Towards a new framework in the law of war: incorporating transnational organised crime.

Author:Paulose, Regina Menachery
 
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This article will focus on why transnational organised criminal groups need to be incorporated into the law of war paradigm. States work under the continued assumption that wars are fought only between two parties. This 'us versus them' mentality obscures multiple parties that truly participate in war. This article will suggest that transnational organised crime groups participate in war thereby creating a third party on the battlefield because of their contributions before, during and after conflict. This article will explore how transnational organised criminal groups have positioned themselves to be allies to terrorists during conflict and how they benefit from regime changes in order to gain control at a later stage. This article will conclude with a discussion on how transnational organised crime groups could be classified as combatants in international humanitarian law, so that efforts to counteract their impact can be handled under more than one framework.

I INTRODUCTION

Terrorism and organised crime are considered two distinct categories within criminal law. Terrorism is addressed both in international criminal law and in international humanitarian law ('IHL') because most terrorist attacks are considered 'armed attacks'. (1) This is different from organised crime which is analysed through domestic criminal law or transnational criminal law. (2) The changing portrait of organised crime in the 21st century has led to a growing amount of scholarship which has started to explore whether terrorism and organised crime networks have potential links. While Hubschle argues that there is a lack of empirical evidence to determine whether this relationship exists and how this alliance would function, (3) there is a growing concern that these groups are in fact working together and are even adopting each other's motives to achieve multiple aims. (4) With this in mind, it is clear that IHL would invoke potential military responses towards terrorists, the same should hold true for organised criminal groups who willingly participate in war.

This article critiques the rigid framework that is applied to handling organised crime. This article examines situations where organised criminal networks contribute to war. Since nation-states have been willing to apply IHL to terrorists and classify them as unlawful or enemy combatants, can the same analysis hold true for organised criminal groups? This article will explore these questions by first examining the rise of global crime then detailing situations in which terrorists and organised criminals have and are working together. Finally, this article will discuss why it is necessary to consider the true role of organised crime within IHL by moving beyond the traditional criminal law framework.

II GLOBALISATION OF CRIME

The global crime agenda emerged 'more than 50 years ago within United Nations rhetoric as a social issue.' (5) Since garnering the attention of the global community, various bilateral treaties have been formed to address global criminal activity, which culminated in the two largest multilateral treaties to address crime: the United Nations Convention against Corruption ('UNCAC') and the United Nations Convention against Transnational Organized Crime ('UNTOC'). (6) While organised crime is not a new phenomenon, (7) the reaction by the international community towards organised crime is not unfounded. The projected trend between now and the year 2025 is that the power of non-state actors, (8) such as businesses and criminal networks, will increase with 'relative certainty'. (9)

The rise of criminal networks can be attributed to the presence of unstable states and resource scarcity, although organised crime does have a presence in stable states. (10) Instability, however, allows organised crime to 'flourish' as they do not have 'solid legal, administrative frameworks to regulate licit and illicit markets.' (11) Further, corruption 'fosters the ideal environment' for organised crime. (12) Corruption tends to allow organised criminals to dictate governance measures and if 'left unchecked organised crime, even at a small scale, can produce long-term negative impacts, particularly in development settings where institutions remain weak and democratic processes are still consolidating.' (13) The ability of organised criminals to exploit weak governance is not necessarily targeted at national governments. In Italy, for example, the state of Calabria is said to be run by 'Ndrangheta, a powerful transnational mafia group, which uses Calabria as its home base to make important decisions regarding its illicit markets. (14)

The illicit market created by organised crime should not be underestimated. It is projected that there are at least 52 different criminal activities that fall within the illicit market, which range from counterfeit medicine to counterfeit batteries. (15) Globalisation has thus created a 'growing interconnectedness' (16) in which advanced communication, transportation, and technology allow these networks to expand their influence internationally. (17) This has turned organised criminal groups into transnational organised criminals. (18) This ability to become transnational is attributed to the low level barriers that allow for criminal groups to easily travel, use the free market system to sell and produce illicit goods, in addition to the ease of internet banking. (19)

The success of these criminal groups makes them 'fluid', which allows them to create new alliances, engaging in a wider range of illicit activities, including supporting terrorism. (20) Sadly, 'organised criminals don't want to just make money, they want to control something.' (21) The United Nations Office on Drugs and Crime ('UNODC') notes that organised crime poses a threat where the rule of law is already weakened, such as in Syria and Mali, which will be explored later in this article. (22)

Criminal networks are a reality and have taken advantage of globalisation to be successful. Organised crime now 'has an impact on international peace and security.' (23) As will be discussed, it is time to incorporate organised crime into into additional frameworks beyond criminal law, specifically IHL, in order to expand our ability to handle organised crime in a flexible manner. Organised crime has taken root within the battlefield in order to benefit from the instability created by war--a place where weak governance and an illicit market create an intersection for illicit success.

  1. ORGANISED CRIME TAKES ROOT

Criminal organisations have a tendency to garner success in conditions of war and unrest. (24) When this kind of environment presents itself, various mutations of relationships form between organised criminals and terrorists, making 'peace elusive' (25) and thereby creating the 'crime-terror nexus.' (26) In some circumstances, organised criminals may simply aide terrorist groups with materials and supplies that they need, as will be evident in the example of Mali below. In other circumstances, the criminal or terrorist group may mutate into a 'hybrid organization' that is 'part criminal, part terrorist.' (27) The Tamil Tigers (also known as the Liberation Tigers of Tamil Elam, 'LTTE') is an example of such a hybrid organisation. They are considered one of the most 'effective' and 'brutal' terrorist organisations in the world. (28) Aside from the separatist political agenda that it carries out, the LTTE is also known to procure its finances through human, drug, and arms trafficking. (29) Interestingly, the reason for LTTE's foray into organised crime was the need for a steady stream of finances. (30) In 2009, the death of the LTTE's leader signaled the end of the group, (31) however, it is reported that the LTTE is still actively raising funds for potential attacks in Sri Lanka. (32)

Whatever the mutation of the organised criminal network, the motivation of organised criminals to partake in war may have various reasons. First, since organised criminal groups thrive on weak governance, the eruption of conflict allows them to take advantage of this instability. Another possible reason is that organised criminal networks can be used as runners during conflict because they have the ability to overcome logistical hurdles, such as economic sanctions, which allows them to work for multiple parties. (33) This kind of behaviour is evident in Syria while Syrian leader Bashar al-Assad loses economic options because of sanctions imposed by western powers. As noted by Berman, the regime

is likely to turn to illicit networks to obtain the cash and materials it needs to continue prosecuting the war. As more money and goods flow through these groups in and out of Syria, they will become stronger, increasing the already high levels of corruption in Lebanon. Within Syria, criminals connected to the regime will also see their resources and power increase creating worrying...

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