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Counter-Terrorism Law and Practice: An International Handbook

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1 Terrorism and Universal Jurisdiction: Opening a Pandora‟s Box? Luz E. Nagle * I. Introduction II. The Nature of International Crime III. The Nature of Transnational Crime IV. Criminalization of Terrorism V. Defining Terrorism VI. Determining Venue A. Universal Jurisdiction in Domestic Courts B. Universal Jurisdiction in International Tribunals VII. Universal Jurisdiction for Domestic Terrorism VIII. Other Mechanisms for Combating Terrorism A. Institutionalization of States of Emergency B. Immigration Law and Policy to Fight Terrorism IX. Applying Universal Jurisdiction to Domestic Terrorism X. Conclusions Abstract: In the wake of the terrorist attacks of September 11, 2001, a compelling legal debate has arisen pertaining to whether terrorism is an international crime or a transnational crime, and if and in what context actors and acts, to which we affix the label of terrorist and terrorism, should or can be subject to the jurisdiction of the International Criminal Court and other criminal tribunals having universal jurisdiction. Some legal scholars believe terrorists acts should be subject to universal jurisdiction, while others believe that elevating terrorism to the same level of universally-recognized extreme crimes elicits several concerns. This article examines both sides of the debate and presents arguments that terrorism should remain outside the framework of universal jurisdiction. I Introduction The relationship between terrorism and international criminal law has provoked a good deal of discussion in the wake of the terrorist attacks of September 11, 2001 in New York City and at the Pentagon in Washington, D.C. A particularly challenging issue pertains to whether terrorism is an international crime or a transnational crime, and if and in what context offenders and offenses, to which we affix the label of terrorist and * Professor of Law, Stetson University College of Law. The author wishes to thank Research Assistant Sarah A. Cohen, and Ms. Aliza Hochmon for their valuable research and editing assistance in the drafting of this article.
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2 terrorism, should or can be subject to the jurisdiction of the International Criminal Court and other criminal tribunals having universal jurisdiction. While there are those who feel that terrorism should fall under the purview of universal jurisdiction, some scholars 1 argue that even while the “international state of emergency” triggered by the events of September 11 generated worldwide, extensive, and severe legislation internationalizing a crime that is mainly “set deep within national borders,” 2 acts of terrorism fail to merit ICC jurisdiction because the parameters of such acts remain undefined due to politics. The ICC “would be hard pressed to fulfill the goals of deterrence and justice for victims,” 3 and that in trying to do so some nations might respond to internal and external terrorist threats by erecting barriers to suppress fundamental rights “in the name of combating what seems to have become the „crime of
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