Document Type : Research Paper
Authors
1
Assistant Professor of Criminal Law and Criminology, University of Tehran, Faculty of Law and Political Science, Department of Criminal Law and Criminology, Tehran, Iran.
2
Master of Criminal Law and Criminology, University of Tehran, Faculty of Law and Political Science, Department of Criminal Law and Criminology, Tehran, Iran
Abstract
Extended Abstract
Intrudaction
Despite lawyers’ and political scientists’ efforts to define terrorism over the last century, a consensus has not been reached, and no universal agreement on a precise legal definition of terrorism exists to date. As long as politicians need to address terrorism in varying security contexts, disagreements among lawyers seem unavoidable due to the overdependence of criminal law on States’ politics. Considering terrorism a crime against national security, it can only be analyzed by perceiving these actions as national security threats. The law itself is not capable of resolving these disagreements on the definition of terrorism per se. Therefore, to make sense of the existing disagreements, terrorism must be regarded as a security issue that has evolved into a legal concept.
Traditional security studies lack an extensive perspective on security, often focusing solely on strategic threats, making them unsuitable for clarifying the terrorism concept. For this reason, the Copenhagen School, which divides security issues into five categories, has been applied as the theoretical framework for this research to answer this fundamental question: What are the impacts of security factors on states’ views of the legal concept of terrorism? This paper hypothesizes that the specific security vulnerabilities of each state have particular effects on that state’s perception of terrorism threats. To assess this hypothesis, qualitative content analysis method was employed by studying the definitions of terrorism in the legal documents of different countries, revealing the relevance of the motivation element of terrorist crimes in relation to state vulnerabilities using Buzan’s framework of political security. It is worth noting that the countries selected by the authors exhibit different vulnerabilities according to Buzan’s framework, which categorizes states based on their weaknesses.
Methodology
The Copenhagen School provides two important theories to analyze terrorism: “Securitization Theory” and “Categorization of Security.” According to securitization theory, a security matter begins with a securitizing actor and is completed with the acceptance of the target audience. Thus, terrorism, as a security threat, must be an intersubjective matter dependent on both actors and audiences. In such circumstances, if criminal law is to be used as a tool for securitization, it cannot be done effectively within its traditional framework due to the Nullum crimen sine lege principle. Therefore, within customary instruments, politicians are unable to react differently to security matters through criminal law and must instead emphasize the excessive element of “motivation,” which does not play a prominent role in ordinary crimes. Therefore, If an actor intends to securitize the motives attributed to a political group, the most effective approach is to emphasize these motives. Consequently, a common crime is transformed into a terrorist act based on this element.
Findings
Another important question, which remains open even after implementing securitization theory, is when or under which circumstances actors securitize the terrorism threat. Since terrorism endangers the sovereignty of states within their own realms, it must be analyzed as a political threat. Buzan’s analysis of political threats to national security asserts that states’ vulnerabilities in the political sphere are related to the weakness of two elements: “nation” and “political ideology.” Therefore, in weak states suffering from a lack of political cohesion and national unity, political security matters are often associated with separatist movements. In such states, the motivation element in terrorist crimes often plays a role in securitizing political motivations attributed to separatist groups. This situation can occur in weak states that manage to consolidate various nations through a pervasive and entrenched ideology. Consequently, failed states, which lack a unifying ideology, are unable to securitize terrorism and are thus unable to securitize a political ideology. As a result, terrorism definitions in these countries may not reflect terrorism securitization. Conversely, for strong states with a united or consolidated nation, terrorism threats are linked to ideologies in tension with the government’s recognized ideology. In these circumstances, securitizing actors often trigger emergency measures against contested ideologies. The reclassification of ordinary crimes with political motivations into terrorist crimes is one of the emergency measures necessitated by the securitization process.
Coclusions
The provision of security requires a different and more stringent approach to terrorist offences. This issue is one of the reasons that has led to diversity in the definition of these crimes, as each government has a different understanding of security according to its social and political concerns and needs. Since security is a subjective concept, definitions of terrorism have also differed because of their dependence on this subjective concept. Thus, in order to understand the differences, one should try to understand the different bases that have caused a change in the definition due to security concerns. It is evident from different terrorism definitions that the motivation element plays a significant role in terrorist crimes. This subjective element is not considered fundamental to a crime in classical criminal law, as it relates more to the perpetrator than to the actus reus. As a result of emphasizing the motivation element, states, depending on their capacity for securitization, adjust their approach to dealing with criminals based on their motivations, provided they have successfully securitized their vulnerabilities.
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