offense. It provides a wider definition of terrorist group in the sense that it does not require of a terrorist organization some measure of structure or existence for a particular time.63 The FATF reduces the concept of terrorist groups to broadly cover
any group of terrorists that: (i) commits, or attempts to commit, terrorist acts by any means, directly or indirectly, unlawfully and wilfully; (ii) participates as an accomplice in terrorist acts; (iii) organises or directs others to commit terrorist acts; or (iv) contributes to the commission of terrorist acts by a group of persons acting with a common purpose where the contribution is made intentionally and with the aim of furthering the terrorist act or with the knowledge of the intention of the group to commit a terrorist act.
Terrorist Financing as an Independent Offense
Despite the above-mentioned approaches, the tendency in the negotiations on the draft Convention was toward retaining an independent offense of terrorist financing.64 The idea that the provisions on accomplices in the sectoral conventions were sufficient to cover all aspects of terrorist financing was rejected. It seems that the drafters were determined to give the new offense a broad scope which covers “the financing of any and all crimes” defined by or annexed to the Convention.65 It was argued that the financing of commission or preparation of a terrorist act, in and of itself, is as serious an offense as the actual terrorist act.66 This notion is based on the assumption reflected in the preamble of the Convention: “the number and seriousness of acts of international terrorism depend on the financing that terrorists may obtain.”67
In other words, the injurious and dreadful consequences of terrorism served an important function in the construction of terrorist financing as an independent offense.68 It is argued that terrorist offenses are “multi-offensive” in that they endanger many “protected values” such as “life, physical integrity, property, freedom and national security.”69 As terrorist financing allows terrorism to become real, the act of financing terrorism poses ex ante threat to those values too.
It is also argued in the scholarly literature that terrorist financing should be considered to constitute “a separate primary harm rather than an ancillary harm” since “reliable financing” can change the conventional harm of terrorism from “sporadic and local” and give it a “continuous and broader nature” by enabling terrorists to expand the scale and scope of their influence across vast areas and to expose various people.70 The argument goes that solid resources enable terrorist groups such as the FARC and Al-Qaeda to recruit members, to supply themselves with adequate weapons and to launch and expand their activities anywhere in the world. So, it was concluded that the financers of terrorism should be treated independently (even in the absence of a link to a terrorist act) and punished as severely as those who commit terrorism.71 The application of this approach can be seen in Australia where the penalty for the commission of terrorism financing is equal to the one which applies to the preparation or commission of terrorism.72 But the question that this book seeks to answer is: whether, and how far, criminal law can (or should) be stretched to accommodate the terrorist financing offense whose criminality is derived from terrorism to which it does not need to be linked?
Criminalization of Terrorist Financing by Analogy with Organized Crimes
But before examining this question, it is worth noting that criminalization of terrorist financing should be regarded as a part of “a larger shift in criminal justice from an offender-oriented toward a proceeds-oriented” approach73 specifically developed in the fight against organized crime because of producing large profits for criminals. The main justification for the adoption of this approach is its “possible deterrence value.”74 It is believed that attacking the root of all economically motivated crimes would remove the incentive of perpetrators to commit those crimes.75 At an organizational level, “going after the money” is assumed to incapacitate criminal organizations by taking away their financial lifeblood, eliminating their capacity to trade, and reducing their attractiveness to recruits.76
The criminalization of money laundering is considered the key component of this approach since criminals may hide the proceeds with third parties77 or give them a legitimate appearance to the extent that confiscation is not possible.78 So, for the sake of the confiscation of such proceeds, criminalizing laundering can provide a legal tool for law enforcement authorities to tackle suspicious assets either in the hands of the third parties or those of the real owner79 without requiring the prosecution to prove the guilt of the criminals of the predicate crime beyond a reasonable doubt.80 That is, confiscation is possible by proving the charge of money laundering conduct or the “ownership” of the proceeds. In addition, the fight against money laundering is considered as a means of collecting evidence against the higher-level criminals who stay aloof from criminal activities, but who do come into contact with the proceeds derived from the criminal activities.81 This contact provides a paper trail of records which constitute the involvement of the top criminals in the criminal activities (predicate crime) from which the proceeds are derived.
Regardless of how effective the application of this approach has been in the fight against organized crime,82 the question is whether the logic of this argument fits the case of terrorist financing; or whether, terrorism and terrorist financing are equivalent to organized crimes and money laundering to the extent that the same approach can be adopted to counter them? Although the examination of these questions falls outside the scope of this research, it is worth addressing them very briefly here and in the next chapter, because the approach taken by the Terrorist Financing Convention and developed by the FATF and UN Security Council to counter terrorist financing independently of terrorism is heavily reliant on an analogy with organized crimes and money laundering. However, this analogy is inaccurate and may be ineffective for the following reasons.
First, it should be noted that terrorism is not a crime necessarily committed for the purpose of monetary gains. It is a “politically motivated act of violence”83 with two distinctive financial characteristics: (1) terrorists need less operational money to commit, or prepare to commit, terrorist acts than those criminals who seek to maximize their financial gains;84 (2) terrorist funds are derived from legal and illegal sources. Taking these facts into account, it seems implausible to argue that going after terrorists’ funds undermines their incentive simply because funding terrorism is “a product of an ideology.”85 As long as there is a desire for politically or ideologically inspired people to seek their purposes through violence, they will discover a way to do so.
In terms of an impact on the organizational capacity of terrorist groups, while drying up terrorists’ funds may have disruptive effects on the potential of the groups to recruit and conduct operations on the scale of the September 11, it does not necessarily result in deterring or resolving “terrorism risks.”86 Michael Levi argues that
terrorists need and want less money than do those who seek to maximize economic gains. Furthermore, profit-seeking criminals will usually come around gain and their individual crimes will make little impact upon levels of criminality, creating more incentives to patient investigation of nodal figures. By contrast, the aim of anti-terrorist policy is to minimize the chances and consequences of violence on every possible occasion, so patience is more costly. However, if they have any effect at all, controls on licit sources of finance may displace terrorist finance from legal into illegal channels. Without verifiable evidence on how many attacks were prevented, it seems plausible that tighter financial and precursor controls ultimately reshape rather than resolve terrorism risks, reducing the capacity to cause spectacular harms in jurisdictions that are more expensive to reconnoitre. As in organized crime, it then remains moot whether it is better or worse to have a widely distributed set of independent [for example] al-Qa idah-inspired attacks compared with a more centrally regulated and perhaps more individually damaging set of attacks.87
