Organization of African Unity Anti-Terrorism Protocol, Convention on Suppression of Nuclear Terrorism & Police Co operation Agre
NCOP Security and Justice
19 September 2006
Meeting Summary
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Meeting report
SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS
19 September 2006
ORGANIZATION OF AFRICAN UNITY ANTI-TERRORISM PROTOCOL, CONVENTION ON
SUPPRESSION OF NUCLEAR TERRORISM AND POLICE CO OPERATION AGREEMENT WITH UNITED
ARAB EMIRATES
Chairperson: Mr Kgoshi, L Mokoena (ANC, Limpopo)
Documents handed out:
RSA/United
Arab Emirates Memorandum of Understanding on Police Co-operation.
Presentation on the
RSA/United Arab Emirates Police Cooperation Agreement
International Convention
on the Suppression of Acts of Nuclear Terrorism
Explanatory
Memorandum on Convention on the Suppression of Acts of Nuclear Terrorism
Presentation on
Suppression of Nuclear Terrorism Convention
OAU Convention on
Prevention and Combating of Terrorism
Explanatory
Memorandum on OAU Convention on Prevention and Combating of Terrorism
Presentation on
Ratification of AU Protocol Convention on Prevention and Combating of Terrorism
SUMMARY
The
Committee was briefed on the ratification of the Protocol to supplement the OAU
(now African Union) Convention on the Prevention and Combating of Terrorism,
subject to two reservations in relation to clauses dealing with mercenaries and
with extradition orders. These two clauses conflicted slightly with South
African legislation. Questions were asked on the use of the word “suppression”,
the extended jurisdiction of South Africa, and clarity on the wording and
inclusively of the word “devices” in the Convention. Questions were asked on
the countries that had ratified this Protocol, the procedure should a country
default, the role of communications monitoring in the African Union, and the
definition of terrorism. Further questions related to the organization and
implementation, its financial implications and its possible impact on drugs and
money laundering The Committee resolved to recommend ratification of the
protocol.
The second briefing concerned ratification of the International Convention on
the Suppression of Acts of Nuclear Terrorism. This convention had been used
when drafting South African legislation that already covered the issues in the
Convention, so that no amendments were needed to any local legislation. The
ratification would reflect South Africa’s commitment to combating terrorist
activity. Questions related to the jurisdiction and the definition of nuclear
activity, the binding effect of the Convention on countries that did not sign,
and the reasons why South Africa had not signed earlier. The Committee resolved
to approve ratification of the Convention
The Committee was briefed on a joint police cooperation agreement that had
recently been entered into between South Africa and the United Arab Emirates.
The principles and benefits for South Africa were outlined. There was no need
for this agreement to be ratified. It merely needed to be tabled in Parliament
for information. Similar agreements existed with numerous other countries
already. Questions were asked for clarification purposes, around whether
Nigeria had signed, the importance of this agreement in light of other
agreements, the possibility of cancellation should one party default and the
impact of the agreement. The Committee agreed that this cooperation was
sensible and noted that there was no need for ratification as it merely had to
be tabled in Parliament.
MINUTES
Briefing on the African Union (AU) Protocol to the OAU Convention on the
Prevention and Combating of Terrorism
Adv Phillip Jacobs, Deputy Commissioner, Legal support for Crime
Operations, South African Police Service (SAPS), reported that the Protocol had
been drafted to supplement some of the provisions of the OAU Convention on
Prevention and Combating of Terrorism. The protocol’s main aim was to enhance
the African Union in the provision of peace and security and to provide
technical assistance to achieve the goals set out in the Convention. South
Africa had been a signatory to the previous Convention. In accordance with
Section 21 of the Constitution, the approval of both houses was required to
ratify the Protocol.
Adv Jacobs made reference to the OAU Convention relating to the definitions on
mercenary activity (mercenarism) and noted that South African law already
complied with this definition, and in fact went further. He noted that the new
Convention succeeded in going further than the United Nations convention..
South Africa had already committed itself, and therefore should participate in
the process of the suppression of terrorism and the eradication of mercenaries.
Adv Jacobs recommended that the Committee and the NCOP approve this protocol.
Discussion
The Chairperson asked Adv Jacobs how many countries had ratified this
Protocol already, and if not, whether there was any time frame in which they
should ratify the Protocol.
Adv Jacobs stated that to date 30 countries had ratified the Protocol and that
it was already in force, therefore other countries were simply obliged to bring
themselves in line with it. With regard to the time frame, Adv Jacobs stated
that the time frame was country specific. However, considering the global moves
against terrorism, Adv Jacobs asserted that it was important that South Africa
should show its resolve as the African continent had not been exempt from
terrorism.
The Chairperson queried the procedures in place for a defaulting country that
had previously ratified the treaty. He asked if there were any provisions made
for the implementation of sanctions for a defaulting country.
Adv Jacobs highlighted the role of the African Union and their systems of peer
review, annual reports and various conventions. Adv Jacobs asserted that a
defaulting country would be monitored by the actions of the African Union.
Mr M Mzisi (IFP) asked if the procedures of the AU against defaulting countries
would be made public.
Adv Jacobs replied that Mr Mzizi’s questions served to enlighten the Committee
on the role of the communications monitoring and how it was restricted. There
was a need for a regulatory body to monitor the Protocol, other than the body
of the African Union.
Mr Msizi questioned how the ideal of eliminating mercenaries throughout Africa
was to be achieved.
Mr Jacobs noted the unfortunate grouping of mercenaries and terrorists
together, although he did understand the overlap.
Mr Msizi referred to Article 9 of the Protocol, which defined the combating and
prevention of terrorism. The USA definition of terrorism was rather religion
and culture-specific and resulted in negative effects. He therefore queried how
exactly the definition of terrorism was to be made.
Mr D Worth’s (DA, Free State) queried Article 1 of the Protocol, and stated
that the wording describing terrorism could also be interpreted to describe a
state party or a political party. He
noted that the definitions of terrorism varied from state to state, and
asserted that there was a need for uniformity in the definition.
Adv Jacobs noted that several questions overlapped in their query of the
definition of terrorism. He noted that there was no universal definition of a
terrorist, and that there was careful attention taken to this when the Protocol
was drafted. The Protocol’s drafters had decided not to attempt to define the
person of a terrorist, but rather to define an act or motive of terrorism. In
doing so, they had sufficiently narrowed down the definition. He noted that in
the Protocol there was no branding or grouping of terrorist types, so that
terrorists could belong to any group, unlike the USA definitions. He explained the South African provisions
that no group or organization could be branded and the Security Council’s stand
on the same issue.
Mr Van Heerden (FF, Free State)remarked on the definition of terrorism, noting
that it was indeed very wide. He noted that as a result of this many acts could
be classified as terrorist actions, for example the actions taken by COSATU at
the borders of Zimbabwe or other violent strikes, such as the ones recently
experienced in South Africa.
Mr Jacobs referred to previous debates around the definition of terrorism, and
noted that South African aligned itself with Canadian legislation in this
respect to allow for a wide definition. However he pointed out that trade union
activities were expressly excluded, and furthermore the aspect of lawfulness
was removed, so that an unlawful activity would not automatically be deemed a
terrorist activity.
Mr Msizi queried the proposals to register all electronic media communications
with service providers, which in itself was causing problems, and wondered how
this would assist in the combating of terrorism.
Mr A Moseki (ANC, North West) questioned the number of countries needed to sign
the convention.
Adv Jacobs stated that 15 countries were required to sign in order that it
become effective.
Mr D Worth questioned the organization and implementation of the Protocol and
asked who would be responsible for this.
Adv Jacobs also noted that there were numerous other conventions. The role of
the African Union Convention was important because, although there were
commonalities with other protocols, the AU definitions and procedures were the
best possible suggestions for the African Continent. Adv Jacobs believed that
there were workable suggestions, and the legislation was sufficiently
accommodating.
Mr J Le Roux (DA, Eastern Cape) questioned the financial implications of the
Protocol and the impact it would have on drugs, money laundering and terrorism.
Adv Jacobs noted that there was little that could be done with reference to
issues of drugs and money laundering through this Protocol. However he noted
that in situations as these anarchy and terrorism could be aligned.
Mr Mzizi agreed with Adv Jacobs statement, but commented that within a
struggling country money laundering was equivalent to terrorism since hunger
knew no bounds and mass populations of struggling countries would be targets of
both terrorism and money laundering.
Adv Jacobs highlighted the different ways that money laundering could be
measured and stopped, including the use of legislation to provide freezing
orders on assets for persons suspected of financing terrorism, and the
different channels used to track money sources.
The Committee resolved to recommend ratification of the protocol. Mr Van
Heerden was allocated the task of informing of the decision of the Committee in
the fourth term.
Ratification of the International convention for the Suppression of acts of
Nuclear Terrorism
Adv Jacobs gave a presentation on
the main import and effects of this International Convention, and urged the
Committee to ratify the Convention, noting that the Departments of Foreign
Affairs and Justice supported the ratification. He noted that this was a
versatile Convention that included the provisions of earlier Conventions as
well as including recent relevant sections. There was specific provision made
for nuclear terrorism, which Adv Jacobs felt was particularly relevant to South
Africa. This provision excluded any form of political motive for such use of
nuclear warfare. Once again, he stressed that the Convention was well in line
with South Africa’s stated objectives to combat terrorism, that there was no
conflict at all and no further amendments required to any South African
legislation. The Convention required to be ratified by both Houses of
Parliament.
Discussion
The Chairperson submitted that this issues seemed clear.
Mr Mzizi stated that he was not averse to the idea of suppression of terrorism
and nuclear activity, but had not previously heard of South Africa declaring
itself on this matter. He asked for
further explanation on the uses of nuclear power and questioned the need for
it. The Chairperson ruled that this was a political question and should not be
answered by Adv Jacobs.
Mr Moseki stated that he would support unconditional acceptance for the
Convention, but requested some clarity on the implied extension of jurisdiction
of the South African Courts.
Mr N Mack (ANC, Western Cape) requested further information relating to the
nuclear devices as he considered it was not clear that the use of nuclear power
could be used for different means. This should be clarified in light of South
Africa’s desire to use nuclear energy.
Adv Jacobs noted that the questions relating to jurisdiction and devices
overlapped. He noted that the jurisdiction extended outside of South Africa’s
boundaries. However the devices issue did not relate to nuclear use for
economic means as opposed to use for governmental blackmail or violence. He
commented that South Africa had a role on a macro level in the nuclear arena
due to its nuclear equipment.
Mr N Mack queried the protocol relating to parties that had not signed, noting
that environmental issues were a major consideration. He asked to what extent
these countries would be bound and what the implications would be for them.
Adv Jacobs noted that this Convention was open to international ratification.
The Chairperson did not believe there was any obstacle to ratification, but
queried why South Africa was the last country to sign
Adv Jacobs replied that the Department of Safety and Security had delayed the
procedure.
The Committee resolved to approve ratification of the Convention and Mr Mack
was requested to submit a report on the Committee behalf.
Briefing on South African and United Arab Emirates (UAE) Police co operation
agreement
Adv Jacobs noted that no decision was required from the Committee on this
matter, as once the agreement had been made it did not require to be approved
by either House, but merely to be tabled in Parliament.
He asserted that there was an obligation on South Africa to pursue cooperative
policing agreements in order to strengthen its position globally. He provided
the Committee with an overview of actions already taken to allow insight into
the other agreements taking place. New technologies and new forms of crime were
constantly developing and the only way in which they could be combated was
through international co-operation. There had been international calls made for
the combating of crimes involving drugs, jewels and fake documents and South
Africa should assist and co operate with other countries on these issues. South Africa also offered assistance with
training needs and in return gained assistance from other countries.
Discussion
Mr Mzizi noted his appreciation of cooperation from many countries and
queried whether Nigeria had actually signed any treaties or agreements relating
to cooperation, considering their role in drug trafficking.
Adv Jacobs answered that there was indeed an agreement with Nigeria, concluded
two years ago.
Mr Van Heerden stated he had no problem with agreements although he questioned
the role and importance of this particular one, given the vast number of
agreements in action at present to attempt to combat crime.
Adv Jacobs answered that this agreement was to be seen as an instrument to
combat organized crime beyond the United Nations Convention for combating
crime, and therefore should make a significant impact.
The Chairperson questioned the position if South Africa felt that a country
that was party to the agreement was acting in bad faith, and asked about
mechanisms for canceling such an agreement.
Adv Jacobs replied that Article 7 of the agreement outlined that a withdrawal
from the agreement must be given in writing, which indicated that it was
possible to cancel an agreement where another party was acting in bad faith.
The Chairperson noted that expenses were to be borne by the requesting party.
The Chairperson asked for clarity on the wording surrounding “consultation”.
Adv Jacobs noted the meaning of this term when used in domestic law but
clarified that here it was used in the context of an international area, where
consultation generally referred to a process of interaction.
The Committee agreed that there was nothing contentious
The meeting was adjourned.
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