Ed. note. This post is the latest in our series on the U.S. Supreme Court case Jesner. v. Arab Bank, a case that is slated to resolve the question of whether corporations can be sued under international law. Oral arguments are today.
One of the causes of action asserted in the Supreme Court’s case, Jesner v. Arab Bank, is terrorist financing, an international crime also at issue in the case brought by Ukraine against Russia before the International Court of Justice (see my coverage here). As the Court hears arguments today on the case, this article provides background on the multilateral treaty prohibiting terrorist financing and calling for perpetrators to be brought to justice, both criminally and civilly. It also situates this treaty within other multilateral efforts to prohibit various manifestations of terrorism.
The prohibition on terrorist financing finds expression in the International Convention for the Suppression of the Financing of Terrorism (“Convention”), adopted by the United Nations on December 9, 1999, with Resolution A/54/109. The Convention went into effect on April 10, 2002, and has been ratified by all U.N. states with the exception of Burundi, Chad, Eritrea, Gambia, Iran, Lebanon, Somalia, and South Sudan.
The heart of the Convention is found in Article 2(1), which defines the target offense as follows:
Any person commits an offence within the meaning of this Convention if that person 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) An act which constitutes an offense within the scope of and as defined in one of the treaties listed in the annex; or
(b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such an act, by its 1nature or context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing any act.
The prohibited act is complete once the funds are conveyed; it is not necessary to prove that the funds were actually used to carry out a terrorist offense.
The Convention broke new ground by identifying the purpose of terrorism, namely to terrorize the population. The treaty is thus premised upon the actual intention, or knowledge, that the funds will be used to carry out one of the offenses listed in an annex to the Convention. This specific intent element is important because it distinguishes the financing of terrorism from legitimate humanitarian assistance or international investment. It also distinguishes acts of terrorism from ordinary crimes—a challenge for all of international criminal law.
Read the full post at Just Security.