Foreign relations, international co-operation in criminal matters and the position of the individual

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Citation: (2003) 16 SACJ 370
• Date: 24 May 2019
• Pages: 370-392
• Author: Gerhard Kemp

Foreign relations,

international co-operation

in criminal matters and the

position of the individual*

GERHARD KEMP**

ABSTRACT

In this article it is argued that, although international co-operation in criminal matters

should be regarded as essentially a matter of foreign relations between sovereign

states, there are certain implications for individuals. Not only should individuals be

regarded as subjects of international law, but the issue should also be analysed in the

context of South Africa's constitutional order with its emphasis on the protection of

human rights. It is argued that the courts are best placed to evaluate and balance the

different issues at stake in matters of co-operation in criminal matters.

Introduction

A cursory reading of the local and international press illustrates the growing

importance of international co-operation in criminal matters. The general

phenomena of international and transnational crime,

1

the increase in

The author would like to thank Lyle Davidson and Steph van der Merwe for the benefit of

their comments on aspects of this article.

BA LLM (Stell),

Senior lecturer, Faculty of Law, University of Stellenbosch.

International crimes (or crimes under international law) can at one level be described as

crimes that are recognised by customary international law as crimes of serious concern to the

international community as a whole. These crimes (like war crimes, genocide and crimes

against humanity) 'deserve international criminal prosecution in an international criminal

tribunal'. (See K Kittichaisaree

International Criminal Law

(2001) 56). Alternatively, one can

analyse the 'penal characteristics' of international treaties. Bassiouni has identified ten such

characteristics. MC Bassiouni

International Criminal Law

Vol I (1999) 47-8.

Transnational crime is best described with reference to the United Nations Convention

Against Transnational Organized Crime, UN General Assembly Doc A/55/383, available at

http://www.unodc.org/pdf/crime/final_instruments/383e.pdf

Although aimed against orga-

nised crime, it is arguable that the elements of an offence of a transnational nature

contained in a3(2) of the Convention are generally applicable, viz:

(a)

the offence is

committed in more than one state;

(b)

the offence is committed in one state but a substantial

part of its preparation, planning, direction or control takes place in another state;

(c)

the

offence is committed in one state but involves an organised criminal group that engages in

criminal activities in more than one state; or

(d)

the offence is committed in one state but has

substantial effects in another state.

370

(2003) 16 SACJ 370

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International co-operation: The position of the individual



371

domestic crime

2

and South Africa's emergence from isolation demands an

effective system of international co-operation. The logic and mechanics of

any system of international co-operation in criminal matters is informed by

various dynamics and important considerations which this article will identify

and assess as they impact on South African legislation regarding international

co-operation. In particular, the article will highlight the position of the

individual in the context of international co-operation.

Although a number of so-called 'modalities of co-operation' exist,

3

this

article focuses on the International Co-operation in Criminal Matters Act of

1996

4

(the Act') and more particularly, the regime provided for in s 2 of the

Act. Where relevant, and appropriate, reference will also be made to other

provisions of the Act, other legislation, treaties and case law.

Developments in foreign jurisdictions, international law in general and

post-1994 constitutional jurisprudence all impact on how co-operation

regimes are understood and interpreted in South Africa. Although we

correctly analyse and interpret international co-operation in the context of

international relations between states

it will be argued that international co-

operation is really about

individuals

(suspects, the accused, witnesses and

victims).

State sovereignty and international co

-

operation

Although trite, it is necessary to remember that state sovereignty is the

raison

d'être

of international co-operation. These days, it is all too easy to speak of

the 'global village', globalisation, integration of legal systems, harmonisation

of (mainly substantive) law and yet not take a hard look at political and legal

realities. Although it is beyond the scope of this article to analyse the effects

of globalisation on international co-operation in criminal matters in general

because of the profound political, cultural, economic and legal consequences

of globalisation, the South African legislative framework will be analysed in

the context of an ever-globalising world. This is a complex debate. While

2

For our purposes, domestic crime will be regarded as conduct criminalized under any given

national legal system. It does not need to be peculiar to that system, but it can possess unique

characteristics.

3

Bassiouni has identified six basic modalities of co-operation in criminal matters. Multilateral

and bilateral treaties form the basis for co-operation between two or more states, however,

voluntary co-operation between sovereign states is still very important and forms the basis of

any of the six modalities. They are: (a) extradition;

(b)

mutual assistance;

(c)

transfer of

criminal proceedings;

(4)

transfer of prisoners;

(e)

seizure and forfeiture of assets; (f)

recognition of foreign penal judgments. See Bassiouni op cit (n1) 14.

4

International Co-operation in Criminal Matters Act 75 of 1996. The Act came into operation on

1 January 1998.

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