European Affairs

At the United Nations we are trying to provide a global legal framework that could assist countries to speed up the process of international cooperation, including extradition, mutual assistance and law enforcement cooperation. We are not drawing up UN conventions simply for the sake of it. We want to create a framework that national law enforcement officials can use to receive cooperation and help in crime solving from their colleagues all around the world.

For international cooperation to work, of course, there must be some agreed rules and ways of applying them. But before implementing any rules, we should create a common legal language. This is exactly what we are trying to do at the United Nations, to set up a common international legal language. It is a huge challenge.

What we are trying to do is to enhance the international rule of law. If international legal standards are low, countries will naturally be tempted to solve disputes by other means, especially by resorting to force. Such methods will not help the international community to conduct an effective fight against terrorism, organized crime and drug trafficking through international cooperation.

Much progress has been made during the last 20 years. Fifteen years ago, when I was assistant prosecutor general in Normandy, I received a request from Germany for the extradition of two members of the dangerous terrorist organization, the Red Army Fraction. It was the first time in my 15-year career that I had to handle an extradition request, and I had no knowledge or experience in handling such a case.

I found myself in a much more difficult position when I became chief prosecutor in RŽunion, an island in the Indian Ocean, about 60 miles from Mauritius. Grouped around my jurisdiction were Mauritius, Madagascar, the Comoro Islands and South Africa, which was at the time under an international embargo. Each country had a different legal system.

The legal complications made it horrendously difficult to cope with the heavy drug trafficking in the region. Drugs were shipped from places such as India or Pakistan, via Madagascar, the Comoros and Mauritius, and finally to RŽunion, an overseas department of France.

This is a classic example of why we need good international law. It does not mean that we should completely harmonize the various legal systems all over the world. We shall never adopt the same legislation everywhere. But there should at least be some basic requirements that match. For example, major international crimes should be understood in the same way in every country in the world. We have already defined acts of terrorism, transnational organized criminal groups and the concept of transnationality. That already provides a viable working basis, but it is not enough.

A second problem is conflict between regional and universal legal instruments, of which terrorism provides the worst example. Some regional conventions provide for political exceptions to the Anti-Terrorism Convention, in the case for example of "freedom fighters," which are in contradiction with UN Security Council Resolution 1373 and other recent universal instruments designed to fight terrorism. This conflict must be resolved.

One good aspect of the regional instruments, on the other hand, is that they can reinforce the fight against terrorism because they are closer to reality than the universal instruments. Regional instruments can often enforce in practice what the universal instruments intend to achieve, because the regional instruments are stricter and tougher in defining offenses, while universal instruments are a combination of all the world's legal systems. Our global effort should aim to make the regional and universal instruments work together more effectively.

It is critical that global organizations work with regional organizations in helping countries to enhance their legal frameworks and make their laws compatible with universal instruments.

In the recent past, the international community has made a good deal of progress. It is a good omen that these instruments, particularly the Convention against Transnational Organized Crime and the UN Convention against Corruption, were each negotiated in the exceptionally short period of two years. When we discuss universal instruments in the United Nations, it usually takes five to ten years. It is remarkable that it took only two years to agree on the Convention against Transnational Organized Crime, which is a really good, if complex, universal instrument that provides excellent tools for law enforcement.

And it was not just a single convention. We also negotiated three protocols: one on trafficking in persons, especially women and children, a second on the smuggling of migrants and a third on manufacturing and trafficking in firearms. None of this was easy, much of it was controversial, but we succeeded in getting a definition of trafficking in persons for the first time.

We then negotiated, also in only two years, a UN convention against corruption, which contains provisions on the criminalization of the main corruption offenses, as well as important measures providing for the seizure of assets illegally acquired by corrupt practices and their repatriation. If, for example, a country's leader steals a large sum of money and banks it in another country, the country from which the funds have been embezzled can demand its money back. The country where the money is banked has to give it back. Precise terms have been agreed for this procedure.

The United Nations, however, is not setting itself up as some kind of supreme world body that gives orders to its member states. National governments remain the masters, and they also have to do the work. They must go through traditional international cooperation mechanisms, such as extradition, mutual assistance and law enforcement cooperation. But they must take into account all the essential elements that have been agreed to speed up the process of international cooperation.

We at the United Nations fully recognize that the countries of the world are not yet ready to adopt a general treaty on international cooperation, and to give up all their sovereignty. But they do agree on the need to set up global standards to fight organized crime.

As a result of the new Convention, when a U.S. federal prosecutor, for instance, requests extradition from a continental country, such as France, on the basis of conspiracy, the French authorities must comply even though they do not recognize conspiracy in France. The French judge cannot refuse extradition of the person in question because it is not provided for under French law.

Organized criminal groups have no frontiers and they stash their money away in fiscal havens. The need to act was recognized by the more than 120 countries that participated in the negotiations, including the United States, which was heavily involved and supported the participation of the least developed countries in the process in order to have as many countries as possible included.

The treaty also defined corruption, money laundering and a very interesting offense: obstruction of justice. In many countries, especially in Eastern Europe, law enforcement officers, including prosecutors and judges, are often threatened by organized criminal groups. In order to protect them from these kinds of threats, and from bribery and corruption, this offense was introduced into the convention. The negotiators agreed that it is one of the major offenses behind the growth of organized crime. There will accordingly be at least some offenses common to the legal framework of all the participating countries, and which they can all understand.

The Convention also defined some other offenses that fall under the heading of serious crime. It allows a country to request assistance from another country as long as an offense is punishable by four years of imprisonment - provided, of course, that there is a transnational aspect to the offense and it has been committed by an organized criminal group.

Let me illustrate the point by citing a senior French police officer involved in the fight against organized crime. He told me that every day he receives large numbers of requests from other European countries for the identification of owners of mobile telephones. He cannot do that. First, he does not know who will pay for the identification, because the company that provides the name of the owner must be paid. Second, he is not sure that he can provide the information unless a judge requests it. If this is a problem between two countries that are members of the European Union, you can imagine the difficulties there would be at world level.

But we now have a solution. Under its provisions for law enforcement cooperation, the transnational organized crime convention allows the identification of the telephone owners, without recourse to a judge when it is not necessary under domestic law.

There remains, however, an important challenge when we talk of law enforcement cooperation. What are we fighting for? What are our goals? Of course, the aim is to fight criminals, but in a certain way. We are fighting for values that are our common heritage in the world, that are embodied in the UN charter. We must always keep these values in mind.

Conventions on issues such as extradition and mutual assistance must also protect the rights of the persons involved in a way that is well defined in international criminal law. Such agreements must not only enhance the capacity to fight crime, but also ensure that, in that fight, due respect is paid to the rights of the individual. That is another reason why UN conventions in these fields are so necessary.

Jean-Paul Laborde is Head of the Terrorism Prevention Service at the United Nations Office of Drugs and Crime. He began his UN career in 1994 as Senior Interregional Adviser with the Crime Prevention and Criminal Justice Program. He then became Chief of the Conventions and Legal Affairs Section at the Centre for International Crime Prevention. He was previously a French prosecutor. This article expresses the personal opinions of the author and does not necessarily reflect the views of the United Nations.


This article was published in European Affairs: Volume number V, Issue number I in the Winter of 2004.