Introduction

'The promotion and protection of human rights is central to an effective strategy to counter terrorism.' 1 Inherent in this statement are two important and inter-related dimensions. Firstly, the need to ensure that measures designed to combat terrorism do not impermissibly limit human rights and fundamental freedoms and, secondly, the recognition that terrorism puts under threat the full enjoyment of civil liberties and human rights. The need to ensure that the fight against terrorism remains vigilant to the protection of entrenched human rights has been the subject of much academic, international and non-governmental commentary. Equally, the link between terrorism and the achievement of human rights has received increasing attention. The progress report of the United Nations Special Rapporteur on Terrorism and Human Rights points out that 'there is probably not a single human right exempt from the impact of terrorism'.2

This chapter focuses on the first perspective. However, a full discussion of the topic needs also to consider that the need to combat terrorism is closely linked to the achievement of human rights in Africa. The OAU Convention on the Prevention and Combating of Terrorism adopts this approach. The preamble to the Convention declares its concern for the dangers which terrorism poses to the stability and security of states. It notes that terrorism is a serious violation of human rights, 'and in particular the rights to physical integrity, life, freedom, security' and socio-economic development. It also highlights the adverse impact of terrorism on the 'lives of innocent women and children [who] are most adversely affected by terrorism.'3 Resolution 36/7 adopted by the Commission on the Status of Women also declares its 'profound concern' about the 'persistent acts of violence perpetrated in various countries by armed groups and by drug traffickers who terrorise the population and threaten in particular the safety and lives of women and children.' 4 We submit that like armed conflict, terrorism often targets vulnerable groups such as women and girls disproportionately.5 This includes acts of rape and the use of sexual slavery as a method of terror. It is beyond the scope of this chapter to pursue the link between instability caused by terrorism and the equality of men and women, a phenomenon which is extremely well documented under both domestic and international law.6 In more general terms, we note the extent to which acts of terrorism may affect the rights to life, dignity, liberty, equality, freedom from torture, as well as a number of social and economic rights. From this perspective, in the adoption of anti-terrorism laws, states must be seen to be responding to their affirmative duty under international law to promote and protect the human rights of all their citizens.

It is important that the difference between terrorism and armed conflict is borne in mind. As the Special Rapporteur on Terrorism and Human Rights points out, international humanitarian law, which includes the laws of war, applies to situations of armed conflict, whether international or civil. Acts of war consistent with this body of law are neither criminal nor terrorist acts.7 Practically, this means that a combatant captured in a civil war obtains prisoner-of-war status and may not be prosecuted, unless accused of war crimes. In situations of armed conflict, international humanitarian law provides protection, including fair trial rights.

This chapter is divided into three parts. The first part deals with the relevant international and selected domestic initiatives to combat terrorism. The countries selected for the study were based on accessibility of information, new anti-terrorism initiatives and the extent to which their legislation illustrated the main human rights concerns. The second part of the chapter covers relevant human rights protections in Africa. In the light of these protections, the final part outlines some of the human rights concerns and issues which arise from counter-terrorism instruments.

Initiatives to combat terrorism

International Initiatives

A number of regional and international anti-terrorism conventions pertain to African states. The first international conventions on terrorism were designed to criminalize specific types of terrorist acts, such as the hijacking of aircraft.8 Work has continued on this basis, with United Nations General Assembly adopting the International Convention for the Suppression of the Financing of Terrorism on 9 December 1999. Despite a more conducive environment post September 11, efforts to arrive at a comprehensive convention on international terrorism have stalled largely over political issues relating to the definition of terrorism. At the regional level there is the important OAU Convention on the Prevention and Combating Terrorism, 1999. The Convention contains a comprehensive definition of what constitutes a 'terrorist act', but avoids a politically contentious issue by excluding from the definition struggles waged by peoples for liberation or self-determination, in accordance with international law.9 Also at the regional level, the League of Arab States, which counts 9 African states among its 22 members, has adopted the Arab Convention for the Suppression of Terrorism.10 The Organization of the Islamic Conference, of which a number of African states are members, has also adopted a convention against terrorism.11 At the regional and sub-regional level there are further mechanisms and arrangements to combat terrorism, such as intergovernmental cooperation, which fall outside the scope of this chapter.

Resolution 1373 of 28 September 2001, which the Security Council adopted under the binding provisions of chapter VII of the United Nations Charter, requires states, inter alia, to criminalize the financing of acts of terrorism.12 Essentially, the Council fast-tracked elements borrowed from the Convention for the Suppression of the Financing of Terrorism, which became binding on all states, without the cumbersome process of signatures, ratification and reservations. This amounts to law-making and is an exceptional exercise of the Council's powers under the Charter. The Council also called upon states to become parties to relevant counter-terrorism conventions.

The Convention for the Suppression of the Financing of Terrorism is the most recent international convention adopted on terrorism. According to the Convention a person commits an offence by providing or collecting funds with the intention or in the knowledge that they are to be used to carry out, firstly, any act falling within the scope of 9 earlier international counter-terrorism treaties, and, secondly,

'[a]ny other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.' 13 This cautious expansion in the definition of what constitutes an offence is taken even further in the OAU Convention. Briefly, a terrorist act is any act that may cause serious injury or death to any person or group of persons, or may cause damage to public or private property and is calculated or intended to, among other things, intimidate, or coerce any government, the general public or segment thereof, to do or abstain from doing any act.14 Similarly, acts to disrupt any public service or create a general insurrection in a state are also defined as terrorist acts. Secondly, the promotion, sponsoring, contribution to, attempt and threat, with intent to commit any of the earlier specified acts, is a terrorist act.

On the other hand, the Arab Convention for the Suppression of Terrorism defines terrorism as

'[a]ny act or threat of violence whatever its motives or purposes, that occurs in the advancement of [a]…criminal agenda and seeking to sow panic among people among people, causing fear by harming them, or placing their lives, liberty or security in danger, or seeking to cause damage to the environment or to public or private installations or property…or seeking to jeopardize a national resource.' 15 These definitions will be revisited below, in the discussion of the intersection between anti-terrorism norms and human rights guarantees.

Domestic Initiatives

Pursuant to paragraph 6 of Security Council resolution 1373 discussed above, states were required to report to the Counter-Terrorism Committee, a subsidiary organ of the Council, on steps taken to implement the resolution. While the Committee has no powers of sanction, the establishment of this novel body signals the seriousness of the Council in relation to international terrorism. A number of African countries submitted reports on the anti-terrorism measures in place in their respective countries.16 With a few exceptions, most countries have not yet passed new legislation pursuant to resolution 1373, and reported to the Committee on legislation and other measures which have been in place for a number of years. These cover a broad range of areas, including measures to deal with money laundering and organised crime and laws relating to border controls and refugees. Many countries have recently established executive national bodies tasked with the responsibility of ensuring that they adhere to their obligations under the Security Council resolutions on terrorism. These countries include Botswana, the DRC, Malawi and South Africa.

Other countries, including Mauritius, Nigeria and South Africa, have started the process of putting in place new legislation to combat terrorism since September 11. Mauritius recently passed the Prevention of Terrorism Act 2 of 2002. In Nigeria, the Anti-Terrorism, Economic and Financial Crimes Act is presently before Parliament. And in South Africa, the new Anti-Terrorism Bill is designed to replace the apartheid era Internal Security Act, the latter being limited to crimes of terrorism committed against the state. The proposed South African Bill, currently distributed as a discussion paper for general comment, has been criticised for a number of its provisions which, it is asserted violate South Africa's own constitution as well as international human rights law. In particular these arise from the definition of what constitutes a terrorist act, and from the detention without trial provisions. The definition of a terrorist act in the draft Bill is based on that contained in the OAU Convention.17 The Bill also authorises detention without trial—which must be authorised by a judicial officer—for the purposes of interrogation for up to 14 days. A detainee would not be able to approach a court to be released or to apply for bail.

In Mauritius, the Prevention of Terrorism Act 2002 was signed into law amidst much criticism that it is too draconian, has a rigid and overly wide definition of what constitutes an act of terrorism and violates basic rights of suspects and accused persons.18 The legislation has an extensive definition of what constitutes an act of terrorism in section 3. It is not only an offence to carry out or threaten an act of terrorism, but also to omit doing anything reasonably necessary to prevent an act of terrorism. A person arrested in terms of the Mauritian legislation may be held in custody for up to 36 hours without having access to any person other than a police officer above a certain rank.19 The trial may also be closed to the public. The Act provides that a court may exclude from the trial any person other than the parties and their legal representatives.20

In Egypt, terrorism is defined as

'any use of force or violence or any threat or intimidation to which the perpetrator resorts in order to carry out an individual or collective criminal plan aimed at disturbing the peace or jeopardising the safety and security of society and which is of such a nature as to harm or create fear in persons or imperil their lives, freedoms or security; harm the environment; damage or take possession of communications; prevent or impede the public authorities in the performance of their work; or thwart the application of the Constitution or of laws or regulations.' 21

Egypt's definition of terrorism is similar to that found in the Arab Convention. The Human Rights Committee set up under the ICCPR noted that the definition of terrorism in the Egyptian Penal Code was 'so broad that it covered a wide range of acts of differing gravity.' 242 In Egypt, the death penalty may be imposed for crimes of terrorism. Under the 1981 Emergency Law, Egypt also makes use of special military courts for the prosecution of alleged terrorist activity, which continues to 'infringe on a defendant's normal right under the constitution to a fair trial before an independent judiciary.' 23 The Emergency Law allows detention without charge for up to 30 days. There is no maximum limit to the length of detention if the judge continues to uphold the legality of the detention order. The Emergency Law also permits the executive to issue a warrant of arrest for an individual who may pose a danger to security and public order. It has been said that 'this procedure nullifies the constitutional requirement of showing that an individual likely has committed a specific crime to obtain a warrant from a judge or prosecutor'.24 The military courts are headed by military officers appointed by the minister of defence. The decisions of the military courts are reviewed by other military judges and subject to confirmation by the President, who in practice delegates this task to a senior military officer. State Security Emergency Courts share jurisdiction with military courts over crimes affecting national security.25

The Algerian legislation defines an act of terrorism as 'any offence targeting State security, territorial integrity or the stability or normal functioning of institutions through any action seeking to' inter alia, spread panic or create a climate of insecurity, disrupt traffic or freedom of movement on roads, harm the environment or impede the activities of public authorities or institutions.26 A person may be placed in custody for the purposes of 'criminal investigation needs' for crimes relating to terrorism for up to 12 days. Pre-trial detention, while described as an exceptional measure, in relation to terrorism can be extended 5 times for a period of four months at a time by a judicial officer.27 As in Egypt, the death penalty may be imposed.

The human rights regime

International protection

The International Bill of Rights—consisting of the Universal Declaration of Human Rights, and two the Covenants, on Civil and Political Rights, and Economic, Social and Cultural Rights—is the bedrock of human rights guarantees and standards. The International Covenant on Civil and Political Rights (ICCPR) fleshes out the relevant parts of the Universal Declaration. Of the 148 States Parties to the Covenant, 44 are from Africa.28 The African Charter on Human and Peoples' Rights, also known as the Banjul Charter, which entered into force on 21 October 1986, has been ratified by all member states of the OAU.

The African Charter, like the ICCPR, recognizes and protects the fundamental civil and political rights: equality before the law (article 3); the right to dignity, and the prohibition of slavery, torture, cruel, inhuman and degrading punishment (article 5); fair trial rights, such as the right to be presumed innocent (article 7); freedom of expression (article 9); and freedom of association (article 10). However, unlike the ICCPR, the Charter contains no derogation clause for emergencies; article 4 of the ICCPR makes it possible, in a time of public emergency threatening the life of the nation, for states to derogate from their obligations 'to the extent required by the exigencies of the situation'. No derogation is permitted, among others, from the prohibition against torture, cruel and inhuman treatment, the right not to be deprived of life arbitrarily, and the prohibition against slavery. In the absence of a general derogation clause, rights in the Charter are either not restricted, or are limited by so-called 'claw-back clauses'. Thus, article 9(2) provides that '[e]very individual shall have the right to express and disseminate his opinions within the law' [italics added]. Such limitations may deeply erode the rights in question because there is no criteria are set for permissible limitations of the fundamental rights contained in the Charter. Not all rights are subject to claw-back clauses; several important rights, such as the right to dignity and the prohibition of torture (article 5), as well as the fair trial provisions (article 7) are not restricted.

As originally conceived, the African Charter was not possessed of an enforcement mechanism, such as the European Court of Human Rights which is entrusted with enforcing the European Convention on Human Rights. However, article 30 of the Charter established the African Commission on Human Rights 'to promote human and peoples' rights and ensure their protection in Africa.' Pursuant to article 62 parties are required to submit reports on a two-yearly basis 'on the legislative and other measures taken with a view to giving effect to the rights and freedoms' entrenched in the Charter. Factors outside the control of the Commission, such as the infrequency or total lack of reporting, and the paucity of information contained in state reports, among things, have hamstrung the reporting system as a means to monitor and improve the observance of Charter rights.29

The Commission may investigate complaints levelled by individuals against states. Article 58 foresees investigation of 'special cases which reveal the existence of a series of serious or massive violations'. In practice the Commission has investigated complaints and made recommendations to the state(s) concerned. The Commission has proceeded cautiously in interpreting its powers. A major advance came in 1993, when it adopted a less restrictive interpretation of the confidentiality provisions, and began to mention in its annual reports the states against which complaints had been made. Recent reports contain a summary of the allegations, the response received from the State Party, the law, and the Commissions decision.30 This begins to deal with one of major weaknesses identified in the Commissions working methods.31 Overall, a lack of publicity of its activities, caution on the part of Commissioners, and a shortage of resources have hampered the Commission's work. Enforcement procedures are entirely unsatisfactory, consisting of no more than reporting to the Assembly of Heads of State and Government of the OAU. The establishment of the African Court on Human and Peoples' Rights, provided for in a protocol to the African Charter, presents an important opportunity to truly develop the protections in the Charter.32 If and when the court is established, the African Commission will be one of the parties entitled to submit cases to it. Complaints by individuals are possible, but depend on the states choosing to recognise this optional jurisdiction. How many states will do so remains to be seen. The role of the Commission will become even more crucial, and it will have to assert itself as the protector of human rights on the African continent.

Domestic Trends

The trend towards constitutionalism, multi-party democracy and the entrenchment of human rights on the African continent picked up steam during the 1990's. Many countries, including Algeria, Cameroon, Côte D'Ivoire, Djibouti, Ethiopia, Guinea, Liberia, Malawi, Mali, Mauritania, Mozambique, South Africa and Zambia held multi-party elections in this decade. In addition, many African countries adopted constitutions with entrenched fundamental rights during this time. These include Botswana, Ethiopia, Ghana, Guinea, Guinea-Bissau, Malawi, Mali, Mauritania, Mozambique, Namibia and South Africa.33 The vast majority of countries in Africa have elaborate constitutions, with civil and political rights, including the rights to gender equality, freedom of expression and fair trial rights contained in them. In addition, many countries have economic and social rights in their constitutions, including environmental rights. At the regional level, there have been moves recently towards recognising the rule of law and the protection of human rights. The New Partnership for Africa's Development (NEPAD), drafted by the governments of Algeria, Egypt, Nigeria, Senegal and South Africa, declares 'the expansion of democratic frontiers and the deepening of the culture of human rights' to be its foundational pillars. Under NEPAD, African leaders undertake the responsibility of 'promoting and protecting democracy and human rights in their respective countries and regions, by developing clear standards of accountability, transparency and participatory government at the national and sub-national levels'. The provisions of the treaty establishing the African Union strengthened the commitment of its member states to human rights, including an investigation into the establishment of a court of justice.

However, constitutions and Bills of Rights cannot in themselves guarantee the protection of human rights. Constitutionalism and the protection of human rights in Africa continues to have mixed success. Political and social unrest and instability continues in many parts of Africa and human rights abuses by both state and non-state actors are well-documented, even in countries with entrenched constitutional and statutory human rights protections. This phenomenon needs to be urgently addressed, and it is submitted, cannot be allowed to be exacerbated in the name of combating terrorism.

Reconciling the fight against terrorism and human rights

In the light of the human rights instruments discussed above, we now move on to highlight some of the human rights concerns which arise from both international and domestic initiatives to combat terrorism. In particular we deal with the following: the definition of terrorism; detention without trial; the right to a fair trial, including the use of closed trials and the use of special courts; and the death penalty. We also deal briefly with the right to freedom of expression and privacy.34 In analysing these issues, we examine the extent to which such measures are a justifiable and legitimate suspension or limitation of rights under international law. Both under international and domestic law, rights may be limited, suspended or derogated from under certain circumstances. While the principle of proportionality is inherent in most domestic instruments, there may be a great degree of variation in the manner in which domestic courts would respond to the constitutionality of domestic anti-terror measures. This would depend on a number of factors, ranging from the courts' constitutional jurisdiction to their already-developed jurisprudence on political questions and deference to the elected branches of government. Thus, in this section we focus exclusively on permissible limits on rights provided for in the ICCPR and the African Charter.

As a starting point it must be noted that the permissible derogations under the ICCPR are very limited. As stated above, there are a number of non-derogable rights. In addition article 4 of the ICCPR allows derogation from its provisions only 'to the extent strictly required by the exigencies of the situation.' Any derogation measure must in addition be of an exceptional nature, subject to regular review and must not involve discrimination.35 In addition, the African Commission on Human and Peoples' Rights has interpreted the Charter to neutralise the most egregious effects of the so-called "claw-back" clauses that restrict a number of important tights in the Charter. It has held 'that 'claw-back' clauses must not be interpreted against the principles of the Charter'36 and that '[t]he reasons for possible limitations must be founded in a legitimate state interest and the evils of limitations of rights must be strictly proportionate with and absolutely necessary for the advantages which are to be obtained… [A] limitation may never have as a consequence that the right itself becomes illusory.' 37

The principles of proportionality and necessity are inherent under international law. Thus, outside of emergency situations, it is also permissible to limit rights for legitimate purposes if the measures taken are proportional to the objective, and is the least intrusive means to achieve the objective.38 While we believe that measures to combat terrorism must be seen as part of part of the state's obligation to promote and protect human rights, we also endorse the view that 'all measures to counter terrorism must be in strict conformity with international law, including international human rights standards.' 39

Definitions of Acts of Terrorism

A common theme that runs through both the international and domestic instruments to combat terrorism is the broad range of conduct defined as terrorism. The starting point for many definitions of terrorism is a violent act committed with the purpose of intimidating a population or compelling a government to do or abstain from doing something. Thus, the basic concept of the definition in the OAU Convention rests on these two pillars: first, the commission of an act that causes or may cause death or injury; second, that the act was intended to intimidate the government, the population or disrupt any public service. The Arab Convention contains an arguably broader definition of terrorism.40 As pointed out earlier, there is also much similarity between these definitions and those found in domestic law.41

The broadness and vagueness of the definition of acts of terrorism needs attention and cannot be seen to be a legitimate limitation of rights. A basic tenet of the principle of legality is that legislation should not be vague and should define with reasonable precision the ambit of prohibited conduct.42 In addition, the definitions appear to cover a wide range of activity, and overlap significantly with other existing common law or statutory crimes in many countries. Under the definition of the OAU Convention, a strike by teachers or municipal workers—an action that could be interpreted as being 'calculated' to 'disrupt a public service'—in the course of which some incidental damage is caused to public or private property, could be construed as a 'terrorist act'.

Since the classification of conduct as an act of terrorism is frequently accompanied by an abridgement of procedural and fair trial safeguards, it is all the more crucial that the crime is precisely and restrictively defined. This is even more so when it is punishable by death. How to define terrorism is of course a particularly vexed issue—the Special Rapporteur on Terrorism and Human Rights notes that the 'definitional problem is the major factor in the controversy regarding terrorism'.43 We do not believe that broad definitions of acts of terrorism can be justified. Since counter-terrorism is designed to address specific conduct, the necessary definitions ought to be delineated with precision.

Detention Without Trial

As outlined above, in their efforts to combat terrorism, some countries have provided for detention without trial. In addition, the Arab Convention provides that persons may be detained without trial for up to 60 days pending extradition.44 Prolonged detention without charge or trial is a drastic erosion into the right to liberty and must be seen as a measure of last resort. Under any circumstances, compelling reasons need to present before resorting to detention without trial because of its potential for the use of torture. In this regard, article 11 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Punishment requires States Parties to keep under 'systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest and detention' with the aim of preventing any cases of torture.45 The Human Rights Committee, commenting on article 9 (liberty and security of the person) of the ICCPR, has stated that the period of custody before an individual must be brought before court may not exceed a few days.46

Much conduct that potentially constitutes terrorist acts falls short of the 'compelling reasons' requirement. In addition, it is clear that the 'adequate safeguards' requirement may also frequently be absent. The Human Rights Committee, addressing the question of derogations from rights under article 4, held that

'States Parties may in no circumstances invoke Article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance…. through arbitrary deprivations of liberty or by deviating from fundamental principles of a fair trial, including the presumption of innocence.' 47

Further, the Committee underlined that for non-derogable rights to be upheld, recourse to a court to decide the legality of detention had to be preserved when a state decided to derogate from the Covenant.

Concerns about detention arise in relation to the conventions, because they require a state to 'take the appropriate measures under its national law' to ensure the presence for the purpose of prosecution of a person alleged to have committed a terrorist act.48 Measures under national law are not an adequate safeguard. The conventions do mandate certain protections, such as access to a lawyer, but these must be supplemented by the provisions of international human rights law.

Right to a Fair Trial

Special/Military Courts

A number of countries provide for special or military courts to try terrorist offences. The trial of civilians before military courts raises questions, although it is permissible under the ICCPR. Problems also arise in relation to the independence of military courts and special tribunals. The Committee Against Torture has criticised military courts where it has found that they are subordinate to the head of the executive branch.49 In its decision on the trial of Ken Saro-Wiwa and others in Nigeria, the African Commission held that the trial violated Article 7(1)(d) because the composition of the tribunal, established under the Disturbances (Special Tribunals) Decree No. 2 of 1987, was at the discretion of the executive branch.50 The Commission held that

'[r]emoving cases from the jurisdiction of the ordinary courts and placing them before an extension of the executive branch necessarily compromises their impartiality, which is required by the African Charter. This violation of the impartiality of tribunals occurs in principle, regardless of the qualifications of the individuals chosen for a particular tribunal.'

A violation of article 7(1)(a) was also found, because the only avenue for appeal or review was the ruling council of the Federal Military government, composed exclusively of members of the armed forces.

Special tribunals must be an exceptional measure, used only because of the inability of the ordinary criminal justice system to speedily and effectively bring a suspected terrorist to book. Where they are seen to be necessary, such tribunals must conform to the requirements of a competent, independent and impartial tribunal, and give effect to fair trial rights.

Death penalty

Article 4 of the African Charter provides that no one 'may be arbitrarily deprived' of the right to life. As mentioned earlier, a large number of African countries retain the death penalty. The OAU Convention on the Prevention and Combating of Terrorism requires States Parties to proscribe terrorist acts, punishing them with penalties 'that take into account the grave nature of such offences'. While acts of terrorism may be very grave, states should bear in mind that the death penalty is an extreme exception to the right to life and should be applied only to the most serious crimes.51 Further, under the ICCPR, the Human Rights Committee has stated, that 'any trial leading to the imposition of the death penalty during a state of emergency must conform to the provisions of the Covenant, including all the requirements of [the right to a fair trial]'.52 In many cases the lack of procedural safeguards makes the imposition of the death penalty a clear and unjustified violation of international law.

Both the counter-terrorism conventions entrench the principle of extradite or punish.53 The extradition provisions of the conventions have the potential to clash with the human rights commitments by states not to extradite alleged offenders to jurisdictions where they could face the death penalty.54

Other rights

A number of other human rights issues also arise from the international and domestic regime designed to deal with terrorism. Articles 3 and 4 of the Arab Convention deal with surveillance and monitoring systems and the creation and development of databases and information on combating terrorism. In a similar vein, Article 4(b) and (e) of the OAU Convention deal with monitoring and data collection on terrorist elements and groups. Given that the scope of what constitutes terrorist elements of acts is extremely broadly defined, these provisions may constitute a serious violation of the right to privacy and may include the monitoring and collection of information on peaceful and non-criminal activity.55 Under some domestic laws, search and seizure provisions may also constitute an unjustifiable limitation on the right to privacy.

The right to freedom of expression may also be implicated under the conventions. The clearest example of this arises from the definition of what constitutes a terrorist act. Under article 3(b) of the OAU Convention for example, the definition of a terrorist act is defined to include any promotion, sponsoring… incitement, encouragement … or procurement' of such act. Again, it would be difficult to justify such a blanket and far-reaching limitation of the right and unless it is carefully tailored to meet the ends of fighting terrorism, would not be permissible under either the ICCPR or the African Charter.

This part of the chapter has looked at the extent to which measures designed to combat terrorism constitute a violation of certain rights. It is important that states, when adopting such measures, be vigilant about ensuring the continued protection of rights. In this regard, states may find the listed guidelines suggested by the High Commissioner for Human Rights useful.56 In this document, specific criteria are set out for the balancing of human rights protection and the combating of terrorism.

Conclusion

This chapter has argued that acts of terrorism may cause grave human rights violations. An effective reponse is thus called for. Conflict, of which terrorism is a particularly virulent strain, has both immediate and long-term causes. In the short term, legal measures are the international community's response to the manifestation of terrorism. These must be consonant with with the human rights protections enshrined in international law. Otherwise the very conditions necessary for long-term stability, and fostered and nurtured by the respect for human rights, will not exist.