Guidance on Criminalising Terrorist Financing: Recommendation 5
Fungibility of Funds
All funds or other assets are fungible, meaning they can be used for any purpose, including financing terrorist activities. This means that even if the specific funds provided to a terrorist organization cannot be directly linked to a particular terrorist act, the fact that the funds were intended to support the organization’s activities is sufficient to establish criminal liability.
Unlawful Intention
The key element in establishing criminal liability for terrorist financing is the unlawful intention of the person providing or collecting funds. The terrorist financier must have knowingly provided or collected funds with the intent that they be used by a terrorist organization or individual terrorist. This intention can be demonstrated through various means, including:
- Statements made by the terrorist financier indicating their intent to support a terrorist organization
- The presence of terrorist propaganda or materials in the financier’s possession
- Evidence of communication between the financier and known terrorist operatives
Knowledge Requirement
The terrorist financier must have knowledge (or belief) that the funds or other assets are being collected for or provided to a terrorist organization or individual terrorist. This means that ignorance or mistake regarding the ultimate use of the funds is not a defense.
Purpose of Funds
It is not necessary to prove the specific purpose for which the terrorist financier intended those funds or other assets to be used by the terrorist organization/individual terrorist. The focus is on the intent behind the provision of funds, rather than their ultimate use.
Use of Funds
The use to which the terrorist organization/individual terrorist actually put (or intended to put, or tried to put) the funds or other assets is not relevant. This means that even if the funds were used for a purpose other than what was intended by the terrorist financier, the criminal liability still applies.
Relevant Aspects
- Whether or not the organization or individual to which funds are provided is, in fact, a terrorist organization or an individual terrorist can be relevant.
- Cases may arise where a terrorist financier has an unlawful intention to finance a terrorist organization (or a terrorist act), but is unsuccessful in doing so. In such cases, the fact that the financier’s intent was criminal in nature is sufficient to establish liability, even if the funds were not ultimately used for their intended purpose.