Laura Halonen, Catch Them if You Can: Compatibility of United Kingdom and United States Legislation Against Financing Terrorism With Public International Law Rules on Jurisdiction

• Publication year: 2010

CATCH THEM IF YOU CAN: COMPATIBILITY OF UNITED KINGDOM AND UNITED STATES LEGISLATION AGAINST FINANCING TERRORISM WITH PUBLIC INTERNATIONAL LAW RULES ON JURISDICTION

Laura Halonen*

INTRODUCTION

The world changed on September 11, 2001. Led by a shocked but determined United States, the international community came together in order to take collective and individual action to eradicate terrorism. An important part of this campaign has been the fight against financing terrorism, seen as a key element of terrorism itself: “Today’s terrorist advances with an Armalite in one hand and a cashbox in the other . . . . At a basic level [money] is necessary to finance operations, but it is more than that. It can become part of the

momentum of terrorism itself.”1

The movement to supply the legislative tools necessary in the battle against terrorist financing gained particular momentum in the United Nations. The International Convention for the Suppression of the Financing of Terrorism, adopted by the United Nations General Assembly on December 9, 1999,

(“Financing Convention”)2 saw a surge of ratifications and accessions,3 and at

the behest of the United States4 the Security Council passed several

* M.A. (Jurisp.) (Oxon.), B.C.L.; Senior Associate, Lalive, Geneva, Switzerland. I would like to thank Dr. Katja Ziegler for her supervision and advice in completing my B.C.L. dissertation, which formed the basis for this article.

1 611 PARL. DEB., H.L. (5th ser.) (2000) 1435 (U.K.).

1. International Convention for the Suppression of the Financing of Terrorism, opened for signature Jan. 10, 2000, T.I.A.S. 13075, 2178 U.N.T.S. 38349 [hereinafter Financing Convention].

2. Status of the International Convention for the Suppression of the Financing of Terrorism, UNITED NATIONS TREATY COLLECTION, http://treaties.un.org/doc/Publication/MTDSG/Volume%20II/Chapter% 20XVIII/XVIII-11.en.pdf (last visited Oct. 21, 2012) [hereinafter Financing Convention Status].

3. U.S., Rep., transmitted by letter dated Dec. 19, 2001 from the Chairman of the Security Council Comm. established pursuant to resolution 1373 (2001) concerning counter-terrorism addressed to the President of the Security Council, Annex, at 4, U.N. Doc. S/2001/1220 (Dec. 21, 2001).

   resolutions, including Security Council Resolution 1373 (“Resolution 1373”) imposing on states obligations to curtail the financing of terrorism.5

   
   

   In this Article, I examine these and other recent developments to determine the present state of international law rules on jurisdiction—in particular, whether the financing of terrorism has attained the status of a crime of universal jurisdiction under customary law. This is considered in the first Part below.

   
   

   As the United States has been at the forefront of the international developments in this area,6 it is interesting to compare its domestic legislation with the international rules the United States has been instrumental in constructing. A useful comparison is provided by the United Kingdom, another common law jurisdiction,7 which traditionally shared with the United States a belief in the principle of limited national prescriptive jurisdiction,8 but which enacted its legislative framework against financing terrorism prior to the events of September 11, 2001.9 Thus, after examining the present state of international law, the following two Parts of this Article will consider the laws against the financing of terrorism in the United Kingdom and the United States respectively, in order to determine whether they are compatible with international law rules on jurisdiction.

   
   

   I conclude that, as there is presently no universal jurisdiction for the crime of financing terrorism under customary international law, the laws of the United States and the United Kingdom are not entirely compatible with international law.

   
   

4. Press Release, Security Council, Security Council Unanimously Adopts Wide-Ranging Anti-Terrorism Resolution; Calls for Suppressing Financing, Improving International Cooperation, U.N. Press Release SC/7158 (Sept. 28, 2001).

5. See generally U.N. S.C. Rep. of the Security Council, June 15, 2001–July 31, 2002, 263, U.N. Doc.

   A/57/2; GAOR 57th Sess., Supp. No. 2 (2002) (outlining the steps the United States has taken to combat the financing of terrorism).

6. CIA, THE WORLD FACTBOOK: UNITED KINGDOM 684 (2011).

7. Compare MacLeod v. Attorney Gen. for NSW, [1891] A.C. 455, 458–59 (P.C.) (U.K.) (appeal taken from NSW), and Air-India v. Wiggins, [1980] 2 All E.R. 593 (H.L.) at 596 (Eng.), with RESTATEMENT

   (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 403 (1988) [hereinafter THIRD RESTATEMENT].

8. Terrorism Act, 2000, c. 11 (U.K.).

   1. JURISDICTION FOR FINANCING TERRORISM UNDER PUBLIC INTERNATIONAL LAW

      
      

      Laws preventing terrorism are at the cutting edge of developments in international law. This Part considers the present state of these developments in relation to the specific issue of jurisdiction for financing terrorism. To begin with, the text of the Financing Convention is considered to determine the extent to which it establishes a jurisdictional basis for state parties such as the United Kingdom and the United States to criminalize the financing of

      terrorism.10 The most detailed analysis is devoted to the question of

      determining whether there is universal jurisdiction for financing terrorism in customary law, either arising from the Financing Convention or other developments in state practice.11 The Part concludes with a brief consideration of jurisdiction under the protective and passive personality principles.12

      
      

      1. Jurisdiction Established by the Financing Convention

         
         

         Prescriptive jurisdiction, like any other rule of international law, can be based on a treaty between states. However, treaties only affect the rights and obligations of the parties to them.13

         
         

         The Financing Convention provides an international law basis for state parties to criminalize the financing of terrorism.14 Nevertheless, one must consider carefully the text of the Financing Convention to establish the perimeters of such jurisdiction. For present purposes, the most important provisions are Article 2 and Article 4, which deal with the scope of the

         Financing Convention; Article 7, which lays out the rules on jurisdiction; and Article 10 concerned with enforcement.15

         
         

         Article 2.1 of the Financing Convention sets out the offence of financing terrorism in the following terms:

         
         

         Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly,

         
         

9. See infra Part I.A.

10. See infra Part I.B.

11. See infra Part I.C.

12. Vienna Convention on the Law of Treaties art. 34, opened for signature May 23, 1969, 1155 U.N.T.S. 331, arts. 34–37. But see id. art. 38 (“Nothing in articles 34 to 37 precludes a rule set forth in a treaty from

    becoming binding upon a third State as a customary rule of international law . . . .”).

13. Financing Convention, supra note 2, art. 2, at 230, art. 7, at 232–33.

    15 Id. arts. 2, 4, 7, 10, at 230–34.

    unlawfully and 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:

    
    

    1. An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or

       
       

    2. 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 act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to

abstain from doing any act.16

The annex mentioned in subparagraph (a) lists the nine global terrorism conventions (collectively the “Global Terrorism Conventions”).17

Relevant limitations in Article 2.1 for assessing the compatibility of domestic legislation with the Financing Convention include:

1. the requirement that the financing be meant for acts “intended to cause death or serious bodily injury”;

   
   

2. the exclusion of those engaged in armed conflict from the ambit of the definition of victims of terrorism;

   
   

3. the restriction of prohibited financing to the provision and collection of funds; and

   
   

4. the absence of a specific prohibition against financing organizations that carry out terrorist activities.18

1. Id. art. 2, at 230.

2. Id. annex, at 241. These conventions are International Convention for the Suppression of Terrorist Bombings, Dec. 15, 1997, 2149 U.N.T.S. 37517; Protocol to the Convention of 10 March 1988 for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, March 10, 1988, 1678 U.N.T.S. 29004; Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, March 10, 1988, 1678 U.N.T.S. 29004; Protocol for the Suppression of Unlawful Acts

   of Violence at Airports Serving International Civil Aviation, Feb. 24, 1988, 1589 U.N.T.S. 14118; Convention on the Physical Protection of Nuclear Material, March 3, 1980, 1456 U.N.T.S. 24631; International Convention Against the Taking of Hostages, Dec. 17, 1979, T.I.A.S. 11,081, 1316 U.N.T.S. 21931; Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, Dec. 14, 1973, 28 U.S.T. 1,975, 1035 U.N.T.S. 15420; Convention for the Suppression of

   Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 U.S.T. 564, 974 U.N.T.S. 14118; Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 U.S.T. 1,641, 860 U.N.T.S. 12325.

3. Financing Convention, supra note 2, art. 2, at 230.

   Article 4(a) obliges state parties to the Financing Convention to “establish as criminal offenses under [their] domestic law the offenses set forth in article 2.” 19

   
   

   Article 7 of the Financing Convention deals expressly with jurisdiction.20 Article 7.1 sets out mandatory territorial (extending also to vessels and aircraft registered in the state) and nationality jurisdiction.21 Article 7.2 provides for...