Legal Responses to Transnational and International Crimes
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Legal Responses to Transnational and International Crimes

Towards an Integrative Approach

Edited by Harmen Van der Wilt and Christophe Paulussen

This book critically reflects on the relationship between ‘core crimes’ which make up the subject matter jurisdiction of the International Criminal Court (such as war crimes, crimes against humanity, genocide, and aggression) and transnational crimes. The contributions in the book address the features of several transnational crimes and generally acknowledge that the boundaries between core crimes and transnational crimes are blurring. One of the major questions is whether, in view of this gradual merger of the categories, the distinction in legal regime is still warranted. Should prosecution and trial of transnational crimes be transferred from national to international jurisdictions?
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Chapter 6: Terrorism and the conceptual divide between international and transnational criminal law

Alejandro Chehtman

Abstract

Whether terrorism should be conceptualised as a transnational or international crime is a deeply contested issue in contemporary international law. What is more interesting, the terms of the debate are made significantly more difficult by the fact that the adequate distinction between these categories is itself a matter of controversy. This chapter provides an answer to this question by precisely clarifying the conceptual and normative faultlines between domestic, transnational and international criminal law. Accordingly, it first provides a conceptual analysis of these categories and suggests that the key distinction between them is jurisdictional, i.e. it concerns the scope of states’ right to punish them. On this basis, it examines where terrorism fits in these categories and why. Unsurprisingly, the chapter argues that terrorist acts do not fit in one category only. The chapter distinguishes four ‘varieties’ of terrorism which are conceptualised along two axes, i.e., national and cross-border terrorism, and state terrorism and terrorism conducted by non-state groups. Ultimately, it concludes that while the majority of terrorist acts conducted by non-state groups belong to the province of transnational criminal law, the majority of those perpetrated by state authorities should be conceptualised as core crimes of international criminal law. But what is more important, the chapter proposes a substantive criterion to explain why any such act should belong in one category or the other.

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