DHARMASHASTRA NATIONAL LAW UNIVERSITY,

JABALPUR, MP

Academic Session (2020-2021)

TOPIC – TRANSNATIONAL TERRORISM AS AN

EMERGING CRIME

SUBMITTED TO: SUBMITTED

BY:

Dr. Veena Roshan Jose NITIN SONI

1
(ASSISTANT PROFESSOR OF LAW) BAL/061/18

B.A.LLB(HONS.)

ACKNOWLEDGEMENT

With Due Respect I would like to extend my gratitude to Dr. Veena Roshan Jose, Assistant
Professor of Law, for guiding and helping me throughout the research work. Without her able
support I would not have been able to successfully mark the completion of this project. She
has helped me in every possible manner she can. I thank her for giving her precious time to
make this project concise and correct.

Regards

Nitin Soni

BAL/061/18

2
Table of Contents
ACKNOWLEDGEMENT.......................................................................................................2
RESEARCH METHODOLOGY...........................................................................................4
AIMS AND OBJECTIVES..................................................................................................4
RESEARCH QUESTIONS..............................................................................................4
INTRODUCTION....................................................................................................................5
Terrorism..............................................................................................................................6
DIFFERENCE BETWEEN DOMESTIC AND TRANSNATIONAL TERRORISM......8
TRANSNATIONAL TERRORISM AS AN EMERGING CRIME..................................10
LEGAL FRAMEWORKS.....................................................................................................12
International Legal Instrument.........................................................................................13
INDIAN FRAMEWORK......................................................................................................15
Unlawful Activities (Prevention) Act, 1967......................................................................15
Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA).........................15
CONCLUSION.......................................................................................................................19

3
RESEARCH METHODOLOGY
The research is based upon doctrinal and analytical form of research.

AIMS AND OBJECTIVES

The aim of this paper is to critically analyse the Transnational Terrorism as an Emerging
Crime and its rising problems at global level. The paper also discusses the laws and
conventions which deals Transnational Terrorism. The paper will finally offer suggestions as
to how the problem relating to emerging area of criminality in Transnational Terrorism can
be controlled.

RESEARCH QUESTIONS
Q1. What is the transnational terrorism? Is transnational terrorism is emerging area of
criminality?

Q2. What are the international legal regimes relating to transnational terrorism and the legal
regimes in India?

Q3. What is the distinction between transnational terrorism and domestic terrorism and what
are the emerging threats of transnational terrorism?

MODE OF CITATION
This research project follows Blue book 20th edition citation style.

4
INTRODUCTION

During the modern era of transnational terrorism, terrorists crossed borders and, in some
instances, staged incidents in foreign capitals to focus world attention on their cause or
grievance. Some high-profile attacks – e.g., Black September’s abduction of Israeli athletes
during the 1972 Munich Olympics, Hezbollah’s suicide bombing of the US Marine barracks
in Beirut on 23 October 1983, Khalistani extremists’ downing of Air India flight 182 on 23
June 1985, the downing of Pan Am flight 103 on 21 December 1988, the truck bombing of
the World Trade Center on 26 February 1993, and the near-simultaneous hijackings on 11
September 2001 (henceforth, 9/11) – made the world acutely aware of the potential threats
posed by today’s resourceful terrorists. The attacks on 9/11 struck at the financial and
security symbols of America and, in so doing, highlighted the vulnerability to terrorism of
even the most powerful nation on earth. Because it is human nature to overspend on unlikely
catastrophic events, it is likely that terrorists have succeeded in getting the world to
overspend on counterterrorism, while ignoring much more pressing problems for a world
besieged with exigencies involving health, the environment, conflict, and governance.
Terrorism is a tactic of asymmetric conflict, deployed by the weak for a strategic advantage
against a strong opponent.

Transnational terrorism presents a unique challenge. On average only 420 people are killed
and another 1249 are injured each year from transnational terrorist attacks. Nevertheless, the
public in rich countries views transnational terrorism as one of the greatest threats. This is
rather ironic since over 30,000 people die on US highways annually, yet highway safety is
not as much of a public concern. Second, protective or defensive counterterrorism measures
may merely deflect attacks to softer targets. For example, the installation of metal detectors in
airports in January 1973 decreased skyjackings, but increased kidnappings and other hostage
missions; the fortifications of US embassies reduced embassy assaults, but increased
assassinations of diplomatic officials.1 Unlike other challenges, countermeasures may have
unintended harmful consequences: strong offensive measures against terrorists can lead to

1
W., and T. Sandler, 1993: The effectiveness of anti-terrorism policies: a vector auto regression-intervention
analysis, American Political Science Review, 87(4), 829-844.

5
backlash attacks as new grievances are created. Third, guarding against transnational
terrorism can utilize resources at an alarming rate without greatly reducing the risks. In
contrast, terrorists require moderate resources to create great anxiety in a targeted public.
Fourth, transnational terrorism poses a real dilemma for liberal democracies: responding too
fully compromises democratic principles and gains support for the terrorists, whereas
responding too meekly loses constituency support and exposes the government’s failure to
protect lives and property.2 Thus, government actions can become the root of future attacks.
Fifth, terrorism can assume more deadly forms involving chemical, biological, radiological,
and nuclear attacks. The signs of such threats are beginning to emerge. 3 Sixth, evaluating
solutions or actions against terrorism is particularly difficult owing to counterfactuals – e.g.,
the incidence of terrorism without these actions – that are hard to identify. Typically, only the
benefit or cost side of a solution is readily known.

Unlike many challenges, there is no solution to transnational terrorism because it is a cost-

effective tactic of the weak against a more formidable opponent. Very cheap terrorist attacks
can create significant anxiety – the material cost of a suicide attack may be as little as $150
and on average kills twelve people.4 Some rogue nations utilize terrorism as an inexpensive
means to destabilize or harm other nations. Even effective antiterrorism campaigns will only
temporarily work until the terrorists either find new leaders or sources of resources. Even if a
terrorist group is annihilated, a new group may surface for some other cause. Thus, terrorism
can be put into remission but it cannot be eliminated. Granting terrorist concessions will
signal to future terrorists that terrorism pays, so that compromise may fuel future terrorist
campaigns.5

Terrorism
Terrorism is the premeditated use or threat to use violence by individuals or subnational
groups against non-combatants in order to obtain a political or social objective through the
intimidation of a large audience beyond that of the immediate victim. Two essential
constituents of the definition are violence and the presence of a political or social motive.
Violent acts for extortion purposes are crimes but are not terrorism. Similarly, violence for
revenge or sociopathic reasons, such as the shootings at Columbine High School or Virginia

2
Wilkinson, P., 1986: Terrorism and the liberal state, revised ed., Macmillan, London.
3
Ivanova, K., and T. Sandler, 2006: CBRN incidents: political regimes, perpetrators, and targets, Terrorism and
Political Violence, 18(3), 423-448.
4
Hoffman, 2003: Al Qaeda, trends in terrorism, and future potentialities: an assessment, Studies in Conflict and
Terrorism, 26(6), 429-442.
5
Sandler, T., and D. G. Arce, 2003: Terrorism and game theory, Simulation and Gaming, 34(3), 319-337.

6
Tech, are crimes that create much fear and anguish, but are not terrorism since there is no
political motive. Without violence or its threat, terrorists cannot induce a political decision
maker to respond to their demands. Even with the violence, concessions are often not
granted. Terrorists broaden their audience beyond their immediate victims by making their
attacks appear to be random, so that everyone feels at risk. Unlike some criminal acts in large
cities, terrorist incidents are not random but well-planned and often well-executed attacks,
where terrorists weigh the risks, costs, and payoffs carefully.

Terrorism definitions contain at least three other key ingredients: the victim, the perpetrator,
and the audience. The identity of the victims is the most controversial. Some definitions
require the victim to be a non-combatant, so that an attack against a soldier of an occupying
force is not considered to be terrorism even when the attackers are asking for political change
– e.g., the pull-out of the forces. However, the US Department of Defence’s definition of
terrorism drops the non-combatant distinction. Virtually all definitions consider politically
motivated attacks against civilians as terrorism. The data set International Terrorism:
Attributes of Terrorist Event (ITERATE) includes terrorist actions against peacekeepers, but
not against an occupying army, as acts of terrorism.6

Though less controversial, the identity of the perpetrator also presents difficulty. Most
definitions exclude state terror where a state or government uses terror tactics against its own
citizens (e.g., China’s actions during the Cultural Revolution). Our definition follows this
practice by characterizing the perpetrators as individuals or subnational groups but not the
state itself. States can, however, sponsor terrorists through funding, training, intelligence,
equipment, safe haven, freedom from prosecution, or other means.7 State-assisted terrorism is
known as state-sponsored terrorism and is included in ITERATE. The downing of Pan Am
flight 103 is considered to have been state sponsored by Libya, since a Libyan intelligence
agent has been found guilty of the attack. Evidence gathered following the La Belle
discotheque bombing in West Berlin on 4 April 1986 pointed to Libyan sponsorship. In
reaction, the United States launched a retaliatory raid on Libya on 15 April 1986. The US
Department of State (2003) included Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria
on a list of state sponsors of terrorism. More recently, Iraq and Libya have been removed
from the list (US Department of State, 2007). Finally, the audience refers to the target group
that the terrorist campaign is meant to intimidate. The 9/11 attacks were intended to cause
6
Mickolus, E. F., T. Sandler, J. M. Murdock, and P. Flemming, 2006: International terrorism: attributes of
terrorist events, 1968-2005 (ITERATE), Vinyard Software, Dunn Loring, VA.
7
Kshitij Prabha, "Defining Terrorism", Strategic Analysis, Vol. XXIV, No. 1, April 2000, p. 130.

7
anxiety in the flying public and people who work in large cities. Thus, the audience extended
beyond those killed and injured on 9/11. In many ways, 9/11 had a global audience.

Terrorists desire the widest possible audience so that their demands and horrific events
become known. Their campaign seeks to circumvent the normal political process through
threats and violence. By intimidating a target population, terrorists want this audience to feel
sufficiently vulnerable to apply pressure on decision makers to give into terrorist demands.
Political decision makers must weigh the anticipated costs of conceding, including possible
counter grievances from other interests, against the expected costs of future attacks. When the
consequences of future incidents outweigh the costs of concessions, the government may
grant the terrorist demands. Traditionally, terrorists pose a greater problem for liberal
democracies than for autocracies.8 This follows because liberal democracies must be
restrained in their reaction, while autocracies can be unrestrained. Many characteristics of
liberal democracies – freedom of association, rights of the accused, freedom of movement,
funding opportunities, periodic elections, and information availability – provide the perfect
environment for terrorists to plan and execute their actions. Most important, liberal
democracies have press freedoms that allow terrorists to seek the media attention that they
crave.

DIFFERENCE BETWEEN DOMESTIC AND TRANSNATIONAL

TERRORISM
Another crucial distinction is between domestic and transnational terrorism. Domestic
terrorism is homegrown and has consequences for just the host country, its institutions,
citizens, property, and policies. In a domestic incident, the perpetrators, victims, and audience
are all from the host country. Moreover, there is no foreign sponsorship or involvement in a
domestic terrorist event. Timothy McVeigh’s bombing of the Alfred P. Murrah Building in
Oklahoma City in April 1995 was the deadliest domestic terrorist event in US history. Civil
wars are often associated with domestic terrorism that an insurgency can direct at the ruling
government or general population. The government may respond with state terror (e.g., death
squads) against a population of potential supporters of the insurgency.

Targeted liberal democracies have frequently employed the right balance of defensive and
proactive policies against domestic terrorist threats. In Italy, the Red Brigades was brought to
8
Eubank, W. L., and L. B. Weinberg, 1994: Does democracy encourage terrorism?, Terrorism and Political
Violence, 6(4), 417-435.

8
justice; in France, Action Direct members were captured; and in Belgium, Combatant
Communist Cells members were also apprehended. Although these groups engaged in some
transnational terrorist attacks, their biggest threat was to the host country. When confronted
with domestic terrorism, a country cannot sit back and hope that another country will dispose
of the threat, since no other country is at risk. A targeted country has no choice but to
confront the threat with appropriate counterterrorism measures.

Transnational terrorism involves incidents where the perpetrators, victims, or audience are
from two or more countries. If an incident begins in one country but terminates in another,
then the incident is a transnational terrorist event, as is the case of a mid-air hijacking of a
plane that leaves Athens bound for Cairo and is made to fly to Algiers. The kidnappings of
foreign workers in Iraq in 2004 are transnational terrorist events. The toppling of the World
Trade Center towers on 9/11 was a transnational terrorist incident because the victims were
from ninety different countries, the mission had been planned and financed abroad, the
terrorists were foreigners, and the targeted audience was global. An attack against a
multilateral organization is a transnational terrorist incident owing to its multi-country impact
and victims, as in the case of the suicide car bombing of the UN headquarters in Baghdad on
19 August 2003. The Popular Front for the Liberation of Palestine (PFLP) seizure of eleven
Organization of Petroleum Exporting Countries (OPEC) ministers in Vienna on 21 December
1975 is another instance of transnational terrorism.

Terrorism must also be distinguished from some related concepts, such as war, guerrilla
warfare, and insurgencies. War is generally more discriminating than terrorism in its
targeting. In a war, civilians are typically not taken hostage or targeted. 9 War also abides by
certain conventions with respect to the treatment of prisoners and the observance of
diplomatic immunity10. In contrast, terrorists make their own rules and go after civilians
because they are easy targets that create maximum anxiety for the population. War is on a
much grander scale than terrorism and involves much greater casualties and damages. In
many wars, especially guerrilla wars, terrorism is one tactic of many deployed by adversaries
to weaken the enemy. Guerrilla warfare involves large paramilitary groups that control
territory from which to launch attacks against targets that often include the host country’s
military. In Colombia, Fuerza Armadas Revolucionarias de Colombia (FARC) is a
paramilitary force that numbers in the thousands and employs terrorism and other methods
9
Martha Crenshew, Terrorism, Legitimacy and Power, Wesleyan University Press, Middle town, Conn, 1988,
p.2.
10
Supra note 4.

9
(e.g., armed attacks) in its confrontation with the government. Although FARC has conducted
some transnational terrorist attacks in Colombia on foreign interests, FARC relies on
domestic terrorism and other operations. Finally, an insurgency intends to overthrow a
government through the use of irregular military operations that may include terrorism. 11
Insurgencies are used against occupying forces and unpopular governments. As a winning
strategy, insurgencies try to gain popular support through propaganda aimed at exposing the
alleged injustices of the government. Civil wars are often associated with insurgencies and
guerrilla warfare.

TRANSNATIONAL TERRORISM AS AN EMERGING CRIME

The provision about transnational12 crime including its characteristic has been formulated in
Convention Against Transnational Organized Crime 2000. Transnational crime is part of
international crime which effect is crossing the territorial border of a country. Transnational
crime can be done individually and/or in group or organized.

Based on that convention, a crime is considered transnational if the stated elements are met in
article 3, Convention Against Transnational Organized Crime 2000. Terrorism is not only an
international crime but also an organized transnational crime.13 Terrorism as organized
international crime, which has developed into transnational crime, has an organized nature
and widespread network. This can be seen as stated on paragraph 1, article 5 (Criminalization
of Participation in an organized criminal group) of the convention.

Based on article 3 and article 5 of Convention Against Transnational Organized Crime 2000,
transnational crime is against the nature and dignity of humanity or is considered as the
common enemy of mankind (hostis humani genesis).14

We can see that the transnational terrorism is an emerging area of criminality because there is
no such specific law related to it, also this field of crime is very new may be 2 to 3 decades
older only and also most difficult to curb, the causes of transnational terrorism Terrorism can

11
Supra note 4.
12
Irvan O M 2005 Sempitnya Dunia, A Short Paper About Transnational Crime. J Kriminologi Indones 4(1)
14–27.

13
Bassiouni MC 1986 International Criminal Law vol I Crimes (New York: Transnational Publishers) p 2-3
14
Dwiwarno, N., 2018. Terrorism as Transnational Organized Crime and Government’S Attemp to Elliminate
Terrorism. IOP Conference Series: Earth and Environmental Science, 175, p.012209.

10
stem from various causes that include: ethno-nationalism, separatism, social injustice,
nihilism, single issues (e.g., animal rights), fundamentalist beliefs, religious freedom,
anticapitalism, and leftist ideology. Often, terrorist campaigns, fueled by ethno-nationalism or
separatism, are domestic in orientation as attacks are directed at weakening the government
or else in forcing it to overreact so as to lose popular support. David Rapoport (2004)
characterizes four waves of terrorism since the late 1870s. The first wave was the anarchists
whose campaign had a strong transnational orientation as they tried to internationalize their
struggle by exporting it to other countries including the labour movement in the United
States. During the second wave, the anti-colonialists were active in gaining independence
during the 1950s and 1960s – e.g., Algeria and Cyprus. Some of these anticolonial campaigns
had transnational implications through the use of the foreign press to make their grievances
known more broadly. The left-wing terrorists were the dominant influence during the third
wave from the late 1960s. This wave marked the emergence of modern transnational
terrorism as terrorists routinely took their attacks to foreign airports and capitals to get
noticed. This was particularly true of the left-wing Palestine Liberation Organization (PLO)
and its offshoots such as the PFLP that sought an independent Palestinian state. To get the
attention of Israel and its supporters, Palestinian terrorist groups staged some spectacular
incidents abroad. Within Europe, leftist terrorist groups attacked symbols of capitalism and
imperialism, which at times included foreign corporations, foreign military personnel, and
multilateral organizations. The fourth, and current, wave consists of fundamentalist terrorism,
which began with the Soviet invasion of Afghanistan and the Iranian students’ takeover of the
US embassy in Tehran in November 1973. Currently, half of the active transnational terrorist
groups are fundamentalist in orientation (Hoffman, 2006). Elements of past waves remain as
a new wave ensues. Although the fundamentalists are the main influence today,
representative groups from the first three waves – especially, the leftists – are present today.
Today’s leftists carry on anti-globalization campaigns that attack multilateral and capitalist
institutions.15

Fundamentalist terrorism has foundations in all of the major religions – for example, a Jewish
extremist assassinated Israeli Prime Minister Yitzhak Rabin in November 1995. Nevertheless,
Islamic fundamentalists are by far the main influence on transnational terrorism today. Their
demands range from an Islamic fundamentalist state to the United States leaving the Gulf
states. In other instances, Islamic fundamentalists call for the destruction of Israel. An al-
15
Martha Crenshaw, "Theories of Terrorism", The Journal of Strategic Studies, Vol. 10, No. 4, December 1987,
p. 13.

11
Qaida loosely affiliated network includes groups such as al-Qaida Iraq, Abu Sayyaf, Jemaah
Islamiyah, al Jihad (Egyptian Islamic Jihad), al-Qaida Saudi Arabia, and others in many
countries such as Tunisia, Pakistan, Jordan, Egypt, Indonesia, Kuwait, the Philippines,
Yemen, Kenya, and Saudi Arabia.16

Since the past decade the transnational terrorism is increased rapidly and is area of concern
also it is an emerging area of criminality. We have some counter terrorism law but we need
specific law related to it.

LEGAL FRAMEWORKS

The primary purpose of the United Nations is to maintain international peace and security,
where security means external security of the member states. Article 2(7) of the Charter
prohibits the UN from interfering in matters which lie within the domestic jurisdiction of the
member states. Since terrorism was for long considered a domestic phenomenon, the UN
Charter did not discuss it nor did it interfere in the matter. However, the UN had to address
the problem once terrorism began to develop international dimension i.e. when it began to
affect the interest of more than one state and when it came to be used as a tactic to resolve
international conflicts.

The question of terrorism was first introduced in the UN in early 1 970s at a time when
Europe had become the theatre of terrorist activities. On December 18,1 972 the UN General
Assembly at it's 27th Session adopted Resolution 3034 (xxvii) on International Terrorism.
The title of the Resolution read, "Measures to prevent international terrorism which
endangers or takes innocent human lives or jeopardises fundamental freedoms, and study of
the underlying causes of those forms of terrorism and acts of violence which lies in misery,
frustration, grievance and despair and cause some people to sacrifice human lives, including
their own, in an attempt to effect radical change." The above was in fact a compromise
formulation which took into account the two divergent political perceptions, the West,
constituting one group and the Non-aligned countries the other. Resolution 3034 was an
important step in the UN initiative on international terrorism, in that it provided for the
establishment of an Ad hoc Committee on International Terrorism consisting of 35 members

16
Tara Kartha, "Transnational Terrorism and Radical Extremists", in Verinder Grover(ed.) Encyclopedia of
International Terrorism - Part II, Deep and Deep, New Delhi, 2002, p. 23.

12
to be appointed by President of the General Assembly. Ad hoc committee organised 3 sub
committees to study three distinct issues relating to the question of international terrorism.
They were (a) the definition of international terrorism, (b) underlying causes of international
terrorism, and (c) measures for the prevention of international terrorism.17

However, in view of the divergence of approach, no conclusion could be drawn from the
draft proposals. No definition of international terrorism could be adopted due to lack of
consensus on the following - who all can be recognised as participants in a terrorist group?
What shall be the range of terrorist activities? What is the international element in an act of
international terrorism? Who are the victims/targets of a terrorist act?46 Finally, member
states decided to drop the subject of definition and decided to focus on prevention of
international terrorism.47 Thus no definition could be evolved until 1987 when the Secretary
General convened an international conference to define terrorism and differentiate it from
freedom fighting. In the same year the General Assembly adopted a resolution in which it
condemned all acts of terrorism except those fighting for right to self-determination against
foreign and racist regimes as criminal, whenever and by whomever committed, including
those which jeopardise friendly relations among states and their security.46 An
overwhelming majority adopted the Resolution, remarkably the US and Israel voted against
it. From 1987 onwards the member states were all set to adopt resolutions and convention for
prevention of international terrorism.18

International Legal Instrument

Convention on Offences and certain other Acts Committed on Board Aircraft - Developed by
International Civil Aviation Organisation (ICAO) and signed at Tokyo on 14 September
1963. Authorises the airplane commander to impose reasonable measures on any person who
has committed or is about to commit such acts, and requires State parties to take custody of
offenders.

Convention for the Suppression of Unlawful Seizure of Aircraft - Developed by ICAO and
signed at the Hague on 16 December, 1970 Requires parties to punish hijacking by "6Severe
penalties", and either extradite or prosecute the offenders.
17
Kshitij Prabha, "United Nations and Terrorism", in Verinder Grover(ed.) Encyclopedia of International
Terrorism - Part-II, Deep and Deep, New Delhi 2002, p. 108
18
V.S. Mani, "International Terrorism - Is a Definition Possible", Encyclopedia of International Terrorism -
Part-II, p. 68.

13
Convention for the suppression Unlawful Acts against the safety of Civil Aviation -
Developed by ICAO and signed at Montreal on 23 September, 1971. Requires parties to
punish offences by "severe penalties" and either extradite or prosecute the offenders. This
convention is supplemented by the: Protocol for the suppression of Unlawful Acts of
Violence at Airports Serving International Civil Aviation, signed at Montreal on 24 February,
1988. Extends the provisions of the Convention to encompass terrorist acts at airports.

Convention on the Prevention and Punishment of Crimes against Internationally Protected

Persons, including Diplomatic Agents Adopted by General Assembly, signed at New York on
14 December, 1973. Requires parties to criminalise and punish attacks against State officials
and representatives.

Convention against the Taking of Hostages adopted by the General Assembly, signed at New
York on 18, December, 1979. Parties agree to make the taking of hostages punishable by
appropriate penalties; to prohibit certain activities within their territories; to exchange
information; and to carry out criminal or extradition proceedings.

Convention on the Physical Protection of Nuclear Material Developed by International

Atomic Energy Agency (IAEA) and signed at New York and Vienna on 3 March 1980.
Obliges parties to ensure the protection of nuclear material during transportation within their
territory or on board their ships or aircraft.

Convention for the suppression of Unlawful Acts against the safety of Maritime Navigation
Developed by International Maritime Organisation (IMO) and signed at Rome on 10 March,
1988. Obliges parties to either extradite or prosecute alleged offenders who have committed
unlawful acts against ships, such as seizing ships by force and placing bombs on boards
ships. This convention is supplemented by the: Protocol for the suppression of Unlawful Acts
against the safety of Fixed Platforms Located on the Continental Shelf signed at Rome on 10
March, 1988. Extends the requirements of the Convention to fixed Platforms such as those
engaged in the exploitation of offshore oil and gas.

Convention on the Making of Plastic Explosives for the purpose of Detection Developed by
ICAO and signed at Montreal on 1 March, 1991. Seeks to curb the use of unmarked and
undetectable plastic explosives.

International Convention for the Suppression of Terrorist Bombings Adopted by the General
Assembly on 15 December, 1997. Seeks to deny "Safe havens" to persons wanted for terrorist

14
bombings by obliging each state party to prosecute such persons if it does not extradite them
to another state that has issued an extradition request.

International Convention for the Suppression of the Financing of Terrorism Adopted by

General Assembly on 9 December, 1999. Obligates State parties either to prosecute or to
extradite persons accused of funding terrorist activities, and requires bank to enact measures
to identify suspicious transactions- Dating back to 1963 the above agreements provide the
basic tools to combat international terrorism. Many of them have been ratified by the
majority of countries around the world. Ratification of 12 key anti-terrorism conventions
have risen by 15 percent since 2001.19

INDIAN FRAMEWORK

Unlawful Activities (Prevention) Act, 1967

The UAPA was designed to deal with associations and activities that questioned the territorial
integrity of India. The ambit of the Act were strictly limited to meeting the challenge to the
territorial integrity of India. The Act was a self-contained code of provisions for declaring
secessionist associations as unlawful, adjudication by a tribunal, control of funds and places
of work of unlawful associations, penalties for their members etc. The Act has all along been
worked holistically as such and is completely within the purview of the central list in the 7th
Schedule of the Constitution.

Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)

The second major act came into force on 3 September 1987 was The Terrorist & Disruptive
Activities (Prevention) Act 1987 this act had much more stringent provisions then the UAPA
and it was specifically designed to deal with terrorist activities in India. When TADA was
enacted it came to be challenged before the Apex Court of the country as being
unconstitutional. The Supreme Court of India upheld its constitutional validity on the
assumption that those entrusted with such draconic statutory powers would act in good faith

19
Shashi Shukla, "United Nations and Global Governance", C.P. Barthwal(ed.) Good Governance in India,
Deep and Deep, New Delhi, 20

15
and for the public good in the case of Kartar Singh vs State of Punjab 20. However, there were
many instances of misuse of power for collateral purposes. The rigorous provisions contained
in the statute came to be abused in the hands of law enforcement officials. TADA lapsed in
1995.

The Maharashtra Control of Organised Crime Act, 1999 (MCOCA)

Other major Anti-terrorist law in India is The Maharashtra Control of Organised Crime Act,
1999 which was enforced on 24th April 1999. This law was specifically made to deal with
rising organized crime in Maharashtra and especially in Mumbai due to the underworld. For
instance, the definition of a terrorist act is far more stretchable in MCOCA than under POTA.
MCOCA mention organized crime and what is more, includes `promotion of insurgency' as a
terrorist act. Under the Maharashtra law a person is presumed guilty unless he is able to prove
his innocence. MCOCA does not stipulate prosecution of police officers found guilty of its
misuse.

Prevention of Terrorism Act, 2002

With the intensification of cross-border terrorism and the continued offensive agenda of Pak
ISI targeted at destabilizing India and the post 11th September developments, it became
necessary to put in place a special law to deal with terrorist acts. Accordingly, the Prevention
of Terrorism Act, 2002 (POTA, 2002) was enacted and notified on 28.03.2002.

The POTA, 2002 clearly defines the terrorist act and the terrorist in Section 3 and grants
special powers to the investigating authorities under the Act. In the case of People's Union for
Civil Liberties Vs. Union of India (UOI) 21 the constitutional validity of the Prevention of
Terrorism Act, 2002 was discussed. The court said that the Parliament possesses power under
Article 248 and entry 97 of list I of the Seventh Schedule of the Constitution of India to
legislate the Act. Need for the Act is a matter of policy and the court cannot go into the same.

However, in order to ensure that these powers are not misused and the violation of human
rights does not take place, specific safeguards have been built into the Act. Some of these are:

20
Kartar Singh vs State of Punjab (1994) 3 SCC 569.
21
People's Union for Civil Liberties Vs. Union of India (UOI) (2004) 9 SCC 580.

16
· No court can take cognizance of any offence under the Act without the previous sanction of
the Central Government or, as the case may be, of the State Government.

· No officer lower in rank than the Deputy Superintendent of Police can investigate offences
under the Act.

· Confession made by a person before a police officer not below the rank of Superintendent
of Police is admissible as evidence under the Act provided such person is produced with 48
hours before a magistrate along with his confessional statement.

· The Act provides for punishment for any officer who exercises powers maliciously or with
malafide intentions. It also provides for award of compensation to a person who has been
corruptly or maliciously proceeded against under the Act.

The POTA, 2002 is a special law for the prevention of and for dealing with terrorist activities
and clearly defines the terrorist act and the terrorist in Section 3, Sub-Section (1) of the Act.
The Act provides the legal framework to strengthen the hands of the administration in our
fight against the menace of terrorism and can and should be applied against such persons and
acts as are covered by the provisions of this law and it is not meant as a substitute for action
under ordinary criminal laws.

The National Investigation Agency (NIA) Act, 2008

The salient features of the Act are as follows-The legislation will be applicable to the whole
of India, citizens of India, outside India, in service of the Government, wherever they may be
and for persons on ships and aircrafts registered in India.22 The officers of the NIA will have
all the powers, privileges and liabilities which the police officers have in connection with the
investigation of any offence23. The superintendence of the NIA shall vest in the Government
of India and the administration will vest in the officer designated on this behalf by it 24. The
police officer in charge of the police station on receipt of the report of the offence shall
forward it to the state government which in turn will forward the same to the Central
Government. If the Central Government is of the opinion that the offence is a Scheduled

22
Section 1, NIA Act, 2008
23
Section 3(2), NIA Act, 2008
24
Section 4(1), NIA Act, 2008

17
Offence, it shall direct the agency for investigation of such offence 25. The NIA may also
investigate other offences connected with the Scheduled Offence.

Unlawful Activities (Prevention) Amendment Act, 2008

The Unlawful Activities (Prevention) Act, 1967 was conceived to put reasonable restrictions,
on the freedom of speech and expression, the right to assemble peacefully or unions for the
interests of the India's sovereignty and integrity. The Indian Parliament amended the Act in
2004 following the repeal of Prevention of Terrorism Act, 2002 (POTA). This changed the
entire character of the Act and made it more of an anti terrorism legislation. The Unlawful
Activities (Prevention) Amendment Act, 2008 made a number of procedural and substantive
changes to empower the NIA, Act effectively and decisively on terrorism.

These are some of the important changes that have been brought about in the amendment act.
Section 17 was replaced by a provision which makes such persons punishable who collects or
provides funds or attempts to do the same and has knowledge that such funds are likely to be
used for terrorist activities. Two additional provisions have been inserted after section 18 of
the Unlawful Activities Prevention Act, 1967.Section 18A deals with the offence of
organizing or causing the organization of any camp or camps for imparting training in
terrorism and section 18B deals with the offence of recruiting or causing the recruitment of
any person for the purpose of committing a terrorist act. A new Section 43D has been
incorporated in the Amendment Act, which has increased the maximum period of custodial
interrogation (remand) to 180 days, a increase of over the 90 days allowed under Section 167
of the Code of Criminal Procedure of 1973. Section 43E introduces the principles of
presumption of guilt, which was also present in POTA. According to the section arms,
explosives or other substances specified in Section 15 of the Act, if recovered from the
possession of the accused and if there is reason to believe that substances of similar nature
will be used in the commission of the offence, the court shall presume that accused has
committed such offence. Critics have countered this section 43E stating that our criminal
justice system is based on the presumption of innocence until proved guilty. The onus of
proving the guilt of the accused is invariably and always on the prosecution whereas as per
Section 43E if a person is found with the weapon the onus would be upon him to prove that

25
Section 6, NIA Act, 2008

18
he is not guilty. This provision hits at the root perception of Indian criminal jurisprudence
which is acquisitorial.26

This legislation again meets the objectives of speedy and efficient investigation, fair and
speedy trial, and deterrent punishment. However similar to the NIA act, it comes into play
only after the terrorist act has been committed. Howsoever deterrent our laws are, it is not
going to affect the spirit of a jehadi on a suicide mission.

CONCLUSION

Terrorism has emerged as a grave threat to the international community. It is not only likely
to continue but may increase as a manifestation of low intensity conflict. Terrorism is a new
kind of enemy, neither a single state nor an individual, but a network that operates in "many
countries and affects all countries". In view of the changing dimensions and emerging new
trends of terrorism, especially its global reach and consequence, it is more than evident that
UN has to be given the lead in any effective fight against international terrorism. UN has
been discussing and debating the nature, causes, and means of prevention and suppression of
terrorism since early 1970s. General Assembly Resolutions and 12 International Conventions
on terrorism have strengthened international norms against terrorism. The problem is not with
lack of agenda or programme of action but with its implementation. The member states of
UN have to shed their duplicity, hypocrisy and selectivity notwithstanding their close ties
with their allies and adopt a just, fair and a transparent approach in dealing with terrorism.
UN as a global organisation has to play a vital role in managing international counter -
terrorism cooperation and coordination by evolving a sound, coordinated and multifaceted
strategy which includes legal conventions, cooperation between states and their law
enforcement agencies, sharing of information and intelligence, and developing and
implementing mechanism to suppress financial support to terrorist groups. However, it may
be emphasised that UN requires structural and conceptual adaptation to the changing times so
as to effectively meet the changing dimensions of terrorism.

As with the advancement in the technology and several other factors the transnational
terrorism is increasing rapidly since past decade the recent example is of Taliban capturing
26
Krishna Prasad, “Anti-terror Laws-or An Implementation Of Failure?”, December 2009

19
the Afghanistan that leads to gross human right violation, So the transnational Terrorism is an
emerging area of criminality.

20