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ОглавлениеHistory of Criminalization of Terrorist Financing
It is difficult to determine precisely when and how the idea developed that countering terrorist financing could play a central role in the fight against terrorism.1 Prior to the adoption of Terrorist Financing Convention, some Western states had adopted laws that deal with terrorist financing in a similar manner that the Terrorist Financing Convention does. For example, in the United States, the Violent Crime Control and Law Enforcement Act of 1994 prohibits “provision of material support or resources or conceals or disguises the nature, location, source, or ownership of material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out” specified offenses regarded as terrorist activities.2
Internationally, the idea of expanding the scope of criminalization to include terrorist-related activities seems to be around in 1994 when the UN General Assembly encouraged State Members “to review urgently the scope of the existing international legal provisions on the prevention, repression and elimination of terrorism in all its forms and manifestations, with the aim of ensuring that there is a comprehensive legal framework covering all aspects of the matter.”3 It appears that the idea of countering terrorist financing through the adoption of international measures originated in the G7 (now G8), which decided to take a leading role against terrorism. In 1995, its members declared that “we are determined as a group to continue to provide leadership on this issue to the international community, using bilateral and multilateral measures and agreements to counter terrorism,” and it seems that the first call for the adoption of measures to counter terrorist financing was officially issued at that meeting in Ottawa where it was agreed “to pursue measures aimed at depriving terrorists of their sources of finance.”4
Following the G8’s statement of its interest in depriving terrorism of funding, in December 1996, the UN General Assembly adopted Resolution 51/210, establishing an ad hoc committee to “address means of further developing a comprehensive legal framework of conventions dealing with international terrorism.”5 Using identical wording to that used in the G7/8 Agreement on 25 Measures for Combating Terrorism made at its meeting in Paris in July 1996, the General Assembly Resolution, also, called on all States to take steps to counteract terrorist financing by taking
steps to prevent and counteract, through appropriate domestic measures, the financing of terrorists and terrorist organizations, whether such financing is direct or indirect through organizations which also have or claim to have charitable, social or cultural goals or which are also engaged in unlawful activities such as illicit arms trafficking, drug dealing and racketeering.6
The Resolution additionally emphasized the prevention of
the exploitation of persons for purposes of funding terrorist activities, and in particular to consider, where appropriate, adopting regulatory measures to prevent and counteract movements of funds suspected to be intended for terrorist purposes without impeding in any way the freedom of legitimate capital movements and to intensify the exchange of information concerning international movements of such funds.7
In the autumn of 1998, a draft of a convention on the suppression of the financing of terrorism,8 a French initiative at a G8 summit,9 was proposed to the United Nations. At the request of the UN General Assembly,10 that draft was considered at a meeting of an ad hoc committee11 and then a Working Group of the Sixth Committee.12 After an evaluation and some amendments to the proposed convention (the content and origins of which will be discussed in the following chapters), the Sixth Committee recommended that the General Assembly adopt the proposed convention.13 On December 9, 1999, the Terrorist Financing Convention was adopted by the UN General Assembly and regarded as a significant contribution to the fight against terrorism.14 The purpose of the Convention is set out in its preamble where it notes that “the financing of the terrorism is a matter of grave concern to the international community” and the international community is “convinced of the need to enhance international cooperation among States in devising and adopting effective measures for the prevention of the financing of terrorism, as well as for its suppression through the prosecution and punishment of its perpetrators.”
In general, the Convention follows the structure and standard provisions of the UN’s previous counterterrorism conventions particularly the International Convention for the Suppression of Terrorist Bombing (hereinafter the Terrorist Bombing Convention).15 The notable example of this structural similarity is Article 3 of Terrorist Financing Convention, which limits its application to the cases involved with a transnational element.16 The Convention is also inapplicable to a situation involving armed conflict, except for a situation when a terrorist attack is carried out against a civilian, or against any other person not taking an active part in the hostilities in a situation of armed conflict.17 Similar to the Terrorist Bombing Convention, Article 20 of the Convention emphasizes that it must be applied “in a manner consistent with the principles of sovereign equality and territorial integrity of States, and that of non-intervention in the domestic affairs of other States,” while Article 22 reaffirms the exclusivity of the territorial jurisdiction of the State Parties.18
The Convention provides a list of measures directed at terrorist financing, many of which were drawn from the forty anti-money laundering recommendations of the Financial Action Task Force (hereinafter the FATF19).20 It is not surprising that the United Nations, under the influence of G7/8 which conceived of the idea of counterterrorist financing, adopted such an approach. From early in the 1990s, G7/8 had continuously emphasized the possible link between terrorism and organized crime, particularly drug trafficking.21
However, the drafters of the Terrorist Financing Convention needed to define the offense of terrorist financing in such a way that could be justifiable to, and implementable by, prospective State Parties. This chapter will present the arguments that arose during the negotiation on draft of the Convention; it will give some examples of how states have been implementing it. It seems that unlike the wording of the Convention and the insistence of the FATF, which focuses on the promotion and development of policies aimed at countering money laundering and terrorist financing, some countries have resisted adopting the offense as an independent offense, probably because it is not compatible with their criminalization principles.
Negotiations on the Structure of the Offense of Terrorist Financing
Although the draft Convention was proposed with the intention of addressing terrorist financing as a stand-alone crime, some doubted as to whether and, if so, how an ancillary act of financing could become the crime of terrorist financing. Three approaches were proposed and discussed during the negotiations on the draft Convention: (1) to treat terrorist financing as an ancillary form of participation in the offense of terrorism, (2) to criminalize only the acts of financing of terrorist groups, (3) and to consider terrorist financing as an independent crime. While the drafters adopted the third approach, other approaches have been favored when the Convention has been applied at national levels. These three approaches will be discussed in this part.22
Terrorist Financing as an Ancillary Offense
During the first and second reading of the draft Convention, reservations were expressed as to whether it was necessary to separately and independently criminalize terrorist financing. It was argued that having an ancillary nature, the financing of any of the existing offenses defined by the previous counterterrorism conventions called “sectoral conventions”23 would constitute participation or complicity in that offense, and the provisions on accomplices in the sectoral conventions were enough to cover such financing.24 The aim of the sectoral conventions is to target specific threats, such as hostage taking or hijacking, implicitly regarded “terrorist,” without attempting to define or even apply the term terrorism. Using the traditional principles of criminal law, these treaties consist of a set of provisions defining the scope and elements of these offenses by referencing specific types of acts (e.g., hostage taking or hijacking). In other words, creation of an independent offense of terrorist financing was argued to be unnecessary because general provisions for complicity in criminal law could serve the same purpose of providing a means to repress actions of helping in the commission of a terrorism offense by financing it.
This reservation was not taken into account by the drafters of the Convention. However, similar reasons have been given by some jurisdictions to refuse to establish an independent offense of terrorist financing. Aruba, for example, expressed the view that “several parts of the terrorist financing offences” as required by the Convention could be covered by the various existing provisions on accomplices in Aruba law.25 In addition, it was argued that a separate and independent offense might overlap with some of the existing crimes under its law. Aruba has since amended its law to satisfy the FATF’s requirements and introduced a new independent offense of terrorist financing.26 However, it is not clear how Aruba addresses the overlap issue (a separate and independent offense might overlap with some of the existing crimes under its law).
In some jurisdictions, terrorist financing may be considered as coming close to the notion of an inchoate crime in the sense that its criminality is not dependent on the completion of a subsequent offense. Unlike the law of complicity which targets conduct which helped, in some way, the principal to commit a crime, the law of inchoate crime aims at reaching earlier acts, in the sequence of events, which do not necessarily have an effect on the actual crime of terrorism. In the Netherlands, for instance, the financing of a terrorist act used to be prosecuted as “preparation of an offence” under Article 46 of the Dutch Penal Code.27 The Dutch Supreme Court in a ruling defined “preparation” as “an incomplete form of a criminal offence.” Widening the scope of the law on attempt, the court also ruled that “punishable preparation is further away from the completed offence than attempt . . . but involves acts in which perpetrator . . . intentionally fabricate[s] or ha[s] at his disposal means that are . . . intended for the commission of the criminal offence he has in mind.”28 In the case of terrorist financing, it seems that the financing of specific terrorist acts used to include the situation where the act financed or intended to be financed has not been attempted yet.29 However, in spite of these objections, the Netherlands amended its law in 2013 to meet the FATF’s requirements by criminalizing the financing of terrorist acts as an autonomous offense.30 I will revisit this matter further and in close detail in chapter 8 where I discuss, from a criminal law perspective, whether it is justifiable to criminalize terrorist financing as an independent offense.
Criminalization of Financing Terrorist Organizations
A minority of delegations tried a different approach which was not adopted in the Convention but has had some subsequent impact, and thus deserves more detailed treatment here. They tried to restrict the scope of the offense of financing only to terrorist organizations.31 They argued that a mere preparatory act cannot be criminalized as an independent offense, unless the act is of a “particularly dangerous nature.” According to these delegations, in the context of the Convention, a “particularly dangerous” act should include “only” the financing of terrorist organizations. In fact, it was argued
it is this aspect of organisation, which typically includes long-term planning, continuity of purpose, and division of labour and particular difficulty of detection, which renders entities and their activities so dangerous that criminalising the financing of mere preparatory acts justifiable.32
They expressed that a similar rationale could not apply to the financing of terrorist individuals as it would simply be a participatory offense (as discussed above) which falls within the scope of the sectoral conventions listed to the Convention. However, they did not provide reasons as to how reliance on the dangerousness of a terrorist group could justify criminalization of financing of that group when the connection between financing or funds and terrorism, from which the criminality of the financing is derived, may be tenuous. This matter will be discussed in chapter 7.
Such a reference to terrorist organizations also caused a further problem; it required the introduction of precise and detailed elements for the definition of “organization.”33 Most of the proposed definitions of “organization” emphasized the hierarchical structure of a group of persons with common objectives,34 and the drafters began to raise doubts over the usefulness of defining “organization.”35 The Convention was finalized and the drafters avoided including a definition of “organization” on the view that the definition of “organization” may vary from one case to another.36 Thus, the minority position that sought to link terrorist financing to terrorist organizations had no impact on the Convention itself.
Even the UN Security Council, which has engaged in the suppression of the financing of groups associated with Al-Qaida and Da’esh, as another method of countering terrorist financing, has failed to define a “terrorist organization” or provide legal guidelines for identifying terrorist groups. Instead, it has adopted an “operational” or listing and delisting approach to the issue.37 What the Security Council has done is that it has identified groups (so far Al-Qaida and Da’esh) regarded by it as terrorist groups. The Security Council in Resolution 1267 (1999) established a committee,38 namely the Al-Qaida Sanctions Committee, and gave it a mandate to create and update a list of individuals, groups, undertakings, and entities regarded to be associated with them. These designated individuals and organizations are subject to severe sanctions: states should freeze all of their assets, “prevent their entry into or the transit through their territories” and prevent the supply, sale, and transfer of arms and weapons or technical advice and assistance related to military activities.39 The Security Council in Resolution 2253 (2015) provides a list of activities (such as financing, supplying arms to, or recruiting for these groups) indicating “an individual, group, undertaking or entity is associated” with identified groups.40
Having regard to the information provided by the Member States and regional organizations,41 the committee, which consists of the Security Council Member States, is obliged to make a decision (by “consensus of its members”) on whether an individual or organization proposed is eligible to be designated as terrorist or delisted from the list.42 However, the inclusion of a group on the list provided by the UN Security Council is not always considered as “conclusive evidence” of the terroristic nature of that group. In this regard, an Italian court argued that the list has merely “an administrative value,” which does not “override the principle of the free assessment of evidence by an independent judge.”43
Designating an individual or group as terrorist without instituting criminal proceedings has also been adopted by some States. For instance, in the United States, a group may be designated as a terrorist group by the Secretary of State in consultation with the Attorney General and the Secretary of the Treasury.44 The main criterion used to designate a group as terrorist is that the group engages in terrorist activity or “retains the capability or intends to engage in terrorist activity or terrorism.”45 As will be discussed in chapter 11, this approach, however, is subject to criticism because of the lack of a certain legal base and procedure for designating individuals or groups and freezing their assets.46 In fact, this approach reduces the degree of judicial control of the designation process, and, instead, risks politicizing the targeting process,47 which in turn increases the risk of failure to abide by fundamental principles including the right to a fair hearing, “due process, right to property and freedom of association.”48
The absence of a definition of a terrorist group or legal requirements for identifying terrorist organizations has resulted in disagreement among states and international organizations about which organizations or individuals should be listed or delisted.49 In this regard, it is instructive to compare the list of states’ and international organizations’ blacklist of terrorist organizations since “there are notable omissions.”50
The importance of addressing the organizational character of the offense of terrorism, however, has been highlighted by the European Council through its establishment of terrorist group offenses. The EU Council Framework Decision of June 13, 2002 on Combating Terrorism in Article 2(2) of the Framework Decision requires the Member States of the European Union to criminalize “directing a terrorist group” as well as “participating in the activities of a terrorist group including by supplying information or material resources or by funding its activities in any way, with knowledge of the fact that such participation will contribute to the criminal activities of the terrorist group.”51 Similar to the definition of “organized criminal group” provided by the 2000 United Nation Convention against Transnational Organized Crime (hereinafter the Palermo Convention),52 the Framework Decision defines a terrorist group as a “structured group of more than two persons which [has been] established over a period of time and [is] acting in concert to commit terrorist offences.”53 A “structured group” means “a group that is not randomly formed for immediate commission of an offence and that does not need to have formally defined role for its members, continuity of its membership or a developed structure.”
The Framework Decision is applied by EU Member States, but using somewhat different interpretations.54 For instance, the financing of a terrorist organization in the Netherlands comes close to the notion of inchoate crime55 but it does not merge into the category of a preparatory offense in the sense that a direct relation between the act of financing and a specific planned or completed terrorist act is not necessary.56 In other words, the Netherlands criminalizes the financing of a terrorist group as “participation” in the group under Article 140a of the Penal Code. In general, participation in a group whose aims are to commit offenses was regarded as “the preparatory acts of entering into and maintain a long-lasting collaboration, which is aimed at commission of the crime.”57 In the case of terrorist financing, Article 140a does not require that the funds collected and provided be used for the commission of a specific act, or are intended to be used for such an offense. The requirement is that the funds should be collected or provided for the “benefit” of a terrorist organization.58 According to the Dutch case law, an “organization” was “a structured and lasting form of collaboration between two or more persons.”59
Spain criminalizes the financing of a terrorist group as “belonging” to the group.60 According to the Article 571(3) of Spanish Criminal Code, terrorist organizations are those groups which (1) are formed by a large number of persons, (2) possess weapons or dangerous instruments, and (3) have the particular purpose of “subverting the constitutional order or seriously breaching public peace.” The financing of such a group under the Article 576(1) of the Spanish Criminal Code is considered as an act of “collaboration with the activities or the purposes of a terrorist organisation.” Collaboration, in Article 576(2), is defined as the provision of
information on . . . or use of accommodation or storage facilities; concealment or transport of individuals related to terrorist organisations or groups; . . . and, in general, any other equivalent form of co-operation, aid or mediation, economic or of any other kind whatsoever, with the activities of those terrorist organisations or groups.
Unlike the approach taken by Spain, some Ibero-American countries do not establish an independent offense of terrorist financing. Argentina, for example, classifies terrorist financing as “illicit association” to a terrorist organization (Article 210 of the Argentine Criminal code).61 Colombia, in Article 340 of the Colombian Criminal Code, treats terrorist financing as an agreement to commit crimes,62 which is similar to the concept of conspiracy in common law countries.
Such a reference to “association” or “agreement” definitely requires the proof of a stronger connection between acts of financing or funds and terrorism from which the criminality of the terrorist financing offense must be derived. Such a requirement was not, however, added to the proposal of the delegations who asked for limiting the scope of the terrorist financing offense to financing terrorist organizations, nor to the recommendations provided by the FATF.
The FATF recommends the criminalization of the financing of any kind to a terrorist group as an independent offense. It provides a wider definition of terrorist group in the sense that it does not require of a terrorist organization some measure of structure or existence for a particular time.63 The FATF reduces the concept of terrorist groups to broadly cover
any group of terrorists that: (i) commits, or attempts to commit, terrorist acts by any means, directly or indirectly, unlawfully and wilfully; (ii) participates as an accomplice in terrorist acts; (iii) organises or directs others to commit terrorist acts; or (iv) contributes to the commission of terrorist acts by a group of persons acting with a common purpose where the contribution is made intentionally and with the aim of furthering the terrorist act or with the knowledge of the intention of the group to commit a terrorist act.
Terrorist Financing as an Independent Offense
Despite the above-mentioned approaches, the tendency in the negotiations on the draft Convention was toward retaining an independent offense of terrorist financing.64 The idea that the provisions on accomplices in the sectoral conventions were sufficient to cover all aspects of terrorist financing was rejected. It seems that the drafters were determined to give the new offense a broad scope which covers “the financing of any and all crimes” defined by or annexed to the Convention.65 It was argued that the financing of commission or preparation of a terrorist act, in and of itself, is as serious an offense as the actual terrorist act.66 This notion is based on the assumption reflected in the preamble of the Convention: “the number and seriousness of acts of international terrorism depend on the financing that terrorists may obtain.”67
In other words, the injurious and dreadful consequences of terrorism served an important function in the construction of terrorist financing as an independent offense.68 It is argued that terrorist offenses are “multi-offensive” in that they endanger many “protected values” such as “life, physical integrity, property, freedom and national security.”69 As terrorist financing allows terrorism to become real, the act of financing terrorism poses ex ante threat to those values too.
It is also argued in the scholarly literature that terrorist financing should be considered to constitute “a separate primary harm rather than an ancillary harm” since “reliable financing” can change the conventional harm of terrorism from “sporadic and local” and give it a “continuous and broader nature” by enabling terrorists to expand the scale and scope of their influence across vast areas and to expose various people.70 The argument goes that solid resources enable terrorist groups such as the FARC and Al-Qaeda to recruit members, to supply themselves with adequate weapons and to launch and expand their activities anywhere in the world. So, it was concluded that the financers of terrorism should be treated independently (even in the absence of a link to a terrorist act) and punished as severely as those who commit terrorism.71 The application of this approach can be seen in Australia where the penalty for the commission of terrorism financing is equal to the one which applies to the preparation or commission of terrorism.72 But the question that this book seeks to answer is: whether, and how far, criminal law can (or should) be stretched to accommodate the terrorist financing offense whose criminality is derived from terrorism to which it does not need to be linked?
Criminalization of Terrorist Financing by Analogy with Organized Crimes
But before examining this question, it is worth noting that criminalization of terrorist financing should be regarded as a part of “a larger shift in criminal justice from an offender-oriented toward a proceeds-oriented” approach73 specifically developed in the fight against organized crime because of producing large profits for criminals. The main justification for the adoption of this approach is its “possible deterrence value.”74 It is believed that attacking the root of all economically motivated crimes would remove the incentive of perpetrators to commit those crimes.75 At an organizational level, “going after the money” is assumed to incapacitate criminal organizations by taking away their financial lifeblood, eliminating their capacity to trade, and reducing their attractiveness to recruits.76
The criminalization of money laundering is considered the key component of this approach since criminals may hide the proceeds with third parties77 or give them a legitimate appearance to the extent that confiscation is not possible.78 So, for the sake of the confiscation of such proceeds, criminalizing laundering can provide a legal tool for law enforcement authorities to tackle suspicious assets either in the hands of the third parties or those of the real owner79 without requiring the prosecution to prove the guilt of the criminals of the predicate crime beyond a reasonable doubt.80 That is, confiscation is possible by proving the charge of money laundering conduct or the “ownership” of the proceeds. In addition, the fight against money laundering is considered as a means of collecting evidence against the higher-level criminals who stay aloof from criminal activities, but who do come into contact with the proceeds derived from the criminal activities.81 This contact provides a paper trail of records which constitute the involvement of the top criminals in the criminal activities (predicate crime) from which the proceeds are derived.
Regardless of how effective the application of this approach has been in the fight against organized crime,82 the question is whether the logic of this argument fits the case of terrorist financing; or whether, terrorism and terrorist financing are equivalent to organized crimes and money laundering to the extent that the same approach can be adopted to counter them? Although the examination of these questions falls outside the scope of this research, it is worth addressing them very briefly here and in the next chapter, because the approach taken by the Terrorist Financing Convention and developed by the FATF and UN Security Council to counter terrorist financing independently of terrorism is heavily reliant on an analogy with organized crimes and money laundering. However, this analogy is inaccurate and may be ineffective for the following reasons.
First, it should be noted that terrorism is not a crime necessarily committed for the purpose of monetary gains. It is a “politically motivated act of violence”83 with two distinctive financial characteristics: (1) terrorists need less operational money to commit, or prepare to commit, terrorist acts than those criminals who seek to maximize their financial gains;84 (2) terrorist funds are derived from legal and illegal sources. Taking these facts into account, it seems implausible to argue that going after terrorists’ funds undermines their incentive simply because funding terrorism is “a product of an ideology.”85 As long as there is a desire for politically or ideologically inspired people to seek their purposes through violence, they will discover a way to do so.
In terms of an impact on the organizational capacity of terrorist groups, while drying up terrorists’ funds may have disruptive effects on the potential of the groups to recruit and conduct operations on the scale of the September 11, it does not necessarily result in deterring or resolving “terrorism risks.”86 Michael Levi argues that
terrorists need and want less money than do those who seek to maximize economic gains. Furthermore, profit-seeking criminals will usually come around gain and their individual crimes will make little impact upon levels of criminality, creating more incentives to patient investigation of nodal figures. By contrast, the aim of anti-terrorist policy is to minimize the chances and consequences of violence on every possible occasion, so patience is more costly. However, if they have any effect at all, controls on licit sources of finance may displace terrorist finance from legal into illegal channels. Without verifiable evidence on how many attacks were prevented, it seems plausible that tighter financial and precursor controls ultimately reshape rather than resolve terrorism risks, reducing the capacity to cause spectacular harms in jurisdictions that are more expensive to reconnoitre. As in organized crime, it then remains moot whether it is better or worse to have a widely distributed set of independent [for example] al-Qa idah-inspired attacks compared with a more centrally regulated and perhaps more individually damaging set of attacks.87
Therefore, the amount of money these groups would seek “would be much smaller; the means used to raise them would vary widely and depend on the local conditions, . . . there would be much less need for fund transfers and the communication among groups . . . would be minimal.”88 The U.S. 9/11 Commission report makes a valid point that if a terrorist group is “replaced by smaller, decentralized terrorist groups, the premise behind the government’s efforts that ‘terrorists need a financial support network’ may become outdated.”89
Lastly, by criminalizing money laundering techniques, the freezing and confiscation of the proceeds of criminal activities can be facilitated, attacking terrorist finance as a tool “to starve of funds can be ‘problematic’ and ‘premature.’”90 The main problem in this regard derives from the fact that the nature of terrorist financing conduct is “the inverse of the structure of the money laundering offence.”91 While money laundering offenses are premised on predicate offenses like drug trafficking having already taken place, the principal offense of terrorist financing in most cases is not committed or even attempted yet if the financing itself is prosecuted as a separate offense. As will be discussed in chapters 6 and 7, criminalization thus depends on a hypothesis of future criminal activity. In addition, freezing such funds appears to be much more difficult than freezing funds in money laundering cases as the law enforcement agencies again need to establish a hypothetical link between the suspicious funds and a possible terrorism connection, rather than relying on an existing or supposed connection with an existing predicate offense.
In the absence of an actual and clear connection between financing activities/funds and terrorist activities, it makes more sense to prosecute the financial criminal activities of terrorists, terrorist groups, or their supporters as “various forms of transnational crime” addressed by conventions on money laundering and organized crimes.92 It is worth noting that the effectiveness of these conventions in the fight against money laundering and organized crimes is questioned.93
Conclusion
Terrorist financing was adopted as an independent crime globally through Terrorism Financing Convention. The drafters of the Convention were determined to introduce an offense with a very broad scope to the extent that it includes financing of activities which may not be connected to preparation or commission of any terrorist act. But the question is whether and how far criminal law can justifiably be expanded to include such an offense. This is the question that this book seeks to answer in chapter 4 onward.
It has been argued that the counterterrorist financing measures including criminalization and confiscation measures have been adopted by a close analogy with the measures adapted to counter organized crimes and money laundering. Regarding the nature and characteristic of terrorism and terrorist financing, such an adoption is inaccurate and seems to be ineffective. Although this book is not designed to examine the effectiveness of the expansion of anti-organized crimes or anti-money laundering tools to counter terrorist financing, the examination of some of the notions on which this analogy is based seems to be important as they play a significant role in justifying the idea that terrorist financing can be addressed independently. For example, relying on the notion that terrorism and terrorist financing is so closely connected to organized crimes and money laundering, the FATF recommends the criminalization of terrorist financing as an independent offense and a predicate crime of money laundering. The following chapter will examine this recommendation, which has had a considerable role in the diffusion of the criminalization approach adopted by Terrorist Financing Convention.
NOTES
1. Michael Levi, “Combating the Financing of Terrorism: A History and Assessment of the Control of ‘Threat Finance’” 2010 50(4) British Journal of Criminology 650, p. 666.
2. Violent Crime Control and Law Enforcement Act of 1994 (United States), Pub. L. 103-322, September 13, 1994, 108 Stat. 1796 (Codified as amended at 18 U.S.C. § 2339A).
3. UNGA, A/RES/49/60, February 17, 1995.
4. Foreign Affairs and International Trade, Ottawa Ministerial Declaration on Countering Terrorism: P-8 Ministerial Conference on Terrorism (Ottawa, Canada, December 12, 1995).
5. Raphael Bossong, The Evolution of EU Counter-Terrorism: European Security Policy After 9/11 (Routledge, Abingdon, Oxon, 2013), p. 8.
6. UNGA, A/RES/51/210, January 16, 1997, s. I (3)(f).
7. Ibid., s. I (3)(f).
8. UNGA, Letter Dated 3 November 1998 from the Permanent Representative of France to the United Nations Addressed to the Secretary-General (A/C.6/53/9, November 4, 1998).
9. Ministry of Foreign Affairs Japan, Foreign Ministers’ Progress Report: Denver Summit of the Eight (Tokyo, 1997).
10. UNGA, A/RES/53/108, January 26, 1999.
11. UNGA, Report of the Ad Hoc Committee Established by General Assembly Resolution 51/210 of 17 December 1996 (A/54/37, May 5, 1999).
12. UNGA, Measures to Eliminate International Terrorism (A/C.6/54/L.2, October 26, 1999).
13. UNGA, Measures to Eliminate International Terrorism (A/54/615, December 10, 1999).
14. See UNGA, A/54/PV.76, December 9, 1999. See also UNGA, A/RES/54/109, February 25, 2000.
15. UN International Convention for the Suppression of Terrorist Bombings (New York, December 15, 1997). For more details see Clifton M. Johnson, “Introductory Note to the International Convention for the Suppression of the Financing of Terrorism” 2000 39(2) International Legal Materials 268, p. 268.
16. This is similar to Article 3 of UN International Convention against the Taking of Hostages (New York, December 17, 1979), and Article 4(4) of UN Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal, September 23, 1971), and Article 4 of UN Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (Rome, March 10, 1988).
17. Article 2(b). This is identical to Article 12 of UN International Convention against the Taking of Hostages, and Article 19 of the Terrorist Bombing Convention, above n 15.
18. This is similar to Articles 17 and 18 Terrorist Bombing Convention, above n 15.
19. The FATF is an intergovernmental body established by the G7/8 in 1989 to counter money laundering.
20. Johnson, above n 15, p. 269.
21. See, for example, UNGA, A/RES/49/60, February 17, 1995. Or see also UN Doc., A/CONF 157/23, July 12, 1993. Or UNGA, A/AC 254/4 Rev.1, February 10, 1999.
22. Earlier versions of some sections of this chapter and chapters 5, 6, and 7 were published in New Criminal Law Review. See Hamed Tofangsaz, “Criminalization of Terrorist Financing: From Theory to Practice” 2018 21(1) New Criminal Law Review 57.
23. These conventions are: UN Convention for the Suppression of Unlawful Seizure of Aircraft (The Hague, December 16, 1970). UN Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal, September 23, 1971). UN Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents (December 14, 1973). UN International Convention against the Taking of Hostages (December 17, 1979). UN Convention on the Physical Protection of Nuclear Material (Vienna, March 3, 1980). Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal, February 24, 1988). UN Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (Rome, March 10, 1988). Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (Rome, March 10, 1988). UN International Convention for the Suppression of Terrorist Bombings (December 15, 1997). UN International Convention for the Suppression of Acts of Nuclear Terrorism (April 13, 2005).
24. Anthony Aust, “Counter-Terrorism—A New Approach; The International Convention for the Suppression of the Financing of Terrorism” 2001 5 Max Plank Yearbook of United Nations Law, p. 188.
25. Financial Action Task Force and Caribbean Financial Action Task Force, Mutual Evaluation Report: Anti-Money Laundering and Combating the Financing of Terrorism; Aruba, Kingdom of the Netherlands (Paris, 2009), para. 150.
26. See Financial Action Task Force, 8th Follow-Up Report Mutual Evaluation of Aruba, Kingdom of the Netherlands (Paris, 2014), para. 11.
27. Financial Action Task Force, Mutual Evaluation Report: Anti-Money Laundering and Combating of the Financing of Terrorism; The Netherlands (February 25, 2011), para. 251.
28. Financial Action Task Force, Mutual Evaluation Report, para. 254.
29. Ibid., para. 270.
30. Financial Action Task Force, Second Follow-Up Report Mutual Evaluation of the Netherlands (Paris, 2014), p. 17.
31. See, for example, Austria’s proposal in UNGA, A/AC.252/1999/WP.11, reproduced in UNGA, above n 11, p. 29.
32. Ibid.
33. UNGA, above n 11, Annex IV, para. 11.
34. See, for example, UNGA, A/AC.252/1999/WP.6, reproduced in UNGA, above n 11. p. 27. See also UNGA, A/C.6/54/WG.1/CRP.6, reproduced in UNGA, above n 12, p. 21.
35. Marja Lehto, Indirect Responsibility for Terrorist Acts: Redefinition of the Concept of Terrorism Beyond Violent Acts (M. Nijhoff Publishers, Boston, MA, 2009), p. 312.
36. UNGA, A/C.6/54/WG.1/CRP.35/Rev.1, reproduced in UNGA, above n 12, p. 51
37. Jae-Myong Koh, Suppressing Terrorist Financing and Money Laundering (Springer, Berlin, 2006), p 97.
38. UNSC, S/RES/1267, October 15, 1999, para. 6.
39. UNSC, S/RES/1390, January 16, 2002, para. 2. UNSC, S/RES/1989, June 17, 2011.
40. UNSC, S/RES/2253, December 17, 2015, para. 3.
41. UNSC, S/RES/1390, January 16, 2002, para. 5(a).
42. UN Doc., “Security Council Committee Pursuant to Resolutions 1267 (1999), 1989 (2011), and 2353 (2015), Concerning ISIL (Da’esh), Al-Qaida and Associated Individuals, Groups, Undertakings and Entities” (Guidelines of the Committee for the Conduct of its Work, December 23, 2016), p. 2.
43. Italy V. Abdelaziz and Ors (2007), Final Appeal Judgment, No 1072; ILDC 559 (Italy).
44. US Department of State, “Foreign Terrorist Organizations” (2012), <http://www.state.gov/j/ct/rls/other/des/123085.htm>.
45. Ibid.
46. Bossong, above n 5, p. 48.
47. Julie B. Shapiro, “The Politicization of the Designation of Foreign Terrorist Organizations: The Effect on the Separation of Powers” 2008 6(3) Cardozo Public Law, Policy and Ethics Journal 547.
48. UN Doc., Letter Dated 14 February 2005 from the Chairman of the Security Council Committee established pursuant to resolution 1267 (1999) concerning Al-Qaida and the Taliban and associated individuals and entities addressed to the President of the Security Council (S/2005/83, February 15, 2005), para. 50.
49. The EU-US friction is a good example in this regard. While the United States and Israel pressurizes EU to list Hamas and Hezbollah in its terrorist list, EU members differentiate between the military and political wings of these groups, including only the military wing of the groups to its list. For more discussion see Bianca C. Hostetler, The European Union: Expand, Shrink or Status Quo (Nova Science Publishers, Hauppauge, 2006), p. 73.
50. Alex Peter Schmid, “Introduction to the World Directory of Extremist, Terrorist and Other Organizations Associated with Guerrilla Warfare, Political Violence, Protest, Organized Crime and Cyber-Crime” in Alex Peter Schmid (ed) The Routledge Handbook of Terrorism Research (Routledge, New York, 2011), p. 350.
51. EU, Council Framework Decision of 13 June 2002 on Combating Terrorism (2002/475/JHA, June 22, 2002), Article 2(2)(a) and (b).
52. UN Convention against Transnational Organized Crime (Palermo, November 15, 2000). Article 2(a) of this convention defines a criminal group as “a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit.”
53. EU, above n 51, Article 2(1).
54. See Commission of the European Communities, Report from the Commission Based on Article 11 of the Council Framework Decision of 13 June 2002 on Combating Terrorism (Brussels, 2007).
55. Caroline M. Pelser, “Preparation to Commit a Crime: The Dutch Approach to Inchoate Offences” 2008 4(3) Utrecht Law Review 57, p. 70.
56. Ibid.
57. Ibid.
58. Financial Action Task Force, above n 27, para. 280.
59. Ibid., para. 218.
60. Financial Action Task Force, Third Mutual Evaluation Report on Anti-Money Laundering and Combating the Financing of Terrorism; Spain (Paris, 2006), paras. 113–124.
61. Yara Esquivel Soto, “An Autonomous Offence for the Financing of Terrorism: Notes from an Ibero-American Perspective” in Mark Pieth, Daniel Thelesklaf, and Radha Ivory (eds) Countering Terrorist Financing : The Practitioner’s Point of View (Peter Lang, Bern, 2009), p. 198.
62. Ibid.
63. Financial Action Task Force, International Standards on Combating Money Laundering and the Financing of Terrorism and Proliferation (February 2012), General Glossary, p. 122.
64. UNGA, above n 11, Annex IV, para. 84.
65. Lehto, above n 35, p. 274.
66. Aust, above n 24, p. 288.
67. The Terrorist Financing Convention, preamble.
68. Lehto, above n 35, p. 264
69. Soto, above n 61, p. 200.
70. Koh, above n 37, p. 66.
71. Aust, above n 24, p. 288.
72. Compare Article 101.2 with Article 102.6 of the Criminal Code Act 1995 (Australia).
73. Guy Stessens, Money Laundering: A New International Law Enforcement Model (Cambridge University Press, Cambridge, 2000), p. 85.
74. Michael Levi, “Taking the Profit Out of Crime: The UK Experience” 1997 5(3) European Journal of Crime, Criminal Law and Criminal Justice 228, p. 228.
75. Ethan. A Nadelmann, “Unlaundering Dirty Money Abroad: US Foreign Policy and Financial Secrecy Jurisdictions” 1986 18(1) Inter-American Law Review 33, p. 34.
76. Levi, above n 74, p. 228.
77. Frank Verbruggen, “Proceeds-Oriented Criminal Justice in Belgium: Backbone or Wishbone of a Modern Approach to Organised Crime?” 1997 5(3) European Journal of Crime, Criminal Law and Criminal Justice 314, p. 318
78. Koh, above n 37, p. 39.
79. Stessens, above n 73, p. 86.
80. Koh, above n 37, p. 43.
81. Stessens, above n 73, p. 86.
82. R. T. Naylor, “Follow-the-Money Methods in Crime Control Policy” in Margaret E. Beare (ed) Critical Reflections on Transnational Organized Crime, Money Laundering, and Corruption (University of Toronto Press, Toronto, 2003). See also Peter Alldridge, “The Moral Limits of the Crime of Money Laundering” 2002 5(1) Buffalo Criminal Law Review 279.
83. Robin Morgan, The Demon Lover: The Roots of Terrorism (Piatkus, London, 2001), p. 40.
84. Michael Levi, “Lessons for Countering Terrorist Financing from the War on Serious and Organized Crime” in Thomas J. Biersteker and Sue E. Eckert (eds) Countering the Financing of Terrorism (Routledge, London, 2008), p. 267.
85. Raphael Perl, “Anti-Terror Strategy, The 9/11 Commission Report, and Terrorism Financing: Implicating for U.S. Policy Makers” in Jeanne K. Giraldo and Harold A. Trinkunas (eds) Terrorism Financing and State Responses: A Comparative Perspective (Stanford University Press, Stanford, CA, 2007), p. 255.
86. Levi, above n 1, p. 662.
87. Ibid. See also UNSC, Letter Dated 23 August 2004 from the Chairman of the Security Council Committee Established Pursuant to Resolution 1267 (1999) Concerning Al-Qaida and the Taliban and Associated Individuals and Entities Addressed to the President of the Security Council (S/2004/679, August 25, 2004), p. 6.
88. Nikos Passas, “Terrorism Financing Mechanisms and Dilemmas” in Jeanne K. Giraldo and Harold A. Trinkunas (eds) Terrorism Financing and State Responses: A Comparative Perspective (Stanford University Press, Stanford, CA, 2007), pp. 32–33.
89. National Commission on Terrorist Attacks upon the United States, Thomas H. Kean and Lee Hamilton, The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks upon the United States (National Commission on Terrorist Attacks upon the United States, Washington, DC, 2004), p. 382. See also John Roth, Douglas Greenburg, and Serena Wille, Monograph on Terrorist Financing Staff Report to the Commission (National Commission on Terrorist Attacks upon the United States, Washington, DC, 2004), p. 29.
90. Passas, above n 88, p. 36.
91. Neil Boister, An Introduction to Transnational Criminal Law (Oxford University Press, Oxford, 2012), p. 106.
92. Ben Saul, “The Legal Relationship between Terrorism and Transnational Crime” 2017 17(3) International Criminal Law Review 417, p. 451.
93. Perl, above n 85, p. 251. See also Levi, above n 1, p. 662.
