Recent factors that have contributed to the increasing threat of organised crime
Phil William’s (1991) writing has reflected a focussed consideration of the range of structural factors that seem to have contributed to the creation of a socio-political environment in which organised crime has gained a foothold. Consequently Williams will be used substantially in the following sections due to his comprehensive understanding of this.
Over the last 25 years, global developments have contributed to an increase in organised criminal activity, more than ever before. These global developments include the dramatic advances in transportation systems facilitating organised crime activities, especially the movement of drugs and weapons in and out of countries.
Communication and information systems, too, have been developed to such an extent that organised crime syndicates are able to network their activities to a greater extent than before. Information warfare entails the sabotage of national and global information systems. In this way organised crime moves into the arena of white-collar crime, as financial fraud and embezzlement become added to the list of organised criminal activity. The advancements in information infrastructures also allows organised criminal groups to engage in extortion, their capacity to harm information and communication infrastructures (through hacking) can be used as a potential bargaining tool for extortion or act as a deterrence to inhibit law enforcement successes. (Williams, 1997).
Past trade and travel restrictions have been lifted as a result of the collapse of the Soviet Union. Not only has the high level of social control diminished but organised crime syndicates within and without the former Soviet Union are able to diversify and expand their activities – since many Cold War policies have been rendered obsolete. Lower tariffs, free trade arrangements and the integration of former Soviet Bloc countries into the global trading arena have all contributed to the rise in global trade. Thus world trade has reached an all time high since Middle Eastern, Third World and Eastern European countries are participating more actively in global trade. In fact world economic interdependence is a feature of this. Organised crime syndicates have more opportunities to take advantage of the global trade and financial system. Globalisation is the key to the increasing threat of transnational organised crime. The world is, in effect, shrinking due to technological advances, the world’s population is also rising – more social problems are the result (such as disease, poverty, the huge influx of people across borders), and so too possible increase in the opportunities and reasons for engaging in criminal activity. Especially when that activity guarantees profit, which most organised criminal activity does. (Balzer, 1996).
Due to the relative ease of travel and migration (which governments find increasingly difficult to monitor and control due to the permeability of national borders), ethnic networks have gradually been created, resulting from diasporas. Ethnic networks are an important resource for transnational criminal organisations in that they provide foreign cover; recruits and transnational linkages. Law enforcement agencies have difficulty in penetrating immigrant communities, thus they have an in-built security mechanism against police interference. So Chinese, Nigerian, Italian and Russian diasporas have resulted in global networks whereby criminal contacts and foundations for criminal activity have been created in countries world-wide (Williams, 1997).
The development of the world’s financial infrastructure has also led to a linking of countries, banks and other financial systems, not necessarily under state control. This offers many opportunities for transnational criminal organisations, since the increase in financial business has not been matched by parallel regulatory measures. The global financial market has a large number of access points, trade can be conducted anonymously and rapidly. Origin and ownership is obscured and so too the distinction between ‘dirty’ and ‘clean’ money – as the global financial system provides safe havens for ‘dirty’ money. Not only is regulation lagging but there are also divergent levels of regulation. Thus there are always opportunities for transnational criminal organisations to take advantage of zones which are unregulated (such as in former Soviet Bloc countries, and in developing countries). Transnational criminal organisations merely move their activities from areas where they are illegal and strict regulation is prevalent, to areas where regulation is lapse and the origin of the source of money is irrelevant. Global efforts to counter this is thwarted by the countries without the means and power to engage with the problem (Williams, 1997).
Large, cosmopolitan global cities, connected to one another by telecommunications and transportation links are a haven for criminal organisations. Within many mega-cities are areas in which inhabitants live in terrible conditions. In these alienating circumstances inhabitants may be forced to form criminal social organisations in the form of street gangs, in order to survive. Global cities become the incubators for these gangs to develop into powerful transnational criminal organisations. Global cities not only cause transnational crime development but also maintain them by becoming congenial environments providing anonymity, encouraging survival skills and promoting bonding mechanisms. Thereby facilitating the success of criminal organisations and increasing the opportunities for the establishment of connections among criminal groups (Williams, 1997).
The above factors create an ideal environment for organised crime syndicates to engage in illegal activities and, at times, without the constant threat of police interference. State authority has become contracted as states have lost control of markets. The rise of grey and black markets; the undisturbed flow of illicit goods across various borders; the rise of illegal migration; as well as the development of informal economies all profess to this loss of state control. The more the state attempts to take control over these parallel markets (through law enforcement strategies), the more incentive transnational organisations have to step up their operations. They stand to profit from their ability “to circumvent national and international regulations and supply illicit goods and services with some degree of predictability” (Williams, 1997:18). Concerted state responses are vital, but not always obtainable. The challenges facing law enforcement agencies and organisations are thus formidable, some of these challenges, briefly stated, are as follows
The global nature of organised crime
Organised crime syndicates have largely taken advantage of the process of globalisation. Globalisation, in effect, has contributed to the rise of transnational organised crime. Advances in technology, transportation, information, communication and financial systems has led to transnational criminal organisations making use of these innovations to facilitate their activities. Drugs can be more easily transported, as well as weapons, ‘dirty’ money and any form of contraband. The very developments that have contributed to the transnational functioning of modern (legitimate) corporations have also contributed to the rise of the black market and emergence of transnational criminal organisations.
The effects of globalisation and the proliferation of advanced communications and, for example, the development of cyberspace have resulted in states not being able to maintain a high level of authority. The advances in technology have largely diminished state authority as many more avenues have been created to facilitate illegal activities, at times, largely beyond the control of state authority (Williams, 1997).
The challenge to law enforcement is to keep pace with the increasing sophistication of transnational criminal organisations. There is also a need to develop ways of eliminating or containing illegal cyberspace activities. Law enforcement agencies and organisations have to decrease the gap in sophistication between them and organised crime syndicates, not only through advances in technology but through concerted efforts and state co-operation.
STRATEGIES EMPLOYED BY THE USA, UN AND EUROPEAN UNION TO COUNTER ORGANISED CRIME
The following section will be devoted to the strategies adopted by the law enforcement arena to contain the organised crime and related drug trafficking threat and so the methods adopted to face the new challenges that organised crime has to offer. The USA, UN and European Union will be used to represent international efforts to do this.
Organised crime syndicates in general weaken institutions concerned with public security (such as the police and judiciary) due to their capacity to corrupt officials and/or intimidate those who are as yet, not corrupted. Their activities have far-reaching consequences, domestically and internationally – they may block legislation and treaties and weaken economies due to the vast sums of money moved in and out of countries, uncontrolled. The emphasis once again is on the damage that organised syndicates cause – globally. It is of no use to address a global problem without the co-operation of the countries involved.
The drug problem, too, is of major concern, as the UN World Drug Report (1997:9) aptly states:
“No nation, however remote a corner of the globe, is immune to the adverse consequences of drug abuse and trafficking…”
The drug problem as one instance of organised crime, really is a worldwide phenomenon and worldwide problem. Even though specific countries may not have, for example, drug trafficking problems per se, other countries directly involved in the problem will suffer economic distortions and possibly effect the worldwide economic situation and hamper international drug enforcement treaties.
The USA has by far emphasised the international security threat that organised crime poses, it has also realised the serious threat it has to US security in particular, reflected by the current American President,
“We have to combat those who would destroy democratic societies, including ours, through terrorism, organized crime and drug trafficking…organized crime now plagu[es] the former Soviet Union, so much that one of the first requests we get in every one of these countries is, send in the FBI…the drug cartels…threaten the open societies and fragile democracies there – all these things we know can emerge from without our borders and from within our borders.” (Quoted in Winer, 1997:44).
As far as the drug trade is concerned the USA is the leader in international drug enforcement. Nadelmann (1993) points out that this is but one area in which the USA has declared its leadership (other areas of leaderships include providing intelligence, military and economic support as well as providing financial aid to countries in need, also in the struggle against remaining communism and terrorism). In fact US government activities include involving anything that has a political or regulatory interest. For example, the Drug Enforcement Agency (DEA) and Federal Bureau of Investigation (FBI) have increased their transnational responsibilities by opening offices in many countries, the US Customs Service has conducted courses in border, air and seaport control for various countries, including South Africa and the Southern African region. The US Marshals service has offered technical assistance, specifically to South Africa, in terms of the witness protection programme, and the DEA has held drug enforcement seminars and, in South Africa, helped SANAB (South African Narcotics Bureau) establish a database in this field (Callahan, 1997). The FBI has also been responsible for training foreign police. Thus, the DEA and FBI are seen to be the most prolific in the fight against drug trafficking specifically and organised crime more generally.
As Nadelmann (1993:129) states:
“The DEA’s principal objective, broadly stated, is to stem the flow of drugs to the United States, yet it has devoted considerable efforts to assisting foreign law enforcement agencies in countering drug trafficking that has little or no impact on the United States.”
A unique feature of the DEA is that its agents are beholden to the US and responsible to the US ambassador, when abroad, yet its instruction and mission are authorised by the UN and international conventions. The main role that the DEA plays is that of liaison. The DEA was in actual fact the first transnational and nonimperial police organisation ever (after being the successor of the Bureau of Narcotics and Dangerous Drugs in the 1970’s).
Since the late nineteenth century the USA has promulgated transnational controls. Factors, (besides the explosion in international drug trafficking in the early 1960’s), which have led to a globalisation of US law enforcement are economic and security responsibilities that the USA adopted after World War II. During the 1940s and 1950s military criminal investigative agents were sent abroad to police the many American military personnel stationed overseas. A police training programme was created and the Customs Service, the FBI and Secret Service all asserted their efforts overseas during this time.
During the 1960s, the rapid nationalisation of American law enforcement took place parallel to crime attaining a national political status (Nadelmann, 1997). In the early 1970s political policies were adopted by the likes of American presidents such as Richard Nixon – and his extension of the war on drugs to other countries – in the beginning of the 1970’s (Ronald Reagan and George Bush following suit in the 1980’s).
The late 1970s 1980s and 1990s saw a rise in extradition and mutual legal assistance relations with foreign governments. The Office of International Affairs (OIA) and the Office of Law Enforcement and Intelligence (LEI) (both created in 1979), in this regard, assumed leading roles. Treaties with foreign countries were signed as a result of these efforts and improved co-operation in drug and securities law enforcement was at the top of the agenda. After the 1980’s US jurisdiction was spread to terrorist acts against American citizens overseas. But it has been the real threat of drug trafficking by organised crime syndicates and the American engagement with this threat that has led to a substantial internationalisation of American organised crime and drug enforcement policies, laws, treaties and the like. A few decades ago this need for a globalised approach was non-existent – the nature of the drug trafficking problem today is such that a globalised approach is necessary. Not only a globalised approach but an adapted globalised approach – adapted to keep ahead with evolving drug syndicates and organised crime technology with regard to drug trafficking, but also smuggling in general, money laundering and computer fraud. Other developments that have taken place in the last few decades of US international criminal law enforcement include the creation of an office devoted to international enforcement matters (handled by the Securities and Exchange Commission). The US national central bureau of Interpol and federal police agencies have expanded their extraterritorial activities. US military forces have become increasingly involved in international criminal law enforcement. Congressional hearings have stimulated incentives to confront the transnational drug trafficking problem and other criminal problems. (Nadelmann, 1997).
US law enforcement agencies such as the Drug Enforcement Agency (DEA), Federal Bureau of Investigation (FBI), Internal Revenue Service (IRS), Immigration and Naturalization Service (INS) US Customs Service, US Marshals Service and the Secret Service to name a few, have become increasingly involved in the international activities of syndicates specifically involved in the drug trade.
However the enforcement of internationalised organised crime and drug enforcement activities are beset with problems, particularly with regard to the state sovereignty of foreign countries. US agencies working abroad may not have authorisation from foreign agencies to effectively promote their strategies. Foreign countries may inadvertently harbour criminals, in virtue of their policing inadequacies and economic opportunities. American enforcers’ efforts may, too, be thwarted by political problems. The USA is faced with challenges, which include more specifically, factors such as the following:
Governments that are hostile, politically, may not be co-operative, even those governments that do co-operate may nevertheless hamper progress by virtue of conflicting viewpoints. There is a need to work out the fundamental differences in the styles of law enforcement as well as convince foreign governments that change is necessary if any effective containment of organised crime is to occur. These and other problems related to procedural, cultural and institutional differences slow co-operation between governments. Consequently the US agencies, confronting organised crime and drug trafficking, have had to evolve their means of creating co-operation and infiltrating drug syndicates. Nadelmann mentions that the USA has achieved this by adopting unilateral measures such as enforcing laws extraterritorially through domestic legal processes; keeping track of foreigners within American borders; compiling records of domestic transactions, and so forth. Despite this, unilateral measures are fraught with difficulties particularly with regard to tense foreign relations and lack of sovereign powers. Therefore, bilateral and multilateral agreements are necessary. Bilateral agreements between two states or multilateral agreements globally, facilitate co-operation against transnational crime. However multilateral agreements promote harmonisation. Part and parcel of this harmonisation is:
Regularisation of relations between law enforcement officials of different countries.
Accommodation among law enforcement systems that retain essential differences.
Homogenisation of law enforcement systems towards a common norm (Nadelmann, 1993).
Due to American efforts, a global Americanisation of foreign systems has occurred:
“The internationalisation of US law enforcement during the twentieth century has shaped the evolution of criminal justice systems in dozens of other countries”. (Nadelmann, 1993:11).
Foreign countries in response, have signed extradition and law enforcement treaties, hosted American agents, adopted American approaches and basically, followed in America’s footsteps.
Gerber and Jensen (1998) point out that although America has not solely spread the war on drugs and transnational crime it has taken the lead – its approaches are dominant. The transnational nature of the drug trafficking business makes its unavoidable for countries not to establish some control mechanisms. A helping hand in this regard is that of the American mass media – cultural diffusion of the American drug control policy has thus exposed the world to the American manner of interpretation.
But it’s interesting to note why America has been relatively successful in the promotion of its policies. In this regard Gerber & Jensen, (1998) mention three possible reasons:
Firstly, they point out that state managers will attack enemies that are politically safer to attack. Illicit drugs and organised crime, in general, is a useful “enemy” – even though there is a kernel of truth to the claims made about drugs and other organised criminal activities, the issue is nevertheless sufficiently ambiguous to attack without leading to political losses.
Secondly, the collapse of the Soviet Union led to the American military being available for new missions (that is, combating drugs) and more importantly, left the USA as the only superpower – thus able to enforce its ideology on other countries without interference from Soviet expansionism.
Thirdly, the USA has become the police force of the world, due to the necessity of the transnational co-ordination of law enforcement against drug trafficking and transnational organised crime.
The US has law enforcement representatives in the most foreign countries, it also has a multitude of law enforcement agencies, more so than any other country. The US has demonstrated the most powerful influence on criminal laws, procedures and investigatory tactics – it is the first country to create a global police presence and thus its role in the containment of transnational organised crime has been invaluable (Nadelmann, 1997).
The strategies employed by American agencies and organisations have been directed at global co-operation and the sharing of initiatives to combat organised crime. The United Nations, too, has attempted to establish mutual agreements between countries so as to unite them in the struggle against organised crime.
The United Nations
The UN is a key player in the fight against organised transnational crime and drug trafficking, it is a global body incorporating many countries, thus perpetuating state co-operation. On the policing level its Security Forces also reflect a new world consensus in terms of policing strategies. Its tireless efforts in the fight against organised crime have led to the establishment of bilateral, co-operative agreements based on mutual respect between foreign countries thus actively attempting to globalise international efforts against organised crime.
The UN approves funds, accepts resolutions, conventions, protocols and such, through the UN General Assembly. Governments relate their opinions or views through this UN body. For example, in the Economic and Social Councils Commission on Crime Prevention and Criminal Justice (International Co-operation in Combating Transnational Crime, 1998) it is stated that the General Assembly approved a Global Action Plea against Organised Transnational Crime and that it urged countries to implement the plan. The General Assembly also asked the Commission to consider an international convention against organised transnational crime. Thus the General Assembly forms a vital function within the UN, generally and specifically in terms of organised crime prevention and co-ordinating global activities in this regard.
The Economic and Social Council (ECOSOC) is a key structure – this body is concerned with policies regarding drug abuse control and co-ordination, and it also makes recommendations to governments. From this, the International Narcotics Control Board (INCB) is responsible for implementing and monitoring UN Drug Conventions. It is an independent body and is also responsible for ensuring government compliance and assisting governments where necessary (particularly with regard to treaties). Thus it corrects weaknesses and boosts capacity in national and international control of illicit drugs. The Commission on Narcotic Drugs (CND) is a functional commission of ECOSOC and aids ECOSOC in the supervision of international conventions and agreements (that is, ensuring their application). New conventions may also be prepared by the CND, and it is the central policy making body of the UN (World Drug Report, 1997).
From these two bodies (the INCB and CND) one derives the United Nations Drug Control Programme or UNDCP which was established in 1991. The UNDCP promotes change and assists the progress of international co-operation with regard to drug control. Thus advising and aiding governments and agencies on the issue of the international drug control treaty system. Some of the functions of this system are: To be prepared for phenomenon which could worsen illicit drug production and trafficking, and so deal with it timeously; to aid the INCB and CND; to offer technical assistance and co-operation to governments so as to aid governments with regard to plans of action in a joint operations venture (World Drug Report, 1997). Also, the UNDCP may actively provide collaboration between two or more parties, particularly when these countries need an independent collaborator due to political tension. The result of such collaborations could be the establishment of bilateral agreements and multi-faceted, sub-regional or regional co-operation arrangements (World Drug Report, 1997).
The UN also facilitates MoUs (Memorandums of Understanding). Such memorandums may be intergovernmental, or between governments and agencies (such as police or customs agencies) or between governments or agencies and commercial organisations (such as airlines). Such MoUs are not legally binding and not necessarily ratified by national parliaments.
“…derives from the existence of convergent interests between two countries with similar problems and the political will to deal with them.”(World Drug Report, 1997: 176).
Other technical assistance and resolutions offered by the UN and outlined by the Commission on Crime Prevention and Criminal Justice is that of the implementation of the Political Declaration and Global Action Plan against Organised Transnational Crime which was adopted by the World Ministerial Conference on Organised Transnational Crime in Italy in 1994; also (in 1990’s) the UN Crime Prevention and Crime Justice Programme and its contribution to the implementation of the UN New Agenda for the Development of Africa.
The Conventions on Mutual Legal Assistance and on Extradition of the Economy Community of West African States also provide for forms of international co-operation. The Declaration and Plan of Action on Drug Abuse and Illicit Trafficking in Africa was adopted at Cameroon in 1996 by the Organization of African Unity (OAU). But most importantly the Crime Prevention and Criminal Justice has provided advisory services and technical aid to African States. Due to efforts of the UN, a proliferation of extradition and mutual legal assistance treaties has resulted, thus improving and encouraging global co-operation in the war against drug production trafficking and abuse (Nadelmann, 1993). Also the World Drug Report (1997) itself has clarified many blurred areas of the drugs issue by analysing exactly what is and is not known, and by giving an overview of the global drug situation. It has, in this regard pointed out the major organised crime groups (involved with production and distribution) throughout the world and also their connections across the globe. These syndicates consist of Cocaine Cartels in Columbia and Mexico; Triads – worldwide; Yakuza, mainly operating in Asia; Cosa Nostra – worldwide; La Cosa Nostra in New York and the USA; and Mafia groups in former Eastern Bloc countries. (World Drug Report, 1997). More recently (1998) the UN Draft Convention for the Suppression of Transnational Organised Crime, attended by approximately 50 countries, has made attempts to create an international convention against organised crime.
The European Union
Along with the ‘Americanisation’ of law enforcement is the ‘Europeanisation’ of policing (Van der Spuy, 1997). This is a complex and ambitious goal as European countries are largely diverse in their organisational structures and attitudes or viewpoints (van Dijk, 1991). The UN is engaged with the attempted collaboration of different European countries – but due to different needs different countries want different kinds of treaties (from bilateral to multilateral treaties) – thus despite British and American encouragement – progress in the area of negotiation has been slow. (Dorn & South, 1991)
The UN points out two important international agencies in drug control – Interpol (International Criminal Police Organisation) and the World Customs Organisation. Interpol comprises 175 member states and encourages co-operation and the exchange of information and the heightening of abilities to control organised crime and specifically drug trafficking. Interpol also has a responsibility to increase the difficulty for fugitives to find haven in Europe, so an international wanted notice issued by Interpol, alerts (or should alert) police agencies in the countries wherein it operates. Interpol also holds annual meetings and regional conferences, as it is an international professional association for police. In these conferences information exchange is possible and thus provision is made for the spread of new police methods and techniques. Consequently, through Interpol, the US government has access to the means to internationalise law enforcement against organised crime syndicates (Nadelmann, 1993)
However more specific to Europe, is Europol created in 1995 as a result of the Trevi agreement in 1975 between European states, and the Schengen Convention in 1985 (Van der Spuy, 1997). The International Criminal Police Review of 1989 aptly summarises the history of European Unity in terms of police co-operation: the European Economic Community was founded in 1957 and composed of 6 countries, its goal was to create a common market. A treaty was made in 1957 for this purpose and revised by the Single European Act of 1987 that had its main objective, politically, of recommending the creation of a European Union (however at the time no account was made for international police co-operation). The Trevi groups came about before the Single European Act came into force and it accounted for the lack of mention of international police co-operation as not only was it the first intergovernmental counterpart of Interpol but it directly addressed the need for collaboration. Thus, for example, top-level FBI officials have attended Trevi sessions in which improved co-operation against (amongst others) drug trafficking and organised crime is arranged. Five European Community Countries with a view to facilitating police co-operation and mutual assistance, co-operation and communication by abolishing border controls and harmonising drug-related laws and regulations created the Schengen Agreement. The Schengen group countries (forming the European Union) have consequently made contributions to police co-operation of external and internal borders of the European Union.
Extradition arrangements also exist in the European Union with most states being part of the European Convention on Extradition (Benyon, Turnbull, Willis, Woodward & Beck, 1993). Consequently the ideology of a European identity seems to be what is striven for with the attempted introduction of a single market and political economy and specifically legal integration. This has had an effect on policing strategies:
“…one of the key public rationales for intensified police co-operation has been the prospect of abolition of border controls between member states of the Union… [which] will undermine the traditional filter function of frontiers, and remove a major impediment to cross-border criminality…” (Helsenton & Thomas, 1995:190).
The European experience is similar to that of the obstacles faced by the Americans. In that a standardisation of criminal justice systems and co-operation among the policing institutions is difficult, the sovereignty of state could be threatened by a law enforcement system independent of the political sphere of the state. Thus ‘police independence’ and ‘professionalism’ might mask a police system characterised by a resistance to democratic control – alike to an emerging power bloc (Van der Spuy, 1997:48).
Also Europe is much more diverse, culturally, in that attitudes towards ‘crime’ differ from state to state:
“…states remain infused by different cultures sensibilities and criminal justice policies.” (Ibid. p47).
So not only is it difficult for US specialised agencies (like the DEA) to effectively gather intelligence on drug trafficking in alien systems, but European states themselves are struggling for a consensus (Nadelmann, 1993).
However, this is an evolving situation and consequently new areas of development are occurring, such as an increase in contact due to the consolidation of police networks and an exchange of policing artifacts. The joint forces and social interaction of international and regional policing areas may prove beneficial considering what they may have to offer each other (Van der Spuy, 1997).
In summary, the strategies employed by the USA, UN and European Union have been both on the level of politics and policing in an attempt to develop strategies to confront and contain organised crime.
Consequently these strategies have ranged from attempts at public relations to practical developments, such as increased policing co-operation by means of shared intelligence and databases. All these strategies have been made in an attempt to confront the challenges organised crime has to offer. And by doing so, increased effort has been made to expose the activities and priorities of organised crime syndicates; to create unfavourable environments and comprehensive strategies to curb these activities; and, in general, to globalise these attempts so that a concerted effort can be made to normalise these approaches. The best means to contain organised crime would be to simultaneously address the issue on a political and policing level, and thus it has been shown that attempts have been made in this regard – to expose the organised crime phenomenon as a global problem and common enemy to all countries.
The following sections will look at the South African engagement with the organised crime problem and its means to effectively employ strategies – both on a legal and policing level – to contain it.
Criminals have expanded their networks beyond national boundaries in order to maximise the returns on their illegal activities. This expansion has made it very difficult for weak national law enforcement agencies to control or investigate the resulting crimes. Legislation as a deterrent is only effective if it is regionally accepted and if it is actively enforced. The absence of such legislation has detrimental social, political and economic consequences. States affected by corruption become targets for drug traffickers, money launderers and organisations that encourage lawlessness. In the process, the rule of law and the democratic process are undermined. The recently adopted SADC Protocol Against Corruption is an indication that the political will to fight corruption is growing. The next step is for national parliaments to incorporate the protocol into national laws.
Definition and nature of organised crime
Organised crime is a term that has proved to be difficult to define exhaustively. Some authors have suggested that it is both impossible and unnecessary to define the term fully.
When most people think of organised crime, their point of reference is what is seen in gangster movies, dominated usually by an Italian ‘Godfather’. In movies one sees the criminals in a ‘family’. For people to become part of the ‘family’, they must pass certain ‘tests’. This ‘family’ is therefore organised into a network of people primarily focused on obtaining profits illegally through committing serious crimes with great social, economic and societal consequences. This has been generally accepted as the definition of organised crime, which usually manifests itself and is carried out by the use of corruption.
It is widely agreed that corruption is the misuse of power, office and authority – be it in the public or private spheres – for private gain. Bribery, fraud, extortion, nepotism and favouritism are among the many forms that corruption takes. In Southern Africa, various legal instruments operationalise the term corruption in a manner that is consistent.
In short, the facets of organised crime therefore include the following:
the criminal activities are ‘organised’ as distinct from ‘isolated’;
the organisation is self perpetuating;
the motive is financial gain and could be political;
the goals are particular business activities which stifle outside competition;
the top men are insulated from the criminal act; and
the activities promote fear and corruption.
The New Collins Concise English Dictionary defines legislation as the act or process of making laws. Legislation can also be defined simply as the laws so made.
Legislation is the expression of the will of a people or, in a national context, the will of the sovereign. In a democracy, this becomes the will of the people expressed through those elected to make laws.
There are at least two dangers that law-makers frequently succumb to in coming up with laws. The first is making a law that pleases a noisy minority but which does not have the support of the majority. This is often the case in situations where the law may protect the powerful who have the means and ability to engage in organised crime.
The second danger is of law makers passing laws without adequate provision for their enforcement. As observed by Matsheza and Kunaka (2000),1 Southern African countries have adequate pieces of legislation in their national laws to deal with corruption; the problem is the enforcement of this legislation.
Zimbabwe, for example, has the Prevention of Corruption Act. President Mugabe is quoted as having said he suspects that some of his cabinet ministers are corrupt, but nothing has been done since this admission. This indicates that political will is an important facet of legislation.
For legislation to be of practical value, it is therefore important that the rule of law be adhered to in the strictest sense of the word. No one should be above the law.
If this is not the case, then there is no need to talk of legislation being of any practical value. Organisations engaged in organised crime tend to be very powerful and, as such, can easily manipulate law enforcement agencies. It is important to empower sufficiently these agencies so that they can enforce the laws.
Organised crime, human rights and sustainable human development
The impact and consequences of organised crime, including corruption, is fully appreciated if they are seen in the context of human rights, good governance, democracy and sustainable human development.
“Human rights and human development share a common vision and a common purpose … to secure the freedom, well-being and dignity of all people everywhere.”2
Included in the freedoms are:
- freedom from want to enjoy a decent standard of living;
- freedom from fear of threats to personal security, from torture, arbitrary arrest and other violent acts;
- freedom from injustice and violations of the rule of law; and
- freedom for decent work without exploitation.
Several national, regional and international human rights instruments have been put in place to protect and promote the enjoyment of these rights and to provide the legal and institutional frameworks to fight organised crime and corruption. Among these instruments are national constitutions that protect citizens’ human rights through bills of rights; the Universal Declaration of Human Rights; the United Nations (UN) Convention on Civil and Political Rights; the UN Convention on Economic, Social and Cultural Rights; and the African Charter on Human and People’s Rights.4
All these human rights instruments are intended to ensure that people enjoy the right to life, liberty, dignity and worth. There is a clear symbiotic relationship between sustainable human development, human rights, good governance and democracy. These issues are indivisible as human development cannot be sustained without good governance, the respect and enjoyment of human rights, adherence to principles of democratic governance and the upholding of the rule of law and the fair administration of justice.
It is important to note that the Southern African region is characterised by high levels of illiteracy, high unemployment and under-employment, as well as gender and racial inequalities, thus making it difficult to attain satisfactory levels of sustainable human development. Organised crime and corruption contribute significantly to negate efforts aimed at protecting human rights, adherence to a governance process anchored on ethical and professional conduct and standards and respect of the rule of law as well as fair administration of justice.
The consequences of organised crime are far reaching. These can be looked at from a social, economic and political perspective.
The impact on society of drug trafficking is very destructive. Promoting drugs ultimately creates further crime, though the exact links are still debated. With time, drug users become addicted. This addiction has health implications for those involved and consequently places a burden on a country’s health care system to rehabilitate and to treat these people. Drug addicts may become unemployed, leading to a financial burden on society to look after them. As a result of this addiction, drug abusers turn to petty crime like theft and burglary in order to finance their habit. It can also lead to a cycle of crime, including prostitution. As organised crime generates high profits, younger members of society are encouraged to join in, in order to earn these ‘easy’ profits.
Economic crime is today a global and omnipresent phenomenon, even though countries may define the concept differently in their respective legislations. It is highly organised and has become more international than ever before. Not so long ago, criminal justice was exclusively a national issue. Nowadays, when an increasing number of countries openly admit to a growing volume of estimated losses due to economic crime, ‘one-rider’ policies no longer work. Nation states have become too vulnerable.
The revolutionary technological developments of recent years have inadvertently facilitated the emergence of organised criminal networks that move across boarders in order to maximise profits. Modern criminal organisations have accrued considerable financial power, enabling them to juggle human and capital resources. The criminal economy is a rationally organised activity capable of producing wealth and power in the same way as any other business and, more often than not, more quickly than legitimate businesses.
Transnational economic crimes are complex in nature especially as they are often combined with legal activities. This is what makes them difficult to trace and quantify. To date, no systematic method of accounting for these crimes exists at national, regional or international level.
Corruption is closely related to money laundering. This is because at some stage, proceeds of the former need to be cleared through the financial system to re-enter the mainstream economy and appear legitimate. The process of knowingly concealing the source of illegally obtained funds for subsequent legitimate use is called money laundering.
Action against money laundering is difficult. Perpetrators often mix ‘dirty’ money with proceeds from legitimate businesses. Commercial secrecy, banking confidentiality and off-shore legislation continue to place obstacles to investigations. If the money has been sent overseas, international co-operation to trace it is required. One laundering action was reported to have taken 45 seconds to complete and 18 months to investigate.
Money laundering is difficult to detect and this makes it difficult to measure, distorting economic data and complicating governments’ efforts to manage economic policy and stability.
In view of the illicit operations of organised crime, the businesses are not declared for tax purposes. The amount of revenue that a country loses from non-taxable profits is impossible to estimate.
The main political problem created by organised crime is that because of the vast profits made, criminals have opportunities with which to by-pass the democratic process. Tymon Katlholo, Director of the Directorate on Corruption and Economic Crime in Botswana, aptly concluded:
“Corruption is … evil. It undermines democracy and the rule of law. It impedes developments and weakens social stability. It leads to inadequate social services, reduces productivity and encourages laziness. It leads to a sub-standard product especially when through bribery a construction or supply contract is awarded to a person not capable of the job. Hence there is a massive effect on the public purse.”5
The World Bank reiterates that sustainable economic development cannot occur without the rule of law. Accountable systems of governance are necessary to provide the building blocks for economic and human development. Without them, development will stall or be distorted.
The rule of law – the foundation of civilised society – is the first to crumble when corruption is tolerated. Growing lawlessness strains the state’s ability to provide security for citizens. An increase in crime may further erode the state and its institutions. Where the state lacks the capacity to enforce the law, organised crime can undermine and replace the authority of the state. Organised crime then becomes a national security problem.
Legislative linkages are also important in that there is a need to protect whistleblowers. These linkages must be uniform in the region. Given the intricate network of how organised crime is committed, it may be virtually impossible to detect without the assistance of ordinary citizens. These citizens will, however, need the protection of the law and to be protected from the criminals. This will help detect where crime is being committed.
The requirement of legislative linkages to combat organised crime
As stated above, organised crime is now a more global phenomenon. This has been facilitated by the use of information technology which was virtually non-existent in the 1980s and early 1990s. Organised crime knows no boundaries; ever closer co-operation is therefore needed between policy makers, national law enforcement agencies and lawyers at all levels and across national boundaries through the region, as well as on an international scale.
Savona (1995)6 states that there are two types of risk associated with organised crime. These are:
Transnational organised crime risk: This refers to the probability that organised crime groups will expand their structures and activities in countries different from those in which they are initially located. This concept derives from the general assumption that organised crime groups move towards other countries (become transnational) because of two main variables: maximising opportunities and minimising ‘law enforcement risk’. Law enforcement risk refers to the sum of the probabilities of being identified, arrested, convicted and of having one’s assets confiscated.
Illegal enterprise risk: This refers to the risk incurred by organised groups for exercising their criminal activities in more than one country. The two main variables making up illegal enterprise risk are maximising opportunities and minimising law enforcement risk.
Ernesto U. Savona (1995) in his paper entitled ‘Harmonising policies for reducing the transnational organised crime risk’ states that organised crime risk tends to increase when the illegal enterprise risk for the organised crime group is unequally distributed among countries. Organised crime groups tend to internationalism and expand in those countries where opportunities are higher and law enforcement risk is lower. Savona (1995) made the assumption that the more equally the risk is distributed among countries, the less organised criminal groups will be tempted to displace their activities outside the countries where they are traditionally located.
Controlling the distribution of illegal enterprise risk among countries becomes paramount. The greater the external risks for organised criminal groups, the lesser the probability that they will internationalise their activities. If criminal organisations move towards processes of internationalisation because they find areas where law enforcement risk is minimal, co-ordinated international action designed to equalise this risk among countries will minimise or contain the process of internationalisation of organised crime groups. Equalising the risk means putting all countries on the same minimum ground of preventive/control actions.
Linkages between Southern African countries with respect to combating organised crime exist on two levels: the policy level and the practical level. The former involves public declarations regarding the will of the international community in criminal justice matters. The practical approach involves the actual co-operation requested by one country of another in matters such as collecting evidence, arresting a fugitive, freezing assets of criminal origin and extraditing criminals. The political will constitutes the framework for operations at the practical level.
The main purpose or goal of this process of harmonisation is to reduce the transnational organised crime risk and to equalise illegal enterprise risk. Preventive policies are designed to reduce the opportunities for criminal activity and to minimise the vulnerability of legitimate businesses to the infiltration of organised crime.
Crime control policies, in contrast, are intended to control the crimes committed by organised crime groups.
Efforts to combat organised crime
It is recognised that the battle against organised crime should be expected to be an arduous and protracted one, requiring attention from national, regional and global levels. Globalisation has profound implications for governance and statehood: it erodes state sovereignty as transnational bodies and institutions increase their influence in national affairs, particularly in developing countries. States are bound together by a network of multilateral and bilateral agreements that create mutually binding obligations, thereby placing governments and their performance under increasing scrutiny.
Globalisation continually manifests itself in the evolution of regional blocs that co-operate in areas of trade, politics and security. Some of the well known regional blocs include the North Atlantic Treaty Organisation, the Organisation of American States (OAS), the Organisation of African Unity, the European Union, the Southern African Development Community (SADC) and the Common Market for East and Southern Africa. This has reinforced the power of intergovernmental institutions such as the World Bank, the World Trade Organisation, the Organisation of Economic Co-operation and Development (OECD) and the International Monetary Fund, especially in developing countries where the member states are dependent on these institutions to support these regional entities.
In this context, the role of national governments is to find a suitable and sustainable balance between taking advantage of globalisation and cushioning the economy from external pressures, including corruption.
In recognition of the transboundary nature of crime and corruption and the negative impact of globalisation in this regard, there are increasing efforts at international level to fight corruption. Several international conferences and workshops have been held on the need to identify and implement strategies and to establish mechanisms to combat corruption. Notable among these are the Lima Conference of 1997, the Global Forum on Fighting Corruption held in the United States in February 1999 and the 9th International Conference Against Corruption held in Durban, South Africa in 1999.
Some regional instruments on fighting crime and corruption have also recently been put in place in Europe and the US. In December 1999, OECD member countries and five non-members adopted the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, appreciating that:
“bribery is a widespread phenomenon in international business transactions including trade and investment, which realises serious moral and political concerns, undermines good governance and economic development and distorts international competitive conditions.”
The OAS also passed the Inter-America Convention Against Corruption to address corrupt business practices in the western hemisphere. Although there is no regional instrument against corruption in Asia, the Asia-Pacific Economic Co-operation Forum continues to work on a programme of action to address issues of bribery, corruption and transparency.
The Global Coalition for Africa and some African countries working together with the World Bank have been attempting to promote a possible African anti-corruption agreement.
Several roundtable conferences to discuss strategies on combating corruption in the region have been held since 1998. SADC member countries participating in the Second Roundtable on Ethics and Governance held in Tanzania in 1999, recommended that countries in the region should commit themselves to the adoption of the principles adopted in February 1999 in Washington by 11 African countries as a basis of strategies in fighting corruption in Africa. These developments at global and regional levels make it desirable for Southern Africa to consider seriously establishing similar measures to deal with issues of bribery and corruption.
SADC efforts to combat organised crime
In recent years, Southern Africa has undertaken a number of important initiatives to curb, combat and eradicate corruption. Over the past five years, governments in Southern Africa have enacted legislation and codes of conduct, established anti-corruption institutions, reformed processes of governance to minimise opportunities for corruption and undertaken national consultative processes to design anti-corruption strategies.
At the regional level, Southern Africa has been active in establishing networks of parliamentarians, ombudsmen, auditors general and private sector leaders in order to enhance existing efforts to combat corruption and to promote ethical conduct across national borders. Furthermore, 11 African nations, including four from Southern Africa, issued an African Ministerial Declaration on Corruption, following the Global Forum on Fighting Corruption in Washington DC, in February 1999. Some Southern African countries earlier endorsed a set of anti-corruption principles at the 1997 conference in Mozambique, facilitated by the Global Coalition for Africa.
Studies have been undertaken in the region in an attempt to identify, quantify and qualify the prevalence of corruption in the region in order to establish a common understanding of the concept and its ramifications on the region’s socio-political and economic conditions. This would also assist in identifying strategies in place to combat corruption at national and regional levels. These studies established that corruption is both perceived and experienced as a serious problem in the region in the various sectors of the economy, and particular concern was raised with respect to the magnitude of the problem in the public sector. Studies have revealed that at national levels, several strategies and mechanisms have been put in place to combat corruption, as indicated above. These studies include:
A discourse on the linkage between corruption, human rights and democracy, presented by the Human Rights Trust of Southern Africa at the Third Roundtable on Ethics and Governance in September 2000 and entitled ‘Human rights and democracy norms in governance’.
Diagnostic tools to measure corruption in Africa. These are model data collection instruments for the development of Afro- centric information on corruption.
‘Anti-corruption mechanisms and strategies in Southern Africa’, developed by the Human Rights Trust of Southern Africa.
All these studies call for a more regional approach to combating corruption in Southern Africa.
The SADC protocol against corruption
The adoption of the protocol in mid-August 2001 sent a strong signal to the international community that SADC, on its own initiative, is serious about combating corruption, thus demonstrating the presence of political will to fight corruption. This will almost certainly improve the environment for investment in the region. This statement should be read in line with the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which requires its members to have an anti-corruption clause in their bilateral trade and finance agreements with third parties.
In the absence of a SADC Anti-Corruption Protocol, SADC countries will be required to sign anti-corruption clauses when dealing with OECD countries. The OECD countries will be using their convention while SADC countries will have no guiding principles. The protocol will therefore be the basis for contracting with third parties, thereby reducing the need for individual country bilateral anti-corruption clauses.
(It is necessary that the legal framework is in the form of a protocol to ensure that it is binding on all members as SADC declarations are of a non-binding nature.)
Now that the protocol has been adopted, it should be incorporated into national laws. This should help curb corruption at national and regional levels, thereby leading to a reduction of corruption, the protection of resources and an increase in investment. The protocol will be the main instrument on which anti-corruption strategies, such as legal frameworks and protection of whistleblowers, are based.
It is evident from what has been discussed that organised crime is a scourge that must be eradicated. It is argued that legislation is the only vehicle that can effectively be used to combat organised crime. But legislation is only useful if it is capable of being enforced.
Legislation will derive its practical value in circumstances where it is generally recognised and is not hampered by political and other non-legal issues when it comes to enforcement. This is one of the main reasons why it was necessary to develop a SADC Protocol Against Corruption.
Legislation is most effective when it is clear and unambiguous, available to everyone, enforceable, drafted to deal with the crime that it is intended to address; and when it is easy to interpret. Legislation is accordingly extremely useful and is much needed to deal effectively with organised crime.
Terrorism as Organised Crime
The fundamental difference between them remains: terrorist groups are ideologically motivated and their goal is to achieve particular ‘power outcomes’, while organised crime groups are profit motivated. One of the more obvious corollaries of this is that terrorist groups seek to overturn or destabilise governments while organised crime groups seek to work within a given governmental system in order to continue operating…. There is, however, ample evidence to show that participants in the new wars engage in the same strategies and tactics in which terrorist and organised crime groups generally engage, namely, terror-violence and the quest for economic gain. However, the means alone are not sufficient to alter the fundamental nature of a given group. The purposes of a given group remain the dominant, though not the exclusive, defining characteristic.10
There is, in this, an implicit and overwhelming presumption that terrorist activities and groups have a consistent and enduring ideology and political purpose, and that any economic activity that they engage in are secondary and subsidiary to these motives. This presumption is unfounded in a large number of cases. Indeed, the experience in India tends to the contrary. Of course, in their preliminary ‘ideological’ stage, most terrorist movements are impelled by political motives, and any non-political criminal activities that they may engage in, are usually intended to secure the resources that are needed to support or achieve clear political ends. Nevertheless, once militancies cross this preliminary stage and enter into settled patterns of continuous conflict, acquiring a certain measure of control or influence over significant geographical areas and populations, this characteristic is systematically eroded. One of the factors that contributes to this erosion is what Robert Michels defined at the turn of the century11 – in the context of bureaucracies, professional unions and socialist organisations – as the ‘iron law of oligarchy’: sooner or later, all organisations form their oligarchy that seizes power and that is then consolidated in perpetuity. Thus, while the original intent may be idealistic or even democratic, such organisations eventually come to be dominated by a small, self-serving group of people who achieve and retain all positions of power. Michels argued that the people in this group would be seduced by their ‘elite’ status, and would be increasingly inclined to make decisions that protect their power rather than represent the ideologies or the will of the groups they are supposed to serve. There are, moreover, other organisational factors that reinforce such a tendency, the most significant of which are the internal dynamics of illegal markets, the impact of increasing financial flows and the management of funds, the progressive diversification of the activities of the terrorist group, and the creeping ascendance of the profit motive among increasing numbers of participants in these activities. All these create a multiplicity of organisational layers between any surviving ‘hard-core’ ideological element within the terrorist organisation and its expanding rank and file. Studies of organised crime and gangs in the West indicate that most gang members are only peripherally involved in drug dealing, violence and crime and that only a small percentage of gang members account for most of the harm done by their gang.12 This hypothesis is endorsed by an analysis of arrest records and offender interviews that showed that the worst 10 per cent of criminals commit approximately 55 per cent of all crimes.13 While no specific studies of this nature have been carried out on terrorist groupings in India, it is fairly well documented that the ‘hard-core’ within terrorist groups is a fraction of their total strength, and the motives even among these elements range across the spectrum – from the ideological, through the criminal to the purely pathological. Thus, the presumption of strong, unitary and enduring ideological motives among all – or even any – members of entrenched terrorist organisations and movements, is somewhat tenuous. This is not to imply that such motives do not exist, but rather that there is a continuous spectrum, both over time, and within organisations, of motives that range from the purely ideological to the purely criminal, with an inexorable natural tendency towards the latter in the long term. There will be exceptions to this tendency, and a variety of local factors may neutralise it. For instance, in Jammu and Kashmir (J&K), comprehensive support and funding of militancy by Pakistan eliminates the necessity of extended criminal and extortionary operations – though these may persist on the margin – and hence obstructs the development of the relationships, linkages and dynamics that may otherwise have come into being had such non-political criminal activities been mandated by the operational necessities of sustaining a large terrorist movement over time.
Nevertheless, to the extent that such a tendency prevails, the presumption of a clear opposition of interests between terrorist groupings and established governments is untenable. Indeed, terrorist organisations, like organised crime syndicates, may develop a vested interest ‘to work within a given governmental system,’ subverting and exploiting existing institutions for financial gain, rather than seeking to dismantle or destroy these. This is more the case in India, where a persistent and manifest ambivalence characterises the politics of terrorism-affected States, constantly blurring the lines between the overground political elite and the underground leadership.
The cumulative thrust of the preceding arguments is that it may be fruitful to temporarily suspend judgement on the ideological and political motives or pretensions of terrorist organisations, on the validity and pertinence of the ‘root causes’ of their movements, and on the purely operational and tactical aspects of counter-terrorism, and to focus on the processes, structures and management of the illegal economy that terrorist organisations preside over. In this, it will be necessary to suspend our prejudices, and to regard these organisations and its members as rational – albeit criminal – economic agents or entrepreneurs who continuously respond and adapt to market and policy incentives and disincentives with a view to the maximisation of individual and group profits, and to analyse their activities as such.
The dimensions of this exercise can be estimated through a preliminary exploration of what is known of the underground economy of terrorism in India’s Northeast. Such an analysis would reveal that, as with organised crime, shifts in economic policies, market changes, and the transformation of production relationships can have critical, often unforeseen, consequences on the activities of terrorist organisations. With appropriate data and tools of analysis, moreover, these consequences can not only be predicted, but also used to formulate policies that help induce desired changes, adding a new dimension to the range of possible counter-terrorism initiatives. Needless to say, however, the power of such policies and tools would vary directly with the volume and accuracy of the data and information on which they are based. Significantly, moreover, the processes of documenting this underground economy and its linkages would itself create disincentives to participation in its activities – and this factor can, consequently, also be expected to elicit a great deal of resistance to any such exercise.
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