Politicisation of the Commission

Most observers agree that, while the Commission was originally intended to deal with crime prevention and criminal justice issues primarily from a scientific and technical perspective, the emphasis has shifted in recent years more in the direction of diplomatic and political perspectives on crime issues and an expanded role in overseeing the work of the Secretariat. Lawyers and criminologists have tended to regard this trend with some dismay, but it is important that the reasons for it be explored.

The gradual shift from a primarily criminological and social-science based body to a more governmental, political and diplomatic focus began long before the present Commission was established. The pre-1991 Committees began as small ad hoc advisory committees of independent academic experts in the 1950s and gradually became more closely tied to the Member States as nominations became governmental and the bodies expanded to represent all of the geographical regions through to the mid-1980’s. The process which led to the establishment of the Commission itself was to some extent a “deal with the devil” in scientific terms, seeking greater governmental and political involvement as a means of mobilizing greater resources and governmental commitment to the outputs of the new Commission, but increasingly at the expense of the independence and scientific calibre and validity of its deliberations.¹¹⁴

Prof. Clark argued at the time the Commission was first established that it required substantive experts with both governmental and non-governmental perspectives, and this continues to be true, but two further layers have been added. A greatly-expanded Secretariat has taken a much more active and substantive role, not just in running the sessions of the Commission, but it providing it with substantive reports and discussion outlines intended to better inform its deliberations and to some extent to focus discussions more closely. It also often provides Member States with advice and assistance in representing their interests and on the sorts of mandates it feels it needs to do its work, a role supported by some delegations and criticised by others as an erosion of neutrality. The other major shift has been towards representation by Vienna-based diplomats who are experts in multilateral diplomacy and the

114 See: Clark, 1994, chapters 1 and 2 at pp. 19-23 and 42-46.

management of the UNODC and other U.N. institutions, but in many cases know relatively little about the study of crime or the mechanics of prevention and criminal justice itself. They can serve as a conduit for the exchange of information and the representation of the interests of their governments in negotiations within parameters defined by their instructions, but they are not able to participate effectively in interactive criminological or policy deliberations of a substantive nature and generally lack the instructions to do so even if they had the substantive expertise.

This evolution has taken the form of gradual changes in the composition of national delegations in the Commission and other U.N. bodies, but it is more than just a gradual shift in diplomatic practice. It has been strongly influenced, if not driven by, the evolution of crime itself during the twentieth century. As discussed above, the concept of “crime” itself has evolved substantially from early views that it should be considered as a matter of the individual human rights of offender and/or victims and of collective social rights to be free of crime, and as a primarily social issue to be dealt with mostly within States.

Globalisation and changes both to the seriousness and extent of transnational crime, and the strategic and security interests in areas such as terrorism, global economic stability, the rule of law, human rights and development assistance have led to greater consideration of crime as a national, regional and global security issue, and to more frequent consideration of crime issues by the Security Council and the General Assembly. The same developments have also led to increasing substantive and institutional overlap with security, economic, development, human rights and other thematic subject-matter, and the range of substantive issues raised in the Commission has expanded significantly, as Member States seek to take up the criminal justice aspects of otherwise non-criminal subject matter, such as the protection of cultural property or protection of the environment.

Whether this is a legitimate attempt to focus criminal justice expertise on the problem or simply an attempt to raise controversial issues that did not achieve satisfactory outcomes in one forum in another forum, the practical effect has been to raise the political temperature of some deliberations and to bring into the Commission a broader range of diplomatic and other experts from outside of the traditional crime prevention and criminal justice field. The adoption of the Palermo and Merida Conventions also follows the precedent of the earlier narcotics instruments in using international law to induce individual Member States to adopt, strengthen and apply domestic criminal law measures to individuals, as discussions of crime issues have matured and consensus on the scope of actions to be taken and the willingness to move more in the direction of prescriptive and legally-binding measures has increased.

The same pressures which have expanded the quantity and scope of the subject-matter before the Commission have also greatly expanded the work of the Secretariat, including into the politically-sensitive area of terrorism prevention. The last two decades have seen large increases in workloads, personnel and resources allocated to UNODC. The assessment of trends in

workloads and budget or resource issues is complicated by the 2003 merger of the former U.N. Drug Control Programme (UNDCP) and the Centre for International Crime Prevention (CICP), but the overall picture is clear. There has been a major expansion in staff and budget, and the vast majority of the increases have been in areas that fall primarily under the oversight of the Crime Commission. Resource issues are examined in detail below, but the combined budget for crime and drugs (and after 2003, terrorism) increased about 400%, from less than $60 million in the early 1990s to a peak of almost $250 million in 2008, and deliberations over how the funds are raised, how they are spent and how they are accounted for have become a major issue for the Commission, and since 2008, the intergovernmental group on finance and governance.

Paradoxically, as the concern about crime, the breadth of the range of subjects raised at each session, and the scope of the Secretariat work and resources overseen by the Commission have all increased the amount of time available for deliberations has been sharply reduced, which has tended to further politicise matters by reducing the substantive evidence before the Commission and the attendance of the substantive experts needed to assess it and develop substantive legal and criminological outputs as opposed to political ones. As discussed below, political risks to the Member States may have been reduced by this, but so has the value of the Commission and its work in developing accurate assessments of the nature and scope of crime and effective responses to it.

As noted above, while the Commission could in theory vote on the resolutions and decisions it makes, the practice is to adopt on consensus or not at all, and it has never voted. This is consistent with technical and scientific conceptions of the Commission, which place more emphasis on exchanging information and developing new knowledge and policy options than on concrete actions, but to a certain degree it also reflects fairly shrewd political strategies among the States concerned. Given the strict approaches taken to national sovereignty in the making and enforcement of the penal law, most delegations have recognised that getting any sort of effective results out of the Commission requires persuasion ahead of coercion or majoritarian decision-making. In this, among the delegates, the diplomats tend to have the advantage over many of the national crime experts, who are sometimes prone to forget the fundamental differences between making laws in a constitutional legislative system and establishing legal or other principles based on the consent and actual support of Member States at the international level.

Whether voting will come, and if so what the effects will be, is difficult to predict. Faced with the possibility of voting, it becomes more likely that delegations will arrive with pre-determined voting instructions, which may exacerbate the existing trends away from actual knowledge-transfer and active policy-making during the Commission sessions. It is also possible that tactical measures might be used to keep sensitive items off the agenda by those who fear an adverse decision, which could short-circuit the sort of deliberations and

negotiations that, over time, form the basis of consensus. Voting might transform the hitherto-chaotic attempts to set strategic priorities, enabling concrete priorities to be set, but this might not prove the panacea that many delegations seek. Such voting could alienate those States whose priorities were voted down and could trigger the same sort of budgetary problems encountered in the General Assembly in the 1980s: if larger numbers of small developing Member States can use voting to control priorities, then the financial support of the smaller number of developed Member States whose priorities are not chosen could evaporate. This does not occur in consensus-based decision making, which requires each group to support the priorities of the other to some degree in order to set priorities and adopt mandates.¹¹⁵

Ultimately, the effectiveness of the Commission lies not just in its ability to make concrete decisions, but its ability to do so based on factual evidence and sound analysis which combines technical validity and political viability, and to reach decisions that enjoy the support of the Member States to the point where the will of other States will be respected and the decisions actually implemented. A major risk, should voting become commonplace, is that it would weaken or reduce the capacity to negotiate consensus-based decisions.

At present, delegations must often weaken texts or accept compromises, and if these go too far or make the proposal ineffective, then its proponents have the option of withdrawing or abandoning it, perhaps with a view to building the necessary support over the longer term. Faced with the prospect of voting, much of the pressure to compromise – and much of the debate needed to work out the substantive details – would be lost. In substantive terms more and stronger decisions might be made, but they might also not be implemented, especially by some of the Member States whose interests are most affected and whose support is most needed. In domestic political structures, legitimacy springs from the recognition that elections are fair, decision making is majority-based and transparent, and that all else being equal, the social benefits and cohesion of acceding to the will of the majority is more beneficial than non-conformity. In the U.N., it is not at all clear that the same dynamic would apply. At the Commission, legitimacy and long term support for a course of action on crime prevention or criminal justice is more likely to attach to consensus-based decisions than majoritarian ones.

It seems apparent that the Commission has become more politicised primarily because the Member States have begun to take crime, and in consequence, Commission itself, seriously. While this clearly has disadvantages when efforts to find technical and legal solutions to specific technical crime problems are impeded, the greater political engagement is essential to preventing and suppressing crime and is a positive development. Political aspects of crime prevention and criminal justice are a factor in every Member State, and they

115 See “Issues related to the contribution of financial resources”, Part F.II, below, and Luck, 2004, at pp. 381-87. See also, Laurenti, 2004. Ultimately, after an extended budgetary crisis, the General Assembly decided to revert to consensus-based budgeting, subject to the ultimate authority of Article 18 of the Charter of the United Nations (⅔ majority vote on certain issues).

can become even more problematic at the multilateral level, where many different political concerns will usually be engaged and consensus or near-consensus must be found. Such developments may make near-consensus more difficult, but the functions of the Commission go beyond consensus-building.

Commission delegations do not just bring the political views of their governments into the forum, they also take out of it their assessments of how other Member States perceive the issues, and this form of dialogue, while laborious and time-consuming, is ultimately essential to forming the more fundamental global consensus at a political level that is needed to deal with the problem that globalised crime has become. It is for technical experts to develop practical responses to crime and to explain what needs to be done, how it would be done and why it needs to be done, but ultimately getting it done depends on the individual and collective political will of the Member States.

2. Regional groups and equitable geographical