Combating Terrorist Financing: General Report of the Cleveland Preparatory Colloquium

Article excerpt

The Case Western Reserve University School of Law's Institute for Global Security Law & Policy and the International Association of Penal Law sponsored the "World Conference on Combating Terrorist Financing" from April 10-11, 2008. The symposium, hem at the Case Western Reserve University School of Law in Cleveland, Ohio, was part of the Preparatory Colloquium for the Eighteenth International Congress of Penal Law. Representatives from each country participating in the Colloquium were asked to submit a "country report" summarizing laws aimed at combating terrorist financing in their respective countries. This General Report synthesizes the individual country reports and provides overall recommendations about how to combat terrorist financing around the world. The General Report considers country reports from the following countries: Argentina, Austria, Belgium, Brazil, Croatia, France, Germany, Guinea, Italy, Hungary, Japan, Poland, Romania, and the United States.

INTRODUCTION

The international community accorded high priority to the issue of terrorist finance in the 1990s as evidenced by the General Assembly Resolution 51/210, (1) and more importantly, by the International Convention for the Suppression of the Financing of Terrorism. (2)

It is beyond doubt that financial controls against the financing of terrorism are useful and necessary. They perform a number of functions, including the reduction of possible harm caused by terrorist operations and attacks. Financial controls also facilitate the monitoring of militant activities so that preventive actions can be taken. They also enable the reconstruction of events and the detection of co-conspirators who can then be pursued. Moreover, the knowledge that all types of financial activities are under scrutiny forces extremist groups to make frequent tactical changes and engage in communications, which generates valuable opportunities for intelligence gathering.

The Convention for the Suppression of the Financing of Terrorism gained new life after the September 11, 2001 attacks in the United States of America. In the aftermath of 9/11, numerous initiatives and measures supplemented this convention. What was previously known as anti-money laundering (AML) speedily expanded to also include countering terrorist finance (AML/CFT).

The new acronym reflected the consideration of the two types of activities as similar in at least many important respects, thereby justifying not only the parallel treatment of money laundering and terrorist finance for policy responses but also the application of largely the same legislative and regulatory tools against both activities. As seen in national reports received, this occasionally identical treatment gives rise to difficulties and calls for a thoughtful reconsideration of existing national and international measures.

National CFT laws and measures grew in number, scope and geographic application due to Financial Action Task Force (FATF), U.N., E.U., and other initiatives, including some springing from national levels. Lists of designated suspected terrorists were created and circulated and assets of those named in such lists were frozen, including those of non-profit organizations. Laws were introduced regarding terrorist finance and material support for terrorism.

Several heated debates accompanied these developments, including the process by which suspects' names are placed on a designation list and how should the names of those found innocent be removed from them. In some instances, the process of removal is unclear, while no judicial or other legal process addresses the status of a suspect on such lists; that is, there is frequently no criminal or other charge, no court proceeding and, in essence, no means for a judicial determination of guilt or innocence of named suspects.

Nevertheless, the effects of executive decisions made on the basis of not fully known or transparent criteria and evidence are devastating for those affected. …