RESOURCE MATERIALSERIES No. 71

UNAFEI
Fuchu, Tokyo, Japan

March 2007

Keiichi Aizawa
Director
United Nations
Asia and Far East Institutefor the Prevention of Crime andthe Treatment of Offenders(UNAFEI)
1-26 Harumi-cho, Fuchu, Tokyo 183-0057, Japan
http://www.unafei.or.jp
unafei@moj.go.jp

CONTENTS
INTRODUCTORY NOTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

v

PART ONEWORK PRODUCT OF THE 132ND
INTERNATIONAL SENIOR SEMINAR“Strengthening the Legal Regime for Combating Terrorism”
Visiting Experts’ Papers•

The Role of the United Nations and United Nations Office on Drugs and Crimein the Facilitation, Accession and Implementation of the 13 Universal Legal
Instruments against Terrorism
by Mr. Jean-Paul Laborde (UNODC, Austria) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3•Countering Terrorism: New International Criminal Law Perspectives
by Mr. Jean-Paul Laborde (UNODC, Austria) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10•

The United Nations in the Fight against Terrorism
by Mr. Javier Rupérez (CTED, USA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14•

The Convergence of Telecom and Financial Services and Its Effects on AML/CFT
Wire Remittance Operations
by Mr. John Forbes (ADB, Philippines) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24•

Islam, Globalization and Counter Terrorism
by Professor Juhaya S. Praja (Indonesia) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32•

Islam Post 9-11: Indonesia’s Experienceby Professor Juhaya S. Praja (Indonesia) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Participants’ Papers•

Country Report: Brazil
by Mr. Laercio Rossetto (Brazil) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45•

Country Report: India
by Mr. Devendra Kumar Pathak (India) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53•

Vietnamese Law and Assessment of the Legal System in Vietnam in Comparison
to the United Nations Convention against Terrorism
by Ms. Le Thi Van Anh (Vietnam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61•

Country Report: Zimbabwe
by Ms. Fortune Chimbaru (Zimbabwe) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

iii

Reports of the Seminar•

Strengthening the Legal Regime, in Particular, the Issues of Criminalization
and International Cooperation
by Group 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76•

Financing of Terrorism
by Group 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83•

Prevention, Detection, Investigation and Prosecution of Terrorism Acts
by Group 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

PART TWOEIGHTH INTERNATIONAL TRAINING COURSE ON
CORRUPTION CONTROL IN CRIMINAL JUSTICE•Country Report: Bangladesh
by Mr. Golam Shahriar Chowdhury (Bangladesh) . . . . . . . . . . . . . . . . . . . . . . . . . . . 103•

Country Report: the Republic of the Fiji Islands
by Ms. Aliti Kiji Choi Bavou (Fiji) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113•

Corruption Control in Criminal Justice: The Madagascar Situation, Problems
and Solutions and Corruption Cases
by Mr. H. Thierry Ravalomanda (Madagascar) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121•

Present Situation, Problems and Solutions in the Legal System Related to
Corruption Control in Uganda
by Mr. Vincent Wagona (Uganda) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

iv

INTRODUCTORY NOTE
It is with pride that the United Nations Asia and Far East Institute for the Prevention of Crimeand the Treatment of Offenders (UNAFEI) offers to the international community the Resource
Material Series No. 71.
This volume contains the work produced in the 132nd International Senior Seminar that was
conducted from 10 January to 9 February 2006 and the Eighth International Training Course on
Corruption Control in Criminal Justice that was conducted from 24 October to 17 November 2005.
The main theme of the 132nd Seminar was, “Strengthening the Legal Regime for Combating
Terrorism”.
The threat terrorism poses to international peace and security has long been recognised by theinternational community. Prior to the attacks on the United States on 11 September 2001 theinternational community had already promulgated 12 of the current 13 international counterterrorism instruments. However, many countries had either failed to accede to these instruments
or failed to incorporate the provisions into their legislation and implement them.
In order for a country to effectively combat terrorism it needs an anti-terrorism legal regime
which will help prevent, detect and punish such offenders. It is also necessary that countries havein place legal instruments to combat transnational organized crimes and a financial system that
isn’t vulnerable to abuse by terrorists. Strengthening anti-terrorism legislation in accordance with
the Conventions and Protocols and implementing anti-terrorism measures in cooperation withother countries should have a significant impact on the prevalence of major terrorist attacks.
The attacks of 11 September prompted the Security Council of the United Nations to adopt
Resolution 1373 (2001) [SCR 1373] calling upon all States to become parties to the relevantinternational conventions and protocols. As a result 121 Member States have either ratified or
acceded to at least 10 of the 13 instruments, and there is no longer any country that has neither
signed nor become a party to at least one of them. Nevertheless, recently a number of major
terrorist attacks have occurred including those in Indonesia, Madrid, Russia, London and India.
In order to fight terrorism effectively it is necessary that all countries become parties to andimplement the universal instruments against terrorism, as called upon by SCR 1373 and more
recently by the Bangkok Declaration of 2005, in order that there is no safe haven in which terrorist
can operate and hide. The aim of the 132nd International Senior Seminar was to assist efforts by
Member States in the fight against terrorism, in particular those efforts towards accession to andimplementation of the relevant legal instruments.
Corruption imposes a wide range of harmful effects on society. In particular, corruption by public
officials seriously undermines their integrity and neutrality in performing their official duties. Thiscan lead to the public’s distrust in the government and its institutions and may lead to its eventual
collapse. Corruption is a problem that constantly needs to be challenged and the reason UNAFEI
holds an international training course specifically on corruption control every year.
In recognition of the harm corruption can cause, especially in developing countries, and the factthat it can transcend national borders, the General Assembly of the United Nations adopted the UN
Convention against Corruption in 2003. The Convention came into force in December 2005 andrequires States Parties to implement a number of measures to tackle corruption in acomprehensive way, including measures directed at prevention, criminalization, international
cooperation, and asset recovery. It is hoped that all countries, including our participants’ countries,
will become party to this Convention and fully implement it, thereby taking a closer step towards
freeing the world from the grip of corruption.

v

In this issue, in regard to the 132nd Seminar, papers contributed by visiting experts, selectedindividual presentation papers from among the participants, and the Reports of the Seminar are
published. I regret that not all the papers submitted by the Seminar participants could be published.
In regard to the Eighth International Corruption Course the papers contributed by the visiting
experts are published.
I would like to pay tribute to the contributions of the Government of Japan, particularly the
Ministry of Justice, the Japan International Cooperation Agency, and the Asia Crime Prevention
Foundation for providing indispensable and unwavering support to UNAFEI’s international training
programmes.
Finally I would like to express my heartfelt gratitude to all who so unselfishly assisted in the
publication of this series; in particular, the editor of Resource Material Series No. 71, Mr. Simon
Cornell.
March 2007

Keiichi Aizawa
Director of UNAFEI

PART ONEWork Product of the 132nd International Senior Seminar“Strengthening the Legal Regime for Combating Terrorism”

UNAFEIVISITING EXPERTS’ PAPERS
THE ROLE OF THE UNITED NATIONS AND UNITED NATIONS OFFICE ON DRUGSAND CRIME IN THE FACILITATION, ACCESSION AND IMPLEMENTATION
OF THE 13 UNIVERSAL LEGAL INSTRUMENTS AGAINST TERRORISM
Jean-Paul Laborde*

I. GLOBAL THREAT
On 10 March 2005, at the International Summit on Democracy, Terrorism and Security, that wasorganized in the memory of the tragic events of 3/11 (as the terrorist attack that happened on 11 March 2004
is often referred to) in Madrid, UN Secretary-General Mr. Annan highlighted once again that… terrorism is a threat to all states and to all peoples, which can strike anytime, anywhere.
It is a direct attack on the core values the United Nations stands for: the rule of law; theprotection of civilians; mutual respect between people of different faiths and cultures; andpeaceful resolution of conflict… the United Nations must be at the forefront in fighting
against it, and first of all in proclaiming, loud and clear, that terrorism can never be acceptedor justified, in any cause whatsoever.1
And indeed, recent developments clearly show that terrorism has become indiscriminate2 and global innature. Therefore, it is natural that, as the only truly global organization with the goals and means ofpreserving peace and security, the UN is expected to be at the forefront of the global action against
terrorism. However, due to the sensitive nature of the phenomenon under scrutiny, many countries havetaken steps to fight terrorism either through regional forums, bilateral arrangements and/or through theirnational agencies. Despite these options, it has to be highlighted again and again that as the only globalorganization, UN has a unique comparative advantage - its multilateral tools that are crucial andindispensable to fight terrorism. It cannot be overstated that a global threat requires a global response. And
indeed as it will seen later on, the UN has several important functions that it is fit to do better than anyone
else.

Table 1: Role of the UN in the Fight against Terrorism:••••

Establishing a universal legal framework against terrorism (international conventions and protocols,
General assembly and Security Council resolutions including those adopted under Chapter VII);
Reinforcing international co-operation in criminal matters against terrorism (universal legal
instruments at work);
Fostering international co-ordination against terrorism (Counter Terrorism Committee, AlQaida/Taliban Committee, 1540 Committee, 6th Committee of GA);
Strengthening the capacity of Member States to comply with their international obligations(Terrorism Prevention Branch of the United Nations Office on Drugs and Crime and several otherUN agencies).

* Chief, Terrorism Prevention Branch, UNODC, Vienna International Centre, Vienna, Austria.
1 Kofi Annan. Keynote address to the Closing Plenary of the International Summit on Democracy, Terrorism and Security.
Accessible at: http://english.safe-democracy.org/keynotes/a-global-strategy-for-fighting-terrorism.html.
2 If before terrorists targeted heads of States and governments and other VIPs, nowadays, ordinary civilians are targeted to
produce an atmosphere of fear and panic among the population. If before members of a terrorist group usually came from one
country, today a national of one country can recruit members of his terrorist organization in another, train them in a third,
receive funds from a fourth, carry out an attack in a fifth and seek safe haven in a sixth.

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RESOURCE MATERIAL SERIES No.71

II. THE UNITED NATIONS OFFICE ON DRUGS AND CRIME AND ITSTERRORISM PREVENTION BRANCH
A. The Branch
The United Nations Office on Drugs and Crime, a specialized office that belongs to the Secretariat of theUN, is stationed in Vienna and carries out the work of the Secretariat on drugs, crime and terrorism. The
General Assembly as well as Economic and Social Council (ECOSOC) and its Commissions on Narcotic
Drugs (CND) and on Crime Prevention and Criminal Justice (CCPCJ) provide the relevant mandate to theoffice in the respective fields. The draft resolutions of the Crime Commission are either adopted by thecommission (rarely) or brought to the ECOSOC, which adopts them or approves those resolutions for
adoption by the General Assembly. In recent years, in addition to its two original areas of work – drugs andcrime, the UNODC has developed a third pillar of its work - delivering legislative technical assistance on
counter-terrorism. It is done through its Terrorism Prevention Branch of the Division for Treaty Affairs(TPB).
The TPB also became an important executing partner for the UN Security Council Counter-Terrorism
Committee (CTC) to implement a criminal justice response to international terrorism. More in particular, it
focuses on the promotion of the ratification and implementation of the thirteen Conventions and Protocols
against terrorism, which were adopted by the international community between 1963 and 2005. 3 The
technical assistance programme, which functions on a request only principle, covers basically the following
tasks:

Table 2: Main Activities of the Terrorism Prevention Branch of UNODC
•
•
•
•
•
•
•

Promote the ratification and implementation of anti-terrorist conventions and protocols
Explain requirements and benefits of these international instruments
Analyze national legislation related to countering terrorism, advise on what is needed to implement
conventions and protocols
Provide sample laws from other countries or model laws
Assist in legislative drafting of anti-terrorist legislation when national resources or experience islimitedTrain criminal justice and law enforcement officials in the implementation of new laws andinternational criminal justice cooperation, including extradition and mutual legal assistance
Organize national and (sub-) regional workshops, usually in cooperation with a requesting
government or other international and regional organizations

Source: UN Office on Drugs and Crime. Terrorism Prevention Branch. Delivering Counter-Terrorism Assistance.
Vienna, TPB, April 2005, p.3.

The strengthening of the international legal regime against international terrorism is the main objectiveof TPB. It is done so through the conventions and protocols in order for States which are parties to these
legal instruments to possess common definitions of certain terrorist offences and so they can exercise
jurisdiction over the offences so defined. By creating extraterritorial jurisdiction (especially in the case of
aircraft and ships) and by being obliged to either bring the terrorists to trial at home or extradite them to arequesting other State, a legal regime is created which leaves no sanctuary to terrorists once all States havebecome parties to all of these treaties – provided they have the capacity to monitor the whereabouts andmovements of suspected terrorists. We are still some distance from having a seamless international regime,
despite a notable increase in ratifications of the instruments in recent years4 (Table 3):

3 See its website: www.unodc.org/terrorism.html – For more information on the thirteen conventions, see:www.un.org/Depts/dhl/resources/terrorism/index.html.
4 The thirteenth instrument, International Convention for the Suppression of Acts of Nuclear Terrorism, was opened forsignatures at the UN World Summit on 14 September 2005 in New York. So far, there are only two ratifications.

4132ND INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

Table 3: Number of Member States, which are Parties to the Twelve Universal Anti-Terrorism
Conventions and Protocols.
Mid-2000

June 2006

1. Tokyo Convention (1963)

169

182

2. Hague Convention (1970)

171

182

3. Montreal Convention (1971)

174

185

4. Int. Protected Persons Convention (1973)

102

162

5. Hostage Convention (1979)

89

153

6. Nuclear Material Convention (1979)

64

117

6a. Amendment to the Nuclear Material Convention (1980)—

3

7. Airports Protocol (1988)

99

158

8. Maritime Navigation Convention (1988)

39

135

8a. Protocol to the Maritime Nuclear Material Convention (2005)

n/a0

9. Fixed Platform Protocol (1988)

35

124

9a. Protocol to the Fixed Platform Protocol (2005)

n/a

0

10. Plastic Explosives Convention (1991)

56

125

11. Terrorist Bombing Convention (1997)

8

146

12. Terrorist Financing Convention (1999)

0153

13. Nuclear Terrorism Convention (2005)

n/a2

Source: Data from UN Office of Legal Affairs; updates by Terrorism Prevention Branch (20/05/2005).

Once all States are parties, the challenge is full implementation, followed by flawless international judicial
cooperation.

B. The Mandate
In the context of the UN’s efforts to prevent and combat terrorism, since 2002 the United Nations Officeon Drugs and Crime (UNODC) has set up an expanded programme of work on technical assistance tocounter terrorism that is based on mandates approved by the UN Commission on Crime Prevention andCriminal Justice and adopted by the General Assembly.
This mandate, carried out by TPB focuses on the provision of assistance to countries, upon request, for
ratifying and implementing the universal legal instruments against terrorism. Since 2002, the General
Assembly, the Economic and Social Council and the Commission on Crime Prevention and Criminal Justice
have reiterated the mandates of TPB. For example, upon the recommendation of the Commission on Crime
Prevention and Criminal Justice and the Economic and Social Council, the General Assembly, in December
2004, adopted resolution 59/153, entitled “Strengthening international cooperation and technical assistancein promoting the implementation of the universal conventions and protocols related to terrorism within theframework of the activities of the United Nations Office on Drugs and Crime”. In that resolution, theAssembly requested the TPB “to intensify its efforts to provide technical assistance in preventing andcombating terrorism, including training judicial and prosecutorial personnel, where appropriate, in theproper implementation of the universal anti-terrorism instruments”.
Particular characteristics of the UNODC are its experience in promoting and facilitating international
cooperation in criminal matters, especially extradition and mutual legal assistance; its operational capacities
and field presence; its programmatic synergy of efforts for dealing with drug control, transnational organizedcrime, money-laundering and corruption.
The Eleventh Congress on Crime Prevention and Criminal Justice, held in Bangkok from 18 to 25 April
2005, further acknowledged the importance of the technical assistance to the UN Member States and in its

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RESOURCE MATERIAL SERIES No.71

outcome document “Synergies and Responses: Strategic Alliances in Crime Prevention and Criminal
Justice” commonly known as the Bangkok Declaration.

Table 4: Extract from the Bangkok Declaration:
We call upon States that have not yet done so to become parties to and implement the universal
instruments against terrorism. In order to enhance the capacity of States to become parties to andimplement those instruments and to comply with the relevant Security Council resolutions against
terrorism, we express our support for the continuing efforts of the United Nations Office on Drugs andCrime, within its mandate and in coordination with the Counter-Terrorism Committee and the CounterTerrorism Executive Directorate of the Security Council, to assist States in their efforts to ratify andimplement those instruments, through the provision of technical assistance upon request. This might
include assistance to criminal justice systems to facilitate the effective implementation of those
instruments.
The latest mandate TPB got from the GA 6th Committee in January 2006 when the Committee, in its
resolution A/RES/60/43, requested the TPB/UNODC “to continue its efforts to enhance, through its
mandate, the capabilities of the United Nations in the prevention of terrorism, and recognizes, in the context
of Security Council resolution 1372(2001), its role in assisting States in becoming parties to andimplementing the relevant international conventions and protocols relating to terrorism, including theInternational Convention on Suppressing of Acts of Nuclear Terrorism, and in strengthening international
cooperation in criminal matters related to terrorism, including through national capacity building”.

C. Cooperation with other UN Bodies
The technical assistance activities of the Terrorism Prevention Branch are undertaken in full compliancewith the decisions and policy guidance of the Security Council’s Counter-Terrorism Committee and in close
coordination with the work of the Counter-Terrorism Committee Executive Directorate (CTED). There is
full complementarity between the normative, policy and monitoring functions of the CTC/CTED and thetechnical assistance provision/delivery functions of UNODC. In its communications with those countries
requiring assistance for reviewing anti-terrorism legislation, CTC makes specific reference to thespecialized assistance available from UNODC, which delivers legislative and advisory services, drawing on
its specialized substantive expertise.
The Branch also works in close coordination with the United Nations Office of Legal Affairs (OLA), theDepartment for Political Affairs and the Office of the United Nations High Commissioner for Human Rights(OHCHR) in order to insure compliance with the relevant parts of their work.

D. Strategy
The objective of the technical assistance activities of the Terrorism Prevention Branch is to strengthen
the legal regime against terrorism. It means providing legal advice to countries on becoming parties to theuniversal legal instruments against terrorism, by assisting countries incorporate these provisions into theirnational penal codes, by providing training to criminal justice officials on the new laws and by assisting
countries in strengthening national institutions dealing with terrorism. When requested, assistance is also
given for preparing the country reports to the Security Council’s Counter Terrorism Committee.
E. Legal Advisory Services to Countries on Becoming Parties to the UN Conventions and Protocols
In order to perform its task of encouraging the adoption and implementation of the universal agreements,
the Terrorism Prevention Branch has to support the countries to continue their efforts to assume theseinternational obligations.
It is therefore the responsibility of the TPB to indicate to the Member States the added value of theuniversal conventions and protocols; and the arguments are the following:
the conventions establish a definition of a particular type of terrorist activity and require that theStates Parties criminalize that conduct according to the definition agreed upon in the convention or
protocol-6

they contribute to establish widespread legal recognition of the defined terrorist offences. This isessential to fulfill the requirement of dual criminality, which is a basic principle of international

132ND INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

cooperation and may be jeopardized if a legal system defines an offence in a way that is notpunishable in other countries.
-

There are other aspects of international cooperation in criminal matters related to terrorism inparticular for the investigative and prosecution phase that depend upon the existence of applicableagreements. Many countries cannot use compulsory process, such as a search warrant or an order tosecure bank records, to assist a foreign police or prosecutorial office except pursuant to legal
authority based on applicable bilateral, multi-lateral or universal agreement. Consequently, it is clearthat international cooperation in criminal matters, particularly extradition, mutual legal assistanceand law enforcement cooperation, is a prerequisite for countering terrorism effectively.

Another facet of the added value of the universal conventions and protocols is the obligation to establish
jurisdiction to sue a suspected offender and to refer the offender for prosecution if he or she is found in theState and extradition is refused under the provisions of an applicable convention. This dominant principle,
known juridically as aut dederre aut judicare , was embodied in all of the criminal conventions andsubsequently made mandatory by Security Council Resolution 1373 which force countries to bring to justice
the penetrator of the terrorist acts, so that there will be no place where an accused terrorist is safe fromextradition or prosecution.
By doing so, the Terrorism Prevention Branch of the United Nations Office on Drugs and Crime is able tofulfill its advocacy role for promoting the universal conventions and protocols against terrorism.
Harmonization of national laws is easiest when laws refer to new crimes for which only a few nations
already have national laws. Money-laundering, for instance, was not, until quite recently, a crime in many
jurisdictions. A country is usually not willing to extradite a person – especially when he or she is a citizen –to another country if the offence for which that person is sought is only a crime in the requesting country
and not at home. Dual criminality in the existence of laws against an offence in both requesting and hosting
country of a criminal is necessary to make extradition possible.
Criminalizing certain harmful acts in all jurisdictions is therefore important if one wants to create aseamless international legal regime against harmful activity such as the financing of terrorism. However,when crimes are planned in one country but executed in another, the planning and preparation for a crimemust also be subject to common international standards. The latest terrorist conventions on bombing andthe suppression of the financing of terrorism also criminalize, next to planning and preparation, participation
in a criminal association that has as its goal the preparation and execution of such acts. Also included is theknowing of financial support for the commission of terrorist acts. The newer conventions also extend thejurisdiction beyond the territory where the offence occurs, taking the nationality of the perpetrator or thevictims into account in the decision to prosecute someone accused of terrorist acts.5 The goal behind these
13 universal legal instruments against terrorism is simple and I mentioned it before but it is worth reiterating it: to create an overarching international legal regime in which there are “no safe havens forterrorists”.

F. Providing Legal Advice to Countries on Incorporating the Conventions and Protocols in their Legal
SystemThe task does not end with the ratification of the conventions and protocols. An important part of thework of the UNODC/TPB is to assist countries in incorporating their dispositions into their own legal
system. To do this, the Terrorism Prevention Branch analyzes national legislation related to counterterrorism and examines the periodic reports of the countries to the Counter Terrorism Committee of the
Security Council. It informs the relevant agencies of any discrepancies between their existing statutory
scheme or proposed legislation and the requirements of the relevant conventions, protocols and Security
Council resolutions, as well as identifies legislative needs together with relevant national authorities.
The creation of an offence of terrorist financing can be used as an example of the approach followed by
the UNODC/TPB when providing advice on the implementation of the universal conventions and protocols.

5 Idem, p. 6.

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RESOURCE MATERIAL SERIES No.71

The most common difficulty with respect to establishing a crime of financing of terrorism results from abelief that the general offence of participation in a crime can be used to punish terrorist financing without
the need to create a separate offence or to amend those definitions in the general part of the code. Veryoften, countries say that they do not need a new or amended law to cover the financing of terrorism because
they will simply punish it as a form of participation in the resulting terrorist bombing, murder or otherviolent offence or attempt, as supplemented by their anti-money laundering laws.
However, while administrative anti-money laundering structures and methods can contribute as useful
information for the fight against terrorism, the financing of terrorism will almost never constitute an offence
under a money laundering law which was not drafted or amended to specifically address the provision orcollection of funds for the purposes of terrorism. Obviously, money-laundering statutes almost always
require proof that the funds laundered are the proceeds of crime. Funds for terrorist financing may derivefrom ordinary crime, such as fraud offences, but more commonly they come from legitimate sources.
Another element to point out is that criminalizing the financing of terrorism only as a form ofparticipation in the principal offences requires that the main offence be completed or attempted. Such alimited definition does not satisfy the Financing Convention, and does not enable the preventive strategy ofinvestigating, prosecuting and punishing terrorist preparations before actual violence occurs.

G. Field Presence
Special efforts have been made to achieve increased field level presence and input, through assigning
regional and sub-regional experts. This has already been done for North Africa and the Middle East, Southand Central America, the Commonwealth of Independent States (CIS), Central Asia, South-East Asia and thePacific. These experts provide specialized national and sub-regional input and perspectives and facilitate
effective follow-up to the activities of the Branch. An important parallel objective of this initiative is to buildup sub-regional expertise on counter-terrorism issues. This field presence is necessary to insure proper
practical expertise and experience as well as relevant follow-up to the advisory services provided.
H. Operational Partnerships
Efforts have also been made to maximize impact through operational partnerships and complementarityof efforts. In this regard, technical assistance activities are undertaken in close partnership and cooperation
with numerous international, regional and sub-regional organizations. These include, but are not limited to,
the United Nations High Commissioner for Refugees (UNHCR), Organization of American States (OAS), theOrganization for Security and Cooperation in Europe (OSCE), the Commonwealth Secretariat, theInternational Monetary Fund, the African Union (AU), the International Organization of la Francophone, theNorth Atlantic Treaty Organization (NATO), the Economic Community of West African States (ECOWAS),
the Economic Community of Central African States (ECCAS), the League of Arab States, Interpol, theInternational Civil Aviation Organization (ICAO), the Counter-Terrorism Working Group of the European
Union (COTER), the Financial Action Task Force (FATF) and the Counter Terrorism Action Group (CTAG)of the G-8.
I. The Global Project on “Strengthening the Legal Regime against Terrorism”
In order to realize the activities, a global project on “Strengthening the Legal Regime against Terrorism”
provides the overall framework for delivering technical assistance to countries. It functions as an on-going‘rolling’ project, with global, sub-regional and national components and activities. It is regularly revised andup-dated, to determine continued relevance of all elements, discontinue those components which are nolonger essential and to integrate new initiatives in response to new requirements.
Through the project, assistance was provided to 112 countries between October 2002 and March 2005.
Of those 112 countries, more than 60 received direct assistance and the others received indirect assistancethrough sub-regional and regional activities. Over 600 national officials have been trained on the ratificationand implementation requirements. They were familiarized with the provisions of the 12 universal legal
instruments against terrorism and the requirements of Security Council resolution 1373 (2001).
During the period October 2002 to December 2004 the Branch achieved a project implementation rate ofclose to 100 per cent in relation to funds made available, thus meeting the Branch’s goal of utilization of8132ND INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

provided funds within a period of 12 months. 6 This was accomplished through advance planning andinitiation of project activities in anticipation of receipt of pledged voluntary contributions.
The scope of assistance provided through this project has been broadening, in terms of its geographicalreach, the numbers of countries receiving assistance, and the substantive content of the assistance provided.
In the future, increased attention will be given to implementation assistance, as more countries ratify theuniversal instruments.

J. Perspectives
As the universal legal instruments against terrorism will be achieving a universal level of ratification,
new project activities will be given priority:• Legislative drafting assistance to incorporate universal provisions into national legislation• Strengthening institutional judicial structures necessary for anti-terrorism cooperation• Providing on-line technical assistance on extradition and mutual legal assistance requests• Providing support for establishing international cooperation mechanisms through mentorship, bothto speed the process and achieve compliance with international standards• Training national criminal justice officials, on the basis of the universal legal instruments and inaccordance with criminal justice standards
Moreover, continued attention will be given to follow-up measures. The Branch will also undertake
evaluations and impact assessment of its technical assistance.
After this overview of the role of UNODC/TPB, we can now proceed to other UN bodies involved in thefight against terrorism.

6 The 2005 activities are currently under review and evaluation.

9

COUNTERING TERRORISM:
NEW INTERNATIONAL CRIMINAL LAW PERSPECTIVESJean Paul Laborde*
I. BACKGROUND
In 1994 the United Nations General Assembly established that terrorism was “criminal and unjustifiable,
wherever and by whomever committed”… “what ever the considerations of a political, philosophical,
ideological, racial, ethnic, religious or any other nature that may be invoked to justify them”.1 By defining
terrorism as a crime rather than as an international security issue, the General Assembly has chosen acriminal law approach rather than a war model of fighting terrorism. 2 While the General Assembly
categorized international terrorism in 1994 in terms of a criminal justice model as a serious crime, theUnited Nations Security Council categorized it, on 12 September 2001, in resolution 1368, “like any act ofinternational terrorism, as a threat to international peace and security”, thereby applying a security rather
than a crime model to such acts. It is widely accepted that a number of countries are strongly supporting the
Security Council approach while other members of the international community feel more comfortable with
the General Assembly method. Nevertheless, as we will see, with the passage of its resolutions 1267 (1999),
1373 (2001), 1624 (2004) and several others, the United Nations Security Council (UNSC or just SC) has put
unprecedented obligations on Member States to implement its decisions through their national criminal
justice systems. Taking into account that UNSC resolutions are usually not written by international criminal
law specialists, it leaves States under a heavy burden of finding their own ways to live up to theircommitments under the UN Charter. We, at the Terrorism Prevention Branch of the United Nations Officeon Drugs and Crime, stand readily to provide assistance to countries, upon request, for ratifying andimplementing the universal legal instruments against terrorism, strengthening their national legislative basefor complying with their international obligations on developing a robust international legal regime against
terrorism (please refer to the Appendix). It is widely accepted that a working international legal regime
against terrorism will help us to bring terrorists to justice and prevent future possible attacks. Therefore,
more and more accent is put not on punishing terrorists for the acts already committed (although it does
remain an extremely important function of a criminal justice system) but rather on preventing new attacks
from happening.

II. NEW APPROACH
In one of the TPB working papers it is explained that “‘Proactive law enforcement’ is a phrase used toconvey a contrast with ‘reactive law enforcement’. The proper grammatical usage may simply be “active” or“activist”, but the adjective “proactive” has become accepted in both popular and criminological writing.
Proactive law enforcement emphasizes preventing and interrupting crime, rather than reacting to crimes
already committed, and its novelty is often overstated. Public safety authorities have always attempted bothto prevent crime and to solve offences already committed, although the two functions have sometimes beeninefficiently separated and characterized by a lack of communication. Nevertheless, the label “proactive” isnow used for almost every initiative to reduce crime, having been expanded far beyond its original reference
to police patrolling (emphasis added)”3
Terrorism is one of the gravest crimes. Therefore, it would be logical to conclude that a great deal ofattention should be paid to preventing possible terrorist attacks. Referring to the above-mentioned paper a
successful proactive criminal justice approach to terrorism prevention would need ‘a strategy to permit
intervention against terrorist planning and preparations before they mature into action. The goal is to* Chief, Terrorism Prevention Branch, UNODC, Vienna International Centre, Vienna, Austria.
1 Declaration on Measures to Eliminate International Terrorism. General Assembly resolution 49/60 of 9 December 1999.
Annex; repr. in United Nations. International Instruments related to the Prevention and Suppression of International
Terrorism. New York, UN Office of Legal Affairs, 2001, p. 233.
2 M. J. Peterson. Using the General Assembly. In: J. Boulden & Th. G. Weiss, op .cit., p. 183.
3 Preventing Terrorist Acts: A Criminal Justice Strategy Integrating Rule of Law Standards in Implementation of United
Nations Anti-Terrorism Instruments. Terrorism Prevention Branch Technical Assistance Working Paper. P.2.

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proactively integrate substantive and procedural mechanisms to reduce the incidence and severity ofterrorist violence and to do so within the strict constraints and protections of the civilian criminal justicesystem and the rule of law’ 4 (emphasis added).
Thus, countering terrorism through penal prevention would mean criminalizing acts that are committed
BEFORE any terrorist acts take place. And indeed in recent years, the international community has moved
in this direction. Most importantly there were efforts made to criminalize recruitment, training, supplying
weapons to, support, financing, conspiracy, incitement, and glorification of terrorism.
Thus UNSC resolution 1373 (2001) “Decides that all States shall: (a) Prevent and suppress the financing
of terrorist acts; Decides also that all States shall: (a) Refrain from providing any form of support, active or
passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members ofterrorist groups and eliminating the supply of weapons to terrorists; (b) Take the necessary steps to preventthe commission of terrorist acts, including by provision of early warning to other States by exchange of
information; (c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide
safe havens; (d) Prevent those who finance, plan, facilitate or commit terrorist acts from using theirrespective territories for those purposes against other States or their citizens; (e) Ensure that any person
who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting
terrorist acts is brought to justice and ensure that, in addition to any other measures against them, suchterrorist acts are established as serious criminal offences in domestic laws and regulations and that thepunishment duly reflects the seriousness of such terrorist acts;…“. Ideally these provisions of the
Resolution should be incorporated into criminal codes of the countries in order to insure that they become
separate criminal offences punishable under national laws.
The UNSC in its Resolution 1624(2005) further expanded this list of offences to incitement when it
decided to “Calls upon all States to adopt such measures as may be necessary and appropriate and inaccordance with their obligations under international law to:(a) Prohibit by law incitement to commit a terrorist act or acts;(b) Prevent such conduct;(c) Deny safe haven to any persons with respect to whom there is credible and relevant information
giving serious reasons for considering that they have been guilty of such conduct.”5

III. CHALLENGES TO NATIONAL CRIMINAL JUSTICE SYSTEMSAs we all have read and heard in recent years, this trend to outlaw the preparatory and supporting acts
committed before or even regardless of whether actual terrorist attacks take place have attracted a lot of
criticism from human rights activists. The concern is that new legislation is contradictory to the humanrights standards and obligations under international human rights norms.
On the one hand, these concerns are very understandable in the countries with weak criminal justicesystems where there is a certain risk that these offences will be used for political reasons.
On the other hand, the argument that these new proposed offences are contradictory to the international
legal human rights norms is not correct.
Let us go back to the cornerstone of international human rights law – the International Covenant on Civil
and Political Rights (ICCPR). Article 6 of the Covenant, from which no derogation is permitted, provides
that:
Every human being has the inherent right to life. This right shall be protected by law. No one
shall be arbitrarily deprived of his life.
As the TPB working paper quoted above explains this provision:
To the average person, protecting the right to life means preventing its loss, not punishingthose responsible for a successful or attempted deprivation. Protection by law thus demands

4 Ibid.
5 UNSC resolution 1624 (2005). P.3. par 1.

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legal measures to interrupt and interdict preparations for terrorist violence, not merely theidentification and punishment of the perpetrators after a fatal event. (emphasis added).6
We can therefore conclude that all the recent criminal justice initiatives to criminalize the conduct thatfacilitates the possibility of commission of terrorist acts, regardless of whether or not actual attacks takeplace, are not only in full compliance with but are aimed at safeguarding a fundamental human right - theright to life!

IV. NEW INTERNATIONAL CRIMINAL JUSTICE POLICYWith its recent move to criminalize conduct facilitating the commission of terrorist attacks and imposing
legal obligations on the UN Member States to strengthen their criminal justice systems to be better
equipped to prevent the terrorist attacks from happening, the Security Council moved into domaine reserveof sovereign States - their criminal justice system and policy. It has done so on the basis of the United
Nations Charter-document that all countries have to agree to when they are becoming a member of theUnited Nations.
The following Articles of the Charter will help us to better understand the authority of the Security
Council in these matters.

Article 24
In order to ensure prompt and effective action by the United Nations, its Members confer on
the Security Council primary responsibility for the maintenance of international peace andsecurity, and agree that in carrying out its duties under this responsibility the Security Council
acts on their behalf.
Article 25
The Members of the United Nations agree to accept and carry out the decisions of the Security
Council in accordance with the present Charter.
Article 103
In the event of a conflict between the obligations of the Members of the United Nations under
the present Charter and their obligations under any other international agreement, their
obligations under the present Charter shall prevail.

V. CONCLUDING REMARKSThe UN is often criticized for its action (or more accurately lack of action) on terrorism. “Lack of thedefinition” of terrorism, not addressing its “root causes”, “victims” and other issues are often cited by thecritics to highlight UN impotence in dealing with this gravest manifestation of crime. But the critics often
fail to acknowledge that these accusations do not reflect the reality adequately and present only a one-sided
picture of the problem.
The UN effectively addresses various issues related to the fight against terrorism through its different
departments and agencies. For example, on the “root causes of terrorism front” the UNDP deals withpoverty and UNHCHR deals with the issues of human rights. UNODC supports countries in their efforts topromote the rule of law. And finally, the International Criminal Court, although it does not deal withterrorism directly does have a victims’ fund that could be applicable to the victims of taking hostages whichis under its jurisdiction according to the Statute. And most importantly, although a comprehensive definitionof terrorism would be extremely useful, the international legal regime against terrorism exists and if allowed
to work properly (especially with regard to the provisions of international cooperation in criminal matters)
could contribute greatly to the work of the nations of the world on the counter-terrorism front.

6 Preventing Terrorist Acts: A Criminal Justice Strategy Integrating Rule of Law Standards in Implementation of United

Nations Anti-Terrorism Instruments. Terrorism Prevention Branch Technical Assistance Working Paper. P.1.

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APPENDIX
Number of Member States, which are Parties to the Twelve Universal Anti-Terrorism
Conventions and Protocols.
Mid-2000

November 2006

1. Tokyo Convention (1963)

169

182

2. Hague Convention (1970)

171

183

3. Montreal Convention (1971)

174

184

4. Int. Protected Persons Convention (1973)

102

163

5. Hostage Convention (1979)

89

156

6. Nuclear Material Convention (1980)

64

120

6a. Amendment to the Nuclear Material Convention (2005)—

6

7. Airports Protocol (1988)

99

160

8. Maritime Navigation Convention (1988)

39

141

8a. Protocol to the Maritime Convention (2005)

n/a0

9. Fixed Platform Protocol (1988)

35

130

9a. Protocol to the Fixed Platform Protocol (2005)

n/a

0

10. Plastic Explosives Convention (1991)

56

129

11. Terrorist Bombing Convention (1997)

8

150

12. Terrorist Financing Convention (1999)

0154

13. Nuclear Terrorism Convention (2005)

n/a8

Source: Data from UN Office of Legal Affairs; updates by Terrorism Prevention Branch (20/05/2005).

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THE UNITED NATIONS IN THE FIGHT AGAINST TERRORISM
Javier Rupérez*I. INTRODUCTION
International efforts to eliminate terrorism started years before the United Nations was established.
Terrorism was of concern to the international community as early as 1937, when the League of Nations
prepared a draft convention for the prevention and punishment of terrorism. The draft convention definedterrorism as:“All criminal acts directed against a State and intended or calculated to create a state of terror in theminds of particular persons or a group of persons or the general public.”1
Although this convention never came into existence and the definition ignores acts against civilians, rather
than against the State per se, it did serve as a point of reference for later discussion of terrorism when the
United Nations and regional intergovernmental organizations dealt with the issue from a legal and politicalperspective.

II. THE GENERAL ASSEMBLY
Despite many years of debate, the General Assembly has thus far been unable to agree on a definition ofterrorism. But lack of agreement on a definition does not mean that the international community has madeno progress in combating the problem.
The United Nations and other international organizations have managed to formulate ad hoc conventions
dealing with specific forms of terrorism. Since 1963, the international community has elaborated 13 legal
instruments related to the prevention and suppression of international terrorism2. The most recent, theInternational Convention for the Suppression of Acts of Nuclear Terrorism, was opened for signature on 14
September 2005.
Over the years, levels of awareness of the phenomenon of terrorism has depended on the experience of
the international community as a whole at any given time. Following the attack on Lod airport, near Tel Aviv,
and the kidnapping and killing of 11 Israeli athletes during the Olympic Games at Munich in 1972, the issueof terrorism became the epicenter of attention and contention in the General Assembly when, by note dated
8 September 1972, then Secretary-General Kurt Waldheim requested the General Assembly to include in
the agenda of its twenty-seventh session an additional item of an important and urgent character, entitled“Measures to prevent terrorism and other forms of violence which endanger or take innocent human lives or
jeopardize fundamental freedoms”3.
* Executive Director, Counter-Terrorism Committee Executive Directorate, United Nations.
The views expressed in this paper are not necessarily those of the United Nations Counter-Terrorism Committee.
1 19 League of Nations O. J. 23 (1938) (never entered into force).
2 These are:
• The Convention on Offences and Certain Other Acts Committed On Board Aircraft (1963);• The Convention for the Suppression of the Unlawful Seizure of Aircraft (1970);• The Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971);• The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons (1973);• The Convention against the Taking of Hostages (1979);• The Convention on the Physical Protection of Nuclear Material (1980);• The Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (1988);• The Protocol for the Suppression of Unlawful acts against the Safety of Fixed Platforms Located on the Continental Shelf(1988);• The Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988);• The Convention on the Marking of Plastic Explosives for the Purpose of Detection (1991);• The International Convention for the Suppression of Terrorist Bombings (1997);• The Convention for the Suppression of Terrorist Financing (1999); and• The International Convention for the Suppression of Acts of Nuclear Terrorism (2005).
3 See document A/8791 of 8 September 1972.

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The General Assembly, as is logical given its membership and decision-making norms, accurately mirrors
the global view of terrorism over the past three decades. Three different periods may be distinguished: thefirst, from 1972 to 1991, is characterized by the terms used in resolutions of the period: proposals of“measures to prevent terrorism”. From 1972 to 1989, consideration of terrorism as a general problem was
assigned primarily to the Sixth Committee of the General Assembly under an agenda item entitled“Measures to prevent international terrorism”. At that time, there was a clear disagreement within themembership as to whether terrorism should be prevented through cooperation in suppressing its
manifestations or removal of its root causes.
A second period covers the period 1993 to 2001. During this period, the basic considerations were humanrights and terrorism and measures to eliminate international terrorism, reflecting broader agreement thatthe existence of root causes did not justify terrorist acts. Since then, the General Assembly has issued
numerous resolutions condemning acts of terrorism and calling on Member States to cooperate with eachother in order to prevent and eliminate terrorism.
The events of 2001 did much to change the orientation of the General Assembly’s counter-terrorism
policy. In the third (and current) period, the concept and terminology are evolving towards discussion of
measures to eliminate terrorism. The disappearance of the former bipolar confrontation has had a favorable
impact on the Organization and its ability to act. This development is a reminder that it is the standardsetting activity of the General Assembly that has given rise to the international conventions and protocols
on terrorism whose implementation the Security Council upholds today as fundamental in the global
counter-terrorism effort.
What is widely recognized, however - sometimes with a hint of reproach - is that the United Nations and,more specifically, the General Assembly has thus far been unable to establish a commonly accepted
definition of terrorism. Nor has it been capable of concluding a global counter-terrorism convention, of which
a definition should be a fundamental part. Indeed, since 1996, the General Assembly has been considering a
draft which had its origin in a proposal by India and which, in practice, would be close to finalization were it
not for continuing disagreement over this issue. The difficulties are well known: for a significant number ofMember States, recourse to terrorism cannot be justified under any reason or circumstance. That position
has been reiterated in United Nations documents and in statements by the Secretary-General, the Security
Council and the General Assembly, including the Summit Declaration of September 2005.4
4 The Outcome Document of the World Summit includes the following paragraphs on terrorism:

Terrorism
81. We strongly condemn terrorism in all its forms and manifestations, committed by whomever, wherever and for whatever
purposes, as it constitutes one of the most serious threats to international peace and security.
82. We welcome the Secretary-General’s identification of elements of a counterterrorism strategy. These elements should be
developed by the General Assembly without delay with a view to adopting and implementing a strategy to promotecomprehensive, coordinated and consistent responses, at the national, regional and international levels, to counter terrorism,
which also takes into account the conditions conducive to the spread of terrorism. In this context, we commend the various
initiatives to promote dialogue, tolerance and understanding among civilizations.
83. We stress the need to make every effort to reach an agreement on and conclude a comprehensive convention oninternational terrorism during the sixtieth session of the General Assembly.
84. We acknowledge that the question of convening a high-level conference under the auspices of the United Nations toformulate an international response to terrorism in all its forms and manifestations could be considered.
85. We recognize that international cooperation to fight terrorism must be conducted in conformity with international law,
including the Charter and relevant international conventions and protocols. States must ensure that any measures taken tocombat terrorism comply with their obligations under international law, in particular human rights law, refugee law andinternational humanitarian law.
86. We reiterate our call upon States to refrain from organizing, financing, encouraging, providing training for or otherwise
supporting terrorist activities and to take appropriate measures to ensure that their territories are not used for such activities.
87. We acknowledge the important role played by the United Nations in combating terrorism and also stress the vital contributionof regional and bilateral cooperation, particularly at the practical level of law enforcement cooperation and technical exchange.
88. We urge the international community, including the United Nations, to assist States in building national and regional
capacity to combat terrorism. We invite the Secretary-General to submit proposals to the General Assembly and the Security
Council, within their respective mandates, to strengthen the capacity of the United Nations system to assist States in combating
terrorism and to enhance the coordination of United Nations activities in this regard.
89. We stress the importance of assisting victims of terrorism and of providing them and their families with support to cope with
their loss and their grief.
90. We encourage the Security Council to consider ways to strengthen its monitoring and enforcement role in counterterrorism, including by consolidating State reporting requirements, taking into account and respecting the different mandates of
its counter-terrorism subsidiary bodies. We are committed to cooperating fully with the three competent subsidiary bodies in
the fulfillment of their tasks, recognizing that many States continue to require assistance in implementing relevant Security
Council resolutions.
91. We support efforts for the early entry into force of the International Convention for the Suppression of Acts of Nuclear
Terrorism and strongly encourage States to consider becoming parties to it expeditiously and acceding without delay to thetwelve other international conventions and protocols against terrorism and implementing them.

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However, other Member States maintain that in certain circumstances – such as the fight against foreign
occupation – the use of violence does not constitute terrorism. That divergence has been further deepened
by disagreement on the legal status of the armed forces in conflicts involving non-State actors: should the
Geneva Conventions on humanitarian law or international counter-terrorism norms prevail?
Both the report of the High Level Panel on Threats, Challenges and Change and the Secretary-General,in his Madrid address, were very precise in this respect. The High Level Panel concluded as follows:“158. Since 1945, an ever stronger set of norms and laws - including the Charter of the United Nations,
the Geneva Conventions and the Rome Statute for the International Criminal Court - has regulated andconstrained States’ decisions to use force and their conduct in war - for example in the requirement todistinguish between combatants and civilians, to use force proportionally and to live up to basic
humanitarian principles. Violations of these obligations should continue to be met with widespreadcondemnation and war crimes should be prosecuted.
“159. The norms governing the use of force by non-State actors have not kept pace with those pertaining
to States. This is not so much a legal question as a political one. Legally, virtually all forms of terrorism
are prohibited by one of 12 international counter-terrorism conventions, international customary law, theGeneva Conventions or the Rome Statutes. . .
“160. The search for an agreed definition usually stumbles on two issues. The first is the argument thatany definition should include States’ use of armed forces against civilians. We believe that the legal andnormative framework against State violations is far stronger than in the case of non-State actors and we
do not find this objection to be compelling. The second objection is that peoples under foreign occupation
have a right to resistance and a definition of terrorism should not override this right. The right toresistance is contested by some. But it is not the central point: the central point is that there is nothing in
the fact of occupation that justifies the targeting and killing of civilians.”
Similarly, in his Madrid address, the Secretary-General argued that:“The report of the High-Level Panel offers us a way to end these arguments. We do not need to argue
whether States can be guilty of terrorism, because deliberate use of armed force by States against
civilians is already clearly prohibited under international law. As for the right to resist occupation, it must
be understood in its true meaning. It cannot include the right to deliberately kill or maim civilians. The
Panel calls for a definition of terrorism which would make it clear that any action constitutes terrorism if
it is intended to cause death or serious bodily harm to civilians and non-combatants, with the purpose of
intimidating a population or compelling a Government or an international organization to do or abstain
from any act. I believe this proposal has clear moral force, and I strongly urge world leaders to unite
behind it.”Indeed, in order to conclude the accelerating effort to develop a global counter-terrorist policy led by theUnited Nations, it would be helpful to have both the convention and the definition.
At this point, an observation of a general nature should be made. In this field, as in others which receive
the attention and concern of the United Nations, the inability to reach agreement is often attributed to thefaults and problems of the Organization, as distinct from its Member States. But while the Organization as
such is not without its shortcomings, we cannot forget the responsibility of Member States, whose will madepossible the existence of the United Nations and today continues to dictate what the Organization, can andcannot do. This is particularly true with respect to the General Assembly’s efforts to agree on the text of thedraft comprehensive convention on terrorism.
This observation should not be understood as a criticism of the Member States in general, or of any ofthem in particular. It is simply a reminder of where the power of the United Nations is vested - in thesovereignty of Member States - and of the way in which the Organization is a mirror of changing, and notalways positive, developments in international relations. However, it would be malicious and incorrect to saythat the Organization cannot do anything to help States in the fight against terrorism or, still more radically,that nothing can be done in the absence of a definition. These self-serving assertions, however tempting, arebelied by reality.

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On one hand, the absence of a definition of terrorism has not prevented the General Assembly frompreparing the counter-terrorism conventions and protocols which the international community has adopted
in the past and which contain descriptions of all the elements associated with the perpetration of terrorist
acts. On the other hand, the international community’s heightened awareness of terrorism, as reflected in
the decisions of the General Assembly, is proof that tolerance of terrorism and its manifestations is minimal
if not non-existent. Apart from the terrorists themselves and their sympathizers, it is extremely rare to hearwords of praise or justification of terrorist acts. Mention of the “root causes” of terrorism, often asmokescreen for justification, is made today in more discreet and cautious tones and it has become more
possible to approach this aspect of the problem – the extent to which political, social or economic
circumstances might explain the recourse to terrorist methods or, alternatively, the attempt by terrorists to
use these conditions in an attempt to justify their actions – in a reasonable and accurate manner.
Thus, the General Assembly has addressed international terrorism by developing a normative frameworkthat identifies terrorism as a problem common to all Member States and by encouraging concerted
governmental action to develop more specific national and international instruments to address it. The
solutions proposed, always within the framework of respect for international law and cooperation between
States which is the cornerstone of the Charter, have been gradually strengthened to the point that they havebecome obligatory as the scope and deadliness of terrorism continue to grow. The package of counterterrorism measures that the United Nations now imposes on its 191 Member States constitutes a strong,solid and reasonable bulwark. Despite initial hesitation and some remaining reticence, United Nations
counter-terrorism policies and doctrines are today a critical point of reference when confronting one of themost serious and visible threats to the security of mankind at the dawn of the twenty-first century.

III. THE SECURITY COUNCIL
The Security Council is the United Nations organ that has borne most of the responsibility for addressing
the problem of terrorism. And, contrary to widespread belief, it has been doing so since the early 1990s,
nearly 10 years before the terrorist attacks of 11 September 2001. In the late 1980s, a number of shocking
terrorist acts jolted the conscience of mankind. In December 1988, Pan-Am flight 103 crashed in the Scottish
village of Lockerbie when a bomb placed on board the aircraft exploded. The 259 passengers on board and 11
persons on the ground were killed. In September 1989, the French UTA flight 772 crashed in the Niger after
a device on board the aircraft exploded; a total of 171 persons died. In both cases, the Libyan Arab Jamahiriya
was alleged to have been involved in the attacks. On 26 June 1995, a group of terrorists made an
unsuccessful attempt on the life of President Hosni Mubarak of Egypt, who was attending a meeting of theOrganization of African Unity in Addis Ababa. Three of the suspects sought refuge in the Sudan, whose
Government declined to grant Egypt’s request for their extradition.
In January 1992, Security Council resolution 731 (1992) warned the Libyan Arab Jamahiriya of theconsequences if it failed to hand over the suspects. In March of that year, resolution 748 (1992), whichcharacterized the Libyan actions as a threat to international peace and security and invoked Chapter VII of
the Charter of the United Nations in imposing a broad range of sanctions, was adopted. It was later
reinforced by resolutions 883 (1993) and 1192 (1998). As a result of the sanctions imposed by the Security
Council, France obtained from Libya partial satisfaction of its demands in 1996 and six Libyan nationals weretried and convicted of participation in the attacks on the UTA plane. The two Libyan citizens suspected ofhaving organized the attacks on the Pan-Am flight were handed over to the Netherlands on 5 January 1999 to
be tried by Scottish judges under Scottish law. One defendant, Abdel Basset al-Megrahi, was convicted ofmurder in 2001 and sentenced to life in a Scottish prison. On 12 September 2003, after the Libyan Arab
Jamahiriya formally stated that it accepted responsibility for the actions of its officials and agreed to pay
billions of dollars to the victims’ families, the Security Council lifted the sanctions imposed on it.
Following the Sudan’s refusal to grant extradition of the individuals suspected of carrying out the attacks
on the life of President Mubarak, the Security Council imposed economic sanctions and a ban on commercial
flights. The sanctions, which had a marked effect on the conduct of the Sudanese authorities, were lifted on
28 September 2001 after the Government decided to expel various individuals suspected of terrorism,
including Osama Bin Laden himself.

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IV. THE 1267 COMMITTEE
On 7 August 1998, two powerful bombs exploded simultaneously in the American embassies in Kenya
and Tanzania. The attacks caused a total of 263 deaths, including 12 Americans, and injured more than 5,000
people. In Security Council resolution 1189 (1998), adopted immediately after the attacks, a vigorous
condemnation was accompanied by a demand for Member States’ cooperation in the investigation. The
perpetrators were gradually identified as followers of Bin Laden and members of the Al Qaida network,
which was then based in Afghanistan under the protection of the Taliban Government. The Council imposeda range of economic sanctions on the Government of Afghanistan and demanded that the Taliban cease its
support for international terrorism and extradite Bin Laden. The sanctions regime was reinforced in
December 2000 and again in 2001. In paragraph 6 of its resolution 1267 (1999) on Al Qaida and the Taliban
and related persons and entities, the Security Council established a committee to monitor compliance withthe sanctions, known as the Al Qaida and Taliban Sanctions Committee or the 1267 Committee, in order tohelp the Council verify Member States’ compliance with the sanctions regime.

V. THE COUNTER-TERRORISM COMMITTEE
The terrorist attacks of 11 September 2001 in New York, Washington and Pennsylvania caused a shock
felt and remembered by all. The United Nations’ response to the attacks was prompt and decisive. On 12
September 2001, the Security Council unanimously adopted resolution 1368 (2001), whose main and novel
feature lay in its invocation of the right to individual or collective self-defense under the terms of Article 51of the Charter and which solemnly called upon all Member States to work together “to bring to justice theperpetrators, organizers and sponsors” of terrorists acts and to “redouble their efforts to prevent andsuppress” them. This resolution is considered a turning point as it legitimized the use of force to fightterrorism.
A few days later, on 28 September 2001, the Security Council invoked Chapter VII of the Charter andunanimously adopted resolution 1373 (2001), which represented a major qualitative and quantitative advancein the new approach to terrorism that the United Nations was seeking to impose. The resolution, which isbinding on all Member States, imposes a wide range of legal, financial, police and cooperation measures. It
also requires all Member States to ratify and implement the provisions of the international counterterrorism instruments. Resolution 1373 (2001) also established the Counter-Terrorism Committee, asubsidiary organ of the Security Council comprising all 15 of its members and charged with monitoring
compliance with the resolution. The Committee was instructed to begin its work by requesting all Member
States to submit reports on the measures that they had adopted in implementation of the Council’s
decisions.
In adopting resolution 1373 (2001), the Security Council was entering a virtually new area of theOrganization’s political and legal life by requiring, inter alia, the criminalization of terrorism and the acts ofperpetrators, accomplices and financiers. At the same time, the resolution calls upon States to ratify theinternational counter-terrorism conventions and incorporate them into domestic law. Resolution 1373
(2001), unlike those referred to previously, does not impose penalties on States which are responsible foracts considered reprehensible by the Council or which collaborate with such States; instead, it represents a
decision on the measures that all Member States should adopt in the fight against terrorism.
In the four years of its existence, the Counter-Terrorism Committee has maintained an active, rigorous
correspondence with Member States. It is clear that Resolution 1373 (2001) has contributed to thedevelopment of an environment in which no one dares any longer to question the obligation of all States tocooperate in the effort to isolate terrorists and terrorism.

VI. THE COUNTER-TERRORISM COMMITTEE EXECUTIVE DIRECTORATEIn the early days of its work, the Committee had only a small number of experts and support personnel.
In late 2003, some of its members drew attention to the inadequacy of these resources and to the need to“revitalize” the Committee. A report on this topic (S/2004/124), adopted by the Committee on 19 February
2004, proposed the establishment of a Counter-Terrorism Committee Executive Directorate (CTED),
headed by an Executive Director who would be appointed at the level of Assistant Secretary-General andwould work under the policy guidance of the Committee. The document was unanimously endorsed by the18

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Council in its resolution 1535 (2004) of 26 March 2004.
On 18 May 2004, in compliance with the provisions of resolution 1535 (2004) and with the approval of the
Security Council, the Secretary-General appointed an Executive Director who took up his functions on 28
June. Since then, I have focused my activities on what is, in fact, the core and ongoing aspect of his mandate –to propose working frameworks to the Committee, implement its decisions, develop frameworks forcooperation with States and international organizations, undertake the urgent and immediate task ofobtaining budgetary approval for the expenditures of the new entity, and proceed with the recruitment ofstaff. With a staff of carefully chosen experts responsible for assisting the Committee in its work, CTED was
declared fully staffed in September 2005 and fully operational in December 2005.
CTED represents a shift into a new phase of the United Nations’ efforts to eradicate terrorism; theexperts of its primary counter-terrorism body maintain an intensive dialogue with Member Statesconcerning their implementation of resolution 1373 (2001). This dialogue involves, in the first phase,collecting from States written reports on their implementation of the counter-terrorism obligations set forthin the resolution. All Member States are required to submit such reports, which serve as the basis for an
active dialogue with the Committee and CTED. A more thorough dialogue occurs in the context of country
visits, which are a more focused, practical follow-up with the national authorities responsible for
implementing the various provisions of the resolution. The visits are conducted with the consent of the hostcountry and in full cooperation with its authorities. Following each visit, the counter-terrorism experts
compile a report based on their on-site observations in order to assist the State in its implementation of theresolution and to identify the State’s assistance needs. On that basis, and in full cooperation with theMember State, CTED then works with donor countries and international organizations to facilitate provisionof the necessary assistance.
One of CTED’s tasks is that of coordination. In order to avoid duplication of effort and to achieve the best
results, CTED cooperates and coordinates its work with international and regional organizations andimplements some of the best practices and guidelines developed by these organizations in its assessment
methodology.
Cooperation is also achieved in the on-site visits; experts from these organizations participate in CTED’s
visits and share with its experts their views on the best ways to assist Member States in implementing
resolution 1373 (2001).

VII. THE 1540 COMMITTEEOther recent resolutions of the Council also deserve mention. In resolution 1540 (2004) of 28 April 2004,
the Council notes with concern the possibility that terrorists might use chemical, biological and nuclear
weapons of mass destruction. The text of the resolution, which falls under Chapter VII of the Charter of theUnited Nations, imposes a detailed set of obligations on Member States in order to ensure that terrorists,
here characterized as “non-State agents”, do not come into possession of such weapons. The resolution
states that the agents to which it refers are those described in resolution 1267 (1999) (on Al Qaida and the
Taliban and related persons and entities) and 1373 (2001) (on counter-terrorism) and establishes, for aperiod of no more than two years, a Committee as a subsidiary organ of the Security Council responsible formonitoring compliance with its requirements.
Thus, through these key resolutions, the Security Council has established three subordinate bodies todeal with terrorism: the 1267 Committee, created in the late 1990s in order to monitor compliance with the
sanctions on the Taliban and Al-Qaida and to maintain a list of internationally designated terrorists to beapprehended and brought to justice; the Counter-Terrorism Committee, with its Executive Directorate; andthe 1540 Committee, which is responsible for keeping weapons of mass destruction out of the hands of nonState actors.

VIII. SECURITY COUNCIL RESOLUTION 1566 (2004)
Among the measures taken by the Security Council in its development of a global counter-terrorism
strategy, mention should be made of the recent adoption of two resolutions.

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Resolution 1566 (2004), unanimously adopted on 8 October 2004 under Chapter VII of the Charter of theUnited Nations, has its origin in a draft presented by the Russian Federation following the terrorist attacks
on Beslan, in the Russian republic of North Ossetia, in September 2004. The attack took the lives of some
350 persons, 11 of then members of the Russian security forces, and 172 children who were students at theschool in which the terrorists carried out their attack. The resolution is similar to resolution 1373 (2001) but
contains the outline of a definition of terrorism and an unambiguous condemnation of terrorism and of any
attempt to justify it. Paragraphs 9 and 10 of the resolution establish a working group “to consider and submit
recommendations to the Council on practical measures to be imposed on individuals, groups or entities
involved in or associated with terrorist activities, other than those designated by the Al-Qaida/Taliban
Sanctions Committee. . .” and to consider “the possibility of establishing an international fund to compensate
victims of terrorist acts and their families. . .” Thus, this resolution opened new areas in the Organization’s
counter-terrorism package.
On 16 December 2005, the working group submitted its report to the Security Council.5 Some may findthis document disappointing; although the working group made recommendations on the future work of the
Security Council in the area of counter-terrorism, there was no agreement to expand the list of individuals,
groups and entities involved in or associated with terrorist activities established under the Al-Qaida/Taliban
Sanctions Committee. With respect to the compensation of victims, the working group concluded that thebest approach, for the time being, was to encourage individual States to determine ways and means toextend assistance to the victims of terrorist acts and that the establishment of a compensation fund forvictims of terrorist acts at the international level was still premature.

IX. SECURITY COUNCIL RESOLUTION 1624 (2005)
Initially proposed by the United Kingdom and based on Chapter Six of the Charter of the United Nations,resolution 1624 (2005) was adopted unanimously on 14 September 2005 at the World Summit, soon after theattacks of 7 July and 21 July 2005 on London’s public transport system that killed 56 people and injured
some 700.
This resolution condemns “in the strongest terms all acts of terrorism irrespective of their motivation,
whenever and by whomsoever committed, as one of the most serious threats to peace and security”. It
further calls upon Member States to adopt measures to prohibit by law incitement to commit a terrorist act
or acts, to prevent such conduct and to deny safe haven to any persons with respect to whom there iscredible and relevant information giving serious reasons for considering that they have been guilty of suchconduct. Like resolution 1373 (2001), resolution 1624 (2005) calls on States to report to the CounterTerrorism Committee as part of their ongoing dialogue on counterterrorism and directs the Committee tocontinue to help Governments strengthen their capacities.
One of the important elements of this resolution is its establishment of links between incitement toterrorism, attempts to justify or glorify terrorist acts (apologie) and furthering of such acts.

X. THE SECRETARY-GENERAL OF THE UNITED NATIONS
The contributions of the Security Council and the General Assembly to United Nations policy on theissue of terrorism have been supported by those of Secretary-General Kofi Annan, who clearly wishes toplay an active role in the development of a United Nations stance against terrorism. In October 2001, shortly
after the attacks of 11 September and the Security Council’s adoption of resolution 1373 (2001), theSecretary-General decided to establish a Policy Working Group on the United Nations and Terrorism. The
Group made 31 recommendations in August 2002 under a “tripartite strategy” that sought to:
a)
b)
c)

Dissuade groups of discontents from adopting terrorism;
Deny groups or individuals the means to carry out terrorist acts; andPromote broad cooperation in the fight against terrorism.6

5 See document S/2005/789.
6 Identical letters dated 1 August 2002 from the Secretary-General addressed to the President of the General Assembly and

the President of the Security Council (A/57/273 and S/2002/875, respectively).

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These recommendations reflect an institutional sense of the Organization as subtly different from
Member States in that it offers an order of priorities which, without altering the fundamental direction
imparted by the Security Council and the General Assembly, focuses on different areas. The Policy Working
Group considered that the United Nations should concentrate its direct role in counter-terrorism on theareas in which the Organization has a comparative advantage.7
Lately, the Policy Working Group’s guidelines have been superseded by the recommendations of theHigh Level Panel on Threats, Challenges and Change, the ideas set forth in the Secretary-General’s Madrid
speech and the work of the Counter-Terrorism Implementation Task-Force. In its report “A More Secure
World: Our Shared Responsibility”, the High-level Panel on Threats, Challenges and Change recommended
that the United Nations should develop a comprehensive strategy, respectful of human rights, to respond to
the threat of terrorism.
The High Level Panel, on behalf of the United Nations, also offered a definition of terrorism that could be
adopted by Member States and called for a definition of terrorism which would make it clear that any action
constitutes terrorism if it is intended to cause death or serious bodily harm to civilians and non-combatants,
with the purpose of intimidating a population or compelling a Government or an international Organization
to do or abstain from any act.
In his Madrid address on 19 March 2005, the Secretary-General presented a comprehensive, concrete
strategy for the United Nations to the participants in the International Summit on Democracy, Terrorism andSecurity. He began by saying that:“Terrorism is a threat to all States, to all peoples, which can strike anytime, anywhere. It is a direct attackon the core values the United Nations stands for: the rule of law; the protection of civilians; mutual
respect between people of different faiths and cultures; and peaceful resolution of conflicts”.
The Secretary-General identified five key elements of a United Nations strategy in the fight against
terrorism:“First, to dissuade disaffected groups from choosing terrorism as a tactic to achieve their goals;
Second, to deny terrorists the means to carry out their attacks;
Third, to deter States from supporting terrorists;
Fourth, to develop State capacity to prevent terrorism; andFifth, to defend human rights in the struggle against terrorism”.
He announced that all departments and agencies of the United Nations would contribute to theimplementation of this strategy and established an Implementation Task Force, under his Office, which willmeet regularly to review the handling of terrorism and related issues throughout the United Nations system.
The Secretary-General went on to urge world leaders to unite behind the High Level Panel’s definition ofterrorism in an instrument which had clear moral force and stressed that:“It should be clearly stated, by all possible moral and political authorities, that terrorism is unacceptable
under any circumstances and in any culture”.

XI. COUNTER-TERRORISM AND HUMAN RIGHTS
As indicated by the Secretary-General, one of the main roles of the United Nations in the counterterrorism effort is to seek to ensure that States respect human rights while countering terrorism. This task
is carried out principally by the United Nations human rights bodies based in Geneva, Switzerland, under thecoordination of the Office of the High Commissioner for Human Rights (OHCHR). At its sixty-first sessionin April 2005, the Commission decided to appoint a special rapporteur on the promotion and protection ofhuman rights and fundamental freedoms while countering terrorism. The United Nations human rights
7 See the report of the Policy Working Group on the United Nations and Terrorism in annex to document A/57/273/S/2002/875.

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treaty bodies and special procedures based in Geneva continue to pay close attention to the issue of humanrights and counter-terrorism within their relevant mandates and resources.
In fact, however, all United Nations bodies are called upon to take the human rights dimension into
account. The Counter-Terrorism Committee recognizes that it does not, strictly speaking, have a humanrights monitoring role under the mandate conferred by resolution 1373 (2001). Nonetheless, the Committee
has acknowledged that human rights need to be taken into account in its work and that of CTED. This
follows from clear pronouncements by the Security Council; for example, in paragraph 6, of the annex to its
resolution 1456 (2003), the Council affirms that “States must ensure that any measures taken to combat
terrorism comply with all their obligations under international law and should adopt such measures inaccordance with international law, in particular international human rights, refugee, and humanitarian law.”
This position is also expressed in the 2005 World Summit Outcome Document, adopted in New York in
September 2005.
Generally speaking, the position of the United Nations is that effective action against terrorism andrespect for human rights are not incompatible objectives. The international human rights instruments, aswell as some of the regional instruments, contain provisions allowing for limited restrictions on some rights
in exceptional situations of “public emergency which threatens the life of the nation” (see, for example,
article 4 of the International Covenant on Civil and Political Rights). The threat of international terrorism
may, under certain circumstances, meet this threshold although all actions taken in such situations must be
strictly necessary and proportionate to the intended aim. At the same time, certain rights, such as the rightto life and to freedom from torture and cruel, inhuman or degrading treatment or punishment, are neversubject to suspension or restriction. The Executive Directorate has on its staff a human rights officer whose
primary responsibility is to advise the Executive Director on all aspects of international human rights,
humanitarian and refugee law that are relevant to the Committee’s mandate.
The basic principle guiding the United Nations in this area is that the struggle against terrorism is notserved by compromising human rights; on the contrary, respect for human rights is not only compatible witha successful counter-terrorism strategy; it is an essential element of it.8
It might be pointed out that although the General Assembly continues to debate the question of whether
terrorism itself violates human rights, there is broad agreement that terrorism has a grave impact on
individuals’ ability to enjoy their human rights. Indeed, the United Nations system is paying increasing
attention to the issue of the human rights of victims of terrorism. The issue was addressed specifically in the
Outcome Document of the 2005 World Summit and in Security Council resolution 1566 (2004), which called
for the creation of a working group to consider the possibility of establishing an international fund tocompensate victims of terrorist acts and their families. In Security Council resolution 1624 (2005), theCouncil expressed “its profound solidarity with the victims of terrorism and their families” and stressed “theimportance of assisting victims of terrorism and providing them and their families with support to cope with
their loss and grief”.9 In addition, the question of the rights of victims was raised by the Secretary-General
as a key concern in a comprehensive counter-terrorism strategy.
There is no doubt that assisting the victims of terrorism and their families is one of the challenges to be
faced by the United Nations in the future.

XII. A LOOK INTO THE FUTURE
The United Nations has become a key player in the global effort to eradicate terrorism. All theOrganization’s bodies and departments, and the Secretary-General himself, are dedicated to this task.
The dilemma faced by the United Nations, and indeed by mankind as a whole, is how to respond to thischallenge without abandoning or setting aside the characteristics of our common civilization, which gave
8 See the report of the Secretary-General entitled “Protecting human rights and fundamental freedoms, while countering

terrorism” (A/60/374).
9 S/RES/1624, ninth preambular paragraph; similar language is used in the Outcome Document of the 2005 World Summit(A/RES/60/1, para. 89).

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birth to the United Nations and has maintained it over time as the most perfect - or, if you will, the least
imperfect - of the organizations that mankind has known in its long and troubled history. The goal is to
overcome the dark forces of totalitarianism and it is to be hoped that with clarity of judgement, resolute will
and a sense of history, the United Nations will rise to the challenge by meeting the international
community’s expectations. The preliminary results offered here give us reason to believe that we will
succeed.

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THE CONVERGENCE OF TELECOM AND FINANCIAL SERVICES AND ITSEFFECTS ON AML/CFT WIRE REMITTANCE OPERATIONSJohn Forbes*

Fast-moving technology that is bringing about the convergence of telecom and financial services ischallenging the cash-based premise of current anti-money laundering (AML) efforts. The cellular phonevalue transfer system is one of these convergence areas. In the Philippines this transfer system is currently
very well controlled and deemed greatly beneficial to consumers as it greatly facilitates remittance flows
from migrant workers, reduces cost to the poor, and is convenient to use. Careful thought however should begiven to the effects of this fast growing phenomenon on AML operations and legal regimes.
In this presentation we will review a typical cash-based remittance money laundering operation; examine
how it was brought to successful fruition and how the use of small payments technology may provide
beneficial and possibly not so beneficial outcomes for the future.

I. MONEY LAUNDERING THE OLD-FASHIONED WAY
A. The Simple Drug-Trade Model
The simple drug-trade business model calls for drug-producing organizations in the home country to
focus on product development and packaging, to develop ways to nullify or limit regulatory and security
efforts, and to develop a culture of corruption, including systems of drug transportation. In the target
country they need to focus on market penetration in the target country through development of sales
networks, and revenue collection mechanisms which may include both direct and outsourced collections —via brokering, profit repatriation and investment.
B. Cash Is Heavy but Still King
Drugs and terror financing at the street level generally involve cash collections and, in the USA, moststreet drug sales generate cash in small denominations of under $100. Booming drug sales mean booming
volumes of cash. Each kilo of cocaine sold generates 3 kilos of cash in street collections of $10s and $20s.
Five million dollars in $100 bills is a stack 20 feet high.
The quantity and velocity of drug money is high risk to the criminal organizations. It invites competitors
and law enforcement to target the collection and consolidation points—known as “stash houses”. Bulk cash
movements are risky and even though heavily used, the organizations are always looking to find a safer way
to move the cash around.

C. How to Launder a Million the Old Fashioned Pot Smuggler’s Way
The most basic of these schemes, as outlined in the attached diagram (compliments of the Rolling Stone
magazine and author Robert Sabbag), is the use of bulk cash movements where the cash is flown out of thecollection country, moved via cargo or mail to an off-the-shelf company in a haven country. The off-the-shelfcompany is only a shell, with merely a bank account opened under a corporate name. Money is “borrowed”
from the corporation in the haven country and wired to a subsidiary company of the drug organization to
open a front business that is cash-based (for example a retail store) to cover the illegal funds being suppliedby the offshore account. The money is reported to tax authorities as revenues to keep the authorities happy
and the resulting net funds are successfully “cleaned”.

* AML Specialist, Asian Development Bank, Philippines.

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D. How to Launder A Million Dollars—the Government-Destabilizing Colombian Drug Lord Way—
Compliments of Rolling Stone Magazine1
Mr. A is a Colombian drug lord. A million dollars he has made from cocaine sales sits in New York in needof deodorizing. Mr. B is a legitimate Colombian businessman who wants to buy a million dollars worth ofAmerican computers but his government wants 21 cents on every American dollar he buys with pesos. As asolution they both contact a money broker who takes care of their needs for a nominal fee, following thesesteps: 1) the million dollars is smurfed (transferred in tiny amounts) or hauled overland to an account in a
Mexican bank; 2) the broker writes a check for $1 million at a New York correspondent bank and gives it to
XYZ computers; 3) XYZ computers ships Mr. B his machines from its Panamanian free-trade zone
warehouse; 4) Mr. B gives the broker a million dollars worth of pesos; and 5) the pesos become squeakyclean pocket change for Mr. A. This results in a $6 to $8 billion annual loss in revenues to the Colombian
government.
E. The New York City Situation
In the year 1995, over $900 million flowed through 23 licensed money remitters to Colombia based on
payment order data. Census figures show there are only 25,521 Colombian households with incomes ofapproximately $27,000 or $689,067,000 in total. Even given a significant allowance for undercounting, $900
million is a suspiciously large amount of remittances. A street survey by the “El Dorado2” Task Forceindicated that an average remittance was valued at $250-$300 per transaction. The El Dorado study focusedon wire transfers and not other forms of remittances like checks, money orders or cash in the mail. US
Treasury estimated, based on the flow patterns, that about $400 million was being laundered. Operation
Wire Drill had as its mission the behaviour modification of the wire remittance industry in New York City
(NYC).
F. Things Get Out of Hand
Things got out of hand and the El Dorado Money Laundering Task Force and Department of Justice
requested the US Treasury Department to issue a Geographical Targeting Order (GTO) to examine NYC
remittance flows to Colombia. The GTO is used to impose stricter reporting and record keeping
requirements on specified financial service providers in a certain geographical area for a limited time. At
first, 12 remittance license holders were involved but then it was expanded to 23 covering approximately
3,200 store fronts. The Order required a special remittance form to be filled out and ID presented fortransactions in excess of $750 going to Colombia.
The EL Dorado Task Force coordinated with DIAN, an investigative agency under the Colombia Treasury
Department, and with local law enforcement in New York as the Order took effect. Disruption in thelaundered funds chain in NYC caused the drug organizations to turn to other methods, primarily bulk cash
movements. Undercover operations, highway, and outbound port seizures saw dramatic increases in activity.
There was an increase of $63 million in cash seizures at ports of Miami, Boston, and NYC over the seizures
made during the previous year.

G. Aftermath
The aftermath of the Geographical Targeting Order and Operation Wire Drill was a drop in remittancecosts in NYC from 7% to 3.5%. Drug money was forced out of the marketplace causing wire remitters, whorelied on the drug trade, to drop their fees for legitimate customers. There was also an increase in bulk cash
seizures in USA and Colombia. Remittance cells were hit in NYC with more than 100 arrests and resulting
convictions and approximately $13 million seized. Anti-Money Laundering requirements for Money Services
Businesses were enhanced in USA and Colombia. Crackdowns on unlicensed remitters in Colombia andUSA took effect. Creative use of a trade-based targeting system used to identify trade anomalies proved
effective in tracking the displacement for payment orders and remittances. Money laundering patterns in
NYC then shifted to commodities, bank drafts, and other transfer methods.
H. The Indispensable Money Broker
Money brokers are very active and important actors in the drug trade. They serve as intermediaries
1 Sabbag, Robert. Rolling Stone Magazine, August 21, 1997 pages 82 and 86.
2 The El Dorado Money Laundering Task Force was a multi-agency law enforcement entity operating as an integral part of the

New York New Jersey High Intensity Drug Trafficking Area Task Force.

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between drug, cash, and domestic importers. They operate fairly openly where importers shop for US
Dollars. Why? A surplus of cash from the drug trade reduces the exchange rate on the black market, plus notaxes and tariffs are paid. Buyers could save as much as 21% on a foreign exchange transaction. Brokers’commissions are based on the location and type of financial instrument used to transfer value, and a wiretransfer is the lowest risk - highest value instrument.

I. Smurfs - the Money Launderer’s Army
Smurfs are workers in the money launderer’s army. Smurfs fan out and spread small denomination drug
deposits at remittance centres, open multiple bank accounts, and purchase money orders and traveller’s
checks at the direction of money brokers. Detection systems spurred on by government oversight andpenalties have slowed this option down in recent years.
J. Wire Remittance Payment Orders—the Crown Jewel
Criminals constantly look for ways to infiltrate or establish wire remittance outlets to convert cash into
the prized wire transfer orders. The payment order is the primary accounting document and serves two
purposes: as an invoice to account for cash received and as a receipt for the customer. Because Payment
Orders are required under law to have specific information (including: names of sender and recipient,
telephone numbers, transferred amount and the fees charged) generating false payment orders became a
cottage industry for money laundering in NYC. Phone books were used to create fictitious senders andrecipients, other customers’ information was used, and various combinations of individuals’ information
were used to cover the placement of drug cash.
K. Remittance Industry Vulnerabilities
1. Franchisees/License Holders
Franchisees and license holders need to be vigilant for instructions to transfer funds that are inconsistent
with the other details of the payment order. If franchisees or license holders choose to be “wilfully blind” tocriminal activity, they can be prosecuted. Some franchisees were in fact operated by criminals.
2. Store-Front Outlets
Store-front outlets that are used as remittance centres are usually working for multiple license holders
making it hard to detect money laundering patterns. There are usually many locations giving smurfs easy
access. Large cash deposits, night depository drops, and armoured cars make it easy to cover money
laundering activities. The storefronts are authorized to validate identity documents making it easy to assist
the smurfs. They create the payment order—easy to launder or structure transactions for smurfs. They areusually connected to paying agents in foreign countries making it easier to use codes or other methods tolaunder. They also are usually involved in marketing other products making it easy to cover lack of real
remittances.

L. The Tools Used By Law Enforcement
The tools used by law enforcement to track down these types of operations include the Bank Secrecy Act
which required the reporting of cash and provided the capability to bring into effect the GeographicalTargeting Order, the Money Laundering Act of 1986 and the “sting provisions” of the Act, which were thelegal provisions for a certified undercover operation with on-hand cash and operational flexibility.
Most importantly, the criminal and civil forfeiture laws were enacted and an Asset Forfeiture Fundcreated which permitted law enforcers to share and use a portion of the forfeited criminal funds for
operational purposes. This was one of the key elements that held the various law enforcement agencies
together under the El Dorado Money Laundering Task Force.
The purpose of the undercover operation was to place the government between the street cash and themoney broker/launder in an attempt to understand the process, identify the conspirators and build criminaland civil investigations against the criminals for money laundering or other crimes. Operation Wire Drill was
one such investigation that focused on modifying the behaviour of the wire remittance industry in NYC.

M. Lessons Learned From the NYC/GTO and Operation Wire Drill
Lack of effective AML supervision can cost money-service businesses money and destabilize the26132ND INTERNATIONAL SENIOR SEMINAR
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economy of the target country. Taking criminal funds out of the transfer system will help to drive down
remittance costs to the legitimate customer as we have seen above. The use of new technology to address
old problems still brings us back to the basic question—who is the sender and receiver? Consider the use of
an AML monitor for noncompliant firms. Some firms were cleaned up using this method. Use non-law
enforcement data to help identify the size of the problem. And team agency members from various
disciplines to pursue launderers. Focus on systemic money laundering issues, try to modify bad behaviour
and continue until the job is done.

N. The Wire Drill Group
The Wire Drill group continued on spinning off significant cases from the remitter activity. One was theuse of gold items such as screws and belt buckles, to laundering based on undercover operations, and thetrade-based money targeting systems. In one case, developed as a GTO investigation, seven years led to thearrest of four Colombian North Valley cartel kingpins smuggling one million pounds of cocaine into theUnited States, laundering $10 billion dollars using bribery, murder, and wiretaps on rival drug traffickers.
One group member, previously arrested for GTO-related money laundering investigations, also committed
more than 34 homicides at the same time he was laundering cartel money through three remittance store
fronts he owned in NYC.
Secretary Rubin’s Question
More visionary than the Wire Drill team, in July 1996 then US Secretary Rubin asked, “What do you andyour team think about the electronic wallet idea? Will it affect your operations?”
The Wire Drill team responded, “Well, Mr. Secretary, until the day comes that a drug dealer and thebuyer can find a safe and easy way to exchange dollars for drugs it won’t affect our anti-money laundering
operations. It will be still cash-centred”.

II. MONEY-LAUNDERING INNOVATIONS
A. The Electronic Wallet (1996-2002)
Secretary Rubin was referring to the electronic wallet of Europe, which did not catch on for a number ofreasons. The inconvenient technology made the devices cumbersome to use. After the Atlanta Olympics,
the electronic wallet designers went back to the drawing board to work out problems but some technicalglitches remained and more importantly, people’s preference was for cash. To make matters worse, banks
viewed the new technology effort as competitive pressure that would cost the bank clients and they were
not happy to lose business. A lot was said about the authentication protocols, a possible digital “know-yourcustomer”. In sum, these efforts were ahead of their time, the technology infrastructure to support them
was not ready, and user acceptance was low.
B. The Convergence of Financial Services and Telecommunications
Secretary Rubin’s question resonates in 2004
In November 2004, Secretary Rubin’s question resonated during a presentation at the AsianDevelopment Bank (ADB) in Manila, Philippines, where representatives of Globe Telecom, a cellular phone
operator, explained their G-Cash product, and its myriad applications, to an interested audience. What was
discussed was peer-to-peer cash transfer in an easy, safe, convenient manner, among other things. Would
this be the system that would replace cash in drug sales or other criminal activity, would it cause a paradigm
shift in law enforcement operations? Or would it provide a sea change for the good guys and deny the coverof legitimate remittance to the drug trade and terror financing, helping to close this avenue of abuse? Whichof these alternative futures will prevail is not yet clear, but the story in the Philippines is a good one andbodes well for the future. The question is whether or not continued progress in technology and market
forces will eventually overtake that well-designed system as well. Let’s see.
C. The Wireless Situation in the Philippines November 2004
In November 2004 there were three wireless providers in the Philippines. Sun Telecom was very smalland still emerging - it had not developed a value transfer programme at that time. The Philippine LongDistance Telephone (PLDT), the largest telecommunications company in the Philippines was the parent
company of Smart Telecoms who started Smart Padala, a bank-based remittance system in conjunction withlocal bank Banco de Oro.

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Globe Telecom rounds the field out as the second largest wireless provider, and the only one at that timewith peer-to-peer (P2P) value transfer. Globe is a good solid firm and was awarded a prize from aninternational technology panel in France for the G-cash technology. In November 2004, Globe’s G-Cash had
20,000 subscribers and by March 2005, it grew to 320,000 subscribers. By January 2006, the total registeredusers had grown to 1.2 million.

D. Philippine Cellular Phone Facts
The Philippine wireless market is somewhat unique. It has the largest population of Short Message
Service (SMS) users in the world and has a very mature market for SMS services, as the “texting” capital of
the world. Ninety five percent (95%) of the market is prepaid rather than post-paid. This is for a lot of
reasons—lack of credit, convenience for operator and user, extensive infrastructure to support prepaid
cards. Thirty five percent (35%) of the population has a cell phone; while 95% of the remaining has access toa cell phone through friends or family members. Even geographically inaccessible locations normally havecell phone coverage.
E. Why it Works
The Philippine wireless value transfer system works well for a number of reasons: there is aconvergence of technologies and services at low cost that is easily understood by the market, and uses themost accessible device in the Philippines - the cell phone.
Overseas remittances from the Middle East, other parts of Asia, USA, and to a lesser degree Europe,
account for an estimated value inflow of $7 to $8 billion a year. Most experts consider it most likely to be
25% more. The figures are vague and amorphous due to statistical collection methods and the variety oftransfer methods. One thing certain is that, as in the NYC scenario, remittances are normally in small
amounts, usually $200-$300. Remittance volume spikes on holidays, as expected.
From a remittance standpoint, the Philippine system also responds to first and last mile issues. The “firstmile” is that time a person has to take to get the remittance or value into the system in one location and the“last mile” represents the efforts needed to deliver the value/money to the recipient. Near-universal cellularsite coverage in the Philippines eliminates the last mile.
Other features like the SMS direct transfers and the salutations that can accompany the value transfer,line notations of an event like “Happy Birthday”, “Happy Anniversary” or “Study harder or I won’t send any
more money”, make the system more appealing. In the end, the system reduces or eliminates the first andlast mile in most cases. The value transfers of very small permitted amounts puts the system in the realm of
most people and does not give rise to money laundering concerns. The system is also inexpensive for small
businesses since they need no special equipment other than a cell phone.

F. Who Benefits
It benefits many sectors, mainly those with no bank accounts, since there is no need to maintain an
account balance even with Smart. Also, the poor on limited incomes and those remotely located now canconduct limited financial transactions. The overseas foreign workers remittances, from where a major
percentage of the country’s incoming cash flow is generated, are a major support for the Philippine economy.
The Government also benefits - from more accurate remittance flows, better view of transfers and overseas
connectivity; petty corruption in government is eliminated when citizens can pay for its services directly.
Businesses are happy about fast settlement of accounts. As mentioned earlier, there are no requirements for
major systems purchases at points of sale (POS). Money launderers do not have a significant entree atcurrent Philippine standards – CFT? That could and will change within the next year as the technology
evolves.

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G. How Does It Work?
Figure 1: G-Cash Phone-to-Phone Remittance

Sender enters amount and PIN,
then sends to mobile number ofrecipient.

Sender and recipient receive an SMS
advisory message, with a corresponding
trace number.

Source: Gartner Research (February 2005)

Figure 2: G-Cash Purchase at a Registered Outlet

Merchant keys in sellcommand, amount, PIN andmobile number of recipient.

Subscriber receives SMS,
requesting confirmation,and replies with yes, PIN
and reference number toconfirm.

Merchant and subscriber
receive SMS
confirmation of thededuction; merchantreleases product.

Source: Gartner Research (February 2005)

H. How is the G-Cash Regulated?
G-Cash is regulated by Bangko Sentral ng Pilipinas (BSP) and the Anti-Money Laundering Council

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RESOURCE MATERIAL SERIES No.71(AMLC) of the Philippines as a money services business. The AMLC set strict limits agreed to by Globe - a
maximum per transaction value of PhP10, 000 ($182), a maximum per day of PhP40, 000 ($750) and amaximum per month of PhP100, 000 ($1,825). In addition, G-Cash remains a closed system - you must be a
Globe subscriber and register with Globe to receive value - thereby fulfilling the AML “Know Your
Customer” requirements. Customers can load cash into G-Cash in the form of prepaid cards, Globe e-Loadwebsite, bank accounts or Globe sales stores. They can withdraw cash by filling out a withdrawal form at the
point of sale (POS), at G-Cash ATM’s (wireless, card-less), Globe outlets and participating banks. All
withdrawals require a form to be completed. The system worked out by Globe and the BSP/AMLC is a goodmodel: it has controls on cash in and cash out, it is a closed system and the amounts transferred arereasonable and small.

I. Smart Telecom
G-Cash is not alone in the market. Its big brother is Smart Communications, a subsidiary of thePhilippine Long Distance Telephone Company (PLDT), a long established firm, and the dominant fixed-line
telephone operator in the Philippines. Smart is the leading wireless provider in the Philippines with 12.5
million subscribers, of which 98% are prepaid users. Together Globe and Smart control 98% of all the GSM
phones which account for 92% of the market. Like Globe, Smart is an innovative and dynamic company. It
offered the world’s first electronic cash card linked to mobile phones back in 2000. In this effort it has
teamed with Banco de Oro, a large commercial bank. In August 2004, it offered the first text-based
remittance system - Smart Padala - which focused on overseas Philippine workers and tied to a large numberof retail and service locations.
J. How is Smart Money/Padala Regulated?
Smart differs widely from Globe from a Philippine regulatory perspective. The BSP regulates Smart as abank (as opposed to regulating Globe as a money-service business) due to the existing partnership with
Banco de Oro. It is viewed as a bank-centric model because all value transfer subscribers need to haveaccounts/access cards and have customer due diligence preformed by Banco de Oro or other banking
partners. Because of its banking status the limits are higher; 10 transactions per day with a PhP100, 000 a
day limit ($1785).
K. Philippine Regulatory Regime in Sum
There are two models in the Philippines: Globe, as a telecommunications company is viewed as Money
Service Business (MSB)3 - telecom centric. Smart, since it is tied to Banco de Oro, is viewed as bankcentric. Each firm is compliant with BSP AML requirements relative to ID for subscriber and beneficiary as
well as valid ID required for both parties to obtain services of cash in cash out. Globe and Smart both use
pattern recognition systems, which is a necessary and complementary part of both anti-fraud and AML tomonitor account/subscriber activity. Both are required to report any suspicious activity to the AMLC. Bothare also subject to AML compliance examinations by regulators. At this time everything looks good from a
regulatory perspective but what does it all mean going forward?
III. CONCLUSION
A. What Does it Mean for Law Enforcement?
Is this a paradigm shift from cash to digital money? The easy peer-to-peer funds transfer makes
Secretary Rubin’s far-sighted question more relevant today than in 1996 when it was first posed. Wirelesstransfers through international roaming opens up new possibilities for abuse by money launderers if thesystems are opened up and value transfer limits are increased. These developments will create a need forincreased international cooperation and data sharing of data analysis on suspect accounts. Thought will also
have to be given to KYC requirements in this digital age; perhaps a digital KYC needs to be explored on aninternational level. SIMs can be easily compromised, retrieved from stolen phones, and with the advent of
third generation (3G) phone technology, can carry more than one phone number, possibly acting as a “digitalsmurf”.
Anti-money laundering law enforcement operations will need to be more visionary. They need to plan tomove beyond traditional pick-up and surveillance operations to other more pro-active strategies - these will

3 MSBs are those firms that fall outside of the traditional banking system but provide regulated financial services.

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require a high level of technical skills. To support these initiatives, mobile commerce (M-commerce)/MAML legislation relative to search, arrest and seizure may need to be enacted. There will need to be moreemphasis on “cyber-AML” capacity-building and tools. If open system between providers is allowed, then
AML controls will need to be rethought.

B. Other Things to Think About
As I mentioned, SIMs can be easily compromised, duplicated, retrieved from stolen phones, and - withthe advent of 3G, cellular phones can carry more than one phone number, possibly acting as “digital smurfs”
or “bots”. Street operations groups will need to think about the phones as much as (or instead of) the cash.
The key question is: Where does the value lie and who controls the transactions? The answer to this is noteasily obtained through mere observation.
Current forfeiture, also laws, may not fit the coming environment, which will affect asset-sharing
arrangements. Undercover operations of the future need to consider and plan for these eventualities.
Are you ready for the end of cash? In a cashless crime world, who investigates? How do they do it? How
do you prepare?

C. Can This Wireless Train Be Slowed Down? – Not Likely
The likelihood that the G-Cash wireless value transfer model will remain an exclusively Philippine modelor meet with only limited success - like the electronic wallet of the late 1990’s - is not likely. It is a wellthought-out award winning programme that helps the overseas workers get money home efficiently. It isalso being used for direct payment for government and business services, charities, microfinance, andothers. A cell phone now means access to a wide variety of financial services with more to come with theadvent of the 3G (third generation cell phone). G-Cash, started in 11/2004 started with only 20,000
subscribers, has taken the Philippines by storm and by 01/2006 had in excess of 1.2 million subscribers.
There is also significant international interest in M-Commerce within Asia. Globe partners include
Bridge Mobile Alliance - Airtel (India), CSL (Hong Kong), Globe Telecom (Philippines), Maxis (Malaysia),
Optus (Australia), SingTel (Singapore) Taiwan Mobile (Taiwan) and Telkomsel (Indonesia). Together, theoperators have almost 70 million mobile subscribers. We can expect more major regional efforts soon.
Smart is not standing still either; they are currently rolling out 3G phones. According to Smart, 3G isshorthand for the next generation of mobile communications networks running on the WCDMA (WirelessCode Division Multiple Access) platform. This technology allows for faster data transmission speeds from
114 kbps up to 2 Mbps, making possible high-speed data communications and mobile multimedia services
such as video conferencing, audio streaming and mobile internet. All those changes will support mobilebanking of which Smart is the Philippine leader.
Some other efforts include Japan’s NTT-DoCoMo recently launched i-mode FeliCa (TM) Mobile wallet
which is also a closed system but with Radio Frequency Identification Device (RFID) swipe capability.
Korea’s SK Telecom MONETA has m-financial services via internet and the MONETA card. Sun Java
programmes and Microsoft’s new m-commerce applications for cell phones will speed up m-commerce
applications. If the system operates on a peer-to-peer transfer basis, then the drug money laundering model
described above could be easily adapted using the wireless transfer systems.

D. Where Does That Leave Us?
Back in Manila. What do these changes mean to law enforcement and AML/CFT specifically? The AMLC
asked ADB to do a study on possible international cell phone value transfer standards for submission to the
Asian Pacific Group on Money Laundering (APG). A first draft of the report was submitted and is undergoing
finalization. The report will not be a definitive work but a seminal work in M-Commerce/AML. The purpose
is to open the dialogue to prepare us for the fast moving wireless digital world effects on AML. Let’s hope itdoes its job
I would like to thank the Philippine Government, in particular the BSP and the AMLC for permitting
ADB to examine their process. I wish you all luck and good fortune pursuing the money launderers in yourcountries.

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ISLAM, GLOBALIZATION AND COUNTER TERRORISM
Juhaya S. Praja*

I. ISLAM AND GLOBALIZATION
A. Islamic Universality
The Quran states that Islam is the universal religion and is a mercy to all creatures.1 Islam is a religion ofpeace. As a universal faith, that has been subject to diverse interpretations, Islam offers a living
demonstration of qualities to which all human beings can relate: compassion, mercy, tolerance, and love.
Bearing the label “Muslim” is no guarantee of living by its teaching since Muslims are not a single,
homogeneous entity. Grave risks arise from thinking that they are.
Islam is more than a system of theology, it’s a complete civilization.2 The classical history of Islam proved
the Islamic universality: Islam rejects discrimination, racism, and teaches men and women to disperse
within the land and seek the bounty of God.3 More clearly the tradition of the Prophet Muhammad instructs
his followers to seek knowledge, even to China.4 Indeed, this hadith calls for globalization at doctrinal andpractical levels.
Islam became the global power when the peoples of Arabia, Africa, Europe and Asia admired and followed
the Islamic civilization and culture. The presence of Islam has contributed to the welfare and the prosperityof the peoples. The civilized peoples closely related to the basics of Islamic doctrine, ethics, values, morals,
law, and their customs. Islam and its history have taught globalization at the most general level, that refers
to a process of change which affects all regions of the world in a variety of sectors including the economy,
science and technology and to some extent – politics, the media, culture and the environment.
The characterization of globalization may be thought of initially as the widening, deepening and speeding
up of worldwide interconnectedness in all aspects of social life, from the cultural to the criminal, the financial
to the spiritual.5 The 12th Century was “The Golden Age of Islamic Globalization”.
The majority of Muslims are not located in the motherland of Islam, but Indonesia, India and Pakistan.
The faces of Islam in these geopolitical locations are more moderate than what has developed in the Middle
East. However, the global interaction among the people of Muslim countries does not only introduce
moderate Islam, but also militant ideas and practices as the resistance to the common enemy, namely theWest. With this in mind, this paper attempts to explain the nature of Islam, its interaction with the West andits responses to the Western global economy and military as part of the triggering factors of how global
resistance towards the West is expressed in the most inhumane form, such as terrorism. This is not to say* Chairperson, Doctoral Programme of the Islamic Law, Islamic State University of Bandung. Rector, Latifah MubarokiyahInstitute for Islamic Studies, Tasikmalaya, West Java, Indonesia.
This paper is a summary of the writer’s current book, Islam, Globalization and Counter Terrorism. This book was written
based on the author’s sixth months of research on the Socio-Political Movement of American Muslims after September 11,
2001 supported by AMINEF (American Indonesian Exchange Foundation, Jakarta and the Fulbright Foundation, Washington,
D.C., and sponsored by the Center for Medieval and Renaissance Studies (CEMERS), State University of New York at
Binghamton, NY. 2002-2003.
1 Q.S.21: 107, “And we sent thee not [O, Muhammad], except as a mercy for all creatures”.
2 H.A.R Gibb, Muhammadanism, p. 1.
3 Q.S.62: 10, “And when the prayer has been concluded, disperse through the land and seek of the bounty of Allah, andCelebrate the Praises of Allah often that you may succeed”.
4 When the Prophet Muhammad spoke, China was the furthest country from Mekkah.
5 Held and associates. Global Transformations. 1999, 2.

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that terrorism is acceptable in Islam and to Muslims. Terrorism is not Islamic at all and will never become
part of the Islamic teaching.

B. Islam: Unity in Diversity
Although Muslims maintain that there is one divinely revealed and mandated Islam, there are many
Muslim interpretations of Islam. There are two major branches of opinion about political and religious
leadership after the death of Muhammad: Sunnis (85 percent of the World’s Muslims) and Shi’is (15%).
There are diverse school of theology, law and mystical tradition that includes many Sufi orders orbrotherhoods. Islam represents a basic unity of beliefs within rich cultural diversity. Islam practices itself in
different ways within a vast array of cultures that extend from North Africa to Southeast Asia, as well as
Europe and America.6
As a world religion, Islam is practiced in diverse cultures in Africa, the Middle East, Asia, Europe, andAmerica. Differences in religious and cultural practices are therefore wide-raging. Like all faiths, Islam hasdeveloped divisions, sects, and school of thought over various issues. Islamic law provides one of theclearest and most important examples of diversities of opinion. While many law schools existed, only a few
endured and were recognized as authoritative.7
While all Muslims share certain beliefs and practices, such as a belief in God, the Quran, Muhammad, andthe Five Pillars of Islam, divisions have arisen over questions of political and religious leadership, theology,interpretations of Islamic law, and responses to modernity and the West.
Perhaps nowhere are differences in Islam more visible than in responses to modernity. Since thenineteenth century, Muslims have struggled with the relationship of their religious tradition developed in
pre-modern time to the new demands of the modern world (viz. religious, political, economic, and social
demands). The issues are not only about Islam’s accommodation to change but also about the relationship ofIslam to the West, since much of modern change is associated with Western ideas, institutions, and values.
Muslim responses to the issues of reform and modernization have spanned the spectrum from secularists8
and Islamic modernists9 to religious conservatives10 or traditionalists, “fundamentalists”11, and Islamic
reformists.12 The other groups are more “Islamically” oriented but have different opinions as to the role
Islam should play in public life.

II. ISLAM AND THE WEST
The highest tide of Islamic culture, 800-1100A.D., was coincident with the lowest ebb of European
culture. While the Muslims enjoyed general standards of living equal to, if not surpassing those of theproceeding Graeco-Roman civilization, the Europeans were living in the semi-barbarous squalor andrestricted regime of feudalism – a pattern unalleviated by comforts and luxuries. One of the strangest
dramas of history is that at the very moment when Europe, prodded by contacts with the Islamic culture in
Sicily and Spain and by the Crusades, began to recover from its prolonged descent towards darkness, Islam
entered a decline that was to carry it down into the very fog of obscurantism from which it had helped torescue Europe.13 “The spirit” of Islamic civilization developed more rapidly in the West synergized by the
6 John L. Esposito, What Everyone Needs to Know about Islam, Oxford University Press, 2002, p. 39-58.
7 Today they are four major Sunni schools of law (Maliki, Syafi’i, Hanafi, and Hanbali) and two Shiite major schools (Ja’fari and
Zaidis), besides Itsna’ Ashriya (The Twelvers) and Sab’iyyah (The Seveners).
8 Modern secularists are Western oriented in nature and advocate a separation between religion and the rest of society,including politics. They believe that religion is and should be strictly a private matter.
9 Islamic modernists believe that Islam and modernity, particularly science and technology, are compatible, so that Islam
should inform public life without necessarily dominating it.
10 Conservatives or traditionalists, emphasize the authority of the past and tend to call for reimplementation of Islamic laws
and norms as they existed in the past.
11 Fundamentalists emphasize going back to the earliest period and teaching of Islam, believing that the Islamic tradition needs
to be purified of popular, cultural, and Western beliefs and practices that have “corrupted” Islam.
12 There are significant numbers of Islamic reformers, intellectuals, and religious leaders who also emphasize the critical needfor an Islamic reformation, a wide ranging programme of reinterpretation (ijtihad) and reform urging fresh approaches to
Quranic interpretation as well as to issues of gender, human rights, democratization and legal reform.
13 Stanwood Cobb, Islamic Contributions to Civilization, Avalon Press, Washington, DC., 1963, p. 22.

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philosophy of capitalism in economy and secularism in the politics. Both capitalism and secularism supported
by sciences, technology and the military had created the Superpower State, especially after the Cold War.14
The Islamic civilization has a significant contribution to drive the Enlightenment in the West and the modern
world. The immenseness of the Arab-Islam contribution can best realized by recapitulating the mostsignificant of her activities, considering at the same time their impact to a Europe struggling upward throughthe barbarism of the Dark Ages. The Arabic-Islamic science and technology,15 reaching Europe via Sicily andSpain, awoke her from the Dark Ages in which she was slumbering. The detailed elaboration of the actualroutes by which this transference took place have only recently been outlined by historians. A hundred years
ago a statement of the full influence of the Arabic culture on Europe would have been incredible. But
modern research has firmly established its incontestability.
The principles of Western political systems typically are democracy and the rule of law. Together
democracy and the rule of law save people from arbitrary whims of dictators and tyrants, and make all people
politically equal. Democracy was pioneered by ancient Athens. The rule of law is to a great degree a productof Islam. Democracy in the words of Abraham Lincoln is similar to the syura’ in the Islamic concept derived
from the Quran by Fuqaha.16
The West learned the scientific method from Islam and has used that method to develop, amongst manyother things, technologies for communication that have shrunk the world. The global civilization may be
regarded as the joint legacy of Islam and the West.17 The three most influential thinkers of the Western
civilization represented the three Abrahamic faiths: Ibn Rusyd (Averroes) the Muslim, Maimonides the Jew,
and Thomas Aquinas the Christian.
Rationalism initiated the new modern world and ignited the secularism that only takes the Christian’s
ethic; meanwhile, ethics are a changeable point of view on what is good or bad. Conceptually, Islam and theWest were born within the tradition of monotheistic religion, - Jews and Christianity - referred to the
Abrahamic faith. In the spheres of politics and economics Islam and the West are often in conflict, where asin knowledge and ideas they are often in harmony. When there is a rivalry between Islam and the West
(Christianity) or between capitalism and Islam, one of the solutions is military power and war. Therefore,
there is a significant relationship between the economy and politics on one side and belief and religion on theother.
The only superpower State nowadays is the United States (U.S.) that has become the “World Cop” whoalways monitors and unashamedly forces the other State or States to be under its control. This condition is
globalization or hegemony. The Western world as a whole previously clashed with other civilizations long
before the Cold War of Ideology. Firstly, there was genocide against the native ancient civilization of theAmericans. Secondly, there was later enslavement of millions of Africans for use in the so-called New World.
Thirdly, there was the phase of European imperialism and colonialization of most of the world. Is the fourthphase the United States as an imperial superpower? America has now become a new form of empire,
controlling millions of people through a variety of inducements and intimidations.
In addition, the global development that began after the Cold War left a vacuum from the influence of the
two Super Powers or West and East Block represented by the USSR and the U.S. This area is well-known as
the Middle East. The victory of the West pioneered by the USA, soon followed by founding the Israel Statein the middle of the Middle East countries. The State, in the eyes of the world, inflicts injustice on thePalestinians. Muslims around the world consider the invasion of the Palestinian land as the core problem
that creates the rebellion of the oppressed people (Palestinians) by the powerful and unjust state institution
and government (Israel). Such rebellion is called “terrorism”.
14 Ibid.
15 According to Stanwood Cobb, the most significant of the Islamic activities in science and technology were as follows:

medical science, chemistry, astronomy, geography and navigation, the decimal system, algebra, paper, gunpowder, textiles,
agricultural products, the rise of the university and machinery. ibid., p. 47-60.
16 Fuqaha is a plural of the singular Arabic word faqih which means legalist. (Lincoln: Democracy ensures that government is“of the people, by the people, and for the people”.)
17 Van de Weyer, Islam and the West, p. 48-9.

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III. WAR ON TERRORISM - IS WAR ON TERRORISM WAR ON ISLAM?
The lack of information and deeper misunderstanding of Islam may lead some to think that the war on
terrorism is a war on Islam. That’s why most Americans and Europeans think of Muslims as strange,
foreign, and frightening, inevitably linked to headlines of terrorist events. This is not true since the war on
terrorism is not a war on Islam.
Islam and Islamic law have consistently condemned terrorism (the killing of non-combatants). Like themembers of all religious faiths, Muslims have had to deal with religious extremism and terrorism from theirearliest days. The responses of the mainstream majority to groups like the Kharijites and the Assassins andmore contemporary groups like Islamic Jihad in Egypt or al-Qaeda have been to condemn, combat, andmarginalize them.
From the origins, the Islamic community faced rebellion and civil wars, violence and terrorism,
epitomized by groups like the Kharijites and Assassins. The Kharijites were a pious but puritanical andmilitant extremist group that broke with the Calip Ali and later assassinated him. The Assassins lived apartin secret communities from which they were guided by a series of Grand Masters, who ruled from themountain fortress of Alamut in northern Persia. The Assassins’ jihad against the Seljuk Dynasty terrorized
the princes, generals, and ulama (scholars), whom they murdered in the name of the Hidden Imam. They
struck such terror in the hearts of their Muslim and Crusader enemies that their exploits in Persia and Syria
earned them a name and memory in history long after they were overrun and the Mongols executed theirlast Grand Master in 1256.
The response of Sunni Islam and Islamic law was to marginalize extremist and develop a political theory
that emphasized stability over chaos and anarchy. This, of course, did not dissuade all from the extremist
path. In more recent decades, alongside mainstream Islamic political opposition, terrorist groups have risen
up to challenge the regime and terrorize their populations and attack foreign interests. Often they portraythemselves as the “true believers” struggling against repressive regimes and in the midst of a “pagan”
society of unbelief. They attempt to impose their ideological brand of Islam and “hijack” Islamic doctrines
such as jihad, claiming to be defending true Islam, to legitimate their illegitimate use of violence and acts ofterrorism.
In Egypt, groups like Egypt’s Islamic Jihad and other extremist groups assassinated President Anwar
Sadat and government officials, slaughtered tourists in Luxor, burned churches, and killed Christians. In
Algeria, the Armed Islamic Group has engaged in a campaign of terror against the Algerian government.
Osama bin Laden and al-Qaeda undertook a global war of terror against Muslim governments and America,
distorting Islam and countering Islamic law in issuing their own fatwas (legal opinions) in an attempt tolegitimate their war and call for an attack on civilians (non-combatants).
The Suicide Bombing in Jakarta, Bali and Poso by Indonesians terrorists under their commander of
Malaysian citizenship “the late Dr. Azahari” and his close companion and successor Nordin Top. They havedistorted the true Islam and seemed to endorse the mistaken view so common in the West that Islam isessentially a fanatical and violent faith.
Terrorism has multiple faces and may be hiding under the name of a religion, philosophy, politics, or any
other name. Terrorism is a way of life. It may be a part of the history of human civilization and culture.
Defining terrorism is most important in order not to be changeable between “terrorism” and “the warrior of
freedom”.18 The scholars have their own definition of terrorism based on their point of view and field, orthey define it as the ruler’s outlook.19 Anyway, how divers those definitions, but the might is the rulers’
18 Michael Kinsley, Washington Post, 5 October 2001, Definition of terrorism in many cases, such as 0sama bin Laden is often

absurd. Eg., USA supported the gurella movement against the Nicaraguan government, but at the same time does the opposite
to the same movement of Salvador. Is terrorism a crime to achieve the political goal? Is it an exception if terrorism is carriedout by the government?
19 The operational definition of terrorism according to the rulers: “terrorism is a premediated threat or use of violence by subnational groups or cladenstine individuals intended to intimidate and coerce governments, to promote political, religious or
ideological outcomes, and to inculcate fear among the public at large”. Terrorism defined by the FBI, “The unlawful use offorce or violence against person or property to intimidate or to coerce a government, the civilian population, or any segment
thereof, in furtherance of political or social goals”.

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definition who enforce their definition to be accepted by the people either using military, political, economic,
technology or cultural power. Terrorism may be derived from religious doctrine or motivated by any otherbeliefs. Terrorism may be come to the true when the terrorists regard themselves as the victim of arepressive and hypocritical regime that never takes care of them, for instance: the IRA, EPTA, and somegroups of terrorists in Latin America, and the intifada movement of the Palestinians.
The beginning of the terrorist’s movement seems to be Hassan Bin Sabbah (1057 AD), the leader of theimpressive movement in the Middle East, Hashashiyyin or Assassins as mentioned above.20 Meanwhile,
Maximilien Robespierre of France was the father of modern terrorism, as claimed by the scholars. Vladimir
Lenin (b.1870-1924) is the modern terrorist. His ideas and theories of terrorism are followed by his
successor as Vladimir Lenin (Vladimir Ulyanov) said. Joseph Stalin (d. 1953) is the master executive of
terror.21 Furthermore, the greatest terrorist of the East was Mao Tse-Tung. Mao led a world class of terror.
Mao believed that the government needed to be a dictatorship to remain in control; using terrorism as ameans to oppress the people to obey all the government’s will. Mao modernized terrorism and made it more
effective, more powerful and more horrific than before.22 America has been described as “conceived andborn in violence”. Noam Chomsky has stated that the USA is a rich and powerful country that practices
international terrorism on smaller States. Noam Chomsky stated that Osama bin Laden has caused the USA
to bomb poor countries, such as Afghanistan. Osama bin Laden is the creation of the U.S.
For Kuwait, the U.S. is the savoir and the defender against Saddam’ aggression. For Egypt, the U.S. is thedonor of millions of dollars in order to take Egypt out of alignment with countries against Israel. For Saddam
Hussein, the U.S. is the big enemy who removed him from his crown. For many countries of the world, theU.S. is a never ending Superpower State. There is no state in history that has made more progress ineconomics, the military, science, technology and politics, than the U.S. In both good and bad, the U.S. is an
incomparable State.
Globalization or hegemony is a new phase of the U.S. as an iperium having global power, including
economic power and power over, information such as the internet. After the Cold War, the U.S. was thewinner. Recently this State successfully brought freedom and democracy for peace. The U.S. seems to pull
the rest of the world to follow its system. Unfortunately, the U.S. is trapped in imperializing other States. It
represented the Jew-Christian ethic that created the capitalist system in economics and secularism system
in politics.
Anti-Americanism (along with anti-Europeanism) is a broad based phenomenon that cuts across Arab andMuslim societies. It is driven not only by blind hatred of religious zealotry of extremists but also by
frustration and anger with U.S. foreign policy among the mainstream in the Muslim world. The West’s
espousal of self-determination, democratization and human rights is often seen as a hypocritical “double
standard” when compared to its policies, what is actually does – for instance, imposing sanctions upon
Pakistan for its development of nuclear weapons while failing to press Israel and India on their nuclear
development. The moral is so evident in America’s helping Kosovo is seen by many Muslims totally absent
in the U.S. policy of permissive neglect in the Chechnyan and Kashmiri conflicts. The impact of sanctions on
more than a half million Iraqi children does not seem to have been considered when they were imposed.
Another inflammatory issue involves the significant presence of U.S. military and arms in the Gulf, which
critics perceive as a neo-colonialist military influence. The American presence is equated with support for
unpopular authoritarian regimes and pressure of Arab governments to comply with U.S. foreign policy
objectives, especially with respect to Israel and Palestine. This long litany of grievances stretching over

20 Hashashiyyin is derived from the word hashis means something that makes you drunk. The followers of Hashashiyyinalways consumed hashish to get intoxicated so they would be brave to kill. The word Hashashiyyin transferred into English
assassin or assassination.
21 In 1924 Stalin received the legacy of Lenin, and shaped and intensified the terror. He governed Russia by terror and his iron
hand until he died in 1953.
22 The most effective terror introduced by Mao was his most important inovation: breaking the family institution and religion.
He broke the long life tradition of Asia, eg. loyalty to the family; turning people from the trust of the family to the trust of theState.

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many years feed the anger of many mainstream Arabs and Muslims, as well as extremists.23
Globalization of communications has created a situation in which Arabs (Muslims and Christians) and
Muslims around the world often see more than before. Unlike the past, today international Arab and Muslim
media are no longer solely dependent on Western reporters and channels. While America’s overseas media
presence (reporters and overseas posts) and coverage have waned over the past decade, television stations
like al-Jazeera and others provide daily coverage of the violence in many Muslim countries. They show, forexample, the violence and acts of terror committed by both sides as well as the disproportionate firepower
used against Palestinians by Israelis armed with American-supplied weapons, F-16s, and Apache helicopters.
America’s record of overwhelming support of Israel-witnessed in its levels of aid to Israel, the U.S. voting
record in the United Nations, and official statements by the administration and State Department - hasproved to be a powerful lightning rod for Muslim anger over injustice.24

IV. TERRORISM AND MISCONCEPTION OF JIHAD IN ISLAM
Osama Bin Laden is the only terrorist leader to have formally declared a jihad- holy war – against theUnited States. This declaration of holy war is not an empty gesture. Laden’s objective was the establishmentof a “true” Islamic State under the Sharia. The realization of his objective would require confrontation with
the United States because Saudi Arabia had been turned into “an American colony”. Asked if he was
declaring war on the West, he replied, “It is not a declaration of war – its a real description of the situation.
This doesn’t mean declaring war against the West and Western people – but against the American regime
which is against every Muslim”. He hates the United States passionately and considers it his principle
enemy. He accuses the U.S. – the locus of Westernization and modernity – of being the source of all crises
and trouble afflicting the Muslim world. Bin Laden is convinced that U.S. presence in the Muslim world,
particularly in his home country of Saudi Arabia, prevents the establishment of real Islamic governments andthe realization of the Islamic revivalism to which he and other Islamists aspire. Since a frontal assault is outof the question, the U.S. must be terrorized into withdrawing from the Muslim world.
While the atrocities and acts of terrorism committed by violent extremists have connected Islam withterrorism, the Islamic tradition places limits on the use of violence and rejects terrorism, hijacking, andhostage taking. As with other faiths, mainstream and normative doctrines and laws are ignored, distorted, orhijacked by a radical fringe. Islamic law, drawing on the Quran, sets out clear guidelines for the conduct of
war and rejects acts of terrorism.
Islam, like all world religions, neither supports nor requires illegitimate violence. The Quran does not
advocate or condone terrorism. However, Quranic verses also underscore that peace and warfare are thenorm. Permission to fight the enemy is balanced by a strong mandate for making peace. (Q.S.8: 61, 4: 90).
The root of terrorism within the Muslim community refers to the misconception and misinterpretation of
the jihad as the Quran’s command. Jihad (to strive or struggle) is sometimes referred to as the Sixth Pillar ofIslam. The Quranic teaching of jihad have been of essential significance of Muslim self-understanding, piety,mobilization, expansion, and defence. Jihad as struggle pertains to the difficulty and complexity of living agood life; struggling against the evil in oneself-to be virtuous and moral, making a serious effort to do goodworks and to help to reform society. Depending on the circumstances which one lives, it also can meanfighting injustice and oppression, spreading and defending Islam, and creating a just society throughpreaching, teaching, and if necessary, armed struggle or holy war.
The two broad meanings of jihad, non-violent and violent, are contrasted in a well-known Prophetic
tradition. It’s said that when Muhammad returned from battle he told his followers: “We return from thelesser jihad (warfare) to the greater jihad”. The greater jihad is the more difficult and more important
struggle against one’s ego, selfness, greed, and evil.
Jihad is a concept with multiple meanings, used and abused throughout Islamic history. Although jihad
has always been an important part of the Islamic tradition, in recent years some have maintained that it is auniversal religious obligation for all true Muslims to join the jihad to promote Islamic reform or revolution.
23 John L Esposito, Islam., p., 135.
24 Ibid.

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Some look around them and see a world dominated by corrupt authoritarian regimes and a wealthy elite
minority concerned solely with its own economic prosperity and awash in Western culture and values.
Western governments are perceived as propping up oppressive regimes and exploiting the region’s humanand natural resources, robbing Muslims of their culture and their option to be governed according to theirown choice and to live in a more just society.
Better understanding and a comprehensive study of Islamic teaching in respect of relations between
Islam and the West, both by Muslims and the others (Westerners) will eliminate the misconception of a jihadin one side; and misconception of Islam and the Muslims in the other one. Understanding Islam and Muslim
peoples will be one of eliminating terrorism. But the most importance is how Muslims all over the world
have a good understanding of how the Prophet explained what really jihad is.
Jihad is not “holy war”, but “struggle” and “effort”. This is a very important religious principle. The term
jihad reminds all Muslims that Islam as a religion (al-din) is never something achieved or finished. The
revelation is given, but those who follow it have to make an effort, day by day, year after year, to put it into
practice in a flawed and tragic world.

V. ISLAM POST 911
Within hours of the planes hurtling into the World Trade Center of New York and Pentagon on 911,
Americans were crying out in anguish: “Why do they hate us”? The question was echoed throughout
Europe, since no doubt the attack was directed not just at America, but at the whole of Western
civilization.25 However, the tragic events of 911 and the fear and paranoia they have generated have set
Muslims back. America before 911 was on the verge of accepting Islam as one of it own, but after the attackof 911 it has paused to once again reassess Islam and Muslims.26
What happened on 911 and afterward has had significant and mostly negative consequences for the
Muslim communities in Europe, and has set back the process of mutual accommodation between Muslims
and European populations and the integration of both Islam and Muslims into Europe’s social, cultural andpolitical landscape.27
In the aftermath of 911, people of goodwill on both sides of the divide between the Judeo-Christian andMuslim worlds were filled with deep anxieties. For Westerners, it seemed that a dreadful clash of
civilizations had become imminent and unavoidable. For Muslims, it was clear that serious injury had been
done to the most powerful nation on earth – a wound that could only call for terrible retaliation. Many Jews
and Christians seized on the belief that something feral and evil in the faith of Muhammad had made 911
inevitable. Many Muslims feared that a new “crusade” against Islam would ensue, expressing deeply
ingrained impulses in the West.28
Indonesia has the biggest Muslim population in the world. Some Western educated or Western civilized
leaders (Prime Ministers or Presidents) regarded Indonesia as a heaven and paradise for terrorists. Theysaw Baasyir as an example of the Indonesian terrorist and that this was proven by some of the Islamic
doctrines taught at Pondok Pesantren Ngruki where Baasyir typically teaches his students. The popular
words of wisdom among the Santri that says “be alive honourable or die as a martyr” are regarded byWesterners as the doctrine of Islamic extremism and terrorism. Meanwhile, the well-known words of
wisdom among Indonesian Muslims are just a motivation of achievement and teaches the students how tolive in dignity. This prejudice was supported by the fact that some actors involved in suicide bombings were
the alumni of Pesantren or Islamic institutions.

25 Robert Van de Weyer, Islam and the West, p., ix.
26 Muqtadir Khan, American Muslims, p. 2.
27 Shireen T. Hunter (ed), Islam Europe’s Second Religion, p. 277.
28 Steephen Schwartz, The Two Faces of Islam: The House of Sa’ud From Tradition to Terror, Doubleday, New York, 2002, p.

xi.

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132ND INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

Suicide bombing was introduced as a new type of warfare in the Palestinian-Israeli conflict as a responseto the brutal aggression by the Israelis. On February 25, 1994, Dr. Baruch Goldstein, a Jewish settler who
emigrated to Israel from the United States, walked into the Mosque of the Patriach in Hebron and opened
fire, killing twenty-nine Muslim worshipers during their Friday congregational prayer. In response, Hamas(Islamic Resistance Movement) introduced suicide bombing promising swift revenge for the Hebron
massacre. The Hamas militia, the Qassem Brigade, undertook operations within Israel itself, in Galilee,
Jerusalem, and Tel Aviv. In Israel-Palestine, the use of suicide bombing increased exponentially during thesecond (al-Aqsha) intifada (uprising), which began in September 2000. The most horrific example of suicidebombings or attacks was seen in the attacks of 911.
Traditionally, Muslims are unconditionally forbidden to commit suicide, because only God has the right totake the life he has granted. There is only one verse that appears relevant to suicide in the Holy Quran, Q,
4:29.29

VI. CONCLUSION AND RECOMMENDATIONS
Could we have the globalized world with no discrimination and aggression? Such view of globalization
requires all citizens of the world to have mutual understanding of their similarity with other humans andtheir need for safety. As humans of different races, religions and civilizations, it is important that we
continue to learn from one another our glorious past as well as our pain. In the process of this mutual
dialogue, all religious leaders and policy makers should attempt to carry on responsibility for the creation ofa peaceful world.
Muslims certainly carry the heaviest load since Islam has been consistently described as the epitome ofradicalism, terrorism and evil religion. Such a hijacked portrayal of Islam does not accord with Islamicteaching that promulgates tolerance and understanding of other religious beliefs, languages and civilizations.
In the process, it is important for Muslims to reinterpret Islamic teaching so that Muslims combat themisuse of the Quran and Hadith in the name of religion as has been done by the global terrorists. Along withthis attempt, the changes in the foreign policy and public opinion of the rest of the world would decrease theprejudices against Islam and Muslims.

29 Q, 4:29 “O, you who believe! Do not consume your wealth in the wrong way – rather only through trade mutually agreed to,and do not kill yourselves, surely God is merciful toward you”.

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ISLAM POST 9-11: INDONESIA’’S EXPERIENCE
Juhaya S. Praja*
I. INTRODUCTION
As the world’s fourth largest country and the most populous Muslim nation on earth, Indonesia hosts anarray of Muslim groups ranging from traditional Islam to highly liberal. The vast majority of IndonesianMuslims are moderate and tolerant, but several radical groups have emerged. The assumption of emerging
Indonesian Muslim extremists became clearer when al-Qaeda was introduced to the region by Abdullah
Sungkar.1 The first indications of al-Qaeda’s plan to infiltrate Indonesia became known to Indonesian
intelligence in 1998, a few months before Sungkar left Malaysia and returned to Indonesia. Letters sent by
those who are prominent Islamic figures in Indonesia were intercepted. They contained a message from
Osama bin Laden: “that the most important obligation for Muslims nowadays was to work hard in order tofree Arabian lands from the grip of the enemy of Allah, especially pointing to American Christians and theJews”. Reflecting their relationship to the al-Qaeda leader, Sungkar also stated in the letter that “they werewilling to show the most secure way to visit Osama whenever the Islamic prominent figures would like to doso”. In response, Al-Qaeda dispatched a high-powered delegation to the region to enhance ideologicalinfluence and operational commitment. Foreign intelligence agencies reported that Ayman al-Zawahiri and
Muhammad Atef visited Moluccas and Irian Jaya in 2000, both areas affected by long-running conflict, thus
conforming with Al Qaeda’s preference for regrouping in areas where the rule of law is weak.2 Many
operations conducted by Al-Qaeda in Indonesia, the millennium bombings on Christmas Eve 2000, are very
instructive of their tactics. The campaign of bombings against thirty churches in Jakarta, West Java, North
Sumatera, Riau, Bandung, East Java and West Nusa Tenggara was coordinated with Al-Qaeda’. The Manila
attacks and investigation revealed they were authorized from Malaysia and Afghanistan.3
It was no doubt that the tragic events of 911 were the responsibility of Al-Qaeda’s network. The 19
terrorists were identified as Muslims and they have set American Muslims back. America before 911 was on
the verge of accepting Islam as one of its own, but after the attack of 911 it has paused to once again
reassess Islam and Muslims.4 Americans were crying out in anguish: “Why do they hate us”? The question
was echoed throughout Europe, since no doubt the attack was directed not just at America, but at the wholeof Western civilization.5
What happened on 911 and afterwards has had significant and mostly negative consequences for the
Muslim communities in Europe, and has set back the process of mutual accommodation between Muslims
and European populations and the integration of both Islam and Muslims into Europe’s social, cultural andpolitical landscape.6 In the aftermath of 911, people of goodwill on both sides of the divide between the
Judeo-Christian and Muslim worlds were filled with deep anxieties. For Westerners, it seemed that adreadful clash of civilizations had become imminent and unavoidable. For Muslims, it was clear that serious
injury had been done to the most powerful nation on earth – a wound that could only call for terrible
retaliation. Many Jews and Christians seized on the belief that something feral and evil in the faith of
Muhammad had made 911 inevitable. Many Muslims feared that a new “crusade” against Islam would ensue,
expressing deeply ingrained impulses in the West.7* Chairperson, Ph.D Programme of Islamic Law, Islamic State University of Bandung Rector, Latifah Mubarokiyah Institutefor Islamic Studies, Pondok Pesantren Suryalaya, Tasikmalaya, West Java, Indonesia.
1 Rohan Gunaratna, Inside Al-Qaeda Global Network Terror , Columbia University Press, New York-London-TorontoAuckland, 2002, pp. 198-200.
2 Ibid.
3 Ibid.
4 Muqtadir Khan, American Muslims, p. 2.
5 Robert Van de Weyer, Islam and the West, p., ix.
6 Shireen T. Hunter (ed), Islam Europe’s Second Religion, p. 277.
7 Steephen Schwartz, The Two Faces of Islam: The House of Sa’ud From Tradition to Terror, Doubleday, New York, 2002, p. xi.

40132ND INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

Fortunately, on September 17, 2001, President George W. Bush stood in the Islamic Centre of
Washington DC, the capital’s most important mosque. Following the events six days before, he sought tocalm the fears of Americans about terrorism. “The face of terror is not the true face of Islam”, he said “Actsof violence against innocents violate the fundamental tenets of the Islamic faith and it’s important for myfellow Americans to understand that”.8
In the light of the Tragedy of 911, Indonesia’s mainstream Islamic groups, Muhammadiyyah andNahdlatul Ulama immediately denounced the bombings as cruel and uncivilized crimes against humanity.
Further they stated that the recurrence of such cruel and uncivilized action depict the need to further
strengthen the capacity of the security officials to disclose the terrorist’s network of their efforts incombating terrorism in Indonesia.

II. INDONESIA’S CRIMINAL POLICY ON TERRORISM
One year after the 911 tragedy, Indonesia was challenged by the Bali suicide bombing I of October 12,
2003, the JJ Marriott Hotel bombing of August 5, 2005 and the Bali suicide bombing II of October 1, 2005.
The Indonesian government had to respond to these terrorist challenges within a difficult economic
environment. The choice to actively join or not join in the fight against terrorism carried the weight ofserious economic consequences. The decision to respond positively, if tentatively at first, to the call tocombat global terrorism was welcomed by the U.S. and generally by the international community.
The following highlights Indonesia’s efforts so far to create a foundation on which Indonesia continues tobuild the strength and capacity to counter terrorism.
Indonesia recognizes the urgent need to mount a universal and concerted response to rid societies ofcriminal acts of terrorism. Indonesia adopted Law No.15/2003 and 16/2003 as needs arise to crackdown on
terrorism following the terrorist bombing attack in Bali on 12 October 2002. The first law serves as thegeneral guideline for combating terrorists. The second law is specially drawn up to deal with the terrorist
attacks against tourists in Bali on 12 October 2002, which left nearly 200 dead. It stipulates the law
enforcers’ powers to investigate and prosecute the perpetrators of the attack.
Two Presidential Instructions were also issued in the aftermath of the Bali tragedy, namely Presidential
Instruction No. 4/2002 instructing the Coordinating Minister for Political and Security Affairs to formulate acomprehensive policy in combating terrorism, and Presidential Instruction No. 5/2002 instructing the Headof the National Intelligence Agency to coordinate the activities of all the other intelligence agencies. As afollow up to Presidential Instruction No. 4/2002, the Desk for Coordination of Eradicating Terrorism (DCET)
was established within the Office of the Coordinating Minister for Political and Security Affairs. The Desk,
composed of representatives from the relevant governmental agencies, is tasked to formulate Government
policies in combating and eradicating terrorism in a coordinated manner.
The Law 16/2003 is drawn up to allow for the principle of retroactivity to be applied in the case of the 12
October 2002 terrorist attacks. Opposition to this principle of retroactivity maintains that it goes against
both general legal principles and the 1945 Constitution. Critics also fear human rights violations resulting
from the enforcement of such principle. However, terrorist attacks are not ordinary crimes. Terrorism has an
indiscriminate, non-selective or random target. Terrorist attacks are extraordinary crimes intended to createa state of terror. Such crimes demand an extraordinary response. Nevertheless, the principle of retroactivity
will strictly apply only for the purposes of investigation and prosecution against the perpetrators of the 12
October 2002 terrorist attacks.
The legislation on terrorism provides the death penalty for natural persons and a one trillion Rupiah
maximum fine for a corporation convicted of committing or threatening to commit acts of terrorism. It allows
the authorities to detain people for seven days in the absence of strong legal evidence that the person may
have committed terrorist acts. Intelligence reports can be used as prima facie evidence after being approvedby a court of law with the approval process taking no longer than three days.

8 Ibid., p. 226.

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For investigation purposes, a suspect may be detained for six months. In implementing these regulations
on terrorism, the government will do its utmost to avoid excesses for a better cause, which is to prevent
violations of human rights and to protect its citizens from threats to their safety and security.
Following the 5 August 2003 bomb blast in Jakarta, the government of Indonesia revised Law No.15/2003
with a view to ensuring its effectiveness in efforts to eliminate the criminal acts of terrorism.
It is widely identified that terrorism activities may be funded from other kinds of crime, such as money
laundering. Pursuant to Law No. 15/2002 pertaining to the Crime of Money Laundering, the government ofIndonesia has also established an independent financial intelligence unit, the Indonesia Financial Transaction
Report and Analysis Centre (INTRAC), the main task of which is to prevent and eradicate the crime ofmoney laundering.
The Indonesian legislation on combating criminal acts of terrorism is a specific one, as it contains newprovisions that are not found in prevailing legislation, and are deviating from the general provision of the
Criminal Code and the Criminal Procedural Code.
This legislation also specifically contains the provision on the scope of international and transnational
jurisdiction and special provisions on criminal acts of terrorism that relate to international terrorism
activities. These special provisions are not discriminative in nature. Instead, they are the government’s
commitment to exercise Article 3 of the Convention for the Suppression of Terrorist Bombing (1997) andthe Convention for the Suppression of the Financing of Terrorism (1999).
More detailed specifications of this legislation are as follows:
1. The umbrella for other legislation relating to the elimination of criminal acts of terrorism;
2. This legislation is strengthened by criminal sanctions and simultaneously a coordinating act thatstrengthens the provisions of other legislation; and(i) Special provisions on the protection of the rights of the suspects/defendants, referred to as the“safeguarding rules”. The provisions introduce among others a new legal institution in thecriminal procedural code referred to as a ‘hearing’ that functions as an institution for ‘legal audit’
to all intelligence reports and documents submitted by the investigators to determine whether
or not to proceed with the investigation on alleged acts of terrorism;(ii) Affirming that criminal acts of terrorism are neither political crimes nor politically motivatedcrimes nor crimes with political objectives. Thereby allowing for the more effective
implimentation of bilateral and multilateral cooperation;(iii) Contains provisions that enable the President to establish a special ad hoc institution on theadvice of the National Police Chief. The existence of the force is based on the principles oftransparency and public accountability (sunshine principle) and/or the principle of effective time
limit (sunset principle) so as to avoid abuse of power by the institution;(iv) Contains provisions on jurisdiction based on the territorial, extra-territorial and national-active
principles, thus it is expected that this legislation can effectively reach criminal acts of terrorism
as stipulated in this legislation beyond the national territorial boundaries of the Republic ofIndonesia. In order to strengthen the jurisdiction, this legislation also contains provisions on
international cooperation;(v) Contains provisions on the financing of terrorist activities as criminal acts of terrorism,
simultaneously strengthening the law on Criminal Acts of Money Laundering; (8) The
legislative provisions do not apply to the freedom of expression before the public throughdemonstrations, protests or other activities of advocacy. If in the freedom of expression there
are acts with criminal elements, the Criminal Code and the Criminal procedural Law shall apply;
3. Maintaining the application of special minimum criminal sanctions to discourage and deter theperpetrators of criminal acts of terrorism.

III. COUNTER TERRORISM: CULTURAL AND RELIGIOUS APPROACH
The elimination of criminal acts of terrorism in Indonesia is not only a question of law and law
enforcement but also a social, cultural, economic and religious issue that is closely-related to the security of
the nation. Therefore, the policies and measures to prevent and eliminate it should also be aimed atmaintaining the equilibrium in the obligation to protect the state’s sovereignty, the human rights of thevictims, the witnesses and the suspects or defendants.

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132ND INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

The unprecedented attack of 911 in the U.S. had a strong negative impact on the culture, politics,
economy and beliefs of Indonesian Muslims as a whole. This negative impact became more seriously after
the Bali tragedy on 12 October 2002 which appeared to be the second largest loss of life after 911 (killedover 200 and wounded a few hundred); again a shocking tragedy took place at the JW Marriott Hotel Jakarta
on August 5, 2003 and Bali II, October 1, 2005. Buyers of Indonesian products have reportedly been
unwilling to travel to Indonesia and have begun to source purchases elsewhere in the region. In part, this isa result of the perception that foreigners, particularly Americans, may be targets of extremists and theissuance of threats against American interests has reinforced this negative image of Indonesia. Indirect
evidence of the negative impact of the September 11 attacks is seen in the fact that growth rates of US
imports of nine of the ten top labour-intensive product groups from Indonesia were negative in the fourth
quarter of 2001. In seven of nine cases, growth became negative, or if already negative, worsened in the
fourth quarter compared with the third quarter of the year. These products include apparel items (5 SITC 3digit product groups) footwear, and toys and sporting goods. The downside of the terrorist attacks of
September 11 is likely to be magnified should Indonesia be unable to respond effectively to reverse thesenegative perceptions in the US.9
The defendant in the suicide bombing Bali I, Amrozi, described his Islamic opinions to his family whichwere covered by the local daily newspaper Pikiran Rakyat in regard to the Holy Day of Islam, Idul Fitri 1426
H in his Jail at Nusakambangan. He stated that he is an Islamic martyr and is proud to be sentenced to death.
He believes that he will go to heaven as God’s reward for his act of terrorism which he regarded as Jihad in
accordance with the Quran’s command. Undoubtedly, such an opinion is really wrong and depicts little
knowledge of Islamic doctrine, but distorts and hijacks the meaning of jihad. Therefore, eliminating such actsof terrorism based on the right understanding of Islamic doctrine, especially on the meaning of jihad, must
be a priority action of the government. Meanwhile the late suspected suicide bombers of Bali II (R. Aja’s
Café Kuta Bali), Aip Hidayat, Misno and Salik Firdaus came from poor families and they have little
knowledge of Islam which allows them to be easily influenced by the misused concept of jihad and Islam.
This is to say that economic factors and a lack of knowledge of the true meaning of jihad play a role intriggering someone to be involved in acts of terrorism. Therefore, dissemination of the true meaning of jihadand the danger of misusing its concept is greatly needed as a way to eliminate terrorism among theMuslims.
Eliminating terrorism within Muslim society, considering a religious approach, highly suggested
disseminating the real meaning of jihad and “sword verses” and the abused ones as well. A short description
on the meaning of true and abused Islamic jihad may be summarized as follows: The two broad meanings ofjihad, non-violent and violent, are contrasted in a well-known Prophetic tradition. It’s said that when
Muhammad returned from battle he told his followers: “We return from the lesser jihad (warfare) to thegreater jihad”. The greater jihad is the more difficult and more important struggle against one’s ego,selfness, greed, and evil.
Jihad is a concept with multiple meanings, used and abused throughout Islamic history. Although jihad
has always been an important part of the Islamic tradition, in recent years some have maintained that it is auniversal religious obligation for all true Muslims to join the jihad to promote Islamic reform or revolution.
Some look around them and see a world dominated by corrupt authoritarian regimes and a wealthy elite
minority concerned solely with its own economic prosperity and awash in Western culture and values.
Western governments are perceived as propping up oppressive regimes and exploiting the region’s humanand natural resources, robbing Muslims of their culture and their option to be governed according to theirown choice and to live in a more just society.
The defensive nature of jihad is clearly emphasized in Q.2:190, “And fight in the way of God with those
who fight you, but agrees not: God loves not the aggressors”. The Quran provided detailed guidelines andregulations regarding the conduct of war: who is to fight and who is exempted (Q 48:17, 9:91), when
hostilities must cease (Q 2:192) and how prisoners should be treated (Q 47:4). The most important verses
such as Q 2:294 emphasized that warfare and the response to violence and aggression must be proportional:“Whoever transgresses against you, respond in kind”.
9 William E. James. Indonesia’s External Trade and Competitiveness: Assessing the Economic Costs of Terror presented at

the conference on The Economic Cost of Terrorism: Indonesia’s Responses, Shangri-La Hotel, Jakarta, 7 May, 2003.

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However, Quranic verses also underscore that peace, not violence and warfare is the norm. Permission tofight the enemy balanced by a strong mandate for making peace; “If your enemy inclines toward peace, then
you too should seek peace and put your trust in God” (Q 8:61) and “Had Allah wished, he would have madethem dominate you, and so if they leave you alone and do not fight you and offer you peace, then Allah allows
you no way against them” (4:90). From the earliest time, it was forbidden in Islam to kill non-combatants aswell as women and children and monks and rabbis, who were given the promise of immunity unless they
took part in fighting.
But what of those verses, sometimes referred to as the “sword verses” that call for killing unbelievers,
such as, “When the sacred months have passed, slay the idolaters wherever you find them, and lie in wait forthem, at every place of ambush” (Q 9:5). These same verses have also been selectively used or abused byreligious extremist to develop a theology of hate and intolerance and to legitimate unconditional warfare
against unbelievers. The Ulama (religious scholar) said that “sword verses” abrogated or overrode theearlier Quranic verses that limited jihad to defensive war: in fact, however, the full intent of “When thesacred months have passed, slay the idolaters wherever you find them” is missed or distorted when quoted
in isolation. For it is followed and qualified by: “But if they repent and fulfil their devotional obligations andpay zakat (charitable tax on Muslims), then let them go their way, for God is forgiving and kind” Q.9:5. The
same is true of another often quoted verse: “Fight those who believe not in God nor Last Day, nor hold thatforbidden which had been forbidden by God and His Apostle, nor hold the religion of truth [even if they are]of the People of the Book,” which is often cited without the line that follows “Until they pay the tax withwilling submission, and feel themselves subdued” Q 9:29.
Terrorists like Osama bin Laden as well as Indonesian terrorists go beyond classical Islam’ criteria for ajust jihad and recognize no limits but their own, employing weapons or means. They reject Islamic law’s
regulations regarding the goals and legitimate means for a valid jihad: that violence must be proportional andthat only the necessary amount of force should be used to repel the enemy, that innocent civilians should not
be targeted, and that jihad must be declared by the ruler or head of state. Today, individuals and groups,
religious and lay, seize the right to declare and legitimate an unholy war of terrorism in the name of Islam.
Although most Indonesians are Sunni and follow the Islamic school of law response to marginalize
extremists and develop a political theory that emphasizes stability over chaos and anarchy, this does notdissuade all from an extremist path. After 911 and a couple of years before, extremist groups have risen up
to challenge the Indonesian government and terrorized their population and attack foreign interests. As
stated by “an Indonesian suspected terrorist” that he is the true believer struggling against a pagan societyof unbelief or the acts of idolaters in the country. The terrorists attempt to impose their ideological brand ofIslam and “hijacked” Islamic doctrines such as jihad, claiming to be defending true Islam, to legitimate theirillegitimate use of violence and acts of terrorism.

IV. CONCLUSION AND RECOMMENDATION
Combating terrorism and securing the nation and the people from future terrorist attacks are the top
priority of the Indonesian government.
Indonesian Muslims denounced the terrorist attacks as cruel and uncivilized crimes against humanity.
However, this most populous Muslim nation on earth, Indonesia, hosts an array of Muslim groups ranging
from traditionalist to highly liberal.
The early combating of terrorism will be more effective through the reformation of an Islamic curriculum
for all levels of education endorsed by the Government and the Ulama (Muslim Scholars), individually andinstitutionally.

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PARTICIPANTS’ PAPERS
COUNTRY REPORT: BRAZIL
Laercio Rossetto*
I. INTRODUCTION
The present essay has been prepared with the most up-to-date material expounding the current positionof the Federative Republic of Brazil against all acts of global terrorism and the domestic legal regime forcombating this international threat. In this regard studies were made accordingly to the Constitution
promulgated on October 5, 1988 and on well-grounded laws, decrees, international conventions andprotocols pertaining to the guiding principles for fighting terrorism, which Brazil has ratified and introduced
into its legal system.
In order to enrich the information made available through this paper, factual analyses concerning Brazil’s
situation in reference to eventual terrorist threats have been included, along with some data relating to theneighbouring countries in South America, such as Colombia and the tri-border region involving Brazil,
Argentina and Paraguay, without the presumption of exhausting the subject.
Brazil is committed, with the international community and its own citizens, in being vigilant towards therule of law, respect for human rights, liberty, equality and the right to life itself, without any distinction
whatsoever, under the terms of Article 5 of the Federal Constitution. Through the usage of strong andeffective anti-terrorism legislation, combined with appropriate strategic, national, police and military
intelligence accompanied by efficient law enforcement and government agencies, terrorist threats can bediminished at their root.

II. INTERNATIONAL TERRORISM IS A WORLDWIDE MENACE
There isn’t the slightest doubt that international terrorism represents a threat to every country in theworld, for terrorist attacks have been of global reach in the international community. To create aninternational environment inhospitable to terrorists and all those who support them, will be of great
effectiveness in the struggle against this worldwide menace. Terrorists share the misguided belief thatkilling, kidnapping, extorting, robbing, bombing, and wreaking havoc to terrorize countries and entire
populations are legitimate forms of political or religious action.
The Federative Republic of Brazil Condemns Any Form of Terrorism
As the former President of the Federative Republic of Brazil, Fernando Henrique Cardoso, once statedduring a press release related to the United States military operations against strategic targets in
Afghanistan, addressing President George W. Bush on October 7, 2001, straight from the “Planalto” Palace,his office in Brasilia, the Capital of Brazil:“The Brazilian people’s peaceful inclination and repudiation of terrorism are constitutional tenets thatgovern our country’s foreign policy. Our position is clear. By repudiating terrorism in any form, regardless of
its perpetrators, we are siding with reason and wisdom. This conflict is not being engaged against a people, aState or a religion. The objective is solely to contain and eliminate the scourge of terrorism. I hope – and I
am sure that this hope is shared by all – that the operations launched today will entail no tragic
consequences, and that they will seek to prevent the loss of innocent lives and preserve the civilian
population.”
The current President of Brazil Luiz Inácio Lula da Silva at the United Nations Security Summit in New
York, September 14, 2005 presented a statement entitled “Threats to International Peace and Security”,
expressing his indignity towards barbaric acts of terrorism perpetrated against innocent and defencelesspeople affirming the need to eradicate terror around the world.

* Police Chief, Civil Police of the Federal District, Brazil.

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Brazil’s seventh Constitution – promulgated on October 5, 1998 – was established by a convened
National Constituent Assembly in order to institute a democratic state for the purpose of ensuring theexercise of social and individual rights, liberty, security, well-being, development, equality and justice as
supreme values of a fraternal, pluralist and unprejudiced society, founded in social harmony and committed,
in the internal and international orders, to the peaceful settlement of disputes, being promulgated on
October 5, 1988.
As established in Article 4 of the Brazilian Constitution the country’s international relations are governedby the following principles:(i)National independence(ii) Prevalence of human rights(iii) Self-determination of the people(iv) Non-intervention(v) Equality among states(vi) Defence of peace(vii) Peaceful settlement of conflicts(viii) Repudiation of terrorism and racism(ix) Cooperation among peoples for the progress of mankind(x) Granting of political asylum.
Of all of these principles it’s important to emphasize Brazil’s repudiation of terrorism for the purpose ofthis paper, which has been stated at a constitutional level, in the means that this principle must be obeyed
and honoured by all powers of the Federal, State and District Governments of Brazil, comprising the
Executive, Legislative and Judicial Branches, that are independent and harmonious among themselves.
Article 5, item XLIII of the Constitution also determines that the practice of torture, illicit traffic of narcotics
and related drugs, as well as terrorism, and crimes defined as heinous crimes shall be considered by law as
non-bailable and not subject to grace or amnesty, and their principals, agents and those who omit themselves
while being able to avoid such crimes shall be held liable. Brazil is definitely a nation that rejects all forms ofcriminal, social or political violence.

III. FACTS REGARDING BRAZIL’S SITUATION ON TERRORISM
A. The Cabinet of Institutional Security of the Presidency of the Republic (GSI) and Brazil’s Intelligence
Agency (ABIN)
According to Federal Law No. 10,683 of May 28, 2003 (Article 6), the Cabinet of Institutional Security of
the Presidency of the Republic is in charge of personally advising the President in all matters of security andmilitary affairs, whose Minister in Chief is an Army General. The Brazilian Intelligence Agency (ABIN)
established by Federal Law No. 9,883 of December 7, 1999 and regulated by Federal Decrees Nos. 3,448 of
May 7, 2000; 3,493 of May 29, 2000; 3,695 of December 21, 2000; and 4,376 of September 15, 2002, which isthe equivalent of the Central Intelligence Agency (CIA) in the United States of America, is responsible forthe planning, execution, coordination, supervision and control of all intelligence activities and information
systems in Brazil, always furnishing precise and reliable data to the President of the Republic. These
government agencies are of extreme importance in monitoring and preventing eventual terrorist activity inthe country.
B. Intelligence Monitoring in the Tri-Border Region of Brazil, Argentina and Paraguay
After the terrorist attacks in the United States on September 11, 2001, the suggestion that radical groups
are installed and supported by Arab-Palestinian communities in South America has been raised from time totime. Suspicion of involvement with extremist activities, especially those connected to financing terrorism,
have constantly been levelled against Southern Cone countries, particularly those that form the tri-national
border at the city of “Foz do Iguaçu”, in the South region of Brazil, bordering Argentina and Paraguay.
1. Terrorists Attacks on Argentina
Nonetheless, since the 1990s, and because of the deadly attacks that took place in 1992 and 1994 in
Argentina, where two bombs devastated the Argentinean Jewish Community and marked the arrival, for the
first time, of Middle East terrorism in South America, Brazil has been developing intelligence andinformation exchange strategies with the other tri-border nations. Argentina’s Israeli Embassy in Buenos

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Aires was the sight of the first explosion, a car bomb, on March 17, 1992, killing 29 and injuring over 250,
where the Islamic Jihad claimed responsibility immediately after it happened. On July 18, 1994 the AMIA
Jewish Community Centre in Argentina’s capital was bombed causing the death of 87 people. Later in 1994
came the first of several breakthroughs in the embassy bombing case, where six Lebanese and one Brazilian,arrested for operating a drug cache, were found to be members of Hezbollah, the Iranian-backed Lebanese
terrorist organization, and the Argentine Government announced that they where tied to that bombing.
2. Extremist Groups in the Tri-Border Region
The Tri-Border region continues to present a series of interdependent factors that in the whole may
provide a stimulus for extremist organizations to become active in the area. Monitoring suspicious activities
there is challenging due to the hermetically sealed nature of Islamic communities, which display a great
desire to preserve values and cultural identity, for it is known that al-Qaeda recruits Muslim men fromaround the world. Many recruits have come from Saudi Arabia, Egypt, and Yemen, but al-Qaeda has also
succeeded in attracting Muslims living in the West.
Al-Qaeda is an international terrorist network led by Osama bin Laden seeking to rid Muslim countries ofwhat it sees as the profane influence of the West, and replace their governments with fundamentalist Islamic
regimes. The al-Qaeda organization is apparently connected to other terrorist factions, such as the following:(i)
Egyptian Islamic Jihad(ii)
The Libyan Islamic Fighting Group(iii) Islamic Army of Aden (Yemen)(iv) Jama’at al-Tawhid wal Jihad (Iraq)(v)
Lashkar-e-Taiba and Jaish-e-Muhammand (Kashmir)(vi) Islamic Movement of Uzbekistan(vii) Salafist Group for Call and Combat and the Armed Islamic Group (Algeria)(viii) Abu Sayyaf Group (Malaysia, Philippines)(ix) Jemaah Islamiya (Southeast Asia)
There is also the varying manner in which these activities are looked upon by the specific legislation ofeach country. Although these communities do integrate and adopt local habits and customs, they retain theirsocial, political and cultural identity, as well as strong links to their origins.
The Tri-Border region has been the target of an ongoing surveillance effort that dates back more than adecade and pools the resources of Brazil, Paraguay, and Argentina. Following the attacks of September 11,
2001 this effort has even been strengthened by the creation of the “Mercosul” Common Market of the South
Working Group on Terrorism and the “3+1 mechanism”, which combines intelligence-gathering capabilities
and promotes information sharing among Brazil, Argentina, Paraguay and the United States of America as aguest participant. New conclusions were announced and agreed to by the four delegations. The statement
read as follows:“No operational activities linked to terrorism have been detected in the Tri-Border region by radicalizedgroups such as Hezbollah, Hamas or al-Qaeda, be they terrorist activities or efforts to develop or train newmembers for terrorist organizations, or so-called sleeper cells. It is agreed that no location on the planet is
exempt from this possibility, making it necessary to maintain vigilance and strengthen policing, immigrationand passport control efforts in the region.”
No concrete evidence has proven the presence of terrorist organizations or even the existence of fundraising activities in the area. This has been confirmed and publicly recognized by the Executive Secretary of
the Inter-American Committee against Terrorism (CICTE) of the Organization of American States (OAS),
who visited the region in August 2003. Brazil has been an active participant of the committee and on June 3,
2002 the OAS General Assembly approved CICTE Resolution No. 1840 as an updated instrument toprevent, combat and eradicate terrorism, which it has signed on.
The threat of terrorists cells being installed in a particular region or country has to due with the fact that
activities that provide logistical or recruitment support for terrorism can be carried out in just about any partof the world, owing to their transnational dissemination.

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As a result of policing and intelligence operations, although sympathizers of organizations such as
Hezbollah and Hamas were identified, no cells or training camps connected to terrorist organizations werelocated in the region, nor have any signs or connections to terrorism been found in Brazil according to theBrazilian Intelligence Agency (ABIN).
3. Possible Terrorist Threat in the Amazon Region of Brazil by the Revolutionary Armed Forces of Colombia(FARC)
Brazil is also maintaining surveillance in the Amazon region nearby Colombia where the two leftist
insurgent groups not only wage guerrilla warfare but also carry out kidnappings, hijackings, attacks on
civilians, and political assassinations. In that region there’s the Revolutionary Armed Forces of Colombia,
know by its Spanish acronym – “FARC” and the National Liberation Army – “ELN”, considered by Brazil as
typical guerrilla groups, despite the fact that The United States State Department includes them on its list offoreign terrorist organizations. Although ELN is more ideological than FARC, the two groups have similar
programmes, both say that they represent the rural poor against Colombia’s wealthy classes and oppose
American influence in Colombia, the privatization of natural resources, multinational corporations, andrightist violence.
The Revolutionary Armed Forces of Colombia are the largest and best-equipped rebel group in theregion, with some 18,000 members operating in about half the country, mostly in the jungle of the southeast
plains at the base of the Andes Mountains. FARC is responsible for most of the ransom kidnappings in
Colombia and they target wealthy landowners, foreign tourists, and prominent international and domestic
officials, stepping up its terrorists activities against infrastructure in Colombian cities and promoting theillegal cocaine drug trade.

IV. BRAZIL’S LEGAL REGIME FOR COMBATING TERRORISM
A. Universal Conventions and Protocols Pertaining to Terrorism that Brazil has Ratified and Implemented
into its Legal Regime(i)

Convention on Offences and Certain Other Acts Committed On Board Aircraft (“Tokyo
Convention”, 1963) – promulgated in Brazil by Federal Decree No. 66,520 of April 14, 1970.
(ii)
Convention for the Suppression of Unlawful Seizure of Aircraft (“Hague Convention”, 1970) –promulgated in Brazil by Federal Decree No. 70,201 of February 14, 1972.
(iii) Convention to Prevent and Punish the Acts of Terrorism Taking the Forms of Crimes against
Persons and Related Extortion that are of International Significance (Washington D.C., 1971) –promulgated in Brazil by Federal Decree No. 3,018 of February 5, 1999.
(iv) Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (“Montreal
Convention”, 1971) – promulgated in Brazil by Federal Decree No. 72,383 of January 26, 1973.
(v)
Convention on the Prevention and Punishment of Crimes against Internationally Protected
Persons (1973) – promulgated in Brazil by Federal Decree No. 3,167 of June 7, 1999.
(vi) International Convention against the Tacking of Hostages (“Hostages Convention”, 1979) –promulgated in Brazil by Federal Decree No. 3,517 of April 7, 2000.
(vii) Convention on the Physical Protection of Nuclear Material (“Nuclear Materials Convention”, 1980) –promulgated in Brazil by Federal Decree No. 95 of February 8, 1987.
(viii) Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil
Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safetyof Civil Aviation (Montreal, 1988) – promulgated in Brazil by Federal Decree No. 2,611 of June 8,1997.
(ix) Convention on the Marking of Plastic Explosives for the Purpose of Detection (Montreal, 1991) –promulgated in Brazil by Federal Decree No. 4,021 of December 3, 2001.
(x)
International Convention for the Suppression of Terrorist Bombing (New York, 1998) –promulgated in Brazil by Federal Decree No. 4,394 of September 22, 2002.
(xi) United Nations Security Council Resolution No. 1373 of September 28, 2001 (declared that acts,
methods and practices of terrorism are contrary to the purposes and principles of the United
Nations, and called upon all States to become parties as soon as possible to relevant international
conventions and protocols relating to terrorism, and fully implement them) – which Brazil issignatory in accordance to Federal Decree No. 3,976 of October 18, 2001.

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Under the terms of Resolution 1373 (2001) Brazil will prevent and suppress the financing of terrorism, as
well as criminalize the wilful provision or collection of funds for such acts. The funds, financial assets andeconomic resources of those who commit or attempt to commit terrorist acts or participate in or facilitate
the commission of terrorist acts, and of persons and entities acting on behalf of terrorists should also befrozen without delay. It also has prohibited nationals, persons or entities in their territories providing funds,
financial assets, economic resources, financial or other related services to persons who commit or attempt tocommit, facilitate or participate in the commission of terrorist acts. Also by the text, the Council called on all
States to intensify and accelerate the exchange of information regarding:(i)Terrorist actions or movements(ii)
Forged or falsified documents(iii) Traffic in arms and sensitive material(iv) Use of communications technologies by terrorist groups(v)
The threat posed by the possession of weapons of mass destruction
The Adoption of International Conventions and Protocols by Brazil’s Legal System
It is exclusively the competence of Brazil’s National Congress to decide conclusively on international
treaties, agreements or acts which result in charges or commitments that go against the national property(Article 49, I of the Constitution) through a legislative decree. The President of the Republic has exclusive
power to sanction, promulgate and order the publications of law, as well as to issue presidential decrees andregulations for the true enforcement thereof (Article 84, IV of the Constitution). The President may also
conclude international treaties, conventions and acts, ad referendum, of the National Congress (Article 84,
VIII of the Constitution).

B. Brazil’s Domestic Legislation for Combating Terrorism
1. The 1988 Constitution of the Federative Republic of Brazil
The most important written document in Brazil’s legal regime is the 1988 Constitution of the Federative
Republic containing 250 Articles with dozens of paragraphs, sections and hundreds of items; 48 amendments
and 6 revision amendments, regulating the country’s entire legal system and guaranteeing the free exerciseof the Executive Power, the Legislative Power, the Judicial Power, the Public Prosecution and theconstitutional Powers of the units of the Federation.
As explained before, acts of terrorism are treated as heinous crimes, but whenever any type of legislation
or international convention is to be introduced into Brazil’s legal system they must obey and respect
constitutional commands such as the following:(i)
The law shall not exclude any injury or threat to a right from the consideration of the Judicial
Power (Article 5, XXXV)(ii)
The law shall not injure the vested right, the perfect juridical act and the res judicata (Article 5,
XXXVI)(iii)
There shall be no exceptional tribunal or court (Article 5, XXXVII)(iv)
There is no crime without a previous law to define it, nor a punishment without a previous legal
commination (Article 5, XXXIX)(v)
Penal law shall not be retroactive, except to benefit the defendant (Article 5, XL)(vi)
The law shall punish any discrimination which may attempt against fundamental rights andliberties (Article 5, XLI)(vii)
The practice of torture, the illicit traffic of narcotics and related drugs, as well as terrorism, andcrimes defined as heinous crimes shall be considered by law as non-bailable and not subject tograce or amnesty, and the principals, agents and those who omit themselves while being able to
avoid such crimes shall be held liable (Article 5, XLIII)(viii) The action of armed groups, either civil or military, against the constitutional order and thedemocratic state is a non-bailable crime, with no limitation (Article 5, XLIV)(ix)
No punishment shall go beyond the person of the convict, and the obligation to compensate forthe damage, as well as the decreeing of loss of assets may, under the terms of the law, be
extended to the successors and be executed against them, up to the limit of the value of theassets transferred (Article 5, XLV)(x)
The law shall regulate the individualization of punishment and shall adopt the following, among
others (Article 5, XLVI):

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RESOURCE MATERIAL SERIES No.71• Deprivation or restriction of freedom• Loss of assets• Fine• Alternative rendering of social service• Suspension of deprivation of rights(xi)
There shall be no punishment (Article 5, XLVII)• Of death, save in the case of declared war, under the terms of Article 84, XIX• Of life imprisonment• Of hard labour• Of banishment• Which is cruel(xii)
The sentence shall be served in separate establishments, according to the nature of the offence,
the age and the sex of the convict (Article 5, XLVIII)(xiii) Prisoners are ensured respect of their physical and moral integrity (Article 5, XLIX)(xiv) Female prisoners shall be ensured of adequate conditions to stay with their children during thenursing period (Article 5, L)(xv)
No Brazilian shall be extradited, except the naturalized ones in the case of a common crimecommitted before naturalization, or in the case where there is sufficient evidence of participationin the illicit traffic of narcotics and related drugs, under the terms of law (Article 5, LI)(xvi) Extradition of a foreigner on the basis of a political or ideological crime shall not be granted(Article 5, LII)
(xvii) No one shall undergo legal proceeding or sentencing save by the competent authority (Article 5,
LVIII)(xviii) No one shall be deprived of freedom or of his assets without the due process of law (Article 5,
LIV)(xix) Litigants, in judicial or administrative processes, as well as defendants in general are ensured of
the adversary systems and of full defence, with the means and resources inherent to it (Article 5,
LV)(xx)
Evidence obtained through illicit means are unacceptable in the process (Article 5, LVI)(xxi) No one should be considered guilty before the issuing of a final and un-appealable penal sentence(Article 5, LVII)(xxii) No one who has undergone civil identification shall be submitted to criminal identification, save inthe cases provided by law (Article 5, LVIII)(xxiii) Private prosecution in the cases subject to public prosecution shall be admitted, whenever thelatter is not filed within the period established by law (Article 5, LIX)
(xxiv) The law may only restrict the publicity of procedural acts when the defence of privacy or thesocial interest require it (Article 5, LX)(xxv) No one shall be arrested unless in flagrante delicto or by written and justified order of acompetent judicial authority, save in the cases of military transgression or specific military crime,
as defined in law (Article 5, LXI)
(xxvi) The arrest of any person as well as the place where he is being held shall be immediately
informed to the competent judge and to the family of the person arrested or to the person
indicated by him (Article 5, LXII)(xxvii) The arrested person shall be informed of his rights, among which the right to remain silent, andhe shall be ensured of assistance by his family and a lawyer (Article 5, LXIII)(xxviii) The arrested person is entitled to identification of those responsible for his arrest or for his policequestioning (Article 5, LXIV)(xxix) Illegal arrest shall be immediately remitted by the judicial authority (Article 5, LXV)(xxx) No one shall be taken to prison or held therein, when the law admits release on own
recognizance, subject or not to bail (Article 5, LXVI)(xxxi) Habeas corpus shall be granted whenever a person suffers or is in danger of suffering violence or
coercion against his freedom of locomotion, on account of illegal actions or abuse of power(Article 5, XLVIII)(xxxii) A writ of mandamus shall be issued to protect a clear and perfect right, not covered by habeas
corpus, whenever the party responsible for the illegal actions or abuse of power is a public official
or an agent of a corporate legal entity exercising duties of the Government (Article 5, LXIX)
Article 5, paragraph 2 of the Constitution also states that the rights and guarantees expressed in theConstitution do not exclude others deriving from the regime and from the principles adopted by it, or fromthe international treaties in which the Federative Republic of Brazil is a party.

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2. The Council of the Republic and the National Defence Council
As defined in Article 89 and 91 of Brazil’s Constitution the Council of the Republic is a higher body for
consultation by the President of the Republic, and its members are the Vice President of the Republic; thePresident of the Chamber of Deputies; the President of the Federal Senate; the majority and the minority
leaders in the Chamber of Deputies; the majority and the minority leaders in the Federal Senate; theMinister of Justice; and six born Brazilian citizens, over thirty-five years of age, two of which are appointed
by the President of the Republic, two elected by the Federal Senate and two elected by the Chamber of
Deputies, all with a term of office of three years.
The Council of the Republic has the competence to express opinion on federal intervention, state ofdefence and stage of siege, and on matters relevant to the stability of the democratic institutions (regulated
by Federal Law No. 8,041 of June 5, 1990).
The National Defence Council is a consultation body of the President of the Republic on matters related
to national sovereignty and the defence of the democratic state, having as permanent members: the VicePresident of the Republic; the President of the Chamber of Deputies; the President of the Federal Senate;
the Minister of Justice; the Minister of Defence; the Minister of External Relations; the Minister ofPlanning; the Commanders of the Navy, the Army, and the Air Force (regulated by Federal Law No. 8,183 ofApril 11, 1991 and Federal Decree No. 893 of August 12, 1993).
It has the mission to express opinion in the event of declaration of war and making peace, as establishedin the Constitution, and on decreeing a state of defence, state of siege and federal intervention. The Council
may also propose the criteria and conditions for the use of areas which are indispensable to the security of
the national territory and to express opinion on their actual use, especially on the boundary zone and on
those related to the preservation and exploitation of natural resources of any kind.
The President of the Republic may, after hearing the Council of the Republic and the National Defence
Council, request authorization from the National Congress to decree a state of siege in the event of serious
disturbance with nationwide effects or occurrence of facts that evidence the ineffectiveness of measurestaken during the state of defence.
3. The Armed Forces and Public Safety Institutions
As established in Article 142 of the Constitution, the Armed Forces, comprised of the Navy, the Armyand the Air Force, are permanent and regular national institutions, organized on the basis of hierarchy anddiscipline, under the supreme authority of the President of the Republic, and are intended for the defence ofthe country, for the guarantee of the constitutional powers, and on the initiate of any of these, of law andorder.
Under Article 144 of the Federal Constitution, Public safety is the duty of the State and the right andresponsibility of all, being exercised to preserve public order and the safety of persons and property, bymeans of the following institutions:(i)Federal police(ii)
Federal highway police(iii) Federal railway police(iv) Civil police(v)
Military police and military fire brigades
Complementary Laws Nos. 97 of June 9, 1999 and 117 of September 2, 2004 allows that both the Armed
Forces and the Public Safety Institutions work together when necessary to re-establish the rule of law andpublic order.
4. Complementary and Ordinary Laws for Combating Terrorism(i)Complementary Law No. 105, of January 10, 2001 allows the disregard of privacy of financial andbank transactions in the interest of criminal investigations or criminal proceedings relating tofinancing or support of terrorist acts, money laundering, illicit drug trafficking, organized crime andother unlawful acts, as well as the exchange of financial information with other countries (Article 1,
paragraph 2, Article 2, paragraph 4, II, b).

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Federal Law No. 6,815 of August 19, 1980 defines the juridical situation and entrance of foreigners
in Brazil, in Article 77 paragraph 3, which allows the Supreme Federal Court to extradite
perpetrators of terrorism and terrorists without infringing Article 5, LII of the Federal
Constitution, making it possible to disregard the prohibition of turning criminals that commit
ideological crimes to a jurisdiction of another country.
(iii) Federal Law No. 7,170 of December 14, 1983 defines crimes against national security, social andpolitical order, and establishes procedures for investigation and trial of its offenders. In Article 19
there is a penalty of 2 to 10 years imprisonment against perpetrators that commit unlawful seizureof aircraft, vessels or any transportation vehicle. Article 20 imposes 3 to 10 years imprisonment on
those that commit acts of terrorism or politically motivated violence for the maintenance of subnational groups or clandestine agents.
(iv) Federal Law No. 9,474 of July 22, 1997 Article 3, I and IV, forbids asylum to refugees that havecommitted crimes against peace, war crimes, crime against humanity, heinous crimes involving
terrorist acts or illegal drug trafficking, and also those that are guilty of going against the principlesof the United Nations.
(v)
Federal Law No. 9,034 of May 3, 1995 altered by Federal Law No. 10,217 of April 11, 2001
regulates the obtaining of evidence against all kinds of criminal organizations, including terrorist
organizations, for the purpose of criminal investigations and proceedings in court, allowing police
infiltration and intelligence operations.
(vi) Federal Law No. 9,296 of July 24, 1996 regulates the interception of telephone, computer and any
sort of means of communication for the purpose of criminal investigation and proceedings in court.
(vii) Federal Law No. 9,613 of March 3, 1998 defines crimes of money laundering, illegal financial assets
or economic resources and creates the Control Council of Financial Operations (COAF) regulated
by Federal Decree No. 2.799 of October 8, 1998 which operates with the Central Bank of Brazil.
(viii) Law Decree No. 2,848 of December 7, 1940 – Brazil’s Penal Code, Articles 250 (cause arson); 251(cause explosion); 252 and 253 (usage, fabrication or transportation of toxic gas); 254 and 256(cause flooding and collapse of buildings or constructions) among many other crimes.
(ix) Law Decree No. 3,689 of October 3, 1941 (Brazil’s Penal Code of Procedure)
The Executive Branch submitted bill No. 6,764/2002 to Brazil’s National Congress for appreciation andapproval. The proposed law describes a series of acts that are considered as the practice of terrorism, but it
is still under discussion and awaits deliberation in order to be voted on.

V. CONCLUSION
An improved and stronger legal regime is probably the first and most important step in the fight against
terrorism, but it demands a combination of many factors. The process of achieving legislative change canitself be difficult and require considerable political will. New laws themselves may only achieve symbolicchange so that people can be reassured that the problem has been dealt with. If they are not matched byeven greater efforts in implementing those laws then little that is real may change.
Nations must use every measure of power to diminish the scourge of terrorism – diplomatic, economic,
law enforcement, financial, intelligence and especially mutual cooperation with the United Nations, its
Member States, Organization of American States, and other international and regional organizations.
The Federative Republic of Brazil until now hasn’t detected or encountered any terrorist cell, activity or
attack, but will always remain watchful and alert to this threat. Brazil’s legal regime for combating terrorism
has expanded, yet it can still be improved to be more effective, especially on the part of carrying out criminal
sentences and punishment and avoiding impunity, for they are lax.
The country’s most daring challenge at the moment is to make politicians in the National Congress awareof the menace that terrorism represents, as well as the importance of a budget increase for the armed forces,
intelligence agencies, national security and public safety institutions, by the executive branch of the Federal
Government, eliminating bureaucratic inertia.
Finally, to urge public prosecutors to work with law enforcement organizations, and that members of the
judiciary apply the rules of law against criminals to their full extent transforming jurisprudence so that it ismore rigorous against perpetrators, for judges are also of the utmost significance in implementing the legal
regime.

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COUNTRY REPORT: INDIA
D. K. Pathak*
I. TERRORISM DEFINED
Before we proceed on any deliberation on the subject it would be desirable to know what is terrorism. It
is believed that social scientists are yet to agree on a clear cut definition of terrorism. However, the so called
academic consensus definition written by A. P. Schmid and widely used by social scientists and within the
UN itself is Terrorism is an anxiety-inspiring method of repeated violent action, employed by (semi) clandestine
individuals, groups or state actors, for idiosyncratic, criminal or political reasons, whereby – in contrast toassassination – the direct targets of violence are not the main targets. The immediate human victims ofviolence are generally chosen randomly (targets of opportunity) or selectively (representative or symbolic
targets) from a target population, and serve as message generators. Threat and violence based
communication processes between terrorists (organisation), (imperilled) victims, and main targets are used
to manipulate the main target (audience(s)), turning it into a target of terror, a target of demands, or a targetof attention, depending on whether intimidation, coercion or propaganda is primarily sought.
In India section 15 of the Unlawful Activities (Prevention) Amendment Ordinance, 2004 defines terrorist
act as “whoever, with intent to threaten the unity, integrity, security or sovereignty of India or to strike
terror in the people or any section of the people in India or does any act by using bombs, dynamite or otherexplosive substances or inflammable substances or firearms or other substances (whether biological orotherwise) of a hazardous nature, in such a manner as to cause or likely to cause death of or injuries to any
person or persons or loss of or damage to or destruction of property or disruption of any supplies or services
essential to the life of the community in India or causes damage or destruction of any property or equipmentused or intended to be used for the defence of India, any State government or any of their agencies ordetains any person or threatens to kill or injure such person in order to compel the government of India or
any other person to do so or abstain from doing any act, commits a Terrorist act”.

II. TERRORISM IN INDIA
India has been among the major victims of terrorism – mostly cross border state sponsored Terrorism for over two decades. Despite the intolerably high cost in terms of human lives, people and material, India
has steadfastly pursued a counter strategy which gives primacy to dialogue, democratic political processes
and the rule of law.
Armed counter actions are based on the doctrine of “minimum use of force” within the framework of theconstitution which guarantees human rights. The magnitude of the problem of terrorism in India could begauged by the violence statistics as given in Appendix A.

III. INDIAN INITIATIVES
To deal with the problems of terrorism India has taken several initiatives at various levels.

A. At the International Level• India has been supportive of all efforts, particularly in the UN to combat terrorism and has played aleading role in shaping international opinion and urging the international community to prioritize thefight against terror. Its consistent and basic stand before the international community has been that•

There could be no justification for terrorism on any grounds: religious, political, ideological or any
other.

•

The fight against terrorism must be given the highest priority•

To be effective, the fight against terrorism has to be long term, comprehensive and sustained.

* Inspector General of Police (Law & Order) Assam Police Headquarters, India.

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Strengthening of international cooperation is vital to ensure that action is not restricted simply to theperpetrators but also encompassed states, which sponsor, support, or provide safe haven to
terrorists.

•

Ad hoc and selective actions have limited chances of success and compartmentalization of actions interms of regions, religions or organizations is bound to be counterproductive.

B. Multi-Lateral Arrangements and Agreements• It welcomed UN Security Council Resolution 1373 and is fully committed to implement it. It has
submitted its national report on measures taken to implement UN Security Council Resolution 1373
in December 2001 and also submitted a supplementary report on specific queries by the Counter
Terrorism Committee under the Security Council.
•

It is signatory to all the thirteen UN Sectoral Conventions on Terrorism. It has been supportive of all
measures within the UN General Assembly, the sixth Committee and the UN Security Council. It
has supported UN Security Council Resolution 1269 and 1368, which clearly identify terrorism as athreat to international peace and security. In addition, India has supported and fully implemented
Resolutions 1267, 1333 and 1363 relating to terrorism by the Taliban Regime in Afghanistan.

•

It has piloted the comprehensive Convention on International Terrorism (CCIT) in the UN with theobjective of providing a comprehensive legal framework to combat terrorism.

C. Regional Arrangements• At the regional level, India is a party to the SAARC Regional Convention on Suppression ofTerrorism 1987 and has enacted the enabling legislation in the form of the SAARC Conventions(Suppression of Terrorism Act) 1993.
•

The ASEAN Regional Forum (ARF) was set up in 1994 as a regional security dialogue platform with
ten ASEAN countries of which India is also a member.

D. Bilateral Arrangements
India has entered into three types of bilateral treaties to combat international terrorism•

Agreements to combat terrorism and organized crimes, drug related offences, etc. such agreements
are essentially framework agreements to facilitate the exchange of operational information anddevelopment of joint programmes to counter organized crimes and terrorism•

Extradition Treaties to facilitate transfer of fugitive offenders and suspected terrorists. Such treaties
have been signed with seventeen countries, signed but not exchanged with eight countries in
addition to extradition arrangements with eleven countries.

•

B i l a t e r a l T r e a t i e s o n M u t u a l L e g a l A s s i s t a n c e ( M L A T s ) in criminal matters to facilitate
investigation, collection of evidence, transport of witnesses, location and action against proceeds ofcrime, etc. Such MLATs have been signed with ten countries in addition to those signed but notexchanged with nine countries.

E. Mechanism of Interpol• In addition to the above, cooperation on matters relating to terrorism is also effected through themechanism of Interpol, of which India has been a member since 1946; there is an Indian member on
secondment to Interpol. The nodal point for coordination with Interpol at the central level is the CBI
IV. LEGAL REGIME IN INDIAIn keeping with the requirement of dealing with the menace of terrorism, India has put in place acomprehensive legal infrastructure. There are several pieces of legislation, of which some of them are listed
below(i)(ii)

54

The Unlawful Activities (Prevention) Act, 1967
The Armed Forces (Special) Powers Act, 1967

132ND INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS(iii) The National Security Act, 1980(iv) The Arms Act, 1959(v) The Explosives Act, 1884(vi) The Explosives Substance Act, 1908(vii) The Indian Penal Code, 1860(viii) The Code of Criminal Procedures, 1973(ix) The Anti-Hijacking Act, 1982(x) The Prevention of Money Laundering Act, 2002
It would be relevant to highlight some of the penal provisions of one or two pieces of legislation dealing
with the acts of terrorism.

A. The Unlawful Activities (Prevention) Act, 1967
This Act was enunciated by the Indian Parliament in 1967 to make powers available to the law
enforcement agencies for dealing with unlawful activities directed against the integrity and sovereignty ofIndia. It provides for effective prevention of certain unlawful activities of individuals and associations
including terrorist organizations. It extends to the whole of India.
Sec. 3 Sec. 16 Sec. 17 Sec. 18 Sec. 19 Sec. 33 Sec. 40 -Power of the Government of India to declare an association as unlawful.
(The list of the terrorist organizations banned under this Act is given under Appendix B)
Punishment for terrorist acts – death or imprisonment for life as the case may be andliable to a fine.
Punishment for raising funds for terrorist acts – imprisonment for life and also liable to afine.
Punishment for conspiracy – imprisonment from five years to imprisonment for life andliable to a fine.
Punishment for harbouring, etc. – imprisonment from 3 years to imprisonment for lifeand liable to a fine.
Forfeiture of property of certain persons during trial and conviction.
Offence of raising funds for a terrorist organization - imprisonment up to fourteen years
or with a fine or both.

B. The National Security Act, 1980
The Act came into force in 1980 with a view to providing power to the Central Government and State
Governments to make orders to detain certain persons including foreigners whose action may be prejudicial
to the defence of India, security of India, prejudicial to the maintenance of public order and maintenance of
supplies and services essential to the community.
Sec. 3 –(3) Detention period – in the first instance exceed three months but the State Government
may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend
such period from time to time by any period not exceeding three months at any one time.
Sec. 9 Constitution of Advisory Boards.
Sec. 11 Procedure of Advisory Boards.
Sec. 13 Maximum period of detention: 12 months.
C. Prevention of Money Laundering Act, 2002
Sec. 2 Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly isa party or is actually involved in any process or activity connected with the proceeds ofcrime and projecting it as untainted property shall he guilty of the offence of money
laundering.
Sec. 4 Punishment for money laundering.
Sec.5&8 - Deals with provisional attachment and confiscation.
Sec. 19 Power of arrest.
Sec. 24 Puts the burden of proof on the accused.
Sec. 45 Offences cognizable, non-bailable and limitation on granting bail.
Sec. 72 Provides for continuance of proceedings in the event of death or insolvency.
D. Armed Forces (Special) Powers Act, 1967
(Salient features – without replicating the wording in the Act)

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RESOURCE MATERIAL SERIES No.71

Sec. 3 Sec 4 -The whole or any part of the country/state can be declared as a disturbed area by thecentral government or the governor of the state* Special powers can be utilized by any commissioned officers, non-commissioned
officers, warrant officers or any other person of the equivalent rank
* Authorizes use of force, even causing death against any person who is acting incontravention of law or carrying weapons*Authorizes the destruction of any arms dumps, prepared or fortified positions fromwhich armed attacks are made or likely to be made* Authorizes arrest without warrant of any person who is suspected to have committed
or likely to commit any cognizable offence. May even use such force as necessary toeffect the arrest* Enter and search without warrant any premises suspected to be used for any illegal
purposes as defined under the Act* Arrested person to be handed over to the officer in charge of the nearest police station
with the least possible delay

The above provisions confer sweeping powers on the members of the armed forces and since they
are likely to be misused the Supreme Court of India has issued eleven commandments regulating theexercise of powers under this Act.

V. SUGGESTED MEASURES TO COMBAT TERRORISM
A. It must be understood fully that while anti-terrorism is a philosophical anti-thesis that emerges from apainstaking examination of the concept of terrorism as well as an attempt to understand and articulate
what constitutes terrorism, counter terrorism refers to the practices, tactics, and strategies thatgovernments, the military and other groups adopt in order to combat terrorism. A few of the strategies,
apart from the legal recourse, which may be adapted to combat insurgency are:
1. A clearly defined policy and no compromise with terrorism
2.

Dialogue with insurgents only within the ambit of the Constitution3.

Pro-active measures, including (if necessary) pre-emptive strikes on anti-terrorist camps and bases

4.

Strengthening of existing anti-terror laws

5.

Punitive action against sympathizers, beneficiaries of terrorism and funding sources

6.

Strengthening of mechanisms such as psychological warfare in order to combat terror. Suchmechanisms must be decidedly pro-active

7.

Creation of and the joining in anti-terror cooperative groups in the region such as Shanghai
Cooperation Organisation

8. Spearhead a global denouncement and alienation of states sponsoring or not acting against terror.
Non-distinction of terror perpetrated by religious groups
B. Talking of the legal regime to combat insurgency, a decision needs to be taken at all levels, including
under the UN mandate, as to the extent to which the personal liberties of citizens can be compromisedvis-à-vis the implementation of the various legal provisions already in vogue. Most of the time the war
on the legal count against the Ultras is lost because of extreme sensitivity of our system to the alleged
violation of personal liberties. A balance has to be arrived at between both aspects.
C. At the end, what is required is a will to win the war over terrorism backed up by strict enforcement ofexisting laws at the National and International level. Any system as it marches ahead reveals certain
lacunae and loopholes, which in the instant case affords the terrorists an advantage and ultimately ingetting away rather mildly. There should be parity in the norms to be adopted by different countries at
the international level when it comes to protecting the national interest.

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132ND INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

APPENDIX A
Violence Statistics (2001 -2005)• Total Number of Incidents
J&K
LWE
NE
Punjab
Total

16394
7290
6294
4
29982

• Attacks on Security Forces
J&K
LWE
NE
Punjab
Total

3439
830
1728
Nil
2879

• Total Persons Killed
J&K
LWE
NE
Punjab
Total

13404
2752
5387
5
21548

• Civilians Killed
J&K
LWE
NE
Punjab
Total

4253
1457
2345
5
8060

• Security Forces Killed
J&K
LWE
NE
Punjab
Total

2098
545
612
Nil
3255

• Terrorists Killed
J&K
LWE
NE
Punjab
Total

7053
750
2430
Nil
10233

57

RESOURCE MATERIAL SERIES No.71• Weapons Recovered
J&K
LWE
NE
Punjab
Total

9427
2765
2640
256
15088

Abbreviations used:
J&K
Jammu and Kashmir
LWE
Left Wing Extremism
NE
North Eastern States of India

Note:

58

The above statistics are not complete for 2005 and hence, they are only indicative.

132ND INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

APPENDIX BTERRORIST ORGANISATIONS BANNED IN INDIA
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.

Babbar Khalsa International
Khalistan Commando Force
Khalistan Zindabad Force
International Sikh Youth Federation
Lashkar – E – Taiba/Pasban- E- Ahle Hadis
Jaish-E-Mohammad
Harkat-Ul-Mujahideen/Harkat-Ul-Ansar/Harkat Ul-Jehad-E-IslamiHizb-Ul-Kujahideen
Al-Umar-Mujahideen
Jammu and Kashmir Islamik Front
United Liberation Front of Assam (ULFA)National Democratic Front of Bodoland (NDFB)
Peoples Liberation Army (PLA)
United National Liberation Front (UNLF)
Peoples Revolutionary Party of Kangleipak (PREPAK)
Kangleipak Communist Party (KCP)
Kanglei Yaol Kanba Lup (KYKL)
Manipur Peoples Liberation Front (MPLF)
All Tripura Tiger ForceNational Liberation Front of Tripura
Liberation Tigers of Tamil Elam (LTTE)
Students Islamic Movement of India
Deendar Anjuman
Communist Party of India (M-L)- Peoples War Group and all its formations and front organizations
Maoist Communist Centre (MCC) and all its formations and front organizations
AlbadrJamiat-Ul-Mujahideen
Al-qaida
Dukhtaran-E-Millat (DEM)
Tamil Nadu Liberation Army (TNLA)
Tamil National retrieval Troops (TNRT)
Akhil Bharat Nepali Ekta Samaj (ABNES)

59

RESOURCE MATERIAL SERIES No.71

APPENDIX CSUMMARY OF COUNTER-INSURGENCY OPERATIONS IN ASSAMFROM 1 JANUARY 2000 TO 2005 (UP TO 25 DECEMBER)

Year

2000

2001

2002

2003

2004

2005
(up to25. Dec)

TOTAL

60

Insurgent
Killed

328

308

322

276

135

75

1444

Insurgent
Captured

1535

912

715

1024

1080

784

6050

Arms/Ammn./ Cash
Recovered
Arms

371

Ammn.

5266

Rs.

17,70,256

Arms

410

Ammn.

6842

Rs.

4,36,664

Arms

365

Ammn.

6686

Rs.

9,07,138

Arms

456

Ammn.

20488

Rs.

11,21,184

Arms

349

Ammn.

9623

Rs.

8,92,494

Arms

196

Ammn.

6150

Rs.

10,92,544

Arms

2147

Ammn.

55055

Rs.

6219270

Security
Personnel
KilledCivilians
KilledNo. ofIncidents

Surrendered

80

412

643

1834

86

261

485

438

36

218

454

139

15

260

474

3067

25

202

349

1050

9

63

294

217

251

1416

2699

6745

VIETNAMESE LAW AND ASSESSMENT OF THE LEGAL SYSTEMIN VIETNAM IN COMPARISON TO THE UNITED NATIONSCONVENTION AGAINST TERRORISM
Le Thi Van Anh *I. GENERAL INTRODUCTION
Terrorism is a transnational organized action against the UN’s principles and purposes which are to
maintain international peace and security and settle international disputes by peaceful means. In recent
years, terrorism has increasingly become an urgent global issue. Beside the great loss of people andproperty, terrorist activities also cause a permanent alarmed and fearful state for the world community.
Therefore, preventing and suppressing terrorism is the common task of nations worldwide, of which the UN
plays the central role. With its roles and responsibilities, since its establishment, the UN and otherinternational organizations have issued 13 multilateral conventions and protocols related to the prevention
and suppression of terrorism in relation to different areas of international affairs.
Along with many other countries worldwide, the Government of Vietnam has been actively participatingin the fight against terrorism. This is shown in the persistent policies of the State and the Government infighting crime in general and terrorism in particular. Vietnam considers terrorism as indefensible andstrongly condemns and suppresses it, especially when this crime is used against ordinary people. Vietnam
has acceded to and fully implemented 8 of the 13 Universal Conventions/Protocols on combating terrorism.
Vietnam is actively considering the possibility of acceding to the remaining treaties. Vietnam has issued
many legislative regulations related to the prevention of terrorism. Additionally, new documents on
preventing international terrorism are being considered, amended and affixed in order to enhance theeffectiveness of terrorism prevention and suppression in Vietnam and to cooperate with other countries incombating international terrorism in the region and all over the world.
Presently, Vietnam has some legislative regulations related to preventing terrorism including theCommon law and the Procedural law. The most important ones are the Penal Code and Criminal Procedure
Code. The present Penal Code of Vietnam has articles related to preventing terrorism. These articles can bedivided into two kinds: the first one directly relates to terrorist acts and the second one refers to acts which
are not for the purpose of terrorist prevention but can be applied to examine penal liability of thosecommitting terrorist acts according to Vietnamese law and international conventions on terrorism
prevention.

II. VIETNAMESE LAW ON TERRORISM
A. Penal Code of the Socialist Republic of Vietnam
1. Crimes Directly Related to Terrorism are Defined in the Penal Code as Terrorism (Article 84) as follows:“1. Those who intend to oppose the people’s administration and infringe upon the life of officials public
employees or citizens shall be sentenced to between twelve and twenty years imprisonment, life
imprisonment or capital punishment.

2.

In the case of committing crimes by infringing upon physical freedom and/or health, the offenders
shall be sentenced to between five and fifteen years of imprisonment.

3.

In the case of committing crimes by threatening to infringe upon life or committing other acts ofmoral intimidation, the offenders shall be sentenced to between two and seven years of
imprisonment.

4.

Those who terrorise foreigners in order to cause difficulties to the international relations of theSocialist Republic of Vietnam shall also be penalized according to this Article.”Pursuant to the Penal Code of Vietnam, terrorism includes one of four following
acts:* Expert, Department for Criminal and Administrative Legislation, Ministry of Justice, Vietnam.

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RESOURCE MATERIAL SERIES No.71•

Infringing upon the life of officials, public employees or citizens;•

Infringing upon physical freedom and/or health of officials, public employees or citizens;•

Threatening to infringe upon life of officials, public employees or citizens;•

Intimidating the morale of officials, public employees or citizens.

Also, pursuant to paragraph 4 of this article, when the above acts are taken against foreigners in order tocause difficulties to the international relations of the Socialist Republic of Vietnam, offenders shall be
penalized according to this Article. However, the said-above acts are considered as terrorism pursuant to thePenal Code of Vietnam if they are taken with the aim of opposing the people’s administration or causing
difficulties to the international relations of the Socialist Republic of Vietnam. Therefore, if acts of murder,
inflicting injury, threatening to murder or inflicting injury or intimidating morale of Vietnamese officials,
citizens or foreigners are taken but not for the two above purposes, they do not commit the crime ofterrorism but other correlative crimes provided in the Penal Code such as murder (Art. 93), threatening tomurder (Art. 103), intentionally inflicting injury on or causing harm to the health of other persons (Art. 104),
illegal arrest, custody or detention of people (Art. 123). The Penal Code of Vietnam also has an article on
conducting bandit activities (Art. 83) with some similarities to terrorism in Article 84. It has acts of murderin order to oppose the people’s administration, but the difference is that these acts are taken by armed
groups in mountainous, marine and other difficult to access areas.
2. Crimes Which are Not for Terrorism Prevention Purposes but can be Applied to Examine the Penal
Liability of Those Who Commit Terrorism are Regulated in the Penal Code as Follows:(i)

Hijacking aircraft, ships (Art. 221). This crime relates to terrorism, especially to the current
situation when international terrorists hijack aircraft or ships to attack targets on land. The
content of this article is as follows:“1. Those who use force, threaten to use force or use other tricks to appropriate aircraft or ships
shall be sentenced to between seven and fifteen years of imprisonment.
2. Committing the crime in one of the following circumstances, the offenders shall be sentenced
to between twelve years and twenty years of imprisonment:a) In an organized manner;b) Using weapons or dangerous means;c) Inflicting injury on or causing harm to the health of other persons;d) Dangerous recidivism.
3. Committing the crime and causing human death or other particularly serious consequences,
the offenders shall be sentenced to twenty years of imprisonment, life imprisonment or capital
punishment.
4. The offenders may also be subject to probation or a residence ban for between one and five
years.”
Hence, if a person commits acts of using force, threatens to use force or uses other tricks to appropriate
aircraft or ships they are sconsidered as committing this crime, regardless of whether they appropriate
aircraft or ships for any purpose. If terrorists use the above tricks to appropriate aircraft and ships forterrorist purposes, they will be sentenced pursuant to this article, not to Article 84. Therefore, Article 221
can be applied to punish terrorists with strict penalties even though it is not called terrorism.
(ii)

62

Illegally manufacturing, stockpiling, transporting, using, trading in or appropriating military
weapons and/or technical means (Art. 230) and Illegally manufacturing, stockpiling, transporting,using, trading in or appropriating rudimentary weapons or support devices (Art. 233) are twocrimes related to arms control, military weapons and technical means. These crimes punish acts ofviolating the system of controlling military weapons, civil weapons and technical means which
terrorists often use to commit crimes in general and terrorist crime in particular. Vietnamese law
does not allow people to trade in weapons and does not allow normal people to use weapons. Thus,
all acts from illegal manufacturing, stockpiling, transporting, using, trading or appropriating
weapons are considered as crimes, pursuant to the Penal Code. In fact, people using weapons tocommit a certain crime (usually violent crimes such as murder, intentionally inflicting injury,

132ND INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

plundering property) shall be examined for penal liability for two crimes: the main crime and thecrime of illegally using weapons.
(iii)

Illegally manufacturing, stockpiling, transporting, using, trading or appropriating explosive
materials (Art. 232) and illegally producing, stockpiling, transporting, using or trading in
inflammables, toxins (Art. 238) are two crimes related to controlling explosive materials,
inflammables and toxins. These materials are controlled and used under strict procedures because
if terrorists seize them, they can threaten the community’s safety.

(iv)

Laundering money and/or property obtained through the commission of crime (Art. 251) is thecrime provided in order to prevent money laundering. Accordingly, those who, through financial
and/or banking operations or other transactions, legalize money, property obtained through thecommission of crime or use such money and/or property to conduct business activities and othereconomic activities are liable to between one and five years of imprisonment. If they commit thecrime in particular circumstances, the offenders are liable to between 8 to 15 years of
imprisonment.

Besides, the Penal Code also regulates some other crimes which can be applied to examined penal
liabilities of those committing acts of terrorism, such crimes as amending and/or using certificates andpapers issued by agencies and/or organizations (Art. 266); forging seals and/or documents of agencies and/ororganizations (Art. 267); and illegally leaving or entering the country (Art. 274). Apart from that, the Penal
Code of Vietnam also defines other cases such as the preparation for the commission of a crime, incomplete
commission of a crime and complicity. These can be applied to offenders who commit crimes in general andterrorist crime in particular.

B. The Penal Procedure Code of the Socialist Republic of Vietnam
The Penal Procedure Code (2003) has one part (Part 8) which regulates some matters of international
cooperation in criminal proceedings. This part has two chapters: chapter 36 regulates mutual legal
assistance and chapter 37 defines criminal extradition. This part provides provisions which are common
principles for international cooperation in criminal proceedings; for the implementation of mutual legal
assistance in criminal matters; for criminal extradition in order to examine penal liabilities or executejudgments; cases of denying extradition, exchanging criminal files, material evidence, property and money
related to the case.
III. ASSESSMENT ON THE COMPATIBILITY BETWEEN VIETNAMESE LAW AND
THE UNITED NATIONS CONVENTIONS AGAINST TERRORISM
A. International Treaties that Vietnam has Acceded
As said above, preventing terrorism is the central task of the United Nations. The purpose of thisorganization is to maintain international peace and security. Therefore, to fully implement its purpose, theUnited Nations may carry out activities in order to eliminate the risks threatening peace, prevent
invasion/war, enhance human rights and help develop economies.
In recent times, the United Nations has carried out many activities in order to confront threats ofterrorism. One of the remarkable achievements is issuing the system of international treaties related to theprevention and suppression of terrorism.
As with many other countries worldwide, Vietnam is actively preventing and suppressing terrorism.
Thus, Vietnam has acceded to 8 of 13 Universal conventions/protocols related to terrorism.
1. The United Nations Conventions that Vietnam has Acceded(i)Convention of Offences and Certain Other Acts Committed on Board Aircraft, 1963;(ii) The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970;(iii) Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971;(iv) Conventions on the Prevention and Punishment of Crimes against International Protected Persons
including Diplomatic Agents, 1973;(v) Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil
Aviation, Unlawful Acts against the Safety of Civil Aviation, 1988;

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RESOURCE MATERIAL SERIES No.71(vi) Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988.
(vii) Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on theContinental Shelf, 1988;(viii) International Convention for the Suppression of the Financing of Terrorism, 1999.
2. The United Nations Conventions/Protocols that Vietnam is Considering Acceding to(i)Convention on the Marking of Plastic Explosives for the Purpose of Detection, 1991;(ii) International Convention for the Suppression of Terrorist Bombings, 1997;(iii) International Convention against the Taking of Hostages, 1979;(iv) Convention on the Physical Protection of Nuclear Material, 1979;(v) Security Council Resolution 1373 (2001).
Thus it can be said that the Government of Vietnam is making great efforts in cooperation with the worldcommunity to combat international terrorism.

B. Assessment of the Legal System in Vietnam in Comparison with the UN Convention against Terrorism
1. The Definition of ‘Terrorism’
The world community has not had a common and acceptable definition of ‘terrorism’ even though great
efforts have been made to define this crime. However, the content of international legal documents refer to‘terrorism’ as a criminal act in order to cause a fearful state in the public, a group of people or certain people
for political purposes.
The current Penal Code of Vietnam does not have any articles which define ‘terrorism’ or ‘terrorist
crime’. However, according to Article 84 of the Penal Code (1984), terrorism is considered as the act of
infringing upon the life of other people; threatening to infringe on the life of other people or other acts ofmoral intimidation in order to oppose the people’s administration or to cause difficulties to the international
relations of Vietnam.
2. Obligations Regulated in International Documents of Preventing Terrorism
Each international treaty related to preventing terrorism has its own object and scope of adjustment.
However, the common purposes of these documents are preventing international terrorism and preserving
peace and security. Therefore, some common obligations that these international documents require ofStates Parties are as follows:(i) Making a list of organizations and individuals performing acts of terrorism
Relating to this obligation, it is possible to say that Vietnam has not discovered any group involved in
terrorist activities like Al-Qaeda or Taliban. However, this does not mean that Vietnam will never
have such kinds of organizations and organizations or individuals that indulge and financeinternational terrorist organizations in the future. Vietnamese law does not allow any person toestablish an organization with the aim of committing criminal acts. Although there is no article in the
Penal Code regulating the crime of establishing a criminal organization, but any member of thatorganization who commits crime will be prosecuted for their crimes with the aggravating
circumstance of it being an organized commission of a crime. Vietnam has been in cooperation with
the international community in making and supplementing lists of organizations and individuals
involved in acts of terrorism, preventing terrorists arriving and leaving Vietnam.
(ii) Criminalizing acts of terrorism and other acts related to terrorism
Normally, in order to implement international treaties, the States Parties need to incorporate theregulations of those conventions into their national law. Many international treaties related topreventing terrorism state that States Parties have obligations to criminalize acts of terrorism.
These are compulsory obligations that States Parties have no choice but to criminalize acts ofterrorism. The Penal Code of Vietnam was issued in 1999, two years before the terrorist attack on
September 11 in the USA. At that time, Vietnam’s law makers did not have in mind international andbrutal terrorist attacks. Thus, international terrorism is not regulated in the Penal Code. Article 84
regulates terrorism in order to defend national security but not to prevent international terrorism as
in related international legal documents. These international documents state that the purpose of
preventing terrorism is preserving not only one’s national security but also regional andinternational peace and security. As stated above, Article 84 only applies to acts of terrorism which
are against the people’s administration or cause difficulties to the international relations of the64132ND INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

Socialist Republic of Vietnam. Therefore, acts of collecting money, formulating plans, inciting,assisting by other means terrorists which are carried out in Vietnam but for terrorist targets in othercountries and are not directed against Vietnam or intended to cause difficulties for international
relations of Vietnam, have not been proceeded because Vietnam lacks the legal basis to examine
penal liabilities pursuant to Article 84. The penal liabilities examination in the above case is incontrast to the basic content of the Penal Code of Vietnam which is “a crime is an act dangerous to
the society prescribed in the Penal Code” (Art. 8). This principle is very close because the crime isregulated by the law and in the Penal Code, not in another legal document. Presently, the penal lawof Vietnam does not allow any correlative law principle to examine anyone.
As for criminalizing the act of financing for terrorism, the Penal Code of Vietnam does not have any
article regulating this crime. Those who finance for act of terrorism defined in Article 84 areprosecuted pursuant to this article as helpers (pursuant to Art. 20). However, they are only
prosecuted if there is enough evidence that the act constitutes terrorism as in Article 84 of the Penal
Code. Therefore, the act of financing international terrorism in other cases cannot be examinedaccording to the present provisions in the Penal Code of Vietnam.
Relating to the obligations of criminalizing act of laundering money, the present Penal Code ofVietnam has appended one article (Art. 251) which regulates the crime of legalizing money and/or
property obtained through the commission of crime. Accordingly, those who through financial and/or
banking operations or other transactions, legalize money and/or property obtained through thecommission of crime or use such money and/or property to conduct business activities or othereconomic activities shall be punished. At present, the Government of Vietnam has issued a Decreeon the prevention of laundering money in order to strictly control financial transactions through thebanking system and to report suspicious transactions to authorized agencies like the Police andInstitute of Procuracy. These are the basis for investigation and examination of acts of laundering
money pursuant to Article 251 in the Penal Code. The act of laundering money is an independentcrime, therefore, it can be applied to examine anyone, including terrorists, providing that the person
commits the crime described in Article 251 and money and/or property are obtained through thecommission of crimes regulated in the Penal Code of Vietnam.
Terrorists often use forged certificates, paper or passports when moving from one country toanother in order to avoid the control of authorized agencies. From that fact, international
Conventions require States Parties to have measures against forging public certificates and papers
and using them for terrorism purposes. To meet this demand, the Penal Code of Vietnam has threearticles that regulate this. They are Article 266 – amending and/or using certificates and papers
issued by agencies and/or organizations, Article 267 – forging seals and/or documents of agencies
and/or organizations and Article 268 – Appropriating, trading in, destroying seals and/or documents
issued by State agencies and/or social organizations. These articles prevent and restrain acts of using
forged certificates to trick authorized agencies. Thus, Vietnam now has legislative tools to prevent
acts related to forging State certificates. These can be applied to combat terrorism. Though, incomparison with related international conventions, these articles in Vietnam have one basic
difference relating to whether a person commits a crime or not. International conventions do not
require the users of forged certificates to commit a crime and to cause serious consequences.
Whereas, the Penal Code of Vietnam regulates those who commit crime when they use forgeddocuments, certificates to commit illegal acts, causing serious consequences or they have alreadybeen administratively sanctioned for such acts but continue to commit them. It is possible to say
that, international conventions are stricter than the Penal Code of Vietnam.
(iii) Establishing jurisdiction over terrorist offences
Relating to this matter, Vietnam’s current legal documents in general have met demands ofinternational conventions on the prevention of terrorism. The Penal Code of Vietnam regulates
jurisdiction to criminal acts in Article 5 and 6 of the Penal Code.
According to Article 5, all criminal offences committed in the territory of the Socialist Republic ofVietnam are subject to Vietnam’s jurisdiction. For foreigners who commit offences in the territory ofVietnam but are entitled to diplomatic immunity or consular immunities under Vietnamese laws,
international treaties which Vietnam has signed or acceded to or international practices, theircriminal liability shall be settled through diplomatic channels. Article 6 of the Penal Code regulatesVietnamese citizens who commit offences outside the territory of Vietnam and states they may be

65

RESOURCE MATERIAL SERIES No.71

examined for penal liability in Vietnam according to the Penal Code. This provision also applies tostateless persons who permanently reside in Vietnam. Foreigners who commit offences outside theterritory of Vietnam may be examined for penal liability according to the Penal Code of Vietnam in
circumstances provided for in the international treaties which Vietnam has signed or acceded to.
(iv) International cooperation in preventing terrorism
Terrorism is a transnational crime; therefore, no single nation can prevent terrorism effectively if it
does not have close cooperation with other states. Hence, international cooperation is important andhas been defined in relevant international terrorism prevention documents.
Defining the importance of international corporation in combating international crime in general andterrorism crime in particular, Part 8 of the Penal Procedure Code of Vietnam (Chapter 36 andChapter 37) regulates international cooperation in criminal proceedings. This part provides the basic
principles for international cooperation’s between Vietnam and foreign countries in criminal
proceedings. This is the legal basis for Vietnam’s competent authorities to carry out mutual legal
assistance in criminal issues, extradition of criminals and extradition of offenders to foreigncountries. Pursuant to the provisions in the Penal Procedure Code of Vietnam, mutual legal
assistance in criminal matters between Vietnam and other countries is implemented on the basis ofinternational conventions that Vietnam is a contracting party, on the principle of reciprocity andinternational practices. Therefore, the competent authorities of Vietnam can implement a request of
mutual legal assistance in criminal matters with states that Vietnam has not signed a convention on
the principle of reciprocity but in contravention of the laws of the Socialist Republic of Vietnam,
international laws and international practices. Relating to criminal extradition, Article 344 in the
Criminal Procedure Code does not allow extradition in some cases in which the extradited person isVietnamese, the person has been examined and sentenced pursuant to Vietnam’s law or the
extradition may lead to restrictions on that person due to reasons of nationality, ethnicity, race,
religion, social background or political viewpoints.
Also, at this moment, Vietnam has signed 14 bilateral treaties of mutual legal assistance of criminalcases, of which 13 treaties contain provisions of mutual legal assistance and criminal extradition.
Moreover, apart from 8 international conventions related to the prevention of terrorism, Vietnam has
signed the UN Convention for fighting against transnational organized criminals and the UN
Convention for fighting corruption, which have many provisions on mutual legal assistance andcriminal extradition.

IV. CONCLUSION
Vietnam is fully aware of the potential dangers and consequences of terrorism acts in all areas of life in allstates. In that spirit, Vietnam stresses that states need to maintain consistent positions on terrorism, inparticular “not supporting, harbouring and indulging terrorists or terrorist attempts against international
peace and security”. However, to combat terrorism effectively and thoroughly, Vietnam is making efforts
with the following activities:
•

•

•

66

First, amending and appending the Penal Code, in particular Article 84, with the intention ofwidening the scope of its application towards international terrorism in the spirit of international
conventions and protocols and Resolutions of the UN General Assembly and the Security Council.
Moreover, it is necessary to append to Vietnam’s Penal Code the crime of financing terrorism. This
will regulate those who finance or raise funds or property for terrorists. It also amends and appends
crimes of amending and/or using certificates and papers issued by agencies and/or organizations on
the direction that only using such certificates with the purpose of crime is enough to penalize, even
if it hasn’t led to any serious consequences.
Second, Vietnam is on the way to compiling a law on mutual legal assistance and shall issue a law orordinance on the extradition of criminals in the near future to have a basis in implementing
international obligations related to mutual legal assistance in criminal matters and criminal
extradition.
Third, Vietnam is actively concentrating great efforts to research the content and consider the
possibilities of acceding to the last four international conventions related to the prevention andsuppression of terrorism that Vietnam has not been a member.

COUNTRY REPORT: ZIMBABWE
Fortune Chimbaru*
I. INTRODUCTION
Zimbabwe is in the southern part of Africa. It is a former British Colony which gained its independence
on 18 April 1980 after a protracted war of liberation.

II. DEFINITION OF TERRORISM
The term terrorism has come to mean different things to different people over different times. Those
once called terrorists can easily be legitimized and may as is the situation in Zimbabwe be called liberation
fighters. The dictionary3 meaning of the word terrorism is “the use of violence for political aims or to force a
government to act”. International law, and in particular international humanitarian law, recognizes acts
committed in accordance with such international law during an armed struggle in the exercise or furtheranceof their legitimate right to national liberation, self determination by alien or foreign forces, as being excluded
from terrorist activities.
The 2002 Report of the UN Policy Working Group on the UN and Terrorism4 offers some guidance.

“Without attempting a comprehensive definition of terrorism, it would be useful to delineate some broad
characteristics of the phenomenon. Terrorism is, in most cases, essentially a political act. It is meant toinflict dramatic and deadly injury on civilians and to create an atmosphere of fear, generally for a politicalor ideological (whether secular or religious) purpose. Terrorism is a criminal act, but it is more thanmere criminality. To overcome the problem of terrorism it is necessary to understand its political nature
as well as its basic criminality and psychology.”
In Zimbabwe what constitutes terrorism is defined mainly in the Public Order and Security Act [Chapter
11:17] as follows:(1) Any person, who for the purpose of:(a) causing or furthering an insurrection in Zimbabwe; or(b) causing forcible resistance to the Government or the defence forces or any law enforcement
agency; or
procuring by force the alteration of any law or policy of the government;
commits any act accompanied by the use or threatened use of weaponry with the intention or realizingthat there is a risk or possibility of:i)
ii)
iii)
iv)
v)

killing or injuring any other person; ordamaging or destroying any property; or
inflicting financial loss upon any other person; orobstructing or endangering the free movement in Zimbabwe of any traffic on land or water or in air;or
disrupting or interfering with an essential service.

Since the attacks on the United States on 11 September 2001, terrorism has become the new global
enemy to be eradicated no matter the cost to domestic civil liberties. Though much of the world now stands
united against terrorism and catching the perpetrators of terrorist acts, the task of defining terrorism still
successfully evades us.

* Principal Law Officer, Attorney General’s Office, Zimbabwe.
1 Oxford Advanced Learners Dictionary 5th Edition.
2 2002 Report of the UN Policy Working Group on the UN and Terrorism.
http://www.un.org/terrorism/957273.htm.

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III. ACCESSION BY ZIMBABWE TO THE UNIVERSAL CONVENTIONS ON TERRORISM
This paper attempts to provide an overview of the range of anti-terrorism measures taken by Zimbabwe
and the aims and scope of such legislation. Realizing the need for every country to be equipped with aneffective legal regime for anti-terrorism the Republic of Zimbabwe has always made efforts to adopt
measures to prevent and combat terrorism and related activities. The Government of the Republic of
Zimbabwe has committed itself in International fora, such as the United Nations and the African Union, tothe prevention and combating of terrorists and related activities. Whereas the United Nations Security
Council Resolution 1373/2001 which is binding on all Member States of the United Nations as well as theConvention for the Prevention and Combating of Terrorism adopted by the Organisation of African Unity
requires Member States to become party to instruments dealing with terrorist and related activities as soon
as possible, Zimbabwe has already become party to the following instruments of the United Nations:a)

The Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed in Tokyo
on 14 September 1963. The Republic of Zimbabwe became a party thereto by ratification on the 8
March 1989.

b)

The Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16
December 1970. The Republic became a party thereto by ratification on the 16 February 1989.

c)

The Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation concluded
at Montreal on 23 September 1971. The Republic became a party thereto by ratification on the 16
February 1989.

The Republic is also a signatory to the International Convention for the Suppression of the Financing ofTerrorism adopted by the United Nations General Assembly on the 9 December 1999 but has not yet ratified
it. The Republic has also become a party by ratification to the Convention on the Prevention and Combatingof Terrorism adopted by the Organisation of African Unity at Algiers on 14 July 1999. In 1992 Zimbabwe
signed and ratified the Organisation of African Unity Convention for the Elimination of Mercenarism inAfrica.
However Zimbabwe is yet to become a party to the following remaining Instruments of the United
Nations:

68

a)

The Convention on the Prevention and Punishment of Crimes against Internationally Protected
Persons (1973)b)International Convention against the Taking of Hostages (Hostages Convention; 1979)c)

Convention on the Physical Protection of Nuclear Material (Nuclear Materials Convention; 1980)d)Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil
Aviation, Supplementary to the Convention for the Suppression of Unlawful Acts against the Safetyof Civil Aviation (1988)e)Convention for the Suppression of Unlawful Acts against the Safety of Marine Navigation (1988)

f)

Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms located on theContinental Shelf (1988)g)

Convention on the Marking of Plastic Explosives for the Purpose of Detection (1991)h)International Convention of the Suppression of Terrorist Bombing (1999)i)International Convention for the Suppression of the Financing of Terrorism.

132ND INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

IV. EXISTING DOMESTIC LAWS TO COMBAT TERRORISM
The legislation that assists in combating terrorism in Zimbabwe:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)

The Public Order and Security Act [Chapter 17] (P.O.S.A)
Foreign Subversive Organisation Act [Chapter 11:05]
Extradition Act [Chapter 9:08]
Criminal Matters (Mutual Assistance) Act [Chapter 9:06]
Bank Use Promotion and Suppression of Money Laundering Act [Chapter 24:24]
Aircraft Offences Act
Civil Aviation Act.

The main piece of legislation that deals with terrorism is the Public Order and Security Act (P.O.S.A).
Sections 6 – 13 of the Act criminalize various acts of terrorism and related activities such as:(i)

Recruiting or training insurgents, bandits, saboteurs or terrorists inside or outside Zimbabwe inorder to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe.

(ii)

Providing training to any person inside or outside Zimbabwe in order to commit any act of
insurgency banditry, sabotage or terrorism in Zimbabwe.

(iii)

Training as an insurgent, bandit, saboteur or terrorist inside or outside Zimbabwe for purposes ofcommitting any act of insurgency, banditry, sabotage or terrorism in Zimbabwe.

(iv)

Supplying weaponry to insurgents, bandits, saboteurs or terrorists whether inside or outside
Zimbabwe knowing that the person to whom such weaponry is supplied is an insurgent, bandit,
saboteur or terrorist or realizing that there is a risk or possibility that such person is an insurgent,bandit, saboteur or terrorist.

(v)

Possessing weaponry for insurgency, banditry, sabotage or terrorism.

(vi)

Harbouring, concealing or failing to report insurgents, bandits, saboteurs or terrorists within areasonably practicable time after becoming aware of the presence in Zimbabwe of the insurgent
bandit saboteur or terrorist and in any event within seventy two (72) hours of becoming so aware.

The main thrust of the Public Order and Security Act is to combat acts of terrorism within Zimbabwe andto make provision for the maintenance of public order and security in Zimbabwe.
The Foreign Subversive Organisation Act [Chapter 11:05] makes provisions for the punishment of certain
acts hostile to other states or territories as follows:

Any person who organizes or sets up or helps to organize or set up, or advocates, urges or suggests
the organization or setting up of any group or body with a view to that group or body:a)overthrowing or taking over the government of any state by unlawful means or usurping thefunctions of such government; orb) conducting a campaign or assisting any campaign against the lawfully established government of
any state with a view of securing any of the objects or purposes described above –shall be guilty of an offence and liable to imprisonment for a period not exceeding five years.

V. CRIMINAL MATTERS (MUTUAL ASSISTANCE) ACT [CHAPTER 9:06]
To provide mutual assistance in criminal matters between Zimbabwe and Commonwealth countries andother foreign countries, to facilitate the provision and obtaining by Zimbabwe of such assistance, and toprovide for matters connected therewith or incidental thereto. In terms of the Act, mutual assistance incriminal matters include:a)b)

the obtaining of evidence, documents or other articles;
the provision of documents and other records;

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RESOURCE MATERIAL SERIES No.71

c)
d)
e)
f)
g)
h)
i)
j)

the location and identification of witnesses or suspects;
the execution of requests for search and seizure;the making of arrangements for persons to give evidence or assist in investigations;the forfeiture or confiscation of property in respect of offences;
the recovery of pecuniary penalties in respect of offences;
the interdicting of dealings in property or the freezing of assets that may be forfeited or confiscatedor that may be needed to satisfy pecuniary penalties imposed in respect of offences;the location of property that may be forfeited or that may be needed to satisfy pecuniary penalties
imposed, in respect of offences; andthe service of documents.

Assistance may be refused where:
a)
b)
c)
d)

offence in question is not an offence in Zimbabwe;
where the person could no longer be prosecuted in terms of Zimbabwe law due to lapse of time or
any other reason;
the provision of assistance could prejudice an investigation in Zimbabwe; andassistance would impose an excessive burden on the resources of Zimbabwe.

The Bank Use Promotion and Suppression of Money Laundering Act [Chapter 24:24] is to promote theuse and suppress the abuse of the banking system, to enable the unlawful proceeds of all serious crimes
including drug trafficking to be identified, traced, frozen, seized and eventually confiscated; to establish aBank Use Promotion and Suppression of Money Laundering Unit to require financial institutions and cash
dealers to take prudential measures to help combat money laundering and to provide for matters connectedwith or incidental to the foregoing.

VI. EXTRADITION ACTThe Extradition Act provides for the extradition of persons between Zimbabwe and other countries andfor matters incidental to or concerned with extradition.
In terms of the said Act the Minister of Home Affairs may enter into an agreement with the governmentof any foreign country providing, whether on a basis of reciprocity or otherwise, but subject to this Act andto the obligations of Zimbabwe in terms of any international convention, treaty or agreement for:(a) the extradition of persons accused or convicted of any offence within Zimbabwe or that foreigncountry; and(b) the transit through Zimbabwe of persons who are being extradited to or from any foreign country;
and(c) any matter which in the opinion of the Minister is incidental to the matters referred to above.
An extradition agreement may relate to:(a) any offence whatsoever, whether or not they are offences in both Zimbabwe and the foreign country
concerned and whether they were committed before, on or after the date of commencement of theextradition agreement; and(b) any person whomsoever, whether or not they are nationals of both Zimbabwe and the foreign country
concerned.
The Aircraft Offences Act provides for the suppression and punishment of certain offences in relation tocertain aircraft and provides for matters incidental to or connected with the foregoing. The Act has extraterritorial operation.
In terms of the Act:(i) any person who without lawful excuse takes or exercises control of an aircraft shall be guilty of an70

132ND INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

offence and liable to imprisonment for a period not exceeding seven years;(ii) any person who, without lawful excuse, takes or exercises control of an aircraft while any person
other than his accomplices is on board shall be guilty of an offence and liable to imprisonment for aperiod not exceeding fourteen years;(iii) any person who without lawful excuse takes or exercises control of an aircraft by force or violence orby threat thereof, while another person not his accomplice is on board shall be guilty of an offence
and liable to imprisonment for a period not exceeding twenty years; and(iv) any person who without lawful excuse takes or exercises control of an aircraft and at anytime before
or during the taking or exercising control of that aircraft does or omits to do any act or thing withintent to kill any person, shall be guilty of an offence and liable to imprisonment for life.
Damaging, destroying or prejudicing the safe operation of an aircraft is also criminalized under the said
Act and carries a maximum penalty of life imprisonment. Assaulting, intimidating or threatening a person on
an aircraft is equally criminalized in terms of this Act and has a maximum penalty of fourteen years. The
carrying of dangerous goods on aircraft is also criminalized and has a maximum prison penalty of sevenyears. Equally criminalized is the threatening damage or destruction of an aircraft without lawful excuse andthe making of false statements, in relation to an aircraft from which it could be reasonably inferred that there
has been or is to be a plan, proposal, attempt, conspiracy or threat to unlawfully take control, destroy,
damage or kill any person on an aircraft.
The Civil Aviation Act enables effect to be given to the International Convention on Civil Aviation and to
make provision for control, regulation and orderly development of aviation within Zimbabwe. In terms of thisAct the Minister of Transport and Energy can make regulations relating to any matters including securing
the safety, efficiency and regularity of air navigation and the safety of aircraft and persons and property
carried therein.

VII. TERRORISM AND RELATED CRIMES IN ZIMBABWE
Whilst Zimbabwe has laws that deal with terrorism at the domestic level, there are none to deal withinternational terrorism. In 1983 the country had to deal with a case involving some South African agents
who came to Zimbabwe with the sole intention of killing members of the military wing of the African
National Congress who were residing in Zimbabwe. The killing was to be by means of a bomb or otherexplosive devises. They had no intention of sabotaging or injuring Zimbabwe, what they perpetrated wereacts of terrorism on Zimbabwean soil with the intention of eliminating members of the A.N.C. who had beenoffered sanctuary in Zimbabwe, which resulted in the death of a Zimbabwean.
The three namely Kevin Woods, Phillip Conjwayo and Michael A. Smith were charged with murder andsentenced to death. Murder was the only charge that could apply to them as the country did not haveprovision for dealing with terrorism which is not specifically targeted against Zimbabwe.
The legal system of Zimbabwe was also recently found wanting by the events of the 7 March 2004 when a
Boeing 727-100 aircraft with a total of sixty seven persons, landed at Harare International Airport. The flightcrew consisted of three persons, the pilot Jaap Neil Steyl, his co-pilot Hamman and a flight engineer
Kenneth Fred Pain. There were sixty four other passengers on board this aircraft. The aircraft was supposed
to refuel and take on board, by prior arrangement, a consignment of arms and ammunition. The finaldestination was Equatorial Guinea where they intended to forcefully remove the lawful government of thatcountry. Their leader Simon Mann had been contracted by Severo Moto, an exiled opposition political leaderof the Equatorial Guinea, to assist him in toppling the President of that country by a violent coup-detat.
When the crew contacted the control tower at the Harare International Airport seeking permission toland, they misrepresented to the controller that there were only three crew members on board. However,when the plane reached Manyame intending to collect arms and ammunition which had been purchased by
Simon Mann, it was discovered after a search that apart from the crew members there were sixty four otherpassengers aboard the aircraft. The passengers had been given specific instructions to switch off the lightsof the aircraft upon landing, remain still to avoid detection and not to allow anyone to leave or enter the71

RESOURCE MATERIAL SERIES No.71

aircraft. A document detailing the action plan authored by Simon Mann was recovered from the aircraft. Also
recovered from the aircraft was an assortment of material.
Although it was apparent that these were mercenaries out to carry out terrorist activities due to the gap
in our law they got away with very minor charges under the Immigration Act. The allegations were that they
unlawfully and fraudulently made a false representation by conduct, statement or otherwise for the purposeof facilitating or assisting the entry or departure from Zimbabwe of themselves or some other persons that is
to say the persons told the Aviation Authorities at Harare International Airport that a Boeing 727-100
aircraft registration number N4610 had on board only three crew members and no other passengers. Had it
not been for the declaration that there were only three crew members on board - the aircraft would not havebeen allowed to land at Manyame Air Base and thereby enter Zimbabwe.
At the trial it was not in dispute that the mercenaries did not intend to disembark in Zimbabwe as their
final destination. They were in transit to another country.
The two pilots were each sentenced to sixteen months imprisonment and the rest of the members to
twelve months imprisonment each. On appeal to the High Court they each had four months of theirsentences suspended for five years on condition of good conduct. The Attorney-General appealed to theSupreme Court of Zimbabwe against the suspension and all of them finally served the original sentences.
The terrorist leader Simon Francis Mann was also charged with one count of contravening section 4(2)(b)of the Firearms Act [Chapter 10:09] (Attempting to purchase weapons without a certificate) and one count ofcontravening section 13(1)(e) of The Public Order and Security Act [Chapter 11:17] as read with section
360(2)(a) of The Criminal Procedure and Evidence Act [Chapter 9:07] that is for attempting to possess
dangerous weapons. He was sentenced to a total of four years imprisonment and is still serving and yet to be
extradited to Equatorial Guinea where he is likely to face other charges.
This case exposed the weaknesses of Zimbabwe’s legal system in combating terrorism. Having realizedthat the phenomenon of terrorism that is waged on an international scale is not adequately addressed by our
existing laws, the legislature is currently working on a law to provide for the suppression of foreign andinternational terrorism including mercenary activity. Currently it is still a bill titled the Suppression of
Foreign and International Terrorism Bill.
The Bill is not yet law, it is yet to be tabled in Parliament. The Bill specifically provides for the
suppression of foreign and international terrorism including mercenary activities and to provide for mattersconnected therewith or incidental thereto. If passed into law the Bill would repeal the Foreign Subversive
Organisation Act [Chapter 11:05]. In terms of the Bill, the Minister of Home Affairs may make a regulation
implementing measures adopted by the United Nations Security Council for the suppression of Foreign orInternal terrorism.
This thus shows that the Republic realized that it is necessary to make a provision in the domestic law of
Zimbabwe to combat terrorism and is making an effort to conform to the Universal Conventions andProtocols and thus avoid the country becoming a safe haven for terrorists.

VIII. PROBLEMS AND CHALLENGESThe United Nations Security Council from time to time passes resolutions under Chapter VII of theUntied Nations Charter, requiring Member States to combat terrorist and related activities, including taking
effective measures to prevent and combat the financing of terrorist and related activities and freezing offunds, assets or economic resources of persons who commit terrorist and related activities. Our nationallaws do not meet all the international requirements relating to the prevention and combating of terrorist andrelated activities.
The definition of terrorism, as it exists in Zimbabwean law, is limited only to acts affecting only
Zimbabwe. The definition needs to be extended to include acts of terrorism even those not specificallytargeting Zimbabwe. It should be expanded to cover acts which may seriously damage a country or aninternational organization.

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The courts should have extra-territorial jurisdiction to try any terrorist offence and impose the penalties
where the acts have been done or completed outside Zimbabwe. Necessary steps need be taken to bring thenational system into conformity with the Universal Conventions and Protocols.
The prohibition of acts of terrorism need to be expanded to include any person who:a)does or threatens to do or does an act preparatory to or in furtherance of an act of terrorism; orb)omits to do anything that is reasonably necessary to prevent an act of terrorism.

The acts of terrorism ought not to be limited to acts only targeting the Republic of Zimbabwe. Terrorism
should mean an act which:(a) may seriously damage a country or an international organization; and(b) is intended or can reasonably be regarded as having been intended to:i)ii)

seriously intimidate a population;
unduly compel a government or an international organisation to perform or abstain fromperforming any act;iii) seriously destabilize or destroy the fundamental political, constitutional, economic or social
structures of a country or an international organization; oriv) otherwise influence such government or international organization.
Training, supporting, harbouring and obstructing a terrorist investigation and withholding of any
information on terrorist activities should be criminalized.
There is need for the country to enact appropriate domestic legislation necessary to implement theprovisions of relevant international instruments dealing with terrorist and related activities to ensure thatthe jurisdiction of the courts of the Republic of Zimbabwe enables them to bring to trial perpetrators ofterrorist and related activities and to cooperate with and provide support and assistance to other states andrelevant international and regional organization to that end.
The Republic is committed to bringing to justice persons who commit such terrorist and related activities
and to carrying out its obligations in terms of the international instruments dealing with terrorist and related
activities.
The major challenge for the country is for it to accede to the thirteen Universal Conventions andProtocols. It so far has only ratified three of the thirteen conventions and is only a signatory to theInternational Convention for the Suppression of the Financing of Terrorism (1999).
Our courts do not have extra-territorial jurisdiction to try any terrorist offence and impose the penalties
where the acts have been done or completed outside Zimbabwe. Necessary steps need to be taken to bringabout a national system for combating terrorist financing and to effectively implement these measures, forexample there is need to adopt the Financial Action Task Force (FATF) Recommendations. These
Recommendations contain a set of measures aimed at combating the funding of terrorist acts and terrorist
organizations. They have been recognized by the International Monetary Fund and the World Bank as theInternational Standards for combating money laundering and financing of terrorism. Countries should ensurethat financial institution secrecy laws do not inhibit implementation of the FATF recommendations.
In Zimbabwe, the Bank Use Promotion and Suppression of Money Laundering Act [Chapter 24:23] whichcame into effect in 2004 was designed along the FATF recommendations in regard to customer due diligenceand keeping of records. The designated financial institutions are also required to report suspicioustransactions.
In terms of the said Act, the banks are required to take the following measures:i)

Identify the customer and verify that customer’s identity using reliable, independent source

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documents, data or information.
ii)

Identify the beneficial owner and take reasonable measures to verify the identity of the beneficial
owner such that the financial institution is satisfied that it knows who the beneficial owner is. For
legal persons and arrangements this should include financial institutions taking reasonable measuresto understand the ownership and control structure of the customer.

iii) Obtain information on the purpose and intended nature of the business relationship.
iv) Conduct ongoing due diligence on the business relationship and scrutiny of transactions undertaken
through the course of that relationship to ensure that the transactions being conducted areconsistent with the institution’s knowledge of the customer, their business and risk profile including,where necessary, the source of funds.
However, the said Act only relates to money laundering and other serious crimes. It does not specificallymention terrorism and related activities. Zimbabwe is only a signatory to the International Convention for
the Suppression of the Financing of Terrorism, 1999; it is yet to ratify it. A key element in the fight against
financing of terrorism is the need for countries’ systems to be monitored and evaluated, with respect to theinternational standards.
There is a need for the country to rapidly, constructively and effectively provide the widest possible
range of mutual legal assistance in relation to terrorist financing investigations, prosecutions and related
proceedings.
In line with the UN Security Council resolution 1373 adopted on 28 September 2001, Zimbabwe hastaken necessary steps to prevent the commission of terrorist acts including suppressing the recruitment ofmembers of terrorist groups, preventing those who finance, plan, facilitate or commit terrorist acts fromusing its territory, preventing the movement of terrorists and measures to prevent counterfeiting, forgery or
fraudulent use of identity papers and travel documents. Having realized the lacuna in our law Zimbabwe has
promulgated a bill to cover terrorism on an international scale namely: ‘Suppression of Foreign andInternational Terrorism Bill 2004’. The Bill is to provide for the suppression of foreign and international
terrorism, including mercenary activity. When this Bill becomes law it will criminalize:
1.

Engaging or participating in foreign or international terrorist activity.

2.

Training as a foreign or international terrorist.

3.

Recruiting or training foreign or international terrorists.

4.

Possessing weaponry for the purposes of foreign or international terrorist activity.

5.

Harbouring, concealing or failing to report foreign or international terrorists.

6.

Promoting, directing or belonging to foreign or international terrorist organizations.

7.

Soliciting support for foreign or international terrorist organizations.

8.

Supplying weaponry to foreign or international terrorists or terrorist organizations.

9.

Materially assisting foreign or international terrorists or terrorist organizations.

In terms of the Bill, all sections criminalizing terrorist activities shall have extra territorial operation.
The Bill is yet to be passed by Parliament into law. All things being equal it should sail through Parliament in
the first quarter of 2006.
The Zimbabwean law development committee has finished working on a Criminal Law Code which willcodify all the common law offences in the country. It is meant to consolidate and amend the criminal law of74

132ND INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

Zimbabwe and various other Acts.
This Code also has Provisions relating to terrorism but as in the P.O.S.A they are limited to terrorist acts
targeting Zimbabwe only, not on an international level. This code is also likely to become operative before
the middle of 2006.
Efforts have always been made to bring our laws in line with international requirements. The main
problem has been lack of skilled personnel in the field of drafting and that being a third world economy
which is currently undergoing economic challenges, the financing of such technical training has not beeneasy. There is a need for legislative assistance to the country which would enable it to become party to andimplement the universal anti-terrorism conventions and protocols as well as to implement Security Council
Resolutions. Zimbabwe is a landlocked country, this could probably be one reason why it has not yet become
party to the conventions relating to Marine Navigation and Fixed Platforms on the Continental shelf.
Secondly since the country is in a generally peaceful part of Africa it has not faced any serious threat ofterrorism hence Government efforts were focused elsewhere.

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REPORTS OF THE SEMINARGROUP 1STRENGTHENING THE LEGAL REGIME, IN PARTICULAR, THE ISSUES OFCRIMINALIZATION AND INTERNATIONAL COOPERATION
Chairperson
Co-Chairpersons
Rapporteur
Co-Rapporteur
Members

Advisers

Mr. Laercio Rossetto
Mr. Harishchandra Dhungana
Mr. Kazuo Sasaki
Ms. Fortune Chimbaru
Mr. Ryuji Kuwayama
Mr. Souphy Norintha
Mr. Jirawoot Techapun
Ms. Le Thi Van Anh(Brazil)(Nepal)(Japan)(Zimbabwe)(Japan)(Laos)(Thailand)(Vietnam)

Deputy Director Keisuke Senta
Prof. Kayo Ishihara
Prof. Iichiro Sakata
Prof. Tae Sugiyama(UNAFEI)(UNAFEI)(UNAFEI)(UNAFEI)

I. INTRODUCTION
Group 1 started discussion on 18 January 2006 and selected the board members as listed above. Then theGroup adopted the agenda as follows:

A. Criminalization
1. Importance of criminalizing acts required by the 11 Universal Conventions and analysis of theexisting domestic laws in its coverage(i) Offences related to civil aviation(ii) Offences related to vessels and fixed platforms(iii) Offences related to the status of victims(iv) Offences related to dangerous materials(v) Offences related to the financing of terrorism(vi) Offences of attempt and participation
2. Legal and non-legal obstacles to the criminalization of such acts and their possible solutions
3. Availability of exceptions and defences or immunities to prosecution for these offences and theirconformity to the Conventions
4. Legal and non-legal obstacles to establishing territorial and extraterritorial jurisdiction over theseoffences as required by the Conventions, and their possible solutions
5. Legal and non-legal obstacles to making these offences punishable by appropriate penalties taking
into account their grave nature and their possible solutions
B. Mutual Assistance and Extradition
1. Legal and non-legal obstacles to the provision of mutual assistance and extradition of terrorism
offenders and their possible solutions
2. Legal and non-legal obstacles to the provision of mutual assistance and extradition where the offence
is committed by political motivation and their possible solutions
3. Legal and non-legal obstacles to the compliance to the obligation to extradite or prosecute (“autdedere aut judicare”)
II. SUMMARY OF DISCUSSION
Regarding the status of ratification, acceptance, approval and accession of the 13 universal counterterrorism Conventions/Protocols, we found the number of Conventions/Protocols to which the countries are
Parties varies from country to country. Japan is a Party to 12 Conventions/Protocols. The only one still to be
ratified is the International Convention for the Suppression of Acts of Nuclear Terrorism, which has been
open for signature since 14 September 2005. Some countries such as Brazil and Vietnam are Parties toalmost all. Some countries such as Laos, Nepal and Thailand are Parties to several of the 13 Conventions/Protocols. Zimbabwe is a Party to only three of them (Convention on Offences and Certain Other Acts

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Committed on Board Aircraft (Tokyo Convention), Convention for the Suppression of Unlawful Seizure of
Aircraft (The Hague Convention 1970) and Convention for the Suppression of Unlawful Acts Against the
Safety of Civil Aviation (Montreal Convention)). However, Zimbabwe has already criminalized most terrorist
offences.
Being a party to the universal Conventions/Protocols against terrorism is one of the most important
steps to criminalize terrorist activities or attacks against a country’s legal democratic state, rule of law,sovereignty, social values, and to life itself.

A. Criminalization
1. Importance of Criminalizing Acts Required by the 11 Universal Conventions and Analysis of the Existing
Domestic Laws in its Coverage
The discussion was focused on 11 out of the 13 universal terrorism-related Conventions/Protocols. The
other two (Convention on Offences and Certain Other Acts Committed on Board Aircraft and theConvention on the Marking of Plastic Explosives for the Purpose of Detection) do not necessarily require
the criminalization of defined acts.
It is important to criminalize acts required by the 11 universal Conventions/Protocols even for suchcountries which have never been exposed to the threat of terrorism, since they may not be free fromterrorist attacks in the future, and their nationals may commit terrorism offences against other countries.
Also, taking into consideration such terrorism threats with global effects, no country is allowed to be
indifferent to the criminalization of acts required by the Convention/Protocols. In case such acts are notcriminalized by one country, it will be an obstacle to extradition and mutual legal assistance requested byother countries victimized by terrorists. Such situation will let terrorists go unpunished, and is of course,
against Conventions/Protocols’ requirements on international cooperation, and is not acceptable as it may
lead to turning such countries into a safe haven for terrorists.
2. Legal and Non-Legal Obstacles to the Criminalization of Such Acts and their Possible Solutions
Most of the participating countries have already criminalized all the terrorism acts as required by theConventions/Protocols, although most of them have not become a Party to some of these
Conventions/Protocols. Some countries have been, however, behind in domestic legislation. Some still needto amend their existing laws even where the Conventions/Protocols are ratified/acceded. One member
stated that hijacking is not directly covered by any of the offences under the laws in the member’s country.
Most of the countries have not criminalized the financing of terrorism. However, Japan has a special law
criminalizing the financing of terrorism. Laos is now working on a draft which addresses the offences of thefinancing of terrorism. In Brazil, the law on money laundering can be applied to acts of financing ofterrorism.
It was also suggested that in the process of criminalizing terrorist offences in domestic laws, bothtechnical and financial support, including training for legal draftsmen, should be available to the countries
that had problems in doing so.
A few members stated that although such acts were covered as “terrorism” offences by their countries’
criminal laws, the definition of the offences is unclear. An observation was made that this could lead to amisuse, by applying it to thwart opposition parties, and be an infringement of basic human rights. Moreover,such lack of clarity could contribute to the situation that the same act is considered to be a terrorism offence
in one country, but not in another.
It was pointed out that partly due to the geographical position and the current terrorism situation in somecountries there was a lack of political will to be party to and implement the Conventions/Protocols. For
instance, a land-locked country has little to no interest in becoming a Party to and implementing maritime
agreements, namely the Convention for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation and Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Locatedon the Continental Shelf. And some countries which have never been exposed to the threat of terrorist
attacks have little interest in doing so.

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However, a national of a land-locked country may commit a terrorism offence over which that country
must establish its jurisdiction. Furthermore, failing to meet the requirement of dual criminality could be an
obstacle to international cooperation in terms of extradition or mutual legal assistance. Regarding thecountries not exposed to terrorist attacks, no country will be guaranteed to be free from terrorist attacks
forever, and they might face the same problems as identified above.
We agreed that we shall accelerate ratifying/accepting/approving/acceding to and implementing theConventions/Protocols by inspiring political will and raising public awareness through such discussions, andhave legislation regarding necessary provisions.
A few members stated that a terrorism act is punishable only if committed against their own states. The
group agreed that this presents a huge gap in the law, not in conformity with the requirements of theConventions/Protocols, and that a swift amendment to the criminal law would be desirable.
One member pointed out that the process of ratification, etc. and the enactment of implementing
legislation is too long, as it is a game of politicians who would not give priority to the implementation, andthe amendment of the Constitution would be required in order to solve the problem.
3. Availability of Exceptions and Defences or Immunities to Prosecution for these Offences and their
Conformity to the Convention
We agreed that countries should give political asylum when needed. However, if it is related to any
terrorist activities, such an asylum seeker should not be accepted. We did not find any exceptions anddefences or immunities to prosecution for terrorism offences.
Any reference to an exception based on political grounds was omitted from recent
Conventions/Protocols. In particular, it should be noted that the International Convention for the
Suppression of Terrorist Bombings (Article 5), International Convention for the Suppression of the
Financing of Terrorism (Article 6) and International Convention for the Suppression of Acts of Nuclear
Terrorism (Article 6) have the provision to require the State Parties to deny any validity, in their domestic
political and legal institutions, to any political offence, defence or justification for the acts of terrorism
defined in those Conventions.
4. Legal and Non-legal Obstacles to Establishing Territorial and Extraterritorial Jurisdiction over these
Offences as Required by the Conventions, and their Possible Solutions
The group started the discussion by clarifying the notion of territorial and extraterritorial jurisdiction.
What is firstly required by most of the Conventions/Protocols under their jurisdiction clauses is to establish
territorial and nationality jurisdiction over the terrorism offences. In addition, most of theConventions/Protocols require State Parties to take such measures as may be necessary to establish
jurisdiction over terrorism offences in cases where the offender is present in their territories and they do
not extradite him/her.
Most of terrorism offences are punished by the domestic laws of members’ countries. Therefore, we do
not find any problems regarding establishing territorial jurisdiction over terrorism offences.
Regarding extraterritorial jurisdiction, most of the countries do not have any problems in establishingextraterritorial jurisdiction as long as they are Parties to the Conventions/Protocols. In this regard, Japan
does not have any problems in establishing extraterritorial jurisdiction because it is provided as such in thedomestic legislation.
One of the legal obstacles to establishing extraterritorial jurisdiction is non-ratification/accession to theConventions/Protocols by some countries. The primary solution to the above problem is that many countries
be party to the Conventions/Protocols. However, where they may consider some provisions of theConventions/Protocols to be against their Constitutions or the States’ domestic legislation, in being party to
the Conventions/Protocols, the secondary solution may be the ratification/acceptance/approval/accession
with reservation; for it is better to have some universal Conventions/Protocols than not to have anything at
all.

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5. Legal and Non-legal Obstacles to Making these Offences punishable by Appropriate Penalties Taking into
Account their Grave Nature, and their Possible Solutions
There was a discussion whether to standardize the range of penalties to be applied to these offences forthe gravity of terrorism offences differs from country to country. For instance, the death penalty may be
regarded as being appropriate for terrorism offences in one country yet it is outlawed in another. However, it
was pointed out that requiring specific criminal penalties might infringe the sovereignty of each country.
Moreover, none of the Conventions/Protocols in their requirements refers to the standardization of thepenalties to be applied to the offences, but just stipulates that Conventions/Protocols’ offences should betreated as grave.
We thus agreed that the gravity of the penalties should be evaluated within the parameters of eachParty’s criminal law.
In this regard, for instance, in Brazil, all terrorism offences are classified as heinous offences in criminal
law. And they are also non-bailable and not subject to grace or amnesty. Likewise, others stated thatterrorism offences are treated as grave ones.
Also, as discussed below in 2 (1) “Extradition”, the Group agreed that the penalties should be severe
enough for the offences to be qualified as extraditable ones.

B. Mutual Assistance and Extradition
1. Legal and Non-legal Obstacles to the Provision of Mutual Assistance and Extradition of Terrorism
Offenders, and their Possible Solutions(i) Mutual assistance
Most Conventions/Protocols require State Parties to afford one another the greatest measure ofassistance in connection with the investigation or criminal proceedings in respect of terrorism
offences. The group first focused on the existence of a treaty or an agreement as the prerequisite forthe provision of mutual assistance.
Most countries do not make the provision of mutual assistance conditional on the existence of atreaty or an agreement, and provide assistance even in the absence of a treaty on the basis ofreciprocity. In one country, a treaty or an agreement is required to provide mutual assistance. Thus
requiring the existence of a treaty or an agreement can be an obstacle to the provision of mutual
assistance. It should be noted that even countries, other than the country which requires a priortreaty or agreements for mutual assistance, could not provide assistance to that country due to theprinciple of reciprocity.
The assistance is not uniformly provided by the countries. The collection of evidence, examination ofa witnesses, search and seizure, the service of documents are included in assistance by mostcountries. Some countries can transfer a sentenced person for testimony to the requesting country.
In one country, the only assistance that can be provided is to summon a witness. However, nocountry can compel its nationals to go and testify in the requesting country. Under suchcircumstances, one solution would be to persuade the witness to do so, and in doing so, to make useof “safe conduct”, i.e., guaranteeing that the witness would not be prosecuted in the requesting
country for whatever offence he committed prior to the request. Conducting testimony through theuse of a video link system in the requested country may be used.
As the conditions for providing assistance, dual criminality is required by all countries. It was pointed
out that in considering this condition we should decide whether the act itself constitutes an offence
in the requested State, but not stick to the similarity of the provisions of offences. In connection with
this, the law in Thailand stipulates that assistance shall not be related to a military offence.
Most countries can provide assistance by following the procedure as done in the requesting country
unless it is against the laws in the requested country. However, one member stated it can notprovide assistance in a way deviating from the procedure in the member’s country. Such noncompliance by the requested country might cause the problem of admissibility in the criminal
procedure in a requesting country. Such a problem could be solved by concluding a bilateral treaty
accommodating specific proceedings required in the requesting country.

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The International Convention for the Suppression of the Financing of Terrorism has a provision that
explicitly denies State Parties a refusal of the request for mutual legal assistance on the ground ofbank secrecy. In this regard, the investigation authorities can obtain bank information in countries
except Brazil and Zimbabwe, both of which require a judicial order to do so. However, in Brazil, foradministrative purposes, exchange of bank information is possible between central banks. It depends
on each country’s bank secrecy law that provides for conditions to allow banks to release theircustomer’s information whether or not the authorities are able to get bank information. However,such differences will not cause any difficulties in relation to the requirements of the Convention.
Ideally, the bank information should be accessed without court order to meet the requirements of theConventions/Protocols as that is usually very cumbersome and slow.

(ii) Extradition
The group first focused on the existence of a treaty or an agreement as the prerequisite forextradition. One country makes extradition conditional on the existence of a treaty or an agreement.
Other countries can extradite in the absence of a treaty on the basis of reciprocity as done withmutual legal assistance. The possible solutions to the problem of a refusal of a request for extraditionin the absence of a Treaty are: (a) such country endeavours to enact the law to make extradition
possible on the basis of reciprocity; or (b) it deems the universal Convention/Protocols as a legal
basis when a request is made from another country with which it has no extradition treaty.
The Conventions/Protocols require that the offences defined therein shall be recognized as
extraditable offences. In this regard, Brazil, Vietnam and Thailand require that such offences shall bepunishable with imprisonment of at least one year in the requested country. However, in Zimbabwe,extraditable offences are those that are punishable with at least one year in the requesting country.
In Laos, such offences are those that are punishable with imprisonment of at least six months. Only
Japan requires that such offences be those that are punishable with imprisonment of at least three
years in both the requesting country and Japan.
Most countries require dual criminality regarding extraditable offences. In this point, Zimbabwe does
not require dual criminality for extradition. Thailand can exclude this requirement by a treaty. We
should not interpret this requirement restrictively, as discussed above in the issues of mutual legal
assistance.
All countries have the principle of non-extradition of their nationals. However, in this regard, somecountries can extradite their nationals under certain conditions. For example, Brazil can extradite
their nationals when the offences were committed before his/her naturalization. Both Thailand andJapan can extradite their nationals in accordance with a treaty. Zimbabwe can extradite its own
nationals where there is consent from the offender.
There were some other refusal grounds for a request of extradition. For example, Brazil does notextradite an alleged offender to a country that retains the death penalty (except in case of declaredwar), life imprisonment, hard labour or cruel physical punishment. In this connection, Thailand is
now working on drafting an amendment to cope with such countries which will refuse a request froma country that retains the death penalty.

(iii) Practical obstacles
As a practical obstacle to effective mutual legal assistance/extradition, the problem of a lengthy
procedure was discussed.
It was indicated that there is sometimes no information on which agencies/ministries a request formutual legal assistance/extradition should be sent to when several ministries/agencies wereinvolved in the procedures in some requested countries. In this regard, it is necessary to decide acontact point in the beginning.
Since there is insufficient knowledge on the procedures or systems in the requested countries, therequest form is sent back and forth due to petty mistakes. It is encouraged that competentauthorities of State Parties have relevant laws and procedures on their websites.
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ministries/agencies. A possible solution to this problem is to streamline the procedure by amending
the existing laws or treaties.
In case requested countries do not necessarily respond quickly, informal personal relationships withcontact persons should be utilized.
2. Legal and Non-Legal Obstacles to the Provision of Mutual Assistance and Extradition Where the Offence
is Committed by Political Motivation, and their Possible Solutions
Some Conventions/Protocols such as the International Convention for the Suppression of Acts of Nuclear
Terrorism have a provision that explicitly stipulates a request for extradition or for mutual legal assistancebased on a political offence may not be refused on the sole ground that it concerns a “political offence” or an
offence connected with a “political offence” or an offence inspired by political motives. However, mostcountries do not provide mutual assistance or extradition when the offence for which assistance orextradition is requested is a “political offence” under their laws. Therefore, it was discussed whether thisprovision in their laws was applicable to terrorism offences. In this regard, it is difficult to clearly define whata political offence is. We should be cautious to regard the offence for which mutual assistance or extradition
is requested as a political one, taking into consideration the serious threat or result caused by terrorism
offences.
3. Legal and Non-Legal Obstacles to the Compliance to the Obligation to Extradite or Prosecute (aut dedere
aut judicare)
Conventions/Protocols require that State Parties shall either extradite or submit the case to thecompetent authorities for prosecution.
In this connection, most Conventions/Protocols require State Parties not only to establish territorial andnationality jurisdiction over the terrorism offences, but also to take such measures as may be necessary toestablish jurisdiction over terrorism offences in cases where the offender is present in their territories andthey do not extradite him/her as stated above. Thus each State Party can fulfil the obligation to extradite orprosecute and to deny terrorists a safe haven.
First, it was pointed out whether or not a request for extradition is enough for the authorities to initiate
investigation of the alleged offence. In this regard, most countries found no problems in regarding therequest as the basis for the investigation.
Next, it was pointed out that even the compliance to the obligation to extradite or prosecute does notnecessarily result in the conviction of the alleged offender and that he/she will be left free in the end.
Therefore, it is necessary for the requested country refusing the extradition to do its best to collectsufficient evidence to convict the offender. In turn, the requesting country should provide evidence at its
disposal.
Further, one of the obstacles in gathering evidence in the country where the trial is carried out is thepresence of a specific procedure on how evidence is to be collected. A possible solution would be for therequesting country to be as accommodating as possible in providing evidence to the extent that the evidence
is admissible in the requested country.

III. RECOMMENDATIONS
In conclusion, we decided to make the following recommendations:1.

No country in the world is free from a terrorist attack. It is a global menace and therefore no country
should be a safe haven for terrorists. All countries should complete the ratification, acceptance,
approval and accession of the 13 universal Conventions/Protocols as soon as possible.

2.

Becoming a Party to the Conventions/Protocols alone is not enough. There is a need to criminalize
terrorist offences and establish jurisdiction over them to achieve the implementation of theConvention/Protocols. There is a need to raise public awareness and inspire political will in all
countries to become a Party to and to implement the Conventions/Protocols.

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3.

There is also a need to for all countries to allocate appropriate resources to ensure theimplementation of the requirements of the Conventions/Protocols. In this regard, technicalassistance in such areas as drafting implementing laws and training for law enforcement officers by
the United Nations or other donors should be available where necessary.

4.

In regard to appropriate penalties for terrorism offences, it is necessary for all countries to makepenalties sufficiently severe as to qualify as extraditable offences.

5.

All countries should offer mutual assistance as wide as possible, as long as it is not against the law inregard to the collection of evidence, examination of witnesses, search and seizure, the service of
documents, and so on.

6.

There is a need for cooperation among countries, criminal justice agencies such as law enforcement,
prosecution and the judiciary in order to eliminate red-tape and shorten the procedure for mutual
assistance and extradition. Enacting or reviewing the law giving priority to extradition decisions
might be effective in hastening the review to some extent in some countries. There is a need tomake full use of personal relations in shortening the process of mutual assistance and extradition.

7.

There is a need to raise the awareness of the judiciary on the subject of terrorism and therequirements of the Conventions/Protocols so that they are able to interpret their law in order todistinguish “political offences” from terrorism acts as defined in the Conventions/Protocols, andestablish jurisprudence on that subject.

8.

There is a need for all countries to fulfil the obligation of aut dedere aut juducare. The countries that
refuse extradition should cooperate with the requesting country in gathering requisite evidence tothe greatest extent possible.

GROUP 2

FINANCING OF TERRORISM
Chairperson
Co-Chairpersons
Rapporteur
Co-Rapporteurs
Members
Advisers

Mr. Devendra Kumar Pathak
Mr. Ali Mohammed Alshali
Mr. Koichi Endo
Mr. Hodges Api Ette
Mr. Aldrin Enrique Lainez Cruz
Mr. Makoto Uemura
Mr. Prima Idwan Mariza
Mr. Thet Lwin

(India)(Saudi Arabia)(Japan)(Papua New Guinea)(Honduras)(Japan)(Indonesia)(Myanmar)Prof. Motoo Noguchi
Prof. Masato UchidaProf. Megumi Uryu

(UNAFEI)(UNAFEI)(UNAFEI)

I. INTRODUCTION
Group 2 began its discussions on the 18 January 2006. In its first meeting, by consensus the above
mentioned board members were elected. The group then discussed the guidelines for the topics provided
and decided on the agenda as follows:
1. Financing of Terrorism(i) Definition(ii) Distinguishing between money laundering and financing of terrorism
2. Country Experiences(i) Legislation and legal regimes(ii) Agencies involved in detection and investigation(iii) Inter-agency administration and cooperation
3. Measures against Financing of Terrorism(i) Generation of finance(ii) Method of transfer(iii) Obligation for reporting
4. International Cooperation for Investigation(i) Generation of finance(ii) Method of transfer(iii) Obligation for reporting
5. Preventing and Detecting Measures
6. Recommendations

II. SUMMARY OF DISCUSSION
A. Introduction
Terrorism involves the participation of people and the use of logistical support to advance their beliefs,
ideologies or dreams whether they are cultural, economic, philosophical or religious. Ostensibly, to maintainthe subsistence of its members and acquisition of logistics necessary to enhance the perpetration of theterrorist’s unlawful activities, terrorist organizations require financial resources.
At the international level, the United Nations has taken measures to coordinate, and as much as possible
synchronize, the actions taken at the domestic level by propagating necessary international instruments.
Without undertaking an elaborate discussion of the relevant respective instruments, it is considered
important to mention them briefly.
(i) The thirteen universal legal instruments including the Convention for the Suppression of Terrorist
Financing 1998(ii) The FATF Forty Recommendations on Money Laundering(iii) The FATF Nine Special Recommendations for Financing Terrorism(iv) The Security Council Resolution 1267(v) The Security Council Resolution 1373

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Especially, Security Council Resolution 1373 calls for all Member States to take drastic measures tocurtail the sources of funding and any opportunities that may present itself as an avenue of abuse to generatefunding for terrorist related activities. In respect of financing of terrorism the general framework entrenchedin the Nine Special Recommendations of the FATF/GAFI provide the basic guidelines for all Member States
to follow in their efforts to establish a vibrant domestic democratic legal regime against the financing ofterrorism. The Nine Special recommendations call for:• Criminalization of acts of financing terrorism• Effective sanctions for legal persons for the acts of financing terrorism• Freezing and Confiscating terrorist assets• Obligations of suspicious transactions reporting involving terrorist acts or organizations• International cooperation for investigations, inquiries, and proceedings related to the financing ofterrorism• Other important preventive and detective measures
Control of alternative remittanceControl of wire transfers
Control of non-profit organizations
Control of cash couriers• Inter-agency coordination among relevant agencies (e.g. FIU, Law Enforcement, Intelligence) in theinvestigation of terrorist financing offences.
■■■■

Governments, legislators and agencies tasked with the responsibility of establishing a legal regime
against terrorism must be strongly urged to adhere to the Nine Special Recommendations of the
FATF/GAFI.

III. FINANCING OF TERRORISM
A. Definition
Terrorism has not been accorded a specific definition under international law. In retrospect, theinternational community cannot stand aside and await such definition to be formulated first before taking
measures to criminalize all the actions that constitute the crime of financing of terrorism. Essentially,
because within the realm of criminal law, whether domestic or international, the various acts perceived toconstitute an act of terrorism are commonly agreed upon even without a definition. This in our viewprovides the platform on which respective countries can proceed to establish a competent legal regime todeal with the menace in its entirety.
This is made possible by the notion that the thirteen United Nations instruments that relate to terrorism
promulgate the various acts that constitute the offences of terrorism. More so, the International Convention
for Suppression of the Financing of Terrorism states that financing of terrorism refers to:
1. Any conduct by any person that directly or indirectly, whether lawfully or unlawfully and wilfully
provide or collect funds with the intention that they should be used, or in the knowledge that theyshould be used, to carry out an act that constitutes an offence under any one of the thirteen United
Nations Conventions.
2. It also relates to any act intended to cause death or serious bodily injury to a civilian, or to any otherperson not actively involved in a situation of armed conflict, when the purpose of such act is to
intimidate a population, or to compel a government or an international organization to either do or
abstain from doing a specific act. Moreover it also includes the act of attempting to participate,organize, contribute or directing the provision or collections of such funds.
3. It is not necessary that the funds are actually used to commit an offence.

B. Distinguishing Money Laundering and Financing of Terrorism
The financing of terrorism takes many forms. It epitomizes an economic arrangement which reflects
many, if not all, of the same traits of an international organized crime. It is undeniable that terrorist
organizations to some extent do engage in money laundering and other general criminal activities tosupplement their source of finance. The crucial distinction between financing of terrorism and organizedcrime, particularly money laundering, is that in contrast, organized crime syndicates launder proceeds ofcrime as a covert technique to legalize the proceeds and create a false impression of the legitimacy of its
sources. More so for monetary profit, while terrorist organizations are more interested in the disbursementof the money and at the most, some if not all of the sources of these funds are legitimate.

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US$400 Billion is circulated worldwide annually in money laundering activities. However, money
laundering is quite a different sphere of crime to that of financing of terrorism. It deals with revenue derived
from an act of crime. In contrast, financing of terrorism relates to activities undertaken to facilitate funding of
the commission of a crime of terrorism. In this regard, financing terrorism relates to actions undertaken
prior to the commission of the principal offence of terrorism. They fall into the category of direct financing,conspiracy, perpetration, aiding, averting and/or incitement to contribute to the raising of funds to enable thecommission of the principal offence of terrorism.
Irrespectively, analysis of the economics of terrorism demonstrates to a certain extent that internationalorganized crime syndicates generally have a motive quite different from those of terrorist organizations. In
this respect, terrorism related organized crime is believed to constitute a small and difficult to detect portionof millions of dollars in the global formal established financial systems.
Hence, it is necessary to make the distinction so that the legal regimes that are established are able todeal with both types of crimes adequately. That they are not confused into being the same or similar criminal
acts which may result in the establishment of a domestic legal regime that is unable to deal with either
offence or their associate offences comprehensively.

IV. COUNTRY EXPERIENCES
As the basis for further development of the legal regime against terrorism both at the domestic andinternational level a coordinated effort requires all countries to share their experience and learn from eachother, identify issues and develop synthesized strategies to enhance the existing regime. Therefore, apartfrom country experiences shed during the group sessions, we also drew from the individual presentations byparticipants from the twenty countries represented at this seminar.

A. Legislation and Legal Regimes
Members of the group were accorded an opportunity to briefly provide an overview of their countries
situation. Most countries if not all have ratified the UN Convention on Suppression of Financing of Terrorism
and approved the (GAFI) FATF Forty Recommendations. Not only that but also enacted legislation to deal
with money laundering and also approved the (GAFI) FATF Nine Special Recommendations on Terrorist
Financing for which most countries have encoded the relevant offences under their money laundering laws.
Not withstanding these measures, it is understood that some countries, to fully criminalize the financing
of terrorism, need to enact specific legislation on the financing of terrorism as the current regime under
their money laundering legislation does not fully embrace all possible avenues for the commission of
offences relating to the financing of terrorism. Not the least, most countries have yet to enact laws on cyber
space management to regulate the use of cyber space. Furthermore, it is also perceived that further
legislative actions are required at the domestic level to amend existing legislation such as that dealing withevidence and searches so that they are compatible with the international standards required to effectively
criminalize the financing of terrorism.
Another common feature we have observed is that most countries have various agencies assigned withthe task of administration and enforcement of different aspects relating to terrorism specific to their sphereof responsibility. Hence, activities by these domestic agencies, departments and/or institutions is at most
uncoordinated. As a consequence, the development of a coordinated domestic legal regime to combat
terrorism is staggered and slow. Needless to say many Member States of the United Nations have been
compelled to at least take these measures in a rush to avert sanctions that may be applied under Security
Council Resolution 1276 for non-compliance.

B. Agencies Involved in Detection and Investigations
In line with Security Council Resolutions 1373 countries of most of the participants have establishedFinancial Intelligence Units (FIU). However, it must also be acknowledged that FIUs are not investigative
bodies. They are only administrative agencies which receive, analyze and disseminate information on
suspicious transactions. Thus by themselves they are weak institutions in that their effectiveness andefficiency is widely dependent upon:(a) Goodwill of the relevant financial institutions providing suspicious transaction reports at the first
instance.
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the information to law enforcement agencies to investigate any purported commission of any
offences in that respect.
Therefore, some of the participants felt that it is necessary to establish a framework to criminalize any
failure to comply with the requirement to report suspicious transactions in the form of penalties against thefinancial institution per se and also the responsible staff, particularly where gross intentional negligence isestablished. However, some of the participants opposed the idea because of its vagueness and difficulty ofdefining suspicious transaction reports and therefore, we believe criminal punishment against noncompliance is not appropriate.
Currently there is already in existence a forum for the international association of FIUs under an informalorganization known as the Egmont Group. The group has more than 100 members but does not have any
formal structure wherein it operates in as much as on an ad hoc basis. Perhaps it is necessary for thoseMember States who have yet to affiliate to consider membership and also endeavour to promulgate efforts toformalize the constitution, administration and operational capacity of the organization to provide an effective
forum at the international level for cooperation on FIU related matters.

C. Inter-agency Administrative Cooperation
It is also acknowledged that some countries have a multi-agency approach in dealing with various aspectsof financing terrorism at the domestic level. In such situations information collated is shared between
agencies at a common platform and taken up for execution of relevant measures by the respective agencies
concerned so that financing of terrorist acts could be preferably prevented or minimized, and if not then theperpetrators detected after the commission of the terrorist act. For example Saudi Arabia established apermanent committee for anti-money laundering and terrorist financing represented by many agencies andsecurity services with a vested interest in terms of their respective organizational responsibilities in related
issues.
Similar cooperation must be encouraged between respective member countries of the United Nations
and between international agencies that have different charters but are also striving to curb the menace ofterrorism within their respective sphere of interest. Sharing of information, reciprocity in judicial andcriminal investigation and mutual assistance in criminal matters are identified as some areas in which muchcooperation is required. One must also recognize the diversity of cultural, political and legal regimes of eachcountry. To this extent, possible solutions may lie in enacting or amending domestic laws with due
observance of such diversity but in accordance with the requisite international standards so that theintended legal regime is functionally effective and efficient in terms of criminalizing all acts of financing ofterrorism, detection, investigation and prosecution and also rendering such cooperative services between
friendly nations lawfully and quickly.

V. MEASURES AGAINST FINANCING TERRORISM
In line with the Security Council Resolution 1373, domestic measures taken against the financing ofterrorism must encompass actions to prevent and suppress the financing of terrorist acts by criminalizationin domestic laws and regulations and with penal provisions that duly reflect the seriousness of terrorist acts
such as the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in
their territories with the intention that the funds should be used, or in the knowledge that they are to be
used, in order to carry out terrorist acts. In addition be flexible enough to freeze, without delay, the funds
and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist
acts or participate in or facilitate the commission of terrorist acts, of entities owned or controlled directly or
indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons
and entities, including funds derived or generated from property owned or controlled directly or indirectly bysuch persons and associated persons and entities. Not least prohibit their nationals or any persons andentities within their territories from making any funds, financial assets or economic resources or financial orother related services available, directly or indirectly, for the benefit of persons who commit or attempt tocommit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled,
directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction ofsuch persons.

86132ND INTERNATIONAL SENIOR SEMINARREPORTS OF THE SEMINAR

The legal regimes of all States shall legislate against providing any form of support, active or passive, toentities or persons involved in terrorist acts, including collaboration in the provision of early warnings toother States by the exchange of information, denial of safe haven to those who finance, plan, support, orcommit terrorist acts, or provide safe havens, prevent those who finance, plan, facilitate or commit terrorist
acts from using their respective territories for those purposes against other States or their citizens, ensurethat any person who participates in the financing, planning, preparation or perpetration of terrorist acts or
supports terrorist acts is brought to justice.
In addition, afford one another the greatest measure of assistance in connection with criminal
investigations or criminal proceedings relating to the financing or support of terrorist acts, including
assistance in obtaining evidence in their possession necessary for the proceedings, find ways of intensifying
and accelerating the exchange of operational information. Enhance the possibility of such cooperation bybecoming parties as soon as possible to the relevant international conventions and protocols relating toterrorism, including the International Convention for the Suppression of the Financing of Terrorism (1999).

A. Generation of Finance
The inflow of financial resources of a terrorist organization more or less derives from legitimate sources,
illegal revenue and criminal activities.
(i) Legitimate sources include activities which are not considered illegal such as formal businessenterprises and donations from charity and private individuals. Such businesses and charity
organizations or individuals must be regulated by law. For instance, Saudi Arabia spares no effort indrafting regulations and taking measures that cope with changes to ensure the continuing monitoringof Saudi local and foreign charitable and relief organizations, while in Japan business operations of the
Aum Shinrikyo organization are subjected to regular inspections.
(ii) Illegal revenues originate from the diversion of legal funds and at times covert aid from foreign
governments. On the other hand criminal sources, to name some, range from theft, fraud, money
laundering and extortion. Hence, it is of paramount importance that within the framework ofachieving the objectives of countering terrorism, as set forth in the international instruments, theefforts at both domestic and international fronts must be absolutely comprehensive by way oflegislation and enforcement of law and order, and must be consistent and continuous. It is also
important to note that any action to criminalize such actions must comprehend not only the means
currently used or abused but any means that promote any possibility of being used or abused tofurther such criminal activities.

B. Method of Transfer
Wire transfers pose a major problem and therefore comprehensive action is necessary by way of newlegislation or amendments to existing laws to regulate their use. In addition, informal money transfer
systems known by different names around the world such as hawala in the Middle East, hundi in India, phoeiin Thailand, fei chien in Hong Kong, padala in the Philippines, in common request very little informationfrom users. Other possible mediums of money transfers include the gate keepers such as law firms,
accounting firms, real estate agents, insurance brokers and doctors whose records are protected by stringent
privacy laws. To comprehensively deal with all financial transfer actions, such institutions must also be
regulated and required by law to also implement know your customer policies and report suspicioustransactions to their FIU. Needless to say, domestic legal regimes must be implemented to regulate privacy
policies in the interest of enhancing public safety standards.
Development of possible alternative methods of transfer by sale of individual bank accounts must be
regulated. More so the use of mobile, email and other internet facilities to make such transfers must be
regulated. For instance, companies involved in the sale and connection of mobile phones must be required tokeep records of their customers, including maintaining a record of serial numbers of the mobile phones soldto ensure tracing by law enforcement agencies where such items are used or abused in relation to terrorism.
Hence new legislation may be required to effectively manage cyber space.

C. Obligations for Reporting
It is common among many countries that respective money laundering laws obligate banks and other87

RESOURCE MATERIAL SERIES No.71

financial institutions to report suspicious transactions. However, it is perceived that similar policies,
including registration and licensing, must be applied to operators of alternative remittance systems, cashcouriers, gate keepers and also businesses that deal with cyber space technology.
A common practice among countries is that respective domestic laws set transaction limitations on theamount to be transferred at any one time. Most jurisdictions have standardized limitations at US$10,000
However, reporting of suspicious transactions must not only apply to transactions over such set thresholds
but must include reporting of any transaction below the threshhold which for one reason or other issuspicious.

VI. INTERNATIONAL COOPERATION FOR INVESTIGATION
United Nations Security Council Resolutions 1373 and 1267 establish the basis for interagency
cooperation at national and international level. We identified four pillars of international cooperation
1. Legislation
2. Information gathering
3. Investigation
4. Extradition
Some Member States of the United Nations have laws on international cooperation such as the Law forInternational Assistance in Investigation and The Law Relating to Reciprocal Judicial Aid to be Given at theRequest of Foreign Courts which allows for investigation upon request by the requesting country eventhough there is no treaty between the receiving state and the requesting country. Comprehensive
international efforts must adopt similar practices to enhance international cooperation. Other measuresoutside of formal arrangements such as direct contact between agencies of countries must be facilitatedbilaterally or at regional levels to advance expeditious actions in investigation, prosecution and seizure orconfiscation of tainted or suspicious property and freezing of accounts whereby formal bureaucratic andpolitical red tape do not become an impediment to prudent law enforcement.
Indeed major and sensitive matters may take time. The process is slow where it relates to formal legal
procedures. While lengthy formal procedures pose a problem it is compounded by the attitude of therespective countries in providing such assistance and cooperation. Nearly all countries identify with the
problem. Thus it is necessary that arrangements be implemented to allow, for example, for direct police topolice contact for cooperation and networking.
Some things are for sure. Terrorist organisations use various numbers of systems. For example, Money
brokers or financing in the form of commodities such as gold and donations. Hence, direct contact between
the police/intelligence agencies is dependent on mutual arrangements at the international level throughconsultations at international forums, or direct bilateral liaison may be able to assist in removing divergent
interests of each country for the common interest. Perhaps also the use of existing forums such as Interpol
and the Egmont Group are also encouraged instead of establishing new forums and agencies with a view toimproving efficiency at minimal cost.
Because of its international nature, training is an integral part of enhancing a vibrant, efficient andeffective legal regime in all aspects within the four pillars of cooperation. Countries who possess methods,
technology and the expertise that meet the set international standards need to cooperate by extending theirhand in assistance towards states which need assistance to curb not only the existing avenues and means offinancing terrorism but also avenues that pose the potential to be abused for such criminal purposes.

VII. PREVENTIVE AND DETECTING MEASURES
Japan has domestic legislation and an action plan put in place by the government for counterterrorism
and in particular measures on border surveillance and control measures. The current legal regime also
allows site inspection of such known groups in particular. Many jurisdictions, in their determination tocombat terrorism, are improvising methods to improve their capacity.
There is no one way of preventing and detecting international criminals, and more so effectively stopping
them, before they even attempt to commit such offences which have a wider global impact on society in88132ND INTERNATIONAL SENIOR SEMINARREPORTS OF THE SEMINAR

terms of related costs and incidental effects. For example, Saudi Arabia has been subjected to more than 23
acts of terrorism at the domestic level. Hence it has established agencies to implement counter measuresagainst terrorism, regulated charity donations and legislated severe punishment for offenders including thedeath penalty and long term prison terms with stricter parole and probation procedures. Special mention wasmade that in Saudi Arabia terrorist funds worth US$ 11 million were frozen in compliance with Security
Council Resolution 1267. These examples demonstrate that measures must be taken at both the domestic
and international level to educate and promote awareness among citizens of the menace of terrorism.
Terrorism is a global threat by its assumed nature. Combating it requires global cooperation in theestablishment of a legal regime through, sharing of experience, intelligence and information, collaborative
legislation of stronger laws and cooperation in the detection, investigation and prosecution of acts offinancing terrorism both at the domestic and international level.

VIII. RECOMMENDATIONS
A. To ratify and implement the International Convention for the Suppression of the Financing ofTerrorism;
B. To adopt and implement the FATF Forty Recommendations and Nine Special Recommendations;
C. In particular, the following measures should be prioritized:
1. To establish the necessary legal framework to detect and investigate terrorist financing
including measures to freeze, seize, and confiscate terrorist assets.
2. To criminalize all acts of terrorist financing and bring all perpetrators to justice.
3. To ensure that legal persons are subjected to appropriate civil, criminal, or administrative
sanctions for non-compliance.
4. To ensure that all banks and financial institutions are properly licensed or registered including
alternative remittance service providers.
5. To issue regulations for financial institutions with respect to terrorist financing obligations under
the international standards and relevant domestic laws.
6. To ensure the compliance by financial institutions and others that are subject to financing ofterrorism regulations such as the know your customer rule and suspicious transaction reports.
7. To regulate ‘gate keepers’ properly with respect to the obligation of making suspicioustransaction reports.
8. To enhance information sharing at the regional and international levels, e.g., by becoming a
Member State of the Egmont Group for financial intelligence units.
9. To enhance inter-agency cooperation among relevant ministries and agencies.
10. To augment intelligence agencies.
11. To hold training programmes locally and internationally for the concerned government officials
to increase their knowledge and skill and familiarize them with the latest methods in combating
terrorist financing.
12. To conduct awareness-raising programmes for the general public.

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GROUP 3

PREVENTION, DETECTION, INVESTIGATION AND PROSECUTION OF
TERRORISM ACTS
Chairperson
Co-Chairpersons
Rapporteur
Co-Rapporteurs
Members

Advisers

Mr. Eddy Sigfrido De Los Sansos Perez
Ms. Mari Miyoshi
Mr. Viliami ‘Unga Afuha’amango Fa’aoa
Mr. Mohammad Mohd Yaacob Supian
Mr. Tadashi Imai
Mr. Hugo Rodolfo Gamarra Atencio
Mr. Sonam
Ms. Masayo Doi
Mr. Odelon Garrido Ramoneda(Dominican Rep.)(Japan)(Tonga)(Malaysia)(Japan)(Venezuela)(Bhutan)(Japan)(Philippines)

Prof. Tomoyuki Noge
Prof. Satoko Ikeda
Prof. Hiroyuki Shinkai
Prof. Haruhiko Higuchi(UNAFEI)(UNAFEI)(UNAFEI)(UNAFEI)

I. INTRODUCTION
Group 3 started its discussion on Jan 18, 2006 and elected the members of the board as listed above. The
chairperson then, with the agreement of the group members, gave to each group member the respective
topics to be prepared for further discussion as follow:
1.

measures to control entry of terrorists and dangerous materials. (Ms. Miyoshi and Mr. Supian)2.

Effective measures to prevent and suppress terrorism acts within its own territory. (Mr. Odey and
Mr. Imai)

3.

Specific issues related to investigation and prosecution of terrorism offences. (Mr. Unga)(i) Use of special investigative techniques. (e.g. Electronic surveillance, undercover operations).
(Mr. Odey and Mr. Imai)(ii) Witness protection. (Mr. Unga)(iii) Use and protection of intelligence information in criminal proceedings. (Mr. Unga)

4.

Coordination and cooperation among relevant authorities. (Mr. Sonam and Ms. Doi)(i) Inter-agency coordination between relevant agencies. (Mr. Sonam and Ms. Doi)(ii) Law enforcement cooperation between states. (Mr. Unga)

II. SUMMARY OF DISCUSSION
A. Effective Measures to Control Entry of Terrorists and Dangerous Materials
1. General Discussion
The discussion started with a brief explanation by two members of the group regarding the entry of
persons and goods including dangerous materials into the country. They explained that there are basically
two ways of entry of persons and goods: either through legal or illegal means.
The legal entry of persons and goods is made through legal entry points such as through the seaports,
airports and border entry points where they must have relevant documents to be submitted for inspection
and approval by either the immigration officers or the customs officers prior to their entry. Whereas theillegal entry/smuggling of persons and goods can be done by getting them into the country through an illegal
entry/landing place where there are no enforcement officers manning the area; or the persons or goods aretaken into the country through the border checkpoints without any proper documents or without declaring
them/it by hiding them/it in a secret compartment of a vehicles or container entering into the country.

90132ND INTERNATIONAL SENIOR SEMINARREPORTS OF THE SEMINAR

The discussion continued with suggestions for effective measures to be taken for controlling the entry ofterrorists and dangerous materials. The chairperson then opened the discussion to the other group members
for further comments and suggestions that would benefit the group in tackling this issue.
2. Proposed Measures
The group came to a consensus of opinion that effective measures to control the entry of terrorists anddangerous materials such as weapons, firearms, explosives and hazardous chemicals are of crucial
importance to any nation state in the world. The group also made a reservation that measures taken,
however, should depend upon the resources and capability of each country in implementing them due toeconomic, political and other reasons.
The group then unanimously agreed to propose the following measures to control entry of terrorists anddangerous materials into a country as follows:(i)Use of very high performance detection equipment for easy detection of terrorists and dangerous
materials trying to be smuggled into the country through clandestine means and also to trace theuse of forged travel documents. In some countries this measure has already been applied and has
proven to be very helpful. A group member said that in his country, more than 15 scannermachines have been placed in major ports, airports and at border entry/exit points to help thecustoms officers detect the smuggling of goods into the country. With the help of this technology,
they managed to get many cases, however so far no case of smuggling of persons and dangerous
materials have been detected. In response to a question raised by one member, he then explainedthat not all the containers or vehicles which entered into the country are scanned. Due to the highvolume of containers and passengers’ vehicles entering into the country everyday, only selectedcontainers and vehicles were scanned. He then agreed with the observation made by the memberthat some containers or vehicles which contained dangerous materials or persons may haveentered the country without being detected.

(ii)

Introduction of a biometrics identification system which can help the immigration officers to
identify the actual holder of the passports through their facial images and fingerprints. Thismeasure was proposed by one member. According to her, her administration is facing the problemof the use of forged passports where the pictures of the actual holder of the passports were
replaced by the pictures of the carriers. Therefore, by the use of this system, as some countries
have implemented, this problem can be tackled.

(iii)

Use of an Advanced Passenger Information System (APIS) which helps the immigration officers to
identify high risk or black-listed persons in advance prior to their arrival by receiving information
on passengers in an electronic form from the country from which the airplane departed.
Since the measures suggested in paragraph (i) and (ii) above are directly related to the issue of
immigration, the group did not discuss them in detail but agreed with the proposals since they
seem to be very useful in preventing the entry of terrorists.
The group also unanimously agreed that the measures suggested in paragraph (i), (ii) and (iii)
above are advanced technology systems in which not necessarily all the countries are planning to
introduce in the near future. However, all countries represented here have the same goal which is
to strengthen all measures in order to combat terrorism. Nonetheless most of these countries
economies do not allow them to implement such measures because of the high cost involved.
Since there are some countries which have tentative strategies of implementing these systems
within their borders or nationally, gradual assistance to other countries to implement such systems
would be highly appreciated.

(iv)

One member then suggested other measures which can help prevent the entry of dangerous
materials into the country by creating a specific provision in the laws, especially the customs lawsof each country to prohibit the importation of dangerous materials which can be used for terrorist
purposes with a condition which requires the issuance of an approval permit from the relevant
authorities, such as the police, prior to the importation. A member agreed with the proposal andexplained that in his country, the Customs Act 1967 provides a power to the Finance Minister to91

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issue a directive to totally prohibit, or conditionally prohibit subject to a license, the importationand exportation of certain goods prescribed under the Customs (Prohibition of Imports) Order1988 and Customs (Prohibition of Exports) Order 1988. Therefore, if the goods imported are
subject to a license and the importer cannot produce it, the goods can be seized and forfeited to
Customs and the importer can be charged in court. One group member then informed the groupthat his country also has this provision in their law and it helps to control the importation of goods,
especially weapons and chemicals.
(v)

To impose severe penalties/punishment in the relevant laws on those who commit the offence ofsmuggling or aiding the illegal entry of terrorists and dangerous materials. There were different
suggestions given by the members of the type of penalty/punishment that should be imposed. One
member suggested that the offender should receive capital punishment or life imprisonment if
convicted while others believed that 30 years imprisonment should be the maximum penalty
imposed.
One member also suggested that besides punishing those who commit the offence of smuggling
dangerous materials or aiding the illegal entry of terrorists, the captain of a ship who carries thedangerous materials or terrorists must also be punished as he is also criminally liable for not
checking the type of goods or people that he is carrying. This suggestion got a mixed reaction fromother members. Most of them are against this proposal on the grounds that it is impossible for the
ship’s captain to check all the goods that he is carrying where all the containers are locked and theinformation that he has is only based on the documents submitted by the owner/exporter of thegoods. One member then said that under the immigration law of her country, the pilot and theairline company are liable if it is found that a passenger is on board their aircraft without a valid
passport. However, it is only an administrative sanction with a fine and not a crime.

(vi)

To encourage people to provide information on illegal entry of terrorists and dangerous materials,
for example by establishing a monetary reward system for any information which leads to a
successful arrest and seizure case and put a specific provision in the law which guarantees thesecrecy of the identity of the informer. This proposal is supported by all members since theircountries are implementing this measure where the agencies concerned such as the police,customs or immigration have a system of encouraging people to come forward to give informationand they will be rewarded afterwards and their identity also will be kept secret.

(vii)

To put a specific provision in the law to give sufficient power to the immigration and customs
officers for inspection and investigation purposes. One member made an observation that it isimportant for these agencies to have the powers to inspect, seize, investigate and prosecute those
who commit the offence. Without these powers, prevention will be difficult.

(viii) Develop cooperation with other enforcement agencies, inter and intra, for joint operations,exchange and sharing of information and other relevant activities which can tackle the problem ofillegal entry of people and goods into the country. One member gave an example where its
administration used the assistance of the army that has advanced radar controlling equipment totrace any suspicious ships or boats entering into the country by sea. The information is thenrelayed to its administration for immediate action. One member also shared his country’s
experience where there are regular joint operations at the land border of the country consisting ofpolice, immigration and customs to prevent the entry of illegal immigrants and goods; and throughthis joint operation, many attempts to smuggle persons and goods have been foiled.

92

(ix)

Use of sniffing dogs to detect dangerous materials coming into the country through a clandestinemanner. This proposal was raised by a member where in his country, these K-9 dogs were not onlyused to detect narcotics but also to detect any explosives which were attempted to be smuggled
into the country. Anther member said that his customs administration did not use sniffing dogs todetect explosives coming into the country but the police did use them to detect any explosives
which were put in a building, etc. Other members also used this method to detect drugs andexplosives in their respective countries.

(x)

Enhancing patrolling activities at sea, air and land to detect and prevent the illegal entrance ofterrorists and dangerous materials into the country. According to one member, he was of the132ND INTERNATIONAL SENIOR SEMINARREPORTS OF THE SEMINAR

opinion that one country cannot stress only the problem of illegal entry of persons and goods
through the airports, seaports and entry/exit points at the land borders; but emphasis must also begiven to prevent the illegal entry of persons and goods directly through the illegal entry points atthe sea and land borders. His opinion was supported by other members and one of the members
further explained that in his country, his administration created a prevention system called a‘firewall’ where patrolling of areas classified as high risk areas is carried out simultaneously at thesea and land during stipulated periods of time and it was further strengthened by building camps at
those high risk areas so that prevention can be done effectively. Other member also suggested thatthe patrolling can also be carried out through the air where the cooperation from the police and thearmy can be requested. There was also a proposal from one member to put surveillance cameras atcertain strategic locations to monitor and trace any attempt to smuggle persons and goods into thecountry. However, his suggestion was considered by other members as too costly and not practicalfor most countries.
(xi)

Having good and efficient immigration and customs officers to tackle the illegal entry of terrorists
and dangerous materials by establishing an effective recruitment system and continuous training
system and capacity building programme was another measure proposed by a member. She statedthat without good and efficient officers, the enforcement of the laws cannot be done efficiently. Herviews was supported by other members who were of the opinion that we usually emphasis legal
provisions but do not take into consideration the ability of the officers to enforce the law. So thegroup agreed that strengthening the legal regime to combat terrorism must go hand in hand withequipping the enforcement agencies with good, knowledgeable, experienced and competent
officers.

(xii)

To develop a database of all suspected terrorists so that the entry of terrorists into any country canbe prevented at the entry point. However the group was informed by one member that theidentification of terrorists is very difficult to be make and some of the information given by somecountries is not so reliable because their definition of a terrorist maybe different from othercountries which makes a terrorist in one country not a terrorist in another. Therefore, the groupagreed to suggest that the United Nations should offer a solution to this problem and create amechanism to gather and disseminate information on terrorists.

III. EFFECTIVE MEASURES TO PREVENT AND SUPPRESS TERRORISM ACTS
WITHIN EACH COUNTRY
A. General Discussion
One member started the discussion by explaining the approach taken by his government in preventing
and suppressing terrorism acts by way of knowing the terrorists activities, criminalizing terrorist activities
and arresting them, outlawing or dissolving terrorists organizations, preventing terrorists from getting
materials potentially used for terrorism, suppressing terrorist financing and finally strengthening security
measures at possible terrorist targets.
Anther member then added to the points made earlier by conveying the approach taken by his country
which uses the doctrine of reciprocal responsibility where the public have to cooperate and work hand inhand with the authorities in fighting crime and terrorism by not committing or supporting these activities.
He further stressed that his country is also adopting a programme known as the ‘Three-Tiered Defence
System’ which utilizes the synergy of partnerships among the government agencies at all levels, the police
and all other concerned sectors in taking counter-terrorism measures. According to him, this system has
three distinct components: intelligence gathering, target hardening and incident management. The use ofthis system has so far helped his government in tackling the problems of terrorism in his country.
Other members responded to the discussion on this issue by suggesting building strong intergovernment agency cooperation to trace and apprehend suspected terrorists and their groups in order tomake them feel that they are not accepted in the country by the people and the government.
The proposal was further elaborated by another member who suggested that inter agency coordination isvery important especially to prevent terrorist attacks on certain areas or places which are vulnerable toterrorist attack. She cited an example such as facilities which use nuclear power to generate electricity. With

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the coordination between the ministries concerned and other enforcement agencies, the task to create a planor programme to protect these places will be much easier.

B. Proposed Measures
The chairperson continued the discussion with the proposed effective measures to prevent and suppress
terrorism acts within each country as follows.

94

1.

To gain a better understanding of terrorist activities by identifying who are the terrorists, when they
will act, where they operate, why they are involved in terrorism, how they conduct their activities,
who are their targets and all other relevant information relating to them. One member said this is avery important measure to take into consideration first before we proceed with other actions.
another member supported this opinion by saying that this information is vital since no war can be
won unless we know who the enemy is.

2.

To criminalize terrorist activities and outlaw terrorist organizations. In doing so, a member
suggested that a clear provision in the laws such as in the penal code, anti-terrorism laws, explosives
control laws and so on must make every terrorist act a crime and punishable. Another member
suggested in order to make it more clear, the act must list all the actions which are considered bythat country as terrorist acts. Another member told the group that his country is in the process ofamending its penal code in order to criminalize and punish the act of terrorism and the proposed
amendment also specifies all action which his country considers a terrorist act.

3.

To prevent the terrorists from getting materials that have the potential to be used for terrorism. One
member suggested that ownership of weapons should be licensed and it should be a criminal offence
to be in possession of weapons, such as pistols and rifles without a license. Another suggestion was
to control the importation and storage of dangerous chemicals, precursor chemicals and explosives
which can be used for a NBC attack or bombing, and to monitor the transactions of these materials
for easy detection if they have been used in terrorist activities. One member of the group reiterated
his earlier comments that under his country’s customs legislation the finance minister can make anorder to totally prohibit, or conditionally prohibit subject to a license, the importation and exportationof certain goods prescribed under the Customs (Prohibition of Imports) Order 1988 and Customs(Prohibition of Exports) Order 1988. Through this provision, the government can control theimportation of these kind of goods and can punish those who are importing them or in the possessionof goods without the required license.

4.

To suppress terrorist financing by individuals or organizations which sympathize with them or
support their mission by obliging financial institutions to identify their customers and to report any
suspicious transactions. And to have a legal system which gives the power to the authority
concerned to confiscate and freeze terrorist assets, to punish those who provide financial support tothe terrorists, to license the activity of donation collection for whatever purposes, etc. The group
was informed that most of the group members’ countries already have Anti Money Laundering andTerrorist Financing provisions with the purpose of preventing terrorists from benefiting from theircriminal actions or unjust enrichment and also to prevent the property from being used for otherterrorist actions.

5.

To strengthen security measures on any possible terrorism target such as military bases, nuclear
power facilities and embassies of the countries which have been the target of certain terroristgroups. One member gave his view that intelligence agencies in one country must have goodcommunications and good relationships with other intelligence agencies outside their country inorder to get reliable information on the suspected terrorists, their organizations, their targets andother relevant information that could help the country in preventing and capturing the terrorists
before they can commit their plan.

6.

To educate the public on the dangers and impact caused by terrorist activities in order to prevent
them from supporting terrorists and to get their cooperation in giving information of any terrorist
activities known to them.

7.

To build strong inter-government agency cooperation by exchanging and sharing information andmaking a joint effort in whatever activities and actions are taken in tackling the problem of terrorism.

132ND INTERNATIONAL SENIOR SEMINARREPORTS OF THE SEMINAR

8.

Military action should be the last alternative after other preventive action has been taken sincemilitary action will only cause the reproduction of other terrorists as has happened in Iraq. The
chairperson observed that every country has their own policy in this regard. One member explainedthat his country has to use this measure since other diplomatic measures cannot prevent andeliminate the terrorist threat in his country. Therefore, the group agreed that military action should
be used as a last resort taking into consideration that terrorism itself is a threat to our respective
countries. In some countries this threat has grown to the point where normal life is affected by it. So
the authorities have the right to use all means necessary to stop, minimize or neutralize such threats
as to maintain their integrity and sovereignty. Therefore, the use of military force as a final option
will be determined by each country based on their own particular situation.

IV. SPECIFIC ISSUES RELATED TO THE INVESTIGATION AND PROSECUTION OF
TERRORISM OFFENCES
A. Investigation
The discussion started with a brief overview of the process of investigation by one member based on his
country’s experience. He explained that the aim, or the primary purpose, of carrying out an investigation isto search for the truth in a way which is fair for the accused and also admissible in court. The mostimportant thing which must be done by the investigator is to gather the evidence. In doing so, he has toanswer these five important questions that are first, who committed the offence. For this he must know theidentity of the accused, the co-accused and also the accomplice. The second question is why he/she
committed the offence. Therefore, the investigator must know the motives and the mens rea of the offender.
The third question is to know when he/she committed the offence. In the search for the answer, theinvestigator must find the whereabouts of the suspect before, during and after the offence was committed or
the alibi of each suspect.
He then raised the fourth question, that is to know where the offence was committed by establishing thescene of the crime and the final question is to know how he/she committed the offence that is the modus
operandi used by the accused. According to him, the answer to all these five questions can be obtained fromthe statement of the witnesses and evidence which can be in the form of oral evidence, documentary
evidence, real evidence, that is the exhibits, the statements of the accused and digital evidence.
On the issue of digital evidence, the member made an observation that in most countries including his,
digital evidence is not admissible in court. Therefore, he suggested that the evidence laws of these countries
be amended to include a definition of digital evidence and to allow the admissibility of digital evidence incourt. One adviser informed the group that in Japan’s Criminal Procedure Code, the admissibility of digital
evidence is stated in the provisions. However, the law does not specify the type of digital evidence.
Furthermore, the Japanese Government is in the process of amending its Evidence Act for the purpose ofenhancing the admissibility of digital evidence in court. He further suggested that the laws regarding
investigation also need to be amended to enhance our ability to investigate e-crime.
A member then made an observation on the admissibility of oral evidence in court. According to him, in
his country, oral evidence is not admissible unless it is put in writing - that is in a statement form.
The discussion related to how to carry out an investigation so as to acquire reliable admissible evidence
which could be sustained in court. The following specific issues were discussed.
1. Search Warrants
One member of the group explained that in his country, every search must be done with a warrant issued
by the court. The law stated that any police officer of the rank of sergeant or above or officer in charge of thepolice station may apply for it from the court. However, in the case of terrorism, an application for a search
warrant can be made through phone, fax or any other electronic device and the court may issue the warrant
as a matter of urgency but the applicant must complete the formalities of the application within 48 hours
after the warrant has been issued. He further explained that the warrant should be valid for one month andcan be executed at any time. He further stated that in an urgent case, a search warrant is not needed.

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According to another member, in his country every search must be accompanied with a search warrant
issued by the court. However, there is an exception with regard to cases where the crime is flagrant - where
the criminal is caught in the act. In this situation, the police need not have a search warrant to search aroundthe crime scene. Another member also mentioned that the same procedure applies in his country where
offences are divided into two categories: cognizable offences where a search warrant is not needed and noncognizable offences where the police must have a search warrant before doing any search. While anothermember told the group that in his country, a search cannot be carried out on any establishment like a hotelor shopping complex without a search warrant. And in some other countries, no search warrant is needed if
the search was done in the presence of a prosecutor.
Another member gave an example of his country where the Customs Act provides a power to theCustoms officer to search any premises or vehicles either with a warrant or without a warrant. The reason
for allowing the authority to search without a warrant is to avoid the possibility that the evidence will be
destroyed or removed if the action is delayed due to the process of getting the warrant.
2. Arrest of the Suspect
In most group members’ countries, the authorities can arrest a suspect either with a warrant issued by
the court or arrest without a warrant depending on the seriousness of the offence and the high possibility ofthe suspect escaping if the agency has to apply for a warrant first. In one member’s country, there are twokinds of arrest - that is a warrant arrest by the authorities and secondly, a citizen’s arrest whereby a citizen
can arrest any suspected criminal without the need for a warrant from the court. One group member thenraised the question of whether there is a provision in any country which allows the authorities to arrest any
person who the authorities have reasonable grounds to believe that he/she will commit an offence, or inother words, to arrest a person before the incident or before a criminal act is committed. One member gave
his country’s experience where the authorities can only arrest a person if there is enough evidence thathe/she has committed a crime. However, in some cases, preparation for crime is also a crime, and thiscondition also applies in the case of terrorism. In this case, the authorities can arrest the person before theactual crime is committed.
3. Use of Special Investigative Techniques
A member of the group emphasized the importance of collecting information on terrorism. Through theinformation, an act of preventing a terrorist attack can be taken, a suspected terrorist can be arrested ordeported and the terrorist assets can be frozen or confiscated. He further elaborated that in order to get orcollect this information, various methods can be used such as wiretapping, use of equipment such as bugs,
tailing and guarding the suspect, etc. However, he observed that even though collecting information is amust in preventing terrorism, the process of collecting it sometimes influences or breaches the humanrights of the suspects, such as the right of privacy. The authorities must strike a balance between the degreeof terrorist threat and the effect on human rights before deciding to allow this kind of information gatheringin the law.
One member gave his opinion that in order to allow the authorities to obtain information throughwiretapping, there must be a legal provision which allows them to do so and the authorities must furnish
very good grounds to justify their actions. And he also emphasized the importance of the constitutionalrights of the citizen before deciding to take this kind of approach to getting information for the purpose of
their investigation.
Another member said that in his country, the police have the power to install tracking devices, listening
devices or any other electronic device for the purpose of gathering information which is required for theirinvestigation. This is subject to a condition that there must be reasonable grounds to believe that theoccupants or any persons that visit the place are suspected of committing an act of terrorism. He further
added that any information collected by such device may be admissible as evidence in court and subject tochallenge by the accused.
While according to one member, his country does not have any electronic devices to help them collectinformation. They only use plainclothes policeman to work undercover and pretend to be beggars, cleaners
or vendors to collect and gather information from the public.

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Another member stated that in his country, the use of an electric shock device on a suspected criminal to
get information or his cooperation is allowed by the law and the admission of the suspect is admissible asevidence in court. He, however, mentioned that this method will only be used when there is reasonable
evidence to believe that the suspect is involved in a criminal action. The majority of the members stated thatin their respective countries, this method of getting information or an admission is not allowed by the law
because it is considered torture and an admission obtained through torture or duress is not admissible asevidence in court.

B. Prosecution
The discussion relating to prosecution has been divided into the following specific issues.
1. Witness Protection
One member voiced his view that in every prosecution, the accused has the constitutional right to crossexamine all the witnesses who give evidence against him/her. In order to judge the credibility of the witness,the court is entitled to judge the demeanour of the witness. Due to this, sometimes it is very hard toconvince the witness to give evidence because they fear for their safety. Therefore, it is necessary toconsider the legal framework which aims to protect witnesses in order to encourage them to provide
important evidence. He then gave his recommendation for the legal framework such as to protect theidentity of the witness, even before court. In this instance, the prosecutor has the privilege of not disclosing
any information which may lead the recipient to identify the witness.
He also suggested that the courtroom also should be structured in a way which allows the accused tohear the witness’s voice only and not to see his/her face. And for the purpose of cross-examination, theprocess can be conducted over the phone. The group took the example of the practice in some countries,
where there is a special court procedure allowing witnesses to give evidence by video conferencing and theidentity of the witness can be hidden from the accused and the public.
The group then discussed the issue of protecting the witness after the court’s proceedings end. Most
participants stated that there was no procedure in their country to protect the identity and security of thewitness, such as to provide them with a new identity as some countries do. However, one member statedthat in his country, the authorities will give an assurance to the witness that he/she will be protected before
he/she agrees to be a witness. During the trial, the witness will be put in a protected house. After the trial
ends, the authorities will give him/her some money so that he can settle down somewhere far from his/her
previous residence.
2. Use and Protection of Intelligence Information in Criminal Proceedings
One member was of the view that information gathered through the use of ‘HUMINT’, that is human
intelligence or an informer, is not fit to be used in criminal proceedings. This is because in many cases theiridentities have to be kept secret for security reasons. He further explained that without producing theinformer in court and without revealing his name, their information will be regarded as hearsay evidence
which has only a limited capacity as evidence. Therefore, the HUMINT should be mainly used forprevention and investigation purposes and not for criminal proceedings. On the use of other intelligencemeans, such as wiretapping, he said that it can be used for criminal proceedings as long as it was obtained
through legitimate means.
On discussing the same issue, one member stated that the common law, which is the foundation of law in
his country, has seen some developments. Before this, if the evidence collected by the police was proved toof breached criminal procedure, the evidence will be inadmissible. However, the law now gives discretion to
the court to decide whether the evidence can be admissible or not depending on its probative value andprejudicial value. If the prejudicial value is more than the probative value, then the evidence will not be
admissible.
One adviser stated that in some countries, there is a firewall between criminal proceedings andintelligence activities. He said that in these countries, information gained through intelligence activities
cannot be used in criminal proceedings. However, after the 911 incidents, the law in some countries allows
the use of such information in criminal proceedings. Therefore, he wants to know whether other countries in

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this group have adopted the same approach, and if the answer is affirmative, what are the requirements forthe information to be admissible.
In replying to this question, most members said that their countries do not accept information gained
through intelligence activities as evidence in court. The information will only be used for investigation
purposes. While one member of the group repeated his earlier statement that in his country the police canwiretap any person suspected to be a terrorist and any information collected by such device will be
admissible as evidence in court. However, it is subject to the condition that the evidence is relevant to thefact in issue and also its probative value must be greater than its prejudicial value.

V. COORDINATION AND COOPERATION AMONG RELEVANT AUTHORITIESA. Inter-agency Coordination between Relevant Agencies
One of the group members opened the discussion by talking about the importance of intelligence
information in fighting terrorism and mentioned that each country has a different approach in gathering
intelligence information such as the use of wiretapping, where in some countries it is permitted whereas
prohibited in others. She is also of the opinion that it is necessary for every agency or organization in eachcountry to share the information that they have among each other to prevent terrorist acts and also theinformation will be useless if it does not reach the target user immediately after it is gained. However, sheobserved that it is a problem faced by most countries where the agency or organizations concerned inpreventing terrorism are reluctant to share the information that they have. Therefore, we must find ways tosolve this problem. She also mentioned the importance of examining closely any information received
because the information may not be important to one agency but might be to another.
Another member then related the situation in his country where there are two levels of committee whichmonitor and control the security of the nation, namely a district level committee and a national levelcommittee. The task of the district level committee is to gather all information, disseminate instructions andsubmit a report or feedback to the national level committee. The committee members consist of thedepartment heads such as immigration, police, customs and also the army. Business community leaders arealso members of this community. While the function of the national level committee, which is chaired by thePrime Minister, is mainly to draft policy on security matters. He also mentioned that in his country, thepolice have the privilege to relay any information directly to the highest authority.
Before the discussion continued, one adviser expressed his view that the revelation of intelligence
information obtained must be carefully done so that the information will only go to the actual person who
needs it and not to any other person that will prejudice the security of the information and the security of thenation. He further explained that it is not necessary that we immediately pass any intelligence informationthat we get to the authorities concerned. What we can do is to develop more on that information. He gave an
example where there is information that someone is a member of a terrorist group. Instead of giving that
information immediately to the authorities to arrest the suspect, we can build more on that information byfollowing him until we can get more information on him/her and his/her organization.
One member told the group that he agrees with the formation of a committee to tackle the issue ofterrorism, but it must be done at the highest level and the representatives must be the head of eachdepartment who can make a decision on behalf of their departments. He also voiced his opinion that
intelligence information can be shared but we must know how, when and to whom the intelligence
information can be disseminated.
One member of the group then reminded us that the sharing of intelligence information cannot be done if
there is no trust and a give and take principle among the agencies. Therefore, each agency concerned withsecurity issues must build trust with other agencies and realize that the sharing of information is for the
benefit of the nation. His opinion was shared by another group member who observed that almost all
intelligence agencies or those who work to gather intelligence information, irrespective of their agency ororganization, will always try to protect the confidentiality of the information. This makes them feel insecure
if they have to share the information with others. But on the other hand, if we focus too much on protecting
the confidentiality of the information and do not want to share it, the information will die and be useless as it
cannot be developed more. Therefore, as that member said, trust among agencies concerned must be built
and developed.

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He further added that based on his experience, the reason why the agencies concerned do not want toshare information that they have is due to bureaucratic sectionalism. He felt that this reason cannot be
accepted. But if the reason for not sharing the information is to protect the confidentiality of the sources of
the information, then it can be accepted. However, by sharing information, he feels that it does not have tocompromise the informant. Therefore, a lot of effort needs to be made to solve this issue.
This problem of sharing of information may be different from one country to another and maybe othercountries have had this kind of problem. One member told the group that in his country, all agencies
concerned are working hand in hand to fight any problem or issues which will affect the stability of thenation politically, economically and socially. This includes the sharing of information. One member also said
that his country has cooperation among the agencies concerned.
One member raised a question on the proper channel to disseminate information especially among police
around the world. According to her, immigration and customs agencies have their own international agency
which deals with this matter. One member replied that Interpol performs this function. And in answer toanother question raised by the member, he said that if a country knows that a wanted terrorist worldwide ishiding in one country, the authorities in that country can either channel the information to Interpol or arrest
that person immediately for further action. Another member informed the group that he had visited Interpol
once and found that they had insufficient staff. He also found that the exchange of intelligence information on
terrorists is normally done bilaterally among countries and not multilaterally.
According to another member, one way to solve the problem of the sharing of information is by having an
intensive and strong police-community partnership where they work hand-in-hand to eradicate this problem.
This partnership is important because most of the time, the criminals are hiding among the community. So
the community will have direct information on that criminal, and without their help in passing on therelevant information, the criminal cannot be traced and arrested easily. He further elaborated that his
country’s criminal justice system, which consists of the community, the police, the prosecution, the courts
and the corrections agencies, really help and are effective towards the attainment of a healthy and peacefulsociety.
At the end of the discussion the group agreed that one of the coordination and cooperation measuresneeded to fight terrorism is information sharing and when we have enough information, to carry out an
investigation and then to prosecute the offender. The group also agreed that in order to minimize the risk ofpotential terrorist attacks, all agencies and organizations concerned must always discuss regularly the action
to be taken to prevent the action, and what action to take if an incident occurs. One of the methods is toconduct drills or exercises in specific areas which are vulnerable to terrorist attack.

B. Law Enforcement Cooperation between States
With regard to the issue of law enforcement cooperation between states, all the group members are of
the same opinion that all the 13 Conventions of the United Nations have laid down the necessary measureson the issues of mutual assistance in criminal matters and extradition to be adopted by all countries that
acceded to it. Therefore, it is up to the each country, according to their capability and situation, to adopt themeasures suggested in those conventions.
When discussing more on the issue of cooperation between states, one member mentioned that in his
country, the government has formed a special agency known as the Transnational Crime Centre with themain purpose of sharing information between states that have diplomatic relations with his country. He gave
one recent example where a national of a foreign country was arrested in his country based on informationthat he was involved in a criminal activity in that country. The information was obtained from that country’s
authorities through this centre. That criminal is now waiting to be extradited to that country.
Another member told the group that his administration is a member of a World Customs Organization
where one of its missions is to assist members in their efforts to meet the challenges of the modern
business environment and adapt to changing circumstances (including the terrorism threat), by promoting
communication and co-operation among members and with other international organizations, and by
fostering integrity, human resource development, transparency, improvements in the management andworking methods and the sharing of best practices. Through this organization, his administration cooperates

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and coordinates with other member countries in the sharing and exchange of information and assistance incustoms matters. He further informed us that this organization has also established regional intelligenceliaison offices with the purpose of cooperation in regard to intelligence, and his administration is a member
for the Asia-Pacific region.

VI. CONCLUSION
The group agreed, respecting each country’s legal regime, and the process of prevention, detection,
investigation and prosecution of terrorist acts, there is a clear determination to face this crime. Moreover,the cooperation and exchange of information among each country’s agencies will help assure the preventionof these terrorist activities. Therefore, the trust among local agencies to share such information should also
be fostered among agencies of different states by co-operating both bilaterally and at a regional level, so thatthe threat of terrorism will be reduced to a minimum.
The group also reflected on the existing Conventions which obliged countries to implement thenecessary measures in order to combat terrorist activities. At the same time the group understands that
there are countries that have economic resources to implement these measures. Whereas other countries
limited resources inhibit them implementing these measures to the fullest extent. Yet they are aware of theimportance of these measures and are willing to cooperate in this regard.
Therefore, we should go back and look at the aut dedere aut judicare principle which is stated in all the
12 Conventions of the United Nations. This means in simple words that the signatory countries are obliged
either to extradite or prosecute the offender. If this is applied among the states as a sign of cooperation andsolidarity, then we will all contribute to live in a peaceful and more prosperous society in our respected
countries and also in the world.

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PART TWOWork Product of the Eighth International Training Course on Corruption
Control in Criminal Justice

UNAFEI

COUNTRY REPORT: BANGLADESH
Golam Shahriar Chowdhury*
I. HISTORICAL BACKGROUND
A. Corruption and Early Measures
1. Formation of Enforcement Branch
Corruption is not a new problem for Bangladesh as it was officially recognized many years before thecountry’s independence in 1971. During the British rule, corrupt practices were detected in the Food
Department and as such, in 1944, the Enforcement Branch was formed in the Police Department to fightsuch corruption.
2. The First Act against Corruption
Enactment of the first Act against corruption was made in 1947 under the title the Prevention of
Corruption Act. As there was no investigating agency other than the police, under the Act, certain offenceswere declared as offences of corruption and those were made cognizable for the police to investigate. The
Police Department was entrusted to investigate such corruption cases until the establishment of the Bureauof Anti-Corruption.
3. Establishment of the Bureau of Anti-Corruption
As the Police Department failed to handle corruption properly, the then Government felt the need toestablish a separate agency to fight corruption. For that purpose the Anti-Corruption Act was passed in 1957
and the Bureau of Anti-Corruption was established under the Act. The Bureau continued to function evenafter 32 years of independence of Bangladesh. Despite the continuous existence of the Bureau, corrupt
practices were never under control, rather, widespread corruption turned into the single biggest roadblock
towards economic development. The failure of the Bureau is the ultimate result of a lack of commitment tofight corruption. In addition to that, the Bureau used to follow a primitive approach in its fight against
corruption. The Agency did not have modern facilities. Practically, there was no facility for the training ofinvestigators. There was very little scope for their promotion. To start an enquiry or a case they had to getprior approval from the authority. Thus the authority had total control over the functioning of the Bureau.
The investigators could investigate only those cases that the authority desired.

B. Rampant Corruption and Establishment of Anti-Corruption Commission
Rampant corruption had a very adverse effect on the economy and badly affected the general people andtherefore, they wanted to get rid of the evil of corruption. As such they raised their voice against it.
In such a situation, the major political parties were compelled to make political pledges before the generalelection of 2001 to establish an independent anti-corruption commission/council. The Bangladesh Nationalist
Party won the general election and formed the government.
According to its election pledge the government established the independent Anti-Corruption
Commission under the Anti-Corruption Act of 2004. The Commission consists of three Commissioners. Oneof them has been made Chairman who acts as the Chief Executive. The Commission is independent inexecuting its duties and responsibilities. But the Government is to provide the organogram (organizational
structure) and the budget. As the Government has not yet provided the organogram, the Commission is yet
to get a good start.

II. THE OFFENCES OF CORRUPTION
A. Offences under the Anti-Corruption Commission Act, 2004
Section 19 of the Anti-Corruption Commission Act, 2004
Special powers of the Commission in respect of inquiry or investigation(i) In respect of any inquiry or investigation into allegations of corruption the Commission shall* District Anti-Corruption Officer, Anti-Corruption Commission, Bangladesh.

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have the following powers, namely: a) Summons witnesses, ensure their appearance and interrogate them under oath.
b) Discover and present any document.
c) Take evidence under oath.
d) Call for public records or its certified copies from any court office.
e) Issue warrants for the interrogation of witnesses and the examination of documents.
f) Any other matter required for realizing and fulfilling the aims and objectives of this law.
(ii) The commission may require any person to furnish information in matters relating to any
inquiry or investigation and any person so directed is obliged to furnish information available tohim.
(iii) Any person obstructing an official legally empowered by the commission or a commissioner inthe exercise of his powers under this sub-section (1) or any person deliberately violating anyorder given under that sub-section commits a punishable offence is liable to a term of
imprisonment of not more than three (3) years or a fine or both.
Section 26 of the Anti-Corruption Act, 2004
Declaration of Properties(i) If the Commission is satisfied on the basis of its own information and after necessary
investigation that any person or any other person on his behalf is in possession or has obtained
ownership of property not consistent with his legal sources of income then the commission
through an order in writing shall ask that person to submit a statement of assets and liabilities in
the manner determined by the commission and to furnish any other information mentioned inthat order.
(ii) If any person a) after having received an order mentioned in sub-section (1) fails to submit the written
statement or furnish the information accordingly or submits any written statement orprovides any information that is false or baseless or there are sufficient grounds to doubt
their veracity orb) submits any book, account, record, declaration, return or any document under sub-section(1) or gives any statement that is false or baseless or there are sufficient grounds to doubt
its veracity, then that person will be sentenced to a prison term of up to three (3) years or afine or both.
Section 27 of Anti-Corruption Commission Act, 2004
Possession of Property in Excess of Known Sources of Income(i) If there are sufficient and reasonable grounds to believe that a person in his/her own name or
any other person on his/her behalf is in possession and has obtained ownership of moveable or
immovable property through dishonest means and the property is not consistent with the
known sources of his/her income and if he/she fails to submit to the court during trial asatisfactory explanation for possessing that property, then that person shall be sentenced to a
prison term ranging from a minimum of three years to a maximum of ten years imprisonment,
and these properties shall be confiscated.

B. Offences under the Prevention of Corruption Act, 1947
Section 5, Subsection (2)Any public servant who commits or attempts to commit criminal misconduct* shall be punishable withimprisonment for a term which may extend to seven years, or with a fine or with both.
*Criminal Misconduct (Section 5, subsection (1) of the Prevention of Corruption Act)
A public servant is said to commit the offence of criminal misconduct:a) if he(habitually) accepts or obtains or agrees to accept or attempts to obtain from any person for
himself or for any other person, any gratification (other than legal remuneration) as a motive or
reward such as is mentioned in section 161 of the Penal Code, orb) if he (habitually) accepts or obtains or agrees to accept or attempts to obtain for himself or for any
other person, any valuable thing without consideration or for a consideration which he knows to beinadequate, from any person whom he knows to have been or to be, or to be likely to be concerned inany proceeding or business transacted or about to be transacted by him, or having any connection
with the official functions of himself or of any public servant to whom he is subordinate, or from any
person whom he knows to be interested in or related to the person so concerned, or

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c)
d)
e)

if he dishonestly or fraudulently misappropriate or otherwise converts for his own use any property
entrusted to him or under his control as a public servant or allows any other person so to do, or
if he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains or
attempts to obtain for himself or for any other person any valuable thing or pecuniary advantage, or
if he, or any of his dependents, is in possession, for which the public servant cannot reasonably
account, of pecuniary resources or of property disproportionate to his known sources of income.

C. Offences Under Sections 161-169, 217, 218, 408, 409, 477A and Sections 109, 120(B) and 511 of thePenal Code, 1860 (Act XLV of 1860)
Section 161
Whoever, being or expecting to be a public servant, accepts or obtains, or agrees to accept, or
attempts to obtain from any person, for himself or for any other person, any gratification whatever,other than legal remuneration, as a motive or reward for doing or forbearing to do any official act orfor showing or for bearing to show, in the exercise of his official functions, favour or disfavour to any
person, or for rendering or attempting to render any service or disservice to any person, with thegovernment or legislature, or with any public servant, as such, shall be punished with imprisonmentof either description for a term which may extend to three years, or with a fine, or with both.
Section 162
Whoever, accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself
or for any other person, any gratification whatever, as a motive or reward for inducing, by corrupt orillegal means, any public servant to do or to forbear to do any official act, or in the exercise of theofficial functions of such public servant to show favour or disfavour to any person, or to render or
attempt to render any service or disservice to any person, with the Government or Legislature, orwith any public servant, as such, shall be punished with imprisonment of either description for aterm which may extend to three years, or with a fine, or with both.
Section 163
Whoever, accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself
or for any other person, any gratification whatever, as a motive or reward for inducing, by theexercise of personal influence, any public servant to do or to forbear to do any official act, or in theexercise of the official functions of such public servant to show favour or disfavour to any person, orto render or attempt to render any service or disservice to any person, with the Government orLegislature, or with any public servant, as such, shall be punished with simple imprisonment for aterm which may extend to one year, or with a fine, or with both.
Section 164
Whoever, being a public servant, in respect of whom either of the offences defined in the last two
preceding sections is committed, abets the offence, shall be punished with imprisonment of either
description for a term which may extend to three years, or with a fine, or with both.
Section 165
Whoever being a public servant, accepts or obtains, or agrees to accept, or attempts to obtain, forhimself, or for any other person, any valuable thing without consideration, or for a consideration
which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be
likely to be concerned in any proceeding or business transacted or about to be transacted by such
public servant, or having any connection with the official function, for himself or of any public servant
to whom he is subordinate, or from any person whom he knows to be interested in or related to theperson so concerned, shall be punished with imprisonment of either description for a term which
may extend to three years, or with a fine, or with both.
Section 165A
Whoever abets any offence punishable under section 161 or section 165 shall, whether the offence
abetted is or is not committed in consequence of the abetment, be punished with the punishment
provided with the offence.
Section 165B
A person shall be deemed not to abet an offence punishable under section 161 or section 165 if he isinduced, compelled, coerced, or intimidated to offer or give any such gratification as is referred to in

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section 161 for any of the purposes mentioned therein, or any valuable thing without consideration,or for an inadequate consideration, to any such public servant as is referred to in section 165.
Section 166
Whoever being a public servant, knowingly disobeys any direction of the law as to the way in which
he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that hewill, by such disobedience, cause injury to any person, shall be punished with simple imprisonment
for a term which may extend to one year, or with a fine, or with both.
Section 167
Whoever, being a public servant, and being, as such public servant, charged with the preparation ortranslation of any document, frames or translates that document in a manner which he knows or
believes to be incorrect, intending thereby to cause knowing it to be likely that he may thereby
cause injury to any person, shall be punished with imprisonment of either description for a term
which may extend to three years, or with a fine, or with both.
Section 168
Whoever, being a public servant, and being legally bound as such public servant not to engage intrade, engages in trade, shall be punished with simple imprisonment for a term which may extend to
one year or with a fine, or with both.
Section 169
Whoever, being a public servant, and being legally bound as such public servant not to purchase orbid for certain property, purchases or bids for that property, either in his own name or in the name ofanother, or jointly, or in shares with others, shall be punished with simple imprisonment for a term
which may extend to two years or with a fine, or with both; and the property if purchased shall be
confiscated.
Section 217
Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which
he is to conduct himself as such public servant, intending thereby to save, or knowing it to be likelythat he will thereby save, any person from legal punishment, or subject him to a less punishment
than that to which he is liable or with intent to save, or knowing that he is likely thereby to save, any
property from forfeiture or any charge to which it is liable by law, shall be punished withimprisonment of either description for a term which may extend to two years, or with a fine, or withboth.
Section 218
Whoever, being a public servant, and being as such public servant, charged with the preparation of
any record or other writing, frames that record or writing in a manner which he knows to beincorrect, with intent to cause, or knowing it to be likely that he will thereby cause, loss or injury to
the public or to any person, or with intent thereby to save, or knowing it to be likely that he will
thereby save, any person from legal punishment, or with intent to save, or knowing that he is likely
thereby to save, any property from forfeiture or other charge to which it is liable by law, shall bepunished with imprisonment of either description for a term which may extend to three years, orwith a fine, or with both.
Section 408
Whoever, being a clerk or servant or employed as a clerk or as a servant, and being in any manner
entrusted in such capacity with property, or with any dominion over property, commits criminal
breach of trust in respect of that property, shall be punished with imprisonment of either description
for a term which may extend to seven years, and shall also be liable to a fine.
Section 409
Whoever, being in any manner entrusted with property, or with any dominion over property, in his
capacity of a public servant or in the way of his business as a banker, merchant, factor, broker,
attorney or agent, commits criminal breach of trust in respect of that property, shall be punished withimprisonment for life, or with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to a fine.

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Section 477A
Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer orservant, wilfully, and with intend to defraud, destroys, alters, mutilates or falsifies any book, paper,
writing, valuable security or account which belongs to or is in the possession of his employer, or
have been received by him for or on behalf of his employer, or wilfully, and with intend to defraud,
makes or abets, the making of any false entry in, or omits or alters or abets the omission oralteration of any material particular from or in, any such book, paper, writing, valuable security or
account, shall be punished with imprisonment of either description for a term which may extend toseven years, or with a fine, or with both.
Section 109
Whoever, abets any offence shall, if the act abetted is committed in consequence of the abetment,
and no express provision is made by this Code for the punishment of such abetment, be punishedwith the punishment provided for the offence.
Section 120B
(i) Whoever is a party to a criminal conspiracy to commit an offence punishable with death,imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where
no express provision is made in this Code for the punishment of such a conspiracy, be punishedin the same manner as if he had abetted such offence.
(ii) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit anoffence punishable as aforesaid shall be punished with imprisonment of either description for aterm not exceeding six months, or with a fine or with both.
Section 511
Whoever attempts to commit an offence punishable by this Code with imprisonment for life or
imprisonment, or to cause such an offence to be committed, and in such attempt does any act
towards the commission of the offence, shall, where no express provision is made in this Code forthe punishment of such attempt, be punished with imprisonment of any description provided for theoffence, for a term which may extend to one half of the longest term of imprisonment provided forthat offence or with such fine as is provided for the offence, or with both.

III. INVESTIGATIVE METHOD
A. Relevant Laws
The relevant laws for investigation of corruption cases are the Criminal Procedure Code (Cr PC), 1898
and the Anti-Corruption Commission Act (ACC Act), 2004. The former one is the general procedural law forinvestigation and trial of criminal cases. The latter one is the special law against corruption. As far as
investigations of corruption cases are concerned, if any conflict between the provisions of the aforesaid Acts
is found, the provision of the latter Act will prevail. The Cr PC describes under sections 154 to 173 how
offences are registered with police stations, investigations are made and the reports of investigations are
submitted before the court for trial. The Anti-Corruption Commission Act dictates an investigator to conduct
an enquiry before lodging/registering a First Information Report (FIR) stating the offence(s) committed. If
prima facie evidence is established in enquiry, an FIR is lodged with the police station and thereafter theformal investigation starts under the provisions of the Cr PC. An investigation ends with submission of an
Investigation Report before the court.
B. Functions of an Investigator During Investigation
The functions performed in an enquiry and an investigation are identical. The following functions are
performed during an enquiry and an investigation:(i)Collection and seizure of relevant records.
(ii)
Search for relevant records, if not collected through the normal process.
(iii) Perusal/examination of the records.
(iv) Recording deposition of the witnesses.
(v)
Recording statement of the accused.
(vi) Obtaining the opinion of a handwriting expert, if required.
(vii) Obtaining an assessment of the value of properties by third parties, if required.
(viii) Arresting the accused, if required.
(ix) Visiting the places of occurrence, if required.

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C. Sequence of Investigation(1) Receiving
allegations/screening/decision.

(2) Selection/
appointment ofenquiry officer/team.

(3) Enquiry andsubmission of enquiry
report with specificsuggestion.

(6) Selection/
appointment ofinvestigating officer.

(5) Recording of FIR.

(4) DecisionFIR/Close the file/Re-enquiry(7) Investigation andsubmission of Memoof Evidence withspecific suggestions.

(8) Opinion of Public
Prosecutor(9) DecisionCharge Sheet/Final
Report/Re-investigation(10) Submission ofCharge Sheet/
Final Report before
the Court

D. Investigating Agencies and their Jurisdictions
Prior to the enactment of the Anti-Corruption Commission Act, apart from the Bureau of AntiCorruption, the police could investigate certain corruption cases. But the provision of section 20 sub-section(1) of the aforesaid Act has made the Commission the only investigating authority having jurisdiction over allof Bangladesh to investigate offences of corruption.
IV. THE JUDICIARY AND THE SPECIAL ANTI-CORRUPTION COURTS
A. The Supreme Court
1. The Appellate Division
The Appellate Division has jurisdiction to hear and determine appeals from judgements of the High Court
Division. The Appellate Division can make rules of procedure of each division and any subordinate court.

2. The High Court DivisionThis is an independent court with both appellate and original jurisdiction. It hears and determines appeals
from judgements of the subordinate courts. It has original jurisdiction to hear Writ Petitions under Article
102 of the Constitution. It has further original jurisdiction in respect of company and admiralty mattersunder statutes.

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B. The Subordinate Courts and Tribunals
1. Civil Courts
2. Criminal Courts(i) The Courts of Session(ii) Courts of Metropolitan Session(iii) Special Courts/Tribunals (Criminal)(iv) Court of Metropolitan Magistrate(v) Court of Magistrate

C. Special Judges/Courts to Try Corruption Cases
Under the provisions of the Criminal Law Amendment Act, 1958 corruption cases are triable by Special
Judges only. A Session Judge, an Additional Session Judge and an Assistant Session Judge could be appointed
as Special Judges. The Session Judges, the Additional Session Judges and the Assistant Session Judge of all
districts and metropolitan areas have the authority to try corruption cases within their territorial
jurisdictions in addition to their original jurisdictions as Judges of Civil Courts and Criminal Courts. Besides,
there are twenty-one Special Courts established exclusively for the trial of corruption cases.
D. The Sequence of Trial System(1) Recording of FIR with
Police Station.

(2) Sending the FIR toa Magistrate (by the
Police Station).

(3) Opening of a fileagainst the FIR (bythe Magistrate).

(6) Special Judge opens
a file against Special
Case Register, frames
charges against accusedand starts trial.

(5) Sending the Filealong with FIR,
Charge Sheet/Final
Report and exhibits tothe trial court (by theMagistrate).

(4) Submission of Charge
Sheet or Final Report
and the exhibits (bythe investigating
officer).

V. CURRENT PROBLEMS
A. Problems at the Investigative Stage
1. Lack of Training Opportunities for the Investigators
Proper investigation requires knowledge and skill. The knowledge about the relevant Act, rules,
regulations, procedure and other mechanics is essential. Such knowledge improves the skill. AntiCorruption investigators have to investigate alleged corruption of officials of different offices, functions ofwhich are different also. They should also know the technologies used by these offices. The investigators
are always overburdened. As such training would develop their knowledge & skill as well as provide sometime to analyze their performance compared with other participants and help them find the areas in which
improvement is needed. The Bureau did not have its own training institute and the budget for training wasinsufficient to arrange appropriate training for its investigators.
2. Insufficient Logistical Support
Efficient investigation calls for a timely response. The Bureau could seldom provide transport facilities at
the time of urgent need. The investigators had to make their own arrangements. Such arrangements would
add to the expenses of the poorly paid investigators. Naturally, they could not always give their timely
attention. In addition, modern equipment is needed for efficient investigation. The Bureau could not provide

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such equipment to its investigators due to a paucity of funds. The Government is the provider of the budget
to the Commission. If the Government fails to provide an adequate budget to the Commission, suchproblems will continue.
3. Lack of Promotional Opportunities for the Investigators
A good career plan encourages people to work efficiently. The Bureau had no career plan for its
investigators. Most of the investigators worked in the same post for ten years or more. That was
discouraging for them and made them indifferent to performing well which ultimately hampered theperformance of the Bureau. If the Commission fails to devise a good career plan for its investigators, asimilar situation will prevail again.
4. Non-cooperation from Different Government Offices
Most of the Offices did not provide proper cooperation to the investigators while collecting records orinformation related to the alleged corruption. They used to delay in providing such records or information
which would hamper timely investigation.
5. Appointment of Inexperienced People as Supervising Officers to the Investigators
One of the major problems the Bureau faced was the control by the civil bureaucrats who used to beappointed in the key posts without having first-hand experience of investigation of corruption cases. To keep
the key posts earmarked for them, they were never interested in formulating a career plan for theinvestigators.
6. Dishonesty and Compromising Attitude of some Investigators and Supervising Officials
Some investigators and their supervising officials were found to be dishonest in performing their duties.
They used to compromise with the accused of different cases and distort the reports in their favour.
7. No Reward and No Punishment
The dishonest investigators and supervising officials were seldom given punishment for their alleged
dishonesty and compromising attitude. On the other hand, those investigators or supervising officials who
performed honestly and efficiently were hardly ever rewarded for their sincerity. As the investigators’ pay
was very low, such recognition would have encouraged them.
8. Problems Related with Legal Provisions(i) Due to the provision of the existing criminal procedural law, the anti-corruption investigators have tolodge an FIR with the police station and submit the charge sheet or the final report before amagistrate who do not have any active role as far as anti-corruption activities are concerned. Suchunnecessary involvement of the police station and magistrate only delays the process.
(ii) According to the existing provisions of the criminal procedural law, in order to collect bank related
records, the investigators are compelled to get prior approval of the District Judge. Such provisiondelays investigation.
(iii) The provisions of the Anti-Corruption Commission Act do not allow an investigator to arrest a bribetaker during the enquiry period. Such provision would not help curb corruption.

B. Problems at the Trial Stage
1. Lack of Training Opportunities for Judges and Prosecutors
The special judges and the prosecutors are not properly trained in anti-corruption matters. Such lack oftraining sometimes creates problems in the process of trial.
2. Lack of Coordination between the Investigators and the Prosecutors
The investigators and prosecutors do not have a good understanding due to a lack of coordination and assuch the prosecution team does not achieve the desired success in many cases.

3. Overburden of Duty and Delayed Decisions
The same judge has to perform as a District Judge, a Sessions Judge, and Special Judge of other special

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criminal courts/tribunals, including a Special Judge of corruption cases. Therefore, he is always
overburdened. Despite all his sincerity he cannot ensure a timely trial of the cases. As such the decisions
are normally delayed.
4. Stay Orders and Delayed Decisions
The High Court has the authority to make a stay order against the proceedings of an anti-corruption case
if an accused files a writ petition or criminal miscellaneous case stating violation of his/her constitutionalrights. However, the judges of the High Court are also overburdened. Hence, once the proceedings of a caseare stayed, it takes a long time to get the judgment on the writ petition. Ultimately, the judgment of the caseis delayed.
5. Irregular Service for Public Prosecutors
There is no regular prosecutorial service for the public prosecutors. The Attorney General (chief publicprosecutor of the country) and other public prosecutors are appointed according to the desire of the party inpower. Therefore, each time the opposition comes to power, the old set of public prosecutors does not
generally get reappointed and a new set of public prosecutors are appointed. Such changes disturb theproceedings of anti-corruption cases.

VI. PROBABLE SOLUTIONS TO THE PROBLEMS IDENTIFIED
A. At the Investigative Stage
1.
2.
3.
4.
5.
6.
7.
8.

Arrangement of proper and regular training.
Adequate supply of logistical support.
Creation of promotion opportunities under a career plan for the investigators.
Strict application of legal provisions against the offices found to be non-cooperative.
Appointment of experienced officers as supervisors of the investigators.
Strict application of the provisions of the service rules.
Arrangements for the reward of excellent performance.
Amendment of legal provisions.

B. At the Trial Stage
1.
2.
3.
4.
5.

Arrangement of proper and regular training for the Judges and the Prosecutors.
Arrangement for coordination between the investigators and the prosecutors.
Establishment of more special courts to try corruption cases and quick trial courts.
Amendment of legal provisions regarding acceptance and settlement of writ petitions and criminal
miscellaneous cases against corruption cases.
Regular prosecutorial service.

VII. GLOBAL FIGHT AGAINST CORRUPTION AND BANGLADESH
Bangladesh is not a signatory to the United Nations Convention against Corruption. It should join theConvention for its own interest, particularly in order to fight money laundering offences. Money laundering
has not been defined as an offence against corruption. There is a separate Act for money laundering offences
titled the Anti-Money Laundering Act, 2002.

VIII. GENERAL MEASURES FOR PREVENTION OF CORRUPTION
A. Prevention through Research/Review
Under the provisions of section 17 clause (e) of the Anti-Corruption Commission Act, 2004 theCommission would review the legally accepted measures for preventing corruption and under clause (f) it
would carry out research as to how corruption can be prevented.
B. Prevention through Promoting Values and Building up Mass Awareness
Under the provisions of section 17 clause (g) of the Anti-Corruption Commission Act, 2004 theCommission would promote the values of honesty and integrity in order to prevent corruption. It would also
take measures to build up mass awareness against corruption.

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C. Seminars, Symposiums and Workshops, etc.
Under the provisions of sections 17 clause (h) of the Anti-Corruption Commission Act, 2004 theCommission would arrange seminars, symposiums, workshops etc. that would help prevent corruption.
IX. CONCLUSION
The problems related to investigation and trial can be addressed if proper measures are taken.
Nevertheless, it is almost impossible to fight corruption properly, if adequate support from the government
and its agencies are not provided. Such support should go on uninterrupted. And that is why political
goodwill is pivotal in order to properly address corruption. For the greater interest of the country and thepeople, the political parties must reach a gentlemen’s agreement as to whoever the accused is/are,he/she/they must be brought to book irrespective of his/her/their political affiliation and they must provide
all required support towards the fight against corruption.

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COUNTRY REPORT: THE REPUBLIC OF THE FIJI ISLANDS
Aliti Kiji Choi Bavou*
I. INTRODUCTION
The seriousness of a country’s desire to eradicate corruption can be judged by the laws it passes and theactions of its government in implementing them. It has been suggested that the fight against corruption iscomposed of three elements – an effective anti-corruption legal infrastructure, international partnerships formutual legal assistance and the political will to make it work.
Fighting corruption in an effective and sustainable manner firstly requires a country to look inwards at
the fundamental causes of corruption in its society. This will allow the design and implementation of anational anti-corruption programme that is tailored to suit the circumstances of a particular country and thatis sufficiently flexible to cover and deal with the full range of corruption occurring or likely to occur within
its society. Secondly the implementation of anti-corruption measures will need a firm commitment fromgovernment, the private sector and civil society.

II. TREND, CRIMINAL SITUATION OF CORRUPTIONOver the past two decades Fiji has had a spate of instances of mismanagement of public funds highlighted
by the media. Allegations of government corruption and of judicial impropriety went to the very heart oftransparency and good governance in Fiji.
Although Fiji has long felt the impact of corruption since independence, the political will to address it has
been a more recent development largely due to the high incidences of bribery and corruption in the public
sector in recent times.
In the late 1980s the National Bank of Fiji (NBF) saga set the tone for the number of ministerial
investigations, inquiries or audits, which highlighted bribery and corruption in what was one of Fiji’s largest
financial scandals in decades.
The NBF was established as a government-owned commercial bank in 1976. Four years after the 1987
Coup, the NBF introduced new services, trebled staff (mainly indigenous) and quadrupled advances mainly
to indigenous Fijians, where the lending criteria favoured privileged groups. By 1996 NBF’s bad and doubtful
debts were estimated to cost the country about $200 million dollars - a debt that was taken over by thegovernment of Fiji causing much bitterness in a small ethnically divided nation. Those who carried the tax
burden were not necessarily the same persons who benefited from the poor quality of lending.
More recently the Ministry of Agriculture lost thousands of dollars under its Agricultural Affirmative
Action Plan for indigenous Fijians and Rotumans. The Ministry implemented the affirmative action plan in2000 for indigenous Fijians and Rotumans to enhance their participation in agriculture. The audit
investigation revealed that there was no system of authorization, lack of forecasting and planning, poor
channels of communication and co-ordination and no means of performance monitoring and control. The
audit noted that there were no standard selection criteria or documented procedures for selecting farmers
for assistance and for monitoring them after assistance was provided. In the majority of cases, thePermanent Secretary, the Deputy Secretary and/or the Principal Accounts Officer approved the applications
without any technical assessment and evaluation by experts in the field located in various districts. Therewas much evidence of uneconomic purchases by the Ministry. No quotations were obtained and theinvestigation revealed that the majority of purchases were made from a single supplier whose prices on
average were twice as much as in other hardware shops. The audit found that the Ministry acquired goods
and services without issuing local purchase orders requiring authorization/approvals at different levels, andliabilities committed through such irregular practices ran in millions of dollars. This irregular practice isviewed as a deliberate attempt by the Ministry, particularly the Principal Accounts Officer, to violate
standard Government procurement procedures, thereby opening avenues for abuses. The special audit
further revealed that some local purchase orders issued to suppliers were open, leaving room for* Senior Legal Officer, Director of Public Prosecution Office, Fiji.

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manipulation by the supplier and/or the farmer, a practice contrary to the accepted procedures. The audit
further noted that no stock registers were maintained for receipts books, cheque books, purchase orders andrequisitions as they were sent direct to the divisions and centres by the printer, thus escalating misuse offunds. Finally, evidence exists to support purchases of items not covered by the plan (for example thepurchase of lap top computers, fax machines, generators, air compressors, spray guns, etc.). Investigations
are continuing with four senior civil servants and a businessman charged with fraud and corruption related
offences.

III. POLITICAL WILLIn 1999 the People’s Coalition Government was elected into office. Their manifesto promised agovernment that would be clean, open, accountable and just.
Several measures were proposed in this manifesto, which included;(i) Legislating a code of conduct for politicians, government ministers and other holders of high public
office to ensure accountability and transparency(ii) Enacting a Freedom of Information Act, a requirement of the Constitution and(iii) Establishing an independent anti-corruption commission
The Attorney General at that time Hon. Anand Singh instituted the Fiji Law Reform Commission, which
was referenced to inquire into fraud, bribery and corruption. The main aim of the reference was firstly togauge the nature, extent and scale of corruption in Fiji through wide consultations with various levels of thecommunity, institutions, non-governmental organizations (NGOs) and private individuals, and secondly toreview the current laws on corruption and the role of the “watchdog” institutions with a view to making
appropriate recommendations to better prevent and combat incidents of corruption.
This paper will reflect on the findings of the Fiji Law Reform Commission’s Bribery and Corruption
Report 2003, which was tabled in Parliament in November 2004.

IV. PERCEPTIONS OF CORRUPTION IN FIJI
The Law Reform Commission relied heavily on a report compiled by the Fiji Chapter of Transparency
International (TI - Fiji Chapter- Report], which highlighted perceptions of corruption in Fiji. These reports
were independently confirmed by the numerous submissions received by the Commission during its public
and private hearings.
The following are a summary of incidents of corruption highlighted in the TI (Fiji Chapter) Report.
1. Kickbacks
In the Immigration Department in the issuance of passports and work and residency permits.
2. Greasing the Palms
In the Land Transport Authority (LTA) involving the issuance of driving, minibus and taxi licenses and in
the certification of motor vehicles for roadworthiness; and in the Fiji Islands Revenue and Customs
Authority ( FIRCA), in tax assessments and its enforcement.
3. Nepotism
In the appointment, recruitment and promotion of public officers within the public service and executivesof state owned entities.
4. Rank Pulling and Queue Jumping
By well connected businessmen, traditional leaders and politicians
5. Unethical Decisions on Public Procurement and Government Contracts
Such as hiring of transportation and earth moving equipment for major public projects.

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6. Misuse/Abuse of Public Funds
In the claiming of allowances and in the issuance of Local Purchase Order (LPOs). As highlighted in the
Auditor General’s reports to Parliament.
7. Organizational Values
These include shared assumptions, beliefs and attitudes held by staff towards corruption and corrupt
activities which affect and influence the degree and extent, to which such illegal practices are tolerated andexposed
Bribery and corruption by their very nature are activities that occur in secret. Access to official
information is also limited and there is strong reluctance in Fiji to report such instances that individuals may
have witnessed. Furthermore, mechanisms or legislation to protect “whistleblowers” (i.e. those who havealerted authorities) are non-existent in Fiji thereby reinforcing the culture of silence.

V. RELEVANT AGENCIES AND INSTITUTIONS, AND THEIR JURISDICTIONSFiji currently does not have an anti-corruption agency. All criminal investigations are carried out by the
Fiji Police Force through its Criminal Investigation Department. Within the department an Anti-Fraud Unit
has been established which investigates fraud and corruption related offences.
The Director of Public Prosecutions Office
The office of the Director of Public Prosecutions has been in existence for over 35 years. In Fiji, unlike
most other similar jurisdictions, the Office enjoys a constitutional guarantee of independence. This is areflection of the importance of the Office in the maintenance of law and order and the achievement of good
governance in the State.
The office of the DPP, where appropriate, prosecutes criminal cases following an investigation by thepolice or other prosecution agencies.
Under the Constitution the DPP may:(i) institute and conduct criminal proceedings;(ii) take over criminal proceedings that have been instituted by another person or authority; and(iii) discontinue at any stage before judgment is delivered, criminal proceedings instated or conducted by
the DPP or another person or authority.
Sanction of the Director of Public Prosecutions is required pursuant to section 379 of the Penal Code forthe prosecution of a corruption related offence.

VI. EXISTING LEGISLATION & ASSOCIATED PROBLEMS
The primary source of criminal law in Fiji is found in the Penal Code. The rules that apply to issues ofcriminal procedure are contained in the Criminal Procedure CodeIn the absence of a stand-alone legislation for corruption, the key statutory provisions are contained in
two chapters of the Penal Code. Chapter 11 titled Corruption and Abuse of Office and Chapter 40 titled
Secret Commissions and Corrupt Practices.
In its enquiries the Commission received numerous generalized submissions that anti-corruption
provisions contained in the Penal Code were deficient and outdated. After careful consideration theCommission formed the view that with the exception of two offences namely Abuse of Office and Official
Corruption, the other offences in the Penal Code were rarely, if ever, investigated or charged by the police or
DPP’s office.
The most widely known section is section 106 of the Penal Code, which relates to persons employed in
the public service
Section 106 states:
Any person who

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RESOURCE MATERIAL SERIES No.71(a) Being employed in the public service and being charged with the performance of any duty by virtueof such employment corruptly asks for, solicits, receives or obtains or agrees or attempts to receiveor obtain, any property or benefit of any kind for himself or any other person on account of anythingalready done or omitted to be done or to be afterwards done or omitted to be done, by him in the
discharge of the duties of his office; or(b) Corruptly gives, confers or procures or promises or offers to give or confer or to procure or attempts
to procure to upon or for any person employed in the public service, or to upon or for any person orproperty or benefit of any kind on account of any such act or omission on the part of the person so
employed,Is guilty of a felony and is liable to imprisonment for seven years.
In State v Humphrey Chang HAC No 8/91 Jesuratnum J. stated that the prosecution must prove twoelements to establish an offence of official corruption; These are1.
2.

That the accused being employed in the public service received some “property” or “benefit” fromsome person; andThat the “benefit” or property was received “on account of” or in consideration for something doneor omitted to be done by the accused in the discharge of his duties

In State v Seruveveli Aisake Criminal Appeal No 6 of 1993 Fatiaki J. stated“It is not merely enough to prove that a favour had been shown by a civil servant in the discharge of
his duties or that a benefit or property had been received by the civil servant, additionally it must be
shown that the two elements are so linked in time and circumstances as to give rise to an irresistible
inference that the transactions was a corrupt one…. Needless to say it does not in my viewnecessarily follow that every payment or benefit conferred on a civil servant outside office hours is
unlawful per se. It is only unlawful, if there is a link between the payment and him doing somethingin pursuance of his public duty. The reward must relate to something done or omitted to be done inrespect of a matter in which his employer is concerned. In other words the offence of official
corruption lies not in showing favour to someone but rather in accepting a reward for doing so.”Section 107“Any person who being employed in the public service, takes or accepts from any person for the
performance of his duty as such officer, any reward beyond his proper pay and emoluments, or any
promise of such reward is guilty of a misdemeanour and liable to imprisonment for three years.”This section criminalizes the mere acceptance of any reward for the performance of his duty without
requiring proof of the existence of any official connection between the civil servant and the person giving the
reward.
Section 375 of the Penal Code375(1) For the purpose of this Chapter, the expression consideration includes valuable considerationof any kind; the expression “agent” includes any person employed by or acting for another; and theexpression “principle” includes an employer.
(2) A person serving under the [State] or under any town council or under any other public bodyhaving power to impose rates or entrusted with the expenditure of any Government funds or
grants, and a member of any such town council or other public body, is an agent within themeaning of this Chapter.
Section 376 If(a) any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any
person, for himself or for any other person, any gift or consideration as an inducement for
reward for doing or forbearing to do or for having done or forborne to do, any act in relation tohis principal’s affairs or business or for showing or forbearing to show favour or disfavour to any
person in relation to his principals affairs or business; or(b) Any person corruptly gives or agrees to give or offers any gift or consideration to any agent as

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an inducement or reward for doing or forbearing to do, of for having done or forborne to do, any
act in relation to his principal’s affairs or business, or for showing or forbearing to show favour
or disfavour to any person in relation to his principal’s affairs or business; or(c) any person knowingly gives to any agent, or if any agent knowingly uses with intent to deceive
his principal, any receipt or other document in respect of which the principal is interested, andwhich contains any statement which is false or erroneous or defective in any material particularand which to his knowledge is intended to mislead the principal,
He is guilty of a misdemeanour and is liable to imprisonment for two years or to a fine of six hundred
dollars.
Section 378
Presumption as to Corrupt Practices
378. Where in any proceedings against a person for an offence under this Chapter it is proved thatany money, gift or other consideration has been paid or given to or received by a person in theemployment of the State or any Government department or a town council… or other public bodyhaving power to impose rates or entrusted with the expenditure of any Government funds or grants,
by or from a person or agent of a person holding or seeking to obtain a contract from the State or any
Government department or town council or other public body having power to impose rates, themoney, gift or consideration shall be deemed to have been paid or given and received corruptly as
such inducement or reward as is mentioned in this Chapter unless the contrary is proved
Chapter 40 offences have a wider scope, which extends to the private sector as well as statutory bodies
and local government officials

VII. CURRENT PROBLEMS AND MOVES RELATING TO CORRUPTION IN FIJI
A. Legislation(i)
The drafting style is complex, difficult to understand and analyze. Provisions are scattered in the
Penal Code.
(ii)
There is a clear identify between section 376 offence and s.106 offences which could give rise to
duplicity.
(iii)
The broad concept of corruption should be the key issue borne in mind rather than the narrow
manifestation of bribery.
(iv)
Section 106 is limited to bribery situations and does not cover nepotism, queue jumping and“kerekere” (Fijian term for borrowing or asking).
(v)
The scope of corruption in s.106 is limited in that an act which does not link the benefit to theofficial act is not corrupt. The core of section 106 is the link between the “benefit”, “reward” andthe “act” the requested mens rea must relate to the receivers knowledge or belief as to theexistence of the link.
(vi)
The distinction between public officer and non-government officer should be abolished and thelegislation should adopt a more neutral description such as agent or person.
(vii) There should be a single generic term or expression to replace the variety of expressions to befound in the Penal Code, which refer to the corrupt transaction. Section 106 uses the expression“any property or benefit of any kind” Section 107 uses the expression “reward beyond his proper
pay and emoluments”; and Section 376 uses the expressions “gift” and “considerations”.
Arguably these definitions do not include sexual favours or future promises to process favourable
tax returns, for example.
(viii) Cultural exceptions. The giving of and receiving of gifts and valuable benefits is a common
occurrence in many areas of business and arguably is traditional to Fijian culture and protocol.
Queue jumping the “who you know” syndrome and helping people from your own family orprovince are all real problems in Fiji. There is a strong public interest in enacting laws which
prevent public officials from showing any kind of favour at all whether it is for personal gain or not.
B. Problems and Solutions at the Investigative Stages
In Fiji the police are primarily responsible for all criminal investigations but the consent of the Director of117

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Public Prosecutions is required for the prosecution of certain criminal offences, including corruption. The
DPP may request the police to investigate suspected criminal offences but it cannot order the police to doso. The Director of Public Prosecutions has no authority to direct or supervise police investigations because
the independence of the Police Commissioner in operational matters is constitutionally protected. Even in
those cases where the decision to charge an accused person requires the prior consent of the DPP thedecision is inevitably coloured by the quality of the police investigation.
Financial scams over the years have undoubtedly shaken public confidence in the police and otherregulatory institutions to effectively investigate and punish those at fault. Apart from the difficulties with thelegislation, there are concerns about the lack of skills and resources in the police force for investigating
crimes of serious fraud and corruption
The very nature of the crime of corruption makes any investigation very difficult.
1. A Secret Crime
Each corrupt transaction involves at least two parties. The person who offers the bribe and the person
who accepts the bribe. Both derive mutual benefit. Corruption therefore involves secrecy and concealment
making it difficult to detect.
2. A Crime that Leaves No Trace
Unlike other crimes there is no obvious crime scene where the perpetrators of corruption effect thecommission of an offence. With new technology there is no need for the corrupt to meet.
3. A Victimless Crime
There is usually no identifiable victim.
4. A Culture of Silence
A further aspect making it difficult to investigate is the pervasive ‘culture of silence’ in Fiji. Where
patronage is tied to family race and culture, silence is said to be the golden rule. A culture of silence provides
a perfect medium for corruption to take hold and flourish.
5. Gathering Evidence
Government must be willing to consider granting special powers to investigating authorities to enhancetheir operational effectiveness. However, granting special powers of investigation can be a sensitive issue inFiji due to certain constitutional provisions e.g. electronic surveillance may encounter problems with s.
37(1) of the Constitution “the right to privacy of personal communications”.
Society must decide where the right balance lies between competing interests.
6. Undercover Operations
With the relatively small population of Fiji with almost limitless extended relationships and acquaintancesamongst its people, there seems to be little opportunity to undertake undercover operations with any
guarantee of success.
7. No Whistlblower Legislation
The investigation of corruption and fraud related matters are greatly assisted with two pieces oflegislation The Proceeds of Crime Act 1997 which allows for restraint and confiscation proceedings to betaken against a person accused of a serious crime who has fled Fiji. The Act also allows us to assist anothercountry by restraining the disposal of a criminal’s property found here and to enforce an order made by theforeign country for the confiscation of the property or to take proceedings in our courts against suchproperty. The Mutual Assistance Act is generally resorted to in an effort to obtain admissible evidence of acrime that has been committed and facilitates the enforcement of a forfeiture order made under theProceeds of Crime Act in a foreign country with whom we have an agreement and vice versa. It is carriedout under legislation and bilateral or multilateral treaty.

C. Problems and Solutions at the Trial Stage
1. Impediments to prosecution include procedural delays as well as evidential hurdles during the trial.

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Recently the Criminal Procedure Code has been amended effectively removing the need forPreliminary Inquiries, which was seen to be the cause of inordinate delay in proceedings.
2.

There are several evidential problems relating to these sections. The use of the word “corruptly” insection 106 and 376 is not defined by statute. It is suggested by the Law Reform Commission thatrather than attempting to define the word corrupt, the law would be better served by presuming thatcertain types of behaviour are presumptively corrupt and thereby shifting the onus to disprove it on
the accused who would be the best person able to discharge the evidential burden.

3.

In most cases the main witness in a corruption case is an accomplice, who either took or received
the bribe. As a rule of practice, a corroboration warning must be given. In many jurisdictions thisrule has been abolished in favour of a general judicial discretion to warn the assessor about the lackof reliability of evidence in a particular case.

4.

One of the most prominent hurdles to successful prosecution is the reluctance of witnesses totestify; this could be due to the “culture of silence’ or the misguided sense of loyalty not to theinstitution but to employers.

5.

Lack of expertise of prosecutors dealing with corruption cases.

VIII. SOLUTION? ESTABLISHMENT OF AN INDEPENDENT ANTI-CORRUPTION AUTHORITY
The difficulties in investigating and proving corruption have led many jurisdictions to create special
independent bodies to investigate and in some instances, to prosecute corruption and fraud.
The Commission recommended that an Independent Anti-Corruption Authority be established byseparate legislation and that such legislation include the following minimum features.
-Be multifunctional, investigating, educating and prosecuting
Be subject to independent review
In the exercise of its investigative powers the Authority should be subject to the sanction of the DPP
Legislative provisions include comprehensive powers of investigation and aids to prosecution
That there be legislative protection of informants and whistleblowers
That the legislation contains offence provisions.

IX. OTHER INITIATIVES BY THE GOVERNMENTIn the Asia-Pacific region, twenty one countries, including Fiji, expressed their commitment to fightcorruption by endorsing an anti-corruption action plan within the framework of the ADB/OECD AntiCorruption Initiative for Asia and the Pacific. The Action Plan comprehensively promotes the regions
objectives and needs for reform to develop effective and transparent systems for public service tostrengthen anti-bribery initiatives, to promote integrity in business operations, and to support citizen’s
involvement.
Since 2003 the following anti-corruption policies have reportedly been in place in the Fiji Islands.
(i) Reform of the public service, which is currently taking place in Fiji by establishing a system ofgovernment hiring of public officials that assure openness, equity and efficiency and promotes hiringof individuals at the highest level.
Establishing ethical and administrative codes of conduct that prescribe conflicts of interest, ensure
the proper use of public resources, and promote the highest levels of professionalism. Includes therequirement for public officers and other employees to disclose annually their earnings on
investment, properties and from any other source.
Safeguard accountability of public service through effective frameworks, management practices, andauditing procedures. Ministries and departments are required to prepare corporate plans, submit
their annual budget estimates for approval by Parliament through the Minister of Finance and tocompile their annual reports at the end of the year.

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RESOURCE MATERIAL SERIES No.71(ii) A Financial Intelligence Unit (FIU) has been formed under the Financial Transactions Reporting Act.
The Ministry of Justice, the Reserve Bank of Fiji, the Director of Public Prosecutions and the Fiji
Police Force signed a memorandum of agreement (MOA) on 14/06/03 to establish a formal Unit. Thiswas done in response to Fiji’s obligation under the UN Special Resolution and recommendations of
the Financial Action Task Force (FATF), the international standard setting body in the area ofcountering money laundering and the financing of terrorism. The FIU is responsible for receiving,
analysis and disseminating to the relevant law enforcement authorities suspicious transaction
reports and other financial information concerning suspected proceeds of crime and other related
serious offences. This year there were 100 suspicious transactions report.
(iii) The Ministry of Justice is currently reviewing legislation to strengthen and effectively combat theoffence of bribery of public officials. Under review are The Charitable Trust Act, The Companies Act
and the Religious Body’s Registration Act.
(iv) Encouraging public discussion of corruption. There has been increasing public awareness ofcorruption evident by media reports and the support of non-governmental organisations, including
Christian denominations. The commercial banks have made an undertaking with the Reserve Bankof Fiji that they will inform them of any unusual or suspected transaction.

X. CONCLUSION
Although corruption as a legal concept is usually limited to situations of the exchange of gifts for favours,
the real dilemma is to create a society which is hostile to a wide range of politically improper conduct. The
abuse of office, nepotism, the acceptance of gifts or sexual favours are examples of corrupt behaviour in thewider sense.
The challenge for Fiji is to provide a climate, which is intolerant of this wider definition of corruption.
The tools for this challenge are a strong political will, firm leadership, the development of codes of conduct,
establishment of an independent commission against corruption, a free and fair media and good accounting
practices. Together these measures and institutions can help to create a social and cultural will to combat
corruption.

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CORRUPTION CONTROL IN CRIMINAL JUSTICE: THE MADAGASCARSITUATION, PROBLEMS AND SOLUTIONS AND CORRUPTION CASES
H. Thierry Ravalomanda*
I. INTRODUCTION
As in many other countries, corruption is a daily part of life in Madagascar as it occurs at all levels of
public institutions.
Madagascar being one of the poorest countries in the world, poverty is often considered as the maincause of corruption. Low salaries earned by public servants make it easy for them to be corrupted. Anotherapproach though considers corruption as the cause of poverty. This vicious circle sounds almost impossible
to overcome and for a while, corruption was encouraged by public compliance, fatalism being one aspect ofMalagasy mentality.
Nevertheless, under the impetus of the international donors’ standards and an increasing public
consciousness, a wind of change has started to blow in Madagascar these last few years.
The fight against corruption has become one of the most important tasks of the current Malagasy
Government in order to comply with the requirements of good governance and to enhance the economy of
the country which is severely affected by the plague. It has become a pressing concern at the highest levelsof policy making.

II. THE PRESENT SITUATION
According to the 2005 Transparency International Corruption Perception Index, Madagascar scores
2.8/10 and is ranked 99 out of 159 countries in the world. This shows that some efforts have been put
forward to increase that score. In fact, in the August 28, 2002 Transparency International Corruption
Perception Index Rankings, Madagascar received a score of 1.8/10 and was ranked 98 out of 120 countries.
The impact of the score and the rank led the Malagasy Officials to implement drastic measures to improve
the situation.
Therefore, the Malagasy government decided to establish an Anti-Corruption National Council. Its
mission was to establish a national anti-corruption strategy, prepare the creation of an independent anticorruption agency and draft a new anti-corruption law leading to legislative reforms addressing the issue.

A. The Anti-Corruption Law
Madagascar signed the United Nations Convention against Corruption in Merida, Mexico on December
10, 2003. It was therefore ratified on September 22, 2004 without reservations. The Convention
recommended countries to criminalize behaviours that are considered acts of corruption.
This led the Anti-Corruption National Council to draft the Anti-Corruption Law which was adopted
September 9, 2004.
A major part of the Law deals with the renewing of existing laws criminalizing the giving, offer orpromise of bribes by any party and the receipt or solicitation by any official of a bribe, and laws prohibiting
improper use of official power or position for personal enrichment. In addition to that, new offences havebeen instituted. The law now criminalizes the giving or receiving of an improper gratuity or improper gift,
the fact of not revealing to the proper authority conflict of interest and unjustified enrichment. Officials are
required to disclose their assets. Failure to do so may lead to prosecution.
Most of these measures are aimed at promoting integrity amongst public servants and officials but bribesin the private sector are also prohibited.
Measures to ensure the protection of the perpetrators of corruption acts who before prosecution report* Public Prosecutor, Antananarivo, Madagascar.

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the offence to the authorities have been instituted in order to encourage denunciation.
Before the Law was passed, there was much controversy about the penalization of public officials
receiving improper gifts, as it appears to be a Malagasy custom to give gifts. Also, criminalizing illicit
enrichment seemed to derogate from the principle of presumption of innocence as the burden of proof isreversed.
The Anti-Corruption Law also instituted the Anti-Corruption Independent Bureau or BIANCO.
Some efforts have been put forward lately to elaborate new laws in application of international
conventions but the change is occurring at a very slow pace.
The other Laws that are used in the fight against corruption are mainly the Penal Code and the Money
Laundering Law.

B. Anti-Corruption Institutions
1. The Anti-Corruption National Council (CSLCC)
The Anti-corruption National council was created by Presidential Decree in September 2002. According
to its mission statement it has to focus mainly on setting up the National Anti-Corruption Strategy, preparing
the creation of an independent anti-corruption agency and drafting an anti-corruption law.
The CSLCC works in partnership with various institutions including governmental departments and thecivil society. It has launched many observatory missions throughout the country to evaluate the scale ofcorruption in different sectors.
Its main mission was accomplished when the Anti-Corruption Law was passed, the law which among
others measures created the BIANCO. The CSLCC’s mission now consists of supervising and counselling
the BIANCO, monitoring and evaluating the implementation of the policy and national anti-corruption
strategy.
2. The Anti-Corruption Independent Bureau (BIANCO)
According to the Anti-Corruption Law of September 9, 2004, BIANCO has three main missions:
Prevention, Education and Investigation. It is also responsible for the implementation of the Anti-corruption
National Strategy.
In its prevention activities, the Bureau needs to identify in the legislation, rules and administrative
processes that are factors of corruption and submit reforms to address those factors. It also counsels public
institutions or officials and recommends measures to prevent corruption.
In its education activities, it holds campaigns of sensitization for the general public on the dangers ofcorruption and the need to fight against it.
Finally, BIANCO investigate allegations of corruption that they are made aware of through complaints ordenunciations.
To accomplish that task, it has been invested of important powers that regular police officers do not have.
Immunities cannot be invoked against them and they can issue their own search warrant without court
approval.
They are also independent meaning that the Head of Prosecution or any other judicial or politicalauthority does not have any control over them.
The BIANCO then hands those cases over to the prosecution or drops them if they consider that there is
not enough ground for prosecution.
Up until June 2005, BIANCO has received 3823 complaints and denunciations from all over the country.

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3. The Anti-corruption Judiciary Unit (CPAC)
In Madagascar, the Judiciary is one of the sectors severely affected by corruption, hence a loss of trustfrom the general public. Also, this undermines the application of law and the implementation of public policy.
For this reason, the CPAC was put in place in May 2004. It is composed of Magistrates from the Tribunal
and Court of Appeal of Antananarivo including public prosecutors, investigating judges and judges. They
have been selected for their high level of competence and integrity. They have been trained in matterspertaining to corruption and financial crimes. Also, some police and gendarme officers and secretaries areworking with those magistrates.
Their task is to prosecute, investigate and judge cases of corruption that are referred to them, mainly by
the BIANCO. They are set apart in their own their own offices, away from the Court in order to reduce thepressure from other colleagues and are provided with facilities such as cars and computers which have been
funded by the Government of Japan. They are required to work efficiently and with speed, in contrast to theway regular cases are being processed in regular courts.
The CPAC actually started to be operational in August 2004 and about 100 cases so far have been
submitted to its prosecution office, mainly cases from the BIANCO and the CPAC police officers. Twentythree of those cases have been dropped mainly because of lack of evidence but also because the acts being
investigated were not offences. Many public officers starting from the basic civil servant to Mayors andMinisterial high officials have been sentenced and jailed on corruption charges.
The CPAC is still experimental and is only competent for the Antananarivo area. For the other provinces,
corruption cases are handed over to regular courts.

III. PROBLEMS AND SOLUTIONS RELATED TO THE LEGAL SYSTEM IN REGARD TO
CORRUPTION CONTROL
Despite all the aforementioned deterrent measures, the fight against corruption still has many challenges
to face in Madagascar. Ownership of the strategy by many sectors is not satisfactory. Legislative anticorruption measures are important, but they may not be effective in the absence of honest, efficientinvestigative and judicial bodies.

A. Corruption in the Judiciary
The perception of corruption within the judiciary is very high in Madagascar despite the efforts put
forward by the Ministry of Justice.
The causes of such corruption are multiple:
1. Low Salaries
Prosecutors and judges as they are endowed with discretionary powers may be particularly vulnerable toattempts by powerful litigants to influence the outcome of cases where large funds are involved. Thus, itwould be important to ensure their financial security through adequate remuneration. Measures aiming at
enhancing their career development opportunities need to be considered. These equally apply to judicial
clerks and other administrative staff.
2. Lack of Training
Maintaining the professionalism in the service is an important key. Objective systems of recruitment andpromotion based on qualifications and performance, continuous training and promotion of ethics in the civil
service are some ways to do so. Efforts have been put forward to follow those standards.
In the context of the fight against corruption, prosecutors need to be highly competent. They need tolearn to be proactive and modernize their practice and methodology.
Judges need to be trained in judicial reasoning and in the exercise of judicial discretion. A system ofaccountability should exist in the application of law.

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Efforts need to be put forward to understand the new anti-corruption law and specifically the offences inorder to avoid different interpretations by the anti-corruption institutions.
3. Complex Judicial Procedures
The Malagasy legal system is an inheritance from the French colonization. Unfortunately, only a few
updates have been made and some legal texts do not fit in our modern context.
Outdated court procedures supported by archaic texts increase opportunities of corruption. Way too
many formal prerequisites decrease the accessibility of justice and in order to come to a fast resolution of acase, bribes are solicited and offered.
Effective measures would be judicial reforms aiming at increasing the accessibility of the public to legal
information, and making judicial procedures clearer and less complicated to encourage a speedy resolution of
disputes.
Alternative sources of dispute resolution should be promoted. In Madagascar, the public tend to view the
judicial system as the only way to resolve any disputes they may have and courts are crowded with many
minor cases.

B. Immunity of Some Public Officials
One of the issues in the Malagasy legal system that hinders the fight against corruption is the system of
immunity protecting some public officials.
This includes the police, the judiciary and state officials at all levels.
For example, unless he/she is caught committing a flagrant act of corruption, a policeman can only beprosecuted with the consent of the Police Minister. Experience has shown that this consent is very rarely
given. This system is also applied within other bodies of civil servants.
Only the Head of Prosecution in the Court of Appeal can prosecute some administrative authorities likeheads of provinces or prefects or members of the judiciary. Higher Magistrates need the consent of theJustice Minister.
Members of Parliament are also highly protected.
As for the President, the Prime Minister, members of the government and presidents of legislative
institutions, only the High Court of Justice is competent to hear their cases.
In order to fight efficiently against corruption, all these procedures need to be simplified in order toreduce impunity. In Madagascar, The High Court of Justice only exists in the Constitution. As for now, it has
not yet been established.
Some encouraging steps have been taken as the BIANCO is not bound by those limitations. It can hearanyone, regardless of his/her position. The problem lays at the prosecution stage. Empowering sufficiently
and appropriately prosecutors in charge of fighting corruption is definitely an important condition.

C. Independence of Anti-Corruption Investigators, Prosecutors and Judges
One of the feelings that prevail among the general public is the impunity of corruption perpetrators, eventhose that are notorious in the matter. Such impunity can be interpreted as the existence of interference ofpoliticians to protect those perpetrators from investigations or prosecution. The Judiciary then appears to bea mere executor of state policies, regardless of the interests of litigants.
In the Malagasy legal system, prosecutors are part of the Judiciary. Because they represent the society,they are directly under the authority of the Ministry of Justice. Their actions are strictly supervised and canbe guided by that authority. Those principles are stipulated in the Constitution. Only judges are independent.

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The BIANCO is totally independent in its actions. But as they refer cases for prosecution, the context isdifferent, hence the need to ensure the independence of prosecutorial services.
When the CPAC was created, in order to promote transparency in the prosecutorial process, instructions
from superiors were required to be in writing. In practice though, it appears difficult if not impossible for aprosecutor to ignore verbal instructions given the risk that it may engender for his/her career.

IV. CORRUPTION CASES IN MADAGASCAR
One of the reasons why such emphasis has been put lately on the fight against corruption is the negative
effects on the country’s economy.
Since the creation of the BIANCO and the CPAC, many corruption cases have been uncovered,prosecuted and the perpetrators have been sentenced with imprisonment and fines. Nevertheless the great
majority of these cases are related to petty corruption.

A. Petty Corruption
It is standard practice to pay bribes for the transportation of goods, a new permit, traffic violations, andeven a high school diploma in Madagascar. All fields of the public service are severely affected. Some cases
though are more recurrent than others.
1. Within the Police
Within the last ten months about seven Antananarivo police officers have been prosecuted by the CPACon corruption charges. Abuse of power, solicitation of bribes and extortion have been reported. Actually, the
BIANCO acts according to complaints and denunciations, and evidence is gathered mainly through a systemof “traps” that is actually admissible as evidence by the Court, as long as the willingness of the perpetrator
to commit the offence is proved.
2. Corruption in the Judiciary
Corruption acts in the Judiciary are committed by judicial clerks and Magistrates. Usually, the bribes thatare being paid are relatively small unless powerful litigants are involved. Only a few magistrates have been
officially prosecuted for corruption charges. Still, many have been sanctioned by the discipline board of theMagistrates’ Superior Council. In 2003, twelve of them were suspended for corrupt practices. Moremagistrates have since been sanctioned.

B. Serious Corruption
High level corruption involves high-ranking officials and the interests involved can be huge. It
undermines the State’s economy as public funds are being used in a personal and improper way. Althoughrare, a few cases have been uncovered and successfully prosecuted and this had a great impact on public
opinion and politicians
1. Corruption During Public Procurement Procedures
In the last few months, a couple of mayors and other administrative officials in charge of public
procurement procedures have been charged with embezzlement, corruption and favouritism. The
information came from anonymous denunciation or complaints. Some efforts need to be carried out in thismatter for the prosecution to be proactive and collaborate with commissions checking public procurement
procedures to detect irregularities deserving investigation.
2. Corruption Within Public Enterprises
In April 2005, the Administration Board of the Malagasy Post was prosecuted and found guilty ofcorruption acts as they improperly used their official position to the detriment of the Post for personalenrichment. This engendered a lot of controversies about the extent of the power of the Public Enterprises’
Administration Board.
3. Corruption Among Tax and Customs Officials
Important cases are currently underway involving high-ranking tax and customs officers charged with125

RESOURCE MATERIAL SERIES No.71

corruption acts, falsification of public documents and embezzlement. These kinds of behaviour have a deep
impact on the country’s economy because funds that should be for the State’s reserve are either embezzled
or not collected efficiently because of corruption.

V. CONCLUSION
After the recent Anti-Corruption National Convention organized by the CSLCC, the motto that has been
adopted is “Free the Economy from Corruption”. The strategy for 2005-2007 has been renewed, after the
progress made during the first two years of the implementation of the strategy, the long term goal is toachieve a score of 7/10 in the Transparency International Corruption Perception Index. Emphasis has been
put on the judiciary and its major role in the fight against corruption. Plans have been made to dismantle theramparts of corruption within the judiciary in order accomplish the objectives of a clean and efficient justicesystem, respectful of human rights and safe for investors.
The anti-corruption institutions cannot eradicate corruption by themselves. They need the support of astrong political will, the help of international agencies and NGOs and the adherence of every single citizen.
Also, since corruption related crimes tend to be transnational, international judicial cooperation seems to bea key issue in order to efficiently fight against corruption. But as of now, only a very few cases, if no cases atall, have required such cooperation.

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EIGHTH INTERNATIONAL TRAINING COURSE ON CORRUPTION CONTROL IN CRIMINAL JUSTICEAPPENDIX
ANTI-CORRUPTION INDEPENDENT BUREAU
Investigation Department
Investigation Department Statistics
As to Sept, 28 2005
I. INVESTIGATION GROUP (IG)
September 2005
Number of Cases

Current

Processed
Procedures transmitted to courts

Received

Last monthleft overIn
Antananarivo

OutsideAntananarivo

NumberArrests

Suspects
in custody

Suspects notin custody

Reports

40

146

75

96

6

09

03

06

08

Overall Statistics
Procedures transmitted to courts

Number of Cases
Received

NumberArrests

Suspects
detained

Suspects
not detained

Reports

2005

350

74

145

63

76

84

2004

56

8

12

2

10

4

TOTAL

406

82

157

65

86

88

Kind of Complaints Received
SectorNumber%Justice922.50

State Institutions

6

15.00

National Gendarmerie

5

12.50

Financial Institutions

4

10.00

Administrative Services

3

7.50

National Police

2

5.00

Education

2

5.00

Internal Affairs Department

2

5.00

Decentralized Collectives

2

5.00

Health1

2.50

Land Administration

1

2.50

Public Construction

1

2.50

Private Sector

1

2.50

Public Procurement

1

2.50

TOTAL

40

100.00127

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II. OPERATIONAL SUPPORT GROUP
A. Reception and Process of Complaints
Complaints Received
Sept. 2005

2005

2004

TOTAL

Complaints Received

546

5250

813

6 063

Processed Complaints

242

4946

813

5 759

Complaints being Processed

304

304

0

304

Sept. 2005

2005

2004

TOTAL

For Investigation

12

350

56

406

For Information

8

242

35

277

TOTAL

20

592

91

683

Sept. 2005

2005

1. Land Conflict

52

863

2. Judiciary

44

554

3. Police Officers

36

592

4. Administrative Officers

32

525

5. Health and Education Field

15

273

6. Family and Social Matters

27

697

7. Customs and Ports Fields

444

8. Crime Commission

24

418

9. Others

8738

Sept. 2005

2005

2004

TOTAL

Antananarivo

128

2 992

572

3 564

Mahajanga

22

524

75

599

Toamasina

22

372

75

447

Toliara

21

523

23

546

Fianarantsoa

32

318

46

364

Antsiranana

17

217

22

239

Receivable Complaints
FilingReported Complaints
Object of Complaints

Geographical Origin of Complaints
Province

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EIGHTH INTERNATIONAL TRAINING COURSE ON CORRUPTION CONTROL IN CRIMINAL JUSTICE

Complaints Received (17 September 2004 - 28 September 2005)
2004

Sept.

Oct.

Nov.

Dec.

Number of Complaints

37

221

355

200

2005

Jan.

Feb.

Mar.

April

May

Jun.

Jul.

Aug.

Sept.

Number of Complaints

170

455

245

496

847

799

906

788

545

Number of Complants Received
1000
900
800
700
600
500
400
300
200
100
0
Sept.

Oct.

Nov.

Dec.

Jan.

Feb.

Mar.

Apr.

May

Jun.

Jul.

Aug.

Sept.

B. Information Collection Activities
September 2005
Current

Left Overs

TreatedNumber of Cases
Received

In Tana

Outside TanaIn Tana

Outside Tana

Filed in database

Transmitted

33

12

37

42

27

–

23

Overall Statistics
OutputNumber of Cases
Received

Filed in Database

Transmitted

2005

328

76

123

2004

16

TOTAL

344

14
76

137

Declaration of Assets
Declaration of Assets Received up to 04/24/05

1 813

Declaration of Assets Received Since 04/24/05

4 423

Total

6 236

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RESOURCE MATERIAL SERIES No.71

C. Visitors
Visitors

Sept. 2005

2005

2004

TOTAL

Plaintiffs

310

2 726

301

3 027

Summoned

50

1 074

55

1 129

Others

313

3 650

390

4 040

TOTAL

673

7 450

746

8 196

D. Complaints Box
Number of Complaints

130

82

PRESENT SITUATION, PROBLEMS AND SOLUTIONS IN THE LEGALSYSTEM RELATED TO CORRUPTION CONTROL IN UGANDA
Vincent Wagona*
I. INTRODUCTION
There is no universal definition of corruption, but it is generally agreed that corruption is the illegal useof public power by a public official for private gain.
While corruption may manifest itself in a simple and straightforward manner, in many cases it is carriedout through complex methods involving cross-border transactions.
Delivery of justice and other services by Government to the population can be negatively affected bycorruption. Its effects are more devastating on the poor who are not capable of seeking private services suchas medical and legal aid. Corruption also hinders investment, proper trade and genuine economic activities.
It creates unfair competition whereby genuine performers in the economy fail to survive.
The anti-corruption agencies in Uganda have together developed and are spearheading theimplementation of a National Anti-Corruption Strategy and working to bring all other stakeholders on board
to help its implementation.

II. CURRENT SITUATION OF CORRUPTION IN UGANDAThis part of the paper presents the trend and criminal situation of corruption, legal framework including
elements of offences and investigative methods, relevant agencies and institutions and their jurisdiction,
and, the practice of the criminal justice system in Uganda.

A. Trend and Criminal Situation
Uganda has designed the National Strategy to fight corruption 2004 – 2007 which is a policy document on
operations of anti-corruption agencies. The document, citing the second National Integrity Survey report of2003 (the first was in 1998) indicates that a significant number of cases of grand corruption have emerged inrecent years leading to significant losses of public funds through mishandled procurements and outrightembezzlement. Further, that there has been petty corruption associated with low morale and indiscipline
among poorly paid civil servants.
Where corruption has gone unpunished, or sanctions have been delayed due to weak systems anddifficulties of obtaining evidence to prove court cases, parts of society have developed the perception that
corruption is condoned, and tended to tolerate and participate in petty corruption due to sympathy regarding
poor pay and the belief that there are those who are involved in more serious corruption but have not faced
serious sanctions because they were not successfully prosecuted.
The surveys also note that government bureaucracy in providing certain services like issuance of
licenses and permits involving several approval stages provides fertile ground for extracting bribes, while
financial pressure on politicians to recover heavy election expenses leads them into corruption.
According to the surveys, sectors that have featured in incidences of corruption unfortunately haveincluded the anti-corruption agencies such as the lower levels of the police and the judiciary. Others havebeen the health services, tax collection and local councils
However on a positive note, the 2003 survey report also indicates that anti-corruption efforts haveyielded positive results. Since the 1998 survey, there has been a marked reduction in the reported
incidences of bribery relating to the police, revenue services and magistrates courts. There has also beenreported general satisfaction with improvements of services in health, education and agriculture.

* Ag. Senior Principal State Attorney, In Charge of the Fraud Unit, Directorate of Public Prosecutions, Uganda.

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B. Legal Framework and Investigative Methods
The major anti-corruption legislation in Uganda today is the 1970 Prevention of Corruption Act. Under
this law, corruption as an offence involves the participation of a public official. The law criminalizes
corruption where a public official corruptly solicits or receives or agrees to receive a gratification as an
inducement to, or reward for doing or omitting to do anything in which the public official is concerned. The
said law also criminalizes the act of corruptly withdrawing a tender which has been awarded. Both the public
official and the other party involved are treated as offenders. The law further criminalizes similar corrupt
transactions involving an agent when conducting the principal’s affairs or business and bribing any public
official in order to vote or not to vote in any matter.
Other corruption related offences are found in the Penal Code and include embezzlement, causing
financial loss, abuse of office, and false accounting. Embezzlement is theft by any employee, and also covers
directors of companies or corporations and members of associations or religious organizations. Causing
financial loss is where the acts or omissions of a public official or employee of a bank, credit institution, or
insurance company cause financial loss to the employer or a customer. In abuse of office, a public official’s
arbitrary acts or acts done under his/her direction must be found to be prejudicial to the employer’s
interests. False accounting is where a public officer knowingly furnishes false statements or returns relating
to public property, revenue or balance of public funds.
The above offences are investigated by mainly a specialized fraud squad of the Criminal Investigations
Department (CID) based at the Police Headquarters or the investigators of the Inspector General of
Government (IGG). The investigators come from various backgrounds of training.
The investigations involve obtaining relevant documents and statements of witnesses in the affectedorganization. Inputs are sought from experts in the affected organizations and others, especially auditorsfrom the Office of the Auditor General, and document analysts or handwriting experts from the Government
Analytical Laboratory.
The auditors are useful in unearthing financial irregularities or malpractices while document examiners
mainly deal with the identification and analysis of handwriting, signatures, alterations, erasures,
embossments and stamp impressions. In some cases the input of the Public Procurement and Disposal of
Assets Authority (PPDA) may be required to identify procurement irregularities and malpractices.

C. Uganda’s Anti-Corruption Agencies and their Jurisdiction
Uganda’s main anti-corruption institutions are the Directorate of Public Prosecutions (DPP), Inspector
General of Government (IGG), Criminal Investigations Department (CID), Auditor General and the Public
Procurement and Disposal of Assets (PPDA).
The office of the DPP is established by Article 120(1) of the Constitution of Uganda. The DPP has the
mandate over all criminal prosecutions in the country, including corruption cases. The DPP is independent
in the sense that in the exercise of his/her Constitutional functions the DPP is not subject to the direction orcontrol of any person or authority. Under Article 120(3) of the Constitution the major functions of the DPP
include directing the police to investigate any information of a criminal nature and instituting criminal
proceedings against any person in any court with competent jurisdiction other than a court martial.
Under Article 120(4) of the Constitution the powers of the DPP can be exercised by the DPP personallyor by officers authorized by the DPP who are State Attorneys and State Prosecutors. However, the law
requires the consent of the DPP personally in writing before commencing prosecution in corruption cases
under the Prevention of Corruption Act and other corruption related offences like abuse of office under the
Penal Code Act.
The DPP does not carry out investigation of cases. This is the function of the police. The role of the DPP
is to guide and advise the police in the conduct of the investigations. The cases are reported to the police
who carry out investigations and refer the case to the DPP for legal advice and to conduct the prosecution.
The prosecutions are done in the Magistrates courts, although the DPP has powers to commit any case to
the High Court for trial.

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Under Article 230(1) of the Constitution of Uganda, the IGG has powers to investigate, cause
investigation, arrest, cause arrest, prosecute, or cause prosecution in respect of cases involving corruption,
abuse of authority or of public office. The major difference in the roles of the DPP and IGG are that while the
IGG has powers to investigate, arrest and prosecute offenders, as already stated, the DPP does notinvestigate or arrest but relies on the police for investigations and arrest. Secondly, while the DPP has
powers to control and handle all criminal prosecutions in the country, IGG handles investigations andprosecutions only in corruption cases, and cases of abuse of authority or public office. Corruption cases aredefined in the IGG Act to include embezzlement, bribery, nepotism, influence peddling, theft of public funds
or assets, fraud, forgery, causing financial or property loss and false accounting in public affairs.
In investigation of corruption, Uganda’s Prevention of Corruption Act gives the DPP powers to: cause
the investigation of any bank account, share account or purchase account; apply to court for orders
restricting disposal of assets or bank accounts of accused persons; order the inspection of documents andobtaining of copies thereof; and, to obtain information. The same powers apply to the offences of
embezzlement and causing financial loss under the Penal Code. Under the proposed amendment of the law,similar powers will specifically be extended to the IGG. However, under the IGG Act, the IGG generally has
powers to make any such orders as are necessary in the circumstances.

D. Practice of the Criminal Justice System
Our criminal justice system is an adversary one based on the English law. The accused is presumed to beinnocent until proved guilty. The burden is on the prosecution to prove the guilt of the accused beyond areasonable doubt. The accused has no duty to prove his/her innocence.
Because of our rules of evidence, courts tend to require the production of original documents in evidence
during trial. This makes matters difficult for the prosecution, where the accused may have caused
disappearance of important documents.

III. CURRENT PROBLEMS AND MOVES RELATING TO CORRUPTION IN UGANDAThis part of the presentation highlights the current problems and moves relating to the investigation,prosecution and adjudication of fraud and corruption cases in Uganda.

A. Weaknesses in the Law
As already indicated, the scope of our Prevention of Corruption Act is limited mainly to bribery and the
involvement of public officials. Therefore, the Act is being amended to define and broaden the offence ofcorruption to include diversion of public funds, influence peddling, conflict of interest and illicit enrichment,
and, to cover employees in the private sector.
Economic gain is the major motivation for engaging in corruption. Therefore, the fight against it should
involve targeting the proceeds of corruption. Uganda, however, lacks various laws in this area. Therefore, in
addition to amending the Prevention of Corruption Act to cater for this situation we are currently working
on new laws to help in the fight against crime generally by targeting crime proceeds, including money
laundering. Other laws to be enacted in the fight against crime, including corruption are Qui-tam and a law toprotect whistleblowers.

B. Lack of Sufficient Public and Victim Participation and AwarenessFighting corruption requires effective public involvement. Yet many people do not seem to be alive to thefact that corruption involves and affects everybody and that the strategy to fight and eliminate it, therefore,should involve everybody. Many people seem to be indifferent or to lack knowledge of their role in fighting
corruption by reporting, providing evidence and serving as witnesses. Many people do not feel obliged toplay any direct role in preventing corruption or as witnesses in corruption cases. The public do not view
corruption and corrupt public officials with the same intolerance as those who steal their personal property
and commit other crimes of a personal nature. Consequently, the public and the relevant officials are rather
reluctant to assist the investigators and prosecutors in a number of cases.
There is also lack of cooperation from witnesses who are approached by investigators to provide evidenceor serve as witnesses, for fear of reprisals from accused persons, or they do not want to implicate relatives,

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friends, their employer or those with influence.
Some victims such as banks and embassies do not want exposure and as such, are reluctant to report orparticipate actively in cases when they get to court. In some cases, they have no confidence in the criminal
justice system to handle their cases.
In view of the above state of affairs, there are efforts in Uganda to ensure that Government institutions,donors and civil society strategically work together to raise public awareness against corruption.
Investigations, prosecutions and the fight against corruption generally will greatly improve with improved
public awareness and participation in the reporting of corruption, giving of evidence and general public
intolerance of corruption.

C. Lack of Specialization in Handling Corruption Cases
Presently in Uganda, corruption cases are prosecuted in the magistrates courts, regardless of thecomplexity and magnitude. Although the DPP has powers to take any case to the high court, the said court,
like the magistrates courts, suffers from a high degree of backlog.
There are no specialized criminal courts for corruption cases or any other crime categories in themagistrates courts. The magistrates courts handle corruption cases, in addition to all other crime case
categories. They also handle civil cases, except only one city court which handles only criminal cases. This
arrangement contributes to delays in concluding corruption cases, which frustrate witnesses.
There have been no specialized prosecutors for fraud or any other crime category. State prosecutors
handle all case types in the magistrates courts while state attorneys do the same in the magistrates courts
as well as the higher courts. Those who are assigned complex fraud corruption cases must grapple withthem in addition to other pressing casework and yet many corruption cases are difficult and time consuming.
Concerned parties become impatient and urge courts to impose measures which may be unfavourable to theprosecution.
At the beginning of 2004, the DPP set up a small fraud unit for a start, which is now operational having
attached and trained its officers in the UK and South Africa. The Police have a serious fraud squad that is
also operational. The two have now started working together on serious fraud and corruption cases fromearly investigation stages and continue contact throughout the trial. It is being proposed that serious fraudand corruption cases could be handled under scheduled special sessions, which would help improve on the
speed and rate of disposal as well as benefit from a specially funded programme which is already in place tohandle a backlog of capital cases in the high court.
The DPP is planning to carry out a baseline survey on corruption cases in the country. This will help us
to understand the types, nature, number and status of corruption cases in the country. In addition, membersof the fraud unit undertaking further studies are encouraged to do their research in the country in the area offraud and corruption.
The anti-corruption agencies are pushing for the establishment of a specialized court for fraud andcorruption cases and the idea has been passed in the constitutional amendment bill soon to become law.

D. Insufficient Capacity
The anti-corruption institutions lack sufficient well trained and experienced staff to handle fraud andcorruption cases. There is great need to continually train and upgrade staff in investigation, prosecution andadjudication of corruption cases that are increasingly becoming sophisticated and highly technical. The fraud
unit of the DPP and the National Fraud Squad of the police need specialized training both locally andinternationally to be able to cope with the task.
Uganda also suffers an acute shortage of handwriting experts (document examiners) and it is a big
problem when it comes to analysis of questioned documents. These experts also lack modern equipment for
their work.

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Tied to the issue of capacity building through training, is the question of low staff remuneration, which
affects staff retention. Our experience has been that well trained skilled prosecutors have performed better,raised their profiles, become marketable and are targeted by other employers, who take them up for better
terms and conditions of service. In this way, we have lost many good prosecutors. We seem to be investingin people who we are failing to retain in our institutions.

E. Complexity of the Cases
Most corruption cases involve complicated patterns of fraud. Such cases are more difficult for theinvestigators, prosecutors and magistrates than the capital cases of murder, rape and robbery.
The people who get involved in acts of corruption are well educated. They are the specialists in theirareas of training and work. They use modern equipment, technology and skills. Public institutions andgovernment departments and agencies are starting to suffer from acts of well trained officials whose
corruption can be difficult to detect and fight unless there are well trained officials in the anti-corruption
agencies.

F. Lack of Co-ordination Among Anti-Corruption Agencies
In the past, because of lack of knowledge and information on how the criminal justice system worked,
some among the anti-corruption agencies found it difficult to appreciate the unsatisfactory features of theprocess and outcome. This led to accusations and counter accusations among anti-corruption agencies.
In view of the above and other factors and in order to improve effectiveness and efficiency in the fightagainst corruption Uganda has realized the need for increased coordination among institutions of the Justice
Law and Order Sector (JLOS) and with other anti-corruption institutions. In this regard, Uganda has put inplace the Anti-corruption Agencies Forum (IAF) to which some JLOS institutions are active participants.
The Forum is chaired by the Minister of Ethics and Integrity and comprises of the Inspector General of
Government (IGG), the Director of Public Prosecutions (DPP), the judiciary, the police, Public Procurement
and Disposal of Public Assets Authority, the Auditor General and other institutions. Through the forum theanti-corruption agencies have been working together in the design and implementation of a national strategy
to fight corruption, promoting publicity and advancing legal reforms.
Through a programme called the ‘Chain Linked’ Initiative, close co-ordination, communication andcooperation among criminal justice institutions has been emphasized in streamlining operations that impact
on the fight against corruption. Under the programme, performance standards for all our institutions havebeen designed. These standards, among other things, set time limits for activities by all the institutions.
How long certain investigations should be conducted by the police, the periods for perusal of files by state
attorneys, the periods for writing of judgments by judicial officers and other performance time limits are set
and are used in evaluating performance.
The DPP and Police have in place a joint coordination committee which meets monthly to ensure that
Police/DPP operations remain coordinated. Further, the DPP/police attend joint annual workshops to shareexperiences, discuss common shortcomings and agree on the way forward. We plan to include the judiciaryin this arrangement.
Uganda’s anti-corruption agencies have set as one of their strategies the sharing of information andexperiences. For this to be achieved all the agencies need to improve on their record of data management.
We have to computerize our records and data to be able to easily retrieve and share information. Good
records and reliable data can tell a good story about our performance. Our records currently are not in aproper state for us to tell what we have done and achieved. It may not be easy to share such data, records
and information. Computerization, registry management, case management and data collection and analysis
from different stations are activities the anti-corruption agencies are working to upgrade and modernize in
Uganda.

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IV. GLOBAL FIGHT AGAINST CORRUPTION
A. International Conventions
Uganda is a signatory to both the UN and AU Conventions against corruption. The conventions have notyet been domesticated into our domestic laws.
However, the provisions of the conventions are being considered in our amendments and new laws with aview to domesticating the international law in respect of corruption. The proposals for the amendment of
Uganda’s Prevention of Corruption Act include a number of provisions of the UN Convention that are not yet
part of our current law. The provisions in the UN Convention that relate to Money Laundering and Bank
Secrecy are being handled in the Money Laundering Bill.

B. International Cooperation
The global fight against corruption requires effective international cooperation through extradition andmutual legal assistance. Uganda has extradition treaties with only about 35 countries and corruption is not
specifically listed among extraditable offences. These issues will have to be addressed when domesticatinginternational conventions into our domestic legislation.
V. CONCLUSION
Corruption has increasingly become complicated and difficult to handle. The fight against it is acontinuous process. A lot more will be achieved when issues are addressed in countries, relating to
problems like public participation and awareness, legal reform, coordination of efforts and capacity building;and, when there is effective international cooperation.
As a country and as an individual participant, we are willing to learn from everyone who has ideas,
proposals or any other forms of assistance that will enable us to achieve more in the anti-corruption
struggle.

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APPENDIXCOMMEMORATIVE PHOTOGRAPHS• 132nd International Senior Seminar• Eighth International Training Course on Corruption
Control in Criminal Justice

UNAFEIThe 132nd International Senior Seminar

Left to Right:
Above:
Mr. Laborde (UNODC), Prof. Yokochi
4th Row:
Ms. Ida (Staff), Mr. Saito (Chef), Mr. Arakawa (Staff), Mr. Tatsuda (Staff), Mr. Tanuma (Staff), Mr.
Aizawa (Staff), Ms. Yanagisawa (Staff), Ms. Matsuoka (Staff), Ms. Inamasu (Staff), Mr. Kuwayama(Japan)
3rd Row:
Mr. Tanaka (JICE), Ms. Ishikawa (Staff), Mr. Atencio Gamarra (Venezuela), Mr. Souphy Norintha(Laos), Mr. Techapun (Thailand), Mr. Endo (Japan), Ms. Miyoshi (Japan), Mr. Mohd Yaacob(Malaysia), Mr. Fa’aoa (Tonga), Mr. Thet Lwin (Myanmar), Mr. Alsahli (Saudi Arabia), Mr. Lainez
Cruz (Honduras), Mr. Scharia (CTED), Ms. Cercós (CTED)
2nd Row:
Mr. Tada (Staff), Ms. Tanaka (Staff), Mr. Inoue (Staff), Mr. Imai (Japan), Mr. Uemura (Japan), Ms. Van
Anh (Viet Nam), Mrs. Chimbaru (Zimbabwe), Mr. Hodges Api Ette (P.N.G), Ms. Doi (Japan), Mr.
Rossetto (Brazil), Mr. Sonam (Bhutan), Mr. Santos Perez (Dominican Republic), Mr. Dhungana (Nepal),Mr. Sasaki (Japan), Mr. Prima Idwan Mariza (Indonesia), Mr. Pathak (India), Mr. Ramoneda (Philippines)
1st Row:
Mr. Nishimura (Staff), Prof. Ikeda, Prof. Noge, Prof. Shinkai, Prof. Higuchi, Prof. Noguchi, Dep.
Director Senta, Mr. Forbes (ADB), Director Tauchi, Mr. Ruperez (CTED), Prof. Praja (Indonesia), Prof.
Sakata, Prof. Ishihara, Prof. Sugiyama, Prof. Uchida, Prof. Uryu, Mr. Ebara (Staff)

Eighth International Training Course on Corruption Control in
Criminal JusticeLeft to Right:
Above:
Mr. Wagona (Uganda), Prof. Shinkai, Prof. Yokochi
4th Row:
Mr. Tada (Staff), Ms. Tanaka (Staff), Ms. Ishikawa (Staff)
3rd Row:
Mr. Inoue (Staff), Mr. Dai (Staff), Mr. Saito (Chef), Mr. Sano (Staff), Mr. Yamagami (Staff), Mr.
Tanuma (Staff), Mr. Iwamura (Japan), Ms. Nakamura (JICA), Ms. Yanagisawa (Staff), Ms. Inamasu(Staff), Mr. Matsuoka (Staff), Mr. Aizawa (Staff), Mr. Arakawa (Staff)
2nd Row:
Mr. Adhikari (Nepal), Mr. Maruta (Japan), Mr. Vixayalai (Laos), Mr. Hassan (Nigeria), Mr. Rodriguez(Philippines), Mr. Chowdhury (Bangladesh), Mr. Myint (Myanmar), Ms. Pen (Cambodia), Ms. Jamsran(Mongolia), Ms. Choi (Fiji), Ms. Kharatyan (Armenia), Ms. Dube (Botswana), Mr. Mochizuki (Japan),
Mr. Ravalomanda (Madagascar), Mr. Sudihar (Indonesia)
1st Row:
Mr. Nishimura, Prof. Ikeda, Prof. Uryu, Prof. Sugiyama, Prof. Noguchi, Prof. Sakata, Ms. BuhlmannEliseeva, Mr. Gossin (Switzerland), Director Tauchi, Mr. Stevens (USA), Dep. Director Senta, Prof.
Noge, Prof. Higuchi, Prof. Uchida, Prof. Ishihara, Mr. Ebara (Staff)