The Latin American Criminal Court: an Approach for Regional Integration Against Transnational Organized Crime (Part 2)*

Fernando A. Iglesias
President of the World Federalist Movement, Director of the Spinelli Chair in Buenos Aires, Member of the Argentinian Parliament and of the Friendship with Italy Group in the Chamber of Deputies

"To the sad record of being the most socially unequal region in the world, Latin America has added that of being the most violent region on the planet" states the founding manifesto of the project, drawn up in 2013. And it continues: "The terrible situation in northern Mexico, the growth of Central American gangs, and of criminal violence, drug use, arms trafficking, narcotics and people forced into labor and sexual slavery in the rest of the countries, constitute a regional problem with enormous negative repercussions on the life of Latin American citizens. Slowly but inexorably, the proliferation of groups dedicated to transnationally organized crime is becoming the main social problem in the region, a threat to democracy and the main brake on its economic development. Unfortunately, the only ones who seem to have understood the global nature of the world in which we live and managed to structure their organizations with a supranational logic that renders national borders obsolete, are the criminals. International protection networks that hide fugitives from justice in other countries, collaboration systems between criminal organizations that operate globally, global exchange of information, drugs and weapons, interconnected mafias in the region and in the world, are just some of the strategies that leave the national systems for the prosecution of organized crime reduced to impotence”.

Summarizing the project in a few lines, COPLA would be constituted on the basis of the experience developed in the creation of the International Criminal Court (ICC), with some modifications regarding its objectives, scope and location. On the one hand, unlike the ICC, the COPLA would not be in charge of prosecuting crimes against humanity, essentially associated with political objectives, but crimes related to the objective of profit, essentially of an economic nature. Consequently, its founding document would not be the Rome Statute, but the Palermo Convention, a multilateral treaty against transnational organized crime sponsored by the United Nations, adopted in 2000, which is under the jurisdiction of the United Nations Office on Drugs and Crime (UNODC) and consists of a central agreement supplemented by three protocols: the protocol to prevent, suppress and punish human trafficking, the protocol against the smuggling of migrants, and the protocol against the manufacture and illicit trafficking of firearms.

As a regional multidisciplinary agency, the court should monitor and track investigations and transnational organized-crime-related situations across the region; promote the development and the improvement of national criminal law; promote judicial and police cooperation among member states and offer protection to witnesses; and would look for:

1) Persecute and judge in a supranational instance the members or members of the highest rank of criminal organizations, usually enjoying impunity and protected by networks of national judicial and political complicity.

2) Recover the assets obtained illegally by those organizations; a measure of extraordinary efficacy in diminishing their power, successfully experienced in Italy, Colombia and other countries. Such recoveries will promote reparation to the victims, both individual and collective.

Its jurisdiction would include the person who runs, manages, organizes or promotes a transnational organized criminal group destined to commit any of the following crimes:

- Illicit trafficking of narcotic drugs or psychotropic substances
- Manufacture and / or illicit trafficking of firearms, their components, parts and ammunition
- Human trafficking
- Smuggling of migrants
- Trafficking of cultural property
- Money laundering 
- Transnational bribery

The COPLA would also differ from the ICC in the framework of its action, which would no longer include - at least, potentially - all the countries of the planet, but only those of Latin America and the Caribbean; as we have mentioned, the region of the world most directly affected by transnational organized crime. In addition, according to the proposal of its promoters, the COPLA would be created in stages, starting with the constitution of a Latin American prosecutor's office that coordinates and strengthens the action of national prosecutors in the way that the Direzione Nazionale Antimafia has done in Italy, the creation of which would be succeeded by the constitution of the Court itself through the adhesion of a minimum number of countries with a minimum number of inhabitants, and that includes at least one of the three largest nations in Latin America: Brazil, Mexico and Argentina.

As for the campaign, its objectives are “the creation of a broad Latin American and world coalition of organizations that fight against organized crime and are favorable to the creation of COPLA; the adhesion of the largest possible number of citizens of Latin America and the world; the drafting of a statute for its operation compatible with national constitutions and existing international treaties; the participation of political actors in the process, beginning with the political parties and their parliamentary representations and ending with the governments and regional organizations”. Specifically, the campaign for COPLA has been underway for 8 years, during which it has recorded the following achievements:

Four Latin American parliamentary organizations have given their unanimous support to the creation of COPLA: the Senate and the Chamber of Deputies of Argentina, the Chamber of Deputies of Paraguay and the Mercosur Parliament (Parlasur).

The previous Argentine national government, in the persons of its vice president Gabriela Michetti and its president Mauricio Macri, announced in the United Nations General Assembly the support of the Argentine government and its search for consensus throughout Latin America for the creation of COPLA. The Mercosur Ministers of Justice and Homeland Security declared their support for COPLA as a viable alternative for a regional organization to fight transnational organized crime.

More than 3000 Latin American citizens from 40 countries; 117 national parliamentarians from 13 countries, not only Latin American, and three former presidents of the region have also supported COPLA and its creation campaign.

Situation Diagnosis

After enjoying four years of momentum related to the elevation of the campaign for COPLA to state policy by the Argentine government 2015-2019, the campaign for COPLA has entered a situation of indeterminacy. On the one hand, the loss of government by the Cambiemos party coalition has implied its orphanhood with respect to the national executive powers: and no national state claims it as part of its political program. On the other hand, the increase in nationalist and populist tendencies in Latin America and throughout the world, both on the Right and the Left, has in itself implied a strong opposition to the development of international and supranational institutions, and caused limitations to the campaign to promote the COPLA, both political and economic. Finally, the COVID-19 pandemic has strongly reduced the possibility of carrying out activities essential to its development: meetings, assemblies, congresses and outreach activities have been suspended until further notice given the government health bans and the reduction of air traffic in all the world.

Considering these factors, during this period the main challenge of the COPLA campaign seems to be to keep the flame burning by digitally promoting the adhesion of as many signatories as possible, the involvement of civil society associations, the participation of parliamentary sectors, and the legal activity in the process of debating and finalizing the drafting of the statute, carried out by the Jurists group of COPLA.

* This article is the second part of a paper whose first part was published in the last issue of The Federalist Debate