Suppression Of Terrorist Financing. Hamed Tofangsaz
standards for their exercises): “structural vagueness” which refers to the vagueness of the structure of the terrorist financing offense under which it is not clear and determinable, when there is no terrorist act planned, attempted, or committed, where the criminality of financing activities can be derived from. Although the offense relies on the mental state of the accused in imposing criminal liability, in the absence of the existence or preparation of a terrorist act, what a financer should know or intend to be held criminally liable is not specified. Even if one finds a meaning for it, as will be argued in chapters 6 and 7, such an approach to criminalization is unjustifiable in terms of existing principles of criminal law, as will be discussed in chapter 8.
This structural vagueness also leads to confusion over the certainty and determinacy of the meaning and application of each elements of the offense. This vagueness is called by this book “definitional vagueness.” For example, as chapter 5 points out, it is not clear, in the absence of a connection between financing or funds and a terrorist act, whether and how providing legal advice to a terrorist group constitutes the terrorist financing offense.
The jurisprudential question is if vague law is permissible. This is a very controversial topic of jurisprudence and it is beyond the scope of this research to include a comprehensive discussion on this jurisprudential matter. But it is important to clarify the stance of the book on this matter.
This book rejects any arguments seeking to establish and justify a relationship between vagueness and the rule of law.26 In fact, a law cannot be made vaguely. Any vague law is inconsistent with the underlying values of the rule of law, especially those of legal certainty explained below. “Dismissing the notion of legal certainty would . . . affect the rule of law doctrine at its core and nobody has convincingly explained why and how this could be justifiable.”27
Defining the minimum requirements of acceptable and genuine laws, Lon L. Fuller regards legal certainty as “one of the most essential ingredients of the rule of law,”28 which embodies the “absolute supremacy of predominance of regular law.”29 Fuller argues that failing to comply with any of the underlying values of the rule of law, including legal certainty, “does not simply result in a bad system of law; it results in something that is not properly called a legal system at all.”30
Legal certainty requires law to comply with some legal values such as “predictability, learnability of law, fair notice, the dignity and efficiency of citizen self-direction under law, equality before the law, [and] freedom from official arbitrariness.”31 In other words, legal certainty requires:
1. The conceptual content of a law be “specific and immediately intelligible”32; thus, “those subject to the law must know what the law is so that they can abide by it and plan their lives accordingly.”33
2. A law must be “factually realisable”34 in the sense that the facts on which it turns “are easily and readily determinable.”35 It should “exclude other substantive considerations that could operate at point of application.”36
3. A law should not call upon citizens to make judgment on their own as to what law may forbid or permits. “Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than [they would] if the boundaries of the forbidden areas were clearly marked.”37
4. A law should accord citizens “the dignity and efficiency of self-direction without official intervention”;38 such official intervention “would diminish the dignity and efficiency of citizen self-direction under law.” The concept of legal certainty is strongly linked to the main notion of the liberal jurisprudence according to which people should be able to predict the consequences of their action and therefore maximize their freedom of choice.
5. A law should promise equality before the law and still more freedom from official arbitrariness by reducing “the opportunities for officials to treat similar cases differently.”39
The book also rejects the position of those who attempt to bypass the-rule-of-law issue of vague laws by arguing that certain degrees of vagueness or certain degrees of certainty within vague law are permissible.40 As Lutz-Christian Wolff points out:
[t]he reference to degrees of flexibility [or vagueness] is, however, misleading. This is because the relationship between legal certainty and flexibility is a mutually exclusive one. Either there is legal certainty or there is rule-inherent flexibility. It is logically impossible to allow both at the same time, as legal certainty will necessarily disappear with the introduction of the tiniest element of flexibility. Moreover, allowing degrees of flexibility would in practice require the quantification of those degrees of flexibility that are allowable. And such quantification would be practically impossible. It also follows that the often quoted tension between flexibility and legal certainty does simply not exist. In fact, it cannot exist. Legal rules are either flexible [vague] or they provide for legal certainty. Rule-inherent flexibility is nothing else but an oxymoron.41
Wolff elsewhere argues that “the requirement of legal certainty is absolute and does not allow bits of it to be sacrificed without giving up the concept altogether. In other words, legal certainty with some flexibility is not possible. It is either all or nothing.”42
Relying on the jurisprudential basis set out here, the book will test the penal measures on terrorist financing against the underlying values of the rule of law, especially those of legal certainty mentioned above. The discrepancies between these measures and the values of rule of law will be regarded as shortfalls of the counterterrorist financing regime and consequently unjustifiable.
Outline of the Book
This book consists of twelve chapters. The first three chapters are concerned with the background to the issue of terrorist financing. Chapter 1 explores the nature and characteristics of terrorist financing, terrorists’ and terrorist groups’ needs, and the way their needs are met and their activities are funded. The exploration of how terrorists meet these needs provides a footing for the examination, in the rest of the book, of the credibility and reliability of the concept that underpins the expansive approach and broad legal measures taken to counter terrorist financing, with a very tenuous link to actual acts of terrorism.
Chapter 2 examines in detail the background of Terrorist Financing Convention, the ideas on which the Convention was drafted and the nature of the negotiation discussions which led to its adoption. This entails an examination of how the drafters of the Convention encountered two main challenges: first, how to define terrorism, terrorist acts, terrorist purposes, and terrorist groups, the financing of which would be criminalized; second, the precise scope of the offense, in particular, how to define the preparatory acts of financing as an independent offense. Chapter 3 examines the FATF’s recommendation that terrorist financing should be criminalized as a predicate offense of money laundering. The FATF is of the opinion that due to the link and nexus between terrorism and organized crime, terrorist financing can be adequately targeted under already existing measures (anti-money laundering measures) established to prevent the financial aspect of (organized) criminal activities. This chapter will assess whether it is reasonable to legislate to prevent terrorist financing on the basis of analogies with money laundering.43
The following three chapters that make up the central part of the book scrutinize the elements of the introduced offense in great detail, engaging in a critique of its foundational elements. Chapter 4 examines the definition of terrorism, terrorist, and terrorist group. The main question it confronts is whether the counterterrorism financing regime provides a solid platform for a better understanding of what is terrorism, a terrorist act or a terrorist group financing of which is the subject matter. Chapter 5 will explore the actus reus of the offense, which consists of the collection and provision of funds. It will examine a very important question: when there is no connection