International Co-operation: A Commonwealth perspective

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Pages: 295-310
• Date: 24 May 2019
• Citation: (2003) 16 SACJ 295
• Author: Kimberly Proust

International Co-operation:

A Commonwealth perspective

KIMBERLY PROUST

*

ABSTRACT

This article examines some key components of international co-operation in criminal

matters — extradition and mutual legal assistance — looking in particular at the

Commonwealth perspective and experience in this growing field. It considers the

Commonwealth Schemes for Co-operation —

The London Scheme for &tradition

within the Commonwealth

and the

Harare Scheme on Mutual Assistance in Criminal

Matters —

in light of modern developments and issues in the practice of international

co-operation. Particular issues considered include in extradition the test for an

extraditable offence and the use of the 'listing approach' and 'penalty based

approach'. The article also considers the controversy surrounding the requirement for

evidence in extradition cases and the different types of approaches to evidentiary

requirements now being introduced within the Commonwealth and generally.

introduction

With advances in technology and the ease of global travel, the world we live

in has become in many ways, as Canadian author Marshall McLuhan

predicted, 'a global village'. This has had a dramatic impact on many aspects

of life and society and law enforcement is no exception.

The technological explosion and the growth of phenomena such as

transnational organised crime, international terrorism, and cross border

money laundering has created many new challenges, not the least of which is

the impact on the jobs of law enforcement officers, prosecutors and judges.

In a 1989 case,

United States of America v Cotroni,

the Supreme Court of

Canada, made the following statement:

The investigation, prosecution and suppression of crime for the protection

of the citizen and the maintenance of peace and public order is an important

goal of all organized societies. The pursuit of that goal cannot realistically be

confined within national boundaries. That has long been the case, but it is

increasingly evident today.

1

The challenge for law enforcement, prosecutorial and judicial authorities in

every nation is that sovereignty and the principle of non-interference in the

domestic affairs of another state are fundamental principles which grounds

* LLB (University of Manitoba) Member of the Bar of the Law Society of Upper Canada,

Manitoba and the Yukon Territory.

1



United States of America v Cotroni

(1989) 48 CCC (3d) 193 at 215.

295

(2003) 16 SACJ 295

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296



SACJ •

(2003) 16

the relations of states but also constitute major tools in the armoury of the

criminal element in our societies. Criminals depend heavily upon the barriers

of sovereignty and non-interference to shield themselves and evidence of

their crimes from detection. Organizations which orchestrate transnational

crime, and which then disperse and conceal the proceeds of their illicit

activities the world over, have no regard for national borders. In fact, by

structuring their organizations to span borders, they are better able to protect

their interests and organizations. They are positioned to take advantage of

the differences between legal systems, the clash of bureaucracies, the

protection of sovereignty, and, at many times, the complete incapacity of

nations to work together to overcome their differences.

As a result, while it was once rare for those working in the criminal justice

system ever to seek assistance from another country it is increasingly

commonplace to have to pursue evidence, the accused or the profits of crime

across national borders.

And it is because of these developments in life and law that international

co-operation in criminal matters has become such a priority issue on the

international agenda, with a resulting impact on national policy and

legislative agendas.

This article will examine some key components of international co-

operation — extradition and mutual legal assistance — looking in particular at

the Commonwealth perspective and experience in this growing field.

Extradition

Extradition, the surrender by one state, at the request of another, of a person

who is accused or has been convicted of a crime,

2

is the best known and

certainly the oldest component of international co-operation in criminal

matters. It is a concept that originated in ancient societies such as the

Egyptian, Chinese, Chaldean, and Assyro-Babylonian.

3

As is often noted, the

first recorded extradition treaty dates from circa 1280 BC when Ramses II,

Pharaoh of Egypt, signed a peace treaty with the Hittites which expressly

provided for the return of persons sought by each sovereign, who had taken

refuge on the other's territory.

4

While extradition has long been a component of the relations between

states, its role and purpose has been altered radically through the ages. In

ancient times and in fact up until the early 1800s, extradition was directed

2



AW LaForest

Extradition to and from Canada

(1991) 1.

3

MC Bassiouni

International Extradition, United States Law and Practice

(1996)

29.

4

Bassiouni, op cit (n3) 3.

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