Kicking a habit of impunity: a call to prosecute in the ICC persons who finance terrorism through the drug trade.

Author:Palermo, Michael J.
  1. Introduction II. The Intersection of Terrorism and the Drug Trade A. The Taliban in Afghanistan B. The FARC in Colombia III. The State of International Law and "Narco-Terrorism" A. Today's International Regime B. Shortcomings in the International Regime IV. A Venue for Justice A. A Workable Definition B. Seriousness of the Offense C. The Power of Complementarity 1. Positive Complementarity 2. Prevention Effect D. Proposed Amendment to the Rome Statute E. Overcoming Opposition to ICC Expansion 1. Reluctance to Extradite 2. Insufficient Resources V. Which Offenders Should be Prosecuted in the ICC? A. The Afghani Poppy Farmer--Rahman Turabi B. The Colombian Drug Smuggler--Maria Alberto C. The Tax Collector--The Case of Radullan Sali VI. Conclusion I. Introduction

    "I knew the money would be used by the Taliban to buy weapons, but I had to pay the tax," said Rahman Turabi to Afghan and NATO officials investigating recent attacks on NATO forces in Afghanistan. (1) Turabi, an Afghan national, owns thirty hectares of land in Helmand Province, Afghanistan. Turabi uses the land exclusively to farm poppy, a crop used to cultivate opium. The Taliban, Afghanistan's governing authority and a designated terrorist organization, has levied a twelve percent "tax" on all opium harvests in the region. As a result, Turabi pays to Taliban tax collectors approximately $400 per year (twelve percent of profits earned from his opium harvests). Tax revenues are used, in large part, to finance the Taliban's armed attacks against NATO forces currently deployed in Helmand Province. Although Turabi is personally opposed to drug use, he refuses to cultivate other crops because opium sales are the most lucrative. Turabi is not affiliated with the Taliban or any other terrorist organization (in fact, he opposes radical Islamist ideology altogether). During the Taliban's rule, there have been no prosecutions of drug traffickers in Afghanistan.

    "This is a revolution! We will do whatever it takes to liberate our brothers and sisters from the yoke of imperialism perpetuated by the Colombian government," shouted Maria Alberto (2) as she fled unabated--once again--from Colombian police officers. Alberto, a Colombian national, is second-in-command of the Revolutionary Armed Forces of Colombia (FARC), a recognized terrorist organization in Colombia. Alberto, often referred to simply as "La Reina" (or, the "Queen," which is shorthand for the "Queen of Narcotics"), has been affiliated with the FARC for over twenty years. Fueled by a propensity for violence, she rose quickly through the FARC's ranks and has become one of the most feared persons in all of Latin America. She is based in the coastal city of Cartagena, Colombia, and frequently traffics cocaine to the United States via southern Florida. She traffics about one thousand kilograms of cocaine per month. Profits derived from her trafficking activities exceed $30 million per year. Most of this money is used to acquire weapons for FARC guerrillas, who regularly wage armed attacks on Colombian government entities and officials, including judges, prosecutors, and investigators. Last year, such attacks resulted in the deaths of over three hundred Colombian law enforcement officers, as well as five Colombian judges and four Colombian prosecutors. Although Alberto is one of the most wanted persons in the region, prosecutors and law enforcement in Colombia have privately refused, out of fear of reprisal, to pursue and arrest members of the FARC. Judges have also made clear they will summarily dismiss any case involving FARC members.

    "Terrorism and drugs go together like rats and the bubonic plague. They thrive in the same conditions, support each other, and feed off each other." (3) Like the bubonic plague in the Middle Ages, terrorism has spread rampantly across the world and caused tens of thousands of deaths, particularly in the past few decades. (4) As a result, states have devoted significant attention and resources to combat terrorism through military means, most notably in the "War on Terror" led by the United States.

    Recently, however, states have augmented counterterrorism policies with non-military efforts. Indeed, states have focused more intently on disrupting the sources upon which terrorist organizations rely to carry out attacks. In particular, states have targeted sources of terrorist financing and the vehicles used to transmit funds clandestinely to terrorist organizations, such as money laundering practices. (5) In 1999, for example, the United Nations General Assembly adopted the Inter national Convention for the Suppression of the Financing of Terrorism, which required, inter alia, States-Parties to pass domestic legislation criminalizing the act of raising funds for terrorist activities. (6)

    Although anti-money laundering efforts disrupt facilitating agents of terrorist financing, these efforts do little to root out and choke off the underlying sources of revenue, namely, the drug trade. The lack of attention given to the nexus between terrorism and the drug trade is particularly disturbing in light of the amount of revenue provided to terrorists by the drug trade, as well as the inability of states to effectively prosecute those who use funds derived from the drug trade to finance terrorist activities. (7)

    In order to shed light on the alarming nexus between terrorism and the drug trade, Part II of this Paper examines two historical cases: the Taliban in Afghanistan and the Revolutionary Armed Forces of Colombia (FARC). Part III first discusses the existing state of international law with respect to drug trafficking and terrorist financing, and then identifies challenges faced at the domestic level in terms of enforcement of international law. The primary challenged identified is the inability and/or unwillingness of state authorities to prosecute alleged drug traffickers and terrorist financiers. Part IV argues that the jurisdiction of the International Criminal Court should be expanded to allow for the prosecution of persons who provide to terrorist organizations funds raised through the drug trade. Part IV also proposes a draft amendment to the Rome Statute delineating the scope of the International Criminal Court's jurisdiction over such prosecutions. Part V revisits the hypothetical Taliban and FARC cases and argues only the hypothetical FARC member could--and should--be prosecuted in the International Criminal Court.

  2. The Intersection of Terrorism and the Drug Trade

    "Terrorism, consists of two components: ideology and money. Ideology is slow; money is fast. And when it comes to choose sides in the war on terrorism, it's clear that nothing talks louder than money--lots of it.' (8) Money is essential to terrorist organizations. (9) Terrorists need money to recruit and train members, bribe government officials, acquire weapons, develop communication networks, (10) disseminate propaganda, establish camps, and build political support. (11) Thus, terrorists are constantly searching to secure reliable sources of funding. Historically, many terrorists were sponsored financially by states or state entities. (12) However, state-sponsored terrorism has decreased noticeably in the modern age. (13) In order to fill some of the financial vacuum left by the decline of state sponsors, terrorist organizations "turned to other illicit means of financing." (14)

    In particular, terrorists turned to the drug trade as a source of funding. (15) As a result, the traditional line between the drug trade and terrorism has been "blurring, crossing, and mutating as never before." (16) The reason terrorists turned to the drug trade is obvious: the drug trade offers a "financial windfall" to terrorists (17) and allows them to clandestinely distribute funds across financial networks established by the narcotics industry that are thoroughly organized and difficult to detect. (18) In 2004, for example, the United Nations Office on Drugs and Crime estimated that $2 to $3 billion of all revenues from the drug trade ended up in the hands of terrorist organizations. (19) More recent estimates put the figure at around $7 to $8 billion. (20) As a result, the drug trade has become the most common and lucrative source of terrorist financing. (21) Thus, it is no wonder why, in the early 2000s, one-third of the terrorist groups included on the U.S. Department of State's Foreign Terrorist Organizations List were involved in drug trafficking. (22)

    The nexus between terrorism and the drug trade is best exemplified in two recent cases: (A) the Taliban in Afghanistan and (B) the Revolutionary Armed Forces of Colombia. (23) Considered the "blue chips" of the illicit narcotics industry, the Taliban and FARC have received worldwide notoriety for their ability to derive massive revenues from the drug trade in their respective countries. (24) Although the two organizations benefited from fortuitous geography (both groups developed near drug trafficking hotspots--Afghanistan in Asia's "Golden Crescent" and Colombia in South America's Andean region), (25) the two have taken somewhat different approaches to the drug trade in order to extract revenues.

    1. The Taliban in Afghanistan

      Between 1996 and 2002, the Taliban, an Islamic fundamentalist organization, was the primary ruling authority in Afghanistan and, according to U.S. Drug Enforcement Administration reports, controlled as much as ninety-six percent of the opium-growing area in Afghanistan. (26) Because narcotics were seen as against traditional

      Islamic law, however, the Taliban imposed a "ban" on the production of poppy, a key opium ingredient, and levied a "religious tax" on the trade of manufactured drugs. (27) Opium harvests were taxed at around twelve percent, heroin manufacturing labs were taxed at about $70 per kilogram, and transportation permits were issued for $250 per kilogram of heroin. (28)

      Despite its ostensible opposition to narcotics, the...

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