South Africa must incorporate humanitarian clauses in counter-terrorism legislation to protect victims of war.
In July 2022, South Africa's Police Minister Bheki Cele introduced a draft bill to update the country's existing counter-terrorism law - the Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004. It aims partly to ensure that South Africa's domestic law better aligns with developments in the field of counter-terrorism and with international legal instruments.
Parliament is currently considering the bill. Input will be sought from experts and the public before it is updated and becomes law.
The proposed amendments include expanded definitions of acts of terrorism, strengthened investigative and prosecutorial provisions, and criminalising the publication of unlawful terrorism-related content. But they don't provide for the applicability of international humanitarian law and lack a clear exemption for legitimate humanitarian activity.
This glaring absence could affect the work of agencies such as the International Committee of the Red Cross (ICRC), Médecins sans Frontières (MSF), the World Food Programme, the United Nations (UN) Children Fund and Oxfam. These organisations offer vital humanitarian aid to communities, including those affected by terrorism.
SA's law must catch up to new forms of terrorism, but the lack of protections for humanitarian action is a step backwards
While ensuring that the law catches up to new forms of terrorism and that state response is more agile, the lack of protections for humanitarian action is a step backwards. Where a state doesn't carve out a humanitarian exemption in domestic law, it dramatically hampers the future work of impartial humanitarian organisations in their countries. If domestic counter-terrorism measures don't factor in international humanitarian law and specifically exempt humanitarian work, this effectively criminalises humanitarian action.
According to the ICRC, humanitarian action is guided by four principles: humanity, impartiality, neutrality and independence. International humanitarian law also provides rules for impartial humanitarian action. This all ensures that organisations can relieve the suffering of those affected by war without bias.
Terrorism and violent extremism are key features of conflicts in Africa. In 2021, five African countries were among the top 10 nations most affected by acts of terrorism worldwide. These were Burkina Faso, Niger and Mali in the Sahel; Nigeria in the Lake Chad Basin; and Somalia in the Horn of Africa. Nearly 3 000 terrorism-related deaths were registered in those countries alone. Mozambique is another affected country, where a violent insurgency in the north threatens lives and livelihoods. While South Africa is not one of the top countries affected by terrorism, it's not immune to the threat, as recent prosecutions show.
States must have national measures to counter terrorism and protect citizens. But counter-terrorism laws need limits that allow them to strike a careful balance between what they seek to combat (terrorism) and ensuring that their actions don't harm.
In 2021, five African countries were among the top 10 nations most affected by acts of terrorism worldwide
For states and impartial humanitarian organisations to counter terrorism effectively, such legislation must recognise the relevance and application of international humanitarian law to armed conflicts, including those involving groups and people designated as 'terrorists', and must comply with this law. This can be achieved by including two clauses: an 'international humanitarian law saving clause' and a 'humanitarian exemption clause.'
The exemption clause would ensure that impartial humanitarian organisations can carry out their work even in conflicts involving an armed group designated as 'terrorist'. Such a clause would effectively exclude from the scope of counter-terrorism legislation exclusively humanitarian activities undertaken by impartial organisations in line with international humanitarian law.
Without this clause, counter-terrorism laws could inadvertently criminalise humanitarian work. Legislation that criminalises 'support to terrorist groups' and 'communication with terrorist groups' without incorporating a humanitarian exemption clause could see impartial humanitarian organisations being prosecuted for actions authorised and protected under international humanitarian law.
For example, providing medical assistance to people affected by conflict in areas controlled by a non-state armed group, asking the group to respect international humanitarian law, or even simply being in an area controlled by the group.
In wartime, international humanitarian law must prevail over domestic counter-terrorism legislation
An international humanitarian law saving clause regulates the relationship between counter-terrorism legislation and international humanitarian law. This law applies only during armed conflicts, either international or non-international. In peacetime there'd be no conflict of laws between the two, as the latter is simply not applicable.
In wartime, however, international humanitarian law must prevail over domestic counter-terrorism legislation. Some conduct that is lawful under international humanitarian law, such as in certain conditions an attack against a non-state military target, may be criminalised under counter-terrorism legislation.
An international humanitarian law saving clause resolves this by preferring international humanitarian law while still permitting states to prosecute under counter-terrorism laws actions neither governed nor prohibited by international humanitarian law.
Recognising the importance of exemption clauses for humanitarian work in terrorism law, the AU's African Model Anti-Terrorism Law of 2011 includes provisions protecting international humanitarian law and those providing humanitarian work. Progress is slow globally, but countries like Ethiopia and Chad include these in their counter-terrorism laws.
UN Security Council Resolution 2462 (2019) requires states to 'ensure that their counter-terrorism measures comply with international humanitarian law' and to consider the 'potential effect of [those] measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law.'
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When the Resolution was unanimously adopted, the three African elected members of the UN Security Council were Côte d'Ivoire, Equatorial Guinea and South Africa. Of these three, South Africa is the first to update its counter-terrorism law. However, despite supporting UN Security Resolution 2462, the proposed amendment to the 2004 Protection of Constitutional Democracy against Terrorist and Related Activities Act still doesn't include clauses protecting international humanitarian law. It also excludes a humanitarian exemption clause.
As South Africa's 2022 Protection of Constitutional Democracy against Terrorist and Related Activities Act Amendment Bill is being considered - and the public can comment on its provisions before it becomes law - there's still time to advocate for incorporating humanitarian exemption and international humanitarian law savings clauses.
This would ensure that the country's legislation aligns with the AU Model Law, UN Security Council resolutions and Counter-Terrorism Committee Executive Directorate positions. It would also guarantee that humanitarian efforts aren't criminalised, and victims of war and armed conflict can continue receiving aid and protection under South African law.
Ottilia Anna Maunganidze, Head of Special Projects, ISS and ICRC Regional Delegation, South Africa