A. The Palermo Convention

The United Nations Convention Against Transnational Organized Crime (CTOC)Footnote 4 was opened for signature in Palermo, Italy, in December 2000. The Palermo Convention, as the Convention is frequently referred to, seeks to eliminate differences among national legal systems and set standards for domestic laws so that they can effectively combat transnational organized crime. The Convention is intended to encourage countries that do not have provisions against organized crime to adopt comprehensive counter-measures, and to provide these nations with guidance for the legislative and policy processes involved. It is also intended to eliminate safe havens for criminal organizations by providing greater standardization and co-ordination of national legislative, administrative, and enforcement approaches to the problem of organized crime, and to ensure a more efficient and effective global effort to combat and prevent it.

The Palermo Convention is roughly divided into four parts: criminalization, international co-operation, technical co-operation, and implementation. The specific focus of this article is those parts of the Convention that deal with the criminalization of organized crime. To that end, the Convention introduces four new offences: participation in an organized criminal group (Article 5), money laundering (Article 6),Footnote 5 corruption (Article 8),Footnote 6 and obstruction of justice (Article 23). The Legislative Guides to the Convention stress that:

The definition of organized criminal group in Article 2(a) of the Palermo Convention and the participation offence in Article 5 are analysed further throughout this article. Other offences and enforcement measures under the Convention are not further explored here.Footnote 8

While the Palermo Convention has widespread support in the Asia Pacific region, few countries have so far implemented the obligations arising from the Convention. In particular, the offence relating to participation in an organized crime group has been met with little interest by many countries in the region. At the domestic level, countries such as the Philippines have developed legislation modelled after the US Racketeer Influenced and Corrupt Organizations (RICO) Act.Footnote 9 Jurisdictions like China, Hong Kong, Macau, and Chinese Taipei (Taiwan) have laws that are tailored specifically to combat local criminal syndicates, namely Chinese triads. Japan has special laws to control boryokudan groups. Similarly, New Zealand, Canada, and Australia have created special offences to ban associations with outlaw motorcycle gangs. Some of these provisions differ greatly from the international model and many jurisdictions remain without any specific offences for criminal organizations.

The purpose of this article is to review offences dealing with the criminalization of organized crime under international and domestic law in the Asia Pacific region and to develop recommendations to improve existing and proposed laws.

B. The Need for and Rationale of Organized Crime Offences

While different models of organized crime offences have been adopted around the region, the common feature of these offences is that they are designed to target the structure, organization, members, and associates of organized crime groups. Unlike substantive offences such as drug trafficking, migrant smuggling, trafficking in persons, and the like, these organized crime offences are designed to sanction involvement in criminal organizations. The offences analysed here are not concerned with the actual activities that are generally attributed to organized crime, but with the organizational functions and purposes of criminal organizations.

Organized crime offences seek to respond to the realization that disrupting criminal activities and arresting individual offenders do not dismantle the criminal organizations that stand behind these illegal activities. “As the law stands now,” remarks Michael Moon, “the Crown may prosecute and eliminate individual members, but the organization continues; new people move into the vacated spot, and the enterprise carries on.”Footnote 10

Organized crime offences are prophylactic: they seek to reduce the risk that criminal organizations will engage in criminal activity. They enable law enforcement agencies to intervene earlier, long before a criminal group commits specific offences. “From the perspective of crime prevention,” notes Estelle Baker, “logic suggests that an approach aimed at the level of the organization is likely to produce greater crime reduction dividends than one which requires dissipated law enforcement efforts across a spectrum of individual end behaviour offences.”Footnote 11 Organized crime offences are aimed at criminalizing persons who are deliberately establishing, joining, or otherwise supporting groups that pursue criminal objectives. These persons are seen as blameworthy because they possess the intention to inflict harm, be it directly or indirectly, even if the desired harm never materializes.

A. The Conspiracy Model

The criminal laws of Canada,Footnote 14 New Zealand,Footnote 15 Australia,Footnote 16 Hong Kong,Footnote 17 Singapore,Footnote 18 Malaysia,Footnote 19 Brunei,Footnote 20 the Philippines,Footnote 21 the United States, and Papua New GuineaFootnote 22 have special provisions creating criminal liability for conspiracies. The conspiracy model can be found predominantly in those jurisdictions that have their origins in English common law. This model is also one of two alternatives set out in Article 5(1)(a) of the CTOC. Conspiracy provisions are less common in those jurisdictions that base their criminal law on Soviet or Continental European traditions. Several proposals have been made to introduce conspiracy provisions into Japan's criminal law, but successive bills have thus far failed to gather the necessary support.Footnote 23

Conspiracy charges are sometimes used in the prosecution of criminal groups involved in the trafficking, supply, or sale of illicit drugs. These cases usually involve defendants who have possession or other immediate access to the drugs or—in other words—who are physically involved in the commission of the crime. Proving the elements of conspiracy is, however, more difficult for persons who are more distantly connected to the actual execution of individual crimes or to the agreement that forms the basis of their conspiracy.Footnote 24

Importantly, in those jurisdictions where conspiracy charges require proof of an overt act, it is often impossible to target the leaders of criminal organizations who are not involved in physically executing their plans and thus do not engage in any overt activity.Footnote 25 Further, conspiracy charges cannot be used against persons who are not part of the agreement on which the conspiracy is based. This excludes from liability low-ranking members of criminal organizations who are not involved in the planning of criminal activities.

To overcome some of the limitations of conspiracy, Singapore amended its criminal law following the adoption of the CTOC. As a result, the scope of the conspiracy provision in Section 120A of the Singapore Penal Code is now much broader than before and, in fact, much wider than any organized crime offence anywhere else in the Asia Pacific region. Stanley Yeo and his co-authors express concern that Section 120A

Yeo et al. also question how little or how much a person must know about the objective of the agreement to be criminally liable for criminal conspiracy:

Similar observations can be made about the conspiracy provisions in Malaysia and Brunei, which are based on the Singapore model.

B. The Participation Model

Historically, offences proscribing participation in a criminal organization could only be found in jurisdictions with Continental European-influenced criminal law systems. In these countries, the “laws proscribing criminal associations are a surrogate for the doctrine of conspiracy, which does not exist outside of the common law world”.Footnote 28 Over the last twenty years, however, a growing number of common law jurisdictions have also adopted this participation model. Starting in California in 1988,Footnote 29 and followed in countries such as Canada and New Zealand in 1997,Footnote 30 a diverse range of jurisdictions in the Asia Pacific region, including Chinese Taipei (Taiwan),Footnote 31 New South Wales,Footnote 32 and Macau,Footnote 33 criminalize various forms of participation in or other associations with criminal organizations. Article 5(1)(a)(ii) of the CTOC also sets out the participation model as an alternative to the conspiracy model.

C. The RICO Model

The model of organized crime offences adopted in the United States, and also under consideration in the Philippines, commonly known as RICO, is based on the concept of enterprise criminality. In simplistic terms, the RICO model focuses on actual criminal activities carried out by an enterprise and on activities that may infiltrate or otherwise influence an enterprise. RICO is predominantly concerned with conduct, not status. Under RICO, notes Gerard Lynch, “[o]rganized crime is as organized crime does”.Footnote 51 Unlike the participation model, it is not primarily concerned with the involvement and roles of individuals in a criminal organization. Unlike conspiracy, it does not require proof of an agreement between a group of co-conspirators.

Central to liability under the RICO laws is proof of specific predicate offences referred to as “racketeering activity”. In §1961(1)(A)–(G) US federal RICO sets out a long list of federal and state predicate offences considered to be “symptomatic of organized criminal activity”.Footnote 52 Under Section 4(c) of the Racketeer Influenced and Corrupt Organizations (RICO) Bill (Philippines), racketeering activity refers to a list of several hundred offences under the Penal Code and several other laws of the Philippines.

These lists or racketeering activities are designed to reflect those offences that are characteristic of organized crime, but closer analysis shows that the lists include many illicit activities which are seemingly unrelated to organized crime. The advantage of the use of predicates is that liability under the RICO model is based on recognized criminal offences and thus creates clear and familiar boundaries of criminal liability. The disadvantage associated with this approach is that these statutory lists of criminal offences do not allow swift responses to new and emerging trends in organized crime as amendments to the list take considerable time. The practical problem is to find the right spectrum of offences that is neither so wide so as to be over-encompassing nor so narrow so as to be prohibitively prescriptive.

The racketeering activity becomes a “pattern” if it is carried out repeatedly over a set period: at least two predicate offences have to be committed within a ten-year period.Footnote 53 The pattern requirement ensures that liability under RICO is limited to cases that involve the commission of multiple, repeated criminal offences, rather than isolated instances of criminal conduct. One of the principal advantages of the RICO model is its ability to combine several prior offences into a new, separate RICO offence which reflects the nature of organized crime.

The actual criminal offences under RICO combine the pattern of racketeering activity with additional physical and mental elements. US federal RICO, and the RICO Bill of the Philippines, recognize three racketeering related offences:

• • Investing racketeering funds, 18 USC §1962(a); RICO Bill (Philippines), Section 5(3);

• • Illegally acquiring enterprise interest, 18 USC §1962(b), RICO Bill (Philippines), Section 5(4); and

• • Operation of an enterprise through racketeering, 18 USC §1962(c).

Under 18 USC §1962(d) it is also an offence to conspire to commit any of the three offences in §1962(a), (b), and (c). The RICO Bill (Philippines) has a separate offence in Section 5(2) for receiving, hiding, and concealing any money or property that was acquired through a pattern of racketeering activity.

It is noteworthy that, apart from the proposed laws in the Philippines, the RICO model has not found many followers in the Asia Pacific region or elsewhere in the world. Wise also finds “no precise analogues for RICO in foreign legal systems, no exact clones, no word-for-word copies of its provisions in the legislation of other countries”.Footnote 54 He explains this by the uniqueness of the legislation, noting that

While no other country may have adopted the exact provisions set by RICO, the statute “had a major influence on legislative changes beyond the borders of the US, even though most countries used it merely as a model from which to extract concepts around which domestic legislation could then be shaped”.Footnote 56

It is difficult to say with certainty whether RICO is adaptable to other legal systems. A principal criticism of RICO has been the fact that its definitions and elements are very cumbersome and overly complicated. RICO does not sit well with the traditional structures of substantive and procedural criminal law elsewhere. One of the main innovative features of RICO is that it combines criminal offences with special law enforcement and proceeds of crime mechanisms, and also allows civil law suits to be brought against criminal organizations.

The basic concept of RICO offences, which combines existing predicate offences with additional conduct elements and proof of an enterprise or criminal organization, is, however, not fundamentally different from the concepts developed elsewhere. Wise notes that:

Opinions remain divided about the benefits and disadvantages of the RICO model. Many critics praise RICO for the wide and flexible application of many provisions and for RICO's ability to adapt to different types of organized crime.Footnote 58 Others have attacked RICO for the very same reasons, criticizing this model for being vague and overly broad and pointing to past RICO prosecutions that were unrelated to organized crime.Footnote 59

D. The Labelling/Registration Model

A further way to penalize criminal organizations and their associates can be found in Japan, Hong Kong, a number of South-East Asian countries, and in some Australian jurisdictions. This fourth model creates a two-tier system: First, it establishes mechanisms to identify and prohibit certain organizations through a registration or labelling system. Second, it criminalizes certain associations with or connections to these organizations.

Two separate systems can be identified. Brunei, Hong Kong,Footnote 60 Malaysia, and Singapore use a system of negative prohibition by way of registering legitimate organizations. The systems of Japan,Footnote 61 New South Wales,Footnote 62 the Northern Territory, Queensland, and South AustraliaFootnote 63 are of positive prohibition, which involves the labelling of certain groups as criminal or illegal.

E. Other Models

China's and Korea's criminal law set out provisions that share some similarities with the organized crime offences but do not fit into the other concepts outlined earlier. These provisions were also not set up for the purpose of capturing large-scale criminal enterprises.

In China and Korea the said provisions are technically not criminal offences; they are mechanisms to modify secondary liability and conspiracy within the traditional parameters. For example, Article 26 Criminal Law 1997 (China) creates a means for holding organizers and other ringleaders criminally responsible as principals for any offences committed by a criminal group and to ensure that they face the same penalty as those actually carrying out the crimes.Footnote 76 Equally, Article 114(1) Criminal Code (ROK) extends responsibility for substantive offences to persons who organize or join groups that have the purpose of carrying out that substantive crime.

F. Evidence

A number of jurisdictions allow the use of certain indicia as evidence to prove a person's association with or participation in a criminal organization. This mechanism can be found in Canada and Hong Kong. In Canada, these indicia include symbols and other insignia used by organized criminal groups.Footnote 77 Hong Kong's Societies Ordinance refers to “any books, accounts, writings, lists of members, seals, banners or insignia of or relating to any triad society”.Footnote 78 These indicia are usually designed as rebuttable presumptions; they are not conclusive evidence. They can be used to show that a person is a member or associate of a criminal group, but the defendant can displace this presumption.Footnote 79

The rationale of this approach is simple as it creates an easy way to connect a person to a criminal group. This approach is tailored specifically for Chinese triad and outlaw motorcycle gangs that traditionally identify their members through certain emblems, symbols, or through triad language. This simplicity is also an obvious disadvantage of this concept as it fails to capture those persons who do not wear or use the insignia of a criminal gang, which is usually the case for more senior members of criminal organizations. Furthermore, this approach does not allow for a broad range of organizations to be captured. The use of evidence such as insignia, tattoos, and other marks and logos makes the legislation suitable only for use against criminal organizations with a clear visual presence and identity. But it is not helpful in targeting organizations that operate less visibly and keep their membership covert. It makes it easy for individuals and groups to evade prosecution, as many organizations do not use any symbols or a common language.

A. Structural Elements

B. Purpose of the Organization

To highlight the profit-oriented nature of organized crime, most definitions contain an element relating to material benefit. The definition under Article 2(a) CTOC, for instance, requires that the purpose of the group's activity is “to obtain, directly or indirectly, a financial or other material benefit”. The first objective in Section 98A(2)(a) and (b) Crimes Act 1961 of New Zealand, and Section 93A(1) Crimes Act 1900 of New South Wales, also reflect this element, targeting criminal organizations that aim to commit serious offences in order to make financial or other material profit. China's definition in Article 294(1) of Criminal Law of 1997, Macau's Article 1(1) in the Organized Crime Law of 1997, and Japan's Anti-Boryokudan Law are expressed in similar terms by referring to illicit profits and economic gain. In Macau, it is necessary to show that the organization seeks to gain illicit “advantages or benefits” through particular criminal offences.Footnote 91

Several jurisdictions extend the “purpose element” beyond monetary profits to other benefits. The Palermo Convention also applies to “other material benefit”, which includes non-material gratification such as sexual servicesFootnote 92 “to ensure that organizations [engaged in] trafficking in human beings or child pornography for sexual and not monetary reasons are not excluded”.Footnote 93 In Canada and in the Australian federal Criminal Code, the benefit that the organization is aiming for also need not be economic and the exact meaning of what may constitute a material benefit is left to judicial interpretation.Footnote 94 In R v. Leclerc, for instance, it was held that providing a criminal organization with an increased presence on a particular territory (e.g. turf in the illicit drug market) can be a benefit.Footnote 95

The meaning of criminal organization is extended in a number of jurisdictions to capture those groups that engage in violent crimes that serve no economic purpose. This is the case in New Zealand and New South Wales, where organized criminal groups can also consist of syndicates aiming to commit “serious violent offences” that involve the loss of life, serious bodily injury, or serious threats of bodily injury.Footnote 96 In Hong Kong, the purpose of the criminal organization has to be one of several serious offences that are frequently carried out by criminal organizations, such as murder, assault, kidnapping, importation of contraband, immigration and drug offences, gambling offences, triad offences, loan sharking, and offences involving firearms or other weapons.Footnote 97

Some jurisdictions have adopted open-ended definitions that do not require proof of the specific purposes of the criminal organization. Article 26 of the Penal Law 1997 of China also “does not require that the crime at issue be of a certain level of severity, nor does it specify that the goal be to obtain a financial or other material benefit”.Footnote 98

Canada's definition of the term “organized crime group” has been the subject of criticism, as the criminal purpose does not have to be the sole objective of the organization. Section 467.1(1)(b) Criminal Code of Canada states that the organized crime group must have “as one of its main purposes or main activities the facilitation of one or more serious offences”. This means that any serious offence—however natured—can be envisaged by the criminal group and that the facilitation of serious offences can be one of several purposes of the organization. Judicial decisions in Canada also reject the notion of specifying particular offences or purposes, arguing that “[t]here is no such thing as a ‘type’ of crime ‘normally’ committed by criminal organizations” and that “the conduct targeted by the legislation does not lend itself to particularization of a closed list of offences”.Footnote 99 Similarly, in Chinese Taipei (Taiwan), the purpose of criminal organizations has to relate predominantly to criminal activities; it is not limited to specific criminal acts or to activities that are economic or violent in nature. Because the criminal purpose in Canada and Chinese Taipei (Taiwan) does not have to be the sole objective of the organization, it is also possible to capture legitimate organizations (and their members) that engage in illicit activities. These definitions thus have the ability to capture corporations that engage in criminal offences. But it also creates a danger that social and other legitimate groups may be targeted—a concern that has also been raised in relation to the definition in New Zealand.Footnote 100

The disadvantage of other non-profit oriented and open-ended definitions is that they shift the focus away from the immediate problem of organized crime. They create the possibility that the organized crime laws can also be used against politically motivated groups and terrorist organizations. International law, however, has recommended that “groups with purely political or social motives” be excluded from the definition of organized crime groups.Footnote 101

C. Activities of the Organization

The majority of definitions of criminal organization are not contingent upon proof of any actual criminal activity by that organization. One of the principal purposes of organized crime laws is the prevention of substantive criminal offences. Organized crime offences are designed as extensions to inchoate and secondary liability in order to stop criminal groups and their members from carrying out planned crimes. Requiring proof that the organization has (already) carried out a substantive offence would thus defeat this purpose.

It is then surprising that a number of jurisdictions include proof of actual joint activity by the group as an element of their respective definitions. For example, Section 2 of the Serious and Organized Crime Ordinance (Hong Kong) requires the commission of certain violent offences which involve either the loss (or threat of loss) of the life of any person, serious bodily or psychological harm to any person (or risk thereof), or serious loss of liberty of any person. The definition of “criminal organization of a syndicate nature” in Article 294(1) of the Criminal Law 1997 (China) also requires proof that certain offences such as corruption, extortion, or assaults have been committed by the group. The advantage of this approach is that it restricts the definition of criminal organization to groups with a proven criminal history and that it bases the definition on other substantive offences that operate within the established parameters and boundaries of the criminal law. The disadvantage is that these definitions can only be applied after a group has already engaged in potentially harmful conduct.

D. Enterprise

The term “enterprise”, as used in US RICO laws, shares many similarities with the definitions used elsewhere. RICO laws, however, do not use terms such as “organized crime group” or “criminal organization”.

RICO is deliberately designed to cover organized crime committed by criminal organizations as well as white-collar crime committed by corporations. In line with this objective, the term “enterprise” includes “any individual, partnership, corporation, association or other legal entity”.Footnote 102 Both legitimate and illegitimate businesses can be the subject of RICO enforcement.Footnote 103 For US federal RICO the enterprise must have a joint purpose, but that purpose need not be an illegal objective or a profit-related goal.Footnote 104

The relevant structural requirements are similar to those used to define criminal organizations elsewhere. In federal RICO, §1961(6), it is necessary that the entity has a continuing association that can be formal or informal. It is not required to have a hierarchical structure or formal membership, but the enterprise needs to be more than a random, ad hoc group of individuals. Within the enterprise, there has to be some sort of decision-making structure and some mechanism to direct or otherwise control the activities of the group.Footnote 105

E. Observations

Among the countries of the Asia Pacific region there is little consensus about the constituent elements of criminal organizations. Although the jurisdictions examined here conceptualize their definitions in similar ways, the scope and application of terms such as “organized crime group”, “enterprise”, and “criminal organization” vary greatly. These differences are reflective of wider contentions about the meaning and nature of organized crime within legislative, judicial, law enforcement, and academic circles.

In many jurisdictions, the organized crime laws are local responses to local problems. Definitions of criminal organizations are tailored accordingly to suit a particular phenomenon in a particular setting at a particular time. The provisions under the Societies Ordinance of Hong Kong, for example, are specifically designed to prevent associations with triad societies and to suppress their activities. Many of the criteria used to define triads, such as triad initiation rituals and triad language, reflect well-known characteristics of locally organized crime groups. Definitions in Canada, New Zealand, and South Australia were originally designed to suppress outlaw motorcycle gangs and some elements of the definition of organized crime group are cast specifically to reflect the structure of these gangs. Consequently, these definitions only capture the most visible groups but are ill-suited to capture other types of criminal organizations with less public structures and more clandestine activities.

The definition in international law and most other domestic laws is cast more widely to cover a diverse range of structures ranging from strict hierarchies to network-type criminal organizations. This allows enough flexibility to target a diverse range of associations and to respond to the ever-changing features and structures of organized crime.

While the flexibility of these definitions creates a clear advantage, concerns arise about how loosely a group of people can be associated and still be regarded as one criminal entity. In New South Wales and New Zealand, for instance, there are no safeguards to prevent using the legislation against a group of youths spraying graffiti. Spontaneous, random, and perhaps even accidental associations of people can be criminal groups as long they pursue one of the stated objectives. Some definitions are capable of capturing many groups involved in criminal activities even though these activities are not done for financial or other material gain. It is, however, this economic goal that is the principal characteristic of organized crime and that also features prominently in the Palermo Convention.

A. Inchoate and Secondary Liability

The experience of most jurisdictions has been that the requirements of inchoate and secondary liability frequently frustrate prosecutions of persons involved in organized crime. Many directors, members, associates, and other supporters of criminal organizations cannot be held criminally responsible for their role or activities within the parameters of traditional concepts of criminal liability. Accordingly, organized crime offences are designed to extend criminal responsibility beyond the usual boundaries.

The common feature of all the offences discussed here is the fact that they step outside the usual paradigm of criminal responsibility.

Organized crime offences extend liability beyond the scope of inchoate offences. They enable the criminalization of acts that occur at a point in time when liability for attempt would not yet arise. They also remove the need to prove an overt act which manifests the accused's intention to commit a specific offence. Creating liability for involvement in criminal organizations thus results in penalizing persons who engage in mere planning and preparation but who never come close to the execution of any crime. Moreover, it is conceivable to charge a person with “attempting to associate with a criminal organization” or “inciting to participate in a criminal group”, thus creating double-inchoate liability that criminalizes acts even further removed from any substantive criminal offence.

Organized crime offences also extend liability beyond the boundaries of accessorial and other forms of secondary liability. The mental elements of accessorial liability generally require that an accused holds specific knowledge about individual offences other co-participants and principals are engaged in. In other words, traditionally accessorial liability cannot arise for offences the accused does not know of. In contrast, for most organized crime offences it suffices that an accused was aware that a group he or she associates with may engage in criminal activities, or that the group may have a goal to do so. Actual knowledge or certainty is not required. Neither is it necessary to show that the accused intended to further or support the organization's goals and activities. Accordingly, it is possible, for instance, to hold liable a person who provides a criminal organization with firearms, other equipment, or money, but who may not be aware of the specific offences such material will be used for. Participants of this kind do not meet the threshold of the mental elements required for accessorial liability—but they would be liable for a number of offences identified in this study.

These extensions also constitute the principal point of contention:

B. Guilt by Association, Overbreadth, and Vagueness

Virtually every model in every jurisdiction explored in this article has come under attack for creating guilt by association and jeopardizing the presumption of innocence. There is a common perception that the offences relating to participation, membership, association, and support of criminal groups penalize people simply for their connection to illegal entities, thus violating basic civil liberties.

For example, in Chinese Taipei (Taiwan), the offences under the Organized Crime Control Act 1996 have been criticized for potentially infringing on the freedom of association which is protected under Chinese Taipei (Taiwan)'s Constitution.Footnote 108 There have equally been some concerns in Japan that the bōtaihō may violate constitutionally guaranteed rights such as the freedom of association and also the principle of equality of all citizens.Footnote 109 The same points have been made in Canada, New Zealand, Australia, and the United States.

The wide scope of many offences explored in this study has been criticized for overbreadth; many provisions and elements have been described as vague and their meaning as uncertain. Many jurisdictions have cast their offences deliberately wide to allow flexible adaptation to various types of groups and to capture different kinds of association. The common concern has been that the breadth of the offences is so broad and the interpretation of terms so wide that almost any person who associates with criminal organizations, however distant, can be targeted by these laws.

It is remarkable that, despite these widespread concerns, most judicial challenges of these laws have remained unsuccessful. For example, constitutional challenges against US federal and state RICO laws relating to vagueness, retrospectivity, double jeopardy, violation of freedom of association, cruel and unjust punishment, principles of equal protection, violation of due process, and intrusion of state sovereignty have all largely failed.Footnote 110 In Japan, where notorious crime groups have launched legal challenges against the Anti-Boryokudan Law, the courts have consistently upheld the statutory provisions.Footnote 111 No court action against Canada's organized crime offences in Section 467 of the Criminal Code has been successful, and the courts have repeatedly confirmed the provisions’ consistency with the Canadian Charter of Rights and Freedoms.Footnote 112

A. Law Enforcement

Many, if not most, countries in the Asia Pacific region maintain specialized units or agencies to prevent and suppress organized crime. In some jurisdictions they are separate, stand-alone organizations with special powers tailored to investigate and disrupt criminal organizations more effectively. In other places, regular police forces have organized crime squads or other divisions with expert staff.

Some jurisdictions, however, have no identifiable anti-organized crime agencies and the enforcement of relevant laws is left to regular police forces—if enforced at all. In Chinese Taipei (Taiwan), for example, the ambitious anti-organized crime laws have repeatedly been criticized for failing to create a specialized organization for their enforcement. There is also no regional and international organization that can assist in cross-border investigations of organized crime and facilitate the exchange of evidence, witnesses, and the extradition of offenders.

B. Costs and Resources

The enforcement of the offences discussed here is extremely expensive. The implementation of the offences creates new and large pools of offenders, especially if the offences apply to low-ranking members and loose associates of criminal organizations. Few, if any, police agencies in the region have the capacity to thoroughly investigate and arrest the great number of people that have some affiliation with organized crime groups:

The criminal justice and prison systems are also ill-equipped to efficiently deal with hundreds or thousands of new defendants. “Would criminalization result in trebling the overall prison population? Regardless of the cost of such a measure, would it be desirable?”, asks Peter Hill.Footnote 122 The complexity of investigations, prosecutions, and trials under the organized crime laws further adds to the costs. Police investigations and the preparation of prosecutions of organized crime are usually very lengthy and often extremely expensive. Trials are generally long and complicated, especially if multiple defendants are involved.

C. International Co-operation

The effectiveness of the organized crime offences is further limited by the diversity and discrepancy of approaches to organized crime in the region. No two jurisdictions discussed in this study adopt identical offences and most of the models identified earlier are incompatible and frequently highly conflicting. While the CTOC seeks to harmonize and standardize organized crime offences around the world, few countries have adopted provisions that are compatible with the international model and some jurisdictions fail or refuse to adopt the Convention altogether.

Furthermore, there is no regional or international forum to co-ordinate anti-organized crime policies, legislation, and their enforcement. Jennifer Smith also notes that because the Palermo Convention “lacks any measure to guarantee that parties fully implement its provisions or penalize violations, parties may disregard their obligations without repercussions from other parties or from an international body”.Footnote 123

D. Corruption

A further obstacle towards more effective implementation and enforcement of relevant organized crime offences is corruption. “Weak states”, notes Smith, “are unable to prosecute organized crime, and acquiescent, corrupt, and collusive states are unwilling to prosecute benefactors or collaborators from the world of organized crime.”Footnote 124 Hill asks:

The Palermo Convention has recognized the connection between organized crime and corruption by stipulating specific provisions, including offences, to prevent and suppress the bribery of government officials by criminal organizations.Footnote 126 A separate Convention Against Corruption has since been created.Footnote 127 Many countries, however, have been slow in implementing these provisions into their domestic systems, and some administrations continue to turn a blind eye to corrupt practices.

A. General Remarks

Importantly, the offences discussed here do not address the causes of organized crime and it is difficult to say with certainty whether organized crime has been reduced even where law enforcement and prosecutions were swift and penalties harsh. It is more likely that any success in arrests and convictions has been offset by other criminal organizations going deeper underground. This also reduces any chance of co-operation between gang members and police and makes the infiltration of these groups and the use of informants considerably harder.

Moreover, the introduction of special offences to penalize associations with criminal organizations has come at considerable cost. The organized crime laws mark a significant extension to criminal liability, though the limits of this extension are not clear.Footnote 128 There is a real risk that this type of legislation can be used against any segment of society that may be seen as undesirable and dangerous. The offences have the potential to criminalize legitimate organizations and their members, infringe upon basic human rights and civil liberties, and create guilt by association. “In seeking to address [organized crime] problems,” notes Dorean Koenig, “the solutions themselves have become problems. They have threatened to change the nature of the system of criminal justice … by greatly increasing the reach of the criminal law and enhancing sentences, while lessening the mens rea requirements.”Footnote 129 In short, the organized crime offences are considered by many as failures and as dangerous and unnecessary violations of civil rights.

But it is short-sighted to view the organized offences as the ultimate weapon and expect immediate solutions to a phenomenon that has emerged in diverse places and circumstances, and that has reached global dimensions. It is naive to think that the introduction of organized crime offences will immediately cause criminal organizations to “drive apart” and “make it impossible for them to continue as a group” so that the “gangs will simmer out”.Footnote 130

The uptake of these offences will naturally be very slow as police and prosecutors are cautious when using new laws, as they do not want to jeopardize their cases. This has been the experience in the United States, where the first significant cases went before the courts ten years after the introduction of the RICO Act. Experiences in Canada and New Zealand have been similar.

The new offences are, at best, a new tool to prevent and suppress organized crime in innovative ways. They seek to criminalize persons that have thus far been immune from prosecutions despite the persons’ intimate involvement in very serious offences. This article has shown that—if designed carefully—organized crime offences create an avenue to hold key directors, managers, and financiers of criminal organizations responsible. This, in turn, may destroy the larger criminal enterprises these leaders control.

Furthermore, despite its many flaws, the creation of the CTOC in 2000 is a milestone in the fight against criminal organizations. It “marks a turning point in the commitment of the community of states to cooperate against transnational crime”.Footnote 131 The framework proposed by the Convention offers a new set of tools that can assist investigators, courts, and prosecutors in addressing many aspects of organized crime more effectively. It also allows for the universal criminalization of organized crime. The criminal offences under the Palermo Convention are accompanied by measures that enhance investigations and law enforcement co-operation, both domestically and internationally.

B. Specific Recommendations

A number of recommendations emerge from the analysis.

First, insofar as the specific offences relating to organized crime are concerned, it is advisable to create a set of provisions that differentiate between different types and levels of involvement in a criminal group. Separate offences should be designed to distinguish the various roles and duties a person may occupy within a criminal organization. The offences should also recognize any intention or special knowledge an accused may have. Specifically, countries that have not already done so should consider introducing a special offence for organizers, leaders, and directors of criminal organization who have the intention to exercise this function and have a general knowledge of the nature and purpose of the organization. Furthermore, it is suggested to criminalize persons who deliberately finance criminal organizations, especially if they seek to gain material or other benefit in return.

Second, legislatures should explore the creation of offences (or aggravations to offences) that targets the involvement of criminal organizations in already existing substantive offences. This may include crimes such as “selling firearms to a criminal organization”, “trafficking drugs on behalf of a criminal organization”, or “recruiting victims of human trafficking for a criminal organization”. Here, the organized crime element operates as an aggravating factor to offences commonly associated with organized crime, which can justify the imposition of higher penalties.

Third, any definition of “criminal organization” or of similar terms should be designed to reflect the unique characteristics of organized crime. Such a definition must also ensure that anti-criminal organization laws are not used against legitimate groups, political parties, or organizations pursuing religious or ideological causes, no matter how criminal their pursuits may be. The prevention and suppression of organized crime offences must not be used as a pretext to eliminate political rivals, outlaw social groups, or to combat terrorism. Any definition of “criminal organization” must therefore reflect the structural features and the specific purposes of organized crime. It is desirable to limit this definition to organizations with a proven functional connection between the persons constituting the group, a continuing existence, and with the purpose of gaining illicit profits or other material benefits.