international cooperation and transnational organized crime

11
International Cooperation and Transnational Organized Crime Author(s): Bruno A. Ristau, Ugljesa Zvekic, Mary Ellen Warlow Reviewed work(s): Source: Proceedings of the Annual Meeting (American Society of International Law), Vol. 90, ARE INTERNATIONAL INSTITUTIONS DOING THEIR JOB? (MARCH 27-30, 1996), pp. 533-541 Published by: American Society of International Law Stable URL: http://www.jstor.org/stable/25659076 . Accessed: 22/11/2011 02:14 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].  American Society of International Law is collaborating with JSTOR to digitize, preserve and extend access to Proceedings of the Annual Meeting (American Society of International Law). http://www.jstor.org

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Page 1: International Cooperation and Transnational Organized Crime

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International Cooperation and Transnational Organized CrimeAuthor(s): Bruno A. Ristau, Ugljesa Zvekic, Mary Ellen WarlowReviewed work(s):Source: Proceedings of the Annual Meeting (American Society of International Law), Vol. 90,ARE INTERNATIONAL INSTITUTIONS DOING THEIR JOB? (MARCH 27-30, 1996), pp. 533-541Published by: American Society of International LawStable URL: http://www.jstor.org/stable/25659076 .

Accessed: 22/11/2011 02:14

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of 

content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms

of scholarship. For more information about JSTOR, please contact [email protected].

 American Society of International Law is collaborating with JSTOR to digitize, preserve and extend access to

Proceedings of the Annual Meeting (American Society of International Law).

http://www.jstor.org

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Transnational Crime

The panel was convened at 9:00 a.m., on Saturday,March 30, by itsChair, Bruno

A. Ristau,* who introduced the panelists: Ugljesa Zvekic, Research Coordinator, UN

InterregionalCrime and JusticeResearch Institute,Rome; andMary Ellen Warlow, U.S.

Department of Justice.

International Cooperation and Transnational Organized Crime

By Ugljesa Zvekic**

The main theme of thismeeting is "Are international institutionsdoing their job?"The answer is probably "yes" and "no." But perhaps amore pertinentquestion is how

well theywill do their job tomorrow. This paper will discuss several issues related to

internationalcooperation

withrespect

to transnationalorganized crime, with

aview

to

providing some indicators thatmay assist in the appreciation of themain theme of the

meeting. The challenge posed by transnational organized crime today and tomorrowwell

exemplifies considerations regarding thepresent and thefuture f international institutions.As a criminologist, I attempt in this paper to balance considerations and concerns of

criminologywith those of criminal justice. The topic chosen requires a blend of approaches,as does the strategyof international cooperation. Therefore thediscussion will focus on

twobroad issues: certain characteristics of transnationalorganized crime; and international

responses through internationalcooperation.

International Trends inOrganized CrimeWorld interdependence and ease of communication, transport,trade andmigration?as

well as an emerging transnational regulatoryframework (partly interstate nd largelydevel

oping as a result of the activities of transnational corporations)?have created enormous

opportunities for increasingbenefits across theworld, although not necessarily in n equitable manner.

That crime fullyparticipates in theseglobal processes is almost a criminological truism.As economics, politics and culture give rise to and shape crime patternswithin national

boundaries, so do processes of global exchange give rise to and shape transnational crime

patterns.Transnational

organizedcrime isneithera

responsetonor a

consequence of globalinterdependence; it is an almost natural component of theglobal internationalprocesses of

change. Just as themain economic and political actors are increasingly of a collective

(corporate) nature, so are criminal activities. The blending of corporate and criminal andtheexploitation of internationalmarket opportunities lie at theheartof themodern criminal

enterprise.The use of violence, corruption and evasion of laws aremethods forgainingprofit,which, in turn, is invested inother illegal activities or used topenetrate legitimatefinancial and economic markets (for example, bymoney laundering).Major activities inwhich transnational criminal organizations are involved include: drug trafficking, raffick

ing in nuclear materials; waste dumping; illegal arms trafficking; utomobile theft nd

smuggling; trafficking npeople (illegal aliens, women and children); and trafficking n

*Law Offices of Bruno A. Ristau, Washington, DC.**UN Interregional Crime and Justice Research Institute (UNICRI), Rome.

This paper mainly draws on the following: Report of theWorld Ministerial Conference on Organized Transnational Crime, UN Doc. A/49/748 and background documents (E/CONF.88/2,3,4,5 & 6); E. Savona, OrganizedCrime Across the Borders, HEUNI papers, No. 6/95; H.F. Woltring, International and Regional Developments in the Field of International Co-operation inPenal Matters (to be published).

533

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534 ASLL Proceedings, 1996

body parts. Criminal organizations are internationalizing theiractivities and, at the same

time,maintaining their local position; thus, they are influencing local and international

economies, as well as local and international responses to crime. In geopolitical terms,

what used tobe a phenomenon restricted toa few countries has become a diffused processof infiltration nd cooperation. This can be seen particularly in Eastern Europe, which is

not only one of themain producers and exporters of organized crime, but also a recipientand actor inmoney laundering.North America is amajor producer and the largest importmarket, while Western Europe produces, exports and importsorganized crime.Latin Amer

ica,Africa and Asia, albeit with many local variations, are producers and exporters of

organized crime products (for example, drugs), services (forexample, Nigerian couriers)and proceeds of crime.

Organized crime profitsfromunequal market opportunities and unequal criminal justicerisks. That is increased

opportunitiesin

illegalmarkets

(suchas the sale of cocaine in

Europe and internal conflicts for arms traffickinginEastern Europe), on the one hand,and inappropriate legislation and control structure, n the other. Both influence organizedcrime's transnationalmovements. Inversely,both thereduction of illegalmarket opportunities and an increase incriminal justice riskwill influence thegeopolitics, theorganizational

set-ups and the economic focus and modus operandi of transnational organized crime.

Therefore, equalization of criminal justice riskandmarket opportunitieswill play a significant role inpreventing and controlling transnationalmovements of organized crime. Inter

national cooperation is not only a promising avenue but a necessity for supervising and

appropriately responding to thesemovements.

Trends in International ResponsesWhile international policies are not concerned only with criminal justice, but rather

encompass preventive, developmental, labor and social policies, major achievements have

been made in an effort to internationalize and harmonize criminal justice efforts.There

has been expansion of various formsofbilateral cooperation, including technical assistance

in law enforcement and criminal law reform,bilateral treaties, and a series of informal

working arrangements between law enforcement and the judiciary of a number of countries.

These are all important in termsof attempts to overcome certain difficulties related to

differences in legal systemsotherwise precluding effective cooperation. Bilateral cooperation is also a flexible strategy that, at the same time, requires very clear and precise

obligations on the side of thepartners involved. However, despite increasingly bilateral

networking,major gaps still remain?thus providing opportunities for transnationalorganized crimemovements if,where and when the criminal justice risk isworth taking.There

fore,mutual cooperation isnot only a logical strategyfor thwartingtransnational criminal

processes, it is also an effective instrumenttobuild on and profit from, and with which

to expand the reach of bilateral and other arrangements.At a regional level, therehave been a number of positive developments, particularly in

Europe. The Council ofEurope's Convention on Laundering, Search, Seizure and Confis

cation of theProceeds fromCrime allows parties to itto cover theproceeds of non-drugrelated crimes. It also facilitates cooperation with nonmember states such as Australia and

theUnited States.With a growingmembership ofEastern European countries, ithas gainedin significance. Two regional initiatives in the area of narcotics and money laundering

were inspired by thework of the Financial Action Task Force; theCaribbean Financial

Action Task Force and the Inter-AmericanDrug Abuse Commission (CICAD).As a result of growing domestic concernswith organized crime and concomitant experi

ences gained throughbilateral and regional cooperation, a number of converging trends

in substantive and procedural criminal legislation and law enforcement methods can be

discerned. In the area of substantive criminal legislation, a common theme is that of

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Saturday, March 30: Morning 535

adjusting it to the threats of organized crime,mainly by considering the commission of

crime by an organized group as a qualifying feature and by extending the number of

offenses thatare considered activities of organized crime.Many countries, however, con

sidered the category of conspiracy crime sufficient to cover organized crime and did notfollow theUnited States and Italy in criminalizing membership in an organized crime

association. It is also importanttonote thatmany countries introduced thecrime ofmoney

laundering after the 1988 Vienna Convention but also kept itwithin the limits of the

Convention, that is, by restricting the provision to proceeds from drug trafficking.As

mentioned above, theCouncil of Europe's Convention extended it to nondrug crimes,

although countriesmay limit itsoperation to selected categories of crime by using reserva

tionclauses. Moreover, many countries thathave no specific provisions formoney launder

ing forfeit ssets and confiscate theproceeds of crime. Corruption by organized crime is

alsoincreasingly

dealt withby

the criminaljustice system through

thepromulgation

of

anticorruption legislation and strategies.In the area of procedural legislation and law enforcementmethods, there are still a

number of divergences, ranging froma traditional difference between countrieswithman

datory and discretionary prosecution, throughacceptance or denial of electronic surveil

lance, undercover agents and controlled delivery, to the granting or not of immunity to

informantswho disclose information n organized crime groups and their leaders.A num

ber of thesemethods are increasingly accepted?with certain limitations connected, for

example, with legal tradition,or with particular sensitivity to "privacy" or "political"issues. Use of computers and informationsystems forcollecting evidence andmonitoringfinancial movements, coordination among law enforcement agencies at differentnationaland international levels, and utilization of sources fromfinancial and taxation structures

are becoming common in a number of countries. Yet differences inorganizational struc

turesand admissible methods and evidence still create problems inbilateral, regional and

international cooperation.

A major summary of the internationaldevelopments and a significant impetus toward

enhancing internationalcooperation in thisareawas provided by theUN World Ministerial

Conference on Organized Transnational Crime held inNaples, fromNovember 21-23,1994. There, conference members adopted theNaples Political Declaration and Global

Action Plan Against Organized Transnational Crime. The Declaration fullyrecognizes theimportance of, and urges, internationalcooperation and development and implementationof joint prevention and control strategies. It also identifies theUnited Nations as a focal

point in this field.

The Declaration's main recommendations on a national level are addressed toprovidingeffective provisions and "closer alignment of legislative texts." In particular, they callfor the criminalization of participation in criminal associations or conspiracies and the

imposition of criminal liability on corporate bodies. They also urge the utilization ofreliable evidence-gathering techniques,with caveats as to"the full respect for internation

ally recognized human rights nd fundamental freedoms, in

particularthe

rightto

privacy,"and "judicial approval or supervision as appropriate." Attention isalso given topreventivestrategies,development of specialized investigativeunits, and compensation to thevictimsof organized crime. An attemptwas made to identify number of features of organizedcrime such as group organization, hierarchical links or personal relationships thatpermitleaders to control thegroup; use of violence, intimidation and corruption togain profitorcontrol territories nd markets; money laundering activities; thepotential for expansionof activities beyond national borders; and cooperation with other organized transnational

groups.

At the level of internationalcooperation, theNaples summitcalled for the strengthening

of bilateral and multilateral assistance and the promotion of model treaties. Particular

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536 ASLL Proceedings, 1996

importancewas given to thedevelopment of operational and informalmechanisms, includ

ing"contact points," joint task forces, sharing of advanced technologies andmethodolo

gies, and sharing of intelligence.Much emphasis was placed on technical assistance in

drafting legislation, exchanging informationand trainingcriminal justice personnel. Prevention and control ofmoney laundering and control of theproceeds of crimewere given

particular importance.The Naples summitrecognized and summarized a number of strategies and interventions

in theprevention and control of organized crime that, s mentioned above, already existin a number of countries. The summit has, in a certain sense, confirmed existing trends

and underlined converging elements to facilitate international cooperation. One of themost important onclusions of the summit is thattransnationalorganized crime is a global

phenomenon and a common strategyshould be pursued aimed at "defeating theeconomic

power of criminalorganizations,

which should involve both criminal lawmeasures, in

particular appropriate sanctioning and sentencing, and adequate regulatorymechanisms."

However, theNaples summit did not produce an international convention, but only

requested theUN Commission onCrime Prevention and Criminal Justice to initiate consul

tationsas to theopportunity,possible impact and issues tobe covered by such a conventionor conventions. The issue of an international convention against transnational organizedcrime is as much a political as a legal one. The call for international conventions, with

theirbinding force, assumes the existence of a clear political consensus and will thathas

not yet evolved. There are still a number of issues, includingwhat constitutes transnational

organized crime. As mentioned earlier, theNaples summit attempted to provide certain

definitional indicators but there is stillmuch tobe desired in termsofdeveloping a convention specific toorganized crime. The broader the subjectmatter and thewider thepolitical

assumptions as to its linkswith other crimes (such as terrorism), themore difficult it is

to reach consensus on a definitional level.

As Woltring notes, "The offence-specific conventions, whilst assisting inharmonizingsubstantive criminal laws, failed toadequately address theproblems of internationalcooperation in the investigation, prosecution and punishment [and] frequently they incorporatedby reference pre-existing?and inmany cases non-existent?bilateral and other relation

ships." However, theexperience with the 1988 Vienna Convention is illustrative since it

is "the firstUN Convention which imposes international cooperative mechanisms on itssignatories,whilst at the same time exhorting those signatory states to conclude bilateralor other arrangements thatwould enhance the operation of the obligations contained in

thedrug convention." Until the time comes to reach a consensus and a high degree of

political commitment to adopt an internationalconvention against transnational organizedcrime, themost feasible path to follow is thatof furtherdevelopment of international

instrumentstopromote (as stated in theNaples Declaration)4 'closer alignment or compati

bilityofnational legislationwith regard tocriminalization of organized transnational crime,the adoption ofmore effective criminal justice measures and the greater use ofmutual

assistance and extradition." Woltring's analysis of the state of art in the area of interna

tional cooperation inpenal matters clearly shows that there are still significant impediments, including 4'differences in legal systems, stages of economic development, cultural

and social values; differences inapproaches, particularly by emphasizing methodology as

opposed to the objective sought tobe achieved?the 'letterrogatory' or theprima faciecase requirement; earlier multilateral conventions are both conduct specific and erro

neously assumed the existence of workable modalities and networks." Notwithstandingtheirmerits, theconduct-specific conventions limitdevelopment of a universally effective

mutual assistance scheme.Woltring argues thatprogress has been made, for instance, as

regards the"prima facie case" requirement inextradition, exemplifying thatpolitical will

is important in overcoming a number of difficulties. Another importantfacilitator is to

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Saturday, March 30: Morning 537

focus on the objectives rather than on themethods, as was the case with theOptionalProtocol to theModel Treaty onMutual Assistance regarding theproceeds of crime,1or the

earlier-mentionedCouncil ofEurope's recentconvention on the same subject. Flexibility is

also needed in a sense that, as applied to the principle of reciprocity, "it may not benecessary that very obligation owed by one state toanother have a precise mirror counter

part.''Criminalization of' 'conduct proscribed by thebulk of the internationalcommunity''

in national legislation is of crucial importance to overcome the difficulties related to

the dual criminality rule. Finally, one of themost importantrequirements for effective

internationalcooperation inpenalmatters is tomove away from*'theantiquated individual

responsibility for individual acts basis [which] would leave untouched organizers and

financiers whose conduct is as, ifnotmore, reprehensible."

Conclusion

It has become evident thatthegrowing activities of organized crime pose a serious threatworldwide in termsof national and international security, as well as political, economic,

financial, and social disruptions. A high level of flexibility in structure,activities and

cross-bordermovements, along with the increased sophistication of themodus operandiof members of organized crime groups, require adequate domestic and international re

sponses, cooperation and coordination. Common strategiesneed flexibilityand adaptabilityinorder to avoid a "mirror effect" of reciprocal influences between crime and responsesto it.As organized crime is opportunity-driven, themain international strategies should

aim at reduction of illegalmarket opportunities; equalization of criminal justice risk; and

cooperation inprediction, monitoring, prevention, control and punishment. It is not onlyamatter of criminal law and law enforcement; rather, international strategiesmust develop

equally effective prevention and control. Both prevention and control should aim at the

economic and?in some countries?political power of organized crime, as well as the

interweaving of organized crime and local communities. On the control side, the interna

tional community should aim at thepromotion of bilateral, regional andmultilateral state

based arrangements, as well as informal and operational cooperation between financial

institutions, aw enforcement, thejudiciary and regulatorybodies. Technical assistance to

enhance capacities todeal with organized crime in itsnational and internationalramifica

tions isofparamount importance.

No lessimportant

sachange

in traditionallegal conceptsstrongly tied to individual actors and individual punishments, as well as "shaking off"

some traditional symbols of the sovereignty of national penal law,which impedemore

effective international cooperation. Flexibility, adaptability, openness to new ideas and

methods, pragmatism, rationality and full exploitation of already-existing opportunitiesfor internationalcooperation in reducing crime opportunities and increasing criminal justice risk are sine qua non in international efforts to prevent and control transnational

organized crime. International institutionswill do theirjob ifthey themselves develop the

ability tograsp and handle the realities of today and thechallenges of tomorrow.Visionsof tomorrowwill be less alarming if ctions of today are less thereminiscence of yesterdayand more a precursor of tomorrow.

Remarks byMary Ellen Warlow*

I approach this issue from longexperience as a practitioneron the side of theDepartmentof Justice indealing with internationalcriminal cases. It isoftenwork of great frustration,

1The Optional Protocol is a part of theModel Treaty on Mutual Assistance inCriminal Matters adopted

by theUN General Assembly inResolution 45/117 (Dec. 14, 1990).

*U.S. Department of Justice.

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538 ASLL Proceedings, 1996

but also of remarkable reward,when we are actually able to cooperate effectively, investi

gate cases and bring offenders to justice. So I have a pragmatic point of view, but share

many of the themes thatwe have already heard.

In lightof the overall theme of the conference, I will discuss the contrasts betweenmodes of cooperation at themultilateral and bilateral levels. There is a tendency among

prosecutors and police tofavor bilateral treaties,yet there is certainlyvalue in themultilat

eral approach. Each approach has its strengths,depending on our objectives and expecta

tions, including theobjective to act quickly.The extent towhich issues of crime and transnational crime are being addressed is

increasing: atmultilateral political fora, theUnited Nations, crime conferences andmeet

ingsof theG-7 and P-8,1 aswell as theSummit of theAmericas lastyear.The developmentof statementsproduced at such gatherings is importantfor two reasons. First, itemphasizesan awareness and broader

understandingof the

phenomenon. Second,itbolsters and

givesexpression topolitical will. Political will isan essential component inachieving multilateral

and bilateral cooperation, since theremust be will tomove forward, not just engage in

rhetoric.

Transnational crime problems are also being placed on the foreign policy agendas of

various governments, such as theUnited States. Transnational crime is increasingly seen

as amatter of national security interestand a key aspect of our foreign policy. This is a

striking development. When I firstbegan to practice in this area, we had great strengthand assistance from the State Department and a very able group of lawyerswith whom

we worked. Now we see greater expression of these issues indiplomatic circles and at

thehighest policy levels at intergovernmentalmeetings. These statementsand thesepolitical fora are very important,but they only establish a framework.What is needed are

concrete steps, including formal cooperative mechanisms like treaties.

Presently, there is a distinction between theobjectives and theexpectations regardingtreaties at themultilateral and bilateral levels. One thing thatyou can achieve through

multilateral treaties is a degree of universality and uniformity inpunishing particular typesof crime. The Vienna Convention and itspredecessing multilateral, antidrug conventionsare striking examples of that.The Vienna Convention is quite a striking instrument n its

thoroughness and thedegree of acceptance ithas in theworld community, particularly in

that it includes theregulation ofmoney laundering?a relatively recent crime. In themid1980s, many lawyers, governments and scholars on the subject had difficultydeciding

whether money launderingwas really a crime. However, in a very shortperiod we saw

in theVienna Convention an ability to define and reach a high level of agreement with

respect to punishing money laundering. This is a tremendous achievement and has set a

framework for countries touse inapproaching thisdifficultarea. Additionally, a collateral

effortto theVienna Convention?the Financial Action Task Force?has been very suc

cessful. Its framework,with standards for financial institutions, sone of themost thoroughtreatmentsof money laundering prevention and is a remarkable achievement that has

tremendouslycomplimentedtheframeworkof theVienna Convention. Overall, theVienna

Convention dealt with relatively discrete issues of crime. Drug trafficking s not all that

difficult to understand, and money laundering, even though a more recent phenomenon,seems tobe easily grasped. Although thedevelopment of theVienna Convention took a

tremendous amount of effort?and my compliments to all who worked on it?it is quitea good instrumentand, I think,an example of what can be achieved in a multilateral,

anticrime treaty.Another thingthat multilateral treaty an accomplish is to set a framework forcoopera

1The G-7 plus Russia.

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Saturday, March 30: Morning 539

tion. The Vienna Convention ismore advanced in that respect than, for example, some

of the antiterrorism treaties.They may have a provision that state parties are to afford

each other the highest degree of cooperation, but it is not particularly elaborated; the

Vienna Convention tries to establish a more extensive framework.With its baseline of cooperation, the Vienna Convention and its predecessors have

allowed us to extradite drug offenders even in the absence of a provision covering drugsina bilateral treaty. will tellyou thepractical meaning of this. In thishemisphere, about

half of the treatieswith Latin American countries date back to the turnof thecentury.Atthat time,drug trafficking as not recognized as a problem,much less a crime. By virtue

of thesemultilateral treaties,we were able, ineffect, to amend those bilateral instruments

and proceed with extradition. This is a tremendous practical advantage tous.

However, while theVienna Convention did set a very basic framework forcooperation,it reflects a lowest-common-denominator approach. That is thedifficultyofmultilateral

instrumentsat this time?a lack of common principles and procedures throughout the

world. There is great diversity incriminal justice systems and approaches to cooperation.For example, there is great diversity inhow countries view issues of sovereignty in thecontext of cooperation. Common law countries tend tobe much more flexible and do not

see, forexample, the takingof a deposition as an issue of sovereignty.Many other countriesbelieve the takingof depositions is a judicial function and closely protect theirability tocontrol them.As a result, theUnited States has a very different approach and limitedsuccess when we deal multilaterally.

Interestingly, thinkregional instrumentshave a certain promise, since there is a more

common legal systemat a regional level.This isone reason thatstateswithin theEuropeanCommunity have a longer traditionof international cooperation in criminal matters andease of extradition.Of course, theUnited Kingdom is a bit on the outside because of theirdifferentlegal system.But, overall, the regional frameworkhas had particular advantages.The United States is trying to do some of the same thingswithin our own hemispherewith theOrganization ofAmerican States (OAS). For example, we have negotiated a new

judicial assistance treaty.However, there is a great diversity of legal systems in this

hemisphere.One reason thatbilateral treaties are so appealing to thepractitioner dealing with the

urgency of cases of transnational organized crime is that in the bilateral context, thebroadest range of cooperation can be achieved. Basically, the evidentiary needs of the two

parties can be accommodated to thegreatest extent possible within the confines of their

legal systems. In fact, thereare timeswhen treaties serve as the catalyst for a change oflaw. In the context of an importantbilateral relationship, theremay be amodification ofthe laws of both countries.

Although theUnited States is currently able to achieve more in the bilateral context,thereare limitations toproceeding bilaterally. Since we do not have bilateral treatieswith

every country, thereare gaps. Crime is very adaptable andwhen theparticipantsmove toa new area, we have to play "catch-up" because we do not have treaty instruments in

place. Nonetheless, we have a very ambitious agenda in theUnited States fornegotiatingbilateral treaties,both formodernizing very old extradition treaties and fornegotiatingnew treaties in the area ofmutual assistance, orwhat theEuropeans call "judicial assistance." (In Europe theprosecutors and investigatingmagistrates are frequently judicialofficials. Therefore, the investigation of crime ismuch more commonly placed in the

judicial arena than inour system.)It is importanttounderstandwhy bilateral treatiesare so importantfor theUnited States.

In theworld community and thecommunity of legal systems, thecommon law system istheminority system, not the prevailing one. Since we are constantly confronted with

divergent legal practices, we need tobe able to confront them ina rational and predictable

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540 ASLL Proceedings, 1996

way. Treaties allow us todo that.An example of this isour rules of evidence and questionsof admissibility.We greatly regulate the typesand formsof evidence thatmay be admitted.

This is not the case in other countries, where the judge is the trierof law and fact and

can deal more easily with issues that, in our system, are dealt with uniformly throughrules of evidence. Additionally, our system requires that certain types of evidence be

excluded, so as not to influence the jury improperly.Accomodating importantaspects of

our system such as these, requires us to proceed very aggressively in thebilateral area

and we have had a lot of success.

In closing, Iwould note two critical problems thatwe face in cooperation. We need to

act pragmatically now, but also look to the future and examine how todeal more globallywith these problems. The first critical problem is the extradition of nationals. It is a

tremendous barrier tobringing people to justice. The alternative of trial in thecountry of

nationality has proven tobe extraordinarilydifficult. In some instances it is due to a lackofwill, but thatcertainly is not true in all cases. Relying on countries toprosecute their

own nationals is simplynot an effectivemechanism. Nations, including theUnited States,need to approach this set of issues with more flexibility and innovation. This critical

problem is reaching a crisis as people involved in transnational organized crimemove

around with speed and atwill.

The second critical problem deals with producing foreign evidence indomestic courts.

It is a heavy burden for the prosecution and defense to obtain domestically acceptableevidence. Foreign evidence frequentlydoes not look likedomestically obtained evidence.

Theproblem

is not

just

one ofjudges lacking flexibility

or

exposure

to

foreign systems,but it really gets down to fundamental principles of our legal system. For us, issues of

confrontation and cross-examination are fundamental, but they are not in other systems.As a result, theUnited States has a perpetual problem in some of themost traditionalcivil

law countrieswhere we wish to take a deposition in a criminal trialand have our defense

counsel be able to directly cross-examine the witness. One of our main objectives in

bilateral treaties is to set a framework inwhich we can accomplish this.Otherwise, our

judges, viewing ad hoc arrangements, are very suspect of such testimonywhere an opportu

nity for full U.S.-style cross-examination was not afforded and may view this as a violation

of a fundamental principle of our law.

Therefore, we look to create treaties thatallow theparticipation and presence ofU.S.authorities in taking evidence. For example, theUnited States had a treatywith Italy that

afforded us this greater degree of flexibility.When the Italians changed their systemfrom an inquisitorial to a nonadversarial one, they inheritedmany of the same issues of

confrontation, cross-examination and other procedures. Because of the treaty, we were

able tobring an entire Italian trial to theUnited States. The judges set up court, and the

prosecutors, defense counsel, about six of the defendants in custody and twentyof the

witnesses were present.Now, this took tremendouspreparation and expense. OurMarshall

Service tells us itmay have cost asmuch as $250,000. However, itwas amajor organized

crimecase

involving cocaine traffickingetween

Colombia,theUnited States and

Italy.(The Colombians would send cocaine toorganized crime figures inFlorida who would shipit toSicily; a huge amount of cocaine was transshipped thisway.) This was a tremendous

breakthrough.Most countries do not even permitprosecutors ordefense counsel todirectly

question a witness or defendant,much less let the court set up in another territory.There are two other issues that I thinkare critical. One is the need to look at certain

types of investigative techniques in dealing with organized crime, such as the use of

undercover agents andwiretaps. Inmany countries, there is a tendencynot topermit these

typesof investigative tools,particularly those thathave had a troublinghistorywith police,

police tactics and overreaching by the state.This is a very difficult issue without an easy

solution, since it is difficult topenetrate organized crime groupswithout these techniques.

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Saturday, March 30: Morning 541

The final issue deals with implementation of cooperative mechanisms. No matter what

typesof cooperative mechanisms are inplace, failure is inevitable ifthere isnot competenceand professionalism among police, judges, defense counsel and prosecutors.We can have

all the treaties and statements in theworld. But theywill fail ifpeople inother countriescannot effectively investigate, are not paid enough so that theycan view theirwork with

self-respect, do not have the capacity or educational level to function,or do not have a

feelingofprofessionalism. This isone of thereasons that theUnited States and international

organizations are tryingto cooperatively train,educate and instillprofessionalism in the

participants in the criminal justice systems of less-developed countries.

Discussion

Bruce Zagaris:* I have a comment aboutregional cooperation. One possibility?es

pecially forthewestern hemisphere, but one that lso could be emulated elsewhere?would

be to thinkabout a more proactive and comprehensive framework.One could create an

America's Committee onCrime Problems similar towhat was done inEurope in the 1950seven before theTreaty ofRome. Such amechanism could use theOAS or another institution and itwould have several functions. Itwould look at treaties; at all the things thatMs.

Warlow mentioned, such as professionalism and investigative techniques, and at criminal

justice.Within theU.S. government, itwould be at the level of an Assistant AttorneyGeneral. People would work each day on all of these problems so that theywouldn't justreact to one crime such as drug trafficking. s you know, in 1986, with theprogram of

Rio, theOAS started todo this,but onlywith drug trafficking. y final comment is thatinan era of free trade,where we are negotiating treaties such as theNorth American FreeTrade Agreement, we are also going tohave to look at each treatyhaving a broad criminalframework. InNAFTA, thereare criminal provisions, but only in two small parts.One iswith respect to intellectual property protection?and thatwas just a response to lobbyingby theU.S. Intellectual PropertyTrade Associations. The second has todo with customs,which ismore generic to the typeof treatythatNAFTA is.

Dale Furnish:** You've identified threemajor areas of access in transnational crime:

(1) thepeople involved?and you have pinpointed theextradition problems; (2) theprop

erty involved; and (3) discovery. I thinkwe have gotten a full discussion on the accessto people and evidence. I wonder if our two speakers could address the question of access

to property involved in crime. By property, Imean airplanes, vehicles, bank accounts,real estate and so on.

Ms. Warlow: We have had mixed success. We have had a lot of success in seizingmonies and proceeds, particularly inEurope. Criminals still thinktheycan put theirmoneyinSwitzerland, butwe get a tremendous amount of assistance from Switzerland and othercountries, such as theUnited Kingdom. There are problems with forfeiture,since thecommon law approach toforfeiture sdifferent rom that f thecivil law. This isa reasonwedo nothave the

approachand

proceduresof theCouncil of

EuropeConfiscation

Conventionimmediately available to us. I think theEuropeans have more of a common foundationforgoing afterproperty.However, it is an area where we have to do quite a bit more. Ithinkparticularly inLatin America, the laws are either not in place or not effectivelyimplemented. There is an outgrowth not only of theVienna Convention, butwithin the

OAS?a group called the Inter-American Drug Abuse Control Commission (CICAD),which works with countries in thehemisphere todevelop their internal law. It is a critical

*Cameron & Hornbostel, Washington, DC.

** School of Law, Arizona State University.