Even as serious state-level crime and the perceptions of it endanger the stability of imperfect democratic regimes or failing autocracies, the means to address this predicament with national resources or international support appear more elusive than ever.
As mentioned above, the concept of organized crime, which is itself a contested term with multiple rival definitions, is ill-suited to capturing the mercurial, opportunistic arrangements that bring together high-level officials, private sector actors and low-level operatives in criminal endeavours. On many occasions, as in the case of former Ukrainian President Yanukovych’s manipulation of the judicial system, the levers through which criminal activity was facilitated were in certain cases legal, if not wholly legitimate: the rotation of dissident judges and the use of disciplinary proceedings against them were common techniques. At the other extreme, an analysis of the network that made possible the disappearance of trainee teachers in Mexico last year would seem to extend culpability into numerous branches of the state, as well as two national political parties. Here the concern is different: so prevalent is complicity or tolerance that binary notions of law-abiding officials who are opposed to violent criminal actors may no longer apply. “Articulating the problem of organized crime and its entrenchment in the Tierra Caliente as a matter of good people versus bad people was one of the errors of [former President] Felipe Calderón’s government,” the Mexican journalist Denise Marker has argued. “Seen from outside, without any knowledge of the area and its history, all the region’s inhabitants might be defined as bad.”
Any assessment of national and international policies towards organized crime, and their shortcomings in practice, must begin by recognizing the ways in which crime is deeply embedded in society and politics. The process of criminal entrenchment depends greatly on time and place: the examples offered by the Colombian city of Medellín in the 1970s (source of Pablo Escobar’s infamous cocaine-trafficking cartel) and northern Mali three decades later suggest that a structural change in people’s livelihoods alongside pragmatic political collusion in this shift are prerequisites for a generalized shift in public attitudes to crime. For instance, Escobar’s huge economic influence was predicated on the collapse of the city’s cotton industry. Mali’s shift to illicit trafficking in drugs and arms came about after substantial investments were made in coastal trade facilities across North and West Africa, starving the trans-Saharan route of conventional commercial opportunities.
Once embedded in everyday social and economic practice, complicity with crime can become de facto inescapable: in the northern Honduran town of La Ceiba, the fourth most violent city in the country in 2014, “many customers, who are perhaps not always involved in narco-trafficking, strike up conversations in the clinic, the beauty salon, or the workshop. And the storekeeper, unable to escape… ends up loaded with secrets that he or she never asked to hear.” In West Africa and the Sahel, according to the lapidary analysis of one recent report based on fieldwork, “illicit trafficking and organised crime are not considered criminal behaviour in the communities interviewed: they are merely modes de vie – ways of life.”
This embedding of criminal practice at the community level has signalled a need to consider policy responses beyond traditional law enforcement and imprisonment. Mass incarceration, as the examples of El Salvador and Honduras show, has simply led to stronger and far more violent forms of criminal organization, raising the question as to whether some negotiated accommodation or mediation with criminal groups – however undesirable this might at first appear – could not be a preferable alternative. At the same time, the failure of the attempted truce with gangs in El Salvador has provided a sobering reminder of how difficult a more developmental or humanitarian approach to these issues can be.
It is not within the scope of this paper to explore in depth the issue of mediation with criminal groups, nor the emerging policy agenda as to how development and humanitarian actors rather than security forces may deal with highly criminalized, violent environments. However, it is essential to note that the possibilities for innovative policy responses to criminalized territories – involving broader institutional or judicial reform, or even efforts at cultural change – are themselves circumscribed by the embedding of criminal influence in national elites, and particularly in central governments.
The links to the state
Criminal linkages to the state are far from being a novel concern. The very rise of Western states is considered by Charles Tilly and others to have depended on the establishment of larger and better-resourced protection rackets. More radical authors have regarded illicit activity as part of the very fibre and functioning of modern capitalism, while the criminalization of states in recent decades has received abundant attention from a number of different perspectives, encompassing in the process almost every region in the world. The influence of neo-liberal market reforms on this process, whether by dismantling state oversight bodies or encouraging the outsourcing of public works and services (and thus corruption in procurement), has been widely noted.
Naturally, the illicit predisposition of national political elites, most notably nowadays in Central America and in West Africa, points to another fundamental impediment to tackling the systemic presence of crime and corruption in governance. For now, the international legal and regulatory apparatus to combat serious crimes that do not break humanitarian or human rights law remains extremely weak: criminal law and prosecution is predominantly national, international police co-operation is voluntary and restricted, while the main conventions on organized criminal matters are not binding on member states in any meaningful sense. As a result, the United Nations Office on Drugs and Crime (UNODC) suffers a number of structural weaknesses, not least in terms of its core funding.
According to anti-corruption expert Edgardo Buscaglia, of a sample of 108 countries that have ratified UN conventions against crime and corruption, 86 per cent have introduced legal mechanisms to fight corruption and organized crime on the basis of international standards. However, only 14 per cent of the sample countries actually comply in practice with these legal requirements. Moreover, the risks arising from non-compliance are relatively low. A 2012 assessment revealed that the most important multilateral anti-corruption agreements – the United Nations Convention Against Corruption (UNCAC), the Financial Action Task Force (FATF), the Extractive Industries Transparency Initiative (EITI), and StAR (Stolen Asset Recovery Initiative) – all have a limited impact on state compliance. The main reasons for the weakness of these instruments are the lack of any sanctions or real reputational cost when norms are violated, and the essentially voluntary nature of the transparency requirements. Meanwhile, in the case of money laundering, it has been argued that the lack of coordination between global anti-corruption and anti-money laundering bodies leads to missed opportunities for controls in developing countries.
International agreements and supervisory organizations that are non-binding may even be counterproductive, serving as a ‘fig leaf’ for governments to hide behind while continuing their illicit practices. In the worst cases, nominal compliance with these agreements can even open the door to increased financial support from donors, which is then captured by predatory elites. According to one recent report, “the emergence of states where organized criminal groups have overwhelming influence over political and state institutions completely undermines the very concept of international law enforcement cooperation”.
This absence of a strong international framework to tackle serious and organized crime nonetheless does not mean that international responses are wholly absent. Counter-narcotic interventions and judicial extraditions have long been used by the United States in numerous countries, while robust policing and prosecution as part of UN or other peacekeeping missions (notably in Haiti under MINUSTAH, or through EULEX in Kosovo) are by now well-established features of international anti-crime policy. Likewise, active pursuit by the US government of money laundering and sanctions evasion in international circles of high finance has proved critical to judicial actions taken against HSBC, BNP Paribas and the Banca Privada d’Andorra. As is well known, the most recent action of this sort by the US Department of Justice has involved a full-fledged judicial offensive against corruption in world football’s governing body, FIFA.
However, these somewhat informal, and very often unilateral forms of engagement – many of them geared towards disrupting drug trafficking and now increasingly human trafficking – tend to answer primarily to the needs and concerns of powerful countries. Most importantly, in the case of many of the measures taken against drug and human trafficking, they simply divert the trade to areas where national political authorities are even more hospitable to collusion, or where violent armed groups can ensure uninterrupted supply.