Trafficking in drugs, people and firearms are not new phenomena. For decades, these markets have generated billions of dollars for criminal networks around the world.
While international organised crime is still thriving in 2020, we’ve never been in a better position to fight it, says Professor Andreas Schloenhardt from UQ’s Law School.
This is largely thanks to the United Nations (UN) Convention against Transnational Organized Crime, which celebrates its 20th anniversary in November 2020.
In this Q&A, Professor Schloenhardt looks back at the history of organised crime both in Australia and globally, and what's being done to fight it.
Q. Why was the Convention developed?
Organised crime is a long-standing problem and a thriving industry.
While crimes easily cross international borders, law enforcement and criminal justice do not. This makes it easy for criminal networks to evade arrest and prosecution.
Stories of Al Capone, the famous Chicago mafioso; Pablo Escobar, the leader of the Medellin Cartel; and Nicolo Rizzuto, who controlled Montreal’s drug market, show another problem for criminal law.
Before the UN's Convention against Transnational Organized Crime, those who led criminal organisations, but did not physically commit crimes themselves, could not be held liable for the terrible crimes they directed.
In many countries, criminal organisations bribe police and extort other authorities, thus further fuelling their power and profits. Elsewhere, they simply eliminate people who get in their way.
In 1992, the world reeled when Italian Mafia assassinated two judges, Paolo Borsellino and Giovanni Falcone.
These men spent their lives bringing leading members of organised criminal gangs to justice.
The Convention was an attempt by the international community to address these issues and gain some level of control over organised crime.
On the 15th November 2000, after only two years of negotiations, the Convention was approved by the UN General Assembly. It was opened for signatures a month later at a high-level conference in Palermo, the heartland of the Sicilian Mafia.
Mugshot of famous gangster, Al Capone. Image Credit: Getty Images/Bettmann/Contributor
Q. Was organised crime a problem in Australia in the late 1990s?
Yes, it was (and still is).
The Italian and Russian mafia, Japanese Yakuza, Chinese Triads, and Outlaw Motorcycle Gangs are well established in Australia. Some groups have operated here since the 1950s.
During the 1980s and 90s, shootings in New South Wales and Victoria, the flow of criminal proceeds into banks and real estate, and the influx of illicit drugs were some of the many manifestations of this problem.
While organised crime had been rife in Australia for some time, politicians and legislators were slow to respond. Up until recently, Australian law and law enforcement were ill-equipped to prevent and combat this problem.
Before the Convention, most Australian criminal laws had changed very little since the late 1800s.
This meant gangsters could safely keep their profits, since law enforcement had few powers to freeze assets, confiscate proceeds of crime and investigate money laundering.
All these reasons motivated my interest in the development of the Convention. Between 1998 and 2000, I was lucky enough to participate in the committee of UN Member States meeting in Vienna to draft the text of the Convention and its protocols against smuggling of migrants, trafficking in firearms, and trafficking in persons.
Q. How does the Convention combat transnational organised crime?
The Convention has two main goals.
The first is to set standards that countries that are members of the UN (Member States) can follow to criminalise and combat organised crime under their own national laws.
The second is to enable international cooperation between these Member States, helping them unite to collaborate against crime in a myriad of ways.
As someone who taught criminal law for nearly 20 years, the Convention marks a real shift of the goalposts. It makes it possible to hold Al Capone-style offenders liable for the crimes they instigate, which is a major step forward.
The Convention has also been successful in creating those formal channels for cooperation between Member States in transnational crime cases. This has streamlined the transfer of criminals, evidence, witnesses, and even court proceedings between them. It has made it possible for Member States with no prior relationship to exchange information and seek assistance.
Put simply, the Convention has closed many legal and practical loopholes.
An important side effect of the Convention is that it draws attention to a global problem and encourages research and learning.
For more than 15 years, my research group at UQ has examined the evolution and operation of the Convention. We are part of an international research and teaching initiative on transnational organised crime, alongside the University of Vienna and the University of Zurich. Our goal is to bring together senior scholars, students and experts to work out how we can best use the law to fight this kind of crime.
Q. Has the Convention achieved its goals?
On the surface, no.
Twenty years on, organised crime thrives and prospers around the world. The global illicit drug market flourishes like never before. Even the current pandemic has not reduced that market, but merely shifted it to other substances and to online sales.
Some crimes that have emerged since the Convention came into force, such as cybercrime, were largely unheard of when the Convention was drafted.
But it was never expected that the Convention would put an end to organised crime.
With nearly 190 Signatories worldwide, the Convention has global reach. Around the world, there is now a common vocabulary and the same tools to criminalise people who previously escaped liability, to investigate and prosecute crimes across borders, and to better protect witnesses and victims. Combatting transnational organised crime has also become a top priority for the international community.
We have also seen the Convention used as a legal basis for hundreds of real-world cases.
Just recently, my team and I prepared a study for the United Office on Drugs and Crime - the ‘guardian’ of the Convention and its Protocols. We documented over 100 cases where countries in Europe, the Americas, the Middle East, Africa, and Australasia actively used the Convention as a legal basis for international cooperation. This is a remarkable achievement.
It includes many high-profile cases, such as the Odebrecht case, the world’s largest corruption scandal. The Convention has even been used against the infamous Pink Panther gang, which has around 800 members and is collectively responsible for robberies across 35 countries, totalling around 350 million Euros.
The UN headquarters in Vienna, Austria. Image Credit: Getty Images/altmodern
Q. Are all countries really doing what they promised?
“The large number of signatories to the Convention shows that countries around the world are committed to fighting organised crime.
Implementation and enforcement of relevant laws, however, is often slow, and many member countries fail to do what they signed up for.
Many do not have the human and financial resources to translate the Convention’s requirements into their national laws. Many also pay lip service to their international obligations and lack the political will for decisive action.
For this reason, in October 2020, the UN commenced a review process to assess whether Member States comply with the Convention’s requirements.
This is a slow and cumbersome process as many do not want to open their books to independent scrutiny. Nevertheless, the review helps assist Member States with implementation. It can even highlight loopholes and shortcomings of the Convention itself.
Q. How does Australia fare?
Australia supported the development of the Convention right from the start and signed up at the Palermo conference in December 2000.
It took, however, some 10 years for federal laws to be changed to include offences criminalising participation in organised criminal groups — the core offence under the Convention.
Complicating matters is the fact that, in Australia, criminal law falls primarily in the power of the states and territories.
In Australia, we have actually introduced several laws across our states and territories that divert quite significantly from the international model.
This includes some of the anti-organised crime laws, aimed largely at combatting outlaw motorcycle gangs. These laws were introduced in several states, but Queensland’s anti-biker laws have been particularly controversial. Many of these measures have since been repealed because they were grossly overstepping the mark.
The bottom line is that, both at home and abroad, we now have the tools to counter organised crime more effectively and to work with countries around the world much faster and more effectively.
The tools that the Convention provides are a bedrock and there is much to celebrate at this 20th anniversary.
My team and I will continue to analyse the scope and application of this treaty and hope that our work contributes to global efforts to stop organised crime. With some luck, we may have even more to celebrate when the Convention turns 25.
National flags at the UN headquarters in Vienna, Austria. Image Credit: Getty Images/Grigollo