Legitimacy and Coherence
Edited by Gideon Boas, William A. Schabas and Michael P. Scharf
Chapter 8: Terrorism and international criminal law: questions of (in)coherence and (il)legitimacy
The global reaction to the terrorist attacks of 11 September 2001 (‘9/11’) has driven a rapid, complex and uncoordinated process of counter-terrorism norm-creation and implementation. These law-making processes have taken place on a variety of registers: vertical norm development;1 stronger transnational criminal cooperation; new measures in regional public law;2 the emergence of new ‘soft law’ standards;3 the mobilisation of non-State actors;4 the horizontal, cross-border borrowing and transplant of domestic legal norms across national legal systems;5 and the vertical uplifting of national norms onto the regional or international plane.6 Quite a few of these processes ‘operate below the level of highly publicized diplomatic conferences and treaty-making, but in aggregate … regulate and manage vast sectors of economic and social life through specific decisions and rulemaking’. The development of ‘hard and soft, global and regional law’8 addressing terrorism illustrates ‘the diversity of law-making approaches that inter- national law now offers and [shows] that the choice of process depends upon context, political preference and purpose’.9 The 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, potentially generating normative, procedural and institutional ambiguity, fragmentation and collision. In this context, this chapter first assesses the state of international anti-terrorism law in relation to three notions of coherence:
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