By Neville Ladduwahetty Courtesy The Island

The Island of 31 Jan. 2022 carries a report which states: The Indian National Investigation Agency (NIA) has registered a case and launched a probe in connection with fake passports who are allegedly involved in raising money to revive the LTTE ….”

The amended Prevention of Terrorism (Special Provisions) Act No. 48, 1979 of Sri Lanka that is tabled in Parliament does not adequately address the act of raising money” by terrorist entities such as the proscribed LTTE. Instead, the amended PTA addresses mainly the rights and entitlements of perpetrators of terrorism, and not those who fund, advise and support the many facets of LTTE activities. Despite this shortcoming, Sri Lanka and several other states have sufficient provisions in their domestic law to proscribe entities such as the LTTE; the latest being the European Union that rejected the multiple pleas of the LTTE to lift their ban as a Terrorist Organization. However, limiting it to proscribing entities is not a sufficient deterrent to discourage terrorism. Instead, the breadth and scope of the legal provisions that exist need to be strengthened in order to prevent and suppress terrorism.

According to The Island report, the action taken by the NIA is under provisions of Unlawful (Prevention) Act and Foreigners Amendment Act among others of the Penal Code”. Whether these instruments cover only terrorist acts or are sufficiently wide in scope to cover fund raising” needs to be established if they are to prevent and deter terrorism. If not, they need to be extended beyond to activities such as selecting, training, fund raising and engaging the perpetrators of terrorism if the legal provisions are to have an impact. Since the Security Council Resolution 1373 is sufficiently wide in scope to address these issues, it is imperative that ‘all’ Member States incorporate its provisions because they are specifically designed to prevent and suppress terrorism. Since those arrested are now engaged in the revival of the LTTE, it is absolutely vital that Sri Lanka takes immediate action to implement the full scope of Security Council Resolution 1373, if terrorism is not to recur.

Security Council Resolution 1373

This Resolution states:

1. Decides that all States shall:(a) Prevent and suppress the financing of terrorist acts;(b) Criminalize 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;(c) Freeze without delay 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 by such persons and associated persons and entities;

(d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit 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 of such persons;

2. 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 of terrorist groups and eliminating the supply of weapons to terrorists; (b) Take the necessary steps to prevent the 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 their respective 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, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts;(f) 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;(g) Prevent the movement of terrorists or terrorist groups by effective bordercontrols and controls on issuance of identity papers and travel documents, andthrough measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents;

The sentiments and near identical opinions were expressed by the United States Supreme Court in the case of Holder v Humanitarian Law Project, when the …court voted 6 to 3 to uphold a federal law banning ‘material support’ to foreign terrorist organizations. The ban holds, the court explained, even when offerings are not money or weapons but things such as ‘expert advice or assistance’ or ‘training’ intended to instruct in international law or appeals to the United Nations” (Washington Post, June 22, 2010). Chief Justice John G. Roberts Jr. in writing the majority opinion said that those challenging the ban simply disagree with the considered judgement of Congress and the Executive that providing material support to a designated terrorist organization – even seemingly benign support bolsters terrorist activities of the organization…(the law) is on its face, a preventive measure – it criminalizes not terrorist attacks themselves, but aid that makes the attack more likely to occur…” (Washington Post 2010).

The provisions of Security Council Resolution 1373 have been in existence since 2001. Successive Sri Lankan governments did not deem it necessary to incorporate provisions of Resolution 1373 into domestic law perhaps of the belief that provisions of Prevention of Terrorism (Temporary Provisions) Act (No. 48 of 1979) provided sufficient cover to deal with all aspects of terrorism. What they did not appreciate was that PTA addresses only acts committed by perpetrators and not those who support, finance and promote others to commit acts of terrorism. The opportunity to justifiably incorporate provisions of Resolution 1373 as part of amending the PTA was not seized by Sri Lanka. This means that if Sri Lanka decides to do so at a later date it would have to do so as a stand-alone law that would inevitably be subjected to petitions. Instead, what Sri Lanka should have done was to have made provisions of Resolution 1373 as part of the PTA, thus combining acts of terrorism by perpetrators as well as those who support, finance and promote such acts.

Conclusion

The Island report fruther states that the Indian National Investigation Agency (NIA) has launched a probe in connection with the arrest of three Sri Lankans with false passports who were allegedly involved in raising money to revive the LTTE”. The report also states that other Sri Lankan nationals had been arrested in 2021, also for possessing false passports. The Island refers to a report from The Hindu that Sri Lankan nationals operating from European countries are working towards drawing huge sums of money from dormant accounts to revive the LTTE.

While developments to revive the LTTE are under way, the focus in Sri Lanka is on the amended Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 that is tabled in Parliament. The observations of civil society analysts and commentators are that the amended PTA does not go far enough. What they fail to realize is that even if the PTA is amended to be in keeping with international standards, all its provisions would relate ONLY to perpetrators of terrorist acts. The fact that the amended PTA does not contain provisions to prevent and suppress raising funds does not appear to concern them. Furthermore, the fact that it is the input from those who raise funds, advise and promote terrorism that enable and facilitate the perpetrators, does not also seem to occur to them. It is this realization that prompted the Security Council to introduce SC Resolution 1373 and called on all Member States to incorporate its provisions, to prevent and suppress terrorism, into its Domestic Law. The incorporation of provisions in the amended PTA would amount to fulfilling these international obligations. Hopefully, Sri Lanka’s Parliament would as the last resort prevail and ensure that provisions of Resolution 1373 are incorporated into the body of domestic law.

At the time of the Easter Sunday terrorist attack on 21 April, 2019 the only legal provisions available were those in the PTA and the Penal Code. Consequently, the scope of the inquiry has to be limited to the perpetrators and the lapses on the part of those responsible for security. No provisions existed to extend the inquiry to cover those who funded, planned and engaged the perpetrators – in other words those behind the scene that made it happen. Consequently, although the scope of the inquiry has been a cause for disappointment, the fact remains that it is constrained by the limits of the existing law. This lacuna will remain until provisions of Resolution 1373 are incorporated ito domestic law at least for the sake of the victims.