AML: maintaining the balance between controlling serious crime and human rights

Abstract

Anti-money laundering (AML) regulation is arguably a great protector of rights: the right to be free from the corrosive influence of serious crime, the rights of citizens to the return of property illegally appropriated by dictators, the freedom to rely on the financial system without fear that criminal earnings might induce its collapse or the right of a society to taxation revenues that might otherwise flee jurisdictional boundaries under the guise of laundered funds. In offering a measure of resistance to forces that would undermine civil society, the AML strategy champions the broad shared right to a reasonably stable social order.Axiomatically, to protect the parameters of civil society, anti-money laundering regulation must, in its own right, adhere to established principles of justice. To suppress serious crime by dismissing rights fractures the ideal of a civil society and makes those who insist on pursuing the strategy indistinguishable from the very evils they so vehemently desire to control.Canvassing a range of jurisdictions, this chapter explores three recurrent themes of tension between the regulation of criminal finance and rights. The first theme explores conflicts provoked by the reporting requirements of AML law and concepts of privacy or confidentiality. The second deals with interferences that emerge from the merging of the criminal and the civil law, a feature that chiefly relates to the confiscation, or forfeiture elements of AML regulation. The third section investigates conflicts between the regulation of terrorist finance and rights. The conclusion urges a cautionary approach to the AML strategy given uncertainty as to its achievements.