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PANPACIFIC UNIVERSITY
Urdaneta City

Graduate School
______________________________________________________________________
Student: REYNARD B. LOPEZ
Teacher: DR. MYLENE C. EUBLERA
Course: TRANSNATIONAL CRIME AND TERRORISM
Topic: THE THREATS OF TRANSNATIONAL CRIME

INTRODUCTION:

In the protracted international legal debates about countering

international terrorism through the criminal law, most attention has

focused on the development of ‘sectoral’ transnational cooperation

conventions addressing particular terrorist methods; efforts to

comprehensively define terrorism as a specific crime; and whether

terrorism can be prosecuted as international crimes. Less well

explored is the extent to which international terrorism can be

effectively addressed through the legal frameworks for suppressing

other transnational crimes. In some cases, terrorist acts may

alternatively qualify as such crimes. In other cases, terrorist groups

may incidentally commit such crimes to support their core terrorist

activities. In yet other situations, there may be tactical alliances

or cooperation between organized crime groups and terrorist

organizations which involve criminality, for instance in providing

expertise, resources, or other support. While various facets of the

links between terrorism and organized crime have been explored in the

social sciences, the broad spectrum of legal linkages is less well

articulated.

The relationship between terrorism and the UN Transnational

Organized Crime Convention 2000 (‘UNTOC’), its offences and three

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protocols. The UNTOC defines transnational organized crime and

requires states parties to criminalize participation in an organized

criminal group, namely a group that engages in serious offences under

national law for financial or other material benefit. The UNTOC also

establishes related offences of money laundering and corruption. The

three protocols to the UNTOC further require states parties to

criminalize human trafficking, migrant smuggling, and illicit

trafficking in firearms. The relationship between terrorism and the

UNTOC regime is complicated by the legal distinction between the

private or profit-orientation of transnational organized crime and the

public or political motivation of most terrorism. The multiplicity of

legal regimes and definitions governing terrorism often blurs this

distinction, however, resulting in both overlap and separation between

the UNTOC offences and terrorism.

It investigates the relationship between terrorism and a cluster

of other, more disparate transnational crimes. Foremost amongst these

is drug trafficking, which is one of the most common transnational

crimes committed by terrorist groups to finance their operations.

Other transnational crimes considered include illicit trafficking in

cultural property, illicit exploitation of natural resources and

environmental crimes, and kidnapping for ransom. Some of these crimes

are governed by instruments of general application in peacetime as

well as the special rules of international humanitarian law (IHL)

where such activities occur during armed conflict.

The legal problems are contextualized by reference to evidence of

links in practice between terrorism and the various transnational

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crimes. While there is much speculation about the presumed linkages,

empirical evidence is often limited or uncertain. A better

understanding of how the suite of existing transnational crimes can be

applied, in principle, to terrorism and terrorist groups, and the gaps

in such regimes, may enhance legal responses to terrorism as the need

arises in specific cases.

UN Convention against Transnational Organized Crime 2000

The relationship between the legal categories of terrorism and

transnational organized crime is complex and context dependent. The

preamble to the UNTOC twice notes the growing links between

transnational organized crime and terrorist crimes, indicating that

they are distinct though inter-related phenomena. The General Assembly

resolution adopting the UNTOC likewise calls on states to recognize

the links between transnational organized crime and acts of terrorism.

It further recommends that the Ad Hoc Committee drafting (since 2000)

a comprehensive convention on terrorism should consider the UNTOC’s

provisions.

The UNTOC defines transnational organized crime as serious crimes

under national law, where conduct is transnational, and an ‘organized

criminal group’ is involved. The latter is further defined by

reference to a specific intent requirement. An organized criminal

group is a group ‘acting with the aim of committing one or more

serious crimes… in order to obtain… a financial or other material

benefit’.

In consequence of this definition, at a legal level terrorism and

transnational organized crime may sometimes overlap and sometimes

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differ. Terrorism and organized crime often share the characteristics

of being perpetrated by structured groups, involving serious national

law offences of more than four years imprisonment, and a transnational

element. The specific intent requirement of a financial or material

benefit is the key to understanding the overlap or differentiation

between terrorism and transnational organized crime.

Terrorist groups often finance themselves and their terrorist

operations through serious criminal activities, such as robbery, drug

trafficking, money laundering, extortion, kidnapping for ransom,

discussed further below. In such cases, the immediate aim of the group

in committing those particular crimes is to obtain a financial or

material benefit. This is true even if there is a further, ulterior

aim to use the proceeds of those crimes to fund terrorist acts.

Definitionally, the ‘aim’ relates to the immediate, not ulterior,

purpose of the crime without specifying a preferred relationship

between the categories.

Further, the UNTOC defines the group’s aim in relation to its

‘acting… with the aim of committing one or more serious crimes’ for

profit, rather than in relation to the overall aim or purpose of the

group itself. There is thus no requirement, for instance, that the

group’s primary or predominant purpose overall is to pursue financial

or material gain; the specific intent element relates to its aim to

commit ‘one or more serious crimes’. The definition does not therefore

exclude the activities of groups dedicated to terrorism that

incidentally commit serious crimes for profit in order to fund their

terrorist acts and political agendas.

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From the standpoint of law enforcement, in many cases it may be

easier to prosecute such conduct as organized crime than as terrorism,

where doing so avoids the need to prove the additional definitional

elements of terrorism offences (such as a special intent to intimidate

a population or coerce a government, and/or a political, religious or

ideological motive).

One the other hand, the UNTOC will not apply where terrorist

groups commit serious crimes that are not intended to obtain a

financial or other material benefit. According to the UN Office on

Drugs and Crime’s legislative guide, the UNTOC was intended to exclude

groups with ‘purely non-material’ goals, such as ‘purely political or

social motives’, that is where they do not seek to obtain any

financial or other material benefit.

Some states, such as Turkey, were strongly in favor of the UNTOC

covering terrorism. An earlier draft of the UNTOC listed ‘terrorist

acts’ as illustrative instances of transnational organized crime.16

However, this (along with other sample offences) was ultimately

omitted in favor of the general formulation referring to any serious

crime for profit. Terrorism was only residually mentioned in the

preamble which, as noted earlier, merely drew attention to its links

with organized crime and the need to take the UNTOC into account in

negotiations for a comprehensive UN terrorism convention.

The distinction between terrorism and transnational organized

crime is nonetheless slippery because of the absence of an

internationally accepted definition of terrorism and the diversity of

terrorist-type offences in treaties and under national law.

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Conceptually, terrorism may be distinguished from other organized

crime because it is typically motivated by political, religious or

ideological goals rather than financial or material ones. Thus, the UN

Declaration on Measures to Eliminate International Terrorism 1994, and

some national laws, define terrorism to include a political or similar

public-oriented motive element. In such cases, terrorism is committed

out of a political not profit motive and is thus outside the UNTOC.

On the other hand, some counter-terrorism instruments, such as

the Terrorist Financing Convention 1999, the Draft UN Comprehensive

Convention, and some national laws, do not require a political or

similar motive, and instead focus on violence intended to intimidate

the public or coerce a government or international organization. Such

approaches raise difficulties with regard to the UNTOC. Terrorist

groups may intimidate or coerce a target either for political reasons

or for profit such as by hijacking, hostage taking or kidnapping for

ransom. Whereas the immediate aim is intimidation or coercion, a

further ulterior intention may be the pursuit of politics or profit.

In such cases, close attention to the UNTOC definition is

necessary. An organized criminal group is one ‘acting with the aim of

committing one or more serious crimes… in order to obtain a financial

or other material benefit’. If the underlying serious terrorist

offence is itself defined by reference only to an intention to coerce

or intimidate, it is then necessary to consider whether such offence

was committed ‘to obtain a financial or other material benefit’. In

other words, three levels of intention become relevant: the intent to

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commit a violent act; a specific intent to coerce or intimidate; and

the UNTOC’s ulterior intent to profit.

Thus, During the drafting, the United States argued that the

requirement of a purpose to obtain a financial benefit is important,

as this aids in excluding crimes of terrorism.

Some states, such as Turkey, were strongly in favor of the UNTOC

covering terrorism. An earlier draft of the UNTOC listed ‘terrorist

acts’ as illustrative instances of transnational organized crime.

However, this was ultimately omitted in favor of the general

formulation referring to any serious crime for profit. Terrorism was

only residually mentioned in the preamble which, as noted earlier,

merely drew attention to its links with organized crime and the need

to take the UNTOC into account in negotiations for a comprehensive UN

terrorism convention.

The distinction between terrorism and transnational organized

crime is nonetheless slippery because of the absence of an

internationally accepted definition of terrorism and the diversity of

terrorist-type offences in treaties and under national law.

Conceptually, terrorism may be distinguished from other organized

crime because it is typically motivated by political, religious or

ideological goals rather than financial or material ones. Thus, the UN

Declaration on Measures to Eliminate International Terrorism 1994, and

some national laws, define terrorism to include a political or similar

public-oriented motive element. In such cases, terrorism is committed

out of a political not profit motive and is thus outside the UNTOC.
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On the other hand, some counter-terrorism instruments, such as

the Terrorist Financing Convention 1999, the Draft UN Comprehensive

Convention, and some national laws, do not require a political or

similar motive, and instead focus on violence intended to intimidate

the public or coerce a government or international organization. Such

approaches raise difficulties with regard to the UNTOC. Terrorist

groups may intimidate or coerce a target either for political reasons

or for profit such as by hijacking, hostage taking or kidnapping for

ransom. Whereas the immediate aim is intimidation or coercion, a

further ulterior intention may be the pursuit of politics or profit.

In such cases, close attention to the UNTOC definition is necessary.

An organized criminal group is one ‘acting… with the aim of committing

one or more serious crimes in order to obtain… a financial or other

material benefit’. If the underlying serious offence is itself defined

by reference only to an intention to coerce or intimidate, it is then

necessary to consider whether such offence was committed ‘to obtain a

financial or other material benefit’. In other words, three levels of

intention become relevant: the intent to commit a violent act; a

specific intent to coerce or intimidate; and the UNTOC’s ulterior

intent to profit. Thus, terrorist acts that coerce or intimidate for

profit are within the UNTOC, while those in pursuit of political or

similar convictions are not.

A third situation is where counter-terrorism treaties or national

laws simply target particular methods of violence, such as bombings or

attacks on civilian aircraft or ships, without specifying an

additional intention requirement whether coercion or intimidation, or

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a political or similar motive. Such acts will be covered by the UNTOC

only where they were committed for a financial or material benefit,

thus carving out purely political violence.

So far, the analysis has largely focused on ‘financial’ benefit.

The UNTOC alternatively refers to ‘other material benefit’. The

Interpretive Notes to the UNTOC indicate that ‘the words “in order to

obtain, directly or indirectly, a financial or other material benefit”

should be understood broadly, to include, for example, crimes in which

the predominant motivation may be sexual gratification’, such as

pedophile activities. UNODC’s Legislative Guide gives the further

example of sex trafficking. During the drafting, the USA favored the

UNTOC covering ‘non-political ends that have no pecuniary motive’, but

without expanding the convention too far into an all-encompassing

‘global serious crime instrument’. ‘Material benefit’ can thus include

non-monetary benefits of a personal nature. Recall, however, that the

drafters drew a red line at ‘purely political or social motives. The

UNTOC definition accordingly would not extend so far as to cover less

material or intangible terrorist motives such as political, religious,

ethnic or ideological benefits. On the other hand, it is arguable that

a ‘material benefit’ would result from a terrorist act that secures

the release of imprisoned terrorists (whether through a coercive

demand, or a physical gaol break).

The relationship between terrorism and transnational organized

crime can be summarized as follows. First, terrorist crimes that are

inherently for profit such as kidnapping, hostage taking or hijacking,

where for ransom can constitute transnational organized crime.

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Secondly, terrorist groups that commit serious (non-terrorist) crimes

for profit (such as drug trafficking, money laundering, or illicit

trafficking in human beings, cultural property or natural resources)

can also come within the UNTOC, even if they are committed for a

further ulterior motive of enabling subsequent terrorist acts.

Thirdly, terrorist crimes that are not-for-profit but instead pursue a

purely political or similar motive are outside the UNTOC. Fourthly,

where terrorist offences are defined by reference to a coercive or

intimidatory intent, such offences will come within the UNTOC where

they are specifically intended to obtain a financial benefit.

UNTOC Offences

Where terrorist offences or other serious crimes by terrorist

groups come within the UNTOC, a number of legal consequences are

particularly significant. The UNTOC requires states parties to

criminalize participation in an organized criminal group (Article 5),

laundering of the proceeds of crime (Article 6), and corruption

involving public officials (Article 8). States parties must also

combat money laundering (Article 7). Three protocols to the UNTOC are

triggered by its definition of transnational organized crime and

address human trafficking, migrant smuggling, and illicit manufacture

and trafficking in firearms, discussed below.

Participation in an Organized Criminal Group

Given the analysis of the definition above, the UNTOC offences

are likely to result in significant overreach as they apply to

terrorist groups. As mentioned earlier, an organized criminal group is

one which aims to commit ‘one or more serious crimes’ for financial
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benefit. Thus, even if the dominant aim of the group is to obtain non-

financial, political benefits, it may still be an ‘organized criminal

group’ where it has ‘the aim’ to profit from one or more crimes.

Consequently, the UNTOC may require states to criminalized

participation in groups that are mainly devoted to political terrorism

and that only occasionally or incidentally commit crimes for profit.

The UNTOC does not well differentiate between groups with mixed

motives, depending on whether their aims are predominantly

financial/private or political/public. This conceptual ambiguity blurs

the bright line, intended by the drafters, between political terrorism

and profit-oriented transnational organized crime.

Money Laundering

Under Article 6 of the UNTOC, money laundering is essentially the

concealment or disguise of property that a person knows is the

proceeds of a predicate crime. Data on the relationship between money

laundering and terrorism is notoriously scarce. One of the most widely

quoted sources, albeit somewhat dated, estimates that money laundering

related to terrorist crimes was valued at USD500 million in 2002,

though this accounted for only 0.3 per cent of the global total of

USD193 billion in crime-related money laundering.

Money laundering relates to terrorism and terrorist financing in

a number of ways. Terrorist offences are typically serious offences

under national law within the UNTOC definition and thus will often

qualify as predicate offences to money laundering under Article 6(2)

of the UNTOC. For example, concealing ‘dirty’ funds that are the
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proceeds of a terrorist offence, such as kidnapping for ransom, may

amount to money laundering.

In addition, terrorist groups may launder the proceeds of their

non-terrorist crimes, such as illicit trafficking in drugs, goods,

cultural property, natural resources, or human beings. These are more

common forms of funding terrorism than laundering the proceeds of

terrorist crimes as such. Other common crimes committed by terrorists

include bank robberies, smuggling of goods including cigarettes,

credit card fraud, insurance and loan fraud, and tax crimes.

The PKK in Turkey, for example, has reportedly carried out money

laundering through ‘drug-for-money exchanges’, thereafter laundered by

buying real estate. Hezbollah was allegedly linked to drug trafficking

and money laundering through US car sales and Asian consumer goods.

Money laundered through car sales in Africa was routed to terrorist

groups.

Gold mined illegally by a terrorist group in Colombia was

laundered through sales to legal businesses and reinvested in

terrorist activities.

Terrorist Financing Distinguished from Money Laundering

Concealing or disguising the ‘clean’ money of a terrorist group –

that is, funds raised from legitimate sources – does not amount to

money laundering. Legitimate sources could include, for instance,

lawful businesses or charitable donations. Further, there is no money

laundering where funds are not concealed or disguised at all, as where

funds (whether legally or illegally obtained) are openly given to

terrorist groups or to perpetrate terrorism, or where a terrorist

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group (such as the Islamic State) administers its own financial system

in territory it controls.

Terrorist financing laws aim to plug these gaps. Terrorist

financing is defined in the Terrorist Financing Convention 1999 as the

unlawful and willful provision or collection of funds, directly or

indirectly, with the intention or knowledge that they be used to

finance a terrorist act. It also an offence to attempt to finance

terrorism, to participate as an accomplice in an offence, to organize

or direct others to commit an offence, or to contribute to the

commission of an offence by a group acting with a common purpose. UN

Security Council resolution 1373 effectively ‘universalizes’ the

substance of the Convention by requiring all states to suppress

terrorist financing under domestic law. Whereas money laundering

focuses on the unlawful source of funds in the past, terrorist

financing focuses on the future intended unlawful use of funds to

commit terrorism. Financing offences also cover funds from lawful or

unlawful sources, unlike money laundering (which requires a predicate

offence), hence the need for special laws. Since the focus of

financing offences is on the intended use of funds, the actual attempt

or commission of a terrorist act is not essential, nor is the

identification of a specific terrorist act.

The Financial Action Task Force’s (FATF) Special Recommendations

on terrorist financing further urge that financing offences extend

beyond terrorist acts to the financing of terrorists and terrorist

organizations.
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Recommendations further encourage states to focus on common or

high-risk methods of terrorist financing, including informal

remittances, wire money transfers, non-profit organizations (including

charities) and cash couriers. More recently, concerns have been

expressed about new financing methods, including through social media

(even including ‘crowd-funding’), new payment products and services

(such as virtual currencies, prepaid cards, and internet-based payment

services), and the exploitation of natural resources.

Importantly, the techniques used to launder money and finance

terrorism are often the same. As such, the General Assembly, Security

Council and FATF encourage states to combat terrorist financing by

applying both the general money laundering standards and the more

specific terrorist financing standards. The Security Council has also

imposed situation-specific financial sanctions on various terrorist

groups, particularly Al Qaeda and those associated with them,

including the Taliban. While these are outside the scope of this

article, it is notable that the Council has given particular attention

to Islamic State in the Levant (ISIL), whose complex financial

arrangements illustrate the mixing of money laundering and financing

techniques. While ISIL raises much of its revenue internally for

instance, through ‘taxation’, illicit trade in oil or cultural

antiquities, and kidnapping for ransom, it requires money laundering

to facilitate donations from foreign benefactors including via the

internet and sell its products internationally. New money laundering

practices, such as integrating stolen agricultural produce with

existing agricultural businesses, are used alongside more traditional

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methods, such as the exploitation of natural resources and kidnappings

for ransom.

It also recommends that terrorist financing offences are

themselves designated as money laundering predicate offences, such

that concealing or disguising the giving of money for terrorism would

constitute money laundering. The Special Recommendations further

encourage states to focus on common or high-risk methods of terrorist

financing, including informal remittances, wire money transfers, non-

profit organizations including charities and cash couriers. More

recently, concerns have been expressed about new financing methods,

including through social media even including ‘crowd-funding’, new

payment products and services such as virtual currencies, prepaid

cards, and internet-based payment services, and the exploitation of

natural resources.

Importantly, the techniques used to launder money and finance

terrorism are often the same. As such, the General Assembly, Security

Council and FATF encourage states to combat terrorist financing by

applying both the general money laundering standards and the more

specific terrorist financing standards.

The Security Council has also imposed situation-specific

financial sanctions on various terrorist groups, particularly Al Qaeda

and those associated with them, including the Taliban. While these are

outside the scope of this article, it is notable that the Council has

given particular attention to Islamic State in the Levant (ISIL),

whose complex financial arrangements illustrate the mixing of money

laundering and financing techniques. While ISIL raises much of its

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revenue internally for instance, through ‘taxation’, illicit trade in

oil or cultural antiquities, and kidnapping for ransom, it requires

money laundering to facilitate donations from foreign benefactors

including via the internet and sell its products internationally. New

money laundering practices, such as integrating stolen agricultural

produce with existing agricultural businesses, are used alongside more

traditional methods, such as the exploitation of natural resources and

kidnappings for ransom.

Corruption

Article 8 of the UNTOC requires states parties to criminalize

corruption involving public officials, in the form of a bribery

offence. The UN Convention against Corruption 2003 (UNCAC) similarly

requires states to criminalize bribery, not only of national public

officials but also of foreign and international public officials.

UNCAC further requires states to criminalize a wider range of corrupt

conduct.

Former UN Secretary General Kofi Annan observed that corruption

allows terrorism to flourish. Corruption can relate to terrorism in a

number of ways. First, terrorists may bribe public officials including

police, justice and military personnel, and civil servants and

politicians to overlook their illegal and/or terrorist activities.

This not only enables terrorists to enjoy impunity and deprives

victims of justice, but corrodes the integrity of legal systems. The

related risk of terrorist financing is also thought to be higher in

corrupt states.
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Secondly, corrupt public officials may divert military equipment

or humanitarian relief to terrorist groups, and thus support or

facilitate their activities. For example, weapons legally supplied to

the Iraqi government by the United States were sold on the black

market by Iraqi military personnel and ended up in the hands of ISIL.

Similarly, a Somali official was found to have diverted army weapons

to Al Shabaab.

Thirdly, in a related fashion, terrorist groups may bribe private

companies, for instance, not to report suspicious transactions to

regulators, or to transport weapons in a trucking business. Terrorists

sympathizers may also infiltrate businesses and embezzle funds.

Fourthly, public officials may take bribes from corporate

intermediaries, such as arms dealers, financial entities, or mining

companies, who themselves deal with terrorists. For instance, corrupt

military or government personnel in Venezuela, Ecuador and Peru have

made unauthorized sales of surplus military weapons to international

arms dealers, who then illegally trafficked weapons on the black

market to armed groups such as FARC and ELN.

Finally, endemic corruption can undermine public support for, and

the legitimacy of, a government, and fuel support for armed opposition

groups. The Taliban, for example, has sometimes drawn popular support

from civilian dissatisfaction with government corruption and its own

strict punishment of corruption.

Human Trafficking Protocol

Article 3(a) of the UNTOC Protocol to Prevent, Suppress and

Punish Trafficking in Persons, Especially Women and Children defines

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trafficking as the: recruitment, transportation, transfer, harboring

or receipt of persons, by means of the threat or use of force or other

forms of coercion, of abduction, of fraud, of deception, of the abuse

of power of a position of vulnerability or of the giving or receiving

of payments or benefits to achieve the consent of a person having

control over another person, for the purpose of exploitation.

Exploitation is defined in turn as, at a minimum, the

exploitation of the prostitution of others or other forms of sexual

exploitation, forced labor or services, slavery or practices similar

to slavery, servitude or the removal of organs. The ILO estimates that

there are 21 million victims of trafficking and slavery worldwide, of

whom 19 million are exploited by private individuals or enterprises

and 2 million are exploited by states or rebel groups. Sexual

exploitation and forced labor are the most common forms.

Links between human trafficking and terrorism are difficult to

identify because of the clandestine nature of both crimes. Human

trafficking may be attractive to terrorists for three reasons: it can

generate revenue, supply fighters, and intimidate enemy populations.

In practice there is some evidence of human trafficking by terrorist

groups. For example, the Taliban in Afghanistan abducted women and

girls for forced marriage, sexual slavery in brothels, use as

concubines by officers, domestic servitude, or sale into sexual

slavery in Arab countries. Boko Haram in Nigeria has abducted over

2,000 people, including kidnapping young girls and forcing them into

marriage, domestic servitude, labor, or sexual slavery. Maoists in

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Nepal allegedly benefited financially from existing cross-border

trafficking of girls into Indian brothels.

Further, many terrorist groups have also forcibly recruited

children, including the PKK in Turkey, LTTE in Sri Lanka, Al Shabaab

in Somalia including at schools, and Boko Haram in Nigeria. In

addition, refugees and internally displaced persons can also be

vulnerable to trafficking,58 particularly where strict border controls

and immigration laws impede their ability to find safety through

regular channels and people remain vulnerable to armed groups.

The Security Council has also condemned human trafficking by

terrorist groups such as ISIL, Boko Haram and the Lord’s Resistance

Army. The Council has noted that trafficking undermines the rule of

law and contributes to other transnational organized crimes. It has

also emphasized that the Human Trafficking Protocol provides an

effective framework to combat it and urged states improve

ratification, implementation, prevention and enforcement, including

through international cooperation and victim assistance. Like most

transnational crime treaties, however, the Protocol does not impose

binding obligations directly on terrorist groups, but relies on state

regulation of their activities – which may be ineffective in practice

where such groups are mounting armed insurgencies against the state’s

authority. This contrasts with the approach of IHL, which seeks to

directly regulate organized armed groups.

The Security Council has further noted that human trafficking may

constitute a war crime in armed conflict. In this regard, the

International Commission of Inquiry on Syria has likewise concluded

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that trafficking by ISIL amounts to war crimes or crimes against

humanity, including rape, sexual slavery, sexual violence, and

recruiting and using children in hostilities. The Commission has

documented extensive trafficking by ISIL, particularly for sexual

slavery and other violence, forced marriage, forced pregnancy, and

forced recruitment of children; and often targeting minority

communities such as Yazidis as well as children. Foreign ‘jihadi

brides’ have been groomed or lured into travelling to ISIL areas and

exploited there for sex, marriage, and even suicide bombing.

Migrant Smuggling Protocol

The UNTOC Protocol against the Smuggling of Migrants by Land, Sea

and Air ‘Migrant Smuggling Protocol’ defines the smuggling of migrants

as the ‘procurement, in order to obtain, directly or indirectly, a

financial or other material benefit, of the illegal entry of a person

into a State Party of which the person is not a national or a

permanent residents. Unlike human trafficking, migrant smuggling often

involves consent or voluntariness by the person smuggled, who

typically pays the smuggler for travel. Like trafficking, however, it

can often result in harm to or exploitation of the victim.

The evidence of links between terrorism and migrant smuggling is

scarce, although a number of countries have expressed concern about

it. It is important not to draw unwarranted linkages between irregular

migration and terrorist threats. In principle, however, there are at

least three situations in which terrorists may be involved in this

crime.
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First, commercial smuggling operations could be a source of funds

for a terrorist group, although it would seem that there are more

profitable, and less risky, ways for such groups to raise money such

as drug trafficking in world of increasingly stringent border

controls. Such funds derive either from terrorist groups directly

arranging smuggling themselves, or from such groups taxing the

smuggling operations of others.

Secondly, terrorists could utilize smuggling networks as a means

of moving their own personnel. For example, a suspected terrorist may

seek to escape justice in his or her own country by paying a smuggler

to cross a border, in order to find safe haven elsewhere.

Alternatively, a terrorist group may wish to circumvent border

controls to send an operative abroad, by utilizing smuggling routes

whether to carry out missions, gather intelligence, create a ‘sleeper’

cell, or conduct economic or criminal activities. A smuggling network

on the Syria-Iraq border was reportedly used to provide logistical

support to Al Qaida, including passports, weapons, money, guides and

safe houses for foreigners trying to enter Iraq.

Thirdly, perhaps the strongest known link is that terrorist

groups have relied upon migrant smugglers to obtain stolen, blank,

false or forged documents including fake passports. The production of

such items requires special expertise which terrorist groups may not

possess.

The Migrant Smuggling Protocol requires states parties to

criminalize the smuggling of migrants; false documentation for

smuggling; and enabling illegal residency. States must also regard

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offences as aggravated where they endanger, or are likely to endanger,

the lives or safety of migrants, or entail inhuman or degrading

treatment, including for exploitation. Again, the Protocol does not

bind terrorist groups directly but depends on state regulation,

limiting its effectiveness where such groups are outside a state’s

practical authority.

Illicit Manufacture and Trafficking of Firearms

The UNTOC Protocol on Illicit Trafficking in Firearms 2001

‘Firearms Protocol’ aims to promote, facilitate and strengthen

cooperation among states to prevent, combat and eradicate the illicit

manufacturing of and trafficking in firearms, their parts and

components and ammunition (Article 2). It does not apply to state-to-

state transactions or state transfers for national security and

consistent with the UN Charter (Article 4). It is also limited to

firearms and does not cover larger military grade weapons used in

terrorist insurgencies.

Terrorist organizations evidently rely on a supply of weapons to

carry out their attacks. Firearms are amongst the most common weapon

used, and the most readily available. They are also unregulated by the

existing sectoral counter-terrorism treaties. While terrorists often

use lawfully obtained firearms – particularly in states without strict

controls – illicit production and traffic in firearms accounts for a

significant portion of terrorists’ arsenals.

This is particularly the case in protracted armed conflicts,

where terrorist groups may possess large weapons stocks and need to

maintain or increase them over time. Terrorist groups known to have

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illegally obtained weapons include, for example, the LTTE, Al Qaeda,

FARC, and Palestinian groups. The large number of weapons in conflicts

can also stimulate cross-border arms trafficking to neighboring

countries, including post-conflict. For example, after the Balkan

conflict in the 1990s, it was estimated that there were 900,000

illicit firearms in Serbia, 750,000 in Bosnia, and 750,000 in Albania.

The complexity of arms trafficking involving terrorist groups is

illustrated by FARC in Colombia. FARC buys firearmssuch as AK-47s,

rifles and shotguns both on the ‘grey’ and ‘black’ markets, including

by using the profits of its drug trafficking, or paying for arms with

drugs. In the black market, the whole transaction – the sale,

distribution, and final destination – is illegal, because it involves

unauthorized actors or channels. On the international black market,

FARC has obtained arms from Latin American state officials illegally

transferring military stocks; stocks remaindered after conflicts in

Central America; and from arms made in factories in post-Cold War

Eastern Europe and Central Asia. FARC has occasionally also obtained

arms on the domestic black market, from local traffickers connected to

international traffickers, or from corrupt security or corporate

personnel.

In contrast, on the grey market, the initial sale and

distribution is done through legal channels, by an authorized state or

private actor, but the final destination is an illegal actor. Grey

market sales to FARC have come from the diversion of surplus foreign

state military weapons by corrupt foreign state officials in Latin

America, working through illegal trafficker intermediaries, as well as

 24

movements of arms from the United States domestic private market,

often using false identification documents.

The Firearms Protocol requires states parties to criminalize the

illicit manufacturing or trafficking of firearms, and the falsifying

of the markings on firearms (Article 5). It relies on vertical

regulation by states suppressing traffickers and does not directly

bind terrorist groups as such. In contrast, certain other processes

seek to directly engage with armed groups to limit certain weapons or

methods of violence, as in efforts by the NGO Geneva Call to

cooperatively destroy anti-personnel land mines or suppress gender

violence with the consent of certain armed groups. IHL also

specifically limits or prohibits certain weapons, including those

causing unnecessary suffering or superfluous injury.

Illicit Drug Trafficking

Numerous General Assembly resolutions since the late 1980s have

expressed alarm at ‘the growing connection between drug trafficking

and terrorism’ in combating crimes that might be connected with

terrorism, including drug trafficking in all its The UN Global

Counter-Terrorism Strategy 2006 resolves to strengthen inter-state

coordination and cooperation ‘in combating crimes that might be

connected with terrorism, including drug trafficking in all its

‘aspects’. The Security Council has also been concerned at the ‘close

connection’ between international terrorism and illicit drugs of all

transnational crimes related to terrorism, the links with illicit

drugs are the strongest. Terrorism and drug trafficking can relate in

a number of ways. Occasionally, terrorist groups directly produce or

 25

traffic drugs themselves. More commonly, terrorist groups may generate

revenue by taxing illicit drug production, transport or distribution

by others, as in South-West and South-East Asia and the Andean region.

Terrorist groups may protect this revenue base by also providing

protection for drug facilities, producers, and traffickers. By way of

a sophisticated example, the Taliban in Afghanistan imposed a 10 per

cent tax on poppy farmers’; taxed the small traders who received opium

paste from the farmers; imposed a per-kilo transit tariff on truckers

transporting drugs; took protection money for securing the labs that

made opium paste into heroin; and received regular central payments

from large drug trafficking organizations. In addition, Taliban

fighters supplemented their income by working in the poppy fields at

harvest time.

Terrorist groups have also used illicit drugs as a currency, as

in the Madrid train bombings in 2004, where drugs were swapped and

sold for explosives and a known drug trafficker was convicted in

Morocco for involvement in the bombings. In another example, a

Honduran prisoner arranged to exchange weapons for cocaine from FARC.

The Taliban maintained ‘opium warehouses across Afghanistan’s southern

poppy heartland where Taliban commanders can deposit and later

withdraw quantities of the drug as if using an ATM’, and used it to

purchase other supplies and commodities.

Groups thought to have been involved in drug trafficking include

FARC in Colombia, Shining Path in Peru, rebel armies in Shan State of

Myanmar, the PKK in Turkey, the Taliban in Afghanistan and Pakistan,

Al Qaeda in the Islamic Maghreb, the LTTE in Sri Lanka, the IRA in
 26

Northern Ireland, insurgents in Chechnya and Uzbekistan, and Hezbollah

in Lebanon. Some groups rely heavily on drug revenue, with the PKK

earning an estimated USD200 million annually from heroin trafficking,

and the Taliban around USD125 million and urged states to ratify the

illicit drugs conventions.

It has also identified links in particular countries, such as

opium cultivation, production and trafficking in Afghanistan, which

harm security, development and governance and are a means of finance

or support for Al Qaeda and the Taliban. Of all transnational crimes

related to terrorism, the links with illicit drugs are the strongest.

Terrorism and drug trafficking can relate in a number of ways.

Occasionally, terrorist groups directly produce or traffic drugs

themselves. More commonly, terrorist groups may generate revenue by

taxing illicit drug production, transport or distribution by others,

as in South-West and South-East Asia and the Andean region. Terrorist

groups may protect this revenue base by also providing protection for

drug facilities, producers, and traffickers.

By way of a sophisticated example, the Taliban in Afghanistan

imposed a 10 per cent tax on poppy farmers’; taxed the small traders

who received opium paste from the farmers; imposed a per-kilo transit

tariff on truckers transporting drugs; took protection money for

securing the labs that made opium paste into heroin; and received

regular central payments from large drug trafficking organizations. In

addition, Taliban fighters supplemented their income by working in the

poppy fields at harvest time.

 27

Terrorist groups have also used illicit drugs as a currency, as

in the Madrid train bombings in 2004, where drugs were swapped and

sold for explosives and a known drug trafficker was convicted in

Morocco for involvement in the bombings. In another example, a

Honduran prisoner arranged to exchange weapons for cocaine from FARC.

The Taliban maintained ‘opium warehouses across Afghanistan’s southern

poppy heartland where Taliban commanders can deposit and later

withdraw quantities of the drug as if using an ATM’, and used it to

purchase other supplies and commodities.

Groups thought to have been involved in drug trafficking include

FARC in Colombia, Shining Path in Peru, rebel armies in Shan State of

Myanmar, the PKK in Turkey, the Taliban in Afghanistan and Pakistan,

Al Qaeda in the Islamic Maghreb, the LTTE in Sri Lanka, the IRA in

Northern Ireland, insurgents in Chechnya and Uzbekistan, and Hezbollah

in Lebanon. Some groups rely heavily on drug revenue, with the PKK

earning an estimated USD200 million annually from heroin trafficking,

and the Taliban around USD125 million.

Revenue from drug trafficking may be used by terrorist groups to

buy weapons, pay bribes, fund propaganda and recruitment, and sustain

operations and networks. It has increased in importance as state

sponsorship of terrorist groups has declined. It can help to

regenerate terrorist groups, as when Shining Path revived in Peru from

2006, after being largely dismantled in the 1990s. Terrorist groups

originally inspired by political, religious or ideological aims may

transform over time into organized criminal groups focusing on drug

trafficking, after being captured by a trade initially used to finance

 28

their political goals. Conversely, over time drug cartels may seek to

violently exert political influence.

Terrorist involvement in drug trafficking can also help to

sustain and protect drug production more generally. In Colombia and

Afghanistan, for instance, there is a correlation between the presence

of armed groups and areas of drug production. It can also stimulate

additional violence, such as against rival traffickers, state

officials and the public; or against rival armed groups. In addition,

drug cartels may resort to terrorist tactics, as in Latin America.

The links between terrorism and drug trafficking may involve many

jurisdictions, following the complex routes of supply, transport and

distribution. A Malian national, for instance, was convicted in the US

in 2011 for material support for terrorism, for transporting cocaine

through West and North Africa with the intent to supply Al Qaeda and

FARC. The drugs involved can be ‘hard’ such as opium, heroin or

cocaine or ‘soft’ such as hashish or cigarettes. The Real IRA, PKK,

Hezbollah, and Islamist groups, for example, have reportedly been

involved in taxing or conducting cross-border cigarette smuggling.

Illicit drugs are controlled by three key treaties: The Single

Convention on Narcotic Drugs 1961, the Convention on Psychotropic

Substances 1971, and the UN Convention against Illicit Traffic in

Narcotic Drugs and Psychotropic Substances 1988. The conventions

address the key links in the illicit drug supply chain: production,

transportation, and distribution. The 1988 Convention additionally

targets activities further down the supply chain, namely the

manufacture, transport, distribution or possession of equipment,

 29

materials and precursor substances used in illicit drug production and

supply. It also makes it an offence to organize, manage or finance

supply and to launder the proceeds of crime. If further criminalizes

the possession, purchase or cultivation of illicit drugs for personal

consumption.

The illicit drugs treaties do not specifically address terrorist

organizations. However, the 1988 Convention identifies aggravating

factors for the purpose of punishment, including the involvement of an

organized criminal group, the offender’s involvement in other

organized transnational crime or other illegal activities related to

the drug offence, and the use of violence or arms.

Criminal enforcement will often be practically difficult where

terrorist groups are engaged in armed conflicts and may thus be

outside the regular effective law enforcement capacity of the state

authorities. In some cases, as in Afghanistan, states have taken

military action directly against drug crops and facilities, in view of

their financial importance to the Taliban, in 2009, NATO ordered the

International Security Assistance Force in Afghanistan to target drug

traffickers and labs where they provided ‘material support’ to the

Taliban. Such targeting may, however, raise legal questions where such

targets are not strictly military objectives under IHL.

Illicit Trafficking in Cultural Property

A number of terrorist groups have destroyed or damaged cultural

property in a deliberate tactic to terrorize or demoralize sectarian

adversaries or civilian populations. Terrorist groups have also

opportunistically stolen and sold cultural property for profit. So-

 30

called ‘cultural terrorism’ has been a feature of contemporary

conflicts. In Mali in 2012, fundamentalist religious militants

destroyed around 40,000 ancient manuscripts and 16 Sufi mausoleums.

The Taliban in Afghanistan notoriously blew up the Bamiyan Buddha

statutes.

On a larger scale, ISIL has destroyed cultural property in Syria,

Iraq and Libya, including mosques, shrines, tombs, churches,

monasteries, museums and ancient ruins. Its targets have included

Shiites, Sufis, Assyrians, Chaldeans, Armenians, and Yazidis. It

seriously damaged the World Heritage Site of ancient Palmyra. It has

also taxed the looting and smuggling of artifacts and dealt directly

in stolen and fake antiquities. Its destruction of cultural heritage

has been condemned by the Security Council, which also required all

states to prevent and prohibit the cross-border trade in Iraqi and

Syrian cultural property. Profits from illicit trafficking in cultural

property can also be covered by counter-terrorism sanctions.

Armed Conflict

In international armed conflict, IHL prohibits attacks on

historic monuments, works of art or places of worship ‘which

constitute the cultural or spiritual heritage of peoples. Such objects

must also not be used in support of the war effort, such as by

locating military objectives there in order to deter enemy attacks.

Attacking cultural property is also a war crime where it enjoys

special protection, extensive destruction is caused, and the property

was not used for military purposes or near a military objective.

Criminal controls are weaker, however, in non-international armed

 31

conflict, although as mentioned below, there is growing recognition of

the need to strengthen protection. Cultural property is also subject

to the general protections against the pillage or looting of property

under IHL, which constitute war crimes.

A supplementary treaty, the Hague Convention for the Protection

of Cultural Property in the Event of Armed Conflict 1954, applies to

both international and non-international conflicts and establishes a

system of ‘basic’ and ‘special’ protection for cultural property,

depending on its significance. Cultural property is extensively

defined. Among other things, states must protect cultural property

from theft, misappropriation, vandalism, requisitioning, or reprisals.

‘Enhanced’ protection is provided under a 1999 Protocol to the

Convention for ‘cultural heritage of the greatest importance for

humanity’. Occupying powers must prohibit any illicit export, removal

or transfer of ownership of cultural property; archaeological

excavations; or alterations to property intended to conceal its

heritage value.

Peacetime

A number of treaties applicable in peacetime can also apply when

cultural property stolen in armed conflict is subsequently trafficked

out of the conflict zone to foreign buyers or intermediaries. The

UNESCO Convention on the Means of Prohibiting and Preventing the

Illicit Import, Export and Transfer of Ownership of Cultural Property

1970 aims to suppress trafficking in cultural property. It applies in

both peace and war and thereby complements IHL protections. Article 1

expansively defines cultural property to include ‘means property

 32

which, on religious or secular grounds, is specifically designated by

each State as being of importance for archaeology, prehistory,

history, literature, art or science’ and belonging to stipulated

categories.

Under the UNESCO Convention, States must prohibit the illicit

import, export or transfer of ownership of cultural property.

Exporting states must certify that property is authorized for export,

and prohibit the import of illegally exported or stolen property.

Illegally imported property must be recovered and returned, and

innocent purchasers or owners compensated. Dealers must also keep

registers detailing supplies and sales. Penalties must be imposed for

infringements. States must also cooperate, including to control

import/export against pillage.

A second, complementary treaty, the UNIDROIT Convention on Stolen

or Illegally Exported Cultural Objects 1995, does not establish

offences but addresses the restitution of stolen cultural objects and

the return of objects removed from a state contrary to its export

laws.

Armed Conflict

IHL prohibits the militarily unnecessary destruction or

confiscation of public or private property; as well as the pillage of

public or private property. Pillage is also a war crime. In

international conflicts the immovable public property of occupied

territory must be held on trust for the benefit of the local

inhabitants, and its capital safeguarded. The occupying power cannot

appropriate, acquire title to, or sell such public assets, or use it

 33

to benefit its own economy. It may only utilize the proceeds for the

benefit of the local inhabitants. Immovable public property may be

destroyed or seized only where required by imperative military

necessity.

In non-international conflicts, domestic law primarily governs

the lawfulness of public resource exploitation by private actors.

While exploitation by terrorist groups will almost certainly be

illegal, national law enforcement will often be ineffective in the

face of armed challenges to the state’s authority by terrorist groups.

There is no general transnational crime of illicitly trading in

natural resources. Occasionally, the Security Council has stepped into

the breach to address the problem, though this is a piecemeal

solution.

For example, starting in 1998, the Council imposed sanctions to

prohibit the import of conflict diamonds from Angola, Sierra Leone and

Liberia, and endorsed the Kimberley Process Certification Scheme. IHL

also provides some protection for the natural environment. There is no

absolute prohibition on damaging the environment but it is prohibited

to employ methods of means of warfare which are intended, or may be

expected, to cause widespread, long-term and severe damage to the

natural environment, including where it would prejudice the health or

the survival of the population. This is also a war crime in

international armed conflict, but not in non-international conflicts.

As such, environmental damage by non-state actors is left to domestic

law, which is likely to be ineffective or unenforceable during

conflict. There is also an obligation on states to take care in

 34

warfare to protect the environment against such damage. In addition,

the environment is subject to the general IHL rules on distinction,

proportionality, precautions, and the protection of civilian objects

and property and later imposed it on Liberia. It also banned timber

exports from Liberia in 2003 and charcoal exports from Somalia in

2012.

In 2015, it condemned the illicit oil trade by Islamic State, Al

Nusra Front and other Al Qaeda associates in Syria and Iraq as

violations of sanctions and financing regimes and required states to

report on any interdiction of oil products.

The IHL rules on the protection of the environment set a high

threshold which will be difficult to meet in most cases: environmental

damage must be cumulatively widespread, long-term and severe. A

special treaty additionally prevents the deliberate modification of

the environment as a means of warfare. The relevant obligations fall

primarily on states and direct controls on non-state armed terrorist

groups are weak.

Kidnapping for Ransom

The UN Security Council has repeatedly condemned kidnapping for

ransom and expressed concern that ‘ransom payments to terrorist groups

are one of the sources of income which supports their recruitment

efforts, strengthens their operational capability to organize and

carry out terrorist attacks, and incentivizes future incidents of

kidnapping for ransom’. A number of terrorist groups have raised

substantial funds in this way, including Abu Sayyaf in the

 35

Philippines, the Movement for Unity and Jihad in West Africa (MUJAO),

Boko Haram and Ansaru in Nigeria, and Al-Qaida in the Islamic Maghreb

(AQIM).

Armed Conflict

IHL prohibits and criminalizes hostage taking in armed conflict,

whether by state forces or non-state armed groups. While IHL treaties

themselves do not define hostage taking, the Elements of Crimes of the

Rome Statute of the International Criminal Court, in defining the war

crime of hostage taking, essentially follows the approach of the

Hostages Convention 1979 in requiring an intent ‘to compel a State, an

international organization, a natural or legal person or a group of

persons to act or refrain from acting as an explicit or implicit

condition for the safety or the release of such person or persons’.

Hostage taking in armed conflict thus encompasses both political

coercion as well as compulsion for financial gain

CONCLUSION

Some terrorist acts, and other criminal activities by terrorist

groups, can be prosecuted as various forms of transnational crime. The

UNTOC can target profit-oriented transnational organized crimes by

terrorist groups, including armed robbery, kidnapping for ransom,

money laundering, corruption, and participation in an organized

criminal group involved in such activities. The UNTOC’s three

Protocols can additionally address terrorist groups involved in human

trafficking, migrant smuggling, and illicit trafficking in firearms.

 36

Beyond the UNTOC framework, other frameworks relevant to

suppressing the transnational criminal activities of terrorist groups

include those addressing drug trafficking, illicit trafficking in

cultural property, illicit exploitation of natural resources and

environmental crimes, and kidnapping for ransom. IHL, including war

crimes liabilities, additionally regulates certain of these activities

in armed conflict. Overall the weakest criminal controls, both in

peace and war, relate to the exploitation of natural resources and

damage to the environment. In addition, in armed conflict, controls

are sometimes weaker in non-international conflicts than in

international ones, despite growing regulatory convergence.

Further, most of the above frameworks criminalized the conduct of

individuals and do not generally target terrorist groups as such. Only

the UNTOC, coupled with situation-specific Security Council sanctions,

target groups as such. Moreover, most of the frameworks foremost

impose obligations on states to suppress harmful or criminal conduct,

but this approach is often ineffective in practice where non-state

armed groups have effectively challenged and displaced the state’s

authority over parts of its territory. Foreign states may, however, be

able to suppress transnational crimes by terrorist actors who cross

their borders. Obligations are rarely imposed directly on terrorist

groups as groups, except under IHL.

Organized criminal activities by terrorist groups can be

substantially targeted and repressed under the UNTOC, its Protocols,

and other transnational crime frameworks. Nonetheless, as is typical

of approaches to regulating terrorism generally, these frameworks tend

 37

to apply in an ad hoc and piecemeal fashion, without necessarily being

adapted to the special challenges presented by terrorist actors.

Inevitably this is a consequence of political realities as well as the

law often being on the back foot and playing ‘catch up’ to new social

developments.

The problem is accentuated by the conceptual confusion at the

heart of the vague distinctions between terrorism and transnational

organized crime, which result from a combination of the UNTOC

definition and the multiplicity of different approaches to defining

terrorist offences in various instruments. While a more systematic

approach may be desirable in principle, teasing out the various

existing legal connections between terrorism and transnational

organized crime can also help to clarify legal liabilities and point

to future directions for reform.

 38

REFERENCES

Ben Saul (2017). The legal relationship between Terrorism and

Transnational Crime. Retrieved November 5, 2019 from

http://ssrn.com/abstract=2962832

Fatih Varsuvas (2015). The problem Faced Fighting against Organized

Crimes and the Role and Effectiveness of Law Enforcement

Training. Retrieved November 4, 2019 from

https://rucore.libraries.rutgers.edu

John Rollins, Liana Sun Wyler (2013). Terrorism and Transnational

Crime: Foreign Policy Issues for Congress.

Retrieved November 4, 2019 from https://fas.org.crs/R41004