Counter-Terrorism and International Cooperation Against Terrorism — An Elusive Goal: a South African Perspective

Abstract

The Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004 is aimed at creating a legal machinery to counter any domestic threat of terrorism and give effect to South Africa’s international obligations to counter internationalterrorism. This article argues that the scope of the Act, which is defined by its definition of a ‘terrorist act’, is vague and reaches far beyond any conventional understanding of what terrorism is – the indiscriminate attacks on civilians to achieve a political purpose. At the same time it attempts to insulate the actions of ‘freedom fighters’ from the scope of the Act. This definition will make adjudication under the Act and international cooperation very difficult. The Act is therefore vulnerable to constitutional scrutiny on the grounds of legality. The article also examines the failure of many countries, including the United States, to comply with the rule of law in countering the threat posed by terrorism. The article concludes that cooperating with countries whose counter-terrorism policies are inimical to the rule of law would fall foul of South Africa’s own domestic and international obligations to promote and to protect human rights.