Military Legal Services Division of the South African National Defence Force

MEMORANDUM

BRIEFING TO THE PORTFOLIO COMMITTEE ON SAFETY AND SECURITY ON 25 JUNE 2003: PUBLIC HEARINGS ON ANTI-TERRORISM BILL [B12-2003]

1. Mr. Chairperson, honorable members,

2. My name is Johan Kruger and I am representing the Military Legal Services Division of the South African National Defence Force. I am a legal adviser on matters regarding Public International Law and Operational Law at the Military Legal Services, Department of Defence.

3. Firstly, Mr. Chair our appreciation for your kind invitation to attend and to give comment on this most important issue.

4. Before I commence, it is most important to emphasize the fact that this submission forms part of the Military Legal Services working document on Terrorism for the purpose of Inter-Departmental discussion. For that specific purpose this submission is still under discussion within the Department of Defence and is it the perspective and comment of the Military Legal Services as signed by the Chief of Military Legal Services. This submission is by no means the official policy or comments of neither the Minister of Defence nor the Department of Defence.

5. Mr. Chair, I will try to refrain from discussing a theoretical background concerning Terrorism and will rather focus on a short but practical formulation and implementation of a sustainable and acceptable definition of a Terrorist Act. As the Department of Defence is part of a comprehensive Inter-Departmental Working Group on Terrorism, our comments regarding other aspects of the Bill are forwarded to this Committee via that forum.

6. As a background to this submission, the Military Legal Services emphasizes the importance of fulfilling the Republic’s international obligations concerning the prevention and countering acts of Terrorism. Terrorism is a global threat to the Rule of Law, democracy and especially certain fundamental rights amongst other the right to dignity, the right to life and the right to liberty and personal safety. Not only does Terrorism threatens the Rule of Law, but does it also undermines development and places it strains on stability, the economy and infrastructure of a state. Terrorism is a serious threat to national and international peace and stability and it makes it virtually impossible for a state to protect those people and property within its territorial sovereignty.

7. Keeping these international obligations in mind, the Military Legal Services acknowledges the necessity for specific and comprehensive Counter-Terrorism legislation in line with our fundamental Constitutional values. We believe that this said emerging legislation should in principle and as far as practical possible, be embodied in a single peace of legislation such as the Bill under discussion.

8. The Military Legal Services expresses the need to clearly define an act of Terrorism, as one cannot regulate something if one cannot identify and comprehensively define that matter to be regulated. Following, the Military Legal Services would like to extend some comment on the definition of Terrorism Act:

 

Refer to the following Comment on the Anti-Terrorism Bill as per letter to Assistant Commissioner P. J. Jacobs and also forwarded to the Portfolio Committee on Safety and Security dated 29 April 2003:

COMMENT PERTAINING TO ANTI-TERRORISM BILL, 2002

1. Find herewith comment by the Military Legal Service Division pertaining to the Anti-Terrorism Bill, 2002, as requested at the Inter-Departmental Counter-Terrorism Work Group meeting on 22 April 2003 held at the Department of Foreign Affairs.

2. As a member of the above Working Group, this Department takes note of the comments of the Working Group on the Anti-Terrorism Bill and concurs with the content as discussed.

3. The Military Legal Service Division would in addition, however, like to extend some comment on the definition of "terrorist act".

  1. The introduced definition of "terrorist act" currently reads as follows:

"Definitions

      1. In this Act, unless the context indicates otherwise –

"terrorist act" means an unlawful act, committed in or outside the Republic which is –

      1. A convention offence; or

(b) likely to intimidate the public or a segment of the public;"

 

    1. Ad Clause 1 "terrorist act" (a): Paragraph 2.2 as per the Comments of the Inter-departmental Counter-Terrorism Committee on the Anti-Terrorism Bill is noted and supported.

b. Ad Clause 1 "terrorist act" (a): If the various offences as created by the conventions are incorporated per Schedule, the following is noted:
      1. The incorporation must be verbatim.

9. Ad para 4(b)(i): The so called Convention Offences must be incorporated verbatim but by means of a schedule to the Act, as to allow for the uncomplicated incorporation of new and supplemented conventions or the revision of amended conventions.

  1. It is submitted that the Articles of the Convention on the Marking of Plastic Explosives for the Purpose of Identification Signed at Montreal on 1 March 1991, should not be incorporated as this convention does not create any offence, but only places an obligation upon Party States to criminalise the acts as mentioned in the Convention by means of municipal legislation. For the purpose of incorporating an offence related to this Convention, there must be reference to the Explosives Act as it stands. As the use of explosives and other lethal devices are criminalised by the International Convention on the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997, it is suggested, however, that any offence related to the marking of plastic explosives, unless committed with the intent (as will be discussed in 4(c) below) should be governed by the Explosives Act, 1956, and not by the proposed Anti-Terrorism legislation.

  2. Article 1(3)(a) of the Organisation of African Unity Convention on the Prevention and Combating of Terrorism, adopted by the Organisation of African Unity in Algiers on 14 July 1999, reads as follows:

 

"3. "Terrorist act" means:

(a) 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 or group 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:

(i) 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

(ii) disrupt any public service, the delivery of any essential service to the public or to create a public emergency; or

      1. create general insurrection in a State.

(b) any promotion, sponsoring, contribution to, command, aid, incitement, encouragement, attempt, threat, conspiracy, organizing, or procurement of any person, with the intent to commit any act referred to in paragraph (a) (i) to(iii)."

      1. It is recommended that the reference to "terrorist act" as contemplated in Article 1(3) of the Organisation of African Unity Convention on the Prevention and Combating of Terrorism, adopted by the Organisation of African Unity in Algiers on 14 July 1999, should be omitted from the Anti-Terrorism Bill. This article does not create a specific crime but constitutes a general definition of a terrorist act. Furthermore this definition is specifically referring to a "terrorist act" as "any act which is a violation of the criminal laws of a State Party" - the specific act must thus first be criminalised by the State Party. By referring in the Bill to this Convention, a "terrorist act" is effectively defined as "any act which is a violation of the criminal laws of a State Party". There is thus still no criminalised act created. This definition is extremely wide especially with reference to Article 1(3)(a)(ii) and 1(3)(a)(iii) and defies the purpose of narrowing down the application of the proposed definition in the Bill. This definition will effectively override any restricted interpretation of the definition in the Bill.

c. Ad Clause 1 "terrorist act" (b): It is submitted that this sub-clause, as the alternate to sub-clause (a), is extremely wide and of an extreme subjective nature. The likeliness to intimidate the public or a part of the public without combining it with certain intent is ultimately a subjective test. The following suggestions are recommended:

      1. There must be clear intent to act in a certain manner – a terrorist act can never be committed negligently.

      2. Intimidation of the public or a segment of the public by whatever means – violence, threat of violence or destruction of property – is usually only a means to an end. The purpose of public intimidation is usually aimed at compelling a government to act or to abstain from acting in a certain manner or in an effort to alter public opinion.

        3.  

      3. In order to differentiate between an act of terrorism as a genus crime and another crime, the intent must be qualified by the intention/purpose of the act. It is important to reiterate the initial reference to the unjustifiable nature of an act of terrorism, regardless of what consideration is invoked to justify the act as per the preamble of the Bill. This will ensure legal certainty (especially concerning extradition) and will ensure clear compliance with the Conventions.

      4. It is suggested that Clause 1"terrorist act" (b) should be amended to read as follows:

"an intentional act of –
      1. Violence or the threat thereof,
      2. the destruction of property or the threat thereof, or
      3. intimidation,

committed against –

      1. a government,
      2. the public, a segment of the public or any individual,

for the purpose of compelling a government, the public, a segment of the public or any individual to –
      1. act or behave in a certain manner, or
      2. to abstain from acting or behaving in a certain manner,

in order to further any political, philosophical, ideological, racial, ethnic or religious or other cause."

d. Alternatively, the difference between political crimes and terrorism can easily be overcome if a universally accepted measurement forms the basis of the definition of terrorism. That universally accepted measurement is not motive, but human rights. The question of when an act is that of terrorism and when it is a political crime can be answered by determining whether or not human rights were infringed upon by that particular act. When for instance the right to life is being violated by the detonation of an explosive device, that act cannot be justified by any particular consideration and should be defined as an act of terrorism. Political crimes on the other hand will be a crime of political motive, but where that act has no direct causal connection to the infringement of human rights. If terrorism is defined by means of human rights, it is submitted that a working definition should read as follows:

"An act of terrorism is any intentional act that –

a. is aimed to fulfil a political, philosophical, ethnical, religious, racial or social goal by –

i. directly violating or threatening to violate the right to dignity including the right to physical and psychological integrity, the right to life, or the right to freedom of any person or persons; or

ii. by attempting to violate any of the mentioned rights; or

iii. directly causes, or threatens to cause damage to property; or

iv. by attempting to cause damage to property, and

b. where the purpose of this intentional action must be to coerce or intimidate any government, organisation, individual person, the general public or a section thereof in order to –

i. change a particular policy, or to have them fulfil a certain action, or

ii. deter any government or any of the above mentioned persons or groups of persons from fulfilling a certain action."

5. Although the definition as per 4(d) has the potential for further development, the definition as per 4(c)(iv) will is primarily supported.

6. It is trusted that the input and comment will be of assistance to you.

 

10. Ad para 4(c)(iii): The purpose or intention has to be clear. When one takes documents from its rightful owner with the intent to deprive the owner permanently of his or her documents – it clearly constitutes theft. If one takes the same documents with the intent to coerce the owner into doing something, usually worth something in monetary value to the taker, it will be blackmail. If one takes the same documents with the intent to forward the information to a foreign government, it might be an offence by virtue of the Protection of Information Act or even high treason. It is clear that for the classification of Terrorism as a genus or specific crime, intent and purpose must form part of the definition.

11. Ad para 4(d): It is important to differentiate between Terrorism, Political crimes and wars of national liberation: Political crimes can be defined as criminal acts in terms of a state’s municipal or statutory law and does not necessarily infringe upon the rights of the individual. The most common political crimes are sedition, espionage and high treason.

12. It is in fact not necessary to deal with "freedom fighters" or "wars of national liberation" in this proposed definition or proposed legislation as the International Law of Armed Conflict and International Humanitarian Law recognize both of the aforementioned. "Wars of national liberation" are being recognized as legitimate armed conflict as long as there are being abided by the Laws of Armed Conflict.

13. I am of the opinion that it may be safely contended that, in addition, at least Transnational, State-sponsored or State-condoned Terrorism amounts to an International Crime, and is already contemplated and prohibited by International Customary and Convention Law as a distinct category of such crimes.

14. If one take in consideration the infringement of human rights for a particular purpose, that systematic and wide spread acts of especially transnational organizations can only be construed as a Crime against Humanity. Terrorism should thus be defined as and should be justiciable as a Crime against Humanity. Terrorist Acts has been defined as a Crime Against Humanity by a prominent French jurist and former Minister of Justice, Robert Badinter, the UN Secretary-General, Kofi Anan as well as the UN High Commissioner for Human Rights, Mary Robinson. Distinguished international lawyers such as Antonio Cassese, Alain Pellet and British lawyer G Robertson, Q.C., have taken the same view.

15. Mr. Chair, I am of the opinion that Terrorism can be defined not in terms of ethnical groupings, religious believes or fundamentalism, but rather in terms of those human rights principles that also forms the core values of our own Constitution. Those values and rights that will make Terrorism a crime against every human being regardless of the motive for that crime.

16. Finally, Mr. Chair, I strongly believe that South Africa is in the position to reset the international mindset and to be in the front line when it comes to changing the global perceptions that Terrorism can only be crystallized as a crime in terms of the motive of the offender.

17. Mr. Chair and honorable members, again our sincere appreciation for the opportunity to gave comment today. Thank you.