Introduction

Terrorism is an age-old stratagem that has gained renewed international attention following the tragic attacks in Washington and New York in September 2001. Although the events of that day have come to be acknowledged as reflecting a watershed in international concern with the issue, the attacks of September 11th did not occur in isolation. Nor do these events reflect a sudden new threat, but the symbolic reaffirmation of a trend that had been evident for several years. Where terror had previously been an uncomfortable adjunct to anarchism, liberation wars, counter-insurgency campaigns and the battlefields of the Cold War, the events of that day took terrorism to a new, global level.

There is much evidence to indicate that the resurgence of global terror during the 1990s has its roots in the development of a covert alliance to counter and reverse Soviet expansion in Central-South Asia, Afghanistan in particular. A campaign that initially sought to draw the former Soviet Union into its own version of the American experiences in Vietnam, has today spawned any number of offshoots, coalescing around a new global target, the United States, Israel and those perceived to be their close allies. This line of argument does not try to attribute a single causal motive to the recent scourge of international terrorism. Rather it points to the interconnected nature of these events. It examines the extent to which these developments have provided a new impetus to the violent pursuit of radical objectives that feed upon latent and deep divisions along cultural and religious grounds.

After the Soviet withdrawal from Afghanistan in 1989, the contagion carried by returning veterans from the war in Afghanistan spread particularly rapidly in northern Africa. It soon affected Algeria, Egypt and Sudan. The ripple effects from that conflict would even add to the motivation for a wave of terrorist attacks in South Africa in the late-1990s.

In Algeria, tens of thousands of people died and several times this number were wounded, displaced from their homes or disappeared in the events that followed the cancellation of the 1992 elections. In one of its most gruesome episodes, 412 men, women and children were hacked to death on the night of December 29th, 1997 in three isolated villages in Algeria's Elizane region. Algeria has been in a state of virtual civil war since early 1992, as economic stagnation and massive unemployment in the post-independence bidonvilles or shantytowns that ringed its cities provided fertile seed for radicalisation. This was financed first by countries such as Saudi Arabia and later by largess from Usama bin Laden and other radical private financiers. In the final years of the Afghan war, from 1986 to 1989, somewhere between 600 and 1 000 battle hardened Algerian nationals returned home. They provided a nucleus for the terrorist movement that would follow.

Only early and effective countermeasures from Tunisia, Libya, Egypt and other Sub-Saharan states managed to halt the spread of radical terror further afield. Despite these efforts, 58 foreign tourists and four Egyptians were massacred in Luxor, Upper Egypt, in November 1997, garnering international attention and damaging that country's vital tourist industry. The subsequent bombing of two American embassies in Nairobi and Dar es Salaam on August 7, 1998—and evident but unsuccessful attempts to destroy others in Kampala (as well as Bangkok and Tirana)—reflected the extent to which Africa, despite its oft reported global strategic marginalization, had been drawn into a new chapter in an old story. The international character of this threat was reflected in the US retaliatory cruise missile attack on a chemical factory in Khartoum, Sudan on August 20th, 1998. Further north, the summer 1995 assassination attempt on Egyptian President Husni Mubarak in Addis Ababa, Ethiopia, blamed on Al Itihad members, had already increased the tension between Egypt, Sudan and Ethiopia.

While the focus of this monograph is on Africa, terrorism is a global phenomenon. Four hundred people perished when a group of the Shah's opponents burned a cinema in Abadan during the last phase of the monarchy in Iran. There were 328 victims when Sikh terrorists exploded an Air India aircraft in 1985. Two hundred and seventy eight people died in the Lockerbie disaster in Scotland in 1988 and slightly less US marines lost their lives when suicide bombers in Beirut attacked their barracks in 1983. Hundreds lose their lives in the ongoing struggles in Palestine and Israel. The list is almost endless.

In retrospect it is clear that the terrorist threats in a number of countries in the Middle East, in the Magreb and the US Embassy bombings in Dar es Salaam and Nairobi were a preview of the events of September 11th, 2001. Apart from the widespread use of terror by local, national and regional groups, a global campaign had been underway for several decades by the time that the attacks on the World Trade Centre and other symbolic targets in the United States would focus the world's attention on the new threats of the post Cold War era. These events, seminal as they are, reflect public evidence of an intensifying global security problem that will demand a global response, including one from Africa and its constituent individual states.

Although this monograph and most contemporary writing on the subject focus on the international dimensions or manifestations of terrorism, sub-national terror and even state terror has been a long-standing feature of Africa and elsewhere. This is reflected in a number of contributions to this monograph that trace the international efforts dating back several generations to combat international and, when it suits particular political interests, domestic terrorism.

Global, and African, concerns about terrorism have obviously intensified in recent months, but have been evident for several years. As far back as 1992, OAU Heads of State and Government adopted a resolution [AHG/Res. 213 (XXVIII)] aimed at enhancing co-operation and co-ordination between Member States in order to fight the phenomenon of extremism. In 1994 in Tunis, the OAU Assembly adopted a Declaration on the Code of Conduct for Inter-African Relations [AHG/Decl. 2 (XXX)]. The Declaration rejected fanaticism and extremism, whatever their nature, origin and form, particularly those based on religion and terrorist acts, which were unreservedly condemned.

Also in 1994, in its Declaration on Measures to Eliminate International Terrorism, (Annex to Resolution 49/60 of 9 December 1994) the United Nations General Assembly condemned all acts of terrorism wherever and by whomever committed and that:

'criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.'

The International Convention for the Suppression of Terrorist Bombings of 1997 [37 ILM 249] comes close to a general anti-terrorism convention. This Convention makes it an offence for any person to unlawfully and intentionally place or detonate an explosive device in a place of public use, state or government facility or transportation system with intent to cause serious bodily injury or extensive destruction.

The Organization of African Unity adopted the Convention on the Prevention and Combating of Terrorism (the Algiers Convention) at its 35th Ordinary Session of the Assembly of Heads of State and Government in July 1999 in Algiers. However, subsequent ratification and enactment of the Convention remain halting and slow—even after the events of September 11th, 2001.

It is against this background that the OAU is seeking to reinvigorate the African contribution to the global campaign against terrorism. The Constitutive Act of the African Union, 2000 has declared among its principles, in Article 4 (o), its demand for ‘respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities.’ The various aspects discussed in this monograph seek to support this undertaking.

Defining Terrorism

A description and understanding of terrorism is easy. It is the unlawful, or threatened, use of violence against individuals or property to coerce and intimidate governments or societies for political, religious or ideological objectives. Translating this into a common, internationally accepted legal definition has, however, proven impossible. There are a number of reasons for this.

First is that the interpretation of the complex motivation and nature of a deed that at first blush appears to constitute an act of terrorism, loses clarity when placed within a particular historical, political, religious and ideological context. Interpretation of what constitutes terrorism is a function of the vantage point of the commentator—hence the adage that one person's terrorist is another person's freedom fighter.

Second, the specificities of national legislation demand different approaches to the crime. This is a particular problem in Africa where often outdated Francophone and Anglophone legal systems lie uncomfortably next to one another—unencumbered by modernisation since colonialism. This situation is exacerbated by the different approaches that States adopt in distinguishing between terrorism and other types of serious crime such as murder and sabotage. Most countries prefer an approach that restricts the domain of terrorism as narrowly as possible, rather than broadening the application of laws on organised crime, sabotage and sedition. South Africa in the post 1994 period would be one such example.

Others countries adopt a robust and forthright approach in their efforts to combat terrorism, defining and broadening the legal rubric that cover terrorism and those that perpetrate it. More often than not this is an approach common to countries that face a concerted threat from terrorists—one that invariably constrains civil liberties. Typically, the more serious the challenge, the greater the incentive to adopt specific measures and approaches to combat the problem. This is demonstrated by the decision by the United States to establish a special prison for suspected terrorists from Afghanistan in Guantanamo Bay and to resort to the use of military as opposed to normal legal recourse in the aftermath of September 11th, 2001.

The most recent and comprehensive description of terrorism (as opposed to a legal obligation) is contained in the 'Common Position' adopted by the European Union on December 27th, 2001 [2001/931/CSFP]. Reflecting a recent trend, the Common Position makes a distinction between a terrorist act or deed, and terrorist persons, groups or entities. This is an important distinction since it provides some leeway in categorising specific actions as being of a terrorist nature, without the associated problem of classifying groups of movements as essentially terrorist in all their aspects. The Common Position reads, in part, as follows:

2. For the purposes of this Common Position, 'persons, groups and entities involved in terrorist acts' shall mean:

persons who commit, or attempt to commit, terrorist acts or who participate in, or facilitate, the commission of terrorist acts,



groups and entities owned or controlled directly or indirectly by such
persons; and persons, groups and entities acting on behalf of, or under the direction of, such persons, groups and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons, groups or entities.

3. For the purpose of this Common Position, 'terrorist act' shall mean one of the following international acts, which, given its nature or its context, may seriously damage a country or an international organisation, as defined as an offence under national law, where committed with the aim of:

i. seriously intimidating a population, or

ii. unduly compelling a Government or an international organisation to
perform or abstain from performing any act, or

iii. seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation:

attacks upon a person's life which may cause death;



attacks upon the physical integrity of a person;



kidnapping or hostage taking;



causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property, likely to endanger human life or result in major economic loss;



seizure of aircraft, ships or other means of public or goods
transport;



manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of, biological
and chemical weapons;



release of dangerous substances, or causing fires, explosions or floods the effect of which is to endanger human life;



interfering with or disrupting the supply of water, power or any other fundamental natural resource, the effect of which is to
endanger human life;



threatening to commit any of the acts listed under (a) to (h);



directing a terrorist group;



participating in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way, with knowledge or the fact that such participation will contribute to the criminal activities of the group.

For the purposes of this paragraph 'terrorist group' shall mean a structured group of more than two persons, established over a period of time and acting to commit terrorist acts. 'Structured group' means a group that is not randomly formed for the immediate commission of a terrorist act and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure."

The EU Common Position constrains its understanding of what constitutes a 'terrorist acts' to international acts, in an effort to avoid the complexities associated with different national legal systems.

Terrorism may be distinguished from common law crimes and other offences because of the motivation for it being committed. Motivation is, of course, inherently subjective and the problem is invariably that training for today's just warrior may benefit tomorrow's terrorist. This was demonstrated in the events that followed the Soviet invasion of Afghanistan in 1979 and that country's withdrawal ten years later, following which the training of yesterday's liberators (consisting of various factions of the secret anti-Soviet Muslim army in Afghanistan) became terrorist training for a new international guerrilla brotherhood with global ramifications.

The Algiers Convention, 1999 excludes struggles for national self-determination from the definition of terrorism. According to Article 1(3):

3. "Terrorist act" means

any act which is a violation of the criminal laws of a State Party and which may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number of persons or causes or may cause damage to public or private property, natural resources, environmental or cultural heritage and is calculated or intended to:

* intimidate, put in fear, force, coerce or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act, or to adopt or abandon a particular standpoint, or to act
according to certain principles; or

* disrupt any public service, the delivery of any essential service to the public or to create a public emergency; or

* create general insurrection in a State.



any promotion, sponsoring, contribution to, command, aid, incitement, encouragement, attempt, threat, conspiracy, organising or procurement or any person, with the intent to commit any act referred to in paragraph (a)(i) - (ii).

Article 3 provides as follows:

Notwithstanding the provisions of Article 1, the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including the armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts.



Political, philosophical, ideological, racial, ethnic, religious or other motives shall not be a justifiable defence against a terrorist act.

The historical context of OAU Member States—many of whom fought liberation wars against colonial rule—explains where this qualification to their definition of terrorism comes from. During the Cold War and, particularly, the period of decolonisation, one country's terrorist was often another's freedom fighter. African wars of national liberation were supported by the Soviet bloc, the United States and its allies as well as developing countries, which argued that all methods employed to overthrow colonial, racist or alien regimes were permissible.

In this climate States could only reach consensus on narrowly defined aspects of terrorism. For example, the hijacking of aircraft and ships was criminalized and the taking of hostages and acts of terrorism aimed at diplomats were also prohibited by treaty. Even the events of September 11th 2001 could not induce a common international definition of terrorism within the UN Security Council.


One of many problems is that the targets for a terrorist attack may vary from State to State, from time to time and from attack to attack and would take into consideration the vigilance or relaxation of anti-terrorist measures related to the target. European concerns about future targets in the aftermath of the attacks on the World Trade Centre, including attacks on information systems, off shore oil rigs, attacks on nuclear installations and the like are well documented in the EU Common Position quoted above.

Targets are developed over time and reflect the premeditation of terrorist acts, but the common denominator remains the intimidation of a particular target community, often in an effort to induce particular retaliation calculated to fuel the flames upon which the original political, religious, ethnic, socio-economic or other motivations feed. Terrorists often direct their violence and threats at a group, people or symbol that may not be directly linked to their ultimate target, often a government, system, practice or ideology. In the process those that suffer injury and death are often innocent bystanders.

Despite the inability of the international community to provide a single accepted definition of terrorism, there are a number of common elements to the existing definitions:

Terrorism can be perpetrated either by individuals, groups or by governments.



The motivational factors of terrorists include rational consideration of goals and options—a cost benefit analysis. It is a planned event.



Terrorism can exist in the name of political, religious, socio-economic or other belief systems.



The objectives of terrorism are often fear, extortion and radical change. In this regard the process has three elements:

The act or threat of violence, including techno-terrorism and other serious
economic crimes that are committed for a political or other non-profit
motive



The emotional reaction or extreme fear on the part of the potential or future
victim; and



The social effects that follow the violence.

Legal Framework

In adopting the Algiers Convention in 1999, OAU leaders accepted the need to promote human and moral values based on tolerance and the rejection of all forms of terrorism. Article 20 provides that the Convention shall enter into force after the fifteenth instrument of ratification has been deposited with the Secretary General of the OAU.

A number of contributions to this monograph reflect on various aspects of the Algiers Convention, rendering a detailed description of the legal instrument here superfluous. A glaring omission in the Convention, however, is the exclusion of any reference to enforcement mechanisms in the event of a State Party not acting in accordance with the provisions of the Convention, or of effective monitoring mechanisms by the OAU to measure the compliance of State Parties to their legal commitments. The only provision here is a limp requirement (in Article 2) to notify the Secretary General of the OAU of all the legislative measures that State Parties have taken and the penalties imposed on terrorist acts within one year of ratification of, or accession to, the Convention.

A particular focus of subsequent contributions to this monograph is Article 22 of the Algiers Convention. This effectively requires States to comply with the general principles of international law, in particular the principles of international humanitarian law, as well as the African Charter on Human and Peoples' Rights. Inevitably human rights and the protection of peoples' rights are interpreted as constraining or limiting the fight against terrorism. The opposite is, of course, much closer to the truth since it is exactly the active provision and the rigorous protection of these rights and liberties that drain the oxygen for terrorists and their sympathisers.

Following the terrorist attack on New York and Washington DC on September 11th, 2001, the United Nations Security Council at its 4385th meeting on September 28th, 2001, adopted Resolution 1373 in terms of Chapter VII of the Charter of the United Nations. All States (not just United Nation members) are bound in terms of international law to implement its operative provisions. Resolution 1373 reaffirmed Resolutions 1269 (1999) and 1368 (2001) as well as the principle established by the UN General Assembly (Resolution 2625 (XXV) 1970), namely that every State has the duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another State or acquiescing in organizing activities within its territory directed towards the commission of such acts.

According to Resolution 1373, any act of international terrorism constitutes a threat to international peace and security. It requires all States to take certain action concerning terrorism and established a committee (the Counter-Terrorism Committee) of the Security Council to monitor implementation of the operative provisions of the Resolution. All States were required to report to the committee no later than 90 days from date of adoption, i.e. by December 27th, 2001. By this date 117 of the 189 UN Member States had provided national reports on the steps they had taken to implement the Resolution and by April 15th, 2002, 143 reports had been received and the Committee was following up with those countries that had not reported.

UNSC Resolution 1373 contains 18 sub-paragraphs, which constitute operative paragraphs 1 - 3. The principal features of Resolution 1373 are the criminalisation of the financing and other acts of support of terrorism, the freezing of accounts, the introduction of effective border controls and other measures to accelerate the exchange of operational information. In many ways UNSC Resolution 1373 sought to fast-track elements borrowed from the Convention for the Suppression of the Financing of Terrorism, which now became binding on all states, without the cumbersome process of signatures, ratification and reservations.

At the initiative of the President of Senegal, Mr Abdoulaye Wade, a conference of African Heads of State and Governments was held in Dakar on October 17th, 2001. At the closure of this conference, the Dakar Declaration against Terrorism expressing the concerns raised by the development of terrorism was adopted. According to this declaration, terrorism constitutes a blow to fundamental human rights, democracy and peace. The Summit expressed the wish to strengthen co-operation between States and the fight against terrorism in all its varieties and the Declaration provided for discussions and proposals concerning the formulation and adoption of an additional protocol to the Algiers Convention in accordance with the provisions of Article 21 of that Convention. Senegal would subsequently proffer such a draft Protocol to the General Secretariat of the OAU during April 2002 at a time that the thrust of that document had been overtaken by the initiative of the Secretariat to work towards the development of an Action Plan and possibly an additional Protocol.

On November 11th, 2001, shortly after the Dakar meeting, the Central Organ of the OAU Mechanism for Conflict Prevention, Management and Resolution held its 5th Extraordinary Session in New York and issued a Communiqué (Communiqué issued by the Central Organ of the OAU Mechanism for Conflict Prevention, Management and Resolution at its 5th Extra-Ordinary Session at Ministerial Level on 11 November 2001 in New York, USA). The Central Organ inter alia:

Welcomed the adoption of United Nations Security Council Resolution 1373 as well as the Dakar Declaration and requested member States to ensure their effective follow-up and implementation.
b. Urged member States to sign and ratify the existing International Conventions relating to terrorism and called upon State Parties to those Conventions to fully and effectively implement their provisions.



It further urged OAU Member States to sign and ratify the Algiers Convention so as to ensure its early entry into force and stressed that terrorism, as a universal phenomenon constitutes a serious violation of human rights.



Specifically welcomed the proposal made in Dakar to prepare a Draft Additional Protocol to the Algiers Convention in conformity with Article 21 of that Convention.

On April 10th, 2002, the International Convention for the Suppression and the Financing of Terrorism (1999) entered into force having received more than the required 22 ratifications. The Convention was adopted by the United Nations General Assembly in New York on December 9th, 1999 and was opened for signature on January 10th, 2000. As of April 2nd, 2002, 132 States had signed it and 26 States had completed the ratification process and become State Parties.

The Convention criminalizes the act of providing or collecting funds with the intention or knowledge that those funds will be used to carry out a terrorist attack, according to particular definitions, which are found in nine previously adopted anti-terrorist conventions, listed in an annex to the Convention. It adds substantial strength and enforcement opportunities to the network of interlocking Conventions on various aspects of terrorism created by the international community over the last 30 years. The Convention recognizes that financing is at the heart of terrorist activity and calls for efforts to identify, detect and freeze or seize any funds used or allocated for the purpose of committing a terrorist act. It also asks that States consider establishing mechanisms to use such funds to compensate victims or their families.

Key Issues

In considering the key challenges that should inform a comprehensive approach by the Member States of the African Union to combating terrorism, three concerns are paramount. The first relates the intimate connection between terrorism, arms trafficking, the international drug market, organized crime and money laundering. The second is the relationship between human and peoples' rights and combating terrorism. The third is the need to supplement and to operationalise the Algiers Convention in the light of recent developments. Each is discussed in turn below.

Dealing with the Supporting Mechanisms

Today, few instances of domestic terror occur in isolation from international linkages. The reach of global communications and television, have created additional opportunities and vulnerabilities for terror—demonstrated by the global impact of the events of September 11th. At the same time terrorists have also become more deeply embedded in international, as opposed to national, criminal, arms smuggling, drugs and financial networks while greater access to technology and weak control over nuclear and other weapons could place massive destructive power in the hands of dedicated anarchists.

Apart from the political or other motivational aspects, terrorism requires the practical means to translate radical intent into effect. These include:

A suitable recruitment pool;



Finances;



Command, control, communications and intelligence;



Training;



Access to weapons and equipment to execute their terror;



Logistic support including a safe haven for training and preparatory purposes, including individuals, groups and friendly regimes to provide passports, documents and propaganda support (the recognition of their cause and sympathy).

The same networks that have supported arms trafficking, mercenaries, drug trafficking, illegal human trafficking and money laundering often provide the means for terrorism—as they did for the various proxy wars fought in Africa and elsewhere during the Cold War. In the aftermath of that war large sections of the state-run networks engaged in transport, training, provision of arms and equipment, money laundering and the like were privatized—not only in the hope of a more peaceful globe, but as part of the downsizing of the defence and security sectors that followed the collapse of the Berlin wall. Various studies have, for example, pointed to the extent to which support to the Afghan jihad helped to augment Afghanistan's production of drugs and ultimately, by 1998, placed the power to stifle or increase the production in the hands of the victorious Taliban. Here, as is the case in Central and South America and the Far East, the narcotics trade is as closely related to the fight against terrorism as is the ability for private financiers of terror and governments who wish to hide their engagement to launder money through institutions such as the now defunct Bank of Credit and Commerce International (BCCI).


Elsewhere, other connections have become equally relevant. In Africa the end of apartheid would spawn an aggressive private security industry, reflected in companies such as Executive Outcomes, that for a while gained market dominance over the more well established private security companies mostly operating from London. Mercenaries and terrorists obtain their arms through the same illegal or gray channels, launder their payments for these arms as well as their proceedings through networks that may be intimately connected with the drug market and need the same counterfeit experts to obtain passports, travel documents and access to controlled areas.

In fact, the relationship between terrorism and transnational crime is so close as to be reflected in UNSC resolution 1373 (article 4) that emphasised the need for increased regional and international co-operation against both terrorism and against transnational organised crime. UNSC Resolution 1373 therefore provides states with an incentive to sign the United Nations Convention against Transnational Organized Crime of 2000 (generally known as the Palermo Convention) and an obligation to prevent transnational organized crime to the extent that such crimes assist international terrorism.

Some of these linkages are demonstrated by the international focus (and progress) being made in cleaning up the opportunities for money laundering and the financing of terror through, amongst others. Africa is not unaffected by these measures. Included in the list of 19 countries of the Financial Action Task Force (FATF) that, according to the Task Force, do not support transparency and effective exchange of information in international financial transactions are Egypt and Nigeria. Included in the list of countries on the list of the Paris-based Organization for Economic Co-operation and Development (OECD) as international tax evasion destinations at the time of writing is Liberia.

Elsewhere the relationship between the illegal arms market, support to rebel movements and terror has been a long standing one, reflecting the extent to which the same merchants that provided weapons and ammunition to Africa's various rebel movements, irrespective of ideology or orientation, provide arms to terrorist cells, networks and supporters, often assisted by the trafficking of valuable natural commodities such as diamonds and coltan.

Transnational organized crime, money laundering, arms trafficking, drug trafficking and human trafficking are all areas in which there have been recent attempts to internationally regulate such phenomena including the provisions of the Palermo Convention, the Ottawa process (regarding anti-personnel landmines), the establishment of a UN Conventional Arms Register, the 2001 General Assembly meeting on the small arms and others. Through the years Africa has considered and developed common positions that reflect its determination to counter and contain those mechanisms and practices that facilitate terrorism. Examples include the Dakar Declaration on the Prevention and Control of Organized Transnational Crime and Corruption, 1998 and the Bamako Declaration on an African Common Position on the Illicit Proliferation, Circulation and Trafficking of Small Arms and Light Weapons, 2000.

Although the preamble to the Algiers Convention recognised the growing links between terrorism and organised crime, including the illicit traffic of arms, drugs and money laundering, the Convention does not specifically deal with these issues.

Terrorism and Human Rights

The events of September 11th 2001 have had a global impact—especially in the attitude of the United States towards a number of authoritarian regimes and countries. Of these, the transition of Pakistan's General Pervez Musharraf from pariah to ally must be the most remarkable. The US, a global power of unparalleled reach and influence, is now subordinating all other objectives and priorities to the central strategic goal of defeating terrorism. These developments also have their impact in Africa where relations with countries such as Libya and Sudan (accused by the US of being guilty of state support to terrorism) and others such as Angola and Somalia have undergone important changes. Must important, however, is a return to Cold War partisanship and the near abandonment of multilateralism, the promotion of democracy and advancement of human rights. Patterns of foreign aid, military aid in particular, are being adjusted accordingly.

In implementing UNSC Resolution 1373 and the provisions reflected in the Algiers Convention, Africa will find itself facing a range of challenges apart from competing legal traditions and practices. What should be avoided is a situation in which the human rights regime is considered suspended until international terrorism has been 'dealt with'. There is no indication that the current vigilance against international terrorism, and more particularly, transnational organised crime, will ever become unnecessary. Both the body of human rights law as well as the developing regime against terrorism and transnational organised crime are therefore intended to last in the long term and to create a peaceful, just society, both internationally and domestically. This is a particular focus of some of the contributions to this monograph.

The dilemma for Africa is the need to act against terrorists as a national security risk without destroying the often tenuous rule of law that exists in many of our constituent states. There is a need to ensure that those legal tools do not undermine values that are fundamental to democratic society—liberty, the rule of law, and the principles of fundamental justice—values that lie at the heart of the international and African constitutional orders, international instruments and United Nations Security Council resolutions which are binding on African States. The African Charter of Human and Peoples' Rights, in force since October 1986, has already been ratified by almost all African states and can be expected to inform the development of constitutional human rights law in Africa.

This exposes Africa to potential conflicts between two or more competing legal regimes. For example, Article 12 of the Convention against Transnational Organized Crime, for example, requires States to enact domestic laws that grant wide powers of confiscation, freezing or seizure of property or proceeds derived from organized crime. This would include the power to seize property where illegitimately obtained property has been intermingled with that derived by legitimate means. In either case, the onus will rest with the alleged offender to show that the property seized derived from lawful activity. It is important to note that article 7(1) read with articles 3 and 14 of the African (Banjul) Charter protects the right of property, the right to have one's case heard before a court and the right to be presumed innocent until proven guilty.

To some these contradictions are latent in the Algiers Convention when read with associated African positions. For example, Article 3(1):

"the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts." This sits uncomfortably with the Grand Bay Declaration on Human Rights signed by the OAU in the same year (1999), Article 8(q), which defines terrorism (for whatever motives) as a violation of human rights.

In the end it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing Africa's commitment to those values reflected in the Banjul Charter. Africa's challenge is to implement agreements and legislation that effectively combat terrorism while conforming to the requirements of international human rights law and international commitments. Provisions contained in the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966) and the African Charter on Human and Peoples' Rights (1982) must be respected and the rights contained therein protected.

Operationalising and Supplementing the Algiers Convention

The Algiers Convention was adopted prior to September 11th 2001, the adoption of United Nations Security Council Resolution 1373 (2001) and the coming into force of the International Convention for the Suppression of the Financing of Terrorism (1999). To some the international developments since the attack on the World Trade Centre and on Washington D.C. require a revision of all the anti-terrorism efforts that went before. This is an extreme view, and not one shared by most. It is self-evident that UNSC Resolution 1373 is unprecedented. It was adopted in terms of Chapter VII of the Charter of the United Nations and reflects no less than an attempt at global legislation.

In terms of international law all States are obliged to comply with its provisions, although the extent of detail compliance remains unclear at best. These include the requirement to criminalize the financing of terrorism, to freeze funds and other financial or economic resources of persons who commit or attempt to commit terrorist acts or participate in such acts. The Algiers Convention does not deal with the issue of the criminalisation of the financing of terrorism and the related issues but since this is the focus of the much more comprehensive Convention for the Suppression of the Financing of Terrorism of 1999, probably not anything that requires action by Member States of the African Union.

Articles 4 and 5 of the Algiers Convention provide for areas of co-operation between States to give effect to the other provisions of the Algiers Convention. States are required to exchange information, assist with regard to procedures for the investigation and arrest of suspected terrorists, exchange studies and research and expertise on how to combat terrorist acts and provide technical assistance in order to improve their scientific, technical and operational capacities. State Parties are required to prevent their territories from being used as a base for the planning, organization or execution of terrorist acts. They are to co-ordinate with regard to illegal cross-border transportation, importation, export, stockpiling and use of arms, ammunition and explosives.

Borders, customs and immigration points are to be developed and strengthened in order to pre-empt any infiltration by perpetrators of terror. States are to ensure when granting asylum, that the asylum seeker is not involved in any terrorist act and to either extradite or arrest and try perpetrators of terrorist acts. These judicial provisions will shortly be supplemented by the proposed OAU Conventions on Extradition and on Mutual Legal Assistance. The former is already at an advanced stage of work and should be presented to the Council of Ministers for recommendation to Heads of State shortly. The OAU Convention on Mutual Legal Assistance has a longer road ahead, still having to be presented to experts for discussion and finalization.

Perhaps the biggest shortfall in Africa's engagement in the global campaign against terrorism is the absence of an effective and efficient continental mechanism to support the required co-operation between States, to give effect to the purposes and objects of the Algiers Convention, to implement its operative provisions and to assist the Member States of the proposed African Union to comply with their international law and continental obligations. This is not a challenge limited to this Convention, but common to a number of African instruments and one that the newly established Commission of the African Union should address as an urgent issue.

Perhaps most important, unlike initiatives such as those regarding drugs and refugees, African leaders have yet to agree to an Action Plan to translate their commitments regarding the Algiers Convention into action, to mobilise the resources for such an Action Plan and to monitor its compliance. This endeavour, more than most, is one worthy of concerted action by African leaders.

Conclusion

This monograph and the writings therein reflect largely on what can be termed 'international terrorism', as opposed to domestic or sub-national terror. Terrorism is neither necessarily international or sub-national, although the present campaign targets terrorist groups that have what US President Bush has termed 'global reach'. In Africa, particularly in Algeria, Sudan, Somalia and previously in Sierra Leone and Liberia terrorist acts have become a recurring feature of essentially local conflicts—even if their actions sometimes have wider regional and global consequences. The danger, from the perspective of many, is the tendency to conflate all into a global war on terrorism, often with the real intention by governments and others to suppress political demands for some level of self-determination, political engagement or recognition of certain rights.

In some cases US and international support for tough action by governments may result in the escalation of conflicts and further polarisation within the countries concerned. In cases where terrorist acts are characteristic of essentially local conflicts experience suggests that security measures alone will not end the violence and that some form of political accommodation and settlement will be equally required.


African governments have always faced the dilemmas in balancing security interests and support for democracy and human rights. The events of September 11th, 2001 have shifted these balances, not always with predictable results. New opportunities for peace have emerged in some countries, in part a reflection of the adage that security is a prerequisite for development. In others international punitive action may exacerbate the tenuous degree of local stability that may exist as is the case in Somalia.

What is self-evident is that without a functioning, nationally recognised central government, failed and weak African states provide a safe haven for domestic and international terrorism alike. No military operation can make these countries safe if not linked with a process aimed ultimately at reconciliation and the reconstruction of a functioning state with a government in control of its territory, both urban and rural, and its land, sea and aerial borders. Above all, strong international engagement to bring peace internally and to reconstruct failed, weak and undemocratic states is the strategic challenge facing Africa and the international community.