International Journal on Criminology Volume 3, Number 1, Spring 2015 | Página 17

Terrorism and Criminal Law
expressly define offenses as political in terms of the special rules to be applied to them. Thus,
in terms of imprisonment, only a restricted number of specified offenses (essentially press
and publishing offenses, and attacks against fundamental national interests) are accompanied
by a special detention regime. In certain cases, in the absence of further legal clarification, a
political offense can be recognized by the sentence it incurs. In criminal matters, there is a
scale of punishments associated with political offenses. If the sentence is one of imprisonment
(détention criminelle) for life, or for a fixed term, the offense is necessarily a political crime.
Notably included in this category are attacks against fundamental national interests, such as
treason, espionage, violent attacks against political targets, conspiracy, and participation in
an insurrection. Using the sentence incurred as a criterion is easy, but insufficient, since it has
no validity beyond the context of criminal activity. Other means of distinguishing terrorism
have been suggested in the developing legal doctrine.
According to one approach, referred to as subjective, a political offense is one that
is inspired by political motives, whatever its result might be. In applying the subjective
criterion, any offense could thus be described as political if its author acted for reasons of
ideology (a complex offense). An abduction would then be a common law offense if it is
financially motivated and aimed at extracting a ransom, but political on those occasions
where it is carried out in the name of political protest. In addition to the fact that it ignores
the traditional principle that the motive should not matter, the subjective approach implies
the need to conduct delicate psychological investigations. Legal opinion has also proposed
a second criterion by which to identify a political offense, an objective criterion. Centered
on the target or outcome of the offense committed, the objective approach treats as political
those offenses directed against the existence, organization, and functions of the state and
public authorities. If it involves a conspiracy against national security, electoral fraud, or
damaging public freedoms, the offense is by nature political, regardless of the motive that
drove the offender.
On the whole, criminal jurisprudence has come down more in favor of the objective
approach, as demonstrated by the famous Gorguloff case (Criminal case, August 20, 1932,
Criminal Law, 1932, 1, p. 121 concl. Matter). In his trial for the assassination of President
Doumer, Gorguloff was sentenced to death—a punishment excluded in political cases at
the time—on the grounds that the murder was a common law felony, even though the
perpetrator had acted for political reasons. Maxime Brunerie, who made an assassination
attempt against President Chirac during the July 14 parade in 2002, was sent before the circuit
court (Cour d'assises) in Paris to answer a common law felony charge. More generally, the
objective approach logically leads to all complex offenses being seen as common law cases.
Unless the law provides otherwise, this solution also holds for “related offenses” (infractions
connexes), despite a degree of hesitation in some of the jurisprudence.
We must also, and with particular care, distinguish terrorism from other forms of
criminal activity and organized crime. There are two arguments for making this distinction.
Firstly, terrorism is fundamentally an ideological crime, whereas organized crime is
motivated principally by the desire for profit. Secondly, while the majority of offenses related
to organized crime are categorized as such because they are committed by an organized
group of people (murder, torture and acts of brutality, abduction and unlawful detention,
theft, fraud, destruction, defacement or damage to property, hijacking of aircraft, ships, or
other forms of transport, and so on), terrorism is of itself an intrinsically organized form
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