Towards a New Framework in the Law of War: Incorporating Transnational Organised Crime
Paulose, Regina Menachery, University of Western Sydney Law Review
This article will focus on why transnational organised criminal groups need to be incorporated into the law of war paradigm. States work under the continued assumption that wars are fought only between two parties. This 'us versus them' mentality obscures multiple parties that truly participate in war. This article will suggest that transnational organised crime groups participate in war thereby creating a third party on the battlefield because of their contributions before, during and after conflict. This article will explore how transnational organised criminal groups have positioned themselves to be allies to terrorists during conflict and how they benefit from regime changes in order to gain control at a later stage. This article will conclude with a discussion on how transnational organised crime groups could be classified as combatants in international humanitarian law, so that efforts to counteract their impact can be handled under more than one framework.
Terrorism and organised crime are considered two distinct categories within criminal law. Terrorism is addressed both in international criminal law and in international humanitarian law ('IHL') because most terrorist attacks are considered 'armed attacks'. (1) This is different from organised crime which is analysed through domestic criminal law or transnational criminal law. (2) The changing portrait of organised crime in the 21st century has led to a growing amount of scholarship which has started to explore whether terrorism and organised crime networks have potential links. While Hubschle argues that there is a lack of empirical evidence to determine whether this relationship exists and how this alliance would function, (3) there is a growing concern that these groups are in fact working together and are even adopting each other's motives to achieve multiple aims. (4) With this in mind, it is clear that IHL would invoke potential military responses towards terrorists, the same should hold true for organised criminal groups who willingly participate in war.
This article critiques the rigid framework that is applied to handling organised crime. This article examines situations where organised criminal networks contribute to war. Since nation-states have been willing to apply IHL to terrorists and classify them as unlawful or enemy combatants, can the same analysis hold true for organised criminal groups? This article will explore these questions by first examining the rise of global crime then detailing situations in which terrorists and organised criminals have and are working together. Finally, this article will discuss why it is necessary to consider the true role of organised crime within IHL by moving beyond the traditional criminal law framework.
II GLOBALISATION OF CRIME
The global crime agenda emerged 'more than 50 years ago within United Nations rhetoric as a social issue.' (5) Since garnering the attention of the global community, various bilateral treaties have been formed to address global criminal activity, which culminated in the two largest multilateral treaties to address crime: the United Nations Convention against Corruption ('UNCAC') and the United Nations Convention against Transnational Organized Crime ('UNTOC'). (6) While organised crime is not a new phenomenon, (7) the reaction by the international community towards organised crime is not unfounded. The projected trend between now and the year 2025 is that the power of non-state actors, (8) such as businesses and criminal networks, will increase with 'relative certainty'. (9)
The rise of criminal networks can be attributed to the presence of unstable states and resource scarcity, although organised crime does have a presence in stable states. (10) Instability, however, allows organised crime to 'flourish' as they do not have 'solid legal, administrative frameworks to regulate licit and illicit markets.' (11) Further, corruption 'fosters the ideal environment' for organised crime. …