Transnational Crime
This article will look at the endeavours of Pablo Escobar to determine if corruption can be regarded as a transnational crime? If so, how did it attain that status?'
This article will demonstrate why corruption is a transnational crime, through the reference lens of Pablo Escobar’s drug trade during the 1970s and 80s. After giving a background on Escobar and what his drug cartel accomplished, this essay will first set out what a transnational crime is and how it can be legally/academically defined. The same will then be done for the term corruption and the broad academic consensus on it. With this foundation, whether corruption is a transnational crime will be analysed, with reference to how it has been treated internationally. Then, how transnational corruption has operated, as well as what its impacts and effects have been, will be discussed, drawing on how Escobar’s drug cartel operated and the impacts of it from a transnational corruption perspective. Finally a look at how the issue is currently being handled, via being recognized as a transnational issue, will be given. A conclusion will summarize the essays findings.
In the late 1970’s, the notorious drug kingpin Pablo Escobar went into business with Mateo Moreno (a black market chemist), and began commercial production of cocaine in Colombia. Escobar was already a black marketeer of various illegal goods, specifically tobacco and alcohol, transporting them into Colombia against the law at the time. Over the next two plus decades (until 1992), cocaine production in Colombia increased massively, and was being illegally smuggled all around the world. In 1976, Escobar’s Medellin cartel established the first smuggling routes into the US, via the port of Miami on the southern tip of Florida. Despite cocaine’s highly illegal status, Escobar's infiltration into the American market created huge and increasing demand for cocaine, so much so that by the 1980s it was estimated that Escobar smuggled 70 to 80 tons of cocaine into the country per month. This was made possible through the bribing and widespread corruption of Colombian governmental officials (police, politicians, judges), to the point where Escobar was even elected a seat in the country’s congress. The corruption that occurred in his favour in Colombia, gave him the ability produce, sell and transport his illegal goods without hindrance or threat of punishment from the law.
What is a transnational crime
In order to assess corruption as a transnational crime, the meaning of the term “transnational crime” must first be established. Guilfoyle describes transnational crimes as those which are not punishable by international courts or institutions which fall within the jurisdiction of international law[1]. As of present, there is no unanimously accepted definition of ‘transnational crime’[2], however former Secretary General of the International Criminal Police Organization (INTERPOL), Andre Bossard, separated transnational crimes into two categories; cross-border crime and internationally recognized crime[3]. The first category relates to the cross-border movement and interaction of criminal acts, transactions or agents. The second category requires that at the international level, the activity in question be considered a criminal offence by at least two states[4]. This would typically be achieved via regional and international agreements (ratified by multiple states) on the issue. This is a good framework through which to assess corruption as a transnational crime.
What is meant by corruption
The basic meaning of corruption is the abuse of a position of power, manifesting itself in the form of another crime such as bribery or embezzlement. Academics have identified a number of offences which often fall under the umbrella of corruption, most of which are centered on the misuse of funds. Bribery, extortion, fraud, cartels, abuse of power, embezzlement, money-laundering are among these.[5]
In 1996 the Former President of the Republic of Korea, Chun Doo-wan was convicted of corruption following his involvement in the Kwagju massacre of 1980[6]. Years later, his successor was convicted of bribery amounting to several hundred million dollars[7]. From here, significant regional movements against corruption, specifically focused toward the political and public sector, arose out of the Asia Pacific Region. Rashid and Islam identified that corrupt political practices in Japan, Pakistan and Papua New Guinea and others led to regional public uprisings against political corruption domestically[8]. These were all national issues that were settled domestically.
Similarly in Europe, in 1999 a report into corruption and economic crime led to the resignation of the President of the European Commission and all of its Commissioners.[9] This involved the wife’s of Commissioners being paid large salaries while sitting in nail parlors. This scandal intensified the EU’s focus on combatting general corruption both within the institution and individual member states. This was an internationally recognized incident that alerted governments and international organizations to the reality of corruption occurring on the international stage.
Does corruption fit the definitions of transnational crime
The recognition of corruption as a transnational crime began with states criminalizing corruption in corporations which undertook transnational transactions. Guilfoyle defines these offences as those which involve “the pervasion of public administration by bribery or threats of force”, referencing agreed national and international offences[10].
Revelations of corruption across several continents ultimately resulted in increased international consensus of the perception of corruption as a transnational crime. Amongst other things corruption proliferates criminal activity in several ways including by concealing it.[11] In its earliest form, corruption was primarily an issue of bad governance, of corporations and of individual countries. The central position of transnational corporations in corrupt practices in the early to mid-1970s attracted the attention of criminologists. In 1979, Braithwaite wrote, “bribery and corruption by large corporations are most serious forms of crime because of their inegalitarian consequences”.[12] These acts, which were almost always political in nature, perpetuated existing inequalities and were therefore capable of weakening governance at all levels, but rendered already fragile states particularly vulnerable.
To apply corruption to the previously stated categories of transnational crime, namely cross border activity and international recognition by sovereign states, corruption broadly speaking would seem to fit safely within its ambit.
Firstly, in relation to cross border activity, the interaction between corrupt state actors and corrupt corporations, many of which operated transnationally, allowed for the codification of corruption as a transnational crime. Ware and Noone, who agreed the existence of transnational corruption as a concept suggested this based on the presence of cross-border corruption.[13] Nelken argued that cross-border corruption is more dangerous than the national kind given that transnational criminals are capable of using the barriers of sovereignty to protect themselves, affording greater relevance to international cooperation.[14]
In relation to the second category given by Bossard (international recognition), this can be attacked in two ways. Firstly, whether multiple countries have laws against corruption or corruption offences (bribery, embezzlement), or secondly whether states have ratified international anti-corruption treaties/legislation or are part of international bodies banning corruption offences.
The former is of course the case as all EU member states, the UK, the US and many more all have legislation criminalizing bribery and other corrupt activity. For the latter, several international agreements outlawing corruption and related offences already exist. The UN Convention Against Corruption, is the only legally binding international anti-corruption agreement. The foreword to this convention states that it identifies a “comprehensive set of standards, measures and rules that all countries can apply”, with sections directed at heads of state, with the statement that “corruption is an evil” found in all countries “big and small, rich and poor.”[15] In particular, the prevalent interaction between corrupt state actors and corrupt corporations, many of which operated transnationally, allowed for the criminalization of corruption as a transnational crime.
Seemingly then, the international agreement regarding the criminality of corruption and corruption offences renders it a transnational crime[16]. Theoretically, corruption can be called a transnational crime, Williams suggested that corruption is “used to create a congenial environment in which criminal organizations can carry on their activities with impunity.”[17]
How corruption as a transnational crime has operated and affected people (Narcos)
While the categorization of corruption as an international crime is still legally uncertain, there is sufficient academic consensus (as demonstrated) to successfully argue corruption is a transnational crime. Boister, agreeing with this categorization, noted that the offence is one which causes harm to State, society and to property.[18] In his assessment, transnational corruption is among a small number of offences with such a vast effect[19]. In the case of Escobar, this would be just the offences of paying people of and threatening them (albeit on a grand scale), however the effects leading on from this were enormous. The way in which Escobar was able to ship cocaine into the US directly created a crack cocaine epidemic in the country during the 1980s and 90s. This epidemic specifically afflicted low socio economically standing urban and minority communities. As a result, these communities were overly policed and incarcerated, the homicide rate among young black males doubled, and infant and fetal mortality doubled.
It can clearly be seen how corruption can facilitate and create a domino effect for other more serious, larger and widespread offences. Corruption in Colombia meant not only the expounding and facilitation of major crime in that country, but, due to the transnational nature of corruption, also creating those resultant crimes and disasters in other states. This is corruption displaying its cross border impact. The Global Infrastructure Anti-Corruption Centre further states in its analysis of corruption as a transnational crime, that corrupt transactions commonly result in the commission of several other offences, many of which overlap[20].
Braithwaite recognized the difficulty of combatting corruption given the vastness of its effects as demonstrated above[21]. This often led to a manipulation of the law. The complexity of the national law on corruption as well as the cost of successful prosecutions meant that states often saw the costs of combatting corruption as outweighing the benefits.
Several academics have also identified that corruption contributes to the operation of other complex transnational crimes. As such, the status of corruption as a transnational crime derives both from its own criminality and its facilitation of other organized transnational crimes such as drug trade (Escobar) and international terrorism[22]. Lupsha argued that without corruption offences, which are used to undermine authority figures, other transnational crimes would be far less successful.[23] This reliance on corrupt practices for effective execution of often complex cross-border crimes accelerated the emergence of corruption as a transnational crime. Boister hypothesized that most transnational crime is driven by a desire for economic gain[24]. Accordingly, corruption which itself often includes the misuse of money, helps to accelerate other transnational crimes[25]. Escobar, being worth an estimated $35 billion dollars and using money to bribe for the purpose of making more money, serves to prove this hypothesis.
The increased number of Mexican drug cartels followed the collapse of rival Columbian groups, propelled by a failing police system and corrupt governance practices.[26] Accordingly, transnational corruption produces an alternative authority system which goes to de-legitimize the existing politico-legal systems in place. Boister notes that in extreme cases the “close symbiotic relationship” between government officials and transnational criminals means that the state is “captured by criminals”[27]. The development, across several states, of corrupt relationships between state officials and propagators of corruption attracted the attention of global leaders, contributing to the surfacing of corruption as a transnational crime. In this context, Souheil El Zein of INTERPOL remarked that the internationalization of corruption needed to be “addressed by the entire community”, concluding that “the need for international action against corruption may never have been more acute.”[28]
How is transnational crime being addressed (and how effective is this)
Shelly projected that transnational crime would be “among the defining threats of this century” and required international cooperation to minimize its effects[29]. As per Bossard’s categories of transnational crime which provide the basis for this research, increased domestic consensus on the criminalization of corruption helped to validate its transnational status, and combat the damaging effects of it.
Around the turn of the millennium, regional actors came together to form agreements regarding their combined approaches to corruption, often focusing on economic corruption practices. In Europe, the Multidisciplinary Group on Corruption (GMC) was created to feed into the “international fight against corruption”[30]. In its progress report submitted to the Conference of European Ministers of Justice in June 1997, the GMC convinced European Ministers that corruption should be perceived as an organized crime and should be tackled as such[31].
Included in the 1997 General Assembly Resolution was the Assembly’s concern regarding links between corruption and other forms of crime, particularizing organized crime and economic crime such as money laundering.[32] The agreement specified the need for an international approach to combatting corruption, having, even then, identified it as a “phenomenon” which required international cooperation to prevent and control it.[33] The 1997 resolution urged member states to “carefully consider problems posed by the international aspects of corrupt practices”.[34] Signatories vowed to focus on the international economic activities carried out by corporate entities. Given that corporate entities were becoming increasingly transnational in nature, it became clear that further legislation would be developed to combat corruption beyond host state level. Paragraph 7 of the 1997 Resolution alludes to this by urging signatories to consider “appropriate legislative and regulatory measures” to minimize corruption in financial systems and transactions carried out by corporate entities.[35]
If this were the case in the 1970’s, 80’s, and 90’s, Escobar would not have been as effective in infiltrating the US market, due to the aforementioned reliance Escobar’s empire had on money laundering, bribery, and threats. A transnational recognition of these offences would have pushed Colombia to crack down on legislating, internally investigating, and enforcing appropriate measures, as well as international bodies providing review, monitoring, support, and reform advice to Colombia and their anti-corruption goals.
Conclusion
For several decades criminologists have documented the rise of corruption offences from national to transnational crimes. The spread of corrupt practices in several corners of the world reinforced the illegality of these offences as a matter of national law. Given that corruption offences were initially perceived to be an economic issue arising out of the close relationship between private entities and government officials, the increasingly transnational nature of those relations meant that corrupt practices would rarely only affect the individual nation. Corruption at the state level will inevitably result in not only commission of further crimes facilitated/unhindered by the corruption (often times allowing more money to be made, which allows scaling up of the bribery, resulting in further profits etc.), but will cause detriment to the public and spread across borders facilitating crime in other jurisdictions. From an academic perspective, a practical perspective, and a law making perspective, corruption is a transnational crime.
Bibliography
International Conventions
OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997).
The United Nations Convention Against Corruption.
OECD Recommendations
OECD Recommendation for Further Combating Bribery of Foreign Public Officials in International Business Transactions (2009).
Regional Conventions
African Union Convention on Preventing and Combatting Corruption.
Council of Europe Criminal Law Convention on Corruption (No. 173).
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African Union Declaration on Fundamental Changes.
Cairo Agenda for Action Relaunching Africa’s Socio-Economic Transformation.
Malabo Protocol to the Statute of the African Court of Justice and Human Rights.
UN Declaration against Corruption and Bribery in International Commercial Transactions (1996).
United Nations General Assembly Resolution (1975) A/RES/3514(XXX) on Measures Against Corruption Practices of Transnational and Other corporations, their Intermediaries and Others Involved.
United Nations General Assembly Resolution (1997) A/51/610 on Action Against Corruption.
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Institutional Report
Bossard, A., 1990. Transnational Crime and Criminal Law. 1st ed. The Hague: Office of Intl Criminal Justice.
Multidisciplinary Group on Corruption (GMC), 2000. GMC Activity Report. CM Documents. Brussels: European Union.
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Al-Dawoody, A. International Criminal Law Review, 2015. International Terrorism and the Jurisdiction of Islamic Law.
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Footnotes
[1] Guilfoyle, D., 2020. Transnational Crimes. The Oxford Handbook of International Criminal Law, 1(1), p.791.
[2] McFarlane, J., 2003. Corruption and Anti-Corruption. 1st ed. Canberra: ANU Press, p.133.
[3] Bossard, A., 1990. Transnational Crime and Criminal Law. 1st ed. The Hague: Office of Intl Criminal Justice, p.5.
[4] Bossard, A., 1990. Transnational Crime and Criminal Law. 1st ed. The Hague: Office of Intl Criminal Justice, p.5.
[5] Global Infrastructure Anti-Corruption Centre, n.d. What is Corruption?. [online] Global Infrastructure Anti-Corruption Centre. Available at: <https://giaccentre.org/what-is-corruption/> [Accessed 13 November 2021].
[6] McFarlane, J., 2003. Corruption and Anti-Corruption. 1st ed. Canberra: ANU Press, p.137.
[7] Ibid.
[8] Ibid.
[9] Tomkins, A., 1999. Responsibility and Resignation in the European Commission. The Modern Law Review, 62(5), p.744.
[10] Guilfoyle, D., 2020. Transnational Crimes. The Oxford Handbook of International Criminal Law, 1(1), p.794.
[11] Roach, K., 2014. Terrorism. 1st ed. Oxford Handbook of Criminal Law: Oxford, p.821.
[12] Braithwaite, J. 1979. International Journal of the Sociology of Law. Transnational Corporations and Corruption: Towards Some International Solutions. 7(1), p.126.
[13] T.Ware, G. and P.Noone, G., 2005. The Anatomy of Transnational Corruption. International Affairs Review, 1(1), p.30.
[14] Nelken, D, 1997. The Globalization of Crime and Justice. Current Legal Problems, p. 252.
[15] The United Nations Convention Against Corruption, Foreword.
[16] Bossard, A., 1990. Transnational Crime and Criminal Law. 1st ed. The Hague: Office of Intl Criminal Justice, p.5.
[17] Williams, P. and Savona, E., 1995. Problems and Dangers Posed by Organized Transnational Crime in the Various Regions of the World. Transnational Organized Crime, 1(3), p.23.
[18] Boister, N., 2021. An Introduction to Transnational Criminal Law. 2nd ed. Oxford: OUP, p.58.
[19] Ibid.
[20] Ibid.
[21] Braithwaite, J. 1979. International Journal of the Sociology of Law. Transnational Corporations and Corruption: Towards Some International Solutions. 7(1), p.126.
[22] Al-Dawoody, A. International Criminal Law Review, 2015. International Terrorism and the Jurisdiction of Islamic Law. 1(5), p.566.
[23] Lupsha, P., 1996. Transnational Organized Crime. Transnational Organized Crime Versus the Nation-State. 2(1), p.35.
[24] Boister, N., 2021. An Introduction to Transnational Criminal Law. 2nd ed. Oxford: OUP, p.57.
[25] Ibid.
[26] Ibid.
[27] Ibid, p. 58.
[28] McFarlane, J., 2003. Corruption and Anti-Corruption. 1st ed. Canberra: ANU Press, p.136.
[29] Shelley, L. Transnational Organized Crime: An Imminent Threat to the Nation-State? Journal of International Affair, 1995. 48(2), p. 463.
[30] Multidisciplinary Group on Corruption (GMC), 2000. GMC Activity Report. CM Documents. Brussels: European Union, Section 1
[31] Ibid, Section 2.
[32] United Nations General Assembly Resolution (1997) A/51/610 on Action Against Corruption, Preamble.
[33] Ibid.
[34] Ibid.
[35] United Nations General Assembly Resolution (1997) A/51/610 on Action Against Corruption, Paragraph 7.
