Terror changes the

character of criminal justice

The UN “stretched” its mandate when the Security Council passed Resolution 1373. For the first time in the history of the world, the international organisation assumed the role of international legislator.

One consequence was that the character of criminal justice at national level was changed. Law professor Erling Johannes Husabø does research on how the internationalisation of criminal justice has contributed to a change in the character of this area of the law. His work includes a comparative study of the implementation of Resolution 1373 in criminal legislation in Scandinavia , Germany and The Netherlands. Criminal justice in these countries is based on a common legal culture, although there are interesting legal and political differences between them.

“Stretching” the mandate

Husabø believes that the legislative role assumed by the Security Council in Resolution 1373 is problematic. This is because the Resolution is not related to a concrete situation that threatens world peace, as Article 39 of the Charter of the United Nations appears to require, but refers to a general problem currently facing the global community, that of international terrorism. Extending sanctions to individual persons, as was done via the Taliban black-list, is also an instrument of a different character than was intended for the Security Council when the UN Charter was adopted.

Black-listing means that all states are obliged to freeze all types of financial assets that belong to persons named on the Taliban list and to forbid any type of financial transaction with them. When such serious measures on individuals are adopted by an international organisation that can require nation-states to implement the resolution, the guarantees of due process usually extended by states to individual citizens are set aside. The European Union has assumed a leading role in the implementation of new anti-terror measures among its member states. The Security Council’s requirement regarding criminalisation has been given concrete form via the EU’s framework agreement on terrorism. This in turn has been implemented in the body of criminal law of individual countries. The EU has also introduced a system of blacklisting terrorists.

When international bodies extend their own legislative mandates, national parliaments are weakened. People risk punishment for breaking laws that they themselves have not accepted (i.e. voted) to be punished for. Husabø’s comparative study of changes in the criminal law in these five countries will shed light on the mechanisms that come into operation when international rules are implemented at national level.

Pro-active criminal justice

Resolution 1373 laid an obligation, which had the force of international law, on all UN member states to criminalise a number of different types of activity, to freeze the financial assets of terrorists and act to prevent recruitment to terrorist groups. This produced changes in international decision-making processes with respect to the design of criminal legislation. The world was given a new type of legislation that is contributing to changes in the character of national criminal justice. Traditionally, criminal laws have been activated after a law has been broken (reactive criminal justice). Terrorism, on the other hand, makes it necessary to prevent serious activities from taking place (pro-active criminal justice).

The new laws aimed at combating terrorism have a tendency to subjectivise criminal responsibility to a greater extent that traditional criminal law. They focus on the underlying motivation of the individual rather than what he intends to do in terms of the specific action involved. Norwegian criminal law, for example, has already gone far in the direction of criminalising the financing of terrorism. In such cases it is the existence of the intention to sow terror, or awareness that the receiver has such an intention, that determines what is legal or illegal in raising funds. However, the terror motive is extremely difficult to demonstrate. When there are few indices that can be based on the external action, the person’s social environment may well be used as evidence of his motives. This obviously brings in its wake the danger of doing suspects an injustice.

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