Transnational Crime, Mutual Legal Assistance, and Compliance with International Obligations in the Developing World: Reforming and Enforcing Legal Mechanisms to Effectively Combat Transnational Crime in Afghanistan

Abstract

Technological developments have enabled very rapid advances in communication and transportation in recent decades, creating globalized commerce. The effect of these advances is not limited to legitimate commerce: criminal activity, especially by networks of organized crime, has also benefited. Traditional international law principles pose a major challenge when nation-states attempt to investigate, prosecute and punish criminal activity that extends beyond the borders of the state seeking enforcement. The problem of transnational crime particularly impacts weaker and poorer states such as Afghanistan in two respects: the economy of such states is often particularly vulnerable, and at the same time such states often have weak administrative, prosecutorial and judicial capacity when they seek to address the problem. The UN and other international organizations have undertaken ever-increasing initiatives to organize a response to transnational crime, including multilateral UN treaties with wide adoption. Afghanistan has undertaken to participate in and abide by a number of the efforts and treaties. This dissertation briefly traces the background to, and effects of, transnational crime, and then details significant elements of the international response, focusing in particular on UN treaties to which Afghanistan is party. It then analyses the extent to which Afghanistan has complied with its assumed international mutual legal assistance obligations: this poses issues both of incorporation into domestic law and harmonization with other aspects of the Afghan legal system. After assessing these issues from a formal standpoint, it then summarizes the results of empirical research addressing the question of whether in fact these obligations are known and observed in Afghanistan. Finally, manifold shortcomings of the present situation are identified, and recommendations and proposals are set forth intended to improve the efficacy of Afghan legal enforcement in the area of mutual legal assistance, and to bring it into better compliance with both widely-adopted legal norms and Afghanistan’s international law obligations.