International Cooperation in Crimimal Matters

INTERNATIONAL COOPERATION IN CRIMIMAL MATTERS

A CARIBBEAN PERSPECTIVE

CHARLES LEACOCK, Q.C. LL.M. (Lond.) Director of Public Prosecutions Barbados

March 23-25, 2009 Parliament Palace Bucharest Romania INTERNATIONAL COOPERATION IN CRIMIMAL MATTERS

A CARIBBEAN PERSPECTIVE

Two decades ago, very little thought was given to global crime trends. Anecdotes of the Sicilian Mafia, Chinese triad and the exploits of Al Capone seem distinct and peculiar to the respective societies. The advent of technology has changed everything! The new information age introduced computers, satellite transmissions and the internet. A global village has been spawned with no turning back. Regrettably, all of the advancements were paralleled with misuse by criminals. The scope of the criminal law has been parochial and territorial. As a result, crimes moved from territorial to trans- boundary and international in character.

NEW TYPOLOGIES

The internationalisation of crime has been characterised by new methods of offending. The proliferation of the drug trade with all of its attendant by-products present the major challenges. Gang warfare and contract homicides were overtaken by money laundering, tax evasion, arms smuggling, trade in women and children, prostitution and computer hacking. The Internet has enabled online banking, casinos, piracy, pornography and sales of every sort. The reach of the criminal law has been tested and out manoeuvred . The development of telemarketing on a global scale has proven problematic.

Economies like Barbados, based on small land area, population, and gross national product have witnessed much stress. Under the sheer volume of transactions and interdependence, the challenge to determine much less control offending is evident. The promise by potential investors to create employment is always attractive. However, serious evaluations of such potential investors whether individual, corporate or institutional cannot be overstated. Recent examples of Bernard Madoff in the United States of America and Allen Stanford in Antigua readily come to mind.

-1- INTERNATIONAL MARITIME COOPERATION

The Legislation in Barbados on International maritime Cooperation commenced on 10 th September, 1998. Provision was made for Ship Riders on the law enforcement vessels of participating states. The emoluments clause in US Legislation did not constitute any legal impediment to such functional cooperation.

Drug traffickers use a 6 million square mile area that includes the Caribbean Sea, the Gulf of Mexico, Central America, the northern coast of South America, Mexico, and the Eastern pacific - commonly referred to as the “transit zone” - to move illegal drugs into the United States AND Europe.

Cooperation on security matters is the most important and functional aspect of such international relationships. The region is a proven committed partner in the war against narcotic drugs and other aspects of transnational organised crimes. At the same time the continued emphasis on the rule of law, economic progress and social stability form the best antidotes to the drug trade and transnational organised crimes.

The Caribbean Islands generally and Barbados in particular, with 67 miles of coastline find it challenging to effectively police their borders. The fact that the Caribbean is located conveniently between the major producers and consumers of narcotics substances provides transhipment issues of major proportions. Maritime international cooperation between the US and Caribbean is spearheaded by the Southern Command of the US Coast Guard. It provides invaluable resources through intelligence and operational capabilities in this long term engagement against narcotics trafficking and its related evils of money laundering and arms trafficking. Aggressive interdiction efforts to curtail the movement of illegal substances continues unabated despite the ingenuity of the drug traffickers.

-2- The Caribbean continues to undertake meaningful eradication programmes of marijuana as seen in St. Vincent where thousands of plants were destroyed. However, continuous efforts are needed in countries where cultivation and production are persistent and organised. The support given by the Western governments to regional security by the donation of aircrafts and vessels has enhanced the regional capacity to effectively challenge the well funded and organised criminal organisations involved in narcotics trafficking.

STRUCTURE OF MARITIME AGREEMENTS

The USA has signed several Maritime Cooperation Agreements with transit zone countries. The basic features of such bilateral treaties are:

-3- 1. Ship Boarding - Confers the right for the US Coast Guard to stop, board and search foreign vessels suspected of illicit trafficking located seaward of the territorial sea of any such nation.

2. Ship Rider - Gives standing authority to embark law enforcement officials on vessels and platforms of the parties. These officials may then authorise certain law enforcement actions.

3. Pursuit - Gives standing authority for law enforcement operatives to pursue fleeing vessels or aircraft suspected of illicit drug traffic into foreign waters or airspace. The power may include authority to stop, board and search such vessels.

4. Entry to Investigate - Provides for standing authority for law enforcement personnel to enter foreign waters or airspace to investigate vessels or aircrafts located therein suspected of illicit drug trafficking. The power to search, board and stop such vessels is included.

5. Over Flight - Gives standing authority for US law enforcement personnel to fly in foreign air space when in support of counter drug operations.

6. Order to Land - This right confers standing authority for US law enforcement personnel to order aircrafts, suspected of illicit drug trading to land in host nations.

The specific terms of the bilateral agreements varied. For example, the Dominican Republic had granted temporary over flight authority for its territorial waters to dissuade and detect illegal migration and illegal drug trafficking.

The US - Belize agreement allows US Coast Guard personnel to board suspected Belizean - flagged vessels on the high seas without prior notification to the Government

-4- of Belize. Moreover, the US-Panama bilateral agreement contains restrictions that require US Coast Guard vessels operating in Panamanian territorial waters to be escorted by a Government of Panama Ship.

MONEY LAUNDERING

The Caribbean recognises that a functional aspect of the fight against transnational organised crimes is the need to deprive criminals of the ill gotten gains that sustain their operations. Much legislation has been enacted that seeks to monitor, control and seize such proceeds of crimes. Recently amendments to the anti-money laundering regime in Barbados is ample proof of such a commitment. Moreover, Barbados has recently in 2008 completed a mutual evaluation of its anti-money laundering capabilities by the Caribbean Financial Action Task Force.

MUTUAL LEGAL ASSISTANCE

The law and practice relating to extradition have developed rapidly in the last two decades. The same compelling factors of social, commercial and legal reasons have spurred parallel developments relating to the law and practice of mutual legal assistance. No nation is alone as the effects of globalization have created a global village with increasing international mobility along with electronic trade and commerce. The world is now spawned with legal and regulatory treaties, along with memoranda of understanding all seeking to deter and combat crime. The tracking of criminals, in the hope of reducing their scope of criminality and immobilization of their assets, is of primary concern.

Mutual legal assistance is basically the means whereby states provide assistance to another in the investigation and prosecution of criminal offences. Legal assistance is normally required in written form including sworn evidence taken under oath, search

-5- and seizure of physical evidence, including computer records, service of judicial documents and orders and the arrangements for witnesses to appear, whether in custody or not. Mutual legal assistance may be sought at any stage from investigations until exhaustion of appellate proceedings.

LEGAL CONDITIONALITIES

In a global context, the current prerequisites for mutual legal assistance may generally be classified as (1) RECIPROCITY (2) SPECIALITY (3) EVIDENCE and (4) COMITY.

Currently, under the Mutual Legal Assistance Act, Chapter 140A,Barbados may extend assistance to all 1988 Vienna Convention countries. By treaty, the provisions of the said Act are applicable to the USA as is the case of most CARICOM states. However, there is no strict necessity for reciprocity for Commonwealth countries. The Attorney General needs to be satisfied for purposes of specialty that: - a) an investigation has been certified by the Central Authority of a Commonwealth country to have commenced; or b) proceedings, so certified to be criminal proceedings, have been instituted.

There are no pre-conditions governing the form in which requests are presented or as to the nature of any accompanying evidence. Fiscal offences per se are not covered but, may be investigated as part of a general criminal investigation.

The eliminative approach of the “list system” has been overtaken as the domestic legislation underpinning the system of mutual assistance adopts a flexible approach to novel offences in criminality. New threats such as insider dealing, financial crimes, market manipulation and money laundering are covered and assistance may be rendered.

-6- NEW CONCERNS

New areas of functional cooperation are likely to confront International cooperation in the fight against transnational crimes. Areas such as seabed mining, biodiversity, epidemics and exhaustion of fish stock, must all be addressed along with current realities of narcotics trafficking, money laundering, arms trafficking, corruption and terrorism. The United Nations Conventional Against Transnational Organized Crimes with its three Optional Protocols in 2000 has given added impetus to the ongoing fight.

The establishment of the International Criminal Court in 2002 in the Hague, Netherlands must be welcomed. This institution seeks to end impunity and holds accountable individuals whose countries might be unable or unwilling to prosecute them. The first trial of Jean Pierre Bemba has started in the Hague in February, 2009. The Bemba case highlights a resolve to address violence against women and children while ensuring effective state cooperation. The need to enhance the Universality of the International Criminal Court cannot be over emphasised.

The International Criminal Court may prove to be a permanent institution to assist in maintaining a strong deterrent to persons in commanding and leading positions especially during conflicts and tensions. There must be an enhanced respect for human rights and the rule of law.

CONCLUSION

It is imperative that laws and procedures in our jurisdictions do not lag behind criminal ingenuity. Citizens deserve the protection of the law and the deterrent value of criminal sanctions. Globalization has facilitated foreign investments, trading via the internet and telemarketing worldwide. The shop front is now on every computer screen. The emergence of e-commerce has challenged our jurisprudence, legal proceedings and the traditional territoriality principle of our criminal courts.

-7- It is clear that domestic legislation must provide efficient and effective access to evidence, suspects and witnesses. Crimes must be investigated, prosecuted and punished effectively. Accordingly, access and assistance to secure such objectives do not amount to enforcing the laws of another state. Procedures of mutual legal assistance and international cooperation do no more than reflect the basic expressions of international comity so fundamental to the fight against transnational crimes.