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
