A Critical Examination Of The Anti-money Prevention Of Terrorist .
A critical examination of the anti-moneylaundering legislative framework for theprevention of terrorist finance with particularreference to the regulation of alternativeremittance systems in the UKKaren Anne CooperUniversity of Leeds School of LawSubmitted in accordance with the requirementfor the degree of Doctor of PhilosophyMay 2014
The candidate confirms that the work submitted is her own and that appropriatecredit has been given where reference has been made to the work of others.Clubb K ‘The terrorist Asset Freezing etc Act 2010: harnessing proportionality tosecure prevention without punishment’ Covert Policing and intelligence Law ReviewIssue 1 2014This copy has been supplied on the understanding that is copyright material andthat no quotation from the thesis may be published without properacknowledgement. 2014“The University of Leeds and Karen Anne Cooper”“The right of Karen Anne Cooper to be identified as the author of this work hasbeen asserted by her in accordance with the Copyright designs and Patents Act1988This thesis draws on the most recent material up to January 1st 2014.II
AcknowledgementsI would like to especially thank my Mum, Anne, for her support and her unwaveringfaith in me. Thank you also to my wonderful daughters, Eleanor and Rachel for yourlove, patience and understanding when my work has been a distraction, and to myfriend Neil for providing much needed moral support throughout.No person’s success comes without the help, support and wisdom of others. Iwould like to express my heartfelt thanks to my supervisors, Professor Clive Walkerand Professor Andy Campbell. This work would not have been possible withoutyour patient and diligent support and guidance.Thank you to all those participants who so generously gave of their time to take partin this research.III
AbstractIn the climate of insecurity post 9/11states sought to limit the operational capacity ofterrorist groups by restricting their access to funds. Alternative remittance systemssuch as Hawala, were suspected to have been used to transfer the funds for use inthe 9/11 attack. Consequently they became a source of international concern inlight of the ‘new models’ of terrorism that emerged which have since warranted areview of national and international counter terrorist strategies. This work hassought to investigate the historical origins and model of operation of traditionalHawala, considering the risks these system pose for assisting terrorist financing. Anormative framework has been presented against which counter terrorist strategiesand the measures enacting their aims are considered for their protection offundamental rights and their capacity for promoting financial inclusion. Thisframework has been presented as a driver to international action to address theinternational threat posed from terrorism in order to protect human rights and humansecurity. This thesis has considered the UK remittance population and the capacityof the UK remittance operators, regulated as money services businesses, topromote financial inclusion within the UK. The central focus and originality of thiswork has been the critical review of the UK regulatory framework for terrorist financerelating to remittance services. This work has presented a critical review of theeffectiveness of the regulatory framework for these businesses which wasinvestigated through fieldwork research. This investigated the views of moneyservice business operators and regulators as to the effectiveness of the MoneyLaundering Regulations 2007 for preventing terrorist finance. Additionally thisfieldwork research aimed to consider the impact of regulation on these businessesand the money service sector. This work has drawn on the findings from theresearch fieldwork to conclude as to whether the regulatory framework has beeneffective in controlling the risks of misuse for terrorism associated with traditionalhawala, in relation to money services businesses in the UK context. The work hasconcluded as to whether regulation in the UK context has effective for andnormatively compliant in the regulation money service businesses in the UK.IV
Table of contentsAcknowledgments .IIIAbstract IVTable of Contents .VList of Tables .IXAbbreviations .X1Chapter 1 The modern terrorist threat- reconsidering thesuppression of terrorist finance .11.0Introduction and context .11.1Aims of this thesis .21.2Originality .31.3Outline of thesis 71.3.1Chapter 2- the nature and operation of ARS by specific referenceto Hawala .71.3.2Chapter 3 - research methodology : design and application .81.3.3Chapter 4 - a normative framework for the regulation of ARS .91.3.4Chapter 5 - critical analysis of the legal framework for theregulation of ARS in theUK .101.3.5Chapter 6 - a critical analysis of the fieldwork research data .101.3.6Chapter 7 – Conclusion 111.4The global terrorist threat 121.5‘New model’ terrorism -emerging trends and new threats .141.5.1The changing nature of the terrorist threat .161.6International Counter terrorism Strategy 171.6.1International stakeholders 201.6.2The European Dimension .231.6.3The UK perspective .261.7Defining terminology - alternative remittance services 291.8Conclusion . 2.4.1.2Chapter 2 The nature and operation of alternative remittancesystems with specific reference to Hawala .37Introduction 37Historical origins and cultural dimensions of alternative remittancesystems 39Method of operation .41Form and practice .43Typology of alternative remittance systems .47Consolidation and settlement .50Use of business accounts .54The concept of trust 55Prevalence of alternative remittance systems - data collection. 58Alternative remittance systems – selection and advantages .60The development of remittance corridors .60Accessibility .61
reference for alternative remittance systems .62Customer satisfaction 63Efficiency and cost 64The threat posed from Hawala .65Evidence of misuse of ARSs .67Unsubstantiated misuse of ARSs for terrorist purpose 70The Al-Barakaat case 72Substantiated misuse of alternative remittance systems 73UK remittance communities 75Conclusion .13.5.23.63.6.13.6.23.7Chapter 3 Research methodology .83Introduction 83Research aims and objectives .85Model of practice in the UK 86Qualitative or quantitative methods .88The selection of a qualitative approach 91The selection of semi-structured interviews 92Generating the data 96The interview schedule 96Sampling strategy 98The interview format .101Data collection and analysis 103Transcribing the data 104Coding and content analysis . 104Ethical issues 109Confidentiality and data handling 109Research relationship 111Conclusion .1124Chapter 4 A normative framework for the regulation of alternativeremittance systems .114Introduction .114Fundamental rights - a normative guide to governmental actionand the need for protection 116Imperative for action - preserving human security 121Securitisation - balancing liberty and security . 125Cosmopolitan constitutionalism - the foundation for emergingNorms . 129Alternative remittance systems – self regulation andnormative compliance 131Cosmopolitan networks and the protection of human security 132Self-regulation: adequacy of rights protection 134Balancing privacy and property rights .138Servicing the community – promoting financial inclusion 140A Case study of the Al-Barakaat remittance provider – assessing thenormativity and impact of international sanctions and the need forfinancial inclusion 144Somalia – a remittance dependent economy . 145The economic and social context of the Al-Barakaat listing 146Evaluating normative compliance . 147Continuing security concerns – terrorism and piracy . 4.3.14.3.24.3.34.3.4
4.3.5Developing financial capacity and inclusion .150VI4.3.5.1 Limitations to developing the regulatory capacity and promotion of socialinclusion in Somalia .1524.3.5.2 Conclusion as to normative compliance .1544.4UK remittance services – assessing normative compliance andfinancial inclusion 1554.4.1 UK models of operation 1584.4.2 The need for financial inclusion 1604.4.3 Normative compliance in the UK sector 1624.5.Modern approaches to securing normativity and financial inclusion ofremittance services .1664.6Conclusion 5.3.45.3.55.4Chapter 5 A critical analysis of the legal framework for theregulation of alternative remittance systems 174Introduction .174Criminalising terrorist finance – deterrence, prevention or symbolism175International obligations 176Terrorist financing offences . 178General versus specific laundering offences .181Seizure, restraint and forfeiture of terrorist funds .184Effectiveness of measures 186Sanctions and asset freezes - administrative or quasi-criminalMeasures .190Interference with fundamental rights 191Rectification - responding to protect fundamental rights 195International sanctions: evaluating effectiveness . 197UK measures - implementing international obligations .200The UK context - assessing effectiveness of the UK asset freezingregime in combatting terrorist finance 202Discretionary directions 204UK CTF measures – assessing effectiveness 205The application and scope of the MLR 2007 208Effectiveness of regulation . 214Supervision and sanctions 217Suspicious activity and reporting 219Guidance 222Evidence based typologies and behaviour profiling 223The effectiveness of the reporting regime .225Data sharing 226Conclusion . 23166.06.16.1.16.26.36.3.16.3.26.3.3Chapter 6 Analysis of fieldwork research .235Research . 235MSB operator group research sample .236MSB operators - a biographical overview .237Model of operation 243The identification and management of risk .247Identifying risks relating to terrorist financing 247Identifying risks relating to money laundering .253Indicators of suspicion 2.35.2.45.2.4.1
6.3.3.1 Suspicious activity reporting .4.16.5.56.5.66.5.76.6Effectiveness of regulation 262Impact of MLR and regulatory framework 268Attitudes to supervision and guidance 273Summary 279Regulator and stakeholder groups .282Biographical profile of regulator and stakeholder groups 283Model of operation 283Risk assessment and management . 288Detecting suspicious activity . 298Suspicious activity reporting 302Impact and effectiveness of the MLR 2007 305Attitudes to supervision and guidance .314Summary 320Conclusion apter 7 Conclusion .326Research aims . 326The challenge of the fieldwork and its limitations 327The UK MSB sector – model of operation 327Effectiveness of regulation for CTF 328Impact on consumers 330Supervision of the MSB sector 331Redefining the risk – CTF and alternative remittance services .332Normative compliance and coherence .326The UK regulatory framework .338Further research . 342Conclusion as to efficacy .344Bibliography .345Appendix 1 404Appendix 2 .405Appendix 3 406Appendix 4 431Appendix 5 432
VIIIList of TablesTable 1 Population statistics and an ethnicity distribution 2001-2011 .76,77Table 2 The geographical construction of the operator interview groups .100Table 3 Home Office statistics 2001- 2013 187Table 3 MSB operator group of biographical data and classification . . 238
IXAbbreviationsADBAsian Development BankAIAIAl-Itihaad Al-IslamiyaAMLAnti-Money LaunderingAPECAsia Pacific Economic GroupAPIAuthorised Payment InstitutionARSAlternative Remittance Systems3MLDThe Third EU Money Laundering DirectiveBPEBlack Peso ExchangeBNIBearer Negotiable InstrumentsBOPBalance of PaymentsCDDCustomer Due DiligenceCTFCounter Terrorist FinanceCMIRCurrency Monetary Instrument reportsCMPClosed material proceedingsCNPTCustomer Not Present TransactionsCTCorCounter-Terrorism Co-ordinatorCTCCounter -Terrorism CommitteeCTEDCounter-Terrorism Executive DirectorateCTRCurrency transaction ReportCTSCounter Terrorist strategyDFIDDepartment for International DevelopmentDPADeferred Prosecution AgreementGORGovernment Office RegionsGTAGlobal Terrorist AssessmentGTOGeographic Targeting OrdersGAGeneral Assembly United NationsGDPGross Domestic ProductFATFFinancial Action Task ForceFSBFinancial Stability BoardFSRBFATF styles Regional BodiesFDIForeign Direct InvestmentFFTFormal Fund TransferFSAFinancial Services Authority
FSMTFinancial Services Market TribunalXHMRCHer Majesty’s Revenue and CustomsICPOInternational Criminal Police OrganisationICRGInternational Cooperation review Group (FATF)IEEPAInternational Emergency Economic Powers ActIMFInternational Monetary FundIRSInformal Remittance SystemsIVTSInformal ValueTransfer System(s)JMLSGJoint Money Laundering Steering GroupJTACJoint Terrorist Analysis CentreKYCKnow Your CustomerMLMoney launderingMLDMoney Laundering DirectiveMLRMoney Laundering RegulationsMLSOAMiddle Layer Super Output AreasMSBMoney Service BusinessMSMember StateNPONon-Profit OrganisationsNSSNational Security StrategyNSRANational Security Risk AssessmentOCGOrganised Crime GroupsOECDOrganisation for Economic Cooperation andDevelopmentOFACOffice of Foreign Assets ControlONSOffice National StatisticsOSCTOffice for security and counter- terrorismPSRPayment Services RegulationPSSPublic Sector SupervisorsRBARisk Based ApproachRICUResearch Information and Communications UnitSARSuspicious Activity ReportsSCSecurity Council (United Nations)
SCeSanctions CommitteeXISPISmall Payment InstitutionsSTRSuspicious Transactions ReportSOCASerious Organised Crime AgencyTFTerrorist financeTFTPTerrorist Finance tracking ProgrammeUAEUnited Arab EmiratesUNUnited NationsUNSCUnited Nations Security Council (SanctionsCommittee)UNSCRUnited Nations Security Council resolutionXII
Chapter 1The modern terrorist threat – reconsidering the suppression of terroristfinance.1.0 Introduction and contextRemittance systems are century old systems that pre-date western formalbanking systems. Whilst having a common core method of operation, theyare subject to regional and local variations derived from local customs andpractices reflecting the social context of their operation. Alternativeremittance systems (ARS) are culturally entrenched value transfer systemsthat remain in use in third world and developing countries, where access tomodern banking services is limited. They are also commonly used by themigrant diaspora now settled in developed states, to send money ‘backhome’ to support their families. ARS have provided a central lifeline fordeveloping countries in assisting in the dissemination of much neededfinancial development and humanitarian aid. The cultural context of theiroperation and association with specific cultural and ethnic groups, and theirinformality, has been misunderstood by western economies with developedand sophisticated financial sectors. ARS came under scrutiny in the wake of9/11 where concerns focused on their potential misuse for terrorist finance,including the US assertion that the funds for the 9/11 attack were in parttransferred using these systems. The US responded swiftly in regulatingthese systems, with the expectation that the international community wouldreplicate this action. Their subsequent exposure to wider internationalscrutiny has been a catalyst to their regulation, prompting the recognition byremittance providers of the need to promote a greater understanding of thesesystems generally. Remittance operators in the United Arab Emirates (UAE)agreed through the ‘Abu Dhabi declaration’, 1 on the adoption of internationalFATF standards.1Abu Dhabi Declaration on Hawala , International Conference on Hawala UAE, 16 May 20021
This thesis considers the impact of the UK anti-money laundering andcounter terrorist finance (AML/CTF) framework for the regulation of ARS.This chapter sets out the central research question and outlines the structureof this thesis, detailing the content and focus of each chapter and itscontribution to the originality of this work. This chapter reviews the researchto date into the nature and context of the operation of ARS, to justify thefocus of this thesis and identify its unique and original approach andcontribution to the research question.Furthermore, this chapter presents an overview of the relevant counterterrorist finance agenda and policy as a backdrop to the context of regulationof ARS at international and UK level, identifying the global concerns andinternational approaches to addressing the current terrorist threat. These arereviewed in light of the concept of ‘new style/model’ terrorism and the rise infundamentalist terrorism which informs both international and UK counterterrorist strategy (CTS), to which the suppression of terrorist finance is a keyelement. The relevant international stakeholders and their roles in supportingand driving the international counter terrorist finance agenda are identified inoutline, regarding their contribution to the post 9/11 counter terrorist finance(CTF) agenda. The chapter concludes with a review of the terminology usedto refer to these systems and provides a clear definition of ARS for thepurposes of this study.1.1 Aim of thesisThis thesis aims to consider the risks posed by ARS regarding their potentialmisuse for the laundering of terrorist funds. For the purposes of this study,misuse includes the deliberate and intentional transfer of funds in theknowledge of the terrorist purpose 2 by customers or ARS providers, andadditionally, where providers may be unaware of the terrorist purpose. The2Terrorism Act 2000 s18 defines the offence of laundering of terrorist property. s14 defines terroristproperty as including s14(1)(a) money or property likely to be used to the purposes of terrorism.2
general criminal misuse of these systems is also considered. This thesisaims to identify the risks posed by ARS systems, analysed in light of the ‘newmodel’ terrorism, which demands a review of existing legislation and policyapproaches to combating the suppression of terrorist finance, to ensure thatthey remain effective. ARS are analysed to consider whether the risks theypresent justify the need for their regulation. A normative framework of rightsand values is presented against which the regulatory framework for ARS iscritically appraised to review the effectiveness of CTF strategies forpreventing terrorism and its finance, and maintaining the balance betweenpreserving peace and security and the protection of fundamental humanrights engaged by these measures. The impact and effectiveness ofAML/CTF measures is investigated through fieldwork research, whichfocuses on the application of the MLR 2007 and their regulation of alternativeremittance services, termed Money Service Businesses (MSBs) within theUK.1.2 OriginalityTo date there has been little research into ARS; that which has beenundertaken has largely focused on the description of ARS from an ethnocultural perspective, mainly confined to their operation in areas of historicalorigin. Few studies have sought to investigate the effect of AML regulation onremittance services within an international context and there is no researchinto ARS operation in the UK, nor has research to date investigated theviews of remittance operators as to the impact of regulation on thesebusinesses.Research by Passas3 has focused on the collation of evidence as to thevulnerability of ARS misuse, with evidence of cited misuse confined togeneral money laundering. This research draws on this evidence to justify3N Passas, ‘Informal Value Transfer Systems and Criminal Organizations; a study into so-calledunderground banking networks’ (2004) SSRN December 1999 N Passas N, ‘Informal ValueTransfer Systems Terrorism and Money Laundering’ (2003) November Northeastern University.3
ARS regulation without reference to any specific jurisdiction or form ofregulatory regime. Research by Sharma 4 has explored the operation of ARSfrom a socio-cultural perspective considering both legitimate use and criminalmisuse of Hawala. This exploratory research has investigated thesocioeconomic factors influencing the use of Hawala providing a ‘descriptiveand multifaceted’ analysis of5ARS drawn from qualitative 6 interviews of asmall sample of twelve operators and twenty seven customers in the Punjaband Delhi areas of India.Qualitative research by Caroll for Interpol 7 was based on surveyquestionnaires and telephone interviews and focused on determining theextent of ARS activity in countries in the Indian sub-continent and the AsiaPacific region. This study aimed to ‘delineate the operational characteristics’of ARS and to classify these systems by their operational type, as eitherHawala/Hundi or Asian/Oriental systems. This classification was designed toidentify their prevalence, characteristics of operation and vulnerabilityaccording to their identified type, outlining the efforts of authorities as to theirregulation. This study did not assess the need for regulation nor did itevaluate any existing regulatory frameworks for ARS. The research aimed tocategorise methods of ARS operation by type, risk and prevalence overbroad geographical areas to identify and assess their operationalcharacteristics to indicate their potential misuse.Further research by Passas for the International Monetary Fund (IMF) 8focused on broad concerns arising from international and national regulationbut without reference to any specific jurisdiction. Maimbo has alsoinvestigated the regulation of Hawala within Afghanistan, but this study didnot address the issue of regulatory impact. 94D Sharma ‘Historical Traces of Hundi, Sociocultural Understanding,and Criminal Abuse of Hawala’September (2006) 16 (2) IJCJR 1035Sharma (n4)6Sharma (n4)7L Carroll, ‘Alternative remittance systems distinguishing sub-systems of ethnic money laundering inInterpol member countries on the Asian continent’ Interpol June (2004)8N Passas N, ‘Formalizing the Informal? Problems in the National and international Regulation ofHawala’ IMF Regulatory Frameworks for Hawala and Other Remittance Systems (IMF 2005)9SM Maimbo, ‘Challenges of regulating Hawala’ IMF Regulatory Frameworks for Hawala and OtherRemittance Systems (IMF 2005)4
Sharma has conducted descriptive and exploratory research into ARS inIndia, focusing on the historical origins of Hawala, drawing on the existingresearch and literature relating to these systems and their method ofoperation. This jurisdictional focus was problematic given that Hawala has forsome time been indirectly prohibited 10 in India, and has little application inthe UK context, and the research did not address the form and effectivenessof regulation.The only research to date that has addressed the effectiveness of regulationof ARS in relation to the prevention of money laundering and terroristfinance, is that by Rees 11 in Australia. This funded study investigated theviews of operators and customers and can be distinguished from the UKcontext, given the jurisdictional differences in the population compositionand the regulatory framework.Research by Muller 12 into the misuse of ARS for terrorist finance mergedconsiderations of the regulatory form and sources of fundraising alongside acritique of Hawala as a method of transfer. There was no examination of theCTS linked to the legislative aims and the impact of regulation in achievingthese outside a consideration of US policy. This research did not draw onfieldwork data to support its findings.The originality of this thesis lies in the investigation, through fieldworkresearch, of the impact and effectiveness of the regulatory regime. This isgained through fieldwork investigation of the views and attitudes of ARSoperators, and stakeholders who have an interest or role in theimplementation of the regulatory framework for CTF as applied to remittanceservices in the UK. The originality of this work is its focus on the CTF regime10The Foreign Exchange Regulation Act 1973 which criminalised hawala transactions was repealedbut the Foreign Exchange and Management Act 1999 The latter FEMA provision provide for afinancial civil penalty on breach of its provision prohibiting the transfer of acquisition of assets outsideIndia of transfer of assets from this jurisdiction.11D Rees, ‘Money Laundering and terrorism Financing risks posed by alternative remittance inAustralia’ Australian Government, AIC Research and Policy Series 106 (2010)12stSR Muller, Hawala: An Informal Payment System and its Use to Finance Terrorism (1 edn,Lightening Source 2006)5
for ARS, drawing on fieldwork research to assess the impact andeffectiveness of the regulation of ARS in the UK with particular reference tothe MLR 2007.This work intends to consider the effectiveness of the current AML/CTFregulatory regime in the UK for enabling the detection of terrorist funds toenable their seizure and confiscation. Whilst there has been some limitedresearch by Vaccani 13 into ARS and terrorist finance from a riskmanagement and regulatory perspective, this was limited to a considerationof Financial Action Task Force (FATF) Special Recommendation VIcontrasting licensing and registration regimes. By comparison, the originalityof this work lies in a critical evaluation of the UK legislative framework as toits compliance with the normative framework presented, in ensuring CTFmeasures are justified and operate proportionately in protecting humanrights.This work will consider the justification of, and necessity for, specificlegislation for the suppression of terrorist funding, rather than resorting togeneral AML provisions, which are considered in the context of the nexusbetween organised crime 14 and the funding of terrorism.This thesis aims to identify and consider any cultural factors relevant to theusers and operators of these services in the UK, assessing the relevance ofthis context to the relationships between the service users, operators andregulators.The impact of regulation on these relationships and theoperational context are considered to assess the effectiveness of regulationin controlling the risk of terrorist finance that these systems present.Respect for fundamental human rights is at the core of any democracy; theprotection of these rights is increasingly articulated within counter terrorismpolicy and strategy at international and regional level. This study will review13M Vaccini, ‘Alternative remittance Systems and Terrorist Finance; Issues in Risk management’ PaperNo.180, (World Bank Nov. 2009)14I Bantekas,‘Current Developments: the International Law of Terrorist Finance’(2003) 97 Am.J Int'l L315, 3186
the current AML/CTF framework within the UK in the context of theinternational CTF agenda, to consider the international obligations by whichthe UK is bound. The effectiveness of UK CTF measures and theirconcordance with the protection of the normative values presented isconsidered and necessitates an enquiry into the relationship bet
review of national and international counter terrorist strategies. This work has sought to investigate the historical origins and model of operation of traditional Hawala, considering the risks these system pose for assis ting terrorist financing. A normative framework has been presented against which counter terrorist strategies
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