South African Journal of Criminal Justice - Volume 16, Issue 3, January 2003

This article explores the transnational transfer of penal norms from developed 'law- giving' states to developing 'law-taking' states. It takes as a case in point the transfer of civil forfeiture from the United States to South Africa. Its main focus is not the nature of the norm transferred, but the process of transfer. The highly controversial nature of civil forfeiture is used as a vehicle to point to deficiencies in the existing process of norm transfer. The article analyses the process from the development of the norm, through its identification as suitable for transfer, the use of international law as a medium, the agency of transfer - the `transnational law enforcement enterprise', adoption by the law-taking state, and the implementation of the norm in that state. It refers in each stage to the example of the transfer of civil forfeiture to South Africa. The article then explores the democratic deficiencies of this process. It takes this process as an example of transgovernmentalism isolated by the American interdisciplinary school Anne-Marie Slaughter. It examines this process, in the context of the theoretical justifications Slaughter offers, from a sociological, ethical and legal perspective. It concludes that further study of the process, greater transparency and accountability in the process, and greater emphasis on legal validity, are necessary to overcome its ethical and legal shortcomings.

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 - <I>The London Scheme for Extradition within the Commonwealth and the Harare Scheme on Mutual Assistance in Criminal Matters&lt;/I&gt; - 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.

Until South Africa's emergence from international isolation in 1994 very few states were willing to become parties to international agreements with it. Under the constitutional dispensation and an increase in transnational criminal activity more states are willing to make arrangements with South Africa concerning international co- operation in criminal matters, including extradition. Once South Africa becomes a party to such an agreement its terms do not have domestic effect until incorporated into South African law. The legislative provisions dealing with the incorporation of extradition agreements appear not to satisfy the constitutional requirements concerning incorporation. Therefore, not only will international fugitives benefit but South Africa may also be embarrassed by its failure to satisfy its international obligations. This must be remedied by legislative enactment as soon as possible.

The growing number of international and regional multilateral initiatives directed at combating notorious cross-border crime and organised criminality signifies the reliance of the international community on states and their domestic law regimes to co-operate in international endeavours in promoting criminal justice commensurate to the task. Mutual legal assistance is a new field of law that transcends the traditional territorialism which limited co-operation to extradition and related informal assistance. Prior to 1996 mutual assistance was known to South Africa but was undeveloped. Gauging South Africa's contribution requires acquaintance with the main features and concepts of today's international mutual legal assistance. Against that background it becomes possible to assess the developments in the country's law and practice as symbolised by the adoption of the International Co-operation in Criminal Matters Act 75 of 1996, but not restricted thereto. The assessment reveals that the Republic's contribution is substantial if the legislative framework as enhanced by its treaty-making initiatives are considered. As with any process of growth there are aspects requiring attention, some legislative and regulatory but mainly in the area of role-player co-ordination and administrative arrangements.

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.

This article canvasses some of the main points raised by Schwarzenberger in a famous article written in the 1950s. The central objection he had to the idea of an international criminal law arose from the structure of the system of international law itself, which has no central authority to enforce its proscriptions. This article explores the concept of individual and state criminal responsibility and considers the characteristics which all international crimes cumulatively embrace. It considers recent evidence of international criminal law offered by the establishment of the <I>ad hoc&lt;/I&gt; Tribunals and the International Criminal Court. It attempts to chart the progress made by the international community in this field since the 1950s but concludes, as did Schwarzenberger, that international criminal law is not universally applicable.