The word "terrorism" originated in the French Revolution, when the government instituted what became known as the "Reign of Terror", to execute political opponents, seize their property, and terrorize the population into submission. As in our modern day global war against terrorism, this was obviously done, back in 1789, for the better good of all, namely in the name of the ideals of the French revolution: Liberté, Égalité et Fraternité : Liberty, Equal Treatment, and Universality.

The Oxford dictionary shows that the modern grammatical definition of terror is simply "extreme fear". The difficulty is to distinguish normal punishable acts from "terrorist" acts. This can be shown in three simple examples. Let us imagine for a moment one of the more or less 20 hijacking incidents that according to statistics occur daily in our cities, here in South Africa. In about one third of the cases, the hijacker waits for a convenient moment to shoot the driver dead. The purpose is to obtain the vehicle without disturbance by alarm or tracking devices, and without having to damage any locks, wiring, or the paintwork. In this process, the hijacker inflicts extreme fear and anguish upon his victim as well most other motorists and to some degree amongst the public at large. Yet, neither the public, nor the courts, would consider this criminal a terrorist.

Now let us turn to the case that is currently being tried in the USA of a former army reservist by the name of John Allen Muhammad. Together with his young accomplice Lee Boyd Malvo, he engaged in some real life arcade games during which John and Lee would turn into snipers, targeting and shooting dead victims at random. There were no apparent motives of greed, vengeance or politics. John & Lee certainly installed the most extreme form of fear imaginable thought the whole state of Maryland in the US, until they were finally caught. Yet, like our car hijackers in South Africa, these particular criminals are not considered terrorist and currently being prosecuted for murder and other "normal" crimes.

Finally, the example of the imaginary political assassin in Iraq who decides to target American soldiers on duty in Iraq, whenever he spots one who is less attentive than he should be. This kind of killer takes aim from a safe distance and hiding place and fires a lethal shot. Quite obviously, no fear or terror would be inflicted upon the unsuspecting victim. As more American soldiers are killed in this manner, so will some degree of fear and anguish grow amongst those soldiers. The families of the victims will feel sorrow, but not necessarily fear, as they do not belong to the target group. Ordinary Iraqis will hardly be perturbed, as they are also not considered targets, and because few would perceive the loss of an American soldier as a particular loss. And yet, there is no doubt that anyone suspected of being this particular killer, if found anywhere in the World, should be prosecuted as a terrorist, under particularly severe procedural powers, and regardless of the due process and other fundamental rights of the suspect and or anyone ever having known of him, or having been in contact with such a suspect.

What does this mean? Is it that contrary to many views, the actual spreading of fear is not the distinguishing element of terrorist crimes? Is it that only acts directed against the authority of the state, or the King or ruler, are terrorist acts in the modern sense? In that case, terrorism crimes would be simply a modern form of the age old categories of "treason", "sedition", "rebellion" and the like.

Algerian law seems to confirm this view. Algeria is a country which in its December 2001 compliance report to the recently established Counter Terrorism Committee of the UN Security Council (also know by the name of his chairman as the Greenstock Committee) states that it considers itself a "victim of terrorism", "having long suffered the ravages of terrorism". Algeria confirms that its legislation is exactly in line with what the Greenstock Committee would like to see implemented in world wide law reforms. Article 1 of Decree No. 93-03 to amend the Algerian Penal Code, inserted already 1993 the following definition of a "terrorist act:

The question of how we define our state security penal norms, including any offences labelled as "terrorist acts" is crucial. If the combating of terrorism has to do with punishing in a particular way those who cause public panic, than the purpose of protecting the public and every person being part of that public, is the central preoccupation of such legislation. If however, terrorism is understood as something which threatens the state and its authority, and what authoritarian states will forever and ever refer to as "state security", then we are dealing with a different interest and a different angle. In my opinion it is of vital importance that we do not blur the distinction between the right of the individual to be safe and secure, meaning secure from violent acts and secure from violations of his rights, on the one hand, and the perceived needs of people in power to enforce "state security", on the other. In practice and in the reality of the history of the nations of this world, the pursuit of "state security" did in most instances turn into what I referred to as "state terrorism", when revisiting the methods of the French Revolution.

The destruction of the twin towers in New York City on September 11^th, 2001 has brought a new dimension to the debate. Within less than three weeks, and still under the impression of the horrific shock of the September 11^th events, the United Nations Security Council passed Resolution 1373, ruling that it considered "international terrorism" a "threat to international peace and security". This distinction is important, as the jurisdiction of the United Nations Organisation is limited in principle to the preservation of international peace and security amongst nations, or, in the terminology of its article 2 paragraph 4, to the enforcement of the universal prohibition of the "threat or use of force, against the territorial integrity or political independence of any state."

However, when characterizing the events of 11 September 2001, the Security Council avoided speaking of an ‘armed attack’, as required by Article 51 of the Charter, using instead the notion of ‘terrorist attack’, without expressly linking this notion to Article 51 of the Charter, which is mentioned in a separate paragraph.

Resolution 1373 in deliberately vague in respect of whether the "attack" of September 11, 2001 was of a nature that would qualify it as an attack under article 51 of the Charter. The Resolution also avoids of an identification of the entity responsible for the attack. This did not, however, stop the Security Council from using its powers under chapter VII of the Charter to impose a mandatory duty on all member states, to adopt mainly legislative measures, as well as to submit to a particular compliance reporting routine under the newly established and already mentioned Greenstock Committee.

In my view, the duties imposed on member states in Resolution 1373 are not mandatory, as the prerequisites for the imposition of such mandatory measures, namely the existence of an attack within the meaning of the United Nations Charter, by a State, did not apply. Typically, this is an issue that should be brought before the International Court of Justice in The Hague. At some stage this may well be a step worth considering, especially if the workings of the Greenstock Committee are found to be going too far, for instance if they seriously attempt to impose excessive state security models, such as the US "Patriot Act" (official title: Uniting and Strengthening America Act by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act of 2001).

The Greenstock Committee is mainly a procedural measure to promote the further adoption and implementation of the relatively large number of 12 international and 6 regional legal instruments for the combating of terrorists act has been in existence long before the September 11^th 2001 incident.

SADC COMPLIANCE WITH RESOLUTION 1377

As the information supplied by the Greenstock Committee on the Internet reveals, 11 of the 14 SADC member states, but not the SADC as such, have complied thus far, with their reporting duty under Resolution 1377. However, as the reports show, none with the exception of Mauritius and South Africa have considered it necessary to enact any specific new anti-terrorism legislation.

The reasoning put forward by Southern African governments is consistently the same, namely that existing criminal law and criminal procedure cover the specific conduct referred to as "terrorist" by the Greenstock Committee.

The two exceptions in the SADC group of countries, as I have mentioned, are Mauritius and South Africa.

Mauritius, in a supplementary submission of 17 June 2002 reported:

The enactment of the Prevention of Terrorism Act 2002 in Mauritius was essentially a reaction to severe pressure that was threatening the country’s economy, especially as Mauritius had been placed by the IMF on a list of countries allegedly facilitating money laundering. The Mauritius Prevention of Terrorism Act 2002 attempted to satisfy to the letter the "guidance notes" and "briefing notes" and finally the "Directory of Counter-Terrorism Information and Sources of Assistance" issued by the Greenstock Committee, but actually went well beyond what can be considered reasonable. The Act was controversial to the point that four presidents changed office in one month, in view of their refusal to sign the Bill into law. Even so, it is important to note that the Mauritius ATA does contain a direct and own definition of what constitutes a terrorist act, in its section 3:

The current South African anti-terrorism Bill is the only attempt anywhere in the world that I am aware of attempting to introduce terrorist acts as a new category of criminal acts, without attempting to define the concept of "terrorist act".

The current Bill simply states that a terrorist act is "an unlawful act, committed in
or outside the Republic", which would, in fact, be no definition at all. Only when one reads on to the next paragraph, which attempts to define "terrorist organization", does it become clear that two text lines that belong to the definition of terrorist act, have been printed under the definition of "terrorist organization". This is so incredible and unbelievable that it needs to be graphically demonstrated:

Thus, the actual definition is "an unlawful act, wherever committed, which is a convention offence", or "which is likely to intimidate the public or a segment of the public". The so called "convention offences" are offences referred to in a Schedule 1 of the Bill which simply refers to 10 international conventions and the acts referred therein, without even bothering to indicate generally accessible and official sources of publication for those conventions.

There is no officially published or gazetted text in South Africa, and currently not even the Department of Foreign Affairs is able to give an unequivocal reference as to where their text can be consulted. Besides this technical problem, there is another minor issue that we teach our international law students very early in the course, namely that international law instruments must be applied and interpreted in accordance with different rules, taking into consideration their origins, motives and history, as well as the several official languages in which they are normally drafted. A national criminal offence cannot be defined by reference to some mostly inaccessible and possibly contradicting foreign or international legal provisions that are beyond the control of the South African legislature, because they are contained in international treaties.

Besides this unconstitutional creation of statutory crimes by way of a blanket reference to non- South African provisions contained in treaties, and not even statutes there is another general and maybe less technical problem. The definition of "terrorist act" turns around the question whether any unlawful activity is "likely to intimidate the public or a segment of the public." By using the words "likely", and "intimidate", and "segment" the drafters have sanctioned subjectivity and speculation as the foundational basis for prosecuting the offence of terrorism, making it an exercise in arbitrariness to distinguish a terrorist act from unlawful but common activities of a whole range of individuals and organizations. Any kind of protest that on some formal grounds can be considered "unlawful" could be held to constitute a "terrorist act", if it is found to be "likely" that it might "intimidate" even only a "segment" of the public.

The presently proposed definition of "terrorist act" is all the more frustrating, if one considers that the careful and balanced considerations and conclusion reached in Canada during the extensive research and debates on the Canadian Anti-Terrorism Act, have simply been ignored by the South African Law Commission in their Report and Recommendations on the Review of Security Legislation of August 2002 even though this report managed to produce over 1000 pages of badly edited and often misunderstood compilations of foreign legislation from an arbitrary selection of countries, inter alia Israel, Lebanon, and Turkey. Incidentally, and as the report itself acknowledge, it was compiled "in house" and without any independent quality control procedure by a junior researcher of the SA Law Commission without any specialization or post graduate qualifications in comparative law.

This is all the more serious, as the draft South African legislation attaches some of the most severe encroachments upon due process and human rights guarantees to the attribute of "terrorist act". Special bail procedures apply that in effect bring back detention without trial through the backdoor, which is a shamefully dishonest and devious kind of legislative drafting, especially because a lot of media hype was created about the alleged dropping of detention without trial in the new Bill. Once a person is suspected of having committed a "terrorist act", the police are also given special powers of preventative search and seizure and interrogation. These and many other concerns have been outlined in the submission made by the recent Freedom of Expression Institute, and there is nothing that would need to be added to their comprehensive report and study.

The recollections of South Africa’s dreaded state security laws, which included all kinds of "anti-terrorism" provisions, are still fresh in this country. These should give the South African members of parliament the inspiration and the courage to resist diplomatic or government pressures. South Africa must insist that there should be respect for the immense and so very recent suffering in this country, and indeed by the entire region, under the mantle of the various anti-terrorist wars. The passive resistance from all but 2 member states of the SADC is an indicator that the region is more than reluctant to introducing special anti-terrorism legislation that could easily be abused and damage the still fragile and delicate standards of human rights and set the wrong signals for the rule of law in Southern Africa.

The truth as I see it is that there is no regional trend to adopt draconian anti-terrorist laws, nor any global trend to do so. The alleged international trend that the motivation of the bill refers to is in reality limited to a handful of highly industrialized nations only.

I find it impossible to see how further tightened state security laws could make up for a chronic deficiency in police intelligence and police detective and police forensics capacities. It used to be a terrible South African tradition to try and make up for a lack of police intelligence with increased police brutality. The lack of crime combating capacity is an educational and developmental issue that cannot be resolved with granting excessive and unfettered police powers.

Southern Africa, and especially South Africa, have their own and unique legal traditions, legal environments, and security perceptions. It is within these parameters that South Africa has no difficulty fulfilling its international legal obligations, where they truly exist, without having to pass the ill fated and in fact humiliating Anti Terrorism Bill that has now again been tabled in Parliament.

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