The New Faces of Victimhood: Globalization, Transnational Crimes and Victim Rights

THE NEW FACES OF VICTIMHOOD

STUDIES IN GLOBAL JUSTICE VOLUME 8 Series Editor Deen K. Chatterjee, University of Utah, Salt Lake City, UT, U.S.A. Editorial Board Elizabeth Ashford, University of St. Andrews, U.K. Gillian Brock, University of Auckland, New Zealand Simon Caney, Oxford University, U.K. Michael Doyle, Columbia University, U.S.A. Andreas Follesdal, University of Oslo, Norway Carol Gould, Temple University, U.S.A. Virginia Held, CUNY, U.S.A. Alison Jaggar, University of Colorado, U.S.A. Jon Mandle, SUNY, Albany, U.S.A. Onora O’Neill, The British Academy, U.K. Sanjay Reddy, Columbia University, Barnard College, U.S.A. Henry Shue, Oxford University, U.K. Kok-Chor Tan, University of Pennsylvania, U.S.A. Leif Wenar, University of Sheffield, U.K. Veronique Zanetti, University of Bielefeld, Germany Aims and Scope In today’s world, national borders seem irrelevant when it comes to international crime and terrorism. Likewise, human rights, poverty, inequality, democracy, development, trade, bioethics, hunger, war and peace are all issues of global rather than national justice. The fact that mass demonstrations are organized whenever the world’s governments and politicians gather to discuss such major international issues is testimony to a widespread appeal for justice around the world. Discussions of global justice are not limited to the fields of political philosophy and political theory. In fact, research concerning global justice quite often requires an interdisciplinary approach. It involves aspects of ethics, law, human rights, international relations, sociology, economics, public health, and ecology. Springer’s new series Studies in Global Justice up that interdisciplinary perspective. The series brings together outstanding monographs and anthologies that deal with both basic normative theorizing and its institutional applications. The volumes in the series discuss such aspects of global justice as the scope of social justice, the moral significance of borders, global inequality and poverty, the justification and content of human rights, the aims and methods of development, global environmental justice, global bioethics, the global institutional order and the justice of intervention and war. Volumes in this series will prove of great relevance to researchers, educators and students, as well as politicians, policy-makers and government officials. For further volumes: http://www.springer.com/series/6958

The New Faces of Victimhood Globalization, Transnational Crimes and Victim Rights

Edited by

RIANNE LETSCHERT Tilburg University, The Netherlands

JAN VAN DIJK Tilburg University, The Netherlands

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Editors Dr. Rianne Letschert International Victimology Institute (INTERVICT) Tilburg University PO Box 90153 5000 LE Tilburg Netherlands [email protected]

Prof. Jan van Dijk International Victimology Institute (INTERVICT) Tilburg University PO Box 90153 5000 LE Tilburg Netherlands [email protected]

ISSN 1871-0409 ISBN 978-90-481-9019-5 e-ISBN 978-90-481-9020-1 DOI 10.1007/978-90-481-9020-1 Springer Dordrecht Heidelberg London New York © Springer Science+Business Media B.V. 2011 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)

Preface

This volume originated from a shared interest of different senior and junior members of Tilburg Law School in analysing victimization by crime from different angles. When the idea came up to combine our mutual research interests, it became clear that in each and everyone’s research field, processes of globalization increasingly posed new complexities and questions that have not yet been sufficiently addressed. Our discussions started somewhere in 2007, leading ultimately to a common theme of globalization, transnational crimes and victim’s rights. The authors are all research fellows or staff members of the International Victimology Institute, a research institute in The Netherlands focusing on interdisciplinary research on victims that can contribute to a comprehensive, evidence-based body of knowledge on the empowerment and support of victims of crime and abuse of power. We thank our colleagues for their willingness to cooperate in this book project and their patience in awaiting the final result. This volume is part of the series ‘Studies in Global Justice’ of Springer Publications. We thank the series editor, Prof. Deen Chatterjee as well as the independent peer reviewers for their thoughtful and insightful remarks to the first draft of the manuscript. We furthermore express our appreciation to Neil Olivier and Diana Nijenhuijzen from Springer Publishing in assisting us in the final preparation of the book. Lastly, we wish to thank Hedwig Suurmeijer for the English editing of the book. Tilburg, The Netherlands

Rianne Letschert Jan van Dijk

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Contents

Part I

Introductions and Overviews

1 New Faces of Victimhood: Reflections on the Unjust Sides of Globalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rianne Letschert and Jan van Dijk

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2 Global Governance and Global Crime – Do Victims Fall in Between? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rianne Letschert and Marc Groenhuijsen

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3 Human Security and the Emergence of a Global Conscience . . . . . . . . . . . . . . . . . . . . . . . . Ralf Bodelier

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Part II

Victims of Transnational Crimes

4 Trafficking for Sexual Purposes as a Globalized Shadow Economy: Human Security as the Tool to Facilitate a Human Rights Based Approach . . . . . . . . . . . . . . . . . . Conny Rijken and Renée Römkens

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5 Transnational Organized Crime, Civil Society and Victim Empowerment . . . . . . . . . . . . . . . . . . . . . . Jan van Dijk

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6 Victims of Environmental Pollution in the Slipstream of Globalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jonathan Verschuuren and Steve Kuchta

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Part III Victim Protection in Cyberspace 7 The Challenge of Identity Theft in Multi-Level Governance: Towards a Coordinated Action Plan for Protecting and Empowering Victims . . . . . . . . . . . . . . Nicole van der Meulen and Bert-Jaap Koops

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8 International (Cyber)Stalking: Impediments to Investigation and Prosecution . . . . . . . . . . . . . . . . . . . Suzan van der Aa

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9 Digital Tools: Risks and Opportunities for Victims: Explorations in E-victimology . . . . . . . . . . . . . Corien Prins

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Part IV Victims of Conflicts and Wars 10 Al Qaeda and Vicarious Victims: Victimological Insights into Globalized Terrorism . . . . . . . . . . . . . . . . . . . . . . Antony Pemberton 11 Protecting the Victims of the Privatization of War . . . . . . . . . Willem van Genugten, Marie-José van der Heijden, and Nicola Jägers 12 Globalization and Victims’ Rights at the International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jo-Anne Wemmers and Anne-Marie de Brouwer Part V

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Conclusion

13 Reconstructing Victim-Centered Justice on a Global Scale . . . . Jan van Dijk and Rianne Letschert

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References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Contributors

Suzan van der Aa Senior researcher at INTERVICT, Tilburg University, Tilburg, The Netherlands, [email protected] Ralf Bodelier Research Fellow at Intervict, Valentijnstraat 19, 5014KE Tilburg, [email protected] Anne-Marie de Brouwer Tilburg University, Department of Criminal Law, PO Box 90153, 5000 LE, Tilburg, The Netherlands, [email protected] Jan van Dijk International Victimology Institute (INTERVICT), Tilburg University, 5000 LE Tilburg, The Netherlands, [email protected] Willem van Genugten School of Law, Tilburg University, 5000 LE, Tilburg, The Netherlands, [email protected] Marc Groenhuijsen International Victimology Institute (INTERVICT), Tilburg University, 5000 LE, Tilburg, The Netherlands, [email protected] Marie-José van der Heijden School of Law, Tilburg University, 5000 LE, Tilburg, The Netherlands, [email protected] Nicola Jägers School of Law, Tilburg University, 5000 LE, Tilburg, The Netherlands, [email protected] Steve Kuchta University of Connecticut, Storrs, Connecticut, USA, [email protected] Bert-Jaap Koops TILT – Tilburg Institute for Law, Technology, and Society, Tilburg, The Netherlands, [email protected] Rianne Letschert International Victimology Institute (INTERVICT), Tilburg University, 5000 LE Tilburg, The Netherlands, [email protected] Nicole van der Meulen HEC – The Centre of Expertise, The Hague, The Netherlands, [email protected]

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Contributors

Antony Pemberton Senior researcher and research coordinator at INTERVICT, Tilburg University, PO Box 90153, 5000 LE Tilburg, The Netherlands, [email protected] Corien Prins Professor of Law and Informatisation at TILT, Tilburg University; council member Scientific Council for Government Policy (WRR), The Hangue, The Netherlands, [email protected] Conny Rijken Associate Professor, Senior Researcher INTERVICT, Department of European and International Public Law, International Victimology Institute/Tilburg University Law School, PO Box 90153, 5000 LE, Tilburg, The Netherlands, [email protected] Renée Römkens Professor of Interpersonal Violence/Victimology – INTERVICT International Victimology Institute/Tilburg University Law School, PO Box 90153, 5000 LE Tilburg, The Netherlands, [email protected] Jonathan Verschuuren Intervict and the Tilburg Sustainability Centre, Tilburg University, PO Box 90153, 5000 LE Tilburg, The Netherlands, [email protected] Jo-Anne Wemmers École de criminologie, Université de Montréal, C.P. 6128 succursale Centre-ville, Montréal, Québec, Canada, H3C 3J7, [email protected]

About the Authors

Dr. Suzan van der Aa (LL.M.) studied (criminal) law at Tilburg University. Since 1 September 2005, she has worked as a PhD Researcher at the International Victimology Institute Tilburg (INTERVICT). The topic of her thesis is “stalking in the Netherlands.” Furthermore, she is researcher in several EU funded projects on victims of crime in general and violence against women. As of June 2010, she will continue her work at INTERVICT as Assistant Professor. Ralf Bodelier (LL.M.) obtained a bachelor’s degree in history at Fontys University of Applied Sciences, and a master’s degree in theology at Tilburg University. For twelve years he lectured at The Academy for Journalism in his hometown Tilburg. He worked as a foreign correspondent in Africa and Eastern Europe for Dutch public radio and various national newspapers. Bodelier published seven books in Dutch and one in English: Cosmopolitans in 2008. Currently he runs a discussion center on global issues, and a small-scale publishing house. Dr. Anne-Marie de Brouwer is Associate Professor of (International) Criminal Law at the Department of Criminal Law of Tilburg University, the Netherlands, and Senior Research Fellow at the International Victimology Institute Tilburg (INTERVICT). Previously, she was Associate Legal Officer at the Women’s Initiatives for Gender Justice in The Hague. She is Chair of the Mukomeze Foundation, which aims to improve the lives of women and girls who survived sexual violence during the Rwandan genocide. Professor Dr. Jan van Dijk was Director of the Research and Documentation Centre of the Dutch Ministry of Justice. Between 1998 and 2005 he worked for the United Nations in Vienna and Turin. He acted as President of the World Society of Victimology between 1997 and 2000. In 2008 he received the Sellin-Glueck Award of the American Society of Criminology for his lifelong contribution to international criminology and victimology. He currently holds the Pieter van Vollenhoven chair in victimology and human security at Tilburg University (the Netherlands). Professor Dr. Willem van Genugten studied law and philosophy at Nijmegen University in the Netherlands. He graduated with distinction and cum laude respectively. He is currently Professor of International Law at Tilburg University, the

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Netherlands; Visiting Professor at Minnesota Law School (annually since 2000); Extraordinary Professor of International Law, North-West University, South Africa; chair of the Standing Committee on Human Rights of the Dutch Government; member of the ILA Committee on the Rights of Indigenous Peoples, and Senior Research Fellow at INTERVICT. Professor Dr. Marc Groenhuijsen is Professor of Criminal Law, Criminal Procedure and Victimology at Tilburg University in the Netherlands. In 2005, he became the Founding Director of INTERVICT, the International Victimology Institute Tilburg. He has published widely on various victims’ issues. Since 2009, he is President of the World Society of Victimology, member of the Board of Directors of the International Organization for Victim Assistance, and member of the Board of Directors of the International Society for Criminology. He also serves as a part-time judge in the Court of Appeal in Arnhem. Marie-Jose van der Heijden (LL.M, M.Phil) is Junior Legal Researcher and Lecturer at Tilburg University. She holds master’s degrees in law and philosophy. She is writing her PhD thesis on “Transnational Corporations and Human Rights Liabilities: linking standards of public international law to Dutch civil litigation procedures.” In 2009, she was Research Associate of the Centre for Commercial Law Studies at Queen Mary, University of London. Her interests are in the areas of international economic law, including investment law; corporate social responsibility; self-regulation; and commercial litigation. Dr. Nicola Jägers is Associate Professor at the department of European and International Law, Tilburg University in the Netherlands. She holds a master’s degree both in history and law and obtained her PhD at the Netherlands Institute of Human Rights (SIM) in 2002. The dissertation was published as a book entitled Corporate Human Rights Obligations: in search of accountability (Intersentia, 2002). She has published numerous articles and book contributions notably on the issue of corporate responsibility and the position of other non-state actors such as NGOs in international (human rights) law. Currently she is Executive Editor of the Netherlands Quarterly of Human Rights, and a member of the board of the Centre of Research on Multinational Corporations. She is also on the board of the Dutch School of Human Rights Research and the Dutch branch of the International Law Association. Professor Dr. Bert-Jaap Koops is Professor of Regulation & Technology at the Tilburg Institute for Law, Technology, and Society (TILT), and Senior Research Fellow at the International Victimology Institute Tilburg (INTERVICT). From 2005-2010, he was a member of De Jonge Akademie, a young-researcher branch of the Royal Netherlands Academy of Arts and Sciences. His main research interests are cybercrime, cyber investigation, DNA forensics, privacy, data protection, identity, digital constitutional rights, code as law, human enhancement, and regulation of bio- and nanotechnologies.

About the Authors

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Dr. Steve Kuchta is Researcher of Human Security/Environmental Justice at INTERVICT, Tilburg University, the Netherlands, and Doctoral Candidate of Economics at the University of Connecticut, USA. His main research interests are environmental justice and environmental rights, and their intersections with economic rights, environmental law, and access to remedies in environmental grievances. He also works on the economic implications of regulatory frameworks in pharmaceuticals and intellectual property rights. Dr. Rianne Letschert is Deputy Director of the International Victimology Institute Tilburg (INTERVICT) and Associate Professor of International Law and Victimology. She is appointed member of the Netherlands Helsinki Committee, and Editor of the journal Security and Human Rights. In 2010, she was Research Fellow at the Lauterpacht Centre for International Law of Cambridge University (UK). Her latest book publication was on victims of terrorism (with Staiger and Pemberton, Springer, 2009). Furthermore, she co-edited a volume on developing victimological approaches to international crimes (Intersentia, 2010). Dr. Nicole van der Meulen received both her bachelor of arts and her master of science degree in political science with a specific focus on international relations and comparative politics. After the completion of her degrees, Van der Meulen commenced her PhD dissertation research on financial identity theft in the United States and the Netherlands. Besides her dissertation research, Van der Meulen has also completed project research for the National Infrastructure Cyber Crime (NICC) and the Future of Identity in the Information Society (FIDIS), which is a Network of Excellence (NoE) supported by the European Union. Dr. Antony Pemberton is Senior Researcher and Research Coordinator at the International Victimology Institute (INTERVICT) of Tilburg University. Dr. Pemberton is a social scientist, whose main research interests include the psychology of victims in the criminal justice system, interdisciplinary research into victim-related justice processes and issues concerning victims of international crimes. Dr. Pemberton, in cooperation with Dr. Rianne Letschert, developed and was steering group coordinator of the Developing Assistance to Victims of Terrorism project which INTERVICT and partners undertook on behalf of the European Commission. The project resulted in the recent Springer publication Assisting Victims of Terrorism and his chapter draws heavily on the research conducted as a part of this project. Professor Dr. Corien Prins holds a degree in law as well as Slavic languages and literature from Leiden University, the Netherlands. Currently, she is Professor of Law and Informatization at Tilburg University with the Institute for Law, Technology, and Society (TILT). She combines this position with being a member of the Dutch Scientific Council for Government Policy (WRR) in The Hague. She headed the TILT research institute from 1996 until 2008. Prins is a member of the Royal Netherlands Academy of Arts and Sciences (KNAW) and Senior Research Fellow at INTERVICT.

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Dr. Conny Rijken is Associate Professor at Tilburg University and Senior Research Fellow at INTERVICT. Dr. Rijken is specialized in the fields of European Criminal Law and trafficking in human beings, and has published widely on these subjects. These include the book Trafficking in Persons, Prosecution from a European Perspective (Asser, 2003). Besides teaching both undergraduate and postgraduate courses, she has been intimately involved in research in the international arena. Some of her more notable recent assignments include the establishment of Joint Investigation Teams, raising awareness in the Judiciary on Trafficking in Human Beings, and the certification of the prostitution sector in the Netherlands. Currently she is conducting research for the European Commission on combating THB for labour exploitation. Professor Dr. Renée Römkens is Professor of Interpersonal Violence, notably violence in the private domain. She has a BA in law, an MA in criminology (Radboud University Nijmegen, 1980) and a PhD in psychology (with honors). Between 2000 and 2005 her academic career was based in the United States (Visiting Fellow at New York University Law School/Program of Global Law, Visiting Professor at Columbia University of New York – Institute for Research on Women and Gender). Her work focuses on socio-legal issues regarding victimization, gender, multiculturalism. Her theoretical work addresses the role of law, more specifically the role of the criminal legal system when addressing victimization in the private domain, and on the dilemmas and unintended consequences that are invoked when calling upon law to counteract violence against women and children. Professor Dr. Jonathan Verschuuren is Professor of International and European Environmental Law at Tilburg Law School. He currently serves as the Vice Dean. Verschuuren is also a faculty member of INTERVICT and the Tilburg Sustainability Center, and Honorary Professor at North-West University, South Africa. His research focuses on the interplay between international, regional, and national environmental law on such topical issues as climate change, biodiversity, and water management. Professor Dr. Jo-Anne Wemmers obtained her PhD from the University of Leiden (the Netherlands). Presently, she is a Professor at the School of Criminology of the Université de Montréal (Canada) as well as Head of the Research Group Victimology and Restorative Justice at the International Centre for Comparative Criminology. Professor Wemmers has published many articles and books in the area of victimology, including Introduction à la victimologie (Les Presses de l’Université de Montréal) and Victims in the Criminal Justice System (Kugler Publications). Former Secretary General of the World Society of Victimology, she is currently Editor of the International Review of Victimology as well the Journal international de victimologie.

Part I

Introductions and Overviews

Chapter 1

New Faces of Victimhood: Reflections on the Unjust Sides of Globalization Rianne Letschert and Jan van Dijk

1.1 Introduction In the UN Secretary-General’s report endorsing the findings of the High-level Panel on Threats, Challenges, and Change, six key security challenges are listed as the foremost challenges of the contemporary age. These are: economic and social threats, including poverty, infectious disease, and environmental degradation; interstate conflict; internal conflict, including civil war, genocide, and other large-scale atrocities; nuclear, radiological, chemical, and biological weapons; terrorism; and, last but not least, transnational organized crime. The panel concluded that now “threats are from non-State actors as well as States, and to human security as well as State security.”1 The newly coined umbrella concept of human security stresses the need of putting the interests of people rather than of states in the center of attention and it highlights the interrelationships between the threats to personal security such as by global crimes and other security risks such as those of extreme poverty or health. The individual human being is not only defined in terms of his or her vulnerabilities, but also as a person that should be empowered to fend for him or herself. A central feature of the debate on human security is the call for preventive or remedial action from the world community against all kinds of threats to the core of people’s lives (“responsibility to protect”).2 According to the victims’ movement, criminal justice systems across the world should serve the interests of those directly harmed by crime besides or even before R. Letschert (B) International Victimology Institute (INTERVICT), Tilburg University, 5000 LE Tilburg, The Netherlands e-mail: [email protected] 1 United

Nations (2004). A More Secure World: Our Shared Responsibility, Report of the Highlevel Panel on Threats, Challenges, and Change, p. 15, Available through http://www.un.org/ secureworld/report.pdf. 2 It goes beyond the scope of this chapter to synthesize the many discussions relating to this concept. For critiques on the usefulness of the concept in providing a basis for substantive change of the system of international security, we refer to a recent contribution by Ryerson Christie (2010).

3 R. Letschert, J. van Dijk (eds.), The New Faces of Victimhood, Studies in Global C Springer Science+Business Media B.V. 2011 Justice 8, DOI 10.1007/978-90-481-9020-1_1, 

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those of the state. From this perspective, key victim-centered functions of criminal justice are access to justice, information, recognition and reparation. Furthermore, victims are entitled to social support to be reinstored into their former life. Over the past 20 years the victims’ movement has had considerable impact on policy. On 15 November 2006, Queen Elizabeth of the United Kingdom, for example, announced in her annual speech to Parliament: “My government will put victims at the heart of the criminal justice system.”3 In the same year the Dutch Minister of Justice issued a white paper on the implementation of his victim policies called “Victims in the Center.” A landmark for the global reform movement was the United Nations Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power adopted by the UN General Assembly in 1985. In this document the rights and interests of victims of abuse of power were only marginally addressed. This omission was corrected by the subsequent Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law adopted in 2005 by the UN Commission on Human Rights. Together these two documents have set the global standard for the treatment of victims in national and emerging international criminal law. They could be seen as important operationalizations of the concept of human security in the domain of criminal justice. Improvements in procedural rights of crime victims are embedded in the legal traditions and structures of domestic criminal justice systems. Where domestic arrangements of criminal justice are replaced or supplemented by international criminal law, existing provisions for crime victims must be transferred to these new settings. In the meantime, globalization is changing the landscape of both crime and criminal justice. Crime is rapidly being internationalized. The increasingly international nature of many forms of crime poses a major challenge to domestically oriented systems of criminal justice. Inadequate arrangements for judicial cooperation allow perpetrators of global crimes to escape prosecution. The failure to bring transnational perpetrators of crime to justice leaves victims of such crimes without legal recourse. If such crimes are brought before a court, rights of victims are logistically difficult to enforce. On the positive side, international criminal law is expanding and provisions for victims are no longer overlooked. The United Nations, for example, has instituted international funds for victims of torture and is currently discussing the creation of a fund for victims of terrorism, and the International Criminal Court has set up a Trust Fund for victims of international crimes. Numerous international NGOs struggle to offer relief and support for a broad range of crime victims such as those of human trafficking or victims of international crimes. In this book we will bring into focus these and other, often contradictory, implications of globalization for the protection and support provided to victims of crime across the world. The leading theme is the relationship between processes of globalization, emerging

3 Cited in: Hall, M. (2009). Victims of Crime; Policy and Practice in Criminal Justice, Cullompton,

Willan Publishing.

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threats to human security and the development of new national and international arrangements to protect and empower actual victims.

1.2 Defining Globalization Globalization is a complex phenomenon that takes many different forms. It is far from a recent phenomenon and is therefore difficult to pinpoint in time.4 Academic analyses and social movements against globalization started in the last decade of the twentieth century. For the purpose of this book it is defined as the growing interconnectedness of communities across the world resulting in interdependencies between actors operating at long distances from each other in multiple spheres of life.5 Globalization has in recent decades had two main material drivers. New techniques of communication from computing to satellites have made information available across the globe almost instantaneously, with cyberspace as its most dramatic manifestation. Parallel to this, new forms of mass transportation such as high speed trains and budget airlines have facilitated cross-border mobility of people. These factors have reinforced each other. Together they acted as catalysts of political transformations such as the fragmentation of the global communist bloc and the emergence of a multi-polar world order. Within Europe, opportunities for legal or illegal cross-border travel between the East and the West have expanded. Within the European Union border controls have practically been abolished for residents of the Member States. These processes have created new opportunities for entrepreneurial criminals who can now with slightly adjusted modus operandi prey upon potential victims outside their home states. Organized crime groups can more easily than ever branch out to new hunting grounds: “The World is yours, select your country, Tony,” says a lead character in a TV series about the life of a mafia group in New Jersey.6 Since criminal justice systems are still largely organized within the framework of the territorially restricted nation state, internationally operating criminals can often victimize world citizens with near impunity. Globalization is not just a matter of improved means of communication and the lifting of borders. It has gone hand in hand with neo-liberal ideologies propagating

4 Beitz, C.R. (2005). Cosmopolitanism and Global Justice, The Journal of Ethics, 9, 11–27, notes as follows: ‘First, one should not think of globalization as a development peculiar to the latetwentieth century. However it is measured – whether by the volume of trade, capital flows and labor migration, by the integration of goods and capital markets, or by the sensitivity of domestic life to economic transactions elsewhere – economic globalization dates at least from the nineteenth century.’ See further O’Rourke, K.H. & Williamson, J.G. (1999). Globalization and History: The Evolution Of A Nineteenth-Century Atlantic Economy, Cambridge, MIT Press. 5 See also: Aas, K.F. (2007). Globalization and Crime, London, SAGE. 6 Cited in Siegel, D. & Nelen, H. (2008) (eds.). Organized Crime: Culture, Markets and Policies, New York, NY, Springer.

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the elimination of obstacles to trade and to international financial transactions.7 Economically, decisions about the production, consumption and trade in goods and services are largely in the hands of multinational companies whose main concern is often profit rather than the impact of the globalized economy on specific localities and populations. Globalization has generally increased inequalities both across countries or regions and between social strata within them. In several places women seem to have been especially heavily affected by globalization (“feminization of poverty”). One of the starkest manifestations of globalization’s unjust sides is the large-scale migration of women and children from countries negatively affected by globalization to countries with booming economies. Lured by the prospect of a better life, such migrants often fall victim to practices of criminal exploitation in the liberalized sex or textile industries in the developed world. By the criminal justice systems in developed countries this category of victims is often not recognized as such but dealt with harshly by migration authorities or the police. These twice victimized persons belong to the core of a growing migratory underclass in the metropoles of the Western world. Globalization has not only changed the dynamics of economic, including criminal-economic life but has also fundamentally changed the role of state institutions. Globalization is said to have led to a “withering of the state.”8 In reference to the need of retaining competitiveness on global markets, governments have reduced labor costs by stripping welfare-type provisions.9 In many countries governments have also relegated core state functions to supposedly more efficient actors in the private sector. Examples of such transfers from the public to the private sphere are forms of policing such as surveillance and ancillary services related to military operations. At the same time national states have relegated mandates to supranational structures such as the European Union and to international organizations such as those belonging to the UN system (World Bank, IMF and the various branches of the UN). The emergence of these global or regional arrangements is accompanied by the explosive growth of powerful international NGOs such as, for example, Amnesty International, International Crisis Group, Greenpeace, Human Rights Watch and Transparency International. The Westphalia nation state, then, is beleaguered from all sides. It has been incrementally eroded both from within (down-sizing and privatization) and from outside (internationalization of governance). Paradoxically the hypothesis of the “withering state” is not directly applicable to the domain of criminal justice. Globalization has generated its own countervailing forces in the cultural and political spheres. Culturally, globalization is diagnosed as generating a society preoccupied with 7 Passas,

N. (2000), ‘Global Anomie, Dysnomie, and Economic Crime: Hidden Consequences of Neo-liberalism and Globalization in Russia and the World’, Social Justice, 27, 2, 16–43. 8 Bauman, Z. (1998). Globalization: The Human Consequences, Cambridge, Polity Press. For critique on the ‘withering of the state’ thesis, see in Aas, K.F. (2007). Globalization and Crime, Sage Publications, p. 143 ff. 9 Hertz, N. (2001). The Silent Takeover: Global Capitalism and the Death of Democracy, London, Arrow Books.

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fear of “the other” and of risks from real or perceived global threats.10 In this vision, the conventional European ideal of gradually absorbing vulnerable classes into the mainstream is replaced by notions of protection against external threats.11 In response to growing globalization and ensuing perceptions of risks, communities have started to be nostalgic about localized cultural roots and suspicious of immigrant communities and other aliens. It is in this sense that the historical nineteenth century notion of “dangerous classes” seems to be re-emerging.12 Fuelled by prevailing public concerns about security threats from perceived outsiders, many governments have extended their mandates and budgets for criminal justice. In an era of withering state functions, expensive prison administrations have, paradoxically, been booming, resulting in what has been called hyperincarceration. Legal and illegal immigrants make up a growing proportion of these populations.13 Although tougher criminal policies are often presented as ways to protect vulnerable victims, it is far from certain that the interests of victims are actually served by the current “rush to repression.” Processes of globalization impact on the situation of victims in conflicting ways.14 On the one hand, globalization makes people vulnerable to new forms of crime and creates new victims. At the same time, globalization challenges existing arrangements for victim participation and victim support. Without new initiatives to assist victims of global crimes, their needs will largely remain unmet. Fear-induced investments in criminal justice responses to international threats such as terrorism are unlikely to be victim-centered. Examples of victims in need of better protection are victims of human trafficking for sexual and labor exploitation and of other forms of transnational organized crime.15 Other categories are victims of crimes on the Internet, of cross-border environmental crimes committed by international companies or international crimes such as crimes against humanity. This book documents the magnitude of this “unjust side of globalization.” It discusses how globalization victimizes ordinary people and how recent improvements in the protection of victims of crime are compromized by the same processes. On the positive side globalization may create a new sensitivity to victimhood in far away corners. Mass audiences are increasingly sensitized to the plight of victims in foreign settings through documentaries and news items on television or videos posted on YouTube. The increasing use of the internet may open new avenues for expressing solidarity across borders and involving victims in criminal justice. We 10 Beck,

U. (2002). Risk Society: Towards a New Modernity, London, Sage. J. (1999). The Exclusive Society, London, Sage. 12 Swaan, A. de (1989). In Care of the State; Health Care, Education and Welfare in Europe and the USA in the Modern Era, Oxford, Oxford University Press. 13 Pratt, J., Brown, D., Brwon, M., Hallsworth, S., & Morisson, W. (eds.), (2005). The New Punitiveness: Trends, Theories, Perspectives, Cullompton, Willan Publishers. 14 For the purpose of this book, victims are defined as those who have been harmed by acts defined as criminal violations of national or international law. 15 Gooday, J. (2008). Human Trafficking; Sketchy Data and Policy Responses, Criminology and Criminal Justice, 8, 4, 421–2. 11 Young,

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will explore the risks of globalization but we will also explore how emerging opportunities can be exploited to prevent victimization and empower those affected by crime.

1.3 International Criminal Law, Human Security and Global Justice Undeniably, criminal law, both globally and regionally, is finally breaking out of its traditional, domestic mold. On the global scene, a body of international criminal law is emerging such as the UN conventions against transnational organized crime, including human trafficking, smuggling of migrants and the illegal trade in firearms, as well as against corruption. Over the past 20 years several global treaties against terrorism have been enacted. Some progress has also been made with the development of international collaboration in criminal justice on the ground, at least at the regional level. The European Union has set up several institutions in this area including Europol and Eurojust. It has also initiated the mechanism of the European arrest warrant. The Council of Europe Convention on Cybercrime may fall short of facilitating cross-border searches but at least provides for 24/7 liaison offices for immediate mutual legal assistance. Since 2000 the fight against global crime has been overshadowed by the “war on terrorism.” The attacks of 9/11 as well as those in Bali, London and Madrid have spurned governments to make the prevention of terrorist attacks their first security priority and to exchange intelligence on terrorist threats on an unprecedented scale. Initiatives in the war on terrorism can be seen as evidence that the world community has belatedly risen to the challenge of global crime. Others are more skeptical. An unintended side-effect of the war on terrorism with its heavy reliance on intelligence and diplomacy could have been that interest in judicial cooperation has been waning. Findlay in his book – Governing through Globalised Crime – expresses concern that the fight against terrorism and its links with organized crime results in an unprecedented expansion of the powers of the state at the expense of civil liberties.16 In our view emerging international laws and infrastructures to fight global crime should be placed in the wider context of the human security concept and be fundamentally victim-focused. Such orientation towards human rather than state security cannot be taken for granted. If adopted, it would act as a useful counterpoint to tendencies to instrumentalize the fight against global crime for political purposes. Besides human security another guiding concept of the book is global justice, loosely defined as the total of initiatives seeking to ensure that all human persons regardless of their location are offered an adequate level of protection under the

16 Findlay

(2008).

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law.17 The criminal law conventions of the United Nations against transnational crimes, just mentioned, are potentially an important vehicle for the promotion of global justice. A historical landmark in the promotion of global justice in the framework of human security is the establishment of the International Criminal Court in The Hague. The growing attention for international humanitarian law and specifically for the procedural role of victims therein, has led to the inclusion of an elaborate set of procedural victim rights in the Court’s Statute and rules of procedure. Victims have been given the right to participate in the proceedings, in accordance with the UN Victims Declaration of 1985 and the 2005 Guidelines mentioned before. This set of rights stands in stark contrast to the exclusion of the victim in the Nuremberg en Tokyo trials.18 It can be understood as the fruit of growing awareness of the responsibility of the world community not just for the protection of people against state violence regardless of national borders but also for the redress of actual victims. Whether the new generation of criminal trials against perpetrators of international crimes will actually be more victim-centered than in the past and can serve as a model for global justice remains to be seen but the law in the books gives ground for cautious optimism. A major development in the encouragement of global justice concerns the increasing influence of civil society actors on international lawmaking and lobbying for victim-centred justice. To illustrate the increased weight of international or national non-state actors in the formation of international law, and how civil society has become an actively involved observer, we refer to the important role of NGOs (especially the women’s coalition) in shaping key provisions in the Statute of the International Criminal Court and in achieving early ratification of the Statute. Another example of how institutions together with civil society are increasingly involved in international lawmaking are the “Guidelines in Matters involving Child Victims and Witnesses of Crime” adopted in 2005 by the UN Economic and Social Council. The International NGO, International Bureau for Children’s Rights, played a pivotal role in developing these guidelines, and lobbying for their adoption.19 Within Europe, a network of victim support organizations focusing on victims of terrorism was created and has become an important lobby group for EU activities in this eld. Also, Victim Support Europe gains influence over the European Union crime victims’ agenda. And the World Society of Victimology lobbies in UN circles for the advancement of a UN Convention on victims’ rights. As Boyle and Chinkin rightly point out, “epistemic communities comprising those with scientific, technical or other expertise come together in treaty-making alongside government representatives and members of international bureaucracies.”20 17 For thorough discussions on the concept of global justice, see Brooks, T. (ed.) (2008). The Global

Justice Reader, Oxford, Blackwell Publishing. is also an improvement compared to the limited victims’ rights provisions in the Tribunals for the Former Yugoslavia and Rwanda, see further Chapter 12. 19 See http://ibcr.org/eng/. 20 Boyle, A. & Chinkin, C. (2007). The Making of International Law, Oxford, Oxford Press, and Van Genugten, W.J.M., Van Gestel, R., Groenhuijsen, M.S., & Letschert, R.M. (2007). Loopholes, 18 It

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Globalization goes together with a mindset of cosmopolitanism embracing both its economic opportunities and matching moral responsibilities. While globalization has its undeniable downsides in the form of global crimes, it also generates the need for global justice. To be effective and sustainable, the desired global justice should, however, not be or perceived to be an instrument of self-elected governments seeking political dominion. It should incontestably serve the interests of bona fide communities of victims.21 What is needed is not just global justice as a technical achievement but global justice with victim-based legitimacy.

1.4 Outline The book’s overarching theme of the conflicting impact of globalization will first be approached in Chapter 2 by giving a general overview of existing international legal instruments on victims’ rights and complexities in the implementation process. The conclusion is drawn that no national government alone can hope to tackle the shadow sides of globalization. It makes a plea for more coordinated multi-level governance to advance the interests of victims of global threats. Chapter 3 continues by analyzing the emergence of different manifestations of ethical cosmopolitanism. The concept of human security is presented as a programme for elaborating cosmopolitan values that is waiting to be shared and realized in concrete policies in the public and private domains. In the view of the author, the development of a Human Security Index would be an important step forward towards the translation of the concept in a programme of action. We will return to this idea in the concluding chapter of the book. Part II of the book addresses victims of transnational crimes, such as organized crime and corruption, trafficking in human beings and environmental crimes. Victims of human trafficking for the purpose of (sexual) exploitation have in recent years received comparably more attention from the media and policymakers. As Rijken & Römkens demonstrate in Chapter 4, this concern has resulted in stepped-up efforts at enforcement and prosecution in a limited number of developed countries. Nevertheless, within this framework the interests of the victims are not sufficiently catered for. In many countries victims are treated as co-perpetrators of crimes against morality and undesirable aliens rather than as victims. Even within

Risks and Ambivalences in International Lawmaking; The Case of a Framework Convention on Victims’ Rights, Netherlands Yearbook of International Law, vol. XXXVII, pp. 109–154. 21 Findlay, M. (2008). Governing Through Globalized Crime, Futures for International Criminal Justice, Cullompton, Devon, Willan Publishing, p. 238: “International Criminal Justice will have a crucial role to play in the decades to come, formulating and materializing victim communities as a force in justice regulation. The formal institutions of ICJ will come to prosecute on behalf of and in protection of humanity. As such, victim constituencies will exceed the authorising agencies of the ICC as essential legitimators, beyond the victors who give perspective to the war crimes tribunals [. . .]”.

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the European Union, which has issued more victim-friendly instruments on the issue, a victim-centered or rights-based approach to human trafficking is still far from a reality. Mainly for this reason victims are reluctant to take part in criminal investigations and trials. In fact, as discussed in the chapter, their lack of cooperation is perceived to be the single most important impediment of successful prosecutions. In the imagery of the media on mafia-type operations the use of extreme violence to individuals stands in the foreground. The author of Chapter 5 elaborates on the less visible, nefarious impact of organized crime on communities and, in fact, populations of countries governed by criminal elites. The chapter discusses how organized crime groups and multi-national companies engaging in illicit activities can avoid prosecution for their crimes by choosing locations where state institutions are malfunctioning. State institutions in some developing countries have been captured by Criminal Political Networks. In such countries the state will rarely initiate criminal proceedings against its own public officials and politicians in cahoots with organized crime and/or condoning the criminal behavior of multinational companies. Members of the OECD have agreed to address these anomalies by initiating criminal proceedings against companies paying bribes to officials in developing countries. In reality very few investigations into bribery of foreign officials by multinational corporations have been carried out by any of the developed countries.22 Since no national interests are at stake and affected victim communities live in far away countries, the investigation of such cases is not given high priority.23 Besides analyzing the vulnerability of the indirect victims of transnational organized crime, the author explores the wider implications of the lack of strong victim focus for the legitimacy of the fight against global crime. Another implication of globalization is the exportation of poisonous materials to least protected territories and the need for arrangements for liability for environmental damage across borders. The recent attention for the responsibility of international companies and national authorities for environmental damage caused in Ivory Coast in Africa by cargo departing from the Amsterdam port illustrates the emerging of new types of victims in the international legal arena and their problems in getting access to justice. Chapter 6 examines which transnational legal responses could potentially relieve the needs of victims of transnational environmental damage 22 See Transparency International Annual Report, 2007, http://www.transparency.org/. Of the major exporting countries Canada, Japan and the UK are singled out as countries with no or very few prosecutions. See also TI report: Emerging economic giants show high levels of corporate bribery overseas; construction, real estate, oil and gas sectors most prone to corruption, London/Berlin, 08 December, 2008. 23 Local communities in oil-rich Angola, for example, are among the poorest in the world and corruption by state officials has been called the country’s only functioning institution. Yet not a single case of grand corruption has ever been brought before a court in Angola since independence. To our knowledge no cases have ever been tried against foreign international companies criminally operating in Angola either. The Angolese victim communities are without any legal recourse against a government looting a potentially affluent country in cahoots with international corporations.

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effectively and how the best possible response could be put in place. In the case of transnational environmental pollution, as illustrated by the Trafigura case, multilevel governance greatly complicates enforcement as well as effective access to justice for victims. International tort law can potentially play a role but victims will in any case require highly specialized legal aid to stand any chance of successfully suing their offenders in civil courts.24 Part III deals with the specific theme of victimization and victim protection in cyberspace, for which one of the authors coined the term e-victimology. Still largely un-charted territories indeed are the victimological dimensions of cyberspace, perhaps the most radical manifestation of globalization. The weak roles of traditional nation states as well as of budding international structures in cyberspace may explain the conspicuous absence of an academic or political discourse on victim protection in this domain. Victims of cybercrimes are largely left to their own devices. Chapter 7 starts with elaborating what comprehensive programme of preventative and restorative actions is required to help and empower victims of identity theft, particularly in the context of the Internet. Chapter 8 focuses on victims of cyberstalking and the difficulties in investigating and prosecuting this type of crime across borders. The authors of Chapters 7 and 8 present several examples of the powerlessness of victim-complainants of global crime. In the case of transnational cyberstalking uncertainties over jurisdiction will all too often result into non-action by all potential actors. If action is taken, international legal aid and extradition are complicated by lack of harmonized legislation. To tackle transnational identity theft, a plea is made for a multi-level governance approach that is to be coordinated at the global level by the United Nations but implemented in local settings by public and private actors. Unfortunately such an approach is unlikely to be of much use to victims seeking redress. Rights of victims have not been adequately addressed in the otherwise innovative Convention on Cybercrime of the Council of Europe. In the view of Van der Meulen & Koops, national programs to assist victims economically and emotionally seem the best victims can realistically hope for at this juncture. Chapter 9 takes a slightly different perspective in the sense that it does not focus on cybercrimes as such, but examines how digital tools offer unprecedented

24 An

important argument against the creating of procedural rights for victims in criminal procedure has always been that private citizens have the option to sue their offenders for damages in a civil court. Empirical studies have falsified the notion that crime victims can effectively obtain compensation from the offenders through civil proceedings. The access to courts in such cases is largely theoretical. Victims stand much better chances to receive (partial) compensation in the context of a criminal trial. The option of seeking justice through litigation at civil law courts seems even more problematic for victims of global crimes, Groenhuijsen, M.S. & Van Dijk, J. (1993). ‘Schadevergoedingsmaatregel en Voeging: De civielrechtelijke invalshoek’, Nederlands Juristenblad, 68, 5, pp. 163–167.

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opportunities to empower victims in responsible and efficient ways. The chapter addresses the challenges that victim support interests face in the new digital arena. This relates not only to victims of cybercrimes but victims of crimes in general. Victims of conflicts, wars and terrorism are central to Part IV. Part IV begins with an analysis of victims of international terrorism, notably the attacks by Al Qaeda. The analysis focuses not so much on the impact on direct and secondary victims, however dramatic, but on the intended impact of provoking vicarious victims into contentious, retaliatory action, thereby confirming the terrorists’ political agenda (Chapter 10). In this way the chapter provides a striking example of the interrelations between victimization and further onslaughts on human security. The increasing and far-reaching involvement of international organizations and national governments in interventions in human security crises across the world, results in an increasing involvement of private actors. Chapter 11 assesses the accountability gap that has surfaced since the tremendous growth of Private Military and Security Companies. It applies a double victim perspective, relating to employees of such companies falling victim to war activities and to people that become victims of their activities. The article gives an analysis of the far-reaching consequences of privatizing military operations. The outsourcing of military tasks to private companies is an example of the fragmentation of the nation state and can as such be seen as a result of globalization. In a majority of cases military companies are contracted not by states but by other private companies. Although victimizing acts by private military companies mostly take place in the arena of declared wars, existing regulations governing accountability, liability and redress are not applicable. According to Van Genugten, Van der Heiden & Jägers, international humanitarian and human rights law have to be interpreted in a maximalist way to be applicable. For concrete victims access to justice under international law remains a theoretical option at this juncture. In some cases regulations of individual countries including the USA governing jurisdiction of criminal offenses at facilities overseas may offer a possibility of redress. The USA has also passed legislation that opens possibilities to sue perpetrators before a civil court in the USA. However, the authors’ in-depth analysis is far from encouraging for victims. As in the case of environmental pollution across borders, individual or collective victims stand no reasonable chance to succeed in obtaining compensation without the support of specialized legal aid. As raised earlier, the establishment of the International Criminal Court has raised expectations for the development of global justice as cornerstone of human security. Chapter 12 will discuss the rights of victims before the International Criminal Court procedures and reveal the challenges in implementing these rights in the first cases. The ICC promises to become the shining model for domestic justice systems and for global justice generally. The Rome Statute has incorporated the basic principles of justice for victims as elaborated in the two UN Guidelines of 1985 and 2005

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to a much larger extent than the UN Conventions against Transnational Organized Crime and Corruption.25 The book ends with a concluding chapter synthesizing the various contributions. It underlines that emerging arrangements for global justice should be truly victimcentered and it makes practical recommendations on possible next steps in this global endeavor (Part V, Chapter 13).

25 Van

Dijk, J.J.M. & Wemmers, J. (2010). ‘International Victimology; Services and Rights for Victims of Domestic and International Crimes’, in: Mangai, & Natarajan (eds.), Introduction to International Criminal Justice, Boston, McGraw Hill.

Chapter 2

Global Governance and Global Crime – Do Victims Fall in Between? Rianne Letschert and Marc Groenhuijsen

2.1 Introduction Over the last decades, several states have made significant progress in raising awareness of victims’ rights, setting out the (quasi-)legal framework and establishing institutions and formal and informal mechanisms for providing protection, redress and justice.1 Victims’ rights legislation – be it through provisions in criminal codes or complete victims’ rights charters – and policies have been developed, although mostly in the more affluent countries of the world. Also at the global level, important achievements were made. What started with the United Nations Declaration on the Basic Principles of Rights of Victims of Crime and Abuse of Power in 1985 was followed by several instruments from both international and regional organizations. Whereas several of the international and regional instruments focus on what is often referred to as conventional crime, other instruments were influenced by the effects of globalization both on crime and its victims. As indicated in the introductory chapter to this volume, globalization processes, besides impacting on the economic, political and cultural spheres, have also had profound implications for the world of crime and justice. The globalization of various forms of crime poses serious challenges to the conventional systems of criminal justice. More than any other state institution besides the armed forces, criminal justice systems can be seen as quintessential expressions of the sovereign state, claiming exclusive jurisdiction over offences committed within its national borders. But in the context of globalization, both law enforcement organizations, prosecutorial agencies and the courts are trying to find ways to deal with emerging forms of transnational and international crimes. To bring to justice those committing crimes in other jurisdictions than their country of residence, requires cumbersome and time-consuming

R. Letschert (B) International Victimology Institute (INTERVICT), Tilburg University, 5000 LE Tilburg, The Netherlands e-mail: [email protected] 1 For the purpose of this chapter, victims are defined as those who have been harmed by acts defined as criminal in national or international law.

15 R. Letschert, J. van Dijk (eds.), The New Faces of Victimhood, Studies in Global C Springer Science+Business Media B.V. 2011 Justice 8, DOI 10.1007/978-90-481-9020-1_2, 

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procedures of international legal assistance. On the other hand, the legal principle of universal jurisdiction and the emergence of such concepts as humanitarian intervention and “responsibility to protect” in the global arena, enable states or international organizations to deal with the scourge of crimes such as genocide, war crimes and crimes against humanity, regardless of territorial borders. Whereas domestic laws and procedures of criminal justice are replaced or supplemented by international or European criminal law, existing victim protection schemes have remained largely domestic in scope and coverage. They will need to be adjusted to these new settings or better implemented. Without new initiatives to assist victims of global crimes, their needs will largely remain unmet. In this chapter we will explore the magnitude of this challenge and how it could and should be met by the world community. Various forms of victimizations by complex crimes will be discussed in this book. They can roughly be divided in cross-border victimizations and collective victimizations. Cross-border victimization can impose difficulties in many ways; either the victim becomes victimized in another country than his country of residence, or the victim is victim of a crime committed in another jurisdiction than his own but the effects of the victimization take place in his country of residence (for example cybercrimes); a further complication is that such crimes are often committed by a network or group of (foreign) criminals residing in different countries. These characteristics each pose difficulties in making use of the existing victims’ rights provisions. Furthermore, there are the intricacies of collective victimization through international crimes such as genocide, war crimes, crimes against humanity or terrorism and organized crime. These crimes victimize whole communities or populations rather than individuals. The problems in providing victims’ rights to such collective victim groups do not only occur in countries where the crimes were committed, or before international courts like the International Criminal Court (hereafter ICC), but also in those countries that prosecute alleged perpetrators on the basis of the universal jurisdiction principle.2 The aim of this chapter is firstly to analyze implementation difficulties of victims’ rights focusing in particular on victims of international crimes and victims of cross-border victimization (Section 2.2). We will start by giving an overview of international and regional standards for the rights of victims and provide, where available, information on their implementation status. We will begin by presenting the main, generalist instruments, namely the 1985 UN Declaration, the recent initiative of drafting a UN Convention on Justice and Support for Victims of Crime and Abuse of Power (2005) and several instruments emanating from the European Union and the Council of Europe respectively. Next, we will discuss international

2 For a thorough analysis of this, See Ferstman, C. & Schurr, J. (2010), ‘Universal Justice? The Practice and Politics of Universal Jurisdiction Cases Relating to Crimes Committed in Africa’, in: Letschert, R.M., Haveman, R., Brouwer, de A.L.M., & Pemberton (eds.), A. Developing Victimological Approaches to International Crimes, Focus on Africa, Intersentia.

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legal instruments focusing on special categories of victims such as victims of international crimes, human trafficking and terrorism. This will be followed by an analysis of global or multi-level governance structures in this field and some first proposals will be made to adjust existing victim protection schemes to the changing demands of a globalized world (Section 2.3).3

2.2 Analysis of Victims’ Rights Instruments4 2.2.1 General Victims’ Rights Instruments 2.2.1.1 United Nations The 1985 United Nations Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the UN General Assembly, covers a broad range of issues. These vary from truly abstract principles of justice (“compassion and respect for dignity”), to very practical demands (such as training for law enforcement officials). Some items concern the criminal justice system in general (for example, promoting alternative dispute resolution), while others involve details of the sanction system (such as restitution as an available option for sanctioning). There are also quite a few parts touching upon concrete, tangible rights and issues. We briefly mention the main provisions: • Establishing mechanisms in order to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible (Para. 5). • Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected (Para. 6(b)). • Providing proper assistance to victims throughout the legal process (Para. 6(c)). • Taking measures to minimize inconvenience, protect their privacy and ensure their safety from intimidation and retaliation (Para. 6(d)). • Avoiding unnecessary delay in procedures (Para. 6(e)). • Providing State compensation to direct victims and family and dependants (Para. 12). • Receiving the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means (Para. 14).

3 More elaborate proposals relating to the specific themes of this book will be made in the respective chapters. 4 See Compilation of International Victims’ Rights Instruments for an overview and exact references of the instruments discussed in this part. Also for a discussion of the legal status of the various instruments. Groenhuijsen & Letschert (2008), Wolf Legal Publishers.

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• Training police, justice, health, social service and other personnel concerned to sensitize them to the needs of victims, and guidelines to ensure proper and prompt aid (Para. 16). • In providing services and assistance to victims, giving special attention to particularly vulnerable victims (Para. 17).5

2.2.1.2 Implementation Resolutions of the UN General Assembly are considered to be soft law. Although the UN Declaration is therefore not legally binding, there are many indications that it has positively influenced the interpretation of existing texts, and contributed to the creation of legally binding rules in many countries. Declarations generally do not make any reference to a monitoring mechanism, as is also the case with the Victims’ Rights Declaration. Nevertheless, the UN itself initiated several monitoring projects in the years following the adoption of the Declaration.6 Several studies were carried out in the last 25 years that demonstrate that considerable progress has been made.7 In that sense, the Declaration could rightly be regarded as a catalyst of change and an important source of inspiration for domestic legislators across the world. Many victimology experts felt that the Declaration, 25 years after its adoption, needed to be updated to reflect advances in the theory and practice of victimology. It was also felt that implementation of the basic principles of justice for victims should be made the subject of a fully-fledged UN Convention, similar to the recently adopted UN conventions against organized crime and corruption. The World Society of Victimology (WSV), a worldwide lobby organization for the advancement of victims’ rights, and the International Victimology Institute of Tilburg University (INTERVICT) therefore decided to convene a meeting in December 2005 with 5 See for more detailed information on the UN Declaration, Van Genugten, W.J.M., Van Gestel, R., Groenhuijsen, M.S., & Letschert, R.M. (2007). ‘Loopholes, Risks and Ambivalences in International Lawmaking; The Case of a Framework Convention on Victims’ Rights’, Netherlands Yearbook of International Law, vol. XXXVII, pp. 109–154., Available also through http://ssrn.com/abstract=999315. 6 More details are provided by Groenhuijsen, M. (1999). ‘Victims’ Rights in the Criminal Justice System: A Call for More Comprehensive Implementation Theory’, in: Van Dijk, Van Kaam, & Wemmers (eds.), Caring for Crime Victims: Selected Proceedings of the Ninth International Symposium on Victimology, New York, NY, Criminal Justice Press, pp. 85–114, Groenhuijsen, M.S. (2005). ‘International Protocols on Victims’ Rights and some Reflections on Significant Recent Developments in Victimology’, in: Snyman, R. & Davis, L. (eds.), Victimology in South Africa, Pretoria, Van Schaik Publishers, pp. 333–351, or Van Genugten et al. (2007). 7 For an overview, see Schneider, H.J. (2000). ‘Victimological Developments in the World during the Last Three Decades: A Study of Comparative Victimology’, in: Gaudreault, A., & Waller, I. (eds.), Beyond Boundaries. Research and Action for the Third Millennium, Montreal, Association québécoise Plaidoyer-Victimes, pp. 19–68; and Brienen, M., Groenhuijsen, M.S., & Hoegen, E. (2000). ‘Evaluation and Meta-Evaluation of the Effectiveness of Victim-Oriented Legal Reform in Europe’, Criminologie, 33, 1, pp. 121–144.

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experts from different world regions to discuss the need and possible contents of a draft convention on victims’ rights. The meeting concluded that such document was indeed desirable and elaborated a first draft of a UN Convention on Justice and Support for Victims of Crime and Abuse of Power. Following that meeting, in August 2006, the draft was discussed at the 12th International Symposium on Victimology organized by the World Society of Victimology in Orlando, USA, leading to some revisions.8 Since then, the WSV has been lobbying Member States of the UN to propose a formal consideration of the draft text by the UN Commission on Crime Prevention and Criminal Justice (Crime Commission for short).9 The Draft reflects state-of-the-art notions of the desired position of victims in criminal justice settings and about victim support. Furthermore, it takes into account the most recent developments in standard-setting on victims’ rights by other international and regional organizations. And, finally, and perhaps most importantly, the Draft includes an extensive section on a strong mechanism for monitoring implementation. The draft convention provides for the establishment of a Committee on Justice and Support of Victims of Crime and Abuse of Power which would review the progress made by States Parties in achieving their obligations under the convention. According to the draft convention, this committee would not rely exclusively on the information provided by States Parties but could invite the Secretary General of the United Nations to gather information and provide expert advice on matters of implementation. With the adoption of this provision, Member States would opt for a monitoring and review mechanism that is on a par with those of other international criminal law and human rights conventions (e.g. the OECD Convention on Bribery) and go beyond those from the UN conventions against organized crime and corruption. Although the objective of a better deal for crime victims is widely embraced across the world, it seems at this juncture doubtful that any UN Member State will take the lead in initiating a formal discussion that could lead to the opening of negotiations on the proposed convention. Besides the usual difficulties on reaching consensus among Member States with diverging political, economic and cultural agendas on the need of elaborating a new convention on a particular topic, the current mood in the UN Crime Commission does not seem to be conducive to such initiative. As will be discussed in Chapter 5, there is insufficient political will to follow up vigorously the implementation of existing, newly adopted criminal law conventions and protocols. This disappointing reality may dissuade Member States sympathetic to the idea of a victims’ rights convention to form coalitions that could

8 The

first draft, including the revisions, can be found at http://www.tilburguniversity.nl/intervict/ undeclaration/convention.pdf. Further revisions have been discussed and agreed upon during a Symposium held at the Tokiwa International Victimology Institute on February 15 & 16, 2008. The proceedings of this Symposium have been published: Dussich, J. & Mundy, K. (eds.) (2009). Raising the Global Standards for Victims: The Proposed Convention on Justice for Victims of Crime and Abuse of Power, Mito, Seibundo Publishing Co., Ltd. 9 Representatives of the WSV attended the annual meetings of the UN Crime Commission in 2008 and 2009 to this end, and the UN Crime Congress in Brazil 2010.

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take the lead in elaborating new UN legislation in this domain. An argument why the UN Crime Commission would yet be well-advised to consider discussions on a possible convention, or on another major initiative to promote victims’ rights, is that it would serve to provide the somewhat lacklustre UN Crime Prevention and Criminal Justice Programme with a new, appealing people-oriented focus. Such focus could revitalize the programme by balancing the current somewhat controversial association of the programme with the USA-led wars on drugs and terrorism and broadening its international constituencies. A victim focus for the UN Crime Prevention Programme will not only assure that ordinary people will be among its primary beneficiaries. It will also, through the consultation of representatives of victim communities, introduce a countervailing force against political pressures to serve special state interests in the control of crime. As was already mentioned in the introductory chapter, a focus on victim interests can help legitimize the use of force immanent in international criminal law arrangements beyond state interests. Whether the adoption of the Draft Convention could also help to alleviate some of the complexities caused by collective or cross-border victimizations remains to be seen. The Draft contains some references to cross-border victimizations. One rather vague reference to cross-border victimization can be found in Article 7 (1.i.) which stipulates that states should facilitate information which also entails the following: “if they are resident in another State, any special arrangements available to them in order to protect their interests.” Also, Article 11 (7) provides that “in cases of cross border victimization, the State where the crime has occurred should pay compensation to the foreign national, subject to the principle of reciprocity.” In spite of these two provisions, the Draft as it stands, fails to clearly recognize the peculiarities and complexities that such victimizations bring about. The whole language of the Draft Convention seems inspired by the many achievements victimology has reached with regard to conventional crimes committed in a domestic setting. References to special assistance measures in case of collective victimizations are absent altogether, despite the fact that victims of abuse of power are prominently represented in the title of the convention. These omissions constitute a missed opportunity since the UN 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power also fell short in this respect. It included only four rather vaguely formulated articles relating to victims of abuse of power.10 2.2.1.3 The European Union and the Council of Europe Compared to most other regions in the world, Europe has made significant progress since the adoption of the 1985 UN Declaration by creating a comprehensive (quasi) legal framework offering protection to victims of crime. Both the European Union and the Council of Europe have drafted several binding and non-binding instruments

10 See Lamborn, L.L. (1987). ‘The United Nations Declaration on Victims’, Rutgers LJ, 19, 59–95;

See also Bassiouni, M. (2006). ‘International Recognition of Victims’ Rights’, Human Rights Law Review, 6, 203–279.

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in this field.11 Other regional organizations, such as the African Union or the Organization of American States,12 have made important achievements in the field of human rights, but have not adopted any specific victims’ rights instruments. It is for that reason that the following examples relating to provisions aiming to address cross-border victimization or collective victimization mainly stem from European instruments. The most important achievement within the EU concerning the protection of general victims’ rights is the adoption of the EU Council Framework Decision on the Standing of Victims in Criminal Proceedings (2001) and of the EU Directive on Compensation to Crime Victims (2004).13 The EU Directive on Compensation is legally binding for all Member States. The EU Framework Decision, although not a treaty in the formal sense of the word, is also a legally binding document. It imposes a formal obligation on the EU Member States to ensure that their domestic laws and practices approximate the new EU standards. In case of gaps or discrepancies, either new legislation should be introduced or existing legislation adapted, or policy measures should be taken in order to ensure compliance. In other words, the goals of the Framework Decision are binding, although the Member States are left some discretion as to the means they choose to warrant compliance.14 The adoption of the Framework Decision was initially legitimized by invoking a classical EU objective, namely the freedom of movement. The link to developing specific provisions for victims of crime was made by arguing that residents of any Member State of the EU who choose to temporarily or permanently reside in another Member State should receive the same level of protection as they would in their home country. The Framework Decision was thus clearly inspired by crossborder victimizations. In addition, it was argued that those actually victimized by 11 Note

Triffterer who stated that “Europe seems predisposed as a forerunner of the ‘globalization of criminal justice’.” Triffterer, O. (2000). ‘Legal and Political Implications of Domestic Ratification and Implementation Processes’, in: Claus Kreß & Flavia Lattanzi (eds.), The Rome Statute and Domestic Legal Orders, Nomos, Baden-Baden and Il Sirente, Ripa di Fagnano Alto, vol. 1, pp. 1–28 at pp. 25–27. 12 Note that the Inter-American Court of Human Rights does grant victims procedural rights, such as participation rights. 13 Other EU legislation also touches upon victims’ needs and rights, for instance a framework decision on combating terrorism, a framework decision on combating human trafficking, and a framework decision on combating sexual abuse and exploitation of children. 14 With the entry into force of the Treaty of Amsterdam, framework decisions under Title VI of the EU Treaty (Police and Judicial Cooperation in Criminal Matters) have replaced joint actions. More binding and more authoritative, they should serve to make action under the reorganized third pillar more effective. Framework decisions are used to approximate (align) the laws and regulations of the Member States. Proposals are made on the initiative of the Commission or a Member State and they have to be adopted unanimously by the European Council. They are binding on the Member States as to the result to be achieved but leave the choice of form and methods. Contrary to directives, framework decisions have no direct effect. With the entry into force of the Lisbon Treaty distinctions between the EU pillars have been abolished and existing framework decisions such as those on the position of crime victims will have to be transformed into regular directives.

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crime were likely to be in need of special protection (mainly because “foreign” victims – such as workers, students or tourists – have no knowledge of the judicial system of the country where they were victimized, and/or may not speak the language etc.).15 The main articles relating to cross-border victims are Articles 11 and 12. Article 11 places a general duty on Member States to ensure that authorities can take appropriate measures to mimimize difficulties, e.g. in the organization of proceedings, where the victim is resident in a different country from the state of the offense. Specific items where assistance should be provided are as follows: the possibility to make a statement immediately after the crime; the possibility to use video and telephone conferencing for hearing a victim; the possibility to report a crime before the authorities of the country of residence rather than the country of crime. Article 12 prescribes the duty for states to foster, develop and improve cooperation with foreign states in cases of cross-border victimization, whether in the form of networks directly linked to the judicial system or of links between victim support organizations. The Framework Decision thus acknowledges the importance of both governmental and non-governmental cooperation. In 2006, another European regional organization, the Council of Europe, issued a Recommendation on Assistance to Crime Victims (2006)8.16 The Recommendation contains a wide variety of victims’ rights which in some regards are more elaborative compared to other victims’ rights instruments. For instance, Article 3.1 relating to assistance urges states to “undertake that victims are assisted in all aspects of their rehabilitation, in the community, at home and in the workplace.” Another example is Article 5.1 which encourages states to “provide or promote dedicated services for the support of victims and to encourage the work of non governmental organizations in assisting victims.” Furthermore, Article 16.3 emphasizes the important role of NGOs in focusing public attention on the situation of victims. States are furthermore encouraged to set up centers for victims of specific crimes such as sexual and domestic violence (Article 5.3) but also for victims of crimes of mass victimization such as terrorism (Article 5.4). In addition, Article 12.3 notes that specialized training should be provided to all persons working with specific groups of victims, including victims of terrorism. That this recommendation contains more detailed provisions compared to the UN Declaration or the EU Framework Decision is also demonstrated by Article 5.5 which provides that states should consider setting up or supporting free national telephone help lines for victims and Article 10.9 which encourages the media to adopt self-regulation measures in order to protect victims’ privacy and personal data. Regarding coordination and cooperation, Article 14.2 states that each state should ensure, both nationally and locally, that all agencies which in one way or another have contact with victims, work together to ensure a coordinated response. 15 For more information on the background to the adoption of the Framework Decision, see Rock, P.

(2004). Constructing Victims’ Rights: The Home Office, New Labour and Victims, Oxford, Oxford University Press. 16 See further www.coe.int/victims for more information on the work of the CoE on victims of crime, and also for the other CoE victims’ rights instruments.

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In addition, it is mentioned that “additional procedures are elaborated to deal with large-scale victimisation situations, together with comprehensive implementation plans including the identification of lead agencies.” Article 15 addresses transnational crimes. It states that “States should co-operate in preparing an efficient and co-ordinated response for transnational crimes. They should ensure that a comprehensive response is available to victims and that services co-operate in providing assistance (15.1).” Section 15.2 provides that “in cases where the victim does not normally reside in the state where the crime occurred, that state and the state of residence should co-operate to provide protection to the victim and to assist the victim in reporting the crime as well as in the judicial process.” 2.2.1.4 Implementation17 The European Commission published a first evaluation report on the implementation of the EU Framework Decision on 16 February 2004 which examined transposal as of 25 March 2003. In 2009, the second report of the Commission was published.18 This latest report takes into account implementation of all Articles of the Framework Decision by 15 February 2008 in all twenty-seven Member States. The Commission found the implementation of this Framework Decision generally unsatisfactory. The national laws of many Member States sent to the Commission contain numerous omissions. Moreover, they largely reflect existing practice prior to adoption of the Framework Decision. According to the report, “the aim of harmonising legislation in this field has not been achieved owing to the wide disparity in national laws. Many provisions have been implemented by way of non-binding guidelines, charters and recommendations. The Commission cannot assess whether these are adhered to in practice.” This means that already two implementation reports concluded that implementation was unsatisfactory.19 Although the Commission also acknowledged that more reliable data is needed to make a full assessment of Member States’ implementation.

17 The

implementation of the CoE recommendation has not yet been evaluated and will therefore not be further analysed here. 18 Brussels, 20 April 2009, COM(2009) 166 final, Report From The Commission, Pursuant to Article 18 of the Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/JHA) [SEC(2009) 476]. 19 ‘Implementation of international norms refers to incorporating them in domestic law through legislation, judicial decision, executive degree, or other processes’, while ‘compliance includes implementation, but is broader, concerned with factual matching of state behaviour and international norms’. See Shelton, D. (2000). ‘Introduction, Law, Non-Law and the Problem of “Soft Law”’, in: D. Shelton (ed.), Commitment and Compliance, The Role of Non-Binding Norms in the International Legal System, Oxford, Oxford University Press, 2000, pp. 1–18, 5. Interestingly enough, in literature and case law in the field of European law normally no distinction is made between implementation and compliance. Here, implementation is usually the overarching term for both the obligation to transpose European laws (especially directives and framework decisions) into national legislation and the obligation to ensure that compliance is guaranteed on the national level. See Prechal, S. (2006) Directives in EC Law, Oxford, Oxford University Press.

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Therefore, in 2007, the European Commission asked Victims Support Europe,20 represented by the Portuguese Victim Support organization APAV in cooperation with INTERVICT, to conduct a study aiming to provide the European Commission and other interested parties with a fuller and more comparative picture of the effects of the Framework Decision on the twenty-seven Member States and on the practical support to victims of crime. The goal of the project Victims in Europe was to see to what extent the Member States have complied with the Decision, not only through implementation in legislation, but also in practice. Out of this survey came that cross-border victims generally have access to translators across the EU. However, in many cases, this is not a right specific to victims of cross-border crimes but stems from general criminal procedure. The same can be said about the right of victims to make a statement immediately after the commission of the crime, which exists in approximately half of the Member States.21 Furthermore, from both the Commission’s and Victims Support Europe’s evaluations, it follows that the right to information is not properly implemented. Access to information is one of the most fundamental victims’ rights since non-compliance with it often entails that the victim does not become acquainted with any of his other rights. Considering that this right is not adequately implemented for conventional crime victims, it is to be feared that the situation will even be far worse for cross-border victims. In addition, the majority of the EU Member States do not offer victims the opportunity to report crimes committed abroad once they return home. Most of the countries offer victims this opportunity only in cases in which they themselves have jurisdiction. As this provision in Article 11 lies at the heart of the framework decision, improvements are urgently called for.22 2.2.1.5 Changes After the Adoption of the Lisbon Treaty With the adoption of the Treaty on the Functioning of the European Union (Lisbon Treaty), framework decisions will have to be updated and transformed into directives. This transformation is likely to enhance the legal status of the EU standards for victims’ rights. The Treaty of Lisbon sets out, in relation to the rights of victims of crime, that minimum standards can be established to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters (Article 82.2). In the provision of sub 2 itself, some important limitations to EU competence are included. First of all, the substantive limitations stating that the legal measures shall only concern the following aspects: mutual admissibility of evidence between Member States, the rights of individuals 20 Victims

Support Europe is an umbrella organization of national victim support organizations, see http://www.victimsupporteurope.eu 21 APAV-INTERVICT Report (2010), Implementation of the EU Framework Decision on the standing of victims in the criminal proceedings in the Member States of the European Union, Project on behalf of Victims Support Europe, p. 149. Available at http://www.apav.pt/portal_eng and http://www.tilburguniversity.nl/intervict. 22 APAV-INTERVICT report, p. 156.

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in criminal procedure, the rights of victims of crime. The Council can extend this list to other aspects of criminal procedure by taking such a decision unanimously and after the consent of the Parliament. Furthermore, the provision includes some procedural limitations. First of all, the provision must be necessary to facilitate mutual recognition and police and criminal law cooperation. Second, it must have a crossborder dimension. Third, the differences between the legal traditions and systems of the Member States must be taken into account. And fourth, only minimum rules can be adopted. Especially the addition of the cross-border dimension looks, at first sight, to seriously limit the thematic scope of competences of the EU, also with regard to improving victims’ rights. However, with regard to the cross-border dimension, we agree with Peers who states “that the European Union’s specific criminal procedural powers would be rendered meaningless if they could only be applied in cross-border proceedings.”23 Moreover, in the past years, under the previous EU regime – the three pillar structure-, the scope of approximation of laws was widened by adopting legislation relating to procedural issues where the legal basis and competence of the EU was also not as such prescribed.24 Also on a policy level, increased calls for the improvement of victims’ rights implementation are made. The European Council, in the 2009 Stockholm Programme, called for an integrated and coordinated approach to victims. The Council acknowledged the unsatisfactory implementation of the Framework Decision and the Directive. It called upon Member States and the Commission to take a variety of measures, from strengthening legislation and policy to increasing research. The European Council called on the Commission and the Member States to, amongst others: – examine how to improve legislation and practical support measures for protection of victims and to improve implementation of existing instruments; – offer better support to victims otherwise, possibly through existing European networks that provide practical help and put forward proposals to that end; – examine the opportunity of making one comprehensive legal instrument on the protection of victims, by joining together the Directive on compensation to victims and the Framework Decision on victims, on the basis of an evaluation of the two instruments.25 Work to that end has recently been initiated by the European Commission early in 2010 in consultation with Victim Support Europe and individual experts. Under consideration is an omnibus directive incorporating updated versions of both the

23 Peers,

S. (2008). ‘EU Criminal Law and the Treaty of Lisbon’, European Law Review, 33, 4, 507–529. 24 See further Rijken & Letschert, ‘Harmonizing Legislation Post-Lisbon’ (2011). 25 See The Stockholm Programme – An open and secure Europe serving and protecting the citizen, European Council, Brussels, 2 December 2009.

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Framework Decision and the Directive on State Compensation. It therefore appears that the European Union is currently putting the victims’ issue, unlike the UN, more prominently on the agenda.26 A careful caution should, however, be made. Considering the poor implementation results of the existing EU victims’ rights instruments, the question how to effectively improve the current situation seems more and more urgent. The various, often uncoordinated, evaluation studies have until now not been able to provide a clear and coherent picture on desirable reforms.

2.2.2 Compensation to Crime Victims At the European level, two important documents exist that deal with the specific issue of compensation to victims. It is often stated that victims are primarily in need of respect and recognition. Having noted that, it is obvious that many victims also suffer financial consequences from the crime committed against them. This burden can be alleviated by payment of compensation (or reparation) by the offender (in American law known as restitution). In a majority of cases, though, the offender is not found or apprehended, or is unwilling or unable to compensate the damages incurred by the victim. It is widely felt that when this happens in instances of violent intentional crime, the state should step in and provide financial compensation to victims as an expression of solidarity with their fate. State funds for the payment of (partial) compensation are among the oldest provisions for victims of crime, in many Western countries dating back to the 1970s. This principle has also been fully recognized in the UN Declaration of 1985, and was subsequently reaffirmed and elaborated in a number of instruments specifically dedicated to this topic. Most noteworthy in this respect are the early Council of Europe Convention on the Compensation of Victims of Violent Crimes (1983) and the more recent European Union Directive relating to Compensation to Crime Victims (2004), already mentioned. The Council Directive 2004/80/EC of 29 April 2004 relating to Compensation for Crime Victims aims at establishing state compensation funds in Member States where they do not exist and to facilitate access to compensation in situations where the crime took place in another Member State than that of the victim’s residence. The Directive seeks to set minimum standards, not to harmonize national laws because “the latter would not be appropriate in view of the current differences between the Member States, due to the close connection to national laws on civil liability and tort and also due to socio-economic discrepancies.”27 The Directive 26 See

also Council Conclusions on a strategy to ensure fulfilment of the rights of and improve support to persons who fall victim to crime in the European Union, 2969th Justice and Home Affairs Council Meeting, Luxembourg, 23 October 2009. Also within the field of violence against women, children and sexual identity violence important developments are underway. The EU is considering adopting harmonizing legislation in this field and is currently (2010) undertaking a feasibility study in this regard. 27 See Proposal for a Council Directive on Compensation to Crime Victims, COM (2002) 562 final, 2002/0247 (CNS), Brussels, 16 October 2002, p. 10.

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ensures equal access for all EU citizens to compensation. The Directive sets up a system of cooperation to facilitate access to compensation to victims of crime in cross-border situations, which must be implemented by the compensation Funds of Member States. The Directive therefore requests from all Member States that a functioning compensation mechanism is in place.28 Article 2 states that compensation shall be paid by the competent authority of the Member State on whose territory the crime was committed. The Directive furthermore instructs states to establish assisting authorities and deciding authorities, whose tasks vary from providing assistance to potential applicants and deciding upon applications for compensation. The Directive does not address issues relating to the nature of the expenses eligible for compensation.29 According to the explanatory memorandum, close relatives and dependants of victims that have died as a result of the injuries sustained are also entitled to protection under the Directive.30 The Council of Europe adopted in 1988 the first piece of hard law on victims’ rights with a Convention on the thematic issue of crime compensation. This Convention, which entered into force on 1 February 1988, creates minimum standards relating to compensation for the State Parties.31 The scope of application of the Convention concerns victims of intentional crimes of violence who have suffered serious bodily injury or impairment of health, which is directly attributable to the intentional crime. Surviving dependants of persons who have died as a result of such crimes (Article 2) are eligible as well. Article 3 incorporates the territoriality principle, which declares the Convention applicable to nationals of the State Party to the Convention, and to nationals of all Member States of the CoE who are permanent residents in the state on whose territory the crime was committed. Compensation is independent of the arrest of the perpetrator. Compensation shall cover at least the following items: loss of earnings, medical and hospital and funeral expenses, and, with regard to dependants, loss of maintenance (Article 4). 2.2.2.1 Implementation Unsurprisingly, the latter two legally binding documents have been adopted in one of the more affluent regions of the world. In most countries of the world, a national compensation scheme for victims of violent crimes is still a distant ideal. Improving

28 See

paragraph 7 of the Preamble. original draft did contain standards on this issue, noting that ‘compensation shall cover pecuniary and non-pecuniary losses [. . .]’. Id., Article 4, p. 22. 30 Proposal for a Council Directive on Compensation to Crime Victims, COM (2002) 562 final, 2002/0247 (CNS), Brussels, 16 October 2002, p. 12. 31 Signed in Strasbourg on 24 November 1983, European Treaty Series (ETS) – no. 116. 21 of the 47 Member States of the CoE have ratified the convention, most of them being also EU Member States. Already in 1977, a resolution on compensation of victims of crime was adopted by the Council of Ministers which paved the way for the 1983 Convention. See for more information also Buck, K. (2005). ‘State Compensation to Crime Victims and the Principle of Social Solidarity – Can Theoretical Analysis Contribute to a Future European Framework’, European Journal of Crime, Criminal Law and Criminal Justice, 13, 2, 148–178. 29 The

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this situation globally would seem one of the main challenges for the victims’ rights movement in the present century. The application of the EU Directive on Compensation to Crime Victims (Directive 2004/80/CE du Conseil du 29 avril 2004) was recently evaluated.32 All Member States who have implemented the Directive have schemes in place which allow victims to submit an application for compensation. All Member States who have implemented the Directive (with the exception of Estonia) have implemented Articles 2–3 which requires the creation of responsible authorities and administrative procedures. Only few victims make use of the option to file complaints against foreign compensation funds through sister organizations in their home country. A major shortcoming is furthermore that in two Member States no general compensation schemes for victims of violent crime exist at all (Italy and Greece). The huge variation in eligibility criteria of existing schemes also seems to limit the possibility of victims to claim compensation in many Member States. Other differences within the EU Member States relate to rules with regard to the eligibility requirements concerning cross-border victimization, especially with regard to EU nationals victimized outside the EU and non-EU residents victimized in an EU Member State. It should furthermore be considered whether a clear rule should be established on additional compensation from a victim’s home country. For example, if a Dutch citizen becomes a victim of a crime in Hungary, should this entail that he has a statutory right to claim additional compensation in the Netherlands? The APAV-INTERVICT study of 2010 on the implementation of the Framework Decision furthermore indicates that there is broad dissatisfaction over the timelines of compensation, the adequacy of payment, the compensation procedure and the ease of making a claim.

2.2.3 Specific Instruments: Victims of International Crimes33 Victims of international crimes such as genocide, crimes against humanity and war crimes, or other gross human rights violations often experience existing international and regional legal instruments on general victims’ rights to be inadequate or difficult to implement. By adopting the UN 1985 Declaration, governments agreed to respect the rights of victims of crimes in their domestic courts. The initial draft of the Declaration sought to extend its scope to include victims of abuse of power. For lack of political consensus, the rights and interests of victims of abuse of power were not fully addressed in the adopted version. This omission was partly corrected 32 See

Report from the Commission to the Council, the European Parliament and the European Economic and Social Committee on the application of Council Directive 2004/80/EC relating to compensation to crime victims, SEC(2009)495, Brussels, 20 April 2009. http://ec.europa.eu/ justice_home/doc_centre/civil/studies/doc/study_compensation_to_crime_victims_en.pdf. 33 The examples in this section follow the themes discussed in the subsequent chapters; for that reason, no mention is made of the still expanding legal victims’ rights framework relating to violence against women and children.

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by the subsequent adoption of the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.34 The acknowledgement of the victimological notion of collective victimhood makes this instrument conceptually truly innovative.35 The Preamble explicitly notes that “contemporary forms of victimization, while essentially directed against persons, may nevertheless also be directed against groups of persons who are targeted collectively.” Interesting is also that in Section V, Article 8, it is stated that “where appropriate, in accordance with domestic law, the term “victim” also includes the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization” and thus follows the definition of the 1985 Declaration. The latter category is not mentioned in all victims’ rights instruments.36 Furthermore, relating to access to justice, Article 13 provides that, “in addition to individual access to justice, States should endeavour to develop procedures to allow groups of victims to present claims for reparation and to receive reparation, as appropriate.” Section VII, Article 11b refers to “reparation” as constituting a moral imperative, in the sense that “what has been broken must be mended.” It entails much more than “compensation,” by which international law understands “restitution in money.” Reparation implies restoration of the victim. In this way, it can contribute to aims of rehabilitation, reconciliation, restoration of democracy and law. In case of acts of omissions which constitute gross violations of international human rights law or serious violations of international humanitarian law that can be attributed to a state, a state must provide victims with adequate, prompt and effective reparation. Liable parties are obliged to reimburse the state when the latter has already paid the victims. States should furthermore endeavour to establish national programmes for reparation and other assistance to victims in the event that the party liable for the harm suffered is unable or unwilling to meet its obligations. The different forms of reparation were identified by the UN Special Rapporteur entrusted with the task to draft the principles, Mr. Van Boven, as meaning “restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition,” now laid down in Article 18.37 34 The

principles are often referred to as the Van Boven/Bassiouni Principles, referring to the two principal drafters. 35 The guidelines were adopted and proclaimed by the United Nations General Assembly on 16 December 2005 (Res. 60/147), after a 15-year period of negotiations. Note that the Preamble mentions that the principles and guidelines do not ‘entail new international or domestic legal obligations, but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary though different as to their norms.’ 36 For instance in the EU and CoE instruments mentioned above. 37 Van Boven, T. van (2009). ‘The Right to a Remedy as contained in International Instruments: Access to Justice and Reparation in Treaties and the New United Nations Principles’, in: Flauss, J.F. (ed.), La protection internationale des droits de l’homme et les droits des victimes (pp. 31–56), Bruxelles, Editions Bruylant, p. 22. See also De Greiff, P. (2006). ‘Justice and Reparations’, in:

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The Basic Principles and Guidelines have incorporated some of the classical victims’ rights, such as the one in Article 10 relating to the treatment of victims (ensuring that victims should be treated with humanity and respect for their dignity, ensure safety, physical and psychological well-being and privacy, and the prevention of secondary victimization). Another example of a classical victims’ right is the right to information (Article 24), urging states to develop means of informing the general public and, in particular, victims of gross violations, of the rights and remedies contained in the Basic Principles, and of all available legal, medical, psychological, social, administrative and all other services to which victims may be entitled. Important also is that Article 24 mentions that victims are entitled to seek and obtain information on the causes leading to their victimization, and to learn the truth with regard to these violations. The right to learn the truth is not incorporated so prominently in other international victims’ rights instruments. For victims of international crimes, this is an important aspect that needs to be addressed when guaranteeing the right to information. It goes beyond existing regulations about providing information on important developments in a possible criminal procedure or the availability of services.38

2.2.4 Victims at the International Criminal Court International criminal justice mechanisms have too often overlooked the fact that providing justice in the aftermath of international crimes should also adequately address victims’ needs.39 Victims of crimes tried by international tribunals such as the Tribunal for the Former Yugoslavia or the Rwanda Tribunal found that their rights were only marginally addressed. The International Criminal Court takes a more comprehensive approach in its mandate. The Statute of the Court has been hailed as “a milestone in victimology” because it contains some far-reaching provisions relating to victims’ issues.40 Compared to the procedural rules governing previous International Tribunals (such as the former Yugoslavia and Rwanda), the main improvements are the extended availability of protective measures for victims,

De Greiff (2006) (ed.), The Handbook of Reparations, The International Center for Transitional Justice, Oxford, Oxford University Press, pp. 452–503. 38 See for more information on the van Boven/Bassiouni Principles and reparation in general, Shelton, D. (2005). ‘The United Nations Principles and Guidelines on Reparations: Context and Contents,’ in: De Feyter, Parmentier, Bossuyt, & Lemmens (eds.), Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations, Antwerpen, Intersentia, pp. 11– 32, and Letschert, R.M, Haveman, R., Brouwer, de, A.L.M., & Pemberton, A. (2010). Devising Victimological Approaches to International Crimes, Antwerpen, Intersentia. 39 See Drumbl, M.A. (2007). Atrocity, Punishment and International Law. Cambridge, Cambridge University Press. 40 Groenhuijsen, M.S. (2005). ‘International Protocols on Victims’ Rights and some Reflections on Significant Recent Developments in Victimology’, in: Snyman & Davis (eds.), Victimology in South Africa, Pretoria, Van Schaik Publishers, pp. 333–351.

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expanded victim participation, and better provisions on reparation.41 Another innovation is the establishment of a Victims and Witnesses Unit that advises the Prosecutor and the Court on a wide range of appropriate protective measures, security arrangements, counseling and assistance. The ICC also boasts a Victims’ Participation and Reparations Section that is responsible for assisting victims with the organization of their legal representation before the Court.42 These are major steps forward and the ICC provisions in this regard might turn out to be a “best practice” in reducing risks of secondary victimization.43 Furthermore, an important innovation is that the Court may award reparations on an individualized basis or, where it deems appropriate, on a collective basis or both. In addition, a Trust Fund has been set up aiming to provide victims with reparation.44 Nevertheless, the enormous number of victims wishing to participate in the Court’s procedures poses the Court for a yet still unresolved challenge, as will be further elaborated in Chapter 12. There is, however, a significant interest here for victims, as a satisfactory day in court could add to rebuilding a victim’s self-esteem, as is evidenced by various victimological studies.45

2.2.5 Victims of Trafficking in Human Beings and Other Forms of Organized Crime According to the 2005 Human Security Report, “the trafficking in human beings has burgeoned into a multi-billion-dollar industry that is so widespread and damaging to its victims that it has become a cause of human insecurity.”46 In the past 10 years, human trafficking has become a major priority of the world community. In 2000, the UN adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the Convention against Transnational Organised Crime.47 The Protocol contains some specific victims’ 41 Garkawe, S. (2003). ‘Victims and the International Criminal Court: Three Major Issues’, International Criminal Law Review, 3, 345–365. 42 See for more information http://www.icc-cpi.int/victimsissues.html. 43 Secondary victimisation is defined in CoE Recommendation 2006. (8) as ‘victimisation that occurs not as a direct result of the criminal act but through the response of institutions and individuals to the victim’ (Article 1.3). 44 http://www.icc-cpi.int/vtf.html. 45 In July 2009, INTERVICT organized an expert meeting on “developing victimological approaches to international crimes”, analyzing whether victims of the latter have different needs than victims of conventional crime. The results are published in Letschert et al. (2010). See furthermore http://www.tilburguniversity.nl/intervict/events/reportrwanda.pdf for the report of the conference. See further Danieli, Y. (2009). ‘Massive Trauma and the Healing Role of Reparative Justice’, in: Ferstman, C., Goetz, M., & Stephens, S. (eds.), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity, Martinus Nijhoff Publishers. 46 Human Security Report, 2005, 86. 47 See also Chapters 4 and 5. Chapter 5 will provide detailed analyses of the implementation status of the Convention against Transnational Organized Crime.

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rights which have a wide scope in the sense that reference is made to a set of socioeconomic measures. For instance, Article 6.3 notes the following: Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society, and, in particular, the provision of: (a) Appropriate housing; (b) Counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand; (c) Medical, psychological and material assistance; and (d) Employment, educational and training opportunities. International organizations such as the IOM, ILO, UNICEF and UNODC have initiated global programmes against human trafficking. The European Commission has been actively engaged by developing a comprehensive and multidisciplinary approach towards the prevention of and the fight against human trafficking. Also, a Framework Decision on Combating Trafficking in Human Beings was adopted, although here the focus is on prevention and not so much on the victims.48 In 2010, following the Lisbon Treaty, the EU is negotiating a proposed Directive on Preventing and Combating Trafficking in Human Beings, and Protecting Victims. This document has a wider scope than merely combating and includes various provisions relating to the protection of and assistance to victims. The Council of Europe adopted in 1995 a Convention on Action against Trafficking in Human Beings, including measures to protect and promote the rights of victims. The OSCE has set up the Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings, whose mandate is to support the development and implementation of anti-trafficking policies, also promoting a comprehensive approach.49 These initiatives all share a commitment to pursue an integrative approach, covering both prevention, protection of victims and prosecution of criminals. An integrative approach is necessary, considering the wide range of interdependencies in both countries of origin, transit and destination that influence human trafficking. Development in these efforts will be further discussed in Chapters 4 and 5.

2.2.6 Victims of Terrorism In 2005, the CoE adopted Guidelines on the Protection of Victims of Terrorist Acts.50 The guidelines aim to address the specific needs and concerns of victims of terrorist acts, in identifying the means to be implemented to help them, and to protect their 48 2002/629/JHA: Council Framework Decision of 19 July 2002 on combating trafficking in human

beings. 49 http://www.osce.org/cthb/13408.html. 50 See

Guidelines of the Committee of Ministers of the Council of Europe on the Protection of Victims of Terrorist Acts, 2 March 2005. The Guidelines are laid down in the Appendix to this chapter. The CoE also adopted Guidelines on Human Rights and the Fight against Terrorism, adopted by the Committee of Ministers at its 804th meeting (11 July 2002), which addresses victim’s compensation issues in paragraph XVII.

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fundamental rights while excluding any form of arbitrariness, as well as any discriminatory or racist treatment.51 The scope of the guidelines is primary (excluding those who only suffer economic loss) and secondary victims (meaning direct victims and their close family, in appropriate circumstances). The Council of Europe was the first European organization to adopt a specific instrument for victims of terrorism. In 2007, the European Union commissioned a group of research institutes to draft EU recommendations for victims of terrorist acts.52 The proposed EU Recommendation on Assistance to Victims of Acts of Terrorism covers a more extensive approach for the assistance to victims of terrorism, including, among other things, provisions relating to psycho-social assistance (both emergency and continuous assistance), access to justice, compensation, information strategies, and access for victims of terrorism to restorative justice practices and procedures. As regards, for instance, emergency assistance, Member States should ensure that evidence-based and well-coordinated emergency assistance, including the provision of information and medical, psychological, social and material support is available. With regard to access to justice and administration of justice, particular focus was put on participatory rights for victims of terrorism as well as on legal aid. In this respect, a more extensive approach than offered in the existing international legal instruments was incorporated in the standards. The compensation provision does not only focus on ensuring adequate financial compensation (also through mass claims), but also calls upon states to consider other reparative measures such as commemorations and tributes to the victims. Finally, restorative justice approaches were included in the proposed EU recommendation. This approach was not explicitly mentioned in the Council of Europe Guidelines (2005), although a reference to mediation, as one form of restorative justice practice, can be found in other legal instruments at CoE level. Finally, within the UN, important developments relating to victims of terrorism are taking place, mainly relating to the establishment of a voluntary trust fund.53 2.2.6.1 Implementation There are still considerable difficulties for victims of international crimes or gross violations of human rights to access effective and enforceable remedies and reparations for the harm they suffered or to access various other rights.54 It is a

51 Preamble,

para. h. Letschert, R.M., Staiger, I., & Pemberton, A. (2010). Victims of Terrorism, Towards a European Standard of Justice, Springer Publishers, also including the Draft Recommendation. 53 In September 2009, the UN organised a High-Level Expert Meeting on Addressing the Needs of Victims of Terrorism, for the report see ‘Supporting Victims of Terrorism’, Available through http:// www.un.org/terrorism/pdfs/UN%20Report%20on%20Supporting%20Victims%20of%20Terrorism pdf (last checked March 2010). See also http://www.un.org/terrorism/workgroup3.shtml. 54 See also Falk, R. (2006). ‘Reparations, International Law and Global Justice’, in: Pablo de Greiff (ed.), The Handbook of Reparations, The International Center for Transitional Justice, Oxford, Oxford University Press, p. 491 and Letschert, R.M. & Van Boven, Th. (2010). ‘Reparation to Victims of Mass Crimes – Challenges involved’, in Letschert et al. (2010). 52 See

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long established principle of international law that the breach of an international obligation by a State entails the duty of the State to make reparations.55 As the result of an international normative process, the legal basis for a right to a remedy became firmly anchored in the elaborate framework of international human rights’ instruments, now widely ratified by States.56 And yet, only few reparations have actually been granted in the aftermath of mass atrocities.57 Mere codification of this general overarching right in various national and international instruments is just a first step. A process of consistent implementation and compliance of the various rights embodied under this general principle is one of the biggest challenges. Although the reparation claim is well-founded in abstracto, in assessing the claim in concreto, we must be cautious to conclude too firmly that a rule of general international law providing the individual or groups of individuals with a right to claim reparations for human rights violations exists.58 As Seibert-Fohr notes, however, practice under the international human rights treaties at least reveals one common denominator; the right to access to judicial remedies which has been widely incorporated into international human rights treaties.’59 Much has been written on the implementation of the far-reaching victims’ provisions in the ICC Statute, both in the Court’s own daily work, as well as on the 55 Factory at Chorzow, Judgment No. 8, 1927, P.C.I.J., Series A, no. 17, at 29. Article 1 of the Draft

Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its 53rd Session 2001. 56 Boven, T. van (2009). ‘Victims’ Rights to a Remedy and Reparation: The New United Nations Principles and Guidelines’, in: Ferstman, Goetz, & Stephens, Reparations for Victims of Genocide, War Crimes and Crimes Against Humanity, Martinus Nijhoff, p. 21. 57 Roth-Arriaza, N. (2003–2004). ‘Reparations Decisions and Dilemmas’, Hastings International and Comparative Law Review, 157. 58 Authors recognizing an individual right to reparation include Hofmann, R. (2006). ‘Victims of Violations of International Humanitarian Law: Do They Have an Individual Right to Reparation Against States Under International Law’, in: Dupuy, Fassbender, Shaw, & Sommermann (eds.), Common Values in International Law – Essays in Honour of Christian Tomuschat, Zegveld, L. (2003). ‘Remedies for Victims of Violations of International Humanitarian Law’, 851, IRRC, Fleck, D. (2007). ‘Individual and State Responsibility for Violations of the Ius in Bello – An Imperfect Balance’, in: Heintschel von Heinegg, & Epping (eds.), International Humanitarian Law Facing New Challenges, Heidelberg. For the opposite view, see, amongst others, Seibert-Fohr, A. (2009). Prosecuting Serious Human Rights Violations, Oxford, Oxford Press, p. 244, Tomuschat, C. (1999). ‘Individual Reparation Claims in Stances of Grave Human Rights Violations: The Position Under General International Law’, in: Randerzhofer, A. & Tomuschat, C. (eds.), State Responsibility and the Individual, Martinus Nijhoff. More recently, the ILA Committee on Reparations to Victims of Armed Conflict came to the following conclusion: “in view of the relevant state practice and taking note of a strong majority among scholars, the Committee came to the conclusion that, until most recently, international law did not provide for any right to reparation for victims of armed conflicts. The Committee submits, however, that the situation is changing: There are increasing examples of international bodies proposing, or even recognising, the existence of, or the need to establish, such a right,” Hofmann, R. (2010), ‘Reparations for Victims of Armed Conflicts’, Report to the ILA Hague Conference 2010, p. 2 and 14. The Committee has drafted a declaration on the topic of reparation which will be discussed at the 2010 ILA (International Law Association) Conference. 59 Seibert-Fohr, A. (2009, p. 244) and Letschert, R.M. & Boven, T. van (2010). ‘Challenges in Providing Reparations after Mass Victimization’, in: Letschert et al. 2010.

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domestic level when trying perpetrators of international crimes on the basis of universal jurisdiction.60 A more detailed description and assessment of the ICC’s treatment of victims will be given in Chapter 12.61 Victims of human trafficking often encounter various difficulties in claiming their rights. Besides being a victim of a heinous crime causing severe psychological trauma and socio-economic distress, they often fall victim to the non-corresponding prosecutorial interests of the Public Prosecution Office and the interests of the migration officers (see further Chapter 4). Lastly, some words on the implementation of rights for victims of terrorism need to be added. Here the picture is somewhat diffuse. On the one hand, there are the many stories of victims who complain that their rights cannot be applied, often because of the fact that no court cases are being held (due to the fact that the perpetrator died during the attack or cannot be found). In addition, governments often hide in secrecy when it comes to unravelling the narrative about the causes of the attack, for reasons of state security. This leaves victims without their day in court and with many unanswered questions. On the other hand, several of the more recent massive terrorist attacks led to an enormous outbreak of activities by both governmental and non-governmental organizations providing psycho-social assistance or financial support through ad hoc established compensation schemes or charity.62

2.3 From Multi-Level Governance to Multi-Level Implementation What follows from the analysis above is that it is one thing to create an international or regional legislative framework in the form of legal or quasi-legal instruments, but quite another to actually uphold them in practice before domestic or international

60 See

Redress Report, Universal Jurisdiction in Europe, Criminal prosecutions in Europe since 1990 for war crimes, crimes against humanity, torture and genocide http://www.redress.org/documents/unijeur.html. The report gives the following examples; “In Italy, for instance, groups representing relatives of the disappeared in Argentina were denied their applications to join proceedings. In Switzerland, the spouse of a victim who had died in the Rwandan genocide withdrew as partie civile from the case against N. when forced to choose between becoming an ordinary witness and gaining the right to witness protection measures, or remaining as partie civile and not being eligible for such protection. There are also disincentives for victims to apply to be partie civile. For instance, in Belgium if victims initiate an investigation from which no prosecution results, the victims are obliged to pay the costs of the investigation. Any compensation orders made in such cases are also difficult to enforce.” See also Goldmann, M. (2008). ‘Implementing the Rome Statute in Europe: From Sovereign Distinction to Convergence in International Criminal Law?’ Finnish Yearbook of International Law, 16, (2005/2008), 5–29, also for further references. 61 See also the stocktaking study on the impact of the ICC on victims that was carried out for the 2010 ICC Review Conference in Kampala, Uganda, Available at http://www.icccpi.int/iccdocs/asp_docs/ASP8R/ICC-ASP-8-49-ENG.pdf. 62 For examples, see Letschert, R.M. & Ammerlaan, K. (2009). Compensation for Victims of Terrorism, in: Letschert et al.

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courts. The legal consequences of globalization, like the growth in collective legislation and regulation, national and international state and non-state actors, and the rise in the number of international fora for dispute settlement, undoubtedly also influence the implementation of victims’ rights and the accommodation of victims’ needs. What follows also from the discussion of the different victims’ rights instruments in the previous section is that international legal orders are increasingly interrelated – be it through the spread of international standards, transnational effects of domestic provisions or decisions, or the increased weight of international or national non-state actors in the formation of international law.63 To illustrate the latter, NGOs (especially the women’s coalition) played an important role in shaping key provisions in the ICC Statute and in achieving early ratification of the ICC Statute. Within Europe, a network of victim support organizations focusing on victims of terrorism was created and has become an important lobby group for EU activities in this field.64 Also, Victim Support Europe gains influence over the European Union crime victims’ agenda.65 And the already mentioned World Society of Victimology lobbies in UN circles for the advancement of a UN Convention on victims’ rights. This global governance can be defined as the system of rules and institutions established by the international community and private actors to manage political, economic and social affairs on the global scale.66 Common features emanating from global governance are the use of both non-hierarchical and sometimes top-down forms of governing, the emergence of multi-level structures of policy implementation, and the enhanced role of non-state actors within them.67 Through forms of global governance, “state sovereignty becomes multiple, overlapping and shared.”68 Governance, also in the field of victims’ rights, has thus become more and more multi-level. The increasing decision-making powers and coordinating tasks of the

63 See Goldmann, M. (2008). ‘Implementing the Rome Statute in Europe: >From Sovereign Distinction to Convergence in International Criminal Law?’ Finnish Yearbook of International Law, 16, (2005/2008), 5–29. And Boyle, A. & Chinkin, C. (2007). The Making of International Law, Oxford, Oxford Press. 64 See http://www.europeanvictims.net. 65 In 2009, VSE issued a Manifesto calling the European Union to take a number of measures to advance the implementation of victims’ rights. Available at http://www.victimsupporteurope.eu 66 The concept of multilevel governance was first used to describe European integration, introduced by Marks, G., Hooge, L., & Blank, K. (1996). ‘European Integration from the 1980s: State-Centric v. Multi-Level Governance’, Journal of Common Market Studies, 34, 341–78. 67 “Multi-level governance is often referred to as a system of continuous negotiation among nested governments at several territorial tiers, describing how supranational, national, regional, and local governments are enmeshed in territorially overarching policy networks. Multi-level governance emphasizes both the increasingly frequent and complex interactions between governmental actors and the increasingly important dimension of non-state actors that are mobilized in cohesion policymaking and in the EU policy more generally”, see Marks, M. (1993). ‘Structural policy and Multilevel governance in the EC’, in: Cafruny, A. & Rosenthal, G. (eds.), The State of the European Community: The Maastricht Debate and Beyond, Boulder Colorado, Lynne Rienner, pp. 391–411. 68 Held, D. (1995). Democracy and the Global Order, Cambridge Press, in: Aas (2007, p. 148).

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European Union in the area of “freedom, security and justice” can serve as an example.69 On the international level we can refer to the establishment of a permanent International Criminal Court, next to the several temporary special international or hybrid international tribunals.70 The obligations for states to implement the provisions of the ICC Statute in their domestic legislation calls for increased cooperation between different state and non-state actors when it comes to successfully prosecuting perpetrators of international crimes in domestic courts and providing services to victims. A major challenge for the future is that national criminal justice systems not only exchange evidence and transfer offenders across borders but also cooperate regarding the involvement of victims residing outside national territories in the administration of justice. From the evaluations described above, it appears that providing redress to victims in a cross-border or collective context proves to be a particularly difficult challenge. We believe that weak institutional arrangements make international cooperation in addressing protection of victims in these situations difficult to achieve and they impair the implementation of effective legal and normative frameworks to handle the full range of victims’ issues discussed in this book. So far, experience in the field of implementing victims’ rights on the national level teaches that a codification in order to be successful requires a complicated process of “multi-level implementation” in which the state, NGOs, judges, prosecutors, probation officers, police officials, and victim support practitioners all participate. All have an important role in safeguarding that the “chain of protection” remains unbroken.71 But even that still falls far short of effectively turning the rights included in the international documents into a reality, if they would not be supplemented by proper budgets, plans, aims, objectives, targets and timetables for implementation. Our argument is that the implementation of victims’ rights in cases of crossborder victimization or collective victimizations poses additional problems because providing proper assistance, psycho-social, legal or financial assistance, becomes more complicated. Not only do national partners in the field of conventional crime victims need to cooperate, but now coordination and cooperation needs to be established with other national chain partners and international or regional partners that took over some of the state’s responsibilities. The allocation of responsibility for implementation is unclear, forcing victims to go shopping in the wood of global governance. This is even more difficult with the complicated frameworks of access to justice in the international sphere. Between global governance and global crime,

69 For

instance, Europol, Eurojust, the European Arrest Warrant, Frontex and the Police Chiefs Operational Task Force can be mentioned. 70 For an overview, see http://www.globalpolicy.org/international-justice/international-criminaltribunals-and-special-courts.html. 71 See Van Genugten et al. (2007).

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the victim often gets lost in the maze of abundant and heterogeneous victims’ rights (referred to by Aas as global legal plurism)72 and the desperate search for those responsible for upholding them.73

2.4 Concluding Observations The playing field for offenders has expanded from the local or national to the global, leading to new – international and transnational – forms and manifestations of crimes. States with their traditional systems of criminal prosecution and security policies as well as victims have often found themselves powerless to deal with these new forms of crime. Finding solutions for “problems without passports” has proved to be extremely difficult. In addition, the adequate implementation of victim protection schemes for victims of various forms of collective victimizations through terrorist attacks or international crimes such as genocide is a huge challenge. The difficulty for cross-border victims to have access to justice in the country where the crime was committed, in combination with the difficulty to arrest and prosecute perpetrators of transnational crimes (leading to immunity for the perpetrators and impossibility for victims to claim victim status before a court), makes access to victims’ rights often illusory. In line with the spirit of Article 12 of the EU Framework Decision and Article 1 of the EU Directive, there is acknowledgement that additional measures need to be implemented in order to fulfil the needs of victims of cross-border victimization. To address this, we first present some recommendations with regard to the cross-border context, later followed by recommendations relating to collective victimizations. What seems most urgent is that mutual legal aid in the field of criminal justice as foreseen by the Europol and Eurojust initiatives needs to be expanded with mutual victim assistance across borders. As rightly put: “the view is that borderless threats require borderless law enforcement across organizational entities nationally and internationally, and across categories of citizens and non-citizens.”74 This applies as much to the law enforcement side as the victim protection part. This requires the setting up of institutional arrangements, which seem more feasible at this juncture in an EU setting than at the global level. The Spanish Presidency of the EU in 2010 has made the crime victims’ cause one of its priorities.75 The time, we would say, seems right to set up an EU Victims’ Rights Agency to coordinate and monitor the various requirements laid down in the different instruments (or expand the mandate of Europol or Eurojust with a new operational mandate). Through such an Agency, Articles 11 and 12 of the Framework Decision could be brought to life. This agency 72 Aas

(2007, p. 148). Fraser who notes that within the globalised justice framework, it is no longer clear what the scope of justice is, and who counts as its subject. Fraser, N. (2005). ‘Reframing Justice in a Globalized World’, New Left Review, 6, November–December, pp. 69–88, in: Aas (2007, p. 187). 74 Cited in Aas, K.F. (2007, p. 106). 75 http://www.apav.pt/portal_eng/pdf/programa_eu_2010_esp.pdf. 73 See

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could also take the lead in assuring compensation for cross-border victims on an equal footing across the Union, e.g. by setting up a complementary EU compensation fund. As argued above, the EU Directive which prescribes the creation of assisting and deciding authorities, is no guarantee for such equal playing field for cross-border victims. Moreover, an overall improvement of knowledge and awareness amongst governmental and non-governmental institutions regarding cross-border victimization is needed. As recommended by Victim Support Europe, to address this, the EU could for instance arrange educational networks and lectures to improve coordination of cross-border operation and procedures between all bodies involved in giving support to victims.76 On a more global level, any institutional reform seems an unrealistic goal for the immediate future. However, much could be gained if existing bodies, notably UN bodies working in the crime field, such as the Crime Commission, would strengthen their efforts to enhance cooperation between the various international and national organizations and other actors in the victims’ rights field. This includes intergovernmental as well as non-governmental actors. As to the latter, it would be important to transcend the level of cooperation, and make national as well as international and regional NGOs full co-owners/stakeholders of the victims’ rights agenda. They might be able to infuse the deliberations of these bodies with a people-oriented discourse that could help to overcome politically inspired deadlocks or stalemates. There is little doubt that the elaboration and adoption of a future UN Convention would push forward the implementation of victims’ rights. This would be even more the case if it retained the proposed monitoring mechanism of the Committee on Justice and Support for Victims of Crime and Abuse of Power. Ideally, such Committee would enter into a permanent dialogue with both governmental and non-governmental organizations. Also, including a Universal Periodic Review Mechanism as created by the UN Human Rights Council as one of the monitoring methods of the convention could enhance the implementation of victims’ rights.77 We do, however, recommend – if the Draft would ever be seriously discussed at the UN – to reflect upon the need to add a section on both the cross-border and collective victimization contexts and what such victimizations entail for the underlying state obligations in guaranteeing victims’ rights. Reference should be made to the ICC provisions, for instance the possibility to appoint common legal representatives of communities of collective victims. In addition, the establishment of the trust fund in combination with the reparations function of the ICC constitutes an unprecedented step forward for the rights of victims within international criminal law. Such 76 APAV-INTERVICT

Report, Recommendations Victims Support Europe on the basis of the report: p. 177. 77 The Universal Periodic Review (UPR) is a unique process which involves a review of the human rights records of all 192 UN Member States once every 4 years. The UPR is a State-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations.

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provisions could be of great benefit for victims of terrorism or other forms of organized crime. This would make the future UN Convention better equipped to serve the needs of global crime victims. In addition, it would also correspond to the human security concept as discussed in the following chapter. As indeed, parallel to transformations in the security domain to address new forms of crime, criminal justice has become more peopleoriented. If the concern for human security implies a need of developing global justice, such justice needs to be victim-centered to be viable and sustainable. A further analysis of collective victimization by a combined human security and victimological approach can significantly contribute to understanding the unique situation of human exposure to threats, risks, trauma and fear, and how to react appropriately to (re) gain security.78 The human security concept will be further elaborated in the next chapter, from which it will also become clear that access to victims’ rights in the less affluent countries is even more challenging than in most developed countries. Globalization has enabled the creation of formal and informal networks which allow international and national NGOs to engage with global agendas. Through this networking process, globalization also offers empowerment possibilities for those marginalized groups that strive for the same cause. On the other hand, through globalization, a complex system of multi-level governance came to the fore and a multi-level legal framework has been created, also complicating effective implementation of victims’ rights. However, since no national government alone can hope to tackle the shadow sides of globalization, multi-level governance to advance the interests of victims of global threats is inevitable. To make this a success, requires a coordinated and cooperative approach towards lawmaking, policy and institutional design, and an increased role for non-state actors.

78 See

also Ewald, U. (2002). ‘Victimization in the Context of War’, European Journal of Crime, Criminal Law and Criminal Justice, 2–3, 91 and Letschert et al. (2010).

Chapter 3

Human Security and the Emergence of a Global Conscience Ralf Bodelier

3.1 Introduction Since the 9/11 attacks in 2001 and the tsunami on Boxing Day 2004, the focus of policy makers, academics and intellectuals has been moving steadily towards new cosmopolitanism.1 After the Fall of the Berlin Wall in 1989 the process of globalization had been the point of focus. Today, however, attention has shifted towards the cosmopolitan mindset essential to this process of globalization. This cosmopolitanism is new in two respects. It unites the interests of the Self, firmly rooted in one’s own region and nation, with those of the Other, who is seen as member of the global community. But new cosmopolitanism also stands for two different phenomena: global fear and global empathy. Fear results in an increased concern for the self; empathy results in an increased concern for the other. A central concept related to this concern for the self and the other is dignity. The self and the other possess an intrinsic dignity that has to be safeguarded. New cosmopolitanism goes beyond mere philosophizing. It has brought forth at least two policy concepts, human development and human security. Where human development focuses exclusively on the interests of the other, human security deals with both the interests of the other and those of the self. Of the two, human security is therefore more closely linked to new cosmopolitanism. Due to its exclusive focus on the interests of the other, it was possible to translate the human development program into a Human Development Index and incorporate the program into the Millennium Development Goals. Impressive global support followed. Human security, on the other hand, did not easily translate R. Bodelier (B) Research Fellow at Intervict, Valentijnstraat 19, 5014KE Tilburg e-mail: [email protected] 1 I realize that the choice for 9/11 and the 2004 tsunami is debatable. To illustrate an idea similar to the one in this paper, Derrida & Habermas choose two different but equally impacting incidents in the spring of 2003. The security aspect is the morally obscene support (in their opinion) of several European countries for the war US president Bush wages on Iraq (January 2003). The concern aspect is represented by the protests against this very war in London, Rome, Madrid, Barcelona, Berlin and Paris on 15 February 2003. Habermas, Jürgen & Jacques Derrida (2003). ‘Nach dem Krieg: Die Wiedergeburt Europas’, Frankfurter Allgemeinen Zeitung, 31 May.

41 R. Letschert, J. van Dijk (eds.), The New Faces of Victimhood, Studies in Global C Springer Science+Business Media B.V. 2011 Justice 8, DOI 10.1007/978-90-481-9020-1_3, 

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into concrete tools or applications. There are no Human Security Goals, there is no Human Security Index, and only relatively few have heard of human security at all. Why is it that this concept does not take hold; it fits new cosmopolitanism like a glove. What has to be done to flesh it out? A possible answer can be found in integrating the two concepts and in seriously rethinking and researching its origins, i.e. new cosmopolitanism and its related concept dignity.

3.2 A New Cosmopolitanism Whereas the last decennia of the twentieth century were characterized by globalization, the first decennium of the twenty-first century clearly shows increased interest in the mindset of globalization: cosmopolitanism. Or rather: New Cosmopolitanism. Cosmopolitanism is a moral and political concept. The concept of an ideal community, which contrary to traditional communities, does not exist by virtue of excluding the other. Whereas a traditional community is organized around exclusive concepts like family, tribe, people, religion or nation, and ignores, excludes, conquers, assimilates or even kills those that do not belong to this family, tribe, people, religion or nation, cosmopolitanism focuses on an inclusive principle, on the belief that a number of basic human values allow people to unite. These human values are equality, mutual respect, tolerance, justice, non-violence and compassion. In turn, these human values protect that what makes man human: his intrinsic dignity; the fact that he can never be a means to an end – he can only be the end itself. Immanuel Kant clearly distinguishes between dignity and value. Whereas values are always ascribed by people, human dignity is original, it is an absolute inner value. The human values that aim to protect human dignity therefore coincide with what Kant called “the moral law within me,” as a compelling and basic notion of right and wrong; A notion that without being hampered by religious or regional moral codes or views includes a fundamental idea of what our society is and what it should be.2 A global community based on dignity, or rather human dignity, protected by human values. This is the essence of cosmopolitanism. New cosmopolitanism claims that this rather abstract form of global citizenship can exist next to a mild form of patriotism.3 “What makes modern cosmopolitanism modern, is not so much that it stands for a universal human community over and above local loyalties, but

2 Obviously, this view does not go unchallenged. Martha Nussbaum painfully points out that Kant is referring to a very specific member of the human race: the intelligent, active, male citizen. Women, the handicapped, and ‘non human animals’ do not enter Kant’s definition. This, however, did not stop John Rawls from building the most influential defence of justice in the twentieth century entirely on Kant’s views. Nussbaum, Martha (2006). Grensgebieden van het Recht. Over sociale rechtvaardigheid, Amsterdam, p. 57. 3 Only recently fiercely defended by Kwame Anthony Appiah, commuting between his Ghanese place of birth Kumasi and global Princeton. Appiah, Kwame Anthony (2006). Cosmopolitanism. Ethics in a World of Stranger, London.

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rather that it seeks to reconcile the idea of universal species wide human solidarity with particular solidarities that are smaller and more specific than the human species,” states sociologist Robert Fine.4 Philosopher Alain Finkielkraut chooses the following words: “To give the other what he is due, to honour him as a human being and as other, to acknowledge the similarities and at the same time welcome the differences between people, who would not embrace this great ambition?”5 The main difference between our time and Immanuel Kant’s eighteenth century is that exploring the world is no longer the exclusive domain of a select group of intellectuals, merchants or the establishment. There are practically no limits to travel, economies the world over have almost completely merged into a global economy, global networks of the Internet, radio, television, telephone and newspaper; all these phenomena make it possible for increasingly large numbers of people to follow what is happening in the lives of others. It also opens ways to intervene in the lives of others or to assume a degree of responsibility. In a global community it is also possible to finally be a true kosmou politês. For the first time in history we can actually test the cosmopolitan philosophy in real life. “The important fact now is that the human condition has itself become cosmopolitan,” writes Ulrich Beck, one of the world’s most leading thinkers where globalization is concerned: We need only highlight the fact that the most recent avatar in the genealogy of global risks, the threat of terror, also knows no borders. The same is true in the protest against the war in Iraq. For the first time a war was treated as an event in global domestic politics, with the whole of humanity participating simultaneously through the mass media. (. . .) In this way cosmopolitanism has ceased to be merely a controversial rational idea; in however distorted form, it has left the realm of philosophical castles in the air and has entered reality.6

Since the start of the new millennium new cosmopolitanism has become the subject of intellectual discourse among a wide range of academics; not only Martha Nussbaum, Robert Fine, Kwame Anthony Appiah and Alain Finkielkraut, but also Peter Singer,7 Amartya Sen,8 Jacques Derrida,9 & Jürgen Habermas.10 They all elaborate on the idea that this global view, this cosmopolitan state of mind, is

4 Fine,

Robert (2007). Cosmopolitanism, London, Routledge, p. 15.

5 According to Alain Finkielkraut. Finkielkraut, Alain, & Peter Sloterdijk (2005). De Hartslag van

de Wereld, Nijmegen, p. 37. Ulrich (2007). The Cosmopolitan Vision, Cambridge, Introduction. 7 The world can no longer do without global morality, states ethicist Peter Singer. In earlier days morality could hide in the extensive family, the village or the region; today the world is a global village. Therefore, our morality has to be a global morality. ‘We must develop an ethical basis on which to build a communal world in the next century.’ Singer, Peter (2002). One World: Ethics and Globalization, New Haven. 8 Sen, Amartya (2006). Identity and Violence: The Illusion of Destiny, New Delhi. 9 Derrida, Jacques (2001). On Cosmopolitanism and Forgiveness (Thinking in Action), London and New York, Routledge. 10 Habermas, Jürgen (2001). The Postnational Constellation, Cambridge, MIT Press. 6 Beck,

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essential in order to recognize and address global issues. Moreover, they are all convinced that – in whatever form – this new cosmopolitanism is here to stay. Obviously, this view will also meet fierce opposition. In the eyes of quite a few skeptics cosmopolitanism is a runaway project of a small minority who will profit from the process of globalization,11 but who have completely lost touch with “ordinary citizens” and their fears, needs and interests. To them cosmopolitanism represents estrangement and artificiality. The American political scientist Benjamin Barber, for instance, labels cosmopolitanism as “McWorld” and uses the phrase “toxic cosmopolitanism of global markets” to express his disapproval.12 “In an overly tribalized world, cosmopolitanism might be a useful counterpoint,” states Barber. “But ours is a world disenchanted in which Gemeinschaft and neighborhood, have for the most part been supplanted by Gesellschaft and bureaucracy. What we require are healthy, democratic forms of local community and civic patriotism rather than abstract universalism and the thin gruel of contract relations.”13 Skeptics like Barber are convinced of the fact that cosmopolitanism and e.g. nationalism or regionalism, are non-comparable phenomena. Whereas the latter are coloured by emotion and originality, cosmopolitanism is primarily a project of detached intellectuals. These skeptics doubt the globalization of morality and warn against overrating the powers of compassion. Cosmopolitan projects, they state, would have to be discontinued, starting with the European Union.14 However, this proposition that a cosmopolitan view were an artificial construct which could never compare to more direct forms of human compassion – e.g. at the level of a small village community – does not show great knowledge of historic developments. At one time, at the transition from village Gemeinschaft to national Gesellschaft, a similar reaction was seen: nationalism was thought to be strange and artificial. Nowadays it is completely natural for almost each individual to consider himself subject of a nation, and to stand up for those fellow subjects that live within the boundaries of that nation. Therefore, there is little reason to assume that this circle of sympathy would not spread. At this point I could put forward the sociological question whether or not this new cosmopolitanism is indeed spreading in this first decennium of the twentyfirst century. The question, whether or not the intellectual debate actually represents a social development or – as is suggested by the skeptics – whether it is merely limited to a prominent but small group of western intellectuals. I will try to answer this question at a later point in this paper. First, I choose to put forward a rather more philosophical question. How relevant is it to actually know whether or not the 11 Bovens, Mark & Anchrit Wille (2009). Diploma Democracy. On the Tensions between Meritocracy and Democracy, Verkenning for the NWO programme Contested Democracies, Utrecht/Leiden. 12 Barber, Benjamin R. (1996). ‘Constitutional Faith’, in Martha C. Nussbaum, For Love of Country? Boston, Beacon Press, p. 36. 13 Ibid., p. 31. 14 Ritter, Henning (2004). Nahes und Fernes Unglück. Versuch über das Mitleid, München, Beck. Cuperus, René (2006,) ‘Europe and the Revenge of National Identity’, in: René Cuperus, K.A. Duffek, E. Fröschl T. Mörschel (eds.). The EU. A Global Player? Münster, pp. 129–144.

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number of protagonists of cosmopolitan morality is indeed increasing? It might be much more relevant to know about the organizing potential of new cosmopolitanism. Or, to be like Robert Fine15 and rephrase a quote by Immanuel Kant, who wrote in 1784, commenting on his age: “If it is now asked whether we at present live in an enlightened age, the answer is no. But we do live in an age of enlightenment.” Today, Fine repeats Kant’s words: We do not live in a cosmopolitan age but we do live in an age of cosmopolitanism. As things are, we have a long way to go but we do have distinct indications that the way is being cleared for a cosmopolitan future so long as artificial measures are not deliberately adopted to prevent it. The age of cosmopolitanism may be understood more as a normative perspective for viewing the potentialities and necessities of our age than as an objective characterization of the age itself.16

Fine makes an important observation. By surpassing the question whether or not we will become cosmopolites, he defines the phenomenon as a magnetic field which – in an age of globalization – organizes our way of thinking. Cosmopolitanism provides us with a tool to understand the start of the third millennium. Albeit that the boundaries of cosmopolitanism are still vague and that, for now, we can only speak of it in probing terms. This open attitude towards new cosmopolitanism seems right to me. The concept is broad (ranging from a moral understanding between individuals, aimed at maintaining dignity, at any one place on this earth, to a global legal order and a political ideology). At the same time cosmopolitanism is “old,” often discussed and judged, subject to traditional definitions and therefore not easily transferred into a promising subject of well-defined research or policymaking. At this point in time, cosmopolitanism is mainly to be seen as a sign of the times, a sociological umbrella term and perhaps even a rallying cry that defines an actual development in general terms and assigns it a number of general characteristics. Two of these characteristics are the following. First of all there is the unification of the individual’s global human dignity with the need for local patriotism. The second characteristic is the fact that it moves around two phenomena, viz. a growing need for security and a growing need for development, a worldwide realization of global risks and an equally worldwide realization of global suffering.

3.3 Global Fear and Concern for the Self Around the globe, the attacks of September 11 awakened an already existing but so far dormant fear17 and subsequently these attacks mobilized the global concern for the self. For many the Al Qaida attacks were a first confrontation with what we could describe as mutual vulnerability. Suddenly we realized that globalization not only meant buying tickets in Mumbai for a New York concert; we saw that it works 15 Fine,

Robert (2007). Cosmopolitanism, London, Routledge, p. 33.

16 Ibid. 17 Moisi, Dominique (2009). De Geopolitiek van Emotie. Hoe culturen van angst, vernedering en hoop de wereld veranderen, Amsterdam, p. 145.

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both ways. Terrorists from Jeddah appeared to have unlimited access to airports in New Jersey. It was this realization that Ulrich Beck described in its basic form in his mid-eighties book Risikogesellschaft. Auf dem Weg in eine andere Moderne.18 Contrary to what the title seems to suggest, this book does not state that we live in an ever more risk-ridden society. The point is, Beck reasons, that we become more and more conscious of shared risks. This in its turn results in increasingly organizing our society around these risks. Many of these risks, we have come to realize, are largely self-induced. Modernity has not only brought us enormous advantages, it also increased the possible occurrence of large-scale accidents. This realization makes us sensitive to the achievements of our day. Beck’s “andere Moderne” is thus a reflexive modernity; a modernity that continually scrutinizes itself. The September 11 attacks showed the vulnerability of this modernity. In one crushing blow the crashing planes destroyed the nationwide misconception that modern day dangers could be successfully averted on the national level. The dangers of a high tech, state of the art society can only be understood and overcome globally. More than 20 years after the publication of Risikogesellschaft the risks have proved to be global, viz. climate change, SARS, avian influenza or bird flu, international terrorism. What is more, September 11 also triggered the universal realization that these risks were here to stay. We no longer live in a Risikogesellschaft – Risk Society – but in a Weltrisikogesellschaft – World Risk Society.19 Rather pleasantly surprised, Beck states that on the rebound this increasing global risk awareness guides us towards a cosmopolitan society; a society which searches global solutions for global issues, at the same time critically reflecting on our global modernity. But there is more. Beck’s cosmopolitan view not only focuses on concern for the self, i.e. the concern stemming from risk realization. He also expresses a wish for revival of a historic “European” form of cosmopolitanism. A global citizenship which shows concern for the other, for the immigrant and the stranger, whom we need to treat with respect and empathy for his being different.20 Ulrich Beck was a true pioneer in 1986. Perhaps international society was not ready to receive and notice his views. Not surprisingly, his Risikogesellschaft was not translated in English until a good 6 years after its first publication.21 In 1993, a year after Beck’s English translation, German essayist Hans Magnus Enzensberger wrote his Aussichten auf den Bürgerkrieg. Enzensberger noticed global chaos and situated it in a region where people were less likely to feel at risk: in Western Europe. He saw advancing terrorists and cunning Mafiosi. He introduced his readers to ruthless skinheads, drugs gangs, vandals and death squads. And it appeared 18 Beck,

Ulrich (1986). Risikogesellschaft. Auf dem Weg in eine andere Moderne. Frankfurt am Main. 19 Beck, Ulrich (2007).Weltrisikogesellschaft, Frankfurt am Main. 20 An argument soon subject to the criticism that Beck allowed himself to be led by his cosmopolitan ambition. That – in his desire to establish a globalist outlook – Beck seemed to have forgotten his critical analysis of the risk society. Martell, Luke (2008). ‘Beck’s Cosmopolitan Politics’, Contemporary Politics, 14, 2, 129–43. 21 Beck, Ulrich (1992). Risk Society: Towards a New Modernity, New Delhi.

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that they mainly came from abroad; from Eastern Europe, the United Kingdom and Latin America. Enzensberger not only saw German left-wing radicals celebrate their atavistic freedom in squatted properties. He also saw Polish car thieves hang around covered car parks, he saw Columbian drugs cartels ship their goods into Europe and he read how British office workers turned into football hooligans over the weekend.22 Enzensberger concluded that Europe – becoming ever more globalized – was entirely helpless against this “pandemonium of mindless violence, drugs tourism, football supporters, alcohol abuse, child porn, gunrunning, hypodermics, broken beer bottles, dildos and guns,” as Jaffe Vink – a Dutch fellow-publicist – described it several years later.23 What Enzensberger did for Europe, American journalist Robert Kaplan did for the United States. Kaplan traveled through West Africa when researching his article and (afterwards) his book The Coming Anarchy (1994). He predicted that what he saw in Liberia and Sierra Leone, would also become America’s fate: West Africa is becoming the symbol of worldwide demographic, environmental, and societal stress, in which criminal anarchy emerges as the real ‘strategic’ danger. Disease, overpopulation, unprovoked crime, scarcity of resources, refugee migrations, the increasing erosion of nation-states and international borders, and the empowerment of private armies, security firms, and international drug cartels are now most tellingly demonstrated through a West African prism. West Africa provides an appropriate introduction to the issues, often extremely unpleasant to discuss, that will soon confront our civilization. To remap the political earth the way it will be a few decades hence – as I intend to do in this article – I find I must begin with West Africa.24

Now that the story of the risk society had turned into a cruel and unwelcome reality, a growing need for a new perspective on security became more and more obvious. Whether or not Enzensberger and Kaplan were right, whether the insecurities and risks of our global society were indeed increasing, it hardly mattered. Beck’s global risk society had become a political issue, which no government could ignore any longer. Due to the fact that the threat no longer came from government armies (cf. the Cold War), but from private armies, security firms and international drugs cartels (Kaplan) and skinheads, vandals and death squads (Enzensberger) retreating to the safety of the state’s national borders was not enough. Even less so because now the front line was not made up of brave warriors but of ordinary people who were confronted with drugs, child porn and guns while at work or engaged in leisure activities. State Security was clearly no guarantee for the personal security of individuals, no matter where on the globe they found themselves. For the first time in modern history the national borders – sacrosanct since the Treaty of Westphalia in 1648 – were deemed less important than the safety of those living within these borders. Human security, argued Canadian Foreign Minister Lloyd Axworthy, one of its 22 Enzensberger,

Hans Magnus (1993). Aussichten auf den Bürgerkrieg, Frankfurt am Main. Jaffe (2001). Brief aan mijn Dochter. Amsterdam. 24 Kaplan, Robert (1994). ‘The Coming Anarchy’, The Atlantic Monthly, February.www. theatlantic.com/doc/199402/anarchy/2 (Accessed 20 August 2008). 23 Vink,

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most prominent advocates, “(It) is, in essence, an effort to construct a global society where the safety of the individual is at the centre of international priorities and a motivating force for international action.”25

3.4 Global Empathy and the Concern for the Other The global concern for the other became apparent in the wave of charity that rolled over the world after the December 2004 tsunami. Over 230 thousand lives were lost; one million were left in despair and shock. Their fate triggered a so far unheard of need to help others. Largely in that part of the world where people have access to the global media networks of CNN and BBC. The part with economic, technological and cultural ties: the global part. This part of the world donated no less than thirteen billion dollars in aid for the victims of the tsunami. Many traveled to Asia over their Christmas holidays to help tsunami victims. Skeptics were quick to point out that tsunami victims received these billions of dollars because of the rosy Christmas mood, the horrifyingly vivid images of the tsunami and the fact that many had visited the holiday destinations of Thailand and Sri Lanka. They were not entirely wrong. Even so, this generosity proves that not only our concern but also our need to help turns global. In an often-cited comment which he wrote shortly after the tsunami, British historian Timothy Garton Ash used the term moral globalization for this phenomenon.26 According to Ash we feel a moral obligation towards those who are less fortunate, regardless of where they find themselves on this globe. Ash turned out to be right sooner than he would have hoped. October 8, 2005: the earth moved in the Pakistani part of Kashmir. Eighty thousand lives were lost. In November, a month after the quake, almost six billion dollars in aid had been put aside. This time the money was not meant to help countries well known by tourists. And this time neither CNN nor BBC presented spectacular television coverage of this natural disaster. Not one of the victims was a white holidaymaker. All of the victims appeared on TV were bearded orthodox Muslims who lived in an inaccessible mountain area where few tourists ever set foot. Ash observed that “rich westerners increasingly identify with those living in other (far away) parts of the world, towards whom they feel a moral responsibility.” Again, he was probably right. Neither the global concern for the self nor the global concern for the other can be separated from the process of globalization. People from the south and people from the west will undeniably enter each others “worlds” and because of their mere presence they create the conditions to know the other(s) as fellow humans.

25 Lloyd Axworthy talks to Canada World View. http://www.dfait-maeci.gc.ca (Accessed on 14 August 2008) 26 Garton Ash, Timothy (2005). ‘What Will Be Left? This wave of global solidarity must not end in a detritus of broken promises’, The Guardian, 6 January.

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He who is conscious of the vulnerability of others – even if they live on the other side of the globe – is likely to commit himself to these others. American psychologist C. Daniel Batson proposed that empathy, the ability to share and understand another’s feelings and emotions, triggers altruism, the wish to support and aid the other. Batson calls this his “empathy – altruism hypothesis.”27 People who feel genuinely committed to others often feel the need to help them; especially when they have the means to do so. Even though they personally have no ties whatsoever with the person who caused the suffering, nor (do they have) any personal ties with the victim. Even possible drawbacks connected to this help are taken for granted. According to Daniel Batson, we have to amend our view of human motivation. The idea that people are solely motivated by personal gain is obsolete. The more people are able to understand another’s situation, the sooner they are prepared to lend support.28 Sociologists have not yet named the phenomenon, but it appears that we not only live in a global risk society, but also in a global care society. New Cosmopolitanism is only one of the terms used to describe this growing global care. We also come across: Global Citizens Movement, Ethical Globalization, Moral Cosmopolitanism, Cosmopolitan morality, Global Civil Society, Moral Globalization or New Cosmopolitan Ethics. Whatever the term, we can safely state that the phenomenon is triggered by the fact that we are increasingly aware of people on the other side of the globe. We are quite literally more and more “exposed” to the other. Not only to the danger he possesses, also to his cry for help and protection.29 The nerve center of these needs and desires is globalization itself. Or rather: the capitalist structure that enables modern globalization. Although an unrestricted orientation on market values can cause severe human suffering, at the same time the market acts as a giant global magnet, pulling people towards each other. The market works as intermediary, as a nexus, which triggers moral action. Sociologist Natan Sznaider claims that global capitalism draws more and more people into our circle of sympathy. “The market seems consistently to excite a politically significant mass of people to believe that cruelty and harm can and must be remedied. And, crucially, the market provides the means to do something about it. It brings people inside the circle not only of sympathy, but of effective sympathy.”30

27 Batson,

C. Daniel (2004). ‘Not All Self-Interest After All’. Economics of Empathy-Induced Altruism, Invited paper Kellogg School of Management, 17 October. 28 Batson et al., C. Daniel (1981). ‘Is Empathic Emotion a Source of Altruistic Motivation?’, Journal of Personality and Social Psychology, 40, 290–302. Toi et al M. (1982). ‘More Evidence that Empathy is a Source of Altruistic Motivation’, Journal of Personality and Social Psychology, 43, 281–292. 29 ‘And this is one of the key social foundations of cosmopolitanism. By moral cosmopolitanism, we mean the belief that our duty to ameliorate the suffering of individuals is more important than any artificial political barrier that may stand in our way.’ Levy, Daniel & Natan Sznaider (2004). ‘The Institutionalization of Cosmopolitan Morality: The Holocaust and human rights’, Journal of Human Rights, 3, 2, 143–157. 30 Ibid., 143–157.

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This contemporary combination of global fear and global care becomes apparent in the growing involvement of the west with the south. The most obvious developments occur on the part of a growing number of IGO’s (Intergovernmental Organizations) like UNHCR, the World Bank or the movement that led to the establishment of the International Criminal Court. Far more interesting than these largely invisible organizations, is western involvement that travels through newspapers, television and the Internet and thus reaches the public in their homes. Only public reactions to these global activities may give an indication of the extent to which this “new cosmopolitanism” finds fertile ground. And these public reactions exist. First, there is ethical consumerism. As one of the most visible expressions of ethical consumerism, Fair Trade has been reporting impressive growth figures, year after year. In 2006 Fair Trade showed a 42% growth worldwide.31 Second, there is public support for development aid. “There is concern among the public about aid effectiveness, but it exists alongside continued high support for aid.”32 A third reaction is widespread support for humanitarian interventions in conflict areas. Military intervention in war regions, intended to open the way for humanitarian aid, has the support of nearly 75% of the Dutch.33 Nearly 70% of all US citizens feel positive about sending troops to Africa in order to facilitate humanitarian military interventions when genocide occurs. Fourth, an increasing number of people support an INGO; an International Non-Governmental Organization, ranging from Abolition 2000 to the World Federation of Trade Unions. In 2008 there were approximately sixty thousand international organizations; in 1985 the UIA reported 20,000. In 1910 there were a mere 200.34 A fifth reaction is support for CSR. Corporate social responsibility is what corporations contribute to the humanitarian empire. When CSR came into existence in the seventies of the last century, companies felt the pressure of their stakeholders when it came to sustainable entrepreneurship. Towards the end of the twenty-first century CSR became a matter of course. Stuart Hart calls this sea change “From Obligation to Opportunity”; for companies new opportunities presented themselves with this concern for environment and human rights.35 A sixth phenomenon is the small charities. A rough estimate shows that a small country like the Netherlands has between ten and fifteen thousand of these small (aid) charities.36 Most of these private initiatives originated in the nineties and

31 http://www.fairtrade.org.uk. 32 Solignac

Lecomte, Henri-Bernard, Ida Mc Donnell, & Liam Wegimont (2003). Public Opinion and the Fight against Poverty, OECD, Paris. 33 NCDO . Burgers over de Ontwikkeling in de Wereld en het Nederlandse Buitenlandbeleid. Participatie NCDO Mentality-meting, 2005. 34 http://www.uia.be. 35 Hart, Stuart (2005). Capitalism at the Crossroads. The unlimited business opportunities in solving the most difficult problems, Upper Saddle River, NJ, Pearson Education Inc. 36 NCDO . Draagvlak voor Ontwikkelingssamenwerking binnen Nederland en de Rol van ncdo. Amsterdam 2005.

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numbers are still growing. Faced with dire needs of people on the other side of the globe, increasingly more people decide to do “just something.”37 The seventh public reaction is philanthropy. Private Americans donated 34.8 billion dollars in third world aid in 2006, set against 23.5 billion in official development aid by the US Government.38 Researchers predicted at the close of the twentieth century that philanthropic US aid donations will reach fifty billion a year in 2010. Although there is hardly any comparable research in Europe, expectations are that in Europe, too, the situation looks promising. We might find ourselves on the eve of a “Golden Age of Philanthropy.” People in developing countries can count on considerably more concern, money and protection in the future.39

3.5 Human Development New cosmopolitanism, a twentieth century phenomenon with a focus on human values which protect human dignity, has so far brought us two major concepts: Human Development and Human Security; two concepts that place the concern for the self and the concern for the other in a global perspective and aim to translate them into workable strategies. The first and most widely known concept is that of human development. This concept continually stresses the unacceptability of extreme poverty. Viewing the world in terms of human development started in the early eighties of the last century. Before that, it was customary to define development in terms of economic development, i.e. economic growth and national income. Human development left this economic perspective and began to focus on a much wider sense of development. Using the motto People First, human development pioneers stated that development first and foremost has to focus on actual people and on the potential of people to bring about actual change in their situation. The United Nations Development Program states on its website that human development stands for “creating an environment in which people can develop their full potential and lead productive, creative lives in accord with their needs and interests. People are the real wealth of nations. Development is thus about expanding the choices people have to lead lives that they value.”40 The human development concept was designed in 1980 by the Pakistani economist Mahbub ul Haq and has since been used by the UNDP in its annual Human Development Reports. Ul Haq’s human development vision is to a large

37 Vossen,

Mirjam (2007). Eerste Hulp bij Ontwikkelingswerk, Tilburg.

38 Index of Global Philanthropy 2008 Hudson Institute. Press release ‘Index of Global Philanthropy

shows innovative private giving transforming aid to developing countries’, 12 May 2008. http://www.hudson.org (Accessed 2 September 2008). 39 Havens, John J. & Schervish, Paul G. (1999). Millionaires and the Millennium: New Estimates of the Forthcoming Wealth Transfer and the Prospects for a Golden Age of Philanthropy, Boston. 40 UNDP. http://hdr.undp.org/en/humandev/ (Accessed 5 October 2010).

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extent based on the capabilities approach developed by Amartya Sen.41 This economist, who finds a supporter in philosopher Martha Nussbaum,42 believes development should not be focusing on e.g. economic growth or alleviation of hunger and disease; in fact it should augment people’s potential and thus enable them to develop themselves. Sen states: Capabilities are the range of things that people can do or be in life. The most basic capabilities for human development are to lead long and healthy lives, to be knowledgeable, to have access to the resources needed for a decent standard of living and to be able to participate in the life of the community. Without these, many choices are simply not available, and many opportunities in life remain inaccessible.43

The most tangible and widely known implementation of the human development concept is found in the Millennium Development Goals.44 Contrary to earlier economic programs, these goals embody the first development plan that is closely connected to new cosmopolitanism; this is mainly due to the practical approach of “Human Development Meets Result-Based Management.”45 It (the plan) also fits in with moral globalization, the willingness of those in the wealthy and safe north to dedicate themselves to less poverty and insecurity in the south. Many western nations use these goals to prioritize within their aid programs. The Netherlands, for instance, chose HIV/AIDS, water, environment and reproductive health as main objectives of their aid policy, not arbitrarily but mainly because they contribute to the Millennium Goals.46 The results, and – no less important – the lack of results can be found in the Human Development Index. This HDI, which was developed in 1990, compares three sets of data, viz. life expectancy, education and purchasing power and translates them into a global ranking of 177 nations (out of a total of 192). These nations can then be subdivided in three categories: nations showing (very) high human development, medium human development or low human development. In this last category we find no less than 25 nations that – without exception – are located on the African continent (HDI 2008). With a minor reservation, it is safe to state that most people in these 25 nations must be categorized as belonging to the “absolute poor.” Efforts to stimulate human development should therefore first and foremost be directed at these absolute poor, as is suggested by advocates of the

41 Sen,

Amartya (1999). Development as Freedom, Oxford. Martha C. & Amartya Sen (eds.) (1993). The Quality of Life, Oxford, Clarendon

42 Nussbaum,

Press. 43 http://hdr.undp.org/en/humandev/ (Accessed 3 January 2009). 44 Human Development Report, 2003, Millennium Development Goals: A Compact Among Nations to End Human Poverty, New York. 45 Hulme, David (2007). The Making of the Millennium Development Goals: Human Development Meets Results-Based Management in an Imperfect World, Brooks World Poverty Institute BWPI Working Paper, 16 December. 46 Policy document Foreign Aid 2007–2011 Dutch Ministry of Foreign Affairs. http://www. minbuza.nl (Accessed 11 January 2009).

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Millennium Development Goals. These efforts should certainly not be directed at those inhabiting the remaining 152 nations. Accelerating progress in human development and eradicating the worst forms of human poverty are within our reach, despite challenges and setbacks. We know what to do. And the world has the resources needed to do it. Success is now to be found in strengthening partnerships, building political momentum for reform and pledging strong commitments for action followed by real action.47

The realization of the Human Development Index by means of the Millennium Goals is widely supported, by the United States, countries in the EU and Japan, but also by such institutions as the World Bank, the IMF and the OECD. Through these Millennium Goals the human development concept also attracts a lot of support and attention from the general public.48 The June 2005 Live 8 concerts – Make Poverty History – were aired by 182 television channels and 2000 radio stations. The broadcasters stated they reached three billion people.49

3.6 Human Security Not only human development but also human security is closely connected to the human values of new cosmopolitanism. Human security may even be more closely connected, although the concept is relatively new and not as widely known as human development. In a way human security is both a further specialization and an extension of human development. It was Mahbub ul Haq, the designer of the Human Development Index, who placed human security on the global agenda. In the 1994 Human Development Report New Dimensions in Human Security50 he again adheres to the People First concept. However, he now argues that realistic options for people to actively change their situations should also include a security component. Where human development focuses exclusively on a long and healthy life, on education and access to health care, human security also mentions violation of human rights and vulnerability caused by crime and political violence. The most widely accepted and discussed concept of human security51 includes seven subcategories: 1. Economic security, 2. Food security, 3. Health security, 4. Environmental security, 5. Personal security, 6. Community security and 7. Political security. The 47 Human Development Report 1998, Chapter 1. The state of human development, New York, p. 37. 48 Although

in Europe the term Millennium Development Goals is known to only 18% of the population. Only 4% know exactly what they are. Ergo, 82% of all Europeans have no notion of the MDGs. When asked, however, most Europeans do fully support the goals. The European Commission, Europeans and Development Aid, Report, June 2007. 49 http://www.live8live.com. 50 Human Development Report, 1994, New Dimensions in Human Security, http://hdr.undp.org/ en/reports/global/hdr1994/ (Accessed 5 October 2010). 51 It is this – probably most widely supported – model of Human Security that will be elaborated on in this paper. For a clear overview of other definitions, go to wikipedia. http://en.wikipedia.org/wiki/Human_security (Accessed 5 October 2010).

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first four are well-known to most, as they are included verbatim in the Millennium Development Goals. Inclusion of the last three lends human security a considerably more comprehensive scope than human development. It rightly focuses on those areas that have been unjustly neglected by the aid industry, such as personal, communal and political security. We know, after all, that extreme poverty is not limited to un(der) employment, hunger, disease and an exhausted environment. Large-scale research among the most severely deprived (Voices of the Poor project in 200052 ) shows that the extreme poor experience lack of security as an immense problem. Moreover, a large majority state that they feel a lot less safe than during the late eighties of the last century. This lack of security combined with fear results in a narrowing chasm between the poor of the south and those of the wealthy west, who – due to the dynamics of globalization – feel increasingly less secure, as Letschert and Van Dijk rightly state in the first chapter of this book. By attaching this much importance to the security aspect, human security – more powerfully than human development – represents the new cosmopolitan ambition or dream as some would have it53 ; that the Good Life must be within everyone’s reach. “Everyone” includes not only the slum dweller in Kinshasa, but also the single mother in the notoriously criminal Watts District in Los Angeles and the business man in his Kyoto gated community. It is an all-encompassing claim, made more explicit by the authors of the 1994 Human Development Report. Thus, they state as follows: (1) Human security is a universal concern. It is relevant to people everywhere in the world. (2) The seven components are interdependent and interwoven at the global level. (3) Human Security focuses on prevention rather than intervention. (4) Human Security focuses on people rather than nations.54 This broad concept of human security makes for an even more ambitious goal than that of its already ambitious predecessor human development. Human Security is “a child who did not die, a disease that did not spread, an ethnic tension that did not explode, a dissident who was not silenced, a human spirit that was not crushed.”55 The concept is not only more ambitious because it includes a rather high level of international relations, human rights and crime prevention. Its main asset is that it has extended its territory to the global level. Where human development had restricted its focus to the one and a half billion extremely poor in the south, human security addresses all six billion people worldwide. Not only the slum dweller in poverty stricken Zambia may count on the protection of human security, but also the well-to-do citizen of the Netherlands. Contrary to human development, 52 World

Bank, Voices of the Poor: Can Anyone Hear Us? Washington, 2000.

53 ‘A humane world where people can live in security and dignity, free from poverty and despair, is

still a dream for many and should be enjoyed by all.’ Human Security Network, 1999, A Perspective on Human Security. Chairman’s Summary 1st Ministerial Meeting of the Human Security Network, Lysøen, Norway, 20 May. http://www.humansecuritynetwork.org/menu-e.php (Accessed on 12 August 2008). 54 Human Development Report, 1994, New Dimensions in Human Security, pp. 23–24. 55 Ul Haq, Mahbub (1995). Reflections on Human Development, Oxford, p.116.

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human security does not place the major safety threats a priori in the south. The architects of human security state that in a globalized world, each individual is confronted with severe instances of insecurity; those in the west no less than those in the south. Therefore, New Dimensions in Human Security (1994) should not be seen as an isolated publication of its time. In the same decennium, books like Enzensberger’s Aussichten auf den Bürgerkrieg (1993), Kaplan’s The Coming Anarchy (1994) and the American translation of Beck’s Risk Society (1992) were published. The seven categories of global insecurity mentioned in the report, intertwine the car park fears of Enzenberger with Kaplan’s African hell and Beck’s growing risk consciousness. Not only does human security break with the former distinction of the secure north versus the insecure south, it also refuses to rigidly judge in terms of perpetrators and victims. In a globalized society also the rich and powerful may become victims. Similarly the poor may turn into perpetrators. Both the 2001 attacks and the 2004 tsunami violently proved this analysis of the human security concept. Suddenly not only the persecuted and detained leader of the Myanmar opposition or the HIV infected Zambian appeared under threat. Also the successful American business man who unwittingly entered an – Afghan made – flying bomb on 11 September 2001 suddenly became part of the World Risk Society. Not only the poor Thai fisherman on his way to his small vessel, but also the wealthy Swedish tourist lounging in this beach chair after a rich Christmas breakfast, drowned in an immense wall of water in 2004. Where the human development concept finds its roots in global empathy for the poor regions of the world, the human security concept is based on the realization that – in a global society like ours – one’s security depends increasingly on the security of the other.56 He who expects to find security in Oslo or Taipei must also ensure it in Tbilisi or Zimbabwe. Global security is only as strong as its weakest link. Human security intertwines the fate of the Kinshasa slum dweller with that of an Amsterdam millionaire. “Insecurity can no longer be contained – violence has a tendency to cross borders,” writes Mary Kaldor. “Not in the form of attacks by foreign regimes but through terrorism, organized crime or extreme ideologies.”57 “Human Security is not a problem confined only to the developing world,” agree Tadjbakhsh and Chenoy. And the North does not have all the ‘solutions’ for it through interventions, financial assistance or responsibility to protect. The concept easily extends itself to Western societies

56 ‘Security

threats emerge as a direct consequence of dysfunctional regimes in their multiple, though overlapping, sub-systemic dimensions. The reproduction and expansion of mutual vulnerabilities (and insecurity). At both the micro and macro levels, expresses itself through closely related and interconnected thrusts. The same is the case with its opposite – security.’ Nef, Jorge 1999, Human Security and Mutual Vulnerability. The Global Political Economy of Development and Underdevelopment (2nd edition), Canada. Available on the internet: www.idrc.ca/en/ev-9383201-1-DO_TOPIC.html (Accessed 19 August 2008). 57 Kaldor, Mary (2007). Human Security, p. 196.

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If new cosmopolitanism is characterized by two phenomena – the concern for the self and the concern for the other – human security as a concept that at present correlates strongest with new cosmopolitanism. “Human Security concerns transcend the traditional statist confines of national security and tend to focus on elimination or prevention of the causes of threats to human security.” Moreover, where “state security” had been exclusive since the seventeenth century, mainly focusing on the own society, human security is inclusive and universal.59 “Basically, it is the cosmopolitan alternative.”60

3.7 Human Security and Cosmopolitanism Expressly because of this correlation with new cosmopolitanism human security adopts some of its characteristics. In a similar way to the characterization of new cosmopolitanism as a “normative perspective for viewing the potentialities and necessities of our age than as an objective characterization of the age itself”,61 such a view could also hold true for human security. Human security as a magnetic field which organizes our chain of thought on security and poverty in a global world, rather than leading to immediate priority setting or action agendas. In this it clearly differs from the human development concept which led to both the Millennium Development Goals and the Human Development Index. While the intellectual Human Development Concept materialized in the Millennium Development Goals, it is not inconceivable that human security will remain an intellectual concept lacking the potential to create a toolbox for implementing security on a global scale. In that case, Human Security will continue describing an actually occurring development in general terms and providing it with general characteristics. It is precisely that what has been happening since the launch of human security in 1994. Over the past 15 years it has mainly been the subject of political and intellectual discourse. Fierce polemics developed between those researchers and policy makers who denounced the concept for its wide scope, and those who advocated it for precisely that reason, its wide scope and universal qualities. Shahrbanou Tadjbakhsh and Anuradha M. Chenoy’s comprehensive work

58 Tadjbakhsh,

Shahrbanou & Anuradha M. Chenoy (2007). Human Security. Concepts and Implications, New York, p. 243. 59 Hayden, Patrick (2005). Cosmopolitan Global Politics. The pursuit of a humane world order, Burlington, p. 72. 60 Johnson, Alan (2007). New Wars and Human Security: An Interview with Mary Kaldor, London. http://www.democratiya.com/review.asp?reviews_id=117 (Accessed 5 October 2010). 61 Ibid.

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on human security is actually an enormous attempt to define the concept and to redesign it into a manageable model for research and policymaking. To that effect it makes use of a large number of charts, diagrams and graphs.62 Thus, Tadjbakhsh and Chenoy cite no less than 21 academic definitions of human security. The various ways in which national governments address human security is ranging from a narrow minimalist variety aimed at military protection to a maximum variety aimed at creating dignity. One critic who continually surfaces in the polemics with only one article is Roland Paris. He jogs the debate in autumn 2001 by asking (himself) whether human security is a paradigm shift or merely hot air. He states it could be a paradigm shift because it has actually brought about some changes. Signs of a possible paradigm shift can – according to Paris and others – be found in the Mine Ban Treaty of 1997 and the lobby that would eventually lead to the International Criminal Court in 2002. In the end Paris chooses the hot air qualification because the concept of human security remains elusive where it comes to clearly defining it. “The term appears to be slippery by design,” he writes and he believes there are forces at work. Paris states that the human security concept is to a large extent embraced by a conglomerate of so called “middle power states,” aid organizations and NGOs that would soon crumble if the concept were to be clearly defined. In 2005 Shahrbanou Tadjbakhsh summarizes the then current debate in “seven challenging questions.”63 Should these seven questions remain unanswered, the concept enters the danger zone and may not survive. Tadjbakhsh, too, believes that the major challenge is the matter of defining the concept. “Without a consensus on the definition of human security, it will be difficult to implement and decide on a common human security program. Today, there is an agreement that human security should be taken from a people-centered more than a state-centered approach, but as mentioned above, the definition or scope of human security is still vague.” She also raises the question: who is ultimately responsible for the implementation of human security? And, which priorities it should set; which threats and insecurities deserve more attention than others? “Once again this also raises the issue of the scope of security.” The answers to such questions will most likely not be found without a proper, i.e. clear definition of human security.

3.8 Differenzierungsverlust This lack of a clear definition of human security and, therefore, the lack of a carefully drafted list of priorities and an action agenda, has obvious implications. Among

62 Tadjbakhsh,

Shahrbanou & Anuradha M. Chenoy (2007). Human Security. Concepts and Implications, New York. 63 Tadjbakhsh, Shahrbanou (2005). Human Security: The Seven Challenges of Operationalizing the Concept. ‘Human Security: 60 min to Convince’, UNESCO, 13, 14-September-2005, September Paris, France. http://www.peacecenter.sciences-po.fr (Accessed 9 January 2009).

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other things, it will lead to views on insecurity of individuals worldwide, without taking into consideration the difference in level of insecurity of e.g. a random entrepreneur in a wealthy Canadian suburb and an equally random entrepreneur in a Brazilian favela severely ravaged by gang wars. Similarly, it may lead to views in which obesity in Australia may appear to be an equally serious form of insecurity as hunger in Ethiopia. A concrete example of this “indifference” towards insecurity levels is found in the very report that formed the basis of the entire concept: the Human Development Report, 1994, New Directions in Human Security.64 Although the authors clearly intend to stress the extreme conditions under which many people have to live, it barely differentiates between the most diverse forms of insecurity. To illustrate this: in one and the same paragraph the authors state “In both the United States and the European Union nearly 15% of the people live below the poverty line (. . .) But the most acute problems are in the developing countries where more than a third of the people live below poverty line.”65 Of course, this statement holds true, but it entirely ignores the fact that the poverty of an unemployed teacher in Denmark can hardly be compared to that of a pavement dweller in Bangladesh. A second example taken from the Human Development Report, 1994 is lack of security for women. Among the worst personal threats are those to women. In no society are women secure or treated equally to men. Personal insecurity shadows them from cradle to grave. In the household, they are the last to eat. At school, they are the last to be educated. At work, they are the last to be hired and the first to be fired. And from childhood through adulthood, they are abused because of their gender.66

Here, again, there is no differentiation between e.g. countries like Ukraine or Pakistan where women are notoriously in danger of being (trafficked and) forced to work as prostitutes, or in danger of becoming victims of honour murders, and countries like Norway or Canada where the differences between men and women are practically negligible. The same problem is found in a second basic document: Human Security Now. Protecting and empowering people67 of 2003, a report by the Commission on Human Security which was initiated by Kofi Annan. This report – of which the authors’ commitment to the people who are absolute insecure is not questioned in any way – hardly differentiates between relative and absolute insecurity. Thus, in one and the same paragraph it unites malnutrition in Africa with unemployment in the west. “In Sub-Saharan Africa, death by starvation or malnutrition is at the horizon of everyday life, a threat that erodes the social fabric. In developed countries,

64 Human

Development Report, 1994, New Dimensions in Human Security. http://hdr.undp.org/ en/reports/global/hdr1994/ (Accessed 5 October 2010). 65 Ibid., p. 26. 66 Ibid., p. 31. 67 Commission on Human Security, Human Security Now. Protecting and Empowering People, New York, 2003.

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continuous unemployment means not only loss of income but also a sense of total failure and exclusion from society.”68 Nor does Human Security Now differentiate between countries where HIV/AIDS has become a chronic but controllable disease with hardly any impact on health statistics, and those countries where the disease leaves a path of destruction causing death and immense misery. “The HIV/AIDS epidemic alone has made it clear that there is no place in the world from which a country is disconnected. Increased international cooperation will be required for effective monitoring, control and eradication of infectious diseases, to prevent further outbreaks and decrease transmission both within and between countries.”69 Strictly seen, all these observations are correct – AIDS knows no borders, hunger and unemployment lead to social isolation, sexual violence occurs in every nation – but they do suffer from Differenzierungsverlust. They suffer from the inability to see the differences beyond the similarities, usually the difference between life and death. Similarities and differences can only be revealed by means of explicit normative criteria. Only those criteria can decide at what moment an individual’s insecurity becomes destructive enough to be unacceptable. Only then will it be possible to define extreme violence in the west, in Europe and the United States of America. Only then will it be possible to explain why members of a Hungarian Roma clan need more protection than a noble family in Ghana. Or why the poverty of the American unemployed and that of Pakistani workers in Dubai deserve equal attention. This conclusion is also reached by Sharbanou Tadjbakhsh and Anuradha M. Chenoy at the end of their significant book: “The most urgent research agenda, in our opinion, is the study of Human Security indicators and by extension the identification of a threshold of insecurity below which life is unbearable to human beings and should not be tolerated by those who can do something about it.”70

3.9 The Importance of an Index Would it be possible to view global insecurity in the same way we view global poverty? Would it be possible to think in terms of absolute and relative insecurity, following the example of absolute and relative poverty? Those who speak about poverty, about human underdevelopment, do so based on this very difference. Terms like absolute and relative poverty are not only clearly defined by the World Bank. They are also firmly grounded in our social consciousness. For instance, by the UNDP campaign introducing the first Millennium Development Goal: to “eradicate extreme poverty and hunger”71 and by public initiatives through social movements,

68 Ibid.,

p. 74. p. 98. 70 Tadjbakhsh, Shahrbanou & Anuradha M. Chenoy (2007). Human Security. Concepts and Implications, New York, p. 241. 71 http://www.undp.org/mdg/goal1.shtml (Accessed 5 October 2010). 69 Ibid.,

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globally managed by the Global Call to Action Against Poverty.72 Moreover, the status quo of Human Development is reported in the Human Development Index and conceptualized in the Millennium Development Goals. Absolute poverty is a fact of life for 1.4 billion people globally. They lack almost every conceivable commodity: clean drinking water, health care, education, a blanket for the night and a roof over their heads. The only certainty they have, is the certainty of a dead-end life and an early death. Their poverty is absolute, because there is no way anyone could be poorer than they are. The absolute poor find themselves at the very bottom of human existence. Or: their human dignity is in the balance. Their poverty is inacceptable to all human beings. The standard to measure absolute or extreme poverty as applied by the World Bank is a purchasing power of less than $1.25 per day.73 This does not even buy enough food to provide minimum nourishment for the body. It means that 80% of the extremely poor go hungry every single day. Every year eight million people die simply because they cannot afford to live. The 1.4 billion extremely poor concentrated on the southern half of the globe, are perishing. In contrast, the top half of the income pyramid is represented by 3.3 billion people who do have access to proper food. Their children go to primary and secondary schools. They can count on health care and three meals a day. They have electricity, running water and heating; they use public transport or drive their own cars. Of these 3.3 billion approximately 800 million may count themselves among the absolute rich. Here too, poverty occurs; although a different kind of poverty. This form of poverty is not only less extreme, it is “relative.” Relative in the sense of “less,” but also in the sense of “compared to the average income” of the people of the rich country in question. According to the standards of the OECD – the organization of the thirty richest countries – a person is relatively poor when he has less than 50% of the average income in his country. Based on this standard, the total number of poor in the European Union fluctuates around 10%.74 In the United States – although by a different method – the official number of poor is 13%.75 Nevertheless, the average

72 http://www.whiteband.org. 73 The absolute poverty standard of $1.25 per day was set in August 2008, following the $1 per day

standard of 1985. The sum represents a person’s purchasing power. It allows us to make purchasing power comparisons between countries, the so-called purchasing power parity. Surviving on $1.25 per day means that you have a daily consumption of the equivalent you can buy for this sum in the country of the dollar, the United States. The produce generated by the people in question e.g. crops of rice or corn is included in this $1.25. It means that the actual income of people living on $1.25 (or less) is significantly less. 74 For the poverty definition of the OECD: Förster, Michael & Marco Mira d’Ercole (2005). ‘Tackling Poverty’, OECD Observer, March. http://www.oecdobserver.org/news/fullstory.php/ aid/1586/Tackling_poverty.html (Accessed on 16 September 2008). 75 For the poverty definition applied by the United States: U.S. Department of Health & Human Services. The 2007 HSS Poverty Guidelines. http://aspe.hhs.gov/poverty (Accessed on 16 September 2008).

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poor American family has a car, their own home, air conditioning, a fridge, central heating, a washing machine and a dryer, a microwave, two cable or satellite televisions, a video player and a dvd player.76 Can and should we make a similar distinction with respect to the insecurity of individual world citizens? That is, with respect to their human insecurity? Is relative insecurity in that case insecurity in a society which is highly capable of curbing these insecurities? And, following this line of thought is absolute insecurity that of communities entirely lacking control over potential calamities? Where besides poverty, also lurking criminals, corrupt governments or sudden natural disasters claim their victims? Where – in short – human dignity hangs in the balance? There is currently no comparative standard to define absolute and relative insecurity. That a distinction exists, as is the case with poverty, is a valid observation. Absolute insecurity reigns unmistakably in countries at war. Or in areas where the level of insecurity is such that, although not at war in the strict sense, a situation exists as if this were the case. A world devoid of any sense of security or protection, in which people are subjected to danger all the time, and in which each disaster is a matter of life and death. If we choose to make this distinction between absolute and relative, we need an explicit standard, a criterion similar to the $1.25 per day standard applied by the World Bank, or the rather more qualitative definition of poverty used by the Human Development Index. In our search for an instrument to interpret absolute and relative insecurity, a Human Security Index would definitely be of help. An HSI, modeled on the Human Development Index, the HDI. A similar index for human security would not only bring conceptual clarity, it could also produce a list of priorities as a basis for policy making. Although we have been using the term human security since 1948,77 60 years later we still have to do without a Human Security Index to register and report on the security of people around the world. The strong appeal of Ulrich Beck and Natan Sznaider on social scientists to transform their nationalist agendas into cosmopolitan agendas,78 is increasingly finding fertile ground. However, for human security this has had little result. It must be said that some initiatives to arrive at a comprehensive index were taken, but each time these attempts either fell through or petered out.79

76 ‘The

mountain man and the surgeon. Reflections on relative poverty in North America and Africa’, The Economist, 24 December 2005. 77 MacFarlane, S. Neil & Yuen Foong Khong (2006). Human Security and the UN. A Critical History, Bloomington. 78 Beck, Ulrich, & Natan Sznaider (2006). ‘Unpacking Cosmopolitanism for the Social Sciences: A research agenda’, The British Journal of Sociology, 57, 1. 79 Suggestions for a Human Security Index based on the broad concept of 1994 were made by (among others) the following academics: Bajpai, Kanti (2001). Human Security: Concept and Measurement. http://www.nd.edu/~krocinst/ocpapers/op_19_1.PDF (Accessed 16 September 2008). King, Gary and Christopher Murray (2001). ‘Rethinking HS’, Political Science Quarterly, 2001–2002 116(4) http://gking.harvard.edu/files/hs.pdf (Accessed 19 September 2008). Booysen,

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The fact that human security still has no index has its reasons. First of all, a large number of methodological criteria are impeding the development of an HSI. Data of many – mainly insecure – countries are not available. If by chance, they do exist, the information in these datasets is hard to compare. Moreover, it is notoriously complex to define the criteria necessary for comparison. For instance, how do you compare obesity in the US to aids in Zimbabwe, or “mindless violence” in the Netherlands to piracy in Somalia? Thus, it remains unclear what an HSI should reveal in a serious attempt to answer questions like these. Many variables will have to be “ignored,” which immediately raises the question which elements the HSI is unintentionally covering up. “Even if it were possible to create a composite human security index, it is not clear that doing so would be desirable,” Andrew Mack states in his Human Security Report 2005. “While composite indices have distinct advantages, simplicity also has a downside. Composite indices can conceal more information than they convey.”80 There are also numerous political objections. A global Human Security Index will by definition rank some countries at the top and some at the bottom of the index. A country at the bottom is apparently not capable of protecting its people, assuming the government itself is not an immediate threat to its subjects. Due to increasing international consensus about the sovereignty of a state being directly related to the ability to protect its people, a low HSI ranking may constitute an invitation to foreign powers to step in and take over the government. This happened in Kosovo, East Timor, Haiti, Sierra Leone, Afghanistan and Iraq. On the other hand, a low ranking on the index might be desirable, because it opens ways to apply for aid worldwide. Lastly, an HSI can have adverse diplomatic consequences when designed or adopted by an organization like the UN. “Any ranking exercise that reflects badly on governments will generate both resistance and resentment – the reason why UN agencies have long been discouraged from creating a Human Rights Index.”81 These are important objections, but no matter how relevant they are, at the same time they do little to reassure those who are seriously concerned about the insecurity of billions of people. In the end, the absolute insecurity of real people worldwide will have to be researched, measured and indexed. And again, in the end we will have to combat this absolute insecurity as fiercely as we are combating extreme poverty today. Ultimately, human security will have to be realized by defining one or more concrete goals similar to, or perhaps as part of, the Millennium Development Goals. The remaining question is: how?

Frikkie (2002). ‘The Extent of and Explanations for International Disparities in Human Security’, Journal of Human Development, 3, 2, 273–300. A well-documented outline of the debate on Human Security and a Human Security Index is given by Tadjbakhsh, Shahrbanou, & Anuradha M. Chenoy (2007). Human Security. Concepts and Implications, New York, pp. 241–242. 80 Human Security Report. Creating a human security index? pp. 90–91. 81 Mack, Andrew (2002). ‘Report on the Feasibility of Creating an Annual Human Security Report’. Quoted by Tadjbakhsh, Shahrbanou, & Anuradha M. Chenoy (2007). Human Security. Concepts and Implications, New York, p. 241.

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3.10 Back to New Cosmopolitanism For a possible answer in general terms we return to the intellectual source of human security: new cosmopolitanism. That new mindset for a global era which aims to connect universal human dignity with mild patriotism, and which connects the concern for the self with the concern for the other. A philosophy that includes both global fear and global empathy in its considerations. No matter how diversely this new cosmopolitanism will develop in future, there is one common starting point: it starts with the dignity of all people and the human values that protect this dignity, and then it proceeds to fuse the global risk society with the global care society. Those who see new cosmopolitanism as a directional world view, e.g. because they support Robert Fine’s proposition (we do not live in a cosmopolitan age but we do live in an age of cosmopolitanism), will soon wonder why risk and care are still thought of as separate entities. Why do human development and human security still occur separately rather than walking side by side in unity or merging into one comprehensive concept? Why do we need two paradigms, two research agendas, two publication channels, two lobbies towards politicians? Why this competition of academic research, public attention, political influence and – in the end – the furnishing of funds? Why are there no joint research agenda, one public and political lobby and central planning in allocation of funds? Or is this a premature question? Are there by chance initiatives to arrange an “engagement”? Yes, there are.

3.10.1 Development and Security Are Coming Together In 1995 it was possible for Mahbub ul Haq, architect of the Human Development Index, to state: The human development paradigm is the most holistic development model that exists today. It embraces every development issue, including economic growth, social investment, people’s empowerment, provision of basic needs and social safety nets, political and cultural freedoms and all other aspects of people’s lives. It is neither narrowly technocratic nor overly philosophical. It is a practical reflection of life itself.82

Ul Haq wrote down his words in 1994, in the rather optimistic era after the fall of the Berlin Wall. Although Hans Magnus Enzensberger and Robert Kaplan’s prophecies of doom were already lining the shelves of the bookstores and the genocidaires of Rwanda started killing nearly a million people, we were still ignorant of the mass murders of Srebrenica, the bloodshed in Congo and Darfur, the attacks on New York, Madrid and London and the most recent Iraq and Afghan wars. All these conflicts clearly proved that the human development concept was showing an obvious security void. It simply underexposed crime, terrorism, war, political 82 Ul Haq, Mahbub (1995). ‘The Human Development Paradigm’, in Reflections on Human Development, Oxford University Press, p. 23.

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violence and instability. Public opinion seems to support this feeling. Public opinion polling using the Eurobarometer shows that, when Europeans are asked to mention the three most urgent measures national governments should implement to reach the Millennium Goals, 20–49% of all Europeans mention measures already covered by the MDGs and 65% supports the measure “Reduce the possibility of armed conflict and war.”83 Fifteen years after 1995 this security void in human development has reached the entire scope of the discourse. In current discussions on the future of the Millennium Development Goals (to be realized in 2015) human security aspects are a given fact. This focus on security has not exclusively been initiated by the impacting conflicts of the past 15 years. For instance, the Voices of the Poor project of the World Bank showed without a shadow of a doubt that the poor are generally more worried about their current insecurity than about their structural poverty. Also, more data became available on the intrinsic link between extreme poverty and violent conflict. The poorer the household is at the start of the conflict, the higher is the probability of the household participating and supporting an armed group. The higher the risk of violence, the higher is the probability of the household participating and supporting armed groups. The interaction between these two variables varies with the conflict itself and is defined by the direct and indirect effects of conflict-induced violence on the economic behavior and decisions of households in combat areas.84

In other words, human security was already merging with human development. And now human development in its turn is fusing with human security. Moreover, human security can no longer be ignored in the debate on the post 2015 format of the Millennium Development Goals. “If the eradication of absolute poverty remains the centerpiece, many of the present areas would remain relevant, but issues such as empowerment, rights, security/fragile situations, vulnerability, human security and access to infrastructure services, would need to be debated,”85 is the opinion of Richard Manning, the influential former chairman of the OECD’s Development Assistance Committee (DAC). In the same way the human security concept drafted by Mahbub ul Haq included four human development aspects – viz. Economic security, Food security, Health security and Environmental security – potential post 2015 Millennium Development Goals will no doubt include aspects that are so far mainly characteristic of human security – viz. Personal security, Community security and Political security. Human security strategists acknowledged as early as 1994 that development is a prerequisite for a safe society; human development strategists now realize that development will never exist without a sufficient degree of security.86 83 The

European Commission 2005, Attitudes towards Development Aid 2004, February, p. 22.

84 Justino, Patricia (2009). ‘Poverty and Violent Conflict: A Micro-Level Perspective on the Causes

and Duration of Warfare’, Journal of Peace Research, 46, 3, 315–333. Richard (2009). ‘Using Indicators to Encourage Development? Lessons from the Millennium Development Goals’, DIIS Report 2009:01, February, p. 67. 86 Ball, Nicole (2001). Report of a conference organized by the Programme for Strategic and International Studies, Graduate Institute of International Studies, Geneva, 8–9 March. 85 Manning,

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3.10.2 The North-South Divide Is Challenged Not only are development and security concepts merging gradually, we also see the traditional relations between north and south being challenged. The current Millennium Development Goals still mention a massive chasm. The north is rich, secure and powerful; the south is poor, insecure and weak. It is therefore the duty of the north – the white man’s burden87 – to support the south in its development. This view is eroding. In many poor countries excessively rich enclaves develop; at the same time there is increasing poverty in specific groups in the rich countries. The Bentleys and Rolls Royce’s in the Indian metropolis of Mumbai make a glaring contrast to the extreme poverty of the Dharavi slum dwellers, but also to the poverty of the clients of Dutch food banks. The working poor in the US trailer parks are not only far removed from those living in New York’s residential areas around Central Park, but also from the Nigerian oil millionaires in Lagos. Not only the chasm between the poor south and the wealthy north is challenged; the gap between the insecure south and the secure north, too, seems to be less clearly defined than had been assumed. September 11 and the attacks in London and Madrid once and for all ended this dichotomy. Twenty Middle Eastern terrorists were capable of destroying the commercial heart of the world (the WTC), to attack their military nerves centre the Pentagon and – in the end – to narrowly miss the political HQ of the world’s most powerful nation, the White House. On 9/11 the north was proved no less vulnerable or insecure than the south. A similar situation applies to the impotence of the south and the power of the north. Eight years after the invasion of Afghanistan, launched by superpower US and a coalition of the willing in order to arrest Al Qaeda leader Osama bin Laden and to curb the powers of the Taliban, we have to conclude that neither goal has been realized. Sixty-five years ago the United States needed only 2 years to free both Europe and Asia of fascism; in today’s Afghanistan a combined action of the armies of the north – in progress for 8 years at this point in time – has so far not resulted in subjecting the irregular forces of the Taliban. In the past decennium relations between the west and the rest have changed to such an extent that Dominique Moisi describes the United States and Europe as the “cultures of fear” in his Geopolitics of Emotion. It is excessive fear replacing justified fear. A kind of fear that entirely focuses on lost superiority and the arrival of the Other, the outsider who has come to claim what is rightfully his. The dreams of those who were scorned are the nightmares of those who scorned but can no longer do so. In Asia, however – until the late eighties part of the so-called third world – a culture of hope reigns. The same holds true for Africa where, according to Moisi, hope is growing, albeit at the same rate as despair.88

87 Easterly, William (2006). The White Man’s Burden. Why the West’s Efforts to Aid the Rest Have Done So Much Ill and So Little Good, Penguin. 88 Moisi, Dominique (2009). The Geopolitics of Emotion, New York, Doubleday Publishing.

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This idea of reconsidering the strict division of north and south has not exclusively been set in motion by the turbulent developments of the past 15 years. Within the scope of the human development discourse the division is also criticized for its internal criteria. In his widely discussed article “From Universal Values to Millennium Development Goals: Lost in Translation”89 Ashwani Saith explains that the human development concept originally possessed a universal scope. A scope that was narrowed down to represent the Third World, during the process of defining the Millennium Development Goals. According to Saith the starting point has been and will be the universal human values. These were subsequently reduced to human development dimensions and ultimately translated into well-defined Millennium Development Goals and equally well-defined criteria of the Human Development Index. In this process of translation and transformation America and Europe were lost, implying that on these continents human values were already in force. In the MDG concept the Third World and more specifically Africa, is presented as an enclave of poverty: Even though it professes to be propelled by shared universal values, the entire MDG scaffolding and accompanying text is insufficiently global in its approach. It tends to ghettoize the problem of development and locates it firmly in the third world – as if development is fundamentally and exclusively an issue of absolute levels of living. What happened to poverty and deprivation in the advanced economies? Are they to be silenced?90

Saith’s recommendation is obvious: we have to leave the assumption that we decide their agenda. The human development concept – like human security – has to reconnect with the universal human values from which it once originated; it has to reconnect with the basic ideas of cosmopolitanism. This view is shared by the United Nations. In a 2008 report on the MDGs the Secretary-General is quite explicit on this subject. “The MDG’s are universal: they are intended to embrace not only all countries but also all people within each country. (. . .) They encompass universally accepted human values and rights, such as freedom from hunger, the right to basic education, the right to health and a responsibility to future generations.”91 And in a recent preview on the post 2015 format of the Millennium Development Goals, former OECD/DAC chairman Richard Manning, too, argues in favour of a new, cosmopolitan one-world approach: There is a prima facie case for a further set of indicators designed to encourage the effective tackling of the problem of absolute poverty in all its aspects, and to encourage international support for it, but this needs to be tested against a more ‘one-world’ approach that would be aimed more at encouraging policy-makers in every country to give greater weight to tackling systemic global issues, of which absolute poverty would be just one.92 89 Saith,

Ashwani (2006). ‘From Universal Values to Millennium Development Goals: Lost in Translation’, Development and Change, 37, 5, 1167–1199. 90 Ibid., p. 1184. 91 The Millennium Development Goals Report 2008, pp. 4–5. 92 Manning, Richard (2009). ‘Using Indicators to Encourage Development? Lessons from the Millennium Development Goals’, DIIS Report 2009:01, February, p. 65.

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With this new direction of human development we come across the very real danger of Differenzierungsverlust, the same phenomenon that we found in human security. How can we prevent that – working with a global aid agenda – large sums are spent on new laptops for children in Germany’s deprived areas when at the same time cutting back on school food for hungry children in Sierra Leone? Within the new cosmopolitan concept how do we differentiate between the sufferings of an Aspen skiing casualty and that of a Darfur rape victim? How to design new cosmopolitanism in such a way that it does not pass by those who suffer most from poverty and insecurity?

3.11 New Challenges 1. Because human development and human security are more and more interrelated they are also increasingly merging. “Human development and human security thus appear as two parallel processes that go hand in hand. Progress in one enhances the chances of progress in the other, when failure in one, enhances the chances of failure in the other. Human security and human development are therefore overall sister concepts with mutually beneficial cross-contributions.”93 It raises the legitimate question if both concepts still have a separate raison d’être. Would it not be preferable to find a concept that unites the two? A concept that fully integrates development and security? A concept with a shared research agenda, one communal public and political lobby and central planning in allocation of funds? If so, the question remains which term we should use for the merged concepts. 2. Due to far-reaching changes in the geo-political agenda and because of critical reflection on the human security and human development concepts, the once obvious chasm between the west and the south is questioned. In the south inequality is growing; we can no longer label countries as being “just” poor or “just” insecure. Moreover, the west appeared to be much more vulnerable than was assumed for a long time. Instead of thinking and acting in terms of the rich, secure and powerful west versus the poor, insecure and powerless south, the time seems ripe for a one-world approach; An approach that also includes poverty, insecurity and lack of power in the west. This one-world approach will once more unveil the original cosmopolitan ambition behind human development and human security. It is relevant to ask under which umbrella term we can realize this one-world approach. 3. For many good reasons the Human Development Index is limited to three datasets, Life expectancy, Education and Purchasing power. Security, no matter how relevant, is not measured by the HDI. For many good reasons, too, it

93 Tadjbakhsh,

Shahrbanou & Anuradha M. Chenoy (2007). Human Security. Concepts and Implications, New York, p. 116.

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is currently neither possible nor desirable to design an explicit Human Security Index, an index representing the global security of people. An interesting attempt to say at least something about the status of human security is the 2005 Human Security Report and the two consecutive publications, a Human Security Brief and a Human Security Atlas, both in 2009.94 However, the approach in these publications is a narrow approach of human security; it does not include human development. This opens the road to research the feasibility of a new index; an index that takes up the challenge to present a new paradigm, beyond the existing concepts of development and security; a paradigm that reveals the state of underdevelopment and insecurity of people worldwide. Ad. 1 A term that may guide us in our quest for answers to these questions is human dignity.95 This term not only links Human Security to new cosmopolitanism. More importantly, it is this term that makes the human being human, says Immanuel Kant; a term implying that a human being cannot be merely a means to an end, but only the end itself. Dignity represents no value, no “price” that we can set on someone; it is an intrinsic human characteristic, an absolute inner value in each human being. A characteristic that is known to every individual because it is part of “the moral law within me.” It is part of each individual’s basic notion of right and wrong. Moreover, a notion that encompasses a basic idea of the current state of our society and the ideal state of our society.96 And, dignity is an essentially contested concept. Meaning that you only use the concept in a proper way if you keep it open, if you continue to discuss and review it. Dignity is an essentially contested concept because on the one hand there will be widespread consensus on its role as basic notion of both human development and human security, on the other hand it still leaves plenty of room to add (extra) content to its meaning; a process that will probably continue indefinitely. At this moment, however, 94 See

the Human Security Research Project, http://www.hsrgroup.org. this chapter I stick to the definition of dignity given by Immanuel Kant in Grundlegung zur Metaphysik der Sitten from 1785. Human Dignity as a concept was fully elaborated for the first time by Pico Della Mirandola in his Oration of the Dignity of Man in 1486. One of the most influencial defenders of the concept of dignity in our times is Peter Singer in The Life You Can Save. Acting Now to End World Poverty published in 2009. From Mirandola through Kant to Singer, the concept changed dramatically. Peasants, slaves, children and women became included and these days Singer even defends the dignity of animals. So it is not easy to fix the term dignity to one definition. The same problem appears when we analyse the use of the term dignity in declarations, conventions or constitutions. ‘Dignity’ appears in Article 1 of the Universal Declaration of Human Rights, as it appeared in the constitution of the communist German Democratic Republic. However: one country removed ‘dignity’ from its constitution completely: Nazi-Germany in 1933. 96 But in the end we will have to leave Kant’s definition because the current use of Dignity implies certain rights. Kant, however, states that dignity mainly implies the (moral) duty to safeguard one’s own dignity and that of the other. According to Kant we should perfect our moral selves by acting on our dignity. Sensen, Oliver (2004). How Human Dignity Grounds Human Rights: Two Paradigms. Paper presented at the annual meeting of The Midwest Political Science Association, Chicago, Illinois, 15 April 2004. 95 In

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the term dignity has only marginally been adorned with human development or human security terms. Ad. 2 No matter how contested, the term human dignity is more than anything else capable of indicating where poverty and insecurity cross the line from relative to absolute. To illustrate this: a broken nose after a skiing accident in Aspen probably does not injure one’s dignity, but a broken nose suffered during a torture session in a Saudi prison certainly does. The term may also illustrate why the immigrant status in Berlusconi’s Italy will be felt as a more severe corrosion of one’s dignity than an immigrant status in the former Bush’s administration of the United States of America. Human dignity allows us to consider poverty and insecurity inacceptable – irrespective of where in the world they occur – without ending up in a world of relativism in which all distinction disappears. In the end human dignity should enable us to define the moment at which outside interference is morally justified. Ad. 3 Whereas development and security are in actual fact objectifying criteria that can be used to clarify an entire process from the most basic to the most elaborate form of development and security, the rather normative concept of human dignity enables us to define a threshold; a threshold between acceptable and unacceptable. The concept of human dignity could thus articulate the moment at which poverty and insecurity cause the loss of dignity of those suffering them. Human dignity is not merely a normative criterion; it also leaves room for subjective criteria. The scope of a possible Human Security Index is not only broad enough to include data like life expectancy, education, purchasing power and security. It leaves room for criteria like equality, pride, confidence and wellbeing.

3.12 In Conclusion Meanwhile new cosmopolitanism continues to develop, albeit in terms of human development and human security, for now. In January 2009, when I start writing this paper, all over the world people are protesting the violent Israeli invasion in Gaza. Even though Israeli authorities do not allow journalists into Gaza, Al Jazeera television coverage motivates people globally to demonstrate: from Sydney and Tokyo via Islamabad and Beirut, Salzburg and Oslo, to San José and New Orleans. While demonstrations fly across the screen on YouTube, my mailbox announces Robert B. Zoellick’s New Year’s speech; Zoellick is president of the World Bank Group. He states: “There needs to be a stronger link among security, governance and development in countries like Afghanistan, Haiti and Liberia if the one billion people living today in fragile states are ever to escape extreme poverty.”97 By the time I finish this chapter, the newspapers report that a “number of Chinese intellectuals” in an open 97 ‘Security, Governance and Development Need Stronger Link, Zoellick says’, Press release World

Bank Group, 8 January 2009. http://web.worldbank.org.

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letter call on Chinese authorities to break off relations with the “satanic regime” of North Korea and combine forces with the United States to “liberate” the 22 million North Koreans. Irrespective of the ultimate results of the Gaza-related demonstrations, the speech by Zoellick or the appeal of Chinese intellectuals, they represent the power of both human development and human security. Both are cosmopolitan grand narratives which entirely support the concept of kosmou politês. The fact that the human development concept did materialize through the Millennium Development Goals and human security has not (yet) found its practical realization, does not mean that the concept is lacking performative power. Human development and human security; both are concepts that would not have emerged without the rise of new cosmopolitanism in the eighties of the last century. In the end the cosmopolitan condition is not about human development or human security; it is not even about the umbrella term of human dignity. In the end it is all about human responsibility.

Part II

Victims of Transnational Crimes

Chapter 4

Trafficking for Sexual Purposes as a Globalized Shadow Economy: Human Security as the Tool to Facilitate a Human Rights Based Approach Conny Rijken and Renée Römkens

4.1 Introduction Mainstream analyses of globalization often reflect an optimism, as if the increased global financial and trade dynamics are an indicator of progress. This optimism has certainly received a major blow as a result of the unprecedented financial crisis that has affected the global economy after its initial start in the United States in the autumn of 2008. Although this crisis cuts across social classes to a certain extent, with some people even going from riches to rags, it obviously affects the disadvantaged social groups most. The financial crisis in a way underlined what many critics of the global markets had already been pointing out for many years: globalization does not exactly have a beneficial impact on many historically disadvantaged groups in terms of race, class and gender.1 On the one hand, globalization has stimulated the creation of job opportunities that were non-existent before. On the other hand, the reconfiguration of economic spaces, in combination with technological developments in information and communication has fostered a dynamic that has increased distance between the valorized high-end and devalorized low-end jobs.2 It has also led to an increased supply of low-paid jobs in the agricultural and offshore industries and to an increased demand for low-paid service jobs. Sex work can be considered one of those service jobs in the informal labor market that faces an increasing demand. In this chapter the effects of globalization on trafficking in human beings (THB) for the purpose of sexual exploitation will be explored from the perspective of those C. Rijken (B) Associate Professor, Senior Researcher INTERVICT, Department of European and International Public Law, International Victimology Institute/Tilburg University Law School, PO Box 90153, 5000 LE Tilburg, The Netherlands e-mail: [email protected] 1 Arya,

S. & Roy, A. (2006). ‘When Poor Women Migrate’, in: Arya, S. & Roy, A. (eds.). Poverty, Gender and Migration, New Delhi, Sage Publications. Sassen, S. (1998). Globalization and its Discontents. Essays on the New Mobility of People and Money, New York, NY, W.W. Norton & Company. 2 Sassen, S. (1998). ‘Toward a Feminist Analysis of the Global Economy’, in: Sassen (1998, pp. 81–109). 73 R. Letschert, J. van Dijk (eds.), The New Faces of Victimhood, Studies in Global C Springer Science+Business Media B.V. 2011 Justice 8, DOI 10.1007/978-90-481-9020-1_4, 

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who are subjected to forced prostitution or sex work, virtually always women and girls. Trafficking is a criminal act that often constitutes a violation of migration laws. Therefore, the legal response is defined by the aims and interests that inform these two legal frameworks: prosecution of the suspect, protection of national borders and control of transnational migration. The question we raise is what a human rights perspective enhanced by the concept of human security can offer to address trafficking. We will argue that the concept of human security deserves a more prominent place in order to make a human rights based approach to trafficking truly sensitive to identifying the needs of victims in terms of assistance and support. First the relation between globalization and migration and their effects on trafficking in human beings (THB) will be explored. Given that the legal response to THB usually focuses on prosecuting traffickers, and therefore finds its basis in criminal law, we will examine which obligations flow from using a human rights law framework to effectively address THB. We will argue that we need to find a balance between serving criminal legal (prosecutorial) interests and victims’ interests. It will be argued that a more comprehensive approach to trafficking in human beings can be realized only if the needs of those who are trafficked are chosen as the starting point for devising remedies against trafficking in human beings. Finally we will argue that the concept of human security might be helpful, not only to identify these needs in a comprehensive way, but also as a conceptual framework that allows to productively reconcile the tension between prosecutorial interests and victim protection in the field of trafficking.

4.2 Globalization and Trafficking Globalization encompasses the international flow of ideas and knowledge, the sharing of cultures, the closer (economic) integration of the countries of the world through the increased flow of goods and services, capital, and labor.3 Theoretically, globalization may lead to an improvement of living standards throughout the world amongst other things, because it may give poor countries access to overseas markets and may open borders for people to education and work. However, in reality this is often not the case. One fundamental critique is that globalization in fact pushed a particular set of economic values often resulting in increased economic inequality between and within countries. It is generally recognized that not all people profit equally from a globalized world and that it can even have devastating effects on some (groups of) people.4 More specifically: the internationalization of manufacturing industry brought along, inter alia, a feminization of poverty.5 Here we will 3 Stiglitz,

J. (2006). Making Globalization Work, London, Allen Lane. (2006, p. XVI) and Arya & Roy (2006, p. 16). 5 Sassen (1998). ‘Notes on the Incorporation of Third World Women into Wage Labor through Immigration and Offshore Production’, in: Sassen (1998, pp. 82–131). See also: Ehrenreich, B. & Hochschild, A. (eds) (2003). Global Woman: Nannies, Maids and Sex Workers in the New Economy, London, Granta Books. 4 Stiglitz

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address specific aspects of globalization that are particularly relevant in the context of human trafficking.

4.2.1 Globalization and Migration One effect of globalization is that some people have increased possibilities to move to other places and countries to find work. Referring to the uneven impact of globalization in terms of the opportunities or obstacles it creates, Castles has described the relation between globalization and migration on the basis of nine contradictions.6 The first one is the contradiction between inclusion and exclusion: “[s]ome become full members of the new global order while others are marginalized.”7 Most developed countries have adopted restrictions on migration into their countries and, in doing so, literally practice a policy of inclusion and exclusion. Most Western countries (Western EU countries, USA, Canada) created specific migration possibilities exclusively for highly educated and skilled personnel in the ICT sector or in academia. This obviously contributes to a brain drain in the countries of origin. Low-skilled and less educated workers are often excluded, even though there is a substantial demand for these workers. Therefore in the low-skilled segment of the labor market, most notably in domestic or agricultural labor (often temporary, seasonal work) the demand for workers is met by illegal migrants. The liberalization of capital markets has taken place largely from the perspective and to the benefit of the developed countries in the global North.8 The flow of migrants around the world primarily goes from the poorer to the richer regions. Even with investment in developing countries, the flow of multi-national capital does not lead to structural improvement of national economies since most of the benefits flow back to the Western investors. The dominant neo-liberal and capitalist economic dynamics of globalization dictate the direction of this migration flow. The global North expands its economic growth and wealth through cheap labor supply, mainly from the global South, both legally and illegally: legally through off-shoring parts of its industry to low-wage countries, and illegally by employing illegal and/or trafficked migrant workers.9 Globalization has contributed to an increasing inequality between developing and industrialized countries, with a particularly negative impact on many women.10 6 Castles, S. (1998). ‘Globalization and Migration: Some Pressing Contradictions’, International Social Science Journal, 156, 179–186. 7 A closer look at the other contradictions which Castles distinguishes shows that they directly or indirectly touch upon the contradiction between inclusion and exclusion: the contradiction between market and state, growing wealth and impoverishment, the Net and the Self, the global and the local, the economy and the environment, modernity and postmodernity, the citizen as a national and the global citizen, globalization from above and globalization from below. 8 Stiglitz (2006, p. 89). 9 Sassen (1998); De Sousa Santos, B. (ed.) (2007). Toward a New Legal Common Sense; Law, Globalization and Emancipation, London/New York, NY, Verso. 10 Arya and Roy (2006, pp. 20–21).

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People will seek every opportunity to improve their livelihoods as long as the imbalance between labor demand and a surplus in supply is growing in less industrialized and developing countries.11 If there are no (legal) ways to reach job markets to make a decent living, the illegal path is the only alternative. As markets by themselves do not lead to efficiency, governmental regulation is required.12 These governmental interventions, mostly through highly restrictive migration laws, do not necessarily have the intended effect and may even have unintended or contradictory side-effects.13

4.2.2 Migration and THB The push and pull factors of both migration and trafficking reflect a complex constellation of social, economic and political constraints in which individuals decide to look for opportunities “abroad,” hoping to make a better living.14 In a context of many legal and practical constraints to migrate legally and a large supply of aspiring migrants, the latter can easily become targets for individual smugglers of humans, traffickers and (organized) criminal groups.15 The boundaries between voluntary migrations on the one hand, where people are willing to take risks in the process of being smuggled in order to find work, and trafficking on the other hand get blurred easily. We need to distinguish smuggling, as a form of voluntary migration, from trafficking, although the underlying socioeconomic dynamics are both fuelled by poverty.16 Trafficking is primarily about work offers that turn out to be false because the (migrating) individuals are eventually forced to do either other work or work under slave-like conditions. Trafficking can take place in one and the same country but is often committed across borders. Smuggling is not about work but about the offer to arrange transportation to another country that the individual either cannot reach by her/himself and/or cannot enter legally. Individuals who want to migrate to find work in that country are vulnerable to financial exploitation: the smuggler usually charges excessively high prices for transportation, often under abysmal conditions with severe risks to life and health. Once in the country of destiny, smuggled individuals are illegal immigrants searching for work. However, an unknown number of smuggled people end

11 Commission

on Human Security, Human Security Now, New York, NY 2003, p. 44. (2006, p. 29). 13 See for instance World Commission on the Social Dimension of Globalization, A Fair Globalization: Creating Opportunities for All, Geneva, ILO, 2004, p. x. Stiglitz argues that the negative side-effects are not inevitably connected to globalization itself but more to the way globalization is (mis)managed. Stiglitz (2006, p. 24). 14 Arya & Roy (2006, pp. 9–10). 15 Castells, M. (1998). End of Millennium, vol. III, The Information Age, Malden, Blackwell, pp. 168-178. 16 Scarpa, S. (2008). Trafficking in Human Beings, Modern Slavery, Oxford, OUP, pp. 41–82, Bales, K. (2004). Disposable People, New Slavery in the Global Economy, University of California Press. 12 Stiglitz

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up in forced, exploitative work settings in order to pay back the smugglers. In that case, smuggling is considered a form of trafficking. It is the conditions under which individuals are forced to work, sometimes without any payment, and achieved by deception, that distinguishes trafficking from smuggling. From the perspective of protective legal measures, the issue of trafficking concerns the protection of individual persons against violence and abuse, whereas smuggling of persons concerns the protection of the state against illegal migration.17 Here we use the internationally accepted definition of trafficking as defined in the Palermo Protocol of 200018 : The recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.19

Trafficking was initially associated particularly with exploitation for sexual purposes, mostly of women and children. The current gender-neutral and broadened definition of THB reflects that male victims are increasingly targeted as well, usually to work under slavelike conditions in agriculture (often in remote rural areas) or in industries where governance and supervision are easy to circumvent.20 A small minority of men and boys are trafficked for sexual purposes. Keeping that in mind, most of the research and data available on trafficking at this point in time is based on findings regarding female victims of sexual exploitation.21 Reliable data on the number of persons being trafficked are difficult to gather since the majority of all victims inevitably are kept hidden, virtually imprisoned by their traffickers. In the US Trafficking in Persons report, it is estimated that between 600,000 and 800,000 persons a year are trafficked across international borders worldwide, the majority of which are women (children take up most of the rest, and male victims are the smallest part). Most of them are trafficked for sexual

17 Ditmore,

M. & Wijers, M. (2003). ‘The Negotiations of the UN Protocol on Trafficking in Persons’, Nemesis, 4, pp. 79–88. 18 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nation Convention Against Transnational Organised Crime, signed in Palermo, December 2000. 19 It is beyond the scope of this chapter to fully address the ongoing debate on the definition of THB. See for instance, Doezema, J. (2002). Who Gets to Choose? Coercion, Consent and the UN Palermo Protocol, Gender and Development, p. 1. Jordan, A. (2002). Annotated Guide to the Palermo Protocol, New York, NY, International Human Rights Law Group. 20 For a more elaborate description on this, see Jonge van Ellemeet, de H. & Smit, M. (2006).‘ Trafficking for Exploitation Outside the Sex Industry’, in Anker, van den Ch. & Doomernik, J. (eds.), Trafficking and Women’s Rights, Hampshire, Palgrave MacMillan. 21 See Dutch National Rapporteur on THB (2004 and 2005). Trafficking in Human Beings, Third and Fourth Reports, The Hague. These conclusions may apply mutatis mutandis to victims of (other forms of) economic exploitation. Smartt, U. (2003). Human Trafficking: Simply a European Problem? European Journal of Crime, Criminal Law and Criminal Justice, 2, pp. 167–169.

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exploitation or for exploitation as a domestic worker.22 THB takes place on national, regional, and international levels. Virtually every state across the globe is affected by the crime of trafficking, be it as a country of origin, transport, or destination.

4.2.3 Feminization of Migration and Gendered Vulnerability to Victimization by Trafficking Economic and political effects of globalization negatively impact the position of women in general and their vulnerability for trafficking practices more specifically. Although empirical research on patterns of transnational migration is still limited, there is a clear tendency that the number of women who migrate is on the increase. This applies particularly to female breadwinners who carry the sole responsibility to care for their children and sometimes also for elderly members of the family, with whom many leave their children in order to be able to provide for the extended family.23 The ultimate goal of migration is essentially the same for both migrating men and women. Besides the reasons that motivate virtually every migrant – the desire to provide a basic income and better life for themselves and/or their family – for a substantial number of female migrants there is also a gender-specific push factor at work: the motive to leave an abusive and violent family situation. In this regard, the former UN Special Rapporteur on violence against women Coomaraswamy stated that “to counter trafficking by preventing women’s migration is to lock them into domestic systems of oppression.”24 One of the effects of globalization is that with the increasing poverty in the global South and the currently rising unemployment, women become particularly vulnerable to exploitation and abuse.25 In a labor market that still is largely divided along gendered lines, sexual or domestic work are two of the few income-generating options available to women who have enjoyed hardly any or only very limited education or training. Because on average, women receive less formal education than men in the global South, they have fewer chances to enter the formal labor market, either in the South or the North. In the international public labor market, there is hardly a specific demand that fits skilled female workers, except health care nurses. The substantive demand in the formal labor market is predominantly targeting unskilled female workers for low-paid jobs in the garment and textile industries, often in very 22 US (2005) Department of State, Trafficking in Persons Report, available at http://www.state.gov/

g/tip/rls/tiprpt/2005/, p. 6. See also: Vlachová, M. & Biason, L. (eds.) (2005). Women in an Insecure World: Violence against Women, Facts, Figures and Analysis, Geneva, Geneva Centre for the Democratic Control of Armed Forces, p. 27. Ehrenreich & Hochschild (2003). Trafficking of women, children for prostitution and forced labor is one of Europe’s most lucrative crimes. According to the UN Office on Drugs and Crime the trade generates between $2,5 and $3 billion per year (International Herald Tribune, June 30, 2010). 23 Ehrenreich & Hochschild (2003). 24 Coomaraswamy, R. (2005). ‘Human Security and Gender Violence’, Economic and Political Weekly, October, pp. 4729–4736. 25 Also Wijers, M. & Lap-Chew, L. (1997). Trafficking in Women, Forced Labour and Slavery-like Practices in Marriage, Domestic Labour and Prostitution, Utrecht, GAATW and STV, p. 43.

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poor working conditions (sweat shops).26 Ultimately, women are pushed predominantly into the informal and therefore unregulated labor markets in the private sector. We find migrant women mostly working in the area of domestic work, child care, as au pairs, and in the in entertainment and sex industry.27 Migrating legally for sex work is virtually impossible. There are no possibilities to obtain a work permit, not even in countries where voluntary prostitution by adult women is legalized. Consequently most low-skilled migrant women are pushed into low-end jobs, or into the illegal or quasi-legal job markets, all of which amplifies their vulnerability to exploitation by traffickers. Due to the limited options for migrating legally, women in particular are left with few other options than to make use of the services of more or less dubious middlemen or intermediate agencies who meet that demand.28 As Wijers and Lap-Chew noted: Poor or lacking legislation and labor standards and the partially illegal or semi-legal character of the work, form the basis for suppressive and exploitative working conditions, varying from humiliating treatment, low payment and extreme working hours to outright forced labor and slavery-like conditions. Women caught in clandestine and informal sectors are hardly in the position to protest or claim their rights.29

Against this backdrop, globalization can be considered as a crucial factor contributing to the increase in trafficking of women. One of the effects of globalization is the increase in demand for low paid service jobs including sex work. Due to the growing number of migrants – legal or illegal – an increasingly large number of workers are separated for prolonged periods of time from their family and community of origin, including their sexual partners. Just as globalization, in the context of an increasing sexualization of Western cultures, has fostered the sex tourism industry (virtually exclusively catering to men), both legally and illegally (i.e. child prostitution), it could be argued that the global migration of labor contributes to the growing public demand for sexual services generally, notably among adult males.30 Seamen in fact exemplify global migrant workers avant-la-lettre who traditionally have attracted prostitutes to their working areas – harbors – to supply the demand for sexual services.31 Another example is the stationing of UN forces which in some areas has constituted an increase in trafficking activities and exploitative practices. With an increased demand of men for heterosexual services, more women are needed for the supply. It has become a profitable market for traffickers. Given that prostitution traditionally had a close link to

26 Arya

& Roy (2006, p. 22). & Lap-Chew (1997, p. 42). Ehrenreich & Hochschild (2003). 28 Arya & Roy (2006, p. 16). 29 Wijers & Lap-Chew (1997, p. 46). 30 This raises the question of why sexual needs of female migrants do not seem to translate into a publicly visible demand for, or supply of, heterosexual male sex workers. However, that is beyond the scope of this chapter. 31 See H. Trotter (2008). Sugar girls & seamen. A Journey into the Worlds of Dockside Prostitution in South Africa, Auckland Park (SA), Jacana Media. 27 Wijers

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organized crime, sexual trafficking is an example of a globalizing economy in the criminal underworld, with women and girls as a profitable commodity. Some authors argue that the root causes of trafficking stem from the abusive nature of (biological) men with respect to women and hence see (male) criminality and “feminization of poverty” as conventional explanations of trafficking.32 Although we recognize that the subordinate position of women in many countries is an important source of violence and discrimination against women,33 including trafficking, subordination in and of itself is the result of a complex set of intersecting variables that cannot be reduced to the biology of the male sex. Trafficking should not be seen in isolation of other phenomena such as the economic and political effects of globalization, indicated above, which have a negative effect on the position of women.

4.2.4 Victims of Trafficking: Identifying Victims’ Needs and Stereotyping Although many women are recruited under false pretenses (promising work as a “waitress” or as a “dancer”) and are unequivocally victims of deception and fraud, sometimes even abduction, some women knowingly agree to do sex work in the country of destination. It is only upon arrival that women are subjected to fake debt-bondage contracts and are forced to work under severe threats (directed at them or their family) and are in fact held hostage because their passports are taken away. Without suggesting to be exhaustive, we can identify several common aspects in relation to the threat and violence used against victims of trafficking.34 The most common means of force used against women (in the case of cross-border trafficking) are to exploit victims’ fear for deportation due to the illegality of the residential or employment status of the victim, as well as (threatening with) physical and/or sexual violence. More subtle means like (emotional) blackmail are common as well, like frightening victims with regard to potential sanctions from the (law enforcement) authorities or misleading the victim by pretending to engage in a love affair with the victim. Traffickers are very creative in finding effective ways to keep the victim under control. Victims often know the person who trafficked them (sometimes a relative), which enhances the risk of retaliation or of being retrafficked. The threat and violence used by the trafficker may also be aimed against relatives of the victim.

32 Dunlop, K. (2008). ‘Human Security, Sex Trafficking and Deep Structural Explanations’, Human

Security Journal, Spring, pp. 56–64. for instance, Article 5 of the Convention on the Elimination of all Forms of Discrimination Against Women. 34 Wijers & Lap-Chew (1997, pp. 86–92). Dutch National Rapporteur on THB (2002). Trafficking in Human Beings, First Report, The Hague. These aspects must not be considered exhaustive but must be seen as a motivation for adopting special protection and assistance measures for victims of THB. 33 See,

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Once it is known that a victim has worked as a prostitute, she is often ostracized in her family and social environment, regardless of the fact that she was forced. The fear of social isolation is a powerful mechanism to force victims into compliance. Although poverty and the abusive conditions they live under are important push factors for women’s migration, it is a misunderstanding to assume that they are helpless without any social or intellectual resources whatsoever. Assuming such a relation between intellect, poverty, and susceptibility to trafficking would lead to a stereotypical and one-dimensional portrayal of the victim of trafficking.35 Acknowledging resilience and agency among victims of sexual trafficking does not deny nor minimize the severity of the crime of trafficking that they fell victim to. The debate on victims’ agency in a context of structural inequality touches directly on an ongoing controversy in political and academic circles on women’s agency when choosing to do sex work. On the one hand, there is the abolitionist position, in which all sex work is considered a form of sexual slavery that amounts to trafficking. Sex workers are essentially and always considered to be victims of a male-dominated culture.36 For example, Dunlop concludes that “until patriarchal assumptions on women are overturned, until male power becomes no longer defined in sexual terms and masculinity and pornography stop emphasizing the primacy of male needs over female dignity, women will be sex trafficked and dehumanized, tortured and exploited for men.”37 The other, more liberal, position holds that we need to acknowledge and respect women’s agency when they choose to engage in sex work. Whether sex work can be considered as forced and as a form of trafficking depends on the circumstances under which sex work is performed.38 This debate is particularly relevant in the context of trafficking because it is the moral connotation of non-respectability that sex work often evokes, which seems to profoundly influence both the legal and the social response to victims of trafficking and sexual exploitation. The predominance of a moralizing approach to trafficking for sexual purposes leads to a contradictory, and even paradoxical, image of the victim. On the one hand, in a legal context, the victim of trafficking is positioned by police and prosecuting authorities primarily as an illegal migrant who willingly decided to leave her country and who therefore should be treated with scrutiny if not outright suspicion.39 This presumes an agentic victim who knowingly subjected herself to risky situations and who is therefore responsible for the negative consequences. On the other hand, in a social context, the victim of trafficking is positioned as in need of 35 Dutch

National Rapporteur on THB (2002, pp. 71–112). a recent example of that position, see Miriam, K. (2005). ‘Stopping the Traffic in Women: Power, Agency and Abolition in Feminist Debates over Sex-Trafficking’, Journal of Social Philosophy, 36, 1, pp. 1–17. 37 Dunlop, p. 64. In a similar vein: Miriam (2005). 38 See Doezema (2002), also Ditmore & Wijers (2003). 39 Song, C. & Lee, S. (2006). ‘Between a Sharp Rock and a Very Hard Place: The Trafficking Victims Protection Act and the Unintended Consequences of the Law Enforcement Cooperation Requirement’, Intercultural Human Rights Law Review, 1, pp. 133–156. 36 For

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support. The response toward victims is moving towards the opposite: the victim is often considered as completely helpless, naive and in need of being rescued. Both positions are inevitably biased when looking at the complexity of factors affecting women’s choices. The construction of the helpless victim implies a denial of victim’s agency on either end of the trafficking route. It not only misconstructs the needs of victims, but also leads to the construction of the real and “worthy” victim, deserving our support, versus the unworthy victim who does not need or deserve support since she is responsible for her predicament of having been trafficked.40 Even if trafficked sex workers initially chose to go abroad to do sex work, they had been led to believe they would do so under different conditions than the slavery-like forced prostitution they were eventually subjected to. Following the definition of the Palermo Protocol, their knowingly entering prostitution does not make women less of a victim if they are eventually deceived and forced to do the sex work. Acknowledging their initial choice does not affect their legal victim status; yet, it is crucial from a practical intervention point of view because it influences their legitimate needs and choices once they exit the trafficking situation. Empirical research among victims of trafficking by Brunovskis and Surtees (2007) reveals that a substantial number of victims of trafficking is offered support, usually by NGOs that do not seem to fit their needs because these NGOs often address them as helpless victims. Organizations often fail to take into consideration the complexities of the social and cultural contexts of origin in which women need to reintegrate, or sometimes actually refuse to return to.41 The study shows that between 10 and 40% of victims of trafficking at one point or another decline the help that is offered to them. A complex set of reasons is given, underlining that victims of trafficking are a heterogeneous group. Victims’ decisions to accept or decline assistance is the outcome of a complex set of considerations depending on the availability of psychological, social and financial resources. Being publicly known as a victim is not an attractive position for many of the trafficked women, and it evokes resistance. Some victims decline assistance because they rather earn money themselves, despite the horrifying working conditions, so they can feel “successful” migrants. Others do not feel victims because at least they did receive some money for the work they did. For some women, being considered a victim is a stigma they want to avoid out of fear of social exclusion because they “failed in going abroad” and did not return with money. Other women indicate they will not always need assistance after they return because they can get it from their own social network. Lack of trust in the help that had been provided was another recurring reason for declining help after victims returned; particularly if accepting such help would imply that the victim was publicly recognizable in her community. Many victims face distrust from

40 Van Dijk, J. (2008). Slachtoffers als zondebokken: over de dubbelhartige bejegening van gedupeerden van misdrijven in de westerse cultuur, Apeldoorn, Maklu. 41 Brunovskis, A. & Surtees, R. (2007). Leaving the Past behind? When Victims of Trafficking Decline Assistance, Fafo report, pp. 17–18.

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their families, who are concerned about their own reputation. Others fear reprisals of the traffickers if they would accept help and identify themselves as victims of trafficking. These results underscore how little systematic knowledge we actually have about the diverging needs of victims of trafficking. This becomes clear when victims of trafficking decide to continue doing sex work after they have been released from the trafficked situation, only this time under better working conditions that allow them to make enough money to send home. They not only face lack of support but outright dismissal.42 The identification of the needs of victims of trafficking for sexual exploitation is often based on an underlying moral approach to sex work and by deeply rooted suspicions against prostitutes as unreliable victims. It exemplifies the ambivalence often encountered by victims of trafficking for sexual exploitation. This ambivalence often translates into positioning the victim of trafficking as either helpless (and therefore a victim worthy of our support) or as completely responsible for her situation (and thus virtually a blameworthy victim). When addressing women’s victimization it is crucial to acknowledge the continuum of victimization and agency in order to capture the complexities of variables affecting women’s victimizations and agentic choices for that matter.43 The current responses to trafficking for sexual exploitation are often dominated by the perspectives and needs of support organizations (governmental and non-governmental), and those of the criminal legal system that focuses on the traffickers and is therefore guided by prosecutorial interests.

4.2.5 Impact of Dominant Legal Responses to Combating Trafficking Nowadays, THB is more difficult to combat because of its diverse and international nature and the growing involvement of organized crime.44 Although combating THB is an item on the political agenda of many states, as well as a duty of regional and international (non-governmental) organizations, there are no indications that the number of persons being trafficked is declining. On the contrary, traffickers and the organized crime groups involved become more sophisticated in finding ways to exploit people. Despite the growing decline in average poverty world-wide, the

42 Bandyopadhyay, N. (2006). ‘Streetwalkers Show the Way. Reframing the Debate on Trafficking from Sex Workers’ Perspective. Institute of Development Studies Bulletin, 37, 4, pp. 102–106. 43 For a similar dynamic the conceptualization of the victim of domestic violence, see Schneider, E. (2000). Beyond Victimization and Agency. In: Schneider, E. (2000). Battered Women & Feminist Lawmaking. New Haven, CT, Yale University Press, pp. 74–97. Also: Römkens, R. (1996). ‘Zwei Seelen in einer Brust.’ De partnerdoodster als slachtoffer en dader’, in: Römkens, R. & Dijkstra, S. (eds.) (1996). Het omstreden slachtoffer. Geweld van vrouwen en mannen. Baarn, Ambo, pp. 77–100. 44 Rijken, C. (2003). Trafficking in Persons. Prosecution from a European Perspective. The Hague, T.M.C. Asser Press, pp. 5–7, 201–241.

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2008 data indicate a dramatically rising poverty rate in developing countries.45 This growing gap worldwide between the poor and the rich underlines the growing force of poverty as one of the basic push factors for migration. The dominant legal responses to THB have been located in criminal and migration law. As a result, the interests of victims of THB are inevitably considered to be a secondary concern compared to prosecution and control of migration.46 Controlling migration flows or the gathering of useful testimonies of victims in the interest of prosecution of the traffickers, more specifically to take measures against organized crime, receive more attention than the prevention of THB or the protection of victims. This clearly follows from the fact that the Palermo Protocol is a protocol to the UN Convention against Transnational Organized Crime, which means that THB is merely perceived from an organized crime perspective. In addition, the provisions for the protection of and assistance to victims of THB in the protocol are discretionary (non-mandatory) provisions. During the negotiations leading up to the Palermo Protocol it was not possible to adopt more binding provisions because of the economic interests of both developed and developing countries. The developed countries that receive most trafficked persons are concerned about providing “rights” to illegal migrants, whereas developing “sending” countries are concerned about the costs of taking on obligations to provide assistance to returned victims of trafficking.47 To make counter-trafficking efforts more balanced, we must look beyond criminal law. As THB is a complex crime, it requires action in various fields other than merely criminal law, for instance, labor law, migration law and development policies. In order to address THB more effectively, the idea that counter-trafficking strategies have to be developed in all these fields and in a coordinated way is gaining ground. This is what is called an integrated approach to THB.48 As the severe violation of a person’s human rights is the most objectionable element of trafficking, using a human rights based framework might be helpful to develop such an approach. Although some recent studies have taken initial steps towards the identification of the human rights obligations in relation to THB, this has been done from the perspective of states.49 However, human rights were written in the first place for 45 Growing

Unequal? Income Distribution and Poverty in OECD Countries, OECD publishing, October 2008. 46 GAATW (2007). Collateral Damage, The Impact of Anti-Trafficking Measures on Human Rights around the World, Bangkok. See also: Ditmore & Wijers (2003) who point out that this focus of government officials on prosecutorial interests was obvious during the negotiations of the UN Palermo Protocol. 47 Ditmore & Wijers (2003, p. 85). 48 See, for instance, the Report of the European Expert Group on Trafficking in Human Beings, Brussels, December 2005, pp. 62–64, and the EU plan on best practices, standards and procedures for combating and preventing trafficking in human beings, OJ, C 311, 9 December 2005, p. 1. 49 Obokata, T. (2006). Trafficking of Human Beings from a Human Rights Perspective, Towards a Holistic Approach, Leiden, Martinus Nijhoff Publishers, and Gallagher, A. (2006). Human Trafficking: International Law and International Responsibility. Dissertation, Utrecht, Unpublished.

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the benefit and protection of individuals. As the human rights violations of victims of THB are seen as the most devastating features of the crime of THB, it is vital that we explore what human rights can mean for victims of THB in order to meet their needs. Putting the victim at the center when determining counter-trafficking policies might provide guidance when developing an integrated approach based on human rights.

4.3 Human Rights Obligations in Relation to THB 4.3.1 The Human Rights Framework in Relation to THB THB has been addressed in some international human rights law instruments, and human rights law provisions have been adopted in some of the conventions specifically drafted to combat THB. The most important will be discussed here.50 The most specific reference to THB in human rights law can be found in Article 6 of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). This article states that “States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.” General Recommendation No. 19 reiterates THB as a practice that puts women in a position of special risk of violence and abuse.51 Article 8 of the International Convention on Civil and Political Rights (ICCPR) prohibits slavery and forced and compulsory labor. Although slavery must be understood in its traditional form under this Convention, meaning the ownership over a person,52 some forms of THB can be considered a form of slavery and more easily a form of forced or compulsory labor. The slavery conventions might be applicable in THB cases; although, in the Slavery Convention of 1926, slavery is understood in the same narrow way as in the ICCPR.53 The supplementary Convention on Slavery and Slavery-like Practices54 is applicable for some forms of THB.55 The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography must be considered relevant as well. 50 Only

the documents on the international level will be mentioned. For an overall overview of human rights obligations in relation to THB, the instruments adopted on the regional levels must be taken into account as well. However, it is not our aim to provide such an overview but an exploration of the possibilities of human rights law in addressing THB. 51 General Recommendation 19 on Violence against Women, U.N. Doc. A/47/38 at 1 (1993). 52 Bossuyt, M.J. (1987). Guide to the ‘Travaux Préparatoires’of the International Covenant on Civil and Political Rights. Dordrecht, Nijhoff, p. 165. 53 It is stated in Article 1, paragraph 1 of the 1926 Slavery Convention that slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised. 54 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 226 U.N.T.S. 3, entered into force on April 30, 1957. 55 Rijken (2003). pp. 74–79.

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Looking at the specific conventions on THB, the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1951) can be seen as an important document.56 This Convention is not primarily a human rights document as it mainly takes a criminal law perspective from an abolitionist point of view that all forms of THB as well as prostitution must be prohibited. Some provisions in this Convention address the protection and support of victims of THB but in very general terms.57 Another crucial document is the Palermo Protocol (2000) to the UN Convention on Transnational Organized Crime, mentioned above. Although Articles 6, 7 and 8 of this Protocol refer to assistance to, the legal status of, and the repatriation of victims of THB, and thus indirectly refer to the human rights of THB victims, these provisions are formulated in a non-binding way which means that states are not obliged to adopt these measures.58 At the EU level, the EU Framework Decision on Combating THB was established in July 2002.59 This document only refers briefly to the rights of victims through the Framework Decision on the Standing of Victims in Criminal Procedures. This is different from the EU plan on best practices, which states that the EU recognizes the importance of a human rights and victims-centered approach.60 In contrast to the Framework Decision, this plan is a non-binding instrument. In March 2010, a proposal was launched to amend the Framework Decision which focuses more on victims’ rights and the causes of THB.61 An exception in a positive sense is the regional Council of Europe Convention on Action against Trafficking where the human rights of the victims are taken as the starting point. A non-binding document worth mentioning here is the Recommended principles and guidelines on human rights and trafficking.62 In light of this overview of the relevant human rights instruments that directly or indirectly regard THB, the question is whether these rights can be enforced by individuals who are victims of THB and whose rights have been violated. Apart from the fact that the perpetrator of a crime may be found liable for harm to the victim of that crime, the question arises whether the occurrence of THB and thus the fact that human rights have been violated may also lead to specific obligations of the state in which the trafficking took place. It has been established that states

56 UN

Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, UNTS 271, entered into force in July 1951. 57 For instance, Articles 16 and 19. 58 For instance, paragraph 3 of Article 6: “Each state party shall consider [. . .].” 59 Council Framework Decision on Combating Trafficking in Human Beings, OJ L 203, 1 August 2002, currently under revision, see footnote 61. 60 EU plan on best practices, standards and procedures for combating and preventing trafficking in human beings, OJ C 311, 9 December 2005. 61 Proposal for a Directive on preventing and combating trafficking in human beings and protecting victims, repealing Framework Decision 2002/629/JHA, COM(2010)95. 62 United Nations High Commissioner for Human Rights, Principles and Guidelines on Human Rights and Trafficking, E/2002/68/Add.1 (2002).

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do not merely have negative obligations (an obligation to refrain from violations) in relation to human rights but have positive obligations as well. This was made clear in the tripartite typology which indicates that, for each human right, states have an obligation to respect, to protect and to fulfill. When considering the relevant international instruments, both CEDAW and the ICCPR have an Optional Protocol providing for an individual complaints procedure for victims whose rights under the relevant Convention have been violated. In case of CEDAW, it is also possible to file a complaint on behalf of a victim or group of victims. Article 6 CEDAW, so far, has not been the subject of any complaints before the CEDAW Committee. The Human Rights Committee dealing with the complaints under the ICCPR has taken views on Article 8 in some cases but none with respect to THB. Although the views of the Committees are not binding, they can be seen as authoritative interpretations. Complaints of individuals may concern a violation of any of the provisions in the specific convention and are always directed against a state. The obligations adopted in the conventions are after all directed at the states as addressees of the conventions.63

4.3.2 State Obligations Based on Human Rights in Relation to THB If a human rights based approach could provide protection and assistance for victims of THB, it can only be in the form of obligations for states, since they are the primary legal subjects of any human rights law.64 Obokata (2006) identified four core state obligations in human rights law that particularly apply to THB: the obligation to prohibit trafficking, to punish traffickers, to protect victims, and to address the causes and consequences of the act.65 These four obligations reflect similar standards in several UN documents on what a human rights based approach to violence against women would imply. There the need of the “three Ps” perspective is emphasized: prevention, protection of victims and punishment of perpetrators, while

63 In case of THB the violator is usually not a state but an individual or a group of individuals. Even

though nowadays the view has been adopted that non-state actors also have responsibility to protect indiviudals against human rights violations, this does not mean that human rights obligations automatically have their effect in horizontal relations between citizens. See, for instance, Clapham, A. (2006). Human Rights Obligations of Non-State Actors, Oxford, Oxford University Press. 64 On positive state obligations, see: Mowbray, A.R. (2004). The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights, Oxford, Hart, Okafor-Obasi, O. (2003). The Enforcement of State Obligations to Respect and Ensure Human Rights in International Law, Potsdam, Potsdam MenschenRechtsZentrum der Universität, Marshall, J. (2008) ‘Positive Obligations and Gender-based Violence: Judicial Developments’. International Community Law Review, 2, pp. 143–169. 65 Obokata, T. (2006) ‘A Human Rights Framework to Address Trafficking of Human Beings’, Netherlands Quarterly of Human Rights, 3, pp. 379–404.

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simultaneously emphasizing that any effective implementation of these obligations is dependent on underlying coherent policies.66 Criminalization of THB as part of states’ obligation in fighting THB stems from this obligation, that has been adopted in many international documents on THB.67 The definition of THB in the Palermo Protocol has given a positive impulse to criminalizing THB in various legal systems across Europe. The European Court of Human Rights considered effective criminalization of the forced labor provision (Article 4 ECHR) an obligation in relation to THB in the case of Siliadin v. France.68 In this case, a Togolese girl came to France as a minor and was put to work in the housekeeping of a French Togolese family. She had to work many hours, 7 days a week with virtually no leave. She had to sleep on a mattress on the floor of the children’s bedroom and was not paid. She was not allowed to go to school, her passport was taken from her and, although this had been promised, her stay was not regularized. Given the facts and the circumstances of the case, this would constitute the crime of THB, as defined in the Palermo Protocol. Yet, at that time, the French Criminal Code did not include a specific provision on THB, so the suspects were prosecuted under another provision of the penal code. In line with its earlier case law, the Court argued that Article 4 ECHR gave rise to positive obligations on the States Parties, consisting of the adoption and effective implementation of criminallaw provisions, making the practices set out in Article 4 a punishable offense.69 In more concrete terms, the Court holds that states were under an obligation to penalize and punish any act aimed at maintaining a person in a situation incompatible with Article 4. This not only goes for violations resulting from acts of state (or its representative bodies), but also for acts of private individuals. Because France did not have adequate criminal legislation that unambiguously made the relevant behavior punishable, and since the perpetrators of this behavior had not been convicted in national procedures, the Court ruled that the state had violated its positive obligations under Article 4.70 The mere criminalization of THB and related offenses, however, is not enough, certainly not from a human rights perspective. As with any law, its force lies for a good part in its implementation and enforcement. It also requires an effective criminal legal system that is responsible for investigation and prosecution of THB.

66 See

Report of the Special Rapporteur on violence against women, its causes and consequences (2006). ‘The Due Diligence Standard as a Tool for the Elimination of Violence Against Women’, E/CN.4/2006/61, para. 29. 67 Obokata (2006) and Gallanger (2006), pp. 275–280, 289–294. Article 5 Palermo Protocol, Article 18–26 of the Council of Europe Convention on Action against Trafficking in Human Beings. 68 According to Article 4 ECHR, no one may be held in slavery or servitude or may be required to perform forced or compulsory labour. European Court of Human Rights, Siliadin v. France (July 26, 2005) (appl. no. 73316/0). 69 Haveman, R. & Wijers, M. (2005). Note to the case of Siliadin v. France, in Rechtspraak Vreemdelingenrecht, no. 2005/99. 70 Rijken, C. & Koster, D. ‘A Human Rights Based Approach to Trafficking in Human Beings in Theory and Practice’, published as working paper on SSRN, available at: http://search.ssrn.com/ sol3/papers.cfm?abstract_id=1135108.

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These and other obligations are further elaborated upon in the Rantsev case.71 This case concerned ms. Rantseva, a woman who had been trafficked from Russia to Cyprus and who died under unclear circumstances having fallen from a window of a private home in Cyprus. She had entered Cyprus on an ‘artist’ visa and had worked as a performer in Cyprus. In Cyprus working as an artist is synonymous with working as a prostitute. The Rantsev case must be considered a landmark case because it explained and broadened the positive obligations for states under Article 4 ECHR. The court explained that having a legal provision prohibiting THB is not sufficient but that States need to have an appropriate legislative and administrative framework in place to combat THB. Furthermore, it stated that States have the positive obligation to take protective measures and the procedural obligation to investigate trafficking, including to seek international cooperation if required. For the country of origin, the Court further explicated that an obligation to investigate the recruitment, including the methods of recruitment, does exist. Following this decision of the ECtHR it is clear that the obligations for States in relation to THB also concern the protection of victims. The Court is less explicit on the state obligations for the prevention on THB. 4.3.2.1 The Obligation of Due Diligence It is relevant to consider how the doctrine on positive obligations of states – notably the obligation of due diligence – with regard to protection of victims of domestic violence has evolved.72 Under the Optional Protocol, the CEDAW Committee has elaborated on this in several communications. On the basis of General Recommendation 19 on violence against women, the Committee has recently concluded in other cases that states may be held responsible for the consequences of private acts of domestic violence if states fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation. This reflects that, from a human rights point of view, states are required to go beyond mere criminalization of a prohibited act. The ECHR ruling of 2009 in the case of Opuz v. Turkey represents a historical and authoritative step further in the interpretation of the positive obligation of states to protect (potential) victims with due diligence.73 For the first time in history, the ECHR ruled that the failure of the state to provide adequate protection to women who are obviously at risk of being violently abused by an intimate partner (in this case by an ex-husband), constitutes a violation of the right to life (Article 2 ECHR) and a violation of gender equality (Article 14 ECHR). States have a positive obligation to take preventive operational measures to protect an individual from the criminal

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Court of Human Rights, Rantsev, Cyprus and Russia (January 7, 2010) (appl. No. 25965/04). 72 Communication 6/2005, Vienna Intervention Centre against Domestic Violence and others v. Austria, 6 August 2007, Communication 5/2005, Vienna Intervention Centre against Domestic Violence and others v. Austria, 6 August 2007, and Communication 2/2003, A.T. v. Hungary, 26 January 2005. 73 European Court of Human Rights, Opuz v. Turkey (June 9, 2009) (appl. No. 33401/02).

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acts of another person where they “knew or ought to have known” of a “real and immediate risk to the life of (an) identified individual(s) from the criminal acts of a third party and they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.” With regard to the right to equal treatment, the ECHR referred to the importance of CEDAW when it argued that it has to take into account more specialized international instruments and decisions of other bodies, notably CEDAW, the Commission on Human Rights, and the Belém do Pará Convention (Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women). The ECHR explicitly underlined the authoritative status of these international human rights instruments, ruling that these instruments show that, under international law, “a state’s failure to protect women from domestic violence breaches their right to equal protection of the law and that this failure does not need to be intentional.” 4.3.2.2 The Obligations to Protect and Assist Victims and to Address the Root Causes of THB The third obligation identified by Obokata is the obligation to protect victims of THB, which encompasses an obligation to assist as well. Although most of the instruments on combating THB discussed above include a reference to the protection of victims, it is often in non-binding terms or from a prosecutorial perspective. At the (European) regional level, the Council of Europe Convention on Action against Trafficking is a positive exception to the practice of addressing the position of victims of THB as a secondary matter as this Convention takes the rights of the victims as the starting point. Chapter III, Articles 10–17, and especially Article 12 include the protective and assisting measures for victims of THB. The fourth obligation is to address the causes and consequences of trafficking. As was discussed before, one of the main causes of THB is an increased inequality as a consequence of globalization which leads to increased poverty of economically disadvantaged groups. Obokata touches upon a fundamental issue when it comes to states’ responsibilities and/or obligations. This requires addressing economic and social causes, the regulation of which is profoundly influenced by political as well as economic and financial interests.

4.3.3 Limitations of a Human Rights Based Approach to THB In the context of our argument in this chapter, focusing on legal preconditions to protect and assist victims of trafficking, the third and fourth obligations that Obokata identifies are most relevant to reflect upon more closely. Following Obokata, we wish to argue that a human rights framework can play a useful role as a compelling legal normative framework that can push states to effectively address THB. However, there are a few critical questions that deserve further consideration, both from a theoretical and a practical perspective. Firstly, there are profound limitations as regards the enforceability of the human rights obligations identified. Any human rights document is after all directed at

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states as the legal subjects upon whom certain obligations rest to protect or prevent violations of these rights, whereas the victim’s human rights are violated by individuals or groups of individuals. This means that a victim cannot file a claim for violation of his/her human rights by an individual or a non-state actor directly on the basis of these international human rights documents since the victim is not the addressee of these documents. The victim can only hold the state accountable for violations if the state did not comply with its obligation, in this case to protect against and prevent trafficking, under human rights law. Looking at other domains, like human rights conventions in the field of violence against women, we have seen that these state obligations have been specified. Furthermore a development towards making non-state actors more responsible in relation to (non-enforceable) human rights obligations is ongoing which might also have an effect in relation to responsibilities of individuals as regards violations of the human rights of victims of THB. Since these obligations are non-enforceable, it largely depends on the political will of states to act in conformity with their human rights obligations in relation to combating THB. Secondly, Obokata does not address the underlying question about the compatibility of these obligations. Where he states that a human rights based framework enables the conceptualization of a victim-centered approach, he does not address the tensions that are currently manifest in practice. The tendency to focus on criminalization in trafficking is dominant and therefore prosecutorial interests are often foregrounded, at the expense of protection of the victim and of victims’ rights and of addressing the structural causes and consequences of THB. We will return to the victims’ rights in the following sections of this chapter. At this point we can conclude that obligations that could be based on a human rights framework are not equally addressed neither in the legal domain nor in policybased practice. Assisting and protecting victims, as well as addressing the causes and consequences of THB are seen as a subordinate matter to the criminal law response. States increasingly articulate that a human rights based approach to THB should be adopted but they do not seem to be prepared yet to pay attention to fulfill all these obligations equally. As we will see in the next section, this does not mean that states, especially the countries of destination, have not adopted any provisions to address victim protection and assistance at all.

4.4 Legal Protection and Psycho-Social Assistance of Victims of Trafficking in Human Beings 4.4.1 Current Legal Provisions for Victim Protection and Assistance In general, over the past two decades, victims of crime have received more attention in law, particularly in criminal law and procedural law. The prime example of measures taken in the EU is the Framework Decision on the Standing of Victims

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in Criminal Proceedings and the Directive related to Compensation for Crime Victims.74 The general provisions on assistance and protection for victims of crime in these instruments include, inter alia, legal assistance, the right to protection, specific assistance, the right to receive information, respect and recognition. For victims of trafficking, these provisions for victim assistance and protection are in a way too general and not directly suitable for their special protection and other needs. The special needs of victims of trafficking are a consequence of the specific character of the crime of trafficking, as mentioned in Sections 4.2.2, 4.2.3, and 4.2.4. Given these specific aspects, it is clear that the ordinary protection and assistance mechanisms can be helpful, but are not sufficient and must therefore be extended with more specific measures applicable to victims of THB. The attention for victims of trafficking in countries of destination came only with the realization that testimonies of victims are indispensable when bringing a suspect of THB before the court in order to successfully prosecute the perpetrators, as other hard evidence is often not available. At the same time, it was acknowledged that victims are in a particularly vulnerable position, as the perpetrators often know the victims and their relatives, which makes them an easy target for threats of reprisals if the victims testify. The victims have after all been made dependent on the traffickers. They usually come from abroad; they do not know the country and generally do not trust the police. Moreover, when they come from abroad, they usually do not have a valid residence and/or work permit. Their illegal status makes them reluctant to report to the police out of fear of being deported. It strengthens their reluctance to testify against their traffickers for fear of reprisals. Therefore, many countries of destination have adopted the possibility to provide a residence permit to victims who collaborate with the prosecutor’s office and testify. The ultimate goal is to obtain more testimonies and potential evidence to ultimately convict the trafficker. In that way, protection and assistance to victims have been made dependent on the willingness of victims to cooperate with the authorities and are temporary: eventually most victims need to return after they have testified, even if they have reasons to fear for their safety in the country of origin. In the long run, victims’ interests become secondary to prosecutorial interests75 . In countries of origin, governments often do not recognize it as the state’s responsibility, let alone as an obligation to adopt measures to protect and assist (returned) victims. This is often left to NGOs. Although by now a range of measures has been adopted by several states to better

74 Council

Directive 2004/80/EC of 29 April 2004 relating to Compensation to Crime Victims, OJ L 261, 06 August 2004, pp. 15–18, Council Framework Decision of 15 March 2001 on the Standing of Victims in Criminal Proceedings, OJ L 082, 22 March 2001, pp. 1–4. Groenhuijsen, M.S. & Letschert, R.M. (2008). Compilation of International Victims’ Rights Instruments, 2nd (revised) edition, Nijmegen, Wolf Legal Publishers. 75 This risk is inherent to invoking criminal law. See: Römkens, R. (2006), Protecting Prosecution. The powers of criminal law to protect victims of stalking. Violence Against Women. 2, pp. 160–187.

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protect and assist victims of THB – measures that take into account their vulnerable position – there remains a gap between the law on the books and the law in practice. If the provisions in international instruments addressing victim assistance and protection measures were truly mandatory and have actually been implemented, it would oblige states to take the following measures at a minimum.76 As soon as there is an indication that a person is a victim of THB, that person must be informed of her rights. Protection of victims from the very first moment entails that the victim must be provided with accommodation in a safe house. If a victim of trafficking has no valid residence permit, s/he should be granted a (temporary) residence permit on humanitarian grounds, simply because s/he is a victim of trafficking. Whether or not the victim is willing to testify in criminal proceedings should be irrelevant. Deportation should be avoided. A reflection period, in which the victim can be supported through emergency care, should be provided to allow the victim to decide about filing a complaint against the trafficker and to give the victim some time to recover. Victims should be directly referred to a specialized NGO which arranges the accommodation, assistance, and aid. Victims of trafficking must be provided with specialized medical care with an eye to having contracted sexually transmitted diseases due to being forced to have unprotected sex; as well as legal aid, especially concerning the juridical consequences of filing a complaint and testifying. For victims of trafficking, it is extremely important that they are immediately and adequately informed of the criminal procedure and the decisions that are taken in that regard. For instance, it is important for victims to know whether the accused will remain in detention or not and what kind of restrictions he has in custody. Special attention should be paid to possible retaliatory threats to relatives of the victim. Assistance should be given in providing safety and security for relatives. This is what states at the least should do if they take the human rights based obligation seriously as a starting point to protect and provide assistance to victims of trafficking. Unfortunately, even on a global scale not even one state has effectuated these obligations. And even if a state has adopted special protection and assistance programs for THB victims that does not mean that the victims’ needs are always taken as a point of departure, as was discussed before. It is telling that alarmingly high percentages of victims decline assistance.77 We can conclude that there is a growing awareness among states that a criminal law response to THB is not sufficient. However, in order to give real priority to a human rights based approach towards THB, measures regarding protection of 76 These measures are mainly based on the, sometimes non binding, provisions on victim protection

in the Council of Europe Convention on Action Against THB, the Palermo Protocol, EU Directive 2004/81/EC on residence permits issued to third-country nationals who are victims of trafficking or who have been the subject of an action to facilitate illegal immigration or who co-operate with the competent authorities, 29 April 2004, and the Dutch and US national procedures for the protection of victims of THB, the B9-procedure and the US Trafficking Victims Protection Act. 77 Brunovskis & Surtees (2007, p. 41).

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and assistance to victims, as well as developing policies that address the causes and consequences of trafficking, have to be taken more seriously. In many (THB) documents, measures on victim protection and assistance are proposed, but often in a non-binding way. It depends on the political will whether these measures will be implemented or not. Ultimately the question is whether the measures taken do comply with the needs of the victims. As discussed before, victims of trafficking are a heterogeneous group and require more attention to individual needs. The majority of currently proposed assistance measures for victims of sex trafficking are guided by ideological positions regarding prostitution, sex work and trafficking, and do not necessarily match victims’ needs. In order to be more effective, the needs of the victims should be taken as the starting point. That leaves us with the question what is needed to make assistance to victims truly empowering.

4.4.2 A Victim Assistance and Protection Package (VAPP) for THB Victims Across countries we see that several measures are adopted to protect and help victims of THB, including provisions for a temporary residence permit,78 but usually measures can only be granted when victims cooperate as a witness and as long as their presence is required for the prosecution of the offender. This implies that migration status and assistance and protection are fully determined by decisions taken in a criminal procedure. When this procedure ends, the victim is left emptyhanded, regardless of the reason for termination and regardless of the needs of the victim. No matter how important the victim’s rights are that have been granted in the international and regional instruments on victims’ rights in criminal proceedings, they are limited when it comes to offering a broader package of support provisions that aims to go beyond the criminal procedure. It is necessary to de-link criminal law and migration law and to offer victims of trafficking the necessary protection and broader support and assistance irrespective of their status, whether they entered a country legally or not and regardless of their cooperation with the prosecuting authorities. A customized Victim Assistance and Protection Package (VAPP) should be developed to support victims. In this package assistance and protection measures should be made available that victims can choose from, depending on their specific needs at that very moment. The underlying principle is not how to obtain testimonies but how to achieve empowerment of victims and prevention in the long run. Victims of THB should be allowed to decide what kind of assistance they need. Adjusting assistance and protection according to these needs is a more effective way to prevent retrafficking of victims, to limit the consequences of THB for victims and to strengthen victims’ agency.

78 In

the Palermo Protocol, EC Directive 2004/81, Convention on Action against Trafficking, Council of Europe 2005.

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The VAPP should be made available to all victims of trafficking, whether (illegal) alien or national, whatever the form of exploitation and the characteristics of the perpetrator behind the trafficking.79 The decisive factor should be whether or not the person is a victim of the crime of THB, not the legal position in the country or the form of the exploitation or the characteristics of neither the traffickers, nor the cooperation with the authorities in a criminal procedure. The content of a VAPP needs to find its basis in victims’ needs. The prevention of violations of victims’ human rights needs to be the focal point in order for any intervention to be helpful to the victims of THB.80

4.5 Human Rights and the Use of Human Security as an Instrument to Identify the Needs of Victims of Trafficking To identify the needs of the victims, in order to be able to better serve the victims of THB, we propose that the concept of human security might be helpful as a way to cross the bridge between a narrow human rights based framework, that primarily identifies states’ obligations, and an expanded interpretation of human rights obligations (including obligations based on victim rights) that allows to include a perspective on the protection of and assistance to victims and on how to address the causes of victimization, in this case of trafficking. Human security is a relatively new concept that was internationally launched in the Human Development Report of 1994.81 The concept is gaining ground in Europe as a conceptual tool to reconsider issues regarding safety and international conflict in a way that allows taking individual citizens’ needs for security into consideration, not only state security.82 Although there is no internationally accepted overall definition of human security, it can be stated that the two major components of the concept are freedom from fear and freedom from want.83 It expands the focus from the security centered on states to including the security of individuals, 79 This

raises new questions on how to identify the victims. As appears from the research of Brunovskis and Surtees, victims who, on the basis of the definition in the Palermo Protocol, can objectively be identified as victims do often not correspond with the subjective experience of the victims, because a complex of factors play a role in whether they regard themselves as victims of THB or not. Brunovskis & Surtees (2007, pp. 135–146). 80 The fact that the needs of victims must be recognized and taken into consideration is reflected in the publication of the UNODC, Needs Assessment Toolkit on the Criminal Justice Response to Human Trafficking, New York, 2010. 81 UNDP, Human Development Report, 1994, Oxford, Oxford University Press. 82 See A Human Security Doctrine for Europe. The Barcelona Report of the Study Group on Europe’s Security Capabilities, Barcelona, 15 September 2004 (presented to EU High Commissioner for Foreign and Security Policy Javier Solana), p. 10. 83 On the definition of the Human Security concept, see Human Security Centre (2005). Human Security Report 2005, Canada, The University of British Columbia, p. VIII, Human Security Now, Commission on Human Security, Protecting and Empowering People, New York, NY, 2003,

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which means that humans are at the heart of the concept of security. In a recent EU expert report on a new European Security Strategy, it has been argued that moral, legal, and pragmatic reasons point to the need of using human security as a basis for future policy and legal developments in the realm of global security. Morally speaking security refers to the right of common humanity to live with dignity and safety. Legally speaking it is argued that basic human rights treaties not only give the right to a state but also impose an obligation on the state to concern itself with the human security of its citizens. It is considered a form of realism, not just idealism to address the causes of insecurity at its source. As guiding principles, the report points, inter alia, to the primacy of human rights and to a bottom-up approach that takes account of the most basic needs of the people who are affected by violence and insecurity.84 If we apply this to trafficking for sexual exploitation as a profound threat to the security of many individuals, mostly women, it calls for an understanding of the growing vulnerability of poor people, notably women, to suffering from economic hardship and poverty which forces them to find new ways to generate income to support their (extended) family. The freedom from fear of being trafficked or of being exploited is the ultimate aim when applying the concept of human security in relation to THB. In the process of realizing this aim, the concept of human security might be helpful to identify the needs of the (potential) victims in order to develop the specific content of a VAPP. Trafficking for sexual exploitation is a telling example of how threats to individuals’ human security and the threat to global security via the expanding powers of organized crime and informal criminal networks come together. It is vital to understand the nature of the threats to human security that victims have experienced in order to be able to effectively address trafficking as one of the growing threats to international security and stability. It implies that it is imperative to give a voice to the victims, to understand their reasons to migrate, and to their needs for assistance and protection in the country. Applying the concept of human security as a guiding perspective when interpreting legal obligations might be helpful to balance the focus in migration law between the interests of the state to protect its borders and the interests of the migrating individual. The ultimate goal is to create legally valid options for these women to improve their living standard through migration, without making them more vulnerable to trafficking practices. Migration is traditionally considered from a macro-economic and/or state security point of view. It is considered an economic necessity in times of labor scarcity and a risk or threat to a state’s security when the labor market has enough supply. This focus on states’ economic and social concerns leads to restrictive immigration policies which in fact contribute to the proliferation of traffickers and smugglers. This then brings about a vicious circle in which migrants, traffickers, smugglers,

pp. 1–14, Tadjbakhsh, S. & Chenoy, A. (2007). Human Security. Concepts and Implications, London, Routledge, pp. 39–71. 84 Barcelona document, pp. 9–10, 17.

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and states’ border patrols are caught. When considered from the perspective of the migrant and taking the concept of human security into account it can be argued that migration is a way to protect and achieve human dignity and security, for instance, when migrants flee a country in war or when they try to improve their dire economic situation or (try to) escape from poverty. The latter perspective allows addressing the question of empowerment of individuals which can only take place when a basic form of security is guaranteed through more open migration laws giving these women a possibility to migrate legally. The same reasoning can be applied to victims who have been exploited in destination countries, as human security (the freedom from fear) is a way to focus on the needs of the victims. The challenge is to concretize the concept of human security for victims of trafficking and to use it as a tool to translate it into the needs of victims and, in this way, to contribute to deciding on the content of the VAPP. As indicated above, protection measures for victims of THB so far have mainly been motivated by prosecutorial (i.e. state) interests. Here again, a move from state security to human security can bring the victim to the forefront and give meaning to the state’s obligation to protect and assist victims of trafficking. The concept of human security aims at the protection and the empowerment of the individual as well as society as a whole. Personal security relates to the protection against violence, against threats from states or other actors, and other events which are beyond the control of peoples and communities. Empowerment of individuals and communities is aimed at creating an environment in which people can make decisions based on their specific needs and desires and which builds on the efforts and capabilities of those directly affected. Defining what affects trafficking victims’ insecurity is important when identifying the needs of victims that have to be met in order to be able to restore a basic sense of human security. Several dimensions can be identified, such as threats and reprisals, medical and psychological afflictions and/or conditions, lack of a social network, their initial willingness to work in prostitution, the possibility of redress.85 Further empirical research on the needs of victims of THB is required to fully identify these needs and thus to decide on the content of a VAPP as a way to restore the security of the victim.

4.6 Conclusion The crime of trafficking in human beings is often committed across borders. It requires a creative and often courageous reply from both states and international non-governmental organizations. Until now, the activities to combat trafficking in human beings have been primarily rooted in criminal law. This reflects the focus on states’ prosecutorial and punitive strategies to protect the state’s safety, a strategy that can only to a limited extent be sensitive to the needs of victims. Victim assistance and protection measures, if adopted at all, have been pushed towards the 85 Rijken,

C. & Van Dijk, J.M. (2007) ‘Hulpverlening aan slachtoffers van mensenhandel; mensenrecht of beloning’, Justitiële Verkenningen, 7, pp. 23–38.

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margins of current policies on trafficking. An approach needs to be found beyond criminal law that brings the position of the victim more to the forefront. From a human rights perspective, it can be argued that states have the obligation to go beyond a strictly punitive approach and develop preventive and protective measures for victims. However, when taking human rights law as a legal framework to respond to trafficking, the different state obligations that can be argued to flow from it illustrate the imbalance between prosecutorial interests and victims’ interests. The measures currently undertaken often fail to take the needs of the victims as the starting point. We have suggested that deploying the concept of human security can provide an important step forward in developing a more integrated and comprehensive policy to combat trafficking; it not only takes the victim’s security as a frame of reference, but integrates victims’ security and victims’ needs. Since the group of victims of THB is far from homogeneous, it is important to tailor protection and assistance measures to the diverse needs of the victims. A package should be available from which the victim can choose what s/he needs in her/his particular situation. We have called this a Victim Assistance and Protection Package (VAPP). To determine the content of this package, further empirical research on the needs of victims of THB is required. Such research will provide a better understanding of victims’ reasons to decide to make use of the assistance that is offered or not, and what victims need for their empowerment in order to become less vulnerable to traffickers, to prevent revictimization, and to curb the negative consequences of trafficking.

Chapter 5

Transnational Organized Crime, Civil Society and Victim Empowerment Jan van Dijk

Corruption hurts the poor disproportionately by diverting funds intended for development, undermining a government’s ability to provide basic services, feeding inequality and injustice, and discouraging foreign investment and aid. Former Secretary-General Kofi Annan1

5.1 Introductory Remarks Organized crime has over the past 30 years been expanded and transformed by increased globalization.2 Like legitimate business people entrepreneurial criminals are increasingly free to move their operational activities to those places with the best chances for high profits.3 Globalization allows them to operate on the global markets in illicit products such as drugs, cheap labor or firearms.4 E-commerce has opened unprecedented opportunities for committing sophisticated fraud across borders or selling child pornography.5 In addition, electronic banking allows criminals to stash away illegal assets in financial havens out of reach for governments where predicate offenses have been committed.

J. van Dijk (B) International Victimology Institute (INTERVICT), Tilburg University, 5000 LE Tilburg, The Netherlands e-mail: [email protected] 1 Kofi Annan, in his statement on the adoption by the General Assembly of the United Nations Convention Against Corruption. 2 Levitsky, M. (2003). ‘The Dark Side of Globalization’, International Studies Review, 5, 253. 3 Gros, J.-G (2003). ‘Trouble in paradise; crime and collapsed states in the age of globalization’, British Journal of Criminology, 43, 63–80. 4 Raustiala, K (2001). ‘Free Trade Pact a Boon to Drugs Dealers’, UCLA Today, 22 May, 2001. 5 Grant, A. David, F., & Grabrosky, P. (1997). ‘Child Pornography in the Digital age’, Transnational Organized Crime, 3, 171.

99 R. Letschert, J. van Dijk (eds.), The New Faces of Victimhood, Studies in Global C Springer Science+Business Media B.V. 2011 Justice 8, DOI 10.1007/978-90-481-9020-1_5, 

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Emerging forms of transnational organized crime pose serious problems for domestically oriented law enforcement and judiciary institutions. Governments are handicapped in combating transnational crime by their reliance on frameworks and tools designed for the control of domestic crime on national territories. Existing legal mechanisms for international cooperation in investigation and prosecution are found to be wanting. To tackle transnational or global crime, governments are urgently in need of more adequate legal and operational tools. Towards the end of the last century consensus emerged about the need for a new global framework for cooperation against organized crime.6 In 2000, the members of the United Nations assembled in large numbers in the city of Palermo to sign the United Nations Convention against Transnational Organized Crime (UNTOC) and its protocols against human trafficking and smuggling of migrants. For the mayor of Palermo, Leoluca Orlando, the High Level Signing Ceremony, attended by several heads of state and dozens of ministers, marked a jubilant confirmation of his lifelong struggle against the organized crime families in Sicily. In his view Palermo would from now on be known as the capital of the global fight against the mafia instead of as the world’s capital of organized crime. In his book Fighting the Mafia and Renewing Sicilian Culture, Orlando describes how the fight against the mafia requires both the commitment of specialized investigators, prosecutors and judges and of the victimized local community. As mayor, Orlando himself mobilized the local community of Palermo against the local mafia groups of the city.7 To visualize the need of such twinned approach, he invokes the image of a Sicilian Cart with two wheels, one of law enforcement and one of civil society. If one wheel turned without the other the cart would go in circles. The fight against the mafia in Italy relies on the use of specially tailored tools of criminal justice.8 But lasting progress in the fights against entrenched forms of organized crime can only be made when professional and dedicated law enforcement goes hand in hand with political determination and civic commitment. The adoption of the UNTOC in 2000 raised expectations of improved collaboration in global action against transnational organized crimes.9 The Convention laid the legal groundwork for better law enforcement and judicial cooperation against organized crime. It also includes agreements on international cooperation in implementing the Convention. Special articles foresee support for capacity building for specialized law enforcement and prosecutorial agencies in developing countries and countries in transition. States Parties are obliged to provide technical assistance to 6 Williams, P. & Vlassis, D. (eds.) (2001). Combating Transnational Organized Crime: Concepts, activities and responses, London, Frank Cass. 7 Orlando, L. (2001). Fighting the Mafia; and Renewing Sicilian Culture, San Francisco, CA, Encounter Books. 8 Spina, A. La. (2008). ‘Recent Anti-Mafia Strategies: The Italian Experience’, in: D. Siegel & H. Nelen (2008), Organized Crime; Culture, Markets and Policies, Springer. 9 Albrecht, H.-J. & Fijnaut, C. (2003). The Containment of Transnational Organized Crime. Kriminologische Forschungsberichte, Freiburg, Max Planck Institute for Foreign and International Criminal Law.

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developing countries to assist them in meeting their needs for the implementation of the Convention. To this end a special account was to be set up by the UN secretariat, to which regular voluntary contributions should be made, including a percentage of all confiscated assets from criminal groups.10 To set an example and ensure that this provision would not remain a dead letter, the Italian government pledged at the Palermo Conference that it would in the coming years allocate 20% of all assets confiscated from Italian mafia groups to this account. In anticipation of the Convention’s adoption, the Member States had already agreed in the final Declaration of the quintennial UN Congress on Crime Prevention in Vienna earlier in 2000 on concrete targets in their fight against organized crime. According to the Vienna Declaration Member States would cooperate with each other and the UN secretariat to provide a comprehensive global overview of organized crime groups. Following the model of the Millennium Declaration, the Vienna Declaration established 2005 as target year for a significant reduction in the numbers of trafficked persons and smuggled migrants as well as in the illicit manufacturing of and trafficking in illicit firearms. If this was not attained, Member States committed themselves to reassess the measures implemented (A/CONF.187/4/Rev 3). With the adoption of the UNTOC the stage seemed set for a well-funded, targeted and closely monitored global campaign against the main forms of transnational organized crime in the years ahead. Since 2000 large numbers of Member States have indeed ratified the Convention and its three protocols (in 2001 a third supplementary protocol against trafficking in illicit weapons was adopted). Consequently all four instruments have entered into force rapidly. In 2003 this package of new international criminal laws was expanded with the UN Convention against Corruption which also rapidly entered into force. From a legalistic perspective the Big Five legal instruments are a major breakthrough in the development of international criminal law. As foreseen in the UNTOC a Conference of States Parties was convened that oversees its implementation and may suggest possible amendments. This Conference has been convened regularly in Vienna at the headquarters of UNODC. Deliberations at the committee have, however, to this day mainly centered on procedural issues. Several working groups have been set up, such as a permanent one on international cooperation and an interim one on technical assistance. A special working group has been set up to discuss the implementation of the trafficking protocol. Each of these working groups have in turn set up expert groups on specific subtopics. On behalf of working groups and expert groups the secretariat has sent out questionnaires consulting Member States on their needs and best practices. None of these deliberations, however, seems to have resulted in agreement on a strategy to implement the convention, let alone a comprehensive Action Plan or Action Plans concerning selected topics. Somewhat surprisingly, no follow up has been given to the establishment of an account for capacity-building as foreseen, and special donations from Italy

10 Article 30, 2 c of UNTOC reads: “to that end States parties shall endeavour to make adequate and

regular voluntary contributions to an account specifically designated for that purpose in a United Nations funding mechanism.”

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as pledged at the Palermo Signing Conference have never been made. The targets for reducing organized crime, mentioned in the Vienna Declaration, have not been revisited at the subsequent UN Crime Congresses in Bangkok in 2006 or Salvador (Brazil) in 2010. In the Conference of States Parties of the UNTOC the previously agreed-upon targets seem to have been completely forgotten. In 2008 the Conference of State Parties at its fourth session expressed “its concern at the information contained in the report of the Secretariat on the development of tools to gather information from States on the implementation of the Convention and each of its protocols thereto, which showed persisting gaps in the implementation of the Convention and its protocols” (UNODC, CTOC/COP 4 Decisions). Since then more countries have sent in information but such survey, however wellexecuted, falls far short of a serious mechanism to follow up and monitor operational strategies or action plans. Some Western countries including the USA and Sweden, speaking on behalf of the European Union, have recently argued for the adoption of a review mechanism. As a preparatory step they have also agreed to pilot test such mechanism on a voluntary basis in their own countries. There is little room for optimism that their proposal will shortly meet with the approval of the Conference of State Parties. The Salvador Declaration, adopted at the end of the Twelfth United Nations Congress on Crime and Crime Prevention on 12–19 April, 2010 contains ominously weak language on the said initiative.11 It is theoretically possible that implementation on the ground, in spite of a lack of commitment at high political level, has yet been fairly successful. Mention could be made of a flurry of promotional and educational activities against human trafficking including those funded with a special gift of Bahrain (the UN Gift). The global fight against this form of organized crime received a boost from legislation passed by the USA requesting the administration to publish annual ratings of foreign countries on their anti-trafficking efforts (known as the Trafficking in Persons Reports). This legislation mandates the government to impose sanctions on non-complying countries. This action by the USA administration seems to have prompted many countries to ratify the UN Protocol.12 But what about real legislative and operational implementation? The Global Alliance Against Trafficking in Women (GAATW), an umbrella organization of NGOs supporting victims of human trafficking, issued on 13 October 2008 a statement criticizing weak implementation of the anti-trafficking protocol and lack of adequate review mechanisms.13 In a report of UNODC of 2008

11 Article

19 of the Salvador Declaration calls for Member States that have not yet done so to consider ratifying the UNTOC. It then continues as follow: “We also take account of ongoing initiatives aimed at exploring options regarding an appropriate and effective mechanism to assist the Conference of the Parties to the United nations Convention against Transnational Oragnized Crime in the review of the implementation of the Convention” (United Nations, A/CONF.213/L.6/Rev.2). 12 Van Dijk (2007). 13 Statement on a monitoring mechanism for the United Nations Convention against Transnational Organized Crime and each of the protocols thereto with specific attention to the Protocol to Prevent, Suppress and Punish Trafficking in Persons (the Human Trafficking Protocol): “However, the current review process to UNTOC does not provide for a comprehensive review of States Parties

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the conclusion is drawn that from a global perspective the crime of human trafficking remains largely unpunished. Only in a handful of mainly Western countries cases of human trafficking have been systematically investigated and prosecuted.14 These are worrying signals considering that they relate to the type of organized crime that has received by far the most attention from the world community. It seems unlikely that more progress has been made in the fight against other forms of organized crime that are less dramatic in their human consequences. There are few indications that transnational organized crime has been brought under control. In 2010 the UNODC released a report documenting the destabilizing impact of trafficking in cocaine on the Andean region, West Africa and Mesoamerica and of trafficking in heroin on South West and Central Africa, South East Europe and South East Asia (UNODC, 2010) and a more encompassing report on the threat posed by transnational organized crime (UNODC, 2010/2) largely based on open source information.15 Whether progress has been made in reducing human trafficking, smuggling of migrants or other types of organized crime such as drugs trafficking is at any rate impossible to assess with any degree of certainty for lack of a credible monitoring system. As said, no mechanism of independent monitoring has met with the approval of the States Parties, let alone that it was put in place. Neither has any work been done on the scientific global overview of trends in organized crime envisaged in the Convention and as explicitly agreed upon in the Vienna Declaration of 2000. Proposals from the UN secretariat in 2004 to start preparations for a regular World Crime Report, although welcomed at the 2004 Crime Prevention Congress in Bangkok in the final Declaration, were rejected by the Member States at the meeting of the Crime Commission in 2004 as well at later occasions. In the absence of a review system as well as of a monitoring system, there is no way to determine to what extent the UNTOC has been properly implemented and starts to have the desired effects. As said, the entry into force of UNTOC in 2003 created unprecedented opportunities for more cross-border cooperation in criminal justice on a global scale. Since then many meetings have been convened in Vienna and an avalanche of sophisticated manuals, toolkits and model laws has been produced and disseminated by the UN secretariat. And yet the conclusion seems inescapable that the UNTOC has largely remained a dead letter. It is functioning as just another case of soft law

anti-trafficking responses. In fact, it is often used as a means of promoting the “great work” of a country, rather than reviewing how the State is implementing the Protocol and the impact this is having. Furthermore, this process does not provide adequate means for civil society engagement. We believe that the existing information gathering and implementation review mechanisms to UNTOC neither offer a means of highlighting progress on implementation of UNTOC made by States Parties nor provide adequate space for improvement on implementation measures taken”. http://www.gaatw.org. 14 UNODC (2009). Global Report on Trafficking in Persons. 15 UNODC (2010). Crime and Instability; Case studies of transnational threats, UNODC (2010). The Globalization of Crime: A Transnational Organized Crime Threat Assessment.

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codifying international best practices in criminal justice which Member States can use to their discretion rather than as the Treaty with binding obligations for all States Parties that it formally is. It seems therefore unlikely that the first jubilee of the UNTOC in 2010 will be commemorated in a similarly spectacular way as its adoption in Palermo 10 years ago. To paraphrase the famous dictum of the Prince De Ligne at the Vienna Congress in 1814, the diplomats representing their countries in Vienna keep dancing without making any real progress.16 In this article I will reflect on the slow implementation of the UNTOC and explore which political factors prevent Member States from following up the widely applauded UNTOC more diligently. I will try to understand the deeper reasons for the current impasse. The legitimacy of UNTOC implementation has in my view been undermined by its association with agenda’s of national security in the aftermath of 9/11. I will argue that the legitimacy of the fight against transnational organized crime is intrinsically weak because of the lack of a clear and universally persuasive victim narrative. I will subsequently explore avenues for a strategic reorientation of the fight against organized crime. I will argue, in short, that the UNTOC is an international treaty in search of a victim-centred constituency, outside the world of international diplomacy, that can start canvassing for its implementation.

5.2 Organized Crime as Security Threat Organized crime has in many countries including the USA often been framed as a threat to national security emanating from abroad (the so-called alien conspiracy theory). The concept of transnational organized crime was first put prominently on the agenda of the UN by former US president Bill Clinton in his address to the General Assembly of the United Nations in 1995. In this address former President Bill Clinton expressed concern about emerging asymmetries between international crime and the domestically oriented rules and practices of criminal justice. His analysis was subsequently endorsed by major European nations at a meeting of the G8 in Lyon. At this meeting the political foundations were established for the elaboration and subsequent near universal adoption of the United Nations Convention against Transnational Organized Crime and its protocols. From the outset transnational organized crime was seen by the American administration and its allies as

16 “Le

congrès danse beaucoup, mais il ne marche pas”. Prince de Linge on the lack of progress at the Vienna Congress in 1814. In the same vein the Italian Cardinal Pappalardo once castigated the Italian government for its lack of real action against the mafia citing a saying from Roman times: “While S. is burning, Rome keeps talking”. The former Italian magistrate G. Polimeni who used to represent Italy during negotiations of many international treaties on international law both in Europe and at the UN between 1980 and 2000 noticed the creeping dominance of diplomats over criminal justice experts in the deliberations at the Crime Commission and Crime Congresses of the UN, a process which he described as the “diplomatization” of the commission. This process has led to the marginalization of NGOs and individual experts at this forum. Van Dijk, J.J.M. (2010). Message to the Liege Colloque, in: Kellens & Dantinne, Scientific NGOs and Crime Policy, Nijmegen, Wolf Legal Publishers.

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a threat to the sovereignty of the state and the rule of law.17 Global crime was unequivocally construed as a national security concern and not as a mere crime problem. Law enforcement was fused with national security missions, strategies and technologies.18 A leading American scholar on these issues, Louise Shelley, positioned global action against transnational organized crime in the following words: The recently mounted attack on transnational organized crime is, indeed, partly a consequence of the need for security bodies (such as the CIA, KGB and the Mossad) and international organizations (such as the U.N. and the Council of Europe) to develop new missions in the post-cold War era. While the world focused on such highly visible problems as the superpower conflict or regional hostilities, the increasingly pernicious and pervasive transnational crime that now threatens the economic and political stability of many nations was ignored. Long-term neglect of this problem means that the world now faces highly developed criminal organizations that undermine the rule of law, international security and the world economy and which, if they are allowed to continue unimpeded, could threaten the concept of the nation-state.19

After 9/11, American officials have highlighted linkages between organized crime and terrorist groups such as Al Qaeda.20 The fight against transnational organized crime was subsequently subsumed under the broader objective of the war against terrorism. Much attention was focused on the alleged linkages between terrorist groups and the global trade in drugs. In 2002 the Executive Director of UNODC was for the first time invited to brief the Security Council on the crime and drugs situation in Afghanistan. The issues on the agenda of that meeting were linkages between terrorism and the production and trafficking of drugs. Ever since, drugs and crime issues have been regularly discussed in the Security Council as emerging security threats.21 As mentioned above, in 2010 UNODC published a report on trends in organized crime, mainly consisting of an update on the main flows of drugs trafficking. The report was initially titled Crime and Instability; case Studies of Transnational Threats. At a meeting in Vienna in the summer of 2010, coorganized with the World Bank, UNODC staff announced that the report would soon be discussed in a meeting of the Security Council. The phenomenon of transnational

17 R.

Godson (2003). Menace to Society; Political Criminal Cooperation Around the World, Transaction Publishers. 18 P. Andreas & R. Price (2001). ‘From War Fighting to Crime Fighting: Transforming the American National Security State’, International Studies Review, 3 (Autumn), 31–52. 19 Shelley, L. (1995). ‘Transnational Organized Crime: An Imminent Threat to the Nation State’, Journal of International Affairs, 48. 20 Schmid, A. (2004). ‘Links between terrorist and organized crime networks: Emerging patterns and trends’, in: Vlassis, D. (ed.). Trafficking: Networks and logistics of transnational crime and international terrorism. Proceedings of the International Conference on ‘Trafficking: Networks and Logistics of Transnational Crime and International Terrorism’. Courmayeur Mont Blanc, Italy, 6–8 December 2002. 21 On 9 December 2009 the Security Council adopted a Presidential Statement calling for “greater action against drugs trafficking as a threat to international security.” http://www.unodc.org.

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organized crime has over the years been consistently framed by UNODC as a threat to national security.22 Transnational organized crime is now widely understood as a threat to national security rather than as a threat to the lives of ordinary people, individually or collectively. The association of UNTOC implementation with the fight against terrorism and/or political instability seems to have raised the political profile of the UNTOC but, paradoxically, to have weakened political support for its operational implementation. In the international domain as well as domestically, secret intelligence gathering has substituted for the exchange of law enforcement and judicial information. Covert cooperation between security services has taken priority over mutual legal aid with its inbuilt safeguards for the rights of individual citizens. One of the consequences of the response to 9/11 has been diminished interest in government circles in the type of international judicial cooperation, facilitated and promoted by the UNTOC, as well as in building capacity for the administration of criminal justice in developing countries. Also, interest in UN-based comparative, criminological research seems to have waned. Crime statistics have always been politically sensitive but this is even more the case now that they are presented as information on security concerns. Unsurprisingly, proposals for operational strategies, action plans and review mechanisms are met with suspicion at the United Nations if implementing the UNTOC is presented as serving the national security interests of core players. In the reconstruction of Findlay,23 fledgling international criminal justice has been successfully “hijacked” by the USA and its coalition partners to advance the war on terrorism. With respect to the UNTOC, little evidence can be seen of such instrumentalization of international criminal justice. If this would have been the case, UNTOC implementation would have attracted more political attention and funding. Rather, concerns about global terrorism seem to have overshadowed the UNTOC project and to have radically lowered the priority of its implementation. The marginalization of the UNTOC is an unintended side-effect of the radical reordering of political agendas in the aftermath of 9/11. The fight against transnational organized crime, an overriding international priority in 2000, has since then been sidelined by the war on terrorism. The fusion between the “low politics of law enforcement” with the “high politics of national security” may have raised the temporary interest and support of powerful bodies such as the Security Council. But this upgrading has reinforced the image of organized crime as a threat to national

22 The

report concludes that the UN conventions against drugs, organized crime and corruption have failed to address the national security implications of transnational crime: “Too often, work under the Conventions has been limited to law enforcement, while transnational organized crime cannot be reduced to a criminal justice issue. The Conventions provide a bedrock, but they do not constitute a global strategy, and they do not frame drug trafficking as a matter of international security.” The report ends with a plea for comprehensive global action against organized crime “making use of the full range of military, development and crime prevention tools available” (UNODC, 2010, Crime and Instability, Vienna, February, 2010). 23 Findlay, M. (2008). Governing through Globalized Crime, Futures for International Criminal Justice, Cullompton, Devon, Willan Publishing.

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security rather than to the interests of real victim communities and this has reduced the political standing of the UNTOC. Invitations to meetings of the Security Council for UNODC staff have come at the considerable cost of reducing the legitimacy of UNTOC implementation in the long term.

5.3 Organized Crime and the Lack of Victim-Based Legitimacy The question must be addressed why the international law enforcement community, the primary stakeholder of the UNTOC, has been unwilling or unable to resist the subsumption of the fight against transnational organized crime under the war on terrorism. In my view, an important explanation is that the investigation and prosecution of transnational organized crime suffers more than that of common crimes such as homicides or rapes from reduced legitimacy. The project of UNTOC implementation could probably be so easily derailed because it suffered from a legitimacy deficit from the outset. In his seminal studies critical criminologist Schur (1965) raised doubts about the legitimacy of laws criminalizing “crimes without victims.”24 Such “victimless crimes” are defined by him as crimes without evident individual victims, such as abortion, homosexuality, drugs addiction and prostitution. Schur’s analysis of the problematic stature of “victimless crimes” seems even more valid now than it was at the time of writing. In modern, secularized nations awareness of the suffering of victims has become the principal justification of interventions by criminal justice.25 This trend towards victim-centeredness has been dubbed the “victimilization” of criminal law. It is often, rightly or wrongly, critiqued for having fuelled penal populism and new punitiveness.26 Another, less obvious implication of the victim focus of criminal policies would seem that it has further reduced the legitimacy of criminalizing and prosecuting victimless crimes. In a secular, post-modern culture a victim focus legitimizes the use of power by criminal justice institutions. Without such focus, its legitimacy can easily be put into question.27

24 Schur,

E.M. (1965). Crimes without Victims, Prentice Hall.

25 Boutellier, H. (1999). Crime and Morality; The Significance of Criminal Justice in Post-Modern

Culture, Dordrecht, Kluwer Academis Publishers; Garland, D. (2001). The Culture of Control, Crime and Social Order in Contemporary Society, Oxford, Oxford University Press. 26 Buruma, Y. (1994). ‘The Victimalization of Criminal Law’, In: How Punitive is The Netherlands? Arnhem: Gouda Quint (in Dutch) (Dutch title: De victimalisering van het Strafrecht). 27 Victim-based legitimacy implies that criminal justice will be more strongly supported if it is perceived to be at least partly directed at serving the interests of actual and potential victims (victim communities). It follows from this notion that criminal justice can enhance its public standing by directly serving tangible victim interests such as respect, information, compensation and voice in criminal proceedings (Reemtsma, J. Ph. 1998). In the Cellar, Hamburg, Rowolt TaschenbuchVerlag (in German) (German title: Im Keller); Prittwitz, C. (1999). The Resurrection of the Victim in Penal Theory. Buffalo Criminal Law Review, 3, 109–129; Dijk, J.J.M. van (2009). Free the Victim; a Critique of the Western Conception of Victimhood, International Review of Victimology. 2009, 16, 1–33).

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Schur’s own opposition against the criminalization of victimless crimes was not based solely on moral consideration. An important point of his analyses is that if no interests of individual victims are at stake, few citizens will come forward to assist law enforcement agencies as victim-witnesses or complaining bystanders. This lack of victim-witness support makes the investigation and prosecution of such crimes difficult. Packer (1968) characterized victimless crimes as: “crimes that do not result in anyone feeling they have been unjustly treated in such a way that they feel called upon to bring the crime to the attention of the authorities.”28 This lack of civil support forces investigators to apply expensive, special techniques to actively collect evidence themselves. They are forced to tap phones, use informants, employ undercover activities or use sophisticated electronic bugging devices. The reliance on covert techniques of detection creates, according to Schur, a risk of infringements on civil liberties and of bribetaking or extortion. Such official misconduct undermines the respect for state institutions. Schur’s analysis leads him to the conclusion that the legitimacy of laws against victimless crimes is relatively weak and that their enforcement can easily compromise involved state institutions. Although Schur’s notion of victimless crimes was not applied by him or other authors to organized crime in its current transnational manifestations, his analyses seem to hold a lesson for the global fight against transnational organized crime. First, it can make us aware that investigations of organized crime often suffer from the same lack of support from complaining victims as the consensual crimes examined by Schur. Investigations against organized crime groups are rarely triggered or sustained by voluntary complaints from ordinary citizens who have been directly victimized. Some forms of organized crime such as illegal gambling can indeed be regarded as relatively victimless. Other forms, such as extortion, victimize citizens but these will often refrain from issuing complaints for fear of retaliation. Investigations into organized crime are for that reason almost always largely based on the use of special investigative techniques. Not coincidentally the UNTOC specifically obliges States Parties to introduce a wide range of such techniques in their legal systems such as controlled delivery, electronic surveillance and undercover operations.29 For this reason many of Schur’s observations of the possible risks involved in investigating victimless crimes apply seamlessly to anti-mafia investigations. The legitimacy of such investigations can easily be compromised by the overzealous use of special techniques or corruption. Many countries have over the past two decades been plagued by scandals about derailments of anti-mafia units undermining support for such activities. Many examples can be given of alleged or real abuses by anti-mafia units across the world.30 In Belgium the use of undercover

28 Packer, Herbert L (1968). The Limits of the Criminal Sanction, Stanford, CA, Stanford University

Press. 29 UNTOC,

Article 20 Special Investigative Techniques. C.J.C.F. & G.T Marx (eds.) (1995). Undercover, Police Surveillance in Comparative Perspective, The Hague, Kluwer. 30 Fijnaut,

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agents became controversial after it led to a corruption case.31 In the Netherlands large-scale operations against organized crime led to a Parliamentary Enquiry on the use of informants/undercover operations which led to the resignation of several prosecutors and the ministers of justice and the interior in 1995.32 Although investigations into mafia groups continued, the impetus in the fight against organized crime in the Netherlands was lost for many years. Crucially important in this regard seems Schur’s observation that derailments are especially damaging for the legitimacy of investigations of crimes without complaining victims. In other words, investigations into victimless crimes are hindered by the lack of complaining victims in two ways. First, the absence of complainants forces the police to use intrusive techniques of investigation. Secondly, the use of such intrusive techniques cannot be justified to the public with reference to the need to protect vulnerable and innocent victim communities. This double bind makes protagonists of anti-mafia campaigns vulnerable to innuendo about their true motives. The intrinsic vulnerability of anti-mafia campaigns can be illustrated by the notorious Scáscia incident in 1987 in Italy. At the height of the preparation of the maxi-trials against the mafia the highly acclaimed Sicilian novelist Leonardo Sciascia criticized in Il Corriere della Serra the emergence of what he named the “anti-mafia professionals” (public officials and politicians making a career out of fighting the mafia).33 Although his motives have never been fully revealed, his criticism seems to have been motivated by a feeling of unease about the ulterior motives of the main actors. Were they really committed to fight serious offenders or were they looking for personal glory? In other words, he expressed doubts on the legitimacy of the high profile fight against the mafia in Italy. As said, Schur’s analysis of the dubious legitimacy of investigating victimless crimes seems relevant for a study of the stagnant implementation of the UNTOC. In many cases of transnational organized crime such as drugs trafficking opinions of who are the victims can differ. From the perspective of production countries those living under the terror of organized groups can be seen as victims. In destination countries many will see drug addicts as primary victims. The visibility of the victims of organized crimes is often diminished by its transnational nature. This is for example clearly the case with money-laundering operations in Western countries. Public opinion is hard pressed to understand that actions against banks facilitating money-laundering by criminal groups operating abroad serve concrete interests of victim communities in these countries (Global Witness, 2009).34 The mistaken notion that organized crime is “victimless” is reinforced by the fact that in major 31 Fijnaut,

C.J.C.F. (1983). De Zaak Francois, Antwerpen, Kluwer. C.J.C.F. (1996). ‘Over de opzet, de uitvoering en de resultaten van het onderzoek’, In: F. Bovenkerk (Ed.), De georganiseerde criminaliteit in Nederland: Het criminologisch onderzoek voor de parlementaire enquêtecommissie opsporingsmethoden in discussie, Deventer, Gouda Quint, pp. 17–24. See also C. Fijnaut, F. Bovenkerk, G. Brvinsma and H. van de Bunt, Organized crime in The Netherlands, The Hague: Kluver Law International, 1998. 33 Described in Orlando, op. cit. 34 Global Witness (2009). Undue Diligence; How banks do business with corrupt regimes. 32 Fijnaut,

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anti-mafia investigations and trials victims play hardly any role. Investigations and prosecutions rely on evidence gathered through special techniques and from former gang members turned into witnesses for the prosecution (pentiti). An exception to the image of organized crime as victimless is constituted by the crime of trafficking in women for sexual exploitation. Policies against trafficking seem to be firmly grounded in a narrative around the moral need to protect the vulnerable victim community of women and children. The UN protocol against human trafficking, unlike the parent convention, mentions as one of its overarching objectives, besides preventing and combating trafficking “to protect and assist the victims of such trafficking.” The article on victims lists a range of services that States Parties should make available to victims and an even longer list of services that they should consider making available (e.g. residence permits). But are these policies really geared towards the interests of victims and are they perceived as such by the victim communities themselves? In spite of the victim-centeredness of anti-trafficking policies, experiences with the investigation of trafficking cases have revealed that victims themselves often remain suspicious about what the institutions can do for them. Although American strategists have framed investigations into trafficking rings as “rescue operations’’ and routinely speak about the “escape” of trafficked women, the sex workers involved seem often reluctant to cooperate with investigators. And, perhaps more tellingly, they often allow themselves to be trafficked again soon after their “rescue.” As a result of these ambiguous attitudes among victims, trafficking investigations often face many of the problems identified by Schur. Despite formal commitments of governments, the numbers of convicted traffickers have remained small. The gap between objectives set by governments and actual results on the ground is notably huge in the USA, where fewer cases have been brought to the courts than in several individual European countries, with much smaller populations (including Italy and Belgium). In official documents the standard explanation given for these lackluster results is the reluctance of victims to cooperate as witnesses. The victims’ reluctance to cooperate with investigations and prosecutions can partly be ascribed to fear of retaliation from the traffickers. The problem, however, seems to be more fundamental. Studies among trafficked persons suggest that many victims are doubtful of the payoffs of criminal interventions for themselves. The lack of victim testimonies forces those carrying out investigations into human trafficking to rely to an increasing extent on special techniques including the use of informants and financial investigations. And, as predicted by Schur, many specialized law-enforcement agencies have experienced derailments of individual investigators which have damaged the legitimacy of their operations.35 In not a few cases, negative publicity on alleged or actual abusive activities of antitrafficking units have undermined the political will to tackle local organized crime or to make sufficient funds available. The lack of cooperating complainants renders anti-mafia policies vulnerable to accusations of official misconduct and/or the pursuit of ulterior bureaucratic or political agendas.

35 Zhang, S.X. (2007). Smuggling and trafficking in human beings: all roads lead to America, Praeger Publishers.

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In our view, an examination of the anti-mafia strategies of the United Nations in the light of Schur’s concept of victimless crimes suggests the need of critical reflection on the framing of these activities. I will in the next section of this article argue that to enhance its legitimacy the global fight against organized crime should become and seen to become more victim-centered. A first step towards this goal is a fully fledged research effort to illuminate the hidden human and economic costs of organized crime. In the next section I will try to demonstrate the types of victimological studies needed to that end. In the final section of this article I will come back to the need of a strategic reorientation for the UNTOC. The legitimacy of the fight against transnational organized crime cannot be restored by studies on the human impact of organized crime alone. To become more successful, institutions tackling mafias need to harness the potential support of civil society both at the local, national and, most challengingly, global level in the common fight against the mafias of the world. In this final section I will discuss best practices of victim empowerment in criminal cases against mafia groups as well as newly emerging initiatives towards the involvement of collective and individual victims of organized crime in anti-mafia policies in the European Union. Finally, I will discuss how these best practices and fledgling initiatives could be transferred to the global level within the framework of UNTOC implementation.

5.4 Organized Crime and Its Direct and Indirect Victims Sellin and Wolfgang (1964) designed a typology of victims distinguishing between primary victims, secondary victims and tertiary victims.36 This typology is often presented in textbooks on victimology.37 According to this typology primary victims have been directly victimized by criminal acts. In the case of organized crime this would include victims of mob-related homicides and trafficked women. Secondary victims are legal entities such as business corporations or public institutions economically victimized by crime. Tertiary victims are classified people, belonging to communities whose interests are directly or indirectly harmed by crime. The typology seems to classify victims both on the basis of the length of the causal chain of victimization and the nature of the affected entities (natural persons or legal entities). In our opinion, a clearer typology would distinguish primarily on the basis of the length of the causal chain. According to this logic primary victims are directly harmed by the crime. They can be sub-divided into natural persons and legal persons. Secondary victims are family members and other intimates of primary victims. This is an important category because in many countries such secondary victims are assigned procedural rights in criminal trials and made eligible for awards by State Compensation Funds for Victims of Violent Crime, including

36 Sellin,

T. & M. Wolfgang (1964). The Measurement of Delinquency, New York, NY, Wiley. also Letschert, R.M., Staiger, I. & Pemberton, A. (2010) Victims of Terrorism, Towards a European Standard of Justice, Springer Press, Chapter 1.

37 See

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from the Italian Fund for Victims of Organized Crime and Terrorism. Tertiary victims in our view are persons or entities that are indirectly harmed by the crime. They could alternatively be described as indirect victims. In many cases the indirect victimization will be collective in nature. The victimization of collectives such as a local community has been recognized in the framework of the International Criminal Court (see also Chapter 12) but has not yet been a subject of many victimological studies. In this section I will first discuss the direct victims of organized crime. Both existing victimological studies and the literature on organized crime have given insufficient attention to tertiary victimization by organized crime. As will be argued below, the neglect of organized crimes’ tertiary or indirect victims invites the mistaken view of organized crime as threat to national rather than to human security. I will therefore elaborate at the end of this section on the indirect victims of organized crime. A review of current knowledge on organized crime provides ample evidence that organized crime activities are directly damaging citizens and communities in many parts of the world. Different from organized crime groups in the sixties and seventies of the last century, current organized crime seems to have become relatively more violence-intensive, especially in South America, Central America, Eastern Europe and Western Africa (UNODC, 2010). As observed by Mexican expert GonzalezRuiz: “Organized crime almost always generates violence because it has no way of resolving disputes except by mutual consent or settling of scores.”38 In countries as different as the USA, Colombia, Mexico and Italy upsurges in organized crime activity go together with upward trends in overall homicide rates.39 In Kosovo, homicide rates plummeted after the reconstruction of the justice and security sector by the United Nations, including focused police action against the local mafia. In Serbia homicide rates went down after the disruption of the local organized crime groups after the assassination of the prime minister in 2002.40 Elsewhere rampant organized crime has manifested itself in surges of mob-related violence. Since 2007 over 14,000 citizens lost their lives in Mexico in the ongoing drugs wars. In the Brazilian capital Rio alone, about 25 people were recently killed on a single day by drugs gangs (October 17th 2009).41 Murder rates have also exploded to unprecedented levels in Honduras, El Salvador and Guatamala (UNODC, 2010). Besides drugs, trafficking for exploitation in sex industries is one

38 Gonzalez-Ruiz,

S. (2001). ‘Fighting Drug Cartels on the Mexico-United States Border’. Forum on Crime and Society, 1, 19–31. 39 Rubio, M. (2001). ‘Homicide, Kidnapping, and Armed Conflict in Colombia’. Forum on Crime and Society, 1, 55–69. See also Orlando. 40 Dulic, D. (Ed.) (2005). Human security indicators in Serbia. Philo, Belgrad (in Serbian with an English summary). 41 Although the casualties of drugs wars could be construed as side-effects of criminalization, the concept of victimless crimes seems not applicable in countries where organized crime groups have entrenched positions. In such situations the repeal of anti-narcotic laws is likely to trigger diversification of the criminal activities of organized crime groups to other illicit markets.

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of the largest global criminal markets. Estimates of trafficked women and children are in the range of 2–4 million per year. Many of those trafficked persons are subjected to various forms of violence and or fraud both during their recruitment and during their exploitation at the place of destination.42

5.4.1 Indirect Victims It is generally understood that organized crime invariably goes together with the corruption of relevant public officials including high-ranking police officers, judges and politicians. “Buying” protection from the state is a necessary condition for the sustained growth of organized crime activities. In many countries organized crime groups enter into alliances with public officials and politicians to plunder public resources. The highest level of infiltration encompasses the capture of the state’s policies by criminal groups who are then able to unduly influence law-making, policy setting and crucial (appeal court) judicial decisions. The symbiosis between organized crime groups and corrupt public officials has been documented in case studies in many different countries. In Italian legislation infiltration of the licit economy, the state and the electorate process have been incorporated as defining traits of organized crime.43 In Europe systematic collusion between organized crime and political elites has been well-documented in several Eastern European countries, most notably Bulgaria.44 In an edited volume, Roy Godson (2003), assembled case histories of what he names Political-Criminal Nexuses.45 Analyses are presented of collaboration between organized crime and political elites in Colombia, Mexico, Russia, the USA, Nigeria and Taiwan. In his view these nexuses constitute a menace to society by undermining key administrative functions and the rule of law. In analyses of the World Bank Institute “state capture”– defined as undue influence on laws, policies, and regulation by special interest groups – has been found to be correlated to current and future economic performance.46 In an important elaboration of these notions, Kaufmann and Kraay

42 Aronoff,

A. (2008). Human Trafficking, Human Misery, The Global Trade in Human Beings Westport: Praeger. 43 Jamieson, A. (2000). The Antimafia, Italy’s fight against organized crime, Great Britain, MacMillan Press. 44 Roth, J. (2005). The New Bulgarian Demons, Sluntse. 45 Godson (2003), op. cit. 46 In “comparative economics” it is now generally acknowledged that sound legal infrastructures, especially those governing ‘property rights’, are a primary determinant of economic performance. See Knack, S. & Keefer, P. (1995). ‘Institutions and economic performance: cross-country tests using alternative institutional measures’, Economics and Politics, 7, 207– 227; Kaufmann, D., Kraay, A. & Mastruzzi, M. (2004). Governance Matters III: Governance Indicators for 1996–2002, Policy Research Working Paper 3106, Washington, DC, World Bank: http://www.worldbank.org/wbi/governance/pubs/govmatters3.html Feld, L. P. & Voigt, S. (2003). ‘Economic growth and judicial independence: Cross country evidence using a new set of indicators’, European Journal of Political Economy, 19, 497–527.

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have attributed the negative influence of high-level corruption on development to the intermediary factor of “cronyism,” the widespread interference of special interest groups in rational decision-making in the economic domain.47 Infiltration in the legitimate economy and political process is, as discussed, a defining characteristic of mafia-type organizations. If such “crony capitalism” is indeed the main impediment of economic development, organized crime, as an especially entrenched type of cronyism, may well be at the heart of the governance-related economic problems of many countries. The Sicilian economy, for example, seems to have been seriously hampered by the reign of the mafia and started to prosper only after the local mafia bosses were put on the defensive through the maxi-trials and community mobilization.48 The experience with racketeering in New York, USA also points to economic revitalization after the defeat of mob-related racketeering in several sectors of the local economy.49 Analyses of the interrelationships between organized crime, institutional failure and economic growth cannot be solely based on case studies. A systematic assessment of the economic impact of organized crime requires the construction of a statistical measure of organized crime. Some preliminary work on the construction of a composite index of organized crime has been conducted.50 As one of our measures of organized crime, I have used the results of the annual business executives’ surveys commissioned by the World Economic Forum on the perceived costs of organized crime to businesses. An index was also constructed to measure the extent of high-level corruption using existing survey research findings collated by the World Bank Institute.51 The index of organized crime perception was very strongly correlated to the index of high-level corruption (r=0.82; n=67, p<0.05). The results confirm the close links between organized crime and corruption. To empirically explore whether organized crime hampers or spurs economic growth, I looked at the correlations between the composite measure of organized crime prevalence, comprising of a set of intercorrelated indicators and indicators of economic development. The index for organized crime prevalence was found to have a strong negative correlation to GDP per 100,000 population (r=0.76). Figure 5.1 shows results in the form of a scatter plot.

47 In

a case study of ‘cronyism’ in a Latin American country by Kaufmann and Kraay (2002), drug cartels and other organized crime groups are mentioned as drivers of crony capitalism. See Kaufmann, D. & Kraay, A. (2002). ‘Growth without Governance’, Economia, 3, 169–215. 48 Moody Financial Certification, a financial analysis agency, upgraded its rating of the city of Palermo to Aa3, meaning excellent, in 2000. 49 Giuliani, R.W. (2002). Leadership, Miramax Books. 50 Van Dijk, J. J. M., Shaw, M., & Buscaglia, E. (2002). ‘The TOC convention and the need for comparative research: Some illustrations from the work of the UN centre for international crime prevention’, In: Albrecht, H.-J. & Fijnaut, C. (eds.), The containment of Transnational Organized Crime. Comments on the UN Convention of December 2000, Freiburg, Max Planck Institut für Ausländisches und Internationales Strafrecht. 51 Johnson, S., Kaufmann, D., & Zoido-Lobatón, P. (1998). ‘Regulatory discretion and the unofficial economy’, The American Economic Review, 88, 387–392.

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120

Haiti

100

Paraguay

Nigeria

Guatemala

Angola

Kenya

Organized Crime Index (rank 1–112)

Chad

Indonesia

Zambia

Uganda Cameroon

Mexico

Peru Turkey

Nicaragua Sri Lanka

Algeria

Ethiopia Tanzania Mali

Brazil Romania Bulgaria Thailand

Trinidad and Tobago& Tob* South Africa

Macedonia, FYR Costa Rica

Senegal

60

Russian Federation

Pakistan Jamaica Honduras Bolivia Philippines Zimbabwe Ecuador

Madagascar

80

Venezuela, RB

Ukraine Colombia

Mozambique Bangladesh

Argentina

El Salvador Ghana Egypt, Arab Rep. China

Vietnam

Malawi

Dominican Republic

Morocco India

Croatia

Panama

Poland

Namibia

Slovak Republic

40

Estonia Mauritius Gambia, The Botswana

Chile

20

Malaysia

Korea, Dem. Rep. Greece Taiwan, China

Korea, Rep. Hungary Malta Israel

r=–0.77 n=102 p<0.05 0

United States Japan

Spain Portugal

Austria Belgium

Slovenia

France

Ireland

Hong Kong, China Canada

Tunisia

0

Italy

Uruguay Czech Republic

Latvia Lithuania

United Kingdom

Jordan Sweden

Norway

Luxembourg Germany Switzerland Netherlands Denmark

Australia Singapore Iceland New Zealand Finland

20

40

60

80

100

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Fig. 5.1 Prevalence of organized crime (composite organized crime index) and GDP per capita

The statistical results depicted in Fig. 5.1 lend empirical support to the hypothesis that organized crime is structurally bad for the local economy.52 The existence of Political–Criminal Nexuses deters investment and impairs the capacity of governments to promote sustainable economic growth. In our view, the most important negative effect of organized crime, offsetting all possible benefits, is its pernicious impact on governance. Where organized crime groups are powerful, legislation, policymaking and legal rulings no longer serve the general interest but the interests of 52 The finding that on balance significant revenues from drugs trafficking or other forms of lucrative

crime slow down rather than strengthen economic growth may seem paradoxical or surprising on first sight. But this phenomenon is actually just another example of what development economists have called the ‘resource curse’ (MacMillan, J.(2005), ‘The Main Institution in the Country is Corruption: Creating Transparency in Angola’, CDDRL, Stanford Institute on International Studies: http://cddrl.stanford.edu). As mentioned above, developing countries that are rich in natural resources such as oil or diamonds often experience reduced rather than enhanced economic growth. This is because their institutions are undermined by rampant corruption at the highest level of government. Some of the main drugs exporting countries seem to suffer from the same predicament. In such countries drugs generate by far the most profitable opportunities for ‘rent seeking’ by corrupt officials. While corrupt elites accumulate great personal wealth, their countries remain underdeveloped and poor (Reuter, P., et al. (2004). ‘Mitigating the Effects of Illicit Drugs on Development. Potential roles for the World Bank’, RandCorporation project memorandum series, PM-1645-PSJ-1. Prepared for the World Bank).

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the few. Through the pervasive bias of legislation, policy decisions and jurisprudence, market efficiencies are undermined and both local and foreign investors lose confidence in the legal and regulatory functions of the state and consequently stay away. Even if the illegal activities of organized crime groups can be regarded as “victimless crimes,” their overall impact on society constitutes a grave form of collective victimization. Far from being victimless, modern organized crime qualifies as a predatory crime à l ‘outrance. In many parts of the world economically poor nations or cities are trapped in a vicious circle of bad governance, rampant organized crime and a lack of economic prospects. In such countries powerful crime groups forge close alliances with corrupt political elites and can therefore operate with near impunity. The experiences in Sicily have borne out the validity of this point of view. In his memoirs former mayor of Palermo, Orlando, proudly observed that Palermo – for many decades an economically problematic city – had at the end of his term been given a triple A rating by Moody International Certification.53 The successful fight against the mafia had paid off generously in economic terms.

5.5 Learning from the Italian Experience In his memoirs Orlando remembers how he was drawn into Sicilian politics when a friend who tried to reform the Christian Democratic Party was assassinated by the mafia. Around 1980 the mafia, involved in heroin trade, had become more powerful than ever and had de facto captured the Sicilian state. A turning point was the public outrage about the killing of Dalla Chiesa, head of the anti-mafia unit of the Italian police. At the funeral politicians from Rome were hackled and for the first time the Archbishop of Palermo, Pappalardo, openly spoke out against the reign of terror of the mafia and the conspiracy of silence around it. Criminal investigations into the activities of mafia-leaders were spearheaded by a pool of magistrates headed by the judges Falcone and Borsellino. At a meeting in 1985 Orlando and the two leading magistrates decided to join hands in the ongoing fight against the mafia. At his occasion Orlando used for the first time the metaphor of the Sicilian Cart with two wheels, “the wheel of justice – the law, the police, the courts, the prisons; and the wheel of civil society – an informed and responsible citizenry and a growing economy.” To express his political and moral support for the legal actions against the mafia and to show that the inhabitants of the city had collectively been victimized, Orlando decided to make the City of Palermo a civil plaintiff (Partie civile) in the upcoming maxi-trial. The court accepted the city as civil plaintiff and would eventually award significant sums of compensation to the city as part of their final verdict. At the trial several family members of persons murdered by the mafia also spoke up as civil plaintiffs, including the family of Dalla Chiesa and a mother of a

53 Orlando,

op. cit.

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murdered mafia member. Her example would later be followed by a social movement called Women Against the Mafia. A few days before the trial the City of Palermo convened a “National Assembly Against the Mafia,” where hundreds of local mayors and administrators endorsed the necessity to tackle the mafia comprehensively with all available legal and social means. In Palermo the education system was mobilized to raise awareness and teach pupils classes in civics condemning mafia practices. At a later stage school classes adopted recently restored public buildings. Educational efforts like these are directed at the development of what the organizers have named a culture of legality (or lawfulness).54 Legislation was passed to enable judges to confiscate the assets of convicted mafia groups and transfer ownership to social councils or non-profit organizations for social ends. Land once owned by the mafia is used by organizations such as Placido RizzottoTerra Libera which labels its olive oil and other products as coming from land “liberated from the mafia.”55 In the Palermo province an organization Development and Legality uses confiscated mafia assets to create jobs in agriculture for unemployed youngsters. Across Italy associations have been set up to promote legal and social action against the mafia, often named after citizens or officials killed by the mafia. In 1995 a national alliance of anti-mafia associations was formed, Libera, Associations, Names and Numbers against the Mafia. Vice-president of Libera is the magistrate Rita Borsellino, sister of one of the magistrates killed by the mafia in 1992. In 1992, the magistrates Falcone and his wife and Borsellino were killed by mafia members. Somewhat later the mafia also killed an activist priest, father Pino Puglisi, who had organized a group of young anti-mafia volunteers in a mafia-controlled neighborhood in Palermo. After the pope, John Paul II, had openly accused the mafia during a trip to Palermo, several churches in Rome were bombed by way of retaliation. Efforts to control the mafia were subsequently stepped up. An important breakthrough in the fight against the mafia was the arrest of Toto Riina in 1993. Since then the power of the mafia in Sicily seems to have somewhat declined.56 One indicator of the decline is the drastic reduction in the number of mafia-related murders. In their analytical reviews of the fight against the mafia experts Paoli and La Spina make a distinction between direct and indirect anti-mafia policies.57 Direct policies consist of law enforcement and imprisonment and indirect measures of preventive actions including the promotion of a culture of legality. According to both authors successes in the fight against the Italian mafia have mainly been obtained with direct legal means. There can be no doubt that in the fight against 54 Schneider,

J. & P. Schneider (2002). ‘Suggestions from the Antimafia Struggle in Sicily’, Anthropological Quarterly, 75, 1, 155–158. 55 Spina, A. La. (2008). ‘Recent Anti-mafia Strategies: the Italian Experience’, in: Siegel. D. & Nelen. H. (eds.), Culture, Markets and Policies, Springer. 56 Paoli, L. (2008). ‘The Decline of the Italian Mafia’, in: Siegel. D. & Nelen. H. (eds.), Culture, Markets and Policies, Springer. 57 Paoli, op. cit.; La Spina, op. cit.

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well-organized and ruthless criminals, intrusive investigative techniques, witness protection and harsh penal measures are required. The necessity of these direct measures should not blind us to the complementary roles of indirect policies. Many of the indirect policies can be seen as means to rally support for the state’s fight against the mafia around a program of solidarity with victims and of victim activism. The Sicilian experience shows how indirect policies can help to build and sustain the victim-based legitimacy of the legal measures. At the UN Signing Ceremony in Palermo in 2000 several side-events took place, including a Symposium on The Role of Civil Society in Countering Organized Crime: Global implications of the Palermo, Sicily Renaissance. At this symposium presentations were given by cardinal Pappalardo, Rita Borsellino, Maria Falcone and Orlando. Speakers from other countries such as Hong Kong, Mexico, Georgia and Botswana shared their experiences with preventive measures against organized crime.58 Projects on civic education against organized crime were in the following years initiated by the Sicilian Renaissance Institute and partners in Georgia, Mexico and Lebanon. In June 2008 the Italian organizations Libera, just mentioned, and Terra del Fuoco, launched in the European Parliament a new initiative aiming to extend Italian non-governmental anti-mafia activities to the legal space of the European Union and beyond. This new European initiative consists of a network of over forty associations and NGOs from thirty different European countries, called FLARE – Freedom, Legality and Rights in Europe (www. Flarenetwork.org). The participating organizations are active in their home countries in related fields such as youth, violence against women, sexual exploitation of children, environmental protection, human rights, the fight against corruption, and support for migrants and refugees. In 2009 the network received financial support from the European Commission and set up a secretariat in Turin, Italy. Considering the transnational nature of organized crime, the FLARE members seek to introduce a new strategy against organized crime that will complement the efforts of national institutions. The strategy will comprise of awareness raising and mobilization of civil society against organized crime. The overarching aim is to seek a leading role for civil society in the fight against transnational organized crime. The network has set itself the following operational goals: – raising awareness among European citizens about the penetration and growing impact of organized crime in Europe and in surrounding territories through the organization of social events and providing information by means of a web portal and online newsletter; – supporting national and international institutions in the fight against transnational organized crime;

58 Godson,

R. (2000). The Role of Civil Society in Countering Organized Crime, Global implications of the Palermo, Sicily Renaissance. UNODC/ The Sicilian Renaissance Institute, Cita di Palermo, Palermo, 14 December, 2000.

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– lobbying for the adoption by the European Parliament of a “European Day in memory of the victims of the mafia and of commitment to tackle organized crime” on March 21 of each year; – requesting the European Commission and the Council of Europe to pass legislation on the reuse for social purposes of property and goods confiscated from international criminal organizations. The network has launched a website with a virtual library. It has also started a comprehensive research program aimed at mapping and monitoring trends in organized crime in Europe. The network intends to launch an international version of the Italian magazine Narcomafie, a production of the Turin-based NGO Gruppo Abele.59 Other plans for the future include a legislative guide on asset confiscation and redistribution, training programs for European civil servants and the identification and recruitment of citizens and officials who can present personal victim testimonies about the impact of organized crime on their lives. At a later stage the network also aims to establish a network of victims of organized crime to promote peer support and joint action to obtain recognition from state institutions (see Annex A for full text of the Declaration). On March, 20, 2010 the Association Libera organized a manifestation called Day of Memory of Victims of Organized Crime in Milan, Italy. At this manifestation, attended by over 150.000 participants from 30 different countries, names were read out of known mafia-victims.

5.6 The Ways Forward As discussed, the halting implementation of the UNTOC is in our view due to a confluence of factors. A prominent factor seems the overriding concern about international terrorism in the post 9/11 period. The key factor holding back a more focused implementation of the UNTOC and related UN instruments is a lack of political will. Lack of political will is in its turn caused by lingering doubts about the legitimacy of the fight against transnational organized crime. Does the world community really need to spend considerable sums on legal action against abstract phenomena as racketeering, human trafficking or grand corruption? Decision making on the elaboration of the UNTOC was from the outset primarily guided by considerations of national security. When priorities in the national security agenda of the Western powers shifted, the convention was bereft of its key constituency while no other powerful stakeholders came to the fore. Organized Crime Corruption Nexuses still prevail in many parts of the world and have serious negative spin-offs for the world community. In our view implementation of the Big Five UN instruments on global crime is as urgently required now as it was at the time of their entry into force. A successful relaunching of the 59 The

name Abele refers to the biblical figure of Abel, the first victim. The Gruppo Abele was originally founded as a voluntary aid group for drugs addicts in Turin, Italy.

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implementation of the Big Five hinges on their chances to obtain a renewed legitimacy by focusing on the advancement of concrete interests of victim communities. Organized crime, besides victimizing many citizens, impoverishes local communities. For this reason it is substantively more closely related to the fight against poverty than to the wars on terrorism or drugs and should therefore strategically and operationally be linked to the global agenda of human development. Point of departure for a new strategy on organized crime should in my view be the role of organized crime as spoiler of institutional arrangements needed for sustainable and equitable human development and protection of the environment. It should ideally be understood and presented in the framework of the new concept of human security. According to this concept, discussed in more detail in Chapter 3, international policies and aid policies ought to be directed not at protecting national security but at protecting ordinary people against threats to the core of their existence. The ultimate objective of human security has once been succinctly summed up as “freedom from fear and freedom from want”. Advocates of the human security concept stress the need of a holistic approach to the protection of human security interests. Actions should be guided by a full understanding of the linkages between various threats and monitoring should look at effects in a comprehensive model representing all relevant parameters. In our view fighting organized crime in the framework of the UN conventions and protocols should be understood and positioned as an integral part of the United Nations Millennium Declaration. In its current format, the Millennium Declaration and its follow-up have overlooked the need to give priority attention to issues of governance, specifically to the need of addressing the Political Crime Nexus.60 Conventional aid policies have come under increasing attack for their lack of tangible results.61 Alignment of a UNTOC implementation program and the Millennium program is a win-win proposition by enhancing the legitimacy of both. It will demonstrate that protagonists of development aid are ready to face the unpleasant realities of organized crime and corruption and their nefarious impact on human development. It will at the same time enhance the legitimacy of comprehensive policies to tackle organized crime through multiagency cooperation across the world addressing ordinary people’s concerns for protection against violence and exploitation and their hopes for economic prosperity. 60 One

of the advisers of the Millennium Declaration, the economist Jeffrey Sachs consistently underplays the importance of institutional factors as key determinants of economic growth and proves to be blind for the impact of CPN (Sachs, J. 2005). The End of Poverty, How we can make it happen in our lifetime, London, Penguin Group). Several authors have pointed at the need to integrate a security and justice component in the Millennium Goals (Eiras, A. I. (2003). ‘Make the rule of law a necessary condition for the millennium challenge account’, in: The heritage foundation backgrounder, Washington, DC, 7 March). In an interview with a Dutch newspaper another UN adviser, Paul Collier, qualified his proposals for continued development aid to African countries with the observation that in some places the political power of organized crime should be addressed first. As worrying example he mentioned the presence of Colombian organized crime groups in Guinee-Bissau (NRC/Handelsblad, 9 October, 2009). 61 Moyo, D. (2009). Dead Aid; Why Aid is not Working and How there is Another Way for Africa, Allen Lane.

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The alignment of UNTOC implementation to the Millennium Goals will lead to a fundamental resetting of its agenda of implementation. The focus will need to be broadened to include a broad range of preventive measures as listed in both the UNTOC and the Convention against Corruption. Implementation of the Big Five will become part and parcel of a global overhaul of the institutional infrastructures needed for human development. Within that context, capacity building in the fields of law enforcement, prosecution, courts and corrections can finally become the priority of official development aid that it needs to be.

5.7 Engaging Civil Society and Victims To structurally enhance the long term legitimacy of UNTOC implementation, civil society should be engaged in the fight against transnational organized crime to the maximum extent possible. In the UNTOC the article on Prevention encourages States Parties to promote public awareness regarding existence, causes and gravity of and the threat posed by international organized crime and to promote public participation in preventing and combating such crime. States Parties are obliged to inform the Secretariat of the United Nations (i.c. UNODC) of the authorities that are involved in preventive measures with a view to mutual exchanges and collaboration. This obligation should be duly followed up by the Conference of States Parties. Within relevant meetings of the United Nations accredited Non Governmental Organizations are traditionally allowed to make contributions to the deliberations through presentations at the end of the discussion on items on the agenda. An example of such contributions is the presentation of the Global Alliance against Human Trafficking at meetings of the Ad Hoc Committee on the Elaboration of the UNTOC and its protocols. It is unfortunate that the Conference of States Parties seems unwilling to give such hearings to relevant NGOs when discussing implementation issues. In my view representatives of NGOs such as the FLARE Network and the Global Alliance Against Trafficking in Women should be invited to share their information and views with the Conference. An appropriate format for such hearings of civil society should be created within the rules of procedure of the Conference. If this proves to be unfeasible, the Commission for Crime Prevention and Criminal Justice as the parent body of the Conference should organize such hearings during its annual sessions in Vienna.62 The UNTOC contains an article on the rights of victims.63 States Parties should provide victims “assistance and protection, in particular in cases of threat

62 In

a critical assessment of the way the Financial Action Task Force monitors the implementation of anti-corruption legislation, including the OECD anti-bribery convention and the UNCAC, Global Witness, an anti-corruption lobbying group, advises governments participating in the FATF to forge stronger links not only with official anti-corruption agencies but also with civil society (Global Witness (2009), Undue Diligence; how banks do business with corrupt regimes, March 2009). 63 UNTOC, article 25, Assistance to and protection of victims.

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of retaliation or intimidation.” The article also obliges States Parties to establish “appropriate procedures to provide access to compensation and restitution for victims.” They should, finally, also “enable views and concerns of victims to be expressed and considered at appropriate stages of criminal proceedings.” With these provisions, the article faithfully incorporates at least some of the elements of the UN Victim Declaration of 1985,64 but falls short of establishing an up-to-date statute for victims. Rights to assistance are not specified and seem limited to victim-witness protection. In the protocol against human trafficking assistance to victims of trafficking is specified but their actual provision is optional. The provision on victim compensation seems to refer to procedural arrangements for claiming compensation from offenders and not to the establishment of a State Compensation Fund. Finally, and most importantly, the right to express views in criminal proceedings fails to mention the possibility of presentations by representatives of victim communities rather than individual victims. Regrettably, the article has received little scholarly attention. In commentaries by legal or organized crime experts the content of the article is rarely even mentioned.65 The role of the victim is generally considered to be marginal in cases against mafia groups. The key interest of victims in this field is seen as the provision of adequate protection in their capacity of witnesses for the prosecution. The Rome Statute and its bylaws have tailored relevant elements of the Victim Declaration to the needs of victims of genocide and the other crimes that will be tried by the ICC (see Chapters 2 by Rianne Letschert and Marc Groenhuijsen and Chapter 12 by Jo-Anne Wemmers and Anne-Marie de Brouwer, this volume). The provisions for social assistance and protection are described in great detail and their execution is put in the hands of a special unit within the court. A special unit assists victims in obtaining specialized legal aid. Elaborate provisions have been introduced for the compensation of individual and collective victims from a Victims Trust Fund. Finally, the Rome Statute contains detailed provisions for victim voice in the proceedings including for legal representatives of communities of collective victims. In these and other respects the victim-centered provisions in the ICC should be taken as a model by the Conference of the States Parties of the UNTOC. The experiences in Italy over the past 15 years have proven that the presentations by legal representatives of collective victims can make an important contribution not only to victim compensation but also to the impact of anti-mafia trials on public opinion. In other countries including Belgium representatives of victim communities regularly act as civil plaintiffs against traffickers in women. In 2007 an international

64 Dijk, J. J. M. (2005). ‘Benchmarking Legislation on Crime Victims: The UN Victims Declaration

of 1985’, in: Vetere, E. & David, P. (eds.), Victims of Crime and Abuse of Power: Festschrift in honour of Irene Melup, Bangkok, 11th Congress on Crime Prevention and Criminal Justice, April 2005, United Nations, New York, NY. 65 Albrecht H-J. & Fijnaut, C. (2003). The Containment of Transnational Organized Crime, Kriminologische Forschungsberichte, Freiburg, Max Planck Institute for Foreign and International Criminal Law.

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NGO was set up, SOS Legalita, which aims to provide legal aid to citizens or officials victimized by organized crime including through acting as civil plaintiff in criminal cases. As discussed, the FLARE Network advocates the confiscation of criminal assets of organized crime groups and their allocation to non-profit organizations. The UNTOC contains an article on the disposal of confiscated assets which mentions the option to contribute the value of confiscated assets to the Special Account for capacity building in developing countries or “intergovernmental bodies specializing in the fight against organized crime” (UNTOC, Article. 14, 3, c). The Conference of States Parties is obliged to review periodically the implementation of the UNTOC and to come up with recommendations to improve the convention and its implementation. In its 2008 appeal for a better review mechanism for the UNTOC, the Global Alliance against Trafficking in Women has called for involvement of civil society and especially victims in the consultations.66 In my view the Conference of States Parties should indeed seek ways to engage civil society in its deliberations and consult specialized NGOs and researchers on issues of implementation. It should seek guidance from the experiences of the International Criminal Court on how the legal provisions and implementation of the UNTOC could be made more victim-centered. One practical way to support victims would be the establishment of a legal aid fund for individual and collective victims of transnational organized crime. By reorienting itself to its key stakeholders outside government, the Conference of States Parties will significantly enhance its legitimacy and thereby its chances for more effective and sustainable implementation.

66 GAATW

statement of 13 October, 2009: “This will finally benefit the victims of transnational organised crime who are most in need of the protections that the UNTOC was intended to provide. Such persons or their representatives are often at the forefront of evidence gathering and legal investigations and consequently bear first-hand, practical experience of UNTOC”.

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Annex A Rome, October 25, 2009

We, undersigned citizens, men and women of every age, take the responsibility to: Undertake in our everyday life the values of peace, of solidarity, of human rights, of legality and of civil cohabitation against any form of violence, of illegality and of denial to humans’ dignity; Promote and participate to all initiatives, projects and activities necessary to free the world from organized crime; Bring forward the memory of victims of organized crime as a testimony of a just, courageous and responsible world.

We commit ourselves to: Create a global alliance of international solidarity against organized crime; Establish an independent commission, formed by civil society organizations, to evaluate Italian laws in regard of the Universal Declaration of Human Rights; Defend the right of information granted by Article 21 of the Italian Constitution by reinforcing local experiences, spreading free access to sources and backing of – even by the judiciary – the work of those journalists who are exposed and committed the most; Defend the absolute value of independency of the Bench, a true patrimony for democracy and crucial value for a system of equality and justice for citizens before the Law; Socially promote – given the inactivity of national institutions on the matter – a law proposal for the implementation of crime against the environment into the penal code; Sustain cooperatives and associations that work on the social re-use of properties confiscated to organized crime in order for them to become – from south to north – the engine of an economy of legality; Promote in all local institutional bodies new legislative and administrative tools to grant transparency in assigning tenders and in the management of public services; Underline the relevance of the school system, of universities and of all training agencies in the matter of a definition of new social policies and new legislative measures for matters such as immigration, human rights, employment and the fight against organized crime; Spread knowledge of citizenship that enables youngsters to become main actors of a process of education to legality, to the values of responsibility and of participation;

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To grant confrontation between professionals in the field of literature, art and entertainment who through music, movies, theatre, writing and fictions work for producing quality and for spreading knowledge about the organized crime phenomenon, enhancing a genuine culture of democratic legality; We suggest the Italian government, Parliament, political parties, European and supranational institutions to: Create effective and efficient political and legislative counter measures to transnational organized crime; Create in Italy, as indicated by the UN, a national human rights commission; Expand to a European level the legislative norm that allows the social re-use of properties seized from organized crime; Welcome the European directive that extends corruption as a crime also when perpetrated between private bodies; Implement an independent authority against corruption, empowered with inspection and control tools; Assure the application of the law that foresees the duty of denouncement for whom is subjected to racketeering; Abolish all discriminations against the relatives of innocent victims of organized crime. They must be considered as a civil model and a resource for the Country; to implement “tutors”, a professional figure, as the sole point of reference for the victims; Assure adequate palimpsest in the national TV channels for informing and analyzing more important social problems of the Country, in respect of the public service contract.

We reaffirm the urgency of: Define and approve urgently a single text for anti mafia legislation, able to overcome actual dysfunctions and to grant more efficient countermeasures by law enforcement agencies and the Bench; Establish a national agency for the management of those properties taken from organized crime in order to ensure quickness and transparency when re-assigning those properties to the collectivity; To adopt an ethic code to prevent people who have been condemned by a court from holding institutional positions; Reinforce counter measures against the eco-mafia and the illegal trafficking of waste; Make the fight against the building without planning permission a more concrete and daily activity, eliminating practices of supporting the demolition of illegal cement buildings; Grant the persons subjected to human trafficking the status of victims by reinforcing social and institutional support to those who denounce the perpetrators;

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Fight illegal employment that too often foresees a condition of slavery for migrants, through the affirmation of their right to citizenship; Promote a new anti-drug law, centered upon people’s health and the decrease of demand; Rewrite the anti-doping law and promote the values of sport inspired on principles of loyalty and in respect of rules; Establish an independent authority to fight the laundering of money coming from illicit business activities; Hit the international trafficking of weapons, the “grey zones” and fiscal paradises by implementing the crime of “mediation”; To institutionalize, through a legislative measure, March 21 as the Day in Memory of all victims of organized crime.

Chapter 6

Victims of Environmental Pollution in the Slipstream of Globalization Jonathan Verschuuren and Steve Kuchta

6.1 Introduction The globalization of the world economy has as one of its side-effects the rapid proliferation of pollution around the globe. Developing countries are especially vulnerable to polluting activities that, predominantly because of market incentives, are still transferred from the north to the south.1 In theory, international law should prevent this from happening. However, cases like the 2006 Abidjan waste scandal show that there still are flaws in the effectiveness of international environmental law. Despite the fact that the shipment of waste is highly regulated, both under international, regional, and national law, and despite the fact that both international law and EU law prohibit the transfer of hazardous waste to developing countries in Africa, hazardous waste was transported from Europe to Africa, dumped in a densely populated area in Ivory coast, killing ten local inhabitants and injuring thousands more. The disproportionately high risk to become exposed to wastes still suffered by the developing world falls under the heading of environmental injustice, and recent research shows that “environmental injustice on economic terms is happening globally.’’2 In his contribution, we will focus on the position of the victims. Is a transnational legal response to relieve the need of victims of transnational environmental damage required, and if so, what response? This question will be dealt with primarily through an in-depth case study of the Abidjan waste case. We examine the various procedures that can be and are followed by the victims in this case. They range from criminal procedures and procedures to claim damages in the various countries J. Verschuuren (B) Intervict and the Tilburg Sustainability Centre, Tilburg University, PO Box 90153, 5000 LE Tilburg, The Netherlands e-mail: [email protected] 1 Pellow,

David Naguib. (2007). Resisting Global Toxics: Transnational Movements for Environmental Justice, The MIT Press. 2 Jim Puckett, the executive director of the Basel Action Network, quoted in Pellow, D. N. supra n. 1, p. 80.

127 R. Letschert, J. van Dijk (eds.), The New Faces of Victimhood, Studies in Global C Springer Science+Business Media B.V. 2011 Justice 8, DOI 10.1007/978-90-481-9020-1_6, 

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involved and elsewhere, to procedures at the international level. Both national and international law is applied in the various procedures that are being pursued in this case. The approach will be as follows. First we will describe the facts of the case as well as the legal procedures that are being followed by the victims and the authorities involved.3 Second, all relevant laws and regulations are analyzed from the point of view of the victims’ opportunities to get relief for any damage inflicted. Main attention will be focused on international agreements and EU law. Third, conclusions will be drawn as to the effectiveness of the existing opportunities. Since we conclude that the existing opportunities are not effective, despite the existence of a large body of international law on international shipments of waste, including international liability law, we will then turn to human rights law to see if human rights law, in cases like these, offers a way out of the legal complexity and the weakness of international environmental law. Finally, we will answer our main research question: Is a transnational legal response to relieve the need of victims of transnational environmental damage required, and if so, what response?

6.2 The Facts of the Case4 6.2.1 The Multinational Actors Involved The multinational trading company Trafigura, which is physically based in the Netherlands but has its headquarters in London and operates 55 additional trading companies at locations in a wide range of countries on all continents, charters the 3 Since many international organizations, as well as NGOs are closely following the case, much information is available through the internet. We also interviewed a few persons involved in the case. 4 The description of the facts is based upon a wide variety of sources, mostly reports by investigating commissions that were instituted after the incident, including the report by the Commission Internationale d’enquête sur les déchets toxiques dans le District d’Abidjan (CIEDT/DA). Feb. 2007, available at the Dechetcom website at (last visited 17 July 2009); the report by the UN mission in Ivory Coast (ONUCI): Situation des droits de l’homme en Côte d’Ivoire, Rapport No. 7, Sept. 2007, available at the ONUCI website at http://www.onuci.org/spip.php?rubrique/ 55 (last visited 17 July 2009); the Report of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their disposal on its eight meeting, Distr. Gen. 5 January 2007, UNEP/CHW.8/16, pp. 6–9; the report by the Secretariat of the Basel Convention: Report on actions taken by the Secretariat in response to the incident of dumping of toxic wastes in Abidjan, Côte d’Ivoire, Distr. Gen. 13 Nov. 2007, UNEP/CHW.8/INF/7; the report by the Dutch Hulshof Commission: Rapport van bevindingen naar aanleiding van het onderzoek naar de gang van zaken rond aankomst, verblijf en vertrek van de Probo Koala in juli 2006 te Amsterdam, Nov. 2006 (this report is available though the city of Amsterdam’s website at: http:// amsterdam.nl/aspx/download.aspx?file=/contents/pages/21670/rapportcommissiehulshof.pdf/ (last visited 17 July 2009)); the report by the law firm De Brauw Blackstone Westbroek, which was reprinted in the Dutch Parliamentary Documents on 9 Feb. 2007, Parl. Docs. 2006–2007, 22 343, No. 161. Although these sources sometimes are somewhat contradictory on some of the facts, the below description is thought to be as accurate as possible.

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tanker vessel Probo Koala to transport oil products. This Korean built carrier is owned by a Norwegian company, but operated by a Greek company, and it sails under Panamanian flag. In June 2006, Trafigura contacts the waste disposal company Amsterdam Port Services (APS) in the Netherlands to take a chemical waste product called slops, which is regular waste from oil tankers. APS agrees to do so, charging Trafigura C12,000. During the transfer of this waste in Amsterdam (July 2), APS notes an abnormal smell and finds that the waste is 250 times as polluted as normal slops. The company then refuses to take the rest of the waste and informs Trafigura to contact another Dutch company that is suited to receive this kind of toxic waste. Trafigura refuses to do so because of the costs involved (apparently this would have cost C500,000) and wants to take all the waste back.

6.2.2 The Various National Authorities in Europe Involved In the meanwhile, various Dutch environmental authorities have been notified. Prior to the arrival of the ship, the ship’s agent reports to the Amsterdam Port authorities, that the Probo Koala will discharge slops in Amsterdam. After having noticed the abnormal smell, APS immediately notifies the municipal environmental authorities, and they request the port authorities to allow them to return the slops into the ship to be transferred to a facility that is suited to take this kind of polluted waste. The municipal environmental authorities are hesitant about what to do: let the ship go or hold it in Amsterdam for further investigations? They get in touch with the national environmental inspectorate for advice, mainly to find a financial solution for the additional costs involved. Meanwhile, the port authorities, after having consulted with Port State Control of the National Transport and Water Management Inspectorate, allow APS to return the slops into the tanker. Port State Control reports to the Amsterdam Port authorities that there is no legal basis, as far as international maritime law is concerned (i.e. the MARPOL convention), to prohibit the return of the slops into the ship. However, the municipal environmental authorities decide to prohibit APS to return the waste because they suspect offenses against national environmental law. Consequently, they report this to the criminal authorities. The Public Prosecutor’s Office starts an investigation against the Probo Koala and takes a sample of the slops. It does not chain up the vessel, although it has the power to do so. All of this happens in the span of only 3 days. On July 5, while the municipal and national environmental authorities are still discussing the situation and the Public Prosecutor’s Office is still investigating the case, the slops are pumped back by APS following the permission granted by the Amsterdam Port authorities. Immediately after, the vessel departs to open sea, heading for Estonia where it takes additional cargo. The Dutch police, through the Dutch Transport and Water Management Inspectorate, then request the Estonian Port State Control to inspect the ship. No irregularities are found, and the vessel is allowed to take on board gas oil as new cargo. On July 9, the vessel leaves Estonia. Some unconfirmed sources report that the ship on its way from Estonia to Africa, stopped in Spain at the port of Algeciras.

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It is unclear if this was the case and, if so, what had been the role of Spanish authorities.

6.2.3 From Europe to Africa After leaving European waters, the Probo Koala sails to Nigeria to discharge the cargo that was taken on board in Estonia. Then, the vessel sails to Abidjan in Ivory Coast, where it arrives on August 19. That day, the slops are discharged at a local waste disposal company, called Compagnie Tommy. This company is only in the possession of a permit to take waste from ships for 1 month. It charges Trafigura only about C1,200. Both the company and the authorities were notified by the Dutch authorities on the toxicity of the slops, apparently before the dumping took place. Local authorities start an investigation, but they permit the ship to leave for Estonia.

6.2.4 Pollution in Ivory Coast During the following night, a total amount of 500 tons of chemical waste is dumped at ten locations near the Ivory Coast capital of Abidjan, with 5 million inhabitants, within short distances of each other, allegedly leading to the death of eight or ten people, including two 16 year old girls.5 It is reported that 44,000 people have sought medical assistance, while 9,000 are accounted for as actually being sick from the waste disposal. These figures probably are low estimates as a Resolution by the European Parliament speaks of 85,000 people treated in hospitals because of nose bleeding, diarrhea, nausea, irritated eyes, and breathing problems.6 According to UNICEF, between 9,000 and 23,000 children need medical assistance and health care. The victims suffer from respiratory problems, burns and irritation of skin and eyes, nausea, dizziness, vomiting (including throwing up blood).

6.2.5 The Aftermath Soon after the waste has been dumped, Ivorian authorities arrest the directors of both the waste disposal company Compagnie Tommy, and the vessel’s agent in Abidjan, as well as the director of a company that is 100% owned by Trafigura and that

5 Reports on the number of causalities differ, probably because some of the injured died later. Some reports state that on September 26, the number of death had risen to ten. Sometimes higher figures are mentioned (11, 16, 17). Later reports question such severe health effects of the pollution. See below. 6 Resolution of 26 October 2006, OJ C 313 E/432. The UN mission in Ivory Coast (ONUCI) even reports that between 100.000 and 150.000 people have been treated in hospitals in Abidjan following the dumping of the waste, see ONUCI, Situation des droits de l’homme en Côte d’Ivoire, Rapport No. 7, Sept. 2007, p. 24. This report is available from the ONUCI website at http://www.onuci.org.

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has a local office in Abidjan. Two weeks later, on September 7, the Ivory Coast government resigns following massive public protests against the dumping of this toxic waste in Abidjan. People are displaced, schools in affected areas are closed, industries are closed and hundreds of workers are laid off, fishing activities, vegetable and small livestock farming are stopped. In addition, water sources as well as food chains are contaminated, resulting in contaminated food products. The city’s household waste treatment center has to be closed down for 2 months. After the return of the Probo Koala in Estonia, the authorities there chain up the ship upon request of the Ivory Coast authorities. Two weeks later, however, after completion of the investigations, the ship is allowed to sail again. The criminal investigations in the Netherlands against Trafigura are intensified and additional investigations are started against the various authorities involved, as well as against APS, after Greenpeace files charges against Trafigura, APS and officials of the municipal environmental authorities. In February 2007, two directors of the Dutch waste disposal service APS are arrested. Furthermore, the Dutch criminal authorities order the arrest of the captain of the Probo Koala. In May 2007, the same authorities decide to prosecute Trafigura as well (under Dutch law). The investigations are progressing slowly because of the complexity of the case and because of the fact that relevant information rests with a series of different companies and authorities in several countries. In February 2008, the Dutch prosecutors report that Trafigura, APS, the captain of the Probo Koala and the Amsterdam municipal authorities have been informed that these four parties will all be charged shortly. In June 2008, a Dutch court rules that the CEO of Trafigura should be acquitted because there is no link between his personal actions and the dumping of the waste. Although a higher court reaffirmed this ruling in December 2008, the Dutch prosecutors currently try to have this decision reversed by the Dutch Supreme Court. The case against the other defendants is being dealt with in a criminal court at the time of writing (April 2010). Political debates on the issue are held in Dutch Parliament as well as in the European Parliament. The European Parliament adopts a Resolution in which it calls on the European Commission, the Netherlands and Ivory Coast to “bring to justice those responsible for this environmental crime and to ensure full remediation of the environmental contamination, as well as compensation for the victims.”7 The European Commission starts an inquiry into the implementation of the EU Regulation on the Shipment of Waste and states that as of July 2007, stricter rules are in place on inspections of shipments of waste by the national authorities in the EU.8 France sends a clean-up team to Abidjan to clean up the waste, under coordination of UNDAC (UN Disaster Assessment and Coordination).9 The World Health 7 Resolution

of 26 October 2006, OJ C 313 E/432.

8 Answer of commissioner Dimas to questions E-4345/06, E-4365/06 by the European Parliament,

11 Dec. 2006. 9 Outside of the UNDAC, there is also significant current pressure on First World nations to retrieve their toxics from the Third World. Such pressure has prompted action from the United States, Japan, and several countries in Europe. See Pellow, supra n. 1, p. 123.

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Organization sends an investigating mission to the site, as does the Secretariat of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes (part of UNEP). The remains of the waste are transported to France in October and November 2006 where they are disposed of. One year later, however, in October 2007, the media report that about one third of the toxic waste is still present at the various locations in Abidjan, waiting to be cleaned up. According to the authorities, they are waiting for funds to be able to clean up the remainder. A visit to the site by the UN Special Rapporteur on the dumping of toxic waste in August 2008 shows that the site still has not been fully decontaminated. The United Nations Environment Program coordinates relief efforts for the victims in Abidjan. They collect money for the victims; however, apparently with insufficient results. In January 2007, UNEP reports that it needs 30 million dollars to clean up the pollution, restore the food chain and the water system, and give aid to farmers and to people that still suffer physically from the pollution.10 In May 2009, the London High Court starts the proceedings in the biggest class action ever brought before British courts: a claim of 30,000 victims against Trafigura. British courts accept jurisdiction in this case because of Trafigura’s headquarters in the UK.11 Around the same time, BBC’s Newsnight and a Dutch newspaper disclose a confidential report by the Netherlands Forensic Institute which shows that an analysis of the samples that were taken from the vessel in Amsterdam in 2006 proves that the Probo Koala at that time was shipping 2,600 l of a substance containing high levels of the extremely toxic sulphur hydrogen. This report contradicts Trafigura’s statements that the Probo Koala was not carrying substances with serious health implications.12 Following the disclosure of the report, the proceedings in London, that started that same week, are immediately adjourned until October 2009, when the full case will start. Trafigura responds to the BBC report by suing BBC’s Newsnight program for libel. In September 2009, a settlement is reached: Trafigura pays £ 1,000 to each of the 30,000 claimants. In a joint statement, Trafigura and the law firm representing the Ivorians, state that independent experts so far have been unable to identify a link between exposure to the chemicals and severe health problems. A few weeks later, the law firm representing Trafigura attempts to prevent the UK newspaper the Guardian from reporting a parliamentary question by an MP about the case. Following an outcry among MPs about the apparent threat to parliamentary privilege, the attempt is dropped the next day. In January 2010, an Ivorian court ruled that the settlement money should be paid out to a local activist who claims to be the 10 Supra

n. 4. J & Ryngaert, C. (2009). ‘Litigation for Overseas Corporate Human Rights Abuses in the European Union: The challenge of jurisdiction’, Institute for International Law Working Paper No. 124, Leuven, p. 11, available at: http://www.law.kuleuven.ac.be/iir/nl/onderzoek/wp/WP 124e.pdf (last visited 17 July 2009). 12 See pres statement by Trafigura, available at the BBC’s website at: http://news.bbc.co.uk/2/hi/ programmes/newsnight/8049024.stm (last visited 17 July 2009). 11 Wouters,

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representative of the victims. The law firm representing the claimants fears that, as a consequence, the claimants will not see a penny of it.

6.3 The Legal Situation The shipment of dangerous substances is a highly regulated topic at all levels of regulation. At the international level there are conventions on transboundary shipments of hazardous waste (Basel Convention),13 on the environmental aspects of shipping in general (Marpol 73/78),14 and on the export of dangerous chemicals (Rotterdam Convention).15 On all of these topics, EU legislation exists as well, in addition to national law in the EU Member States. First, we will briefly discuss whether these laws protect potential victims in Africa against pollution by waste that is transported there from other continents. Then, we will turn to the case again to check why these laws were ineffective. In order not to overcomplicate this already complicated topic, we will only focus on the Basel Convention and on Marpol 73/78 and all connected laws. As the Rotterdam Convention does not apply to the case, we will not discuss it, although it certainly intends to protect developing countries against hazardous chemicals from other parts of the world.16

6.3.1 Laws Protecting Potential Victims of Pollution by Transboundary Shipments of Waste 6.3.1.1 Waste Legislation The basic rule protecting people in developing countries against the shipment of hazardous waste is the prohibition of transportation of hazardous waste. This rule has, to some extent, been laid down in the Basel Convention, in an OECD decision, and in the EU Regulation on Shipments of Waste.17 Generally speaking, the transportation of hazardous waste and waste that is not being recovered (recycled) to non-OECD countries is prohibited. This covers most developing countries.18 We 13 Basel

Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1989. For the text of the Convention, see the Convention’s website at http://www.basel.int 14 International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978, in short: Marpol 73/78. The many Annexes to this convention are regularly amended. For the latest version, see the website of the International Maritime Organization, http://www.imo.org. 15 Rotterdam Convention on the Prior Informed Consent Procedure for certain Hazardous Chemicals and Pesticides in International Trade, 1998. For the latest version of the Convention and its Annexes, see the Convention’s website at: http://www.pic.int. 16 See for instance Articles 6 and 16. 17 Regulation 1013/2006/EC, OJ L 190, replacing similar provisions that are in place since 1993 (Regulation 259/93). 18 Since 2007, negotiations on accession to the OECD with such countries as China, India, Indonesia, Chile, and South Africa are being held.

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use the words “generally speaking,” because it is not easy to give clear statements on the law regulating shipments of waste. This body of international law is quite complex as it is constantly balancing between protecting the environment on the one side, and not disturbing trade on the other. Even from the side of environmental protection, things are complicated. It may be very well possible that a certain waste can be reused or recovered in another country, thus producing an overall benefit to the environment as a whole. Rules protecting the environment should not complicate shipments that are aimed at doing just that. The result of all this is that we have complicated rules that not only differ between types of waste, but also between the goals the owner may have (disposal or recovery). Further complicating the issue is the fact that the various sets of rules, i.e. the Basel Convention, the OECD Decision and the EU Regulation, all differ from each other. It is obvious that jurists have a hard time getting a grip on these rules. As all of this has been regulated at the EU level in a Regulation, and thus directly applies in all EU Member States, there is no additional national legislation with regard to the shipment of waste. Additionally, the EU Waste Directive regulates that it is not allowed to deliver waste to people or companies that have not been licensed according to the provisions of this Directive.19 In all EU countries, this duty has been transposed into national environmental law. Since 1999, a liability protocol has been added to the Basel Convention.20 This protocol, however, has not entered into force because to date it has only been ratified by nine parties instead of the twenty that are needed.21 The protocol introduces strict liability for the exporter of waste, i.e. the person who notifies the shipment of waste. After the disposer has taken possession of the wastes, liability switches to the disposer.22 Interestingly, fault based liability rests on all other persons that contributed to the damage “by his lack of compliance with the provisions implementing the Convention or by his wrongful intentional, reckless or negligent acts or omissions”.23 Damages that can be claimed include costs involved in the loss of life or personal injury, loss of or damage to property, loss of income, the costs of measures of reinstatement of the impaired environment, and the costs of preventive measures.24 This would, therefore, cover most of the costs of the victims in the Abidjan case (health care, damage to crops, to the food chain, to water supply, costs involved with the halting of various kinds of economic activities) (see Section 6.2.5).

19 Article

9 of Directive 2006/12/EC, OJ L 114 on waste, replacing similar provisions that are in place since 1975 (Directive 75/442/EEC). 20 Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal, 1999. For the text of the protocol, see the Basel Convention’s website at http://www.basel.int/pub/protocol.html (last visited 17 July 2009). 21 See the status of ratifications at the Basel Convention website at: http://www.basel.int/ratif/ protocol.htm (last visited 17 July 2009). 22 Article.4 of the Liability Protocol. 23 Article 5 of the Liability Protocol. 24 Article 2(c) of the Liability Protocol.

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The EU Regulation on Shipments of Waste does not have such a wide-ranging instrument to claim victims’ costs. It only regulates that costs for recovery and disposal of an illegal shipment of waste are to be charged to the notified or the competent authority of dispatch in cases where the illegal shipment is their responsibility, or to the consignee, or the competent authority of destination, in cases where it is their responsibility.25 In addition, there is an EU Directive on Environmental Liability that applies to environmental damage caused by transboundary shipment of waste within, into, or out of the EU.26 As a consequence, any natural or legal, private or public person who controls the shipment has to bear the costs to remove the contaminants and to take the necessary remedial actions.27 Again, this does not go as far as the Liability Protocol to the Basel Convention as it does not create strict liability, nor does it focus specifically on the victim’s costs, but (just) on reparation costs with regard to the natural environment. 6.3.1.2 Environmental Maritime Legislation The Marpol Convention comprises an elaborate set of rules aiming at the prevention of maritime pollution. These include rules on the discharge of waste from ships, both at sea and in ports. Annex II to the Convention provides that remains from slop tanks have to be discharged at a port reception facility, provided that Category A or B substances, i.e. the most dangerous and noxious substances, are present in the slops.28 This, however, does not apply to oil or oily mixtures, as these substances are regulated under Annex I. They have to be either kept on board, or discharged at a port reception facility. In the EU, some of these rules have been further defined, for instance with the Directive on port reception facilities for ship-generated waste and cargo residues.29 This Directive aims at reducing the discharges of ship-generated waste and cargo residues into the sea, especially illegal discharges, from ships using ports in the EU, by improving the availability and use of port reception facilities for ship-generated waste and cargo residues. Both ship-generated waste and cargo residues have to be delivered at a port reception facility when ships call at an EU port.30 However, there are exemptions to this rule. Ship-generated waste may be kept on board when the ship has sufficient storage capacity and there is no risk that the waste will be discharged at sea.31 For cargo residues, the Directive mainly refers to the Marpol

25 Article

25 of Regulation 1013/2006/EC.

26 Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of

environmental damage, OJ L 143. See Annex III No. 12. 6 and Article 7 of the Directive. 28 Regulation 8(9) of Annex II. 29 Directive 2000/59/EC, OJ L 322. 30 Article 7 and Article 10 respectively. 31 Article 7. 27 Article

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Convention.32 As a consequence, oil or oily mixtures may be kept on board as well (see above). In addition to the Directive on port reception facilities, the Directive on port state control sets rules on inspection and international cooperation.33 The latter Directive refers to the Paris Memorandum of Understanding (MoU) on Port State Control,34 thus incorporating this international law instrument in EU law. With the Paris MoU, the maritime authorities of twenty-six countries in Europe and Canada concluded detailed arrangements on cooperation with regard to inspections and enforcement of environmental standards in European and North American waters. As both the Marpol convention and the EU Directives (in most cases) are not directly legally binding, these sets of rules have been transposed into national law in all of the EU Member States.

6.3.2 Inherent Ineffectiveness of the Applicable Laws: Back to the Case 6.3.2.1 Waste Legislation In this case, the slops were first discharged at APS, and then pumped back into the ship. This action had important legal consequences, as it triggered the EU Regulation on Shipments of Waste to apply to the case. Slops inside a ship, that simply stay in the ship while visiting an EU port, do not fall under the scope of the Regulation. Once they are offloaded to be disposed of, the Regulation applies.35 In this case, however, the competent authorities did not draw this conclusion. They allowed the ship to leave with the slops, thus permitting the shipment of waste without the application of the EU Regulation on Shipments of Waste.36 The Netherlands Environmental Management Act was also infringed upon, because it is not allowed to deliver waste to someone who does not have a permit pursuant to which he is allowed to handle waste. Obviously, the captain of the Probo Koala did not have such a permit, and thus APS should not have returned the waste to the ship.37

32 Article

10. 95/21/EC, OJ L 157, as amended by Directive 2001/106/EC. 34 Paris MoU of January 1982, amended regularly since. For the latest version, see the Paris MoU website at: http://www.parismou.org. 35 Article 1(3)(b) of Regulation (EC) 1013/2006. According to Article 1(3)(a). waste that is generated by the normal operation of ships does not fall under the scope of the Regulation at all. The level of toxicity of these slops indicates that these slops should be regarded under letter b, rather than under a of Article 1(3). This was also concluded by the Commission Hulshof, that investigated the role of the Dutch authorities on behalf of the Amsterdam municipal authorities, ‘Rapport van Bevindingen’, Amsterdam, 2006, p. 12 (supra n. 4). 36 Parliamentary Docs. (Netherlands). 2006–2007, 22 343, No. 161, pp. 19–20. 37 Parliamentary Docs. (Netherlands). 2006–2007, 22 343, No. 161, p. 30. 33 Directive

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6.3.2.2 Environmental Maritime Legislation The above description of the Marpol Convention and EU Directive 2000/59/EC shows that the qualification of the substances is decisive to answer the question whether the captain of the ship had to discharge the slops at the Amsterdam port reception facility or not. Most investigations into the case conclude that the slops consisted of a mixture of oil and oily substances and noxious substances, thus qualifying both under Annex I and Annex II of the Marpol Convention.38 However, there is uncertainty as to the most appropriate Category (A/B or C/D). Only when the slops qualified under Category A or B, the captain had the obligation to discharge at the port reception facility. In the other case, it is legally allowed to discharge the slops at any other port reception facility, for instance one in Ivory Coast, which country is a party to the Marpol Convention as well. Once the slops had been discharged at the Amsterdam reception facility, Marpol 73/78 no longer applied. As concluded above, at that moment waste legislation took over. It appears, however, that the authorities, by transferring the slops back into the ship without the application of waste law, continued to apply the environmental maritime legislation. Because of the transposition process, national law can differ from international and EU law. In the Netherlands, it was concluded in several of the investigations into this case, that on some crucial points Dutch legislation differs from the terminology used in Marpol 73/78 and the relevant EU Directive. One of the reports concludes that the Dutch legislature has not only created an unclear situation, but also one that is in conflict with the Marpol Convention.39 Additionally, it must be concluded that the Dutch legal situation is extremely complex because of the many layers of regulation that exist. Rules on the reception and treatment of waste from ships have been laid down in national Acts, in national Regulations (Orders in Council and Ministerial Regulations) and in local regulations of the municipality of Amsterdam and of the Amsterdam Port authorities. As a consequence, there are several authorities that have inspection competences.40 6.3.2.3 Conclusions – Interplay between the various fields of environmental law makes things complicated; some of the reports conclude that there exists a grey area between the regulation of ships under Marpol 73/78 and of the shipment of waste under the Basel Convention.41 38 For

instance the report by the law firm De Brauw Blackstone Westbroek, reprinted in: Parliamentary Docs. (Netherlands). 2006–2007, 22 343, No. 161, at pp. 25–26. Regulation 2(3) of Annex I to Marpol 73/78 refers to the possibility that oil tanks also hold noxious substances. 39 Commission Hulshof (supra n. 4). pp. 20–22. 40 For an overview, see the two most important Dutch investigations into the case by the Commission Hulshof (supra n. 33). and by De Brauw Blackstone Westbroek (supra n. 38). 41 The parties to the Basel Convention respond to this in COP8 by deciding to start a cooperation between the Basel Convention and the International Maritime Organization, Report of the

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– A similar grey area appears to exist in the countries involved, most notably in the Netherlands, where the various authorities involved seem to point at each other for being responsible; each act on the basis of their portion of the applicable law. No single authority has a good overview of the whole situation. – Enforcement is lacking. This is not specific to the case. In 2006, the EU IMPELnetwork42 published a report on waste shipments under the EU Regulation on Shipments of Waste, showing that 51% of the inspected shipments were illegal, i.e. the Regulation had not been applied at all. Of the shipments that were reported under the Regulation, 43% showed infractions like missing or incomplete information.43 Both in the EU and at the level of the Basel Convention the lack of enforcement is considered to be a major problem that is currently being addressed by such initiatives as the formulation of inspection criteria and minimum sanctions.44

6.4 What Are the Existing Legal Remedies for Victims of Transnational Pollution? The above case description shows that victims are likely to be more vulnerable from a legal point of view, where multiple layers of regulations overlap with multiple authorities and countries. We see this complex regulatory situation as a consequence of the slipstream of globalization. There are various foreign authorities involved that do not cooperate very well, as well as international organizations, and a multinational company that operates around the globe. The question arises what legal remedies they have at their disposal to relieve their needs in such a complex legal situation. The various procedures that can be and are followed by the victims in this case range from criminal procedures and procedures to claim damages in the various countries involved and elsewhere (for instance in London) to procedures at the international level (EU, UN, Basel Convention, and others). International organizations, such as UNEP, play a big role in aiding the victims, as do private law firms that start procedures for groups of victims. Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their disposal on its eight meeting, Distr. Gen. 5 January 2007, UNEP/CHW.8/16, p. 9. 42 IMPEL is an informal network of the environmental authorities in the EU member states. For more information, see the network’s website at: http://ec.europa.eu/environment/impel/. 43 IMPEL-TFS seaport project II, International cooperation in enforcement hitting illegal waste shipments, project report September 2004 – May 2006, Brussels, June 2006, p. 10. 44 The April 2008 document on the programme budget for 2009–2010 of the Basel Convention (for COP9) pays considerable attention to enforcement, see the Basel Convention’s website at: http://www.basel.int/meetings/cop/cop9/docs/advance%20-%2035e.pdf (last visited 17 July 2009). See also the European Commission’s proposal for a Directive on the protection of the environment through criminal law, COM (2007)51, that also applies to illegal shipments of waste (cf. Article 3(e)).

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As far as we know, the following procedures have already been initiated. In the Netherlands, Greenpeace filed charges in September 2006, but the Dutch Public Prosecutions Department had already started its own investigations before that. As already stated above, criminal investigations are still being carried out in 2009 against Trafigura, APS, the captain of the Probo Koala, and the Amsterdam municipal authorities. The case is scheduled to go to trial in 2010. The slowness of these investigations shows that many problems are encountered, mainly because of the complexity of the case and because of the fact that relevant information rests with a series of different companies and authorities in several countries. In addition, under Dutch law it is difficult to prosecute public authorities, because usually they are deemed to have criminal immunity. On behalf of more than 1,000 of the Ivorian victims, the Dutch law firm Van der Goen initiated tort proceedings in the Netherlands against Trafigura, the city of Amsterdam, and the Dutch state. Independent from that, Dutch national and municipal (Amsterdam) authorities already offered 1 million euro to the UNEP trust fund to relieve the needs of the victims. In 2008, however, the law firm ceased all activities because of financial constraints: the Ivorian claimants could not apply for legal aid because most of them did not have a passport45 ; hence the Dutch Ministry of Justice was unwilling to grant them free legal aid.46 Since, under Dutch law, it is not allowed for a law firm to negotiate with the client to transfer a part of the award of the case, there were no funds to cover the huge costs involved in a complicated case like this. In Ivory Coast, the criminal and civil law cases against Abidjan based officials of Trafigura that had been initiated were not pursued after Trafigura and the Ivorian authorities reached a settlement of the case for C152 million in 2007. The deal absolves the Ivorian government and Trafigura of any liability and prohibits future prosecutions or claims by the Ivory Cost government on Trafigura. Although the deal was heavily criticized,47 the Ivorian Court of Appeal ruled, in March 2008, that criminal charges could not be pursued against Trafigura. The 152 million is meant to cover clean-up costs and compensate the victims. In June 2007, the President of the Republic of Ivory Coast announced that 101,313 residents of Abidjan will each receive around C260. Families of victims who died are entitled to C130,000. Payment started almost immediately after this announcement was made. However, 3 weeks later, the payments were stopped because large numbers of people showed false IDs try to collect the money (as many as 95% of the IDs that were used to collect the money were reported to be false).

45 A

typical situation caused by the past civil war in Ivory Coast. obtained in an interview with the director of the law firm, Bob van der Goen (interview by phone, May 7, 2008). 47 This part of the deal is heavily criticized in the media. Some newspaper reports described it as “a dirty deal”, for instance on 14 Feb. 2007 by Deutsche Presse Agentur. 46 Information

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The settlement did not include the local waste disposal company Compagnie Tommy. In October 2008, the owner of Tommy was sentenced to 20 years imprisonment, and his shipping agent to 5 years. The most important case that directly involves the victims is currently being pursued in the United Kingdom. Some 30,000 Abidjan residents are represented by the Leigh Day & Co law firm in a legal suit for damages against Trafigura in London. As stated above, this group action, issued by the High Court, has been settled, awarding each of the claimants a compensation of £ 1,000. Contrary to the, now abandoned, Dutch tort case, this case was only brought against Trafigura, and not against any of the authorities involved. Also, the UK law firm chose to represent only those victims who had a clear case.48 Unlike the Netherlands, in the UK it is possible to claim all the costs that a law firm makes in a case like this. In France, ninety-four people filed murder charges against the crew of the Probo Koala in July 2007, upon which the authorities started criminal proceedings. As far as we know, these had not lead to any clear results by July 2009.

6.5 How Effective Are These Existing Legal Remedies? The above proceedings are slow and full of legal complexities. There are many obstacles in the various paths that are being pursued at the moment. First of all, international law with regard to tort remedies is hopelessly weak.49 Although the Liability Protocol to the Basel Convention seems to offer the victims good opportunities to hold both the companies and the authorities involved liable, either under strict liability rules or fault-based liability rules, this protocol simply has not yet entered into force, and it is unlikely that it ever will, given the extremely slow ratification process. The EU Environmental Liability Directive is of no use either, because it is aimed at the authorities carrying out the cleaning up and restoration, after which they have to try and be reimbursed by the polluters. Under the Directive, remediation costs do not include financial compensation to the victims.50 More or less the same goes for the EU Regulation on the Shipments of Waste. The Regulation only regulates that the costs of recovery can be claimed by the authority that does the recovery and the take back. There is no mention of victims or the damage that they suffer as a consequence of an illegal shipment. More in general, tort proceedings are difficult because of the distance between the various European authorities and the African victims, data are spread everywhere since the company has offices around the globe and the Ivorian authorities are not likely to cooperate because of their settlement with Trafigura. In addition, 48 Supra

n. 46. Noah (2008). ‘Beyond the Liability Wall: Strengthening Tort Remedies in International Environmental Law’, UCLA Law Review, 55, 4, 837–904. Also available at: http://works.bepress.com/noah_sachs/1/ (last visited 17 July 2009). 50 See Annex II under (1) and (1.1.3) of the Directive. 49 Sachs,

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cases like these are very costly because they need a lot of research before they can be brought to court. Data on the damages of each of the claimants have to be gathered in Africa. And there are considerable limitations to the access to justice of the victims, as is shown by the fact that no tort case can be pursued by the victims in the Netherlands against the Dutch authorities or against the Trafigura head office in the Netherlands. In the British class action against Trafigura, some of these hurdles were successfully taken, for instance by allowing that only twenty-two “lead claimants” fly over from Ivory Coast to London, and to allow doctors involved in the treatment of the victims to testify from Amsterdam, Tunisia and Norway (where some of the victims were treated). Still, the outcome of the case remained uncertain. During one of the hearings, the judge said that the case would be a battle of scientific experts about the cause of the alleged poisoning. Both sides assembled rival teams of toxicologists, chemists, tropical medicine experts and even psychiatrists, while teams of lawyers and barristers were shuttling back and forth to the Ivory Coast.51 The trial had to start in October 2009 and was due to last at least 3 months. As a consequence of the settlement, the case never went to trial. Criminal procedures are difficult as well. At the EU level, a heavily discussed proposal for a Directive on the protection of the environment through criminal law52 does include illegal shipments of waste,53 regulating that participation in such an illegal shipment constitutes a criminal offense that has to be severely punished, with high fines being imposed on legal persons involved. There is, however, not a single provision dealing with the position of victims here. In addition, this being a proposal only, for the moment it is all national law that is applied here. Under the national legal systems involved, there are several shortcomings in the field of criminal environmental law. In the Netherlands, for instance, public authorities enjoy criminal immunity. More in general, it is hard to show that one of the authorities committed a crime or tort. As was shown above, it is the lack of cooperation in the implementation of the various laws that caused the problem. It will be very difficult to demonstrate that it was a single action or omission by one of the authorities or officials involved that caused the incident. Therefore, it is unlikely that all of the proceedings that have been initiated will lead to great results, although we have to wait and see in this particular case, as some cases are still pending. Meanwhile, we wondered whether the overarching concept of the protection of human rights offers a way out of the legal complexities that are involved in a case like this. Can the victims rely on human rights documents – rather than on the complex and ineffective body of environmental law – to get justice?

51 The Guardian, 10 July 2009, also available at: http://www.guardian.co.uk (last visited 17 July 2009). 52 Proposal for a Directive on the protection of the environment through criminal law, COM (2007) 51 final. 53 Article 3, Section (e).

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6.6 The Human Rights Dimension In recent years, human rights instruments have truly become a viable path toward rectifying environmental harms, especially relative to the complexities illustrated above. The connection between pollution and human safety, health, and rights to a protected private sphere has been recognized most strongly by the European Court of Human Rights and this section aims to elucidate both the grounding and jurisprudence for this, as well as to frame the human rights dimension of the Probo Koala tragedy. In this way, we separate from other discussions on criminal prosecution or international law remedies for human rights violations and instead focus on human rights solutions to human rights problems.54 Although those discussions are admittedly more grounded in practice than this theoretical section, expanding presence of the human rights’ discourse within the same legal dicussions warrants its inclusion here. As the preceding discussion highlights, this accident happened in the shadow of standing regulations meant to prevent just such an occurrence. The regulatory failure is, unfortunately, not wholly unexpected. An expectation of bilateral regulatory failure is indeed what drives much commentary on tort litigation as a control method.55 While such litigation can bring needed monetary remuneration to victims, it is far less clear what lasting effect it can have for victims or what general steps towards prevention it can muster. Notably, the monetary remuneration is necessary to offset upfront legal costs of bringing the action – often a significant hurdle for the victims of human rights violations. Criminal law proceedings, either brought at the location of the accident or at the home of the corporation responsible, can level the cost profile, but this is a legal route more untested than tort litigation.56 Even with successful personal outcomes, questions remain about how, if at all, such legal attention will address the underlying failures in policy and regulation. It is certainly unclear a priori that a judgment will bring about lasting change. That is one of the large benefits of pursuing a human rights action against transnational pollution problems; when one starts from the top, there is a strong pressure brought to bear on all legal levels below.57 The literature on environmental human

54 For an introduction to the former discussions see Wouters, J. and Ryngaert (2009). C., ‘Litigation

for Ooverseas Ccorporate Hhuman Rrights Aabuses in the European Union: Tthe challenge of jurisdiction’, Institute for International Law Working Paper No. 124, Leuven, supra at n. 11. 55 Anderson, R. Michael. (2002). ‘Transnational Corporations and Environmental Damage: Is Tort Law the Answer?’, Washburn Law Journal, 41, 399. 56 See Wouters & Ryngaert, supra n.11, for the relevant discussion on jurisdiction and standing. 57 Among other more specific examples, this top-down pressure derives in the European situation from the principles of solidarity and subsidiarity, the former declaring that signatory countries to the European Convention on Human Rights will take active steps to secure the rights contained therein, and the latter declaring that action at the lowest levels should be taken toward those goals. See Ovey, Clare & White, Robin (2006). The European Convention on Human Rights, Oxford University Press, p. 18.

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rights comes to bear here,58 but this discussion is bounded by the Trafigura case at hand and the desire to point out specific and arguably practicable approaches. While there are many human rights instruments to examine, the fact that the problem of nonfunctional regulation here resides within Europe pulls our attention to their own regional instruments, as does the success of the European Convention on Human Rights as a whole. The success of the European system of human rights protection most importantly promises that monetary sums would not be the only outcome if the dumping had occurred within the Council of Europe. Given the European Court on Human Rights’ (ECtHR’s) recent jurisprudence, victims could claim violations of a number of Convention rights in response to such an environmental catastrophe. We discuss some of those possibilities herein but note first that the simple possibility of claiming human rights violations stemming from environmental problems is both new and expansible; the outcomes of human rights decisions have notably further reaching effects than the outcomes of individual criminal and civil actions. The derivation of environmental protection placing both substantive and procedural duties on the state from ostensibly non-environmental human rights has become a powerful topic in rights theory, and especially relevant to the European Convention on Human Rights (ECHR).59 In recent history, the ECtHR has heard claims of violations of the right to life,60 the right to respect for the home and private life,61 the right to effective domestic remedies,62 and the right to a fair trial63 in relation to environmental problems. That is to say, harm to the environment has been found to share a common nexus with harms to established human protections. As the nexus expands in step with social-environmental consciousness, there is no evidence suggesting that states would not change their legislation to reflect the Court’s negative rulings and prevent future cases, in addition to civil law and criminal law analogues

58 Notably

the venerable Boyle, Alan & Anderson, Michael (eds.) (1996). Human Rights Approaches to Environmental Protection, Clarendon Press; and, inter alia, recent additions Turner, J. Stephen (2009). A Substantive Environmental Right: An Examination of the Legal Obligations of Decision-Makers Toward the Environment, Kluwer; Kravchenko, Svitlana & Bonnie, E. John (2008). Human Rights and The Environment: Cases, Law, and Policy, Carolina Academic Press; Hayward, Tim (2005). Constitutional Environmental Rights, Oxford University Press. 59 Inter alia Gomien, Donna (2005). Short Guide to the European Convention on Human Rights, Council of Europe; DeMerieux, Margaret (2001). ‘Deriving Environmental Rights from the European Convention for the Protection of Human Rights and Fundamental Freedoms’, Oxford Journal of Legal Studies, 21, 3, 521–561. 60 Article 2 of the Convention, e.g. Öneryildiz v. Turkey, application no. 48939/99, Grand Chamber judgment of 30 November 2004. 61 Article 8 of the Convention, e.g. Hatton and Others v. the United Kingdom, application no. 36022/97, Grand Chamber judgment of 8 July 2003; Guerra and Others v. Italy, application no 116 /1996/735/932, Grand Chamber judgment of 19 February 1998. 62 Article 13 of the Convention, e.g. Powell & Rayner v. the United Kingdom, application no. 9310/81, judgment of 21 February 1990. 63 Article 6, e.g. Taskin v. Turkey, application no. 46117/99, judgment of 10 November 2004; specifically 6(1).

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of monetary rewards to the victim. The human rights pathway thus becomes a more inclusive and dynamic solution. Despite acknowledgement of a linkage between human rights and environmental protection there is no explicit right to the environment espoused in the ECHR. Such pathways are as yet only derived and therefore less certain than the criminal and tort paths. Furthermore, establishing an explicit environmental right does not yet have consensus support either.64 Nevertheless, at this juncture it behooves both the Trafigura situation and the general discussion on environmental oversight in the slipstream of globalization to note how well, in fact, the derived environmental protections of the ECHR work.

6.6.1 Derived Protections Negative environmental impacts like the Trafigura environmental case have helped shape the European view of what is a “derived right” to an environmental quality. Importantly, both situations where a State Party has violated an established right via their environmental actions and inactions have been explored. That is, the European Court has shown a willingness to interpret the Convention as imposing both negative and limited positive obligations on states to secure the rights guaranteed via environmental choices. The development of positive obligations on the state has been as important as the negative duties of states not to interfere in expanding the derived-rights jurisprudence.65 Such positive obligations are especially helpful to environmental advocates. Positive obligations create a regulatory milieu in which states must not only refrain from infringing on citizens’ rights but also actively pursue measures that assure citizens the ability to enjoy their rights. The following paragraphs lay out the human rights dimension of the Probo Koala dumping as seen from this European human rights landscape. Although there is nothing that would prevent the victims in Abidjan from lodging a complaint with the Court directly,66 there are jurisdictional issues that complicate the legal picture. As such, given the limited scope of this contribution, we deal with those briefly and separately later in the article. The primary focus is instead on the power available in the ECHR itself, and we can illustrate this by positing a simpler situation, that the dumping occurred within the territory of a party to the Convention.

64 Inter alia G. Handl, Human Rights and the Protection of the Environment, in: A. Eide, C. Krause,

A. Rosas (eds.). Economic, Social, and Cultural Rights, Kluwer 2001, pp. 303–328; Also Anderson & Boyle, supra n. 58. 65 Mowbray, Alistair (2004). The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights, Hart Publishing. 66 Noted simply on the ECHR website as a frequently asked question for applicants: “You do not need to be a national of one of the States bound by the Convention. The violation you are complaining of must simply have been committed by one of those States within its ‘jurisdiction’, which usually means within its territory.” See: http://echr.coe.int/ (last visited 17 July 2009).

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6.6.2 The Right to Life Should the Probo Koala case have taken place inside one of the states party to the ECHR, the most powerful human rights article available to victims would have been a claim against Article 2, which safeguards the right to life. The Court has recognized that it is the duty of states to not only protect citizens from actions of agents of the state which could result in the taking of life,67 but also to take appropriate forward-looking, positive actions to safeguard life.68 Article 2 issues emerge in a pollution context when actors engage in regulation involving the use of the environment that can have dangerous and foreseeable effects on human life. The most notable case in this regard is Öneryildiz v. Turkey.69 The Öneryildiz case involved the death of family members of the applicant following an explosion at a garbage dump near their family’s home. The Court found that the state knew and tolerated the housing, although the development was technically illegal. Through the toleration, the state did not fulfill its positive obligations under Article 2 to safeguard the lives of its citizens within the known probability of exactly such an explosion. The question before the Court was not whether the citizens involved had a right to a certain environment, but whether the state’s failure to regulate the housing on the basis of the dangerous environmental conditions violated the positive to safeguard human life. In that sense, Article 2 created a derived obligation for the state to proactively regulate dangerous environmental scenarios. The positive obligations to safeguard life vis-à-vis the environment arise not only in situations where a death has occurred either. The Court has also found that the positive duty arises in situations where there was a danger of loss of life.70 The danger itself touches on the state’s promise to enforce the Convention. Therefore, victims of a Probo Koala-type dumping who became sick have a claim against the state for potentially failing to protect their Article 2 rights. Given the actual loss of life and the toxicology reports from the actual case, the fact that they are still alive is more an act of providence than of proper human conduct. Where the Probo Koala case differs, however, from other environmental cases brought as violations of Article 2 is in the level of possible foresight by state authorities. In the Öneryildiz case, it was clear that the state authorities knew of the danger posed to the houses and occupants surrounding the rubbish tip and still did nothing.71 It is far less clear what an applicant could claim regarding the Dutch national authorities’ foreknowledge of the possibility of an unsafe disposal as they inspected the Probo Koala’s slops in the actual case. The situation can be further muddied by any hypothetical regulatory situation where multiple agencies must act in concert. But unlike a criminal situation where

67 Which

was the primary purpose in composing Article 2. Ibid., p. 25. supra n. 60, para. 71.

68 Öneryildiz, 69 Ibid. 70 See

Markaratzis v. Greece, judgment of 20 December 2004 (Grand Chamber). supra n. 60, para. 101.

71 Öneryildiz,

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fault cannot be established when a multitude of minor actors all met their duty of care, the human rights body can rule against the state here for failing to sufficiently protect despite the many overlapping but ultimately futile regulations. Furthermore and related to this protection is the expressed procedural aspect of positive obligations under Article 2. As shown in the Öneryildiz case, in the event of an environmental tragedy there should be domestic procedures in place capable of determining the chain of command which failed, and hence, to find who is responsible. The history of the Probo Koala case shows that this procedure is something quite convoluted and difficult, and we have yet to see whether the methods available will indeed reveal the culprits. Placing a situation like this under the human rights spotlight though, places the burden on the state to show that they met positive obligations to safeguard life and to investigate lapses in that protection in the event of failures.

6.6.3 Right to Respect for Private Life and the Home The original dumping is only part of the problem in Abidjan. The local residents report that in several places the waste is still present. If such was the case inside Europe, the citizens in the area would have access to Article 8 of the Convention: a right to respect for private and family life. Here, as with rights protected in Article 2, the Court has found positive obligations to safeguard the quality of private life and the amenities enjoyable in a home setting by properly regulating the external environment.72 Signatory states must put procedures in place to balance the use of the environment with often the unavoidable detriment to personal life that utilizing environmental resources causes. The Court has already heard cases where sounds,73 smells,74 emissions,75 and industrial processes76 have encroached on the positive obligation to safeguard the home.77 While the state enjoys a wide margin of appreciation in determining how to strike this balance, the citizens enjoy a narrowing of that margin as the danger they are exposed to increases.78 That is important, as a defendant state will likely argue that the environmentally damaging activity is in the economic interest of the community. That may be so, but the state’s allowance of the damage must be proportional to the level of benefit to the community. Larger damage necessitates greater offsetting benefits, bounded 72 Powell

& Raynor v. the United Kingdom, judgment of 21 February 1990. & Others v. the United Kingdom, judgment of 8 July 2003 (Grand Chamber); Powell & Rayner v. the United Kingdom, judgment of 21 February 1990; Moreno Gómez v. Spain, judgment of 16 November 2004. 74 López Ostra v. Spain, judgment of 9 December 1994. 75 Guerra & Others v. Italy, judgment of 19 February 1998. 76 Fadeyeva v. Russia, judgment of 9 June 2005. 77 Article 1 of Protocol 1 also serves to protect property and possessions. 78 Fadeyeva v. Russia, para. 69. 73 Hatton

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of course by other Convention rights such as the right to protection of life. As the shipment of hazardous waste is highly regulated, largely because of its potential consequences for human life, the state in this situation would have limited recourse to such economic justifications. Even if permitted, the activity would have to conform to local regulations and permitting, as well conforming to the positive obligations put on the state to allow access to information concerning dangerous activities that potentially infringe on Article 2 and 8 rights.79 This last point deserves greater explanation. Article 10 of the Convention safeguards the right to receive and impart information. While this does not impose a positive duty on the state to collect and disseminate information80 it does secure a right to access information, especially information relevant in a citizen’s decision to bear risks. Insofar as the citizen has a positive right to access information, the state has an obligation to provide access to it, and this positive obligation again grows proportionally with the risks involved.81 This Convention-based – and in some respects, derived – right is now backed-up by the United Nations’ Aarhus Convention.82 The Aarhus Convention focuses on access to justice via granting the rights of all citizens to first receive environmental information and second to participate in environmental decision making. Although a self-standing UN instrument wholly separate from the ECHR, its goals of protecting the human environment through information sharing and participation serve to reinforce Convention jurisprudence and national legislation. The combined effect is to enable enforcement via access to information held by public authorities engaging in health/environment tradeoffs. The forward focus of both Convention-derived information rights and the Aarhus Convention speak to increasing positive obligations on states above protections to life and property. And in the case of a convoluted clean up, or difficulties in receiving medical information from national healthcare providers, it becomes less likely that the state is meeting their positive obligations to those continuing to live in an affected area. Therefore, situations similar to the Probo Koala dumping become the likely environmental problems to trigger claims alleging failure of rights guaranteed under one or both instruments.

6.6.4 Rights to Process and Remedy Difficulties in managing the aftermath of environmental pollution can trigger Convention rights above and beyond the derived rights to information. Convoluted, excessively long, or ineffective legal process may also call into question a state’s 79 Council

of Europe, p. 17. v. Italy, para. 53. 81 Council of Europe, p. 53. 82 Formally, United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. 80 Guerra

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ability to provide access to justice, and thereby raise issues under Article 6.83 Article 6 provides a right to a fair trial, which has been expanded by the Court’s jurisprudence to include a right to access the court system.84 The basic dynamic desired is for national authorities to provide a domestic forum to dispute and define civil rights and obligations. If the requisite dynamic does not exist to the extent a plaintiff believes it should, they can appeal to the Convention alleging that the lacuna affects the determination of their civil rights under domestic law. In the environmental context, the relation between the civil right and the environmental damage must be quite direct.85 While some national constitutions clearly establish a constitutional right to a certain quality of environment,86 this is still the exception, not the rule.87 Furthermore, it is difficult to claim Article 6 infractions before an environmental problem occurs, limiting access to claims against Article 6 as ex post options. Nevertheless, the protection provided by Article 6 serves as a motivation for national authorities to have and maintain just and effective domestic procedures for all types of possibilities. This reinforces the foundations of positive obligations under the ECHR. In addition to Article 6, Article 13 provides more flexibility in its application to environmental situations. Article 13 guarantees that where a possible violation of Convention rights exists, there is also an effective remedy should the applicant succeed in their argument.88 Notably for the applicant, a violation of the claimed Convention right need not be found in order to succeed in a claim alleging a missing remedy.89 Article 13 can be viewed as empowering victims in situations such as those that the Aarhus Convention also tackles. Like the powers of Article 6, the rights secured under Article 13 are a motivation for a state to create and maintain a well-functioning judicial system, and, where necessary, to take up legislation that would more effectively secure the rights under the Convention. As we saw with outcomes from obligations to secure right to life, this is the key difference relative to criminal and tort proceedings. One can quickly see that 83 Procedural

environmental rights are the form of an environmental right most supported by Alan Boyle. See Boyle (2007). ‘Human Rights or Environmental Rights – A reassessment’, Fordham Environmental Law Review, 18, 471. 84 Golder v. the United Kingdom. Judgment of 21 February 1975. 85 Balmer-Schafroth and Others v. Switzerland, case no. 67/1996/686/876, Grand Chamber judgment of 26 August 1997. 86 E.g. Zander v. Sweden, application 14282/88, judgment of 25 November 1993; Taskin, supra n. 54 para. 117. Also see Hayward (2005) supra n. 58. 87 Bothe, M. (1998). ‘The Right to a Healthy Environment in the European Union and Comparative Constitutional Law’, in: Développements récents du droit européen de l’environment, Antwerpen, pp. 1–9. 88 Leander v. Sweden, para. 77. 89 Klass & Others v. Germany, application no. 5029/71, judgment of 6 September 1978, para. 64; Silver and Others v. the United Kingdom, judgment of 25 March 1983, para. 113. Also note Hatton & Others v. the United Kingdom, supra n. 73 where a violation of Article 13 was found in spite of no violation of Article 8 being found.

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although there is no explicit Convention right targeting or preventing environmental tragedies, the rights-based pathways that do exist, however indirect they may be, add real and significant pressure to the existing legal pathways. It is beyond the scope of this article too, to show exactly the forms that national legislation would expand into should they take the growing jurisprudence of derived environmental rights most seriously. Rather, here we simply point out, in light of the known shortcomings of the criminal and tort proceedings, how the rights approach changes the legal terrain in ways untouched by traditional legal action.90 And above the financial rewards for victims and punishment of those responsible, the ECHR-based mechanism will bring pressure to national legal systems to put laws and processes into place that would act to prevent future environmental problems and provides effective remedies for victims.91

6.7 Extraterritorial Application of the Convention The preceding discussion, however, operates purely in the realm of introduction. The facts behind the failures that caused the Abidjan pollution would test the boundaries of the ECHR jurisprudence. It is, nevertheless, an interesting question, especially given that it was largely the outcome of a lack of effective compliance with international and European law governing international movements of waste. As the first sections of this paper reveal, the legislative was there, but spread over areas of competence and regulatory bodies. Thus, the failure to effectively coordinate the different actors created the eventual failure. There has been active debate in the Court as to when and where failures in State Parties’ ability to regulate trigger responsibilities under the Convention. This has most often occurred in situations where a state, or an actor associated with the state, is acting outside their own territory.92 Article I of the Convention confines the obligations of contracting parties to persons “within their jurisdiction.” The question then becomes what constitutes jurisdiction? Clearly, jurisdiction is something other than territorial boundaries. Jurisdiction in international law is defined as the area of competence of a State or regulatory body to make and carry out rules of conduct

90 That

rights-language changes the game was pointed out early by: Stone, D. Christopher (1972). ‘Should Trees Have Standing – Toward Legal Righs for Natural Objects’, Southern California Law Review, 45, 450–501. 91 See also Birnie, Boyle & Redgewell (2009). International Law the Environment, Oxford University Press, p. 270. As further anecdotal evidence of how international instruments can put pressure on national legislatures, note the pressure Principle 10 of the Rio Declaration has exerted on national legislatures to facilitate effective access to justice has undoubtedly led to developments in protection of the environment “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level.’’ Principle 10 para. 1 of the Rio Declaration on Environment and Development. 92 A recent panel discussion touches on many of the debated issues. See Roberts, Anthea et al. (2006). ‘The Extraterritorial Application of Human Rights. Panel Discussion’, in: American Society of International Law Proceedings, 100, pp. 85–102.

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on people.93 There is no question that persons within the contracting parties’ borders are considered to enjoy the protections of the Convention, as the state has clear jurisdiction over those who could act against domestic citizens. But there are also actions in which states can take part where their jurisdiction seems to creep outside of its own territorial borders. The clearest example is during military conflicts. The Court’s leading case in the matter of extraterritorial jurisdiction, Bankovi´c v. Belgium, took place amid the NATO missions into Serbia.94 That highly politicized case was ruled inadmissible because the situation was not characterized by the states’ having “effective control” over the situation or territory; that is, their lack of control was a sign of lack of jurisdiction.95 In the eyes of the Court, the Member States’ extraterritorial responsibilities to the Convention are not absolute, but are proportional to the amount of control possessed. This doctrine of effective control has been outlined in other extraterritorial cases, but predominately in the question of the use of state-sponsored force outside its borders.96 Although the ECtHR has been arguably more conservative here than in their expansion toward environmental rights, the jurisprudence does outline a degree of legal certainty to states in assessing the potential consequences of their extraterritorial actions. In addition, there is international precedent for state’s obligations to exercise control over private entities; an idea that goes quite far back in international law97 and includes situations where a state may have failed to take necessary precautions to prevent effects caused by a corporate entity.98

93 Lowe,

V. (2003). ‘Jurisdiction’, in: M.D. Evans (ed.), International Law, Oxford University Press, p. 329. 94 Bankovi´c & Others v. Belgium and 16 Other Contracting States, Grand Chamber Decision as to the Admissibility of Application no. 52207/99, judgment of 14 November 2000. (inadmissible). 95 Id., para. 84. Notably, a similar finding would be likely interpreting the issue under the umbrella of the UN’s Human Rights Covenants as well. See M. Dennis, M. (2006). ‘Application of Human Rights Treaties Extraterritorially During Times of Armed Conflict and Military Occupation, ASIL Proceedings’, American Society of International Law Proceedings, 86, 100, 90. 96 Esp. Loizidou v. Turkey, application no. 15318/89, Chamber judgment of 18 December 1996; Cyprus v. Turkey, judgment of 10 May 2001; Öcalan v. Turkey, application no. 46221/99, Grand Chamber judgment of 12 May 2005. Notably, the admissibility of the Loizidou case also enunciated that “registered ships and aircraft” are partly within the State’s jurisdiction wherever they might be. See Admissibility of Application Nos 15299/89, 15300/89, 15318/89, decision of 3 April 1991 at para. 32. Cf. M. Kearney, Extraterritorial Jurisdiction of the European Convention on Human Rights (2002) 5 Trinity College Law Review. 126, 137. 97 Trial Smelter Case (U.S. v. Canada) 3 R.I.A.A. 1905 (1938 & 1941); discussing trans-boundary environmental burdens. 98 See Robert McCorquodale in The Extraterritorial Application of Human Rights, Panel Discussion in supra n. 82, citing Case Concerning United States Diplomatic Consular Staff in Tehran (U.S. v. Iran). Judgment 1980 ICJ Rep. 3, paras. 57, 69–71. A State can also share responsibility when they aid or abet a corporate national operating internationally. Acts that can be attributed to the state fall within the ambit of the International Law Commission’s (ILC) Articles

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Combined with the positive substantive rights, states are therefore well aware that they have “objective obligations” under international law that can extend their liability beyond their borders.99 Flowing from these precedents, the case can be made for the application of the ECHR to situations where a state fails to properly regulate a third-party and thereby effects a human rights violation, situations like the Probo Koala dumping. While there is still elbowroom in which a violation could take place, the multitude of established and growing human rights components have the potential to be a far more inclusive control structure than anything under civil or criminal law.

6.7.1 Extraterritoriality and the Dutch Role in the Probo Koala Case The Probo Koala case is clearly not a question of state-sponsored action outside its borders.100 It is, however, a case that finds a member to the ECHR acting at home where its operations are supposed to effectively control a prohibited action.101 The action that should have been prevented by that effective control was then carried out outside the jurisdiction of the contracting state. Thus, the new question arises of whether the actions of a state over a private entity within its borders failed to provide human rights guarantees.102 The answer is on an important level dispositive of whether or not the Netherlands secured the positive rights of any citizens delineated by the ECtHR’s jurisprudence, irrespective of where they are located. As on the Responsibility of States for Internationally Wrongful Acts. (2001) UN GAOR. 56th Ses. Supp No 10, UN Doc A/56/10(SUPP). 99 See Kearney, supra n. 96 at p. 131; noting the addition of the adjective, ‘primarily’, in the wording of (1999) Appl. No. 25781/94, Eur Comm HR at para. 71, suggesting that those within their jurisdiction are not the only set of individuals receiving rights from the Convention. 100 Arguments to limit the reach of the Convention, besides the limits set by the doctrine of effective control, are legitimate. Notably, and similar to the arguments of NATO in the Bankovi´c case, one could argue that if the framers of the Convention had wanted to secure rights in all situations, they would have worded the Convention similar to the Geneva Conventions. See Bankovi´c, para. 25, 40, 75, 80; Also T. Abdel-Monem, How Far Do the Lawless Areas of Europe Extend? Extraterritorial Application of the European Convention on Human Rights (2005) J. Transnational Law & Policy 14, 159 at 185. Further, compare: Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) under which contracting parties take obligations to people “within its territory and subject to its jurisdiction”; also a more restrictive wording. 101 See id. establishing that the ECHR does apply to members’ actions abroad if their operations can be said to fall within the member state’s sphere of effective control. Also Report of the Committee on Legal Affairs and Human Rights, Areas where the European Convention on Human Rights cannot be implemented, Eur. Parl. Doc. 9730, \S V para. 41 (11 March 2003). 102 The Court has also established that acts or omissions on the part of the State which affect persons outside of jurisdiction, the responsibility of that State can be engaged by the Convention. See Stocké v. Germany, case no 28/1989/188/248, judgment of 18 February 1991, where potential unlawful collusion between German police authorities and a private investigator were acknowledged to potentially involve violation of Convention rights. The rights claimed were later found not to be violated.

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such, the answer will indicate whether the country at hand must change its national legal oversight. In the instant case, it is clear that the omission of effective control over the Probo Koala in the Port of Amsterdam was decisive for the rights of the effected individuals. The location of the individuals is immaterial to those facts, as the Convention is very clear that the applicants must not be nationals of a state bound by the Convention.103 What matters, however, is whether there is a foreseeable causality chain between the omissions and the eventual pollution. The Dutch actions were decisive for the human rights violations, if not necessarily foreseeable in specifics. The failure to act may not be extreme enough, given the ambiguity of the relevant regulations, to find violations in criminal or tort law, but as noted above it is less likely that the failure to act would hold up against positive, human rights-based requirements. It was clear from the actions of the port authority that they were concerned as to what would become of the abnormal waste should they allow the ship to take the slops already pumped onshore back into their cargo hold. The level of concern can be quantified if one deduces whether they failed to chain up the Probo Koala because they were unsure of their jurisdictional powers, or whether they were unphased by the abnormal slops. If the reason was the former, there is a clear failure of the regulatory structure to effect the provisions preventing the shipment of hazardous waste, and thus questions the state’s positive obligations. The legal question then is whether one could establish a link between failures to act or regulate in a way that would guarantee the rights in the Convention at the port which parallels the jurisprudence of positive obligations in environmental matters. The benefit would be both satisfaction for the victim, and an overhaul of the regulatory structure in place necessitated by the attention of a powerful human rights court. Was there a violation of the state’s positive obligation to safeguard life or a private and amendable home atmosphere though? This is not a simple question to answer. A defendant state in a similar situation would naturally argue that these rights were not within their power to guarantee to the foreign nationals, nor are they under Convention obligations to do so. But, as the port authorities can never know where a ship with dangerous pollutants will be headed or what they will do once they leave the port, there is precious little besides speculation that the waste would not end up within their own borders, or the borders of other Convention members. The foresight dilemma here would make for an interesting litigation within the Court. The judgment would certainly render a new interpretation, and, potentially, a new boundary to the Convention’s applications. Above the specifics discussed here, the general “effectiveness principle” employed by the Court in their interpretation of the Convention leads to the conclusion that it should indeed cover the damage to human rights in the Abidjan case. The Court has held that the responsibilities inherent to the Convention must be practical and effective in the pursuit of human

103 Supra

n. 66.

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rights.104 The Court must step in where “the domestic legal system. . . fails to provide practical and effective protection of the rights guaranteed.”105 To the extent that port authorities throughout Convention countries can never know where ships carrying waste may go once they leave their ports, the domestic legal systems must take this into account to actively guarantee the human rights already known to be impacted through environmental wastes. It may still be too early to hope that the Court would be amenable to reading this deeply into the situation, especially in the wake of the Bankovi´c case.106 Nevertheless, the fact that it could have once been entertained leaves open the door for it to once again become a reality, and indeed necessitates that legal scholars seriously discuss the possibility, lest we continue to cast doubt on the effectiveness of our carefully crafted national regulatory bulwarks in the storm of globalization.

6.8 Human Rights and Corporate Responsibility When one steps away from the theoretical field of applying the ECHR to the Abidjan case, and the larger calls for an environmental right amidst the existing human rights canon, one can glimpse one more new field of legal inquiry: corporate social responsibility. Even if the nexus of responsibility in the instant case is not wide enough to bind such corporate entities of Contracting Parties under the ECHR, are there other international instruments that bind the corporations directly? The European Parliament has acknowledged a potential loophole in prevailing oversight long before the Probo Koala pollution. The Parliament called on the European Commission to develop a framework to bind their corporate arms to a European level of conduct outside the Community.107 Such a framework might include instruments like the Alien Tort Claims Act in the United States, which afford foreign citizens access to domestic courts in the event of an accident.108 Europe has been less amenable to such claims, but there is a slow change in the global picture that is promising for the individual arrayed against a transnational corporation. The willingness of national and international courts to involve themselves in the interaction of third parties and citizens of different countries is reflected in global human rights and national law; the United States has opened up their national law to foreigners via the Alien Tort Claims Act, while Europe has opened up its human rights

104 Artico

v. Italy, application no. 6694/74, judgment of 13 May 1980, at 33.

105 A v. the United Kingdom, application no. 15599/94, judgment of 18 September 1997 at para. 48. 106 DeSchutter, O. (2005). ‘The Accountability of Multinationals for Human Rights Violations in European Law’, in: Non-state Actors and Human Rights, Oxford University Press, pp. 491–512. 107 Resolution on EU Standards for European Enterprises Operating in Developing Countries: Towards a European Code of Conduct, 1999 O.J. (C 104). Also note UN Norms on Responsibilities of Transnational Corporations, UN Doc. E/CN.4/Sub2/2003/12/rev 2 (2003). 108 28 U.S.C. §1350. See Steinhard, R.G. (2005). ‘Corporate Responsibility and the International Law of Human Rights: The New Lex Mercatoria’, Non-State Actors and Human Rights, Oxford University Press, pp.177–226, at 198–202. Also Wouter and Ryngaert, supra n. 11.

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system. The overarching picture then is that courts globally have embraced a consensus that “the state’s tolerance of a private human rights abuse actually violates the state’s duty to protect the right through legislation, preventative measures, or provision of a remedy.”109 The potential is there, but there remain concerns. The most pressing in the present climate of expanding jurisprudence is to coordinate legal efforts. The goal is the protection of the environment, and first priority therein is the securing of human rights from increasing environmental burdens. Globalization certainly is not poised to reduce its burden, and until legal theory gets together and reaches a consensus on how best to protect what is important, courts will continue to create ad hoc solutions. The unplanned and arguably haphazard expansion of multiple areas of rights and obligations under national and international law might well turn into a thicket of overlapping requirements, all as prone to error as those in the Probo Koala case. The desired coverage may be there, but it might emerge as far less efficient or even effective as a unified protection.110 Forcing the jurisprudence to develop in a single direction by comparing the environmental problem to the environmental right appears, in light of the success of the ECtHR, to be the foremost guiding light for academics. And all of this is motivated by the less than stellar performance from utilizing existing non-human rights methods. Ratner111 summarizes the situation that “[w]ithout some international legal standards, we will likely continue to witness both excessive claims made against actors for their responsibility and counterclaims by corporate actors against such accountability.” It is cases like the Probo Koala that bring these issues to the forefront.

6.9 Conclusions In this contribution we set out to answer the question whether a transnational response to relieve the need of victims of transnational environmental pollution is required, and if so, what response would be in order. The first part of the question should be answered with a firm “yes.” It is clear from the Trafigura case that the victims and the people that try to represent them meet a range of obstacles when trying to hold both the polluters and government agencies which did not correctly apply existing law accountable for their (in)action(s). The case study shows that, entirely within itself, there exist plenty of legal rules designed to protect the environment in developing countries from shipments of waste from the developed parts of the world. The problem is all about the lack of enforcement and the lack of possibilities for the

109 Ratner,

S. (2002). ‘Corporations and Human Rights: A Theory of Legal Responsibility’, Yale Law. Journal, 111, 443, 470. 110 “So long as environmental rights cases are brought individually, the ability to develop a systematic jurisprudence will be limited’’ Osofsky, Hari. M. (2005). ‘Learning from Environmental Justice: A New Model for International Environmental Rights’, Stanford Environmental Law Journal, 24, 71–147. 111 Ratner, supra n. 109, at 448.

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victims to access various countries’ judicial systems in order to get compensation for their loss. In our view, the current legal system, both nationally and internationally, is not well-equipped to handle cases of transnational pollution, especially when developing countries are involved. We have shown that within Europe, both EU law and the European Convention of Human Rights do offer some possibilities, but for African victims these are difficult, if not impossible, to effectuate. There are several pathways that should be explored to improve the rights of victims in cases of transnational pollution in the trail of globalization. We touched upon several here. First of all, the access to justice for victims from developing countries for actions that took place in the developed world should be improved. This is in line with the expanding notions of “jurisdiction’’ and could be done by amending the Aarhus Convention to specifically include cases brought forward by non-nationals against government bodies that are responsible for wrongly (or not at all) applying the relevant legal provisions that caused damage outside their jurisdiction, or even outside the jurisdiction of any of the parties of the Aarhus Convention. As shown above, it is not unthinkable that African victims can successfully pursue a claim against a European state before the European Court of Human Rights. However, on the basis of current jurisprudence, such a claim is surrounded by legal questions. We therefore also suggest the idea of testing the boundaries of the Court with an experimental case, like the one here, so that case law on this issue can be further developed and defined. Second, international liability law has not yet been developed well enough to accommodate victims of transnational pollution. The only instrument that does seem to cover the needs of the victims is the Liability Protocol to the Basel Convention. This protocol, however, still is a long way from entering into force. Firm international action is needed to have the protocol ratified by more states. The EU instruments with regard to liability for damage caused by transboundary shipments of waste are not aimed at the victims at all, which is a severe shortcoming. The EU is sadly lacking any follow-up to the 1999 Resolution of the European Parliament to develop a framework to hold multinational corporations accountable for their actions in developing countries, for instance by introducing an instrument that allows victims of actions by multinationals with offices in the EU to start a tort procedure against that multinational before an EU court. The Alien Tort Claims Act in the US may offer an inspiration when studying a new and revolutionary instrument like this. Third, we think that some practical arrangements have to be made, in order to relieve the needs of the developing countries’ victims of transnational pollution. One of these practicalities would have to include the creation of a flexible and easy to access system of legal aid. Also, a fund to cover immediate costs, in anticipation of the outcome of the legal procedure, is necessary. The case shows that it can easily take many years before courts reach a decision. In the meantime victims will need clean water and food or even a basic income, in case they lost their jobs as a consequence of the pollution, such as the Abidjan farmers and fishermen. These basic needs are the first to be damaged by an environmental problem such as this, and

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often the last to be rectified after years of investigation, litigation, judgments, and finally, settlements making their way to the victims. Despite the blatant failure of international law to prevent a tragedy that it was put in place to prevent, there is hope for a progressive outcome here. The members of the various European treaties have shown themselves – both in national legislation and international courts – to be quite proactive in their defense of the human environment. They, above other areas in the world, have shown a willingness to expand their concept of human rights to include the difficult-to-circumscribe relations between humans, fundamental freedoms, and the environment. There has even been excellent forward motion toward establishing rights to information as a necessary support to the guarantees of rights. Seen as a whole, the momentum clearly exists for changes and expansions of existing documents such as we suggest here.

Part III

Victim Protection in Cyberspace

Chapter 7

The Challenge of Identity Theft in Multi-Level Governance: Towards a Coordinated Action Plan for Protecting and Empowering Victims Nicole van der Meulen and Bert-Jaap Koops

7.1 Introduction On October 2, 2007, newspaper headlines reported how New York Mayor Michael Bloomberg became a victim of identity theft. While, as Sewell Chan1 writes, “[y]ou might think a man worth at least $5 billion would hardly notice if $400,000, or so went missing,” someone else did. Robert M. Morgenthau, the Manhattan District Attorney, charged two men with stealing or attempting to steal from personal accounts belonging to the mayor. Bloomberg is simply another name on the long list of high-profile identity theft victims. In addition to joining the group of celebrity victims like Oprah Winfrey, Tiger Woods, and Steven Spielberg, Mayor Bloomberg also joins a much larger group of non-celebrity victims of identity theft, in the United States and in other areas of the world. Such victimization has been going on for a considerable time – already in the early 1990s, TransUnion LLC received over 35,000 complaints from consumers about identity theft.2 Since then, many developments have taken place in society, not the least the rise of the Internet, and this has led to significant changes in the forms and prevalence of identity theft. Perpetrators have managed to take advantage of the developments in society, especially developments related to information and communications technologies, to create innovative methods to gather personal identifying information and to subsequently abuse it for a variety of benefits. Furthermore, identity theft began to spread across the globe.3 Whereas many outside of the United States initially viewed identity theft as an exclusively American N. van der Meulen (B) HEC – The Centre of Expertise, The Hague, The Netherlands e-mail: [email protected] 1 Chan,

S. (2007). ‘The Latest Victim of Identity Fraud: Mayor Bloomberg’ (2007) The New York Times, 2 October. Available at: http://cityroom.blogs.nytimes.com/2007/10/02/the-latest-victimof-identity-fraud-mayor-bloomberg/?hp. 2 Katel, P. (2005). ‘Identity Theft: Can Congress Give Americans Better Protection?’ The CQ Researcher, 15, 517–540. 3 Eg. Van der Meulen, N.S. (2006). The Challenge of Countering Identity Theft: Recent Developments in the United States, the United Kingdom, and the European Union 159 R. Letschert, J. van Dijk (eds.), The New Faces of Victimhood, Studies in Global C Springer Science+Business Media B.V. 2011 Justice 8, DOI 10.1007/978-90-481-9020-1_7, 

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problem, complaints in, among others, the United Kingdom, Australia, Canada, Belgium, and the Netherlands provided evidence to the contrary. Identity theft, as many recognize and acknowledge now, is a global problem and generates victims all around the world. As a result, the challenge to counter identity theft is an international challenge which requires significant cooperation and coordination among different stakeholders at both national and international levels. This chapter tries to answer the following central research question: What multi-level action plan is required to help and empower victims of identity theft, particularly in the context of the Internet? We first provide a synopsis of a number of pertinent discussions with regard to identity theft. These issues include the lack of a universal definition, the lack of reliable prevalence data and the methods used by the perpetrators. The sections lead into an overview of victim profiles and the various impacts victims experience as a result of the crime. This sketch is essential in light of the rest of the chapter, where we will provide an overview of actual and desirable measures to combat identity theft. We do this in the form of a fairly comprehensive action plan that covers the most important activities in the area of prevention and repression of the crime, with special regard to the needs of victims. Since such a comprehensive action plan is not immediately feasible to implement, we end with a reality check in which we focus on some particular challenges for multi-level governance that the fight against identity theft poses.

7.2 Identity Theft 7.2.1 The Concept and Prevalence of Identity Theft Several discussions with regard to identity theft continue to surface any time the topic is mentioned or even touched upon. One of these discussion issues is the definition of identity theft. Despite its presence during the past decade, identity theft continues to be an “indefinable” phenomenon. Not indefinable per se, but merely unable to be captured by a definition which the majority of people can agree with. Its multi-faceted nature and links to other crimes have certainly complicated the introduction of a workable and universally acceptable definition. Disagreements generally occur about what to include in the definition. Identity theft is basically a two-stage process. The first stage involves gathering identifying data of a specific individual or unspecified individuals in a group of potential victims. The second stage involves using these data in some unlawful way, usually to gain a benefit (financial identity theft) or to put blame for a crime on someone else (criminal identity theft). It depends on the definition whether the first step already constitutes identity theft as such – some authors consider identity

(Tilburg, INTERVICT). available at: http://www.tilburguniversity.nl/intervict/publications/ NicolevanderMeulen.pdf.

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theft committed only when identifying data are used during the second stage,4 but others think the first stage is already sufficient, particularly if there is the “intent” to commit a subsequent crime.5 This is important for assessing victimization: the number of victims is much higher when the first stage in itself is also taken into account. Media regularly report “Two million credit card holders victim of identity theft” when account data are leaked or hacked, without knowing which proportion of these accounts were actually defrauded as a result. We should be wary of blowing up the incidence of identity theft by focusing too much on the first stage: true victimization, in our opinion, only occurs when the second stage is reached. Another significant point of discussion with regard to the definition issue is the inclusion of incidents of account takeover. Account takeover includes for example the “old” crime of credit card fraud, which is, according to some, not a form of identity theft. We consider identity theft as “fraud or another unlawful activity where the identity of an existing person is used as a target or principal tool without that person’s consent,”6 which does include account takeover, since identity information is used here as a principal tool to commit fraud. In addition to discussions about definitions, discussions about prevalence continuously take center stage. With regard to available data, the United States leads the way. The introduction of a consumer complaint center along with a number of studies provided authorities in the US with figures about identity theft, albeit figures which receive considerable criticism with regard to validity and reliability, and often rightfully so. In 2007, three studies came out around the same time, as Adam K. Levin notes, “all with curiously conflicting results. Depending on which report you read, it was either good news (identity theft is dropping) or more bad news (identity theft is escalating).”7 Gartner concluded that 15 million Americans were victimized by identity theft in 1 year, which was a 50% increase over results publicized in 2003. Javelin Strategy & Research, on the other hand, reported that the number of victims of identity theft dropped by half a million in 2006, as opposed to 2005. The majority of criticism about the contradictory results is directed at the Javelin study, which proudly proclaimed that “[c]ontrary to popular belief, identity theft is actually going down.”8 The United Kingdom also has some limited figures on the prevalence of identity theft within its territory. The Credit Industry Fraud Avoidance System (CIFAS) saw a rise in consumer complaints from 9,000 in 1999 to a peak of 80,000 complaints in 2006, decreasing slightly in 2007 to 77,500. The Home Office also published statistics on plastic card and identity fraud in 2007. 4 Koops,

B.-J. & Leenes. R. (2006). ‘ID Theft, ID Fraud and/or ID-related Crime. Definitions matter’, Datenschutz und Datensicherheit, 30, pp. 553–556. 5 Acoca, B. (2007). Scoping Paper on Online Identity Theft. Ministerial Background Report, OECD. 6 Koops, B.-J. & Leenes. R. (2006). ‘ID Theft, ID Fraud and/or ID-related Crime. Definitions matter’, Datenschutz und Datensicherheit, 30, pp. 553–556. 7 Levin, Adam K. (2007). ‘A Crime of Immeasurable Proportions’, Identity Theft 911 Newsletter 1–11, 4. Available at: http://www.identitytheft911.org/attachment.do?sp=895. 8 Javelins Study, Van Dyke 2007, 1.

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These statistics are the findings of the 2005/06 British Crime Survey, which posed questions to respondents in several categories, including plastic card usage. 83% of all respondents had used plastic cards during the previous year. Of all the respondents using plastic cards, 4% had become a victim of fraud during the previous year. The survey also provides data on identity fraud through the misuse of personal information. According to the findings, 2% of respondents had fallen victim to this type of identity fraud.9 On an international level, there are even fewer data. The International Crime Victims Survey (ICVS) of 2005 inquired whether respondents had been a victim of consumer fraud and if so, how this fraud had occurred. Overall, 11% of all national respondents reported being a victim of consumer fraud. More specifically, 9% of the consumer fraud victims indicated they had become a victim of Internetrelated consumer fraud, which means that 1% of all national respondents became a victim of Internet-related consumer fraud during the previous 12-month period. Victimization of this type of fraud was most prevalent in the United States and the United Kingdom.10 Altogether, the scarcity and sometimes contradictory nature of the available prevalence data make it hard to conclude how big the problem actually is. Nevertheless, it is safe to say that identity theft is a pressing social problem, about which an increasing number of countries show concern. Millions of people around the world face leakages of personal data which may be used for fraudulent purposes and a significant number of them indeed fall victim to financial losses. Moreover, they experience some forms of victimization that are particular for identity theft, such as being blacklisted from financial services. This holds particularly true for the United States, but may also be on the rise in other countries. In the next section, we describe in more detail the particularities of victimization.

7.2.2 Victims of Identity Theft 7.2.2.1 Victim Profiles In general, identity theft is a crime which can occur to anyone, as Mayor Bloomberg has experienced. Despite the fact that identity theft is indiscriminate with regard to its victims, certain citizens appear to be more prone to fall victim to the crime. Keith B. Anderson conducted a study to analyze whether certain citizens are indeed more likely to become victims of identity theft. “The risks faced by consumers do differ, and these differences may manifest themselves in differences across groups

9 Home Office Statistical Bulletin (2007). Mobile Phone Theft, Plastic Card and Identity Fraud: Findings from the 2005/06 British Crime Survey. Available at: http://www.homeoffice.gov.uk/ rds/pdfs07/hosb1007.pdf. 10 Van Dijk, J.J.M., van Kesteren, J.N. & Smit, P. (2008). Criminal Victimisation in International, Perspective, Key Findings from the 2004–2005 ICVS and EU ICS, The Hague, Boom Legal Publishers.

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with different demographic characteristics.”11 Without trying to blame the victim, Anderson identifies a number of factors which may increase the likelihood of identity-theft victimization for certain consumers. He predicts that factors such as having a good credit record, engaging in more transactions, and having a higher income level may make a consumer more likely to fall victim to identity theft. He concludes that “[t]he likelihood that a person will be a victim of identity theft does appear to be related to demographics,” identifying as relevant characteristics in particular: level of income, education, gender, age and household composition. “Consumers with higher levels of income are more likely to be victims of ID theft (. . .). Similarly, those with more education may be somewhat more likely to be victims.”12 Other findings of Anderson indicate that households with only one adult and women are more likely to be victimized. The results furthermore indicate that the elderly run a lower risk to become victims of identity theft. This contradicts the findings of other studies13 that identify the elderly as particularly vulnerable. Besides, additional sources indicate that the elderly are less likely to detect14 or report15 their victimization, which influences the reliability of the available statistical data. Nevertheless, Anderson seems correct in concluding: “Socio-Demographic Characteristics do matter. However, no one is immune from the risk of ID theft.”16 7.2.2.2 Types of Impact Identity theft can have different types of impact on individual victims and their lives. The Australasian Centre for Policing Research17 recognizes the following types of impact:

11 Anderson, K. B. (2005). ‘Identity Theft: Does the Risk Vary With Demographics?’ (Federal Trade Commission, Bureau of Economics Working Paper No. 279). p. 11. Available at: http://www.ftc.gov/be/workpapers/wp279.pdf. 12 Anderson, K. B. (2005). ‘Identity Theft: Does the Risk Vary With Demographics?’ (Federal Trade Commission, Bureau of Economics Working Paper No. 279). p. 23. Available at http://www.ftc.gov/be/workpapers/wp279.pdf. 13 Newman, G.R. & Megan M. McNally (2005). Identity Theft Literature Review. Available at: http://www.ncjrs.gov/pdffiles1/nij/grants/210459.pdf Finberg, J. (2003). ‘Financial Abuse of the Elderly in California’, 36, Loyola of Los Angeles Law Review, 667–691; Sylvester, E.L. (2004). ‘Identity Theft: Are the Elderly Targeted?’, 3, Connecticut Public International Law Journal, 313–341. 14 Statewide Grand Jury report: Identity theft in Florida. First Interim Report of the Sixteenth Statewide Grand Jury (2002). Available at: http://myfloridalegal.com/pages.nsf/ 4492d797dc0bd92f85256cb80055fb97/758eb848bc624a0385256cca0059f9dd!OpenDocument. 15 Synovate. (2003). Federal Trade Commission – Identity Theft Survey Report. McLean, VA: http://www.ftc.gov/os/2003/09/synovatereport.pdf. 16 Anderson, K. B. (2005). ‘Identity Theft: Does the Risk Vary With Demographics?’ (Federal Trade Commission, Bureau of Economics Working Paper No. 279). p. 24. Available at: http://www.ftc.gov/be/workpapers/wp279.pdf. 17 ACPR (Australasian Centre for Policing Research) (2006). Review of the legal status and rights of victims of identity theft in Australasia. Available at:http://www.acpr.gov.au/pdf/ ACPR145_2.pdf.

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• direct financial impacts – including the loss of savings; the cost of reporting and preventing the continued use of the identity; and the cost of restoring reputation; • indirect financial impacts – including the damage to credit rating; the damage to personal/business reputation; and creation of a criminal record; and • psychological impacts – these may vary considerably depending upon how the stolen identity is used. They may include the impact upon a family of the theft of a deceased person’s identity; the impact of the use of one family member’s identity by another family member; and the impact of the use of a stolen identity in criminal activity such as terrorism, people smuggling or drug offences. We will elaborate upon these different types of impact through a number of studies that have been conducted over the past few years with the specific aim to investigate victims and their experiences. Much of the information described and provided about victims and their experiences originates from the United States. The United States remains a leader with regard to the problem of identity theft and as such generally serves as the greatest source of information. While it is certainly useful to have more inside information on victims and the various related aspects, the global applicability of the information is limited. Certain aspects and impacts with regard to victims can and certainly do apply to victims across various countries, while other consequences or experiences are exclusively applicable to individuals residing in the US. 7.2.2.3 Direct and Indirect Financial Impacts Initially victims of identity theft failed to receive the necessary attention and recognition. Before identity theft became a federal crime in the United States in 1998, through the Identity Theft Assumption and Deterrence Act,18 law-enforcement officials did not acknowledge victims of identity theft as victims. During the years after identity theft became a separate crime, non-profit organizations began their research. The Privacy Rights Clearinghouse came with an important overview of victims, their experiences and their recommendations for better public policy in 2000.19 They spoke to sixty-six victims of identity theft and produced a groundbreaking document, Nowhere to Turn, which provides crucial insights about these victims and their experiences, for example, how victims of identity theft spent an average of 175 h actively trying to resolve their case. Victims generally need to contact the creditor, the debt collector, and the credit reporting agencies (CRAs) in an attempt to remove the bad credit charges from their records. The inaccurate bad credit charges ignite the most problems because they generally prevent victims from obtaining a new credit card, opening a bank account, renting an apartment, or even finding a job. These findings are not extraordinary as later studies prove. Since 2003, the Identity 18 18

U.S.C. §§ 1028 et seq. Rights Clearinghouse (2000). Nowhere to Turn: Victims Speak Out on Identity Theft. A Survey of Identity Theft Victims and Recommendations for Reform. Available at: http://www.privacyrights.org/ar/idtheft2000.htm.

19 Privacy

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Theft Resource Center (ITRC) periodically produces a more comprehensive and thorough analysis about the long-term impact of identity theft on victims. Through in-depth surveys, the ITRC attempts to surpass previous studies conducted by the Federal Trade Commission (FTC), the Government Accountability Office (GAO), and other consumer groups and explore other areas of victimization. For its first analysis, the ITRC used 180 victim responses, a larger group than previous studies of the Privacy Rights Clearinghouse and the GAO had used. According to the analysis provided by the ITRC20 , victims of identity theft spent an average of 600 h to resolve or at least try to resolve their case – considerably longer than the 175 h reported by the Privacy Rights Clearinghouse. The most recent analysis contains the results of research conducted in 2008.21 For the first time, the study also included victims of medical identity theft. These victims face a different set of consequences due to the distinct nature of this type of identity theft. The positive news from the 2008 analysis was that victims of account takeover spent an average of 56 h repairing the damages, which is a considerable decrease from several years earlier. True-name fraud victims, however, needed an average of 165 h to repair the damages, which is a slight increase from the year before when they needed 157 h. Usually, these hours are spread out over various years, which means the crime continues to haunt its victims. The most significant change reported in the most recent study is the moment of discovery. As the ITRC notes, “[t]his year only 34% of respondents discovered identity theft due to an adverse situation, down from 82% in 2007. This is a significant change in the manner by which the victim discovered the crime. Proactive measures in discovering the crime, by both businesses and victims, jumped from 8% in 2007 to 45% in 2008.”22 On the downside, the 2008 study also demonstrates the highest number to date of credit denials and credit card cancellations (70%).23 This blacklisting aspect is one of the many negative effects victims experience as a result of the crime. Another negative effect of the time-intensive procedure to resolve the crime is the potential for job loss of the victim. In Nowhere to Turn, “victims reported missing several days or weeks of work to put their lives back together, and two people even reported losing their jobs due to the time devoted to identity theft resolution.”24 The crime manages to have a domino effect on the lives of victims through not only stealing financial assets but also depriving victims of time which subsequently leads to potential job loss, deteriorated interpersonal relationships, and severe stress. As the ITRC concludes: 20 ITRC (Identity Theft Resource Center) (2003). Identity Theft: The Aftermath 2003. Available at:

http://www.idtheftcenter.org. (2009). Identity Theft: The Aftermath 2008. Available at: http://www.idtheftcenter.org. 22 ITRC (2009). Identity Theft: The Aftermath 2008, p. 3. Available at: http://www. idtheftcenter.org. 23 ITRC (2009). Identity Theft: The Aftermath 2008. Available at: http://www.idtheftcenter.org. 24 Privacy Rights Clearinghouse (2005). Nowhere to Turn: Victims Speak Out on Identity Theft A Survey of Identity Theft Victims and Recommendations for Reform, p. 5. Available at: http://www.privacyrights.org/ar/idtheft2000.htm. 21 ITRC

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[e]ven after the thief stops using the information, victims struggle with the impact of identity theft. That might include increased insurance or credit card fees, inability to find a job, higher interest rates and battling collection agencies and issuers who refuse to clear records despite substantiating evidence of the crime. This ‘tail’ may continue for more than 10 years after the crime was first discovered.25

The costs to individual victims appear to be significant and diverse. As the ITRC notes, “[v]ictims of identity theft experience various costs as a result of the crime. These costs include lost wages or vacation time, diminished work performance, increased medical problems, impact on family and friends, financial and other costs.”26 7.2.2.4 Psychological Impact Victims of identity theft also experience severe emotional reactions after the crime. In order to discover more about the emotional reactions of victims of identity theft, Tracy Sharp et al., conducted an exploratory study of the psychological and somatic impact of identity theft, as well as coping mechanisms used by victims.27 For their study, Sharp et al. recruited thirty-seven identity theft victims and placed them in six focus groups. The researchers provided the victims with two victim impact questionnaires. The first was administered 2 weeks after the victims discovered the incident of identity theft and the second 6 months after the discovery. The results of the first questionnaire indicated the following common reactions: irritability and anger, fear and anxiety, and frustration. During the second impact measurement, the results demonstrated how “the emotional responses shifted such that the majority (26%) of participants indicated that they were distressed and desperate, 24% stated that they were irritated and angry, and 14% (. . .) endorsed feelings of anxiety, fear, mistrust and paranoia.”28 Victims of identity theft thus experience similar feelings as victims of other crimes. Consequently, they generally need and deserve treatment which other victims have a right to during the aftermath of a crime. Sharp et al. recognize how “[t]he results of this study suggest that psychological impact is indeed great on victims of identity theft. Not only are there immediate emotional and physical consequences to the victimization, but also lasting effects are seen, especially in cases that have not met resolution.”29 The ITRC demonstrates similar results: they found many victims who in the short term felt defiled (37%) and betrayed (60%). Victims also acknowledged feelings of a loss of innocence (21%), and a sense of powerlessness (63%). Long-term feelings experienced by victims included the inability to trust people (30%), suicidal thoughts (4%), being ready to give up the fight (25%),

25 ITRC (2003). Press Release – The Aftermath 2003 Study. Available at: http://www.idtheftcenter.

org/artman2/publish/lib_survey/Press_Release_The_Aftermath_2003_Study.shtml. (2004), p. 13. 27 Sharp, T. et al. ‘Exploring the Psychological and Somatic Impact of Identity Theft’ (2004) Journal of Forensic Science, 49, 131–136. 28 Ibidem, p. 132. 29 Ibidem, pp. 133–134. 26 ITCR

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and the belief to have lost everything (10%) (ITRC 2009). This survey did, however, indicate a decrease in internal negative attitudes held by victims, such as guilt, shame, being undeserving of help, or feeling captive or suicidal. 7.2.2.5 Secondary Wounding and Secondary Victimization A particularly problematic aspect for victims of identity theft is their inability to prove their innocence. Due to lack of evidence, victims have to fight an uphill battle to convince law-enforcement officials, among others, that they fell victim to identity theft. The burden of proof rests with the victim, which is a significant weakness. The misplacement of the burden of proof along with the inability of law-enforcement agencies to adequately investigate identity theft cases generally leads to secondary victimization. There is also another aspect which could lead to secondary victimization, which is inherent to fraud victims and the way society perceives them. Pontell et al. describe how “elements inherent in fraud victimization may reinforce public and victim perceptions that they acted foolishly, and are therefore more blameworthy with regard to their own victimization.”30 Other reasons for secondary victimization include roadblocks victims run into with creditors and CRAs when they try to resolve their case. Victims need means to provide sufficient evidence for their case. For identity theft, proof or any kind of evidence is difficult if not impossible to obtain due to the nature of the crime. How can you prove something you didn’t do? Without any kind of evidence, however, CRAs, debt collectors, and creditors appear unwilling to help the victim and as a result the bad credit charges continue to contaminate victims’ records. As one victim notes, “[t]o the large creditors, don’t treat victims as though they are the culprits. We are having a difficult enough time without having to suffer more run-arounds. Hire people who do nothing but deal with these issues.”31 Throughout the years, however, research has demonstrated an increase in responsiveness from law-enforcement agencies, which is encouraging especially due to the fact that many victims criticize the treatment they receive from law-enforcement officials. With regard to financial service providers, businesses, and utility companies, no significant change occurred between 2003 and 2007.32

7.2.3 Methods and the Role of the Internet As noted above, identity theft takes place in two stages: collecting information, and using it for fraudulent purposes. This implies that an action plan to combat identity theft should focus on the first stage, where preventative measures are particularly relevant, as much as on the second stage, with repressive and restorative measures.

30 Pontell,

H.N., Brown G.C. & Anastasia Tosouni (2008). ‘Stolen Identities: A Victim Survey,’ in: McNally, Megan M. & Newman, Graeme R. (eds.). Perspectives on Identity Theft. Crime Prevention Studies, 23, Monsey, NY, Criminal Justice Press, p. 58. 31 ITRC (2004), p. 26. 32 ITRC (2007). Identity Theft: The Aftermath 2007. Available at: http://www.idtheftcenter.org.

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In order to determine what type of measures are required, some understanding is needed of the methods of identity theft and the pivotal role the Internet plays in this. Personal data abound. The past two decades have seen an enormous growth in databases that store ever increasing numbers and types of data about individuals, both in the private and in the public sector.33 Many of these data are relevant for identity thieves, not only directly identifying data like address or account number, but also indirectly identifying data like birthday or mother’s maiden name, which are often used by financial service providers in authentication processes. Perpetrators can collect identity data by accidentally stumbling upon them. This is not to be overlooked: losses of vast amounts of personal data are often reported, for example in various cases in the UK in the past 3 years. These data may be simply lost or be handed over to bona fide persons, but they can also be abused by finders or sold to some criminal organization. A far greater risk, however, is the active and intentional gathering of personal data.34 Perpetrators can assemble data from dustbins (e.g. credit card slips), mailboxes (e.g. angling bank cards or bank statements from insecure mailboxes), and computers (through hacking or malware). They can retrieve data from data subjects themselves, but also from e-tailors, service providers and telecommunication providers, through con-tricks like social engineering or phishing (deceiving people into providing personal data), or by force, for example through burglary or extortion. Moreover, many data are simply for sale on the market, both legally (via data brokers, particularly prominent in the US) and illegally (from organized crime groups). The latter seems to have become a “regular” market, with offers on websites to sell, for example, access data for a Citibank account with a balance of £10,044 for only C850, or 10 USA credit card numbers with full data for a mere C450.35 The process of data gathering is often iterative: starting with simple data, like name, address, and birthday, more data can be gathered to create an increasingly rich data shadow of the victim-to-be. Next, the data can be used in different ways. Transactions can be made and booked on a victim’s existing account (account takeover), which is what typically happens with stolen or illegally bought credit card numbers; this perhaps constitutes the most prevalent – and trivial – form of financial identity theft. However, data can also be used in further-reaching ways: opening a new bank account, applying for a credit card, or taking a cell-phone subscription in the name of the victim (truename fraud). The criminal activity in the latter case is usually of longer duration, being noted only when the account holder turns out defective in paying up, and this 33 Garfinkel,

S. (1999). Database Nation. The death of privacy in the 21st century, Cambridge, O’Reilly, 1999; Solove, D.J. (2004). The digital person: technology and privacy in the information age, New York, NY, New York University Press. 34 For a comprehensive overview: Koops, B.J., R. Leenes, M. Meints, N. Van der Meulen & D.-O. Jaquet-Chiffelle (2009). ‘A typology of Identity-Related Crime: Conceptual, Technical, and Legal Issues’, Information Communication & Society, 12, pp. 1–24. 35 Paget, Francois (2008). ‘You have to pay for quality’, McAfee Avert Labs Blog, 7. Available at: http://www.avertlabs.com/research/blog/index.php/2008/05/07/you-have-to-pay-for-quality/.

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often results in the victim being blacklisted as a fraud or freeloader. The effects for victims of true-name fraud are consequently much graver than in the case of account takeover. In this chapter, we focus on Internet-facilitated identity theft. To be sure, identity theft can and does take place off-line. The Internet, however, has various multiplying effects that greatly exacerbate the problem of identity theft and that call for a global approach. Most obviously, the Internet as a global network allows people to communicate and transact at a distance: in most cases, physical presence is no longer needed. A perpetrator can operate from Krasnoyarsk or Antigua as easily as from Edinburgh or Seattle, and what is more, he can pick and choose from all over the world those places with the weakest security and richest accounts. Second, attacks need not be committed in person, consuming scarce human resources, but they can be automated. Social engineering becomes much easier if, instead of having to phone people, a phishing attempt (“Hi, this is Paypal. Could you please confirm your account number and access code?”), can be sent via email to millions of people with a single click. Botnets – networks of “zombie” computers infected by a computer virus that allows the botnet owner to remotely control the computer – are created by spreading a single virus. The most effective botnets span many millions of computers, allowing data (like credit card numbers or e-banking access codes when they are keyed in) from infected computers to be sneakily transported to the botnet controller, or to launch large-scale phishing attacks that are difficult to trace back to the botnet controller. Third, many of these activities are invisible for the average person, and untraceable except for experienced forensic computer experts. The Internet provides a low-risk environment for perpetrators: they cannot be seen and recognized by witnesses, and if they are caught in the act the police have at best an IP address and some digital evidence but not the perpetrator in person. Between the IP address and actual arrest lie cumbersome procedures for connecting the IP address to a real-life person and for legal mutual assistance between states. Fourth, technological turbulence plays into the hands of perpetrators. Information and communication technologies evolve continuously, with more sophisticated applications, version updates, and new protocols emerging on a daily basis. Combined with the complexity and open-endedness of the Internet – which have been built-in intentionally in its design to ensure robustness and flexibility – this turbulence implies that new security vulnerabilities arise continuously, which are studied and exploited across the world by a large community of hackers. Remedies like security patches and anti-virus software updates follow soon after new vulnerabilities are discovered, but it takes a long while before these are implemented by all Internet users. Identity thieves can therefore always profit from significant gaps in Internet users’ security to harvest personal data. As a result of all these characteristics, Internet-facilitated identity theft has the potential to occur on a large and global scale. It should therefore come as no surprise that identity theft seems currently to be at the (steep) incline of the curve of a new crime, “reflect[ing] a pattern in which new forms of crime increase dramatically

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over a short period as knowledge of the techniques spreads and then level off as public awareness increases and countermeasures are developed.”36 Since this pattern is found in many countries and Internet-facilitated identitytheft is an eminently cross-border problem, it constitutes a transnational, indeed global, problem that requires a transnational approach to combat. In the next section, we will describe how far such an approach is currently being undertaken.

7.3 Multi-Level Governance and the Policy Arena 7.3.1 Multi-Level Governance When canvassing the approaches taken to combat Internet-facilitated identity theft, it may be useful to apply the notion of “multi-level governance.” This term, coined by Marks, Hooghe and Blank, indicates “a polity creating process in which authority and policy-making influences are shared across multiple levels of government – sub national, national, and supranational.”37 The activities of governments to combat identity theft fit this picture well: at all levels, initiatives are taken, in a mutually influencing process, which we will describe in this chapter. We should point out, however, that the sum of these initiatives is far removed from creating a “polity,” like the European Union. The governance of identity theft, rather than taking place in a general-purpose governance arena, appears to take place within the second type of multi-level governance that Hooghe and Marks distinguish: a task-specific collection of jurisdictions operating at numerous territorial scales, where jurisdictions are intended to be flexible rather than durable.38 The fight against Internet-facilitated identity theft is a key challenge for Internet governance, which is an example of this “type-II” multi-level governance. It should also be realized that Internet governance is not restricted to governments, on the contrary. A complex network of institutions, in which both public and private organizations as well as individuals participate, organically regulates the Internet.39 Depending on the type of issue to be regulated and the particular pressures and interests involved, different institutions take the lead, and policy decisions are made at varying centers. In that respect, we could speak of

36 UN-CCPCJ

(UN Commission on Crime Prevention and Criminal Justice). Identity-related crime (UN Economic and Social Council), 31 January, p. 15. Available at: http://www.unodc.org/ documents/organized-crime/E_CN_15_2007_8_Add_3.pdf. 37 Marks, G., Hooghe L. & Blank. K. (1996). ‘European Integration from the 1980s: State-Centric v. Multi-Level Governance’ Journal of Common Market Studies, 34, 342. 38 Hooghe, L. & Marks, G. (2003). ‘Unraveling the Central State, but How? Types of Multi-level Governance’, American Political Science Review, 97, 237. 39 Goldsmith, J.L. & Wu. T. (2006). Who Controls the Internet? Illusions of a borderless world, New York, NY, Oxford University Press; Murray, A.D. (2006). The Regulation of Cyberspace: Control in the Online Environment, Milton Park, Abingdon/New York, NY, Routledge-Cavendish.

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polycentric governance rather than of multi-level governance: a complex network of decision-making processes by a wide range of public and private institutions at the subnational, national, supranational, and global level.40

7.3.2 The Policy Arena Before actually describing the different policies introduced and discussed at various levels of governance, it is valuable to provide a sketch of the actors engaged in the policy arena. This is valuable for clarity purposes, but also to understand the underlying motivation of particular actions taken by particular actors. At the global level, a growing number of actors concern themselves with the issue of identity theft. These include the United Nations’ Office on Drugs and Crime, which introduced: “a consultative platform on identity-related crime with the aim to bring together senior public sector representatives, business leaders, international and regional organizations and other stakeholders to pool experience, develop strategies, facilitate further research and agree on practical action against identity-related crime.”41 Along with the consultative platform introduced by the UNODC, the UN Economic and Social Council, in its Resolution 2004/26,42 also created an Intergovernmental Expert Group with the purpose of becoming more familiar with the crime and its many facets. Next to the UN actors, the OECD Committee on Consumer Policy also concerns itself with identity theft. Its efforts reflect similarities with regard to the UN consultative platform and intergovernmental expert group, in particular, the advisory and inventory nature of their work. From a global perspective, the actors involved are generally groups comprised of various experts around the world. Their initial function or assignment is primarily to develop an inventory of the problem, its consequences and the possibilities of intervention at both the global and the national level. At the supranational level, the actors involved fall within a similar category. Within the European Union, the European Commission strengthened the role and reorganized the functioning of the EU Fraud Prevention Expert Group (FPEG) as part of its 2004–2007 Action Plan to prevent fraud on non-cash means of payment. The FPEG identifies all major stakeholders in payment fraud prevention in the EU, including representatives of national and EU banks, ministries, law enforcement agencies, retailers, consumer groups, and network operators. The FPEG “provides an added value as a platform where stakeholders could effectively exchange

40 Hooghe,

L. & Marks. G. (2003). ‘Unraveling the Central State, but How? Types of Multi-Level Governance’, 97 American Political Science Review, 97, 238; Scholte, J.A. (2008). ‘Reconstructing Contemporary Democracy’ (2008). Indiana Journal of Global Legal Studies, 15, 305–350. 41 UNODC (2008). UNODC and organized crime. Available at: http://www.unodc.org/unodc/ en/organized-crime/index.html. 42 E/2004/INF/2/Add.2, p. 74 et seq.

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information and best practice to prevent fraud.”43 FPEG members represent seven subgroups. The primary objective of one subgroup is to provide recommendations and propose countermeasures to effectively prevent, detect, and react to attempts of identity theft and phishing.44 Important to bear in mind as a result of this inventory of actors at the global and supranational levels is how they are primarily groups comprised of experts with the task of serving as a consultative platform. Hence most of their work is in need of cooperation from Member States in order to be implemented and to be effective in any way. At the national level, actors are radically different. Individual governments and government agencies have the authority to introduce and subsequently implement their policies. Identity theft is a particularly complex policy arena, and depending on which agency or which department concerns itself with the problem, the direction of the fight may be quite different. As Edgar A. Whitley and Ian R. Hosein recognize, “[t]he choice of government department that designs the policy on this issue directly influences the kinds of approaches and other policy agendas enrolled in the solution.” As a result, “it is not immediately obvious which branch of government should be responsible for implementing measures for combating the problem.”45 In the United States, the primary actors with regard to identity theft are the Federal Trade Commission along with the United States Congress, which has introduced and continues to introduce a number of countermeasures. In addition, there are actors similar to those at the global and supranational levels. A major example is the President’s Task Force on Identity Theft, which aims “to craft a strategic plan aiming to make the federal government’s efforts more effective and efficient in the areas of identity theft awareness, prevention, detection, and prosecution.”46 The Task Force demonstrates a striking resemblance to the consultative platforms previously discussed. In other countries, various government departments appear to be involved in the problem. In the Netherlands, for example, the Ministry of Justice takes the lead but the Ministry of the Interior and Kingdom Relations is also involved. On the private-sector side, banks demonstrate some interest in the problem. In the United Kingdom, the Home Office created the Identity Fraud Steering Committee (IFSC) and the Identity Fraud Forum (IFF) in 2003, which developed a framework to identify effective measures to prevent and react to subsequent occurrences of identity fraud. The Home Office, however, also set up an Identity Fraud Reduction 43 European Commission (2004). A New EU Action Plan 2004–2007 to Prevent Fraud on Non-cash

Means of Payment, Brussels, 20 October (COM 679 final). p. 4. (Fraud Prevention Expert Group) (2006). Draft Minutes of the 10th Meeting of the Fraud Prevention Expert Group, Brussels, 22 May, p. 6. 45 Whitley, Edgar A. & Hosein. Ian R. (2008). ‘Departmental Influences on Policy Design: How the U.K. is Confusing Identity Fraud with Other Policy Agendas’, Communications of the ACM, 51, 98. 46 President’s Task Force on Identity Theft (2006). Executive Order 13402; Strengthening Federal Efforts to Protect against Identity Theft. Available at: http://www.idtheft.gov/about.html. 44 FPEG

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Team, part of the Identity and Passport Service, which aims to develop a greater understanding of the problem and to do something practical about it. The actors active in the policy arena can as a result be roughly divided in two categories: the direct actors, which predominantly include national governments and government agencies, and the indirect actors, which include the consultative platforms introduced at various levels of governance. This categorization is important to consider especially throughout the discussion of efforts introduced and discussed in the following sections, because the power of indirect actors is effectively limited due to their advisory and coordinative role. Their role in the fight against identity theft, however, if used appropriately, is certainly crucial, because their accumulation of knowledge and insights with regard to the problem can provide direct actors with the necessary background to act in a more effective manner.

7.4 An Action Plan for Protecting and Empowering Victims The previous section described a plethora of actors at all policy levels launching all kinds of activities aimed at fighting identity theft. In this section, we try and put together these activities into a more or less comprehensive action plan, which lists the most important actions needed to protect and empower victims of identity theft. We have categorized the actions into four areas: prevention, criminal justice, and civil justice, as well as evidence-based justice, to stress the need for research and empirical data to inform sound policy-making in the first three areas.

7.4.1 Prevention Many initiatives proposed to combat Internet-related identity theft focus on prevention. This makes sense, since – as we will see in the following sections – repression of these crimes faces enormous challenges in light of globalization and the complex character of the Internet. Perhaps more than for many other types of crime, therefore, it is crucial to bear in mind that prevention is better than cure. Having that said, it must be recognized that prevention of cybercrimes is no sinecure either. Roughly, preventative actions fall into two categories: enhancing security and raising awareness. Particularly the first is enormously challenging. Cyber security is a growing concern and features on many policy agendas; many countries have created governmental Computer Emergency Response Teams (CERTs), and the European Union has established a separate agency, the European Network and Information Security Agency (ENISA). However, the Internet is inherently insecure, through its historical development as an open network that is robust enough to function even if significant network nodes drop out, and consisting of a basic backbone structure on which service providers and end users can build applications and transport any kind of content. Threats to Internet security can perhaps

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be contained, but never eliminated, and it requires constant alertness and effort to keep up with newly discovered security weaknesses.47 As a result of the Internet’s inherent insecurity, enhancing security can hardly be effectuated at an infrastructural level, but should rather be attempted through a sectoral and application-based approach. Here, the measure most consistently proposed to combat identity theft is to introduce or enhance secure identification methods. Secure Identification Management Systems (IMS) would make it more difficult for perpetrators to use other people’s identities:48 “User authentication has long been recognized as a vital strategy in combating cyber threats (identity theft, phishing and other forms of online fraud). Strong authentication is a key component for building confidence and security in the information society.”49 Thus, identity management has become one of the most booming businesses of the past years. Much research is being done, for example, in European projects like PRIME50 and FIDIS;51 many technologies and applications are being developed;52 and numerous organizational measures are proposed or taken. Sometimes, these measures are backed up by legislation. Particularly in the United States, where the market seems to have lagged behind in taking security measures, laws have been passed to ensure security measures. The Gramm-Leach-Bliley Act of 199953 mandates the protection of consumers’ personal financial information by financial institutions, and the Fair and Accurate Credit Transactions Act of 200354 provides several organizational measures to fight identity theft, such as compulsory truncation of credit card numbers on receipts, compulsory investigation by card issuers of change of address and new card requests, fraud alert requirements by credit reporting agencies, mandatory blocking of identity theft-related information on credit reports, and free annual credit reports.55 These types of measures seem particularly relevant in a country like the US, where credit cards are very easy to get and

47 Schneier,

B. (2000). Secrets and Lies: Digital security in a networked world, New York, NY, Wiley, 48 UN-CCPCJ (UN Commission on Crime Prevention and Criminal Justice) (2007). Results of the second meeting of the Intergovernmental Expert Group to Prepare a Study on Fraud and the Criminal Misuse and Falsification of Identity, including Addenda UN Economic and Social Council, 2 April. 49 ITU (2008). Appropriate Organization Structures. Available at: http://www.itu.int/osg/csd/ cybersecurity/gca/overview/structures.html. 50 http://www.prime-project.eu. 51 http://www.fidis.net. 52 For an overview see: Bauer, M., Meints M. & Hansen. M. (2005). D3.1: Structured Overview on Prototypes and Concepts of Identity Management Systems, Frankfurt, FIDIS. Available at: http:// www.fidis.net/; FIDIS (2009). IMS database. Available at: http://www.fidis.net/interactive/ ims-db/. 53 15 USC §§ 6801 et seq. 54 Public Law 108–159. 55 Linnhoff, S. & Langenderfer. J. (2005). ‘The Emergence of Biometrics and Its Effect on Consumers’, Journal of Consumer Affairs, 39, 314–338.

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where credit reports are vital for people’s long-term financial abilities. In other countries, most notably in the EU, such mandatory information-security measures have not been taken specifically to combat identity theft, but have been in place already for a longer period through generic data-protection laws.56 Nevertheless, specific measures like the mandatory truncation of credit card numbers may be a valuable measure in other countries as well.57 In Europe, measures like those imposed in the US by legislation are often taken by the financial sector itself or by public-private partnerships.58 Financial institutions are acutely aware of the threat of identity theft, also in view of the reliability of the entire financial system, and hence they take the lead in enhanced technical and organizational security measures. For example, innovative technical measures are developed like virtual dynamic cards in France (which generates a one-off credit card number per transaction), or a homebanking computer interface with enhanced Transaction Authentication Numbers (eTAN and TANplus, in Germany). Some potential solutions, however, like the 3D secure system, are opposed in France by merchants and banks for economic reasons, suggesting that market failure – one of the reasons for the US to impose legal obligations – may not altogether be absent in countries with longer-standing private-sector information-security practices. The prevalence of account takeover and particularly of true-name fraud thus depends to a large extent on the authentication procedures of service providers: the stronger their authentication, the more difficult it is to acquire the service in someone else’s name. However, there is another side of the coin, which is insufficiently recognized in policy documents. The stronger the authentication process, the more difficult it is for the fewer victims to prove that they actually are victims of true-name fraud and should be removed from blacklists. Strong authentication means fewer victims, but also greater consequences for those who do fall victim to identity theft. To be sure, reality is yet far removed from bleak scenarios offered by mass-media films about identity theft, like The Net, in which perpetrators completely take over the identity of their victim, who consequently no longer has a life of her own;59 yet the implicit warning in such stories that the impact of identity-theft victimization is many times larger as security systems are supposed to be watertight, is one we should take to heart. The second prong of the preventative approach is to raise awareness, particularly with potential victims. “Prevention by making the citizens aware about the risk of

56 See

in particular: Article 17 Directive 95/46/EC, OJ 1995 No. L281/31. der Meulen, N. & Koops. B.-J. (eds.) (2008). D12.7: Identity-Related Crime in Europe – Big Problem or Big Hype? Frankfurt, FIDIS, pp. 83–83. Available at: http://www.fidis.net. 58 See extensively: Van der Meulen, N. & Koops. B.-J. (eds.) (2008). D12.7: Identity-Related Crime in Europe – Big Problem or Big Hype? Frankfurt, FIDIS. Available at: http://www.fidis.net. 59 Pintér, R. (ed.) (2007). D5.2c: Identity Related Crime in the World of Films, Frankfurt, FIDIS; Available at: http://www.fidis.net. 57 Van

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being a victim of identity fraud & theft is a very powerful tool.”60 Awareness raising features prominently in all policy documents, for example, in the ECOSOC study: The dissemination of information about fraud and identity-related crime to potential victims: such information could include both general information to raise awareness of the threat and timely information about specific forms of fraud and identity-related crime based on accurate and up-to-date monitoring of criminal activities by appropriate entities in both the public and private sectors. Information campaigns could be directed at the general population and at specific groups considered to be particularly vulnerable or at increased risk of being targeted.61

Such campaigns are regularly undertaken in practice; in France, for example, the federation of banks sponsored a campaign with brochures, comics, and books on safe Internet use, and the public-private partnership Forum of Internet Rights published on-line factsheets and guidelines for e-shopping, including advice to prevent phishing.62 In other countries, awareness also plays an important role in the overall fight against identity theft. In the United Kingdom, for example, the Information Commissioner’s Office has developed an information toolkit, which provides extensive information on a number of identity theft-related aspects, creatively bringing home the message by associating every piece of advice with a different kind of tool, like a screwdriver or a hammer. Creativity could be an effective way to help consumers actually follow up the advice given in consumer awareness campaigns. One initiative, a cooperative effort in Australia of the Bankers’ Association, the High Tech Crime Centre, and the Securities & Investments Commission, takes the consumer awareness campaign one step further: they also make consumers aware of the dangers of serving as money mules. Since the introduction of a mule is often necessary for perpetrators to obtain the financial assets without getting caught, consumer awareness of this threat is particularly crucial with regard to preventing perpetrators from making their operation a success. Whereas enhancing security and raising awareness are by far the most important preventative measures, also deterrence may be mentioned as an additional part of the action plan. As the ECOSOC study rightly notices, deterrence is not proven effective for many offences, but for fraudulent crimes, which are by nature pre-planned and usually involve some cost-benefit analysis on the part of perpetrators, there may be a deterrent effect on would-be identity thieves in legal measures of criminalization

60 Tomar Conference (2007). Conclusions and Recommendations, Tomar conference, 7–9 November. Available at: http://www.idfraudconference-pt2007.org/cms/files/conteudos/image/ IdFraudconference%20Tomar-%20general%20conclusions.pdf. 61 UN-CCPCJ (UN Commission on Crime Prevention and Criminal Justice) (2007). Results of the second meeting of the Intergovernmental Expert Group to Prepare a Study on Fraud and the Criminal Misuse and Falsification of Identity, Including Addenda, UN Economic and Social Council, 2 April, p. 17. 62 Van der Meulen, N. & B.-J. Koops (eds.) (2008). D12.7: Identity-related Crime in Europe – Big Problem or Big Hype? Frankfurt, FIDIS, pp. 43–44. Available at: http://www.fidis.net.

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and in confiscation legislation and procedures.63 This potentially preventative effect should be borne in mind, while we now move on to surveying measures in the area of criminal justice.

7.4.2 Criminal Justice The realm of criminal justice is generally a primary source of focus for policy actors. Adequate substantive and procedural criminal law must be in place for identity theft to be combated. One of the prime areas of debate is whether or not identity theft should be criminalized as a separate offense. Many countries seemed to consider traditional criminal provisions, like fraud, forgery, theft and impersonation, sufficient to penalize identity theft, but the current trend seems to be towards creating a specific offense. The United States was the first to introduce criminal legislation. In 1996, the State of Arizona became the first government to pass a law which made identity theft a felony and punishable with a prison sentence of up to one and a half year in addition to restitution and a fine of up to $150,000.64 California followed Arizona’s lead, and soon afterwards the federal government passed the Federal Identity Theft and Assumption Deterrence Act of 1998. This identified identity theft as a federal crime, provided a legal definition, and outlined penalties for any violation of the Act. To many the Act represented an important first step with regard to the fight against identity theft. Matejkovic and Lahey claim the Act accomplished a number of significant tasks, not the least to identify individuals as the primary victims as opposed to financial institutions, and to federalize the crime, which gave victims the opportunity to request aid from law-enforcement officials.65 More recently, in 2007, Canada proposed Bill C-27,66 which would create new offenses, criminalizing the first stage of identity theft as obtaining or possessing identity information with intent to use it to commit a crime (identity theft), as well as the deceptive use of such information (identity fraud). In Australia, the State of South Australia also proposed legislation to specifically target identity theft.67 The United Kingdom has adjusted its laws in light of the advancements in digital technology, through the Fraud Act 2006, which criminalizes many aspects of identity

63 UN-CCPCJ

(UN Commission on Crime Prevention and Criminal Justice) (2007). Results of the second meeting of the Intergovernmental Expert Group to Prepare a Study on Fraud and the Criminal Misuse and Falsification of Identity, including Addenda, UN Economic and Social Council, 2 April, p. 18. 64 Arizona Criminal Code Revised Statute § 13–2008, 1996. 65 Matejkovic, J.E. & Karen Eilers Lahey (2001). ‘Identity Theft: No Help for Consumers’, Financial Services Review, 10, 221–235. 66 http://www.parl.gc.ca. 67 NHS Counter Fraud and Security Management Service, The International Fraud and Corruption Report (2006). p. 17. Available at: http://www.nhsbsa.nhs.uk/CounterFraud/Documents/ International_fraud_and_corruption_report.pdf.

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theft and identity fraud. Although it does not specifically penalize identity theft as a separate crime, it has become easier to prosecute identity thieves who “phish” (i.e. digitally angle) for financial information: “[t]here is no requirement for the phisher to be shown to have used the information to access the funds in the victim’s account. The victim needs not respond to the email or act on the request.”68 In other countries, discussions about possible criminalization are still going on. The supranational and global levels demonstrate similar discussions about the need for and the usefulness of criminalization. Criminalization has been mentioned as a potential countermeasure among EU officials. The Communication from the Commission titled Towards a general policy on the fight against cyber crime notes that “[i]t is often easier to prove the crime of identity theft than that of fraud, so that EU law enforcement cooperation would be better served were identity theft criminalized in all Member States.”69 Consequently, a consultation is currently undertaken to prepare a proposal for specific EU legislation against identity theft. Similarly, the ECOSOC-initiated expert group on identity-related crime concluded that “some specific criminalization is beneficial.”70 Particularly interesting is the account of this meeting’s conclusions given in the Conference of the Parties to the UN Convention against Transnational Organized Crime:71 Criminalizing specific abuses of identity-related information might be more effective in relation to crimes committed with the use of technologies and the involvement of organized criminal groups since different stages of those kinds of offences [are] often carried out by offenders located in different jurisdictions; if specific identity-related offences were in place in every location where an offender was operating, each offender could be prosecuted in the jurisdiction where he or she had committed a crime. Criminalizing an activity for being preparation for another crime requires proof of that other crime, which may not exist or may only be available in another State. Thus, the existence of specific offences increases the likelihood that investigations and prosecutions will be successful and may alleviate some of the demands placed on overstretched international cooperation frameworks.

Altogether, the debate seems to tend, slowly but unmistakably, towards specifically criminalizing identity theft, in particular to be able to intervene already in the first stage of data collection. This is not caused so much by the fear that existing provisions would not cover all forms of identity theft, although that certainly plays a role. Rather, it is the feasibility of prosecuting identity thieves in a global, online world that is stressed in the discussions. Also, from a victimological perspective, criminalization is an essential aspect of any action plan to combat identity theft, as it provides victims with the ability to be recognized by the law enforcement community and as such to receive the necessary assistance on their path to recovery.

68 Savirimuthu,

A. & Savirimuthu, J. (2007). ‘Identity Theft and Systems Theory: The Fraud Act 2006 in Perspective’, SCRIPT-ed, 4, pp. 440. 69 COM (2007) 267final. 70 Core Group of Experts (2008). Second meeting of the Core Group of Experts on IdentityRelated Crime, Vienna, 2–3 June, p. 5. Available at: http://www.unodc.org/documents/organizedcrime/Final_Report_ID_C.pdf. 71 CTOC/COP/2008/4: 5.

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The second, and at least equally important, prong of criminal justice is adequate means to investigate and prosecute identity theft. This encompasses several aspects. States should have adequate powers to investigate identity theft. Particularly for online identity theft, this requires powers to search computers and computer networks, to intercept communications, and to request identifying and traffic data from service providers. Most countries have updated their procedural criminal law over the past decade to meet the new challenges for criminal investigation posed by the Internet. Moreover, the Council of Europe’s Cybercrime Convention (CETS 185) contains a comprehensive set of investigation powers that meet the demands of the Internet era. This convention is open for ratification by any country; besides 25 European countries, the United States has already ratified it, and countries like Japan, the Philippines, and Costa Rica have expressed interest in acceding to the Convention.72 Consequently, countries which have not yet updated their investigation powers should consider ratifying the Convention, or at least to use it as a model for legislation. The Cybercrime Convention has other advantages as well. Notably, it includes a substantial section on international cooperation. These provisions aim at facilitating expeditious mutual legal assistance, which is particularly important in a networked world where information can vanish or be transferred across the world in a couple of seconds. Through a 24/7 network of national contact points, states are able to immediately address the right authorities to request assistance, and special provisions for expedited preservation of stored computer data and expedited disclosure of telecommunications traffic data allow states to make sure that vital information about suspects’ online behavior can be preserved without time-consuming red tape. The preserved data can then later be transferred to the requesting party, after a proper legal basis for the mutual legal assistance has been established. Nevertheless, the Cybercrime Convention also has a few gaps. With organized identity theft, it is likely that victims are spread across several countries, and hence, it can be unclear which country wants or should have priority to prosecute. The Convention in that case merely states that countries “should consult with a view to determining the most appropriate jurisdiction for prosecution.”73 This provides little guidance. Susan Brenner has proposed a list of factors that countries could take into account when prioritizing prosecution; particularly relevant among these are which country has custody of the suspect, which country suffered most harm, nationality of the suspect and of the victims, and which country is most likely to have a successful case, for example, in light of available evidence and witnesses.74 Another gap in the Convention is that no significant consensus could be reached on introducing a cross-border network search; the Convention only allows countries to search online

72 See

the chart of signatures and ratifications at: http://conventions.coe.int. 22(5) Cybercrime Convention. 74 Brenner, S. (2006). ‘The Next Step: Prioritizing Jurisdiction’, in Koops, B.-J. & Brenner. S.W. (eds.). Cybercrime and Jurisdiction. A Global Survey, The Hague, TMC Asser Press, 2006, pp. 327–349. 73 Article

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in other territories for publicly available data or with consent from the right-holder to the data.75 These exceptions do not often apply, and hence, when investigating officers are conducting a search on their territory of a computer, they can usually not search all computers to which this computer is regularly connected, for example, to retrieve remotely stored data. Instead, they will have to take recourse to mutual legal assistance, and even if this has become easier with the 24/7 network, it still takes time in which data could easily be destroyed if the perpetrators are aware of the computer search. Together with the fact that the Cybercrime Convention, even if it seems one of the “fastest” conventions in history, has been ratified so far by a relatively small number of countries (30 by July 2010), international cooperation in the fight against Internet-related identity theft is likely to remain something of a hurdle. This makes it very welcome that cooperation and approximation of laws and procedures are being discussed at the global and supranational levels. Besides investigation powers and international cooperation, a third and crucial element is to have sufficient and capable law-enforcement agencies that can investigate and prosecute identity thieves. Internet-related identity theft, like most forms of cybercrime, requires special knowledge and expertise. Therefore, “[s]tates should ensure that law enforcement and other relevant agencies are trained in the investigation of cybercrime.”76 Specialization and establishing special agencies are also needed, as the subgroup on identity theft of the European FPEG stated: “the creation of dedicated specialized units with operational responsibilities (. . .), if created in all EU Member States, would provide a significant added value in the fight against identity theft/fraud.”77 Other benefits associated with dedicated specialized units include the ability to enhance cross-border policing and judicial cooperation by creating central points of contact. As the FPEG rightfully notes, “[i]t is essential to be able to conduct rapid end-to-end investigations (thus covering the whole chain) in an international context. This is the only means to stop the criminal money flows.”78 To what extent these units exist or are currently being initiated within the EU Member States, however, is unclear.

7.4.3 Civil Justice In addition to criminal justice, individual victims also demonstrate the need for means of civil justice. An important aspect of civil justice is the ability to report

75 Article

32 Cybercrime Convention. (UN Commission on Crime Prevention and Criminal Justice) (2007). Results of the second meeting of the Intergovernmental Expert Group to Prepare a Study on Fraud and the Criminal Misuse and Falsification of Identity, including Addenda UN Economic and Social Council, 2 April, p. 9. 77 FPEG (Fraud Prevention Expert Group) (2007). Report on Identity Theft/ Fraud, Brussels, 22 October, p. 35–36. Available at: http://ec.europa.eu/internal_market/fpeg/docs/id-theftreport_en.pdf. 78 FPEG (Fraud Prevention Expert Group) (2007). Report on Identity Theft/ Fraud, Brussels, 22 October, p. 36. Available at: http://ec.europa.eu/internal_market/fpeg/docs/id-theft-report_en.pdf. 76 UN-CCPCJ

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the incident of identity theft to the correct authority. Adequate mechanisms for victim complaints serve a number of purposes. First of all, the collection of reports helps with the indication of the prevalence of identity theft in society. Secondly, with regard to the victims, they have a central point of information which can provide them with the necessary guidance to take subsequent steps to regain their lives. Effective complaint centers can guide victims on their path to recovery, which is essential because many times victims of identity theft find themselves in a state of helplessness. Unaware of where to go and whom to speak to, these victims run around in circles without making the necessary progress to eliminate the negative impact of the incident on their lives. In the United States, the Federal Trade Commission has maintained such a complaint center now for the past 9 years. In other countries and at other levels of governance, complaint centers appear to be a topic of discussion rather than a reality. An exception is the Netherlands, where a complaint center has recently been introduced. In the United Kingdom, on the other hand, victims often turn to CIFAS, which collects consumer complaints and also appears to be in a good position to assist victims of identity theft. A relatively recent trend with regard to civil justice is to introduce data security breach legislation. Such legislation started, like many other initiatives, at the state level in the United States. In 2003, California introduced two significant data security breach laws, which require private corporations to notify consumers in case of a data security breach. First, the California Security Breach Information Act79 (California Civil Code § 1798.82) requires any company which stores customer data electronically to notify its California customers of a security breach to the company’s computer system when the company knows or has reason to believe that unencrypted information about customers has been disclosed. The second law, commonly known as the California Financial Information Privacy Act, establishes new limits on the ability of financial institutions to share nonpublic personal information about their customers with affiliates and third parties. This legislation hardly comes as a surprise after hackers gained access to the state government’s payroll database, which contained sensitive personal information of over 250,000 state employees, in 2002, including the members of the California legislature. Benjamin Wright describes the onset for the current laws: “[m]any employees, including the legislators, felt the California government was too slow to notify them about the burglary.”80 Data security breach notification legislation is also an important debate at the federal level in the US, especially after some particularly high-profile cases occurred involving major data security breaches. In the most highly publicized case, Choice Point, a company which obtains and sells personal information to more than 50,000 businesses, including names, Social Security Numbers (SSNs), birth dates, employment information, and credit histories, settled a case after the FTC pressed charges as a result of a significant data security breach in 2005. The data security breach caused at least 800 cases of identity theft and personal financial records

79 California

Civil Code § 1798.82.

80 Wright, B. (2004). ‘Internet Break-ins: New Legal Liability’, Computer Law & Security Report,

20, 171.

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of approximately 163,000 consumers became available for identity thieves to take advantage of. The FTC pressed charges against ChoicePoint claiming it “did not have reasonable procedures to screen prospective subscribers, and turned over consumers’ sensitive personal information to subscribers whose applications raised obvious ‘red flags’.”81 Furthermore, the FTC also claimed ChoicePoint was in violation of FTC provisions because the company made false and misleading statements about the privacy of consumer information. ChoicePoint, ultimately, had to pay a total of $15 million, the largest settlement to date. ChoicePoint, among other cases, has led to a significant number of breach notification acts at the state level. At present, forty-two US states have some form of breach notification law in place, which differs slightly based on applicable parties, type of data “lost” and type of notification required. The differences, however subtle, do cause or could cause confusion among the various organizations, which is a sign that perhaps federal legislation is needed, even if this is somewhat controversial at the moment. Lilia Rode concludes that “[s]ecurity breach notification statutes like California’s ensure that consumers are protected from identity thieves.”82 While perhaps in the long run security breach notification manages to provide sufficient protection, with regard to its short-term results she is incorrect. Security breach notification’s strongest asset is the way in which it forces corporations to provide the highest form of security for the customer’s personal data, so in and of itself breach notification laws do not protect the consumer. Furthermore, notifying consumers that their information has been compromised helps them to become more aware and cautious of potential irregularities, but perpetrators can still commit identity theft with the information they obtained through the data security breach. Consequently, data security breach notification is valuable due to its ability to influence the incentives of corporations to provide better security, but as a countermeasure alone it fails to provide adequate protection for consumers. Nevertheless, governments are increasingly picking up on this countermeasure, which has nearly become a global phenomenon. For example, in the European Union, the Directive on privacy and electronic communications has been amended to include a data breach notification requirement.83 The European Data Protection Supervisor (EDPS) particularly welcomes this amendment. The strong support for a breach notification provision is quite similar to the arguments offered by advocates in the United States. According to the EDPS,84 “notification has clear benefits, it reinforces the accountability of organizations, is a factor that drives companies 81 FTC

(2006): 1. L. (2007). ‘Database Security Breach Notification Statutes: Does Placing the Responsibility on the True Victim Increase Data Security?’, Houston Law Review, 43, 1597–1634. 83 Directive 2009/136/EC, amending 2001/58/EC. The requirement only applies to electronic communications service providers. 84 EDPS (European Data Protection Supervisor) (2008). ‘EDPS Opinion on ePrivacy Directive review: overall positive, but further improvements should be considered’, Press Release. Available at: http://www.edps.europa.eu/EDPSWEB/webdav/shared/Documents/EDPS/ PressNews/Press/2008/EDPS-2008–03EN_ePrivacy.pdf. 82 Rode,

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to implement stringent security measures and it permits the identification of the most reliable technologies towards protecting information. Furthermore, it allows the affected individuals the opportunity to take steps to protect themselves from identify theft or other misuse of their personal information.” Moreover, the obligation should also apply “to other actors, especially to providers of information society services which process sensitive personal data (e.g. online banks and insurers, on-line [sic] providers on health services, etc.).”85 A comprehensive notification requirement has also been strongly recommended in a report commissioned by the EU information security agency ENISA.86 Whether the legislation will actually be effective in practice to prevent identity theft remains a question which only time can answer. It is widely believed, however, that it is a valuable measure against identity-related crime. Another important issue within the area of civil justice is the resolution of liability. In the United States, as in many other countries, the financial service providers generally cover the costs for lost financial assets of existing accounts. True-name fraud victims, however, do encounter a greater challenge when they try to show the financial service provider was negligent in its behavior and should be held liable. In Huggins v. Citibank, for example, the plaintiff, a victim of identity theft, pressed charges against three banks, claiming they were liable for “negligent enablement of imposter fraud” because the banks failed to carefully scrutinize the personal information provided on the credit application. The South Carolina Supreme Court dismissed the plaintiff’s claim because it did not consider a duty of care to exist from the defendant towards the plaintiff, a non-customer. In order for the duty of care to exist, according to the Court, a legal relationship must exist between the plaintiff and the defendant, which was not the case here. The Court ultimately explained how [w]e are greatly concerned about the rampant growth of identity theft and financial fraud in this country. Moreover, we are certain that some identity theft could be prevented if credit card issuers carefully scrutinized credit card applications. Nevertheless, we agree with the New York appellate court decision in Polzer v. TRW, Inc., (. . .) and decline to recognize a legal duty of care between credit card issuers and those individuals whose identities may be stolen.87

This is clearly a problem, because if the financial service provider is not burdened with a duty of care and liability, then the victim carries the burden of both resolving the case and the financial consequences. Closely associated with this is another major problem which is largely left unresolved. This is the continuing problem with negative credit records which leads most victims to have future problems in various aspects of their lives, including obtaining 85 EDPS

(European Data Protection Supervisor) (2008). ‘EDPS Opinion on ePrivacy Directive review: overall positive, but further improvements should be considered’, Press Release, p. 3. Available at: http://www.edps.europa.eu/EDPSWEB/webdav/shared/Documents/ EDPS/PressNews/Press/2008/EDPS-2008–03EN_ePrivacy.pdf. 86 Anderson, Ross, Rainer Böhme, Richard Clayton & Tyler Moore, Security Economics and the Internal Market, ENISA, January, p. 3. Available at: http://www.enisa.europa.eu/doc/ pdf/report_sec_econ_&_int_mark_20080131.pdf. 87 Huggins v. Citibank, N.A., et al., 355 S.C. 329, 2003.

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loans, mortgages, phone contracts, and employment. The CRAs often keep putting the information back on the victims’ records, or they refuse to remove it.88 When a negative credit record remains, the effects of the crime essentially continue, preventing the victim from moving on with his life. A serious effort needs to be made to resolve this issue.

7.4.4 Evidence-Based Justice The last type of justice that should be part of a comprehensive action plan is evidence-based justice. This runs as a red thread through the areas of action we have outlined above. Often, lack of empirical data has obscured what exactly is happening with identity theft, and many studies have noted how the lack of data hampers policymaking to effectively combat it. Slowly, however, studies are undertaken that try to map what is happening in real life, which helps to gain essential knowledge and insight about the consequences of identity theft for victims. As noted in Section 7.2.2, the ITRC certainly conducts the most pivotal research with regard to identity theft victimization. Its studies have demonstrated how victims suffer and more importantly perhaps what their short-term and long-term needs are. Indeed, studies have come to demonstrate how victims of identity theft are often just as seriously affected as other victims of crime. As Pontell et al. show, “[t]here are many reasons to believe that fraud victims suffer just as many, if not more negative experiences, than victims of common crime.” The authors recognize the element of deceit which often leads to “self-blaming.” This self-blaming is a result of the indirect participation in one’s own victimization, which can occur with regard to identity theft, and leads to additional psychological damage that certainly outweighs the financial costs.89 Furthermore, victimization studies have also provided information on the inability of victims to prove their victimization. This directly leads into another important issue which is the need to generate knowledge on the “loss” of the victim’s identity. How and where did the perpetrator obtain your personal information? This question is often asked but rarely answered. Studies have tried, but failed. Yet, despite their failure they do attach conclusions to limited and unreliable data. An illustrative example is how a study conducted in 2007 claimed that most cases of identity theft were perpetrated by someone known to the victim. This was a misinterpretation of the study, but the misinterpretation was partly caused by an awkward presentation in the study of the results. As was later clarified by Claudia Bourne Farrell of the FTC: what the Javelin study reported, 26 percent of victims knew the identity thief but did not necessarily personally know the criminal. The interviewer was instructed that if the respondent

88 ITRC

(2007). Identity Theft: The Aftermath 2007. Available at: http://www.idtheftcenter.org. H.N., Brown. G.C., & Anastasia Tosouni (2008). ‘Stolen Identities: A Victim Survey,’ in McNally. Megan M. & Graeme, R. Newman (eds.). Perspectives on Identity Theft. Crime Prevention Studies, 23, Monsey, NY, Criminal Justice Press, 2008, pp. 57–85.

89 Pontell,

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hesitated to respond to the question, ‘Do you know the identity of the person who misused your personal information without your permission?’ the interviewer was to say: ‘This means you can either personally know the thief or just know the identity of the person, such as their name, etc.’90

The resulting false impression that a considerable number of victims of identity theft actually knew the perpetrator – with the oblique suggestion that therefore, they may partly have themselves to blame for having lost their identity? – is an example of secondary victimization that should be prevented on all accounts. Evidence-based justice goes further than researching and mapping incidence of crime and its effects on its victims. Equally important is research on potential causes, notably facilitating factors that are embedded in current financial and identitymanagement infrastructures. In a previous report on identity theft in Europe, we concluded (perhaps somewhat provocatively, we admit): rather than continue to harp on about generally accepted definitions, lack of data, and whether or not to start registering identity-related crime before countermeasures can be taken, a better approach to address the threat of identity-related crime may well be to start conducting more in-depth studies of the strengths and weaknesses of European financial and identification infrastructures in the information society.91

Yet another area in which more research is needed, concerns the effects of countermeasures. It would be welcome to have a geographic or longitudinal comparative analysis of states with and without specific criminalization of identity theft, to know whether criminalization of the first stage of identity theft actually leads to more prosecutions or to fewer crimes. We would also like to know something about the effect of awareness-raising campaigns. Do citizens and consumers actually better protect their data, and/or are they more reluctant to conduct transactions online for fear of identity theft? Perhaps most importantly, are countermeasures aimed at enhancing security actually effective? For example, the widely proposed and introduced measure of biometrics, like fingerprints or iris scans, to enhance security in identity management seems to rely on too optimistic estimates of what this technology is capable of: “the current state of the art of biometric devices leaves much to be desired,” with statements by manufacturers that are not evidence-based giving “a false sense of security, adversely affecting actual security.”92 To conclude, many issues are to be researched, in order to inform a comprehensive action plan against identity theft that provides evidence-based justice. Given the enormous complexity and variety of the field, as will be clear from the examples we mention in this section, future research into identity theft should definitely

90 Farrell,

C. B. (2005). Email correspondence with Robin Sidel released through a Freedom of Information Act, p. 4. Available at: http://www.ehealthinformation.ca/blogs/ftc_ email_on_javelin.pdf. 91 Van der Meulen, N. & Koops, B.J. (eds.) (2008). D12.7: Identity-related Crime in Europe – Big Problem or Big Hype? Frankfurt, FIDIS, p. 9. Available at: http://www.fidis.net. 92 Geradts, Z. & Sommer. P. (2006). D6.1: Forensic Implications of Identity Management, FIDIS, p. 69. Available at: http://www.fidis.net.

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be multidisciplinary, with scholars from such different fields as information security, identity management, financial markets, Internet governance, and victimology cooperating in research studies.

7.5 Problems with Current Policymaking Identity theft, and financial identity theft in particular, is a popular political agenda item. From the United Nations to local governments, identity theft is being discussed, researched and on occasion also “fought.” The fight against identity theft is our primary focus in this chapter, especially due to the need for such a fight to be successful from a victimological point of view. It is safe to say that presently the perpetrators are winning battles, if not the entire fight. They have a number of factors on their side, including efficiency, innovativeness, global scope and speed through the Internet. These perpetrators are fast both in their actions to commit the crime and in their ability to develop new methods to engage in identity theft. Policymakers and all others involved in identity theft are slow and at times uninsightful. The search for a common definition continues, and it is not likely to bring any substantial benefits should ever a perfect definition be found. Many current debates revolve around the question whether identity theft should be criminalized as a separate offense, and although this certainly is a piece of the puzzle, resolving this question will give little insight into the entire picture. Data security breach legislation, another alternative which continues to be received with much enthusiasm, is a band-aid which is often presented rather optimistically as a cure. In theory, data security breach legislation is a promising aspect of the fight against identity theft, especially if it is enforced in practice to increase corporate responsibility and accountability; it then can help to prevent future breaches. Yet there is also a potential for an increase in victimization if the breach and its notification require consumers to carry the burden of counteraction and liability for losses occurring after the notification. This deserves considerable attention as policymakers in the United States and Europe continue to welcome this countermeasure without showing awareness of potential backfiring effects. Likewise, the ongoing quest for reliable prevalence data seems cleverly used as a maneuver to prevent any attempt at answering the more difficult questions. These questions, the difficult ones, are about the ability to create effective and efficient policies to counter identity theft. How can identity theft really be combated? In this chapter, we have analyzed available policies, such as criminalization, data security breach legislation, and consumer awareness campaigns. These present initiatives are a nice try, but far from sufficient. For one thing, current policies rarely provide any assistance to alleviate the hardship placed on victims as a result of identity theft. Moreover, certain policies have the possible effect of shifting liability towards consumers. For them, it is not evident that such legislation ultimately helps to effectively counter identity theft.

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Another problem is the composition and functioning of the policy arena. The arena is teeming with actors, at all levels of government and in many centers of public-private partnerships as well. For several actors in the policy arena, it is unclear what exactly their added value in truly addressing the problem is. The only way all of these expert groups and consultative platforms serve any sort of value with regard to the identity theft problem is when the actors with implementation capacity will actually use their advice and knowledge and act upon it. Yet the very fact that so many groups and platforms are “looking into” the issue seems to prevent action by those in power: when so much is going on and being debated, states and private actors would rather wait to see which direction the debate is leading them. In the meantime, almost all groups are copying the same effort and are as a result taking up valuable time and resources which are not spent on developing actual means of victim assistance and prevention. To be sure, policy needs to be informed and not haphazard, and we ourselves have stressed the need for research and empirical data in order to devise a comprehensive action plan. However, what is happening in the policy arena is not so much effective research and data gathering, as mapping “the” problem and countermeasures in an abstract way, largely by looking at previous research and studies. We question the usefulness of having separate expert groups within the UN, OECD and the EU, besides numerous national platforms and institutions, who all seem to be doing the same thing. Producing so many reports on identity theft, its definition (and the difficulty of reaching consensus on one), prevalence (and the lack of data on this), and criminalization (specific or not) is a serious problem in its own right. A related issue is that current policies and efforts lack the necessary coordination. An effective fight against identity theft requires a coordinated effort by interdependent parties. Any action taken by a consumer, a business or a government agency influences the situation of the other parties. Part of the present problem is the discongruency between the priority levels awarded to identity theft by the various actors. Businesses, including financial service providers, continue to find themselves in a situation where the profits of their current ways outweigh the costs. As a result, it is generally, from a business point of view, uninteresting to devote too many resources to fighting identity theft. Losses are simply calculated away in business cases of financial products and services. From the perspective of victims, this is a major obstacle. The private sector remains a crucial link both in the possible prevention and the countering of identity theft. Without its help, victims must rely entirely on efforts introduced by government agencies, which do not always have the ability to effectively counter the problem and meet the needs of the victims. This seems predominantly the case for the United States; in the European Union, many countries have businesses and financial service providers with more robust systems. Perhaps the largest problem associated with current policies is the inability of actually targeting the vulnerabilities in society which indirectly facilitate identity theft. Many if not most of the current policies in place are targeted at legal measures in the area of criminal law: criminalization, investigation powers, police training, and international judicial cooperation. The stress on criminal law tends to obscure the need for civil remedies which are at least as important for victims, most notably

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in countries where blacklisting occurs and victims have a hard time proving that they are not to be blamed for their bad credit score. More importantly, the restorative measures seem to get greater weight with policymakers than preventative measures, which often stop at noting that information security is important and introducing a token awareness-raising campaign. Compulsory security breach notification is the current buzzword in preventative approaches, and although this seems likely to have some effect on businesses to better protect the data of their customers, it is far from the panacea that it sometimes looks in policy agendas. For example, it does nothing to address the legal market of information broking, which is particularly flourishing in the US. Neither does it do anything against phishing or botnet attacks targeted at massive numbers of potential victims. The inherent insecurity of the Internet is a problem which policymakers seem only too happy to pretend not to see. In short, the focus on criminal-law measures and fragmentary preventative measures introduce band-aids for the problem rather than analyzing in full the symptoms and trying to cure the disease. Much more comprehensive and in-depth attention should be paid to the vulnerabilities in the current globalized and networked information society in which identity management is booming but is yet poorly understood when it comes to vulnerabilities and threats. This is needed not only to prevent as many individuals from falling victim to identity theft, but also to be able to know what has exactly happened when someone does become a victim. Insight into actual vulnerabilities is crucial information to help victims be able to prove their victimization, tell their stories, and thus to get their identity back.

7.6 Conclusion: the Challenge of Identity Theft in Multi-Level Governance For academics, philosophizing about the ideal policy is often a particularly nice and intellectually challenging exercise. Eventually, however, reality rears its head and even academics have to recognize the utopian nature of their action plan. Being realistic usually implies accepting sub-optimal or even mediocre solutions. We appreciate that devising sound policies takes considerable time. Moreover, we are acutely aware that the problem society faces is extremely difficult to address effectively. Internet-facilitated identity theft is a new means to commit a very profitable type of crime with low risk of being detected. It has been snatched up by professional and organized criminals, who have the entire world as their field of operation to look for the weakest links in financial services. As a result, the principal question that traditionally comes up with new crimes – “how to catch a thief” – is perhaps the wrong question to ask in the Internet era. This observation logically raises the issue what question then should be asked. In light of the particular character of identity theft, we think this should be: “how can we most effectively protect individuals from falling victim to identity theft, and how can we help those who have been victimized to recover their identity and their normal life?” Perpetrators benefit from flawed systems. They benefit from those who open doors and forget to close them. As such, perpetrators should be used as an object

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of analysis to develop policies which effectively handicap them. As they become handicapped, they are in a less convenient position to commit identity theft, which subsequently has a positive effect on the rate of victimization. This effort to handicap the perpetrators and help the victims, however, is significantly challenging with regard to multi-level governance and the diverse range of actors involved. What is important to understand and incorporate is that not every level of government should try to do everything and devise a comprehensive action plan itself. Specialization is the key when it comes to introducing counterefforts with regard to identity theft. At the global level, actors are in a position to be aware of the efforts made in various parts of the world. As a result, they should function as a coordinator of information and disseminator of best practices. The actual implementation of the efforts lies at the national and local levels. Where the supranational level is sufficiently equipped with powers to take measures, a supranational approach is preferable. However, identity theft is a complex amalgam of information security, financial markets, criminal justice, distribution of liability, and civil remedies, and these areas are usually governed in different policy arenas. It is therefore crucial to realize that a comprehensive action plan against identity theft should be split up in different problem fields, and each problem field should be allocated to the appropriate policy arena. This requires considerable flexibility and willingness on the part of actors to delegate problems to where they actually belong, which is not always currently visible in the many separate initiatives undertaken. At the same time, it also requires more coordination than is currently noticeable. Given the truly global nature of the problem, the United Nations might seem to be the best candidate for keeping a comprehensive overview of what happens in the different, sectoral policy arenas. That would imply that the current UN initiative, which is largely triggered by the Economic and Social Council and its Commission on Crime Prevention and Criminal Justice, would benefit from more closely joining efforts with other relevant UN actors, notably the International Telecommunication Union and the World Summit on the Information Society (for Internet governance) and the United Nations Commission on International Trade Law (for consumer protection). A concerted effort at the UN level could set the right agenda for the fight against identity theft and disseminate best practices. Whether this is feasible from a policy and institutional perspective, however, remains to be seen. To conclude, we want to stress the importance of including the victim perspective in the activities that should thus be undertaken at the appropriate levels and in the relevant sectors. For victims, the challenge of recovering their identity continues to become more difficult as time passes. They also face potential problems of liability, caused by preventative measures like security breach notification which may have the backfiring side-effect of shifting the burden of proof towards victims to show that they were not to blame for actual losses. How can various parties at different levels of government help the victims of identity theft? Part of helping them is to acknowledge their status as a crime victim and to recognize how they have specific needs which go beyond merely getting their money back. They need help to restore their financial position and reputation,

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and they may need help in finding another job. At the same time, they also need assistance to deal with the psychological aspect of the crime. These types of help are best offered at lower levels of government, which could be local, state, or national depending on the country. While victims of identity theft face similar challenges, with variations in the manner through which countries maintain financial reputations and other aspects affected by the crime, all victims need distinct types of assistance. And this is actually something for which national governments do not have to wait while the international arena continues its ongoing discussions and explorations. All governments can start with victim assistance activities today.

Chapter 8

International (Cyber)Stalking: Impediments to Investigation and Prosecution Suzan van der Aa

8.1 Introduction The history of anti-stalking legislation is an excellent example of globalization in itself. Within no time the legislative “innovation” of the crime of stalking by the State of California was picked up by other states and by other countries all around the world. It took less than 5 years after the first criminalization in 1990 before the other fifty American states and the District of Colombia had followed the Californian precedent. Quickly the trend spread throughout the world and was passed onto several European countries, Canada, Australia, New Zealand and even Japan. Consequently, the conduct has generated more and more academic and legislative attention.1 What has not been paid much attention to is that nowadays – like trends within the legal domain – stalkers and their victims are able to travel across national borders just as easily. While sometimes the geographical distance between stalker and victim forms a natural impediment to the harassment, there have been cases in which the stalking continued despite the separation or – in the case of cyberstalking – where stalker and victim had never even met in the offline world. An example of an international stalking case involved a Dutch female victim who lived near the Belgian border and who was being harassed by her former Belgian boyfriend.2 He kept driving by her house, following her around, sending her e-mails and calling her on the phone. Despite the – according to the victim – abundance of evidence, the Dutch police told her that “nothing could be done,” since the stalking was carried out by a Belgian citizen who, furthermore, partly carried out his deviant behavior from abroad.

S. van der Aa (B) Senior researcher at INTERVICT, Tilburg University, Tilburg, The Netherlands e-mail: [email protected] 1 Groenen,

A. (2006). Stalking. Risicofactoren voor fysiek geweld, Antwerpen, Maklu, p. 16. within the scope of her PhD thesis, Van der Aa, S. (2010). Stalking in the Netherlands, Nature and Prevalence of the Problem and the Effectiveness of Anti-Stalking Measures, Maklu, Antwerp/Belgium. 2 This example is derived from a victim questionnaire that was carried out by the author

191 R. Letschert, J. van Dijk (eds.), The New Faces of Victimhood, Studies in Global C Springer Science+Business Media B.V. 2011 Justice 8, DOI 10.1007/978-90-481-9020-1_8, 

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As appears from the example, the police sometimes shy away from taking action because of the international nature of the case. Where the investigation and prosecution of stalking already poses various problems on the national level, these difficulties are multiplied when an international component comes into play. Inter-jurisdictional difficulties could emerge. Which jurisdiction is responsible for regulating the stalking? And how would the international investigation and prosecution take shape? Naturally, these problems can be witnessed with other crimes that transcend national borders as well. What is unique about stalking, however, is the lack of consensus on a definition and the absence of a criminal provision in many countries. Where crimes such as the distribution of child pornography can count on international support when it comes to the development of international standards, the criminalization of stalking in national legislation alone is already controversial. Many difficulties arise when different states with a different cultural and legal background have to reach an agreement upon the matter. One form of international stalking that deserves special attention is international cyberstalking. Cyberstalking – or the repetitive harassment or threat of an individual through the Internet or other electronic means of communication3 – has no geographical limitations as can be witnessed by the example of an American nurse who visited a chat room in order to stay in touch with a friend of her. When another visitor asked her questions about her culture she did not pay much attention to him, but this changed as soon as she noticed him appearing each time she logged on. Quickly, things escalated with the woman receiving 50–100 mails a day. Neither ignoring him, nor sending him angry messages could stop the stalker, and the police was not able to come up with a solution either. With the help of a specialized organization run by volunteers, she was able to trace her stalker to Turkey. The stalking stopped after she had changed her personal information on the internet.4 With the introduction and enormous expansion of the Internet, criminals have found a new means to carry out their devious behavior. Crimes such as identity theft, extortion and distribution of child pornography that were traditionally perpetrated in the offline world can now be witnessed online as well and often to an even larger extent. National boundaries that served as a restriction to offline crimes

3 Bocij, P. (2003). ‘Victims of Cyberstalking: An Exploratory Study of Harassment Perpetrated via the Internet’, First Monday, 8, 10. Available at: http://www.firstmonday.org. In 2004, Bocij proposed the following, more specific definition: “A group of behaviors in which an individual, group of individuals, or organization uses information and communications technology to harass another individual, groups of individuals, or organization. Such behaviors may include, but are not limited to, the transmission of threats and false accusations, identify theft, data theft, damage to data or equipment, computer monitoring, solicitation of minors for sexual purposes, and any form of aggression. Harassment is defined as a course of action that a reasonable person, in possession of the same information, would think causes another reasonable person to suffer emotional distress”. A cyberstalking case is furthermore: “[. . .] one in which the stalker begins to harass the victim via ICT and/or in which most of the harassment is based on the use of ICT.” See Bocij, P. (2004). Cyberstalking: Harassment in the Internet Age and How to Protect Your Family, Westport, CT, Praeger Publishers, p. 15. 4 This example can be found at www.wiredsafety.org.

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have no meaning on the World Wide Web. The same holds true for crimes that have only recently been criminalized like stalking. As a consequence, some authors have expressed the need to consider how states can work together to counter cases of international cyberstalking.5 The aim of this article is to see what problems arise in the investigation and prosecution of international (cyber)stalking and whether some of these problems could be solved. In order to answer this question there will first be an assessment of whether the problem is extensive and serious enough to justify (inter)national action or regulation (Section 8.2). The United States were the first to recognize that stalking could easily expand beyond state borders and in reaction the federal government designed a federal act to enhance the investigation and prosecution of interstate stalking. The American anti-stalking act will be looked at to see whether it can serve as an example in bridging the differences between different jurisdictions (Section 8.3). Characteristic for the European situation is that many European countries have not criminalized (cyber)stalking at all and those that have all use different definitions. The fourth section takes stock of the ways in which European countries have criminalized the conduct. If we were to design an international approach to counter stalking, how would we overcome the current differences in stalking legislation or even the absence of legislation and where do we look for common ground? Section 8.5 looks at the impediments to investigation and prosecution that arise in a national context and Section 8.6 focuses on the difficulties of dealing with international crime in general and international (cyber)stalking in particular. Finally, the Convention on Cybercrime will be analyzed to see if it can serve a purpose in the combat against international (cyber)stalking (Section 8.7).

8.2 Prevalence and Seriousness of International (Cyber)Stalking 8.2.1 International Stalking To date, over 20 years after the State of California enacted its anti-stalking legislation that sparked the international trend of criminalizing the conduct, there is still no universally agreed upon definition of stalking. Amongst other problems, this also results in varying estimations on the prevalence of the conduct. In thirteen large-scale studies on stalking prevalence within the general population lifetime prevalence estimates range from 4.5% to 23.4% of the population and last-year prevalence rates from 1.6% to almost 6%.6 It has affected between 7% and 32.4%

5 Tjaden, P. (2007). ‘Stalking in America: Laws, Research, and Recommendations’, in: Davis, R.C., Lurigio, A.J., & Herman, S. (eds.), Victims of Crime, 3rd edition, Thousand Oaks, CA, p. 85. 6 For an overview of the thirteen studies and an estimate of the Dutch prevalence of stalking see: Aa, van der S. & Kunst, M. (2009). ‘Prevalence of stalking in the Netherlands’, International Review of Victimology, 16, 4, 35–50.

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of the adult female population and 2–15% of the male population once in their lives, with a last-year involvement of 1–9% of women and 0.4–8.9% of men. Despite these wide variations, several trends or characteristics have emerged. Even the studies that held on to the most restrictive criteria reported a significant proportion of the population to be affected by the conduct. Another finding that finds support throughout the studies is that, in the general population, women are more likely than men to experience stalking victimization.7 Furthermore, young persons are more at risk to become victims of stalking than older people.8 When it comes to the impact of stalking the high prevalence numbers are especially worrying given that this behavior imposes a great strain on the private lives of the victims. Several studies have indicated that victims experience personality changes, suffer from insomnia and they often show symptoms of Post Traumatic Stress Disorder or other psychiatric and psychological complaints.9 30% of female victims and 20% of male victims sought psychological counseling and 7% never returned to work as a result of the stalking.10 Some victims had to endure profound alterations such as relocating to another place or changing identities in order to protect themselves or their loved ones.11 According to a study of female murder victims who had been killed by intimate partners, 76% of the murder victims and 85% of the attempted murder victims had been stalked by their intimate partners in the year prior to their murders.12 Unfortunately, none of the aforementioned prevalence studies included in their research design a question on international stalking so the question as to the prevalence or the impact of international stalking remains unanswered.

8.2.2 International Cyberstalking It may not come as a surprise that characterizing and defining the new concept of cyberstalking has proven equally difficult as in the case of its offline equivalent. 7 See Spitzberg, B.H. & Cupach, W.R. (2007). ‘The State of the Art of Stalking: Taking Stock of the Emerging Literature’, Aggression and Violent Behavior, 12, 64–86. 8 For example: Purcell, R., Pathé, M., & Mullen, M.E. (2002). ‘The Prevalence and Nature of Stalking in the Australian Community’, Australian and New Zealand Journal of Psychiatry, 36, 1, 114–120; Morris, S., Anderson, S., & Murray, L. (2002). Stalking and Harassment in Scotland, Edinburgh, Scottish Executive Social Research. Budd, T. & Mattinson, J. (2000). The Extent and Nature of Stalking: Findings from the 1998 British Crime Survey, London, Home Office. 9 For example: Blaauw, E., Sheridan, L., & Winkel, F.W., (2002). ‘Designing Anti-stalking Legislation on the Basis of Victims’ Experiences and Psychopathology’, Psychiatry Psychology and Law, 2, 136–145. 10 Tjaden & Thoennes (1998). Stalking in America: Findings from the National Violence Against Women Survey, Washington, DC, National Institute of Justice and Centers for Disease Control and Prevention. 11 Ibid., According to that study 11% of the female stalking victims had relocated because of the harassment. 12 McFarlane, J.M., Campbell, J.C., Wilt, S. Sachs, C.J., Ulrich, Y., & Xu, X. (1999). ‘Stalking and Intimate Partner Femicide’, Homicide Studies, 3, 4, 300–316.

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A complicating factor in this respect is that there is no consensus on whether cyberstalking should be viewed as nothing more than an extension of offline stalking, or whether it should be viewed as an entirely new form of deviant behavior, albeit related to offline stalking.13 Although worldwide data on the extent of cyberstalking do not yet exist, there is increasing empirical evidence that cyberstalking is a serious and growing problem. Estimates on the extent of cyberstalking vary considerably. They range from 474,000 to 18.75 million annual cyberstalking victims across the world.14 Still many estimates are based on flawed assumptions or unreliable and outdated statistics.15 But even if we depart from the most conservative estimate of 474,000 victims a year this still supports the idea that the problem is widespread. It is also important to note that at the moment the Internet has over 1.46 billion users worldwide16 on a world population of over 6 billion people and that its growing potential is still not exhausted. With the growth of the Internet, the crime numbers will rise as well. Large metropolitan areas such as Los Angeles and New York City have therefore already established specialized crime units that investigate and prosecute cases in response to the numerous incidents of cyberstalking.17 Cyberstalking is predicted to become even more common than offline stalking, due to several crime stimuli of the Internet. The Internet offers large opportunities to utilize advanced computer programs to spread viruses, distribute spam or to hack another person’s computer system. Stalkers have no difficulties finding a victim, while the chances of being confronted with the consequences of their actions are negligible. For the average Internet user, it is not very hard to conceal one’s identity, and data can be altered, moved or deleted within seconds, thereby destroying the evidence. Proving that a suspect has committed cyberstalking can cost a lot of effort; hence, the chances of being arrested or sanctioned are small.18 Even though it is often perceived as less serious,19 cyberstalking can cause just as much psychological, emotional or economic harm as offline stalking. Of the respondents who had been subjected to cyberstalking almost a quarter valued the stress

13 Bocij, P. (2004). Cyberstalking: Harassment in the Internet Age and How to Protect Your Family,

Westport, CT, Praeger Publishers, p. 12. p. 47. 15 Ibid. 16 See World Internet Usage and Population Statistics, Januari 2009: http://www.internetworld stats.com. 17 US Department of Justice (2001). Stalking and Domestic Violence: Report to Congress Under the Violence Against Women Act, Washington, DC, National Institute of Justice, p. 7. 18 Bocij, P. (2003). ‘Victims of Cyberstalking: An Exploratory Study of Harassment Perpetrated via the Internet’, First Monday, 8, 10. Available at: http://www.firstmonday.org. 19 Bocij, P. (2004). Cyberstalking: Harassment in the Internet Age and How to Protect Your Family, Westport, CT, Praeger Publishers, p. XII of the Introduction: The US Attorney General also reports that the lack of physical contact may create the misconception that cyberstalking is less serious than offline stalking (US Department of Justice 1999, Cyberstalking. A new challenge for law enforcement and industry, Washington, DC. 14 Ibid.,

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they had experienced as a consequence of the stalking with a ten on a ten-point scale.20 Furthermore, the posting or otherwise distributing of false information on bulletin boards, chat rooms or through direct e-mails, also known as cybersmearing, can even be more harmful than equivalent behaviors in the offline world, since information on the Internet is accessible to a large audience and it often remains accessible for a long period of time.21 There have even been incidents reported of cyberstalking cases that resulted in the physical attack of the victim. In other words, cyberstalking can have a negative impact on the victim, similar to the consequences of real life stalking. Cybercrime and cyberstalking have even been said to cost “millions of dollars in computer and network damages to businesses and fear and physiological trauma to millions of cyberstalking victims”22 although – again – this statement lacks empirical evidence. On the prevalence and seriousness of international cyberstalking, when stalker and victim reside in different countries or have different nationalities, there is no empirical or even anecdotal evidence whatsoever. The existent literature on cyberstalking has mainly been restricted to national states only. If the topic is brought up, this happens only in an assessment of general notions of procedural law and not in an empirical fashion. For example, many authors do recognize that it is difficult or even impossible to prosecute a stalker whose victim is located in a foreign country,23 but this assessment has not lead to subsequent study or contemplation. All in all there is an astounding lack of research on the topic. Where the research on the prevalence and seriousness of national (cyber)stalking as such is highly speculative already, the research on international (cyber)stalking is even non-existent. Despite the absence of “hard data” the US government has drafted special legislation to deal with this type of crime.

8.3 (Cyber)Stalking Legislation in the United States In the United States the government quickly recognized the possible multijurisdictional nature of stalking and the problems that came along with it. Next

20 Bocij

sent a questionnaire to 169 respondents who were selected by snowball sampling via e-mail. Of this sample only one-third had suffered from actual cyberstalking experiences. The design of the study will have a bearing on the possibility of generalization of the findings, a fact that the author himself generously admits. See Bocij, P. (2003). ‘Victims of Cyberstalking: An Exploratory Study of Harassment Perpetrated via the Internet’, First Monday, 8, 10. Available at: http://www.firstmonday.org. 21 Ibid. 22 Roberts, A.R. & Green, D. (2007). ‘Crisis Intervention with Victims of Violent Crimes’, in: Davis, R.C. Lurigio, A.J., & Herman, S. (eds.), Victims of Crime, 3rd edition, Thousand Oaks, CA, p. 256. 23 Bocij, P. (2004). Cyberstalking: Harassment in the Internet Age and How to Protect Your Family, Westport, CT, Praeger Publishers, p. XII of the Introduction: The US Attorney General also reports that the lack of physical contact may create the misconception that cyberstalking is less serious than offline stalking (US Department of Justice 1999, Cyberstalking. A new challenge for law enforcement and industry, Washington, DC p. 172).

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to the difficulties that may derive from international (cyber)stalking the American police and prosecution service have to deal with the complexity of a federal system as well. Given the fact that stalking is regulated on a state level, this means that there is a concern to harmonize state laws and procedures within the United States. The United States opted for a two-track approach to harmonize state legislation and to counter interstate (cyber)stalking: first, the creation of a Model Anti-Stalking Code and second, the adoption of a federal anti-stalking law. In 1993, before the majority of the states had drafted anti-stalking legislation, the National Institute of Justice developed a model anti-stalking code to encourage states to adopt anti-stalking measures themselves and to provide them with a template that was expected to withstand the anticipated constitutional challenges.24 As a result many states incorporated provisions of the code in their states’ statutes. Still there are differences between the various anti-stalking laws. States differ for example in their anti-stalking legislation as to the type of repeated behavior that is prohibited, whether a threat is required, the reaction of the victim to the stalking and the intent or mens rea of the perpetrator.25 Although most (cyber)stalking cases will fall within the jurisdiction of state authorities, there are instances where state law is inadequate, where questions of jurisdiction arise or where state agencies do not have the expertise or resources to investigate and prosecute a case.26 State law therefore needed to be supplemented by federal law for cases that did not stay within the domain of one single state. In 1996, a federal interstate stalking law was enacted that prohibits individuals from traveling across a state line with the intent to injure or harass another person.27 In 2000, the Violence Against Women Act amended the interstate stalking law so that it would include traveling across national borders. It also expanded the statute to cover conduct with the intent to kill or intimidate another person. Cyberstalking perpetrated by a stalker who is in a different state or tribal jurisdiction than the victim, is covered by paragraph 2261A(2). This paragraph makes it a federal crime to: “stalk someone across state, tribal or international lines, using regular mail, email, or the Internet (i.e. cyberstalking). The stalker must have the intent to kill or injure the victim, or to place the victim, a family member, or a spouse or intimate partner of the victim in fear of death or serious bodily injury.”28 In 2006 an amendment expanded the federal stalking statute to include “conduct which causes the victim substantial emotional distress” and that would “cover surveillance of a victim by a global positioning system.”29 24 National Criminal Justice Association (1993). Project to Develop a Model Anti-Stalking Code for States, Washington, DC, US Department of Justice, National Institute of Justice. 25 US Department of Justice (2002). Strengthening Antistalking Statutes, OVC Legal Series Bulletin, 1. 26 US Department of Justice (2001). Stalking and Domestic Violence: Report to Congress Under the Violence Against Women Act, Washington, DC, National Institute of Justice, p. 12. 27 18 U.S.C. § 2261A. 28 http://www.mincava.umn.edu/documents/factsh1/factsh1.html. 29 National Center for Victims of Crime (2007). The Model Stalking Code Revisited: Responding to the New Realities of Stalking, Washington, DC, National Center for Victims of Crime, p. 11. (18 U.S.C. § 2261A(2) (B) and 18 U.S.C. § 2261A(2) (A)).

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In drafting the federal statute, the federal legislator could have chosen to bridge the variations that exist among state stalking laws. One could think of using the strictest definition so that the prohibited behavior was already criminalized in every state. What is remarkable is that the federal regulation is in fact not in line with many of the state anti-stalking laws or the Model Anti-Stalking Code. In state law stalking is generally defined as “the willful or intentional commission of a series of acts that would cause a reasonable person to fear death or serious bodily injury and that, in fact, does place the victim in fear of death or serious bodily injury.”30 In contrast to the majority of state laws, the federal law does not require an actual reaction from the victim to classify conduct as cyberstalking. So the stalking does not have to cause the victim to actually fear death or bodily injury. Furthermore, the federal law is a “specific intent” crime, meaning that it requires proof that the stalker intended to cause the victim to fear death or personal injury. Many states, on the other hand, adopt a “general intent” requirement, implying that the stalker simply intentionally committed prohibited acts without necessarily intending the consequences of those actions.31 On top of that, cyberstalking with an inter-jurisdictional component is criminalized even in states where cyberstalking as such has not been criminalized at all. In Illinois, Maryland, Hawaii, Connecticut and Wisconsin, the anti-stalking statutes all use narrow definitions of stalking that involve following, approaching or otherwise maintaining a physical proximity to a person.32 Cyberstalking that is not supplemented with behavior that has a connexion with the offline world is not subjected to penalty in those states. The power to impose federal legislation that is not in conformity with state law is inherent in the American federal system, but things become more complicated in an international context when states are autonomous and have the right to withhold from ratification if they do not consent to certain provisions. Before assessing what legislation would be most suitable to deal with international stalking in the European – or even in a global – context and how this legislation needs to be worded in order for it to succeed, it is necessary to first have a look at the way stalking is criminalized in most European Member States. If there is sufficient common ground, drafting anti-stalking legislation that is widely accepted will not be that complicated.

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Department of Justice (2002). Strengthening Antistalking Statutes, OVC Legal Series Bulletin, 1. This is in conformity with Section 8.2 of the Model Anti-Stalking Code. 31 For more information on the division between ‘specific intent crimes’ and ‘general intent crimes’ see: National Center for Victims of Crime (2007). The Model Stalking Code Revisited: Responding to the New Realities of Stalking, Washington, DC, National Center for Victims of Crime, pp. 32–33. For that matter, the new Model Stalking Code as drafted by the National Center for Victims of Crime prefers ‘general intent’ over ‘specific intent’ just as the 1993 Model Anti-Stalking Code. 32 US Department of Justice (2002). Strengthening Antistalking Statutes, OVC Legal Series Bulletin, 1.

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8.4 (Cyber)Stalking Legislation in Europe In 2007, a report was published that contained the results of a project aimed at collecting and analyzing the legal regulations on stalking across the European Member States.33 The report paints a picture of a highly differentiated manner to tackle the problem of stalking across Europe. The differences already begin with the term stalking. Where the American states at least share common words for the conduct, the – non Anglo-Saxon – European Member States use native words or expressions that fully or only partially cover the concept of stalking. More importantly, in contrast to the United States where all states have criminalized stalking, only 8 out of the 25 European countries have a specific law against stalking.34 Of the 17 countries that had not enacted an anti-stalking law, half indicated that they felt the need to pass one, but the other half did not think this was necessary.35 These Member States were already satisfied with the existent legislation and/or society did not perceive stalking as a problem. When we focus on the Member States that have enacted specific laws to counter stalking, there is still an apparent lack of common ground. Many of the American laws were in one way or another based on or inspired by the Model Anti-Stalking Code, thereby sharing certain common features, but the European countries could not depart from an exemplary code. As a result, anti-stalking acts differ on various aspects: where the reaction of the victim is a qualifying element of the offense of stalking in the UK, Ireland and Malta, it is not included in the definition of stalking in Austria, Belgium, and the Netherlands; where certain jurisdictions require the perpetrator to have had “intent,” others do not think this a constituent of stalking at all, not even in the sense of “general intent”; where Austrian judges only have the penalty of imprisonment at their disposal, the other countries have opened up the possibility of imposing a fine as well or instead; where Germany and Austria have clearly specified the behaviors of the stalker that can represent stalking, other jurisdictions make use of more generic definitions without an enumeration of the possible stalking acts; and where most Member States will not define a conduct as stalking unless it consists of a course of conduct of at least two occasions, in Belgium and Malta a single incident can suffice (Table 8.1).

33 Modena

Group on Stalking (2007). Protecting Women from the New Crime of Stalking: A Comparison of Legislative Approaches Within the European Union. Final report, University of Modena and Reggio Emilia for the European Commission, p. 79. 34 Actually, with the recent Italian, Czech, Hungarian and Luxembourg criminalization there are now 12 countries that have enacted specific anti-stalking legislation. 35 The countries that felt the need to pass anti-stalking legislation were Italy, Portugal, Greece, Sweden, Finland, Cyprus and Luxembourg. The countries that did not feel this necessity were Estonia, Slovakia, Poland, Hungary, Lithuania, Spain and Slovenia. See Modena Group on Stalking (2007). Protecting Women from the New Crime of Stalking: A Comparison of Legislative Approaches Within the European Union. Final report, University of Modena and Reggio Emilia for the European Commission, p. 12.

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Intent of the perpetrator

Anxiety/fear/expectation of violence by the victim Imprisonment

Austria Belgium Denmark Germany Ireland Malta Netherlands United Kingdom

– Yes Yes Yes – – Yes –

– – Yes Yes Yes Yes – Yes

Max. 1 year Max. 2 years Max. 2 years Max. 10 years Max. 7 years Max. 6 months Max. 3 years Max. 5 years

Certain differences only appear to be superficial. In Belgium, for example, nobody has ever been charged with or convicted for stalking because of one single incident.37 Other differences, however, are more substantial. It appears as if two distinct models have emerged.38 On the one hand there is the model of the Englishspeaking countries with their emphasis on the reaction of the victim and on the other hand there is the continental European model which, especially in the most recent laws, seems to focus on the stalker’s ways of conduct and his or her intentions. In contrast to the UK, Ireland and Malta, the reaction of the victim is not a qualifying element of the crime of stalking in Austria, Belgium, Germany, Denmark and the Netherlands. These countries appear to place more emphasis on the “types of behavior and/or the intent of the stalker or on concepts such as privacy or the disturbance of the peace.”39 In other words, variations in legislation also appear to derive from even more substantial differences, namely different opinions on what is so deviant about stalking behavior and why it deserves punishment and criminalization in the first place. The continental anti-stalking laws stand out for the great importance given to the right to privacy, whereas the Anglo-Saxon countries, with their emphasis on anxiety of the victim seem to take the right to live without fear as a justification for anti-stalking legislation.

36 The respective provisions on stalking can be found in Section 107a Austrian Penal Code (‘Beharrliche Verfolgung’); Article 460ter Belgian Penal Code (‘belaging’); Section 264 Danish Penal Code (‘forfølgelse’); Paragraph 238 German Penal Code (‘beharrlicher Nachstellungen’); Section 10(1) Non-Fatal Offences against the Person Act 1997 (Ireland); Article 251a and 251b Maltese Penal Code (‘fastidju’); Article 285b Dutch Penal Code (‘belaging’); and the Protection from Harassment Act 1997 (UK). 37 In fact, the courts have decided that ‘repetitiveness’ is also a requirement in Belgium (De Hert, P., Millen, & Groenen (2008). ‘Het delict belaging in wetgeving en rechtspraak. Bijna tot redelijke properties gebracht’, Tijdschrift voor Strafrecht, 9, 3–9. 38 Modena Group on Stalking (2007). Protecting Women from the New Crime of Stalking: A Comparison of Legislative Approaches Within the European Union. Final report, University of Modena and Reggio Emilia for the European Commission, p. 69. 39 Ibid., p. 70.

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These differences may become less apparent in the future. In the United States more and more states are adopting anti-stalking legislation in which the victim is no longer supposed to have suffered a certain level of fear – e.g. fear of bodily injury or death – but where it suffices if a reasonable person would suffer emotional stress, because of the harassment. Furthermore, a number of courts have held that this emotional distress no longer needs to be proven by independent expert testimony.40 It seems as if the focus on the mental effects of a victim is slowly sliding towards a more objective standard.

8.5 Investigation and Prosecution of (Cyber)Stalking on a National Level The national investigation and prosecution of stalking appears problematic and it seems as if the difficulties generally arise in an early stage of the criminal justice procedure. Several publications paint a picture of a criminal justice practice defined by low reporting and high attrition rates.41 On top of that, anecdotal evidence suggests that a part of the victims are dispatched in an even earlier stage. Victim Support Netherlands estimates that at least 25% of the stalking victims are involuntary sent away from the police station without even having a registration taken down, let alone a report.42 Another recurring theme is the inactiveness on the part of the police.43 Taking into account that only a part of the stalking cases is reported to the police, it is remarkable that in a significant number of reported cases the police remain inactive. In the United States, about half of the stalking incidents were reported to the police; however, in 18.9% of these cases the police did nothing.44 The disinclination of law-enforcement officers to intervene may possibly be caused by the high attrition rate due to the withdrawal of the complaint by the

40 National

Center for Victims of Crime (2007). The Model Stalking Code Revisited: Responding to the New Realities of Stalking, Washington, DC, National Center for Victims of Crime, p. 48. 41 For example, Bruynooghe, R., Vandenberk, M.A., Verhaegen, L., Colemont, A., & Hens, I. (2003). Geweld in het Meervoud: Een kwalitatieve benadering van de betekenissen rond geweldvormen in België, Diepenbeek/Louvain-la-Neuve, SEIN; Groenen, A. (2006). Stalking: Risicofactoren voor fysiek geweld, Antwerpen/Apeldoorn, Maklu. 42 This estimation was expressed during a personal conversation of the author with Mrs MarieLouise Janssen-Brouwer, the former research director of the organization. Some of the victims that had filled out the questionnaire as referred to in note 4 confirmed that they had been sent away without having a registration taken down. 43 For example, Finch E. (2001). The Criminalisation of Stalking: Constructing the problem and evaluating the solution, London, Cavendish. Morris, Anderson, & Murray, Stalking and Harassment in Scotland, and Spitzberg, B.H. (2002). ‘The Tactical Topography of Stalking Victimization and Management’, Trauma Violence and Abuse, 2, 261–288. 44 Tjaden & Thoennes (1998). Stalking in America: Findings from the National Violence Against Women Survey, Washingon, DC, National Institute of Justice and Centers for Disease Control and Prevention.

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victim.45 As in other cases of interpersonal violence, the police sometimes believe that arresting the offender is a waste of time, because victims are inclined to drop charges. A second explanation for police inaction could lie in the perceived difficulty to procure sufficient evidence.46 The collection of evidence in criminal cases needs to live up to a higher standard than the one used in civil law suits. Criminal proceedings are encumbered by constitutional protections such as due process of law and proof beyond reasonable doubt. Given the ongoing and often varying pursuit tactics, the thin line between legal and illegal behavior, the lack of obvious injury, and the unpredictable nature of stalking, police and public prosecution may believe the evidentiary threshold too high in many stalking cases. Finally, the police sometimes seem to trivialize stalking. In a German study twothirds of the 48 victims who had been into contact with the police were very satisfied with their work, but only half of the respondents felt being taken seriously by the police.47 In a larger study of 190 victims the result was even more sobering: 73% did not feel being taken seriously by the police and 86% thought that the steps that were taken were insufficient.48 A reason for the lack of proper treatment may be found in the disinclination to acknowledge stalking as a genuine crime worthy of punishment.49 Stalking incidents are dismissed as “only domestic” or as private matters in the relational sphere that are inappropriate for legal intervention.50 Also in the experience of the National Center for Victims of Crime stalkers often “get away” with their criminal behavior, because the burden of proof is too high, because stalking is only a misdemeanor crime, because many stalking behaviors are viewed as harmless and because current state laws do not address the full range of stalking behaviors.51 For a crime in which it is already hard to have the national police take an interest, initiating an international investigation and prosecution could be a significant

45 Finch E. (2001). The criminalisation of stalking: Constructing the problem and evaluating the solution, London, Cavendish. 46 For instance: Attinello, K.L. (1993). ‘Anti-Stalking Legislation: A Comparison of Traditional Remedies Available for Victims of Harassment versus California Penal Code Section 646.9 (California Anti-Stalking Law)’ Pacific Law Journal, 24, 4, 1945–1980; Groenen, A. (2006). Stalking: Risicofactoren voor fysiek geweld; Malsch, M. (2004). De Wet Belaging: Totstandkoming en toepassing, Nijmegen, Ars Aequi Libri. 47 Bettermann, in: Hoffmann, J. (2003). ‘Stalking: Polizeiliche Prävention und Krisenmanagement’, Kriminalistik, 12, 726–731. 48 Ibid. 49 Rupp, M. (2005). Rechtstatsächliche Untersuchung zum Gewaltschutzgesetz: Zusammenfassung: Ein Überblick über die Ergebnisse allerTeilstudie, retrieved 9 May 2008, from Bundesministerium der Justiz. Available at: http://www.bmj.bund.de. 50 Morris, Anderson and Murray, Stalking and harassment in Scotland and Spitzberg, B.H. (2002). ‘The Tactical Topography of Stalking Victimization and Management’, Trauma Violence and Abuse, 2, 261–288. 51 National Center for Victims of Crime (2007). The Model Stalking Code Revisited: Responding to the New Realities of Stalking, Washington, DC, National Center for Victims of Crime, p. 17.

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problem. Next to the difficulties of convincing the local police to take charge, the question is which problems could arise in an international context? In order to answer this question, it is necessary to have a look at jurisdiction, extradition and mutual assistance.

8.6 Investigation and Prosecution of (Cyber)Stalking on an International Level 8.6.1 Jurisdiction One of the issues that always needs to be addressed in cases of cross-border crimes is the question of jurisdiction. Which country has the right to prosecute and convict suspects and, if more than one country has jurisdiction, which claim shall prevail? The establishment of jurisdiction is a domestic affair. Each country decides for itself whether it has jurisdiction or not. Given that not every country uses the same standards for exercising jurisdiction, this can lead to two sorts of jurisdictional conflicts: negative and positive ones. A negative jurisdictional conflict arises when no particular country claims jurisdiction. One reason for not claiming jurisdiction may lie in the absence of domestic legislation that establishes jurisdiction over the conduct. Another reason to abstain from claiming jurisdiction could lie in the insignificance of the harm done to other countries or in the lack of means or the unwillingness to prosecute of the country in which the perpetrator resides.52 This results in the impunity of the perpetrator. The exact opposite holds true for positive jurisdictional conflicts, i.e. when several jurisdictions seek to prosecute a criminal at the same time based on the same course of conduct.53 This situation raises the danger of over-criminalization of activities and double jeopardy.54 Traditional jurisdiction provisions are based on the principle of territoriality. This entails that “[a] nation (or a state) had jurisdiction to prescribe what was and was not proper conduct within its physical territory and had jurisdiction to enforce prescriptions against actors whose unlawful conduct had occurred within its territory.”55

52 Koops,

B. J. & Brenner, S.W. (2006). ‘Cybercrime Jurisdiction – An introduction’, in: Koops, B.-J. & Brenner, S.W. (Eds.). Cybercrime and Jurisdiction: A Global Survey, Den Haag, T.M.C. Asser Press, p. 6. Technically, it is incorrect to refer to these cases as negative jurisdictional conflicts, since the conflict does not derive from a lack of jurisdiction. 53 A positive jurisdictional conflict is “(. . .) a situation in which more than one country claims jurisdiction over a perpetrator based on the same general course of conduct.” (Brenner, S.W. (2006). “The Next Step: Prioritizing jurisdiction,” in: Koops & Brenner (eds.), Cybercrime and Jurisdiction, Den Haag, T.M.C. Asser Press, p. 328). 54 Cox, N. (2006). ‘Cybercrime and Jurisdiction in New Zealand’, in: Koops & Brenner (eds.), Cybercrime and Jurisdiction, Den Haag, T.M.C. Asser Press, pp. 289–290. 55 Koops, B.J. & Brenner, S.W. (2006). ‘Cybercrime jurisdiction – An introduction’, in: Koops & Brenner (eds.), Cybercrime and Jurisdiction, Den Haag, T.M.C. Asser Press, pp. 4–5.

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Although many countries have expanded their jurisdiction provisions over the past few decades to include other factors such as nationality of the perpetrator, nationality of the victim or universality as well, the principle of territoriality remains the normal basis for the exercise of jurisdiction.56 The principle of territoriality is usually understood to include the “location of the act” only. Jurisdiction is based upon a person having been physically present within a country’s territory at the time the offense was committed. If a country would hold on to the principle of territoriality, this could seriously hamper prosecution and conviction of international (cyber)stalking. Take the case where a person (A) resides in a country that adheres to the territoriality principle in which only the “location of the act” constitutes jurisdiction. Imagine that this person is stalked through the Internet by perpetrator (B) who lives in a different country and who exclusively operates from his home country. If B’s country of residence is unwilling to prosecute the perpetrator, then A would be left empty-handed, despite the possible presence of anti-stalking legislation in his or her own country. In practice, this problem appears to become more and more obsolete, since the principle of ubiquity – the principle that takes the location of the act and the location of the result as constituents of jurisdiction – has been adopted by many states over the past 50 years. It is expected to become “the dominant criterion among countries that belong to the civil-law tradition.”57 However, until all countries pass similar legislation the risk of negative jurisdictional conflict remains. When it comes to the risks of concurrent jurisdiction, there are probably fewer difficulties. First of all, conflicts of jurisdiction are very rare and when they occurred in the past they were always solved at a practical level. The decisive consideration usually was which jurisdiction had the best chances “for successful prosecution and adjudication of the particular case.”58 It seems that states take on a very pragmatic approach to resolve positive jurisdictional conflicts. In the past, when conflicts of this nature arose in cases of high-sea piracy, the state that apprehended the pirates was automatically granted jurisdiction.59 It is not without reason that the Convention on Cybercrime trusts signatory states to solve situations of multiple jurisdictions informally.60 There are no indications to presume that things would go differently in cases of international stalking. Some authors have wondered whether international cybercrimes – a category that would include international cyberstalking – deserve specific jurisdiction legislation, since the territorial and the ubiquity criterion may pose difficulties in the immaterial world of the Internet. On whose territory is a cybercrime supposed to have taken place if the crime consists of “immaterial bits and bytes” that may travel arbitrarily

56 Ibid. 57 Zúñiga

& Londoño (2006).‘Cybercrime and Jurisdiction in Chile’, in: Koops & Brenner (eds.), Cybercrime and Jurisdiction, Den Haag, T.M.C. Asser Press, p. 152. 58 Brenner, S.W. (2006). ‘The Next Step: Prioritizing jurisdiction’, in: Koops & Brenner (eds.), Cybercrime and Jurisdiction, Den Haag, T.M.C. Asser Press, p. 330. 59 Ibid., pp. 333–334. 60 Council of Europe Convention on Cybercrime, Budapest, 23 November 2001, ETS No 185, into force 1 July 2004, Article 22(5).

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around the world?61 And whose claims should be given priority if for example a virus infects computers in numerous countries? Still, these difficulties seem of less importance when stalking is concerned. In most cyberstalking cases there is often only one identifiable offender operating from behind a computer in a certain country and one identifiable victim receiving the messages in another country.62 This generally leads to an easily determinable location of the criminal act and a just as easily determinable location of the result, namely the country from which the messages were sent and the country in which the harassing e-mails were received and where the victim, as a consequence, experienced the harassment. International stalking cases therefore usually do not involve more than two countries. It is highly theoretical to presume that the countries whose local Internet switches accidentally have processed the online data would claim jurisdiction, given that “a nation can only exercise jurisdiction to prescribe when the exercise of such jurisdiction is reasonable.”63 As explained before, both countries involved will probably be pragmatic enough to ascertain the forum that has the closest nexus to the case. On top of that, given the lack of interest that many countries have shown in criminalizing stalking or – when criminalized – in investigating and prosecuting the case, the problem most likely to occur will not be a multitude of countries “fighting” over a stalking case, but a striking absence of countries with a prosecutorial desire. As it is, the ubiquity theory seems sufficient and easily applicable in cases of stalking.

8.6.2 Extradition When (cyber)stalking has an international component, the collection of evidence and the extradition or surrender of the suspect will require assistance from foreign agencies. In the international community this assistance is often laid down in multior unilateral treaties that describe in which cases and to what extent assistance will be given and under which circumstances the gathered evidence or the (fugitive) suspects or convicts will be handed over to the requesting authorities. Within traditional extradition procedures the requesting state has to submit a request for extradition to the appropriate authorities with a reference to the relevant legal provisions and an accurate legal description of the offense for which extradition is requested.64 The requested state can judge on the basis of this information whether the fact meets the principle of dual criminality – the principle 61 Koops,

B. J. & Brenner, S.W. (2006). ‘Cybercrime jurisdiction – An introduction’, in: Koops & Brenner (eds.), Cybercrime and Jurisdiction: A Global Survey, Den Haag, T.M.C. Asser Press, p. 2. 62 In order not to complicate matters further the possibility that offender and victim are continuously travelling or relocating around the world is not considered. Neither is the possibility that a group of stalkers from different countries harasses only one single victim, as might be the case with so-called “solicited stalking” or “stalking by proxy”, in which one person instigates other people to harass a victim, e.g., by placing an appeal on a weblog or an internet forum. 63 Koops, B.J. & Brenner, S.W. (2006). ‘Cybercrime jurisdiction – An introduction’, in: Koops & Brenner (eds.). Cybercrime and Jurisdiction: A Global Survey, Den Haag, T.M.C. Asser Press, p. 5. 64 For example, Article 12 European Convention on Extradition, Paris, 13 December 1957, in force 18 April 1960, ETS 24.

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that extradition will only occur if both the requesting and the executing country recognize the behavior as a crime. Usually, extradition schemes require an “aggravated double criminality,”65 which means that the fact not only has to be criminalized in the requested country, but also that the maximum penalty in both countries consists of at least 1 year imprisonment.66 When the extradition is requested for the execution of a verdict, the treaties furthermore require that the sentence carries at least a 4-month imprisonment. As regards dual criminality, it is not required that the criminal provision of the requesting state has the same qualification as the one in the requested state. What is only relevant is whether the provision basically protects the same right.67 In other words, extradition involves the conduct rather than the specific elements of the criminal provision. This requirement needs to be interpreted broadly.68 In stalking cases the dual criminality requirement poses several difficulties. The most obvious problem is that stalking as such is not criminalized in many countries, thereby already seriously hampering the fulfillment of the principle of dual criminality. And in case both countries do have anti-stalking legislation, the additional requirement of a maximum penalty of 1 year could be problematic as well. Malta, for example, punishes stalking behavior with a maximum imprisonment of only 6 months. Furthermore, when extradition is requested in order to execute a verdict, the lenient attitude of most judges will make the 4-month imprisonment threshold practically unfeasible. Finally, although dual criminality does not require the same qualifications or even the same wordings of the anti-stalking provision in both countries, the requirement that the provisions basically need to protect the same right may prove to be precarious nevertheless. If one country has implemented antistalking legislation in order to protect a person’s privacy, whereas the other country was predominantly motivated by the desire to guarantee its citizens a life free from anxiety and fear, then even a broad interpretation of dual criminality may fail to bridge the differences. With the introduction of the European Arrest Warrant (EAW) and the expiration of the implementation deadline on the first of January 2004 the classical extradition procedures between the Member States of the European Union were replaced by a faster and simpler surrender procedure.69 One implication of this is that instead of requesting cooperation, Member States are now able to order

65 Glerum,

V.H. & Rozemond, N. (2008). ‘Overlevering en uitlevering’ in: Sliedregt, Sjöcrona, & Orie, (eds.), Handboek Internationaal Strafrecht, Deventer, Kluwer, p. 196. 66 For instance, Article 5 (1) subparagraph a of the Dutch Extradition Act (Uitleveringswet). The minimum of 1 year imprisonment is not required for extradition to member states of the European Union if treaties between the Netherlands and those member states prescribe a different maximum penalty (Article 6 (1) Dutch Extradition Act). 67 At least, according to the Dutch Supreme Court: HR 30 augustus 2004, NJ 2004, 552. 68 HR 30 augustus 2005, NJ 2005, 541. 69 Borgers, M. J. & Sjöcrona, J.M. (2008). ‘Europees straf (proces) recht’ in: van Sliedregt, E. Sjöcrona, J.M., & Orie, A.M.M. (eds.). Handboek Internationaal Strafrecht: Schets van het Europese en Internationale Strafrecht, Deventer, Kluwer, p. 117.

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assistance. The Member States are in principle under the obligation to cooperate when requested by another Member State. So the requirement of dual criminality is seriously restricted. The warrant may be issued if the person whose return is desired is accused of an offense for which the maximum penalty in the issuing country is at least a year in prison, or if he or she has been sentenced to a prison term of at least 4 months.70 Especially the abolishment of the dual criminality principle simplifies procedures. However, the dual criminality principle is only abolished for thirty-two categories of offenses that are punishable in the issuing Member State with a prison term of at least 3 years.71 Although the list of offenses does contain acts that may form part of the stalking, like computer-related crime, rape and grievous bodily harm, stalking as such is not included. This means that the extradition of stalkers remains subject to the condition that stalking is an offense under the law of the executing Member State.72 In the Netherlands, as in most other countries, the principle of dual criminality reapplies again.73 The EAW is only applicable to Member States of the European Union. For countries and states that do not belong to this legal domain, the European Convention on Extradition of 1957 may apply. Although the requirement of dual criminality is also no longer explicitly mentioned in the European Convention on Extradition one can deduce from the many reservations that states are still reluctant to extradite citizens or to submerge them to foreign coercive means or punishment when the conduct under investigation is not considered criminal under national law.74 So when the conduct is not criminalized in both the requesting and the assisting country or, in other words, when the requirement of dual criminality is not met, these treaties are often not applicable.

8.6.3 International Legal Assistance At times the collection of evidence in stalking cases can be laborious. For example, in order to link the cyberstalker with the crime it is necessary to identify the computer system from which the harassing messages were sent. In case this system is unknown, one needs to follow the trail from the computer of the victim back to the stalker’s system. Sometimes information that was stored by service

70 Ibid.,

Article 2 (1) subparagraph 1. 2 (2) of the Framework Decision on the European arrest warrant. 72 Ibid., Article 2 (4). 73 Article 7 (1) subparagraph 2 Dutch Surrender Act (Overleveringswet). 74 Some countries, such as Brazil, as a rule refuse to extradite their citizens (Albuquerque, R. Chacon de (2006). ‘Cybercrime and jurisdiction in Brazil: From extraterritorial to ultraterritorial jurisdiction’, in: Koops & Brenner, (eds.), Cybercrime and Jurisdiction, Den Haag, T.M.C. Asser Press, p. 129). Japan only ratified two extradition treaties; with the US and Korea (Reich, P.C. (2006). ‘Cybercrime and jurisdiction in Japan’, in: Koops & Brenner, (eds.), Cybercrime and Jurisdiction, Den Haag, T.M.C. Asser Press, p. 252). 71 Article

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providers is needed to identify the source. Once the computer system is identified and located, investigation and prosecution agencies need to prove that it was the suspect who sent the prohibited e-mails or who posted the slander on a bulletin board. Especially when perpetrator and victim are located in different jurisdictions, the legal assistance of foreign police officers or prosecutors can be required. Next to the extradition, international cooperation in criminal cases can therefore exist of carrying out an investigation or executing compulsory powers such as the execution of a search warrant, the taping of confidential telecommunication or the seizure of goods. There exist two basic forms of international legal assistance, i.e. informal and formal assistance. The first, sometimes referred to as investigator-to-investigator assistance,75 occurs when investigators share information and provide assistance to each other without prior legal arrangements thereto. When the information sought is publicly available, this is an easy option, but when coercive powers are invoked, the cooperation will have to be based on formal legal assistance regimes under international law. Within formal international legal assistance one can distinguish between (a) cooperation based on the traditional legal assistance on request under international law or (b) cooperation based on the execution of an order based on an EU instrument of mutual recognition. Traditional schemes of international legal assistance depart from the law of the requested state, whereas mutual recognition cooperations depart from the law of the requesting country in determining whether a request for legal assistance can and will be followed up.76 Much is also dependent on the attitude of a certain country towards international legal assistance and international political relations. In the Netherlands nearly every request for legal assistance is complied with. The rule applies that “whatever is allowed under national law is in principle allowed under mutual legal assistance as well.”77 In other countries, providing help to foreign requesting authorities is not standard practice. International cooperation in Chile is, for instance, rare and Japan has only ratified one bilateral mutual legal assistance treaty.78 Although informal assistance is the norm – judicial authorities are said to exchange information on a large scale79 – in (cyber)stalking cases informal requests are probably less useful, since the evidence required often involves coercive powers

75 Urbas,

G. & Grabosky, P. (2006). ‘Cybercrime and Jurisdiction in Australia’, in: Koops & Brenner, Cybercrime and Jurisdiction, Den Haag, T.M.C. Asser Press, p. 65. 76 Reijntjes, J.M., Mos, M.R.B., & Sjöcrona, J.M. (2008). ‘Wederzijdse rechtshulp’, in: Van Sliedregt, Sjöcrona, & Orie, (eds.), Handboek Internationaal Strafrecht, Deventer, Kluwer p. 296. 77 Ibid., p. 246. 78 Zúñiga & Londoño (2006). ‘Cybercrime and Jurisdiction in Chile’, in: Koops & Brenner, (eds.), Cybercrime and Jurisdiction, Deventer: Kluwer, p. 154; Reich (2006). ‘Cybercrime and Jurisdiction in Japan’, in: Koops & Brenner (eds.), Cybercrime and Jurisdicion, Den Haag, T.M.C. Asser Press, p. 252. 79 Lee, J.H. (2006). ‘Cybercrime and Jurisdiction in the Republic of Korea’, in: Koops & Brenner, (eds.), Cybercrime and Jurisdicion, Den Haag, T.M.C. Asser Press, p. 266.

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which can only be obtained through formal means.80 An investigation may involve the seizure of goods (e.g. a server) or the disclosure of information by a foreign communication service provider. Even though legal assistance treaties generally require that states afford each other mutual assistance to the widest extent possible, the process of formal mutual assistance is “notoriously slow and bureaucratic.”81 There are, however, tendencies to make mutual legal assistance more efficient and less time-consuming. Where domestic laws or treaties may require dual criminality as a precondition for mutual assistance, the modern trend is to eliminate the principle of dual criminality to a large extent.82 The Council Framework Decision on the European evidence warrant is a good example of this.83 Together with the time limits that are set on mutual cooperation, the absence of dual criminality will accelerate and facilitate cross-border evidence collection. The Convention on Cybercrime is also in favor of eliminating dual criminality when it comes to the preservation of traffic data, because the preservation of traffic data is not considered that intrusive and because the establishment of dual criminality could take up a lot of time during which evidence may be destroyed. However, when requested for the seizure of goods, the principle of dual criminality generally still applies, with all the difficulties that were already touched upon in Section 8.6.2

8.7 Council of Europe Convention on Cybercrime So when certain behavior is not criminalized in both the requesting and the assisting country extradition treaties are often not applicable. And when there exists no general or specific treaty between two countries, the investigation and prosecution of international crime is similarly hindered. Recognizing these issues, the Council of Europe drafted an international convention on cybercrime that would facilitate and stimulate the international investigation and prosecution of cybercrimes. In response to the growing international concern over threats posed by computerrelated crimes, the Council of Europe has published several studies and recommendations to address the need for new laws in this field. In July 2004 the joint efforts to combat computer crimes resulted in the coming into force of the Council of Europe Convention on Cybercrime, the first – and to date only – binding international treaty on the subject. The Convention provides a framework for international cooperation and it provides guidelines for governments who want to criminalize

80 Walden,

I. (2006). ‘Cybercrime and Jurisdiction in United Kingdom’, in: Koops & Brenner, (eds.), Cybercrime and Jurisdicion, Den Haag, T.M.C. Asser Press, p. 307. 81 Urbas, G. & Grabosky, P. (2006). ‘Cybercrime and Jurisdiction in Australia’, in: Koops & Brenner, (eds.), Cybercrime and Jurisdicion, Den Haag, T.M.C. Asser Press, p. 65. 82 Reijntjes, J.M., Mos, M.R.B., & Sjöcrona, J.M. (2008). ‘Wederzijdse rechtshulp’, in: Van Sliedregt, Sjöcrona, & Orie, Handboek Internatonaal Strafrecht, Deventer, Kluwer p. 291. 83 Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters, OJ 2008, No. L350, 30 December 2008.

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the conduct. Although the Convention was developed within the framework of the Council of Europe, the Convention is open to signature by non-European states as well. According to the status on 1 January 2009 the Convention was signed by 23 countries and ratified by another 23.84 Apart from the European Member States, important countries such as the United States of America, Japan, Canada and South Africa also signed – and in the case of the US even ratified – the Convention. This implies that the countries with the highest grade of IT-penetration are already party to the Convention. Also several states that did not sign have voluntarily adopted (parts) of the Convention in their national legislation. The aims of the Convention are to harmonize cybercrime legislation; to harmonize criminal procedural legislation to gather electronic evidence and to facilitate international cooperation in the investigation and prosecution of computer crimes. In order to remove or minimize procedural and jurisdictional obstacles, the ratifying countries are required to (1) establish certain substantive offenses in the area of cybercrime, (2) to adopt domestic procedural laws to investigate and prosecute computer crimes and (3) to provide a solid basis for international law-enforcement cooperation in investigating and prosecuting these crimes. To some of the provisions in the Convention there is room for ample reservations. The reason for this is that states differ significantly in which sort of behavior they regard as serious or worthy of punishment. The provisions on child pornography, for example, are subjected to reservations from the United States, because of the first amendment, but also from state parties such as Japan, where child pornography is not as reprehensible as in most western countries.85 Furthermore, the national definitions of, for example, forgery vary greatly.86 As a result, the offenses in the Convention are represented by a common minimal standard that states can extend upon in their domestic law. Another manifestation of the legal differences that had to be bridged was the fact that certain behaviors were not criminalized at all. As the explanatory report already indicates, the committee only included a list of offenses on which consensus could be reached. The committee discussed the inclusion of other offenses, such as cyber-squatting,87 but given the lack of support in favor of criminalization, they discarded them again. The only exception to this rule was the content-related offense of distributing racist propaganda through computer systems. Many delegations were strongly in favor of such criminalization, but some expressed concerns regarding the possible damage it could do to the freedom of expression. Due to the complexity of the issue, consensus could not be reached. However, instead of discarding the topic altogether, the committee decided to refer the issue to the European

84 This

information can be found by searching for the Convention on Cybercrime on: http://www.conventions.coe.int. 85 Kaspersen, H. (2004). ‘Convention on Cybercrime – Current state of implementation’, Council of Europe Octopus Interface Conference: Challenge of Cybercrime, 15–17 September, Strasbourg. 86 Explanatory Report of the Convention on Cybercrime, consideration 82. 87 Ibid., consideration 42.

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Committee on Crime Problems who, in turn, were to draft an additional protocol to the Convention.88 Whether cyberstalking was discussed and explicitly rejected cannot be distinguished from the explanatory report, since it makes no mention of it. According to judge Stein Schjølberg, a member of the High Level Expert Group that drafted the Convention, cyberstalking was indeed not considered as part of the recommendations at all.89 The topic of cyberstalking was never even brought up during the negotiations, since it had not raised a great deal of awareness. The Convention does criminalize certain behavior that can be part of international cyberstalking. If the stalker illegally gains access to the victim’s computer (hacking); illegally intercepts e-mails or other electronic data transfer; intentionally inflicts damage on the data stored in the computer of the victim; or sabotages his or her computer, then this behavior is covered by the Convention.90 Just as vandalism, threat and battering were subjected to penalty long before the Californian legislator had even heard of the social construct of stalking, so are certain aspects of cyberstalking prohibited in the Convention as well. But just as in the offline world, these miscellaneous incidents often do not cover stalking in its entirety, they do not cover the repetitiveness that victims find so disturbing and they do not cover some of the most alarming behaviors such as the sending of e-mails with a threatening content or the spread of slander through the Internet. So apart from the situation where the stalker employs tactics that are explicitly prohibited in its text, the Convention on Cybercrime does not offer any stimulus to signatory states to criminalize harassment through the Internet or other means of telecommunication. This is a missed opportunity, since an inspiring and harmonizing effect could be expected from inclusion. One of the aims of the Convention is to bring national criminal political goals in the area of cybercrime closer to each other. As long as cyberstalking is not on the political agenda of a substantial part of the signatory countries, the chances of ever having cyberstalking included – albeit in the form of an additional protocol – are small.

8.8 Conclusion Although there is no exact estimate of the prevalence of international (cyber)stalking as such,91 the fact that cyberstalking is or could increasingly become a problem for criminal justice systems and potential victims seems apparent. Even if the possibility of international cyberstalking may seem rather theoretical to date, 88 Ibid.,

consideration 35. information was given to the author during an e-mail conversation with judge Schjølberg. 90 Convention on Cybercrime, Articles 2, 3, 4 and 5. 91 Although it should be noted that cyberstalking does not differ from other cybercrimes in this respect. The committee that drafted the Council of Europe Convention on Cybercrime contends that one of the major challenges in combating cybercrime is assessing the extent and impact of the criminal act (Explanatory Report of the Convention on Cybercrime, consideration 133). 89 This

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developments like YouTube, Facebook and SecondLife have a more international character and users are bound to come into contact with people of different nationalities. Currently, there is no universal protection against (cyber)stalking,92 but in the light of the expected growth of international (cyber)stalking in size and complexity, international agreement and cooperation on the matter does seem necessary. There appear to be four impediments to the international investigation and prosecution of (cyber)stalking. First, there are discrepancies between different jurisdictions as to what conduct is criminalized and what is not. Sovereign states are allowed to design their criminal laws in the way they see fit and therefore a certain conduct can be prohibited in one country, while it is perfectly legal in another. As a result, (cyber)stalkers can be protected under the law of the state in which they reside, while their harassment can have an effect on the territory of a state that does prohibit the behavior. The second problem is that the criminal provisions in states that have criminalized (cyber)stalking are not in accordance with each other. In some states the reaction of the victim is a constitutive element of the crime, others require specific or general intent on the part of the stalker and yet others place emphasis on a list with specific stalking behaviors. As a result of the first two discrepancies, international cooperation can be complicated. This is the third problem. Given the international nature of certain stalking cases, it is crucial that law-enforcement agents can call in the assistance of colleagues in other countries. Criminal investigators are generally only allowed to exercise their investigative authorities within the state boundaries unless they have permission to expand their search to other territories and the same goes for foreign investigators. Due to the aforementioned divergences the principle of dual criminality could form a barrier for extradition and sometimes for international legal assistance as well. The biggest problem, however, is the danger of negative jurisdictional conflicts, where the stalker gets away with impunity, because none of the countries involved claims jurisdiction. It is often already a delicate task to have policemen take an interest in stalking matters when the conduct takes place within the domain of one jurisdiction only, let alone when an international component comes into play. The conduct is trivialized or at least not taken up by the local authorities. To improve the investigation and prosecution of international (cyber)stalking it would be a good strategy to encourage harmonization of laws and to improve international collaboration in the field. Given that the authoritative prescription of rules such as the US federal anti-stalking law is impossible within an international context that is governed by state sovereignty, it is a good idea to first make sure that national governments are aware of the intrusiveness and seriousness of stalking and the detrimental effects that it can have on people’s lives.93 Solid training 92 Ellison,

L. & Akdeniz, Y. (1998). ‘Cyber-stalking: The Regulation of Harassment on the Internet’, Criminal Law Review, Criminal Justice and the Internet, spec. ed., 29–48. 93 The mention of stalking as a conduct that should be declared a breach of law by Women Against Violence Europe during an expert group meeting of the UN Division for the Advancement of Women is a good start. (Issues brief prepared by WAVE (Women Against Violence Europe) Violence against women: Good practices in combating and eliminating violence against women,

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programs and national campaigns to raise awareness amongst local policemen and other criminal justice officials should not be forgotten either. If more countries were to criminalize the conduct there would be more bearing power to facilitate international investigation and prosecution and, perhaps, even to come to the creation of international standards. Although an insertion of the crime of cyberstalking in the Convention on Cybercrime or the European Arrest Warrant may be a little premature to date, it could become an option in the future once stalking forms part of the political agenda. Meanwhile, the creation of a Model Code after the American model would be helpful in harmonizing the existent domestic provisions and in inspiring countries that have not criminalized the conduct yet. Since the perception of stalking appears to be slowly converging across jurisdictions and cultures, the drafting of such a Model Code becomes less and less problematic. After analyzing many definitions of stalking Groenen found out that stalking always boils down to “repetitive behavior that is unwanted by the person at whom the behavior is directed.”94 A Model Code could depart from this common theme. Given the trend to abolish or at least seriously diminish the importance of the “fear”-requirement, the Model Code should either completely disregard the effect that stalking can have on the individual victim or it should take the “reasonable person” as a standard. Finally, from the perspective of the international fight against stalking, the current trend of abandoning the principle of dual criminality within extradition and legal assistance and the adoption of the principle of ubiquity as a standard for the establishment of jurisdiction are to be applauded as well. Acknowledgments The author would like to thank Prof. Theo de Roos and Prof. Marc Groenhuijsen for reviewing previous drafts of this chapter.

Expert Group Meeting, Organized by: UN Division for the Advancement of Women, Vienna, Austria, 17–20 May 2005). 94 Groenen, A. (2006). Stalking: Risicofactoren voor fysiek geweld, p. 43.

Chapter 9

Digital Tools: Risks and Opportunities for Victims: Explorations in E-victimology Corien Prins

9.1 Introduction Providing Google or any of the other search engines the search term e-victimology does not offer many hits – yet. Anyone who looks for true technology-amplified action by victim support organizations quickly learns that strategic use of digital tools is far from a common scenario. Of course, several interesting projects – one of them being Courtwise, an initiative of the Australian New South Wales Government1 – have been launched. But we are still far away from a world in which the strategies employed by victim support organizations are partly determined by the opportunities new digital tools offer. In fact, there has been little serious attempt to conceptualize the effect of new technologies on victims’ needs and subsequently the impact on the work of victim support organizations. Clearly, the digital era will challenge the work and position of established organizations and mechanisms that support victims. Subsequently, it requires us to consider the effect on the traditional framework of both national and international (European) instruments that protect victims’ rights. Most of these instruments were introduced at a time when digital tools were relatively new phenomena. We may presume that a more intensive reliance on digital instruments and strategies could have an effect on both the position of victims and established victim support organizations as well as the discussion on what rights need to be granted to victims and other actors involved. There is more to the developments than this. In addition to facilitating online selfhelp and self-activism, the Internet and its applications also threaten the position of individual victims due to concerns about their privacy. Exchanging traditional ways of victim support for digital versions paves the way for invasive forms of victim surveillance. For their online behavior can be tracked, traced and monitored. The digital world thus also threatens the position of people who already suffered from C. Prins (B) Professor of Law and Informatisation at TILT, Tilburg University; council member Scientific Council for Government Policy (WRR), The Hangue, The Netherlands e-mail: [email protected] 1 See

Victims Advisory Board of the government of N S W, Australia: http://www.courtwise.nsw. gov.au/lawlink/victimsservices.

215 R. Letschert, J. van Dijk (eds.), The New Faces of Victimhood, Studies in Global C Springer Science+Business Media B.V. 2011 Justice 8, DOI 10.1007/978-90-481-9020-1_9, 

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a crime. The challenges facing victims and victim support organizations are compounded by the fact that the Internet – and thus the tools provided by means of the Internet – is marked out by features that cannot be tackled by means of the wellknown paradigms developed along the lines of physical and local bounds of space and time. For these confines lose their meaning in an environment that is characterized by timeless, borderless and anonymous communication and interaction. As a result, the application of digital tools will also affect the role of the state in safeguarding victims’ rights and the interests that underpin the body of law established to protect victims. Being a borderless phenomenon by definition, the Internet testifies of the challenging and complex implications related to this book’s overarching theme – the conflicting impact of globalization. Undeniably, there is both a positive and a negative side to e-victimology in a world without geographical borders. As will be shown in this chapter, there are unprecedented opportunities and avenues for victim support across borders, but the new digital arena also challenge victim support in thus far unknown ways. Whether the developments will actually benefit or deteriorate the position of victims is not an easy question to answer. For it is far from easy to fully grasp the implications of new digital tools. First, as was discussed in the previous chapters, the world of actors, stakeholders and prevailing interests behind the new arena of digital crimes and the subsequent impact on ordinary people becoming a victim of e-crime is still largely unchartered territory. Second, experiments and tools to promote victim assistance by means of digital tools are rather new. The majority of victim support organizations has not yet moved beyond the use of websites and e-mail and has not yet implemented or noticed the capabilities, value and strategic potential of other digital tools, in particular interactive tools. Second, the effect of these tools for both the position and needs of victims as well as the work of support organizations has thus far been poorly researched and theorized. What, for example, might be the implications for victim support of tools that allow for bonding and sharing emotions in a virtual setting? In addition, will the needs of victims associated with the online environment differ from those expressed in the physical world? Real life use of and experimentation with new technologies happens slowly, making it difficult to get a balanced picture of the possible advantages, problems and challenges of their use. Thus, it is at this moment in time not feasible to fully determine the implications for the needs and rights of victims, let alone soundly balance the pros and cons of digital tools for the position of victims. Nevertheless, an exploration of the potential role and influence of these tools as well as the impact of certain features of these tools in the domain of victim protection and victim support might be of interest for our understanding of future developments and the impact on established instruments for assisting victims of crime. It is this observation that underlies this chapter’s ambition. Hence, this article is not about new forms of crime (e-crimes such as identity fraud) and unprecedented levels of digital versions of traditional crimes (child pornography) discussed in the other chapters in this volume. Instead, it focuses on the unprecedented opportunities and avenues for victim support in a highly digitized society. Also it addresses the challenges that victim support interests face in the new digital arena. The next

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section (Section 9.2) starts with briefly considering the possible negative implications, pitfalls and risks of the employment of digital tools for victims and victim support organizations.2 The discussion (Section 9.3) then turns to the core part of this chapter: the opportunities digital tools may offer to pursue the objectives of victim support. In what ways will these tools transform well-established practices or add new dimensions to victim assistance and the position of victims? In addressing these questions, expressed victim needs will be used as a starting point. Finally, Section 9.4 briefly reflects on the implications of the digital challenges for established rights, in particular those adopted by the Council of Europe and the European Union.

9.2 New Crimes and Risk Factors Although it is not always easy to fully grasp the exact consequences of our dealings in the borderless world of the Internet, it is certain that this world is, in various ways, functioning differently from the offline world. Clearly, the Internet and other digital tools put pressure on the safety of people and may have profound implications for the well-being of people who have already been victimized. What can be seen as key facilitating factors here?

9.2.1 Permanently and Silently Traced Prior to the advent of the “information age,” information was scattered, forgettable and localized. Now it is becoming permanent, searchable and available for anyone who cares to search and look. Massive digital dossiers of information about people can be instantly located and made available by means of search engines and a simple click of a mouse. The Internet enables us to spread, locate and use information about ourselves and other people with a speed and efficiency that we have never before witnessed. Increasingly, people are exposing personal information in social network sites and blogs. Often, this is not restricted to stories about themselves. The public or private lives of others are exposed as well, sometimes without these people even knowing. A person you may never have met can snap a picture of you with his cell phone camera and post it on one of the moblogs (mobile weblogs) on the Internet or a website specially dedicated to posting photos.3 Video websites such as MySpace and YouTube, allow people to upload and share photos and video clips online. Live surveillance cameras are linked to websites and for the world to view.4

2 In this chapter, the term digital tool is used to refer to a broad range of technical means for audio, image and text communication as well as information distribution, such as blogs, social networking (MySpace, Facebook). mailing lists, open media websites (YouTube, Indymedia). wikis, chat systems, instant messaging (like Twitter). etc. 3 http://flickr.com. 4 http://www.earthcam.com.

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It is this new reality that may have profound implications for the privacy and wellbeing of victims. It is generally recognized that privacy and confidentiality play an important role in the ability of victims to recover from the trauma of a crime. Several regulations therefore stipulate that victims must be assured that certain information will not be disclosed to third parties. Unfortunately, it is highly questionable whether in the online world adequate assurances can be realized to offer safeguards against improper use and misuse of data on victims. There is more than just the new risks related to the Internet. Developments such as Global Positioning System (GPS)5 and Radio-frequency identification (RFID)6 offer the potential that victims are tracked and traced by their offenders. A main concern with these innovations is that they are small and hidden. Victims are thus not necessarily aware of the presence of a device that works on the basis of GPS or RFID. More and more, products being paid for by credit card or bought in conjunction with a loyalty card are tagged with RFID, making it possible to indirectly deduce the identity of the purchaser. It thus becomes possible for to continue to follow victims without them knowing. A Safety Planning document published by the Pennsylvania Commission on Crime and Delinquency cites the new opportunities of GPS. Offenders use GPS, installed in a mobile phone or a victim’s car to know exactly where a victim is. What looks like a small black box on the underside of your car may actually be a GPS. As the technology advances, GPS’s are becoming cheaper and smaller. In the near future, a “pen” inserted into a purse may actually be a GPS. Also be aware that your wireless laptop may function as a GPS by an offender with computer knowledge. (. . .) Offenders are also using small cameras to monitor victims. Hidden in smoke detectors, lamps, or a pinsized hole [sic] in a wall, these high-resolution wireless cameras can even be activated remotely.7

9.2.2 Permanently Unsafe In addition to the relative ease with which victims can now be tracked and traced, technology facilitates a sort of permanence by nature that puts pressure on the safety-related needs of victims, in particular victims of e-crime. Victims indicate a need for preventing a repeat of the crime. But e-crimes are typically the type of crimes that haunt their victims over a very long period. There is usually no such thing as the moment of the criminal act. Often the moment the individual becomes aware of the incident because the first negative consequences reveal themselves is

5 Global

Positioning System – a network of satellites that pinpoints devices, targets, locations, etc. is a method for automatic identification that works on the bases of storing and remotely retrieving data using tags. These tags are very small (sometimes hardly visible) and can be applied to or incorporated into a product (car, clothes that a person wears, etc.) for the purpose of identification and tracking using radio waves. Some tags allow the product to be tracked and followed from several meters away, but invisible to the person being followed. 7 http://www.pccd.state.pa.us/pccd/lib/pccd/victim/forms/safety_planning_-_vs.pdf. 6 RFID

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merely the beginning of a whole chain of incidences. Identity theft is a prominent example in this respect.8 Typically this chain-type of criminal act and the pervasiveness of its consequences have a negative impact on the victim’s feeling of helplessness and weakness. Victims express a need for effectiveness and control. Technological advances, however, often leave them with a feeling of loss of control and vulnerability of repeated criminalization. The danger of permanence is also visible when it comes to a victim being haunted by his or her offender. Given the Internet, it is relatively easy for criminals to keep track of their victims, even from the secured world of their prison. A social network website like Facebook contains information (including pictures) of millions of high school and college students. This information will not fade away with time and college students may now put it there, not imagining that these details will be used for completely other purposes in the event they become a victim and criminals follow these online traces to stay close to their victims. Obviously there is a danger here for repeated victimization. Illustrative here is what happened early 2010 in the UK. Former UK Justice Secretary Jack Straw ordered the removal of 30 prisoners’ Facebook pages after the inmates used this social network site to taunt and harass their victims.9

9.3 New Opportunities for Addressing Victims’ Needs Many of the online tools that today’s kids have at their fingertips are in principle also at the disposal of victim support organizations and could potentially be used to help victims enhance their position or help them deal with their traumatic experiences. Instant messaging, weblogs and digital information distribution are waiting to become routine instruments in creating awareness and bringing personalized information to the attention of individual victims, responsive to their specific needs. Interactive digital tools could play a key and successful role in teaching victims to cope with emotional distress suffered as a result of cybercrime. And given the progress made in the field of serious gaming, support initiatives might use virtual games to empower victims and understand how people react in crises. In the early 1990s, experts were already aware of the potential of technology in organizing victim support.10 It could offer better opportunities to assist victims in the various stages of the criminal justice system, e.g. by using video or audio

8 Identity theft reveals itself in a variety of ways, with or without the use of technology. The range of different ways has resulted in a variety of definitions or descriptions of the phenomenon. One such definition is that identity theft is the collection, possession, transfer or use of personal identification information for the purpose of committing a crime. Another description found in literature is that identity theft relates to the criminal misuse and/or falsification of identity and identifying information (such as passwords, credit card details, social security number, etc.). See Chapter 7 by Van der Meulen and Koops, this volume. 9 The Times, 12 February 2010. 10 Groenhuijsen, M.S. (1995). “Technology and victim support – An Overview ”.

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systems and have the victims’ voice scrambled. It enabled them to testify without a confrontation with offenders. The early technology-based initiatives were primarily using (stand alone) computers and databases. With the advent of mobile communication, satellite networks, the Internet and applications based on these technologies (such as digital social networks), numerous new opportunities for assisting victims arose at the turn of the century. One such example was the Aware in-home alarm system for domestic violence (Aware stands for Abused Women’s Active Response Emergency).11 In case of danger, the victim activates an emergency necklace pendant, sending a silent radio signal to the police. Illustrative is also a pilot project, started in January 1997, by the Florida Department of Corrections using the Global Positioning Satellite (GPS) system to track the movement and location of offenders in real time, 24 h a day, notifying probation officers of violations as they occur. The increased protection offered to crime victims was considered a clear benefit of this surveillance initiative: “For instance, when the court orders a sex offender to have no contact with the victim, exclusionary boundaries can be set at an appropriate distance around the victim’s residence and place of employment. If the perimeters are broken, an early warning can be sent to the victim.”12 But the key contribution here relates of course to Internet-based initiatives. More and more, websites become routine instruments in creating awareness and bringing relevant information to the attention of victims as well as the organizations that support them. Some of them apply a “one stop shop” facility for combined access to all relevant information and services (including counseling, submitting claims for expenses, etc.). From the available online sources aimed at victims’ assistance, a picture emerges of a growing interest in the use of this medium to manage and disseminate information to enhance the position of victims. Let us try now to take a more detailed glance at the developments and make some forecasts about the future of victim assistance once digital tools are more intensely and effectively used. In doing so, the needs expressed by victims of crimes are taken as a starting point.13

9.3.1 Information Needs A need frequently expressed is the need for information. It is well-accepted that information provision is a vital tool in empowering victims to make informed 11 See

e.g. http://www.snbw.org/dv_faq/aware.htm. See also: Balogh, L., Haaf, J., & Römkens, R. (2008). Tot hier en niet verder: De effectiviteit van AWARE in vergelijking met de 112+ aanpak van belaging, Tilburg, Universiteit van Tilburg – IVA Beleidsonderzoek en Advies. 12 Mercer, R, Murray, B., & Tully Bryant, P. (2000). “Global Positioning Satellite Systems: Tracking Offenders in Real Time”, Corrections Today, July: http://findarticles.com/p/ articles/mi_hb6399/is_/ai_n28784073. 13 Studies on expressed needs may be found in: Maguire, M. (1958). “Victims’ Needs and Victim Services; Indications from Research”, Victimology, An international journal, 539–559; Boom, ten A., K.F. Kuijpers (2008). Behoeften van slachtoffers van delicten. Een systematische literatuurstudie naar behoeften zoals door slachtoffers zelf geuit, WODC nr. 262, The Hague, available at: www.wodc.nl.

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choices about available remedies that may assist them in recovering. Victims usually interpret the need for information broadly, not only encompassing information about the course of the criminal case and the applicable legal system, but also about issues such as mentally coping or trying to understand the crime and the motives of the offender. Experts argue that acquiring relevant information may be crucial in achieving a feeling of basic safety.14 In order for this to be realized, information must not merely be available, but also known and understood. Studies reveal key problems here. Victims have difficulties in understanding the often standardized official documents given their level of education. Also, victim support organizations find it difficult to reach potential victims (an estimated 30% receive no information at all) as well as bereaved family. And to make it even more difficult, studies also show that communication and information distribution must be timely, appropriate, relevant, and in some situations even sensitive to the needs of specific (groups of) victims. A 2005 UK study of the Office for Criminal Justice Reform showed that with young black men becoming a victim of crime, sensitivity to ethnicity, age and gender are relevant when being addressed.15 Given these problems and challenges, the question is of course what typical and additional benefits information provision by online means might offer? A first obvious potential relates to the continuous availability of relevant information: online services are at hand on a 7 days/24 h basis. Victims are not faced with problems related to opening times and (for obtaining first instance information) waiting lists. The benefit of a more continuous availability of information appears of importance in light of the claim that victims of crime may suffer further trauma in situations where timely information is lacking. But online availability may not merely help to make the information available in a timely, but also in an up to date manner. In comparison to paper-based brochures, online sources may be updated more quickly. Needless to say that this advantage is only realized if the victim support organization ensures having an organizational routine in place for ensuring that the information is indeed accurate and constantly updated. Another possible benefit relates to the Internet’s character of being a worldwide medium not hindered by geographical factors of distance or similar reasons that downplay the broad availability of victim assistance programs. In particular in countries where for reasons of distance or financial restraints, the delivery of victim assistance is relatively underdeveloped in remote and rural areas, the information needs of people may be better addressed through online delivery. Victims living in remote areas of large countries such as Australia, Canada and certain European countries can receive online information no matter where they live.16 Of course in these parts of the world online facilities are comparatively advanced. Introducing 14 Boom

& Kuijpers (2008). referring to Maslow’s theory of human motivation, Psychological Review, 1943, pp. 370–396. 15 Office for Criminal Justice Reform, The Experiences of Young Black Men as Victims of Crime, London, 2005. Available at: http://www.cjsonline.gov.uk/. 16 Gigler, B.S. (2001). “Empowerment Through the Internet. Opportunities and Challenges for Indigenous People”, TechKnowLogia, July/August, pp. 33–37.

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similar initiatives in developing countries and countries in transition is a different challenge.17 Nevertheless, here another type of technology appears to act as stimulus to make victim assistance programs become more easily available: mobile phones.18 Africa e.g. is considered to be the fastest-growing mobile market in the world, with in 2010 at least 23 million mobile subscribers and more mobile lines than fixed lines.19 In South America and the Philippines mobile phones are used for a hotline of text messages called sos sms.20 Elsewhere mobile phones with their short text message and photo facilities are employed also in helping and assisting crime victims as well as affirm their rights in manners previously unheard of.21 But clearly the developing world still faces innumerable barriers in having access to technological facilities, which again restricts the potential for victim empowerment.22 In the longer term, in particular with the combination of satellite facilities, the Internet, however, does have the potential of addressing the current lack of access to legal channels and victim support initiatives in countries where poverty reigns. As such it may enhance a more equitable access to victim support information and assistance programs.23 Another opportunity of digital tools relates to the ease of large-scale information distribution. Broad information delivery of standard information through the Internet may have a benefit in reducing transaction costs, allowing that funds remain available for more complex and tailored assistance. The relative ease with which information can subsequently be distributed in a personalized manner might offer new opportunities in situations where the local people who deliver assistance lack specialized expertise. In addition, online information may be tailored to particular needs of certain groups with culturally and linguistically diverse backgrounds (multilingual online brochures) or people who lack the intellectual capacity to understand official letters, brochures and other institutional information distribution. By means of hyperlinks, victims may be referred to the most appropriate services, for example support to specific communities, to children and young people, older people, from different socio-economic backgrounds, etc.

17 Castells, M. (1999). Information Technology, Globalization and Social Development, United Nations Research Institute for Social Development (UNRISD) Discussion Paper no. 114, September; Arunachalam, S. (2002). “Reaching the Unreached: How can we use ICTs to empower the rural poor in developing world through enhanced access to relevant information? 68th IFLA Council and General Conference, Glasgow, August 18–24. 18 ‘Africa: The Impact of Mobile Phones’, in: The Vodafone Policy Papers Series, No. 3, March 2005, p. 1. 19 http://www.itu.org. 20 See e.g:http://mobileactive.org/sos-sms-text-helpline-philippine-workers. 21 http://mobileactive.org/taxonomy/term/1586. 22 Let alone problems related to literacy and (social and cultural) obstacles that refrain people (in particular women) from having access to these facilities. 23 Which of course doesn’t imply that rights are indeed materialised or that implementation structures are available that realise access to justice.

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Studies have found that victims’ information needs relate to the wish to understand the applicable legal system. A main point of criticism voiced in the past was the isolation of the judicial system from other services and the feeling that many of the difficulties that victims face here stem from a lack of openness by court systems regarding their processes.24 The lack of education given to victims about the court process was said to lead victims to unrealistic expectations about the court process.25 The realization of the need for more insight into the legal system may be facilitated by online tools in that such tools may help make the system’s chain, time frames of prosecution and the applicable conditions more transparent. Facilitating a better insight into the judicial system might also be realized by means of so-called serious gaming applications. More and more virtual games are used as a tool to simulate, explore and motivate the roles and behavior of people,26 which in the case of victim support could relate to the role of the judge, victim, defendant, witnesses and other parties involved.27 This type of information and knowledge support may of course also be directed at other parties who play a role in the victim support chain.

9.3.2 Safety-Related Needs Clearly recognizable in victims’ studies is the need for a quick police response and the speedy arrest of the offender. This need appears closely related to the (emotional) need for immediate safety and prevention of a repeat of the crime. Clearly, the Internet offers potential for quick police response, one of them being lodging a complaint of a crime through electronic means. Another digital application that addresses this need is e-tagging (by means of a chip and GPS) of criminals when they are out of jail (e.g. as part of a home detention program).28 Among others, it may hinder or prevent criminals from stalking or contacting their victims. The online environment also offers more challenging instruments for victims, victim support organizations as well as law-enforcement agencies. As was discussed earlier in this chapter, the online environment is characterized by various new phenomena, among them the irrelevance of distance. Offenders who engage in 24 Graycar,

A. (1999).“ New Research on Victims of Crime in Australia – Victims needs, victims rights – an Australian Institute of Criminology report”, Conference Paper, Restoration for Victims of Crime: Contemporary Challenges, Melbourne, 9–10 September, available at: http://www.aic.gov.au/conferences/rvc/graycar2.html. 25 US Office for Victims of Crimes, Best, Connie L., Ronald E. Acierno, Heidi S. Resnick (2006). MA Multimedia Program to Improve Criminal Justice System Participation and Reduce Distress Among Physically Injured Crime Victims, 2006 available at: http://ojp.usdoj. gov/ovc/publications/bulletins/physically_injured/welcome.html. 26 Bainbridge, W.S. (2007). “ The Scientific Research Potential of Virtual Worlds”, Science, 317, no. 5837, July, 472–476. 27 See http://www.seriousgames.org and http://en.wikipedia.org/wiki/Serious_game. 28 More recently the application of a heart rate sensor (to monitor the wearer’s heart beat and adrenaline level) is considered, based on the Heartbeat Hoodie concept of Diana Eng: http://www.dianaeng.com/.

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identity theft are often geographically separated from their victims by thousands of miles and numerous borders. Other challenging Internet characteristics relate to anonymity, the relative ease to pose as someone else (facilitating stalking children for sexual purposes) and new means to seek out and groom Internet users for criminal purposes. Speedy investigation, effective collection of evidence as well as quick identification and apprehension of the offender is therefore by no means an easy task. In the meantime, numerous victims, most prominently victims of ID-theft are haunted by their offenders over a very long period of time. No surprise, some feel that law-enforcement agencies are ill-equipped to handle e-crime and fall short in tracking and prosecuting the criminals. Given the apparent failure to police the online world through traditional institutional means, individuals (not being victimized themselves) and victims take matters into their own hands and start searching for the criminals themselves to subsequently turn them over to the law-enforcement agencies. “There’s a sense of urgency that victims have, and it just doesn’t synch-up with the time that it takes law enforcement to pursue these matters.”29 Hence, various online initiatives with their self-organization and social interaction features start helping law enforcement cope with crime investigation or preventing crimes from happening, whereby the initiatives are not by definition limited to preventing and tackling e-crimes. Some of these initiatives go beyond helping official institutions, but take matters into their own hands and publicly expose the criminals themselves. Online grassroots initiatives, in particular in the United States, testify of these new forms of “do-it-yourself justice,” “take victim support in our own hands behavior” and “eye-for-an-eye” type of revenge. A prominent example is the Hollaback photoblog initiative, a website that encourages women to use their camera phones and post photos, films and narrative accounts about men who harass them on the streets.30 The initiative to “holla back” by using digital tools started in New York, but was since then followed by similar movements in the United States, India and European countries.31 The website’s aim to address the need of victims for safety and prevention of the crime is illustrated by the mission statement of the Boston Hollaback movement: “Street harassment is a serious and multi-faceted social problem that makes women and people of other marginalized groups unsafe in public spaces. (. . .) We believe that building a safe world demands diverse international fronts of resistance. Dedicated to the city of Boston, we continue to reclaim public space by empowering everyone to “Holla Back” at street harassers.”32 A well-known initiative that aims to prevent people from becoming victimized is Perverted Justice, an Internet-based organization founded by Xavier Von Erck in 2002 whose volunteers pose as young kids, setting a sting for pedophiles. The

29 Schwartz,

J.(2004). “On the Web, Vengeance is Mine (and Mine)”, New York Times, 28 March. e.g. http://www.hollabacknyc.com/. 31 http://www.womensenews.org/article.cfm/dyn/aid/2734. 32 http://www.hollabackboston.blogspot.com. 30 See

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organization calls itself a volunteer virtual army to identify pedophile activists and their online networks. We’re a foundation that does not simply thunder about a problem, we don’t merely advocate or preach against an issue from a distance. No, our foundation is a pro-active endeavor. We’re aggressive. We’re confrontational. We believe you have to be to make a difference in the fight against predators and pedophiles. We don’t wring our hands and say “they’re so evil, what can be done!” We find a way to get things done.33

In doing so, the organization claims to subscribe to protocols that are well within the standards of law enforcement followed by official authorities. Up until the moment pedophiles are apprehended by officials, a large group of volunteers handles fake chats, arranges phone conversations, sets up meetings and collects the evidence. Reportedly, in 2007 the organization worked with sixty-five volunteers conducting the chats, approximately twenty phone verifiers (people cleared to talk to suspects because they sound like children) and another twenty-five people creating content (poems, drawings and other things) for the profiles.34 Another example here is the Wikisposure project, part of the Perverted-Justice Foundation. The information on pedophiles contained within this project is made available for the purpose of informing the Internet community, creating awareness for parents, and deterring individuals such as the people profiled in the Wiki.35 These and other online initiatives teaming up with law-enforcement agencies and exposing criminals all have elements of what is called vigilantism. Vigilantism has, as argued by Johnston six necessary features: (i) it involves planning and premeditation by those engaging in it; (ii) its participants are private citizens whose engagement is voluntary; (iii) it is a form of “autonomous citizenship” and, as such, constitutes a social movement; (iv) it uses or threatens the use of force; (v) it arises when an established order is under threat from the transgression, the potential transgression, or the imputed transgression of institutionalized norms; (vi) it aims to control crime or other social infractions by offering assurances (or “guarantees”) of security both to participants and to others.36

Vigilantism appears to be facilitated by several characteristics of the Internet, among them its interconnectedness and the lack of traditional institutional control mechanisms.37 Vigilantism in the online world – also referred to as digilantism – is, however, not restricted to the above-mentioned eye-for-an-eye type of revenge by luring criminals in a sting. Other initiatives are primarily directed at the effect of networking capacities, raising awareness and giving victims a feeling of safety or self-esteem. 33 Seehttp://www.pjfi.org/?pg=about. 34 Garret,

R. (2007). “Internet Watchdogs”, Law Enforcement Technology, March, available at http://www.officer.com/publication/pub.jsp?pubId=1\ampissueId=41. 35 http://www.wikisposure.com/Main_Page. 36 Johnston, L. (1996). “What is Vigilantism”, The British Journal of Criminology, 36, 220–236. 37 Crews, Clyde Wayne (2006). “Giving Chase in Cyberspace”, Competitive Enterprise Institute, October: http://cei.org/pdf/5569.pdf.

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9.3.3 Emotional Needs The above shows that the Internet offers much more than a mere efficient instrument for the traditional activities and strategies to enhance the position of victims by means of information provision. The Internet may also be used to collaborate on knowledge sharing, emotional support as well as to mobilize capacity. The latter relates to another key need identified in victim support studies: the fulfillment of emotional needs. Among the emotion-related needs are: support in their own social network, the opportunity to talk with someone (relatives but also victims of a similar crime)38 or having victims tell their story in court without actually having to be there. With online discussion groups and other facilities to express thoughts and emotions to a broad or selected audience, the Internet offers unimagined opportunities for personal expression of emotions, fears and other feelings related to a crime. Also, online tools may be instrumental in facilitating low-threshold empowerment: they may enhance the ability to organize similar interests without victims having to leave the safe environment of their home. Provided the adequate conditions are in place, a benefit of the Internet is that sharing of emotions can be done in a rather anonymous setting. Such an arrangement might in particular offer gay and lesbian victims opportunities. Through its interactive elements, online victim support tools may also be responsive to varying needs of victims depending on their own trauma, personal experiences or way of recovery. Technology could also play a role in coping with trauma- related distress. As known, violent crimes such as sexual assault, rape and child abuse may have longlasting and serious psychological effects on the victims. Studies into mechanisms and abilities for coping with trauma-related distress have shown that victims may benefit from cognitive as well as behavioral coping strategies. The latter involve such actions as reporting the crime to police authorities or initiating a civil compensation procedure. Cognitive coping strategies are directed at attributing the violent crime to certain factors (either within the victim himself or outside the victim/external factors). The use of these strategies may help victims to integrate the violent experience into their lives, shed light on the way they perceive themselves and ultimately help strengthen their self-esteem. What if technology is applied to try to enhance the effectiveness of these coping mechanisms? For example, could a virtual game be used as a tool to simulate the act of violence by offering victims a close to reality possibility to relive their violent experience? May such “real-life” simulation help victims to better integrate the violent experience into their lives? It is at this moment in time not feasible to fully (scientifically-based) determine the (long-term) benefits of digital tools for the emotional needs of victims. But clearly, there appears to be a potential role for these tools. A more practical benefit of online available cognitive coping instruments could be that the threshold for using these instruments is lowered: victims do no longer

38 Davis,

R.C., Lurigio, A.J., & Skogan, W.J. (1999). “Services for Victims: A market research study”, International Review of Victimology, pp. 101–115.

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need to take the (sometimes mentally difficult) step to actually go to a victim support organization or a psychologist. What is more, the Internet appears an excellent vehicle for making these and other technology-based coping strategies available to a worldwide audience. Of course, cultural differences and the impact of cultural traditions on the acceptance or success of certain (digital) support tools may cause that certain tools will not easily find their way to a worldwide audience. Finally, the support strategies no longer merely depend on the availability of individuals working at – often local – victim support organizations. Services are available at a distance 7 days a week 24 h. As mentioned, it is still unknown to what extent technology-based coping strategies may indeed offer new possibilities to overcome posttraumatic stress or mitigate the effects of victimization. Outside the specific domain of victim support, we see some evidence that the use of online digital tools that allow for expressing and sharing emotions does have an effect on psychological support.39 More and more, digital tools (the Internet40 and serious gaming41 ) are employed for cognitive behavior therapy, problem solving-directed therapy and the prevention and treatment of mental illnesses and complaints.42 Of course, one could doubt whether virtual tools and online contacts can ever replace the indispensable interpersonal contacts of the physical world needed for psychological support. For the Internet, as could be argued, does not offer the emotions of real direct interpersonal interaction. The reaction must be that it is too early to draw any conclusions on the real potential of ICT in coping with the psychological aftermath of violent acts on their victims. Experiments that apply technology in trauma-related coping instruments are rare because the use of ICT by victim support organizations is mostly limited to information distribution and communication facilities. As a result, the very effect of the application of technology in cognitive victim support strategies is poorly theorized. Nevertheless, the present-day popularity of gaming, virtual worlds and other interactive digital tools and their effect on the self-esteem of – mostly younger generation – individuals is a good illustration of the possible role new interactive opportunities may play in victim support strategies. Further critical studies into the effect of interactive digital tools as instruments to cope with trauma-related distress, is therefore necessary. 39 Carlbring,

P., Westling, B.E., Lungstrand, P., Ekselius, L., & Andersson, G. (2001). “Treatment of Panic Disorder via the Internet: A randomized trial of a self-help program”, Behavior Therapy, 4, 751–764. 40 Emmerik, van A.A.P., Kamphuis, J.H., & Emmelkamp (2008). “Treating Acute Stress Disorder and Posttraumatic Stress Disorder with Cognitive Behavioral Therapy or Structured Writing Therapy: A ramdomized controlled trial”, In: Psychotherapy & Psychosomatics, 77, pp. 93–100. 41 The research ambition of the Dutch clinical psychologist Arnold van Emmerik: “One of the first things is comparing the effects of cognitive behavioral therapy to those of virtual reality exposure in clients with a panic disorder.”, in: Digizine Mindopen, Spring 2009, p. 15. 42 The International Society for Research on Internet Interventions (ISRII) e.g. is a non-profit organization of researchers whose work focuses on the development and testing of a variety of web-based treatment programmes. See also: Rochlen, A.B., Zack, J.S., & Speyer, C. (2004). “Online Therapy: Review of relevant definitions, debates, and current empirical support”, Journal of Clinical Psychology, 3, 269–283.

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Without a critical reflection, empirically and theoretically, on the difference the new tools really do make, we cannot capture and understand their impact on ways and instruments to deal with victim-related post-traumatic stress.

9.3.4 Internet-Based Research The Internet and mobile telephone may of course also act as tools for research into the general needs of victims as well as further study on risk assessment of victimization. In the past decades an enormous amount of empirical data on crime victims has been collected through victimization surveys. A rich set of field data has been gathered through the International Crime Victims Surveys.43 These and other data have allowed scientists to reveal patterns in the interrelationship between victimization and offending.44 The data also offered input for various theoretical models that may explain variations in victimization risks.45 Technology could be employed in different manners in victimization surveys.46 Conducting victimization surveys through the Internet may allow for a more efficient, speedy and broader gathering of data. Also, the Internet offers new mechanisms for participation on the basis of anonymity, which again could lower the hurdle for victims to participate. The other side of the story, however, is that online surveys may bear the risk of less reliable data. Compared to direct-contact instruments, such as telephone interviewing, Internet-based surveys do not always provide the required certainty as regards the reliability of the responses, the claimed country of origin of the respondent, the identity of the person and the type of person (male/female).

9.4 Impact on Established Rights What do the sketched developments mean for established victims’ rights and the responsibilities of governments in facilitating and promoting these rights? As known, various legal documents have been adopted worldwide to protect victims and promote their rights. Among them are the legally binding European Union Framework Decision on the Standing of Victims in Criminal Proceedings, adopted

43 See

the victim surveys in over 30 countries as part of the International Crime Victims Survey of J. van Dijk launched in 1989. The most recent data are available in: Criminal Victimisation in International Perspective. Key Findings from the 2004–2005 ICVS and EU ICS, The Hague, Boom Lega Publishers, WODC Ministry of Justice of the Netherlands, 2007: http://www.intervict.nl. 44 Gottfredson, M.R. (1984). “Victims of Crime: The dimensions of risk”, Home Office Research and Planning Unit, Report No. 81, London, HMSO. 45 See for an overview of the different models: Fattah, E.A. (1991). Understanding Criminal Victimization, Scarborough, Ontario, Prentice Hall Canada. 46 See: Cantor, D., Lynch, J.P. (2007). “Addressing the Challenge of Costs and Error in Victimization Surveys: The Potential of New Technologies and Methods”, in: Hough, M., Maxfield, M. (eds), Surveying Crime in the twenty-first Century, Crime Prevention Studies, 22, p. 281–301.

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March 15, 2001 and the extensive 2006 Council of Europe Recommendation Rec (2006)8 on assistance to crime victims. The latter proclaims in Article 3 that states should identify and support measures to alleviate the negative effects of crime, and make sure victims are assisted in all aspects of their rehabilitation in the community, at home and in the workplace. Article 5 subsequently stipulates: “States should provide or promote dedicated services for the support of victims and encourage the work of non governmental organisations in assisting victims.” In listing the minimum standards for these services, the Recommendation makes clear that the dedicated services should be easily accessible (Article 5.2.). An observation at this point would be that given the new opportunities the Internet offers for easy, broad and low-threshold accessibility of services, states are at a minimum required to seriously consider the pros and cons of the new means. Another of the minimum standards highlighted in the Recommendation is that they are fully competent to deal with the problems faced by the victims they serve. It needs no further explanation that with the advent of new technologies, states are required to put effort in studying the effect of digital tools for both the position and needs of victims as well as the work of victim support organizations. Given that the Recommendation works with terms that require tailored assistance (relevant information, special services, special measures, effective recognition of victim’s rights) the conclusion must be that states must put effort in exploring services, measures, etc. tailored to the new realities of the digital world. To this the observation can be added that the Recommendation draws explicit attention to situations where victims are vulnerable to secondary victimization, and it requires States to ensure that victims who are particularly vulnerable, either through their personal characteristics or through the circumstances of the crime, can benefit from special measures best suited to their situation. The specific characteristics of e-crimes described above may thus force states to put more effort in considering measures such as prevention, security and awareness campaigns or free availability of certain filtering facilities. A glance at the 2001 EU Framework Decision on the Standing of Victims in Criminal Proceedings shows that several of the established rights in this document pose interesting challenges for Member States as well. Article 8 (1) reads: “Each Member State shall ensure a suitable level of protection for victims and, where appropriate, their families or persons in a similar position, particularly as regards their safety and protection of their privacy, where the competent authorities consider that there is a serious risk of reprisals or firm evidence of serious intent to intrude upon their privacy.” Given the new vulnerabilities related to the (invisible) tracking and tracing of victims, it is clear that Member States are required to at least consider effects and possible measures. One such measure could be to put more effort in informing and warning victims, counselors and other parties involved in assisting victims about the possible dangers of new technologies. Illustrative here is the earlier-mentioned initiative of the Pennsylvia Commission on Crime and Delinquency to warn on the hidden GPS-devices. A final example here relates to the provision on training for personnel involved in court proceedings or otherwise in contact with victims. The EU Framework Decision requires Member States to encourage through its public services or by funding victim support

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organizations, suitable training with particular reference to the needs of vulnerable groups. Taking this requirement seriously would mean that learning programs start including tools and skills to know about specific risks of new technologies as well try the management of these risks. Also, more knowledge could become available on the use of digital tools to support victims and efforts could be put into the possible standardization of certain digital tools.

9.5 Conclusion In his book The Control Revolution Andrew L. Shapiro argued 10 years ago that in the Internet age the power of institutions is shifting to individuals.47 Dissidents use the Net to get round the censorship rules imposed on them. Consumers do not care about traditional intermediary institutions and buy, sell and download products and services in a matter of minutes with a single click of the mouse. School students influence politics and policy decisions simply by using the network potential of the online world. As we have seen in this chapter, the position of victims of crime, a party that is traditionally regarded as weak, appears another illustration of changing positions in the information society. Technological advances may strengthen their position in many different ways. However, digital tools also create serious new risks for victims, weakening their position and leaving them vulnerable to repeated victimization. In other words, technological advances have made victims both stronger and weaker. They are stronger as a result of features such as organization, self-help and social interaction. In terms of threats to privacy, repeated victimization as well as uncertainty about future effects of e-crime, they have become weaker. The hybrid character of digital tools makes it therefore difficult to draw a solid conclusion at the end of this chapter. Also, e-crime being a young phenomenon, specific information on how new technologies may advance the position and well-being of victims is lacking. The same applies to quantitative empirical research on the factors underlying victimization in an online environment. We do not know yet what factors explain for higher or lower chances of becoming a victim of online crimes. Lifestyle (gaming), exposure and dangerous behavior (virtual communities, personalized services) and routine activities (online payment) could be important determinants of victimization risks. More thought and sound empirical data must be brought to bear on opportunities as well as risks and vulnerabilities related to new technologies. One thing, however, is clear. The discussed developments do imply that the established victims’ rights need to be rethought, reconsidered and perhaps even reinterpreted in light of technological advances. This again requires governments as well as victims’ rights organizations to take up their responsibility in facilitating and promoting these rights according to today’s realities.

47 Shapiro, A.L. (1999). The Control Revolution. How the Internet is Putting Individuals in Charge and Changing the World We Know, New York, Century Foundation.

Part IV

Victims of Conflicts and Wars

Chapter 10

Al Qaeda and Vicarious Victims: Victimological Insights into Globalized Terrorism Antony Pemberton

10.1 Introduction Due to the unprecedented scale of victimization in the terrorist attacks of the 11th of September 2001, the scope of policies concerning terrorism at the international level has been broadened to include victims of terrorism.1 International bodies, such as the United Nations, the European Union, the Council of Europe and the Organization for Security and Co-Operation in Europe, have developed or are in the process of developing instruments and policies that include the plight of victims of terrorism. This attention in the international legal sphere has been matched by a flurry of social scientific research into victimization by terrorism.2 Although the additional attention should be welcomed, both the scope of the international legal instruments and the focus of the social scientific research may have the unintended consequence of limiting insights derived from the study of victims of terrorism. The following observations are relevant to the argument developed in this paper. 1. The development of the legal instruments specifically concerning victims of terrorism entails the risk of essentializing victimization by terrorism. Terrorism is not a singular phenomenon. A large variety of behavior may be classified as terrorism, as is clear from the common elements in definitions of terrorist acts3 : A. Pemberton (B) Senior researcher and research coordinator at INTERVICT, Tilburg University, PO Box 90153, 5000 LE Tilburg, The Netherlands e-mail: [email protected] 1 See

Letschert, 2010, for a discussion of this development. Letschert (2010). ‘International Activities focusing Specifically on Victims of Terrorism’, in: Letschert, R.M., Staiger, I., Pemberton, A. & Ammerlaan, V.C. (eds.), Victims of Terrorism, Springer. 2 See Pemberton, 2010, for an overview: A. Pemberton (2010). ‘The Needs of Victims of Terrorism’, in: Letschert, R.M., Staiger, I., Pemberton, A. & Ammerlaan, V.C. (eds.), Victims of Terrorism, Springer. 3 Letschert, R.M. & Staiger, I. (2010). ‘Defining Terrorism and its Victims’, in: Letschert, R.M., Staiger, I., Pemberton, A. & Ammerlaan, V.C. (eds.), Victims of Terrorism, Springer.

233 R. Letschert, J. van Dijk (eds.), The New Faces of Victimhood, Studies in Global C Springer Science+Business Media B.V. 2011 Justice 8, DOI 10.1007/978-90-481-9020-1_10, 

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– the intention of the act is to cause death or serious bodily harm and/or damage to public or private property; and – the targets are often randomly selected persons, in particular civilians and noncombatants; and – the purpose of such an act is to intimidate a population (or a specific segment within the population), or to compel a government or an international organization to do or to abstain from doing any act or to attempt to destabilize governments or societies. Most acts that are classified as terrorism only inflict small-scale property damage and are related to highly localized concerns.4 These acts are different in many ways from the catastrophic examples of mass victimization, which are the driving force behind the international effort to combat terrorism.5 The common denominator of these acts is then solely the fact that they are both seen to be terrorism, while neither the acts themselves nor the experience of victimization by them have much in common. This is related to an additional aspect of essentialism. It is highly questionable whether the mere fact that an act is classified as terrorism has specific consequences for its victims. The idea that the supposed incomprehensibility for victims of any terrorist act would have additional effects compared to similar criminal acts without the aspect of terrorism is often asserted, but has yet to find empirical support.6 The contention, that victims of terrorism are by definition vulnerable and therefore in need of specialized treatment – as is stated in the EU Framework Decision on combating terrorism – is not borne out by empirical data. The differences, if any, fall well within the realm of the individual response to victimization.7 A suitable level of protection for victims of crime therefore should suffice to meet the needs of most victims of terrorism.8 Similarly the need for additional action at the international level to confront victims of domestic terrorism is questionable.9 4 The

Europol Situation and Trend Report 2007 noted that of the 498 attacks that were carried out in the EU in 2006, the vast majority of them resulted only in limited material damage and were not intended to kill. 5 Many commentators have in fact expressed concern that the anxiety following Al Qaeda’s attacks has been used to implement counter-terrorist policy for relatively unrelated issues, from secession movements to animal right activism. See for example Fekete (2004). ‘Anti-Muslims Racism and the European Security State, Race and Class’, 46, 1, pp. 3–29; Furedi (2004). The Politics of Fear, London, Continuum press. 6 For a review See Pemberton (2010). 7 Winkel, F.W.(1999). ‘Repeat Victimization and Trauma Susceptibility: Prospective and longitudinal analyses’, in: Van Dijk, J.J.M., van Kaam, R.G.H. & Wemmers, J, (eds.), Caring for Crime Victims, Monsey, New York, NY, Criminal Justice Press. 8 See also Albrecht, H.-J. & Kilchling, M. (2007). ‘Victims of Terrorism Policies: Should Victims of Terrorism be Treated Differently?’ European Journal of Criminal Policy and Research, 13, 13–31. 9 This is not meant to imply that counterterrorist efforts against domestic terrorism does not necessitate international cooperation, See f. e. Sandler, T. (2005). ‘Collective Versus Unilateral Responses to Terrorism’, Public Choice, 124, 75–93.

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A review of policies aimed at victims of terrorism within the OCSE region shows that countries, like France or Spain, with a long-standing history of domestic terrorism, have already enacted policies to meet these needs.10 In most of the other OCSE countries the chance of actually suffering civilian fatalities as a consequence of domestic terrorism is negligible.11 The same cannot be said for those victims who are confronted with the experience of mass-victimization attacks. Here additional action in both the legal,12 psycho-social and medical sphere is called for.13 Criminal justice procedures14 and compensation schemes15 do not reckon with the simultaneous influx of hundreds or even thousands of victims of the same act. The large-scale disruption that is inherent in mass-victimization attacks poses additional challenges for the psycho-social and medical efforts to help victims.16 Moreover, the terrorist organizations involved in committing these acts carry out their actions on the global level, implying that even countries without a history of terrorism run a real, but small, risk of having to endure mass-victimization attacks. 2. The development of legal instruments for victims of terrorism may have the unintended consequence of restricting policy attention to those who suffer the direct impact of a terrorist attack. By definition the scope of these instruments is limited. Care is taken to define the meaning of victim. A typical example is the definition of victim within the EU Framework Decision on the Standing of Victims in Criminal Proceedings: “victim” shall mean a natural person who has suffered harm, including physical or mental injury, emotional suffering or economic loss, directly caused by acts or omissions that are in violation of the criminal law of a Member State.17 However, this obscures terrorism’s unique feature, which lies in the fact that in terrorist acts violence is used against direct targets to threaten, frighten and otherwise influence a wider group of indirect or vicarious victims.18 The impact of terrorism 10 See Letschert, R.M. & Pemberton,

A. (2008); Also Letschert, R.M. & Ammerlaan, V.C. (2010).

11 See generally, Mueller, J. (2007). Overblown: How Politicians and the Terrorism Industry Inflate

National Security Threats and we Believe Them, New York, NY, Free Press. 12 See generally Letschert, R.M., Staiger, I., Pemberton, A. & Ammerlaan, V.C. (eds.) (2010). 13 Foa, E.B., Cahill, S.P. & Boscarino, J.A. et al. (2005).‘Social, Psychological, and Psychiatric Interventions Following Terrorist Attacks: Recommendations for Practice and Research’, Neuropsychopharmacology, 30, 1806–1817. 14 See Staiger, I. (2010). 15 Albrecht, H.J. & Kilchling, M. (2005). Victims of Terrorism Policies and Legislation in Europe. An Overview on Victim Related Assistance and Support, Max Planck Institute for Foreign and International Criminal Law. 16 See Foa et al. (2005). Ruzek, J.I., Maguen, S. & Litz, B.T. (2007). ‘Evidence-based Interventions for Survivors of Terrorism’, in: Bongar, B., Brown, L.M., Beutler, L.E., Breckenridge, J.N. & Zimbardo, P.G. (eds.), Psychology of Terrorism, Oxford, Oxford University Press. 17 See Framework Decision on the standing of victims in criminal proceedings (2001/220/JHA). 15 March 2001. 18 Schmid, A. P. (1988). Political Terrorism. A New Guide to Actors, Authors, Concepts, Data Bases, Theories, and Literature. Revised (expanded and updated edition under the auspices of the Center for International Affairs, Harvard University). Amsterdam, North-Holland.

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on these so-called vicarious victims has been the subject of a number of studies into the psychological effects of terrorism, in particular after the 9/11 attacks.19 The general gist of these studies is that mass-victimization terrorist attacks not only intend to cause damage far and beyond the direct victims, but in fact succeed in doing so.20 3. Research (and policy) acknowledging the importance of indirect, vicarious victims of terrorism is slanted. First of all, the main outcomes surveyed are the mental health implications of terrorist attacks, like the subsequent extent of Post Traumatic Stress Disorder (PTSD) in the general population. In this sense it is an example of the type of research that Furedi criticized for being a part of Therapy Culture.21 The definition of victimization in therapeutic terms obscures the fact that also sub-clinical, “normal” emotional reactions to vicarious victimization are relevant.22 Secondly, the emotional reactions surveyed suffer from a victimological stereotype. This stereotype entails defining victims in terms of their level of anxiety.23 This perspective confines the emotional effects to the anxious reaction to the risk of being (re) victimized, rather than the experience of injustice at the victimization already suffered. As anger is the primary emotion relating to experiencing injustice,24 a relevant additional victimological response is related to this emotion.25

19 See

f.e See Cohen-Silver, R., Holman, E.A. & McIntosh, D.E et al. (2002). ‘Nationwide Longitudinal Study of Psychological Responses to September 11’, Journal of the American Medical Association, 288, 10, 1235–1244; Ahern, J., Galea, S., Resnick, H., Kilpatrick, D., Bucuvalas, M. & Gold, J., et al. (2002). ‘Television Images and Psychological Symptoms after the September 11 Terrorist Attacks’, Psychiatry, 65, 289–300; Ahern, J., Galea, S., Resnick, H. & Vlahov, D. (2004). ‘Television Images and Probable Posttraumatic Stress Disorder After September 11 The Role of Background Characteristics, Event Exposures, and Perievent Panic’, Journal of Nervous and Mental Disorder, 192, 217–226; Schuster, M.A. Stein, B.D. & Jaycox, L. H. et al. (2001). ‘A National Survey of Stress Reactions after the September 11, 2001 Terrorist Attacks’, New England Journal of Medicine, 345, 12, 1507. Wayment, H.E. (2004). ‘It Could Have Been Me: Vicarious Victims and Disaster-Focused Distress’, Personality and Social Psychology Bulletin, 30, 515–529; Bernstein, K.T., Ahern, J., Tracy, M., Boscarino, J.A., Vlahov, D. & Galea, S. (2007). ‘Television Watching and the Risk of Incident Probable Posttraumatic Stress Disorder: A Prospective Evaluation’, Journal of Nervous and Mental Disease, 195, 41–47. 20 Gerwehr, S. & Hubbard, K. (2007). ‘What is Terrorism?’, in: Bongar, B., Brown, L.M., Beutler, L.E., Breckenridge, J.N. & Zimbardo, P.G. (eds.), Psychology of Terrorism, Oxford, Oxford University Press. 21 Furedi, F. (2004). Therapy Culture, London, Routledge; see also Horwitz, A.V. & Wakefield, J.C. (2007). The Loss of Sadness. How Psychiatry Transformed Normal Sorrow into a Psychiatric Disorder, Oxford, Oxford University Press. 22 Lerner et al. (2003), Huddy et al. (2005), Skitka et al. (2006). 23 Dijk, J.J.M. van (2006). The Mark of Abel. Inaugural lecture, Tilburg University, Nijmegen, Wolf Legal Publishers; Winkel, F.W. (2007). Posttraumatic Anger. Missing Link in the Wheel of Misfortune. Inaugural Lecture, Tilburg University, Nijmegen, Wolf Legal Publishers. 24 See also Pemberton, Winkel & Groenhuijsen, (2007), Miller, D. T. (2001). ‘Disrespect and the Experience of Injustice’, Annual Review of Psychology, 52, 527–553. 25 Pemberton, A. Winkel, F.W. & Groenhuijsen. M.G. (2007). ‘Taking Victims Seriously in Restorative Justice’, International Perspectives in Victimology, 3, 1, 4–14.

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In fact, anger may well be the more prevalent response to victimization26 and anger at injustice and associated phenomena like retribution and revenge play a pivotal role in the (perceptions of legitimacy of) reactions to victimization experiences.27 This brief outline of the development of legal instruments and social science research specifically focusing on victims of terrorism sets the stage for the remainder of this paper. Instead of discussing the victimology of all types of terrorism, the topic of this paper is the mass-victimization attacks, committed by Al Qaeda. Instead of reviewing the evidence on direct victims of terrorism, the vicarious victims of terrorism are of primary interest. And within this group attention is mainly restricted to angry, retributive reactions to victimization. The main argument is that these anger-related reactions of vicarious victims play an important, maybe even pivotal role in Al Qaeda’s strategy and means of organization.

10.2 Al Qaeda: Globalized Terrorism It is impossible to fully cover the phenomenon of Al Qaeda in the space of one article.28 I will restrict myself to the main features of the organization that are of relevance to the victimological perspective developed in this paper. As a consequence I will forego a discussion of the operations of Al Qaeda in the Middle East,29 and concentrate instead on the mass-victimization attacks on globally dispersed subjects. Although most terrorist activity is still concentrated at the national level, the terrorist attacks committed by Al Qaeda and associated terrorist groups, are linked to globalization in a variety of ways. Various commentators see globalization as a cause of the current wave of terrorist activities.30 Al Qaeda functions without a clear geographical base, with permanent or semi-permanent Al-Qaeda organizations

26 Ditton,

J., Bannister, J., Gilchrist, E. & Farrall, S. (1999). ‘Afraid or Angry? Recalibrating the ‘fear’ of crime. International Review of Victimology’, 6, 83–99; Ditton, J., Farrall, S., Bannister, J., Gilchrist, E. & Pease, K. (1999). ‘Reactions to Victimisation. Why Has Anger Been Ignored?’, Crime Prevention and Community Safety: an International Journal, 1, 3, 37–54. 27 Wenzel, M., Okimoto, T.G., Feather, N.T. & Platow, M.J. (2008). ‘Retributive and Restorative Justice’, Law and Human Behavior, 32, 5, 375–389. 28 See for extensive discussions of this organization: Gunaratna, R. (2003). Inside Al Qaeda, London, Hurst Company; Burke, 2007; Wright, L.W. (2007). The Looming Tower. Al Qaeda’s road to 9/11, London, Penguin Books; Riedel, B. (2008). The Search for Al Qaeda. Its Leadership, Ideology and Future, Washington, DC, Brookings. 29 See for instance: Simon, S. (2008). ‘Will the Surge’s Success Backfire?’, Foreign Affairs, 87, 3, 57–77; Rashid, A. (2008). Descent into Chaos. The U.S. and the Disaster in Pakistan, Afghanistan, and Central Asia, London, Penguin Books. 30 Barber, B.J. (1995). Jihad versus Mcworld. Terrorism’s challenge to democracy, New York, NY, Ballantine Books; Crenshaw, M. (2001). ‘Why America? The Globalization of Civil War’. Current History, 100, 425–432; Cronin, A.K. (2003). ‘Behind the Curve: Globalization and International Terrorism’, International Security, 27, 4, 30–58; Rapoport, D. (2001). ‘The 4th Wave of Terrorism’, Current History, 100, 419–424.

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existing in seventy-five countries across five continents.31 Al Qaeda’s goals are not clearly articulated national, political targets and nationality is not an important factor.32 The choice of Al Qaeda’s targets is informed by the interpenetration through people and capital flows across national borders, which is emblematic of globalization.33 Instead of solely, directly targeting the “near enemy,” like the regimes of Saudi Arabia and Egypt, Al Qaeda has sought to engage the “far enemy,” i.e. the United States, as well.34 Three elements are of particular relevance to the perspective developed in this paper: – The function of religion in Al Qaeda’s activities35 ; – The central role of provocation in Al Qaeda’s strategy36 ; – Al Qaeda’s organizational structure and mode of operation, which have more in common with global civil society movements than with hierarchical, militarystyle terrorist cells.37

10.2.1 Al Qaeda and Islam: Some Controversies The religious nature of Al Qaeda is the subject of much academic and political debate. According to public opinion, but also to a highly influential line of academic scholarship, the Islamic religion is implicated as a cause of the current wave of terrorist attacks.38 Al Qaeda’s actions are regularly framed as a part of the wider Clash of the Civilizations between factions within Islamic countries and the West.39 31 Jordan, J. & Boix, V. (2004). ‘Al Qaeda and Western Islam’, Terrorism and Political Violence, 16, 1, 1–17. 32 Lynch, M. (2005). ‘Transnational Dialogue in an Age of Terror’, Global Society, 19, 1, 5–28; Lynch, M. (2006). Al Qaeda’s Constructivist Turn, Praeger Security International; Jordan & Boix, (2004). 33 Cha, V. D. (2000). ‘Globalisation and the Study of International Security’, Journal of Peace Research, 37, 3, 391–403. 34 Hoffman, B. (2004). ‘The Changing Face of Al Qaeda and the Global War on Terrorism’, Studies in Conflict & Terrorism, 27, 549–560; Burke, (2007); Bergesen, A.J. & Lizardo, O. (2004). ‘International Terrorism and the World System’, Sociological Theory, 22, 1, 38–52; Lynch, (2006). 35 Burke (2007). 36 Kydd & Walter (2006). 37 Jordan & Boix (2004) and Mishal & Rosenthal (2005) and Lynch, (2006) and Sageman, M. (2004). Understanding Terror Networks, Philadelphia, University of Pennsylvania Press. 38 Laqueur, W. (1999). The New Terrorism: Fanaticism and the Arms of Mass Destruction, New York, NY, Oxford, Oxford University Press; Mendelsohn. B. (2005). ‘Sovereignty Under Attack: The International Society Meets the Al Qaeda Network’, Review of International Studies, 31, 45–68. 39 Most famously voiced by: Lewis, B., (1990). ‘The Roots of Muslims Rage’, Atlantic Monthly, 266, 3, 47–60; Huntington. S.J. (1993). ‘The Clash of the Civilizations?’, Foreign Affairs, 72, 3, 22–49.

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Alternatively they may be seen as an Islam-inspired backlash against modernity, democracy and secularism,40 although some care is taken to discern so-called moderate Islam from the distorted version employed by terrorists.41 The general stance is maybe most clearly summarized in a quote from former Israeli Prime Minister Ariel Sharon: “The cultured world is under a cruel attack by radical Islam. It is an enemy composed of lunatic individuals, lunatic regimes and lunatic countries.”42 Al Qaeda’s acts, but also those of organizations like Hamas or Hezbollah, are then often called Islamic terrorism, the terrorism of the jihad era or even “sacred” terrorism.43 Features of Al Qaeda and its mode of operation, like the use of suicide terrorists,44 the intent to cause large numbers of casualties45 and its ultimate, presumed, goal of destroying Western civilization46 are then explained in religious terms and the perpetrators of the terrorist acts are often referred to as religious fanatics.47 However, there is much evidence that suggests that the role of religion as a cause of the actions of Al Qaeda’s terrorists has been much overstated.48 The actions of terrorists are of course extreme; however, this is not matched by radical or intense interest in Islam.49 It is not radical Muslims who join terrorist organizations; their radical stance is better understood as a consequence than a cause of becoming a part of the terrorist organization.50 Suicide terrorism is, contrary to public belief, not a tactic that is restricted to or primarily committed by religiously motivated individuals, with Merari51 concluding that religion is neither a sufficient or a necessary cause of suicide terrorism.52 Similarly, the idea that Al Qaeda terrorists are fanatics who, unrestricted by secular laws, see it fit to slaughter innocent civilians, misunderstands 40 Barber, B.J. (1995). Jihad versus Mcworld. Terrorism’s Challenge to Democracy, New York, NY, Ballantine Books. 41 Takeyh, R. & Gvosdev, N. (2004). ‘Radical Islam: The Death of an Ideology?’, Middle East Policy, 11, 4. 42 Quoted in Held (2004). 43 Rapoport (2001) and Cronin (2003). 44 Sageman (2004). 45 Stern, J. (2003). Terror in the Name of God: Why Religious Militants Kill, New York, NY, Harper Collins. 46 Cook, D. (2003). The Recovery of Radical Islam in the Wake of the Defeat of the Taliban. Terrorism and Political Violence, 15, 1; Takeyh & Gvosdev (2004). 47 See for an overview and critique: Jackson, R. (2007). ‘Constructing Enemies. ‘Islamic’ Terrorism in Academic and Political Discourse’, Government and Opposition, 42, 3, 394–426. 48 Pape, R. (2005). Dying to win. The strategic logic of suicide terrorism, New York, NY, Random House; Merari, A. (2007). ‘Psychological aspects of suicide terrorism’, in: Bongar, B., Brown, L.M., Beutler, L.E., Breckenridge, J.N. & Zimbardo, P.G. (eds.), Psychology of Terrorism, Oxford, Oxford University Press; Sageman (2004) and Burke (2007). 49 Sageman (2004) and Burke (2007). 50 Sageman (2004) 51 Merari, A. (2007). ‘Psychological Aspects of Suicide Terrorism’, in: Bongar, B., Brown, L.M., Beutler, L.E., Breckenridge, J.N. & Zimbardo, P.G. (eds.), Psychology of Terrorism, Oxford, Oxford University Press, Sageman (2004). 52 Pape (2003) and Pape (2005).

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Al Qaeda’s strategy. This, in fact, closely adheres to the type of rationality associated with asymmetric warfare,53 a point I will further develop below. Finally the primary reason for the attacks on targets outside of the Middle-East (the far enemy) is not their non-Islamic identity, but their support for governments in the MiddleEast (like Saudi-Arabia, Egypt and the like, the near enemy) which Al Qaeda wishes to overthrow.54 The misunderstanding of the role of Islamic religion has a number of unfortunate consequences. First of all it leads to the grouping of dissimilar organizations under the same heading. Organizations like Hamas and Hezbollah are mostly regarded as Islamic terrorist organizations, like Al Qaeda. However, Hamas and Hezbollah are quite different. Both Hamas and Hezbollah are typical national “terrorist” organizations, with clear territorial bases and objectives and a highly localized civil support with which they are well-connected.55 The latter factor makes them vulnerable in a fashion that Al Qaeda is not56 and makes them more similar to organizations like the IRA, the ETA or the FARC than to Al Qaeda.57 Both the understanding of, and counter-terrorist effort against Al Qaeda, can be hampered by the misleading grouping with other “Islamic” terrorist organizations. Secondly, the attribution of religious meaning to Al Qaeda’s actions is part of the organization’s strategy. Lynch submits that “granting an essentialistic Islamic quality to Al Qaeda is to grant Bin Laden his biggest victory.” The organization strives to present itself as truly Islamic and as the defender of all Muslims against the attack of Western crusaders. The association of Al Qaeda with Islam then strengthens Al Qaeda’s position within inter-Islamic debates and allows Al Qaeda to further its own peculiar understanding of Islamic religion.58 It also allows Al Qaeda to bring forth the Muslim component of people’s identity to reshape political reality. Jordan and Boix59 note that Al Qaeda’s intention is to bring different cultures into conflict, by dividing the world in good and evil along religious fault lines. Here Bin Laden’s message shows remarkable resemblance to Lewis and Huntington’s Clash of the Civilizations. Religion then serves an important function as a means of communication,60 both to the globally dispersed pockets of potential civil support and the “far enemy,” the governments and people of Western societies, primarily the United States. According to Burke61 , Al Qaeda’s invocation of Islamic religion serves to communicate directly to possible supporters, but also indirectly through

53 Sedgwick, M. (2004). ‘Al-Qaeda and the Nature of Religious Terrorism’, Terrorism and Political

Violence, 16, 4, 795–814. & Walter (2006). 55 Jordan & Boix (2004). 56 Pressman (2007). 57 See Jordan & Boix, (2004). 58 Lynch (2006). 59 See Jordan & Boix (2004). 60 Mishal & Rosenthal (2005). 61 Burke (2007). 54 Kydd

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the agitation of (people in) Western societies. The very real possibility of a backlash against Muslims, which I will discuss below, could enhance support for Al Qaeda by apparently confirming Bin Laden’s message of the attack on Islam. This agitation of Western societies is linked to Al Qaeda’s use of provocation as a rational strategy to achieve its ends. Again the overuse of religious explanations has obscured this more political and rational explanation for Al Qaeda’s strategy. It is to this provocation strategy that I now turn.

10.2.2 Provoking the United States: A Rational Explanation of Al Qaeda Strategy Kydd and Walter62 offer an insightful categorization of terrorist strategies.63 A central notion in their perspective is that, simply put, “terrorism often works.” This is confirmed by Pape’s conclusion that between 1980 and 2003 half of all suicide terrorist campaigns were followed by substantial concessions by the target governments.64 Terrorist strategy is then a rational method to reach goals like regime change or policy change. The shape and focus of terrorist strategy is contingent on the particular characteristics of the two main audiences that Kydd and Walter discern: the enemy government and the population the terrorists propose to represent. Based on this Kydd and Walter suggest that most terrorist organizations use one or more of five possible strategies: attrition, spoiling, intimidation, outbidding and provocation. According to Kydd and Walter Al Qaeda’s strategy includes elements both of an attrition and a provocation strategy. I will forego discussing the other strategies and restrict myself to these. First of all an attrition strategy is designed to signal to the enemy government that the group is strong and resolute enough to inflict serious costs and damages, often over a prolonged period of time, so that the enemy will yield to the terrorist demands.65 This has been the typical strategy of organizations like the IRA. This strategy is also visible within Al Qaeda: the magnitude of the 9/11 attacks and the attacks that preceded and followed it, show its resolve and capability to inflict serious damage. Kydd and Walter show that there are three conditions favorable to attrition. First of all the stake that the enemy government has in the disputed issue is relevant. Enemy governments will not capitulate in situations concerning vital interests. Second, there are the constraints on retaliation. The more constrained an enemy government is in retaliation, the more promising an attrition strategy will be. For this reason Krueger has already shown terrorist activity to be more successful within

62 Kydd

& Walter (2006).

63 See Kydd, A.H. & Walter, B.F. (2006). ‘The Strategies of Terrorism’, International Security, 31,

1, 49–80. (2005). 65 Lapan, H.E. & Sandler, T. (1993). ‘Terrorism and Signalling’, European Journal of Political Economy, 9, 3, 383–398. 64 Pape

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democracies than within authoritarian regimes.66 An authoritarian regime may well resort to brute force in the counter-attack against terrorists and this has happened to Al Qaeda in Saudi Arabia, Egypt and Jordan.67 Similarly and thirdly, the extent to which the enemy government can endure costs are of relevance. Attrition will be more successful against enemies with a low threshold for inflicted costs. Again democracies seem to be less tolerant of costs, particularly casualties and fatalities of the civilian population. Bin Laden has explicitly endorsed an attrition strategy, as he aims to “make America bleed to the point of bankruptcy” and has suggested that the US lacks resolve to fight a long war of attrition.68 However, it is unlikely that attrition is the only or even the most important part of Al Qaeda’s strategy. The geopolitical stake of the United States in the Middle East is simply too large for it to allow Al Qaeda to make serious headway in overcoming its so-called near enemies. Moreover, the possibilities for Al Qaeda to inflict sufficiently large damage on the United States to indeed “bleed America to the point of bankruptcy” are small if not negligible. According to Krueger69 the direct shortterm effects of 9/11, the largest terrorist attack in history, amounted to no more than a loss of 1.5% of GDP, while the longer-term effects should expected to be little more than zero.70 Instead Al Qaeda seems to have banked on a retaliatory US reaction that would be costly to the United States and, although potentially risky for the organization itself, beneficial in terms of support throughout the Muslim world.71 The most important part of Al Qaeda strategy, in particular concerning 9/11, is provocation. In Kydd and Walter’s words, a provocation strategy aims to goad the enemy government into an overreaction that harms civilians within their home territory and thereby makes them more supportive of the terrorist organization.72 The disastrous and misplaced overreaction of the United States government in Iraq73 can be considered to be a textbook example of the result of a successful provocation strategy. It has done more to further Al Qaeda’s cause than anything the organization could have undertaken itself74 , in particular with regard to the notion that Islam is under attack

66 See

Krueger, A.B. (2007). What Makes a Terrorist: Economics and the Roots of Terrorism, Princeton, NJ, Princeton University Press. 67 Riedel, B. (2007). ‘Al Qaeda Strikes Back’, Foreign Affairs, 86, 3, 24–40. 68 See Bin Laden, O. (2005). Messages to the World, London, Verso Books. 69 Krueger (2007) and See also Bloom (2006). 70 Krueger, A.B. (2007). 71 See Louis, W.R. & Taylor, D.M. (2002). ‘Understanding the September 11 Attack on America: The Role of Intergroup Theories on Normative Influence’, Analysis of Social Issues and Public Policy, 2, 1, 87–100. 72 See already Fromkin, D. (1975). ‘The Strategy of Terrorism’. Foreign Affairs, 53, 4, 683–698. 73 Well summarized in the title of: Ricks, T.E. (2006). Fiasco. The American Military Adventure in Iraq, London, Penguin Books. 74 See Woodward (2004) and in fact Bin Laden (2005).

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from Western countries. The cost to the US government has been unprecedented75 and has increased support for Al Qaeda’s cause across the Muslim world.76 Again the level of constraints on retaliation is important in the choice for a provocation strategy. As Kydd and Walter state “the government must be capable of middle levels of brutality.”77 Governments that are willing to undertake genocidal campaigns would be poor targets for provocation, as they may well decide to wipe out the terrorist organization and possible supporters. At the other end of the spectrum governments overtly committed to human rights and rule of law are unlikely to be provoked. The Bush administration fit the bill perfectly in September 2001. The United States government has never been gun-shy,78 but the Bush administration was particularly hawkish in its foreign policy and in its attitude to the use of military power. However, any US government would have found it difficult to refrain from a severe reaction to the 9/11 attacks. A more discriminating response, targeting only those more or less directly involved, was not available to the US government. Sufficient intelligence on Al Qaeda was lacking,79 but equally important was the extreme nature of the attacks and the large sense of injustice associated with them, at the very least from the perspective of the victimized population of the United States. Here a relevant parallel may be drawn with the theorizing on just wars.80 Held (2004) shows that it is fruitful to view terrorist actions on a continuum, between more and less unjust.81 Amongst others she notes that in just wars unintended damage is minimized, only those actors are targeted who are directly responsible for the enemy’s actions and that war is used as a last resort, after other more peaceful means have failed. Moreover, just wars are declared by legitimate representatives of the people and are directed at targets that have harmful intentions. While a case could be made that terrorism is inherently unjust, it is apparent that Al Qaeda’s mode of operation is unjust even compared to other terrorist actions.82 And this sense of injustice necessitated a severe retributive response from the US government, not in the last part because of the support of the US electorate for this type of action.83 As President George W. Bush stated “justice demands that those who helped or harbored (sic) the terrorists be punished. The enormity of their evil demands it.”84 75 See

Stiglitz, J.E. & Bilmes, L.J. (2008). The Three Trillion Dollar War: The True Cost of the Iraq Conflict, New York, NY, Norton and Company. 76 Riedel (2007). 77 Kydd & Walter (2006). 78 See f.e. Kinzer, S. (2006). Overthrow. America’s Century of Regime Change, from Hawaii to Iraq, New York, NY, Times Books. 79 See f.e. Cronin (2003). 80 For example Walzer, M. (2003). Just and Unjust Wars, 3rd edition, New York, NY, Basic Books. 81 Held, V. (2004). ‘Terrorism and War’, The Journal of Ethics, 8, 59–75. 82 See Held (2004). 83 See De Mesquita, B. (2007). ‘Politics and the Suboptimal Provision of Counter Terror’, International Organisation, 61, 1, 9–36. 84 See Bush (2001) and quoted in Camins (2003).

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The retributive response is not restricted to the governments of the US and the rest of the Western world but also directly applies to the population of Western countries,85 which in turn negatively effects Muslims living in these societies.86 The process through which this occurs – vicarious retribution87 – and its consequences will be discussed at more length below. For now it is sufficient to understand that the interplay between Al Qaeda’s message of Islam being under attack, the overreaction of the United States government in the Middle-East and the retributive response of inhabitants of Western societies towards their Muslim minorities has led to an increase in global civil support for Al Qaeda amongst Muslims. Moreover, the combination of the heightened animosity between Muslims and non-Muslims in Western society and the explanation offered for this by both Al Qaeda itself and hawkish Western politicians and academics – summarized in the Clash of the Civilizations-perspective – play a central role in the self-perpetuating, organic organizational structure that has come to define Al Qaeda’s mode of operation.

10.2.3 Al Qaeda 2.0: The Dune Organization As Jason Burke shows in his in-depth survey of Al Qaeda’s activities, the organization has developed through three phases, all related to different meanings of the phrase Al Qaeda.88 The first meaning, the vanguard, defines the perception of Al Qaeda operatives in the period 1989 through 1996, where they saw themselves as enlightening and leading the masses into victory against the enemy, here still predominantly the governments of Saudi Arabia and Egypt. The second meaning, the base, describes Al Qaeda during the regime of the Taliban in Afghanistan, where Al Qaeda had an unprecedented infrastructure (“a base”) for carrying out its military and terrorist operations. This infrastructure has been largely destroyed in the post 9/11 war in Afghanistan. In the current phase, from 2001 onwards, al Qaeda is no longer a vanguard or a base, but a maxim, a rule, a precept, a way of seeing the world. As Burke states: “You are a member of Al Qaeda, if you say you are.” Some commentators extend this to suggest that Al Qaeda has ceased to be an organization in a literal sense and has now become an “idea moving across borders.”89 This is partly an overstatement. Within the Middle East, and particularly

85 Skitka,

L.J., Bauman, C.W., Aramovich, N.P. & Scott-Morgan, G. (2006). ‘Confrontational and Preventative Policy Responses to Terrorism: Anger Wants a Fight and Fear wants “Them” to Go Away’, Basic and Applied Psychology, 28, 4, 375–384. 86 See Sherridan, L. (2006). ‘Islamophobia Pre and Post 11th September 2001’, Journal of Interpersonal Violence, 21, 3, 317–336. 87 See Lickel, B. Miller, N. & Stenstrom, D.M. et al. (2006). ‘Vicarious Retribution: The Role of Collective Blame in Intergroup Aggression’, Personality and Social Psychology Review, 10, 372–390. 88 Burke (2007). 89 Adel (2004) and Lynch (2006).

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within Afghanistan, Pakistan and Iraq, Al Qaeda still functions as an organization in the traditional sense, with its central leadership highly involved in the planning of high-impact plots.90 However, outside the Middle East, terrorism identified as “Al Qaeda” is more often than not carried out by independent groups inspired by Al Qaeda’s message and actions, rather than by a centrally directed organization. Mishal and Rosenthal have dubbed Al Qaeda the Dune Organization in that it resembles the dunes in the desert in their unpredictable and random movement and emergence.91 Mishal and Rosenthal show Al Qaeda to be extremely flexible in its actions, lacking affiliation with any explicit territorial rationale; no overt institutional presence and command and communication chains that may be waived, fragmented or severed at any time. Bin Laden’s grand vision is the main mode of organization. Similarly, others have likened Al Qaeda’s organizational structure to an open-source mechanism, with Bergen coining the term Al Qaeda 2.0.92 Al Qaeda is be similar to say Linux in the absence of a hierarchical structure, the decentralized organization and the possibilities for self-initiative. The Internet and other global means of communication play a pivotal role in the flexibility of Al Qaeda. It could be conjectured that an organization functioning like Al Qaeda is only possible in the web-based era, with the Internet playing a pivotal role in the communication of Al Qaeda’s message and the possibilities it offers for potential “home-grown” terrorists to copy Al Qaeda’s modes of executing terrorist acts without ever coming in direct contact with members of the organization.93 But it is not only the communication by Al Qaeda itself that is a driving force in keeping the organization vital. In the next section I shall develop the argument that it is also the reaction of the victimized populations themselves to Muslims that live within Western society that serves to perpetuate Al Qaeda as a virtual organization.

10.3 Vicarious Victims and Retribution 10.3.1 Acknowledging the Vicarious Dimension of Terrorism The fact that terrorists use violence against direct targets to threaten, frighten and otherwise influence a wider group of indirect or vicarious victims, implies that the audience of the crime transcends the direct victims.94 This has been particularly evident in the aftermath of Al Qaeda’s mass-victimization attacks. After 9/11 between 7.5 and 11% of the inhabitants of New York developed Post Traumatic 90 See

Riedel (2007) and Hoffman (2008). & Rosenthal (2005). 92 Bergen (2002) and Caruso & Locatelli (2007). 93 For example Leiken, R. (2005). ‘Europe’s Angry Muslims’. Foreign Affairs. 84, 4, 120–127. 94 Schmid (1988). 91 Mishal

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Stress Disorder (PTSD). Although the chances of developing PTSD are related to exposure level, with those directly exposed, i.e. being either directly victimized or witnessing the attack, having much elevated levels of PTSD compared to those only indirectly exposed,95 the latter nevertheless showed increased levels of PTSD as a consequence of 9/11. Across the United States people not present on-site or with a direct relationship to direct victims showed stress reactions to the attack.96 Galea, Vlahov and colleagues expanded their initial survey to the five boroughs of NYC and the New York metropolitan area.97 Their results show that, in absolute terms, the number of indirectly exposed New Yorkers that developed PTSD as a result of the attacks equaled the numbers that were directly exposed. Similar results were shown in Madrid. Miguel-Tobal and colleagues show that the net burden of psychopathology in the aftermath of a terrorist event in a densely populated urban area may be as high among persons who are not directly affected by the disaster as amongst those who are.98 The increased levels of fear in the general public may result in various other behavioral reactions, from lower levels of tourist activity,99 to decreased use of public transport systems,100 and the occurrence of “worrying well,” the phenomenon that people unexposed to chemical/biological agents present with symptoms resembling exposure. An example is the Anthrax scare in 2001 and 2002.101

10.3.2 The Importance of Anger as a Reaction to Terrorism Anger is a common reaction to injustice,102 and thereby to victimization.103 Although most research into victims’ emotions concentrates on anxiety and fear, anger may be, at least in prevalence, the more important emotion. In the instances in which anger has been included in victimological research, more victims said they were angry than frightened due to their victimization.104 Anger was also the most 95 See

Galea et al. (2002). Schuster et al. (2001). 97 Galea, S., Vlahov, D., Resnick, H., Ahern, J., Susser, E. & Gold, J., et al. (2003). ‘Trends of Probable Post-Traumatic Stress Disorder in New York City After the September 11 Terrorist Attacks’, American Journal of Epidemiology, 158, 514–524. 98 Miguel-Tobal et al. (2006). 99 See Frey et al. (2007). 100 See Gigerenzer, G. (2004). ‘Dread Risk, September 11, and Fatal Traffic Accidents’. Psychological Science, 15, 286–287; Gigerenzer, G. (2006). ‘Out of the Frying Pan into the Fire: Behavioral Reactions to Terrorist Attacks’, Risk Analysis, 26, 2, 347–351. 101 Hyams, K.C. Murphy, F.M. & Wessely, S. (2002). ‘Responding to Chemical, Biological, or Nuclear Terrorism: The Indirect and Long-Term Health Effects May Present the Greatest Challenge’, Journal of Health Politics, Policy, and Law, 27, 273–91. 102 For a review See Miller (2001). 103 Winkel (2007). 104 For example Ditton, J., Bannister, J., Gilchrist, E. & Farrall, S. (1999). ‘Afraid or Angry? Recalibrating the ‘Fear’ of Crime’, International Review of Victimology, 6, 83–99; Ditton, J., 96 See

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prevalent reaction of the American public to 9/11. According to Smith et al., 65% of Americans and 73% of New Yorkers reported being angry in the aftermath of the attacks on the World Trade Center and the Pentagon.105 A year later anger was still the most prevalent reaction, although percentages dropped to 43 and 42% respectively.106 Anger, however, is not always acknowledged as an important reaction to terrorism. Most definitions of terrorism explicitly emphasize the public’s fear or associated processes, like intimidation, but not anger.107 Including anger is important for a variety of reasons. Apart from the more general connection of anger to retribution,108 people with a heightened sense of anger after terrorism are more supportive of going to war.109 Lerner and Keltner show that anger is related to a more optimistic assessment of risks, while fear is associated with more pessimistic appraisals. In addition, anger rather than fear appears to be related to more optimistic accounts of the country’s relative military capability.110 This assessment influences preferred government action in the aftermath of terrorism. Skitka et al. make this apparent in the title of their article “Anger wants a fight. Fear wants ‘Them’ to go away.”111 And although reducing fear in the population may well coincide with reducing anger, preferred policies for fear and anxiety reduction may well have the unintended consequence of stimulating angry reactions.112 The previous discussion of Al Qaeda’s provocation strategy makes anger and retribution even more relevant. We have already seen that Al Qaeda’s terrorist acts were successful in provoking the United States into a war in Iraq, which has done

Farrall, S., Bannister, J., Gilchrist, E. & Pease, K. (1999). ‘Reactions to Victimisation. Why Has Anger Been Ignored?’, Crime Prevention and community safety: an international journal, 1, 3, pp. 37-54. 105 Smith, T.W., Rasinski, K.A. & Toce, M. (2001). America Rebounds. A national study of public Response to the September 11th Terrorist Attacks. Chicago, NORC. 106 See Rasinksi, K.A. Berktold, J. & Smith, T.W. et al. (2002). America Recovers, Chicago, NORC. 107 See Letschert & Staiger (2010). 108 Vidmar, N. (2001). ‘Retribution and Revenge’, in: Sanders, J. & Hamilton, V.L. (eds.), Handbook of Justice Research in Law, Kluwer Academic/Plenum Publishers; Miller (2001). 109 See Skitka, L. J., Bauman, C. W., Mullen, E. (2004). ‘Political Tolerance and Coming to Psychological Closure Following September 11, 2001, Terrorist attacks: An Integrative Approach’, Personality and Social Psychology Bulletin, 30, 743–756. 110 Lerner, J. S. & Keltner, D. (2001). ‘Fear, Anger, and Risk’, Journal of Personality and Social Psychology, 81, 146–159; See also Lerner, J. S., Gonzalez, R. M., Small, D.A. & Fischhoff, B. (2003). ‘Effects of Fear and Anger on Perceived Risks of Terrorism: A National Field Experiment’, Psychological Science, 14, 144–150. 111 Skitka, L.J., Bauman, C.W., Aramovich, N.P. & Scott-Morgan, G. (2006). Confrontational and Preventative Policy Responses to Terrorism: Anger Wants a Fight and Fear Wants “Them” to Go Away, Basic and Applied Psychology, 28, 4, 375–384; Huddy, L Feldman, S. & Cassese, E. (2007). ‘On the Distinct Political Effects of Anxiety and Anger’, in: Crigler, A et al. (ed.). The Political Dynamics of Feeling and Thinking, University of Chicago Press. 112 See more extensively Pemberton (2010).

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much to further Al Qaeda’s position. The following discussion of the process of vicarious retribution will show that Al Qaeda’s provocation strategy also implicates the relationships between non-Muslims and Muslims living in Western countries.

10.3.3 Vicarious Retribution In a recent review article Lickel and colleagues describe the phenomenon of vicarious retribution.113 This refers to the situation where a member of a group commits an act of aggression toward members of an outgroup for an assault or provocation that had no personal consequences for him or her and was not personally committed by that member of the outgroup. The concept of vicarious retribution is relevant for the understanding of escalation and spreading of conflict and intergenerational and intractable rights. In the context of Al Qaeda’s acts it is an important explanation of the support for war in the Middle East and the increased hostility towards Muslim inhabitants of Western countries. Lickel and colleagues model vicarious retribution as a chain of four cognitiveaffective processes. First is the initial event construal. In this the vicarious victim considers what has happened, whether it is relevant for him or her, and who is to blame for what happened. First of all the event has to be construed as the act of an outgroup member toward an ingroup member. This entails applying possible outgroup-ingroup relationships to the event. Where there is a pattern of ongoing violence, like in Israel and Palestine, this division will have gained chronic salience. But also when this pattern is lacking people may construe the event along group lines. This is dependent on the context (i.e. white versus black crime) or on the nature of the incident. The latter is the case when the act of violence is directed against an iconic figure of the ingroup, like the US flag or the White House. Of relevance is furthermore the intention of the person who committed the act. If prior experiences or expectancies are linked to intergroup hostility, it is likely the act will be construed along these lines. Of course this is even more evident when the intergroup connection is either stated or directly related to the act. Finally the vicarious victim may question whether the ingroup has in some way provoked the outgroup aggression and whether this provocation may be sufficient justification for the outgroup reaction. All of this is evidenced in the attacks by Al Qaeda in Europe and the United States. Most of its actions target iconic, large urban infrastructures and are mostly accompanied by communication concerning their intentions; in addition, previous experiences with this terrorist organization will suggest the relevance of the intergroup context. Moreover, as the research into terror management theory reveals, large-scale incidents with sufficient reminders of death automatically highlight cultural faultlines and thereby increase the possibility that events will be construed 113 Lickel, B. Miller, N. & Stenstrom, D.M. et al. (2006). ‘Vicarious Retribution: The Role of Collective Blame in Intergroup Aggression’, Personality and Social Psychology Review, 10, 372–390.

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along the lines of group identification.114 The magnitude of the attacks in itself then serves the purpose of deepening cultural divides. Moreover, the methods employed by Al Qaeda prevent the targeted population from primarily attributing them to the ingroup’s own actions. Even in the attacks on Madrid and London in which large parts of the British and Spanish population saw the attacks as a reaction to the Iraq war, Al Qaeda’s mode of operation left little room for justification. Instead the organization seems adamant to be seen as evil in the eyes of Western populations.115 The second step in the Lickel et al. model is ingroup identification, which is linked to anger and aggressive tendencies after harm to ingroup members. Feelings of group pride and group member empathy, with emphasis placed on the common humanity of group members strengthen the links with the direct ingroup victims.116 These processes coincide with two linked tendencies that support retaliation against outgroup members. First of all the chances of being punished by ingroup members after retaliation are small. Second, those who do not retaliate or even sympathize with the outgroup may be considered deviant. The reactions to the Al Qaeda attacks of 9/11 are clear examples of both processes. Both patriotism and nationalism received a boost after the attacks,117 and dissent was not tolerated.118 Third, a process of outgroup entitativity takes place. Entitativity refers to the perception that a group is a united and coherent whole. The higher outgroup entitativity is perceived to be, the more likely it is that any member of the outgroup will be blamed for the event. Suicide terrorism poses an additional opportunity for this process. As the perpetrator is no longer available to be punished, others like him may instead be blamed. According to Lickel et al. outgroup entitativity proceeds by a process of infra-humanization.119 In the perception of the ingroup, outgroup members “lose” secondary human emotions (guilt, love, admiration, etc.) and are left with primary, not-exclusively human emotions. This process leaves the outgroup at once more similar (similar lack of emotions) and more cohesive as the

114 See Pyszczynski,

T., Solomon, S. & Greenberg, J. (2003). In the Wake of 9/11: The psychology of Terror, Washington, DC, APA. 115 Compare Baumeister, R. (1997). Evil: Inside Human Cruelty, New York, NY, Henry Holt. Discussion of The Myth of Pure evil with Al Qaeda’s mode of operation and communication with the West. On all counts Al Qaeda meets the criteria for Pure Evil, and this may be a conscious attempt to be seen as such. 116 See Yzerbyt, V., Corneille, O. & Estrada, C. (2001). ‘The Interplay of Subjective Essentialism and Entitativity in the Formation of Stereotypes’, Personality and Social Psychology Review, 15, 5, 141; Demoulin, S., Leyens, J. Ph., Paladino, M. P., Rodriguez, R. T., Rodriguez, A. P. & Dovidio, J. F. (2004). ‘Dimensions of “Uniquely” and “Non-Uniquely” Human Emotions’. Cognition and Emotion, 18, 71–96. 117 Hetherington, M.J. & Nelson, M. (2003). ‘Anatomy of a Rally Effect: George W. Bush and the War on Terrorism’, PS: Political Science and Politics, 37–42. 118 Landau, M. J. Solomon. S. & Greenberg. J. et al. (2004). ‘Deliver Us from Evil: The Effects of Mortality Salience and Reminders of 9/11 on Support for President George W. Bush’, Personality and Social Psychology Bulletin, 30, 9, 1136–1150. 119 See also Haslam, N. (2006). ‘Dehumanization: An Integrative Review’, Personality and Social Psychology Review, 10, 3, 252–264.

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primary emotions left allow attribution of a similar sense of purpose to the outgroup. Where the ingroup is seen as more commonly human, the outgroup is seen as less human. In addition, entitativity is accompanied with causal inferences about commission (the other outgroup members helped commit the act) and omission (where they did not offer direct support they did nothing to prevent it from happening).120 Finally these heuristics are linked to dispositional inferences about the outgroup members. “Fundamentalist Muslims are always angry” is a relevant example. The causal connection of Al Qaeda to Islam and the associated lines of thought are not only examples of the phenomenon of outgroup entitativity, but infact form an extreme case. Here the assessment is not only made by individuals or groups of vicarious victims, but also by a highly influential group of academics and policymakers.121 Moreover, as Jackson122 shows, it draws on a long tradition of cultural stereotypes and deeply hostile media representations and depictions of Islam and Muslims.123 This leads, in the final step, to vicarious retribution in which ingroup members retaliate against outgroup members who were not personally responsible for the actions that led to the initial event. We have already seen that the US government responded to Al Qaeda’s acts by waging war against an unrelated country (Iraq). Most of the hundreds of thousands of people who have died in Iraq, suffered the consequences of vicarious retribution. There is also increasing evidence of hostility towards Muslims in the West. In the direct aftermath of 9/11 there were various instances of anti-Muslim attacks.124 After 9/11 the general opinion in the US towards immigrants and immigration took a downward turn.125 Furthermore, members of minority groups have been the target of retaliation and are regularly called upon to explain terrorist behavior and even apologize.126 Across Europe and particularly in the United Kingdom Islamophobia has increased since the Al Qaeda attacks. A study by Sherridan in a sample of British Muslims showed a 83% increase in perceived implicit discrimination and a 76% increase in overt discrimination.127

120 See

Lickel, B., Schmader, T. & Hamilton, D. L. (2003). ‘A Case of Collective Responsibility: Who Else Was to Blame for the Columbine High School Shootings?’, Personality and Social Psychology Bulletin, 29, 194–204. 121 Like Lewis (1990) and Huntington (1993). 122 Jackson (2007). 123 See also Poole, E. & Richardson, J. (2006). Muslims and the News Media, London, I.B. Tauris. 124 See Pyszczynski et al. (2003). 125 See Esses, V. M., Dovidio, J. F. & Hodson, G. (2002). ‘Public Attitudes Toward Immigration in the United States and Canada in response to the 11 September, 2001 ‘Attack on America’’, Analyses of Social Issues and Public Policy, 2, 1, 69–85. 126 See also the report ‘Policies on Integration and Diversity in some OSCE Participating States’ – An Explanatory Study, prepared by the Migration Policy Group, regarding all countries, the conclusion was drawn that the “war on terror” mainly affected Muslim immigrants, problematising their ability to integrate into liberal Western societies. 127 Sherridan (2006).

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Allen and Nielsen128 show increases in experienced hostility in particular for those easily identifiable as Muslims. The results from the studies into the London 7 July bombings show being a Muslim to be a strong indicator of substantial stress in a survey of the general public.129 In sum: the process of vicarious retribution is clearly visible after the Al Qaeda attacks and has had real effects for the Muslim population of Western countries. It is not hard to fathom that the effects of vicarious retribution can enhance support for Al Qaeda in the Muslim population living in the West. As Louis and Taylor already noted in the direct aftermath of 9/11 “the victimization of non-terrorist Muslims may lead moderate Muslims to the perception that the terrorists were correct in their perception that America and the West constitute implacable enemies of Islam.”130 Western reactions, both governmental and by the populations themselves, go a long way to provide a retrospective justification for Al Qaeda’s attacks. Moreover, they offer the organization pockets of support and potential recruits that were not previously available.

10.4 Conclusion The main argument of this chapter is that victimological reactions to the terrorist attacks committed by Al Qaeda play an important role in its strategy and organization. Where attention to victims of terrorism tends to be restricted to the anxious reactions of direct victims, this chapter has shown angry reactions of those only indirectly harmed by terrorist activities, the so-called vicarious victims, to be of interest. The most important component of Al Qaeda’s strategy is provocation. The massvictimization attacks on civilians in Western countries are designed to provoke a severe retributive response, which harms civilians and thereby increases support for the organization. It is clear that the US-led war in Iraq is a perfect example of the result of successful provocation. Not only the US and other Western governments have been provoked. This response is visible in the inhabitants of Western countries as well. The scale and method of Al Qaeda’s attacks implicated a large number of vicarious victims across Western societies. These vicarious victims were not necessarily anxious or afraid after Al Qaeda’s attacks, with most victims displaying anger at the attacks rather than fear for future attacks. Through the association of anger with retribution and the process of vicarious retribution, this has led to increased discrimination of and hostility against Muslims living in Western societies.

128 Allen

& Nielsen (2002). G.J., Brewin, C.R. & Greenberg, N. et al. (2005). ‘Psychological and Behavioural Reactions to the Bombings in London on 7 July 2005: Cross Sectional Survey of a Representative Sample of Londoners’, British Medical Journal, BMJ, doi:10.1136/bmj.38583.728484.3A. 130 Louis & Taylor (2002). 129 Rubin,

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Both the retributive tendencies of Western governments and that of the inhabitants of Western societies contribute to the capability of Al Qaeda to maintain a global presence, without the necessity of direct but fragile links with all those working under its banner. Al Qaeda uses technologies associated with globalization, like the Internet and satellite television, to get its message across to disperse pockets of support all over the world and to provide guidance and instruments for terrorist activity. But these activities are highly augmented by the fact that Muslims living in the West can see supporting evidence for Bin Laden’s message of the attack on Islam every time they turn on television or open a newspaper. Many experience discrimination due to their Islamic identity on a regular basis. The combination of its own use of communication technology and the reaction of its enemies have enabled Al Qaeda to become a virtual organization on a global scale, an “idea moving across borders” in addition to its “real” organizational presence in the Middle East. It bears noting that the (over) use of religion as a causal explanation for Al Qaeda’s activities is a necessary condition for Al Qaeda’s strategy and organization. The implication of a religious divide between Muslims and others in Al Qaeda’s acts, summarized in the perspective of the Clash of the Civilizations and similar theories, signifies the fault line through which vicarious victims should evaluate intergroup hostility and eventually the targets for their retributive response. This may turn out to be a self-fulfilling prophecy, with home-grown terrorists taking up arms in a reaction to their discrimination as a Muslim. And so victimization reactions are highly important in granting Bin Laden his biggest victory. These reactions have provided a retrospective justification for Al Qaeda’s actions and have vastly improved the chance of Al Qaeda’s perspective gaining mainstream support across Islamic nations.

Chapter 11

Protecting the Victims of the Privatization of War Willem van Genugten, Marie-José van der Heijden, and Nicola Jägers

On September 16, 2007 private security contractors working for the company Blackwater were escorting an armed convoy when, according to Iraqi government officials, they with no justification shot and killed 17 civilians, leaving 24 injured in the Nisoor Square neighborhood of Baghdad. This was the seventh shooting of civilians involving Blackwater.1

11.1 Introduction Since the end of the Cold War, which brought about a shrinking of the size of national armies, one can observe an increased role of private military and security companies in conflict areas. States, most notably the United States of America and the United Kingdom, but increasingly also other states such as South Africa,2 are outsourcing war efforts, while in general progressively more tasks are being contracted out to these – what we call in this Chapter – Private Military and Security Companies (PMSCs).3 The major difference between traditional armies and PMSCs

W. van Genugten (B) School of Law, Tilburg University, 5000 LE, Tilburg, The Netherlands e-mail: [email protected] 1 See

for a detailed discussion, also of other examples, the 2008 report of the NGO Human Rights First, Report on Private Security Contractors at War – Ending the Culture of Impunity, 2008, available at: http://humanrightsfirst.info/pdf/08115-usls-psc-final.pdf. Employees of Blackwater have not been criminally prosecuted but are facing civil claims in the courts of the United States. For more on the possibility of civil litigation in such cases see Section 11.4 of this article. 2 According to Kate Allen, 70–85% of private security companies are based in the UK or the US: http://www.publications.parliament.uk/pa/cm200708/cmselect/cmfaff/533/53306.htma13. For more detail on South Africa, see Taljaard, R. (2006). ‘Implementing South Africa’s Regulation of Foreign Military Assistance Act’, In: Caparini M. & Bryden A. (eds). Private Actors and Security Governance, Berlin, Lit Verlag and the Geneva Centre for the Democratic Control of Armed Forces (DCAF). 3 See the Dutch Advisory Council on International Affairs, Employing Private Military Companies, The Hague, December 2007, and Human Rights First, Report on Private Security Contractors at

253 R. Letschert, J. van Dijk (eds.), The New Faces of Victimhood, Studies in Global C Springer Science+Business Media B.V. 2011 Justice 8, DOI 10.1007/978-90-481-9020-1_11, 

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is the contract-base on which these companies work. The PMSCs provide a wide pallet of services ranging from consultancy to combat, and it may be easier to categorize some of these activities as military than others such as logistic services, training and operational support. The increased reliance on PMSCs is not without problems. Excesses such as the above-mentioned example involving the company Blackwater in Iraq are an alarming illustration of the problems that may arise when employing PMSCs in conflict zones. Prior to the unprovoked killings in the Nisoor Square the company in 2006 already sparked controversy following the murder of an Iraqi by an allegedly intoxicated Blackwater contractor.4 Other examples of (alleged) violations of international human rights law by employees of PMSCs include the American PMSC DynCorp, being accused of rape and running underage prostitution networks in association with their security duties under contract with the US military in Bosnia, while several PMSCs are accused of killing Ecuadorian peasants by spraying their villages with toxic defoliants and accidentally shooting down a missionary plane incorrectly suspected of drug trafficking.5 There are numerous other examples of significant human rights violations at the hands of PMSCs following the excessive use of force and in the context of interrogations. Employees of firms such as CACI and Titan under contract with the US government, acting inter alia as interrogators at the Abu Ghraib prison in Iraq, were reportedly involved in some of the horrendous abuses associated with that detention facility in 2003. According to a recent report of the NGO Human Rights First more than sixty US military personnel have been court-martialed following their involvement in the death of Iraqi citizens. In contrast not one of the PMSCs implicated in similar crimes in Iraq has been prosecuted.6 The fact that the military involved in these human rights violations have been sentenced but those working for the PMSCs have not been legally prosecuted illustrates the existing accountability gap.

11.1.1 Focus of the Chapter The present chapter focuses upon the accountability gap that has surfaced since the tremendous growth of the use of PMSCs. It does so from a double victim perspective: it relates to employees of these companies falling victim to war activities and to people that become victims of the activities of PMSCs. As a matter of fact, the latter issue has been given a lot of publicity over the last couple of years, while so far the first issue has been neglected and should receive more attention since the employees of the PMSCs are increasingly victimized.7 War – Ending the Culture of Impunity, 2008, available at: http://humanrightsfirst.info/pdf/08115usls-psc-final.pdf. 4 Appendix C, Report Human Rights First, op. cit. 5 Examples given by Jeff Vail: Vail, J. (2006). The Private Law of War, 11 May, p. 6, available at: http://www.jeffvail.net/privatelawofwar.pdf. 6 Report Human Rights First, op. cit., p. 3. 7 Jennifer, E.K., Schwartz, M., & Nakamura, K.H. (2008). ‘CRS Report for Congress, Private Security Contractors in Iraq: Background, Legal Status, and Other Issues, Order Code RL32419’,

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Many PMSCs are professional firms that operate in a correct and responsible manner, in such fields as logistic services, training and operational support. However, the primary motive of these companies – usually operating at a great distance from the sending state – is an economic one which does not necessarily correspond with the public interests of the state. Especially troublesome from the double victim’s perspective is the lack of legal clarity. The aim of this chapter is to clarify the legal framework applicable to PMSCs in order to, ultimately, answer the question how victims can hold PMSCs to account and seek redress.

11.2 Privatizing Human Security For a correct understanding of the issues of PMSCs, it is important to keep in mind that it is not a new phenomenon. Throughout history mercenaries and companies of fighting men have been employed. It was not until the Franco-German war of 1870 that the concept of national armies gained predominance8 and that mercenarism started to significantly diminish. But the corporations under scrutiny in this chapter are quite different from these “adventurer”-mercenaries. These corporations are billion-dollar operations registered on stock markets headquartered predominantly in western countries, geared towards profit and in most cases licensed to operate in conflict zones. Contrary to mercenaries the private military industry aims for continuity of its operations. The PMSCs are quite diverse in terms of experience, size, age, and nationality. Generally, personnel working for these companies are ex-military, ex-police but also individuals without a military background. They operate in many different countries and these companies are able to recruit from all over the world. As one commentator notes: “It is thus easy for companies to acquire new capacities – just hire different people – or even to melt and reappear or morph from one identity to another.”9 Furthermore, the actors making use of the services of PMSCs are as varied as the companies themselves. The fact that PMSCs often are not directly employed by governments but are subcontracted10 to provide

Updated 25 August 2008, p. 5: All three contractors – Blackwater Worldwide, DynCorp International LLC, and Triple Canopy, Inc. – working for the Department of State under the Worldwide Personal Protective Services contract have had employees killed and wounded. According to Blackwater, 32 employees have been killed and more than 46 wounded. Overall, an estimated 1,000 employees of PMSCs have lost their lives and since 2003 an estimated 12,000 have been injured. Report Human Rights First, op. cit., p. 5. 8 See Singer, P.W. (2001/02). ‘Corporate Warriors: The Rise of the Privatized Military Industry and its Ramifications for International Security’, Int’L Sec., 26; Milliard, T.S. (2003). ‘Overcoming Post-Colonial Myopia. A Call to recognize and Regulate PMCs’, Military Law Review, 176. 9 Deborah Avant: http://www.fpri.org/enotes/200604.military.avant.privatemilitarycompanies.html. 10 This ‘layer on layer’ approach is, for example, the official policy of the US government when outsourcing activities in Iraq. According to the Logistics Civil Augmentation Program (LOGCAP) a contract is granted to one party which is responsible for getting the task done. This contractor subsequently employs other parties. This results in a myriad of contracts making the situation very misty. See Hiemstra R.R.K. (2007). ‘De nieuwe vrije lansier’, Militair Rechtelijk Tijdschrift, p. 205.

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protection for employees, or are hired by international organizations such as NATO or the United Nations (UN) or by NGOs or other commercial corporations, makes the situation all the more opaque.11 The first contemporary and most notorious PMSCs were companies such as Executive Outcomes and Sandline International which provided direct combat support services to ailing governments. Both corporations were, for instance, hired in the 1990s to defeat the Revolutionary United Front (RUF) in Sierra Leone. The activities of these companies were generally perceived as being illegitimate. However, the private military industry has since acquired a more legitimate face and these corporations are increasingly called upon to assist states. PMSCs have been called in to assist in many trouble spots around the globe. They are involved in the war on drugs in Colombia, in numerous African states and are active in the Balkans. For example, the Bosnians hired the PMSC Military Professional Resources Inc (MPRI) to advise and train their military after the Dayton Peace Accords. The conflict in Iraq has thrown this all into sharper relief. The number of PMSCs operating in Iraq is significant, although it is difficult to acquire exact information. Reported estimates range widely. A recurring estimate is that at some moment there were 180,000 people working for PMSCs in Iraq, of which 30,000 are security guards.12 Collectively, the PMSCs comprise the second largest armed security force in Iraq, second only to the US army. They represent a larger force even than the combined forces of all the coalition nations in Iraq other than the US.13 The private security companies in Iraq employ citizens of some thirty nations and many employees are security professionals from western countries such as the United States or British Commonwealth countries. Others come from Chile, Fiji, Nepal, and Nigeria. A third category of employees consists of local Iraqis.14 Recent private sector estimates suggest that global private security is a $100 billion industry. The US State Department reportedly spends $4 billion a year.15 Notwithstanding the difficulties in acquiring reliable information on the exact number of PMSCs, it seems fair to conclude that the point of no return has been reached: states such as the US may be unable to wage war without the support of PMSCs.16 Civil contractors are not only used by developing countries but also by “governments not troubled by instability but simply lacking 11 According

to Emanuela-Chiara Gillard, ICRC legal advisor, some 80% of the contracts of PMCs/PSCs are concluded with clients other than States. ICRC-review, 2006, p. 532. 12 Report Dutch Advisory Council on International Affairs, op. cit., p. 9. 13 Report Human Rights First, op. cit., p. 2. Elsea, Schwartz, Nakamura, op. cit., p. 3: “Some 50 private security contractors employing more than 30,000 employees are working in Iraq for an array of clients, including governments, private industry, and international organizations such as the United Nations.” 14 Ibidem. 15 Deborah Avant, op. cit.; Report Dutch Advisory Council on International Affairs, op. cit., p. 10. 16 MacDonald, A. (2007). ‘Dogs of War Redux? Private Military Contractors and the “New Mercenarism”’, Mílitair Rechtelijk Tijdschrift, p. 210.

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the resources or expertise to perform certain functions themselves.”17 The 2002 UK Green Paper on PMSCs predicted the growth of civil contractors among governments as long as the trend of contracting out continues.18 Moreover, multinational institutions, NGOs and corporations will hire them even more than they do currently.19

11.3 Victims of the Privatization of War and the International Legal Framework 11.3.1 Introduction International law does not explicitly regulate the activities of PMSCs operating in conflict areas. Specific norms have been developed in relation to mercenaries which possibly might be relevant for PMSCs. The analysis in this chapter, however, makes clear that this body of law is not adequate to deal with the problems posed by modern-day private contractors. In the search for the applicable legal framework we therefore need to look beyond these rules at international law more in general. We will first address the question whether International Humanitarian Law (IHL) and international human rights law offer protection for victims of PMSCs. Besides the question of applicable norms it is imperative to distinguish who can be held accountable. Given the (still) state-centric focus of international law the first response is to look at the question whether the misconduct of private contractors might invoke the responsibility of a state. However, as mentioned previously, statistics show that most private contractors are employed by non-state entities such as international organizations, NGOs or companies that are in need of security. The quest for accountability therefore requires a discussion of the direct accountability of actors such as the private contractor itself and/or the personnel working for the company. Subsequently, we will turn to the more traditional approach in which the question is raised whether the misconduct of PMSCs might invoke the responsibility of a state.

11.3.2 Mercenarism and Human Rights There is a significant body of law that deals with the phenomenon of mercenarism. In international humanitarian law – the rules applicable in times of conflict – there

17 Ibidem. 18 UK Green Paper (2002). ‘Private Military Companies: Option for Regulation, London’, The Stationary Office, paragraph 30. 19 PMSCs have for instance announced their intention to expand their operations by offering their services to corporations that are in need of protection against the threat of piracy before the coast of Somalia.

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is one specific article that deals with mercenaries: Article 47 of Additional Protocol 1 (AP 1) to the Geneva Conventions. It provides that: 1. A mercenary shall not have the right to be a combatant or a prisoner of war. 2. A mercenary is any person who (a) is specially recruited locally or abroad in order to fight in an armed conflict; (b) does in fact take a direct part in the hostilities; (c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised by, or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; (d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; (e) is not a member of the armed forces of a Party to the conflict; and (f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.20 If the definition provided for in this article is considered applicable to personnel of PMSCs it means that they lack the protection offered under IHL by the Prisoner Of War (POW) status. In practice the significance of this provision in the context of PMSCs has, however, proven infinitesimal in light of the definition of a mercenary given above. Employees of PMSCs will hardly ever meet the list of six cumulative conditions provided for. First of all, employees of these corporations only seldom take direct part in hostilities. Furthermore, according to the definition citizens of a country in conflict cannot be considered mercenaries. Moreover, elements such as the personal motive of the mercenary are extremely hard if not impossible to prove. In sum, the definition will generally not cover the employees of PMSCs.21 As will be discussed in the following section this, however, does not mean by contrast that private contractors do enjoy the protection offered to combatants under international humanitarian law. In 1989, the United Nations adopted the International Convention against Recruitment, Use, Financing and Training of Mercenaries.22 Prior to this, in 1977, the Convention for the Elimination of Mercenarism in Africa was adopted by the (then) Organization of African Unity (AOU), the present African Union

20 http://www.icrc.org/ihl.nsf/WebART/470-750057?OpenDocument. 21 See

MacDonald, op. cit., p. 222–225. See for the contrary conclusion, the 2008 CRS report mentioned above footnote 7. They may be qualified as mercenaries when the employees are nonnationals of the sending or host state, but of a third country. They are contracted out of a profit motive and are actually involved in the hostilities. 22 Adopted and opened for signature and ratification by General Assembly resolution 44/34 of 4 December 1989.

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(AU).23 The (O)AU Convention provides a prohibition of the crime of mercenarism (Article 1(2)), but contains the same problematic definition as Article 47 AP 1. The definition used in the UN Convention does go slightly beyond that of Article 47 AP 1 as it takes into consideration not only situations of armed conflicts but also of organized violence to bring about the collapse of a government, to undermine constitutionality or against the territorial integrity of a state (Article 1(2)). Nevertheless, the definition of a mercenary is also grounded on several unworkable attributes such as nationality and profit motive of individual participants. Especially the latter is difficult to prove.24 Besides the problematic definition the Convention is also weak from the perspective of customary international law. It took twelve years after its signing for twenty-two states to ratify the document. As of now it is ratified by thirtytwo states,25 while no major power has ratified it so far. Moreover, there exists broad practice to the contrary. It has even been argued that a norm of customary international law is emerging that legitimizes mercenarism,26 and therefore maybe parts of the activities discussed in this chapter. In 2005, the UN Commission on Human Rights created a Special Procedure for the issue of mercenaries: the UN Working Group on the use of mercenaries as a means of impeding the exercise of the right of peoples to self-determination. In 2008, the mandate of this working group was extended with three years and the focus shifted to the issue of PMSCs. Presenting its report in March 2008, the chair of the Working Group, Mr. José Luis Gómez del Prado from Spain, made some very illustrative and pinpointed observations as to the legal dimensions of the issue: The activities of private military and security companies take place in a grey zone, in which human rights violations with impunity are likely to occur, generally without the need to be accountable at the parliamentary level, generating a number of military and political problems. The current framework regulating the activities of private military and security companies, based essentially on self-regulation and voluntary codes of conduct, turns out to be insufficient, as demonstrated by the numerous cases of human rights violations that have been left unpunished.27

This relates to Abu Ghraib human rights violations and the like, but also to many other situations, in totally different parts of the world. The chair of the Working Group mentions, inter alia, the “emerging phenomenon in Latin America” where transnational companies hire private security companies to protect geo-strategic

23 OAU

Doc. CM/817 (XXiX) Annex II Rev. 1. (1977). reprinted in Gino J. Naldi (ed.) (1992). Documents of the Organisation of African Unity 58 (1992). 24 As pointed out by Vail, op. cit., p. 10, All this has everything to do with the fact that the main drivers behind the UN Mercenary Convention, as it is know, were African States that were careful not to upgrade the prohibition of mercenary to include modern-day private military corporations given their large dependency on the services of the African PMC Executive Outcomes. In the 1980s and the 1990s the company played an often crucial role in supporting African governments as a direct combat provider in conflicts in Angola, Sierra Leone, Uganda, Kenya, and Congo. 25 http://www.icrc.org/ihl.nsf/Intro/530?OpenDocument. 26 Vail, op. cit., p. 10–11. 27 http://www2.ohchr.org/english/issues/mercenaries/index.htm.

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locations such as mineral extraction sites, petroleum and water sources, leading to the violent repression of social protest by local communities in defense of their lands and environmental rights. But, as the chair observes: The allocation or delegation of some State functions to private companies is not an excuse for States to fail to comply with their duty to guarantee security, law and order, democracy and respect for human rights, nor is it an excuse to surrender their ultimate responsibility under international human rights law. The privatization of public services should never hinder the availability of these services to the general population.28

That, one might say, is the classical approach to the issue. It is a way of emphasizing the positive obligations of states in relation to, in this case, human rights impairing activities of PMSCs. Outsourcing governmental tasks does not imply contracting out states’ responsibilities. This is the heart of the matter. In Section 11.3.6 we will further examine the issue of state responsibility for the acts of PMSCs. The Working Group seems to be desperately seeking better legal protection within and outside the existing human rights framework, and has showed its frustration on the fact that the Office of the High Commissioner for Human Rights is not willing to take the lead in developing a model law based on the above-mentioned 1989 International Convention against the Recruitment, Use, and Financing of Mercenaries in order to facilitate states’ ratification and the adaptation of international norms to national legislation.29 It may be concluded that the body of law that deals with mercenaries does not offer an adequate legal framework for the victims of PMSCs. It is therefore necessary to look beyond these rules at international law more in general.

11.3.3 International Humanitarian Law As it concerns situations of conflict the basic applicable international legal framework is that of international humanitarian law. A first question concerns the status of employees of PMSCs in that particular field of international law; are they protected in case they fall victim to war crimes? The second question relates to the protection of the other category of victims; those who fall victim at the hands of the PMSCs. Employees of PMSCs that become victim of hostilities will generally lack protection under international humanitarian law. Nevertheless, some of the categories of persons that are granted protection under international humanitarian law would possibly be relevant in the context of PMSCs. Firstly, members of the armed forces of a state party to an armed conflict or members of militias or volunteer corps forming part of such forces are entitled to the protection that follows from the combatant-status. International humanitarian law is, however, not very clear on who can be considered to belong to the armed forces or the militias or volunteer groups mentioned here. It is clear, however, that

28 Ibidem. 29 http://www2.ohchr.org/english/issues/mercenaries/index.htm/.

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for employees of PMSCs to be seen in this light a more institutional affiliation than a mere contract is required.30 Emanuela-Chiara Gillard concludes that, in light of the fact that outsourcing takes place against the desire to reduce armed forces and related costs, there will be only very few instances in which PMSCs are incorporated into the armed forces to the extent necessary for them to be considered members thereof.31 Secondly, members of other militias and of other volunteer corps – including those of organized resistance movements that are structurally independent of the armed forces but nonetheless belong to a state party to an armed conflict – may claim combatant-status provided that such militias or corps fulfill the following conditions: they are commanded by a person responsible for his/her subordinates; they have a fixed distinctive sign recognizable at a distance; they carry arms openly; and they conduct their operations in accordance with the laws and customs of war.32 Gillard concludes that even though a de facto relationship between the PMSC and the state will in most cases exist sufficient to meet the requirement of this provision, the provision will presumably only cover those carrying out activities at the heart of the military operation, which implies that only a small minority of private military personnel will be considered to belong to militias or other volunteer groups in accordance with Article 4A (1) of the Third Geneva Convention (GC 3) on the Treatment of Prisoners of War and therefore are entitled to be considered combatants.33 A possible exception to the conclusion that employees of PMSCs will generally lack the Prisoner of War status, as they are generally not considered combatants, is Article 4A (4) GC 3 which provides that Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labor units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card (. . .).

Personnel falling within this category will not be considered as combatants but as civilians, but will nevertheless be granted POW-status in case of a nexus as described in the Article between the armed forces and the PMSC. The explicit authorization of the armed forces is necessary for this provision to apply and it is argued that if they participate in hostilities they lose that entitlement.34 In non-international armed conflicts, for instance, in a civil war, the status of the employees of the PMSCs is governed through Common Article 3 of the 1949 30 Gillard,

op. cit., p. 533. For a detailed and thorough discussion of this question, see the Report of the Expert Meeting on Private Military Contractors: Status and State responsibility for their Actions, University Centre for International Humanitarian Law, 29–30 August 2005. Available at: http://www.adh-geneva.ch/research/pdf/travaux/4/rapport_compagnies_privees.pdf, p. 9–12. 31 Gillard, op. cit., p. 533. 32 Article 4A (2) GC 3. Also see AP I. 33 Gillard, op. cit., p. 534–535. 34 The latter requirement is however not undisputed. See Gillard, op. cit., p. 538–539. See also Report of the Expert Meeting on Private Military Contractors, op. cit., pp. 14–15.

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Geneva Conventions by the national law of the state involved. Through this layered system the participation in the hostilities is defined by local law which may result in PMSCs-employees contracted by the insurgents against the state being considered as criminals. It can be concluded that personnel of PMSCs will generally not meet the requirements to qualify as combatants and on that ground will not be entitled to POW-status. Moreover, as concluded supra, if PMSCs’ personnel are considered mercenaries, international humanitarian law explicitly denies POW-protection. The very limited basis for classification as combatants under international humanitarian law will result in individuals working for PMSCs being regarded as civilians. The fact that they lack the protection that the POW-status grants does not mean that these employees are completely unprotected, however. They may benefit from Geneva Convention 4 on the Protection of Civilian Persons in Time of War or from the general protection offered by, inter alia, Article 75 of AP 1, on “Fundamental guarantees” applicable upon acts which “are and shall remain prohibited at any time and in any place whatsoever.” But despite that, it can be concluded that personnel working for PMSCs who fall victim to war activities themselves lack to a significant degree the protection of international humanitarian law. As to the second category of victims (people falling victim to the activities of PMSCs), they are also protected by Article 75 AP 1, since it concerns fundamental guarantees that do not require any other condition for its application, but are inherent to mankind. Moreover, Common Article 3 of the 1949 Geneva Conventions grants certain rights, or rather, it prohibits certain acts such as torture, the prohibition of which is considered not only to belong to customary international law but also to be a jus cogens norm. Moreover, the provisions of the Fourth 1949 Geneva Convention specifically regulate the conduct of hostilities to protect civilians. Thus, international humanitarian law when properly applied would not only protect the employee in combat, but also bystanders, persons hors de combat, and non-military objects, e.g. the houses of civilians, although the extent to which the various persons involved are protected by international humanitarian law may differ considerably.

11.3.4 International Human Rights Law (Allegations of) human rights violations are most likely to arise in situations of combat and therefore we examined the norms of international humanitarian law in the previous section. However, the distinction between combat and non-combat operations and therefore to a large extent the applicability of international humanitarian law or international human rights law, is somewhat artificial. Those providing, for example, logistical support and training also contribute to the military operation and therefore companies belonging to the broader category of PMSCs may become caught up in human rights violations as well. From the perspective of the victim it is interesting to examine international human rights law, given the broad range of accountability mechanisms and the possibilities for redress that have been developed

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within this body of law and since the nature of most of the contractors and of the contracts in most cases have nothing to do with armed force. The first human right that comes to the forefront when discussing the issue of “PMSCs and international human rights law” relates to the right to life. The statistics coming from Iraq provide an illustration; an estimated 1,000 employees of PMSCs have lost their lives and in the period 2003–2008 an estimated 12,000 have been injured.35 The dangers that personnel of PMSCs are exposed to were highlighted in 2004 by the ambush and barbaric mutilation of four American employees of PMSCs in Iraq.36 Clearly, the number of victims of PMSCs is small compared to those that become the victim of lethal force used by regular armies. However, the latter category is protected by the international humanitarian law framework. As has been discussed, the practical application of this framework to protect civilians that fall victim within or at the hands of PMSCs is problematic. International human rights norms are applicable to the victims of the private military and security industry simply by virtue of the fact that human rights are inherent to every individual. Subsequently, the question arises who can be held accountable for such human rights violations: the PMSC and/or its personnel or should it be the state?

11.3.5 Holding Non-state Entities and/or Individuals to Account Under International Law Given the fact that the majority of contracts with private parties are concluded with clients other than states, it is imperative to first discuss the possibilities of holding the private contractor and/or its employees operating in conflict situations to account at the international level before turning to the issue of state responsibility. The accountability of corporations for human rights violations is controversial and invokes multiple conceptual issues many of which are beyond the scope of this article.37 However, in international human rights law there is increasing acknowledgement that corporations are the bearer of certain human rights duties.38 There are numerous indicators to be found in international documents and interpretation thereof that support this conclusion, including the duty to take care of reparation in case of a breach of such duties. Based on, inter alia, several soft law 35 Report,

Human Rights First, op. cit., p. 5. 31 March 2004, four Blackwater contractors were ambushed, killed and mutilated by a mob in Fallujah, Iraq. The families of the four men ultimately sought legal redress from the corporation Blackwater. See report Human Rights First, op. cit., appendix G. 37 See, inter alia, Jägers, Nicola (2002). Corporate Human Rights Obligations: In search of accountability, Antwerp, Intersentia. 38 Jägers, op. cit. International Council on Human Rights Policy (ICHRP) (2002). Beyond Voluntarism. Human rights and the developing international legal obligations of companies, ICHRP, Geneva; Clapham, Andrew (2006). Obligations of Non-State Actors, Oxford, Oxford University Press, 2006; Genugten, W.J.M. van, (2000). ‘The Status of Transnational Corporations in International Public Law’, in: Eide, Asbjørn., Helge, Ole Bergesen., & Pia Rudolfson, Goyer (eds.). Human Rights and the Oil Industry, Antwerp/Groningen/Oxford, Intersentia, pp. 71–89. 36 On

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instruments such as the Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law39 and on the Statute of the International Criminal Court (ICC), Eric Mongelard reaches the conclusion that “despite the absence of international enforcement mechanisms, there appears to be a tendency on the part of international law to consider that non-state entities that breach obligations deriving from international human rights law or international humanitarian law are indeed under an obligation to make reparation.”40 This general principle as such might not be a problem anymore. The problem is the enforcement of human rights norms on corporations. Presently there is no international mechanism where corporations can be held accountable for violations of international human rights law. For instance, a proposal to include crimes committed by corporations in the jurisdiction of the ICC was not accepted. However, when PMSCs operate in conflicts areas, human rights abuses can easily translate into individual criminal responsibility, and if it concerns crimes incorporated in the ICC Statute, victims can turn to the ICC where individuals can be held accountable. This might include those in a position of management in PMSCs and even individual employees working for them. To date, however, there has been no prosecution of employees of PMSCs before the ICC.

11.3.6 The Law of State Responsibility As states are the prime duty bearers under international law, the first and foremost line of arguing is therefore linked to the responsibility of states to avoid and repair internationally wrongful acts. According to the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (DARS)41 two conditions apply for a state to be held responsible for the conduct of PMSCs. Firstly, the conduct must be attributable to the state and, secondly, the conduct must be a violation of an international norm. The applicable norms have been addressed in the previous sections and therefore the focus here will be upon the question under what circumstances international law violations perpetrated by PMSCs will be attributable to the employing state. Firstly, and easiest: when the PMSC acts as an official organ of the state its acts will be attributable to the state that hires it (Cf. Article 4 DARS). If a PMSC can be qualified as part of the armed forces, a militia or a volunteer corps forming part of such armed forces this PMSC will constitute a state organ and its conduct will be

39 A/Res/60/147,

Principles 1, 3 and 17. E. (2006). ‘Corporate Civil Liability for Violations of International Humanitarian Law’, ICRC-review, pp. 671–673. 41 See the Report of the International Law Commission on the Draft Articles, UN GAOR Supp No 10 UN Doc. A/56/10 (2001). The DARS are not a legally binding document. However, almost all provisions do bind states that have not persistently objected as they constitute customary international law. 40 Mongelard,

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attributable to the state for purposes of state responsibility.42 However, it should be clear that PMSCs are only very rarely incorporated into the army to such an extent as to be able to be considered an official part of the armed forces. Secondly, the acts of a PMSC will be attributable to the state that hires the contractor if the corporation is empowered to exercise elements of governmental authority (Cf. Article 5 DARS). Therefore, PMSCs must be empowered by the internal law of the state to fulfill functions of a public character that are normally fulfilled by organs of the state. The most relevant example mentioned in the commentaries to the DARS43 is the outsourcing of prison security to private security firms which brings to mind the human rights violations committed by the private security firm SAIC employed in the Abu Ghraib detention facility in Baghdad. Based on Article 5 DARS the human rights violations committed by the private security guards in this detention facility can be attributed to the US. This provision would seem applicable to a considerable proportion of the activities of private military contractors. However, the requirement that the PMSC is “empowered by the law of the State to exercise governmental authority” poses a significant limitation of its applicability. Gillard concludes that the existence of a mere contract between the state and the company is not enough to trigger state responsibility under Article 5 DARS.44 There needs to be a specific law that empowers the state to delegate a certain power to a PMSC.45 This requirement might prove especially problematic in the case where a PMSC employed for a certain task subsequently subcontracts the task to another PMSC, as frequently happens. Moreover, it will not always be easy to classify private activities as “elements of governmental authority.” As stated earlier, PMSCs offer a broad spectrum of services. Whether certain tasks, such as the provision of security for a certain project or person, can indeed be classified as exercising governmental authority, will differ from case to case, and depends largely on the terms in the contract between the contracting private party and the state. It can be concluded that most services provided by PMSCs, except for clear military operations, cannot be seen as exercising governmental authority and will therefore not trigger state responsibility. Something similar would go for a possible state responsibility to be based upon, for instance, Articles 7 and 9 of the DARS. According to Article 7, misconduct by PMSCs might also be attributable to the state in case of excess of authority or in contravention of instructions – so-called ultra vires acts. The misconduct that occurs in the performance of acts with apparent public authority has to be systematic or recurrent in order to be able to draw the conclusion that the state should have known and had the opportunity to prevent the wrongdoing.46

42 Report

of the Expert Meeting on Private Military Contractors, op. cit., p.12–13. Crawford, J. (ed.) (2003). ‘The International Law Commissions Articles on State Responsibility: Introduction, Text and Commentaries’, Cambridge, Cambridge University press, p. 100. 44 Gillard, op. cit., p. 555. 45 Report of the Expert Meeting on Private Military Contractors, op. cit., p. 18. 46 Crawford, op. cit., p. 114–115. 43 See

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Furthermore, according to Article 9, state responsibility may arise when PMSCs are in fact exercising elements of governmental authority in the absence or default of the official authorities. The case of the notorious private military corporation Executive Outcomes provides an example. This PMSC was employed in 1995 by the default governmental authorities of Sierra Leone to fight against rebels that occupied most of the country which was in a state of anarchy for over four years. Executive Outcomes managed to crush the rebellion. A third category of private acts that may trigger state responsibility are those committed by corporations that remain outside the official structure of the state but are acting under its instructions, directions or control (Cf. Article 8 DARS). Even though this encompasses a broader category of private acts than the previously mentioned group, as it does not matter whether the conduct involves governmental activity, the applicability of the provision to private activities may also turn out to be rather narrow in scope. This would certainly be the case if, as has been argued,47 state responsibility only arises if the state directed the company to commit violations of international law and not if it hired the company to perform a lawful activity in the course of which the private contractor violated international law. This point of view, however, should be rejected to our mind. What is required is the existence of a real link between the entity performing the act and the state machinery and not the instructions to carry out a wrongful act.48 The test whether there indeed has been sufficient control by the state has originally been a strict one. The requirement here is that of “effective control” as formulated by the International Court of Justice (ICJ) in the Nicaragua case.49 However, a broader test of what degree of control over private conduct is needed to trigger state responsibility is that of “overall control” as developed by the International Criminal Tribunal for the former Yugoslavia (ICTY).50 This test has a lower threshold for proving control; it is not necessary to find evidence of specific instructions, overall control suffices. However, this “overall control” test was rejected in the 2007 decision of the ICJ in the case of Bosnia v. Serbia.51 According to the Court for state responsibility to arise for private acts based on Article 8 DARS “it must (. . .) be shown that (. . .) ‘effective control’ was exercised, or that the State’s instructions were given, in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by persons or groups of persons having committed the violations.”52 According to the ICJ the “overall control” test broadens the scope of 47 Gillard,

p. 555.

48 Crawford, op. cit., p. 110, para. 1. Report of the Expert Meeting on Private Military Contractors,

op. cit., p. 18–19. and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits). ICJ, 27 June 1986, ICJ Rep 1986, p. 14. 50 Prosecutor v. Tadic (Appeals Chamber Judgment ICTY-IT-94-1-A). 15 July 1999. 51 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Merits) 2007, ICJ Rep 4. For an analysis of the ICJ Genocide case, see Antonio Cassese, EJIL, 18, no. 4, p. 649. 52 Bosnia v Serbia case, para. 400. 49 Military

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state responsibility too much: “(. . .) the ‘overall control’ test is unsuitable, for it stretches too far, almost to breaking point, the connection which must exist between the conduct of a State’s organs and its international responsibility.”53 In a dissenting opinion Vice-President Al-Khasawneh points out the danger of the sole reliance on the “effective control” test. According to him “it gives States the opportunity to carry out criminal policies through non-State actors or surrogates without incurring direct responsibility.”54 In the words of the UN International Law Commission (ILC) “it is a matter for appreciation in each case whether particular conduct was or was not carried out under the control of a State, to such an extent that the conduct controlled should be attributed to it.”55 This is in line with the “broad interpretation” of and “circumstances oriented” approach to state responsibility, pleaded for by the Dutch Advisory Council on International Affairs, looking at the issue from a substantive rather than a formal point of view.56 Whatever the exact wording regarding state responsibility for the acts of PMSCs, experts anyhow agree that vague instructions for the PMSC might result in state responsibility if subsequently wrongful acts occur. To evade state responsibility, including clear rules of engagement in the contracts is considered crucial.57 In the fourth place, private conduct will be attributable to the state when a state acknowledges or adopts a concrete unlawful act of a PMSC as its own (Cf. Article 11 DARS). This is not a very likely scenario, but if it happens it would not raise many complexities from a legal point of view. It therefore can be dealt with here without further discussion and illustration. Fifthly, the state may, even where the conduct of a PMSC is not attributable to it nevertheless incur responsibility for its failure to exercise due diligence58 with regard to that company’s activities. In the context of PMSCs, the previously mentioned Working Group on the Use of Mercenaries as a Means of Impeding the Exercise of the Right of Peoples to Self-Determination stated this as follows: “States have the responsibility to take appropriate measures or exercise due diligence to prevent, punish, investigate and redress the harm caused by acts of PMSCs or their staff that impair human rights. States which contract PMSCs to export their activities abroad have to respect their international legal obligations, which cannot be eluded by outsourcing some of its functions.”59 The due diligence standard has been further developed under international human rights law especially in the context of the obligation to protect life and to protect 53 Ibidem,

para. 406. Dissenting opinion of Vice-President Al-Khasawneh, para. 39. 55 Ibidem, p. 112, para. 5. 56 Advisory Council on International Affairs, op. cit., p. 42 and 44, and passim. 57 Report of the Expert Meeting on Private Military Contractors, op. cit., pp. 19–20. 58 See amongst others Engström, V. (2002). Who is Responsible for Corporate Human Rights Violations? Åbo Akademi University, Institute for Human Rights, January, p. 19. 59 Human Rights Council, ‘Report of the Working Group of the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of People to Self-Determination’, 9 January 2008, A/HRC/7/7, para. 51. 54 Ibidem,

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persons from torture and inhuman and degrading treatment. This has been done not only by the UN Human Rights Committee,60 but this idea is also endorsed by, inter alia, the UN Committee on Economic Social and Cultural Rights61 as well as by various regional human rights bodies such as the European and the Inter-American Courts of Human Rights.62 In the Inter-American system, for instance, this obligation of due diligence of the state is well-established in the Velasquez Rodriguez case,63 while for the European system one can think of Costello-Roberts v. The United Kingdom,64 where it is stated that “the State cannot absolve itself from responsibility by delegating its obligations to private bodies or individuals.” The due diligence obligation requires states to take reasonably available measures to protect persons threatened by, in this case, PMSCs.65 This includes preventive measures and if wrongful conduct occurs a proper investigation. Whereas the above-described rules on attribution apply to the troop-contributing state, the obligations following from the due diligence doctrine can also apply to other states such as the host state and the state where the PMSC is headquartered. The farther removed the state is from the PMSC that commits the wrongful act the less likely it is that the state will have failed in its due diligence obligation. In a meeting on PMSCs and state responsibility convened in 2005, experts sought to clarify the content of the due diligence obligation in the case of PMSCs. It was brought forward that a state is under the obligation to take positive measures if it has or should have reason to believe that a PMSC is engaged in conduct that would constitute a human rights violation; where there is a foreseeable risk that a certain class of persons will fall victim at the hands of the contractor; and when a PMSC is engaging in an inherently dangerous situation.66 We share this approach.

60 See

on HRC’s interpretation of positive obligations: Human Rights Committee, General Comment 3, ‘Article 2, Implementation at the National Level, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’, UN Doc. HRI/GEN/1/Rev.1, p. 4 (1994). Also see Klein, E. (2000). ‘The Duty to Protect and to Ensure Human Rights Under the International Covenant on Civil and Political Rights’, In: Klein, Eckart (ed.), The Duty to Protect and to Ensure Human Rights, (Colloquium Potsdam, 1–3 July 1999). Berlin, Berlin Verlag, pp. 296–297. 61 See for more on the nature of State obligations in the field of economic, social and cultural rights: Commission on Economic, Social and Cultural Rights, General Comment, ‘The Nature of States Parties Obligations (Art. 2, Para. 1, 14/12/90). 62 Velásquez-Rodríguez v. Honduras, Inter-American Court of Human Rights, Judgment of 29 July 1988, Series C, No. 4; Mahmut Kaya v. Turkey, ECrtHR, App. No. 22535/93, Judgment of 28 March 2000, paras. 101, 108–109; Kilic v. Turkey, ECrtHR, App. No. 22492/93, Judgment of 28 March 2000, paras. 77 and 83. 63 Velasquez Rodriguez Case, op. cit., para. 172. See for more details of this and other cases and for extraterritorial application of human rights in relation to private military and security companies: Coomans, F. and M.T. Kamminga (eds.) (2004). Extraterritorial Application of Human Rights Treaties, Antwerp/Oxford, Intersentia. 64 Judgment of 25 March 1993. 65 Report of the Expert Meeting on Private Military Contractors, op. cit., pp. 33–40. 66 Ibidem, p. 37.

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Overall, it may be concluded that attributing, or trying to attribute, international law violations by PMSCs to states is quite complex. Our discussion on attribution has shown that all this, first and foremost, applies to the state hiring PMSCs. In addition, however, an obligation of due diligence can be discerned that applies to a broader range of states. Moreover, all states are anyhow under the obligation to prosecute or extradite individuals that commit serious violations of international (humanitarian and human rights) law (principle aut dedere aut iudicare). At the beginning of this chapter we mentioned that PMSCs are also employed in the context of operations by international organizations. They are hired by international organizations such as the UN, NATO, the European Union and the African Union to assist in (peace support) operations. One can agree that where a contributing state merely funds a private contractor deployed on a peace support operation the conduct of the private contractor will not be attributable to the state.67 For the conduct of a private contractor in this context to be attributable to the state under Article 5 DARS the state must actually send the contractor and the contractor must perform inherently governmental functions (see above). Policing and peacekeeping functions will be attributable to the state, but PMSCs in the context of peace support operations may also be involved in, for instance, delivering humanitarian aid. It is unclear whether this will qualify as “exercising governmental functions” needed to attribute misconduct to the state or to an international organization. According to Article 4 (1) of the provisional articles on the international responsibility of international organizations “the conduct of an organ or agent of an international organization in performance of functions of that organ or agent shall be considered as an act of the international organization under international law whatever position the organ or agent holds in respect of the organization.”68 Based on this provision it can be argued that acts of a PMSC hired by an international organization will be considered as acts of the international organization giving rise to international responsibility of that organization.69 Further to this, the reasoning would be equal to the one unfolded in relation to the responsibility of separate states. This section has focused on the question whether state responsibility may arise in the case of misconduct by PMSCs. It is clear that many problems exist regarding, inter alia, the attribution of such behavior to the state. Notwithstanding our conclusion that it is imperative that state responsibility is not interpreted in a minimalist manner when it comes to addressing misconduct by PMSCs, we must also acknowledge the fact that state responsibility can only provide a partial answer to the problems posed, as by far the majority (over 80%) of PMSCs are hired by nonstate actors such as NGOs and corporations. The doctrine of state responsibility may not offer viable solutions for the victims in the context of PMSCs hired by

67 Ibidem,

p. 31.

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of International Organisations. Report of the International Law Commission on the work of its Fifty-fourth session (2002). Official Records of the General Assembly, Fifty-seventh session, Supplement no. 10 (A/57/10), Chapter VII. 69 Report of the Expert Meeting on Private Military Contractors, op. cit., p. 32.

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other private entities. It is therefore necessary to look at alternatives such as the possibilities offered by national courts to hold PMSCs and/or those working for these corporations accountable.

11.4 Victims of the Privatization of War and National Jurisdiction: The Case of the US 11.4.1 Introduction In addition to the level of international law, presented and discussed so far, it is imperative to look at national jurisdictions as well, and to see what kind of means they provide in relation to illegal activities conducted by PMSCs. However, it would be beyond the scope of this chapter to discuss that issue at large. Given the fact that the US is one of the largest clients of PMSCs and because the US is the home state of many PMSCs such as the company previously called Blackwater, the focus is upon that particular state. The analysis addresses criminal and private law means, and ends with a short remark on a specific administrative law.

11.4.2 Criminal Prosecution of PMSC Activities in US Federal Courts Certain federal statutes extend US jurisdiction to US nationals at US facilities overseas, qualified as part of the Special Maritime and Territorial Jurisdiction (SMTJ)70 of the US.71 The crimes have to involve a US perpetrator or a US victim. The following acts are qualified as crimes to which the criminal statutes apply overseas but within the SMTJ: maiming; assault; kidnapping; sexual abuse, assault or contact; murder; and manslaughter.72 So far, there are not yet many examples of criminal prosecution of PMSC activities based upon this law. An exception is the case of David Passaro, a former contractor working on behalf of the CIA. He was convicted in 2007 for assault during an interrogation that resulted in serious bodily harm of a detainee at the Asadabad Base in Afghanistan.73

70 18 U.S.C. § 7(9) (amended by the § 804 of the US Patriot Act, P.L. 107–56, title VIII, 26 October,

2001, 115 Stat. 377) (excluding persons covered by the MEJA, see below). Schwartz and Nakamura, op. cit., p. 21. 72 18 U.S.C. § 113, 114, 1111, 1201, 2241–45, 2248. 73 Department of Justice Press release, “David Passaro Sentence to 100 Months Imprisonment: First American Civilian Convicted of Detainee Abuse During the Wars in Iraq and Afghanistan”, February 13, 2007, available at: http://charlotte.fbi.gov/dojpressrel/2007/ce021307.htm. 71 Elena,

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The US Military Extraterritorial Jurisdiction Act of 2000 (MEJA)74 explicitly deals with private contractors. The MEJA not only “permits the prosecution of certain specified persons who commit acts that are considered criminal offenses punishable under federal law by imprisonment for more than a year, had the conduct occurred within the United States,”75 but it also provides for the prosecution of civilians “employed by or accompanying the armed forces outside of the United States.”76 Companies or individuals under contract with other US government agencies than the armed forces used not to be covered by MEJA. After the Abu Ghraib incident MEJA’s scope was expanded to include employees and contractors of all governmental agencies, rather limited, however, “to the extent such employment relates to supporting the mission of the Department of Defense.”77 In 2007, the MEJA was expanded to cover “contingency operations”78 (see below under UCMJ). So far, twelve persons have been charged under the 2000 MEJA, with several investigations underway.79 Examples relate to contractors and the possession of child pornography; abusive sexual contact involving a female soldier; the assault of another contractor; and rape and murder of an Iraqi girl and the murder of her family while the defendant served on active duty in Iraq.80 The 1950 US Uniform Code of Military Justice (UCMJ), lately amended in 2006,81 regulates the behavior of US uniformed personnel abroad, but the Code originally did not cover PMSCs’ conduct.82 In 2006, the UCMJ was amended by the US Congress to expand the scope further to cover persons “serving with or accompanying an armed force in the field [during a] declared war or a contingency operation.”83 A “contingency operation” is further defined under federal law as an operation “designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force,” or which results in the call or order to active duty of members of the

74 P.L.

106–523, 114 Stat. 2488 (2000). Codified at 18 U.S.C. 3261–6718. For information on the legislative history, see Glenn R. Schmitt, ‘Closing the Gap in Criminal Jurisdiction over Civilians Accompanying the Armed Forces Abroad – a First Person Account of the Creation of the Military Extraterritorial Jurisdiction Act of 2000’, 51 Cath. U. L. Rev. 55 (2001). 75 Report Human Rights First, op. cit., p. 25. 76 Ibidem. 77 Ibidem, citing the MEJA. 78 (H.R. 2740) on October 4, 2007. 79 ‘Closing Legal Loopholes: Prosecuting Sexual Assault and Other Violent Crimes Committed Overseas by American Civilians in a Combat Environment, Hearing Before the Senate Committee on Foreign Relations’, 110th Cong. (9 April 2008). 80 The US CRS, 2008, op. cit. 81 U.S.C., Title 10, Subtitle A, Part II, Chapter 47 S. 801 or 64 Stat. 109, 10 U.S.C. Chapter 47. 82 US Code Collection, Title 10, Subtitle A, Part II, Chapter 47, Subchapter I, § 802, Art. 2. 83 Report Human Rights First, op. cit., p. 28.

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armed forces under certain other statutory provisions. The military operations in Iraq and Afghanistan are both regarded as such contingency operations.84 The broadening of the UCMJ is explicitly meant to bring civil contractors, amongst others those working for PMSCs, under military jurisdiction and to prosecute them before court-martials. To date, only one case has been recorded under the UCMJ, namely that of the interpreter of dual Canadian-Iraqi citizenship that pleaded guilty in connection with the stabbing of another contractor.85 After the landmark case Reid v. Covert,86 the Supreme Court limited the possibilities to court-martial civilians that accompany the armed forces under the UCMJ severely. From subsequent case law it can be concluded that civilians, e.g. PMSCs employees, may have to face courtmartial.87 However, a civilian contractor can only be tried by a court-martial if the US Constitution permits it and where the conditions of the UCMJ are satisfied. As of now, there are several initiatives pushing for more clarity on the application of the UCMJ and generally for a clear legal framework to regulate PMSCs’ conduct.88 From the perspective of the victims of PMSCs’ activities such initiatives need strong encouragement.

11.4.3 US Tort Jurisdiction in Relation to PMSC Activities One of the grounds on which national courts may have jurisdiction in cases concerning violations of international law is the universality principle. This primarily operates in the context of criminal prosecution in case of gross human rights violations, such as genocide, crimes against humanity and war crimes. However, several scholars have been arguing for implementing the universal jurisdiction principle not only in criminal but also in tort jurisdiction. As Cedric Ryngaert points out, the establishment of universal tort jurisdiction would depend on the idea of justice and accountability with a focus on reparations, alongside the perspectives of punishment and moral condemnation. He argues that “all legal systems where the universality principle has taken hold, have integrated both perspectives.”89 So far, there are a few treaties explicitly authorizing or requiring the exercise of universal criminal jurisdiction, yet no such treaty explicitly authorizes states to

84 Report

Human Rights First, op. cit., pp. 28–29. Release, Multi-National Corps, ‘Civilian contractor convicted at a court-martial (Bagdad)’, 23 June, 2008, No. 20080623-01, available at: http://www.mnf-iraq.com/index.php? option=com_content&task=view&id=20671&Itemid=21. 86 354 U.S. 1 (1957). See also O’Callahan v. Parker, 395 U.S. 258, 267 (1969): court-martials have no jurisdiction to try those who are not members of the Armed Forces, no matter how intimate the connection between their offense and the concerns of military discipline. 87 For a detailed analysis of the relevant cases, see: CRS, 2008, pp. 26–31. 88 See for these initiatives: Elena, Schwartz & Nakamura, op. cit., pp. 30–31. 89 Ryngaert, C. (2007). “Universal Tort Jurisdiction over Gross Human Rights Violations”, Netherlands Yearbook of International Law, T.M.C. Asser Press, Vol. 38, pp. 3–60. 85 Press

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exercise universal tort jurisdiction.90 In the Lotus case,91 however, it is stated that a jurisdictional assertion such as one of universal tort jurisdiction is lawful as long as there is no prohibitive rule to the contrary. While such a prohibition does not exist, one might argue, universal tort litigation is allowed under international law. In the words of Beth Stephens, recalling Lotus, “civil and criminal responses to international human rights violations (. . .) all fall within the broad authorization of universal jurisdiction.”92 US Supreme Court Justice Breyer, in his dissenting opinion in the US Sosa v. Alvarez-Machain judgment,93 draws a parallel to criminal jurisdiction and reasons that tort jurisdiction over egregious crimes is (also) acceptable under international law; since, when one is authorized to establish universal criminal law, one is authorized to execute a lesser power as well.94 And Judge Higgins in the ICJ Arrest Warrant case95 notes that “nothing in case law (. . .) evidences an opinio iuris on the illegality of such a jurisdiction” and “national legislation and case law – that is, State practice – is neutral as to the exercise of universal jurisdiction.”96 So, it seems that legal doctrine and case law begin to allow universal tort jurisdiction for providing victims legal redress. This possibly provides an interesting means of redress for those who fall victim to the activities of the private military and security industry. The extraterritorial application of human rights law through a national legal mechanism par excellence is the US Alien Tort Claims Act (ATCA). The ATCA allows individuals of non-US countries to bring tort actions in the federal district courts. Since the 1980 Filartiga decision,97 it has been progressively used by victims of human rights violations committed abroad. “Aliens” have to sue for a tort committed in violation of the law of nations or a US treaty. In Filartiga, it was found that federal courts can hold states (and states’ officials) liable under the ATCA for a human rights violation that constitutes torture. In subsequent cases, the ATCA was extended to (1) individuals that can be held liable for international crimes or crimes that they committed in furtherance of genocide or war crimes98 ; (2) groups of individuals who are not representatives of states that violated international law99 ;

90 Ryngaert,

op. cit., p. 16.

91 Permanent Court of International Justice (PCIJ). S.S. Lotus (France v. Turkey). PCIJ Rep., Series

A, No. 10, (1927). B. (2002). ‘Translating Filartiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations’, Yale JIL, 27, r. 40. 93 124 S. Ct. 2783. See also Kamminga, M.T. (2005). “Universal Civil Jurisdiction: Is it legal? Is it desirable?”, ASIL Proceeding, p. 125, for the argument of consistency of universal jurisdiction under international law. 94 See Rygnaert, op. cit., pp. 26 and 35–41. 95 ICJ Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium). Judgment of 14 February 2002, I.C.J. Reports 2002. 96 Ibidem, para. 45. 97 Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir. 1980). 98 Kadic v. Karadzic 70 F.3d 232 (2d. Cir. 1995). 99 Tachiona v. Mugabe, 169 F. Supp. 2d 259 (S.D.N.Y. 2001). 92 Stephens,

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and (3) corporations with or without the cooperation of states to violate international law. In case of PMSCs all three categories may be relevant.100 Further, US courts applying the ATCA have recognized secondary liability to bring perpetrators within the ambit of the Act. For secondary liability,101 “knowing practical assistance or encouragement that has a substantial effect on the perpetration of the crime”102 is applied as an ATCA standard for “aiding and abetting.” “Intent” is not necessary; “knowledge” was sufficient.103 In Wiwa v. Royal Dutch Petroleum Co.,104 ATCA liability was extended to a person participating in actions with a state actor to violate international law. Depending on the concrete circumstances PMSCs and their employees can be held liable under this complicity liability concept.105 In an ATCA case against PMSCs, Titan et al.,106 it was argued that they were immune under the contractor defense, when providing interrogation services to the US government in Iraq. In examining the extent of the sovereign immunity argument, the court stated that “when the military allows private contractors to retain authority to oversee and manage their employees’ job performance on the battlefield, no federal interest supports relieving those contractors of their State law obligation to select, train, and supervise their employees properly.”107 While this statement may support the notion of state responsibility to regulate PMSC behavior, it does not make a legal argument holding them liable yet. The earlier mentioned incident involving Blackwater personnel opening fire on civilians, resulting in seventeen deaths and twenty-four injuries, resulted in a case being filed in October 2007 against Blackwater by the American NGO Center for Constitutional Rights (CCR) under the ATCA in order to hold the PMSC accountable for its overseas human

100 Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424 (D.N.J. 1999). See for many more examples the

website: http://www.business-humanrights.org and the reports by the UN Special Representative of the UN Secretary General on business and human rights Prof. John Ruggie, April 2008 (A/HRC/8/5) and April 2009 (A/HRC/11/13). 101 Garmon, T. (2003). ‘Domesticating International Corporate Responsibility: Holding Private Military Firms Accountable Under the Alien Tort Claims Act’, Tulane Journal of International and Comparative Law, 11, 325, 346, citing Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002). In Doe v. Unocal, 395 F.3d 932 (9th Cir. 2001), p. 947, the aiding and abetting standard is derived from international law, see: Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Judgment, 10 December 1998, p. 249; and Prosecutor v. Alfred Musema, Case No. ICTR-96-13-A, Judgment, 27 January, 2000, p. 181. 102 Doe v Unocal, 395 F.3d 932 (9th Cir. 2001), p. 947. 103 Tina Garmon, op. cit, p. 949–950 and 951. Also see A. Sebok, ‘Taking Tort Law Seriously The Alien Tort Statute’, 33 Brook. J. Int’l L. 3, 2008, p. 871. 104 2002 U.S. Dist. LEXIS 3293 (S.D.N.Y. Feb. 28, 2002); 226 F.3d 88, 92–93 (2d Cir. 2000). 105 Dahl, M.C. (2008). ‘Soldiers of Fortune – Holding private Security Contractors Accountable: The Alien Tort Claims Act And Its Potential Application To Abtan v. Blackwater USA’, ExpressO, 2008, available at: http://works.bepress.com/matthew_dahl/1. 106 Saleh et. al v. Titan Corp., 353 F. Supp. 2d 1087 (2004); and Ibrahim et al. v. Titan Corp. 391 F. Supp. 2d 10 (2005). 107 Ibrahim v. Titan Corp., F. Supp. 2d (D.D.C. 2007). WL 3274784, p. 3.

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rights violations.108 The victims represented by CCR are aliens suing Blackwater for tort consisting of human rights violations. In line with previous cases, a PMSC such as Blackwater can be sued under the ATCA. This corporate case differs, however, from previous cases where governmental forces supported the corporation, as the PMSC had an official contract concluded with the US government to perform armed force. Despite this conclusion, we agree with Matthew Dahl that in both cases the essence is that a state and a corporation participate in violating international law.109 Dahl furthers the argument – supported by evidence of a memorandum of the US House Committee for Oversight and Government Reform – that the US government cooperated with Blackwater to cover up incidents; to avoid thorough investigations into the incidents; and to forestall criminal prosecution.110 At the moment of writing, the Blackwater case is still pending. In the meantime, it should be kept in mind that the ATCA “anchor” the law of nations has been much debated. There was no general consensus on the interpretation of the law of nations in the ATCA context. Should it be interpreted as incorporating norms constituting customary international law, or only ius cogens norms such as torture and the above-mentioned war crimes, crimes against humanity, and genocide? Moreover, state interference can be an obstacle, while at the same time it may be a prerequisite to the applicability of the ATCA. For instance, in Kadic v. Karadzic111 the relevant US court qualified rape as a war crime only if committed with the involvement of a state (official). Otherwise, it could not fall within ATCA’s scope of the law of nations. In the above-mentioned Filartiga case it was already held that torture committed by officials is prohibited by universally accepted norms of international law, while in Kadic the relevant US court had to decide whether this norm extended to include non-state actors. The Court found that “torture and summary execution – when not perpetrated in the course of genocide or war crimes – are proscribed by international law only when committed by State officials or under color of law.”112 That would be a notion to be further challenged by victims of PMSC activities.

11.4.4 Administrative US Means Having discussed US criminal and tort law possibilities, it is worth mentioning, be it short, one US administrative law, relevant for the present issue: the 1976 US Arms Export Control Act.113 The Act allows the US President to control the import and export of defense-related services including over conducted by PMSCs. Companies 108 Estate

of Himoud Saed Abtan, et al. v. Blackwater Lodge and Training Center, Inc., et al., available at: http://ccrjustice.org/ourcases/current-cases/atban,-et-al.-v.-blackwater-usa,-et-al. 109 See for this argument also: Matthew C. Dahl, op. cit., pp. 21–22. 110 Ibidem, pp. 20–23. 111 Kadic v. Karadzic 70 F.3d 232 (2d. Cir. 1995). 112 Ibidem, I.A.2.(c). 113 22 U.S.C. § 2778 (U.S.C. Title 22, Chapter 39, Subchapter III, Military Export Controls).

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have to apply for a license before engaging in a contract with a state or other client in a foreign country. This mechanism allows the President to have an overview of the company before granting a license. Where the executive incorporates human rights concerns into the licensing system, the licensing system could be used as an additional tool for ensuring compliance with human rights standards.114 This system, however, offers no trigger mechanism to be initiated by victims where the government fails to deliver.115

11.4.5 In Conclusion to the US The overview – or rather: short impression – of US statutes and case law relevant for the PMSC issue as an example of regulation aimed at PMSCs at the national level shows at least two things: there are more possibilities for victims of illegal PMSC activities than one might think of at first sight, and there is a willingness to further adapt the legislation in order to include such activities. However, major effort, for instance initiated by new cases, is needed to further strengthen the chances for serious action against violators and redress for victims. Despite the possibilities available, it can be observed that the existing legal routes are scattered. There is a long way to go before justice is achieved for the victims of PMSCs. Moreover, as is the case in other states, the support of specialized lawyers, working for law firms or NGOs, is indispensible if victims are to stand a chance in holding PMSCs to account.

11.5 Overall Conclusions and Final Observations Although by far not a new phenomenon, it is clear that over the last couple of decades the use of PMSCs has been growing tremendously. They provide a growing variety of activities in times of conflict, many of them being supportive for the resolution of conflicts. The present article does not question the outsourcing of such tasks to PMSCs but focuses on accountability issues which arise when the activities of PMSCs lead to violations of international law resulting in victims either amongst the employees of the PMSCs themselves or within the societies within which they operate.

114 See

also Cottier, M. (2007). ‘Elements for Contracting and Regulating Private Security and Military Companies’, International Review of the Red Cross, 88, April, r. 653: “Regulating the export of services that may result in the use of force may contribute to promoting respect for international law by controlling who exports what services and where they are exported to, and by establishing standards that would hopefully marginalize disreputable companies and individuals. Additional reasons for a state to consider regulating the export of military or security services may include the possibility that the activities of companies or nationals from that state negatively reflect on its reputation.” 115 Also see, however, Drew Cullen, ‘ITT fined $100m for shipping night vision goggles to China’, available at: http://www.theregister.co.uk/2007/03/27/itt_fined_for_illegal_exports/.

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Without repeating all the (technical) conclusions we reached in the relevant sections, we would like to restate our underlying core finding: as the prime actor when it comes to accountability under international law is the state, its responsibility in relation to the behavior of PMSCs should not be interpreted in a minimalist way in order to escape as much responsibility as possible. Although of course we understand why states would be inclined to such a minimalist interpretation of their responsibility, it is vital that state responsibility should be viewed to include the protection of the interests of those who fall victim to violations of international law, either as employees of PMSCs or as victims of the activities of the PMSCs whose services are hired or otherwise made use of or profited from. The same goes, mutatis mutandis, for international organizations. Given the fact that states have the monopoly on the use of force – and rightly so – the rules of state responsibility should be interpreted in a broad way, in order to cover as good as one can and to a substantive level the negative outcomes of subcontracted use of force to the detriment of those who fall victim to it. Within both international humanitarian law and international human rights law applicable stepping stones can be found towards better protection and actual realization of victims’ rights, but there remains a long way to go before effective protection is realized. It has also become clear that some specific documents that at first sight seem most suitable to deal with the activities of PMSCs contain outdated and unworkable definitions which are not applicable to the present-day problems posed by PMSCs. This is the case with Additional Protocol 1 to the Geneva Conventions as well as the relevant UN and AU Conventions. These instruments are, no doubt, still relevant in many ways, but at the same time it should be clear that they leave important legal gaps. As is the case with the realization of human rights in general, realizing the rights of PMSCs’ victims requires national endeavors and national commitment. In this light the existing avenues for legal redress in the US are interesting. Victims might try to fill the accountability gap by utilizing these avenues in order to make clear that states are not allowed to become involved in gross human rights violations by privatizing wars, but it is clear that this often will be too high a task for such victims, even if they would join forces in terms of “collective action.” In the meantime, work being done by a variety of international supervisory bodies and courts is to our mind extremely helpful, either in the sense of further clarification of the standards or through their efforts to make clear in what way human rights are at stake in the activities of PMSCs by stressing that states should operate under the “human rights flag.” One reason to look at international human rights law has been the fact that international human rights law allows for a wide range of accountability mechanisms which is clearly extremely important from the perspective of the victim. Important is also the fact that human rights law regularly provides for the right to a remedy when a human right has been violated. Nevertheless, it should also be clear that the human rights treaties do not allow complaints about human rights violations by PMSCs; this can only be done indirectly, by addressing the state they belong to or on the territory of which the violations took place. In addition, even if states are “ordered” by the international human rights supervisory bodies to take measures in order to repair, in one way or another, the human rights

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violations conducted by PMSCs, there is still a long way to go for the victims of these activities to really get justice being done to them. It is an uphill struggle, having to fight against entities which are not only strong in military terms but in legal assistance as well. An uphill struggle, with many legal “sub-hills” to be climbed, but still: the recognition and identification of the problems is underway. National attempts such as those undertaken in the US, being a major client of PMSCs, are very helpful in that respect as well. The US discussions on regulation and the case law so far can be seen as a laboratory situation, which provides for clarifications and solutions that are relevant for other situations all over the world. Such national steps, set in a constructive and sometimes tense dialogue with international law, will lead to substantive progress for victims of illegal PMSC activities as well as for those PMSC employees who themselves fall victim to violations of international law conducted against them. Acknowledgments The authors wish to thank Eefje de Volder for her willingness to read and comment on an earlier draft. This article has benefited greatly from her lucid remarks. Naturally, any remaining mistakes are ours.

Chapter 12

Globalization and Victims’ Rights at the International Criminal Court Jo-Anne Wemmers and Anne-Marie de Brouwer

12.1 Introduction Globalization has brought with it not only new types of victimization, it has also introduced new, international criminal law and international criminal justice institutions such as the permanent International Criminal Court (ICC) in The Hague, the Netherlands. A unique characteristic of the ICC is its recognition of victims’ rights through victim participation and reparation. These rights are inspired in part by international instruments, such as the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. However, the UN Declaration is largely based on the needs of victims of conventional crime. In contrast to conventional criminal courts, the ICC deals with mass victimizations such as genocide. The large number of victims involved in the situations that the Court deals with, poses a number of organizational challenges. Moreover, one has to ask whether the needs of victims of mass victimization are the same or different from victims of conventional crime, including within more or less homogenous groups of victims. In this chapter we will look at the similarities and differences between the needs of these two groups of victims and examine the implications for the Court. In addition, suggestions will be made as to how the ICC could deal with such large numbers of victims involved in the proceedings before the Court.

12.2 Some Words on the ICC On July 1 2002, the ICC opened its doors in The Hague, the Netherlands. Since then, four situations (Democratic Republic of the Congo, Uganda, Darfur/Sudan and the Central African Republic) have been investigated by the Prosecutor with a total of thirteen individuals from these situations facing charges, of whom five currently on trial in The Hague. The idea of a permanent international criminal J.-A. Wemmers (B) École de criminologie, Université de Montréal, C.P. 6128 succursale Centre-ville, Montréal, Québec, Canada, H3C 3J7 e-mail: [email protected]

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court was proposed in the 1950s, following the ad hoc Tribunals in Nuremburg and Tokyo, which were set up following the Second World War to deal with German and Japanese war criminals. Then, for a very long time, the establishment of an international criminal court was politically unrealistic because of the Cold War. It was only after the fall of the Berlin Wall in 1989 that the question of an international criminal court re-emerged. The need for a permanent international criminal court was highlighted following the introduction of the ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) in the 1990 s. In 1998, after much debate and diplomacy, the international community finally agreed upon the Rome Statute, which established this permanent international criminal court. Article 5 of the Rome Statute stipulates that “the jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole.” It then goes on to identify four categories of crimes that fall under its jurisdiction: genocide, crimes against humanity, war crimes and the (still to be defined) crime of aggression.1 Articles 6–8 of the Rome Statute provide an overview of the kinds of acts that fall under these crimes. These include acts such as murder, torture and rape. The crimes over which the Court has jurisdiction affect, by their very nature, groups of people. A close reading of the definitions of these crimes in the Rome Statute, informs us that they need to have been committed with a specific intent to destroy a particular group (genocide) or that they have been committed as part of a widespread or systematic attack directed against a civilian population (crimes against humanity). The war crimes provision, however, does seem to provide an opening for prosecuting isolated war crimes as these crimes need to be committed “in particular” as “part of a plan or policy or as part of a large-scale commission of such crimes.” Thus, although the “in particular” reference in the war crimes provision gives the Court the possibility, it is not very likely that the Court will initiate prosecutions in isolated war crimes cases where only one individual is victimized. An isolated killing in a conflict situation, however serious for the victim, would not readily concern the international community. A large number of killings, targeting a specific ethnic or religious group and ordered by a top military official would, however, be of concern to the international community. Thus, because of the types of crimes that fall under its jurisdiction, the Court will generally only deal with crimes that affect a large number of victims. It is important to consider how the ICC is similar and how it is different from national criminal courts. In general, nation states are responsible for trying and punishing criminals. Typically, the country where the crime was committed has jurisdiction over offenses committed on its territory. For example, if someone commits a crime in Canada, it is up to the Canadian courts to try and punish that person. This is how it works for conventional crimes. But when crimes are committed within

1 The ICC Review Conference in 2010 has made considerable progress in further defining the act of agression. See the website of the ICC for the latest developments.

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the context of a conflict, a political element is introduced. The post-conflict government may not wish to prosecute those who committed offenses because many offenders may be members of the ruling party. A major force behind the introduction of the ICC was the desire to put an end to the impunity that many offenders enjoyed. Thus, when a state is not willing or not able to prosecute people accused of gross violations of human rights, the ICC can step in. National courts can sometimes deal with mass victimizations that were committed outside of their territory. In recent years, national criminal courts have prosecuted individuals for gross violations of human rights committed in another country. Recognizing the universality of human rights, countries such as Belgium and, more recently, the Netherlands and Canada, have used their national criminal courts to prosecute individuals, who were living in their country when they were arrested, for genocide, crimes against humanity, war crimes and torture committed in Rwanda. Thus, both the ICC and the national courts can deal with mass victimization. However, most of the crimes that national criminal courts handle are conventional crimes that often involve just one crime against one victim. Unlike conventional criminal courts, the ICC will almost always deal with atrocities committed against large numbers of victims. Victims’ rights within the ICC were inspired by legislation for victims of conventional crimes. Of particular importance is the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (Declaration), which was adopted in 1985 by the General Assembly of the United Nations.2 The Declaration contains provisions for victims regarding (1) access to justice (2) participation in the criminal justice process (3) reparation and (4) services for victims. Access to justice emphasizes the importance of treating victims with dignity and respect. It includes basic measures that are thought to facilitate access to justice such as providing victims information and notification. Victims need to be informed of what options are open to them (e.g. services, legal recourse) and they need to be notified of any new developments in their case. The Declaration also promotes victim participation in the criminal justice process. Concretely, Article 6b of the Declaration specifies that “the views and concerns of victims” should be allowed to be “presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused.” With respect to reparation, the Declaration recommends that victims be able to obtain reparation from their offender within the criminal justice process and encourages nations to provide state compensation for victims. The Declaration also emphasizes that victims should have access to medical, psychological, social and other services in order to help them deal with the aftermath of their victimization. Although Article 1 of the UN Declaration defines victims as “persons who, individually or collectively have suffered harm. . .” (emphasis added), it was primarily intended for victims of conventional crimes. This is apparent from its structure. The

2 Resolution 40/34, adopted by the General Assembly of the United Nations on 29 November 1985.

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Declaration contains two parts: Part A deals with victims of crime and Part B deals with victims of abuse of power. There are seventeen articles dealing with crime victims while there are only four articles in the section on victims of abuse of power. The Declaration was meant to inspire national criminal justice systems to be more responsive to victims’ needs. In 1985, the international community was still in the grasp of the Cold War and no one ever imagined that the Declaration would one day form the basis for victims’ rights at an international criminal court. Even the ad hoc Tribunals, which were created after the adoption of the Declaration, did not include victims’ rights. The inclusion of victims’ rights in the ICC is unique. However, this raises the question whether the rights contained in the Declaration apply equally to mass victimizations and whether these victims have different needs? And whether the ICC can deal with their needs?

12.3 The Effects of Victimization Victims’ needs are determined in part by consequences of the crime and by the victims’ resources. The effects of crime on victims are multiple and, in order to ascertain victims’ needs, we need to know how the individual was affected by the crime.3 We also need to know the extent to which the victim is capable of dealing with the consequences of the crime. For example, two victims of a fraud scheme might have each lost $1000. However, one victim may be able to absorb a loss of that magnitude while the other may not and, as a result, may be unable to buy groceries. Similarly, two robbery victims may experience very different needs depending on their situation. If, for example, one victim recently lost a close relative due to illness and is in the middle of a difficult divorce, while another victim is surrounded by very strong, positive relationships, the first victim will likely have more difficulty coping with the added stress of victimization than the second victim. Research on the effects of crime has stressed mental, psychological and social effects.4 There may of course also be physical and financial effects, however, these effects are not unique to criminal victimization whereas the psychological and social effects of victimization are. The psychological and social consequences of criminal victimization are different than other types of victimization such as accidents or natural disasters, because in the case of crime, someone deliberately or recklessly harmed the victim. Many researchers emphasize that it is this deliberate or manmade quality of criminal victimization that makes it different than other types of victimizations.5

3 Shapland, J. & Hall, M. (2007). ‘What Do We Know About the Effects of Crime on Victims?’ International Review of Victimology, 14, 175–217. 4 Ibid. 5 Shapland, J., Willmore, J. & Duff, P. (1985). Victims in the Criminal Justice System, Aldershot, Gower Publishing; Kirchhoff, G.F., ‘Victimology – History and Basic Concepts’, in: -Kirchhoff, G.F., Kosovski, E. & Schneider, H.J. (Eds.), (1994). International Debates of Victimology, Mönchengladbach, WSV Publishing, pp. 1–81.

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In their excellent review of the literature, Shapland & Hall6 report four psychological and social effects of victimization that are commonly found in the literature. Firstly, victims often suffer shock and a loss of trust or faith in society. Shock is typically short-term, lasting days or weeks. However, loss of trust or faith can last for years. Loss of trust or faith in others can be general, or specific, linked to the place where the crime occurred or the social group of the offender (ethnic communities). Secondly, victims often experience guilt at having become the victim of crime. This, in turn, may feed anger and fear. Victims often feel that they could and should have prevented the crime from occurring, even if this was logically impossible. They blame themselves for becoming a victim. Thirdly, victims may suffer psychological effects, including depression, fear, and anger. Often these reactions are short-term; however, they can last for months or even years, sometimes developing into Post Traumatic Stress Disorder (PTSD). Fourthly, victimization often has social effects such as changes in lifestyle to avoid victimization. Examples include moving, not going out at night, or not going out alone. However, the literature on the effects of victimization is largely based on conventional victimization. How might the consequences of mass victimization be similar or different from conventional victimization? According to Albrecht and Kilchling, in the case of mass victimization (i.e. terrorism) victims have essentially the same needs as victims of other violent crimes.7 Victimization, be it conventional crime or gross violations of human rights, affects, first of all, the individual. To this extent, they can evoke similar reactions in victims, namely, shock, guilt, anger, depression, fear, feelings of powerlessness, vulnerability and suspicion of others. Like other traumatic victimizations, the impact of mass victimization can be long lasting. German research with adults who experienced the Second World War as children reveals that the negative impact of war can last a lifetime. Sixty years after the Second World War, 11% of the former children of this World War continued to experience PTSD-symptoms.8 In Rwanda, 70% of women who survived multiple rapes during the genocide turned out to be HIV-positive.9 Certain types of mass victimization, however, target a specific group of people. An example is genocide or war crimes committed against a particular social or ethnic group. When a specific social, religious or ethnic group is targeted, these crimes constitute an attack on the individual’s social identity as well as on them personally.

6 Supra

n. 3. H.-J. & Kilchling, M. (2007). ‘Victims of Terrorism Policies: Should victims of terrorism be treated differently?’ European Journal on Criminal Policy and Research, 13, 1–2 13–31. Letschert, R.M., Staiger, I. & Pemberton, A. (2010). Victims of Terrorism, Towards a European Standard of Justice, Dordrecht, Springer Press. 8 Kuwert, P. Spitzer, C., Träder, A., Freyberger, H. & Ermann, M. (2007). ‘Sixty years later: Posttraumatic stress symptoms and current psychopathology in former German Children of World War II’, International Psychogeriatrics, 19, 5 955–961. 9 Brouwer de, A. & Ka Hon Chu, S. (2009). The Men Who Killed Me: Rwandan Survivors of Sexual Violence, Vancouver, Douglas & McIntyre, p. 11. 7 Albrecht,

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Social psychologists, like Henri Tajfel,10 argue that identity is defined in a social context and that people have a personal identity, which is unique to them, as well as a social identity, which is based on their membership in social groups. Members of that group or community may also feel victimized regardless of whether or not they themselves experienced any direct victimization. The victim-witnesses who testified at the ICTY, often wanted to speak not only about the wrongs they personally suffered but also those endured by their social group.11 Crimes that target a person’s social identity affect the individual, their family and their community. Feeling that their social identity has been targeted, members of the targeted group may experience a wide range of emotional reactions including anger, fear, sadness, feelings of powerlessness, vulnerability and suspicion of others.12 Although some researchers argue that the predominant emotional responses and behavioral coping responses of hate violence victims are similar to those of victims of other types of personal crime,13 others argue that victims’ reactions to hate-motivated crimes are different.14 Racial victimization is considered by some authors to be more debilitating than other types of victimization. Racism has been found to be a risk factor in the development of PTSD.15 Some authors believe that racism, in and of itself, is a form of trauma.16 There is some evidence that, compared to other crime victims, victims of hate crimes are more likely to rate their crimes as very serious.17 A survey conducted by the National Institute Against Prejudice and

10 Tajfel,

H. (1982). Social Identity and Intergroup Relations, Cambridge, Cambridge University Press. 11 Stover, E. (2005). The Witnesses: War Crimes and the Promise of Justice in The Hague, Philadelphia, University of Pennsylvania Press. 12 Barnes, A. & Ephross, P. (1994). ‘The Impact of Hate Violence on Victims: Emotional and Behavioral Responses to Attacks’, Social Work, 39, 3, 247–251; Weiss, J. (1997). ‘Working with Victims of Ethnoviolence’, in: Greif, G. & Ephross, E. (eds.) Group Work with Populations at Risk, New York, NY, Oxford University Press, pp. 121–133; Craig-Henderson, K. & Sloan, R. (2003). ‘After the Hate: Helping Psychologists Help Victims of Racist Hate Crime’. Clinical Psychology: Science and Practice, 10, 4, 481–490; Silver, W., Mihorean, K. & Taylor-Butts, A. (2004). ‘Hate Crime in Canada’, Juristat, Canadian Centre for Criminal Justice Statistics, 24, 4. 13 Barnes and Epross, supra n. 11. 14 Craig-Henderson and Sloan, supra n. 11. 15 Schneider, K., Hitlan, R. & Radhakrishnan, P. (2000). ‘An Examination of the Nature and Correlates of Ethnic Harassment Experiences in Multiple Contexts’, Journal of Applied Psychology, 85, 1, 3–13; Loo, C., Fairbank, Scurfield, R. Ruch, L. King, Adams, l. (2001). ‘Measuring Exposure to Racism: Development and Validation of a Race-Related Stressor Scale (RRSS) for Asian American Vietnam Veterans’, Psychological Assessment, 13, 4, 503–520. 16 Bryant-Davis, T. & Ocampo, C. (2005). ‘Racist Incident-Based Trauma’, The Counseling Psychologist, 33, 4, 479–500; Bryant-Davis, T. & Ocampo, C. (2005). ‘The Trauma of Racism: Implications for Counseling, Research and Education’, The Counseling Psychologist, 33, 4, 574–578. 17 Garofalo, J. (1997). ‘Hate Crime Victimization in the United States’, in: Davis, R., Lurigio, A. & Skogan, W. (eds.) Victims of Crime, 2nd edition, Thousand Oaks, CA, Sage Publications, pp. 134–145.

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Violence18 found that victims of racial violence experienced a greater number of negative psycho-physiological symptoms than victims of random violence. These included feeling depressed or sad, feeling more nervous than usual, having trouble sleeping and feeling very angry. Victims of racial violence also reported a greater number of social and behavioral changes than victims of random violence, such as moving to another neighborhood, buying or carrying a gun, or taking a self-defense class. Fear is another common reaction among victims of racial victimization. People who report having previously experienced a hate crime are four times more likely to be worried about suffering subsequent hate crime victimizations than those who have not been victimized (19% vs. 4% respectively).19 Garofalo20 found that victims of hate-motivated personal crimes were less likely than other crime victims to report being angry or mad as their predominant response. Instead, he found that victims of hate-motivated personal crimes were more likely than other crime victims to report being frightened or scared as their predominant response. Importantly, when victims are targeted because of their social group, they are not only afraid for themselves, they are also afraid for their family.21 Barnes & Ephross22 found that 51% of the victims of hate violence in their sample experienced fear that their family or they personally would be injured. Although criminal victimization may impact one’s social relations, crimes that target a specific group will also affect intergroup relations. This is unique to attacks upon one’s group identity. Survivors of racist incidents, for example, may have difficulty trusting and connecting with those who are similar to their perpetrators.23 According to Craig-Henderson & Sloan,24 victims of hate crimes may be especially likely to attribute their victimization to harmful motives that they believe are harbored by all members of the perpetrator’s social group. Thus, they may be more likely to generalize the risk of victimization to others. Also, believing that one is being attacked for how one looks, or for one’s identity, can create an ongoing level of fear that one is forever at risk.25 An underestimated aspect of racial victimization is how the ripple effects of racial victimization manifest themselves. Weiss26 gives an example of how community members socially isolated a victim in the hope that

18 Study

cited in Weiss supra n. 11. et al., supra n. 11. 20 Supra n. 16. 21 Weiss, J. (2005). ‘Working with Victims of Hate Crimes’, in: Greif, G. & Ephross, P. (eds.), Group Work with Populations at Risk, 2nd edition, New York, NY, Oxford University Press, pp.197–211. 22 Barnes & Ephross, supra n. 11. 23 Craig-Henderson & Sloan, supra n. 11; Bryant-Davis & Ocampo, supra n. 15. 24 Craig-Henderdson & Sloan, supra n. 11. 25 Weiss, supra n. 11. 26 Ibid. 19 Silver

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by not associating with the victim they would reduce their own risk of victimization. Such reactions augment the victim’s suffering while entrenching fear in the community. It is important to realize that crimes that target a specific group, not only affect the individual victim but also other group members. In particular, fear can be contagious. Victims may worry about the safety of their family members and family members may worry as well.27 While family members are affected by criminal victimization as well28 the impact of racial victimization on family members may be particularly acute due to their shared social identity. The trauma of extreme racial victimization, such as the Holocaust, can be transmitted from one generation to the next.29 Thus, people who were not even born at the time of the victimization can inherit the trauma from their parents and even grandparents.30 Besides the individual and their family, these crimes convey a message of fear to all members of the community to which the specific individual belongs. Being a member of a target group may result in symptoms caused by awareness of potential victimization and the necessity of guarding against it. This has been identified as vicarious traumatization effect.31 Witnessing, experiencing second-hand, or hearing about racist crimes that victimize others may cause secondary traumatic stress, causing denial, anger, sadness and grief.32 Similarly, research with refugees identifies three categories of victims: (1) direct victims, who experienced a victimization directly (2) family members of direct victims and (3) people who were not victimized personally and whose family members were not victimized but who were surrounded by news of other people being victimized and lived in fear of victimization. The latter group is the largest group and, like the direct victims, can experience PTSD.33 With regard to mass victimization, the large number of victimizations means that for many people victimization will not be a single event. Instead they will have multiple victimizations, both direct and indirect. A victim may, for example, experience multiple rapes, but may also witness the death and torture of family

27 Bowling,

B. (1994). ‘Racial Harassment in East London’, in: Hamm, M. (ed.), Hate Crime: International Perspectives on Causes and Control, Cincinnati, OH, Anderson Publishing Company, pp. 2–36; See also Barnes & Ephross, supra n. 11. 28 Baril, M. (1984). L’envers du crime. Cahier no. 2, Montréal, Centre international de criminology comparée, Université de Montréal. 29 Danieli, Y (1998). International Handbook of Multigenerational Legacies of Trauma, New York, Plenum Press; Barankowsky, A., Young, M., Johnson-Douglas, S., Williams-Keeler, L. & McCarrey, M. (1998). ‘PTSD Transmission: A Review of Secondary Traumatization in Holocaust Survivor Families’, Canadian Psychology, 39, 4, 247–256. 30 Danieli, supra n. 28. 31 Craig-Henderson & Sloan, supra n. 11. 32 Supra n. 15. 33 Westermeyer, J. & Williams, M. (1998). ‘Three Categories of Victimization Among Refugees in a Psychiatric Clinic’, in: Jaranason, J.M. & Popkin, M. (eds.), Caring for Victims of Torture, Washington, DC, American Psychiatric Association, pp. 61–87.

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members and experience loss of housing, land and other possessions. The impact of multiple victimization is cumulative.34 Before the victim has time to recover from the initial victimization, a new victimization occurs. The victim essentially suffers trauma on top of trauma. Even if one incident alone is not traumatizing, multiple micro-aggressions can build to create an intense traumatic impact.35 Similarly, research with victims of war crimes finds that if in addition to having witnessed the atrocities of war, children are also displaced and living in refugee camps, they are more likely to suffer PTSD than children who have similarly witnessed war but continue to live at home in villages and cities.36 Hence, at the level of the individual who has been victimized, mass victimization may impact the individual much like conventional crimes do. Victims may be affected physically, psychologically, financially and socially. However, crimes that target a specific group, because of their very nature, will have repercussions at the level of the victim’s family as well as their community that conventional crimes do not. Also, the large scale of mass victimization means that people are often exposed to multiple traumas that can add up, augmenting the impact of victimization and reducing victims’ ability to cope.

12.4 Prioritizing Needs Some of these consequences will translate into needs depending on the circumstances. Research with crime victims shows that victims’ needs fall under five categories: (1) medical needs (2) financial needs (3) need for protection (4) need for support in order to help them deal with the psychological effects of their victimization (5) need for recognition and respect in the criminal justice system.37 These needs are so well-known that they form the basis for the recommendations found in the UN Declaration. But do they apply equally to victims of mass victimization? When it comes to mass victimization, it is important to bear in mind the vast needs that exist within the society. Because of the sheer number of victims affected by crimes such as genocide or war crimes, the aggregate consequences of mass victimization for the communities involved stretch the imagination. Added altogether, the total sum of the financial damages suffered by all of the victims could be billions of dollars. It is simply impossible to think that all of the victims could receive full financial compensation for the material losses suffered. Beyond the direct losses, one cannot forget the costs to society when large numbers of the population cannot work due to injuries sustained as a result of their victimization. These indirect 34 Shaw,

M. (2001). ‘Time Heals All Wounds?’ in: Farrell, G. & Pease, K. (eds.) Repeat Victimization. Crime Prevention Studies, vol. 12, Monsey, NY, Criminal Justice Press, pp. 218–233. 35 Supra n. 15. 36 Thabet, A.A.M. & Vostanis, P. (1999). ‘Stress Reactions in Children of War’, Journal of Child Psychology and Psychiatry, 40, 3, 385–391. 37 Wemmers, J. (2003). Introduction à la victimologie, Montreal, Les presses de l’Université de Montréal.

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losses will affect not only the present population but also generations to come as the economic future of the region is crippled. Moreover, prior to the victimization, the society may have already been suffering from mass poverty and unemployment. All four situations that are currently before the ICC involve developing countries. Thus, in the case of mass victimization, the needs within the society are exponential. Because the needs within a society that has suffered mass victimization are seemingly endless, it is important to bear in mind that certain needs are more important than others. Maslow38 identified a hierarchy of needs. Only when a person’s basic needs are satisfied can they move on to a higher level of awareness. According to Maslow, people first of all have to satisfy their basic physiological needs. This means things like food and shelter as well as medical care. A victim who has lost everything and is unable to work due to injuries suffered as a result of their victimization will, in the first place, possibly need medical care for their injuries as well as food for themselves and their family and a place to stay while they are healing. The second level of needs identified by Maslow is safety. People need to feel safe and secure. The third and fourth levels of needs are a feeling of belonging or love and self-esteem. Informal support can provide victims with a sense of feeling loved and accepted. Once victims’ need for support has been met, recognition and information from the criminal justice system can reinforce their self-esteem. While Maslow’s hierarchy of needs was developed independent of victimology, it is important to note the convergence between the needs identified by Maslow and those mentioned above. Thus, in a crisis situation, victims will focus first on their basic physiological needs, forgetting about other, higher-level needs until their rudimentary needs have been met. Victims need to be able to eat and to sleep. If injured, victims need medical attention. In societies where access to medicine is difficult and costly, victims may be unable to get the medical help that they need. Furthermore, during conflict and post-conflict, medical care is almost non-existent. Crime victims’ psychological needs may be more challenging because they are less obvious; however, they can be just as debilitating as physical injuries. In many societies, the extended family will provide support and assistance to those in need, however, in the case of genocide, there may be very little left of the extended family to offer help. In addition, support services that might have been in existence before the conflict, are often destroyed during the conflict. As a result, international aid offering medical aid as well as food and shelter to afflicted areas is of great importance. Once victims’ basic physiological needs have been met, their need for safety and security becomes overriding. Victimization can rob people of their sense of security, leaving them feeling vulnerable. Victims can be afraid of revictimization in general or revictimization by their aggressor in particular. An important challenge facing post-conflict societies is how to live together after mass victimization. This has been a major issue in both the Former Yugoslavia as well as Rwanda. Many

38 Maslow, A.H. (1968). Toward a Psychology of Being, 2nd edition, New York, NY, Van Nostrand

Reinhold.

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victims move and do not return to their homes, out of fear.39 Victims who act as witnesses before the court may even face more risks for both themselves and their family.40 Protective measures meant to shield the identity of the victim are available in many jurisdictions, including the ICC. For example, victims can testify behind a screen or via closed-circuit television in order to avoid being seen by the offender. Publication bans that prohibit identification of the victim in the media are meant to protect the victim’s privacy. The risks for witnesses are huge and the ICC offers a witness protection program, which, if necessary, can give the victim and his family a new identity and a new life in a new country. However, the experiences of victimwitnesses who testified before the ad hoc Tribunals show that such measures are not foolproof and that despite protective measures, victims may continue to have real concerns about their safety.41 The next level of needs identified by Maslow is a feeling of belonging and acceptance. These needs may be particularly acute in the case of crimes that target a particular social group because the very nature of these crimes is to exclude and reject a group of people because of their social identity. Most often, victims find the support they need in their informal networks.42 But sometimes, victims’ resources are insufficient to deal with the effects of their victimization and then they may need professional support, such as a counselor or a psychologist. Victims of mass victimization may need special support more often than victims of conventional crime because of the cumulative effects of multiple victimizations: family and friends may be dead or suffering from the effects of their own victimization and unable to help others. There is in addition a lack of support services in the country itself – destroyed by the conflict or at least the professionals in that organization were killed. Often support services/counseling is taken over by NGOs set up after the conflict that try to fill in these gaps, which is of course very difficult. In addition to acceptance, victims seek recognition and validation of their victimization.43 Criminal victimization implies that someone is to blame and this is often contentious. Yet, it is central to criminal victimization: an intentional act by one person against another. Crime victims seek recognition and validation from others, including criminal justice authorities. Hence, crime victims place great importance

39 Parmentier,

S. & Weitekamp, E. (2007). ‘Political Crimes and Serious violations of Human Rights: Towards a Criminology of International Crimes’, in: Parmentier, S. & Weitekamp, E. (eds.), Crime and Human Rights. Sociology of Crime, Law and Deviance, vol. 9, Amsterdam, Elsevier, pp. 109–144. 40 Brouwer, de A. (2005). Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR, Antwerp – Oxford, Intersentia, pp. 232–234. 41 Supra n. 10, 39. 42 Denkers, A.J.M (1996). Psychological Reactions of Victims of Crime: The Influence of PreCrime, Crime and Post-Crime Factors. Doctoral dissertation. Amsterdam, Vrije Universiteit. 43 Shapland, et al., supra n. 4; Herman, J.L. (2003). ‘The Mental Health of Crime Victims: Impact of Legal Intervention’, Journal of Traumatic Stress, 16, 2, 159–166.

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on information and notification; that is being regularly informed about developments in their case. They also seek consideration of their views and concerns by authorities. In searching for recognition and validation, victims want to be included in the criminal justice process. When it comes to mass victimization, in addition to recognition of the effects of victimization on them personally, there is also a need for recognition of the victimization of the group. This may be observed in a desire to talk about the impact of crime on the group in addition to personal consequences and the desire to obtain reparation and validation for the group.44 In addition to the direct victims, mass victimization that targets a specific social group, such as genocide, will impact the victim’s family as well as the other members of the victim’s community. So far victims’ needs have been discussed from the position of the individual who has experienced direct victimization. These other two categories of victims will similarly experience needs based on the impact of the victimization and the availability of resources. However, because they are not direct victims, they might find it more difficult to have access to resources.

12.5 The ICC and Victims’ Rights The Rome Statute and its accompanying Rules of Procedure and Evidence are generally characterized as being innovative in the area of victims’ rights. The ICC is the first court in the history of international criminal prosecutions to allow victims to participate in the proceedings as victims and to request reparation. The Rome Statute primarily provides for three types of victims’ rights: (1) participation, (2) protection and (3) reparation.45 As mentioned above, participation, protection and reparation are well-known items from, amongst other things, the Declaration. Largely inspired by this declaration and other international instruments, numerous national jurisdictions provide a role for victims to play in criminal trials, albeit in different forms and degrees. The ICC approach to victims’ rights is therefore also drawn from these national jurisdictions, in particular from civil law jurisdictions. In contrast, the role of victims before the ICTY and ICTR is hardly existent, if at all. The lack of victims’ rights at these Tribunals, however, sparked the ICC negotiators to incorporate such rights in the Rome Statute as it was generally felt that victims’ rights to participate in the proceedings and being able to receive reparation for the harm suffered would bring the proceedings closer to the ones who had suffered.46 Before discussing the role of victims at the ICC, the manner in which the term victims is used at the Court needs clarification. The term victims is defined in Rule 85 of the Rules of Procedure and Evidence as follows: “(a) ‘Victims’ means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the court. (. . .)” The ICC definition of victims therefore 44 Supra

n. 10. inter alia, Garkawe, S. (2003). Victims and the International Criminal Court: Three Major Issues, International Criminal Law Review, 3, 345–67. 46 Supra n. 10. 45 See

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embraces all who have suffered harm, which may include immediate family members or dependants of those who have suffered harm.47 The definition thus strongly resembles the broad definition of victims laid down in the Declaration (Principle 8).

12.5.1 Participation of Victims Participatory rights of victims are explicitly found in quite a number of ICC provisions.48 In their capacity as participants, victims may, inter alia, present either themselves or through a legal representative, their views and concerns, where their personal interests are affected (Article 68(3) of the Rome Statute). This provision is a more general rule on victim participation – which language strongly suggests the influence of the wording contained in Article 6(b) of the Declaration – and reads as follows: where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.

In order to participate as a victim the Court decided in the Lubanga case that there should be a link between the crimes suffered by the victim and the charges against the accused.49 The modalities of participation leading up to and during trial, for example, include access to the public record; tender and examine evidence if this assists in the determination of the truth, and if the Court has requested the evidence; access to hearings, status conferences and trials as well as to file written submissions; and to make opening and closing statements.50 The application and participation process for victims brings with it some interesting challenges for the Court, especially in light of the large number of victim 47 In

the Lubanga Appeals Chamber Decision of 11 July 2008, it was stated that the harm suffered by victims under Rule 85(a) of the Rules of Procedure and Evidence need to be personal harm which could be either direct or indirect. See The Prosecutor v. Thomas Lubanga Dyilo, Situation in the DRC Judgement on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, ICC-01/04-01/06 OA 9 OA 10, Appeals Chamber, 11 July 2008 (hereafter Lubanga Appeals Chamber Decision of 11 July 2008), para. 32. 48 See inter alia, Articles 15(2), 15(3), 19(3), 65, 68(3), 75(3), 82(4) of the Rome Statute and Rules 85–93 of the Rules of Procedure and Evidence. 49 See Situation in the DRC, ICC-01/04-101-tEN-Corr, Pre-Trial Chamber I, 17 January 2006, paras. 77–101; and Lubanga Appeals Chamber Decision of 11 July 2008 (para. 62 and 64), which overturned the Lubanga Trial Chamber Decision of 18 January 2008, which held that victims do not necessarily need to bring evidence of harm suffered as a result of the charges confirmed against the accused, but that it would also suffice when a link to the evidence being brought against the accused could be established. See The Prosecutor v. Thomas Lubanga Dyilo, Situation in the DRC, ICC-01/04-01/06, Trial Chamber I, 18 January 2008 (hereafter Lubanga Trial Chamber Decision of 18 January 2008), paras. 93, 95. 50 Lubanga Trial Chamber Decision of 18 January 2008, paras. 101–122.

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applicants. Although Rule 90 of the Rules of Procedure and Evidence offers the possibility of appointing common legal representatives in order to streamline the proceedings, the question of how many such representatives can be appointed without endangering the interests of victims as well as the effectiveness and fairness of the trial remains. For example, groups of victims that may seem homogenous at first sight may in reality not be so homogenous. A group of victims of sexual violence may, for instance, come from different regions and/or may have been sexually violated by perpetrators of different ethnicity. One possible solution could be to organize subgroups within one more or less homogenous group of victims.51 It is, however, suggested that the Court should not appoint too many common legal representatives in a certain proceeding at the same time as this would most probably lead to unacceptable delays and fragmentation of the trial.52 A balance will therefore need to be found in between appointing a limited number of common legal representatives and, at the same time, ensuring the distinct interests the victims may have. One needs to bear in mind that the crimes over which the Court has jurisdiction affect, by their very nature, large groups of people. While accurate statistics are hard to find, it is estimated, for example, that in the DRC 500,000 women have been raped during the armed conflict there.53 In Darfur alone it is estimated that there are 2 million victims.54 Yet, by the end of October 2008, the Court had received a total of 960 applications from persons seeking to participate as victims in the ICC proceedings in one of the situations or cases, mostly from persons from the DRC.55 In addition to receiving relatively few applications, even fewer victims have been granted permission to participate in proceedings. By the end of December 2008 – with more victim applications received by the Court – only 239 victims (25%) had been authorized by the ICC to participate in the proceedings.56 The low number of participating victims to date, in light of the crimes the Court is dealing with, is a cause for worry and is indicative of the Court’s complicated application process: the considerable length of the forms (17 and 19 pages for the participation and reparation forms, respectively) and the amount of (legal) detail needed in order to complete

51 Brouwer,

de A. & Groenhuijsen, M. (2009). ‘The Role of Victims in International Criminal Proceedings’, in: S. Vasiliev and G. Sluiter, International Criminal Procedure: Towards a Coherent Body of Law, London, UK, Cameron May, p. 171. 52 See Groenhuijsen, M. (2009). ‘Victims’ Rights and the International Criminal Court: The Model of the Rome Statute and its Operation’, in: van Genugten, W., Scharf, M. & Radin, S. (eds.), Criminal Jurisdiction 100 Years after the 1907 Hague Peace Conference, The Hague, T.M.C. Asser Press, pp. 306–307. 53 Chritstophe Boltanski, ‘Congo: Le viol comme arme de guerre’, Le Nouvel Observateur, December 2008: http://hebdo.nouvelobs.com/hebdo/parution/p2300/articles/a389902-congo_le_ viol_comme_arme_de_guerre.html (Downloaded 30 June 2009). 54 See website Sudan Watch at: http://sudanwatch.blogspot.com/2004/11/number-of-darfurvictims-2-million-and.html (last accessed 1 July 2009). 55 Assembly of States Parties, Report on the Activities of the Court, ICC-ASP/7/25, 29 October 2008, para. 8. 56 Women’s Initiatives for Gender Justice, Gender Report Card 2008, p. 53.

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the application forms is troublesome for many victims.57 The fact that only four victim applicants participated in the Lubanga confirmation of charges hearing was partly due to the complexity of the application procedure and the absence of legal aid.58 Legal aid for indigent victims – which most victims are – is only provided in those cases in which victims have been recognized as victims, which may well be too late in the proceedings. Without legal aid from the initial application stage, for many victims it is impossible to successfully apply.59 Providing legal aid from the start would therefore help in receiving fewer incomplete applications as well as more applications. Not only at the level of filling in the application forms do problems arise; the Chamber’s decision-making process on whether or not to recognize the applicants as victims is not much better. Many victim applicants, who submitted their applications years ago, are still waiting for a decision of the Chamber today.60 This development seriously causes prejudice towards victims and their right to participate in the proceedings. Offering victims an opportunity to apply for standing in the proceedings and then disappointing them by failing to meet their expectations is a powerful source of potential secondary victimization. In order to fill in some of these gaps, it may be wise to develop more regulation in this field rather than to depend so heavily on case law.61 Furthermore, regular notification to victim applicants on

57 See

further Glassborow, K. (2007). Victim Participation in ICC Cases Jeopardised, Institute for War & Peace Reporting, AR No. 148, 20 December 2007. 58 Legal Representative Luc Walleyn, the legal representative for victims a/0001/06, a/0002/06 and a/0003/06, mentioned in this regard: “Your Honours, I think this is a very important issue, and I emphasise I would like the court to give out a message that will give confidence to the victims who need to be placed in a position where they feel safe constantly. It is not by chance that a few victims are participating in these proceedings, whereas they have thousands of victims. There are thousands of children who were recruited into these militias. The reason is because it is not easy do make these – to follow these procedures, and at each stage of the procedure the victims have to go through a lot.” See Transcript, Prosecutor v. Lubanga Dyilo, Situation in the DRC, ICC-01/04-01/06, Pre-Trial Chamber I, 4 December 2007, p. 49. 59 See K. Glassborow, Victim Participation in ICC Cases Jeopardised, Institute for War & Peace Reporting, AR No. 148, 20 December 2007. It seems furthermore difficult for victims to prove that they are indigent as the Court does not seem to use, – despite the context in which victims in conflict or post-conflict situations are living – a presumption of indigence. See Registrar’s Decision on the Indigence of Victims a/0016/06, a/0018/06, a/0021/06, a/0025/06, a/0028/06, a/0031/06, a/0032/06,a/0034/06, a/0042/06, a/0044/06, a/0045/06, a/0142/06, a/0148/06, a/0150/06, a/0188/06, a/0199/06, a/0228/06, Situation in the DRC, ICC-01/04-490-tENG, Pre-Trial Chamber I, 26 March 2008, in which the Registry indicated that a number of victims would be provisionally considered indigent until such time a full inquiry into their means could be undertaken. 60 The figure of 960 applications from persons seeking to participate as victims in the ICC proceedings given by the Court at the 2008 Assembly of States Parties was the number of applications received by the Court from the moment the Court started operations. See Assembly of States Parties, Report on the Activities of the Court, ICC-ASP/7/25, 29 October 2008, para. 8. See also Human Rights Watch, Courting History: The Landmark International Criminal Court’s First Years, July 2008, pp. 200–201. 61 Brouwer, de A. & Groenhuijsen, M. (2009). ‘The Role of Victims in International Criminal Proceedings’, in: S. Vasiliev and G. Sluiter, International Criminal Procedure: Towards a Coherent Body of Law, London, CMP Publishing, Supra n. 51 pp. 203–204.

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the different stages of the proceedings is crucial in order for them to have and keep faith in the ICC proceedings.62

12.5.2 Protection of Victims and Witnesses The main provisions governing the protection of victims and witnesses in the Rome Statute are Articles 68 (Protection of the victims and witnesses and their participation in the proceedings) and 69(2) (Evidence). Rules 87 (Protective measures) and 88 (Special measures) of the Rules of Procedure and Evidence further elaborate on the appropriate measures that can be taken for the protection of victims and witnesses.63 On the basis of these provisions, three main categories of protective and special measures for victims and/or witnesses can be discerned, namely, those aimed at: (1) protection from the accused and his counsel (also referred to as anonymity measures); (2) protection from the press and the public, such as the use of pseudonyms for victims and witnesses (also referred to as confidentiality measures and the most commonly used protective measures by the Court); and (3) protection from retraumatization, such as measures that avoid face-to-face confrontation with the accused. Protection from retraumatization is important to all victims, but especially to children and victims of sexual violence. In choosing the applicable protective and special measures, the Rome Statute requires that the Court take into account all relevant factors, including age, gender and health, and the nature of the crime, in particular in case of crimes involving sexual or gender violence or violence against children (Article 68(1) of the Rome Statute and Rule 86 of the Rules of Procedure and Evidence). The Rome Statute furthermore states that protective and special measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial (Articles 68(1) and 67 of the Rome Statute). In addition, these measures must be taken in particular during the investigation and prosecution of the crimes (Article 68(1) of the Rome Statute) and therefore mainly minimize the risks the witness runs after testimony. However, even in the post-trial phase, the ICC has taken up certain obligations to ensure victims’ and witnesses’ safety, including by relocating them (Rules 16(4) and 17 of the Rules of Procedure and Evidence). The Trial Chamber in the Lubanga case underlined that “protective measures are not favors but are instead the rights of victims, enshrined in Article 68(1) of the Statute.”64 The Chamber also held that “protective and special measures for victims

62 Wemmers, J. (1999). ‘Victim Notification and Public Support for the Criminal Justice System’, International Review of Victimology, 6, 3, 167–178. 63 The significance of victim and witness protection is furthermore recognised on several other occasions in the Rome Statute and Rules of Procedure and Evidence. See inter alia, Article 57(3)(c). Rules 16–19, Rule 50(1). Rule 52(1). Rule 59, Rule 67, Rule 68, Rule 76(4). Rule 77, Rule 81, Rule 84, Rule 86, Rule 105(3), Rule 106(2), Rule 107(3), Rule 112(4), Rule 119(3), Rule 121(10) and Rule 131(2). 64 Lubanga Trial Chamber Decision of 18 January 2008, para. 129.

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are often the legal means by which the Court can secure the participation of victims in the proceedings.”65 The protection of victims and witnesses is indeed a delicate matter, especially in the often volatile situations the Court is dealing with and the sometimes perceived connection of victims with the ICC.66 Unlike the Tribunals, the ICC needs to protect not only witnesses giving testimony during trial, but also the victims participating in the proceedings. Victim participation, in particular, will most of the time mean that a large number of victims will need protection. In light of the fact that the Court is held to provide protection to victim applicants from the moment their applications are received by the Court,67 this brings with it an enormous burden upon the Victims and Witnesses Unit (VWU) that is in charge of their protection.68 It is still unclear how such protection can be and is being provided by the Court.69 Moreover, although anonymity as a protective measure should not be easily granted – particularly in light of the rights of the accused to a fair trial – the Trial Chamber in the Lubanga case held that there could be circumstances in which recourse to it might be needed and possible.70 The Chamber was referring to “the particularly vulnerable position of many of these victims, who live in an area of ongoing conflict where it is difficult to ensure their safety,” but also held that “the greater the extent and the significance of the proposed participation, the more likely it will be that the Chamber will require the victim to identify himself or herself.”71 The suggestion by a Legal Representative in the same case that one key person of a group of victims reveals his identity to the benefit of the other – anonymous – victims might also be a good solution to tackle the problem of protecting large numbers of victim participants.72

65 Ibid.,

para. 128.

66 See inter alia, Lubanga Trial Chamber Decision of 18 January 2008, para. 130 (the Chamber held

that it is “conscious of the particularly vulnerable position of many of these victims, who live in an area of ongoing conflict where it is difficult to ensure their safety”); and Human Rights Watch, Courting History: The Landmark International Criminal Court’s First Years, July 2008, p. 153 (“Human Rights Watch’s research in situation countries indicates that real threats have been made against victim participants and against the intermediaries who help to facilitate their interaction with the Court”). 67 Lubanga Trial Chamber Decision of 18 January 2008, para. 137. 68 See further Brouwer, de A. & Groenhuijsen, M. (2009). ‘The Role of Victims’, in: International Criminal Procedure: Towards a Coherent Body of Law, London, CMP Publishing, Supra n. 51 pp. 172–187. 69 Victims’ Rights Working Group Bulletin, Access: Victims Rights Before the International Criminal Court, Issue 13, Winter 2008, pp. 2–3. 70 Lubanga Trial Chamber Decision of 18 January 2008, paras. 130–131. 71 Ibid., para. 131. 72 See Transcript, Prosecutor v. Lubanga Dyilo, Situation in the DRC, ICC-01/04-01/06-T-57, Trial Chamber I, 29 October 2007, pp. 31–32.

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12.5.3 Reparation The ICC reparation regime is laid down in Articles 75 and 79 of the Rome Statute and further elaborated in Rules 94–99 of the Rules of Procedure and Evidence. The reparation regime for victims can be linked to the various stages of the trial. The Court can pass an order awarding reparation on the basis of the conviction of the accused. In addition, the creation of a Trust Fund for Victims allowed for a broader system of reparation, which can be accessed at any stage in the trial, including the investigation stage. The Trust Fund for Victims will therefore not only implement reparation awards from the Court, it may also – upon notification to and approval from the Court – implement programs that will assist victims of mass crimes in terms of physical and psychological rehabilitation as well as material support. As the Trust Fund for Victims can already assist victims whose cases may not be taken up by the Prosecutor in an early stage of the proceedings, the Trust Fund for Victims is able to reach many more victims and their immediate needs than the Court will. Obtaining reparation is often an important reason for victims to participate in a trial. As no trial before the ICC has yet come to an end, no reparation awards have so far been ordered by the Court. Although progress has been made as to the clarification of the concept of “reparation” – which may include restitution, compensation and rehabilitation – there are still uncertainties as to which principles of reparation the Court will apply. A footnote attached to the final report of the Working Group on Procedural Matters of the Rome Conference, however, strongly indicates that the principles for reparation should be inspired by developing international standards on reparation, in particular the so-called Van Boven/Bassiouni Principles.73 Another question is how the Court will deal with large numbers of victims requesting reparation? According to Rule 97 of the Rules of Procedure and Evidence, the Court may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis, or both. Given the large numbers of actual victims, adhering to the principle of individual reparation will inevitably lead to an element of caprice within the entire process. In line with the approach of the Trust Fund for Victims, the Court might want to consider to provide collective reparation to victims most of the times. Indeed, the Trust Fund for Victims has started to implement several activities in Uganda (eighteen projects) and the DRC (sixteen projects), benefiting an expected total of 380,000 direct and indirect victims.74 These programs

73 Footnote

5 to Article 73 on reparations to victims in the final report of the Working Group on Procedural Matters, A/CONF.183/C.1/WGPM/L.2/Add.7, 13 July 1998. See also Friman, H. & Lewis, P., ‘Reparation to Victims’, in: Lee, R.S. et al. (eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Ardsley, NY, Transnational Publishers, 2001, pp. 477–478. 74 See ICC website (www.icc-cpi.int) under Structure of the Court/Victims/Trust Fund for Victims/current projects (last accessed 6 May 2009). See also Decision on Notification of the Trust Fund for Victims and on its Request for Leave to respond to OPCD’s Observations on the Notification, Situation in Uganda, ICC-02/04-126, Pre-Trial Chamber II, 19 March 2008; and

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will assist victims of mass crimes in multiple ways, including through physical and psychological rehabilitation as well as material support.

12.5.4 Outreach In order to reach as many victims as possible so that they can apply for participation and assert their reparation claims, the Court – in practice mainly the Victims’ Participation and Reparations section (VPRS) – is required to give adequate publicity to the Court’s participation and reparation proceedings and may seek the assistance of States Parties and intergovernmental organizations for this purpose (Rule 96 of the Rules of Procedure and Evidence). It is furthermore important that victims are also informed about the protective and special measures available, so that they can make an informed choice whether or not to participate or request for reparation. Although the Court had a slow start where outreach is concerned, the outreach activities undertaken by the Court steadily increased over the years 2007 and 2008, particularly in the DRC and Uganda, including by making use of easily accessible ways of receiving information for most individuals, such as radio.75 Outreach is essential to ensure that affected communities in situations subject to investigation or proceedings can understand and follow the work of the Court through the different phases of its activities. Yet, despite an increase in outreach activities, many victims in the situations concerned are still unaware of the existence of the Court, of what the Court is about, how they can play a role in its proceedings and what the limitations of playing a role in the proceedings may entail. For example, according to a 2008 report based on a survey conducted in 2007 in eastern DRC (among a sample population of 2,620 individuals) and Kinshasa and Kisangani (among a sample population of 1,133 individuals), only 27% had heard about the Court and of those 16% had also heard of the Trust Fund for Victims, 28% had heard of proceedings against Lubanga, and 67% of those interviewed would like to participate at the Court, but only 12% knew how to access the Court proceedings.76 In a 2008 Human Rights Watch report it was more generally held that “(. . .) in the Democratic Republic of Congo, Uganda, and Chad, an inadequate outreach strategy to date has left many

Decision on the Notification of the Board of Directors of the Trust Fund for Victims in Accordance with Regulation 50 of the Regulations of the Trust Fund, Situation in the DRC, ICC-01/04-492, Pre-Trial Chamber I, 11 April 2008, in which the Court approved the proposed activities of the Board of Directors of the Trust Fund for Victims. 75 The outreach activities of the Court for the different situations before the Court can be found at the ICC website, under Structure of the Court/Outreach: http://www.icc-cpi.int (last accessed 6 May 2009). See also ICC, Public Information and Documentation Section, Outreach Unit, Outreach Report 2008. 76 See, inter alia, Human Rights Center, Payson Center for International Development and International Center for Transitional Justice, Living With Fear: A Population-based Survey on Attitudes about Peace, Justice, and Social Reconstruction in Eastern Democratic Republic of Congo, August 2008, p. 47.

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victims unaware of the possibility of participation and, of those who are aware of victims’ participation, many are ill-informed about its operation in practice.”77 In addition, only a few outreach activities have been conducted which included specific strategies to reach victims/survivors of sexual violence in the conflict situations concerned.78 Due to stigmatization in many cultures, survivors of sexual violence may easily be underrepresented in court if the Court does not pay extra attention to them in its outreach activities. In sum, the role that victims may have before the ICC will only be fully enforced if adequate outreach strategies by the Court are undertaken. This implies, inter alia, that the Court should invest more time and resources in establishing fully equipped and sufficient outreach officers in its field offices in the situations concerned, including in places where victims have easy access to these offices.79

12.5.5 Institutional Aspects80 A final aspect that merits attention is of an institutional nature. It concerns the attitude of the agencies and authorities which make up the Court system. From domestic criminal justice systems it is known that reform on behalf of crime victims can only be achieved if and when the attitude of the officials operating the system is supportive of change.81 In the ICC setting, the signals are mixed. On the one hand, the staff of the VWU is mandated to provide training to all organs of the Court on victims’ issues (Rules 16 and 17 of the Rules of Procedure and Evidence). This is supposed to enhance sensitivity and to ensure that the objectives of the provisions on victims’ rights are actually attained. The question remains how realistic such an expectation is. The Trial Attorneys at the ICC and the Judges making up the Chambers are all

77 Human

Rights Watch, Courting History: The Landmark International Criminal Court’s First Years, July 2008, p. 180. 78 See inter alia, ICC Press Release, The ICC organises open discussions in Bunia (Ituri) and Béni (North Kivu), 10 March 2008; ICC Press Release, ICC involves women in the Acholi and Lango sub-regions of Northern Uganda in discussion about the Court, 14 July 2008; ICC Press Release, ICC extends outreach activities to female victims of sexual violence in Iga Barrière (Ituri, DRC), 15 September 2008. 79 For example, in the Central African Republic an understaffed field office is only established in the capital Bangui, not easy accessible for the population affected by the conflict concerned. See ICC, Public Information and Documentation Section, Outreach Unit, Outreach Report 2008. 80 This section is based on Brouwer, A. de & Groenhuijsen, M. (2009). ‘The Role of Victims’, in: International Criminal Procedure: Towards a Coherent Body of Law, London, CMP Publishing, Supra n. 51, pp. 202–203. 81 See for example, for the police: Wemmers J.-A. (1996). Victims in the Criminal Justice System, Amsterdam, Kugler. More generally, see Waller, I. (2003). Crime Victims: Doing Justice to their Support and Protection, Helsinki, HEUNI, p. 48 et seq; and Groenhuijsen, M. (2005). ‘International Protocols on Victims’ Rights and some Reflections on Significant Recent Developments in Victimology’, in: Snyman, R. & Davis, L. (eds.), Victimology in South Africa, Pretoria, Van Schaik Publishers, pp. 333–351.

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veteran lawyers, many of them with a lifetime of trial experience behind them.82 It is very likely that their views on the proper role of the victim during proceedings have taken shape during the formative years of their careers and can hardly be affected by a couple of afternoons of training by VWU employees at the ICC. Given the wide discretionary powers of the Chambers in deciding on the proper application of victims’ rights, it is to be expected that their long-held convictions will decisively influence the interpretation of the Rome Statute. It remains to be seen whether the application of the relevant provisions will be generous for the (potential) victims involved. These concerns are further compounded by the fact that during the first period of activity of the ICC the Prosecutor’s Office has quickly acquired the reputation of marginalizing the role of victims during the proceedings.83 Apparently, the Trial Attorneys do not consider it as a challenge to welcome victims in order to improve the quality of the trial. Instead, they radiate the rather traditional attitude that victims are some sort of nuisance imposed on them, who should be treated in a way which interferes as little as possible with their job proper. If this type of attitude would be the dominant one in the years to come, it will be extremely hard to apply the provisions on victims’ rights in the way it was envisaged by the drafters of the Rome Statute.

12.6 Final Remarks What does all of this mean for the ICC? Can the ICC adequately deal with the needs of mass victims? Despite similarities at the individual level between the consequences of mass victimization and conventional victimization, there are also important differences. To begin, there is the large number of victims affected by the types of crimes that are handled by the Court. The sheer volume of victims is a challenge facing the ICC that is practically unheard of in domestic criminal courts. Secondly, crimes that target a person’s social group can lead to more fear, anger and trauma than non-hate victimizations. In addition to the impact on the individual, there is the added impact on the victim’s family and their community. A third and final difference is that many of these victims will have experienced multiple victimizations and, as a result, may be highly traumatized. In terms of needs, the same types of needs can be expected among victims of mass victimization and victims of conventional crime. However, with mass victimization the needs will be exponential. Add to that a lack of resources (medical, social, economic) and it is likely that most victims will struggle to meet their most

82 As

far as the qualifications of Judges is concerned, Article 36(3)(b) of the Rome Statute makes clear that not only individuals with a legal background in court can be elected as Judge, but also individuals with a legal background in, inter alia, academia or diplomacy. 83 For example, the prosecutorial strategy seems to be focused on selected incidents (one village in the Katanga and Chui case) or crimes (only conscripting and enlisting children under the age of 15 years and using them to participate actively in hostilities in the Lubanga case). Leaving out many victims wishing to participate since their harm is not linked to the incidents and/or crimes charged.

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basic physiological needs. Only after they have food, shelter and safety will they begin to think about more abstract needs such as recognition and respect in the criminal justice system. Unless these basic needs are met, the ICC will be irrelevant to victims of gross violations of human rights. As the Trust Fund for Victims can assist victims already in an early phase of the proceedings, the Trust Fund for Victims has a role to play here as it will be able to address the immediate needs of many victims of mass crime, even those whose cases will never be pursued before the Court. As to the question whether the Declaration, which was mainly written with victims of conventional crime in mind, applies equally to victims of genocide, crimes against humanity and war crimes, the answer is yes. The Declaration emphasizes the need to provide medical assistance, psychological support, protection, information, reparation as well as participation of victims. These rights are relevant for victims of genocide, crimes against humanity and war crimes, who may experience many of the same needs as victims of conventional crime. What is different is the organization and implementation of these rights simply because of the large number of people affected by mass victimizations. The Court deals with large numbers of victims wishing to participate and/or request reparation. This is, admittedly, a challenging task. In order to effectively implement victims’ rights, the Court therefore needs to apply them in a practical manner without compromising the rights of the accused. This entails, for example, that collective reparation to victims is likely to be the best solution in the majority of cases, both for Court awards as for assistance provided by the Trust Fund for Victims. This also entails that, without endangering the interests of victims, the Court should not appoint too many common legal representatives in a certain proceeding at the same time as this would most probably lead to unacceptable delays and fragmentation of the trial. Furthermore, the application procedure to apply for standing as a victim to participate in the proceedings as well as the Chamber’s decision-making process on whether or not to recognize the applicants as participants should be improved. As far as protection is concerned, the suggestion that one key person of a group of victims reveals his identity to the benefit of the other – anonymous – victims might be a good solution to tackle the problem of protecting large numbers of victim participants. Although the Court is still trying to find a balance in providing a role to victims in the proceedings, in the end, it cannot be that victims of mass crimes suffer as a consequence of bad implementation of these hard-fought rights in the Rome Statute and Rules of Procedure and Evidence.

Part V

Conclusion

Chapter 13

Reconstructing Victim-Centered Justice on a Global Scale Jan van Dijk and Rianne Letschert

13.1 Introduction The various chapters in this book can be read as examples of the blatantly unjust sides of globalization. They testify how processes of globalization are producing increasing numbers of victims of old and new forms of transnational or international crimes. Due to increased mobility and the use of Internet, residents of one country can more easily than ever before victimize residents in other countries. New faces of criminal victimhood include victims of human trafficking, international terrorism, transnational organized crime, cross-border environmental crimes, Internet-based identity theft, cyberstalking and misconduct by private military companies. The authors have addressed the grave consequences of these crimes. They have also explored the extent to which conventional or new forms of international law effectively provide access to justice to victims across borders. Although in several fields of law international legal arrangements are emerging, the authors present several examples of the powerlessness of victim-complainants of global crime. In the absence of efficiently operating institutions for global justice, it often falls to the agencies of national states to initiate legal action against global crime. If no state feels obliged to investigate and prosecute transnational crimes or such investigations fail for lack of mutual legal aid, the victim is practically left without legal recourse. The International Criminal Court is at the moment the only global operating institution hailed for its’ victim-centered approach, although here too problems of implementation and proper outreach to victims are mentioned. Each of the examples reveals how globalization produces new categories of victims and complicates their access to justice. On the other hand, it was also shown how globalization has encouraged the mindset of cosmopolitanism, leading to the emergence of a global conscience. Globalization, then, paradoxically, creates grave and persistent problems for victims as well as a growing willingness to provide J. van Dijk (B) International Victimology Institute (INTERVICT), Tilburg University, 5000 LE Tilburg, The Netherlands e-mail: [email protected] 303 R. Letschert, J. van Dijk (eds.), The New Faces of Victimhood, Studies in Global C Springer Science+Business Media B.V. 2011 Justice 8, DOI 10.1007/978-90-481-9020-1_13, 

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remedies. The needs of victims are likely to stay an important theme within the ongoing debate on globalization. In this concluding chapter we will provide a general account of the negative and positive side-effects of globalization for victims. In the final section we will present ideas for a future research agenda.

13.2 The Broken Triangles of State, Offender and Victim The drama of crime and justice has for centuries been played out on the bounded territory of the Westphalian nation state. As a rule, national courts have full and exclusive jurisdiction regarding all crimes committed on the territory of their state as defined by their national laws. As a consequence of these claims, the jurisdiction of national states is in principle limited to persons residing on their territory. Offenders who have taken refuge abroad have always posed special problems for criminal justice. The prosecution of offenders who have fled their country requires the cooperation of sovereign states. When mutual legal aid between sovereign states is required, the wheels of justice tend to turn slowly. Even more complicated is the prosecution of nationals who have committed crimes abroad. In principle prosecution of such crimes is left to the authorities in the country where they were committed. Only in exceptional instances states claim jurisdiction over nationals who have committed crimes abroad (e.g. sexual abuse of minors abroad by sex tourists). Even rarer are instances of states claiming jurisdiction over crimes committed by non-nationals abroad. Such universal jurisdiction is typically limited to international crimes such as crimes against humanity. A much discussed topical example presents a (repealed) law in Belgium claiming universal jurisdiction over perpetrators of crimes against humanity.1 The administration of criminal law with its focus on crimes committed on the bounded territories of the nation state is fundamentally challenged by globalization.2 Offenders commit many crimes wholly or partly outside their home countries. Interstate cooperation in criminal matters, once an exceptional event, becomes a routine requirement. Over the past years the international community has started to raise to this challenge by adopting international legal instruments and establishing international legal institutions to facilitate such cooperation. The implementation of these new instruments requires a radical reorientation of national justice institutions. Their exclusive domestic outlook will no longer suffice. Efficient interfaces need to be built with partner organizations abroad or in the supranational sphere. This challenge, daunting as it is, is compounded by the new recognition of victims as relevant stakeholders in criminal justice. In recent years the victim has entered 1 See also Goldmann, M. (2008). Implementing the Rome Statute in Europe: From Sovereign Distinction to Convergence in International Criminal Law? Finnish Yearbook of International Law, 16 (2005/2008), 5–29. 2 Hogg, R. (2002). Criminology Beyond the Nation State: Global Conflicts, Human Rights and the ‘New World Disorder’, in: Karrington & Hogg (eds.), Critical Criminology: Issues, Debates, Challenges, Cullompton, Willan Publisher.

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the crime and justice equation as third party.3 Modern criminal justice is no longer exclusively focused on the relationship between state and offender. Victims have legally protected entitlements towards both the offender and the state. From their side they can reinforce the legitimacy of criminal proceedings and contribute to the reinsertion of offenders into the community. National criminal justice systems must not only exchange evidence and transfer offenders across borders but also cooperate regarding the involvement of victims residing outside national territories in the administration of justice. As elaborated in Chapter 2, mutual legal aid needs to be expanded with victim assistance across borders. In the globalized world the three parties of the crime and justice drama – state, offender and victim – are often geographically disconnected from each other. In cyberspace victims, offenders and states are scattered across countries. When crimes are committed in the “space of flows,” claims of justice can no longer be usefully framed in terms of the state-territorial principle. The emergence of global crimes calls for “the reframing of justice.”4 In the final analysis global crimes seem to call for responses at a supranational level. The International Criminal Court with its universal jurisdiction is emblematic for the emerging global legal order. For ordinary crimes, however serious, no international prosecutors or courts exist or are likely to come into being in the near future. For the time being offenders of such crimes have to be brought to justice in domestic courts for lack of alternatives. In practice it proves, as the examples from the various chapters have demonstrated, difficult to bring geographically mobile offenders of transnational crimes to justice in domestic courts and even more difficult to facilitate the participation of victims or victim communities in such criminal proceedings. The depth of these accumulating challenges is nicely illustrated by developments within the legal space of the European Union. Even within this limited context, the speed and quality of mutual legal aid between states remain a source of frustration. Concerns about the threat of international terrorism persuaded the Member States of the Union in 2005 to mutually recognize the arrest warrants of their courts. While the extradition of offenders has been improved by this innovation, cooperation between Member States in facilitating access to justice to victims is lagging far behind, as discussed in Chapter 2. Member States of the European Union have on paper, for example, a statutory obligation to assist victims of violence who have been victimized elsewhere in the Union in obtaining state compensation. In reality, state compensation schemes show huge variation, ranging from the lack of any scheme in Italy and Greece to the relatively generous scheme in the UK. Moreover, procedural provisions for assisting non-residential victims are only rarely implemented. For non-residential victims of violence the chances to ever receive compensation for their damages are remote. In other respects, too, non-residential victims are

3 Felson

(1997). Crime and Everyday Life, 2nd edition, Thousand Oaks, CA, Pine Forge Press, Sage. 4 Fraser, N. (2005). Reframing Justice in a Globalizing World, New Left Review, November/ December, 69–88.

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unlikely to receive assistance or access to justice. As discussed in Chapter 2, the EU Framework Decision on the Standing of Victims in Criminal Proceedings of 2001 is poorly implemented. This is specifically the case with its provisions on cross-border legal assistance to victims.5 In criminal matters the legal space of the European Union is still in the early stages of development. From a victims’ perspective the European legal space exists only on paper. In the global arena, the challenges posed by globalization to the administration of criminal justice are much larger still. The United Nations Declaration on Rights of Victims of 1985 has formulated the minimum standards for victims’ rights. Some of these standards have found their way into the newly adopted United Nations Conventions against Transnational Organized Crime and Corruption. However, as discussed in Chapter 5, the international community has made little headway with the implementation of these newly adopted conventions. The potential of these international legal instruments to develop into a powerful platform for victims has not been tapped. In many countries the minimum standards for victims rights have not yet been fully incorporated in domestic laws either. Even where they are incorporated, their application is far from assured. The issue of facilitating non-residential victims as parties to the trial is rarely even raised. Bilateral treaties governing the rights of non-residential victims in criminal trials, analogous to agreements on mutual legal aid and extradition in the convention just mentioned, are non-existent. In emerging arrangements for global justice the victim is at risk to become, once again, the forgotten party. In many cases of global crime, communities rather than individual citizens are directly or indirectly victimized. Examples are the collective victims of illegal waste dumping by Western companies in developing countries (Chapter 6), and of transnational organized crime and grand corruption (Chapter 5). In many if not most Western countries, no provisions exist for the representation of collective victims in criminal proceedings. In criminal law the concept of class actions is still underdeveloped. This factor further reduces the chances that victims of such global crimes will ever succeed in realizing their theoretical rights to compensation in criminal procedure. If, for example, the communities affected by the waste dumping by Trafigura would ever try to act as civil plaintiff in a criminal case against the company before a Dutch criminal court, their claims would be inadmissible if presented as a collective claim. In the Netherlands existing provisions for civil plaintiffs in criminal trials have lately been updated, but they do not allow class actions. Existing provisions are therefore ill-suited for victims of (cases of) bribery by Dutch companies abroad.

5 Article 11 of 2001/220/JHA, 15 March 2001 creates obligations on the state to ensure that non-resident victims can make complaints to relevant authorities and can make use of video conferencing in subsequent proceedings. For an assessment of these regulations see Groenhuijsen, M.S. & Pemberton, A. (2009). ‘The EU Framework Decision for Victims of Crime; Does Hard Law Make a Difference’, European Journal of Crime, Criminal Law and Criminal Justice, 17, 43–59.

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13.3 The Need for Victim-Centered Global Justice As discussed by Bodelier in Chapter 2, globalization engenders an increased awareness of the suffering of ordinary people outside one’s own geographical sphere. Bodelier signals a new cosmopolitanism demanding that victims of crime are protected regardless of the boundaries of national jurisdictions. In the terminology of the sociological historian Elias, author of The Civilizing Process, increased interdependencies between people lead to increased sensitivity for each other’s interests. Elias himself analyzed increasing sensitivities among citizens of the emerging nation states, resulting in the gradual abolishment of cruel punishment imposed on fellow citizens.6 In a globalized world, the span of human solidarity reaches beyond the nation state and encompasses the whole world. Telling examples are recurrent international protests against the execution of cruel punishments on women under Shariah law.7 The world community calls not just for the abolishment of cruel punishment but also for the abolishment of the impunity of perpetrators of cruel crime. The new cosmopolitans recognize themselves in the innocent suffering of victims of global crimes and feel that all victims are equally entitled to protection and redress. A Global Civil Society has come into being seeking justice for all. However, in the current circumstances, existing legal institutions are structurally handicapped by their domestic orientation to deliver such justice. Non-residential victims do not fit in existing procedural arrangements. Considering the many uncertainties and complications, the search for justice by victims of global crime will often result in nothing but secondary victimization. Globalization processes threaten to put the clock of criminal justice back to its previous victimless mode. This is not only a cause for humanitarian concern for the individuals and communities involved but may also backfire on global justice itself. As Schur’s seminal analysis of crimes without victims has taught, the legitimacy of prosecuting such crimes cannot be taken for granted.8 To make up for lacking victim testimonies, investigations of victimless crimes must of necessity apply intrusive measures to collect evidence.9 The use of such intrinsically controversial measures can compromise the law-enforcement agencies using them. The lack of authentic victim testimonies makes the legitimacy of such prosecutions even more doubtful in an

6 Elias (1939). Über den Prozeß der Zivilisation. Soziogenetische und psychogenetische Untersuchungen. Erster Band. Wandlungen des Verhaltens in den weltlichen Oberschichten des Abendlandes and Zweiter Band. Wandlungen der Gesellschaft. Entwurf einer Theorie der Zivilisation, Basel, Verlag Haus zum Falken (Published in English as The Civilizing Process, vol. I. The History of Manners, Oxford, Blackwell, 1969, and The Civilizing Process, vol. II. State Formation and Civilization, Oxford, Blackwell, 1982). 7 To illustrate, in July 2010 an international campaign, mainly through the internet and influential newspapers, started to put pressure on the Iranian Government to release the Iranian mother, Sakineh Mohammadie Ashtianin, who was sentenced with stoning. 8 Schur, E.M. (1965). Crimes without Victims, Englewood Cliffs, NJ, Prentice Hall. 9 See Chapter 5 for an elaboration of the concept of victimless crimes.

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era where criminal justice has generally become more victim-centered. In what Boutellier and Garland have called the “victimalized” culture of modern criminal justice, victimless trials have become an anomaly.10 The investigations of cases of human trafficking are a case in point. At the rhetorical level human trafficking is combated on behalf of the victims. In reality investigations into human trafficking are in many countries based on razzias in the sex industry which show little respect for the civil liberties of the sex workers arrested.11 In many countries investigation and prosecution of human traffickers is ridden with corruption.12 Trafficked sex workers are often doubly victimized because they are arrested as illegal prostitutes or illegal aliens and reluctant to act as witnesses in trials. In recent years the political commitment of the American administration to address human trafficking seems to be declining. Schur’s misgivings about the criminalization of victimless crimes such as prostitution come to mind when contemplating the increasingly contested nature of the current fight against human trafficking. As discussed in Chapter 5, progress made in the implementation of newly adopted legal instruments against transnational organized crime has been generally rather disappointing. Pledges made by various governments on the occasion of the signing ceremony in Palermo in 2000 that collaboration in the fight against transnational organized crime would be a priority have not been followed up by real action. Resources for the crime prevention program of the UN seem to have decreased rather than expanded. In many parts of the world the political will to address transnational organized crime seems lackluster at best. In the eyes of a skeptical public combating transnational organized crime seems to serve institutional interests of police and prosecution more than that of the community. To regain momentum and become sustainable, the fight against the criminal sides of globalization seems in need of an infusion of victim-based legitimacy. A very special case of action against global crime of doubtful legitimacy is presented by the response to international terrorism. At the political level responses to international terrorism have been ostentatiously victim-centered. In some respects this victim-centeredness was actually practiced. In the USA, Spain and the UK compensation has been made available to primary victims to an extent that goes far beyond existing standards for compensation to victims of conventional violence.13 And yet the victim, in the words of Findlay,14 was not empowered but

10 Garland,

D. (2001). The Culture of Control, Crime and Social Order in Contemporary Society, Oxford, Oxford University Press. 11 Goodey, J. (2004). ‘Sex Trafficking in Women from Central and East European Countries: Promoting a “Victim-Centred” and “Woman-Centred” Approach to Criminal Justice Intervention’, Feminist Review, Special Issue No.76 on ‘Post-Communism: Women’s Lives in Transition’, 26–45. 12 Zhang, S.X. & Pineda, S.L. (2008). ‘Corruption as a Causal Factor in Human Trafficking’, in: Siegel. D. & Nelen. H. (eds.). Organized Crime, Culture, Markets and Policies, Springer. 13 Letschert, R.M. & Ammerlaan, K. (2009). ‘Compensation to Victims of Terrorism’, in: Letschert, Staiger and Pemberton, Assistance to Victims of Terrorism; Towards a European Standards of Justice, Springer. 14 Findlay, M. (2008). Governing through Globalized Crime, Futures for International Criminal Justice, Cullompton, Devon, Willan Publishing.

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claimed as vindication for violent action which served broader political agendas. The military operation in Iraq has not in any real sense been guided or supported by representatives of communities affected by terrorism.15 As analyzed by Pemberton in his contribution, modern terrorism specifically aims at triggering political responses of dubious legitimacy. With its attacks on 9/11, Al Qaeda seems to have purposely and successfully provoked Western nations, most notably the USA, to forms of overreacting. Their responses were at the time, as inter alia expressed by the Secretary General of the UN, widely regarded as of dubious legitimacy. With hindsight they have discredited the involved state institutions such as the armies and government departments of the countries involved.16 The criticism of recent responses to international terrorism are glaring reminders of the legitimacy problems that can arise when responses to global crime are insufficiently victimcentered.

13.4 Human Security and Development According to the proponents of the notion of human security, debates on international relations should be focused more on the needs of ordinary people than those of nation states. The concept of human security is increasingly used to frame debates on international cooperation in humanitarian interventions and development aid. Chapter 4 presented a victims-based or rights-based approach to human trafficking as a contribution to human security. The debate on emerging instruments and institutions for global justice should indeed be situated in the more encompassing theoretical framework of human security. Cooperation in the development of global justice seems an obvious priority for any program to advance human security. As argued by Bodelier in Chapter 2, the concept of human security provides welcome opportunities to combine pressing security issues such as those of crime and corruption with the more established ones of human development. Consensus seems emerging on the need to promote security and development in tandem.17 For the United Nations Development Program the ranking of countries on the Human Development Index has been an important policy tool. To give direction to a new

15 One

of the survivors of the London bombing, John Tulloch has publicly distanced himself from the involvement of his government in the Iraq war. His opposition is not without precedent. In the case of the train hijacking in the Netherlands by Mollucan terrorists one of the most prominent survivors evolved in one of the fiercest critics of the governmental responses to this criminal act. Such opposition has previously often been neutralized as a manifestation of the so called Stockholm syndrome (over identification with the kidnapper). Another interpretation is that victims are sometimes uniquely informed about the motives of their kidnappers and personally committed to prevent further violence and therefore arrive at opinions about the best response that are different from those of the government (Van Dijk, 2008). 16 See regarding the UK’s involvement in Iraq, Weller, M. (2010), Iraq and the Use of Force in International Law, Oxford University Press. 17 The World Bank has chosen Security and Development as main theme of its 2010 World Development Report. The report is expected to recommend an expansion of resources for the security and justice sectors in developing countries.

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comprehensive program on security and development, Bodelier raises the idea of constructing a Human Security Index. Such a composite index would help to focus the new global justice policies on the interrelated needs for security and prosperity of people. It would also help to highlight the interdependencies of security, governance and development. It would, in sum, help to put global crime and justice issues on the map of international politics. The construction of such a composite index seems a daunting challenge considering the dearth of reliable data on security. As known, official statistics on crime and justice are strongly affected by the operations of the systems involved and therefore notoriously unreliable as measures of the problems at hand (the so-called dark numbers of crime). In places where poorly functioning or corrupted police forces start few investigations, the numbers of crimes recorded by the police or tried by the courts tend to be low. However, criminologists have started to collect data on security problems with the help of international surveys among the general public or business community (national or international victimization surveys). By using such victim-based data, collected independently from law-enforcement or justice institutions, criminologists have designed credible statistical indicators of various types of violence and other common crimes as well as of organized crime and grand corruption. These indicators could be used as building blocks of the desired comprehensive index. Also included could be data on homicides from medical registers. In fact, a composite index comprising a broad range of indicators of various types of crime and of the rule of law is already available.18 This catch-all index covering many of the key dimensions of security and governance is called the Index of Lawfulness.19 It provides a rating of 150 or more countries on the basis of indicators of various types of crime, police performance and rule of law. The Lawfulness Index was found to be strongly correlated with the Human Development Index (r.=.72, p<0.05; n=152).20 This relationship confirms the assumed interrelationships between security, governance and human development. 18 Dijk, van, J.J.M (2007). The World of Crime, Breaking the Silence on Problems of Security, Justice and Development Across the World, California, Thousand Oaks, CA, SAGE. 19 Godson, R. (2000). The Role of Civil Society in Countering Organized Crime, Global Implications of the Palermo, Sicily Renaissance. UNODC/ The Sicilian Renaissance Institute, Cita di Palermo, Palermo, 14 December, 2000: ‘The concept ‘rule of law’ – or ‘Etat de droit’ in French – refers to the institutional and legal capacity of governments to uphold the law, including basic human rights. The concept refers to the relationships between the state and its citizens rather than to the relationships between citizens amongst themselves. The concept of a ‘culture of legality’ or ‘culture of lawfulness’ is described by Italian scholars as a culture supportive of the rule of law: ‘Without such a culture, there would almost certainly be more crime. Most people act in a manner consistent with the law because of their expectations that others will behave similarly and that this is best for everyone. In the absence of a culture of lawfulness, many will be freer to satisfy their immediate needs and preferences, even in the presence of elaborate laws. On the other hand, without laws and law enforcement, the culture of lawfulness is, on its own, unlikely to provide for the rule of law. There must be specific processes for rulemaking and rule enforcing. The culture needs enforcement, but the enforcers need the culture. 20 See for a related index also the Ibrahim Index, http://www.moibrahimfoundation.org/en/section/ the-ibrahim-index.

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Some countries are caught in vicious cycles of lawlessness and poverty. Others benefit from virtuous cycles of lawfulness and human development. From a technical perspective the correlation confirms the feasibility of a Human Security Index as proposed by Bodelier. Considering the strength of the relationship, the Lawfulness Index can be integrated with the Human Development Index without difficulty. Under the assumption that lawfulness and human development are equally important dimensions of human dignity, mean scores per country were calculated on the existing Lawfulness Index and the HDI. Table 13.1 shows the 25 countries with the lowest scores on this tentative Human Security Index and those with the highest.

Table 13.1 Countries with the lowest and highest scores on a tentative human security index, comprising of a selection of indicators of lawfulness (security and rule of law) and human development around 2002/2003 (ranking of 150 countries) Lowest 25

Highest 25

Honduras Tajikistan Togo Benin Nigeria Cameroon Madagascar Myanmar Mozambique Sudan Congo, Rep. Eritrea Bangladesh Cote d’Ivoire Pakistan Burkina Faso Yemen, Rep. Kenya Angola Sierra Leone Haiti Niger Chad Burundi Congo, Dem. Rep.

Australia Iceland Sweden Norway Switzerland Netherlands Canada Finland Denmark Luxembourg United States United Kingdom Austria Ireland New Zealand Belgium Singapore Japan Germany France Hong Kong, China Israel Barbados Malta Portugal

Items and sources used: Crime Victimization Prevalence (International Crime Victims Surveys; van Dijk, 2007), Organized Crime Perception (World Economic Forum, Global Competitiveness Reports, Business Executive Surveys, 1997–2003; Merchant International Group, 2004; Beeps, 2004); Money-laundering and Informal sector (Business Executive Survey, WEF, 2004); Level Corruption (Transparency International Annual Report, 2003), Rule of Law (Kaufmann, Kraay, Mastruzzi, 2003), Unsolved Homicides (UN Survey on Crime and Justice, 2002: www.UNODC.org), Human Development Index (UNDP, 2003).

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The overview of the country scores confirms the existence of a North-South Divide on Security, Governance and Human Development. The majority of countries with the lowest scores are situated in Africa. Other populations in dire straits are those of Haiti, Pakistan, Bangladesh, Tajikistan and Honduras.21 No information is available on Iraq and Afghanistan but their scores on human security will also be very low. The distribution of scores on Human Security does not differ radically from scores on the HDI. In this respect the index does not suggest a major change in priorities of humanitarian interventions. The added value of such an all-encompassing index would seem that it promotes holistic, multi-systemic approaches to the imbalances in human well-being across the world rather than a one-sided focus on poverty reduction. It will help to persuade world leaders that security and development are two sides of the same coin. Or, in other words, that promoting global justice is key to promoting human security. In countries with low HS scores, a major part of development aid should also be directed at institution building for promoting security and the rule of law.

13.5 A Global Agenda for Promoting Victim-Centered Justice At the international level, the International Criminal Court has since its inception been positioned – and continues to position itself through its rulings – as a court seeking to deliver victim-centered justice. The ICC allows representatives of victim communities to express their views and concerns at various stages of the proceedings and to present their claims for compensation and restitution. The first cases brought before the Court have shown that victim representatives have room to intervene already in the pretrial stage, pressurizing the prosecution to take into account victim views in building its case and collecting evidence.22 Several provisions have been made to protect the interests of victim-witnesses, including through the use of video-transferred testimonies. Most importantly, the Rome Statute has promoted adequate implementation of the victim provisions through the establishment of a dedicated victim unit in the Court that can assist victims both emotionally and logistically. Another important innovation is the establishment of the Victim Trust Fund. In consultation with the Court, this Fund can award compensation for damages both individually and collectively. In the latter case the Fund can make donations to fund the rebuilding of communities collectively victimized by crime. Although many juridical and practical problems still need to be solved, the first rulings of

21 Some

countries have been excluded in the ranking for lack of data on the key indicators. On the basis of available data the list of countries with the lowest scores could be expanded with Somalia and Iraq. 22 However, for critique on the implementation of the Statute’s participation rights, see Mc Gronigle, B. (2010). Understanding Limitations: Victim Participation and the International Criminal Court, in: Letschert, Haveman, De Brouwer & Pemberton, Developing Victimological Approaches to International Crimes, Intersentia.

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the Court and its related institutions are promising from a victimological point of view.23 Other international justice frameworks show less promising elements of victimcentered justice. The United Nations Commission on Crime Prevention and Criminal Justice, a functional committee of the ECOSOC, has elaborated in a limited time span of just 4 years the Conventions against Transnational Organized Crime (UNTOC, 2000) and its three protocols against human trafficking, smuggling of migrants and trafficking in firearms as well as the Convention against Corruption (2002). The Convention against Transnational Organized Crime has adopted a broad definition of organized crime. It is defined as serious crime punishable by 4 years imprisonment or more committed by a structured group of three or more persons in order to obtain financial benefit. The term transnational is also broadly defined. For these reasons the convention covers the wide range of offences discussed in this book. An important step towards global justice would be a better implementation of these UN-based legal instruments which have been ratified by a large majority of the Member States. Responsibility for the implementation of these Big Five international legal instruments against transnational organized crime has been vested into two Conferences of States Parties. Secretarial support for both the Commission and the two conferences are in the hands of UN Office of Drugs and Crime (UNODC) in Vienna. Over the past 10 years, the Crime Commission has passed resolutions on several related topics such as the theft of cultural property, protected species and last but not least cybercrime. As discussed in Chapter 7, the Crime Commission has set up a Group of Experts on Identity Theft and seems best placed to coordinate global action against such crime. A future convention on cooperation against cybercrime will no doubt be elaborated by the UN Crime Commission as well. Efforts to remedy the deficiencies in the global response to transnational crime should be primarily raised at this forum. Unfortunately, since the elaboration of the five legal instruments mentioned, the Commission seems to have entered into legislative slumber while progress on implementing existing instruments is disappointingly slow. A special issue for deliberation at the UN Crime Commission is the use of digital tools to assist victims. As explained in Chapter 9, digital tools could act as a driver of potential instruments for victim assistance. Victims can be facilitated through the internet to gain access to legal channels across borders. The UNTOC specifically encourages States Parties to make use of video technology

23 During the ICC Review Conference held in Kampala, Uganda, June 2010, a stocktaking exercise

took place of the implementation of the ICC’s victim provisions. Civil Society groups presented several recommendations which can be found at the website of the Victims’ Rights Working Group, see http://www.vrwg.org/. The Conference adopted a positive Resolution on this issue, reiterating victims’ right to access justice and seek reparation. The Resolution also underlined some of the challenges faced by the Court, encouraging, for instance, “further efforts to ensure that victims and affected communities have access to accurate information about the Court, its mandate, as well as about victims’ rights under the Rome Statute, including their right to participate in judicial proceedings and claim for reparations.”

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in judicial proceedings. Digital tools could potentially also be used by victim communities to raise awareness and mobilize public opinion against criminal activities. An example of such digitalism provides the website of the FLARE Network, an international organization lobbying for legal action against transnational organized crime (www.flarenetwork). The potential of digital tools to assist victims of global crimes remains largely untapped. As Prins rightly notes, the effective use of such tools hinges on the availability of functioning institutional frameworks for global justice. The Conferences of States Parties of the two said conferences have been mandated to promote and review the implementation of their conventions and to agree on mechanisms to that end. Agreement on the review mechanisms of the implementation of the convention against corruption has been reached. Deliberations of a similar review mechanism concerning the UNTOC are ongoing. Although deliberations so far have been mainly focused on procedural issues, potentially these two bodies could together develop into a powerful platform for coordinated international legal action against global crime. Ideally, global institutions would be responsible for initiating legal action against perpetrators of the most serious global crimes in cases that no action is taken by relevant domestic institutions. The ultimate goal of an institutional framework for common global crime, including an international prosecution office with investigative functions, seems at this juncture too far-fetched to merit elaboration.24 In the current circumstances any strategy to boost international cooperation against global crime should fully respect sensitivities about sovereignty and territorial integrity.25 Such strategy must therefore of necessity be cautious and incremental in nature. A first step would seem consensus building in the said conferences about implementation priorities. States Parties could agree on giving priority in their investigation and prosecution policies to types of transnational crimes such as trafficking in children, Internet-based fraud or grand corruption involving multinational companies. In such joint programs States Parties would ideally commit themselves to achieve quantitative targets for resources available for investigation and prosecution and for numbers of successful prosecutions per year. According to the conventions, States Parties are obliged to exchange information on current trends in transnational organized crime and corruption and on best practices. The Conferences

24 The

mandate of Interpol in Lyon does not allow it to be involved in actual investigations. Even within the EU, the mandates of Europol and Eurojust are restricted to facilitating cooperation in law enforcement and prosecution respectively. Transnational action against transnational organized crime within the Union seems to rely predominantly on personal networking between individual public officials. 25 Article 4 of the UNTOC stresses the need to respect the sovereignty of participating States: “1. States Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States.”

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have also been mandated to agree on review mechanisms. Ideally the conference would agree on review mechanisms which involve a component of independent peer review. Advisably such peer review would include consultations with relevant groups representing domestic victim communities.26 Key to better implementation of the UN conventions on global crime remains a victim-centered strategy. To enhance the legitimacy of their activities the Conferences of States Parties are well-advised to offer victim organizations a place at their table. Representation and voice for victim communities seem indispensable for sustained action against the problems of globalizing crime. A group of NGOs led by the World Society on Victimology has made proposals to start deliberations on a revision of the UN Declaration on the Rights of Victims of 1985 and its possible adoption as convention. The draft Convention on Justice and Support for Victims of Crime and Abuse of Power also envisages the establishment of a Committee on Justice and Support for Victims of Crime and Abuse of Power that will oversee measures adopted which give effect to the rights of victims. With a view to the importance of a victim-centered approach for the legitimacy of future legal responses to global crime, some form of follow-up to the 1985 Declaration would seem most desirable indeed. A revisiting of the said Declaration would seem relatively uncontroversial. Support could be rallied for such deliberations from all regional groups. For lack of political leadership the proposals have so far fallen on deaf ears but future changes in the political climate at the United Nations could be conducive to renewed consideration. On a positive note the final declaration adopted by the 11th UN Crime Congress on 12–19 April 2010 contains a clear statement on the importance of the promotion of victim rights: “We recognize the importance of adopting appropriate legislation and policies to prevent victimization, including revictimization, and to provide protection and assistance to victims.”27 Concern about the role of victims in criminal procedure both domestically and internationally could help to mobilize countries behind a new agenda for advancing global justice. A central issue in such deliberations ought to be the provision of legal aid to individual and collective victims of global crime seeking redress. Both the ICC Trust Fund and international NGOs assisting complainants in the first cases before the ICC present relevant models for the elaboration of such practical provisions. 26 A peer review mechansism was established in 2006 by the United Nations Human Rights Branch;

The Universal Periodic Review (UPR) is a unique process which involves a review of the human rights records of all 192 UN Member States once every 4 years. The UPR is a State-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations. As one of the main features of the Council, the UPR is designed to ensure equal treatment for every country when their human rights situations are assessed. See http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRmain.aspx. 27 United Nations, A/CONF.213/L6/Rev 2, Draft Salvador Declaration on Comprehensive Strategies for Global Challenges: Crime Prevention and Criminal Justice Systems and their Development in a Changing World.

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13.6 Suggestions for Further Research This book aimed to unravel the emerging arrangements for global justice, assessing their ability to protect and empower actual victims. The overall picture provides various recommendations in different areas of law and policy but also shows the necessity for further scientific research. Several contributors to this volume have raised issues relating to multilevel governance, demonstrating both the advantages as well as the challenges in realising set goals through such form of governance. One of the challenges seems to be that through globalization, a complex system of multi-level governance and legislation has been created, which, besides being a positive development in the encouragement of global justice also seem to complicate effective implementation of and compliance with victims’ rights. On the other hand, globalization has encouraged the creation of formal and informal networks allowing international and national NGOs to engage with global agendas. Through this networking process, globalization also offers empowerment possibilities for those marginalized groups that strive for the same cause. However, to make multi-level governance a success requires a coordinated and cooperative approach towards lawmaking, policy and institutional design. More research by international lawyers, political scientists and victimologists needs to be initiated into factors that could hamper or encourage such success. The book further demonstrated the differing complexities of victims of transnational and other forms of international crimes to actually gain access to justice. The scientific study of victimization becomes more and more diverse, justifying the development of a differential victimology that takes the specific features of different crimes, victims, and contexts into account. To that end, more research needs to be done on the role of state based or NGO based legal aid in access to justice of victims of transnational crimes including but not limited to humanitarian crimes. More research is also needed on different forms of both direct and indirect collective victimization, their various consequences for victims and best ways of redress. Experiences of the International Criminal Court ought to be transposed to other areas of criminal victimization. More explorative research is also needed on the potentials and limitations of active participation of collective victims in criminal trials. Research should also look into the contribution of such “victim voice” to the long term legitimacy of trials against global crimes including trials against transnational organized crime. Lastly, while victims’ rights form an integral part of the normative framework of many Western domestic legal systems, it has been more difficult to enact, let alone implement, these rights in several countries in the developing world. This is even more apparent for countries recovering from a violent conflict.28 As Fletcher and Weinstein adequately describe ‘one of the consequences of mass violence is that the social fabric of a society is torn apart. [. . .] Thus social and institutional

28 See further Letschert, R.M. (2010). Protecting and Empowering Victims of International Crimes

through the Human Security Concept – A New Challenge for Victimologists? SSRN-id1594250.

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arrangements in this new era may not necessarily duplicate those prevailing during the pre-conflict period. Rather than reconstruction, peace and stability require construction of new societal structures and relationships.’29 This means that social reconstruction should consist of multiple approaches, consisting of the following elements: (1) justice initiatives; (2) democracy; (3) economic prosperity and transformation and (4) reconciliation. A further in depth analysis of how to address collective victimization by a combined human security and victimological approach is needed in order to provide proper understanding on the situation of human exposure to suffering and fear, and hence, how to react appropriately to (re)gain full security for all.

29 Fletcher

L.E. & Weinstein, H.M. (2002). ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’, Human Rights Quarterly, 24, 573–639.

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Index

A Absolute poverty, 60, 64, 66 Abused Women’s Active Response Emergency, 220 Access to justice, 4, 11–13, 29, 33, 37–38, 141, 147–149, 155, 222, 281, 303, 305–306, 316 Accountability of corporations, 263 Al Qaeda, 13, 65, 105, 233–252, 309 Anger, 166, 236–237, 244, 246–249, 251, 283–284, 286, 299 Attrition strategy, 241–242 Aut dedere aut iudicare, 269 B Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their disposal, 128, 133, 138 C Cognitive coping, 226 Collective victimization, 16, 20–21, 37–40, 116, 316–317 Committee on Justice and Support of Victims of Crime and Abuse of Power, 19 Compensation, 12–13, 17, 20–21, 25–29, 32–33, 35, 39, 89, 92, 107, 111, 116, 122, 131, 134, 140, 155, 226, 235, 258, 281, 287, 296, 305–306, 308, 312 Composite organized crime index, 115 Computer Emergency Response Teams (CERTs), 173 Concurrent jurisdiction, 204 Convention on Cybercrime, 8, 12, 193, 204, 209–211, 213 Corporate (social) responsibility, 50, 153–154, 186, 274 Criminal identity theft, 160

Cross-border victimization/victims, 16, 20–22, 24, 28, 38–39 Cyberstalking, 12, 191–209, 211, 213, 303 D Defining identity theft, 160–170 Defining stalking, 194 Digilantism, 225 Digital tools, 12, 215–230, 313–314 Dignity, 17, 30, 41–42, 45, 51, 54, 57, 60–61, 63, 68–70, 81, 96–97, 124, 281, 311 Doctrine of effective control, 150–151 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, 264 Draft UN Convention on Justice and Support for Victims of Crime and Abuse of Power, 16, 19, 315 Due diligence, 88–90, 109, 121, 267–269 E Environmental damage, 11, 127–128, 135, 142, 148 Ethical consumerism, 50 EU Directive on Compensation to Crime Victims, 21, 28 EU Directive on Environmental Liability, 135 EU Framework Decision on combating terrorism, 234 EU Framework Decision on Combating Trafficking in Human Beings, 32, 86 EU Framework Decision on the Standing of Victims in Criminal Proceedings, 229, 235, 306 EU Fraud Prevention Expert Group, 171 EU Fundamental Rights Agency, 24, 33 EU Regulation on Shipments of Waste, 133, 135–136, 138 Eurojust, 8, 37–38, 314 European arrest warrant, 8, 37, 206–207

341

342 European Court of Human Rights, 87–89, 142, 144, 155 European Network and Information Security Agency (ENISA), 173, 183 European Parliament, 28, 118–119, 130–131, 153, 155 Europol, 8, 37–38, 234, 314 EU Victims’ Rights Agency, 38 E-victimology, 12, 215–230 Evidence based justice, 173, 184–186 Extradition, 12, 203, 205–209, 212–213, 305–306 Extraterritorial application, 149–153, 268, 273 Extraterritorial application of human rights law, 273 F Feminization of migration, 78–80 Feminization of poverty, 6, 74, 80 Financial identity theft, 160, 168, 186 FLARE Network, 121, 123, 314 G General Recommendation 19 on violence against women (CEDAW), 85, 87, 89–90 Geneva Conventions, 151, 258, 261–262, 277 Global community, 41–43 Global fear, 41, 45–48, 50, 63 Global governance, 15–40 Global justice, 5, 8–10, 13–14, 33, 40, 303, 306–310, 312–316 Guidelines on the Protection of Victims of Terrorist Acts (CoE), 32 Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (UN), 4, 29

Index Information needs, 220–223 Ingroup identification, 249 Intergroup relations, 284–285 International crimes, 4, 7, 9, 14–17, 28–31, 33, 35, 37–38, 104, 114, 162, 193, 209, 228, 273, 289, 303–304, 311–312, 316 International Crime Victims Survey, 228 International Criminal Court (ICC), 4, 9, 13, 16, 30–31, 37, 50, 57, 112, 122, 264, 279–300, 303, 305, 312, 316 International humanitarian law, 4, 9, 29, 34, 257–258, 260–264, 277 International lawmaking, 9–10, 18 International legal assistance, 16, 207–209, 212 International liability law, 128, 155 Internet-facilitated identity theft, 169–170, 188 L Lawfulness Index, 310–311 Legal aid, 12–13, 33, 38, 93, 106, 122–123, 139, 155, 293, 303–306, 315–316 Legal plurism, 38 Lisbon Treaty, 21, 24–26, 32 M Mass victimization, 22, 34, 234–237, 245, 279, 281–283, 286–290, 299–300 Medical identity theft, 165 Mercenarism, 255–260 Millennium Development Goals, 41, 52–54, 56, 59–60, 62, 64–66, 70 Moral globalization, 48–49, 52 Multi-level governance, 10, 12, 17, 35–38, 40, 159–190, 316 Multiple victimization, 286–287, 289, 299 Mutual victim assistance, 38 Mutual vulnerability, 45, 55

H Hate crime, 284–286 Human Development Index, 41, 52–53, 56, 60–61, 63, 66–67, 309–311 Humanitarian interventions, 16, 50, 309, 312 Human rights based approach, 73–98 Human rights dimension, 142–149 Human security index, 10, 42, 61–62, 68–69, 310–311

N Non-residential victims, 305–307

I Identity fraud, 159, 161–162, 172, 176–178, 216 Identity management, 174, 185–186, 188 Indirect victims, 11, 111–116, 296

P Participation, 7, 21, 31, 121, 124, 141, 147, 149, 184, 223, 228, 262, 279, 281, 290–295, 297–298, 300, 305, 312, 316 Political Crime Nexus, 113, 115, 120

O OECD Committee on Consumer Policy, 171 OECD Convention on Bribery, 19 Organized Crime Corruption Nexuses, 119 Outgroup aggression, 248 Outgroup entitativity, 249–250

Index Post Traumatic Stress Disorder (PTSD), 194, 236, 246, 283–284, 286–287 Prevalence cyberstalking, 193–196 Prevalence identity theft, 159–162, 181 Primary victims, 109, 111, 177, 308 Prostitution, 74, 78–79, 82, 85–86, 94, 97, 107, 254, 308 Protective measures, 30–31, 89, 98, 289, 294 Provocation strategy, 241–243, 247–248 R Racial victimization, 284–286 Recommendation on Assistance to Crime Victims (CoE), 22 Relative poverty, 59, 61 Reparation, 4, 26, 29–31, 33–34, 39, 103, 109, 135, 178, 263–264, 272, 279, 281, 290, 292, 296–297, 300, 313 Responsibility to protect, 3, 16, 55, 87 Retribution, 237, 244–251 Risk society, 7, 46–47, 49, 55, 63 S Secondary victimization, 30–31, 167, 185, 229, 293, 307 Secondary victims, 13, 33, 111 Sectoral policy, 189 Smuggling, 8, 76–77, 100, 103, 110, 164, 313 Soft law, 18, 23, 103, 263 T Tertiary victims, 111–112 Therapy culture, 236 Trauma, 31, 35, 40, 196, 201–202, 218, 221, 226–227, 234, 284, 286–287, 299 Trust Fund, 4, 31, 33, 39, 122, 139, 296–297, 300, 312, 315

343 U UN Conventions against Transnational Organized Crime and Corruption, 14, 306 UN Crime Prevention and Criminal Justice Programme, 20 United Nations Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power, 4, 17 United Nations Environment Programme, 132 Universal jurisdiction, 16, 35, 272–273, 304–305 Universal Periodic Peer Review Mechanism, 39 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 31, 77 UNTOC Conference of States Parties, 101–102, 121, 123 US Alien Tort Claims Act, 273–275 V Vicarious retribution, 244, 248–251 Vicarious traumatization effect, 286 Vicarious victims, 13, 233–252 Victim Assistance and Protection Package, 94–95, 98 Victimilization, 107 Victimless crime, 107–109, 111–112, 116, 307–308 Victim profiles, 160, 162–163 Victims’ Participation and Reparations Section (VPRS), 31, 297 Victim Support Europe, 9, 25, 36, 39 Victim testimonies, 110, 119, 307 Vigilantism, 225