Chairman of the Council of Procurators General (1995-1998)
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Nowadays discussions on international crime are filled with military terminology. Just think of the fight against organised crime or the war on drugs. Therefore, you should not hold it against me that I start with a quotation from a great military strategist. I quote from Clausewitz’s Vom Kriege: ‘Attack and defence are elements of a different nature and of unequal strength. Consequently, polarity is not applicable here.’
The gist of the paragraphs in which he explains this is, that defence is not the reverse of attack. In other words, if you don’t want to be attacked, you should not defend yourself, but make sure that you will not be attacked.
I’m saying this because I’ve got a feeling that so far in combating serious forms of crime, we have adopted a reactive pattern all too easily. There was a crime, so we prosecuted, and if it occured frequently, we tried perhaps to find the immediate cause of the crime and to remove this. Much legislation developed along this reactive line is called anti-legislation: anti-terrorism, anti-fraud, anti-tax evasion.
But however useful as it is, I wonder whether it isn’t about time to take a step down in reasoning, as Clausewitz advocated. Can this reactive strategy be as useful in the future as it was in the past? Here I’d like to argue in favour of a different mode of thought, where the stress does not lie upon defence, but upon not being attacked.
We have to acknowledge that international crime has existed for a long time now and that instead of having decreased, it looks as if it has increased considerably and will be increasing still. Anyway, this does not mean that what has been done would be wrong or ineffective.
For nowadays all human activity shows aspects of internationalization and globalization in a way and to an extent which are unprecedented in human history. The moving force behind this consists of at least two key elements, namely the technological developments in both the fields of transport and of information technology. These days one can travel from any place in the world without too much trouble. A person equipped with a computer and a modem can direct money, goods and services all over the world from his easy chair.
Considering the fact that the only body which has been able and allowed to threaten a criminal’s existence so far is the national State, we are faced with the alarming fact that the national State lacks several qualities which a successful international criminal does have. First of all, States are strictly bound to their territory. Besides, they are committed to rules and therefore not flexible, and in addition they are public, so in certain aspects predictable and easy to dodge. So it is not easy for a government to deal with organized crime: it is as if a turtle is trying to catch a hare.
International crime, on the other hand, does well by this process of internationalization and globalization. Crime on an international level is strictly business. There is no room for crimes of passion. No one has profited like the criminal from the revolutionary developments in transport and information technology.
Illegal products can now be made where the cost of production is the lowest and subsequently sold where the prices are the highest. Therefore it is possible that coca leaves are grown in Bolivia, then processed into cocaine in Colombia and that the finished product ends up in Dutch noses for lots of money. Whether it is drugs or South American prostitutes, the product crosses many borders before it is brought onto the market. In that respect ‘Nederwiet’ is the exception which proves the rule: not only is it a popular article for export but it also sells like hot cakes in its country of production. In their professionality the large criminal organizations are equal to multinationals. They develop their products at an ever-increasing speed, their technological power is growing, their forms of organization are highly modernistic and their defence against law enforcement gradually gets more effective.
A sharp contrast with the national states!
Can the battle still be won when we have to face this alarming prospect?
The comparison with immunization of germs or insects thrusts itself upon me, but wasn’t the idea behind this that not they but we should become immune?
In short, it does not make sense if we pin ourselves down to a law enforcement race that we – considering the nature of our opponent and our own weaknesses – will never be able to win. Whatever strategy we choose, it must always consist of more than just one component.
To illustrate this, it is important to indicate some common characteristics of international crime. I quote from a report to the European Parliament from the European Commission on Public Freedoms and Internal Affairs. ‘The type of crime varies in the different countries according to the geographical, social and economic situation. Criminal offences are mainly committed in the following fields: drug trafficking, subsidy and investment fraud, illegal games of chance, extortion of money for protection, prostitution, traffic in people, art robbery, trade in stolen cars, production and circulation of counterfeit money, arms smuggling, environmental crime, money laundering, bribing of public administration and political leaders.’
It is not easy to judge all these manifestations according to the same standard, but I think they can be divided as follows:
There are crimes aimed at
– bringing illegal goods, services and money into the legal economy, such as drug trafficking or prostitution;
– withdrawing goods, services and money from the economy in an illegal way, such as tax fraud or extortion.
All manifestations of crime which I have mentioned, have a number of common characteristics: it is always necessary to legalize the profit gained by crime, like through money laundering or legalization of goods or services. Then there is always, especially in international crime, the government which has to be either evaded or involved in the matter. The government has roughly three roles: it legalizes or grants permission, it is a victim or it upholds justice.
In a nutshell: the fight seems to involve three aspects, namely the creation of illegal profit, the legalization of this illegal profit and the special role of the government.
In view of these three aspects, I shall attempt to show that we should not limit ourselves to repression, to the apprehension and subsequent conviction of criminals.
First of all, there is the creation of illegal profit. The criminal needs an illegal market. Without it he is just an entrepreneur. An illegal market is created because the trade in a particular product is punishable. The risk is high, but the profit margins are high for the trader who is willing to take that risk. There must be sufficient demand and the criminal must be able to place his product on sale. As soon as one of these links falls away, there is no illegal profit and therefore no crime. So in this area cooperating governments can achieve results. For instance, the demand on the illegal market will disappear, when there are adequate legal alternatives. For instance, cheap legal possibilities for processing chemical waste will make illegal dumping superfluous.
As an example I’d like to discuss a way in which production can be dealt with. For years there has been strict international supervision of the trade in strategic goods. During the Cold War the Western countries have agreed upon this in order to prevent the enemy at the time, the Eastern bloc, for being able to freely dispose of our arms technology.
‘Strategic goods’ does not only comprise weaponry but also those objects or materials that can be used for the production of conventional, nuclear, biological or chemical weapons. This system of supervision has functioned fairly well, especially because individual states were willing to subject their own national interests to international peace and security.
A similar policy is also conceivable in the fight against international crime. Cautious steps have been taken to regulate the trade in certain chemicals necessary for the production of drugs. I believe that organized crime can be dealt a heavy blow when the criminals can no longer dispose freely of all sorts of chemical ingredients. I cannot see why it would not be possible to reach the same consensus from the days of the Cold War with regard to the war against crime.
Crime can only pay when the criminal is able to capitalize his illegal profits in the legal economy. These past few years numerous measures have been taken to prevent just that.
In the United States they go to considerable lengths in confiscating real estate upon which drug transactions have taken place. So you can get procedures such as ‘The United States vs. One Parcel of Real Estate Located at 7715 Betsy Bruce Lane’.
In this country several new laws on money laundering and the confiscation of illegal profit have come into effect.
We are on the right track, but we still have a long way to go. Now it is unfortunately the case that large illegal financial transactions can still be hidden from the view of the State. It is therefore not unlikely that we are evolving towards a system in winch convicted members of criminal organizations can dispose of money and goods only if it is proven that those have been obtained in a legal way. By the way, such a reversal of the burden of proof is quite common in tax law.
Finally, I want to mention the special role of the government. Even though the government is the only opponent of organized crime, the latter also has a kind of parasitic relationship with the same government.
Firstly, the State is a victim of organized crime. Just think about tax fraud and, on an international level, EEC fraud.
Furthermore, the State creates the possibility of illegal profit: without penalization there are no illegal goods or services. In addition, the government can facilitate criminal behaviour. Through official subsidies and permits semi-legal companies can penetrate into the legal economy.
This complex division of roles requires alertness on the part of the government. If it has no eye for these other roles and the way in which criminal organizations can benefit from them, it is too late and the government can only act repressively, as law enforcer. In its role of legislator the government should not only pay attention to the direct interest it is trying to protect, but also to the possible opportunity for illegal profit that is created.
Before a limited company is allowed to participate in economic life, it must be checked scrupulously. The same applies when a subsidy or permit is requested.
I have just argued that we should not only look at repression in our fight against organized crime. International judicial cooperation requires much more than just catching the bad guys as efficiently as possible. The common effort must be aimed at the creation of such conditions that the bad guys will get nowhere at all.
The national States will have to make sure that they have done everything in their power, both individually and in cooperation, to make both the creation and the legalization of illegal profit impossible.
It is no use when the turtle tries to outrun the hare, but a smart turtle can see to it that all the escape routes are sealed off, so that the hare is automatically driven into a trap. Thus even the turtle can catch a hare.
My plea is summarized concisely by Sun Tzu, a Chinese strategist of the fourth century B.C. He writes: ‘To win one hundred victories in one hundred battles is not the acme of skill. To secure the enemy without fighting is the acme of skill. What is of supreme importance is to attack the enemies’ strategy.’ In my opinion, this is where victory is to be found in the fight against international crime.
Nevertheless battles are unavoidable: in the future repression will still be called for. And in that domain the next speaker has certainly won his spurs. I might even say that Mr Kendall is the incarnation of international police cooperation. Not only because he was already active as a policeman in Uganda many years ago. Nor because he has been working in France for years, which is unusual or even unnatural for an Englishman. But especially because for quite some time now he has been Secretary General of Interpol, actually one of the first successful attempts to get the national police forces to cooperate. In the booklet that accompanied your invitation for tonight you may have read that we are not the only ones who appreciate his presence. Numerous criminal and terrorist organizations seem to be interested in him. It is therefore an honour that Mr Kendall has been willing to take the risk to instruct us from his perspective on ‘Law enforcement in Europe’ and I am pleased to ask your attention for Mr Raymond Kendall.