Global Criminology Research Paper

Global Criminology
Crime and Victimization in a Globalized Era

Global Criminology
Crime and Victimization in a Globalized Era

Edited by

K. Jaishankar and Natti Ronel

Boca Raton London New York

CRC Press is an imprint of the
Taylor & Francis Group, an informa business

Cover Image: Designed by Ueilon Teixeira, based on his winning entry of an open competition at http:// www.worth1000.com. Published with permission.
Design work on Cover Image: A. Ravisankar, Sun Graphics, Tirunelveli, Tamil Nadu, India.

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Visit the Taylor & Francis Web site at http://www.taylorandfrancis.com and the CRC Press Web site at http://www.crcpress.com To my “Second Brain” and incredibly supportive friend and wife,
Debarati, and our sweet little heart, our daughter Mriganayani.
K. Jaishankar
To my closest friend and beloved wife, Gila, and our hopeful next generation, our children Dror and Tohar.
Natti Ronel

Contents

Foreword xi
Acknowledgments xiii
Editors’ Introduction: Crime and Victimization in the Globalized Era xv Editors xxv
Contributors xxvii
Scientific Committee of Reviewers xxxvii Section I
TERRORISM

1

How Nonstate Are Terrorist Groups in Pakistan?
Analysis of State Responsibilities and
Accountability 3
ASHUTOSH MISRA

2

Sea (Maritime) Piracy in the Southern African
Development Community Region

37

MOSES MONTESH

3

The Responsibility to Protect from Terror:
Putting an End to Unilateral Misuse of the
Precautionary Principle

57

HARJASS SINGH

4

Terrorist Financing in Southern Africa: African
Commitment to Combating Terrorism
VINESH BASDEO

vii

69

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Contents

Section II
CYBER CRIMES AND VICTIMIZATION

5

Use of Electronic Evidence in South African Law:
Embracing Technical Change

85

FAWZIA CASSIM

6

Hacking and Fraud: Qualitative Analysis of
Online Offending and Victimization

93

ALICE HUTCHINGS

7

Cyber Victimization in India: Preliminary Study

115

DEBARATI HALDER, K. JAISHANKAR, E. ENANALAP
PERIYAR, AND R. SIVAKUMAR

8

Arabic Muslim Hackers: Who Are They and
What Is Their Relationship with Islamic
Jihadists and Terrorists?

137

ALAELDIN MANSOUR MAGHAIREH

9

Sexual Harassment over Cell Phones: A Survey of Women in Dhaka City

151

UMMEY QULSUM NIPUN

Section III
MARGINALITY AND SOCIAL EXCLUSION

10

Community Reentry from Jail for Mentally Ill
Offenders: Challenges of Program Implementation 177
DALE K. SECHREST, GISELA M. BICHLER, DON A. JOSI,
AND DAVID SHICHOR

11

Locked In and Locked Out: Global Feminist
Perspectives on Women and Imprisonment

199

HELEN CODD

12

Criminalization of Beggary: A Critical Look at the Indian Legal Approach
A. NAGARATHNA

219

Contents

13

ix

It Is Crime, Not Racism: Victimization of Indian
Students in Australia
241
GAIL MASON

14

Forced Displacement and Its Implications for
Youths’ Distress and Posttraumatic Growth

253

AVITAL LAUFER AND MALLY SHECHORY-BITTON

Section IV
THEORETICAL AND PRACTICAL MODELS
OF CRIMINAL VICTIMIZATION

15

Forced Marriages, Bride Price, Levirate, and
Domestic Violence: Victimization of Women and Struggles for Justice and Equity in Selected
African Countries

271

VICTORIA M. TIME

16

Beguiling Eve and Her Innocent Counterpart:
Victim-Offender Identities in the Criminal
Justice Process

289

COLLEEN MOORE

17

Extending the Logic of Functional Explanations:
A Theoretical Model to Explain the Victimization
Process during an Indian Witch Hunt
315
SOMA CHAUDHURI

18

From Criminal Spin to Positive Criminology

335

NATTI RONEL

19

Intimate Partner Violence Victimization:
Perspectives from Spouses of Alcohol Dependents 353
K. JEEVITHA AND L. N. SUMAN

Conclusion 365

Foreword

The editors point out in their introduction that when criminality becomes global, also the response to it must become global. We need a global criminology. The earliest pioneers in criminology and victimology emerged in
Western Europe and North America: Cesare Lombroso, Enrico Ferri, Raffaele
Garofalo, Hermann Mannheim, Leon Radzinowicz, Hans von Hentig, and many others. Ever since that time, the two sides of the North Atlantic have been the bedrock and point of reference for these disciplines. This has been both a strength and a weakness. Strength, in that the two regions have provided a welcoming academic and governmental background for the study of crime and victimization, allowing for the development, testing, and application of new theories and research methods. Weakness, in that the research interests in capitalistic, urbanized, and postindustrialist societies are likely to follow specific paths. Because of the dominance of Western research, its conclusions may all too readily be assumed to apply to societies around the world, East and West, North and South, industrialized and industrializing.
It is true that Western criminology and victimology have spawned comparative studies, which have tried to offset this imbalance. Even so, Western researchers cannot totally shake their research interests and cultural blinkers. Comparative studies in these fields have tended to assume that Western research should remain the touchstone. If a topic or a research approach is suitable for Western Europe and North America, it is assumed to be more or less equally so for Latin America, Africa, and Asia. The fundamental interest seems to be to find out how different or similar the situation is elsewhere— but using Western yardsticks in the process.
We should go beyond this. In order for criminology and victimology to become truly global, we should follow the mantra of the environmentalists: “Think global, act local.” We should seek to understand and respect the interests and concerns of the different regions and integrate these into our research. For this reason, the initiative of the South Asian Society of Criminology and Victimology (SASCV) to start a series of peer-reviewed international conferences is more than welcome. The themes of the first such conference, held in Jaipur, India, in January 2011, were wisely selected to allow for discussion of traditional mainstay criminological and victimological themes, xi xii

Foreword

as well as of cutting-edge concerns. The themes were also selected to allow equally for participation of researchers from inside and outside the region, which led to spirited discussion and the cross-fertilization of ideas. The 19 contributions included in the present volume are but a sample of the papers delivered in Jaipur, but even these reflect the diversity.
The chapters of this book have been grouped into four sections. The first section looks at terrorism, an issue that is torn out of today’s headlines and operates at the intersection of international law, international politics, crime, and victimization. The second section looks at cybercrimes from a variety of angles, including law, the motivation of offenders, and the impact on victims.
The titles of the third and fourth sections—marginality and social exclusion, and theoretical and practical models of criminal victimization—may have a comfortably familiar ring in the ears of Western criminologists and victimologists, but the reader will find that the authors often take the discussion away from classic Western discourse, into new and intellectually refreshing
(albeit often substantively troubling) areas.
The volume is an admirable example of how global criminology and global victimology can be enriched by studies that start from the local or national level, often outside of the dominant Western mainstream. “Eveteasing,” witch hunts, nonstate armed groups, begging, trokosi, levirate— these are not the traditional topics of Western research, but they are deserving of attention.
This book, Global Criminology: Crime and Victimization in a Globalized
Era, goes a long way to connecting the dots between phenomena such as these and wider globalized concerns. I find that this edited volume will be a very welcome contribution to the fields of criminology and victimology, nationally, regionally, and globally. I thank the editors for allowing me to be a (small) part of this process.
Matti Joutsen, PhD
Director
European Institute for Crime Prevention and Control aἀ liated with the United Nations (HEUNI)
Helsinki, Finland

Acknowledgments

We sincerely thank the reviewers of this book: Adam Bossler, Ety Elisha,
Glenn Dawes, Inna Levy, Janice Joseph, Kam C. Wong, Keren CohenLouck, Keren Gueta, Kushal Vibhute, Mark David Chong, Michael
Bacchman, Michael Pittaro, Moshe Bensimon, Muzammil Quraishi,
Orly Benjamin, Orly Turgeman-Goldschmidt, Sarah Ben David, Simha
Landau, Sophie D Walsh, Stanley Yeldell, Stephen Z Levine, Thomas Holt,
Tina Patel, Uri Yanay, and Yuning Wu. Without these people, the quality of the book would not have been ensured.
Ueilon Teixeira, a 16-year-old child prodigy from Brazil, was kind enough to provide his image for the cover page of this book without any fees, which aptly fitted with the theme of the book. We thank him from the bottom of our hearts. A. Ravisankar, the official designer of the first International
Conference of the South Asian Society of Criminology and Victimology
(SASCV 2011), had several sleepless nights and we sincerely thank him for his dedication, patience, and passion. Ravisankar also designed the text for the cover page of this book. Our heartfelt thanks are due to Periyar and
Sivakumar, the editorial assistants, for their dedicated and sincere support in bringing out this publication.
We met Matti Joutsen, the Director of the European Institute for Crime
Prevention and Control, affiliated with the United Nations (HEUNI), at the
14th International Symposium of the World Society of Victimology (WSV) held during May 20–24, 2012, at The Hague, the Netherlands. We requested him to write a foreword to this book and he was kind enough to write an excellent one. We are very grateful to him for accepting our request.
We earnestly thank all the keynote speakers, plenary speakers, and panel chairs of SASCV 2011. We thank all the sponsors, advertisers, and knowledge partners who provided a great support to the conference, which greatly helped us in this intellectual pursuit. Our respective employing establishments, the Manonmaniam Sundaranar University, India, and the Bar-Ilan
University, Israel, provided a working environment conducive to critical refraction. Without their support, it would not have been possible to conduct such a large event and also bring out this publication on time.

xiii

Editors’ Introduction:
Crime and
Victimization in a
Globalized Era
K. JAISHANKAR
NATTI RONEL

The phone call was from an unidentified number. A young man on the other end of the line explained politely that he worked for the security department of the bank in Israel where she held her account. He went on to explain that they suspected that a criminal group had somehow obtained her credit card details and would produce a forged card to be used later on. “Did you withdraw money from the ATM at that location?” he asked, and described a location not far from her house with the exact amount that she had recently withdrawn. “Well, yes. But what can I do now?” “Don’t worry, your card is already cancelled. You will get a new one very soon.” A few hours later, there was another call from the security department, with a very strange question:
“Are you in Israel right now?” “Of course I am.” “Well, just now there was an attempt to withdraw money using a card with your details in Brussels!
We just wanted to be sure that it was not you. Since you are in Israel at this very moment, you can’t be in Brussels!” “But what I should do in order to prevent any loss?” “Don’t you worry about it—that is what we are here for! It is already taken care of. Have a good day.”
Crime and criminality are as old as humanity and are widespread almost everywhere humans go. Although crime is almost always occurring, its definitions and manifestations might greatly vary through societies and cultures. Respectively, the postmodern, hi-tech, global world meets typical manifestations of crime in addition to the known localized ones. Some manifestations are new since they are the results of present-day means, as the example above represents. Some, however, are old phenomena with new, globalized manifestations. The above-described true story, which recently occurred, exemplifies what it is to live in a hi-tech global village in regard to criminology: The details of a credit card were electronically stolen from an ATM and, almost immediately, they were transferred to a faraway location, in another country even, to be criminally used. One characteristic of the global village is that it is an easy task to obtain money from a bank account almost anywhere in the “village.” But it is almost as easy a task to xv xvi

Editors’ Introduction

abuse this convenience for easy money. However, this story exemplifies not only the globalization of opportunity and crime, but also of the response. A global type of crime requires a global response. In this case, there was such a response, as sophisticated and hi-tech as the crime itself was, with international cooperation, and luckily the offenders failed.
To successfully meet the new challenge of globalized crime, there is a need for a cooperation, resources, and knowledge at every level, including the research-based and scholarly level. Sharing scientific criminological knowledge is a must in the global effort to study, explore, and reduce global crime.
In a global era where criminality becomes global, there is a need for global criminology as well.

First International Conference of the South Asian
Society of Criminology and Victimology (SASCV 2011)
The South Asian Society of Criminology and Victimology (SASCV) is an international association founded in 2009 to nurture criminology and victimology in South Asian countries. Academics, researchers, and practitioners worldwide have joined hands to establish SASCV and share best practices in the context of South Asia. SASCV hosted its first international conference during January 15–17, 2011, at Hotel Jaipur Greens, Jaipur, Rajasthan. The website of the conference was www.sascv.org/conf2011 and online submission of abstracts as well as registration was facilitated on the site.
The theme of the conference was “Crime and Victimization in the
Globalized Era.” The major subthemes were terrorism and extremism, cybercrimes, laws and security, crimes of culture and culture of crimes, marginality, social exclusion and victimization, criminal victimization in South Asia, and victimization of South Asians in other countries. The organizing committee of SASCV 2011 was as follows: general chair, K. Jaishankar; vice chair,
S. Samuel Asir Raj; program chair, Natti Ronel; administrator, Debarati
Halder; event management chair, R. Jayachandran; treasurer, R. Sivakumar; and associate, E. Enanalap Periyar. An international advisory committee comprising members of the SASCV international advisory board was formed to assist the organizing committee.
The first international congress showcased the academic thoughts of professors, practitioners of criminal justice system, professionals in related fields, and students of national as well as international origin from various backgrounds, such as criminology, victimology, law, human rights, digital technology, and socio-health sectors. The conference was inaugurated by Dr. Mahindra Surana, IAS (Retd.), the editorial advisor of Dainik
Bhaskar (a leading newspaper in India) and Professor Roy King, Institute of Criminology, University of Cambridge, UK, was the opening keynote

Editors’ Introduction

xvii

speaker; he spoke on terrorist gangs and prison torture. The panel of other keynote speakers included: Professor David Wall, Department of Sociology and Criminology, Durham University, who spoke about cybercrime;
Professor Mark Groenhujsen, president of the World Society of Victimology, who presented the UN draft bill on victim’s rights; and Dr. Gail Mason, director of Sydney Institute of Criminology, who deliberated on the victimization of Indian students in Australia. The conference concluded with the valedictory address by Natti Ronel, Bar-Ilan University, Israel, and a keynote presentation by Professor Emilio C. Viano, Department of Justice Law and
Society, American University, Washington DC. More than 300 participants were present at the conference, including 120 paper presenters. The conference was a great success.
A rigorous peer-review process is not the forte of social science conferences held in the South Asian region. SASCV 2011 is unique in this context. Overall, 291 papers were meticulously peer reviewed by the program committee chaired by Natti Ronel, Bar-Ilan University, Israel. The rate of acceptance was 53.26% and the rate of rejection was 46.74%. After the conference, an expert committee was constituted to select quality papers based on the extended abstracts and presentation of the authors at the conference, and revised papers were invited from the selected authors. Papers were rated as A and B. Papers that were rated as A were selected to be published in this book as chapters, and papers that were rated as B were published in a special conference volume of the International Journal of Criminal Justice
Sciences (the official journal of the SASCV, an open access journal available at www.ijcjs.co.nr). After rigorous peer review, out of 120 papers presented at the SASCV 2011 conference, 19 papers were rated as A and 7 papers were rated as B and were selected for publication.
The peer-reviewed papers, which were presented at SASCV 2011, provide an initial enterprise of defining global criminology and its fields of interest.
Most of the various themes of these papers represent the challenges that globalized criminality offers to global criminology: 1. Terrorism: Terrorism is an old, known manifestation of violence.
Traditionally, it was mostly narrowly targeted toward certain locations and people and represented a domestic violent and brutal struggle that involved and victimized innocent passersby. However, toward the end of the last millennium, terrorism was transformed into one of the most noticeable threats of our days. Sometime before
September 11, it went out of its more localized nature into a globalized one wherein it blindly victimized places, people, and countries.
However, the September 11 event took this process further and terrorist groups became more violent, more daring, more universal. Is it a crime issue or a national (global) defense issue? Should

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Editors’ Introduction

terrorists be treated as war criminals, soldiers, or civil criminals?
What are the power relations between international efforts to prevent terrorism and local efforts? Can we define a global law or a global antiterrorism act? Global criminology will have to deal with such issues in an attempt to provide directions for solutions. 2. Cybercrime, cyber security: The cyber, virtual world is newly created. It provides us with resources and opportunities that were but a dream until recently. Naturally, such opportunities created new manifestations of crime that associate old and known criminal motivations with new means to accomplish them. Cyberspace provides anonymity, immediate availability, global access, and the possibility for inventions, and cyber offenders easily abuse these open routes.
As cyberspace develops, cybercrime also develops. To achieve better cyber security, there is a need for a new knowledge to be acquired, a task for global criminology.
3. Social exclusion and inclusion: Globalization is manifested, among others, in the fast transition of people between places, societies, social classes, and cultures. Here and there, are but close neighborhoods in the global village and one can easily move in between. Known social constructions are destroyed for new ones. But many are left aside or behind. Being part of the margin, people are excluded from important resources: material, social, or human. They may be victimized, or react in a criminal rebellion, as criminology has known for decades. However, how can we provide inclusion for the marginalized ones in the global era? 4. Victims: Victimology is not so much a new topic as a mature one.
However, the process of globalization, as the previous heading shows, creates new victimization. Old and new, victimization calls for better understanding and better responding. During periods of big processes and changes in global creativities, victimology calls for humanity for the weak, in a global perspective that meets the local.
Globalization can become an opportunity for better struggle against victimization, for better sharing of knowledge, and global victimology is part of global
criminology.
Criminology, similar to other fields of study, attempted to provide universal explanations for the behaviors under its scope. More often than not, universal explanations were replaced by new ones that claim the same power of universalism. The era of globalization recognized pluralism in any field, thus it is possible to hold together less universal explanations or even contradicting ones, each will explain its share and together they portray a larger picture. We therefore anticipate that the emerging global criminology will be the house of diverging attitudes, explanations, and perspectives. In the global

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village of criminology, there is room for any solid contribution. This edited collection is a move in this direction.

Contents of This Edited Volume
This book is divided into four sections: I, Terrorism; II, Cybercrimes and
Victimization; III, Marginality and Social Exclusion; and IV, Theoretical and
Practical Models of Criminal Victimization. All the chapters are diverse in nature from contributors across the world and are a blend of theoretical and empirical perspectives.
Chapter 1 explores work at the intersection of international law, international politics, crime, and victimization. India and Pakistan are countries well known for their continuing conflict in the South Asian region. Pakistan encourages terrorism in its home ground and terrorists freely attack India at its borders; the 2008 Mumbai attack proved that they can attack beyond borders. The role of nonstate actors (NSAs) in such terrorist attacks is the prime focus of Chapter 1. The author considers questions of state responsibility and accountability for terrorist acts, using as his frame of reference the horrific attacks in Mumbai in 2008. The objective of this chapter is to explain what the key characteristics of NSAs are; to what extent are terrorist groups in Pakistan nonstate; how accountable is the Pakistani state for the acts of the terrorist groups operating from its territory; and the degree to which international law establishes state accountability toward the acts of
NSAs? This chapter presents a brief account of the Pakistan-based terrorist groups, investigates their linkage with the state organs, and draws insights from the Pakistani case for NSAs’ activities and state accountability in the international system.
In Chapter 2, the author examines maritime piracy from the perspective of the Southern African Development Community, which is responsible for 3000 km of coastline close to the current nexus of piracy, the coast of
Somalia. Following a review of the causes, extent, and modus operandi of maritime piracy, the author lays out a set of detailed recommendations for responding to the growing threat.
Since that fateful day in September 2001, terrorism has been thrust into the limelight of public consciousness like never before. On the international stage, a reinterpretation of preexisting principles such as the “precautionary principle” in novel ways to kick start major “preemptive wars” on transnational terror outfits has come in for heated debate. Such aggressive reform may, however, trigger a dangerous trend if the law of nations were to embrace such a knee-jerk reaction as “customary practice.” In India, a people plagued by gory acts of terror since long before the notorious felling of the twin towers, are yet to come to terms with the threat posed by various NSAs and

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Editors’ Introduction

transnational armed groups. Through the enactment of various domestic instruments, such as the TADA, POTA, and UAPA, there have been attempts at curtailing the effects of terrorism. Yet, the author of Chapter 3 believes that uprooting this global crime requires a concerted effort at the global level. The author proposes a three-pronged criticism of the preemptive wars that were launched under the so-called Bush Doctrine’s interpretation of the precautionary principle.
In Chapter 4, the author provides an overview of the financing of terrorism in Southern Africa, taking as his point of departure the many international instruments on the subject. The chapter is of particular interest due to the extent of the informal economic and financial sector in Africa. The author concludes his chapter by tailoring the international recommendations to the specific circumstances of this subregion.
Chapter 5 is a legal analysis of the use of electronic evidence in South
African law, which reflects the difficulties of applying law in a rapidly changing world. The chapter focuses on critical questions such as: How in particular do we apply the procedural concept of discovery, developed in a time of paper documents, to electronic data? The author’s comments on the South
African approach will have wide resonance.
Chapter 6 shows how one mainstay of criminology, interviews with self-identified offenders and experts, can be used in the study of cybercrime. Very little is known about those who commit computer crimes.
Cybercrime offenders constitute a hidden and hard-to-access population.
This is despite the increase in offending rates that have corresponded with the wider availability of computers to the general public from the 1980s and the introduction of the World Wide Web in 1991. These technological advances have increased the reach of offenders as well as the vulnerability of potential victims. Chapter 6 contributes to the literature relating to online victimization, providing insight through the lens of offenders, police officers, and the judiciary. The result, which is firmly grounded in rational choice and neutralization theory, is an interesting exploration of the motives of offenders.
Cybercrime and victimization in cyberspace is a subject of great concern in India. In Chapter 7, the authors take the perspective of victims of cybercrime, examining awareness among Internet users in India of the potential for cyber victimization. Their study includes a component on the experience of the respondents with actual victimization, on their awareness of their rights, and on reporting behaviour. Particular attention is given to the experiences of female Internet users.
Cyberspace creates a unique environment for hactwers and terrorists to be able to interact, work together, and learn from each other. The risk of recruiting hackers to work with terrorist organizations is growing remarkably fast. The Islamic world has populated cyberspace and opened

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xxi

up websites propagating Islamic rhetoric and ideology. Some of these websites are established to defend Islam and teach Muslim youth hacking techniques. Unfortunately, the growing Muslim presence in cyberspace has been accompanied by contradictory fatwas, a prevailing fatwa that has affected cyberspace negatively and incited the Arabic Muslim hackers
(AMHs) to commit cyber vandalism, and an unpopular fatwa that condemned cyber vandalism against Israeli websites. In Chapter 8, the author through his study locates as many as 154 AMH forums, though many of these are temporary, and they may close down or relocate their operation.
The author’s study of Arabic Muslim hackers and their relationship with
Islamic jihadists is based on extensive research and is very informative. The author also provides an assessment of the impact of fatwas on the activity of these hackers.
Chapter 9 continues the victimological assessment of cybercrime, with a study of sexual harassment over cell phones. In this chapter, the author has tried to answer three questions: (a) Who is using cell phone unethically?
(b) Who are the victims of sexual harassment via cell phones? (c) What are the adverse impacts of cell phone sexual harassment on a victim’s social life?
Through a questionnaire survey in Dhaka City, Bangladesh, this study has tried to explore the various patterns of sexual harassment via cell phones.
The contribution is an example of the value of “thinking globally, acting globally.” Although the phenomenon itself is global, “Eve-teasing” (as it is known in this subregion) definitely has its own context and its own implications in Bangladesh.
The principal objective of Chapter 10 is to report on the problems of implementing a state-funded, county-implemented, short-term intervention program for mentally ill offenders reentering the community from a large jail. This study focused on program implementation for the treatment of
1278 subjects diagnosed as mentally ill, who were randomly assigned to two groups at jail booking. This contribution deals with a major social, criminal policy, and economic problem in the United States: the jailing of mentally ill offenders. In reporting on an intervention study conducted in California, they also enrich the literature by giving a dispassionate analysis of how shortcomings in the study methodology may have influenced the results.
In Chapter 11, the author has made an attempt to analyze the impact of the imprisonment of women. The author emphasizes that women play various roles, such as mothers, partners, and members of families. The author tried to approach this issue from a global feminist perspective.
She emphasizes that women’s and girls’ interactions with prison systems raise fundamental questions of social exclusion, marginalization, and justice. The author feels that there is a need to link together research on women, girls, and criminal justice with critical perspectives on punishment and the expansion of the prison-industrial complex, to develop

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Editors’ Introduction

radical, critical, and global feminist perspectives, which challenge the power of the prison. This feminist analysis of women in prison is an excellent example of how an analysis can work simultaneously on the local, national, and international levels. The author brings together a wealth of research on key issues from both industrialized and industrializing countries. The reader will come away with a better appreciation of the many difficulties faced by mothers, babies, and children in prison—and of the appalling practice of
‘trokosi’ in Ghana, Togo, and Benin.
Beggary in India has been in existence since time immemorial for various reasons. Though India lacks a uniform law in this regard, some of the states have laws criminalizing beggary. Though these laws aim to rehabilitate beggars, such rehabilitation comes with criminalization, disregarding the wishes and wants of such beggars. It is this approach that has come under serious criticism from civil society and the general public. The Indian approach, similar to the West’s approach toward vagrants, is outdated and goes against not just the constitutional and human rights jurisprudence, but is also contrary to the basic principles of criminalization and criminal liability. In Chapter 12, the author critically analyzes the Indian legal approach to begging and concludes that criminalization of beggary is unjustified and unwarranted as it punishes a person for being poor instead of ensuring alternative means of livelihood, thereby indicating a failure of the “welfare” state.
The author considers the present laws to be vague and selectively enforced and further questions the laws on the grounds of morality and of basic criteria for criminalization.
In Chapter 13, the author presents the results of a qualitative study of public statements by Australian parliamentarians in response to the claim that Indian nationals studying in Australia are the victims of racially motivated crime and violence. It examines a sample comprised of press releases, parliamentary Hansard, and media interviews compiled over a 12-month period between June 1, 2009 and May 31, 2010. This chapter goes beyond traditional victimization surveys, to look at the response of decision-makers to claims of victimization. In this case, the focus is on how Australian politicians sidestep the issue of racism when commenting on stories of Indian students being subjected to hate crime in Australia. The author argues that
Australian federal parliamentarians have resisted acknowledging that some of the incidents reported by Indian students in Australia are motivated or aggravated by racism.
Considerably fewer studies have been conducted on the psychological effects of internal forced displacement compared to international forced displacement. The aim of the study presented in Chapter 14 was to examine the association between parent–child relations and gender differences and between the pathogenic and saluthogenic effects of internal forced displacement. This contribution looks at how the forced displacement of Israeli

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settlers from the Gaza Strip affected the adolescents involved psychologically, in the short term and in the long term.
Chapter 15 expands our knowledge of criminal victimization, again taking it in fascinating directions away from classic Western discourse. The author focuses on forced marriages, domestic violence, and allied issues in a few select countries in Africa. This chapter represents a qualitative assessment of the realities of these traditional practices across several African countries. It is a known fact that some African nations still follow some traditional practices in this modern era, which leads to various forms of victimization of women. The author correctly places these within the human rights context, and offers recommendations for addressing the issue.
Chapter 16 aims to explore the multifaceted identity of the female victim, as she courses through the criminal justice process. It is the intention of the author to draw attention to the dilemma that many women face when they seek help for the victimization that they experience. The author offers a fascinating analysis of the applicability of Nils Christie’s concept of “ideal victims” to the victims of rape and human trafficking. Although the background is the law in England and English legal cases, the author’s theoretical approach has wide applicability.
Despite numerous studies, the answer to why women are the primary targets of witch hunts is much debated. In Chapter 17, the author takes a new approach to the study of the relationship between the instigators of witch hunts and the women victims, by looking at contemporary cases of witch hunts among tea plantation workers in Jalpaiguri, West Bengal, India. The author takes a witch-hunting incident in India and places it squarely within a theoretically well-grounded setting. The author notes the importance of moral entrepreneurs and scapegoats and argues for the adoption of a new concept, “dual deviance,” to explain the course of the witch hunt and its aftermath. The chapter also highlights the role of rumor and conspiracy in witchcraft accusations that are used to target the women victims.
Criminology and victimology have traditionally looked at negative phenomenon. In Chapter 18, the author, who is the proponent of the “criminal spin” theory, introduces the new concept, positive criminology. The author suggests understanding criminal conduct as a process that he calls
“criminal spin” and advocates an approach called positive criminology, involving, for example, reintegrative shaming, restorative justice, rehabilitation, recovery, and the 12-step programme. The author feels that while strong negative means are necessary to break a criminal spin, especially during an acute phase, positive criminology has the promise of targeting other phenomenological characteristics of the spin, thus reducing its chronic manifestation.
The closing contribution (Chapter 19) is an Indian study comparing a sample of spouses of alcohol dependents with a matched sample of spouses of

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Editors’ Introduction

non-alcohol dependents, examining the incidence of domestic violence. The findings of the study indicate that spouses of alcohol dependents are vulnerable to victimization and require psychological intervention to prevent serious psychopathology from developing.
We close the book with a conclusion in which we try to analyze the merits of global criminology and global victimology.

Editors

K. Jaishankar, PhD, is a senior assistant professor in the Department of
Criminology and Criminal Justice, Manonmaniam Sundaranar University,
Tirunelveli, India. He was a Commonwealth Fellow (2009–2010) at the Centre for Criminal Justice Studies, School of Law, University of Leeds, UK, and has completed a research project on victims of cybercrimes. He is the founding editor-in-chief of the International Journal of Cyber Criminology (www. cybercrimejournal.com) and editor-in-chief of the International Journal of
Criminal Justice Sciences (www.ijcjs.co.nr). He is the founder president of the South Asian Society of Criminology and Victimology (SASCV) (www. sascv.org) and executive director of the Centre for Cyber Victim Counselling
(CCVC) (www.cybervictims.org). Jai was a discussant in the “Opening discussion: Focusing on victims of crime—Comparing crime patterns and improving practice. Researchers’ advice to policy” of the Stockholm Criminology
Symposium held during June 11–13, 2012, in Stockholm, Sweden, and responded to the questions of Beatrice Ask, the Swedish minister for justice, and Paula Teixeria da Cruz, the Portuguese minister for justice. Jai was a keynote speaker at the 14th World Society of Victimology Symposium held during May 20–24, 2012, in The Hague, the Netherlands. He was the general chair of the First International Conference of the South Asian Society of
Criminology and Victimology (SASCV), held during January 15–17, 2011, at the Hotel Jaipur Greens in Jaipur, Rajasthan, India. Among the books he has written/(co) edited are: Cyber Crime and the Victimization of Women: Laws,
Rights and Regulations (IGI Global, July 2011), Cyber Criminology: Exploring
Internet Crimes and Criminal Behavior (CRC Press, Taylor & Francis Group,
February, 2011), International Perspectives on Crime and Justice (Cambridge
Scholars Publishing, UK, 2009), Cyber Bullying: Profile and Policy Guidelines
(DOCCJ, Manonmaniam Sundaranar University, India, 2009), Crime Victims and Justice: An Introduction to Restorative Principles (Serial Publications,
New Delhi, 2008), and Trends and Issues of Victimology (Cambridge Scholars
Publishing, UK, 2008). His areas of academic competence are victimology, cyber criminology, crime mapping, GIS, communal violence, policing, and crime prevention.
Natti Ronel, PhD, is an associate professor in the Department of
Criminology, Bar-Ilan University, Ramat Gan, Israel. He previously served as the researcher-in-chief of the interdisciplinary Center for Children and xxv xxvi

Editors

Youth Studies in Tel Aviv University, Israel. He is also a licensed clinical criminologist who has a private practice with the criminal population, youth, and adults who exhibit addiction, violence, and/or victimization. Natti leads continuous training courses for criminal justice and victim assistance professionals and he is a recurring faculty member of the annual postgraduate course of Victimology, Victim Assistance, and Criminal Justice in the
Inter University Centre, Dubrovnik, Croatia, where he lectures on therapy for recovering victims. His various writings reflect both his clinical and academic experiences in criminology. He has a special focus on the spiritual aspect of criminology and victimology—its values and impact on individuals and communities: spiritual-based intervention and recovery, moral transformation, and forgiveness and spiritual intelligence. Natti is the proponent of a new criminological theory “the criminal spin,” and the conceptualization of a new perspective in criminology and victimology: “positive criminology” and
“positive victimology,” respectively. Natti is a member of the World Society of Victimology, the Israeli Society of Criminology (board member), and the
Israeli Council for Criminology. He is head of the research group for the development and study of positive criminology at Bar-Ilan University, Israel.
He has written and edited several books, including coediting Trends and
Issues of Victimology (Cambridge Scholars Publishing, UK, 2008). He was the program chair of the First International Conference of South Asian Society of Criminology and Victimology (SASCV) held during January 15–17, 2011, in Jaipur, India, and is a member of the advisory board of SASCV.

Contributors

Vinesh Basdeo Served in the South African Police Service for 16 years, where he worked in various departments, including crime prevention, the detective service, and the VIP Protection Unit. He held the position of assistant director, also known as superintendent or lieutenant colonel. He obtained his master’s in law at the University of South Africa. He is currently a senior lecturer in the School of Law at the University of South Africa, and serves on various college and school committees. He teaches undergraduate students and supervises master’s students. He has attended various international conferences where he delivered papers on various legal and policing issues, and has published extensively in scientific journals. Mr. Basdeo also serves on the University Student Disciplinary Committee. He has recently submitted his doctoral dissertation, which focused on search and seizure. Vinesh has published extensively on criminal procedure, search and seizure, military policing, and a whole range of criminal justice issues. He was recently invited by the South African parliament to present a paper on the location of South
Africa’s anticorruption agency.
Gisela M. Bichler Presently a professor and co-director of the Center for
Criminal Justice Research at the California State University, San Bernardino,
CA, USA. Professor Bichler joined the faculty at CSUSB in September
2000 after completing her PhD at Rutgers—State University of New Jersey.
Professor Bichler is founder and co-director of the Center for Criminal
Justice Research. In addition, as the crime analysis division coordinator she is responsible for the new Crime Analysis Certificate Program. Professor
Bichler has been extensively involved with the Western Society of Criminology in various capacities, including president and coeditor of their online, peer reviewed professional journal, the Western Criminology Review. Professor
Bichler has received a number of awards and honors: the J.D. Lohman Award for outstanding service to the Western Society of Criminology; the Provost’s
Dissertation Award 2000 for the top doctoral dissertation; the Graduate
Excellence Award for teaching and scholarship; the Richard J. Hughes Award for graduating from the masters of arts with the highest standing (Rutgers
University, 1996); and the Rutgers Excellence Fellowship Award (1995–1999).
Her professional specialties are: ecology of crime, applications of geographical information system technology to crime issues, applications of social network analysis techniques to crime issues, environmental criminology and xxvii xxviii

Contributors

crime analysis, situational crime prevention and problem-oriented policing, crime prevention through environmental design (CPTED), methods and statistics for social scientific research, and maritime corporate crime.
Fawzia Cassim Associate professor in the Department of Criminal and
Procedural Law at the University of South Africa. Her qualifications are
BA (law) (University of Durban Westville, now University of Natal); LLB
(University of Natal–Durban); and LLM LLD (University of South Africa).
She is also an admitted attorney and conveyancer of the High Court of South
Africa. Her academic and research interests are in the following fields/disciplines: human rights law, constitutional procedural law, civil procedure, gender law, cyber law/information technology law and Islamic law. She has published a number of articles in academic journals and presented papers at international conferences in the above-mentioned disciplines.
Soma Chaudhuri Assistant professor at Michigan State University, East
Lansing, MI, where she holds a joint position in the Department of Sociology and the School of Criminal Justice. Her research focuses on violence (collective violence and domestic violence), social movements, gender, and witch hunts. Dr. Chaudhuri has published articles in journals such as the American
Journal of Sociology; Mobilization, Violence against Women; and Comparative
Studies of South Asia, Africa and the Middle East. Some of her current projects include a book manuscript on contemporary witchcraft accusations in the tea plantations of Jalpaiguri, India (under contract with Lexington
Books); and the negotiation of strategies to combat domestic violence in
Gujarat, India. Dr. Chaudhuri holds a PhD in sociology from Vanderbilt
University, Nashville, TN, master’s degrees in sociology from Vanderbilt
University (2005) and Jawaharlal Nehru University, New Delhi (2000), and a
BA in sociology from Presidency College, Calcutta (1998).
Helen Codd Reader in law and criminal justice at the Lancashire Law
School, University of Central Lancashire, Preston, United Kingdom. She studied law at the University of Wales, Aberystwyth (1987–1990), and then gained an MPhil in criminology at the University of Cambridge, Institute of Criminology (1991). Helen has extensive experience of teaching criminal justice, criminal law, and related subjects at undergraduate and postgraduate levels and has also taught law in a local prison. She has published widely on issues in relation to women, prisons, children, and families and is the author of In the Shadow of Prison: Families, Imprisonment and Criminal
Justice (Willan Publishing, United Kingdom, 2008) and Controversial Issues in Prisons (with David Scott, McGraw Hill, United Kingdom, 2010). Her current research relates to prisoners’ families, prisoners’ reproductive rights, and feminist perspectives on sentencing. Helen has delivered invited keynote

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addresses at conferences around the world, most recently in the United States and India, and was an invited participant in the UNHRC Day of General
Discussion on Prisoners’ Children in September 2011. She has extensive experience of voluntary work with NGOs and is currently chair of THOMAS, a social exclusion and substance abuse charity based in the North of England.
E. Enanalap Periyar Presently an Indian Council for Social Sciences
Research (ICSSR) Fellow in the Department of Criminology and Criminal
Justice, Manonmaniam Sundaranar University, Tirunelveli, India. He was formerly a lecturer in police science and criminology at APA College of
Arts and Science, Nanguneri, Tirunelveli District, India. He is an executive council member of the South Asian Society of Criminology and
Victimology (SASCV). His thesis focuses on homicide and victim–offender relationships. Debarati Halder Advocate and legal scholar. She is the managing director of the Centre for Cyber Victim Counselling (CCVC) (www.cybervictims. org). She received her LLB from the University of Calcutta and her master’s degree in international and constitutional law from the University of Madras.
She is currently completing her PhD in the National Law School of India
University (NLSIU), Bangalore, India. She has published many articles in peer-reviewed journals and chapters in peer-reviewed books. Her work has appeared in scholarly journals, including the Journal of Law and Religion,
Victims and Offenders; Murdoch University E-Journal of Law; ERCES Online
Quarterly Review; TMC Academic Journal (Singapore); Temida and Indian
Journal of Criminology & Criminalistics; and edited volumes, Crimes of the
Internet, Trends and Issues of Victimology, Cyber Criminology. Debarati’s research interests include constitutional law, international law, victim rights, cybercrimes and laws. She has presented her research works at many international conferences including the recent Stockholm Criminology Symposium held during June 11–13, 2012.
Alice Hutchings Presently a senior research analyst, in the Global,
Economic & Electronic Crime Program of the Australian Institute of
Criminology. Alice has extensive experience working across all tiers of government, as well as the academic and private sectors. Alice has undertaken cybercrime-related research since 2007 when she examined risk factors for phishing victimization. Alice is a PhD candidate based at the Centre of
Excellence in Policing and Security in Griffith University. Her PhD, titled
“Theory and Crime: Does it Compute?”, was commenced in 2008. This research consists of testing existing sociological theories of crime to determine whether they explain computer crimes that compromise data and financial security. She has published widely and has presented at various

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Contributors

international conferences. She holds a bachelor of arts in criminology and criminal justice (hons.) from Griffith University.
K. Jeevitha Clinical psychology doctoral student (PsyD) at Wright State
University School of Professional Psychology, Dayton, OH. She obtained her master’s degree in psychology from Bangalore University, an MPhil in mental health and social psychology from the National Institute of Mental
Health and Neurosciences (NIMHANS), India. She has also worked as a senior research fellow at St. Johns Research Institute and was a faculty member in the Department of Psychology at Christ University, Bangalore. Her clinical and research interests are in the area of child psychopathology and psychotherapy, pediatric psychology, and domestic violence. She has presented in national and international conferences and has been a volunteer for several Head Start programs for children and families. She is a member of various professional organizations, including the American Psychological
Association (APA), the Association for Play Therapy, and Division 53 of APA.
Don A. Josi Serves as professor and program director in the Department of Criminal Justice, South University, based in Savannah, GA. Prior to joining South University, Josi served as a tenured professor of criminal justice at
Armstrong Atlantic State University in Savannah, GA. Earlier, he served as an associate professor, chair and on the faculty at California State University,
California Polytechnic University, and Chapman University. Josi began his career in criminal justice as a police officer and a detective in the Rialto,
CA police department. He later became director of security at a prominent
California hospital and has served as a research consultant and juvenile probation control supervisor. He earned a PhD in criminology, law, and society from the University of California—Irvine, a master’s degree in criminal justice, and a bachelor’s degree in sociology from California State University in
San Bernardino, CA.
Avital Laufer Currently the deputy mayor of Netanya, Israel, and in charge of education. Avital is also a senior lecturer at Netanya Academic College.
Her studies deal with the well-being of youth in times of terror and political adversities. Her postdoctoral study won the Inbar Fund Award for outstanding research in the field of terrorism (2007). Her dissertation, which examined violence among Israeli youth, won the President and Dean’s Award for
Excellence (2000). She has published numerous articles in scientific journals and books.
Alaeldin Mansour Maghaireh Lecturer in law at the Centre for
Transnational Crime Prevention (CTCP). He is an expert in Islamic criminal law and cybercrime with considerable experience in the First Instance Court

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in Jordan. His doctoral research, completed in 2009 at Wollongong University, was on “Cybercrime Investigation: A Comparative Analysis of Search for and Seizure of Digital Evidence.” He holds a bachelor of laws from Beirut
Arab University (1996) and a master of cyber law from Wisdom University,
Lebanon (2000). He also holds a graduate certificate in transnational crime prevention from Wollongong University. His primary research interests are: cyber criminology, cyber terrorism, digital evidence, and shariah law. He has published extensively on cybercrime, Shariah law, and related legal issues.
Gail Mason Associate professor and co-director of the Sydney Institute of
Criminology. Her research centers on crime, social justice, and exclusion, particularly: racist and homophobic violence; hate crime law and punishment; and the legal construction of hatred. She is coordinator of the Australian
Hate Crime Network and chief investigator on the ARC-funded Hate Crime
Law and Justice Project, which is undertaking an international comparison of hate crime laws. She is also involved in research exploring resilience and gendered violence among former-refugee communities in Australia. She is journal director of Current Issues in Criminal Justice, associate editor of the
Australian and New Zealand Journal of Criminology, and series editor for the Sydney Institute of Criminology Monograph Series. Gail is currently the NSW representative on the Australian and New Zealand Society of
Criminology Management Committee and sits on the Corrective Services
NSW Ethics Committee. She is the author of The Spectacle of Violence:
Homophobia, Gender and Knowledge (Routledge, 2002) and has published in numerous international scholarly journals and edited books. In 2008, Gail was awarded the Allen Bartholomew Award for the best article published in the Australian and New Zealand Journal of Criminology. In 2009, she delivered the distinguished JV Barry Memorial Lecture in Criminology at the
University of Melbourne.
Ashutosh Misra Research fellow at the Australian Research Council
Centre of Excellence in Policing and Security at Griffith University. He is a postgraduate gold medalist in history and holds a PhD in international studies from the Jawaharlal Nehru University, New Delhi. He possesses over 18 years of research and professional experience and has published three books Pakistan’s Stability Paradox (London: Routledge, 2012); India–
Pakistan: Coming to Terms (New York: Palgrave Macmillan, 2010) and
Pakistan: Engagement of the Extremes (New Delhi: IDSA and Shipra, 2008).
India–Pakistan: Coming to Terms was launched by the Honorable Indian
Vice President Hamid Ansari in New Delhi in September 2010. He has also extensively published in books, international journals, newspapers, and institutional blogs. He has worked for the United Nations in Jordan and prior to migrating to Australia in 2007, he was a research fellow (2002–2007) at

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Contributors

the Institute for Defence Studies and Analyses (IDSA), a premier security think-tank of the Indian Ministry of Defence in New Delhi. Since 2007 at the
Griffith University he has initiated and invigorated India/South Asia focused research and facilitated institutional and academic exchanges between the
Queensland government and Australian universities with Indian counterparts. Periodically, he also provides policy consultancy to the Department of
Foreign Affairs and Trade on India and South Asia and is a visiting faculty with the Department of Defence and National Security College. Dr. Misra regularly features on the Australian television and radio networks commenting on Indian/South Asian affairs.
Moses Montesh Matriculated in Mamelodi-Pretoria in 1990. In 1993, he joined the South African Police. After completing the Basic Police Training, he remained at the Hammanskraal College where he became a physical training instructor. In 1994, he received a scholarship to study for a BA (Pol) at the SAPS Academy in Graaff-Reinet, which he completed in 1996. From
1997 to 1999, Professor Montesh managed to complete a Diploma in Public
Management, and an Honours in Police Science. In 2000, he then enrolled for a Masters in Public Administration at the University of Pretoria, which he completed in a record time (one year and six months). In 2007, Prof
Montesh completed DLIT et PHIL in Police Science. Professor Montesh’s thesis titled “A critical analysis of crime investigative institutions within the South African criminal justice system: A comparative study” provoked debates on whether the SCORPIONS (the Directorate of Special Operations) should be closed or not. In 2005, his draft thesis formed part of an individual submission at the Khampepe Commission of Inquiry, which determined the future of the Scorpions. From October 2001 until January 2004, Professor
Montesh was a POPCRU full-time shop steward. After serving 11 years in the South African Police Service, Professor Montesh joined the University of South Africa in February 2004 and, currently, he is an associate professor. Professor Montesh has published papers on public administration as well as criminal justice. He has presented papers locally and abroad (France,
Hong Kong, Canada, Malta, Australia, Morocco, Singapore, and India). He has been involved in the training of the Government of Southern Sudan
Civil Service. He is currently responsible for undergraduate and postgraduate students in policing.
Colleen Moore Principal lecturer in criminology and deputy head of the
Department of Humanities and Social Sciences at Anglia Ruskin University,
Cambridge. Colleen’s work is concerned with the concept of justice and how it is understood in the criminal justice arena compared to society as a whole. Her main research interests are in understanding everyday “violent” behavior and its intended and unintended impact—upon victims and the

Contributors

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community. Colleen is particularly interested in how justice is perceived, sought, and achieved through the criminal justice process. Colleen’s past research has involved evaluating the effectiveness of community service
(before it was called community payback), young people and their treatment in the youth justice system, parole and the discretionary lifer process, the age of criminal responsibility in Europe, and a comparative examination of legislation in the United Kingdom and the Ukraine relating to trafficking for sexual exploitation. Currently, her work focuses on the treatment of “undesirable” female victims in the criminal justice system and alternatives to justice for victims of domestic (sexual) violence and sexual exploitation. She participated in an international collaboration examining youth justice around the world, through the European Society of Criminology.
More recently, she initiated and cofacilitated a project in a young offender’s institution that brought undergraduates and young offenders together to edit and produce short films.
A. Nagarathna Presently an assistant professor of law at National Law
School of India University, Bangalore has completed her PhD in medical negligence law, LLM (2001) (commercial law), and BAL, LLB (1999). She secured first rank in both the BAL exam (Bangalore University, 1997) as well as the LLB exam (Bangalore University, 1999) and received five gold medals in LLB (Bangalore University, 1999). She taught for over 5 years from 2001 to 2006 at KLE Society’s Law College, Bangalore and she joined
NLSIU, Bangalore in November 2006 as assistant professor of law. She has published several articles and contributed several chapters to various international and national journals and books. Her research work titled Patient’s
Rights under Consumer Law was published by Karnataka Institute of Law and Parliamentary Affairs in 2009. Her two books, Failure of Justice—Social
Perspective and Indian Law Relating to Terrorism are under publication by
Karnataka Institute of Law and Parliamentary Affairs. She has presented various research papers at international and national seminars, conferences, and workshops and has attended national seminars as resource person.
Her areas of specialization include criminal law, cyber laws, and commercial law. Her areas of interest include jurisprudence, intellectual property rights, medical law and ethics, legal educational and professional ethics, and women and law.
Ummey Qulsum Nipun Independent researcher in the field of criminology and victimology, holding a master’s in development studies (MDS),
North South University, Bangladesh and a bachelor degree in urban and regional planning, BUET, Bangladesh. Her main research interests relate to the issues of social security, development of women and adolescents, child development, etc. She is the author of several publications on adolescents,

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Contributors

drug trafficking by youth, sexual harassment, child rights and policy formulation, published by UNICEF, ARNEC, and SASCV. Nipun has been working as a “Bangladesh Regional Coordinator” of the South Asian Society of Criminology and Victimology (www.sascv.org). She was a co-chair of a session in the International Conference on Exploring the Linkages between
Drug Usage and Criminal Victimization, March 8–10, 2012, organized by the
Department of Criminology and Criminal Justice (DOCCJ), Manonmaniam
Sundaranar University (MSU), Tamil Nadu, in collaboration with the
National Institute of Social Defence (NISD), Ministry of Social Justice &
Empowerment, Government of India, New Delhi. She has been working with
Save the Children in Bangladesh since 2007.
Dale K. Sechrest Emeritus professor in criminal justice at the California
State University, San Bernardino, CA. Dale Sechrest has practiced, taught, and published in the field of corrections for over 40 years. His work has focused on the evaluation of corrections programs, including juvenile diversion, correctional privatization, substance abuse programs, treatment of mentally ill offenders, victim-offender reconciliation programs, and correctional standards. His publications include articles on correctional standards, privatization in corrections, drug programs, diversion, restorative justice, and community corrections. He is author of The Role of the Helping
Professions in Treating the Victims and Perpetrators of Violent Crime (2002);
The Changing Career of the Correctional Oἀ cer (1998); Three Strikes and
You’re Out: Vengeance as Public Policy (1996); and Jail Management and
Liability Issues (1989). Professor Sechrest teaches undergraduate and graduate corrections courses, research methods, and statistics. His professional specialties are: community corrections: juvenile prevention/intervention, drug treatment programs, mentally ill offenders in corrections, privatization of correctional services, correctional standards and program audit procedures, restorative justice, and white-collar crime (telemarketing fraud).
Mally Shechory-Bitton Senior lecturer in the Department of Criminology in Ari’el University Centre, and a parttime lecturer in Bar-Ilan University,
Israel. Her postdoctoral study focused on restorative justice (conducted at the University of Tübingen in Germany). She served 5 years as coordinator, Division of Criminology at the Multidisciplinary Department of Social
Sciences in Ari’el University Centre and was the chair of the Israeli Society of Criminology. She also served several years as a senior police officer in the
Israeli police force. Her academic work includes both practical and theoretical experience in the fields of victimology, violence and aggression. She has published extensively in scientific journals. She was a member of the
Programme Committee of the First International Conference of SASCV held during January 15–17, 2011 at Jaipur, India.

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David Shichor Emeritus professor in the Criminal Justice Department of
California State University, San Bernardino, CA, where he has taught since
1975. He has written, coauthored, and coedited several books and he has published numerous articles and book chapters on various topics, including juvenile delinquency, victimization, white-collar crime, corrections, and privatization in criminal justice. He has published four books in the areas of punishment policies, victimization, juvenile delinquency, and private prisons. Professor Schichor completed a typology of juvenile institutions and a study of prison discipline in Israel, both of which were published in that country. He is currently working on several projects on privatization, restorative justice, fraud victimization, and the mental health of jail inmates.
Professor Shichor earned his PhD at the University of Southern California
(Sociology, 1970), received his MA at California State College, Los Angeles
(Sociology, 1966), and his BA at Hebrew University in Jerusalem in 1962. He has held numerous research and consulting positions in the United States and Israel.
Harjass Singh A BA/BSc (Hons.) LLB student at the National University of Juridical Sciences, Kolkata, India. Having presented his research papers on contemporary legal issues at various reputed international conferences, including a Conference on Protecting People in Conflicts and Crisis Situations conducted by the Refugee Studies Centre, Oxford University, Harjass has recently been invited to present his research on sports and jurisprudence at the Third Annual Sport and Society Conference at Cambridge University.
His research work has also been published in numerous reputed journals and books. Discussions with peers and world leaders at the Global Young Leaders
Conference in the United States in 2008 were vital in facilitating Harjass’s leaning toward research on international legal developments. Although a majority of his writing is devoted to the influence of international law in scenarios pertaining to war, genocide, and crimes against humanity, he retains a keen interest in a number of legal fields. An accomplished debater and public speaker, Harjass’s interests range from sports to the UN, international politics, constitutional law, international law, jurisprudence, and environmental and agricultural laws.
R. Sivakumar Bureau of Police Research and Development (BPR&D) research fellow in the Department of Criminology and Criminal Justice,
Manonmaniam Sundaranar University, Tirunelveli, India. He is the treasurer of the South Asian Society of Criminology and Victimology (SASCV).
His thesis focuses on cyberbullying among college students in India.
L. N. Suman Additional professor at the National Institute of Mental
Health and Neuro Sciences (NIMHANS), Bangalore, India. She obtained

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a master’s degree in psychology from Bangalore University, an MPhil in medical and social psychology, and a PhD in clinical psychology, both from
NIMHANS. She has 25 years experience as a consultant clinical psychologist. At NIMHANS, she is a consultant for an Adult Psychiatry Unit, the
Center for Addiction Medicine, and the Center for Psychological Care. She has published papers in national and international peer-reviewed journals and chapters in books and manuals. She is a member of the editorial board of the Indian Journal of Clinical Psychology and the International Journal of
Biosciences and Technology. Her research interests are in the areas of psychosocial issues related to substance use, the mental health of women, positive psychology, and forensic psychology. She has recently initiated an ICSSRfunded research project on cognitive and social factors related to smoking among adolescents.
Victoria M. Time University professor and associate professor of criminal justice in the Department of Sociology and Criminal Justice, Old Dominion
University, Norfolk, VI. Her education comprises degrees in law and criminology, and thus she uses this background to teach law, justice, and criminology courses to both undergraduate and graduate students. Her research revolves around comparative and international law, criminal law, culture and rights, and criminological theory. She has authored a book, and published numerous articles in journals such as Journal of Criminal Justice;
International Journal of Comparative and Applied Criminal Justice; Women and Criminal Justice; and Social Justice, among others, and she has also published several book chapters. Additionally, she has traveled extensively within the United States and abroad to present papers at conferences and symposiums on a variety of social and justice issues.

Scientific Committee of Reviewers

Michael Bacchman

Department of Criminal Justice
Texas Christian University
Fort Worth, Texas, USA

Orly Benjamin

Department of Sociology and
Anthropology
Bar-Ilan University
Ramat Gan, Israel

Moshe Bensimon

Department of Criminology
Bar-Ilan University
Ramat Gan, Israel

Adam Bossler

Department of Criminal Justice and Criminology
Georgia Southern University
Statesboro, Georgia, USA

Mark David Chong

Glenn Dawes

Department of Anthropology, Archaeology,
Sociology, and Criminology
School of Arts and Social Sciences
James Cook University
Townsville, Australia

Ety Elisha

Yezreel Valley College and Ashkelon
Academic College
Ashkelon, Israel

Keren Gueta

Department of Criminology
Bar-Ilan University
Ramat Gan, Israel

Thomas Holt

Department of Criminal Justice
Michigan State University
East Lansing, Michigan, USA

Janice Joseph

School of Arts and Social Sciences
James Cook University
Townsville, Australia

Criminal Justice Program
School of Social and Behavioral Sciences
The Richard Stockton College of New Jersey
Galloway, New Jersey, USA

Keren Cohen-Louck

Simha Landau

Department of Criminology
Ariel University Center of Samaria
Ariel, Israel

Sarah Ben David

Department of Criminology
Ariel University Center of Samaria
Ariel, Israel

Institute of Criminology
The Hebrew University of Jerusalem
Jerusalem, Israel

Stephen Z. Levine

Department of Community Mental Health
University of Haifa
Haifa, Israel

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Scientific Committee of Reviewers

Inna Levy

Kushal Vibhute

Department of Criminology
Ariel University Center of Samaria
Ariel, Israel

Tina Patel

School of English, Sociology, Politics and
Contemporary History
University of Salford
Manchester, United Kingdom

Michael Pittaro

Crimen et Justitia Consulting
Nazareth, Pennsylvania, USA

Muzammil Quraishi

School of English, Sociology, Politics and
Contemporary History
University of Salford
Manchester, United Kingdom

Orly Turgeman-Goldschmidt
Interdisciplinary Department of
Social Sciences
Bar-Ilan University
Ramat Gan, Israel

University of Brunei Darussalam
Negara, Brunei Darussalam

Sophie D. Walsh

Department of Criminology
Bar-Ilan University
Ramat Gan, Israel

Kam C. Wong

Department of Criminal Justice
Xavier University
Cincinnati, Ohio, USA

Yuning Wu

Department of Criminal Justice
Wayne State University
Detroit, Michigan, USA

Uri Yanay

School of Social Work
The Hebrew University of Jerusalem
Jerusalem, Israel

Stanley Yeldell

Law and Justice Studies
Rowan University
Glassboro, New Jersey, USA

Terrorism

I

How Nonstate Are
Terrorist Groups in
Pakistan? Analysis of
State Responsibilities and Accountability

1

ASHUTOSH MISRA

Contents
Introduction 4
Current Situation
9
NSAs/NSAGs: State Linkages and Jihadist Policy
11
Jihad as a State Policy
12
Jihadist Generals
13
General Muhammad Aziz Khan
13
Lieutenant General Mehmud Ahmed
14
Lieutenant General Hamid Gul
14
Cases of Suspect State Organ Involvement
15
JKLF–ISI Linkage
15
Army–ISI–Taliban Linkage
15
Army–Taliban Joint Operation: The Kunduz Case
16
Ahmed al-Khadir Episode: ISI’s Role
16
Omar Saeed Sheikh and the Daniel Pearl Murder Case
17
2008 Mumbai Attacks and ISI Involvement
18
International Law and Accountability of the Pakistani State
19
International Law Commission
20
Rulings of ICJ
21
Genocide Case
21
DRC v. Uganda Case
22
Nicaragua v. United States of America Case
24
Conclusion 29
Acknowledgment 32
References 32

3

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Introduction
In the international system, the role of nonstate actors (NSAs) has gained prominence in recent decades, not only in influencing decision making in multilateral institutions on global issues, but also in shaping regional politics, the foreign policies of states, and international relations, in general. While many NSAs, especially in the fields of environment, international trade, and human rights, have largely operated within the boundaries of civil liberties and freedom accorded under international law, a large number of nonstate armed groups (NSAGs) or terrorist groups have used violence to achieve their ideological and political objectives, sometimes with alleged state support, leading to military conflicts between states. As a result, the activities of
NSAGs have caused serious controversies and confrontations between states, confrontations that on many occasions have been referred to international organizations such as the International Court of Justice (ICJ) for dispute settlement. As more and more states (host) employ NSAGs to achieve their foreign policy objectives with little accountability for the NSAGs acts, there has been an increase in preemptive military responses by states (victim/injured) on the grounds of self-defense against the host state. This has necessitated the ICJ looking into several cases of this nature to determine state (host) responsibility and accountability and the rights of the injured states under international law.
The activities of NSAGs based in Pakistan have been the source of diplomatic, military, and political confrontation with India since the 1980s and now with the United States. Since its creation in 1947, Pakistan has played a critical role in regional and global politics due to its strategic location conjoining South Asia, Central Asia, and the Middle East. This geographical centrality made Pakistan a frontline ally of the United States during the cold war, an alliance that deepened militarily, politically, and economically during the Afghan jihad (1979–1989) against the Soviet Union in Afghanistan.
During this period, the U.S. State Department and the Central Intelligence
Agency (CIA) worked closely with the Pakistani state organs, primarily the Inter-Services Intelligence (ISI) and the military, providing money and weapons to General Zia-ul Haq for the creation of hundreds of madrassas to mentor and train mujahideen to fight in Afghanistan (Haqqani, 2005). The
ISI became the frontline agency for raising, training, and weaponizing the mujahideen for the Afghan jihad. Bloated by CIA and Saudi Arabian money, it gradually created a “parallel structure wielding enormous power over all aspects of the government” (Hussain, 2007, p. 17).
Under General Zia’s reign, the officer corps was seen to be more
“Islamic” than it had been 30 or 40 years ago, and the ISI and army developed close linkages with the influential Islamist party the Jamaat-e-Islami
(JI), with other groups, and with many retired ISI officers still working

How Nonstate Are Terrorist Groups in Pakistan?

5

with their former “clients” (Cohen, 2005, p. 112). The jihadi infrastructure that resulted from this United States–Pakistan alliance gradually assumed an autonomous and formidable character, which the Pakistani government and the military has struggled to dismantle even after the loss of over 30,000 lives under the rubric of the ongoing war on terror. The noted
Pakistani analyst Hassan Abbas says,
By the time General Musharraf, a moderate and progressive Muslim, came to the scene, the very scale of religious extremism had reached its climax. When he tried half-heartedly to halt this trend before the tragedy on 9/11, the army found that it was faced with a potential adversary that it was not willing or able to bring to heel. Many of these groups had developed independent channels of financing, giving them increased manoeuverability. This was the beginning of a shift in the power equation away from the army and toward the Jihadist groups, the latter being supported by the Mullah parties acting as their political wings. (Abbas, 2005, p. 13)

Following the Soviet withdrawal in 1989 and the decline in U.S. interest in the region, United States–Pakistan relations turned cold, until the
September 11 attacks on the World Trade Center, which led to the U.S. invasion of Afghanistan to overthrow the Taliban regime, which was allegedly harboring Osama bin Laden, for which Pakistan’s support again became crucial. But now, certain sections of the military and the ISI felt aggrieved at U.S. indifference during the 1990s toward Pakistan and at the U.S. disowning the mujahideen as solely Pakistan’s responsibility. The Afghan jihad had created strong ideological and operational linkages between the jihadist groups and the Pakistani state organs, convincing the latter of its indispensability to achieving foreign policy objectives. The Pakistani military and the
ISI now seemed opposed to purging these groups, which they deemed their close allies. The eminent Pakistani scholar Muhammad Amir Rana says,
As the modern Jihadi culture was created, nurtured and groomed in Pakistan, its effect on the many senior people involved in that process, coupled with the massive public support which was state sponsored, should not be underestimated. The psychological trauma involved in changing sides cannot easily be washed off … The Jihadis have many supporters in the Pakistan’s army and secret services. It is extremely unlikely that none of them would be ‘helping out’ their former friends and allies. (Rana, 2005, p. 47)

According to Fazl-ur-Rehman, leader of the JUI-F, those targeted in the tribal areas were trained, financed, and armed by the Pakistani government against the Soviets.
In the war on terror, as the Taliban casualties increased in the U.S. and
Pakistani offensives, anti-Americanism intensified in Pakistan, creating new

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centers of jihadi resistance and groups in the Federally administered Tribal
Areas (FATA) and Khyber Pakhtunkhwa (KP), formerly North West Frontier
Province (NWFP), including the Haqqani network in North Waziristan and
Quetta Shura in Balochistan. Over 60 local Taliban groups became operational, of which 40 were initially part of the Tehreek-e-Taliban (TTP), the most potent Pakistani Taliban group, now headed by Hakimullah Mehdud, following the death of Baitullah Mehsud in a drone strike in 2009. The
Pakistani jihadi landscape is now much more complex and formidable due to the alleged state patronage and operational linkages between the Afghan and
Pakistani Taliban groups, having multiple agendas and links with al-Qaeda
(Rana, 2012).
As more attacks occur against the U.S. and NATO troops, it is reported that the ISI has been encouraging the Pakistan-based Haqqani network to attack U.S. targets, including the U.S. embassy on September 13, 2011, in
Kabul (Reuters, 2011). Senior U.S. officials, including Joint Chief of Staff
Admiral Mike Mullen, General John Allen, commander of the NATO-led
International Security Assistance Force (ISAF), and leading analyst Vali
Nasr have been critical of Pakistan’s failure to curb the Haqqanis and have demanded more action against the group (Reuters, 2011). In the meantime, dissatisfied with the Pakistani response, the United States deployed unmanned aerial vehicles (UAVs)—drones—to target militant hideouts inside Pakistan. In connection with these strikes, Pakistani troops and hundreds of civilians have been killed, causing large-scale public demonstrations and a political storm in the Parliament. On March 20, 2012, the all-party parliamentary committee in Pakistan recommended that “The U.S. must review its footprints in Pakistan” and called for an end to the drone attacks, demanding “no hot pursuit or boots” on Pakistani territory and declaring this a violation of its sovereignty.
In a NATO air strike in November 2011, 24 Pakistani soldiers were killed in the Mohmand Agency (a district), a strike that led to the closure of the U.S. drone base at the Shamsi air base in Quetta following the public and political outrage in Pakistan (The Dawn, 2012b). According to the Pakistan Institute of Peace Studies, 323 drone strikes were carried out from 2004 to June 2012, killing 2652 militants (including Ilyas Kashmiri, Baitullah Mehsud, Nek
Muhammad, Romanullhah, Badar Mansoor, and Abu Yahya Al-Libi) and
227 civilians (Pakistan Institute for Peace Studies, 2012). The corresponding figures for the period as per a New America Foundation study are 302 strikes and 1558–2372 militants including a small percentage of nonmilitants (New
America Foundation, 2012). In May 2012, the Pakistani Foreign Office again reiterated that “drones violate international law and its territorial integrity.”
UN Secretary-General Ban Ki-moon urged states to be more “transparent” about the circumstances in which drones are used and to take necessary precautions under international law to minimize civilian casualties. The UN

How Nonstate Are Terrorist Groups in Pakistan?

7

High Commissioner for Human Rights Navi Pillay commented, “Drone attacks do raise questions about compliance with international law … and indiscriminate killings and injuries of civilians in any circumstances are human rights violations” (Mussadaq, 2012). On the other hand, U.S. Secretary of State Hilary Clinton, who officially apologized in July 2012 for the killing of 24 Pakistani soldiers in connection with one drone strike, defended the
U.S. policy saying,
We will always maintain our right to use force against groups such as al-Qaeda that have killed us and still threaten us with imminent attack … In doing so, we will comply with the applicable law, including the laws of war, and go to extraordinary lengths to ensure precision and avoid the loss of innocent life.
(The Dawn, 2012a; Mussadaq, 2012)

According to one study conducted on local perceptions toward drone attacks, 58.8% of the respondents in FATA considered them as “never justified,” 24.5% as “sometimes justified,” and 4.4% as always “justified.” In the North Waziristan (which has witnessed the highest number of strikes),
99.3% regarded them as “never justified.” However, in the Kurram Agency, where the Haqqani group is currently based, 63.2% regarded drone attacks as
“sometimes justified” (Shinwari, 2010 in Nawaz, 2011).
In May 2011, the killing of Osama bin Laden by the U.S. Navy SEALs in Abbottabad, close to the Pakistani Military Academy, was an indication of the collapse of U.S.–Pakistan understanding over the conduct of the war on terror. Apparently, the United States is not very hopeful of the Pakistani military’s ability to purge the Haqqanis and other Taliban groups; therefore, while maintaining the pressure on Pakistan to do more, the United States has simultaneously resorted to unilateral strikes inside Pakistan to eliminate militants. Currently, U.S.–Pakistan relations remain deadlocked, with both sides driven by their respective national and strategic interests, posing the conflict between U.S. claims of acting in “self-defense” against the NSAGs and Pakistan labeling this as a violation of its territorial sovereignty.
A similar contestation has been prevailing on Pakistan’s eastern front, with India alleging (as discussed in the latter sections) that it has been the victim of cross-border terrorism perpetrated by Pakistan-based jihadist groups in Kashmir and other parts of India. There are countless authoritative works available on Indo-Pakistan relations produced by eminent scholars who have also analyzed the correlation between cross-border terrorism and the Kashmir dispute in depth. One such U.S.-based South Asia scholar,
Stephen Cohen, argues that Pakistan, following the success against the
Soviets, began contemplating an Afghan jihad-type stratagem in Jammu and
Kashmir. Cohen describes how, after having installed Amanullah Khan as the Jammu and Kashmir Liberation Front (JKLF, Pakistan) chief, the ISI created JKLF’s India front in 1988 under Ishaq Majid Wani, Yasin Malik, Hamid

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Global Criminology

Sheikh, and Javed Mir. The aim was, first, to provide a local support base for the militants and Afghan war veterans in Jammu and Kashmir against the Indian forces in Jammu and Kashmir and second, to keep these groups away from causing domestic troubles in Pakistan. The ISI began training the Kashmiri dissidents who opposed New Delhi’s policies in Jammu and
Kashmir (Cohen, 2003). Indian analysts also claim that following the political unrest and reported electoral bungling in Kashmir in the 1987 elections,
Pakistan increased its involvement by providing training to a large number of disgruntled youths from India-administered Kashmir to fight against the Indian military and pressure India to negotiate a final settlement of the
Kashmir dispute (Santhanam et al., 2003). Gradually, terrorist groups, allegedly with the support of the ISI, waged a proxy war outside Kashmir and have undertaken bomb attacks in major cities. The attack on the Indian parliament in 2001 and the Mumbai attacks in 2008 remain the high points of cross-border terrorism, which New Delhi claims pushed the two neighbors to the brink of their fifth war. Reportedly, Indian authorities have provided
Pakistan with evidence of the involvement of the ISI in supporting terrorist groups, such as Lashkar-e-Toiba (LeT), Hizbul Mujahideen, and Jaishe-Muhammad, in masterminding several attacks. Pakistan rejected these claims as baseless and unsubstantiated, only to concede later that the attackers were indeed Pakistani citizens (Siddiqi & Baruah, 2009; Agencies, 2010).
In June 2012, in cooperation with the United States and Saudi Arabia, the
Indian authorities managed to extradite Abu Jundal from Saudi Arabia, in connection with investigations into the Mumbai 2008 attacks. Indian officials claim that Abu Jundal, an Indian citizen, was trained by the Pakistan-based
LeT and directed the operation from a “control room” in Karachi along with an ex-ISI man, Sajjid Mir (Baweja, 2012). As Pakistani authorities continue to deny the involvement of state organs in terrorist activities in India, saying that they are as much victims of terrorism as India, public outcry in India following the terrorist attacks has put pressure on the Indian government to respond strongly. After the attack on the Parliament in 2001, India amassed troops on the border (Operation Parakram) with the intention of launching an offensive against these groups, and ever since, India has reportedly been contemplating surgical strikes to eliminate terrorist bases inside Pakistan. In the wake of Operation Geronimo, which killed bin Laden, Indian military officials have been reportedly claiming that India has similar surgical strike capabilities (Gupta, 2011).
In light of the United States–Pakistan and Indo-Pakistan political and military contestations, the recent advances and transformations in modern warfare and military strategy for dealing with NSAs raise new questions. This chapter seeks to answer some of these questions by examining how “nonstate” the terrorist groups based in Pakistan are and how accountable the state is toward the wrongful activities of NSAs under international law. The

How Nonstate Are Terrorist Groups in Pakistan?

9

first section provides a brief historical account of Pakistan’s alleged support of jihad as a state policy that facilitated the mushrooming of terrorist groups and the creation of the jihadist infrastructure. The second section outlines the current situation, including recent developments in the U.S. and Pakistani offensives, terrorism fatalities in Pakistan and India, and the Islamist discourse on jihad in Pakistan. The third section explores the NSA/NSAGs–state linkages, Pakistan’s jihadist policies, major jihadist groups, the profiles of some prominent jihadist generals, and instances of operations with alleged state involvement. The fourth section, based on the discussion in the preceding sections, looks into the provisions of international law to determine to what extent the Pakistani state can be held accountable for the unlawful acts of NSAs. It is necessitated by the ongoing controversy over how lawful are the
U.S. drone attacks and commando raids inside Pakistan and whether they violate Pakistan’s territorial sovereignty as guaranteed under the UN Charter.
This section also explores the rights and limitations of “self-defense” against
NSAs, as prescribed under international law for the victim/injured states.

Current Situation
South Asia poses myriad challenges to regional and international security, including terrorism allegedly perpetuated by NSAGs based in Pakistan. The killing of Osama bin Laden in Abbottabad, 50 km from Islamabad, has put the spotlight again on the ISI and the Pakistani military, which has its academy in Kakul, close to the lair where bin Laden had allegedly been living for some years. The Pakistani government’s failure to offer a convincing explanation of how it was unaware of bin Laden’s existence so close to the military academy has added to the growing mistrust with the United States, compelling the latter to continue with unilateral military strikes against militant hideouts in the tribal areas.
Notwithstanding the U.S. mistrust of Pakistan, the latter today is engaged in a fierce military conflict with the Taliban and other terrorist groups within its own borders, although it has failed to curb their operations completely.
Since 2004, over 34,000 people have been killed in Pakistan, including civilians, policemen, and security personnel (Paracha, 2011). In 2011, 7,017 people were killed as opposed to 10,003 people in 2010 and 12,623 in 2009 (Pakistan
Institute of Peace Studies, 2011). On June 24, 2012, Pakistani military sources announced that 11 soldiers had gone missing “out of whom seven soldiers have been reportedly killed and then beheaded,” and the responsibility was attributed to the Taliban group led by Maulvi Fazlullah, a.k.a. Mullah Radio based in Malakand in the Swat valley (Agencies, 2012). This clearly indicates that Pakistan has itself suffered immensely in its offensive against the Taliban and al-Qaeda, with increasing suicide and bomb attacks in the tribal areas

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as well as in other parts of the country. The current spate of relentless suicide attacks and bombings against military and civilian targets has intensified since the Red Mosque crackdown launched by General Pervez Musharraf in July 2007. The Islamist parties and jihadist leaders have long blamed both
Pakistan and the United States for rising extremism. In 2004, Maulana Fazlur
Rehman, leader of the Jamaat-e-Ulema Islam, bluntly criticized the military leadership for abandoning the jihadist groups, saying, “The trained ones were later called terrorists while the ones who trained them were not bothered”
(Raza, 2004).
Emanating from the Afghan jihad, the ideological and operational linkages between the jihadist groups and state organs apparently also encouraged the Pakistani military establishment to nurse, promote, and sponsor
Islamic militancy on the eastern front, which Pakistan itself now struggles to control (Mir, 2005). Many terrorist training camps belonging to al Badr,
Hizbul Mujahideen, and Harkatul Mujahideen were reopened and resumed operations in Manshera to engage in jihad in Kashmir, with only a brief suspension following the September 11 attacks (Ali, 2005). Between 1994 and
2010, the country lost over 55,000 people to terrorist violence, but the numbers have declined from a high of 5,839 in 2001 to 1,074 in 2011 (Institute for Conflict Management, 2011). According to the Indian authorities, the
2008 Mumbai attacks in which 166 people were killed were undertaken by
LeT operatives trained and funded by the ISI, as revealed in the testimonies of Abu Jundal in June 2012 and, earlier, David Coleman Headley, the
Pakistani-born American who is currently in U.S. custody (Siddiqi & Baruah,
2009; Baweja, 2012). Headley has testified in a Chicago court that the ISI masterminded the entire Mumbai operation (Hindustan Times, 2011), which has raised concerns over the role of Pakistan-based groups. Eminent scholars, among them Pakistani, have noted that the jihadist infrastructure in the country has expanded enormously with deeper linkages with global terrorist networks (Rana, 2005; Haqqani, 2005; Abbas, 2005; Stern, 2000).
In particular, the UN, U.S., and Indian authorities have now focused their attention on the LeT, which renamed itself Jamaat-ud Dawa following its proscription by the United States and Pakistan in 2001 and 2002, respectively, and Falah-i-Insaaniyat Foundation following the Mumbai attacks in
2008. Its chief, Hafiz Saeed, has been listed by the UN 1267/1989 al-Qaeda
Sanctions Committee as an individual associated with the al-Qaeda. In
April 2012, the U.S. State Department authorized a reward of $10 million for information leading to his arrest or conviction and $2 million for information leading to the location of LeT’s deputy, Hafiz Abdul Rahman Makki
(U.S. Department of State, 2012). These groups have also received political patronage from the Islamist parties and former ISI officials in a bid to legitimize their existence. In October 2011, General (retd.) Hamid Gul, a former
ISI chief, is reported to have created a new party called the Difa-e-Pakistan

How Nonstate Are Terrorist Groups in Pakistan?

11

Council (DPC), uniting right wing individuals, leaders, and parties, including Hafiz Saeed. According to Hasan Askari Rizvi, “DPC’s formation is a tactic by the military authorities to pressure the civilian government to take a hard stance against the United States and deflect the political discussion on its failure towards the issue of the country’s sovereignty” (Farooq,
2012, p. 26). In this context, we now turn to the alleged linkages between the
NSAGs and the Pakistani state organs.

NSAs/NSAGs: State Linkages and Jihadist Policy
NSAs refers to a wide range of public and private actors, including intergovernmental organizations, international organizations, non-governmental organizations (NGOs), and any individual or group of individuals (Gordenker
& Weiss, 1995). These NSAs can be divided into five broad categories: intergovernmental organizations (IGOs), international non-governmental organizations (INGOs), transnational corporations, epistemic communities, and
NSAGs. NSAGs are described by experts as “challenger[s] to the state’s monopoly of legitimate coercive force” (Higgot et al., 2000, p. 2; Policzer,
2005, p. 2) and are also referred to as violent nonstate actors (VNSAs)
(Thomas et al., 2005). In the Pakistani context, this chapter refers to them as
NSAGs that are engaged in terrorist activities in and outside Pakistan.
According to a study conducted by Muhammad Amir Rana, in
Pakistan there are 237 Islamic groups belonging to the Hanafi-Barelvi,
Hanafi-Deobandi, Ahle-Hadith, and Shi’ite faiths, including 82 sectarian and 24 political groups. There are also 104 jihadist groups and 18 of the
Tableeghi persuasion (Rana, 2003). All these groups run their own madrassas to impart Islamic teaching to the poor segment and are considered hatcheries for violent jihad. Jessica Stern, in her seminal work Pakistan’s
Jihad Culture, has shown that there is no dearth of money for terrorist organizations and most of it comes from donations made by both common and wealthy people during religious festivals (Stern, 2000). Jihadist groups include Pashtun, Chechens, Uzbeks, and Arabs, including the TTP
(Pakistani Taliban) led by Hakimullah Mehsud, Mullah Omar’s Quetta
Shura (Afghan Taliban), Jalaluddin Haqqani’s Haqqani network, and Mullah
Fazlullah’s Tehrik-e-Nifaz-Shariyat-e-Muhammadi (TNSM) in the Swat, which is waging jihad in Afghanistan and inside Pakistan. With regard to
India and Kashmir, the major jihadist groups include Jaish-e-Mohammad
(JeM, renamed the Khuddam-ul Islam), Lashkar-e-Toiba (LeT, renamed the
Dawat-ul Irshad), Hizbul Mujahideen (HM), Harkat-ul-Mujahideen (HuM),
Al-Umar-Mujahideen (AuM), Jammu Kashmir Islamic Front (JKIF), Al-Badr,
Jamiat-ul-Mjahideen (JuM), and Dukhtaran-e-Millat (DeM), which stand declared as terrorist organizations under the Prevention of Terrorism Act

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2002 (Government of India, 2003–2004).* All these groups run their own madrassas to impart Islamic teaching to the poor. There are 6761 madrassas in Pakistan Occupied Kashmir (PoK) and of these, 1869 are Deobandi, 1616
Barelvi, 717 Ahle Hadith, and 97 Shi’ite (Rana, 2003). In recent years, new hubs of terrorist recruitment have mushroomed, away from the lawless tribal areas, in South Punjab, where such groups as Sipah e-Sahaba Pakistan (SSP),
JeM, and LeT are thriving and contributing between 5000 and 9000 militants for jihad in Afghanistan and Waziristan (Siddiqa, 2009).
Jihad as a State Policy
Scholars argue that the proliferation of jihadist groups is a consequence of the state patronage furthered under both civilian and military regimes, to achieve strategic objectives in Afghanistan and India. In 1969, under General
Yahya Khan, for the first time the military had joined hands with Islamist groups to counter the nationalists’ rise in East Pakistan, which soon seceded to establish Bangladesh in 1971. In 1973, under Zulfiqar Ali Bhutto, extensive Islamic provisions were enshrined in the first democratic constitution to appease the Islamists (Talbot, 2003). The Afghan jihad in the 1980s hastened
Pakistan’s drift further toward Islamization under General Zia (Dixit, 2002).
During this period, Pakistan diverted U.S. financial assistance to create new madrassas and train mujahideen (Haqqani 2005). In the early 1980s, General
Zia also allegedly funded Sikh insurgency in the Indian Punjab and by the late 1980s, attention was focused on Kashmir and, as discussed earlier, the alienated Kashmiri youth such as Yasin Malik were mentored and trained and the JKLF was formed to engage in the Kashmir jihad (Santhanam et al.,
2003).
Pakistan’s preoccupation with Kashmir can be discerned from General
Musharraf’s much discussed speech on January 12, 2002, in which he alluded to jihad’s centrality in Pakistan’s foreign policy. He said,
Kashmir runs in our blood. No Pakistani can afford to severe links with
Kashmir. The entire Pakistan and the world know this. We will continue to extend our moral, political and diplomatic support to Kashmiris. We will never budge an inch from our principle stand on Kashmir. (Government of
Pakistan, 2002)

The May 1999 Kargil war was another instance of Pakistan’s support to jihadist groups and of the involvement of the Force Command Northern
Areas (FCNA) and the 10th Corps of the Pakistani military. The operation
* LeT and JeM changed their names following their proscription by General Pervez
Musharraf in 2002.

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13

was also reportedly supported by the Fourth Northern Infantry Battalion,
Gilgit; Sixth Northern Infantry Battalion, Skardu; Fifth Northern Infantry
Battalion, Minimarg; and the Third Northern Infantry Battalion, Dansam.
During the course of the war, large caches of arms and ammunition with
Pakistani markings, identity cards, uniforms, and divisional and battalion patches were recovered from the killed soldiers (Dixit, 2002).
Jihadist Generals
During General Zia’s regime, the officer corps had become more “Islamized” than before and more supportive of the jihadi cause in Afghanistan and
India. It is believed that 19 retired generals attended the 1991 convention of the JI in Islamabad and even after their retirement, military and ISI officers have remained engaged with their former “clients” (Cohen, 2005). The influence of the Sunni Tableeghi Jamaat (TJ) had also grown in the officer corps in the wake of its entry into the armed forces’ premises in order to deliver sermons (Cohen, 2005). Owen Bennett Jones’ instructive analysis of the Mullah–army interface showed that the army’s growing proximity to the jihadist groups led to some senior generals becoming known for their jihadi mindset. These included Lieutenant General Muhammad Aziz Khan, who was considered more “fundamentalist” than the rest (Jones, 2002), and others identified as “fundamentalist” included Lieutenant General(s) Mehmud
Ahmed, Muzaffar Usmani (two key players in General Musharraf’s 1999 coup), and Hamid Gul, the former ISI chief.
General Muhammad Aziz Khan
A close confidante of General Musharraf and the leading figure in the Kargil war, General Aziz gained prominence for facilitating the smooth execution of the 1999 coup. Under General Musharraf, all appointments had to be approved by him and every minister and senior government official had to go through the “Aziz channel.” He cast a strong influence in shaping Pakistan’s policy on Kashmir and Afghanistan and the Comprehensive Test Ban Treaty
(CTBT). General Aziz and other like-minded jihadist generals exerted significant control over jihad in Kashmir and influence in Afghanistan under the Taliban. He also reportedly had strong links with the JI (Hussain, 2000).
He was elevated to the rank of lieutenant general without ever having commanded a corps, largely due to his influence and links with the hardliners and jihadist groups in Pakistan. General Aziz, being a Kashmiri of the Sudan tribe himself, passionately spearheaded Pakistan’s Kashmir policy and was said to have orchestrated jihadi activities in Jammu and Kashmir (Hussain,
2000). His sway among the Kashmiris was such that even after his retirement in 2004, General Musharraf kept a close watch on his links with the
Kashmir-oriented jihadist groups and the Taliban (Raman, 2004).

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Lieutenant General Mehmud Ahmed
Lieutenant General Mehmud Ahmed was corps commander, Rawalpindi, during the 1999 coup and the ISI chief when the September 11 attacks occurred. Later, he became embroiled in a controversy following his trip to
Kandahar on September 17, 2001, at the behest of General Musharraf. The intention of his trip was supposed to have been to persuade Mullah Omar to hand over bin Laden to the United States in order to avert the impending
U.S. attack. Instead, he allegedly advised Mullah Omar to stand firm and prepare for war. Following the revelation of his volte-face, reportedly by a cleric of the Binori mosque in the accompanying delegation, he was replaced by Lieutenant General Ehsan ul Haq as the ISI chief (McGirk, 2002). Media reports also suggest that on his instructions, Omar Saeed Shiekh, the person charged with the murder of Daniel Pearl, had transferred $100,000 into the account of Mohammad Atta, one of the main operatives in the September 11 hijacking (The Dawn, 2001; Meacher, 2004).
Lieutenant General Hamid Gul
Widely regarded as a hardline Islamist, Lieutenant General Hamid Gul, a former ISI chief, believes that for Pakistan, Islam is the ideology and jihad its instrument. A JI member, General Gul believes that Pakistan must Islamize itself to ward off U.S. pressures on critical issues and be able to stand up against India’s hegemony. His views were also shared by the former army chief, General Mirza Aslam Beg and Lieutenant General Javed Nasir, another
JI member. Hamid Gul labeled the overthrow of the Taliban regime as a huge
“betrayal” by the United States, which intensified his hatred of the United
States. He claims that the September 11 attacks were carried out by the Israeli secret service Mossad and its U.S. accomplices and not by bin Laden. He also acknowledges that the chain of events since September 11 have made him more fundamentalist than during the Afghan jihad and enhanced his praise of the Taliban for whom he says,
They represent Islam in its purest form so far. It’s a clean sheet. And they were also moving in the right direction when this crisis was cooked up the by the US. Until September 11, they had perfect law and order with no formal police force, only traffic cops without side-arms. Now in less than two weeks, they have mobilized some 300,000 volunteers to fight American and British invaders if they come. (quoted in de Borchgrave, 2001)

His reputation and ties among the jihadist groups can be measured by the fact that, according to an Afghan news agency, recently, under U.S. pressure, the ISI has approached Hamid Gul to urge Mullah Omar to leave
Pakistan for Afghanistan or any third country (Panjwok Afghan News,
2011).

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15

Cases of Suspect State Organ Involvement
The following are some instances of suspect ISI and state involvement in jihadist operations.
JKLF–ISI Linkage
In June 2005, while accompanying the peace delegation to Pakistan aboard the inaugural Srinagar–Muzaffarabad bus service, the JKLF* chairman
Yasin Malik said, “Sheikh Ahmed Rashid [the then Information Minister] had played a great role for the Kashmir’s liberation. He used to support the frontline Jihadis from Kashmir, but few know of his contribution” (Mir,
2005, p. 44). These supposedly gratuitous remarks triggered a political storm in both countries, leading to a series of denials and clarifications from both
Malik and Sheikh Rashid. Reportedly, Rashid had rented his farmhouse to the ISI for the harboring of militants (including Malik himself). In addition, the Pakistan People’s Party (PPP) spokesperson also confirmed that the
Freedom House in Rawalpindi was a militant training camp and, in 1989, the
ISI had been given vast tracts of land without the government’s permission for this purpose (Mir, 2005). The PoK-based JKLF chief Amanuallah Khan had once claimed, “We had a gentleman’s agreement, an oral sort of agreement. I was given assurances that the ISI was all out for the independence of
Jammu and Kashmir” (Mir, 2005, p. 46).
Army–ISI–Taliban Linkage
Prior to the U.S. attack on the Taliban regime, military officials made a clandestine visit to Kandahar in order to help the Taliban build defenses, reportedly without General Musharraf’s knowledge, and this threatened the evolving United States–Pakistan cooperation in the war on terror. The renowned journalist Ahmed Rashid told the Times of India,
Senior retired army officers said that General Musharraf was infuriated when informed of the officers’ trip because it could have jeopardized Pakistan’s relations with the United States and Britain. There is no suggestion that General
(Mehmud) Ahmed knew about the trip either, but he nevertheless resigned as
ISI chief. (Rajghatta, 2001)

* Two factions of the JKLF were born out of the parent organization called the Jammu
Kashmir National Liberation Front (JKNLF) founded in 1977 in the United Kingdom.
The faction based in Pakistan Occupied Kashmir is headed by Amanullah Khan and the one in Indian Jammu and Kashmir is headed by Yasin Malik. Through the 1990s, the
Malik faction spearheaded Pakistan-supported jihad in Jammu and Kashmir until 1996 when Malik renounced violence to pursue the peaceful route to achieve independence for Jammu and Kashmir. Currently, the Malik faction is part of the moderates-led All
Party Hurriyat Conference in Jammu and Kashmir, throwing its support behind the
India–Pakistan peace process.

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Other reports indicated Pakistani army links with the Taliban.
Indian intelligence agencies had previously informed the U.S. authorities that military goods, including ammunition and fuel, were being sent to the Taliban with the help of elements in the Pakistani government, from
Quetta to the Pakistani border town of Chaman and then to Kandahar, the Taliban stronghold. The supply resumed mostly after sunset when the official monitoring of the border ceased for the day (Staff Correspondent,
2001). According to “Patterns of Global Terrorism 2000,” the United States remained concerned with Pakistan’s alleged support for Taliban military operations in Afghanistan and for providing material, fuel, funding, technical assistance, and military advisors. The report also said that Islamabad had failed to curb the activities of some of the madrassas as recruitment grounds for jihad (Office of the Secretary of State, 2000). Other reports also revealed that as per the local intelligence sources, the Pakistani authorities provided medical facilities for the ailing bin Laden, including renal dialysis, at an army hospital in Peshawar. The report claimed that without any logistical or other kind of support from Islamabad, the Taliban would not have continued to function the way it had been functioning (Jane’s
Intelligence Digest, 2001).
Army–Taliban Joint Operation: The Kunduz Case
Another instance of suspected army–Taliban linkage was an airlift in
Kunduz, carried out by the Pakistani air force in the middle of the war.
According to press reports, in November 2001, amid growing pressure from the coalition forces and the Northern Alliance on the Taliban and alQaeda fighters in the northern hill town of Kunduz, the Pakistani army was alarmed, since among those surrounded were Pakistani soldiers, intelligence advisers, and volunteers who were fighting alongside the Taliban against the United States. Subsequent reports revealed that the Pakistani air force performed the airlift after General Musharraf had sought George
Bush’s agreement for the evacuation on the grounds that these personnel were fighting for the coalition forces and their loss or capture would create a political storm in Pakistan. Later, U.S. officials admitted that the operations undertaken in C-130 planes were thought to be of a limited nature, but eventually evacuated around 1000 pro-Taliban fighters. The CIA believes that in addition to the Pakistani army personnel, hundreds of Taliban and al-Qaeda fighters also escaped to Pakistan, among them several key Taliban leaders (Hersh, 2002).
Ahmed al-Khadir Episode: ISI’s Role
In this instance, the ISI and the army, in liaison with the Taliban, are said to have facilitated the escape of Ahmed al-Khadir, an Egyptian associate of bin
Laden, to Afghanistan. Tim McGirk reported that Ahmed al-Khadir was the

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main accused in the Egyptian embassy bombing case in Islamabad in 1995 in which 15 people were killed. Egyptian officials, having found Ahmed in a safe house in Peshawar, surrounded the house and informed the ISI chief general Mehmud Ahmed in order to expedite his capture. As it turned out later, no security operation or arrest occurred; instead, a car with a diplomatic registration carrying Taliban officials arrived and whisked al-Khadir away to Afghanistan through the Khyber Pass. The later official explanation was, “So sorry. The man gave us the slip” (McGirk, 2002). Quoting Ahmed
Rashid, McGirk writes that al-Khadir was allowed to escape because he knew too much about ISI’s links with al-Qaeda. On another occasion, bin Laden was alleged to have been allowed to slip away when an operation undertaken by a U.S.-trained Pakistani commando unit under ISI supervision did not do
“squat” (McGirk, 2002).
Omar Saeed Sheikh and the Daniel Pearl Murder Case
Omar Saeed Sheikh was the mastermind behind the abduction of three tourists, including two British and an American citizen in Jammu and
Kashmir in 1994. Fortunately, the hostages were rescued by the Indian security forces and Sheikh was captured. In a turn of events, Sheikh had to be released along with Maulana Masood Azhar, the JeM founder, in a trade-off to secure the release of 178 passengers aboard Indian Airlines flight IC-814, which was hijacked in December 2001 by Sheikh’s group, the
National Youth Movement for the Sovereignty of Pakistan. In February
2002, Sheikh kidnapped Daniel Pearl, a Wall Street journalist, who was investigating the Pakistani connection with the shoe bomber, Richard
Colvin Reid. Later, Daniel Pearl was beheaded by his captors, which compelled the United States to pressure Pakistan for Sheikh’s arrest.
Subsequently, Sheikh surrendered and was sentenced to death by the
Terrorism Court on July 15, 2002, but is yet to be executed. He is held in
Hyderabad jail under high security as authorities fear his comrades-in-arm may attempt his rescue (Ansari, 2005). Intriguingly, General Musharraf ’s reaction to Pearl’s killing was to say that he had become a victim of “intelligence games” and was “over inquisitive” and “getting involved” in the story (of Richard Reid) (McCarthy, 2002). Musharraf ’s remarks suggest the complicity of the establishment, especially the top army leadership, in
Pearl’s murder. It is noteworthy that the demands for ransom from Pearl’s captors included expediting the long due delivery of F-16 fighters by the
United States. Equally interesting is the allegation that when Sheikh was pressured by the army and ISI to surrender, he made a deal to surrender to the person of his choice with the condition that he not be extradited to the United States, failing which he would expose the establishment’s role in the case. The Pakistani government relented and Sheikh surrendered to Brigadier (retd.) Ijaz Shah, a former ISI contact of Sheikh, who at that

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time was the home secretary of Punjab (McCarthy, 2002). Earlier, in the wake of the 2001 Indian parliament attack, in which Sheikh was reportedly involved as well, a livid Musharraf is said to have barged into the
ISI headquarters screaming at the ISI director general (internal security),
“Leash in these mad dogs that you have kept” (Hasan, 2005).
2008 Mumbai Attacks and ISI Involvement
On November 26, 2008, 10 LeT terrorists, believed to have been trained by the ISI, carried out a brazen 60-h siege in Mumbai in which 166 people, including security personnel and 26 foreign nationals, were killed
(Government of India, 2008–2009). The terrorists attacked the Leopold Café in Colaba, a popular tourist place, the Chatraparti Shivaji Terminus railway station, Cama hospital, Metro Cinema hall, Nariman House (owned by the orthodox Jewish community), and the Taj and Oberoi hotels. They had captured the vessel Kuber after killing its navigator Amarsingh Solanki and used an inflatable speedboat to enter Mumbai via the sea route, equipped with automatic weapons, grenades, and explosives (Indian Express, May 25,
2009). In the counterterrorist operations, 22-year-old Ajmal Amir Kasab was captured alive. He later confessed to his crime and has been sentenced to death on four counts by the local court in Mumbai (He was hanged to death on 21st November 2012.). He revealed that the objective was to destabilize India and seek the liberation of Kashmir (Indian Express, May
25, 2009). Pakistan, after initially denying the nationality of the terrorists, acknowledged that they were indeed Pakistanis (Kamal & Baruah, 2009).
Under intense Indian and international pressure, Pakistani Interior
Minister Rehman Malik also admitted that part of the planning had been done in Pakistan. India has provided several dossiers, based on their investigations, to the Pakistani authorities to act upon. The Pakistani authorities later arrested the alleged mastermind, Zaki-ur-Rehman Lakhvi, and five others, including Hammad Amin Sadiq, Zarar Shah, Mohammed Ashfaq, Javaid
Iqbal, and Abu Al-Qama. India has maintained that LeT chief Hafeez Saeed is the key accused who must be arrested for perpetrating terrorist attacks in India. In an interview in June 2011, Rehman Malik responded, “We had detained him [Hafiz Saeed, LeT leader]. The law does not go by statement but evidence. If we are provided actionable evidence we will act against him”
(Indian Express, June 29, 2011).
In a significant development, following his arrest, David Coleman
Headley, the Pakistani-born American and an LeT operative, revealed that he had done extensive reconnaissance of the targets and identified entry and escape routes. In a U.S. court, he testified that the ISI had planned the entire Mumbai operation in tandem with the LeT and implicated Major
Iqbal of the ISI, Hafiz Saeed, and Tahawwur Rana, a U.S.-based Pakistani
Canadian, along with four others in the attacks (Hindustan Times, May 24,

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2011). Tahawwur Rana, who was later acquitted of the charges, said in his defense that his actions “were done at the behest of the Pakistani government and the ISI, not the Lashkar terrorist organization.” Pakistan had reportedly hired the Dallas-based law firm, Locke Lord Bissell & Liddel, to block the lawsuit (by the relatives of the 2008 Mumbai Jewish attacks) in a U.S. court that accused Lieutenant General Ahmad Shuja Pasha, the current ISI chief and his predecessor Nadeem Taj, of complicity in the Mumbai attacks
(Hindustan Times, May 24, 2011). The testimony of Abu Jundal, mentioned earlier, also points to the involvement of the ISI and the LeT in masterminding the Mumbai operations.

International Law and Accountability of the Pakistani State
The debate over a state’s linkage with NSAGs operating from its territory is enmeshed in complexities due to the covert nature of the alleged linkages; the legal requirements under international law to establish the linkage and state accountability based on credible evidence; and, should this linkage be established, the determination of what lawful options (political, diplomatic, and military) are prescribed under international law for the victim states in order to safeguard themselves against the wrongful acts of NSAs. The inherent difficulty, if not implausibility, on the part of the victim states to produce “substantive” and “actionable” evidence to establish the involvement of state organs and their linkage with NSAGs remains a major inducement for many states to employ NSAGs to further foreign policy goals. Intelligence agencies and military regimes may fund
NSAs in order to achieve their strategic objectives, which raises concerns over the autonomy of these NSAs from state control (Josselin & Wallace,
2001). International law clearly distinguishes between state and nonstate actors, but this distinction has been eroded in recent decades in several disciplines including jus ad bellum (use of force). States have carried out proxy wars and guarded themselves under the principles of territorial sovereignty and nonuse of force in international relations. Any state that engages in such tactics and perpetrates terrorism through terror groups is liable for this international breach of state obligations, as much as are the responsible terrorist groups themselves (Brown, 2002). As shown in the preceding sections, there is considerable evidence that elements connected with the Pakistani military and the ISI have used jihad as a tool of state policy and promoted terrorist groups in order to achieve strategic objectives in Afghanistan and India. In this context, it becomes necessary to go one step further and examine under international law what constitutes an
“act of the state” and “state organ” in order to determine how accountable the Pakistani state is for these groups and their wrongful acts.

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International Law Commission
In 2001, the International Law Commission (ILC) in its 53rd session adopted draft articles on “Responsibility of States for Internationally Wrongful Acts,” which through codification and progressive development sought to formulate the fundamental rules of international law concerning the responsibilities of states for their internationally wrongful acts. It is important to underline that although the legal provisions pertaining to the conduct and responsibilities of NSAs have been recognized, the provisions and law on attributing the acts of NSAs to the state have not been recognized. Nonetheless, there are three key ILC Articles on State Responsibility (ILCASR), which in the Pakistani context are relevant.
Article 1. (Responsibility of a state for its internationally wrongful acts):
Every internationally wrongful act of a State entails the international responsibility of that State. (ILC, 2001, p. 32)

Responsibility is defined as “borne by a state for acts which are directly imputable to it, such as acts of its government, or those of its officials or private individuals performed at the government’s command or with its authorization” (Jennings & Watts, 1992, pp. 501–502).
Article 2. (Elements of an internationally wrongful act of a State):
There is an internationally wrongful act of a State when conduct consisting of an action or omission: a) is attributable to the State under international law; and b) constitutes a breach of an international obligation of the State.
(ILC, 2001, p. 34)
Article 4. (Conduct of organs of a State):
1. The conduct of any State organ shall be considered an act of that State under the international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organization of the central government or of a territorial unit of the
State.

2. An organ includes any person or entity which has that status in accordance with the internal law of the State. (ILC, 2001, p. 40)

Article 5. (Conduct of persons or entities exercising elements of governmental authority): The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance. (ILC, 2001, p. 42)

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Article 8. (Conduct directed or controlled by a State):
The conduct of a person or a group of persons shall be considered an act of a
State under international law if the person or the group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct. (ILC, 2001, p. 47)

Rulings of ICJ
The following cases have been adjudicated by the ICJ and are very instructive in determining what can be considered “an act of the state” and under what circumstances the state can be targeted and to what extent the state can be held accountable for the unlawful acts of NSAs operating from its territory. These cases have been chosen for the purpose of this study because of some similarities with the Pakistan case. The Genocide case entails the alleged involvement of the former state of Yugoslavia’s linkage in facilitating the acts of the Serbian military, which reportedly carried out genocide against Muslims and non-Serbs. In the Democratic Republic of Congo (DRC)
v. Uganda case, the DRC alleged that the Ugandan military violated its territorial integrity and committed mass murders and human rights violations, similar to the claims of the Pakistani state against the U.S. and India’s claims against Pakistan. In the Nicaragua v. United States of America case, the court had to determine whether targeting of the Nicaraguan government and the military by the United States through the Nicaraguan contras was a lawful act. As with the other two cases, in this case also, the ICJ based its judgment on its interpretation of the principles of “attributability,” “self-defense,”
“armed attack,” and “proportionality” among others under customary international law, principles that are relevant to the discussion on Pakistan’s case.
Genocide Case
In 2007, in a much debated and discussed case, the ICJ determined the contours of state responsibility under the Genocide Convention in the
Genocide case pertaining to the alleged involvement of Serbia (former state of Yugoslavia, FRY) in the genocide against Bosniaks (Bosnian Muslims) and non-Serb minorities in Srebrenica during the early 1990s. The case was brought to the court by the Republic of Bosnia and Herzegovina. The ICJ declined to attribute genocide to the FRY for lack of evidence that the court deemed was necessary in order to establish direct commission of genocide by the state. Unfortunately, in this case, the ruling of the ICJ has been subject to rigorous criticism by scholars, because of the court’s reliance more on the Genocide Convention of 1948, rather than on the provisions of international humanitarian law or customary law, which could have established a greater obligation on the part of the FRY (Birkland, 2009). On the question of “attribution,” the court said that the FRY furthered “considerable military

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and financial support available to the Republika Srpska [Republic of Serbia]” and “had it withdrawn that support, [it] would have greatly constrained the options that were available to the Republicka Srpska authorities” (Birkland,
2009, p. 1642). However, despite this kind of support rendered by the FRY, the
VRS (the military of the Republic of Serbia) could not be considered a de jure organ of the FRY as required under international law (Birkland, 2009). On the basis of the reports submitted by the Dutch Military Intelligence Service and the U.S. Intelligence Agency, the ICJ found that the VRS acts were not under the instructions, directions, or control of the FRY (Jiminez, 2007).
The court ruling has also drawn criticism from scholars for constituting a very high and strict attribution test and ignoring circumstantial evidence of intent (Birkland, 2009). At the same time, it must be highlighted that the ICJ also established FRY’s clear obligation to rein in the NSAs over which it exercised considerable influence, by broadly interpreting a state’s obligation to prevent genocide. In the court’s opinion, although there was little evidence to suggest that Serbia exercised “effective control’ over the Bosnian Serb forces, there was still satisfactory evidence that Serbia had sufficient control over the
VRS, establishing its liability for failure to prevent the genocide (Birkland,
2009). The ICJ ruling on this count has set a precedent of imposing liability upon states for failing in their responsibility to prevent a wrongful act that was not otherwise attributable to them, under the obligation of “duty to prevent” (Birkland, 2009, p. 1649).
DRC v. Uganda Case
In the Democratic Republic of Congo (DRC) v. Uganda case, the DRC had claimed that the latter’s troops had invaded its territory, committing human rights violations, massacring a large number of Congolese, looting property, and causing widespread destruction. In response, in its December 19, 2005 judgment, the ICJ found that Uganda:

a) violated the principles of non-use of force in international relations and of non-intervention;
b) violated its obligations under international human rights law and international humanitarian law; and
c) violated other obligations owed to the Democratic Republic of Congo.
(Armed Activities, 2005)

The court ruled that Uganda, by engaging in military activities against the DRC on the latter’s territory, by occupying Ituri, and by actively extending military, logistic, economic, and financial support to irregular forces having operated on DRC territory, violated the principle of nonuse of force in international relations and the principle of nonintervention. The court also dismissed Uganda’s claims that its actions in the period between 1998

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and 1999 constituted self-defense. The court said that Uganda had violated the territorial integrity and sovereignty of the DRC and its actions equally constituted interference in the internal affairs of the DRC. The court did not find any satisfactory evidence to prove the DRC’s claims that Uganda created and controlled the Congo Liberation Movement (MLC), led by Jean-Pierre
Bemba (Armed Activities, 2005).
The court also found that the DRC, by the conduct of its armed forces, which attacked the Ugandan embassy in Kinshasa, maltreated Ugandan diplomats and other individuals on the embassy premises, maltreated Ugandan diplomats at Ndjili International Airport, as well as by its failure to provide the Ugandan embassy and Ugandan diplomats with effective protection and by its failure to prevent archives and Ugandan property from being seized from the premises of the Ugandan embassy, violated obligations owed to the
Ugandan government under the Vienna Convention on Diplomatic Relations of 1961 (Armed Activities, 2005).
The court’s decision that since the attacks carried out by anti-Ugandan rebels operating from DRC territory could not be attributed to the DRC,
Uganda had no right to use force in self-defense on DRC territory, has triggered severe criticism from scholars (Trapp, 2007). The court had based its decision on the ground that use of force against NSAs in another state’s territory is considered a violation of that state’s territorial sovereignty under
Article 2(4) of the UN Charter, even if the use of force is defensive and is not directed at the state’s apparatus. But scholars argue that the court has provided no guidance regarding the circumstances under which legal use of force in self-defense can be used against the NSAs. Scholars argue that
Article 51 of the UN Charter, wherein the inherent right of self-defense rests, is an exception to the prohibition of the use of force against the territorial integrity of the state. Article 51 provides,
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the
Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. (Charter of the United Nations, 1945)

As far as the use of force against NSAs is concerned, it can be lawfully undertaken under the rubric of customary international law. Under customary international law, an armed attack against NSAs can be reconciled with the territorial sovereignty of the state on the territory of which the use of force is intended, by fulfilling the requirement of “necessity” and “proportionality”

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(Green, 2006, p. 480). The element of necessity requires that force should be the last option after all political and diplomatic options have been exhausted to resolve the issue, and proportionality means that the use of force be tailored in such a fashion that it does not go beyond what is necessary to halt or prevent the armed attack in question (Charter of the United Nations,
1945). In the event that the state or the territory in which the NSAs are based is actively doing all that can be done to counter the activities of the NSAs and prevent the launching of terrorist attacks, then the justification for selfdefense on the part of the victim or injured state is nullified. However, in the case that the state or the territory in which the NSAs are based is unable or unwilling to prevent such attacks and rein in the NSAs activities, the victim state has few options, and is then forced to either respect the territorial integrity of the other state at its own peril or launch an attack in a targeted fashion against the NSAs as specified under customary international law (Charter of
United Nations, 1945).
Nicaragua v. United States of America Case
In the case of Nicaragua v. United States of America, which related to military and paramilitary activities in and against Nicaragua, the ICJ dealt with the question of whether U.S. assistance to Nicaraguan contras as an act of “self-defense” on behalf of El Salvador amounted to a legitimate right of collective self-defense. The court ruled that the U.S.-supported contras were directly targeting the Nicaraguan government and military, and there was no satisfactory evidence to prove the existence of circumstances under which the United States could have done it. The court rejected the justification of collective self-defense maintained by the United States in undertaking military and paramilitary activities in and against Nicaragua. The court observed that whether self-defense is individual or collective, it can only be exercised in response to an “armed attack.” This is to be understood as meaning not merely action by regular armed forces across an international border, but also the sending by a state of armed bands into the territory of another state, if such an operation, because of its scale and effects, would have been classified as an armed attack had it been carried out by regular armed forces. The court rejected the argument that the concept of
“armed attack” includes assistance to rebels in the form of the provision of weapons or logistical or other support. In the court’s view, the United
States, by training, arming, equipping, financing, and supplying the contra forces or otherwise encouraging, supporting, and aiding military and paramilitary activities in and against Nicaragua, had acted against the Republic of Nicaragua in breach of its obligations under customary international law not to intervene in the affairs of another state. The court also determined that the United States had carried out certain attacks on Nicaraguan territory in 1983–1984 and had acted against the Republic of Nicaragua

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in breach of its obligations under customary international law not to use force against another state. The court ruled that if one state, with a view to the coercion of another state, supports and assists armed bands in that state, the purpose of which is to overthrow its government, this amounts to intervention in its internal affairs, no matter what the political objective of the state giving support may be. Therefore, the support provided by the
United States to the military and paramilitary activities of the contras in
Nicaragua constituted a clear breach of the principle of nonintervention
(ICJ, 1986).
It is pertinent to point out that the court’s decision in this case evoked strong criticism from legal experts. In fact, one of the judges on the bench that decided this case, Judge Schwebel, gave a dissenting opinion regarding the judgment. In his opinion, the United States had acted lawfully in exerting armed pressures against Nicaragua, since the scale of Nicaragua’s prior and sustained support to armed insurgency in El Salvador was tantamount to an armed attack upon El Salvador, on behalf of which the United States was acting in self-defense. Judge Schwebel stated that “the actions of the United
States are strikingly proportionate. The Salvadoran rebels, vitally supported by Nicaragua, conduct a rebellion in El-Salvador; in collective self-defence, the United States symmetrically supports rebels who conduct a rebellion in
Nicaragua. The rebels in El-Salvador pervasively attack economic targets of importance in El Salvador; the United States selectively attacks economic targets of military importance” in Nicaragua. He argued that in contemporary international law, the state that first intervenes with the use of force in another state—as by substantial involvement in the sending of irregulars onto its territory—is prima facie, the aggressor. Another dissenting opinion came from Judge Sir Robert Jennings, who viewed that on the use of force, on intervention, and on the question of self-defense, the court lacked jurisdiction. Judges Oda and Ruda regretted that the court had needlessly been brief and hasty in giving its views on collective self-defense and should not have dwelled upon that aspect at all (ICJ, 1986).
The ICJ decisions in the above cases, especially in the Nicaragua case, have been subject to intense scrutiny. Scholars and legal experts have taken a strong position on the ICJ’s interpretation of “self-defense,” “armed attack,”
“attribution,” and “international responsibility.” Scholars have questioned the rationale that any action justified by the UN Security Council (UNSC) in self-defense against an NSA cannot be undertaken collectively or individually by states under the rubric of customary international law on self-defense, which is also provided by Article 51 of the UN Charter. The actions that the
UNSC deems itself competent to undertake against an NSA under Articles
41 and 42 in accordance with Article 39 cannot become impermissible when taken against the same actor by an attacked state under Article 51 in exercise of a state’s inherent right of self-defense. An attacked state has as much right

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to act in self-defense under Article 51 as does the UNSC under Chapter VII
(Frank, 2001).*
For any action to be taken in self-defense by an injured state individually or in cooperation with other states collectively, it is essential that the attack be attributed to the NSA or the state against which the use of force (jus ad bellum) is directed. It is absolutely necessary to show that the state or NSA is responsible for that attack and that a breach of international obligation had occurred on the part of the state on the territory of which the NSA in question is based. Under the 1970 Declaration on Principles of International Law
Concerning Friendly Relations and Cooperation among States, “Every State has the duty to refrain from organizing, instigating, assisting or participating in … terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve threat or use of force”; this is also invoked by the 1994 UN General Assembly Declaration on Measures to Eliminate International Terrorism (Brown, 2003). In the case of an organization providing funding, training, logistical support, and direction to that individual, the organization is also responsible for the attack. The responsible organization, taken as a whole, will be considered to have committed the attack. Based on this rationale, when a terrorist organization is responsible for an attack, a state may use counterforce not only against the individuals, but also against the entire organization. And since terrorist groups are largely based in the territory of states, when they attack other states, they make the state on which they are based liable for the attack (Brown, 2003).
As in the case of Afghanistan under the Taliban regime, and arguably of
Pakistan that allegedly provided logistical, financial, and training support to
* Article 39 of Chapter VII of the UN Charter states, “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” Article
40 states, “In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in
Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.” Article 41 states,
“The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” Article 42 states,
“Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”

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a large number of terrorist groups based on their territory under its control, a state can be considered to have committed an act of aggression and thereby breached its international obligation not to engage in or support terrorist acts
(United Nations General Assembly, 1974).*
State responsibility toward an international wrongful act committed by NSAs or its agents can be imputed in three ways: original responsibility, responsibility by endorsement, and vicarious responsibility. Original responsibility is borne by a state for acts that are directly imputable to it, such as acts of its government, or those of its officials or private individuals performed at the government’s command or with its authorization. It also includes activities of those persons who and organizations which are not organs or employees of the state, but have been acting as its agents, as specified under Article
8 of ILCASR. The limitation of this responsibility is that it does not apply to acts committed by agents or NSAs that are not controlled by the state, although it may have breached its international obligations by enabling the act (Brown, 2003). Under its international obligations, a state has to ensure that it exercises due diligence in not only preventing a wrongful act by those who are not its agents or organs, but also brings them to justice. Failure on these counts will be deemed as an endorsement of those acts by that state, as seen in the Iranian hostage crisis of 1979–1980, and therefore, all acts thereon committed by the NSA would be imputed to the state on the territory of which they are based. The difficulty with this category of responsibility, however, is that the states know well that support for international terrorism is prohibited under international law and therefore they would refrain from directly endorsing the acts of NSAs (Brown, 2003).
Vicarious responsibility provides for a state to be held responsible for the acts committed by NSAs or agents who are not part of its organs or authorized by it, by its failure to prevent the act or bring the culprits to justice
(Jennings & Watts, 1992). This category of responsibility can be imputed to Pakistan in the attack on the Indian parliament by JeM in 2001 and the
Mumbai siege of 2008 by LeT, for its failure to bring the culprits to justice.
Maulana Masood Azhar, the leader of JeM, and Maulana Hafeez Saeed are still at large in Pakistan and engaging in terrorist activities against India, apparently with impunity. The information that India has provided has not convinced the Pakistani authorities enough to take any action, and they have sought “substantive” and “actionable” evidence (Naqvi, 2012).
As ruled in the Corfu Channel case of 1946 by the ICJ, a case in which two
British warships had been sunk after running into a minefield in Albanian
* Definition of “Aggression”: “Aggression is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this
Definition.”

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territorial waters, a state that is or should be aware of a terrorist attack against another state, but fails to prevent and warn about it or ignores it, should be held responsible for the attack under the criteria of vicarious responsibility. Also, if the state had been generally supporting an NSA and not necessarily its activities on a case-by-case basis, the linkage between the support and responsibility would be proximate enough to hold the state vicariously responsible for the wrongful act against another state committed by the NSA
(Brown, 2003).
Under Article 51 of the UN Charter, nothing prohibits the use of individual or collective self-defense in the wake of an armed attack against a member of the UN, until the UNSC has undertaken any necessary measure to address the situation. In the case of NSAs based in and operating from
Pakistan, the United States and other injured states such as India can undertake an act in self-defense because of the Pakistani state’s apparent inability to prevent these attacks and its apparent unwillingness for strategic reasons to eliminate terrorist groups such as the Taliban and LeT. The ongoing U.S. military strategy of drone attacks in Pakistan is based on the same rationale under which the United States fired 79 Tomahawk cruise missiles against terrorist training camps in Afghanistan and Sudan on August 20, 1998, in response to the bombings of U.S. embassies in Nairobi and Dar es Salaam.
The justification for the missile attacks offered by the then U.S. president Bill
Clinton to the Speaker of the House of Representatives and president of the
Senate was as follows:
The United States acted in exercise of our inherent right of self-defence consistent with Article 51 of the United Nations Charter. These strikes were a necessary and proportionate response to the imminent threat of further terrorist attacks against U.S. personnel and facilities. These strikes were intended to prevent and deter additional attacks by a clearly identified terrorist threat. The targets were selected because they served to facilitate directly the efforts of terrorists specifically identified with attacks on U.S. personnel and facilities and posed a continuing threat to U.S. lives. (Quoted in Murphy,
1999, p. 161)

In its notification to the UNSC, the United States said:
The attacks were carried out only after repeated efforts to convince the
Government of the Sudan and the Taliban regime in Afghanistan to shut these terrorist activities down and to cease their cooperation with the Bin
Laden organization. That organization has issued a series of blatant warnings that ‘strikes will continue from everywhere’ against American targets, and we have convincing evidence that further such attacks were in preparation from these same terrorist facilities. The United States, therefore, had no choice but to use armed force to prevent these attacks from continuing.

How Nonstate Are Terrorist Groups in Pakistan?

29

In doing so, the United States has acted pursuant to the right of self-defense confirmed by Article 51 of the Charter of the United Nations. The targets struck, and the timing and method of the attack used, were carefully designed to minimize risks of collateral damage to civilians and to comply with international law, including the rules of necessity and proportionality. (Quoted in
Murphy, 1999, p. 163)

In the ongoing war on terror, the U.S. strategy is based on the right of self-defense enshrined in Article 51 of the UN Charter and continues to target terrorist hideouts inside Pakistan by conforming to the requirements of necessity and proportionality, as mandated by customary international law. Some international law experts also justify drone attacks as perfectly legal under the 2001 U.S. Authorization for Use of Military Force against al-Qaeda (Addicot, 2011). Pakistan’s alleged inability and reluctance to wind up its jihadist infrastructure until Afghanistan and Kashmir are settled to its satisfaction can be deemed a violation of UNGA Resolution 2625 (XXV), which proclaims that,
Every state has the duty to refrain from organizing, instigating, assisting, or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts … no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed toward the violent overthrow of the regime of another State, or interfere in civil strife in another
State. (United Nations General Assembly, 1970)

In sum, under customary international law, a victim state can carry out a lawful attack in self-defense against NSAs and the state under the following circumstances: First, the state itself consents to an attack being undertaken by another state against NSAs that are based in its territory (Brown, 2003). An example is the case of Sri Lanka, which had requested the assistance of the
Indian Peace Keeping Forces (IPKF) in fighting against the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka in 1987. Second, the state on the territory of which the NSAs are based is unwilling to prevent the use of its territory to launch attacks against other states, in contravention of the definition of aggression enshrined in UNGA Resolution 3314. And third, the state on the territory of which the NSAs are based is unable to prevent its territory from being used to launch attacks on other states. In these three exceptional cases, the use of military force against NSAs based in another state is deemed lawful (Brown, 2003).

Conclusion
This chapter discussed the employment of NSAs and NSAGs as instruments of states’ foreign policy in order to enhance regional influence and achieve

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strategic objectives. In the Pakistani context, in light of the discussion based on Pakistani and external sources, it was highlighted how the formidable jihadist infrastructure has been sustained using linkages with the state organs and how it continues to pose a serious threat to Pakistani, regional, and international security. Many of these NSAs and NSAGs appear to continue to have sympathizers in the Pakistani military and the ISI due to the historical links created during the Afghan jihad during the 1980s. The testimonies of Abu Jundal and David Coleman Headley put the spotlight on the alleged role of the ISI in executing terrorist operations in India through
NSAGs, including the LeT. The available literature and official reports demonstrate how the alleged NSAGs–state organ linkages have been implicated in attacks on the United States and its allies in Afghanistan. In July 2011, the United States reportedly deferred $800 million aid to Pakistan for expelling U.S. military trainers and for suspect ISI links in the killing of the journalist Saleem Shehzaad, who was investigating the infiltration of extremist elements in the military and the ISI (Schmitt & Perlez, 2011). The jihadist infrastructure comprises a number of NSAGs of different sizes and influence and their affiliated madrassas continue to impart extremist teachings and produce radicalized fighters to fight in Afghanistan and Kashmir, allegedly with the ideological, logistical, and financial support of the Islamist parties and sympathizers in the ISI and the military, both serving and retired.
As more NSAGs, including the Haqqani network, Quetta Shura, TTP, and
TNSM, entered the scene, the jihadist infrastructure assumed a more formidable character, now threatening even Pakistan’s own security and stability. Despite the repeated assurances by the Pakistani military and civilian regimes to prevent Pakistani territory from being used for terrorist purposes, these NSAGs seem to continue to thrive and undertake their operations in and outside Pakistan—and with impunity. As discussed earlier, Pakistani as well as international scholars argue that the unconstrained activities of these NSAGs are facilitated by their alleged acquiescence with state organs.
Some analysts argue that the inability or unwillingness of some elements in the military and ISI to purge these groups amounts to a contravention of
Pakistan’s obligations under UNGA Resolution 2625 (XXV).
In this context, the U.S. frustration in pushing the Pakistani government to do more has compelled the former to target terrorist groups hiding in the lawless tribal areas of Pakistan, using drones and commando raids.
The chapter analyzed the political fallout from drone attacks and commando raids, how it has been perceived unfavorably in the tribal areas, and how it has intensified anti-Americanism across Pakistan in public and in political circles. The Pakistani parliament has taken a strong position on the continued U.S. attacks and labeled them as violations of its territorial sovereignty, which led to the closure of the U.S. drone base at the Shamsi air base and the closure of routes for NATO supplies. The United States has continued to

How Nonstate Are Terrorist Groups in Pakistan?

31

pressure Pakistan to do more against the NSAGs targeting NATO, simultaneously justifying the drone strikes under the principles of “self-defense.”
On the eastern front, based on the evidence provided by the Indian authorities, the chapter suggests the complicity of Pakistani state organs in providing finances, training, weapons, and infrastructure to terrorist groups operating in Kashmir and other parts of India. The Indian authorities allege that despite years of protesting and providing evidence about the involvement of the ISI in terrorist operations, the Pakistani government has not purged the activities of groups including LeT and JeM. In this context, as the scholars argue in the U.S.–Pakistan case, India can also justify its inherent rights for self-defense as an injured state under law to protect its citizens and interests by targeting these groups based in the territory controlled by Pakistan. In recent years, as the U.S. patience ran out with the
Pakistani government’s continuing failure to rein in these groups, it chose to target these groups inside Pakistan, unilaterally. Based on the discussion in the preceding section, it can be argued that the Pakistani government can be held accountable for the acts of the NSAGs in light of the evidence that indicates that some elements within the ISI and the Pakistani military continue to maintain links with these groups and provide them with necessary support and training, in breach of Pakistan’s international obligation under
UNGA Resolution 2625.
The chapter noted three key cases referred to the ICJ involving the role of NSAGs and alleged state involvement. The ICJ decisions shed light on the extent of state responsibility regarding the acts of NSAs; the rights of injured states under international law; the issue of territorial sovereignty of the state on the territory of which the act of self-defense is exercised; and the state’s obligation to prevent wrongful acts by the NSAs. The ICJ rulings in the Genocide case, the DRC v. Uganda case, and the Nicaragua v. United
States case established several relevant precedents that are very instructive in the U.S.–Pakistan and India–Pakistan contestations. The ICJ stated that any armed attack undertaken by a state in self-defense on behalf of another state is unlawful, unless it is consented to by the state on behalf of which the act of self-defense is undertaken. It will be considered a violation of the state’s territorial sovereignty. The court also said that in order to target the state, the wrongful attacks of the NSAs must be attributable to the state, failing which it would be deemed unlawful. However, scholars and legal experts also found that there is an exception available to the state’s right of territorial sovereignty under customary international law. UNGA Resolution 2625 clearly establishes state responsibility to refrain from supporting acts of terrorism, failing which the injured states can exercise the right of self-defense to protect its interest and citizens as specified by Article 51 of the UN Charter, and target the NSAGs by complying with the requirements of necessity and proportionality. Pakistan’s seeming inability or alleged reluctance to rein in the

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NSAGs operating from its territory shows the state’s culpability in the attacks undertaken by them against the United States, Afghanistan, and India.
While many of these attacks cannot be attributed to the Pakistani state, at the same time Pakistan cannot be absolved of its accountability and must do everything in its capacity to prevent these groups from injuring other states.
In the face of noncompliance or the inability of the Pakistani government to purge these groups that have imperiled its own security, the state must act either unilaterally or jointly with the injured states, failing which the United
States and India can justify attacks against these NSAGs on the basis of “selfdefense” within the boundaries of the principles of “necessity” and “proportionality” under international law.

Acknowledgment
The author wishes to thank Dr. Melanie O’Brien, a research fellow in the Centre of Excellence in Policing and Security (CEPS), Griffith University, Australia, for her comments and research material support in the writing of this chapter.

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Sea (Maritime) Piracy in the Southern
African Development
Community Region

2

MOSES MONTESH

Contents
Introduction 38
Definition 38
Causes of Piracy and Maritime Terrorism
39
Pirates’ Objectives
39
Consequences of Piracy
40
Incidents of Piracy within SADC Region from 2009
41
Weaponry and Funding
42
Types of Pirate Attacks
43
Hit-and-Run Robbery
43
Cargo Heist and Hostage Attacks
43
Phantom Ship
43
Stowaways 44
Modus Operandi
44
How Vulnerable Is the Rest of the SADC Region?
44
Challenges 45
Geographical Scope of the Offence
45
Limitations within UNCLOS Definition of Piracy
46
Exercising Jurisdiction over Pirates: Limitations or Rules of Priority 47
Capacity to Try Pirates
47
Nexus between Rule-of-Law, the Economy, and Piracy
48
Recent Successful Arrests, Prosecutions, and Convictions of Pirates within SADC Region
48
Recommendations 49
Address Underlying Causes
49
Extend Mandate of Maritime Security Coordination Centre
49
Implement Standing Maritime Committee Functions
50
Technology 50
Establish an SADC Standby Brigade
50
37

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Counterterrorism and Piracy Strategy
51
Establish Prosecutorial Strategy
51
Role of INTERPOL
52
Criminal Jurisdiction
53
Conclusion 54
References 54

Introduction
Sea piracy is an organized crime. The degree to which it is a threat at any level, from the purely local to the international, depends on the degree to which it is organized effectively. Even with the lowest level of organization, piracy like street crime can be immensely destructive. If not confronted, it can suppress economic activity and distort economic incentives, lower productivity by increasing security and replacement costs, erode confidence in authority, and undermine notions of justice. The Southern African Development
Community (SADC) region is a major trading partner to some of the largest economies of the world, including the United States, Europe, China, and the rest of Africa. This means that the transportation of goods via the southern
African coastline is of vital importance. Strategically situated along vital sea routes of the world, the South Atlantic, the Indian, and the Southern Oceans,
SADC has a coastline of about 3000 km along which its maritime waters are vulnerable to pirate activities. Therefore, it is important for the region to guard against pirates because one cannot predict with absolute certainty when pirates will strike its shores. This chapter seeks to explore the causes, extent, and modus operandi of piracy, as well as proposed strategies to combat it.

Definition
Sea piracy, or piracy as it is widely known, is a crime defined by geography that requires the presence of other factors, such as a permissive political environment, cultural acceptability, and the opportunity for reward, in order to flourish (Murphy, 2005). According to the United Nations Law of the Sea
(Article 101) of 1982, piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any state;
(b) any act of voluntary participation in the operation of a ship or of an aircraft

Sea (Maritime) Piracy in the SADC Region

39

with knowledge of facts making it a pirate ship or aircraft; (c) any act inciting or of intentionally facilitating an act described in sub-paragraph (a) or (b).

In 1982, the United Nations (UN) adopted Article 101 in order to provide an international legal definition for piracy.
The International Maritime Organization (IMO) conforms to Article
101 of the United Nations Law of the Sea, which restricts piracy to “illegal acts of violence or detention acts committed on the high seas, or outside the jurisdiction of a coastal state, for private ends by private ship against another private ship.” The IMO regards acts of violence or detention committed against ships, occurring within the jurisdiction of a state, as armed robbery at sea. On the other hand, the International Maritime Bureau
(IMB) has a much broader definition of piracy, namely, “an act of boarding or attempting to board any ship with the intent to commit theft or any other crime and with the attempt to or capability to use force in the furtherance of that act.” For the purposes of this chapter, piracy is simply defined as “the hijacking of ships in the sea for the purpose of robbing or asking for ransom.”

Causes of Piracy and Maritime Terrorism
The main reason for the increase in piracy and maritime terrorism has been the collapse of law and order in Somalia. Since 1991, Somalia has been engulfed in anarchy. Years of peace negotiations between various factions have been fruitless. In 1991, a breakaway nation, the Somaliland Republic, proclaimed its independence. Since then, several warlords have set up ministates in Puntland and Jubaland (Botha, 2007). As a result of lawlessness, the
Islamic Courts Union (ICU) was established in 2006. The Islamic movement’s growing power base and militancy led to increasingly open warfare between the Islamists and other factions of Somalia. Since Somalia has no proper government structures, every warlord fights for control of a territory. Pirates have taken advantage of this situation. After seeing the profitability of piracy, since ransoms are usually paid in large amounts of money, warlords began to facilitate pirate activities, splitting the profits with the pirates. This has led the pirates to extend their area of operation into the SADC region, especially the Tanzanian coast and Mozambican channel.

Pirates’ Objectives
In addition to the hijacking of ships, the holding of the crew hostage, and the theft of cargo, other targets of the attackers include the cash in the ship’s

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safe, the crew’s possessions, and any portable ship’s equipment (Botha, 2007).
Where there has been evidence of tampering with containers, it may be an indication that the raiders may initially have gained access when the ship was berthed in port and then jumped over the side of the ship with what they could carry.

Consequences of Piracy
The threat of piracy has impacts much broader than on maritime trade, placing high costs on whole economies, both directly and indirectly. Any form of piracy and the specter of piracy attacks create uncertainty, which increases the perceived risk and dampens economic activity through several channels and regions (Costs of Maritime Terrorism and Piracy, 2003).
Sailors aboard targeted vessels face prospects of weeks in captivity and even death—although relatively few have been killed. The insurance premiums paid by shipping companies have soared since the attacks began in earnest, and anyone sending freight around the east coast of Africa now has to pay about 10 times the previous amounts (Costs of Maritime Terrorism and
Piracy, 2003).
This has an inevitable knock-on effect for consumers, with prices bound to rise at the destinations of many cargo ships. Shipping companies might even begin to send their vessels on longer journeys around Africa’s west coast, and if that happens, the economic consequences could be considerable (Costs of Maritime Terrorism and Piracy, 2003). Many shipowners are now advised to buy war risk insurance cover for their ships because normal insurance cover excludes losses caused by weapons of war, bombs, or rockets. In addition to obtaining ransoms, pirates are also involved in drug smuggling and human trafficking.
Furthermore, Greenberg et al. (2006) suggest the following summary of the types of consequences of maritime piracy and terrorism that might affect individuals, the private sector, and the public sector. Broadly, these consequences fall into one of three groups: human, economic, and intangible effects. Human consequences refer to the effects on lives caused by fatalities and injuries. It is people who are injured or killed and who suffer debilitating psychological consequences following terrorist attacks. Moreover, the indirect consequences of fatalities and injuries can flow into both the public and private sectors, particularly in terms of economic costs. Again, the costs associated with fatalities and injuries may be transferred, at least in part, through compensatory mechanisms like insurance and civil tort claims, with some of the burdens associated with human injuries borne by the private sector.

Sea (Maritime) Piracy in the SADC Region

41

Economic consequences are those effects easily quantified in financial terms. Attacks that damage facilities, ships, vehicles, airplanes, infrastructure, or products and raw materials reduce the assets of private firms. In cases in which power is disrupted or computer networks are targeted, loss of data may also reduce a firm’s assets that enable future revenues. Damage to infrastructure, facilities, and information systems may propagate into both short- and long-term economic disruptions (Greenberg et al., 2006). Firms may immediately experience delivery delays, loss of revenue from interrupted business, and increased transportation costs. Reduction of demand or supply could eliminate the benefits of economies of scale until facilities and infrastructure can be replaced. As the magnitude and duration of the disruptions to infrastructure, facilities, and information systems increase, the consequences can be more permanent. Firms may experience long-term transportation inefficiencies. Intangible effects capture those effects that are difficult to measure in human lives or financial metrics, either because they are measured in metrics that are not easily translated into lives or financial metrics or because the cause-and-effect linkage is not understood well enough to allow a precise estimation and attribution of effects.
According to Gardner (2011), the treatment meted out to victims by the sea pirates in Africa now frequently crosses the line from savagery to torture. Pirates, frustrated when their ransom demands are not met fast enough, have now resorted to inflicting punishments on ordinary seafarers, which include being locked in a ship’s freezer, dragged below the hull, or tied up on deck with a gun to their head and subjected to mock executions, sometimes during a forced phone call to their families. Such treatments have resulted in many of the victims suffering lifelong trauma.
In some instances, victims are taken up to the bridge deck and tied up with plastic bags, ropes, and nylon ropes for long hours, and sometimes even their genitals are tied up.

Incidents of Piracy within SADC Region from 2009
According to the IMO and the IMB, the incidents shown in Table 2.1 have been reported in the east coast of the SADC countries since 2009.
Table 2.1, provided by the IMO and the IMB, shows that there has been a significant increase in vessel attacks by pirates in the east coast of Africa, especially the SADC region. This can be attributed to the increase in the reported incidents of piracy, the ability of the pirates to attack vessels further down the east coast, the fact that they are better armed and organized and also a lack of proper law enforcement in the affected region
(Tomberlin, 2008).

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Table 2.1 Incidents of Piracy within the SADC
Region from 2009
Country

Year

Number of Attacks

Tanzania

2009
2010
2011
2009
2010
2011
2009
2010
2011
2009
2010
2011
2009
2010
2011

7 9 9 3 1 1 1 1 3 1 2 3 6 8
10
55

Madagascar

South Africa

Seychelles

Mozambique

Total

Weaponry and Funding
Pirates and maritime terrorists in Africa have little difficulty procuring weapons on the private market, in large part because the region is awash in small and sophisticated arms.
According to Bland (2008), pirates and maritime terrorists get most of their weapons from Yemen, but a significant amount comes from Mogadishu,
Somalia’s capital. Weapons dealers in the capital receive a deposit from a middleman on behalf of the pirates and the weapons are then driven to
Puntland where the pirates pay the balance. Both small arms and heavier weapons, including surface-to-air missiles, can be procured throughout the region. Orders can also be placed with international arms traffickers who fly and ship weapons into remote landing strips and bays undetected. The most common weapons used by pirates are predominantly Russian Kalashnikov
(AK-47) assault rifles, rocket-propelled grenades (RPG-7), rocket launchers, and semiautomatic pistols (Menkhaus, 2007).
Additionally, given the particular origin of their weaponry, they are likely to have machine guns and hand grenades, such as Russian fragmentation hand grenades, also known as RGD-5s. These are weapons of war; hence, in many quarters, the pirates’ activities are regarded as terrorism. This, in turn, creates opportunities for association with other pirates or terrorist networks. Pirates also use phantom ships to attack their targets. Many of these

Sea (Maritime) Piracy in the SADC Region

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phantom ships that set off to sea with a cargo and then disappear into dangerous waters are sailed by crewmen with false passports and competency certificates. The false documents are used to escape detection by the port authorities. Types of Pirate Attacks
Pirates today are armed with global positioning system (GPS) trackers, high-speed boats, grenade launchers, computers, Swiss bank accounts, and machine guns. Subsequently, today, there are many different types of pirate attacks. Most of the attacks prey on the crew and the ships’ safes for their on-hand cash. The remaining pirates steal cargo and take hostages, commandeering the whole ship, or they attempt to plant a “stowaway” on the ship before it sails. According to Tomberlin (2008), there are four types of pirate attacks, namely, the hit and run, the cargo heist, the phantom ship, and the stowaway. Hit-and-Run Robbery
The hit-and-run robberies usually occur early in the morning when the majority of the crew is asleep and the crew standing watch are dozing at their stations. The pirates will stealthily pull alongside the ship, some utilizing poles to scale the sides of the vessel. Once on board, the pirates can easily command the vessel at will (Osterburg & Ward, 1992).
Cargo Heist and Hostage Attacks
A second type of pirate attack is called a cargo heist and hostage attack and involves a larger band of pirates. The pirates rob the crew and make off with the cargo, sometimes taking crew members as hostages. Many of these attacks are organized after the pirates research the manifest of the target vessel through Internet services. Once the ship is targeted, the pirates usually attack the vessel with two or more small, fast crafts. This will help to confuse the helmsman and assist the pirates when boarding (McDaniel, 2007). The
Somali pirates commonly use this type of attack in the Indian Ocean and other parts of the world.
Phantom Ship
The act of utilizing a phantom ship begins with the theft of the vessel. The crew is disposed of by sudden death or they are set adrift in the open sea. The ship is then transported to a safe haven and repainted, renamed, and given a fresh set

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of forged documents. These types of pirates tend to be the most sophisticated and well organized. Organized crime syndicates and government officials are the likely culprits in this type of attack (McDaniel, 2007).
Stowaways
A less sophisticated way for pirates to attack a vessel is from within. This type of piracy plants either a false crew member on board or a hidden stowaway, who waits until the time is right and radios the ship’s location and route to the attackers (McDaniel, 2007).

Modus Operandi
Modus operandi is a process that seeks to analyze the ingredients of a crime, and then, by a systematic comparison with analyses of other crimes, to establish the identity of the criminal (Osterburg & Ward, 1992). Pirates and maritime terrorists use sophisticated weapons, such as AK-47s, RPG-7s, satellite phones, and GPS equipment. The satellite phones are used to communicate with the backers inland and the GPS equipment is used to locate the vessels as well as their direction while at sea. In most cases, pirates use the so-called mother ships, which are bigger in size, and then load smaller high-speed boats, which are used to surprise the vessels (Westcott, 2008). The mother ships are able to operate over a longer period of time and in varying weather conditions.
These mother ships are also used to broadcast false distress signals, followed by attacks by deployed smaller boats when steaming ships are approaching the mother ship to render assistance (Mahan & Griset, 2008).
Pirates use three kinds of experts, namely, local fishermen, considered the brains of the pirates’ operation due to their skills and knowledge of the sea; ex-militiamen, who used to fight for the local clan warlords, for their military skills; and technical experts, who operate high-tech equipment such as GPS
(Jordan, 2009). Money paid as ransom arrives in burlap sacks that are sometimes dropped from helicopters or cased in waterproof suitcases and loaded onto tiny skiffs in the rumbling, shark-infested waters (Murphy, 2005). To authenticate the money, the pirates use currency-counting machines, the same technology used at foreign exchange bureaus worldwide. These machines are said to have been purchased from business connections in Dubai, Djibouti, and other areas.

How Vulnerable Is the Rest of the SADC Region?
Tanzania, Mozambique, Namibia, Mauritius, Madagascar, Comoro Islands,
The Reunion, Seychelles, South Africa, and Angola pose a serious security

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threat in the SADC with regard to piracy, first because of their coastlines and secondly because of historical factors. Angola and Mozambique have been affected by long-lasting, full-scale civil wars with a number of weapons still unaccounted for. Namibia and South Africa had internal conflict and it cannot be concluded that that history has no bearing on future events. Tanzania,
Mozambique and Madagascar are strategically in the east of the SADC, with
Tanzania to the north of the other two countries.
According to the African Union Commission Strategic Plan (2009–
2012), concerns have been raised about the lack of effective law enforcement infrastructures in Tanzania, Mozambique, and Madagascar. Furthermore,
Jordan (2009) states that piracy has been taking place sporadically along the east coast, including the Mozambican channel. Several ships heading to and from South African ports have been victims, including the product tanker MV Bow Asir in March 2009 as it headed for Durban, and the cruise liner MSC Melody after it left South Africa bound for Italy. The crew of the Bow Asir was held for ransom, while the MSC Melody managed to escape the pirates (Jordan, 2009). There is a possibility that similar incidents may occur in the SADC territorial waters. Sporadic piracy and terrorist attacks along the coasts of Tanzania have been reported in the past
3 years already.

Challenges
Geographical Scope of the Offence
Sea piracy may be committed anywhere seaward of the territorial sea of a state. Equally, the jurisdiction and powers granted to states to suppress acts of piracy apply in all seas outside any state’s territorial waters. However, the reference in Article 101 to piracy occurring on the “high seas” may be slightly misleading. In terms of Article 86, the United Nations Convention on the Law of the Sea (UNCLOS) prima facie excludes the exclusive economic zone (EEZ) from being part of the high seas. This might suggest that piracy in the EEZ is a matter for the coastal state. However, Article 58(2) provides that Articles 88 to 115 and other pertinent rules of international law apply to the EEZ in so far as they are not incompatible with this part.
This makes it plain that the provisions of the high seas regime (including all provisions on piracy) “apply to the exclusive economic zone in so far as they are not incompatible with UNCLOS provisions on the EEZ.” Within the
EEZ, the coastal state enjoys sovereign rights “for the purpose of exploring and exploiting, conserving and managing natural resources” and jurisdiction over certain other subject matters (Article 56, UNCLOS). Nothing in
Article 56 is incompatible with the UNCLOS provisions on piracy; therefore,

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under Article 58(2), the general law of piracy applies to all pirate attacks outside territorial waters. If acting in another states’ EEZ, a government vessel engaged in suppressing piracy is obviously obliged to have “due regard” for the coastal state’s rights in matters of natural resources, marine pollution, and others in any action it takes.
Limitations within UNCLOS Definition of Piracy
The most obvious limitation within the UNCLOS definition is that it only covers, under Article 101(a)(i) of 1982, attacks committed from a private vessel against another vessel. It therefore does not cover the seizure of a vessel. UNCLOS makes it quite clear that government vessels cannot commit piracy, unless the crew mutinies and uses the vessel to carry out acts of violence against other ships (Article 102). Outside of mutiny, any unlawful acts of violence by a government vessel against another craft are a matter of state responsibility, not the law of piracy. Some slight ambiguity is introduced by the words “any illegal acts of violence or detention, or any act of depredation” in Article 101(a).
One could ask under what system of law acts must be “illegal”; or whether there is a meaningful difference between the use of the words
“acts of violence” (plural) and “act of depredation” (singular). The ordinary meaning, object, and purpose of these words would suggest that a broad approach should be taken. Piracy has always been an international crime enforced by national laws, the exact terms of which have varied between jurisdictions. It may be difficult to give these words the kind of clear and precise meaning that would accord with modern expectations that criminal offences should be precisely drafted in advance. It is perhaps better to consider Article 101(a)(i) as setting out the jurisdiction of all states to:
(1) prescribe and enforce a national criminal law of piracy and (2) take action to suppress and prosecute piratical acts of violence on the high seas.
Much more controversy has been caused by the words “for private ends” in Article 101(a). It has often been held that the requirement that piracy be for “private ends” means that an act committed for “political” motives cannot be piracy. Thus, some commentators hold that “terrorism” can never be “piracy.” An alternative view holds that the relevant distinction is not “private/political” but “private/public.” That is, any act of violence on the high seas not attributable to or sanctioned by a state (a public act) is piracy (a private act). These approaches accord both with the drafting of the relevant UNCLOS provisions, which make it clear that a public vessel cannot commit piracy, and with some modern case law indicating that politically motivated acts of protest can constitute piracy. In the
Somali context, seizing private vessels in order to demand large ransoms from private companies—without any claim to be acting on behalf of a

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government or making demands of any government—can only be an act
“for private ends.”
Exercising Jurisdiction over Pirates: Limitations or Rules of Priority
Article 105 of the UNCLOS of 1982 refers only to the power of the seizing state to try a seized pirate. However, as a matter of customary international law, every state has jurisdiction to prosecute a pirate subsequently present within their territory, irrespective of any connection between the pirate, their victims, or the vessel attacked and the prosecuting state (universal jurisdiction).
In addition to the existence of universal jurisdiction in public international law, states may also have jurisdiction over suspected pirates on other bases as a matter of national law.
Following the ordinary principles of criminal jurisdiction, the state of the suspected pirate’s nationality, the state of nationality of the suspected pirate’s victim, and the flag state of any involved vessels may all also have valid claims of jurisdiction over a suspected pirate. An act of piracy, like any number of other offences, may provide a number of states with equally valid claims to exercise jurisdiction over an offence. The law of piracy under
UNCLOS does not place any express responsibility upon a seizing state to try an arrested pirate. It simply provides that the seizing state “may” decide upon the penalties to be imposed, including prosecution (Article 105). On its face, this is a discretionary power, not an obligation. However, in exercising this discretion, a state should bear in mind its duty to “cooperate to the fullest possible extent in the repression of piracy.” This is contained in Article 100 of the UNCLOS of 1982.
Capacity to Try Pirates
The principle of universal jurisdiction calls for the domestic prosecution of apprehended pirates. However, not every country has the capacity to do so while guaranteeing the rights of the accused, and in the process of such prosecutions, countries risk running afoul of international standards of fairness, due process, and human rights. Additionally, there are no uniform procedural standards across the national contexts where a prosecution might occur and domestic legal systems may lack the necessary legislation to prosecute fairly and effectively (Jordan, 2009). Therefore, because not all countries would mete out the same punishment for the crime of piracy, domestic prosecution of piracy could raise issues of legitimacy and accountability. It could be suggested that both the development of model legislation and a reliance on international courts would help domestic legal systems reform their substantive law and prosecute in a manner consistent with international law.

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Nexus between Rule-of-Law, the Economy, and Piracy
There is a general recognition that piracy off the coast of Africa represents a unique case. The long-term solution requires rebuilding the collapsed
Somali government infrastructure. In the intervening period, building the domestic rule-of-law capacity of other governments in the region willing to prosecute pirates seems a wise idea (Starr, 2008). Such an approach would help to bring regional and domestic legal systems up to international standards. Doing so might have a stabilizing effect in the region. Financing such capacity building may also provide an incentive to states to participate where otherwise they would not. Although effective maritime enforcers might be better equipped to fight piracy, the ultimate solution must be one that deals with the political system ashore, that is, a nation-building solution. One concern though is the international community’s ability to intervene in Somalia. Nearly two decades of unsuccessful international efforts directed at Somalia highlight the significant uncertainty and cost of such capacity building (Jordan, 2009). Moreover, recent international events suggest that there are significant, potentially negative consequences to the imposition of law and institutions from without and some caution against this.

Recent Successful Arrests, Prosecutions, and Convictions of Pirates within SADC Region
According to INTERPOL (2011), on July 26, 2011, the Seychelles Supreme
Court convicted and sentenced 11 Somali pirates. Eight accused were convicted for acts of piracy, and three others for aiding and abetting an act of piracy. The 11 pirates were each sentenced to 10 years’ imprisonment. The offenses took place in the Seychelles EEZ on December 5 and 6, 2009, when a TOPAZ ship was attacked with automatic weapons by the pirates in two different skiffs. The aiders and abettors were found in a mother skiff not very far from the attack. Evidence has revealed that the mother skiff had provided ammunition and firearms to the two attack skiffs before they effected the attack. The conviction of these pirates is a historical milestone as it is the first time that a piracy trial was successfully prosecuted in the
Seychelles (United Nations Office on Drugs and Crime, 2010).
Moreover, these convictions will assist in the building of confidence of the countries and institutions supporting Seychelles in efforts in the region, and in doing so, it will serve as a deterrent to prospective Somali pirates who would otherwise have thought that they would have entered the SADC waters with impunity.

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Recommendations
Before embarking on any set of measures or recommendations, it is imperative for governmental or other agencies concerned to gather accurate statistics of the incidents of piracy and armed robbery against ships; to collate these statistics under both type and area, to assess the nature of the attacks with special emphasis on the types of attack, the accurate geographical location, and the modus operandi of the wrongdoers; and to disseminate or publish these statistics to all interested parties in a format that is understandable and usable. Advanced intelligence could also prove useful in providing information to governments in order to be able to act in a coordinated manner even before an attack occurs. Therefore, the following approaches are recommended. Address Underlying Causes
According to Rutherford (2007), addressing the underlying cause means looking at a multitude of social and political factors that drive people to support pirates’ activities as a means of furthering their cause. It means recognizing and respecting the grievances that lead a small minority to commit such crimes, more importantly, the causes that lead to broader social support for organizations tied to these crimes. This is a very difficult recommendation. The SADC alone cannot address this aspect. This needs an intervention by the African Union and the UN as well as other role players.
Extend Mandate of Maritime Security Coordination Centre
The Marine Security Coordinating Centre (MSCC) was established in July
2004 in order to facilitate the coordination of South Africa’s obligation to the
Merchant Shipping (Marine Security) Regulation of 2004 within the framework of the IMO and the International Ship and Port Facility Security (ISPS)
Code. The primary function of the MSCC is to ensure the security compliance of South Africa’s ports as well as the vessels using them. In terms of this option, South Africa and its counterparts need to second officers from the
South African Navy and the South African Police Service’s Sea Border Control
Unit as well as marine and coastal management (MCM) from the Department of Environmental Affairs and Tourism and the custom services of the South
African Revenue Services. This model can be implemented like the Australian
Border Protection Command (Tomberlin, 2008). The Australian Border
Protection Command not only responds to security incidents in Australia’s offshore maritime areas, but also investigates ways to prevent incidents before they occur (Australian Department of Foreign Affairs and Trade, 2003).

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Implement Standing Maritime Committee Functions
The establishment of the Standing Maritime Committee follows the mandated decision of the Inter-State Defence and Security Committee (ISDSC) emanating from recommendations of a seminar held in Gaborone in March 1995 and validated at the inaugural meeting of the Standing Maritime Committee in
July 1995. It is a subcommittee of the Operations Sub-Sub-Committee (SADC
Standing Maritime Committee, 2006). The purpose of the Standing Maritime
Committee is to promote peace and prosperity in the region through maritime military cooperation. Its aim is to achieve an optimum degree of maritime military cooperation in the southern African region within the aims and objectives of the ISDSC.
Technology
The South African Maritime Safety Authority has set up a regional, long-range vessel monitoring system as from September 2009. The new system, required by international maritime law, is expected to aid South African neighbors, including Mozambique, Namibia, and Tanzania (Jordan, 2009). The longrange identification and tracking (LRIT) of ships aims to enhance security for government authorities. LRIT provides ship identity and current location information in sufficient time for a government to evaluate the security risk posed by a ship off its coast and to respond, if necessary, to reduce the risk.
The LRIT system was set up under the auspices of the IMO. It aims to provide a global system for the identification and tracking of ships that extends the monitoring of ships beyond those areas covered by existing Automatic
Identification System (AIS) coastal networks. The LRIT system is mandatory for all passenger ships, high-speed crafts, mobile offshore drilling units, and cargo ships of over 300 gross tonnes. This is good news for South Africa and the SADC as a whole, taking into account that South Africa’s territorial waters are about 27 million km2—almost 25 times the country’s land area.
Establish an SADC Standby Brigade
In terms of this recommendation, SADC countries need to contribute a substantial number of navy personnel that can be posted along the coasts of
Namibia, South Africa, Mozambique, and Tanzania.
The brigade can operate in the same way as the Combined Task Force 150, which was established by countries such as Canada, Denmark, France, and
Germany, to monitor, inspect, board, and stop suspect shipping to pursue the war on terrorism (Mahan & Griset, 2008). In addition to these functions, the brigade can establish a Maritime Security Patrol Area (MSPA) along the coastline from Namibia to Tanzania. The command of such a brigade can

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rotate among the member countries (South African National Defence Force
Military Strategy, 2007).
Counterterrorism and Piracy Strategy
South Africa has legislation that governs piracy and terrorism. However, more needs to be done. It is worth noting that the weapons at the disposal of the world community for combating piracy and terrorism may conveniently be placed under four headings: laws, police agencies, military forces, and legal systems. As concerns laws, the measures for dealing with pirates and maritime terrorists are, by and large, similar in most countries of the world. Legislation governing terrorism in South Africa seems to be fine; however, legislation piracy and maritime terrorism seems to be lacking. When the European Community abolished border controls, it raised many difficult issues relating to the combating of terrorism (Elagab, 1995). However, these have been rectified by the adoption of various international conventions. In most European countries, special antiterrorist units have been established (Elagab, 1995). Ideally, the results of intelligence gathering should be utilized by teams of specialists from various disciplines in order to secure a better understanding of the suspect’s movements to be combated and take the initiative away from them.
Establish Prosecutorial Strategy
Although the unprecedented antipiracy naval operations undertaken by the international community have thwarted several hijacking and kidnapping attempts on the high seas, their utility is limited by the lack of political will and the capacity for prosecuting pirates. Regional, domestic, or international courts could address these problems in different ways and with varying degrees of success (Mahan & Griset, 2008). Whichever strategy or combination of strategies involving courts that is eventually pursued, consensus must emerge and it should take account of the following: First, any solution must reflect the reality that piracy is a global, not a local, problem. Pirate attacks occur in areas as far apart as the South China Sea and the coast of Namibia.
Moreover, just as states may cooperate to thwart pirate attacks, pirates may cooperate by trading information and pooling resources to reduce the effectiveness of counterpiracy operations. Secondly, there are two tiers of actors executing piratical acts—the perpetrators on the ground and the ringleaders.
While pursuit of each may require a different legal or military strategy, any prosecutorial rules or fora developed to try pirates should take into account the importance of holding the “big fish” accountable.
Thirdly, no solution to piracy can ignore human rights concerns (Elagab,
1995). This means that states must ensure that the trials of accused pirates are procedurally fair; articulating a framework for the capture and detention of

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pirates that is consistent with human rights law; and balancing the need to prosecute against the risk of asylum claims once an accused has served his/ her sentence. Fourthly, a long-term solution to piracy would seem to require capacity building at the domestic level.
Piracy is an extension of land-based violence, itself rooted in weak state institutions, poverty, domestic lawlessness, and corruption. A critical part of developing a strategy for prosecuting pirates should therefore take into account a commitment to supporting local institutions (including courts), promoting a culture of rule of law, and adding value to local economies
(Rutherford, 2007). Finally, the issues of cost, capacity, and a lack of political will have conspired to lead many states to regularly decline to accept captured pirates for prosecution in their domestic courts. Since increasing the number of pirates prosecuted is a key part of antipiracy efforts, a future prosecution strategy should include: (1) providing support to those states that have already demonstrated a willingness to prosecute pirates, (2) addressing the concerns of states that have shown an unwillingness to prosecute by working with them to reform national laws to make prosecutions more convenient and less risky, and (3) continued consideration of the major role that a regional or international court could play in antipiracy efforts should domestic prosecutions prove inadequate to suppress piracy.
Role of INTERPOL
INTERPOL’s activities in relation to international fugitives have been part of its core business since the organization’s creation. SADC countries are members of the Southern African Regional Police Chiefs Cooperation
Organisation (SARPCCO), which forms part of INTERPOL within the southern African region (INTERPOL, 2010). INTERPOL circulates internationally, at the request of member countries, electronic diffusions and notices containing identification details and judicial information about wanted criminals. The INTERPOL Red Notice has been recognized in a number of countries as having the legal value to serve as a basis for provisional arrest.
The persons concerned are wanted by national jurisdictions or International
Criminal Tribunals, where appropriate, and the Red Notice is intended to help police to identify or locate these individuals with a view to their arrest and extradition. Furthermore, INTERPOL has established a Maritime Piracy
Task Force, which focuses on three main areas to counter maritime piracy, working closely with the international community:
1. Improving evidence collection
The maritime environment poses unique difficulties for collecting evidence. In this instance, INTERPOL provides advice, training, and equipment to member countries worldwide in order to improve the quality and

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quantity of the data collected and to make sure evidence is properly preserved and analyzed. With the creation of a Global Database on Maritime Piracy currently in progress, INTERPOL will soon be in a position to better analyze piracy networks. This will enable it to help member countries identify and arrest high-value individuals involved in Somali maritime piracy— such as piracy leaders and financiers—and to identify their assets.
2. Building regional capabilities
The majority of prosecutions for maritime piracy are conducted in African or Asian countries. INTERPOL is currently working to develop the capabilities of police investigation units on a regional level. By providing specialized training and equipment prior to trial, INTERPOL is in a position to increase the likelihood of successful prosecutions in the future.
3. Working in partnership
Due to the extent and nature of maritime piracy, international and cross-sector partnerships are vital in order to prevent, investigate, and prosecute these crimes. INTERPOL works with the following international organizations:
•
•
•
•
•
•
•

UN
IMO
Baltic and International Maritime Council
European Union
Europol
Eurojust
African Union

Criminal Jurisdiction
A person apprehended at sea outside the territorial sea of any state, for committing acts of piracy or armed robbery against ships, should be prosecuted under the laws of the investigating state by mutual agreement with other substantially interested states. A substantially interested state means a state:
• Which is the flag state of a ship that is the subject of an investigation or
• In whose territorial sea an incident has occurred or
• Where an incident caused, or threatened, serious harm to the environment of that state, or within those areas over which the state is entitled to exercise jurisdiction as recognized under international law or
• Where the consequences of an incident caused, or threatened, serious harm to that state or to artificial islands, installations, or structures over which it is entitled to exercise jurisdiction or

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• Where, as a result of an incident, nationals of that state lost their lives or received serious injuries or
• That has at its disposal important information that may be of use to the investigation or
• That, for some other reason, establishes an interest that is considered significant by the lead investigating state or
• That was requested by another state to assist in the repression of violence against crews, passengers, ships, and cargoes or the collection of evidence or
• That intervened under UNCLOS Article 100, exercised its right of visit under UNCLOS Article 110, or effected the seizure of a pirate/armed robber, ship, or aircraft under UNCLOS Article 105 in port or on land
These recommendations are based on the IMO recommendations to governments for preventing and suppressing piracy and armed robbery against ships, which were adopted on June 26, 2009.

Conclusion
Piracy poses a serious threat to the well-being of the citizens of any country. The above analysis shows that piracy poses a significant threat to the whole world due to the increasing frequency, sophistication, and severity of regional pirate attacks, as well as their knock-on effects. The analysis of the pirates’ threat reveals that, on balance, the danger posed by lower-order piracy and the risks associated with higher-order piracy are significant enough to warrant fairly robust regional governmental action. There is a general consensus that piracy consists of a set of traditional crimes that are used to create a climate of terror within a community or a particular region. In most instances, the most common types of crimes in the area include conspiracy, murder, kidnapping, hijacking, bombing, robbery, and extortion. Unfortunately, all these crimes appear throughout the discussion of piracy in this chapter. Hence, in response to these problems, the UN passed numerous resolutions in order to combat piracy and terrorism as well. However, it is very important that member states design strategies to combat piracy. On the other hand, one of the challenges facing the SADC region is the lack of resources and strategies to combat piracy from the member states.

References
African Union Commission. (2009–2012). African Union Strategic Plan. Directorate for Strategic Planning Policy, Monitoring, Evaluation and Resource Mobilisation.
Addis Ababa: African Union.

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Australian Department of Foreign Affairs and Trade. (2003). Cost of maritime terrorism and piracy and the benefits of working together. Paper Presented to APEC High Level Meeting on Maritime Security and Cooperation, Malaki
City, Manila, September 8–9, 2003. Retrieved October 12, 2010, from http:// wwww.bpc.gov.au. Bland, A. (2008). The Big Question: Why has piracy exploded off the coast of Somalia, and how can it be stopped? The Independent, Wednesday November 19, 2008.
Retrieved October 16, 2010, from http://independent.co.uk/news/worl/africa/ the-big-question-why-has-piracy-ex. Botha, A. (2007). Relationship between Africa and International Terrorism: Causes and linkages. Paper prepared for the Conference on Southern African and
International Terrorism. Dialogue hosted by the Brenthurst Foundation. Tswalu,
January 25–27, 2007. Retrieved October 16, 2010, from http://www.iss.co.za/ static. Elagab, O. Y. (1995). International Law: Documents Relating to Terrorism. London:
Cavendish Publishing Limited.
Gardner, F. (2011). Pirate violence targeted by worldwide campaign. BBC News.
Retrieved June 5, 2012, from http://www.bbc.co.uk/news/uk-15103818.
Greenberg, M. D., Chalk, P., Willis, H. H., Khilko, I., & Ortiz, D. S. (2006). Maritime
Terrorism: Risk and Liability. Pittsburg: RAND Corporation.
INTERPOL. (2010). Fact sheet booklet. COM/FS/2010-12/DCO-03. Lyon, France.
INTERPOL. (2011). Fact sheet booklet. COM/FS/2011-11/DCO-01. Lyon, France.
Jordan, B. (2009). High sea outlaws to walk the plank. New Big Brother system will help out during the 2010 World Cup and beyond. Johannesburg: Sunday Times,
August 23, 2009.
Mahan, S., & Griset, P. L. (2008). Terrorism in Perspective. California: SAGE.
McDaniel, F. (2007). Piracy, maritime terrorism and regional interests. Institute of South
East Asian Studies. Retrieved October 16, 2010, from http://www.iseas.edu.sg.
Menkhaus, K. (2007). Terrorist activities in ungoverned spaces: Evidence and observations from the Horn of Africa. Paper prepared for the Conference on Southern
African and International Terrorism. Dialogue hosted by the Brenthurst
Foundation. Tswalu, January 25–27, 2007. Retrieved October 16, 2010 from http://www.iss.co.za/static. Murphy, M. N. (2005). Suppression of piracy and maritime terrorism. United States of America: Naval War College Review.
Osterburg, J. W., & Ward, R. H. (1992). Criminal Investigation: A M ethod for
Reconstructing the Past. Cincinnati, OH: Anderson Publishing Company.
Rutherford, C. (2007). Fighting terrorism without terrorizing: A discussion of nonmilitary operations for confronting international terrorism. Thesis submitted to the University of Witwatersrand for the degree of Master of Arts International
Relations in the Faculty of Humanities. Retrieved October 16, 2010, from http://wiredspace.wits.ac.za/bitstream/handle/10539/5780/CMRutherford. pdf?sequence=2.
South African National Defence Force Military Strategy. (2007). Application of
Maritime Power in the South African Context. Retrieved December 3, 2010, from http://www.mil.za.
Southern African Development Community (SADC). (2006). Standing Committee on Piracy and Terrorism. Pretoria: Department of Foreign Affairs.

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Tomberlin, R.L. (2008). Terrorism’s Effect on Maritime Shipping. Downers Grove, IL:
InterVarsity Press.
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3, July 2010. Vienna: United Nations.
Westcott, K. (2008). Somalia’s pirates face battles at sea. BBC News. Retrieved May 2,
2010, from http://news.bbc.co.uk/2/hi/7358764.stm.

The Responsibility to Protect from Terror
Putting an End to
Unilateral Misuse of the
Precautionary Principle

3

HARJASS SINGH

Contents
Introduction 57
Back to the Basics: The Morality of Law and Preemptive Wars
58
Precautionary Principle: Testing the Three Legs of the Tripod
60
Economic Criticism
61
Violation of Established Customs and Basic Tenets of International Law
61
Tracing Historical Application of Precautionary Principle
63
Living Up to the Responsibility to Protect against Terror
64
Definitional Challenges
64
Problems of Jurisdiction
65
Conclusion 66
References 67

Introduction
International law, since the time of Hugo Grotius and the Peace of
Westphalia, has been considered the law governing nation states; nation states alone. It is only recently that the role of nonstate actors in shaping international relations, and hence international law, has entered the public consciousness. However, that fateful day of September 11, 2001, shall remain branded in the archives of international law as the day that brought to prominence the most dreadful nonstate actor—the terrorist.
A decade and two major wars later, humanity is still no closer to countering the menace posed by terror. A decade, a few trillion dollars, and countless slogans later, the “war on terror” has borne little fruit. A decade on from that day, humanity is still in search of an answer. Through this chapter, I try to
57

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provide some answers that have evaded us with respect to the Bush Doctrine’s reinterpretation of the precautionary principle.
First, in declaring a war on terror, it is submitted that there has been a declaration of an unending “war” on an indeterminate body. As Noam
Chomsky puts it, terrorism is “what our leaders declare it to be” (Ward,
2009, p. 15). To date, no definition of terrorism has managed to establish a clear consensus among the vast majority of nations, while at the same time addressing the numerous components and threats posed by terrorist acts.
Yet, leaders of the only remaining “superpower” nation have launched a preemptive war against this undefined entity. I believe that the practical problem posed by the lack of a clear-cut definition can be solved through reliance on some of the more well-established provisions of the Rome
Statute.
The next subsection shall entail a jurisprudential study of Lon L. Fuller’s observations regarding the eight ways to fail to make law as well as his hilarious take on the fictitious king Rex’s bungling attempts at formulating “good law.” In so doing, I will highlight some of the most gaping and fundamental flaws in the practice surrounding preemptive wars.

Back to the Basics: The Morality of Law and
Preemptive Wars
Lon L. Fuller, in his restrained departure from the classical natural law approach, managed to string together a compelling jurisprudential understanding of the law. Fuller propounded the idea of the existence of twin moralities: “the morality of duty” and “the morality of aspiration.”
The morality of duty, according to Fuller (2009), represents the basic prerequisites of a smoothly functioning society. For example, the long-standing tenet “Thou shalt not kill” would constitute the morality of duty, since it is impossible in today’s world to imagine an orderly society that does not espouse this tenet. As Fuller puts it, “[The Morality of Duty] does not condemn men for failing to embrace opportunities for the fullest realisation of their powers. Instead, it condemns them for failing to respect the basic requirements of social living” (Fuller, 2009, p. 6).
The morality of aspiration, on the other hand, represents the quest for excellence. It signifies the requirements of a perfect society. Unlike the condemnation faced for nonobservance of the morality of duty, compliance with the morality of aspiration is looked at as worthy of reward (Fuller, 2009). For example, exemplary bravery displayed by individuals is rewarded by society in the form of honorary distinctions. Ideally, as society progresses, the morality of duty moves toward the morality of aspiration, thereby expecting greater standards of observance from its subjects.

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59

Fuller, in linking morality with law, claims that the morality of duty happens to be the closest sibling of the law. He claims that an inherent feature of this morality of duty is the “rule of reciprocity,” that is, one follows certain grundnorms of society expecting that the other members of society shall be subjected to the same scrutiny (Fuller, 2009). This rule of reciprocity is something we all know to be the driving force behind the application of international law. In fact, given the inviolable principle of “sovereignty,” it presents us with the only form of checks and balances in international law.
The only thing binding a sovereign nation state to fulfill its treaty or customary obligations agreed with another sovereign state is the reciprocal nature of international relationships.
Hence, I submit that this simplistic statement made by Fuller in 1963, at the William L. Storrs Lecture Series, points to the biggest cause for the failure of “preemptive wars,” both in countering terrorism, as well as in winning the support of nations around the world. Preemptive wars have worked with utter disregard for that very rule of reciprocity that has sustained international law as a viable system of international governance. In waging full-fledged wars against sovereign nations due to the actions of nonstate actors, the norm of “Judge not that ye not be Judged” (Fuller, 2009,
p. 20) stands flagrantly violated.
In addition to this, preemptive wars stand in stark violation of what Fuller describes as “the internal morality of law.” In order to explicate the internal morality of law, he embarks on a hilarious, yet stimulating, tale surrounding the fictitious king Rex’s attempts at making laws. In doing so, he identifies the following eight ways to fail to make law (Fuller, 2009, pp. 33–39):

1. Failure to make rules at all
2. Failure to publicise the rules one is expected to observe
3. The abuse of retroactive legislation
4. Failure to make rules understandable
5. Enactment of contradictory rules
6. Rules requiring conduct beyond the powers of the affected party
7. Introducing such frequent changes in the rules that the subject cannot orient his actions by them
8. Failure of congruence between the rules announced and their actual administration I submit that in gauging the rocky relationship between established doctrines of international law and the emerging practice of preemptive wars, a substantial number of these eight techniques of failure to make law stand satisfied. For instance, the understanding of preemptive wars as a method of self-defense (as has been propagated under the Bush Doctrine) is clearly retroactive in nature. Established international law surrounding the concept of self-defense concretely advocates the position that such use of force on

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the mere apprehension of threat is patently illegal. In addition to this, the implementation of preemptive wars (if accepted as valid customary practice) as well as the doctrine of sovereignty on the global diaspora would be inherently contradictory.
Gauging from the practice among those nations that have launched preemptive wars in the recent past, there have been sustained attempts at imposing some form of democratic rule in nations that have never known anything but monarchy. To make things worse, positive results from such actions are expected overnight. If such practices ancillary to preemptive wars were to be accepted as valid international custom, then it would be fair to assume that these would constitute rules requiring conduct beyond the powers of the affected party (i.e., the domestic subjects of the occupied territory).
Finally, in blatantly disregarding the tenets of “sovereignty,” “sovereign equality,” and “the rule of reciprocity,” which have long been publicized as sacrosanct doctrines of international law, there appears to be a marked gulf between the rules announced and their actual administration.
I am therefore of the belief that a majority of the basic ingredients of good law as identified by Fuller have been tossed out of the equation by nation states looking to promote the practice of preemptive wars. I shall now propose a three-pronged criticism of preemptive wars, owing to the fact that they have been launched as a flawed interpretation of the precautionary principle.

Precautionary Principle: Testing the Three Legs of the Tripod
One of the major foreseeable problems with allowing preemptive wars on terror to continue unchecked lies in the way that international law is formed.
Customary international law forms the largest body of law at the international level, and its formation is dependent only on “state practice” and opinio juris, that is, the nation state’s solemn belief that its state practice was legally obligatory (Shaw, 2007).
It must be noted that the twin requirements of state practice and opinio juris have served international law well in the past, and the courts have proved more than competent in dealing with disputes involving international customs (The Lotus Case, 1927). Aggressive reform in the form of the precautionary principle being reinterpreted to support unilateral preemptive wars may, however, trigger a dangerous trend if the law of nations were to embrace such a knee-jerk reaction as customary practice.
I would like to reaffirm the belief that uprooting the global crime of terrorism requires a concerted effort at the international level; yet, as one shall discover through the course of this chapter, the methods being pursued seem flawed at various levels. I propose a three-pronged criticism of

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61

the preemptive wars that were launched under the so-called Bush Doctrine’s interpretation of the precautionary principle.
Economic Criticism
The precautionary principle, in essence, advocates that regulatory authorities should make efforts to protect against potential harms, even if their causal links are not clearly established and even if we are unsure if the harms will eventually come to fruition. This practice is to be followed until it can be ascertained that the potential harms are nonexistent or too minute to be of major concern (Sunstein, 2005).
A variety of critics state that the most basic condemnation of the precautionary principle lies in the fact that given our limited resources, humanity cannot afford to take extremely costly steps on extremely speculative risks
(Sunstein, 2005). Yet, excessively huge losses of life, property, and capital have been caused by various economic and military superpowers relying on limited evidence of threats to national security, as was seen in the trillion dollar war in Iraq. This only serves to reestablish this popular critique based on sound economic principles of “opportunity cost.”
The economic “notion” of opportunity cost primarily deals with the efficient use of scarce resources (Economist, 2010), which appears to have been grossly contravened by the inefficient use of resources in the preemptive wars launched under the guise of the Bush Doctrine’s interpretation of the precautionary principle.
Violation of Established Customs and Basic Tenets of International Law
I agree with the theoretical principle that a very real threat of terrorism needs to be weeded out; however, I find it necessary to submit that the practical implications of the use of precautionary principles in armed conflict scenarios suffer from an inherent defect: it seems to violate some of the most wellestablished customs and the most basic tenets of international law.
In justifying the use of the precautionary principle in armed conflict situations, proponents of the principle have always stood by their claims of acting in “self-defense.” The self-defense argument formed a part of the Bush
Doctrine applied after September 11, 2001, in the war against Afghanistan.
The United States actually found the support of the international community in their claim that the legitimate aims of self-defense incorporate the right to restore the security of the state after an armed conflict (Gardam,
2006).
However, the origins of the principle of self-defense under international law remain forgotten when such a stance is blindly supported based on

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hitherto unchecked feelings of sympathy. In fact, it was under the customary laws of war (jus ad bellum and jus in bello) that the legitimacy of self-defense can first be clearly ascertained. While jus ad bellum looks into the moral justification behind waging a war, jus in bello concerns itself with the methods employed in waging the war (Coady, 2002).
Jus ad bellum makes it essential to go into a war with a “just cause” and with the “right authority,” while jus in bello makes it mandatory on the warring party to ensure that the requirements of “proportionality,” “last resort,” and “reasonable prospects of success” are complied with (Coady,
2002).
In unilaterally carrying out a preemptive war against terror, a nation state may claim to comply with the requirement of just cause. Nevertheless,
Article 51 of the United Nations (UN) Charter read together with Chapter
VII makes for a sound interpretation of jus ad bellum (Gardam, 2006); and in acting “unilaterally,” a country not only bypasses the grundnorm of right authority under customary international law, but also violates its duty to comply with the provisions of the UN Charter. This is in gross violation of the doctrine of pacta sunt servanda (Shaw, 2007).
Even more disturbing is the fact that all three characteristics of jus in bello (now enshrined under the Geneva Conventions and the UN Charter) stand demolished in the case of preemptive wars on terror. First, a terrorist organization is a nonstate actor, and waging a full-fledged war on a nation state and its people in retaliation to a nonstate actor is clearly disproportionate. Moreover, past experience in such cases as Israel’s
1981 preemptive strike against the Iraqi nuclear reactor in Osirac, the
United Kingdom’s preemptive strikes against Argentina after retaking the
Falkland Islands, and the United States’ preemptive strikes in Afghanistan and Iraq has shown that along with being disproportionate, they are by no means compliant with the requirement of necessity (or last resort), as diplomatic dialogue was still an option in each of these cases (Gardam, 2006).
Finally, as has been stated before, with the international community still at loggerheads when it comes to arriving at a clear-cut definition for terrorism, there are no reasonable prospects of success in a war against an unknown entity.
Sovereign equality, the foundation stone on which the UN stands, is vehemently questioned by preemptive wars. Signatories to the UN Charter, that most sacred of treaties between civilized nation states, may choose to overlook Article 2(4) and 2(7) if they are given a free reign on the use of this principle (Danchin & Fischer, 2010). Acceptance of such a principle could lead to great powers using their economic and military might to “outlaw” smaller states for their own gains. While I agree with the honorable former
UN Secretary General Boutros Boutros Ghali that “the time of absolute and exclusive sovereignty … has passed” (Sinha, 2002, p. 106), I would have to

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63

contend that sovereign equality still remains and must continue to remain an inviolable principle.
In addition, in order to become a well-established custom, a principle generally needs to enjoy the widespread support of a majority of nations
(Shaw, 2007). This is something preemptive wars have always lacked.
Whether it was India’s self-defense argument while interfering with the situation in Bangladesh in 1971 (Sinha, 2002), Israel’s preemptive attack on an
Iraqi nuclear reactor (Gardam, 2006), or the most recent use of the argument to defend the U.S. offensive in Iraq (Gray, 2004), widespread support of preemptive wars has been hard to come by historically.
Tracing Historical Application of Precautionary Principle
While gaining an insight into the workings of the precautionary principle,
I noticed a trend that is common to almost all applications of this doctrine before efforts were made to incorporate it into the realm of armed conflict.
It is interesting to note that, historically, the precautionary principle has been used by countries to control their own domestic actions, even when the principle was made part of international treaties. For example, the Maastricht treaty on the European Union (EU) adopted in 1992 made it clear that states party to the EU would base enforcement on the precautionary principle with respect to provisions relating to the environment. Now, enforcement of such provisions relating to the environment is clearly within the territorial jurisdiction of the state. Other major instances of the use of such a principle have been with regard to dealing with the problems of climate change, experimenting with genetics, or working with nuclear technology (Sunstein, 2005).
I have no qualms in admitting that the precautionary principle has been used in international treaties in the past and has also formed a part of customary law between nations, especially in Europe.
However, in clear contravention to the customary practice of applying the precautionary principle where scientific uncertainty is cast over the implementation of a domestic policy, the juxtaposition of this principle on the customs relating to armed conflict is set to extend into the jurisdictions of other sovereign nation states; thereby compromising the foundations of international law, as enshrined under Article 2(4) of the UN Charter.
Herein lies the disjointedness of logic in applying the customarily peaceful and domestic use of the precautionary principle to a potentially violent and international scenario presented by armed conflicts.
Therefore, it is clear that on examining the use of the precautionary principle in armed conflicts countering terrorism, as suggested by the Bush
Doctrine, there are glaring flaws that not only appeal to one’s moral conscience, but may go to the extent of deeming preemptive wars on terror patently illegal under international law.

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Living Up to the Responsibility to Protect against Terror
I submit that there are many issues that need to be ironed out in order to ensure adequate protection against the threat posed by terrorism. Just like any major bone of contention at the international level, “definitional challenges” and
“problems of jurisdiction” remain the central issues when countering terrorism.
Definitional Challenges
Due to the lack of consensus among nations with respect to a singular, established definition of terrorism, the international community has witnessed a growing pessimism surrounding the whole exercise of countering the threat it presents.
Rosalyn Higgins, for example, exclaims that terrorism is a “term without any legal significance,” and has become a “convenient way of alluding to activities whether of States or Individuals, widely disapproved of and in which either the methods used are unlawful, or the targets protected, or both” (Ward, 2009, p. 18).
While preemptive wars on terror have bred such pessimism among authorities as high up as the former president of the International Court of
Justice, it is essential to try and defy the naysayers and find a solution to the problem at hand. The restrictions of existing legal responses, more specifically the restrictions of existing legal institutions, should in no way imply the need to abandon the cause of justice (Ward, 2009).
The crux of the issue concerning a definition for terrorism lies in the fact that the law governing nonstate actors and the employment of armed force has not kept up with those laws that govern nation states (The United Nations
Foundation, 2004).
To this, I feel that there lies a simple yet offbeat solution. The problem with a definition for terrorism seems to be more political than legal, since the Rome Statute has already incorporated most (if not all) of the components that comprise acts of terror under 11 constituents of the article dealing with “crimes against humanity.”* The problem lies in the nation states not being willing to compromise on their understanding of the term terrorism.
Therefore, I propose that it would be in the best interests of the international community to look for the enforcement of laws relating to terror under the preagreed norms of the Rome Statute. This is an idea that has also gained the approbation of the former UN secretary-general Kofi Annan and the former
UN High Commissioner for Human Rights, Mary Robinson (Ward, 2009).
Not only would such a move bypass the recurring problems of consensus, it would also increase the scope of the international community to act positively under the established norms of international criminal law.
* Article 7, The Rome Statute of the International Criminal Court.

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65

Problems of Jurisdiction
I submit that the international community would do well to look to the
International Criminal Court’s (ICC) “complementary jurisdiction” as a viable answer to the predicament surrounding individual criminal liability. In accepting the importance of domestic legal structures, the ICC implemented complementary jurisdiction as opposed to the controversial “universal jurisdiction.” This helps respect the important doctrine of sovereignty, while ensuring that the criminal responsible for perpetrating an international crime is brought to justice either by the domestic courts, or if need be, by the
ICC (The International Centre for Criminal Reform and Criminal Justice
Policy, 2008).
Major criticisms of the ICC have been with respect to the UN Security
Council’s mandate to bring forth cases pertaining to international crimes and the non-incorporation of certain crimes explicitly under the statute. However, the incorporation of complementary jurisdiction is widely regarded as a masterstroke, which has promoted the signing and ratification of the statute by a large number of nation states. Hence, I submit that individual criminal liability should be subject to complementary jurisdiction as espoused by the Rome Statute.
Having proposed viable solutions to the problems of definition and jurisdiction over terrorism, I further submit that the Responsibility to Protect
Doctrine would prove a much more preferable alternative to the use of preemptive wars in countering terrorism.
The International Commission on Intervention and State Sovereignty
(ICISS) presented a report entitled “The Responsibility to Protect” on the recommendation of the then UN secretary-general Kofi Annan with the aim of addressing the growing discontent among nations due to the lack of consensus on the limits of state sovereignty and the legitimacy of
“interventions” (The International Commission on Intervention and State
Sovereignty, 2001).
This report soon gained in importance, with its tenets accepted almost unanimously at the World Summit in 2005 and by the high-level panel set up by the secretary-general (The International Centre for Criminal Reform and
Criminal Justice Policy, 2008). This points to a change in the world’s perception of “collective security” as the Responsibility to Protect Doctrine. The doctrine establishes an inherent duty espoused within a state’s right to sovereignty, thereby making states liable to protect their own population (The
International Commission on Intervention and State Sovereignty, 2001).
Failing to adhere to this responsibility may, in turn, create an erga omnes obligation on the international community to intervene. However, military intervention is to be used only as a last resort (The International Centre for
Criminal Reform and Criminal Justice Policy, 2008).

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The reason I submit such a proposal is simple. The Responsibility to Protect
Doctrine, while accepting the importance of countering even legitimately perceived threats of terrorism, stresses on “the international community” having an erga omnes obligation. This negates the unilateral use of force, which comes in for great criticism owing to its ambiguous nature. Instead, it focuses on the far more acceptable alternative of collective security, as mandated under
Chapter VII of the UN Charter, read together with Article 2(7).*
Also, this doctrine places the first and foremost responsibility on the nation suspected of being unable to “protect” its population from terrorists (and the spread of violent terrorist ideology) within its boundaries. This shows a clearly demarcated respect for the basic international law tenets of sovereignty and sovereign equality.†
Finally, it is of utmost importance to note that in urging the international community to act in situations where terrorists are likely to thrive, and aiming at a new collective security regime, the Responsibility to Protect Doctrine lays down three stages of action: 1. The responsibility to prevent 2. The responsibility to react 3. The responsibility to rebuild
In doing so, the doctrine ensures that the international community functions in conformity with the inviolable foundation of international law: the rule of reciprocity. The rule of reciprocity, that is, treat the other as you would expect yourself to be treated, is probably the only norm that ensures the enforcement of international law; and in making provisions for prevention and rebuilding, the commission has looked to ensure progressive action and not merely a vicious armed conflict (The International Commission on Intervention and State
Sovereignty, 2001). This, I submit, is in furtherance of the rule of reciprocity.

Conclusion
On evaluating the means and measures at the international community’s disposal, I conclude that the world finds itself in a serious predicament due to various problems that are specific to terrorism. However, descending into a state of chaos and lawlessness is not the answer.
* The UN Charter, in making provisions for the sovereign rights of nation states, also leaves scope for exceptions where the purposes of the UN may be contravened. This is seen most prominently in Article 2(7) of the charter.
† As espoused under the UN Charter, the Rome Statute of the International Criminal
Court, the customary laws of war (jus ad bellum and jus in bello) as well as the treaty provisions of the four Geneva conventions and the additional protocols.

The Responsibility to Protect from Terror

67

Harold Koh succinctly describes the flaws in preemptive wars: so many lawyers ‘seem to have concluded that somehow, the destruction of four planes and three buildings has taken us back to a state of nature in which there are no laws or rules. The very spirit of law appears to have been abandoned; just as the terrorists hoped it would.’ (Ward, 2009, p. 11)

The three major flaws in preemptive wars that I have pointed out serve to place the Bush Doctrine in direct conflict with the most sacred of international law principles, such as sovereign equality, the rule of reciprocity, and the laws of war. By contrast, the Responsibility to Protect Doctrine, while respecting these basic grundnorms on which international law is based, furthers the cause of collective security and encourages the enforcement envisioned by the UN Charter; the one treaty to which every civilized nation state pledges allegiance. Through this chapter, I have also tried to elucidate the viable methods that international criminal law presents to countering definitional and jurisdictional problems posed by terrorism.
It is my firm belief that no matter how brilliant and ingenious the methods to counter terrorism are, the challenge the international community faces is one that requires a long-drawn and systematic approach to counter it. However, what the world cannot afford is to descend into a state of nature where laws, rules, and principles that have long been the focal point of affirmative action lose relevance. It is with this belief that I humbly submit that in furtherance of justice, equity, and good conscience, the international community must finally do away with hypocritical methods of countering terrorism and look to more inclusive and just means of countering this evil.

References
Best, G. (2001). War and Law since 1945. Oxford: Oxford University Press.
Bowden, B., Charlesworth, H., & Farall, J. (eds.) (2009). The Role of International Law in Rebuilding Societies after Conflict. Cambridge: Cambridge University Press.
Coady, C. A. J. (2002). The Ethics of Armed Humanitarian Intervention. Peaceworks no. 45. Washington, DC: United States Institute of Peace. Retrieved December
15, 2012, from http://www.usip.org/files/resources/pwks45.pdf.
Danchin, P. G., & Fischer, H. (eds.) (2010). United Nations Reform and the New
Collective Security. Cambridge: Cambridge University Press.
De Mulinen, F. (1987). Handbook on the Law of War for Armed Forces. Geneva:
International Committee of the Red Cross.
Economist (2010). Opportunity cost. Retrieved November 10, 2010, from http://www. economist.com/research/economics/alphabetic.cfm?letter=O. Fuller, L. L. (2009). The Morality of Law. Delhi: Universal Law Publishing Co.
Gardam, J. (2006). Necessity, Proportionality and the Use of Force by States. Cambridge:
Cambridge University Press.

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Gray, C. (2004). International Law and the Use of Force. Oxford: Oxford University
Press.
Shaw, M. (2007). International Law (5th edn). Cambridge: Cambridge University
Press.
Simpson, G. (2004). Great Powers and Outlaw States. Cambridge: Cambridge
University Press.
Sinha, M. K. (2002). Humanitarian Intervention by the United Nations. New Delhi:
Manak Publications.
Sunstein, C. R. (2005). Laws of Fear: Beyond the Precautionary Principle. Cambridge:
Cambridge University Press.
The International Centre for Criminal Reform and Criminal Justice Policy (2008). The
International Criminal Court: Manual for the Ratification and Implementation of the Rome Statute. Vancouver: The International Centre for Criminal Reform and Criminal Justice Policy.
The International Commission on Intervention and State Sovereignty (2001). The responsibility to protect. Ottawa: The International Development Research
Centre.
The Lotus Case (1927). Permanence Court of International Justice Series A, No. 10.
The Secretary General’s High Level Panel on Threats, Challenges and Change (2004).
A more secure world. New York: The United Nations Foundation.
Ward, I. (2009). Law, Text, Terror. Cambridge: Cambridge University Press.

Terrorist Financing in Southern Africa
African Commitment to
Combating Terrorism

4

VINESH BASDEO

Contents
Introduction 69
Definitions 70
Terrorist Threat, Vulnerabilities, and Capacity in Southern Africa
71
Terrorist Financing in Southern Africa
71
Southern Africa’s Obligations and Standards on Combating
Terrorist Financing
73
Conclusion and Recommendations
76
Domestification of International Instruments: Practical Considerations 76
Domestic Legislation
76
Banking Regulation and Supervision
77
“Know Your Customer”
77
“Fit and Proper”
79
Unusual Transaction Reporting
79
Record Keeping
80
Establishment of a Supervisory Institution
80
References 82

Introduction
The detection of terror funds is a complicated undertaking due to the size and nature of the transactions involved. Contrary to popular belief, planning and committing a terrorist atrocity do not require much money. If banks are used, the transactions tend to involve small amounts and an uncomplicated layering of funds. The much-cited 9/11 atrocities in the United States provide a classic example. An examination of the hijackers’ finances revealed that the individual transactions were small, falling below the reporting threshold for unusual cash transactions, and the funds involved added up to less than half a million U.S. dollars. The 1998 U.S. embassy bombings in
69

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East Africa were estimated to have amounted to an overall cost of less than
U.S.$10,000.
Anti-money laundering and combating the financing of terrorism
(AML/CFT) regimes have become the key tools in fighting terrorism in the post-9/11 world. The stakes, in what the Bush government in the United
States has called a “war on terrorism,” have been raised on account of the inevitable friction between the trappings of development on the one hand and the imperative to maintain security on the other. The global and transnational nature and reach of financial institutions, the greater role of intermediaries, and the uneven development, even divergence, of the world’s economic systems combine to magnify the challenges of combating money laundering and terrorist financing. Mindful of the differences in the banking and financial systems between the developed and developing worlds, this chapter provides an overview of the international instruments against terrorist financing, the evolving methods of detecting terrorist financing, and the practical problems that they are likely to encounter and, in some cases, have already encountered.
Are the antiterrorist financing mechanisms applied in the developed world appropriate and sufficient in southern Africa? The region comprises
Angola, Botswana, the Democratic Republic of Congo, Lesotho, Madagascar,
Malawi, Mauritius, Mozambique, Namibia, South Africa, Swaziland,
Tanzania, Zambia, and Zimbabwe. These countries’ human development index rankings suggest that they will accord priority to speeding up economic development. Considering the limited resources at their disposal, can they afford to implement antiterrorist financing measures?
The informal economic sectors account for a large number of financial and business transactions in southern African countries. With the probable exception of South Africa and Mauritius, the informal economic sectors are far more economically active than the formal sectors. Also known as the “parallel market,” “unrecorded trade,” or the “cash economy,” these sectors provide for the livelihoods of millions of Africans, although their magnitude is undetermined. Direct interaction between the informal sector and the formal financial institutions is insignificant. In Tanzania, which has a vibrant informal economy, a mere 6% of the population use banks for depository purposes, while only 4% of Malawians and less than 1% of Congolese and Angolans are
“banked.” Figures in other countries are just as low. This chapter is based on findings from field trips and literature studies.

Definitions
How is terrorist financing defined? The financing of terrorism is easily explained as “the financial support, in any form, of terrorism or of those

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who encourage, plan or engage in terrorism” (Botha, 2006). It is less simple to define “terrorism” because of the political, religious, and national implications that differ significantly from country to country. An all-encompassing and globally applicable definition of terrorism remains elusive, not least in
Africa. Legal drafters tend to avoid an outright definition of terrorism, but rather describe an “act of terror” or “terrorist activity.”

Terrorist Threat, Vulnerabilities, and Capacity in Southern Africa
Terrorist Financing in Southern Africa
Most financial experts agree that the financing of terrorism can occur in any country in the world, whether or not it has complex financial systems.
Since complex international transactions can be abused to facilitate terrorist financing and laundering of money, the different stages of money laundering
(placement, layering, and integration) may occur in a host of different countries (Schott, 2004).
Despite the region’s apparent vulnerability to terrorist financing, evidence of terrorist funding within or from southern Africa is scanty and mostly anecdotal. Southern Africa has very rich mineral resources, such as gold, diamonds, uranium, and gemstones. Following 9/11, there were allegations that diamonds and gold were being used to support the al-Qaeda terror network. Clandestine business arrangements involving the diamond trade date back to the days of the Cold War, when the superpowers used African nations as pawns in their geopolitical conflicts. They funneled weapons to what were termed “local proxies.” After the end of the Cold War, the superpowers lost interest in Africa, and arms and ammunition became less readily available through direct channels. It was at this stage that the trade in illicit diamonds escalated. Warring factions and even a few governments became reliant on the illegal trade in “conflict diamonds” and “blood diamonds.” Notably, the civil war in Angola was prolonged by both the covert support of the UN and the sale of diamonds by the National Union for the Total Independence of
Angola (UNITA) terrorist movement (Fletcher, 2003).
African militaries and paramilitary factions may have used diamonds, gold, and other mineral resources to finance their operations, but this would have been impossible without backing from multinational corporations, the international diamond industry, and retail outlets selling blood diamonds
(Fletcher, 2003). There is no evidence of a link between the diamond trade or illicit diamond smuggling and al-Qaeda or other terrorist groupings in southern Africa. Furthermore, the Kimberly Certification Process has

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established a system of warranties, guaranteeing that diamonds are mined and exported legally.
The tanzanite scandal spun by two Wall Street Journal reporters has become notorious for its adverse effects on the Tanzanian gemstone industry. The reporters suggested that al-Qaeda controlled a sizable chunk of the trade in the rare blue gemstone mined from a 13 km2 patch of graphite rock in northeastern Tanzania. Tanzanian investigators could find no evidence of such a connection. However, the publication of the allegations led major
U.S. retailers to drop tanzanite from their sale offerings (Tambulasi, 2006).
In February 2002, a Tanzanian delegation assured dealers at a major gem trade show in Tucson, Arizona, that no terrorist group was profiting from the sale of tanzanite. The Tucson Tanzanite Protocol originates from that meeting. Like the Kimberley Certification Process, it established a system of warranties guaranteeing that the gems were mined and exported legally. The
United Republic of Tanzania declared the mining site a controlled area where no visitors were allowed without a dealer’s license and other identification
(Tambulasi, 2006).
Allegations of the abuse of charities to fund terrorism turned out to be unfounded in a case in Malawi. In June 2003, U.S. and Malawian officials arrested five foreign nationals on suspicion of funneling funds to al-Qaeda through various Islamic charities and schools (Tambulasi, 2006). Not only were the arrest and deportation of the suspects in stark contravention of the country’s constitutional principles, but the allegations turned out to be false
(Hübschle, 2004). No evidence was found that money had been channeled to the terror network.
Another cause for concern is the region’s long, porous, and unpatrolled borders. Police forces from several member countries have encountered, and at times arrested, suspects attempting to export huge amounts of U.S. dollars from the region. The apprehension by Mozambican police of four
Pakistani nationals on suspicion of attempting to smuggle close to a quarter of a million U.S. dollars out of the country is a case in point (African
Terrorism Bulletin, 2005). A few months before 9/11, two South African nationals were arrested while attempting to cross the border between South
Africa and Swaziland with more than half a million U.S. dollars stuffed into their underwear. Investigators found that the couple had traveled from the South African port of Durban through Swaziland to neighboring
Mozambique more than 150 times over an 18-month period. Links emerged between the suspects, an exchange bureau in the Mozambican capital of
Maputo, and gold dealers in Dubai (Botha, 2006). Investigators speculated on a possible connection to al-Qaeda. Despite this suggested link, most cases that involve the illegal smuggling of currency across national borders are attempts to bypass or flout tough foreign exchange and currency regulations. Terrorist Financing in Southern Africa

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Alternative remittance systems take the form of nonbank institutions that transfer funds on behalf of clients through their own networks. Many of their transactions are paperless. Unregistered lenders in at least two countries move money across borders with no written record. Part of the attraction of this system lies in the fact that there is no proper trail to the source of the funds. It has been alleged that al-Qaeda has exploited the global hawala network by using it to transfer funds around the world. The proceeds of drug trafficking were channeled through the network operating between London, the
Punjab, and Kashmir to support Sikh and Kashmiri secessionists (Navias,
2002). As for southern Africa, hawala operations are said to take place in
Malawi, Mozambique, and Tanzania. It is more common for diaspora communities to collect money in the developed world and send it to their poorer brothers and sisters in Africa. Variants of hawala are used by the Zimbabwean diaspora in South Africa, Botswana, and Malawi. However, there has been no evidence of links to terrorism. Indeed, African countries are usually at the receiving, not the donating, end of remittances.
State sponsorship of terrorism in the region probably reached its high watermark during the apartheid era, when South Africa perpetrated acts of terrorism against its own citizens and those of neighboring countries such as
Namibia and Mozambique. It also sponsored proxy terrorist organizations in Angola, Namibia, and Mozambique over a long period of time. Currently, the Zimbabwean president Robert Mugabe and his associates are accused of using the state machinery to commit acts of terrorism against ordinary citizens (Botha, 2006).
As the international community, with its various protocols, starts cracking down on the trade in conflict diamonds and other mineral resources tainted with innocent blood, a window of opportunity may be opened for warlords and organized criminals to collude with terrorist elements in the largely unknown and unregulated terrain of the informal sector.
Southern Africa’s Obligations and Standards on Combating Terrorist Financing
The discourse of risk and globalization is key to the antiterrorist financing debate. Due to the global reach of the international financial network, all countries are vulnerable to money laundering. If terrorist financing follows the same routes as money laundering, it follows that countries are equally vulnerable to terrorist financing. The international community recognizes financial controls as essential antiterrorism tools. A series of measures at national, regional, and international levels have been introduced to deprive terrorists of the means to inflict serious damage. The main sources of international obligations in combating the financing of terrorism are the resolutions of the United Nations Security Council (UNSC), in particular Resolution

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1373 of 2001 (referred to here as “the Resolution”), the 1999 International
Convention for the Suppression of the Financing of Terrorism (referred to here as “the Convention”), and the nine Special Recommendations on
Terrorist Financing (referred to here as “the Special Recommendations”) issued by the Financial Action Task Force (FATF). The Convention, which opened for signature on December 9, 1999, stipulated the criminalization of direct involvement or complicity in the financing or collection of funds for terrorist activity. Article 2(1) requires states to create an offence when a “person by any means, directly or indirectly, unlawfully and willfully, provides or collects funds with the intention that they should be used” to commit an act that constitutes a terrorist offence (United Nations, 1999). In southern Africa, it has been ratified by seven states: Botswana, Lesotho, Malawi,
Mauritius, South Africa, Swaziland, and Tanzania. The Resolution, adopted in the immediate aftermath of the 9/11 attacks, imposed unprecedented legal obligations on UN member states to comply with measures designed to counter terrorist financing, travel, recruitment, and supply. To monitor the enforcement of these and other antiterrorism measures, the UNSC created the Counter Terrorism Committee. In March 2004, the committee became the Counter Terrorism Executive Directorate and it serves as a professional secretariat for the implementation of counterterrorism strategies.
In October 2001, the FATF adopted eight Special Recommendations on terrorist financing. These included a call for the ratification and implementation of relevant international instruments, the freezing and confiscation of suspected terrorist assets, the reporting of suspicious transactions, the evaluation of alternative remittances and wire transfers, and the revision of laws and regulations related to nonprofit and charity organizations. An additional measure adopted late in October 2004, called on states to stop cross-border movements of currency and monetary instruments related to terrorist financing and money laundering and to confiscate such funds. The recommendation stipulates a limit (U.S.$15,000) for undeclared cash that can be carried across borders.
Furthermore, it proposes control over cash couriers through the intervention of national authorities on the basis of intelligence or police information.
Considerable overlap is noticeable among the various obligations and standards. The Convention, the Resolution, and the Special Recommendations each deal with aspects of the freezing, seizure, and confiscation of terrorist assets. The Special Recommendations deal with four topics not covered by the
Resolution or the Convention: alternative remittance systems, wire transfers, nonprofit organizations, and cash couriers (IMF, 2003). These topics focus on financial systems other than the formalized banking and financial systems.
On the face of it, the four recommendations were informed by conclusions made in respect of the financial sources of al-Qaeda before 9/11. It remains an open question whether the FATF recommendations are pertinent to vulnerabilities within the cash economy or informal sectors in southern Africa.

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Of further relevance to the region are antiterrorist financing measures passed in the United States. On September 14, 2001, U.S. president George
W. Bush issued Executive Order 13224 entitled “Blocking Property and
Prohibiting Transactions with Persons who Commit, Threaten to Commit, or Support Terrorism,” which expanded the U.S. list of designated terrorist organizations. Most importantly, the order acknowledges the global reach of terrorists by imposing extraterritorial financial sanctions against all “foreign persons that support or otherwise associate with these foreign terrorists”
(U.S. Department of State, 2001).
Another beacon in the U.S. war on terrorist financing is the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (also known as the USA
PATRIOT Act). Major AML/CFT provisions that have a bearing on foreign jurisdictions include the following:
• U.S. banks are prohibited from opening correspondent accounts for foreign banks with no physical presence, no employees, or no regulatory supervision in the United States.
• Informal money transmitting businesses have to be licensed and report suspicious transactions.
Antiterror measures pose significant dilemmas for developing countries in southern Africa. They are under pressure to either comply with the international obligations or be blacklisted as non-cooperative and risk economic sanctions. There is no evidence that terrorism is considered a significant threat to many of these countries. There is, in consequence, no obvious benefit in adopting the measures stipulated in the antiterrorist financing instruments. Tambulasi (2006) suggests that transnational regulation involves the
“persuasion” of “formally independent nation states to adopt similar measures even though there may be no obvious benefit to them in doing so.”
Terrorist networks and organized criminals threatening the United States and other Western powers may be substantially different from those threatening countries in the developing world, so the “one-size-fits-all” approach may well be inappropriate.
The sentiments of an implicit “persuasion” have been echoed by political decision makers, law enforcement officials, and other bureaucrats assigned the task of implementing the AML/CFT regimes in the region. The political will is low and the perception of bullying is strong in the region.
The World Bank and other international financial institutions (IFIs) have assumed a critical role in persuading developing countries to toe the line. Representing the most influential financial institutions in the world, the World Bank, the International Monetary Fund (IMF), and other IFIs control many billions of dollars in resources, including development aid and

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foreign direct investments, which are allocated for lending and capital projects around the world. These institutions each have multiple correspondent banking relationships and deposit funds for use in developing or recipient countries in central banks and commercial banks (Schott, 2004). The IFIs declare that they will only do business with commercial banks and other financial institutions that comply with anti-money laundering standards.
This, of course, puts international banks and commercial banks with a large turnover at an unfair advantage. A small, local bank in Malawi, Namibia, or anywhere else in the region will struggle to comply with international standards, while its competitor with international ties, or the subsidiary of an international bank, has the capacity and financial backing to do so.
Increasingly, smaller and local banks are stigmatized as financial backers to terror financiers, warlords, corrupt bureaucrats, and organized criminals.
Noteworthy in the context of the southern African region is the stipulation in the USA PATRIOT Act that U.S. banks are prohibited from opening correspondent accounts for foreign banks with no physical presence, no employees, or no regulatory supervision in the United States. This means that any financial institution wishing to enter into a trade or banking agreement with a U.S. bank has to open an office in a U.S. territory. For small, local banks in southern Africa, such an obligation presents a serious financial burden. This and other AML/CFT obligations undermine the long-term goal of conducting business with the United States. Small banks struggle to finance and staff such offices. Again, big, international banks or financial institutions command an unfair advantage. Perhaps the question is not how one complies with the international obligations, but who stands to benefit from the AML/CFT regime.

Conclusion and Recommendations
Domestification of International Instruments:
Practical Considerations
International bodies such as the UN and the FATF recommend some basic steps toward achieving a reliable AML/CFT regime. It should be noted that these steps, implicit in the Resolution, the Convention, and the Special
Recommendations, use as a point of departure the formalized banking and financial sectors of the developed world.
Domestic Legislation
The three key instruments on terrorist financing suggest that domestic legislation should provide the general legal framework and establish the

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obligations of financial institutions and other providers of financial services.
Such legislation should define and criminalize money laundering and terrorist financing, setting penalties. It should cover a wide set of predicate crimes and also define the responsibilities and powers of the various government agencies involved. Commercial banks should be obliged to be especially vigilant, given their role in the payment system (IMF, 2003).
Within the region, Mauritius and South Africa have domestic laws that specifically address terrorist financing. Mauritius lists as key laws in the fight against terrorist financing the International Convention for the Suppression of the Financing of Terrorism Act of 2003 and the Anti-Money Laundering
Act of 2002. The main statutes dealing with terrorist financing in South
Africa are the Prevention of Organised Crime Act of 1998 (POCA) and the
Financial Intelligence Centre Act of 2001 (FICA). With the enactment of the Protection of Constitutional Democracy against Terrorism and Related
Activities Act of 2004, the POCA and FICA were amended to accommodate measures against terrorist financing (Hübschle, 2006: 110–111). The
Malawian parliament passed the Money Laundering, Proceeds of Serious
Crime and Terrorist Financing Act of 2005 in August 2006 after many months of vigorous debate.
As for the rest of the region, most countries are at different stages of developing or implementing anti-money laundering laws. Most are aware that new enforcement agencies and other institutions not only constitute an additional financial burden, but also raise issues around capacity, training, and maintenance. Some officials have suggested that anti-money laundering laws are drafted to satisfy minimum international obligations, but they pay little more than lip service to the international instruments, as their implementation is put on the back burner.
Banking Regulation and Supervision
For primary legislation to be operational, banking regulations and supervision need to be implemented. Ideally, financial institutions should be obliged to institute procedures to avoid dealing with criminal and terrorist elements. “Know Your Customer”
Banks and other financial institutions should verify the identity and legitimacy of clients, especially new clients and those acting on behalf of others. The
“know your customer” (KYC) obligation may involve elaborate background checks. The KYC obligation poses significant practical challenges to commercial banks in the region. For those banks that can tap into the know-how

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and financial networks of their foreign parent companies, the KYC obligation, on the face of it, can be implemented with relative ease. However, elaborate background checks involve confirmation of identity and proof of residence, traditionally in the form of utility bills (electricity, water, telephone, etc.), and at this point, no matter how much foreign cash and expertise are available, all banks doing business in the developing countries of southern Africa face certain challenges in this regard. The following are especially pertinent:
•
•
•
•
•
•

Absence of systems of national identification
Absence of birth certificates
Minimal use of passports
Minimal availability of driving licenses as a means of identification
Lack of employment credentials or “job cards”
Unfixed or unmarked residential addresses in informal settlements, undemarcated townships and rural areas (a surprisingly large number of African metropoles and cities only have physical addresses in the city center)
• Low levels of access to utilities and hence to utility bills
When the Basel Committee on Banking Supervision wrote the Basel
Statement of Principles and introduced the concept of KYC as a fundamental principle of banking supervision in 1988 (Schott, 2004), little thought appears to have been given to the limitations, in a different setting, of standards that may be viable in the developed world. However, central banks, bankers’ associations, and other stakeholders in the region have come up with creative and innovative approaches to circumvent the practical challenges of adhering to
KYC obligations. In Tanzania, a bank can carry out a KYC on a customer by contacting two referees. Of great significance are letters of introduction by local authorities. The basic unit of civil administration in Tanzania is a cell, which consists of 10 houses or separate units, and the leader of such a cell may provide proof of identity. But these leaders, who are in a powerful position, are not always unbiased.
The KYC obligation raises another dilemma. Compliance officers from a number of southern African countries have argued that although KYC may lead to compliance with international obligations, in reality it discourages the vast majority of “unbanked” citizens of the region from entering the banking system. Uncomfortable questions and requests for documentation may put off prospective customers. Banks may do business with international investors and multinational corporations, but the people sleep with their money under the mattress.
Of further concern in South Africa is that banks are reluctant to allow asylum seekers and refugees to open accounts. Upon arrival, asylum

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seekers are furnished with an asylum-seeker permit until they receive official refugee status. The processing of applications can take months, and the backlog is huge. In the meantime, banks will not allow asylum seekers to open bank accounts, as the temporary permits do not provide a 13-digit identity number as required by the FICA regulations. Increasingly, criminals have targeted asylum seekers (especially the Somali community), as they are known to keep their money on their business premises or in their homes (Botha, 2006).
“Fit and Proper”
The Convention calls for measures to ensure that criminals and terrorists do not set up or gain control of financial institutions. The question is how to do this effectively in a free market. Shareholders and senior managers in financial institutions should demonstrate that they are fit and proper to hold these positions of control and oversight. This applies to the initial licensing stage, but regulators should also scrutinize management turnover and changes in shareholdings. The Finance Bank in Malawi provides an excellent example of what can happen if no fit and proper test of senior managers is conducted. The Finance
Bank’s banking license was revoked on January 27, 2006, after several acts of operational malpractice and noncompliance with banking regulations were discovered. More specifically, senior managers had not complied with foreign exchange regulations and had created “ghost accounts,” apparently in order to externalize foreign currency. Furthermore, the branch manager in Lilongwe had failed to provide the Anti-Corruption Bureau with information on clients who contravened the foreign currency transaction regulations. Corrupt government officials were found to have hidden their ill-gotten gains in accounts at the Finance Bank, while 12 bank employees had created an intricate net of transactions that effectively drained the bank’s coffers of close to U.S.$200,000 (Tambulasi, 2006).
Unusual Transaction Reporting
Financial institutions are advised to establish systems of identifying and reporting unusual transactions. Bank officials have pointed out that what constitutes an unusual or suspicious transaction in one country may be perfectly “normal” in another. Bank regulators may not bat an eyelid if an amount of U.S.$20,000 is transferred in a developed country, but the same mount transferred in a developing nation could constitute an unusually large amount. The unusual transaction threshold may be linked to the KYC obligation. This would be unusual, for example, if a civil servant transferred amounts in excess of his/her monthly income.

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Record Keeping
Linked to KYC and the reporting of unusual transactions, is the need for adequate record keeping. When a suspicious transaction is investigated, a financial institution needs to be able to help authorities establish an audit trail going as far back as 5 years. The laundering of funds controlled by General
Sani Abacha of Nigeria demonstrated the need for financial institutions to focus more attention on the “layering stage,” where laundered funds or terror finances are already in the system and the audit trail is disguised, often with numerous transactions used to move the funds around (Botha, 2006).
An anti-money laundering officer for one of the big banks in Tanzania cynically remarked that even though banks were keeping records of transactions, tracing them was still problematic. Finding the record of a specific transaction in a storeroom was like looking for a needle in a haystack.
Paperless and computerized transaction record keeping is not that well established. In this regard, local subsidiaries of banks and financial institutions in developed countries may have an edge over smaller indigenous banks.
Establishment of a Supervisory Institution
Linked with banking regulation and supervision is the need for government to establish a supervisory institution to ensure that commercial enterprises comply with the laws and regulations and that suspected cases of money laundering or terrorist financing can be monitored. Typically, such financial sector regulators are responsible for supervising AML/CTF procedures followed by financial institutions and for checking that their managers, owners, and shareholders meet the fit and proper test. Many countries have also set up specialized FIUs.
The mandate of FIUs includes investigating, analyzing, and passing on to the appropriate authorities financial and related information concerning suspected proceeds of crime or terror funds. A key component of an FIU’s mandate is to share information about suspicious transactions across borders. The Egmont Group, set up in 1995, serves as an association of FIUs and promotes best practice among its members. International cooperation between FIUs in terrorist financing or money laundering cases is encouraged and based on mutual trust. Part of the mandate of FIUs is to ensure that national legal standards and privacy laws are not formulated in a way that inhibits the exchange of information. Thus, FIUs should be able to exchange information freely on the basis of reciprocity or mutual agreement and consistent with procedures understood by the requested and requesting parties.
Here again, the recommendation raises concerns for some countries. It is not only a costly exercise to establish an FIU, but also competent staff has

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to be recruited and trained. Mauritius, South Africa, and Zimbabwe are the only countries in the region with FIUs in place.
The Financial Intelligence Bill before the Namibian parliament will, if passed, allow the central bank, the Bank of Namibia, to collect, access, and analyze financial intelligence data and to freeze and seize the assets of suspicious institutions under investigation. This initiative exemplifies a bone of contention as regards the independence of FIUs. Ideally, an FIU should be a stand-alone institution, because links with the regulator (the central bank), a law enforcement agency (a general or specialized police agency), or the line ministry (finance) may constitute a conflict of interests. Yet, such a conflict of interests may be preferable to not creating an FIU at all. Considering the financial and developmental status of most countries in the region, this may be the lesser of two evils. At least the central bank, the police agency, or the line ministry may be able to provide financial resources, equipment, staff, and institutional memory to undertake financial intelligence work.
The FIU in Mauritius and South Africa’s Financial Intelligence Centre
(FIC) have received thousands of suspicious transaction reports. Data on how many of the reported cases have led to successful prosecutions are not available. Furthermore, it remains unknown whether there have been cases involving terrorist financing, as there have been no prosecutions for financing terrorism.
In addition to the reality that terrorism presents a direct and indirect threat to international, regional, national, and human security, international and regional bodies, with the assistance of civil society, also have an additional responsibility. This includes preventing draconian counterterrorism policies and legislation from provoking and legitimizing terrorism. In all political systems, whether liberal democracies or totalitarian regimes, force, coercion, and repression are double-edged swords. The prevailing challenge to all governments will therefore be to balance the protection of state security with the equally vital safeguarding of basic human rights. In addition to this, the protection of the right to free association and speech reflected in the legitimate dissent that preceded the formation of organizations, whether influenced by ideology, religion, or culture, is of prime importance. Governments need to be able to distinguish between political opposition and terrorism as a criminal act to be dealt with in a criminal court.
Excessive counterterrorism legislation and initiatives in themselves directly threaten democracy, particularly as they often criminalize and punish legitimate dissent, which might have the following two consequences:
(1) forcing individuals and organizations still within the framework of legitimate dissent to resort to illegitimate violence (including terrorism) and
(2) limiting the development of a healthy political system that allows political opposition. In other words, the challenge to governments and security forces is not to gather information in the name of counterintelligence operations

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only to protect the political order of the day; rather, they should focus on the primary role of intelligence and security agencies, which is to gather information on all activities that undermine human security.
What is self-evident is that without a functioning, nationally recognized central government, failed and weak African states provide a safe haven for domestic and international terrorism alike. No military operation can make these countries safe if it is not linked with a process ultimately aimed at reconciliation and reconstruction of a functioning state with a government in control of its territory, including its land, sea, and aerial borders.
Above all, strong engagement to bring internal peace and to reconstruct failed, weak, and undemocratic states is the strategic challenge facing Africa and the international community. Civil society has a responsibility to assist our governments and their security forces to implement these initiatives.
Information sharing can be a proactive strategy in building trust between governments, their security forces, and their citizens.

References
African Terrorism Bulletin. (2005). Mozambique detains Pakistani nationals with huge stash of cash. 4 (September). Pretoria: Institute for Security Studies.
Retrieved on December 6, 2006, from http://www.iss.co.za/pubs/Newsletters/
Terrorism/0405.htm.
Botha, A. (2006). Africa’s vulnerability to terrorism and its ability to combat it. In
A. Botha & W. Okumo (eds), Understanding Terrorism in Africa: In Search of an
African Voice. Seminar report, Institute for Strategic Studies. Pretoria: Institute for Security Studies.
Fletcher, B. (2003). Deadly trade: Diamonds are an African’s worst friend. Charleston
Gazette. February 16.
Hübschle, A. (2004). Unholy alliance. Assessing the links between organised criminals and terrorists in Southern Africa. ISS Occasional Paper 93, Pretoria: Institute for
Security Studies.
Navias, M. S. (2002). Finance warfare as a response to international terrorism.
The Political Quarterly, 73(s1), 57–79.
Schott, P. A. (2004). Reference guide to anti-money laundering and combating the financing of terrorism (2nd edn). Washington, DC: World Bank [online].
Retrieved on July 26, 2010 from http://www1.worldbank.org.
Tambulasi, R. (2006). Research report on the vulnerabilities of NGO’s, charities and schools to terrorist financing in Malawi. Unpublished.
United Nations. (1999). International Convention for the Suppression of the
Financing of Terrorism, United Nations General Assembly Resolution 54/109,
December 9. Retrieved on December 6, 2006, from http://daccessdds.un.org/ doc/UNDOC/GEN/N00/251/28/PDF/N0025128.pdf?OpenElement. U.S. Department of State. (2001). Patterns of global terrorism. U.S. Department of
State. http://www.state.gov/j/ct/rls/crt/2001/html/index.htm

Cyber Crimes and
Victimization

II

Use of Electronic
Evidence in South
African Law
Embracing Technical
Change

5

FAWZIA CASSIM

Contents
Introduction 85
Definition of Electronic Discovery
86
Problems with Electronic Discovery
86
Relevant Legislation
87
Recent Case Law Addressing Admissibility of Electronic Evidence
88
Shifting the Costs of Electronic Discovery
90
Role of European Convention on Cybercrime: ETS No. 185
90
Way Forward: Conclusions and Recommendations
90
References 91

Introduction
A common feature of the virtual age that we live in is the use of written communication between individuals by way of e-mails, text messages, and other written communication media rather than by way of conventional letters
(Eversheds International, 2011). This has resulted in numerous documents being created, transmitted, and signed electronically. In the context of litigation, the existence of an electronic document such as an e-mail in a party’s possession may well be relevant to the outcome of the case. The purpose of discovery is to ascertain from other parties to the action what information or documentation is in existence that might be relevant to the action. This enables a party to properly prepare for trial and prevents the party from being taken by surprise at the trial. The question thus arises whether parties have discovered relevant electronic documents in their possession. Such failure may be harmful to the other party’s case.

85

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Documentary evidence is required to be relevant and admissible, its authenticity must be proved, and the original document must be produced
(see inter alia, Seccombe v. AG [1919] TPD 270 at 277; S v. Mpumlo [1986] 3
SA 485 (E) at 489). However, exceptions to this rule arise in the following instances: where the original document is destroyed, it cannot be located, or its production is illegal and secondary evidence is thus admissible (see inter alia, Ex parte Ntuli [1970] 2 SA 278 (W)). This has now changed as a result of the Electronic Communications and Transactions Act 25 of 2002 (“ECT”), which addresses electronic discovery. South African e-discovery obligations arise from the ECT read together with the Uniform Rules of Court (which were promulgated during 1965). Section 15 of the ECT creates a rebuttable presumption that data messages and printouts are admissible in evidence.

Definition of Electronic Discovery
Electronic discovery refers to the discovery of electronically stored information. This includes e-mail, web pages, word processing files, computer databases, and any information that is stored on a computer or other electronic device. Electronically stored information is said to be electronic if it exists in a medium that can be read through the use of computers or other digital devices. Such media may include cache memory, magnetic disks such as
DVDs or CDs, and magnetic tapes. On the other hand, paper discovery refers to the discovery of writings on paper (printed words) that can be read without the aid of electronic devices.
According to rule 35(15) of the Uniform Rules of Court, a tape recording includes a sound track, film, magnetic tape, record, or any other material on which visual images, sound, or other information can be recorded (Rules of the High Court of South Africa, 1965; Faris & Hurter, 2010). This definition was found to be wide enough to include all electronically stored information in the case of Le Roux v. The Honourable Magistrate Mr Viana (Case 494/06, dated November 30, 2007). However, this decision does not state further whether such electronically stored information must be in readable format or not.

Problems with Electronic Discovery
Electronic discovery can be regarded as a complex and expensive exercise because of the following factors:
• The huge volume and number of messages.
• The difficulty of erasing electronic data from hard drives.

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• The problem with metadata (information that is contained in electronic documents). For example, e-mail data elements include the dates the mail was sent, received, replied to, or forwarded.
• The contents are forever changing. The metadata elements also change each time a spreadsheet or word-processed document is copied. The question of which is the best “document” for discovery creates problems for discovery.
• Electronic data cannot be separated from its environment. To illustrate this, information in a database requires an application for interpretation, so an application is necessary.
• Upgrades and technological changes may also impact on the recovery of data. The necessary personnel or technological infrastructure may not be available when the data need to be accessed.
• Different locations of electronic data: while documents can be boxed or stored in filing cabinets, electronically stored information can reside in many locations, such as desktop hard drives, laptop computers, network servers, floppy disks, CDs, and backup tapes, and have similar copies.
• It could also be an expensive exercise to engage the services of computer forensic experts (Cilliers et al., 2009).

Relevant Legislation
The ineffectiveness of the South African common law to combat cybercrime led to the promulgation of the ECT (Burchell, 2002). The advent of the ECT has impacted on electronic discovery. The traditional requirement for documentary evidence was that it must be relevant and admissible, its authenticity must be proved, and the original document must be produced (Seccombe
v. AG [1919] TPD 270 at 277; S v. Mpumlo [1986] 3 SA 485 (E) at 489). The admissibility of a printout in court in terms of the old Computer Evidence
Act 57 of 1983 provided much legal uncertainty (Snail, 2009). This has now changed as a result of the ECT. Section 15 of the ECT provides that the rules of evidence must not be used to deny admissibility of data messages on the ground that it is not in its original form. The ECT thus creates a rebuttable presumption that data messages and or printouts are admissible in evidence.
This is commendable.
Section 1 of the ECT defines a data message as data generated, sent, received, or stored by electronic means (Snail, 2009). A data message will not infringe the best evidence rule on the ground that it is not in its original form
(Snail, 2009). The question arises as to what constitutes best evidence. The argument has been advanced that a data message produced in the form that it was originally created retains the metadata and would therefore constitute

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the best evidence of that message (Hughes, 2008). Hughes maintains that the
“integrity” of a data message or electronic document (as required by section 14 of the ECT) can only be assessed by having regard to its metadata (Hughes,
2008). It thus appears that lawyers may insist on the production of an electronic copy containing the document metadata during court proceedings.
Therefore, it is suggested that documents should be produced in their original form to ensure their integrity (Hughes, 2008).
The case of SB Jafta v. Ezemvelo KZN Wildlife (Case D204/07) concerned an e-mail that was used to accept an employment contract. This e-mail was regarded as conclusive proof of the acceptance of the employment contract.
In S v. Motata (Johannesburg District Court, Case 63/968/07—now concluded), electronic information, that is, data in the form of images and sound from a cell phone, was admitted into evidence in a trial within a trial. In this case, Judge Motata allegedly drove into a wall of a private home while under the influence of liquor. The owner of the home made an audio recording of the accident on his cell phone. The judge had challenged the admissibility of cell phone recordings in his trial for driving under the influence. The recording was copied onto a computer and the issue arose whether this constituted real or documentary evidence. The judge was subsequently found guilty of drunken driving and fined R20,000 or 12 months’ imprisonment (news24,
2011; Motata v. Nair NO and Another [2009] 1 SACR 263 (T)).

Recent Case Law Addressing Admissibility of Electronic Evidence
In Ndlovu v. Minister of Correctional Services and Another ([2006] 4 All SA
165 (W)), the court had to consider inter alia whether a computer printout, which was a copy, complied with the best evidence rule and whether it could not be admitted into evidence unless properly proved. The court found that the plaintiff’s failure to object to the evidence during the trial precluded him from relying on the best evidence rule during argument. The plaintiff had also referred extensively to the printout during evidence without objecting, with the result that this amounted to a tacit waiver of the best evidence principle. The court also found that as the printout was generated by a computer, it was governed by the ECT. Thus, it examined section 15 of the ECT, and found that section 15(1)(a) prohibits the exclusion from evidence of a data message on the mere grounds that it was generated by a computer and not by a natural person, and section 15(1)(b) on the mere grounds that it is not in its original form. However, the printout was admitted into evidence not in terms of section 15 of the ECT, but rather in terms of the court’s statutory discretion to admit hearsay evidence in terms of the Law of Evidence Amendment Act
45 of 1988. This case has been criticized for its failure to provide clarity on

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the impact of section 15 of the ECT on the authenticity rule and the hearsay rule (Collier, 2005).
In S v. Ndiki and Others ([2008] 2 SACR 252), the state sought to introduce certain documentary evidence consisting of computer-generated printouts, designated as exhibits D1 to D9, during the course of a criminal trial. The court found that if a computer printout contained a statement of which an individual had personal knowledge and which was stored in the computer’s memory, then its use in evidence would depend on the credibility of an identifiable individual and this would therefore constitute hearsay. On the other hand, where the probative value of a statement in a printout depended on the “credibility” of the computer, then section 3 of the Law of Evidence Amendment Act 45 of
1988 would not apply. Section 3 gives the court a discretion to admit hearsay evidence if it is in the interests of justice. However, the court found that because certain individuals had signed exhibits D1 to D4, the computer had been used as a tool to create the relevant documentation. Therefore, these documents constituted hearsay. Exhibits D5 to D9 had been created without human intervention and therefore such evidence constituted real evidence.
The admissibility of this evidence depended on the reliability and accuracy of the computer and its operating systems and processes. The duty to prove such accuracy and reliability was found to rest with the state. The court’s progressive approach in regarding part of the computer-based evidence as real evidence has been lauded (Van der Merwe et al., 2008). It is submitted that I agree with the learned professor’s comments.
It is encouraging to note that judges are admitting electronic evidence in recent criminal cases. In one case (not yet reported), cell phone evidence was allowed in a murder trial (Legalbrief, 2011), whereas in another case, the presiding officer instructed an investigating officer to find crucial CCTV camera footage in a case involving claims of police brutality (Legalbrief, 2011). In another high-profile case, Sheryl Cwele, the wife of State Security Minister
Siyabonga Cwele, along with her co-accused, a Nigerian, were both found guilty of one count of dealing in dangerous dependence-creating drugs or conspiring to do so and two counts of incitement of dealing in dangerous dependence-creating drugs. The charges related to allegedly recruiting one
Tessa Beetge, who is presently serving an 8-year prison sentence in Brazil for trafficking cocaine, and trying to enlist another state witness to commit a similar crime. The outcome of the trial depended on the state’s submission of intercepted text messages and phone calls between the accused and Beetge
(Legalbrief, 2011).
The above discussion demonstrates that our courts are following a progressive approach in e-discovery cases. The discussion demonstrates that courts are admitting electronic evidence more readily. Nevertheless, it is submitted that more clear and concise judicial guidance on the admissibility and evidential weight of electronic evidence is required in future cases.

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Shifting the Costs of Electronic Discovery
The traditional position is that the costs of discovery and the costs relating to the production of documents for inspection and their production at the trial are initially borne by the party making discovery (Coumbe, 2004). However, in the United States and New Zealand, cost shifting to the requesting party is considered when an electronic discovery imposes an undue burden or expense on the producing party. The following factors are considered: the purpose of the request (whether it is specifically tailored to discover relevant information), the availability of such information from other sources, the total cost of production versus the amount in dispute, the total cost of production versus the resources available to each party, and the relative ability of each party to control costs and the related incentive (Coumbe, 2004).
The question arises whether South African courts should consider these factors in the exercise of their discretion in terms of rule 35(7) of the Uniform
Rules. It has been found that circumstances should dictate the exercise of the court’s discretion. The courts should either refuse to order discovery if the request is not specifically tailored to discover relevant information, or shift the cost to the requesting party when an electronic discovery imposes an undue burden or expense on the producing party (Rubico (Pty) Ltd v. Paywell
(Pty) Ltd [2001] 2 All SA 671 (W)). This appears to be a fair approach to follow in future cases.

Role of European Convention on Cybercrime: ETS No. 185
South Africa has adopted the European Convention on Cybercrime (ECCC) but has not ratified it. South Africa is the only African country to have done so. The treaty contains important provisions to facilitate criminal investigations or proceedings and to assist law enforcement and the judiciary in their fight against transborder cybercrime. The main objective of the treaty is to pursue a common criminal policy aimed at the protection of society against cybercrime, by adopting appropriate legislation and fostering international cooperation. States are encouraged to adopt appropriate legal measures to prevent attacks on computer networks and electronic information. Therefore,
South Africa needs to ratify the cybercrime treaty to avoid becoming an easy target for international cybercrime.

Way Forward: Conclusions and Recommendations
Personal computers are an important source of evidence. The differences that exist between the mechanisms of physical and digital evidence collection

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compound the problems of discovery, for example, home searches are conducted by physical entry while computer searches occur offsite on a government computer that stores a copy of the suspect’s hard drive (Kerr, 2005/2006). Although an adequate legal framework is important for effective action against cyber criminals, such action can be frustrated by antiquated procedural laws that only authorize the issuance of warrants to search for and seize tangible evidence. This omission has serious consequences for investigators because the prosecution of cybercrime usually requires the collection and analysis of intangible evidence. Therefore, it is advocated that countries must evaluate their procedural laws governing evidence and amend them (Goodman & Brenner,
2002). Brenner also suggests that countries should evaluate their procedural laws governing the collection and analysis of evidence to include intangible evidence that is covered by cybercrime as opposed to traditional crimes that deal with tangible evidence (Brenner & Clarke, 2005). However, courts also need to understand the technical characteristics of the Internet and develop well-settled precedents to address the question of electronic discovery and the admission of electronic evidence in an intelligent and logical manner.
As we move further into the digital age, lawyers must adapt and keep abreast with changing technology. To this end, lawyers must also change the way they practice law. However, they must be mindful of maintaining a balance between the interests of effective law enforcement and fundamental human rights. South
Africa needs to take the following steps to combat the growing scourge of cybercrime in the country and improve electronic discovery measures:
• Introduce specialized law enforcement and training skills.
• Improve personnel and technical infrastructure. To this end, the police and the judiciary should also become more cybercrime savvy.
• Improve computer forensic capabilities through the appointment of competent and experienced staff.
• Build regional partnerships and enter into multilateral agreements with other countries to counteract Internet crime and protect computer networks.
• Initiate support and training within government, with the help of the private sector and international organizations.
• Ratify and accede to the ECCC as the ECCC is open to accession by nonmember states.

References
Brenner, S., & Clarke, L. L. (2005). Distributing security: Preventing cyber crime.
John Marshall Journal of Computer and Information Law, 23, 659–709.
Burchell, J. (2002). Criminal justice at the crossroads. South African Law Journal, 119,
579–585.

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Cilliers, A. C., Loots, C., & Nel, H. C. (2009). Discovery, inspection and production of documents. In: Herbstein & Van Winsen: The Civil Practice of the High Courts of South Africa and the Supreme Court of Appeal of South Africa (5th edn, Vols 1 and 2). Juta.
Collier, D. (2005). Evidently not so simple: Producing computer print-outs in court.
Juta’s Business Law, 13(1), 6–9.
Coumbe, G. (2004). E-Discovery. The New Zealand Law Journal, 130–134.
Council of Europe Convention on Cyber Crime ETS No 185. Retrieved on June 30,
2011 from http://conventions.coe.int/Treaty/EN?treaties/html/185.htm.
Electronic Communications and Transactions Act 25 of 2002.
Eversheds International. (2011). Discovery in the Digital Age: South Africa. Retrieved on June 30, 2011 from http://m.hg.ord/law-articles/area-litigation.
Faris, J., & Hurter, E. (2010). The Student Handbook for Civil Procedure. Durban: Lexis
Nexis Butterworths.
Goodman, M. D., & Brenner, S. (2002). The emerging consensus on criminal conduct in cyberspace. International Journal of Law and Information Technology, 10(2),
139–223.
Hughes, M. (2008). Electronic litigation. Paper presented at Cyber Crime Africa 2008
Summit, November 13, 2008, Monte Casino, Johannesburg.
Kerr, O. S. (2005/2006). Searches and seizures in a digital world. Harvard Law Review,
119(1–3), 532–585.
Legalbrief. (2011). Cyberfocus [online]. Retrieved on May 11, 2011 from http://www. [e-mail]. news24. (2011). Judge loses appeal [online]. Retrieved on June 29, 2011, from http:// www.news24.com/South Africa/news/Judge-Motata.
Snail, S. (2009). Cyber crime in South Africa: Hacking, cracking, and other unlawful online activities. Journal of Information, Law and Technology, 1. Retrieved on
June 30, 2011 from http://go.warwick.ac.uk/jilt/2009-1/snail.
Van der Merwe, D., et al. (2008). Information and Communications Technology Law.
Durban: Lexis Nexis Butterworths.

Hacking and Fraud
Qualitative Analysis of Online Offending and Victimization

6

ALICE HUTCHINGS

Contents
Introduction 93
Nature of Hacking and Fraud
94
Theoretical Perspectives
96
Research Questions
97
Method 98
Results 100
Discussion 109
Reliability, Validity, and Reflexivity
110
Conclusion 111
Limitations 111
Acknowledgments 112
References 112

Introduction
This research relates to computer crimes that compromise data and financial security, namely, hacking and online fraud, focusing on offenders’ perceptions of victims. Very little is known about those who commit computer crimes. This is despite the increase in offending rates that have corresponded with the wider availability of computers to the general public from the 1980s and the introduction of the World Wide Web in 1991 (Moschovitis et al.,
1999). These technological advances have increased the reach of offenders as well as the vulnerability of potential victims. Cybercrime offenders constitute a hidden and hard-to-access population. This qualitative analysis draws from interviews with self-identified offenders, law enforcement officers who investigate these offenses, and court documents.
The aim of this study is to examine the factors relating to online victimization. Rational choice theory and techniques of neutralization have been
93

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identified as suitable theoretical frameworks to achieve this aim. Therefore, areas that are explored in this analysis include: offenders’ motivations; people or organizations that are targeted; rationalizations for offending based on victim characteristics; whether physical distance from the victim helps alleviate feelings of guilt; whether offenders believe that those who do not secure their systems or information deserve to be taken advantage of; and potential targets that are avoided due to an increased likelihood of detection or for other reasons. This work contributes to the literature relating to online victimization, providing insight through the lens of offenders, law enforcement officers, and the judiciary.

Nature of Hacking and Fraud
Hacking, for the purpose of this research, is defined as unauthorized access to a computer system, regardless of the motive, or misuse of legitimate access to a computer system. Misuse of legitimate access to a computer system, or insider abuse of access, occurs when hackers abuse the trust they have been given, such as an employee or contractor accessing or altering an employer’s data (Shaw et al., 1998). Computer fraud refers to the use of information and communication technology to manipulate others into providing money or identity information.
Some of the activities pursued by computer enthusiasts have been labeled as criminal. One example is “hacking,” an umbrella term that, these days, encompasses a variety of pursuits that compromise computer security but overall refers to gaining unauthorized access to a computer system with or without a further criminal motive (Brenner, 2007; Wall, 2007). Once access has been gained, hackers may obtain confidential information, such as credit card details, or “deface” websites. Hackers may employ social engineering techniques as well as technical methods to gain access to computer systems.
A number of studies have examined the hacker subculture. For example,
Meyer (1989) found that hackers had an extensive social network, which was used for expertise and skill advancement. Holt (2007) examined how hackers learned, through these online social networks, as well as through trial and error, the use of forums, and offline connections. Perceived and reported motivations for hacking and computer fraud offenses are many and varied, and hackers may be motivated by more than one factor. Table 6.1 summarizes some of these motivations, drawn from the relevant literature.
Computer fraud, for the purpose of this research, involves a large number of frauds that are conducted in the online environment. Online fraud may be conducted to manipulate others into providing money or identity details, using a variety of mediums, including e-mail, social networking sites, such as chat or dating websites, and online trading sites (Brenner, 2007; Finch, 2007).

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Table 6.1 Motivations Reported in the Literature
Motivation

Key Cited Literature

Curiosity and self-education

Barber (2001); Chantler and Broadhurst (2006);
Jordan and Taylor (1998); Standing Committee on Communications (2010); Taylor (1999)

Ecological, political, and ethical activism
(“hactivism”)

Australian Institute of Criminology (2005);
Barber (2001); Chantler and Broadhurst (2006);
Furnell (2002); Standing Committee on
Communications (2010); Taylor (1999)

Financial gain, such as through extortion, espionage, or fraud

Australian Institute of Criminology (2005);
Barber (2001); Chantler (1995); Chantler and
Broadhurst (2006); Coleman (2006); Furnell
(2002); Shaw et al. (1998); Standing Committee on Communications (2010)

Feelings of power

Australian Institute of Criminology (2005);
Jordan and Taylor (1998); Taylor (1999)

Damage other countries or political parties, such as through information warfare Barber (2001); Berson and Denning (2011);
Standing Committee on Communications
(2010)

Demonstrate, test, and challenge skills

Australian Institute of Criminology (2005);
Chantler (1995); Furnell (2002); Goode and
Cruise (2006)

Obtain social status

Australian Institute of Criminology (2005);
Chantler (1995); Jordan and Taylor (1998);
Standing Committee on Communications
(2010); Taylor (1999)

External pressure, such as from terrorism organizations or organized crime groups

Chantler and Broadhurst (2006)

Anonymize future attacks

Australian Institute of Criminology (2005)

Settle personal grievances

Australian Institute of Criminology (2005);
Chantler and Broadhurst (2006); Coleman
(2006); Furnell (2002); Shaw et al. (1998)

Use system resources for personal use

Australian Institute of Criminology (2005);
Taylor (1999)

Fund terrorist activities or attack critical infrastructure for terrorism

Australian Institute of Criminology (2005);
Furnell (2002); Smith et al. (2010)

“White hat” hacking, such as testing computer and network security

Australian Institute of Criminology (2005);
Barber (2001); Jordan and Taylor (1998)

Addictive compulsion

Chantler (1995); Furnell (2002); Jordan and
Taylor (1998); Taylor (1999)

Be free from, or escape from, the real world Chantler (1995); Taylor (1999)

Fun, excitement, enjoyment, or pleasure

Chantler (1995); Furnell (2002); Jordan and
Taylor (1998); McQuade (2006)

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There are many types of online computer frauds, including identity fraud, card-not-present fraud, Internet auction fraud, investment fraud, advance fee fraud, and phishing.
There is a relationship between the two types of offenses considered in this study as hacking may facilitate fraud. For example, hacked web servers may result in compromised credit card details. Web forums provide a marketplace for malware (malicious software) and stolen data, as well as services such as the distribution of spam, web hosting, and proxy services, which may be used for fraudulent purposes (Chu et al., 2010; Franklin et al., 2007; Holt
& Lampke, 2010; Motoyama et al., 2011). Similarly, hacked e-mails or social media profiles may be used to disseminate spam promoting fraudulent pharmaceuticals or other products and for the purposes of advance fee fraud.
Multiple victims may be involved in scams, such as an individual whose identity or account details have been stolen and the financial institution, government agency, or service provider that has been duped. The cost of online fraud extends beyond the direct financial loss to include loss of consumer confidence, lost time, and the emotional impact on victims.

Theoretical Perspectives
Two criminological theories provide the main framework for this analysis.
Rational choice theory assumes that offenders calculate the perceived costs and benefits of crime with the assumption that they seek some type of advantage from their actions, be it “money, sex or excitement” (Cornish & Clarke,
1987, p. 935). Rational choice theory looks at how offenders in particular situations make these calculations (Vold et al., 2002). The theory acknowledges that offenders’ perceptions of costs and benefits can be subjective,
“constrained as they are by time, the offender’s cognitive abilities, and the availability of relevant information” (Cornish & Clarke, 1987, p. 933), and therefore may not be rational at all (Akers & Sellers, 2004). Other “choicestructuring properties” (Cornish & Clarke, 1987, p. 935) are offense-specific.
For example, when offenders weigh up the type and amount of benefit likely against the perceived risk of detection and punishment, they take into consideration their skills and the skills needed to successfully commit the offense and the availability of the necessary equipment or situations (Cornish &
Clarke, 1987). In addition, each of these considerations may not have equal weight. For example, a high likelihood of detection may be more influential in deterring crime than harsh punishments (Clarke, 1997).
According to the second theory, Sykes and Matza’s (1957) techniques of neutralization, offenders learn to use techniques to justify or neutralize acts that might otherwise produce feelings of shame or guilt and distinguish between “appropriate and inappropriate targets for … deviance” (Sykes &

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Matza, 1957, p. 666). Matza (1990) maintained that those who commit crime are not fundamentally different from those who do not; in fact, they spend most of their time behaving in a law-abiding way. Matza’s (1990) claimed that most delinquents drift in and out of crime, enabled by the loosening of social control. The conditions that make this drift to criminal behavior possible include the use of the techniques of neutralization. These techniques are: to deny responsibility; to deny injury; to deny the victim; to condemn the condemners; and to appeal to higher loyalties (Sykes & Matza, 1957).
McQuade (2006, p. 141) states that “there has been extremely little empirical testing of established theories to explain in explicit terms why cyber crimes occur.” Some exceptions are Skinner and Fream (1997), who applied social learning theory to music piracy and unauthorized computer access by a student population; Rogers (2001), who applied social learning theory and moral disengagement to hackers; and Patchin and Hinduja (2011), who applied general strain theory to cyber bullying. Digital piracy has also been examined using low self-control and social learning theory as frameworks
(Higgins, 2004), as well as the techniques of neutralization (Higgins et al.,
2008).
Turgeman-Goldschmidt (2009) interviewed Israeli hackers and identified their use of the techniques of neutralization. Walkley (2005) discussed how the techniques of neutralization may explain computer crimes, but she did not conduct an empirical test of this theory. Interestingly, TurgemanGoldschmidt (2009) and Walkley (2005) came to quite different conclusions about the applicability of some of Sykes and Matza’s (1957) proposed neutralizations. For example, Turgeman-Goldschmidt (2009) found no evidence that offenders engage in denial of responsibility, which was the technique of neutralization that Walkley (2005) argued had the greatest support. Pontell (2002, p. 319) has called for more “explanation and theory testing and ethnographic and descriptive study” into these types of crime in order to strengthen criminology as a discipline, particularly in its understanding of emerging deviant and criminal behaviors.

Research Questions
Rational choice theory and techniques of neutralization provide frameworks for thinking about how offenders may go about victim selection, particularly who might be targeted or avoided. For example, rational choice theory examines the likelihood of detection, the level of technical skills required, or the level of anticipated benefit. The costs to offenders are not limited to the punishments meted out by the criminal justice system, but could also include feelings of guilt or shame, which may be mediated by the Internet as offenders are not in physical contact with their victims. The techniques of neutralization

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may also inform target selection, as the characteristics of some potential victims may be more conducive to neutralization than others. Therefore, with these theories in mind, the areas explored in this study include:

1. What are offenders’ motivations?
2. What people or organizations do offenders target?
3. What people or organizations do offenders avoid?
4. Do offenders rationalize their actions based on victim characteristics?
5. Does physical distance from the victim help alleviate feelings of guilt? 6. Do offenders believe that those who do not secure their systems or information deserve to be taken advantage of?
Method
A qualitative research design was selected for its ability to provide a deep understanding of the offending behavior. This study involved three stages. The first stage was a qualitative analysis of court documents, in particular sentencing remarks and court judgments relating to prosecutions and extraditions involving computer fraud and unauthorized access in Australia, the United
Kingdom, the United States, and New Zealand. A systematic review of legal databases was conducted to identify relevant cases. Only documents available on public databases were identified and retrieved. Although this resulted in a selected sample, it provides an illustration to explore the issues pertinent to this research. Of the 54 cases included in this stage, 12 were female offenders, while the remaining 42 were male. The mean age of the sample, where known
(n = 35), was 32.7 years, ranging from 18 to 50 years. When sorted by type of offense, 44.4% (n = 24) had committed a fraud offense, 27.8% (n = 15) had committed a hacking offense, and the remaining 27.8% (n = 15) had committed offenses that could be classified as both hacking and fraud.
Stage two consisted of interviews with law enforcement officers within computer crime or fraud specialist units from four policing agencies in Australia, namely, the Australian Federal Police, the Queensland Police Service, Western
Australia Police, and Victoria Police. These interviews focused on officers’ experiences with, and perceptions of, offenders who have been identified by the criminal justice system. The interviews were one-on-one, open-ended, and semi-structured. The interviews were broadly structured as follows:
• The background of the interviewee, such as how long they had been with the policing agency, and their overall experience with these offense types
• Offender characteristics, including age, gender, family status, and employment status

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•
•
•
•
•
•
•

99

Offenders’ skill, expertise, and time dedicated to offending
Involvement in other offense types
Involvement with other offenders
Initiation into, and desistance from, offending
Target selection
Motivations
Offenders’ reactions to law enforcement

The 15 law enforcement officers interviewed in stage two included 14 males and 1 female. The interviews ranged from 32 min to 1 h and 16 min, with a mean time of 51 min.
Stage three consisted of face-to-face interviews with active and former offenders. Participants were recruited within Australia using snowball sampling, a nonrandom, purposive method. Initial recruitment used informal networks. Those known to the researcher who worked and/or studied in the IT industry were encouraged to source participants. The benefit of such an approach is that such recruiters are able to assure potential participants that the researcher is legitimate (Wright et al., 1992). Participants were also encouraged to approach additional potential participants. Recruitment consisted of advising potential participants about the research and what it entailed and providing the contact details of the researcher. In this way, participants self-identified as being members of the target population and because the participants had to contact the researcher, they were in control of the amount of personal information that they provided. The interviews were one-on-one, open-ended, and semi-structured based on a modified version of McAdams’ (2008) Life Story Interview. Additional questions enquired about the following topics:
• Relationships with family members, friends, significant others, and other offenders
• Employment and living arrangements
• Time involved in offending
• Involvement in other illegal behavior
• Experiences with the police and the criminal justice system
• Age when started offending
• How the decision to start offending was reached
• How targets were chosen and what was gained
• Perceptions of getting caught and penalties
• Feelings before, during, and after offending
• People or organizations that would not be targeted
• The best and worst parts of offending
• Self-perceptions
• How skills were obtained and improved

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•
•
•
•
•
•
•
•

The extent that offending interferes with participation in other activities
When is it okay to offend and when is it not
Why they stopped offending and at what age (for former offenders)
Opinions of those who do not secure their systems or information
How morally wrong/serious hacking/fraud is
Whether hacking/fraud should be against the law
Friends’ involvement in hacking/fraud and other types of crime
How serious do police officers consider hacking/fraud to be and respect for police
• Opinion of school and education level
Of the seven offenders who participated in stage three, five identified as hackers and two as both hackers and online fraudsters. Five were active offenders and two identified themselves as former offenders. All participants were male, aged between 18 and 49, with a mean age of 29.7 years at the time they were interviewed. The interviews ranged from 45 min to 2 h and 18 min, with a mean time of 1 h and 39 min.
All interviews were transcribed verbatim. Data from the three stages were analyzed together to identify the themes that related to victimization and target selection. Coding of the data was mainly “concept-driven” (Gibbs,
2007, p. 44), in that the codes used primarily arose from the literature relating to the theories examined. However, “data-driven coding” or “open coding”
(Gibbs, 2007, p. 45) was also utilized when other key themes arose during the analysis. NVivo, a qualitative data analysis program, was used to classify and sort the data according to the codes applied, to see how the data represented the theoretical frameworks.

Results
Question 1: What are offenders’ motivations?
Many motivations for offenders were identified in the data. Financial gain appeared to be the logical motivation for fraud, whereby victims are persuaded to part with their money. However, Braithwaite (1993) prompts us to question whether financial gain, in turn, is motivated by need or by greed. To distinguish between the two, offenses motivated by need are committed by those living in poverty, but offenses that are motivated by greed or “insatiable wants” (Braithwaite, 1993, p. 222) are crimes of the wealthy.
In order to establish whether financial gain was motivated by greed or need, how the money was applied was considered. It is noted that this is a subjective measure, as what may be considered luxurious to some, may be a necessity to others. However, it was clear that in some instances, financial gain was used to meet basic needs:

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He admitted that he had received the complainant’s money and said that he had spent it on living expenses … That the proceeds of the fraud were used to meet expenses including child support payments. (Case #21, male fraudster, age unknown)
However it seems clear that you committed these crimes because you were unable to get any money from any other sources. (Case #43, female fraudster, aged 45 at time of court appearance)

However, there were other instances where it appeared that the gain was not used to meet the necessities of daily life:
The moneys were spent on furniture ($12,000.00), motor vehicle repairs following two accidents ($10,000.00) and the remaining sums on personal expenditure such as restaurants, clothing and other items. (Case #30, female hacker and fraudster, aged 22 at time of court appearance)
At interview with the police you said you had no idea why you had stolen the money. You were not in financial need. You paid lump sums off mortgages, assisted your parents and bought things for yourself and gifts for others.
(Case #49, female fraudster, aged 32 at time of offence)

On one occasion, the fraud commenced as the offender was in a difficult financial situation; however, it appeared that the offending continued beyond the rectification of this state:
In June 2006, after two years in this position, [he] was in financial difficulties as a result of over-spending on credit card purchases … By the end of September 2006, after five such transactions, he had defrauded his employer of over $68,000, and was no longer in financial difficulty.
In fact he had been able to spend a lot of money modifying his new partner’s home and purchasing items for it. He ceased offending for about 15 months because he had all the money he wanted … He resumed offending in late December 2007. (Case #46, male fraudster, aged 43 at time of offence) Law enforcement officers advised that hackers and fraudsters often differed in terms of motivation. While fraudsters were always seen as being motivated by financial advantage, this was not always the case for hackers, although this appeared to be changing as hackers were identifying ways to utilize their skill sets for illicit gain:
Is suppose, what they’re trying to achieve, um, yeah, typically I’d think, if it’s going to be an online fraud it’s going to be money based, if it’s going to be hacking it’s not, not financially based … I think, probably the most, with the

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hacking I would say they’re most likely to target their previous employment.
(Law Enforcement Officer #4)
It depends what fraud you’re going into. With hacking you might have an IT skill; you might want to prove yourself. You might want to get even with someone at school, so you work out how to hack someone’s, you know, a person you don’t like, you hack into their account, get their email, take their email, depends what your motivation is. The financial scammers, obviously they’re in it for money. People go from never having committed a criminal offence in their life to full time online scamming without any hesitation at all. Really there’s a distinction between the hacking and the socially engineered crimes.
(Law Enforcement Officer #9)

As was identified above, one motivation for hackers was retribution or revenge against an employer or former employer (Case #7, male hacker, aged
26 at time of court appearance; Case #19, male hacker, age unknown; Case
#25, male hacker, aged 24 at time of court appearance; Case #42, male hacker, age unknown) or as the result of being unsuccessful with a job application
(Case #11, male hacker, aged 28 at time of offense). Other instances of hacking were motivated by retribution against perceived wrongdoing by someone known to the offender, for example:
But, um, besides that, I have targeted a few people, not a few, just like one or two. Um, mainly because I didn’t like them, and there was some other stuff that, um, caused a bit of shit between us. And I was quite upset with these people, so I thought, well, this is what I can do, they will never catch me.
(Interview #6, male former hacker, aged 18)

One law enforcement officer recounted an investigation whereby the offender, initially motivated by changing their university grade, had then targeted those who had realized the error, as revenge:
… and he’s changed his marks from fails to passes and then of course, once he’s learnt that’s so easy, he’s been prolific ... and what’s happened in this specific case is he’s obviously been caught, because they realised that marks had been changed because the administrators gone hang on, that student failed, why is his mark all of a sudden a pass mark. And of course, that led to reporting to the police and we investigated it and then we charged him. You know, he saw that as the professor’s fault. You made me; it’s because of you I got charged ... So then he started stalking the professor. So he started stalking all the professors that had given evidence and all the staff that have given evidence in relation to this case, and to facilitate the stalking he compromised more accounts … And he’s using facilities like that to ring up and socially engineer the details of the professors, and once he’s got that, arrange for their phones to be disconnected and their power to be disconnected, so, that whole

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revenge motivation then comes into play and it’s in full swing. You know, and he’s compromised people’s accounts, he’s reading all their emails, he’s sending emails, setting up dodgy gmail accounts in the professors’ names, signing up to websites, sending them emails purporting to be a professor to gain access into other sites, it just blew out of control. (Law Enforcement Officer #8)

Parker (1998) claimed that some hackers have extreme political views, including anarchist, Nazi, or extreme right wing associations. However, while law enforcement officers advised that there were hackers targeting sites for political reasons, they also indicated that this was a small minority:
Um, look, I think it’s a couple of things. I think it’s mainly for money, you do see the occasional hactivist group, but it very much tends to be monetarising that skill set. Um, so, and, yeah, so that’s the main cause that they come to, it’s about getting the money out of the system as much as you can. (Law
Enforcement Officer #13)
Yeah. Look, there’s not many that’s political … you might get the odd one for political motivation that, you know, that send something to the government or do something to affect the government, or some other agency, body, they’ll do that for that sort of a gain. (Law Enforcement Officer #7)

It appeared that political ideology was overrepresented in the media compared to hacking for other purposes:
Yeah. I’d say there are political reasons. Targeting sites … So we don’t have a lot of those here. Besides what we see in the media. (Law Enforcement Officer #4)

Of the motivations identified in the literature, the data from these studies supported (1) to demonstrate, test, and challenge skills; fun, excitement, enjoyment, or pleasure; curiosity and self-education; feelings of power; espionage; (2) to obtain social status; and (3) to anonymize further attacks. Many offenders obtained more than one benefit from their offending.
A number of unique motivations were identified in this research, namely, righting perceived unfairness, to commit further offenses, and for sexual gratification. In the following case, the offender had granted members of the public relief from taxation due to perceived unfairness:
There was no financial gain to the appellant in taking this course. He did so because of a desire to expedite the process, a heavy workload and concern about suggested inconsistencies in determinations of applications for relief.
(Case #1, male hacker, age unknown)

One of the hackers and fraudsters interviewed also claimed that he first started offending due to apparent injustice:

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Oh. One of the network admins at school had, what’s it called, one of the network admins at school had Mist on his computer, or on his account. School children aren’t allowed games on their computers. That’s not fair, you’re playing it!
We can play it at lunchtime. No, you’re not allowed it. That’s for me. Right. No, it’s for everyone, it’s not fair. That was the first bit … That was ah, yeah, that was the first time I think. The first time I ever did something dodgy with a computer.
And then I committed fraud on his computer, signing him up to a whole bunch of stuff. (Interview #5, male hacker and fraudster, aged 22)

A law enforcement officer advised how identity fraud was used to commit further offenses, namely, drug trafficking:
Oh, yeah, I’d say drug trafficking … Well, it helps support their operation, those particular deceptions were used, um, more so for travel arrangements. Interstate and overseas … Yeah, so the online fraud was used to purchase tickets to travel interstate for the purposes of trafficking. (Law Enforcement Officer #4)

Motivations relating to sexual gratification included hosting child exploitation material on compromised servers, as well as obtaining access to photographs and impersonating another for erotic purposes:
He hacked in to someone’s MSN and then pretended to be the guy, pretended to be that person, and then was chatting to that person’s girlfriend, and basically it got quite lurid and stuff like that. And the girl realised it wasn’t her boyfriend and backed out sort of thing. (Law Enforcement Officer #11)
No, they would, I suppose almost stalk, they were sending out emails from that account, or uploading photos or contacting other people requesting sexual favours. And, even putting it politely to start with, yeah, it was bizarre.
(Law Enforcement Officer #4)

Question 2: What people or organizations do offenders target?
Six main themes arose when analyzing the data in relation to types of people or organizations that would be targeted, namely, systems known to or accessible by the offender; companies perceived as undertaking questionable activities or offending ideological reasoning; those that are perceived as having wronged the offender; those who have known vulnerabilities or are perceived as being easy targets; indiscriminate targets, based on chance; and targets providing a high reward.
Ease of access appeared to be a factor that explained why systems known to or accessible by the offender were targeted. In some instances, offenders acted on opportunities presented to them, for example:
The accused was formerly a police officer and as such had authorised access to the […] computer system. (Case #32, male hacker, age unknown)

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Denial of the victim was apparent when offenders targeted companies perceived as undertaking questionable activities or offending ideological reasoning: I suppose you’ve got anything from ideology, you know, people who want to stop animal testing will purposely target sites, you know, pharmaceutical companies and things like that. Sort of along the same vein, if people who don’t believe in shooting animals, you know, will target a deer hunting website and graffiti that. (Law Enforcement Officer #5)

Law enforcement officers also stated that offenders were targeting those that they perceived had done them wrong:
As far as hacking, unauthorised access, we’ve had a few where they’ve been ex-employees, in general the disgruntled employee’s been dismissed for whatever reason, uses those privileges that they have, the company sometimes fails to secure the network after that person leaves and they just access it without authority later on. Either using their own credentials or using someone else’s.
(Law Enforcement Officer #2)

Some targets were selected because they had known technical vulnerabilities, thereby lessening the effort required to gain unauthorized access:
You can target an SQL database with credit card details. And they target those because they can run exploits and they can scan vulnerable, say, SQL database targets. (Law Enforcement Officer #1)

Offenders also admitted that they chose their targets based on the likelihood that their activities would go undetected:
When you go with the bigger companies it’s easier to get what you want because, for the most part, they’re busier, their policies and procedures overlook everything. Where smaller companies tend to have more of a wire tooth comb policy. You know, they go through everything a little further. So it’s easier to deal with something big or something like that. (Interview #1, male hacker and fraudster, aged 27)

Some targets were obtained by chance, with the Internet allowing offenders to obtain a large number of targets with little cost in terms of time or involvement: I think, what we find online is that they target so many people and so rapidly and economically, it doesn’t cost you any more to hit one than to hit thousands, it’s almost a scattergun approach. You look at, like, bot herding and bot cultivation, which is the biggest risk on the internet bar none, that’s very much

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a scattergun. They write their bot code and put it on YouTube and Facebook and MP3s. And then they just spread it online and see what comes back. (Law
Enforcement Officer #1)

Finally, some targets were selected due to the amount of the perceived benefit to the offender:
Yeah, basically I like to put it in the terms of a return on investment. Um, you know, we’ve seen countless times in logs and so forth, where they talk about this account has only got ten thousand dollars in it, I need accounts with forty thousand dollars in it. So, basically there’s a cost for them to move the money and the corresponding cost if you will, the opportunity cost to exposing themselves to that risk of offending, so they are looking for a certain dollar value before they’ll undertake those activities. (Law Enforcement
Officer #13)

Question 3: What people or organizations do offenders avoid?
Just as some targets were selected because they were seen to be deserving of victimization, there was evidence that some targets were avoided if there was the potential for innocent parties to be harmed:
I’ve definitely come across a couple of cases where I’ve spoken to people and they’ve said that they’d never do that. You know, I suppose things like hacking into hospitals or medical centres, where people’s lives may be affected by the data, you know, medication and things like that. (Law Enforcement Officer #5)

Likewise, potential targets were spared if they were seen to be undeserving of victimization:
It’s not fair to kick them while they’re down though. […] you don’t have a deaf person that’s just had five people die and given their credit card number out to the funeral home and then say oh, I need a CD player, and then, you know, try and jack that person for it. Um, it’s really really bad ethics to do it in the first place, but there’s still, there’s at least a little bit of honour to it. (Interview #5, male hacker and fraudster, aged 22)

One law enforcement officer advised that offenders were not likely to victimize those who could potentially retaliate against them:
I don’t think they would target you know, anything that could really hurt them. You know, like Russian organised crime or the Chinese government.
(Law Enforcement Officer #12)

Similarly, another officer advised that offenders were not likely to target government or military sites:

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I’m pretty sure that most would steer away from.gov or.mil sort of things.
You know, if they knew what they were doing. If they saw a target come up and it was like .gov or a .mil site they’d probably much prefer to go off to the you know, the Swedish web shop rather than the government installation, so there probably is a bit of self-preservation in there. (Law Enforcement
Officer #14)

As mentioned above, one offender advised that he selected large businesses as fraud targets as they were less likely to detect abnormal transactions. Conversely, one hacker advised that he avoided large businesses as they were more likely to try and identify who he was:
I would never target the government or big businesses or, I never really target people who know about that stuff as well, and could actually track me down.
Like, I wouldn’t target a big business because they obviously have the power to do something about it. (Interview #6, male former hacker, aged 18)

Question 4: D o offenders rationalize their actions based on victim characteristics? Offenders reportedly rationalized their actions if they perceived that there was little or no loss to individual victims:
Because they know, if they rip someone off generally the banks will reimburse them or if they’re ripping someone off on an online auction site there’s
Paypal. Paypal will reimburse them. All the big organisations will cop the hit, not so much the individual. We’ve had some of them say in regards to those types of offences, they actually think they’re excuses, that they picked that site because they knew that site had a policy that if people would be reimbursed, so they didn’t want to actually target the particular victim, they just wanted the money out of the site, they knew the site would reimburse the money. (Law
Enforcement Officer #2)
Well, for a lot of credit card fraud it’s, you know, the banks have got lots of money, the banks will give the customers the money back anyway so, yeah, they try to make out as if it’s a victimless crime. (Law Enforcement Officer #12)

Another rationalization related to the neutralization technique of “appeal to higher loyalties,” particularly where it was seen that the offenders’ actions were for the common good, such as instances where there was a lack of transparency on behalf of the victim:
I think the reality is that the people, the perpetrators of the problem, in this particular instance, the climate change debate, was the university. […] there was no free speech, […] if you’ve got something to hide, you know, there’s a problem there. (Interview #4, male former hacker, aged 49)

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Offenders also appealed to higher loyalties by claiming that their behaviors revealed vulnerabilities that would ultimately make the Internet a safer place, for example:
Sometimes you get that in the hacker space, i.e. yes, I committed an offence, but I only did it to show the world that, you know, these people should be more secure in the way they’re doing their business kind of thing. (Law Enforcement
Officer #13)

Another rationalization was to condemn the condemners for the harm that they had allegedly caused. This rationalization was usually ideological in nature, such as the following instance:
He stated that his targets were high level US Army, Navy and Air Force computers and that his ultimate goal was to gain access to the US military classified information network. He admitted leaving a note on one army computer reading: ‘US foreign policy is akin to government-sponsored terrorism these days…’. (Case #28, male hacker, aged 40)

However, one officer maintained that high-level offenders operating in criminal syndicates did not rationalize their actions:
Um, to be honest, most of the organised crime guys, they’re not really looking for any justification, they’re there to commit fraud to make money. It’s a business. Your whole justification thing is more when you’re moving into that kind of grey hat, you know, I’m a social activist who operates online kind of thing.
(Law Enforcement Officer #13)

Question 5: Does physical distance from the victim help alleviate feelings of guilt?
There was substantial evidence that offenders were able to resolve their feelings of guilt or remorse as they were not physically near their targets. For example: A lot of the extortions and threats that you get online in the social networking sites, the way people talk to each other and those sorts, they wouldn’t say it to the person’s face. But, because, yeah, there is that element of being removed.
[…] they do tend to be removed from what they’re doing, removed from the consequences of their actions as well. (Law Enforcement Officer #2)

Question 6: Do offenders believe that those who do not secure their systems or information deserve to be taken advantage of?
The belief that victims who do not secure their systems or information deserve to be taken advantage of relates to the neutralization technique “denial of

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the victim.” Offenders particularly mentioned that people or organizations that had lax password management, such as not changing default passwords, were deserving of victimization. The overall consensus of offenders could be summed up as:
There’s no defence really, if you’re too stupid to secure your information then you don’t deserve to be the custodian of that information. (Interview #4, male former hacker, aged 49)

Discussion
While fraudsters are mainly motivated by financial gain, hackers enjoy a variety of benefits from their activities. The data supported a number of benefits previously reported in the literature, as well as righting perceived unfairness, to commit further offenses such as drug trafficking, and sexual gratification.
There was little evidence that hacking was committed for purposes such as information warfare. By contrast, it was found that hackers would avoid government and military targets in order to avoid focus on their activities.
While this may appear to contradict the wider literature that identifies these as potential targets (Barber, 2001; Berson & Denning, 2011), the sample included in this research may reflect more mainstream offenders, representing the majority rather than a minority of offenders with the appropriate skill, expertise, and relevant motives for such attacks.
One component of rational choice theory is that when offenders weigh up the type and amount of benefit likely against the perceived risk of detection and punishment, they take into consideration the skills and equipment needed to successfully commit the offense (Cornish & Clarke, 1987). This analysis identified that the types of people or organizations that were deemed to be suitable targets included systems familiar to or accessible by the offender and those that had known vulnerabilities. This indicates that cybercrime offenders are targeting systems that are easily accessible and well known to them. Many offenders also took steps to conceal their activities by removing or changing evidence that they had accessed particular systems. There was some indication that offenders are calculating the risks of detection and punishment when selecting victims. For example, other targets included those who did not have systems in place to detect fraudulent activities, further reducing the likelihood of detection.
The data indicated that offenders are employing the techniques of neutralization, particularly denial of the victim. Companies perceived as undertaking questionable activities or offending ideological reasoning were perceived to be fair game. Revenge or retribution was also a common theme that emerged in cases where targets were selected because they were

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alleged to have wronged the offender. However, offenders avoided targets if they were undeserving of victimization or if they were aware of the potential harm arising from their actions that would impact innocent parties. Other targets were selected indiscriminately, based on chance. The rationalizations for offending based on victim characteristics were ideological in nature, including the loss impacting major corporations rather than individual victims. Some offenders appealed to higher loyalties when hacking in order to obtain information where it was seen that the victim lacked transparency and the release of that information was in the public’s interest. Consistent with Turgeman-Goldschmidt’s (2009) findings, there was little evidence that offenders engaged in denial of responsibility.
This study also found that physical distance from the victim does help alleviate feelings of guilt and that offenders do believe that those who do not secure their systems or information deserve to be taken advantage of.

Reliability, Validity, and Reflexivity
This section will address some of the pertinent issues relating to reliability, validity, and reflexivity. In relation to reliability, it is possible that the data obtained is not an accurate depiction, that is, that the information provided is not truthful or valid. This may occur because the participant had trouble with recollection, misinterpreted the question, or preferred not to give an honest answer. It may be asked how the researcher can believe the accounts of those who, due to the subject matter, may be untrustworthy. However,
Wright and Bennett (1990) have examined the literature relating to the truthfulness of accounts given by offenders during qualitative interviews. They conclude that much of the information provided during interviews agrees with official records, and that, after agreeing to be interviewed, offenders perceive lying to be pointless, as they may as well not have consented at all. In addition, during the interviews with active and former offenders, time was spent checking for distortions and exploring the participants’ responses with them to seek clarification. Some questions were also asked in more than one way in order to compare the responses. For example, the questions “how did you choose the targets that you did” and “what type of target do you avoid” are both aimed at examining the applicability of rational choice theory in relation to risk, reward, and difficulty levels.
Another problem with reliability may be “definitional drift” (Gibbs,
2007, p. 98), where the meanings of codes may change over time. Notes were made on all the possible meanings of each code to enable a more reliable and stable coding system.
The validity of the research design was improved by triangulation (Gibbs,
2007). The different sources of data and theories tested allowed for two types

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of triangulation, namely, “triangulation of measures,” as there are different methods of data collection, and “triangulation of theory,” as multiple theoretical perspectives have been utilized (Neuman, 2006, pp. 150–151).
Reflexivity refers to the preconceptions and effects that the researcher brings to the study, for example, preconceived notions of what the research will find, which may affect how questions are asked, or biases and experiences toward the subject being researched (Gibbs, 2007). Reflexivity has gained much attention in qualitative studies; however, this challenge to objectiveness may also be applied to quantitative research designs (Gibbs, 2007).
Reflexivity may also change during the research project, as the researcher’s interpretations and understandings adjust to the phenomenon studied.
Gibbs (2007, pp. 92–93) provides some suggestions for “reflexive good practice,” including critically assessing the data and biases held by the researcher, being explicit about any theoretical models and the assumptions that these may hold in relation to broader values, discussing what decisions were made and why, and avoiding oversimplification of the data.

Conclusion
Offender techniques are constantly evolving, as are the technologies that present the opportunities to offend. Therefore, it is argued that a strategic approach to crime prevention should be implemented. This can include technical countermeasures, such as firewalls, antiviruses, and other target-hardening techniques.
However, in many instances, the vulnerabilities exist at the user level, with offenders using social engineering tactics to gain access to systems. Therefore, educating potential victims about computer security is also essential. However, there is a large pool of susceptible targets, and offenders are constantly changing their methods. Thus, it is important to know more about these types of offenses so that alternative deterrence strategies can be developed.

Limitations
It is noted that limitations may arise due to biases within the research design.
For example, as noted by Smith et al. (2004), the limitations of using court documents include the fact that many matters are heard in the lower courts where judgments may not be published and that it is difficult to determine which matters involve computer crime due to the classification of offenses.
Another limitation that is relevant to stage one is that cases brought before the courts are unlikely to be representative of the larger population of hackers and online fraudsters who are not apprehended or prosecuted. Interviewing active and former offenders mitigated this limitation.

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However, the sample of active and former offenders was not chosen at random; therefore, it may be argued that the participants are not representative of the offender population. In addition, those who agree to be interviewed may differ from the typical offender. Nonetheless, although this sample is not likely to include offenders who have worked for, or are part of, a terrorist organization or organized crime syndicate, it may include more mainstream offenders who, collectively, may cause significant damage or fear of victimization. Again, this limitation was minimized by including offenders who have been identified by the criminal justice system and those who have not.

Acknowledgments
I would like to thank those who participated in this study and the assistance provided by the Australian Federal Police, the Queensland Police Service,
Western Australia Police, and Victoria Police. I also appreciate the support of my supervisors, Dr. Hennessey Hayes, Associate Professor Janet Ransley,
Professor Simon Bronitt, and Professor Peter Grabosky.

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F. Schmalleger & M. Pittaro (Eds.), Crimes of the Internet (pp. 317–335). Upper
Saddle River, NJ: Pearson Education.
Vold, G. B., Bernard, T. J., & Snipes, J. B. (2002). Theoretical Criminology (5th edn).
New York: Oxford University Press.
Walkley, S. (2005). Regulating cyberspace: An approach to studying criminal behaviour on the internet. PhD thesis submitted to The Australian National University.
Wall, D. S. (2007). Cybercrime: The Transformation of Crime in the Information Age.
Cambridge: Polity Press.
Wright, R., & Bennett, T. (1990). Exploring the offender’s perspective: Observing and interviewing criminals. In K. L. Kempf (Ed.), Measurement Issues in Criminology
(pp. 138–151). New York: Springer-Verlag.
Wright, R. T., Decker, S. H., Redfern, A. K., & Smith, D. L. (1992). A snowball’s chance in hell: Doing field research with residential burglars. Journal of Research in
Crime and Delinquency, 29(2), 148–157.

Cyber Victimization in India
Preliminary Study*

7

DEBARATI HALDER
K. JAISHANKAR
E. ENANALAP PERIYAR
R. SIVAKUMAR

Contents
Introduction 116
Review of the Literature
116
Preliminary Study on Cyber Victimization in India
118
Methodology: Research Tool, Samples, and Data Collection
118
Results and Discussion
119
Cyberculture 119
Knowledge of Minimum Age
119
Allowing Others to Use One’s Own ID and Password
120
Using Safety Tools and E-mailing Back to Unknown Senders
120
On Exercising Free Speech for Communicating in Cyberspace
121
Reading Policy Guidelines
122
Using Pseudo Names
122
Frequency of Cyber Networking
122
Knowledge of Being Victimized
123
Hacking, Stalking, and Phishing
124
Impersonation and Related Attacks
126
Defamatory Statements/Bullying and Flaming Messages/Hate
Messages/Morphed Images
126
Victimized by Virtual Friends
127
Reporting to the Authorities
127
Awareness of Legal Rights and Reporting Behavior
128
Cyber Victimization of Women and Awareness
129
Major Findings
130
* Parts of this chapter were published earlier in Halder, D. & Jaishankar, K. (2010). Cyber victimization in India: A baseline survey report. Tirunelveli, India: Centre for Cyber
Victim Counselling. Published with permission.

115

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Recommendations 132
Conclusion 132
Limitations 133
References 133

Introduction
In India, the use of cyberspace for professional as well as personal communications has increased since the beginning of the new millennium. However, cyber usage is a double-edged weapon. On the one hand, it has brought a new era of communications; on the other hand, the perils of the misuse of private information are more pronounced.
In India, cybercrime and victimization in cyberspace is a subject of great concern, but lacks awareness. A bizarre combination of the nature of attacks, ever-changing trends of victimization, limited knowledge about direct laws that address cybercrimes in India, and the rights of victims in cases of cyber attacks contribute greatly to the contemporary cyber victimization scenario. Today, millions of Internet users in India are frequenting cyberspace on a regular basis for professional, commercial, social, and educational purposes. Since the boom in the IT sector in India in the 1990s (which still continues), almost every household in the moderate- to high-income groups has Internet access at home and people in the age group of 13–70 years who belong to these clusters regularly use the
Internet either at home, in the workplace, at educational institutes, or at cybercafes. However, along with Internet dependency, the victimization of
“cyber citizens” and those who are not on the “Internet” has grown at an alarming rate, despite India’s exclusive legislation dedicated to information technology, e-governance, e-commerce, and also e-socialization to a certain extent, which has hardly helped in curbing the ever-increasing victimization of individuals in cyberspace in India.
Regrettably, less awareness means more victimization and cyberspace victimization is no exception. In India, awareness of cyber victimization has remained limited to several informative and useful tips on how to save one’s personal computer and personal data from identity fraud, emotional blackmailers, and so on. A comprehensive empirical survey on this issue is needed at this time.

Review of the Literature
An international survey conducted by Norton among 7066 adults aged 18 and over across 14 countries, including Australia, Brazil, China, Germany,
India, Japan, New Zealand, the United States, and the United Kingdom,

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117

found that 76% of Indians are victims of cybercrime. Virus and malware attacks affected the majority of the victims (60%).
The gravity of the problem of interpersonal cybercrime victimization could be vouched from the 2009 report released by the Mumbai police (HT
Correspondent, 2010), which stated that the Mumbai police had received around 268 complaints from women regarding the misuse of cyberspace, including social networking sites. In India, the phrase cyber victimization has become limited within the four conceptual pillars of cyber terrorism, phishing, defamation, and pornography. This study points out that cyber victimization of individuals in India may not be limited to phishing, defamation, or pornography, but may also include adult bullying, stalking, cyber hatred, and cyber flaming.
Despite the lacunae in research on cybercrime victimization, it has become the focal point of some contemporary criminologists (Alshalan, 2006;
Desai & Jaishankar, 2007; Halder & Jaishankar, 2008, 2009, 2010; Kumar &
Jaishankar, 2007; Roberts, 2008, 2009; Umarhathab et al., 2009), and further research work in this area is currently underway (Halder & Jaishankar,
2011). Much research has been carried out on individual cyber victimization cases, such as cyberbullying (Berson et al., 2002; Burgess-Proctor et al.,
2010; Campbell, 2005; Finn, 2004; Halder & Jaishankar, 2011; Hinduja &
Patchin, 2007, 2008, 2009, 2012; Jaishankar, 2009a; Jaishankar & Shariff,
2008; Juvonen & Gross, 2008; Kennedy, 2000; Li, 2006, 2007; Patchin &
Hinduja, 2006, 2010, 2012; Shariff & Hoff, 2007; Smith et al., 2004, 2008;
Spitzberg & Hoobler, 2002; Tolga Aricak et al., 2008; Vandebosch & Van
Cleemput, 2008; Wolak et al., 2006; Ybarra, 2004; Ybarra & Mitchell, 2004;
Ybarra et al., 2007), cyber stalking (Bocij, 2003, 2002; Bocij & McFarlane, 2002;
McFarlane & Bocij, 2003; Medlin, 2002), cybercrimes against women (Halder &
Jaishankar, 2008, 2011), and sexting (Halder & Jaishankar, in press; Ito et al.,
2008; Jaishankar, 2009b; Lenhart, 2009; The National Campaign to Prevent
Teen and Unplanned Pregnancy, 2009).
In the international arena, a number of statistical reports have been published on cyber stalking victimization, including Working to Halt Online
Abuse (WHOA) in the United States, cyber victimization on high school students and young adults in Australia (Roberts, 2008), and cybercrimes against
English users (Fafinski, 2008). While the WHOA statistics mainly reveal the year-wise growth/decline of stalking victimization of U.S. citizens and people from other countries such as Canada, England, and Australia, and South
Asian countries such as Korea and Malaysia, who approach WHOA for help,
Roberts’ (2008) study analyzes cyber victimization in Australia from multidisciplinary aspects, such as psychology, law, and victimology. This study divided cybercrimes into two main compartments, namely, property cybercrimes such as identity theft, scams, and phishing e-mails, and interpersonal cybercrimes such as cyber harassment, cyberbullying, and cyber stalking.

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The Garlik report, on the other hand, analyzed the concept of cybercrime from criminological perspectives. This report mainly concentrated on identity theft and identity fraud, financial fraud, and offenses against the person, such as cyber harassment, defamation, computer misuse, and sexual offenses. It pointed out that cybercrime is a “pressing and prevalent social problem.” This report also emphasized issues such as less reporting by the victims and legal loopholes. There are little or no studies dealing with cyber victimization in
India. Barring one study (Halder & Jaishankar, 2010), until now, a holistic study on interpersonal cybercrime victimization has not been done in India.
The current research work tries to fill the gap in the literature in this area.

Preliminary Study on Cyber Victimization in India
On behalf of the CCVC, we conducted a preliminary survey with a sample size of 73 respondents (60 respondents were female) from all over India on cyber victimization of women and the related awareness among women and men in India (Halder & Jaishankar, 2010).
The goals of the current survey are:
• To examine the level of awareness of adult Internet users of modern cybercultures, the trends of victimization and common legal rights
• To spread awareness about the various trends of cyber victimization of adult Internet users
The objectives of the study are:
• To examine the trends of individual victimization
• To analyze the level of awareness about the victimization that occurs in cyberspace
• To know about the respondents’ awareness of common legal principles and legal rights regarding Internet crimes

Methodology: Research Tool, Samples, and Data Collection
The research tool used for this study is a structured questionnaire. This survey is designed with the purpose that the sample selection should closely represent the characteristics of the target population, that is, the general adult
Internet users of India, who may or may not be aware of the nature of their victimization in cyberspace.
The target population consists of 73 respondents (including 13 male and
60 female) from different regions of India, who are computer literate and
Internet savvy and use social networking websites for virtual hanging out.

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These respondents belong to different economic and social strata and they may or may not have personal computers at home. The researchers contacted
100 respondents by e-mail and 73 responded. Several of these 73 respondents also gave specific feedback, which helped us to frame our observations more accurately. Results and Discussion
Cyberculture
Cyberculture could be defined as a compact term that expresses the norms and cultures that are followed in cyberspace or on the Internet. Often, the word cyberculture is used in context with varied meanings, including the culture of hacking or computer revolution or cybercultural issues like cyber topics, cyber organization (see Macek, 2005), etc. Clarke (1997) has significantly associated the term cyberculture with authorities in cyberspace, such as Internet service providers (ISPs), e-news groups, and cyber communities. For the purpose of this chapter, we construe the term cyberculture as
“a conglomeration of cyber rules, norms, cultures, and principles generally provided by the Internet service providers (inclusive of website hosts, chat line providers, and e-mail providers) and those rules and cultures which may or may not have legal sanction, but which are generally expected to be followed by the common internet users.”
Hence, in this context, cyberculture may mean the following: 1. Knowledge of minimum age to join any cyber community 2. Personal information-sharing activities 3. Use of the freedom of speech
Knowledge of Minimum Age
It is evident from Table 7.1 that among the 73 respondents, 56.2% are aware of the basic age limit for joining any cyber community/groups/social networking sites. It is to be noted that these 73 respondents are adults and the majority of them are “Internetting” for more than 5 years. This particular assessment was necessary as many of these respondents have children who are either preteens, teenagers, or young adults. The majority of the respondents felt that only mature users should use cyber communities, social networking sites, and chat rooms. These respondents are also aware that impersonating as a child
(when the user is an adult or a young adult and camouflages as a preteen or teenager to groom women and children for cyber nuisances including sexual crimes) in chat rooms or social networking sites and trapping other children or women especially, is ethically wrong and can lead to serious legal problems.

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Table 7.1 Awareness of Cyberculture among Indian Internet Users
Yes (%)
1.  nowledge of minimum age to join cyber communities, such as
K
Facebook, Orkut, and Myspace
2. Allow others to use one’s own e-mail ID/profile ID/passwords, etc.
3.  se safety tips, such as filtering e-mails, locking personal albums
U
and information, personal walls of social networking sites, and so forth
4.  -mail back to unknown senders of spam/pornographic/erotic/
E
phishing e-mails
5.  hare personal information/emotions with virtual friends/
S
chat-room partners, and so forth, whom one does not know in real life
6.  elieve in controlling free speech while communicating in
B
cyberspace
7. Read policy guidelines of social networking sites, ISPs, etc.
8. Use pseudo names

No (%)

56.2

43.8

46.6
69.9

53.4
30.1

37.0

63.0

74.0

26.0

37.0

63.0

28.8
45.2

71.1
54.8

Allowing Others to Use One’s Own ID and Password
Of the respondents, 46.6% allow others, such as their spouse, children, or intimate partner, to use their ID and passwords. Surprisingly, this 46.6% also includes a fraction of those who belong to the 56.2% of the respondents who are aware of the minimum age for joining cyber communities. These respondents primarily allow their spouse or intimate partner to use their IDs and passwords to check any e-mails or messages that they may have received during their absence from cyberspace. They feel comfortable knowing about such “vacation messages” from their spouse or intimate partner and they trust that their spouse or intimate partner will not misuse these IDs. When asked about children who use their parents’ IDs, these respondents gave a cumulative answer that the children use their parents’ IDs for communicating with their parents when they are away from them or communicating with friends of their own age (who are probably using their parents’ IDs in the same fashion) and this is done under the strict vigilance of the parents.
Using Safety Tools and E-mailing Back to Unknown Senders
Of the respondents, 69.9% are aware of the various self-protection tools on the Internet, for example, filtering e-mails, blocking unwanted persons, and locking one’s personal walls, albums, and information in the social networking sites. These individuals have used such options either by learning from their own mistakes or from various safety tips available on the Internet.
Of the respondents, 30.1% do not believe in restricting their e-mails/chat boxes/social networking sites only to known friends and they do not use the safety options; 37% e-mail/message back to any e-mails/messages that they

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receive from unknown sources, including strangers and spammers. These respondents communicate with such strangers more out of curiosity than necessity. Of the respondents, 74% share personal information, such as their home address, telephone numbers, personal favorites, personal pictures, mood swings, opinions about other friends, political parties, nonpolitical events, cinemas, holiday places, children’s school details, and information on spouses’ workplaces and other related information with virtual friends in social networking communities, chat partners, and so on, whom they have never seen in real life, but are in regular contact through e-mails, messages, and phone calls.
On Exercising Free Speech for Communicating in Cyberspace
An awareness of cyberculture also includes the typical way of exercising the right to “free speech” in cyber communications. These communications may include e-mails, chats, the language used for writing on others’ message boards, and writings on community walls or bulletin boards. We found out that only 37% of the respondents believe in exercising the right to free speech in a controlled and measured way. Some of these respondents also exercise similar communicative language when they express their feelings through blogs. Many of these respondents felt that informal communications should be limited to those whom they have known for a long time in real life or close relations, such as siblings and cousins. It is to be noted that the concept of free speech in India* differs from that in the United States and other countries. This stands true even for cyber communications. What could be
“free speech” in the United States† may not be “decent,” “wanted” speech or way of expression in India. However, it should also be noted that 63% of the respondents felt that there is no need to be formal or control speech or expressions in the written form while in the cyber social networking sites or chat rooms or even in e-mails. Some felt that this is an extended version of friendship and a growing relationship and hence the communication should be as informal as it would be in real life between two friends or a group of close friends, even if they do not know each other in real life. Some felt that
* As has been guaranteed under Article 19(1)(a) of the Constitution of India; Article 19(2) of the Indian constitution lays down the grounds for restrictions on the freedom of speech and expression, which are as follows: sovereignty and integrity of India, security of the state; friendly relations with foreign nations, public order, decency of morality, contempt of court, defamation, and incitement of an offense.
† Freedom of speech is guaranteed by the First Amendment to the Constitution of the
United States, which says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” For more information, see http://topics.law.cornell. edu/constitution/first_amendment. 122

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using harsh/teasing/rude/criticizing words will never wound the sentiments of the recipient(s).
Reading Policy Guidelines
The policy guidelines of various cyber communities and ISPs significantly contribute to the cyberculture. Many of these cyber communities have adopted their own policy guidelines to prevent hacking and related economic and sexual crimes, verbal abuse through cyber communications, child abuse, and so forth. The majority of these cyber communities have followed U.S. laws and may take precautionary actions when dealing with any complaints of abuse. In India, several U.S.-based and some Indian ISPs and cyber communities have become highly popular. The majority of the respondents of this study have indicated ISPs such as Yahoo, Gmail, Rediff, and Hotmail and networking communities such as Orkut, Facebook, Myspace, Yahoo groups,
Twitter, and Zorpia as their favorite cyber hangout spaces. Notably, 71.1% of the respondents do not read any policy guidelines before joining cyber communities. It is interesting to note that many of this 71.1% belong to the group of 63% respondents who feel that communication and speech need not be restricted in cyberspace. On the contrary, 28.8% have read the policy guidelines and feel that these policy guidelines are enough to create awareness about cybercrimes, cultures, and norms.
Using Pseudo Names
Of the respondents, 45.2% prefer to use pseudo names especially when socializing through social networking communities or chatting, for various reasons including protecting their own identity; 54.8% do not use pseudo names and do not feel that protecting their privacy or identity by using pseudo names is needed.
Frequency of Cyber Networking
The second part of these findings includes research on the frequency of cyber networking among Indian Internet users. Some of these responses may be included in the first part of these findings, namely, awareness of cyberculture. However, we intend to list them under the title “frequencies” to show how often individuals hang around in these web hubs and how frequently they befriend other chat-room/social networking site partners. Table 7.2 describes the frequency of cyber networking.
The statistical data in Table 7.2 show that among the 73 respondents,
83.6% are highly active in networking through e-mails and social networking sites such as Orkut and Facebook; 15.1% of the respondents are moderately active in socializing through e-mails and networking sites; and 1.4% are least active in cyber socializing. We found that the latter two groups of

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Table 7.2 Frequency of Cyber Networking
High (%)
1.  requency in cyberspace (including e-mailing,
F
socializing through social networking sites, and cyber communities)
2. Frequency in chat rooms
3.  requency in interacting with unknown chat
F
partners

Moderate (%)

Low (%)

83.6

15.1

1.3

71.2
27.4

28.8
71.2

—
1

respondents (moderate and low) use e-mails and social networking sites mainly for business/academic/professional purposes and do not feel as comfortable socializing through cyberspace as those who form the first category (highest). Of the respondents, 71.2% are highly active in chat rooms, whereas 28.8% are moderately active in their preferred chat rooms. These respondents prefer to chat in chat rooms provided by ISPs, such as Gmail,
Yahoo, Rediff, and AOL, and through online chats available on social networking sites such as Facebook and Orkut. However, we found that only
27.4% take the risk of chatting with unknown chat-room participants; 71.2% felt that it was risky to chat with unknown people and they often give a cool response to unknown persons when such persons start a conversation with the said respondents. These respondents, however, feel comfortable chatting with familiar chat-room participants, whom they may have known either in real life or previously through social networking sites; many of them prefer to chat only when such “virtual friends” through social networking sites are known for a minimum of 2–5 months, and these virtual friends have already shared their thoughts and information on community walls and previous e-mail introductions. Of the respondents, 1.4% do not chat with unknown persons.
Knowledge of Being Victimized
We preferred the title “knowledge of being victimized” to illustrate the extent to which these respondents are aware that they have become victimized. Table 7.3 describes the victims’ knowledge of their own victimization.
Table 7.3 shows a mixed response to the awareness of cyber victimization. The survey aimed to cover victimization in e-mails, social networking sites, chat rooms, blogs, and search engines as a whole. It can be seen that
61.6% of the respondents had bad experiences in the social networking sites that they regularly visit to hang out and 78.1% had received obscene/abusive e-mails from known/unknown senders. These groups of respondents had opined that even if they used filters and safety measures, somehow they had been attacked through their e-mails or social networking sites; they also felt

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Table 7.3 Knowledge of Being Victimized
Yes
(%)
Has had a bad experience in social networking sites
Has received abusive/obscene e-mails from known/ unknown sources
Has experienced hacking (either directly or indirectly)
Has experienced cyber stalking
Has experienced phishing attacks
Has been impersonated by e-mail account/social networking profiles/websites, etc.
Has seen their “cloned” profile/e-mail IDs
Has been a victim of defamatory statements/activities involving himself/herself in cyberspace
Has received hate messages in their in-boxes/message boards Has seen morphed pictures of themselves
Has been bullied
Has experienced inflammatory messages from others
Has been victimized by their own virtual friends
Has reported incidents to the authorities
Feels women are prone to cyber attacks

No
(%)

No Awareness
(%)

61.6
78.1

38.4
21.9

—
—

46.6
37.0
50.7
28.3

43.8
49.3
42.5
60.3

9.6
13.7
6.8
11.4

41.1
68.5

46.6
23.3

12.3 8.2

42.5

47.9

9.6

31.5
39.7
43.8
45.2
37.8
74.0

57.5
50.7
46.6
53.4
47.3
26.0

11.0 9.6 9.6 1.4
14.9
—

that they had become accustomed to the idea that cyberspace is a vulnerable place and users are prone to be attacked.
Hacking, Stalking, and Phishing
Table 7.3 shows that 46.6% of the respondents had experienced hacking and they understood that their profile/e-mail ID/web page, etc., had been hacked;
43.8% had never experienced hacking as they continuously take precautionary measures to prevent hacking; 9.6% are not aware if their account has been hacked or how their accounts can be hacked; 37% felt that they have experienced cyber stalking; 49.3% had never experienced cyber stalking; and 13.7% were not aware of cyber stalking. Notably, those belonging to this
13.7% failed to understand the true nature of stalking. Indian laws do not describe cyber stalking. It is unfortunate that the term cyber stalking continues to be neglected in the laws of India. This particular term is not defined or explained in the Indian penal code or the Information Technology Act.
Many respondents construed the term as harassment, like pornography.
This misleading conception about cyber stalking arose because in the few reported cases on cyber stalking in India, the accused was booked under section 509 of the Indian Penal Code (Duggal, 2009). Section 509 speaks mainly about the harm to women’s modesty and privacy and related harassments.

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But stalking is not necessarily harassment alone and cyber stalking does not happen only to women, even though women may form the majority of victims of cyber staking. Duggal (2009) rightly pointed out that the said section does not cover cyber stalking fully. If we analyze the U.S. laws on stalking, the nearest explanation of cyber stalking can be found in the
Violence Against Women and Department of Justice Reauthorization Act of 2005, which amended the Communications Act of 1934 (47 U.S.C. 223(h)
(1)) through section 113 to include the use of any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet for the purpose of “stalking,” annoying, and harassing others as a penal offense. This U.S. provision attempts to explain cyber stalking as follows:
Cyber stalking = following the victim’s internet activities + using digital device, software to create harassing, threatening, abusing mails/messages, etc. + transmitting the said mail to the victim’s in-box and/or victim’s friends or relative’s in-boxes + successfully creating fear, annoyance, irritation harassed feeling in the victim.

In one word, when “following” is added by mens rea to commit harm and it is successfully digitally carried out, we can say that cyber stalking has occurred. Further, this study shows that 50.7% of the respondents understood that they had been victims of phishing attacks; 42.5% stated that they have never been victims of phishing attacks; and 6.8% stated that they were not aware of such attacks. The 50.7% respondents have seen phishing attacks through e-mails. The most common method is being asked to help in acquiring a lump sum of money from a deceased customer/relative, or lottery prize money. The other method is sending fake “Google/Yahoo warnings,” whereby the recipient is asked to provide their name, date of birth, password, country of residence, and so forth, with a warning that if these details are not sent, their Gmail/Yahoo account will be closed. Apparently, these sorts of e-mails had arrived in the respondents in-boxes and they had opened them for further clarification. But this study does not show how many of the respondents had been victims of a phishing attack, thereby losing their money. Those respondents who were never aware of such phishing attacks had not communicated with the sender once they checked the originality of the e-mails from the Internet and also from friends and acquaintances. Of the respondents,
42.5% were already aware of such phishing e-mails and they marked them as “spams” whenever they received such e-mails. These 42.5% never opened these e-mails and from the subject header they understood that these e-mails were “phishing mails.” Of the respondents, 6.8% were never aware of these phishing e-mails and they claimed that they had never received such e-mails or knew anything about phishing.

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Impersonation and Related Attacks
Table 7.3 shows that 28.3% of the respondents are aware of being victimized by impersonated profiles. Impersonated profiles are fake profiles made by an individual using the screen name, personal information, or even a picture of another. The impersonator may use this profile to cheat others. Our respondents either have directly encountered such impersonated profiles through e-mails and social networking websites, or have heard about them from their friends and acquaintances. In their feedback, the respondents stated that these impersonated profiles came up either in the course of socializing through public chat rooms, social networking forums, or even in the guise of fake e-mail IDs, whereby creators of the impersonated e-mail account had taken the name of their friends or even the name of the respondents’ friends. Of the respondents, 60.3% have not encountered such impersonated profiles (even though they know such pranks could be played by others) because they are rarely in cyberspace, they do not use chat options, or they use cyberspace only for professional purposes and do not allow anyone to chat or send any private e-mails/messages or entertain anyone unknown in their personal mailing list; 11.4% have never heard of impersonated profile attacks.
We also surveyed the respondents’ awareness of “cloned profiles.” While in the previous paragraph, we noted the awareness of impersonated profiles of others, this particular statistic shows how many respondents have seen their own impersonated or cloned profiles whereby the harasser misuses the victim’s personal information and contacts. Of the respondents, 41.1% have seen their own cloned profiles in the form of either a social networking profile or an e-mail ID profile or a chat room ID profile. Apparently, these profiles may have been made either by simply creating fake profiles or using the original screen names or even sometimes by data mining from social networking sites. These respondents either saw their cloned profiles themselves or were made aware of them through friends or acquaintances. In much of their feedback, these respondents have also indicated that they had e-mails from cloned e-mail IDs. Apparently, these are proxy e-mail IDs that are often received by e-mail users, with obscene advertisements and so forth.
These respondents felt uncomfortable when they first received or saw cloned or proxy profiles; 46.6% of the respondents have never seen or encountered any such cloned or proxy profiles; and 12.3% are unaware of such occurrences on the Internet.
Defamatory Statements/Bullying and Flaming Messages/
Hate Messages/Morphed Images
Of the respondents, 68.5% had seen defamatory statements about themselves in e-mail messages or community discussions or public chats; 23.3% had not seen such defamatory messages; and 8.2% responded that they were unaware

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of such messages. Interestingly, many of these respondents’ responses were affirmative in receiving bullying and flaming messages and hate messages about themselves in their public profiles or community discussion boards and, as such, they felt that this too added to the defamatory activities against them. Of the respondents, 39.7% have received bullying messages and 43.8% have received flaming messages either in their in-boxes or in their public profiles; 42.5% have seen hate messages either in their in-boxes or in their public profiles; and 31.5% have seen their morphed pictures. Of the respondents,
23.3% indicated that they have not received or seen any such defamatory messages and would not be bothered by such occurrences and 8.2% indicated that they are unaware of any such occurrences. We presume that those who were negative in their response to receiving or seeing such messages/ images and so forth, are well aware of cyberspace culture and they feel this is normal in cyber life and hence do not worry about such cyber-generated disturbances. Victimized by Virtual Friends
Of the respondents, 45.2% felt that they had been victimized by their virtual friends in either or all of the aforementioned ways. These respondents may have befriended these friends-turned-harassers without knowing them in real life or maybe these “friends” never bothered to abide by cyber ethics and have upset the respondents in one or many ways. Of the respondents, 53.4% indicated that they were not victimized by their virtual friends and 1.4% indicated that they have no knowledge of it. We noted that many of those who indicated that they were not victimized by their virtual friends had practiced safe cyber practices, such as not accepting everybody as a friend and accepting only those who are recommended by the respondents’ existing friends; keeping a safe distance from virtual friends; and not exhibiting too much personal information.
Reporting to the Authorities
Among the respondents who are aware of cyber attacks or who have been victims themselves, 37.8% have reported such incidents to the authorities of Gmail, Yahoo, Orkut, or Facebook; 47.3% never bothered to report such incidents; and 14.9% indicated that they do not know how to report and where to report such incidents. We understand that those who reported and those who have not bothered to report may have read the “how to report” columns and other policy guidelines of service providers and those who indicated that they do not know how to report may have never read any policy guidelines regarding reporting. Of these respondents, 74% think that women are prone to attack in cyberspace. We will discuss the victimization of women in cyberspace in a later section.

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Awareness of Legal Rights and Reporting Behavior
In this section, we cover the legal awareness and the reporting behavior of the respondents. Table 7.4 shows the data on the legal awareness of the respondents. As this section deals with the awareness of cyber laws, we need to expand a little on the Indian cyber laws. India is governed by the Information
Technology Act 2000 (which was amended in 2008) for cyberspace-related issues, including several cybercrimes such as hacking, computer-related offenses, offensive communications, violations of privacy, cheating by impersonation, identity theft, cyber terrorism, obscenity, child pornography, transmitting or publishing sexually explicit materials, and breach of confidentiality, and also by the Indian Penal Code. In this section, our aim is to establish how aware laypersons are of certain cyber behaviors that are deemed illegal under both Indian laws and international covenants/rules and regulations and general cyber ethics.
Table 7.4 shows that 80.8% of the respondents are aware that hacking and the creation and distribution of pornographic material are illegal, and 78.1% of the respondents are aware that they have a right to privacy in cyberspace. Only 19.2% of the respondents are aware that cyberbullying, stalking, sending annoying messages, and so forth, can be penalized. This gives the impression that as hacking and pornography-related cybercrimes are often spoken about in the newspapers, on news channels, and by the audiovisual media, including modern IT-related cinemas and daily soaps, many have become aware of these types of illegalities. On the other hand, stalking, adult bullying, sending offensive messages, and so on, are rarely spoken about in public and hence awareness about the illegalities of these types of cyber behaviors is comparatively poor. This survey also shows that when cybercrime happened, 9.6% of the respondents had opted to report the matter to the police. We noted that the reporting behavior of victims improved after cybercrime police stations became functional in almost all the major cities of India. However, 90.4% of the respondents still feel that reporting cybercrime to the police may bring more victimization and hence they prefer not to report such crime to the police.
Table 7.4 Awareness of Rights and Reporting Behavior
Yes (%)
Aware that hacking, creating/distributing pornography, distributing obscene material, and so forth, are criminal offenses
Aware of the legal right to protect their privacy in cyberspace
Aware that cyberbullying, cyber stalking, sending annoying, defamatory messages, and so forth, can be penalized
Has reported incidents of cyber victimization to police/lawyers/courts

No (%)

80.8

19.2

78.1
19.2

21.9
80.8

9.6

90.4

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Cyber Victimization of Women and Awareness
This section is dedicated to research on cyber victimization and awareness of the same on the female respondents. Table 7.5 elaborates the findings.
Table 7.5 shows that among the 60 female respondents, 11.7% had had bad experiences of some sort in cyberspace; 85% had received abusive and obscene messages from known or unknown senders and 16.7% had received repeated e-mails from the same individual/individuals asking to befriend them.
Of the respondents, 50% have received threatening e-mails/messages from ex-partners/husbands and 75% have received sexually teasing remarks in their social networking profiles and/or associated e-mail in-boxes; 48.3% have been victims of hacking; 40% have been victims of stalking; and 43.8%
Table 7.5 Cyber Victimization of Women and Reporting Behavior
Yes
(%)
Experienced bad incidents on the Internet
Received abusive e-mails with sexual images and obscene messages from known/unknown senders
Received repeated e-mails from the same individual/ individuals asking to befriend him/them
Received threatening e-mails from ex-boyfriends/ husbands Received sexually teasing remarks/images in her social networking profile/associated e-mail/message box
Has been the victim of hacking
Has been the victim of cyber stalking
Has experienced phishing attacks
Has been the victim of impersonation
Defamed in cyberspace/in real space due to the cyber activities of others
Has received hate messages
Has been targeted because of her sexuality/feminist ideologies Has been the victim of morphing
Has been bullied
Has been victimized by her virtual friend/friends
Has seen her cloned profile
Feels women are prone to victimization in cyberspace
Feels women’s communities/groups and so on are safe to discuss women’s issues
Has reported victimization
Has reported incidents to police/lawyers

No
(%)

Not Aware of
(%)

11.7
85.0

88.3
15.0

16.7

83.3

50.0

50.0

75.0

25.0

48.3
40.0
43.8
61.7
71.7

41.7
46.7
48.3
26.7
18.3

10.0
13.3
7.9
11.6
10.0

41.7
45.0

46.7
53.3

11.6 1.7

33.3
33.3
40.0
50.0
76.7
38.3

58.3
56.7
58.3
40.0
23.3
60.0

8.4
10.0
1.7
10.0
— 1.7

35.0 8.3

46.7
91.7

18.3
—

—

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have experienced phishing attacks. The survey further shows that 61.7% of the respondents had been victims of impersonation; 50% had seen their cloned profiles; 71.7% had been defamed in cyberspace and also offline due to cyber defamation; 41.7% had received hate messages from various persons; and 45.5% had been targeted because of her sexuality and/or feminist ideologies. Of the respondents, 33.3% had been bullied and 33.3% had seen their morphed images; 40% had been victimized by their virtual friends;
76.7% feel that women are prone to victimization in cyberspace and 38.3% feel online women’s communities are safe for discussing women’s issues; 35% had reported cyber victimization to ISPs, etc.; and 8.3% preferred to report the incident to the police.

Major Findings
• The majority of the respondents do not feel that it is necessary to read the policy guidelines or the terms and conditions of ISPs and social networking websites before entering into a contract with these sites and opening their accounts.
• The majority of the respondents do not mind sharing their profile/ account and password with their spouses and children.
• The majority of the respondents like to participate in virtual socializing; however, many are not aware of spams/phishing e-mails, etc., and often reply to these e-mails out of curiosity.
• Many of the respondents dislike chatting with complete strangers in public chat rooms and they are aware that such chat friends may be fraudulent; many dislike sharing their personal secrets with chat friends. Many of the respondents prefer to chat with people whom they have met and know through the social networking sites and have followed their responses in various posts. Regardless of whether these people have met in real life or not, such chat partners may even exchange their personal e-mails for professional as well as personal purposes. • Several Internet users feel that in cyberspace they need not follow a strict formal rule of communication when in a group or a forum; many such Internet users are unaware of basic cyber ethics.
• The Indian social value system differs from that of the United States and European countries. Serious problems arise in cyberspace when
Indian users try to adopt the Western cyberculture into the Indian social value system; glaring examples are the attack on the modesty of women in typical cyber ways, the use of abusive or harsh language in groups or forums attacking the core social/religious sentiments of other users, and the treatment of the same by Indian laws.

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• Cyber defamation, sending threatening messages, and so forth, are rampant in India. Sexual crimes on the Internet are growing.
• Using bullying words in cyberspace by Indian Internet users is becoming rampant.
• Social networking sites, such as Orkut (maximum) and Facebook, are used to harass women by putting up fake profiles with or without morphed pictures, obscene descriptions, and so on.
• The majority of the respondents do not understand the true nature of stalking.
• The majority of the respondents are aware of hacking but few know how to protect themselves from hacking.
• Impersonating, emotional and financial cheating, victimizing by making cloned profiles in cyberspace, taking revenge through cyberspace for breach of romantic commitments, and so on, are growing in India.
• Many are aware that hacking, sexual crimes on the Internet, economic scams, sending threatening messages, and so forth, can invite legal problems; however, the majority of Indian Internet users are not aware that stalking is an offense that can be prosecuted. Similarly, bullying, sending annoying messages, impersonating and cheating, posting defamatory messages, and so on, are also offenses that can be prosecuted.
• Many Indian users are aware that they have a right to protect their privacy in cyberspace. However, we understand that this “privacy” may indicate their personal lives, financial information, and so forth, and may not include the awareness of the right to privacy and the right to protection against misuse of already exhibited information in their profiles, and so on.
• Very few respondents, especially women, favor reporting victimization to the police as they feel this may bring further victimization; however, many are aware of the reporting options provided by ISPs and social networking websites and some users use these options.
• In cyberspace, women are more prone to victimization than men.
• The majority of women receive e-mails from unknown men with disturbing contents, requests for friendship, and so forth, and such e-mails may be the result of data mining.
• Many women are victims of several types of harassment meted out by their former partners, including former boyfriends.
• The majority of women receive hate messages, sexual/nonsexual teasing remarks, offensive comments, and so forth, because of their feminist perceptions expressed both in blogs and on forum walls; and because of their marital status, profile pictures, profile statements, and so on, which they exhibit on their main profile page.

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Recommendations
Based on the aforementioned findings, we suggest the following recommendations: 1. An awareness campaign must be launched from a grassroots level, such as in schools and colleges, about cyber ethics and probable cybercrimes, such as economic cheating, stalking activities, defamatory activities, and misusing e-mail and social networking websites. 2. The police, social workers, lawyers, and NGOs must be invited to educational institutes, corporate offices, clubs, social awareness campaigns, workshops, and seminars to talk about the legalities and illegalities of cyber conduct among adults of both genders. Reporting of cyber victimization must be encouraged at all levels directly to the police and also to NGOs working for the cause. 3. More stringent laws must be enacted to curb individual victimization in cyberspace. The present Information Technology Act only includes a few sections on cybercrimes; hence, a separate law on cybercrimes should be created. 4. Seminars and workshops must be arranged for police personnel to better understand cyberspace victimization and ensure prompt responses toward the complainants. Legal and academic experts and
NGOs working for this cause must be encouraged to participate in such seminars and workshops.

Conclusion
The scenario of cyber victimization in India needs to be studied in detail.
It is ironic that even though cyber victimization includes the abuse of fundamental rights and gender harassment, hardly any steps have been taken to curb such victimization. The majority of ISPs and social networking sites adhere to Western cybercultures and cyber rules and regulations, which may give rise to opportunities to experiment with personal freedoms, especially the freedom of speech and expression and the right to privacy. In the Indian social value system, some cybercultures may give rise to severe abuse of the fundamental rights guaranteed under our constitution. Mature adult Internet users must understand that what is offensive in real space is also offensive in cyberspace. Cyber socializing has opened the gateway to a global village, which may form its own culture, rules, and ethics. But that in no way should encourage the abuse of personal rights and freedom.

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Limitations
This survey does not intend to cover cyber-generated or cyber-assisted attacks on governments and corporate bodies and child sexual harassment through the Internet. This survey is meant to analyze only the individual victimization of adults and the awareness among adult Internet users about cyber victimization. Due to time limitation, a purposive sampling method was adopted. This study is only a preliminary study; a full fledged study is planned and no generalizations should be inferred on the findings of this chapter. References
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Arabic Muslim Hackers
Who Are They and What Is Their
Relationship with
Islamic Jihadists and Terrorists?

8

ALAELDIN MANSOUR MAGHAIREH

Contents
Introduction 137
White Hackers and Emergence of AMHs
139
AMHs versus Hactwers
142
Relationship between AMHs and Jihadist and Terrorist Organizations 145
AMHs and Fatwas
146
Conclusion 148
References 148
Additional Arabic Sources
150

Introduction
In recent years, the world has witnessed the rapid growth of Middle Eastern terrorist organizations combined with hacking activities and other online offences. Jihadist and terrorist organizations have invested heavily in cyberspace to radicalize and recruit Muslim youth as well as to legitimize their cause and atrocities. Hezbollah, Hamas, and al-Qaeda have established a significant presence online (Shay, 2005; Weimann, 2006). For example, al-Qaeda has maintained its presence in cyberspace pre- and post-September 11 and reinforces that presence by publishing e-journals, e-magazines, and newsletters on different topics in different languages. This has led some commentators to believe that al-Qaeda is the first web-directed guerrilla network (Atwan, 2006).
The danger of influencing or/and recruiting Muslim youth by terrorist and jihadist organizations in the Middle East and beyond is increasing daily as the number of Arabic Muslim netizens increases. Every day, thousands of people in the region join cyberspace. As of June 2010, there were more than 70 million
137

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online Arabic users (http://www.internetworldstats.com). A significant number of these people either create or participate in online hacking forums that inspire their followers to exercise hacking activities and other online offenses.
Therefore, the cyber world faces what I have coined hactwer to describe Rambo
Arabic Muslim hackers (AMHs). The new term hactwer is composed of the initials of the following five words: hacker, activist, criminal, terrorist, and warrior. Hactwers hack websites for glory and leave political messages, break laws, and cooperate with terrorists to wage cyber war against enemy websites.
It is important to distinguish hactwers from AMHs who are not interested in fighting a cyber war or taking part in any kind of hacking activities that are waged in the name of religion or nationalism and other AMHs who are willing and desirous to commit multiple cyber offenses in the name of either Arabism or Islam. Thus, not every AMH is a hactwer as there are a number of hacking forums that prohibit their members from misusing hacking tools or waging attacks on non-Muslim websites. Thus, the term hactwer will be used to distinguish between AMHs who commit or attempt to commit or participate in or facilitate the commission of cyber offences and nonoffenders who are members of the Arabic hacking forums, but they abstain from involving themselves in hacking activities.
Psychologists and other social scientists have investigated the white hackers and cyber terrorists’ characters and motivations; however, hactwers and their relationship with jihadist and terrorist organizations, particularly
Hamas and al-Qaeda, have received no attention in the literature of cyber criminology. Although several studies have been carried out on Muslim hackers associated with al-Qaeda, none of these studies focused specifically on AMHs and their relationship with jihadist or terrorist groups. In most studies on cyber terrorism, cyber jihad, or terror on the Internet, the main focus is on professional hackers who are either full-time terrorists or hackers recruited by terrorist organizations.
This study has located as many as 154 AMH forums, though many of these are temporary, and they may close down or relocate their operation.
The study identifies and examines nine prominent hacking forums. These nine forums are the most popular and populated hacking forums. This chapter focuses on whether and to what extent hactwers cooperate with the known jihadist and terrorist organizations, particularly Hamas and al-Qaeda. Is it fair to say that hactwers are increasingly waging coordinated cyber attacks alongside the real violence conducted on the ground by terrorists? What is the relationship between hactwers and terrorist organizations? What is the influence of the fatwas issued by Muslim clerics on the AMHs?
I visited a number of Arabic hacking websites and subscribed to several hacking forums in order to observe and conduct a survey examining the links and affiliations of the Arabic hackers with the jihadist and terrorist organizations. The survey includes questions about the hackers’ political and religious

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139

perspectives, hacking experience, and fatwa influence. Additionally, I examined face-to-face interviews with hactwers conducted by Arabic journalists.
The observation, questionnaire data, and interviews advance the following hypotheses about the Arabic netizens and AMHs and the conversion to hactwer.
H1: Political and religious tensions are significant factors converting
AMHs to hactwers.
H2: Cyber users who are more religious or have higher levels of religious involvement are more likely to establish jihadist hacking forums.
H3: Cyber users who have a more negative view of non-Muslim websites and their effects on Muslim youth are more likely to be involved in hacking activities and become a hactwer.
H4: Cyber users who hold negative views about the United States are more likely to be involved in hacking activities.
H5: A powerful council of muftis or a scholar is more likely to influence
Arabic hackers than unpopular muftis.
The chapter first examines the white hacker’s history and pinpoints the emergence of the AMHs. It divides the hacking community into two different schools, an old and a new school, and shows that the AMHs belong to the second phase of the new school. The next section identifies AMHs and hactwers and discusses the implications of the conversion of AMHs into hactwers. I then probe the nexus between AMHs and jihadist and terrorist organizations. In the last section, the chapter examines the influence of two contradicting fatwas on AMHs’ hacking activities.

White Hackers and Emergence of AMHs
Historically, the hacking phenomenon can be divided into two different schools, an old and a new school of hackers. The ideologies and behaviors of the hackers in each school are different.
The old school of hackers was informally formed in the 1950s by small, well-known groups of students and professors affiliated to technological institutions in the United States, who acted for nonprofit purposes (Arrieta,
2000; Ross, 2000). In the early days of hackers, the computing and programming industry was not completely integrated into public services or considered a phenomenon worthy of mention in the mass media.
Nevertheless, commentators on the hacking phenomenon have described the first stage of hacking as a “golden era of hacking” (Levy, 1984) and these hackers as “computer virtuosos” (Baase, 2003). Hackers engaged in decoding intricate programs and analyzing computer puzzles. They spent long, lonely hours in front of a little screen learning more about a computer system and then developing it by using their own ideas and techniques (Baase, 2003).

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They were fascinated by the computer system and unintentionally observed an implicit ethical code (Levy, 1984). During this era, a written ethical code of conduct for hackers describing permissible online acts was published in Levy’s
(1984) book titled Hackers: Heroes of the Computer Revolution. The hackers’ code of ethics demonstrated an independent set of principles as well as the first brick in the construction of the hackers’ subculture (Thomas, 2002a; Turkle,
1995). However, hackers’ ethics are not recognized by law enforcement agencies, because they appear to be a virtual code written to justify illegal hacking activities. Nevertheless, most importantly, the old school of hackers did not show any sign of malicious intentions to destroy or interrupt computer systems.
They were driven by intellectual challenge and curiosity. Moreover, none of its members were ever accused of or prosecuted for any criminal offences. On the contrary, most of them have crafted a vast array of software programs, sparking the proliferation of information technologies and Silicon Valley start-up companies. However, the old school of hackers is no longer active.
The new school of hackers, on the other hand, can be divided into two phases, each a new kind of hacker. The first stage of the new school of hackers, spanning from the 1970s to the mid-1990s, was triggered by the widespread use of the PC in developed countries and later by the creation of cyberspace
(Young & Aitel, 2004). The transition of hacking from the innovative exploration of computer systems to unauthorized intrusions and other types of illegal activities motivated by self-interest* was a fundamental shift in the hackers’ subculture (Skorodumova, 2004). The ethical code gradually deteriorated, but in many cases, hackers were applauded by the mass media and described as “white hat” hackers or “heroes of digital culture” (Taylor, 2001).
For example, a hacker who trespassed onto computer systems belonging to wealthy individuals and large corporations and then transferred money to poor individuals and small organizations was depicted as a “digital Robin
Hood” (Tavani, 2004). As more people joined the hacking community, the term cracker was coined by the old school of hackers to distinguish themselves from the criminal hackers (Goodman, 1997).† Scholars and computer experts have described the latter as the dark side of hackers (Lilley, 2002).
It is worth mentioning that there is a growing recognition of the crackers’

* The first hacking activity motivated by self-interest was reported in the early 1970s, when an American student hacked into the Pacific Telephone Corporation’s central computer (Sieber, 1986).
† A white hat hacker is a term used by hackers and the computing community to describe a hacker who is interested in computer security and illegally exploring system vulnerabilities and who would impart information and cooperate with the owner before divulging it to the public. In contrast to a white hat hacker, black hat hackers do not handle security holes sensitively. A cracker, on the other hand, is a controversial term used by computer experts and hackers to describe a hacker with a malicious intent (Tavani, 2004;
Young & Aitel, 2004; Yar, 2005).

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own subculture. The majority of hackers do not show a malicious intention to destroy or interrupt a service, but crackers are driven by malevolent incentives. Crackers believe that cracking activities should not be illegal or immoral (Baird et al., 1987), while hackers walk a delicate line between immoral and ethical hacking (Reid, 1995).
During this era, the political motivations of hacking also began to take new shape. For instance, an American group established the Youth
International Party Line (YIPL), the first American hackers’ organization to adopt a political agenda for cyberspace.* Nonetheless, this phase of hacking witnessed waves of legislation and criminal procedures against the phenomenon (Taylor, 2001). For example, in 1984, the United States enacted the
Computer Fraud and Abuse Act (CFAA). Moreover, several notorious hackers were arrested and brought to trial. In 1987, for instance, 18 hackers from
New York were arrested on charges of illegally reprogramming memory chips in their mobile phones in order to make free calls and, in 1990, Operation
Sun Devil was launched in 14 U.S. cities to crack down on illegal computer hacking activities. This stage in hacking culminated with the maturation of a complete virtual world: websites, organizations, magazines, hacking tools, books, conferences, and the Bulletin Board System (BBS), all supporting various agendas and motivations (Forester & Morrison, 1994).
The second phase of the new school is the new millennium hackers’ school or the hackers of the twenty-first century or the global hackers. The participation of developing countries in this cyberspace world has enriched the hacking subculture. Vast numbers of hackers from the third world have joined the hacking community. They have created innovative hacking techniques, for instance, the “love bug” or “I LOVE YOU” virus was launched from the Philippines (Broadhurst & Grabosky, 2005). However, this new generation of cyber attacks has significantly turned the world’s view against hacking activities. For example, the recent waves of cyber attacks against eBay, Yahoo, CNN, Amazon, and other prominent websites were enough to revise the media and public attitudes to hacking activities.†
The Arabic Muslim hacking phenomenon is in its infancy compared with the established Western hacking community. From observation and the accumulation of facts, it can be presumed that the AMHs’ first emergence was in 2003. They spontaneously started creating their own websites
* In 1973, the YIPL changed its name to the Technological American Party (TAP). It published a newsletter and information about phone freak or freaking—a type of computerrelated crime that is perpetrated by a hacker to exploit telephone systems for the purpose of making free long-distance calls; after TAP terminated, the hacker magazine 2600 was launched. † In 2000, an inept young hacker, known as MafiaBoy, launched DoS attacks against prominent websites including CNN, Yahoo, and eBay, using malware available online
(Schell & Martin, 2004).

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from scratch while mimicking the more established white hackers’ websites, but after gaining more experience and sophistication, hacking forums have become a common place to interact, socialize, and, most importantly, to propagate and defend Islam. In fact, the use of these hacking forums goes way beyond simple socializing, to establishing powerful hacking fronts, and political and religious fronts.
The political front of the AMHs is not a struggle between left- and rightwing tendencies in politics, but spontaneously formed online groups to defend Arabic issues such as the Palestinian case and, recently, to protest against dictatorial regimes in the Middle East and support the Arabic revolutions. They come together, recognize their potential, explore their connectedness, and define their joint associations, and all are interested in working collaboratively to wage cyber attacks against their adversaries.
The religious front takes two forms. The first involves creating and designing websites, blogs, and other web-based application websites, designed and optimized specifically to defend Islam from its enemies. All the prominent hacking forums contain religious sections that teach the members of the group different issues about shariah and some have a jihadist section where the main focus is to wage cyber attacks against non-Muslim websites that pose a threat or are a source of substantial harm to the religion of Islam. The second form is hacktivism and cyber attacks. It is aggressive and is meant to cause harm as well as to protect from harm. It defaces websites and perpetrates different forms of cyber attacks against ideological enemies to revenge or protect Muslims from websites containing harmful materials.
Cyberspace has witnessed a noticeable increase in the number of attacks by Muslim hacker groups who are either associated with terrorist organizations or share a similar ideology with al-Qaeda and other jihadist groups.
The following two sections identify AMHs and hactwers and probe into the relationships between hackers and jihadist and terrorist organizations.

AMHs versus Hactwers
AMHs can be defined as hackers who speak Arabic, believe in Arabism, have
Islam as their religion, present themselves as experts on hacking techniques, and are members of a hacking forum. Meanwhile, a hactwer is an AMH who commits cyber vandalism and hacktivism in the name of religion. I have coined the word “hactwer” to describe these aggressive, politicized Middle
Eastern hackers. “Hactwer” is composed of the initials of the following five words: hacker, activist, criminal, terrorist, and warrior. It is not necessary that the AMHs and hactwers only inhabit the Middle East and Northern
Africa; many are operating in various parts of the world and they range from inexperienced newbies who are keen to learn from hacking websites and find

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out how to defend Islam to highly technical individuals who create hacking forums and direct AMHs to hack non-Arabic websites.
AMHs and hactwers are distinguished from the white hackers in that they are directly impacted not only by political events, such as the war between Israel and Hamas, but also by sectarian clashes and religious tensions. Hence, it is not uncommon to find Arabic Islamic hacking websites designed and optimized specifically to defend Islam from its enemies. For example, the website http://eljehad.netfirms.com was established to defend
Muslim websites, particularly Palestinian websites against Israeli hackers
(see Table 8.1; Maghaireh, 2008). The founder and supervisor of the website, in promoting cyber jihad, writes (translated by the author):
I built this website for my Muslim brothers around the world. It is a gift to everyone willing to devote himself for Jihad and E-Jihad. It is a present to every decent
Muslim who attention is only to use the Internet to raise the religion and to fight the enemies of Allah … this website will guide you to the E-Jihad options.

The observation and survey of the AMHs’ forums clearly demonstrate that a significant number of the members are ready to dedicate their time, effort, and devotion to hacking non-Arabic websites, particularly Israeli websites, because they strongly believe that Hamas is a legitimate organization fighting Israeli occupation. For example, a Saudi hacker who was jailed in
Egypt for hacking and defacing an Israeli website showed no remorse and even planned for more attacks (http://forums.soqor.net). Also, they are willing to defend Islamic websites. Al-soqor, a hacking forum (see Table 8.1;
Maghaireh, 2008), houses more than 149,000 members who show extreme eagerness to defend Islamic websites and the Prophet of Islam against
European newspapers’ publication of cartoons lampooning the Prophet or against offensive websites. For example, an Arab journalist for Garednet, an Arabic online journal, interviewed a notorious Saudi hactwer known as
) for a major profile of his hacking activities. The hactwer
Al-Janah ( proudly admitted that he had hacked non-Muslim websites posting inflammatory materials against Islam (http://forum.z7mh.com/t68709.html).
From the aforementioned, it can be seen that a significant number of the hacking community members can be labeled as hactwers who have committed cyber offences—including criminal access, cyber terrorism, cyber jihad, and cyber war—in the name of Islam and Arabism. However, on the other hand, a great number of hackers are not involved in hacking activities and abstain from involving themselves in illegal hacking activities. They cannot be labeled as hactwers, but can be labeled as AMHs as long as they do not get involved in offensive hacking activities. For example, Pirates Hacking Forum and Arabic Thunder Network prohibit their members from involving themselves in unacceptable hacking activities against others (see Table 8.1).

51,000

244,000

No data available 27,000

161,000

5,500

149,000

No data available Pirates Hacking Forum

The Storm Hacking Forum

Proponent of Electronic Jihad

Arabic Thunder Network

Black Scorpion Forum

Falcon Hacking Forum

Egyptian Hacking Intelligence
Agency (EHIA)

Arabic Hacking Organization

600

165,000

International Hacking Forum

No data available No data available 539

No data available No data available No data available 54,000

4,400

Active
Members

Total
Members

Name

http://www.eljehad.netfirms.com

http://www.soqor.net

http://www.n-0-n.com

http://www.sa3eka.com

http://www.arhack.net

http://www.al-ansar.virtue.nu

http://www.3asfh.net

http://www.alkrsan.net

http://www.vbhacker.net

Web Address

Table 8.1 Most Prominent AMH Forums and Their Hacking Orientation

Yes

Yes

Unknown

No

No

No data

Unknown

No

Yes

Supports
Hamas

No

No

Unknown

No

No

Yes

Unknown

No

No

Supports al-Qaeda Hacking Activities

Hacking Israeli and antiMuslim websites
Hacking Israeli and antiMuslim websites

Prohibits cyber-sectarian, no indication that it supports attacks against Israeli websites Hacking anti-Muslim websites

Prohibits cyber-sectarian

Prohibits hacking non-Muslim websites Prohibits hacking Arabic websites Hacking is a sort of jihad

Prohibits cyber-sectarian

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Relationship between AMHs and Jihadist and Terrorist Organizations
Two types of relationships between hackers and jihadist and terrorist organizations can be differentiated: a direct relationship in which a terrorist organization coaxes hackers to join its cause and wage cyber attacks, propaganda, and other psychological operations; and an indirect relationship in which the AMHs work either individually or together to help and support terrorists and jihadist causes. Both the observation and questionnaire approaches revealed that none of the prominent hacking forums maintain a direct relationship with Hamas or al-Qaeda, except one, the Proponent of
Electronic Jihad forum, which maintains some sort of direct relationship with al-Qaeda as its members expressly engage to dedicate their time and effort to support al-Qaeda online. Meanwhile, seven of the prominent hacking forums, except Pirates Hacking Forum and Arabic Thunder Network, sustain an indirect relationship with Hamas. These forums condone cyber attacks and use significant portions of their sites to teach and ignite members to hack
Israeli websites and proudly post tens of stories of cyber attacks against Israeli and Western websites. However, none of these forums has posted messages of sympathy or support for al-Qaeda. I have noticed that none of the AMHs who responded to the questionnaires are sympathetic to al-Qaeda.
The members of these groups are more likely to establish a direct relationship with cyber terrorists or be more susceptible to recruitment by jihadist and terrorist organizations. Hence, it is possible that the indirect relationship observed between the AMHs and terrorists might develop into an intimate and interactive collaboration. Thus, there is a great likelihood that terrorists might recruit or coerce hackers to carry out a part of their activities online
(Serio & Gorkin, 2003). Recent history has provided several examples of how
AMHs become affiliated with terrorist organizations. For example, Irhabi
007, meaning Terrorist 007, Younis Tsouli, hacked into American university computers, propagandized for the Iraqi insurgents led by Abu Musab al-Zarqawi, and taught other online jihadists how to wield their computers for the cause (von Knop, 2008).
However, in general, the relationship between the AMHs and terrorist organizations is weak and uncertain. In most cases, they do not share the same ethical values as the terrorists, although they do share the religion, ethnicity, and some general principles of the jihad duty. For example, different hackers’ forums are decorated with Islamic motifs and jihad slogans and some hackers use jihadist photos as their profile pictures. However, the vast majority of AMHs are sympathetic to the Palestinian cause and are willing to work hard to shut down or deface Israeli websites. For example, the Moroccan Hacking Organization website provides its members with

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comprehensive instructions on how to hack and sabotage Israeli websites
(http://www.h4ck-mks.co.cc/vb/showthread.php?t=1840). In a similar manner, the Egyptian Hacker Intelligence Agency (EHIA) has established a website encouraging AMHs to join the EHIA to defend Islam and wage e-jihad against Israel (http://eljehad.netfirms.com). The EHIA has set as a priority to unite the AMHs groups with the objective of forming an army of hackers to attack Israel and protect Palestinian websites. The observation and survey have come to support the conventional viewpoint that “numerous cyber attacks have been attributed to hackers affiliated with terrorist organizations or sympathetic to terrorist cause” (Himma, 2007).

AMHs and Fatwas
A fatwa is a religious verdict, given by a knowledgeable (qualified) person (mufti), a council of muftis, or a scholar of distinction on subjects connected with shariah (Hasan, 2006), on a troubling religious issue that has only recently emerged in Muslim society (Kamrava, 2006). For this reason, every Muslim country has a mufti or a council of scholars who is appointed by the government to issue a fatwa on an emerging matter and to consider whether the matter is Islamically acceptable or not. For example, in Egypt, the Al-Azhar Al-Sharif is responsible for issuing fatwas. In
Saudi Arabia, the official Council of Senior Scholars headed by Sheikh
‘Abd Al-’Aziz Ibn ‘Abdallah Aal-Sheikh issues fatwas. However, it is worth mentioning that not all fatwas are issued by authorized muftis or scholars. Several notorious fatwas have been issued by illegitimate authorities.
In 1998, for example, a fatwa issued by Bin Laden and four other Islamic radicals called on Muslims to kill Americans and steal their money whenever and wherever they find it. Although this fatwa has been rejected by the majority of the Muslim community, it has ignited acts of terror that have resulted in massive loss of life. However, when a respectable mufti council, such as the Al-Azhar Al-Sharif in Egypt, issues a fatwa, this fatwa is greeted both in Egypt and among Muslim communities throughout the world. In July 2008, the Al-Azhar Al-Sharif issued a remarkable fatwa condoning cyber attacks against infidels’ websites. The fatwa stated that “Cyber Jihad is religiously permitted because it is a digital weapon used against the enemy of Islam who are defaming Islam, the prophet Mohammad, and Muslims … .”
According to this fatwa, hacktivism is legitimate and perceived as a sort of jihad against the enemy of Islam (Maghaireh, 2011). This fatwa is too broad and motivational a tool for Muslim youth because it includes any website that a Sunni Muslim hacker might consider an adversarial website. Indeed, because the fatwa was issued by a powerful mufti, the fatwa converted

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thousands of AMHs to hactwers as four forums condoned cyber attacks. The fatwa of Al-Azhar Al-Sharif may have ignited what can be termed cybersectarian conflict. For example, in September 2008, Sunni hackers attacked more than 300 Shia websites, including the main website of the Grand
Ayatollah Ali al-Sistani (http://news.bbc.co.uk/hi/arabic). A group of Shia hackers called the “Shia Digital Security Team” responded by attacking more than 77 Sunni websites (translated from http://www.saudiyatnet.net). The fatwa also motivated a Saudi hacker, known as “snipper Haks,” to hack and bring down more than 55 Dutch websites, responding to a video defaming the Prophet of Islam produced by Geert Wilders (translated from http://www. arabianbusiness.com/arabic/516279), a Dutch politician and the leader of the
Party for Freedom (http://en.wikipedia.org).
The AMHs continuously attack nonbelievers’ websites, such as the
Arabic atheist website http://www.ladeenyon.net, which has been repeatedly attacked. A member of the Arabic atheist “ladeenyon” commented that,
Al-Mujahedin cyber attacks against our website didn’t stop since it was built, killing and sabotage on the earth and Internet, they are not professional but to kill and corrupt, they believe themselves to be intellectually superior, but they are not because they use what they believe to be the tools of the infidels, hacking programs … the website will survive. (Translated by the author from http://www.forum.3almani.org) In April 2009, Sheikh Saleh Al Fozan, a member of the Saudi Higher
Council of Clerics, issued a contradictory fatwa against hacktivism, forbidding hacking activities against Israeli websites (http://www.lojainiat.com).
Although, his fatwa has been the subject of intense debate on Arabic cyber world blogs and has been condemned by the majority of cyberspace users, the fatwa is of enormous importance within a particular small group of the
AMHs and Internet users because it was issued by a higher religious figure who plays a significant role in the Saudi Arabian community. For example, two hacking groups, Pirates Hacking Forum and Arabic Thunder Network, have been affected by the fatwa. However, this fatwa contradicts several previous fatwas issued by different scholars permitting and praising Muslim hacking activities against Zionist and missionary websites as well as against the Al-Azhar Al-Sharif’s fatwa.
The harmful effects of the first fatwas are twofold: They radicalize the
AMHs and encourage Muslim Internet users to learn hacking techniques, and commit different forms of cyber vandalism, cyber terrorism, cyber jihad, and cyber crimes, such as hacking; the distribution of viruses, Trojans, and worms; cyber defamation; and denial of service (DoS) attacks (Andrews,
2005). The fatwa creates a new platform that then creates fertile ground for cyber extremist fundamentalist individuals (hactwers) and groups.

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Conclusion
Cyberspace creates a unique environment for the AMHs and terrorists to interact, work directly or indirectly together, and learn from each other. The risk of recruiting hackers to work with terrorist organizations is growing remarkably fast. The Islamic world has populated cyberspace and opened up websites propagating Islamic rhetoric and ideology. Some of these websites are established to defend Islam and teach hacking techniques to Muslim youth. Unfortunately, the growing Muslim presence in cyberspace has been accompanied by contradictory fatwas, a prevailing fatwa that has affected cyberspace negatively and incited the AMHs to commit cyber vandalism, and an unpopular fatwa that condemned cyber vandalism against Israeli websites. Thus, it is not uncommon to find that Islamic and non-Islamic websites have been hacked and vandalized by the AMHs. The problem does not stop here; the attacked websites retaliate by counterattacking and may increase their activities, which are abhorred by Muslims and create a hostile environment. Cyberspace requires the Arab world to enact comprehensive and rigorous anti-hacking strategy policies and regulations, and the government must restrict and observe the religious fatwas. Furthermore, traditional laws must be evaluated and adjusted as required, to facilitate law enforcement efforts to prevent the growing link between the AMHs and terrorist organizations.

References
Andrews, J. (2005). Understanding TCP reset attacks. http://kerneltrap.org/node/3072
(accessed March 7, 2011).
Arrieta, S. (2000). Hacker Categorized. MSC Institute of Technology.
Atwan, A.-B. (2006). The Secret History of Al-Qa’ida. London: Abacus.
Baase, S. (2003). A Gift of Fire: Social, Legal, and Ethical Issues for Computer and the
Internet. Upper Saddle River, NJ: Prentice Hall.
Baird, B. J., Baird Jr., L. L., & Ranauro, R. P. (1987). The moral cracker? Computer &
Security, 6(6), 471–478.
Broadhurst, R., & Grabosky, P. (2005). Computer-related crime in Asia: Emergent issues. In R. Broadhurst & P. N. Grabosky (eds), Cyber-Crime: The Challenge in
Asia (pp. 1–9). Hong Kong: University of Hong Kong Press.
Forester, T., & Morrison, P. (1994). Computer Ethics: Cautionary Tales and Ethical
Dilemmas in Computing. Boston, MA: Massachusetts Institute of Technology.
Goodman, M. D. (1997). Why the police don’t care about computer crime. Harvard
Journal of Law & Technology, 10, 465–469.
Hasan, N. (2006). Laskar Jihad: Islam, Militancy, and the Quest for Identity in PostNew Order. Ithaca, NY: Cornell Southeast Asian Studies Program.
Himma, K. E. (ed.) (2007). Internet Security: Hacking, Counter Hacking, and Society.
Sudbury, MA: Jones and Bartlett.

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Kamrava, M. (2006). The New Voices of Islam: Reforming Politics and Modernity: A
Reader. London: I. B. Tauris.
Levy, S. (1984). Hackers: Heroes of the Computer Revolution (1st edn). New York:
Nerraw Manijaime/Doubleday.
Lilley, P. (2002). Hacked, Attacked, and Abused: Digital Crime Exposed. London: Kogan.
Maghaireh, A. (2011). Fatwa chaos ignites cyber vandalism: Does Islamic criminal law prohibit cyber vandalism. In K. Jaishankar (ed.), Cyber Criminology:
Exploring Internet Crimes and Criminal Behavior (pp. 347–357). Boca Raton,
FL: CRC Press.
Maghaireh, A. M. (2008). Shariah law, cyber-sectarian conflict and cybercrime: How can Islamic criminal law respond to cybercrime? International Journal of Cyber
Criminology, 2(2), 337–345.
Reid, K. (1995). Computer Hackers Wrestle with Often Ambiguous Morals of
Cyberspace. Knight Ridder/Tribune News Service, August 23, 1995.
Ross, A. (2000). Hacking away at the counter-culture. In D. Bell and B. M. Kennedy
(eds.), The Cybercultures Reader. London: Routledge.
Schell, B. H., & Martin, C. (2004). Cybercrime: A Reference Handbook. Santa Barbara,
CA: ABC-CLIO.
Serio, J. D., & Gorkin, A. (2003). Changing lenses: Striving for sharper focus on the nature of the ‘Russian Mafia and its Impact on the Computer Realm’.
International Review of Law Computers, 17(2), 197.
Shay, S. (2005). The radical Islam and the cyber jihad. In M. Last and A. Kandl (eds.),
Fighting Terror in Cyberspace. World Scientific.
Sieber, U. (1986). The International Handbook on Computer Crime. New York: Wiley.
Skorodumova, O. (2004). Hackers as information space phenomenon. Social Sciences,
35(4), 105–113.
Tavani, H. T. (2004). Ethics and Technology: Ethical Issues in an Age of Information and
Communication Technology. Hoboken, NJ: Wiley.
Taylor, P. (2001). Hacktivism: In search of lost ethics. In D. S. Wall (ed.), Crime and the Internet (pp. 59–73). London: Routledge.
Thomas, D. (2002a). Hacker Culture. Minneapolis, MN: University of Minnesota Press.
Thomas, D. (2002b). New ways to break the law: Cybercrime and the politics of hacking. In Y. Jewkes & G. Letherby (eds), Criminology: A R eader (pp. 387–398).
London: Sage.
Turkle, S. (1995). Life on the Screen: Identity in the Age of the Internet. New York:
Simon & Schuster. von Knop, K. (2008). Institutionalization of a Web-focused, multinational counterterrorism campaign—Building a collective open source intelligent system—A discussion paper. In Centre of Excellence Defence Against Terrorism, Ankara,
Turkey (ed.), Responses to Cyber Terrorism (pp. 8–23), NATO Science for Peace and Security Series—E: Human and Societal Dynamics (Vol. 34).
Weimann, G. (2006). Virtual disputes: The use of the internet for terrorist debates.
Studies in Conflict and Terrorism, 29, 623–639.
Yar, M. (2005). Computer hacking: Just another case of juvenile delinquency? Howard
Journal of Criminal Justice, 44(4), 387–399.
Young, S., & Aitel, D. (2004). The Hacker’s Handbook: The Strategy behind Breaking into and Defending Networks. New York: Auerbach.

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Additional Arabic Sources http://www.lojainia http://kerneltrap.org/node/3072 (accessed November 23, 2007).
[A dangerous Saudi hacker prosecuted in Egypt].
Retrieved on December 11, 2010, from http://forums.soqor.net/a-t9958.html.
[Moroccan Hacking Organization]. Retrieved on March 3,
2011, from http://www.h4ck-mks.co.cc/vb/showthread.php?t=1840.
[An exclusive interview with the second prominent
Saudi hacker]. Retrieved on March 3, 2011, from http://forum.z7mh.com/ t68709.html. Sexual Harassment over Cell Phones
A Survey of Women in Dhaka City

9

UMMEY QULSUM NIPUN

Contents
Introduction 151
Defining Sexual Harassment
152
Sexual Harassment Using Cell Phones: Talking, Text Messages,
Picture Messages, and Voice Messages
153
Who Are the Abusers and What Is Their Motivation?
154
Driving Forces To Consider This Issue around the World
155
Methods 158
Study Area, Sampling, Tools, and Respondents
158
Quantitative Analysis and Results
160
Qualitative Analysis and Results
164
Other Significant Findings
165
School Teens: Prime Victims
166
College/University Students: Courageous Ones
167
Young Professionals: Vulnerable Ones
168
Impact of Victimization
168
Discussion and Conclusion
170
References 173

Introduction
The cell phone has become an integral part of our daily lives. It reduces the need to travel, helps us to better manage our time, and makes all types of transactions smooth and easy. This small device brings the world closer to us so that everything is within our grasp. With the advent of new technologies in mobile communications, the cell phone is now being used for e-mailing, chatting, and blogging. Various multimedia options are now being installed in cell phones, such as music players, 3D games, and video players.
151

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Nevertheless, we can probably all agree that pros and cons go hand in hand. Apart from offering endless benefits, the cell phone also creates opportunities to commit crimes. Hence, it is of the utmost importance that we become aware of the risks associated with cell phones. These risks range from irritating calls or blank calls to blackmail or even virtual sexual assault. These types of harassment have an appalling impact and repeated sexual harassment using cell phones remains under the cover of a virtual web network of communications. It can affect victims’ physical and mental health and make their personal, social, and professional lives uncomfortable. This situation has underscored the urgency of taking bold steps toward preventing the use of cell phones for sexual harassment. Unfortunately, in Bangladesh, this area is still off the political radar and, to date, no comprehensive study has been done on this issue. While analyzing this issue from a research perspective, this chapter asks (a) Who is using cell phones unethically? (b) Who are the victims of sexual harassment via cell phones? and (c) What are the adverse impacts of cell phone sexual harassment on a victim’s social life? The answers to these questions address the situation through appropriate case studies that have been collected by an extensive field survey.
The harassment of women by making sexually explicit advances through cell phone conversations or any other communication tool has become common in the Western world. It has not yet been reported on a great scale in the
Asian region and it is lowest among the countries of South Asia and beyond.
Such intimidation can start when a girl picks up a phone call and becomes worse if the caller delivers sex-related jokes and words after hearing the girl’s voice over the phone. The caller often uses swear words and is gratified if the girl slams down the phone. The caller may keep calling until the girl picks up the phone again or switches it off. However, this is not the end of the incident as odd messages and pictures of sexual organs may start to reach the girl’s cell phone and she may be too embarrassed to tell anyone. Someone who faces such intimidation may go through severe psychological agony. This is also a very sophisticated area, where there is a need for more basic data and case study material on how girls and women suffer from the adverse impact of sexual harassment over cell phones, on the differential impacts of such activities, and on the possible ways of helping them through the trauma caused by it. This chapter advises the creation of more comprehensive awareness on this sophisticated issue through extensive research to explore ways of providing a sound basis for policy implementation as an effective solution.

Defining Sexual Harassment
Business & Legal Reports Inc. (2005) described sexual harassment as unwelcome sexual advances or requests for sexual favors, or verbal or physical

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conduct of a sexual nature, or the display of material perceived as unwelcome.
The Department of Social Development, South Africa, in their Sexual
Harassment Policy, 2008, defined sexual harassment as unwanted or unwelcome sexual tendencies, and a request for sexual favors that have a negative effect on the recipient. It can range from inappropriate gestures, innuendos, advances, suggestions or hints, to touching, comments, statements and/ or remarks without consent and, at worst, rape. Sexual harassment creates an intimidating, hostile, and offensive environment (Department of Social
Development, 2008). The International Trade Union Confederation (April,
2008) defines sexual harassment as unwanted, unwelcome, and unasked-for behavior of a sexual nature. It can occur either on a one-time basis or as a series of incidents. Sexual harassment is coercive and one-sided, and both males and females can be victims (ITUC, 2008). The U.S. Supreme
Court defined sexual harassment precisely as a form of sex discrimination
(Ford & Donis, 1996). It was defined as unwanted and unwelcome verbal or nonverbal behavior of a sexual nature that links academic or professional status to sexual favors or that hinders the work or learning process
(Wood, 1997).
With technological development or other changes of the modern era, the modes of and approaches to sexual harassment have acquired new dimensions. Apart from eve-teasing, harassment can also be carried out through the Internet and cell phones. According to the Supreme Court of
Bangladesh High Court Division, Special Original Jurisdiction (2010), the definition of ‘Eve teasing’, is as follows: “Eve teasing is a euphemism used in India, Pakistan, Bangladesh and Nepal for public sexual harassment or molestation of women by men.” This chapter focuses on the various ways of sexual harassment using cell phones. Text messages containing sexually explicit words, picture messages with nudity, prank calls, and, most importantly, blackmailing via cell phones are considered as sexual harassment in this study.
Sexual Harassment Using Cell Phones: Talking, Text
Messages, Picture Messages, and Voice Messages
The cell phone is now frequently used for talking, sending text messages/ short message service (SMS), taking pictures, sharing information and documents (as a substitute for the flash drive), entertainment, Internet browsing, and much more. All of these functions create opportunities for the misuse and abuse of this small device of communication as it can be used to send messages of a sexual nature, sex jokes or to make blank calls and take pictures for future communications. All these behaviors come under the definition of sexual harassment because all are unwelcome, unasked for, and unwanted by any cell phone user.

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Then come the issues of call charges, bonuses, tariff-free options, and cash-back offers that promote the infraction of cell phone etiquettes. All mobile companies operating in Bangladesh offer the lowest call charge after midnight. Surprisingly, they also offer some ridiculous options to increase the sales of their SIM cards. For example, if you purchase a SIM card from company “X,” you will get 500 SMS free or 150 min free talk time or even
150 Taka (Bangladesh currency) instant cash back. These types of offers encourage offensive behaviors. This seems to be the main reason that sexual harassment via cell phones has become very common. Most cell phone users hold more than one number in order to take advantage of the minimum call rate of particular companies. Additionally, cell phone companies’ registration systems are not sophisticated enough to trace the subscriber or monitor a particular subscriber for future reference. Lenhart (2010) explained that teenagers are the group who usually send and receive nude picture messages.
Who Are the Abusers and What Is Their Motivation?
Rape is considered a sexual offense, but in reality the issue of treating someone in a way that they are not comfortable with should also be considered sexual harassment. Promoted by the thinking of Katherine Franke (1997), it can be said that sexual jokes, flirting, dating, and teasing playfully in sexually explicit ways can also be considered sexual harassment. In addition, some verbal exchanges, such as discussions on conjugal life and relationships, sexual dissatisfaction, regret, etc., are not always welcome and this is a good example of the kind of sexual harassment that falls outside its regular definition (Franke, 1997). The cell phone is a means of conducting all of these behaviors without effort, which can be disseminated easily to hurt others.
In this regard, Franke raised the vital question of whether anyone should be held accountable for sexual harassment because he/she created an unpleasant situation or uttered sexually suggestive words (Franke, 1997). So, observing the appalling consequences of harassing behaviors using technological tools that never keep any evidence, this should be considered a criminal offence.
All of these give society good reason to consider the intent and effects of sexually harassing behavior over cell phones. It is obvious that the “Sexual
Harassment Law,” “Gender Equity Policy,” and so on, have not been very successful in preventing this harmful behavior. Considering all of this,
MacKinnon proposed the dignity theory to redefine the term harasser from the gender perspective. This theory exaggerated the causal significance of sexual conduct in explaining the subordination of women, thereby discouraging coercion, threat, intimidation, insult, humiliation, etc., through different activities, attitudes, and gestures toward a female. MacKinnon termed this dignitary injuries, harmful to an individual’s identity (MacKinnon &
Siegel, 2004).

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Kinnear (2007) discovered certain visible, clinical identifications of abusers: denial, sexual arousal, sexual fantasy, social skills, cognitive distortions, and other psychological and social problems. According to
Kinnear (2007, p. 7),
Many perpetrators deny that they are abusing anyone or deny that what they are doing is sexual abuse. Most perpetrators also are sexually aroused by children. Sexual fantasies have been suggested as a behavior characteristic of abusers; although its significance remains unclear, many researchers believe that the role of sexual fantasy should be considered.

It can therefore be said that women are raped and sexually harassed because of gender inequality and the institutions that support the notion
(Conte, 2002). Sexual harassment is a behavior that is perpetrated by those who have reason to believe that they are unlikely to suffer any negative consequences for their crime. Most scholars and activists agree that rape and sexual harassment are crimes of power and domination. While most power relations in our society are gendered (i.e., men as a class have power over women as a class), there are powerful people in both genders—the power dynamics and consequences are similar regardless of the victim’s gender, race, ethnicity, social class, sexual orientation, age, or ability/disability (Rozee, 2000).
Driving Forces To Consider This Issue around the World
The cell phone provides people with the excellent option of virtual communication. With this device, one can always be in touch with his/her family and maintain regular communication. In Bangladesh, the total number of cell phone active subscribers reached 75.484 million by the end of May 2011
(BTRC, 2011). This shows the rapid growth in the rate of cell phone usage in the country.
As in other countries around the world, the younger generation of
Bangladesh is strongly fascinated with this technology. Most of them now own a cell phone or have access to a cell phone and consider it a fashion accessory. The cell phone has also changed the communication pattern of our young generation, that is, text messaging. Additionally, the cell phone is highly appreciated by parents as they can easily trace their children when they are not at home. Children also feel much safer and secure as they can communicate with their parents as and when necessary. Therefore, it is equally important that parents acquaint their children with the use of cell phones in their daily activities.
The Harris Interactive study (2008) found that in the Western world, the young generation carry their cell phones to access friends, family, and current events, and their activities range from text messaging to talking and

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logging on to social networking sites (Facebook, Twitter, Messenger, etc.).
This study explored the fascination of the younger generation in using a cell phone. From this study, it has been found that in the Western world, the cell phone is an active instrument for exposing the personality of teenagers and establishing their social status (Harris Interactive, 2008). In addition to the cell phone, operating companies are now trying to attract the young generation with many lucrative offers, such as cash back on cell phone recharge and all-night zero call charges. Thus, youths are inspired to carry more than one cell number to attain all the free services and facilities offered by the cell phone companies. Eventually these extra services or free offers from the cell phone service providers allow a group of people to execute their sinister plans to harass girls and women. Additionally, such motives are responsible for creating social tensions and sexual harassment over cell phones. Marion
(2010) rightly mentioned that new technology opens up opportunities for new crimes.
Such incidents are now being increasingly covered by the media in South
Asia as several have taken place in recent times (South Asia Times, 2009;
AsianFanatics Forum, 2009). For example, Asia Media Forum of Karachi,
Pakistan, reported an incident involving the Pakistani journalist Maheen
Usmani, who explored the reasons for considering a telephone call as sexual harassment. From her perspective, sexual harassment over the phone started when her superior called her late at night and launched into “suggestive talk” and lots of “innuendoes and told her to give him a call any time of the day or night.” After that, she had no option but to resign from her job. Thus, sexual harassment in the workplace turned to sexual harassment over the cell phone. According to South Asian Women in Media (SAWM)-Pakistan, a network of female media professionals, sexual harassment via a cell phone had never been reported in Pakistan until the incident with Maheen came to light and no one could even imagine this type of victimization, which is unlike the usual forms of sex crime (South Asia Times, 2009). SAWM-P has received four or five such complaints and found a group of people in
Pakistan who did not consider such behavior (sexual harassment through telephone conversation) important enough to report. Rather they tried to accuse women, arguing that a decent woman should not receive phone calls from unknown callers, especially objectionable calls (South Asia blog, 2011).
But these people failed to perceive that these situations cannot be anticipated.
Regarding this situation, the head of the Alliance Against Sexual Harassment
(AASHA), Fouzia Saeed, said that the alliance is determined to raise sexual harassment as an issue to seek policy and legislative protection and “turn the tables on harassers and put them under the spotlight, rather than the women getting the stigma” (AASHA, 2010).
In Egypt, sexual harassment via a cell phone is not an unusual phenomenon (The New Egypt, 2010). The calls range from minor inconveniences to

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persistent, threatening behavior that becomes a major source of frustration for Egyptian women. In frustration, they do switch off their phones, but the perseverance of the harasser takes the form of love messages, persistent calls, and so forth. Victims of such behavior also informed their guardians but they seemed helpless in tackling this psycho-social problem. It has been found that the age of the victims in Egypt ranges from 20 to 50 years and the forms of such harassment are very similar to those in other regions of the world, which proves that the cell phone has become the most common tool for sexual harassment.
In addition to, similar incidents have been reported by victims in Hong
Kong and, in some cases, it was possible for law enforcers to take immediate action. The Asian Human Rights Commission (2011) also reported that they received complaints about sexual harassment at the workplace in South
Korea, but such harassment was not committed using a cell phone.
In Bangladesh, this issue is now being considered more seriously by society. Harassment over cell phones is a frequently discussed topic in Bangladesh.
Several reports, articles, and letters have been written in newspapers, blogs, and many other public forums about young people’s entanglement with these technologies (Raisa, 2011). Selim Mahbub, an engineer, commented in an editorial about e-stalking published in The Daily Star (2010):
Mobile phone has been playing a vital role in the development of communication systems in the country. Nevertheless, some are using this technology in unethical way as a suitable and safe media to fulfill their evil desire. It is a kind of violence against women and in most cases, victims do not or cannot disclose it to others. As a result people having lustful desire to take the benefit of the mobile technology.

It has been observed that there is a great similarity in sexually explicit behavior over cell phones between Bangladesh and other countries, including Western countries. In addition to the alluring offers of cell phone service providers, handset manufacturers are also coming up with new technologies and facilities for the youth of Bangladesh. These smart phones make it very easy for youngsters to indulge in sexual harassment through cell phones. Handset manufacturing companies like Nokia, Samsung, LG, Sony
Ericsson, and many more are now competing with each other to attract the younger generation by installing such devices as video cameras, Bluetooth, and Internet services. These multidimensional facilities may also result in some negative outcomes and can create certain risks if not used responsibly.
It has also been considered that building virtual relationships among teenagers has become very common only due to the ease of mobile communication.
Therefore, it can be said that as girls are the direct victims of bullying through cell phone, mostly in the form of sexual harassment, this must be treated as a

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sexual offence. This most pressing issue needs to be empirically analyzed and the current study is an effort in this direction.

Methods
The target group of this study were women from Dhaka city. This study extensively analyzes the experiences shared by the respondents, who were of different age ranges, marital statuses, and educational backgrounds. This research has tried to investigate the extent of sexual harassment over the cell phone, how it varies among the different age groups, and what the apparent impacts of this issue are. The analysis was concentrated on females as they are the prime victims of such harassment. For this purpose, a survey was conducted on three different age groups, namely school-going girls (age group 13–16), college/university female students (age group 17–24), and young professionals (age group 25–30). The respondents were from different socioeconomic backgrounds: students, housewives, and office workers.

Study Area, Sampling, Tools, and Respondents
The study area for this research was Dhaka city and according to the Statistical
Yearbook 2001, the total population of Dhaka district is about 8.5 million
(8,511,228), of which 45% is female (about 3,798,898) (Bangladesh Bureau of
Statistics, 2010). If we consider the area under the jurisdiction of Dhaka city corporation (urban and semi-urban zone), its population is about 5.4 million
(5,327,306) of which the female population is about 2.3 million (2,308,176).
As no census has been taken of the adult female population of Dhaka city, it was not possible to cover the minimum percentage of the total female population for this research.
The simple random sampling method seemed to be the most convenient method to use, considering this huge population. In choosing the respondents, the age groups were presumed on the basis of the problem statement. Marital and occupational statuses were also considered, while the respondents were randomly selected from 10 schools, 10 colleges/universities, and 10 different institutions, that is, banks, public service offices, life insurance companies, corporate houses, international and national organizations, research institutions, and so on. Girls studying in schools were selected both from public and privately owned institutions. In choosing schools, the medium of study instruction (Bengali and English) was also considered as it has been perceived that, in Bangladesh, students from English-medium schools are much more technology oriented and mainly use cell phones to maintain an active social network. To own a cell number rather than using the family number

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is considered a token of status to some of the students. It has also been perceived that most victims of virtual harassment are young girls and women rather than older women. That is why this research assumed that the selected respondents of different age groups would represent the rest of the females in
Dhaka city (Table 9.1).
An open-ended questionnaire was designed on the basis of the research questions stated earlier. Twenty-eight questions were asked regarding the problem statement. After an introductory discussion on this issue for rapport building, respondents were asked about cell phone behavior and about their feelings while receiving harassing calls both from known and unknown numbers. They were asked about the following details: Do you have your own cell number? Why do you carry more than one cell number? What are the possible ways of getting your personal number publicly disseminated? When do you feel harassed through cell phone behavior (message content or caller’s talk)? How frequently do you receive odd/blank messages and phone calls? For how long have you been receiving such calls or messages (weeks/months/years)? Could you ever find out the identity of the caller? How do you react to such calls and messages?
How do you feel after experiencing blank calls and obscene messages? Have you ever made a complaint? If yes, then to whom? Have you ever noticed someone trying to harass others over the phone? Could you determine the age range or social or family status of the person making such obnoxious calls over the cell phone? How can this type of behavior be controlled? Do you have any suggestions for actions that can be taken by the authorities to mitigate this problem?
Answers to these key questions have established the background of this research and provided much information about this current problem in society.
To answer these questions, face-to-face interviews were carried out during the research period. School-going and college-going girls were interviewed at home with their parents and siblings present because they too were very interested in the issue. They also shared their experiences and suggestions for solving the issue in the long term. Most of the respondents from the age group of 17–25 years and above preferred to respond to the questionnaire through telephone conversations and sometimes through e-mails, not only for convenience but also to preserve their anonymity when they shared the nature of their experiences. It took a maximum of 40–45 min to complete the face-to-face survey after the rapport building. The telephone conversation
Table 9.1 Marital Status of Respondents
According to Age Group
Marital Status
Married
Unmarried
Total

13–16
Years

17–24
Years

25–30
Years

0
100
300

50 50
300

50 50
300

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was much easier and took 30 minutes to 1 hour depending on the issues to be covered by both the respondent and the interviewer. The response rate was
100% for this research because of its focus on a regular phenomenon that is a menace to our society and the lack of attempts to solve this problem.
Although the respondents were very cooperative in answering the questionnaire, some of them preferred to skip some questions, such as “Could you highlight the behavior in a little more detail (message content or picture details, etc.)? Do you maintain any restrictions in disseminating your contact number?” Quantitative Analysis and Results
A quantitative analysis was made by calculating the correlation using a oneway ANOVA, the most reliable statistical tool for social science. The analysis for this particular study has been made on the basis of primary data. The data were collected through a questionnaire survey. Table 9.2 shows the patterns of cell phone behavior that caused a sense of sexual harassment in the respondents. Regarding the correlation analysis, we can measure the justification of this research in addressing a social problem. During the survey, school-going girls demonstrated how they got involved in a network of friendship and subsequently suffered from the intimidation of their so-called friends. College girls explained how they had been blackmailed by their boyfriends and their male friends. Professional women faced similar types of harassment and, in
Table 9.2 Ways of Sexual Harassment through Cell Phones (Call,
SMS, Picture Messages, etc.)
Oral
1. Sexual comments/remarks about person’s appearance, body, or clothing 2. Telling sex-related jokes
3. Asking about sexual fantasies
4. Insulting comments on someone’s sex and conjugal life
5. Discussing sexual issues
6. Asking for sexual support and continued pressure for dates
7. Sexually suggestive signals and whistling on call
8. Direct sexual proposition

Nonverbal 1. Sending sexually explicit pictures, wallpaper, cartoons, etc. 2. Sex-related music, lyrics as ringtone 3. Taking photos 4. Editing personal photos and disseminating them 5. Using camera phone, Bluetooth for data transfer without someone’s consent Sexual Harassment over Cell Phones

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some cases, their reactions were very complex. Some of them became daring enough to be vocal in making their experiences public while many of them have never raised their voices or have even denied that they have ever been harassed at all.
We know that correlation analysis determines the degree of the relationship between two or more variables using a scattered diagram, Pearson’s correlation coefficient, and so forth. A correlation coefficient lies between –1 and +1. Symbolically, –1