Counter Terrorism Financing
DOI | 10.1177/203228441500600308 |
Date | 01 September 2015 |
Author | Clive Walker,Colin King |
Published date | 01 September 2015 |
Subject Matter | Article |
372 Intersentia
COUNTER TERRORISM FINANCING
A Redundant Fragmentation?
C K* and C W**
1. INTRODUCTION
Terrorism has long been subject to rapid development and polycentric formats and
impacts. In such conditions, t he maintenance of coherent and comprehensive policies
and legal responses is challenging. e complications may be worsened when the
phenomenon becomes global, and so local responses a re skewed either by global
meta-norms (such as the grandi loquent but o en indeterminate and i lliberal
pronouncements from the United Nations) or are shaped by gauche exercises of policy
transfer1 w hich can cause fragmentation as much as har mony.2
Responses to the nancing of ill icit activities, whether terrorism or cr imes, may be
susceptible to these cha llenges and may thereby su er from:
‘… the double fragmentation of world soc iety and its law. e fragmentation is a double
one because, rstly, the functional di erentiation of modern society causes coll isions
between di erent social func tional systems a nd the legal norms coupled to them .
Secondly, di erences between social organisational principles cause clashes between the
formal law of modern soc iety and the socia lly embedded legal sy stems of indigenous
societies.’3
One aspect amongst others which re ects this double fragmentat ion has concerned
the growth of t wo distinct regimes to respond to the nancing of illicit act ivities. On
the one hand are anti-money laundering (AML)/proceeds of crime (PoC) policy and
* Senior Lectu rer in Law, Sussex Law School, Universit y of Sussex.
** Professor Emerit us, School of Law, University of Leed s.
1 See T. Jones a nd T. Newburn, Policy Transfer and Criminal Justice (Maidenhead, Open University
Press, 2007); M. Ev ans, ‘Policy tran sfer in critical pers pective’ (2009) 30 Polic y Studies 243.
2 See G . Teubner, ‘Legal Irr itants: Good Faith in Br itish Law or How Unifyi ng Law Ends Up in New
Divergencies’ (1998) 61 Modern Law Review 11.
3 G. Teubner and P. Korth, ‘ Two Kinds of Legal Plura lism: Collision of L aws in the Double
Fragmentation of World Societ y’ in M.A. Young (ed), Regime Interaction in International Law:
Facing Fragment ation (Cambridge, Cam bridge University Press, 2 012) p 27.
Counter Terrorism Fina ncing
New Journal of Eu ropean Crimina l Law, Vol. 6, Issue 3, 2015 373
legislation which, in their cu rrent guise, can be tr aced back over four decades.4 e
legislation has proven to be remarkably proli c and increasingly complex in term s of
the nancial activ ities to which it applies, despite continued uncert ainty as to its
impact.
Yet, ‘the functional di erentiation of modern societ y’ (as quoted above) seems to
point in a di erent direction when it comes to the development of counter-terrorist
nancing (CTF) policy and legislation. CT F is e ectively of more recent origins –
mainly post-9/11. us, while AML/PoC were in full s wing when the hour of need
arrived in 2001, CTF has emerged as a d istinct eld, w ith a rival degree of complexity
and distinct i mpact. In this way, doubts about the whole strategy of AML/PoC and
their usefu lness as a ploy for the prevention, disruption, conviction, or punishment of
crime do not rule out a read across to CTF b ecause corresponding doubts are
harboured, especially if the reading across ca n improve the chances of success.5 In
both cases, t he techniques are instrumenta l: ‘Money laundering is not itself the target;
the regime prima rily aims to reduce the ac tivities that generate the money to be
laundered (e.g., drug dealing, cor ruption, terrorism).’6
e core objective for this article is to ex plore whether this frag mentation was
inevitable and should be mai ntained today. Has the time arr ived instead for
consolidation? In order to answer these questions, the article w ill rst analyse the
background and histor y of how CTF was developed as an addit ion to AML/PoC and
why it was not incorporated withi n its predecessor.
is initia l survey will lead into the second part of the ar ticle in which there is
re ection on the core characteristics of CTF – its ‘DNA’ – and whether they mark it
out as a ‘closed system’7 which cannot receive mea ning from AML/PoC. e survey
forces the recognition of some true d istinctions, thoug h not to the extent of con rming
autopoetic systems in operation.
In the third par t of the article, fac tors of con uence should equally be ex amined
– whether there are strateg ic and operational imperatives which should press towards
con uence rather t han dissonance.
e conclusion seeks to re ect on the relationship between CTF and AM L/PoC,
bearing in mi nd that these are categories which operate pri marily not as academic
constructs but as formulat ions which determine personal l ives and professional
actions.
4 Older nancial-oriented cases tended to rely on pretextual crimes such as smuggling and tax
Capone 93 F 2d 840 (1937), cert denied, 303 US 651 (1938).
5 Compa re M.-F. Cuéllar, ‘ e tenuous relationship b etween the ght against money l aundering and
the disruption of c riminal nance’ (2003) 93 Journal of Criminal L aw and Criminology 311 .
6 E. Truman and P. Reuter, Chasing Dir ty Money: Progress on Anti-Mon ey Laundering (Washington
DC, Institut e for International Economic s, 2004), p 6.
7 See N. Luhmann, e Di erentiation of Society (New York, Colu mbia Univ ersi ty Pr ess , 1982) , ch 10 ; N.
Luhmann, ‘ e autopoiesi s of social s ystems’ in F. Geyer a nd J. van der Z ouwen (eds), Sociocybernetics:
Complexity, Auto poiesis, and Obse rvation of Social Sys tems (Beverley Hill s, Sage, 1986).
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