Journal Article

Is Terrorism a Crime or an Aggravating Factor in Sentencing?

Mohammed Saif-Alden Wattad

in Journal of International Criminal Justice

Volume 4, issue 5, pages 1017-1030
Published in print November 2006 | ISSN: 1478-1387
Published online November 2006 | e-ISSN: 1478-1395 | DOI: http://dx.doi.org/10.1093/jicj/mql078
Is Terrorism a Crime or an Aggravating Factor in Sentencing?

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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.

Journal Article.  6193 words. 

Subjects: Criminal Law ; International Law

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