Counter-Terrorism — A New Approach The International Convention for the Suppression of the Financing of Terrorism

Max Planck Yearbook of United Nations Law

Volumn 5, Issue , 2001, Pages 285-306

  Aust, Anthony ^a  

^a United Kingdom Government   (United Kingdom)

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EID: 85181038661     PISSN: 13894633     EISSN: None     Source Type: Book Series    
DOI: None     Document Type: Article

References (46)

1. 1 Author of Modern Treaty Law and Practice, 2000 and "Lockerbie: the other case", ICLQ 49 (2000), 278 et seq. about how the two accused of the Lockerbie crime were brought to trial before a Scottish court sitting in the Netherlands. The views expressed are personal, not those of the United Kingdom Government.
2. 2 ILM 39 (2000), 270 et seq.; A/RES/54/109 of 9 December 1999.
3. 3 Hague Convention for the Suppression of Unlawful Seizure of Aircraft 1970 (UNTS Vol. 860 No.12325; UKTS (1972) 39); Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1971 (UNTS Vol. 974 No. 14118; UKTS (1974) 10); Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents 1973 (UNTS Vol. 1035 No. 15410; UKTS (1980) 3); International Convention against the Taking of Hostages 1979 (UNTS Vol. 1316 No. 21931; ILM 18 (1979), 1460 et seq.; UKTS (1983) 81); Convention on the Physical Protection of Nuclear Material 1980 (ILM 18 (1979), 1419 et seq.; UKTS (1995) 61); Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Montreal Convention, 1988 (ILM 27 (1988), 627 et seq.); Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 and Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf 1988 (UNTS Vol. 1678 No. 29004); International Convention for the Suppression of Terrorist Bombings 1997 (ILM 36 (1997), 251 et seq.). On the present status of the conventions, see Doc. A/55/179,14-23. Negotiations for an International Convention for the Suppression of Acts of Nuclear Terrorism (originally proposed by Russia to fill lacunae in the 1980 Convention), were concluded in 1998, except for, in particular, the question whether to exclude from the scope of the convention the activities of armed forces. At the time of writing (December 2000) the negotiations on that question have still not been concluded (see Doc. A/55/37). For the 55th Sess. of the General Assembly in 2000 India tabled a draft Comprehensive Convention on Terrorism: see Docs A/C.6/55/l(draft) and A/C.6/55/L.2 (Working Group Report).
4. 4 The Group of Seven, plus the Russian Federation.
5. 5 Doc. A/C.6/53/L.4.
6. 6 The Committee was established by A/RES/51/210 of 17 December 1996 as an inter-sessional committee, originally to consider the draft convention on terrorist bombings and, subsequently the drafts on nuclear terrorism and terrorist financing. For its report on the latter, see Doc. A/54/37.
7. 7 For its report to the Sixth Committee, see Doc. A/C.6/54/L.2.
8. 8 Although Switzerland is not a member of the United Nations, the mandates of the ad hoc Committee and the Working Group allowed it to participate as a full member at their meetings, not merely as an observer, though for some years the distinction has in practice not been particularly important in such subsidiary bodies.
9. 9 A/C.6./54/SR. 31-2,34,35 and 37.
10. 10 Benin, Lebanon and Syria.
11. 11 Doc. A/54/615.
12. 12 Doc. A/54/PV. 76; A/RES/54/109 of 9 December 1999. The Convention was opened for signature from 10 January 2000 to 31 December 2001. It can be acceded to at any time. By 1 December 2000 it had been signed by 35 states, of whom two had ratified.
13. 13 ILM 28 (1989), 493 et seq.; UKTS (1992) 11.
14. 14 Since it is relevant only to article 7 para. 2 (b) it would have been more practical to have located it there. See Modern Treaty Law, see note 1,343.
15. 15 And should have been placed there.
16. 16 See the Report of the ad hoc Committee (Doc. A/54/37), Annex IV. B, para. 84.
17. See the Hague Academy lectures by G. Guillaume, "Terrorisme et Droit International*, RdC 215 (1989), 287 et seq.
18. 18 The definition is particularly relevant to the much expanded provisions of Section 3 enabling the Government to add to the list of organisations which are proscribed because they are concerned in terrorism. Foreign terrorist organisations operating from the United Kingdom can now be proscribed. In addition, there are some specific terrorist offences in the Act, for example in Part III in relation to the property of terrorists, which are of particular relevance to the Convention. The further legislation to enable the United Kingdom to ratify the Convention is in Section 63 of the Act.
19. y 1990,29-45.
20. 20 See note 28 for example.
21. 21 A/RES/3034(XXVII) of 18 December 1972; A/RES/31/102 of 15 December 1976; A/RES/32/147 of 16 December 1977; A/RES/34/145 of 17 December 1979; A/RES/36/109 of 10 December 1981; A/RES/38/130 of 19 December 1983; A/RES/40/61 of 9 December 1985; A/RES/42/159 of 7 December 1987; A/RES/44/29 of 4 December 1989; A/RES/46/51 of 9 December 1991; A/RES/49/60 of 9 December 1994; A/RES/51/210 of 17 December 1996; A/RES/53/108 of 8 December 1998; A/RES/54/110 of 9 December 1999.
22. 22 A/RES/49/60 of 9 December 1994.
23. 23 UNTS Vol. 1137 No. 17828; ILM 15 (1976) 255 et seq.; UKTS (1978) 93.
24. 24 The Indian proposal for a comprehensive convention on terrorism is much more ambitious (see the end of note 3).
25. 25 Report of the ad hoc Committee (Doc. A/54/37, para. 38).
26. 26 Report of the Working Group (Doc. A/C. 6/54/L.2, Annex III, paras 2 and 81).
27. 27 Doc. A/C6./54/SR.31 -2, 34, 35 and 37.
28. 28 UAE statement. Others who made a similar point were Cuba, Iraq, Lebanon, Libya, Oman, Qatar, Pakistan and Syria. At the 55th Sess. of the General Assembly in 2000, the terrorism resolution (A/RES/55/158 of 12 December 2000) was, for the first time for some years, put to the vote. There were no negative votes, but Lebanon and Syria abstained.
29. This identification of the Annex should have been made earlier in the sub-paragraph. The mistake was not corrected by the depositary. There are few multilateral treaties today which do not contain (mainly drafting) errors, large and small: see Modern Treaty Law, see note 1,270-273.
30. As used in the other articles, the references to "offences set forth in article 2" relate to the new offences of financing terrorism; and references to "offences referred to in article 2, paragraph 1, subparagraphs (a) or (b)" relate to offences under the existing conventions or acts coming within the mini-definition of terrorism. What these references mean does not exactly leap off the page, but they were preferred to a suggestion for more intelligible and concise formulations, such as "financing offences* and "terrorist offences'*.
31. 31 See Docs A/AC.252/1999/INF/2(ICRC) and A/C.6/54/WG.1/INF/1 (UNHCR).
32. 32 Prevention of Terrorism (Temporary Provisions) Act 1989, Section 9. See now the Terrorism Act 2000, Section 57 (1) and (2): (1) A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism. (2) It is a defence for the person charged with an offence under this section to prove that his possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism.
33. During the Parliamentary debates on the draft of the Act the above provisions were criticised, albeit wrongly, for shifting the burden of proof of the crime on to the accused. Therefore, in relation to Section 57 and certain other provisions, Section 118 provides (though not in the most pellucid prose) that where the prosecution has established an evidential presumption regarding a certain matter, if the accused produces evidence which is sufficient to raise an issue with respect to that matter, the court or jury shall assume that the defence has rebutted the presumption, unless the prosecution disproves beyond reasonable doubt that it has not.
34. Article 6 para. 2 of the European Convention on Human Rights (UNTS Vol. 213 No. 2889; UKTS (1953) 71) does not prohibit presumptions of fact that may operate against the accused: see D. Harris/ M. O'Boyle/ C. War-brick, Law ofthe European Convention on Human Rights, 1995, 243-244, and the judgment of the English Court of Appeal (Criminal Division) of 31 July 2000 in: R. v. Lambert, London Times of 5 September 2000.
35. 34 UNTS Vol. 704 No. 10106; ILM 2 (1963) 1042 et seq.; UKTS (1969) 126.
36. 35 See the Report of the ad hoc Committee (Doc. A/54/37), Annex II.
37. 36 See the end of note 3.
38. 37 ILM 37 (1998) 1002 et seq., (1016).
39. 38 See J. Smith/ B. Hogan, Criminal Law, 1999,179-187.
40. 39 See Meridian Global Funds (1995) 2 AC 500.
41. See, F. Desportes/ F. Le Gunehec, Le nouveau droit penal, 5th edition 1998, Vol. 1, paras 569-626; J. Bell/ S. Boyron/ S. Whittaker, Principles of French 1^,1998,239-41.
42. 41 ILM 28 (1989), 493 et seq.; UKTS (1992) 26.
43. 42 UKTS (1992) 24; /LA/ 17 (1978), 801 et seq.
44. See http://oecd.org/fatf/40Recs_en.htm
45. FATF is very stringent. In May 2000 it severely criticised Austrian plans for the future of anonymous bank accounts, going so far as to say that if the plans were not tightened up by 20 May, Austria would be expelled from FATF as early as 15 June. Austria revised its plans that May.
46. For members of the European Union these measures are already required by the Directive of 10 June 1991 on the prevention of the use of the financial system for the purpose of money laundering (91/308/EEC).