Transnational Crimes in the Americas: Law, Policy and Institutions

By Marshall B. Lloyd

’Transnational Crimes in the Americas’ emphasizes the importance of working within public, international organizations to combat transnational crimes. It documents the role of international institutions within the Americas to form a united effort against the proliferation of illicit drugs, human trafficking, weapons trafficking, money laundering and terrorism. Selected nation-states and regions in the Western Hemisphere are highlighted to illustrate how individual countries have tried a domestic policy of interdiction and failed to curtail transnational organized crime. Whether a nation is struggling to maintain public confidence in its institutions, or has substantial resources to combat crime beyond its jurisdiction, transnational crimes present a formidable challenge in the region.

• Language: English
• Publisher: Anthem Press
• Release date: Oct 30, 2018
• ISBN: 9781783088430

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Transnational Crimes in the Americas

Transnational Crimes in the Americas

Law, Policy and Institutions

Marshall B. Lloyd

Anthem Press

An imprint of Wimbledon Publishing Company

www.anthempress.com

This edition first published in UK and USA 2018

by ANTHEM PRESS

75–76 Blackfriars Road, London SE1 8HA, UK

or PO Box 9779, London SW19 7ZG, UK

and

244 Madison Ave #116, New York, NY 10016, USA

© Marshall B. Lloyd 2018

The author asserts the moral right to be identified as the author of this work.

All rights reserved. Without limiting the rights under copyright reserved above,

no part of this publication may be reproduced, stored or introduced into

a retrieval system, or transmitted, in any form or by any means

(electronic, mechanical, photocopying, recording or otherwise),

without the prior written permission of both the copyright

owner and the above publisher of this book.

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library.

ISBN-13: 978-1-78308-841-6 (Hbk)

ISBN-10: 1-78308-841-9 (Hbk)

CONTENTS

List of Illustrations

Acknowledgments

Chapter OneFormation of an Institutional Response to Combat Transnational Crimes

A Introduction

B Assessing the Global Mission of the UNODC

C Criticism of the UNODC

D Criminal Liability: Prosecution of Transnational Crimes

E Formation of the International Criminal Court

F Regional Organizations: The Americas and Transnational Crime

Chapter TwoRegional Organizations in the Americas

A Coordinating a Global Response

B Regional Organizations

C Organizations in the Americas

D Subregional Organizations in the Americas

E Unifying the Americas

Chapter ThreeTransnational Crimes in the Americas: Regional and Subregional Responses

A Globalization of Crime

B Overview of Transnational Crimes

1 Drug Trafficking in the Americas

2 Terrorism in the Americas

3 Money Laundering

4 Weapons Trafficking

5 Human Trafficking

C The Challenge from Transnational Organized Crime

Chapter FourCombating Transnational Crimes in the Americas

A The Threat of Transnational Organized Crime

B Colombia

C Peru

D Bolivia

E Central America

F Caribbean Region

G Mexico

H Canada

I United States

J Acknowledging the Threats from Transnational Criminal Organizations

Chapter FiveCooperating against Transnational Crimes: A Framework for Sustainable, Alternative Development in the Americas

A Beyond an Interdiction Response to Transnational Crimes

B Sustainability: A Framework to Combat Transnational Crimes

C Alternative Development and Transnational Crimes

D Sustainable, Alternative Development in the Western Hemisphere

E A Subregional Response to Transnational Crimes

F Sustainability: An Institutional Response

Chapter SixStrengthening the Inter-American System: Establishing an Enforcement Response to Transnational Crimes

A Lacking a Coherent Response to Transnational Crimes

B Inadequacy of the Status Quo

C Establishing a Regional Criminal Court

D The Inter-American Court of Criminal Justice

1 Jurisdictional and Substantive Issues

2 Enforcement, Power and Capacity of an Inter-American Criminal Court

3 The Long Arm of an Inter-American Criminal Court: Jurisprudence, Partnerships and Due Process of Law

E Strengthening the Institutional Response

Chapter SevenSupport for a Regional Response to Transnational Crimes

A Taking Action against Transnational Crimes

B Influence of the OAS in the Western Hemisphere

C Sustainable, Alternative Development: Advantages in the Western Hemisphere

D Broadening the Enforcement Powers of the OAS

E OAS Cooperation with Subregional Organizations

F Failure to Combat Transnational Crimes

1 Bilateral Initiatives

2 Unilateral Initiatives

G Summary

Chapter EightConclusion

A International Action against Transnational Crimes

B A Regional Response to Transnational Crimes

C Hemispheric Commitment to Combating Transnational Crimes

Appendix A

Appendix B

Appendix C

Acronyms and Abbreviations

Bibliography

Index

ILLUSTRATIONS

Figures

2.1Inter-American Drug Abuse Control Commission

2.2Inter-American Committee against Terrorism

2.3Organization of American States: Institutional response to transnational crimes in the Americas

5.1Sustainability alternative development: An institutional response in the Western Hemisphere

8.1Transnational crimes: Dynamics of public policy formation in the inter-American system

8.2Organization of American States: Institutional framework in response to transnational crimes

Chart

2.1Subregional Organizations Combating Transnational Crimes in the Americas

Table

8.1US Department of Homeland Security: Custom and border protection of facts and figures on a typical day in fiscal years 2008–2012

ACKNOWLEDGMENTS

First, I would like to thank my adviser Professor Dr. iur. Roza Pati for her contributions to my research and scholarly pursuit. Professor Pati, executive director of the LLM, JSD program in intercultural human rights, provided invaluable insight in transnational crimes and the nexus with international law. Without her guidance and persistent help, this book would not have been possible.

I would also like to thank Professor Dr. iur. Siegfried Wiessner, director of the graduate program in intercultural human rights, who initially interviewed and granted me admission to the program. Professor Wiessner was gracious to allow me the flexibility to complete the residency requirements. I will never forget the personal assistance you have provided and the fact that I was the first outside candidate accepted into the program at St. Thomas University School of Law.

During the research and analysis of this project, I met several times with Joseph Gay, assistant US attorney, chief of the appellate section, and Walter Bud Paulissen, assistant US attorney, Criminal Division, Western District of Texas, US Department of Justice. They contributed suggestions, ideas and clarification on jurisdictional issues that are not readily apparent to the average scholarly inquiry. I am indebted to their generous efforts in assisting and encouraging me to complete the book.

In addition, a thank you to Professor Robert L. Summers at St. Mary’s University School of Law in San Antonio, Texas. Professor Summers introduced me to the various facets of international law and inspired me to grasp the underlying structures of international institutions. His personal interest in my success is invaluable as a mentor, friend and a Brother in Christ.

In appreciation for understanding my long nights at the computer, I thank my children, Laura and Robert. The time I spent away from home and devoted to researching the book was a sacrifice for them. This book would not have been possible without the support and encouragement of my family.

Finally, I would like to thank my parents, Maggie Ruth Lloyd and Ray M. Lloyd, who sacrificed their interest for my success as an academician. My parents could not read at an adult level, but they had the wisdom to ask a neighbor, Douglas Williams, an African American, to point me in a direction to succeed. Douglas moved into the neighborhood during the late 1960s, an era of unrest and social conflict. Despite the obvious differences, Douglas devoted his efforts to ensure I had someone in my life who understood the importance of education. Douglas did everything possible except adopt me as a child and has had my utmost respect as a friend for over 50 years.

Chapter One

FORMATION OF AN INSTITUTIONAL RESPONSE TO COMBAT TRANSNATIONAL CRIMES

A. Introduction

Transnational organized crime (TOC) represents a serious threat to the sovereignty of nation-states as criminal groups extend their influence within public institutions and diversify their enterprises.¹ Organized criminal activities include, but are not limited to, illicit drugs, trafficking in weapons, money laundering and human trafficking. Globalization of markets presents an opportunity to establish networks that extend beyond traditional hierarchical structures of criminal groups.² Contributing to the growth of TOC is the globalization of commerce that benefits from an easing of trade restrictions,³ technology in the form of communication systems and financial institutions that can transfer billions from criminal networks.⁴ It is not surprising that activities of TOC networks threaten the stability of international political and economic systems. Transnational criminal organizations are increasingly entrenched in the operations of foreign governments and the international financial system, thereby weakening democratic institutions, degrading the rule of law, and undermining economic markets. These organizations facilitate and aggravate violent civil conflicts and increasingly facilitate activities of other dangerous persons.⁵

In some cases, countries entering into trade agreements neglect to address criminal organizations despite subsequent developments indicating that criminal networks take advantage of integrating markets and financial institutions.⁶ Acting alone, some countries attempt to seize the assets of criminal networks,⁷ while urging others to adopt similar measures against criminal organizations that mov[e]‌ vast sums of ill-gotten gains through the international financial system with absolute impunity.⁸ Moreover, threats to impose sanctions on other nations identified as facilitators in laundering illicit money for criminal cartels can have a countereffect among countries that are needed as partners to combat security threats posed by criminal organizations.⁹ Sanctions hinder nations from effectively battling these supranational criminal cartels that are targeting those nations that are most vulnerable.¹⁰ The effectiveness of any nation-state acting unilaterally to combat transnational criminal organizations may be questionable in light of the scale and extent of international organized criminal activities [that are] complex, global and threatening."¹¹ As a result, globalization empowers criminal organizations to act with impunity, conducting business beyond the reach of individual nations while penetrating multiple countries with their criminal activities.¹²

The apparent limitations of individual nations compel international organizations to assume an expansive role in combating criminal organizations. In 1997, the United Nations combined existing agencies to establish the UN Office on Drugs and Crime (UNODC).¹³ Recognizing the nexus among interrelated issues associated with transnational crimes,¹⁴ the reorganization of programs and entities represents an effort by the secretary-general’s office to strengthen the United Nations’ ability to enhance international cooperation among industrialized and developing nations.¹⁵ The UNODC has the responsibility for coordinating and providing effective leadership with respect to illicit drugs, international crime and terrorism. According to the UNODC, the three pillars of the agency are

research and analytical work to increase knowledge and understanding of drugs and crime issues and expand the evidence base for policy and operational decisions; Normative work to assist States in the ratification and implementation of the relevant international treaties, the development of domestic legislation on drugs, crime and terrorism, and the provision of secretariat and substantive services to the treaty-based and governing bodies; [and] Field-based technical cooperation projects to enhance the capacity of Member States to counteract illicit drugs, crime and terrorism.¹⁶

The work performed by the UNODC is an institutional response coordinating an array of services consistent with needs identified by member states to combat international crime.¹⁷ Under the direction of the Office of the Executive Director (OED), the UNODC responds to requests from member states to assist with expertise regarding various international crime issues. Services provided by UNODC agencies are based on strategies supported by a framework of treaties addressing drug trafficking,¹⁸ corruption,¹⁹ organized crime,²⁰ trafficking in weapons²¹ and terrorism.²² Operating within a network of field units, project and liaison offices, UNODC officials work with representatives from host nations and nongovernmental organizations (NGOs).²³ UNODC accomplishments are outlined in annual reports illustrating the demand for services and continuous threats that international crime presents to all nation-states.²⁴

B. Assessing the Global Mission of the UNODC

The fundamental mission of the UNODC is to assist UN members with treaty obligations.²⁵ A balancing act takes place as nations coordinate compliance with specific treaties in light of domestic law. Case in point, the Transnational Crime Convention creates a distinction from domestic crimes, specifying that an offense is transnational in nature if

(a) it is committed in more than one State;

(b) it is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State;

(c) it is committed in one State but involves an organized criminal group that engages in criminal activities in more than one State; or

(d) it is committed in one State but has substantial effects in another State. ²⁶

Parties balance their treaty obligations consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States.²⁷ Signatories are required to adopt legislation that criminalizes acts committed intentionally that involve

(a) either or both of the following as criminal offences distinct from those involving the attempt or completion of the criminal activity:

(i) agreeing with one or more other persons to commit a serious crime for a purpose relating directly or indirectly to the obtaining of a financial or other material benefit and, where required by domestic law, involving an act undertaken by one of the participants in furtherance of the agreement or involving an organized criminal group;

(ii) conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in

a. criminal activities of the organized criminal group;

b. other activities of the organized criminal group in the knowledge that his or her participation will contribute to the achievement of the above-described criminal aim;

(b) organizing, directing, aiding, abetting, facilitating or counseling the commission of serious crime involving an organized criminal group. ²⁸

Thus, a chipping away at sovereignty occurs as nations adopt legislation to implement obligations under the Transnational Crime Convention.²⁹

The UNODC’s primary task is coordinating services in response to the globalization of illicit drug trafficking. Drug trafficking is the nucleus of transnational crimes,³⁰ which led to establishing the UNODC to enhance the UN’s capacity to address the interrelated issues of drug control and transnational crime.³¹ The UNODC provides, among other services, legal assistance to parties adopting domestic criminal statutes, agreements pertaining to mutual legal assistance involving extradition, cooperation among law enforcement officials and technical assistance that includes training of personnel.³² Moreover, technical services are available to UN members to achieve significant drug control efforts as well as combat other transnational crimes.³³ Services include the curtailing of money laundering, the monitoring of import/export of control substances, development of an electronic infrastructure and other means of assistance to achieve compliance with UN drug control conventions.³⁴

Subsidiaries working in conjunction with the UNODC include two commissions charged with policy making and implementation of UN crime prevention programs. The Commission on Narcotic Drugs (CND), established in 1946,³⁵ is the central policy-making entity of the UN. As the principal UN policy-making entity on drug control issues,³⁶ the CND mission includes administering the Fund of the United Nations International Drug Control Programme (UNDCP).³⁷ Moreover, the CND is charged with ensuring compliance with the international drug control treaties in drug-related matters as the governing body of the UNDCP.³⁸ The Commission on Crime Prevention and Criminal Justice (CCPCJ), created at the direction of the UN General Assembly,³⁹ has a mandate that includes national and transnational crimes.⁴⁰ CCPCJ reports indicate a broad agenda on transnational crime with respect to drug trafficking, terrorism, money laundering, organized crime and corruption.⁴¹ Finally, the International Narcotics Control Board (INCB) functions as a monitoring agency regarding the manufacturing of trade in and use of licit and illicit drugs.⁴² Established in 1968,⁴³ the INCB discharges its duties under three international drug conventions.⁴⁴ The INCB primary mission is implementation of the conventions by focusing on demand reduction methods that address all activities aimed at reducing demand for drugs and includes primary, secondary and tertiary prevention.⁴⁵ However, the INCB annual reports infer drug interdiction programs as the primary means of achieving demand reduction.⁴⁶ The on-site visits to ensure compliance with treaty obligations are designed to evaluate control and reduction efforts measured in seizures of illicit drugs.⁴⁷

C. Criticism of the UNODC

Periodically, the UNODC is criticized by external organizations regarding its global mission grounded on interdiction of illicit drugs. The Transnational Institute questions the lack of focus on harm reduction by UNODC officials. Specifically, harm reduction practices involving needle exchange programs and drug treatment receive scant attention within the UNODC.⁴⁸ The International Federation of Red Cross and Red Crescent Societies (IFRCRCS) takes issue with UNDOC’s lack of affirmative endorsement of harm reduction strategies. IFRCRCS programs aimed at reducing the spread of the human immunodeficiency virus (HIV) support needle exchange programs, noting that

forcing people who use drugs further underground and into situations where transmission of HIV/AIDS is more likely, and denying them access to life-saving treatment and prevention services is creating a public health disaster. This happens even though the evidence from scientific and medical research on best practices and cost benefit analyses is overwhelmingly in [favor] of harm reduction programming. This includes needle exchange, drug substitution treatment and condom distribution as part of the response to HIV/AIDS. The message is clear. It is time to be guided by the light of science, not by the darkness of ignorance and fear.⁴⁹

The Drug Policy Alliance takes a harsher view of UN drug control policy that criminalizes all nonmedical use, manufacture and sale of drugs. Projects supported by the organization emphasize the availability of treatment and demand reduction as a preferred policy rather than criminal enforcement.⁵⁰ Human Rights Watch and the International Harm Reduction Association (IHRA) also question the punitive practices that criminalize possession of drugs for personal consumption.⁵¹ Enforcement practices deter people from seeking HIV services and drug dependence treatment, and disproportionately penalize possession of illicit drugs.⁵²

Critics of the UNODC’s emphasis on supply reduction policies exist within the United Nations. Catherine Hankins, associate director of the UN Joint Programme on HIV/AIDS (UNAIDS), has made clear that the United Nations fully endorses the fundamental principles of harm reduction: reaching out to injecting drug users, providing sterile injecting equipment and disinfectant materials, and providing substitution treatment.⁵³ The World Health Organization (WHO) also advocates harm reduction initiatives targeting people living with HIV/AIDS in developing and middle-income countries.⁵⁴ Commissioning a review of more than two hundred articles led the WHO to conclude that the availability of sterile equipment reduces HIV transmission with minimum evidence of unintended consequences such as increasing the use of illicit drugs, while punitive measures create a barrier to HIV drug users.⁵⁵ The UN High Commissioner for Human Rights (UNCHR) notes that states have obligations that not only include efforts to reduce illicit drug supplies but also ensure that the public has access to drugs for therapeutic purposes.⁵⁶ Mindful of the challenges of conforming to international law, the UNCHR calls attention to human rights obligations in recognition that too often, drug users suffer discrimination, are forced to accept treatment, marginalized and often harmed by approaches which over-emphasize criminalization and punishment while under-emphasizing harm reduction and respect for human rights.⁵⁷ The comments are consistent with the UN General Assembly’s recognition after the inception of the UNODC that states must provide the necessary resources for treatment and rehabilitation and to enable social reintegration . . . [for those] who have become drug abusers and to fight against all aspects of the world drug problem as they conform to obligations under international law.⁵⁸

In response to criticism, the UNDOC gradually expanded its mission to include harm reduction policies. For example, in partnership with the WHO, the UNODC now incorporates prevention, intervention and drug treatment services within its mission to focus on programs at the community level.⁵⁹ Other endeavors by the UNODC appear to accept harm reduction policies as indicated by the establishment of 30 HIV/AIDS field offices in support of local key stakeholders that include policy makers, decision makers, community leaders and faith-based organizations.⁶⁰ Moreover, the UN General Assembly has prodded the UNODC to embrace alternative development as part of its mission. At the Special Session on the World Drug Problem in 1998, the UN General Assembly defined alternative development as

a process to prevent and eliminate the illicit cultivation of plants containing narcotic drugs and psychotropic substances through specifically designed rural development measures in the context of sustained national economic growth and sustainable development efforts in countries taking action against drugs, recognizing the particular socio-cultural characteristics of the target communities and groups, within the framework of a comprehensive and permanent solution to the problem of illicit drugs.⁶¹

During the Special Session, the General Assembly adopted a 10-year plan in recognition that alternative development embraces a balanced and comprehensive drug control strategy, which includes law enforcement and eradication efforts.⁶² Subsequently, UNODC reported that alternative development . . . clearly help[s]‌ . . . to reduce and contain the spread of illicit drug crops.⁶³ At the end of a 10-year period, a CND follow-up report recognized alternative development programs as a viable part of addressing the world drug problem.⁶⁴ As a result, the CND acknowledges alternative programs as an important component in economic development in developing nations.⁶⁵ At its March 2010 meeting, the CND recommended further analysis of best practices associated with alternative development strategies in support of the General Assembly’s 1998 10-year plan.⁶⁶

D. Criminal Liability: Prosecution of Transnational Crimes

Despite the success or failures of entities seeking compliance among stakeholders, prosecution of criminal enterprises presents institutional challenges for international organizations. Recognition that crimes transcend traditional state sovereignty can be traced to the Allies during World War II, having met in London’s St. James Palace in 1942 to consider prosecuting Nazi criminals.⁶⁷ As a result, the UN established a War Crimes Commission, which led to creating the Nuremberg International Military Tribunal to prosecute 24 Nazis for Crimes against Peace, Humanity, War Crimes, and Conspiracy to commit any of these crimes.⁶⁸ In Tokyo, US General Douglas MacArthur oversaw the International Military Tribunal for the Far East to prosecute crimes similar to the Nuremberg Trials.⁶⁹ Despite criticism of fairness and procedural rules,⁷⁰ time and the unfulfilled quest for international criminal justice have put a favorable gloss over infirmities and flaws of these proceedings.⁷¹ The experience established a foundation for prosecution of violations of the Geneva Conventions⁷² and international humanitarian law. As a result, the military tribunals contributed to the contemporary development of human rights jurisprudence.⁷³

Decades later, the UN Security Council created other ad hoc courts and tribunals to address serious human rights violations. The International Criminal Tribunal for the former Yugoslavia (ICTY), the first tribunal authorized to prosecute coercive practices by paramilitary groups in Yugoslavia, focused the public’s attention on acts of ethnic cleansing.⁷⁴ Members of the Security Council called for the establishment of an international tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the Former Yugoslavia since 1991.⁷⁵ Resolution 808 directed the UN secretary-general to present the Security Council with a report on all aspects of this matter, including specific proposals.⁷⁶ Subsequently, acting under Chapter VII in the UN Charter to prosecute violations of international humanitarian law, the Security Council adopted Resolution 827 creating the ICTY and called on all states to cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal.⁷⁷ Moreover, states were required to take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute⁷⁸ of the International Tribunal.⁷⁹

Acting under Chapter VII of the United Nations Charter, the Security Council established the International Criminal Tribunal for Rwanda (ICTR).⁸⁰ In contribution to Rwanda’s national reconciliation and restoration of peace, the ICTR is authorized to prosecute crimes for genocide, crimes against humanity and violations of Article 3 common to the Geneva Conventions, and of Additional Protocol II.⁸¹ A major contribution of the ICTR with respect to violations of humanitarian law is the prosecution of gender-based violence.⁸² The establishment of the ICTR took place amid the backdrop of international attention to the victimization of women during armed conflicts.⁸³ What is characterized by some as a watershed decision linking rape to genocide,⁸⁴ the case of Prosecutor v. Akayesu⁸⁵ is the first conviction by a tribunal recognizing that rape could constitute genocide as well as a crime against humanity.⁸⁶ Moreover, Rwanda’s former minister for women’s affairs is the first case of a woman charged with rape as a crime against humanity by an international tribunal.⁸⁷ Thus, ICTR prosecutions have made clear that gender-based violence during situations of armed conflict is likely to lead to charges under existing humanitarian law.⁸⁸

Other tribunals and courts have been established with specific missions and timetables to address enforcement of human rights violations. The Special Court for Sierra Leone (SCSL) was created by agreement between the government of Sierra Leone and the United Nations.⁸⁹ Empowered to prosecute crimes against humanity, war crimes and other serious violations of international humanitarian law, the SCSL also retains domestic jurisdiction over crimes under relevant Sierra Leonean law.⁹⁰ Critics note that, unlike previous tribunals, the SCSL lacks extraterritorial jurisdiction to demand extradition of a defendant or evidence outside Sierra Leone.⁹¹ At the request of the government of Cambodia, the United Nations took part in establishing a tribunal to prosecute human rights violations of Cambodian and international law by the Khmer Rouge.⁹² Establishment of the Extraordinary Chambers in the Courts of Cambodia, which met with opposition within the United Nations, became operational in June 2007 after the adoption of internal rules of procedure.⁹³ The United Nations was more receptive to the formation of the Special Tribunal for Lebanon (STL)⁹⁴ in response to the attack of February 14, 2005, resulting in the death of former prime minister Rafiq Hariri. The Security Council, in cooperation with the Lebanese government, established the STL to prosecute persons alleged to have assassinated Prime Minister Hariri and committed other attacks that occurred in Lebanon between 1 October 2004 and 12 December 2005, or any later date decided by the Parties and with the consent of the U.N. Security Council.⁹⁵ A distinction from previous tribunals, the STL [is] . . . the first international body to prosecute the crime of ‘terrorism.’ It is also the first tribunal established to adjudicate allegations of a crime targeted at a specific person.⁹⁶

E. Formation of the International Criminal Court

Recent support for global enforcement in international criminal matters became evident in 1990 when the UN General Assembly directed the ILC to draft a proposal establishing the ICC.⁹⁷ A final ILC draft included crimes of genocide, aggression, war crimes and crimes against humanity.⁹⁸ Listed in the annex of the ILC draft is the Vienna Convention, indicating a desire to grant the Court jurisdiction over drug trafficking.⁹⁹ The General Assembly’s Preparatory Committee on the Establishment of an International Criminal Court eventually excluded the inclusion of drug-related crimes. A subsequent review by the working group of the Preparatory Committee entertained the possibility of including illicit drug trafficking-related offenses without prejudice to a final decision on their inclusion in the statute.¹⁰⁰ In April 1998, the Preparatory Committee prepared a Draft Statute on the Establishment of an International Criminal Court,¹⁰¹ submitting its work two months later at the Rome Conference.¹⁰² The final vote at the end of the conference resulted in 120 nations supporting the Rome Statute, with 21 states abstaining and only 7 states voting against the treaty.¹⁰³

As a nonparty to the Roman Statute, the United States actively participated in the drafting of the treaty. Appearing before the Subcommittee on International Operations of the Senate Committee on Foreign Relations, the US ambassador-at-large for war crimes issues, David J. Scheffer, cited current events in Iraq, the Balkans and Central Africa, dominated by armed conflicts resulting in genocide, crimes against humanity and war crimes, to justify participation of US negotiators in ad hoc and preparatory committee sessions at the United Nations.¹⁰⁴ These events ostensibly led to the inclusion of crimes against humanity and human rights violations as the subject matter jurisdiction of the ICC.¹⁰⁵ Enumerating only the most egregious acts, coupled with some opt-out provisions, the Rome Statute encourages states to recognize the limited universal jurisdiction of the ICC’s subject-matter jurisdiction.¹⁰⁶ During his tenure, Ambassador Scheffer made clear that establishment of an international court was relevant in light of atrocities that may not be adjudicated in national courts.¹⁰⁷ Important is the creation of a court that can function efficiently, effectively and appropriately within a global system.¹⁰⁸ Despite support for the ICC, Scheffer notes a number of flaws with the ICC treaty including, but not limited to, extending universal jurisdiction for crimes with respect to personal jurisdiction, and exercising jurisdiction over the nationals of a nonparty state.¹⁰⁹ Although President Bill Clinton eventually signed the Rome Statute¹¹⁰ on the last day possible, President George W. Bush did not send the treaty to the Senate for ratification. In the spring of 2002, Bush informed the United Nations that the United States does not intend to become a party to the treaty, and that accordingly, the United States has no legal obligations arising from its signature on December 31, 2000.¹¹¹

Other critics point to a broad application of ICC jurisdiction over some crimes under the Rome Statute. For example, Lu Jianping and Wang Zhixiang note that among the objections is the application of crimes against humanity, which goes beyond what is acceptable to China under customary international law. Jianping and Zhixiang outline events after World War II applying customary international law to national as well as international armed conflicts.¹¹² The definition of crimes against humanity in Article 7(1) of the Rome Statute includes a number of acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.¹¹³ However, there is no requirement that these crimes take place within the context of an armed conflict. Therefore, the Chinese government objects to the absence of a nexus between crimes under Article 7(1) and the context of an armed conflict to avoid external interference in internal affairs.¹¹⁴

Since July 1, 2002, when the Rome Statute entered into force, Uganda, the Democratic Republic of the Congo and the Central African Republic have referred situations occurring in their territories to the ICC,¹¹⁵ while the Security Council has referred two situations.¹¹⁶ Prosecutors have been granted authorization to open an investigation proprio motu on the situation of Kenya.¹¹⁷ Presently, investigations have commenced regarding war crimes, genocide and crimes against humanity encompassing murder, the use of children as soldiers and sexual assault.¹¹⁸ On March 14, 2012, after a voluminous pretrial record involving the prosecutor’s office, defense counsel and counsel for victims, the ICC recorded its first guilty verdict.¹¹⁹ The Court’s sluggish start may be the result of its functioning as an alternative jurisdiction that seems to encourage national prosecution where possible, suggesting a desire to bolster national courts as well as protect State sovereignty.¹²⁰ Moreover, the Security Council retains the statutory authority to delay an investigation or prosecution for a period of 12 months,¹²¹ causing some to suggest the current process reflects ongoing tension between the international interest in promoting justice or securing peace.¹²²

As a permanent international court, the ICC’s ability to exercise its jurisdiction depends on persuading UN member states to comply with the Court’s requests and orders. The ICC’s issuance of an arrest warrant for Omar Hassan Ahmad Al-Bashir, in his capacity as president of Sudan, represents a new development in piercing the veil of immunities for heads of state.¹²³ As Al-Bashir is the first sitting head of state ever indicted by the ICC as well as the first to be charged with genocide, his arrest is opposed by states and regional organizations.¹²⁴ At present, the Security Council’s support is a tepid resolution urging all States and concerned regional and other international organizations to cooperate in . . . facilitat[ing] the work of the Prosecutor and of the Court, including the possibility of conducting proceedings in the region, which would contribute to regional efforts in the fight against impunity.¹²⁵ Some have suggested that the Security Council issue a resolution requiring the entire international community to comply with ICC orders related to the prosecution of Al-Bashir.¹²⁶ A definitive resolution would establish a legal obligation on states to cooperate with the ICC, create additional domestic pressure on Al-Bashir and future heads of state, and resolve serious doubts about the practical enforcement of the ICC’s orders.¹²⁷ The effect of Al-Bashir’s prosecution chips away at traditional diplomatic immunity¹²⁸ arising out of existing and future obligations under international law.¹²⁹

Other issues complicating the ICC’s authority are bilateral agreements that circumvent the Court’s jurisdiction. Under the Rome Statute, a state can bypass obligations to cooperate with the Court by pursuing bilateral immunity agreements under the guise of existing obligations.¹³⁰ For example, Article 98 (2) recognizes an opt-out provision for existing Status of Forces Agreements (SOFAs).¹³¹ According to Hans-Peter Kaul and Claus Kress,

The idea behind . . . [Article 98 (2)] was to solve legal conflicts which might arise because of Status of Forces Agreements which are already in place. On the contrary, Article 98 (2) was not designed to create an incentive for (future) States Parties to conclude Status of Forces Agreements which amount to an obstacle to the execution of requests for cooperation issued by the Court.¹³²

The United States, however, has executed numerous Article 98 Agreements¹³³ that are tantamount to violating the original intent of paragraph 2, as well as general obligations to cooperate with investigations and prosecution of crimes within the Court’s jurisdiction.¹³⁴ Moreover, the Security Council has the power to influence the referral process of cases to the ICC under the Rome Statute.¹³⁵ Removing these obstacles requires amending the Rome Statute to ensure that once the ICC jurisdiction is invoked, states must cooperate with ICC orders.¹³⁶

The future of the ICC may depend on its ability to maneuver around political barriers that exist because of procedural rules within the Rome Statute. For example, under Article 12(2) the Court may exercise its jurisdiction if states are parties to the Statute or have accepted the jurisdiction of the Court.¹³⁷ ICC jurisdiction, however, is subject to authorization by the Security Council under its Chapter VII authority, subject to the veto power of the five permanent members of the Security Council.¹³⁸ Members such as the United States and China can exercise a veto option to deny the adoption of resolutions to refer cases to the ICC for a myriad of reasons that are unrelated to their nationals, justifying their vote in the interest of promoting justice or securing peace.¹³⁹ Moreover, the Security Council has the power to adopt resolutions that exempted states who participate in UN operations that have not ratified the Rome Statute from ICC jurisdiction.¹⁴⁰

Phillippe Kirsch, former president of the ICC, describes these and other issues as a temporal limitation of the Court’s jurisdiction.¹⁴¹ Acknowledging that the ICC cannot end impunity with respect to transnational crimes without support from state parties and international organizations, Kirsch refers to the ICC as a court of last resort.¹⁴² The Court is expected to assert jurisdiction where national systems do not work properly or are unable to work,¹⁴³ exercising a global reach based on cooperation from state parties. Kirsch’s description of the ICC’s mission conflicts with those who envision the purpose of the Court’s existence as ending impunity and preventing the most serious transgressions against human rights.¹⁴⁴ For example, some advocate expanding the jurisdiction of the ICC as the best international forum to bring an end to the culture of impunity that surrounds piracy offenses.¹⁴⁵ Advocating a broader role for the ICC to address crimes of privacy and others, however, runs counter to the views of prosecutors, who cite the lack of resources that limit the number of prosecutions the ICC can bring.¹⁴⁶ Prosecutors assert that ending impunity requires states to incorporate as domestic law the crimes within the jurisdiction of the Court.¹⁴⁷

While differences may exist regarding the jurisdiction of the ICC, those who have contributed to implementing the Rome Statute acknowledge the difficult problem facing the Court: the fact that it operates in a political environment.¹⁴⁸ Evidence of the politics influencing the Court’s future took place in 2010 at the first Review Conference on the Rome Statute of the International Criminal Court in Kampala, Uganda.¹⁴⁹ No major revisions of the Rome Statute were adopted at the Conference other than clarification of the definition and the elements of the crime of aggression.¹⁵⁰ Therefore, the Court remains dependent on states to execute their mandates under Parts 9 and 10 of the Rome Statute, including the apprehension of suspects and the incarceration of convicted persons.¹⁵¹ Reliance on states, however, to prosecute serious transgressions against human rights is consistent with a treaty-based international legal institution of last resort¹⁵² that is beholden to its signatories rather than becoming a supranational legal apparatus.¹⁵³ While progress is deliberately slow, Bruce Broomhall’s observation at the initial stages of the ICC’s existence characterizes the future role of the Court as envisioned by those negotiating the Rome Statute.

The International Criminal Court must ultimately be the foundation stone of any claim that international criminal law is moving towards effective enforcement, that is, towards the rule of law. Only the ICC will have the jurisdictional reach as well as the potential resources and legitimacy to secure, with any regularity, a meaningful degree of accountability for the politically sensitive and politically motivated crimes that lie at the heart of the Rome Statute.¹⁵⁴

Broomhall’s expectations that the Court will serve as the foundation of international criminal law, however, are dependent on encouraging individual states to implement the Rome Statute, and on regional organizations affirming the promotion of the ICC.¹⁵⁵

F. Regional Organizations: The Americas and Transnational Crime

Absent from discussions is a proposal for global enforcement against transnational crimes. The UNODC and other entities within the United Nations function primarily in a supportive role for members to combat TOC within their jurisdiction.¹⁵⁶ Interaction between globalization, transnational crimes and the need for global crime control contributes to a complex task to address an international policy-making agenda.¹⁵⁷ Currently, nation-states’ responses to transnational crimes stretch across a continuum of regulations to combat criminal organizations.¹⁵⁸ In countries where these crimes result in a net cost, jurisdictions adopt harsh enforcement practices to displace criminal organization.¹⁵⁹ Other jurisdictions may profit from the existence of some crimes such as money laundering and adopt lenient crime control policies.¹⁶⁰ As a result, UN organs may be limited to providing a guiding framework, operating as a forum to discuss, exchange information and encourage nation-states to adopt an active enforcement agenda. Therefore, it is not surprising that transnational crime flourishes while some UN members engage in negligible acts to combat criminal organizations.

A viable alternative for nation-states may be reliance upon regional organizations as the primary institutions to combat international crimes. The contributions of these organizations have largely been overlooked in forming a systematic study of international criminal justice.¹⁶¹ During the past 50 years, regional institutions have promoted common interests regarding peace and security, global trade and other policies to minimize conflicting interests among nation-states.¹⁶² Following the similar practices as global organizations, regional regimes encourage members to adopt domestic legislation to comply with treaty obligations. In fact, regional bodies have adopted numerous conventions and adopted standards, codes and best practices to combat criminal activity such as drug trafficking, money laundering, terrorism and corruption.¹⁶³ Actions taken by institutional stakeholders to formulate policy is evidence that conventional crimes are considered a serious threat to the stability of regional communities in light of the profits that motivate transnational criminal organizations.¹⁶⁴ As a result, enforcement measures are a mixture of hard law and soft law, dependent on members executing conventions and standards endorsed by regional organizations.

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Among regional advances, organizations in the Americas have responded with a number of initiatives to combat transnational crime. The Organization of American States (OAS) has a well-established history of cooperation to promote democratic values and defend common interests among its members. Institutional development countering transnational crime within the OAS promotes cooperation and coordination among the 34 OAS members through action programs. The origin of these programs took place in the 1980s with the formation of the Inter-American Drug Abuse Control Commission (CICAD) as illicit drug trafficking threatens the stability of Latin American nations. Subsequent developments required the CICAD to include money laundering, terrorism, alternative development and other programs as part of its mission to combat the illicit cultivation of drugs. Moreover, the threat of transnational crime compels the OAS to cooperate with other regional entities within the Americas that promote democracy, human rights and regional trade agreements. For example, the OAS coordinates its efforts with the Caribbean Community (CARICOM), a flagship institution for the Caribbean region. CARICOM promotes political cooperation with the objective of sustaining economic development to achieve greater advantage for member states dealing with third parties and other entities.¹⁶⁶ Within CARICOM are agencies and task forces responsible for overseeing crime prevention strategies. Other members of the OAS have formed institutions to promote trade agreements, acknowledging that transnational crime is an issue that affects economic development.

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As a result, regional institutional institutions serving a limited membership and sharing a common history and political institutions have a greater opportunity to respond quickly and succeed against transnational criminal organizations.

These and other developments are the basis for advocating that regional institutions serve as a model for combating transnational crime. More specifically, an analysis requires an assessment of various institutional organizations in the Americas that contribute to combating