TO : OWEN ROGERS SC

FROM : MICHAEL DONEN SC

RE: PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST

1. Some of the finest human beings of our generation were once labelled as terrorists by their political opponents and anti-terrorist legislation. Many of them were then democratically elected to lead the South African people. Apparently we still do not understand the role and limits of legislation intended to counter terrorism.
2. Such legislation cannot work if it ignores the following realities:

1. terrorism, like war, is an extension of politics i.e. political coercion by violent means;
2. the object of counter-terrorism (as in war) is peace;
3. to achieve peace the legislature must fully appreciate the nature of the "war";
4. international terrorism neither lends itself to legal definition nor the exercise of impartial criminal jurisdiction (e.g. the Statute of the International Criminal Court - "ICC" - does not deal with terrorism);

 

 

5. the engagement of so called "terrorists" through the state’s coercive powers attracts political division and can create opportunity for the terrorist to open up new political space;
6. the law should leave as little room as possible for an alleged terrorist to seize the moral high ground, conscientise observers or exploit political division in society.

1. The criminal prosecution of "terrorism" and the invocation of special powers which go with it are justifiable when the terror threatens our constitutional democracy. While the title of the Act perfectly describes the mischief aimed at, the saving clause in Section 1(4) of the Act creates such uncertainty in the definition of terrorist activity that the mischief which the Act addresses may be exacerbated by its implementation. The introduction of uncertain principles of international law, such as the exercise of self determination and the application of international humanitarian law,¹ undermine legal certainty and may assist terrorist causes.

SOUTH AFRICA’S OBLIGATIONS IN INTERNATIONAL LAW

2. International law regulates the relationship between sovereign states.² Traditionally,³ the only subjects of international law were states, who invariably acted in their own interests and claimed a legitimised monopoly of force.⁴ States "make" international law by concluding treaties (conventions) and through custom.⁵
3. Although treaties must be obeyed,⁶ it is a misconception to believe that because South Africa is a party to the OAU Convention on the Prevention and Combating of Terrorism, 1999 ("the AU Convention") South Africa is also bound to legislate article 3 of the AU Convention into domestic law, and to apply it literally within our courts. This article excludes armed struggle by peoples for their self determination from the definition of terrorist acts. It is not the function of our judiciary to "recognize" a people and their armed struggle for liberation. Recognition of a people⁷ in international relations is a sovereign function performed by the executive branch of government⁸. So too is the recognition that such a people have belligerent status in war, and that their combatants are entitled to the protection of international humanitarian law.⁹ Furthermore, the principle of self determination is not justiciable in a domestic court. At its strongest the principle was perceived as an operative right in the decolonisation process of non self governing territories. The international obligation upon South Africa to help realize self determination is the responsibility of the executive branch of government. The courts can do no more than acknowledge what the executive has recognized the situation to be.¹⁰ Other than by recognition the executive may appropriately give effect to South Africa’s international obligations under the AU Convention through "areas of co-operation" ¹¹and by sharing intelligence.¹²

LEGAL UNCERTAINTY

4. We would avoid incorporation into the Act of any international customary law (of which the right to self determination and humanitarian law form a part), because this law is uncertain and malleable. It has properly been described as the vanishing point of jurisprudence; with the vanishing point of international law being the law of war.¹³
5. State practice recognised as law by states is a source of international customary law ("ICL"). ICL is part of South African law, unless it is inconsistent with the Constitution. There is accordingly no need to legislate for the incorporation of any part of ICL (such as self determination and humanitarian law) into our domestic law. However, there are material differences in state practice in relation to the nature and scope of the right of self determination as well as to the applicability of international humanitarian law to certain combatants. In expressly legislating for a resort to violent coercion on the grounds of self-determination and the provisions of international humanitarian law, the legislature has given license to accused terrorists (and those under investigation) to perpetrate the very mischief the legislation aims to eradicate. That is, to propagate their causes by exploiting these differences and uncertainties in our courts under a legitimate claim of a legal right to armed struggle.
6. The international law of armed conflict has two branches viz. the jus ad bellum which governs your going to war in the first place, and the jus in bello governing what you can do when you get there. A right of self determination may fall into the first branch. International humanitarian law¹⁴ falls into the second. The rights and obligations arising from each branch are discrete. They are not treated discretely in the Act.
7. The assertion of self determination, as it is expressed in the preamble to the Act and the saving clause 1(4), conflates the two branches of the law of war and resurrects the ancient Christian justification of the just war. This was substantially founded by St Augustine, was resuscitated by Marxism and developed by Lenin in relation to imperialist and colonialist conflicts of the 20^th Century.¹⁵ It is presently conspicuous in the Middle East where it is formulated on the basis that if the object of a war is just, the achievement of that objective should not be limited by reducing human suffering.¹⁶ Self-evidently the object of the Act should be to reduce human suffering and not to encourage it. The Act fails in this regard.

 

THE RIGHT OF SELF DETERMINATION

8. The precise ramification of self determination in international law had not yet been determined at the time of the Declaration On The Granting Of Independence To Colonial Countries and Peoples.¹⁷ The UN declared that the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, which is contrary to the Charter of the UN and an impediment to the promotion of world peace and co-operation. It recognised that "all peoples have the right to self determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." Though the resolution contemplated three possibilities for non self governing territories, namely emergence as a sovereign independent state, free association with an independent state, or integration with an independent state through the free and voluntary choice of the peoples of the territory concerned, primarily the principle drove the political decolonization process of existing territories.¹⁸ What criteria a court should apply in defining a "people" who do not represent the population of an institutional state¹⁹ remains unclear.²⁰ Such a principle is hardly amenable to the order of a domestic court.
9. Whereas previously most states gained their independence through the use of force, the assertion of the self determination principle through the UNGA resulted in a proliferation of nation states, all of whom became bound to respect each others’ sovereignty, personality and equality,²¹ to refrain from intervening in each other’s domestic jurisdiction,²² and particularly to refrain from using force against the territorial integrity or political independence of any other state. This status quo is often inimical and unfair to minorities (e.g. the Kurds in Iran, Iraq and Turkey²³) and to majorities in undemocratic states.
10. Not surprisingly claims of self-determination have often been used to motivate secessions e.g. Biafra from Nigeria and East Timor from Indonesia. The principle of self determination also intrudes into the major reality of international politics which exists in this age of globalisation: people share beliefs, habits and structures which mould communities some of whom are prepared to kill and die for these fundamentals of life.²⁴ Al Qaeda purports to represent one such community. Arguably its charter falls within the parameters of a struggle for self-determination as contemplated by UNGA Resolution 1514 as well as the ICJ advisory opinion on the Western Sahara.
11. In his "Declaration of the World Islamic Front for Jihad against the Jews and the Crusaders", in 1998, Mr Osama Bin Laden stated that "to kill Americans and their allies, both civil and military, is the individual duty of every Muslim who is able, until the Aqsa Mosque (in Jerusalem) and the Haram Mosque (in Mecca) are freed from their grip, and until their armies, shattered and broken winged, depart from all the lands of Islam".²⁵ The introduction of a self-determination proviso into the Act invites such a claim of right into our courts with an arguable proposition which is now derived from South African law. If that is the intention of the legislature then so be it. However, a court of law is not the proper forum to resolve such a claim.
12. Section 1(4) of the Act is materially sourced in Article 7 of the UNGA Definition of Aggression.²⁶ This resolution was adopted during the heat of the cold war. The saving clause in Article 7 provided that the use of force by non state entities (and any states supporting them) against established states was lawful in furtherance of the inalienable right of self determination. So called "Communist states" supported such claims, but tried to protect themselves by asserting that only struggles against "colonial, racist" or "imperialist" oppressors were saved by Article 7.²⁷
13. In contrast to the politicised and uncertain principle of international law above our own Constitution is specific about the ambit of self determination. Section 235 acknowledges the right of the South African people as a whole²⁸ to self determination, as manifested in the Constitution. "Within the framework of this right", the Constitution recognizes "the notion of the right of self-determination of a community sharing a common cultural and language heritage within a territorial entity in the Republic or in any other way, determined by national legislation.". Contrary to the provisions of Section 1(4) of the Act no liberty is vested in lesser communities²⁹ by the Constitution to determine their political status by resorting to armed struggle as authorised by the GA resolutions referred to above. Furthermore in international law the principle of self determination may involve the right to autonomy of people united by political, philosophical, ideological, racial, ethnic and religious motives,³⁰ a claim which Section 1(5) of the Act provides "shall not be considered for any reason… to be a justifiable defence". The lastmentioned subsection negates both the principle of self determination and the use of force in asserting this "right". Saving the right in Section 1(4) therefore serves no purpose.

INTERNATIONAL HUMANITARIAN LAW

14. The 1977 Geneva Protocol 1 sought to codify the jus in bello and make it applicable to armed conflict between non state entities and established states, as contemplated and legitimised by the UNGA Declaration of Principles and Article 7 of the Definition of Aggression. In terms of Article 1(4) of the Protocol (and in language almost identical to that employed in Section 1(4) of the Act), the Protocol was rendered applicable to peoples fighting against colonial domination and alien occupation in the exercise of their right of self-determination. Should charges of terrorism ever arise from the Act, Section 1(4) will in all likelihood evoke the response of Mxolisi Petane³¹ who was charged with terrorism, under Section 54(1) of the Internal Security Act 74 of 1982, in the Cape High Court: viz. that the accused is entitled to be treated as a prisoner of war and the court has no jurisdiction to try him or her. ³²
15. While the Act justifies resort to armed conflict on grounds recognized by the Protocol, it does not express the object of the Protocol viz. to impose specific duties on combatants not to attack the civilian population or individual civilians, and not to make indiscriminate attacks affecting the civilian population, upon pain of prosecution as a war criminal.

 

CONCLUSION

16. The supremacy of our Constitution trumps South Africa’s apparent treaty obligations to the African Union. This is not unprecedented in our democracy. The Promotion of National Unity and Reconciliation Act, No 34 1995, which was generated by the Interim Constitution, expressly provided for the granting of amnesty for torture, despite the obligation on South Africa in international law at the time to treat the provisions of the Convention against Torture (1984) in good faith.³³ The amnesty committee enjoyed no international authority whatsoever to indemnify this international crime against humanity. However, the creation of peace in our land justified our legislation then as it does now.
17. In all the circumstances it would have been better to exclude the above references to international customary law from the Act and to have subsumed them under the statute of the International Criminal Court. The aficionado of show trials and the "terrorist" will appreciate the operation of Section1(4) of the Act. Victims of terrorism and the judiciary will take little comfort from this legislation.

CHAMBERS

17 DECEMBER 2003