Guest Post from Xavier Rauscher: How the African Union Defines Terrorism

As Africa grows more concerned with terrorist attacks, as the conflict in Somalia spills over in the East and Al-Qaeda in Islamic Maghreb (AQIM) grows more and more bold and active in the West, the African Union is currently working on a draft law and common ground to harmonize their counter-terrorism policies. Yesterday, Magharebia published a detailed article on the progress of the draft law. Here’s an excerpt:

“This law will enable member nations of the AU to pursue or extradite terrorists active on their territory,” African Union (AU) Peace and Security Commissioner Ramtane Lamamra said. The bill also calls for “drawing up of a list of known terrorist and terrorist entities, like those of the UN”, he noted. (…)

The proposed model law should be “expandable and comprehensive, featuring all the necessary legal procedures to prevent and combat terrorist acts, including the criminalisation of terrorist acts, establishment of channels of co-operation, enhancement of surveillance on the border, exchange of intelligence, judicial cooperation and combating terrorist financing,” [Algerian Minister for Maghreb and African Affairs Abdelkader]Messahel added.

He also pointed out to the need to incorporate international agreements and the relevant UN Security Council regulations into the new bill.

Some countries are hoping this law will encourage African co-ordination on the anti-terrorism front and get past the problems that impeded regional collaboration, especially with regards to extraditions. Algeria and Mauritania have both criticised Mali for releasing terrorists, including suspects wanted by the Algerian judiciary, who were detained by Mali. Bamako released those wanted terrorists as part of a deal to free Pierre Camatte, a French hostage detained by AQIM.

A few remarks about what this news could mean:

Stating the obvious, but… This is excellent news for those worried about the rise of terrorism in Africa. It shows that African countries are taking the threat seriously and therefore are willing to go to new lengths to cooperate, including binding themselves in an international convention. Needless to say, to efficiently combat transnational terrorism, international cooperation is a must.

A classical but valuable counterterrorism instrument for Africa

From what can be gathered from the media articles on this topic, it would appear that the African Union is moving towards a “classical,” law-enforcement type of counter-terrorism convention founded on the standard aut dedere aut judicare (‘prosecute or extradite’) approach. As Algerian Minister for Maghreb and African Affairs Abdelkader Messahel claimed:

the law “will have to be comprehensive and complete and provide all legal measures to prevent and fight terrorist acts, including the criminalisation and penalisation of terrorist acts”.

From the Magharebia article:

The model bill is seen as a “comprehensive tool” aimed at directing and guiding Africa in the counter-terrorism field, especially through the unification of legislation, according to AU Peace and Security Commissioner Ramtane Lamamra. He added that the matter was primarily related to the enhancement and implementation of the principle of international law as represented in “pursuit or extradition” as soon as the “terrorist” acts are recognised as punishable on the international and African levels.

Although such an approach has shown its limits in the past, such as in the Lockerbie case (PDF file) that opposed the United States and the United Kingdom on one side, and Libya in the other side, it is still a safe and proven system that has its share of advantages and that is greatly geared towards international cooperation, especially in judicial affairs.

The aut dedere aut judicare principle is the framework on which all other international counterterrorism conventions are based. Two noteworthy differences should be pointed out about the African Union draft convention: first of all, it is regional, which makes it almost unique. Indeed, to my knowledge, only the European Union has adopted so far a regional instrument to harmonize their efforts in counterterrorism, namely the Council Framework Decision of 13 June 2002 on combating terrorism. Secondly, this convention is comprehensive. And that could open the gate to a lot more.

A way out of the impasse?

International law, in dealing with terrorism, has been confronted with what has been so far an insurmountable obstacle to obtaining a comprehensive counterterrorism instrument: the impossibility to agree on a common definition of terrorism. This is essentially due to what has been qualified by many as a “cliché”: one man’s terrorist is another man’s freedom fighter. Indeed, there has been a lot of debate within the international community on what constitutes a terrorist group and what does not, especially in the context of national liberation movements, from the period of decolonization to the Palestinian resistance to Israeli occupation. In the words of Carol Bahan, “the inability to define terrorism is predominantly due to the fact that states have different beliefs about which acts constitute international terrorism.”[1]

The lack of an internationally accepted definition of terrorism has forced the international community to abandon the idea of a comprehensive international legal instrument to fight terrorism, and to adopt a “sectorial” approach: thirteen different counterterrorism conventions, each addressing a different aspect of combating terrorism as terrorism has evolved over time, from the 1963 Convention on Offenses and Certain Other Acts Committed On Board Aircraft to the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism.

What will be particularly interesting to watch once the African Union convention is finalized is what definition is adopted by African states in order to harmonize their criminalization of terrorism – a necessary step in the law enforcement approach, and announced by Minister Messahel – and whether the African consensus on a definition could lead the way – and offer the political impetus – to obtain a long-awaited international comprehensive convention against terrorism, which would without a doubt strengthen international cooperation in the global struggle against terrorism.

Xavier Rauscher is a recent LLM graduate who specializes in international law with a focus on international counter-terrorism. He regularly blogs at The International Jurist, and you can follow him on Twitter @xrauscher_

Thanks to Catherine Minall for mentioning this recent development to me last week, and to Caitlin Fitz Gerald for her help error-hunting.

[1] C. A. Bahan, “International Terrorism: The Legitimization of Safe Harbor States in International Law” (2010) 54 NYLSLR 333, 338.

4 Responses to Guest Post from Xavier Rauscher: How the African Union Defines Terrorism

  1. Pingback: The Wasat & My Guest Post On The African Union and Terrorism « The International Jurist

  2. Pingback: Some Quick Thoughts About Africa, the Crime of Terrorism and the Rome Statute « The International Jurist

  3. Pingback: The International Jurist › Special Tribunal for Lebanon To Define “Terrorism”

  4. Marianne Feinberg says:

    Article 18 of the Council of Europe Convention on the Prevention of Terrorism, signed in 2005 includes the principle to ‘extradite or prosecute’.

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