Criminal Justice

Essential problem

Lack of strong independent and fair justice systems


By its very nature, transnational organized crime actively weakens the sovereignty of the State itself. If sovereignty is defined as a monopoly on the use of force and the ability to establish an effective legal framework to govern this use of force, transnational organized crime groups tend to chip away at the state's very foundations. Not only do transnational organized crime groups use their resources to set up parallel sources of power, they also undermine the very legitimacy of the legal regime. By cooperating with each other to respond to the threats from organized crime, Member States both reduce the threat to their sovereignty and strengthen the basis of legitimate international cooperation.

As a region, East Asia and the Pacific has the lowest ratification level of the international crime and drug conventions. This is a fundamental problem in terms of addressing UNODC's mandates at the national and regional levels. It is part of UNODC's normative mandate to encourage the countries of the region to ratify the crime, drugs and terrorism conventions.

The Drug-Free ASEAN 2015 Status and Recommendations report notes that the regional mutual legal assistance (MLA) framework established by ASEAN is impeded by a lack of national legislation. The report specifically states that, "While some bilateral MLA agreements in the region show promise, the challenge is to find operational solutions for wider implementation." Until the use of MLA and other legal tools becomes the status quo, a divided "patchwork approach" of agreements will prevent greater success.

In addition, efforts are also required to strengthen the legal regime to combat terrorism including ratification/accession to key international counter-terrorism instruments and their incorporation into national legislation. This is of particular importance with regard to the international legal framework addressing maritime law enforcement, where 10 jurisdictions in the region are still not party to the basic legal instruments against maritime terrorism. With respect to strengthening the legal regime against terrorism, challenges remain. They include improving the accession rate to the 16 universal counter terrorism treaties by the countries in the region as well as the incorporation of these international instruments into domestic legislation.

For justice systems to be effective in countering organized crime, an evidence-based approach is required. There is a need to raise awareness of the value of physical evidence, as well as its forensic examination and the need to preserve its integrity, from the crime scene to the courtroom. For this reason, enhancing forensic capacity and the exchange of experiences and data in the region through improved national and regional networking is essential. In this regard, UNODC will build upon its ongoing forensic services to partner governments in the region, namely laboratory quality assurance support.
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Strategic concerns

  • Combating transnational organised crime and terrorist networks requires robust rule of law-based criminal justice responses. While many countries in the region still need to improve basic criminal justice capacity, there is a pressing need for national criminal justice agencies to have specialised knowledge and skills to be able to detect and investigate criminal activities. Furthermore, collaboration among concerned security and law enforcement sectors, as well as anti-money laundering and financial intelligence units is crucial for effective prevention, intervention and suppression of criminal activities.
  • Integrity of law enforcement officials, prosecutors and judges is a pre-requisite for the criminal justice system to function well.
  • National policy-makers' understanding and appreciation of international standards and norms, as well as good practices needs to be enhanced.
  • Substantial progress is being made in the area of regional cooperation such as mutual legal assistance and the asset recovery inter-agency network, but additional and robust support needs to be provided for the establishment of a more concrete regional regime for effective cooperation between criminal justice agencies. This regime should consider particularly the challenges associated with existing disparities between countries in terms of their judicial systems and other capacities.
  • A comparative analysis of domestic legal frameworks in Cambodia, Lao PDR, Thailand and Viet Nam against key international standards relevant to sexual exploitation of children by travelling child sex offenders has demonstrated the significant differences in domestic legislation and the need for clearly targeted recommendations for legal reform. These key international standards include criminalisation of conduct, the protection of child victims and witnesses in the criminal justice process, and measures for cross border law enforcement cooperation in child sex tourism cases.

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Implications for the future

The culture of justice remains an essential foundation for social and economic development A fair and effective criminal justice system is a basic pre-requisite for fostering human security and broad national social and economic development. For the years to come, UNODC will need to render assistance to the East Asia and Pacific countries to address the cross-cutting issues of transnational organised crime and terrorism, including money laundering, the financing of terrorism and corruption. In doing this, UNODC will pursue a systemic approach to ensure that countries can benefit fully from rule of law as a vital foundation for achieving the Millennium Development Goals.
 
Specialized and multi-disciplinary skills as well as inter-disciplinary coordination and cooperation beyond frontiers remains essential A functional criminal justice system at the national level is the necessary foundation on which specialized skills can be meaningfully built for addressing the complex challenges of transnational crime and terrorism. The international community is increasingly recognizing the growing inter-linkages between transnational organised crime, terrorism, corruption and other criminal justice challenges. Member States in the region need to continue developing integrated whole-of-government approaches to prevent and suppress serious crime.
 

Improved transnational cooperation is of utmost importance to fight transnational organised crime since it takes a network to defeat a network.

Transnational crime requires a transnational response. UNODC will need to provide assistance in the development of transnational organised justice scheme in this region, which will include, but not limited to, strengthening of: (1) 'formal' MLA network; (2) 'semi-formal' asset recovery inter-agency network; and (3) 'informal' generic or specific network of prosecutors or law enforcements officers. Efforts to uphold the ownership of participating countries on these networks will also be accompanied in the process of pursuing this scheme.
 

UNODC could be more responsive to priorities and need of countries in the region when it allows its global projects to truly decentralize programme design and development, resource mobilization, and implementation.

The regional Counter-Terrorism Sub-Programme, which extensively involved "whole of government approach" has proved to be highly relevant to priorities and need of countries in the region. This pilot decentralized approach could be a key lesson learned for UNODC to be able to most responsive and practical to the region.

 

Implications for follow-up in 2013 and beyond

UNODC will give particular focus to:

  • There is an opportunity to develop focused legal reform efforts-both domestically and regionally-that meet the needs of partner countries, target legislative gaps specific to each country and the region, and complement existing legal frameworks.  A legal reform process has been initiated in Cambodia, Lao PDR, Thailand and Viet Nam that will help address gaps in domestic legal frameworks for prosecuting travelling child sex offenders and protecting children.
  • Supporting the development of regional mutual legal assistance network and asset recovery inter-agency network, which will ultimately comprise transnational organised justice scheme for better cooperative response to transnational organised crime threats in this region, and the improvement of their enhanced connectivity with other regional networks for inter-regional cooperation
  • Promoting the Prosecutor Exchange Programme and other regional networking/collaboration channels or mechanisms for prosecutors and law enforcement officers in the region
  • UNODC should be able to adapt and response to the priorities and need in the region.

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