2nd ARC Report – Combatting Terrorism: Protecting by Righteousness

The 2nd ARC Report on Combatting Terrorism: Protecting by Righteousness delineates principled approaches and recommendations to counter terrorism while upholding ethical standards and safeguarding fundamental rights.

THE CONCEPT OF TERRORISM

• According to UN Guidelines, terrorism is a method involving repeated violent actions, utilized by (semi) clandestine individuals, groups, or state actors for idiosyncratic, criminal, or political reasons. Unlike assassination, the main targets of violence are not the direct targets, and the immediate human victims are chosen either randomly (targets of opportunity) or selectively (representative or symbolic targets) from a target population. They serve as message generators, and communication processes involving threats and violence are used to manipulate the main target audience, turning it into a target of terror, demands, or attention, depending on whether intimidation, coercion, or propaganda is the primary goal.

TERRORIST ACTS IN INDIA

• Any individual who, with the intent to threaten the unity, integrity, security, or sovereignty of India, or to strike terror in the people, carries out acts using explosives, firearms, poisons, noxious gases, or any hazardous substances. The acts aim to cause death, injuries, property damage, destruction, or disruption of essential supplies or services. This includes damaging or destroying property or equipment used for the defense of India or any other government purposes, detaining individuals, and threatening harm to compel governments to act or refrain from acting, thereby committing a terrorist act.

DIFFERENT TYPES AND MEANS OF CARRYING OUT TERROR ATTACKS

Ethno-Nationalist Terrorism

• This form gained prominence post-World War II and dominated the global terrorist agenda for over 50 years until the rise of religious terrorism.

Terrorism manifests in various forms, each driven by distinct motivations and ideologies:

• This involves deliberate violence by a subnational ethnic group to advance its cause, typically focusing on creating a separate state or elevating its status over other ethnic groups. Examples include Tamil Nationalist groups and insurgent activities in North East India.
• Religious Terrorism: Perpetrators are motivated by religious imperatives, viewing violence as a divine duty or sacramental act. Religious terrorism uses distinct means of legitimization and justification, making it more destructive.
• Ideology-Oriented Terrorism: Left-wing and right-wing terrorism are driven by ideological beliefs. Leftist ideologies seek revolutionary change through violent means, as seen in groups like the Red Army Factions and Maoist groups. Right-wing groups, on the other hand, often aim to maintain the status quo or conserve past situations, sometimes adopting ethnic or racist characteristics.
• State-Sponsored Terrorism: Initiated to achieve defined foreign policy objectives, state-sponsored terrorism operates with fewer constraints, causing greater casualties. Countries like Iran, Iraq, Sudan, Libya, and North Korea have engaged in sponsoring political violence in perceived enemy countries. India has faced this issue with Pakistan.
• Narco-Terrorism: Narcotics traffickers attempt to influence government policies through systematic threats or violence, combining drug trafficking and terrorist activities. Motivated by economic gains, this form of terrorism is prevalent in Central and Southeast Asia. In India, Islamist terrorist groups, supported by Pakistan’s ISI, are involved in drug trafficking, particularly in Kashmir and other regions
• Criticisms Associated with the Issue: The perception of a ‘terrorist’ in one country may be deemed a ‘freedom fighter’ elsewhere. Additionally, there are instances where certain states clandestinely engage in criminal activities through their agencies or hired agents to subvert or destabilize other lawfully established governments, sometimes resorting to extreme measures such as assassinations of key political figures.
• Convictional of Terrorism: Traditional terrorist tactics involve attacks on individuals and property using various weapons like bombs, IEDs, grenades, landmines, etc. Other methods include hostage-taking, hijacking, forcible takeover of buildings (especially government/public structures), suicide attacks, kidnapping, acquisition of Weapons of Mass Destruction (nuclear, chemical, or biological), cyber terrorism, and environmental terrorism.
• Environmental Terrorism: Eco-terrorism, a form of protest against environmental destruction, involves premeditated damage to the natural world. For example, during the Gulf War of 1991, Saddam Hussein ordered the detonation of more than 1000 oil wells, causing significant environmental harm.
• Weapons of Mass Destruction (WMD): WMDs cause heavy and indiscriminate damage. Nuclear, chemical, and biological weapons fall under this category. Concerns about terrorist organizations acquiring WMDs, combined with the perceived possession of such weapons by Iraq, brought WMDs into focus due to their potential for widespread destruction.
• Chemical Weapons: Chemical weapons involve releasing toxic gases, attacking industrial facilities, or using stolen chemicals to cause significant harm. Any toxic chemical, regardless of origin, is considered a chemical weapon if used for prohibited purposes. Examples include toxins like ricin, botulin toxin, nerve agents, lewisite, and sarin.
• Nuclear Weapons:  Nuclear weapons are sophisticated engineering devices resembling gun-shaped bombs that use highly enriched uranium (HEU).
• Bio-Terrorism:  A relatively recent form of terrorism, bioterrorism, has emerged due to advancements in biotechnology accessible to terrorist groups. It involves the deliberate release of viruses, bacteria, or other modified agents to cause illness or death in people, animals, or plants, often with increased resistance to medicines or enhanced transmission capabilities. Release of biological agents into the environment occurs through air, water, or food, and terrorists exploit biological agents due to their difficulty of detection and delayed onset of illness, often spanning several hours to days.
• Cyber Terrorism: Cyber-terrorism involves the intersection of terrorism and cyberspace, encompassing unlawful attacks or threats against computers, networks, and stored information. It aims to intimidate or coerce governments and people to achieve political or social objectives. Cyberterrorism manifests as compromised integrity, loss of availability, breach of confidentiality, and physical destruction.
• Suicide Terrorism: Fedayeen, facing formidable odds, engages armed forces with little expectation of survival. Many operating in Jammu & Kashmir are Pakistanis, some veterans of the Afghan-Soviet conflict in the 1980s. Local reluctance to volunteer for suicide attacks in the region is attributed to Sufi Islamic traditions emphasizing peace and tolerance, exemplified by incidents like the assassination of Rajiv Gandhi in India.

THE CONCEPT OF NATIONAL SECURITY

• National security, broadly defined, ensures the safety of citizens, their property, and the nation’s wealth. The strategy aims to create a secure environment enabling individuals to realize their potential. The discourse on national security traditionally centers on protecting life and property, recognizing the interdependence of socio-economic development and security. Threats, such as war, terrorism, organized crime, energy shortages, water and food scarcity, internal conflicts, and disasters, pose challenges. Addressing terrorism requires prioritizing socio-economic development, responsive service delivery, strong law enforcement measures respecting human rights, and comprehensive strategies involving government, political parties, security agencies, civil society, and media. Essential elements include political consensus, good governance, socio-economic development, rule of law, and countering subversive activities. Countering the activities of terrorists necessitates the establishment of an appropriate legal framework and the enhancement of capacity.

GLOBAL COUNTER-TERRORISM STRATEGY ADOPTED BY THE UN

• On September 8, 2006, Member States endorsed the United Nations Global Counter-Terrorism Strategy, presenting a resolution and an appended Plan of Action. This groundbreaking global instrument aims to bolster national, regional, and international endeavors against terrorism. Marking the first instance of unanimous agreement among Member States on a strategic approach to combat terrorism, it conveys a resolute message against terrorism in all its forms and commits to practical steps individually and collectively. These steps encompass strengthening state capabilities to counter terrorist threats and better coordinating the United Nations system’s counter-terrorism activities. The strategy’s adoption fulfills the commitment made by world leaders at the September 2005 Summit and aligns with elements proposed in the Secretary-General’s May 2, 2006, report titled “Uniting against Terrorism: Recommendations for a Global Counter-Terrorism Strategy.”

The Plan of Action comprises the following four measures:

• Measures to address the conditions conducive to the spread of terrorism, encompassing unresolved conflicts, dehumanization of terrorism victims, lack of rule of law, human rights violations, ethnic, national, and religious discrimination, political exclusion, socio-economic marginalization, and deficient governance.
• Measures to prevent and combat terrorism, include denying terrorists access to the means, targets, and desired impact of their attacks.
• Measures to enhance States’ capacity to prevent and combat terrorism and fortify the role of the United Nations system in this context.
• Measures to ensure the fundamental basis of the fight against terrorism: respect for human rights for all and the rule of law. This underscores that the promotion and protection of human rights and the rule of law are integral to the strategy, emphasizing their complementary nature. It stresses the need to safeguard the rights of victims of terrorism.

INDIA’S LEGISLATIVE RESPONSE TO TERRORISM

• The National Security Act of 1980 grants authority to the Union Government or State Governments to detain individuals preventing actions prejudicial to India’s defense, foreign relations, or security, or regulating the continued presence of foreigners in India.

The Terrorist and Disruptive Activities (Prevention) Act of 1985 and 1987

• The Terrorist and Disruptive Activities (Prevention) Act of 1985 was initially anticipated to control the menace of terrorism within two years, leading to its restriction to a two-year duration. However, due to the persisting threat and the need for strengthened provisions, the Terrorist and Disruptive Activities (Prevention) Act of 1987, commonly known as TADA, was enacted.

The Terrorist Act and Disruptive Activity (TADA) 1985

• The 1985 Act introduced special courts (Designated Courts) and imposed restrictions on bail, requiring the court to record “reasonable grounds for believing” in the accused’s innocence before granting bail. The legislation granted enhanced powers to the police for suspect detention, witness protection, and prioritized trials under this law. Various offenses were redefined, and new offenses, such as possession of unauthorized arms in notified areas, were introduced. The Act increased penalties for specified offenses and expanded police powers for property seizure related to terrorist acts, including attachment and forfeiture. It extended the period of suspect detention in police custody, made confessions before police officers admissible, and granted executive magistrates certain powers. The registration of the First Information Report (FIR) required prior approval from the District Superintendent of Police. Courts were empowered to make certain presumptions (Section 21).
• In 1987, amendments were made to the admissibility of evidence obtained before police officers, requiring the immediate production of the accused before a judicial magistrate after any such admission. The government established Review Committees to scrutinize registered cases periodically and review the situation in areas affected by terrorist activities. TADA, 1987, had its validity extended in 1989, 1991, and 1993 but lapsed in 1995 following allegations of abuse.

Prevention of Terrorism Act of 2002 

• Subsequently, the Prevention of Terrorism Act of 2002 was enacted in response to the country’s internal security challenges, including an increase in terrorism, cross-border activities, and links between organized crime and terrorism.
• Terrorism has evolved into a global challenge, posing a threat to the global community. The Prevention of Terrorism Act, 2002 (POTA) encompasses various features, including definitions, arrest provisions, seizure and forfeiture of proceeds of terrorism, communication interception, unauthorized possession of firearms, enhanced investigative powers, constitution of special courts, dealing with terrorist organizations, and the establishment of a review committee. However, the Supreme Court repealed POTA, citing concerns about its arbitrary powers and failure to achieve its intended objectives. Following the repeal, some provisions to address terrorism were integrated into the Unlawful Activities (Prevention) Act, of 1967, through the Unlawful Activities (Prevention) Amendment Act, of 2004.

The Unlawful Activities (Prevention) Act, of 1967

• The Unlawful Activities (Prevention) Act, of 1967, was enacted to effectively prevent certain unlawful activities, with provisions allowing authorities to declare associations involved in terrorist activities as ‘unlawful.’ It defines a terrorist act and a terrorist organization, listing organizations engaging in such activities. The law includes mechanisms for the forfeiture of terrorism-related proceeds and imposes stringent punishments for offenses related to terrorism. While the Unlawful Activities (Prevention) Act addresses property seizure, enhanced punishments, and the listing of terrorist organizations, it lacks provisions for special courts, enhanced investigative powers, and regulations regarding confessions made before police officers.

Preventing Terrorism Financing

• In the realm of preventing terrorism financing, substantial financial support is often required for terrorist activities. These activities involve propagating militant ideologies, recruiting followers, acquiring arms and explosives, planning and executing actions, etc., necessitating significant funding. Terrorism financing can arise from both illegal and lawful activities, and terrorist organizations may collaborate with drug cartels, and smugglers, or engage in counterfeiting currency. Internationally, there is a trend to integrate anti-money laundering and counter-terrorist finance regimes. However, two distinct features differentiate money laundering from terrorist financing, influencing the strategic approach in a counter-terrorist finance regime.

1. In instances of money laundering, the process commences with the generation of proceeds from unlawful activities or crimes, concluding with their transformation into legal assets, either movable or immovable. Conversely, the financing of terrorist activities may originate from legal or illegal funds, reaching its climax when the funds reach the individuals behind a terrorist act. Even if it involves intermediary money-laundering activities, the money trail must be followed to its ultimate destination, broadening the investigative scope in cases involving terrorist finance.
2. In the context of money laundering, even if the proceeds from unlawful activities or crimes are “laundered,” enforcement authorities can reverse the effects through post-facto investigations. However, in cases of terrorist finance, once the financial chain is complete and an act of terrorism has occurred, post-facto investigations are limited to generating evidence leading to the conviction of perpetrators, with the loss of life and damage to property and public confidence already inflicted.

The success or failure of a counter-terrorist finance regime depends on how these elements are incorporated into its strategy. Key components of a strategy dealing with the financial aspects of terrorist activities typically include:

• Asset recovery and obstruction powers
• Legal penalties against individuals/organizations involved in financing terrorism
• Implementation of rigorous customer identification programs 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 involved agencies.

• Measures in India are governed by the Prevention of Money-Laundering Act, 2002 (PMLA) as amended by the Prevention of Money-Laundering (Amendment) Act, 2005. Money laundering, as per Section 2(p) of the PMLA, is defined in Section 3 of the Act, stating that anyone involved in any process or activity connected with the proceeds of crime and projecting it as untainted property is guilty of the offense of money laundering.
• Money laundering, under this Act, is confined to activities/offenses connected with the proceeds of crime, defined in Section 2(u) as any property derived or obtained, directly or indirectly, as a result of criminal activity related to a ‘scheduled offense,’ with a specified total value of thirty lakh rupees or more.
• However, the limitations of the Act become evident in its exclusion of offenses related to organized crime, and terrorism, including terrorist financing, trafficking in human beings, illicit trafficking in stolen goods, fraud, counterfeiting, piracy of goods, smuggling, insider trading, and capital market manipulations from the schedule. This omission hampers the effectiveness of the Act in addressing complex money laundering and terrorist financing operations.
• The virtue of laundering is omitted from the purview of the PMLA, excluding the proceeds of crime related to this area from the scope of money-laundering legislation, particularly when a predicate offense is established.
• The Prevention of Money Laundering Act incorporates two sets of measures to counter money laundering. It provides a transaction-reporting regime available to law enforcement, and it is administered by a separate financial intelligence unit.
• These regulations include the maintenance of records of prescribed transactions, furnishing information in the prescribed format, and verifying clients in the prescribed manner. Every reporting entity is obligated to furnish, among other things, monthly information related to cash transactions of a value of rupees 10 lakhs or its equivalent in foreign currency. This includes a series of integrated cash transactions valued below rupees 10 lakhs or equivalent foreign currency taking place in a month. Information on transactions appearing complex or raising suspicions of involving proceeds of crime must be reported within seven days of being satisfied regarding this, etc. FIU-IND analyzes these reports and disseminates the information to appropriate enforcement/intelligence agencies.
• Recipients of such information include the Ministry of Home Affairs, Research & Analysis Wing, Intelligence Bureau, National Security Council Secretariat, Central Board of Direct Taxes, Central Board of Excise & Customs, Directorate of Enforcement, Narcotics Control Bureau, Central Bureau of Investigation, Reserve Bank of India, Securities and Exchange Board of India, and Insurance Regulatory Development Authority. Currently, all banking companies, including private foreign banks, cooperative banks, RRBs, financial institutions, insurance companies, hire-purchase companies, chit funds, non-banking financial companies, and intermediaries mentioned in Section 12 of the SEBI Act constitute reporting entities.
• The Prevention of Money-laundering Act (PMLA) may be suitably amended soon to expand the list of predicate offences and widen its scope and outreach. The stage at which search and seizure actions may be taken under the PMLA could be advanced in cases involving wider ramifications, with adequate safeguards in place. The Enforcement Directorate may explore whether institutional coordination mechanisms between the Directorate of Enforcement and other intelligence-collecting and investigating agencies can be strengthened, and some provisions of the PMLA may be delegated to them.
• The financial transaction reporting regime under the Financial Intelligence Unit (FIU-IND) may be extended to cover high-risk sectors such as real estate. Strengthening the capacity of FIU-IND to meet future challenges is essential. Utilizing the Regional Economic Intelligence Councils (REICs) as a platform for increased coordination among various investigation agencies in cases suspected to be linked with money laundering would be beneficial. Due to the complexity of cases involved, the FIU-IND, in addition to disseminating agency-specific information, should provide overall region-centric information to the Central Economic Intelligence Bureau (CEIB) for dissemination to the respective REICs to expand the information regime.

DISRUPTING THE FUNDS FLOW FOR SUPPORTING TERRORIST ACTIVITIES

Provisions related to the financing of terrorist activities and the proceeds of such acts have consistently been a part of anti-terrorist legislation in India.

• Establishing terrorist finance as an offense was a feature of the Terrorist and Disruptive Activities (Prevention) Act (TADA). Holding property derived or obtained from any terrorist activity or acquiring them through terrorist funds constituted an offense under TADA, with the provision for the seizure of such property.
• Similarly, under the Prevention of Terrorism Act, 2002 (POTA), holding property derived or obtained from any terrorist activity or acquiring them through terrorist funds was considered an offense. POTA specifically included the act of raising funds intended for terrorism in the definition of ‘a terrorist act.’ Holding proceeds of terrorism was illegal under POTA, and such proceeds were liable to be forfeited to the Central Government or the State Government, regardless of whether the person holding them was prosecuted or convicted under the Act.
• The Unlawful Activities (Prevention) Amendment Act, 2004, also included provisions for punishing those knowingly holding property derived from the commission of a terrorist act or acquired through terrorist funds. The Act empowered Investigating Officers to seize and detain any cash related to terrorism, including traveler’s cheques and banker’s drafts, under the chapter on ‘Forfeiture of Proceeds of Crime.’

DISRUPTING THE CHANNELS OF FINANCING TERRORIST ACTIVITIES

• The execution of any terrorist act inherently involves financial support. Therefore, any strategy to counter the financing of terrorism should not only focus on investigating and prosecuting offenses after a terrorist act but also include preventive measures. In the aftermath of the events of September 11, 2001, the United States operationalized a Terrorism Financing Operations Section (TFOS) by the FBI. TFOS not only identifies and tracks financial transactions after a terrorist act but also exploits financial information to uncover unknown terrorist cells, recognize potential terrorist activity or planning, and predict and prevent potential terrorist acts.
• Various legislations in India, including TADA, POTA, and the Unlawful Activities (Prevention) Amendment Act, 2004, consider holding property derived from terrorist acts or acquired through terrorist funds as offenses. The focus should not only be on the person in possession of such proceeds but also on any property used or intended to be used for the purposes of a terrorist organization.
• Financing terrorist activities can occur through various modes, including value transfers through trading transactions, hawala transactions, and currency smuggling. Efforts to disrupt these channels are crucial for effectively countering the financing of terrorist activities.

• Forgery,
• Defrauding both financial institutions and the general public,
• False claims of exemptions,
• False claims of refunds,
• Utilizing nonprofit organizations and charities as conduits,
• Drug trafficking and the narcotics trade,
• Investments and trading in capital and commodities markets (including foreign transactions in real estate, etc.).

• The new legal framework on terrorism may include provisions addressing the freezing of assets, funds, bank accounts, deposits, cash, etc., when there is a reasonable suspicion of their intended use in terrorist activities. Investigating officers, with prior approval from a designated authority and subject to adequate safeguards, may undertake such actions. These provisions could be integrated into a separate chapter in the National Security Act of 1980.
• A specialized cell within the proposed National Counterterrorism Centre, drawing expertise from the Union Ministries of Finance and Home Affairs, as well as the Cabinet Secretariat, could be established to take concerted action on financial leads obtained from various sources. Additionally, various investigation agencies dealing with financial transactions may establish anti-terrorist finance cells within their organizations to support the efforts of intelligence agencies involved in counter-terrorism activities
• For swift investigations into the financial aspects of specific cases or groups of cases related to terrorist activities, dedicated teams may be formed within agencies responsible for investigating terrorism-related offenses. This could be achieved by bringing in officers with specialization in different aspects of financial investigation for short periods, such as three to six months. A protocol for this collaboration may be established between the relevant Union and State Ministries/Departments to facilitate capacity building and enhance the effectiveness of counter-terrorist measures.

Practice Questions

1. What is terrorism?
2. What is the definition of the terrorist acts?
3. What are the different types of terrorism?
4. What are the different means of carrying out acts of terrorism?
5. Discuss the tenets of the Global counter-terrorism strategy adopted by the UN.
6. Discuss the major legislative measures adopted by India to tackle terrorism.
7. “A comprehensive and effective legal framework to deal with all aspects of terrorism needs to be enacted.” Analyze
8. What are the measures that can be taken to prevent terrorism financing?

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