the Convention was drafted and the nature of the negotiation discussions which led to its adoption. This entails an examination of how the drafters of the Convention encountered two main challenges: first, how to define terrorism, terrorist acts, terrorist purposes, and terrorist groups, the financing of which would be criminalized; second, the precise scope of the offense, in particular, how to define the preparatory acts of financing as an independent offense. Chapter 3 examines the FATF’s recommendation that terrorist financing should be criminalized as a predicate offense of money laundering. The FATF is of the opinion that due to the link and nexus between terrorism and organized crime, terrorist financing can be adequately targeted under already existing measures (anti-money laundering measures) established to prevent the financial aspect of (organized) criminal activities. This chapter will assess whether it is reasonable to legislate to prevent terrorist financing on the basis of analogies with money laundering.43
The following three chapters that make up the central part of the book scrutinize the elements of the introduced offense in great detail, engaging in a critique of its foundational elements. Chapter 4 examines the definition of terrorism, terrorist, and terrorist group. The main question it confronts is whether the counterterrorism financing regime provides a solid platform for a better understanding of what is terrorism, a terrorist act or a terrorist group financing of which is the subject matter. Chapter 5 will explore the actus reus of the offense, which consists of the collection and provision of funds. It will examine a very important question: when there is no connection between acts of financing or funds and an actual (or planned) terrorist act, whether (and if at all) and how, the actus reus of the offense should be interpreted in order for its criminalization to be justified.
Chapters 6 and 7 illustrate the key role of the mental element of the offense of financing terrorist acts defined by the Convention, FATF, and the UN Security Council in imposing liability. They will discuss that the heavy reliance on poorly defined and ambiguous fault elements (knowledge and intention) without linking to any (planned) terrorist act undermines the case for principled criminalization.
Chapter 8 discusses the important question of how such criminalization has gone wrong. It examines the justifiability of the terrorist financing offense with regard to the principles and values that liberal criminal law is based on. The values of liberal criminal law are used as a yardstick because, as explained, the idea of criminalization of terrorist financing was proposed and developed mainly by Western liberal States. The diffusion of these criminalization measures has been overwhelmingly supported by those states or by the intergovernmental or international organizations backed by those states. It is apt, therefore, to engage in a normative analysis of this offense against the values said to underpin liberal criminal law. For purposes of convenience, the chapter limits the scope of discussion of the issue to the context of Anglo-American criminal law.
The rest of the book examines other penal measures adopted and developed, as a result of obligations to Terrorist Financing Convention, to freeze and confiscate terrorist funds. It will also examine the UN Security Council’s resolutions which deal with freezing terrorist funds. The underlying question is, in the presence of so many ambiguities in the definition of the terrorist financing offense, whether and how funds or property, suspected to be linked to terrorism, can be frozen or confiscated.
In order to understand the complexity and function of modern forfeiture law, special attention needs to be devoted to the history of English law which has had a significant influence on the existing (now being globalized) laws on confiscation. For this reason, chapter 9 looks briefly at the historical concepts on which modern forfeiture laws are based. It argues that the basis of current forfeiture laws is unfortunate reconstruction of some long abolished ancient concepts.
Chapters 10 and 11 will discuss the human rights issues that arise from the adoption and implementation of seizure and confiscation provisions in the context of the European Union (EU). The EU and some of its Member States’ approach toward seizure and confiscation of terrorist funds is used as a case study because the EU, as a value-based or human rights-based community, appears to have a strong commitment to fight against terrorism while maintaining fundamental principles, such as respect for the rule of law, good governance, fundamental freedoms, and promoting human rights and democratic values. In addition, many of the EU’s Member States have supported and are still supporting the creation and diffusion of the counterterrorist financing regime.
Chapter 12 will examine the response of another regional community to the terrorist financing measures, namely the Association of Southeast Asian Nations (ASEAN). It does not examine why ASEAN or its Member States adopted and implemented the measures in a certain way, nor does it analyze the political or legal factors that shape their response to the measures. The main purpose in this chapter is to investigate and identify the possible problems that may arise from the application of the counterterrorist financing measures introduced by the Convention, and diffused by FATF and its Western states’ supporters in a non-Western environment.
Methodology
This book is a critical conceptual analysis of international and domestic laws on the criminalization of terrorist financing and confiscation and seizure of terrorist funds. It belongs to the category of analytical research as it is involved in identifying and analyzing facts about terrorist financing (chapters 1 and 3), clarifying the law on terrorist financing (chapters 2 and 9), and determining human rights issues arising from its implementation (chapters 4–7 and 9–12). This is carried out “by a distinctive mode of analysis to authoritative texts that consist of primary and secondary sources,”44 and by understanding of rules and principles governing criminal liability, and by adopting “reasoning methods borrowing from philosophy and logic.”45
The book also engages in the interpretation of international law and recommendations on terrorist financing. This interpretation is, of course, limited by the rules of interpretation provided by the Vienna Convention on the Law of Treaties 1969. Article 31 of this convention states that a “treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” The book heavily relies on the supplementary means of the interpretation indicated by Article 32 of the Vienna Convention;46 in particular, the book reviews the preparatory work of, and negotiations and discussion made by the State Parties on, the drafts of the Terrorist Financing Convention in order to determine the meaning of provisions at issue.
In addition, to show how the counterterrorist financing regime has been diffused, the book examines states’ and regional parties’ subsequent practice when implementing the Convention particularly through the FATF and the Security Council as an interpretive tool. It specifically examines the approach of two influential regional communities, namely EU and ASEAN, to the adoption and implementation of the counterterrorist financing measures (chapters 9–12). As mentioned, the EU has been chosen because it is a value-based community which has a significant emphasis on the human rights and democratic values not only within the Europe but also in its dialogue with other states or regional communities. ASEAN has been chosen because its members are often accused of being authoritarian and not being in compliance with the human rights.
Finally, the book also relies on the scholarly literature in interpreting the counterterrorist financing measures and particularly the discussions on the conceptual underpinnings of criminalization of the terrorist financing as an independent offense. It examines the justifiability of these underpinnings with regard to the principles of liberal criminal law as recognized in Anglo-American states (chapter 8).
NOTES
1. See Gérard
