the amount of money these groups would seek “would be much smaller; the means used to raise them would vary widely and depend on the local conditions, . . . there would be much less need for fund transfers and the communication among groups . . . would be minimal.”88 The U.S. 9/11 Commission report makes a valid point that if a terrorist group is “replaced by smaller, decentralized terrorist groups, the premise behind the government’s efforts that ‘terrorists need a financial support network’ may become outdated.”89
Lastly, by criminalizing money laundering techniques, the freezing and confiscation of the proceeds of criminal activities can be facilitated, attacking terrorist finance as a tool “to starve of funds can be ‘problematic’ and ‘premature.’”90 The main problem in this regard derives from the fact that the nature of terrorist financing conduct is “the inverse of the structure of the money laundering offence.”91 While money laundering offenses are premised on predicate offenses like drug trafficking having already taken place, the principal offense of terrorist financing in most cases is not committed or even attempted yet if the financing itself is prosecuted as a separate offense. As will be discussed in chapters 6 and 7, criminalization thus depends on a hypothesis of future criminal activity. In addition, freezing such funds appears to be much more difficult than freezing funds in money laundering cases as the law enforcement agencies again need to establish a hypothetical link between the suspicious funds and a possible terrorism connection, rather than relying on an existing or supposed connection with an existing predicate offense.
In the absence of an actual and clear connection between financing activities/funds and terrorist activities, it makes more sense to prosecute the financial criminal activities of terrorists, terrorist groups, or their supporters as “various forms of transnational crime” addressed by conventions on money laundering and organized crimes.92 It is worth noting that the effectiveness of these conventions in the fight against money laundering and organized crimes is questioned.93
Conclusion
Terrorist financing was adopted as an independent crime globally through Terrorism Financing Convention. The drafters of the Convention were determined to introduce an offense with a very broad scope to the extent that it includes financing of activities which may not be connected to preparation or commission of any terrorist act. But the question is whether and how far criminal law can justifiably be expanded to include such an offense. This is the question that this book seeks to answer in chapter 4 onward.
It has been argued that the counterterrorist financing measures including criminalization and confiscation measures have been adopted by a close analogy with the measures adapted to counter organized crimes and money laundering. Regarding the nature and characteristic of terrorism and terrorist financing, such an adoption is inaccurate and seems to be ineffective. Although this book is not designed to examine the effectiveness of the expansion of anti-organized crimes or anti-money laundering tools to counter terrorist financing, the examination of some of the notions on which this analogy is based seems to be important as they play a significant role in justifying the idea that terrorist financing can be addressed independently. For example, relying on the notion that terrorism and terrorist financing is so closely connected to organized crimes and money laundering, the FATF recommends the criminalization of terrorist financing as an independent offense and a predicate crime of money laundering. The following chapter will examine this recommendation, which has had a considerable role in the diffusion of the criminalization approach adopted by Terrorist Financing Convention.
NOTES
1. Michael Levi, “Combating the Financing of Terrorism: A History and Assessment of the Control of ‘Threat Finance’” 2010 50(4) British Journal of Criminology 650, p. 666.
2. Violent Crime Control and Law Enforcement Act of 1994 (United States), Pub. L. 103-322, September 13, 1994, 108 Stat. 1796 (Codified as amended at 18 U.S.C. § 2339A).
3. UNGA, A/RES/49/60, February 17, 1995.
4. Foreign Affairs and International Trade, Ottawa Ministerial Declaration on Countering Terrorism: P-8 Ministerial Conference on Terrorism (Ottawa, Canada, December 12, 1995).
5. Raphael Bossong, The Evolution of EU Counter-Terrorism: European Security Policy After 9/11 (Routledge, Abingdon, Oxon, 2013), p. 8.
6. UNGA, A/RES/51/210, January 16, 1997, s. I (3)(f).
7. Ibid., s. I (3)(f).
8. 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).
9. Ministry of Foreign Affairs Japan, Foreign Ministers’ Progress Report: Denver Summit of the Eight (Tokyo, 1997).
10. UNGA, A/RES/53/108, January 26, 1999.
11. UNGA, Report of the Ad Hoc Committee Established by General Assembly Resolution 51/210 of 17 December 1996 (A/54/37, May 5, 1999).
12. UNGA, Measures to Eliminate International Terrorism (A/C.6/54/L.2, October 26, 1999).
13. UNGA, Measures to Eliminate International Terrorism (A/54/615, December 10, 1999).
14. See UNGA, A/54/PV.76, December 9, 1999. See also UNGA, A/RES/54/109, February 25, 2000.
15. UN International Convention for the Suppression of Terrorist Bombings (New York, December 15, 1997). For more details see Clifton M. Johnson, “Introductory Note to the International Convention for the Suppression of the Financing of Terrorism” 2000 39(2) International Legal Materials 268, p. 268.
16. This is similar to Article 3 of UN International Convention against the Taking of Hostages (New York, December 17, 1979), and Article 4(4) of UN Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal, September 23, 1971), and Article 4 of UN Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (Rome, March 10, 1988).
17. Article 2(b). This is identical to Article 12 of UN International Convention against the Taking of Hostages, and Article 19 of the Terrorist Bombing Convention, above n 15.
18. This is similar to Articles 17 and 18 Terrorist Bombing Convention, above n 15.
19. The FATF is an intergovernmental body established by the G7/8 in 1989 to counter money laundering.
20. Johnson, above n 15, p. 269.
21. See, for example, UNGA, A/RES/49/60, February 17, 1995. Or see also UN Doc., A/CONF 157/23, July 12, 1993. Or UNGA, A/AC 254/4 Rev.1, February 10, 1999.
22. Earlier versions of some sections of this chapter and chapters 5, 6, and 7 were published in New Criminal Law Review. See Hamed Tofangsaz, “Criminalization of Terrorist Financing: From Theory to Practice” 2018 21(1) New Criminal Law Review 57.
23. These conventions are: UN Convention for the Suppression of Unlawful Seizure of Aircraft (The Hague, December 16, 1970). UN Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal, September 23, 1971). UN Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents (December 14, 1973). UN International Convention against the Taking of Hostages (December 17, 1979). UN Convention on the Physical Protection of Nuclear Material (Vienna, March 3, 1980). Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation
