts on transnational crime or to learn more about online criminology degree programs or on-campus course offerings and curriculum—call 877-820-0581 or request more information today.

I am available at your convenience if you would like to e-mail me with topic recommendations for this blog at dbrede@regis.edu.

1Araud, G. (February 2010) Transnational Threats to International Peace and Security. France at the United Nations. Retrieved on August 22, 2014 from http://www.franceonu.org/spip.php?article4317

2N.A. (2014). Transnational Organized Crime. UNODC: United Nations Office of Drugs and Crime. Retrieved on August 21, 2014 from http://www.unodc.org/toc/en/crimes/organized-crime.html

3N.A. (2014). Transnational Organized Crime. UNODC: United Nations Office of Drugs and Crime. Retrieved on August 21, 2014 from http://www.unodc.org/toc/en/crimes/organized-crime.html

4N.A. (2014). Transnational Organized Crime. UNODC: United Nations Office of Drugs and Crime. Retrieved on August 21, 2014 from http://www.unodc.org/toc/en/crimes/organized-crime.html

5N.A. (2014). Transnational Organized Crime: A Growing Threat to National and International Security. National Security Council. Retrieved on August 21, 2014 from http://www.whitehouse.gov/administration/eop/nsc/transnational-crime/threat

6N.A. (2014). Transnational Organized Crime: A Growing Threat to National and International Security. National Security Council. Retrieved on August 21, 2014 from http://www.whitehouse.gov/administration/eop/nsc/transnational-crime/threat

7Yacoubian, G. S. (October 23, 2006). The Most International of International Crimes: Toward the Incorporation of Drug Trafficking into the Subject Matter Jurisdiction of the International Criminal Court. Bepress Legal Series. Retrieved on August 21, 2014 from http://law.bepress.com/expresso/eps/1846

8Janis, M. W., Noyes, J.E. (2006). International Law: Cases and Commentary. (3rd Edition). American Casebook Series. St. Paul, MN: West Publishing Company.

9The International Court of Justice. Retrieved on August 24, 2014 from
http://www.globalpolicy.org/international-justice/the-international-court-of-justice.html

10Encyclopedia of the New American Nation (N.D.) Collective Security - Dilemmas of collective security. Retrieved on August 24, 2014 from http://www.americanforeignrelations.com/A-D/Collective-Security-Dilemmas-of-collective-security.html#ixzz0nHpglrcS