For attention: Adv. K. Strydom

1. Adv. Strydom’s email of 20 January 2003 refers.
2. The Cape Bar Council has submitted a memorandum to the Minister of Safety and Security raising certain objections in relation to clause 1(4) of the Bill. Clause 1(4) of the Bill in essence provides that acts for national liberation and self-determination, if they are done in conformity with international law including international humanitarian law, will not be considered to be terrorist acts. The Cape Bar Council argues that if this clause is included in the final Act then it will encourage terrorists to perpetrate terrorist acts . The State Law Advisers (IL) have been invited to comment on the international law aspects of the Cape Bar Council’s argument.

4. The international obligation to legislate against international terrorism

1. It is important to bear in mind that one of the main reasons (although not the only reason) that terrorism is being legislated for in the comprehensive manner envisaged by the POCDATARA Bill is that South Africa has an international obligation to do so. This international obligation arises from South Africa’s ratification of the various counter terrorism conventions as well as from Security Council Resolution 1373 (2001).
2. In terms of Articles 26 and 27 of the Vienna Convention on the Law of Treaties, 1969 a treaty is binding on the States party to it and must be performed by them in good faith. A party may not invoke its domestic law (or a failure to incorporate a treaty into domestic law) as justification for a failure to give effect to a treaty obligation. South Africa has ratified 9 of the 12 counter terrorism conventions and is therefore obliged, in terms of international law, to legislate to give effect to these treaty obligations.
3. In terms of Article 25 of the UN Charter, all Member States of the United Nations agree to accept and carry out decisions of the Security Council. This obviously includes carrying out the obligations under SC Resolution 1373 (2001), and in this regard Member States are required to report regularly to the SC Counter Terrorism Committee on measures that they have taken to inter alia legislate against terrorism.
4. Therefore, contrary to the submission of the Cape Bar Council that international terrorism neither lends itself to legal definition or the exercise of impartial criminal jurisdiction , there is both an international obligation and an international expectation that all States will legislate against terrorism. This has in fact been the recent State practice and this bears testimony to the fact that terrorism can be legislated for.
5. A corollary of the obligation to implement a treaty that a State is party to, is the fact that all of the provisions of a treaty must be implemented, not only some of them . Therefore, South Africa is bound to give effect to the provisions of Article 3 of the OAU Convention on the Prevention and Combating of Terrorism, which provides that the armed struggle by peoples for self-determination, in accordance with international law and international humanitarian law, do not constitute terrorist acts. It is true that South Africa can determine how best to give effect to its treaty obligations, and the obligations do not have to be repeated verbatim in the implementing legislation, as long as the spirit of the obligation is given effect to.
6. However, it is difficult to see how the obligation of Article 3, as well as the political will to make provision for the national liberation movements can be properly reflected, unless it is legislated for (see also paragraph 8 below on the role of the judiciary in this regard).
7. In summary therefore, not only can terrorism be legislated for (as evidenced by State practice) but it must be legislated for, in terms of South Africa’s international obligations. Furthermore, a party to a treaty cannot selectively implement its treaty obligations – it must implement all the obligations under the treaty. In the case of the terrorism conventions this includes Article 3 of the OAU Convention on the struggles of peoples for national liberation and self-determination.
8. Following on these basic principles it is necessary to examine whether it is possible to legislate for, or include the concept of, self-determination and international humanitarian law in national legislation.

5. The principle of self determination

1. The fact that self-determination is a legal right is, in the 21^st century, beyond dispute. It is affirmed in a number of important legal instruments including Articles 1 and 55 of the UN Charter ; common Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights and Article 20 of the African Charter on Human and Peoples’ Rights .
2. The right to self-determination is also recognised in two important UN General Assembly resolutions - Resolution 1514 (XV) on the Declaration on the Granting of Independence to Colonial Countries and Peoples and Resolution 2625 (XXV) on the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations. Although UN Resolutions are not considered to create binding legal obligations on States, these two resolutions, and in particular Resolution 2625 are important because they are considered to be declaratory of international law principles.
3. It is true, however, that the notion and substantive content of the principle of self-determination is constantly evolving, and this may give rise to some uncertainty in the law. One of the main uncertainties in this regard is establishing who the "peoples" are who are entitled to self-determination e.g. can it include minorities in a State or does it refer only to the "peoples" of the State as a whole. However, simply because the precise legal content of a right is still uncertain and developing does not mean that judiciary must be precluded from considering it.
4. Thus section 235 of the Constitution (Act No. 108 of 1996) explicitly recognises the legal right and concept of self-determination by providing that:

"The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right to self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation".

The inclusion of the concept in the Constitution clearly indicates that the legislature has not felt it inappropriate to legislate for the concept of self-determination in the past. Moreover, while section 235 does specify the legal framework in which the concept is to be understood, the courts will be required to give substance and application to the general right. In doing so it can be assumed that the courts will consider how the concept of self-determination has been evolving in international law.

5. As indicated above, it is also true that the concept of self-determination is somewhat uncertain as it is continuously evolving in international law. However, this could be said for international law as a whole. International law includes codified international law and international customary law. It is easier to establish international law as it has been codified in conventions as there is a written record of the legal principle. It is, however, more difficult to establish what constitutes international customary law. International customary law is consists of two elements (i) consistent and widespread State practice (usus) and the belief that the belief that this prctice is obligatory in terms of a rule of law (opinio juris). As neither of these two elements of international customary law are codified, there is an inherent uncertainty that surrounds them.
6. This uncertainty, however is not an insurmountable difficulty and it does not detract from international customary law as a legal concept. This is explicitly recognised in the Constitution (Act No. 108 of 1996). Thus, in section 39 (1)(b) of the Constitution the courts are enjoined to have regard to international law when interpreting the Bill of Rights. In section 232 of the Constitution it is explicitly provided that "Customary international law is law in the Republic unless it is inconsistent with Constitution or an Act of Parliament".
7. Thus international law as a whole and international customary law in particular may have elements of uncertainty as the various legal principles are continuously evolving. However, this uncertainty did not deter the legislature from explicitly directing the courts to have regard to international law, and for explicitly providing a legal status for international customary law in the Republic. It therefore cannot be argued that an international law concept such as self-determination could not be included in an Act of Parliament as this contradicts the constitutional principles set out in section 39(1)(b) and section 231(2) of the Constitution.

6. International Humanitarian Law.

1. International humanitarian law is the body of international law that regulates the conduct of war. It is relevant in this instance because clause 1(4) of the Bill provides that it is only acts committed for the struggle of self-determination in accordance with the principles of international law including international humanitarian law that will not be considered to be terrorist acts.
2. International humanitarian law is more certain than the principle of self-determination as it has a larger measure of codified instruments governing the conduct of States and individuals during a war. This includes the three Hague Conventions of 1899 (mainly on the law of land and maritime warfare), the thirteen Hague Conventions of 1907, which deal mostly with the remaining aspects of the laws of wars, the four Geneva Conventions of 1949 and the two Protocols Additional to the Geneva Conventions of 1977.
3. There is therefore a greater measure of certainty with regard to the principle of international humanitarian law and many of the concerns raised by the Cape Bar Council with regard to the principle of self-determination do not apply here. However, there is still an element of uncertainty in international humanitarian law, as there is in all international law. Even if some concepts are unclear general principles, such as the duty not to target civilians and not to make indiscriminate attacks affecting the civilian population, are clear.
4. There is also general agreement that peoples who have a legal right to self-determination are entitled to fight a war of national liberation . Additional Protocol 1 also makes it clear that international humanitarian law applies to armed conflicts in which peoples are fighting to exercise their right of self-determination.
5. The reference to international law in general (which will include human rights principles) and international humanitarian law in particular is therefore extremely important in understanding clause 1(4). It is a general guideline to the judiciary, and a limitation to the scope of clause 1(4), that acts done contrary to the principles of international law and international humanitarian law, will not be covered by the exemption of clause 1(4). Put another way, if an act is contrary to international humanitarian law then it can be considered a terrorist act if it meets the other requirements in the Bill.
6. The reference to international law and international humanitarian law is therefore designed to address situations that the Cape Bar Council is concerned with – to make it clear that terrorist acts will not be condoned in any circumstance. It is for this reason that the addition of clause 1(5) in the Bill is not contradictory. Clause 1(5) provides that a political, philosophical, ideological, racial, ethnic, religious or any similar motive shall not be a justifiable defence for a terrorist act. Thus terrorist acts cannot be defended on any of these grounds. Acts for self-determination will not fall within the scope of clause 1(5), as they will have had to be done in accordance with international law and international humanitarian law, and therefore do not constitute terrorist acts.
7. It is for this reason that we are of the view that it is not necessary to include a proviso referring to Clause 1(4) in Clause 1(5), as the two clauses deal with separate issues.

7. The role of the Judiciary in recognising self-determination

1. The Cape Bar Council has suggested that it is not for the judiciary to recognise "a people" and their struggle for self-determination. They argue that this is a sovereign political function that must be performed by the national executive. In this regard they compare clause 1(4) with clause 17. In the latter, the Department of Foreign Affairs may issue an executive certificate to verify the status of an internationally protected person, and the court must accept this as a statement of fact.
2. It is true that the conduct of foreign relations is the prerogative of the national executive (the President acting together with Cabinet) . It is obviously undesirable to have a situation where different organs of state express themselves differently on the same subject matter. In order to avoid such a situation the courts may, as an exercise of their inherent jurisdiction to regulate their own procedure, decide to exercise judicial restraint and refuse to entertain a matter in view of its foreign policy implications . This is a common law principle and does not have to be legislated for. Thus, if in any particular instance the courts feel that it would be inadvisable to express themselves on a matter related to clause 1(4) then they can exercise judicial restraint and refer the matter to the executive.
3. Similarly, as part of the prerogative of the national executive to exercise foreign relations, the national executive may submit an executive certificate to the courts at any time. This power does not have to be legislated for. In other words, the national executive can, at any time, present its views to the court and in this way substitute the views of the court for those of the national executive on the particular factual situation.
4. It should be noted however, that some international law authorities are of the view that an executive certificate issued in terms of a common law power that expresses an opinion on international law is now subject to judicial review . In particular by virtue of the application of Sections 232 and 39(1)(b) the court is required to examine whether a statement in an executive certificate correctly reflects customary international law . By implication, if the court does not agree with the national executive’s interpretation then it can override this executive statement. This is one reason why the exemption clause should be included in the Bill, although the exemption can be said to form part of international law in any event.
5. Thus, there are procedures in common law that enable both the judiciary and the executive to deal with the consideration of self-determination in the courts, that would also take into consideration foreign policy sensitivities. This is an inherent power for both branches of government. It therefore does not need to be legislated for, although there is probably no harm in providing for the executive certificate in this instance as well, as has been done in Clause 17. However, also referring to the exemption explicitly may be wise as it avoids any uncertainty about whether the exclusionary principle reflected in clause 1(4) applies in South African law.

8. Summary

1. It will be apparent from the foregoing that we are of the view that including concepts such as self-determination and international humanitarian law in an Act of Parliament is neither impossible nor legally unsound. Self-determination is a recognised legal right in international law and international humanitarian law is a recognised framework for the law of war. The fact that many of the principles are reflected in international customary law is also not a deterrent to including them in the legislature. International law and in particular international customary law are recognised as valid sources of law by the Constitution and the courts must therefore take this into account in any relevant situation.
2. We are also of the view that including an exemption for acts of national liberation, as has been done in clause 1(4) will not encourage terrorist acts. There is a saving provision in this clause to ensure that acts done contrary to international law and in particular international humanitarian law will not be covered by the exemption.
3. It must be noted that the principle not to have national liberation movements labelled as terrorists could also be taken care of by common law principles such as judicial restraint and the executive certificate. However, the issue of whether or not to include the principle in the Bill is a political decision. In this regard there are two factors that should be taken into account, and balanced, when taking such a decision.
4. Firstly, because of South Africa’s political history and the sensitivity and subjectivity of the terrorism issue, it may be desirable to explicitly include the self-determination exception in the Bill so that a clear message is conveyed. This would then be a very clear guideline to the courts on how to interpret the Bill and avoids the danger of the court undertaking a judicial review of an executive decision in this regard.
5. On the other hand, a point that has been raised by this Office on previous occasions is the fact that the matters covered by clause 1(4) and 1(5) of the Bill have been exceptionally controversial in international negotiations. It should be noted that the principles set out in clause 1(4) are not reflected in any of the UN counter-terrorism conventions. It can therefore be anticipated that this Clause will draw much international attention (and criticism) from opponents of the principle (and the Security Council Counter Terrorism Committee) and the Government should be prepared for this.

J.B. SCHNEEBERGER PRETORIA

STATE LAW ADVISER (IL) 26 January 2004