The new criminal powers

Crime

2016-01-25 / www.clingendael.nl/






The spread of illicit links to politics across the world and how it can be tackled

The most recent manifestations of organized crime in countries as diverse as Ukraine, Mali or Guatemala reveal how the phenomenon has become a systemic part of governance: a constant resource for politicians and officials, which in certain circumstances can trigger mass public discontent and even political instability.
In order to understand the risks of this criminal influence, and how they might be addressed, the paper explores how illicit activity has become progressively more embedded in societies and in states, neutering efforts to coordinate international campaigns against corruption and crime. It traces the routes through which democratic politicians have sought to take advantage of crime; and vice versa, the ways in which criminal actors have captured parts of the state or targeted lucrative public sector transactions for financial gain. Through this active complicity on both sides, illicit activity has been able to merge with a fast-evolving international system of financial and legal transactions. The paper concludes by suggesting a number of strategic areas for future policy responses, including civil society engagement, firmer regulation of democratic politics, more context-ready judicial responses and broader reforms to the multilateral system.
Treating organized crime and corruption as a ‘cancer’ or a ‘virus’ has become shorthand in international policy circles, a diagnosis that is used to explain how countries as diverse as Mali, Ukraine or Mexico have fallen under the influence of criminal rackets that exercise control over certain state bodies, politicians, judges, police forces or territory. However, this paper will argue that an approach rooted in the notion of institutional capture by an external criminal force is – despite its persuasive rhetoric – gravely mistaken. For various reasons, illicit activity has become part of the living organism of many countries’ public and business affairs. It must be treated not as a foreign body, but as an integral part of governance and economic systems, and it is essential that policy responses are adapted to this reality.
Organized crime has undergone fundamental changes in size and shape over the past two to three decades. In its initial 20th-century form, organized crime was synonymous with an underworld of mafias, gangsters and racketeers. As a result, it was regarded in the West primarily as an issue for police and the courts. Since the end of the Cold War, criminal activity with its influence on state-building, human security and economic development has become a matter of acute concern in post-communist countries and, more generally, in a number of fragile and conflict-affected states. However, organized crime in its latest manifestations, for instance in Ukraine or Guatemala, appears to have taken yet another turn. In short, it has become a systemic part of governance: a constant resource for politicians and officials, which in certain circumstances can trigger mass public discontent and even political instability. Crime has moved from being a cause of prosecution to a pretext for revolution.
This paper seeks to explain how these changes in criminal patterns and effects have occurred, and what might be done to respond to them in a way that would emphasize the protection of democracy, good governance and human welfare. It establishes how crime has become central to the degradation of various ‘third wave’ democracies, particularly in countries in Central America, West Africa and the Sahel; how it has driven popular uprisings, in countries affected by the Arab Spring, as well as Ukraine and various states of Latin America; and how extremist movements, such as jihadist groups, regularly exploit public disgust with the corruption and venality of their local political systems.
In response, the paper identifies strategic areas for future interventions, whether by affected states, donor governments or multilateral institutions. It stresses the need for broader civil society engagement in dealing with criminal influence, while acknowledging the dangers that are posed by communities’ complicity with illicit activity, or the threat of violent criminal retribution. Stricter regulation of democratic political life is flagged as an essential part of efforts to protect democracy, although this also depends on the existence of local judicial systems that are able to act on cases of high-level criminal collusion and corruption. This judicial response in turn requires the designs of systems for investigation and prosecution that do not make impossibly burdensome demands on the limited resources and questionable political will of developing countries. So far, there has been a glaring absence of any efforts to design economical and realistic means of controlling high-level crime.
Lastly, the paper raises the possibility of recasting the way the multilateral system addresses organized crime, above all through root-and-branch reform of the main body dedicated to the issue – the United Nations Office on Drugs and Crime (UNODC). The essential spirit of such an enterprise would be to broaden participation, allow for honest criticism of the way states behave, and extend the range of issues that this body addresses in order to encompass the modern reality of crime: not a virus, but a very real part of many governments, societies and economies.

Conclusions


The paucity and weakness of international instruments of control and regulation, and the counter-productive nature of certain interventions against transnational trafficking, public policies have so far made little progress in reducing the power and wealth of transnational illicit networks. As a result, the regulations in place have failed to address the ways in which ever more complex and business-like criminal networks are making use of the global financial and political system.
The overarching focus of much international law enforcement on the content of criminal activity (e.g. the flow of drugs, arms, money or, increasingly, of clandestine migrants) has distracted policy-makers from what really needs to be at the centre of attention to arrest these flows, namely the form of crime: the structures and networks facilitating, deepening and extending criminal activity, above all through their links to business and to states. Tackling these networks will not be easy. It requires new and creative policies and, above all, political will. However, worldwide citizen calls for transparency provide some political momentum for reform, as do initiatives recently undertaken by the United Nations, the OECD and the G-20 leaders. Above all, new policy responses against organized crime should necessarily address multiple levels of illicit activity, and should have at their core a fine-grained understanding of the networks and transactions linking local, national and international state and non-state actors . Without proposing detailed policies, the paper discusses below a number of important strategic areas for future interventions.

 Civil society engagement.

It is crucial to recognize the vital role that local populations have played in both the facilitation of, and the fight against, corruption and organized crime. Major efforts to dislodge organized criminal activity linked to state actors have depended fundamentally on the mobilization of civil society, whether in Sicily from the 1980s or Guatemala in the past year. At the same time, it is the collusion of civil society that allows criminal practices to become embedded at the local level, often in contexts of extreme economic hardship. Knowing on which of these sides – complicit or antagonistic – the public stands, or how it is divided on the subject, requires detailed knowledge of local opinion, and understanding of how these perceptions of criminal activity might alter over time. Even when the conditions for any sort of public mobilization are not in place, organized civil society can still perform a number of functions that could serve to limit the reach of organized crime in business and the state. These include efforts to raise awareness of the developmental and democratic costs of crime and corruption through information campaigns; as ‘watchdogs’ of state actors and investigators of malpractice; and by supporting whistle-blowing through the creation of anonymous outlets.(97) In each case, the groups in question and donors must take great care to avoid the risk of any violent backlash or legal persecution of the organizations involved.
 

Regulation of political financing.

The increasing influence of private money in democratic politics provides multiple opportunities for corruption and criminal infiltration. In response, reforms aimed at better oversight of political financing are an essential step, especially in many ‘third wave’ democracies. For instance, measures could include policies that ban certain types of anonymous or corporate contributions, ensure equal media access, regulate private funding, document and publish party and candidate finance information, provide a better balance between private and public funding, and implement spending limits for political campaigns.(98) Strict selection requirements for party candidates are also required to prevent as far as possible the entry of criminal actors into government office.(99) At the same time, it is widely acknowledged that the problem of control over private and illicit finance in many democracies can be traced to a lack of enforcement of existing rules – especially since enforcement will often depend on judges, prosecutors or other authorities that are heavily influenced by the elected politicians of the day. Establishing more autonomous bodies of electoral and political control is far from simple, although isolated pockets of progress can be found even in heavily politicized state structures. For instance, making full use of a team of exceptional young prosecutors, and working with them to trace the networked connections between state officials, elected politicians, business figures and criminals, has been the basis of the CICIG’s most important indictments in Guatemala.
Likewise, periods of transition, and especially post-conflict periods, provide windows of opportunity for electoral reform and political financing. For instance, in post-2011 Tunisia a new electoral monitoring body was established to ensure a more inclusive electoral process. According to one observer, “this step was indispensable for building people’s confidence in the electoral process after decades of electoral manipulation and fraud”.(100) Similar efforts to regulate political finance have been under way in Ukraine since the country’s revolution, including a new law that will introduce state funding of political parties from the start of 2016 so as to prevent capture of these organizations by the country’s business oligarchy.

 Strengthening the judiciary.

Without a strong and stable judicial system, efforts to target organized crime, as well as any new initiatives in the area of political finance, are likely to encounter enormous obstacles. On the one side, judicial offensives against high-level crime and corruption have been vital to the process of dismantling illicit networks in countries such as Italy and Colombia. On the other, there is little doubt that the problem of the judiciary is at the heart of the difficulty in dealing with crime and corruption in many democracies: numerous surveys show that the judiciary is often the least trusted institution in developing countries.(101)
In highly corrupt states, the judiciary often lacks political independence, as many judges have ties to corrupt politicians, are intimidated by them, or depend on them for their future career advancement. As a first step, donors should be fully aware of the likelihood of such connections, and support targeted efforts to strengthen judicial independence. These could include bolstering the independent investigative capacity of the prosecution service, or supporting closer monitoring of judges’ personal fortunes and the transparency of their rulings.
In many cases of developing countries, however, the possibilities for strengthening the judicial system as a whole, and reinforcing its independence, depend on the availability over the long term of scarce domestic resources. Experts in tackling organized crime have by and large failed so far to come up with a series of policies and instruments that could track and prosecute financial flows, illicit network connections and stolen assets in an economical and efficient way. Indeed, recent evidence suggests that anti-money laundering regulation, which are designed largely for the convenience of the developed West and its sophisticated financial services, starve poor countries of credit and access to money transfer facilities.(102) In short, the challenge is now to come up with a feasible set of legal and institutional models to deal with illicit networks that will not depend on constant donor largesse, or rely on unrealistic expectations of local state budgets.

 Increase financial transparency.

International agreements to increase the transparency of the financial system, and facilitate the detection, investigation and prosecution of transnational corruption and of money laundering, and the recovery of stolen assets should be fully respected, in practice as well as in theory. This means that the implementation of targets under Goal 16 in the post-2015 UN Development Agenda,103 aimed at reducing illicit financial flows, corruption and bribery, as well as combating organized crime, must be monitored closely, as should the G-20 commitment to bring about a halt to the use of anonymous shell companies and trusts by demanding transparent registers of beneficial ownership. Existing state commitments to anti-corruption agreements, such as FATF and UNCAC, must also be closely monitored, and should be subject to some form of sanction when it is clear that they are not respected. That said, these sanctions should vary according to whether or not the state in question is able to pay, and should always take into account the full range of actors and bodies involved in any illicit transactions, including financial and legal facilitators in developed countries.
 

Rethink the multilateral approach to crime.

The main international body that currently focuses on efforts to combat organized crime is the United Nations Office on Drugs and Crime (UNODC), whose work focuses on initiatives to combat corruption and transnational organized crime, especially international criminal flows involving narcotics, endangered wildlife and arms, as well as human trafficking and migrant smuggling. However, an emphasis on criminal form rather than content, with the aim of diagnosing and addressing the international structures and illicit networks that facilitate crime and corruption, requires a radical new approach. In particular, the multilateral system needs a body devoted to crime and corruption that is stronger and more legitimate than the UNODC at present, but which addresses the issues from a far more interdisciplinary basis and with a much greater diversity of participants and interlocutors.
Serious thought should therefore be given to the reform of this UN body. To ensure effectiveness and reach, its member base would feature all nation-states as it does now, but with a greater emphasis on the voice of countries from the Global South, which tend to be most affected by crime. The body would be devoted exclusively to crime and corrupt networks, thereby forsaking its controversial and, for certain states, legitimacy-sapping association with the failed ‘war on drugs’. Its novelty, however, would be the inclusion of a core civil society involvement. The ideal, in fact, would be to establish a tri-partite body, similar to that of the International Labour Organization (ILO), where the governments of member states, representatives of their judiciaries and civil society actors could come together at a UN level to debate and elaborate new policies on transnational crime that correspond to the real possibilities for action and prosecution in each country. This sort of body would not be captured exclusively by state actors, and would in fact have a margin in which to be openly critical of states’ willingness to act on embedded organized crime. Moreover, it could devote far more attention and energy to dealing with the socio-economic factors that are conducive to the spread of criminal activities, and which tend to be neglected by an exclusively law-enforcement approach.
Most importantly, this reformed, and potentially far more legitimate, UN agency should be able to back its agreements with sanctions, or even criminal prosecution, when they are violated. For example, it should push for international criminal jurisdiction for serious international crimes that are not classified as a violation of human rights, but which have major connotations for governance and stability. It is by now obvious that the signing of agreements alone will not stamp out the international facilitation of organized crime and corruption. While the establishment of a legal regime placing organized crime under universal jurisdiction could not be done overnight, for Kemp and Shaw “the very existence of a criminal court that could deal with cases involving organized crime would shatter the sense of impunity of corrupt leaders who are complicit in illegal activity.”104


97 For instance, in Mexico such an initiative, called ‘MéxicoLeaks’, was founded in 2015 with donor support. See: https://mexicoleaks.mx/. For more on possibilities for protection of whistle-blowers, see G20 Anti-Corruption Action Plan, ‘Protection of Whistleblowers. Study on Whistleblower Protection Frameworks, Compendium of Best Practices, and Guiding Principles for Legislation’, Cannes, 2011.
98 International IDEA, Money in Politics, Policy Brief, 2015. Also see OECD, op. cit., 2014(b).
99 Also see Uribe Burcher, C., ‘Conclusions and recommendations’, in Briscoe, I. et al., op. cit., 2014
100 Boubakri, A., ‘Inclusiveness Policies in the Transitional Elections in Tunisia,’ in Improving Electoral Practices: Case Studies and Practical Approaches, International IDEA, 2015, pp 141-161. 
101 See Pew Research Center, op. cit., 2014; Latin American Public Opinion Project (LAPOP), op. cit., pp 194-198. For Ukraine, see: Razumkov Centre, ‘Public Opinion on the Results of 2014’, in Ukraine 2014-2015: Overcoming Challenges, 20 February 2015, http://www.razumkov.org.ua/eng/news.php?news_id=586 (accessed December 2015).
102 Center for Global Development, Unintended Consequences of Anti-Money Laundering Policies for Poor Countries, Washington DC, 2015.
103 Goal 16 is to “promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, and inclusive institutions at all levels”. Of particular interest are goals 16.4 (“by 2013 significantly reduce illicit financial and arms flows, strengthen recovery and return of stolen assets, and combat all forms of organized crime”) and 16.5 (“substantially reduce corruption and bribery in all its forms”).
104 See Kemp, W. and Shaw, M., op. cit., 2014, pp 25-29.

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