{"id":4327,"date":"2019-04-15T12:07:41","date_gmt":"2019-04-15T16:07:41","guid":{"rendered":"https:\/\/charityandsecurity.org\/?p=4327"},"modified":"2020-09-08T13:01:12","modified_gmt":"2020-09-08T17:01:12","slug":"summary_unscr_2462","status":"publish","type":"post","link":"https:\/\/charityandsecurity.org\/humanitarian-safeguards\/summary_unscr_2462\/","title":{"rendered":"Summary of UN Security Council Resolution 2462 on Counter Terrorist Financing"},"content":{"rendered":"
The UN Security Council unanimously passed\u00a0Resolution 2462<\/a><\/strong>\u00a0to \u201cCombat, Criminalize Financing of Terrorists, Their Activities\u201d on March 28, 2019. It is binding on all member states and can be enforced by UN sanctions. Sponsored by France, Resolution 2462 is the results of\u00a0intense behind-the-scenes negotiations<\/a><\/strong>, including efforts by civil society to include clear safeguards for humanitarian and peacebuilding activities as well as cautions against further bank derisking of nonprofit organizations (NPOs). It is the first comprehensive UN resolution on countering financing of terrorism (CFT), incorporating a patchwork of previous resolutions and broadening CFT efforts to address new threats and improve investigation and enforcement activities.\u00a0 Notably, Resolution 2462 requires member states to take international humanitarian (IHL), human rights law (IHRL) and refugee (IRL) law into account and make CFT efforts consistent with these existing legal obligations. These safeguards, which are weaker than what civil society proposed, will require civil society engagement at both the UN and member state level to build understanding of what IHL, IHRL and IRL require and advocate for appropriate implementation. This engagement will be a major factor in how Resolution 2462 impacts civil society, as there are no clear enforcement mechanisms for violations of these human rights and humanitarian standards.<\/p>\n<\/div> Resolution 2462 Summary and Analysis<\/a><\/p>\n<\/div><\/li><\/ul> How Resolution 2462 Came About<\/strong><\/a><\/p>\n After 9\/11 the UN adopted resolution 1373 requiring all member states to respond to global terrorist threats. Subsequent resolutions addressed terrorist financing, ISIL and al- Qaida, foreign terrorist fighters, organized crime and illicit trade in cultural property. \u00a0After several attacks in France, the French government made CFT a priority, hosting a conference in Paris in April 2018 that drew participation from over 70 countries. The\u00a0final statement<\/a><\/strong>\u00a0from the conference participants outlined ten steps to \u201c to improve the effectiveness of CFT efforts.\u2019 At a subsequent\u00a0Arria-formula meeting at the UN<\/a><\/strong>\u00a0in January 2019 gaps in member state implementation of UN resolutions and new forms of terrorist financing were discussed. Such discussions led France to spearhead the process that led to resolution 2462.<\/p>\n During consideration of Resolution 2462\u00a0<\/a><\/strong>Vladmir Voronkov, UN Under-Secretary General Office of Counter-Terrorism, said the resolution is being adopted at a \u201ccritical time,\u201d citing recent terrorist attacks. FATF President Marshall Billingslea\u00a0noted<\/a><\/strong>\u00a0that fewer than 20 percent of countries have criminalized terrorist financing and two-thirds do not effectively prosecute it. He also\u00a0warned\u00a0<\/a><\/strong>that states must address factors that can lead to instability, such as corruption, weak governance and lack of respect for the rule of law. (Billingslea is also the U.S. Treasury Department\u2019s Assistant Secretary for Terrorist Financing.)<\/p>\n The\u00a0UN summary<\/a><\/strong>\u00a0of the Security Council\u2019s session notes that over 70 speakers took the floor during the open debate, and \u201cstrongly advocated respect for international humanitarian law, international human rights law and international refugee law,\u00a0with the United Nation playing a capacity-building role.\u201d\u00a0<\/em>(emphasis added) The observer from the International Committee of the Red Cross cautioned that although states have legitimate need for security measures, \u201c[C]ertain measures, most notably counter-terrorism legislation and sanctions, can criminalize and restrict humanitarian action.\u201d<\/p>\n Highlights – Resolution 2462<\/strong><\/a><\/p>\n The Preamble describes the variety of ways terrorists can raise and move funds, including kidnap for ransom, organized criminal activities, abuse of legitimate businesses and non-profit organizations and use of communications technologies and evolving financial technologies and services. Binding operational paragraphs address issues include information sharing and international cooperation, the need for robust enforcement bodies and the need for many countries to adopt legal measures in line with the resolution.<\/p>\n The binding operational paragraphs reaffirm resolution 1373 in broad terms, as follows:<\/p>\n 2.\u00a0Emphasizes<\/em>\u00a0its decision in resolution 1373 that all Member States shall criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts; and its decision in resolution 2178 that all Member States shall establish serious criminal offenses regarding the travel, recruitment, and financing of foreign terrorist fighters;<\/p>\n It then goes on to define prohibited activities broadly:<\/p>\n 3. Highlights<\/em>\u00a0that the obligation regarding the prohibition in paragraph 1 (d) of resolution 1373 applies to making funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of terrorist organizations or individual terrorists\u00a0for any purpose<\/em>, including but not limited to recruitment, training, or travel, even in the absence of a link to a specific terrorist act;\u201d (emphasis added)<\/p>\n The breadth of this sweeping prohibition is qualified by paragraphs 5, 6, 23 and 24, as described below.<\/p>\n The resolution\u2019s Preamble notes the obligations of member states to \u201cprevent and suppress the financing of terrorist acts\u201d and ensure that terrorists and their supporters are treated as \u201cserious criminal offenses\u2026\u201d It then goes on to caution that humanitarian and human rights obligations be respected by:<\/p>\n \u201cReaffirming that that Member States must ensure that any measures taken to counter terrorism comply with all their obligations under international law, in particular international human rights law, international refugee law, and international humanitarian law,\u00a0underscoring<\/em>\u00a0that respect for human rights, fundamental freedoms and the rule of law are complementary and mutually reinforcing with effective counter-terrorism measures, and are an essential part of a successful counter-terrorism effort,\u00a0noting<\/em>\u00a0the importance of respect for the rule of law so as to effectively prevent and combat terrorism, and\u00a0noting<\/em>\u00a0that failure to comply with these and other international obligations, including under the Charter of the United Nations, is one of the factors contributing to increased radicalization to violence and fosters a sense of impunity,\u201d<\/p>\n The operative (binding) paragraphs on protections for humanitarian activities and human rights speak for themselves:<\/p>\n 5. Decides<\/em>\u00a0that all States shall, in a manner consistent with their obligations under international law, including international humanitarian law, international human rights law and international refugee law, ensure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense the wilful provision or collection of funds, financial assets or economic resources or financial or other related services, directly or indirectly, with the intention that the funds should be used, or in the knowledge that they are to be used for the benefit of terrorist organizations or individual terrorists for any purpose, including but not limited to recruitment, training, or travel, even in the absence of a link to a specific terrorist act;<\/p>\n 6.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Demands<\/em>\u00a0that Member States ensure that all measures taken to counter terrorism, including measures taken to counter the financing of terrorism as provided for in this resolution, comply with their obligations under international law, including international humanitarian law, international human rights law and international refugee law;<\/p>\n The importance of civil society and protections afforded by human rights law is acknowledged and FATF\u2019s Recommendation 8 cited, as follows:<\/p>\n 23.\u00a0\u00a0\u00a0\u00a0Recognizes<\/em>\u00a0the vital role played by non-profit organizations in national economies and social systems,\u00a0calls on<\/em>\u00a0Member States to periodically conduct a risk assessment of its non-profit sector or update existing ones to determine the organizations vulnerable to terrorist financing and to inform the implementation of a risk based approach,\u00a0encourages<\/em>\u00a0Member States to work cooperatively with the non\u2011profit sector in order to prevent abuse of such organizations including front organizations by and for terrorists, while recalling that States must respect human rights and fundamental freedoms and\u00a0recalls<\/em>\u00a0the relevant recommendations and existing guidance documents of the FATF in that regard, in particular its recommendation 8;<\/p>\n Specifically, the resolution:<\/p>\n 24.\u00a0\u00a0\u00a0\u00a0Urges<\/em>\u00a0States, when designing and applying measures to counter the financing of terrorism, to take into account the potential effect of those measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law;\u201d<\/p>\n An\u00a0analysis of the resolutions provisions on humanitarian activities<\/a><\/strong>\u00a0by Nathalie Weizmann, a Senior Legal Officer with the United Nations Office for the Coordination of Humanitarian Affairs writing in her personal capacity can be found here.<\/p>\n The resolution includes requirements for government financial oversight and regulatory systems and for information sharing by financial institutions, including reporting and disclosure requirements. While calling for transparency and traceability of financial transactions, paragraph 20 acknowledges that such measures must be \u201cin compliance with international law and humanitarian law, including by:<\/p>\n (a)\u00a0\u00a0\u00a0\u00a0 Fully exploiting the use of new and emerging financial and regulatory technologies to bolster financial inclusion, and to contribute to the effective implementation of AML\/CFT measures;<\/p>\n There is no further language addressing financial inclusion and no specific provision on avoiding bank derisking. However, during the briefing the Council heard from Mercy Buku, an expert on CFT and anti-money laundering from Kenya.\u00a0Ms. Buku spoke\u00a0<\/a><\/strong>about the 1.7 million people, mostly in Africa and South-East Asia, who do not have access to banking services and urged member states to take financial inclusion into account when implementing CFT measures.<\/p>\n The Preamble underscores the importance of the Financial Action Task Force\u2019s (FATF) standards to combat AML\/CFT and encourages member states to cooperate with FATF\u2019s programs. In the binding operational section of the resolution explicitly:<\/p>\n 4. Strongly urges<\/em>\u00a0all States to implement the comprehensive international standards embodied in the revised Forty FATF Recommendations on Combating Money Laundering, and the Financing of Terrorism and Proliferation and its interpretive notes;<\/p>\n The importance of FATF\u2019s standards is emphasized, without clearly requiring a risk-based approach. Paragraph 14 requires states to identify terrorist financing risks \u201cin line with FATF standards\u201d and establish \u201cautonomous financial intelligence units with a view to strengthening their framework to prevent and counter the financing of terrorism, in line with FATF standards.\u201d (paragraph 15) In addition, FATF\u2019s country assessments are cited as a resource for effective financial oversight and regulatory systems. (Paragraph 18) The resolution cites FATF risk-based standards on regulation of virtual assets as a resource for states\u2019 monitoring and supervision of virtual asset service providers. FATF standards for information sharing on foreign terrorist fighters are also cited (paragraph 28(d))<\/p>\n\n
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