The trend to ‘universal extradition’ over subsidiary universal jurisdiction in the suppression of transnational crime

• Jurisdiction: South Africa
• Published date: 15 August 2019
• Pages: 287-313
• Author: Neil Boister
• Date: 15 August 2019
• Citation: 2003 Acta Juridica 287

Part E

TRANSNATIONAL AND ORGANISED

CRIME

The trend to ‘universal extradition’ over

subsidiary universal jurisdiction in the

suppression of transnational crime

NEIL BOISTER*

University of Nottingham

I INTRODUCTION: THE PROBLEM OF COMPETENCE

OVER TRANSNATIONAL CRIME

Since the nineteenth century, criminal activity has, at f‌irst gradually

and then more rapidly, developed a signif‌icant extra-territorial dimension

with criminals engaging in cross-border activity both in response to

market opportunities and in order to reduce their vulnerability to law

enforcement.

1

In the twentieth century, the opening of markets, the free

movement of persons, goods, capital and services and the improvement in

transport and telecommunications provided a perfect opportunity for the

globalization of culture, commerce and crime. This globalization of

crime continues today, and it presents, essentially, two kinds of legal

problems for states.

(1) The problem of transnational criminals

Williams and Savona argue that the interconnectedness of modern

societies has promoted new forms of crime such as money laundering,

international counterfeiting, and terrorism, to name but a few.

2

Although

these forms of criminal activity have been around for a lot longer than

*BA LLB LLM (Natal) PhD (Nottingham) Senior Lecturer in Law, University of

Canterbury.

1

P Williams and E Savona ‘Problems and dangers posed by organizedtransnational crime in

various regions of the world’ in Williamsand Savona (eds) The United Nations and Transnational

Organized Crime (1996) 5.

2

See generally Williams and Savona (n 1) 1–42.

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2003 Acta Juridica 287

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many concede, their extensive transnational or trans-international-

boundary nature is a relatively new phenomenon. Criminals engage in

diverse activities in the commission of which they either cross boundaries

themselves or the contraband they are smuggling crosses boundaries.

3

They smuggle many different licit commodities (to avoid customs duty)

and illicit commodities (to avoid legal interdiction and take advantage of

the artif‌icial market created by prohibition): drugs, arms, animals, nuclear

material, women and children, alien nationals, body parts, cash and so

forth. They commit property crimes such as theft, fraud, money

laundering, software piracy, cattle rustling, and crimes of violence such as

aircraft hijacking and terrorism, in more than one state. The impact of

their behaviour is compounded when they network across boundaries.

Transnational organized crime is said to threaten the viability of societies,

the independence of governments, the integrity of f‌inancial institutions

and the functioning of democracy.

4

Whether these claims can be

substantiated or not, there is ample evidence of growth in the activities

and numbers of those who engage in crime that crosses borders:

transnational criminals.

(2) The problem of transnational fugitives

States have always been concerned to pursue those individuals who

commit domestic offences and then f‌lee abroad to jurisdictions where

they have committed no harm and do not face prosecution. Again,

however, porous international borders have made transnational f‌light all

too easy for offenders.

It follows that the broadest def‌inition of transnational crime includes

both cross-border criminality and cross-border f‌light to evade justice. It

also follows that transnational criminal law is concerned with criminal

activities that engage the legal interests of more than one state. One

qualif‌ication is necessary, however: transnational criminal law is con-

cerned with offences against national rather than international law. These

offences may be regulated by the obligations created by international

treaties, but international law does not establish individual criminal

responsibility.

5

This removes from the scope of transnational criminal law

3

See Williams and Savona (n 1) 21–9 for details.

4

For a sceptical view see generally D Nelkin ‘The globalization of crime and criminal

justice’(1997) 50 Current Legal Problems 251–77.

5

Compare a6(c) of the Charter of the International Military Tribunal contained in the

Agreement for the Prosecution and Punishment of the Major War Criminals of the European

Axis 8 August 1945, 82 UNTS 280, which provides for individual responsibility for crimes

against humanity ‘whether or not in violation of the domestic law of the country where

perpetrated,’with a36(4) of the 1961 Single Convention on Narcotic Drugs, 520 UNTS 151

(entered into force 13 December 1964), which provides that nothing contained in a36 on the

288 CRIMINAL JUSTICE IN A NEW SOCIETY

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