Suppression Of Terrorist Financing. Hamed Tofangsaz
Suppression Of
Terrorist Financing
Suppression Of
Terrorist Financing
Over-Criminalization
Through International Law
Hamed Tofangsaz
LEXINGTON BOOKS
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Published by Lexington Books
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British Library Cataloguing in Publication Information Available
Library of Contress Cataloging-in-Publication Data Available
ISBN 978-1-7936-1949-5 (cloth : alk. paper)
ISBN 978-1-7936-1950-1 (electronic)
Contents
1 What Is Terrorist Financing?
2 History of Criminalization of Terrorist Financing
3 Is Terrorist Financing a Predicate Offense of Money Laundering?
4 Ambiguity in the Definition of Terrorism
5 The Material Elements of the Offense
6 The Key Role of the Fault Element in the Construction of the New Offense
7 The Fault Element of the Offense of Financing Terrorist Organizations
8 The Offense of Terrorist Financing: Why Does It Go So Wrong?
9 The History of the Development of Forfeiture Legislation
10 The EU’s Approach toward the Confiscation of Terrorist Funds
11 The EU’s Approach to Freezing of Assets of Designated Individuals or Organizations
12 ASEAN’s Legal Response to Terrorism Financing
Conclusion
References
Index
About the Author
Although terrorism is not a new phenomenon,1 since the end of World War II, there has been widespread concern over the “intensity and urgency” of attacks on civilians or civilian property, carried out with the purpose of frightening ordinary people or states or international organizations into acting in a particular way or desisting from action.2 To deal with this phenomenon called terrorism, the United Nations has created a global system of counterterrorism treaties. The aims of these treaties are to target specific threats such as hostage taking3 or hijacking4 regarded as terrorist acts without defining or applying the term terrorism.5 Using the traditional principles of criminal law, these treaties consist of a set of provisions defining the offenses sanctioned by these treaties.
The only exception to this approach is the adoption of the International Convention for the Suppression of the Financing of Terrorism (hereinafter the Terrorist Financing Convention).6 The Convention requires the criminalization of terrorist financing as an independent offense in spite of the facts that such criminalization requires an agreement on a generic definition of terrorism, the financing of which should be criminalized, and in spite of whether traditional criminal law can accommodate terrorist financing, a preparatory conduct dealt with by the law of complicity or inchoate offenses, as an independent offense.
The introduction of the Terrorist Financing Convention should be regarded as a shift to a preemptive approach adopted by some Western liberal States in their domestic law to “criminalizing acts that have never happened to deal with threats that are not yet and may never be.”7 Advocating the necessity of a shift to this approach in “the war on terror,” the former U.S. president, George W. Bush argued that
for much of the last century, America’s defense relied on the Cold War doctrines of deterrence and containment. In some cases, those strategies still apply. But new threats also require new thinking. Deterrence, the promise of massive retaliation against nations, means nothing against shadowy terrorist networks with no nation or citizens to defend. . . . If we wait for threats to fully materialize, we will have waited too long. . . . We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge.8
This argument was a driving factor in the formulation of the Terrorist Financing Convention proposed a few years before September 2001 by some of the Western States which intended to internationalize the use of a preemptive approach in the fight against terrorism. As will be explored, a call for the adoption of measures to counter terrorist financing was officially issued in G7/8 ministerial meetings in 1995.9 In 1999, a draft of a convention on terrorist financing, a French initiative at a G8 summit,10 was proposed to the United Nations.11 The draft regarded terrorist financing as “a matter of grave concern to the international community,”12 which it thought needed to be tackled independently. After two weeks of negotiations, the Terrorist Financing Convention was adopted by consensus and the offense of terrorist financing was introduced as an autonomous offense. However, until September 2001, only four states had ratified the Convention. The Convention now has 132 signatories and 188 parties.
The 9/11 attacks, nevertheless, created an opportunity for pushing through this preemptive approach reflected in Terrorist Financing Convention, but it was never welcomed by most states. Therefore, substantial efforts have been taken to assure that this approach is adopted by states in the fight against terrorist financing. The Financial Action Task Force (hereinafter the FATF), an intergovernmental body established by the G7/8 in 1989 to counter money laundering, agreed to set out specific recommendations for dealing with terrorist financing.13
Since 2001, the United Nations Security Council has also been dealing with the issue of terrorist financing by adopting some quasi-criminal law measures. Assuming that terrorism is closely and heavily connected to criminal (organized) activities, these international organizations (the United Nations, the FATF, and the UN Security Council) created and perpetuated a regime of measures to counter terrorist financing. This regime, relying on a preemptive approach, provides two types of preventive measures:
(a) Financial measures: Emphasizing a risk-based approach, these preventive measures center on the role of financial institutions in preventing