A. OAU Convention on the Prevention and Combating of Terrorism 1999

Terrorist acts continued to escalate, including high profile attacks such as the attempted assassination of President Mubarak of Egypt by Islamists in Addis Ababa, Ethiopia in 1995, with Sudanese complicity, and the Al Qaeda bombings of the United States embassies in Kenya and Tanzania in 1998. The OAU responded by adopting the OAU Convention on the Prevention and Combating of Terrorism in 1999.Footnote ¹⁸ The OAU Convention was drafted by a sub-committee of the OAU Central Organ of the Mechanism for Conflict Prevention, Management and Resolution, comprising five states (Algeria as chair, Burundi, Namibia, Senegal and Tanzania), in collaboration with the OAU legal division.Footnote ¹⁹ At the time, few African states had already enacted specific criminal laws against terrorism. Algeria, chairing the drafting committee, had criminalized subversive or terrorist acts in September 1992.Footnote ²⁰ Egypt had also criminalized terrorism in July 1992,Footnote ²¹ a definition which heavily influenced the Arab League Convention 1998. The drafting of the OAU Convention was in turn influenced by Algeria’s leadership,Footnote ²² the Arab League Convention 1998 and the OIC Convention 1999 (with partially overlapping memberships between the three regional groupings),Footnote ²³ and a concern to accommodate civil and common law traditions.Footnote ²⁴

The preamble to the OAU Convention describes terrorism as a ‘serious violation of human rights’, particularly rights to physical integrity, life, freedom and security, and notes that it impedes socio-economic development by destabilizing states. It also notes the dangers to state stability and security, and the links between terrorism and organized crime (including arms and drug trafficking and money laundering). Article 1(3)(a) defines a ‘[t]errorist act’ as any domestic criminal act ‘which may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage to public or private property, natural resources, environmental or cultural heritage’. Such act must be ‘calculated or intended to’:

1. (i) 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; or

2. (ii) disrupt any public service, the delivery of any essential service to the public or to create a public emergency; or

3. (iii) create general insurrection in a State.

Terrorist acts are further defined to include various extended modes of criminal liability, including ‘any promotion, sponsoring, contribution to, command, aid, incitement, encouragement, attempt, threat, conspiracy, organizing, or procurement of any person, with the intent to commit any act referred to’ above (Article 1(3)(b)). As discussed below, the Malabo Protocol virtually replicates this definition.

As in the Arab League and OIC Conventions,Footnote ²⁵ article 3(1) of the OAU Convention excludes ‘the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces’. This exclusion exists despite article 3(2) stating that ‘[p]olitical, philosophical, ideological, racial, ethnic, religious or other motives shall not be a justifiable defence against a terrorist act’ – an exclusion borrowed from the language of the UN General Assembly’s 1994 Declaration on Measures to Eliminate International Terrorism.Footnote ²⁶ The exemption reflects the heightened importance of national liberation struggles in African political histories, even if excessive liberation violence could still be prosecuted, for instance, as war crimes or crimes against humanity. It could even exclude, for instance, Al Shabaab attacks on AU peacekeepers in Somalia, ‘on the pretext that they are fighting a foreign invasion and domination by foreign forces’.Footnote ²⁷ There is, however, no exclusion in the OAU Convention of conduct in armed conflict covered by IHL.

States are then required to criminalize terrorist acts (article 2); eliminate political or other motives as a defence (article 3); establish extensive jurisdiction over the offences (article 6); investigate (article 7) and prosecute or extradite (article 8) suspects (thus addressing the problem of impunity). States must also cooperate in a range of ways (article 4), including exchange of information (article 5) and mutual legal assistance (Section V).

The OAU Convention shares some elements of the Arab League and OIC definitions, is more restrictive in other respects, and is more expansive in other ways. In addition to the national liberation exception, the OAU Convention follows the Arab and OIC Conventions in referring to instilling fear in the public; endangering life, physical security or freedom; harming public or private property, or the environment; and endangering ‘natural resources’ (the Arab and OIC Conventions refer comparably to a ‘national resource’).

The OAU Convention appropriately requires an underlying harmful act to also be ‘a violation of the criminal laws of a State Party’, whereas the Arab League and OIC Conventions more loosely extend to any act or violence that causes the requisite harm. It also does not reproduce the vague element from the OIC Convention of ‘threatening the stability, territorial integrity, political unity or sovereignty of independent States’.

On the other hand, the OAU Convention goes further than the other treaties by referring to acts against ‘cultural heritage’;Footnote ²⁸ or which disrupt public or essential services or create a public emergency; or that create ‘general insurrection’ in a state. The latter offence reorients terrorism as a national security or political offence,Footnote ²⁹ focused on protecting governments from rebellion or revolution, or averting civil war. The references to public or essential services bear some resemblance to the Algerian and Egyptian national definitions of 1992, with the Algerian law mentioning disruption to traffic, communication, transport, public authorities and public institutions, and the Egyptian law referring to damage to communications or impeding public authorities.Footnote ³⁰

Further, whereas the Arab and OIC Conventions focus on the terrorization of people, the OAU Convention includes an alternative ‘special intent’ (or motive) element of coercing or inducing a government, body or institution. A similar element was included in the UN Terrorist Financing Convention half a year later, in December 1999,Footnote ³¹ and has since appeared in the UN Draft Comprehensive Terrorism Convention, the EU Framework Decision on Combating Terrorism 2002, and in various national terrorism offences.Footnote ³²

The definition of terrorist offences in the OAU Convention have been criticized on human rights grounds as being vague and over-broad, and infringing the principle of legalityFootnote ³³ (which requires sufficient specificity and predictability in the definition of offences).Footnote ³⁴ The protected targets are wide and ill-defined. ‘Inducing’ a government to adopt or abandon a particular standpoint is a basic aim of democratic politics, sometimes occasioned by overzealous acts of protest which amount to criminal violence but fall short of the concept of terrorism and which ought not be treated as such. Regarding acts which create a ‘public emergency’ or a ‘general insurrection’ as terrorism conflates national security or emergency laws with terrorism, eroding any meaningful distinction between these categories. There have also been concerns about the impact on the right to strike.Footnote ³⁵

B. Subsequent AU Counter-Terrorism Developments

Several normative developments at the regional level, also potentially relevant to the interpretation of the Malabo Protocol terrorism offence, should be mentioned. The definition and exception in the OAU Convention supply the operative norms for an AU Protocol 2004 to the OAU Convention 1999,Footnote ³⁶ spurred in part by concerns about the slow domestic implementation of the Convention. The Protocol 2004 creates no new offences, but aims to enhance the implementation of the Convention and to coordinate and harmonize African efforts to prevent and combat terrorism.Footnote ³⁷ States undertake to implement a range of measures on terrorist training and financing, mercenarism, weapons of mass destruction, compensation for victims of terrorism, preventing the entry of terrorists, and exchange of information and cooperation.Footnote ³⁸ The Protocol forbids the torture or degrading or inhumane treatment of terrorist suspects, but asks States to ‘take all necessary measures to protect the fundamental human rights of their populations against all acts of terrorism’.Footnote ³⁹ It tasks the AU’s Peace and Security Council with harmonizing and coordinating African counter-terrorism, and states undertake to submit regular reports to the Council.Footnote ⁴⁰

At a ‘soft’ law level, the AU developed an African Model Anti-Terrorism Law in 2011Footnote ⁴¹ to stimulate and guide domestic implementation of international counter-terrorism obligations. While the model law defines ‘terrorist act’ by reference to UN and AU instruments, its other cumulative elements of definition significantly narrow the scope of liability and bring African practice more into line with international standards. In particular, relevant treaty offences must be intended ‘to intimidate the public or any section of the public or compel a government or international organization to do or refrain from doing any act and to advance a political, religious or ideological cause, if the act’:

1. (a) involves serious violence against persons;

2. (b) involves serious damage to property;

3. (c) endangers a person’s life;

4. (d) creates a serious risk to the health or safety of the public or any section of the public;

5. (e) involves the use of firearms or explosives;

6. (f) involves exposing the public to any dangerous, hazardous, radioactive or harmful substance, any toxic chemical or any microbial or other biological agent or toxin;

7. (g) is designed to disrupt, damage, destroy any computer system or the provision of services directly related to communication infrastructure, banking and financial services, utilities, transportation or key infrastructure;

8. (h) is designed to disrupt the provision of essential emergency services such as the police, civil defence and medical services; or

9. (i) involves prejudice to public security or national security.Footnote ⁴²

While these elements overlap in significant respects with the acts mentioned in the OAU Convention, they tend to be more tightly circumscribed (for example, ‘serious’ violence, property damage, or risk to public health). In broad terms they are drawn from the elements of the Terrorist Financing Convention 1999. In addition, the further specific intent or motive element is required of a ‘political, religious or ideological cause’, which is drawn from some common law jurisdictions (such as the UK, Canada, Australia, New Zealand and South Africa) and partly reflects the UN General Assembly’s 1994 Declaration (which refers to ‘political purposes’).

While the Model Law remains broad in other respects – such as an ambiguous reference to ‘prejudice to public security or national security’ – it is narrowed in an important way by the inclusion of a ‘democratic protest’ defence (excluding any act that is the result of ‘advocacy, protest, dissent or industrial action’ and which does not cause certain types of serious harm to people or property).Footnote ⁴³ Unlike the OAU Convention, the Model Law further excludes ‘acts covered by international humanitarian law, committed in the course of an international or non-international conflict by government forces or members of organized armed groups’,Footnote ⁴⁴ while also replicating the exemption for liberation or self-determination struggles.Footnote ⁴⁵

More generally, the AU’s Plan of Action on the Prevention and Combating of Terrorism in Africa of 2002 makes further recommendations in the criminal field to states, including specific suggestions for legislative and judicial measures.Footnote ⁴⁶ These include measures in relation to investigation and prosecution, criminalization and punishment, evidence, judicial capacity building, harmonization of laws, extradition and mutual legal assistance, exclusion of the political offence exception to extradition, establishment of jurisdiction, extended modes of criminal liability (to place the mastermind, the apologist, the accomplice, the instigator and the sponsor of a terrorist act on the same pedestal as the perpetrator’); dissemination of propaganda; and terrorist financing.

A. Drafting History

The Report of the Committee of Eminent African Jurists on the Case of Hissene Habre, which recommended in 2006 that the African Court be granted criminal jurisdiction,Footnote ⁴⁷ did not enumerate which crimes the Court should have jurisdiction over. The Habre case primarily concerned the Convention against Torture. The AU Assembly subsequently requested, in February 2009, the AU Commission to study the implications of the Court being empowered to try ‘international crimes, such as genocide, crimes against humanity and war crimes’,Footnote ⁴⁸ but again no mention was made of terrorism.

In February 2009 the AU Commission asked the Pan African Lawyers Union (PALU) to provide recommendations. PALU proposed the first draft of the Protocol in its June 2010 report to the Commission.Footnote ⁴⁹ No general crime of terrorism was included and the only operative reference to terrorism was in the war crime of ‘acts of terrorism’ (which was ultimately excluded from the Malabo Protocol as adopted in 2014). There was also a preambular reference to terrorism, which reiterated the AU’s ‘respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities, unconstitutional changes of governments and acts of aggression’. That wording was retained through to the final Protocol as adopted in June 2014.

The first draft of June 2010 was reviewed by the AU Commission’s Office of Legal Counsel in June 2010 and considered in ‘validation’ workshops with AU organs and Regional Economic Communities in August and November 2010. The crime of ‘terrorism’ appeared for the first time in the November 2010 draft Protocol.Footnote ⁵⁰ The offence was drawn almost verbatim from the OAU Convention, including its extended modes of criminal liability, the liberation/self-determination exception, and the exclusion of political or other motives. Like the OAU Convention, the draft did not exclude conduct in armed conflict covered by IHL.

The only significant change of language between the OAU Convention and the draft Protocol was in the description of the underlying acts. Whereas the OAU Convention stipulates that an act must be a violation of national criminal law, the draft Protocol added to that formulation the alternatives of an act being a violation of ‘the laws of the African Union or a regional economic community recognized by the African Union, or by international law’.Footnote ⁵¹

The draft Protocol was considered further at a meeting of government experts in November 2011 and a May 2012 draft of the Protocol was endorsed by a meeting of Ministers of Justice and Attorneys-General in July 2012.Footnote ⁵² By that the stage the draft Protocol contained one further amendment to the terrorism provision: acts covered by IHL, committed in the course of an international or non-international armed conflict by government forces or members of organized armed groups, were not to be considered as terrorist acts. Such acts were thus left to be regulated by the special law (lex specialis) of IHL, including war crimes liability. As noted earlier, in 2011 the AU had adopted the African Model Anti-Terrorism Law, which excluded acts covered by IHL.

Thereafter the final adoption of the draft Protocol was delayed because of lingering controversies over the definition of the crime of unconstitutional change of government, the scope of immunities, and financing issues. There were, however, no further changes to the terrorism offence when the Protocol was adopted in June 2014. There was also little opportunity for civil society input into the AU’s internal drafting process.Footnote ⁵³

B. Definition of the Crime of ‘Terrorism’ and Interpretive Issues

As adopted, the Malabo Protocol confers jurisdiction over the crime of ‘terrorism’ in article 28A(1)(6) and defines the crime of ‘terrorism’ in article 28G as follows:

As mentioned, the definition is drawn largely verbatim from the OAU Convention and consequently the drafting debates, and subsequent interpretation and practice surrounding that instruments since 1999, are relevant in shedding light on the Malabo Protocol offence. At the same time, practice under the OAU Convention is scarce; African states have been slow in both ratifying and domestically implementing it, and prosecutions and recorded judgments concerning its terrorist offences are rare.

The complex, compound definition of terrorism in the Malabo Protocol gives rise to numerous interpretive issues. The elements of the definition of terrorism are:

• An underlying act that violates national criminal law, AU law or African regional economic community, or international law; and

• Danger to life, physical integrity or freedom; or serious injury or death to a person or group; or damage to public or private property, natural resources, environmental or cultural heritage; and

• A special intent, or motive, to: (1) intimidate, put in fear, coerce or induce a government, body, institution, the public (or part of it); or (2) disrupt a public or essential service, or create a public emergency; or (3) create general insurrection.

The Malabo Protocol does not require any transnational element to the crime of terrorism, such that purely domestic terrorism comes within the jurisdiction of the African Court. This contrasts with, for instance, the approach of the international counter-terrorism conventions,Footnote ⁵⁴ the UN Draft Comprehensive Terrorism Convention, and the nascent customary international crime of terrorism identified by the Special Tribunal for Lebanon.Footnote ⁵⁵

In light of protracted international debates about state versus non-state terrorism, it may be observed that any individual may bear criminal responsibility for the crime of terrorism, whether a state official or agent, members of non-state terrorist groups, or lone individuals. However, heads of state or government, and senior officials based on their functions, enjoy immunity from jurisdiction during their tenure in office pursuant to article 46A bis of the Malabo Protocol. There is also corporate criminal liability of legal persons, but not states, under article 46C of the Protocol.

C. Extended Modes of Criminal Liability

Article 28G(B) of the Malabo Protocol further defines the crime of terrorism to include ‘[a]ny promotion, sponsoring, contribution to, command, aid, incitement, encouragement, attempt, threat, conspiracy, organizing, or procurement of any person, with the intent to commit any act referred to in sub-paragraph (a)(1) to (3)’. The provision replicates the extended modes of criminal liability for terrorism in the OAU Convention.

The inclusion of these extended modes of criminal liability is both largely unnecessary and technically problematic. The extended modes were necessary in the OAU Convention because that instrument dealt solely with the crime of terrorism, designed for implementation in domestic law, and accordingly there were no common or general provisions on extended liability which the instrument could fall back upon. Extended modes otherwise vary in national law, and the OAU Convention aims to encourage domestic harmonization and transnational cooperation on commonly identified forms of criminal participation.

In contrast, the Malabo Protocol demarcates a regional court’s jurisdiction over a bundle of different crimes and contains a common provision on extended modes of liability. Article 28N sets out the ‘modes of responsibility’, and addressed fully in a separate chapter, is applicable to all crimes in the Protocol:

Unlike terrorism, most of the other crimes in the Malabo Protocol are not defined to include their own specific modes of extended liability, but rely on the common modes in article 28N. There are only a few crime-specific exceptions to this general approach (such as recruiting, using, financing or training mercenaries in article 28H(2)) – as well as some troubling omissions (such as the failure to specifically include direct and public incitement to genocide, as required by the Genocide Convention 1948).

The combination of the terrorism-specific modes of extended liability in article 28G(B) and the general modes of extended liability in article 28N both creates grave confusion and overly broad criminal responsibility. In means, for instance, that a person may be liable for inciting incitement to terrorism; or attempting to attempt terrorism; or aiding the aiding of terrorism, and so on.

Oddly, one of the most important terrorism-specific extended offences, financing terrorism, is not found in the terrorist crimes in article 28G(B) at all (though it does appear as a separate offence in the African Model Anti-Terrorism Law 2011), while financing any offence under the Malabo Protocol is found in the general provision on extended liability in article 28N. Only the ‘threat’ to commit terrorism is appropriately located in article 28G(B) (and does not appear in the general provision concerning all crimes).

Given this confusion, two interpretive approaches are available. The first would be to treat articles 28G(B) and 28N as mutually exclusive and regard the former as the only forms of extended liability applicable to terrorism. This straight-forward approach treats article 28G(B) as the more special law (lex specialis) relevant to terrorism, thus displacing the general provision applicable to other crimes, particularly given that most other crimes do not have their own specific modes of extended liability. As noted above, however, this would have the disadvantage of excluding one of the most important forms of extended liability for terrorism, namely terrorist financing, unless it can be characterized under some other mode (such as sponsoring, contributing to, or aiding).

The alternative approach is to consider, in the first instance, applying the terrorism-specific modes of extended liability in article 28G(B), then falling back on the general provision in article 28N to fill any gaps or plug any holes left by the former provision (for instance, concerning financing). The former provision remains the lex specialis but is flexibly supplemented (rather than displacing) by the latter.

In international law, there are three points of comparison for the Malabo Protocol. Firstly, the ICC Statute recognizes the following extended modes of criminal responsibility: commission and joint commission; ordering, soliciting, or inducing; aiding, abetting or assisting; intentionally contributing to the commission of a crime by a group; and attempt.Footnote ¹⁰¹

Secondly, most of the international counter-terrorism instruments recognize a number of bases of liability: (a) threats;Footnote ¹⁰² (b) attempts;Footnote ¹⁰³ (c) organizing or directing others;Footnote ¹⁰⁴ (d) participating as an accomplice;Footnote ¹⁰⁵ (e) knowingly assisting another to evade investigation, prosecution or punishment;Footnote ¹⁰⁶ (f) agreeing with one or more persons to commit an offence;Footnote ¹⁰⁷ or (g) otherwise contributing to or participating in the commission of an offence by a group.Footnote ¹⁰⁸ The latter mode is found in article 25(3)(d) of the ICC Statute, which was modelled on the Terrorist Bombings Convention 1997.Footnote ¹⁰⁹ The scope of extended criminal liability expanded over time.Footnote ¹¹⁰ Up to the 1990s, the sectoral treaties were limited to criminalizing commission, attempt, and participation. Since the Terrorist Bombings Convention 1997, it became an offence in new (and amended) treaties to organize or direct others to commit an offence, or to contribute in any other way to the commission of an offence by a group acting with a common purpose (article 2(3)).Footnote ¹¹¹

Thirdly, again in a terrorism-specific context, the UN Security Council has required states to bring to justice not only those who ‘perpetrate’ terrorist acts, but also those who participate in ‘financing, planning, preparation… or in supporting terrorist acts’.Footnote ¹¹² It has further required states to combat foreign terrorist fighters, namely by criminalizing those who (a) travel or attempt to travel to a foreign state for ‘for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training’; (b) finance such travel, or (c) organize, facilitate or recruit for such travel.Footnote ¹¹³ Finally, it has encouraged (but not required) states to prohibit incitement to terrorism.Footnote ¹¹⁴

D. Exclusion of Liberation or Self-Determination Struggles

Article 28G(C) of the Malabo Protocol provides that ‘the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts’. This exclusionary provision follows in the footsteps of the OAU Convention, the Arab League Convention, the OIC Convention, and the African Model Anti-Terrorism Law 2011. The OIC also continues to argue for the inclusion of such a provision in the UN Draft Comprehensive Terrorism Convention, while Pakistan (an OIC member) lodged a reservation upon signing the Terrorist Bombings Convention 1997 purporting to exclude self-determination movements from its application.

The provision is rooted in Africa’s historical experience of colonialism and decolonization struggles, as well as contemporary sympathizers for fellow travellers such as the Palestinians. Most African peoples have now attained independence, with the important exception of the people of Western Sahara, occupied by Morocco, and some small European possessions (such as the Spanish territories of Ceuta, Melilla and the Canary Islands near Morocco; Portuguese Madeira off the Moroccan coast; and the French Réunion off Madagascar). In this sense, in practice the provision may prove to be of largely symbolic value.

However, to the extent that African states become victims of foreign occupation (by other African states or foreign states), it will retain its significance. Africa has experienced a number of inter-state wars in recent years, including Uganda’s partial occupation of the Democratic Republic of the Congo, conflicts between Ethiopia and Eritrea, and foreign interventions in Libya. In this respect, article 28G(C) elaborates that liberation or self-determination struggles can include ‘armed struggle against colonialism, occupation, aggression and domination by foreign forces’.

The provision does not exempt liberation or self-determination struggles from other international or regional criminal liabilities, including for war crimes and crimes against humanity (including elsewhere under the Malabo Protocol). The provision does not, therefore, confer impunity on liberation movements, but reflects a political concern not to label and stigmatize such just causes as ‘terrorist’, even if their methods are excessive. Again, this reflects the acute sensitivities of the decolonization period, in which liberation forces were sometimes branded and delegitimized as ‘terrorists’ by colonial powers.

By contrast, none of the 18 or so international counter-terrorism treaties excludes liberation or self-determination violence, while regular UN General Assembly resolutions since the mid-1990s also do not exempt it. As such, certain conduct not regarded as terrorism under the Malabo Protocol may also still be criminal under transnational counter-terrorism instruments (regulating, for example, terrorist bombings, terrorist financing, nuclear terrorism, or attacks on targets such as diplomats, aircraft, airports, ships and maritime platforms, among others).

The precise legal scope of the provision must be determined by resort to the international law concepts it references. The term ‘peoples’ classically refers to the whole population of a colonized or occupied territory, rather than minority or indigenous groups forming a sub-set of it. A people may be represented by a movement recognized by the United Nations, or the relevant regional organization. The right of ‘self-determination’ entitles a people to ‘freely determine their political status and freely pursue their economic, social and cultural development’,Footnote ¹¹⁵ and African human rights law reiterates the right.Footnote ¹¹⁶ It can include a right to claim independent statehood, as well as other forms of political organization.

The provision further refers to ‘the struggle waged by peoples in accordance with the principles of international law’ (emphasis added). The latter qualifying phrase may be interpreted in two different ways. Firstly, it may refer to the international law right of peoples to wage a struggle for liberation or self-determination; that is, to the legal entitlement to pursue those goals. Secondly, it may refer to the legality of the means or methods by which a people struggles for those goals. Both are plausible interpretations and both limit the benefit of the provision to those acting lawfully (‘in accordance with’ international law). It is self-evident that the exclusionary provision cannot be claimed by those who do not enjoy a right of self-determination in the first place; it is more difficult to determine when a people entitled to self-determination would lose the benefit of the exclusionary provision because they utilized means or methods of struggle which were not in accordance with international law. (The Malabo Protocol’s other exclusionary provision, concerning armed conflict covered by IHL, excludes all hostile acts in conflict, not just those in conformity with IHL.)

The distinction is historically significant because of long running divisions amongst states within the United Nations about the permissible means of pursuing self-determination. Many decolonized states claimed that there existed a right of people to resort to armed struggle to secure self-determination, while primarily western states opposed such a right; an intermediate view held that liberation movements were entitled to use violence in response to violent repression of their self-determination right by a colonial power. Even if the former view were correct, it would still not exempt liberation fighters from other international criminal liabilities, including for war crimes, genocide or crimes against humanity. Again, on this approach the provision is more about political labelling than criminal liability per se.

Where such struggles involve armed conflicts under IHL, they will already be excluded by article 28G(D) of the Malabo Protocol (discussed below) – either as international conflicts between liberation forces and a state party to Additional Protocol I of 1977, or as non-international conflicts between state forces and a liberation movement qualifying as an organized armed group under IHL. Given the existence of a more specific exclusion for armed conflicts covered by IHL, article 28G(C) should be understood as excluding liberation or self-determination struggles that neither rise to the intensity of an non-international armed conflict, nor involve ‘organized armed groups’ participating in such conflicts.

Struggles beneath the intensity of armed conflict could include, for example, low level, sporadic or intermittent violence (including attacks on civilian or governmental personnel or objects), civil unrest or disorder, or violent protests, demonstrations, rallies and the like. Violence during armed conflicts by liberation movements that are not ‘organized armed groups’ could include, for example, the sporadic participation of civilians in hostilities, including individual resistance in occupied territory.

E. Exclusion of Acts Covered by IHL

The Malabo Protocol provides that ‘[t]he acts covered by international Humanitarian Law, committed during an international or non-international armed conflict by government forces or members of organized armed groups, shall not be considered as terrorist acts’ (article 28G(D)). In this respect it departs from the OAU Convention and instead follows the approach of the African Model Anti-Terrorism Law 2011. This is also consistent with the approach in recent international counter-terrorism treaties, which exclude the activities of armed forces during armed conflict, as those terms are understood under IHL, which are governed by that law.Footnote ¹¹⁷ The International Committee of the Red Cross has further endorsed this approach in the negotiations for the UN Draft Comprehensive Terrorism Convention.Footnote ¹¹⁸ The effect of the provision is to exclude such acts from being treated as terrorism and to defer to the special law (lex specialis) of IHL.

The provision applies where there exists an international or non-international armed conflict. Those categories are defined by IHL, particularly the Geneva Conventions of 1949, Additional Protocols I and II of 1977, and customary IHL. An international conflict involves military hostilities between two or more states, or an occupation of foreign territory even in the absence of hostilities.Footnote ¹¹⁹ An international conflict can also be constituted by hostilities between a state party to Additional Protocol I of 1977 and a self-determination movement representing a people,Footnote ¹²⁰ as is the case between Morocco (occupying the Non-Self-Governing Territory of Western Sahara) and Polisario (representing the Saharawi people).Footnote ¹²¹

A non-international conflict exists where there are ‘intense’ military hostilities between a state and an organized armed group.Footnote ¹²² Such conflicts may include civil wars within a state’s territory or hostilities between a state and a non-state group on another state’s territory. It can also include hostilities between national liberation or self-determination forces and a state which is not a party to Protocol I.

The Malabo Protocol excludes acts committed only by government (armed) forces or organized armed groups. These are significant limitations. The exclusion of acts by ‘government forces’ must be interpreted to refer to state armed forces, which can include regular military personnel as well as militias or resistance movements ‘belonging’ to the state and which are under responsible command, respect IHL, carry weapons openly, and display an identifying insignia.Footnote ¹²³ It would not exclude acts by any government officials (such as civilian police or intelligence officers, or other public servants), or loosely affiliated paramilitaries not controlled by the state.

Likewise, only acts by ‘organized’ armed groups are excluded and again the provision refers to IHL concepts. Under IHL, factors relevant in considering whether a group is ‘organized’ include: the existence of a command structure, disciplinary rules and mechanisms, and a headquarters; control of territory; the ability of the group to procure, transport and distribute weapons and military equipment, and to recruit and militarily train fighters; the ability to plan, coordinate and carry out military operations, including troop movements and logistics; the ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements (such as cease-fire or peace accords).Footnote ¹²⁴ Also relevant are the number of fighters and designated zones of operation.Footnote ¹²⁵

On the above test, it is certainly possible for ‘terrorist’ organizations to constituted organized armed groups involved in a non-international armed conflict. However, individual civilians who take a direct part in hostilities, for instance by sporadically attacking state forces, but who are not part of an organized armed group, will not be covered by the exclusion. Likewise organized criminal violence by gangs or drug cartels will not be excluded.

Moreover, the provision excludes acts by government forces and organized armed groups only where ‘committed in the course’ of an armed conflict. The act must therefore have a nexus to the conflict; not every act of violence that occurs in an area affected by conflict is excluded. For instance, a government soldier on weekend recreational leave who murders someone would not be excluded under the provision.

The effect of the provision is to completely exclude the relevant acts from the crime of terrorism under the Malabo Protocol. The exclusion applies where acts are ‘covered by’ IHL, but is not limited to acts that are in conformity with IHL (as proposed by the OIC in current negotiations over the UN Draft Comprehensive Terrorism Convention). Thus acts which comply with or violate IHL are equally excluded. Thus proportionate, discriminate attacks directed only against military targets are exempted, but so are deliberate attacks on civilians or perfidiously feigning civilian status to mount a suicide bombing attack against state forces.

This does not mean that the Malabo Protocol confers impunity on those who violate IHL. Rather, acts in armed conflict are left to be regulated by IHL, other international criminal laws (such as those on genocide, torture and crimes against humanity, and international human rights law insofar as it applies, including extraterritorially). IHL already prohibits, and often criminalizes as war crimes, much terrorist-type conduct in armed conflict.Footnote ¹²⁶ This includes, for example, deliberate or indiscriminate attacks on civilians and civilian objects; reprisals; the use of prohibited weapons (including incendiaries, or chemical or biological weapons); perfidy; attacks on cultural property, objects indispensable to civilian survival, or works containing dangerous forces (including dams, dykes and nuclear facilities); or through illegal detention, torture or inhuman treatment. The Malabo Protocol brings many war crimes under IHL within the jurisdiction of the African Court.

The Malabo Protocol does not, however, contain a further exemption for state military forces in peacetime that is found in some recent international counter-terrorism treaties. Some of these treaties include an exception for the activities of military forces (in peacetime) when exercising their official functions.Footnote ¹²⁷ Official duties could include law enforcement, evacuation operations, peace operations, UN operations, or humanitarian relief.

F. Exclusion of Certain Defences

The Malabo Protocol follows the OAU Convention (article 3(2)), recent international counter-terrorism conventions,Footnote ¹²⁸ and UN resolutionsFootnote ¹²⁹ in proclaiming that ‘[p]olitical, philosophical, ideological, racial, ethnic, religious or other motives shall not be a justifiable defence against a terrorist act’ (article 28G(E)). The foremost effect of this provision in a criminal law instrument is to preclude such motives from being pleaded as a defence to a criminal charge, so as to justify the accused’s conduct and exonerate them from liability.

The wording of the provision would not, however, prevent a convicted person from explaining their motives by way of mitigation in sentencing. Pleas in mitigation are not ‘defences’ as such, but part of the ordinary criminal process of calibrating the punishment to fit the crime, considering all relevant circumstances. There is plainly a difference in moral and legal culpability, for example, between a rebel wounding a member of the Gestapo in an attempt to overthrow Hitler in Nazi Germany, and a Boko Haram Islamist in Nigeria conscripting child suicide bombers to indiscriminately kill civilians.

Ordinary criminal law defences remain unaffected. Strangely, the Malabo Protocol does not mention the availability of criminal law defences to crimes within the Court’s jurisdiction, other than to exclude the relevance of official position, affirm command responsibility, and exclude the defence of superior orders (article 46B(2)-(4)). By contrast, the ICC Statute affirms the grounds excluding criminal responsibility as including mental disease or defect, intoxication, self-defence, duress, and other grounds deriving from international law and general principles of law (article 31). For example, there have been cases where hijacking by persons escaping imminent threats of death or serious injury as a result of persecution abroad have been excused by a defence of necessity.Footnote ¹³⁰ The issues concerning defences that would be available to suspects have been taken up by a different author for a different chapter contained in this volume.

There are two further possible legal implications of the exclusion of political or other motives under the Malabo Protocol. First, the provision might suggest that the crime of terrorism should not be regarded as a ‘political’ offence for the purpose of refusing an extradition request. The Malabo Protocol does not otherwise expressly ‘depoliticize’ its terrorism offence for extradition purposes – unlike some recent international counter-terrorism treaties.Footnote ¹³¹ Contrarily, the absence of an express provision depoliticizing terrorism in the extradition context could indicate that the issue remains one to be determined by national law – as is the case under many of the earlier international counter-terrorism treaties. The latter approach is preferably because restrictions on protections (such as the political offence exception to extradition) should not be made by implication in the absence of express words.

Secondly, the provision could similarly have a bearing on whether an offence is treated as ‘serious non-political crime’ in considering whether to exclude a person from refugee protection under article 1F of the Refugee Convention 1951. Again, the Malabo Protocol does not expressly purport to exclude all terrorist offenders from refugee status. The exclusion of political motives as a criminal defence is certainly a relevant factor, but as in the extradition context, not determinative. The UNHCR cautions that every act labelled as ‘terrorism’ is not automatically excludable under article 1F(b); the test is whether it constitutes ‘serious non-political crime’ in the context and circumstances.Footnote ¹³²

Notably, the AU’s African Model Anti-Terrorism Law 2011 recommends that national laws exclude any act that is the result of ‘advocacy, protest, dissent or industrial action’ and which does not cause certain types of serious harm to people or property.Footnote ¹³³ Strictly such provision would operate as an exception to the definition of terrorism, rather than as a democratic protest ‘defence’. It would have the same effect of precluding criminal responsibility for terrorism. It remains to be seen whether such exclusion could be included in any Elements of Crimes of Rules of Procedure developed by the AU to give effect to the Malabo Protocol.