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date: 17 June 2019

Abstract and Keywords

This chapter examines the existential challenges posed by terrorism to criminal law, with emphasis on the law’s neutrality and integrity and the problematic notion of “enemy criminal law.” It sketches less restrained alternatives to the criminal law that have been used to address terrorism, including military detention and trial, immigration and administrative detention, extra-legal renditions and legal extraditions, and targeted killing. Attention then turns to definitions of terrorism, extraterritorial jurisdiction, and the integration of administrative blacklists into criminal law, along with the limited capacity of fault or mens rea requirements to restrain broad definitions of criminal law. The chapter also discusses the limited restraining effects of defenses such as entrapment and the principles of proportionate punishment in relation to broad terrorism crimes. Finally, it considers whether criminal law deserves to be retained as the toughest response to terrorism or whether it has undermined its essential features as a just approach.

Keywords: terrorism, criminal law, military trial, detention, rendition, targeted killing, extraterritorial jurisdiction, fault, entrapment, proportionate punishment

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