Terrorism and International Criminal Law: Questions of (In)Coherence and (Il)Legitimacy

INTERNATIONAL CRIMINAL JUSTICE: LEGITIMACY AND COHERENCE, G. Boas, W. Schabas, M. Sharf, eds., Edward Elgar, Forthcoming

Sydney Law School Research Paper No. 11/87

29 Pages Posted: 4 Nov 2011 Last revised: 6 Sep 2012

Ben Saul

The University of Sydney Law School

Date Written: November 1, 2011

Abstract

A decade after 9/11, the international field of counter-terrorism is now thick with law. But that does not mean that the law is coherent or legitimate. The birth of new rules, institutions and processes can be anarchic. New norms overlay older, pre-existing legal forms and regimes, generating normative, procedural and institutional ambiguity, fragmentation and collision. In this context, this article first assesses the state of international anti-terrorism law in relation to three notions of coherence: its internal coherence as a discrete legal regime; its relational coherence in respect of other specialised legal regimes; and its consistency of application as a key characteristic of coherence. The law’s coherence may affect its legitimacy; but legitimacy is also affected by other factors. This article next considers two such factors: the determinacy of anti-terrorism law; and the legitimacy of the legal processes and institutions surrounding it. Global anti-terrorism law is an imperfect, chaotic work in progress. The processes and institutions for managing incoherence will gradually muddle through some of the problems of ambiguity, indeterminacy, conflict and fragmentation. Sometimes the dialogue will be constructive, and at other times it will be pistols at ten paces. Much work nonetheless needs to be done to adjust the superstructures which produce and circulate the law. The reform project is urgent not least because the law continues to subordinate liberty to state interests, without necessarily making the world safer.

Keywords: Terrorism, legitimacy, coherence, fragmentation, indeterminacy, selectivity, customary international law, international criminal law, international humanitarian law, human rights, international law on the use of force, financing

JEL Classification: K10, K14, K30, K33

Suggested Citation

Saul, Ben, Terrorism and International Criminal Law: Questions of (In)Coherence and (Il)Legitimacy (November 1, 2011). INTERNATIONAL CRIMINAL JUSTICE: LEGITIMACY AND COHERENCE, G. Boas, W. Schabas, M. Sharf, eds., Edward Elgar, Forthcoming; Sydney Law School Research Paper No. 11/87. Available at SSRN: https://ssrn.com/abstract=1954262

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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