B. Criminal Offenses
Good Practice 12
Criminalize Terrorism offenses as Outlined in the Applicable International Conventions and Protocols.
Although States may approach codification of terrorism offenses differently depending on their legal traditions, States should criminalize the offenses outlined in the relevant international counterterrorism legal instruments to which they are a party, or which are required by relevant UN Security Council resolutions, as part of a comprehensive legal framework to combat and prevent terrorism.22 Furthermore, States that are not a party to some or all of these international instruments should consider becoming a party.23 Adequate incorporation into national legislation of the international counterterrorism provisions and obligations constitutes a key element in a comprehensive and coherent counterterrorism legal framework that is sufficiently precise to give fair notice of conduct that is prohibited and guards against potential misuse of criminal laws.
22. Certain terrorism-related offenses are already covered by specific international conventions requiring State Parties to criminalize those actions. See e.g. Hostages Convention, Supra note 10, art. 1 (criminalizes “hostage-taking”); Terrorist Bombings Convention, art. 2 (makes it illegal to “deliver, place[ ], discharge[ ], or detonate[ ] an explosive or other illegal device”); Nuclear Terrorism Convention, art. 2 (makes it an offense to make, possess, or use radioactive material or a device, or to damage a nuclear facility).
23. See, UN Sec. Res. 1373 para. 3(d).
Good Practice 13
Criminalize Conspiracies, Solicitation and other Preparatory Acts of Terrorism.
Criminalizing preparatory acts, such as conspiracy, terrorist fundraising, terrorist recruitment, planning and training, particularly when a terrorist attack has not yet been carried out, is vital in an effective criminal justice preventive approach to counterterrorism. If terrorist violence is to be reduced and attacks are to be thwarted before they occur, authorities must be able to focus their attention on proactive intervention when terrorist suspects are at the planning and preparation stages. While countries differ on how exactly these offenses are defined (e.g., membership in a terrorist organization, directing the activity of terrorist organizations, solicitation, incitement or recruitment) criminalization of preparatory acts will greatly facilitate early intervention. The creation of conspiracy or criminal association offenses, which prohibit agreements to commit crimes associated with terrorism, is vital to facilitating this early intervention. For these offenses to be complete, terrorist attacks need not be attempted or accomplished but only agreed to or prepared for in some manner. In the criminalization and prosecution of these acts, countries should pay full respect to the rights of individuals to freedom of expression, freedom of religion or belief, and freedom of association.
Good Practice 14
Criminalize Attempts to Commit and Aiding and Abetting Terrorist Acts.
Likewise, countries should enact laws that criminalize attempts to commit, or aiding or abetting the commission of, terrorism offenses.24 Criminalizing attempts, even when the perpetrator does not ultimately succeed in committing the crime, is essential in a preventative criminal justice system.
24. International conventions commonly criminalize any attempt to commit the substantive offense covered by the convention. See UNCAC, art. 27.2; Terrorist Bombings Convention, art. 2.2; Hostages Convention, art. 1.2; Genocide Convention, art. 3(d); ICTY Statute, art. 4.3; ICTR Statute, art. 2.3. These same international conventions often criminalize participating in an offense as an accomplice. See UNCAC, art. 27.1; ; Terrorist Bombings Convention, art. 2.3; Hostages Convention, art. 1.2; Genocide Convention, art. 3(e) (makes punishable “complicity in genocide”); ICTY Statute, art. 4.3 (makes punishable “complicity in genocide”); ICTR Statute, art. 2.3 (makes punishable “complicity in genocide”).
Good Practice 15
Criminalize Terrorist Financing.
Preventing terrorists and terrorist organizations from funding their activities is an essential component of any successful counterterrorism strategy and a binding requirement under several UN Security Council resolutions.25 Countries should enact laws that criminalize the financing of terrorism in accordance with the International Convention for the Suppression of the Financing of Terrorism, and are encouraged to implement the Financial Action Task Force (FATF) Recommendations on Criminalizing Terrorist Financing.26 Procedures and proper mechanisms allowing for the freezing, seizing, and confiscation of terrorist assets and funds used or allocated for the purpose of terrorist financing, should also be enacted in accordance with the relevant UN Security Council resolutions and subject to appropriate review.
25. See, e.g., U.N. Sec. Res. 1267 (1999); U.N. Sec. Res 1373 (2001).
26. In addition to the International Convention for the Suppression of the Financing of Terrorism, other international conventions also prohibit the activities of those who “knowingly finance” offenses set out in that particular convention. See Terrorist Bombings Convention, art. 15; accord Nuclear Terrorism Convention, art. 7.1.