Starving terrorists of their financial oxygen – at all costs?
| Pages | 282-306 |
| Published date | 20 July 2010 |
| DOI | https://doi.org/10.1108/13685201011057154 |
| Date | 20 July 2010 |
| Author | Sidney Yankson |
| Subject Matter | Accounting & finance |
Starving terrorists of their
financial oxygen – at all costs?
Sidney Yankson
School of Law, Boston University, Boston, Massachusetts, USA
Abstract
Purpose – The purpose of this paper is to argue that the leadin‘g international actor responsible for
the maintenance of peace and security, the United Nations Security Council (UNSC), must ensure that
they strictly abide by accepted fundamental human rights norms when promulgating and enforcing
resolutions for freezing assets of suspected terrorists.
Design/methodology/approach – The paper presents an overview of some fundamental human
rights affected by the UN resolutions. It then compares leading case law from both the international
(European Court of Justice) and domestic (the UK and the USA) perspectives. Finally, the paper
discusses the leading academic critiques before exploring whether the UNSC is right to infringe or
derogate from human rights norms in its counter-terrorism policy. If so, in what circumstances and
under what conditions may they be right to do so?
Findings – There are several fundamental humanrights norms which are not respected by the UNSC
in the area of terrorist financing.
Research limitations/implications – Research could be expanded to other courts. Further
research should consider additional human rights that were outside the scope of this paper.
Practical implications – The UNSC should allow special advocates on all matters both before the
ombudsman and themselves. This should provide greater transparency.
Social implications – Thepaper should draw attention to the seemingly incongruous position of the
UNSC, tasked with protecting us and our human rights, when in fact they themselves may be breaching
them.
Originality/value – The paper will be valuable to governments and regulators that seek to regulate
the financial markets. It will also be useful to human rights activists.
Keywords Terrorism, Financing, Human rights, Humanrights (law), International organizations
Paper type Research paper
Rights may be less than absolute and one principle may have to give way to an urgent policy
with which it competes on particular facts (Dworkin, 1977).
Introduction
This paper will review the designation system under United Nations Security Council
(UNSC) resolutions 1267 (1999)[1] and 1373 (2001)[2]. The purpose of these two
resolutions is to freeze funds or other assets. These resolutions differ in the persons and
entities whose funds or other assets are to be frozen, the authorities responsible for
making these designations and the effect of these designations[3]. UNSC resolution
1267 (1999) obligates jurisdictions to freeze funds and assets owned or controlled by
Al-Qaida, The Taliban, Usama Bin Laden or persons and entities associated with
them[4]. The designations of persons and entities for the purpose of this resolution can
only be made by the UN Al-Qaida and Taliban Sanctions Committee (ATSC). All
UN members must follow these designations[5].
UNSC resolution 1373 (2001) obligates jurisdictions[6] to freeze funds and assets of
persons, or entities associated with them, who commit, or attempt to commit, terro rist
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JMLC
13,3
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Journal of Money Laundering Control
Vol. 13 No. 3, 2010
pp. 282-306
qEmerald Group Publishing Limited
1368-5201
DOI 10.1108/13685201011057154
acts or participate in or facilitate the commission of terrorist acts[7]. Each individual
jurisdiction has the authority to designate the persons or entities that should have their
assets frozen and each jurisdiction should give effect to other jurisdictions freezing
actions. Each jurisdiction receiving a request for an asset freeze has to satisfyitself that
according to applicable legal principles, a request for designation is supported by
reasonable grounds, or a reasonable basis, for asset freezing[8]. The 1999 Terrorist
Financing Convention also seeks to achieve similar objectives to the aforementioned
resolutions for the high contracting parties[9]. By September 2001, the 1999 convention
had not received the required 22 ratifications (Bantekas, 2003). UNSC resolution 1373
changed all that by making the gist of the 1999 Convention binding on all UN member
states irrespective of their ratification or otherwise of the convention.
Fundamental human rights
I would like to take a brief look at the nature of the rights themselves, are they jus
cogens rights and if so, can they be derogated or varied from in any way?
Right to property
The UN charter does not contain a provision dealing expressly with property rights.
The Universal Declaration of Human Rights (UDHR), however, states that everyone
has the right to own property and shall not be deprived of that property arbitrarily[10].
The UDHR is not legally binding on international actors. Neither the International
Covenanton Civil and Political Rightsnor the International Covenanton Economic, Social
and Cultural Rights make any express reference to property rights being protected.
Article 1 of Protocol No. 1 to the European Convention on Human Rights (ECHR)
guarantees the right to property[11]. In Marckx v. Belgium[12] the court defined the
scope of Article 1 of Protocol 1 and held that individuals should be free from arbitrary
interference by the state. The provision does, however, provide the state with a right to
control the use of or even deprive an individual of his or her property. The right to
property is not absolute (Dworkin, 1977). The courts have generally given the states a
wide margin of interference with property rights. Article 1 of Protocol 1 gives no explicit
right to compensation, but the courts have held that it is required[13]. Interference by a
state is subject to restrictions. The interference must be prescribed by law, in the public
interest and necessary in a democratic society. All three conditions must be met
otherwise there will be a violation of the ECHR. Also, Article 15 of the ECHR allows
states to take measures derogating from its obligations to respect property rights, to the
extent strictly required by the situation, and provided such measures are not
inconsistent with its other obligations under international law[14]. Waldron (1988) has
stated that a right to property is essential to human identity and dignity. The
US constitution protects private property taken for public use[15].
Due process rights
Due process rights are an accepted norm of domestic and international law[16]. As far
as the ECHR is concerned due process rights are enshrined in Article 6 Section 1 ECHR
which enshrines the right to procedural guarantees, due process, and a fair trial[17].
According to Farrall (2007/2008), potential sanctions targets should be presumed
innocent until proven guilty. Farrell advocates temporary freezing pending a process
during which the targeted individuals could present their appeals. The human rights
Starving
terrorists
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