One of the key objectives of the Financial Action Task Force is to establish guidelines and promote effective legal and operational measures to combat money laundering and terrorist financing. To achieve this, GAFI promulgated the 40 Recommendations. In this article, we will analyze the fifth recommendation, which addresses the criminalization of terrorist financing.
FATF’s Fifth Recommendation requires countries to implement the offense of terrorist financing in their legal systems. This offense should not only cover the financing of terrorist acts but also the funding of terrorist organizations and individual terrorists. Furthermore, countries must ensure that terrorist financing is classified as a predicate offense to money laundering.
The legal foundation recommended by GAFI for establishing the offense of terrorist financing is the International Convention for the Suppression of the Financing of Terrorism.
In summary, Recommendation 5 aims to ensure that countries have the appropriate legal systems to prosecute and apply criminal penalties to individuals who finance terrorism. Additionally, the Fifth Recommendation emphasizes the need for countries to include the offense of terrorist financing as a determining factor in money laundering offenses.
In addition to this recommendation, GAFI provides an interpretive note that complements the provisions established by the recommendation. It first clarifies that the offense of terrorist financing should apply to any individual who knowingly provides or collects funds or assets with the intention that they will be used to carry out a terrorist act, by a terrorist organization, or by an individual terrorist. Moreover, this financing should include travel by a terrorist to a state other than their country of residence with the purpose of committing a terrorist act or receiving terrorist training.
The interpretive note also recommends that the offense of terrorist financing extend to any funds or assets, regardless of the legitimacy of the source. Furthermore, it is not necessary to prove that the funds were actually used to finance terrorism; the mere receipt, conversion, or acquisition of such assets is sufficient.
Additionally, the interpretive note states that there must be effective and proportional criminal penalties for individuals convicted of terrorist financing. It also notes that legal entities may be held criminally liable for the offense of terrorist financing.
Finally, the interpretive note highlights that the offense of terrorist financing should be prosecuted regardless of whether the accused person is in the same country where the terrorist act occurred or where the terrorist organization is located.
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