Transnational Organised Crime in International Law

by Tom Obokata, Michael Bohlander

Overview

There is extensive and detailed academic literature on the legal development of international crimes such as war crimes and crime against humanity. However, not much attention has been paid to other serious crimes, including narcotics-related offences, human trafficking and money laundering, which do not necessarily amount to international crimes in the traditional sense. The purpose of this monograph is to fill this gap and offer a critical analysis of developments in the field of transnational organised crime under international law. The book is divided into two parts. Part I is entitled "Norms, Principles, and Concepts." It traces the history of organised crime and explores key concepts and norms relating to the practice from a multi-disciplinary perspective. It then looks at legal obligations imposed upon States as well as non-State actors in relation to transnational organised crime. Part II illustrates how these norms, principles and obligations are translated and enforced in practice. This will be done through case studies at the level of national law (Thailand, Serbia and the UK), regional law (European Union) and international law (United Nations).

"A book of many parts, its thematic coherence comes from its devotion to identifying the social threat posed by organised crime and the legal steps taken at the international and national levels against that threat. Rich with example and illustration and written in a light, direct, style, it will provide a lucid guide for practitioners, policy-makers and students to the largely untraversed territory of the international legal system set up to suppress transnational organised crime."
Professor Neil Bolster, University of Canterbury, New Zealand.

"...the international law governing organized crime is a close relative of the body of law applicable to the International Criminal Court and similar institutions. It provides a forum to address issues of more general concern, such as the scope of universal jurisdiction, immunities, statutory limitation and extradition. Tom Obokata's study, with its original and in some ways unique perspective, enriches our knowledge of the field".
Professor William Schabas, Irish Centre for Human Rights.

"The book is well written, its documentation is quite exhaustive, and its thesis is timely and compelling."
Professor M. Cherif Bassiouni, DePaul University College of Law.

Product Details

ISBN-13:	9781841136905
Publisher:	Bloomsbury Academic
Publication date:	08/17/2010
Series:	Studies in International and Comparative Criminal Law , #5
Pages:	258
Product dimensions:	6.14(w) x 9.21(h) x 0.69(d)

About the Author

Tom Obokata is a Senior Lecturer in Law at the Queen's University, Belfast.

Table of Contents

Foreword v

Acknowledgements ix

Abbreviations xvii

Table of Cases xix

Table of Regional and International Instruments xxv

1 Introduction 1

1.1 The Rise of Organised Crime 1

1.2 Contemporary Manifestation of Organised Crime 4

1.3 The Scope and Aim of This Book 7

Part I Concepts, Norms and Principles 11

2 Understanding Organised Crime from a Multi-Disciplinary Perspective 13

2.1 Introduction 13

2.2 Concepts of Organised Crime from a Multi-disciplinary Perspective 14

2.2.1 Organised Crime as a Set of Actors 14

2.2.2 Organised Crime as a Set of Activities 19

2.3 Legal Definitions of Organised Crime in National and International Law 24

2.3.1 Definitions of Organised Crime in International Law 24

2.3.1.1 General Discussion 24

2.3.1.2 The Transnational Nature of Organised Crime 28

2.3.1.3 'Transnational' and 'International' Crime 30

2.3.2 Definitions of Organised Crime in National Law 33

2.4 Conclusions 36

3 Obligations of States under International Law 39

3.1 Introduction 39

3.2 The Nature and Extent of Obligations under International Law 40

3.2.1 Prohibition of Organised Crime and Associated Acts 40

3.2.2 Criminal Jurisdiction over Organised Crime 47

3.2.3 Special Investigative Techniques and Intelligence-Led Law Enforcement 55

3.2.4 Mutual Assistance in Criminal Matters 57

3.2.4.1 Extradition 57

3.2.4.2 Other Mutual Legal Assistance 64

3.2.5 Prevention of Organised Crime 66

3.3 Key Legal Challenges Facing Effective Implementation of Obligations 68

3.3.1 Periods of Limitations for Organised Crime 68

3.3.2 Immunity of Government Officials and Diplomats 69

3.3.3 Protection of Human Rights of Suspects/Defendants 75

3.4 Conclusions 79

4 The Role of Non-state Actors in Suppression and Prevention of Organised Crime 81

4.1 Introduction 81

4.2 The Role of Non-state Actors in Prevention and Suppression of Organised Crime 82

4.2.1 The Concept of Global Governance 82

4.2.2 Global Governance over Transnational Organised Crime 86

4.2.2.1 Decision-Making and Participation 86

4.2.2.2 Accountability 93

4.2.2.2.1 Individual Criminal Responsibility 93

4.2.2.2.2 Criminal Organisations 100

4.2.2.2.3 Legal Persons 104

4.2.2.2.4 International Organisations 106

4.3 Towards an Inclusive Notion of the 'International Community' 113

4.4 Conclusions 116

Part II Enforcement of Norms and Principles 119

5 National Case Studies of Thailand, Serbia, Kosovo and the UK 121

5.1 Introduction 121

5.2 Thailand 122

5.2.1 Legal Framework to Address Organised Crime 122

5.2.1.1 Legislation on Substantive Offences 122

5.2.1.2 Legislation on Criminal Procedure and International Co-operation 124

5.2.1.2.1 Criminal Jurisdiction and Investigative Powers 124

5.2.1.2.2 The Rights of Suspects/Defendants, Victims and Witnesses 126

5.2.1.2.3 Mutual Legal Assistance in Criminal Matters 127

5.2.2 Assessment of Law Enforcement in Thailand 129

5.3 Serbia 133

5.3.1 Legal Framework to Address Organised Crime 133

5.3.1.1 Legislation on Substantive Offences 133

5.3.1.2 Legislation on Criminal Procedure and International Co-operation 135

5.3.1.2.1 Criminal Jurisdiction and Investigative Powers 135

5.3.1.2.2 The Rights of Suspects/Defendants, Victims and Witnesses 138

5.3.1.2.3 Mutual Legal Assistance in Criminal Matters 140

5.3.2 Assessment of Law Enforcement in Serbia 141

5.4 Kosovo 145

5.4.1 Legal Framework to Address Organised Crime 145

5.4.1.1 Legislation on Substantive Offences 145

5.4.1.2 Legislation on Criminal Procedure and International Co-operation 148

5.4.1.2.1 Criminal Jurisdiction and Investigative Powers 148

5.4.1.2.2 The Rights of Suspects/Defendants, Victims and Witnesses 150

5.4.1.2.3 Mutual Legal Assistance in Criminal Matters 151

5.4.2 Assessment of Law Enforcement in Kosovo 152

5.5 The UK 157

5.5.1 Legal Framework to Address Organised Crime 157

5.5.1.1 Legislation on Substantive Offences 157

5.5.1.2 Legislation on Criminal Procedure and International Co-operation 159

5.5.1.2.1 Criminal Jurisdiction and Investigative Powers 159

5.5.1.2.2 The Rights of Suspects/Defendants, Victims and Witnesses 162

5.5.1.2.3 Mutual Legal Assistance in Criminal Matters 163

5.5.2 Assessment of Law Enforcement in the UK 165

5.6 Comparative Analysis 170

5.7 Conclusions 174

6 The EU and Transnational Organised Crime 175

6.1 Introduction 175

6.2 Law, Policies and Measures under the TEU 176

6.2.1 Overview 176

6.2.2 Analysis of the TEU Measures 179

6.3 Law, Policies and Measures under the TEU as Revised by the Treaty of Amsterdam 182

6.3.1 Overview 182

6.3.2 Approximation of National Laws 183

6.3.3 Mutual Recognition of Judicial Decisions 186

6.3.4 The Principle of Availability-Intelligence Exchange 191

6.3.5 Analysis of Measures under the TEU as Revised by the Treaty of Amsterdam 193

6.3.5.1 Application of Approximation, Mutual Recognition and the Principle of Availability 193

6.3.5.2 Other Issues 199

6.4 The Future of the EU Action against Organised Crime in Light of the Lisbon Treaty 202

6.5 Conclusions 205

7 International Responses to Transnational Organised Crime 207

7.1 Introduction 207

7.2 Monitoring Implementation of the Organised Crime Convention 208

7.3 Provision of Technical Assistance 210

7.4 International Co-operation 216

7.4.1 Inter-state Co-operation 216

7.4.2 Inter-Agency Co-operation: UNIAP 220

7.5 Conclusions 224

8 Conclusion 227

Selected Bibliography 231

Books and Articles 231

Reports and Working Papers 240

Index 243

Editorial Reviews

Transnational Organised Crime in International Law is an important contribution to the field. The book offers well-organised and lucid analysis of concepts and case studies that may interest both academicians and practitioners and is accessible for the casual reader who is interested in an introduction to the subject matter.” —Global Crime, Volume 12, Issue 3

“... a welcome addition in a research field which has seen significant developments in the last years, but a relatively low number of scholarly works.

... a thorough analysis of the relationship between organized crime and international criminal law” —The European Jourbanal of Criminal Policy and Research

From the Publisher