Legislating To Meet The International Norms And Standards

Pages:34-42

Page 34

Countries that have already legislated to implement the obligations and standards related to combating the financing of terrorism have done so in many different ways. Some countries have enacted comprehensive legislation that deals with many aspects of combating terrorism and its financing, sometimes going well beyond the international requirements. Others have designed legislation to deal with one or a few of these requirements at a time-for example, adopting legislation dealing specifically with the requirements of the Convention, or those of the Convention and the Resolution taken together.

Each approach has its own advantages and it is up to each country to decide on how to proceed, depending on its own needs. In some cases, where the existing legal framework, and in particular the anti-money laundering laws, are weak or outdated, a comprehensive law covering in an unified manner both AML and CFT may be a good solution. It provides for a more coherent legislative response and reduces the risk of gaps or loopholes. In other cases, it may be preferable to make some amendments to the existing laws. This approach has the advantage of being quicker. But the resulting legal construction may lack clarity and coherence.

What follows is a very brief and general presentation of this topic. While a discussion of the criminal legislative policy issues related to the prevention, detection, and repression of terrorism is beyond the scope of this handbook, it is hoped that the very general presentation that follows will help clarify the issues facing authorities as they consider the possible scope of legislation, and will also help explain the wide variations in the scope of recent laws that contain provisions on the financing of terrorism.

General

The legislative policy response to the international obligations related to the prevention and repression of terrorism financing may be made part of a wider legislative initiative to combat terrorism generally, or it may be considered on its own. Some countries have decided to respond to the events of September 2001 by adopting a wide-ranging set of measures to facilitate the detection, prevention, and repression of terrorism. These comprehensive Page 35 laws emphasize preventive measures. Before the enactment of such comprehensive legislation, these countries generally dealt with terrorism by adopting provisions repressing specific acts, notably those criminalized under the international conventions on the suppression of terrorist acts, and by relying on general criminal law provisions, such as those relating to murder, sabotage, or unlawful use of explosives. Countries such as Canada, the United Kingdom, and the United States have adopted comprehensive anti-terrorism legislation. As the Canadian Minister of Justice put it before the Canadian Senate Committee considering the proposed legislation, "Our current laws allow us to investigate terrorism, prosecute and impose serious penalties on those who have engaged in various specific activities generally associated with terrorism.... However, these and other laws are not sufficient to prevent terrorist acts from occurring in the first place.... Our current laws do not adequately address the reality of how terrorist cells operate and how support is provided. Our laws must fully implement our intention to prevent terrorist activity and, currently, they do not."88 The Canadian Terrorist Act 200189 is intended to provide law enforcement authorities with the tools to identify and stop terrorist plots before they can be carried out.90 In addition to measures designed to respond to the country's obligations under the Resolution and the Convention, the Act "addresses the core needs for comprehensive criminal measures against terrorism, including provisions on the fundamental issue of definition."91

The USA PATRIOT Act92 is also a wide-ranging law providing expanded powers to police authorities, passed in the immediate aftermath of the terrorist attacks of September 11, 2001 in the United States. The Act gives federal officials greater authority to track and intercept communications and vests the Secretary of the Treasury with regulatory powers to combat corruption of U.S. financial institutions for foreign money laundering purposes. It seeks to close U.S. borders to foreign terrorists and to detain and remove those within its borders. It creates new crimes and new Page 36 penalties, for use against domestic and international terrorists.93 The law implementing the Convention was adopted later.94

Other countries, which had already criminalized various forms of terrorism, recently modified their legislation as necessary to implement the Convention, and included in the same law additional powers to the police in the detection of terrorist offenses. This is the case, for example, of France.95

Still other countries have taken the requirements of the Convention and some of the requirements of the Resolution together and have legislated to incorporate their provisions into local law. An example is the Barbados Anti- Terrorism Act, 2002-6. The Act sets out a new terrorism offense, with a definition structured in a manner similar to that of the Convention and provides the legislative tools to repress such acts and their financing, as well as the freezing and forfeiture of terrorist funds.

Finally, some countries have adopted specific legislative measures to incorporate the Convention into their legislation, while limiting the scope of new legislation to what is needed to make the provisions of the Convention operational. For example, such legislation may specify to what extent legal entities are to be made criminally responsible for acts of individuals, a question left to the decision of...

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