Organization of African Unity Anti-Terrorism Protocol, Convention on Suppression of Nuclear Terrorism & Police Co operation Agre

NCOP Security and Justice

19 September 2006
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Meeting report

Select Committee on Security and Constitutional Affairs

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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