110TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSCRIME AS THE GROWING INTERNATIONAL SECURITY
THREAT: THE UNITED NATIONS AND EFFECTIVE
COUNTERMEASURES AGAINST TRANSNATIONALECONOMIC AND COMPUTER CRIME
Slawomir Redo*
I. INTRODUCTION
This paper, which seeks to integratecriminological, legal and public policy
perspectives on transnational crime,emphasizes that crime has markedly
extended its reach beyond any borders. It
also has an exemplary negative influenceon the official domestic economies. With
the rapid advance of the Internet,
perpetrating transnational economic andcomputer crimes became easier. This paper
reviews various forms of transnational
illicit trafficking, including illicit profits
derived from it, and addresses the problemsof search, seizure and confiscation of those.
If emphasizes that transnational crime
poses an increasing threat to the economies
and security of States, as seen from theUnited Nations standpoint. In conclusion,
this paper calls for further strengthening
and consolidating of criminal policy andlegal action. This would enhance theeffectiveness of global countermeasuresagainst transnational crime.
II. DIMENSIONS OF
TRANSNATIONAL CRIME
Tr a n s n a t i o n a l c r i m e , w h i c h i sincreasingly becoming organized, assumes
many dimensions. From the public policy(governance) perspective it is seen as an* Criminal Justice and Legal Affairs Officer, Centre
for International Crime Prevention, Office for Drug
Control and Crime Prevention, United Nations
Office at Vienna, Vienna International Centre,
United Nations

expression of “uncivil society”1. From thecriminological (crime prevention andcriminal justice) perspective, it is a threat
to the security and well being of peoples2.
In practical terms, one may note that mostrepresentative dimension of transnational
crime includes at least two Statejurisdictions, not necessarily adjacent to
one another3. This will be demonstrated
by the first of the three cases below.
1

Kofi Annan, Secretary-General of the United
Nations. In November 1997, the CICP/ODCCP/UNOV was designated to deal with criminal
manifestations of “uncivil society” (see: doc. A/51/
950, Renewing the United Nations: a programme
for reform. Report of the Secretary-General, para.
209). United Nations resolutions and otherdocuments may be obtained electronically throughthe Internet at <http://www.un.org>.
2 United Nations Declaration on Crime and Public
Security, General Assembly resolution 51/60 of 12
December 1996 (art.1).
3 Criminological definition suggested by G.O.W.
Mueller, speaks of “criminal activities extending
into, and violating the laws of several countries”(Global Report on Crime and Justice, (chapter 9),
O x f o r d U n i v e r s i t y P r e s s , N e w Yo r k
1 9 9 9 ( f o r t h c o m i n g ) ) . Tr e a t y d e f i n t i o n o ftransnational organized crime has been a subjectof discussions in the process of elaboration of a draft
United Nations convention against transnatinalorganized crime, due to be finalized by the end of
the year 2000. Ongoing drafting work is officiallyreported to the General Assembly through the
Economic and Social Council, in the form of reportson the sessions (sixth-eighth) of the Commission
on Crime Prevention and Criminal Justice (docs E/
1997/30-E/1999/30).

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RESOURCE MATERIAL SERIES No. 55
On 17 December 1995, huge quantities
of firearms and ammunition were airdropped by parachute into Purulia (WestBengal, India) from an AN-26 Russianmade aircraft. An estimated two to threehundred AK-47 assault rifles, 17 000
rounds of ammunition, 8 rocket launchers,
80 anti-tank grenades, seven 9 mm pistols
and various combat accessories wereamong the dropped weapons. Reportedly,in addition to this cargo, two otherconsignments were dropped in Pakistan,
and another in the sea of Thailand. The
plane, purchased in Latvia, carried arms
loaded in Bulgaria. It was manned by a 4
person crew of Latvian, Dutch, Danish andBritish. Before it was stopped by the
Indian authorities in Bombay, the planetransited Pakistan, Thailand, andattempted to land in Bangladesh. The
shipment it carried was financed by a
Hong-Kong based Chinese withconnections to a Romanian arms trafficker,
as well as British, Chinese and Indian
shipping companies. The plane was
impounded, and the crew of the aircraft
have been arrested and detained by the
Indian authorities. However, the two main
operatives in the scheme remain at large.
One of them is also wanted for gold anddrug smuggling, and for counterfeiting US$100 bills. On behalf of the Indian police,
INTERPOL issued its pre-arrest “rednotices”4.
The following example of a “local”
transnational crime shows how it may be
4

Donald Manross, Developing new links andinternational policing (in:) Pericles Gasparini Alves,
Daiana Belinda Cipollone (eds), Curbing Illicit
Trafficking in Small Arms and Sensitive
Technologies. An Action-Oriented Agenda, United
Nations Publication, Sales No. GV.E.98.0.8, NewYork and Geneva 1998, p. 105; Raymond Bonner, A
world of arms: weapons in the sky. The murky lifeof an international gun dealer, New York Times, 14
July 1998.

118“grounded” in one particular area. In 1996,
in a border triangle between Argentina,
Brazil and Paraguay, in a Paraguayan city
Ciudad del Este, the law enforcement
agencies of the Paraguayan and Brazilian
Governments jointly carried out an
investigation with a view to eliminating across-border firearms trafficking between
those two countries. The scheme involveda legal purchase (with an export license)of such weapons in the U.S., and their legal
import (no import license was necessary)
to Paraguay. Shipments arriving to Ciudaddel Este were sold to Brazilian customers,
and illegally brought (import license isrequired) into one of the Brazilian
bordering cities. There they fell into thehands of organized crime traffickers.
Alternatively, shipments ordered in Ciudaddel Este ended up directly from the U.S.
in Sao Paulo (Brazil), where they were sent
to the “favelas” (slums). There, again, theyfell into the hands of organized criminals5.
Reportedly, in the same Paraguayan city,
organized crime groups were involved incross-border trafficking to Argentina andBrazil of various other contraband (e.g.,
drugs, alcohol, cigarettes, pirated compact
disks, software). The city’s trade industry
were, partly, involved in the illicit
manufacturing of such commodities, and,plainly, in their massive sale. It wasestimated that the official gross national
product of Paraguay (US $ 10 billion)
matched the profits from provision of suchcontraband, that ends up in Argentina andBrazil and undermines their official
economies. To visualize the amount ofillicit trafficking originating in Ciudad delEste, in 1997, according to an Argentine
intelligence report, more than 1500 freightcontainers passed through the borders
5

Silvia Cucovaz, Interrelationship between illicit
trafficking in small arms, drug trafficking andterrorist groups in South America (in:) Pericles
Gasparini Alves, Daiana Belinda Cipollone (eds),
Ibid. p. 38.

110TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
without scrutiny. According to otherestimates, most of the 40 000 people
crossing each day the bridge between
Paraguay and Brazil were not controlled.
In a spot check by the Brazilian police,
within two hours, they arrested 200 illegal
immigrants.
Finally, a Taiwanese bussinesman,taking advantage of good investment
opportunities, who built up his toy factoryin Ciudad del Este, reportedly became avictim of extortion demands. These werecarried out by two Chinese gangsters, and
one Paraguayan women (such groups arealso composed of Arabic nationalities). In
sum, the amount of criminal violence (e.g.,
extortions and gang wars), vice (gambling),
perpetrated by various foreign andParaguayan nationals in the city, andtransnational smuggling originating fromit, is so great, that one of its residents
sarcastically and with resignation
concluded to a visitor: This is the United
Nations of crime”6.
The Transnational nature of crime isbrought home to almost any visitor of theInternet. One may imagine a group ofcomputer users involved in penetrating, forfinancial gain, a computer system of a tradecompany. The penetration takes placeindirectly through computer networks inother jurisdictions, in the same State or
abroad. Investigating law enforcement
agencies, tracing the origin, finds out thatits last stage was carried out by a computer
in country B. The law enforcement
authority turns to that country forassistance under an existing mutual legal
assistance treaty. Country B offers suchassistance, but informs that it was only a6

Sebastian Rotella, Jungle hub for gangsters,
terrorists, The Yomiuri Shimbun (Tokyo, Japan),in the article of 7 September 1998 jointly publishedwith The Los Angeles Times, p. 12. Other alleged
facts and estimates are also drawn from that article.

transit country through the computer
network of which the penetrators send
their communications to the victimized
trade company. That communication
arrived earlier from country C with whichcountry B has neither a mutual legal
assistance treaty nor friendly relations.
Ultimately, after further such tracing, itturns out that both the penetrators and thevictim reside in the same jurisdiction incountry A.
Obviously, purpetrators want to conceal
their identity by routing their actions
through countries from which it would be
difficult, if not impossible, to detect their
original location 7 . In fact, similar
penetration has already taken place in the
United States, as reported by the press8.
What appeared to be a transnational crime
planned abroad, turned out to be local, inthe sense that both offenders and victim
were of the same country and place ofresidence. In the virtual world nowadays,
the “United Nations of crime” has arrived
at the doorsteps of Internet users under theguise of foreign involvement.
III. DIMENSIONS OF THE
INTERNETOne hundred and ninety four countries
with about 70 000 networks are now
connected by one Internet meta-protocol.
In January 1997 there were 16.1 million
computer hosts worldwide serving 57
million users, not including 14 million who
have access only to electronic mail. All
those included governments, transnationaland domestic financial and commercial
institutions, millions of private individuals
and, last but not least, academics, withwhom the dynamic growth of the Internet
7

This example was drawn by Mr. Gregory P. Shaffer,
Computer Crime Unit, U.S. Department of Justice(private conversation, 6 October 1998).
8 Ibid.

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RESOURCE MATERIAL SERIES No. 55
started 9 . Although the majority ofcomputer servers are located in thedeveloped world, this proportion becomes
more favourable to developing countries,
where the growth of the Internet isparticularly strong10. Needless to say, thisdynamic growth, currently estimated at a
rate of 20 % a month, basically takes placein the developed world (North America andWestern Europe) 11. However, the U.S.
holds 80 % of all global computing power.
As of this writing, there existed about 320
million world wide web sites, mostly in thedeveloped world12.
Estimates suggest that by the year 2001
there may be 1 billion personal computer
users, with one third connected to theInternet (that is about ten fold more thanin 1996). This about 175 million of themwill have an access to, and the possibility
to enter into, various financial transactions
facilitated by this medium13. By the year
2001 the value of financial operations
carried out through the Internet may
exceed US $ 210 billion.
This may be very little in comparison
with the total volume of economictransactions carried out in the world now,by means other than the Internet. But one
would need to put such estimate into
perspective to realize, for instance, thatwhat is now 100 % of all available data andinformation in the world, will represent
only 5 % of that available in 50 years14.
Consequently, the growth of electroniccommerce on the Internet will alter the
proportions between the Internet and nonInternet-based commerce steadily andmore dramatically, as the time goes by.

9

In 1969 Internet begun its origins as a very smallinternal network connecting about 100 computersof scientists and engineers forming a team of theAdvanced Research Projects Agency (ARPANET) of
the U.S. Department of Defense (DOD). Itsinternational outreach started in 1971.
“Cyberspace”, as a term, was first used in a sciencefiction novel “Neuromancer” by William Gibson(1964). Currently, “cyberspace” tends to be equatedwith “the Internet,” though cyberspace isgenerically broader than the Internet, and better
communicates a meaning of this new
multidimensional, non-physical global community.
10 Matrix Information Directory Services, Inc. (MIDS),
Austin, Texas, USA <http://www.mids.org/>.
11 Neil Chambliss, Lee W. McKnight, and Richard J.
Solomon, Re-Engineering the Elephant:
Organizational Alternatives for Accelerating
Internet Access in Africa (in:) White Paper for
United Nations Development Programme in
Cooperation with the World Bank, US National
Aeronautics and Space Administration, US Agency
for International Development, US Department ofState, 16 May 1995, <http://www.undp.org/sdnp/aif/
mitrep.html>.
12 <http://www.neci.nj.nec.com/homepages/lawrence/websize.html>

120

Last, but not least, in sharp contrast
with the facts, figures and estimatessuggesting expanding dimensions of theInternet, one must note that in the world
population of about 6 billion people, morethan 60% of the world’s population havenever made a phone call15. The great divide
between developed and developing
countries may be even greater in the years
to come.

13

Estimates published by a private transnational
company, International Data Corporation <http://
www.idcresearch.com/HNR/ii7sf.htm>.
14 S.L. Amranathan, Crimes related to the Computer
Network. From New Economic Order to New
Information Order, position paper submitted for the
Experts Meeting on “Crimes related to theComputer Network,” UNAFEI, 5-9 October 1998,
para. 3 (available from UNAFEI).
15 Pekka Tarjanne, Secretary-General of theInternational Telecommunication Union,
TeleEuropa’s Communications Newsletter, 30
October 1995.

110TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
IV. TRANSNATIONAL ECONOMIC
AND COMPUTER CRIME
Abuse of the Internet for illicit or
criminal purposes makes economic andcomputer crime more intermingled than
before. Before the computer era, illicit
profits derived from various forms of
economic crime could be concealed byfraudulent (paper) book-keeping. With theoutset of computer (“paperless”) bookkeeping records held on stand alone
machines could be more readily
manipulated. However, the outcome ofsuch manipulation could be exclusively
identified and pursued within a local
parameter. Local computer networking
and global computer networking throughthe Internet overwhelmed such limits. It
enabled honest and dishonest users tocarry out paperless financial transactions
anyplace in the world. For the latter ones,
it also allowed them to hide and legalize
illicitly earned profits any place where
domestic legislation and regulatory
schemes were more favorable (“taxhavens”). The burden, anxiety or fear ofcarrying through State checkpoints cash of,e.g., US $ 1 million, in false-bottomed
suitcases or smugglers’ vests is no longer
felt. By one computer key stroke, the sameamount of cybercash within a moment ends
up in a bank account in one of the manytax havens in the world. There is no
physical trespass of a border, only virtual16.

16

Obviously, crimes related to the computer network
go beyond money laundering, and involve violations
the essential motive of which is not economic. For
instance, stealing passwords (hacking), sending
harrasing e-mail or intrusion to destroy computer
records, including “cyberterrorism”, have othermotives. This article focuses mainly on economic
computer crimes.
17 E.g., Trafficking in children for medical exploitation<http://www.uia.org/uiademo/pro/d4271.htm>.

A. Illicit Trafficking: Facts, Figuresand Estimates
Facts and figures about various formsof transnational trafficking, even if
occasionally questionable, are plentiful17.
Every day, on a case-by-case basis, theinternational press reports on spectacular
seizures, arrests and convictions. Policeand other criminal records which evidence
how the criminal justice apparatus handle
those cases hardly confirm the composite
picture of developments in illicit
trafficking, especially if it transcends
national boundries. However, there are notransnational crime statistics on these
phenomena; there is hardly any country in
the world whose statistics would accountfor them, and there is no treaty definitionof transnational crime or transnationalorganized crime. Moreover, amongst geopolitical, legal and economic factors, thevolume of illicit traffic in certain
commodities would also be influenced byblack market relations between the
demand for and supply of that commodity,
and the more active or passive activities oflaw enforcement apparatus involved inseizing it.
Depending upon the assumptions andmethodologies of experts, governmental
authorities, international and nongovernmental organizations, informed
estimates on the full scope of the traffic in
the commodities in question, and resulting
illicit profits, will vary18. To these many
limitations is added still another: none ofthose estimates consider what proportionof illicit profits remains within thejurisdiction of the country of origin of theassessed activities, and what is abroad,thus making them really transnational.
Questionable as the estimates may be,
the most overarching estimate, supposedly
covering all forms of illicit trafficking, washazarded by a group of economists in 1997,
and reported by the Financial Times 19.

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RESOURCE MATERIAL SERIES No. 55
According to that source, the total annual
amount of laundered money would be about
US $ 1000 billion, resulting from illicit
traffic in various commodities. In the mostfrequently repeated, but also speculative
estimate, the first part of this sum (US $300-500 billion) involves annual sales ofdrugs; out of which there are enormous,
unnaccounted for and, of course, untaxed
profits.20 The lowest estimate of US $ 85
billion acquired in the late 1980s from illicit
sales of cocaine, heroin and cannabis in the18“Police seize at most 40 percent of the drugs coming
into the U.S. and probably a smaller percentageof those entering western Europe. The supply of
nuclear materials is obviously much smaller, but
law-enforcement agents are also less experienced
at stopping shipments of uranium than they are
in seizing marijuana or hashish. To believe that
authorities are stopping more than 80 percent of
the trade would be foolish’’ (Phil Williams and PaulN. Woessner, The Real Threat of Nuclear
Smuggling, <http://www.sciam.com/0196issue/
0196williams.html>. Nevertheless, all appear toagree that the number of incidents is growing andrepresents a disturbing trend, especially inqualitative terms. For example, the New YorkTimes in February 1995 cited a “Western European
intelligence report” to the effect that the numberof cases of actual or attempted nuclear smugglingfrom former communist countries reported toWestern governments had more than doubled in
1994, to 124 from 56 the previous year and 53 in
1992. Furthermore, of the 1994 cases, a total of 77
had involved uranium or plutonium rather than“more harmless materials”. For its part, theGerman federal criminal police (the BKA) recently
reported that it had investigated no fewer than
267 cases of “illicit traffic in nuclear or radioactive
materials” during 1994, compared to 241 in 1993,
158 in 1992, and just 41 in 1991. See A. Robitaille;
R. Purver, Commentary No. 57, Canadian Security
Intelligence Service Publication, Smuggling
Special Nuclear Materials, <http://www.csisscrs.gc.ca/eng/comment/com57e.html>.
19 Vincent Boland, Earnings from Organised Crime
Reach 1000, Financial Times, 14 February 1997.

122

US and Europe equalled the individual
Gross Domestic Products (GDP) of 150 of
the 207 economies of the world. The
highest estimate of USD $500 billion would
approach 13 % of the combined GDP of theEuropean Union (EU) countries, 8 % of the
GDP of the U.S., or about 4 % of countriesof the Organization for Economic
Cooperation and Development (OECD)21.
Apparantely, the turnover in and illicit
profits obtained from selling othercommodities follow suit. Stolen art is said
to be second to drug trafficking, in turnoverand in laundering the profits 22 . Not
corraborated by any evidence, this isundermined by an equally unsubstantiatedand competing claim that it is the illicit
traffic of flora and fauna which occupies
second place23.

20

Freda Adler, G.O.W. Mueller, William S. Laufer,
Criminology, (sec. ed.) Mc-Graw Hill, Inc. 1994, p.
327. This estimate was originally calculated by the
Financial Action Task Force working withinOECD. United Nations estimates, based on cash
flows from international banking and capital
account statistics, suggested that up to US $ 300
billion globally turned over annually may havebeen available globally for lundering in the 198Os,
amounting now to US $ 500 billion in the 1990s.
This is to represent 8 - 10 times of the originalvalue of drugs before their entering the US market,
i.e., $ 50 billion. See further: United Nations Drug
Control Programme, Economic and Social
Consequences of Drug Abuse and Illicit Trafficking,
UNDCP Technical Series Number 6, Vienna 1997,
p. 27.
21 Human Decelopment Report 1997, Oxford
University Press, New York 1997, pp. 222-223.
22 Norman Palmer, Statutory, forensic and ethicalinitiatives in the recovery of stolen art andantiques (in:) Norman Palmer (ed.) The Recovery
of Stolen Art. A Collection of Essays, Kluwer Law
International, London 1998, p. 4.
23 Deutsche Presse Agentur, 17 November 1994
(Global, op.cit note 3., (chapter 9)).

110TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Available estimates show the possible
financial scale of illicit traffic.
International traffic in human beings,
which is claimed to involve millions ofpeople, reportedly produced about US $ 9.5
billion in illicit profits in 1994,24 stolen,
smuggled and looted art between US $ 4.5
to 6 billion a year25, and in trafficked floraand fauna, between US $ 2-3 billion ayear26. Quite notable are believed to be theillicit profits caused by maritime fraud,illicit trafficking in human organs, and inmotor vehicles27. Last but not least, in
1997, while illicit traffic in computer
software reportedly caused losses of US $11.4 billion in roughly half of the world (80surveyed countries) against US $ 17.2
billion in revenues, there were also
unaccountable illicit profits untaxed by
States28. The heaviest losses in taxes, andthe highest profits for illegal traders, wereabsorbed because of developing countries
which seemed to be a scene of,comparatively, more cases of software
pirated from the originals manufactured indeveloped countries, than within developed
countries themselves29.

24

D. Torres, Esclaves: 200 Milliond’ Esclaves
Aujourd’hui, Phebus, Paris 1996; Financial
estimate of the International Center for Migration
Policy and Development (Global, op. Cit note 4(chapter 9)). In comparison with that suggested in
the above book, the United Nations estimate is of
4 million people trafficked worldwide annually.
Also “[t]here is an estimated seven billion dollars
annual profit in this market” (Gillian Caldwell, CoDirector of the Global Survival Network,
interviewed by Associated Press, 22 June 1998).
25 Global, op. cit note 3 (chapter 9).
26 Estimate of the World Wildlife Found (Global, op.
Cit note 3 (chapter 9)).
27 See further, Global, op. Cit note 3. (chapter 9).
28 Software Publishers Association, Software piracy
and global competitiveness. Report on global
software piracy, 1998 <http://www.spa.org>.
29 Global, op. cit note 3 (chapter 9).

Separately, one should mention a very
sizeable traffic in small arms and light
weapons, but the proportion between traffic
driven by political and economic motives
cannot be ascertained. While aggregate
estimates are extremely tenuous, 30
information on black market prices ofsingle items shows a great disparity inprices, hence illicit profits31. Profits fromthat traffic are additionally increased frombarter transactions involving illicit selling
30

The legal turnover of the armaments industry “hasbeen estimated at around $ 5 billion a year-plus
at least as much again on the black market” (The
Economist, Hey, anybody want a gun ?, 16 May
1998, p. 47).
31 An AK-47 automatic machine gun in Albania canbe bought for a few U.S. dollars. In Uganda, an
AK-47 can be purchased for the cost of a chicken
and, in northern Kenya, it can be bought for the
price of a goat (Note by the Secretary-General,
Impact of armed conflict on children, UN doc. A/
51/306 of 26 August 1996, para. 27). Research inSouth Asia reveals that locally produced AK-47s
are everywhere, but those manufactured innational arsenals still fetch a higher price (TheNew Field of Micro-disarmament: Addressing theProliferation and Buildup of Small Arms and Light
Weapons, Brief 7, based on a study prepared for
the German Foreign Office by Edward J. Laurence,
assisted by Sarah Meek, Bonn International
Centre for Conversion (BICC), September 1996,
p. 13). In Japan, a handgun is as expensive as acompact car (Statement in : Firearms Enforcement
Strategy of Japanese Police, Firearms Control
Division National Police Agency, Japan). The profit
margins for retail shipments of firearms are high.
For example, and reportedly, in the Purulia dropcase, the contracting company operated at a 65 %profit margin (Bonner, op.cit. note 4.).
32 R.T. Naylor, The structure and operation of themodern arms black market (in:) Jefferey Boutwell,
Michael T. Klare and Laura W. Reed (eds), Lethal
Commerce: The Global Trade in Small Arms andLight Weapons, Committee on International
Security Studies, American Academy of Arts andSciences, Cambridge, MA 1995.

123

RESOURCE MATERIAL SERIES No. 55
of arms for diamonds, precious gems, jade,ivory, teakwood, recreational drugs, andalso looted antiques32.
In other forms of illicit trafficking,financial profits may still be very
considerable, e.g. in the case of traffic innuclear material33. However, experts, even
if they emphasize the seriousness of
nuclear smuggling, add also that suchtraffic “has been overblown by the media
because it was a good scare”34. Secondly,
they are not sure whether the motive of
smuggling (political or criminal) has been
identified clearly enough. Only acccording
to some is it now, with the onset of Mafiatype organizations, becoming increasingly
criminal, whereas earlier it had mainly
been political35. Nontheless, transactions
in all the above mentioned commodities
would contribute to part of a total of an
estimated US $ 1000 billion in money to
be laundered. In what percentage, it is
impossiblle to say.
B. Illicit Trafficking: Search,
Seizure and Confiscation of Illicit
Profits
Traffic in most of the above involves
receiving countries but also countries
where obtained illicit profits may be finally
returned as laundered, through the
network of others and legislation
vulnerable to such processes. In 1998, theUnited Nations listed 48 countries andterritories with such legislation attractive
33

In an unsuccessful police entrapment attempt, US$ 250 million had been offered for four and a half
kilograms of plutonium (Barry Kellman, David S.
Gaultieri, Barricading the nuclear window - a legal
regime to curtail nuclear smuggling, University
of Illinois Law Review, Vol. 1996, Number 3, p.
672). See also: P ricles Gasparini Alves, Daiana
Belinda Cipollone (eds), op.cit. note 6, pp. 125-152.
34 Statement ascribed to the IAEA official, as quoted
in: Barry Kellman, David S. Gaultieri, Ibid, p. 676.
35 Ibid, p. 673.

124

to stock fraudsters, drug traffickers,
corporate embezzlers and commodity
smugglers. The problem seems to be not
only identified with a particular location,
but also with evolving comparativeadvantages that any banking system in theworld may offer their clients36.
Technically, identifying possible money
laundering schemes is a tedious task. In
the U.S. the volume of annual money wiretransfers reaches approximately $500
trillion per year. Assuming that alllaundered funds pass through the UnitedStates, sent by wire transfers (either single
or several), a median of 0.05 percent wassuggested to represent the portion of moneyw h i c h i s l a u n d e r e d 37. E s t i m a t e s
concerning other countries in the world are,generally, not available (except forAustralia)38. For the time being, findingout the global extent of money laundering
is impossible.
The legal and technical context enablingsearch, seizure and confiscation of
incriminated funds gets even more
complicated in cases of identyfying
computer records of operations supporting
illicit traffic. As official traders rely moreon computer networks, so do the criminals,
organized or not, who carry out theiroperations39. Commission of crime by using
36

Financial Havens, Banking Secrecy and Money
Laundering, United Nations Office for Drug
Control and Crime Prevention, Global Programme
Against Money Laundering, Preliminary Report,
20 May 1998, p. 51.
37 For further details see: OTA, Information
Technologies for the Control of Money Laundering,
September 1995 (OTA-ITC-630).
38 John Walker, Estimates of the Extent of Money
Laundering in and through Australia, AUSTRAC,
Sydney 1995.
39 Raphael Winnick, Searches and seizures ofcomputers and computer data, Harvard Journalof Law & Technology, Vol. 8, No. 1 (1998), p. 76.

110TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
traditional techniques only (e.g., making
the paper based operation of money
laundering as seemingly legal as possible)
is already a very difficult investigative andjudicial task. But with the increasing useof computer networks for criminal purpose,the difference in the methods of operation(paper based or paperless) makes atremendous impact on the way in whicht w o s u s p e c t s , u s i n g , r e s p e c t i v e l y,
traditional or modern techniques, will behandeled by the criminal justice system.
This will be illustrated by the example
below.

vehicle. Since, at the time of the police
action, Mr. J. D. was visiting a neighbour
in the vicinity of his house, and noticed an
imminent danger of being arrested, hemanaged to elude police and flee to country
A. An extradition request prepared bycountry D, was not granted by country A
because that country’s constitution
prohibits extradition of its own nationals
abroad. Instead, country A initiatedpreparatory proceedings with a view todetermining if Mr. J. D. may be charged
with a serious criminal offence in country
A.

Mr. J. D., who is a citizen of country A,
had been suspected of illicit drugtrafficking to country D, through country
B and C. While he was staying there, policeof country D surveilled his activities. Police
surveilled visits made to Mr. J.D’s house,and controlled incoming letters. Afterobtaining a search and arrest warrant,
provided in two days at the request of thepolice by a judge, and delivery of last mailof which police knew contained
incriminating material, they decided tostart with the search. Police simultanously
searched the premises rented by Mr. J. D.,
and where he lived. They entered therented premise by force, and found large
quantities of drugs hidden in a cargo with
officially imported coffee. In Mr. J. D.’shouse, which stood open, police foundpapers documenting his illegaltransactions with accomplices and banks
in which he deposited profits from thosetransactions. They also found suspected
papers, located in a container in a locked
safe, which they opened with the assistanceof a locksmith. Further, they found in his
house merchandise (TV set and a radio),
allegedly stolen from a nearby shop.
Outside his house, police found a car witha counterfiet vehicle identification number.
Police seized the drugs, papers, TV set andradio, sealed off the rented premises andhis house, and towed away a suspect

Depending on the legal tradition of acountry (common, civil law) from which one
may want to assesses the situation ofcountries A and D, there will be rather clear
answers to the questions asked. If actions
taken by their respective criminal justiceauthorities regarding various objects
searched and/or seized, and Mr. J. D.
himself, were legal or not. With moredifficulty, the same actions may be legallyassessed in terms of their compliance with
the United Nations criminal justice andhuman rights standards and norms.
Hardly in any country in the world, andnot in the United Nation law at the time ofthis writing, could one find comprehensive
and uncontested answers to the following
series of questions, if they were posed inrelation to an alleged crime related to thecomputer network:(i)

May police monitor the traffic ofdata on the Internet ?
(ii) Is the data regarded as a tangible
or intangible object ?
(iii) Can criminal justice authorities ofcountries B and C be asked for legal
assistance, in finding out if theInternet service provider(s) (ISP) in
their countries have any computer
records evidencing a suspect’stransactions, both with alleged
accomplices and/or financial

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RESOURCE MATERIAL SERIES No. 55
institutions ?
Is the ISP under the obligation tokeep its own records for a specified
period of time for possible
inspection by the police in cases ofalleged computer criminal
activities of receivers of theirservice ?
(v) What if a suspect used an alias on
the Internet to hide their true
identity and original location fromwhich s/he was communicating by
the Internet ?
(vi) Is it necessary to catch a suspect in
the act (striking the keys on thec o m p u t e r ’s c o n s o l e ) o r i s i t
sufficient that incriminating data
would be found on the computer intheir absence?
(vii) Does the ISP have an obligation tocooperate with the police in country
A, by notifying the arrival of specificsuspected messages ?
(viii) What happens if some of thosemessages were not anticipated ?
(ix) May any messages be read by theircontent, or only from whom they
originate ?
(x) Should the search warrant andsubsequent possible seizure beparticularized or extended to any
d a t a f o u n d o n t h e s u s p e c t ’s
computer, including those which asuspect may have deposited abroad,for example with the affliatedfinancial institutions abroad on
their computer servers there ?
(xi) What if some of the data stored on
the hard disk of a suspect’s
computer are personally very
sensitive and private (e.g.,correspondence with family, healthrecords) ?
(xii) May a computer system of an ISP
provider be searched, all its
equipment with data seized, thus
bringing its operation to a complete
halt ?

(xiii) How soon can the police receive asearch warrant from a judicial
authority, given that computer data
may be faster, more readily andinadverently destroyed than objects
like drugs or papers ?
(xiv) Is it possible for the police to force(hack) entry to a suspect’s computerand use an encryption key todecipher the contents of thecommunication (data on
transactions, and transactiondata) ?
(xv) May the police search for and size
computer data from an unrelated
alleged criminal activity by asuspect ?
(xvi) Does the bilateral extradition
treaty cover the question of making
and granting requests for crimes
related to the computer network ?
(xvii) Is the suspect entitled to any
remedy against the seizure of theirlawful belongings, either in the
country of seizure or in the country
to which the suspect fled ?

(iv)

126

The above set of questions is far frombeing exhaustive. However, they do notseem to be farfetched, even though FATF
admits that no case of Internet-based
money laundering has been noted 40 .
Finding legal answers to those questionsin the near future may be ever more urgent
for determining effective countermeasuresagainst crimes related to the computer
network.
Fragmentary replies can now be foundin the United Nations trade and criminal
law. They have the form of various
recommendations. Regarding drug related
40“The fact that no laundering operation has been
identified to date may mean that the appropriate
services lack the necessary means and capabilityof detection” (FATF Annual Report 1997-1998,
para. 7 <http://www.oecd.org/>).

110TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
crimes, there are the recommendations andtreaty provisions of the 1988 United
Nations Convention against Illicit Trafficin Narcotic Drugs and Psychotropic
Substances (the 1988 Convention). In the“Model Law on Electronic Commerce,” theUnited Nations Commission on
International Trade Law (UNCITRAL)
defined “data message” as “information
generated, sent, received or stored byelectronic, optical or similar means,including, but not limited to, electronic
data interchange..., electronic mail,telegram, telex or telecopy” (art. 2 (a))41.
The provisions of the 1988 Convention
oblige each party to adopt such measures
as may be necessary to enable theidentification, freezing or seizure of any
item which constituted either
instrumentalities of incriminated acts ortheir proceeds for the purpose of eventual
confiscation (art. 2). “Proceeds” means any
property derived from or obtained, directly
or indirectly, through the commission of an
offence covered by the Convention.
“Property” means “assets of every kind,
whether corporeal or incorporeal, moveable
or immoveable, tangible or intangible, andlegal documents or instruments evidencing
title to, or interest in, such assets” [art. 1(p), (q), respectively, italics added]. The
draft United Nations convention against
transnational organized crime (UNTOC)
extends such provision to all other offences
to be covered by it. However, in art. 2b itlumps in the definition of “proceeds ofcrime,” “property” which in tangible orintangible form is “of any description,” asin the 1988 Convention.
Both instruments also empower State
Party’s courts or other competentauthorities to order that incriminated
41

UNCITRAL Model Law on Electronic Commercewith Guide to Enactment 1996, United Nations,
New York 1997.

bank, financial or commercial records bemade available or be seized (art. 5 (3); arts
4. 3 (c) and 7 (2), respectively). The UNTOC
would impose the obligation to retain suchrecords by a financial institution (which
could also be a fund transmitter, casino or
securities dealer) for at least 5 years (art.
4bis (c)). Currently, however, regulationsof the 1988 Convention have no treaty
parallel for commodities other than drugs,
and themselves are no longer regarded as
sufficient. For the time being, model and“soft law” seeks to fill out this gap.
In 1995 the United Nations
International Drug Control Programmeelaborated a “Model law on money
laundering: confiscation and international
cooperation in relation to drugs” (Model
Anti-Money Laundering Law)42. This law
not only deals with the seizure and placing
under seal any plants, substances,
instrumentalities or other things connectedwith a drug offence, but also allows for the
42 This model law responds to the legal needs of civil

law countries. Common law countries may beinterested to use a set of six UNDCP model laws
(bills) on drug abuse, money laundering andproceeds of crime, mutual legal assistance,
extradition, foreign evidence, and witness
protection. All texts are available from the United
Nations International Drug Control Programme(<undcp_hq@undcp.un.or.at>). Before the 1988
Drug Convention, the General Assembly of Interpol
adopted a model legislation which provides for the
temporary freezing of property prior to the filing of
criminal charges. Additionally, the legislation
authorizes the issue of restraining orders,injunctions and other actions upon property which
is deemed to be derived from criminal activity(Bruce Zagaris, The emergence of an internationalanti-money laundering regime: implications forcounselling businesses (in:) Richard D. Atkins (ed.),The Alleged Transnational Criminal. The Second
Biennial International Criminal Law Seminar,
Martinus Nijhoff and International Bar
Association, The Hague 1995, pp. 136-137).

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RESOURCE MATERIAL SERIES No. 55
taking of provisional measures, including
the freezing of capital and blocking offinancial transactions, relating to movebale
or immovebale property suspected of being
used or intended for use in the commissionof a drug offence (arts 26 and 27).
Moreover, the law clearly extends its scope
to surveillance of operations which, without
apparentely being connected with drugmoney laundering, either involve sums
equivalent to US $ 200 000 or are
surrounded by circumstances of unusualcomplexity (art. 9).
FA T F f i l l s t h a t g a p w i t h i t s
recommedations approved later by the
Lyons Summit of 1996. Next year, the same
recommendations were submitted to theUnited Nations General Assembly whichannexed them to its resolution 51/85.
Recommendions welcome the resolve of
FATF to extend criminalization of money
laundering to other serious offences, butalso states that countries ‘‘should consider
adopting legislative measures for...seizureof illicit proceeds from drug trafficking andother serious offences..., as required’’.
Concerning provisional arrangements,
they should include the freezing or seizingof assets, always with due respect for theinterests of bona fide third parties(recommendation 29 and 30).
Regarding the confiscation of illicit
profits, the most elaborate and far reaching
United Nations scheme can be found in the1988 Convention, and the draft UNTOC.
In both, there is an obligation for
confiscation of proceeds, property,
equipment and other instrumentalities
used or intended for use in violation of
specific substantive provisions of bothconventions (art. 5 (a), (b), and 7,
respectively). As the assets fromtransnational organized crime may bedispersed over several countries, thatobligation extends to all such countries,
and not only to a country which has

128

exercised jurisdiction over the offender (UNTOC, arts 4 and 7 (3)).
Model Anti-Money Laundering Law
elaborates in detail on the confiscation ofproceeds and properties. Starting from thepremise that such confiscation is not only
a sanction. It is also “a kind of restitution,
to the community, of property unlawfully
obtained to its detriment”43. Among many
provisions, the Law refers to confiscationof proceeds and property directly or
indirectly from the offence, including
income and other benefits obtained
therefrom; places on the offender theburden of proving the lawful origin of
property belonging to them; leaves it to the
public prosecutor’s office to prove the illicit
origin of property obtained by third parties
from convicted offenders. In cases where
proceeds of illicit origin have beenintermingeled with property acquired fromlegitimate sources, confiscation of suchproperty shall be ordered only up to thevalue, as assessed by the court, of theintermingled proceeds (art. 30).
FATF recommendations state thatcountries should consider adopting
legislative measures for the confiscation
and assets forfeiture, always with due
respect for the interest of bona fide third
parties. Countries should also consider the
introduction of arrangements for theequitable sharing of such forfeited assets(recommendation 30).
V. CRIME AS THE GROWINGINTERNATIONAL SECURITY
THREAT
A. New Security Threat
Inspired by the statement on governance(attributed to the German philosopher
Emmanuel Kant, 1724-1804), that the“establishment of a civil society which
43

Model Anti-Money Laundering Law, op. cit.note
42, p. 20.

110TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
generally administers the law” has been
discribed as “mankind’s most difficult
problem,” the commentators felt that:“[i]n a community of states afflictedwith clashing conceptions of theappropriate ends of law and civilsociety, whose largest arena is amilitary arena of multiplying devices
that promise both infernal destruction
and access to the havens, theestablishment of a society generally
administering law adequately
expressing the deepest aspirations of
the world’s peoples for freedom,security, and abundance - theestablishment, in other words, of aworld public order of human dignity is truly a problem of the most heroic
proportions”44.
B. Redefining Global Security
Conceptually
Two ages after Kant’s statement, andshortly before the outset of the 21st century,transnational crime as an expression of an“uncivil society”, and security, as one of theelements of civil society, have both been
increasingly seen as the two sides of one coin.
New dimensions of security are
emerging. They start replacing the
traditional notion of global security
understood as balancing out military
security by a more, albeit only gradually
surfacing, universal notion of security. A
prominent expert concedes that the initialstage of this development ensues from thetwo inabilities: to establish a global
security scheme by only one super power,
and by all. There is no country in the world,
including the United States, which would
have significant security interests. In
t o d a y ’s v e r y i n t e r d e p e n d e n t a n dheterogenic world, what determines order
44

Myres S. McDougal, Florentino P. Feliciano,
Transnational Coercion and World Public Order,
New Haven Press, New Haven, Martinus Nijhoff
Publishers, Dordrecht/Boston/London 1994, p. 261.

exists in a particular civilization andbeyond it45.
How to define and deal with what is“beyond” is a matter of further
consideration. It has been argued, forexample, that much more atention mustbe given by the United Nations Security
Council to:“the most pressing economic, social,and environmental problems. The
connection between the absence of
democracy, gross human rights
abuses, and the propensity for
aggression and other forms ofinternational irresponsibility was
clearly established even before Iraq’s
attack on Kuwait. The spread of
democracy, and respect of humanrights, are indespensible elements ofa more stable, less violent humansociety, and are, as such, a legitimate- indeed an indispensible
international concern”46.
The Human Development Reportobserves that:“[w]hen the security of people isendangered anywhere in the world, allnations are likely to get ivolved.
Famine, disease, pollution, drugtrafficking, terrorism, ethnic disputes
and social desintegration are nolonger isolated events, confined within
national borders. Their consequences
travel the globe”47.
45

Samuel P. Huntington, The Clash of Civilizations
and the Remaking of the World Order (1996),
Zderzenie cywilizacji i nowy kszatlt ladu
swiatowego (Polish translation of 1997, Muza SA,
Warszawa 1997, p. 227).
46 Brian Urquhart, The UN and international
security after the Cold War (in:) Adam Ck andBenedict Kingsbury (eds), United Nations, Divided
World. The UN’ s role in International Relations,
Clarendon Press, Oxford 1993, p. 97.
47 Human Development Report 1994, UNDP, Oxford
University Press, New York 1994, p. 22.

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RESOURCE MATERIAL SERIES No. 55
The chairman of the U.S. Senate task
force on economic sanctions observes that
his country’s sanctions should balance theU.S. economic interests with the desire topromote “improvements in basic civil
liberties, human rights andnonproliferation, or defeating terrorism,
narcotics trafficking and crime”48. The U.S.
Ambassador to the U.N. extends thisobservation, saying that:“[n]arcotics trafficking,international crime, migrantsmuggling, terrorism andenvironmental degradation...theseare our enemies. The illegal drugtrade and related activities such as
money laundering and terrorism
undermine fragile democratic
institutions, distort economies andhinder long-term growth”49.
Those developments and phenomena are“beyond” the sphere of influence of any one
country. They are out of reach, in tax,
extradition or money laundering havens
from where they threaten the security ofnations by pouring onto them illicit drugs,
aliens and arms, writes another high-level
U.S. official50. Others emphasize that whileearlier, manufacturing and providing smallarms and light weapons was once accepted
as a necessary evil or even welcomed as agurantor of security, nowadays cause
concern that their excessive amounts canhave devastating consequences for global48

Senator Mitch McConnel, quoted in: Thomas W.
Lippman, Clinton seeks authority to waive any
sanctions, International Herald Tribune,
September 10, 1998, p. 3.
49 Bill Richardson, U.S. Ambassador to the UN,
Narcotics Enforcement and Prevention Digest Vol.
2 No 6 (1996), p. 3.
50 Jonathan M. Winer, International crime in the newgeopolitics: a core threat to democracy (in:) William
F. McDonald, Crime and Law Enforcement in the
Global Village, ACJS/Anderson Monograph Series,
Anderson Publishing Co. 1997, pp. 61-62.

130

security51.
C. Redefining Global Security
Legally
Save terrorist bombing, the above
mentioned manifestations of transnational
crime have not yet been legally embracedby the resolutions of the United Nations
Security Council within the concept ofglobal security. However, the General
Assembly, in the aforementioned “United
Nations Declaration on Public Security,”
undertook steps to redifine global security.
Several illicit trafficking activities (illicit
trafficking in drugs, firearms, humanbeings, laundering of proceeds from serious
crimes) have already been declared by theGeneral Assembly as endangering “thesecurity and well being of citizens and all
persons” (art. 1). Looking into other official
records (statements) of or for the Security
Council from the above group Statesponsored or convieved acts involving illicit
drug trafficking, illicit arms trafficking, butalso corruption (art. 10) may fall under theredefined concept of global security52.
As noted, and as of this writing, there
was only one case of Council’s involvement
in one possible type of transnational crime51

Michael Renner, Curbing the Proliferation of
Small Arms (in:) Lester R. Brown et.al., State of
the World 1998. A Worldwatch Institute Report on
Progress Toward a Sustainable Society, W.W.
Norton & Company, New York-London 1998, p. 148.
52 For an interesting review of the question of thetransnationalization of corruption, see: Michael
Jonson, “Cross-border corruption”. Points ofvulnerability and challenges for reform, and Susan
Rose-Ackerman, Corruption and the global
economy, both published in: United Nations
Development Programme, OECD Development
Centre, Corruption. Integrity. Improvement.
Initiatives in Developing Countries, Sales number
E.98.III.B.18, United Nations Development
Programme, New York 1998, pp.13-24, and 25-44,
respectively.

110TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS- t e r r o r i s t b o m b i n g 53. B y a d d i n g“terrorism” to the list of acts which either
are “a threat to international peace andsecurity” (apartheid,54 internal conflict) or“a breach” thereof (aggression 55 ), theSecurity Council broadened theinterpretation of the above quoted notions,and opened the way for possible
considering other international crimes orviolations as threatening or breaking peaceand security. Currently, the catalogue fromwhich the Security Council may draw thesecrimes extends to 26 types56.
On the occasion of passing other
resolutions, various declarations and otherstatements were made either by theCouncil itself, its President or the
Secretary-General, which included
references to illicit drug and arms
trafficking, violence, banditry, etc. Thosereferences or developments provided a partof the entire factual and legislative context
in which the Council imposed sanctions on
target States.
For example, in 1997, after adoption of
the resolution concerning Afghanistan, thePresident of the Council noted that human
53

Against Libya to surrender two Libyan nationals
suspected of terrorism and to renounce all formsof terrorist action (S/RES/748 (1992) of 31 March
1992, and S/RES/883 (1993) of 11 November 1993).
54 Against South Rhodesia to bring to an end therebellion in Southern Rhodesia (S/RES/232 (1966)of 16 December 1966; S/RES/253 (1968) of 29 May
1968), and South Africa to end violence against
the African people and neighbouring States (S/RES/418 (1977) of 4 November 1977). However,
the treaty notion of apartheid first was used in1965 in the Convention on all Forms of Racial
Discrimination, and does not appear in the two
first resolutions.
55 Against Iraq to restore the sovereignty andterritorial integrity of Kuwait (S/RES/661 (1990)of 6 August 1990, S/RES/670 (1990) of 25
September 1990, S/RES/687 (1981) of 3 April 1991.

suffering and material destruction there
threatens to lead to the disintegration of
the country and “represents a growing
threat to regional and international peaceand security”. He stressed the Council’s
concern about mass killings of prisoners of
war and civilians in Afghanistan, and thelooting of United Nations premises andfood supplies. He reiterated that, in theopinion of the Council, the continuation of
the conflict in Afghanistan provided afertile ground for terrorism and illegal drug
production and trafficking which
destabilize the region and beyond57. The
Secretary-General observed that concerned
parties must be held responsible forexacerbating the conflict, which alreadywas spreading beyond the borders of
Afghanistan, posing a serious threat in the
shape of terrorism, banditry, narcotics
trafficking, refugee flows, and increasing
56

While there is no definitive list of such crimes,
expert classification includes the followinginternational crimes : genocide, aggression,
slavery, torture, apartheid, war crimes, crimes
against humanity, crimes against the United
Nations and associated personnel, unlawful
possession, use or emplacement of weapons, theftof nuclear materials, mercenarism, unlawful
medical experimentation, piracy, unlawful acts
against the safety of maritime navigation and thesafety of platforms on the high seas, aircraft
hijacking, threat and use of force againstinternationally protected persons, taking of civilian
hostages, unlawful use of the mail, falsification andcounterfeiting, destruction and/or theft of national
and archeological treasures, unlawful acts against
certain internationally protected elements of theenvironment, unlawful interference withinternational submarine cables, internationaltraffic in obscene publications, bribery of foreign
public officials, drug offences, and terrorist
bombing (see further: M. Cherif Bassiouni,
International Criminal Law Conventions and theirPenal Provisions, Transnational Publishers, Inc.,
Irvington-on-Hudson, New York 1997).
57 Presidential Statement S/PRST/1997/55.

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RESOURCE MATERIAL SERIES No. 55
ethnic and sectarian tension58.
References to various forms of crime
either in the Council’s resolutions or
justifications thereof, are certainly notcoincidental. There seems to be an
emerging agreement that the concept ofglobal security should gradually embrace
select forms of international andtransnational crime.
VI. UNITED NATIONS AGAINSTCRIME IN THE 21ST CENTURY:
NEW DIMENSIONS OF
INTERNATIONAL COOPERATION
A. Global Economy and Crime
The above examples of crime, as dealt
with by the Security Council, point strongly
to ramifications it has to the security ofnations. Traditional transnational (andinternational) crime, like trafficking in
narcotic drugs has been for a long time aworldwide concern. And so terrorism,
which, because of its original political orpoliticized nature, has only recently started
entering the classification of “international
crime”, has entered the Council’s agenda59.
As helpful as defining certain activity as
international crime or transnational crimeis, there are overriding issues which may
drive discussions on redefining global
security ahead of other considerations.
Two crime issues, partly interlinked,
may contribute to further focus on
globalization of the notion of security. First,
the spread of economic crime across theworld. The global economic recession
looming in 1998 prompted some experts toargue that international criminal cartels
58
59

Press Release SC/6453.
In its resolution 51/210 of 16 January 1997 on“Measures to Eliminate International Terrorism,”
the General Assembly noted the risk of terrorists
using nuclear, biological and chemical agents, andinvolving electronic or wire communications
systems and networks to carry out criminal acts.

132

could easily arrange the concerted
withdrawal of US $ 10-20 billion in “black”
money from a single market economy.
“With the threat of such a financiallydevastating blow, they would be able toextort entire countries”60. Second, is thegrowing computerization of economictransactions. To underscore their actualand potential scope, one may reemphasizethat what is now 100 % of all available dataand information in the world, will
represent only 5 % of that available in 50
years, and add that the functional
equivalent of the progress in information
technologies made over past 500 years(from the first printed book until today’s
computer) now will probably be repeated
ten times faster in the next 50 years61.
Helpful as computer networking is, it isalso a powerful and increasingly dominantmedium to create, more easily than before,a fictitious (virtual) basis for brass-platebanks, anonymous trade corporations andother commercial firms62.
B. Progress in Legal Assistance(i) Mutual Legal AssistanceIn the face of computerized
information quickly becoming a new“global commons”, the international
criminal justice community is notprepared to prevent and control crimeon and abuse of computer networks,
let alone transnational crimecommitted with traditional methods.
Presently, only about one third of
most industrialized European
countries have criminalized
60

Expert statement (in personal capacity) by Vito
Tanzi, International Monetary Fund at the press
conference on 10 June 1998 (United Nations, DPI/
1452, Development Update # 24, July-August1998).
61 S.L. Armanathan, op.cit. note 14.
62 Pino Arlacchi, Under Secreatry-General, United
Nations Office at Vienna, at the press conference(DPI/1452, op.cit. note 60).

110TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
unauthorized access to data or
information, which, by and large,
makes such penetrations still
legitimate63. Consequently, mutual
legal assistance is, in principle,
possible only when, in both therequesting and requested country theact in question is criminalized.
(ii) Bilateral Extradition
Other facets of legal assistance,such as bilateral extradition treaties,
have not caught up with thenecessities resulting fromglobalization and informatization. In
the 19th and the 20th century,
available data shows that 112
bilateral extradition treaties wereregistered and published in the
League of Nations Treaty Series. The
first 550 volumes of the United
Nations Treaty Series (1945-1964),
contain texts of 50 extradition
treaties. In making a very roughestimate of valid treaties at the
beginning of 1970s, one commentator
hazarded a figure below 500 for still
functioning old (the 19th-20th
century) extradition treaties, andabout 1000 for others, unregisteredand registered with the United
Nations Secretariat64.
Against this total estimate of 1500
bilateral extradition treaties, thesame expert assumed that if every
Member State of the United Nations
were to be linked with every other(and at the time of that writing there
were 120 Member States) through63

Doc. CDPC (97) 5; PC-CY (97) 5, Council of Europe,
European Committee on Crime Problems,
Implementation of Recommendations No. R (89) 9
on computer-related crime, Report prepared byProfessor Henrik W.K. Kaspersen, Amsterdam,
February 1997.
64 Shaffer, op.cit. note 7, p. 37.

bilateral extradition treaties,
theoretically, there could have beenno less than 14 000 of such treaties.
However, since extradition problems
were also dealt with throughmultilateral conventions, regionalarrangements secured by reciprocal
legislation, and by reciprocal practiceof extradition, that magnitude would
have been less. Such qualified
estimates look pale against thedevelopments in the 1990s.
According to the United Nations
database, 131 current Member States
on which data was collected had,roughly, 900 various legal assistanceinstruments. This amount consistedof no less than 525 bilateralextradition treaties, including 65
supplementary extradition
agreements, 174 mutual legal
assistance treaties, and 142
instruments against the struggle ininternational narcotic drugs, plus a
number on the transfer of foreignprisoners 65. Again, if all Member
States (185 at writing) were to belinked by bilateral extradition
65

Judicial assistance treaties may also containextradition provisions. For a fuller review of thevariety of extradition arrangements, see: United
Nations Crime and Justice Information Network(UNCJIN), <http://www.ifs.univie.ac.at/~uncjin/
extradit/extindx.html>. Out of the total known
number of 525 existing bilateral extradition
treaties, including supplementary agreements, atleast 148 (28 %) were signed by the U.S. alone (or38 % of all such instruments in the developed
world). In construction of this database thefollowing sources were consulted: the United
Nations Treaty Series, the Treaties in Force: A Listof Treaties and Other International Agreementsof the United States on January 1, 1994 (TIAS,
1994), The Cumulative List of and Index of Treaties
and International Agreements: Registered or Filedand Recorded with the Secretariat of the United
Nations - December 1969 December 1974, (1977).

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RESOURCE MATERIAL SERIES No. 55
treaties, there would have been noless than 34000 of them. This seems
to be, if not indeed is, pure nonsense.
C. New Approaches(i) Multilateral Legal Assistance andExtradition Provisions
Another approach is needed, which
is now being advanced in drafting the
aforementioned United Nations
convention against transnationalorganized crime. This draft
convention is to cover quite a broad
spectrum of legal assistance andextradition matters invloving more
effective investigation, prosecution
and adjudication of acts recognizedby it as crimes, including illicit
trafficking in and manufacturing of
firearms. The draft may provide legal
answers to some of the questions
ensuing from the case study of Mr.
J.D., but also goes beyond. However,by and large, legal assistance andextradition matters have been
approached in a generic manner,enabling coverage of the widest
possible list of transnationalorganized crime cases, as determinedby the convention itself.
The original draft started with aprovision for considering entering
into bilateral and multilateralagreements, including direct
cooperation between State police
agencies and common operations in
the territory of each Contracting
State (art. 11)66. However Member
States’ observations andcommentaries which the draft
convention evoked, suggest that in
66

Doc. E/1997/30, Draft United Nations Framework
Convention Against Organized Crime, Commission
on Crime Prevention and Criminal Justice. Reporton the Sixth Session (28 April-9 May 1997), Annex
III, p. 14.

134

dealing with the provision on interState cooperation, there should bejoint teams and other arrangements
established for “electronic
surveillance, undercover operations
and controlled deliveries with a viewto gathering evidence,” including“when appropriate, necessary items
or quantities of substances foranalytical or investigative purposes”(art. 19 (c), (d))67. The Netherlands
added to this a proposal thatconvention “States Parties...shallconsider...analyzing trends inorganized crime...as well as thecircumstances in which organizedcrime can operate, the professionalgroups involved and thecommunication technologies” (art. 20(2))68. Supportive of this approachwere Latin American criminal justice67

In favour were also Argentina, Australia, Belarus,
Bosnia and Herzegovina, Brazil, Canada, Chile,
Colombia, Czech Republic, Finland, Greece,
Guatemala, India, Italy, Japan, Mexico, Morocco,
The Philippines, Quatar, Repubic of Korea, Saudi
Arabia, Slovakia and Turkey. This was reiterated
later by the U.S. in doc. E/CN. 15/1998/5,
Commission on Crime Prevention and Criminal
Justice, Report of the Meeting of the Intersessional
Open-ended Intergovernmental Group of Expertson the Elaboration of a Preliminary Draft of a
Possible Comprehensive International Convention
against Organized Transnational Crime (2-6
February 1998, Warsaw, Poland), sec. III. 19 (d)and (e). Such an approach will influence
investigative techniques of cooperating countries
to the point of possible later harmonizing
evidentiary requirements for admission of evidence
by respective courts. For a review of judicial cases
in which U.S courts assessed legality of joint team
operations with a number of countries, see: Richard
Downing, The domestic and international legal
implications of the abduction of criminals fromforeign soil, Stanford Journal of International Law
Vol. 26, No. 573 (1990), p. 107.
68 Doc. E/CN. 15/1998/5, Ibid, sec. III, 20.2.

110TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
ministers, and senior experts of thegroup of eight leading industrializedcountries (P-8, now G-8)69. States, inturn, suggested restrictions on suchforms of inter-state cooperation
dictated by sovereignty and be selfdetermination (Mexico), and humanrights requirements70. The lattershould also generally apply tointernational criminal law
enforcement, including exchange ofcriminal records, suggested in thedraft, and be understood as
information not only on previous
conviction(s), but criminal
investigation and prosecution as well
(Australia). Interestingly, in cases
where double criminality
requirements cannot be observed(e.g., lack of criminalization of
hacking in the requested State, andthus no obligation to provide noncriminal information and/or
evidence), some States were
proposing that mutual legal
assistance should nevertheless berendered, in the interest of more
effective and efficient internationallaw enforcement (Russia) 71. The
proposed texts speaks of an obligation
to render such assistance without therequirement of dual criminality,
unless the assistance required
unvolves the application of coercive
measures (art. 14.6). However, a69Doc. E/CN. 15/1996/2/Add.1, Regional MinisterialWorkshop on Follow-up to the Naples Declaration
and Global Plan of Action against OrganizedTransnational Crime (Buenos Aires, Argentina, 2730 November 1997), Report of the SecretaryGeneral, recommendation No 14; doc. E/CN. 1997/30, Senior Experts Group Recommendations,recommendation No 26.
70 Proposed by the Intergovernmental Expert Group
Meeting on Extradition (doc. E/CN. 15/1997/6,
recommendation No 29).
71 Doc. E/CN. 15/1998/5, sec. III, 14.14.

counterproposal under the revised
United Nations Model Treaty on
Mutual Assistance in Criminal
Matters, states that “[c]ountries may
also consider restricting therequirement of double criminality tocertain types of assistance such as
search and seizure” (art.4)72.
(ii) Preservation of the Integrity of
Evidence
Preservation of the integrity ofevidence is essential for compliancewith the principle of accuracy of data,
as inaccurate or incomplete records
shared, may lead to suppression ofevidence by the court of a requesting
State, if not to violating fair andhumane trial.73
In case of evidence gathered
through electronic surveillance andshared internationally, preservationof its integrity is an extremely
difficult process, starting with theneed to assure that, a file
documenting fraudulent electronic
72

Doc. E/CN. 15/1998/5, Add. 1, Report of theIntergovernmental Expert Group Meeting on
Developing and Promoting the Efficiency of
Mechanisms in International Mutual Assistance
Practice (Arlington, Virginia, USA, 23-26 February1998), Annex I. The proposals from that report, as
reviewed and recommended by the Commission on
Crime Prevention and Criminal Justice, have been
forwarded by the Economic and Social Council for
action of the General Assembly.
73 Those guidelines, adopted over the period 19801995, could be found in the the Privacy
International Archive: <http://privacy.org/pi/
g o p h e r / f t p c p s r. o r g / c p s r / p r i v a c y /privacy_international/>. See also: Christine vanden Wyngaert (ed.), Guy Stessens (ass. ed.),International Criminal Law. A Collection ofInternational and European Instruments, Kluwer
Law International, The Hague/London/Boston
1996, p. 599.

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RESOURCE MATERIAL SERIES No. 55
banking transactions for example,
does not contain erronous ormaterially false information
accidentally generated by thecriminal justice agencies handlingthe data files. Of course, States are
required to act in “good faith,” butnegligent handling of electronic files
may tremendously complicate
admitting such questionable evidence
into trial. As there are only very
nascent internationally standardized
encryption and decryption
procedures for dealing with electronic
evidence, this risk cannot be
underestimated74.

Specificity in collecting andmaintaining criminal records canbe interpreted more broadly in two
ways. First, so as to cover otherpotential criminal activities towhich ongoing investigation may
be not central. Secondly, also as adisclosure abroad, as far as theobtaining information on suchactivities by other countries isconcerned. It seems, that if theprinciple of equal protection ofdata (in its transborder flows) isobserved by the requesting andrequested State, re-interpretationof the principle of specificity tocover foreign criminal
investigations would be consonantwith the international
recommendations in this regard.
H o w e v e r, t h e c o n s t i t u e n c yreceiving information will be
wider.

(iii)Preservation of the Privacy of
Evidence
The problem of preservation ofprivacy of a suspects’ records
continues to be felt by the law
enforcement community as
hampering the effectiveness of theircriminal investigations. It also alerts
courts and entire human rights
community from the, at times,
opposing rule of law perspective. The
U.S proposal, made in the context of
discussion over the draft United
Nations framework convention,
called for establishing andmaintaining “channels ofcommunication between thecompetent authorities, agencies andservices to facilitate secure and rapid
exchange of information concerning
all aspects of the offences set forth in
this Convention, including, if theStates Parties concerned deem it
appropriate, links with othercriminal activities.”

This is important the in the caseof collecting and sharing electronic
records, which would clearly comewithin the purview of such a
proposed regulation. Experts
emphasize that there will be a
growing conflict between therequirements of privacy, andrequirements to collect data inlawful and fair ways. Solutions
found to deal concurrently withthose requirements,
recommended by the UN
Guidelines and otherinternational instruments will
influence the ways and means ofcombating the increasing dangerof organized crime and terrorist
acts75.
75

74

Recommendation of OECD concerning guidelines
for cryptography policy, 27 March 1997 <http://
www.oecd.org.dsti/sti/it/index.html>.

136

Doc. E/CN. 4/1997/67, Commission on Human
Rights, Question of the follow-up to the guidelines
for the regulation of computerized personal data:report of the Secretary-General prepared pursuant
to Commission decision 1995/114, para. 18.

110TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
D. Ingenuity of Lawmakers andCriminals
Criminals used to be always ahead of thelawmakers, as much as thieves ahead ofpolicemen. Sometimes lawmakers andpolicemen catch up with the criminal
underworld by making the laws more
flexible, with due regard to the rights ofoffenders. For example, the Presidential
decree in Brazil enabled money raising tofight illicit drug traffcking, mostly destinedfor Europe and the United States, byauctioning seized assets before theconfirmed conviction of alleged traffickers.
The seized 100 hundred planes, 200 trucks
and several hundred cars, which would
have otherwise depreciated in value
awaiting valid conviction, can now be
autioned. In case of a suspect foundinnocent, the value of any assets seized
and sold will be reimbursed76.
Another innovation is proposed by thedraft UNTOC which encourages State
Parties to give consideration to the sharing
the value of confiscated proceeds andproperty among themselves, as well as
contributing them to intergovernmental
bodies specializing in the fight againstorganized crime (art. 7 (5)). Finally, andas already suggested in the “Model AntiMoney Laundring Law,” the draft provides
that a State Party may consider putting
on to the alleged offender the onus of proof
concerning the lawful origin of alleged
proceeds of crime or other property liable
to confiscation (art. 7 (7)). This innovation
would have to undergo scrutiny in the lightof domestic constitutional and other legal
principles, and by human rights experts ingeneral.
However, more often, it is the criminal
underworld that is more ingenius than thecriminal justice community. For instance,76

Narcotics Enforcement and Prevention Digest, Vol.
4 No. 17 (1998), p. 9.

in cases of telemarketing and Internet
schemes which involve selling foreign
currencies, investments in high-risk penny
stocks, gourmet coffee shops, and evenostrich farms77. Presently, international
policing of the Internet is far behind suchingenuity (as admitted by FATF).
Another example involved an Ukrainiancriminal group based in California, U.S.A.,
which cracked mathematical codes ofassigning new vehicle identification
numbers (so called “VINs”) of car
manufacturers. The group was able tocreate their own “VINs” that could makethe stolen car appear as if had just rolled
off an assembly line. The cars, the total
value of which was estimated at US $ 10
million, ended up in Central America,
Russia and Ukraine 78 . German car
manufacturers finalized projects for tracingcars’ routes through satellites79. One may
imagine that organized criminals would
illegally access satellite
telecommunications systems, in order toobtain control over cars’ locations and theirpossession. In an attempt to cut financial
losses because of pirated computer
programmes, software manufacturers haveconsidered replacing compact disks with ashareware service offered to end users via
the Internet. One may concede that theftof intellectual property will become moredifficult, but will it be eliminated ?
Many of the new forms of crime employ
or will employ computer or satellite
technology, which in its various forms isincreasingly intermingled and contributes
77

Authorities cracking down on gambling investment
fraud, Organized Crime Digest, Vol. 19 No. 6(1998), p. 7.
78 Warren Richey, World’s cops rev up strategies tonab cross-border car thieves, Christian Science
Monitor, 4 December 1996.
79 The Reuter European Business Report, 2
December 1996.

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RESOURCE MATERIAL SERIES No. 55
to the generic term of “information
technology”. There is little doubt that theinternational community will also resort tonew forms of crime control80. However, it
is not technology itself which will
dramatically improve international
cooperation. In fact, if present trends intechnological applications continue, the“great divide” between developed anddeveloping countries will also stay on.
Transnational abuse of the Internet may
affect countries with weakertelecommunication infrustructures. Poorer
protection gives way to penetrating
computer networks in developing
countries, which are unprepared to face the
new challenge.
VII. CONCLUSION
The potential of transnational crime togrow is very considerable and so are theillicit profits. This paper showed cases oftransnational crime, increasingly legallyand technically complex and in various
dimensions. They are off and on the
ground, in cyberspace and outerspace. All
call for finding commensurate, consolidated
and effective countermeasures, in the wakeof the growing international security threatsuch crime poses. More concerted andcomprehensive efforts on the search,
seizure and confiscation of illicit profits isstill required.

80

First inroads in using space technology for control
of transnational crime have already been made.
See, for example, Panaiotios Xefteris and Maurizio
Fargnoli, Using small satellite constellations totrack and monitor the illicit trafficking in weaponsand sensitive technologies, (in:) Péricles Gasparini
Alves, Daiana Belinda Cipollone (eds), op. cit., pp.
178-194; and B. Jasani, Relevance of outer spacecapabilities to international security (in:) N.
Jasentuliyana and K. Karnik, Space Futures andHuman Security, United Nations Office for Outer
Space Affairs, Vienna 1997, pp. 21-27.

138

For attaining significant progress infighting transnational crime there must bea strong commitment among States,
officials and others involved in combating
it. If there is a new common international
enemy, and crime in its new dimensions
gradually assumes this position, there will
also be such commitment. With it, theinternational criminal justice community
will be able to quickly finalize a draft
United Nations convention against
transnational organized crime. Later, it
can move on to develop new accessory,
flexible and ingenious instruments which
may help in the 21st century to bettercounteract crime related to computer
networks.