International Convention for Suppression of Financing TerrorismSenate Consideration of Treaty Document 106-49
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[Senate Treaty Document 106-49] [From the U.S. Government Publishing Office] 106th Congress 2d Session SENATE Treaty Doc. 106-49 _______________________________________________________________________ INTERNATIONAL CONVENTION FOR SUPPRESSION OF FINANCING TERRORISM __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES transmitting INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF THE FINANCING OF TERRORISM, ADOPTED BY THE UNITED NATIONS GENERAL ASSEMBLY ON DECEMBER 9, 1999, AND SIGNED ON BEHALF OF THE UNITED STATES OF AMERICA ON JANUARY 10, 2000 October 12, 2000.--Convention was read the first time, and together with the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate. __________ U.S. GOVERNMENT PRINTING OFFICE 089-118 WASHINGTON : 2000 LETTER OF TRANSMITTAL ---------- The White House, October 12, 2000. To the Senate of the United States: With a view to receiving the advice and consent of the Senate to ratification, I transmit herewith the International Convention for the Suppression of the Financing of Terrorism, adopted by the United Nations General Assembly on December 9, 1999, and signed on behalf of the United States of America on January 10, 2000. The report of the Department of State with respect to the Convention is also transmitted for the information of the Senate. In recent years, the United States has increasingly focused world attention on the importance of combating terrorist financing as a means of choking off the resources that fuel international terrorism. While international terrorists do not generally seek financial gain as an end, they actively solicit and raise money and other resources to attract and retain adherents and to support their presence and activities both in the United States and abroad. The present Convention is aimed at cutting off the sustenance that these groups need to operate. This Convention provides, for the first time, and obligation that States Parties criminalize such conduct and establishes an international legal framework for cooperation among States Parties directed toward prevention of such financing and ensuring the prosecution and punishment of offenders, wherever found. Article 2 of the Convention states that any person commits an offense within the meaning of the Convention ``if that person by any means, directly or indirectly, unlawfully and willfully, 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'' either of two categories of terrorist acts defined in the Convention. The first category includes any act that constitutes an offense within the scope of and as defined in one of the counterterrorism treaties listed in the Annex to the Convention. The second category encompasses 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 hostilities in a situation of armed conflict, when the purpose of the act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act. The Convention imposes binding legal obligations upon States Parties either to submit for prosecution or to extradite any person within their jurisdiction who commits an offense as defined in Article 2 of the Convention, attempts to commit such an act, participates as an accomplice, organizes or directs others to commit such an offense, or in any other way contributes to the commission of an offense by a group of persons acting with a common purpose. A State Party is subject to these obligations without regard to the place where the alleged act covered by Article 2 took place. States Parties to the Convention will also be obligated to provide one another legal assistance in investigations or criminal or extradition proceedings brought in respect of the offenses set forth in Article 2. Legislation necessary to implement the Convention will be submitted to the Congress separately. This Convention is a critical new weapon in the campaign against the scourge of international terrorism. I hope that all countries will become Parties to this Convention at the earliest possible time. I recommend, therefore, that the Senate give early and favorable consideration to this Convention, subject to the understanding, declaration and reservation that are described in the accompanying report of the Department of State. William J. Clinton. LETTER OF SUBMITTAL ---------- Department of State, Washington, October 3, 2000. The President, The White House. The President: I have the honor to submit to you, with a view to its transmission to the Senate for advice and consent to ratification, subject to the understandings, declaration and reservation set forth below, the International Convention for the Suppression of the Financing of Terrorism, adopted by the United Nations General Assembly on December 9, 1999, and signed on behalf of the United States of America on January 10, 2000 (the ``Convention''). Pursuant to a French-led Group of Eight (``G-8'') initiative, with strong support and input from the United States, the United Nations General Assembly decided in Resolution 53/108 of a 8 December 1998 that the Ad Hoc Committee established by General Assembly Resolution 51/210 of 17 December 1996 should elaborate an international convention for the suppression of terrorist financing to supplement the existing counterterrorism conventions. Basing its work on a draft text prepared by France, the United States, and other G-8 members, the Ad Hoc Committee successfully negotiated the text during two drafting sessions in New York in March and September-October 1999, and recommended it to the Sixth (Legal) Committee for consideration. On November 18, 1999, the Sixth Committee, by consensus, recommended the draft Convention to the General Assembly for adoption. The Convention was adopted by the General Assembly, by consensus, on December 9, 1999. The Convention fills an important gap in international law by expanding the legal framework for international cooperation in the investigation, prosecution, and extradition of persons who engage in the financing of terrorism. By filling this gap, the Convention advances a critical counterterrorism priority of the United States which was articulated in your September 21, 1998, address to the United Nations General Assembly when you called on all states to enhance their efforts to combat terrorist financing. The Convention provides for States Parties to exercise criminal jurisdiction over the unlawful and willful provision or collection of funds with the intention that they be used or in the knowledge that they are to be used in order to carry out certain terrorist acts as defined in the Convention. In creating such a legal regime, the Convention follows the precedents set by numerous terrorism conventions to which the United States is already a party, including the 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, the 1979 International Convention Against the Taking of Hostages, and the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, with Related Protocol. Like these earlier Conventions, this new Convention requires States Parties to criminalize under their domestic laws certain types of criminal offenses, and also requires parties to extradite or submit for prosecution persons accused of committing or aiding in the commission of such offenses. Article 1 and 2 together serve to define the offenses covered by the Convention, with Article 1 incorporating several definitions of phrases used in Article 2. Article 1 includes a definition of ``funds,'' drawn from the definition of ``property'' in the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, to which the United States is a party. Specifically, the definition of ``funds'' encompasses within its very broad scope ``assets of every kind, whether tangible or intangible, movable or immovable, however acquired, and legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such assets. * * *'' The definition was understood by all delegations to include property, and a list of illustrative examples incorporated at the end of the Article 1.1 definition further conveys its breadth. Paragraph 1 of Article 2 states that any person commits an offense within the meaning of the Convention ``if that person by any means, directly or indirectly, unlawfully and willfully, 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'' either of two categories of terrorist acts. The first category includes any act which constitutes an offense within the scope of and as defined in one of the treaties listed in the annex to the Convention. The second category is 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 hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act. With respect to the first category, the Convention annex lists nine counterterrorism conventions, ranging from the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft to the 1997 International Convention for the Suppression of Terrorist Bombings (``Terrorist Bombings Convention''). The United States is a party to the first eight of the listed conventions and has signed and transmitted to the Senate for its advice and consent to ratification the Terrorist Bombings Convention (Treaty Document 106-6). Paragraph 2 of Article 2 further provides that upon depositing its instrument of ratification, acceptance, approval or accession to the Convention, a state which is not a party to one of the conventions listed in the annex may declare that in the application of the Terrorist Financing Convention to that State Party, the convention at issue shall be deemed not to be included in the annex. Article 2.2(a) further provides that this declaration ceases to have effect as soon as that state becomes a party to the relevant convention, which fact must be notified to the depository. The United States should make such a declaration with respect to the Terrorist Bombings Convention if it is not a party to that Convention at the time of the deposit of its instrument of ratification with respect to the Terrorist Financing Convention. I therefore recommend that, in the event the United States is not a party to the Terrorist Bombings Convention at the time the United States deposits its instrument of ratification of the present Convention, that the following declaration to Article 2.2 be included in the United States instrument of ratification of the Convention: Pursuant to Article 2.2(a) of the Convention, the United States of America declares that, in the application of this Convention to the United States, the International Convention for the Suppression of Terrorist Bombings shall be deemed not to be included in the annex referred to in paragraph 1, subparagraph (a). In the event the United States is a party to the Terrorist Bombings Convention at the time it deposits its instrument of ratification to the Convention, such a declaration would not be deposited. The second category of terrorist acts under Article 2.1(b) incorporates language specifically suggested by the United States. The intent, which was broadly shared by other delegations, was to define the terrorist activity meant to be addressed by the Convention in a way that excluded the legitimate actions of the military forces of states by focusing on the intentional targeting of civilians as such. In order to ensure that the Convention encompassed the financing of attacks on off-duty military personnel, as in the cases of the 1996 Al Khobar Towers bombings in Dhahran, Saudi Arabia, and the 1983 Beirut barracks bombings, the provision was expanded to also apply to attacks on ``any other person not taking an active part in the hostilities in a situation of armed conflict.'' The qualifier requiring that the purpose of the act be to ``intimidate a population, or to compel a Government'' was intended and understood to eliminate mere ``ordinary crime'' from the scope of the Convention. Given the importance of protecting the flexibility of the United States to conduct legitimate activities against all lawful targets and consistent with the view taken by the United States in prior counterterrorism conventions as to their nonapplicability to the activities of state military forces in the exercise oftheir official duties, I recommend an Understanding to make it clear that nothing in the present Convention precludes States Parties from conducting legitimate activities against all lawful targets in accordance with the law of armed conflict. Further, because suspected offenders may seek to claim the benefit of the ``armed conflict'' exception in Article 2.1(b) to avoid extradition or prosecution under the Convention, it would be useful for the United States to articulate an Understanding regarding the scope of this exception. In this respect, an appropriate source of authority would be the widely accepted provision in Paragraph 2 of Article 1 of Protocol II Additional to the Geneva Conventions of 12 August, 1949, concluded at Geneva on June 10, 1977, which President Reagan transmitted to the Senate on January 29, 1987, for advice and consent to ratification (Treaty Doc. 100-2). Specifically, protocol II states that ``armed conflict'' does not include ``internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.'' I therefore recommend that the following understanding be included in the United States instrument of ratification of the Convention: The United States of America understands that nothing in the present Convention precludes States Parties from conducting legitimate activities against all lawful targets in accordance with the law of armed conflict. The United States further understands that the term ``armed conflict'' in Article 2.1(b) does not include internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature. Paragraph 3 of Article 2 provides that for an act to constitute an offense under the Convention, it shall not be necessary that the funds were actually used to carry out one of the two categories of offenses referred to in paragraph 1(a) or (b). Paragraph 4 of Article 2 provides a person also commits an offense if that person attempts to commit an offense as set forth in paragraph 1. Paragraph 5 provides further that any person commits an offense if that person participates as an accomplice in an offense under paragraphs 1 or 4, organizes or directs others to commit such an offense, or in any other way intentionally contributes to the commission of one or more such offenses by a group of persons acting with a common purpose. These ancillary offenses in paragraph 3 are more comprehensive than those included in the earlier counterterrorism conventions to which the United States is a party, and it is anticipated that they will strengthen the ability of the international community to investigate, prosecute and extradite those who conspire or otherwise contribute to the commission of offenses defined in the Convention. Article 3 makes most of the Convention's provisions inapplicable to acts of terrorist financing that lack an international aspect. In generally limiting its scope of application to those cases involving elements from more than one state, the Convention follows the precedent set by the prior counterterrorism conventions to which the United States is a party such as the 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation and the 1979 Convention Against the Taking of Hostages. Article 4 requires States Parties to make the offenses enumerated in Article 2 criminal offenses punishable under their domestic laws by appropriate penalties that take into account their grave nature. Article 5 provides that States Parties, in accordance with their domestic legal principles, shall take the necessary measures to enable a legal entity located in their territory or organized under their laws to be held liable when a person responsible for the management or control of that legal entity has, in that capacity, committed an offense set forth in Article 2. Such liability may be criminal, civil, or administrative and is without prejudice to the criminal liability of individuals having committed the offenses. This provision is particularly important in the context of terrorist financing where banks and other financial institutions may be intentionally misused by their senior officers to facilitate acts of terrorist financing. Article 6 requires States Parties to adopt such measures as may be necessary to ensure that criminal acts within the scope of the Convention are not justifiable by considerations of a political, philosophical,ideological, racial, ethnic, religious or other similar nature. Under Article 7, each State Party must establish its jurisdiction over the offenses set forth in Article 2 when the offense is committed: (1) in its territory; (2) on board a vessel flying its flag or an aircraft registered under its laws at the time the offense is committed; or (3) by a national of that State. Each State Part has discretion to establish jurisdiction over offenses set forth in Article 2 where the offense was directed towards or resulted in the carrying out of one of the two categories of terrorist acts referred to in Article 2.1(a) or (b): in the territory of that State; against national of that State; against a State or government facility of that State abroad, including diplomatic or consular premises of that State; or committed in an attempt to compel that State to do or abstain from doing any act. Each State Party also has the discretion to establish jurisdiction over offenses set forth in Article 2 where the offense is committed either by a stateless person who has his or her habitual residence in the territory of that State or on board an aircraft which is operated by the Government of that State. Upon becoming a party to the Convention, a State must notify the United Nations Secretary-General of the jurisdiction it has established under its domestic law in accordance with paragraph 2. Moreover, any changes to this jurisdiction must be immediately notified to the Secretary-General. Thus, under the terms of Article 7, States Parties may enact a broad array of jurisdictional bases over the offenses enumerated in Article 2. Of significant interest and value to the United States, which has many government facilities outside of its territory, is the Convention's recognition of jurisdiction over the financing of terrorist attacks against a State or government facility of that State abroad, including an embassy or consular premises of that State. This would give the United States universally recognized jurisdiction based on this Convention, for example, to prosecute in U.S. courts the financiers of attacks on all U.S. Government facilities abroad, including diplomatic and consular premises such as those attacked in 1998 in Kenya and Tanzania, as well as U.S. military installations such as those attacked in the 1996 Al- Khobar Towers bombing in Dhahrden, Saudi Arabia. Also of significant interest and value to the United States is the provision in Article 7 providing that States Parties may criminalize conduct where the offense being financed is committed in an attempt to compel that State to do or abstain from doing any act. This provides jurisdiction for offenses under this Convention where terrorists seek to coerce State action, even where a national or facility of that State is not the target of the attack. In addition to the bases for jurisdiction set forth in paragraphs 1 and 2 of Article 7, paragraph 4 of Article 7 requires jurisdiction to be established by a State Party over the offenses set forth in Article 2 where the alleged offender is present in its territory and is not extradited to any of the State Parties that have established their jurisdiction in accordance with paragraphs 1 and 2. In the event that more than one State Party claims jurisdiction over offenses set forth in Article 2, the Convention provides that they must strive to coordinate their actions appropriately. The Convention also provides that without prejudice to the norms of general international law, it does not exclude the exercise of any criminal jurisdiction established by a State Party in accordance with its domestic law. Article 8 provides that each State Party shall take appropriate measures, in accordance with its domestic legal principles, to identify, detect and freeze, or seize any funds used or allocated for the purpose of committing the offenses set forth in Article 2, as well as the proceeds derived from such offenses, for purposes of possible forfeiture. Further, each State Party concerned may consider concluding agreements on the sharing with other States Parties, on a regular or case- by-case basis, of the funds derived from the forfeitures referred to in this Article. The Article also provides that its provisions are to be implemented withoutprejudice to the rights of third parties acting in good faith. Article 9 includes certain provisions relating to offenders or alleged offenders detained for the purpose of extradition or prosecution. This article, like the Convention as a whole as well as other similar counterterrorism conventions, is not intended to create individual rights of action. In a provision of crucial importance for the Convention, Paragraph 1 of Article 10 declares that a State Party which does not extradite an alleged offender found in its territory shall ``without exception whatsoever and whether or not the offense was committed in its territory'' submit the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities are obligated to take their decision in the same manner as in the case of any other offense of a grave nature under the law of that State. In an innovation over the prior counterterrorism conventions to which the United States is a party, this Convention includes a provision in paragraph 2 of Article 10 (first proposed by the United States in the Terrorist Bombings Convention) to the effect that the obligation in paragraph 1 to extradite or submit for prosecution can be discharged by the temporary transfer of nationals for trial by those States Parties that could not otherwise extradite their nationals, provided both the Requesting and Requested States agree. This provision on temporary transfer of nationals for trial is a useful recognition of this practice by the international community in a binding multilateral legal instrument. Paragraph 1 of Article 11 amends existing extradition treaties to include the offenses defined in Article 2 as extraditable offenses and paragraph 3 provides that they shall be extraditable offenses between States Parties which do not make extradite conditional on an extradition treaty. Article 12 establishes general mutual legal assistance obligations between States Parties in connection with investigations or criminal or extradition proceedings brought in respect of the offenses in Article 2. In an innovation over prior counterterrorism conventions, the Convention in paragraph 2 provides that States Parties may not refuse a request for mutual legal assistance on the ground of bank secrecy. Article 13 in a related innovation over prior counterterrorism conventions provides that none of the offenses set forth in Article 2 shall be regarded, for the purposes of extradition or mutual legal assistance, as a fiscal offense and, accordingly, States Parties may not refuse a request for such assistance on the sole ground that it concerns a fiscal offense. Article 14 provides that none of the offenses set forth in Article 2 shall be regarded, for the purposes of extradition or mutual legal assistance, as a political offense or as an offense connected with a political offense, or as an offense inspired by political motives. Accordingly, a request for extradition or mutual legal assistance may not be refused solely on such grounds. This Article provides a useful narrowing of the political offense exception in such cases. In many modern United States bilateral extradition treaties there are already provisions which bar application of the political offense exception to extradition with respect to offenses covered under multilateral conventions to which ``prosecute or extradite'' obligations apply. The 1998 Terrorist Bombings Convention was the first U.N. counterterrorism instrument to similarly limit the political offense exception. This provision builds on this trend by making the restriction on the invocation of the political offense exception for requests based on offenses under Article 2 a matter of general application rather than dependent on the terms of individual bilateral law enforcement treaties between the States Parties. Article 15 provides that nothing in the Convention shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance if the requested State Party has substantial grounds for believing that the request for extradition for offenses set forth in Article 2 or for mutual legal assistance with respect to such offenses has been made for the purpose of prosecuting or punishing a person on accountof that person's race, religion, nationality, ethnic origin or political opinion or that compliance with the request would cause prejudice to that person's position for any of these reasons. This Article is similar to provisions already included in a number of U.N. counterterrorism treaties. Article 16 provides and establishes various conditions for the temporary transfer to one State Party, for purposes of assistance under the Convention, of a person in custody in another State Party, provided that the person in question consents and the competent authorities of both States Parties agree. This provision was also included at the suggestion of the United States in the Terrorist Bombings Convention and is similar to provisions found in virtually all of the bilateral mutual legal assistance treaties to which the United States is a party. Article 17 discusses the rights of persons taken into custody or regarding whom any other measures are taken or proceedings are carried out pursuant to this Convention. Article 18 states that States Parties shall cooperate in the prevention of offenses set forth in Article 2 by taking all practicable measures to prevent and counter preparations in their respective territories for the commission of those offenses within or outside their territories. The Article provides that States parties shall consider, inter alia a series of financial including efforts by financial institutions to identify unusual or suspicious transactions and to report transactions suspected of stemming from criminal activity. Article 19 contains a requirement to notify the United Nations Secretary-General of the final outcome of criminal proceedings relating to alleged offenders under the Convention. Article 20 states that States Parties shall carry out their obligations under the Convention in a manner consistent with the principles of sovereign equality and territorial integrity of states and that of non intervention in the domestic affairs of other states. Article 21 provides that nothing in the Convention shall affect other rights, obligations and responsibilities of states and individuals under international law. Article 22 provides that nothing in the Convention entitles a State Party to undertake in the territory of another State Party the exercise of jurisdiction and performance of functions which are exclusively reserved for the authorities of that other State Party by its domestic law. Article 23 relates to the first category of offenses described in Article 2.1(a). It establishes a mechanism for expanding the scope of the Convention by adding new conventions to the Annex. The Annex may be amended by the addition of relevant treaties that: are open to participation by all States; have entered into force; and have been ratified, accepted, approved or acceded to by at least 22 States Parties to the Convention. Any State Party may propose such an amendment, and each amendment, shall be deemed adopted unless one third of the States Parties object to it in writing not later than 180 days after its circulation. Adopted amendments to the Annex shall enter into force 30 days after the deposit of the twenty-second instrument of ratification, acceptance or approval of such amendment for all those States Parties that have deposited such an instrument. Thereafter, the amendment shall enter into force for any other State Party on the thirtieth day after the deposit of its own instrument of ratification, acceptance or approval. This mechanism ensures both that the scope of the Convention can evolve to encompass the financing of additional terrorist activity, as may be agreed by the international community, and that the scope of the present Convention is not expanded with respect to a particular State Party without that State party's explicit agreement. Under this provision, the United States expects to deposit an instrument of acceptance of such an amendment if the treaty that is the subject of the amendment has entered into force for the United States with the advice and consent of the Senate. Otherwise, any amendment that the United States proposes to accept would be submitted to the Senate for its advice and consent. Article 24.1 provides that disputes between two or more States Parties concerning the interpretation orapplication of the Convention that cannot be settled through negotiation within a reasonable time shall be submitted at the request of one of them to ad hoc arbitration, or, failing agreement on the organization of such arbitration, to the International Court of Justice. Article 24.2 provides that a State may make a declaration excluding this dispute- resolution obligation at the time of signature, ratification, acceptance, approval or accession. In October 1985, the United States withdrew its declaration under Article 36 of the Statute of the International Court of Justice accepting the compulsory jurisdiction of the Court. Consistent with that discussion, I recommend that the following reservation to Article 24.1 be included in the United States instrument of ratification: Pursuant to Article 24.2 of the Convention, the United States of America declares that it does not consider itself bound by Article 24.1, but reserves the right specifically to agree in a particular case to follow the arbitration procedure set forth in the Convention or any other procedure for arbitration. This reservation would allow the United States to agree to an adjudication by a chamber of the Court in a particular case, if that were deemed desirable. As detailed in Article 26, the Convention will enter into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification, acceptance, approval or accession. Pursuant to Article 27, a State Party to the Convention may denounce it by written notice to the United Nations Secretary-General. Denunciation will take effect one year from the date of receipt of the notification by the United States Secretary-General. Recommended legislation necessary to implement the Convention is being prepared for separate submission to the Congress. The Department of Justice joins in recommending that this Convention be transmitted to the Senate at an early date for its advice and consent to ratification, subject to the understanding, the declaration relating to Article 2, and the reservation to Article 24.1, previously described. Respectfully submitted, Strobe Talbott.