Confiscation of Terrorist Funds: Can the EU Be a Useful Model for ASEAN?

Abstract

The counter-terrorist financing regime has been developed and diffused rapidly since the 9/11 attacks. The two central components of the regime are criminalization of acts of financing and confiscation of terrorist funds. These measures, which duplicate US laws on terrorist financing, have been designed to impose liability on, and confiscate assets and property of, those who finance or associate with terrorism regardless of whether there is a link between their act of financing or associating and a terrorist act. In the absence of such connection between the offense of terrorist financing and its subsequent crime of terrorism, a question arises: What is the legal basis for imposing liability on suspected financers and confiscating their assets and property? This ambiguity has never been properly addressed by the creators of the regime or by those who promote the regime. This paper explores whether and how this ambiguity has been addressed at the regional level among the Member States of the Association of South East Asian Nations (ASEAN) where the agenda of countering terrorism has been largely shaped by external actors, mainly the Western states and international organizations established and controlled by them. Considering the fact that counter-terrorism has entered the agenda in the political dialogue between the EU and ASEAN, it is worth examining whether EU laws and policies on terrorist financing offer themselves as a model for ASEAN to emulate. The paper concludes that the EU, a value-based community, has failed to deal with the issue of terrorist financing effectively. This has resulted in draconian and unjustified overreach of the forfeiture laws and policies which, in many ways, are inconsistent with the rule of law, human rights, democratic values and good governance.