TOPIC 4

TRANSNATIONAL
CRIMES
Dr. Dao Le Thu
Comparative Law Institute
 The concept of transnational
crimes
 TheFirth UN Congress on Crime Prevention and
the treatment of Offenders in 1975: “criminal
phenomena transcending international borders,
transgressing the laws of several states or
having impact on another country”

 TheFourth UN Survey of Crime Trends &

Operations of Criminal Justice System in 1976:
“offences whose inception, perpetration and/or
direct or indirect effects involve more than one
country”
 The concept of transnational
crimes
 The 2000 UN Convention against Transnational
Organized Crime (UNTOC) determines an offence is
‘transnational’ if it satisfies one of a number of
alternative conditions:
(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.
 Typical transnational crimes

 Piracy

 Crimes of Human trafficking

 Crimes of Drug trafficking
 Crimes of Terrorism
 Crime of Money Laundering
 Environmental Crimes…
 Crimes of Human Trafficking
 The need for criminalization of human
trafficking
 Human rights conventions call for the
suppression of trafficking of women and
children
 The seriousness of trafficking in persons,
especially women and children
 The situation of transnational activities of
trafficking in persons
 Crimes of Human Trafficking
 The global legal instruments for criminal
response to human trafficking
 The UN Convention against Transnational
Organized Crime (UNTOC) in 2000, in Palermo,
Italy: Article 5(1) obliges State Parties to establish
as criminal offences the acts of participation in an
organized criminal group when committed
intentionally.
 The Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and
Children supplements the UNTOC, setting out a
definition of trafficking in persons in Article 3(a).
 Crimes of Human Trafficking

 The UN Convention against Transnational

Organized Crime (UNTOC) in 2000, in Palermo,
Italy:
The Convention has no separate definition of
trafficking in persons but implicitly included it in
organized criminal acts.
How to recognize elements of human
trafficking crimes?
 Crimes of Human Trafficking
 The Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children,
supplementing the UNTOC

 Aim is to prevent and combat human trafficking

victims
 Inspired from the U.S’s ‘3P’ response to human
trafficking: prevention, prosecution, and protection
 Primary function is to establish a separate offence
of human trafficking
 Crimes of Human Trafficking
 The definition of trafficking in persons (Article 3 of the
Protocol): 3 elements
 Acts: recruitment, transportation, transfer, harbouring or
receipt of persons

 Means: to achieve the consent of a person having control over

another person, the perpetrators use one of the following
means:

 the threat or use of force or other forms of coercion;

 the use of abduction, of fraud, of deception;

 the abuse of power;

 the giving or receiving of payments or benefits

 Purpose: exploitation
 Crimes of Human Trafficking
 Notes:
 Exploitation: the exploitation of the prostitution of
others, other forms of sexual exploitation, forced
labour or services, slavery or practices similar to
slavery, servitude or the removal of organs
 The consent of victims of trafficking is irrelevant:
victims may be willing to move because of poverty,
lack of employment opportunities, conflicts, etc…
 In case of trafficking in children, there is no
requirement of the means
 Crimes of Drug Trafficking

 The three major United Nations drugs

Conventions
 United Nations Single Convention on Narcotics
Drugs, 1961 as amended by the 1972 protocol
 United Nations Convention on Psychotropic
Substances, 1971
 The Convention Against Illicit Traffic of Narcotic
Drug and Psychotropic Substances, 1988
(Vienna Convention)
 Crimes of Drug Trafficking
 United Nations Single Convention on Narcotics Drugs,
1961

 The Convention aims to combat drug abuse by coordinating

international action.
 There are two forms of intervention and control that work
together:
 to limit the possession , use , trade in , distribution , import ,
export, manufacture and production of drugs exclusively to
medical and scientific purposes.
 to combat drug trafficking through international cooperation to
deter and discourage drug traffickers.
 Under the Convention, narcotic drugs are mainly listed in
Schedule I (more addictive narcotics, ex: heroin) and in
Schedule II (less addictive narcotics, ex: codeine)
 Crimes of Drug Trafficking

 United Nations Convention on Psychotropic

Substances, 1971

 The Convention established an international control

system for psychotropic substances (e.g. amphetamines)
 It responded to the diversification and expansion of the
spectrum of drugs of abuse and introduced controls over
a number of synthetic drugs
 The Convention contains import and export restrictions
and other rules aimed at limiting use of psychotropic
substance to scientific and medical purposes.
 Crimes of Drug Trafficking
 Convention against the Illicit Traffic in Narcotic Drugs
and Psychotropic Substances, 1988
 It lists the substance frequently used in the illicit manufacture
of narcotics drugs and psychotropic substances, commonly
referred to as precursors, in two Tables called Tables I and II.
 Parties have to take measures to prevent diversion of these
substances from the licit channels to the illicit manufacture of
narcotic drugs and psychotropic substances.
 It provides comprehensive measures against drug trafficking,
including provisions against money laundering and diversion of
precursor chemicals.
 It provides for international cooperation through, for example,
extradition of drug traffickers, controlled deliveries and transfer
of proceedings.
 Crimes of Drug Trafficking
 Convention against the Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, 1988

The need of the Convention:

 There is the link between illicit traffic in drugs and other related
organized criminal activities which undermine the legitimate
economies and effect the stability, security and sovereignty of
States.
 Illicit traffic is an international criminal activity the suppression
of which demands urgent attention and highest priority.
 Illicit traffic generates large financial profits and wealth enabling
transitional criminal organizations to penetrate, contaminate
and corrupt the structures of Government, legitimate
commercial and financial business and society at all its levels.
 Crimes of Drug Trafficking
 Convention against the Illicit Traffic in Narcotic Drugs
and Psychotropic Substances, 1988

The need of the Convention:

 Eradication of illicit traffic is the collective responsibility of all
the states and the coordinated action within the framework of
International cooperation is necessary for the purpose.
 There was a need to reinforce and supplement the
measures provided in the Single Convention on Narcotics
Drugs, 1961 and the 1971 Convention on Psychotropic
Substances, in order to counter the magnitude and extent of
illicit traffic and its grave consequences.
 Crimes of Drug Trafficking
 Elements of crimes
 Prohibited acts:

 Production and refinement: Illicit manufacture, extraction

and preparation

 Dispatch, transportation, import and export of drugs

 Distribution

 Possession and purchase for supply

 Support and organization of supply

 Crimes of Drug Trafficking

 Objects of crimes:
 Narcotic drugs
 Psychotropic substances
 Precursors
 Mental element: intent
 Crimes of Drug Trafficking
 Punishment for offences:

 The 1961 Convention on Narcotics Drugs:

“adequate punishment particularly by imprisonment or

other penalties of deprivation of liberty” [Art.36(1)]

 The 1971 Convention on Psychotropic Substances:

adopts such dual punishment regime

 The 1988 Convention Against Illicit Traffic of Narcotic

Drug and Psychotropic Substances:

adopts more severe regime of penalties, including

‘pecuniary sanctions’ and ‘confiscation’
Crimes of International terrorism
 Crimes of Terrorism
 The global treaties against terrorism offences
 The 1963 Convention on Offences and Certain Other Acts Committed on
Board Aircraft
 The 1970 Convention for Suppression of Unlawful Seizure of Aircraft
 The 1971 Convention for the Suppression of Unlawful Acts against the
Safety of Civil Aviation
 The 1973 Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, including Diplomatic Agents
 The 1979 International Convention against the Taking of Hostages
 The 1997 International Convention for the Suppression of Terrorist
Bombings
 The 1999 International Convention for the Suppression of the Financing
of Terrorism
 The 2005 International Convention for the Suppression of Acts of Nuclear
Terrorism
 Crimes of Terrorism
 The concept of terrorism
 No agreed definition of terrorism for the purpose
of a global prohibition of terrorist acts in a legally
binding instrument
 Security Council Resolution 1566 (2004) has a
description of terrorism: covers only acts included
in the global Conventions, specifying ‘the purpose
to provoke a state of terror…to intimidate a
population or compel a government or an
international organization to do or to abstain from
doing any act.’
 Crimes of Terrorism
 The concept of terrorism
 International relevant conventions avoid to
define and classify terrorism as political
offences in order to circumvent the political
offence exception to extradition
 A common notion of the concept: A range of
acts of violence or the acts of similar nature
undertaken by non-state actors against civilian
targets to create a state of terror in the minds
of particular persons, or a group of persons or
the general public.
 Definitions of Terrorism by
some agencies
• “The unlawful use of force or violence
against person or property to intimidate or
FBI coerce the government, the civilian
population, or any segment thereof, in
furtherance of political or social
objectives.”

• Calculated use of unlawful violence or

US threat of unlawful violence to inculcate
Army fear. It is intended to coerce or intimidate
governments or societies…to attain
Manual political, religious, or ideological goals
 Crimes of Terrorism
 The transnational aspects of terrorism
 Acts occur primarily outside the territorial jurisdiction of
a state;
 Acts transcend national boundaries in terms of the means
by which they are accomplished;
 Acts transcend national boundaries in terms of the
perpetrators;
 Acts transcend national boundaries in terms of the
territory in which the perpetrators operate or seek
asylum.
 The transnational aspects of terrorism engage
international concern
 Crimes of Terrorism
 Types of terrorism
 Aviation offences
 Offences against maritime safety
 Acts against internationally protected persons
 Taking of hostages
 Terrorist bombings
 Nuclear terrorism
 Bio terrorism
 Cyber terrorism
 Terrorist financing
 Crimes of Terrorism

 The prohibited acts:

The draft comprehensive Convention lists the
underlying acts of:
 Causing death or serious personal injury;
 Causing serious damage to property, including
public transport or the environment;
 Causing (lesser) damage to property or systems
which results in major economic loss.
 Crimes of Terrorism

 The actors/offenders:
 Individuals
 Terrorist organizations
 Crimes of Terrorism

 The mental element of terrorism

 Intent to commit the acts
 Special intent to cause terror in the victims
 Motive of advancing a political, religious, racial, or
ideological cause
 Crimes of Terrorism

 The punishment of terrorism

 Available penalties must be appropriate taking
into account the grave nature of the crimes
 Crime of Money Laundering

 The global legal instruments on anti-money

laundering
 The 1988 UN Convention against the Illicit Traffic in
Narcotic Drugs and Psychotropic Substances
 The 2003 UN Convention against Corruption
 The 2000 UN Convention against Transnational
Organized Crime
 The FATF’s Recommendations…
 Crime of Money Laundering
 The nature of money laundering
 Crime committed after the commission of another
crime to make illegal benefits/money obtained by the
previous crime to be legal
 Act legitimates criminal proceeds
 Criminal proceeds: the proceeds of a previous and
distinct offence

 A special kind of ancillary/derivative offence:

committed after and dealt with the illegal proceeds of
the predicate offence
 Separate/independent offence
 Crime of Money Laundering

 The predicate offence

 The offences produce illegal money/financial benefits
 The trend of expansion of the range of predicate
offences in transnational criminal law
 The 1990 Council of Europe Convention on Laundering,
Search, Seizure and Confiscation of the Proceeds of
Crime extends predicate offence to any criminal
offence
 The FATF recommends extension of money laundering
to the ‘widest range’ of predicate offences
(Recommendation 3)
 Crime of Money Laundering

 The predicate offence

 Approaches to the determination of the
scope of predicate offences:
 Threshold punishment approach
 List approach
 Category of serious offences approach
 Crime of Money Laundering

 The predicate offence

 The offences produce illegal money/financial benefits
 The trend of expansion of the range of predicate offences in
transnational criminal law
 Not necessary to be convicted for being base for the
conviction of money laundering offence
 Crime of Money Laundering

 The actors/offenders
 Legal entities: Financial institutions and particular banks
 State may provide a legal haven for launderers benefit from
licensing of shell banks
 Individuals: Lawyers, financial advisors, stockbrokers,
insurance agents, real estate agents, accountants,…
 Crime of Money Laundering

 Objective elements
 Prohibited acts
 Evidence of predicate offence
 Crime of Money Laundering

 Mental elements
 Fault: Knowledge, Intent
 Purpose/motive
 Questions for discussion
Crimes of human trafficking
 Is a crime of human trafficking considered transnational only
when it is committed in more than one state?
 Does the UN Convention against Transnational Organized
Crime (UNTOC) in 2000 establish a definition of trafficking in
persons?
 Does the Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children
(supplementing the UNTOC) establish a definition of
trafficking in persons?
 Is threat to use of force one of the means of human trafficking
crime?
 Is exploitation of forced labour one of the purposes of human
trafficking crime?
 Is ownership of the trafficked persons the goal of the crimes
of human trafficking?
 Questions for discussion

Crimes of human trafficking

 What are the elements of human trafficking
crimes?
 Identify transnational features of human
trafficking crimes in the provided cases.
 Discuss on the purposes of human trafficking
crimes in such cases.
 Discuss on the victims of human trafficking
crimes in such cases.
 Questions for discussion

Crimes of drug trafficking

 Is a crime of drug trafficking considered transnational
only when it is committed in one state but a substantial
part of its preparation, planning, direction, or control
takes place in another state?
 Is the 1988 Convention against the Illicit Traffic in
Narcotic Drugs and Psychotropic Substances
considered the comprehensive global treaty dealing
with drugs-related crimes?
 Prove that the 1988 Convention against the Illicit Traffic
in Narcotic Drugs and Psychotropic Substances
criminalizes activities of a chain of drugs supply.
 Why do the three major UN drugs Conventions call for
the severe punisments for drugs-related crimes?
 Questions for discussion

Crimes of drug trafficking

 What are the elements of drug trafficking
crimes?
 Identify transnational features of drug
trafficking crimes in the provided cases.
 Discuss on the perpetrators of drug trafficking
crimes in such cases.
 Discuss on the methods of committing crimes
in such cases
 Questions for discussion

Crimes of transnational terrorism

 Is a crime of terrorism considered transnational
only when it is committed in one state but has
substantial effects in another state?
 Is there a comprehensive Convention on anti-
terrorism?
 Are there many international and regional treaties
tackling with terrorism?
 Is there an agreed definition of terrorism?
 What is the most difference between “old” and
“new” forms of terrorism?
 Questions for discussion

Crimes of terrorism
 What are the elements of crime of terrorism?
 What are the differences between terrorism
and crimes against humanity?
 Identify transnational features of crimes of
terrorism in the provided cases.
 Discuss on the purpose of crimes of terrorism
in such cases.
 Discuss on the victims of crimes of terrorism in
such cases.
 Questions for discussion

Crimes of money laundering

 What are the elements of crime of money
laundering?
 Can money laundering be constituted without
the predicate offence?
 Identify transnational features of crime of
money laundering in the provided cases.
 Discuss on different approaches to setting up
predicate offences of money laundering crime.