Stefano Betti

Arguably, the expectation for UNTOC to deliver in isolation has been too high. It should be re-evaluated as a framework for states parties to apply it appropriately and consider legal interventions not traditionally used to address organized crime.

Almost 15 years after it first entered into force on the international level, the discussion about what UNTOC has achieved is picking up. And not a day too soon: after all, by 2005, 111 countries had already taken the legally binding commitment to implement its provisions (out of the current 189 states parties). So, the discussions go, has UNTOC lived up to its promises? Has it delivered added value in the endless fight against organized crime? I feel that by posing these questions we are – to a great extent – losing sight of the problem. We are victims of what I would call the ‘Obama syndrome’, namely that the expectations placed on UNTOC alone to change the world by the magic of its touch were – and are – too high.

Perhaps a fairer way to address the issue is to recalibrate these questions, and ask instead, what have countries done with UNTOC? Have they used it to its full potential? And, if not, what went wrong?

Let’s be fair. This instrument is not and was never meant to be a panacea, and certainly not in a prescriptive way. Take, for example, two areas that nobody would deny are key enforcement tools against organized crime: the use of special investigative techniques (SITs) (undercover agents, electronic surveillance, controlled deliveries, etc.) and joint investigative teams (JITs). In terms of SITs, UNTOC cautiously recommends that states parties ‘allow for their appropriate use’ to the extent permitted by and in accordance with the conditions prescribed by their domestic laws. As for JITs, the only prescription is that parties ‘shall consider’ the conclusion of further arrangements for the possible establishment of JITs.

So, in several ways, UNTOC should be seen as a framework agreement, a box waiting to be filled, a tool that cries out for its states parties to make use of by adopting appropriate national legislation, and negotiating tailor-made agreements in specific sectors. The convention also begs for the goodwill of criminal-justice practitioners in charge of the day-to-day fight against transnational crime.

Arguably, one of the few areas in which UNTOC has provided accurate guidance is that of criminalization. Here UNTOC has indeed achieved something very tangible. Not only have most countries introduced in their criminal statutes four offences regarded as pivotal to addressing organized crime in its various manifestations, but UNTOC’s definition of ‘organized criminal group’ has also been widely adopted by scholars and policymakers worldwide as a standard reference in discussions and analyses.

I am not proposing that UNTOC should be immune from constructive criticism. However, any assessment should probably resize the expectations we have of UNTOC and place this instrument in a broader context. What is needed is a system-wide approach that takes into account all the pieces of the institutional architecture against organized crime.

This leads to another fundamental question: what are the boundaries of the international legal framework on organized crime, of which UNTOC is only one part? I would argue that they are constantly moving, and increasingly faster.

As new hybrid forms of criminal groups take root, traditional conceptual barriers fall apart. The clear-cut categories that we have been relying on for decades to distinguish between organized crime and terrorism have disintegrated. This has increasingly become accepted in the scholarly community, for example in Tamara Makarenko’s groundbreaking work on the interplay between transnational organised crime and terrorism and Jean-Francois Gayraud’s recent book on this same issue. It is now the turn of policymakers and practitioners to take stock of this seismic shift and begin to view all available legal frameworks (including the UN’s) in new and creative ways. Sometimes the best instruments to tackle organized crime are those that do not even mention the term ‘organized crime’. Some of them were conceived to be applied exclusively in the counterterrorism field, but are becoming increasingly relevant to address the new grey areas of organized crime.

Take the 1999 International Convention for the Suppression of the Financing of Terrorism as an example. Impetus for its negotiation was provided by the deadly attacks perpetrated against the US embassies in Kenya and Tanzania in 1998. This instrument targets those who provide or collect funds with the intention that they should be used or in the knowledge that they are to be used to commit terrorist acts. What those who drafted this convention originally had in mind was the murky network of charitable organizations that used to finance al-Qaeda-linked terrorist acts by diverting donations received from self-styled philanthropists.

Twenty years later, the Terrorist Financing Convention, with its cooperation mechanisms, may find new applications in scenarios that its drafters would not have anticipated: as a tool to counter organized crime. The word ‘funds’ is broadly defined within the convention, to include ‘assets of every kind, whether tangible or intangible, moveable or immoveable, however acquired’. Certainly, bank credits, cheques, money orders, shares and a range of other assets are included – as the convention explicitly states. But why should this definition not be extended, more broadly, to address assets used by organised criminal groups? In this sense, the Terrorist Financing Convention has the ability to ‘capture’ the grey areas of transnational organized crime, where the assets may be drugs, smuggled cigarettes, counterfeit goods and even people – particularly in the Sahel and Maghreb regions, where human smugglers, traffickers and terrorists have brought about new, elusive forms of criminality – or ‘dirty entanglements’, to borrow Louise Shelley’s expression.

It is now time for practitioners in this arena to leave the comfort zone. Considering UNTOC as the only universal legal framework available to address transnational organized crime fails to appreciate the broader applicability of other legal instruments to what are increasingly hybrid forms of criminality.