National Security Under Liberal Substantive Criminal Law – When Do National Security Issues Become Criminal?

42 Pages Posted: 28 Nov 2015

Date Written: November 27, 2015

Abstract

This is a common dilemma most Western democracies face in their legal fight against terrorism. On one hand, if the state does not exercise its police powers against a dangerous person waiting for an opportunity to execute his crimes, the public is in grave danger, and it is only a matter of time before the danger materializes into a terrorist attack. On the other hand, on what legal grounds could such a person be convicted? Punishing thoughts is a slippery slope that does not necessarily stop at terrorist attacks. The liberal concept of criminal law is opposed to prohibiting thoughts. Clearly, a proper balance is required. If the infrastructure of terrorism cannot be destroyed at its foundation, the danger is far greater than the danger of not preventing a single act of terrorism, because that infrastructure remains at large to plan many more attacks.

The accumulated experience in this regard indicates that when the necessary conditions for executing a terrorist attack have been met, the attack occurs within a very short time. Waiting for these conditions to ripen before arresting the perpetrators places society in jeopardy. But arresting people merely because they have criminal thoughts is not less dangerous in social terms.

The present article proposes that the proper solution lies in the redefinition of inchoate offenses, so that they become legally consistent with the values of the modern democratic society and are capable of meeting its needs. The solution is not necessarily exclusive to the legal fight against terrorism, because criminal law theory is applicable to all offenses, including terrorist attacks but not limited to them. As a result, a redefinition of inchoate offenses will affect all offenses. The article begins by discussing the existing legal means available for factual incapacitation of terrorism. On that foundation, it examines the role of inchoate offenses in criminal law in the context of counter-terrorism, and proposes a redefinition of inchoate offenses as they apply to terrorism. Finally, it addresses the effect of such redefinition on offenses other than terrorist attacks.

Keywords: terrorism, national security, criminal law, high treason

Suggested Citation

Hallevy, Prof. Gabriel, National Security Under Liberal Substantive Criminal Law – When Do National Security Issues Become Criminal? (November 27, 2015). Available at SSRN: https://ssrn.com/abstract=2696055 or http://dx.doi.org/10.2139/ssrn.2696055

Prof. Gabriel Hallevy (Contact Author)

Ono Academic College, Faculty of Law ( email )

104 Zahal St.
Kiryat Ono, 55000
Israel

HOME PAGE: http://www.ono.ac.il

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