II. Terrorism, Civil Society, and Legal Culture |
Is Terrorism a Crime or an Aggravating Factor in Sentencing?
* Doctoral candidate, Columbia University Law School; Halbert Research Fellow, Munk Center for International Studies, University of Toronto Faculty of Law. I am indebted to Prof. George Fletcher for his criticism of earlier drafts of this article. Thanks are also due to Nika 
varc and Ozbej Merc for reviewing an early draft. Special thanks to Mr Saif-Alden Wattad, Adv. for his valuable insights on practical aspects of criminal prosecution. All opinions and errors (and, if applicable, errors of opinion) are my own. [ mw2232{at}columbia.edu]
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Abstract |
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Common law systems, in criminal cases, distinguish between the guilt/innocence proceedings and the sentencing stage. This is not the case in civil law systems where criminal trial consists of a single phase, combining the inquiry into guilt with sentencing. Under common law practice many facts relevant for sentencing are considered irrelevant at the stage of finding guilt for the commission of the crime. Aggravating elements, therefore, address a fundamental distinction of substantive criminal law between guilt and dangerousness: guilt is a determination of responsibility for a prior wrongdoing; dangerousness is a speculative future determination. The intensification of terrorist activity in the past few years has made terrorism one of today's most pressing problems. But is terrorism a crime or an aggravating factor in sentencing? In this article, the author challenges conventional wisdom regarding the meaning of ‘terrorist crimes’, by providing a conceptual understanding of ‘terrorism’, as well as articulating a theory of guilt. Terrorists seldom express ‘guilt’. The word ‘terrorism’ describes, instead, an overriding motivation, a way of acting, rather than the objective circumstances of acting. Terrorism is nothing but common crimes although committed with an overriding motivation of imposing extreme fear on the nation as such. The author presents the conceptual grounds of the phenomenon of terrorism as it has evolved through history, before enquiring into the meaning of ‘terrorist crimes’: the overriding motivation associated with the concept of terrorism constitutes the degree of cognate dangerousness of terrorist crimes.