Defending 'Terrorism': Justifications and Excuses for Terrorism in International Criminal Law

Australian Yearbook of International Law, Vol. 25, pp. 177-226, 2006

Sydney Law School Research Paper No. 08/122

71 Pages Posted: 30 Oct 2008  

Ben Saul

The University of Sydney Law School

Date Written: October 29, 2008

Abstract

The first part of this article outlines the purported causes of terrorism advanced in the UN General Assembly since the 1970s, and the contrary views of States on whether these causes ought to justify or excuse terrorist violence - particularly self-determination or national liberation violence. The second part examines how a limited range of justifications for any new international crime of terrorism could be accommodated by individual defences in international criminal law (including self-defence, and duress/necessity). It then proposes that non-State group actors accused of terrorist crimes should be entitled to plead 'circumstances precluding wrongfulness', drawn analogously from the law of State responsibility. While a narrow class of terrorist acts may be excused by individual or group defences, some acts considered justifiable may still fall outside the scope of defences. To maintain the law's legitimacy, the final part argues that some crimes of terrorism could be regarded as 'illegal but justifiable' (or at least, excusable) in stringently limited, objectively verifiable circumstances, possibly under the rubric of a 'collective defence of human rights'.

Keywords: terrorism, international criminal law, defences, causes, human rights, self-determination, State terrorism, national liberation, religious violence

JEL Classification: K10, K30, K33

Suggested Citation

Saul, Ben, Defending 'Terrorism': Justifications and Excuses for Terrorism in International Criminal Law (October 29, 2008). Australian Yearbook of International Law, Vol. 25, pp. 177-226, 2006; Sydney Law School Research Paper No. 08/122. Available at SSRN: https://ssrn.com/abstract=1291584

Ben Saul (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

HOME PAGE: http://www.law.usyd.edu.au/about/staff/BenSaul/index.shtml

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