Notes

Published in Monograph No 74, July 2002

Africa and Terrorism, Joining the Global Campaign

CHAPTER 2

  1. Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights, E/CN.4.2002/18 par 7.

  2. Progress report submitted by the Special Rapporteur on Terrorism and Human
    Rights     UN Doc E/CN.4/Sub.2/2001/31 par 102.

  3. See the preamble to the OAU Convention on the Prevention and Combating of Terrorism, adopted at Algiers on 14 July 1999.

  4. UN Doc E/CN.6/RES/36/7.

  5. See Fourth World Conference on Women Platform for Action Women and Armed Conflict, p 3. Available on the web at <www.un.org/womenwatch/daw/beijing/platform/armed.htm>.

  6. See for example Preliminary Report submitted by the Special Rapporteur on Violence Against Women UN Doc E/CN.4/1995/42 at par 99-101; A E Ray, The shame of it: gender-based terrorism in the former Yugoslavia and the failure of international human rights law to comprehend the injuries, American University Law Review, vol 46, 1997, p 793; A Caiazza, Why gender matters in understanding September 11: women, militarism and violence, Institute for Women's Policy Research, 2001, p 1.

  7. Progress report submitted by the Special Rapporteur on Terrorism and Human Rights, op cit.

  8. For example, Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970.

  9. Articles 2 and 3.

  10. Adopted at Cairo on 22 April 1998, entered into force on 7 May 1999.

  11. The Convention of the Organization of the Islamic Conference on Combating International Terrorism, adopted at Ouagadougou on 1 July 1999.

  12. S/RES/1373 (2001).

  13. Article 2(1)(a)-(b).

  14. Article 1(3)(a).

  15. Article 2.

  16. These are available on the web at <http://www.un.org/Docs/sc/committees/1373/>.

  17. See section 1 of South Africa's proposed Anti-Terrorist Bill in the report of the South African Law Commission Discussion Paper 92.

  18. The passage of the legislation was so controversial that Mauritius had a change of presidency four times in one month-as successive presidents refused to sign the Bill into law on the grounds of its violation of human rights.

  19. Section 27(1).

  20. Section 29(3).

  21. Egypt's report to the counter-terrorism committee. UN Doc S/2001/1237, p 4.

  22. Quoted in Amnesty International, The Arab Convention for the Suppression of Terrorism a Serious Threat to Human Rights, AI Index IOR 51/001/2002 p 19-20. Available on the web at <www.web.amnesty.org/ai.nsf/recent/IOR510012002>.

  23. US Department of State, Country Reports on Human Rights Practices 2001—Egypt, 4 March 2002.

  24. Ibid.

  25. Ibid.

  26. See Algeria's report to the counter-terrorism committee, UN Doc S/ 2001/1280 p 6.

  27. Ibid op cit 7-8.

  28. As of 13 May 2002, 45 of 54 African States, including Morocco, are parties to the Covenant.

  29. F Viljoen, State reporting under the African Charter on Human and Peoples' Rights: a boost from the south, Journal of African Law, vol 44, 2000, p 110.

  30. See Annex V to the Twelfth Annual Activity Report of the African Commission on Human and Peoples' Rights, 1998 -1999, Twenty-fourth and Twenty-fifth Ordinary Sessions, 26 April to 5 May, 1999: Banjul, Gambia. The Activity Report is available at <http://www1.umn.edu/humanrts/africa/comision.html>.

  31. V O Nmehiele, Towards an African court of human rights: structuring and the court, Annual Survey of International & Comparative Law, vol 16, 2000, p 31; UO Umozurike, The African Charter on Human and Peoples' Rights, 1997, p 78-79.

  32. The Protocol was adopted by the OAU Assembly at Ouagadougou, on 9 June 1998.

  33. Human Rights in Africa Law Series, available on the web at <www.up.ac.za/chr/hrlas/hrlas.html>.

  34. A number of other rights that may also be implicated, for example the right to property and the rights of refugees, are covered elsewhere in this monograph.

  35. Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights, op cit, par 11.

  36. Decision of the African Commission, ACHPR/212/98, p 42.

  37. Decision of the African Commission, ACHPR/105/93, 128/94, 130/94, 152/96 p 69-70.

  38. Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights, op cit, par 14.

  39. UN Commission on Human Rights Resolution 2001/37 (2001).

  40. See in particular Amnesty International The Arab Convention for the Suppression of Terrorism a Serious Threat to Human Rights, op cit, p 18-20.

  41. For example South Africa and Egypt.

  42. E Steyn, The Draft Anti-Terrorism Bill of 2000: the lobster pot of the South African criminal justice system?, South African Journal on Criminal Justice, vol 14, 2001, p 184.

  43. Progress report submitted by the Special Rapporteur on Terrorism and Human Rights, op cit, par 25.

  44. Articles 24 and 26.

  45. M Cowling, The return of detention without trial? Some thoughts and comments on the draft anti-terrorism Bill and the Law Commission report, South African Journal on Criminal Justice, vol 13, 2000, p 354.

  46. Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights, op cit, par 15.

  47. HRC General Comment 29 UN Doc CCPR/C/21 Rev.1, 2001 par 11.

  48. OAU Convention, article 7; Suppression of Terrorist Financing, article 9.

  49. Committee Against Torture: Egypt, UN Doc 12/06/94.A/49/44 par 88.

  50. Decision of the African Commission, ACHPR/137/94, 139/94, 154/96 and
    161/97.

  51. Report of the Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions, UN Doc E/CN.4/2001/9 par 76.

  52. HRC General Comment 29, op cit, par 15.

  53. OAU Convention, article 8(4); Convention for the Suppression of Financing of Terrorism, article 10(1).

  54. In this regard see for example the decision of the South African Constitutional Court in Mohamed v President of the Republic of South Africa 2001 (7) Buttterworths Constitutional Law Reports 685 (CC), which dealt with the obligation on the government to ensure that deportees are not sent to countries where they could face the death penalty.

  55. See also for example section 25 of the Prevention of Terrorism Act 2002
    (Mauritius) that has similar provisions.

  56. Annex to the Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights, op cit: Proposals for further guidance' for the submission of reports pursuant to par 6 of Security Council Resolution 1373'.

CHAPTER 3

  1. The sources of international law are usually read from article 38 of the Statute of the International Court of Justice and comprise treaty, custom, general principles and, as subsidiary sources, legal decisions and the writings of jurists.

  2. North Sea Continental Shelf cases International Court of Justice Reports, 1969, p 3.

  3. This count of African states includes the Western Sahara.

  4. See the Asylum Case International Court of Justice Reports, 1950, p 266 and Rights of Passage Cases International Court of Justice Reports, 1960, p 6 for examples of 'local' custom.

  5. Note that we will not be dealing with the controversial question of whether the mere wide acceptance of a treaty, without extensive proof of accompanying practice, is enough to incorporate the treaty into customary international law.

  6. Article 14 and article 17 respectively.

  7. Including Angola, the Democratic Republic of Congo, Cameroon, Congo, Guinea, Eritrea, Ethiopia, Mozambique, Namibia, Rwanda, South Africa, Uganda and Zambia.

  8. Protected in article 17 of the International Covenant on Civil and Political Rights (ICCPR) and article 12 of the Universal Declaration of Human Rights (UDHR).

  9. For example, Angola, Democratic Republic of the Congo, Egypt, Guinea, Eritrea, Ethiopia, Malawi, Mali, Namibia, Rwanda, Uganda and Zambia.

  10. Article 16 ICCPR, article 6 UDHR and article 3(1) of the African Charter on Human and Peoples' Rights (Banjul Charter).

  11. Article 26 ICCPR, article 7 UDHR and article 3(2) of the Banjul Charter.

  12. Article 2(3)(a) ICCPR and article 8 UDHR.

  13. Under the Universal Declaration of Human Rights this extends further to exile. See article 9(1) ICCPR and article 9 UDHR.

  14. Article 9(3) ICCPR.

  15. Article 14(1) ICCPR, article 10 UDHR and article 7(1) of the Banjul Charter.

  16. Article 14(2) ICCPR, article 11(1) UDHR and article 7(1) of the Banjul Charter.

  17. Article 14(3)(g) ICCPR.

  18. Article 14(3)(d) ICCPR and article 7(1) of the Banjul Charter.

  19. Article 13 ICCPR and article 14 UDHR. Asylum and refugee rights are supported by a whole body of international refugee law, which is discussed in a separate paper and will not be dealt with here.

  20. Article 2(b).

  21. Article 2(e).

  22. Article 3(f).

  23. Article 4.

  24. Article 3(d).

  25. Article 2 SCR 1373 and article 5 of the Convention against Transnational Organized Crime and article 3 of the Arab League Convention.

  26. Article 8 of the Convention on the Suppression of Financing of Terrorism, articles 12 to 14 of the Convention on the Prevention of Transnational Organized Crime, and article 20 of the Arab League Convention.

  27. Article 2(c) SCR 1373 and article 4(2)(a) of the Algiers Convention.

  28. Article 2(g) SCR 1373, article 4(3) of the Algiers Convention and article 18(2) of the Convention on the Suppression of Financing of Terrorism.

  29. Article 2(b) SCR 1373 and article 18 of the Convention on the Suppression of Financing of Terrorism.

  30. Article 2 of the Algiers Convention.

  31. Article 2(e) SCR 1373, articles 5, 6, 8 and 23 of the Convention against Transnational Organized Crime, article 2(a) of the Algiers Convention and article 2 of the Convention on the Suppression of Financing of Terrorism.

  32. Article 4 of the Convention against Transnational Organized Crime, article 8 of the Algiers Convention and article 11 of the Convention on the Suppression of Financing of Terrorism.

  33. Articles 12 and 13 of the Convention on the Suppression of Financing of Terrorism and article 2(b) of the Arab League Convention.

  34. Article 6 of the Algiers Convention.

  35. Articles 24 and 26 of the Arab League Convention.

  36. E Steyn, The draft Anti-Terrorism Bill of 2000: the lobster pot of the South African criminal justice system? South African Journal of Criminal Justice, vol 14, Juta, Johannesburg, 2001, p 187.

  37. Articles 2(f) and 3(a) SCR 1373; article 5 of the Algiers Convention, article 18 of the Convention on the Suppression of Financing of Terrorism and article 4 of the Arab League Convention.

  38. Article 17.

  39. Articles 14 and 16 of the Algiers Convention.

  40. Section II, Articles 9-12.

  41. Article 9.

  42. Article 3(f) SCR 1373 and article 22(1) of the Algiers Convention.

  43. Article 3(1) of the Algiers Convention and article 2(a) of the Arab League Convention.

  44. Article 3 of the Convention on the Suppression of Financing of Terrorism.

  45. As is the case in South Africa, the United States, the United Kingdom, Namibia, Australia and much of Europe. See A J Van der Walt, Civil Forfeiture of the Instrumentalities and Proceeds of Crime and the Constitutional Property Clause, South African Journal of Human Rights, vol 16, Juta, Johannesburg, 2000, p 1-45.

  46. National Director of Public Prosecution v Carolus 1999 (2) Butterworths Constitutional Law Report, 607 (Supreme Court of Appeal).

  47. T W Bennett, Human Rights and African Customary Law, Juta, Cape Town, 1999, p 129-132; T W Bennett, Terminology and Land Tenure in Customary Law, Acta Juridica, 1985, p 173; and M Gluckman, Ideas and Procedures in African Customary Law, Oxford University Press, Oxford, 1969, p 252-265.

  48. The court in Mohamed NO v Director of Public Prosecutions and Another (Cape Provincial Division) (18 March 2002, unreported) noted that the rights of third parties to property linked to crimes can only be protected if they have some opportunity to be heard by the court.

  49. Article 20 of the Arab League Convention.

  50. National Director of Public Prosecutions v Phillips 2002 (1) Butterworths Constitutional Law Reports 41 (Witwatersrand Local Division).

  51. E Steyn, op cit, p 187.

  52. For example, it is debatable that terrorism affects women and children in particular.

  53. The only norms from which the ICCPR permits no derogation are the prohibitions on torture, slavery, retroactive penal laws and the right to life.

  54. State President v Hugo 1997 (6) Butterworths Constitutional Law Reports 708 (CC) par 99, citing The Sunday Times v The United Kingdom 17 (1979) 2 European Human Rights Review 245.

  55. Another example is provided by the links that developed between organized crime and both sides during the anti-apartheid struggle. See generally S Ellis, The New Frontiers of Crime in South Africa, in J-F Bayart, S Ellis and B Hibou, The Criminalization of the State in Africa, Indiana University Press, Bloomingdale, 1999, p 49-68.

  56. Bayart et al, op cit, p 81.

  57. Ibid, p 21.

  58. Iinterview with Willie Hofmeyr, Head of the Special Investigating Unit, 6 May 2002.

  59. Lecture given by J Irish, Institute for Security Studies Seminar on Governance, Organized Crime and Corruption in the SADC region on 18-19 April 2002, Pretoria.

  60. P Gastrow, Organized Crime in the SADC Region: Police Perceptions, ISS Monograph 60, Institute for Security Studies, Pretoria, August 2001, p 64.

  61. Bayart et al, op cit, p 9-10.

  62. Bayart et al, op cit, p 17-18.

  63. Bayart et al, op cit, p 18-19.

  64. Bayart et al, op cit, p 14.

  65. Bayart et al, op cit, p 19.

  66. A Nasaba, Problems Encountered in Extradition and Mutual Assistance Practice: An African Perspective, Commonwealth Secretariat (ed), International Co-operation in Criminal Matters: Balancing the Protection of Human Rights with the Needs of Law Enforcement, 1998, p 129

  67. Ibid, p 130.

  68. P Gastrow, op cit, p 70.

    Commenting on South African draft legislation against terrorism, Michael Cowling and Esther Steyn each criticises the Anti-Terrorism Bill for providing investigative and evidentiary mechanisms that are already contained within South African criminal procedure. See M Cowling, The Return of Detention without Trial? Some Thoughts and Comments on the Draft Anti-Terrorism Bill and the Law Commission Report, South African Journal of Criminal Justice, vol 13, Juta, Johannesburg, 2000, p 358-59; and E Steyn, op cit, p 188. On the substantive law, Jonathon Burchell has objected to the new wave of anti-terror and organized crime legislation on the ground that almost all 'terrorist acts' are already proscribed by South African criminal law (inaugural lecture delivered at the University of Cape Town on 24 April 2002).

  69. Freieremar SA v the Prosecutor-General of Namibia and Another 1994 (6) Butterworths Constitutional Law Reports 73 (Namibia); National Director of Public Prosecution v Basson (Transvaal Provincial Division) (27 August 1999, SA, unreported); Welch v United Kingdom (1995) 20 European Human Rights Review 24; and United States v Halper 490 US 435 (1989) to name a few. See Van der Walt, op cit, for a full discussion.

  70. National Director of Public Prosecution v Carolus 1999 (2) ***publication*** 607 (Supreme Court of Appeal).

  71. See the suggestions for control over detention in M Cowling, op cit, p 358-59, although we would disagree with the article to the extent that we would never allow detention without trial for interrogation purposes.

CHAPTER 4

  1. Adopted at the 35th Ordinary Session of the Assembly of Heads of State and Government on 14 July 1999 in Algiers, Algeria. As on 6 May 2002 eleven States had deposited instruments of ratification.

  2. Adopted on 28 September 2001 in terms of Chapter VII of the Charter of the United Nations.

  3. The principle known as 'non-refoulment' has crystallized into a rule of customary international law, see also Article 33 of the United Nations Convention Relating to the Status of Refugees (New York, 1951) and the United Nations Protocol Relating to the Status of Refugees (Geneva, 1967).

  4. Article 1(2) of the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (1969).

  5. The Khartoum Declaration of the OAU Ministerial Meeting on Refugees, Returnees and Internally Displaced Persons in Africa, adopted 14 December 1998, Khartoum, Sudan.

  6. Article 1(F) of the UN Convention Relating to the Status of Refugees.

  7. [1996] 2 All ER 865 (House of Lords).

  8. Adopted by the United Nations General Assembly (Res 39148) on 10 December 1984 and entered into force on 26 June 1987.

  9. Article 3(1) of the Torture Convention.

  10. Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC 1; available on the Internet at <http://www.lexum.umontreal.ca/csc-scc/en/html/suresh.en.html>.

  11. The International Convention for the Suppression of Terrorist Bombings (1998) expressly excludes the political offence as an obstacle to extradition.

  12. For example Article 4 of the extradition treaty between Algeria and South Africa signed on October 2001 excludes acts of terrorism as defined in the Algiers Convention from the political offence defence to extradition.

  13. Operative par 3(g).

  14. 2001 (3) South African Law Reports 893 (Constitutional Court).

  15. An 'illegal alien'.

  16. Salim, a co-accused of Mohamed, was extradited to the United States from Germany subject to an assurance that the death penalty would not be imposed on him. The death sentence was not sought against him, unlike Mohamed.

  17. See Report of the Secretary General of the OAU at Expt/Afr/Conv/Extradition/Leg.Asst (I).

CHAPTER 5

  1. M Shaw, Theatre of terror: Responding to the Cape bombings, Crime and Conflict 21, Spring 2000, p 5.

  2. A Botha, The prime suspects? The metamorphosis of Pagad, in H Boshoff, A Botha and M Schönteich, Fear in the city: Urban terrorism in South Africa, ISS Monograph Series 63, September 2001, p 43.

  3. W Hartley, SA 'has to speed up terrorism law', Business Day, 26 October 2001.

  4. NOCOC is a mechanism set up for joint intelligence co-ordination on national and provincial level. It is known as the National Intelligence Co-ordinating Committee at the national level, and as the Provincial Intelligence Co-ordinating Committee at the provincial level.

  5. 'High-density' refers to an operation where an areas is flooded by SAPS/SANDF members executing patrols, roadblocks, and cordon and search operations.

  6. Review of Security Legislation, The Interception and Monitoring Act, discussion paper 78, project 105, South African Law Commission, Pretoria, 1998, p 1-3.

  7. Review of Security Legislation, note 12.

  8. Review of security legislation, terrorism: section 54 of the Internal Security Act no 74 of 1982, South African Law Commission, discussion paper 92, project 105, part 2, Pretoria, July 2000, p 216.

  9. Amnesty International, op cit, p 3.

  10. Amnesty International, op cit, p 3-4.

  11. Section 37(1) Constitution of the Republic of South Africa Act no 108 of 1996.

  12. Ibid, Section 37(2)(b).

  13. See chapter X, Defence Act no 44 of 1957, as amended.

  14. Section 23(2), Judicial Matters Amendment Act no 34 of 1998.

  15. Section 1, Armaments Development and Production Act no 57 of 1968, as amended.

  16. Section 8A(1) Explosives Act no 26 of 1956, as amended by Act no 83 of 1997.

  17. For example, in terms of Government Notice No 1633 of 1 October 1996, Government Gazette no 17490, the minister prohibited the possession of certain prescribed dangerous weapons at any gathering or at any public place. Dangerous weapons in terms of the prohibition included a spear, a knobkierrie(a kind of club), a knife with a blade longer than 10 centimetres, and a baton.

  18. Weapons of mass destruction are defined by the Chemical Weapons Convention, the Bacteriological Weapons Convention, the Nuclear Non-Proliferation Treaty and the Missile Technology Control Regime.