Applicability of the international law on terrorism to TOC

Usually, the fight against TOC is understood as a means to also fight terrorist crimes because organised crime can serve as a means to provide the needed funding for terrorist acts. Therefore, the fight against TOC and the international treaties on TOC are perceived as an ever-more-i mportant instrument to prevent terrorist acts, too. However, a different question has not been examined very closely so far: the question whether international law on terrorism might also have effects on TOC. For this reason the following part of this chapter focuses on the question whether the instruments of international law on terrorism allow of application to TOC as well.

The early UN conventions on aircraft terrorism do not contain any provisions that could be applied to TOC offences.9° However, if TOC offences are used as a means to finance terrorist crimes, they can at the same time amount to an offence consisting of the aiding/assisting or other support of terrorist crimes. If the profit from TOC offences is applied to the commission of terrorist crimes, this may constitute assistance of terrorist crimes. The connection is obvious and addressed as a discrete area in the 1999 Terrorist Financing Convention” which targets funding activities directly” The Convention stipulates it as a crime under international law if a person of Homeland and International Security, Washington DC, Center for Transatlantic Relations, 2008, pp. 57-72, p. 59; Shelley, Dirty Entanglements, cited in note 72 above, p. 118; Shelley and Picarelli, ‘Methods and motives’, cited in note 70 above, p. 53.

  • 88 Compare Makarenko, ‘The crime-terror continuum’, cited in note 70 above, p. 137 (estimated 40 per cent of Colombian territory in the year 2000); Williams, ‘Terrorist financing and organized crime’, cited in note 72 above, p. 132; Shelley, Dirty Entanglements, cited in note 72 above, p. 228. Shelley also suggests that Colombia is in a state of recovery, while the drug crime threat seems to have been moved to Central America and Mexico, p. 230. Compare also the case study by Rollins, Wyler and Rosen, in ‘International terrorism and transnational crime’, cited in note 75 above, p. 16.
  • 89 Compare Schmid, ‘The links between TOC and terrorist crimes’, cited in note 6 above, p. 66; Shelley, Dirty Entanglements, cited in note 72 above, p. 112.
  • 9° See section 5.2.1.1 of this chapter.
  • 91 UNTS Vol. 2178, 197ff. (and UN SC Res. No. 1373 (2001) of 28 September 2001).
  • 92 See Art. 2(1), UNTS Vol. 2178, 230.

by any means, directly or indirectly, unlawfully and wilfully, 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 ... [a terrorist crime].[1] [2] [3] [4]

The Terrorist Financing Convention aims at exterminating terrorist organisations’ roots in preventing their funding. To this end, it requires the UN member states to criminalize fundraising for terrorist(s) (organisations) and to cooperate effectively in the prosecution of acts financing terrorism. If terrorist acts or terrorist organisations in general are financed by profits garnered through the commission of organised crimes, the collecting of illegal benefits can at the same time amount to an act of organised crime and an act falling within the purview of the Terrorist Financing Convention. Yet this presupposes that the organised crime offences were meant to fund terrorist acts or for the support of a terrorist organisation in general. It would not suffice if the dedication of illegally gained profits to a terrorist organisation is detached from the actual criminal offence that was committed to gain the financial benefits at the outset—for example, if the members of an organised crime syndicate decide to ‘donate’ a certain amount to a terrorist organisation after the commission of the initial crime. If the commission of the organised crime offence was not meant to also gain benefits for future funding of terrorist crimes, the link between TOC and terrorism is not established. The subsequent donation of the illegally obtained profit to a terrorist organisation, however, would amount to terrorist financing.

In contrast to this restriction it has to be pointed out that under the Terrorist Financing Convention a crime under the convention is committed even by participation in the financing of terrorist crimes.94 From the perspective of the ultimate terrorist act this amounts to mere assistance (provided to the person who finances terrorism) in the commission of terrorism (by financing). Hence, as described, the offence somehow predates the punishable act twice.

In addition to the far-fetched ambit of the Terrorist Financing Convention, modern conventions on terrorist crimes contain provisions that extend the ambit of criminalized behaviour far into even remote acts of support. Acts of assisting/supporting terrorist activities are encompassed by the modern conventions. This holds true for the Terrorist Bombing Convention (199 7),95 the Nuclear Terrorism Convention (2005),96 and the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (2010, the ‘Beijing Convention’)” As long as TOC is used as a means to generate funds for the commission of terrorist crimes, this activity might also fall within the purview of these conventions. Yet since the Terrorist Financing Convention already defines the act of financing very broadly, a separate application of other terrorist conventions on the acts of financing is not needed to cover the funding activity.

A different question is whether TOC instruments already encompass the financing of terrorism. This is not the case whenever the act generating financial benefits is itself lawful—for example if an organised crime syndicate also engages in lawful business like real estate trading, etc. Such cases are only addressed by the Terrorist Financing Convention—for TOC Conventions clearly presuppose that the organised crime is a crime in itself.

  • [1] See for details section 5.2.1.1 of this chapter.
  • [2] See Art. 2(5): ‘Any person also commits an offence if that person: (a) participates as an accomplice (b) organizes or directs others to commit an offence (c) contributes to the commission ofone or more offences .’.
  • [3] Art. 2(3)(a), (b), (c), UNTS Vol. 2149, 286. 96 Art. 2(4)(a), (b), (c), UNTS Vol. 2445, 139.
  • [4] 97 Art. 1(5)(b), ICAO Doc. 9960. This convention is not yet in force.
 
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