A critical concept of terrorism for criminal prosecution

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Published 21-10-2022
M. Alejandra Pastrana Sánchez

Abstract

One of the main difficulties of the terrorist phenomenon is finding a complete and univocal notion of this concept. Moreover, it seems abundantly clear from the existing scientific literature that this is ultimately a utopian goal. For this reason, the following pages do not seek to provide an explanation which inevitably ends up concluding yet again that a permanent definition of terrorism is untenable. On the contrary, the purpose of this paper is to offer a legal concept for its insertion in a social reality at a specific time and place, which should serve as a useful tool when interpreting the criminal offences for punishment of terrorist acts, and also to critically assess the criminal policy. Therefore, the concept proposed does not possess nor pursue an unattainable universality. Its aim is much more limited, although still valuable: to pose a definition of terrorism, firstly in sociological and subsequently in legal terms, which is valid for use in modern criminal legislation. To this end, firstly terrorism is analysed from a sociological perspective, establishing the foundations of this phenomenon and the characteristics of the so-called ‘new terrorism’. Based on these criteria, a legal analysis is then undertaken of terrorism, with formulation of a hypothesis which is tested using criminal phenomena that may be considered terrorism or, as a minimum, political violence.  To conclude, a legal definition of terrorism is proposed for use in current criminal legislation.

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