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Transnational Organized Crime and Its Regulatory Challenges

Introduction

Transnational organised crime has come to be recognised as one of the most important issues for lawmakers and enforcement agencies for states around the world. The nature of the crimes is serious, with crimes like human trafficking, prostitution, among the crimes that are taking place in efficiently organised manner across the world. The prevention and control of such crimes require international or global consensus on measures for their effective implementation. These crimes being transnational in nature, multiple jurisdictions are impacted and this becomes a problem from a regulatory point of view, with each jurisdiction wanting exclusive control in the investigation and prosecution for such crimes.

The essay will cover contemporary issues and problems that are involved in the regulation of transnational organised crimes. The essay will argue that there is a need to create uniform rules for the regulation of transnational crimes.

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Transnational organised crime: Issues and problems

Some of the grave transnational crimes include: human trafficking and prostitution, sea piracy, slave trading, and migrant smuggling (Boister, 2012). Trafficking in weapons is becoming a serious issue. This has implications in crime and terrorism. This can include Small Arms and Light Weapons Trafficking (SALWT), which is the more common kind of weapon trafficking. Pistols, rifles, assault rifles such as AK 47s are being trafficked (Bourne, 2014). Recently, a major global operation involving 70 countries and spanning more than four weeks in effective operations, led to the seizure of more than USD 460 million in cash and bearer negotiable instruments (BNIs) and 300 weapons. The operation was coordinated by the World Customs Organization (WCO) and INTERPOL (The Eurasia Review, 2016). This operation is an example of the scale of transnational trafficking as well as the possible achievements in global cooperation in controlling the crime.

Perhaps the most heinous crimes involve transnational human trafficking, including of children, usually for sex crimes (Nicola, 2014). According to several reports, there is a dramatic and exponential increase in human trafficking, especially child trafficking in the period between 1998 to 2008 (Nicola, 2014). These children are subjected to grave and life threatening crimes, and it is very difficult to control such crimes because of the clandestine nature of the crimes.

The US National Security Council, recognises transnational organised crime as a grave threat to “national and international security, with dire implications for public safety, public health, democratic institutions, and economic stability across the globe” ( National Security Council, 2016). The UNODC says that transnational organized crime is big business, which generated approximately $870 billion in 2009 (UNODC, 2016). These are big numbers and are reflective of the scale of the operations as well as the organisations that are involved in organised crime. In the UK, the government realises the seriousness of these crimes. The National Crime Agency, in its 2015 report called transnational organized crime a “pervasive national security threat with far-reaching effects”, that would be seen on the social and economic well-being and international reputation of the UK over a period of time (National Crime Agency, 2015, p. 1).

The implications of this crime is that as the criminal networks expand, and diversify their activities, they create situations that have potential explosive and destabilizing effects on the society. It has become imperative that the governments around the world devise strategies to combat the growth of transnational crimes.

Transnational organised crime: Control and prosecution

The United Nations (UN) has tried to take effective measures for fighting transnational crimes (Redo & Platzer, 2014). The UN entities that are responsible or have some powers in transnational crime control include: UN Security Council, the Human Rights Committee, and the Committee for Elimination of Discrimination Against Women (Redo & Platzer, 2014). The international instruments are more important from the perspective of transnational crime control because treaty obligations are binding on state parties. These treaties involve both substantive (definition of crime) and procedural (procedure to be followed) provisions for crime control (Joutsen, 2016).

The problem is that at this time there are no universal criminal law instruments or truly global conventions that are signed and ratified by all states. This creates a serious problem for the control and prevention of transnational crime as one state’s endeavours may seen to be interventionist in nature, if these measures exceed beyond the state boundaries.

Prescriptive jurisdiction of the state is extended beyond boundaries of the state, but enforcement jurisdiction is only within the state’s boundaries. This creates an impediment in transnational crime investigation and prosecution by a state, unless the other states also cooperate in the investigation. At times there may be a need of extradition to prosecute criminals. This requires a consensus between states, which is hard to achieve in situations where the states involved may not be friendly states and therefore refuse to cooperate with each other. Here, the international law principle of aut dedere aut judicare (extradite or prosecute) should be enforced more strongly in order to obligate states to either prosecute international criminals or extradite them to states against whom the crimes are committed and where they can be prosecuted.

One commentator argues that transnational crimes should be treated as crimes against humanity and prosecuted by the International Criminal Court (ICC) in order to create ease of prosecution (Smith, 2009). The author gives the example of the Japanese Mafia, the Yakuza, to make a case for prosecution by the ICC as the crimes committed by such syndicates include human trafficking on unprecedented scale and murder and related crimes (Smith, 2009, p. 1114). On the other hand, some writers argue for strengthening the domestic process of prosecution so that this can complement the work of regional or global prosecution mechanisms (Oluwatoyon & Babalola, 2014).

There are situations where some powerful states are able to take cross border action as well, presenting a dichotomy with states unable to take such action. An example of this can be seen in the military responses to terrorism by the US (Stigall, 2013). The steps by the US are an indication of the superpower’s desire to conduct missions on its own, or with key allies (more notably, the United Kingdom). This is not the desired methodology for transnational crime control, because it leaves other countries to fend for themselves when they are faced with similar crimes, instead of a concentrated global initiative on the issue. This means that despite the early recognition of the need to develop effective global strategies to prevent and control transnational organized crime, which goes back decades (Vlassis, 1999), very few international measures are actually taken to date.

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Conclusion

Transnational crimes are a serious and grave threat to national and international security. Serious crimes such as human trafficking and cross border terrorism have transnational nature. The need of uniform global measures for combating and controlling transnational crimes is the need of the say. Unfortunately, no such effective uniform global initiatives exist as on date. This has become a serious impediment for crime control and prosecution for agencies around the world. The essence of transnational crime control and prosecution is global cooperation. The recent operation coordinated by the World Customs Organization (WCO) and INTERPOL, which led to the seizure of arms and busting up of many organisations involved in the crime, is indicative of the benefits of global cooperation in transnational crime control.

Bibliography

  • Vlassis, D. (1999). CURRENT PROBLEMS IN THE COMBAT OF TRANSNATIONAL ORGANIZED CRIME. 108TH INTERNATIONAL SEMINAR VISITING EXPERTS’ PAPERS. Tokyo: UNAFEI.
  • Stigall, D. E. (2013). UNGOVERNED SPACES, TRANSNATIONAL CRIME, AND THE PROHIBITION ON EXTRATERRITORIAL ENFORCEMENT JURISDICTION IN INTERNATIONAL LAW. NOTRE DAME JOURNAL OF INTERNATIONAL & COMPARATIVE LAW, 1, 1-50.
  • Boister, N. (2012). An Introduction to Transnational Criminal Law . Oxford: Oxford University Press.
  • National Security Council. (2016). Transnational Organized Crime: A Growing Threat to National and International Security. Retrieved from whitehouse.gov: https://www.whitehouse.gov/administration/eop/nsc/transnational-crime/threat
  • UNODC. (2016). https://www.unodc.org/toc/en/crimes/organized-crime.html. Retrieved from unodc.org: https://www.unodc.org/toc/en/crimes/organized-crime.html
  • National Crime Agency. (2015). National Strategic Assessment of Serious and Organised Crime 2015. London: National Crime Agency.
  • Bourne, M. (2014). Transnational Trafficking in Weapons. In P. Reichel, & J. Albanese, Handbook of Transnational Crime and Justice . New York: Sage .
  • The Eurasia Review. (2016, October 31). $460 Million, Hundreds Of Weapons Seized In Global Counter-Smuggling Operation. Retrieved from eurasiareview.com: http://www.eurasiareview.com/31102016-460-million-hundreds-of-weapons-seized-in-global-counter-smuggling-operation/
  • Nicola, A. D. (2014). Trafficking of Persons and Smuggling of Migrants. In P. Reichel, & J. Albanese, Handbook of Transnational Crime and Justice . New York: Sage.
  • Redo, S., & Platzer, M. (2014). The United Nations Role in Crime Control and Prevention. In P. Reichel, & J. Albanese, Handbook of Transnational Crime and Justice . New York: Sage.
  • Joutsen, M. (2016). International Instruments on Cooperation in Responding to Transnational Crimes. In P. Reichel, & J. Albanese, Handbook of Transnational Crime and Justice . New York: Sage.
  • NDTV. (2015, November 13). UN Security Council 'Helpless' on Enforcing Sanctions Against Terrorism: India. Retrieved from ndtv.com: http://www.ndtv.com/india-news/security-council-helpless-on-enforcing-sanctions-against-terrorism-india-1242942
  • Smith, J. M. (2009). An International Hit Job: Prosecuting Organized Crime Acts as Crimes Against Humanity . Georgetown Law Journal, 97, 1112-1154.
  • Oluwatoyon, B. I., & Babalola, A. (2014, September). INVESTIGATING AND PROSECUTING INTERNATIONAL CRIMES DOMESTICALLY: RETHINKING INTERNATIONAL CRIMINAL LAW. Global Journal of Politics and Law Research , 2(3), 64-76.

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