Saul on Criminality and Terrorism

Ben Saul  (University of Sydney - Faculty of Law) has posted Criminality and Terrorism (COUNTER-TERRORISM, THE SECURITY IMPERATIVE AND THE RULE OF LAW, Katja Samuel et al., eds., World Justice Project: Nottingham University & Club of Madrid, Forthcoming) on SSRN. Here is the abstract:

This chapter identifies threats to the rule of law posed by criminal law responses to terrorism at the national, regional and international levels, including the controversial shift over time from treating terrorism as ordinary crime to stigmatizing terrorism as a special kind of offence against political life, public order, and international social values. First, vague or over-inclusive definitions of terrorism raise serious concerns about freedom from retroactive criminal punishment. Secondly, ancillary, preparatory or inchoate offences (frequently attracting disproportionate penalties) which hang off the primary definition of terrorism in various legal systems have sometimes been crafted too broadly. Thirdly, group-based offences (such as membership, association or ‘material support’ offences) linked to the proscription of terrorist organizations often deny procedural fairness and rights of review. Fourthly, speech-related offences including incitement, advocacy or glorification of terrorism engage concerns about freedom of expression, of religion and from non-discrimination. Fifthly, the modification of traditional criminal procedure in dealing with terrorism impairs fair trial rights and the independence and impartiality of tribunals. Finally, boundaries of different branches of law (including domestic criminal law and international humanitarian law) have been blurred, risking double jeopardy and generating problems for the integrity of all such branches of law.