The Scope of Definition of a Terrorist Act under Ethiopian Law: Appraisal of its Compatibility with Regional and International Counterterrorism Instruments

Author:WD Kassa
Position:LL.B, LL. M., PhD candidate at Flinders University Law School. Email: Wondwossen.kassa@flinders.edu.au.
Pages:371-405
SUMMARY

While regional and international human rights institutions claim that the definition of a terrorist act under the Anti-terrorism Proclamation No. 652/2009 is overly broad as a result of which citizens not involved in a genuinely terrorist act are prosecuted and jailed, the Ethiopian government defends the law pointing that it is borrowed from jurisdictions with advanced legal system and rule of... (see full summary)

 
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371
The Scope of Definition of a Terrorist
Act under Ethiopian Law:
Appraisal of its Compatibility with Regional
and International Counterterrorism Instruments
Wondwossen Demissie Kassa
Abstract
While regional and international human rights institutions claim that the
definition of a terrorist act under the Anti-terrorism Proclamation No.
652/2009 is overly broad as a result of which citizens not involved in a
genuinely terrorist act are prosecuted and jailed, the Ethiopian government
defends the law pointing that it is borrowed from jurisdictions with
advanced legal system and rule of law. This article is concerned with this
debate and suggests how to deal with it. The article employs definitions
under relevant regional and international counterterrorism legal instruments
as standard to examine the scope of the domestic definition. With regard to
some of its elements, the proclamation’s definition is broader than the
standard definitions; in other aspects it is narrower. The regional and
international instruments simply indicate what states should proscribe as a
terrorist act without further prohibiting them from including other conduct
with in domestic definitions. As such, being broader per se does not render
the definition incompatible with regional and international definitions. On
areas where the definition is narrower, its strict application would mean
non-prosecution or, in the event of prosecution, acquittal of persons who
would have been treated as terrorist under regional and international law.
This has a direct bearing on Ethiopia’s counterterrorism obligation.
Key words
Definition of a Terrorist act, Ethiopian anti-terrorism proclamation, OAU
Convention on the Prevention and Combating of Terrorism, Security
Council Resolution 1373, International Convention for the Suppression of
Financing of Terrorism.
DOI http://dx.doi.org/10.4314/mlr.v8i2.4
LL.B, LL. M., PhD candidate at Flinders University Law School. Email:
<Wondwossen.kassa@flinders.edu.au>. I am grateful to the two anonymous
reviewers for their scholarly insights and constructive comments.
372 MIZAN LAW REVIEW, Vol. 8, No.2 December 2014
Introduction
International and regional legal instruments urge states to prevent the
commission of a terrorist act through, inter alia, criminalization. Although
some are sceptical about the need and motive for promulgation of the
Ethiopian anti-terrorism Proclamation No. 652/2009 (hereafter the
Proclamation),1 from a legal point of view, by criminalizing a terrorist act,
Ethiopia discharges its responsibility under international law.
Article 3 of the Proclamation provides for a definition of a terrorist act.
The definition establishes the threshold of a “terrorist act” from a legal
perspective. This vital first step has been controversial ever since the law
was presented in its draft form.2 While regional and international human
rights institutions express concern on the broadness of definition of a
terrorist act, officials of the Ethiopian government and some others defend it
as being not broader than definitions in other jurisdictions.
This article deals with scope of definition of a terrorist act under the
proclamation in the following order. The first section briefly outlines the
controversy surrounding the scope of the definition and how the purported
lack of universally applicable definition of a terrorist act could be a major
obstacle to undertake a meaningful assessment on the scope of definition of
a terrorist act in a domestic legislation. Furthermore, it examines the
plausibility of the government’s argument to justify the reach of the
definition. Section 2 proposes two definitions of a terrorist act (one
international and the other regional) that can be used as standard to evaluate
the scope of the definition under the proclamation followed by analysis of
their elements in Section 3. The fourth section discusses the definition of a
terrorist act under the Proclamation. The discussion, not being intended to
provide an in-depth analysis and interpretation of the definition3, is confined
1 See: Ethiopian Political Parties Position on the Anti-Terrorism Law, parts 1-3.
Retrieved from: <https://www.youtube.com/watch?v=urSqiLnYzQ0 ;
https://www.youtube.com/watch?v=Nr76bQEtnlA ;
http://www.ethiopian.tv/ethiopian-political-parties-position-on-the-anti-terrorism-
law-part-3/>.
2 Human Rights watch (2009), An Analysis of Ethiopia’s Draft Anti-Terrorism Law
Updated, Retrieved from
<http://www.hrw.org/sites/default/files/related_material/Ethiopia%20CT%20Law
%20Analysis%20June%202009_2.pdf >.
3 For a brief analysis on how some parts of the definition could be applied broadly
see: Hiruy Wube (2012), “Some Points on the Ethiopian Anti-Terrorism Law
The Scope and Definition of a Terrorist Act under Ethiopian Law: … 373
to the extent needed to evaluate the scope of the definition. Section 5 is the
actual appraisal of the definition. It examines the definition vis-à-vis the
proposed standard definitions, and reveals a mixture of narrowness and
broadness therein. The section further examines the effect, on its validity, of
the definition’s deviation from the standards. The article winds up with a
conclusion.
1. Controversy on the scope of the definition and the
problematic nature of judging it
1.1 The controversy
Regional and international human rights institutions have expressed concern
on the broadness of definition of a terrorist act. In its analysis of the
proclamation, Human Rights Watch identifies what it considers as
problematic areas of the legislation,4 of which one is its ‘extremely broad’
definition of a terrorist act. In its Comment on Ethiopia’s Anti-Terrorism
Proclamation, Article 19 identifies over-broadness of the definitional
provision as particularly worrying.5 David Shinn and Thomas Ofcansky
label the definition as broad.6 Similarly, Hiruy points out some of the
elements of the definition that would give it a wider reach.7 Many who do
not agree with the conviction of journalists and opposition political party
leaders under the proclamation attribute the conviction to the over-broadness
of the definition.8
from Human Rights Perspective”, Journal of Ethiopian Law, Vol, 25 No.2, pp.
43-46.
4 Human Rights watch (2009), supra note 2, pp. 1, 4.
5 Article 19 (2010), Comment on Anti-Terrorism Proclamation, 2009, of Ethiopia,
pp. 3,4. Retrieved from:
<http://www.article19.org/data/files/pdfs/analysis/ethiopia-comment-on-anti-
terrorism-proclamation-2009.pdf>.
6 David H. Shinn, and Thomas P. Ofcansky (2013), Historical Dictionary of
Ethiopia, (Lanham Maryland: Scarecrow press), p. 388.
7 Hiruy Wube (2012), supra note 3, pp. 43-46.
8 In 2012 UN High Commissioner for Human Rights Navi Pillay, denouncing
conviction and sentencing of journalists and opposition figures, said she is
seriously alarmed about the current climate of intimidation against human rights
defenders and journalists in Ethiopia, resulting from the use of “overly broad”
laws on terrorism and civil society registration. United Nations Human Rights
(2012), Climate of intimidation against rights defenders and journalists in
Ethiopia. Retrieved from:

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