Risk-Based Governance of Terrorism Financing and the Fate of Legal Responsibility

This public lecture introduces, problematizes and lays-out a research agenda regarding the recent rise of a risk management approach in the global governance of terrorism financing. Risk management is an orientation to pre-emptively tackle problems not just by responding to concrete threats but also by reducing potential vulnerability itself. This approach to global anti-terrorism financing challenges our understanding of legal responsibility in decision-making for at least two reasons. First, instead of having well-defined rules, risk management works by oscillating between broad principles/standards/metrics adopted at the global level and locally-variegated implementation by individual financial institutions, which are given wide discretion in doing so. This does not sit well with our understanding of responsibility as a concept triggered in the presence of well-defined rules against which fault could be established. Secondly, because risk management is by nature a predictive exercise about potential future criminality, it is by definition reliant on uncertain knowledge. In this case, the challenge to establishing responsibility is the difficulty of locating the exact point at which fault arises – if the very design permits wide discretion in filling a factual void, precisely for what and why should responsibility be conceived? Or should we think of responsibility in altogether new ways than rules and fault?