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Financing Convention’) CHAPTER THIRTEEN INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF THE FINANCING OF TERRORISM 1999 (‘Financing Convention’) 1. Previous conventions dealt with tangible terrorist crimes, such as hijacking, hostage- taking and placing bombs in public places. The purpose of this Convention is to help prevent terrorism by cutting off the funds which terrorists need in order to carry out their crimes. Thus the Convention deals with matters which are at least once removed from terrorist acts, the provisions in earlier conventions about being an accomplice to terrorist acts not having been intended to cover financing. The Convention offences are therefore principal, not subsidiary, offences. This new departure caused some difficulties in the negotiations and drafting.167 2. The Convention was adopted by the United Nations General Assembly on 9 December 1999 and entered into force on 10 April 2002. As of September 2002 it had 44 Parties, including 12 Commonwealth States. The text of the Convention is at page 274 below. The complete list of signatures, ratifications and accessions is at page 286 below. 3. The Convention follows closely the Bombings Convention with respect to provisions common to both conventions, and the reader is referred to the commentary on them in the previous chapter. Only provisions which differ from those in the Bombings Convention, or are new, will be described. (A comparative table of the articles of both Conventions, whether or not they are the same in substance, is at page 304 below.) Definitions 4. The definition of ‘funds’ was drawn deliberately wide so as to leave no loophole for bankers to exploit. The assets specifically mentioned are only examples, the list not being exhaustive. It was important to provide that it does not matter how the assets are acquired, lawfully or unlawfully. Since funds supplied to terrorists may well have been acquired lawfully, one needed to avoid giving any impression that the Convention was concerned only with assets acquired unlawfully (especially given the inclusion of ‘unlawfully’ in the definition of the offence in Article 2(1), see paragraph 11 below). The first, general part of the definition was taken from Article 1(g) of the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 (Vienna Drugs Convention).168 5. The definition of ‘a State or governmental facility’, taken word for word from Article 1(1) of the Bombings Convention, is relevant only to Article 7(2)(b) (see paragraph 29 below). 6. The definition of ‘proceeds’ relates only to Article 8 (see paragraph 32 below). 167 For a more detailed account, see A. Aust, ‘Counter-Terrorism – A New Approach’, Max Planck Yearbook of United Nations Law (2001), pp. 285-306. The author represented the United Kingdom in the negotiations. 168 UNTS Reg. No. 27627; ILM (1989), p. 493; UKTS (1992) 11. 267 The scope of the Convention 7. The scope of the Convention is defined by the offence established by Article 2. (Note. Throughout the Convention the offence is referred to simply as an offence ‘set forth in Article 2’, but, in this chapter it will, for even greater simplicity, be referred to as the ‘financing offence(s)’. Offences under the existing conventions, listed in the Annex to the Convention, or acts coming within the mini-definition of terrorism (see paragraphs 20 to 22 below), are happily referred to in the Convention as ‘offences referred to in Article 2, paragraph 1, subparagraphs (a) and (b)’. In this chapter they are referred to as ‘terrorist offences’.) 8. Paragraph 1 of Article 2 provides that an offence is committed if ‘any person … by any means, directly or indirectly, unlawfully or wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out’ an act defined in subparagraphs (a) or (b). ‘any person’ 9. As in the other conventions, this term means any natural person, whether acting in a private or public or governmental capacity. But, Article 5 necessarily extends, for the first time in these conventions, the scope of the Convention to legal persons (see paragraphs 25- 27 below). ‘by any means, directly or indirectly’ 10. The means by which the funds are got to the terrorist are irrelevant so long as the person providing them - whether directly or as an intermediary - has the necessary intention or knowledge. ‘unlawfully and wilfully’ 11. Since the offence consists of providing funds for terrorism, wilfully and with the necessary intention or knowledge, it may seem strange to include the concept of ‘unlawfully’. It was necessary in the Bombing Convention because using explosive devices in public places can sometimes be lawful, but the situation is very different with financing. Nevertheless, it was agreed to include ‘unlawfully’ since undercover police might wish to give money to suspected terrorists as part of a plan to infiltrate them. There was also felt to be a need to cover the possibility that a donation might have the unintended result of funding terrorism when an organisation has both peaceful aims (health services) and terrorist activities. National liberation movements were cited. 12. The word ‘wilfully’ was used only to emphasise that that the financing has to be done deliberately, not accidentally or negligently, though the elements of intention or knowledge should cover the point anyway. The concepts in the Convention were shockingly new to some of the negotiators, and in places the wording carries a distinct sense of belt and braces. ‘provides or collects funds’ 13. This formulation is designed to protect the innocent receiver of funds destined for terrorists, although, as before, the elements of intention or knowledge probably afford enough protection. 268 ‘with the intention that they should be used or in the knowledge that they are to be used’ 14. It had been proposed that to prove the necessary intention or knowledge it would be sufficient to show that the provision of funds was done in circumstances where there was a reasonable suspicion that they would be used for terrorist purposes, unless the accused could prove otherwise. Although such reverse evidentiary burdens of proof are not uncommon in drugs and terrorism legislation,169 it was not accepted 15. Paragraph 3 makes it clear that it is not necessary to prove that the funds were ‘actually used’ to carry out a financing offence. This is an essential element. Whereas proving that a person supplied the gun that was used in a terrorist attack is reasonably easy, it is very hard to prove that a particular sum of money was actually used to finance a particular terrorist offence, or even category of offence. Paragraph 3 therefore avoids the need to prove that the accused knew or intended that the funds would be used to finance a specific act or type of terrorism. 16. Although there was a proposal to include an express reference to the financing of preparations for terrorist acts, since most of the money is spent on preparations, the design of paragraphs 1 and 3 show that they also cover the financing of preparatory work. Subparagraph 1(a) 17. This is the first half of the provision identifying the acts the financing of which constitutes a financing offence. The acts are those which constitute offences under the treaties listed in the Annex to the Convention. This lists nine universal treaties: the Hague Convention, the Montreal Convention (and Protocol), the Diplomats Convention, the Hostages Convention, the Nuclear Convention, the Rome Convention (and Protocol) and the Bombing Convention. Given their different nature, the Tokyo and Explosives Conventions were not included. The offences include all offences under the conventions, including ancillary offences such as attempts and complicity. 18. Paragraph 2 was inserted because not all States which become Parties to the Convention will necessarily be parties to all nine conventions, and becoming a Party to the Convention will not make them parties to the other conventions. But here might have been political problems for some States in becoming a Party to a convention which listed all nine conventions when they are not bound by all of them. Paragraph 2 therefore gives such a State the option, when consenting to be bound by the Convention in accordance with Article 25(2) and (3)), to make a declaration that, in the application of the Convention to that State, any of the nine conventions to which it is not bound shall be deemed not to be included in the Annex. So far four declarations have been made. Once such a Party becomes bound by any of those conventions, to that extent the declaration ceases to have effect. The declaration can also be made in the unlikely event that a Party to the Convention ceases to be bound to any of the nine conventions. 19. Article 23 provides a (tacit) procedure by which further conventions can be added to the Annex. 169 See, for example, the United Kingdom Terrorism Act 2000, section 57(1) and (2). 269 Subparagraph 1(b) (‘the mini-definition of terrorism’) 20. Since the nine listed conventions do not cover the whole range of terrorist crimes, it was felt necessary to fill that void by including what is, in effect, a mini-definition of terrorism. The purpose is only to enlarge the scope of the new Convention to include the financing of almost all acts of terrorism. It leads to the rather odd result that financing acts covered by the mini-definition will be an offence under the Convention, even though most of the acts themselves will not be offences under the other conventions, though they may, of course, be offences under domestic law.
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