The Missing Link: Reinforcing the UN Convention on Transnational Organized Crime

Laura Boniface

Vol. 41 Associate Editor

Sicily, an island in the Mediterranean off the southwestern coast of Italy, is one of the world’s regions most strongly associated with organized crime. As recently as July 2019, officials in the United States and Italy arrested nineteen mafia suspects in an operation called “New Connection.”[1] The operation was successful in part because of the cooperation between the two nations, which is the sort of outcome envisioned by the United Nations Convention against Transnational Organized Crime (“UN-TOC”). While many countries have a long and legendary history with combatting organized crime, the United Nations developed this commission only twenty years ago.[2] Symbolically, it was signed in Palermo, Sicily.[3] The increasingly transnational nature of organized crime prompted the UN to address the issue in 2000 through the development of the UN-TOC, and while it has facilitated operations such as the one just mentioned, it could benefit from an updated look at its member states’ strategies, particularly as the structure of organized criminal groups changes. “Generally, there is a consensus that organisations [sic] with well-structured hierarchies—the ‘mafia model’—have become an exception and have been replaced by crime which is much more ‘disorganized.’”[4] These non-hierarchical groups are increasingly comprised of “loosely affiliated networks of criminals who coalesce around certain criminal opportunities” and which are “much more amorphous, free floating, and flatter, and thus lacking in a rigid hierarchy.”[5] This trend and the recent operation’s name—New Connection—draw attention to one of the most important aspects of law’s ability to address organized crime: connection, or the associations between individuals who work together to create organized criminal enterprises. While the UN-TOC starts to address the broader issue of transnational organized crime, it could benefit from looking at countries’ domestic organized crime laws to more directly target connections between individuals. For example, the United States’ Racketeer Influenced and Corrupt Organizations Act, colloquially known as “RICO,” addresses an extensive list of crimes that are often undertaken by criminal groups, and importantly, it puts a focus on connections between members. The focus on links between criminals is a dimension that the UN-TOC lacks. RICO was passed in 1970 as Title IX of the Organized Crime Act.[6] The statute created four new crimes.[7] Section 1962(a) prohibits money laundering, or in other words, the use of “dirty money”—money acquired through racketeering—to gain any interest in legitimate businesses. Section 1962(b) prohibits the use of racketeering acts, such as extortion, to gain any interest in legitimate businesses. Section 1962(c) prohibits the use of racketeering behavior in the operation of a legitimate business. [8] Finally, § 1962(d) prohibits conspiracies to violate §§ 1962(a)–(c).[9] In turn, § 1961(1) defines “Racketeering activity,” according to § 1961(1), includes twenty-seven criminal activities like gambling, arson, bribery, embezzlement, and drug trade.[10] A “pattern” of racketeering activity requires at least two activities from the list in § 1961(1); at least one of those activities must have been committed after the effective date of the statute, and the most recent activity must have occurred within ten years of another racketeering activity.[11] RICO targets the flow of income from illegal sources and intends to prevent it from being laundered through legitimate businesses. Importantly, it is capable of a wider reach because of its conspiracy component. By associating with organized criminals and committing at least two of the crimes committed on the list, a person can fall within RICO’s reach; in the use of RICO against an illegitimate enterprise, “any defendant who participated in two or more predicate acts can be found to have associated with the enterprise and can be joined in a single indictment with any other defendants who committed any other predicate acts as part of the enterprise.”[12] RICO’s inclusion of a long list of racketeering activity, combined with the conspiracy component, allows it to reach more criminals, regardless of how they are connected within or to an organization. However, the UN-TOC contains the word “conspiracy” only once, in Article 6, which narrowly addresses “Criminalization of the laundering of proceeds of crime.”[13] The UN-TOC—necessarily, as a relatively new product of a supra-governmental body—focuses on facilitating cooperation and building a framework for that cooperation. There are fewer descriptions of criminal activities and a greater focus on the cooperation measures for member states.[14] According to the UN, States that ratify [the TOC] commit themselves to taking a series of measures against transnational organized crime, including the creation of domestic criminal offences (participation in an organized criminal group, money laundering, corruption and obstruction of justice); the adoption of new and sweeping frameworks for extradition, mutual legal assistance and law enforcement cooperation; and the promotion of training and technical assistance for building or upgrading the necessary capacity of national authorities.”[15] Importantly, and likely acknowledging the shifting nature of organized criminal groups, the UN-TOC establishes that “organized crime” can also apply to non-hierarchical groups.[16] All of these elements begin to get at the issue of the connections between members. But it could go further—for example, by incorporating elements like RICO’s extensive list of crimes or its emphasis on the conspiracy component. As operation New Connection shows, the UN-TOC was a valuable first step toward combating transnational organized crime. It facilitated the adoption of organized crime statutes by member states, and it provided some guidance for standardized definitions. However, because of the increase in decentralized organized criminal enterprises, it is important to continuously consider how the law can evolve to keep up with its targets. In this specific case, it is important for the UN-TOC to target the connections between members of a criminal enterprise. To accomplish this, the UN-TOC could take another look at the terms and scope of individual countries’ domestic laws—particularly in naming organized criminal activity and emphasizing conspiracy—to identify additional ways to reach more individuals who are connected to organized crime.

[1] Claire Parker and Stefano Pitrelli, 19 Mafia Suspects Arrested in Coordinated Raids in Italy and New York, Wash. Post (July 17, 2019), https://www.washingtonpost.com/world/2019/07/17/mafia-suspects-arrested-coordinated-raids-across-italy-new-york/. [2] United Nations, United Nations Convention against Transnational Organized Crime and the Protocols Thereto (2020), https://www.unodc.org/unodc/en/organized-crime/intro/UNTOC.html. [3] Id. [4] Kristof Titeca, Illegal Ivory Trade as Transnational Organized Crime? An Empirical Study Into Ivory Traders in Uganda, 59(1) Br. J. Criminology 24 (Jan. 2019). [5] James O. Finckenauer, Problems of Definition: What Is Organized Crime? 8 Trends in Organized Crime 63, 65-66. [6] Gerard E. Lynch, RICO: The Crime of Being A Criminal, Parts I & II, 87 Colum. L. Rev. 661. [7] Id. at 680. [8] Id. at 681. See also 18 U.S.C. § 1962. [9] 18 U.S.C. § 1962. [10] 18 U.S.C. § 1961(1). [11] Id. [12] Supra note 6 at 703. [13] United Nations Convention against Transnational Organized Crime and the Protocols Thereto, G.A. Res. 55/25 (November 15, 2000) https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf. [14] Supra note 2. The convention involved the adoption of three supplemental protocols closely related to transnational organized crime. These protocols are the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, the Protocol against the Smuggling of Migrants by Land, Sea and Air, and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components, and Ammunition.^[14] [15] Supra note 2. [16] Tom Obokata, The Value of Int’l Law in Combating Transnational Organized Crime in the Asia-Pacific, 7 Asian J. of Int’l Law 39 (2017). The views expressed in this post represent the views of the post’s author only.