How to Get Yourself Convicted of Terrorism

by Kevin Jon Heller

Just follow the lead of Henry Okah, a Nigerian national recently convicted in South Africa (under universal jurisdiction) of terrorism-related offences in the Niger delta. Here are the key paragraphs from the trial court’s decision:

[28] The correctness of copies of 3 journals kept by the accused in his own handwriting was admitted. In these journals the accused made notes in from January to September 2010 of names, military clothing, equipment and hardware. For example, he writes:

“Battle jackets… boots… boats, rounds… walkies…engines… balaklavas… water bottles… tee shirts, caps, belts, camo(flage) shorts… TNT… backpacks… binoculars nightvision… badges… bulletproof vests… tents… VHF radios … generators… rechargeable lamps… fuel… ordering through [another] the construction of a gunboat with protector plates for the gunmen… rifle slings… the contact numbers of Military Surplus Stores CC… compasses… BMG assault weapons… RPG …SAM …grenade launchers… mortars… landmines… anti-tank missiles… shotguns… handguns… notes on military tactics inter alia the use of explosives, weaponry and sabotage… and notes on counter insurgency.. names of his co-militants like Tompolo, Stoneface, Boyloaf, Moses, Chima, Raphael, VIP, Stanley…”

[29] Also admitted is the fact that an email address and account was registered with Yahoo with a login name “nigdelunrest” in the name of “Mr. Jomo Gbomo.”

I hear iamalqaeda [at] gmail [dot] com and loyaltalibansoldier [at] mac [dot] com are still available. Any takers?

Hat-Tip: Chris Gevers, University of KwaZulu-Natal, who blogs at War and Law.

http://opiniojuris.org/2014/03/30/get-convicted-terrorism/

3 Responses

  1. A UJ terrorism case…very interesting. Unlike Yunis ,there seems to be no passive personality aspect here, pure extradite or punish UJ. 

  2. Eugene,

    Yes, absolutely. South Africa has an exceptionally broad universal jurisdiction regime — and one that has real teeth, because the government can be compelled to act on a private complaint, as in the landmark “Torture Docket” case involving Zimbabwe. See here.

  3. *Apologies for poor formatting in previous post.
     
    Thanks for the hat-tip KJH. 
     
    Eugene: The courts didn’t formerly rely on passive personality for the main charge, although there were ‘related offences’ charged involving South African nationals and business interests.
     
    So, UJ indeed, but not as ‘pure’ as it might have been: the Court’s decision is muddied by that fact that it appears to have relied on two contradictory ‘UJ’ provisions in the Terrorism Act
     
    The first (section 15(1)) states that SA courts will have jurisdiction over ‘specified offences’ – even if committed abroad – if the accused was arrested in the territory of the Republic. So far so good, however ‘specified offences’ are defined as inter alia extraterritorial offences “which [constitute] an offence under the law of another state [presumably the territorial state] and which would have constituted [terrorism] … had that activity taken place in the Republic”. To my mind, at least, that conditions SA’s UJ in Okah to offences that were also offences under the law of Nigeria (loosely ‘double criminality’). 
     
    There is another contender for UJ however (section 15(2)), which states in relevant part that any act [NOTE: not ‘specified offence’] committed outside the Republic shall, regardless of whether or not the act constitutes an offence or not at the place of its commission, be deemed to have been committed in the Republic IF – and this is the kicker – if 
     
    (a) that act affects (sic) or is intended to affect a public body, any person or business in the Republic;
     
    (b) that person is found to be in the Republic; and
     
    (c) that person is for one or other reason not extradited by the Republic or if there is no application to extradite that person.”   
     
    I read those conjunctively (i.e (a), (b) and (c) must be met). If that’s correct, it conditions SA’s UJ – if we can still call it that – in Okah to acts that effect SA interests/persons or businesses (but the requirement of the offence being an offence under Nigerian law is omitted).
     
     Crucially, however, when citing section 15(2) the Court omitted the first requirement (that the act effect SA interests/persons/businesses) – converting an ‘effects-based’ provision into a UJ provision that merely requires (b) and (c) to be met. It did so without explanation – it merely inserted ‘…’ – presumably on the assumption that the requirements were disjunctive, notwithstanding South African jurisprudence suggesting that such provisions must be read conjunctively.
     
     Even if the Court’s interpretation of section 15(2) is correct – and we have two different UJ provisions in the Terrorism Act – the immediate difficulties with the judgment in Okah are that (i) the Court cites both section 15(1) and section 15(2) without distinction, and (ii) it did not lead evidence directly on the relevant conditions for either–  ‘double criminality’ and/or ‘effects requirement’.
     
    Even if I’m only right about half of that (not an uncommon occurrence), there’s mud (blood) in the water…
     
     
    KJH: The Torture Docket case has been appealed by the State, it has already lost the appeal in the Supreme Court of Appeal but the matter will be heard by the Constitutional Court in late May. What this space… 
     

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