Published online by Cambridge University Press: 05 April 2015
There is cogency in the view that unless responsibility is imputed and attached to persons of flesh and blood, it rests with no-one.(Lauterpacht, 1950)
We will direct every resource at our command … every instrument of law enforcement … to the disruption and defeat of the global terror network.(President Bush, September 2001)
In undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law.(US Supreme Court, Hamdan v. Rumsfeld)
To the extent that acts of international terrorism constitute crimes under international – or relevant national – law, those responsible, directly or indirectly, are susceptible to international and/or domestic investigation and prosecution. States not only have the right under international law, but also the duty, to bring criminal law to bear on individuals who commit serious crimes. This corresponds to the right of victims of terrorism to have the violations of their rights investigated and those responsible held to account.
Criminal law enforcement may serve multiple goals, ranging from those embraced by traditional theories of retribution, deterrence or redress, to providing historical narratives of wrongdoing and ‘debunking the glorification of violence’. Directly and indirectly, the criminal process can contribute to the prevention of terrorism. Critically, while criminal law is only one of the international legal tools against terrorism, the expressive function of criminal trials can play a role in restoring or strengthening the rule of law. Conversely, the neglect of criminal law enforcement may itself have an expressive function in suggesting that counter-terrorism is less about ‘justice’ than it is about other goals.
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