Transnational Crime

European and Chinese Perspectives

Valsamis Mitsilegas, Saskia Hufnagel, Anton Moiseienko, Shi Yanan, Liu Mingxiang

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351026802
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This volume offers a diverse set of perspectives on transnational crime. Providing a wide-ranging overview of the legal and policy issues that arise in connection with various forms of transnational crime, the authors outline the criminal justice responses adopted across different jurisdictions. Including contributions from high profile Chinese and European academics and practitioners across a variety of disciplines and methodological backgrounds, the authors address some of the hitherto underexplored issues related to transnational crime. These range from trafficking in cultural objects derived from illicit metal-detecting and metal-detecting tourism in China to the European approaches to criminalising the denial of historical truth. The central theme of the book is that useful lessons can be drawn from each other's experiences, and that a cross-fertilisation of domestic approaches to transnational crime is essential to effective cooperation.

This book will be of use to students and academics of comparative criminal justice and anyone interested in transnational crime.

1    Introduction

Valsamis Mitsilegas, Saskia Hufnagel and Anton Moiseienko

This edited collection inaugurates a book series on European and Chinese approaches to criminal justice, which was launched in partnership by the Criminal Justice Centres of Queen Mary University of London (QMUL) and the School of Law of Renmin University of China. It draws together papers from a number of conferences jointly conducted over the course of the last five years by the two research centres. While the types of crime discussed in the chapters vary, the focus of the present volume is specifically on transnational crime. Different types of crime are reflected, under the umbrella of transnational crime, in the different parts of this volume. As the first book in a series, it aims to provide a wide-ranging – although, inevitably, not comprehensive – overview of the legal and policy issues that arise in connection with various forms of transnational crime, as well as outline the criminal justice responses adopted across different jurisdictions. It is hoped that this approach will be of use to students of comparative criminal justice and anyone interested in transnational crime.

The collaboration between QMUL and the Renmin University of China began in the form of a series of annual joint conferences that date from 2013. The first such conference was convened at Renmin University in October 2013 to discuss the legal regulation of organised crime in Europe and China. Subsequent conferences focused on financial crime (London 2014), corruption (Beijing 2015), transnational crime (London 2016) and cybercrime (Beijing 2017). Notwithstanding the particular emphasis on Chinese and European experiences, each instalment of the conference also brought together a diverse range of scholars and practitioners from elsewhere, including the US, Canada, Australia, Russia and South Africa.

The publication of a joint book series was conceived as a means of promoting the understanding of the Chinese legal system among English-speaking scholars, but also as a valuable tool of highlighting the similarities and differences in approaches to various forms of crime. In order to ensure consistent quality and the balanced representation of Chinese and European perspectives on criminal justice, the book series is co-edited by Professor Shi Yanan and Professor Liu Mingxiang (Renmin University of China) and Professor Valsamis Mitsilegas and Dr Saskia Hufnagel (QMUL).

While there is a growing body of literature on Chinese criminal law and criminal justice, few works so far have attempted the task of juxtaposing Chinese and European perspectives within a single volume focused on a specific type of criminality. With many specialised publications on Chinese criminal law only being available in Chinese, it is hoped that a series of such books will facilitate a fruitful dialogue between academics and policy-makers. The need for such dialogue is particularly evident in the area of criminal justice, with issues such as financial crime and cybercrime acquiring ever-increasing prominence as China undergoes rapid economic and technological development.

Furthermore, as the papers in this volume were presented at international and interdisciplinary conferences, their content has already undergone the scrutiny of peer assessment, or, more generally, has been subjected to the views of ‘outsiders’ to the jurisdictions discussed. This has enabled authors to address questions arising in relation to work in an international context, making the chapters more accessible to readers unfamiliar with the jurisdictional issues discussed.

In line with the overarching purpose of the series, this volume offers a diverse set of perspectives on transnational crime. With contributors coming from a variety of disciplines and methodological backgrounds, efforts have been taken to address, amongst other things, some of the hitherto underexplored issues related to transnational crime from different international perspectives. These range from trafficking in cultural objects derived from illicit metal-detecting and metal-detecting tourism in China to the European approaches to criminalising the denial of historical truth. For all the diversity of the contributions and issues raised by the contributors, the central theme of the book is the notion that useful lessons can be drawn from each other’s experiences, and that a cross-fertilisation of domestic approaches to transnational crime is essential to effective cooperation.

The book begins with a chapter by Valsamis Mitsilegas on the global governance of transnational crime. Mitsilegas offers an account of the various types of international responses to transnational crime, ranging from international treaties to ‘soft law’ to the decisions of the UN Security Council, and questions whether the democratic deficit surrounding their adoption makes them unfit for purpose. The chapter sets the stage for the rest of the material in the book. By looking specifically at the informal norm-making by the Financial Action Task Force (FATF), the global standard-setter in anti-money laundering and counter-terrorist financing (AML/CTF), as well as terrorist-financing sanctions lists promulgated by the UN Security Council, Mitsilegas’s chapter also serves as an appropriate introduction to the section of the book that deals with money laundering, terrorist financing and cybercrime.

It opens with Shi Yanan’s chapter on the Chinese AML legal framework. Shi’s comprehensive account of the evolution and functions of Chinese institutions entrusted with AML functions clearly demonstrates the policy attention that the issue of money laundering has received in China in recent years. As such, it is a welcome contribution to the predominantly Western-centric literature on AML laws and regulations.

The following chapter by Clive Walker focuses on the use of UK charities for terrorist financing and the evolution of regulatory responses to the phenomenon. By zooming in on one specific sector, Walker’s contribution highlights the importance of political will and practical resources in the fight against money laundering and terrorist financing. It shows how a reform of one particular agency – Charity Commission – has dramatically expanded its capacity to tackle terrorist financing. Wang Wenhua’s chapter identifies specific legal and policy issues that should be addressed in order to bolster China’s efforts against cross-border money laundering, ranging from legislative questions, such whether money laundering should be criminalised on an ‘all crimes’ basis, to the challenges of international cooperation. Her practice-focused contribution is therefore a useful complement to Shi’s comprehensive overview of the Chinese AML regulation. A more theoretical approach to the challenges of fighting transnational crime is represented in Petter Gottschalk’s chapter on cybercrime, which looks at several case studies to discuss the characteristics of cybercriminals, ranging from fraudsters to biker gangs that engage in cybercrime.

The next section of the book could be more broadly described as the ‘history’ part of this volume. It brings together contributions that deal with cultural heritage crime and the protection of historical memory. Samuel Hardy provides an insight into the world of illicit metal detectorists who unlawfully appropriate antiquities in East Asian countries, including China. His meticulous and highly original empirical research, which is based on analysing open sources such as web forums and Facebook groups, sheds light on one form of transnational crime that may not be highly organised or centralised but, nevertheless, inflicts substantial damage on communities where it takes place. The issue of cultural and social significance of art crime is addressed in detail, albeit in a different context, by Naomi Oosterman in her chapter on the societal implications of two notable art thefts from Dutch museums, namely the Westfries Museum and Kunsthal. As she demonstrates, the consequences of these crimes reverberated beyond the Dutch art world and even had effect on the country’s political discourse and foreign relations. In a variation on the theme developed by Oosterman, Emmanouil Billis critically examines the criminal law regulations concerning a somewhat different type of heritage, namely historical truth. By examining the trial in Greece of the German history professor Heinz Richter, he confronts the vexed issue of how far the reach of criminal law may extend when free speech and the freedom of academic research are at stake.

The following section of the book deals with financial crime and corruption. Relying on examples from Australian, UK and US laws, Simon Bronitt argues that the legitimacy and practical efficiency of anti-corruption rules should be of greater concern for legal scholarship than the minutiae of the legislation. The theme of legislative efficiency is also present in the next two chapters, which provide an overview of some of the major issues of financial crime legislation in China and will therefore be of particular interest to those readers who seek up-to-date information on the Chinese legislation and scholarly debates in the area. Liu Mingxiang’s chapter deals with the law on credit card fraud in China. In addition to providing a thorough account of the existing legislation and practical challenges of its enforcement, the chapter elucidates some of the doctrinal debates as to whether a separate offence of credit card fraud is at all necessary, as well as highlights the occasional inconsistencies between criminal and banking laws. Cheng Lei’s chapter offers a concise and accessible guide to the Chinese legislation on confiscation of the proceeds of financial crime. By analysing the challenges of confiscation, which is an indispensable criminal justice response to financial crime, the chapter complements and expands on Shi’s and Liu’s contributions.

The book concludes with three chapters on environmental crime, which is clearly a subject of growing concern around the world. The chapters in this section amply demonstrate the global nature of the threat, as well as the interconnectedness of modern states and need for international cooperation. Grazia Maria Vagliasindi offers a tour d’horizon of international responses to environmental crime, ranging from treaties such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora to non-binding declarations to arrangements for international cooperation and information sharing. As Vagliasindi makes clear, there is no silver bullet to environmental crime and solutions must include a range of coordinated responses aimed at changing the underlying economic dynamics of supply and demand, as well as addressing the links of environmental crime with other types of crime and removing the challenges to international cooperation. Toine Spapens, Shanna Mehlbaum and Rudi Neve analyse the date from 13 major criminal investigations that involved the illicit export of waste materials from the Netherlands to China. The authors of the contribution combine academic and police experience. Among the major hindrances to the successful investigation of such cases is the lack of adequate information exchange between Dutch and Chinese authorities, and even the spontaneous information sharing in the EU is hardly always adequate – something that is ripe for change in view of the shared interest of states in preventing environmental crime. Finally, the chapter by Erika J. Techera and Jade Lindley is unique for this book in its focus on the Indo-Pacific ocean areas. Looking at illegal, unregulated and unreported (IUU) fishing through the lens of crime opportunity theory, it advocates multi-faceted regional responses grounded in the understanding of the economy of IUU. Once again, international cooperation is of essence, although at the same time the authors acknowledge its limits and underscore the necessity of understanding the motivations of states in addressing or not addressing IUU.

The study of transnational crime demands that we look beyond our national jurisdictions and consider causes and effects of crime, as well as criminal law and procedure, in other parts of the world. This book is intended to set the scene and awaken interest in European and Chinese issues. However, there are many more topics to consider for joint research than transnational crimes. Doctrinal legal comparisons of Chinese and European legal problems can be as enlightening as cross-border issues. The future books in this series will aim to delve even deeper into this world of similarities and differences and attempts to compare problems and solutions in two parts of the worlds that might have more in common in this field than previously thought.

2 The global governance of transnational crime

Implications for justice and the rule of law

Valsamis Mitsilegas

Introduction

The past three decades have witnessed the adoption at the global and regional level of a plethora of regulatory and legislative measures aimed at countering transnational crime. Rather than forming a homogenous body of norms, these measures have been adopted in a variety of forms and fora. The aim of this chapter is to provide a comprehensive typology of norm-making in transnational criminal law, by focusing on both the adoption of norms at the global level and on issues of implementation and compliance. Transnational criminal law is to be distinguished from international criminal law in this context in involving the production of norms which must be implemented by – and be enforced in – domestic criminal justice systems, being transformed in this process largely into domestic criminal law rules. When implemented in domestic systems, transnational criminal law norms thus have a significant impact on the relationship between the individual and the state and the protection of human rights at the domestic level. The essay will look in particular at how the making of transnational criminal law has shifted from traditional forms of international law-making – namely multilateral international treaties – to other forms of governance including regionalism, ‘soft’ or ‘informal’ law and ‘global administrative law’. The next sections will thus examine the global governance of transnational crime under these headings. The interaction and inter-relationship between these forms of governance in the development of a multi-level paradigm of global governance of transnational crime will be highlighted and the implications of this paradigm on justice and the rule of law will be explored. Questions on justice will focus on issues of inter-state justice, but also the impact of transnational criminal law on domestic criminal justice systems. Questions on the rule of law will focus primarily on the process of global norm-making and, in particular, democracy, transparency and accountability, but will also explore questions of rule of law as judicial review, in addressing the changing paradigm of international law having a direct impact on individuals. A number of parallel and innovative processes of internationalisation and globalisation will be highlighted in this context and their impact on law-making in a complex global arena will be explored.

Legislating by multilateral conventions: the case of UN treaties on transnational crime

The classic example of global law-making, including in the field of transnational crime, is the multilateral convention and the key actor in this context has been the United Nations (UN). United Nations intervention in this context can be seen as traditional in that it attempts to promote global standards while rooted firmly within state sovereignty and equality.¹ The emergence of multilateral conventions in the field of transnational crime is inextricably linked with changes in the post-Cold War security landscape. The end of the Cold War has had broader implications for the reconfiguration of the global security agenda. The shift from the emphasis on military threats to the securitisation of broader phenomena has been well documented.² A key element of this securitisation shift has been the elevation of forms of criminality as security threats that require urgent and concerted response by governments.³ In this securitisation process, perceived security threats have proliferated and assumed a chameleon nature over the years – from drug trafficking in the 1980s to organised crime in the 1990s and terrorism in the 2000s.⁴ This evolving securitisation agenda has led to the production of what Nadelmann has termed ‘global prohibition regimes’, which involve the introduction of security standards by dominant societies and states – in particular the United States – and their internationalisation and internalisation by the rest of the world.⁵ The globalisation of this securitisation agenda has been reflected in the intervention by the United Nations via the adoption of multilateral conventions in the field of transnational crime. A major step towards the globalisation of criminal law in this context was undertaken by the United Nations in the 1980s in the form of the conclusion of the 1988 Vienna Convention against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances. To a great extent prompted by the so-called US ‘war on drugs’, the Convention introduced a number of detailed provisions on drug trafficking, as well as – for the first time – the criminalisation of money laundering at the global level.⁶ The Vienna Convention was followed in ensuing decades by two further major UN Conventions in the field: the UN Convention on Transnational Organised Crime (UNTOC), and the UN Convention Against Corruption (UNCAC). UNTOC constitutes perhaps the most impressive contribution of a United Nations multilateral treaty towards the globalisation of criminal law. It was negotiate...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contributors
• Table of Contents
• 1     Introduction
• 2     The global governance of transnational crime Implications for justice and the rule of law
• Part I     Money laundering, terrorist financing and cybercrime
• Part II     Art crime and historical memory
• Part III     Comparative perspectives on corruption and financial crime
• Part IV     Environmental crime
• Index