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
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Transnational

Crime

The panel was convened at 9:00 a.m., on Saturday, March 30, by its Chair, Bruno A. Ristau,* who introduced the panelists: Ugljesa Zvekic, Research Coordinator, UN Interregional Crime and JusticeResearch Institute,Rome; and Mary Ellen Warlow, U.S. Department of Justice. International Cooperation and Transnational Organized Crime

By Ugljesa Zvekic** The main theme of thismeeting is "Are international institutions doing their job?" The answer is probably "yes" and "no." But perhaps a more pertinent question is how well theywill do their job tomorrow. This paper will discuss several issues related to international cooperation with respect to transnational organized crime, with a view 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 the futureof international institutions. As a criminologist, I attempt in this paper to balance considerations and concerns of criminology with those of criminal justice. The topic chosen requires a blend of approaches, as does the strategy of international cooperation. Therefore the discussion will focus on two broad issues: certain characteristics of transnational organized crime; and international responses through international cooperation. International Trends inOrganized Crime World interdependence and ease of communication, transport,trade and migration?as well as an emerging transnational regulatory framework (partly interstateand largelydevel created enormous oping as a result of the activities of transnational corporations)?have
ble manner.

world, although not necessarily inan equita opportunities for increasing benefits across the

That crime fullyparticipates in these global processes is almost a criminological truism. As economics, politics and culture give rise to and shape crime patterns within national boundaries, so do processes of global exchange give rise to and shape transnational crime patterns.Transnational organized crime isneither a response tonor a consequence of global interdependence; it is an almost natural component of the global 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 and the exploitation of international market opportunities lie at theheart of the modern criminal enterprise. The use of violence, corruption and evasion of laws are methods for gaining profit,which, in turn, is invested in other illegal activities or used to penetrate legitimate financial and economic markets (for example, by money laundering). Major activities in which transnational criminal organizations are involved include: drug trafficking,traffick ing in nuclear materials; waste dumping; illegal arms trafficking;automobile theftand smuggling; trafficking in people (illegal aliens, women and children); and trafficking in

* 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 the World Ministerial Conference on Organized Transna tional Crime, UN Doc. A/49/748 and background documents (E/CONF.88/2,3,4,5 & 6); E. Savona, Organized Crime Across the Borders, HEUNI papers, No. 6/95; H.F. and Regional Develop Woltring, International ments in the Field of International in Penal Matters Co-operation (to be published).

533

534 ASLL Proceedings, 1996

body parts. Criminal organizations are internationalizing their activities 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 to be a phenomenon restricted to a few countries has become a diffused process of infiltrationand cooperation. This can be seen particularly inEastern Europe, which is not only one of themain producers and exporters of organized crime, but also a recipient

and actor inmoney laundering.North America is a major producer and the largest import market, 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 (for example, Nigerian couriers) and proceeds of crime. Organized crime profits from unequal market opportunities and unequal criminal justice risks. That is increased opportunities in illegal markets (such as the sale of cocaine in Europe and internal conflicts for arms trafficking in Eastern Europe), on the one hand, and inappropriate legislation and control structure,on the other. Both influence organized movements. Inversely, both the reduction of illegal market opportuni crime's transnational ties and an increase in criminal justice riskwill influence thegeopolitics, theorganizational

set-ups and the economic focus and modus operandi of transnational organized crime. Therefore, equalization of criminal justice risk and market opportunities will play a signifi cant 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 Responses While 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 formsof bilateral cooperation, including technical assistance in law enforcement and criminal law reform, bilateral treaties, and a series of informal
working

These

Action Task Force and the Inter-American Drug Abuse Commission (CICAD). As a result of growing domestic concerns with organized crime and concomitant experi ences gained through bilateral 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

the United States.With a growing membership of Eastern European countries, ithas gained in significance. Two regional initiatives in the area of narcotics and money laundering were inspired by thework of the Financial Action Task Force; theCaribbean Financial

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 of Europe's Convention on Laundering, Search, Seizure and Confis cation of theProceeds fromCrime allows parties to it to cover theproceeds of non-drug related crimes. It also facilitates cooperation with nonmember states such as Australia and

are all important in terms of attempts to overcome certain difficulties related to differences in legal systems otherwise precluding effective cooperation. Bilateral coopera tion is also a flexible strategy that, at the same time, requires very clear and precise obligations on the side of the partners involved. However, despite increasingly bilateral networking,major gaps still remain?thus providing opportunities for transnational organ ized crimemovements if, where and when the criminal justice risk isworth taking.There mutual cooperation is not only a logical strategy for thwarting transnational criminal fore, processes, it is also an effective instrument to build on and profit from, and with which

arrangements

between

law enforcement

and

the judiciary

of a number

of countries.

Saturday, March

30: Morning

535

adjusting it to the threatsof organized crime, mainly by considering the commission of crime by an organized group as a qualifying feature and by extending the number of offenses that are considered activities of organized crime.Many countries, however, con sidered the category of conspiracy crime sufficient to cover organized crime and did not follow theUnited States and Italy in criminalizing membership in an organized crime association. It is also important to note that many countries introduced the crime ofmoney laundering after the 1988 Vienna Convention but also kept itwithin the limits of the As Convention, that is, by restricting the provision to proceeds from drug trafficking. mentioned above, the Council of Europe's Convention extended it to nondrug crimes, although countriesmay limit itsoperation to selected categories of crime by using reserva tion clauses. Moreover, many countries thathave no specific provisions for money launder ing forfeitassets and confiscate the proceeds of crime. Corruption by organized crime is also increasingly dealt with by the criminal justice system through the promulgation of anticorruption legislation and strategies. In the area of procedural legislation and law enforcement methods, there are still a number of divergences, ranging from a traditional difference between countries with man

issues. Use of computers and information systems for collecting evidence and monitoring financial movements, coordination among law enforcement agencies at differentnational and international levels, and utilization of sources from financial and taxation structures are becoming common in a number of countries. Yet differences in organizational struc tures and admissible methods and evidence still create problems in bilateral, regional and
international cooperation.

datory and discretionary prosecution, through acceptance or denial of electronic surveil lance, undercover agents and controlled delivery, to the granting or not of immunity to informants who disclose informationon organized crime groups and their leaders. A num ber of these methods are increasingly accepted?with certain limitations connected, for with legal tradition, or with particular sensitivity to "privacy" or "political" example,

A major summary of the international developments and a significant impetus toward UN World Ministerial enhancing internationalcooperation in this area was provided by the 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 fully recognizes the importance of, and urges, international cooperation and development and implementation of 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 to providing effective provisions and "closer alignment of legislative texts." In particular, they call for the criminalization of participation in criminal associations or conspiracies and the imposition of criminal liability on corporate bodies. They also urge the utilization of reliable evidence-gathering techniques, with caveats as to "the full respect for internation ally recognized human rightsand fundamental freedoms, inparticular the right toprivacy," and "judicial approval or supervision as appropriate." Attention is also given to preventive strategies,development of specialized investigative units, and compensation to thevictims of organized crime. An attemptwas made to identifya number of features of organized crime such as group organization, hierarchical links or personal relationships thatpermit leaders to control the group; use of violence, intimidation and corruption to gain profit or control territoriesand markets; money laundering activities; the potential for expansion of activities beyond national borders; and cooperation with other organized transnational

groups.

At the level of international cooperation, the Naples summit called for the strengthening of bilateral and multilateral assistance and the promotion of model treaties. Particular

536 ASLL Proceedings, 1996

mechanisms, includ importancewas given to thedevelopment of operational and informal ing "contact points," joint task forces, sharing of advanced technologies and methodolo gies, and sharing of intelligence. Much emphasis was placed on technical assistance in

drafting legislation, exchanging information and training criminal justice personnel. Pre vention and control ofmoney laundering and control of the proceeds of crime were given

particular importance. The Naples summit recognized and summarized a number of strategies and interventions in the prevention and control of organized crime that,as mentioned above, already exist in a number of countries. The summit has, in a certain sense, confirmed existing trends and underlined converging elements to facilitate international cooperation. One of the most importantconclusions of the summit is that transnational organized crime is a global phenomenon and a common strategy should be pursued aimed at "defeating the economic power of criminal organizations, which should involve both criminal law measures, in particular appropriate sanctioning and sentencing, and adequate regulatorymechanisms." However, the Naples summit did not produce an international convention, but only UN Commission on Crime Prevention and Criminal Justice to initiate consul requested the tations as to theopportunity,possible impact and issues tobe covered by such a convention or conventions. The issue of an international convention against transnational organized crime 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 still much tobe desired in termsof developing a conven tion specific to organized crime. The broader the subject matter 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 in harmonizing substantive criminal laws, failed to adequately address theproblems of international coop eration in the investigation, prosecution and punishment [and] frequently they incorporated
by reference

assistance and extradition." Woltring's analysis of the state of art in the area of interna tional cooperation in penal matters clearly shows that there are still significant impedi ments, including 4'differences in legal systems, stages of economic development, cultural and social values; differences in approaches, particularly by emphasizing methodology as 'letter rogatory' or the prima facie opposed to the objective sought to be achieved?the case requirement; earlier multilateral conventions are both conduct specific and erro neously assumed the existence of workable modalities and networks." Notwithstanding their merits, the conduct-specific conventions limitdevelopment of a universally effective mutual assistance scheme. Woltring argues thatprogress has been made, for instance, as

ships." However, the experience with the 1988 Vienna Convention is illustrative since it is "the firstUN Convention which imposes international cooperative mechanisms on its signatories, whilst at the same time exhorting those signatory states to conclude bilateral or other arrangements thatwould enhance the operation of the obligations contained in the drug convention." Until the time comes to reach a consensus and a high degree of political commitment to adopt an international convention against transnational organized crime, themost feasible path to follow is that of furtherdevelopment of international instrumentstopromote (as stated in the Naples Declaration)4 'closer alignment or compati of national legislationwith regard to criminalization of organized transnational crime, bility the adoption of more effective criminal justice measures and the greater use of mutual

pre-existing?and

in many

cases

non-existent?bilateral

and

other

relation

regards the "prima facie case" requirement in extradition, exemplifying thatpolitical will is important in overcoming a number of difficulties. Another important facilitator is to

Saturday, March

30: Morning

537

focus on the objectives rather than on themethods, as was the case with theOptional Model Treaty onMutual Assistance regarding theproceeds of crime,1 or the Protocol to the earlier-mentioned Council of Europe's recent convention on the same subject. Flexibility is also needed in a sense that, as applied to the principle of reciprocity, "it may not be necessary thatevery obligation owed by one state to another 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 important requirements for effective * move away from 'the antiquated individual internationalcooperation inpenal matters is to responsibility for individual acts basis [which] would leave untouched organizers and financiers whose conduct is as, ifnot more, reprehensible."

Conclusion Ithas become evident that thegrowing activities of organized crime pose a serious threat worldwide in terms of national and international security, as well as political, economic, financial, and social disruptions. A high level of flexibility in structure, activities and cross-border movements, along with the increased sophistication of themodus operandi of members of organized crime groups, require adequate domestic and international re sponses, cooperation and coordination. Common strategies need flexibility and adaptability in order to avoid a "mirror effect" of reciprocal influences between crime and responses to it.As organized crime is opportunity-driven, themain international strategies should aim at reduction of illegal market opportunities; equalization of criminal justice risk; and

tional community should aim at thepromotion of bilateral, regional and multilateral state based arrangements, as well as informal and operational cooperation between financial institutions, law enforcement, the judiciary and regulatory bodies. Technical assistance to enhance capacities to deal with organized crime in itsnational and international ramifica tions is of paramount importance.No less important is a change in traditional legal concepts strongly tied to individual actors and individual punishments, as well as "shaking off" some traditional symbols of the sovereignty of national penal law, which impede more effective international cooperation. Flexibility, adaptability, openness to new ideas and methods, pragmatism, rationality and full exploitation of already-existing opportunities for international cooperation in reducing crime opportunities and increasing criminal jus tice risk are sine qua non in international efforts to prevent and control transnational will do their job if they themselves develop the organized crime. International institutions ability to grasp and handle the realities of today and the challenges of tomorrow.Visions of tomorrowwill be less alarming ifactions of today are less the reminiscence of yesterday
and more a precursor of tomorrow.

cooperation in prediction, monitoring, prevention, control and punishment. It is not only a matter of criminal law and law enforcement; rather, international strategiesmust develop equally effective prevention and control. Both prevention and control should aim at the some countries?political economic and?in power of organized crime, as well as the of organized crime and local communities. On the control side, the interna interweaving

Remarks

byMary

Ellen

Warlow*

I approach this issue from long experience as a practitioner on the side of the Department of Justice indealing with internationalcriminal cases. It is oftenwork of great frustration,
1 The Optional Protocol is a part of theModel Treaty on Mutual the UN General Assembly in Resolution 45/117 (Dec. 14, 1990). by *U.S. Department of Justice.

Assistance

in Criminal Matters

adopted

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 light of the overall theme of the conference, I will discuss the contrasts between modes of cooperation at themultilateral and bilateral levels. There is a tendency among multilat prosecutors and police to favor bilateral treaties,yet there is certainly value in the eral approach. Each approach has its strengths,depending on our objectives and expecta

of statements produced at such gatherings is importantfor two reasons. First, itemphasizes an awareness and broader understanding of the phenomenon. Second, itbolsters and gives expression topolitical will. Political will is an essential component in achieving multilateral and bilateral cooperation, since theremust be will tomove forward, not just engage in
rhetoric.

tions, including the objective to act quickly. The extent to which issues of crime and transnational crime are being addressed is increasing: at multilateral political fora, theUnited Nations, crime conferences and meet G-7 and P-8,1 as well as theSummit of the Americas last year. The development ings of the

concrete steps, including formal cooperative mechanisms like treaties. Presently, there is a distinction between the objectives and the expectations regarding treaties at themultilateral and bilateral levels. One thing that you can achieve through multilateral treaties is a degree of universality and uniformity in punishing particular types of crime. The Vienna Convention and its predecessing multilateral, antidrug conventions are striking examples of that.The Vienna Convention is quite a striking instrument in its thoroughness and the degree of acceptance ithas in theworld community, particularly in mid that it includes the regulation ofmoney laundering?a relatively recent crime. In the 1980s, many lawyers, governments and scholars on the subject had difficulty deciding whether money laundering was really a crime. However, in a very short period 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

we worked. Now we see greater expression of these issues in diplomatic circles and at thehighest policy levels at intergovernmental meetings. These statements and these politi cal fora are very important,but they only establish a framework.What is needed are

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 a matter 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 strength and assistance from the State Department and a very able group of lawyers with whom

framework for countries to use in approaching thisdifficult area. Additionally, a collateral Financial Action Task Force?has been very suc effort to theVienna Convention?the most thorough with standards for financial institutions,is one of the cessful. Its framework, treatments of money laundering prevention and is a remarkable achievement that has Vienna Vienna Convention. Overall, the tremendously complimented the framework of the Convention dealt with relatively discrete issues of crime. Drug trafficking is not all that difficult to understand, and money laundering, even though a more recent phenomenon, seems to be easily grasped. Although the development of theVienna Convention took a tremendous amount of effort?and my compliments to all who worked on it?it is quite a good instrumentand, I think, an example of what can be achieved in a multilateral, anticrime treaty. Another thing thatamultilateral treatycan accomplish is to set a framework for coopera

1 The G-7 plus Russia.

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 drugs in a bilateral treaty. I will tell you the practical meaning of this. In thishemisphere, about

different legal system. But, overall, the regional framework has had particular advantages. The United States is trying to do some of the same thingswithin our own hemisphere with theOrganization of American 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 that bilateral treaties are so appealing to the practitioner dealing with the urgency of cases of transnational organized crime is that in the bilateral context, the
range of cooperation can be achieved. Basically, the evidentiary needs of the two

instruments at this time?a lack of common principles and procedures throughout the world. There is great diversity in criminal justice systems and approaches to cooperation. For example, there is great diversity in how countries view issues of sovereignty in the context of cooperation. Common law countries tend to be much more flexible and do not see, forexample, the takingof a deposition as an issue of sovereignty.Many other countries believe the taking of depositions is a judicial function and closely protect their ability to control them. As a result, theUnited States has a very different approach and limited success when we deal multilaterally. Interestingly, I think regional instrumentshave a certain promise, since there is a more common legal system at a regional level. This is one reason that stateswithin the European Community have a longer tradition of international cooperation in criminal matters and ease of extradition.Of course, theUnited Kingdom is a bit on the outside because of their

half of the treatieswith Latin American countries date back to the turnof the century.At was not recognized as a problem, much less a crime. By virtue that time, drug trafficking of thesemultilateral treaties,we were able, in effect, to amend those bilateral instruments and proceed with extradition. This is a tremendous practical advantage to us. However, while theVienna Convention did set a very basic framework for cooperation, it reflects a lowest-common-denominator approach. That is the difficulty of multilateral

broadest

parties can be accommodated to the greatest extent possible within the confines of their legal systems. In fact, there are timeswhen treaties serve as the catalyst for a change of law. In the context of an importantbilateral relationship, theremay be a modification of the laws of both countries. Although theUnited States is currently able to achieve more in the bilateral context, there are limitations to proceeding bilaterally. Since we do not have bilateral treatieswith every country, there are gaps. Crime is very adaptable and when the participants move to a new area, we have to play "catch-up" because we do not have treaty instruments in we have a very ambitious agenda in theUnited States for place. Nonetheless, negotiating bilateral treaties, both formodernizing very old extradition treaties and for negotiating new treaties in the area of mutual assistance, or what the Europeans call "judicial assis tance." (In Europe the prosecutors and investigatingmagistrates are frequently judicial officials. Therefore, the investigation of crime is much more commonly placed in the judicial arena than in our system.) It is importantto understand why bilateral treaties are so United States. importantfor the In theworld community and the community of legal systems, the common law system is theminority system, not the prevailing one. Since we are constantly confronted with divergent legal practices, we need to be able to confront them in a rational and predictable

540 ASLL Proceedings, 1996

An example of this is our rules of evidence and questions way. Treaties allow us to do that. of admissibility.We greatly regulate the types and forms of evidence that may 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 through rules 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 the bilateral area and we have had a lot of success.

we face in cooperation. We need to In closing, I would note two critical problems that act pragmatically now, but also look to the future and examine how to deal more globally with these problems. The first critical problem is the extradition of nationals. It is a tremendous barrier to bringing people to justice. The alternative of trial in the country of nationality has proven to be extraordinarily difficult. In some instances it is due to a lack of will, but that certainly is not true in all cases. Relying on countries to prosecute their own nationals is simply not 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 crime move around with speed and at will. The second critical problem deals with producing foreign evidence in domestic courts. It is a heavy burden for the prosecution and defense to obtain domestically acceptable evidence. Foreign evidence frequentlydoes not look like domestically obtained evidence. The problem is not just one of judges 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. most traditional civil As a result, theUnited States has a perpetual problem in some of the law countries where we wish to take a deposition in a criminal trial and 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 where an opportu judges, viewing ad hoc arrangements, are very suspect of such testimony
nity for full U.S.-style cross-examination was not afforded

of a fundamental principle of our law. Therefore, we look to create treaties that allow the participation and presence of U.S. with Italy that authorities in taking evidence. For example, theUnited States had a treaty afforded us this greater degree of flexibility.When the Italians changed their system from 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

and may

view

this as a violation

able to bring 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 twenty of the witnesses were present. Now, this took tremendous preparation and expense. Our Marshall was a major organized Service tells us it may have cost as much as $250,000. However, it between Colombia, theUnited States and Italy. crime case involving cocaine trafficking (The Colombians would send cocaine to organized crime figures inFlorida who would ship it to Sicily; a huge amount of cocaine was transshipped thisway.) This was a tremendous breakthrough.Most countries do not even permit prosecutors or defense counsel todirectly question a witness or defendant, much less let the court set up in another territory. There are two other issues that I think are 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 and wiretaps. Inmany countries, there is a tendency not to permit these types of 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 to penetrate organized crime groups without these techniques.

Saturday, March

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541

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

The final issue deals with implementation of cooperative mechanisms. No matter what typesof cooperative mechanisms are inplace, failure is inevitable if there isnot competence and professionalism among police, judges, defense counsel and prosecutors. We can have all the treaties and statements in theworld. But theywill fail ifpeople in other countries cannot effectively investigate, are not paid enough so that they can view their work with do not have the capacity or educational level to function, or do not have a self-respect, United States and international feeling of professionalism. This is one of the reasons that the are trying to cooperatively train, educate and instill professionalism in the organizations

tion and it would have several functions. Itwould look at treaties; at all the things that Ms. Warlow mentioned, such as professionalism and investigative techniques, and at criminal justice. Within theU.S. government, itwould be at the level of an Assistant Attorney General. People would work each day on all of these problems so that theywouldn't just react to one crime such as drug trafficking. As you know, in 1986, with the program of

I have a comment about regional cooperation. One possibility?es Bruce Zagaris:* western hemisphere, but one thatalso could be emulated elsewhere?would for the pecially be to think about a more proactive and comprehensive framework. One could create an America's Committee on Crime Problems similar towhat was done inEurope in the 1950s even before theTreaty of Rome. Such a mechanism could use theOAS or another institu

with respect to intellectual property protection?and was just a response to lobbying that theU.S. Intellectual Property Trade Associations. The second has to do with customs, by which ismore generic to the type of treaty thatNAFTA is. identified three major areas of access in transnational crime: have pinpointed the extradition problems; (2) theprop you erty involved; and (3) discovery. I thinkwe have gotten a full discussion on the access to property involved in crime. By property, I mean airplanes, vehicles, bank accounts,
estate and so on. to people and evidence. I wonder if our two speakers could address the question of access

Rio, theOAS started to do this,but only with drug trafficking. My final comment is that in an era of free trade,where we are negotiating treaties such as theNorth American Free Trade Agreement, we are also going to have to look at each treatyhaving a broad criminal framework. In NAFTA, there are criminal provisions, but only in two small parts. One is

Dale Furnish:** You've (1) the people involved?and

real

do not have theapproach and procedures of theCouncil of Europe Confiscation Convention immediately available to us. I think the Europeans have more of a common foundation for going after property. However, it is an area where we have to do quite a bit more. I think particularly in Latin America, the laws are either not in place or not effectively implemented. There is an outgrowth not only of theVienna Convention, but within the OAS?a group called the Inter-American Drug Abuse Control Commission (CICAD), which works with countries in the hemisphere to develop their internal law. It is a critical

Ms. Warlow: We have had mixed success. We have had a lot of success in seizing monies and proceeds, particularly inEurope. Criminals still think theycan put their money in Switzerland, but we get a tremendous amount of assistance from Switzerland and other countries, such as theUnited Kingdom. There are problems with forfeiture, since the common law approach to forfeitureisdifferentfrom thatof thecivil law. This is a reason we

* Cameron & Hornbostel, Washington, DC. ** School of Law, Arizona State University.