Counter-Terrorism Law and Practice: An International Handbook

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UNIVERSITY of HOUSTON Public Law and Legal Theory Series 2010-A-10 TERRORISM’S PROSCRIPTION AND CORE ELEMENTS OF AN OBJECTIVE DEFINITION Jordan J. Paust T HE U NIVERSITY OF H OUSTON L AW C ENTER This paper can be downloaded without charge at: The University of Houston Accepted Paper Series Index The Social Science Research Network Electronic Paper Collection
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Paust2010SantaClaraJfinal.doc 4/2/2010 9:02 AM Terrorism’s Proscription and Core Elements of an Objective Definition 51 Terrorism’s Proscription and Core Elements of an Objective Definition Jordan J. Paust* This essay is a response to the interesting article by Naomi Norberg on Terror- ism and International Criminal Justice that appears in this symposium. 1 What I find most interesting is her attention to the problem posed by a tendency of many to consider “the other” as being unworthy of human dignity and the abnegative consequences for humanity that often occur from such a misperception. It is a mis- perception that has been manipulated and too often has contributed to the criminal treatment and targetings of other human beings that we recognize as war crimes, genocide, and other crimes against humanity. Tolerance and respect for the dignity of others will serve to better effectuate human rights and more adequately prevent various types of international crime. 2 One such crime is terrorism. 3 * Mike and Teresa Baker Law Center Professor of International Law at the Law Center of the University of Houston. 1. Naomi Norberg, Terrorism and International Criminal Justice: Dim Prospects for a Future Together , 8 SANTA CLARA J. INT’L L. 11 (2010). 2 . See also Jordan J. Paust, Tolerance in the Age of Increased Interdependence , 56 FLA. L. REV. 987, 987-92, 1001-02 (2004). 3. With respect to interconnections between terrorism and human rights, see , e.g. , Jordan J. Paust, The Link Between Human Rights and Terrorism and Its Implications for the Law of State Responsibility , 11 HASTINGS INT’L & COMP. L. REV. 41 (1987). See also Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) at 53 (1978) (regarding “terrorist activities . . . [of] individuals or of groups . . . [they are] activities that are in clear disregard of human rights”).
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Paust2010SantaClaraJfinal (Do Not Delete) 4/2/2010 9:02 AM 8 SANTA CLARA JOURNAL OF INTERNATIONAL LAW 1 (2010) 52 With respect to terrorism, I agree that “terrorism is a serious crime” 4 and that there is a general need for an all encompassing reach of international criminal pro- scriptions to include perpetrators of any status (for example, elite officials as well as private perpetrators) and any socio-political context (for example, from peace to war), unless an international crime is necessarily limited by the international com- munity to a particular context (for example, the limitation of application of the laws of war to circumstances of armed conflict). The proscription of terrorism should reach all perpetrators and govern in any context outside of an exception that
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