Published March 2019
Regional Perspective: Eastern and Southern Africa - added in April 2020
This module is a resource for lecturers
Organized crime international framework: The Organized Crime Convention and its Protocols
The United Nations Convention against Transnational Organized Crime (2000) was established by United Nations General Assembly resolution 55/25 and came into force in 2003. UNODC acts as the guardian of the Convention and its three supplementing Protocols.
The Organized Crime Convention was the first concerted effort by the international community to confront organized crime on a global level (Betti, 2003). The Convention requires States to enact measures that prevent and combat transnational organized crime and includes a series of provisions aimed at enhancing international cooperation between States, such as those on mutual legal assistance, extradition and law enforcement cooperation, among others.
General Assembly resolution 55/25 of 15 November 2000, adopting the Organized Crime Convention, calls upon all States to recognize the links between transnational organized criminal activities and acts of terrorism in its perambulatory clauses. Nonetheless, the operative text of the Convention makes no reference to the linkage. It needs to be recalled that, during the negotiations of the Convention, some delegations supported the inclusion of terrorist acts in its scope of application (UNODC, 2006). Turkey, for instance, strongly favoured this approach and, together with other States, supported the idea that the scope of the Convention be defined by a list of offences, including terrorist acts. Egypt held a similar view regarding the inclusion of terrorism and put on record its position on the work of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime at its tenth session: "Acting on the principle that, in preparing an international convention, the concerns of some were the concerns of all, Egypt had repeatedly called for including in the convention a clear and express reference to the growing relationship between transnational organized crime and terrorist crimes. […] Egypt expressed deep regret at the deliberate omission from the text of the convention of a serious dimension of transnational organized crime, represented in the link between such crime and terrorism." (UNODC, 2006).
The approved text of the Convention does not include a list of offences since such list would have quickly become outdated and would hardly serve the purpose of a legally binding agreement that needs to cover present and future needs in the fight against transnational organized crime. For instance, cybercrime was not a real concern at the time of adoption of the Convention but, with technological advancements, became widespread around the world. Similarly, it is hard to predict how organized crime evolves in the future. For the above reasons, the negotiators opted for including a reference to serious crimes. The links between terrorism and organized crime were taken into consideration in the interpretative notes to article 3 of the Convention, which read:
(a) During the negotiations of the convention, the Ad Hoc Committee noted with deep concern the growing links between transnational organized crime and terrorist crimes, taking into account the Charter of the United Nations and the relevant resolutions of the General Assembly. All States participating in the negotiations expressed their determination to deny safe havens to those who engaged in transnational organized crime by prosecuting their crimes wherever they occurred and by cooperating at the international level. The Ad Hoc Committee was also strongly convinced that the Convention would constitute an effective tool and the necessary legal framework for international cooperation in combating, inter alia, such criminal activities as money-laundering, corruption, illicit trafficking in endangered species of wild flora and fauna, offences against cultural heritage, and the growing links between transnational organized crime and terrorist crimes. Finally, the Ad Hoc Committee was of the view that the Ad Hoc Committee established by the General Assembly in its resolution 51/210 of 17 December 1996, which was then beginning its deliberations with a view to the development of a comprehensive convention on international terrorism, pursuant to Assembly resolution 54/110 of 9 December 1999, should take into consideration the provisions of the Convention. (Interpretative notes, article 3).
Hence, pursuant to the interpretative notes, the Convention provides States with the legal framework for cooperation to counter the links between transnational organized crime and terrorist crimes.
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000)
The Trafficking in Persons Protocol supplements the Organized Crime Convention and, like the Smuggling of Migrants and Firearms Protocols, is to be interpreted together with the Convention. The objective of the Trafficking in Persons Protocol is three-fold:
- To prevent and combat trafficking in persons, paying particular attention to women and children;
- To protect and assist victims of such trafficking, with full respect for their human rights; and
- To promote cooperation among States Parties in order to meet those objectives (article 2).
The Protocol defines "trafficking in persons" in article 3 as: "the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation." It goes on to define exploitation as including: "at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs."
The Protocol also lays out requirements for States parties to criminalize trafficking in persons through legislative and other measures. It establishes State obligations for the protection of victims of trafficking, including to consider implementing measures to provide for - in cooperation with civil society in appropriate cases - assistance to victims, such as legal and medical assistance, training opportunities, or housing (article 6). The Protocol requires that States "take into account, in applying the provisions […] the age, gender and special needs of victims of trafficking in persons, in particular the special needs of children, including appropriate housing, education and care" (article 6(4)). Inclusion of a gendered and human rights-based approach to protecting victims is significant and has implications for connecting transnational organized crime to the international human rights' legal framework. The Protocol also outlines State responsibilities for providing residence rights to victims or safely repatriating them (articles 7 and 8) and establishes measures for States to enact to prevent trafficking in persons, including cooperation among States, information exchange and training and the adoption of border measures intended to prevent and detect trafficking in persons (articles 9-11).
While the Preamble to the Trafficking in Persons Protocol takes into account that its adoption was motivated, inter alia, by the need for a universal instrument addressing all aspects of trafficking in persons [emphasis added], the Protocol does not include any references to the relationship between trafficking in persons and terrorism. The literature on the linkages between human trafficking and terrorism is considered later in this Module.
Protocol against the Smuggling of Migrants by Land, Sea and Air (2000)
The Smuggling of Migrants Protocol is the first document to provide an agreed definition of the term "smuggling of migrants": "the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person in a State Party of which the person is not a national or a permanent resident." The reference in this definition to "a financial or other material benefit" was included to emphasize that the intention was to include the activities of organized criminal groups acting for profit, but to exclude the activities of those who provided support to migrants for humanitarian reasons or based on close family ties (UNODC, 2006).
The aims of this Protocol are to prevent and combat smuggling of migrants, promote State party cooperation, and protect rights of smuggled migrants. The Protocol presents similarities to the Trafficking in Persons Protocol. It requires that States criminalize certain conducts, namely the smuggling of migrants and enabling the illegal stay of a migrant for a financial gain and by illegal means; it also requires States to criminalize the production, procurement or possession of fraudulent travel and identity documents when committed to enable migrant smuggling (article 6). The Protocol also establishes States' obligations to prevent the smuggling of migrants and increase cooperation among States, many of which focus on the validation and legitimacy of travel documentation and identification. The Protocol also includes measures protecting smuggled migrants, such as their non-prosecution for the fact of having been smuggled on the basis of the Protocol (article 5), the protection of their rights (article 16), and their return to their countries of origin with due regard for their safety and dignity (article 18 (5)).
The Smuggling of Migrants Protocol, supplementing the Organized Crime Convention, refers to the linkages between organized crime and migrant smuggling (articles 1 & 4). Nonetheless, and much like the Organized Crime Convention and the Trafficking in Persons Protocol, the Smuggling of Migrants Protocol does not specifically address the linkages between terrorist funding/terrorism financing and the smuggling of migrants.
In cases of trafficking in persons and smuggling of migrants, the linkages might result to be particularly relevant given that terrorist actors and groups may engage in these illicit activities, not only as a means to raise funds, but also as a way to (re)enter States through migrant smuggling routes (Europol-INTERPOL, 2016).
Protocol against the Illicit Manufacturing of Trafficking in Firearms, Their Parts and Components and Ammunition (2001)
The Firearms Protocol is the first legally binding instrument on small arms at the global level. The objectives of the Protocol are: to promote, facilitate and strengthen cooperation amongst States Parties and to prevent, combat and eradicate the illicit manufacturing and trafficking in firearms, their parts, components, and ammunition. States parties commit to adopting a series of crime-control measures as required by the Protocol, and also to implement within their domestic legal systems the following: (i) establish criminal offences related to illegal manufacturing of, and trafficking in firearms; (ii) establish a system of government authorizations or licensing intended to ensure the legitimacy of manufacturing of and trafficking in firearms; and (iii) establish authorization to mark and trace firearms.
The Protocol does not mention or examine the illicit manufacturing of and trafficking in firearms in relation to terrorist activity, as it embraces the same broad approach adopted in the Organized Crime Convention and its other two Protocols.