Resolution, Draft

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Case Western Reserve University School of Law

Case Western Reserve Journal ofInternational LawVolume 41 | Issue 12009Combating Terrorist Financing: Draft ResolutionDraft ResolutionFollow this and additional works at: https://scholarlycommons.law.case.edu/jilPart of the International Law CommonsThis Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons.It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western ReserveUniversity School of Law Scholarly Commons.Recommended CitationDraft Resolution, Combating Terrorist Financing: Draft Resolution, 41 Case W. Res. J. Int'l L. 263 (2009)Available at: https://scholarlycommons.law.case.edu/jil/vol41/iss1/10263 COMBATING TERRORIST FINANCING:DRAFT RESOLUTION *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 9-12, 2008. The symposium, held 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. The Participants in the Prepatory Colloquium prepared this Draft Resolution, which outlines recommendation for how best to combat terrorist financing. The participants in the Preparatory Colloquium of the II Section of the XVIII International Congress of Penal Law, held in Cleveland, Ohio (April 9–12, 2008), propose the following resolution: Considering that the controls against the financing of terrorism are useful and necessary for the purposes of prevention, monitoring, investigation and reduction of harm by terrorist operations Underlining the importance of the UN General Assembly resolution 51/210 of 17 December 1996 (paragraph 3, subparagraph (f)) and the UN Interna-tional Convention for the Suppression of the Financing of Terrorism of 1999 Welcoming the widespread ratification of the UN Convention for the Sup-pression of the Financing of Terrorism of 1999 by Member States Recalling the Council of Europe Guidelines on human rights and the fight against terrorism adopted by the Committee of Ministers on 11 July 2002 at the 804th meeting of the Ministers’ Deputies Taking note of the lack of a universal definition of terrorism and the diver-sity of national definitions and approaches to terrorism finance Reiterating the importance of both risk- and principle-based financial con-trolsReaffirming the wisdom of founding CFT and counter-terrorism policies more generally on reliable evidence and analysis  *  This Draft Resolution was originally published by the International Association of Penal Law. Draft Resolution: Cleveland Preparatory Colloquium, 79 INT’L REV. OF PENAL L.371 (2008), available at http://www.penal.org (subscription only). 264 CASE W. RES. J. INT’L L. [Vol. 41:263 Emphasizing that the financing of terrorism and money laundering practices are often dissimilar in nature and may require different counter-measures Noting the absence of systematic and thorough data collection and analysis regarding the financing of terrorism at national and international levels Expressing concern at the application of certain preventive measures and designation practices without criminal prosecution or effective application of human rights safeguards and guarantees under international law Propose to the XVIIIth International Congress of Penal Law the adoption of the following Resolution.1The need of an adequate system of targeting terrorism finance 1. The establishment of an adequate system of targeting terrorist finance (CFT) is essential in order to fight terrorism. Reducing the possible harm of terrorist operations and attacks, an adequate system of control of terror-ist finance can equally serve to monitor militant activities so that preven-tive actions can be taken. It also enables the reconstruction of events and the detection of coconspirators who can then be pursued; and moreover, the public announcement that financial activities are under scrutiny forces extremist groups to make frequent tactical changes and communications, which generates valuable opportunities for intelligence gathering.  Empirical aspects 2. In the last decade, and particularly after September 11, CFT measures have grown in number, scope and geographic application due to FATF, UN, EU and other initiatives, including many undertaken at national lev-els. Lists of designated suspected terrorists have been created and circu-lated; assets of those named in such lists have been frozen, including those of nonprofit organizations. Laws have been introduced regarding terrorist finance and material support for terrorism.  3. Nevertheless, after 7 years of applying CTF measures, the system and its cost-effectiveness should be thoroughly evaluated and its priorities should be adjusted accordingly. 4. Empirical studies on the dimensions and the ways and means of TF should be encouraged in order to obtain a realistic overview of the actual situation worldwide. As far as possible a global database should be devel-oped/supported. Legal definitions 5. A comparative analysis of the definitions of terrorism and terrorism fi-nancing and other national regulations needs to be undertaken for the pur-1 Questionnaire: I. Empirical Aspects. II. Ratification of universal and regional instru-ments; legal and institutional national framework. III. Prevention of terrorist finance. IV. Freezing of assets. VI. Other considerations. 2009] DRAFT RESOLUTION 265pose of identifying problems and gaps in the implementation of interna-tional commitments. 6. Terrorist financing should be adequately criminalised, irrespective of the commission of an actual terrorist act, and incrimination should not be dependent solely on participation in or assistance to a terrorist group. Evidence-based approaches 7. On the basis of such legal and factual information, studies and analy-ses, improved evidence based, targeted and risk-based approaches should be pursued, taking into account existing resources and in order to explore and develop the prospects for a trade-based approach based on transparent and comparative import-export statistics. 8. The similarities and differences between financing of terrorism and money laundering activities need to be clearly identified. More specifi-cally, attention should focus inter alia on the following issues that may re-quire more specific or diverse legal and regulatory frameworks: (a) Informal fund and value transfer systems (hawala, hundi, fei ‘chien etc.) should be better understood and regulated in pragmatic ways that address the crime risks they represent and preserve the le-gitimate functions they perform.  (b) The role of charitable organisations and political organisations with social and charitable activities as to the financing of activities of a terrorist nature should be analysed in the context of a comprehen-sive evaluation of national, economic and social conditions, aiming at a balanced and consistent approach (c) Given identified vulnerabilities in the commercial sector, trade-based financing of terrorism should be examined and trade transpar-ency should be enhanced to supplement existing financial regulations (d) Analyses should provide either concrete guidelines on what con-stitutes possible suspicious terrorist financial transactions or re-define the extent to which financial controls enable private sector or regula-tory bodies to identify such transactions 9. Guidance for the private sector (in particular financial institutions, lawyers, accountants, auditors etc.) needs to be further developed with the aims to harmonise divergent regional and national practices and to strengthen accountability.Designations and asset-related measures 10.  (a) The processes of designating suspected individuals and organisa-tions [for the purpose of identifying, freezing and seizing assets in-tended to be used for terrorist activities or under the control of terror-ist groups] needs a thorough and comprehensive revision. In some in-stances, the process of removal is unclear, while no judicial or other legal process addresses the status of a suspect on such list – that is, 266 CASE W. RES. J. INT’L L. [Vol. 41:263 there is frequently no criminal or other charge, no court proceeding and, in essence, no means for the determination of guilt or innocence of named suspects. On the other hand, the effects of executive deci-sions made on the basis of not fully known or transparent criteria and evidence are devastating for those affected. (b)  In this context, the procedural rights of targeted individuals and organisations subjected to "listing" and "delisting" proceedings must be guaranteed according to due process and fair trial requirements and opened to effective judicial review.211.  (a)  Judicial and administrative procedures for freezing and seezing assets of individuals and groups are to be properly coordinated. (b) During such procedures the rights of the natural and legal persons concerned to legal consultation and representation and to adequate in-formation on charges and evidentiary material shall be safeguarded without delay. 2 This paragraph may become more important once the awaited judgement of the Euro-pean Court of Justice on this matter is delivered; since the Cleveland meeting. 24, 2008 the High Court of Justice, Queen's Bench Divison, Administrative Court in A,K, M Q & G and H.M. Treasury, [2008] EWHC 869 has ruled and quashed orders enforcing UN Counter-terrorism measures 1373 and 1267, so the point of this paragraph seems increasingly appro-priate.

Combating Terrorist Financing: Draft Resolution

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Combating Terrorist Financing: Draft Resolution

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