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References
Thachuk KL (May 2002) “Terrorism’s Financial Lifeline: Can It be Severed?”, Strategic Forum, Institute for National Strategic Studies, National Defense University, no.191, p.3.
See, UN CTC, “Framework document for CTC visits to states in order to enhance the monitoring of the implementation of resolution 1373 (2001)”, 9 March 2005.
For details, see, UN, “Letter dated 14 February 2005 from the Chairman of the Security Council Committee established pursuant to resolution 1267 (1999) concerning Al-Qaeda and the Taliban and associated individuals and entities addressed to the President of the Security Council”, UN Doc., S/2005/83, 15 February 2005.
Gilmore WC (2004) Dirty Money: The evolution of international measures to counter money laundering and the financing of terrorism, p.150.
Johnson J (2002) “11th September, 2001: Will It Make a Difference to the Global Anti-Money Laundering Movement?”, Journal of Money Laundering Control, vol.6, no.1, p.9.
Although the weight to given to the financial aspect is considerably different from each other, these three committees have some room to coordinate their activities in the context of terrorist financing. For relevant discussions, see, Section 3.4.4 of Chapter Three of this study. See also, UN SC, “Letter dated 23 August 2004 from the Chairman of the Security Council Committee established pursuant to resolution 1267 (1999) concerning Al-Qaida and the Taliban and associated individuals and entities addressed to the President of the Security Council”, S/2004/679, 25 August 2004, pp.20–21; UN SC, 5059th Meeting, S/PV.5059, 19 October 2004, p.4.
However, considering the FATF’s perception of the NCCT practice as a very effective policy tool, the future of the relationship between the FATF and IMF/World Bank is still uncertain as the following remarks of the FATF president suggests: “While the FATF has no plans at present to conduct a third round of the NCCT reviews, it will retain the possibility of applying countermeasures to protect the international financial system from abuse including in situations where the FATF’s recommendation are not applied or are insufficiently applied” (IMF/ World Bank, “Twelve-Month Pilot Program of AML/CFT Assessments”, 10 March 2004, p.63).
IMF, “The IMF and the Fight against Money Laundering and the Financing of Terrorism”, A Factsheet, September 2004.
This is to develop a direct dialogue with the authorities of the visited states and to identify more precisely the technical assistance needs of the visited states for the purpose of effective implementation of the Security Council Resolution 1373 (2001). See, UN CTC, “General guidelines for conducting CTC visits to member states”, 4 August 2004.
UN Information Service, “Country Visits Signal New Phase of Work for United Nations Counter-Terrorism Body”, SC/8333, 15 March 2005.
For a relevant discussion, see, UN, “Letter dated 14 February 2005 from the Chairman of the Security Council Committee established pursuant to resolution 1267 (1999) concerning Al-Qaeda and the Taliban and associated individuals and entities addressed to the President of the Security Council”, UN Doc., S/2005/83, 15 February 2005, p.9.
In the case of the CTC, it has developed some rules of confidentiality in relation to its on-site visit reports. See, UN CTC, “Framework document for CTC visits to states in order to enhance the monitoring of implementation of resolution 1373 (2001)”, 9 March 2005.
Levi M, Gilmore WC (2002) “Terrorist Finance, Money Laundering and the Rise and Rise of Mutual Evaluation: A New Paradigm for Crime Control?”. In: Pieth M (ed) Financing Terrorism, p.105.
FATF, “Annual Report: 2004–2005”, 10 June 2005, p.11.
FATF, “Annual Report: 2003–2004”, 2 July 2004, p.12.
See <http://www.un.org/sc/ctc>.
IMF/ World Bank, “Intensified Work on Anti-Money Laundering and Combating the Financing of Terrorism (AML/CFT)”, 25 September 2002, para. 45–48. It was agreed in a meeting of key technical assistance providers, organised by the IMF/World Bank in 2002 that the coordination of technical assistance should be organised on a regional basis through the FSRBs.
UN SC, 5059th Meeting, S/PV.5069, 19 October 2004, p.11.
IMF/ World, “Twelve-Month Pilot Program of Anti-Money Laundering and Combating the Financing of Terrorism (AML/CFT) Assessments and Delivery of AML/CFT Technical Assistance”, 31 March 2003, p.16.
The FATF held a joint Typologies meeting with MONEYVAL in December 2004, and will hold another joint meeting with GAFISUD in November 2005. See, FATF, “Annual Report: 2004–2005”, 10 June 2005, p.11.
Rosand E (2004) “Security Council Resolution 1373 and the Counter-Terrorism Committee: the Cornerstone of the United Nations Contribution to the Fight against Terrorism”. In: Fijnaut C, Wouters J, Naert F (eds) Legal Instruments in the Fight against International Terrorism: A Transnational Dialogue, pp.610–611.
Ibid., p.612. For example, on 16 October 2003, the Security Council issued a warning that 48 states were late in submitting their reports to the CTC and that the CTC Chairman would send to the Council the list of states which might be late in submitting their reports by 31 October 2003 (UN SC, “Statement by the President of the Security Council”, S/PRST/2003/17, 16 October 2003).
See, UN SC, “Guidelines of the Committee for the Conduct of Its Work”, S/AC.40/2001/CRP.1, 16 October 2001.
However, given that China is not yet an FATF member state, a prudent approach would be necessary when consensus is sought within the Security Council in relation to the establishment of cooperative relationship with the FATF. See, supra note 20.
However, with a longer perspective, it is desirable that the international community take more active measures, coordinating all possible sanctions, irrespective of whether it is a hard enforcement or a soft enforcement, for the greater good (Tanzi V (1998) “Macroeconomic aspects of offshore centres and the importance of money-laundering in offshore financial flows”. In: UNODC, Attacking the Profits of Crime: Drugs, Money and Laundering, p13).
For example, the IMF has historically provided a large amount of TA to member countries. In terms of person-years, TA activities in the field account for about 18% of the total resources of area and specialised functional departments. See, IMF, “Issues paper for an evaluation of technical assistance provided by the IMF”, 5 November 2003, p.1.
IMF, “Intensified Fund Involvement in Anti-Money Laundering Work and Combating the Financing of Terrorism”, 5 November 2001, p.10. Furthermore, in terms of public relations the IMF could secure the solid dialogue channel with national legislators. See, e.g., “Report of the Working Group of IMF Executive Directors on Enhancing Communication with National Legislators”, 15 January 2004.
IMF/ World Bank “Financial Sector Assessment Program-Review, Lessons, and Issues Going Forward”, 24 February 2003, p.4.
The IMF/World Bank conditioned their collaboration with the FATF on the agreement that the FATF does not undertake a further round of the NCCT exercise. See, supra World Bank, “Twelve-Month Pilot Program of AML/CFT Assessments”, 10 March 2004, p.63). note 11.
For the potential of the IMF in complementing the work of the FATF, see also, LEE, LLC (1999) “The Basle Accords as Soft law: Strengthening International Banking Supervision”, Virginia Journal of International Law, vol.39, pp.36–39.
Levi M (1997) “Taking the Profit Out of Crime: The UK Experience”, European Journal of Crime, Criminal Law and Criminal Justice, vol. 5, p.239; Daams CA (2003) Criminal Asset Forfeiture, p.145, p.158.
FATF, “Review of FATF Anti-Money Laundering System and Mutual Evaluation Procedures 1992–1999”, 16 February 2001, Annex I; Tonry M (1997) “Forfeiture Laws, Practices and Controversies in the US”, European Journal of Crime, Criminal Law and Criminal Justice, vol. 5, p.294; Smellie A (2004) “Prosecutorial Challenges in Freezing and Forfeiting Proceeds of Transnational Crime and the Use of International Asset Sharing to Promote International Cooperation”, Journal of Money Laundering Control, vol.8, no.2, p.108.
Stessens G (2000) Money Laundering: A New International Law Enforcement Model, p.67.
Council of Europe (August 2004) Combating organised crime, p.44.
Stessens G, supra note 40, p.67. Especially, with regard to the difficulties of conviction for terrorist finance offences, Bell explains as follows: “The primary difficulty for the prosecution in terrorist finance cases is to prove beyond a reasonable doubt that the property is terrorist property. The difficulty is exacerbated when the funds are raised in support of terrorism overseas. It is noteworthy that there have been no successful prosecutions for terrorist funding offences in Northern Ireland over the last 30 years” (Bell RE (2003) “The Confiscation, Forfeiture and Disruption of Terrorist Finances”, Journal of Money Laundering Control, vol.7, no.2, p.113).
The EU is also running its own listing mechanism. See, Council of the European Union, “The fight against terrorist financing”, the note from the Secretary General/High Representative and the Commission to European Council, JAI 566, ECOFIN 424, EF 64, RELEX 655, COTER 91, 16089/04, Brussels, 14 December 2004, p.11.
Ibid., p.11.
Wouters J, Naert F (2004) “Police and Judicial Cooperation in the European Union and Counterterrorism: an Overview”, p.110 and Bruggeman W (2004) “Countering the Threat of Terrorism in the EU in a Broader Organised Crime Perspective”. In: Fijnaut C, Wouters J, Naert F (eds) Legal Instruments in the Fight against International Terrorism: A Transnational Dialogue, p.166.
By the European Arrest Warrant system, EU member states automatically recognise each other’s judicial decisions that order the arrest of a suspect (Wouters J, Naert F, supra note 45, p.114). For its contribution to the judicial cooperation, see, Gilmore WC, “The Twin Towers and the Third Pillar: Some Security Agenda Developments”, European University Institute Working Papers, Law no.2003/7, pp.5–9.
The Eurojust which consists of prosecutors and judges coming from all EU member states, aims to promote European judicial cooperation. For further details, see, Coninsx M (2004) “Europjust and EU Judicial Cooperation in the Fight against Terrorism”. In Fijnaut C, Wouters J, Naert F (eds) Legal Instruments in the Fight against International Terrorism: A Transnational Dialogue, pp.181–182.
Williams P, Savona EU (1996) The United Nations and Transnational Organised Crime, p.32.
Case No.IT-94-1-AR72, 2 October 1995. For details, see, footnote 136 of Chapter Three of this study.
Simma B (2002) The Charter of the United Nations: A Commentary, 2nd edn, vol.1, p.726.
Ibid., p.722–726.
See, e.g., Resolution 733 (1992) concerning Somalia.
See, e.g., Resolution 929 (1994) concerning Rwanda.
See, e.g., Resolution 841 (1993) concerning Haiti.
See, e.g., Resolution 1373 (2001) following 9/11.
See, e.g., Resolution 1540 (2004) concerning the weapons of mass destruction.
De Wet E (2004) The Chapter VII Powers of the United Nations Security Council, pp.172–174.
De Wet E, supra note 58, pp.176–177.
Ibid., p.177.
Council of the European Union, supra note 43, p.11.
UN, “Letter dated 1 December 2003 from the Chairman of the Security Council Committee established pursuant to resolution 1267 (1999) addressed to the President of the Security Council containing the SECOND REPORT of the MONITORING GROUP pursuant to resolution 1455 (2003)”, S/2003/1070, 2 December 2003, p.5.
Rider BAK, Nakajima C (eds) (2003) “The Funding of Terror: The Legal Implications of the Financial War on Terror”, Journal of Money Laundering Control, vol.6, no.3, p.211.
See, e.g., the presentation by Ambassador Greenstock, the then Chairman of the CTC at the Symposium: “Combating International Terrorism: The Contribution of the United Nations”, held in Vienna on 3–4 June 2002; UN, “Provisional Summary Record of the First Part of the 57th Meeting”, S/AC.40/SR.57, 18 March 2003, pp.9–10.
For civil confiscation, even within the U.S there are many criticisms, and some regional courts such as the ECtHR also seems to be still very cautious in introducing these intrusive concepts. See, e.g., Der Walt V (2000) “Civil Forfeiture of Instrumentalities and Proceeds of Crime and the Constitutional Property Clause”, South African Journal on Human Rights, vol. 16, pp. 24–31. Similarly, in relation to the controversial nature of the reversed burden of proof, see, e.g., Tadros V, Tierney S (2004) “The Presumption of Innocence and the Human Rights Act”, Modern Law Review, vol.67, pp.416–422.
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(2006). The Financing of Terrorism: a Trojan Horse. In: Suppressing Terrorist Financing and Money Laundering. Springer, Berlin, Heidelberg. https://doi.org/10.1007/3-540-32519-0_6
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