Suppression Of Terrorist Financing. Hamed Tofangsaz

place. These measures will not be discussed by this book.

      

      (b) Penal measures: These aim at the enforcement of the criminal law in relation to the acts of financing of terrorism. The two main penal legal devices used in the fight against terrorist financing are criminalization of financing terrorism and the freezing and confiscation of terrorist funds.

      There has been a great deal of analysis of the effectiveness of domestic measures against terrorist financing, but not of the international regime created by the Convention itself. This book will only examine the penal (criminalization and confiscation) measures closely and exhaustively.

      The Notion Underpinning the Penal Measures

      Under the Convention (and the guidance of the FATF’s recommendations), states are asked to criminalize terrorist financing and confiscate terrorist funds without a link to, or the existence of, a terrorist act.¹⁴ The underlying idea on which this preemptive approach is based is that, because terrorism is a serious offense which relies heavily on the funds derived from criminal (organized) activities, it should be tackled at a very early stage before it is actualized. This seems to be the main justification for the enactment of a wide range of terrorism-related offenses, including terrorist financing, which criminalize preparatory conduct, as a stand-alone offense, even in the absence of the connection between the alleged preparatory conduct and terrorist activities.

      However, in the absence of such a connection, the main difficulty is identifying the origin of the criminality of the impugned conduct. As will be discovered, the offense, in its current formulated form, relies heavily on its mental element to remedy this ambiguity; that is, it is the mental element of a terrorist financing offender, which is the basis of the imposition of criminal liability or confiscation sanctions.¹⁵ This approach has expanded the boundary of the criminal law to enable it to include activities and associations that are not normally criminalized as independent offenses under conventional criminal law, due to their preparatory nature or because the connection to the possible subsequent offenses for which they are carried out is vague.

      As explained, the adoption of this approach by Terrorist Financing Convention, FATF, and the UN Security Council has been defended on the grounds of the heinous and catastrophic effects of terrorist attacks. In other words, the counterterrorist financing measures’ purpose is to prevent terrorist attacks preemptively by disturbing and dismantling the financial capabilities of terrorists, terrorist groups, and their supporters long before their resources turn into catastrophes. There is no doubt that law should be used not only to deal with harmful and wrongful conduct such as terrorism, but also with conduct that falls short of causing actual harms but contributes to or facilitates the commission of potential terrorist attacks. Indeed, criminalization of attempts is a well-rationalized subject of criminal law which has its own rules and boundaries. As Antony Duff argues, “A law that condemned and punished actually harm-causing conduct as wrong, but was utterly silent on attempts to cause such harms and on reckless risk-taking with respect to such harms, would speak with a strange moral voice.”¹⁶ But the question is how far criminal law can (or should) be stretched to fulfill this task? Does criminalizing terrorist financing, which fits neatly into the category of the law of attempt or inchoate offense, as an independent offense without a link to any terrorist act push criminal law beyond its limits?

      The purposes of this book are to examine the justifiability of the adoption and development of this approach to criminalizing terrorist financing and confiscating terrorist funds as well as identifying the legal issues and challenges that arise from its implementation. It should be noted that the purpose is neither to question the basic need for countering terrorist financing nor to provide a lesson in the arcane history of the laws on terrorism; instead, it is to draw attention to the actual and potential dangers which may be inherent in counterterrorist financing measures. In addition, the book will not examine whether the regime has been effective in terms of cutting off terrorists’ funds; instead, it will examine whether it has been based on a theoretically and conceptually correct foundation in such a way that these laws’ implementation does not harm (innocent) citizens, violate their rights, or pervert the criminal law.

      Research Questions

      To achieve the purpose defined above, the book will seek to answer the following questions:

      1. What is terrorist financing? And how has it been conceptualized?

      2. What is the basis of criminal liability when there is no connection between financing and any criminal (terrorist) activity? Does the terrorist financing offense extend criminal liability based on mens rea vaguely and unjustifiably?

      3. Are the criminalization and confiscation of terrorist financing in the way that international treaties have been adopted and diffused understandable, justifiable, and consistent with the accepted principles of criminal law and the principle of legality?

      

      Hypotheses

      The main hypothesis of the book is that this extension is untenable in terms of existing principles of criminal law. This breaks down into the following arguments:

      1. A distinctive effort has been forthcoming from the international community to push the idea that terrorism and organized crimes are closely connected, so an approach similar to that taken to counter organized crimes and money laundering can be taken to address terrorist financing. It is the submission of the book that the counterterrorist financing regime which relies on this idea is fundamentally flawed partly because basic facts about the nature and characteristics of terrorist financing have been ignored.

      2. Criminalization of terrorist financing as an independent offense, in the way drafted in the Terrorist Financing Convention and diffused by the UN Security Council and FATF, stretches out the boundaries of criminal liability beyond the principles of criminal law and beyond the limits of the law of attempts or the law of inchoate offenses which deal with preoperatory offenses. Such a poorly defined and vague offense can result, as will be explored, in massive variations in its application (criminalization and confiscation), in the violation of rule of law (specially the principle of legality) and of some of criminal law principles.

      3. The incorrect conceptualization and criminalization of terrorist financing pave the way for the inaccurate use of freezing and confiscation tools. Obviously, the aim of freezing or confiscation is to enhance the effectiveness of criminal justice systems in the fight against any type of profit-driven (or high cost attempted) crime. However, the appropriateness of the asset-freezing and confiscation measures defined under the terrorist financing regime in the fight against terrorist financing, where the money might not be the fruit of crime or not connected to any terrorist act, can be challenged in the light of human rights limitations. This may also challenge the asset-freezing regime adopted and developed by the UN Security Council, which can be argued as insufficient to address these human rights concerns.

      Vagueness and the Rule of Law

      Based on the “traditional understanding of the rule of law doctrine,”¹⁷ this book claims that the penal measures on terrorist financing are unjustifiably vague and therefore in contradiction with the rule of law. Under this thesis, a law is vague when it fails to offer “guidance as to what the law is in relation to particular issues”;¹⁸ vague laws grant discretion “without standards for its exercise,”¹⁹ or without access to any “methodological tools” for its interpretation.²⁰ Standards or methodological tools may “be available outside a law e.g. on the basis of general principles.”²¹ Sometimes, the context of a law determines its meaning and application.²² Therefore, a law is not vague if the law takes an open form, but at the same time its “context” can be determined by existing standards and methodological tools, or by reference to its context. For example, the law that requires driving “reasonably” is not vague,²³ although it has an open form, if the law offers “a definite interpretation of the word reasonable,”²⁴ or provides guidance on how its vague form shall be filled, that is “how discretion is to be applied.”²⁵

      The terrorist financing penal measures, however, do not fall within any of these exceptions. They pose two types of vagueness in