Historical Cases of Transnational Crime
Over the pastcentury, we have witnessed the internationalization of criminal law by way of internationaltreaties and domestic legislation. Changes are due in large measure to advancesin technology, international developments, and changes in moral attitudes inEurope and the United States and have led to the development of new criminallegislation under conditions wherein a highly interventionist state is promotedto police the illegal sectors.
Furthermore,these shifts in policy priorities often resulted from changed internationalconditions and changes in moral attitudes and domestic interests. This sectionfocuses on three examples where enforcement against transnational crimedeveloped as a result of changed political, economic, and moral circumstanceswithin states. The cases examined here are slavery, piracy, and smuggling.
Slavery as a TransnationalCrime
The crime ofslavery has existed since antiquity. Slaves helped build the Parthenon inAthens and the Coliseum in Rome. Large slave markets existed in the cities ofChios, Rhodes, Delos, and Ephesus. Although there was some opposition to theinstitution, many, including such well-known figures as Aristotle, defended it.
Slavery largelydisappeared for almost a millennium from the European continent but once againreemerged after 1500. The conquest of the Americas in the 16th century promptedthe demand for slaves in the New World. The first European power to givepermission to transfer slaves was Spain under King Ferdinand. The Portuguese,Dutch, French, and British soon followed with their own legislation. In 1672,the King of England granted a charter to the Royal African Company permittingthe company to deal in slaves. By the end of the 17th century, the slave tradewas considered not only a lawful but desirable branch of commerce, aparticipation in which was made the object of wars, negotiations, and treatiesbetween different European states.
However, the growingcommercial and military might of the United Kingdom in the 18th and 19thcenturies, coupled with its embrace of new economic ideas and its reducedcommercial need for slaves, resulted in the change in course of the Atlanticslave trade. This process began inside British civil society, which enjoyedrelatively greater press freedom than elsewhere, and by political and judicialdecisions of the period. In London, books and pamphlets appeared condemning thepractice of trade in African slaves, leading to changes in attitudes among thepolitical and economic elite, and among the population in general. A pivotalmoment was the Quakers' transformation from participants in the slave trade tostrong opponents. Groups such as the Anti-Slavery Society became driving forcesin Britain of the day.
In 1807, theBritish Parliament made the slave trade illegal at home. However, Britainformally banned slavery in its colonies only later on—in British West Indies in1838 and British India in 1843. Once having criminalized the institution in itsown empire, the British used its diplomatic and military resources to banslavery elsewhere, employing its warships in the 1840s as an international policeforce to suppress the slave trade globally and signing bilateral agreementswith numerous states to search vessels for slaves at sea (the United Statesremained an exception). Brazil, one state that resisted British demands in thefirst half of the 19th century, had its ships seized and burned in its harbors.
Britain alsoused its clout to bring about recognition of slavery as an international crimeas part of various 19th-century treaties. At the Congress of Vienna of 1815, adeclaration was signed that condemned slavery, although the declaration did notinclude practical enforcement mechanisms to bring about the abolition of theslave trade. The Congress of Verona of 1822 also included a multilateralcondemnation of slavery, as did other treaties signed in 1841 and 1862.However, the international treaties alone did not result in slavery'sabolition.
Other countries laggedbehind Britain in this regard. Most of the states of the United States hadpassed laws against the institution before the onset of the Civil War, butthese were not enforced with any rigor. Moreover, the Act to Prohibit theImportation of Slaves into Any Port or Place Within the Jurisdiction of theUnited States was signed into law by President Thomas Jefferson in March 1807and went into force in 1808. Yet the Times of London reported in 1846 that NewYork City was the greatest slave-trading market in the world. In short,governments either continued to be directly involved in the slave trade or elsetacitly encouraged or approved of the trade.
The end ofsupport for slavery by European governments and by the United States in thelate 1800s and early 1900s had less to do with international treaties anddomestic norms in place than with changes in domestic political and economicinterests and changes in moral attitudes, which saw a growing chorus ofopposition to the institution in Britain. Following this shift on the partfirst of Britain and then of other European powers and the United States, the20th century witnessed a slew of new international laws adopted to underpin themoral shift against slavery. These included the Geneva Convention and the 1984Convention against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment by the U.N. Commission on Human Rights.
Piracy as a TransnationalCrime
Like slavery,piracy was employed by both nation-states and private actors for economic gainand has also been criminalized under international and domestic laws. Also likeslavery, piracy is a phenomenon that has existed since antiquity. It was thesubject of Homeric poems, which labeled it as a significant criminal activity. Thecreation of the Delian League in 478 b.c. was motivated by a collective concernover piracy. Moreover, under the leadership of its most famous general, Pericles,Athens and other Greek city-states issued a decree aimed at combating piracyand ensuring the safety of the seas. Pericles got approval from other Hellenicstates for naval operations against pirates. Sparta, on the other hand, usedpiracy as an instrument of state policy to weaken its nemesis Athens,supporting raids on the coast of Attica.
Piracy remainedan enforcement challenge as well as a tool of state policy for continentalEuropean powers of the Middle Ages. On one hand, European countries had tocontend with raids by the Mediterranean Corsairs on their islands and of theirshipping. On the other hand, they also turned pirates to their advantage. Sincethe 1200s, the British Crown supported privateering, employing private seavessels to assist in its attacks on France. In 1243, Henry III issued privateercommissions, whereby the king would receive half the proceeds from theseadventurers.
After 1500, with Spain inthe ascendancy in Europe, the British overtly encouraged individual piratessuch as Francis Drake and others. The naval competition that existed betweenSpain and Britain at the time, and Britain's concern over Spain's accumulationof treasures and territory in the Americas, led to a rise in acts of piracy.Although piracy was deemed a criminal act by most European countries at thattime, the British policy of encouraging piracy saved the country militaryresources and allowed the British to avoid direct confrontation with thepowerful Spanish Empire.
In general,most countries cooperated with pirates at various times in exchange forportions of their treasure. For example, the French government told itscolonial governors on its islands not to interfere with pirates and to offertheir ships safe harbor in exchange for a percentage of their goods. TheBritish admiralty instructed Britain's colonial governors and British navalships to do the same, offering assistance under the Crown. The United States inthe 1800s also offered sanctuary for pirates in exchange for their treasures.Charleston, South Carolina, for instance, offered safe passage in exchange forgoods. Furthermore, the French and English Crowns, and many of the nobility,invested in many pirate ventures, with Francis Drake, England's most famous,receiving a knighthood for his services by Queen Elizabeth I.
Changing moralattitudes and political circumstances in the late 19th century made piracy andprivateering a less attractive tool of state policy and, consequently, made iteasier to enforce domestic legislation and international agreements againstacts of piracy. In particular, the ascendancy of the British on the high seaswas accompanied by more widespread criminalization. In the 19th century, theBritish introduced norms in both the domestic and international spheres. Moreover,there were several naval attacks against pirates by the British, Americans, andDutch, which had the effect of helping to reduce piracy globally over thecourse of the 1800s.
As in the caseof slavery, however, the criminalization of piracy spread gradually, as thebenefits of piracy as a tool of state policy diminished and as commercialinterests saw piracy as more of a hindrance than a help; hence, an end togovernment-sanctioned piracy was seen as a policy to better secure commercialinterests. Moreover, the 19th century witnessed the acceptance of new norms ofcivilized behavior during peacetime, which entailed a moral obligation not toengage in acts of piracy.
Nevertheless,piracy continues to flourish today in certain parts of the world. In particular,the problem is acute in the Far East where small city-states often offer safeharbor to pirates in exchange for goods. The situation has worsened in the pasttwo decades because so many countries, instead of being positive about thedifficulties, tend to be recessive and put forward copious arguments claimingeither there is not a problem or explaining why they cannot do anything aboutit. One recent report by the International Maritime Bureau, which monitorsthese incidents, said that piracy has been rising steadily since 2000. Piracyposes a strong challenge to the international order and may become one of thefaster-growing transnational crimes of the future.
Opium Smuggling as aHistorical Transnational Crime
Like slaveryand piracy, smuggling has existed throughout history and has been employed bothas state policy and by nonstate groups. Smuggling arises because of differentlaws and regulations that govern markets across borders. Whenever the flow of acommodity is controlled or prohibited by one state, it creates an environmentthat favors profits through smuggling. State-sponsored smuggling and statesanctioning of illegal trade have been policies of particular importance forEuropean interests. For instance, illegal trade between Britain and Spain'scolonies was a deliberate British policy in the first half of the 18th centurythat helped bring about the collapse of Spain's hegemony in the New World andSpain's entire commercial framework. Owing to the policies of the governmentand large private British interests such as the South Seas Company, Spanishcommerce to the New World was cut from 15,000 tons a year to 4,000 or less by1737. This caused a decline in profits to Spanish merchants and in revenues tothe king of Spain.
Oneparticularly salient example of state-sponsored smuggling is the illegal tradein opium by the British, which gave rise to the Opium Wars of the 19th century.Beginning in the 15th century, the Portuguese, Spanish, and British sought tobring opium to China to pay for imports of tea, spices, and pottery. TheBritish were most successful at this. Through their government-sanctionedcartel, the British East India Company, and by way of military force, they wereable to establish and maintain lucrative opium markets in China. This policyalso resulted in two wars over opium in the 19th century.
By the 19thcentury, just as the British public turned against the slave trade, the Britishgovernment was establishing an opium market on mainland China in order toimprove its trade balance with the country. Britain's East India Company hadimported large quantities of tea and spices to Britain since the 17th and 18thcenturies, but China bought little in return, creating a huge trade imbalanceover the years. The British introduced an opium market, with opium brought infrom India in an attempt to remedy this trade imbalance. This policy persistedin spite of opium restrictions in Britain itself.
Opium was soonafter declared illegal by the emperor, and the trade went underground,supported by the British and coordinated by Chinese triad gangs. In 1839, theChinese military lay siege to Canton and confiscated British merchant ships. Inresponse, in 1840 a British expeditionary force attacked China, seizing HongKong and making the emperor pay compensation to the merchants. At theconclusion of the First Opium War in the mid-1840s, there was again an upsurgein opium imported into China.
When theChinese government once again resisted British opium trade terms in 1856, a secondopium war broke out. This time Britain was helped by the French, Russians, andAmericans to exploit the militarily weak China. Despite the military victory,however, British control over the opium trade from India to China became lesscommercially lucrative, because an alternative opium source for China, Persia,emerged in the 1870s.
Britain’s lossof their opium revenues and their loss of control over the Chinese opium marketmade it easier for the gradual shift toward criminalizing narcotics at the endof the 1800s and in the early 1900s. This process was led by the United States,principally over the course of the 20th century. Yet within Britain itself,there grew up a strong anti-opium movement, which paralleled in many ways theantislavery movement. Groups such as the Anglo-Oriental Society for theSuppression of the Opium Trade lobbied the government against Britain's opiumexports from India to China, backed by other anti-opium societies and LiberalParty members. When the British Liberal Party won the elections of 1906, theopium trade was ended. It was considered a triumph of moral (religious andhumanitarian) impulses over political and economic interests.
In short, internationaldevelopments— namely, changes to the opium market, coupled with changes tocommercial interests and moral attitudes toward opium trade—resulted in thegradual end to Britain's participation in illegal opium exports to China. Italso led to Britain's support over the course of the 20th century ofAmerican-led antidrug efforts.
In conclusion, whatis common to all three historical cases is that changes in policies toward allthree activities were the result of international developments, as well as theresult of changes in domestic political and economic interests in addition tomoral attitudes. The implementation of new legislation at the domestic leveland new norms and treaties at the international level did not suffice inbringing about international recognition of slavery, piracy, and drug smugglingas transnational (international) crimes. Although the 1990s did not deal withthe criminalization of actions hitherto engaged in by European countries andthe United States, the period did see changes in international circumstancesand domestic political and security interests. In addition, there were changesto moral attitudes concerning what constitutes key security threats— aspolicymakers and law enforcement officials, particularly in the United States,shifted their focus from the battle against Communism toward the battle againsttransnational crime. These factors all contributed to placing transnationalcrime at the forefront of the security agenda.
Changing International Conditions and Priorities in the1990s
As highlightedabove, international developments, changes in domestic political and securityinterests, and changes in moral attitudes helped bring about changes insecurity priorities to Europe and the United States during the 1990s. Indeed,the very language to describe transnational crime was borrowed from the lexiconof the Cold War. Some of the key events of these years include the emergence ofnew states with unstable economic and political structures in Eastern Europe,the development of a common market among European Union (EU) states, and theredefinition of U.S. policy following the demise of the Soviet Union. All theseevents pointed toward the need to develop a new economic, political, andsecurity framework. At the same time, dramatic advances in technology, notablyin the Internet and communications technologies, heightened cross-borderlinkages and made national frontiers seem more permeable than ever. Forpolicymakers and law enforcement officials, the rapidly unfolding events ledthem to replace their commitment to containing Communism with a commitment tocontaining the growing threat of transnational crime.
The collapse ofthe economies of the post-Communist East resulted in increased migration byEastern Europeans across Western Europe's borders. Relatively weak lawenforcement and border controls in the post-Communist states also meant anincrease in corruption and illegal activities, including drug trafficking;alcohol and tobacco smuggling; trafficking in dangerous materials, firearms,and illegal immigrants; money laundering; and corruption. The Balkans wars ofthe 1990s also proved to be the first international political crisis in thepost-Cold War order, as well as a law enforcement concern.
Apart fromunleashing Europe's first war in almost half a century, the Balkans unleashed anew network of criminal activity. The outbreak of conflict in the region, thebreakdown in institutions, and the mass emigration of people from the formerYugoslavia created opportunities for criminals and criminal networks. Organizedcrime was closely linked to the conflicts there.
The instabilityof post-Communist states greatly affected the policies of Western Europe andthe EU. The completion of Europe's single market in 1992 removed barriers tothe movement of goods, services, and peoples across borders, therebyhighlighting the need for tighter coordination in the sphere of criminaljustice. Hence, from the late 1980s onward, the Western European states of theEU attempted to strengthen their own internal institutions to offset thegrowing challenges that emerged in Europe at the end of the Cold War.
Economic andmonetary union remained the most visible priority of the EU during discussionsof the Maastricht Treaty on European Union in 1991–1992. However, policymakersgrew increasingly concerned about the lack of coordination among national lawenforcement agencies to deal with the emerging illegal opportunities thatstemmed from the creation of the customs union and the free movement of goodsand people across borders. Illegal migration and trafficking, as well as moneylaundering, were particularly salient issues. With the increasing numbers ofillegal non-EU citizens, particularly from Eastern and Southern Europe, cominginto Western Europe, there was significant debate in the 1990s concerning thestrengthening of “fortress Europe”. Yet measures to stem the illegal movementof non-EU migrants merely encouraged opportunistic criminals who increasedtheir trafficking in persons into the EU.
Similarly,finance officials from EU governments argued that money-laundering activitieswere expected to proliferate considerably as closer economic integrationensued, in preparation for the launch of the single currency in 1999. Withoutlegislative and enforcement changes to accommodate integration, it would becomeharder for the EU and national governments to track financial transactions.
In response tothese institutional weaknesses, the EU took steps to strengthen its Justice andHome Affairs institutions, the so-called third pillar of the European Union structure,which deals with internal issues in the community. The EU adopted new measuresas part of Title VI of the Maastricht Treaty of 1992. Title VI discussedincreasing cooperation between European states in the area of internationaldrug trafficking, among other areas. At the same time, the European Councilpushed through a proposal to create Europol, the European Police Office,although ratification of the Europol convention had to wait until 1998.Nevertheless, from the early 1990s, European countries gradually increasedtheir cooperation in policing and began harmonizing enforcement policies, aboveall in the areas of money laundering and counterfeiting.
AlthoughEurope's chief political response to the end of the Cold War was thestrengthening of its internal institutions, the only remaining superpowerneeded to outline its new priorities in the post-Cold War “new world order” athome and abroad. The United States needed to reprioritize how it allocated itsresources over the medium term. At this point, new threats and challengesquickly emerged, or were rediscovered, in the 1990s. Prominent among these weredrug smuggling, terrorism, and the growing penetration of internationalorganized crime groups into the United States economy and society.
This shift infocus of the United States, away from its Cold War security interests and moralobligations to contain Communism and toward threats posed by a multiplicity ofdifferent groups and countries ensured that transnational crime emerged frombeing a conceptual consideration and became a central security policy issue.Whereas before the fall of the Berlin Wall, U.S. law enforcement officialsprincipally focused on domestic criminal organizations operating within orclose to its borders, developments in the international system resulted inchanged attitudes and priorities of policymakers and law enforcement officials,leading to a renewed focus on transnational crime.
There is muchevidence of this change in U.S. policy direction in the early 1990s. One exampleis U.S. efforts in drug trafficking. Attempts to combat the international drugtrade by declaring “war on drugs” started in the early 1970s and expanded underthe Reagan administration in the 1980s. There occurred a growing number ofextradition requests in this period, requests rising from 50 per year in the1970s to 500 for the year 1990. Also, the United States began to focus moreattention on producer markets in Latin America. Whereas, in Colombia, between1920 and 1960, the smuggling of marijuana, heroin, and cocaine was notconsidered the jurisdiction of law enforcement, by the 1990s, the country wasunder increasing U.S. pressure to help stem the flow of drugs to the UnitedStates. U.S. dissatisfaction with certain Latin American countries' efforts inthis regard led to an unprecedented “conditional” certification of Colombia,Bolivia, and Peru in 1995— which threatened antidrug assistance to thesecountries if these governments did not do their share to stop the productionand flow of drugs. Subsequently, the United States fully decertified Colombiain 1996.
Another exampleof this shift in its security focus can be gleaned from law enforcement's useof terminology in this period. With the Cold War over, law enforcementofficials began borrowing Cold War terminology to describe the emergingtransnational criminal threats in the 1990s. At a September 1994 conferencegathering in Washington, D.C., of high-level U.S. law enforcement andintelligence officials, organizers chose the title “Global Organized Crime: TheNew Empire of Evil,” while the executive summary of the conference stated, “Thedimensions of global organized crime present a greater international securitychallenge than anything Western democracies had to cope with during the coldwar”.
In sum, in theearly post-Cold War era, Europe and the United States rapidly moved toprioritize transnational crime as a key security issue, both as a consequenceof the economic and political instability in post-Communist Europe and as analternative security strategy following the end of the Cold War. Since thebeginning of the 1990s, a growing number of government resources have beenallocated to transnational crime, more academic research has been devoted tothe subject, and the term has gradually entered the vocabulary and been usedwith greater regularity. In short, the 1990s signaled a shift toward theinternationalization of the concept of transnational crime.