Peter Gastrow

The world is changing and so is transnational organized crime. Yet the UN Convention against Transnational Organized Crime (UNTOC) remains stuck in its original mould, struggling to be relevant. Why did the well-intentioned convention that was adopted in 2000 never really get off the ground or make a significant impact on transnational organized crime?

Delegations from more than 120 states spent many months in Vienna negotiating the convention. As the Rapporteur of these negotiations, I could see that they were hoping to agree on an instrument that would ‘promote cooperation to prevent and combat transnational organized crime more effectively’ – to use the words of Article 1. There may now be greater levels of international cooperation on matters relating to mutual legal assistance and extradition, but there is little evidence that the convention has achieved its objective. Transnational organized crime continues to outpace the law-enforcement authorities, governments and organizations that are trying to stem it.

A problem of definition and overshadowed priorities

The first major obstacle – and this arose during the negotiations – is one that has hampered implementation ever since. It is the question of what organized crime is. How do we define it? And should terrorism be a part of it?

There were many different views on this among the parties to the convention. For example, the Egyptian delegation suggested that an annex should be added to the convention with a list of offences that constituted organized crime, including terrorism. A number of delegations supported this, but it met with opposition from others, including France, Canada and Pakistan. The Canadian delegation argued that organized crime is committed for gain, which is not the case with terrorism. The Belgian delegation proposed that there should be a definition for each and every offence covered by the convention.

And so the debate continued, until it was agreed to defer further discussion on the matter. Eventually, during the final session on the UNTOC in July 2000, a formula was found. It excluded terrorism.

The problem is, the convention attempts to describe what organized crime is without actually defining it, and this has resulted in the concept of transnational organized crime remaining vague and too general to enable the convention to deal effectively with the many forms in which it presents itself – a prime example being the more recent manifestation of cybercrime.

In hindsight, those debates over definition ironically foreshadowed how terror has overtaken organized crime as an international security threat. No one could have predicted how the urgency with which governments were attempting to address organized crime back in 2000 would shift in a different direction soon after. In September 2001, just over a year after the UNTOC was finalized, the 9/11 attacks elevated terrorism to the top of the international security agenda. All of a sudden, organized crime was relegated to much lower down on the security priority list. The UNTOC had been eclipsed by terrorism.

International indifference

The constructive atmosphere in which the UNTOC was negotiated certainly suggested that there was a determination to make the new convention work. There was broad agreement, for example, that international cooperation in law enforcement was crucial because it would enhance the effectiveness of the international response to transnational organized crime.

However, many years later, the UNTOC does not seem to have played much of a role as far as law-enforcement cooperation is concerned. In discussions with law-enforcement representatives that the Global Initiative has hosted, the convention is seldom mentioned. Effective international cooperation in the area of law enforcement is uneven, and where it has improved it is largely confined to bilateral arrangements between more developed countries of the Global North.

Some countries, such as the US, have circumvented the convention by creating extraterritorial jurisdictions to enable their law-enforcement agencies to operate abroad, and they are doing so in more than 70 countries. US Law enforcement are, among other things, addressing drug trafficking and other forms of transnational organized crime. While some would argue that this new approach strengthens international security, the fact is that the UNTOC does not even feature in these interventions.

The most important reason why the UNTOC has not become the game-changing international legal instrument that many had hoped for is the apathy and indifference towards it shown by many signatory states. In October 2010, 10 years after the convention had been agreed to, the UNODC’s executive director expressed his disappointment, saying that only 19 out of the 157 states parties had used the convention to facilitate international cooperation.

Although states’ use of the convention seems to have improved since then, the overall stance remains one of indifference.

After the negotiations for the convention were concluded, the Italian government hosted a signing conference in Palermo attended by 120 foreign delegations, 600 journalists and an army of security officers. Kofi Annan, the then UN secretary general, the Italian president and other dignitaries addressed the proceedings.

During the opening ceremony, many praised the Italian authorities for the progress they had made in combating the mafia. The next morning’s local newspaper, however, must have raised many a cynical smile when it reported on allegations that the mafia had been involved in the construction of the new Palace of Justice in Palermo, a state-of-the-art building that had just been completed in time for the very occasion. The story illustrates how deeply embedded organized crime is in society – and how, often, the response to it is merely cosmetic.

We have a long way to go end organized crime and the networks that drive it. Without effective international cooperation, it will not happen. Maybe signatory states should step back, take stock and consider whether it is time to update and reinvigorate the UNTOC with measures that take account of lessons learnt and of global changes that have occurred since the convention’s adoption.