of “organization.”33 Most of the proposed definitions of “organization” emphasized the hierarchical structure of a group of persons with common objectives,34 and the drafters began to raise doubts over the usefulness of defining “organization.”35 The Convention was finalized and the drafters avoided including a definition of “organization” on the view that the definition of “organization” may vary from one case to another.36 Thus, the minority position that sought to link terrorist financing to terrorist organizations had no impact on the Convention itself.
Even the UN Security Council, which has engaged in the suppression of the financing of groups associated with Al-Qaida and Da’esh, as another method of countering terrorist financing, has failed to define a “terrorist organization” or provide legal guidelines for identifying terrorist groups. Instead, it has adopted an “operational” or listing and delisting approach to the issue.37 What the Security Council has done is that it has identified groups (so far Al-Qaida and Da’esh) regarded by it as terrorist groups. The Security Council in Resolution 1267 (1999) established a committee,38 namely the Al-Qaida Sanctions Committee, and gave it a mandate to create and update a list of individuals, groups, undertakings, and entities regarded to be associated with them. These designated individuals and organizations are subject to severe sanctions: states should freeze all of their assets, “prevent their entry into or the transit through their territories” and prevent the supply, sale, and transfer of arms and weapons or technical advice and assistance related to military activities.39 The Security Council in Resolution 2253 (2015) provides a list of activities (such as financing, supplying arms to, or recruiting for these groups) indicating “an individual, group, undertaking or entity is associated” with identified groups.40
Having regard to the information provided by the Member States and regional organizations,41 the committee, which consists of the Security Council Member States, is obliged to make a decision (by “consensus of its members”) on whether an individual or organization proposed is eligible to be designated as terrorist or delisted from the list.42 However, the inclusion of a group on the list provided by the UN Security Council is not always considered as “conclusive evidence” of the terroristic nature of that group. In this regard, an Italian court argued that the list has merely “an administrative value,” which does not “override the principle of the free assessment of evidence by an independent judge.”43
Designating an individual or group as terrorist without instituting criminal proceedings has also been adopted by some States. For instance, in the United States, a group may be designated as a terrorist group by the Secretary of State in consultation with the Attorney General and the Secretary of the Treasury.44 The main criterion used to designate a group as terrorist is that the group engages in terrorist activity or “retains the capability or intends to engage in terrorist activity or terrorism.”45 As will be discussed in chapter 11, this approach, however, is subject to criticism because of the lack of a certain legal base and procedure for designating individuals or groups and freezing their assets.46 In fact, this approach reduces the degree of judicial control of the designation process, and, instead, risks politicizing the targeting process,47 which in turn increases the risk of failure to abide by fundamental principles including the right to a fair hearing, “due process, right to property and freedom of association.”48
The absence of a definition of a terrorist group or legal requirements for identifying terrorist organizations has resulted in disagreement among states and international organizations about which organizations or individuals should be listed or delisted.49 In this regard, it is instructive to compare the list of states’ and international organizations’ blacklist of terrorist organizations since “there are notable omissions.”50
The importance of addressing the organizational character of the offense of terrorism, however, has been highlighted by the European Council through its establishment of terrorist group offenses. The EU Council Framework Decision of June 13, 2002 on Combating Terrorism in Article 2(2) of the Framework Decision requires the Member States of the European Union to criminalize “directing a terrorist group” as well as “participating in the activities of a terrorist group including by supplying information or material resources or by funding its activities in any way, with knowledge of the fact that such participation will contribute to the criminal activities of the terrorist group.”51 Similar to the definition of “organized criminal group” provided by the 2000 United Nation Convention against Transnational Organized Crime (hereinafter the Palermo Convention),52 the Framework Decision defines a terrorist group as a “structured group of more than two persons which [has been] established over a period of time and [is] acting in concert to commit terrorist offences.”53 A “structured group” means “a group that is not randomly formed for immediate commission of an offence and that does not need to have formally defined role for its members, continuity of its membership or a developed structure.”
The Framework Decision is applied by EU Member States, but using somewhat different interpretations.54 For instance, the financing of a terrorist organization in the Netherlands comes close to the notion of inchoate crime55 but it does not merge into the category of a preparatory offense in the sense that a direct relation between the act of financing and a specific planned or completed terrorist act is not necessary.56 In other words, the Netherlands criminalizes the financing of a terrorist group as “participation” in the group under Article 140a of the Penal Code. In general, participation in a group whose aims are to commit offenses was regarded as “the preparatory acts of entering into and maintain a long-lasting collaboration, which is aimed at commission of the crime.”57 In the case of terrorist financing, Article 140a does not require that the funds collected and provided be used for the commission of a specific act, or are intended to be used for such an offense. The requirement is that the funds should be collected or provided for the “benefit” of a terrorist organization.58 According to the Dutch case law, an “organization” was “a structured and lasting form of collaboration between two or more persons.”59
Spain criminalizes the financing of a terrorist group as “belonging” to the group.60 According to the Article 571(3) of Spanish Criminal Code, terrorist organizations are those groups which (1) are formed by a large number of persons, (2) possess weapons or dangerous instruments, and (3) have the particular purpose of “subverting the constitutional order or seriously breaching public peace.” The financing of such a group under the Article 576(1) of the Spanish Criminal Code is considered as an act of “collaboration with the activities or the purposes of a terrorist organisation.” Collaboration, in Article 576(2), is defined as the provision of
information on . . . or use of accommodation or storage facilities; concealment or transport of individuals related to terrorist organisations or groups; . . . and, in general, any other equivalent form of co-operation, aid or mediation, economic or of any other kind whatsoever, with the activities of those terrorist organisations or groups.
Unlike the approach taken by Spain, some Ibero-American countries do not establish an independent offense of terrorist financing. Argentina, for example, classifies terrorist financing as “illicit association” to a terrorist organization (Article 210 of the Argentine Criminal code).61 Colombia, in Article 340 of the Colombian Criminal Code, treats terrorist financing as an agreement to commit crimes,62 which is similar to the concept of conspiracy in common law countries.
Such a reference to “association” or “agreement” definitely requires the proof of a stronger connection between acts of financing or funds and terrorism from which the criminality of the terrorist financing offense must be derived. Such a requirement was not, however, added to the proposal of the delegations who asked for limiting the scope of the terrorist financing offense to financing terrorist organizations, nor to the recommendations provided by the FATF.
The FATF recommends the criminalization
