| United Nations | A/50/433 |
General Assembly
Distr. GENERAL
18 September 1995
ORIGINAL:
ENGLISH
Fiftieth session
Item 108 of the provisional agenda*
CRIME PREVENTION AND CRIMINAL JUSTICE
Implementation of General Assembly resolution 49/150 on the
Naples Political Declaration and Global Action Plan against
Organized Transnational Crime
Report of the Secretary-General
CONTENTS
Paragraphs Page
I. INTRODUCTION .........................................1 - 63
II. ACTION TAKEN BY THE COMMISSION ON CRIME PREVENTION AND
CRIMINAL JUSTICE .....................................7 - 114
III. ACTION TAKEN AGAINST ORGANIZED TRANSNATIONAL CRIME:
A GLOBAL PRIORITY ....................................12 - 276
IV. IMPLEMENTATION OF THE NAPLES POLITICAL DECLARATION AND
GLOBAL ACTION PLAN AGAINST ORGANIZED TRANSNATIONAL
CRIME: PROGRAMMATIC ASPECTS AND MODALITIES ..........28 - 7211
A. Strengthening international cooperation and the
opportunity of a convention or conventions against
organized transnational crime ....................31 - 3912
B. Increasing reliable knowledge ....................40 - 5416
_________________________
* A/50/150.
95-28184 (E) 061095/...
*9528184*
CONTENTS (continued)
Paragraphs Page
C. Assistance in the legislative and regulatory
fields ...........................................55 - 6420
D. Technical cooperation ............................65 - 7223
V. CONCLUSIONS ..........................................73 - 7525
I. INTRODUCTION
1. The World Ministerial Conference on Organized Transnational Crime, held
at Naples, Italy, from 21 to 23 November 1994, pursuant to Economic and
Social Council resolution 1993/29, unanimously adopted the Naples Political
Declaration and Global Action Plan against Organized Transnational Crime
(A/49/748, annex, sect. I.A), which was approved by the General Assembly in
its resolution 49/159 of 23 December 1994. The Assembly urged States to
implement the Naples Political Declaration and Global Action Plan as a
matter of urgency.
2. The Assembly requested the Secretary-General to transmit the Naples
Political Declaration and Global Action Plan to the Commission on Crime
Prevention and Criminal Justice for appropriate action, while recommending
a higher level of priority for the United Nations crime prevention and
criminal justice programme within the framework of the United Nations. The
Commission was requested to keep the implementation of the Naples Political
Declaration and Global Action Plan under regular review.
3. In a separate resolution, the World Ministerial Conference expressed
its appreciation for the proposal of the Government of Italy to organize
and host at no cost to the United Nations, and in consultation with the
crime prevention and criminal justice programme, an international task
force for the elaboration of proposals on the feasibility of establishing
an international training centre for law enforcement and criminal justice
personnel. The Conference took note of the offer of the Italian Government
to act as host to the centre and to provide the necessary organizational
and functional resources, and invited the Government of Italy to submit the
results of the task force's work to the Commission on Crime Prevention and
Criminal Justice at its fourth session.
4. The Naples Political Declaration and Global Action Plan identified
specific measures, to be further elaborated and implemented, in order to
make action against organized crime more effective and strengthen
international cooperation. These measures are intended to strengthen the
ability of States to cope with the increasing threat posed by organized
transnational crime in its various new forms and manifestations. They are
also directed at enhancing the capacity of developing countries and
countries with economies in transition to deal with the problems created by
organized transnational crime and to enable them to cooperate effectively
at the regional and international levels.
5. In the Naples Political Declaration and Global Action Plan, it was
strongly recommended that continued priority attention be accorded in the
context of the United Nations crime prevention and criminal justice
programme to strengthening international cooperation against organized
transnational crime at all levels. It was recognized that existing
resources were not sufficient to enable the programme to support
intensification of efforts at the national level and increased
intergovernmental cooperation, and it was recommended that a higher
priority be accorded to the United Nations crime control activities by
providing the programme with adequate resources to carry out its mandates
and responsibilities.
6. The present report is submitted pursuant to General Assembly
resolution 49/159 on the Naples Political Declaration and Global Action
Plan against Organized Transnational Crime. It concentrates on certain
aspects of implementation and the required action to be taken by States and
the United Nations, as well as modalities for such implementation, pursuant
to General Assembly resolution 49/159 and paragraph 45 of the Naples
Political Declaration and Global Action Plan.
II. ACTION TAKEN BY THE COMMISSION ON CRIME PREVENTION
AND CRIMINAL JUSTICE
7. The Commission on Crime Prevention and Criminal Justice discussed the
issue of the implementation of the Naples Political Declaration and Global
Action Plan at its fourth session, held at Vienna from 30 May to 9 June
1995, and began the process of encouraging Member States to proceed in that
direction and identifying the areas to which attention should be directed.
In its consideration of the most appropriate method and modalities of
following up on the mandate of monitoring and promoting such
implementation, conveyed by the General Assembly in resolution 49/159, the
Commission had the benefit of the recommendations of the Ninth United
Nations Congress on the Prevention of Crime and the Treatment of Offenders,
held at Cairo, from 29 April to 8 May 1995. The Congress had debated the
issue in detail and had adopted resolution 3 on international instruments
such as a convention or conventions against organized transnational crime.
In that resolution, the Congress had invited the Commission to give
priority to initiating the process called for by the Naples Political
Declaration and Global Action Plan, by requesting the views of Governments
on the opportunity of elaborating new international instruments such as a
convention or conventions and on the issues and elements that could be
covered therein. The Commission was also requested to consider whether it
would be helpful to propose to Governments a list of issues or elements
which might be dealt with in such instruments, with possible examples
contained in the annex to the above-mentioned resolution. 1/ The Ninth
Congress had also considered the issue of links between terrorist crimes
and transnational organized crime, about which Member States had expressed
their grave concern in the Naples Political Declaration and Global Action
Plan (A/49/748, annex, sect. I.A, para. 2).
8. On the recommendation of the Commission at its fourth session, the
Economic and Social Council adopted resolution 1995/11 of 24 July 1995 on
the implementation of the Naples Political Declaration and Global Action
Plan against Organized Transnational Crime. The Council took note of the
report of the Secretary-General on proposals related to the programmatic
aspects of the Naples Political Declaration and Global Action Plan
(E/CN.15/1995/2). The Council welcomed with appreciation the preliminary
report of the international task force to study the feasibility of
establishing an international training centre for law enforcement and
criminal justice personnel (E/CN.15/1995/11) and encouraged the Government
of Italy and the Governments of the other States members of the task force
to continue and finalize its work, with a view to informing the General
Assembly, at its fiftieth session of the results. The Council requested
the Secretary-General to initiate the process of requesting the views of
Governments on the opportunity and impact of international instruments such
as a convention or conventions against organized transnational crime and on
the issues and elements that could be covered therein, pursuant to the
Naples Political Declaration and Global Action Plan. Pursuant to this
request, the United Nations Office at Vienna sent a note verbale in
September 1995 to Governments through their Permanent Missions at Vienna or
in New York. Also in resolution 1995/11, the Council decided to establish,
within the framework of the Commission, at its fifth session, an open-ended
intergovernmental working group to consider, inter alia, the views of
Governments on this matter.
9. For the purpose of assisting the international community in increasing
its knowledge of criminal organizations and their dynamics, the Council
requested the Secretary-General to collect and analyse information on the
structure and dynamics of organized transnational crime and on the
responses of States to this problem. The analysis of the information would
be carried out building on the expertise and experience of Member States
and drawing on the contributions of Governments. Such contributions could
include teamwork by highly qualified experts, relevant organizations and
individuals, taking into account work already done in this area. The open-
ended intergovernmental working group to be established at the fifth
session of the Commission will examine the results of the analysis of the
information, which Governments were requested to provide to the Secretariat
in the note verbale mentioned above. In a related provision, the Council
requested the Secretary-General to submit to Member States for their
consideration at the fifth session of the Commission a proposal on the
creation of a central repository for existing legislative and regulatory
measures and information on organizational structures designed to combat
organized transnational crime, with a view to making this information
available to Member States.
10. With respect to the provision of practical assistance to requesting
Member States, the Council requested the Secretary-General, as necessary,
to submit concrete proposals to the Commission for approval, with a view to
developing practical models and guidelines for substantive and procedural
legislation. These would be intended to assist developing countries and
countries in transition in reviewing and evaluating their legislation and
in planning and undertaking reforms, and would be developed building on the
experience and expertise of States and drawing on contributions from
relevant organizations. The Secretary-General was also requested to provide
advisory services and technical assistance to requesting Member States in
needs assessment, capacity-building and training, as well as in the
implementation of the Naples Political Declaration and Global Action Plan.
The Council further requested the Secretary-General to avail himself of the
assistance of experts with extensive experience in the field of prevention
and control of organized transnational crime indicated by Member States,
who might be called upon in connection with technical cooperation
activities. The United Nations Office at Vienna has requested Member
States to provide it with the names of experts for the purpose of compiling
a roster which can be resorted to in connection with requests for the
provision of advisory services and practical assistance.
11. Following up on the recommendations contained in the Naples Political
Declaration and Global Action Plan with respect to the prevention and
control of money-laundering and the use of the proceeds of crime, the
Council requested the Secretary-General to seek cooperation and to join
efforts with other international, global and regional organizations and
mechanisms that have played an active role in combating money-laundering.
The purpose of cooperation and joint efforts would be to reinforce common
regulatory and enforcement strategies in that area and assist States, upon
request, in treaty formulation and the development of criminal justice
infrastructure and to provide technical assistance. Further, the
Secretary-General was requested, as necessary, to compile appropriate
manuals, drawing upon the expertise of Member States and of other relevant
organizations, taking into account differences in legal systems and using
the expertise of institutes and relevant entities of the United Nations
crime prevention and criminal justice programme.
III. ACTION TAKEN AGAINST ORGANIZED TRANSNATIONAL CRIME:
A GLOBAL PRIORITY
12. The 142 States present at the World Ministerial Conference on
Organized Crime proclaimed their political will and strong determination,
as well as their unequivocal commitment, to ensure the full and expeditious
implementation of the Political Declaration and Global Action Plan,
reflecting the urgency and priority attention attached to action against
organized transnational crime. The Naples Conference was not the only forum
in which the collective concern of States had been expressed, but was the
culmination of efforts at the international level. The growth of organized
transnational crime and its expansion both in terms of activities and
across geographical borders brought about the realization that action
against it could not be limited to the national level or to arrangements
between a limited number of States. Efforts had to take into account the
current political situation and the ease with which organized criminal
groups crossed borders and took advantage of efforts designed to bring
countries closer together and increase the free movement of goods, capital,
services and people. Such efforts also had to be made in a manner tailored
to the fact that organized transnational crime was making full use of
modern technologies, thus increasing its sophistication and diversity and
outpacing the capacity of many countries to deal with it. In their search
for new opportunities and markets, organized criminal groups were ready to
make sizeable investments in both equipment and human resources and were
willing to bring their huge financial power to bear, in addition to using
other more violent methods, for eliminating competition. In addition, the
international community had realized that proceeds of crime directed at the
legitimate economy posed a grave threat to financial stability and growth.
The prospect of organized criminal groups infiltrating and attaining
controlling interests in crucial sectors of the economies of developing
countries and countries in transition had contributed to raising awareness
and increasing concern among Governments, particularly at a time of joint
efforts towards economic restructuring on the basis of free market
principles.
13. It was against this background that world leaders began placing
concerted action against organized transnational crime high on their
agenda. The seven major industrialized countries, at their summit meeting
held at Naples in July 1994, gave special consideration to the response of
the international community against organized transnational crime and
money-laundering. In their summit communique, the heads of State and
Government of the seven major industrialized countries and the President of
the European Commission expressed alarm about the growth of organized
transnational crime and the use of illicit proceeds to take control of
legitimate business. This was a world-wide problem, with countries in
transition being increasingly targeted by criminal organizations. They
also expressed their determination to strengthen international cooperation
to address the situation and welcomed the World Ministerial Conference on
Organized Transnational Crime, to be held at Naples. In the Chairman's
statement, the heads of State and Government of the Group of Seven stressed
that organized crime and narcotics trafficking were a threat to political
as well as economic and social life. Calling for increased international
cooperation, they agreed that the World Ministerial Conference was a most
important occasion to advance such cooperation.
14. At the United Nations fiftieth Anniversary Ceremony, held at San
Francisco on 26 June 1995, the President of the United States of America
called for agreement among the international community on a new agenda for
the United Nations, to increase confidence and ensure support for the
United Nations and to advance peace and prosperity for the next 50 years.
In identifying the areas to which more attention should be paid on the part
of the United Nations, President Clinton called for "support through the
United Nations of the fight against man-made and natural forces of
disintegration, from crime syndicates and drug cartels to new diseases and
disappearing forests. They cross borders at will. Nations can and must
oppose them alone, but we know, and the Cairo Conference reaffirmed, that
the most effective opposition requires strong international cooperation and
mutual support".
15. In the Chairman's statement of the summit meeting, held at Halifax in
1995, the Group of Seven declared that "transnational criminal
organizations are a growing threat to the security of our nations. They
undermine the integrity of financial systems, breed corruption, and weaken
emerging democracies and developing countries around the world. To counter
their criminal activities effectively, we will work to reinforce existing
institutions, strengthen our cooperation, exchange of information, and
assistance to other nations". The heads of State and Government of the
Group of Seven agreed to cooperate more closely together, and with others,
to ensure that transnational criminal organizations cannot escape justice
by crossing borders. They encouraged all Governments to adhere to and
implement relevant international conventions and the recommendations of the
Financial Action Task Force. They recognized that ultimate success
required all Governments to provide for effective measures to prevent the
laundering of proceeds from drug trafficking and other serious crimes. To
implement their commitments in the fight against transnational organized
crime, they established a group of senior experts, with a temporary mandate
to look at existing arrangements for cooperation, both bilateral and
multilateral, to identify significant gaps and options for improved
coordination and to propose practical action to fill such gaps.
16. In the Naples Political Declaration and Global Action Plan, States
proclaimed their determination to join forces and fight together against
the expansion and diversification of organized transnational crime.
Notwithstanding recent successes, they expressed their conviction that
coordinated strategies and other forms of international cooperation should
be further developed. States noted with concern that organized
transnational crime threatened the social and economic growth of developing
countries and countries in transition and their institutions; stressed that
the international community should assist these countries in their efforts
to enable their criminal justice institutions to adequately prevent and
combat organized transnational crime; and observed that the fight against
organized transnational crime should be accorded high priority by States
and by all relevant global and regional organizations, with the necessary
support of the general public, the media, business, institutions and non-
governmental organizations. States arrived at these conclusions and
proclaimed their determination to take the action specified in the Naples
Political Declaration and Global Action Plan, while reaffirming the
responsibility vested in the United Nations in crime prevention and
criminal justice and recognizing the need to strengthen its role in the
development of a comprehensive programme of action to prevent and control
organized transnational crime.
17. The Naples Political Declaration and Global Action Plan was made
possible by, but also attests to, a collective political will to deal with
the problem at the global level and a consensus as to what needs to be
done. This consensus is the result and culmination not only of the
realization of the global effects of the problem, but also of a long
process of convergence and balancing of national interests and perceptions,
as well as the full recognition of varying needs and capacities. In the
past, organized crime was considered one of the problems facing developed
countries and, therefore, of little interest to developing countries which
had other priorities and other more pressing needs. When organized crime
began crossing borders and becoming a menace and a threat to developing
countries, the scope of the problem was fundamentally altered. The changes
in the political environment with the emergence of newly independent
States, which entered a phase of economic and political transition, were
soon perceived by organized criminal groups as increased opportunities for
expansion and diversification and added a new dimension to the issue. The
interest and concern of developing countries and countries in transition
grew and the issue of organized transnational crime became one of their
priorities, also because its effects made it more difficult to pursue other
standing development priorities.
18. A new situation was created for developed countries as well. Whereas
in the not-too-distant past action against organized crime was to be
planned and taken largely within their borders, or in cooperation with
other countries of similar capacities and perceptions, increased
transnationalization and expansion brought about imponderables as to
activities of organized criminal groups, and difficulties with regard to
effective law enforcement and judicial cooperation. The new dimensions of
organized transnational crime also require more resources for the expansion
of cooperation arrangements, but also for new law enforcement techniques
and capabilities. However, while developed countries already possess the
infrastructure and crucial knowledge required in mustering the necessary
resources and maximizing their efficiency and effectiveness, developing
countries and countries in transition are found in the very difficult
position of easily being outpaced by organized criminal groups. Countering
the onslaught of organized transnational crime requires diversion of scarce
resources, delaying or even threatening the attainment of other objectives
and development targets. In addition, developing countries and countries
in transition are increasingly finding themselves in a quandary. Their
drive towards development and growth in accordance with free market
principles is under threat from the direct or indirect effects of organized
transnational crime, while the limited effectiveness of their efforts,
owing to the lack of the necessary resources, is often cited as a
disincentive to the very much needed foreign investment and assistance.
19. The consensus and collective political will evidenced by the Naples
Political Declaration and Global Action Plan, as well as the results of the
other events mentioned above, are of great significance to future action by
the international community against organized transnational crime. Of
equal importance is the momentum built by the consistency and frequency
with which the consensus and collective political will have been enunciated
in the past two years. Such momentum and consensus are prerequisites for
action to take a definitive shape and to have the desired effects in the
shortest time possible, an element of importance in view of the rapid
growth and expansion of organized transnational crime. The international
community should begin taking decisive steps forward in the implementation
of the policies and measures it decided upon in the Naples Political
Declaration and Global Action Plan, building on but also sustaining this
momentum.
20. Action against organized transnational crime would be more effective
if it were collective, with its planning and implementation being the
patrimony of all contributors to the consensus-building process and to the
formulation of a strong collective political will. In the Naples Political
Declaration and Global Action Plan, States recognized, while acknowledging
its global implications, that prevention and control of organized
transnational crime must necessarily vary from State to State and region to
region and be based upon improvements in national capabilities, increased
knowledge and shared experiences about organized criminal groups. Such
variations at the national or regional levels are natural given the
different manifestations and degrees of development of organized criminal
groups and their activities. Further, differences in the degree of
development of institutions and the financial capabilities of countries are
bound to affect the responses to the problem. In situations of scarcity of
funds and numerous competing priorities, the size and present effects of
the problem of organized transnational crime are bound to guide the
decisions of policy makers on the allocation of resources.
21. In addition to its recognized global implications, however, organized
transnational crime has displayed the capacity to shift operations across
borders, in order to minimize risk and maximize opportunities, and to take
full advantage of gaps in national responses and of deficiencies in
international cooperation. Further, organized transnational crime has
shown the ability and readiness to benefit from economic growth and efforts
towards economic reform and privatization in developing countries and
countries in transition, mainly because of the variations in pace between
such processes and the creation or strengthening of the appropriate
institutions.
22. Consequently, current parameters may change too rapidly for existing
mechanisms to respond adequately. In such a case, any opportunity for
preventive action may be lost and control may become extremely difficult,
placing limited resources and immature institutions under even more severe
strain. It is, therefore, crucial to retain a global view and a long-term
perspective in developing national policies and regional cooperation
mechanisms against organized transnational crime. In addition, there needs
to be a common denominator against which action can be measured, in order
to ensure continuity and consistency, as well as the sustained pursuit of
common objectives.
23. The significance of the Naples Political Declaration and Global Action
Plan, viewed in the context of the initiatives that have been taken since
their adoption, lies in having demonstrated that the international
community has reached agreement on a basic set of common objectives and on
the fundamental elements of the modalities required to attain them.
Considerably more work is necessary, however, to operationalize this basic
agreement by way of consistent and coordinated implementation. This
agreement appears to be founded on the understanding that the problem is
equally threatening for all countries of the world, and that those
countries having difficulties in bringing their relevant mechanisms up to
the required standard for effective action in preventing and controlling
its effects will be assisted by those in a position to do so. In the face
of a problem as pervasive and dangerous as organized transnational crime,
however, a sense of anxiety about minimizing its impact at the national
level often tends to prevail. This tendency becomes even more prevalent
when considering some of the activities in which organized transnational
crime is engaged, which involve violence and, consequently, capture the
attention of the public through the media coverage that they receive.
Further, Governments are alarmed by the increasing involvement of organized
transnational crime in legitimate business, coupled with the need of
organized criminal groups to find ways of laundering their illicit
proceeds.
24. One of the characteristics of this sense of anxiety is the tendency to
disregard the benefits of building and sustaining consensus, and to rely on
individual capacities in order to proceed forward at a presumably faster
pace. Action taken in this context can be similar to action often taken at
the regional level, in terms of homogeneity of perceptions, priorities,
needs and immediate objectives, as well as relevant equivalency of the
capacity of infrastructures. In the short term, the effectiveness of such
action may be evident and may satisfy the urgency for measurable and
visible results. In the case of organized transnational crime, however,
the global nature of the problem ultimately demands a global approach and
global solutions. Regional initiatives have been instrumental in meeting
immediate needs and paving the way for global approaches on many issues.
Such initiatives are, after all, based on the very same principles and the
consensus which should characterize global action and can make it
effective. In the regional context, however, consensus-building may be
more easily attainable and sustainable, because of the reasons mentioned
above.
25. Action taken in response to a sense of impatience with the global
consensus-building process may appear to be breaking new ground and setting
high standards of accomplishment. In this context, efforts to plan and
implement such action may be useful in pointing to the ideal fashion of
attaining the maximum objectives in the shortest time possible, thus
serving as a guide and a yardstick by which to measure success. However,
action proceeding at varying speeds may result in widening gaps instead of
closing them and altogether eliminating them, particularly considering the
flexibility and capacity for diversification of organized transnational
crime. Differences in opinion and perspectives may present the risk of
trivializing the matter and entangling it in long debates, ultimately
slowing down the desired pace, if not placing the effectiveness of the
action per se in jeopardy. While peer pressure in the context of an
institutional framework is invaluable, the risk of misperceptions as to
ultimate objectives and the ways to achieve them may be too great in view
of the implications of organized transnational crime and the threat it
poses to developed and developing countries alike.
26. Effective action at the global level would need to move forward at the
same pace, the speed of which would need to be collectively agreed upon.
Only in such a case can there be the commitment to meet goals and attain
common objectives. In view of the divergent situations in which different
countries are found, particularly in terms of capacity and infrastructure,
this pace may not be as brisk as the international community would wish.
There would be a need for a mechanism to identify in the shortest time
possible cases in which there is a slow-down and attempt to rectify the
situation by providing the appropriate technical assistance. When action
is the result of consensus and collective commitment, the effectiveness of
technical assistance would be greatly enhanced, since the objectives and
modalities of such assistance would be the product of consent and overall
agreement.
27. The effectiveness of global action against organized transnational
crime would also depend on how well coordinated it is, particularly since
such action is bound to involve technical cooperation. Coordination would
ensure more efficient use of resources and would greatly enhance the impact
of technical assistance, not only by directing it to those areas where it
is most needed, but also by establishing and maintaining a constant
relationship between the needs to be met and contributions towards common
objectives and goals. Coordination, which should be viewed as an integral
part of effective action, requires a constant flow of reliable information,
the willingness of all parties concerned to rely on and contribute to the
availability of such information, and the readiness in particular of donor
countries and agencies to channel resources towards meeting needs as they
arise.
IV. IMPLEMENTATION OF THE NAPLES POLITICAL DECLARATION AND
GLOBAL ACTION PLAN AGAINST ORGANIZED TRANSNATIONAL
CRIME: PROGRAMMATIC ASPECTS AND MODALITIES
28. Full implementation of the Naples Political Declaration and Global
Action Plan will require considerable effort and investment on the part of
States and the United Nations, as well as relevant intergovernmental and
non-governmental organizations. In order to maximize the effect of
appropriate action by the Commission on Crime Prevention and Criminal
Justice, and also to assist States in directing their efforts and resources
towards implementation more efficiently, it may be useful to chart a course
by identifying areas on which attention should be concentrated and where
the United Nations can make a useful contribution through planning and
implementing operational activities.
29. At a time of limited resources, implementation would need to proceed
in phases, which would be agreed upon by the international community. The
foundation of this phased approach would need to be a sustained and
concerted effort to maintain the momentum and increase the impetus created
by the Naples Political Declaration and Global Action Plan and to further
strengthen the consensus and political will that made them possible. In
charting the course for full implementation, certain key factors would need
to be kept in mind. The threat posed to the internal security and
stability of sovereign States, as well as to international security, by the
dramatic increase of organized transnational crime in the past decade is
growing and will continue to grow and become more menacing if concerted and
decisive action on the part of the international community is delayed.
While energies have to be focused and action planned in the best and most
efficient manner, the ultimate goals of effectively preventing and
controlling organized transnational crime in all its forms and dimensions,
and arresting its expansion at both the national and international levels,
should be guiding the relevant efforts and should constitute the yardstick
against which success is to be assessed.
30. Pursuant to the mandate entrusted to it by the General Assembly in
resolution 49/159, the Commission on Crime Prevention and Criminal Justice
began moving in the direction of charting the course towards implementation
at its fourth session. In Economic and Social Council resolution 1995/11,
adopted on the recommendation of the Commission, certain areas of priority
attention were identified. In addition to examining the opportunity and
impact of international instruments such as a convention or conventions
against organized transnational crime, and an indication of the issues and
elements to be covered therein, priority attention was given to improving
reliable knowledge on the structure and dynamics of organized transnational
crime, legislative and regulatory measures, and technical cooperation.
A. Strengthening international cooperation and the
opportunity of a convention or conventions
against organized transnational crime
31. The new responsibilities that Governments have to take on because of
the escalation of organized transnational crime and the demand for global
strategies to combat it, draw attention to the need for effective
instruments, bearing in mind that what is most needed is a comprehensive,
multi-layered approach to international cooperation in law enforcement and
criminal justice in the fight against organized transnational crime.
Ideally, a truly effective international approach would be composed of a
web of bilateral, regional and multilateral arrangements complementing and
promoting one another. In fact, bilateral and multilateral forms of
cooperation are complementary rather than mutually exclusive. However,
whether international cooperation can evolve in ways that allow a response
to transnational criminal organizations commensurate with the threat
depends on the capacity of States to understand that criminal justice and
law enforcement systems can no longer be viewed as purely national
concerns. Ultimately, the prospects of cooperation depend on recognizing
that a new kind of threat demands a new kind of response, in which
international cooperation plays a central role. Experience has shown the
importance of adopting international instruments in order to enact global
strategies of action when dealing with issues of a transnational nature. A
very successful example is found in the United Nations Convention against
Illicit Trafficking in Narcotic Drugs and Psychotropic Substances of 1988
(E/CONF.82/15 and Corr.2).
32. One of the major objectives of international cooperation must be to
create greater harmonization in criminal justice systems, by improving the
standards of countries with weaker criminal justice systems in general or
by developing national legislation specifically directed against organized
crime. It is crucial to eliminate "sanctuary States" and ensure that
national legislation against transnational organized crime is as compatible
as possible. Complete harmonization is, of course, impossible, for some of
the reasons identified above. Yet there is a level of harmonization,
perhaps better described as inter-operability, that allows for continued
national differences while still achieving the necessary degree of
complementarity for effective concerted action against transnational crime.
It has been emphasized that "investigation of transnational crime, no less
than its prosecution, will likewise involve multiple jurisdictions and
cooperation among different Governments. To be useful, the products of
these investigations should be as nearly interchangeable as possible.
Procedures need not necessarily be identical but they should incorporate
rules to protect the accused, limit police power, ensure equitable
tribunals and provide decent prisons". 2/ Growing interchangeability and
the capacity to use information and evidence across national jurisdictions
are of major importance in the fight against transnational crime.
33. Multilateral cooperation should not be seen simply as a compromise
between various bilateral efforts. Rather, it is something that has
significant benefits in its own right, as many regional arrangements have
demonstrated. They can be understood as the criminal justice counterpart to
the growth of economic and political integration in many regions of the
world, such as in western Europe. Regional cooperation in judicial and
criminal matters is the natural concomitant to efforts to achieve political
and economic union, even though it involves some of the more sensitive and
complex aspects of national sovereignty. In this sense, multilateral
cooperation can be understood as a spin-off from broader political and
economic processes, which are proceeding with increasing frequency and
speed - albeit based on the recognition that complete uniformity of
national legislation is neither feasible nor desirable. As has been
observed, "the criminal law systems are all finely tuned to the specific
characteristics of the different countries. This delicate equilibrium
should not be disturbed, unless a substantial advantage is to be gained".
3/
34. To be sure, the elaboration of an international instrument such as a
convention is not obstacle-free. While a multilateral convention would
provide a way of augmenting resources and mobilizing mutual support and
assistance for what individual States are unable to do alone, it should be
stressed that multilateral responses can only work if each party makes
sacrifices commensurate with those of others. Avoiding this kind of
obstacle requires a commitment to take whatever action is necessary despite
the cost. If a convention is to be effective, it needs States to join and
subsequently to exhibit the will and capability to meet their obligations
under it. As has been noted: "Only if most countries were willing to re-
examine some deeply entrenched legal procedures, and to recognize that
their own traditional way of doing things was not necessarily the best or
most effective approach to the problems in question, would the concepts of
multilateral ... conventions become a reality". 4/
35. One of the difficulties with such a new instrument may be its content.
Similar conventions on terrorism and drug trafficking have been oriented
towards a specific type of crime. The question arises, therefore, whether
a new international instrument on organized transnational crime should
cover the many criminal activities in which organized criminal groups are
engaging, or should focus on the way in which countries should respond to
the threat posed by transnational criminal organizations. The problem with
concentrating on the crimes is that they are so extensive -and it is
difficult to be all embracing. The implication is that attention should be
focused on the second aspect, that is the responsibility of Governments to
respond vigorously to the challenge, building upon the experience developed
in the process of elaboration, ratification and implementation of the 1988
Vienna Convention and starting from the already existing proposals on
legislation and law enforcement methods covered in the Convention itself.
The extent of international support for the Vienna Convention is
extraordinary: more than 100 States are parties to it. That Convention,
thanks to the commitment and political will of such a large number of
countries, has had a major impact in bringing about concerted action
against drug trafficking.
36. Another difficulty lies in the fact that the elaboration of
international conventions may be a long process that would require the
achievement and maintenance of consensus at every stage. Breadth of
participation should not be achieved at the expense of depth and intensity
of cooperation. However, in the presence of a strong political will and
broad consensus, as evidenced by the priority attached to action against
organized transnational crime and the Naples Political Declaration and
Global Action Plan, it would be possible to ensure that the negotiation
process does not result in a diluted document that falls short of
establishing the provisions necessary for an effective response to
transnational criminal organizations. Effective action against organized
transnational crime requires a framework within which States could pursue
cooperation at all levels in a more systematic and effective way. Such a
framework would make it possible to bridge the gaps that exist at present
and are readily and fully exploited by organized transnational crime. For
example, the Vienna Convention has given rise to a wave of legislative
activity at the national level, supported by the legal assistance programme
of the United Nations International Drug Control Programme, as well as to
the adoption of numerous bilateral and regional agreements that implement
and further the Convention's provisions.
37. In spite of its difficulties, the elaboration of an international
convention against organized transnational crime could bring a number of
advantages and may represent an invaluable potential for universal
adherence. First, the very act of negotiating a convention would have
certain benefits. For example, it would focus attention on the problem.
Although specific criminal organizations have been given considerable
attention, the emergence and expansion of transnational criminal
organizations as a generic threat posing problems in many respects
exceeding those of international terrorism has been relatively ignored.
Indeed, there has been a paucity of both journalistic and scholarly
analyses dealing with transnational criminal organizations and their
activities as a problem faced not only by individual States but also by the
international community as a whole. A convention on organized
transnational crime would be very important in symbolic terms, as it would
represent the collective judgement of the international community that the
problem has become sufficiently serious to command a global response. This
could also have an important impact in terms of legitimizing national
actions, including national legislation against the activities of organized
transnational crime. In addition, the negotiation of a convention would
lead to greater interaction among Governments and particular national
agencies in ways that would themselves lead to enhanced international
cooperation. Developing a knowledge of other negotiators can be important,
particularly if these negotiators also have some role in the subsequent
implementation of policy.
38. Secondly, once a convention was in place, it would have several
positive effects: (a) it would provide a set of standards and expectations
that the signatories would have an obligation to live up to; in a sense it
would facilitate the exertion of peer pressure as a common effort of the
international community in addressing the problem; (b) it would have an
important regularizing effect and provide for a more standardized form of
cooperation than does the extension of bilateral accords, each of which has
its own distinctive features; (c) it would facilitate more systematic
assistance in the areas of criminal justice and law enforcement, rather
than ad hoc approaches; (d) it would provide guidance for a programme of
implementation that would assist in the dual objectives of harmonizing law
enforcement risk and making it more difficult for transnational criminal
organizations to infiltrate legitimate business.
39. It is evident that there are both advantages and disadvantages to a
multilateral convention against organized transnational crime. The issue
is not clear-cut. If Governments do decide that the advantages outweigh
the disadvantages, however, there are several other requirements that would
have to be met to transform it from a theoretical possibility into a
feasible and practical proposition. First, it would necessitate the
maintenance of the broad-based consensus on the seriousness of the
challenge posed to nations and the international community by organized
transnational crime. The key to maintaining and further broadening this
consensus is for Governments that are affected by organized transnational
crime to recognize that they are not alone, and for Governments that are
not currently the target of organized transnational criminal activity to
understand that they are not immune, and that it may only be a matter of
time before the problem impinges on them directly. Secondly, another
crucial requirement is that the idea of elaborating a convention should
have the unequivocal backing of most States. The more diverse this group
of States is, the better, on the understanding that a convention should not
be seen as an attempt by any particular grouping to impose required reforms
of behaviour on others with different levels of economic development or
cultural traditions. The willingness of several highly committed States to
give a high priority to successful implementation could create a bandwagon
effect, encouraging others to join. A third requirement is that there
should be a clear idea of the purpose and scope of a convention. It has to
be carefully formulated in ways that specify the target (transnational
criminal organizations and their members), the obligations that States
would incur (in terms of taking initiatives in their own national law, in
positively responding to requests for assistance from others and in
providing and exchanging information) and provisions for implementation
(both procedural and substantive).
B. Increasing reliable knowledge
40. Any discussion of international cooperation will necessarily involve a
clear understanding of priorities and objectives. International
cooperation on a particular issue, such as the ability of criminal justice
systems to prevent and control organized crime, implies a thorough
knowledge of the risks involved in both the short and long term. In
addition, it requires an accurate assessment of the capacity of the
criminal justice system to deal with complex forms of crime. A combination
of these parameters, with the appropriate balance, would serve to put
international cooperation into perspective. Only knowledge and careful
evaluation can lead to the appropriate selection of priorities and
objectives. Policy makers at the national level, those ultimately capable
of and responsible for building, sustaining and advancing international
cooperation, as well as setting its pace, need this knowledge to guide them
towards rational decisions. Policy makers also have to be able to strike
the appropriate balance between competing interests, both political and
financial. Balancing the multiple interests competing for resources is
difficult for every Government, regardless of its level of development.
International cooperation requires undivided attention and genuine
commitment at all levels of Government for the pooling and allocation of
resources commensurate to the risk posed to the international community by
organized transnational crime.
41. The tools available to Governments are often found to be unequal to
the task of effectively combating the new transnational manifestations of
criminality and it is therefore through their attacks on traditional
principles and sovereignty that organized criminals have succeeded in
carrying out their illicit operations at a considerably lower risk to
themselves. If criminal organizations are attracted to the process of
internationalization because they have found areas in which the risk from
law enforcement authorities is minimal, then coordinated international
action to equalize this risk in various countries will minimize or contain
the process. Equalizing the risk means raising the quantity, quality and,
more importantly, compatibility of preventive and control action at an
adequate level on a world-wide scale and putting in place mechanisms
designed to maintain and improve that level in a consistent and coordinated
fashion.
42. The capacity of States to prevent and control organized transnational
crime depends largely on knowledge and the availability of reliable
information about its characteristics, the structures of organized criminal
groups, their methods of operation and their interests with respect to
illicit activities. In many developed countries, the occurrence and growth
of organized crime has led to considerable high-quality work with respect
to accumulating knowledge and collecting reliable information. In spite of
these advances, the task facing law enforcement agencies and the criminal
justice system in general remains an arduous one, because of the increased
diversification and expansion of organized crime across borders, as well as
its tendency to become involved in activities characterized by high
complexity. In most developing countries and countries in transition,
however, various factors, ranging from lack of adequate resources to recent
rapid political and economic developments and changes, have slowed down or
inhibited the process of attaining a thorough understanding of the
situation. Further, there are considerable difficulties in evaluating the
threat posed by organized transnational crime and the capacity of law
enforcement and criminal justice systems to respond to it. Compounding
these difficulties are changes in the characteristics of organized
transnational crime and an almost dramatic increase in the sophistication
of its operations, as well as its mounting expansion in response to
increased opportunities and weaknesses of national institutions.
43. The Naples Political Declaration and Global Action Plan emphasized the
importance of adopting a generally agreed concept of organized crime as a
basis for more compatible national responses and more effective
international cooperation. In the absence of the comprehensive knowledge
about organized crime referred to above, arriving at such a common concept
may entail increased difficulties. Consequently, the full potential of
international cooperation would be rather difficult to realize, leaving
room for loopholes that have been, and continue to be, exploited by
organized transnational crime. The lack of a common concept of organized
crime can create considerable obstacles to the efforts of national law
enforcement and judicial authorities to detect, prosecute and adjudicate
cases of organized crime. One of the key areas affected would be the
exchange and sharing of information and intelligence that is vital to these
efforts. In many cases, even where bilateral or multilateral cooperation
arrangements exist, there appears to be a lack of open channels of
communication and information exchange between Governments and between the
competent national authorities. A reason often cited is the lack of
understanding of a country's legal system and of the capacity of law
enforcement and judicial authorities to produce the best possible results
with the relevant information. Such concerns, which may also include
apprehensions regarding the security of information or intelligence, have
been known to hamper major investigations and cause long delays in judicial
proceedings, sometimes resulting in the virtual impunity of the individuals
apprehended, at a high financial and human cost.
44. The need to improve knowledge on organized crime and its transnational
dimensions and activities has become more urgent at present, mainly because
of the increased realization of its effects on national and international
financial systems, as well as on institutions and society at large. There
are two levels of knowledge required, which need to coexist and be
developed concurrently.
45. The accumulation of theoretical knowledge has irreplaceable value for
the purposes of educating younger generations and the public in general and
for devising strategies and developing measures to counter the corrupting
effects of organized crime on societal values. Theoretical knowledge,
however, cannot substitute for the practical, operational knowledge that
needs to be imparted to law enforcement and judicial personnel to enable
them to prevent and control organized transnational crime at all levels.
Each type of knowledge will stand to benefit greatly from the other, and a
balanced development of both will go a long way towards achieving effective
action against organized transnational crime. Academic institutions and
professional associations have a major role to play in accumulating
theoretical knowledge on organized transnational crime and in disseminating
this knowledge, in close cooperation with governmental agencies and the
education system, as well as in concert with the media, non-governmental
organizations and the private sector.
46. The development of operational knowledge requires the capacity to
process and evaluate information and intelligence derived from day-to-day
operations and investigations, and from the experience of other countries
in the field. While research is a major component of theoretical
knowledge, experience and expertise acquired in field work form the basis
of practical knowledge. Another essential element of practical knowledge
is the ability of law enforcement and judicial personnel to evaluate the
information collected and processed and the intelligence accumulated. This
is particularly important in connection with the detection, investigation
and adjudication of economic crimes and other illicit activities of
organized criminal groups involving financial operations and business
transactions.
47. The capacity to collect, process and evaluate information and
intelligence not only at the national level, but also across borders,
requires careful planning and consistent implementation of relevant
strategies and policies, as well as emphasis on human resources
development. In addition, the use of, and reliance on, modern
telecommunications and data-processing equipment is of considerable
importance, in view of their increasing utilization by organized
transnational crime. Therefore, the accumulation of practical knowledge
requires, in addition to commitment and determination, major and long-term
investments by Governments, often not only at the operational level but
also at the institutional level.
48. For the purpose of the acquisition and dissemination of theoretical
knowledge, academic institutions, professional associations and the media
should be actively and tangibly encouraged and supported, and programmes
should be put in place to enlist the involvement and participation of the
private sector and non-governmental organizations. Comparative studies
between practices and experiences in different countries would contribute
to the accumulation of both types of knowledge, while the capacity to
exchange and use information and intelligence would strengthen
international cooperation and render action against organized transnational
crime more effective.
49. In an effort to begin collecting information to facilitate the process
of accumulating knowledge, the Crime Prevention and Criminal Justice Branch
included the issue of transnational crime for the first time in the Fourth
United Nations Survey of Crime Trends and Operations of Criminal Justice
Systems. The preliminary results of the Survey were submitted to the Ninth
United Nations Congress on the Prevention of Crime and the Treatment of
Offenders (A/CONF.169/15 and Add.1), and were made available to the
Commission on Crime Prevention and Criminal Justice at its fourth session.
50. One of the conclusions that can be drawn from the replies provided by
Governments is that there are considerable difficulties in many parts of
the world in actually identifying activities that have a predominantly
transnational character and in which organized criminal groups are engaged.
While the potential effects of these activities are appreciated and there
are indications of measures being devised to begin coming to terms with the
problems created, in many cases there appears to be a lack of the necessary
analysis that would focus on the specific characteristics of organized
crime and the transnational dimensions of its activities. Consequently,
there is a delay in legislative and regulatory action which, drawing on the
results of such analysis, would prevent and control the further expansion
and diversification of organized transnational crime, and promote more
effective international cooperation.
51. Developed countries are generally in a position to devote the
necessary resources for acquiring the body of both theoretical and
practical knowledge that is required for the effective prevention and
control of organized transnational crime and, as discussed earlier,
considerable efforts in that direction are in progress.
52. However, the difficulties encountered by developing countries and
countries with economies in transition make assistance crucial. The United
Nations should be in a position to assist countries, through the provision
of advisory services and training, in developing the means and techniques
of gathering, processing and evaluating information and intelligence on the
operations of organized transnational crime, on its methods and interests,
as well as on the ways of laundering and using the proceeds of its
activities. In collecting and processing information, emphasis should be
placed on the expansion of organized crime across borders and on its
increased levels of diversification and sophistication, which are elements
that require particular attention since they differentiate this form of
crime from other criminal activity. The accumulation of practical
knowledge would largely depend on the studies that could be carried out at
the national level, as well as on the comparative studies that could be
carried out at the regional and international levels on the basis of
reliable information.
53. In accordance with the Naples Political Declaration and Global Action
Plan, the United Nations was mandated to assist States in the specific
actions required for the increase and improvement of knowledge on organized
transnational crime and its dynamics. Provision of the information and
materials requested by the Secretary-General pursuant to Economic and
Social Council resolution 1995/11 would permit the undertaking of a
comprehensive and comparative study of the situation in the various regions
of the world, thus contributing to the achievement of the goal of improving
reliable knowledge on organized transnational crime, its structure and
dynamics. According to the above-mentioned Council resolution, the
collection and analysis of information should be carried out drawing on the
contribution of States, which could include teamwork by highly qualified
experts. This contribution would be invaluable, particularly given the
need to take into account and build on work already done in this area, and
considering the limited resources available to the United Nations crime
prevention and criminal justice programme. The assistance of highly
qualified experts, placed at the disposal of the Secretary-General by
States and relevant international organizations, would greatly enhance the
value, both scientific and practical, of the analysis and facilitate the
work required for the necessary comparative study.
54. Through a global assessment of the transnational organized crime
situation, the study would seek to contribute to a better understanding of
the problems arising from differences that exist or emerge among various
countries in the perception and evaluation of organized transnational
crime, thus leading to the gradual development of a common perception of
the phenomenon, and a global strategy for more effective international
cooperation. The study should draw on national experiences, assisting, in
the process, individual countries that lack the relevant capacity to
identify the problem and begin collecting and processing reliable
information. It should include an examination of specific types of
criminality that are considered particularly dangerous or alarming and an
examination of the problems arising from the expansion or reallocation of
transnational criminal organizations to countries where defence mechanisms
are weak. It should also consider conditions that are conducive to the
rise and growth of criminal organizations, such as social, economic and
political factors, structural characteristics of organized crime, as well
as organizational shortcomings in the control agencies. It should include
an analysis of the problems related to the different degrees of development
of laws and regulations in individual countries, as well as an analysis of
the activities and methods of operation of transnational criminal
organizations. The results of the study would also be used for the
development of special programmes, courses and curriculums for academic
institutions, to ensure that theoretical knowledge is increased, improved
and disseminated, and to create the basis for long-term and consistent
action against organized transnational crime.
C. Assistance in the legislative and regulatory fields
55. Legislation, both substantive and procedural, occupies a prominent
place among policies to combat organized transnational crime. It remains
one of the primary tools at the disposal of Governments for the purpose of
protecting the values and security of their societies and fostering growth
and development. Legislation, however, needs to be dynamic and to adapt
itself to, if not to foresee, developments. In the case of organized
transnational crime, legislation should be developed with a view to
fostering international cooperation and concerted action. Legislation
should be structured and elaborated in such a way as to deal severe blows
to organized crime groups at points where they would be most effective.
56. The Naples Political Declaration and Global Action Plan recognized the
great importance of adequate legislative and regulatory measures for the
prevention and control of organized transnational crime. In particular, it
was recommended that States examine the experience of countries that have
confronted organized crime and the intelligence derived from the analysis
of its structures and criminal activities, as useful guiding principles
concerning which substantive, procedural and regulatory legislation and
organizational structures are necessary to combat the phenomenon. In
addition, the regulatory measures recommended in the Naples Political
Declaration and Global Action Plan with respect to money laundering and the
proceeds of crime, and other law mechanisms to reinforce transparency and
integrity in business and government, should be considered preventive
measures of equal importance with penal law means of combating organized
crime. It should be mentioned that attention was also paid to the possible
need for substantive legislation that would address participation in
criminal organizations or conspiracies, and imposing criminal liability on
corporate bodies, as a means of strengthening capabilities to combat
organized crime domestically and improve cooperation internationally.
57. As mentioned above, legislative and regulatory measures for the
prevention and control of organized transnational crime are still lacking
in a number of countries, in spite of the willingness to effectively
address this form of crime. In the absence of specialized theoretical and
practical knowledge, and in view of the difficulties faced in obtaining
such knowledge, as well as the results of the experience accumulated in
other countries, the elaboration of strategies and their implementation
through legislative and regulatory measures are daunting tasks for many
countries, particularly developing countries and those with economies in
transition.
58. In the Naples Political Declaration and Global Action Plan, States
expressed the wish to strengthen and enhance the capability of States, as
well as the United Nations and other relevant global and regional
organizations, to achieve more effective international cooperation against
organized transnational crime, in relation, inter alia, to closer alignment
of legislative texts concerning organized crime. In fact, divergences in
legislative and regulatory measures have often been cited as among the
principal difficulties encountered in bilateral and multilateral
cooperation.
59. Governments may need to consider reviewing their criminal policies
from both the substantive and the procedural perspective. From the
substantive point of view, attention should be paid to the criminalization
of certain forms of behaviour. The experience gained in the countries
where organized crime is criminalized by comprehensive and appropriate
legislation should encourage the elaboration and adoption of similar laws.
This could be done in a concerted manner, thus avoiding discrepancies among
the various countries and promoting the convergence of mechanisms and
policies. The international debate on organized transnational crime has
already reached some landmark points and this should testify to both the
awareness and the willingness to fight it in a concerted and coordinated
fashion. From the procedural point of view, Governments would need to
consider issues related to traditional concepts of sovereignty and
individual decision-making in the light of problems posed by new criminal
activities. The realization at the political and decision-making level of
the actual magnitude and complexity of organized transnational crime may
serve as a basis for elaborating improved forms of international
cooperation, drawing on the pool of knowledge and experience in the
scientific community.
60. The differences between civil law and common law systems have not
prevented international cooperation in the past. The long-standing
tradition of bilateral treaties and multilateral conventions supports the
idea that, where agreement is reached on a topic, mutual cooperation may
run smoothly. The problem is how to develop strategies and techniques that
will reduce the number of obstacles to international cooperation. The most
recent instruments of international criminal law could provide useful
suggestions to that end.
61. The first step towards convergence, and eventual closer alignment of
legislative and regulatory measures, would be through the adoption and
promulgation of policies of demonstrated effectiveness that do not generate
problems of compatibility where the legal systems differ, but that actually
facilitate cooperation between countries. In the area of substantive
legislation, efforts against organized transnational crime would be
considerably strengthened through the introduction of reforms focused on
criminalization of participation in a criminal organization,
criminalization of conspiracy or similar forms of inchoate offences,
prohibition of laundering of criminal proceeds, and sanctions and other
measures, such as the confiscation of illicit proceeds, aimed at defeating
the economic power of criminal organizations.
62. In any effort towards closer alignment of the legislative approach to
organized transnational crime, the regulatory measures necessary to obtain
maximum transparency of financial systems and to prevent monopolies should
not be neglected.
63. In accordance with Economic and Social Council resolution 1995/11, the
Secretary-General is to submit to Member States for their consideration at
the fifth session of the Commission on Crime Prevention and Criminal
Justice a proposal on the creation of a central repository of existing
legislative and regulatory measures, and information on organizational
structures designed to combat organized crime, taking into account the
capabilities of the United Nations Crime and Justice Information Network
and the activities of other United Nations and relevant intergovernmental
bodies. Should States deem it appropriate and desirable to proceed with
the creation of such a repository, their continuous support and assistance
would be a sine qua non for its usefulness and effectiveness. Such a
repository would need to be continuously updated and complemented with
comparative analyses and commentaries, as well as with information on the
ways that measures are applied and on their contribution to the prevention
and control of organized transnational crime. The material and information
contained in the repository would be placed at the disposal of States and
could be used in advisory services and training undertaken by the United
Nations in response to requests for assistance in the field of prevention
and control of organized transnational crime. The results of the
comprehensive study on the organized transnational crime situation in the
various regions of the world, mentioned above, would be combined with these
comparative analyses to enhance the options available to States wishing to
enact legislative and regulatory measures.
64. In Council resolution 1995/11, the Secretary-General was requested, as
necessary, to submit concrete proposals to the Commission for approval,
with a view to developing practical models and guidelines for substantive
and procedural legislation, building on the experience and expertise of
States and drawing on contributions from relevant organizations. Such
models and guidelines would rely on information collected and analysed
regarding best practices with respect to legislative and regulatory
measures, as well as on the knowledge and experience accumulated through
the comprehensive study. The United Nations could assist requesting States
in tailoring these models and guidelines to their particular exigencies and
their legal, cultural and social traditions, in order to facilitate
integration of the relevant policies and measures within their specific
systems, as well as their implementation. In specific areas that present
particular difficulties, such as the laundering and use of the proceeds of
crime, special attention could be given to assisting States not only in
obtaining information on measures and developing the appropriate
mechanisms, but also in assessing the needs of their systems in order to
maximize the effectiveness of measures and in identifying the most
appropriate mechanisms for their implementation.
D. Technical cooperation
65. Another issue of central importance, and one directly linked to the
fundamental concept of international cooperation, is technical assistance.
Effective international cooperation often depends on the capacity of the
criminal justice system of a given country. Raising the level of
knowledge, expertise and professionalism of a criminal justice system
requires resources that many countries lack. Technical assistance is then
the only way of ensuring that structural difficulties are overcome. The
provision of technical assistance can take many forms, depending on the
needs of the recipient and on the availability of donor resources.
Technical assistance can range from advisory services to the provision of
equipment, and will almost invariably include specialized training. The
planning and execution of technical assistance projects require constant
cooperation and consultation with the competent authorities of the
recipient country at every stage of the process. Particular attention
should be given to ensuring that assistance is based on the actual needs of
the country in question, to be determined by that country, if necessary in
consultation with those providing the assistance. Assistance needs to be
tailored not only to the specific needs but also to the political, cultural
and legal traditions of the recipient country. It should be realized that
measures and policies that have proved effective in dealing with a specific
problem may need to be substantially modified to retain their effectiveness
in different settings or systems. In many cases, the very basic principles
or rationale of action are the only elements that can be retained, and new
measures and policies have to be designed. A failure to structure and
deliver technical assistance on these grounds risks not only rendering such
assistance entirely ineffective but also creating an environment that is
far from conducive to meaningful cooperation.
66. The overall capacity and stage of development of the criminal justice
system are factors that should be taken into account in all technical
assistance efforts, particularly when such assistance is intended to help
the recipient country to deal with organized transnational crime. Because
of the sophistication of this form of crime, assistance is often aimed at
strengthening or improving legislative and law enforcement measures. Such
interventions, however, need to be planned and developed on the basis of a
thorough knowledge of the criminal justice system in question and its
overall capacity, as well as on a careful evaluation of their impact on
that particular criminal justice system. For example, the establishment of
a special investigation unit for offences related to the laundering of the
proceeds of crime may improve the detection and apprehension of money
launderers. Its successes may, however, be frustrated if the prosecuting
and judicial authorities are not in a position to evaluate and use the
evidence that the efforts of that unit have yielded.
67. Another issue that needs to be carefully considered is coordination.
Multiple assistance projects are directed almost simultaneously at the same
component of the criminal justice system, overlapping if not conflicting
with each other. The result is an unnecessary duplication of effort, which
may lead to confusion among recipients and thus render technical assistance
ineffective. Coordination is necessary on the part of all concerned and
should be viewed as an essential complement to the structured and thorough
preparation and provision of technical assistance. Without it, the
resources devoted to such assistance fail to achieve the intended goals.
68. The traditional rationale for technical assistance, either in drafting
new legislation or in training criminal justice personnel, is to help
countries to cope more effectively with their problems. The global
situation has radically changed in the past few years, however, and so have
the needs and goals of the international community. Technical assistance
needs to be viewed in the context of the new political and economic
realities and to be adapted to them, in terms of both concept and
objectives. Technical assistance programmes should be designed to enable
countries to equalize the organized crime risk and to do so in such a way
as to contribute to the collective interest in deterring the expansion of
organized crime.
69. If this objective is missed in planning and providing technical
assistance, such assistance will remain a solidarity tax that developed
countries pay directly or through multilateral mechanisms. It will be
welcomed, but not enough, and the more countries are constrained by limited
resources, the less technical assistance they will provide. It is
essential, therefore, that technical assistance become more and more a
productive investment for three different types of interests: those of the
countries receiving assistance, those of the countries giving it and those
of the international community.
70. A fundamental purpose of international cooperation is to contribute to
the creation of self-reliant capacities in developing countries, as well as
in countries with economies in transition. Strengthened technical
cooperation in the fight against organized transnational crime should be
viewed as a significant step in that direction. The operational activities
of the United Nations crime prevention and criminal justice programme
should be geared to developing expertise, especially in countries where it
is scarce, and to promoting the highest standards of professionalism and
specialization. Training and upgrading the skills of personnel working in
the various areas of criminal justice is considered crucial, particularly
with respect to the investigation, prosecution and adjudication of complex
cases. For the purpose of maximizing resources and raising awareness,
training seminars would be first organized at the regional level,
concentrating on common exigencies and problems, with a view to eventually
responding to requests for training courses at the national level. In order
to achieve these aims, appropriate expertise would need to be identified
and training material developed that would cater to the specific
requirements of each region or each group of trainees. Furthermore,
effective channels of communication are necessary in order to assess needs
and prevailing circumstances, so that training activities can be tailored
accordingly. The Commission may wish to identify the most appropriate ways
of enabling the United Nations to respond to the requests of States and
provide the assistance outlined above.
71. The accumulation of knowledge and expertise, and the development of
the capacity to collect, process and analyse reliable information, will
require efforts spanning a certain period of time. This would be necessary
to put together the appropriate expertise and to carry out a study that
would be truly comprehensive and constitute a major contribution to the
common efforts of the international community against organized
transnational crime. Capacitybuilding requires a long-term and consistent
commitment to ensure that the benefits of assistance can be sustainable
through the consolidation of mechanisms and procedures, and the creation of
the necessary infrastructure. Organized transnational crime, however,
continues to expand its reach and constitutes a growing threat to the
international community. A well-balanced approach is, therefore,
essential. The efforts to accumulate knowledge would need to be undertaken
simultaneously with meeting the current and pressing needs of States in
taking immediate measures to prevent and arrest the expansion of organized
transnational crime, and mitigate its effects on their economies and
institutions. Concurrently with building the capacity for pursuing common
objectives, there is an urgent need to strengthen existing mechanisms and
institutions to fight against the most immediate manifestations and threats
posed by organized transnational crime.
72. In order to contribute to this balanced approach, the United Nations
should assist requesting States in assessing their immediate needs, through
the provision of advisory services. Such services should also be provided
in reviewing existing measures, mechanisms and institutions in order to
identify and put in place modalities for strengthening their capacity to
respond to the problems created by the new manifestations of organized
transnational crime. In response to requests from States, the United
Nations should provide expert advice and options on the establishment of
special investigative units and on developing reliable evidence-gathering
techniques. For the purpose of strengthening the capacity of States to
cooperate and exchange information, intelligence and experience, the United
Nations should assist with the creation of special mechanisms and the
implementation of appropriate measures. The pressing needs that currently
exist are evidenced by the increase in requests for assistance which the
Crime Prevention and Criminal Justice Branch has received in the past year.
The Branch, often cooperating closely with the United Nations International
Drug Control Programme, has begun to respond to such requests from the
Governments of Belarus, Kyrgyzstan, Pakistan and the former Yugoslav
Republic of Macedonia.
V. CONCLUSIONS
73. States have attached high priority to the implementation of the Naples
Political Declaration and Global Action Plan, as well as to the United
Nations crime prevention and criminal justice programme and its role in
such implementation. This priority should soon be translated into practice
if the momentum of the World Ministerial Conference on Organized
Transnational Crime is to be sustained. The consensus on the threat posed
by organized transnational crime and the urgency of effectively combating
it, and the political will to take global action create the necessary
foundations for implementation. Efforts by the international community and
the United Nations should be guided by this consensus and political will
and be geared towards sustaining and broadening them.
74. Building on the established consensus and taking full advantage of the
present political climate, which is conducive to more meaningful
international cooperation, States should specify the activities that need
to be undertaken for implementation, agree on the pace of such
implementation and devote their energies and undivided attention towards
achieving the common goals identified in the Naples Political Declaration
and Global Action Plan. Such action is essential to enable the Commission
on Crime Prevention and Criminal Justice and the United Nations to
undertake rational and effective planning.
75. In view of its general mandate and universal constituency, the United
Nations provides an appropriate mechanism for the promotion of global
action. The United Nations has been given a special responsibility to
improve countries' capacities to combat organized transnational crime and
can serve as global catalyst, bringing together divergent views, equalizing
the burden and pace of implementation and encouraging efforts in that
direction. While the United Nations is naturally held to austere standards
of efficiency and effectiveness, it cannot move ahead without Member States
providing it with the means to do so. In the absence of these means, and in
spite of its best efforts to use its limited resources with maximum
efficiency, it becomes very difficult to make a real impact and produce
measurable results. As with any other action on a global scale, resources
are bound to be a central issue. The Secretary-General has begun
translating into practice the priority attached to the fight against
organized transnational crime in the context of the proposed programme
budget for the biennium 1996-1997. 5/ Regular budget resources, however,
can only provide a minimum framework and, while they should be further
increased, are not likely to be sufficient for the required action. They
need to be supplemented by extrabudgetary resources through voluntary
contributions from States, particularly in view of the vast needs of
developing countries and countries in transition and the central role that
the provision of practical assistance is bound to play in any efforts
towards implementation of the Naples Political Declaration and Global
Action Plan.
Notes
1/ Ninth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, Cairo, 29 April-8 May 1995 (A/CONF.169/16), chap.
I, resolution 3.
2/ Testimony of Philip B. Heymann, Deputy Attorney General, to the
Foreign Affairs Committee, United States House of Representatives, 14
September 1993, p. 3.
3/ See Fleur Keyser-Ringnalda, "European integration with regard to the
confiscation of the proceeds of crime", paper compiled for the Tenth
International Symposium on Economic Crime, Cambridge, July 1992.
4/ Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, Havana, 27 August-7 September 1990 (United Nations
publication, Sales No. E.91.IV.2), chap. IV, sect. C, para. 253.
5/ See Official Records of the General Assembly, Fiftieth Session,
Supplement No. 6 (A/50/6/Rev.1), sect. 13.
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