Suppression Of Terrorist Financing. Hamed Tofangsaz
Foreign Ministers’ Progress Report: Denver Summit of the Eight (Tokyo, 1997).
11. 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).
12. The Terrorist Financing Convention, above n 6, Preamble.
13. Financial Action Task Force, FATF Guidance: Crimialising Terrorist Financing (Recommendation 5) (October 2016), para. 1.
14. See Article 2 of Terrorist Financing Convention. Financial Action Task Force, International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation (February 2012), p. 11.
15. Marja Lehto, Indirect Responsibility for Terrorist Acts: Redefinition of the Concept of Terrorism beyond Violent Acts (M. Nijhoff Publishers, Boston, 2009), p. xxxiv.
16. Antony Duff, “Perversions and Subversions of Criminal Law” in Antony Duff and others (eds) The Boundaries of the Criminal Law (Oxford University Press, 2010), p. 91.
17. Lutz-Christia Wolff, “Law and Flexibility—Rule of Law Limits of a Rhetorical Silver Bullet” 2011 11 Journal Jurisprudence 549, p. 559.
18. Ibid., p. 551.
19. P. S. Atiyah and Robert S. Summers, Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions (Clarendon Press, Oxford, 1987), p. 74.
20. Wolff, above n 17, p. 556.
21. Ibid., p. 556.
22. Grayned v. City of Rockford (1972), 408 U.S. 104, p. 112. See also Boos v. Barry (1988), 485 U.S. 312, p. 332.
23. Robert S. Summers, “How Law Is Formal and Why It Matters” 1997 82(5) Cornell Law Review 1165, p. 1218.
24. Wolff, above n 17, p. 557.
25. Lutz-Christia Wolff, “Flexible Choice-of-Law Rules: Panacea or Oxymoron?” 2014 10(3) Journal of Private International Law 431, p. 434.
26. See, for example, H. L. A. Hart, The Concept of Law (Oxford University Press, London, 1972). See also Adam Gearey, Robert Jago, and Wayne Morrison, The Politics of the Common Law: Perspectives, Rights, Processes, Institutions (Routledge-Cavendish, 2008).
27. Wolff, above n 17, p. 560.
28. Lon L. Fuller, The Morality of Law (Yale University Press, New Haven, CT, 1964), p. 63.
29. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (8th rev. ed., Liberty Fund Inc., 1982), p. 202.
30. Fuller, above n 28, p. 39.
31. Summers, above n 23, p. 1216.
32. Ibid., p. 1217. A U.S. court, in United States v. Williams (2008), 553 U.S. 285, 304, para.1846, held that a law is vague and therefore void when it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.”
33. James R. Maxeiner, “Legal Certainty and Legal Methods: A European Alternative to American Legal Indeterminacy?” 2007 15(2) Tulane Journal of International and Comparative Law 541, p. 549. See also Takis Tridimas, The General Principles of EU Law (2nd ed., Oxford University Press, 2006), p. 242.
34. Robert S. Summers, The Jurisprudence of Law’s Form and Substance (Ashgate, Aldershot, 1999).
35. Summers, above n 23, p. 1217.
36. Ibid.
37. Grayned v. City of Rockford (1972), 408 U.S. 104, para. 109. See also Musser v. Utah (1948), 333 U.S. 95, para. 9.
38. Summers, above n 23, p. 1217.
39. Kolender v. Lawson (1983), 461 U.S. 352.
40. See, for example, M. O. Chibundu, “Globalizing the Rule of Law: Some Thoughts at and on the Periphery” 1999 7(1) diana Journal of Global Legal Studies 79. Symeon C. Symeonides, “The American Revolution and the European Evolution in Choice of Law: Reciprocal Lessons” 2008 82(5) Tulane Law Review 1741. Edoardo Vitta, “The Impact in Europe of the American ‘Conflicts Revolution’” 1982 30(1) American Journal of Comparative Law 1.
41. Wolff, above n 17, p. 562
42. Wolff, above n 25, p. 439.
43. This question has been also examined by Armand Kersten from a “methodological” perspective. See Armand Kersten, “Financing of Terrorism—A Predicate Offence to Money Laundering?” in Mark Pieth (ed) Financing Terrorism (Kluwer, Dordrecht, 2002), pp. 49–56.
44. Michael McConville and Wing Hong Chui, Research Methods for Law (Edinburgh University Press, Edinburgh, 2007), p. 4.
45. Terry Hutchinson, “The Doctrinal Method: Incorporating Interdisciplinary Methods in Reforming the Law” 2015 8(3) Erasmus Law Review 130, p. 131.
46. Article 32 requires “recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result which is manifestly absurd or unreasonable.”
Before examining the legal tools adopted to counter terrorist financing, it is essential to understand, from a factual perspective, the nature and characteristics of terrorist financing as a transnational phenomenon. First, the process of terrorist financing will be examined in regard to the funding requirements of terrorists and terrorist groups, the sources of funds, and the methods and tools that terrorists use to raise, move, and store their funds. The last part will address terrorism typologies on the basis of the strategies that terrorists apply to finance their activities. This chapter will not discuss the legal definition of terrorist financing, terrorism, terrorist acts, or terrorist groups.
The discussions provided in this chapter will help to examine, in the following chapters, the credibility and reliability of the idea that underpins the approach and legal measures taken to address terrorist financing—the approach which does not require a link to the preparation or commission of specific acts of terrorism. As will be pointed out in chapter 2, a distinctive effort has been made by the international community to push this idea, although it is the submission of the book that it is fundamentally flawed partly because of ignorance of basic facts about the nature and characteristics of terrorist financing.1
The Financial Needs of Terrorists and Terrorist Groups
The first step in identifying the flow of funds to what is regarded as terrorists is to understand the funding requirements of terrorists.2 Terrorists’ requirements can be explained with regard to their activities or the nature of their needs.
In terms of terrorist activities, terrorists’ financial needs can be divided into two categories. Terrorists need “operational resources” associated with conducting specific terrorist attacks; these include the costs of attacks, the salaries of individual operatives, communications, training, travel, and logistics. Terrorists, in the case of a large group, also require resources for their “broad organizational requirements” to create, maintain, and develop a terrorism infrastructure.3 Evidence shows that while the current operational costs of terrorist attacks are often very low relative to the damage they cause,4 organizational costs are significantly higher.
Regarding the nature of funding requirements, terrorists’ resources are classified into three categories: money and financial instruments, tangible and intangible resources.5 “Money” and