- Non-refoulement — Right to life — Detention — Right to fair trial — Asylum — Freedom of expression — Terrorism — Aut dedere aut judicare
Measures to combat terrorism … are only legitimate if they respect the fundamental principles and the universally recognized standards of international law, in particular, international human rights law and international humanitarian law.1
In June 2011, Africa celebrated the 30th anniversary of the African Charter on Human and Peoples’ Rights 19812 (African Charter) which, together with the Constitutive Act of the African Union 20003 (Constitutive Act), make up the founding text for the actions of the mechanisms with which this continent has been endowed to promote and protect human rights.4
It is to be hoped that this important landmark in the African Charter’s existence will be put to good purpose by African leaders to launch in-depth reflection on the References(p. 839) progress achieved, and the difficulties encountered, in protecting human life and dignity on the continent since the Summit of the Organization of African Unity (OAU) held in Nairobi, Kenya in 1981, which marked the consecration of Africa’s effective entrance into the then rarefied circle of continents endowed with mechanisms to protect human rights.
It also provides an opportunity to highlight the issues and challenges of human rights protection in a context of heightened poverty and increasing insecurity of all kinds within African states. More specifically, reflecting upon the themes of the current book, this exercise will undoubtedly lead to the observation that, despite a relatively clear legal framework, African human rights protection mechanisms have not achieved any notable progress in terms of effectively protecting human rights in the context of the fight against terrorism undertaken by many African states.
Indeed, since the beginning of the 21st century, Africa has been viewed by many analysts as the second continent, after Asia, most seriously affected by the phenomenon of terrorism, not only in terms of the number of victims of terrorist acts, but also in terms of the activities of groups considered to belong to terrorist movements that are known to international security services.5 For example, South Africa, Algeria, Egypt, Kenya, Morocco, Nigeria, Uganda, Tanzania, Tunisia, and more recently Mali, Mauritania, Niger, and Somalia are well known for not only being sanctuaries for terrorist movements, but also for having been the theatre of terrorist attacks, hostage takings, and other crimes perpetrated by extremist groups.6 In the last three years, the continent has even moved on to a sort of internationalization of terrorist action, with the allegiance of the most active groups in the Saharan and Eastern regions to al Qaeda, and the extension of the activities of the Lord’s Resistance Army (LRA) from Uganda to the Democratic Republic of Congo (DRC), the Central African Republic, and Sudan.7 Terrorist acts on the African continent generally take the form of attacks against African or Western interests, and the use of the continent as a place of refuge, recruitment, and transit of terrorists, and fundraising for other illicit activities.8
(p. 840) The great vulnerability or exposure of the continent to terrorism is in part attributable to the vast expanses of unoccupied territory found in most African states; coupled with the porousness, length, isolation, and lack of surveillance of their borders, which promote, or at least permit, crime and illegal migration; and, above all, due to the mismanagement and corruption of security services, combined with the circulation of illegal small arms and light weapons throughout most of the continent.9
The statistics drawn from these incidents are enlightening with regard to the direct impact of terrorism on human lives, and the link between terrorism and human rights—especially the rights to life, physical integrity, freedom and security of the person—and, more generally, its impact on the stability and security of states and their socio-economic development. Nevertheless, the reactions of the regional and continental mechanisms for the protection of human rights in Africa, not least with respect to the protection of human rights within the framework of the fight against terrorism, remain extremely timorous or even indifferent. A notable feature is that they often abandon perpetrators and victims of terrorist acts to the whims of the states where terrorist acts have occurred which, almost unanimously, favour a repressive approach over seeking a balance between protecting the public interest and the rights of the people living under their jurisdiction.
This raises the question as to whether such an approach is compatible with the spirit and the letter of the Constitutive Act and the African Charter; and whether through their silence, or at least their inaction, the African mechanisms for the protection of human rights—foremost among which is the African Commission on Human and Peoples’ Rights (ACHPR)—have not failed in the mission entrusted to them. In the light of recent events during which certain African states were guilty of flagrant violations of their human rights commitments,10 there is a fresh urgency to adopt a new approach to the protection of human rights in the framework of the fight against terrorism. In particular, there is a need for an approach which will focus on closer monitoring of the actions of states, and which will permit and encourage more frequent interventions by existing regional and continental mechanisms for the protection of human rights.
References(p. 841) 2. The Normative Framework of the Fight Against Terrorism11
Due to their spectacular nature and psychological impact, the attacks of 11 September 2001 (9/11) in the United States (US) sparked a new global awareness of the dangers posed by terrorism to the very existence of the state and its democratic institutions. The immediate, and in many ways opportunistic, reaction of many African states to this new challenge of our modern age has been to adopt new laws that are extremely prejudicial to freedoms and which could be wielded at will against the media and political opposition.
More specifically, while it appears that the African Charter was the first human rights treaty explicitly to forbid African states from allowing ‘their territories [to] … be used as bases for subversive or terrorist activities against the people of any other State party to the present Charter’, the actual involvement of African states in the fight against terrorism can be traced back to the early 1990s. In particular, the Kampala, Uganda conference on security, stability, development, and cooperation in Africa (CSSDCA),12 and the OAU’s adoption of resolutions and declarations13 on all forms of extremism, fanaticism, and terrorism on the continent, were especially influential.
It was not though until 1999, during the 35th ordinary session of the OAU, that Member States finally agreed14 on the necessity of setting up a legal framework for the fight against terrorism ‘equal to the challenges of terrorism and the dangers it poses to the stability and security of States and the enterprise of regional cooperation and References(p. 842) integration they intend to create’.15 On its entry into force in December 2002, the instrument generally known as the OAU Convention on the Prevention and Combating of Terrorism 199916 (Algiers Convention) became the chief legal instrument invoked by states to restrict the exercise of numerous fundamental rights and liberties recognized by the African Charter, and to transgress the basic principles of international law and the principles of the rule of law. This was made possible by its broad and ambiguous definition of terrorist acts, as well as by its establishment of inter-state cooperation mechanisms that tended to facilitate infringements of the principles of rule of law and breaches of human rights.
A ‘terrorist act’, rather than ‘terrorism’, is defined by Article 1 Algiers Convention as any act or threat ‘which may endanger the life, physical integrity or freedom of … any person … or causes or may cause damage to public or private property [inter alia]’. This definition also contains distinct and alternative subjective or intentional elements, namely: to ‘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’; the intention to ‘disrupt any public service, the delivery of any essential service to the public or to create a public emergency’; the intention to ‘create general insurrection in a State’. Furthermore, the Algiers Convention also criminalizes ‘any promotion, sponsoring, contribution to, command, aid, incitement, encouragement, attempt, threat, conspiracy, organizing, or procurement of any person, with the intent to commit’17 a terrorist act.
By using, in a legal definition, such vague and ambiguous expressions as ‘according to certain principles’, ‘contribution’, and ‘encouragement’; by allowing the criminalization of the exercise of fundamental freedoms, such as the right to strike,18 which could easily be assimilated with ‘terrorist’ methods; and above all, by assimilating insurrection with terrorism, the Algiers Convention effectively eliminates the difference between political offences and terrorist acts and could even be construed as denying the very existence of political offences.
Yet terrorist acts and political offences are different categories under criminal law, and are subject to separate rules, particularly with respect to extradition. Nevertheless, under the current wording of the Algiers Convention, it is possible that terrorist References(p. 843) acts may be committed during an insurrection, in which case there is a set of concurrent crimes for which the perpetrators may be brought to justice.
Furthermore, the definition of a terrorist act, as provided in the Algiers Convention, infringes the principle of legality—nullum crimen sine lege, nulla poena sine lege19—to the extent that it adversely affects the strict and specific definition of the offence. Indeed, according to this principle, acts described as criminal offences by either national or international law must be defined clearly and without ambiguity.20 This was clearly pointed out by the United Nations (UN) Special Rapporteur on the Independence of Judges and Lawyers, when he recalled that vague, ‘nebulous’, or unspecific legal definitions, and those that make it possible to criminalize acts that are legitimate and/or permitted in the eyes of international law, are against international human rights law and the ‘general conditions prescribed by international law’.21
In order effectively to combat terrorism and eradicate it in all of its forms and manifestations across the African continent, the Algiers Convention requires that States Parties make terrorism a criminal offence in their national legislation; set up mechanisms for close cooperation between other Member States; and, above all, requires them to try or extradite any presumed perpetrators of terrorist acts in conformity with the principles of international human rights law and the African Charter. The issue of effective intra-African continental cooperation is examined in detail elsewhere in the current volume,22 and so will not be discussed in detail here other than in relation to issues of human rights compliance.
States Parties must, in principle and within a year following their ratification of the Algiers Convention, take the following measures: review their national laws and establish criminal offences for terrorist acts, and make such acts punishable by References(p. 844) appropriate penalties that take into account the grave nature of such offences;23 sign, ratify, and implement the international instruments listed in the Annex to the Algiers Convention;24 and reinforce interactions between the different institutional stakeholders involved in preventing and combating terrorism. The states are particularly asked to implement legislative and judicial measures aimed at expediting the investigation and prosecution of perpetrators of terrorist acts.25
In practice, given the complexity of the legal issues involved in domesticating international treaty provisions into national legal systems, the financial implications of making changes to legislation (setting up new logistics for the police, customs, and other such bodies, training security service personnel, etc) and above all the unpreparedness of local justice to meet the challenges of terrorism, states are struggling to harmonize their national laws with the Algiers Convention and thereby to enable those organizations and individuals wishing to use the continental treaty to do so immediately and effectively.
This is the most significant aspect of the mechanism to combat terrorism set in place by the Algiers Convention, to the extent that it establishes a mechanism quite similar to the concept of ‘universal jurisdiction’ created by the UN Convention against Torture 1984. In particular, each State Party has jurisdiction to try the perpetrator of a terrorist act if: the perpetrator of the act is on its territory;26 the act is committed on its territory;27 the act is committed against one of its nationals;28 or such jurisdiction is already enshrined by international law.29 Consequently, in the event that a state deems itself unable or unwilling to try the perpetrator of an act of terrorism committed in another state, it is bound to extradite the perpetrator to the victim state upon its request30 in keeping with the terms of the Algiers Convention.31
States Parties apply their national legislation, with all the aforementioned legal issues and challenges, when they review requests. They have the option, on depositing their instrument of ratification or accession, of notifying the African Union (AU) of References(p. 845) the grounds on which extradition may not be granted,32 the idea being to facilitate systematic extradition to the state where the act was committed and to ensure that ‘political motivation’ will not be used to justify the rejection of requests for the extradition of persons suspected of having committed terrorist acts.33
Upon agreeing to extradite, States Parties undertake to ‘seize and transmit all funds and related materials purportedly used in the commission of the terrorist act to the requesting State’.34 However, the diversity of the legal traditions—and thus the legal procedures—on the continent will make the implementation of this principle very difficult.
In principle, according to the Algiers Convention, the measures implemented by the States Parties in the framework of the fight against terrorism should comply with ‘the general principles of international law, in particular the principles of international humanitarian law, as well as the African Charter on Human and Peoples’ Rights’35 to which all African states have acceded. This principle is also regularly highlighted by international institutions concerned with the scrupulous observance of human rights, such as the UN Security Council, which calls upon UN Member States to ensure that all measures taken to combat terrorism are ‘in accordance with international law, in particular international human rights, refugee, and humanitarian law’.36
In the aftermath of the attacks of 2001, a Protocol to the OAU Convention was adopted37 during a meeting that took place in Dakar, Senegal. Its purpose is to complement and reinforce the implementation of the Algiers Convention, and above all to give force to Article 3(d) Protocol Relating to the Establishment of the References(p. 846) Peace and Security Council (PSC) of the African Union.38 In this new text,39 not only was the protection of fundamental rights made an essential part of the fight against terrorism, but additionally a mechanism was set up for the implementation of the Convention. In particular, States Parties undertake, inter alia, to: protect the fundamental rights of their populations against all acts of terrorism; appoint national focal points in order to facilitate exchanges and rapid sharing of information on terrorist groups and activities at regional, continental, and international levels; and submit annual reports on the implementation of the Algiers Convention.40 The PSC has institutional relations with the ACHPR41 and is expected to act in conformity with the fundamental principles of the AU.42
Upon the entry into force of the Algiers Convention, several African states implemented the necessary legislative and administrative measures in order to become more actively engaged and effective in their participation in the fight against terrorism on the continent. The process was further accelerated following the passing of Resolution 1373 (2001)43 by the UN Security Council, as endorsed by the appeal made to AU Member States, in November 2001, by the Central Organ of the OAU Mechanism for Conflict Prevention, Management and Resolution for them to ensure follow-up and effective implementation of the above mentioned Resolution.44
In light of its mandatory nature and the obligations it imposed on inter alia African states, the end result of Security Council Resolution 1373 was that states were forced to adopt laws on the fight against terrorism, but that these often did not adequately reflect their human rights obligations, not assisted by the fact that the Resolution itself made very little reference to international human rights law.45 Accordingly, in the race to adopt counter-terrorism measures, states often granted very broad administrative, regulatory, and even legislative powers to national executive authorities, and implemented measures which restricted the exercise of fundamental References(p. 847) freedoms, thereby creating problems of their compatibility with the African Charter.
With respect to the former, the scope of the administrative and legal measures varied according to whether the state was directly concerned with terrorism, or not. Thus, in countries that had experienced terrorist attacks, emphasis was put above all else on strengthening those measures already implemented before the Algiers Convention took effect. In particular, such states, in breach of their international human rights commitments, redefined terrorist acts in domestic law in order to align them with the more ambiguous provisions of the Algiers Convention.46 For example, they introduced new legislation which repressed activities frequently associated with terrorism (drugs, money laundering, and arms trafficking),47 and tightened controls over the movements of persons by introducing restrictions on access to their territory by nationals of countries where terrorists attacks have taken place.48
In other countries, namely those which did not have direct experience of terrorist activities, governments merely ratified the international treaties listed in the Annex to the Algiers Convention;49 created structures to coordinate activities to prevent and combat terrorism;50 and reviewed their regulations on the entrance and stay of foreigners on their territory,51 or the extradition of persons suspected of terrorist activities. These measures often had the effect of weakening the legal guarantees ordinarily granted to people under such circumstances.52
Furthermore, some states have implemented unilateral measures regarding presumed perpetrators of terrorist acts, for purely political reasons. Thus, for example, a North African national, apprehended in a West African country for his membership in a prohibited Islamic organization and involvement in the manufacture of bombs used for terrorist purposes, was secretly handed over to the authorities of that country in August 2001, due to the good relations between the two states.53 Two years previously, the South African Government had handed over to the US authorities an East African national suspected of having participated in an attack using explosives against the latter’s diplomatic representation without going through the correct extradition procedures. This zealous gesture led to South Africa’s Government References(p. 848) being condemned by its own Constitutional Court for violating its own national constitution.54 One East African country was even guilty of extraditing its own nationals to a neighbouring country in the name of the fight against terrorism.55 It is important to recall, in this regard, the position of the UN Working Group on Arbitrary Detention in the case of Alvarez Machaín (United States of America), in which the Working Group considered such acts for apparent purposes of justice in defiance of extradition agreements to constitute not only kidnapping, but also a serious form of arbitrary detention.56
A brief review of the different measures implemented by African states to combat terrorism reveals considerable infringements and denials of human rights, despite the fact that upholding human rights should lie at the very core of the fight against terrorism. Principles of especial concern here in terms of the compatibility of these measures with human rights obligations include respect for the right to life, the principle of legality, the rules governing detention under remand, the right to a fair trial, the right to asylum and non-refoulement, and freedom of expression and association, an overview of which is given here.
The obligation placed on states to describe acts of terrorism as crimes in their legislation and to make them ‘punishable by appropriate penalties that take into account the grave nature of such offences’57 has prompted those who seek to prove their wholehearted commitment to the fight against terrorism to impose the death sentence on any convicted perpetrators of such acts.58 Yet the right not to be arbitrarily deprived of life is universally recognized and protected,59 most notably by the References(p. 849) African Charter60 and the Constitutive Act of the AU.61 This right suffers no exceptions in international human rights law. As pointed out by the UN Human Rights Committee (HRC), it is the ‘supreme right to which no exception is authorized, even in case of exceptional danger to the public…. It is the foundation for all other human rights.’62
While capital punishment is not prohibited per se by international law, it may only be imposed within strict limitations and under stringent conditions;63 any failure to do so constitutes a violation of the right not to be arbitrarily deprived of life. In particular, it should be stressed that the imposition of capital punishment by bodies that do not meet the criteria of a competent, independent, impartial court pre-established by law, and/or by proceedings that do not comply with the standards and guarantees of a fair and equitable trial, constitutes summary execution.64 Indeed, the ACHPR has lately expressed concern that ‘some State Parties to the African Charter on Human and Peoples’ Rights apply the death penalty under conditions not respectful of the right to a fair trial guaranteed under the African Charter on Human and Peoples’ Rights’.65
The principles of legality and the primacy of law are inherent to human rights.66 According to these principles, all measures implemented by states in the fight against terrorism must have a definite legal basis (generally, a foundation in law). In addition, any restrictions they impose on rights and freedoms must be very clearly defined and be legitimate, necessary, and proportionate to the end pursued. However, the legislative and other measures implemented by many African states have failed to respect those requirements.67
References(p. 850) 4.3. The Principle of Legality with Respect to Crimes and Offences
This principle is universally recognized by human rights treaties.68 It means that the acts described by the law as criminal offences must be strictly defined, without doubt or ambiguity.69 The principle of nullum crimen sine lege, nulla poena also means that national or international criminal law may not be applied retroactively. Corollaries to this principle include the principle of restrictive interpretation of criminal law and the prohibition of extension by analogy.70 Thus, legal definitions that are vague, ‘nebulous’, or unspecific, or that make it possible to criminalize acts that are legitimate and/or permitted in the eyes of international law, are against international human rights law and the ‘general conditions prescribed by international law’.71
[A]ny use of force or violence or any threat or intimidation to which the perpetrator resorts in order to carry out an individual or collective criminal plan aimed at disturbing the peace or jeopardizing the safety and security of society and which is of such nature as to harm or create fear in persons or imperil their lives, freedoms or security; harm the environment; damage or take possession of communications; prevent or impede the public authorities in the performance of their work; or thwart the application of the Constitution or of laws or regulations.73
Such a definition is sufficiently vague to ensure, according to the leaders of the country themselves, ‘that the objectives sought in dealing with the phenomenon of terrorism and its forms, means, etc., were attained’.74 In other words, it is the sort of definition that enables the security forces of the country to act in total ‘legality’, even if their acts are in defiance of human rights. Furthermore, this provision coexisted References(p. 851) with a law on states of emergency that allowed public authorities to put out a warrant for the arrest of any person who was deemed to pose a threat to public peace and security, whereas the domestic constitution stipulated that arrest may only be consequential upon the commission of an offence. This situation prompted the HRC to criticize that country severely during a review of one of its periodic reports, and to ask the authorities to review the wording of the country’s legislation on terrorism.75
In punishing ‘terrorist’ crimes, African states are under an obligation to respect scrupulously international and regional norms regarding the deprivation of liberty, humane treatment, and the legal security of persons.76 The importance of respecting standards pertaining to arrests and detention has been underlined in the ACHPR’s Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa. Specifically, they state that neither the odious nor the serious nature of a crime of any kind may justify derogation, because ‘in contrast to other international human rights instruments, the African Charter does not contain a derogation clause’.77
Although this right, prescribed in Article 10 International Covenant on Civil and Political Rights (ICCPR), is not separately mentioned in the list of non-derogable rights in Article 4(2) ICCPR, the HRC has indicated that it is non-derogable in practice as a norm of general international law. More specifically here it has stated that the combined effect of Articles 7 (prohibition against torture et al) and 10(b) is that ‘[t]he prohibitions against taking of hostages, abductions or unacknowledged detention are not subject to derogation. The absolute nature of these References(p. 852) prohibitions, even in times of emergency, is justified by their status as norms of general international law.’78
[I]f so-called preventive detention is used, for reasons of public security, it must be controlled by these same provisions, i.e. it must not be arbitrary, and must be based on grounds and procedures established by law (para 1), information of the reasons must be given (para 2) and court control of the detention must be available (para 4) as well as compensation in the case of a breach (para 5). And if, in addition, criminal charges are brought in such cases, the full protection of article 9 (2) and (3), as well as article 14, must also be granted.80
It is also important to point out that any person deprived of liberty must be held in an officially recognized place of detention and a register of all persons deprived of liberty must be kept in every place of detention.81 Regarding communications between persons deprived of their liberty and their lawyers, the ACHPR has stipulated that they must have access to ‘the necessary facilities’ to communicate with their lawyers, families, and friends.82
The existence of safeguards, and particularly remedies such as habeas corpus, is extremely important.83 For it is generally at the time of arrest and preliminary investigation that presumed perpetrators of terrorist acts are exposed to risks of torture, inhuman, and degrading treatment, or sometimes even disappear. However, in many countries, rules governing police custody and temporary detention are in References(p. 853) infringement of the norms established by human rights treaties. For instance, in Algeria, the Public Prosecutor may, for the purposes of investigating an offence described as a terrorist act, keep a suspect in police custody for 12 days during which he or she has no outside contact.84 Similarly, an investigating judge may extend the temporary detention measure of the same suspect,85 which normally lasts four months, up to five times whereas the normal rule in criminal cases is that if can only be extended twice.86 In Egypt the law on the state of emergency authorizes detention of any suspect without charge for a period of at least 30 days, which may be indefinite if the judge deems it necessary for the purposes of the investigation.87 A further example is of a bill on terrorism in one southern Africa country which stipulates that a person may be held for interrogation for a period not exceeding 14 days, during which he or she is completely isolated from the outside world.88 These long periods of police custody, detention, and potential to be held incommunicado do not bode well for human rights compliance, and pose further problems with regard to respecting the standards of fair trial.
Aside from the issue of access to judges reviewed above, the principal problems posed in relation to the right to a fair trial involve competent, independent, and impartial courts to hear terrorist cases and court procedure. According to the ACHPR, ‘[i]n the determination of any criminal charge against a person, or of a person’s rights and obligations, everyone shall be entitled to a fair and public hearing by a legally constituted competent, independent and impartial judicial body’.89 Furthermore, the HRC has declared that even in times of war or states of emergency ‘only a court of law may try and convict a person for a criminal offence’,90 and that the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception.91
Nevertheless, in many countries, due to the authorities’ desire to give such cases special treatment, terrorism cases are placed under the jurisdiction of special courts or military courts. In Sudan, for instance, the anti-terrorist law grants the President of the Supreme Court the power to create one or more anti-terrorist courts whose References(p. 854) rules of procedure are determined after consultation with the Minister of Justice.92 Proceedings and investigations before this Court are conducted by the Minister of Justice via the ‘terrorism combating bureau’,93 and sentences can only be executed with the express approval of the President of the Republic.94 In Egypt, according to its law of 1981 on states of emergency, trials for acts of terrorism are conducted in military courts whose members are military force members appointed by the Minister of Defence. These courts may therefore try civilians, and appeals against their decisions are reviewed by military courts of appeal whose decisions need to be confirmed by the President of the Republic in person.95
Such practices are in violation of international norms, not only those of Article 14 ICCPR on the right to fair trial, but also of inter alia Articles 7 and 26 African Charter, as well as the considerable body of case law of the ACHPR on the subject.96 The latter has clearly stated that ‘[t]he only purpose of Military Courts shall be to determine offences of a purely military nature committed by military personnel (and they) should not in any circumstances whatsoever have jurisdiction over civilians’.97
Regarding court procedure, many laws also grant full freedom to the authorities to establish expeditious or special procedures that pay little heed to the rights of the accused. For instance, according to the law of one Indian Ocean state on the prevention of terrorism, the trial of a presumed perpetrator of a terrorist act may be closed to the public and the judge has the power to exclude any person from the hearings, including the legal representatives of the accused.98
[T]he arguments of national security and necessity have been supplemented by the argument of the fight against terrorism, which is more and more frequently resorted to by the authorities in many countries to infringe—through, inter alia, the adoption of restrictive laws, arrest, detention, censorship, bans, surveillance of and restrictions on publications or the use of the Internet—the right to freedom of opinion and expression, in particular for journalists, members of political opposition groups and parties and human rights defenders.99
In many African countries, reporting or publishing information on cases involving terrorism can cause serious problems. In Uganda, anyone who publishes information defending terrorism is subject to the death penalty and the law equates the broadcasting of any information on the activities of groups identified by the public authorities as terrorists with defence of terrorism.100 Additionally, it grants the Minister of the Interior and the security forces broad powers to investigate any information on terrorist organizations provided by the press, ranging from confiscation of working tools, to the tapping of journalists’ telephones, not to mention opening suspects’ mail.
The different international instruments concerning refugees101 exclude the perpetrators of certain acts, including terrorist acts,102 from the right of asylum and its accompanying legal protections. In the current discussion, the right of asylum raises two issues of particular interest.103
References(p. 856) The first, which was evoked by the UN High Commissioner on International Protection in his ‘Note on International Protection’ addressed to the UN High Commissioner for Refugees (UNHCR),104 involves the vague and imprecise definitions of the offence of terrorism found in regional legal instruments. The High Commissioner stipulated that the UNHCR recommends ‘the inclusion of precise definitions in such instruments and avoidance of any unwarranted linkages between asylum-seekers/refugees and terrorists’.105 He further noted that, if definitions are too broad and vague, ‘there is a risk that the “terrorist” label might be abused for political ends, for example to criminalize legitimate activities of political opponents, in a manner amounting to persecution’.106
The second problem involves the legal assimilation per se of a political offence with a terrorist crime. Since the conventions on refugees apply to so-called political offences,107 many countries have removed political offences from their national criminal laws and assimilated them with crimes of terrorism. At the regional level, Article 1 Algiers Convention defines a political offence as a form of terrorist offence. It is without doubt that every state has the right to defend itself and, consequently, to take the necessary measures to guarantee its own security and integrity. In this framework, the state has the right to criminalize behaviours that endanger its security and integrity. Nevertheless, the state is also bound to comply with certain principles, including those of international law and criminal law. Labelling as ‘terrorist crimes’ behaviours that actually pertain to other types of offences—such as political offences—but which have no relation to terrorism or terrorist acts is a violation of the principle of the legality of offences. This is particularly true when all types of political offences—whether or not violence is involved, and whether or not a terrorist act took place—are legally assimilated with the crimes of terrorism.
This has serious consequences for the legal framework of political offences, particularly in terms of extradition, asylum, and applicable punishments and amnesties. In particular, cooperation between states, especially where extradition is concerned, plays an important role in the prosecution of perpetrators of terrorist acts. However, states often have recourse to deportation and/or refoulement measures in an attempt to get around extradition procedures, under conditions in violation of the stipulations of international law.
In some regions of the African continent, there is even a ‘tradition’ of extradition of criminals completely outside the law, on the pretext that the legal procedures are References(p. 857) long and sometimes ineffective.108 In other African countries,109 mass expulsions or deportations of terrorist suspects are practised despite being prohibited by the African Charter.110 Others invoke the non-political nature of the alleged crimes in order to ignore the principle of non-refoulement.111 Such practices are contrary to the jurisprudence of inter alia the UN human rights bodies. More specifically, the HRC has stipulated that ‘[b]efore expelling an alien, the State party should provide him or her with sufficient safeguards and an effective remedy, in conformity with article 13 of the Covenant. The State party is urged to consider the adoption of legislation governing the expulsion of aliens, which should be consistent with the principle of non-refoulement.’112 The UN Committee against Torture (UNCAT) has adopted a similar approach. In particular, whilst recognizing the need for close cooperation between states in the fight against crime and for effective measures to be agreed upon for that purpose, the UNCAT has stated that such measures must fully respect the rights and fundamental freedoms of the individuals concerned.113
Importantly, the correct operation of the principle of non-refoulement is not synonymous with affording terrorists impunity. For, although the conventions on terrorism do not establish an absolute obligation to extradite, they do include the principle of aut dedere aut judicare. Therefore, within this framework, a presumed perpetrator of a terrorist act who is on the territory of a third party state, but who, if he or she were to be extradited, would face serious risks of torture or another serious human rights violation, may be prosecuted and tried by the courts of that third party state.
5. Towards a New Regional Approach to Protecting Human Rights in the African Framework of the Fight Against Terrorism
At the outcome of one of its recent meetings, the PSC, emphasizing ‘the imperative need (for African States), in the fight against terrorism, to uphold the highest standards in terms of human rights and international humanitarian law’, asked the AU Commission ‘to work closely with the African Commission on Human and People’s References(p. 858) Rights and other stakeholders to promote and ensure the respect for human rights and international humanitarian law, while preventing and combating terrorism’.114
This appeal seems to suggest that there should be greater attention, or greater involvement, on the part of the ACHPR with respect to the policies developed by African states to prevent and combat terrorism. Additionally, this should be combined with the coordination of the actions of the various regional organizations and institutions involved in preventing and combating terrorism and protecting human rights, including the PSC, the AU Commission, the Regional Economic Communities (RECs),115 and civil society organizations, in order to influence and contribute to the emergence of new strategies in the fight against terrorism that are more respectful of human life and dignity.
Created by the African Charter, the ACHPR is the leading institution on the continent in charge of the promotion and protection of human rights.116 It comprises 11 members chosen by the Heads of State and Government of the AU ‘for their high morality, integrity, [and] impartiality’117 and a Secretariat based in Banjul, The Gambia, and meets twice a year in ordinary meetings to discuss human rights issues in Africa.
The ACHPR has been given responsibility for four essential functions in the area of human rights in Africa:
(1) The promotion of human rights, notably by conducting studies, research, and/or organizing seminars on the problems encountered by African States in the implementation of their conventional obligations, by formulating and laying down ‘principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African Governments may base their legislations [and by cooperating] with other African and international institutions concerned with the promotion and protection of human and peoples’ rights’.118
(2) Protection of human rights by reviewing complaints by states or individuals relating to any violations of rights protected by the African Charter.119
(3) Interpretation of the provisions of the Charter at the request of the organs or institutions of the AU and the organizations recognized thereby.120
(4) Performance of any other task as requested by the AU.121
In its 25 year history, the ACHPR has so far fulfilled this mission with energy and realism, as imagined by the late Keba Mbaye,122 the principal author of the African Charter. Indeed, it has demonstrated since its inception a tremendous capacity for adapting to the changing realities of the continent, which has enabled it to create a number of special mechanisms123—which are additional to those procedures established by the African Charter124—for dealing with the sometimes highly complex situations prevailing on the continent. It has also created a wealth of skills in the establishment and sustainment of an ongoing dialogue with its many partners, including the States Parties, national human rights institutions, human rights organizations, and public and private international organizations, which has enabled it to benefit from their intellectual and financial contributions. It is due to this cooperation that it has been able to take an interest in the issue of the protection of human rights in the framework of the fight against terrorism.
Furthermore, it has demonstrated creativity in its dynamic and cross-referenced interpretation of the provisions of the African Charter. For example, the adoption of the Principles and Guidelines on the Right to a Fair Trial, the Robben Island Guidelines on Torture, and above all, its clarifications of the meaning of Articles 1 and 27(2) African Charter on the obligations of the States Parties and limitation clauses, are illustrative of the ACHPR’s innovative approach.125
Additionally, it is evident that the ACHPR possesses a clear will to hold the continent to the standards of the great human rights family, particularly by referring very frequently to Articles 60 and 61 African Charter, which grant it the option, in its activities, to ‘draw inspiration from international law on human and peoples’ rights, particularly from the provisions of various African instruments on human and peoples’ rights, … [and] other instruments adopted by the United Nations and References(p. 860) by African countries in the field of human and peoples’ rights’, and to ‘take into consideration … customs generally accepted as law, general principles of law recognized by African states as well as legal precedents and doctrine’ respectively.
More specifically, the Commission only began to become actively engaged in terrorism matters one year after the events of 9/11. Prior to that, it had very rarely been called upon to deal with cases involving terrorism.126 This, however, did not prevent those on the continent who did battle against the negative side effects of the fight against terrorism from taking advantage of its wealth of case law,127 which could be wielded equally against the anti-terrorism measures taken by states in disregard of regional human rights obligations and the principles of international law. For instance, in considering cases involving derogations and the limitations of rights recognized under the African Charter, the ACHPR has established a number of principles and rules intended to guide the actions of those in charge of enforcing the provisions of the African Charter in the States Parties which apply equally to countering terrorist threats and activities.
The first is that the fact the African Charter contains no derogation clause should be considered an ‘expression of the principle that the restriction of human rights is not a solution to national difficulties: the legitimate exercise of human rights does not pose dangers to a democratic state governed by the rule of law’.128 Consequently, ‘even a civil war in [for example] Chad cannot be used as an excuse by the State for violating or permitting violations of rights in the African Charter’.129 In the view of the ACHPR, if, by some unlikely chance, it is necessary for a State Party to the African Charter to restrict rights, the restriction should be ‘as minimal as possible and not undermine fundamental rights guaranteed under international law’.130 In any case, ‘[t]o allow national law to have precedent over the international law of the Charter would defeat the purpose of the rights and freedoms enshrined in the Charter. International human rights standards must always prevail over contradictory References(p. 861) national law. Any limitation on the rights of the Charter must be in conformity with the provisions of the Charter.’131
Another guiding principle is that the only limitations on rights and freedoms through derogations that find grace in the eyes of the ACHPR are those contained in Article 27(2) African Charter, namely that these must ‘be founded in a legitimate state interest and the evils of limitations of rights must be strictly proportionate with and absolutely necessary for the advantages which are to be obtained. A limitation may never have as a consequence that the right itself becomes illusory.’132 Similarly, the Commission has found that the African Charter imposes an obligation of results on the States Parties in the enforcement of its provisions, to the extent that they are ‘obliged to ensure the effective protection of human rights throughout (their) territory’.133
When it was questioned by human rights organizations regarding the behaviours of certain States Parties in violation of the rights and freedoms contained in the African Charter, the ACHPR did not hesitate to convene a debate on the subject amongst its different partners, which took place during its 37th ordinary session and at the outcome of which it adopted a resolution that clearly stated its views and established a framework and modalities for intervention by the ACHPR on the issue. More specifically, after recognizing that ‘the acts, methods and practices of terrorism in all its forms and manifestations (were clearly) aimed at the destruction of human rights, fundamental liberties and democracy’, it stated its deep concern regarding the ‘legislations, measures and practices of States Parties that may be inconsistent with the provisions of the African Charter on Human and Peoples’ Rights’134 which could, in the long run, prove to be extremely counterproductive for the latter.
… should ensure that the measures taken to combat terrorism fully comply with their obligations under the African Charter on Human and Peoples’ Rights and other international human rights treaties, including the right to life, the prohibition of arbitrary arrests and detention, the right to a fair hearing, the prohibition of torture and other cruel, inhuman and degrading penalties and treatment and the right to seek asylum135
In doing so, the Commission decided to focus its other special procedures and mechanisms on measures aimed at preventing and combating terrorism ‘in order to References(p. 862) promote a coherent approach’ with regard to the continental system of defence of human rights in such matters; and to organize, as soon as possible, a meeting of experts to review more closely the protection of human rights and the rule of law within the framework of the fight against terrorism in Africa.
With respect to the contribution of the special mechanisms of the ACHPR to the fight against terrorism, according to its Rules of Procedure the ACHPR may create subsidiary mechanisms such as special rapporteurs, committees,136 and working groups.137 The system thus established is very flexible, because it is up to the Commission itself to determine whether such special mechanisms should be created and, once a decision is taken, to define their mandate and terms of reference as well as their membership before proceeding with the appointment of their members.138 After it is set up, each special mechanism carries out its mission with support from the Secretariat of the Commission and submits a report on its work to the Commission at each ordinary session of the continental institution.139 For example, recently, following a series of research and awareness missions on freedom of speech across the continent, the Special Rapporteur on freedom of speech and access to information suggested that the Commission draft a model law on freedom of information in Africa aimed at better facilitating the integration of the African Charter within the domestic legal systems of African states, and enabling the more effective evaluation of their performances in terms of freedom of speech and information, in particular through the African Peer Review Mechanism of the AU’s New Partnership for Africa’s Development (NEPAD).140 The matter will be discussed in greater detail and, it is hoped, progressed during forthcoming meetings of the ACHPR.
The Commission has already identified a number of important human rights issues requiring its especial attention in the fight against terrorism. These include the right to life; the prohibition of arbitrary arrests and detention; the right to a fair hearing; the prohibition of torture and other cruel, inhuman, and degrading penalties and References(p. 863) treatment; and the right to seek asylum.141 Consequently, it has already devoted much in-depth reflection or taken very clear decisions on these issues.142 Additionally, those special mechanisms already in place could easily help the Commission to ‘formulate and lay down (other) principles and rules … upon which African Governments may base their legislations’143 with a view to solving legal problems associated with the enforcement of the Algiers Convention as previously mentioned, in particular those linked to the broad definition of terrorist acts which erode fundamental human rights protections.
Concretely, the Commission could review the mandates of some of its special rapporteurs,144 the Working Group on the Death Penalty, and the Committee on the Implementation of the Robben Island Guidelines, so that they could deal with some of the practical aspects of the fight led by States Parties against terrorism. For example, the Commission could augment the mandate of its Special Rapporteur on Refugees, Asylum Seekers, Migrants, and Internally Displaced Persons in Africa, whose mandate includes assisting ‘Member States of the African Union to develop appropriate policies, regulations and laws for the effective protection of refugees, asylum seekers and internally displaced persons in Africa’.145 More specifically the mandate could include the review, during visits to States Parties, of all domestic laws relating to the fight against terrorism in order to identify any aspects that may be incompatible with the enforcement of the provisions of the African Charter as interpreted by the ACHPR. Furthermore, the Special Rapporteur could make suggestions to national authorities on ways of harmonizing their domestic legislation and policies with those principles and guidelines aimed at effectively protecting the rights of refugees, asylum seekers, migrants, and displaced persons. Such a process References(p. 864) could also serve to address the difficult issue of non-refoulement of refugees or asylum seekers in the framework of the fight against terrorism.
Similarly, if the ACHPR decided to include the oversight of national laws in the fight against terrorism in its mandate, the Committee for the Prevention of Torture in Africa, which is responsible for the enforcement of the Robben Island Guidelines, could become involved in the establishment of legislative measures to prevent the torture of terrorist suspects during police custody or remand, as well as mechanisms to monitor local compliance with the continental guidelines and principles, focusing especially on those countries where this is a recurring problem. In order to overcome some of the administrative barriers the Commission has encountered in its work on such issues, it has recently adopted the practice of appointing representatives of its special mechanisms within its delegations to such countries, and developing a more coordinated approach to its interventions in any country.
The mechanisms could also take advantage of the sessions in which the periodic reports of the States Parties146 are reviewed in order to conduct an in-depth analysis of the different aspects of their national responses in the fight against terrorism, and to establish genuine dialogue with the States Parties on the measures to be taken to comply with both the spirit and letter of the African Charter. The current practice is that, following this exercise, the ACHPR writes concluding observations the chief purpose of which is to guide the governmental officials of the States Parties concerned in the measures necessary to end any violations observed, and to take appropriate measures to account better for human rights in the framework of the fight against terrorism. The Commission’s concluding observations of its review of the second report by the Arab Republic of Egypt is a case in point. After expressing its concern over ‘alleged arbitrary declarations of curfews that infringe on the freedom of movement and the situation of alleged detainees/prisoners of conscience especially the Muslim Brotherhood group in Egypt (and) the independence of the Judiciary’,147 it strongly recommended to the Egyptian authorities that they not only enforce the Robben Island Guidelines and ensure their broad dissemination within the security forces,148 but above all ‘ensure that measures taken to fight terror are taken in conformity with human rights standards set forth by relevant human rights instruments ratified (by the Arab Republic of Egypt), including the African Charter’.149
References(p. 865) Finally, the information gathered during these exercises could be recorded in the annual report submitted by the ACHPR to the Conference of Heads of State and Government of the African Union.150 In the recent past, the meetings held to review ACHPR reports have been the scene of stormy debates on state measures and practices in violation of the rights and freedoms protected by the African Charter, and the AU has even been obliged to intercede between the ACHPR and the States Parties to the African Charter, notably asking the latter to ‘enter into contact with the Member States concerned in order to verify the events reported and submit a new report’151 to the Executive Council.
6. The Necessity of Establishing a Common Approach to Protecting Human Rights in the Fight Against Terrorism on the African Continent
The complexity of the legal problems raised by the fight against terrorism as explained above can only encourage the ACHPR actively to pursue a more integrated approach to human rights compliance by the various continental and national institutions. For example, the Commission is seeking to promote ‘dialogue among human rights judges’ on the continent with a view to ‘exploring ways and means of ensuring cooperation and coordination, including the sharing of information and expertise, amongst all continental and sub-regional judicial and quasi-judicial bodies, responsible for the promotion and protection of human rights in Africa’.152
Such dialogue was already provided for in certain texts of the AU, such as the Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights (ACtHPR or Court)153 which clearly states that the Court was set in place to ‘complement and reinforce the functions of the African Commission on Human and Peoples’ Rights’.154 Long opposed by African states, the idea of the creation of an African Court on Human Rights resurfaced following the References(p. 866) major political changes that occurred in Africa and around the world in the early 1990s. Eventually, in 1994, the necessary political agreement was obtained. The Court’s mandate was to include: the guarantee of better human rights protection; support of the efforts of the ACHPR, which already played a considerable role at that time in the promotion of human rights; and the facilitation of the achievement of the objectives defined by the African Charter.155
Composed of 11 judges elected for a term of six years, renewable once, who are to be ‘of high moral character and of recognized practical, judicial or academic competence and experience in the field of human and peoples’ rights’, the Court has contentious jurisdiction over all disputes relating to ‘the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned’156 and an advisory capacity to provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments, provided that ‘the subject matter of the opinion is not related to a matter being examined by the Commission’.157
Entitlement to submit cases to the Court remains one of the most controversial issues. Although the ACHPR, the States Parties, and African inter-governmental organizations have a right of direct access to the Court, it may only be referred to by individuals and non-governmental organizations (NGOs) under two conditions:158 that the state against which the complaint is lodged makes a declaration accepting the competence of the Court to receive the case;159 and, for NGOs, that they have observer status before the ACHPR.
In terms of its proceedings, these are of an exclusively judicial nature and the Court may request the opinion of the ACHPR on the admissibility of an individual case, or ask it to review its admissibility or transfer the matter to the Commission outright.160 The Court may also order any provisional measures as it deems necessary in cases of urgency,161 and its decisions are final and not subject to appeal.162 In cases where the Court finds that there has been a violation of any human rights, it makes appropriate orders to remedy the violation, including the payment of compensation. The judgments of the Court are then notified to the parties, to AU References(p. 867) Member States, and to the AU Commission and the Executive Council which monitors their enforcement. Only the Executive Council has that mandate.
Two aspects of the complementary roles of the ACHPR and the Court in their respective mandates to protect human rights warrant particular attention. The first of these involves a situation provided for under the Rules of Procedure of the ACHPR:163 when a State Party to the Protocol on the Court refuses to comply, within a three month deadline from the date of its receipt of a decision by the ACHPR, with recommendations issued by it to settle a case of human rights violation, the Commission may transfer the matter to the Court for review. The reconsideration of the case by the Court will not only enable the two institutions to cooperate with respect to the interpretation to be given to relevant provisions of the Charter on the fight against terrorism, but further and above all, will force the state in question, in the event of any finding against it of human rights violations, to make appropriate reparations to the victim(s).
The second aspect is that the Commission may ‘submit a communication before the Court against a State party if a situation that, in its view, constitutes one of serious or massive violations of human rights as provided for under Article 58 of the African Charter, has come to its attention’.164 This procedure allows the Commission to refer to the Court in cases of serious human rights violations, such as those that frequently take place in states in the aftermath of terrorist attacks.165 In fact, the ACHPR recently implemented this provision on 21 March 2011, by referring to the Court a complaint against Libya following the bombing of the city of Benghazi by the Libyan air forces after the popular uprising in the city, as well as the numerous arrests and detentions of persons who had demonstrated peacefully in major cities around the country.166
6.3. Recommendations for Establishing Constructive and Effective Dialogue between the Key Continental Players
More broadly, there is the need to disseminate information more effectively and share best practices relating to the decisions taken by the ACHPR, the African Court, the courts of justice of the RECs,167 and similar institutions, notably to References(p. 868) ‘facilitate a coherent human rights jurisprudence and approach’168 to the protection of human rights in the framework of the fight against terrorism. However, in order to be effective, it is essential that this more technical approach to the question of human rights protection in the framework of the fight against terrorism should be combined with ongoing, constructive dialogue with the political organs of the AU, the RECs, and African civil society.169
Built around the PSC, in light of its central position in the fight against terrorism in Africa, this dialogue could, at the present time, be organized in two principal ways: (1) through exchanges of relevant information on state practices; and (2) improved harmonization of national legislation with African treaties on the protection of human rights and the fight against terrorism. Exchanges of information could be organized, on the one hand, between AU Member States, the PSC, the RECs, and the Special Representative in charge of Counter-Terrorism Cooperation, who concurrently acts as the Director of the African Centre for the Study and Research on Terrorism; and on the other hand, between the PSC, the ACHPR, and civil society.
To date, AU Member States have undertaken to strengthen mutual exchanges of information on terrorist groups; to promote cooperation and mutual assistance in legal proceedings; to cooperate in conducting and exchanging studies and research on ways of combating terrorists acts; and to provide each other with mutual technical and operational assistance in the fight against terrorism.170 Additionally, since 2004, they have been bound to submit an annual report to the PSC on those measures taken by them as States Parties to the Algiers Convention in order to prevent and combat acts of terrorism.171
The RECs, as an important part of the overall security architecture of the AU,172 could play an essential role here in further strengthening African anti-terrorism mechanisms. In particular, they could create points of contact at the (sub-)regional level; coordinate actions with the AU Commission in the development of measures to prevent and combat terrorism; promote regional cooperation in the implementation of continental treaties on the fight against terrorism; harmonize and coordinate national measures for the prevention and combating of terrorism; share information on terrorist groups and good practices in the fight against terrorism; assist Member States in the implementation of their international commitments relating to the prevention and combating of terrorism; and report regularly to the Commission on regional actions to prevent and combat terrorism.
References(p. 869) More recently, the PSC decided to create, within the Council itself, a sub-committee on terrorism whose mandate would include, inter alia, ensuring the implementation of the relevant AU instruments and preparing, distributing, and regularly revising a list of persons, groups, and entities involved in terrorist acts on the continent.173 This sub-committee could be assisted by INTERPOL, which the Plan of Action calls upon for help in the areas of exchanging confidential information and training.
For its part, the ACHPR could exchange the ‘combating terrorism’ section of the regular reports submitted by AU Member States every two years174 and the final comments accompanying them with the PSC, the AU Commission through the Special Representative, and the focal points in the RECs. This would enable each of these political bodies to be made aware of the realities of the action taken by each Member State in the prevention and combating of terrorism, and the related recommendations of the ACHPR on how to ensure the effective protection of human rights in that context.
The PSC could also collaborate very closely with the ACHPR in the framework of the cooperative relationships provided for under Article 19 Protocol Relating to the Establishment of the PSC. Such an exchange would, above all, enable the Commission to implement fully its surveillance of African states’ compliance with their obligations in terms of human rights protection and, where necessary, to request the PSC to follow up on ‘the progress towards … protection of human rights and fundamental freedoms, respect for the sanctity of human life and international humanitarian law by Member States’.175
In this regard, the drafting of the model law on the prevention and combating of terrorism, in the framework of the implementation of the Plan of Action of 2002, constitutes an ideal avenue for helping Member States to harmonize their national legislations with their obligations under the terms of the Algiers Convention. When adopted by the AU, this model law will cover the following issues:176
(1) the establishment, in national legislation, of offences for all acts that AU Member States are to establish as criminal offences in compliance with the relevant conventions on terrorism and with Security Council Resolution 1373;
(2) the establishment of state jurisdictions over the crimes in question, and in the cases stipulated by the relevant treaties;
- References(p. 870)
The draft model law is expected to be tabled before the African Ministers of Justice for adoption in the course of 2011 before being submitted to the Heads of State and Government. It can only be deplored that, up to the present time, the ACHPR has not been closely associated with its drafting. Such collaboration would have made it possible to factor in the human rights dimension of the fight against terrorism, which is clearly called for in Article 21 Algiers Convention.
In the ‘war’ on terrorism, it seems that African states have yet to draw the line between their inherent right to self-defence and the need, at all times, ‘to promote and encourage democratic practices, good governance and the rule of law, protect human rights and fundamental freedoms, respect for the sanctity of human life and international humanitarian law’.177
When all is said and done, a clear awareness of the organs and institutions responsible for the protection of human rights and their responsibility in the framework of the fight against terrorism—especially the ACHPR and Court—combined with close collaboration between these entities and the mechanisms for the prevention and combating of that scourge, could contribute positively towards more effective enforcement of the Algiers Convention within continental Africa.
Although many states have taken advantage of the fight against terrorism to develop liberticidal legislations, this can be attributed in part to the delayed involvement of the human rights protection mechanisms in the continent’s strategy for the prevention and combating of terrorism. As suggested here, this trend could easily be reversed if the mechanisms wholeheartedly applied themselves to seeking a balance between combating the scourge of terrorism and protecting human rights on the continent, especially if they approached the regional and continental political authorities in order to raise the awareness of African policy-makers that the fight against terrorism cannot be carried out to the detriment of the protection of human life and dignity on a continent that has already suffered enough from the neglect of its political leadership in this respect.
References(p. 871) In addition to the recommendations already made earlier in the chapter, some further ones are made here as to how the essential rule of law framework may be further strengthened within the African continent:
(1) The ACHPR holds a key position in the ‘network’ of mechanisms for the protection of human rights in Africa, for which the African Charter grants it a very broad mandate. Therefore, the ACHPR should take immediate action to stipulate clearly AU Member State obligations regarding the implementation of the Algiers Convention, highlighting the rights of victims of terrorist acts and, above all, guiding the actions of all States Parties on these issues. The following future steps are therefore recommended:
• the adoption of Guidelines and Principles on the protection of human rights in the framework of the fight against terrorism in Africa;
• a review and strengthening of the mandates of the special mechanisms of the ACHPR in order to supervise the actions of all States Parties more effectively on these issues;
• the organization of regular meetings with the specialized organs of the AU to exchange information on the best practices to adopt in order to ensure the solid protection of human rights in the framework of the fight against terrorism;
• the organization of seminars for States Parties to identify and exchange best practices and measures in order to ensure their more effective enforcement of the African Charter, and better engagement with the African Court, regional courts, and similar institutions;
• the insertion of a section on the fight against terrorism in the Commission’s annual report to enable regular evaluation of the related actions of States Parties.
(2) For their part, individual African states should make efforts to ensure that the Algiers Convention and its Additional Protocol are fully integrated into their domestic legal systems; that the officials in charge of enforcing their legislation have a clear awareness of their obligations in terms of human rights protection in the framework of the fight against terrorism; and, above all, that they report regularly and accurately to human rights protection mechanisms on their practices in that regard. More concretely, states should:
• harmonize their legislations with the African Charter, the Algiers Convention and its Protocol, and all other human rights treaties they have ratified;
• add modules on the protection of human rights in the framework of the fight against terrorism to their training curricula of officials in charge of enforcing national legislation (inter alia security forces, magistrates, lawyers, and territorial administration officials);
• prepare a guide on human rights protection in the framework of the fight against terrorism, based on the Guidelines and Principles to be adopted by the ACHPR, for officials in charge of enforcing legislation;
• include in their regular reports to human rights protection bodies a section on the fight against terrorism, specifying all of the actions taken for that purpose;
4 These are, at continental level, the African Commission on Human and Peoples’ Rights (ACHPR), the African Committee of Experts on the Rights and Welfare of the Child, and the African Court on Human and Peoples’ Rights (ACtHPR); and, at the regional level, the Court of Justice of the Economic Community of West African States (ECOWAS/CEDEAO), the East African Court of Justice (EACJ), the Court of Justice of the Arab Maghreb Union (AMU), and the Court of Justice of the Common Market for Eastern and Southern Africa (COMESA).
5 See C Goredema and A Botha, ‘African Commitments to Combating Organized Crime and Terrorism: A Review of Eight NEPAD Countries’ (ISS, Pretoria 2005) 64 〈http://www.iss.co.za/pubs/Other/ahsi/Goredema_Botha/pt2chap8.pdf〉 accessed 12 August 2011.
6 See W Okumu and A Botha (eds), ‘Understanding Terrorism in Africa: Building Bridges and Overcoming the Gaps’ (ISS, Pretoria 2008) 33 〈http://www.issafrica.org/uploads/TERROBRIDGES1.PDF〉 accessed 6 June 2011.
7 These particularly include Al Qaeda in the Islamic Maghreb (AQIM), Al Shabaab, and Al Ittihad Al Lalamiyaa (AIAI). On this issue see the African Union (AU), ‘Report of the Chairperson of the Commission on Measures to Strengthen Cooperation in the Prevention and Combating of Terrorism in Africa’ (249th Meeting Peace and Security Council (PSC)) (22 November 2010) PSC/PR/2(CCXLIX) 2 (Report of Commission Chairperson to Strengthen Cooperation).
10 In particular, there have been extraditions of persons suspected of having perpetrated or participated in terrorist attacks in defiance of the most elementary rules of human rights protection in states such as South Africa, Tanzania, the Gambia, Kenya, and Nigeria. See further Okumu and Botha (n 6).
11 This section and the next one cover most of the elements contained in the conceptual document that the current author and the Director of Legal Affairs of the International Commission of Jurists prepared for the attention of the ACHPR by way of an introduction to the debate on the issue of terrorism and human rights organized by the latter during its 37th Ordinary Session in November/December 2005 in Banjul, the Gambia.
12 During this meeting, held in 1991, it was affirmed for the first time that: ‘The security of all Africans and their States as a whole is indispensable for stability, development and cooperation in Africa. This should be a sacred responsibility of all African States—individually and collectively—which must be exercised within the basic framework of the African Charter on Human and Peoples’ Rights and other relevant international instruments.’ See OAU Assembly of Heads of State and Government (African Economic Community), ‘Solemn Declaration on the Conference on Security, Stability, Development and Cooperation in Africa’ (CSSDCA) (10–12 July 2000) AHG/Decl. 4(XXXVI)) para 10(C) (Solemn Declaration).
13 OAU Assembly of Heads of State and Government, ‘Resolution of the Dakar Summit (1992) aimed at strengthening cooperation and coordination between Member States in order to combat the phenomenon of extremism’ (29 June–1 July 1992) AHG/Res. 213(XXVIII); OAU, ‘Declaration on the Code of Conduct for Inter-African Relations’ (13–15 June 1994) AHG-Decl. 3(XXX); ECOSOC, ‘Dakar Declaration on the Prevention and Control of Organized Transnational Crime and Corruption’ (29 August 1997) E/CN. 15/1998/6/Add. 1; Solemn Declaration (n 12).
15 H Boukrif, ‘Quelques Remarques et Observations sur la Convention de l’Organisation de l’Unité Africaine (OUA) sur la Prévention et la Répression du Terrorisme’ (1999) 11 Revue africaine de droit international et comparé 753 (author’s translation).
19 This principle, which applies equally to national standards and to incriminations contained in criminal law treaties, was reaffirmed as one of the general principles of criminal law by the Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) (ICC Statute). As pointed out by Professor Pierre-Marie Dupuy, nullum crimen sine lege is a principle of international criminal law with jus cogens character—H Ascencio, E Decaux, and A Pellet (eds), Droit International Pénal (Pedone, Paris 2000) 74. See also IACHR, ‘Report on Terrorism and Human Rights’ (22 October 2002) OAS/Ser. L/V/ll. 116, Doc 5 rev 1 corr para 222.
21 UN Commission on Human Rights (UNCHR), ‘Report of the Special Rapporteur on the Independence of Judges and Lawyers, Mr Param Cumaraswamy’ (19 February 1998) UN Doc E/CN. 4/1998/39/Add. 1 para 129 (Report of Special Rapporteur on Independence of Judges and Lawyers).
22 MA Ewi and A du Plessis, ‘Criminal Justice Responses to Terrorism in Africa: The Role of the African Union and Sub-Regional Organizations’, Chapter 36 of this volume.
25 Art 2(c) Algiers Convention. See also AU, ‘Plan of Action of the African Union High-Level Inter-Governmental Meeting on the Preventing and Combating of Terrorism in Africa’ (11–14 September 2002) Mtg/HLIG/Conv. Terror/Plan. (I) (AU Plan of Action), according to which ‘these measures should include issues such as the protection of witnesses, access to dockets and information, and special arrangements on detention and access to hearings’ (B(12)(a) 4).
32 Art 8(2) Algiers Convention. To date, only South Africa and Mozambique have provided the AU with detailed grounds for not extraditing a person to a State Party. According to the South Africans, extradition requests will not be honoured if ‘the person runs the risk of prosecution, sanction or rights violations in a country due to his or her gender, race, religion, nationality or political opinions (or if) the sanction of the crime for which extradition is requested is capital punishment unless guarantees are provided that capital punishment will not be applied in a specific case’. Mozambique, under art 103(3) of its Constitution of the Republic of Mozambique (1990, amended 2004), may not extradite its own nationals from its territory. On these issues, see further AU, ‘Decision on the Status of Signature and Ratification of OAU/AU Treaties’ (25 July 2010) EX.CL/605(XVII) 17.
38 The Protocol was adopted 9 July 2002 (PSC Protocol 2002). Art 3(d) states that the PSC is to ‘co-ordinate and harmonize continental efforts in the prevention and combating of international terrorism in all its aspects’.
54 Mohamed v President of the Republic of South Africa and others 2000 (3) Constitutional Court of South Africa 893, in J Cilliers and K Sturman (eds), ‘Africa and Terrorism; Joining the Global Campaign’, ISS Monograph series No 74 (Pretoria, July 2002) 〈http://www.iss.co.za/pgcontent.php?UID=1543〉 accessed 25 May 2011.
55 See Muslim Human Rights Forum, ‘Horn of Terror: An Updated Report of the US-led Mass Extraordinary Rendition of over 100 people from Kenya to Somalia, Ethiopia and Guantanamo Bay between January 2007 and August 2007 and Subsequent Counter-Terrorism Operations in Kenya’ (September 2008) 9.
59 See notably: Universal Declaration of Human Rights (adopted 10 December 1948) art 3; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) (ICCPR) art 6; American Convention on Human Rights 1969 (adopted 22 November 1969, entered into force 18 July 1978) (ACHR) art 4; and Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (adopted 4 November 1950, entered into force 3 September 1953) (ECHR) art 2.
64 It is explicitly stated in art 6 ICCPR that the death sentence may only be pronounced in keeping with the legislation in force at the time the crime was committed, and that it may not contradict the provisions of the Covenant. The procedural guarantees laid down by the Covenant must be upheld, including the right to a fair trial by an independent court, the presumption of innocence, minimum guarantees regarding defence, and the right to appeal to a higher jurisdiction.
68 Art 15 ICCPR; art 7 ECHR; art 9 ACHR; art 7 African Charter; and UNHRC, ‘Concluding Observations of the Human Rights Committee: Democratic People’s Republic of Korea’ (27 August 2001) UN Doc CCPR/CO/72/PRK para 14.
70 This principle and its corollaries apply both to national criminal law and to international criminal law. Thus, art 22(2) ICC Statute stipulates that: ‘The definition of a crime shall be strictly construed and shall not be extended by analogy’.
72 See, for example, concerns expressed by the UNHRC in ‘Concluding Comments of the Human Rights Committee: Algeria’ (18 August 1998) UN Doc CCPR/C/79/Add. 95 para 11; and ‘Concluding Comments of the Human Rights Committee: Egypt’ (9 August 1993) UN Doc CCPR/C/79/Add. 23 para 8. In some instances, the UNHRC has recommended the revision of particular legislation. See, for example, ‘Concluding Comments of the Human Rights Committee: Syrian Arab Republic’ (24 April 2001) UN Doc CCPR/CO/71/SYR para 24.
75 In particular, the UNHRC stated that: ‘… recognising that the government has a duty to combat terrorism, the Committee considers the measures taken to do so should not prejudice the enjoyment of the fundamental rights enshrined in the Covenant, in particular, its articles 6, 7 and 9. The Committee is particularly disturbed by the adoption in 1992 of law No 97 on terrorism which contains provisions contrary to articles 6 and 15 of the Covenant. The definition of terrorism contained in that law is so broad that it encompasses a wide range of acts of differing gravity. The Committee is of the opinion that the definition in question should be reviewed … and stated much more precisely especially in view of the fact that it enlarges the number of offences which are punishable with the death penalty.’ See UNHRC, ‘Comments on Egypt’ (9 August 1993) UN Doc CCPR/C/79/Add. 23 para 8.
76 See, for example, arts 2, 4, 9–10 ICCPR; art 15 CAT; arts 4–6 African Charter. See further on these issues S Casale, ‘Treatment in Detention’, Chapter 19 of this volume.
77 See ACHPR, Media Rights Agenda and Constitutional Rights Projects v Nigeria (Communication Nos 105/93, 128/94, and 152/96) Decision of 31 October 1993 para 67. The African Commission further added in its decision that ‘limitations on the rights and freedoms enshrined in the Charter cannot be justified by emergencies or special circumstances’. Similarly, see UNHRC General Comment 29 (n 66) para 11. For further discussion on these themes see C Landa, ‘Executive Power and the Use of the State of Emergency’, Chapter 8 of this volume.
79 See, in the case of Algeria, the observations of the UNHRC on the following matters: UNHRC, Louisa Bousroual v Algeria (Communication No 992/2001) (24 April 2006) UN Doc CCPR/C/86/D/992/2001 para 9.5; UNHRC, Salim Abbassi v Algeria (Communication No 1172/2003) (21 June 2007) UN Doc CCPR/C/89/D/1172/2003 para 8.3; UNHRC, Abdelhamid Benhadj v Algeria (Communication No 1173/2003) (20 July 2007) UN Doc CCPR/C/90/D/1173/2003 para 8.4; UNHRC, Ali Medjnoune v Algeria (Communication No 1297/2004) (14 July 2006) UN Doc CCPR/C/87/D/1297/2004 paras 8.5–8.6; UNHRC, Messaouda Atamna v Algeria (Communication No1327/2004) (10 July 2007) UN Doc CCPR/C/90/D/1327/2004 para 7.5; UNHRC, Messaouda Kimouche, née Cheraitia and Mokhtar Kimouche v Algeria (Communication No 1328/2004) (10 July 2007) UN Doc CCPR/C/90/D/1328/2004 para 7.5; UNHRC, Sid Ahmed Aber v Algeria (Communication No 1439/2005) (13 July 2007) UN Doc CCPR/C/90/D/1439/2005 para 7.5.
80 UNHRC, ‘General Comment No 8: Right to liberty and security of persons (article 9)’ (30 June 1982) para 4. For a detailed examination of these issues, see Casale (n 76) and NS Rodley, ‘Detention as a Response to Terrorism’, Chapter 18 of this volume.
81 See ACHPR, ‘Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa’ (16 May 2002) DOC/OS(XXX)247 Section M(6) 21 〈http://www.afrimap.org/english/images/treaty/ACHPR_Principles&Guidelines_FairTrial.pdf〉 accessed 25 May 2011 (ACHPR Fair Trial Principles and Guidelines).
84 Art 51(3) Criminal Procedure Code of the Algerian Republic. This legislation was severely criticized in UNHRC, ‘Concluding Comment of the Human Rights Committee: Algeria’ (18 August 1998) UN Doc CCPR/C/79/Add. 95 para 11.
92 Art 13(1)(2) Terrorism (Combating) Act 2000 of Sudan. For a detailed discussion of the use of special and military courts outside the African continent, see C Martin, ‘The Role of Military Courts in a Counter-Terrorism Framework: Trends in International Human Rights Jurisprudence and Practice’, Chapter 26 of this volume.
96 ACHPR: Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria (Communication No 218/98) Decision of 7 May 2001; Forum of Conscience v Sierra Leone (Communication No 223/98) Decision of 6 November 2000); International Pen, the Constitutional Rights Project, Interights [and Civil Liberties Organisation] v Nigeria (Communication Nos 137/94, 139/94, 154/96, and 161/97) Decision of 31 October 1998; Annette Pagnoulle (on behalf of Abdoulaye Mazou) v Cameroon (Communication No 39/90) Decision of April 1997; Civil Liberties Organisation v Nigeria (Communication No 151/96) Decision of 15 November 1999; Centre for Free Speech v Nigeria (Communication No 206/97) Decision of 15 November 1999.
101 See in particular Convention Relating to the Status of Refugees (adopted 14 December 1950, entered into force 24 April 1954) art 1(f); OAU Convention Governing the Specific Aspect of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) art 1(5); ‘Declaration on Territorial Asylum’, UNGA Res A/RES/2312(XXII) (14 December 1967) art 1(2).
103 For a detailed discussion of asylum law and non-refoulement, see AM Salinas de Frías, ‘States’ Obligations under International Refugee Law and Counter-Terrorism Responses’, Chapter 5, and C Wouters, ‘Reconciling National Security and Non-Refoulement: Exceptions, Exclusion, and Diplomatic Assurances’, Chapter 22, of this volume.
111 The Nigerian authorities invoked the criminal nature of the activities of an Algerian who had sought asylum in northern Nigeria to justify his refoulement to Algeria despite the formal request for asylum which he had submitted to the authorities of Nigeria.
113 See, for example, UNCAT, Josu Arkauz Arana v France (Communication No 63/1997) (5 June 2000) UN Doc CAT/C/23/D/63/1997 para 11.5 regarding the deportation of a suspected ETA terrorist from France to Spain.
122 In his reference work on the African Charter—K Mbaye, Les droits de l’homme en Afrique (2nd edn Editions A Pedone, Paris 2002)—he explains that, in many cases, its authors simply opted for vagueness. The aim of that technique was to avoid scaring off state representatives and to leave room for dynamic action on the part of the ACHPR.
123 As evidenced through its establishment of inter alia special rapporteur, working group, and focal point mechanisms. Further details available at 〈http://www.achpr.org/〉 accessed 25 May 2011 (see ‘special mechanisms’).
124 These include: the promotion activities stipulated in art 45(1) African Charter; communications by states (arts 47 et seq); the examination of communications by individual parties (art 55(2)); and the examination of the periodic reports by the States Parties (art 62).
125 The ACHPR has repeatedly emphasized that ‘[t]he [African] Charter must be interpreted holistically and all clauses must reinforce each other’. See ACHPR, Legal Resource Foundation v Zambia (Communication No 211/98) Decision of 7 May 2001 para 70.
126 To the author’s knowledge, the only case before the ACHPR in which terrorist activities are mentioned by either party is ACHPR, Law Office of Ghazi Suleiman v Sudan (Communication Nos 222/98 and 229/98) paras 27 et seq.
127 Particularly the case law on the use of special tribunals. See, for example, ACHPR, Amnesty International et al v Sudan (Communications Nos 48/90, 50/91, 52/91, and 89/93) Decision of 15 November 1999, on the practice of torture; ACHPR, Curtis Francis Doebbler v Sudan (Communication No 236/00) Decision of 29 May 2003 on the protection of the freedom of the press; ACHPR, Liesbeth Zegvelb and Mussie Ephrem v Eritrea (Communication No 250/02) Decision of November 2003; ACHPR, Article 19 v Eritrea (Communication No 275/03) Decision of 14 April 2003.
128 ACHPR, Amnesty International, Comité Loosli Bachelard, Lawyers Committee for Human Rights and Association of Members of the Episcopal Conference of East Africa v Sudan (Communication Nos 48/90, 50/91, 52/91, and 89/93) Decision of 15 November 1999 para 79.
134 ACHPR Resolution on ‘The Protection of Human Rights and the Rule of Law in the Fight against Terrorism’ adopted during its 37th Ordinary Session (21 November–5 December 2005) para 11 of the Preamble.
135 ACHPR Resolution on ‘The Protection of Human Rights and the Rule of Law in the Fight against Terrorism’ (n 134) para 2. It is surprising to note that freedom of expression is not considered a question warranting particular attention in the framework of the fight against terrorism.
136 The only Committee that is currently active within the ACHR is the Committee on the Implementation of the Robben Island Guidelines on torture and other cruel, inhuman, degrading treatment or punishment.
137 Rules of Procedure of the ACHPR (approved by the ACHPR during its 47th ordinary session in Banjul, The Gambia, 12–26 May 2010) (ACHPR Rules of Procedure) rule 23 (copy with author, ACHPR website not yet updated with new Rules of Procedure). The principal working groups (WG) of the African Commission are: the WG on Indigenous Populations/Communities in Africa; the WG on the Death Penalty; the WG on Economic, Social and Cultural Rights; the WG on Specific Issues Related to the work of the African Commission; the WG on Extractive Industries, Environment and Human Rights Violations in Africa; and the WG on the Protection of the Rights of People Living with HIV (PLHIV) and those at Risk, Vulnerable to and Affected by HIV.
142 See ACHPR Fair Trial Principles and Guidelines (n 81); the Robben Island Guidelines for the prohibition and prevention of torture (17–23 October 2002, ACHPR/Res. 61(XXXII)02); its resolutions on the protection of human rights defenders in Africa (21 November–5 December 2005, ACHPR/Res. 83(XXXVIII)05) and calling upon all States Parties to consider observing a moratorium on capital punishment (1–15 November 1999, ACHPR/Res. 42(XXVI)99); and its Declaration of Principles on Freedom of Expression in Africa (1–15 November 1999, ACHPR/Res. 62(XXXII)02).
144 Such as its Special Rapporteurs on: the Freedom of Expression and Access to Information in Africa; the Situation of Human Rights Defenders in Africa; Situation on Prisons and Conditions of Detention in Africa; and Situation on Refugees, Asylum Seekers and Internally Displaced Persons in Africa. See 〈http://www.achpr.org/english/_info/news_en.html〉 (special mechanisms) accessed 23 August 2011.
148 ACHPR Egypt Report 2005 (n 147) paras 30 and 36. Para 36 even calls on the authorities to ‘take appropriate steps to meet international requirements in term of fight against torture and in particular, implement the recommendations of the concluding observations adopted by the United Nations Committee against Torture on Egypt’.
150 In its most recent decision on the 29th Activity Report of the ACHPR (n 140), the AU’s Executive Council recommended that the ACHPR include henceforth within its annual reports a section on ‘the status of Human and People’s Rights in the continent’ and urged it to ‘categorize the claims made against Member States and highlight the efforts made by Member States in respect of Human Rights’.
159 To this day, only five States Parties to the ACtHPR have made such declarations: Burkina Faso, Ghana, Malawi, Mali, and Tanzania. See the Report on the status of OAU/AU treaties (as at 30 November 2010) EX.CL638 (XVIII) 16.
161 ACtHPR Interim Rules of Procedure Rule 51 〈http://www.achpr.org/english/other/Interim%20Rules/Interim%20Rules%20of%20Procedure.pdf〉 accessed 5 June 2011.