“The International Crime of Money Laundering: A debate
regarding the inclusion of this global crime under the
jurisdiction of the International Criminal Court”
Wednesday 11 October 2009, Centre for
Criminology, Oxford University
(1:00 – 3:00 PM)
Abstract
Taking an international and comparative perspective, the MSt research
argues that the definition of the international crime of ML as drafted in
the international conventions is inadequate in dealing with ML operations
because it is not uniformly applied in every country.
Based on that conclusion, the research will intend to design the adoption
of a uniform act, elaborated in a future international convention that
generates a kind of fusion or combination between the different ‘models
of law’ that every country can adopt at the national level. In order to
design one and uniform ‘model of law’ we need to reach the necessary
consensus throughout the key elements that are part of the definition of
the international crime of ML.
This consensus should also analyse the inclusion of a uniform definition
of this global crime under the jurisdiction of the International Criminal
Court (ICC). If we do not reach the necessary consensus, criminal
organizations could continue finding the gap in order to persist in doing
their ‘dirty’ activities.
Agenda
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7.
What is Money Laundering?.
International conventions (hard law instruments)
Legal definition of the ‘international crime of ML’ as
drafted in the international conventions.
Towards a new international convention with a
uniform definition of the ‘international crime of ML’.
Cost - benefit analysis on drafting a uniform
definition of the international crime of ML.
Why include a uniform definition of this
international crime under the jurisdiction of the ICC?
Cost – benefit analysis of this last suggestion.
1) What is Money Laundering?
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FATF: ‘Process whereby criminals attempt to disguise and legitimate
their ill-gotten gains of crime’. Simpler: making money coming from a
criminal source A, look like it comes from a legitimate source B.
Why criminals choose ML?: (i) commission “predicate offence”, (ii)
accumulation significant amount of “dirty” money, (iii) First dilemma:
transfer or not “dirty money” to a ML process, (iv) Second dilemma:
self-laundering or not.
Main aims of process of ML: (i) concealment process: separate and
disguise criminal origin of assets by giving it an apparently legitimate
source, (ii) cleaning process: enjoy ill-gotten assets by purchasing
luxury assets in the legal economy.
Main aims of ‘reverse ML’ or ‘dirtying process’: (i) concealment
process: separate and disguise legal origin of assets; (ii) dirtying
process: enjoy legal assets by purchasing assets in the ‘informal’ or
‘parallel’ economy (e.g., some investments of criminal groups could be
purchased in the underground economy).
2) International conventions (hard law
instruments)
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1980s: UN Vienna Convention (adopted 1988, entered into force 1990).
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1990s: EU “Strasbourg Convention” (1990, entered into force 1993) and UN
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After 11 Sept 2001 - 2002: (i) UN Convention Against Financing of
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2003: UN Convention against Corruption (2003, entered into force 2005).
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2005: EU Convention against ML and FT (2005, entered into force June
“Palermo Convention” (2000, entered into force Sept. 2003).
Terrorism (1999, entered into force April 2002), (ii) UNSC Resolution 1373
(adopted 28 Sept. 2001 – Chapter VII of UN Charter), (iii) Inter-American
Convention against Terrorism (2002, entered into force Oct. 2003).
2008).
3) Legal definition of the ‘international crime of ML’ as
drafted in the international conventions.
The international crime of ML is defined as follows:
(a) The conversion or transfer of property,
Variant 1: by any person who knows or should have known
Variant 2: by any person who knows or suspects
Variant 3: by any person who knows, should have known or suspects that
such property is the proceeds of crime, for the purpose of concealing or
disguising the illicit origin of such property or of assisting any person who
is involved in the commission of the predicate offence to evade the
consequences of his or her actions.
(b) The concealment or disguise of the true nature, source, location,
disposition movement or ownership of or rights with respect to property,
Variant 1: by any person who knows or should have known
Variant 2: by any person who knows, should have known or suspects that
such property is the proceeds of crime.
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3) Legal definition of the ‘international crime of ML’ as
drafted in the international conventions (Cont.).
(c) The acquisition, possession or use of property,
Variant 1: by any person who knows or should have known
Variant 2: by any person who knows or suspects
Variant 3: by any person who knows, should have known or suspects [option:
at the time of receipt] that such property is the proceeds of crime.
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The variable regarding the criminalization of ‘self laundering’ conducts:
Variant 1: the offence of ML shall also apply to persons who have committed
the predicate offence.
Variant 2: The offence of ML shall not apply to persons who have committed
the predicate offence.
4) Towards a new international convention with a
uniform definition of the international crime of ML
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The mens rea element: with intent, admitting dolus directus and dolus eventualis (no
negligent) both on the ‘origin of the crime’ and the ‘ulterior intent’ to launder.
The predicate offence of ML: ‘all offences’ (including crime of tax evasion), but
only punishable if the value of the assets involved on the operation of ML is over an
specific economic value.
The criminalization of ‘self-laundering’: a ML offence that applies to the person
who committed the predicate offence.
The evidence that requires the term ‘proceeds of crime’ - What about ML as a
predicate offence of ML?
Abolition of the term ‘proceeds of crime’ – Why not criminalize also the ‘proceeds
of legal’ activities?
The different actions of laundering (e.g., ‘conversion’, ‘transfer’, ‘concealing’,
‘disguise’). Why not include also ‘… in any other way’?
Punishment: fine and imprisonment? What economic value for the fine? (e.g., two to
ten times the amount of the ML operation). What maximum and minimum of
imprisonment (e.g., 4-8 years, 2-10 years).
5) Cost – Benefit analysis on stating a uniform
definition of the int. crime of ML
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Cost: reach a general consensus between several countries.
Benefit: (i) Better chances of detecting criminal groups when
they shop around the world trying to find the best legal
jurisdiction for laundering;
(ii) More efficient processes of request of information and
extradition (mutual legal assistance) between countries.
(iii) Each country keeps the option to state the limits and
extension of the principle of ‘dual criminality’ – The sovereignty
of the countries is respected.
(iii) An easier and more effective fight against ML operations in
the world.
6) Why include a uniform definition of this crime
under jurisdiction of ICC?
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International versus national jurisdiction: (i) The duty of
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Social values protected by int. crime of ML: to defend the society as a whole
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bring ML perpetrators to
justice rests solely on national criminal justice systems. Without adequate domestic capacity to
discharge this duty, international anti-ML efforts almost certainly fall; (ii) some governments
could turn a blind eye to ML operations, arguing that ML makes revenue to their jurisdiction
(Takat, 2007); (iii) ML is a trans-border and mutable process, so the prevention and combat of
this process is difficult for national criminal justice systems.
from the expansion of criminal organizations. One purpose of this criminal groups is to accrue
profits and accumulate wealth and power. The accumulation of profits promotes the expansion
of criminal organizations, so they can continue threatening the global socio-economic and
democratic system (See, e.g., Preamble ‘Vienna Convention’ and Res. 55/25 adopting ‘Palermo
Convention’).
Main purpose of ICC: this Court has jurisdiction over ‘serious’ cases that ‘concern’ the
whole international community (Preamble of the ICC Stature). In particular, ‘when committed as
part of a plan or policy or as part of a large-scale commission of such crimes’. ML is a ‘serious’
crime that, according to international conventions, ‘concerns’ the whole international community
(Important: the predicate offence of ML could be ‘all offences’ but with a HIGH punishable
amount of values).
7) Cost-benefit analysis of this last suggestion.
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Cost: reach consensus among several countries not only in drafting a
uniform definition of the international crime of ML but also in including this
uniform definition under the jurisdiction of the ICC.
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Benefits: (i) structure a more effective fight against ‘criminal organizations’
that commits serious crimes of genocide, crimes against humanity and war
crimes: profits is ‘the life blood’ of any criminal enterprise; (ii) protect socioeconomic global regime: ML affects, principally ‘fair competition’; (iii) reduce
the degree of ambiguity and vagueness of the definition of the international
crime of ML; (iv) structure a more effective fight against ML.