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Published online by Cambridge University Press: 06 March 2019
This note addresses the proscription of terrorist financing under transnational law. It considers both criminal and civil regulatory frameworks. Although the 9/11 attacks certainly galvanized jurisgeneration in this area, important treaties and customary principles preexisted those attacks. Insofar as the law on this topic is quite robust, this note does not provide a typology of every legal prohibition that touches upon terrorist financing. Instead, it offers an overview of the subject matter through case-studies drawn from international treaties and Alien Tort Claims Act litigation in the United States, and it also places the regulatory framework of terrorist financing within both lex lata and lex ferenda regarding the proscription of terrorism generally.
1 See, e.g., Hunt, Adrian, “Terrorism” as an International Crime, available at http://www.counter-terrorism-law.org/internatlaw.pdf.Google Scholar
2 Antonio Cassese, International Criminal Law 120 (2003). Cassese points out as a matter of international humanitarian treaty law that art. 33(1) of the Fourth Geneva Convention, art. 4(2)(d) of the Second Additional Protocol of 1977, and art. 4 of the ICTR Statute prohibit terrorism. Id. at 121. See also Zappala, Salvatore, Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case Before the French Cour de Cassation, 12 Eur. J. Int'l L. 595, 609 (2001) (“although not all acts that may amount to a crime of terrorism under national or treaty law are also covered by customary norms, at least some of them may have turned into customary law […] Other classes of crimes of terrorism under customary law could be […] mass murder of innocent civilians.”)Google Scholar
3 Pejić, Jelena, Terrorist Acts and Groups: A Role for International Law?, 2004 British Yearbook of Int'l Law 71, 73, 95 (2005).Google Scholar
4 See Shrijver, Nico J., Responding to International Terrorism: Moving the Frontiers of International Law for ‘Enduring Freedom?', 48 Neth. Int'l L. Rev. 271, 289 (2001); Drumbl, Mark A., Judging the 11 September Terrorist Attack, 24:2 Human Rights Quarterly 323, 336–338 (2002).Google Scholar
5 See, e.g., Rome Statute of the International Criminal Court, arts. 12–17, July 17, 1998, 2187 U.N.T.S. 93 [hereinafter Rome Statute]. The specific language of the ICTY Statute has grounded terrorism-related prosecutions, as well, under the rubric of war crimes. See e.g. Prosecutor v. Galić, Case No. IT-98-29-T, Judgment, ¶138 (Dec. 5, 2003) (finding that “[…] the crime of terror as a violation of the laws or customs of war […] formed part of the law to which the Accused and his subordinates were subject […]. Terror as a crime within international humanitarian law was made effective in this case by treaty law. The [ICTY] has jurisdiction ratione materiae by way of Article 3 of the Statute.”)Google Scholar
6 See International Convention for the Suppression of the Financing of Terrorism, art. 2(1)(b), Dec. 9, 1999, S. Treaty Doc. No. 106–49 (2000), 39 I.L.M. 270 (2000).Google Scholar
7 Cassese, supra note 2, at 121–22.Google Scholar
8 Financing Convention, supra note 6, at art. 2(1).Google Scholar
9 See id. at arts. 2(4)–2(5).Google Scholar
10 As of June 23, 2008. Information available at www.un.org/sc/ctc/law.shtml.Google Scholar
11 See Pejić, supra note 3, at 95–96. The thirteenth convention, the International Convention for the Suppression of Acts of Nuclear Terrorism, entered into force on July 7, 2007.Google Scholar
12 Cassese, supra note 2, at 123.Google Scholar
13 Pejić, supra note 3, at 96.Google Scholar
14 S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001). “The core provisions of Resolution 1373 were taken directly from the Terrorism Financing Convention […].” Laurence R. Helfer, Nonconsensual International Lawmaking, 2008 U. ILL. L. REV. 71, 81 (2008).Google Scholar
15 Helfer, supra note 14, at 81.Google Scholar
16 There were reportedly 18 “FBI convictions” in the U.S. in 2005 for terrorist financing. See http://trac.syr.edu/tracfbi/findings/05/criminal/district/us/usgprg05.html. In 2004, 25 such convictions were reported. See http://trac.syr.edu/tracfbi/findings/04/criminal/district/us/usgprg04.html.Google Scholar
19 See, e.g., http://moscow.usembassy.gov/crt2005.html. In March 2008, the Dutch Court of Appeals in The Hague acquitted a Dutch businessman of involvement in war crimes and of illegally supplying arms to the regime of former Liberian President Charles Taylor.Google Scholar
21 See Mark A. Drumbl, Atrocity, Punishment, and International Law (2007).CrossRefGoogle Scholar
22 Rice-Oxley, Mark, Why Terror Financing Is So Tough to Track Down, Christian Science Monitor (March 8, 2006) available at http://www.csmonitor.com/2006/0308/p04s01-woeu.html (“What was once a global network financed by elusive donors and administered by Al Qaeda ‘fund- managers’ has now fragmented into a constellation of franchises that sustain themselves primarily through crime.”)Google Scholar
23 See Dougherty, Michael, Money Laundering: Current Status of Our Efforts to Coordinate and Combat Money Laundering and Terrorist Financing, (March 4, 2004), available at http://drugcaucus.senate.gov/moneylaundering04dougherty.html (“In the realm of terrorist financing, it has proven difficult to link the profits from the sale of narcotics, counterfeit merchandise or contraband cigarettes directly to a terrorist organization, or that an unlicensed money broker was sending millions of dollars directly to a terrorist organization. […] Actual terrorist financing cases are relatively rare and very difficult to prove. […] So while it is imperative that we aggressively prosecute specific terrorist cases, it is equally imperative that we take a systemic—rather than case-by-case—approach to financial and economic crime as a way to dismantle the funding mechanisms for criminal and terrorist organizations.”)Google Scholar
24 See Rice-Oxley, supra note 22.Google Scholar
25 Id. Google Scholar
26 Alien Tort Claims Act, 28 U.S.C. § 1350 (2000). ATCA claims have been brought for a variety of jus cogens violations, including genocide and torture.Google Scholar
27 See Burnett v. Al Baraka, 274 F. Supp. 2d 86, 91 (D.D.C. 2003). Plaintiffs sought punitive damages “in excess of one trillion dollars.” Id. Google Scholar
28 See id. at 91–95.Google Scholar
29 Id. at 100. The court supported this premise with various ATCA case holdings, as well as the Restatement (Third) of the Foreign Relations Law of the United States § 404 (1987) that defines internationally recognized offenses as including “piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism. …” Id. It also relied upon United States v. Yunis, 924 F.2d 1086, 1092 (D.C. Cir. 1991) (“Aircraft hijacking may well be one of the few crimes so clearly condemned under the law of nations that states may assert universal jurisdiction to bring offenders to justice, even when the state has no territorial connection to the hijacking and its citizens are not involved.”). See also In re Terrorist Attacks on September 11, 2001, 392 F. Supp. 2d 539 (S.D.N.Y. 2005).Google Scholar
30 See Al Baraka, 274 F. Supp. 2d at 100.Google Scholar
31 Id. See also The Presbyterian Church of Sudan v. Talisman Energy Inc., 244 F.Supp.2d 289, 321 (S.D.N.Y. 2003) (holding claims under the ATCA may “proceed based on theories of conspiracy and aiding and abetting.”); Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 260 (2nd Cir. 2007) (per curiam) aff'd by United States Supreme Court (which lacked quorum owing to financial and personal conflicts of interest among four judges and, hence, unable to decide whether to grant cert.). Am. Isuzu Motors, Inc. v. Ntsebeza, 2008 U.S. LEXIS 3868 (May 12, 2008); Greenhouse, Linda, Justices’ Conflicts Halt Apartheid Appeal, N.Y. Times (May 13, 2008). See also generally Hutchens, Kristen, International Law in American Courts – Khulumani v. Barclay National Bank Ltd.: The Decision Heard ‘Round the Corporate World, 9 German L.J. 639 (2008).Google Scholar
32 See In re Terrorist Attacks on September 11, 2001, 2007 U.S. Dist. LEXIS 74356, at *1 (S.D.N.Y. Oct. 5, 2007) (magistrate opinion).Google Scholar
33 See id. at *1–*2.Google Scholar
34 Saperstein v. Palestinian Authority, 2006 U.S. Dist. LEXIS 92778 at *6 (S.D. Fla. 2006).Google Scholar
35 Id. at *7.Google Scholar
36 Id. at *26.Google Scholar
37 See id. at *25–*26 (citing Tel Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985)).Google Scholar
38 See Saperstein 2006 U.S. Dist. LEXIS 92778 at *30 (citing Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)).Google Scholar
39 Id. at *31 (giving examples of murders in Bosnia, the Middle East or Darfur, Sudan and positing these could lead to a litigation explosion under the ATCA).Google Scholar
40 See Almog v. Arab Bank, 471 F. Supp. 2d 257, 286 (E.D.N.Y. 2007).Google Scholar
41 Id. at 259–60.Google Scholar
42 The District Court described the Bombing Convention's significance: over 120 nations, including the U.S., have ratified it. The District Court also mentioned how the Bombing Convention was incorporated in the Terrorist Bombings Convention Implementation Act of 2002.Google Scholar
43 Article 6 condemns suicide bombings and similar attacks, stating that these acts “are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature.”Google Scholar
44 Arab Bank, 471 F. Supp. 2d at 285.Google Scholar
45 Judge Gershon relied on numerous ATCA cases, and the Financing Convention's condemnation of “acts of complicity or aiding and abetting by non-primary actors,” to hold that aiding and abetting is an available cause of action under the ATCA. The District Court emphasized, contrary to the Saperstein court, that Arab Bank's status as a private entity did not exonerate it from liability.Google Scholar
46 See Arab Bank, 471 F. Supp. 2d at 276.Google Scholar
47 See id. at 281. Arab Bank also distinguishes United States v. Yousef, 327 F.3d 56 (2nd Cir. 2003), an earlier criminal case in which the Second Circuit held that the lack of a definition of terrorism defeated the universal nature of the crime in international law. The distinction was based on a number of grounds, inter alia that Yousef was a case involving criminal jurisdiction under the universality principle and not a case involving the civil jurisdictional grant of the ATCA. Arab Bank, 471 F. Supp. 2d at 280–81. To this end, stricto sensu, Arab Bank establishes that, for the purposes of the ATCA grant of civil jurisdiction over the laws of nations, it is a violation of the laws of nations to commit “organized, systematic suicide bombings and other murderous attacks on innocent civilians intended to intimidate or coerce a civilian population [.…]” Id. However, Arab Bank also found that this conduct was “universally condemned.” Id. Google Scholar
48 Anne-Marie Slaughter and David Bosco, Plaintiffs’ Diplomacy, 79 Foreign Affairs 102 (2000).CrossRefGoogle Scholar
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