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Criminality and Terrorism

COUNTER-TERRORISM, THE SECURITY IMPERATIVE AND THE RULE OF LAW, A.M. Salinas de Friás, K.L.H. Samuel and N.D. White, eds., Oxford University Press: UK, pp. 133-170, 2012

Sydney Law School Research Paper No. 10/106

31 Pages Posted: 31 Oct 2010 Last revised: 11 Sep 2012

Ben Saul

The University of Sydney Law School

Date Written: October 28, 2010

Abstract

The criminal law has assumed a central role in global counter-terrorism efforts since 9/11. This article examines criminal law responses to terrorism at the national, regional and international levels, including the controversial shift over time from treating terrorism as ordinary crime (augmented by sector-specific, transnational treaty offences) to stigmatizing terrorism as a special kind of offence against political life, public order, and international social values. The purposes, promise and limitations of criminal justice approaches to terrorism are explored in this context. It then argues that these developments have brought a bundle of rule of law problems concerning the principle of legality in the definition of offences; the over-extension of liability to capture remote harms; overly punitive approaches to penalties; risks of criminalising freedom of association; executive intrusion into judicial functions; discrimination; and the denial of a fair trial by an independent and impartial court. The interaction between criminal law controls and other branches of international and national law has also given rise to rule of law problems.

Keywords: terrorism, criminal law, definition, criminology, punishment, rule of law, criminal procedure, fair trial, human rights, legality, inchoate offences, terrorist organisations, procedural fairness, freedom of expression, freedom of religion, non-discrimination, fragmentation, humanitarian law

JEL Classification: K10, K14, K30, K33

Suggested Citation

Saul, Ben, Criminality and Terrorism (October 28, 2010). COUNTER-TERRORISM, THE SECURITY IMPERATIVE AND THE RULE OF LAW, A.M. Salinas de Friás, K.L.H. Samuel and N.D. White, eds., Oxford University Press: UK, pp. 133-170, 2012; Sydney Law School Research Paper No. 10/106. Available at SSRN: https://ssrn.com/abstract=1699505

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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