+ A
A -
Dr Mohammed A Al-Khulaifi
TERRORIST financing through criminal activities must be addressed. The focus should be on both fronts- supervising charitable contributions and other means of financial support, and preventing illegal economic activities or financial crimes.
What are the International legal standards that are designed to prevent and combat financing terrorism? How does the State of Qatar comply with these standards? In this brief opinion paper, we will attempt to address these two issues and conclude with some recommendations.
The International Framework for Financing Terrorism
In 1937, the League of Nations drafted the Convention for the Prevention and Punishment of Terrorism. The Convention never entered into force because the states failed to reach an agreement on a definition of the concept of"Terrorism". It is established that the Convention on Offences and Certain Other Acts Committed on Board Aircraft, adopted in 1963, is the first international treaty against terrorism. The most recent is the International Convention for the Suppression of Acts of Nuclear Terrorism adopted by the UN in 2005.
In 1999, the UN adopted the International Convention for the Suppression of Financing of Terrorism. This convention is the first treaty to refer to the purpose of terrorism to terrorise the population. Article (2) (1) (b) thereof criminalises any donation or collection of funds to support"Any other act intended to cause death or serious bodily injury... when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organisation to do or to abstain from doing any act".
The significance of the 1999 International Convention for the Suppression of the Financing of Terrorism, is that it, in Article 2.1, defines the crime of terrorist financing as an offense committed by any person if"that person by any means, directly or indirectly, unlawfully and willfully, 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"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 organisation to do or to abstain from doing any act".
The Convention imposes an international obligation upon states to recognise a set of terrorist related offences as crimes in their domestic laws.
In the meantime, the Convention provides for the right to due process, stating in Article 17 that"Any person who is taken into custody or regarding whom any other measures are taken or proceedings are carried out pursuant to this Convention shall be guaranteed fair treatment, including enjoyment of all rights and guarantees in conformity with the law of the State in the territory of which that person is present and applicable provisions of international law, including international human rights law".
In addition to this binding convention, a number of other international legal instruments have been developed. For instance, the UN security Council unanimously adopted Resolution 2178 on September 24, 2014 condemning financing terrorism and calling upon states to prevent the"recruiting, organising, transporting or equipping of individuals who travel for the purpose of the perpetuation, planning of, or participation in terrorist acts, associated with ISIL, Al-Nusra Front [ANL] and other affiliates or splinter groups of Al-Qaeda".
Similarly, the UN Security Council Resolution 1373 called upon states to prevent and suppress financing of terrorist activities, in particular by freezing funds and other financial assts. The Resolution also called for effective border security, sharing of information and law enforcement cooperation. To oversee its implementation, the Security Council founded a Counter Terrorism Committee (CTC).
In 2006, member states of the UN adopted a"Global Counter Terrorism strategy" which is based upon five pillars, namely dissuading disaffected groups from embracing terrorism, denying groups or individuals the means to convey out acts of terrorism, fettering states from supporting terrorist groups, developing capabilities to defeat terrorism and defending human rights.
The UNODC Model Legislative Provisions Against Terrorism of 2009 sub-section 6 covers offences related to Terrorism Financing and uses the same definition of Article 2 of the 1999 Convention and makes it clear that"For an act to constitute an offence... it shall not be necessary that the funds were actually used to convey out an offence...." (Article 15)
The Arab Convention on the suppression of Terrorism of April 1998 provided for measures for the prevention and suppression of terrorist offences including measures"to prevent the use of their territories as a base for planning, organising, executing, attempting or taking part in terrorist crime in any manner whatsoever. This includes the prevention of terrorists, infiltration into, or residence in their territories either as individuals or groups, receiving or giving refuge to them, training, arming, financing, or providing any facilitation to them" (Article 3).
The Convention of the Organisation of the Islamic Conference in Combating International Terrorism of July 1999 stipulates in Article 3 that"the contracting states are committed not to execute, initiate or participate in any form in organising or financing or committing or instigating or supporting terrorist acts whether directly or indirectly" thus imposing an obligation upon the States to adopt measures to prevent and combat terrorist crimes.
Compliance with International Standards to Combat Financing Terrorism: The Qatari Experience
Qatar is a member of the Financial Action Task Force [FATF] which adopted the core international standards and norms to combat terrorist financing in its 40 recommendations, issued in 1990, and revised in 1996, 2001, 2003, and 2012.
Qatar has ratified the"International Convention for the Suppression of the Financing of Terrorism of 1999, along with 187 countries, which entered into force on April 10, 2002, after 22 states have deposited their instruments of ratification, acceptance, approval or accession with the United Nations in accordance with Article 26 of the Convention.
In 2004, Qatar passed a Law on Combating Terrorism. On July 20, 2017, The Amir issued Decree No. 4 of 2017 amending the 2004 Law. Article 1 of the new law punishes"anyone other than those authorised by law who violates the inviolability of the private life of individuals without their consent...".
Also, in 2004, Qatar founded the Authority for Charitable Activities (QACA) to regulate and supervise the activities of charitable institutions. Under the Ministerial Resolution No. 29 of 2004, an"Economic Crimes Combating Section" was established at the Criminal Investigation Unit.
In 2010, Qatar passed the Combating Money Laundering and Terrorist Financing Law No. 4 of 2010. Article 1 of the law defines"Terrorist Financing" to mean"an act by any person who by any means, directly or indirectly, wilfully, provides or collect funds, or attempts thereto, with the intention of using such funds or in the knowledge of their use, wholly or partially in the execution of a terrorist act; by a terrorist or by a terrorist organisation". This law requires disclosure of currency transported across the border. The law provides for the confiscation, freezing or seizing funds tied to money laundering or terror finance. It also calls for international cooperation, including mutual legal assistance (article 58-65), and extradition (article 66-70).
The Qatar Financial Market Authority (FMA) under law No (4) of 2010 on Anti-Money Laundering and Combating the Financing of Terrorism, issued the"Anti-Money Laundering and Combating Terrorist Financing Rules 2010". The rules apply to financial institutions that have a license granted by the FMA. The rules require a licensed party to develop a program against money laundering and terrorist financing [Article 2.1.1]. Such program must include"developing, establishing and maintaining internal policies, procedures, Systems and controls to prevent money laundering and terrorist financing". The rules further require the licensed party to make and keep records in relation to (a) its business relationship with each customer, and (b) each transaction that it conducts with or for a customer." [Article 7.2.1]
In addition to these legislative and institutional initiatives, Qatar has taken the lead in opening the dialogue on the most effective means to combat financing terrorism and related crimes. For instance, on April 3, 2018, Qatar organised the 7th conference of the International Association of 4
Police Academies (INTERPA) which covered the most recent developments and trends in combating terrorism and extremism.
On April 26- 28 2016, MENAFATF 23nd plenary meeting was held in Doha and was chaired by the State of Qatar. On November 17, 2016, the 24th plenary meeting was also held in Doha and was presided by Qatar.
On July 2017, Qatar signed a memorandum of understanding (MoU) with the United States that covered cooperation between the two states in the area of counter terrorism including intelligence sharing, security and finance.
To sum up, Qatar has passed legislation that adequately address the crime of financing terrorism. Qatar has also established the necessary institutions to implement the anti-terrorism and financing terrorism laws.
Conclusion:
There is an international concern over restricting the good work of charitable organisations and other elements of civil society was expressed by the Human Rights Council in HRC 27/31 that stated it was"Deeply concerned that, in some instances, domestic legal and administrative provisions, such as national security and counter-terrorism legislation, and other measures such as provision on funding to civil society, have sought to or have been misused to hinder the work and endanger the safety of civil society in a manner contrary to international law".
In its 2368 Resolution of 2017, the security Council adopts a balancing test"calling upon non-governmental, non-profit, and charitable organisations to prevent and oppose, as appropriate, attempts by terrorist to abuse their states though risk mitigation measures, while recalling the importance of fully respecting the rights of freedom of expression and association of individuals in civil society and freedom of religion."
In 2016 the QACA adopted detailed rules for combating money laundering and financing terrorism including risk assessment, constant contact with charitable organisations, investigations and information gathering, monitoring and supervising charitable activities, requiring records keeping and policies on prevention and training of employees as well as reporting suspicious banking operations. Qatar has now strictly regulating remittance regimes such as hawala's.
To ensure compliance with international standards, including those established by the Financial Action Task Force, it's important to continue dialogue debating the most effective ways to combat financing terrorism and sharing comparative models and best practices. Academic institutions and think tanks can play an important role to achieve this objective.
Nine special recommendations regarding financing terrorism were made by FATF. They are:
1. Ratification and implementation of UN instruments, including the binding convention of 1999 and UN resolutions, particularly Resolution 1373.
2. Criminalising the financing of terrorism and associated money laundering.
3. Freezing and confiscating terrorist assets, by adopting and implementing the appropriate measures including legislative ones.
4. Reporting suspicious transactions related to terrorism.
5. Enhancing international cooperation through mutual legal assistance, exchange of information, and joint investigations.
6. Monitoring remittance through strict licensing and/or registration requirements.
7. Scrutinising suspicious activities of wire transfers.
8. Supervising activities of non-profit organisations to ensure that they are not being exploited for financing of terrorism.
9. Detecting cross-border transportation of currency and negotiable instruments.
To conclude, one should emphasize the importance of incorporating these nine recommendations in any governmental efforts to combat the crime of financing terrorism.
(Dr Mohammed A Al-Khulaifi. Dean of the College of Law Qatar University)
