Transcript
ARC Report-8: Terrorism Chapter-1 Why this is an important issue? Terrorism signifies an act caused by hostile elements like terrorists and extremists involved in taking hostages, hijacking of airplanes and severely disturbing public order and administration etc. This has become one of the most significant issues of Crisis Management. In today’s world, terrorism has transcended pure crisis management and public order issues and is entangled in intricate web of organized crimes, illegal financial transfers and trafficking in arms and drugs, which poses a grave threat to national security. What makes it deadlier? Means of modern communication, increasing use of modern technology, modern weapons and tactics have enabled merchants of terrorism spread their tentacles far and wide spawning a whole country or countries at times. [Examples can be sighted for above like use of PETN powder hidden in electronic or other goods which goes undetected even at high security places like airports, bio-terrorism, use of smart phones etc] India being a multi-cultural, liberal and democratic country and considering its geopolitical situation is particularly vulnerable to the acts of terror. Statistics show that it’s Indians who have suffered maximum casualties at the hands of terrorists.
What basic needs to be done? To tackle this unprecedented threat of terrorism, extra-ordinary and multi-pronged actions by all organs of government and society is needed. There is a dire need to first of all strengthen the hands of security forces in fight against corruption.
Chapter 2: Types, Genesis and Definition History: Number of examples right from Roman Empire to “Reign of Terror” in France to World War II to today’s Al-Queda etc number of examples cited. Most of them are well known and may not need to be repeated here. Types of Terrorism: 1. Ethno-Nationalist Terrorism -Deliberate act of violence by a sub-national ethnic group to advance its cause. -Dominated the scene particularly after the World War-II for almost 50 years till Religious terrorism emerged on the scene. -Ex. Tamil Nationalist groups in Sri Lanka, Insurgent groups in North-East
2. Religious Terrorism Motivated by religious imperatives. Largely dominant form today. Considers violence as a “divine duty” and embraces different means of legitimization. 3. Ideology Oriented Terrorism Use of a particular ideology to support acts of terror and violence. 3.a Left Wing Extremism Violence against the ruling elite mostly by the peasant class motivated by what are called Leftist ideologies. Basis was provided by Karl Marx and Engels. Supported by writings and Speeches of leaders like Lenin and Mao Zedong. Leftist ideologies believe that all the existing social relations and state structures in the capitalist society are exploitative in character and a revolutionary change through violent means is essential. Ex. Maoist groups in India and Nepal 3.b Right Wing Extremism They seek to maintain the status-quo or to return to some past situation that they feel should have been conserved. Sometimes assume ethnic/racist character too. They may force the government to acquire a territory or to intervene to protect the rights of an ‘oppressed’ minority in a neighboring country (i.e : the Nazi Party in Germany). Violence against migrant communities also comes under this category of terrorist violence. Ex. Nazism in Germany, Fascism in Italy. 4. State Sponsored Terrorism -It is as old as terrorism. Its use on massive scale returned in 1960-70s. -In recent times, this is becoming a deliberate instrument of foreign policy. What distinguishes it clearly from others is that it is that it is initiated to obtain certain clearly defined foreign policy objectives rather than grabbing media attention or targeting the potential audience. -It is most effective means of terrorism from the perspective of perpetrator. Ex. US amd Russia sponsored number of such activities during cold war era. 5. Narco-Terrorism -This can fall in the category of either types of Terrorism’ or ‘Means of Terrorism’, depending on how it is defined. -Though initially used in the context of drug trafficking related terrorism in South America, the term has come to be associated with terrorist groups and activities around the world and more so in the Central and South-East Asia. -Narco-terrorism combines two criminal activities; drug trafficking and terrorist violence. -In a survey conducted by the United Nations, links between drug traffickers and terrorist groups were observed in 19 out of 38 countries. Position of “Terrorism” in India Terrorism as an offence does not figure in the Indian Penal Code of 1860 as amended from time to time. In India, the first special law which attempted to define terrorism was the Terrorist and Disruptive activities (Prevention) Act, 1987, which was followed by the Prevention of Terrorism Act, 2002 (POTA). With the repeal of the latter in 2004, the
Unlawful Activities (Prevention) Act, 1967 was amended to include the definition of a ‘terrorist act’. In additional to traditional tactics like weapons, bombs, IEDs, there are new looming threats like Weapons of Mass Destruction (WMD) and cyber-terrorism. Apart from these, weapons like nuclear weapons and chemical weapons can carry out mass scale destruction in fraction of seconds and disrupt public life and infrastructure immensely. Very recently, Al-Qaeda claims to have acquired chemical weapons that can cause serious damage to its potential enemies. Bio-terrorism It is one of the major side effects of advancements in biotechnology and its access to terrorist minded people. Bio-terrorism agents are spread though air, water or food. Terrorists use biological agents because they can be extremely difficult to detect and do not cause illness for several hours to several days. The bio-terrorism tactics today are, however, much more sinister and include biological weapons using germs to spread life threatening diseases among the targeted groups. During 1st World War, Germany is believed to have used Antrax bacteria against livestock and military personnel of enemy. The legacy of such use has been continuing through various wars including Gulf war to latest Afghan war. Cyber-terrorism It is aimed at performing criminal activities using computers and telecommunication capabilities. It typically involves hacking into websites and theft of crucial data. Such attacks may be instigated for political, religious or military reasons. Recent attacks on Google mail servers by hackers in China is a form of cyber-terrorism cum state sponsored terrorism. Suicide Terrorism This is the most ominous aspect of the emerging terrorist tactics. Although India has not witnessed many attacks of suicide terrorism (except a few notables like Rajiv Gandhi assassination), In India’s neighborhood i.e. Sri Lanka, large number of LTTE volunteers have been carrying out suicide missions. The scenario in Afghanistan and Pakistan is no different.
Chapter-3: Terrorism in India Jammu & Kashmir The most concerned area for India. Ever since independence, this problem has haunted India. Insurgent activities are being encouraged by secessionist tendencies. This receives cross border help and number of people indulged in infiltration activities goes on increasing. Many times innocent people are targeted and forced to flee from the state. The rise of Islamist fundamentalism and emergence of Al-Qaeda has added another dimension to the insurgency in Jammu & Kashmir. Plethora of organizations thriving on such fundamentalist ideology has taken birth in last few decades. They have been regularly carrying out activities like bomb blasts in different parts of a country and the extent of their reach even dashed Indian Parliament.
The Annual Report of the Ministry of Home Affairs for 2006-07 shows that there has been a change in the violence profile after April 2006 with soft targets like minority groups, tourists and migrant laborers Government of India has been endeavoring to tackle the problems of the troubled State through a multi-pronged strategy with a holistic approach calculated to address areas of concern on the political, security, developmental and administrative fronts. Here are some of the important steps: Facilitating people-to-people contact between residents of Jammu & Kashmir and those of POK; Secretary, ministerial level dialogues. Confidence Building Measures. Revitalizing the Unified Command mechanism (introduced first during 1997). Ban on terrorist outfits and appoint special police officers in selected areas for careful screening. Relief measures for victims of violence Encouraging return of Kashmiri Pandit. Special facilities for people for working in Kashmir Valley. s
North-Eastern States Large history of conflicts. Manifestation of ethno-nationalism quite often expressed through violence, led to the formation of some of the present States through various stages of evolution during the postIndependence period. Although the founding fathers who framed the Indian Constitution had taken into account the special nature of the problems in this region and had provided for innovative models of Autonomous Councils and other measures, the complex pattern of conflicts in the NorthEastern States still continues. As a result, there have been serious impediments to the economic progress as well as other developmental activities in the region much to the detriment of the people living in these areas. Left Wing Extremism Fascinated by the revolutionary ideas of Marx and Mao, Naxal movement has gradually established itself in different parts of India. In some parts it even claims to have a broad mass base. Maoists are running not just parallel courts, parallel programs but parallel government itself. In some areas they have turned resorted to extremely violent means and hence have disturbed law and order completely. Attempts are being made to tackle with them at both fronts of development and police front.
Strategy to Counter Terrorism: 1. The objective of the national security strategy has to be the creation and maintenance of a security environment which would enable the nation to provide opportunities to all individuals to develop to their fullest potential.
2. Our national security strategy needs to be built round the concept that nothing must impede our drive towards the goal of eradicating poverty and raising everyone in the country above the poverty line. 3. Multi-pronged approach is needed where socio-economic development is a priority so that vulnerable sections of society do not fall prey to the propaganda of terrorists promising them wealth and equity. Administration, particularly service delivery mechanism must be responsible to legitimate and long standing grievances of the people so that these are redressed promptly and are not exploited by terrorist groups. 4. To deal with menace of terrorism, comprehensive strategy at multiple fronts involving different stakeholders – Government, Political parties, civil society, and security agencies is needed. Political Consensus: Political parties must arrive at national level political consensus to devise the broad contours of planned strategy. This must be realized with intense state and centre cooperation parties should rise above their sectarian and petty electoral compulsions. Good Governance: Priority to the development work, its actual implementation on ground amidst corruption free environment is needed. Respect for Rule of Law: While dealing with any situation, law of the land must be respected. If the law is inadequate to deal with existing situation, new laws may be enacted. Appropriate Legal Framework: Terrorism is an extraordinary issue. Ordinary laws of land are not adequate to curb the terrorism. It needs special laws and effective enforcing mechanism, but with sufficient safeguards to avoid its misuse. Capacity Building: Extend to intelligence gathering machinery, security agencies, civil administration and society at large. These recommendations are very much commensurate with Global Counter Terrorism strategy adopted by United Nations General Assembly in 2006. This strategy is based on four pillars: 1. Address conditions conductive to spread of terrorism for instance lack of rule of law, national and religious discriminations, human rights violations etc 2. Prevent and combat terrorism by denying terrorists means to carry out attacks. 3. Build state capacity to combat terrorism. 4. Ensure respect for human rights for all and the rule of law as the fundamental basis to fight against terrorism. 4. Dealing with Terrorism: Legal Framework Recommendations:
1. A comprehensive and effective legal framework to deal with all aspects of terrorism
needs to be enacted. The law should have adequate safeguards to prevent its misuse. The legal provisions to deal with terrorism could be incorporated in a separate chapter in the National Security Act, 1980.
2. There is need to define more clearly those criminal acts which can be construed as
being terrorist in nature. The salient features of this definition should inter alia include the following:
i. ii. iii. iv. v.
Use of firearms, explosives or any other lethal substance to cause or likely to cause damage to life and property and essential infrastructure including installations/establishments having military significance. Assassination of (including attempt thereof) public functionaries. The intent should be to threaten the integrity, security and sovereignty of India or overawe public functionaries or to terrorize people or sections of people. Detention of any person or threat to kill or injure any person to force the government to act or abstain from acting in a particular manner. Providing/facilitating material support, including finances, for the aforesaid activities. Commission of certain acts or possession of certain arms etc. by members or supporters of terrorist organizations which cause or are likely to cause loss of life, injury to a person or damage to any property.
Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond unless the Court gives the Public Prosecutor an opportunity of being heard; ii. Where the Public Prosecutor opposes the bail application of accused to release on bail, no person accused of an offence punishable under this Act or any rule made there under shall be released on bail until the Court is satisfied that there are grounds for believing that the accused is not guilty of committing such offence. Provided that after the expiry of a period of one year from the date of detention of the accused for an offence under this Act, the provisions of sub-section (i) of this section shall apply. Iii. A Review Committee should review the case of all detenus periodically and advise the prosecution about the release of the accused on bail and the prosecution shall be bound by such advice.
3. Regarding grant of bail, the law should provide that:
i.
4. For terrorist and other related offences, it should be provided that Section 167 of the
CrPC shall apply subject to the modification that in sub-section (2), the references to “fifteen days”, “ninety days” and “sixty days”, wherever they occur, shall be construed as references to “thirty days”, “ninety days” and “ninety days” respectively.
5. Confession before the police should be made admissible as recommended in the
Report on Public Order. But this should be done only if comprehensive police reforms as suggested by the Commission are carried out. Till such time confessions should continue to be made before .
6. The following legal provisions should be included regarding presumptions:
i.
If it is proved – That the arms or explosives or any other dangerous substance were recovered from the possession of the accused and there is reason to believe that such arms or explosives or other substances of similar nature, were used in the commission of such offence; or that by the evidence of an expert the fingerprints of the accused, or any other definitive evidence were found at the site of the offence or on anything including arms and vehicles used in connection with the commission of such offence the Court shall draw adverse inference against the accused. ii. If it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence of terrorism, the Court shall draw adverse inference against the accused.
7. A statutory Review Committee should be constituted to examine each case
registered, within 30 days of its registration. The Review Committee should satisfy itself that a prima facie case has been made out by the investigation agency. This Committee should review each case every quarter.
8. Provisions for constitution of Special Fast Track Courts exclusively for trial of
terrorism related cases may be incorporated in the law on terrorism. Other specific provisions related to such Special Courts may also be incorporated. Such Courts may be set up as and when required.
9. Provision for penalizing unauthorized possession of certain specified arms and
ammunition in notified areas and unauthorized explosive substances, weapons of mass destruction and biological or chemical substances of warfare in notified as well as non-notified areas, may be incorporated in the law on terrorism. It should be ensured that this Division of the CBI is staffed by personnel of proven integrity and who are professionally competent and have developed the required expertise in investigation of terrorism related offences. The autonomy and independence of this agency may be ensured through a laid down procedure of appointment and assured fixed tenure for its personnel.
10.
Terrorist activities in most cases require substantial financial support. Such activities generally involve the propagation of an ideology advocating militant action to achieve their goals, increasing the number of devoted followers willing to carry out militant action in furtherance of such goals, acquisition of and training in use of arms and explosives, planning and execution of such militant action etc. All these necessarily require significant funding. Apart from the proceeds of illegal operations, such funding could be sourced even from the proceeds of lawful activities. Financial contributions to terrorist organizations Contributions could also be made to some non-profit or charitable institutions acting as a front for terrorist organizations Funds may also be provided by laundering the proceeds of crime. Terrorist organizations could also finance their activities by either resorting to or working in concert with cartels
This brings into focus the crucial issue of transfer of funds – both within and without the national boundaries. International organized crime makes use of a wide range of methods and networking to transfer funds with a view to launder the proceeds of crime. However, two features distinguish the activities related to money laundering operations with those related to financing of terrorist activities. 1. In case of money laundering, the activity begins with the generation of proceeds from unlawful activities/crime and ends with their conversion into legal asset. On the other hand, financing of terrorist activities could be from legal or illegal funds and it culminates when it reaches the perpetrators of a terrorist act. 2. In the case of money laundering, even if the proceeds of unlawful activities/crime get ‘laundered’, enforcement authorities could undo the effect on the basis of post-facto investigation. In case of terrorist finance, once the finance chain is completed and an act of terrorism has taken
place, post facto investigation is limited to generating evidence leading to conviction The main planks of a strategy to deal with the financial aspects of terrorist activities tend to involve: Asset recovery and obstruction powers Legal penalties against persons/organizations involved in financing terrorism Adoption of diligent customer identification programmes and standard record keeping procedures by financial institutions/agencies Reporting of suspicious financial activity by individuals and institutions Anti-money laundering measures Capacity building and coordination mechanisms between agencies involved International cooperation
International Money Laundering Abatement and Financial Anti-terrorist Act of the USA PATRIOT Act emerged out of certain congressional findings. Briefly, these were: Money laundering provides the fuel that permits transnational criminal enterprises to conduct and expand their operations, money laundering and the defects in financial transparency are critical to the financing of global terrorism, legitimate financial mechanisms and banking relationships are subverted by the money launderers to move the proceeds of crime, certain national jurisdictions offer ‘offshore’ banking and related facilities which are designed to provide anonymity. Coupled with weak supervisory and enforcement regimes, these are suited to the movement of funds related to narcotics trafficking, terrorism, etc. They also pose challenges to tracking the trail of money.
Measures in India The provisions related to money laundering are contained in the Prevention of Money-Laundering Act, 2002 (PMLA) as amended by the Prevention of MoneyLaundering (Amendment) Act, 2005.
“Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property shall be guilty of offence of money-launder.” Thus, money-laundering is confined to activities/offences connected with ‘proceeds of crime’
After the PMLA was brought into force from 1 st July, 2005, the reporting regime with regard to financial transactions as envisaged in the Act also came into force. This also led to the creation of the Indian Financial Intelligence Unit (FIU-IND). The regulations include maintenance of record of prescribed transactions, furnishing information to FIU-IND in the prescribed format. FIU-IND analyses these reports and disseminates the information to appropriate enforcement/intelligence agencies. As the volume of transactions reported would see a continuous growth accompanied by an increase in their relative complexity, the FIU-IND would have to be strengthened organizationally to meet the challenges.
There is need to strengthen the FIU-IND urgently and to build capacity to meet its present and future challenges as required. Co-ordination: Apart from the specific inputs provided by FIU-IND on transactions suspected of being related to money laundering, the main forum for co-ordination and co-operation among various agencies dealing with economic offences available to the Directorate of Enforcement is the Regional Economic Intelligence Councils (REICs). These REICs are located at 18 regional centres throughout the country and consist of designated officers of CBDT, CBEC, CBI, ED, heads of related agencies of the Union and State Governments in the region, RBI, SBI, Registrar of Companies, etc. The REICs not only share information related to tax matters but also cover all areas of economic intelligence focusing on real time dissemination of information. The functioning of the REICs is coordinated by the Central Economic Intelligence Bureau (CEIB) The CEIB acts as the nodal agency for economic intelligence. Measures to Block the Flow of Funds for Financing Terrorist Activities Making terrorist finance an offence: TADA: Under TADA (as mentioned in Chapter 4 earlier) holding property derived or obtained from any terrorist activity or acquiring them through terrorist funds was an offence. POTA: Under POTA also, holding property derived or obtained from any terrorist activity or acquiring them through terrorist funds was an offence. POTA also made the holding of proceeds of terrorism illegal The Unlawful Activities (Prevention) Amendment Act, 2004 also provides for punishment for knowingly holding a property derived or obtained from the commission of a terrorist act or acquired through terrorist funds.
Blocking the channels of financing terrorist activities Owing to the fact that carrying out of any terrorist act would necessarily involve financial backing, any strategy to counter financing of terrorism should not only contain measures regarding investigation and prosecution of the offence after the commission of any terrorist act, but also measures providing legal and institutional basis to gathering of
intelligence/information leading to carrying out of investigations and blocking of funds and Measures against Financing of Terrorism102 material support essential for the commissioning of such acts. In other words, apart from making the raising of funds for terrorism an offence, focus has to be on prevention of such acts also. Information/intelligence on terrorist financing activities could be, and are actually being, generated by different intelligence and investigation agencies which are engaged in general or specific fields of activities. Financing of terrorist activities can be done through a multitude of modes, like: (a) value transfers through trading transactions, (b) hawala transactions, (c) currency smuggling, (d) counterfeiting, (e) defrauding financial institutions and the public at large, (f) false claim of exemptions, (g) false claim of refunds, (h) using non- profit organizations and charities as a vehicle (i) drug trafficking and narcotics trade, (j) investments and trading in capital and commodities markets (including foreign investments), (k) transactions in real estate etc. The Commission is of the view that owing to the scope for their abuse, the investigation agencies having the authority to inquire into such activities as mentioned above, need to devote more resources and manpower to identify suspected terrorist financing activities so that information could be provided to intelligence agencies and authorities empowered to investigate terrorism cases.
While financing of terrorist activity through ‘conventional’ methods such as currency smuggling, counterfeiting, drug-trafficking, frauds, use of informal channels of money transmission (‘hawala’) etc. continues, methods such as online payments, trade-based money laundering, abuse of charities, false claims etc. have increasingly assumed centrestage in the recent years. As investigation of transactions related to such activities requires specialized investigation techniques and skills, there is need to develop multi-faceted investigation teams in the agencies charged with the responsibility of conducting investigations under the anti- terrorist law. Recommendations a. The new legal framework on terrorism may incorporate provisions regarding freezing of assets, funds, bank accounts, deposits, cash etc. when there is reasonable suspicion of their intended use in terrorist activities. Such actions may be undertaken by the investigating officer with the prior approval of a designated authority, subject to adequate safeguards. b. A specialized cell may be created in the proposed National Counter- Combatting Terrorism terrorism Centre drawing upon expertise from the Union Ministries of Finance and Home Affairs and the Cabinet Secretariat for taking concerted action on the financial leads provided from information gathered by various sources. Further, different investigation agencies dealing with financial transactions may set up anti-terrorist finance cells within their organizations to augment the efforts of intelligence agencies involved in counterterrorism activities. c. For speedy investigation into the financial aspects of specific cases/group of cases related to terrorist activities, dedicated teams may be formed within the agencies charged with the responsibility of investigating into offences related to terrorism. This may be accomplished by inducting officers having specialization in different aspects of financial investigation for short periods, say three to six months. A protocol for achieving this may be arrived at
between the concerned Union and State Ministries/Departments to facilitate such capacity building and strengthening the effectiveness of the counter-terrorist measures.