Organized crime and gang violence can be found in both poor and rich countries. They often pose serious problems, particularly in urban areas, to the state and to society.Footnote 1 Various national and international laws have consequently been enacted to combat organized crime as well as gangs and their violence more effectively. Due to the gangs' highly dynamic and heterogeneous nature, dealing with them in legal terms has proved to be a challenging and even delicate task. Although it seems more appropriate to distinguish between organized crime and gangs and their violence, such a distinction is often difficult to draw. Legislators have therefore opted for different approaches. The present article analyses the steps taken so far at the national and international level, against the background of the respective practical and theoretical challenges.
Organized crime, gangs, and gang violence as analytical concepts
The study of organized crime, gangs, and gang violence belongs to the domain of criminal science, especially criminology.Footnote 2 It is through this interdisciplinary lens that the challenges posed by them to state and society are primarily comprehended.Footnote 3 Analysis of the difficulties in adequately addressing these phenomena in legal terms therefore presupposes some knowledge of how far they have evolved as analytical concepts.
Organized crime
Numerous national and international instruments, in particular the United Nations Convention against Transnational Organized Crime (UNCTOC),Footnote 4 indicate that ‘(transnational) organized crime’ has become a legal concept.Footnote 5 Whether this is the case or not is, however, of minor practical relevance. For the purposes of the present article it is important to understand why the definition of ‘organized crime’ is the object of continuing controversy and what this means for law-making and enforcement.
Definitional problems
‘Organized crime’ is a very pithy term that has become part of the vocabulary of many politicians and the broader public as well. It is often applied without a clear reference point and is, in fact, highly indeterminate and vague.Footnote 6 This lack of clarity also affects the relevant academic debate.
On the one hand, the term can be used to refer to certain types of more sophisticated criminal activities embedded, in one form or another, in complex illicit markets. Arms, drug, and human trafficking are often correlated with a set of ‘enabling activities’ such as (the threat of) violence, corruption, and money laundering.Footnote 7 One group of authors assumes that the former constitute core activities of organized crime;Footnote 8 another refers to the latter.Footnote 9 In both cases the offences can usually be categorized as ‘serious crimes’. It may be more accurate to use the term ‘organized criminality’.
One problem of this approach is that it is merely based on indicator criminality. Violence against persons, for instance, may be an important means for and characteristic of some illegal activities, but not necessarily.Footnote 10 Furthermore, there exist numerous illicit markets, ranging from trade in contraband cigarettes and stolen cars to extortion of multinational corporations, gambling, prostitution, and so forth.Footnote 11 Yet, as the example of prostitution shows, it is not possible to state in general terms that those engaged in the respective activities are involved in organized criminality. One may consequently find that ‘a simple listing of crimes does not tell us much about organized crime’.Footnote 12 Hence, an alternative approach puts organized crime on a level with ‘professional crime’,Footnote 13 confining – and thus diminishing – the inalienable breadth that any definitional concept of organized crime has to have.
On the other hand, ‘organized crime’ may be used in the sense of criminal organizationsFootnote 14 such as the Colombian and Mexican ‘drug cartels’, the Japanese ‘yakuza’, the Chinese ‘triads’, or the Italian and US ‘mafia’.Footnote 15 However, as complex and different as the illicit markets are the defining characteristics of the groups that supply them. They vary from small, loosely connected networks, comprising a handful of persons, to large, hierarchical organizations.Footnote 16 Not all of them, whether small or not, highly organized or rather disorganized, use secret codes, skilled personnel (such as economists, lawyers, or technicians), or behave like legal enterprises.
It is therefore very difficult to reach a consensus on the appropriate use and meaning of the term ‘organized crime’.Footnote 17 Suggestions have been made that this concept, suspected of being a vehicle for ideologically motivated repression of individuals and social groups, an ‘enemy’ artificially created but ill-defined, should be abandoned.Footnote 18 This, however, has not happened.
Analytical and practical consequences
There are good reasons to deem a definition of organized crime desirable and necessary. One is that the repression of organized crime often implies law measures that may conflict with fundamental guarantees such as the right to privacy or the freedom of communication. Without a definition that steers its correct application, activities and groups of individuals that in fact do not represent organized crime, and consequently pose no serious threats to public security, might be affected and criminalized. Furthermore, defining ‘organized crime’ facilitates the work of the law-enforcement institutions by giving it a clearer focus and therefore tends to increase its effectiveness, avoiding the waste of human and financial resources.
Obviously the dilemma is that, if ‘organized crime’ is defined too broadly, the steps taken may be ineffective or incompatible with the rules and principles of the constitutional state, and might even become abusive. However, if ‘organized crime’ is defined too narrowly, important developments and events that could have been prevented may be left out of range.
Another question that has practical implications for legislators is which of the two basic options described above is more appropriate. The focus on illegal activities is clearly favoured by the fact that modern criminal law does not punish individuals for what they are (e.g. members of a criminal organization) but for what they do (e.g. application of violence). Using ‘indicator activities’ may also be helpful in detecting ‘organized crime’ as clandestine criminality that only becomes evident upon further investigation. Yet the existence of criminal organizations is also a fact. Even if the desirability of their criminalization is questioned, it is at least important to observe and, if possible, to deter and destroy such groups.
In view of these considerations, it is entirely understandable that legislators have gone in quite different directions when dealing with organized crime, and why finding a common denominator is so difficult. While it cannot be ignored that specific political and institutional interests underlie the various initiatives to fight what is deemed to be ‘organized crime’, there can ultimately be no doubt of the existence of phenomena of collective criminality that can have devastating effects on state and society, impeding the rule of law, sustainable development, and, in particular, human security.Footnote 19 In extreme cases, organized criminal groups dominate entire social segments, such as the hundreds of thousands of inhabitants of Rio de Janeiro's shanty towns.Footnote 20
Gangs and gang violence
An alternative approach, which may be seen as a compromise with regard to the aforesaid risks and challenges, is to draw a line between ‘organized crime’ and less professional and less sophisticated criminal collectives. The situation in Rio de Janeiro is a good illustration of the need to distinguish between ‘organized crime’ and gangs and gang violence, and of the problems involved in doing so.
In Rio de Janeiro, urban violence results in far more than one thousand homicides per year.Footnote 21 Adolescents and young men toting machine guns and grenades who patrol through the city's shanty towns have become symbolic of this complex situation.Footnote 22 They are systematically used by drug lords, who pay them (well) for defending their territory against the state and rival groups.Footnote 23 The drug lords are embedded in larger but only loosely connected criminal organizations that have emerged from prison gangs.Footnote 24 As drug dealers in the streets of the shanty towns, the many so-called ‘foot-soldiers’ are not directly engaged in the ‘big business’ of the local criminal networks that order and purchase tons of drugs and thousands of weapons, manipulate corrupt officials, and maintain contact with other criminal organizations. It therefore seems appropriate to qualify the groups of adolescents and young men as gangs whose violence may be attributed to the respective criminal organization,Footnote 25 while not placing them on an equal footing with it and treating them accordingly.
Many efforts have been made to distinguish gangs and their delinquency from more (and less) severe forms of collective criminality. Studies have shown that the formation of youth gangs is primarily a result of ‘street socialization’ and social exclusion: their members often share the same bleak situation of unemployment and lack of prospects. Gangs and their specific ‘culture’, sometimes consisting of rituals, symbols, and the like, seem to impart a sense of identity, status, and solidarity,Footnote 26 which the use of violence and ‘turf wars’ (the defence of territory) often serve to strengthen. It can be said that gang violence is mainly of a tactical nature to achieve short-term goals, whereas criminal organizations use violence more strategically to consolidate long-term goals.Footnote 27 Many authors therefore stress that gangs are less sophisticated and are not true market players: they do not exist to provide regular goods or services professionally, but commit less well-organized and well-planned crimes without any clearly defined purpose.Footnote 28
In practice, however, the dividing line between gangs and organized crime often becomes blurred. Again, the dynamics and heterogeneity of the phenomena in question must be borne in mind. Criminal organizations often emerge out of gangs (and hence continue to use their names and symbols) and may also recruit members of street gangs to spread violence or provide other services.Footnote 29 Indeed, there are well-structured gangs that represent quite permanent associations and professionally commit serious and even transnational crimes.Footnote 30
It might therefore be argued that the distinction between organized crime, gangs, and gang violence is artificial and of little use. Whether and to what extent such a view can be justified ultimately depends on the definitions applied.Footnote 31 However, as we have seen, there is no satisfactory definition and consequently no consensus in that regard.Footnote 32
Organized crime and gang violence in national (criminal) law
Against this background, national legislators have taken different approaches to deal with organized crime on the one hand, and with gangs and gang violence on the other.
‘Organized crime’ has only rarely become a legal term of art in national legislation. One example is the Indian ‘Maharashtra Control of Organised Crime Act’ of 1999. It defines organized crime as
any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency.Footnote 33
This definition is evidently very broad and covers phenomena, such as insurgency, that the majority of academics would presumably exclude from the term ‘organized crime’. India, however, is not unique in this respect. Mexico, for instance, has only recently opted to criminalize ‘organized delinquency’Footnote 34 and the definition of that term explicitly includes terrorism.Footnote 35
Other states have opted for a more differentiated approach. One example is Austria. Instead of criminalizing ‘organized crime’, Austria's Penal Code criminalizes the formation of a ‘criminal organization’ (kriminelle Organisation),Footnote 36 and the former offence of ‘formation of a gang’ (Bandenbildung) has now become the offence of forming a ‘criminal association’ (kriminelle Vereinigung), with its own separate section under the heading of Chapter 28 (‘Criminal conduct against the public peace’).Footnote 37 A ‘criminal organization’ is qualified as being businesslike and consisting of a larger number of persons. Other provisions also penalize the foundation of and participation in a ‘terrorist organization’ and ‘armed associations’.Footnote 38
Apart from that quite exceptionally wide-ranging legislation, most countries in the European Union, for instance Germany, tend to punish participation in ‘criminal’ and ‘terrorist associations’ only.Footnote 39 Those offences, which do literally require some sort of personal set-up, significantly used to be called ‘organization offences’ (Organisationsdelikte). Furthermore, as is typical of both civil and common law jurisdictions, the German Penal Code considers an aggravation of rather ubiquitous everyday crimes such as theft, robbery, or bodily harm to be attributable to group and gang conduct. Hence, conduct by somewhat ‘organized’ groups may easily rate as an aggravated case of serious theft or serious robbery committed by a gang (Bandendiebstahl/Bandenraub)Footnote 40 and of dangerous bodily harm committed jointly.Footnote 41 These offences ‘qualify’ (qualifizieren) the underlying basic offence for a higher level of sentencing, which is why their existence mainly belongs to the domain of sentencing. When it finally comes to sentencing, offenders operating in groups or gangs often receive a more severe sentence, in common law countries too,Footnote 42 because such conduct is deemed to involve greater harm, greater fear, a greater sense of helplessness, and uncontrollable group dynamics.
Other states largely follow this doctrinal approach, though without clearly distinguishing between the formation of gangs and that of criminal associations or organizations. For example, Brazil's Penal Code criminalizes the association of ‘quadrilhas e bandos’.Footnote 43 Special legislation designed to combat organized crime also exists.Footnote 44 It does not, however, define or delimit this term in relation to the aforesaid phenomena.Footnote 45 In the United States of America, states such as California punish active participation in ‘criminal street gangs’, described as
any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity,Footnote 46
when this membership is followed by an act of promotion of, furthering, or assistance in any felonious criminal conduct by members of that gang.
Another way to take in gang or organized group conduct is by referring to general principles of criminal law, particularly as regards the inchoate offence of conspiracy in common law jurisdictions and – its equivalent in civil law countries – attempted participation.
In common law countries such as England, both group and organized deviance often fulfils the requirements for the inchoate offence of conspiracy.Footnote 47 This crime consists of an agreement between two or more persons to commit a criminal offence and more precisely exists
if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either (a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or (b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible.Footnote 48
Of course, this approach entails another, different concept that indeed ‘may be defended as a vital tool against organized crime’.Footnote 49 However, as ‘preliminary crimes’, inchoate offences incur the punishment of conduct prior to any harm being inflicted.Footnote 50 On that basis, the scope of criminal liability is extended to activities that normally constitute a much less serious nuisance but show a mere intention that is to be prevented.Footnote 51 There are, however, states such as Japan that have no conspiracy law, nor have they criminalized participation in an organized criminal group.Footnote 52
A further characteristic of national jurisdictions is to deal with gang violence in particular as a criminal offence affecting public order. As ‘violent disorder’ (e.g. in England and Wales under the Public Order Act 1986), gang violence requires the use or threat of violence by three or more people in a way that would cause a person of reasonable firmness present at the scene to fear for his personal safety.Footnote 53 Here, in contrast to the offence of conspiracy, harm already exists in the form of actual violence or the threat thereof, but in this case, too, there are limitations to the criminalization of gang violence: the conduct has to affect the public in some way and, as long as fewer than three persons engage in it, the offence is not given.Footnote 54 Interestingly, English courts tend to impose heavier sentences whenever there is evidence of ‘organization’. Civil law jurisdictions often arrive at the same result by statutory provisions aggravating the sentence for group or gang conduct.Footnote 55
In essence, none of these offences criminalizes conduct that actually harms legally protected interests of an individual (they do not criminalize violence, damage to property, etc.), but founding those organizations as such is held to endanger public order in an abstract manner.
To sum up, many national laws differ substantially with regard to the treatment of organized crime, gangs, and gang violence. There are highly differentiated and less differentiated approaches to criminalization. Sometimes, as in the case of Japan, there are still no specific laws designed to combat organized crime. Most of the concepts presented seem to provide an understanding of organized crime broad enough to cover all the facets of gang violence. Conversely, no single national jurisdiction would include gang violence as such as an organized crime, because gang violence in itself simply lacks too many elements required by the prevalent understanding of organized crime. Thus organized crime and gang violence share an intersection or interface but are not congruent phenomena in national legislation.
Organized crime and gang violence in public international law
Organized crime and gang violence has increasingly become subject to international regulation. Particularly after the cold war, states became more and more aware of the transnational dimensions of organized crime as a side-effect of globalization.Footnote 56 They therefore adopted an international framework to repress ‘organized criminal groups’ and their most harmful activities. The following analysis will begin by explaining the evolution and significance of the legal regime.
International humanitarian law (IHL) and international criminal law both address violence by ‘organized armed groups’. This raises the question whether armed criminal groups may become party to an armed conflict and, if so, under which specific preconditions. Their qualification as an ‘organized armed group’ would then allow for their members to be held responsible for international crimes.
International framework to combat organized crime
Co-operation in criminal matters is a very sensitive issue. Its effectiveness often depends on the confidential exchange of information and a common interest in the success of a particular operation. During the cold war, such mutual confidence was rather limited in the community of states. Organized crime was moreover perceived as being primarily a domestic problem. Yet the lack of common interests and mutual confidence, and the slowly developing awareness of the transnational dimensions of organized crime, explain only in part why states have been reluctant to establish a legally binding multilateral framework designed to encourage and promote international co-operation for the suppression of organized crime.Footnote 57 As transnational offendingFootnote 58 – truly a catch-all term understood to mean deviant behaviour at a level of criminality that by its very nature necessarily involves either transcending state borders, violating the laws of several states, or evading a state's jurisdiction by not being attributable to a certain state territoryFootnote 59 – many forms of organized crime have tended to be subject to so-called suppression treaties, that is, multilateral agreements between state parties in order to fight deviance effectively from an international perspective.
A glance a little further back in history shows that states themselves have often tried to profit from markets that later become illegal and are therefore now supplied by criminal organizations. This holds especially true for drug and human trafficking, which are today considered to be the world's most harmful and most lucrative illegal activities.Footnote 60
Human trafficking is essentially a modern form of slave trade that involves practices such as sexual exploitation, forced labour, slavery, and similar practices.Footnote 61 Mainly for economic reasons, governments hesitated until the nineteenth century to recognize in their constitutional instruments the fundamental right of every person not to be held in slavery or servitude and not to be traded as a commodity.Footnote 62 In the United States, a civil war (1861–1865) was fought to enable this basic human right to prevail over the economically driven interests of the South. In other states, for instance Brazil, its recognition came about peacefully, but even later.Footnote 63 It was not until after the Second World War that it was universally recognizedFootnote 64 and subsequently became customary international law with the status of jus cogens, from which obligations erga omnes derive. Footnote 65 European states had adopted the Declaration on the Abolition of the Slave Trade in 1815,Footnote 66 yet it took more than a hundred years to reach an international consensus on a relatively narrow definition of slavery, slavery-like institutions and practices, and the slave trade.Footnote 67 Telling documents addressing shameful issues, such as the 1904 International Agreement for the Suppression of the White Slave Traffic,Footnote 68 mark this historic struggle. While slavery, slave-related practices, and forced labour became recognized as international crimes before the adoption of the 1988 Rome Statute of the International Criminal Court (ICC),Footnote 69 it was not until the year 2000 that states adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime.Footnote 70
Great Britain fought the Opium Wars (1839–1842, 1856–1860) to force China to accept free trade in that drug and to open its domestic market. The process of international repression of drugs only started in 1909 with the Shanghai Opium Conference.Footnote 71 It led to the first international anti-drug treaty, the 1912 International Opium Convention,Footnote 72 which related to the trade in cocaine and heroin and distinguished between legal and illegal drugs.Footnote 73 Various other anti-drug instruments have been adopted since then, successively criminalizing all kinds of drugs, their production, trading, and consumption.Footnote 74 In Article 2 of the 1936 Convention for the Suppression of the Illicit Traffic in Dangerous Drugs,Footnote 75 states parties were enjoined ‘to make the necessary legislative provisions for severely punishing’ acts such as ‘possession, offering (for sale), distribution, purchase, sale, delivery …, brokerage, despatch (in transit), transport, importation, and exportation of narcotic drugs’. In addition, the aut dedere aut judicare principle was included (Articles 7, 8, and 9(1–3)), with an exception for ‘not sufficiently serious’ crimes (Article 9(4)).Footnote 76 As the power, influence and transnationality of criminal groups involved in these markets became more evident in the 1980s, the international efforts to combat them culminated in the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,Footnote 77 which today enjoys quasi-universal character.Footnote 78 Again, however, it only covers one specific illegal market and does not address organized crime in a more comprehensive way.
These treaties have mainly focused on international consent and co-operation, rather than on establishing international or even universal jurisdiction over the crimes concerned. It is therefore safe to say that group or organized criminal conduct might indeed be regulated by them. The criminalization of those crimes, however, rests with national jurisdictions, not with supranational authorities, and it is hard to link the notion of transnational offending to gang violence and organized crime whenever the deviance does not cross borders.
The United Nations Convention against Transnational Organized Crime
In view of these antecedents, the United Nations Convention against Transnational Organized Crime (UNCTOC), adopted in Palermo, Italy, on 15 December 2000, marks a major breakthrough, as the following brief outline of its content and significance shows.Footnote 79
The declared purpose of the Convention is ‘to promote cooperation to prevent and combat transnational organized crime’.Footnote 80 Since the effectiveness of such co-operation depends on the applicability of common legal standards, the Convention obliges states parties to criminalize participation in an organized criminal group, corruption,Footnote 81 the laundering of the proceeds of crime (money laundering),Footnote 82 and the obstruction of justice.Footnote 83 It thus focuses on the ‘enabling’ or ‘secondary activities’ that are characteristic of organized crime. The ‘primary activities’ have been separated from the core instrument and are dealt with by the three Protocols thereto. This approach facilitated finding a consensus and increases the Palermo Convention's chance of gaining universal acceptance. Indeed, it already has 147 states parties.Footnote 84 Moreover, the decision to deal with the ‘primary activities’ in autonomous international treaties allows for the adoption of further protocols dedicated to specific aspects that are not covered by the existing instruments. It also facilitates its revision and amendment.
The Convention against Transnational Organized Crime does not lay down a legal definition of (transnational) organized crime. As we have seen, a consensus to that effect would have been impossible to reach, and the desirability of such a definition may be questionable in light of the dynamics, explained above, of the phenomena.Footnote 85 However, the Convention does specify the use of some basic termsFootnote 86 in order to give states some necessary guidance for its implementation in national law. Article 2 contains meaningful explanations with regard to the duty to criminalize participation in an ‘organized criminal group’ (Article 5). It stipulates that:
For the purposes of the Convention:
a) ‘Organized criminal group’ shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit.
b) ‘Serious crime’ shall mean conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty.
c) ‘Structured group’ shall mean a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure…
These definitions are subject to criticism for being over-inclusive and vague.Footnote 87 While this point is relatively easy to make, it must not be overlooked that the consensus reached is nonetheless a remarkable achievement. Since it is the result of difficult multilateral negotiations, it at least represents a quasi-universal common denominator.Footnote 88
The definition recognizes that criminal associations do not always have a hierarchical structure comparable to real enterprises, but often function as networks consisting of a few loosely connected members.Footnote 89 Nonetheless, there has to exist a ‘Structured group … that is not randomly formed for the immediate commission of an offence’. This means that more spontaneous forms of collective criminality are excluded from it. This is an important limitation that may help to draw a line between organized crime and gang criminality.
Furthermore, the subjective element (‘in order to obtain, directly or indirectly, a financial or other material benefit’) confirms the dominant view that organized crime is not driven by political motives but is primarily out to make a profit. Groups such as terrorists and insurgents are therefore not covered by the scope of application of the Convention against Transnational Organized Crime.Footnote 90 This protects the Convention from being overly politicized. Whether such an important consensus could have been achieved after the 11 September 2001 terrorist attack on the United States and the US-proclaimed ‘merger of terrorism and organized crime’ is doubtful.Footnote 91
Admittedly, the reference to the commitment of ‘serious crimes’ gives states considerable latitude in deciding whether to criminalize a specific form of conduct as being constitutive of an organized criminal group.Footnote 92 The more explicit mention in Article 2(b) that serious crimes would be those ‘punishable by a maximum deprivation of liberty of at least four years or a more serious penalty’ still allows for a very broad interpretation of the term. Yet it is difficult to imagine an alternative solution that would have met with the approval of states. In the final analysis, it is their responsibility to implement the Palermo Convention in good faith in accordance with their national particularities and in conformity with the rule of law and other international obligations.Footnote 93
As the purpose of the Convention against Organized Transnational Crime is to promote co-operation in police and judicial matters, the majority of its forty-one articles specify how this is to be achieved. Among other things, it deals with international co-operation for purposes of confiscation of proceeds of crime, extradition and transfer of criminals, mutual legal assistance, and joint investigations.Footnote 94 In addition, it addresses the protection of witnesses and victims, data collection and exchange, training and technical assistance, and special investigative techniques.Footnote 95 A special provision is devoted to the prevention of organized crime.Footnote 96 As an abstract definition of such measures is hardly possible, these norms are primarily meant to guide the states parties in their efforts to implement the Convention. Such efforts by states are, however, obligatory.Footnote 97
A crucial point for all international treaties is the existence of a mechanism that promotes and reviews the respective treaty's effective implementation. The Palermo Convention delegates this task to the Conference of the Parties to UNCTOC,Footnote 98 which is assisted by a Secretariat.Footnote 99 So far, the Conference has not set up such a mechanism.Footnote 100 A recent evaluation shows, however, that the Convention is being increasingly applied by states as a legal basis for international co-operation, in particular with regard to extradition, mutual legal assistance, and confiscation of proceeds of crime.Footnote 101 Yet many states parties still have not fully implemented the Convention.Footnote 102 In this respect, important assistance is offered by the United Nations Office for Drugs and Crime (UNODC).Footnote 103
All in all, it can be said that the United Nations Convention against Transnational Organized Crime is the most important and comprehensive international instrument to combat organized crime.Footnote 104 As it obliges states to establish the aforesaid offences ‘independently of the transnational nature or the involvement of an organized criminal group’,Footnote 105 its impact goes beyond improving and promoting international co-operation against transnational organized crimeFootnote 106 and thus helps to create ‘a common language in the fight against organized crime’ in general.Footnote 107
The Protocols to the Palermo Convention
The three Protocols supplementing UNCTOC and dealing with specific ‘primary activities’ are as follows: the aforesaid Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Trafficking Protocol);Footnote 108 the Protocol against the Smuggling of Migrants by Land, Sea, and Air (Migrant Smuggling Protocol);Footnote 109 and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and AmmunitionFootnote 110 (Firearms Protocol).
The Firearms Protocol is intended to play an important part in reducing the violence and harm resulting from firearms illegally produced and supplied by organized criminal groups.Footnote 111 As we have seen above, urban areas in particular are often plagued by firearms-related gang violence. Ultimately, there can be no doubt that an international mechanism for the record-keeping, marking, and tracing of arms that promotes their deactivation and creates a licensing and authorization system for their import, transit, and exportFootnote 112 is indispensable to avert or de-escalate a number of violent situations, armed conflicts included. However, the Firearms Protocol itself proved very difficult to negotiate. It was therefore not adopted until 2001 and only seventy-nine states have ratified it to date;Footnote 113 these do not include the most relevant arms-producing countries.Footnote 114 Regional instruments and initiatives try to compensate for that deficit,Footnote 115 but the firearms business is global. As with the fight against drug and human trafficking, the reluctance of states is once again largely due to economic considerations.Footnote 116
More successful in terms of acceptance by states are the Trafficking and Migrant Smuggling Protocols. The former contains a very broad definition of its subject matter:
‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs …Footnote 117
In contrast, the latter states that:
‘Smuggling of migrants’ shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident…Footnote 118
The reason for this distinction seems to be the intention to deal under different premises with the criminal organizations involved. States are of the opinion that, because smuggled migrants agree with that illicit activity, they deserve less protection.Footnote 119 In practice, however, many persons who pay criminal groups to be smuggled, often in inhumane conditions, are handed over to other criminal organizations for purposes of exploitation, in particular sexual.Footnote 120 Despite this critique it can be said that both instruments, which are supplemented by a number of international and especially regional instruments,Footnote 121 set up a specific framework for co-operation. To date, 137 states have ratified the Trafficking Protocol and 123 the Migrant Smuggling Protocol.Footnote 122 Since these treaties are less accepted than the mother convention, they share the latter's shortcomings in terms of implementation. However, it might still be too early to evaluate their success. As we have seen, the fact that a general framework has been adopted to combat organized crime is in itself remarkable.
The impact of the treaty on European Union law
Within the European Union in particular, member states are already obliged to approximate their national laws in order to fight organized crime, by virtue of European Union law (see Articles 83(1) and 87(2)(c) of the Treaty on the Functioning of the European Union).Footnote 123 Thus supranational demands outside general public international law are superimposed on national law even in terms of defining ‘organized crime’. According to the so-called working definition of the EU being used in many reports and documents:
In order to speak about organised crime at least six of the following characteristics need to be present, four of which must be those numbered 1, 3, 5 and 11:
1. Collaboration of more than 2 people;
2. Each with own appointed tasks;
3. For a prolonged or indefinite period of time (refers to the stability and (potential) durability);
4. Using some form of discipline and control;
5. Suspected of the commission of serious criminal offences;
6. Operating at an international level;
7. Using violence or other means suitable for intimidation;
8. Using commercial or businesslike structures;
9. Engaged in money laundering;
10. Exerting influence on politics, the media, public administration, judicial authorities or the economy;
11. Determined by the pursuit of profit and/or power.Footnote 124
Moreover, the Council Framework Decision of 24 October 2008 on the ‘Fight against Organised Crime’ recently defined a ‘criminal organisation’ as being:
a structured association [i.e. not randomly formed for the immediate commission of an offence, nor does it need to have formally defined roles for its members, continuity of its membership, or a developed structure], established over a period of time, of more than two persons acting in concert with a view to committing offences which are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a more serious penalty, to obtain, directly or indirectly, a financial or other material benefit.Footnote 125
Regarding the implementation of these European specifications, it has already been pointed out above that, interestingly, like Germany, most European Union countries do not refer to the term ‘organized crime’ in their legislation at all, but intend to deal with the underlying criminal conduct indirectly by using various legal measures to punish behaviour that typically accompanies organized crime.
International law and the use of force
The terrorist attacks of 9/11 have provoked an intense debate about non-state entities and international law governing the use of force. In this particular context, little attention has been paid to the role and significance of organized crime and gang violence as potential immediate threats to international peace and security. However, it is by no way excluded that powerful drug barons and arms traffickers are capable of launching similar attacks, for example in order to blackmail governments. While it certainly is an adequate approach to consider merely the individual attacks and to qualify them, under certain conditions, as terrorism, another question is whether the groups behind it can therefore be classified as terrorist organizations.Footnote 126 It may be recalled that the death of 107 passengers of the Avianca Airlines Flight 203 of 27 November 1989 was due to a bomb for which the Medellin Cartel, at that time headed by Pablo Escobar-Gavira, assumed responsibility.Footnote 127 It should, moreover, be noted that Rio de Janeiro's most famous drug trafficker, ‘Fernandinho Beira-Mar’ (Luiz Fernando da Costa), whose detention in Colombia in April 2001 was even commented on by the US Secretary of State, Colin Powell, is supposed to have tried to purchase a Stinger missile.Footnote 128 Also in Rio de Janeiro, members of the city's drug factions shot down a military police helicopter as recently as October 2009.Footnote 129
Article 2(4) of the UN CharterFootnote 130 prohibits ‘the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’. Since it is customary international lawFootnote 131 and has the status of jus cogens,Footnote 132 its content is binding for all entities with international legal personality. However, the proposal by some writers that Al Qaeda be recognized as a (passive) subject of international law, in order to justify self-defence against its attacks on foreign territory,Footnote 133 has gained little support in legal literature. Agreement with this assumption would raise the question whether the prohibition of the use of force is also binding for certain criminal organizations comparable to Al Qaeda. The dominant doctrine is that acts of criminal and terrorist organizations need to be attributable to a state or other recognized subject of international law and that terrorists have no such status.Footnote 134 In the Friendly Relations Declaration (Resolution 2625 (XXV) of 24 October 1970), the UN General Assembly stated that: ‘Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State’. The term ‘armed bands’ can be interpreted as also including criminal organizations and even gangs. The resolution was applied by the International Court of Justice in the Nicaragua case, in which it declared that financial support for armed bands – in the case in point, rebels – was sufficient to attribute their violence to a state.Footnote 135
Whether and to what extent states sponsor (clandestinely) criminal collectives that are not driven by an ideology is difficult to answer. The rule is that democratically elected governments try to fight these groups. Sometimes, as the so-called ‘war on drugs’ shows, they even use military means to arrest criminals or destroy their infrastructure. An example is Colombia, whose government receives international military assistance for that purpose, namely from the United States.Footnote 136 It should also be noted, however, that in 1989 the US invaded Panama to capture General Noriega, who was at that time the head of government and commander-in-chief. Noriega was transferred to the US and initially treated as a common criminal, then later as a prisoner of war, but was finally convicted of drug-related offences against US law.Footnote 137 This shows that there is sometimes a thin line between organized crime and state governments and that in this context the prohibition of the use of force may become relevant.
The 9/11 debates mainly concentrated on the question whether states can invoke the right to self-defence against armed attacks by non-state entities, in particular terrorists. The subjects discussed included not only the actual level of intensity required for the attacks to qualify as ‘armed’, but also the (non-)applicability of the rules of attribution.Footnote 138 Although the details of this discussion cannot be spelled out here, it is evidently assumed in some legal literature that the intensity required to constitute an ‘armed attack’ does not need to stem from a single act, but that the threshold can be reached by the cumulative effect of various low-intensity acts that have resulted in a high number of victims and that disrupt the functioning of the state.Footnote 139 On the other hand, the ICJ has stated that terrorist acts have to be attributable to a state.Footnote 140 If this were not so, states could easily invoke the right of self-defence against criminal organizations in particular, by referring to the cumulative effects doctrine. The difficult question that still lacks authoritative clarification concerns the conditions for such an attribution of private criminal acts to the state to be deemed admissible: that is, what kind or degree of control or co-operation is necessary.Footnote 141 Those who advocate a broad interpretation usually do not ask how far such a standpoint could be (ab)used by states to justify military means against non-state entities other than terrorist organizations on foreign territory.
All this shows that international law governing the use of force can become relevant in the context of organized crime and gang violence. In this respect, many questions still need to be raised and answered.
International humanitarian law
In exceptional circumstances, the armed violence of gangs and criminal organizations can fall within the scope of IHL. As a rule, however, this body of law is not applicable in efforts to combat these non-state entities.
The applicability of IHL presupposes the existence of an armed conflict. According to the widely recognized definition by the International Criminal Tribunal for the former Yugoslavia (ICTY)Footnote 142 such a situation exists ‘whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’.Footnote 143 As many main cities and regions are plagued by the armed violence of organized criminal groups, for instance in Rio de Janeiro or parts of Mexico,Footnote 144 it may be asked whether such disquieting situations suffice to trigger the applicability of the law of non-internationalFootnote 145 armed conflict. Answering this question always presupposes a comprehensive factual assessment.Footnote 146 The following explanation can therefore only indicate some general elements whose presence needs to be established in each specific case.
Intensity requirement
Even if criminal collectives have machine guns, grenades, mines, or anti-tank rockets that enable them to defend certain territories against law enforcement operations by state security forces or against rival groups, far more complex considerations are needed to determine whether the intensity criterion (protracted armed violence) is satisfied.Footnote 147 Indicative factors that must be examined are:
the number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the intensity of a conflict.Footnote 148
Not all these factors need to be present.Footnote 149 The problem lies in their interpretation. Various quantitative indicators (number and duration of individual confrontations, weapon calibre, extent of material destruction, etc.) give a very broad idea of the elements involved. Simply referring to a high number of casualties caused by weapons that are also used by the armed forces is not enough. Careful analysis of the international tribunals' case law on the respective criterion, as well as teleological and comparative considerations, seem indispensable to reach a more coherent conclusion.
If it is assumed that the intensity criterion is primarily meant to identify situations amounting to a severe public emergency, which in turn justifies the application of a legal regime that profoundly changes the rules and principles governing the modern constitutional state in peacetime, at least two important observations can be made.
The first is that the violence of organized crime and gangs, although worrying, is non-ideological and principally clandestine in nature and therefore does not usually destabilize a country in a way that would justify rating the situation as a public emergency. It might claim many lives and cause considerable material destruction, yet the full involvement of armed forces is rarely needed. An armed conflict, however, is a severe emergency situation that requires their large-scale and longer-term participation.
Second, the vagueness of the said indicators enables the intensity criterion to be very broadly interpreted, which might have unwanted und unforeseeable legal consequences. As IHL applies, with regard to the right to life, as lex specialis to international human rights law,Footnote 150 the state concerned no longer has to strictly abide by the constitutional state's ‘law enforcement model’ and can target the ‘criminals’ – as fighters directly participating in hostilities – in accordance with IHL.Footnote 151 Especially in urban violence, the simultaneous application of both legal regimes may water down the presumption of innocence, the right to a fair trial, and the state's obligation to punish human rights violations committed by its security forces. This might generate an atmosphere of impunity that, in turn, often exacerbates situations of violence. While the complex relationship of the two legal regimes raises other difficult questions that make a narrower interpretation appear desirable,Footnote 152 the possibility that the violence of criminal organizations and gangs might in certain circumstances reach the intensity threshold cannot be categorically excluded.
Organizational requirement
However, only proving that a violent conflict has reached a certain intensity is insufficient to trigger the applicability of IHL. In addition, it has to be demonstrated that the criminal organization or gang constitutes an ‘organized armed group’. According to the ICTY, such an entity is characterized by
the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords.Footnote 153
Many of these elements stem from Article 1(1) of Additional Protocol II to the Geneva Conventions.Footnote 154 However, the special regime of Additional Protocol II is based on a far narrower notion of internal armed conflict than that of Article 3 common to the Geneva Conventions, as it presupposes compliance with all criteria laid down by its Article 1. In order to qualify as an ‘organized armed group’ under IHL, an armed organized criminal group has to show some structural similarities with armed forces. Its armed members must be co-ordinated to a certain degree by superiors, so that they are theoretically capable of controlling territory. However, ‘some degree of organization’ suffices;Footnote 155 a hierarchical system of military organization is not needed.Footnote 156 Nonetheless, it is hardly thinkable that clandestine criminal groups can define a military strategy and co-ordinate and carry out military operations. In Rio de Janeiro, for instance, where the drug factions defend their ‘turf’ with considerable success against the state, their ‘soldiers’ are frequently subordinated to a ‘security manager’, who in turn is subordinated to a ‘general manager’, who again is responsible to the local drug baron.Footnote 157 They also have access to military weapons and training.Footnote 158 Yet these fighters primarily react to acts of repression by the state and apply guerrilla-style hide-and-seek tactics, and sometimes even terrorist methods. This still seems an inadequate basis for deducing that they have the ability to plan, co-ordinate, and carry out military operations.
As their violence is not driven by an ideology or legitimate political intentions, the criminal organizations not only have no interest in confronting the government and assuming its powers and responsibility, they also have no interest in imposing disciplinary rules and mechanisms to guarantee respect for IHL.Footnote 159 This, however, is a crucial point, although compliance with IHL is not needed.Footnote 160 While the qualification as an organized armed group is based on objective criteria in order to avoid the application of subjective elements such as the group's motivation, the law is not completely ‘blind’ in that respect. For instance, the organizational criterion, by demanding an objectively verifiable military strategy or capacity to carry out military operations, rules out entities that rely exclusively on terrorist, guerrilla, and other perfidious methods: that is, groups whose ‘business’ is to assert their egoistic interests through cruel and arbitrary practices. It does not criminalize or delegitimize armed collectives in general, but it does exclude them from having the status of a party to conflict. Often organized criminal groups do not even act identifiably. This is another reason why it is difficult to treat them as groups possessing international legal personality and require them to assume duties under international law.Footnote 161
It must also be borne in mind that such groups are not static phenomena, but are often in a process of transformation.Footnote 162 They might become politicized, thus gaining legitimacy, strength, and support from larger segments of society that enable them to openly attack the armed forces. Some organized criminal groups therefore have the potential to develop into organized armed groups (and vice versa).Footnote 163 This would, however, primarily create international obligations. It does not prevent states from punishing these groups for their criminal acts and, if necessary, having recourse to the international framework designed to promote co-operation in criminal matters, in particular the Palermo Convention.
International criminal law
As certain organized criminal groups may qualify as organized armed groups, they may be held responsible for committing international crimes. Therefore, although proposals to establish an international tribunal for the prosecution of terrorism and drug trafficking did not succeed,Footnote 164 their conduct may come within the scope of international criminal law and in particular the Rome Statute.
Organized crime and gang violence as subject matter of the Rome Statute
On the face of it, and like terrorism,Footnote 165 organized crime or gang conduct do not in themselves usually amount to the crime of genocide according to Article 6 of the Rome Statute, unless they take place with the specific (‘genocidal’) ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group’.Footnote 166 For instance, in remote places such as the Amazon rainforest where criminal collectives engage in all kinds of illicit trafficking activities, they may deliberately expel or eliminate groups such as indigenous peoples defending their territory against the intruders.
According to Article 7(1) of the Rome Statute, to constitute a crime against humanity ‘the following acts [must be] committed as part of a widespread or systematic attack directed against any civilian population’. The acts listed include several crimes typically also committed by criminal organizations: murder, extermination, enslavement, deprivation of physical liberty, torture, rape, and so forth. Interestingly, in light of the international fight against human trafficking outlined above, the term ‘enslavement’ is defined by the Rome Statute as ‘the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children’.Footnote 167 Its Article 7(2) states that, for the purpose of paragraph 1, an
‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.
The provision clarifies that crimes against humanity can be committed by non-state entities.Footnote 168 However, what can be understood as an ‘organization’ under Article 7(2) is very controversial. One tendency is not to import the criteria that apply to ‘armed organized groups’ but to use different ones, such as power and use of force comparable to those of state institutions.Footnote 169 Although the details of that complex provision cannot be analysed here, it is evident that organized criminal groups only exceptionally meet this requirement.
Under Article 8(2)(f) of the Rome Statute, other serious violations of the laws and customs applicable to armed conflicts not of an international character, which are committed in the territory of a state when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups, constitute war crimes.Footnote 170 The requirements for the status of a party to an armed conflictFootnote 171 have already been discussed above.
The ‘next generation’ of international criminal law
As explained above, international criminal law may in exceptional circumstances apply to conduct by organized criminal groups as being crimes that can be tried before the International Criminal Court or other national or international tribunals. It is interesting to note that, nowadays, there is even a third way in which organized crime is within the reach of international criminal law. In the wake of the Yugoslav wars of the 1990s and despite the ICTY's ongoing jurisdiction, the international community took steps both to recover and to extend international judicial authority in nation-states after periods of transition. Thus, for example, the Court of Bosnia and Herzegovina was founded in 2002 and mainly has jurisdiction over war crimes, but also – and very decisively for the present analysis – over organized crime.Footnote 172 This new mechanism clearly shows the close link between international criminal law and the establishment of new judicial competences relating to organized crime. Indeed, violence by private gangs or any other organized group conduct incurs individual criminal responsibility by virtue of national jurisdiction, but triggered essentially by international criminal law.
Within this framework of an ‘international criminal law of a new generation’,Footnote 173 combating organized crime is also a matter of constituting the appropriate judicial authority and competence at the national level, mindful of the prerequisites for any criminalization of gang violence or organized criminal conduct in public international law: due allowance must be made for a framework of normative boundaries set by IHL, the law of peace and armed conflict, the protection of human rights, and the rule of law.Footnote 174
Conclusion
Dealing with organized crime and gang violence is a practical and also a theoretical challenge involving highly complex and dynamic phenomena. While national legislators have reacted in very different ways according to the peculiarities that they (believe they) identify, the fight against organized crime, gangs, and gang violence has increasingly become the subject of international regulation. It focuses on the transnational dimensions of organized crime and expresses the will of states to co-operate more effectively and to harmonize national laws. A complex international framework has been established, but it still lacks universal acceptance and full implementation. According to the prevailing doctrine, international law governing the use of force can become relevant only insofar as the criminal acts in question can be attributed to a state. In exceptional circumstances, however, organized crime and gang violence may fall within the scope of IHL and international criminal law; in general, this requires that the criminal collectives have developed into organizations possessing powers and/or structures similar to those of states.
