المعالجة القانونية لجريمة غسل الأموال في ضوء أحكام القانون الدولي

زيدان, مسعد عبدالرحمن (2017-09)

Other

الملخص: تهدف الدراسة إلى بيان أهمية اتخاذ التدابير اللازمة لمواجهة جريمة غسل الأموال، خاصة من منظور أحكام القانون الدولي، وذلك لأن جريمة غسل الأموال من الجرائم العابرة للحدود، وتمثل نشاطًا للعصابات الإجرامية الدولية التي تهدف إلى تبييض الأموال المتحصلة من جرائم أخرى كالمخدرات واختلاس المال العام وغرها من الجرائم الأخرى التي تدر أموالً كثرة، وقد أكدت الإحصاءات أنها بلغت 500 مليار دولار في العام، ما كان له أثر خطر يل على عمليات التنمية في العديد من الدول خاصة النامية ومدى تأثرها على السلم والأمن الدوليين في ضوء أحكام القانون الدولي. ولذا أشرنا في هذه الدراسة إلى الجهود الدولية على مستوى المنظمات الدولية والحكومات المختلفة للحد من هذه الجرائم بما يسمح لهذه العصابات بالاستفادة من الأموال المتحصلة من هذه الجرائم. الكلمات المفتاحية: جريمة غسل الأموال القانون الدولي التعاون الدولي المنظمات الدولية الاتفاقيات الدولية المؤسسات المالية...................... Legal Treatment of the Money Laundering Crime Within the Context of the Provisions of International Law By Dr. Mosad Abdel Rahman Zidan Kassem Professor of Public International Law, College of Criminal Justice, Naif Arab University for Security Sciences Introduction First of all, we must stress that if the funds are the proceeds of criminals conduct, their entrance into the known financial channels makes it difficult to detect their purity. Money-laundering began as individual work and such actions developed into criminal organizations across countries. This is because the money-laundering process involves large amounts of money at the global level (more than 500 billion dollars annually). Some States may tolerate their supervisory procedures, aiming to increase investment and make a movement in their economic development. Such funds represent not necessarily investment, but these funds are entered so that they can get out as soon as possible. The purpose of this process is to legitimize those funds and to obscure their criminal reality. This process has economic, political and social risks, encouraging the international community to work on combating this crime. The real intent is to deprive the criminal organizations of using illicit funds. The danger of such crime is increased by the use of advanced technology in planning and execution, especially in the light of the enormous financial potential of criminal conducts. The offence of money-laundering is nationally and internationally criminalized. The penalty of persons who commit it requires the availability of the material and moral elements, with consideration of the aggravating circumstances of punishment similar to any other crime. This crime should be tackled with decisive measures, so it can be controlled. Moreover, the regional and international efforts should be collaborated through the pertinent international organizations. Research Problem Based on the preceding generalizations, following points represent the research problemsــــــــ money laundering has increased significantly; the international criminal organizations use the advanced technology in resorting to the crime of money laundering; the underlying objective is to legalize them; and the inability of States, in particular, and the international community, in general, to face this problem. This is despite the political and social risks of this crime and its impact on the economies of countries, especially developing countries. Hypothesis of the Problem 1- The deficiency of the States domestic legislation in imposing deterrent penalties on the perpetrators of the crime of money laundering. 2- Loose control of financial institutions and banks over the crime of money laundering. 3- Political and administrative corruption within some countries. 4- Weak cooperation and security coordination among countries in combating the crime of money laundering. 5- The regional organizations have assumed no role to put an end to this crime. 6- Use of modern technology by the international criminal organizations to promote money laundering and to include such money in economic activities for legitimization. 7- States tolerate their control procedures, aiming to increase investment and make a movement in their economic development. 8- Lack of commitment by some countries to the norms of international cooperation on combating money laundering under the pretext of encouraging foreign investment to solve their economic problems. Research Objective: To protect countries and economies of international community against the risks of money laundering which represents the outcome of criminal conduct. This is in addition to give role to the regional organization to put an end to this crime. Applied Approach: The inductive approach, which is based on extrapolating the reality of money laundering operations at the international level, is used to describe the risks to the economies of countries and manner of combating the criminal gangs at the regional and international levels. Research Plan: Chapter One: Historical development of the crime of money laundering and its nature. The first section: The historical development of the crime of money laundering. The second section: The nature of the crime of money laundering. Chapter Two: The causes of the crime of money laundering and its effects and elements. The first section: The causes of the crime of money laundering. The second section: The effects of the crime of money laundering. The third section: Elements of the crime of money laundering. Chapter Three: Mechanisms to combat the crime of money laundering. The first section: Internal mechanisms on combating the crime of money laundering. The second section: Regional mechanisms on combating the crime of money laundering. The third section: Global mechanisms on combating money laundering crimes. Conclusion: It includes the following:  Findings.  Recommendations. Conclusion: The study revealed the conflict between States and the international and regional bodies on the one hand, and the international criminal organizations on the other hand, with regard to the crime of money-laundering. Despite the efforts of States and the international community, the crime of money-laundering continues to increase, especially since these criminal gangs have human cadres and high technology used in the implementation of its crime. Such criminal gangs were able to recruit many people, with weak souls of politicians and senior officials, in banks and financial institutions of both developing and developed countries. The latter helped them to penetrate the security and legal procedures in many countries, whether advanced or developing. Findings: 1- Individual States are unable to combat this crime, because some international criminal organizations carry out the money-laundering crime by their potential which are far superior to that presented by some States. Moreover, some international criminal organizations have large funds which facilitate their criminal activity at the international level. 2- The necessary collective action at the international level through coordination between States and relevant international organizations to combat the money-laundering crimes are important. Recommendations: First: Recommendations for Countries: 1- The local authorities should develop the necessary rules and regulations to combat the crime of money laundering. Also, there should be severe punishment for the perpetrators of this crime. Likewise, there should be the development of awareness programs for the risk of this crime. 2- Supervision and control of the mass movement of deposits and the money transfer, lending and credit cards services, and other actions related to the flow of money across borders or within the State shall be developed to ascertain their legitimacy. 3- Use of alias accounts in any banking or financial institution should be prevented. And to confirm the principle of "Know your customer " is necessary. Moreover, the system of confidentiality of accounts should be abrogated. 4- Banking and financial institutions should maintain all internal and international records and operations, so that they may be referred to in the case of a request from the investigative or judicial authorities. This is for a period of time to be determined by States in accordance with their economic conditions and the nature of work in such institutions. 5- The latest developments regarding money laundering crimes should be informed. Moreover, the development of periodic training programs for financial and banking institutions staff as well as security men and the relevant supervisory bodies should be conducted. Second: Recommendations for the Regional Organizations: 1- Regional bodies to assist States in combating money laundering crime should be established. 2- Early warning and reconnaissance systems that will provide States with the necessary information on the activities of international criminal gangs so that they can take the necessary preventive measures should be established. Third: Recommendations for International Organizations: 1- There should be coordination between the international and regional organizations in combating money laundering crimes. 2- International conferences should be conducted to inform the Member States of the latest developments in the field of committing such crimes and the manner of combating them.