|International Convention to Suppress the Financing of terrorism |
International Convention to Suppress the Financing of terrorism
Source: French Ministry of Foreign Affairs, Paris, December 8, 1999.
Why a new convention on terrorism ?
Terrorism is a permanent threat to both States and people. The international community has progressively joined forces to fight this scourge. Effective measures to strengthen security have been taken in many spheres, for example, that of the safety of civil aviation. International cooperation has developed, particularly in the multilateral fora, thus creating a framework for more extensive judicial and police cooperation. Finally, several international conventions have been drawn up to bolster the fight against specific terrorist activities, such as hostage-taking or aircraft hijacking, and more recently terrorist attacks involving explosives.
The need has nevertheless been felt for a broader approach to enable us to fight against all terrorist activities by directly attacking their financing. Carrying out an act of terrorism requires considerable resources in order to maintain clandestine networks, train units, mount complex operations, procure weapons and purchase collusion. There is someone behind every terrorist act; behind every terrorist group there are financiers.
The fight against terrorist financing, whether from "legal" (commercial or charitable activities for example) or "illegal" sources (racketeering, trafficking, robbery, procuring, etc.) is a priority objective for the services actively engaged in the fight against terrorism. It requires sophisticated means and techniques to thwart the operation of what are intrinsically complex and impenetrable financial networks, often related to those used by the Mafia. It also requires a specific national and international legal framework so that we can obtain vitally-needed cooperation from banks and ensure collaboration between international law enforcement agencies.
However, the existing conventions are insufficient. Firstly, because they do not cover all acts committed by terrorists, such as those not involving explosives (for example, murders committed with automatic weapons - the case in Luxor in Egypt in 1997). Secondly, because no specific mechanism for judicial cooperation exists to combat terrorist financing.
This is the reason behind the drafting of an ambitious international convention which France proposed in summer 1998, a period marked by the attacks on the United States embassies in Dar Es Salaam and Nairobi and the bomb in Omagh in Northern Ireland. This draft, which reflected the discussions which had been taking place in the United Nations, G8 and European Union, was very favourably received by the international community. This interest and the scope of the measures provided for in the draft convention very probably explain the speed with which the negotiations were concluded - in the space of a year - and the adoption of the draft by consensus, i.e. without a vote, by the United Nations General Assembly.
This convention gives the international community the means to pursue the effective and total prevention and suppression of terrorism and sends a strong signal to terrorists and those who protect, finance and harbour them.
Principal Features of the International Convention for the Suppression of the Financing of terrorism
The Convention differs from the eleven existing conventions dealing with terrorism in its purpose and scope. Indeed, while supplementing these conventions, it targets the "upstream" stages of terrorist acts. It also covers a far wider field, including not only all the acts defined as offences by the earlier conventions, but also all acts of a terrorist nature "designed to cause death or serious bodily harm". It thus introduces a much broader approach to the issue of terrorism, reflecting a new trend towards tackling international issues comprehensively.
The International Convention for the Suppression of the Financing of Terrorism defines a new international offence and asks States to make it a criminal one. It includes coherent and complete international cooperation mechanisms covering both the suppression and prevention of such offences.
1) An ambitious convention
What is meant by financing?
Article 1 offers a broad definition of "funds". These include assets of every kind and legal documents and instruments in any form which prove title to or interest in such assets.
- The definition of the offence of financing is itself sufficiently broad to cover all eventualities. It covers the act of providing or collecting funds with the intention of them being used or in the knowledge that they are to be used to commit an act of terrorism (art. 2). The funds in question may have been acquired legally (from public, private or voluntary organizations) or illegally (racketeering, robberies, etc.), but their destination makes them unlawful in all cases.
At whom is it directed?
The Convention is directed first of all against the "principals". It also targets accomplices and other contributors who are aware that the funds are destined for terrorist use. For an offence to have been committed, there has to be the intention that the funds be used or knowledge that they are to be used for an act of terrorism. Persons acting in good faith, taking part in public collections for example, are therefore excluded. The Convention also stipulates that legal persons (voluntary organizations, businesses, etc.) can be held liable.
What is the significance of the definition of the offence? The definition of the offence is designed to meet two objectives: To cover all the acts targeted by the existing Conventions, which are listed in an annex (hostage taking, hijacking of aircraft or boats, etc.). It also provides a mechanism for updating the Convention to take account of any relevant new treaties. To target more generally the financing of "any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing any act" (art. 2). It should be noted that this definition brings the international community closer to an agreement on a definition of terrorism.
2) Innovative measures for both suppression and prevention
Effective and deterrent sanctions
As is standard in such documents, it is stipulated that the States Parties must take measures to "establish as criminal offences" and appropriately punish these offences (art. 4). On the other hand, the principle of making legal entities (voluntary organizations, businesses, etc.) liable is a significant innovation. Their liability renders them subject to sanctions, including monetary ones (art. 5).
The Convention also innovates in the sphere of assets used to finance terrorism. It obliges States to take appropriate measures for the identification, detection and freezing or seizure of any funds used for terrorist purposes. It also asks them to take the necessary measures for their forfeiture, if their domestic legal principles so allow (art. 8).
Important measures in the area of mutual legal assistance: lifting of bank and fiscal secrecy
The Convention emphasizes judicial cooperation. It contains standard provisions on the obligation to investigate and mutual legal assistance. These have been strengthened by, inter alia, two innovative provisions on bank and fiscal secrecy. Bank secrecy can no longer be invoked in order to reject a request for mutual legal assistance (art. 12). The fiscal nature of an offence can no longer be used as grounds for refusing a request for mutual legal assistance or extradition (art. 13).
Preventive measures inspired by the generally accepted principles adopted in the fight against money laundering The networks involved in financing terrorism are complex and hard to penetrate. One of the main problems here is establishing effective measures to do this, particularly when it comes to gathering evidence. The Convention addresses this problem by setting out an especially comprehensive range of preventive measures, based on the 40 recommendations of the Financial Action Task Force (FATF). These measures rely mainly on the cooperation of financial institutions, encouraging them to improve their monitoring and reporting of suspect financial operations. States Parties pledge to take a number of steps to this end, which include prohibiting the opening of accounts whose holders or beneficiaries are unidentified or unidentifiable (known as "numbered accounts"), improving verification of the identity of legal entities, reporting all complex, unusual, large transactions and unusual patterns of transactions and maintaining for at least five years all records on transactions. States Parties are urged to consider taking further measures, for instance for the supervision of all money transmission agencies and for the detection or monitoring of cross-border transfers of cash. Cooperation between States Parties in the prevention of offences is to be reinforced by exchanges of information and various coordinating administrative and other measures to improve cooperation in conducting inquiries. It is laid down that States Parties may exchange information through the International Criminal Police Organization (Interpol).. Furthermore, the Convention asks the States Parties to take measures to prohibit in their territory illegal activities of persons and organizations that knowingly encourage, instigate, organize or engage in the commission of terrorist offences. Strengthening mechanisms for compensating victims of terrorism The Convention urges States Parties to consider establishing mechanisms whereby the funds derived from forfeitures of funds are utilized to compensate the victims of terrorist offences or their families (art. 8). Adoption of such a mechanism would increase the number of countries which, like France, have set up a compensation fund for the victims of terrorism.
3) The Convention incorporates the main achievements of existing anti-terrorist conventions
Broadly defined rules of jurisdiction
- The Convention applies only to acts of international terrorism (art. 3) i.e. offences with an international element. In such cases, the Convention gives States Parties very wide jurisdiction over such offences, including those not committed on their territory. These may be offences against one of their nationals or a State or government facility abroad or committed in an attempt to exert pressure on that State. These provisions therefore give courts virtually "universal" jurisdiction (art. 7). The "extradite or try" principle
One of the main aspects of the penal measures relates to the "extradite or try" principle of international law. The aim of this principle is to prevent offenders from enjoying impunity. States must pursue offenders and their accomplices once jurisdiction has been established, or otherwise extradite them and thus enable another State to try them. Moreover, the Convention contains provisions designed to speed up extradition procedures by allowing for the Convention to form the legal basis for extradition (arts. 10 and 11).
"Depoliticization" of offences
The Convention is one of a generation of legal instruments based on an unequivocal condemnation of terrorism, one which rejects any possibility of political justification. The corollary of this approach, mentioned in the Preamble to the Convention, is a "depoliticization" of offences: States must guarantee the impossibility, under any circumstances, of such offences being justified by considerations of a political, philosophical, ideological, racial, ethnic or other similar nature (art. 6). No offence of this kind can be considered political and no request for mutual legal assistance or extradition can therefore be refused on that ground (art. 14).
Protection of fundamental human rights and freedoms
The Convention is based on the principle of strict observance of human rights. An accused person may communicate with a representative of the State of which he/she is a national, have the right to a proper defence and, if necessary, communicate with the ICRC (art. 9). The Convention also stipulates that an extradition request can be refused if the requested State Party has substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing a person on account of that person's race, nationality, ethnic origin or political opinion (art. 15). Finally, persons taken into custody or subject to other measures shall be guaranteed fair treatment, including enjoyment of all rights and guarantees in conformity with national law and applicable provisions of international law, including international human rights law (art. 17).
The ICJ's jurisdiction to settle disputes in the event of the failure of arbitration
The mechanism for settling disputes between States Parties follows a step-by-step procedure. Initially, it provides for arbitration. Should that fail, the dispute can be referred to the International Court of Justice. The possible intervention of the ICJ has become the rule in anti-terrorism Conventions.
Application of the norms of international law
The Convention is based on the rules of international law and peaceful coexistence between States. It therefore reaffirms the principles of equality, territorial integrity and non-intervention in the domestic affairs of other States (art. 20) and reiterates the other rights, obligations and responsibilities of States and individuals under international law, in particular the purposes of the Charter of the United Nations, international humanitarian law and other relevant conventions (art. 21).
France's contribution to the international fight against terrorism Appendix : International Convention for the Suppression of the Financing of Terrorism Article by M. Hubert Védrine, minister of Foreign Affairs, published in the "International Herald Tribune" Statement made by the Ministry of Foreign Affairs Spokesperson (Paris, January 10, 2000) Statement made by the Ministry of Foreign Affairs Spokesperson (Paris, December 10, 2000).