Statement on the Bill to Ratify the International Convention for the Suppression of the Financing of Terrorism and Domestic Legislation
The government has presented to the current Diet a bill to ratify the International Convention for the Suppression of the Financing of Terrorism adopted by the United Nations in 1999 and another bill on implementing the Convention's provisions in national law.
The Convention first invokes the definition of terrorist acts as already established under existing United Nations conventions on terrorism. With this it also: (1) criminalizes actions meant to supply or acquire financing for terrorist acts regardless of the means used or whether such funding was direct or indirect; (2) criminalizes attempting to, directing others in, or providing direction for the financing of terrorist acts or complicity in such; (3) requests states to coordinate their jurisdictions on an international basis; (4) provides regulation aimed at the forfeiture or seizing of funds; (5) calls for mutual cooperation in investigations and the transfer of suspects; and (6) obligates financial institutions to verify and report on suspect account holders.
If this convention is made into domestic law as is, however, there is the possibility that, for example, campaigns by organizations in Japan to provide financial support for activities against the apartheid regime in South Africa or the East Timor independence movement would become subject to punishment as criminal activities. Likewise, there is the danger that it would be harmful to citizens' freedoms of expression and assembly.
For this reason, we note first that the definition of terrorist acts themselves that are the object of regulation is extremely vague. The Convention provides as acts to be regulated "any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act" (Article 2, Section 1, Paragraph b). However, there is concern that the government's interpretation may broaden this in some way.
Second, the question of who will establish whether or not a given organization's activities are related to terrorism, as well as the means with which such a judgement will be made, is a problem. The Convention does not provide any procedural guarantees or any measures to provide redress should any erroneous identification be made. Accordingly, in its present state there is the distinct possibility that it will be entrusted to the arbitrary judgement of the investigating organization.
Third, in making the financing of terrorism a crime, it is necessary that the person providing funds supplies them "with the intention that they should be used or in the knowledge that they are to be used" for terrorist acts. However, when considering the points that such recognition must be found in a trend that can be inferred from objective factual circumstances (United Nations Convention against Transnational Organized Crime, Article 6, Section 2, paragraph f) and that the Terrorism Financing Convention itself does not consider whether or not any funds that have been provided have been actually used to carry out an offense (Article 2, Section 3), even cases that don't involve the provision of finances through a definite and willful act of negligence may be subject to punishment.
Thus, precision would be lacking if the provisions of the Convention in their current state were to be taken as providing the structural conditions for criminal acts. There is no logical connection between the regulatory object and the regulatory measures, and the Convention's content does not escape criticism as being of a sort that justifies excessively wide-ranging regulations in the name of providing countermeasures against terrorism.
Our federation believes there are fundamental areas to be questioned in the ratification of the convention and the adoption of its terms into national law. We also believe it necessary for the ratification and adoption into national law of this convention to involve consultations with the Legal Deliberative Council on such matters as the specification of those items about which Japan has reservations and the careful advancement of studies thereof. Furthermore, even if ratification should take place, we urge strict treatment of the definition of terrorism and the procedures for confirming an organization as being related to terrorism and ask that the resulting system pose minimal problems to the guarantee of human rights.
Kazumasa KUBOI
President
Japan Federation of Bar Associations
February 20, 2002
