By Jonathan M. Winer
November 5, 2003
Beneath the loud shout of unilateralism present from the creation of the Bush Administrations invasion of Iraq, a veritable orchestra of institutions have continued to play sotto voce to build global capacity against terrorism and transnational crime.
These have included traditional enforcement-related organizations such INTERPOL for the worlds police, the World Customs Organization for customs, and the Financial Action Task Force (FATF), each of which has since the September 11 terrorist attacks pressed forward with innovative initiatives to create new common mechanisms for cooperation against terrorism and transnational crime. Of at least equal significance are a host of newer international law enforcement institutions, some of which are beginning to develop the capacities to directly participate in law enforcement operations.
But possibly most striking has been the unprecedented role that the United Nations has played over the past two years to secure, monitor, and enhance global participation in sanctions against terrorist financiers, even as it moves forward with a growing array of training, technical assistance, monitoring, and harmonization initiatives through its operational arms in Vienna. Indeed, working closely with such unlikely partners as the International Monetary Fund and the World Bank, the UN has taken on new responsibilities to create capacity to deal with transborder terrorist and criminal threats. The result is a growing matrix of national capacities that are beginning to extend into a web of actual transnational capacity against the dark side of globalization.
Global Law Enforcement Organizations and Transborder Crime.
International law enforcement organizations have existed for a long time, since at least the founding of INTERPOL in Vienna in 1923. However, until recent years, they have been few in number mainly consisting of INTERPOL and the World Customs Organization (WCO) and generally limited in function to four mechanisms:
- Acting like a central telephone switching mechanism for queries and responses on particular law enforcement matters through a system of central liaisons.
- Functioning as a general library for problems in common. In the case of INTERPOL, this has included maintaining a library of the worlds largest collection of counterfeit documents and technical expertise to help match suspected counterfeits to those in the library.
- Facilitating the adoption of universal standards and norms, to which member states can conform their laws both to adopt best practices and to ease operating with others.
- Providing a forum for those involved in enforcement in different countries to meet, share professional concerns, and promote common objectives through adopting resolutions they could then usefully market back home for enhancing their status, resources, or capacities.
Each of these organizations eschewed the risk of undertaking operational activities. They moved information and standards across borders. They did not undertake investigations.
Although INTERPOL and the WCO each have undertaken some ambitious new initiatives in recent years, they have not tried to challenge the prohibition on participating in operational activities. However, some newer transborder law enforcement entities are starting to press beyond the constraints that have limited INTERPOL and the WCO and illustrate the degree to which the old rules are starting change. These new entities include new European Union (EU) entities, such as Europol and Eurojust, each of which have direct operational capacities; the Southeast European Cooperative Initiative (SECI) whose SECI-Center in Bucharest is trying to create integrated law enforcement capacities in the Balkans; and the Southern Africa Development Community (SADC), which has focused aggressively on both the development of standards and norms for its member states and operational activities through the Southern Africa Regional Police Chiefs Cooperation Organization (SARPCCO), which helps its member countries implement law enforcement obligations under SADCs various relevant protocols.
Examples of areas where they carry out functions broader than those of the traditional international law enforcement organizations include:
- Europol. Granted jurisdiction over all major cross-border crimes, including drug trafficking, people smuggling, terrorism, stolen motor vehicles, child pornography, counterfeiting, money laundering and cybercrime, Europol does not just provide operational analysis and generate threat assessments, but provides experts and technical support for investigations handled by member states. As a result, Europol does not itself engage in operational law enforcement activities, but its contribution to such activities of member states is sufficiently intimate given its ability to facilitate information exchange from one state to another that the distinction is increasingly blurred.
- Eurojust. Responsible for helping EU member states investigate and prosecute cross-border crime, Eurojust can set up a joint investigation team that carries out an investigation on behalf of one or more member states. This places Eurojust potentially in the position of being the first operational transborder prosecutors office.
- SECI. SECI has created a regional center for combating transborder crime, operational since January 2001, similar in many respects to Europol, but more operational. Created by a legal instrument signed by participating SECI member states, the SECI center services as a regional mini-INTERPOL by which the nine participating countries can exchange law enforcement and customs operation through a single location. In its first year of operation, SECI handled more than 3000 requests for information relating to transborder crimes. Since then, it has coordinated specialized task forces aimed at combating drug trafficking, trafficking in persons, customs valuation fraud, financial and cyber crime, small arms violations, and trafficking in radioactive and other dangerous materials, thus providing strategic, tactical and operational capacities.
- SADC and SARPCCO. SADC creates standards and norms for participating Southern African countries in such critical areas for law enforcement as drug trafficking, corruption, mutual recognition of laws, and mutual legal assistance. SARPCCO then creates operational capacity to deal with these issues across national borders through acting as a regional office of INTERPOL although it is also a separate, sovereign entity responsible solely to its African members. SARPCCOs functions are similar to that of Europol, including the development of joint strategies to manage serious transborder crime, regional training activities, and harmonization of procedures. But, at least on paper, SARPCCO also provides assistance to cross-border law enforcement operations in the region, formulating agreements on permitting law enforcement officers on duty to avoid visa requirements when in hot pursuit.
Notably, all of these organizations are recently constituted. None can point to major investigations in which the international organization played a visibly central role. However, their authority for and prospective involvement in operational law enforcement marks a significant practical expansion in the role played by international institutions in operational law enforcement.
The United Nations and International Terrorism.
With little fanfare, the UN has played a central and remarkably effective role since September 11 in securing the development and implementation of anti-terrorism measures throughout the world, especially in the area of combating terrorist finance. In so doing, the UN transformed the requirement that member states deny support, including funding, for terrorists into concrete changes in national legal and administrative mechanisms in a majority of the UNs member states.
At a political level, the terrorist attacks of September 11, 2001 created multilateral support for restricting terrorist finances to a degree that previously was thought impossible. This political consensus was transformed rapidly at U.S. direction but with total commitment from the UN and Secretary General Kofi Annan into legal structures. Within weeks the Security Council unanimously adopted Resolutions 1368 and 1373 containing comprehensive authority and binding obligations for all Members to take specific action to counter terrorism. The Security Council also created an oversight mechanism, the Counterterrorism Committee (CTC), which engaged in a far greater level of activity than had any previous UN sanctions committee.
The UNs achievements have been at least four-fold. First, the UN Security Council functioned as a vehicle to secure agreement upon a comprehensive set of actions to be taken by all member states against all persons and entities involved in terrorist finance. Secondly, with the CTC, the UN established a mechanism to monitor and to stimulate action on a national basis against terrorist finance, ratcheting up national regimes on an ongoing basis. Third, the UN provided technical assistance to countries needing help in developing a regime to combat terrorist finance, as well as facilitated the involvement of such relevant entities as the IMF and the World Bank in unifying efforts against terrorist finance with anti-money laundering efforts also underway at both institutions. Finally, the UN simultaneously engaged in fact-finding on the results of the new global terrorist finance regime through the work of a Monitoring Group established under separate UN Security Council resolutions pertaining to Afghanistan, including Resolution 1267 (1999), Resolution 1363 (2001), and Resolution 1390 (2002). This monitoring group undertook the challenging task of evaluating the implementation of the measures that the Security Council decided member states must take against Osama bin Laden, Al-Qaeda, the Taliban and associated individuals and entities, especially in the area of asset freezing. Its August 22, 2002 report remains the most detailed evaluation available globally on the implementation of financial sanctions against those entities, and thus, a useful functional indicator both of the successes and limitations of existing actions against terrorist finance more generally.
Notably, the UN had twin focuses: on the one hand, the Resolution 1267 Committee assessed the activities of terrorists and the actions need to combat them. At the same time, the Resolution 1373 Counterterrorism Committee or CTC focused on the actions of member states, carrying out the equivalent of self-assessment and mutual-assessments in a streamlined version of the approach first innovated by the Financial Action Task Force (FATF) for money laundering. From the beginning, the CTC approached its task aggressively. Its chairman, Jeremy Greenstock, used the broad scope of the Committees mandate as a template for monitoring and evaluation of each UN Member State. Rather than attempting to engage in law enforcement, or in direct name-and-shame political activity, it rather sought to be a neutral, technocratic assessment tool that would identify gaps and report them to the Security Council. At one level, the CTC has offered advice and guidance to governments on furthering the implementation of the resolution on the basis of self-assessments submitted by each State. At another level, its work -- all published online by the UN -- enabled it to provide public report cards of each member states progress in meeting the commitments made by all member states. The transparency of this technocratic approach has made it very difficult for member states to engage in diplomatic evasions or deals to avoid criticism. Instead, when the CTC has not received information on the implementation of a given commitment from a country, it has gone back to that country with questions regarding how it is carrying out that commitment. This process helped any number of member states move forward with the creation and implementation of domestic regimes.
Early on, the CTC adopted guidelines for the conduct of its work, in which it emphasized transparency, even-handedness, and cooperation and dialogue with member states. It created a website and posted a directory of contact points within each Member State. The CTC developed work programs for 90-day periods and hired experts, initially in the areas of counter-terrorism legislation and financial controls. CTC developed detailed guidance to facilitate member states preparation of mandatory reports on national actions taken to implement resolution 1373. This action was particularly important in establishing a threshold for substantive reporting, and helped to serve as the basis for dialogue with member states regarding follow-up actions to ensure full implementation. Traditionally, both the quantity and quality of reports submitted by States to Sanctions Committees have been poor, typically consisting of no more than one sentence reports indicating that States had taken all necessary steps to comply with the requirements of the resolution. In contrast, by the end of 2001 when the first report reports were due, the CTC had received 117 reports from member states; by April 15, 2002, the number had increased to 143, which became 351 by March 31, 2003.
Rather than try to carry out its work solely on its own, the CTC chose to collaborate with the IMF and World Bank, which had undertaken evaluation and technical assistance programs in the area of combating money laundering as a matter of promoting financial stability and combating corruption prior to the September 11 attacks. The CTC was able to take advantage of criteria previously developed by the FATF and adopted by the IMF and World Bank and refine that criteria to apply to the area of terrorist finance as articulated in Resolution 1373. The CTC then assessed each Member States actions against those criteria, focusing on whether there was a need for further follow-up to determine whether there had been sufficient compliance with Resolution 1373, especially regarding legislation and terrorist financing and whether the Member State required technical assistance. CTC then articulated specific, detailed questions and required that they be answered by particular deadlines. In compiling their reports, CTC required member states to specify concisely and clearly the legislative and executive measures they had in place or contemplated to give effect to the resolution, and other efforts they were making in related areas.
Once the CTC identified gaps or weaknesses in Member State compliance, it provided advice and recommendations to the Member State in a report sent with a cover letter from the Chair. While the details of the advice and questions from the CTC to States have been generally maintained as confidential, unclassified responses to each report they are circulated as Security Council documents. Through this semi-confidential, semi-public process, the CTC has provided advice and guidance to member states in filling their Resolution 1373 implementation gaps.
To move forward quickly, the CTC adopted a three-stage approach in which it would assess each country three times in what it termed Stage A, Stage B and Stage C. In summary, Stage A has encompassed the creation of a sufficient legislative framework against terrorist finance, Stage B extends to domestic implementation in practice of the legislation, and Stage C encompasses international cooperation, including police, prosecutorial and judicial exchanges of information. This report and query-response process is designed to lead countries either to adopt further measures, or to seek technical assistance, or both. It follows the approach of self-assessment, followed by mutual assessment, adopted first by the FATF, and in recent years by the OECD in connection with enforcing the Bribery Convention, and by regional anti-money laundering and anti-corruption organizations.
As the CTC began its review of reports, the lack of capacity within many States to implement Resolution 1373 became clear. Implementation across States has varied considerably, with many states having little or no experience with counter-terrorism efforts, and some States lacking even the ability to prepare the required report to the CTC. As of March 2003, more than 100 countries had been identified as needing assistance, either through requests of the CTC or bilaterally or multilaterally. The areas of greatest need are in legislative drafting in anti-terrorism law, and banking and financial law and regulations, especially concerning the financing of terrorism.
To assist governments in accessing information on best practices and potential assistance programs, the Committee developed a comprehensive online Directory of Counter-Terrorism Information and Sources of Assistance. In addition, a Technical Assistance Team (TAT) was formed to raise awareness regarding the need for and sources of counter-terrorism assistance. Ambassador Curtis Ward was appointed to liaise with international and regional organizations concerning the provision of assistance. An Assistance Action Plan was formed to facilitate self-help through resources such as the Directory, encourage donors to respond to assistance needs, and work to strengthen the capacity of regional and sectoral organizations to assist States. While the CTC does not have the resources to provide technical assistance itself, it has facilitated the flow of information between States with needs and potential providers, especially the IMF, World Bank, and Council of Europe, and promoted coherence between assistance activity and implementation gaps identified through the CTCs monitoring activity. 
Meanwhile, the Resolution 1267 mechanism focused on enforcement. On January 16, 2002, the UN created a Monitoring Group to monitor for twelve months the implementation of the measures that the Security Council decided states must take against Osama bin Laden, Al-Qaeda, the Taliban and associated individuals and entities, specifically, the freeze of assets, the travel ban, and an arms embargo. The Monitoring Group was entirely separate from the CTC, and consisted of a half a dozen technical experts serving under a British chairman, Michael E.G. Chandler, who made a series of trips to various countries in an effort to determine how sanctions had worked in practice. In essence, rather than focusing on standards and norms and gaps in legislative, regulatory and administrative systems as had the CTC, the Monitoring Group instead carried out an investigation into what countries were actually doing to freeze terrorist funds.
To date, the Monitoring Group has issued two major reports providing new information about terrorist finance and national responses to it not otherwise available to the public. The information gathered by the UN was significant, not trivial. The Monitoring Group found that Osama bin Ladens own personal inheritance and investments continued to provide financial support for terrorism, as did funds collected and disbursed by a number of Islamic-based charities and funds provided by members and supporters of Al-Qaeda. It stated that Al-Qaeda continues to obtain funds from small business activities and criminal activity, estimated private donations to Al-Qaeda from wealthy supporters at up to $16 million per year, supplemented by extortion payments, and stated that Al-Qaeda responded to stringent enforcement efforts including tougher know-your-customer standards in Europe and North America by transferring much of its financial activities to Africa, the Middle East and Asia. It also provided information on geographic and sectoral changes in Al-Qaedas handling of terrorist money.
Remarkably, the Monitoring Group also critiqued the deficiencies in the UNs own activities and those of individual countries. The Monitoring Group reported, for example, that the failure of the UN to create a comprehensive consolidated list had the result of uneven and ineffective application of the sanctions, that insufficient identifying information had been provided by individual governments to the UN regarding persons on the UN list, making identification difficult and raising evidentiary problems in obtaining judicial approval for asset freezes. It stated that many states did not enter the names on the UN terrorist list in their border control lists because of the lack of minimum required identifiers making an implicit criticism of the inability of the U.S. to share information with other countries about even the basic biographical details of the terrorists. It also criticized EU standards, noting that confidentiality, privacy concerns and legislative requirements covering investigations were hampering the process of adding names of sanctioned persons to the UN list and in some member states of using the list as a basis for enforcement action. The Monitoring Group found that many UN member states lack sufficient regulatory authority to closely audit or oversee religious-based charitable organizations and the lack of transparency regarding such organizations has impeded the effectiveness of the UN sanctions program as it might apply to these organizations.
Finally, the Monitoring Group issued recommendations to the UN and to Member States on further enforcement actions they could take to render their terrorist finance obligations more effective in practice. These included creating an integrated UN list pf terrorists as authoritative, a move that would require greater U.S. acceptance of a collaborative process in the naming of terrorists, further regulation of alternative remittance systems, and greater global surveillance of charities and their disbursements of funds - the last a problem in countries such as the U.S., not merely those in the Islamic world.
Assessing the New Mechanisms.
The cross-border cooperative efforts of the new regional law enforcement bodies are still in their infancy, but in Europe in particular, they now exist, and are having an impact in combating regional threats. Meanwhile, the UN initiatives against terrorist finance have had a substantial impact on the laws, regulations and mechanisms necessary to turn international standards and norms against terrorist finance into domestic regimes with far broader law enforcement implications. The capacities needed to combat terrorism, including terrorist finance, require the compilation and sharing of information across national borders by institutions that have been fundamentally domestic. But the UN, FATF, WCO, INTERPOL, regional law enforcement institutions are collectively filling the cross-border gap with standards, training, and implementation mechanisms. In some cases, such as that of SECI in southeastern Europe, or SARPCCO in Southern Africa, the new transborder institutions are potentially capable of enhancing domestic capacity beyond that which otherwise would exist even for purely domestic law enforcement.
However, the existing base of capacity has many deficiencies, which are especially vast in developing countries. The challenge is to sustain the international political will that is necessary for the burgeoning efforts to build cross-border law enforcement and regulatory capacity against international crime and terrorism, free up resources for training and technical assistance, find ways to combat corruption and to build capacity among an honest, civil service of law enforcement officials, backed by independent judiciaries, willing to enforce global norms on an impartial basis. In this mission, there will be no lack of opportunities for theoreticians and practitioners to find gaps in capacity in the international system for many years to come.
 This article is a follow on to an earlier paper, Building Global Jurisdiction, Systems and Capacity To Build Global Security - or Even a Superpower Needs Friends, Council on Foreign Relations/American Society of International Law, March 4, 2003, available at /publication/5655/. That paper identified gaps in the international system for combating transborder crime and terrorist threats, and reviewed a few of the newer mechanisms developing to respond to those gaps. This paper attempts to provide greater detail on the range of efforts now taking place to fill these gaps.
 See Letter, Ambassador Greenstock, Chairman of the Counter-Terrorism Committee (CTC), March 31, 2003, at UN Security Council S/2003/404, April 3, 2003.
 Assistance: Next Steps, http://www.un.org/Docs/sc/committees/1373/assistance2.html.
 In 2002, the CTC retained its own experts in investigating and controlling the financing of terrorism and legislative drafting at a national level. See SCA/3/02(8). These were hired to analyze the reports from member states for the CTC, respond to technical questions and requests for further guidance from CTC members or member states, and to draw up detailed guidance on benchmarks and best practice, in cooperation with other relevant organizations, to asset states in implementation Resolution 1373.