Both UNTOC and the Firearms Protocol identify the primary objective of promoting, facilitating and strengthening cooperation among States to address and prevent transnational organized crime (UNODC, 2018b).
The UNTOC provisions are broad and include international law enforcement and judicial cooperation and information exchange in criminal matters for the purpose of preventing, investigating and prosecuting transnational organized crime. Unlike other international instruments, UNTOC can serve as a legal basis for such cooperation in the absence of a formal bilateral treaty when such level of formality is required among two or more States parties.
Trafficking in firearms is a typical crime that involves a transnational element and whose full investigation may require the cooperation from one or more foreign authorities in order to gather the relevant evidence and information necessary to investigate and prosecute the illicit trafficking activity in court.
This may require identifying the seller of the weapons in another country, gathering the proof that the provider sold the weapons to a third person either illegally or knowingly that these were aimed at being trafficked into another country. It may require checking bank accounts and financial transactions, or seizing foreign bank accounts, and may require identifying and hearing witnesses in both countries in order to prove the link between the seller in one country, the trafficker, and the end user in another country.
Obtaining proof that somebody sold a firearm for the purpose of trafficking, or another person possessed a firearm for the same reason, is not easy to achieve and such information may only be obtained through the use of special investigative techniques in the country of origin; for example, using undercover agents to conduct fake purchases, or surveillance of email accounts and wiretapping of telephone conversations. Often, this may warrant the opening of a parallel investigation in both countries where part of the offences has been committed with a view to exchange information and evidence between the authorities of both countries.
Many of these measures require judicial authorization and control, and more so, if a foreign authority is requesting the information. This type of cooperation is obtained through a more formal mechanism called “judicial cooperation”, examples of which include, but are not limited to:
Article 18 of UNTOC provides for a very broad framework of cooperation and requires States parties to afford one another the widest measure of mutual legal assistance applicable to all offences that fall under the scope of the Convention and its Protocols, whenever there are reasonable grounds to suspect offence is transnational in nature and involves an organized criminal group. In other words, in seeking assistance from another country, national authorities do not have to prove the transnational element; it is sufficient that there are reasonable grounds to believe that such an element exists or may emerge as a result of the requested assistance.
The type of assistance that countries may require is very broad and far ranging, and includes, amongst others (UNTOC article 18, also called the mini-treaty, as the Convention can be used as legal basis to facilitate such cooperation):
Extradition is the most invasive and formal type of cooperation; it envisages the surrender by one State of a person present in its territory to another State that seeks this person for prosecution, or for the enforcement of a sentence. The extradition of a person is subject to several conditions and limitations in order to preserve their habeas corpus and not infringe fundamental human rights. Unlike MLA, extradition is subject to the notion of dual criminality, meaning that the offence for which a country is seeking the surrender of a person by another country should be considered a criminal offence in the requested country too. Many countries require the conclusion of a specific bilateral agreement between the two countries or can decide to apply UNTOC as a legal basis. All Convention and Protocol offences must be considered as extraditable offences, and thus be subject to cooperation among Parties.
Module 11 of the UNODC Teaching Module Series on Organized Crime addresses in detail these forms of cooperation. Moreover, Module 9 of the UNODC Teaching Module Series on Firearms looks more in detail at the various forms of international cooperation linked specifically to firearms control matters.
The UN Firearms Protocol supplements the Convention and expands these provisions further. The purpose of the Firearms Protocol “is to promote, facilitate and strengthen cooperation among States Parties in order to prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition” (UNODC, 2001: 2).
States parties to the Protocol shall cooperate at bilateral, regional and international levels, establish national points of contacts on matters related to the Protocol and shall seek the support and cooperation of manufacturers, dealers, importers, exporters, brokers and commercial carriers of firearms, their parts and components and ammunition to prevent and detect the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition. States parties are also required to identify a national body or a focal point to liaise with other States for matters pertaining to the Firearms Protocol (Article 13).
In order to construct an international investigation case, national criminal justice systems must often identify and obtain information of evidence from abroad. The Firearms Protocol encourages States to exchange information with other States that is consistent with their respective domestic, legal and administrative systems. The sort of information typically relates to the following topics:
States parties are also encouraged to exchange relevant scientific and technological information useful to law enforcement authorities in order to enhance one another’s abilities to prevent, detect and investigate the illicit manufacturing of and trafficking in firearms, their parts and components, and ammunition, and to prosecute the persons involved in those illicit activities (Article 12 (3)). They shall cooperate in the tracing of firearms, their parts and components, and ammunition that may have been illicitly manufactured or trafficked (Article 12 (4)).
Part of international cooperation is also the provision, upon request, of training and technical assistance necessary to enhance States parties’ ability to prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms, their parts and components, and ammunition, including technical, financial and material assistance (Article 14).
Besides formal, legal cooperation mechanisms, it is important to develop working level cooperation and contacts with partner institutions in charge of investigation and prosecution of corruption in other countries. Regular networking with other practitioners working in this area of law enforcement allows experience sharing and the establishment of contacts. Eventually, this networking can lead to the development of a community of practitioners that can exchange first-hand information for use in the investigative process or can set the grounds for further formalized cooperation. For example, information about an alleged firearms trafficking group in a neighbouring country can be informally confirmed or denied before actual formal cooperation procedures are started. Such informal cooperation will save time and add operational value to investigative or prosecution procedures.
Joint investigation teams are among the most well-known means of cooperation to fight firearm-related crime. A joint investigation team is a collaborative venture that is set up with the aim of investigating a specific complex criminal offence with a clear international dimension, which comprises experts from competent authorities from two or more participating States. The objective of this technique is to maximize the efficiency of investigative resources of two or more jurisdictions through the exchange of real-time information and, if necessary, operations.
Parallel investigations, or joint investigative teams, are particularly useful and promising measures to deal with crimes, such as international trafficking, where part of the evidence and relevant information exist in the country of origin, or destination of the trafficking. By establishing parallel investigations in both countries, or even where possible joint investigative teams, the evidence is produced domestically (thus faster and easier than via international cooperation requests) and can be exchanged through informal cooperation mechanisms when needed.
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