Joseph Dworak, Deputy Director, United States of America; Navi Gill, Crown Counsel, Canada; Sheila Inbar, Senior Prosecutor, Israel; Jo Jakymec, Chief Crown Prosecutor, United Kingdom; Rodah Ogoma, Senior Assistant Director of Public Prosecutions, Kenya; Farshad Talebi, Assistant Attorney General, Washington.¹
This group was asked to consider how money laundering schemes and security threats impact prosecutors’ abilities to deter and lessen the global impact of the illegal trade of persons and goods and effective methodologies to address these issues, considering various investigative tools such as, seizing assets and proceeding with civil forfeiture measures and engaging in collaborative, multi-jurisdictional efforts when investigating and prosecuting cases.
The illegal trade of goods and people is, almost exclusively, motivated purely by financial gain. Disrupting these criminal enterprises requires a thorough understanding of the trafficking eco-system. In a nutshell, our group believes the interconnection of the trafficking eco-system is captured in the following diagram: ²
Addressing each aspect of this eco-system is vital to efficiently and effectively combating the problem. A unique aspect of trafficking, as opposed to crimes of passion such as sexual assaults and domestic violence, is that these crimes almost always occur across multiple jurisdictions. Globalization has provided opportunities for traffickers to expand their market, reduce their exposure to risk, and optimize their output. The effect of an open and expanding cyberspace cannot be ignored. A case scenario provided below may be helpful in contextualizing the issues, methodologies, and strategies presented in this paper.
Many countries face a growing problem of store-front brothels, operated by large-scale international criminal organizations. A recruiter in China, for instance, offers young women false promises of school and legitimate work in the US. Criminal organizations obtain legal documents, often times exploiting education visas, to import their victims into the country. The organization then systematically distributes the victims to illicit massage and spa businesses where these women are isolated and coerced into performing commercial sex acts. Traffickers utilize the internet to advertise their product and expand their market. Buyers search, read, and review these establishments on websites dedicated to commercial sexual exploitation, which further promotes this illegal criminal enterprise.
Whether this crime involves the exploitation of women, illicit drugs, or other goods, the problem is transnational, giving traffickers additional means to evade law enforcement. Criminals use sophisticated techniques like money laundering, which exacerbates the problem and further presents dangerous security threats. Prosecutors and investigators are charged with the onerous task of leading and/or directing investigations, which responsibility frequently exposes them to various challenges. In order to lessen the global impact of illegal trade in all forms, some of the key issues and recommended strategies to address them are discussed subsequently.
Difficulties tracking money
Often times, transactions involve international actors and diverse locations. The electronic age also has attracted a large-scale use of electronic currency. The storage of money in multi-jurisdictional locations poses multiple challenges for investigators to determine how to identify and process necessary pieces of legislation that should be pursued. This in turn affects the expeditious manner in which money flows can be identified. There are inherent difficulties in the advancing digital world and the super speed at which society is operating in order to track and find a money trail, its origin and destination, hence making this a cumbersome and difficult process for investigators who require the additional support of prosecutors.
Lack of knowledge and training
The complexity of these kind of crimes requires specialized skills and basic knowledge of financial systems for both prosecutors and investigators. Also, the need to have forensic accountants on board cannot be overemphasized. It is ironic that in the modern world, prosecutors and investigators are neither up to date, nor at par in understanding the evolved financial systems and markets which operate in our individual jurisdictions, as that system has now shaken hands in an interjurisdictional capacity. The use of accounting skills to investigate fraud or embezzlement and to analyze financial information for use in legal proceedings falls within a specialized area. There is, therefore, an urgent need for prosecutorial and investigative offices to hire such an expert to complement both prosecutors and investigators in their work. Most trainings are focused on the individual roles of law enforcement, as opposed to a collaborative approach. There is a call for a collaborative approach in modern times, predominately because of the imposition of the digital age that is surpassing our human speed to process disclosures and related documents, money trails, and illegal trade. This is not an exhaustive list, but certainly a part of the tip of the dark trade world that exists, and highlights the need for universal sharing of knowledge between investigators and law enforcement agencies. These combined efforts involving a financial expert or accountant will help facilitate more targeted and effective investigations and court cases, thus reducing the impact that these criminal enterprises have on society.
Lack of cooperation
There exists a red tape among law enforcement officers at both national and international levels within criminal justice agencies, which hinders efficiency and effective responses to crime. The red tape may impact how and whether to proceed with a case, which agencies to involve, or related issues. Sometimes, this red tape and differences in approach affect cooperation on all fronts, including a prosecutor’s ability to work collaboratively with investigators and other government actors. However, all actors have the responsibility to use their judgment in determining the relevance of evidence when proceeding with investigations to lessen the burden of determining what constitutes disclosable or non-disclosable information. This decision-making process—where differences in opinion and strategy are rampant resulting in a lack of cooperative efforts—has the potential to bring a prosecution service to its knees with the reality that prosecutors are expected to operate fairly and efficiently, using their expertise and professional knowledge. This lack of movement, differences in opinion, and/or political impact and pressures can sometimes make it improbable for prosecutors to make sound judgment. All of these challenges are magnified on an international level where large criminal networks operate, despite the need—more than ever in these instances—for increased cooperation.
Currently, there are glaring differences in both substantive and procedural provisions of criminal law among various international jurisdictions. It is also apparent that investigators’ hands are tied by their legal frameworks, for example, the policies and practices in place within their jurisdictions. It is obvious that where an area such as illegal trade of humans and goods is concerned, there ought to be universal practices and policies, where possible, so that investigators can quickly contact their counterparts in other jurisdictions. This universal, progressive collaboration, is not accessible enough to both federal and local prosecutors anywhere throughout the world.
Additionally, the penal implications require some consistencies so that criminals are put on notice that severe punishments flow from benefitting from criminal conduct anywhere the crimes are committed. Equally, perpetrators of crime must know that there is universal investigative power that leads to severe punishment for those involved in these offences, including a comparative consistency in the sentences imposed. We understand this notion is perhaps unrealistic, but it is an ideal, if adopted and executed, that could have a significant impact in reducing criminal activity if perpetrators were treated severely and consistently throughout the globe.
Part of the problem in combatting these international issues lies in the fact that there lacks a universal charter/constitutional framework amongst countries. Hence, the natural inconsistencies as to viable defense applications an accused likely would raise in an effort to be exonerated of the charges imposed against them. We are mindful how unlikely it is to have something akin to the United Nations Universal of Charter of Human Rights, but it is important to have a charter that addresses mobility issues or interjurisdictional challenges in its provisions. If not, at a minimum, an adoption of various national and international charter/constitutional documents would help begin the process to maintain continuity.
Recognizing that international criminal cases involve multiple accused persons in highly complex investigations, the likelihood of extradition considerations is inevitable. This subject needs to be factored into prosecution and investigations from both the originating jurisdiction and the importing, or receiving, jurisdiction. Accordingly, there needs to be universal practices in place so that the integrity of the investigation and the speed of recovery of evidence is not compromised. Where this is not possible, cooperation at the earliest encourages compliance with parallel or different legal systems that are currently in place.
Different pre-trial negotiation strategies also exist within the different jurisdictions, which impacts how cases proceed. These strategies are contemplated in the background of varying criminal code sanctions flowing from the various pieces of legislation within each country, in addition to policies and directives from each ministry of justice. If ignored or not well handled, poorly executed strategies may invariably result in compromising the universality of plea bargaining best practices.
Methodologies and Strategies
In addressing the issues faced by prosecutors in their abilities to deter and lessen the global impact of illegal trade of persons and goods, we offer three strategies, which are: cross border cooperation; strengthen investigative tools; and regulatory reform.
It is necessary to strengthen cross border cooperation between nation states in order to combat the threats posed by money laundering and illegal trade in persons and goods. One approach we offer is to develop and maintain a network of communication tools to share best practices among nations. While jurisdictions can face different challenges, there are useful strategies based on successful practices that may be shared among countries. Prosecutors serve as just one player of a critical team. It is necessary for prosecutors to work collaboratively with investigators, law enforcement agencies, and analysts in order to pursue successful prosecutions of illegal trade and the seizing of assets.
It is important to have, or share, common practices for all the countries that cooperate on a case. We suggest that communication and the development of best practices are the key ticket items to abide by so all the involved parties will work together according to the same rules. It will be helpful if the countries and states that work together share their efforts and work as a team, including in: resource sharing; intelligence sharing; capacity building (staff sharing); a lifetime management approach to disrupting criminal financial networks; and international asset sharing agreements.
An area that deserves attention is the use of forensic accounting in surveillance and prosecution of activities related to illegal trade. As trade increasingly occurs online through intermediary channels, it is crucial for criminal investigations to utilize new technologies. Many of these resources are being developed in the private industry, and public prosecutors must keep with the pace. Collaboration with the private sector should be strengthened, but government agencies must look more toward recruiting in-house experts and work to retain personnel who are properly trained in forensic accounting and current investigative tools. Losing skilled employees will deprive an agency of tools necessary to combat criminal actors.
As evidenced in the recent past, the group believed that resource sharing—like in the case of the United States Department of State and Federal Bureau of Investigation—in both the domestic and international community can be achieved through partnerships, skilled expertise, and resource sharing. Priority should be given to creating and maintaining contact lists of available domestic and international resources to provide guidance, use resources related to forensic accounting tools, and apply best practices in conducting surveillance of individuals and groups involved in illegal trade. Strengthening investigative tools must also include prioritizing regular and up to date trainings. Collaboration may also provide these trainings for prosecutors, investigators, and other law enforcement agencies. These groups are imperative to provide a comprehensive approach toward strengthening investigative tools for combating illegal trade.
Ongoing legislative and regulatory action will be necessary to help ensure that robust investigative tools are available to prosecutors and investigators. Regulatory reform must focus on making financial institutions cooperate, provide greater transparency, and help identify and track novel methods criminal actors use to facilitate and commit acts of illegal trade. Regulatory reform should include strengthening disclosure requirements, as well as reducing the minimum reporting thresholds for certain types of financial transactions. The reform should identify ways to reduce or eliminate anonymity of market participants, including greater regulation of shell companies that may be used for facilitating money laundering and other illicit activities. In addition, it is imperative that domestic and international efforts be extended to force institutions to standardize their Know Your Customer (the business process of identifying and verifying clients) provisions. This action would help to create consistency across markets and strengthen regulatory requirements and enforcement with increased uniform application.
Finally, current fluctuations in the use of various digital and crypto-currencies by domestic and international criminal organizations has proved to be difficult to track by prosecutorial and investigative organizations. The international community must confront this growing trend of the increased number of currencies being created and used primarily for illegal purposes. Discussion is necessary to assess opportunities that allow investigators and financial institutions to track monetary transfers back to the criminal actors using them. Methods used by criminals always change quickly, and law enforcement should work together to identify up-and coming practices before they spread internationally.
Overall, prosecutors must implement intelligent, global strategies to combat the illegal trade of goods and people. Since the underlying motivation is always money, law enforcement and prosecutors must attack criminals’ bottom line to be effective. One of the critical tools is utilizing or implementing asset forfeiture laws and reforming the law before it is rendered ineffective or outdated.
The use of asset forfeiture also presents some ethical considerations that cannot be ignored. Law enforcement and prosecutors must make it clear that seizing and forfeiting these assets is not driven by a motivation to increase revenue for the government, but as a tool to disrupt the criminal enterprise and deter traffickers. A way in which prosecutors can both forfeit criminal assets and proceeds while simultaneously maintaining public confidence is to enact accompanying provisions that give a percentage of the proceeds back to the public. For instance, a statutory mandate that 50% of all asset forfeitures must go to community service providers and advocates of trafficking victims could help accomplish this goal.
A multidisciplinary approach to combating trafficking in persons and goods is necessary to maintain faith in government and the criminal justice system and effectively eradicate these abhorrent criminal practices. Public awareness and education, partnerships with both governmental and non-governmental organizations, and cross border cooperation are vital to combatting illegal trade in all its methods.
¹The authors of this paper collaboratively worked to express ideas and views as a collective group. Their views do not necessarily reflect those of individual group members, their respective organizations, or their respective employers or jurisdictions.
² The diagram was created by 2017 International Fellow Farshad Talebi.