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[OPINION] Turkey and the FATF’s approaches to ‘financing of terrorism’

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Ahmet Eren*

On Tuesday, Oct. 18, 2022, Turkey saw the mass detention of members of the Gülen movement, a faith-based group inspired by Turkish cleric Fethullah Gülen. According to the state-run Anadolu news agency, police carried out raids as part of “terrorism financing investigations of chief public prosecutors’ offices in 81 provinces.” After detention warrants were issued for 742 people, 678 people, including 18 civil servants, were detained. While 86 of those sought were released without charges, 373 people were released under judicial supervision and 219 detainees were arrested and jailed. (On the day of writing, operations were still underway to apprehend the other “suspects.”)

The operations were a joint effort by the Financial Crimes Investigation Board (MASAK), the Anti-Smuggling and Organized Crime, Counterterrorism, Cybercrime and Intelligence Departments of the Turkish police. They were allegedly directed against the “financial structure of the Gülen movement,” which the government refers to as the “Fethullahist Terrorist Organization” (FETÖ), and the detainees were charged with “financing terrorism.”

The detention of hundreds of people in one day for their actions, which are in no way punishable under current Turkish law, and the public announcement of these actions by the interior minister, accompanied by security bureaucrats, in a manner resembling a publicity stunt, show that the indifference of government officials and the serious human rights violations in the country have taken a genocidal turn.

The detainees are reportedly the family members and relatives of political prisoners and of those who were dismissed from their jobs by decree-laws after an attempted coup on July 15, 2016. Furthermore, the alleged charges are apparently acts of either receiving financial assistance or distributing financial assistance to those in need among them.

It is well known that the government has been persecuting its political opponents since the December 2013 corruption and bribery investigations, which targeted some government ministers and the inner circle of then-prime minister and current president Recep Tayyip Erdoğan. Erdoğan’s crackdown on his opponents intensified after the controversial coup attempt in July 2016, for which the president blames the Gülen movement. Since then, the current Turkish government, admittedly, has been carrying out a “witch hunt” against all its opponents. So far, according to Ministry of Justice statistics, around two million people have been investigated in Turkey based on allegations of terrorism. Hundreds of thousands were imprisoned for retroactively criminalized acts and sentenced in disregard of principles such as the prohibition of retroactivity, individual criminal responsibility and the presumption of innocence. Tens of thousands of people, including pregnant women, the elderly, the sick and the disabled, are still being held in prisons, even though this is clearly against the law and the Turkish constitution.

It has been expressed on international platforms for many years that the Turkish Anti-Terror Law is interpreted very broadly and that the broad definition of terrorism that includes crimes against the constitutional order and internal and external security of the state has victimized people. However, the practices of the current government and the decisions of the pro-Erdoğan judiciary are no longer within the framework of a “broad interpretation” of the laws but have become a strategy of criminalizing and punishing Gülenists for their actions, which under no circumstances constitute a crime.

One can trace the Turkish government’s attempts to form a legal basis for its current actions back to a piece of legislation, titled “Preventing Financing of Proliferation of Weapons of Mass Destruction,” passed by parliament in December 2020.

“The new legislation covers individuals who stand trial under the Law on the Prevention of the Financing of Terrorism and also refers to the Anti-Terror Law. The definition of terrorism in this law is quite ambiguous, problematic and far from international standards. Many rights defenders have been charged under this law,” Tarık Beyhan, the director of Amnesty International in Turkey, was quoted by Deutsche Welle (DW) as saying at the time.

In July 2021 the Venice Commission, the Council of Europe’s advisory body on constitutional matters, adopted an opinion on Law No. 7262, which entered into force on Dec. 31, 2020 and purports to combat terrorism financing, which said, “The Venice Commission is aware of the challenges faced by Turkey in connection with terrorism. Measures taken to fight terrorism must, however, be ‘necessary in a democratic society’, and in compliance with human rights obligations and the Rule of Law. The Venice Commission observes with concern that in the wake of the failed coup d’état of July 2016, the frequent and broad application of anti-terrorism laws has had serious consequences for civil society in Turkey.”

The opinion of the commission further read, “The Commission recognises that there is a risk of funds being used to finance terrorist activities. However, in their indiscriminate scope the new legal provisions on aid collection do not seem to meet the requirements of necessity and proportionality. On the other hand, the ambiguity in the wording of the amendments of the law on Aid Collection … and the lack of clear and objective criteria for permit applications … may have a negative impact on legitimate fund-raising activities of NGO’s and thus violate the right to freedom of association. … The proposed system of audits transgresses the boundary of what is necessary and proportional; measures introduced seem to be overly far-reaching and will have a chilling effect on NGOs, due also to the increased sanctions for breach of auditing obligations.”

FATF’s approach

The Financial Action Task Force (FATF) is an intergovernmental organization founded in 1989 on the initiative of the G7 to develop policies to combat money laundering. In 2001, its mandate was expanded to include terrorism financing. The objectives of the FATF are to set standards and promote effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and other threats. The FATF is a “policy-making body” that works to generate the necessary political will to bring about national legislative and regulatory reforms in these areas. Since 2000, the FATF has been creating “black lists” and “gray lists” and urging the countries on these lists to adopt FATF-compliant regulations.

Turkey was put on notice by the body in a report published in December 2019. While it said that Ankara understood “the risks it faces from money laundering and terrorist financing,” it found “serious shortcomings in the country’s framework to combat these crimes.”

The Turkish authorities’ understanding of terrorism and terrorist financing is manifest in their practices over the last few years as they use these labels as a pretext to crack down on political opponents.

Now, let’s take a look at what the FATF — one of the most influential and authoritative institutions in the international arena on the financing of terrorism — has set as criteria for the financing of terrorism.

The FATF placed Turkey on the watch list known as the “grey list” in 2021 for failing to comply with its anti-money laundering and combatting the financing of terrorism (AML/CFT) standards, and kept the country on the list for 2022. FATF President Marcus Pleyer, in a statement on the decision in 2021, stressed that “Turkey needs to show it is effectively tackling complex money laundering cases and show it is pursuing terrorist financing prosecutions … and prioritising cases of U.N.-designated terrorist organisations such as ISIL [Islamic State in Iraq and the Levant] and al Qaeda.” His remarks are consistent, albeit indirectly, with the facts about the abuse of the AML/CFT system directed against opponents of the Turkish government.

Turkey’s Ministry of Treasury and Finance and the Ministry of Interior, on April 6, 2021 and on December 20, 2021, jointly published two different asset freeze orders in the Official Gazette. The lists published consisted of the names of 659 people allegedly linked to the Gülen movement. When such decisions of the executive are taken into consideration together with reports of international organizations and NGOs concerning Turkey’s slide away from human rights and the rule of law, one can say that the asset-freeze orders issued by the Turkish government are politically motivated, unfounded and unlawful. The orders published do not comply with any of the international standards on anti-money laundering and combating the financing of terrorism. They have simply been issued to abuse the international financial system to persecute Turkish dissidents living abroad.

As inferred from the asset freezing decisions of April 2021, numbered 2021/1, and December 2021, numbered 2021/5, of the 1,156 individuals sanctioned by Turkey, 57 percent (659 individuals) were listed for links to the Gülen movement, 13 percent (150 individuals) for links to ISIL and 2 percent (22 individuals) for links to the Al-Nusra Front and al-Qaeda.

In order to determine whether someone can be associated with the financing of terrorism, it is important to determine what the risk of Terrorism Financing (TF) is. According to the FATF, a Terrorism Financing (TF) risk can be seen as a function of three factors: “threat, vulnerability, and consequence” It is the risk that funds or other assets, in the form of legitimate or illicit funds or other assets, will be raised, moved, stored, or used in or through a jurisdiction for a terrorist or terrorist organization.

In order for an act to be considered a “terrorist financing threat,” the financial activities of organizations or individuals must be used for terrorist purposes. Those detained in the recent operations in Turkey are individuals who are trying to help their relatives in prison or the children of victimized families like their own for purely humanitarian purposes. The fact that there is no information/documentation that the aid collected was used for terrorist purposes makes this claim both false and defamatory. It is also a fabrication of a crime.

The concept of TF vulnerability comprises elements that can be exploited by threat actors or that may support or facilitate their terrorist activities. People who collect or distribute aid do not have any activities that would constitute a basis for terrorist financing under AML/CFT in any field, nor do they pose a threat. This is because the people in need of assistance are relatives or friends of people imprisoned on political charges. In similar operations in the recent past, aid collectors have been accused in the same way. Among the materials presented as evidence of a crime were bottles of sunflower oil, tea, sugar, pasta, sanitary supplies and a few kilograms of flour, enough to feed a family in need for a month. The police seized the warehouse of a businessman where essential items were stored to be distributed to families in need.

In the TF context, consequence refers to the impact or harm that a TF threat may cause if eventuated. When the financial activities of fundraisers for social aid and solidarity are assessed in terms of their consequences, it is clear that they have a positive impact on members of a community demonized by the current government, prohibited from exercising their economic and social rights and condemned to hunger and misery, i.e., social death.

According to the FATF, a TF risk assessment should generally cover all aspects of raising, moving, storing and using funds or other assets (including goods, vehicles, weapons, etc.) to meet the needs of a terrorist or terrorist organization. In the case of recent detentions in Turkey, the individuals charged with TF for fundraising have not been involved in any of the financial activities highlighted as necessary for the risk assessment.

It should also be noted that of the 600,000 people who have been labeled “terrorists” by the current administration and detained since the 2016 abortive putsch, not one of them has shown the slightest resistance to law enforcement officers in the course of arrest/detention. Among those detained as “terrorists” are some 50,000 police and soldiers who have been branded as such and imprisoned for refusing to carry out the unlawful and criminal orders of the government. They have not offered even the slightest resistance, let alone engaged in an armed or unarmed confrontation with law enforcement. No criminal elements were found during searches of their clothes, homes and workplaces.

In short, any TF risk assessment of individuals collecting and disseminating financial and/or material aid is groundless by all manner of means, since their financial activities do not fall within any of the threat, vulnerability and consequence requirements specified by the FATF. According to the FATF, when subjecting such individuals to accusations of terrorism financing, the authorities should demonstrate credible grounds in order to ensure they are not interfering with their legitimate activities. From this point of view, there is no concrete justification or definition to show these individuals’ actions constitute either a crime or a threat.

It is about the political games of a government that does not want its corruption exposed in December 2013 to be talked about, that wants to prolong its power in order not to be held accountable before the law, that creates internal and external problems in order to prolong its power, that constantly creates enemies by blaming a series of internal and external actors for these problems, and that in this way seeks to consolidate its own supporters.

*S. Ahmet Eren was assistant director of the INTERPOL General Secretariat from 2009 to 2014.

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