Delisting of former proscribed entities

By Neville Ladduwahetty

A media release issued by the Ministry of Defence (MoD) says, “The ban was lifted after a study was conducted by a committee consisting of the Ministry of Foreign Affairs, the Attorney General’s Department, intelligence agencies, law enforcement agencies, and the Financial Intelligence Unit of the Central Bank of Sri Lanka.”

The report also states: “According to the Ministry, 577 individuals, and 18 organizations, had been blacklisted, in 2021, for financing terrorism, under the United Nations Regulations No. 01 of 2012. However, following lengthy considerations, it was decided to delist 316 individuals, and six organisations as they no longer continue to fund terrorist activities, the Ministry said” (Daily FT, August 17, 2022).

According to the above statement, by the MoD, the reason for delisting some individuals and organisations on the basis that “they no longer continue to fund terrorist activities”. However, United Nations Regulations No. 01 of 2012, referred to in the MoD release, is based on “the Minister of Foreign Affairs promulgating the United Nations Security Council Resolution 1373 (2001) designating individuals, and entities, related to terrorism and terrorist financing, in national level. Accordingly, Institutions are obliged to have measures, in place, to identify and freeze funds, financial assets or economic resources of such designated persons, and entities, upon order by the Competent Authority who is Secretary to the Ministry of Defence. The Secretary to the MoD is appointed as the Competent Authority for the implementation of UNSCR 1373 and its successor resolutions in Sri Lanka.

When the Minister of Foreign Affairs promulgated UNSC Resolution 1373, it was limited ONLY to “identify and freeze funds, financial assets or economic resources”. This is too limited because it misses the full scope of 1373. The scope of UNSCC Resolution goes beyond to “any form of support, active or passive, to entities”. Therefore, since these provisions cover activities far beyond funding terrorist activities, the comment in the MoD release that those delisted “no longer fund terrorist activities” is too limited a basis for delisting; a fact that is evident from the UNSCR 1373 provisions presented below. This is a serious lapse in the interpretation of UNSC Resolution 1373, by the Minister of Foreign Affairs, and followed by the MoD, and all those organizations, and individuals, who participated in making the decision to delist some individuals and organizations, however rigorous their investigations were.

PROVISIONS of UNSCR 1373

SC Resolution 1373 states as follows:

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 border controls and controls on issuance of identity papers and travel documents, and through measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents;

This interpretation is amply demonstrated in the judgment given by the United States Supreme Court in the case of Holder v Humanitarian Law project cited below.

According to the Court “material support” to terrorist means “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”.

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 judgment 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…” (Ibid).

EFFORTS to REVIVE the LTTE

The Island of January 31, 2022, carries a report that states: “The Indian National Investigation Agency (NIA) has registered a case and launched a probe in connection with the arrest of three Sri Lankan nationals with fake passports who are allegedly involved in raising money to revive the LTT ….”

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 advise and support the many facets of LTTE activities. However, 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 not only fund raising but also material support, needs to be established if they are to prevent and deter terrorism. If not, they need to be extended beyond, into 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.

CONCLUSION

The press release issued by the Ministry of Defence states: “577 individuals, and 18 organizations, had been blacklisted in 2021 for financing terrorism under the United Nations Regulations No. 01 of 2012. However, following lengthy considerations, it was decided to delist 316 individuals and six organizations as they no longer continue to fund terrorist activities the Ministry said” (Daily FT, August 17, 2022).

This means nearly 55% individuals and 33% organizations were delisted from a list as recent as 2021. According to the press release, this decision was taken after a study was conducted by a galaxy of individuals representing the Ministry of Foreign Affairs, the Attorney General’s Department, intelligence agencies, law enforcement agencies and the Financial Intelligence Unit of the Central Bank of Sri Lanka on the basis that “they no longer continue to fund terrorist activities”

However, United Nations Regulations No. 01 of 2012 referred to in the MoD release is based on “the Minister of Foreign Affairs promulgating the United Nations Security Council Resolution 1373 (2001)”. The promulgation of UNSC Resolution 1373 by the SL Minister of Foreign Affairs is limited ONLY to prohibiting fund raising for terrorist activities. Section 2 of Resolution 1373 prohibits “any form of support, active or passive to entities or persons involved in terrorist acts…”. Therefore, the basis for delisting is NOT in keeping with the provisions of UNSC Resolution 1373. This reflects poorly on Sri Lanka’s obligations to the Security Council.

Despite the fact that the grounds for delisting cannot be justified on the basis claimed that “they no longer continue to fund terrorist activities”, the reason for doing so appears to be a measure adopted by the government to encourage the participation of the diaspora “as it is a strength and source of investment”, as stated by the President. In fact, the President went on to suggest that Sri Lanka should “set up a Special Diaspora Office” (Ceylon Today, August 18, 2022).

While the intention to set up a Special Diaspora Office to attract diaspora funds has merit, by delisting first and hoping the diaspora to respond by way of investments is too much to expect in the absence of a quid pro quo. Therefore, the diaspora is bound to expect a political solution to gain their confidence, as suggested by the TNA (The Island, August 21), before they become a “source of investment”. Under the circumstances, the grounds for investment would become a bargaining chip to extract the most expansive of political solutions such as a federal arrangement as indicated by one of the delisted entities. Since such an outcome would be a certainty, it would have been more prudent to delist only those who invest, instead of opening the flood gates without any assurances in place.

The reason for such caution is twofold. The unhindered access to Sri Lanka by those delisted could present opportunities for them to engage in active and/or passive support to encourage the revival of the LTTE as reported by the Indian National Investigation Agency. No amount of vigilance by the security establishment would reveal clandestine arrangements as took place with the activities that precipitated the Easter Sunday terrorist attack. The other is that the front runner for the Prime Ministerial post in the UK, Rishi Sunak, has at a meeting with British Tamil conservatives stated: “the UK will continue to play a central role to bring about justice and accountability” (The Island, August 21, 2022). “In his statement, he stressed his support for the latest UN Resolution on Sri Lanka, which mandated the collection of evidence that may be used in a future war crimes tribunal” (Ibid).

To delist 55% individuals and 33% organisations from a year-old list in the expectation of attracting diaspora investments against the background of the support of a future UK government, and the expectation of a federal arrangement as a political solution without assured commitments is beyond any sense of reality because it would be too high a price for the People of Sri Lanka to accept. Instead, what the MoD should have done was to delist only those who have shown or show good faith by investing to build a prosperous Sri Lanka.