A global war on drugs: why the United States should support the prosecution of drug traffickers in the International Criminal Court.

AuthorMcConville, Molly
  1. INTRODUCTION

    Organized, internationally-based drug traffickers with vast financial resources pose a serious threat to the stability and security of the international community. They operate without concern for national boundaries, and individual nation-states are often ill-equipped to prosecute and punish the perpetrators. Despite the best efforts of nations to cooperate, prosecution under the current enforcement system fails to keep pace with the traffickers. The international level is the new arena for fighting the global "War on Drugs," yet nations struggle without the weapons of international prosecution.

    International drug trafficking is a problem in need of a solution; the newly created International Criminal Court ("ICC" or "Court") is a solution in need of problems. This Note advocates combining the two by granting subject-matter jurisdiction over drug trafficking to the Court. The Court would prosecute only serious drug trafficking cases of international concern, and only where individual nations are unwilling or unable to prosecute. It is crucial for the United States, as a world leader in enforcement efforts against drug trafficking, to support this alternate forum. The United States has a strong interest in seeing that more international drug traffickers are brought to justice, whether in the United States, in other national justice systems, or in an international court. Expanding the jurisdiction of the International Criminal Court to prosecute drug trafficking offenses will advance the drug policy objectives of the United States and help stem the growing threat of crime in the twenty-first century.

    Part II of this Note describes the problem of international drug trafficking, with particular emphasis on the United States. It focuses on why international prosecution furthers the drug policy goals of the United States, and on why the current system of enforcement is inadequate to keep pace with the burgeoning drug trade. Part III briefly traces the background of international efforts to address drug trafficking as an international crime, as well as efforts to create an ICC with jurisdiction over drug trafficking. Part III also explains the need to expand the Court's jurisdiction to include drug trafficking, and addresses arguments raised in opposition to this proposal. The Appendix includes a draft of the proposed mechanism for expansion, an Optional Protocol to the International Criminal Court.

  2. INTERNATIONAL DRUG TRAFFICKING: EVIDENCE FOR INTERNATIONAL PROSECUTION

    1. The Nature of the Problem

      Illicit trafficking in narcotics is a worldwide, lucrative venture with tremendous destructive power. Worth approximately $500 billion a year, the international narcotics trade is second only to the international arms trade in value.(1) Drug trafficking destabilizes governments and financial markets, corrupts public officials, and increases health costs to society.(2) Drug trafficking networks also breed further violence and related criminal offenses, such as murder, firearms offenses, racketeering, conspiracy, bribery, tax evasion, banking violations, and money laundering.(3) Shocking acts of violence committed by drug traffickers in Colombia and other major narcotics-producing states demonstrate the serious threat the traffickers pose to international peace and security.(4) "Narco-terrorists have murdered hundreds of law enforcement officers, judges, and political leaders, generating an atmosphere wherein bringing drug traffickers and terrorists to justice is life-threatening."(5) Although these examples represent corruption in its most menacing form, drug-related corruption of government officials is present in virtually every country.(6)

      Unlike some other international crimes, drug trafficking is clearly transnational; its commission involves crossing national boundaries. Other international crimes, such as genocide, may impact the peace and security of humankind without crossing boundary lines.(7) With drug trafficking, however, no location in the world is immune from the reach of the traffickers and the harms their illicit activities produce. This characteristic demonstrates the necessity for effective international cooperation to combat the narcotics trade.(8)

      The United States, as the "largest importer and consumer of narcotic drugs and psychotropic substances in the world,"(9) increasingly feels the effects of international drug trafficking. Drug trafficking constitutes a unique and urgent threat to the security of the U.S. because it touches all ethnic and socioeconomic groups and infiltrates all communities, including cities, suburbs, and rural areas. International criminal organizations operating in foreign nations, usually beyond the reach of U.S. drug laws, produce most of the drugs used by Americans.(10) Virtually all of the cocaine and heroin consumed in the U.S. comes from abroad.(11) Yet the work of international criminals and the drug use that results, wreak havoc within the borders of the United States: "We can see it in the violence and the ruined lives that plague so many of our communities."(12) The drug problem costs billions of dollars annually, including the costs of increased health care, criminal activity, extra law enforcement, and lost productivity.(13) Reducing the problem of drug use in the U.S. would help reverse these damaging effects, and would also decrease incidents of drug-related felonies, child abuse, and AIDS.(14)

      From Presidents Nixon to Bush, U.S. policy in fighting the global Drug War increasingly focused on enforcement: "Legally, this emphasis shifted the focus to what has been perceived as one of the largest obstacles to the enforcement front in the Drug War--the difficulty in bringing suspected narcotics felons to trial."(15) In responding to this difficulty, the U.S. should support an International Criminal Court with jurisdiction over drug trafficking to ensure that more international drug traffickers face justice.

    2. Achieving U.S. Drug Policy Objectives

      The narcotics control objectives of the United States are expressed in varying ways by government officials, but they share the common desire to reduce the availability, use, and harmful effects of drugs. The Bureau for International Narcotics and Law Enforcement Affairs, an agency within the Department of State, is responsible for directing the U.S. international narcotics control program. One of the goals of the program is "to help stop the flow of illegal drugs to American soil."(16) The Bureau views the prosecution of drug traffickers as a key component of its strategy, and works to strengthen foreign criminal justice systems to minimize their corruption by drug trafficking organizations.(17) The Clinton Administration's Office of National Drug Control Policy states its key priorities for domestic law enforcement as "the disruption and dismantling of drug trafficking organizations, including seizure of their assets, and the investigation, arrest, and prosecution and imprisonment of drug traffickers."(18) The role of the U.S. Drug Enforcement Administration (DEA) is to immobilize drug traffickers and seize illicit drugs, or as one agent put it, "to get the dope off the street and put the cat in jail."(19)

      The existence of an International Criminal Court with jurisdiction over drug trafficking would advance all of these: policy objectives, beyond what nations can achieve under the current enforcement system. First, the U.S. should support this proposal because it will mean a greater certainty of prosecution and punishment for suspected drug traffickers. The Court would provide another forum for prosecution, in addition to the criminal justice systems of the U.S. and other countries. More alleged offenders would be prosecuted, punished, and consequently removed from existing drug production and distribution networks. The disruption of organized drug trafficking organizations and their loss of drug proceeds could help reduce political corruption, as well as protect the rule of law, social institutions, and democracy from destabilizing influences. The United States would thus benefit from the resulting increase in international security.

      Second, the Court would likely make international law enforcement more efficient and effective. It will provide mechanisms for resolving jurisdictional disputes between nations and for extraditing offenders to the Court rather than to another sovereign nation. As will be explained in greater detail in Part II.C.3, hearing drug trafficking cases in the Court could also improve relations between the U.S. and other nations by lessening the temptation to abduct foreign fugitives.

      Third, the United States should support the aggressive prosecution of drug trafficking in the Court because it would help reduce the quantity of drugs supplied to U.S. markets. Consequently, benefits flowing to the U.S. could include reductions in drug-related domestic crime, violence, and dependency. As expressed by a high-ranking government official: "We have to do more if we are to break the deadly grip of drug dependency and drug-related crime."(20) The ICC provides a way to break this grip and to stem the growing epidemic of drugs on our nation's streets.

    3. The Need for an Alternate Forum

      1. Characteristics of the Current System

        The current "prosecute-or-extradite" system functions through national prosecutions aided by ad hoc international cooperation. It leaves the enforcement of narcotics laws to individual nation-states, as nations may choose to assert jurisdiction and prosecute drug traffickers within their national justice systems, to extradite them to a requesting state,(21) or to avoid taking any action. Bilateral and multilateral arrangements also exist to facilitate bringing alleged offenders to justice, such as extradition treaties, Mutual Legal Assistance Treaties (MLATs), and law enforcement and prosecutorial cooperation.(22) The United States is actively involved in...

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