Terrorism and the conceptual divide between international and transnational criminal law

Abstract

Whether terrorism should be conceptualized 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 paper provides an answer to this question by precisely clarifying the conceptual and normative fault lines 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, ie it concerns the scope of the right to punish them. On this basis, it examines where terrorism fits in these categories and why. Unsurprisingly, the article argues that terrorist acts do not fit in one category only. The paper distinguishes four “varieties” of terrorism which are conceptualized along two axes, ie, 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 conceptualized as core crimes of international criminal law. But what is more important, the article proposes a substantive criterion to explain why any such act should belong in one category or the other.