AuthorMbaku, John Mukum
PositionIV. African Instruments Related to the Suppression and Prevention of Terrorism D. A Closer Look at Africa's Counter-Terrorism Instruments 3. The Provisions of the Algiers Convention through VI. Summary and Conclusion, with footnotes, p. 941-1020 - Maseko v. Prime Minister

Part 2 of 2

  1. The Provisions of the Algiers Convention

    This Article has already examined Article 1 of the Algiers Convention, which defines the important terms and expressions used in the Convention. In this section, the Article will examine the rest of the Convention's provisions. In Article 2, States Parties undertake to: "(a) review their national laws and establish criminal offenses for terrorist acts as defined in this Convention and make such acts punishable by appropriate penalties that take into account the grave nature of such offenses." (420) Article 2 also imposes an obligation on States Parties to "consider, as a matter of priority, the signing or ratification of, or accession to, the international instruments listed in the Annexture, which they have not yet signed, ratified or acceded to." (421)

    The Algiers Convention makes a distinction between terrorist acts, as defined in Article 1, and the actions of individuals and groups fighting for the right to free themselves from colonial and other forms of oppression. Specifically, Article 3 states as follows:

    Notwithstanding the provisions of Article 1, the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts. (422) In addition. Article 3 deals with the issue of "justification" for a terrorist act as defined in Article 1 and mandates that "[p]olitical, philosophical, ideological, racial, ethnic, religious or other motives shall not be a justifiable defense against a terrorist act." (423) Articles 1, 2 & 3 are classified under Part I, which deals with the "scope of application." (424) Articles 4 and 5 are found in Part II, which is devoted to the "areas of cooperation" as relates to the fight against terrorism. (425) Article 4 instructs States Parties to "undertake to refrain from any acts aimed at organizing, supporting, financing, committing or inciting to commit terrorist acts, or providing havens for terrorists, directly or indirectly, including the provision of weapons and their stockpiling in their countries and the issuing of visas and travel documents." (426) Article 4 makes clear that a State can directly commit terrorist acts or aid someone else in carrying out such acts. For example, the State of Libya was accused of "state terrorism" following the Lockerbie bombing incident. (427)

    Article 4 also imposes an obligation on States Parties to "adopt any legitimate measures aimed at preventing and combating terrorist acts in accordance with the provisions of this Convention and their respective national legislation." (428) Particular attention is paid to (i) the prevention of the territories of States Parties from being utilized as a base for carrying out terrorist acts; (ii) developing and strengthening, within each State Party, methods and mechanisms to monitor and detect plans or activities designed to foster the "illegal cross-border transportation, importation, export, stockpiling and use of arms, ammunition and explosives and other materials and means of combating terrorist acts"; (429) (iii) significantly strengthening mechanisms for protecting the security of members of diplomatic and consular missions accredited to a State Party, as well as the "premises of regional and international organizations to a State Party, in accordance with the relevant conventions and rules of international law";" (430) and (iv) taking all necessary measures to "prevent the establishment of terrorist support networks in any form whatsoever." (431)

    Articles 4(b) and 4(e) deal with monitoring and the collection of data on, for example, "terrorist elements, groups, movements and organizations." (432) Nevertheless, this provision is defined in an extremely broad manner, creating opportunities for States Parties to engage in behaviors that could constitute a serious violation of the right to privacy. Perhaps, more importantly, a State Party's monitoring and the collection of data can be extended to groups that are legitimately protesting government tyranny and are not engaging in any criminal activities. (433)

    According to Article 5, States Parties are instructed to cooperate with one another so that they can prevent and combat "terrorist acts in conformity with national legislation and procedures of each State," with specific reference to "(a) acts and crimes that are committed by terrorist groups, their leaders and elements, their headquarters and training camps, their means and sources of funding and acquisition of arms, the types of arms, ammunition and explosives used, and other means in their possession," (434) as well as "their communication and propaganda methods and techniques." (435)

    In addition to instructing States Parties to effect the arrest of "any person charged with a terrorist act against the interests of a State Party or against its nationals," Article 5 also imposes an obligation on States Parties to "undertake to respect the confidentiality of the information exchanged among them and not to provide such information to another State that is not party to this Convention, or to a third Party, without the prior consent of the State from where such information originated." (436) Under Article 5, Member States are also instructed to cooperate in other areas related to apprehending and bringing accused terrorists to justice. (437) This article, however, does not deal specifically with the privacy rights of persons accused of committing terrorist acts. (438)

    Part III of the Algiers Convention, which consists of Articles 6 and 7, deals with "jurisdiction over terrorist acts" and how a State can establish jurisdiction over a terrorist act as defined in Article 1. Article 7 informs a State Party about the measures that it should take if it receives information that "a person who has committed or who is alleged to have committed any terrorist act as defined in Article I may be present in its territory." (439) Article 7(3) provides some protections for an individual who is accused of committing terrorist acts and these include the right to communicate with "an appropriate representative of the State of which that person is a national," the right to "be assisted by a lawyer of his or her choice," and "be informed of his or her rights" as provided for in "sub-paragraphs (a), (b) and (c)" of Article 7. (440) It is not clear whether the State will pay for a lawyer for suspects who are unable or unwilling to do so.

    Part IV, which consists of Articles 8-13, deals with extradition of individuals accused of committing terrorist acts. Article 8(2) allows States Parties to define "the grounds on which extradition may not be granted." (441) However, in doing so, the State Party must also "indicate the legal basis in its national legislation or international conventions to which it is a party which excludes such extradition." (442) This information was to be sent to the OAU Secretary General who was then directed to forward the grounds on which extradition may not be granted to the States Parties to the Convention. (443)

    Limitations to the granting of extradition requests are provided in Article 8(3). If, for example, a person accused of committing a terrorist act has been prosecuted for that terrorist act by a competent authority of the "Requested State" (444) and a final judgment has been rendered, an extradition request for this individual should not be granted. (445) In addition, an extradition request may be denied "if the competent authority of the requested State has decided either not to institute or terminate proceedings in respect of the same act or acts." (446) Finally, Article 8 instructs States Parties to bring alleged offenders within their jurisdiction to trial by a competent authority and "without undue delay" regardless of whether or not the offense was committed in their territory. (447)

    Through Article 9, States Parties are mandated and obligated to include any terrorist act, as defined in Article 1, as an "extraditable offense," in any extradition treaty existing between them and other States Parties to the Convention and this should be done "before or after the entry into force of [the] Convention." (448) Article 10 provides the avenues through which extradition requests between the States Parties may be effected--they may be effected through "diplomatic channels" or "other appropriate organs in the concerned States." (449) Article 11 notes that extradition requests must be in writing and must be accompanied by certain prescribed documents and these are;

    (a) an original or authenticated copy of the sentence, warrant of arrest or any order or other judicial decision made, in accordance with the procedures laid down in the laws of the requesting State;

    (b) a statement describing the offenses for which extradition is being requested, indicating the date and place of its commission, the offense committed, any convictions made and a copy of the provisions of the applicable law; and

    (c) as comprehensive a description as possible of the wanted person together with any other information which may assist in establishing the person's identity and nationality. (450)

    Article 12 instructs States Parties on how to deal with extradition requests in "urgent cases" and Article 13 provides States Parties with advice on how they can deal with multiple requests for the extradition of "the same suspect and for the same or different terrorist acts." (451) In the case of multiple requests to extradite the "same suspect and for the same or different terrorist acts," the requested State Party "shall decide on these requests having regard to all the prevailing circumstances, particularly the possibility of subsequent extradition, the respective dates for receipt of the requests, and the degree of seriousness of the crime." (452) Once a State has...

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