PRESENTATION TO SELECT COMMITTEE FOR ECONOMIC AND FOREIGN AFFAIRS RATIFICATION OF THE INTERNATIONAL CONVENTION ON THE SUPPRESSION OF ACTS OF NUCLEAR TERRORISM

INTERNATIONAL COUNTER-TERRORISM INSTRUMENTS RATIFIED BY RSA (11)  (a) The Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo on 14 September The Republic became a Party thereto, by accession on 26 May 1972;  (b) the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December The Republic became a Party thereto by ratification on 30 May 1972;  (c) the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, concluded at Montreal on 23 September The Republic became a Party thereto by ratification on 30 May 1972;

INTERNATIONAL COUNTER-TERRORISM INSTRUMENTS RATIFIED BY RSA  (d) the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December The Republic became a Party thereto by accession on 23 September 2003;  (e) the International Convention Against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December The Republic became a Party thereto by accession on 23 September 2003;  (f) the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, adopted at Montreal on 24 February The Republic became a Party thereto by accession on 21 September 1998;  (g) the Convention on the Marking of Plastic Explosives for the Purpose of Detection, signed at Montreal on 1 March The Republic became a Party thereto by accession on 1 December 1999;

INTERNATIONAL COUNTER-TERRORISM INSTRUMENTS RATIFIED BY RSA  (h) the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December The Republic became a Party thereto by ratification on 1 May 2003; and  (i) the International Convention on the Suppression of the Financing of Terrorism, adopted by the United Nations General Assembly on 9 December The Republic became a Party thereto by ratification on 1 May 2003;  (j) The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, adopted at Rome on 10 March 1988;  (k) the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms on the Continental Shelf, adopted at Rome on 10 March 1988;

CONVENTIONS NOT YET RATIFIED BY RSA  International Convention on the Suppression of Acts of Nuclear Terrorism, before Committee  (l) the Convention on the Physical Protection of Nuclear Material, adopted at Vienna on 26 October 1979, and signed on behalf of the Republic on 18 May 1981; Ratification dealt with by the Department of Minerals and Energy

SCOPE OF THIS CONVENTION  Convention aimed at prevention, and combating of terrorist activities through the abuse of nuclear material.  Convention not applicable to activities of armed forces during an armed conflict- that is regulated by international law. [Article 4(2)]  The Convention does not address the legality of the use or threat of use of nuclear weapons by States.

STATUS OF CONVENTION  Convention adopted by General Assembly of the United Nations on 13 April 2005  Convention is not in force yet.  It enters into force on 30 th day following the date of the deposit of the 22 nd instrument of ratification, acceptance, or accession. (Art 25)  Convention opened for signature from 14 Sept 2005 until 31 December President Mbeki signed it on behalf of the Republic of South Africa on 14 September  There are 107 signatories to the Convention and 8 States Parties have already ratified it.

SIGNATORIES [107]  Afghanistan, Albania, Andorra, Argentina, Armenia, Australia, Austria, Azerbaijan, Belarus, Belgium, Benin, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Burundi, Canada, Chile, China, Costa Rica, Croatia, Cyprus, Czech Rep. Denmark, Djibouti, Ecuador, Egypt, El Salvador, Estonia, Finland, France, Gabon, Germany, Greece, Guatemala, Guinea, Guyana, Hungary, Iceland, India, Ireland, Italy, Japan, Jordan, Kazakhstan, Kenya, Kiribati, Kuwait, Kyrgystan, Latvia, Lebanon, Lesotho, Liberia, Libyan Arab Jamahiriya, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malaysia, Malta, Mauritius, Mexico, Monaco, Mongolia, Morocco, Mozambique, Netherlands, New Zealand, Nicaragua, Norway, Palau, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Republic of Korea, Republic of Moldova, Romania, Russian Federation, Rwanda, Sao Tome and Principe, Senegal, Serbia, Seychelles, Sierra Leone, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Swaziland, Switzerland, Syrian Arab Republic, Tajikistan, Thailand, The Former Yugoslav Republic of Macedonia, Timor-Leste, Togo, Turkey, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay

STATES PARTIES TO CONVENTION  Austria – Ratified on 14 September  Czech Republic- Ratified on 25 July  Kenya- Ratified 13 April  Latvia- Ratified 25 July  Mexico- Ratified 27 June  Mongolia- Ratified 6 October  Serbia- Ratified 26 September  Slovakia- Ratified 23 March 2006.

BACKGROUND  The International Convention on the Suppression of Acts of Nuclear Terrorism was in the process of drafting when the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 was drafted and adopted.  The draft Convention was taken into account in the drafting of the above Act, and the offences required to be enacted in terms of the Convention, are already included in the Act. (Schedule to Act amended Nuclear Energy Act, 1999, and the Non-Proliferation of Weapons of Mass Destruction Act, 1993).

SPECIFIC OFFENCE Sect 34A NUCLEAR ENERGY ACT  (2) No person may—  (a) intentionally and without lawful authority, receive, possess, use, transfer, alter, dispose of or disperse, nuclear material which causes or is likely to cause death or serious bodily injury to any person or substantial damage to property;  (b) intentionally obtain nuclear material by means of theft or robbery;  (c) intentionally obtain nuclear material by means of embezzlement or fraud;  (d) intentionally demand nuclear material by threat or use of force, or by any other form of intimidation;

Continue… section 34A (No person may)  (e) intentionally threaten to—  (i) use nuclear material to cause death or serious injury to any person or substantial damage to property;  (ii) commit an act described in paragraph (b) in order to compel a natural or legal person, international organisation or State to do or to refrain from doing any act;

Continue… Sect 34A (No person may)  (f) use any nuclear material or device or use or damage a nuclear installation or nuclear plant in a manner which release or risk the release of radio-active material, with the intent to—  (i) cause death or serious bodily injury;  (ii) cause substantial damage to property or the environment; or  (iii) to compel a natural or juristic person, an international organisation or a State to do, to abstain or refrain from doing an act; or

Continue sect 34A  (No person may)  (g) attempt, conspire with any other person, or aid, abet, induce,incite, instigate, instruct or command, counsel or procure another person, to commit an offence referred to in paragraphs (a) to (f).’’ The above offence is included in the definition of “Convention offences” in Act 33 0f 2004, making all measures in respect of jurisdiction, extradition, asset forfeiture, reporting, etc in Act 33 of 2004, applicable to section 34A of the Nuclear Energy Act.

OTHER RELATED OFFENCES  Section 2 of the counter-terrorism Act 33/2004 provides for a general offence of terrorism. The definition of terrorist activity, which is an element of the offence is wide enough to cover acts of nuclear terrorism  Section 5 of Act 33 of 2004, provides for the use of explosive or lethal devices, which device could include nuclear devices.

EXCLUSION OF POLITICAL MOTIVE  Section 1(5) of Act 33 of 2004, is compliant with the Convention in that political, philosophical, ideological ethnic, racial religious or other motive shall not be regarded a justifiable defence in respect of an offence of which the definition of terrorist activity forms an integral part.

OTHER OBLIGATIONS  Extended jurisdiction for South African Courts dealt with in section 15 of Act 33 of (Art 9 of Convention)  Political exception in extradition, right of communication and to be visited by representative of State of origin of arrested person and protection against prosecution on sole grounds of race, politics, religion, dealt with in the Extradition Act, amended by Act 33 of 2004 (Art’s 10, 15, 16 of Convention)  Principle of Prosecute or Extradite reflected in our laws. (art 10 of Convention)  Protection of radio-active material-Dealt with in Act 33 of 2004, and the Nuclear Energy Act. Schedule 1 to Act 33 of 2004 amended the Nuclear Energy Act, 1999, to specifically provide for acts of nuclear terrorism

OTHER OBLIGATIONS  Act 33 of 2004, provides for numerous other crimes related to terrorist activities relating to encouragement, instigation, organization, financing, or providing technical assistance or information in order to enable a person to commit a terrorist activity.  The Prevention of Organised Crime Act and the Financial Intelligence Centre Act have also been amended to address to combating of the Financing of Terrorist Activities see obligations in Article 7 of the Convention.

CONCLUSION  No new legislation is required to effectively implement the Convention.  Convention was signed by President during last year.  South Africa serious to become Party to all international instruments to counter terrorism.  State Law Advisers Justice and International Law (Foreign Affairs opinion that ratification may proceed)

RECOMMENDATION  That the Committee recommend to the National Council of Provinces the approval of the INTERNATIONAL CONVENTION ON THE SUPPRESSION OF ACTS OF NUCLEAR TERRORISM as required by section 231(2) of the Constitution.  Once both Houses of Parliament has approved the Convention, the necessary steps will be taken through the Department of Foreign Affairs for the ratification of the Convention and depositing of the instrument of ratification

Thank you ! Asst Comm. PC Jacobs Legal Support: Crime Operations South African Police Service