Facets of Terrorism

FACETS OF TERRORISM

  This paper was read in INDIAN CRIMINOLOGY CONGRESS THE 1^ST INTERNATIONAL AND THE XXX ALL INDIA CRIMINOLOGY CONFERENCE OF INDIAN SOCIETY OF CRIMINOLOGY organised by University of Calcutta in February, 2007

Main Theme: Crime and Justice in a Changing World

Sub Theme: Facets of Terrorism

Introduction:

          After the 9/11 attacks on the world trade center, the total view of world towards terrorism has changed. The way in which terrorists committed this crime is showing the change in the form of activities, tactics, nature, application of means. Before this attack, normally kidnapping, air hijacking, bomb blasts, suicide bomb, assassination were used as tactics of terrorist activities. And it could be said that this attack had the combination of almost aforesaid tactics. The means, methods and weapons adopted by terrorist groups and organization take technology using hi tech facilities available in the form of communication system, transport and sophisticated armaments. For this, mostly highly educated intelligent youth power is used. They are victims of poverty, ethnic and religious ideology and vengeance.

          Facets of Terrorism includes not only definition, characteristics but also the deep discussion of psychological factors, ideology behind terrorist activities, new version of terrorism like cyber terrorism, nuclear terrorism, bio-terrorism, terrorists and terrorist profiles and prevention measures, laws and international conventions against the terrorist activities.        

      

             Definition of Terrorism

          Terrorism is a mode of violence involving the systematic use or threatened use of murder, injury and destruction to intimidate or shock a target group wider than the immediate victims, or to create a climate terror. --- Dictionary of Criminology

         

            On March 17, 2005, a UN panel described terrorism as any act: “intended to cause death or serious bodily harm to civilians or non-combatants with the purpose of intimidating population or compelling a government or an international organization to do or abstain from doing an act.”

                      There are many definitions of terrorism and controversies in the term. Simple definition is the unlawful use or threatened use of force or violence by a person or property with the intention of intimidating or coercing societies or governments, often for ideological or political demands.

           Historical Perspective of Terrorism

          When one studies the history of terrorism one is astonished to find that even though terrorism has accelerated in the last quarter of this century it has existed from times immemorial.

       Kautilya’s Arthshastra contains detailed techniques of assassination and terrorism. The assassination of Julius Casear in 44 B.C. can be considered an act of terrorism. In fact, the word assassination is derived from Arabic term ‘Hashish’. Historic references to the term terrorism first appeared during the “Reign of Terror” in French Revolution.

Horror Chart of Recent Terrorism Examples

1.September 11, 2001: Attack on World Trade

2.December 13, 2001: Attack on Indian Parliament

3.October 12, 2002: Car bomb exploded in Denpasar.

4.July 7, 2005: Bomb blasts in three underground trains in London

5.July 17, 2006: Serial bomb blasts in western local railway in Mumbai

Characteristics of Terrorism

          Each act of terrorism is distinct from any other such act, circumstances, agenda, motives, modus operandi, and scheming may all be diverse and therefore the features dominant under one type of terrorism may differ from others. Following are main facets of terrorism.

1. Terrorism is used to promote political goals.
2. Normally uses violence or threat of violence
3. The motivation may be to get publicity, exposure and sympathy for cause, to obtain the release of imprisoned terrorist, to discourage impending foreign governmental assistance programmes and foreign investments and to get ransom, which may be in cash or arms and ammunition.
4. Most terrorists take credit of what they have done. They may do this by contacting a newspaper or journalist before or after the act to explain their cause.

Psychological and Motivational Factors

1. Paranoia (a mental disorder characterized by delusions, hallucinations and progressive deterioration of personality), particularly in the case of charismatic leaders has been suggested by Hassel.(1977)
2. Lack of self-respect and consequent feeling of self worth acquired by terrorist.
3. Possony suggested that a combination of genetics and climate and conducive to terrorist leads behaviors.
4. Personal gain in terms of easy money, leadership, future chance of leadership, fame has also motivated quite a few terrorists.
5. Ideology, especially religious or ethnic ideologies have seen to be causal factors. Repeated lecturing and brain washing have led quite a few youth to embraces terrorism.

        If the terrorists are otherwise ordinarily, unremarkable people then one need to examine why have these normal people decided to engage in such an extreme activity as political violence. Once you are forced to throw away the terrorists are different model, then attention must be given to other areas. An important realization is that becoming involved in terrorism is a process. No body is born a terrorist. There is no bad gene at work here. Neither does anyone wake up one morning and decide that on that day they are going to start planting Bombs in public streets. Becoming a terrorist is in the first instance an issue of socialization. Any society will possess some minorities or disaffected groups who rightly or wrongly perceive that the world is treating them harshly. In some cases there are genuine and very substantial causes for grievance. Individuals who belong to or identify with such disaffected groups share in as sense of injustice and persecution. It is from such pools that individual terrorist emerge. The move from the disaffected to the violent extremist is usually facilitated by a catalyst event. Normally this is an act of extreme physical violence committed by the police or security forces or other rival group against the individual, family, friends or simply anyone they can identify with. The combination of sense of belonging to a beleaguered group combined with the experience of an art of extreme violence against either oneself or significant others is the impetus for some to engage in terrorism.

         

          Psychology offers real insight in the understanding of terrorism and in the search of an end to terrorist conflicts. It has to be focused on the crucial lessons in terms of educating with a mind to opening doors for improved prevention and more flexible resolution. The levels of ignorance, misconception and prejudice concerning terrorism that need to be overturned are immense, but in doing so there are genuine opportunities to achieve and safeguard peace and security for all.

         

Types of Terrorism:

          There are new tactics of terrorism in changing world i.e. cyber terrorism, bio terrorism, eco-terrorism, narco terrorism, state terrorism, etc.

         

Counter measures against the terrorism

          Fighting against terrorism is a war against false ideology. It is not an easy task. In the words of Paul Wilkinson, “Fighting terrorism is like being a goal keeper. You can make a hundred brilliant saves but the only shot that people remember is the one gets past you.” Since independence, India has faced terrorist movements in Punjab, Jammu & Kashmir and insurgent activities in North Eastern States, Tamilnadu, Bihar, Andhra, etc. To curb on these activities we have international treaties like International Convention for the Suppression of Terrorist Bombing, Hague Convention for Aircraft Hijacking, etc. In India, there were TADA, POTA, etc. These Acts are repealed. Now there are laws like Unlawful Activities (Prevention) Amendment Act, 2004, MCOCA (only for State of Maharashtra). Whether repeal of POTA is justifiable or not is another discussion. But, MCOCA Law is much similar to POTA and gets success in the State of Maharashtra.

          TADA and POTA were repealed because they were decided as anti-minority Acts. It is mere bogy of the politicians. The conviction rate of TADA cases is 0.9% but POTA got much success. Even The Maharashtra Control of Organised Crimes Act, 1999 (MCOCA) has similarities to the POTA.

          The word Terrorism has many shades and many colours. There is no global profile and taxonomy of terrorism itself though it has received quite intense attention from the governmental security agencies, the media and the policy makers. It would require immense understanding and a cohesive strategy involving all the above partners for combating the terrorism as is being faced by the world. It is not possible to provide a blanket prescription for ending terrorism but certain practical and workable guidelines can be spelt out for coordinating the governmental agencies and departments in its suppression. The popular local support a terrorist organization receives makes it more difficult to combat it in isolation. A multi-agency approach is therefore essential.

Will A.D.R. affect the Legal Profession?

The compromise is the art of dividing a cake so that everybody believes he/she got the biggest piece.” – Ludwing Erhard

Introduction:

A.D.R. means Alternative Dispute Resolution and it includes Arbitration, Mediation, Conciliation, Negotiation, and Mini Trial. These are fast dispute resolution systems, which can be parallel and/or collateral to the Court System. Especially, in mediation system, a natural and impartial third party i.e. the mediator facilitates dialogue in a structural multistage process to help parties reach a conclusive and mutually satisfactory agreement.

v  Need of A.D.R.

Over the years, more cases have accumulated in our courts. The litigation whose case is not worth a contest has developed a mind-set that there is nothing wrong in delaying justice, either by compelling the other party to go to a court of law or by himself moving to the court and keeping the issue subjudice. It is obvious that the Government of India will not be able to establish all the needed courts in a short span f time. Alternative methods must therefore be necessarily found, even otherwise.

The problem of overcrowding of dockets is not peculiar to our country. Such problems have been and are faced by almost every country in the world. Necessity became the mother of invention in several countries. Alternative Dispute Mechanisms were evolved and adopted in many countries like U.S.A., Australia, etc. The U.S.A. was a more litigious country than ours. So, these countries have introduced Federal and State legislations, Rules of Court to enable parties to resort to mediation voluntarily or by compulsion (by what is called court annexed mediation). Initially, there has been some resistance from Bar. But gradually, once the systems were implemented, the Bar and the Bench found that litigants did benefit enormously in terms of time and money and conciliation and mediation became popular. In U.S.A., in 20 years, surprisingly the settlement rate rose upto 94%. There are similar success stories in other countries like Australia, U.K., New Zealand, etc.

Human beings, when it comes to dispute relating to money or property or status, are all the same, everywhere round the globe. Selfishness, strength of money power for protracting litigation or ego are common features. If the conciliation / mediation solution have been successful in other countries, they must and will succeed here also. Where the problems are same, the solutions could be similar, though there may be differences in degree or the methodology adopted.

The procedure for conciliation and mediation are today part of the systems of almost every judicial administration both in common law countries governed by civil law systems. The fact that we have woken up in 1999 and started to enforce Section 89 of Code of Civil Procedure only from 1^st July, 2002, should not matter. Better late than never.

Another climax about need of A.D.R. is Globalisation, Privatisation and liberalisation has taken place in 1991. The multinational companies made demand for A.D.R. systems in India. Mainly, disputes of these companies have been solved by the Arbitration. Latest example of Arbitration is dispute between Sahara Airways and Jet Airways as well as dispute resolution by mediation in partition matter of Ambani brothers.

Why A.D.R. Techniques became popular?

            The normal adversarial court system faces the following main problems –

1. Delay
2. Expense
3. Rigidity of Procedure
4. A reduction in the participatory role of parties.

Besides the rigidity of procedure of procedure, courts allow for a limited participatory role for parties. Litigants who contest their case in person are often times seen to give vent to their emotions, opinions, perceptions and interests. The court is not necessarily concerned with all of these since the primary duty of the court is to dispose justice according to law.

The advantages of A.D.R. is that it –

1. focuses upon the parties’ own needs and interests,
2. provides for a full disclosure of competing interests and positions
3. confers upon the parties a right of self determination
4. allows for procedural flexibility
5. maintains privacy and confidentiality
6. creates win-win situation in the minds of parties
7. separates the problem from the people
8. saves the time and money

The main Issue of The Discussion:

            “It was the duty of lawyers to make efforts to settle disputes and that by doing so, lawyers would not be losers.” – Mahatma Gandhiji

He further stated that he, in fact, built up a reputation that he would always appear for the party whose case was invariably the just one. Therefore, the systems of conciliation and mediation are as much part of our cultural heritage as they are in any other country.

The natural meaning of the issue is in negative sense. It means will A.D.R.  ruin the practice of Advocate? There may be, not quite surprisingly, resistance from the part of legal profession towards the acceptance of mediation because of the fear that a reduction of litigation may ultimately result in dilution of the work. This point is explained by some advocates as –

In the Court System,

Side 1: Advocate for Disputant

Side 2: Advocate for Disputant

But in Mediation/Conciliation Process,

Mediator/Conciliator who may be an Advocate

Side 1: Disputant Party

Side 2: Disputant Party

This means at least 50% work loss in case of mediator is advocate and in other time that work loss to lawyers may be 100%

            Another blame on the mediation process is there is no binding enforceability. Even though mediation agreement has been done through Court, then if there is breach of it, then ultimate result will be – Litigants will come to the Courts again.

            In fact the persons who say A.D.R. affect the legal profession badly, they forget the following things:

1. Every Advocate cannot become successful mediator:

            The process of mediation is totally different from the Court System. In mediation process, the emotions, privacy, confidentiality, win-win situations are taken into consideration. So, every advocate cannot acquire the skills of mediator.

2. Saturation of work will be disbursed:

            There is always statement of lawyers who oppose the A.D.R. mechanism that already there is saturation of work. But this is mere boogie. If A.D.R. mechanism spreads over India, then saturation will also decrease.

3. A.D.R. cannot work everywhere:

            A.D.R. is not generally successful when –

1. A party does not have a significant decision maker
2. Dispute involves important issues of law or public policy
3. One party is in weak position and other party is in strong position i.e. there is an imbalance of power
4. One party wants to delay resolution of dispute for one or the other
5. The dispute involves significant questions like government policy
6. The dispute involves the question of law

The above discussion reveals that if A.D.R. does not work in all sectors, then how it affects the legal profession in bad manner and how it ruins the practice of advocate.

Conclusion:

            Traditionally, the role of the lawyer in our legal system is associated with the functioning of Courts. Mediation does not postulate the displacement of the lawyer. Mediation does, however, contemplate a shift in the focus of the legal profession.

            For this purpose, this sense of awareness has to be created in the legal profession on an urgent basis by promoting a dialogue within the profession and between the professional and non-professional bodies. A determined effort has to be made to acquaint members of the Bar of the importance of mediation and of the special obligation, which the mediation process casts upon them.

            Professional bodies (such as the Bar Council in each State) conduct Refresher Courses for lawyers and it would be appropriate if knowledge and awareness in mediation were imparted through such bodies.

            Some of the premier law schools in the country have incorporated A.D.R.  Techniques as a part of the curriculum. But this development has largely been isolated. The programme of awareness and advocacy must extend to student of law who will be lawyers of the tomorrow. The success of the movement towards the mediation will depend in a large measure upon the co-operation of the legal profession.

            Awareness, advocacy and the need for positioning senior members of the Bar in positions of leadership is the sine qua non in order that A.D.R. is able to develop into a viable system.