pornography as defined in article 2 OPSC245 and further
requires States Parties to adopt and implement legislation
criminalizing and adequately punishing at least such acts
related to child sexual abuse and exploitation as listed in article 3, being the sale of children, inter alia, for sexual exploitation, offering, obtaining, procuring or providing a child for
child prostitution and producing, distributing, disseminating, importing, exporting, offering, selling or possessing child
pornography including attempt to and complicity or participation in committing any of the aforementioned acts.
Article 3 (4) further requires States Parties to establish criminal, civil or administrative accountability of legal persons
with regard to said acts. Concerning the adjudication of child
exploitation crimes, article 5, though not excluding any other
basis for the exercise of criminal jurisdiction in accordance
with international law, stipulates that a State Party shall take
all necessary measures to establish its criminal jurisdiction
under the principle of territoriality, active and passive personality or the principle of aut dedere aut iudicare. Articles 5 and 6
of the Optional Protocol set out general principles for transnational cooperation and extradition in general; article 7 concerns itself with the seizure, confiscation and forfeiture of any
goods used to commit or facilitate or any profit derived from
the child exploitation crimes set out in article 3; article 8
deals with issues related to victim protection, such as taking
due regard of child victims’ vulnerability and their entitlement to compensation; and articles 9 and 10 call for the
adoption or strengthening of legislative, administrative and
political measures and programmes for the prevention of as
well as the enhancement of international cooperation with
regard to child sexual abuse and exploitation-offences.
245
“For the purposes of the present Protocol: (a) Sale of children
means any act or transaction whereby a child is transferred by any
person or group of persons to another for remuneration or any
other consideration; (b) Child prostitution means the use of a child
in sexual activities for remuneration or any other form of consideration; (c) Child pornography means any representation, by whatever
means, of a child engaged in real or simulated explicit sexual
activities or any representation of the sexual parts of a child for
primarily sexual purposes”: Sweden clarified its position regarding
the interpretation of child pornography in this context as only
applying to the visual representation of sexual acts with a child or
minor persons, and not applying to adults acting, posing, or
dressing, as a child [Official Records of the General Assembly,
Fifty-fourth Session (A-54-PV.97)].
United Nations Convention against
Transnational Organized Crime
The United Nations Convention against Transnational
Organized Crime contains a range of provisions concerning
international cooperation against transnational organized
crime.246 It approaches close to universal ratification, with
183 States Parties. It requires Parties to implement a range of
measures to facilitate mutual legal assistance, extradition and
international cooperation in law enforcement measures.
These measures, according to article 3 (1) of the Organized
Crime Convention, can be applied to the prevention, investigation and prosecution of any “serious crime,” as defined in
article 2 (b) of the Convention, that is transnational in nature
(article 3 (2)), involves an organized criminal group, and is
committed with the intent to achieve a material or financial
benefit.247 The term “serious crime” is flexible enough to
encompass a range of conduct, including the use of ICTs to
abuse or exploit children, if and when the minimum punishment for the specific national crime in question amounts to
four years imprisonment or more (article 2 (b)). Importantly,
in the context of article 3 (a)’s definition of the term “organized criminal group”, “benefit” has been interpreted to include
“sexual gratification, such as the receipt or trade of materials
by members of child grooming rings, the trading of children
by preferential child sex offender rings or cost-sharing among
ring members”.248
In addition, article 29 (1) (h) of the Organized Crime
Convention requires States parties, to the extent necessary, to
“initiate, develop, or improve specific training programmes
for its law enforcement personnel” on the “methods used in
combatting transnational organized crime committed
through the use of computers, telecommunications networks
or other forms of modern technology”.
246
United Nations, Treaty Series, vol. 1577 (entered into force on
September 23, 2003).
247
See also Petty, K. A., 2011. “Protecting Children from Cyber
Crime: The Twentieth Session of the United Nations Commission
on Crime Prevention and Criminal Justice”, American Society of
International Law: Insights 15, No. 24. Available at http://www.asil.
org/insights/volume/15/issue/24/
protecting-children-cyber-crime-twentieth-session-un-commission-crime.
248
Ibid.
III.
Combating the problem 37