Institute for Security Studies Institute for Security Studies Submission on the Anti-Terrorism Bill Some Comments and Suggested Approaches

The ISS Submission Background on the Institute The ISS Project on Terrorism in SADC The Submission: –Proposed Counter-Terrorism Legislation

Part 1: Definitions in the Anti- Terrorism Bill 2003 Title –Objective envisaged to counter terrorism Definition –“Terrorist Act”: ‘‘terrorist act’’ means an unlawful act, committed in or outside the Republic; (a) a convention offence; or (b) likely to intimidate the public or a segment of the public;

Convention Offences Convention Offences should be separate from the definition of “terrorist act” It should form part of “Offences and Penalties” section of the Act

Convention Offences Aircraft and Airport Safety Safety of Maritime Navigation Fixed Platforms on the Continental Shelf Taking of Hostages Protection of Internationally Protected Persons Physical Protection of Nuclear Material Marking of Plastic Explosives Delivering, placing, discharging or detonating an explosive device or other lethal device Financing of Terrorism Hoaxes involving noxious substances or things or explosives or other lethal devices or weapons of mass destruction Algiers Convention

ISS Definition (Part 1) “terrorist act” means: a) any act which is a violation of the criminal laws of the Republic 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 (iii)create general insurrection in a State. b) is 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); or

ISS Definition (Part 2) c)is designed or intended to disrupt any computer system or the provision of services directly related to governmental computer systems, communications infrastructure, banking or financial services, utilities, transportation or other essential infrastructure; or d)involves releasing into the environment or any part thereof of distributing or exposing the public or any part thereof to – (i)any dangerous, hazardous, radioactive or harmful substance; or (ii)any toxic chemical; or (iii)any microbial or other biological agent or toxin e) Notwithstanding subsections (a) to (d) an act which disrupts any services and is committed in pursuance of a protest, demonstration or stoppage of work, shall be deemed not to be a terrorist act within the meaning of this definition so long as the act is not intended to result in any harm.

Part 2: Measures Related to Offences and Penalties Offences and Penalties Information Sharing and Mutual Legal Assistance

Offences and Penalties Banning of organizations –Historical Context –International Milieu Harboring and supporting terrorists –“Knowingly” Bail

Information Sharing and Mutual Legal Assistance Jurisdiction in respect of the offences Territory Active personality Passive personality Crimes against the state Universal jurisdiction Flipside of jurisdiction is extradition

Part 3: Investigative Hearings Replacement for formerly proposed “detention without trial” Potential human rights concerns –Order for Custody of Thing –Power of the Court with regard to Recalcitrant Witness Implications for journalists –Testimony should be “direct and important” to core issues of the case –Should convey information that could not reasonably obtained from other sources Rather cross reference with article 205 of the Criminal Procedure Act 51 of 1977

Part 4: Measures to Combat Terrorism Combating Support for Terrorist Organizations Declaration of Terrorist Organization Funding and Financing of Terrorist Entity –Raison d’être for Act

Part 5: Suggested Counter Terrorism Approach Holistic Approach –Systems Theory –“Prevention and Cure” Strategic Approach –Balance between threat and legislation Cross Referencing to other Legislation –Judicial Matters Amendment Act (1998) –Foreign Military Assistance Act (1998)