Money-laundering is the processing of criminal proceeds to disguise their illegal origin. For instance, a drug trafficker might buy a restaurant to disguise drug profits with the legitimate profits of the restaurant. In this way, the drug profits are "laundered" through the restaurant to make the income look as if it was earned lawfully. Money-laundering is crucial to organized crime operations because offenders would be discovered easily if they could not "merge" their illegal cash into, for instance, a legal business, bank, or real estate (Soudijn, 2014; Malm and Bichler, 2013).
The crucial need to conceal organized crime activity was addressed by articles 6 and 7 of the Organized Crime Convention. Article 6 requires State parties to criminalize money-laundering, while article 7 refers to measures to combat money-laundering.
Criminalization of the laundering of proceeds of crime in article 6 of the Organized Crime Convention
1. Each State Party shall adopt, in accordance with fundamental principles of its domestic law, such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:
(i) The conversion or transfer of property, knowing that such property is the proceeds of crime, for the purpose of concealing or disguising the illicit origin of the property or of helping any person who is involved in the commission of the predicate offence to evade the legal consequences of his or her action;
(ii) The concealment or disguise of the true nature, source, location, disposition, movement or ownership of or rights with respect to property, knowing that such property is the proceeds of crime;
(b) Subject to the basic concepts of its legal system:
(i) The acquisition, possession or use of property, knowing, at the time of receipt, that such property is the proceeds of crime;
(ii) Participation in, association with or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the offences established in accordance with this article.
Article 6(1) of the Convention requires that each State party criminalize money-laundering. Criminalization not only allows national authorities to organize the detection, prosecution and repression of the offence, but also provides the legal basis for international cooperation among police, judicial and administrative authorities, including mutual legal assistance and extradition.
The Organized Crime Convention seeks to establish uniformity for the intolerance for money-laundering, which serves to conceal organized crime activity. In article 7, requirements for comprehensive domestic regulatory and supervisory schemes for banks and non-bank financial institutions are set forth, as is strong guidance for cooperation and the exchange of information at the national and international levels to investigate suspected money-laundering activity.
The money-laundering cycle can be broken down into three distinct stages; however, it is important to remember that money-laundering is a single process. The stages of money-laundering include:
The placement stage represents the initial entry of the proceeds of crime into the financial system. Generally, this stage serves two objectives: it relieves the criminal of holding large amounts of cash obtained illegally; and it inserts the money into the legitimate financial system. During this stage, money launderers are most vulnerable to being caught, because placing large amounts of cash into the legitimate financial system may raise suspicions.
The layering stage comes after the placement stage and it is sometimes referred to as "structuring." This is the most complex money-laundering stage and often entails moving the illicit funds internationally. The primary purpose of the placement stage is to separate the illicit money from its source. This is done through a sophisticated process involving layering financial transactions, whose final goal is to conceal the audit trail and break the link with the original criminal activity.
The final stage of the money-laundering process is termed "integration." During this stage the money is returned to the perpetrators from what seems to be a legitimate source. The criminal proceeds, that were initially placed as cash and layered through a number of financial transactions, are now fully integrated into the financial system and can be used for any legitimate purpose.
Anti-money laundering laws generally require the recipients of funds to exercise the reasonable care expected in a financial transaction. There have been many significant cases involving banks moving money internationally without exercising proper due diligence in knowing their customers or the source of the funds. Given the threats of transnational crime, corruption, and terrorism, many countries have expanded their money-laundering control efforts beyond banks, to include other businesses that might exchange or move large amounts of cash (e.g., check-cashing companies, money transmitters, jewellers, pawnbrokers, casinos, credit card companies, traveller's check and money order issuers).
The Financial Action Task Force (FATF) is an independent intergovernmental body that develops and promotes policies to protect the global financial system against money-laundering. In 2003, the FATF issued an updated set of 40 Recommendations for improving national legal systems, enhancing the role of the financial sector and intensifying cooperation in the fight against money-laundering (FATF, 2003).
The FATF's approach of identifying non-cooperating countries and territories proved successful in forcing improvements in the anti-money laundering and counter-terrorist financing systems of a number of countries. Through financial incentives, sanctions, and monitoring, the FATF has successfully encouraged countries to create and enforce money-laundering laws and to cooperate in international investigations.
Corrupt public officials and money-launderingA review of cases by the FATF found that corrupt public officials used money-laundering methods very similar to those used by organized crime. The corrupt public officials disguised their ownership through corporate vehicles and trust companies, and used gatekeepers and nominees to launder proceeds through the domestic and foreign financial institutions. They used their power, like organized crime figures in some jurisdictions, to acquire state assets, control law enforcement, and capture banks (FATF 2011; FATF, 2015).
According to the FATF, common indicators of "red flags" of potential money-laundering activity include:
These are the kinds of indicators that financial institutions and businesses dealing in cash transactions are expected to act on when unusual financial transactions occur. Besides the above mentioned 40 Recommendations, the FATF has also developed 9 Special Recommendations to set out the basic framework to detect, prevent and suppress the financing of terrorism and terrorist acts. These 9 Special Recommendations together with the 40 previously adopted provide a comprehensive set of measures for an effective legal and institutional regime against money-laundering and the financing of terrorism.
Regional perspective: Pacific Islands Region
Papua New Guinea's efforts to strengthen AML/CFT capabilities
Papua New Guinea (PNG) had a weak legal framework to combat money laundering and terrorism financing. In early 2014, the Financial Action Task Force (FATF) identified legislative gaps and included the country in its grey list.
Under the leadership of PNG Department of Justice and the Attorney General, the country undertook a comprehensive legislative revision to address systemic deficiencies. Relevant stakeholders such as the Central Bank of PNG, the Office of the Public Prosecutor, PNG Customs Service, Royal PNG Constabulary, among many others, worked jointly to strengthen the country's anti-money laundering and counter-terrorism financing system (AML/CFT).
As a result, several laws were enacted and amended: Anti-Money Laundering and Counter Terrorist Financing Act 2015; United Nations Financial Sanctions Act 2015; Criminal Code (Money-Laundering and Terrorist Financing) (Amendment) Act 2015; Proceeds of Crime (Amendment) Act 2015; and Mutual Assistance in Criminal Matters (Amendment) Act 2015.
The country met FATF standards and was removed from the grey list in 2016.
Regional perspective: Eastern and Southern Africa
The Eastern and Southern Africa Anti-Money Laundering Group (ESAAMLG)
The Eastern and Southern Africa Anti-Money Laundering Group (ESAAMLG) was officially established in 1999 in Arusha, Tanzania.
As of January 2020, ESAAMLG membership comprises of 18 countries and a number of regional and international observers such as AUSTRAC, COMESA, Commonwealth Secretariat, East African Community, Egmont Group of Financial Intelligence Units, FATF, GIZ, IMF, SADC, United Kingdom, United Nations, UNODC, United States of America, World Bank and World Customs Organization.
ESAAMLG’s members and observers are committed to the effective implementation and enforcement of international accepted standards against money laundering and the financing of terrorism and proliferation, in particular the FATF Recommendations.