EXPLANATORY MEMORANDUM

The Speaker,

ACCESSION TO THE INTERNATIONAL CONVENTION ON THE INTERNATIONAL CONVENTION ON PREVENTION AND PUNISHMENT OF CRIMES AGAINST INTERNATIONALLY PROTECTED PERSONS, INCLUDING DIPLOMATIC AGENTS AND THE INTERNATIONAL CONVENTION AGAINST THE TAKING OF HOSTAGES

HISTORY

On 28 September 2001, after the unfortunate incidences at the World Trade Centre, the Pentagon and in Pittsburgh, the Security Council of the United Nations, adopted a Chapter VII Resolution, Resolution 1373/2001 binding on all Member States. This Resolution is significant for a number of reasons, including the fact that it reproduced some of the provisions of the International Convention for the Suppression of the Financing of Terrorism, thereby creating the same legal obligations separately from the Convention. It also created an obligation for all member States to ratify all the Anti-Terrorism Conventions of the United Nations.

The Council also established a Committee of the Council to monitor the Resolution’s implementation and called on all States to report on actions they had taken to that end not later than 90 (ninety) days from the 28 September 2001.

The following obligations were placed on member States in terms of UN Resolution 1373/2001:

C the prevention and suppression of financing of terrorism;
C the criminalizing of the willful provision of funds for such acts;
C taking the necessary steps to prevent the commission of terrorist acts;
C denying a safe haven to those who finance, plan, support, commit terrorist acts and provide safe havens as well;

C bringing to justice those who have participated in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts (the seriousness of such acts must be duly reflected in the sentences);
C affording one another the greatest measure of assistance in criminal investigations and proceedings relating to the financing or support of terrorist acts;
C preventing movement of terrorists or their groups by effective border control;
C intensifying and accelerating the exchange of information regarding terrorist actions or movements, forged or falsified documents, trafficking in arms and sensitive material, use of communication and technologies by terrorist groups and the threat posed by the possession of weapons of mass destruction;
C before granting refugee status, to take appropriate measures to ensure that the asylum seekers had not planned, facilitated or participated in terrorist acts;
C ensuring that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts;
C that claims of political motivation shall not be recognized as grounds for refusing requests for the extradition of alleged terrorists.

South Africa has supported, also in the Non-Aligned Movement, the combating of terrorism.

At an interdepartmental meeting comprising of representatives from the
National Intelligence Agency, South African Secret Service, South African Police Service, Department of Justice and the Department of Foreign Affairs on international measures to combat terrorism, it was decided that the South African Police Service will coordinate comments and proposals from all relevant departments on South Africa’s proposed accession to the Conventions. The Conventions was submitted to all relevant departments for their comments and proposals pertaining to South Africa’s proposed accession of the Conventions.

The United Nations has adopted 12 (twelve) instruments in this regard and is negotiating a further instrument. South Africa participates actively in the elaboration of individual conventions under the auspices of the United Nations or/and the African Union to ensure international cooperation in prosecutions or extraditions of offenders, thus ensuring that there is no safe-haven for terrorists. In order to give practical effect to South Africa’s commitment to combating terrorism it is necessary for South Africa to become part to all these international conventions on terrorism and to give effect to the obligations contained therein in its domestic law.

2 OBJECTIVES

2.1 THE INTERNATIONAL CONVENTION ON THE INTERNATIONAL CONVENTION ON PREVENTION AND PUNISHMENT OF CRIMES AGAINST INTERNATIONALLY PROTECTED PERSONS, INCLUDING DIPLOMATIC AGENTS

2.1.1 The main aim of the Convention is the prevention of such terrorist acts as the murder, kidnaping or other attack upon the person or liberty of internationally protected persons, the violent attack upon official premises, private accommodation or means of transport of internationally protected persons and any threat, attempt or accomplice to such attacks and the prosecution and punishment of the perpetrators.

2.1.2 Offences within the scope of the Convention are defined in Article 2.

2.1.3 The "prosecute or extradite" principle, as is found in all the sectoral Conventions on Terrorism is also followed in this Convention (see Article 3, 6 and 7).

2.1.4 In Article 4 State Parties have the obligation to take all practical measures to prevent preparations for the commission of these offences within and outside their territories. Information must be exchanged and evidence as requested must be provided.

2.1.5 Persons committing the mentioned crimes shall be guaranteed fair treatment at all stages of the proceedings( Article 9)

2.2 THE INTERNATIONAL CONVENTION AGAINST THE TAKING OF HOSTAGES

The International Convention against the Taking of Hostages (1979) criminalizes the seizure, detaining and threatening to kill, injure or continue to detain another person (hostage) in order to compel a third party (State), an international intergovernmental organization, a natural or juridical person, or group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of hostages. Attempts to do this as well as participation as an accomplice to commit or attempt hostage taking, is also criminalized.

2.2.1 State Parties is required to make the abovementioned offences punishable by appropriate penalties which take into account the grave nature of the offences. (Article 2)

2.2.2 The State Party in the territory of which the hostage is held must take all measures appropriate to ease the situation of the hostage, to secure the hostage’s release and to facilitate his departure. Any object obtained by the offender as a result of the hostage-taking, must then be returned by the State Party to the applicable person or authorities.

2.2.3 State Parties must co-operate in the prevention of the offences by taking all practicable measure to prevent preparations in their territories, including the prohibition of illegal activities of persons, groups and organizations that encourage, instigate, organize or engage in the perpetration of acts of taking hostages, and exchanging information.

2.2.4 As with all other Terrorist -Conventions, the "prosecute or extradite" requirement is found.(Article 8)

2.2.5 Of great importance is Article 5.3 in which State Parties’ criminal jurisdiction exercised in accordance with internal law, are not excluded by the Convention.

2.2.6 Assistance between State Parties is required in connection with criminal proceedings including the supply of all evidence at their disposal necessary for the proceedings.(Article 11)


IMPLICATIONS

Should the Conventions be acceded to by Parliament, the Republic of South
Africa will have regional as well as international obligations to fulfil concerning terrorist
acts. The legislation concerning "terrorism" are addressed in the Anti-Terrorism Bill
which is in the process of being discussed in the Portfolio Committee for Safety and Security.

4. LEGAL OPINIONS

The State Law Advisers (their opinion is attached hereto) as Annexure "A", had no reservations with regard the accession to the Conventions. South Africa will not be able, although it is willing, to implement the Conventions.

The Chief State Law Adviser’s (International Law) opinion is attached as Annexure "B".

5. SECTION 231(4) OF THE CONSTITUTION

The Conventions contain no self-executing provisions.

6. FINANCIAL IMPLICATIONS

In respect of most Departments the enforcement and implementation of the Conventions will be done in terms of normal line-function responsibilities, for which Departments have budgeted. The additional monitoring, intelligence and policing functions required, cannot be quantified and expressed in terms of budgetary implications.