ATbar Terrorism Prosecution & Countering the Financing of Terrorism – ICT16

Terrorism Prosecution & Countering the Financing of Terrorism – ICT16

15/09/2016 | by ICT16  

The session was part of the ICT's 16th World Summit on Counter-Terrorism: "Unpuzzling Terrorism".  Dismantling funding to terrorist organizations is a critical aspect to reducing their ability to operate and recruit. In the past, AQ relied on foreign donors while ISIS capitalized on exploiting resources within its controlled territories. ISIS is known to be the most well-funded terrorist organization of all-time. Although sanctions have been somewhat effective due to the legal and subjective risk they impose on the potential collaborator, the ability to defeat terrorist funding in the future will rely on the international community’s ability to disrupt back-door banking transactions, oil sales from ISIS controlled-areas, and stopping money from being sent across borders to fund other terrorist organizations. NGO’s also have an important role in preventing the funding of terrorist front companies through diligence and transparency of their actions where known terrorist groups operate.  

Chair: Col. (Ret.) Jonathan Fighel, Senior Researcher & Head of the Terrorism Prosecution Desk, ICT, IDC Herzliya, Israel

Ms. Katherine Bauer, Senior Fellow, Washington Institute for Near East Policy, United States of America

Adv. Sean P. Carter, Member, Cozen O'Conner Law Firm, United States of America

Adv. Dvorah Chen, Associate, ICT, IDC Herzliya & Former Head, Department of Security Matters and Special Affairs, State Attorney's Office, Ministry of Justice, Israel

Prof. Gerald Steinberg, President, NGO Monitor, Israel

Adv. J. Scott Tarbutton, Member, Cozen O'Conner Law Firm, United States of America


Col. (Ret.) Jonathan FighelCol. (Ret.) Jonathan Fighel

Col. Fighel presided over the workshop, opening it with a brief explanation of the topics to be discussed and highlighting main points throughout the presentations. Fighel stated that some topics which are important to discuss are the public perception of terrorism fundraising and prosecution as well as what the public sector is doing to deal with these phenomena (issues of policy), civil lawsuits and criminal prosecution.

Throughout the presentations, Fighel noted that the lack of transparency is a well-known problem in regards to terror fundraising. He stated that "this is an ongoing challenge, even if you freeze or designate, it's like a river, the water will always find its way back into the sea.” In regards to ISIS fundraising, Fighel noted that there are also implications for Hamas in Gaza, though the topic was not discussed in depth. Col. Fighel discussed the problematics of persuading counter-parts that a conspiracy exists, that organizations and states are actively involved in funding terrorism. He noted the need to build a body of evidence that charities are state-owned, terror financing, organizations. Open-source intelligence and publications are used in order to build this body of evidence. The use of police memos was also discussed, with Col. Fighel noting cases in which Israeli police memos were used in U.S. courts. Finally, Fighel embellished on the article in Politico, noting that this is the first time Saudi officials are saying "we misled you".

Prof. Gerald SteinbergProf. Gerald Steinberg

Professor Steinberg spoke about terror prosecution and counter-finance of terror in the public domain. He discussed the continuing link between NGO’s and the funding of terrorism. Prof. Steinberg opened his remarks by referring to the Gaza reconstruction efforts, noting a principal part of this funding comes from humanitarian organizations, while the principal industry in Gaza is efforts of constructing warfare. The presentation also referred to the World Vision Gaza (WVG) as an example. WVG has an annual budget of $2.8 billion. Mohammad El-Halabi, a Hamas agent, diverted 60% of the WVG funds ($50 million over 10 years) to Hamas.

Prof. Steinberg then spoke about the responsibility of funder-enablers, noting the lack of responsibility and due diligence as a major problem in this regard. Many individuals in NGO’s justified funding front organizations, by claiming that this funding is essential and that the NGO itself was not responsible for vetting the organizations.

Prof. Steinberg emphasized that the financing of terrorism is a general problem and not specific to Israel, providing the examples of Interpal, IHH, and Islamic Relief Worldwide.  The presentation highlighted the fact that NGO's and funders have choices in interactions with terror groups and offered the following recommendations: due diligence must be included in intelligence capabilities, NGO’s need to share information and cooperate with intelligence communities, governments, and each other, increase transparency, and develop guidelines, checks and balances.

Ms. Katherine BauerMs. Katherine Bauer

Ms. Bauer spoke about the evolution of ISIS financing methods, and ISIS core financing in Syria and Iraq, financing in the periphery and its relationship to the core. Ms. Bauer opened her remarks by pointing out that ISIS has been known as the most well-funded terrorist organization of all time. When there is humanitarian crisis, this attracts aid and this aid is exploited by terrorist actors.

Ms. Bauer referred to the July 2016 Report of the UN Monitoring Team for UNSC 1267/1989/2253 to show that sanctions remain a key tool in effectively countering the threat of terrorism from ISIS and AQ. According to Ms. Bauer, the targeted financial sanctions proved effective because they presented a legal and subjective risk. ISIS core financing poses an unprecedented threat to the traditional counter-finance of terror tools because money comes from internal territory. This allowed ISIS to take advantage of multiple existing geographic structures such as looting bank vaults, oil sales, taxes and extortion and ransom. This is in contrast to AQ, which heavily relied on foreign donors. Ms. Bauer noted that ISIS was unable to replicate their success in the core to the periphery, their affiliates outside Syria and Iraq.   Ms. Bauer concluded by noting statehood, which is a key element in ISIS’s endeavor, will face constraints as it continues to be a vulnerability to the organization. Three areas of coalition efforts to disrupt financing will determine future successes: backdoor baking to fulfill the financial needs of ISIS, detecting and disrupting attempts to send funds to provinces, and the continuance of degrading oil infrastructure in ISIS controlled territories.

Adv. J. Scott TarbuttonAdv. J. Scott Tarbutton

Adv. Tarbutton offered insight into his law firms' 13-year effort of pursuing justice for victims of 9/11. The pending lawsuit names over 500 defendants who provided support (material, financial, logistical and ideological) to Osama bin Laden and al Qaeda, without which the 9/11 attacks would not have occurred. These defendants include designated terrorist groups, individual terrorists, terror financiers and related entitles, international Islamic financial institutions, commercial entitles with alleged ties to Al Qaeda, wealthy Saudis, and the Kingdom of Saudi Arabia. The charge against the Kingdom itself lays mostly on the claim that tightly-controlled Saudi charities provided support to Bin Laden and Al Qaeda. Examples of such charities include the Muslim World League (MWL), International Islamic Relief Organization (IIRO), World Association of Muslim Youth (WAMY), and al-Haramin to name a few. The litigation also alleges direct support from Saudi officials.   

Adv. Tarbutton touched upon investigative challenges in civil terrorism litigation. This included locating and collecting compelling evidence against a foreign state which is deemed a key ally by the U.S. For this reason, the majority of the information received from the FBI or CIA was blanked out. To overcome this obstacle, Adv. Tarbutton explained, his firm expended significant resources and time to locate evidence, collecting more than 1 million pages of documents. Helpful documents included International Criminal and Prosecution Investigations (ICTY), Interpol, Freedom of Information Acts, and military tribunals.  With the help of Col. (Ret.) Yoni Fighel and Dr. Eitan Azani, the firm also spoke to former members of al-Qaeda in Bosnia. Adv. Tarbutton further noted defendant publications, both in Arabic and Hebrew, were very helpful.

Adv. Dvorah ChenAdv. Dvorah Chen

Adv. Chen spoke on the Israeli Justice System and Counter-Terrorism and the Israeli practice of dealing with detained suspects, indictment or administrative detention.  Adv. Chen began by pointing out the General Security Service of Israel (Shabak), responsible for investigating terrorist acts, has to conduct investigations by the same rules as the Israeli police. Ruled in HCJ 5100/94 Public Committee against Torture in Israel V. the State of Israel, Adv. Chen believes HCJ 5100/94 is the most important Supreme Court decision.  Nine justices unanimously ruled the Shabak did not have the authority to employ certain methods: “democracy must sometimes fight with one hand tied behind its back.” General practice says indictments should always be the first option, but administrative detention can be used as a secondary measure, if it is necessary for reasons of state security or public safety and only for a limited time. Adv. Chen explained several problems criminal prosecutors face when dealing with terrorist indictments and showed how these problems are mitigated by the administrative detention track. Adv. Chen concluded with a case study of Marwan Barghouti.  

Adv. Sean P. CarterAdv. Sean P. Carter

Adv. Carter concluded the session by providing further insights from the discussion and initiating a question-and-answer session. Initially, Carter questioned Steinberg and Bauer about their presentations, asking whether the focus on ISIS in Washington has created an impression that tradition models of terror financing deserve less attention. He queries whether there has been a shift in the focus, whether resources have been diverted away from the focus on charities and other traditional models in favor of the new methodologies of financing, and whether this poses a risk in the future.

In response, Prof. Steinberg argued that there is a need to distinguish between macro and micro. In the case of Gaza and Hamas, there is no need to isolate them from the international financing system, as they are already disconnected from it. As such, they have a need to rely on the NGO-humanitarian aid channels. When dealing with something as broad as ISIS, an organization that has immense access, the case is different. Bauer agreed, noting that it is important to continue using traditional counter-terror fundraising apparatuses. The tools built up regarding terror organizations that control territory are added to the tool-kit, but should not take away from the traditional models.

Carter then questioned whether, as the West degrades ISIS' capacity to generate funds, will the organization likely revert back to traditional models of financing, such as funding from sympathetic donors, and is there evidence of such occurrences. Bauer responded that to the best of her knowledge such actions have yet to be carried out- there does not seem to be an appetite for external financing.

Adv. Carter then noted the article in Politico which was published the day before the website, explaining that in the attempt to build an evidentiary portfolio to support the claims of 9/11 victims against the Saudi government the question of "why" is essential. Why would Saudi Arabia and its state-funding apparatus be involved in such activity? The article in Politico, by the former U.S. Ambassador to Afghanistan, Iraq and the UN, indicated that recent conversations with Saudi officials they had acknowledged some problematic behavior in the past. This is in contrast to the traditional Saudi stance, which claimed no support for violent extremism. Carter argues that the realization that this ideology (which Saudi Arabia had promoted to contrast Nazarism and Communism) had turned against them, had brought about a sort of policy shift.