North Korea Sanctions – #Epic Fail

By: Regina Paulose[1]

North Korea (or DPRK) has continued to prove that the sanctions policy against its leadership is a failure. The DPRK has continued to subvert sanctions by earning hard currency through illegitimate means.  It essentially works as an organized crime syndicate. It is important for the international community, in particular the United Nations Security Council (UNSC), to think of ways to constructively engage the country so that it can effectively make a difference with regards to weapons proliferation and human rights and so that North Korea can turn away from using illicit channels to raise money. Continue reading

Organized Crime & Terrorism: Making Room for New Friends

Written by: Regina Paulose

The bond between organized criminals and terrorists appear to be growing in the status quo. This connection should be worrisome as these networks have found common interests. Considering the different objectives of each group, some may question whether they truly have anything in common. Terrorists are generally motivated by politics, whereas organized enterprises are motivated by money. Despite this philosophical difference in the bottom line, some examples prove that this connection is strong. “In some cases terrorists and criminals appear to be deeply intertwined in ways that go well beyond fleeting alliances of convenience. The Dubai-based Indian criminal Aftab Ansari is believed to have used ransom money he earned from kidnappings to help fund the Sept. 11, 2001, terrorist attacks. And some people, like the Pakistan-based Indian crime boss Dawood Ibrahim, even go on to pursue dual careers as both criminal and terrorist leaders.”[1]

Despite the different goals of the two illicit groups, differentiating between the two – sometimes – can be challenging. Terrorists are involved in the black market in order to generate needed revenue.[2]  This revenue is what allows them to pursue their political or religious agendas.[3] Organized criminals have resorted to modeling violent techniques which are used by terrorists to advance their monetary agendas.[4] “Criminal organizations can become ideological over time, following the path of terrorist groups.”[5]  Many famous mafia stories highlight how monetary gain is closely tied with political power. The more power the illicit group yields, the easier it becomes to allow the black market to flourish. Who these groups are and who they can turn into poses a challenge for the rule of law everywhere.

So how do the international conventions address this particular bond?[6] The United Nations Convention on Transnational Organized Crime (UNTOC), which entered into force in 2003, is the main international legal instrument which deals with organized crime.[7]  The Convention is accompanied by three Protocols which deal with human trafficking, smuggling, and arms trafficking. The Convention aims to criminalize participation in organized crime, increase cooperation among state parties, and protect human rights. Given its mandate, naturally, UNTOC does not address the issue of the organized crime – terrorism nexus. With a very broad reading, one could infer that the UNTOC may address this issue. For instance, Article 5 of the Convention calls for criminalization of participation in an organized criminal group. The language of Article 5(ii) states:

Conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in:

a. Criminal activities of the organized criminal group;

b. Other activities of the organized criminal group in the knowledge that his or her participation will contribute to the achievement of the above-described criminal aim.

An argument could be made that a terrorist who purchases a weapon from or supplies weapons to an organized group is taking “active part” in the “criminal activities” of the group. Or even the language of section (b) makes it clear that if the terrorist has “knowledge” that his participation will “contribute” to the criminal aim, he could be penalized for his association.

This example should serve as a cautionary tale. We must avoid conflating the two groups because it could pose its own set of legal challenges, especially considering that terrorism is mainly viewed via the law of war. If terrorists are engaging in the same activity as organized criminals, it is probably safe to assume that these operations are a means to an end.

Another international instrument to consider is the International Convention for the Suppression of Financing Terrorism. This particular Convention expressly deals with punishing perpetrators who finance terrorism. Under Article 2, any person could be held culpable for directly or indirectly facilitating, participating in, or aiding or abetting in the commission of various offenses as listed in the annex of the Convention.[8] Some of the offenses listed are: unlawful seizure of an aircraft, taking of hostages, terrorist bombings, endangering the safety of civilian aircrafts, and endangering maritime vessels. This particular Convention could provide relief against this particular nexus, depending on how it is enacted domestically.

The international community has recognized that terrorists do use different resources to accomplish their aims. In 2006 the UN General Assembly adopted the United Nations Global Counter-Terrorism Strategy. Specifically one of the aims of the “holistic” strategy is:

“to strengthen coordination and cooperation among States in combating crimes that might be connected with terrorism, including drug trafficking in all its aspects, illicit arms trade, in particular of small arms and light weapons, including man-portable air defence systems, money laundering and smuggling of nuclear, chemical, biological, radiological and other potentially deadly materials.”[9]

While many scholars still argue that the link between these villains is “nebulous”[10] and that the empirical data to support that the groups are working together is little, there still appears to be a small link, at the very least, that should be acknowledged by the rule of law. It is probably time to address the importance of these issues and make the necessary changes required to have states implement more robust language in their national laws. The state parties to these conventions may not have envisioned a world where the underbelly of society forms alliances (however brief) to achieve their various goals. Unfortunately that is the current reality and it seems as though it is far more than a passing trend.


[1] Rolle Lal, “Terrorists and Organized Crime Join Forces” NYT Opinion, May 24, 2005, available at: http://www.nytimes.com/2005/05/23/opinion/23iht-edlal.html?_r=0

[2] See David Kaplan, “Paying for Terror” US News and World Report, November 27, 2005, available at: http://www.usnews.com/usnews/news/articles/051205/5terror.htm

[4] Karen Parrish, “Link Grows Between Terrorism, Organized Crime, Officials Say” American Forces Press Service, March 28, 2012, available at: http://www.defense.gov/news/newsarticle.aspx?id=67721

[5] Lal , as cited above

[6] My analysis for the purposes of this post is limited to two Conventions and is not meant to be an exhaustive or comprehensive look at every single treaty that exists and could potentially address this problem. For anyone wanting more information on finding treaties or researching this issue in depth, I suggest referring to the UN Treaty Collection: http://treaties.un.org/Home.aspx?lang=en

[7] The “guardian” of the instrument is the UNODC. For more information on the UNTOC visit: http://www.unodc.org/unodc/en/treaties/CTOC/index.html

[8] International Convention for the Suppression of the Financing of Terrorism, available at: http://treaties.un.org/doc/db/Terrorism/english-18-11.pdf

[9] UN Action to Counter Terrorism, A/RES/60/288,  September 20, 2006,  p.5 available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N05/504/88/PDF/N0550488.pdf?OpenElement

[10] Annette Hübschle, From Theory to Practice: Exploring the Organized Crime-Terror Nexus in Sub-Saharan Africa, Perspectives on Terrorism (Journal), Vol.5 No 3-4 (2011), available at: http://www.terrorismanalysts.com/pt/index.php/pot/article/view/157/html

Let My People Go: Blowing the Whistle Upon African States

By Ronald Rogo   rogo.ronald@gmail.com

I have heard about the problem of human trafficking[1] for eons. Horrid stories about the pain of individuals held against their will within and outside their borders. The numbers are numbing: conservative estimate of 600,000-800,000 victims being trafficked annually across international borders. Many more cases are not reported, especially trafficking that occurs within the national borders.Resolutions have therefore been passed about how governments will fight the menace and ensure that future generations do not have to fight these ghosts again.

As a source market, the situation in Africa is just as dire, if not more, compared to other parts of the world. For example, according to the Global Report on Trafficking in Persons by the UNODC in some parts of Africa and the Mekong region, children are the majority (up to 100% in parts of West Africa) of the persons being trafficked. Needless to say, hundreds of thousands of Africans have been subject to sexual, physical and psychological abuse. Most Africans could identify one or two individuals who have been subjected to these inhuman conditions. For Africans, human trafficking is a chilling re-enactment of the trans-Atlantic slave trade. Only that this time the African governments are complicit, by design or default, in the entire business (others would argue that, yet again, the leaders are complicit…but that is a discussion for another day).

But let me fair. It is not entirely correct to state that nothing has been done by the African leaders. Numerous conferences have been held in the continent where the issue of human trafficking has been discussed. Glossy paged reports with policy and legal commitments have also been prepared. We have even passed laws that outlaw human trafficking[2].  In fact, even some of the highest public officials have created time out of their busy schedules to open these conferences, deliver the opening remarks and encourage the participants of the commitment of their respective governments on this issue. But that is all. After this, the documents are filed and shelved until the next donor conference when they would be dusted again and the speeches brushed up. The rigmarole. And that is exactly my problem.

While the rest of the world has developed regional instruments to tackle their specific needs on human trafficking, Africa has stagnated. In 2005, for example, the Council of Europe Convention on Action against Trafficking in Human Beings was established to assist combat human trafficking problem in the European Union. In addition, the European regional court-has established important jurisprudence in the area of human trafficking.

Africa developed the Ouagadougou Action Plan[3], where member states pledged to havea comprehensive legislative and institutional framework that covers all aspects of trafficking in human beings in line with the UN Convention” and to “Ensure the effective prosecution of those suspected of involvement in trafficking in human beings, and deterrent penalties for those found guilty of trafficking”. However, as we shall see, these noble intentions have not been met by actual progress.  In contrast, one would barely get a case that signifies the importance of human trafficking in Africa. For example, while child sex trafficking was outlawed in Kenya in 2006 there has not been any significant reported case to date[4]. Even in situations where the victims’ cases have been filed in the European capitals the source countries have often inexplicably failed to take similar actions against the perpetrators. To put it more succinctly “Law enforcement systems have fail(ed) to prevent trafficking, punish traffickers, and protect those who are trafficked. In general, the failure of law enforcement officials to ensure security, particularly in the context of conflict, means that traffickers can act extremely violently with impunity”[5].

It seems to me that since the victims of human trafficking are mostly women and children-and conversely the beneficiaries are predominantly male[6]-the problem of human trafficking does not affect the power relations. The political power brokers can therefore afford to bury their heads in the sand. For instance, one would be hard pressed to recount an instance when an individual Parliamentarian in Africa has, suo moto, raised concern about the impact of human trafficking on their citizenry. Others would state that there are bigger problems to deal with in Africa. But what, pray tell, would be more urgent than preventing the decimation of the population in the continent?

Lack of the appropriate resources is often stated as an important barrier to effective combating of human trafficking. I would agree but qualify. Africa lacks willing implementers of the policies. People who will bite the bullet and get on with the task of rescuing generations of enslaved victims. Fighting human trafficking, just like drug trafficking, requires the expertise of a skilled police force. Specialised police units with the skills of identifying and being able to expose these tight networks need to have been created. So typically, if one would have to succeed one would need lots of solid evidence and co-operation of the victim. Most African states have not yet put these in place (although,  I submit, this is more for lack of the will and determination rather than a lack of resources).

Lastly, until African governments address the inequality situation in the continent human trafficking will continue being a problem. Most of the victims are deceived by the promise of a better life across the shores. Lack of employment opportunities, capital to start businesses or an investment climate for small businesses has led to the vulnerability of millions of young people. The Ouagadougou Action Plan identified  poverty, unbalanced wealth distribution, unemployment, armed conflicts, poor law enforcement system, degraded environment, poor governance, societies under stress as well as non inclusive societies, corruption, lack of education and human rights violations including , increased demand for sex trade and sex tourism as the root causes of trafficking in human in Africa. We have the diagnosis. Now let us treat the disease. Urgently.


[1] The UN Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, Supplementing the UN Convention Against Transnational Organized Crime (the Palermo Protocol) defines human trafficking as “The recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”

[2] While a step in the right direction, the type and number of laws are still wanting. Few countries in Africa have specific legislation outlawing human trafficking as a specific offence (these include Djobouti, Ethiopia, Rwanda, Tanzania, Mozambique, the Gambia, Ghana, Liberia, Mauritaina, Senegal, Sierra Leone, Egypt and Nigeria). More countries only have laws that address only one specific form of human trafficking. In the USA, however, there are four different laws to combat human trafficking- The Victims of Trafficking and Violence Protection Act of 2000, the Trafficking Victims Protection Reauthorization Act of 2003, the Trafficking Victims Protection Reauthorization Act of 2005, and the Trafficking Victims Protection Reauthorization Act of 2008. In addition, an Office to Monitor and Combat Trafficking in Persons has been established under the State Department to co-ordinate efforts to prevent and prosecute perpetrators of human trafficking.

[3] Ouagadougou Action Plan To Combat Trafficking In Human Beings, Especially Women And Children As Adopted by the Ministerial Conference On Migration And Development, Tripoli, 22-23 November 2006

[4] However, it is important to applaud the efforts of the Nigerian government which prosecuted 209 trafficking cases in 2011, resulting in 23 convictions. While the numbers are low compared to the number of victims these efforts forecast what should happen if the rest of the states were as serious about combating human trafficking.

[5] HUMAN TRAFFICKING IN EASTERN AFRICA: Research Assessment and Baseline Information in Tanzania, Kenya, Uganda, and Burundi (Report by International Organization of Migration)

[6] The ILO estimates the annual proceeds from human trafficking at 32 billion US Dollars. This, no doubt, is a profitable enterprise with interests. The report can be accessed online at http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@declaration/documents/publication/wcms_090356.pdf

Let us Deal with the Source of Conflicts

“If you’re in India, and the Brahmaputra river is being rerouted by the Chinese, you’re not muddling through; lives are being lost…the world will be drawn into a war for resources…I think we’ll see more wars”. This statement by Dambisa Moyo[1] captures the perspective-perhaps pessimistic, others would say realistic-of the types of war that we have been seeing and should expect in future. Increasingly, the argument goes, main causes of conflict would not be ideological differences, different religious views or identity differences but rather who gets to control which particular portion of the available natural resources. As the Chinese economy continues on its exponential growth trajectory and we continue to deplete the remaining natural resources one would expect that the pressure and competition for the few remaining resources would increase by the day. Eventually this would determine the livelihood of entire populations. When this happens then it would not matter the type or size of stick that international criminal law holds over the warring parties[2].

We can see snippets of this today. The first judgment was recently determined by the International Criminal Court and the perpetrator sentenced to fourteen years imprisonment[3].  However, in spite of this the conflict in the Democratic Republic of Congo is far from resolved. Possibly, the world’s richest country in natural resources[4], the conflict in the Congo had at one time sucked in several neighbouring nations. The pull of and supposed need to control these resources far outweighs any consideration on the “big stick” that the ICC or any other international body carry. We all held our breath as Southern Sudan and Sudan amassed troops towards their common border in what would have been another full scale war. While the original war when Southern Sudan was part of the bigger Sudan had elements of religion and race involved, this would have been a fight for control of the oil fields along the common border. Keep in mind that the ICC still has unexecuted warrants of arrest over Al Bashir, the Sudanese President. Reason? The allure of the oil outweighs the risk of more indictments on any of the parties. Lastly, Kenya recently experienced clashes along its coastal region, even as the ICC prepares to determine cases involving four prominent politicians[5]. The possible involvement of more politicians on the massacre possibly indicates the contempt with which they hold the ICC. Perhaps they feel the ICC has a big bark but no bite. Perhaps the ICC never features in their calculations. Or maybe, yet again, the control of resources is perceived to be a matter of life and death and the ICC can just go jump in the pool. One could go on and on- about Libya, about Iraq, about Afghanistan and other resource rich nations.

The lesson? International criminal law and fear of retribution, by itself, is not enough to prevent people from fighting for resources. When people feel that their own lives are at stake they will take any steps-even committing international crimes-to extinguish the threat. Everyone has an innate need to be heard especially in the allocation of resources. When their views are ignored, as is often the case, conflict results. Is it not then time for the international community to examine how sharing of resources can be conducted in an equitable manner. Not after the fact-when the war drums are being beaten-but immediately after the resources have been discovered. For example, Uganda has discovered oil and gas. We know-from history-what will likely happen if any of the local communities feel aggrieved in the wealth distribution process: more work for the ICC. So does it not make sense for the international community to “poke its nose” into Uganda’s affairs right now, albeit in a subtle way.  This rather than having a court with international jurisdiction is perhaps the better way “to put an end to impunity…and thus to contribute to the prevention of these crimes”[6] After all, “it is the whole political economy of southern resource rich countries and their relations with the north that needs to change if inequalities and recurring conflicts are to be avoided”[7].

(by Ronald Rogo. He lives and works in Nairobi, Kenya. rogo.ronald@gmail.com )


[1] Dambisa Moyo, from Zambia, is an international economist and author. She has authored Dead Aid: Why Aid is Not Working and How There is a Better Way For Africa among others.

[2] There is also the converse argument that an abundance of resources allows for the emergence of warlords able to sustain wars independent of the state’s largesse.

[3] Prosecutor vs Lubanga. Mr Lubanga was convicted and sentenced for conscripting child soldiers into his army

[4] DRC is rich in diamonds, copper, cobalt and lush natural forests. It is easy to see why each country wants a portion of these resources but sad to realize the effect on the citizenry who have not enjoyed this “blessed curse”

[5] Prosecutor vs William ruto and Joshua Sang- (Kenya 1 Case)and Prosecutor vs Uhuru Kenyatta and Francis Muthaura (Kenya II case)

[6] Preamble of the Rome Statute of the International Criminal court

[7] The political economy of resource wars by Philippe Le Billon at p. 40

Prosecuting Pillage of Natural Resources

Written by Garima Tiwari

     Greed more than grievances inspires many of today’s conflicts.[i]

Congo

@Eric Feferberg/AFP/Getty Images

This post would give a brief insight into one of the broadest and most frequently cited provision in relation to illegal exploitation of natural resources in both international as well as non-international armed conflicts- War Crime of Pillage.

Since the end of the Cold War, the illegal exploitation of natural resources has become a prevalent means of financing some of the most brutal hostilities and conflicts. In countries including Angola, the Democratic Republic of the Congo, East Timor, Iraq, Liberia, Myanmar, and Sierra Leone, the illicit trade in natural resources has created lucrative incentives for violence. It seems true, that a resource rich country might not be taking the advantage of what it has, but the resources might turn to its disadvantage. The problem of resource curve is evident.

The war crime of pillage, is included in Article 8(2)(b)(xvi) of the Rome Statute for the situation of international armed conflict and in Article 8(2)(e)(v) for the situation of non-international armed conflict. Pillage as included in the Rome Statue is general in scope covering all kinds of property –without any affiliation of the owner of the property to a party to an armed conflict. But the catch situation here is that the property should be taken for ‘personal’ or ‘private’ use, leading to an open space for justifying pillage when done to fund a conflict. The provision addresses both combatants and civilians.[ii] It is also worth noting that the war crime of pillage covers both individual acts committed without the consent of the military authorities and organized forms of pillage.[iii]

It was the Nuremberg Trials which opened the doors to a broader and liberal understanding of pillage, relevant for the international criminal law, to include a systematic plunder and exploitation of the resources of a country by occupying power.  This went beyond the traditional view of theft by war soldiers or civilians.[iv]

The Special Court for Sierra Leone  specifically dealt with a so called resource-driven conflict.[v] Yet, charges included in the CDF, AFRC and RUF indictments did not regard illegal resource extraction but charged merely in relation to burning of houses and property. It is no wonder the charges were dismissed. In the RUF case, the Trial Chamber held that, since the indictment did not allege that the pillage of civilian property included the diamond resources of Sierra Leone, it could not consider the criminality of such acts in Kono District .[vi] As a consequence, the famous Taylor indictment did not even refer to the diamonds![vii]

International Criminal Court (ICC) included pillage in indictments against Katanga en Mathieu Ngudjolo Chui (DRC), Jean-Pierre Bemba (CAR), Joseph Kony (Uganda) and all indictments pertaining to the situation in Darfur.[viii] Most of the charges deal with looting village and camps but nowhere is the accused charged with crimes directly related to the exploitation activities.

ICC might be adopting the traditional stand here, but it is understandable given the definition of pillage which makes it outside the scope of ICC to address those actors specifically government actors who exploit natural resources to fund armed conflicts. Some suggest charging with corruption in such situations might be more suitable.[ix]

Thus, the issue of pillage grasps for broader interpretation and application. We need to wait and see , how ICC develops the crime of pillage to deal with the very apparent problem of ‘resource curse’ .


[i] P. Collier and A. Hoeffler, Greed and Grievance in Civil War, accessed at www.csae.ox.ac.uk/workingpapers.pdfs/2002- 01text.pdf

[ii] O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Baden-Baden: Nomos, 2nd ed., 2008, margin no. 170, p. 409.

[iii] J. Pictet and O.M. Uhler, The Geneva Conventions of 12 August 1949: commentary, Part 4 on Geneva Convention relative to the protection of civilian persons in time of war, Geneva: International Committee of the Red Cross (1958), Art. 33

[iv] Trial of the Major War Criminals Before the International Military Tribunal, Official Documents, Volume I, Nuremberg (1947), p. 239.

[v] D. Keen, Conflict and collusion in Sierra Leone, Palgrave, 2005

[vi] Prosecutor vs. Sesay, Kallon and Gbao (RUF Case), Trial Chamber Judgement of 25 February 2009,Case No. SCSL-04-15-T, para. 1339.

[vii] C. Rose, Troubled indictments at the Special Court for Sierra Leone: the pleading of joint criminal enterprise and sex-based crimes, 7 Journal of International Criminal Justice 2: 353-372 (2009)

[viii] ICC, The Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al- Rahman Case No. ICC-02/05-01/07

[ix] Van den Herik, Larissa and Dam, Daniëlla, Revitalizing the Antique War Crime of Pillage: The Potential and Pitfalls of Using International Criminal Law to Address Illegal Resource Exploitation During Armed Conflict (January, 22 2012). Criminal Law Forum, Vol. 22, No. 3, 2011