SOCIAL CONFLICTS AND THE QUEST FOR LEGAL SOLUTIONS

LAW AND TERRORISM

The Objectives:

One of the key objectives of our consideration of the subject is to understand and
find durable solutions to the problem of terrorism.

Definition of Terrorism:

Terrorist Incidences: to help us understand how the problem has manifested

itself over the years.

Some of the Causes on Terrorism:

Issues arising from the problem of terrorism:

Legal Responses to the problem of terrorism: (a) International Responses

including regional responses; and
(b) National Responses

How is the law addressing the Problem:

Challenges to the legal responses to terrorism:

Definition of Terrorism:

There is no universally accepted definition of terrorism. There is also no

universally accepted definition of terrorists. Even the United Nations a world
peace body has not come up or adopted a single definition of terrorism and
therefore it is necessary for us to consider some of the definitions that have been
adopted in international and national legal instruments. The international
instruments comprise international instruments in form of agreements e.g. the
Montreal Convention For the Suppression of Unlawful Acts Against Civil Aviation
1972. [Montreal Convention] in this convention terrorism was defined as an act
of aviation sabotage.

Another international convention also attempted to address terrorism i.e. the

Hague Convention For the Suppression of Unlawful Seizure of Aircrafts: (The
Hague Convention) the Act said Any person who on board an aircraft inflight
(a) Unlawfully, by force or threat of force or by any other form of intimidation
seizes or exercises control of that aircraft or attempts to perform such act
or;

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They were trying to define terrorism and one of the things that they noted was
unlawfully, or by use of force, seizing or exercising control of an aircraft in
flight.

The UK Terrorism Act of 2000 has a very long definition

threat constitutes terrorism, serious violence against a person, creates

safety to the public etc.

Uganda Anti-terrorism Act of 2000

Threats or use of force or violence against a group of people stand out in the
definition.

The US Patriot Act attempts to define terrorism.

The Kenyan Bill defines terrorism in very similar language.

From the definitions in the legal instruments, we can agree that an act of
terrorism refers to the threat or use of violence in order to create extreme fear
and anxiety in a target group so as to coerce them to meet the political,
religious or ideological objectives of the perpetrators.

Terrorist Incidences

Terrorism is an old problem and one needs to know the motivation of the
terrorist act in order to be able to take an appropriate state response.

In the period up to the early 70s an attempt was made to equate terrorism
which manifested itself with aircraft hijacking and sea piracy which preceded
aircraft hijacking. The nature of aircraft hijacking were examined and it was
discovered it was quite different from sea piracy.

The earliest reported terrorism activities was in 1930 where an aircraft was
seized and diverted to another country by Peruvian revolutionaries and after
this incident there was no other seizure until 1947 and then from1947 such
hijacking of aircrafts seizures increased

In 1959 a US Flag aircraft was seized in the US and forced it to fly to Cuba.

In 1952 in Yugoslavia, 3 Yugoslavian crew members on an in-country flight

subdued the other flight personnel and diverted the aircraft to Switzerland.
When they landed in Switzerland, the reason was that the political climate in
Yugoslavia was intolerable and the crew members were seeking asylum in
Switzerland. When they reached Switzerland an extradition request was made
by Yugoslavia and Switzerland denied the request and gave asylum to the crew
noting that they were political refugees.

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In 1970 9 revolutionary Japanese students calling themselves the red army
hijacked a Japanese Boeing 727 and forced the aircraft to fly to North Korea
(there was a flight embargo on flights from Japan to North Korea and the
students wanted to make a point by flying to North Korea) they later flew back
to Japan.

In 1961 5 men and 1 woman who were a group of political activists, they were
Portuguese who were supporting a particular Captain Galvao who was a
presidential aspirant. They seized a Portuguese Aircraft and commandeered
the pilot to circle over Lisbon to be able to drop leaflets supporting Captain
Galvao and once all the leaflets were finished, they commandeered the aircraft
to Morocco. They sought Asylum in Morocco while the govt was investigating
but were later expelled from Morocco but Brazil proceeded to grant them
asylum.

In 1967 an aircraft carrying a Congolese Prime Minister was captured and the
Prime Minister jailed.

The fight to liberation of Palestine was responsible for many aircraft air-
jackings.

Between 1963 and 1970 there were a total of 210 incidences of aircraft
hijackings. For many of the aircrafts hijackings the US was involved.

The 90 Minutes at Entebbe incident of 1976

From the late 1970s terrorist activities took a different dimension

In 1980 terrorism took a new dramatic turn and there was a lot of threats of
violence involved and it became clearer that certain groups were targeted
which raises so many legal issues.

The financing of terrorism has become a major problem, organisations and

religious group exist that finance terrorism activities and a proliferation of
terrorist organizations of all kinds.

Local support for foreign terrorist activities are another phenomena.

Religious fundamentalism is also another reason of increased terrorist

activities. Muslims have been mentioned but they also apportion blame to the
Christians. It is both ways.

CAUSES OF TERRORISM

A terrorist must indeed have a reason.

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 In many cases the motive is political, there are situations where some people
flee countries for political havens, political turmoil, there are also cases where
terrorist attacks are carried for transportation purposes.
Unbalanced persons have also played their role (disturbed persons)
Ideological factors ideological antagonism is one of those factors that force
people to carry out terrorist activities. There are those who believe in
capitalism and other in communism. Ideologies can either be political or
religious.
Criminal reasons there are cases where criminal escaping from one country
to another hijack aircrafts.
Terrorism activities for purposes of personal material gain.

That was just a summary of reasons:

Issues Arising from Terrorism that Law will address:

1. Injury to persons;
2. Property damage;
3. Issue of custody of hijackers how are terrorists to be handled once they
surrender or are arrested:
4. Prosecution of terrorists who has the jurisdiction to prosecute? Capacity
to prosecute?
5. Safety of passenger where an aircraft is hijacked how does law ensure the
safety of passengers?
6. Extradition returning a terrorist to their country of origin upon request.
7. Economic and Social impact of terrorist activities
8. Root causes of terrorism;
9. in most cases it may involve more than one country and law has to address
this;
10. Asylum the Charter of the United Nations and more clearly the
Universal Declaration of Human Rights grants the right to every person to
seek asylum in a foreign country.
11. State sponsored terrorism; some states support terrorism and terror
activities

LAWS CREATED IN RESPONSE TO ADDRESS THESE ISSUES

Legal Responses

1. The International Legal Regime International Agreements that comprise

treaties and conventions on terrorism, regional agreements and bilateral
agreements.

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Geneva Convention of 1958 intended to deal with sea piracy but included aircraft
hijackings but which was found to be hopelessly inadequate as the activities
involved in aircraft hijacking were totally different from Sea Piracy.

The Montreal Convention: many matters concerning terrorism were left out.

The Tokyo Convention: this convention had many weaknesses and did not confine
its subject matter to aircraft hijacking but instead dealt with a number of crimes
some of which were local in character.

Some of the problems with the conventions was that they conflicted with other
laid down conventions like the Declaration of Human Rights which says that
everyone has the right to seek and enjoy in other countries asylum from
prosecution.

This principle was reaffirmed by the UN Resolution in Article 14 of 1967 it

reaffirmed the right to seek asylum by declaring that the situation of the person
invoking the right to asylum is of concern to the international community and that
person shall not be subject to extradition and ought to be granted asylum

Article 7 obligates parties to prosecute or extradite persons who commit

terrorism activities and yet we have the universal declaration of human rights
which says that they must be given asylum and not prosecuted. These were just
some of the weaknesses and there was also lack of political will.

At the international level there is a legal regime supposed to address terrorism

but it is faulty.

Can a national legislative be adequate.

UN Resolution of 2001 soon after the September 11 th Attack. This is the

resolution in which the UN expressly recognised the act of terrorism and called
upon countries members of the UN to create national laws in response to
terrorism. Countries are expect to implement soft laws concerning terrorism.

Countries like Kenya should consider the following issues concerning terrorism in
the new dispensation
1. Porous Borders; e.g. borders between Kenya and Somalia, Ethiopia,
Eritrea etc;

2. Definition of Terrorism is problematic and there ought to be a clear

definition of terrorism in the national legislation;

3. Jurisdiction to try offenders who has the right to try offenders?

4. Capacity to try terrorists? Or the knowledge of terrorism and capacity

to hold them in custody;

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5. Constitutional compliance to what extent is a country going to abridge
constitutional rights of its citizens to comply with terrorism laws?

6. Information sharing: countries must be able to share information;

7. Terrorist Organisations

8. Disaster preparedness contemporary problems to be addressed

9. Root causes of terrorism consider the root causes

10. Domestic acts of protests must be considered

11. Issue of Sovereignty to what extent can a country give up its

sovereignty for sake of investigations and arrest of terrorists.

12. Impacts on the population; social and economic impacts

13. Public participation in law making and in implementation of the laws;

14. Matters concerning the rule of law; to what extent we going to

15. What is law addressing and how are we trying to deter terrorism

Section 4, 93, 12, 16 AND Section 30

Terrorism has presented very many legal challenges and in many cases anti-
terrorism legislation.

Certain

Concept of a right who has the right

Concept of punishment how do you use punishment to deter the terrorist act
if the perpetrator is willing to die.
Social contract theory this is challenged
State sovereignty has been challenged
Idea of fighting proxy wars
Issue of collateral damage

RECOMMENDATIONS

Ratify conventions
Laws on money laundering
Disaster preparedness and emergency action plan
Share information
Create legal framework for corroboration

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Write 10 recommendations on appropriate legal provisions to be included in
our anti-terrorism legislation.

What role can law play in addressing HIV and AIDS challenging issues? 10
points.

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