|The United Nations and Crime Prevention - Seeking Security and Justice for All (UN, 1996, 170 p.)|
Systems of criminal justice have been in existence since the dawn of human civilization. Clay tablets from 2400 B.C. listing a code of conduct were unearthed at an archaeological site in Syria. A more elaborate set of laws was developed in the twenty-first century B.C. under the Third Dynasty of Ur in ancient Sumeria, eventually to be superseded by the Code of Hammurabi of the seventeenth century B.C.
In many places in the world for much of the span of history, however, criminal justice was handled more informally. An assault on the person or on the rights of an individual was often regarded as a private matter, to be settled by the contending parties or their families. Violations of political authority or social or religious norms frequently resulted in wholesale sanctions against a tribe, kinship network or commune. Customary mechanisms for resolving disputes exist even today in some areas of the world, especially Africa, based on restitution and the restoration of social harmony rather than an adversarial courtroom procedure.
Exile was a commonly used sanction for serious offences. The offending party or parties were driven away from the community, stripped of their rights and deprived of the support of their kin. Exile was among the social mechanisms that led to the existence of the outlaw - someone living outside the bounds of legal convention. Outlawed individuals tended to join together in bands that provided their own rugged forms of mutual protection and regulation of rights. Out of necessity, they based themselves at the fringes of the settled portions of the world. Bandits took to the hills and mountains, swamps and jungles; buccaneers flying their own flags plied the high seas and ruled over isolated islands. Banishment and exile continued into relatively modern times, and were even linked to colonial settlements from European nations in North America and Australia.
Outlawry has provided the world with an array of colourful figures, celebrated in lore and legend. The reputations of selected brigands were enhanced by the perception that they had been outlawed due to political persecution or the skewed workings of a biased system of justice. But for every Robin Hood who may have stolen from the rich and given to the poor, there were a greater number who preyed on the defenceless for their own enrichment. Certainly, those who were victimized failed to appreciate the swashbuckling charisma of outlaw leaders. More generalized social costs were exacted by the restrictive effect of brigandage on travel and commerce.
Outlaws continue to operate in the contemporary world, and they still take advantage of isolated terrain. Processors and traffickers of illicit drugs maintain base areas in the mountains and rain forests, and pirates of a sort prey on shipping and smuggle illegal aliens. The range of organized crime, however, has been extended in recent times to include sophisticated networks operating at the heart of the big cities. The sale of addictive drugs, fencing of stolen goods, illegal gambling, prostitution, extortion and loan sharking are run as business ventures, and public officials routinely are corrupted. Criminal groups operating on a large scale and reaping tremendous profits are able to utilize the latest technology and mimic military and corporate organizational structures. In many cases, their capabilities outstrip those of the forces of social control.
Criminal justice at the international level
The growth in recent centuries of national States and national Governments, with their own sub-levels of localized authority, brought increasingly sophisticated codification of laws pertaining to criminal behaviour. Large-scale systems comprising police forces, courts and prisons were appearing in the major cities by the nineteenth century.
The implementation of international guidelines for criminal justice, however, is at a more tentative stage.
The effort is not without precedent. Roman law was applied within an empire that covered most of Europe and parts of Africa and West Asia. Regulation of social conduct incorporated in Islamic law spread to lands spanning three continents and continues to serve as an important element of the judicial systems of many countries. The Declaration of the Rights of Man encapsulated the ideals of the French Revolution and attempted to formulate universal standards for the protection of individuals and property. But these systems grew from particular political regimes and cultural conventions, and lacked the worldwide consensus required of a truly international approach to the control and prevention of crime.
One of the earliest forms of cooperation between sovereign nations in the field of law enforcement involved efforts to control piracy on the high seas - but this effort was often undercut by the practice of rival nations chartering freelance privateers to harass their rivals.
In the nineteenth century, scientific and pseudo-scientific studies of the causes of crime and the proliferation of reformatories and penal institutions drew widespread attention to the field of criminology. A series of conferences in Europe, of which the most notable was the First International Congress on the Prevention and Repression of Crime, in London in 1872, brought together experts and professionals from various countries. Leading issues under consideration included the proper administration of prisons, possible alternatives to imprisonment, modes of rehabilitating convicted criminals, treatment of juvenile offenders, extradition treaties and the "means of repressing criminal capitalists".
At the close of the London Congress, the International Prison Commission (IPC) was formed, with a mandate to collect penitentiary statistics, encourage penal reform and convene ongoing international conferences.
The formation of the League of Nations in 1919 and the Permanent Court of International Justice (popularly known as the World Court) in 1920 broke new ground in establishing standards of international justice. Galvanized by the breakdown of international order that led to the First World War, the founders of the League sought to regulate the conduct of States in a manner roughly analogous to the regulation of individual behaviour by criminal and civil law. The IPC established an affiliation with the League of Nations and held conferences in European capitals every five years between 1925 and 1935. At the last of this series of conferences, it was renamed the International Penal and Penitentiary Commission, or IPPC.
Enter the United Nations
The League of Nations foundered on the rocks of global conflict culminating in the Second World War, and so did the IPPC. When the United Nations was formed after the close of the war, it was decided that the control and prevention of crime would be included in its brief. The Organization declined, however, to accept affiliation with the IPPC, and for understandable reasons. Seventy-five years of valuable work and collection of research materials were tarnished by the Commission's 1935 conference, held in Berlin and dominated by adherents of the Nazi Government in power in Germany. During the war years a substantial part of funding for the IPPC came from the Axis powers, and the Commission all too frequently served as a publicist for theories on the racial and biological roots of crime and draconian measures for its control.
General Assembly resolution 415 (V) of 1 December 1950 dissolved the IPPC while incorporating its functions and archives within the operations of the United Nations.
From the beginning, United Nations involvement in crime prevention was seen as extending beyond the day-to-day contest between criminals and law enforcement agencies.
The United Nations Temporary Social Commission took the position that the prevention of crime and the treatment of offenders affected the fabric of society, and therefore were matters for social policy, and the UN's mandate to assist in improving criminal justice systems was linked to the Charter of the United Nations and the Universal Declaration of Human Rights. In the Preamble to the Charter are commitments to:
reaffirm faith in fundamental human rights, in the dignity and worth of the human person ..., to promote social progress and better standards of life in larger freedom, and for these ends ... to employ international machinery for the promotion of the economic and social advancement of all peoples.
Article I of the Charter defines one of the four basic purposes of the United Nations as that of achieving
international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.
Article 28 of the Declaration of Human Rights states that "everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized". Among these rights are, according to Article 3, the "right to life, liberty and security of person". Article 12 provides: "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks"; Article 17(2) adds that "No one shall be arbitrarily deprived of his property".
These provisions from the Declaration of Human Rights cut two ways. They posit the right of the people of the world to enjoy domestic tranquillity and security of person and property without the encroachment of criminal activity. At the same time, they predicate equitable systems of justice that protect citizens' rights and liberties.
The congresses and conferences of the United Nations reflected a growing awareness of the structural causes of crime and the need for measures to alleviate economic and social conditions that foster criminal behaviour. The corollary to this notion is awareness that crime is an impediment to viable economic and social development; that it diverts energies and resources from constructive endeavour, degrades individuals through various illicit activities such as drug trafficking and drug abuse, corruption and prostitution, places large sectors of economic activity outside the regulation of States and beyond the reach of tax collectors, and through corruption of public authorities undercuts the credibility and efficacy of Governments. The United Nations accordingly has promoted effective strategies for incorporating planning for crime prevention and criminal justice within overall social and economic development planning, as well as building and strengthening democratic institutions.
The United Nations was barely ten years old when the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders was convened in 1955 at the Palais des Nations in Geneva. Bringing together government officials, law enforcement personnel, penologists, sociologists and criminal justice scholars, the Congress focused on two areas that were mainstays in the deliberations of the old IPPC and had taken on renewed significance: treatment of prisoners and juvenile delinquency.
Cruel and inhuman treatment of those held in the custody of criminal justice systems has been a blight on civilization throughout history, but was a particularly poignant issue in the aftermath of the Second World War, while memories of barbarities meted out in prisons and concentration camps were still fresh. Lawlessness among young people had grown to startling proportions in Europe during the years following the Second World War, spurred by the ravaged physical and social environment and high number of orphaned or abandoned children. To an unprecedented degree, anxiety about juvenile delinquency was reflected in a multitude of academic studies, novels, movies and television shows on the subject among the Western nations that dominated the early membership of the UN.
The 95 Standard Minimum Rules for the Treatment of Prisoners, drafted by the Congress and later approved by the Economic and Social Council (ECOSOC), have had a cumulative impact on the practices of Member States and also paved the way for future international criminal justice standards. Exploration of the problem of juvenile delinquency directed attention to social inadequacies, leading toward an international consensus on the relation between the causes and effects of crime.
In accord with resolution 415 (V), the United Nations continued the IPPC practice of convening congresses every five years. The Second through Ninth Congresses were held, respectively, in London in 1960, Stockholm in 1965, Kyoto in 1970, again in Geneva in 1975, Caracas in 1980, Milan in 1985, Havana in 1990 and Cairo in 1995 (see Chapter IV for summaries of each Congress). At these Congresses, the practice of drafting international guidelines such as the 95 Standard Minimum Rules was extended.
The instruments approved by the Crime Congresses generally follow one of two basic forms: approved standards for the operation of certain aspects of criminal justice systems, or model treaties setting out areas of bilateral cooperation between nations. In the Appendix to this publication are summaries of the major instruments to come out of the Crime Congresses.
An organized response to organized crime
In the final decade of the twentieth century, for the first time since pirates and buccaneers disrupted maritime trade in the mercantilist era, transboundary crime has become a matter of global concern.
Transational crime organizations now dominate illicit international trade in drugs, prostitution, transport of aliens, smuggled gems and valuable metals, counterfeit currency, weapons and stolen goods. With combined annual sales that dwarf the gross domestic product of most countries and profit rates that commonly reach 70 per cent, they are able to amass assets more rapidly than major corporations or international financial institutions.
Similarly to their legal counterparts, crime multinationals diversify operations and investments, make use of modern technology and enter into cooperative ventures. They infiltrate government agencies and legitimate businesses and utilize the international banking system to launder and reinvest profits.
The far-reaching political, economic and social consequences of "crime as business" have been a concern of the United Nations since 1975, when the Fifth Crime Congress examined changes in the forms and dimensions of criminality, both transnational and national.
In 1988, the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances was adopted by a high-level international conference held in Vienna, Austria. This Convention is one of the most important internationally binding instruments aimed at combating one of the most lucrative activities of international crime - drug trafficking. Among the changes which States parties agree to work towards under this treaty are criminalization of money laundering and increased cooperation in extradition, mutual legal assistance and transfer of proceedings in criminal matters.
Two key conferences on international action against international crime were held under the auspices of the United Nations in 1994.
The International Conference on Preventing and Controlling Money Laundering and the Use of the Proceeds of Crime, organized by the International Scientific and Professional Advisory Council to the United Nations Crime Prevention and Criminal Justice Programme in cooperation with the Italian Government, took place in June in Courmayeur, Italy. Limitation of financial secrecy was called an "absolute sine qua non of serious money laundering control and of sincere international cooperation". Participants called for application of the "know your customer" rule advocated by some international bodies, particularly with respect to abolishing anonymous bearer accounts and to identifying the real party represented by a "nominee". They called for laws to require the reporting of suspicious transactions, and the expansion of existing reporting requirements to cover funds derived from a wider range of crimes.
The Conference also recommended that research be conducted to identify businesses which may be serving launderers and to determine the feasibility of extending present regulations beyond banking and financial institutions, with a view to preventing rather than simply attempting to prosecute money laundering.
The first ministerial-level global conference to concentrate exclusively on the challenge posed by crime multinationals was held in November of the same year, in Naples, Italy. The idea for a such a conference was first proposed in 1991 by Giovanni Falcone, a crusading Italian magistrate assassinated by the Mafia in 1992. His work and that of his colleagues is credited with sharply curtailing the national influence of Italian crime syndicates.
Noting that wide variations among criminal codes obstruct international cooperation and allow criminal organizations safe havens from which to operate, the 142 countries represented agreed on the value of "closer alignment of legislative texts concerning organized crime". The Naples Declaration also endorsed greater use of bilateral and multilateral agreements on extradition and exchange of witnesses and evidence; personnel exchanges between national law enforcement agencies; and international assistance to criminal justice systems in developing countries. States are urged to consider making money laundering a crime, whether or not an illegal origin of the funds can be proven; requiring greater transparency of banks and other financial enterprises; and establishing laws providing for the seizure of organized crime assets.
Although the provisions of the Naples Declaration are not binding, the exchange of views that occurred for the first time at a high level is a necessary prerequisite to overcoming centuries-old obstacles to international cooperation. These include differences in crime codes and criminal justice practices and sensitivities concerning national sovereignity. In addition, the Naples Conference mandated that Governments worldwide be asked their views on the advisability of creating a convention on transnational crime that would be legally binding.
An agenda for the twenty-first century
The urgent need for international cooperation against crime was prominently mentioned at the historic commemoration of the United Nations fiftieth anniversary, from 22 to 24 October 1995 at New York Headquarters. Among the suggestions made by the 128 heads of State or Government in attendance (and representatives of 177 nations in all) were the United States call for a declaration on international crime and citizen safety and proposals from Bolivia and Colombia for an international conference on narcotics abuse and trafficking.
The General Assembly's "Declaration on the Occasion of the Fiftieth Anniversary of the United Nations" (A/RES/50/6) stated that the nations of the world must "act together to defeat the threats to States and people posed by ... transnational crime and the illicit trade in arms and the production and consumption of and trafficking in illicit drugs."
In addition to the realization that organized transnational crime poses a serious threat to world security, other relatively new concerns regarding crime have come to the attention of the international community and the public at large.
The proliferation of computers and computer networks expands the possibilities for fraud and money laundering. Illicit disposal of nuclear and other forms of toxic waste and negligence in large-scale transoceanic transport of petroleum are among the actions now perceived as crimes against the natural environment. Use of large-scale technologies in agriculture at times produces results which can be said to be criminal: confiscation of tribal lands, frustration of land reform efforts or poisoning of farm labourers by chemical insecticides. The world has come to see theft of cultural patrimony - objects of historical, religious or artistic value - as a matter of concern to national criminal justice systems and international bodies, rather than a high-spirited "Indiana Jones"- style venture. Trafficking in persons - whether adult or child prostitutes or illegal aliens destined for forced labour in sweatshops - exploits and degrades people, often taking lives, and exacerbates the difficulties inherent in establishing fair immigration policies. Violence against women, once overlooked when taking place within a family structure or behind closed doors, now is condemned widely, and its prevention has become a matter of urgent concern.
These are among the complex questions of criminal justice policy that face the international community in the 1990s and are likely to remain on the agenda into the twenty-first century.
A larger, overarching question involves locating a balance between the twin exigencies of crime control and justice. On the one hand, improvement is called for in protecting the rights of those accused or convicted of crimes, with the ultimate goal of eliminating arbitrary arrest and detention, corrupt or biased courts and brutal treatment of offenders held in the custody of criminal justice systems. On the other hand, recent United Nations congresses have stressed the rights of victims of crime to protection under the law and, in some situations, to redress or restitution. Effective law enforcement and a fair criminal justice system are a bulwark protecting the rights of people to a secure existence and to develop their economic and social potential. At the fulcrum of these two arms of policy action is crime prevention. The incorporation of counter-measures to criminal behaviour into social development programmes offers a long-term hope for bringing the scourge of crime under control.