Suppression Of Terrorist Financing. Hamed Tofangsaz
to Member States of the United Nations regarding the “Nature and links between Terrorism and other Forms of Crime.” This quote is the part of analysis of the replies to the questionnaire done by Dandurand and Chin, above n 23, p. 32.
38. Financial Action Task Force, Report on Money Laundering Typologies 2000–2001 (Paris, February 1, 2001), p. 19.
39. Financial Action Task Force, Report on Money Laundering Typologies 2002–2003 (Paris, February 14, 2003), p. 3. See also Paul Allan Schott, World Bank and International Monetary Fund, Reference Guide to Anti-Money Laundering and Combating the Financing of Terrorism (2nd ed., The World Bank: International Monetary Fund, Washington, 2006).
40. Stefan D. Cassella, “Reverse Money Laundering” 2003 7(1) Journal of Money Laundering Control 92. p. 93.
41. Nick Kochan, The Washing Machine (Duckworth, London, 2006), p. 245.
42. Financial Action Task Force, above n 38, p. 28.
43. Stessens, above n 5, p. 3.
44. For example, the cost of two current terrorist attacks, 9/11 U.S. attacks and the Madrid bombings in 2004, cost $500,000 and $10,000, respectively. Peter Lilley, Dirty Dealing: The Untold Truth about Global Money Laundering, International Crime and Terrorism (2nd ed., Kogan Page, London, 2006), p. 129.
45. 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. 237.
46. Ibid., p. 528.
47. Dandurand and Chin, above n 23, p. 14.
48. Lilley, above n 44, p. 150.
49. Bantekas, above n 16, p. 321.
50. Goredema, above n 21, p. 16.
51. Alex Peter Schmid, Eithne Boland, and Rebekah Grindlay, Countering Terrorism Through International Cooperation: Proceedings of the International Conference on “Countering Terrorism Through Enhanced International Cooperation”: Courmayeur Mont Blanc, Italy, 22–24 September 2000 (ISPAC, Milano, Italy, 2001).
52. Mark Pieth, Financing Terrorism (Kluwer Academic Publishers, Dordrecht, 2002), p. 123.
53. United States Senate Committee on the Judiciary, above n 28, p. 88.
54. Dandurand and Chin, above n 23, p. 18. See also Lilley, above n 44, p. 188.
55. Kersten, above n 20, p. 306.
56. Cassella, above n 40, p. 92.
57. Dandurand and Chin, above n 23, p. 18.
58. Kersten, above n 20, p. 306.
59. Financial Action Task Force, above n 1 p. 37.
Ambiguity in the Definition of Terrorism
In the absence of an international consensus on the definition of terrorism, it seems that the effectiveness of the convention depends, among other things, on a common understanding of what constitutes terrorism, terrorist acts, or terrorist groups, the financing of which should be countered. In other words, unlike other counterterrorism conventions in which certain classes of terrorist-type conduct such as aircraft sabotage, hostage taking, or hijacking are addressed without need to define or even apply the term terrorism, the drafters of the Terrorist Financing Convention could not define the new crime of terrorist financing without precisely clarifying the scope of the definition of terrorism. The aim of this chapter is to examine whether the counterterrorism financing regime provides a solid platform for understanding who should be considered terrorists or what constitutes terrorism, terrorist acts, and terrorist groups.1 The reason for such an examination is self-evident: the financing of terrorism is the subject matter of the counterterrorism financing regime, and it rests on the definition of terrorism.
In the next section, the peculiarities of the nature of terrorism will be illustrated. In section “The Terrorist Financing Convention and the Definition of Terrorism,” the attempt of the drafters of the Terrorist Financing Convention to define the elements of terrorism, terrorist acts, and terrorist groups will be examined. The main argument of this chapter is that, with the exception of certain classes of offenses regarded as terroristic, there is a difficulty with the nature of the concept of terrorism in relation to criminal law, which makes a consensus of opinion as to what it means unlikely. Even the drafters of the Terrorist Financing Convention and others such as the FATF and the UN Security Council involved in the fight against terrorist financing have provided a poor basis for a shared understanding of what is terrorism. In other words, they have left vague all of those controversial aspects of terrorism which hinder reaching an agreement on a convention on terrorism. This may jeopardize the purposes that the convention has in view as there is no common or clear understanding of, or guidance on, whose money or, more accurately, financing for what purpose should be countered.
The Peculiarities of the Nature of the Concept of Terrorism
Logically, without defining terrorism, terrorist offenses, or terrorist groups, it is impossible to address terrorist financing. Nonetheless, there are some peculiarities about the nature of terrorism which have made not only all attempts to reach an agreement on the definition of terrorism, until now, impossible, but also the criminalization of terrorist financing controversial. That is, there is no agreement on what types of conduct, in what circumstances and when, against whom (targets or victims) and with what intention or motivation constitute terrorism.
In terms of the objective element, the actus reus of the offense of terrorism is defined by scholars as the “underlying act” which is an offense in itself: murder, hijacking, kidnapping and so on.2 The less-discussed question is whether the underlying act of terrorism encompasses any unlawful conduct, including violent conduct, “repressive acts”3 and even minor criminal conduct like vandalism. While some believe that the underlying acts of terrorism only (need to) include serious offenses or “violence,”4 in providing a generic definition on terrorism, some regional agreements even go so far as to include “any act which is a violation of the criminal laws of a State Party.”5 This seems to cover all kinds of criminal conduct. The UN draft Convention against Terrorism enumerates the underlying act of causing “death or serious bodily injury . . . serious damage to public or private property . . . resulting or likely to result in major economic loss.”6 “One may wonder when serious damage (rather than non-serious damage) to a place of public use occurs.”7 The question can be also raised as to whether lawful conduct which may terrorize people can be an underlying act.
The most peculiar feature of terrorism, as the (in)famous dictum “one man’s terrorist is another man’s freedom fighter” indicates, is that “the same kind of action . . . will be described differently by different observers, depending on when and where it took place and whose side the observer is on.”8 That is, terrorism, unlike other transnational crimes, is not an act inherently and always recognized as criminal. Its criminality can be circumstantial. There are some circumstances, such as struggles for self-determination, attempts at national liberation, rebellion and duress or necessity, on which there is no agreement whether terrorist-type of conduct or the use of violence is unlawful and unjustifiable but excusable, or unlawful but justifiable, or even lawful.9 Although these circumstances might be regarded as exceptional, ambivalence about the use of terrorism in these circumstances has plagued agreement on a generic definition of terrorism.10 In some regional agreements, however, some of these circumstances have been taken into account by being exempted from the definition of terrorism.11 Nonetheless, what law should govern such exempted acts,12 or whether these acts ought to be covered by the international humanitarian law or the “law of international criminal defences” has not been clarified either regionally or internationally.13
To solve the problem