The Difficulties in Terrorism Prosecution

By Stacey Wright for

Stacey WrightThe law of attempt is a vague concept, one that exists in criminal prosecutions but is difficult to prosecute. In a nation where mens rea, the applicable mental element, and actus reus, the applicable physical element is required, it is difficult to prove such actus reus in attempt cases. Attempt is best described as an inchoate crime. An inchoate offense is defined as a crime of preparation or seeking to commit another crime. Once in the realm of inchoate offenses, it is difficult to identify the requisite actus reus. Particularly with attempt, the more severe a crime is, the sooner you can intervene and successfully convict for attempt.

Typically, it is easier to prove the requisite mens rea and actus reus of attempted murder than it is to prove the requisite actus reus and mens rea of shoplifting. The incentive there is we want to allow the law enforcement individuals the ability to stop a murder at an earlier stage. This calls into question the concept of when is an individual actually guilty of committing a crime, specifically, when can you successfully arrest, prosecute, and convict an individual for terrorism?

Various countries have addressed this question differently. Many countries focus their terrorist prosecution through the concept of conspiracy. Thus, if there is a plan, and all members are aware of the essential nature of the plan, and have taken an overt action to further that plan, they can be convicted for the crimes committed by others involved with that plan. This is often referred to as the Pinkerton Doctrine. For instance, in United States v. Salameh[1], the appellate court in the Second Circuit addresses a conspiracy amongst several individuals to bomb the World Trade Center Complex. Several of the conspirators challenge their conspiracy conviction on sufficiency of the evidence grounds. In order for the government to succeed in convicting a defendant as a co-conspirator, they must demonstrate the defendant acquiesced to the essential nature of the plan. According to jurisprudence, co-conspirators can be liable for crimes committed by co-conspirators.[2] Thus, in application to terrorism, the United States courts have utilized the conspiracy doctrine common in criminal law to prosecute those involved in a conspiracy to commit terrorism in the future.

In Australia, the courts focus on the unique nature of terrorism, specifically on the specific elements that warrant a criminal prosecution. In Lodhi v. The Queen, the court held there is an essential element of knowledge, but it is not requisite that the knowledge be one of an actual terrorist act. Rather, the knowledge must be that their action has connection to a terrorist act.A policy judgment was made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct. The Lodhi court held that the defendant must satisfy the physical elements of collecting, making, or possessing a document that is in connection with a terrorism act. The mental element that is required is that the defendant is aware that document is in connection with a terrorist act. It is not requisite that the defendant has the intention that the act advances a particular cause. The Australian courts emphasized that due to the unique nature of terrorism, the world implements a more stringent standard, and they follow that methodology.

In addition to Lodhi, Australia held in Benbrika v. The Queen that the following test should be applied determining whether being in possession of a thing was in sufficient connection to a terrorist act. In order to prosecute successfully, the prosecution must prove first that a terrorist act is proposed or contemplated. In this instance, there had not yet been a decision on what kind of terrorist act is required to pass the test. Second, the prosecution must demonstrate that some activity in preparation for that terrorist act is under way, or is proposed, or is contemplated. Third, and finally, the prosecution must prove that the thing of which the defendant is in possession is being used, or is intended to be used, in aid of that preparatory activity for such terrorist act.

The elements required to successfully convict for fostering terrorism in Australia are strikingly similar to those required in a conspiracy under the Pinkerton doctrine. As mentioned earlier, in order to convict as a co-conspirator under Pinkerton, the defendant must be aware of the essential nature of the plan and partake in an overt act to further such plan. Similarly, in Lodhi, the court emphasized that the defendant must physically collect, make, or possess a document and have knowledge that such document was in connection with a terrorist act.

While Australia emphasizes knowledge of such terrorist act, the Netherlands had contemplated the concept of incitement. Geert Wilders, a member of the House of Representatives of the Netherlands, was accused of inciting hatred and discrimination. Wilders was charged with criminally insulting Muslims because of their religion, as well as incitement of hatred and discrimination of Muslims, Moroccans, and other non-Western immigrant because of their race or ethnicity. Incitement of terrorism has become a new issue with the development of modern terrorism. According to some scholars, “prevention of incitement is…argued to be an increasingly crucial element in terrorism prevention”.[3]

Arguably, incitement should be prosecuted “since people do not act on their own initiative against abstract wrongs”[4] incitement plays a crucial role. Specifically, individuals “need to be instilled with a sense of rage and hatred to an extent that they would be willing to take violent action that puts themselves at risk”[5]. For that reasoning, incitement should be prosecuted. Although countries utilize different tests to prosecute, each is emphasizing their innate desire to halt terrorism at an early stage. Whether it is the conspiracy, incitement, or attempted terrorism, the world recognizes as a whole it is critical to prosecute at an earlier stage to combat terrorism.

Stacey Wright is a JD Candidate, Class of 2016. Wright’s entry to the GlobalJusticeBlog is part of an assignment for the course International Criminal Law, taught by Professor Wayne McCormack.

[1] 152 F.3d 88 (2d Cir. 1998).

[2] Id.

[3] Yael Ronen, Incitement to Terrorist Acts and International Law, 23 Leiden J. Int’l Law 645, 657 (2010).

[4] Id.

[5] Id.