GERMAN LAW JOURNAL

Review of Developments in German, European and International Jurisprudence

Editorsin-Chief: Russell Miller; Peer Zumbansen Editors: Miriam Aziz; Gregor Bachmann; Gralf-Peter Calliess; Matthias Casper; Morag Goodwin; Dominik Hanf; Florian Hoffmann; Alexandra Kemmerer; Malcolm Maclaren; Stefan Magen; Ralf Michaels; Petra Minnerop; Hanri Mostert; Betsy Rben; Volker Rben; Christoph Safferling; Marlene Schmidt; Frank Schorkopf; Robert Schtze; Craig Smith; Cornelia Vismann. www.germanlawjournal.com Copyright 2000 - 2004 by German Law Journal GbR. All rights reserved.

Vol. 05 No. 05

Pages 435 - 617

01 May 2004

TABLE OF CONTENTS

SPECIAL ISSUE

SECURITY, DEMOCRACY AND THE FUTURE OF FREEDOM Assessing the Impact of War on Terror on Civil Liberties in Contemporary Democracies

TABLE OF CONTENTS PAGE I

TABLE OF CONTENTS
Oliver Lepsius Freedom, Security and Terror: The Legal State in Germany Viet D. Dinh USA Patriot Act Verena Zller Liberty Dies By Inches German CounterTerrorism Measures And Human Rights Under The Echr And Iccpr Wilhelm Achelphler & Holger Niehaus Dragnet Investigation as Means To Fight Islamic Terrorism in Germany? Christoph J.M. Safferling German Prosecution of 9/11 - A Failure and Disappointment? Ed Morgan Slaughterhouse-Six: Updating The Law Of War Thomas Mertens Criminal Justice after 9-11: ICC or Military Tribunals Saul Newman Terror, Sovereignty And Law: On The Politics Of Violence Eugenia Dumitriu The definition of terrorism in the EU: the framework decision 2002/475/JHA TABLE OF CONTENTS PAGE II

435 - 460

461 - 467

469 - 494

495 - 513

515 - 524

525 - 544

545 - 568

569 - 584

585 - 602

TABLE OF CONTENTS
Reinhard Mller Interview with Federal Constitutional Court Vice President, Justice, Professor Winfried Hassemer The State is no Longer the Leviathan, Ulrich Raulff Interview with Giorgio Agamben Life, A Work of Art Without an Author: The State of Exception, the Administration of Disorder and Private Life Ulrich Raulff Book Review Misery Knows no Law. Giorgio Agamben thinks the State of Exception

603 - 607

609 - 614

615 - 617

TABLE OF CONTENTS PAGE III

SPECIAL ISSUE Liberty, Security, and Terrorism: The Legal Position in Germany
By Oliver Lepsius*

A. The new quality of terrorist threats as a legal problem Just one day after the attacks of September 11, 2001, the German minister of the interior, Otto Schily (SPD), demanded a new security concept. Immediately the existing security laws and precautions were placed under special scrutiny in search for any sorts of deficiencies. The results of these reviews were two legislative initiatives, termed security packages or anti-terror packages, which changed or altered numerous existing statutes. The new security laws contain a number of infringements into fundamental civil rights and liberties. The legislative process thus had to raise the issue of the relationship between security and civil liberties and weigh the balance between the protection of individual rights and collective security. This, however, does not constitute a new challenge for the German legislature. The collision of security interests with individual civil liberties has caused a legal problem in Germany for some time. September 11 might constitute a political watershed, but in the context of civil liberties in Germany, this date does not represent an important mark. The current measures have to be understood within the context of an at least thirty-year-long period of continuous weighing between security and freedom.1 Important decisions were made in the 1970s in reaction to terrorist activities by the Rote Armee Fraktion (RAF) with its zenith in the autumn of 1977. Subsequent statutes restricting personal freedom caused an intense debate about the acceptable amount of restrictions on personal liberties in order to avoid future terrorist attacks.2 The legislature made principal decisions during that time, which were
Professor for Public Law, Comparative Public Law and Legal Philosophy, University of Bayreuth. Email: Oliver.Lepsius@uni-bayreuth.de. The article was previously published in German in: 32 LEVIATHAN 64-88 (2004).
* 1 See generally Winfried Brugger & Christoph Gusy, Gewhrleistung von Freiheit und Sicherheit im Lichte unterschiedlicher Verfassungsverstndnisse, 63 VERFFENTLICHUNGEN DER VEREINIGUNG DER DEUTSCHEN STAATSRECHTSLEHRER 101, 151 (2004); MARKUS MSTL, DIE STAATLICHE GARANTIE FR DIE FFENTLICHE SICHERHEIT UND ORDNUNG (2002); PETER-TOBIAS STOLL, SICHERHEIT ALS AUFGABE VON STAAT UND GESELLSCHAFT (2003). 2 See TERRORISMUS CONTRA RECHTSSTAAT (Rudolf Wassermann ed., 1976); Hans-Jochen Vogel, Strafverfahrensrecht und Terrorismus eine Bilanz, in NEUE JURISTISCHE WOCHENSCHRIFT 2117 (1978); Uwe Ber-

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examined and approved by the German federal constitutional court.3 In other words, the fundamental problems of the violation of constitutional rights through various terrorist statutes have already been discussed in the 1970s. The following decade saw a debate over the existence and scope of a basic right to security.4 While security was seen as antagonistic to civil liberties in the 1970s, in the 1980s their relationship changed and was seen as more equal. Security was named a basic right and became a state duty (Staatsaufgabe).5 Because of the antagonistic viewpoint of the previous decade, security now achieved a more equal, if not even a higher constitutional justification. In the 1990s, a new security debate arose over the gradual dismantling of border controls under the Schengen agreement of the EU leading to a new set of statutes enhancing security. Border controls were moved functionally into the interior of the country and were justified with a higher need for security due to cross-border organized crime.6 At the end of the year 2001, there was no doubt among the public and in political circles that the attacks of September 11 warranted immediate legislative measures. This view was supported by the widely shared belief that the existing legal framelit/Horst Dreier, Die legislative Auseinandersetzung mit dem Terrorismus, in PROTEST UND REAKTION 223 (F. Sacke & H. Seinert eds., 1984); WERNER KLUGHARDT, DIE GESETZGEBUNG ZUR BEKMPFUNG DES TERRORISMUS AUS STRAFRECHTLICH-SOZIOLOGISCHER SICHT (1984); Hans-Joachim Rudolphi, Gesetzgebung zur Bekmpfung des Terrorismus, in JURISTISCHE ARBEITSBLTTER 1 (1979); SICHERHEIT DURCH GESETZ? (Hans-Peter Bull ed., 1987); MARTINA JUNKER, ANALYSE AND KRITIK DER STRAFVERFAHRENSRECHTLICHEN TERRORISMUSGESETZGEBUNG (1996).
3 German Constitutional Court, BVerfGE 46, 1 (4.10.1977) (prohibition of contact, no interim order); BVerfGE 46, 160 (16.10.1977) (Schleyer kidnapping); BVerfGE 49, 29 (1.8.1978) (statute of the prohibition of contact); BVerfGE 65, 1 (15.12.1983) (census). 4 JOSEF ISENSEE, DAS GRUNDRECHT AUF SICHERHEIT (1983); Josef Isensee, Gemeinwohl und Staatsaufgaben im Verfassungsstaat, in HANDBUCH DES STAATSRECHTS DER BUNDESREPUBLIK DEUTSCHLAND, BAND III para. 59 (1988); GERHARD ROBBERS, SICHERHEIT ALS MENSCHENRECHT (1987); Christoph Gusy, Grundpflichten und Grundgesetz, in JURISTENZEITUNG 657 (1982); Christoph Gusy, Rechtsgterschutz als Staatsaufgabe Verfassungsfragen der Saatsaufgabe Sicherheit, in DIE FFENTLICHE VERWALTUNG 573 (1996). For critical assessments of the basic right to security, see PETER-ALEXIS ALBRECHT, DIE VERGESSENE FREIHEIT, KRITISCHE VIERTELJAHRESSCHRIFT FR GESETZGEBUNG 125 (2003); JUTTA LIMBACH, IST DIE KOLLEKTIVE SICHERHEIT DER FEIND DER INDIVIDUELLEN FREIHEIT? 5 (2002). 5 For a brief overview of the development with specific regard to environmental law, see OLIVER LEPSIUS, BESITZ UND SACHHERRSCHAFT IM FFENTLICHEN RECHT 420 (2002).

See Erhard Denninger, Schleierfahndung im Rechtsstaat?, in FESTSCHRIFT FR EKKEHART STEIN 15 (2002); Christoph Gusy, Vom Polizeirecht zum Sicherheitsrecht, in STAATSWISSENSCHAFT UND STAATSPRAXIS 5 187 (1994); Christoph Mllers, Polizeikontrollen ohne Gefahrenverdacht, in NEUE ZEITSCHRIFT FR VERWALTUNGSRECHT 382 (2000); Volkmar Gtz, Die Entwicklung des Polizei-und Ordnungsrechts (19941997), in NEUE ZEITSCHRIFT FR VERWALTUNGSRECHT 679 (1998); Hans Lisken, Verdachts- und ereignisunabhngige Personenkontrollen zur Bekmpfung der grenzberschreitenden Kriminalitt?, in NEUE ZEITSCHRIFT FR VERWALTUNGSRECHT 22 (1998).
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work contained considerable security problems and deficiencies. The suggestive powers of the images of the terrorist attacks channeled the development of political opinion and fuelled legislative activism. Time pressure, hence, became a predominant element in the ensuing legislative process. Whether a need for legislative regulation existed was never in doubt; the question of the if had been answered by the evidence and needed no justification. The question of the how was determined by the immediate presentation of the two security packages by the department of the interior. An analysis of which measures could possibly have prevented the attacks and which legislative changes would have been necessary to create these measures, was never attempted, not the least because of the urgency to act quickly. Legislative reaction was triggered by the events of September 11, 2001, but not necessarily motivated by them. The attacks were not seen as a deed of individual terrorists but as a de-individualized phenomenon, constituting a new form of terrorist threat. This novel threat did not seem to arise from individual terrorists, but from a general development in a globalized world in which individuals are merely exchangeable tools in the hands of powers that work in the background and can be assured the protection of some states. The legislative initiatives were not meant to address the specific deeds of September 11, 2001, rather they are aimed at what is perceived as an ever present threat by Islamic terror organizations. Only this perspective explains why in the immediate aftermath of September 11 legislative changes were seen as unavoidable, even before the terrorist attacks were connected to possibly inappropriate behavior by German authorities. The security packages are thus not reactions to the attacks as such but constitute a political symbolic act, associated with the actual events. The lawmakers were not motivated by the actual threat, rather by the imagination of a new and rather vague or unknown threat. This is evident, for example, in the reasoning brought forward by the minister of the interior, Schily, during the debate about the so-called second security package: We have to be aware what place was attacked: New York is the most international city in the world. The United Nations has its headquarters there. More than eighty nations had citizens among the victims. New York a symbol for the desire for freedom in this world, for democracy in this world was the chosen point of attack. Many of those that were persecuted under the terror regime of the National socialists or under the rule of other totalitarian systems sought refuge in New York. This is deeply rooted in the historical consciousness of humanity. This is reflected in its immense importance.7

7 Otto Schily in the German Bundestag, 14th electoral period, session number 209, December 12, 2001, BTPlenarprotokoll 14/209, p. 20758 (B).

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One thing is especially evident in his remarks, which are indicative of many others: Freedom in general, democracy in general and the consciousness of the Western world were seen as threatened. The lawmakers reacted less to the actual dangers to life as to the symbolic threat to the value system of the entire Western world. This perception of the events is important in order to explain the ensuing legislative reaction. On the one hand, this view explains why a development of opinion about the if of legislative action was absent and why the how was only marginally and under intense time pressures dealt with. On the other hand, this perception highlights the manner in which the new initiatives addressed fundamental civil rights and liberty issues. Important is that the level of threat was not attributed to individual terrorists, but was seen as the consequence of a qualitatively new danger, which did not emanate from the individual attackers themselves but rather from an intangible network of terror. Terrorism was not perceived as the summation of individual deeds but rather as the result of collective, evil structures. The principally new aspect of these attacks, which also determined the legislative balancing of security and freedom, could only be discerned by not recognizing the individual as the one responsible for the crimes committed. Consequently, the legislative initiative by the governing coalition concluded that nobody could ensure that Germany would not become the victim of such attacks as well.8 This perception is surprising given that terrorism is not a new phenomenon for Germany and for Europe in general. The European public has exhibited a certain degree of normalcy about the terrorist attacks in Northern Ireland and the Basque region. The fact that terrorism in certain regions of the EU is part of everyday life, had previously not led to public pressure for action. Characterized as regional conflicts, these situations were not perceived as constituting a general threat. In contrast to these forms of terrorism, the September 11 attacks were seen as a global threat, not simply a regionally restricted conflict. Thus, the terrorist attacks of the RAF during the 1970s were regarded as qualitatively different from the new form of terrorism: responsibility for the old attacks could be assigned to a limited circle of people. The dangers arose from specific, known perpetrators and their limited surroundings. It was possible to individualize terrorism; this was deemed no longer possible after September 11. The relatively quickly identified perpetrators were seen as the tools of a network of terror. The source of danger is no longer the individual perpetrator but rather impersonal networks and organizations harbored in the diffusion of Islamic fundamentalism.

8 BT-Drs. 14/7386 (new), p. 35 Entwurf der Fraktionen SPD und Bndnis 90/ Die Grnen eines Gesetzes zur Bekmpfung des internationalen Terrorismus (Terrorismusbekmpfungsgesetz).

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Thus, the novel quality of terrorist threats since September 11 can be narrowed down to two aspects: The elimination of a local context and the diffusion of an individual context of terrorist actions. Terrorism has become de-personalized and deregionalized. The new threat is global and can no longer be limited to a few perpetrators. Only on the basis of this fundamental perception can one comprehend why this was declared to be a qualitatively new level of threat and why certain legislative measures were taken. The evaluation of the relationship between civil liberties and security has to be seen in this context. B. The Measures of the Two Security Packages I. The first security package The first security package was passed by the cabinet only eight days after the attacks, on September 19, 2001, and contains three main points. Section 129a of the Criminal Code sanctions the creation of terrorist organizations. This section is complemented by section 129b which encompasses the creation of foreign organizations and even punishes demonstrations of support.9 This is intended to close a legal loophole since sections 129 and 129a of the Criminal Code are only applicable to organizations that are represented within Germany in at least the form of a partial organization.10 Prior to the enactment of s. 129b Criminal Code members of a foreign criminal organization operating in Germany could only be prosecuted subject to the limiting condition in paragraph 129.11 Section 129a was added to the Criminal Code in reaction to the terrorist attacks of the RAF in the 1970s. Its purpose is to protect public safety and the order of the state by declaring the planning stage as part of the illegal activity. This section has not been without controversy in recent years; the parliamentary factions of Bndnis 90/ Die Grnen12 and the PDS13 have both demanded its elimination. However, the introduction of section 129b of the Criminal Code can only be partially explained as a reaction to the attacks of September 11. Already in December of 1998, the EU member states placed themselves under an obligation to prosecute the participation in a
9 See legislative initiative of the government, Entwurf eines Strafrechtsnderungsgesetzes paragraph 129b Criminal Code, BT-Drs. 14/7025 4 October 2001. 10 11

See Federal High Court of Justice, decisions in criminal law, BGHSt 30, 328 (329). BT-Drs. 14/7025, p. 6.

12 BT-Drs. 13/9460 of 11 December 1997. Endorsing this position: Rupert v. Plottnitz, section 129a StGB: Ein Symbol als ewiger Hoffnungstrger, Zeitschrift fr Rechtspolitik 2002, p. 351. 13

BT-Drs. 14/5832 of 5 April 2001.

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criminal organization on EU territory, irrespective of the location at which the organization has its operational basis or where it perpetrates its criminal deeds.14 Thus, the enactment of s. 129b Criminal Code was primarily motivated by the fight against cross border, regional terrorist activity in Europe (for example, the Basque region). Another aspect of the first security package was to abandon the Religionsprivileg (religious privilege) in the Vereinsgesetz (statute concerning associations).15 According to section 3 of the Vereinsgesetz, all associations can be prohibited if their goals contravene existing laws or the constitutional order or the spirit of understanding among the peoples of the world. This prohibition clause is an expression of the Gesetzesvorbehalt (limitation clause) of the constitutional right to form associations, as expressed in Art. 9 II Grundgesetz (German Basic Law). Pursuant to the so-called religious privilege under section 2 subsection 2 number 3 of the Vereinsgesetz, the provisions including the prohibition clause in section 3, are not applicable to religious communities and organizations, which promote the common cultivation of a faith. Prior to its amendment the statute thus did not allow for the prohibition of extremist religious communities. With the elimination of the religious privilege this is now possible. The amendment primarily intended to restrict extremist Islamic groups. Although this measure was taken on the occasion of the events of September 11th 2001 it was not primarily motivated by them. To abandon the religious privilege had previously been discussed in the context of specific cases in Germany, in which organizations used the observation of their faith as a cover for pursuing extremist goals. The elimination of the religious privilege passed into law on December 8, 2001.16 In addition, the first security package contained the announcement that airport security was to be enhanced by a mandatory security check of all airport personnel. Its legal implementation was the object of the second security package. The measures of the first security package can thus be seen in a chronological and political context, but not a material context with the attacks of 11 September 2001.

14

Reasoning, BT-Drs. 14/7025, p. 6.

15 Legislative initiative of the federal government Entwurf eines Gesetzes zur nderung des Vereinsgesetzes, BT-Drs. 14/7026 of 4 October 2001. 16

BGBI. I 2001, p. 3319.

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II. The second security package The second security package contains further regulations..17 It consists of a so called Artikelgesetz (article law) that changes and amends several regulations in a number of different statutes. Nearly 100 regulations in 17 different statutes and 5 statutory orders were amended by the article law. The term package is thus fitting. The second security package or anti-terror package embodies the answer to what is perceived as a global threat by Islamic terrorism. The purpose of the act is the early detection of terrorist activities by the security authorities. While the first security package focuses on repressive measures, the second security package emphasizes preventive protection. After less than an hour of debate in the second and third reading stage, the Act was passed into law on December 14, 2001; the second chamber followed suit on December 20. On January 1, 2002 the Act finally came into force.18 The main purpose of the new regulations was to increase the powers and to enlarge the range of activities of security authorities such as the Bundesamt fr Verfassungsschutz (Federal Office of the Protection of the Constitution - BfV), the Militrischer Abschirmdienst (Military Counterespionage Service - MAD), the Bundesnachrichtendienst (Federal Intelligence Services BND), and the Bundeskriminalamt (Federal Criminal Police Office BKA). In addition, the exchange of data information between various authorities has been facilitated. Other important changes concern the Auslnderrecht (alien law) and the Asylverfahrensrecht (asylum rules).19 The entry into Germany of perpetrators of terrorist activities is to be prevented, measures to secure identities with Visum procedure and border controls are to be improved, and the use of armed Air Marshals from the Federal Border Guard on German flights is made possible. Further, the law contains regulations for the security checks on personnel in defense or other necessary installations, to allow for the

17 Legislative initiative of the governing coalition of SPD and Bndnis 90/ Die Grnen Entwurf eines Gesetzes zur Bekmpfung des Terrorismus (Terrorismusbekmpfungsgesetz), BT-Drs. 14/ 7386 (new) of 8 November 2001. 18 BGBI. I 2002, p. 361. Critical assessments of the law by Helmuth Schulze-Fielitz, Rainer Hamm, Innere Sicherheit: Terrorismusbekmpfung auf Kosten der Freiheit?, in SICHERHEIT DURCH RECHT IN ZEITEN DER GLOBALISIERUNG 25, 45 (ADOLF ARNDT-KREIS ed., 2003); Martin Nolte, Die Anti-Terror-Pakete im Lichte des Verfassungsrechts, in DEUTSCHES VERWALTUNGSBLATT 573 (2002); Susanne Rublack, Terrorismusbekmpfungsgesetz: Neue Befugnisse fr die Sicherheitsbehrden, in DATENSCHUTZ UND DATENSICHERHEIT 202 (2002); ERHARD DENNINGER, FREIHEIT DURCH SICHERHEIT? 96 (Strafverteidiger 2002); Manfred Baldus, Prventive Wohnraumberwachung durch Verfassungsschutzbehrden der Lnder, in NEUE ZEITSCHRIFT FR VERWALTUNGSRECHT 1289 (2003). 19 Further information furnished by Dominik Bender, Verpolizeilichung des Auslnderrechts? Die auslnderrechtlichen Manahmen des Gesetzgebers nach dem 11 Sept. 2001, in KRITISCHE JUSTIZ 130 (2003).

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inclusion of biometric features in identity cards in order to facilitate identity checks, and to allow for the redesign of the grid search through the inclusion of certain social information. The regulations concerning the tasks and powers of the security authorities have been limited to a five-year period. They will seize to be in effect on December 31, 2006, unless they are extended beyond this point by the legislature. C. Constitutional means for the protection of freedom The new legal rules have great impact on individual civil liberties. In what manner do they conflict with constitutional limits? Before I will focus on specific changes in existing statutes, that is to say more generally on the reformulation of security interests, I find it best to briefly summarize and explain the importance of the constitutionally guaranteed freedoms. That is the starting point from which I will proceed to examine the relationship between civil liberties and (national) security more closely. I. The autonomy of the individual Individual freedom is a constitutionally recognized superior good. The constitutional order serves the autonomy of the individual; at the same time, autonomy is a prerequisite for the constitutional order, since the constitution declares (autonomous) human beings to be the legitimating subjects of the constitution. The constitutional protection of freedom does not only aim at the protection of the individual, but also constitutes a command of the democratic constitutional order, which needs free individuals to form the democratic community. The protection of individual liberties thus not only supports individual development but also enhances democratic participation and hence the existence of a plural and open society. The constitution does not solely protect the autonomy of the individual out of respect for human individuality. Autonomy or individual freedom constitutes a prerequisite for a democratic polity. Further, it is a precondition for serving as a constitutional source of legitimation. The centrality of the individual human being the source of the entire legal system, as well as its addressee, is expressed in the first article of the German constitution, the Basic Law, which reads: Human dignity is inviolable. To respect and protect it is the duty of all state authority. I highlight these rather fundamental aspects to indicate why for some time now, irrespective of the security statues, a process has begun that modifies the principal position of the individual in the constitution. I will discuss this in greater detail later in the paper. II. Basic rights The constitution protects individual liberties primarily through the basic rights which are intended to ensure the comprehensive protection of the individual. With

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respect to the enactment of the so-called security statutes the following basic rights are of special relevance: Art. 10 Basic Law (concerning the secrecy of mail and telecommunications), Art. 2 I Basic Law (general freedom of action), Art. 2 I Basic Law (rights of informational self-determination) and Art. 16 Basic Law (the rights to asylum). The constitution does allow in principle for the statutory limitation of basic rights if the limitation can be justified in constitutional terms.20 The basic rights are subject to a system of constitutional limitation-clauses (legislationreservation-clauses) that allow the legislatures to infringe on basic rights as long as the infringement can be justified within the terms of the limitation clause. In deciding whether the limitation of a right or freedom is justified a court will usually need to weigh and assess the competing values at stake through the use of the proportional test, the so-called Abwgung. Whether a limitation of a right or freedom is justified primarily depends upon whether or not the statutory limitation of the basic rights is proportional, i.e. whether or not the infringement is useful and necessary to achieve the desired objective, and whether it is in a deeper sense proportionate to the achievement of purpose (so-called proportionality-principle, Verhltnismigkeitsgrundsatz). The purpose has to be legitimate and must serve a higher legally protected right than the basic right that is protected in the concrete case. A few specific basic rights contain a qualifizierte Gesetzesvorbehalte (qualified legislation-reservationclause) requiring an increased level of justification. In deciding whether the limitation of a right or freedom is justified a court will usually need to weigh and assess the competing values at stake, e.g., a civil liberty of one individual is balanced against a conflicting civil liberty of a different individual. This weighing is meant to achieve an acceptable compromise between the competing constitutional positions concerned. Apart from conflicting basic rights, an infringement of a fundamental right can be justified not only by recourse to conflicting basic rights but also to predominant community rights, i.e. a common good. These rights do not necessarily have to be anchored in civil rights. Differing opinions exist as to whether the grundgesetzliche Kompetenzvorschriften (constitutional enumeration of powers) or the functioning of state institutions and organs are sufficient to legitimize and justify the limitation of fundamental rights.21 However, it is
See Donald P. Kommers, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 35-37, 305, 366 (Durham 2d ed. 1996) (1989); DAVID P. CURRIE, THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY 20, 179-181, 194, 307-310 (1994); W. Cole Durham, General Assessment of the Basic Law An American View, in GERMANY AND ITS BASIC LAW 37 (P. Kirchhof & D. Kommers eds., 1993); BODO PIEROTH & BERNHARD SCHLINK, GRUNDRECHTE STAARTSRECHT II para. 6 (16th ed. 2000); Peter LercheGrundrechtsschranken, in Handbuch des Staatsrechts, Volume V para. 122 ( J. Issensee & P. Kirchhof eds., 1992); Konrad Hesse Grundzge des Verfassungsrechts der Bundesrepublic Deutschlands para. 10 (20th ed. 1995).
20 21 Authorized by the German federal constitutional court BVerfGE 69, (1); opposed by judges Mahrenholz and Bckenfrde, German federal constitutional court BVerfGE 69, 57 (64): If enumeration of legislative powers or organizations regulations that have been materially elevated are used as counter

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generally accepted that while the rights that are to be reconciled have to possess constitutional status, they do not necessarily have to originate from basic rights.22 In the end, the protection of individual liberties is thus very much influenced by the terms of the limitation clauses contained in the constitution (i.e. the justification requirements, which the constitution has created for the infringement of basic rights,) and by the value that is assigned to the protected rights that are weighed against each other. The German constitutional dogma is characterized by a highly differentiated infringement and barrier system, which has led to a high standard of effective and comprehensive basic rights protection. At any rate, it is impossible to state (as a rule) that community rights -in general- trump individual liberties. The preeminence of either one can not be decided in general but has to be decided on a case to case basis in context with a specific constitutional question. III. Recourse to the court and judicial review Another instrument in the protection of liberties is the legal protection guarantee of Art. 19 IV Basic Law. While this article is systematically- considered part of the basic rights and is generally understood as such, it deserves special mentioning with regard to the regulations stipulated in the second security package. According to Art. 19 IV Basic Law every individual has the right to bring a suit to the courts if the individuals rights have been injured by public authorities.23 An important exception is made for the secrecy of mail and telecommunications (Art. 19 IV 3, Art.10 II 2 Basic Law).24 In such cases, in which the infringement of basic rights serves the protection of the liberal democratic order, the maintenance of the Federal State, its security or the security of any of the Lnder, the empowering law can stipulate that the claim for judicial review is replaced by an examination of a parliamentary committee. A typical example of this is to be found in the area of the
positions in the weighing process, nearly all limitations imposed on basic rights can be legitimized in the framework of constitutional interpretation.
22 German federal constitutional court BVerfGE 28, 243 (260): Only the conflicting basic rights of third persons and other legal norms that enjoy constitutional rank can, in consideration of the unity of the constitution and the normative order supported through it, in exceptional cases limit even absolute basic rights in specific relations. Conflicts that arise in such a context can only be solved through an analysis of which constitutional condition enjoys more weight in the consideration of the question at hand. The weaker norm is only allowed to be pushed back to such a degree as is logical and systematically necessary; its factual context has to be respected.

See Eberhard Schmidt-Amann, Kommentierung von Artikel 19 Absatz 4 GG, in T. MAUNZ/G. DRIG GRUNDGESETZ (24th ed. 1985).
23 24 See Christoph Gusy, Kommentierung von Artikel 10, Rdnr. 92-99, in I GRUNDGESETZ (H.v. Mangold et al. eds., 4th ed. 1999).

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intelligence services. In addition, the infringement does not have to be brought to the attention of the individual concerned, i.e. the individual will be unaware that his or her telephone communications were under surveillance. As a consequence, he or she cannot apply for judicial review of the action or decision in question.25 The parliamentary commission which has been established under Art.10 II 2 Basic Law assumes a supervisory function in order to compensate for the loss of control of the courts and the individual; it is meant to ensure effective control while also guaranteeing secrecy. IV. Separation of powers The constitution protects individual liberties primarily through the basic rights, as well as through the horizontal and vertical separation of powers, i.e. the separation of powers on the federal level and between the Federal State and the Lnder. In contrast to the United States, the implementation of federal law is in principle the task of the Lnder. Federal administration is only allowed in a few, constitutionally determined exceptions. The division of public authority between the Federal State and the Lnder serves the protection of freedom. It is meant to prevent that jurisdiction and competences are concentrated on one level. An example of this kind of liberty securing measure is the separation between the intelligence services on the one hand, and the prosecuting authorities on the other. Criminal prosecution and the police powers are the responsibility of the Lnder; the federal level does not have jurisdiction in these areas. In Art. 73 I Nr. 10, Art. 87 I 2 Basic Law the federal level is only given the authority to regulate the cooperation between the federal level and the Lnder in the areas of criminal police and the protection of the constitution. The separation of intelligence services and criminal prosecution is not only to be understood on an organizational level. It also prevents that the authorities responsible for the protection of the constitution hold police powers.26 This is meant to prevent that a centralization and accumulation of powers at the federal level would lead to an infringement by federal authorities on the jurisdiction of the Lnder in areas such as defense against dangers (police powers) and criminal prosecution. Likewise the creation of an Reichssicherheitshauptamt (imperial security authority) is to be constitutionally prevented. The German federal
25 See BVerfGE 100, 313 (361, 364): Article 10 of the constitution arranges for a claim to be informed about surveillance within the framework of effective constitutional protection. This cannot be limited to the judicial protection of the law as expressed in article 19, section 4 of the Basic Law. Even the notification requirements underlie the legal conditions of article 10, section 2, sentence 2 of the Basic Law. 26 Erhard Denniger, Die Trennung von Verfassungsschutz und Polizei, in ZEITSCHRIFT FR RECHTSPOLITIK 231 (1981); Christoph Gusy, Das verfassungsrechtliche Gebot der Trennung von Polizei und Nachrichtendiensten, in ZEITSCHRIFT FR RECHTSPOLITIK 45 (1987).

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constitutional court has stated that the central authorities cannot be combined with an implementing police force for the purposes of protection of the constitution and the intelligence services.27 According to the German federal constitutional court, the separation of powers is founded on the Rechtsstaat (rule of law), federalism and the protection of the basic rights.28 The protection of freedom is guaranteed in the constitution through substantive safeguards (basic rights), through procedural safeguards (recourse to the courts) and through organizational and jurisdictional safeguards (enumerated powers on the federal level, separation of powers). Furthermore, the constitution emphasizes the central role of the individual within the constitutional order, being the source and end of the entire system of law. To enhance individual autonomy and freedom is the prime responsibility of the constitutional state. D. Limits on freedom through the counter-terrorism law The counter-terrorism law (second security package), which came into effect on January 1, 2002, impacts on the protection of freedom on all four previously discussed levels.29 The new law includes regulations that severely infringe upon basic rights, it affects judicial review, the recourse to the courts and it alters the organizational and jurisdictional safeguards. Most problematic are fundamental changes in the position of the individual as an autonomous liberal being. I. Basic rights infringements Several new infringements upon basic rights have been created. The Bundesamt fr Verfassungsschutz (Federal Office for the Protection of the Constitution - BfV) and the Bundesnachrichtendienst BND (Federal Intelligence Service BND) have been given the competence to demand information about accounts and account holders from banks and other financial institution.30 In addition they can request informa27

BVerfGE 97, 198 (217).

28 Apart from German federal constitutional court BVerfGE 97, 198; See also BVerfGE 30, 1 (17); BVerfGE 67, 157 (178, 181); BVerfGE 100, 313 (358). 29 Critical assessments by: Thomas Gro, Terrorbekmpfung und Grundrechte. Zur Operationalisierung des Verhltnismigkeitsgrundsatzes, in KRITISCHE JUSTIZ 1, 8 (2002); Erhard Denninger, Freiheit durch Sicherheit, in STRAFVERTEIDIGER 96 (2002); Jutta Limbach, supra note 4, at 8-10; Burkhard Hirsch, Der attackierte Rechtsstaat. Brgerrechte und innere Sicherheit nach dem 11. September, 159 vorgnge 5 (2002), Heinz Dx, Globale Sicherheitsgesetze und weltweite Erosion von Grundrechten, Zeitschrift fr Rechtspolitik 2003, 189. 30

Counter-terrorism law, Art. 1 BVerfSchG; Art. 2 MADG; Art. 3 BNDG; Art. 10 BKAG.

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tion from the post office, telecommunications and airline companies in order to gather information about the financial flows, account movements and communication paths of various groupings. According to the new regulations, banks and airline companies are required to present detailed information about their customers to the BfV and the BND without compensation. The customers in question cannot be informed about these requests in order to prevent investigations from being compromised. In accordance with the limitation clause contained in Art.10 Basic Law, which ensures the protection of post and telecommunication traffic, as well as in Art. 2 I Basic Law, which protects the general freedom of action, BFV and BND are empowered to request personal data. Despite the right to informational self determination such data may be stored. Thus, several statutory limitations of basic rights are created that need a constitutional justification. Similar infringements upon basic rights follow from the enlarged competences granted to the Militrischer Abschirmdienst (Military Counterespionage Service MAD) and the Bundesnachrichtendienst (Federal Intelligence Service BND), which is the branch of the intelligence services that is responsible for foreign intelligence gathering. The MAD is concerned with the gathering and analyses of data collected about members of the federal army and the department of the defense within the context of whether these people are participating in acts, which run counter to international understanding and the peaceful cohabitation of peoples. The new regulations also empower the MAD to gather information from telecommunications and telephone services. The basic right as expressed in Art. 10 Basic Law (the secrecy of mail and telecommunications) is affected. The BND is given the same competences as the BfV. This is meant to enable the BND to examine the cash flow of persons that reside in a foreign country using German bank accounts. These intrusions into civil liberties also affect persons that while living in a foreign country are nevertheless entitled to the protection granted in Art. 2 and Art. 10 Basic Law. II. Judicial review and recourse to the courts The secrecy surrounding these various data gathering activities not only constitutes an infringement upon basic rights but also limits the scope of the legal protection granted in Art. 19 IV Basic Law. Because of the exception mentioned in Art. 10 II 2 Basic Law, the gathering of data and information in the telephone services is not placed under judicial control but rather under the scrutiny of a parliamentary

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committee and the so-called G 10 commission, (named after the article 10 law).31 The parliamentary committee will be informed about measures limiting the secrecy of mail and telephone communications and has to annually report to parliament about the enforcement as well as the scope and method of these measures. Limitations on international communications (for example, automatic telephone surveillance with certain search terms) require the permission of the committee. In addition there is, as has been mentioned above, the G 10 commission. It consists of four members of parliament, which have been selected by the parliamentary committee. The commission decides about the legitimacy and necessity of these measures, on the basis of both the commissions constitutional function and individual complaints. The commission has to be informed about any limiting measures taken. The two committees are intended to ensure an independent review of surveillance measures. As such they are a replacement for the constitutionally guaranteed judicial review. But since the surveillance measures are not known by those affected by it, their control function remains hidden as well and is made public only through their annual report. As such the control function while internally tied to specific cases, externally remains anonymous and offers the public only a very abstract picture of the measures taken. The controls guaranteed in the article 10 law thus take the place of judicial review, not without modifying it considerably. People under surveillance are not informed and thus cannot protest against the measures but have to trust that the parliamentary committees will objectively examine their case. The enlarged competences in information gathering in the area of telephone communications affect those under surveillance not only substantively but also change their procedural rights, especially the possibility of recourse to the courts. A factually limited area of regulation is passed to a special control regime and thus removed from regular constitutional control mechanisms. Therefore, it is important that the area subject to these exemptions remains small and tied to conditions, which are precisely predetermined.32 As a corollary to the enlarged competences of the security authorities, recourse to the courts is limited.
31 Paras. 14, 15 of the law dealing with the limitations on secrecy of letter, mail and telephone communications, in the version from June 26, 2001, BGBl I S.12542298. The earlier version of this law contained these provisions in article 9. For more information on these regulations, see Christoph Gusy, Der Schutz vor berwachungsmanahmen nach dem G-10, in NEUE JURISTISCHE WOCHENSCHRIFT 1581 (1981); Kay Waechter, Geheimdienstkontrolle erfolglos, folgenlos, umsonst?, in JURA 520 (1991). 32 See the restrictive interpretation of article 10, section 2 of the constitution through the German federal constitutional court BVerfGE 30, 1 (17); The interpretation of Art. 8, European Convention of Human Rights in the verdict of the European High Court of Human Rights in NEUE JURISTISCHE WOCHENSCHRIFT 1755 (1979).

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Importantly, the new law requires the intelligence services to report to the parliamentary committee, which needs the transfer of data and facts on the specific cases in order to fulfill its monitoring function. However, the counter-terrorism law does not require that the committee be informed in all cases.33 There are certain areas, which remain outside the parliamentary control simply because of the lack of knowledge about the amount and kind of surveillances taking place. The elimination of the parliamentary committee from the control function might be explained by the fear that secrets could be leaked by the members of parliament. In these cases it is the G-10 commission alone that maintains the monitoring function. In general, though, oversight through a system of law comes at the cost of a certain amount of publicity. The new regulations thus create an area of infringements upon basic rights that the public remains unaware of. III. Separation of powers and the organization of public agencies Moreover, civil liberties are limited by new regulations concerning organizational competences. A number of new regulations are worth mentioning. The federal agency for the protection of the constitution (Bundesamt fr Verfassungsschutz - BfV) has been entrusted with the responsibility to observe attempts to disturb the international understanding or the peaceful cohabitation of peoples. Up to now, the responsibilities of the BfV were limited to the domestic setting according to section 3 of the relevant statute (BVerfSchG). The redesigned regulations no longer include the domestic limit, which enlarges the jurisdiction of the BfV and allows it to engage in investigations not limited to the actual area of concern. The new responsibilities and competences have recreated the BfV as an independent investigative authority. It is becoming increasingly difficult to differentiate between purely preventative measures of investigation and repressive criminal prosecution. This leads to a relativization of the protection of individual rights. The freedom protecting aspect of the horizontal and vertical separation of powers is dispensed with under the new regulations of the security inspection law, Sicherheitsberprfungsgesetz (SG).34 The law requires that all personnel that works in defense related or other vital institutions have to submit to a security check. This, from now on, includes airport personnel, i.e. people that work in an area that is characterized by a high fluctuation of workers with predominantly low qualifications and payment. So far, only bearers of secrets had to undergo security checks; the checks were based on an annex to the special federal competences of the secu33 34

See para. 8, sections 6, 8; and para. 9, section 4, BVerfSchG. Counter-terrorism law, article 5 (SG).

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rity authorities. The federal authorities, however, lack the legislative competences to remodel security checks into a preventive instrument of defense against threats, since the Lnder hold the jurisdiction in this regard. IV. The de-individualization in the law of security Finally, the new regulations also touch upon an area of individual liberties that can hardly be anchored in the constitution. According to established police and security law a person who causes a danger by the way in which he or she behaves (or is in control of an object from which a danger arises), is responsible. The existence (or reasonable presumption) of a danger is a prerequisite for police intervention. Duties can only be placed on those persons that through their own behavior cause the implementation of defensive measures. Responsibility thus has to be individualized. He or she has to be distinguishable from society as a whole by his or her deeds, through his or her own actions. He or she has to have caused potential danger. Only in this case a duty to act can be placed upon him or her. Otherwise her or she would not be the appropriate addressee of security measures; since, how is a person to behave, how can a person do his or her part in averting a menacing threat if there is no specific capability that distinguishes him or her from anybody else? 1. Police controls without suspicion In recent years, the police law doctrine of individual liability has slowly been abrogated in favor of new security laws which empower the police to control people without prior suspicion (Schleierfahndung).35 According to these laws, any person can be subjected to an identity establishing inspection by the police of the Lnder or the Federal Border Guard while traveling in trains or at airports and train stations and in some instances also within a 30- kilometer radius of the federal borders. These regulations represent a reaction of the lawmakers on the federal and Lnder level to the opening of the borders. They were intended to compensate for the loss of border controls by enlarging the competences for domestic control within the borders. The Polizeipflicht (police duty) is directed towards individuals and can easily be fulfilled by the presentation of valid identification papers. Nevertheless, these new police competences constitute a problem for individual freedom: Police controls without prior suspicion address the individual who has not given any reason for the control by his or her behavior. The individual to be controlled has neither caused a danger, nor given a reason for suspicions to arise. The citizen cannot contribute to the elimination or prevention of danger through his or her ab-

35 Concerning the Federal Border Guard, see para. 22, section 1a and para. 23, section 1, No. 2, 3 BGSG. Similar regulations can be found in the police law of the various Lnder.

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sence,36 since his or her presence at the train station or within a 30 kilometer range from the border is as such without danger. The new police controls purpose is the fight against cross border crimes. The defense against a diffuse criminal environment is directed toward the individual who himself cannot contribute to the defense. The individual does not hold responsibility as a single person, rather as a member of society, which exists in general at certain places or close to the federal borders. The person in question is not addressed as an individual human being to whom individual responsibility can be assigned. Rather, the person is perceived as an exchangeable member of society whose presence at certain locations is deemed potentially dangerous. The individual is neither actor nor disturber of the status quo; his responsibility derives from being part of the general public. As yet, police law did not know such competences for interference.37 The same regulatory technique of controls without prior suspicion, which possibly affects anybodys civil liberties regardless of his or her behavior, were used in the combat against crime law from October 28, 1994.38 This statute enabled the BND to observe the international radio telephone traffic without prior concrete suspicion in order to learn about the planning or implementation of certain offences in time to prevent them. This also constituted intrusions into the telephone traffic without prior suspicion. A grid search with specific search terms is intended to individualize the threat. Similar to the presence near the federal borders, the use of telephones is here seen as a potentially threatening behavior, which in principle needs to be observed. In a lengthy, new decision the German federal constitutional court did not close the door on the possibility of such controls without suspicion, but it mentioned a number of conditions that need to be fulfilled. The court placed high justification demands on the usage of the gained data, less on the gathering of the data itself. 39
36 This constitutes the difference with the so-called dangerous places, such as areas heavily frequented by drug users and dealers, at which even prior to the introduction of the new regulations police inspections were possible without individually raised suspicions. The mere presence at such locations constitute the suspicion. 37 See the critical analysis of Hans Lisken, supra note 6; Christoph Mllers, supra note 6. The constitutionality of such state laws was decided differently by Lnder Constitutional Courts. It was partially denied in Mecklenburg-Vorpommern, see LVerfG M-V, Deutsches Verwaltungsblatt 2000, 262 (with the comment by Christoph Mllers); Thringer Verwaltungsbltter 41 (2000); approved in Bavaria, see BayVerfGH, Bayerische Verwaltungsbltter 545, 560 (2003) (with the comment by Hans-Detlef Horn). 38

BGBl. I S. 3186; See also Jrgen Seifert, Die elektronische Aufklrung des Bundesnachrichtendienstes (BND), in Pflicht und Verantwortung. Festschrift fr Claus Arndt 175 (Bernd M. Kraske ed. 2002).

39 German federal constitutional court BVerfGE 100, 313 (358) (14.7.1999). On this decision, see Claus Arndt, Zum Abhrurteil des BVerfG, in NEUE JURISTISCHE WOCHENSCHRIFT 47 (2000); Bertold Huber, Post aus Pullach Das G 10-Urteil des BVerfG, in NEUE ZEITSCHRIFT FR VERWALTUNGSRECHT 393 (2000).

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This trend proceeds with enlarged competences for the Bundesgrenzschutz (Federal Border Guard BGS) .40 The area of operation for the BGS is extended in coastal areas from 30 to 50 kilometers and now also includes airplanes. Officers for the BGS are now allowed to travel as so-called Sky Marshals on board German airplanes, having the authority of controlling identification papers. Within this context is the intention41 to include biometric features (such as fingerprints and DNA information) in passports and to codify the data to such an extent that it can not be decoded by the owner of the passport. This is meant to increase the forgery proof nature of passports and to simplify the identification procedure. This proposal has been removed from the law package after parliamentary consideration and has not been passed into law yet. According to the new proposal, a further biometric characteristic besides photo and signature may be included in passports. The details for this change are left to a special federal law. Up to now the gathering of biometric data was seen as a erkennungsdienstliche Manahme (police records measure) within the context of criminal prosecution. This measure was triggered through an individual action (a suspect in a criminal trial, an important witness). An individualization, however, would have been missing in the new passport law. If every German has to be biometrically registered, then this constitutes a general suspicion against everybody. The individual (similar to the police controls) is not seen as an individual that has raised suspicions through his or her actions, but rather as part of an abstractly dangerous society. Thus, human behavior in general is considered suspicious, leaving the individual helpless to prevent this perception. 3. Grid search The same problem emerges, even more radically, in the context of amendments to the code of social law (Sozialgesetzbuch SGB X).42 The Sozialversicherungstrger (social security agencies) are required to pass all information to the security authorities, in so far as this information is necessary to perform a grid search, which is admissible either under federal or Lnder law. Again, individual persons are not selected due to their behavior; rather they have been associated with certain societal groups on the basis of gathered data.

40 41 42

Counter-terrorism law, Art. 6 BGSG. Counter-terrorism law, Art. 7 PassG; Art. 8 (passport law). Counter-terrorism law, Art. 18.

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Some legal aspects of the new grid search have already been examined by various courts.43 A general suspicion, based solely upon ones nationality or membership in specific religious communities, was held to be unconstitutional.44 In North Rhine Westphalia all residents registration offices, universities, technical schools and the central registration office for foreigners were required to pass on data on all male individuals born between the years of 1960 and 1983 to police headquarters in Dsseldorf. The court of appeal in Dsseldorf held that, in search of so-called sleepers of Islamic terror organizations, the circle of persons that has to submit to a grid search has to be definable and restricted. Only personal data of citizens of suspicious countries or of a specific religious group (e.g. Muslim persons) are allowed to be passed on, not data of German citizens, that are neither Muslim nor born in a suspicious country.45 4. Laws governing Aliens Further changes were made in the areas of Vereinsrecht (association law) and especially Auslnderrecht (alien law) and Asylverfahrensrecht (asylum law). Alien and asylum law are the areas of law that have experienced the most changes. The new rules provide enlarged identification and data exchange possibilities, new grounds to repeal residence permits and new grounds for deportation. These measures had been discussed in legal and political forums for some time; as such they cannot be seen to be a direct consequence of the September 11 attacks. However, these measures use the same idea of de-individualizing responsibilities, which has been explored more thoroughly above. Foreigners who want to travel to Germany face a general suspicion of being dangerous. Only by undergoing the security check such a suspicion can be rebutted on a case to case basis.

OVG BREMEN, NEUE ZEITSCHRIFT FR VERWALTUNGSRECHT 1530 (2002); OVG Koblenz, op. cit., 1528; VG HAMBURG, DATENSCHUTZ UND DATENSICHERHEIT 370 (2002); VG Mainz, op.cit. 303. For a critical discussion of these and further decisions, see Christoph Gusy, Ratserfahndung nach Polizeirecht?, in KRITISCHE VIERTELJAHRESSCHRIFT FR GESETZGEBUNG 474, 479-481, 488-491 (2002). Further critical accounts: Rolf Gssner, Computergesttzter Generalverdacht, 159 vorgnge 41 (2002); Hans Lisken, Zur polizeilichen Rasterfahndung, in NEUE ZEITSCHRIFT FR VERWALTUNGSRECHT 490 (2002); Wilhelm Achelphler & Holger Niehaus, Rasterfahndung als Mittel zur Verhinderung von Anschlgen islamischer Terroristen in Deutschland, in DIE FFENTLICHE VERWALTUNG 49 (2003). Positively assessed by Winfried Bausback, Rasterfahndung als Mittel der vorbeugenden Verbrechensbekmpfung, in BAYERISCHE VERWALTUNGSBLTTER 713, 7127722 (2002); Hans-Detlef Horn, Vorbeugende Rasterfahndung und informationelle Selbstbestimmung, in DIE FFENTLICHE VERWALTUNG 746, 752 (2003).
43 44

Decisions of LG Wiesbaden, Datenschutz und Datensicherheit 240 (2002); LG Berlin, op. cit., 175.

45 Decisions of OLG Dsseldorf, Neue Zeitschrift fr Verwaltungsrecht 629 (2002), with different reasoning OLG Frankfurt, op. cit., 626-627.

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E. On the development of balancing freedom and security As outlined at the beginning, September 11, 2001 was perceived as an expression of a novel dimension of terrorism i.e. as de-individualized terror of global networks. As a consequence numerous legal measures were taken, leading to the infringement of a number of civil liberties. Do these measures merely represent a quantitative increase in the number of fundamental rights violations or does this development herald a qualitative change in the relationship of freedom and security? In other words: Does the new perception of terrorism mirror a principle change in the adjustment of freedom and security? I. The de-individualization of freedom The constitutionally most delicate development is the new form of deindividualization of liability, which no longer treats the individual person as an individual but rather as an exchangeable element in a principally dangerous environment.46 The individual is no longer perceived as a principally law abiding citizen, rather as a potential threat.47 Behind this new understanding lies a change in the perception of human nature. This change is the decisive factor in the reorganization and justification of the new security competences. The modified idea of man, i.e. human beings seen as interchangeable, de-individualized elements of society, voids the constitution of its control mechanisms concerning basic rights. In this aspect one can find a manifestation of a fundamental development in the relationship between freedom and security. While the first counter-terrorism laws from the 1970s still addressed individual threats, with the result that the measures were targeted at certain circles; the connection between individualizable dangers and individually attributable measures has lessened in later years. Meanwhile, the change in perception has consolidated: The danger is no longer regarded as emanating from individual culprits, rather from a diffuse level of threat that has to be

46 For a critical assessment of a general development of de-individualisation in the legal system, especially triggered by new forms of risk regulation, see Oliver Lepsius, Risikosteuerung durch Verwaltungsrecht, in 63 VERFFENTLICHUNGEN DER VEREINIGUNG DER DEUTSCHEN STAATSRECHTSLEHRER 264, 283-290 (2004); Erhard Denninger, Vom Rechtsstaat zum Prventionsstaat?, in SICHERHEIT DURCH RECHT IN ZEITEN DER GLOBALISIERUNG 9 (Adolf-Arndt-Kreis ed., 2003); Dieter Grimm, Verfassungsrechtliche Anmerkungen zum Thema Prvention, in DIETER GRIMM, DIE ZUKUNFT DER VERFASSUNG 197, 218 (1991).

The development is characterized by ERHARD DENNINGER & FREIHEIT DURCH SICHERHEIT, KRITISCHE JUSTIZ 467, 472 (2002). Because risks prevail everywhere, dangerous circumstances become the standard. A situation without danger then remains an exceptional state under a particular burden of proof.
47

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dealt with by way of preventive measures.48 The dissociation of danger and individual acts has negative consequences for individual freedom.49 It is no longer individual civil liberties that have to be balanced against individual infringements on basic rights. Now the focus is on collective security interests, which are weighed against collective rights of the society. The weighing ratio has shifted away from the weighing of individual, subjective-legal positions to a weighing of objectivelegal perspectives. Individual rights are replaced by collective interests. Individual freedom in this constellation is no longer individually protected; its protection now merely represents a reflex of the liberty of society. The individual is part of society and shares its liberal status. Since the freedom of society is threatened, the individual has to accept possible limitations on his or her individual liberties, if they serve the purpose of securing societal freedom. The protection of freedom no longer means the protection of the individual, rather a protection of society, in which the individual can participate. His or her specific individual interests, which might not be generally recognized in society, are no longer sufficiently protected. Individual freedom has become a freedom subject to society purposes. The relationship between security and freedom has thus been fundamentally altered. But this change has not been triggered by the events of September 11, 2001, rather they are part of a continuous development that was merely catalyzed yet not caused by the latest terrorist acts. II. Affirmative duties (Duties of protection Schutzpflichten) This de-individualization or collectivization of rights and the accompanying loss of subjective-legal rights can also be seen in the constitutional justification for the statutory limitation of basic rights. As previously explained,50 the basic rights are limited by constitutionally enshrined limitation-clauses (legislation-reservationclauses) that can justify infringements upon said rights. For a violation to be justified within the terms of the limitation-clause, the infringement must serve a good that enjoys a higher legal status than the right infringed. Furthermore, the violation
How diffuse threats lead to a loss of legal standards is analyzed by WOLFGANG HOFFMANN-RIEM & FREIHEIT UND SICHERHEIT IM ANGESICHT TERRORISTISCHER ANSCHLGE, ZEITSCHRIFT FR RECHTSPOLITIK 497, (2002).
48

See Lepsius, supra note 46, 264, 293; DIETER KUGELMANN & DER POLIZEILICHE GEFAHRENBEGRIFF IN GEFAHR? DIE FFENTLICHE VERWALTUNG 781, 783 (2003); KAY WAECHTER & ZUR AKTUELLEN SITUATION DES POLIZEIRECHTS, JURISTENZEITUNG 854, 857 (2002); HANS-HEINRICH TRUTE, DIE EROSION DES KLASSISCHEN POLIZEIRECHTS DURCH DIE POLIZEILICHE INFORMATIONSVORSORGE, FESTSCHRIFT JEANDHEUR 403, 406-412 (1999); DIETER NEUMANN, VORSORGE UND VERHLTNISMIGKEIT 18-30 (1994).
49 50

supra C. II.

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of a basic right must not be disproportionate. Since the enactment of counterterrorist laws in the 1970ies a particular constitutional theoretical construction has been used in order to justify basic rights infringements, i.e. the so-called Schutzpflichten (duties of protection). In 1975 the German federal constitutional court decided in its first abortion that Art. 2 in combination with Art. 1 I 2 Basic Law declare a comprehensive duty of the state, that each human life has to be protected, especially from illegal interference by others.51 With the help of this duty to protect human life, a basic right equal to the right for freedom was created, which could be used in the judicial balancing process. Statutory limitations of basic rights could now not only be justified with colliding interests concerning freedom, but also with a constitutional duty of protection, which separated itself from individual civil liberties and weighed in on the side of the state. The state was given a duty based on basic rights to protect the legal good of life. This led to a transformation of basic rights, changing from individual rights to collective duties. Moreover, they were supplemented with so-called objective-legal functions.52 With the help of the duties of protection it was now possible to place non-individualized legally protected goods on the same level with individual civil liberties and balance them against each other. The German federal constitutional court used this justification nearly immediately to uphold the anti-terrorist Kontaktsperregesetz (prohibition of contact law) in 1978.53 The general-abstract protection against terrorist attacks could be used as justifications for individual-concrete infringements upon basic rights, in this case the procedural rights of the accused and their legal council. The duties of protection have been reinterpreted from their subjective-legal origin to an objective-legal principle.54

51

German Federal Constitutional Court, 39 BVerfGE 1.

52 See HORST DREIER, DIMENSIONEN DER GRUNDRECHTE (1993); Ernst-Wolfgang Bckenfrde, Grundrechte als Grundsatznormen, in STAAT, VERFASSUNG, DEMOCRATIE, 159 (1991); David P. Currie, Positive and Negative Constitutional Rights, 53 U. CHI. L. REV. 864, 880-882 (1986); W. Cole Durham, supra note. 20 at 45; The German approach is fundamentally more sympathetic to a conception in which the state plays a role in facilitating the actualization of freedom. Rather than being the key power that needs to be constrained if liberty is to be preserved, the state is seen as the vehicle for achieving freedom. 53

German Federal Constitutional Court 49 BVerfGE 24, at 53.

54 The development of the affirmative duties has led to a lasting scientific debate. The duties are partially accounted for by subjective legal reasoning and partially by objective legal reasoning. See Josef Isensee, Das Grundrecht als Abwehrrecht und als Staatliche Schutzpflicht, in HANDBUCH DES STAATSRECHTS, BAND V(J. Isensee & P. Kirchhof ed., 1992); GEORGE HERMES, DAS GRUNDRECHT AUF SCHUTZ VON LEBEN UND GESUNDHEIT: SCHUTZPFLICHT UND SCHUTZANSPRUCH AUS ARTIKEL 2 ABSATZ 2 GG (1987); Christoph Enders, Die Privatisierung des ffentlichen durch die grundrechtlichen Schutzpflichten und seine Rekonstruktion aus der Lehre von den Staatszwecken, in 35 DER STAAT 351 (1996); Rainer Wahl/ Ivo Appel Prvention und Vorsorge. Von der Staatsaufgabe zur rechtlichen Ausgestaltung, in Rainer Wahl (ed.) Prvention und Vorsorge 1 (1995); Peter Unruh Zur Dogmatik der grundrechtlichen Schutzpflichten, 1996.

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The development of the protection duties is of central importance for the extended justification of basic rights infringements. Individual liberties tend to be overridden by collective duties when balanced against each other. This is particularly the case when these duties are meant to serve the protection of life.. Affirmative duties lead in principle to a disequilibrium in the balancing process.55 The collective interest in being protected is not matched by a collective interest in not being interfered with ones civil liberties. Civil liberties presuppose the functioning of the legal system. They cannot be thought of in a purely negative sense but assume that laws shape and promote freedom. This is why the doctrine of duties of protection threatens to level civil liberties. As a consequence, the weighing process now contains positive and negative components of freedom in general rather than subjective rights. Duties of protection shift the balance in the weighing process from positions of individual basic rights to systematic constitutional decisions. The weighing does no longer take place between individually ascribable rights but rather between public interests. The protection duties thus not only foster a certain de-individualization, they also support a certain de-legalization of the dogma of basic rights. III. The balancing of public interests and individual rights The de-legalization and de-individualization can be exemplified with the previously mentioned ruling of the German federal constitutional court concerning the control over international non-service related telephone traffic.56 This decision represents the current perception of the way in which constitutionally guaranteed freedoms are balanced against international security interests. Thus it constitutes the current guideline for the new measures taken after September 2001. For these reasons, I will briefly discuss this judgment. There is no doubt that the new competences of the BND contained in the Verbrechenbekmpfungsgesetz (anti-crime law) of 1994 violates the secrecy of telecommunications.. According to the basic rights approach illustrated above, the infringements can be justified under Art. 10 II 2 Basic Law, as long as the anti crime law passes the proportionality test, i.e. has a purpose that serves a higher legally protected common good and is proportionate in the pursuit of said purpose. Whereas in previous years the justifying objective of a statute had to be constitutionally established in a rather time-consuming and complicated manner (via basic
55 See Peter Preu, Freiheitsgefhrdung durch die Lehre von den grundrechtlichen Schutzpflichten, in JURISTENZEITUNG 265 (1991). 56

German, Federal Constitutional Court 100 BVerfGE 313 (1999), see supra D. IV.

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rights, duties of protection or competencies), the German federal constitutional court, in its latest decision upon this matter, on July 14, 1999 simply stated without further justification that the legislative measures pursued a constitutionally anchored objective. Security seems to have become a self- evident public interest that does not need a normative, constitutionally rooted justification. Its legitimacy is presupposed and security is presented as a legitimate purpose. This decision considerably affects the relationship between freedom and security. According to this reasoning, two unequal goods face off against each other during the balancing process. On the one hand there is a subjective right, e.g, the secrecy of telephone communications, on the other hand there is an objective interest, e.g., the protection against the danger of armed attacks or international terrorism. The weighing of civil liberties no longer faces legally developed or justification requiring interests. In its judgment the German federal constitutional court put it as follows:57 In the new areas of surveillance dangers have risen because of the increase in internationally organized crime, especially in the area of illegal arms dealing and drug smuggling or money laundering. Even if these activities cannot be seen as equal to an armed attack, nevertheless, the security interests of the Federal Republic are severely affected. The dangers in the marked areas are not a distant possibility. In the area of proliferation the federal government has brought forth sufficient and well-known examples for the presence of these dangers. These dangers, which primarily originate abroad and which are to be detected with the help of the competences in question, carry great weight. The justifying purpose is supported by a factual understanding only. Apparently, the court considered a normative anchoring of the regulations unnecessary. The aspect of security has become independent as an objective fact. One can no longer speak of the weighing of two legally protected rights. The relationship between freedom and security now represents a disproportionality of normative and empirical (factual) aspects. This does not mean that security concerns could not possibly be based on some normative justification. By not even attempting to put forward normative arguments, security cannot be understood in a normative sense and thus becomes (normatively) untouchable. Security purposes are no longer subject of normative justifications based on the constitution, rather they enter into the weighing process as self evident fact; this no longer allows for the common constitutional balancing-principles to function. Facts cannot be balanced. Constitutional control in a legal sense has to transform itself into a political control, since the

57

German Federal Constitutional Court 100 BVerfGE 313 (1999), at 382.

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relevant criteria are no longer based on the supremacy of law but on factual conditions.58 F. Can security be balanced at all? As outlined above, all three developments in the balancing of security and freedom point in the same direction: the balancing process has become one-sided. Security concerns tend to override civil liberties. Legally this result is fostered by 1) the creation of de-individualized duties which do not fit into the system of individual civil liberties, 2) basic rights being enriched with an objective component, i.e. protection duties, leading to a predetermined inferiority of individual rights vis--vis collective rights, and 3) by dispensing with a normative justification for security objectives. The weighing of freedom and security tends to work in favor of the latter because individual civil liberties 1) no longer constitute a relevant legal position within the balancing process, 2) can be leveled with protection duties, and 3) find themselves in a situation of disproportionality where factual (empirical) evidence overrides normative validity. A particular problem associated with the balancing of security and freedom lies in the fact that in contrast to the quite precisely defined civil liberties, the public good of security is rather diffuse and non-determined. Thus, security does not constitute a weighable position. Security cannot be positively, but only negatively defined in the sense of defense against dangers. Therefore, the definition of said dangers, including their individual assignment, is important. In the case of international terrorism this is no longer possible. Dangers can no longer be individualized; they arise from transnational organizations and networks. If security, as has been illustrated in recent cases, is primarily considered as a collective good, security no longer represents an individualizable obligation or right of legal subjects. If, however, security does not convey subjective rights or duties, it ceases to be a Rechtsgut (legal good). Security has changed from being a legal good to a Staatsaufgabe (state purpose), which allows for basic rights infringements in a rather undefined dimension. Based on this reasoning security no longer constitutes a weighable position. To speak of balancing freedom against security is thus misleading. Security has become ambiguous in its meaning: As an empowering objective security constitutes a so-called state purpose, as a legal term it describes - in its respective definition - a legal good.

58

100 BVerfGE 313, at 360, 372.

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But this double meaning has to be strictly separated: the positive Staatsaufgabe (state purpose) of security must not be exchanged with the negative legally protected right of defense against danger. Otherwise the different levels get confused. This might either lead to security demands the state is not able to fulfill or indicate the failure of the legal system. As such it is important that in the political legal debate as well as in constitutional argumentation, security is understood as a state purpose. To declare security to be the objective of the legal system is just as plausible as to declare justice to be its goal. Just as justice is not a weighable concern in legal system, neither is security. The system of law in its entirety serves the pursuit of justice as well as security. Security and justice as ideas stand above positive law and must not be used as argumentative tools on the level of positive law. Otherwise an unbalanced situation is created, in which positive law can always be trumped by the hyper-positive idea (of e.g. security). If a legal system wants to realize the idea of security, it has to further define and outline this hyper-positive idea on a lower, more tangible, level. Security is, after all, also security in law. The dangers of such an approach, where precise definitions of security and danger are neglected in favor of a diffuse scenario of threat, risks and networks, lie in the loss of individual freedom and, more importantly, in a loss of legal rationality. This development has nothing to do with September 11, 2001. It began in the seventies, but acquired a new quality in recent years. The new quality is found in the deindividualization, which inevitably leads to a de-standardization, and thus invokes the threat of de-legislization. From this development one can conclude that the rationality of law is tied to the assignment of legal positions to the individual. If this foundation is lost, e.g. because it is placed in principle below society or under system concerns or if the foundation in principle succumbs to security interests, then we are menaced by the loss of legal standards. Constitutional law is then limited to the restating of political thinking for which it can no longer maintain safeguards. As a consequence, the protection of individual civil liberties can no longer be achieved through legal means, but only through political means.

SPECIAL ISSUE USA Patriot Act

By Viet D. Dinh*

A. Introduction On January 20, 2004, during the State of the Union address,1 President Bush called for key sections of the USA Patriot Act2 to be renewed by Congress in 2005. When the president mentioned that provisions of the Patriot Act would expire at the end of 2005, there was applause from some Democrats. Then, when he called on Congress to extend the life of the Patriot Act, Republicans clapped enthusiastically.3 The different responses illustrate how far the debate over counter-terrorism legislation has become politicized. The issue is dominated by hyperventilating rhetoric and political gamesmanship. The feverish chorus of discontents criticizing the Patriot Act and other responses to the continuing terrorism threat has reached a crescendo, which is both unfortunate and unhelpful. What we need now is for the United States to engage in a constructive conversation about the success of our terrorism prevention efforts. We need to discuss what governmental powers are necessary to make us safe, and what safeguards against misuse of those powers are essential to keep us free. The national debate will be constructive if we can lower the heat and turn up the light.
*

Professor of Law Georgetown University Law Center; Deputy Director, Asian Law & Policy Studies Program; A.B., J.D., Harvard.

1 President George W. Bush, State of the Union Address (Jan. 20, 2004) available at http://www. whitehouse.gov/news/releases/2004/01/20040120-7.html (last viewed Feb. 9, 2004). 2 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272, available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid =f:publ056.107.pdf (PDF File) and http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107 _cong_public_laws&docid=f:publ056.107 (Text File) (last viewed Feb. 9, 2004). 3 President Bush said: Key provisions of the Patriot Act are set to expire next year. (Applause.) The terrorist threat will not expire on that schedule. (Applause.) Our law enforcement needs this vital legislation to protect our citizens. You need to renew the Patriot Act. (Applause.) President George W. Bush, State of the Union Address (Jan. 20, 2004) available at http://www.whitehouse.gov/news/releases/ 2004/01/20040120-7.html (last viewed Feb. 9, 2004).

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The fundamental question facing Americans today is not the false trade-off between security and liberty,4 but rather how we can use security to protect liberty. Any debate over security and liberty must start with the recognition that the primary threat to Americas freedom comes from al-Qaeda and others who seek to kill Americans, not from the men and women of law enforcement who protect us from danger. That the American homeland has not suffered another terrorist attack since September 11, 2001, is a testament to the remarkable efforts of law enforcement, intelligence, and homeland security personnel. Their sheer hard work, dedication and increased coordination have been greatly aided by the tools, resources and guidance that Congress provided in the USA Patriot Act. Our counterterrorism measures have not just been defensive, we have taken the offensive. According the Department of Justice, the US government has disrupted over 100 terrorist cells and incapacitated over 3,000 al-Qaeda operatives worldwide. The U.S. Department of Justice has indicted on criminal charges 284 persons linked to 9/11, of whom 149 have pled guilty or been convicted. U.S. immigration officials have deported 515 foreigners of interest to the 9/11 investigation for immigration violations. In addition, the US government has initiated 70 investigations into terrorism financing, freezing $133 million in terrorist assets, and has obtained 23 convictions or guilty pleas.5 Counter terrorism since 9/11 has not just been about law enforcement but also law enhancement. Many of the successes of the police and FBI would not have been possible without the important work of the Congress in passing the Patriot Act. The Department of Justice wrote to the House of Representatives Judiciary Committee on May 13, 2003, that the governments success in preventing another catastrophic attack on the American homeland would have been much more difficult, if not impossibly so, without the USA Patriot Act. The Patriot Act, of course, owes its existence to the near unanimous vote of Congress after careful work by its Judiciary Committees.6

4 Assistant Attorney General Viet D. Dinh, Ordered Liberty in the Age of International Terrorism, Harold Leventhal Talk (June 7, 2002), available at http://www.usdoj.gov/olp/leventhaltalk.pdf (last viewed Feb. 9, 2004). 5

Figures are available at http://lifeandliberty.gov/subs/a_terr.htm (last viewed Feb. 9, 2004).

6 The House of Representatives passed the Patriot Act on October 24, 2001, by a vote of 357 to 66, with 9 members not voting. 147 CONG. REC. H7224 (daily ed. Oct. 24, 2001) (roll call vote 398). The Senate followed suit shortly thereafter, passing the act on October 25, 2001, by a vote of 98 to 1, with 1 senator not voting. 147 CONG. REC. S11,059-60 (daily ed. Oct. 25, 2001) (roll call vote 313).

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B. The Debate Over the Patriot Act What is odd about the current clamor over the Patriot Act is that this legislation resulted from considerable informed debate. Contrary to popular myth, the Patriot Act was not rushed onto the statute books. During the six weeks of deliberations that led to the passage of the Act, the drafters heard from and heeded the advice of a coalition of concerned voices urging caution and care in crafting the blueprint for Americas security. That discussion was productive, and the Patriot Act benefited from these expressions of concern. More recently, however, the quality of the debate has deteriorated. The shouting voices are ignoring questions that are critical to both security and liberty. Lost among the understandable fears about what the government could be doing are questions about what the government actually is doing. There is insufficient consideration of additional measures that the government could take to protect security and simultaneously safeguard liberty. Overheated rhetoric over minor legal alterations has overshadowed profoundly important questions about fundamental changes in law and policy. The debate over Section 215 of the Patriot Act, the so-called library records provision, illustrates how awry the direction of the debate has gone. Critics have railed against the provision as allowing a return to J. Edgar Hoovers monitoring of private citizens reading habits. The American Civil Liberties Union (ACLU) has sued the government, claiming that the provision, through its mere existence, foments a chilling fear among Muslim organizations and activists. Others, more fancifully, have claimed that Section 215 allows the government to act as Big Brother, snooping on innocent citizens in a manner reminiscent of George Orwells 1984. These fears are real and sincere, but they are also historically and legally unfounded. Not only does the Patriot Act end the anomaly that allows such records to be routinely seen by investigators in cases not involving terrorism, the legislation actually provides more protections than is usually the case when records are subject to subpoena. For some years Grand Juries have issued subpoenas to businesses to hand over records relevant to criminal inquiries. Section 215 of the Patriot Act gives courts the same power to issue similar orders to businesses, from chemical makers to explosives dealers, for national security investigations. Section 215 is not aimed at bookstores or libraries. Like its criminal grand jury equivalent, Section 215 orders are written with business records in mind but could, if necessary, be applied to reading materials acquired by a terrorist suspect. Contrary to what the critics claim, Section 215 is narrow in scope. The FBI cannot use it to investigate garden-variety crimes, nor even domestic terrorism. Instead,

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Section 215 can be used only to obtain foreign intelligence information not concerning a United States person, or to protect against international terrorism or clandestine intelligence activities. The records of everyday Americans, and even not-so-everyday criminals, are simply beyond the reach of Section 215. The fact that Section 215 applies uniquely to national security investigations means that the orders are confidential. Such secrecy raises legitimate concernsworries that Congress anticipated by embedding significant checks into the process of issuing a Section 215 warrant. First, a federal judge alone can issue and supervise a Section 215 order. By contrast, Grand Jury subpoenas for records are routinely issued by the court clerk. Second, the government has to report to Congress every six months as to the number of times and the manner in which the provision has been used. On October 17, 2002, the House Judiciary Committee issued a press release stating that its review of that information has not given rise to any concern that the authority is being misused or abused.7 Moreover, in September 2003, the Attorney General made public the previously classified information that Section 215 has not been used once since its passage.8 It may well be that the clamor over section 215 reflects a different concern, closely related to the cherished American tradition of free speech. Some seem to fear that government investigators can use ordinary criminal investigative tools to easily obtain records from purveyors of First Amendment activities, such as libraries and bookstores. Again the fundamental concern is as understandable as the specific fear related to Section 215 is unjustified. The prohibition in Section 215 that investigations not be conducted of a United States person solely upon the basis of activities protected by the first amendment of the Constitution of the United States addresses this problem directly and makes the Patriot Act more protective of civil liberties than ordinary criminal procedure. Arguably this limitation should be extended to other investigative tools. The Attorney Generals guidelines governing criminal and terrorist investigations already require that: such investigations not be based solely on activities protected by the First Amendment or on the lawful exercise of any other rights secured by the Con-

Press Release, U.S. House of Representatives, Committee on the Judiciary, Sensenbrenner Statement and Release of Justice Departments Answers to USA-PATRIOT Act Oversight Questions (Oct. 17, 2002), available at http://www.house.gov/judiciary/news101702.htm (last viewed Feb. 9, 2004).

8 E.g., Dan Eggen, Patriot Monitoring Claims Dismissed; Government Has Not Tracked Bookstore or Library Activity, Ashcroft Says, WASH. POST at A2 (Sept. 19, 2003).

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stitution or laws of the United States.9 Congress might wish to consider whether to codify this requirement in law, but that is an entirely different debate to the alleged erosion of liberty by Section 215 and the utility of this highly restricted power. A good example of how the Patriot Act incorporates key protections is Section 213, which deals with notices for search warrants. During the debate over the Patriot Act, the House of Representatives took the alarming decision to approve the Otter amendment,10 an appropriations rider that would have prohibited investigators from asking a court to delay notice to a suspect of a search warrant.11 Had the Otter amendment provision become law, it would have been a momentous error that would have crippled federal investigations. The amendment would have taken away an investigative tool that had existed before the Patriot Act, a tool that over the years has saved lives and preserved evidence. Inherent in a federal judges power to issue a search warrant is the authority to supervise the terms of its use. Judges can delay any notice of the execution of a search warrant for the obvious reason that some criminals, if notified early, will destroy evidence, kill witnesses or simply flee. This judicial authority is so firmly established that the Supreme Court in 1979 labeled as frivolous an argument that notice of a search warrant had to be immediate.12 Even the generally permissive Ninth Federal Circuit Court of Appeals, whose judges are seen to be liberal in their decisions, has consistently recognized that notice of a warrant may be delayed for a reasonable period of time. The problem has been that while a judges right to delay the execution of a warrant is acknowledged, different judges have exercised their discretion to delay notice in very different ways. As a result, there is a mix of inconsistent rules and practices across the US. The Congress solved this problem in Section 213 of the USA Patriot Act by adopting a uniform standard. Under Section 213, a judge can delay notice for a reasonable period upon being shown a reasonable cause by investigators that immediate notification might have an adverse result such as endangering the life or physical safety of an individual, flight from prosecution, evidence tampering,
THE ATTORNEY GENERALS GUIDELINES ON GENERAL CRIMES, RACKETEERING ENTERPRISE AND DOMESTIC SECURITY/TERRORISM INVESTIGATIONS 7 (2002), available at http://www.usdoj.gov/olp/generalcrimes2.pdf (last viewed Feb. 9, 2004).
9 10

See 149 CONG. REC. H7299 (daily ed. July 22, 2003) (roll call vote 408).

11 149 CONG. REC. H7289 (daily ed. July 22, 2003). Specifically, the amendment provided: None of the funds made available in this act may be used to seek a delay under Section 3103a(b) of title 18 United States Code. Id. 12

Dalia v. United States, 441 U.S. 238, 247 (1979).

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witness intimidation, seriously jeopardizing an investigation, or unduly delaying a trial (awkward). While the Patriot Act finally sets a uniform standard for delaying warrants, thereby evening out the highly individual decisions of the judiciary, it continues to make these delays subject to judicial approval. Furthermore, the act demands that approval only be granted in specified situations. The uniform reasonable cause standard is similar to the Supreme Courts reasonableness test for deciding the circumstances surrounding the service of a warrant. For example, the Supreme Court in December 2003 unanimously approved as reasonable police entry into a drug house 15 seconds after announcing their presence.13 Again, the criticism that the Patriot Act extends government powers is shown to be inconsistent with the facts of legal practice. The reasonable cause standard in the act, that the government show good reason to delay notice of a warrant, is arguably more restrictive than the prevailing standard that existed before the Patriot Act, when such delays were granted entirely at judicial discretion. One of the most serious criticisms after 9/11 was that US intelligence agencies failed to pool their knowledge and cooperate with each other to prevent the attacks. The Patriot Act addressed this issue while being sensitive to concerns about the capabilities which these agencies have for monitoring the population. Section 218 of the Patriot Act amended the Foreign Intelligence Surveillance Act (FISA)14 to facilitate increased cooperation between agents gathering intelligence about foreign threats and investigators prosecuting foreign terroristsliaison which had been barred by administrative and judicial interpretations of FISA. Even the most strident of opponents of the Patriot Act would not want another terrorist attack to occur because a 30-year-old provision prevented the law enforcement and intelligence communities from talking to each other about potential terrorist threats. Section 218, essential as it is, raises important questions about the nature of law enforcement and domestic intelligence. The drafters of the Patriot Act grappled with questions such as whether the change is consistent with the Fourth Amendment protection against unreasonable search and seizure, whether criminal prosecutors should initiate and direct intelligence operations and whether there is adequate process for defendants to seek exclusion of intelligence evidence from trial. In the end it was decided that Section 218 is compatible with the Fourth Amendment
13 14

United States v. Banks, 124 S. Ct. 521 (2003).

Foreign Intelligence Surveillance Act (FISA) of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codified as amended at 50 U.S.C. 1801 et seq. (2004)), available at http://www4.law.cornell.edu/uscode/50 /ch36.html (last viewed Feb. 9, 2004).

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and that defendants do have sufficient recourse to exclude evidence gathered by intelligence agencies from their trials. Although the drafters were confident that they had struck the correct balance, they recognized that lawyers are fallible and that the courts will ultimately decide. C. Conclusion The Patriot Act is far from being the executive grab for power and extension of government that many portray it as. Rather the act sensibly tidies up what judicial prerogative has too often confused, standardizes powers while restraining them and at the same time gives the government the tools it needs to fight terrorism while observing the cherished liberties of Americans. The Patriot Act is not written in stone. It will need to be amended and it will be debated by the courts. Already there has been a successful challenge in a federal court to Section 805, which bars the provision of expert advice to terrorist organizations.15 The intention of Section 805 is sound, but its execution in this case may not have been. In many ways our nation is navigating uncharted waters. We have been forced to fight an unprovoked conflict, war declared against us by nihilistic terrorists, not by the traditional adversary, a nation-state. During these times, when the foundation of liberty is under attack, it is critical that we both reaffirm the ideals of our constitutional democracy and also discern the techniques necessary to secure those ideals against the threat of terrorism. As Karl Llewellyn, the renowned law professor, once observed: Ideals without technique are a mess. But technique without ideals is a menace.16 The Patriot Act, by combining ideals and technique is the domestic shield for American democracy, a protection deserving of renewal by our Congress.

15 Humanitarian Law Project v. Ashcroft, 2004 U.S. Dist. LEXIS 926 (C.D. Cal. Jan. 22, 2004), available at http://news.findlaw.com/cnn/docs/terrorism/hlpash12304ord.pdf (last viewed Feb. 9, 2004). 16

Karl Llewellyn, On What Is Wrong With So-Called Legal Education, 35 COLUM. L. REV. 651, 662 (1935).

SPECIAL ISSUE Liberty Dies by Inches: German Counter-Terrorism Measures and Human Rights
By Verena Zller*

I believe there is no trade-off to be made between human rights and terrorism. Upholding human rights is not at odds with battling terrorism: on the contrary, the moral vision of human rights the deep respect for the dignity of each person is among our most powerful weapons against it.1 A. Human Rights After September 11 On February 5, 2004 Abdelghani Mzoudi walked free from court in Hamburg, Germany. The Moroccan engineering student had been suspected of aiding and abetting the planning of the heinous terrorist attacks on the World Trade Center and the Pentagon of September 11, 2001 and of being a member of a terrorist organization. Even though the court expressed discomfort with its judgement, not being entirely convinced of Mzoudis innocence, it acquitted him due to the lack of sufficiently compelling evidence.2 The main problem was that the crucial testimony of an alleged co-plotter, Ramzi Binalshib, had been withheld by the United States. Subsequently, Bundesgerichtshof (Germanys highest court of appeal) basically on the same grounds ordered a retrial for Mounir el-Mossadaq, who had been the first person to be convicted in relation to the 9/11 attacks. He had been sentenced to 15 years of prison for accessory to murder on more than 3,000 counts.3

LLM candidate in International Human Rights Law at the University of Essex, UK; M.A. in Political Science (Ludwig-Maximilans-Universitt, Mnchen). The basis for this essay was a research paper for the LLM in International Human Rights Law at the University of Essex, United Kingdom. I thank Prof. Franoise Hampson for her very valuable advice and Ruth Seitz for her support.
* 1 UN Secretary-General Kofi Annan, Statement to conference Fighting Terrorism for Humanity: A Conference on the Roots of Evil, 22 Sept. 2003. 2

German court clears student of plotting with 9/11 terrorists, THE GUARDIAN, 6 Feb. 2004.

3 First and only 9/11 conviction overturned by German court, THE GUARDIAN, 5 Mar. 2004;: Retrial ordered in terror case, FRANKFURTER ALLGEMEINE ZEITUNG WEEKLY, 5 Mar. 2004.

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While the rulings are deplorable if Mzoudi and el-Mossadaq in fact are guilty and certainly there should be no doubt that persons involved in terrorist acts must be brought to justice, there is a positive note on the case from a human rights perspective: In spite of the gravity of the accusations and strong political pressure the court upheld rules of due process and the fundamentally important presumption of innocence. In the tensioned climate since 9/11 this attitude is not self-evident. In response to the tragic events, many States felt a need to re-evaluate their security and introduced legislative measures putting them in a stronger position to combat terrorism. While some of these measures certainly may be necessary and proportionate, others give raise to severe human rights concerns. As the UN Secretary General stated, human rights are in danger of becoming collateral damage in the so-called war on terrorism.4 In evaluating counter-terrorism measures with reference to human rights, the focus of academic writing and NGOs has mainly been on the United States, where some violations of international and human rights law are most obvious, as exemplified by the Guantanamo detention camp. But little work has been done to revisit legislative and operational measures in other countries. Soon after 9/11 Germany came into the spotlight, as it became known that the attacks had at least partly been planned and prepared in Hamburg.5 Concern was raised about the country being a safe haven for terrorists and possible sleepers hiding behind an unsuspicious faade. In this climate the Government rushed through counter-terrorism legislation. On November 9, 2001, Parliament adopted the so-called Security Package I, containing urgent measures addressing the perceived security threat. Terrorismusbekmpfungsgesetz (Security Package II) promptly followed suit in December 2001. The new legislation basically amends a number of existing laws, mainly regarding the powers of the security authorities. Furthermore, changes concern the Strafgesetzbuch (Criminal Code), the Asylgesetz (Asylum Act) and the Auslndergesetz (Foreigners Act). The focus of this law is on prevention rather than on repression; it is supposed to ensure that terrorist activities are detected early on and that Germany does not provide a safe haven for foreigners involved in terrorist activities.6 As in other countries around the globe, legislative and operational measures raised concern about their compatibility with national and international human rights
4 UN Secretary-General Kofi Annan, Statement to the 20 January Security Council ministerial meeting on terrorism. 5 6

BUNDESAMT FR VERFASSUNGSSCHUTZ, Verfassungsschutz gegen Auslnderextremismus 7 (Dec. 2003).

Markus Rau, Country Report Germany, Max Planck Society, Conference on Terrorism as a Challenge for National and International Law, 24 Jan. 2003, available at http://edoc.mpil.de/conference-onterrorism/imdex.cfm, p. 7f.

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obligations. Many feel that the new, security-driven laws compromise longstanding civil and political rights and freedoms. The necessity and desirability of bringing persons to justice who are involved in terrorist acts remains unquestioned. Nevertheless, counter-terrorism measures must be under strict scrutiny regarding their conformity with international human rights standards. This essay shall evaluate measures introduced in Germany, mainly under Security Packages I & II. As they amended a variety of existing legislation, not all facets can be covered. Thus, some of the most important aspects shall be analysed with regards to the respective affected groups of persons: all persons living in Germany, foreigners living in Germany and asylum seekers. Efforts against the financing of terrorism, although important, will not be covered as they form a whole sphere on their own. Moreover, it is not within the scope of the essay to take all relevant human rights instruments into consideration. Therefore, preference shall be given to the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR) and the 1951 Refugee Convention. Before turning to this evaluation, some general thoughts on the concepts of liberty and security are necessary to establish the context of counter-terrorism measures in democratic societies. Secondly, an overview over Germanys international obligations in combating terrorism and protecting its citizens shall be given. Thirdly, problems arising from the vague use of the term terrorism will be looked at. Finally, some of the new measures shall be analysed with respect to Germanys international human rights obligations. B. Liberty and Security in a Democratic Society Any debate on counter-terrorism measures must be seen in the light of the correlation of liberty and security. Although these are often said to be antagonistic, the modern democratic State embraces both: while ensuring as much security to its citizens as deemed necessary, it grants as much liberty as possible. Both elements are crucial in democratic systems, as security cannot be ensured without civil liberty. This view is reflected in many human rights instruments, which protect liberty and security of the person in one single paragraph.7 An interference with one of them will always affect the other. Hence, the State must ensure a prudent balance of the two.8 In the tradition of post-enlightenment philosophy and French and American Revolutions, liberal democracies strongly emphasised liberty. Hobbesinian
7 8

EUR. CT. HR art. 5; INTL COVENANT ON CIV POL. RTS. art. 9.

Erhard Denninger, Zur rechtsstaatlichen Problematik des Terrorismusbekmpfungsgesetzes, DEUTSCHES INSTITUT FR MENSCHENRECHTE, at www.institut-fuer-menschenrechte.de/seiten/doku8.htm.

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thinking of the guarantee of security as the States foremost duty has been overcome by the conviction that a good order must allow citizens to develop their lives and ideas as free as possible. When Rousseau said, man is born free, and everywhere he is in chains, he did not advocate a lawless state of nature, but a political system built on the free will of its citizens. The concept of the States exclusive right to resort to force to ensure security and the rule of law illustrated in Hobbes Leviathan has been upheld in European constitutional history. But it must be controlled be its people; and it must not interfere with their right to freedom and personal development as long as these dont threaten the order of the state or violate the rights of others. German philosophers Kant and Hegel both placed individual liberty at the heart of the State.9 This idea of everyones free development within the democratic State is reflected in art. 2(1) of the Grundgesetz (German Basic Law): Everyone has the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or against morality. The Federal Republic of Germany, as it emerged out of the Third Reich dictatorship, was conscious about the importance to control state power and guarantee personal freedom. Fundamental civil rights and liberties, such as the right to privacy and the rights to freedom of expression, association and assembly are core elements of freedom and conditio sine qua non for the healthy functioning of democracy. Throughout the terrorist threat posed by violent left-wing groups during the seventies and eighties, most prominently the Red Army Faction (RAF), this conviction was not severely compromised. The logic of RAF terrorist action was to force the State to make intensive use of its powers in order to ensure the rule of law and suppress terrorist opposition, thereby debunking itself as illiberal and loosing legitimacy.10 This logic eventually did not gain momentum. While some civil rights were restricted by the widely protested against Notstandsgesetzgebung (emergency law), three so-called anti-terrorism acts11 and the Kontaksperrengesetz12 (contact ban
9 DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 38 (Durham and London 1989). 10 Berthold Meyer, Im Spannungsfeld von Sicherheit und Freiheit. Staatliche Reaktionen auf den Terrorismus, 1 HSKF STANDPUNKTE, PEACE RESEARCH INSTITUTE FRANKFURT, No. 1/2002 at 2. 11 Gesetz zur Ergnzung des Ersten Gesetzes zur Reform des Strafrechts, 20 Dec. 1974; Gesetz zur nderung des Strafgesetzbuches der Strafprozessordnung, des Gerichtsverfassungsgesetzes, der Bundesrechtsanwaltsordnung und des Strafvollzugsgesetzes, 18 Aug. 1976; Gesetz zur nderung der Strafprozessordnung, 14. Mar. 1978. 12 Gesetz zur nderung des Einfhrungsgesetzes zum Gerichtsverfassungsgesetz, 30. Sep. 1977. This law until today is controversial but was upheld by the Bundesverfassungsgericht. JOHN E. FINN, CONSTITUTIONS IN CRISIS: POLITICAL VIOLENCE AND THE RULE OF LAW, 215 (Oxford 1991).

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law) allowing for solitary confinement, overall the primacy of civil rights persisted. The impossibility to guarantee absolute security within the democratic order was accepted. Nevertheless, during this period Germany laid the legal foundations for combating terrorist action.13 This sense of proportionality seems to have faded away during the 1990s. In 1998, the Government introduced a law on widely extended eavesdropping in private homes with the purpose of combating organized crime and terrorism the latter explanation being particularly interesting, because at the time Germany did not face any particular terrorist threat. This law is so far-reaching that it led to the resignation of the Minister of Justice, who subsequently challenged it before courts.14 After a long judicial fight, only recently the Supreme Court declared the law in wide parts unconstitutional.15 This example shows that already in the 1990s an increasing emphasis was placed on security probably in response to the loss of stability in the international order and the spread of organized crime from the former Soviet countries. Still, this development is surprising in the light of the young history of public surveillance through the STASI in the Democratic Republic of Germany. After the heinous attacks of September 11, the fragile balance between liberty and security was tipped even more towards the latter. The new counter-terrorism legislation is clearly security-driven. While in many respects it builds upon the legislation introduced in the 1970s, the official justifications do not refer back to the history of terrorism in Germany but only to a new dimension of international terrorism.16 However, it remained unclear what characterized this new dimension all the more because European societies have had to live and actually managed with terrorist activities for a long time. The mere scale of the 9/11 attacks can hardly serve as a satisfactory explanation. Rather, as Lepsius points out, the perception derives from the fact that this time it was not identifiable individuals but a globally operating obscure network who was responsible for the attacks. 17 This perceived new quality of a threat to security seemed to justify a new quality of measures with a focus on preventive action. But the equation that a restriction of
13 Oliver Lepsius, Freiheit, Sicherheit und Terror. Die Rechtslage in Deutschland, LEVIATHAN, Mar. 2004, 1/2004, at 64-88. 14

Lepsius, Court overturns much of eavesdropping law, FRANKFURTER ALLGEMEINE ZEITUNG WEEKLY, 5. Mar. 2004. BverfGE, 1 BvR 2378/98, 03 Mar. 2004. Terrorismusbekmpfungsgesetz, Begrndung, Erster Teil. Lepsius, supra note 14, 66ff.

15 16 17

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civil liberties will provide for a higher level of security is highly problematic. As was submitted, during the 1980s in German public law the concept of a basic right to security equal to the other constitutional civil rights and liberties emerged.18 This concept entails two problems: First, as Lepsius showed, contrary to the constitutional basic rights, security is not defined on a normative level. It can only be defined on a factual basis, that is in connection with specific threats and thereby specific criminal activities which is difficult when operating with categories of diffuse networks instead of individual perpetrators. Thus, the factual character of security cant be balanced against the normative character of the basic rights, as it should be done within the German constitutional system. But security seems to have become a value as such that prevails over other basic rights.19 Secondly, even the factual level of security is questionable: It basically is defined negatively through the absence of a specific threat. But as the threat remains obscure as long as it does not translate into activities, it is mainly a question of perception. The assumption that the State can guarantee absolute positive security, i.e. no criminal or terrorist actions actually occur, is a pure fiction not only in open societies but also in autocratic States, as the bombings in Saudi Arabia and Morocco showed. While certainly a high level of security is desirable, societies have to accept that they have to live with a certain extent of threat and danger. Moreover, this conception of security is rather one-dimensional, focused on threats to life and limb. It neglects the dimension of security of individuals within the legal system, i.e. from arbitrary actions of the State, which is on the utmost important foundations of the democratic State. If this dimension of legal certainty is neglected, citizens loose both freedom and security. Critics complained that there was no sufficient time for parliamentary and public debate and that the Government used the opportunity to adopt legislation, which had already been planned before 9/11 September but had lacked politic support.20 This opportunity is rooted in the inherent logic of terrorist attacks: the indefinite risk of further attacks forces governments to react primarily to prevent more attacks, but also to appear strong and active in a situation of crisis. The security of its citizens momentarily becomes the utmost function of the State, while the citizens are more willing to accept restrictions of their liberty. This situation may not be problematic as long as the measures taken are proportionate to the security threat. Proportionality may include a strict focus on the legitimate aim of the measures the prevention of further attacks and a temporary factor, i.e. it may be necessary
18 19

Id. at 65. Id. at 86ff.

20 Cordelia Koch, Freiheitsbeschrnkung in Raten? Biometrische Merkmale und das Terrorismusbekmpfungsgesetz, HSFK-REPORT, PEACE RESEARCH INSTITUTE FRANKFURT, 5/2002 at 2 ; Meyer supra note 10, 8.

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to revisit the measures when the perceived security threat has lowered. Otherwise, there may be a clash with fundamental human rights norms. And if societies allow human rights to be impaired in the name of the fight against terrorism, they threaten exactly what they claim to fight for: the democratic order on the basis of the freedom of its citizens. C. International Obligations to Combat Terrorism and Related Human Rights Obligations When analysing the compatibility of counter-terrorism measures with human rights it is important to bear in mind that Germany has not only obligations under human rights instruments which may collude with anti-terrorism legislation. Also, it undertook a variety of international obligations to combat terrorism. Among the most important are: Eleven out of twelve UN Conventions covering several specific terrorist offences; the 1977 European Convention on the Suppression of Terrorism and the 1957 European Convention on Extradition; several Security Council resolutions, most prominently resolution 1373 of 28.09.2001; the EU Council Framework Decision on Combating Terrorism of 19.09.2001 and the Council Framework Decision on an European Arrest Warrant of 07.08.2002; numerous bilateral agreements related to terrorism.21 Furthermore, it is important to mention Germanys obligations under human rights treaties to protect citizens from terrorist acts, e.g. bombings or hostage taking. Especially relevant are the right to life under art. 6 ICCPR and art. 2 ECHR, the right to liberty and security of the person (art 5 ECHR, art. 9 ICCPR) as well as the protection from torture and inhuman and degrading treatment (art. 3 ECHR, art. 7 ICCPR). Also, the protection of property under art. 1 of the first Protocol to the European Convention is of some importance. These provisions not only put the State under a negative obligation not to arbitrarily interfere with those rights, but also under a positive duty to protect its citizens from interference of third parties.22 Thus, Germany has an obligation under international human rights law to secure

21

A full list of relevant bilateral and multilateral treaties is contained in Germanys first report to the Counter Terrorism Commission (CTC) of 02 Jan. 2002, S/2002/11, Appendix.

22 Delgado v Paez, Report of the Human Rights Committee, Communication No. 195/1985, U.N. GAOR, 45th Sess., Supp. No. 40, Vol. II, at 43, U.N. Doc. A/45/40 (1990).; Kili v. Turkey, 33 Eur. H.R. Rep. 58, 62 (2000).

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life, liberty and property of the people within its territory as well as to protect them from ill-treatment.23 These obligations have to be borne in mind in order to avoid rash judgements on counter-terrorism legislation. In this context, it shall be sufficient to observe that the Counter Terrorism Committee (CTC), established by the Security Council after 9/11, did not criticise Germany of not satisfactorily fulfilling any core obligations. Germany reported to the CTC fist in December 2001 and pursuant in October 2002 and June 2003.24 The additional information requested by the Committee related to quite detailed questions, indicating that there are no major deficiencies. Therefore it shall be assumed that no crucial additional measures are necessary. D. Lack of Clarity in the Legal Concept Of Terrorism I. International level: no agreed definition of terrorism The major problem surrounding the issue of terrorism on the international level is the failure to agree on a definition of the term.25 The central disagreements arise from key questions such as the actors involved, the precise nature of the acts, and the issue of State terrorism.26 With the increasing international tensions after the events of 11 September a solution to the problem is even less likely to be found. Moreover, the term is increasingly used within simplistic and polarized rhetoric making certain groups of people, such as minorities, migrants and prisoners, even more vulnerable to marginalisation of their human rights.27 Some scholars expressed doubt about the legal significance of terrorism, but in fact it is used as a

For a comprehensive compilation of case law on Human Rights and terrorism see UN HIGH COMM. H.R.: Digest of the UN and of Regional Organizations on the Protection of Human Rights While Countering Terrorism, July 2003.
23 24 First, Second and Third German Reports to the Counter Terrorism Commission (CTC), S/2002/11, S/2002/1193, and S/2003/671.

SUB-COMMISSION ON THE PROMOTION AND PROTECTION OF HUMAN RIGHTS: TERRORISM AND HUMAN RIGHTS, Progress Report, prepared by Kalliopi K. Koufa, Special Rapporteur, 27 Jun. 2001, E/CN.4/Sub.2/2001/31, 25.
25 26 Id. at 25ff.; INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY, Human Rights after September 11, Versoix 2002, 11ff. 27 Id, at 3. The same concern was raised by Kofi Annan, UN Secretary-General Kofi Annan, Statement of the Secretary-General to the 58th Commission on Human Rights, 12 Mar. 2002.

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legal concept on the domestic and international level and thus, the need of a definition can hardly be called into question.28 II. Domestic level: terrorist offences in the Criminal Code This lack of an internationally agreed upon definition is mirrored on the national level. Neither the 1970s acts nor the new legislation provide for a clear definition of the term.29 The most relevant provision is article 129a of the German Criminal Code, introduced in 1976. It penalizes the formation of terrorist organizations as well the support of or recruitment for it. 1. Terrorist organizations Article 129a specifies the notion of terrorist organizations through listing a number of crimes as their objectives or activities, inter alia murder, manslaughter and kidnapping/hostage taking, causing of explosion and interference in public operations. Not all these crimes are typically considered to be terrorist offences in terms of a certain scale:30 Terrorist offences should reach a certain degree of severity because they justify extraordinary investigational measures and harsh punishment. More restrictive concepts of terrorism only include the use of serious violence against persons. Thus, the notion of terrorist organisations is very broad in comparison to the national definitions of other States.31 As regards the formal question what constitutes an organization terrorist or of other nature jurisprudence has clarified that it should have at least three members and should be intended to exist over a certain duration of time. Moreover, the fact that the individual members subordinate their wills under the common objective of the organization is critical.32 2. Objective Element Also, the objective elements of the criminalized acts are problematic. Article 129a criminalizes the formation of a terrorist organization as well as being a ringleader
28 Christian Walter, Defining Terrorism in National and International Law, Max Planck Society, Conference on Terrorism as a Challenge for National and International Law, 24 Jan. 2003 at http://edoc.mpil.de/conference-on-terrorism/imdex.cfm, p. 2. 29 30 31

Supra note 5, at 12. Id.

Supra note 24, at 5. Nevertheless, some recent concepts are similarly broad, such as the United Kingdom Terrorism Act and the Canadian Bill. BGH 1992, 518.

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or supporting or recruiting for it. Especially critical is the notion of support as it may entail a wide range of actions (or their omission) but is not further specified in the criminal code.33 Basically, it may manifest itself in financial, practical/logistical or written and oral support. Thus, the courts are left with the interpretation and jurisprudence provided for some degree of clarification. Accordingly, financial and logistical support largely come within the scope of the provision. Less clarity exists with regard to support through words, but it may be considered that many respective acts, such as solidarity manifestations or printing documentaries with statements of terrorist organizations are protected as freedom of expression under art. 5 Grundgesetz.34 Nevertheless, a coherent clarification would be strongly desirable. It should be added that under article 138 Criminal Code there exists a duty to inform if a person has knowledge the planning or execution of certain specified crimes, including the crimes under article 129a. 3. Subjective Element Furthermore, article 129a does not set out any subjective requirement, i.e. terrorist intention. Most national definitions entail an intention to create a climate of terror and fear within the population and the advancement of political, religious or other ideological goals.35 The silence on any subjective element obscures the distinction to the offence of forming a criminal organization.36 This is critical because of the more extensive investigation powers, such as solitary confinement and widespread phone tapping,37 as well as more severe punishment coming along with 129a. The newly introduced article 129b extends the provisions of 129a to terrorist organisations abroad but does not add to its clarity. The annual reports of the Federal Office for the Protection of the Constitution describe terrorism as the persistent struggle for political goals, which are to be attained with the help of attacks against the physical integrity, life, and property of other persons, in particular through serious criminal offences as defined in article 129a para. 1 of the Criminal Code, or through other offences, which serve as prepa33

Reinhard Marx, Terrorismusbekmpfungsgesetz, UN HIGH COMM. ON REFUGEES, Berliner Symposium 21f (2002).

34 Heinz-Jrgen Schneider, Der neue Paragraf 129b, 30 Nov. 2001, at http://www.cilip.de/terror/schneider.htm. 35

Supra note 24, at 6f. With respect to the latter, the Eur. Ct. H.R. case Jersild v Denmark, 19 Eur. Ct. H.R. 1 (1995), is relevant. Art.129 Criminal Code. Criminal Procedure Code art.100a, 100c, 103, 111, 112; Contact Ban Law art.31.

36 37

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ration for such crimes.38 While this definition is more comprehensive, including the subjective element, it certainly has no legal status and is thus not applicable in criminal proceedings. III. Requirement of clarity of law in international human rights law From the perspective of human rights law this vagueness poses a problem because international norms require domestic law to be precise and foreseeable. This principle should be upheld even more so in the case of a provision of criminal law, which entails severe punishment, grants the State wide investigating powers and requires a low threshold of suspicion. The importance of certainty of national law was pointed out by the European Court. It uses the question whether the law is precise and foreseeable as part of the test whether an interference of the State was prescribed by law in relation to the claw back clauses in articles 8-11. In the Sunday Times case, the Court stated: [A] norm cannot be regarded as law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able if needed with appropriate advice to foresee to a degree that is reasonable in the circumstances, the consequences which a given action may entail.39 The Court upheld this approach in a number of cases. Furthermore, the requirement of clarity in criminal legislation follows from the prohibition of retrospective legislation under art. 7 of the Convention.40 According to Kokkinakis v Greece, an individual must know from the wording of the relevant provision what acts and omissions will make him liable.41 Nevertheless, the Court accepted that criminal law cannot be absolutely precise in order to avoid excessive rigidity and to keep pace with changing circumstances. Moreover, it recognized the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resulting development is consistent with the essence of the offence and could reasonably be foreseen.42 Thus, while establishing a general rule

38 39 40

Supra note 5, at 12f. Sunday Times v United Kingdom, 2 Eur. Ct. H.R. 245 (1979).

CLARE OVEY & ROBIN C.A. WHITE, JAKOBS & WHITE: THE EUROPEAN CONVENTION ON HUMAN RIGHTS, 191f (Oxford 2002). Kokkinakis v Greece, 260 Eur. Ct. H.R. (Ser. A) at 52 (1993). CR v United Kingdom, Eur. Ct. H.R. (Ser. A) at 34 (2 Nov. 1995).

41 42

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of precision and foreseeability, the Court gives States considerable leeway and accepts a certain degree of vagueness. The Human Rights Committee (HRC) addressed the question of clarity of law in relation to State interference with the art. 17 protection of privacy. In General Comment 16 the Committee stated: [R]elevant legislation must specify in detail the precise circumstances in which such interferences may be permitted.43 Several States were asked to adopt more precise legislation regulating these matters.44 The question if article 129a would withstand scrutiny of the European Court or the Human Rights Committee is rather speculative. Given the wide margin of appreciation States are granted in questions of national security, these bodies might find sufficient clarity in the provision. Nevertheless, as German jurisprudence only clarifies the matter to a certain degree, more precision would be strongly desirable especially for the element of support and with regards to an inclusion of an element of intention, in order to strengthen the distinction to criminal organizations. This appears even more important in the light of new article 129b, which extends the criminal act to organizations abroad, as the new provision may mainly have implications for non-nationals who are less familiar with the German legal system. The same holds true for certain newly introduced provisions of the Associations Act, the Aliens Act and the Asylum Procedure Act, which exclusively apply to foreigners and are interpreted in the light of article 129a. E. Counter-Terrorism Measures The principal international body monitoring the measures taken by all States is the Counter Terrorism Committee (CTC) established by Security Council resolution 1373. The Committees mandate is to monitor the implementation of resolution 1373 and to increase the capability of States to fight terrorism.45 All States are obliged to report to the CTC. Germany first did so in December 2001 and, judging from the follow-up questions of the Committee, the report was carefully analysed.46 However, the scrutiny of the CTC only extends to whether it regards the measures taken sufficient and appropriate to combat terrorism. It does not consider their
43 44

U.N. HRC, General Comment 16 8 (1988).

JOSEPH, SARAH ET AL., THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: CASES, MATERIALS, AND COMMENTARY 353 (New York 2000).
45 46

S/RES/1373 6 (2001). Supra note 20.

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conformity with human rights law. Thus, the reports provide an overview of the measures in place but are silent about their compatibility with human rights standards. As can be seen from the Germanys report, counter-terrorism measures are wideranging. Security Packages I and II amended 19 different statutes and six statutory orders. In the following some of the most important measures shall be reviewed regarding their accordance with Germanys human rights obligations. The selection was made with a view to cover all different groups of affected persons. Also included are the eavesdropping law and grid search, both introduced before 9/11, firstly because of their importance and secondly to illustrate a certain continuity. I. Measures potentially affecting all persons present in Germany 1. The right to privacy: surveillance and data protection in human rights instruments The most wide-ranging measures in that they potentially affect all persons on German territory mainly concern issues of surveillance and therefore pose a problem with the right to privacy as guaranteed in art. 17 ICCPR and art. 8 ECHR. International jurisprudence left no doubt that measures of surveillance and data collection/processing fall within the scope of the right to privacy. Art. 8 of the European Convention guarantees the right to respect for private and family life, home and correspondence. Paragraph 2 sets out the circumstances when an interference by the State with these rights is legitimate. European case law on surveillance and data protection is extensive. The leading case Klass v Germany 47 concerned a 1960s law on surveillance of mail and telecommunications. The Court pointed out that the restriction of free communication constituted a direct interference with art. 8.48 Also in terms of data collection the Court repeatedly affirmed the applicability of art 8, stating that the storing of information relating to a persons private life as well as the release of such information falls within the scope of the right to privacy.49 Moreover, in Niemitz v Germany the Court pointed out that the private life includes the ability to establish relationships with others, 50 and in Hal47 48 49

Klass and others v Germany, 06 Sep 1978. Id.

Heike Krieger, Limitations on Privacy, Freedom of Press, Opinion and Assembly as a Means of Fighting Terrorism, Max Planck Society, Conference on Terrorism as a Challenge for National and International Law, 24 Jan. 2003, at http://edoc.mpil.de/conference-on-terrorism/imdex.cfm, p. 3; Leander v Sweden, 116 Eur. Ct. H.R. (Ser. A) at 48 (1987); Rotaru v Romania, Eur. Ct. H.R. at 43, (4 May 2000). Niemitz v Germany, 251-B Eur. Ct. H.R. (Ser. A) at 29 (1992).

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ford v UK it concluded that professional and business activities may fall within the notion of private life.51 Thus, the right to privacy under the European Convention protects citizens from arbitrary gathering, storage and release of personal data. However, as art. 8 is no absolute right this cannot mean that the State is prohibited from performing such activities at all. In Klass the necessity of some degree of surveillance was explicitly accepted: Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order to effectively counter such threats, to undertake secret surveillance of subversive elements operating within its jurisdiction.52 Thus, the State enjoys a certain but not unlimited discretion, subject to art. 8(2): The measures have to be prescribed by law, have a legitimate aim, such as national security, be necessary in a democratic society and strictly proportionate. As laid out in Klass, a crucial factor for proportionality are sufficient safeguards to ensure that the measures are not carried out in an excessive or arbitrary manner. The ICCPR protects from arbitrary or unlawful interference with privacy, family, home or correspondence. Unlike the ECHR, the Covenant does not contain a claw back clause. But still art. 17 is no absolute right there may be interference as long as it is not arbitrary or unlawful. Case law provides for an inclusion of data protection.53 As the European Court, the HRC includes the ability of individuals to develop relationships with others.54 The issue of surveillance measures is addressed in General Comment 16, para 8: Surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations should be prohibited. Despite this strict language, the concluding comments to various State reports make it clear that surveillance measures are permissible when strictly controlled and overseen by independent, preferably judicial, bodies.55

51 52 53 54 55

Halford v United Kingdom, Eur. Ct. H.R. at 42-46 (25 Jun. 1997). Supra note 43, at 48. Supra note 40, at 370. Coeriel and Aurik v Netherlands, 10 Feb. 1994.

Supra note 40, at 263f; Concluding Comments on Poland, UN doc. CCPR/C/79/Add. 110 (1999); Concluding Comments on Zimbabwe, UN doc. CCPR/C/79/Add. 89 (1998); Concluding Comments on Lesotho, UN doc. CCPR/C/79/Add. 106, 24 (1999).

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The Comment also elaborates on the necessity of data protection guarantees.56 It clarifies that the competent public authorities should only be able to call for such information relating to an individual's private life the knowledge of which is essential in the interests of society.57 The Committee demands some safeguards, e.g., personal data must not get into the hands of persons not authorised by law and individuals must have the possibility to inquire about stored information and to rectify incorrect data. However, these seem to be less far-reaching than under the European Convention. For example, they dont address the manner of information gathering or the issue of non-excessive use.58 Thus, while the HRC addressed the issue with greater clarity through a General Comment, one may argue that the actual protection is less far-reaching than under the ECHR. Nevertheless, it must be ascertained that both treaties provide for clear protection against unlawful or arbitrary surveillance as well as personal data collection and use. 2. Eavesdropping and phone-tapping Telecommunications surveillance for investigational purposes and crime prevention is not a recent phenomenon but plays a major role in combating terrorism. In Europe, today only Italy, the Netherlands and Switzerland make more use of phone interception than Germany. Recent records show a considerable increase by 80% between 1996 and 2001.59 The biggest leap by 75% in 1996 is hard to explain. A ministerial statement,60 linking it to the increased use of mobile phones is questionable, as the big rise in mobile phone users occurred only from 1999 on.61 In the Klass case, the European Court found that German legislation did not violate art. 8 of the Convention and showed itself largely satisfied with the safeguards in place.62 Inter alia, surveillance is only permissible if the establishment of the facts by any other method is without prospects of success or considerably more diffi56 57 58

Supra note 39, at 10. Id. at 7.

Lee Bygrave, Data Protection Pursuant to the Right to Privacy in Human Rights Treaties, 6 Intl J.L. & Info. Tech. 247, 247 (1998).

59 Konferenz der Datenschutzbeauftragten September 2003, Konsequenzen aus der Untersuchung des MPI ber berwachung der Telekommunikation, at http//www.datenschutz-berlin.de. 60 61

Zypries, Telefonberwachung wirksam und mavoll, at www.beck.de .

MAX-PLANCK-INSTITUTE, Rechtswirklichkeit und Effizienz der berwachung der Telekommunikation nach den 100a, 100b StPO und anderer verdeckter Ermittlungsmanahmen 54 (2003). Supra note 43, at 50-60.

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cult.63 The application for a surveillance order must be in written form and give reasons for their necessity and measures must be reported to a parliamentary supervisory body. After discontinuation the intercepted person is to be notified unless notification would impair the long-term goals of surveillance. Thus, after cessation legal remedy becomes available.64 However, as a recent report by the Max-Planck-Institute revealed, these safeguards are not satisfactorily respected.65 First of all, the unexplained increase in phonetapping since mid-1990s suggests that the measure is being used excessively, i.e. not as last resort. The fact that only 25% of all cases lead to an investigational success calls proportionality into question. 66,5% of convicted persons were sentenced to less than five years of detention, indicating that the measure often relates to less serious crimes, mostly drug-related. Moreover, 73% of persons subjected to phonetapping were not notified after discontinuation and thus had no access to legal remedy.66 While the reasons for this lax practice are not entirely clear, there is a strong suggestion that it may be due to a lack of resources.67 Hence, while the law as such is accordance with human rights standards, its implementation is to be criticized. Largely, the safeguards set out by the European Court and the HRC are not sufficiently respected. In conclusion, the compatibility of surveillance practice in Germany with the right to privacy and with regards to notification the right to al legal remedy as guaranteed by art. 13 ECHR and art. 2(3a) ICCPR is highly questionable. If the same holds true for the above-mentioned 1998 Groer Lauschangriff68 (eavesdropping law) has to be awaited until a similar report becomes available in summer 2004. However, the findings may not be of major relevance anymore: The law was in large parts declared unconstitutional in March 2004.69 It had amended art. 13 Grundgesetz (inviolability of the home) and the Criminal Procedure Act, allowing for acoustic surveillance of private homes in cases of explicitly listed grave
63 64 65 66 67

Id, 17. Id, 18-25. Supra note 57. Supra note 55. Supra note 57, at 310.

68 Gesetz zur nderung des Grundgesetzes, 26 Mar. 1998; Gesetz zur Verbesserung der Bekmpfung der organisierten Kriminalitt, 4 May 1998.

BverfG, 1BvR 2378/98, 3 Mar. 2004. Also, Court overturns much of eavesdropping law, FRANKFURTER ALLGEMEINE ZEITUNG WEEKLY, 5 Mar. 2004.
69

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crimes.70 It provided for similar safeguards as mail and telecommunications surveillance. The Constitutional Court did not challenge the amendment of art. 13 Grundgesetz, as it does not interfere with human dignity (Art. 1) and the basic principles of the State order (art. 20).71 However, it found parts the implementation as laid down in the Criminal Procedure Act disproportionate with a view to the guarantees of human dignity and the inviolability of the home, i.e. eavesdropping must be conducted in such a way not endangering the protection of human dignity. Hence, it is not allowed when the suspect is around persons of his confidence, such as close friends, family, lawyers, doctors and clergy, and when the rights of third parties would be violated. Respective evidence may not be used before the courts.72 Moreover, the Court declared the list of crimes as too extensive, as more than twenty offences do not entail a sentence of at least five years of detention and thus do not reach the threshold of severity.73 Finally, it regarded the regulations regarding notification as insufficient.74 Although the law must be rectified until June 2005, it is safe to say that German surveillance practice at least since the mid-1990s was in violation with the internationally guaranteed right to privacy. 3. Extension of powers of the security authorities While the above-described surveillance partly could be analysed in relation to the actual practice, this is not the case for the newly introduced measures as there is no data available yet. Thus, the view on the legislation as such must suffice. In respect of the right to privacy, one of the most important features of the second Security Package is the extension of the powers of the two intelligence services, namely the Bundesverfassungsschutz (Office for the Protection of the Constitution) and the Bundesnachrichtendienst (Federal Intelligence Service). Before 2001 the Office for the Protection of the Constitution could gather and evaluate information on endeavours directed against the free democratic order, national security, an impairment of the administration as well as activities of an intelligence nature and activities which, by the use of force, endanger the external interests of Germany.75 Security Package II extended this list to include endeavours that are directed against the idea of international understanding (art. 9(2) Grundgesetz), especially against the
70 71 72 73 74 75

Art.13(3)-(6) Grundgesetz and art.100-101 Criminal Procedure Act (Annex). BverfG, 1BvR 2378/98, 103-124. Id. 167-197. Id. 227-241. Id. 228-307. Federal Constitution Protection Act 3.

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peaceful co-existence of people (art.26(1) Grundgesetz).76 While based in the Constitution, these principles are relatively vague for legitimating intelligence action. However, the actual measures allowed for are even more concerning. Both intelligence services are given the authority to request information about individuals suspected to engage in the above-mentioned activities from various financial service institutions, postal service providers, telecommunications services and aviation companies.77 Moreover, the possibilities of data exchange between all major institutions involved in crime prevention and investigation have been extended, i.e. apart from the intelligence services mainly the Bundeskriminalamt (Federal Office of Criminal Investigation) and the Bundesgrenzschutz (Federal Border Guard). Again, the question is if these amendments are compatible with data protection under privacy rights. Basically, the same safeguards as for other surveillance measures apply. Nevertheless, the law greatly extends the list of institutions private information can be requested from, and thereby the type of information that may be gathered. Furthermore, the grounds for request do not seem to be sufficiently precise. In the Malone case, the European Court has reiterated the need for clarity in legislation in relation to surveillance measures.78 Thus, while there are safeguards in place, the new powers may amount to a violation of privacy rights because of their mere scope. Moreover, the enhancement of data exchange obscures the separation between intelligence and police, rooted in the historical experiences from the Third Reich and the GDR.79 Also, this exchange may endanger the principle that collected data may only be used for the purpose it was collected for this requirement may be difficult to control when data come from a variety of sources. Thus, strict scrutiny must be maintained supervising the application of the new measures. On a positive note, the provisions contain a sunset clause, requiring them to be reviewed after five years.80

76 77 78 79

Counter-Terrorism Act art.1(1). Counter-Terrorism Act, articles 1(3) and 3. Malone v UK, 02 Aug. 1984, 79.

Till Mller-Heidelberg, Das Terrorismusbekmpfungsgesetz. Ein Erfolg der Terroristen, ZEITSCHRIFT FR BRGERRECHTE UND GESELLSCHAFTSPOLITIK, No. 21 (2002).
80

INTERNATIONAL HELSINKI FEDERATION FOR HUMAN RIGHTS, Anti-terrorism Measures, Security and Human Rights. Developments in Europe, Central Asia and North America in the Aftermath of September 11 196 (April 2003).

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II. Measures affecting foreigners living in Germany In the aftermath of September 11 many NGOs reported on increasing xenophobia in Germany, especially against Muslims or persons with an Arab appearance. Complaints ranged from vandalism and bomb threats against mosques, to verbal abuse, discrimination and violent attacks. While German politicians condemned intolerance and hostility towards Muslims, critics made counter-terrorism measures partly responsible for creating prejudice.81 Indeed, a great part targets foreigners, either wishing to enter or living in Germany. Regarding the latter, there are problems with various human rights: again, the right to privacy, but also freedom of religion and the prohibition of discrimination. In the following, two measures shall be evaluated: the so-called grid search and the ban of extremist religious foreigners associations. 1. Rasterfahndung (Grid search) Rasterfahndung is a method of systematic screening of personal data which initially was used rather unsuccessfully to search members of the RAF. It was taken up again after it became known that three of the 9/11 terrorists had been living in Germany. Practically, the data of individuals are systematically compared and screened for certain criteria presumed to be characteristics of criminals. The purpose is to identify sleepers of Islamist terror organizations. While basically the criteria are not publicly known, they seem to include affiliation with Islam, male, between 18 and 40 years old and university studies in natural science and technical subjects. As a result, allegedly thousands of Muslims have had their data screened and many subsequently had their houses searched, sometimes in the middle of the night, have been arrested and interrogated. Some individuals reported on police brutality.82 Supposedly only within the first four months in Hamburg data of more than 30.000 male students had been screened and 140 persons were interrogated at police stations.83 Relatively new is the use for preventive purposes, i.e. independent of a concrete suspicion of persons having committed a crime.84 Universities, health and social insurance agencies, employers and other institutions were asked to provide information on individuals, which clearly poses a problem to data protection and the right to privacy as it requires no degree of suspicion in relation to a concrete offence but just a very abstract danger and involves no safeguards. Raster81 82 83 84

Id. at 117f. Supra note 76, at 118. Kleine Anfrage der PDS zur Rasterfahndung, 18 Feb. 2002 Bundestagsdrucksache 14/8257. Supra note 5, at 33.

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fahndung puts a considerable number of persons under a general suspicion, denying the fundamental presumption of innocence as laid out in and art. 14(2) of the ICCPR. Thus, the inference with the right to privacy can hardly be called proportionate85 - even more so in the light of the poor investigational success rate. Furthermore, it gives rise to an issue of discrimination under art. 14 ECHR and articles 2(1) and 26 ICCPR on the basis of race or national origin and religion. The protection from discrimination under the European Convention is the weakest one: Article 14 is not considered a freestanding right, i.e. it can only be violated in conjunction with another Convention right in this case privacy. According to such reasoning, not only the right to privacy was violated, but also it was done so in a discriminatory way. The affected persons were singled out, inter alia, on the grounds of race or national origin and religion. The Court often has been reluctant to address article 14 even if it had found a violation of another provision. However, in recent years it seems to have taken the question of discrimination somewhat more serious if it is considered to be a fundamental aspect of the case.86 The protection against discrimination in art. 26 ICCPR thus is much stronger, as the Covenant considers it a right on its own. The protection under art 2(1) is limited to the rights set forth in the Covenant. Hence, just as for the ECHR, it has to be seen in connection with the right to privacy. However, as the Committee pointed out, not all distinction on one of the grounds constitutes discrimination. If the differentiation is based on objective and reasonable criteria it is not prohibited.87 Nevertheless, it is questionable if the distinction for the purpose of Rasterfahndung, mainly on the basis of personal characteristics of a few persons who committed terrorist crimes, can be justified. The practice of Rasterfahndung has widely been criticised on all these grounds on the national level, but apart from the highest court in the Federal State Hessen judiciary upheld it. It has not come under review of the Constitutional Court. 2. Ban of extremist religious associations One of the first measures in September 2001 within Security Package I was the abolition of the so-called religious privilege, under which religious or ideological associations were not subject to the Vereinsgesetz (Act Governing Private Associations) and thus could not be prohibited accordingly. Hence, now religious associaId. at 35. Chassangnou and others v France, Eur. Ct. H.R. at 89 (29 Mar. 1999). Supra note 40, at 523.

85 86 87

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tions may be banned in accordance with art. 9(2) Grundgesetz under art. 3(1) of the law when their endeavours are directed against the Criminal Code, the constitutional order or against the idea of international understanding. Associations of foreigners, i.e. when the majority of members or executive members are nonnationals (excluding EU nationals), additionally may be prohibited on grounds listed in art. 14(2). These include activities directed against peaceful co-existence of Germans and foreigners or foreigners among each other, or against Germanys obligations under international law, incitement to violence or support of organisations abroad which plan or support attacks against persons or property. The aim of this more restrictive approach towards foreigners associations is the prevention of extremist activities. It has to be emphasised that the abolition of the religious privilege applies not only to foreigners associations, but certainly these are subjected to more extensive prohibition grounds. Among scholars it had been debated if the abolition violated freedom of thought, conscience and religion, on the international level protected under art. 9 ECHR and art. 18 ICCPR. But religious associations are not prohibited as such; they are just subjected to the same rules as other private associations.88 While it may be argued that religious groups need somewhat greater protection than is guaranteed under freedom of associations, it is hard to see why they should be able to engage in activities related to the prohibitions grounds of articles 3 and 14(2). The activities indicated there are by no means necessary for the exercise of religious freedom. Thus, the question would rather be if there were an issue of discrimination in that more prohibition grounds apply to foreigners associations and thus their right to freedom of association is more restricted. There appears to be an underlying assumption that foreigners associations are more likely to engage in organized crime and terrorism,89 as such are the justifications for art. 14(2). Freedom of association is one of the core principles in a democratic society.90 It helps to guarantee the healthy functioning of democracy and is especially important for groups which dont constitute a majority. However, in art. 16 the European Convention limits freedom of association under art. 11: It grants State Parties the right to restrict political activities of aliens. It is not very clear why the limitations laid out in art. 11(2) should not be sufficient to control political activities by non-nationals and accordingly, the Court has never considered the provision. As early as 1977 the Parliamentary Assembly has recommended its removal.91 Hence, while art. 16 certainly cant be ig88 89

Supra note 5, at. 18f. Supra note 76, at 74.

90 As for example reiterated by the European Court, see United Communist Party v Turkey, 62 Eur. Ct. H.R. 1 at 44 (1998). 91

Supra note 36, at 216.

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nored, it does not have a very strong standing and runs counter developments in international law.92 Accordingly, the ICCPR does not know such a restriction of political activities of foreigners. Freedom of association under art. 22 as all rights equally applies to nationals and non-nationals subject to the restrictions set forth in para 2.93 Thus, the distinction regarding prohibition grounds under German law on the basis of nationality, while justifiable under the ECHR, is clearly questionable in terms of universal human rights standards and may well be called discriminatory. In practice, since the abolition of the religious privilege the Ministry of Interior prohibited several Muslim associations: the Turkish Islamic group Kalifstaat (Caliphate State) along with 19 connected associations. The objective of the Kalifstaat was said to be the overthrow of the Turkish secular State and its replacement by a system based on the Sharia. The ban was confirmed by the Federal Administrative Court on the ground that the group contravened the principles of democracy, the rule of law and human dignity.94 The leader of Kalifstaat, Metin Caplan, was sentenced to four years imprisonment because of incitement to murder. Furthermore, the association Al-Aqsa was prohibited because of financial support of Hamas and Hizb utThahir al-Islami (Islamic Liberation Party) was banned for propagating violence and anti-Semitism.95 On the basis of the facts, these bans appear to be justified and by no means disproportionate. All these organizations fall within the scope of art. 3 of the Associations Act. III. Measures affecting asylum seekers The concern about foreigners engaging in terrorist activities is also illustrated by the numerous changes in aliens and asylum law through Security Package II. The amendments are to ensure that data about foreigners who wish to enter are available to all relevant institutions, including the Federal Criminal Office and that potential terrorists are not granted stay permit or can be expelled. These measures involve some critical aspects, especially the extension of expulsion grounds and the restriction of the right to non-refoulement.

92 E.g., U.N. GAOR, Declaration of Human Rights of Individuals who are not Nationals of the Country in which They Live, A/RES/40/144 (1985); IHF 2003, at 74f. 93 94 95

U.N. HRC, General Comment 15. Supra note 5, at 19. Annual Report of the Office for the Protection of the Constitution 2002, at 148, 165, 168f.

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1. Extension of expulsion grounds According to Security Package II, persons now can be expelled when they threaten the democratic order or national security, pursue political aims by violent means or publicly incite violence, are member of an organisation which supports international terrorism or support such an organisation, make false or incomplete statements regarding their contacts to persons or organisations who are suspected of supporting international terrorism.96 It can be argued that these new grounds fall within the scope of art. 32 of the 1951 Refugee Convention, allowing for expulsion on grounds of national security and public order. Accordingly, the provision was not criticised as such. The basic problem arises out of the vague language of the new text.97 As elaborated above, the term terrorism lacks precise definition in German law and so does the concept of support. Thus, the competent authorities are left with the decision which organisations can be called terrorist. But this decision is especially critical for asylumseekers, as they are frequently engaged in opposition movements against repressive governments. The issue leads back to the bonmot one persons terrorist is another persons freedom fighter: It often is a question of digression where legitimate opposition ends and terrorism begins, especially in cases of internal conflict.98 Furthermore, information about alleged terrorist activity will often come from the country of origin. This results in a conflict of interest between the asylum seeker and his home country and may put him at risk in case of return.99 2. Restriction of non-refoulement Under art. 33 of the 1951 Convention refugees are guaranteed not to be sent back to territories where their life would be threatened. Thus, even if a refugee falls under the art. 32 grounds of expulsion, the State is not allowed to send him or her to an unsafe country (including third countries). However, the protection is not absolute: it does not apply where there are reasonable grounds to believe the person to be a threat to national security or when he has been convicted for a particularly serious crime (art. 33(2)). Art. 51 of the German Aliens Act reflects this provision. Moreover, Germany is bound by the prohibition to sent someone back when he is in
96 97 98

Aliens Act art.47(2); Counter-terrorism Law art.11(8). U.N. HCR, Stellungnahme zur Anhrung des Terrorismusbekmpfungsgesetzes, 30 Nov. 2001. Supra note 29, at 19-23.

99 INTERNATIONAL HELSINKI FEDERATION, Statements at the OSCE Human Dimension Implementation Meeting, 9, at 44, 19 Sep. 2002.

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danger to be tortured under the art. 3 jurisprudence of the ECHR and art. 3 of the Convention against Torture (CAT). The leading case of the European Convention is Soering, who could not be extradited to the United States because there he faced death row.100 The principle was re-affirmed in several other cases.101 In Chahal, the Court indicated that national security had no application in art. 3 cases as the prohibition of torture is an absolute, non-derogable right. Hence, the prohibition of norefoulement under the ECHR is even stronger than under the 1951 Convention. A prominent example of non-refoulement is the case of Kalifstaat leader Kaplan: An extradition request by Turkey so far has been refused, as Turkey has not guaranteed that Kaplan will not face the death penalty. Nevertheless, Security Package II restricted non-refoulement by inserting the exclusion grounds of art. 1(F) 1951 Convention into art. 51 of the Aliens Act. This runs counter the system of the Refugee Convention, as both articles apply to different groups of people: the art.33(2) exception from non-refoulement concerns persons already recognized as refugees, while art. 1(F) applies to persons who are in the process of having their refugee claim considered. Thus, German law obscures the distinction between these groups, which is of high importance for a fair asylum procedure. The principle of inclusion before exclusion,102 providing that before a person is excluded from refugee status his well-founded fear of prosecution under art. 1(A) must be considered, may not be respected.103 The inclusion of art. 1(F) in the grounds for expulsion extends this category because it uses the exclusion grounds without the context of art. 1(A). Thus, it may be possible to deport an asylum seeker before first assessing his claim for refugee status.104 Moreover, both articles require different standards of proof. Thus, by integrating both articles in one provision, the higher standard of art. 33 may be applied to art. 1(F). This leads to an unfair procedure not in line with the Convention. However, even if a refugee qualifies for expulsion under art. 51 of the Aliens Act, he still should be protected from refoulement under the ECHR and CAT.

100

Soering v UK, 11 Eur. Ct. H.R. 439 (1989).

101 Chahal v UK, 23 Eur. Ct. H.R. 412 (1996); Ahmed v Austria, 24 Eur. Ct. H.R. 278 (1996), Jabari v Turkey, Eur. Ct. H.R. (11 July 2000).

ERIKA FELLER, ET AL. ED., REFUGEE PROTECTION IN INTERNATIONAL LAW: U.N. HCR GLOBAL CONSULTATIONS ON INTERNATIONAL PROTECTION, Summary Conclusions: The Principle of non-refoulement 178 (Cambridge 2003).
102 103 104

Supra note 76, at 170f. Supra note 93.

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In conclusion, German refugee law much criticised for not respecting international standards for a long time was made even more restrictive through counterterrorism legislation. It remains to be noted that much of the law governing aliens and refugees will be changed with the new Immigration Act, currently discussed between government and opposition in the Federal Council. Presumably a good deal of the envisaged improvements for refugees will not survive these negotiations even more so as now they take place under the shadow of the recent terrorist attacks in Madrid. F. Conclusion Since the introduction of the emergency law in 1967 Germany has had a long history of countering terrorist threats, from inside and outside the country. The two Security Packages of 2001 built on a considerable body of legislation. After leftwing terrorism had faded by the late 1980s, the mid-1990s witnessed a new wave in security driven State activity. Hence, the measures after 9/11 were not an isolated reaction to the attacks in the United States, which seem to have been more the trigger than the actual reason. This is in any event true for measures which were taken up again, as the Rasterfahndung, and the provisions of Security Package I, which was put together rather speedily. The rush in which legislation was pushed through did not allow for thorough discussion and fortifies the assumption that 9/11 provided the opportunity to get things approved which previously had lacked political support. In contrast to measures already in place, the focus of the Security Packages is rather on prevention than on repression. As exemplified by the analysed measures, the main concerns for human rights are: (1) The vagueness of many provisions, which opens the door to broad interpretations and leaves individuals in uncertainty of which conduct is actually prohibited. This imprecision poses a problem mainly wherever a definition of terrorism, terrorist organisation or support of the latter is involved, but also where powers of security authorities are extended through the broad language of constitutional principles. The legislator should consider clarifying the respective provisions. (2) Interferences with the right to privacy, which used to enjoy an unprecedented strong protection under German law due to the history of the Third Reich and the GDR. The awareness of the fundamental importance of privacy rights seems to be fading away. As exemplified by the practice of the eavesdropping law, scrutiny must be given to the law as such and its actual implementation. (3) The measures disproportionately aim at foreigners, who are restricted in their civil rights and freedoms and their rights as refugees. This gives not only rise to

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concern about discrimination, but also fosters a climate of xenophobia. By further undermining the principles of the 1951 Convention, the rights of a group needing special protection are endangered. On a positive note, despite increasing islamophobia in the Western world, freedom of religion has not been considerably restricted, although the ongoing debate about female teachers wearing the Islamic headscarf should be noted. However, this debate has not the dimension it currently takes in France. Another positive aspect is that an independent judiciary reviews legislation and does not give in to political pressure, as shown in the Hamburg trials and the refusal to extradite Metin Kaplan. But it also has to be noted that Germany not only introduced far-reaching national legislation, but also pushes for additional measures within the European Union for good or for worse. For example, the introduction of Rasterfahndung on the European level was suggested. Furthermore, Germany advocated the European Arrest Warrant. After the tragic bombings in Madrid one week ago, the Minister of Interior was one of the first calling for an emergency meeting to discuss further measures. In conclusion, while surely not all measures pose problems with respect to human rights obligations, there is an ongoing effort to introduce security driven legislation, on the national and European level without thoroughly considering human rights implications. As in many countries, human rights seem to be regarded as hampering the fight against terrorism which is not only a misperception but also a serious mistake in the strategy against terrorism.

SPECIAL ISSUE Data Screening as a Means of Preventing Islamist Terrorist Attacks on Germany
By Wilhelm Achelphler and Dr. Holger Niehaus

After the terrorist attacks on the World Trade Center in New York City, it was determined that some of the presumed perpetrators had lived in Germany where they had been studying technical subjects in particular. Public authorities supposed more potential assassins (so-called sleepers) were staying in Germany until they received an order to start their mission. In order to discover such persons, data screening1 was carried out in each federal state of Germany. In the course of it, all universities were obliged to hand over the data material concerning their enrolled students for data alignment by police authorities. Up until now, appeals of affected students against those measures have been successful in Hessen, NordrheinWestfalen and Berlin. Those events give reason for a critical reflection of the means of data screening by the police. A. The Concept of Data Screening As data screening the ascertaining of information by aligning is described; these information result from two different amounts of data at least.2 By such an alignment, an intersection of information is found (substrate or, sediment) which either already meets the aim of the investigations or allows it to continue with conventional methods.3 The strategy of investigation is either aimed at achieving wanted information (positive data screening) or selecting insignificant informa-

Wilhelm Achelphler is a partner of a law firm in Mnster (Achelpoehler@meisterernst.de). Holger Niehaus works as an assistant lecturer at the University of Mnster (Institute for Criminal Law; niehauh@uni-muenster.de).

1 Rasterfahndung; a rastrum (lat.) is a rake, by which disordered things can be sorted or separated. Welp, Zur Legalisierung der Rasterfahndung, in RECHT DER PERSNLICHKEIT 389 (Berlin 1996). 2 NIEHAUS, KATALOGTATENSYSTEME ALS BESCHRNKUNGEN STRAFPROZESSUALER EINGRIFFSBEFUGNISSE 145 (Berlin 2001). 3

Welp, supra note l, at 389; Wittig, JuS 1997, 961, 968; Niehaus, supra note 2, at 145-6.

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tion (negative data screening).4 Because of the use of electronic data processing this kind of clearing up crime has achieved unknown effectiveness. At the same time, the available quantity of information is increasing unstoppably as we morph into an information society.5 Regarding the development of cashless exchanges of money, for instance, one can state that today every single user of EC cards or credit cards leaves a trail of data behind for investigating officers. For example, it could be discovered which persons bought the same type of knife recently used by a murderer. Even originally irrelevant data gains unexpected significance due to the possibilities of automatic data processing and its capacity of handling and connecting items.6 If one knows, for example, that a member of a terrorist organisation acting in Germany sent a blackmailing letter from Gare du Nord in Paris, and if one additionally knows that the members of that terrorist organisation prefer paying their electricity bills in cash, the separately considered insignificant data about who travelled to Paris by train lately and who paid his electricity bill in cash achieve, a so far, unimagined importance. Aligning those two pieces of data, an intersection of persons can be found to which both the search criteria apply. Concerning the remaining number of persons investigations can be continued with usual Observation methods. Conclusively, data screening serves to select a manageable number of persons with characteristic features from an inestimable variety of information by data alignment.7

B. Data Screening and Basic Rights I. The right to data privacy The development of information technologies poses new kinds of threats to personal rights. A citizen, when he considers which public authority knows with whom, what, when and where he acts is already hampered by that uncertainty concerning his freedom of action.8 People who are unsure whether divergent be4

Welp, supra note 1, at 389.

5 Welp, supra note, at 389-90; SOKOL, POLIZEI UND DATENSCHUTZ, 188, 196 (in Bumler, ed. Neuwied 1999); Niehaus, supra note 2, at 146. 6 7 8

BVerfG 65, 1 (45). Welp, supra note 1, at 389-90. BVerfG 65, 1 (43); BVerfG 27, 1 (6).

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haviour is noted and is durably stored, used and passed on, will try not to attract attention by such behaviour.9 Therefore, the Federal Constitutional Court deduces the right to self-determination about personal data from the general personal rights (Art. 2 (1) in conjunction with Art. 1 (1) GG). The right to self-determination about personal data means that one can decide, on principle, anything concerning the divulgence, the use, and the passing on of ones personal data.10 Regarding the level of intrusion, the Federal Constitutional Court does not differ any more between the especially delicate data of the personal sphere of life (e. g. medical data about existent illnesses) and the less delicate data of its social sphere (e. g. matriculation at a university). Due to the possibilities of modern data processing, even separately considered insignificant data can gain real importance in other connections because of the new ways of connecting and processing information. In this respect there is no insignificant data left in times of automatic data proc11 Therefore, any poll, storage or passing on of personal data, even the fact essing. that the state simply takes note of them, means an intrusion into the right to data privacy.12 II. The intrusion degree of data screening The importance of an intrusion into the basic rights of a citizen by the police or in criminal proceedings, on the one hand, can result from the intensity of the infringement of freedom, on the other hand, from its secret enforcement, but as well from the circumstance that numerous uninvolved persons are referred to (spread of intrusion).13 Related to these criteria, data screening means a serious intrusion into the right to data privacy.14 Data screening not necessarily refers to especially sensitive data. Therefore, its importance does not inevitably result from the intensity of the infringement of freedom. However, as the persons affected neither are informed nor have been heard, data screening is regularly carried out secretly (but not necessarily secretly, as data screening concerning Islamist terrorists showed in 2001). Inherently, it has to be classed among intense intrusions. Mainly, the secret
9

BVerfG 65, 1 (43). Id. BVerfG 65, 1 (45). Di Fabio, MAUNZ / DRIG, GRUNDGESETZ, (39th supplement, 2001), Art. 2, annotation 176. Welp, supra note 1, at 392. Welp, supra note 1, at 389, 414; Niehaus, supra note 2, at 200; Sokol, supra note 5, at 192.

10 11 12 13 14

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collecting and processing of data can easily evoke uncertainty among the citizens about what different public authorities know about them. Particularly, that creation of uncertainty has induced the Federal Constitutional Court to develop the principles of data privacy. 15 Decisively, its extraordinarily high spread shows that data screening must belong to the intense intrusions into the basic rights of a citizen.16 To be successful, data screening inevitably requires access to the data of an unmanageable great number of uninvolved persons (of the entire population, in the extreme case), who are not at least suspected. In the course of the data screening following the terrorist attacks in New York City, merely in Nordrhein-Westfalen (Northrhine-Westphalia), data of 5 million males was collected.17 Therefore, viewed from the standpoint of spread, data screening is a mass-intrusion into the fundamental rights of all citizens, which cannot be compared with any other intrusion into fundamental rights carried out by the police or in criminal proceedings.18

C. Statutory Sources Related to criminal proceedings, data screening is regulated in 98 a of the criminal procedure code (Strafprozessordnung, StPO) since 1992. Related to the police, its legal basis partly was established in 2001 in order to authorize the data screening at the universities (e.g. in Schleswig-Holstein, Bremen and Niedersachsen). The legal bases for the police19 do not inconsiderably differ regarding their premises. I. The order competence In several federal states of Germany the realization of data screening is dependent on the order by the district court judge (judicial retention).20 However, in other
15 16 17 18

BVerfG, 65, 1 (43). Welp, supra note 1, at 389, 414; LG Wiesbaden, 4 T 707/01, 3 (6 Feb. 2002); Niehaus, supra note 2, at 200. WESTFLISCHE NACHRICHTEN, (No. 31) 6 Feb. 2002, at RMS 1.

Welp, supra note 1, at 389, 414; Strate, ZRP 143-4 (1990); Wolter, GA 129 (1988); Mhrenschlager, WISTRA 1992, 326.

19 Art. 44 bay. PAG; 40 bad-wrtt. PolG; 47 ASOG (Berlin); 46 PolG (Brandenburg); 36 i BremPolG; 23 Hamb. GesDatVPol; 26 SOG Hessen; 44 SOG M-V; 45 a NGefAG (LT-Dr. 14/2730); 31 PolG NRW; 25 d POG (Rheinland-Pfalz); 37 Saarl. PolG; 47 Schsisches PolG; 31 SOG (Sachsen-Anhalt); 195 a LVwG (Schleswig-Holstein, draft: LT-Dr. 15/1267, p. 4); 44 PAG (Thringen). 20 47 ASOG Berlin; 46 PolG (Brandenburg); 26 SOG Hessen; 31 PolG NRW; 31 SOG (SachsenAnhalt); 195 a LVwG (Schleswig-Holstein, draft: LT-Dr. 15/1267, p. 4).

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federal states of Germany, the head of the State Bureau of Criminal Investigation is responsible;21 sometimes even the agreement of the Secretary/Senator of the Interior is required.22 In Mecklenburg-Vorpommern only the Ministry of the Interior is competent.23 II. Pre-condition of a future peril Concerning the degree of danger which is required to carry out data screening, and regarding the reference objects of danger, there are different statutory sources, as well. 1. Almost all statutes demand an actual danger. Only in Bavaria, BadenWrttemberg and Niedersachsen the simple danger of a future criminal act of considerable importance is sufficient.24 In Schleswig-Holstein a considerable danger is required.25 2. In most German Federal States, the reference objects of danger only are the survival or the safety of the Federal Government or a federal state as well as a persons life, physical integrity or freedom.26 In addition, partial data screening is declared legal to prevent a criminal act of considerable significance.27 In Rheinland-Pfalz a considerable danger is necessary, although reference to a specific object of danger is not required does not have to be referred to.28

21 40 bad-wrtt. PolG; Art. 44 bay. PAG; 36 i BremPolG; 23 Hamb. GesDatVPol (Prses bzw. Staatsrat der fr die Polizei zustndigen Fachbehrde); 45 a NGefAG; 25 d POG (Rheinland-Pfalz); 37 Saarl. PolG; 47 Schsisches PolG; 44 PAG (Thringen). 22 40 bad-wrtt. PolG; Art. 44 bay. PAG; 36 i BremPolG; 45 a NGefAG; 47 Schsisches PolG; 44 PAG (Thringen). 23 24 25

44 SOG M-V. 40 bad.-wrtt. PolG; Art. 44 bay. PAG; 45 a NGefAG. 195 a LVwG Schleswig-Holstein.

26 47 ASOG Berlin; 46 PolG Brandenburg; 23 GesDatVPol Hamburg; 26 SOG Hessen; 44 SOG MV; 31 PolG NRW; 37 PolG Saarland; 31 SOG Sachsen-Anhalt; 195 a LVwG Schleswig-Holstein; 44 PAG Thringen. 27 28

40 bad-wrtt. PolG; Art. 44 bay. PAG; 36 i BremPolG; 45 a NGefAG; 47 schs. PolG. 25 d POG Rheinland-Pfalz.

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There is a direct connection between two relevant elements: the question concerning the competence of ruling and the question referring to judicial remedies for an indictment against the ruling of data screening. On principle, according to 40(1) of the administration procedural code (VwGO) the administrative courts are responsible for indictments against preventive measures taken by the police. 1. The Competency of the Court However, if a district judge (Amtsrichter) is responsible for the ruling of data screening the legal process is arranged according to FGG-code of procedure.29 Consequently, an appeal to a district court (Landgericht, LG) and a further appeal to the appellate court (Oberlandesgericht, OLG) is permitted. On the other hand, if the chief officer and/or the Secretary/Senator of the Interior got ruling competence,30 then the Administrative Court remains responsible. 2. The Range of Judicial Remedies The range of a judicial decision in the appeal procedure depends if there is judicial retention. If the decision of the county court that ordered data screening is reversed by an appellant process, then, at the same time, the polices application for ruling data screening is rejected. In consequence, data screening must be stopped completely, as one of its requirements is missing; the ruling of the court.31 If there is only the retention of a chief officer and if an administrative court declares data screening illegal in connection with a lawsuit of a person affected, this judgement is effective only between the parties (inter partes). The ruling of data screening remains in force for the other persons affected. Theoretically, authorities could continue data screening all persons affected, except for the successful plaintiff. In any case, data screening would not have to be stopped after a decision by the first court.

D. Do the Statutory Regulations Comply with the Constitutional Requirements? According to the adjudication of the Federal Constitutional Court, the state legislator must establish statutory pre-conditions for data screening by the police in order
29

E.g. 31 (4), 3 PolG NRW.

30 40 bad-wrtt. PolG; Art. 44 bay. PAG; 36 i BremPolG; 23 Hamb. GesDatVPol; 45 a NGefAG; 25 d PolG Rheinland-Pfalz; 37 Saarl. PolG; 47 Schsisches PolG; 44 PAG (Thringen). 31

LG Wiesbaden, 4 T 707 / 01 (6 Feb. 2002).

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to guarantee the prine of proportionality.32 A statute which failed to do so, and would leave the judgement whether the procedure satisfies the demands of the principle of proportionality to the administering authorities, would offend the right to data privacy and therefore would be unconstitutional.33 I. The Requirement of a Danger Unlike the data screening based on the criminal procedure code ( 98 a StPO) that requires a suspicion of a past offence, the data screening based on police law only requires a danger to certain subjects in the future. To prevent this danger, the police are allowed to collect and screen data of an indeterminate multitude of persons who need not bear a specific closeness to the dreaded danger. Therefore, data screening based on police law would be allowed, without any limitations, if the statutes do not demand restrictive pre-conditions.34 A statute that would allow data screening in any case of danger for public safety would not meet the requirements of the constitutional principle of proportionality. As mentioned before, the state laws require increased levels of danger according to the principle of proportionality. 1. Danger of a future substantial offence / substantial danger If some state laws only demand a certain reference object for the danger by demanding a danger of a future substantial offense or a substantial danger, this law cannot be deemed a real restriction. Facing the extensive costs and manpower that data screening requires, the police will not use this method for preventing minor offenses (e.g. shoplifting). But even the theft of a locked bicycle (243 of the criminal code (StGB)) is - in cases of professional perpetration - already a substantial offense (e.g. 8(3) No. 1 of the police law code of Nordrhein-Westfalen (PolG NRW); 2 No. 10 c) of the police law code of Niedersachsen (NGefAG). Therefore, the condition substantial offence does not achieve anything beyond the general principle of proportionality, which the method has to meet anyway.35

BVerfG 20, 162 (187); Rudolphi, introduction to 94, in SYSTEMATISCHER KOMMENTAR ZUR STRAFPROZESSORDNUNG, annotation 68; Welp, supra note 1, at 389, 411; Degener, Grundsatz der Verhltnismigkeit und strafprozessuale Zwangsmanahmen, Berlin 1985, p. 203; Niehaus, supra note 2, at 188.
32 33 34 35

LVerfG Mecklenburg-Vorpommern, 2 (98). Sokol, supra note 5, at 188, 192. Welp, supra note 1, at 407; Niehaus, supra note 2, at 169.

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2. Present Danger to an Important Subject of Protection In fact, the intrusion into privacy of a multitude of persons by data screening can only be proportional if a higher grade of probability exists that a danger will realise. Therefore, most of the state police law codes rightly require a present danger (i.e. circumstances, where the danger has already begun to realize or is imminent with a high level of probability). Furthermore, the plentiful access to data of countless unsuspected people must not occur to prevent any danger. In fact, data screening is only proportional if it is used to protect outstandingly high-ranking subjects. Therefore, the principle of proportionality requires an increased level of danger and outstanding high rank of the subject of protection. Thus, only the state police laws which allow data screening only to prevent a present danger and only if a high-ranking subject of protection is endangered, are proportional and complying with the constitution (e.g. life, liberty or physical integrity of a person or integrity of the federation or a federal state). II. Order Competence Due to the character of data screening as a plentiful intrusion into the rights of completely uninvolved people, the larger part of the affected persons will not be made aware of the screening. With regard to these persons, factually, data screening is a clandestine method. On the other hand, Article 19 IV of the German Basic Law (Grundgesetz) requires effective legal protection against governmental procedures that cannot be given if the affected persons do not know of the screening of their data.36 Therefore, clandestine methods based on criminal procedure law regularly require an authorisation by judge (cp. 98 b, 100 b, 100 d StPO). Thereby, a judicial control can be achieved at least in the forefront of the procedure.37 There are no differences concerning clandestine intrusions into base rights founded on police law. 1. Order by Chief Officer as a Sufficient Control? Some federal state laws reserve the order competence to the chief officer of the police. Thereby, in many cases, the procedure will be deprived of judicial control. The chief officer is part of the executive branch; therefore, with regard to the necessity of prior legal protection by a neutral judge, his prior participation is irrelevant. Consequently, concerning legal protection, there are doubts about the constitution36 37

OLG Dsseldorf, 3 Wx 357 / 01, 5 (8 Feb. 2002); VerfGH Sachsen, JZ 1996, 957, (963-4). Cf. VerfGH Sachsen, JZ 1996, 957 (963).

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ality of those state laws which merely demand an order by the chief officer for data screening. 2. Advisability of the Assignment of the Order Competence to the Regular Courts As far as the state laws reserve the order competence to the courts, they assign this task to the regular courts (ordentliche Gerichtsbarkeit). For procedures based on criminal procedure law, this assignment is a matter of course. However, it is questionable why the state police laws, too, assign the order competence to the regular courts. Concerning imprisonment, this assignment might be sensible38 because the arrest warrant is often requested with short notice and therefore, can better be issued by the nearby county courts. Furthermore, these courts are competent in other cases of imprisonment, as well (cp. 3 of the code concerning the judicial procedure referring to imprisonment). However, these considerations do not apply to a data screening-order. Reasons why it should not be under examination of the administrative courts, which are competent for matters of police law, are not apparent. In fact, several practical problems arise from the assignment of competence to the regular courts. For example, in 2002, a district court decided on an appeal against data screening asked the appellant for duplicates of the quoted police law-literature because it was not available in the library of the district court. Furthermore, the FGG-code of procedure does not follow with the specifics of police law based intrusions into basic rights. For example, according to the wording39 of the statute, there is no claim for the subsequent ascertainment of illegality, if the procedure is finished in the meantime which often is the case concerning police procedures. In the administration procedural law code (VwGO) 113(1)4 would be at disposal. 3. Efficiency of the Requirement of a Judicial Order as a Protection-Mechanism for Basic Rights Considering the efficiency of the requirement of a judicial order as a protectionmechanism for basic rights, the assignment of competency to the regular courts must be criticised as well. In the range of intrusion into basic rights based on criminal procedure law (e.g. telephone surveillance), according to researches of the Federal Ministry of Justice, not a single case existed where county courts dismissed an

38

E.g. 36 PolG NRW.

39 Therefore, subsequent legal protection has to be created through constitutional considerations by the courts (cf. OLG Dsseldorf, 3 Wx 357/01, 5 (8 Feb. 2002)).

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application.40 One reason for this might be that these proceedings (so called GSproceedings) are not credited for the workload of the judge. Furthermore, the county court judge has to face matters (police law) which do not belong to his usual competency. Under these circumstances the county court judge will often simply trust the information given by the police and grant the application. Considering these facts, the requirement of a judicial order by the county courts cannot be deemed a serious control of the methods.41 The inefficiency of the present pre-condition of a judicial order as a protectionmechanism can be shown by the development of judiciary in the present legal discussion about the legitimacy of data screening. While not a single county court judge dismissed an application by the police, the higher courts later partly criticised that the applications were solely based on suppositions and did not get beyond speculations.42 Such deficiencies must have had been recognised by the county courts if they had seriously examined the applications. Therefore, the efficiency of judicial control begs for an assignment of the prior judicial order to the administrative courts.

E. Data Screening after the Attacks in New York City Investigations after the terrorist attacks in New York resulted in a delinquent profile, which included the following characteristics: male, 18 years old at least, 41 years at the most, Islamic, student or former student, valid permit of residence without any local restriction, unknown to the police, no children of his own, financially independent (not understandable, irregular deposits in the bank account).43 After data screening had been ordered in all federal states, among others the universities were forced to hand over the data of their enrolled students. The scope of that data diverged from one federal state to the other. For instance, in Berlin only the data of citizens from 15 countries had to be given to the authorities,44 in Nordrhein-Westfalen, however, the data of all male students between 18 and 41 was required.
40 Thommes, StV 1997, 657, 660 and 664; Welp, Festschrift Mangakis, Athens 1999, pp. 809, 814; BTDr. 12 / 8396, p. 3; BT-Dr. 13 / 6689, p. 5; BT-Dr. 13 / 7341, p. 5. 41 Dencker, Organisierte Kriminalitt und Verfassungsstaat, in: RECHTSSTAAT IN DER BEWHRUNG, Vol. 33, 41, 55 (Albrecht & Dencker et. al., Heidelberg 1998); Welp, StV 1994, 161, 163. In the same way Gtz, JZ 1996, 969, 970; Lisken / Mokros, NVwZ 1991, 609. 42 43 44

LG Wiesbaden, 4 T 707 / 01, 4 (6 Feb. 2002). AG Wiesbaden, 71 GS 531/01 (25 Nov. 2001). FRANKFURTER RUNDSCHAU, (No. 242) 18 Oct. 2001, at 6.

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I. Order Premises As in numerous federal states, students affected filed suit due to the data screening, the courts had to find out whether there was a valid premise allowing data screening. In most federal states an actual peril for the survival or safety of the Federal Government or a single federal state or for a persons physical condition, life or freedom is required for data screening. 1. Actual Peril A definition of the term actual danger can be found in 2 NGefAG: According to it actual danger means a danger where the effect of the harming event has already started or where it is about to start or will start the next time. Therefore, a latent or potential peril, where actual dangerousness does not presently exist, but where a later emerging source of danger cannot be precluded,45 is not satisfactory. Comparing all grades of danger actual danger to life or physical condition is the ultimate threat.46 So, facts are necessary to justify the prognosis that subjects of protection are endangered by life, physical condition or the safety of the Federal Government and of the federal states. The required actuality of danger demands that the endangering of the subjects of are endangered by mentioned above has either already started or will with the utmost probability, at least, will start immediately or in the very next time.47 2. Danger for domestic subject of protection It has to be stressed that the subjects of protection must be in actual danger in the respective federal states, as only then may police of the respective state act. So, the assumption that persons who stay in Germany might plan further attacks in the USA is not a suitable ground for actual danger. A repressive data screening for use in criminal proceedings based on 98a StPO could have been undertaken when there was an initial suspicion for one of the offences enlisted in 98a StPO (e. g. the foundation of a terrorist association, 129a StGB). The federal states of Germany have not made use of that possibility, instead, they decided for the means of preventive statutory sources (i.e. police law).

45 46

Cf. LISKEN & DENNINGER, HANDBUCH DES POLIZEIRECHTS, chapter E, annonation 51.

Lisken & Denninger, supra note 45, at chapter E, annotation 47; LG Wiesbaden, 4 T 707/01, 3 (6 Feb 2002). Lisken & Denninger, supra note 45, at chapter E, annotation 43.

47

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The courts which have dealt with the issue of actual danger reached different conclusions. 1. The district court (Amtsgericht, AG) of Dsseldorf48 takes the following view: The required certainty of damage decreases as the extent of the possible damage increases.. The terrorists responsible for the attacks in New York would accept the death of thousands of people. As some of the supposed supporters of Osama Bin Laden had been living in Nordrhein-Westfalen, danger would exist there, too, even if an immediate attack could not surely be predicted at the moment. 2. The regional court (Landgericht, LG)49 and the appellate court (Oberlandesgericht, OLG) of Dsseldorf50 have accepted the explanation of the Amtsgericht. As the Federal Government declared its unrestricted solidarity with the United States course of action and as Islamist terror organisations announced to exercise measures of retaliation against the states taking part in military actions, an actual danger to the safety of the Federal Government or a federal state must exist. However, the OLG Dsseldorf considers the ruling of data screening concerning German citizens to be disproportional (cf. 3, below).51 3. The Verwaltungsgericht (administrative court) Mainz, also held the requirement of the existence of an actual peril to be fulfilled.52 In contrast to the courts in Nordrhein-Westfalen, it did not find a state of danger to German subjects of protection existed, but it permitted data screening in order to fight dangers outside of Germany as well. This is based on Art. 1 (2) GG, which included an pledge of the state to support the worldwide realization of human rights.53 Contrary to the legal position of most other federal states, in Rheinland-Pfalz (Rhineland-Palatine) a restriction on the specific objects of actual danger is missing. Consequently, data screening can be used for preventive measures to combat crime. According to 6 StGB (Weltrechtsgrundsatz), German criminal law is applicable for crimes caused by explosives ( 308 (1) (4), 309 (2), 310 StGB), so the Verwaltungsgericht Mainz believes it to be sufficient that the expected criminal act may occur in a foreign country.
48 49 50 51 52 53

AG Dsseldorf, 151 Gs 4092 / 01 (2 Oct. 2001). LG Dsseldorf, 151 II 1/01 (29 Oct. 2001). OLG Dsseldorf, 3 Wx 351 / 01 (8 Feb. 2002). Id. VG Mainz, 1 L 1106101.MZ (19 Feb. 2002). Id. at 8.

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4. The Landgericht Wiesbaden, the OLG Frankfurt and the Landgericht Berlin have denied the existence of an actual peril.54 They say that the reasons for the application are only based on speculations and assumptions and add that even the Federal Government has repeatedly pointed out that there are no clues for terrorist attacks in Germany; however, the mere possibility of a terrorist attack is insufficient to create an actual peril. 5. The above observation has to be agreed to.55 With good reason, the Landgericht Wiesbaden, at first, refers to the fact that the state legislator on purpose has made data screening dependent on an increased extent of danger, specifically because it is a mass intrusion into basic rights.56 Here, the existence of an actual peril unreservedly has to be reviewed by the courts; they are not allowed to confine themselves to a control of mere plausibility.57 This is due to the fact that in those federal states where a retention of the judge exists the court acts as the ordering instance, not as a supervising judge. In those federal states the police authorities only enter an application, the intrusion into basic rights is directed by the court alone. The applications for data screening directed by the police could not present concrete clues, based on facts, that the life or physical condition of the people of Germany were in danger. The possibility to become a victim of a terrorist attack cannot be completely ruled out for any person, at any time, at any place in the world. However, this is not sufficient to claim the existence of an actual danger, to do so would completely deprive this predicate of any restrictive effect and attach the mere function as an alibi to it. Therefore, legal literature cites as examples of actual danger, states of emergency, and other similar situations, those situations where there is the kidnapping of an individual by terrorists or a probable threat of kidnapping.58 Evidently, there is no comparable danger, proven by concrete facts, for an domestic German subject of protection. The danger of terrorist attacks in foreign countries are not in contrast to the opinion of the
54 LG Wiesbaden, 4 T 707/01, 3 (6 Feb. 2002); LG Berlin, 84 T 8 / 02 (15 Jan. 2002); OLG Frankfurt, 20 W 55/02 (21 Feb. 2002). 55 See also Welp, quoted in UNICUM No. 11 (2001), at 18; Gssner, FRANKFURTER RUNDSCHAU, (No. 85) 12 Apr. 2002, at 7. 56

LG Wiesbaden, 4 T 707/01, p. 3 (6 Feb. 2002).

57 OLG Frankfurt, 20 W 479 / 01, (8 Jan. 2002); OLG Frankfurt, 20 W 55/02, 4 (21 Feb. 2002); BVerfG, 83, 24. 58

Tegtmeyer, PolG NRW, 8th edition, 31, annotation 6.

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Verwaltungsgericht Mainz59 a strong basis for intrusions into basic rights carried out by the police, since the police are not competent to fight against such a danger. Apparently, such a competence does not result from the states duty to protect life and the realization of human rights as the court believes. The mere fact that fundamental principles like these are considered for questions of competence should arouse a distrust of this argumentation. Furthermore, such a duty to protect only relates to domestic inland subjects of protection and to dangers which present in Germany. Therefore, no one will assert that the police of Rheinland-Pfalz referring to the German Grundgesetz (Basic Law), which demands the protection of life are competent and authorized to conduct investigations in the USA in order to prevent attacks on American cities. Just as little, a danger for foreign subjects of protection which could realize in a foreign country, entitles the police to inland investigations, because such a peril is out of the competence of the German police. The same is applicable to the reference to the competence of the state police concerning the prosecution of crime by the Verwaltungsgericht Mainz. In an inadmissible way the court mixes the conditions for repressive and preventive acting, when it wants to deduce the competence of the police of Rheinland-Pfalz for preventing crimes from 6 StGB. The authorities, mainly the public prosecutors offices, can act repressively, if one of the crimes mentioned in 6 StGB is suspected to exist, even if this crime has been committed in a foreign country. This does not necessarily mean that the police are competent to conduct preventive investigations, as soon as anywhere in the world anybody is planning to deal with narcotics ( 6 No. 5 StGB). On the contrary, state police only becomes competent, if either subjects of protection of the federal state or those of its citizens are endangered or if the possibility of danger within the federal state exists. Both the situations do not apply to the fear of further attacks in a foreign country. The same analysis fits the situation where German citizens were injured in the attacks on 11 September 2001, which according to 7 StGB as the Verwaltungsgericht Mainz points out brings into application German criminal law, as well. In this case the court also mixes repressive and preventive acting in an inadmissible way. Because German citizens were injured in the attack in New York, it was possible for public German authorities to act repressively on the basis of 98 a StPO in order to clear up that crime. To become competent for a prevention of crime in foreign countries concrete clues are necessary that showing German subjects of protection are in danger again. Currently, this cannot be assumed without getting absorbed in

59

VG Mainz, 1 L1106101.MZ, 9 (19 Feb. 2002).

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speculations. The mere fear that German citizens could be injured in attacks anywhere in the world does not prove an actual danger according to police law.60 The point that required certainty of damage decreases as the extent of the possible damage increases is unconvincing in this situation.61 Anyhow, the state legislators have permitted data screening only if extremely essential subjects of protection (physical condition, life, freedom, the survival or safety of the Federal Government or of a federal state) are endangered. In spite of the high importance of these subjects of protection not just any danger is sufficient for the state legislator to allow data screening, but they demand the existence of an actual danger to do so. Consequently, if one wants to decrease the demands on the probability of danger with reference to the high importance of the endangered subjects of protection, one disregards the evident intention of the legislator. The substitution of the predicate actual danger by terms like urgent danger, or concrete danger, which demand lower degrees of danger, are actions exclusively reserved for the legislator, as the OLG Frankfurt points out with full justification.62 The terrorist attacks which brought about data screening were only directed against the United States. At no time in the past was there a threat to life and physical condition in the German federal states, and concrete circumstances (in contrast to mere fear) which could prove such dangers in the future are totally missing. If as the OLG Dsseldorf believes different public institutions were striking, potential aims of terrorist attacks,63 the question must be asked, why the nuclear power stations, for instance, are not deactivated, because they are apparently regarded as potential aims. For such safety precautions the danger apparently was not actual enough.64Rightly, the Landgericht Berlin and the Landgericht Wiesbaden refer to press releases of the Federal Government (e. g. from 10 October 2001), which say that the Federal Ministry of the Interior, even after the attacks on targets in Afghanistan, has no clues of intended terrorist attacks in Germany. On 20 September 2001, the Federal Government declared that there was no actual danger for Germany. On 26 September 2001, another press release of the Federal Government pointed out that the Ministry of the Interior as well as the secret services had discovered no reason for concern at the moment. On the contrary, they
60 61 62 63 64

OLG Frankfurt, 20 W 55/02, 7 (21 Feb. 2002). Id.. Id. OLG Dsseldorf, 3 Wx 357/01, 3 (8 Feb. 200).

FRANKFURTER RUNDSCHAU, (No. 35) 11 Feb. 2002, at 3; Gssner, FRANKFURTER RUNDSCHAU, (No. 85) 12 Apr. 2002, at 7.

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mentioned eventualities, which hopefully would not happen. Consequently, if even the Ministry of the Interior on the basis of its secret service sources arrives at the conclusion that there is no actual danger for German subjects of protection, then the judgement of the Landgericht Dsseldorf that there is an actual danger for the survival or the safety of the Federal Government or a federal state cannot prevail: The highest representatives of this subject of protection have publicly declared the opposite. III. The proportionality of intrusion The considerable importance of data screening as a mass intrusion into basic rights demands an especially careful examination of proportionality in the individual case.65 1. Suitability Mainly, there are doubts about the fulfilment of the principles of proportionality in connection with the partial principle of suitability to repel dangers which could come from the members of the terrorist organisation around Bin Laden.66 The search criteria which data screening is based on are by far too general to result in the group of foreign students they are directed to find.67 For instance, in NordrheinWestfalen about 11,000 cases were left to investigate when data screening was finished (and circa 2.000 persons in Bavaria).68 These result again demonstrates that data screening is an unqualified means of discovering persons, whose characteristic feature is inconspicuousness. This thesis is proved by the processes complete ineffectiveness, which was revealed in spring 2002.69 Therefore, data screening would only have been suitable to repel perils, if there had been at least one criterion that could have been a concrete indication of a potential terrorist plot. However, the data screenings take into account as a search criteria the very circumstance that a person has not become conspicuous to the police.

65 66 67

OLG Dsseldorf, 3 Wx 357/01, 7 (8 Feb. 2002). OLG Frankfurt, 20 W 55 / 02, 8 (21 Feb. 2002). material doubts. Welp, supra note 55; Jansen, FRANKFURTER RUNDSCHAU, (No. 40) 16 Feb. 2002, at 5.

68 FRANKFURTER RUNDSCHAU, (No. 40) 16 Feb. 2002, at 5; WESTFLISCHE NACHRICHTEN, (No. 31) 6 Feb. 2002, at RMS 1. 69

FRANKFURTER RUNDSCHAU, (No. 35) 11 Feb. 2002, at 1.

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It is also doubtful of the necessity for, as in Nordrhein-Westfalen for example, universities to hand over the data of German citizens to the police. Rightly, the OLG Dsseldorf has declared data screening disproportional,70 because German citizens who are not members of the Islamist community , are not even theoretically assumed to become terrorists.71 As data screening results in other federal states show, the restriction of the method on citizens of certain countries and on Islamist believers is an equally suitable, but more gentle means, compared with the inclusion of the entire male population. 3. Appropriateness Therefore, data screening would only be proportional concerning foreign citizens and Islamist believers. As a matter of fact, these data are the only remaining search criteria besides age and sex. Finally, there is no selection of a group of people with certain criteria from the unmanageable amount of the entire population with the help of concrete search criteria, as it would correspond to the conception of data screening. Instead, large groups of the population are imputed a kind of affinity to danger a finding which amounts to a general suspicion. Consequently, this kind of data screening is hardly suitable to discover potential terrorists, but instead supports prejudices spread within the entire population against certain groups of the population.72

F. Data screening on the basis of the criminal procedure code Since there was no present danger for subjects of protection in Germany, the question arises why the police did not base their proceeding on 98 a StPO, which does not contain this pre-condition. Data screening can be based both on police law and on criminal procedure law (double-functional method.73) The cause of such a proceeding could have been the suspicion of the existence of a terrorist organisation.

70 71 72 73

OLG Dsseldorf, 3 Wx 357 / 01 (8 Feb 2002). Id. FRANKFURTER RUNDSCHAU, (No. 37) 13 Feb. 2002, at 3.

Lisken & Denninger, supra note 45, at chapter E, annotation 155; Tegtmeyer, PolG NRW, 1, annotation 39.

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98 a StPO requires a suspect with regard to one of the offences that are numerated in the first paragraph. According to 98 a (1), No. 2 StPO, in conjunction with 120 (1) No. 6 of the constitution of the courts-code (Gerichtsverfassungsgesetz GVG), the suspicion of the existence of a terrorist organisation ( 129 a StGB) is sufficient. On the other hand 129 a StGB requires that the organisation possesses at least an independent sub-organisation in the F.R.G.74 Such independent structures of the Al-Quaeda-network did not exist in Germany (unlike the Kurdish PKK, for example). Therefore, a suspicion sufficient for 98 a StPO did not exist at that time (the new 129 b StGB which extends the scope of application of 129 a StGB on foreign terrorist organisations could not have been applied75).

G. Right to restitution Unsolved is the question of how to deal with the all the collected personal data. According to the state laws the data must be deleted as soon as they cease to be used.76 For example, in Nordrhein-Westfalen disks with the data of about 5 million men were destroyed publicly in a waste incineration plant.77 But the question arises what happens with the data of those persons to whom the extremely abstract criteria apply (so called Rechercheflle78). This regards to the data of 11,000 persons in Nordrhein-Westfalen solely. After the terrorist attacks in September 2001, the Federal Bureau of Criminal Investigation (Bundeskriminalamt) created a data file called Verbunddatei Schlfer where all state police agencies transmit their information.79 Therefore, the data of tens of thousands law abiding persons could be preserved at the Federal Bureau of Criminal investigation. A similar data collection happened in connection with the terrorist investigation in the seventies. At that time the Federal Bureau of Criminal Investigation created a data file called PIOS (persons, institutions, objects and properties) where information concerning above 135,000 persons, 5,500 institutions, 115,000 objects and

74 BGH 30, 329; Trndle & Fischer, StGB, 50th edition, 129 a, annotation 3, in conjunction with 129, annotation 2. 75 76 77 78 79

Draft: BT-Dr. 14 / 7025, 4 Oct. 2001; adopted by the Bundestag on 26 Apr. 2002. E.g. 31 (3), 1 PolG NRW. WESTFLISCHE NACHRICHTEN, (No. 31) 6 Feb. 2002, at RMS 1. FRANKFURTER RUNDSCHAU, (No. 40) 16 Feb. 2002, at 5. FRANKFURTER RUNDSCHAU, (No. 35) 11 Feb. 2002, at 1.

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more than 74,000 things were archived.80 Amongst the registered persons were inter alia schoolmates, siblings and parents of suspects as well as the data of about 7,000 persons who had visited a suspect in prison. Only a few of these data files have been erased.81 Therefore, there is reason to raise the question of what will happen with the collected data provided by all federal states. According to the interpretation of law argued here, the people who were targeted by data screening have the right of restitution that is aimed at deletion of their data from all data files of the state bureaus of criminal investigation and the Federal Bureau of Criminal Investigation. H. Conclusion I. The use of data screening as mass intrusion into the basic right of selfdetermination about personal data that identifies an indetermined multitude of unsuspicious persons requires a statutory regulation that restricts the screening to cases of an increased degree of danger and to dangers to important subjects of protection. Therefore, the statutory sources in police law conform with the principle of proportionality only as far as they require a present danger to life, physical integrity or personal freedom or to the integrity of the F.R.G. or a federal state. II. The effective protection of basic rights through process requires prior control of the legal predicates by an independent judge (not the chief officer or the home secretary). For reasons of appropriate allocation of rights and duties and for reasons of efficiency of the judicial order as a protection-mechanism for basic rights, this control should be assigned to the administrative courts, not the regular courts. III. By failing the predicate of a present danger for domestic subjects of protection the requirements of data screening for retrieval of Islamist terrorists were not complied with. Great intrusion into the right to data privacy of a multitude of unsuspicious persons constitutes a disproportional invasion of the right to self determination concerning personal data because it is an inappropriate method for tracing persons who are characterised by their inconspicuousness. So long as the personal data of persons to whom the extremely abstract criteria apply are recorded, these persons have a right of restitution which contains a claim for deletion of their data from the files of the bureaus of criminal investigation.

80 81

AUST, DER BAADER-MEINHOF-KOMPLEX 203 (Berlin 1989). Id. at 203-4.

SPECIAL ISSUE Terror and Law Is the German Legal System able to deal with Terrorism? - The Bundesgerichtshof (Federal Court of Justice) decision in the case against El Motassadeq By Christoph J.M. Safferling

Germany was the first country to open trial against a person who has allegedly participated in the 9/11 terror attack in the US. Shortly after September 2001 intelligence services in- and outside Germany concentrated on Hamburg as one of the places where the pilots and their supporters planned the attack.1 The Maroccan national Mounir El Motassadeq was the first who was arrested and charged by the General Federal Prosecutor2 with (1) abbeting murder in 3066 cases3 and (2) with being a member of a terrorist organisation4. The trial took place before the Oberlan-

Dr. iur (Munich), LL.M. (LSE), assistant professor, institute for criminal law, criminal procedure and criminology (Professor Dr. Franz Streng), University of Erlangen-Nrnberg, member of the German Law Journal editorial board. 1

A second trial was opened against the Maroccan Abdelghani Mzoudi at the OLG Hamburg. He was released on bail on 11 December 2004 and has been found not guilty on 5 February 2004. The public prosecutor has appealed against the acquittal to the BGH. Cases of national security are to be prosecuted by the General Federal Prosecutor in Karlsruhe by virtue of Section 142a, 120 of the Organisation of the Courts Act (Gerichtsverfassungsgesetz). Punishable under Section 211 of the German Criminal Code. Punishable under Section 129a of the German Criminal Code, which reads as: (1) Whoever forms an organization, the objectives or activity of which are directed towards the commission of: 1. murder, manslaughter or genocide (Sections 211,212 or 220a); 2. crimes against personal liberty in cases under Sections 239a or 239b; or 3. crimes under Section 305a or crimes dangerous to the public in cases under Sections 306 to 306c or 307 subsections (1) to (3), 308 subsections (1) to (4), 309 subsections (1) to (5), 313, 314 or 315 subsections (1),3 or 4, 316b subsections (1) or (3), or 316c subsections (1) to (3), or whoever participates in such an organization as a member, shall be punished with imprisonment from one year to ten years. (2) If the perpetrator is one of the ringleaders or supporters, then imprisonment for no less than three years shall be imposed. (3) Whoever supports an organization indicated in subsection (1) or recruits for it, shall be punished with imprisonment from six months to five years.

3 4

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desgericht (Upper Regional Court OLG) in Hamburg, where the accused resided at that time. He was sentenced by this Court in first instance to 15 years imprisonment the first conviction for the 9/11 attack. The accused nevertheless appealed to the Bundesgerichtshof BGH, Federal Court of Justice, and his conviction was quashed and a re-trial ordered at the Court in Hamburg. 5 In reaction to the BGHs decision Motassadeq was released from detention pending trial on 8 April 2004. The accused now awaits his re-trial on conditional bail.6 The reaction of the media to this release in particular was devastating. At first it seemed that the German criminal justice system was well capable to hand down to justice those who instigated the destruction of the World Trade Centre. German authorities seemed to move both swiftly and thoroughly. Has it all come down to tears now after the BGH has spoken? Reading the newspaper comments one could have this impression. The conservative Frankfurter Allgemeine Zeitung wrote the day after the decision on bail: The release of the Maroccan Motassadeq shakes the trust in the ability to decide and the effectiveness of our judicial system7. The political and emotional stakes are high. It is nevertheless necessary to take a sober and careful look at the reasoning of the BGH. The conflict which shows then is as old as criminal law itself: liberty versus efficiency. I. The Facts There are two different sets of facts at this case. At first there are the facts established by the Prosecution which are the basis for the verdict of the Oberlandesgericht of Hamburg (1). Secondly there are the explanations given by the defence (2). Naturally both are in conflict with each other. Here is a short outline of both versions.
(4) The court in its discretion may mitigate the punishment (Section 49 subsection (2)) in cases under subsections (1) and (3) in the case of participants whose guilt is slight or whose participation is of minor significance. (5) Section 129 subsection (6), shall apply accordingly. (6) Collateral to imprisonment for at least six months, the court may deprive the person of the capacity to hold public office and the capacity to attain public electoral rights (Section 45 subsection (2)). (7) In cases under subsections (1) and (2) the court may order supervision of conduct (Section 68 subsection (1)). A translation of the entire German Criminal Code is available at: http://www.iuscomp.org/gla/statutes/StGB.htm (visited 27 April 2004).
5 BGH Decision of 4 March 2004, Case No. 3 StR 218/2003, reprinted in: Neue Juristische Wochenschrift (NJW) 2004, 1259. 6 7

The re-trial will probably commence 16 June 2004 FAZ 8 April 2004, p. 1.

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The OLG found the following facts: Motassadeq started to study mechanics in the Technical University of Hamburg-Harburg in 1995. There he became acquainted to Mohamed Ed Amir Atta, Marwan Alshehhi and Ziad Jarrah, who died in the 9/11 attack as well as to Ramzi Binalshib, Zakariya Essabar and Said Bahaji who are all otherwise charged. In the following time they formed a religious Islamic group and their political and religious persuasions became more and more radical. At latest in the spring of 1999 they decided to prepare for a spectacular terror attack in the USA in order to painfully hit the hated US government. By flying planes into the World Trade Centre they wanted to target an emblematic building and at the same time kill a multitude of US citizens. In 1999 in order to win more support for their plans several members of the group travelled to Afghanistan and met Al Quaeda leader Usama Bin Laden. In the meantime the accused Motassadeq stayed in Hamburg covering up for his friends trip to Afghanistan and blur any possible suspicion. In May 2000 the accused himself flew to Afghanistan in order to inform Al Quaeda officials about the progress of the planning. He returned 1 August 2000. Shortly after Atta, Alshehhi and Jarrah entered the USA and started the pilot-training there. In the meantime the accused organised in particular the financial side of the stay of his friends in the USA. The public prosecutor presented namely one money transferral of 5000 DM on the request and to the bank account of Binalshib for one of the later pilots. After the successful attack Motassadeq decided to remain in Germany and stay with his daughter and his pregnant wife. The defence did not negate that the accused knew and met with the pilots of the 9/11 attack in Hamburg. It was also admitted that the accused spent some time in Afghanistan. However the reason for this stay, the defence claimed, had nothing to do with the attack. Motassadeq was trained there for the fight in Chechnya and learned to use a weapon just as is ordered by Koran. II. The Procedure These two positions were brought forward at trial. The question then was, can the prosecutors hypothesis be proven beyond reasonable doubt. Points of clear proof for an involvement of the accused with the attacks, there were mainly two: the trip to Afghanistan and the money transmittal. The purposes of both circumstances were unclear. In order for the judges to scrutinise the hypothesis of the prosecutor, Binalshib was subpoenaed to testify at trial. As a matter of fact this alleged terrorist was imprisoned in the USA. Not only did the US authorities disallow the witness to testify at trial but even an FBI agent, who appeared at trial was barred from elaborating on this point. In addition the German government ordered the German national intelligence service (Bundesnachrichtendienst BND) to withhold any in-

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formation8 as regards Binalshib. The judges in Hamburg were thus left in total darkness as regards any testimony of Binalshib as the person who allegedly requested the money transfer. Nevertheless the Hamburg Oberlandesgericht convicted on the basis of information and evidence stated above. The defence appealed against this conviction. This is not surprising for mainly three reasons. Firstly, in important criminal cases an appeal to the BGH is almost obligatory. In the legal practice it is seldom the case that a judgment is not being reviewed by the BGH unless there has been a deal. Secondly, however, any accused would have been ill advised not to appeal against this judgement. The evidentiary basis in this instance could hardly have been poorer. Furthermore, the legal question of how a court should deal with a situation where persons are not allowed to appear as witnesses, is always tricky as it is not explicitly addressed in the German Code of Criminal Procedure.9 III. The Law There are two issues that arise in procedural law. (1) What is to be done with non present witnesses and (2) what is the standard of proof needed for a criminal conviction. Both issues have to do with the overall notion of a fair trial. 1. The procedural requirements In German law criminal procedure is regulated by the Code of criminal procedure Strafprozessordnung (StPO). This code however is influenced by the Grundgesetz (Basic Law) and the so-called Justizgrundrechte10 therein as well as by human rights law, in particular as laid down in the European Convention on human rights (ECHR).

8 The Government can issue a so-called Sperrerklrung by virtue of Section 96 of the German Code of Criminal Procedure: Submission or delivery of files or of other documents officially impounded by authorities or public officials shall not be requested if their superior authority declares that the publication of these files or documents would be detrimental to the welfare of the Federation or of a German Land. The first sentence shall apply mutatis mutandis to files and other documents held in the custody of a Member of the Federal Parliament or of a Land Parliament or of an employee of a Federal or Land parliamentary group where the agency responsible for authorizing testimony has made a corresponding declaration. 9

For an English translation of the code, see http://www.iuscomp.org/gla/statutes/StPO.htm#96 (visited 27 April 2004). These are articles 101-104 Grundgesetz.

10

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Every procedural system has to deal with the problem of non present witnesses. The general rule is, that every witness for the prosecution has to be present at trial so that the accused can confront this witness. The right to confront a witness is explicitly stated in Article 6 3 d ECHR.11 On the other hand the accused must have the right to call witnesses in his favour. This again is laid down in Article 6 3 d ECHR. The German Code of Criminal Procedure has a specific system as concerns the question of calling and questioning witnesses. In Section 244 II StPO the Trial Court is first of all called upon to inquire the truth of the matter.12 This maxim is of overall importance to the realisation of the Schuldprinzip, i.e. the principle that the sentence needs to comply with the guilt.13 In principle the truth can only be detected, if all witnesses for and against the accused were present and could be examined. A court is however not obliged to rely only on direct evidence. In the Anglo-American trial system, any such testimony would be excluded as hearsay.14 Continental procedural systems rely on the professional experience of the judges to properly evaluate and weigh the evidence. (bb) Exception The BGH has developed a rather rough system of dealing with prosecution witnesses which are not present. This jurisprudence contrasts openly with the European Court of human rights point of view in this regard. Whereas the ECourtHR has clearly stated, that a conviction must not be based on the testimony of a witness who could not be questioned by the defence15, the BGH in general upholds a conviction that is based mainly on the evidence on a police informer introduced at trial indirectly.16 In the decision under review here the BGH refers to this jurisprudence
11 12

Compare ECourtHR Barber v. Spain, Series A No. 211, para. 59. This is the essential aim of the entire trial process, compare e.g. BVerfGE 63, 45, 61.

13 The BGH has stressed the connection between the Schuldprinzip and the fair trial principle in the decision at hand, NJW 2004, 1261. 14 15

Safferling, Towards an International Criminal Procedure (2003), 306-309.

See ECourtHR van Mechelen v. The Netherlands, Rep. 1997-III, para. 55, 63; see also Renzikowski, 54 Juristenzeitung 1999, 605.

16 Compare BGHSt 42, 15, 25; BGH NJW 2001, 2245 and BVerfGE 57, 250, 292 the difficulties of the German courts with the ECHR in this regard are explained by Esser, Auf dem Weg zu einem europischen Strafverfahrensrecht (2002), 677-681; also Weigend, 21 Strafverteidiger 2001, 63, 64.

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stressing, that such information needs to be scrutinised most thoroughly (bedrfen der sorgfltigsten berprfung)17. It is interesting to note that the BGH obviously believes that other evidence does not need to be questioned with the same level of thoroughness. However, in the case at hand, the situation is different. It is not the case that evidence which has been presented to the Court only in an indirect way needs to be evaluated. Here the testimony cannot be introduced at trial at all, not even indirectly. The evidence is entirely unavailable to the Court.18 The fact that the witness in this case is not a prosecution witness but one of the defence does not change the situation. The search for the truth is materially hampered. Section 244 III-V StPO gives a list of situations in which evidence does not need to be heard at trial even if the defence has thus requested. In the case at hand Section 244 III StPO is relevant as this norm is applicable to witness evidence. An application to take evidence may be rejected only if the taking of such evidence is superfluous because the matter is common knowledge, if the fact to be proved is irrelevant to the decision or has already been proved, if the evidence is wholly inappropriate or unobtainable, if the application is made to protract the proceedings, or if an important allegation which is intended to offer proof in exoneration of the defendant can be treated as if the alleged fact were true19. The only reason to vote down the request of the defence to hear the witness Binalshib given in Section 244 III StPO would be that it is unobtainable evidence. However, this is only the case because of the unwillingness of the executive authorities to allow the witness to testify. Without this denial, no other reason given in the Code could apply. This very fact, the BGH stated, must be taken into account by the trial judges when they decide the case.20 b. Standard of proof The possibilities of the trial judge to inquire the truth of the case influence the standard of proof. The question of standard of proof is addressed in Section 261 StPO: The court shall decide on the result of the evidence taken according to its free conviction gained from the hearing as a whole. In general a court convicts an accused, if the judges are convinced of the guilt of the accused to such an extent, that all rea-

17 18 19 20

BGH NJW 2004, 1261. BGH NJW 2004, 1261. 244 III 2 StPO. BGH NJW 2004, 1261.

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sonable doubts are silenced.21 One can apply the Anglo-American formula that the guilt must be proven beyond reasonable doubt. Only then the presumption of innocence is disproved.22 If, however, the judge was not in a position to establish all the significant facts, because he could not question a relevant witness, the very basis on which he is to base his conviction becomes slanted. He therefore (1) has to act very carefully and take into account that the hearing remained incomplete. The BGH calls this besonders vorsichtige Beweiswrdigung.23 In addition, the court might (2) have to apply the principle in dubio pro reo.24 (aa) Weighing of evidence In the judgement the BGH rejected the view, that in the case of non-disclosure of evidence by an official authority the fact that the accused seeks to establish by requesting the presentation of this evidence should be treated as if the alleged fact were true in accordance with Section 244 III 2 StPO.25 The focus on just this one piece of evidence is wrong. Rather the judge has to look at the evidence before him in its entirety. It can therefore well be, that other evidence is weighty enough to carry a verdict of guilt. However, the more the result of the evidence can be harmonised with the defence case, the closer the non-disclosed evidence comes to the conduct and the more it could therefore serve to clarify the facts of the case, the more the court had to buttress a guilty verdict. This is even more so, when the evidence just points indirectly at the guilt of the accused. This concept is what the BGH calls careful weighing of evidence.26

21 See Meyer-Goner, Strafprozessordnung (46th ed. 2003), 261 MN 2; Safferling, Towards an International Criminal Procedure (2003), 259-60. 22 The presumption of innocence is integral part of the German criminal procedural order according to Article 6 2 ECHR; the ECourtHR is reluctant to explicitly stating what the standard of proof needs to be. Nevertheless it has repeatedly stated, that any doubt should benefit the accused; see ECourtHR Barber v. Spain, Series A No. 146, para. 77; Ribitsch v. Austria, Serie A No. 336, para. 32; Avzar v. Turkey, Rep. 2001-VII, para. 283; compare Esser, Auf dem Weg zu einem europischen Strafverfahrensrecht, 742744. 23 24 25 26

Particularly careful weighing of evidence, BGH NJW 2004, 1261. The BGH uses the German term Zweifelssatz, see BGH NJW 2004, 1261. See BGH NJW 2004, 1262 with reference to dissenting views by several authors. BGH NJW 2004, 1262.

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The principle in dubio pro reo comes in as part of the careful weighing. The often misconceived concept of in dubio pro reo is explained by the BGH: it is not an evidence-rule but a principle pertaining to the decision-making ( der Zweifelsatz [ist] keine Beweis-, sondern eine Entscheidungsregel27). It comes into play after the weighing of evidence has taken place. If at that stage, the judge is not fully convinced of a fact that is relevant for the decision, he has to presume the fact that has the least impact on the accused.28 The in dubio-principle is therefore not applicable to isolated elements of the evidence, but only after the evidence has been scrutinised in its entirety. c. Fair trial Why is all of this important for a criminal trial? The accused has a right to defend himself. This is an undeniable essential feature of fairness and can be found in all of the human rights treaties.29 If the evidence that the accused wants to rely on in order to exonerate himself is withheld by executive authorities, the accused is trapped. The prosecutorial authorities are in an advanced position anyway. They have a powerful police and intelligence machinery at their service, whereas the defendant can rely only on a defence team. The inequalities as regards information can be dramatic.30 The more complex and international the case is, the more serious this slant can be. By virtue of the principle of equality of arms both parties are to be brought on the same or at least a similar footing.31 If then the accused is confronted with a charge by the authorities and the same executive power refrains to disclose exonerating evidence, the accused is left with nothing but his own word. 2. The standards applied to the case The standard elaborated above needs to be applied to the case of El Motassadeq. Looking at the facts one finds two points which might prove the suspicion that the accused was involved into the planning of the terrorist attack on 9/11: this is his trip to Afghanistan and the transferral of the money to an account of Binalshib. The
27 28

BGH NJW 2004, 1262.

See also Meyer-Goner, StPO, 261 MN 26 and Safferling, Towards an International Criminal Procedure, 260. Compare Article 6 3 d ECHR and Article 14 3 e ICCPR. See eg. Rzepka, Zur Fairne im deutschen Strafverfahren, 2000, 347, 455. See also Renzikowski, Festschrift fr Lampe (2003), 791, 802.

29 30 31

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accused himself denied any involvement with the planning. He refers to Binalshib as the witness who could exonerate him and explain Afghanistan and the money. His story cannot be discarded as being totally unlikely. To clarify the witness would have had to be heard. As this was impossible because of the refusal of the US and the German authorities to cooperate, the evidence presented against the accused could not be seen as strong enough to carry a conviction. The OLG must have taken into account that a testimony of Binalshib could have reinforced the case of the accused.32 The BGH points to another danger that might arise in particular in a criminal case, in the outcome of which a foreign nation has a major interest. In a case like the one here, German courts are active in some sort of vicarious jurisdiction also on behalf of the foreign nation. If in such a situation the alien nation would be allowed to selectively grant legal aid, it would be in a position to guide the outcome of the trial as it wishes. From a point of view of fairness of the proceedings this cannot be tolerated.33 IV. Failure or Strength The decision of the BGH is determined, maybe it can even be called an angry judgement. The resentment stems from the arrogance of intelligence services and governments both from the USA and Germany. Without the slightest sign of cooperation the trial runs the risk of becoming a travesty in evidence matters. The BGH felt the urge to establish a sign that German courts would not convict on rumours and mere suspicions. The standard of proof remains the same for shop-lifting as well as for alleged terrorists. The BGH resisted the attempt of governments to turn courts into obedient agents that would convict ad libido. The security interests of societies are high as the fear of terror grows. Terrorism is a threat to society as well as a challenge to any criminal justice system.34 Notwithstanding, a criminal trial must follow the rule of law. The secrecy of intelligence information might be necessary for preventive police activity and political decisions. To a criminal system of punishing an offender secrecy is foreign and poisonous. The fairness of a trial depends on publicity. It depends further on the equal opportunity of the accused to defend him/herself and call witnesses on his/her
32 33

See BGH NJW 2004, 1263. See BGH NJW 2004, 1262.

34 One example: the criminal justice system of Northern Ireland was changed and the jury abolished in 1978 because it was felt, that it was inapt to cope with terrorism; see Safferling, Towards an International Criminal Procedure (2003), 214.

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behalf. If the democratic courts would not carefully guard these principles, we would sooner or later all become dependent on the good will of the government instead of the rule of law. The consequence would be state terror. The BGH has in this regard in good tradition of European democratic courts not failed but strengthened the democratic legal system. It has proven to be a bulwark of liberty.35

35 This I say in analogy to Blackstones title for the English jury-courts, see Lidstone in Andrews (ed), Human Rights in Criminal Procedure: A Comparative Study (1982), 5.

SPECIAL ISSUE Slaughterhouse-Six: Updating the Law of War

By Ed Morgan

A. The Time and Place of the Law International law has come unstuck in time. It has gone to sleep stressing a normative future based on state obligations owed towards all the other members of the international community,1 and has awakened in a bygone world in which the state is susceptible of no limitation not imposed by itself.2 The opposing time zones seem now to exist in unison. Thus, for example, the European Court of Human Rights, in examining the impact of the Torture Convention, can split 9:8 on whether national self-interest trumps universal rules of cooperation, or the other way around.3 Likewise, Englands House of Lords can opine in the Pinochet case that, as between a reinvigorated national jurisdiction and the developing concept of universal one, international law is on the move.4 Nowhere is this temporal and normative see-saw more apparent than in the law of war. Generally speaking, the international community now regards the use of armed force to be circumscribed.5 When fully explained, however, this can be

Associate Professor, University of Toronto, Faculty of Law.

1 Prosecutor v. Furundzija, IT-95-17A-T (I.C.T.Y. 10 Dec. 1998), reprinted in 38 I.L.M. 317 (1999) (identifying emerging norms of jus cogens). 2 The Schooner Exchange v. MFaddon, 12 U.S. (7 Cranch) 116 (1812) (sovereign immunity in domestic courts). 3 Al-Adsani v. United Kingdom, 34 Eur. Ct. H.R. 29, (2001) judgment of 21 Nov. 2001 (ECHR); see Markus Rau, After Pinochet: Foreign Sovereign Immunity in Respect of Serious Human Rights Violations - The Decision of the European Court of Human Rights in the Al-Adsani Case, 3 GERMAN L. J. No. 6 (1 June 2002), at http://www.germanlawjournal.com/article.php?id=160. 4 5

Ex parte Pinochet Ugarte (No. 3), [1999] 2 All E.R. 97, 188 (per Lord Phillips, concurring).

But see, W.Michael Reisman, Coercion and Self-Determination: Construing Article 2(4), 78 AM. J. INTL. L. 642 (1984) (A sine qua non for any action coercive or otherwise I submit, is the maintenance of minimum order in a precarious international system.); See also, National Security Strategy of the United States, http://www.whitehouse.gov/nsc/nss.html (We will defend the peace by fighting terrorists and tyrants);cf. Erahim Afsah, Creed, Cabal, or Conspiracy The Origins of the current Neo-Conservative Revolution in US Strategic Thinking, 4 GERMAN L. J. No. 9, 901-923 (1 September 2003), at

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posed as a product of state consent i.e. a treaty rule under the U.N. Charter or a crystallized emergent rule of international custom,6 or, alternatively, as a matter for which no consent is required i.e. a fundamental principle or a conspicuous example of a rule in international law having the character of jus cogens.7 Likewise, the use of force in self-defense is subject to great rhetorical fluctuation. It can enter a debate premised on the strict reading of article 51 of the U.N. Charter or the G.A. Resolution on Friendly Relations,8 and exit the conversation as an inherent or natural right to liberate oneself that predates and swallows up any single instrument.9 It is all new and old, tentative and foundational, anti-war and pro-defense, non-violent and highly coercive; the law has become, in the words of Kurt Vonnegut, a trafficker in climaxes and thrills and characterization.10 The novel for which this paper is named contains a number of themes that are surprisingly relevant to the international law of war. In the first place, of course, Vonneguts Slaughterhouse-Five is a 1960s anti-war themed war story, drawing on the authors own experiences during the Second World War11 and the American experience of the then ongoing war in Vietnam and its related social turmoil.12 Like the literature on warfare under Article 2(4) of the U.N. Charter,13 Vonnegut is
http://www.germanlawjournal.com/pdf/Vol04No09/PDF_Vol_04_No_09_901-923_SI_Afsah.pdf.
6 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), 1986 I.C.J. 14, 177, 183-185 (taking U.N. Charter article 2(4) into account in identifying newly emergent custom prohibiting armed force). 7

International Law Commission, Codification of the Law of Treaties, 2 Y.B. Intl.L.Comm. 247 (1966).

8 Declaration Concerning Friendly Relations Among States, G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, U.N. Doc. A/8028r, (1970). 9 Nicaragua Case, supra note 6 193 (the inherent right (or droit naturel) which any State possesses in the event of an armed attack, covers both collective and individual self-defence.). 1 Blackstones Commentaries 125 (defining natural liberty as [t]he right which nature gives to all mankind, on condition of their acting within the limits of the law of nature, and so as not to interfere with an equal exercise of the same rights by other men.). 10

K. VONNEGUT, JR., SLAUGHTERHOUSE-FIVE 5 (New York 1969).

11 H. Bloom, Introduction to KURT VONNEGUT 1 (H. Bloom ed., Chelsea, 2000) (On 19 December 1944, Kurt Vonnegut was captured by the Germans during the Battle of the Bulge; he was twenty-two years old. Sent to Dresden, he survived the firebombing of the city on February 13-14, 1945, in which 135,000 Germans were killed. That is the biographical context (in part) for the novel, SLAUGHTERHOUSE-FIVE, or THE CHILDRENS CRUSADE (1969)).

J. Klinkowitz, Kurt Vonnegut: Public Spokesman, in THE VONNEGUT CHRONICLES: INTERVIEWS AND ESSAYS 70 (P.J. Reed & M. Leeds eds., Westport 1996) ([T]he Dresden bombing is related in its victimization to bombings in Cambodia, Vietnam).
12 13

See, e.g., T. Franck, Who Killed Article 2(4)?, 64 AM J. INTL L. 809 (1970).

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aware of the unenforceability of his cause. Indeed, the futility of regulating armed force is portrayed as cynically by Vonnegut as by any of international laws critics.14 In the books introduction one character quips to the author Why dont you write an anti-glacier book instead?15 More to the point is the fact that the novel presents an erratic and disjointed narrative providing Vonnegut with a chance to escape the limits of chronology.16 This technique will be compared with international laws tendency to mix and match its governing norms to its desired results, producing an ahistorical sense of doctrinal confusion.17 Moreover, Slaughterhouse-Five is characterized by the frequent intrusions of an authorial voice, at times Vonneguts own and at other times one of his fictionalized alter-egos, all in an effort to get at other topics that may lay beyond the compass of his setting.18 This technique will then be compared with international laws tendency to defy objectivity, and its attempt to build a system of law out of the aggregated and subjective actions of the state parts that the system must govern.19 Finally, Vonneguts writing embodies an unusual combination of realism and fantasy, or fatalism and hopefulness; accordingly, his despair is balanced by an optimistic faith in the possibility of renewal.20 This overall character will be juxtaposed with that of international legal discourse, which similarly despairs in the reality of being law improperly so called21 while it constantly renews its fantasy of finding trustworthy evidence of what the law really is.22 The international law laboratories in which this combination of disciplines and
14 L. Henkin, The Reports of the Death of Article 2(4) are Greatly Exaggerated, 65 AM. J. INTL L. 544 (1971) (describing Thomas Franck as pathologist for the ills of the international body politic). 15 16

VONNEGUT, supra note 10, at 3. P. Freese, Vonneguts Invented Religions as Sense-Making Systems, in Reed & Leeds, supra note 12, at 155.

17 Libman v. The Queen, 1985 2 S.C.R. 178, 17 (Historically, English courts considering international law have taken different stances at different times and the general result, as several writers have stated, is one of doctrinal confusion). 18

P.J. Reed, Writer as Character: Kilgore Trout, in Bloom, supra note 11, at 111.

19 See, e.g., Austro-German Customs Regime Case (Advisory Opinion), 1931 P.C.I.J. No. 41, 4, 12 (Treaty [of Saint-Germain] imposed upon Austria, who in principle has sovereign control over her own independence, escept with the consent of the council of the League of Nations.). 20 21

L.R. Broer, Images of the Shaman in the Works of Kurt Vonnegut, in Bloom, supra note 11, at 102.

Austin, The Province of Jurisprudence Determined, reprinted in HENKIN, ET AL., INTERNATIONAL LAW 11 (West 1980). The Paquete Habana, 175 U.S. 677, 700 (1900).

22

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themes will be tested are the various conflicts in the Middle East. In particular, the paper explores the legal debate over two violent struggles: the U.S.- Iraq war in the spring of 2003, and the Palestinian-Israeli confrontation that began in the fall of 2000. For present purposes, the discussion will center on two international instruments which set out legal parameters for each of these two battlegrounds: Security Council Resolution 1441 pertaining to Iraq,23 and Resolution 2002/8 of the U.N. High Commission for Human Rights pertaining to Palestine.24 These resolutions, adopted by two arms of the United Nations within seven months of each other, seem to move the law of war in opposite directions i.e. respectively toward and away from institutional control. In doing so, they are both riddled with interpretive enigmas. The Security Council Resolution, which, inter alia, put Iraq on notice of a potential armed attack, spawned debate over the language of material breach,25 final opportunity,26 and serious consequences.27 For its part, the UNCHR Resolution, which, inter alia, confirmed the right of Palestinians to seek selfdetermination, engendered a substantial dispute around the phrase by any available means.28 The fundamental question of interpretation is whether the international law of war is now characterized by one pronouncement that authorizes only the most formal, institutionalized battles, and another that authorizes the most informal, unregulated attacks.29 Having set the seemingly opposing resolutions in motion, can the world community guide the laws apparently contradictory impulses, or are the
23 24 25 26

SCOR Res. 1441, U.N. SCOR., 57th Sess., S/Res/1441 (2002). UNCHR Res. 2002/8, U.N. CHR, 58th Sess., 39th meeting, (2002). Id., article 1 (Decides that Iraq has been and remains in material breach ). Id., article 2 (Decides to afford Iraq, by this resolution, a final opportunity to comply ).

27 Id., article 13 (Recalls that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations). 28

E/CN.4/2002/L.16, U.N. CHR, 58th Sess., Comm. on H.R. Agenda Item 8, (draft of 9 April 2002) (Affirms the legitimate right of the Palestinian people to resist the Israeli occupation by any available means ).

29 For a review of the arguments on either side of the international law debate, see A. Ehlert, Between Empire and Community: the United States and Multilateralism 2001-2003, 21 BERKLEY J. INT.L L. 721 (2003); R. Falk, Rediscovering International Law After September 11th, 16 TEMP. INT. & COMP. L. J. 359 (2002); H. Hannum, Iraq, U.S. and the War on Terror: Bellum Americanum, 27 FLETCHER J. WORLD AFF. 29 (2003); Craig Scott, Iraq and the Serious Consequences of Word Games: Language, Violence and Responsibility in the Security Council, 3 GERMAN L. J. No. 11 (1 November 2002), at http://www.germanlawjournal.com/ article.php?id=209. For a constitutional law analysis of the U.S. use of military force in Iraq, see Report: the Legality and Constitutionality of the Presidents Authority to Initiate an Invasion of Iraq, 41 COLUM. J. TRANSNATL L.15 (2002).

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competing doctrines like so many Vonnegut characters, of whom Vonnegut himself has said that he could only guide their movements approximately, since they were such big animals. There was inertia to overcome.30 As international lawyers update the law of war to the latest conflicts, can the meaning of its rules be sufficiently fixed in time and space to play the role in world affairs that has come to be expected of it?31 B. The Non-Linear History of International Law It is an understatement to say that, in the months preceding the U.S.-led invasion of Iraq, the meaning of Resolution 1441 was subject to debate. The prior negotiations over the wording of this Resolution had stretched for seven weeks through October and November of 2002. At the time, the United States, Britain, and Spain envisioned the statement about Iraqi disarmament as the final one before enforcement by way of military intervention,32 harking back to the call for complete disclosure and dismantling of all Iraqi weapons of mass destruction contained in the resolutions passed at the conclusion of the first Persian Gulf War.33 France, Germany, and Russia, on the other hand, envisioned that the Security Council would remain seized of the matter of assessing any Iraqi breach and authorizing further action.34 The resulting language, as commentators have noted, was a resolution that papered over, but did not resolve, the fundamental difference in postures.35 The question for international lawyers was to determine what constituted compliance with the resolutions terms and what constituted a breach. The regime in Iraq had embarked on a campaign of positive internationalism in advance of the Security Council debates on the question, establishing a political environment which blended state self-interest with multilateral cooperation. Thus, in March 2002, Iraq was an active participant in the Arab League summit in Beirut, and there an30

K. VONNEGUT, JR., BREAKFAST OF CHAMPIONS 202 (New York 1973).

31 On the relationship between international law and other modes of analysis of international relationships and defense policy, see T. Graham, Jr., Is International Law Relevant to Arms Control: National SelfDefense, International Law, and Weapons of Mass Destruction, 4 CHI. J. INTL L. 1 (2003). 32 33

Senate Approves Iraq War Resolution, 11 October 2002, at CNN.com.

SCOR Res. 687, U.N. SCOR, 2981st meeting, April 1991 (requiring Iraq to "unconditionally accept the destruction, removal or rendering harmless" of its chemical, biological, and nuclear weapons programs). J. Leicester, France, Russia Vow No Iraq War Approval, Miami Herald, March 5, 2003, available at Herald.com; France, Germany, Russia to Nix War Vote, ABC News, March 5, 2003, available at ABCNEWS.com

34

35

F. Kaplan, Resolution Dissolution: How the U.S. and France Botched U.N. Resolution 1441, Slate, March 6, 2003, at http://slate.msn.com/id/2079746/.

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nounced for the first time a recognition of the sovereignty of Kuwait.36 This was followed by a reopening of the IraqSaudi Arabia border and the signing of a free trade agreement between the two countries,37 and the negotiation of generous oil and other economic concessions to the more needy states of the region.38 While Baghdad was clearly out to protect its independence of action, it was equally out to demonstrate its mastery of the international circuit.39 More importantly, Iraqs level of compliance with the specific terms of Resolution 1441 itself could ambiguously straddle these two themes. As critics have noted, the failure [of the Resolution] to sketch out so much as an outline of the disarmament process effectively allowed Saddam Hussein to manipulate, even to control, the Security Councils deliberations.40 In other words, Iraq could be fully cooperative with the governing norms of international conduct, protecting its sovereignty while simultaneously bowing to Security Council superiority, and could accomplish this task by throw[ing] the council a few crumbs of compliance the destruction of a few missiles, the handover of a few documents, the issuance of a new decree well within the provisions of 1441.41 Accordingly, the United States and other supporters of the resolution could argue with credibility that the governing international norm defined Iraqs minimal, if strategic disclosures as a breach,42 while Iraq and other supporters of its sovereignty could argue with credibility that the governing international norm defined its minimal, if strategic disclosures as compliance. 43 The Iraqi government, it will
36

LIrak se rconcile avec le Kowet et cherche des protections face la menace amicaine, LE MONDE, 30 March 2002. Economist Intelligence Unit, Country Report: Saudi Arabia, 3 (November 2002). Trade Volume to be Increased to $310m by 2003, Jordan Times, November 22-23, 2002.

37 38

39 International Crisis Group, Voices from the Iraqi Street, Iraq Briefing, 3 (4 December 2002) (The efficacy of this kind of [pre-war Iraqi] diplomacy is debatable. What is less so is that it demonstrates Baghdads determination to avoid a confrontation that it knows may be its last.). 40 41 42

Kaplan, supra note 35. Id.

U.S. DEPARTMENT OF STATE, OFFICE OF THE SPOKESMAN, IRAQ ARMS DECLARATION HAS GAPS, OMISSIONS, POWELL CHARGES, (18 December 2002) at: http://www.usembassy.it/file2002_12/alia/a2121801.htm (last visited: 27 April 2004). ("Iraq was given an opportunity in UN Resolution 1441 to cooperate with the international community, to stop deceiving the world with respect to its weapons of mass destructionWe are not encouraged that they have gotten the message or will cooperate based on what we have seen so far in the declaration).
43

Iraq Statement by Fr.-F.R.G.-Russ., Spcial France-Diplomatie: Irak, (5 March 2003), at: http://special.diplomatie.gouv.fr/article69.html (last visited: 30 January 2004) (The destruction of the

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be recalled, provided enough details and diversions to keep scores of U.S. intelligence analysts busy for days and weeks, scouring for telltale signs of what has been left out.44 The standoff on this issue provided not only a high point of political gamesmanship,45 but served as a testing ground for international laws current definitions of state conduct. To trace the course of those definitions, one might start with the post-War eras first controversy over weapons of mass destruction i.e. the 1950s through 1970s debate over atmospheric nuclear testing and the Nuclear Test Ban Treaty.46 The International Court of Justice (ICJ) first turned its mind to the issue when France, which had not signed the multilateral treaty, issued a series of presidential proclamations to the effect that it would abide by the conventions terms by shifting from atmospheric to underground testing of all nuclear devices.47 When France later reneged on this commitment an action was brought by Australia and New Zealand, the two nearest neighbors to the French Polynesian atolls where the tests were conducted, asserting that the unilateral declarations were binding commitments that carried with them the force of law.48 In a landmark judgment, the ICJ opined that the purposefulness of the comments by the French head of state confer[ed] on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration.49 The remarkable thing about the judgment is
Al-Samoud missiles has started and is making progress; the Iraqis are providing biological and chemical information; the interviews with Iraqi scientists are continuing.).
44

H. Witt, Iraq Disclosure Allows Hussein, Bush to Play for Time, CHICAGO TRIBUNE, 7 December 2002, at: http//www.macon.com/mld/macon/news/politics/4690146.htm (last visited: 27 April 2004).

Saddam Husseins Games: Interview with Foreign Secretary, Jack Straw SKY NEWS, Wednesday, 2 October 2002, at http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket Xcelerate/ShowPage&c=Page&cid=1007029391629&a=KArticle&aid=1033555897233 (last visited: 27 April 2004).Xcelerate/ShowPage&c=Page&cid=1007029391629&a=KArticle&aid=1033555897233.
45 46 Partial Test Ban Treaty, 1963, 480 U.N.T.S. 43; 1964 U.K.T.S. 3 (1964), in force 1963. For a history of the controversy over atmospheric nuclear testing by the United States in the area of Eniwetok Atoll in U.S. administered Trust Territory, which led to the initial discussions of a treaty to ban such testing, see 4 White 553 et seq. See also, Resolution on Nuclear Tests on the High Seas, SEA CONFERENCE RECORDS, vol. II, p. 24, 101 (1958) (referring the question of nuclear tests to the General Assembly for appropriate action).

Office of the President of the French Republic, (8 June 1974), reprinted in D.J. HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW 775 (5th ed., London 1998).
47 48 49

Nuclear Test (Australia v. France; New Zealand v. France), 1974 I.C.J. Rep. 253. Id. at para. 43.

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not that Australia and New Zealand won their claim; they could have rested on the familiar argument that by the 1970s the ban on sending up radioactive clouds was, although enshrined in a treaty, a crystallized custom to which all states, including France, were universally bound.50 Alternatively, they could have attempted to construe the French presidential statements as a form of oral contract which, while falling short of the formal terms required under the Vienna Convention on the Law of Treaties,51 nevertheless has legal force52 and creates obligations capable of being recognized and enforced by international tribunals.53 Either of these footings would have resolved the dispute on traditional lines emphasizing the sovereignty of states in creating classic forms of legal obligations and imposing them on themselves.54 What is noteworthy about the Nuclear Test Case is that the ICJ went out of its way to state that international law, like Vonneguts Billy Pilgrim, lives in the future every bit as much as it lives in the present and the past. Indeed, legal doctrine was seen by the court as being a sort of pilgrim, actively seeking out its own understanding of the relevant norms of conduct. In formal terms, the case held that a properly manifested intention on the part of a state especially where such intentions are addressed to the international community as a whole55 can in the right circumstances confer the character of a legal undertaking.56 The court was not how50 North Sea Continental Shelf (Germany v. Denmark; Germany v. Netherlands), 1969 I.C.J. Rep. 3, para. 72 (the Geneva Convention has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinion juris). 51 Vienna Convention on the Law of Treaties, 1969, 1155 U.N.T.S. 331; 8 I.L.M. 679 (1969); 63 A.J.I.L. 875 (1969), produced by the U.N.Conference on the Law of Treaties, pursuant to G.A. Resolutions 2166 (XXI) of 5 December 1966 and 2287 (XXII) of 6 December 1967. 52 See International Law Commission Draft Articles, 1966, 2 Y.B.I.L.C. 10 (The restriction of the use of the term treaty in the draft articles to international agreements expressed in writing is not intended to deny the legal force of oral agreements under international law). 53 Legal Status of Eastern Greenland (Denmark v. Norway), 1933 P.C.I.J. Rep., Series A/B, No. 53 (Norwegian Foreign Ministers declaration of lack of interest in Greenland taken as enforceable agreement as to Danish sovereignty). 54 G. Fitzmaurice, The Foundations of the Authority of International Law and the Problem of Enforcement, 19 MOD. L. REV. 1 (1956) (The real foundation of the authority of international law resides similarly in the fact that the States making up the international society recognize it as binding upon them). Lotus (France v. Turkey), 1927 P.C.I.J. Rep. Series A, No. 10 (The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law). 55 56

Nuclear Test, supra note 49, at para 51. Id. at para 43.

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ever, content to remain at the level of articulating new doctrinal developments, but rather dug underneath the novel ruling to explore the policy underpinnings of the international law of obligations. Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith,57 the court opined, so also is the binding character of an international obligation assumed by unilateral declaration.58 In unearthing the foundational principle underlying the international rule of obligations, the ICJ pronounced a brand new point that was identical to one it had already pronounced a decade earlier. In the early 1950s, Frances powers of taxation and customs enforcement in its colonial administration of Morocco were said by the Court to represent a power which must be exercised reasonably and in good faith.59 This novel proposition of the 1950s, in turn, reflected the International Law Commissions conclusion of the 1940s, where it held that, [e]very State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law60 Moreover, the I.L.C.s supposedly new point echoed arbitral awards rendered in contests brought by the United States against Guatemala in the 1930s61 and by Norway against the United States in the 1920s.62 Indeed, the same point can be found in nineteenth century reports of the State Department, in which the prohibition on setting up domestic laws as a defense against international legal compliance was characterized as a requirement of the good faith demands for the fulfillment of international duties.63 The development of this basic legal principle, in other words, has been distinctly non-linear. It starts at its own end point and then, like one of Vonneguts living

57 On the principle of pacta sunt servanda see generally Chorzow Factory (Jusridiction), [1927] P.C.I.J., Ser. A, No. 9, p. 21 (pacta defined as a principle of international law that the breach of an [international] engagement involves an obligation to make reparation in an adequate form.). See also the International Law Commissions Commentary on Article 2(2) of the U.N. Charter (good faith obligations), [1966] 2 Ybk. I.L.C. 211 (the principle of good faith is a legal principle which forms an integral part of the rule pacta sunt servanda.). 58

Nuclear Test, supra note 49, at para 46.

59 Case Concerning Rights of Nationals of the United States of America in Morocco (France v. U.S.), 1952 I.C.J. Rep. 176. 60

ET AL., INTERNATIONAL LAW

61 62 63

International Law Commission, Declaration of Rights and Duties of States (1949), article 13, in HENKIN, 114 (St. Paul 1982).

See Shufeldt Claim (U.S. v. Guatemala), [1930], 2 U.N. Rep. Int. Arb. Awards 1079. See Norwegian Shipowners Claims (Norway v. U.S.), [1922] 1 U.N. Rep. Int. Arb. Awards 307. Statement of Secretary of State Bayard, [1887] U.S. Foreign Rel. 751-753.

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comets, appears periodically as its orbit demands.64 Despite this methodology of repetition, the court in the Nuclear Test Case went out of its way to assert that, this time around, matters of good faith and international obligations have come to a decisive point. Trust and confidence, the majority judgment inveighed, are inherent in international cooperation, in particular in an age when this cooperation in many fields is becoming increasingly essential.65 Ironically, the ICJ portrayed international doctrine as finally having come of age in 1974 in almost the same language that Chief Justice John Marshall employed to make the point in 1812. In the U.S. Supreme Courts seminal sovereign immunity case, international law was said to have finally moved from the perfect equality and absolute independence of sovereigns. to a common interest impelling them to mutual intercourse.66 Like Vonneguts Pilgrim, international legal doctrine seems able to live and re-live its entire lifespan at any given moment. The notion of progress, for Vonnegut, moves both forward and backward in time. The middle aged Billy Pilgrim, at home in his Indiana basement, re-lives the lonely soldier of his youth, stranded as a captive in wartime Germany together with hostile fellow soldiers, and at the same time experiences a future captivity on the planet Tralfamador together with a Hollywood starlet who has been brought there to be his mate. Superficially, the combined convention of historical fiction and futuristic fantasy provides Vonnegut with his usual series of narcissistic giggles;67 but at a more sardonic level, it provides a platform for a particularly black brand of humor. Indeed, it is through the black humor of the narrative that linear development is turned on its head. In illustration of the point, the crucifix given to Billy by his mother is said to provide him with a vehicle for contemplat[ing] torture and hideous wounds at the beginning and the end of nearly every day of his childhood.68 In other words, Billy is a pilgrim with no sense of progress or mission. As Vonnegut explains it, black humor is both the medium and the message of progress moving in reverse. Freud gives an example: a man being led out to be hanged at dawn says, Well, the day is certainly starting well.69
64

K. VONNEGUT, JR., SIRENS OF TITAN (New York 1977) (scientist crashes space ship and becomes an orbiting telegraphic being, landing on Earth once every 59 days). Nuclear Test Case, supra note 48, 46. The Schooner Exchange v. McFaddon, supra note 2.

65 66

67 K. VONNEGUT, WELCOME TO THE MONKEY HOUSE xvi (New York1998), (quoting a New Yorker magazine review of God Bless You Mr. Rosewater). See also VONNEGUT supra note 10, at 19, where the book is described by Vonnegut himself as short and jumbled and jangled. 68 69

VONNEGUT supra note 10, at 38. Quoted in W.R. ALLEN, CONVERSATIONS WITH KURT VONNEGUT 56 (Jackson 1988).

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Ask an international lawyer the direction of progress, and she will doubtless respond as the ICJ has responded: the law is progressive when it moves from sovereignty to cooperation, from the forceful self-help of individual nations to a peaceful, interconnected world.70 Ask a Tralfamadorian, as Billy does, how can a planet live at peace? knowing that the world will be destroyed in a future experiment with new fuels, and he will answer that the future, past, and present, are simultaneous states of affairs. The moment is structured that way, Vonneguts aliens explain.71 The fantasy and the ICJ, it turns out, share a remarkable combination of features. Both envision a peaceful present and an apocalyptic future, and both are able to reverse the imagery to envision an aggressive history and a passive conclusion. Likewise, both texts describe a self-interested race of aliens that are at the same time part of an interconnected world of peoples. Vonnegut and the ICJ both portray the world as a slaughterhouse and as an idyllic planet, and both see history culminating with the case of a Nuclear Test. In science fiction and in legal science, progress moves both forward and backward. Returning to Iraq and the Resolution 1441 debate, the non-linear movement of international law is best illustrated by the work of U.S. National Security Advisor Condoleeza Rice. Writing some two months before the start of the war,72 Rice contrasted the Iraqi government and its approach to weapons inspections and disarmament with the cooperative approach evidenced by the governments of South Africa, Ukraine, and Khazakhstan. Unlike those countries, which exhibited a high level of political commitment to disarm, national initiatives to dismantle weapons programs, and full cooperation and transparency,73 Iraq demonstrated a tendency to stand on its rights in the face of U.N. inspections. Thus, for example, Rice accused the Iraqis of denying full overflight privileges for aerial inspections, insisting that government security personnel accompany scientists in interviews, describing the destruction of all VX nerve agents but providing no documentary proof, displaying shells that could potentially hold chemical warheads but revealing no actual chemicals, etc. In all, Rice contended, instead of full cooperation and transparency, Iraq demonstrated a high level political commitment to the status quo ante.74
70 W.M. Reisman, supra note 5 (describing the movement from the pre-U.N. Charter to the post-U.N. Charter law governing the use of force). 71

VONNEGUT, supra note 10, at 117.

72 C. Rice, Why We Know Iraq is Lying, NEW YORK TIMES, 23 January 2003, at www. whitehouse/releases/2003/01/20030123-1.html. 73 74

Id.

Id. (placing the political stalemate on the shoulders of Saddam Hussein and his son Qusay, who controls the Special Security Organization).

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Interestingly, much of what Rice takes aim at is the Iraqi governments legalistic defense.75 In this view, while todays cooperative players in the community of nations lead inspectors to weapons and production sites, answer questions before they are asked, state publicly and often the intention to disarm;76 Iraq, by contrast, exhibits a classical sovereigntist attitude by insisting on its right to remain silent.77 In other words, the United States the very personification of the argument for unilateral self-help toward disarming and deposing Saddam argued strenuously for a cooperative, multilateralist approach toward disclosure and nonproliferation. At the same time, Iraqs defenders the very embodiment of internationalism and the dominance of multilateral institutions over the individual state78 argued strenuously for the right of the state to insist on its privacy and the noninterference of the broader community of nations.79 In the Resolution 1441 debate, therefore, the cooperative position became retrogressive while the sovereigntist position became progressive. The non-linear development of legal norms allows for anything to happen, and for any argument to surface, at any given time. The United States discovered good faith and cooperation much as it has been discovered every decade for at least a century; likewise, Iraq discovered the defense of sovereignty much as it has been discovered since the dawn of international law. The reversed history, then, gave way to an inversed normative thrust in the positions taken by Rice and her adversaries. The answer to the ahistorical, counterintuitive law, of course, lies on Tralfamador. The moment, the aliens would doubtless explain to any pilgrim in search of legal knowledge, is structured that way.

75

Id. Allegations of fraudulent conduct also form a fundamental part of the Rice complaint: Iraq has filed a false declaration to the United Nations which amounts to a 12,200 page lie. Id.

76

77 Norwegian Loans Case (France v. Norway), 1957 I.C.J. 9 (no obligation to answer an international claim or accusation except upon the determination by the Government accepting the Optional Clause). 78 See, e.g., France: Give U.N. Weapons Inspectors Data, NEW YORK TIMES, 8 January 2003, at www.truthout.org/docs_02/011003B.fr.data.htm (France asked Security Council members Wednesday to deliver specific information about Iraqi weapons programs to U.N. inspectors a request aimed at the United States and Britain who claim they have evidence of clandestine Iraqi programs.). 79 TEHRAN TIMES, 27 January 2003 (Only the people of Iraq have the right to determine their future and decide what kind of government they want.), at www.worldpress.org/Mideast/918.cfm.

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C. The Laws Authorial Voice The war in Iraq and the conflict between the Palestinians and Israel share the fact of violent engagement, but the two theaters seem to move in opposite political directions. To put the matter simply, while the former gave rise to a newborn occupation the latter struggles against an aging one.80 The legal instruments addressing the use of force in these two confrontations are likewise mirror images of each other. It is commonplace to note that article 2(4) of the U.N. Charter mandates pacifism as the governing international ethic, all else being equal.81 This theme finds a place of prominence in the resolutions directed at the Israel-Palestine conflict meted out by international institutions,82 the primary focus of which is on Israels use of force. As a potential qualifier on article 2(4), the possibility has been mooted that there is a place in international legal discourse for military operations in cases of humanitarian83 or human rights84 concern. It is the extended debate over the use of force by Palestinians in their quest for self-determination,85 however, that has most prominently tested the boundaries of official pacifism. The central legal question of the Middle East conflict now asks whether the occupation of territory designated for self-government by the civilian population residing there justifies an armed attack on the occupier. Like Vonnegut in third person, Vonnegut in first person, and Kilgour Trout as the writer within the writer of Vonneguts science fiction, the laws interpretive debates often display a fractured authorial persona. That is, the discourse over occupation
80 For a review of the U.S. and U.K.led occupation of Iraq from the perspective of the Arab world, see Iraq Under Occupation, ALJAZEERA, at http://english.aljazeera.net/NR/exeres/8245212D-39CC-4E6E80FF-2E1F29F72BC5.htm. For the view from the U.S. government, see, Iraq: Security, U.S. Department of State, International Information Programs, at http://usinfo.state.gov/mena/middle_east _north_africa/iraq/iraq_security.html. 81 U.N. CHARTER art. 2, para. 4, (All members shall refrain in their international relations from the threat or use of force); See I. BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 275 (1963), (prohibition on force is centerpiece of law of the U.N. Charter). 82 For a list of 65 Security Council resolutions condemning Israeli actions in the occupied territories from the 1950s to the 1990s, see A List of United Nations Resolutions, MIDDLE EAST NEWS AND WORLD REPORT, at http://www.middleeastnews.com/unresolutionslist.html.

Responsibility to Protect, THE REPORT OF THE INTERNATIONAL COMMISSION ON INTERVENTION AND STATE SOVEREIGNTY, at http://www.dfait-maeci.gc.ca/iciss-ciise/report2-en.asp.
83 84 85

A. DAmato, Nicaragua and International Law: the Academic and the Real, 79 AM. J. INTL L. 657 (1985).

On the acceptance of Palestinians as a self-determination unit, see G.A. Res. ES-7/2, U.N. GAOR, 7th Emergency Sess., Supp. No. 1, at 3 (1980).

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and self-determination entails more than just disagreement over legal rights and wrongs; it reads as if the law speaks in alternatively objective and multiply subjective voices. Thus, for example, Moroccos occupation of Western Saharan territory can be any number of things at once: the benign factual background against which a United Nations-mandated referendum for self-determination takes place,86 the singular illegal impediment to self-governance by the indigenous population,87 and the legally sanctioned vehicle for liberation of Africas last colony.88 The law appears in much the same way as Vonnegut and his protagonist, Jonah, do in Cats Cradle,89 as author of the book and as author of a book within the book, both of whom are swallowed by the whale of an over-manipulated narrative containing hundreds of subtitles, caveats, and explanations. It is no exaggeration to say that the UNHRC resolution on Palestine in April 2002 contained language designed to disguise an explosive debate. The session of the U.N. Human Rights Commission took place in the immediate wake of the fighting between Israelis and Palestinians in the refugee camp outside the West Bank town of Jenin,90 which itself followed closely on the heels of the Passover bombing of the Park Hotel in Netanya in culmination of a string of violent events over the previous several months.91 The first draft of Resolution 2002/8 expressly endorsed the use of

86 See Secretary-Generals Report, S/22464 (1991); U.N. SCOR at 690, 29 April 1991 (establishing a United Nations Mission for the Referendum in Western Sahara - MINURSO). 87 See Algiers Agreement, 5 August 1979 (Republic of Mauritania and Frente POLISARIO), at www.wsahara.net/algiers.html. 88 See Declaration of Principles on Western Sahara by Spain, Morocco, and Mauritania (Madrid Agreement), 14 November 1975, at www.wsahara.net/maccords.html (Spain will proceed forthwith to institute a temporary administration in the Territory, in which Morocco and Mauritania will participate in collaboration with the Djamaa (assembly of Saharawi notables)). 89 90

KURT VONNEGUT, CATS CRADLE (New York 1967).

For a description of the Jenin fighting, see Sharon Vows to Fight On, BBC NEWS, 10 April 2002, at http://news.bbc.co.uk/1/hi/world/middle_east/1918861/stm; For political background, see, Palestinian Support for Suicide Bombers, BBC NEWS, 28 June 2002, at http://news.bbc.co.uk/1/hi/ world/middle_east/2072851.stm; see also The Battle of Jenin, TIME, at http://www.time.com/ 2002/jenin/story.html; and for a brief legal analysis of the battle see Law in the Fog of War, TIME, at http://www.time.com/2002/jenin/viewpoint.html. For a summary of the indictment against several individuals accused of sending the suicide bomber, Abed Al Basat Uda, to his mission, see, Indictment against terrorist involved in the terror attack at the Park Hotel in Netanya, ISRAEL MINISTRY OF FOREIGN AFFAIRS, 3 July 2002, at www.mfa.gov.il/
91

MFA/Government/Communiques/2002/Indictment%20against%20terrorist%20involved%20in%20the %20terro.

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force by Palestinians,92 while the final draft was intentionally ambiguous. As enacted, the resolution edited out the crucial phrase by all available means that was taken to have sanctioned violence, but then inserted a reference to a previous General Assembly declaration in which armed force in pursuit of self-determination was authorized in virtually identical language.93 The interpretative debate that ensued was politically divisive. The change in wording between first and final drafts prompted Syria, Saudi Arabia, and other members of the Arab League to withdraw their sponsorship (but not their vote in favor) of the resolution as insufficiently supporting armed resistance. The identical change in wording prompted Spain, Ireland, and other members of the European Union to lend the resolution their support as properly condemning human rights violations.94 The Israelis and the Palestinians stressed, respectively, the veiled presence and the distinct absence of a reference to armed resistance. Ultimately, however, they seem to have come to an ironic agreement about the resolutions meaning. During the course of the debate on the language of the document, the Israeli representative at the UNHRC opined that, [t]he resolution legitimizes Palestinian aggression even with the removal of four words.95 For his part, the representative of Palestine at the debate chaffed at the suggestion that the wording had been manipulated;96 however, seven months later he invoked the very principle that the Israelis had been contending was implicit in the resolution. In the wake of an attack by Palestinians on Israelis in the town of Hebron, Nabil Ramlawi, the permanent observer for Palestine at the U.N., wrote to he UNHRC reminding the members that the General Assembly and the Commission itself had authorized [a]ll the forms of
92

Draft resolution of 9 April 2002, supra note 25.

93 The final version of Resolution 2002/8 provides: Recalling particularly General Assembly resolution 37/43 of 3 December 1982 reaffirming the legitimacy of the struggle of peoples against foreign occupation. For the specific General Assembly reference, see G.A. Res. 37/43, 3 December 1982, at http://domino.un.org/UNISPAL.NSF/0/bac85a78081380 fb852560d90050dc5f?OpenDocument (Reaffirms the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, including armed struggle.) (emphasis added). 94 K. Ramsay, reporter, The International Movement Against All forms of Discrimination and Racism (IMADR), Commission on Human Rights, 58th Sess., 12 April 2002 (voting on items 6 and 8, debate on Items II on the Questions of Civil and Political Rights). 95 96

Id. at 4.

Id. (The resolution focuses on violations over the last year, and some refer to the current situation. It is not a political manipulation.)

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violence and the legitimate resistance of the Palestinian people against the Israeli military occupation of their territory.97 The debate over armed resistance to foreign occupation is, first and foremost, a debate about the meaning and reach of the principle of self-determination.98 The principle has been declared by the ICJ to be a legal right with erga omnes character,99 and has even been debated as a possible rule of jus cogens;100 nevertheless, there is still doubt as to the precise meaning of the term. There is, of course, an emergent consensus as to what self-determination does not mean, in that it includes situations of oppressive non-self-rule and excludes the non-oppressive variety.101 As Vonnegut would say, legal rules, like artists, should be treasured as alarm systems.102 Beyond that, however, there is little agreement as to what the much-used phrase does mean. Billy Pilgrim, an optometrist by trade, is the vehicle through which Vonnegut must get the reader [to] see a deep, surprising, and beautiful image of life.103 To achieve such vision arising from the legal principle of selfdetermination is almost as unlikely as perceiving rational argument arising from the violence of war recounted in Slaughterhouse-Five. The extent to which the law reflects the interest of the people within the selfdetermination territory seems as apt a place as any to illustrate the problem. International discourse on the point commences with a distinctly subjective voice, albeit one closely related to the objective narrative of the system itself. Judge Dillard, in his well known separate opinion in the Western Sahara Case,104 posited the nexus

97 Letter from the Permanent Observer for Palestine to the United Nations Office at Geneva addressed to the United Nations High Commissioner for Human Rights (Nov. 20, 2002), U.N. Economic and Social Council, Commission on Human Rights, 59th Sess., Provisional Agenda Item 8, Doc. E/CN.4/2003/G/17, 6 December 2002. 98

See G.A. Res. ES-7/2 (1980), supra note 85.

99 East Timor (Port. v. Austl.), 1995 I.C.J. 90, 102. But see, South West Africa (Eth. and Liber. v. S. Afr.), 1966 I.C.J. 6 (holding applicant states lack right or interest required to bring a claim alleging infringement of U.N. mandate for Namibian territory).

See I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 513 (4th ed. 1990); but see J. CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 81 (1979).
100 101 102

Reference re Secession of Qubec, [1998] 2 S.C.R. 217 (Supreme Court of Canada). K. VONNEGUT, JR., WAMPETERS, FOMA & GRANFALLOONS 238 (New York 1974)..

103 J. Somer, Geodesic Vonnegut; or, If Buckminster Fuller Wrote Novels, in THE VONNEGUT STATEMENT 243 (J. Klinkowitz & J. Somer, eds., Delacore Press 1973). 104

Advisory Opinion Rep.12 I.C.J. (1975).

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between territorial rights and human rights as giving precedence to the latter: [i]t is for the people to determine the fate of the territory, and not the territory the fate of the people.105 The courts alter-ego on the subject of self-determination has been the Decolonization Committee, which has added its own distinctive point of view on the issue in the cases of Gibraltar and the Falkland Islands. The Committee has intervened in a surprising way,106 engaging in a retroactive assessment of the disruptive effect of population shifts and thereby elevating the significance of territorial contiguity with a neighboring sovereign over the desires of the local population.107 The initial take on self-determination Judge Dillards separate opinion stands in the same relationship to the International Court of Justice as Kurt Vonnegut the first person character stands in relation to Vonnegut the omnipresent author. When the biographical Vonnegut intrudes into Slaughterhouse-Five there is an instantly derogatory effect on the incorporeal narrative voice, as if the presence of a separate, corporeal identity undermines the authority of the story line. In Dillards case, he is both a part of the courts majority and a scholar with his separate voice, articulating the stark way in which the doctrine of self-determination engages people rather than land. Indeed, his alternative, highly realistic dictum about people determining the fate of territory, makes a mockery of the antiquated discussion of uti possidetis, terra nullius, and other territorial rules pursued by the majority of the court.108 The technique of mocking the omniscient author of which he is a part is mimicked by Vonnegut, albeit in a more sardonic, quasi-vaudevillian voice. At the very outset of Slaughterhouse-Five, Vonnegut, the first person character gives a separate opinion to the reader, exclaiming in frustration, I would hate to tell you what this lousy little book cost me in money and anxiety and time.109
105 106

Id. at 122.

Decolonization Committee, Cmnd. 2632 at 14; G.A. Res. 2070, U.N. GAOR 20th Sess., Supp. No. 14, at 58 (1965) (encouraging a negotiated solution for Gibraltar as between Spain and the United Kingdom); G.A. Res. 2065, U.N. GAOR 20th Sess,, Supp. No. 14, at 57 (inviting Argentina to participate in the Committees deliberations over the Falklands).
107 In both the Gibraltar and the Falklands cases, the Decolonization Committee and the General Assembly have focused their analysis on a particular reading of paragraph 6 of the Declaration on the Granting of Independence to Colonial Territories and Peoples, G.A. Res. 1514 (XV), U.N. GAOR 15th Sess., Supp. No. 16, at 66 (1960) (Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.). 108 Supra note 104, esp. para. 87 (Western Sahara (Rio de Oro and Sakiet El Hamra) is a territory having very special characteristics). 109

VONNEGUT, supra note 10, at 2..

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The second take on self-determination the Decolonization Committees preference of territory over people comes as a legal alternative, or alter ego to the ICJs authorial voice. In the same vein, Vonnegut sets up his science fiction writer, Kilgour Trout, as the alternative authorial presence in his work. Vonnegut speaks through the persona of Trout much as the law speaks through the persona of the Committee, each being a pale creation of the figure or institution that spawned it. Indeed, the Committees actions in catering to the political whims of its members, cheapening its pronouncements in comparison with the weightier words of the international judiciary, finds sarcastic parallel in the low brow career of Vonneguts Trout. The science fiction works of Trout are said to lack intrinsic value, but Trout himself manages a difficult group of workers in a way that might be the envy of any Committee chair. Not one of them has made money, the reader is told. So Trout keeps body and soul together as a circulation man for the Ilium Gazette, manages newspaper delivery boys, bullies and flatters and cheats little kids.110 As a final matter, the entire question of self-determination has been addressed from the omniscient perspective of the General Assembly and the Security Council in the case of East Timor. Here the banal voice of institutional authority has opined that the self-determination of all peoples involved in conflicts over their governance must be given legal effect, whether they are characterized as colonies, states, or non-self-governing population groups.111 The pronouncement seems to call out for a return to innocence, to a time of depoliticized, objective law. In this cry for a simpler time, international law is reminiscent of Kilgour Trout as he appears in Breakfast of Champions,112 dreaming of returning to his youth and receiving a second chance from his creator. Make me young, make me young, make me young!113 he exclaims in a voice that, ironically, seems to resemble Vonneguts description of his own father. Of course, many people would like a second chance at life, the difference with Trout being that his creator, a novelist, can make it come

110

Id. at 166.

111 G.A. Res. 3485, U.N. GAOR 30th Sess., Supp. No. 34, at 118 (1975) (calling on the people of East Timor to decide their own future); S.C. Res. 384, U.N. SCOR, 20th year, Resolutions and Decisions, at 10 (1975) (calling on Indonesia to facilitate self-determination in East Timor). See also, Opinion No. 2, Arbitration Commission, European Community on Yugoslavia, 92 I.L.R. 167 (1992) (the Republics must afford the members of those minorities and ethnic groups all the human rights and fundamental freedoms recognized in international law, including, where appropriate, the right to choose their nationality.). 112 113

Supra note 30. Id. at 295.

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true by starting a new story.114 As a final stroke of indignity to the failed author, Vonnegut does make Trout young again three novels later in Jailbird,115 but he places him in prison serving a life sentence. In similar fashion, many lawmakers would no doubt like to start from an empty legal slate; and, indeed, in the precedent-free world of international institutions the decision-makers can make it come true by starting a new story.116 Like Vonneguts author within the author, however, the legal pronouncements on self-determination are subject to a final indignity. The Security Council and General Assembly may start over with a clean doctrinal slate, but the law is banally repetitive, imprisoned by its own constructs even as it is liberated from them. All of which explains how a field of law that increasingly contains the use of force within formally authorized settings, can endorse uninhibited attacks by irregular forces while eliminating their reference from its documents. The law has its own multiple personalities, each contaminating the other. Just as the Second World War firebombing of Dresden can be an appendix to a fantasy about Tralfamadorean notions of civilization,117 so the UNHRCs embrace of liberation by any violent means can be an appendix to a fantasy about human rights. The documents speak for themselves in a chorus of contrary voices. In a novel meant to come to grips with the mass death of war, one entire chapter of Slaughterhouse-Five is devoted to a television discussion about the death of the novel itself. During the course of the conversation, Billy Pilgrim, who is participating in the panel, expounds on his recent adventures in traveling through time and space with his half-nude Hollywood mate. Since one persons delusion is the next persons realism, the interjection infecting reality with fantasy makes sense from Billys point of view but makes no sense from anyone elses. In much the same way, a hallucination about armed force begetting liberation can be injected into the doctrine of law restraining armed force, the laws authorship being composed of the relative voices of its characters. Since one peoples oppression is the next peoples liberation, the resolution infecting pacifism with violence makes sense from its
114

D. E. MORSE, THE NOVELS OF KURT VONNEGUT: IMAGINING BEING AN AMERICAN 104 (Westport 2003). (Trout is said to resemble Vonneguts father, but as an author he is impotent to re-create Vonnegut (i.e. his erstwhile offspring) who, in circular fashion, is actually his creator.). KURT VONNEGUT, JAILBIRD (New York 1980).

115 116

On the International Court of Justices use and non-use of precedent see, Certain Phosphate Lands in Nauru Rep. 240 I.C.J. (1992).

For a description of the relationship between reality and fantasy in Vonnegut, see, G. Meeter, Vonneguts Formal and Moral Otherworldliness: CATS CRADLE and SLAUGHTERHOUSE-FIVE, in KLINKOWITZ AND SOMER, supra note 103, at 206.
117

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supporters point of view but makes no sense from anyone elses. By making the extremes of fantasy and reality all but indistinguishable, however, these interjections threaten to expose, and to thereby kill, both the novel and the law. Reminding the audience of the relativity of reality undermines the enterprise of fiction; reminding the nations of the relativity of violence undermines the enterprise of law. Accordingly, Vonnegut tells us, Billy, the carrier of the message of narrative death, was gently expelled during a commercial.118 D. The Burlesque of Legal Logic The law of war is easy to update but difficult to understand. It travels backward and forward in time, with all of its contemporary themes found in statements of the past and all of its outmoded processes given prominence today. Collective international action regulated through institutional cooperation in warfare, and the sovereignty of a defensible and inviolable Iraq, inter-relate as time travelers in the politico-normative universe. At the same time, legal logic hides within multiple narrative personalities, and subjective and objective voices disguise and infect one another to form a doctrinally mixed-up chorus. Liberation from occupation, liberation pacifism , liberation from logic, all hide beneath the surface of resolutions aimed at advancing different meanings for Israelis, Palestinians, and others engaged with the Middle East. The law of war has therefore become entangled in a temporal and interpretive battle of its own. Each pronouncement fights against either a relic from the past or its opposite contemporary number, and often can be seen fighting the war within itself. Legal logic, in other words, has become hidden among the clashing rules and the clashing nations. Like Vonnegut as author, it is almost unrecognizable wearing dark glasses in the cocktail lounge of the Holiday Inn where he has assembled the chief characters for their violent interaction.119

118

VONNEGUT, supra note 10, at 206.

119 C. Berryman, Vonneguts Comic Persona in Breakfast of Champions, in BLOOM, supra note 11, at 63 (describing the climactic scene in BREAKFAST OF CHAMPIONS (1973), the novel immediately following SLAUGHTERHOUSE-FIVE).

SPECIAL ISSUE Criminal Justice after 9-11: ICC or Military Tribunals

By Thomas Mertens*

A. Introduction Nowadays, widespread consensus exists that the dramatic events of September 11, 2001 changed not only the country that suffered these attacks but also the way many in the West view the world outside this exclusive circle. For quite a number, it confirmed Huntingtons thesis of a clash of civilizations a vision of a future of us versus them.1 But as the attackers were being identified, it became clear that in a sense they came from among us; although technically foreign nationals all, they lived and studied inconspicuously in western, multicultural societies.2 How are we then to deal with this enemy within? How is democracy to fight this so-called War on Terror3 and survive? Such questions are obviously not new. Bearing De Tocquevilles assertion in mind that a long war is not needed in order to put freedom at risk in a democratic society,4 this article, using the technique of a thought experiment, seeks to examine the increased prerogatives that governments fearing the enemy within have granted themselves in the realm of criminal law to deal with
Professor of Philosophy of Law, University of Nijmegen, The Netherlands. I wish to thank the participants of the conference on Ethics of Terrorism and Counter-Terrorism at the Zentrum for Interdisziplinre Forschung in Bielefeld, October 2002, and its organiser, Professor Georg Meggle. I would also like to thank Aleksander Pavkovic and Morag Goodwin in particular.
*

S. Huntington, The Clash of Civilizations, 72 Foreign Affairs 22-49 (1993); B. TIBI, FUNDAMENTALISMUS IM ISLAM (Darmstadt 2000).
1 2 Those who carried out and provided the logistical support for the 9/11 attacks had studied in Germany, the United States, lived in the UK etc.; similarly, those accused of the Madrid bombings have been present in the country for a number of years and were registered at universities there. 3 According to President Bush, the war on terrorism is a war on many fronts: foreign governments will have to choose between supporting the war on terrorism or not; terrorists financial networks will be dismantled; the military will be on the highest alert for a just battle; internal, domestic safety will be increased by a set of legal measures; and the perpetrators of these random killings and of the attack on civilization will be brought to justice. Taken from Bushs State of the Union Address 9 days after the attacks: J.W. EDWARDS & L. DEROSE, UNITED WE STAND - A MESSAGE FOR ALL AMERICANS (Ann Arbor, MI 2001). 4 A. DE TOCQUEVILLE, DEMOCRACY IN AMERICA 621 (Harvey C. Mansfield & Delba Winthrop ed., Chicago UP, 2000).

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the perceived threat. This experiment will bring the reader, in a non-specialist way, from the criminal justice system of Germany to the possible role of an operational International Criminal Court, and from the criminal justice system of the United States to military tribunals as a means of dealing with what those in power claim is an extraordinary threat. B. An Imaginary Case: Criminal Justice in Germany as Rechtsstaat One of the frontlines of the so-called war on terrorism is the legal one: those responsible must be brought to justice.5 What follows is an attempt to envisage the path this legal battle might take.6 The main actor in this legal fantasy is Osama Bin Laden. Suppose he were to surface in Europe one of these days, say in Germany. He had managed to escape Tora Bora and the Afghan- Pakistan border long ago and, after much wandering along drug and migrant trafficking routes had ended up in Europe. He has assumed a new identity, built a new life inside the Fortress Europe, but as restrictions on the level of pressure that may be exerted on captured Al-Qaeda suspects are lifted, the intelligence agencies of the West now cooperating like never before gain information as to his whereabouts.7 He is in Germany. Since the Security Council has declared that the attacks of September 11 constituted a threat to international peace and security,8 and although the German Government has not been allowed an insight into the evidence against Bin Laden, it is willing to accept that he is the mastermind behind the attacks. Germanys border control officers arrest Bin Laden as he attempts to flee the net encircling him. By doing so, Germany also fulfills its duty as a loyal member of NATO, as Article 5 of the NATO-treaty has been invoked. How could this highly implausible story continue? According to the rule of law, the German Government could not immediately put Bin Laden on a plane to the United States - washing their hands of a most embarrassing detainee - but must hold him in custody in a safeguarded penitentiary awaiting a request for his extradition. Although there are a number of extradition treaties between the US and Germany, a request by the US Government for Bin Ladens extradition would not in fact be so simple a thing. Germany is a state party
5

EDWARDS, supra note 3.

6 When this paper was first conceived the courts had yet to provide guidance as to the course they intended to follow; the recent days of course have seen the German courts make their mark in the war on terror gratifyingly similar to the lines envisaged here. See Infra note 15. 7 J. Lelyveld, In Guantanamo, The New York Review of Books, Nov. 7, 2002 (quoting an officer: If we put them in the Waldorf Astoria, I dont think we could get them to talk). 8

G.A. Res. 1368, U.N. (2001).

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to the European Convention on Human Rights (ECHR) and to its Protocol VI, which forbids the administration of the death penalty.9 These commitments on the part of State Parties to the EHCR played an important role in a case that took place some time ago.10 An American NATO-serviceman stationed in The Netherlands had killed his wife in The Netherlands and had been arrested. The US requested his extradition based on the NATO-Status Treaty. That Treaty gives primary jurisdiction to the sending State for this crime.11 To prevent his extradition to the US, he successfully appealed to The Netherlands obligations under Protocol VI, Art. 1 to the ECHR: The death penalty shall be abolished. No-one shall be condemned to such penalty or executed. That State Parties of the ECHR cannot extradite those in their detention to trial in countries where they are likely to face torture or inhuman and degrading treatment has been a mainstay of the Council of Europe legal order since the now-famous Soering judgment.12 Bin Ladens lawyers naturally call upon this important precedent. Additionally, it is argued that it is highly unlikely that their client will face a fair trial after all that has been said about him in the media. Article 6 of the ECHR requires that: Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law a stipulation, it is alleged, that the US Government could not fulfill; even outside the US it is now received opinion, endlessly repeated, that Bin Laden and Al-Qaeda planned and carried out the 9/11 attacks. Finally, his lawyers argue that since September 11th the standard of civil liberties in the US has deteriorated significantly: hundreds of people are now detained without trial (contrary to the right of habeas corpus)13 and the confidentiality principle between lawyer and client so integral to the integrity of the justice system is no longer respected, as

In Unsere Erneuerung. Nach dem Krieg: Die Wiedergeburt Europas, Habermas cites the abolition of the death penalty as one of the defining elements of European identity. Habermas, Unsere Erneuerung. Nach dem Krieg: Die Wiedergeburt Europas, FRANKFURTER ALLGEMEINE ZEITUNG, May 31, 2003. NJ, 1991, 249 (Short) (Dutch Case Law). North Atlantic Treaty, Apr. 4, 1949, art. 7, 3.

10 11 12

Soering v. UK (1989); available at http://hudoc.echr.coe.int/hudoc/. The Soering case is particularly pertinent as the applicant a German national accused of the murder of his girlfriends parents faced the death penalty if convicted in the US; the Court did not conclude that the death penalty per se was contrary to the provisions of Article 3 but rather held that the manner in which it was imposed or executed or the conditions of detention whilst awaiting execution were two factors that may, dependent upon the circumstances of the case, constitute a breach of Article 3. The severity of the conditions in which detainees in Guantanamo Bay are kept leaves little doubt that the threshold of inhuman and degrading treatment would be met, even without the allegation that torture is a regular tool of interrogation there. Y.B Eur. Conv. on H.R. Article 5; Article 9 ICCPR, and U.S. Const. amend. V.

13

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such conversations and correspondence are now intercepted.14 In fact, there are a number of interesting terror related extradition cases currently underway, highlighting the difficulties regarding extradition of suspects from Germany to the US.15 According to the thought experiment, the German courts show themselves fairly immune to political pressure, whether from the German Government or from the European Union eager to rebuild bridges with the US. And in the light of the above, it is fair to suppose that the request by the US for the extradition of Bin Laden would be refused. The German Government cannot but obey the ruling of the court and ends up with Bin Laden in its custody. So, what next for the worlds most infamous terrorist? C. Scenario One: ICC Let us imagine that the German Government turns to the International Criminal Court (ICC), in an attempt to see Bin Laden charged with crimes against humanity. The German authorities argue that the 9/11 attacks fit exactly the definition of Article 7 of the Rome Statute: Crime against humanity means murder when committed as part of a widespread or systematic attack directed against any civilian population16 and as anticipated by Article 14 (1) of the Statute.17 This description of the crime would fit the rhetoric of President Bush himself, that the attacks on his nation constituted an attack on civilization itself. Moreover, in his taped addresses to the world, Bin Laden has repeatedly called for an attack on all Americans without prejudice.18 For such crimes was the ICC established.

14 15

Provisions of the Patriot Act and the changes it brought are considered in more detail below.

M. Hartwig, The German Federal Consitutional Court and the Extradition of Alleged Terrorists to the United States, 5 German Law Journal, 3 (2004), at http://www.germanlawjournal.com. On the recent overturning of alleged terrorist convictions by the German Federal Criminal Court, see http://www.rferl.org/featuresarticle/2004/3/76BF1BD9-921B-4DDB-A5BC-28CC94328693.html; http://news.bbc.co.uk/1/hi/world/europe/3592857.stm.

16 In this respect, one can allege that the 9/11 crime falls into the same category as the assasination of 8,000 Kurdisch civilians in Halebja in 1988 or that of 7,000 Muslims in Srebrenica in 1995, to mention only a couple of examples. It almost goes without saying that so far states have been far more efficient in the killing of innocents than any terrorist organisation. That Bin Laden should be tried on the charge of crimes against humanity is also suggested by G. ROBERTSON, CRIMES AGAINST HUMANITY - THE STRUGGLE FOR GLOBAL JUSTICE 507-510 (2d ed. Harmondsworth 2002). 17 A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation. 18

See Y. BODANSKY, BIN LADEN - THE MAN WHO DECLARED WAR ON AMERICA 279-280 (New York 2001) (1999). See also to kill the Americans and their allies - civilian and military - is an individual duty for

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If the German Government chose to turn Bin Laden over to the ICC, it would opt for a court that was established by the Rome Statute, signed by 120 states (now 139) in 1998 and thus reasonably representative of the international community as a whole. The treaty establishing the ICC came into force, however, only in July 2002, following ratification by 60 states (now 92). To be sure, the ICC has no retroactive force and can only try new cases. In this thought experiment, the German Government holds that the principle of nulla poena sine lege is nonetheless respected as although the attacks predate the establishment of the court, the statute itself had already been signed.19 In addition, the German Government maintains that the crimes with which Bin Laden is charged were already, prior to the Rome Statute, illegal under international law. The definition of crimes against humanity, over which the ICC now has jurisdiction, was found in existing positive law, such as treaties (the Genocide and Geneva Conventions), precedents (decisions and rules of the Nuremberg- and Tokyo-tribunals, and those of the more recent Yugoslavia- and Rwanda-tribunals), customary law and prevailing legal opinion (what some would call natural law). Often, as in the Eichmann trial,20 the issue of an international court has been raised in relation to crimes against humanity. With the high profile trial of Bin Laden, the ICC would have the opportunity to establish its reputation. Germany turns over Bin Laden to the ICC in the Dutch city of the Hague, which prepares to host the first major international trial of the 21st century.21 The difficulties connected with an extradition to the US, such as the likely imposition of the death penalty and the near-certainty of a lack of fair trial and due process are thus resolved. But a new major problem arises. It is unclear whether the ICC has jurisdiction, since it does not have universal jurisdiction automatically. There
every Muslim . The International Islamic Front for Jihad against Jews and Crusaders, February 23, 1998 at http://www.fas.org/irp/world/para/docs/980223-fatwa.htm.
19 A claim that places the German Government admittedly in direct contravention of Art. 11(1) of the Rome Statute. 20

H. ARENDT, EICHMANN IN JERUSALEM 269 (Harmondsworth 1994) (1963) (concurring with previous similar comments by K. Jaspers).

21 A salient but often forgotten detail in this context is the fact that ideas of an international criminal court as it functioned for the first time in Nuremberg do not originate from (the context of) the Second World War and the Charter of London, but rather from the First World War. After Germanys defeat, an international tribunal was pursued, in particular to try the German emperor (under the slogan Hang the Kaiser, Treaty of Versailles, sec. 227-9). At that time, the Dutch Government objected. By not extraditing the German emperor, who fled to The Netherlands, and calling upon its neutrality, The Netherlands obstructed this first step towards international criminal justice. See, e.g., T. BOWDER, BLIND EYE TO MURDER 17-19 (London 1995) (1981); Robertson, supra note 16, at 225-6.

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are a number of grounds upon which the ICC can try a case (Art. 13), for example, where the Security Council demands prosecution in its powers under Chapter VII, where a State Party refers a case and where the prosecutor initiates his or her own investigation. However, admissibility is governed by the principle that the national state of the accused or the state where the crime took place has the right to investigate and try the suspect first; the ICC thus has jurisdiction only if the state of which the suspect is a national fails to prosecute22 being either unable or unwilling , or if the state within whose territory the crime is committed waives its jurisdictional rights (Art. 17(1)(a)). It is unimaginable, even in this flight of fancy, that the countries involved will defer their own jurisdiction in favor of the ICC. The decision of Saudi Arabia in 1994 to strip Bin Laden of his nationality has apparently left him stateless23 and it is unlikely that any state will claim Bin Laden as one of its nationals in order to give the ICC jurisdiction. Nor is it conceivable that the state in which the crimes were committed would waive its jurisdiction. The US, as is well known, opposes the ICC vigorously.24 Moreover, the US veto on the Security Council ensures that this body will not make the appropriate request granting the ICC jurisdiction. Yet, the Court can determine that a state is unwilling or unable to try a suspect and waive the principle of complementarity, where it judges that national proceedings were not or are not being conducted independently or impartially (Art. 17(2)(c)). It is highly unlikely, however, although not inconceivable that the Court would, on the same grounds that gave the German courts such cause for alarm, hold that the US could not offer Bin Laden an independent or impartial trial and assert their own jurisdiction. Such boot-strapping is not unusual for international tribunals; the International Tribunal for the Former Yugoslavia (ICTY) had to face similar hurdles

22 23

Robertson, supra note 16, at 350. This is the principle of complementarity.

The story of the Saudi authorities stripping Bin Laden of his citizenship was carried by the BBC. Kuwait Disowns Bin Laden Aide, CNN, Oct. 14, 2001, at http://news.bbc.co.uk/hi/english/world/middle_east/newsid_1599000/1599088.stm. However, an international arrest warrant for Bin Laden posted on the interpol website in 1998 lists his nationality as Saudi Arabian. http://www.interpol.int/public/Wanted/Notices/ (accessed 15th April 2004).
24 Even though many argued that it is exactly the principle of complementarity that offers a greater protection to American personnel than current international practice and/or status of forces agreements that uphold a sovereign nations exclusive jurisdiction to try and punish offences committed by persons of any nationality within its borders, United Nations Association of the United States of America, http://www.unausa.org/dc/advocacy/iccfact.htm. In connection with this, this principle would also render obsolete the notorious and at first secret appendix B (granting immunity to NATO personnel from any form of arrest) to the unsuccessful Rambouillet- negotiations preceding the Kosovo war.

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in Tadic,25 and successfully answered the questions about its jurisdiction. Moreover, the German Government argues that the US Government should be consistent: having supported the ICTY, it must support the ICC as well. Prima facie, this might seem a weak argument, but the attacks of September 11th and the continuation of horrific attacks on civilian populations around the world underline the necessity of ongoing international cooperation, not only as far as information and intelligence sharing are concerned, but also in the field of criminal law. If the Bush administration explicitly states that it considers these attacks to constitute a crime against humanity, it should, so it is argued, allow those accused of masterminding the attacks to be tried by humanity. Moreover, it is worth noting that Al-Qaeda is accused of more crimes than those committed in New York and Washington. As the whole of the international community is increasingly affected, the US cannot claim precedence over the rights of other countries to try the networks mastermind and the truly international scope of Al-Qaedas reach means that the ICC is again the only place where justice for all their victims can be done. Germany is determined to see that such justice be done and hands Bin Laden over to the ICC in The Hague, relying upon the Dutch Governments commitment to international law despite the difficulties this may cause them. In 2000 the US passed the so-called The American Servicemembers Protection Act, designed to protect US military personnel and other elected and appointed officials () against criminal prosecution by an International Criminal Court to which the US is not a party.26 The Act authorizes the president to use all means necessary and appropriate to bring about the release of US personnel or other parties held by the ICC (Section 8 a). Accordingly, were the Court to claim jurisdiction on the grounds suggested above, it is not beyond the bounds of imagination to foresee a US raid on The Netherlands to free our suspect from the captivity of the ICC were the wishes of the US Government to be disregarded.27
25

Tadic Case (Prosecutor v. Dusko Tadic), International Criminal Tribunal for the former Yugoslavia, The Hague, (1995) (published on the internet at http://www.un.org/icty/tadic/appeal/decisione/51002.htm.) http://www.unausa.org/dc/advocacy/iccfact.htm.

26

27 Additionally, the Act forbids any cooperation with the ICC, on the level of intelligence cooperation, like handing over classified national security material (Section 6) on the level of physical extradition of suspects to the ICC (Section 4 c), and on the level of military support to countries that do recognize the ICC (Section 7 a). The US tries to circumvent the ICCs jurisdiction by means of bilateral agreements, on the basis of article 98 of the ICC Statute: The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

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D. Criminal Justice in the US Post- 9/11: General Situation For Bin Laden to find himself in the custody of the Americans, any number of events may have occurred. Imagine that German state officials do not respect the rule of law. Either the authorities hand Bin Laden directly over to the Americans, perhaps to the US troops stationed in Germany, or, more shockingly, decide that political and not legal arguments must prevail and put him on a plane to the States in contravention of the ruling of its own courts.28 Whichever route he has taken, Bin Laden is in US custody, facing trial in a criminal justice system that has changed radically over the course of the last few years.29 The principal changes can be summarized in three categories: measures in relation to domestic security, measures concerning the treatment of suspects of terrorism this category consisting mainly of detainees taken into captivity during the Afghan war and finally the institutionalization of military commissions or tribunals, most likely to be charged with trying Bin Laden. I. The domestic legal system In Bushs legal war against terrorism, the most important change on the domestic front is the USA Patriot Act (2001), an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.30 This act aims to enhance domestic security and does so by introducing more than 1000 provisions concerning surveillance procedures on all kinds of international money transactions, border control, criminal laws against terrorism, and information coordination. At the core of this Act stands a broad definition of terrorism targeted specifically at non-US citizens. It gives greatly enhanced powers to both domestic law enforcement and domestic and international intelligence agencies, and eliminates the checks and balances that previously gave the judiciary the opportunity to review the operation of such powers. If the attorney general has reasonable grounds for suspecting an alien of terrorism or aiding terrorism broadly defined, he may detain
28 Possibly using the slogan: Fac et excusa (act first and justify later), as, for instance, cited by I. Kant, Perpetual Peace -A Philosophical Sketch, in KANTS POLITICAL WRITINGS 120 (H. Reiss ed., Cambridge UP 1970). Moreover, for the German governments disappointed reaction to the FCCs ruling on Mounir El Motassadeqs case, see http://www.bundesregierung.de/-,413.616894/pressemitteilung/SchilyEntscheidung-ist-zu-bed.htm. 29

See also W.E. Scheuerman, Rethinking Crisis Government, in 9 CONSTELLATIONS 492-505 (2002).

30 New anti-terrorist legislation has also been implemented in countries like the UK, France and Germany, and in the EU as a whole. On Britains detention camp under this legislation, see http://observer.guardian.co.uk/waronterrorism/story/0,1373,1106664,00.html.

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that person for seven days without any charge. If he then finds the release of the alien will threaten the national security of the United States or the safety of the community or any person, this detainee may be held in custody for a much longer period, indeed, indefinitely. As a result, newspapers report regularly upon the detainment of several hundred of people by the US Justice Department without conviction or based on minor charges unrelated to terrorism.31 Thus, as an alien under the Patriot Act, it is suggested that Bin Laden might be subject to indefinite detention without trial, held incommunicado, at the direction of the attorney-general. The most important argument in favor of such legislation as the Patriot Act says that the protection of individual rights, like liberty and privacy, cannot come at the cost of the safety of society as a whole. The attacks of September 11th suggested the need to find a new balance between basic rights and security, the latter being the prime objective of the leviathan. The US Constitution, along with certain rights guaranteed to all individuals,32 should not become a suicide pact. Securing the homeland, following such reasoning, justifies the enhancement of the executives powers and the corresponding reduction of the procedural rights of alleged criminals. In his important series of articles examining the state of this balance post-9/11, Ronald Dworkin acknowledges the importance of security, yet argues that it is misleading to speak of finding a new balance between risks and rights, between security and liberties. The question is not where our interests lie, he writes, but what justice requires. As a principle, government must treat everyone as of equal status and with equal concern, since every human life has a distinct and equal inherent value.33 This requires that a system of criminal law shall treat all equally in equal cases. If the system denies to one class of suspects rights that it considers essential for others, it acts unfairly. A system that nevertheless aims at doing so (as does the USA Patriot Act by specifically targeting non-US citizens) has to meet the following
31 See, e.g., S. Taylor Jr., Congress Should Investigate Ashcrofts Detentions, THE ATLANTIC MONTHLY (May 28, 2002); R. Dworkin, The Threat to Patriotism, NEW YORK REVIEW OF BOOKS (February 28, 2002). Today, such harsh detention regimes are also being applied to US citizens, like Jos Padilla, see, e.g., R. Dworkin, Terror & the Attack on Civil Liberties, NEW YORK REVIEW OF BOOKS (November 6, 2003). 32 Supreme Court decision 2491, 2500 (2001), in Zadvydas v. Davis evidences that the Due Process Clause applies to all persons within the United States, (Fifth Amendment: no person shall be held to answer for a capital, or otherwise infamous crime, () without due process of law) See also R. Dworkin, The Threat to Patriotism, NEW YORK REVIEW OF BOOKS (February 28, 2002); ACLU letter to Secretary of Defence Rumsfeld, January 15, 2002, http://www.aclu.org/NationalSecurity/NationalSecurity.cfm?ID=9301&c=111. 33 See, e.g., R. DWORKIN, FREEDOMS LAW - THE MORAL READING OF THE AMERICAN CONSTITUTION 10, 25 (Oxford 1966); R. Dworkin, Terror & the Attack on Civil Liberties, NEW YORK REVIEW OF BOOKS (November 6, 2003).

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two requirements, so Dworkin argues. First, it must have the candor to admit that it is treating one class of suspects unjustly because of security reasons. Second, it must reduce this injustice to the absolute minimum by allowing only the smallest curtailment of traditional rights possible.34 The new legislation does not meet these two essential conditions. It rather testifies to the Bush administrations general attitude of putting American safety first, at the expense of what Dworkin calls the international moral order that nations should respect even under threat.35 As a threat to US security, Bin Laden would undoubtedly find himself in special custody. Arguably, however, it would not suit the Bush administration to keep Bin Laden in indefinite detention. Bush stated that the perpetrators of September 11th had to be brought to justice. What kind of justice would that be? II. Foreign Nationals detained during the War on Terror. To imagine the most likely scenario of Bin Laden in US custody, it would be helpful to look at the fate of those already held in US custody. The second element of the USs legal war against terrorism concerns the treatment of those foreign nationals captured in the course of the war on terror, mainly in Afghanistan and now in Iraq. Bin Laden would surely be the most important detainee of the War on Terror, but he is not the first. From the perspective of international law, matters seem quite clear: the treatment of detainees in any armed conflict is governed by international humanitarian law.36 The US considers itself at war and if one understands the attacks of September 11th as the occasion of that war beginning, anyone arrested (read: taken prisoner) in connection with this war must be treated in accordance with the laws laid down in the Geneva Conventions. The designation of the actions of Al-Qaeda, except where members participate alongside more conventional
34 35 36

R. Dworkin, The Threat to Patriotism, NEW YORK REVIEW OF BOOKS (February 28, 2002). See R. Dworkin, Terror & the Attack on Civil Liberties, NEW YORK REVIEW OF BOOKS (November 6, 2003).

The question of the applicability of the Geneva Conventions in the War on Terror is controversial and has been the subject of vast amounts of print. The conflicts in Afghanistan and Iraq are clearly international armed conflicts and, as all are parties to the Geneva Convention, the conclusion suggested here is that the Geneva Conventions as well as customary international humanitarian law apply in full; as McDonald and Sullivan note, international humanitarian law must be interpreted in light of the principles thereof, such as the Martens Clause of 1899, and that such guiding principles ensure the applicability of the Geneva Conventions even in types of conflict previously unseen, such as a so-called War on Terror. McDonald & Sullivan, Rational Interpretation in Irrational Times: The Third Geneva Convention and the War on Terror, 44 HARVARD JOURNAL OF INTERNATIONAL LAW 301 (2003). While the Bush administration clearly disagrees, they have failed to provide a legal reason upon which they base their decision, asserting instead that the Conventions are simply no longer relevant in this not-so-brave new world. See also http://www.icrc.org/Web/Eng/siteeng0.nsf/0/C82A7582AE20DCD1C1256D34004AEA41/$File/Geor ge+Aldrich_3_final.pdf?OpenElement.

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armed forces in, say, Afghanistan or Iraq, as constituting part of an international conflict is obviously a controversial interpretation,37 but one which can turn to the designation by the Security Council of the events of 9/11 as a threat to international peace and security for support.38 Moreover, the Appeals Chamber of ICTY in its Tadic ruling set a standard for an armed conflict protected by the Geneva Conventions as protracted armed violence between governmental authorities and organized armed groups.39 It can be argued that the regular terror attacks claimed by members of the Al-Qaeda network in the period before and since September 11th meets the definition of protracted. Although contentious, it is thus alleged that Bin Laden has been detained in a situation of international armed conflict. Since we are dealing with a situation of war, most relevant here are the Third and Fourth Geneva Conventions,40 dealing with the protection and treatment of captured combatants during an international armed conflict - those entitled to Prisoner of War (POW) status - and with persons involved in an armed conflict who can not aspire to the high level of protection granted POWs, such as civilians, respectively. These two conventions aim at providing a certain status to every person involved in an armed conflict. Article 5 of the Third Convention thus reads as follows: Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4,41 such persons shall enjoy the protection of the present Con37 According to the State Department, Al-Qaeda is not a state party to the Geneva Convention; it is a foreign terrorist group. Status of Detainees at Guantanamo, US DEPARTMENT OF STATE POLICY DOCUMENT, Feb. 7, 2002, http://www.state.gov/p/sa/rls/fs7910pf.htm. 38

Security Council Res. 1368 at para. 1 (12 Sept. 2001).

39 Supra note 25. Nolle Qunivet, The War on Terror and International Humanitarian Law, available at http://www.ruhr-uni-bochum.de/ifhv/news/Tashkent_Speech%20Quenivet.pdf. 40 It is assumed, for ease, that it is accepted by all that Additional Protocols I and II have not attained the status of custom and thus do not apply (the US is not a signatory and nor are any of the parties against whom it considers its enemies). The application of the Protocols effects the definition of combatant but will not be considered here. 41 Third Conventions Article 4 enumerates: A. Prisoners of war are . 1. Members of the armed forces .; 2. Members of other militias and members of other volunteer corps, , provided that (they) fulfil the following conditions: (a) That of being commanded by a person responsible for his subordinates; (b) That of having a fixed distinctive sign recognizable at a distance; (c) That of conducting their operations in accordance with the laws and customs of war. 3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. 4. Persons who accompany the armed forces without actually being members thereof, .; 5. Members of crews () who do not benefit by more favourable treatment under any other provisions of international law. 6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. B. The following shall likewise be treated as prisoners of war under the present Convention: ..

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vention until such time as their status has been determined by a competent tribunal. Thus, all those arrested or taken prison are considered POWs until determined otherwise by a competent tribunal, whereupon they are either confirmed as such or fall under the protection of the Fourth Convention regarding civilian persons.42 According to the Commentary of the authoritative International Committee of the Red Cross, these articles ensure that nobody in enemy hands can fall outside the law. The category of unlawful combatant is not part of the Geneva Conventions regime. This, of course, does not mean that those falling under these two Conventions, protecting POWs or civilians, cannot be tried by a court martial or a criminal court. The taking up of arms against the enemy during war does not in itself constitute a criminal offence. The question of ius in bello is not connected to the matter of ius ad bellum and thus the fact that hostilities were not announced by the organizers or perpetrators of the 9/11 attacks prior to them, does not affect their status once captured. Nonetheless, POW status does not protect a person from being charged with war crimes, crimes against humanity or common crimes; nor are persons granted civilian status under the Fourth Convention free from prosecution for such offenses. According to convention provisions, however, both civilians and POWs must receive a fair and regular trial and each detainee is entitled to the essential guarantees of independence and impartiality as generally recognized.43 The US authorities have not followed this generally accepted interpretation of the Geneva guarantees. From the outset, Secretary of Defense Rumsfeld declared that the detainees were, as he labeled them, unlawful combatants without rights under the Geneva Conventions.44 Those taken into custody by the US Army were transferred to Guantanamo Bay, a small Cuban strip that is legally speaking not part of US territory.45 For that reason, those detainees cannot appeal to ordinary American courts, for example, for a writ of habeas corpus, and standards guaranteeing a basic level of detention conditions are not applicable.46 This decision has been severely criticized, and the US Government has in the meantime moderated its position by
42 Or: protected persons, see J. Cerone, Status of Detainees in International Conflict, and their Protection in the Course of Criminal Proceedings, THE AMERICAN SOCIETY OF INTERNATIONAL LAW INSIGHTS, http:// www.asil.org/insights/insigh81.htm. 43

Fourth Convention, Article 3; see also Third Convention, Article 84.

44 See, e.g., http://www.armed-services.senate.gov/statemnt/2001/011212wolf&rums.pdf; See also http://www.us-mission.ch/press2002/0802detainees.htm. 45 46

At the time of writing, some 650 persons from around 42 countries are being held there. In order to have the lawfulness of their detention tested by the court.

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distinguishing between Taliban Government forces and Al-Qaeda fighters,47 and by promising to treat them humanely, in a manner that is reasonably consistent with the principles of the Third Geneva Convention, to the extent that they are appropriate.48 Only recently, the US Supreme Court has decided to take on four terrorrelated cases, two of which relate to the indefinite detention of non-US citizens at Guantanamo and the two others relate to the power of the President to designate US citizens as enemy combatants. Hearings are supposed to start shortly, with a decision foreseen for this summer.49 While this concession to international criticism mitigates the earlier decision, there are several good reasons why the decision not to apply the standards of the Geneva Conventions is not simply unlawful, but unwise. Firstly, decisions on what status detainees should be granted must be decided by a court on an individual basis, as the US Government did during the First Gulf War, and not by way of classifying a whole group of persons; secondly, deviating from the Geneva system will work as a dangerous precedent and have adverse effects for all combatant parties including the American army;50 thirdly, circumventing international humanitarian law in order to obtain valuable information from imprisoned terrorists is of no avail, since the duty to abstain from torture and inhuman and degrading treatment does not follow from this alone, but also from other sources of legal guarantees.51
This distinction might not work since some argue that Al-Qaeda was part and parcel of the Taliban Government, Robertson, supra note 16, at 478, 480, 496. See also Article 75 Geneva protocol I (ratified neither by the US nor by Afghanistan, but nevertheless regarded as customary law). For a different view, see A. Roberts, Counter-terrorism, Armed Force and the Laws of War, http://www.ssrc.org/sept 11/roberts_text_only.htm (also published in 44 SURVIVAL 2002.
47 48

US DEPARTMENT OF STATE POLICY DOCUMENT, supra note 37.

49 T. Mauro, High Court at Crossroads, http://www.law.com/jsp/article.jsp?id=1076428374712; D. Cole, Goodbye, Menschenrechte, http://www.zeit.de/2004/17/Essay_Cole. 50 Indeed, the US Government is quick to demand the application in full of the Geneva Conventions where its personnel are involved in quasi-legal situations. The capture of Army Chief Warrant Officer Michael Durant in the course of a US operation against the Somali warlord Mohamed Farah Aideed a non-state party to the Conventions saw the US Government demand that his treatment be consistent with the provisions of the Third Convention. Details taken from McDonald & Sullivan, Rational Interpretation in Irrational Times: The Third Geneva Convention and the War on Terror, 44 HARVARD JOURNAL OF INTERNATIONAL LAW 301 (2003)., who note futher, If the Geneva Conventions are binding on Somali warlords, non-state parties must be granted the same protection. McDonald & Sullivan, Rational Interpretation in Irrational Times: The Third Geneva Convention and the War on Terror, 44 HARVARD JOURNAL OF INTERNATIONAL LAW 310 (2003). 51 Despite White House legal Counsel Gonzaless leaked memo that modern terrorism renders obsolete strict limitation on questioning of enemy prisoners, quoted in: S. Taylor Jr., We Dont Need to Be Scofflaws to Attack Terror, THE ATLANTIC ONLINE, (Feb. 5, 2002). See Third Convention, Art. 17. See also Universal Declaration of Human Rights, Art. 5; International Covenant on Civil and Political Rights, Art. 7; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The latter

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Thus, in conclusion, Bin Laden in US custody finds himself in a country in which the protection of domestic civil liberties for US citizens, but most especially for aliens, has been restricted to a considerable degree. He himself will be denied the protection of the Geneva Conventions. The refusal to apply the normal standards of either peacetime or war is justified by the contention that fighting terrorism is an exceptional situation, very different from both ordinary situations of armed conflict and peace time, and that the rules of the legal game have to be changed accordingly. This battle against terrorism demands new instruments, of which military commissions or military tribunals constitute the third element of this experiment. Bin Laden would very probably have to face justice in the form of such a commission. III. Scenario Two: Military Tribunals Although some have suggested the contrary,52 the concept of unlawful combatants, used for the Guantanamo detainees, cannot be found in the Geneva Conventions, neither explicitly nor, it is argued here, implicitly. The concept has a different origin, one uniquely American , a point that will be elaborated below. Nothing in the war on terrorism has provoked as much criticism as Bushs Military order of November 13, 2001 - Detention, Treatment, and Trial of Certain NonCitizens in the War Against Terrorism.53 Based on an extraordinary, national emergency, this Presidential order declares that any individual who is not a US citizen and whom the President reasonably believes to belong to Al-Qaeda or to be engaged in acts of terrorism, must be placed under the control of the Secretary of Defense and be tried exclusively by a military commission, established by the Secretary of Defense and without application of the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.54 The suspects shall be detained humanely by the Defense Deprohibits in its Art. 2 (2) the use of torture under emergency situations. Moreover, McDonald and Sullivan argue persuasively that Art. 17 of the Third Convention does not prevent interrogation and suggests that the authorities could have interviewed detainees without needing to deprive them of POW guarantees. McDonald & Sullivan, Rational Interpretation in Irrational Times: The Third Geneva Convention and the War on Terror, 44 HARVARD JOURNAL OF INTERNATIONAL LAW 310 (2003).
52 S. Taylor Jr., We Dont Need to Be Scofflaws to Attack Terror, THE ATLANTIC ONLINE, (Feb. 5, 2002); J. Lelyveld, In Guantanamo, THE NEW YORK REVIEW OF BOOKS, (November 7, 2002); A. ROBERTS, COUNTERTERRORISM, ARMED FORCE AND THE LAWS OF WAR. 53 66 Fed. Reg., Vol. 222, 57833-57836; See also A. Arato, The Bush Tribunals and the Specter of Dictatorship 9 CONSTELLATIONS 458-463 (2002). 54 It could be argued that this order establishes some sort of rival to the International Criminal Court itself, since it seems to aim at anyone connected to terrorism among the more than 20 million non-

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partment until their trial before a military commission, a body composed of military officers. This commission admits all evidence as would have probative value to a reasonable person, but proceeds in a manner which is consistent with the protection of classified information. Conviction will follow upon the concurrence of two-third of the members of the commission, to be followed by a sentence that may include the death penalty. Only the President or the Secretary of Defense can review this conviction. The possibility of remedy by any court of the United States or any State thereof, any court of any other nation or any international court is explicitly excluded. After fierce criticism, the Defense Department promulgated, on 21 March 2002, an order in which the most extreme provisions have been removed: it introduces the presumption of innocence until a suspect is proven guilty beyond reasonable doubt; the possibilities for legal advice are extended; an unanimity vote is required for a death penalty; some kind of appellate review is introduced although still not by any domestic or international court; under certain circumstances, any such trial would be open to journalists and the public.55 These revisions constitute real improvement and a step in the direction of a fair trial, but reason for suspicion remains.56 Dworkin, for example, has argued that the public status of the trials is still dubious, since it might easily be held behind closed doors (even barring the accused himself) if classified and classifiable information is presented to the court and any possibility of appeal to civilian courts is still lacking. Even under these new procedural rules, an accused might be tried in secret and sentenced to death on evidence that neither he nor any other outside the military has even heard.57 In addition, the Pentagons chief lawyer has stated that the government might not even release accused terrorists who were acquitted by such a tribunal if they were thought to be dangerous.58 This renders the effectiveness of these tribunals fully dependent on the executive, and their existence seems to violate one of the corner stones of the rule of law, the separation of the executive and the judiciary. These tribunals do not arguably constitute a court at all but are merely an extension of the powers of the President, who acts either personally or through the officers he commands as
citizens in the US and all others in the rest of the world, see American Civil Liberties Union (ACLU) Memorandum on Military Tribunals 4 (November 29, 2001).
55 56 57 58

Military Commission Order No. 1, DEPARTMENT OF DEFENSE, March 21, 2002. See http://news.bbc.co.uk/1/hi/world/americas/3334823.stm R. Dworkin, The Trouble with the Tribunals, THE NEW YORK REVIEW OF BOOKS (April 25, 2002). Id.; See also J. Lelyveld, In Guantanamo, THE NEW YORK REVIEW OF BOOKS, (November 7, 2002).

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prosecutor, judge, jury, and appeal judge. It is essential to distinguish these tribunals or commissions from the institution of military courts or court-martials, which are common in many legal systems.59 There are good reasons for having this sort of military justice. Sometimes, for example in times of war, there is a need for rapid adjudication near the battlefield, based on specialized knowledge. Even when war is not imminent, the differences between the military world and the civilian may justify the existence of specialized courts, which take seriously the demands of strict authority relationships, discipline, restricted privacy and the use of lethal weaponry. Importantly, the fact that these courts exist, does not necessarily affect the quality of the trial itself. Generally, it is held that the US military justice system respects basic principles of fairness.60 And if it adjudicates its own soldiers in a fair way, nothing stands in the way of adjudicating by way of the same procedures foreign soldiers who are accused of committing crimes.61 The military commissions have their roots in American history. Military commissions are connected with the distinction between legal and illegal combatant. While legal combatants can indeed be tried before an ordinary court or a court-martial, illegal combatants may not be. These commissions have been used repeatedly by the U.S. in times of war. They were used during the American Revolution by George Washington, during the Mexican-American War in the mid 19th century and especially during the Civil War, where there may have been as many as 4000 military commissions. This institution created the possibility of trying and convicting people who would otherwise have been released by civil courts, not because of their innocence but because of the sympathies of the jurors.62 During the Civil War period, the use of these commissions was contested. In Ex Parte Milligan,63 Lamdin Milligan was convicted by a commission for serious of59

C.L. Eisgruber & L.G. Sager, Military Courts and Constitutional Justice, http://www.utexas.edu/ laws/news/colloquium/papers/Sager-Eisgruber.doc; See also Robertson, supra note 16, at 502, 508.

60

C.L. Eisgruber & L.G. Sager, Military Courts and Constitutional Justice, http://www.utexas.edu/ laws/news/colloquium/papers/Sager-Eisgruber.doc (referring to the Supreme Courts Weiss v. United States, 510 U.S. 163 (1994)); A. Neier, The Military Tribunals on Trial, THE NEW YORK REVIEW OF BOOKS (February 14, 2002).

61 Third Geneva Convention, art. 102. Of course, fighting a war itself is not a criminal offense, as the important difference between a soldier and a criminal is acknowledged. 62 J. Dean, Military Tribunals, at http://writ.news.findlaw.com/dean/20011207.html, and J. Wallace, Military Tribunals, http://www.spectacle.org. 63

71 US (4 Wall.) 2 (1866).

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fenses, including violation of the laws of war, while aiding the Confederacy. His conviction was overturned by a unanimous Supreme Court, which argued that he, as a citizen of a non-seditious state, could not be tried by a military tribunal and that regular courts were available to hear his case, in full respect of the Fifth and Sixth Amendment. The Supreme Court said: [U]ntil recently no one ever doubted that the right to trial by jury was fortified in the organic law against the power of attack. It is now assailed. [T]his right the most valuable in a free country is preserved to every one accused of crime who is not attached to the army, navy, or militia in actual service. Thus, the jurisdiction of the military could not be extended beyond those who were actually serving in the military, to the civilian world outside.64 The Supreme Court also argued, although without unanimity, that only Congress, and not the President, could authorize detention without trial.65 In order to justify the recent order, however, the government relies upon a later Supreme Court decision in which the use of military commissions was upheld. This is the now well-known Ex Parte Quirin case.66 In 1942, eight Nazi saboteurs, one of them named Richard Quirin, landed on American shores in order to commit acts of sabotage. Mainly through deliberate negligence and by supplying the FBI with information, the saboteurs, none of them committed Nazis, were arrested without having caused any damage. President Roosevelt, however, demanded that these men be tried before a military commission and refused them access to a civilian court.67 The aim was that their trial be held quickly and in secret. Furthermore, the prestige of the FBI would be protected and the American public assured that their coastlines were well protected. The saboteurs were accordingly convicted by a military commission and sentenced to death. The mens lawyers contended before the Supreme Court that the military commission violated the US Constitution and the
Statement of T. Lynch, Cato Institute, before the Senate Judiciary Committee, at http://www.cato.org. It seems as if Milligan allows only two kinds of justices: civil justice for civilians and military justice for those serving in the armed forces. Some argue that the critical stance of the Supreme Court in Milligan could have been prevented by better legal counsel on the part of the government, see Dean, Military Tribunals, supra note 62; R.G. MCCLOSKEY, THE AMERICAN SUPREME COURT, 71-3 (3rd ed. 2000).
64 65 This point was not unimportant as it is related to the fact that there was no official declaration of war or act of Congress on which the President could rely. U.S. CONST., art. I, 8, cl. 11. 66 Ex Parte Quirin, 317 US 1 (1942). For extensive details of the case, G. Cohen, The Keystone Kommandos, THE ATLANTIC MONTHLY (February 2002); Furthermore, the government relies upon Johnson v. Eisentrager, a 1950 decision in which a habeas corpus petition filed by German nationals seized in China and held in a U.S. prison in Germany was denied by a court, the justices refusing to exert jurisdiction. See T. Mauro, High Court at Crossroads, at http://www.law.com/jsp/article.jsp?id=1076428374712 67 President Franklin Delano Roosevelt, Proclamation of July 2, 1942: Denying Certain Enemies Access to the Courts of the United States, FED. REGISTRAR 1942, 5, 103 (1942), quoted in Roberts, Counter-terrorism, Armed Force and the Laws of War, supra note 47.

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precedent set by the Milligan decision, and requested a new trial. The Supreme Court, however, upheld the legitimacy of the military commission, arguing that the situation in the Milligan case was entirely different from that of Quirin. The Court held that by universal agreement and practice the law of war draws a distinction between (...) those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.68 Today, it is Ex Parte Quirin that is cited as precedent.69 However, this decision is widely regarded as unsuitable to serve as such an important precedent. It is overtly reverential to the government70 and the then- Supreme Court, operating in the tense period of World War II, did not have a good record on civil liberties.71 The most likely fate for Bin Laden, were he to fall into American hands and not suffer summary execution, would be trial before such a military commission, followed by the imposition of the death penalty. Following the closure of our thought experiment, the consequences of trying Bin Laden before a military commission, both in terms of practical advantage and of justice, will be considered. The Bush administration holds indeed that a category of illegal combatants must be distinguished from the categories of ordinary POWs and ordinary criminals. Like the German saboteurs, terrorists are illegal combatants who sneak behind enemy lines, conceal their military affiliation, and have no regard for the laws of war. Since terrorists thus violate the laws of war, they are to be tried before a special commission. Such a principled stance, it is argued, also has a number of practical advantages: in a trial by military commissioners, there is no risk of a jury being intimidated by terrorists; confidential and classified material, essential for the war on terrorism,
68 Quoted in Wallace, Military Tribunals, supra note 62. The Hague Convention would then protect only the former, but not the latter. 69 70 71

See, for example, Neier, The Military Tribunals on Trial, supra note 60. See, for example, Dworkin, The Threat to Patriotism, supra note 31.

Only two years later, the Supreme Court upheld the internment of Japanese Americans, in: Korematsu v. United States, 323 U.S. 214 (1944). In the Yamashita case, 327 U.S. 1 (1946), the Supreme Court upheld the legitimacy of the military commission trying the Japanese Commander of the Philippines, Yamashita. In this case too, the court held that procedural protections were not available to enemy combatants. Two justices dissented here. Justice Murphy argued that the due process right mentioned in Fifth Amendment applies to all persons and that this was not respected in this case. Justice Rutledge argued that hearsay evidence of all type was admitted here which would have been excluded in a US court, and he complained that the universal protection of fair trial was violated. See Wallace, Military Tribunals, supra note 60. Moreover, the Supreme Court was unnecessarily hasty in its Quirin decision, giving judgment only one hour after oral arguments had closed.

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need not be disclosed to the general audience, but is only made available for the vetted commissioners; the risk of lengthy, time consuming procedures is minimal and the trial will not provide a platform for terrorist propaganda; in sum, one should accept flexibility with regard to the characterization of a fair trial. Many commentators do not find this principled stance or the practical advantages asserted very convincing. They argue that there seems to be no practical necessity to resort to military commissions. In the past, ordinary civil courts have successfully tried terrorism cases, such as that of Timothy McVeigh, or that of the 1993 attacks on the World Trade Center. Legislation exists to successfully accommodate both the governments wish for secrecy and the requirement that the accused be able to confront the evidence against him. Likewise, legislation has served to protect the identity and security of jurors in criminal cases against organized crime.72 An ordinary trial might indeed be more time consuming, but this is what procedural justice requires. Moreover, it is not evident that a long trial will serve propaganda purposes: does the Serbian nationalist cause benefit from Milosevic being able to tell his truth in The Hague?73 What would be the most effective way to neutralize Bin Laden? To have him tried, convicted and executed after a secret trial which would assure him of hero status in the eyes of many, or to subject him to a demystifying trial which would reveal not only the morally appalling consequences of his deeds, but also his and his organizations hypocrisies and cruelties? An ordinary criminal trial against Bin Laden would not focus on a so-called clash of civilizations, but simply on the mens rea for the commission of a crime against humanity. It would reduce Bin Laden to human stature.74 To the implausibility of the so-called practical advantages of military commissions many practical disadvantages can be added. Convictions reached by these commissions might easily lack sufficient credibility, especially outside the US.75 This institution devaluates the earlier US critique of similar courts in other countries and makes any future critique look hypocritical.76 The use of these commissions will undermine the willingness of other countries to extradite suspects77 and aggravate
72 73

AMERICAN CIVIL LIBERTIES UNION (ACLU), Memorandum on Military Tribunals, under III. Cf. T. Judah, The Star of The Hague, THE N.Y. REVIEW OF BOOKS, 25 April 2002.

74 Robertson, Crimes against Humanity, supra note 16, at 509; One might also reconsider Hannah Arendts thesis on the banality of evil, in: Arendt, Eichmann in Jerusalem, supra n. 20. 75

Neier, The Military Tribunals on Trial, supra note 60.

76 HUMAN RIGHTS WATCH, Fact Sheet: Past US Criticism of Military Tribunals, at http://www.hrw.org/press/2001/11/tribunals1128.htm; AMERICAN CIVIL LIBERTIES UNION (ACLU), Memorandum on Military Tribunals, under V; Neier, The Military Tribunals on Trial, id.

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the tension that already exists between the US and other countries because of the Orders neglect of international standards for due process, as embedded in Articles 14 and 4 of the International Covenant on Civil and Political Rights, and due to divergent views on the death penalty. Whether sufficient legitimation for military commissions exists does not depend entirely on the lists of practical pros and cons. The argument in principle is decisive, and that centers on the question of whether it is legitimate to distinguish between legal and illegal combatants. If acts of illegal combatants such as terrorists differ in essence from ordinary criminal acts and from ordinary war crimes, than this distinction is valid and prosecuting them before a military commission with restricted procedures is justified. But the main flaw in this reasoning is the question of quis judicabit. One cannot prosecute suspects before such a military commission unless there is convincing evidence that they indeed committed the atrocious acts that would characterize them as illegal combatants. The decision to try them before a military commission effectively declares them to be illegal combatants. Yet it should precisely be the commissions task to establish whether or not they are illegal combatants, guilty of unlawful belligerency or not. The use of military commissions violates the presumption of innocence. This flaw was apparent in Ex Parte Quirin: the reason why the saboteurs were refused a trial by jury was that they were accused of being illegal combatants. Despite their denial at least two of them claimed that they were present on these missions solely to escape from Germany they were nonetheless turned over to a military tribunal and convicted. Although their determination as illegal combatants did not necessarily entail conviction, it reduced their opportunity to prove their innocence because of the procedural restrictions applied. The institution of military commissions does not respect the principle that criminal procedural rules should be designed in such a manner that the risk of convicting someone who is innocent be as low as possible.78 While the proponents of military commissions might admit such flaws, they would stress that the sort of terrorism seen on 9/11 is something completely new. As it has changed the world, it must change our standards of fairness. In ordinary criminal procedures and in ordinary court-martials, it is rightly assumed that it is better to set a hundred guilty persons free than to convict one single innocent person, and to accept the risk involved in this balance.79 With regard to terrorism, it is alleged that
77 78

Neier, The Military Tribunals on Trial, id.

As low as possible, since a criminal trial exemplifies only imperfect procedural justice: it seems impossible to design the legal rules in such a way that they always lead to the correct result, namely that a defendant is declared guilty if, and only if, he is guilty, in line with: J. RAWLS, A THEORY OF JUSTICE, 85 (Oxford 1971).
79

In the past, however, many death row cases testified to the opposite.

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we simply cannot afford to take such risks. It is no longer, the proponents argue, an acceptable policy to let to the guilty go free for fear of punishing the innocent. A different balance must be found between the security needs of society and the protection of the rights of the accused.80 In this new era, it is, regrettably, better to convict an innocent person than to let a terrorist go free.81 Such an argument plays on understandable fears and thus seems stronger than it really is. If the argument is turned around and one asks whether it would be acceptable to convict and sacrifice a hundred innocent people in order to neutralize one terrorist, the answer is less evident. However, if national security indeed requires the curtailment of the rights of the accused, an argument not necessarily accepted, the government should aim at curtailing them as little as possible, and should publicly acknowledge that by doing so it acts unfairly.82 E. Conclusion This piece is a thought experiment indeed. However, the likely outcome of Bin Laden in US control is clear. Yet the reason as to why the authorities would pursue a course so widely condemned, even by staunch allies83 and US citizens,84 and which would not necessarily bring the practical advantages claimed, remains to be examined. It would be too easy to presume on the part of the US Government an unwillingness to listen to good arguments and to attribute to the latter bad faith with regard to due process and fair trial. The preference in the US for military commission justice arguably stems from two interconnected reasons. Firstly, there exists a basic difference in the way in which the US and Europe have traditionally regarded international law.85 This is clearly
80

L.H. Tribe, Trial by Fur, THE NEW REPUBLIC, 10 Dec. 2001, quoted in Dworkin, The Threat to Patriotism, supra note 31. J. Wallison, In favor of military tribunal, CHRISTIAN SCIENCE MONITOR, (3 Jan. 2003) available at http://www.csmonitor.com

81

82 Dworkin, The Threat to Patriotism, supra note 31; C.L. Eisgruber and L.G. Sager, Military Courts and Constitutional Justice, supra note 59. 83 The detention of British citizens in Guantanamo Bay placed real pressure on the so-called special relationship, although much of it behind closed doors. K. Ahmed and T. McVeigh, Terror camp Britons to be sent home, THE OBSERVER, 30 Nov. 2003. available at http://observer.guardian.co.uk/international/story/0,6903,1096508,00.html 84 Among others: S. Hoffmann, On the War, THE N.Y. REVIEW OF BOOKS, 1Nov. 2001; T. Judt, America and the War, THE N.Y. REVIEW OF BOOKS, 15 Nov. 2001. 85 Compare, the American attitude towards the Kyoto protocols and the Johannesburg summit. The US has not ratified many widely supported conventions, such as the conventions regarding land mines, prohibiting discrimination against women, protecting the rights of the child and the Additional Proto-

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formulated by Habermas in his assessment of US policy both in Kosovo and, recently, in the second Iraq War in identifying the dual elements of pursuing national interests and of promoting human rights at the base of US policy. With regard to actions in Kosovo, Habermas wrote that the US conceives the international enforcement of human rights as a national mission of a world power which pursues this goal according to the premises of power politics. Most of the EU Governments see the politics of human rights as a project committed to the legalization of international relations.86 While the EU stresses the need to embed human rights in international law, the US is rather distrustful of international law and remains committed to its own standards. In connection with the recent Iraq War, Habermas took a stronger stance and initiated the engagement of leading European intellectuals to formulate a European answer to what he understood as American unilateralism.87 Secondly, this division has been intensified by the way in which the attacks were and are perceived on either side of the Atlantic, and by differing views as to the best means to address this new threat. While Europeans do not deny the magnitude of the events of September 11th, they are not (yet) fully convinced of a fundamental transformation in the nature of international relations. For the US it seems, the entire nature of the world they inhabit has changed; Condoleezza Rice spoke of a shifting of the tectonic plates of international politics.88 Much of course has been written and said on the different approach of the Europeans and the Americans to international relations since 2001 and it does not need repeating here; there is however a clear connection between the different understandings of the attacks and the different approaches to criminal justice for those caught up in these new hostilities. In his now well-read article Power and Weakness, one of the Bush administrations house intellectuals Robert Kagan contrasted the Promethean tasks faced by the US in the real world of international anarchy with the European view of an ideal world regulated by binding international law.89 The disagreement, according to Kagen, boils down to an opposition between Kant and Hobbes. Kagan writes: It is time to stop pretending that the Europeans and Americans share a common view
cols to the Geneva Conventions. Robertson, Crimes against Humanity, supra note 16, at 87; J.E. Alvarez, Do Liberal States Behave Better? - A Critique of Slaughters Liberal Theory, 12 EUR. J. OF INTL L. 183, 183-246 (2002).
86 87

J. Habermas, Bestiality and Humanity, 6 CONSTELLATIONS 269 (1999).

J. Habermas & J. Derrida, Unsere Erneuerung. Nach dem Krieg: Die Wiedergeburt Europas, FRANKFURTER ALLGEMEINE ZEITUNG, 31 May 2003.
88

F. FitzGerald, George Bush & the World, THE N.Y. REVIEW OF BOOKS, 26 Sept. 2002.

89 See also T. Judt, Its Own Worst Enemy, THE N.Y. REVIEW OF BOOKS, 15 Aug. 2002. See also Symposium the GLJ Kagan symposium, September 2003, at http://www.germanlawjournal.com/past_issues_ archive.php?show=9&volume=4

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of the world, or even that they occupy the same world; Europe is entering a posthistorical paradise of peace and relative prosperity, the realization of Kants Perpetual Peace. The United States, meanwhile, remains mired in history, exercising power in the anarchic Hobbesian world where international law and rules are unreliable and where true security and the defense and the promotion of a liberal order still depend on the possession and the use of military might.90 This would indeed, if a fair characterization, explain much of the different attitudes revealed in the thought experiment.91 Hobbes political vision is not the comforting story of a government dedicated to protecting a wide range of natural rights or to promoting life, liberty and the pursuit of happiness, but the discomforting story of a government whose legitimacy is derived solely from its capacity to guarantee its citizens safety and selfpreservation.92 In order to make this plausible, as we all know, Hobbes sketches a miserable picture of the state of nature, in which the life of man is solitary, poor, nasty, brutish and short. The foundation of the leviathan93 brings an end to this miserable situation, but it does so only temporarily. The world remains a dangerous place and the leviathans safety is permanently threatened from the inside by disobedient acts. However the leviathan is especially at risk from the outside, by acts that aim at destroying the bonds of the leviathan itself. There is, so to speak, always the possibility of an emergency situation. The concept of illegal combatants would seem to fit well into Hobbes vocabulary: these warriors aim at destroying civil society; they live in the state of nature, where civil laws, both domestic and international, do not apply. If they are captured, leviathan does not need to grant them any rights: it may treat them humanely, but it is under no obligation to do so. Kant never accepted so realistic an interpretation of concepts such as the state of nature or the social contract. The latter does not give us a historical explanation

90 R. Kagan, Power and Weakness, 113 Policy Review 1 (2002); fortunately for the Europeans, Kagan adds that the US is a Behemoth with a conscience, a liberal, progressive society through and through. The article was followed by a book Of Pradise and Power (New York, 2003), which added little to the main thrust of the argument. For an interesting comment on Kagan see D. Runciman, A Bear Armed with a Gun, LONDON REVIEW OF BOOKS, 3 Apr. 2003. 91 In his recent Americas Crisis of Legitimacy (83 Foreign Affairs 87 (2002)), Kagan mildly modified his position, arguing that .. Americans will need the legitimacy that Europe can provide 92

See, for example, L. Strauss, Natural Right and History, 181 (Chicago 1950).

93 Th. Hobbes, Leviathan, Ch XVII: The great LEVIATHAN, or rather, to speak more reverently, () that mortal god to which we owe, under the immortal god, our peace and defence.

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of the state, but informs us of how the state ought to be, according to Kant.94 He did not fear so much the return of the state of nature after the establishment of the leviathan, but the continuation of the state of nature between a plurality of leviathans or between leviathans and outlaws, illegal combatants or terrorists in other words. This state of nature can only be brought to an end when these sovereigns form a League of Nations in which their conflicts can be resolved peacefully; the failure to form such an association will see them and their leaders place themselves above the law. The leviathan is thus not threatened by the return of the illegal combatant, but by the absence of international law, which makes these leviathans themselves illegal combatants. International law, including international criminal law, must prevent that by considering all individuals and states as citizens of a universal state of mankind.95 Although military commissions and the ICC are juxtaposed by the differing visions of world order underpinning those that promote them, there is yet a commonality between the two individuals who have provoked this discussion. When concluding his September 20th State of the Union, President Bush expressed his confidence that God would watch over the United States of America. From the taped statements he has released, Bin Laden is apparently also fully convinced, using similar rhetoric, that Allah is on his side. Both invoke their ultimate Sovereigns.. Here lies the real danger, namely that in changing our societies according to the perceived needs of security, we face turning Kantian open societies into Hobbesian fortresses, and nothing will then in the end distinguish democracy from fundamentalist societies.96 The fundamentalist Bin Laden may lose the legal battle, but he will win the political war if his opponents mirror fundamentalist values by accepting the view that this war is a clash between two equally justified leviathans.

94 95 96

I. Kant, Reflexionen zur Rechtsphilosophie, 19 AKADEMIE AUSGABE 504 (No. 7740, see also 7737). I. Kant, Perpetual Peace - A Philosophical Sketch, 98-99. For a similar line of thinking, see R. Rorty, Post-Democracy, LONDON REVIEW OF BOOKS, 1 Apr. 2004.

SPECIAL ISSUE Terror, Sovereignty and Law: On the Politics of Violence

By Saul Newman*

A. Introduction This paper examines the ambiguous relationship between violence, law, and sovereignty in the context of terrorism today. It focuses, not on normative questions about terrorist violence, but on its structural relationship to law and the sovereign state. Part of the difficulty in theorising terrorism is its heterogeneous and indeterminate nature. For instance, if terrorism is to be characterised by a form of violence designed to inspire fear, then one can of course speak equally about state terrorism as one can about non-state terrorism. Indeed, one might recall that the very word terrorism derives from La Terreur of the post-revolutionary French Republic in the early 1790s. Saint-Justs words stand out as one of the most infamous justifications of state terrorism: What do you want, you who do not want virtue in order to be happy? What do you want, you who do not want the Terror to be used against the wicked?1 That the highest ideals of the Republic were accompanied, and indeed inscribed, through a systematic, yet often indiscriminate, register of violence that Republican virtue came to be associated with the willingness to be merciless is more than just a vicissitude of history. It speaks perhaps to the very nature of political discourse itself, unmasking the violence implicit in every political symbolisation, at the base of every law, no matter how democratic. For Claude Lefort, The Terror of the French Republic was a way of masking or covering over the symbolically empty place of power that was left in the wake of the Ancien Rgime. In other words, the discourse of Terror was a form of dissimulation - a desperate attempt to give substance to the Revolution, to retroactively invent its foundations, to fill the gap in the place of power that would from now on remain empty. The Terror was therefore characterised by a hysterical need to find more and more enemies of the Republic, more and more insidious plots against the Revolution, in order to continually justify itself, to put off the traumatic realisation of the

* 1

Department of Political Science, University of Western Australia, Crawley WA Australia.

Cited in CLAUDE LEFORT, DEMOCRACY AND POLITICAL THEORY 72-73 (David Macey trans., Polity Press, 1988).

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ambiguity of its own foundations. Terror embodies the fantasy of a social whole, of a society reconciled with itself, and yet is constantly haunted by the absence of foundation, the abyss of indeterminacy that opens up below ones feet and threatens to swallow the Revolution. As Lefort says: The image of a society which is at one with itself and which has been eliminated from its divisions can only be grasped during the administration of the purge, or, better still, during the work of exterminationIn that sense, the Terror threatened from the outset to be interminable. It is as though the terrorists constantly had to create the ground in which they want the Republic to take root. Their fascination with being is at the same time their fascination with the abyss.2 Is there not something like this fascination with the abyss in contemporary terrorist violence in both its state and non-state forms? It may be suggested that this abyss the indeterminacy and ambiguity that haunts any political or social symbolisation is present in the modern dialectic of terrorism and counter-terrorism. Terrorist violence always threatens to expose the emptiness and indeterminacy at the base of the symbolic authority of the law and the state. It unmasks the violent and mysterious foundations of this authority. Was there not a strange, almost sublime suspension of the Law a sense of the very impotence and vulnerability of its authority as we watched the collapse of the Twin Towers? Moreover, can we not see, in the states response to terrorism both the sovereign violence at the base of state authority, as well as the attempt to disguise this violence through a terrorism of its own? As Giorgio Agamben suggests, the state, which is increasingly obsessed with security, can always be provoked by terror to become terroristic.3 The desire to continually find new enemies, both external and internal, is more than a mere feature of a new ideological War on terror being waged by the modern state. Like The Terror of the Republic, it refers to something at the heart of political violence itself, and its shrouded link with law and authority. If, for the terrorists of French Republic, Terror was law in action or the sword of the law,4 and if todays terrorists are characterised by the very illegality of their actions, this raises fundamental questions about the validity of the distinction between legal and illegal violence.

2 3 4

Id. at 84. GIORGIO AGAMBEN, Security and Terror, in THEORY AND EVENT, 5: 4 (2002). LEFORT, supra note 1, at 73.

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B. Benjamins Critique of Violence This is precisely the question that Walter Benjamin explores in his Critique of Violence (Zur Kritik der Gewalt). Benjamins essay is important here, not only because it allows us to reflect on the ambiguities of terrorist violence, but also because it shows the complicity between the two seemingly opposed orders of violence and law or, more precisely, power. Benjamin presents here a genealogy of violence, exposing its ambiguous relationship with the law. Benjamin begins by showing the different conditions under which an action may be considered violent. Violence may, in the first sense, be seen as a pure means to an end. That is to say that an action may be judged violent if its ends or objectives are unjust. This view would be based, according to Benjamin, on the notion that violence is a natural force or capacity that can be put to either just or unjust ends. Indeed, Benjamin uses the French Revolution as an example of this natural understandingwherein violence was justified as long as it served just ends.5 According to Benjamin, however, this notion of natural law does not provide adequate criteria for a critique of violence, as it may be difficult to conceive of violence being moral, even if it was for a just cause. Counterpoised to this notion of natural law, then, is positive law, in which the means of a certain action, regardless of the justness of its ends, come under legal scrutiny. However, just as natural law leaves unresolved the question of means, so positive law leaves unresolved the question of ends. Nevertheless, despite the shortcomings of positive law, it is this question of means upon which Benjamins study focuses; positive law providing at least general grounds for critical reflection on a central question under what conditions is it possible to make a distinction between legitimate and illegitimate violence? The ground for this distinction is found in the sanction provided by the state and the legal system. That is to say, the state tries to establish a monopoly on violence by restricting others from exercising it, even if it is in order to attain natural ends. As Benjamin argues, From this maxim it follows that the law sees violence in the hands of individuals as a danger undermining the legal system.6 In other words, what is most threatening to the state is not the legality or illegality of peoples ends, but whether these ends are pursued with violence. That is to say, it is the mere existence of violence outside the law that constitutes a threat.

WALTER BENJAMIN, Critique of Violence in Selected Writings Vol. 1 1913-1926, 236, 236-7 (Marcus Bullock ed., Harvard University Press). Id. at 238.

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What implications does this argument have for terrorist violence? Is terrorism considered threatening simply because it is a form of violence outside the order of state authority, engaged in by non-state actors, regardless of whether the ends pursued by terrorists are natural and legitimate? The state, according to this analysis, sees in the terrorist a rival to its own monopolistic exercise of violence. Benjamin here talks about the great criminal and the admiration that he arouses because of the unsanctioned violence that his deed invokes. Do we not see this great criminal in the modern figure of Osama Bin Laden, who, while not exactly arousing our admiration, at least arouses our fascination? Bin Laden is a figure heavily invested with fantasies of transgression, of being somehow outside the law and embodying an excessive violence that threatens it. What Benjamin is endeavouring to do here is study violence on its own terms as pure means beyond the normative considerations that would be applied to its ends. Violence, in other words, constitutes a phenomenon that goes beyond the question of its particular objectives. It has its own logic and analytics. To this end, Benjamin introduces a further distinction between law-making and law-preserving violence. Law-making violence is violence against existing laws and conditions with the effect of constituting new laws. Therefore violence pursued for natural ends always has the potential to not only conflict with existing laws, but to construct new ones in their place. This is why, according to Benjamin, military conquest always culminates in a peace treaty in the sanctioning of a new law. Even action that has, as its consequence, the overthrowing of existing legal conditions, inevitably establishes new laws in their place. This form of violence is distinguished from law-preserving violence, where the pursuit of legal, as opposed to natural, ends has the function of maintaining and perpetuating the authority of the existing legal system. Even if violence is directed towards changing or reforming a particular law, it still operates within the paradigm of the legal system and therefore sustains its authority.7 For instance, military action - or militarism - embodies, according to Benjamin, both these dimensions of violence. As I have mentioned, it is lawmaking in the sense that it can lead to the overthrowing of an existing legal system in the pursuit of natural ends, and consequently the establishment of new laws in its place; it is also law-preserving, as it is a form of violence that can be used for legal ends it can be used, in other words, as an arm of state authority. Similarly, the modern institution of the police, argues Benjamin, combines these two functions: while most people would see police violence as law-preserving in the sense that it enforces existing laws, it can also be seen as law-making because its violence often functions beyond the realm of the law. The police often intervene
7

Id. at 243.

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for security reasons in an arbitrary fashion, outside the parameters of the law.8 Rather than this violence beyond the law referring simply to the actions of individuals ultra vires, it is linked to the very principle of sovereignty itself. As Agamben argues, sovereignty is defined by a state of exception in which the sovereign whose position is defined, paradoxically, by standing both inside and outside the law - can suspend the normal juridical framework and the legal limits and protections that are enshrined within it. Following Carl Schmitt, Agamben sees sovereign as the one to whom the law has granted the power to proclaim the state of exception, which would involve the suspension of the law itself.9 Indeed, in Theses on the Philosophy of History, Benjamin himself sees this state of emergency as not the exception, but the rule.10 So, in this sense, rather than the extra-legal violence of police being anomalous or exceptional, it constitutes what is essential to the institution of the police. In other words, police violence embodies a space of exception - a no mans land between legality and illegality - in which law is both preserved and transgressed through the very violence and arbitrariness with which it is enforced. There are a couple of points that could be made here. Firstly, the two examples of violence that Benjamin provides militarism and the police are examples of state, rather than non-state, violence. Does this perhaps indicate that the problematic of violence lies primarily within the paradigm of state authority? One could suggest, following Benjamins formulation, that the sovereignty of the state exists precisely in the ambiguous and two-dimensional nature of the violence it exercises the double-edged weapon of Terror of which Saint-Just spoke.11 In other words, state violence is always characterised by a combination of its law-preserving and lawmaking function. More precisely, it is this very distinction which is suspended here. The duality of the police violence that Benjamin discusses is perhaps never more apparent today, when the police intervene for security reasons in increasingly arbitrary and excessive ways in, for example, the forced detention of illegal immigrants or illegal combatants.12 As I have suggested, these actions are not illegal as
8

Id.

9 GIORGIO AGAMBEN, HOMO SACER: SOVEREIGN POWER AND BARE LIFE, 15 (Daniel Heller-Roazen trans., Stanford University Press, 1998). 10 WALTER BENJAMIN, Theses on the Philosophy of History, in ILLUMINATIONS, 255, 259 (Hannah Arendt ed. & Harry Zohn trans., Fontana, 1982). 11 12

See LEFORT, supra note 1, at 73.

As Agamben shows, this deliberately ambiguous category of illegal combatant denies the detainee any legal status and, thus, any legal rights, leaving them vulnerable to the unrestricted power of the state. See Giorgio Agamben, The State of Emergency, address at the Centre Roland-Barthes, Universite Paris VII, Denis-Diderot at http://www.generation-online.org/p/fpagambenschmitt.htm.

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such, but extra-legal - which is to say that they are made possible through a space of exception where the normal juridical order no longer applies. The detention camps in Guantanamo Bay are precisely extra-legal spaces which are outside the jurisdiction of US law and instead are under the control of the US military. This form of intervention, which often goes beyond the parameters of the law in the very name of enforcing it, suspends the distinction between law-making and lawpreserving violence, and is paradigmatic of the principle of state sovereignty. If we are to define terrorism by the illegality of its violence, we can say that terrorism and state violence share an analytical structure and logic. They may be seen, in other words, as part of the same dialectic of violence. The violence that they both display is in its very nature excessive, arbitrary and often falls outside the law. Terrorism, because it represents a violence that is beyond the state and outside its control in other words, an alternate law-making violence presents a supreme challenge to the authority of the state, thus provoking in the state a kind of terrorism of its own. Benjamins analysis of violence allows us to understand terrorist violence on its own terms as pure means beyond the question of its ends. This may seem surprising, as terrorist violence is usually associated with a series of political or strategic demands the release of political prisoners, or the withdrawal of an occupying force, for example. However, I would suggest that September 11 was symptomatic of a new form of terrorist violence that is no longer linked to specific demands or objectives, but is rather a violence of pure means. The second point is that, despite the differences between law-making and lawpreserving violence, they both lead to a perpetuation of the law or, more precisely, power. Law-preserving violence, because it acts either to enforce existing laws, or to change only particular laws, maintains the authority of the legal system and the state. Law-making violence, which is directed towards the overthrowing of existing laws, only establishes new ones in their place. In both cases, the symbolic place of the Law is maintained and perpetuated. Law-making violence is particularly problematic for Benjamin because it succumbs to this illusion that one is breaking absolutely with existing forms of authority, only to establish a new authority in its place, thus remaining, inextricably, within the very paradigm it seeks to overthrow. Therefore, lawmaking violence only reaffirms the place of power. In fact, law-making violence is irreducibly related to the problem of power, reaffirming the link between violence, law and power. As Benjamin argues, the violence in law-making is paradoxical it has as its aim, in so far as it seeks that which is to be established as a new system of laws, the dismissal or overcoming of violence; yet, at the same time, violence is instantiated and reaffirmed at the very moment of this establishment of the law. In other words, there is an irreducible violence at the heart of the law, despite the attempt of lawmaking to disavow the violence at its own foundations. Rather than the dismissal of violence, it specifically establishes as law not an

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end unalloyed by violence but one necessarily and intimately bound to it, under the title of power. Power, in other words, refers here to this irreducible connection between violence and the law. Power is the signifier for this inextricable binary link between violence and law violence against the law always involving a reaffirmation of the law; the law which seeks to dismiss violence always involving a violence of its own, re-instating violence in its very foundations. Power is what presides over this connection. That is why, as Benjamin argues, Lawmaking is powermaking, assumption of power, and to that extent an immediate manifestation of violence.13 Benjamin therefore forces us to re-think the question of violence within the problematic of power, and to examine the relationship between violence and power. Benjamin has presented a genealogy not only of violence, but of law as well. Law and violence have been shown to exist in an ambiguous relationship, in which violence reaffirms the law and the law reaffirms violence. The spectre of an immanent Law looms up behind every act of violence against it; the law is based, in turn, on a disavowed violence which haunts its foundations, making its formulations problematic. One could argue, then, that there is always a violence at the heart of every form of political and legal authority. Derrida, following from Benjamins Critique, makes precisely this point: the operation that amounts to founding, inaugurating, justifying law (droit), making law, would consist of a coup de force, of a performative and therefore interpretative violence that in itself is neither just nor unjust.14 That is to say, the law must be founded on something that pre-exists it, and therefore its foundation is, logically speaking, extra-legal and violent. The founding gesture of the law - the secret of its being - must be some kind disavowed original crime or act of violence that brings the body of the Law into existence and which is now is hidden in its symbolic structures. Terrorism, as a certain articulation of violence, has the effect of exposing this hidden sovereign violence precisely by inciting it, eliciting it in response. Moreover, through this genealogical analysis, Benjamin has introduced the problematic of power unmasking it in the very nexus of the relationship between law and violence. Power may be seen here as a signifier of this connection. That is to say that all instances of violence as well as the law, must ultimately invoke the principle of power. However, perhaps Benjamin does not go far enough in exploring this question of power and its connection with violence. In other words, is it possible to see the problematic of power and violence as different or even separate from the problem13 14

BENJAMIN, supra note 5, at 248. See JACQUES DERRIDA, FORCE OF LAW: THE MYSTICAL FOUNDATION OF AUTHORITY, DECONSTRUCTION 13 (Drucilla Cornell et al. eds., Routledge, 1992).

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atic of law and violence? Perhaps power suggests a different configuration of violence to the one implied by law. While Benjamin has introduced the principle of power into the relationship between law and violence, it remains now to explore this question of power on its own terms, as a different analytic of violence. This move away from the problematic of law to the problematic of power will have important consequences for an analysis of violence. Using Foucaults strategic or genealogical model of power relations, I will explore the specific relationship between violence and power. C. A Violent Analytics of Power In Michel Foucaults genealogical analysis of discourses, institutions and practices of power, it is clear that violence is a central concept in his thinking. Indeed, genealogy itself is precisely an unmasking of the disruption, discontinuity and violence at the heart of human history: Humanity does not gradually progress from combat to combat until it arrives at a universal reciprocity. Humanity settles each one of its violences within a system of rules, and thus goes from domination to domination.15 Like Benjamins Critique, Foucaults genealogical analysis allows us to examine the originating violence at the base of social symbolisations, laws and institutions. Like Benjamin, moreover, Foucault is interested in the question of power and violence as pure means. Power is not conceived here as an instrument or a capacity to achieve natural or even legal ends. Rather, power, like violence, must be understood on its own terms. As we shall see, power is a particular encoding of violence which operates at the heart of political and social discourse. What is important in Foucaults genealogical analysis of power is that it frees the concept from the paradigm of law and sovereignty. The problem with classical political philosophy, Foucault argued, was that it insisted in confining the question of power to a central sovereign place in society, in the formal figure of sovereignty, whether it be the body of the king, or the paradigm of the modern state. Power was symbolised in sovereign institutions, in bodies of law, in statutes and codes. The analysis of power, according to Foucault, remained caught within the juridicodiscursive framework that had little to do with the realities of modern power relationships, which were much more diffuse and decentralised. Foucault called for a new analysis of these power relations, beyond the question of law and sovereignty: What we need is a political philosophy that isnt erected around the problem of sovereignty We need to cut off the Kings head.16
15 MICHEL FOUCAULT, Nietzsche, Genealogy, History, in THE FOUCAULT READER 91 (Paul Rabinow, ed., Pantheon Books, 1984). 16

Foucault, Truth and Power, in POWER/KNOWLEDGE: SELECTED INTERVIEWS AND OTHER WRITINGS 109133, 121 (Colin Gordon ed., Harvester Press 1980).

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Instead of seeing power relations from the perspective of law and sovereignty, Foucault sees it through the lens of violence. Not only is violence inextricably linked with power, but, for Foucault, violence or more precisely war could serve as the theoretical basis for deciphering power relations. Violence, in other words, was not a phenomenon of power rather power was a phenomenon of violence. In a series of lectures organised around the title Society Must be Defended (Il faut defendre la socit) Foucault examined the discourse of war and conquest through a body of different texts, from those of Coke and Lilburne to Boulainvilliers. In a sort of counter-history, he explored the way that war - as a strategic principle and a practice of violence and conquest - had become, over the course of history, woven into the very tapestry of the social.17 Rather than war and violence being seen as something external to civil society, it is the very constitutive principle of any social identity. Indeed, our way of seeing society and its political formations is based on a metaphor of struggle and violence, which has its origins in actual warfare. The violence of this war now seen in metaphorical terms as a clash of representations has stolen its way into institutions, language, law and power itself. Indeed, Foucault raised the possibility of using violence and war as an analytical tool for understanding power relations: can we find in bellicose relations, in the model of war, in the schema of struggle or struggles a principle that can help us understand and analyse political power, to interpret political power in terms of war, struggles, and confrontations?18 Foucault here reverses Clausewitzs axiom that war is politics continued by other means: for Foucault, politics is war continued by other means.19 This violence is ongoing yet it is now codified in institutions, laws, economic inequalities, and even in language. Like Benjamin, Foucault does not believe that violence can be dismissed once the law is established. Rather, the register of the law itself must be seen as a form of violence. Violence speaks through these very laws, and the task of the genealogist, according to Foucault, is to unmask it, to awaken beneath the form of institutions and legislations the forgotten past of real struggles, of masked victories or defeats, the blood that has dried on the codes of law.20 Law, sovereignty and political power are merely articulations of an unspoken warfare that has raged throughout history. Violence operates as an ontological schema for interpreting the
There is an excellent survey of this course in BEATRICE HANSSEN, CRITIQUE OF VIOLENCE: BETWEEN POSTSTRUCTURALISM AND CRITICAL THEORY (Routledge 2000).
17 18

Michel Foucault, Society Must Be Defended: Lectures at the Collge De France, Lecture at the College of France (14 Jan. 1976), in SOCIETY 1975-76 23 (David Macey trans., Allen Lane 2003). Id. at 1-21, 15.

19 20

Michel Foucault, War in the Filigree of Peace: Course Summary, Address (1976) in OXFORD LITERARY REVIEW, at 17-18, (Ian Mcleod trans.,(1976)).

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world war, in other words, is a grid of intelligibility, a metaphorical essential condition by which different social, historical and political formations can be deciphered: Must we regard war as a primary and fundamental state of things in relation to which all the phenomena of social domination, differentiation and hierarchisation are merely derivative?21 Power, in this paradigm, is a certain unstable relation or constellation of hostile forces. Foucaults strategic model of analysis allows us to see violence as being at the very basis of social identity creeping into the very structures, laws, hierarchies and institutions that have been established to suppress it. Rather than society being founded on the idea of contract - as in the Hobbesian paradigm - it is based on a constitutive violence, both metaphorical and real, which continues to haunt it. Political sovereignty itself is merely a form of conquest that has fallen silent, and now tries to disavow the violence of its own origins through the discourse of law, contract and rational agreement. War and violence, in this sense, are the very sum of peace the primary condition and single reality from which social and political structures must be understood. Indeed, Foucaults strategic model implies a new kind of political philosophy - one that ontologically and epistemologically privileges war over peace, and violence over contract and law. The violence that the discourse of political philosophy has for centuries tried so hard to keep at bay, can be seen at the very heart of civil society. As Pasquale Pasquino has argued - following Foucaults analysis of Hobbes - the starting point of political theory must be the problem of disorder and threat of violence. The possibility of stable political identities, he suggests, is based on the overcoming of the condition of terror.22 Perhaps, in this sense, we may see terrorism as a form of violence which, in the Foucauldian sense, is both inside and outside civil society. That is to say, if we are to understand terrorism as a certain technology of violence, it is difficult to separate it analytically from the violence that has been codified in laws, institutions and the sovereign power of the state. Indeed, as I have suggested previously, terrorism has the effect of unmasking this constitutive violence. In this sense, the condition of terrorism is internal to civil society. On the other hand, terrorism would be characterised by its absolute and radical exteriority its alterity to civil society. It gives us a glimpse of the liminal condition of terror the absolute violence that haunts society at its limits, simultaneously threatening and constituting the borders of social and political identities. There is forever a spectre of violence and terror

21

Id. at 16.

22 PASQUALE PASQUINO, Political Theory of War and Peace: Foucault and the History of Modern Political Theory, in ECONOMY AND SOCIETY 22, 84 (1993).

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that is marked as a liminal trace at the borders of the social neither entirely outside nor inside civil society, but suspended above it as a permanent threat.23 D. Security and Biopower This inscription of violence and war in the framework of the social finds its modern permutation in what Foucault terms biopolitics. The race wars of earlier periods have now become codified in modern political discourses that have as their central concern the preservation of the biological life of the species. The target of politics in contemporary societies, according to Foucault, is the administration of life itself. This designates a new form of power biopower. The operation of power is now aimed at the regulation, calculation and administration of populations. Violence is still inscribed at the heart of these modern societies. However, the crucial difference with modern regimes of biopower is that, unlike sovereign regimes, where blood was shed symbolically on behalf of the sovereign, now wars are waged on a massive scale by states on behalf of the populations they administer. Sovereign societies, according to Foucault, were characterised by the symbol of the sword and the right of the sovereign to either take life or to spare it. The symbolic register of these societies was a supreme power over life and death: The sovereign exercised his right of life only by exercising his right to kill Its symbol was, after all, the sword.24 Sovereign societies were characterised by the power of the spectacle witness the spectacle of the scaffold, whose grotesque horrors and excessive violence Foucault described in the execution of the regicide Damiens.25 Power was exercised here in a highly symbolic fashion, through a violence that was excessive, spectacular and ritualised. Punishment involved, for instance, the literal sacrifice of the body of the condemned. Foucault argues that this notion of violence as spectacle and symbolic sacrifice is no longer characteristic of modern societies, in which power operates in a quiet, methodical, regulative fashion. Modern societies, by contrast, are characterised by an entirely different register and technology of power one in which the symbolic power of the sovereign to take life has been supplanted by a power that operates at the level of population and whose principle is to secure life. This modern technology of power is no less bloody, according to Foucault having produced unprecedented genocides and holocausts. However, its symbolic order is non-violent. That is to say, it is based on the principle of the preservation, rather than the sacrifice, of life.
23 Again we see the parallel between violence and sovereignty - the way that the condition of sovereignty is also this undecidability, in relation to the law. 24

MICHEL FOUCAULT, HISTORY OF SEXUALITY VO. 1, 136 (Robert Hurley trans., Penguin 1990).

25 See MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON (Alan Sheridan trans., Penguin 1991).

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That power is organised around the principle of the security and preservation of life is an undeniable fact of contemporary politics. The obsession with security now in the wake of recent outbreaks of terrorism is perhaps paradigmatic of this modern principle of power. As Agamben argues, the concern with security and the preservation of life, while always one of the several prerogatives of modern state power, has now become the fundamental principle of state activity. We can see this new preoccupation with security in the obsession with terrorist plots within ones own borders, with a new invisible enemy that can strike at any time. The security and protection of internal populations from this invisible enemy that is seen as both an external threat and an internal contaminant - has become the primary concern of political power. Questions of national security and the protection from terror are now the central feature of any political platform. Needless to say, this new raison dtre of the modern state has as its flip side the systematic destruction of life the meaningless military operations, for instance, that are engaged in precisely in the name of the preservation of life. Moreover, perhaps Foucaults argument about the essentially non-violent, regulative and life-preserving nature of power in modern biopolitical societies, finds its ultimate justification in the astonishment that the terrorist attacks on September 11 provoked. The only explanation for our transfixed fascination with this spectacle of excessive violence can be that we live in a society where the symbolic sacrifice of life is unthinkable. That the terrorists were prepared to sacrifice their own lives and the lives of others in a highly symbolic and violent fashion, is deeply shocking to a modernity governed by the principle of the preservation of life and the careful, methodical and administrative functioning of power. However, did we not see in the World Trade Center (WTC) attacks a strange anachronism almost the vague glimpse of an older order of sovereignty, of the symbolism of blood and the sword, of the absolutism of death over life? Did we not see, in this strange, almost inconceivable spectacle of destruction, amidst the flames and the tumbling debris, the uncanny figure of a sovereign violence long thought to be dead? It would seem that in an age where the spectacle of sovereign power has vanished from the register of politics, that it has returned as the power of the spectacle itself the spectacle of excessive violence that, Medusa-like, paralyses our gaze. The terrorist attacks bore witness to a new form of violence as spectacle the symbolic dimension of the sovereign sacrifice of life, which is precisely unthinkable in our contemporary times. So there are a couple of points to be made here about this constellation of violence and power. Foucaults analysis, by freeing the study of power from juridical questions and notions of the contract, has developed the connection, first hinted at by Benjamin, between power and violence. Violence is not only linked to power, but becomes, in Foucaults analysis, its very ontological condition. Foucault has placed violence at the heart of social and political identity. Moreover, he has shown the

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way that modern bio-political societies are based on a violence that has been rigidified into codes, norms and technologies of regulation into a political register that, instead of the symbolic right of the sovereign to take life, has as its defining principle the preservation and protection of life. Modern political power, or biopower, Foucault argues, operates through a register from which the violent, symbolic sacrifice of life has been excluded. However, what are we to make of the recent terrorist strikes, in which we see a return of the very symbols of sovereign force the power of the spectacle; the excessive, almost nihilistic quality of the violence; the intense spirituality of suicide and martyrdom; and the symbolic sacrifice of life? That is to say, in this excessive violence and sacralising of death, can we not see the intervention of an altogether different order one that is no longer intelligible within the paradigm of biopower? One could perhaps go further here. Are we perhaps witnessing a new economy of violence, one which can no longer be contained within the analytic of power? I will suggest that violence - in particular the new forms of terrorist violence that have exploded across our horizons contains a radically heterogeneous and excessive dimension that is no longer intelligible within the framework of power relations. The study of violence therefore demands a new analytic a new micro-politics beyond the parameters of Foucaults theory of power. Foucaults intervention has been invaluable in establishing the connection between violence and power. By positing violence as the essence of power, he developed a violent economy of politics. By going beyond this paradigm, however, I will seek to establish the conditions for a political economy of violence. E. Violence and Heterogeneity There are several elements that separate violence - in particular, terrorist violence from the order of power, and which allow us to see it in its irreducible particularity. Firstly, this form of violence is characterised by its heterogeneity. To speak of the heterogeneity here which is a term borrowed from Bataille means simply that there is an aspect of this violence that is unmediated. For Bataille, the heterogeneous is the waste-product of homogeneous society it includes everything that is unproductive and extraneous, and which is therefore excluded from homogeneous society. Violence, excess, delirium and madness characterise the heterogeneous.26 According to Bataille, however, the heterogeneous does not exist as a simple essence outside the order of the homogeneous and strictly separated from it. Rather, there is a dynamic interplay and antagonism between these two forces. Political change in society, for instance, depends upon this interaction different political articulations draw upon heterogeneous elements in order to constitute an identity. Bataille

26

See Georges Bataille, The Psychological Structure of Fascism, in VISIONS OF EXCESS: SELECTED WRITINGS, 137-160 (Alan Stoekl ed. and trans., University of Manchester Press 1985).

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shows that fascism, for instance, contains elements of both the homogeneous and the heterogeneous both the construction of order and its dissolution. Heterogeneous elements are present in fascism in the aesthetics of the spectacle marches, street parades, mob activity, etc. There is a certain register of the political here that operates through, or that contains elements of, an enacted excess of violence a spectacle of violence. New forms of terrorist violence are characterised by a similar heterogeneity. For instance, the attacks on September 11 represented a violent intrusion of excluded heterogeneous forces into the homogenous order of globalised capitalist society. The stable and commensurable political structures and identities of this order were disrupted by a certain irreducible particularity in this case a violent articulation of Islamic radicalism - that is excluded from this order. Furthermore, the aestheticised element of heterogeneity was evident in the deliberate use of the spectacle by the terrorists. The WTC attacks were a symbolic strike, manufactured for a television audience, and designed for maximum visual impact. Is this not reminiscent, as I have already suggested, of the power of spectacle the spectacle of scaffold which was the symbolic register of sovereignty? Here it seems the sovereign power of the spectacle has returned in this new aestheticised form of terrorist violence. However, now the spectacle of violence, that characterised sovereign power, has become the violence of the pure spectacle itself. Indeed, as Bataille argues, while heterogeneity is usually found in non-state or revolutionary elements - sovereignty itself is also in principle heterogeneous. The very condition of sovereignty lies in an excessive or superfluous power that goes beyond the logic of homogeneous society. This heterogeneous authority often manifests itself, Bataille argues, in a violence against the forces that oppose it: Situated above homogeneous society it requires the bloody repression of what is contrary to it and becomes synonymous in its split-off form with the heterogeneous foundations of the law.27 Here once again we are back to the question of sovereign authority raised by Benjamin, who also brings to light the heterogeneous and violent foundations of the law. It would seem that despite Foucaults insistence that sovereign power is a thing of the past, it is once again displayed in the states equally violent and symbolic reaction to the non-state, terrorist activity that has drawn its sword. This is particularly evident in the states use of military power to symbolise its authority. As Bataille shows, military power itself is also heterogeneous in principle its violence and its phantasmic reversal of slaughter into glory28 go beyond the order of homogeneity. The point here is that terrorist violence and
27 28

Id. at 148. Id. at 150.

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the violence of the state share the symbolic register of sovereignty. They are both examples of heterogeneous excess and spectacle that exceed the logic of a carefully ordered and administered homogeneous society. A further example that Bataille gives of heterogeneity is religious power. Religion, which functions through the affective power of the sacred, through the veiled and mysterious authority of the divine, contains, according to Bataille, a dimension of undifferentiated heterogeneity.29 This power of the sacred is largely unthinkable today. However, the terrorist strikes on September 11 displayed an intense spirituality embodied in ideas of martyrdom and self-sacrifice - that was utterly incommensurable with our modern, secular and technocratic social reality. Perhaps what was truly shocking about the September 11 attacks, as well as other suicide bombings that are taking place around the world, is that we are witnessing a religious fervour a spiritual jouissance that is entirely alien to us. After all, here are people who are prepared to die for their cause, to immolate themselves in the most ferocious explosions, to use their bodies as guided missiles, to sacrifice themselves in the absolute conviction that it is Gods will. Suicide and martyrdom are essential to the symbolic force of these attacks. We see in this form of violence the operation of the power of the sacred, beyond all ideologies and direct political concerns. As Baudrillard says about this new form of terrorist violence, Its goal is no longer to transform the world; rather, as with all, it seeks to radicalise the world through sacrifice...30 Revolutionary struggles have become, in the case of this new paradigm of terrorism, heterogeneous spiritual struggles characterised by a martyrdom for its own sake. The deliberate meaninglessness of the act of martyrdom highlights a further dimension of this new mode of violence its nihilism. What perhaps most distinguished the September 11 terrorist strikes was the absence of any sense of concrete political or strategic objectives: there were no demands made, no one claimed responsibility for the attacks, those responsible remained nameless and faceless. The effect of this was pure terror, as we were confronted with a violence characterised by its very meaninglessness and absence of content a violence without purpose or goal. This was perhaps the ultimate answer to Benjamins attempt to see violence beyond the question of ends as pure means. So far from Benjamins contention that the violence of pure means would be a kind of non-violence (exemplified by the general proletarian strike, or the notion of divine violence) here was an instance of pure means as a form of ultra-violence. In other words, in the case of this new form of terrorism, violence itself the spectacle of violence is both the means
29 30

Id. at 152. Jean Baudrillard, The Spirit of Terrorism, LE MONDE, 2 November 2001.

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and ends, or, more precisely, the very suspension of these categories. Previously terrorism, in most cases, was linked to carefully measured strategic or political goals violence was a means to what Benjamin would call natural ends. In this sense, it could be seen, in Foucauldian terms, as an act of resistance, as a form of counter-power. This new form of violence, by contrast, is no longer intelligible in this dialectic. In Alain Badiou words, it is a fascist nihilism.31 It can no longer be measured by the operation of power it contests. It is a nihilism at whose heart there is nothing but emptiness, the terror of pure form, and the death-drive that approaches the edges of the abyss. The excessive dimension of violence about which I have spoken, refers precisely to this nihilistic void. The excessive dimension of violence is perhaps the fundamental fantasy to speak in Lacanian terms of political power. At the base of all forms of political power and authority is the unspeakable abyss of contingency and indeterminacy. Perhaps one could argue that, on the one hand, violence has the function of covering up this traumatic void, of filling it and it giving it meaning in Benjamins terms, the function of law making or law preserving. Yet, as I have tried to show, violence also has the effect of exposing this very abyss, of tracing the hidden discontinuity at the origins of the law and political power. This was the paradoxical nature of The Terror of which Lefort spoke. Violence encircles the edges of this abyss, re-enacting the trauma of its own origins, both disavowing and affirming its symbolic link with sovereignty. In exploring this link first through the question of law, then through the problematic of power I have tried understand this fundamental function of violence. This function, I would suggest, is increasingly apparent in the new modalities of terrorist violence that we are witness to today: violence that is characterised by a dimension that exceeds the paradigms of power and law; that is excessive, heterogeneous and spectacular; that involves the sacrifice of life and the symbolism of death, and the terrifying nihilism of pure means.

31

ALAIN BADIOU, Philosophical Considerations of Some Recent Facts, in THEORY AND EVENT, 1-13 (Steven Corcoran trans., 2002).

SPECIAL ISSUE The E.U.s Definition of Terrorism: The Council Framework Decision on Combating Terrorism
By Eugenia Dumitriu*

A. Introduction Terrorist acts have, for a long time, constituted a major concern for the international community. Yet the definition of terrorism has represented an area of international law where the divergence of views between States was significant. For some, the protection of the State1 and of the democratic values of the society laid at the heart of the debate, whereas others were more concerned with the risk of an unjustified repression of freedom fighters.2 These approaches, although apparently complementary, have proved to be irreconcilable in practice. At the United Nations level, this division of the international community prevented the emergence of a consensus over a horizontal definition of terrorism. This situation,Ph.D. candidate (Graduate Institute of International Studies, Geneva), DEA International Law (Graduate Institute of International Studies, Geneva), LL.M. European Legal Studies (College of Europe, Bruges).
* 1 For a long period of time, only acts of terrorism targeting States were discussed at the international level. Acts of terrorism imputable to States were not part of the debate. See Draft Article 11(4)(b) of the Draft Code of Offences against the Peace and Security of Mankind (1986 version), which addresses solely terrorist acts targeting States or international organisations: The following constitute terrorist acts: (i) any act causing death or grievous bodily harm or loss of freedom to a head of State, persons exercising the prerogatives of the head of State, the hereditary or designated successors to a head of State, the spouses of such persons, or persons charged with public functions or holding public positions when the act is directed against them in their public capacity; (ii) acts calculated to destroy or damage public property or property devoted to a public purpose; (iii) any act calculated to endanger the lives of members of the public through fear of a common danger, in particular the seizure of aircraft, the taking of hostages and any other form of violence directed against persons who enjoy international protection or diplomatic immunity; (iv) the manufacture, obtaining, possession or supplying of arms, ammunition, explosives or harmful substances with a view to the commission of terrorist acts ([1986] 1 Y.B. Intl L. Commn 84). 2 On the 25 September 1972, during the twenty-seventh session of the United Nations General Assembly, the United States of America brought in a draft convention on terrorism (U.N. Doc. A/CN.6/L.850). The failure of this project is due in particular to the fact that some delegations from Third World countries insisted on the need of studying the causes of terrorism before drafting a convention on this issue.

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paradoxically did not impede the adoption of several international conventions dealing with specific aspects or forms of terrorism3 as well as of multiple resolutions on this issue.4 At the European level, under the Council of Europes aegis, the greater homogeneity of European States interests made possible, as soon as 1977, the signature of the European Convention on the Suppression of Terrorism.5 One should however stress that this Convention does not offer a comprehensive definition of terrorism, since its objective is of a procedural nature (i.e. the prosecution of terrorist acts by Contracting Parties). It draws up a list of terrorist acts defined either autonomously or by reference to international conventions.6 The
3 Convention on Offences and Certain Other Acts Committed on Board Aircraft (signed at Tokyo on 14 September 1963), Convention for the Suppression of Unlawful Seizure of Aircraft (signed at the Hague on 16 December 1970), Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (signed at Montreal on 23 September 1971), Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (adopted by the General Assembly of the United Nations on 14 December 1973), International Convention against the Taking of Hostages (adopted by the General Assembly of the United Nations on 17 December 1979), Convention on the Physical Protection of Nuclear Material (signed at Vienna on 3 March 1980), Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (signed at Montreal on 24 February 1988), Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (done at Rome on 10 March 1988), Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (done at Rome on 10 March 1988), Convention on the Marking of Plastic Explosives for the Purpose of Detection (signed at Montreal on 1 March 1991), International Convention for the Suppression of Terrorist Bombings (adopted by the General Assembly of the United Nations on 15 December 1997), International Convention for the Suppression of the Financing of Terrorism (adopted by the General Assembly of the United Nations on 9 December 1999), available at http://untreaty.un.org/English/ Terrorism.asp. 4 The General Assembly and the Security Council of the United Nations were very active in this field. The General Assembly and the Security Council have to date adopted respectively 24 and 21 resolutions on terrorism. 5 European Convention on the Suppression of Terrorism, signed at Strasbourg on 27 January 1977, available at http://conventions.coe.int/ 6 According to Article 1 of the European Convention on the Suppression of Terrorism: For the purposes of extradition between Contracting States, none of the following offences shall be regarded as a political offence or as an offence connected with a political offence or as an offence inspired by political motives: (a) an offence within the scope of the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970; (b) an offence within the scope of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 23 September 1971; (c) a serious offence involving an attack against the life, physical integrity or liberty of internationally protected persons, including diplomatic agents; (d) an offence involving kidnapping, the taking of a hostage or serious unlawful detention; (e) an offence involving the use of a bomb, grenade, rocket, automatic firearm or letter or parcel bomb if this use endangers persons; (f) an attempt to commit any of the foregoing offences or participation as an accomplice of a person who commits or attempts to commit such an offence.. The

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European Convention on the Suppression of Terrorism is the first to address a wide spectrum of terrorist acts and to impose on States the obligation not to consider them as political offences, offences connected with a political offence or as offences inspired by political motives.7 The European Unions Member States have all ratified the European Convention on the Suppression of Terrorism, which constituted for more than twenty-four years their sole common denominator in the field of terrorism.8 Finally, the 11th of September 2001 attacks set off major new developments. The importance of these dramatic events cannot be overstated, since the 1992 Treaty of the European Union had already provided the legal basis for an action of the Union in this field.9 The European Parliament was the only E.U. institution having addressed the question of terrorist offences definition10 before the 11th of September 2001.

definition of the offences listed at Article 1 (c) to (e) emphasizes the danger represented by the use of certain means for committing a crime and it does not take into account the specific intention required for a terrorist offence. Hence, it does not represent a proper definition of terrorist acts.
7 It is only in the late 90s that similar provisions appear in international conventions on terrorism. The International Convention for the Suppression of the Financing of Terrorism, which provides in its Article 2 a list of terrorist acts whose funding is prohibited, requires Contracting Parties to ensure that criminal acts within the scope of this Convention are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature (Article 6 of the Convention). A similar provision can be found in Article 5 of the International Convention for the Suppression of Terrorist Bombings. 8 A Convention relating to Extradition between Member States of the European Union was also adopted in 1996 (1996 O.J. (C 313) 12). This convention does not deal specifically with terrorism, its objective being to improve the judicial cooperation between Member Stats in criminal matters in general. It is worth stressing that, by simplifying the extradition procedures between Member States, this Convention facilitates the application of the Council of Europe Convention on the Suppression of Terrorism. 9 According to Article K.1 of the Maastricht Treaty, For the purposes of achieving the objectives of the Union, in particular the free movement of persons, and without prejudice to the powers of the European Community, Member States shall regard the following areas as matters of common interest: [...] (9) police cooperation for the purposes of preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime, including if necessary certain aspects of customs cooperation, in connection with the organization of a Union-wide system for exchanging information within a European Police Office (Europol). (emphasis added). 10 European Parliament Recommendation on the Role of the European Union in Combating Terrorism, U.N. Doc. A5-0273/2001 of 5 September 2001, 2002 O. J. (C 72) 135, 135-141. The definition proposed in this Recommendation was vague. The Recommendations only added value was its call to the Council of the European Union to adopt a framework decision establishing a definition of terrorist offences.

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B. Legal Basis for E.U. Intervention I. Institutional Context Article 29 TEU mentions the establishment of a space of freedom, safety, and justice as one of the E.U.s objectives. In particular, this implies the development of an effective fight against terrorism at the European level. The Union has several tasks to fulfill11 and a variety of instruments12 at its disposal, an emphasis being laid upon the approximation of Member States criminal laws in accordance with Article

11 See Article 29 TEU: Without prejudice to the powers of the European Community, the Union's objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters and by preventing and combating racism and xenophobia.

That objective shall be achieved by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud, through: - closer cooperation between police forces, customs authorities and other competent authorities in the Member States, both directly and through the European Police Office (Europol), in accordance with the provisions of Articles 30 and 32, - closer cooperation between judicial and other competent authorities of the Member States including cooperation through the European Judicial Cooperation Unit (Eurojust), in accordance with the provisions of Articles 31 and 32, - approximation, where necessary, of rules on criminal matters in the Member States, in accordance with the provisions of Article 31(e).
12 See Article 34(2) TEU: The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may:

(a) adopt common positions defining the approach of the Union to a particular matter; (b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect; (c) adopt decisions for any other purpose consistent with the objectives of this title, excluding any approximation of the laws and regulations of the Member States. These decisions shall be binding and shall not entail direct effect; the Council, acting by a qualified majority, shall adopt measures necessary to implement those decisions at the level of the Union; (d) establish conventions which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements. Member States shall begin the procedures applicable within a time limit to be set by the Council.

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31(1)(e) TEU.13 This provision expressly mentions terrorism as one area where minimal rules on the constitutive elements of crimes and on sanctions should be adopted by the European Union. The need for approximation of national criminal laws on terrorism is also recalled at point 46 of the Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice, adopted by the Justice and Home Affairs Council of 3 December 1998.14 At its extraordinary meeting on 21 September 2001, convened in the aftermath of the 11 September 2001 attacks, the European Council reached an agreement on the necessity of a European definition of terrorism. It gave instructions15 to the Justice and Home Affairs Council to flesh out that agreement and to determine the relevant arrangements, as a matter of urgency and at the latest at its meeting on 6 and 7 December 2001.16 A Framework Decision was rapidly negotiated and adopted by the Council on 13 June 2002;17 31 December 2002 was agreed on as the deadline for transposition into national law.18 II. The Framework Decision According to Article 31(e) TEU, the E.U. resorts to framework decisions for approximating Member States criminal law. The legal regime of the framework

13

Article 31(1) TEU: Common action on judicial cooperation in criminal matters shall include: [...] (e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking. 1999 O. J. (C 19) 1

14 15

According to Juliet LODGE, these instructions constituted an unprecedented move, (since) the extraordinary European Council of Heads of Government that met on 21 September 2001 directed the Justice and Home Affairs Council to act as instructed. The choice of words for its conclusions is significant. Instead of the usual urges or recommends, the Heads of Government direct and instruct the relevant Council to act. Thus, not only has it assumed a legislative right of initiative, in effect, but also a right to side-step the usual legislative process. (Juliet Lodge, EC Securitisation and Terrorism: 2001-2002, in Miller and Zumbansen (eds.), Annual of German & European Law, Berghahn Books, Oxford and New York 2004, p. 246-286))

16 Conclusions and Plan of Action of the Extraordinary European Council Meeting of 21 September 2001, p. 2, available at http://ue.eu.int/Terrorisme/index.asp?LANG=1 17 Council Framework Decision of 13 June 2002 on Combating Terrorism U.N. Doc. 2002/475/JHA, 2002 O. J. (L 164) 3-7, hereinafter, the Framework Decision. 18 By the end of March 2004, only 8 Member States (Belgium, Italy, Austria, Portugal, Denmark, Finland, Sweden and the United Kingdom) had amended their national legislation to implement the Framework Decision (Agence Europe, n8675, 27 of March 2004, p. 6 and 7).

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decision19 is similar to that of directives under Community law,20 its main characteristic residing in the wide freedom of implementation granted to the Member States. The limits of this freedom vary and, as far as the definition of terrorist offences is concerned, they are quite narrow. Article 1(1) of the Framework Decision, for example, is written in a manner more reminiscent of an EC Regulation than of an EC Directive. The Council Framework Decision on Combating Terrorism aims at providing a uniform legal framework for prosecuting terrorist acts. It institutes a common definition of terrorist offences, as well as rules of competence and of legal cooperation between Member States for the prosecution of persons having committed terrorist acts. The Framework Decision thus constitutes the cornerstone of the fight of the European Union against terrorism. The Framework Decision was adopted in conformity with the subsidiarity principle which, in accordance with Article 2(2) TUE, governs the action of the E.U. in all areas where it does not enjoy exclusive competence.21 Indeed, as of 200,1 only six out of fifteen E.U. Member States22 had a separate incrimination for terrorist acts in their criminal law; other States were punishing terrorist acts as a common offence (infraction de droit commun).23 Moreover, the definitions of terrorist offences adopted in the six Member States were far from uniform. These legal gaps, together with the fact that all Member States had not ratified all the international

19

See Article 34(2)(b) TEU, supra note 12

20 Article 249(3) TEC : A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of forms and methods. 21 Article 2(2) TEU: The objectives of the Union shall be achieved as provided in this Treaty and in accordance with the conditions and the timetable set out therein while respecting the principle of subsidiarity as defined in Article 5 of the Treaty establishing the European Community. Article 5(2) TEC defines the principle of subsidiarity in these terms: In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. 22

France, Germany, Italy, Portugal, Spain, United Kingdom

23 See on this point the proposal for a Council framework decision on combating terrorism presented by the Commission, COM (2001) 521 final, 19 September 2001, p. 7, available at http://wwwdb.europarl.eu.int/oeil/oeil_ViewDNL.ProcedureView?lang=2&procid=5566

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conventions on terrorism,24 obviously created a context in which the objectives of the proposed action [could not] be sufficiently achieved by the Member States. Accordingly, the E.U.s intervention was entirely justified in the light of Article 2(2) TEU. The adoption of the Framework Decision also had the merit of satisfying the European Unions international obligations stemming from UN Security Council resolution 1373 (2001).25 C. Typology of Offences The ambitious objective of the Framework Decision is to provide a comprehensive definition of terrorism and thus to succeed in an area where international law has by and large failed. For the first time, a single instrument provides the incrimination of terrorist acts listed beforehand in twelve different international conventions as well as the incrimination of a new category of terrorist activities, namely, the acts relating to a terrorist group. The Framework Decision covers terrorist acts committed against European Unions institutions and Member States and terrorist acts targeting third countries or other international organisations. An additional condition is added for the application of the Framework Decision to the latter case: terrorist acts targeting a third country or an international organisation must be perpetrated on the E.U.s territory, by a European national/resident or for the benefit of a legal person established in the E.U.26 Moreover, the Framework Decision does not differentiate international

24The state of ratification of the international conventions on terrorism by the EUs Member States is reflected in their reports to the Committee created by the Security Council resolution 1373 (2001). These reports are available at http://www.un.org/Docs/sc/committees/1373/submitted_reports.html

The fact that all Member States have not ratified all international conventions on terrorism, with the exception of the European Convention on the Suppression of Terrorism, which does not offer a comprehensive definition of terrorism, represents a proof of the respect of the subsidiarity principle.
25 The Framework Decision implements point 1 letters a), b) and d) of this resolution, in which the Security Council 1. (d)ecides that all States shall: (a) Prevent and suppress the financing of terrorist acts; (b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts; [] (d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons. (resolution 1373 (2001) adopted by the Security Council on 28 September 2001). 26

For rules on jurisdiction see Article 9 of the Framework Decision.

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terrorist acts from purely national ones.27 The distinction between these two types of terrorism is indeed of no relevance for the definition of terrorist offences, and has to be taken into account only with respect to the exercise of jurisdiction, an issue addressed by Article 9 of the Framework Decision. The Framework Decision distinguishes three types of offences: terrorist offences (Article 1), offences relating to a terrorist group (Article 2), and offences linked to terrorist activities (Article 3). According to Article 4, inciting, aiding or abetting, and attempting to commit one of the offences referred to in Articles 1 to 3 must also be incriminated in national law. I. Terrorist offences The offences listed in Article 1 form the basis for the definition of all offences mentioned by the Framework Decision: offences mentioned in Articles 2 to 4 require a connection with an Article 1 offence. Under Article 1 of the Framework Decision, the terrorist offence is characterised by two objective elements (incrimination under national law and effective or potential consequences)28 and a subjective one (the aim of: seriously intimidating a population, unduly compelling a Government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental structures of a country or an international organisation.). In order for an act to be qualified as a terrorist offence under the Framework Decision, judicial authorities thus have to answer the following three questions: a) Is the act at stake already incriminated under national law? b) By its nature or context, does the act seriously damage a country or an international organisation? c) Was the act committed for one of the aforementioned aims? 1. First Objective Element of the Terrorist Offence: Incrimination Under National Law By requiring incrimination under national law, the Commission and the Council ensured that the Framework Decision would respect both the subsidiarity principle
27 The Commission underlined in its explanatory memorandum to the proposal for a Council Framework Decision (supra note 23, at 2) that : This proposal does not relate only to acts of terrorism directed at Member States. It also applies to conduct on the territory of the European Union which can contribute to acts of terrorism in third countries. This reflects the Commissions commitment to tackle terrorism at a global as well as European Union level. 28

Seriously damage a country or an international organisation

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and warrant criminal laws accessibility, as required by the European Convention on Human Rights.29 The list of acts which Member States are required to incriminate under their national law is provided in Article 1.30 This list bears the mark of the legacy of the twelve international conventions on terrorism. It nevertheless departs from them on several occasions. Three types of terrorist offences can consequently be distinguished: offences corresponding to the offences listed in the different

29 See European Court of Human Rights judgement in the Sunday Times case, 26 April 1979, A no 30 at 49 the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. 30

Article 1(1): Each Member State shall take the necessary measures to ensure that the international acts referred to below in points (a) to (i), as defined as offences under national law, which, given their nature or context, may seriously damage a country or an international organisation where committed with the aim of:

- seriously intimidating a population, or - unduly compelling a Government or international organisation to perform or abstain from performing any act, or - seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation, shall be deemed to be terrorist offences: (a) attacks upon a persons life which may cause death; (b) attacks upon the physical integrity of a person; (c) kidnapping or hostage taking; (d) causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss; (e) seizure of aircraft, ships or other means of public or goods transport; (f) manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of biological and chemical weapons; (g) release of dangerous substances, or causing fires, floods or explosions the effect of which is to endanger human life; (h) interfering with or disrupting the supply of water, power or any other fundamental natural resource the effect of which is to endanger human life; (i) threatening to commit any of the acts listed in (a) to (h).

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conventions,31 offences defined more largely than in the international conventions,32 and offences incriminated in the different conventions but apparently missing from Article 1 of the Framework Decision.33 However, a thorough analysis of the Framework Decision makes clear that this last category of offences is also covered. Whereas the theft or robbery of nuclear material, incriminated in Article 7 of the Convention on the Physical Protection of Nuclear Material, is not listed in Article 1 of the Framework Decision, it is dealt with under Article 3, which requires Member States to take the necessary measures to ensure that [are incriminated under national law](a) the aggravated theft with a view to committing one of the acts listed in Article 1(1); (b) extortion with a view to the perpetration of one of the acts listed in Article 1(1). The capture of fixed platforms, incriminated in Article 2(1)(a) of the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, can equally be broke down into acts mentioned by the
31 Article 1(1)(a) and (b) correspond to offences mentioned in the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation and its Protocol, the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and its Protocol, the International Convention for the Suppression of Terrorist Bombings. The definition of the offence incriminated in Article 1(1)(c) is similar to the definitions established by the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents and the International Convention against the Taking of Hostages and the definition of the Article (1)(g) offence corresponds to offences included in Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, the Convention on the Physical Protection of Nuclear Material or the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and its Protocol, the International Convention for the Suppression of Terrorist Bombings. 32 The Article 1(1)(d) offence is drafted in wider terms than similar offences dealt with under the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation or in its Protocol, in the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation or in its Protocol, in the International Convention for the Suppression of Terrorist Bombings or in the Convention on the Marking of Plastic Explosives for the Purpose of Detection. The same can be said about Article 1(1)(e) (corresponding to certain offences incriminated in the Convention for the Suppression of Unlawful Seizure of Aircraft and in the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation), (f) (in comparison with offences present in the Convention on the Physical Protection of Nuclear Material, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, the Convention on the Marking of Plastic Explosives for the Purpose of Detection). The Article 1(1)(h) offence does not match any offence existing in the international conventions on terrorism. 33

Theft or robbery of nuclear material, incriminated in Article 7 of the Convention on the Physical Protection of Nuclear Material; capture of fixed platforms, incriminated in Article 2(1)(a) of the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf

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Framework Decision. The interests protected by the incrimination of the capture of the fixed platform are indeed linked to: the integrity of the platform: the acts likely to affect it are covered either by Article 1(1)(d), or by Article 1(1)(g); the physical protection of the people on the platform, which is addressed by Article 1(1)(a) and (b); the supplying of the rest of the country with natural resources exploited on the platform, which represents an interest protected via Article 1(1)(h). We can consequently consider that all terrorist acts prohibited by the international conventions on terrorism are also covered by the Framework Decision. However, the Framework Decision is not a mere consolidation of existing international treaties, since its scope is wider than the one covered by them. This difference originates from the "horizontal" nature of the Framework Decision which, in comparison with the international conventions, is not concerned with specific acts or forms of terrorism, but intends to seize all facets of a proteiform phenomenon. It is however worth emphasizing that the Framework Decision subordinates the qualification of an act as a terrorist offence to the existence of certain aims and consequences. The Framework Decision could thus be compared with a fishers net which would be broader than the international conventions net (in that it covers a larger spectrum of terrorist acts) but whose meshes would be wider (seriousness and specific aim criteria). This approach reduces the risk of a politically oriented, and thus potentially abusive, use of the terrorist offences regime. 2. Second Objective Element of the Terrorist Offence: The Consequences of the Act The second objective element ensures that the Framework Decision differentiates terrorist offences from less serious offences constituted by the same material element. It resides in the seriousness of an acts consequences on a country or an international organization.34 The Commission was widely criticised for having indicated, in the explanatory memorandum of its proposal of the Framework Decision,35 that acts of urban violence"36 could be encompassed by this criterion. Furthermore, the consequences
34 EUs Member States have always been determined not to qualify minor acts as terrorist acts and have tried to promote the same criminal policy at the international level. During the preparatory work of the International Convention for the Suppression of Terrorist Bombings, Germany militated in favour of the introduction, in the text of Article 2 of the convention, of the words of significant value after the words public of private property. The final version of this text refers to major economic loss, which is a compromise between the initial version and the German proposal. 35

The explanatory memorandum is not legally binding and is a mere introductory note of the Commissions proposal. Supra note 23, at 9

36

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of the act, which now constitute a distinct objective element in the definition of terrorist offences, were initially included in the intentional element and thus "subjectivised." The concrete or potential effects of the act (relatively easy to assess) were thus of no relevance since what mattered were the effects planned by the author of the act (obviously more difficult to determine). The final version of the text corrects these initial errors, since two additional criteria are introduced in the definition, and the consequences criterion is better drafted.37 These improvements are owed to Member States, which were probably aware of the harmful of consequences that the imperfections of the initial definition could have had in terms of legal safety.38 One could lament the fact that the European Parliament, the traditional guarantor of the respect of human rights by the E.U., did not deem it necessary to suggest on this point an amendment to the Commissions proposal.39 3. Subjective Element of the Terrorist Offence The Framework Decision requires a specific intent40 for committing a terrorist offence and leaves aside the motive, (religious, political or other) having

37 The Commissions proposal (supra note 23, at 17) was drafted in these terms: Each Member States shall take the necessary measures to ensure that the following offences, defined according to its national law, which are intentionally committed by an individual or a group against one or more countries, their institutions or people with the aim of intimidating them and seriously altering or destroying the political, economic, or social structures of a country, shall be punishable as terrorist offences (emphasis added). The subjectivisation of the consequences criterion is more evident in the French version of the text: Chaque Etat member prend les measures necessaries pour faire en sorte que les infractions suivantes, dfinies par son droit national, commises intentionnellement par un individu ou un groupe contre un ou plusieurs pays, leurs institutions ou leur population, et visant les menacer et porter gravement atteinte ou dtruire les structures politiques, conomiques ou socials dun pays, soient sanctionnes comme des infractions terroristes (emphasis added). 38 See the press release following the discussions in the Council on the Framework Decision, U.N. Doc. PRES/01/444 of 6 December 2001: When defining terrorist aims, the Council opted for a wording that strikes a balance between the need to punish terrorist offences effectively and the need to guarantee fundamental rights and freedoms, ensuring that the scope could not in any circumstances be extended to legitimate activities, for example trade union activities or anti-globalisation movements. 39 See the Report of the European Parliament on the Commission proposal for a Council framework decision on combating terrorism (U.N. Doc. A5-0397/2001 final of 14 November 2001). Under Article 39 TEU, the Parliament has a mere consultative role in Title VI procedures (Provisions on Police and Judicial Cooperation in Criminal Matters), which implies that the Council is not bound by its opinion. 40 Seriously intimidating a population, or unduly compelling a Government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.

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determined the individual to perpetrate it.41 II. Offences Rrelating to a Terrorist Group Article 2(1) of the Council Framework Decision gives a definition of the terrorist group42 and states that Member States shall make punishable the direction of and participation in the activities of such a group.43 This provision largely draws on the criminal organisation definition already endorsed by the Council in its Joint action of 21 December 1998 on making it a criminal offence to participate in a criminal organisation in the Member States of the E.U.44 However, the Framework Decision further refines this definition. The structured association concept is defined by the Framework Decision with reference to the

41 The typology of motives is not relevant for the definition of terrorist offences. The UN Special Rapporteur on terrorism and human rights, Mrs. Kalliopi K. Koufa, underlines it in her additional report of 8 August 2003 : In any event, while broad or general categorizations can hardly reach precision and do full justice to the variety and complexity of the terrorist phenomena, attempts to devise analytical and more sophisticated subdivisions and distinctions providing more precise delimitations of, or information on, subgroups of terrorism such as their organizational structure, size, potential relationships with States and degrees of such relationship, their identity, characteristics, social, political, cultural and psychological motivations, and so forth are too complicated and diverse and, above all, they only serve the needs of a particular user. As useful as they are for illuminating particular aspects of the phenomena of terrorism and of terrorists, and for contributing to our understanding of the wide-ranging nature of the problmatique surrounding them, they are of little utility in identifying exactly what constitutes terrorism and who the terrorists are. (Additional Progress Report Prepared by Ms. Kalliopi K. Koufa, Special Rapporteur on Terrorism and Human Rights, Sub-Commission on the Promotion and the Protection of Human Rights, U.N. Doc. no E/CN.4/Sub.2/2003/WP.1 13 (2003)). 42 For the purposes of this Framework Decision, terrorist group shall mean : a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist offences. Structured group shall mean a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure This definition is arguably clearer and more precise than the one proposed by the US State Department in its introduction to Patterns of Global Terrorism, 1999 : The term terrorist group means any group practicing, or that has significant subgroups that practice, international terrorism, available at

http://www.state.gov/www/global/terrorism/1999report/1999index.html
43 This incrimination of the participation in a terrorist group is very similar to the infractions defined in Article 2(1) of the International Convention for the Suppression of the Financing of Terrorism. 44 Article 1 thereof provides that a criminal organisation is : [a] structured association, established over a period of time, of more than two persons, acting in concert with a view to committing offences which are punishable (1998 O.J. (L 351) 1). It is worth noting that the Joint action specifically refers in its preamble to terrorism as one of the forms of organised crimes whose seriousness and development requires a strengthening of cooperation between the EU Member States.

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intent of the terrorist offences author and to the associations composition. The structured association is in both cases defined by negations. One can infer from the fact that it is not randomly formed for the immediate commission of an offence that one of its criteria is the premeditation of the terrorist offence. With respect to the structured associations second criterion, a per a contrario interpretation of the text leads to the conclusion that any conspiracy in crime falls within the Framework Decisions scope of application, even in the absence of a hierarchy or of a constant composition of the criminal association. The Framework Decision thus opts for a wide definition of the structured association, which encompasses any informal structures purporting to commit a terrorist offence. In order to avoid sanctioning any individual associated with the group, Article 2(2) of the Framework Decision requires that the person accused of an offence relating to a terrorist group has acted with knowledge of the fact that such participation will contribute to the criminal activities of the terrorist group. Another subjective element, and therefore difficult to prove, is thus included in the offences definition. It will be up to national authorities to demonstrate the group members knowledge of the nature of its activities. III. Offences linked to terrorist activities Offences linked to terrorist activities that are listed in Article 3 of the Framework Decision,45 were not mentioned in the Commissions proposal. They were added by the Council and constitute an innovation with regard to international precedents.46 This amendment can certainly be explained by the Member States will to be enabled to prevent terrorist acts from their earliest stages. The implementation of Article 3 could prove to be problematic since its scope of application is difficult to assess. To take but one example, the establishment of forged documents in order to prepare a terrorist offence constitutes an offence hardly distinguishable from the complicity of a terrorist offence, which is dealt with under Article 4.

45 Article 3: Each Member State shall take the necessary measures to ensure that terrorist-linked offence include the following acts: (a) aggravated theft with a view to committing one of the acts listed in Article 1(1); (b) extortion with a view to the perpetration of one of the acts listed in Article 1(1); (c) drawing up false administrative documents with a view to committing one of the acts listed in Article 1(1) (a) to (h) and Article 2(2) (b). 46

An exception can be found in Article 7(1) of the Convention on the Physical Protection of Nuclear Material which incriminates the theft or robbery of nuclear materials as such. This provision thus does not concern only terrorism.

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IV. Incitement, complicity, attempt The Framework Decision presents some lacunae with respect to the incrimination of incitement, complicity and attempt.47 Whereas terrorist offences and offences linked to terrorist activities are very precisely defined, the same can unfortunately not be said for the concepts of incitement, complicity and attempt, whose definitions are left to Member States. Consequently, the distinction between different types of offences (notably between participation in the activities of a terrorist group and complicity) is blurred. According to Article 2(2)(b) of the Framework Decision, an individual participates in the activities of a terrorist group if he supplies information or material resources [or funds] its activities in any way, with knowledge of the fact that such participation will contribute to the criminal activities of the terrorist group. One is thus left to wonder on the offences that are covered by the incrimination of complicity. However, it should be stressed that these critics also apply for all the international conventions dealing with terrorism. D. Authors of the offences listed in the Framework Decision The Framework Decision covers the entire spectrum of private law persons who can be implied in the perpetration of terrorist acts.48 Article 1 concerns individuals, Article 2 terrorist groups, who are not legal entities but de facto associations,49 and Article 7 establishes the regime of liability for legal persons.50 The national
47 Article 4: 1. Each Member State shall take the necessary measures to ensure that inciting or aiding or abetting an offence referred to in Article 1(1), Articles 2 or 3 is made punishable.

2. Each Member State shall take the necessary measures to ensure that attempting to commit an offence referred to in Article 1(1) and Article 3, with the exception of possession as provided for in Article 1(1)(f) and the offence referred to in Article 1(1)(i), is made punishable.
48 With regard to the victims covered by the Framework Decision, Article 1(1) thereof specifies that the main victim shall be a State or an international organisation. Provided that this condition is fulfilled, the Framework Decision also applies where damages are caused to private interests, to the extent that they endanger human life or result in major economic loss (Article 1(1)(d)) and under the condition that they seriously damage a country or an international organisation. This narrower scope of application stems from the fact that the Framework Decision is not concerned with the protection of victims, but rather with the repression of authors of terrorist acts. 49 Terrorist groups cannot be directly sanctioned, since they do not exist, from a legal perspective. States can prosecute and sanction the members of the groups, members who are legal persons or individuals. 50 According to Article 7(1) of the Framework Decision, Member States shall take necessary measures to ensure that legal persons can be held liable for any of the offences referred to in Articles 1 to 4 committed for their benefit by any person, acting either individually or as a part of an organ of the legal person, who has a leading position within the legal person, based on one of the following: (a) a power of

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implementation of this last provision calls for substantial legislative amendments in a number of Member States. If criminal responsibility for legal persons is not new in common law countries,51 it is indeed less common in continental law ones. Furthermore, acts of terrorism attributable to international law subjects are not expressly mentioned in the Framework Decision. This feature does not prevent some authors from considering that this form of terrorism is also covered by the Framework Decision,52 since the principle of liability of legal persons established by Article 7 would be equally applicable to States actively involved in terrorist acts. To support this conclusion, these authors base themselves on the Preamble of the Framework Decision, which specifically excludes activities of armed forces from its field of application.53 A per a contrario interpretation enables them to conclude that any other State act is covered by the Framework Decision.54 Yet, Articles 7 and 8 of the Framework Decision make it clear, in our view, that the Council did not intend to cover State terrorism. According to Article 7(1), a legal person can be held liable for terrorist acts only when these acts are committed for its benefit by a person occupying a leading position within the legal person, on a basis explicitly mentioned in the text. In laying down these criteria, the Framework
representation of the legal person; (b) an authority to take decisions on behalf of the legal person; (c) an authority to exercise control within the legal person. Member States have to insure also that legal persons are held liable where the lack of supervision or control by a person referred to in paragraph 1 has made possible the commission of any offences referred to in Articles 1 to 4 for the benefit of that legal person by a person under its authority (Article 7(2) of the Framework Decision).
51 Denmark and Netherlands are two of the rare continental countries establishing criminal liability for legal persons (see John C. Cofee, Corporate Criminal Liability : An Introduction and Comparative Survey in ALBIN ESER, ET AL., CRIMINAL RESPONSIBILITY OF LEGAL AND COLLECTIVE ENTITIES. INTERNATIONAL COLLOQUIUM BERLIN 1998 21-24 (Freiburg 1999)). 52

See Steve Peers, EU Responses to Terrorism, 52 INTL & COMP. L. Q. 234 (2003) the definition of the legal persons [by the Framework Decision] does not exclude states or international organisations.

53 Paragraph 11 of the Framework Decisions Preamble: Actions by armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of these terms under that law, and, inasmuch as they are governed by other rules of international law, actions by the armed forces of a State in the exercise of their official duties are not governed by this Framework Decision. 54 Supra note 52, at 234 : The scope of exclusion is expressly limited to actions of any armed forces governed by international humanitarian law or State armed forces governed by other rules of international law, with the obvious underlying assumption that there should be no legal vacuum enabling acts of political violence to escape from legal control. Other acts by states, for example financing terrorist groups as defined by the Framework Decision, fall outside of the scope of the exclusion and so it could be argued that such acts by a state should be considered terrorist acts and punished accordingly, subject to any state immunity which might arguably exist in such circumstances.

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Decision undoubtedly inspired itself from private law concepts.55 These criteria are inapplicable to situations like Lockerbie, the classical case of State terrorism.56 The sanctions applicable to legal persons established by the Framework Decision57 are also inspired from national criminal or commercial law.58 It is difficult to envisage the enforcement of such sanctions on States organs or on States themselves. Moreover, the incrimination of State terrorism can be decided only through traditional international conventions: neither the European Union, nor a State acting on its own is entitled to unilaterally regulate it. A different step would violate, as regards third States accused of terrorism, the principle of opposability of

55 Article 7(1): any person [] who has a leading position within the legal person, based on one of the following: (a) a power of representation of the legal person; (b) an authority to take decisions on behalf of the legal person; (c) an authority to exercise control within the legal person. These criteria are commonly used to determine whether a person can represent a legal entity in commercial or civil transactions. To compare with Article 4 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its fifty-third session (2001) : (1) The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State. (2) An organ includes any person or entity which has that status in accordance with the internal law of the State. 56 See also Nicaragua case, where, in spite of numerous links between the contras and the United States, the International Court of Justice refused to admit United States responsibility: The Court has taken the view [] that United States participation, even if preponderant and decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. (Military and Paramilitary Activities in and against Nicaragua, judgement on the merits, 1986 I.C.J. Y.B. 65, 115). This solution is easily transposable to terrorism cases where the acts are not committed by State agents. One has also to underline that, until now, no international judicial decision established Libyas international responsibility for having sponsored the Lockerbie terrorist acts. Libya admitted its own responsibility only in 2003 (see Security Council resolution 1506 (2003) of 12 September 2003). Nevertheless, the Security Council has also held liable Libya for these acts (see, e.g., point 2 of its resolution 748 (1992) of 31 March 1992 : the Libyan Government must commit itself definitively to cease all forms of terrorist action and all assistance to terrorist groups and that it must promptly, by concrete actions, demonstrate its renunciation of terrorism.). 57 According to Article 8 of the Framework Decision, penalties applicable to legal persons are (a) exclusion from entitlement to public benefit or aid; (b) temporary or permanent disqualification from the practice of commercial activities; (c) placing under judicial supervision; (d) a judicial winding-up order; (e) temporary or permanent closure of establishments which have been used for committing the offence. 58See for an analysis of sanctions applicable to legal persons, Gnther Heine, Sanctions in the Field of Corporate Criminal Liability, in ESER, supra note 51, at 237-254.

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the treaties enshrined in the Vienna Convention on the Law of Treaties.59 The Framework Decision is a European Union internal legal instrument and consequently cannot affect the legal patrimony of third States by laying down rules of criminal responsibility applicable to them for terrorist acts. This situation has obviously regrettable consequences for the victims who cannot always obtain reparation from States which have, for instance, financed acts of terrorism. The existence of compensation funds for the victims of the terrorist acts, already in place in certain States and under discussion at the E.U. level, could constitute a palliative, albeit not an entirely satisfying one. Within the limits imposed by international law, the Framework Decision accordingly addresses all categories of persons who can be linked to terrorism. E. Conclusion The definition of the offences relating to terrorism the Council Framework Decision provides is a welcome step. The Framework Decision adopts a horizontal approach of terrorism and establishes synthetic and precise definitions satisfying the requirements of legal safety the European Union and its Member States must respect.60 The limited uncertainty present in the definition of the complicity to terrorist offences or of the offences relating to a terrorist group does not, in our view, violate the European Convention on human rights.61 It is, after all, inherent to any legislative intervention in such a significant and evolutionary field as the fight against terrorism. The national judiciary authorities will have to take on the task of filling the few gaps in the definitions established by the Framework Decision, provided of course that all Member States duly transpose it into national law.
59 See Article 34 of the Vienna Convention on the Law of Treaties (1969): A treaty does not create either obligations or rights for a third State without its consent. 60 According to the European Court of Human Rights case-law, laws have to be accessible, clear and precise, for individuals to be able to predict when they will violate them. In the Sunday Times judgement supra note 29, the Court held that a norm cannot be regarded as a law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice. (paragraph 49 of the judgment). 61 The European Court of Human Rights considered that the condition of predictability of the law does not require a presentation in detail of all facts engaging the criminal liability. See the Mller judgment, 24 May 1988, A no 133, paragraph 29 :The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague.

SPECIAL ISSUE Interview with Federal Constitutional Court Vice President, Justice, Professor Winfried Hassemer The State is No Longer the Leviathan
By Reinhard Mller*

[This interview, conducted by Dr. Reinhard Mller in Frankfurt, was originally published, in German, in the Frankfurter Allgemeine Zeitung (FAZ) on 22 April 2004. A professor at Frankfurt University, Winfried Hassemer has been Vice-President of the Bundesverfassungsgericht (BVerfG Federal Constitutional Court) and chairperson of its Second Senate since April 2002. He teaches criminal law, which is also his specialty in the Second Senate. From 1991 to 1996 he served as the Datenschutzbeauftragter (Public Data Protection Ombudsperson) for the state of Hessen; thereafter he was elected to the Federal Constitutional Court, having been nominated by the Social-Democratic Party (SPD). This translation was made by German Law Journal Co-Editor, Florian Hoffmann, and Co-Editor in Chief, Russell Miller. We are very grateful to Dr. Reinhard Mller and the FAZ for allowing us to translate and publish the interview in German Law Journal.]

MLLER: Is the Rechtsstaat (state governed by the rule of law) ready for fight against terrorism? Vice President Hassemer: As far as the legal prerequisites are concerned, I believe it is. MLLER: Is this also true with respect to the criminal law in particular, for example, in relation to the objectives of punishment? Can suicide-bombers be deterred?

Dr. Reinhard Mller, Editor, Frankfurter Allgemeine Zeitung, http://www.faz.de

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Vice President Hassemer: Suicide-bombers probably can not be deterred. What would be an appropriate deterrent? It does not seem to me a question of the criminal law. They would not be deterred by a different criminal law either. MLLER: And they also could not be re-socialized, could they? That, in any case, is one purpose of imprisonment. Vice President Hassemer: Since suicide-bombers appear to be, in the main, ideologically motivated, they should, in principle, also be amenable to resocialization; it would at least have to be attempted. MLLER: You state that our current law is sufficient. However, there seems to be an extraordinary threat, and we are hearing calls for extraordinary legal instruments to deal with the situation. In some countries, including Rechtsstaat democracies, this is already happening. Catch phrases such as Guantanamo, or preventive detention as applied in the United Kingdom, spring to mind. Is there a danger that such developments might spill over to us, as is already apparent in some criminal trials? Vice President Hassemer: One can never be safe from such danger. Yet, my impression so far has been that the courts which have had to deal with these issues have remained steadfast with respect to the European legal tradition. In my view, the fundamental question is how much violence, as well as how many infringements upon basic rights can still be absorbed by the law, and where that thin line is located beyond which we consider a threat to be insoluble by legal means. On that level, citizenship-based criminal law becomes law used to punish the enemy, and law, as such, becomes war. MLLER: And are you occasionally concerned that in the current discussion, this line is beginning to be reached? Vice President Hassemer: Yes, I am concerned. With the intensity of the threat growing, this limit is being tested. And, there are certainly now a good number of people who feel that the present threat is so close and so terrible that old inhibitions should be set aside. MLLER: Then we should be particularly concerned if there was a terrorist threat in Germany? Vice President Hassemer: I am constantly thinking about this. It is one thing to reflect on whether there is reason for concern. I would say that there is reason for concern. Yet, it is quite another thing to evaluate whether the limit is publicly and

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effectively questioned. Here there is always the secondary phenomenon of public discussion on the limits of the rule of law. Spectacular occurrences such as the torture-incident in Frankfurt heat up that discussion.1 Suddenly, people start asking: are we still sufficiently prepared? And do we not artificially weaken or blind ourselves? MLLER: Is not the discussion on freedom and security based on premises which are no longer tenable today? Does the citizen still, as in an absolutist state, have to defend himself against public power? Or have the weights not shifted? Vice President Hassemer: Yes, the weights have shifted. I believe, indeed, that the role of the state has changed in the perception of its citizens. The state is no longer the Leviathan, that is, an entity at once threatening and nurturing. The state has left that role behind. Instead, the state has become, so to speak, civilized. Citizens no longer see the state as a cause of risks, but see risks as originating outside of the state, from third parties. And they see the state as a possible partner, a potential ally in overcoming these risks. And I believe that this changes the discussion on freedom and security insofar as that which is being claimed is no longer freedom against, but rather security from the state. The role of the state has, hence, and on account of this tension between freedom and security, changed in both directions. One can certainly say of this tension between freedom and security that, at the present moment, the weight has shifted towards security; and an end of that shift is, in my view, not in sight. MLLER: Does this also mean that certain basic rights are no longer that important to citizens; take, for example, those on Datenschutz (data protection)? Have some of the rights which were initially, and with good reason, interpreted as negative (liberty) rights, changed their character in light of todays circumstances? Vice President Hassemer: On the face of it, it would, indeed, seem as if some rights, such as those relating to data protection, are no longer seen as indispensable basic rights. One may recall, in this context, the discussions in the 1980s, which led to the creation of data protection ombudspersons, and of a fundamental right to informationelle Selbstbestimmung (informational self-determination). If one attempts

1 Referring to a notorious incident in 2002, in which the Frankfurt Chief of Police was accused of having used improper methods potentially amounting to torture -- on the main (and only) suspect of the abduction of Jacob von Metzler, son of the owner of a well-known Frankfurt private bank, in order to extract a confession on the whereabouts of the boy. The latter was subsequently found murdered, and the suspect, Magnus Gfgen, was tried by the Frankfurt District Court and sentenced to lifeimprisonment later that year; it was during the trial that his defense team alleged improper conduct by the Police-Chief, triggering a criminal investigation, as well as widespread discussion of the issue.

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to transpose those discussions onto todays plane, one finds that the circumstances have changed significantly. I do not think that the citizenry would take to the streets today to demonstrate for a right to privacy or to data protection. I also believe that the nature of privacy as such has changed. Watching, for example, some television programs, one has the impression that a good number of people actually take pleasure in relinquishing at least aspects of their privacy. There ought to be public debate on why this is so. But these changes are an undeniable fact, take only, for example, our current use of public or cellular phones. What was previously considered to be privacy, notably an intimate space surrounded by social taboos, has fundamentally changed. I am not saying that it has necessarily changed to the worse, but it has changed. MLLER: Speaking of telecommunications, is this also true with regard to electronic eavesdropping? Vice President Hassemer: Yes, these are tectonic changes. The issue is not merely one of risk perception, social control, or security, but also of a changed attitude of individuals to their environment. MLLER: You just said that you merely acknowledge these changes, rather than judge them. Yet, as a Justice of the Federal Constitutional Court, one has to say stop at some stage. On the other hand, of course, this changed perception surely does influence the law. Vice President Hassemer: What we are talking about here is, so to speak, not yet a judicially settled area. If people deal with their privacy in a different manner, this will certainly eventually have some bearing on how we define informational selfdetermination; however, there are still a good many further steps to be taken before we can think about interfering in constitutionally guaranteed basic rights. That said, it is, of course, true that a changed attitude toward privacy is, in time, bound to give the basic right to informational self-determination a different color. Yet, this does not have anything to do with security or control, but with intimacy and its visualization. MLLER: Is there a danger that Karlsruhe2 interprets basic rights with too great an emphasis on the individual? Vice President Hassemer: The danger that basic rights are subjectivized is certainly present. There is, however, the inverse danger that basic rights are too much seen
2

Seat of the Federal Constitutional Court (the Editors).

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from a community perspective. During the Nazi-era, the individual was precisely sidelined in favor of the community, and, with it also (individual) basic rights. Danger looms on either extreme. Yet, I believe that the Federal Constitutional Court has not succumbed to that danger. It has consistently held that, on one hand, the individual has a right to be left alone, and that, on the other hand, as social animals, the individuals rights are qualified by the rights of others. MLLER: The Federal Constitutional Court is not bound by its own precedent. Yet, at the same time, it has to care for the coherence of the law across time. Is this a big tension? Vice President Hassemer: It is a big tension, and a big problem. We have a tradition, which presupposes codification. One ought not bind oneself strictly to precedent, as one would thereby proactively help to bring about an inflexible petrification of the law. One has to have the possibility to change the jurisprudence, and we have time and again done so. MLLER: And what does this mean for the parliament? Should the circumstances change, must it follow the Courts decision and wait until the case reaches Karlsruhe again? Vice President Hassemer: No, the parliament must act on its own, and it must respond to social change. And in doing so, it does not have to ask the Federal Constitutional Court for prior permission. The parliament is, itself, an interpreter of the constitution.

SPECIAL ISSUE An Interview with Giorgio Agamben

By Ulrich Raulff*

[This interview, conducted by Ulrich Raulff in Rome on 4 March 2004, was originally published, in German, by the Sddeutsche Zeitung on 6 April 2004. This translation was made by Morag Goodwin, EUI, Florence. All notes have been provided for this publication by the editors.]

Raulff: Your latest book The State of Exception has recently been published in German. It is an historical and legal-historical analysis of a concept that we, at first blush, associate with Carl Schmitt. What does this concept mean for your Homo Sacer1 project? Agamben: The State of Exception belongs to a series of genealogical essays that follow on from Homo Sacer and which should form a tetralogy. Regarding the content, it deals with two points. The first is a historical matter: the state of exception or state of emergency has become a paradigm of government today. Originally understood as something extraordinary, an exception, which should have validity only for a limited period of time, but a historical transformation has made it the normal form of governance. I wanted to show the consequence of this change for the state of the democracies in which we live. The second is of a philosophical nature and deals with the strange relationship of law and lawlessness, law and anomy. The state of exception establishes a hidden but fundamental relationship between law and the absence of law. It is a void, a blank and this empty space is constitutive of the legal system. Raulff: You wrote already in the first volume of Homo Sacer that the paradigm of
* 1

Ulrich Raulff is the Culture Editor of the Sddeutsche Zeitung.

See, e.g., GIORGIO AGAMBEN, HOMO SACER: SOVEREIGN POWER AND BARE LIFE (Daniel Heller-Roazen trans., Stanford University Press 1998). Homo Sacer is, according to ancient Roman law, a human being that could not be ritually sacrificed but whom one could kill without being guilty of committing murder. Agamben uses the concept as the underpinning for a fresh decoding of the major political difficulty in our century: the rise of the worst sort of totalitarianisms, with Nazism at its apex.

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the state of exception came into being in the concentration camps, or corresponds to the camps. The indignant outcry of last year as you applied this concept to the United States, to American politics, was predictably loud. Do you still consider your critique to be correct? Agamben: Regarding such an application, the publication of my Auschwitz book2 brought similar remonstrance. But I am not an historian. I work with paradigms. A paradigm is something like an example, an exemplar, a historically singular phenomenon. As it was with the panopticon for Foucault,3 so is the Homo Sacer or the Muselmann or the state of exception for me. And then I use this paradigm to construct a large group of phenomena and in order to understand an historical structure, again analogous with Foucault, who developed his panopticism from the panopticon.4 But this kind of analysis should not be confused with a sociological investigation. Raulff: Nevertheless, people were shocked by your comparison because it seemed to equate American and Nazi policies. Agamben: But I spoke rather of the prisoners in Guantnamo, and their situation is legally-speaking actually comparable with those in the Nazi camps. The detainees of Guantanamo do not have the status of Prisoners of War, they have absolutely no legal status.5 They are subject now only to raw power; they have no legal existence. In the Nazi camps, the Jews had to be first fully denationalised and stripped of all the citizenship rights remaining after Nuremberg,6 after which they were also erased as legal subjects.
2

GIORGIO AGAMBEN, REMNANTS OF AUSCHWITZ: THE WITNESS AND THE ARCHIVE (reprint, Zone Books 2002).

3 See, e.g., MICHEL FOUCAULT, THE FOUCAULT READER 217 (Pantheon 1984) ([It was only] in the penitentiary institutions that Benthams utopia could be fully expressed in a material form. In the 1830s, the panopticon became the architectural program of most prison projects. It was the most direct way of expressing the intelligence of discipline ...). The panopticon consisted of a large courtyard, with a tower in the center, surrounded by a series of buildings divided into levels. 4

Id. at 212. ("... And, although the universal juridicism of modern society seems to fix limits on the exercise of power, its universally widespread panopticism enables it to operate, on the underside of the law, a machinery that is both immense and minute, ).

5 On 20 April 2004 the U.S. Supreme Court heard argument in cases seeking the determination of the legal status and judicial access of the Guantnamo detainees. See, e.g., Rasul v. Bush, No. 03-334 (D.C. Cir filed 2 Sept. 2003), cert. granted 124 S.Ct. 534 (2003). 6 The Nuremberg Laws, decreed at the 1934 Nazi Party Conference on Freedom included a law on citizenship, which deprived all those not of German blood of their rights as citizens. INGO MLLER, HITLERS JUSTICE 96-97 (Deborah Lucas Schneider trans., Harvard University Press 1991).

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Raulff: What do you understand the connection to be to Americas security policy? Does Guantnamo belong to the transition you have previously described from governance through law to governance through the administration of the absence of order? Agamben: This is the problem behind every security policy, ruling through management, through administration. In the1968 course at the Collge de France, Michel Foucault showed how security becomes in the 18th century a paradigm of government. For Quesnay, Targot and the other physiocratic politicians, security did not mean the prevention of famines and catastrophes, but meant allowing them to happen and then being able to orientate them in a profitable direction. Thus is Foucault able to oppose security, discipline and law as a model of government. Now I think to have to have discovered that both elements law and the absence of law and the corresponding forms of governance governance through law and governance through management are part of a double-structure or a system. I try to understand how this system operates. You see, there is a French word that Carl Schmitt often quotes and that means: Le Roi reigne mail il ne gouverne pas (the King reigns but he does not govern). That is the termini of the double-structure: to reign and to govern. Benjamin brought the conceptual pairing of schalten and walten (command and administer) to this categorization. In order to understand their historical dissociation one must then first grasp their structural interrelation. Raulff: Again, is the time of law over? Do we live now in an era of rule by decree (Schaltung), of cybernetic regulation and of the pure administration of mankind? Agamben: At first glance it really does seem that governance through administration, through management, is in the ascendancy, while rule by law appears to be in decline. We are experiencing the triumph of the management, the administration of the absence of order. Raulff: But do we not also observe, at the same time, the enlargement of the whole legal system and a tremendous increase in legal regulation? More laws are created on a daily basis and the Germans, for example, regularly feel that they are governed far more by Karlsruhe than Berlin.7 Agamben: Also there you see that both elements of the system coexist with one
7 Karlsruhe is the seat of the Bundesverfassungsgericht (BVerfG German Federal Constitutional Court) and the Bundesgerichtshof (BGH German Federal Court of Justice). For a sense of the judicializingpolitical meaning of Karlsruhe, see Gerhard Casper, The Karlsruhe Republic Keynote Address at the State Ceremony Celebrating the 50th Anniversary of the Federal Constitutional Court, 2 GERMAN LAW JOURNAL No. 18 (01 December 2001), at http://www.germanlawjournal.com/article.php?id=111.

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another, and that they both are driven to the extreme, so much so, that they seem at the end to fall apart. Today we see how a maximum of anomy and disorder can perfectly coexist with a maximum of legislation. Raulff: From the way you have just described it, I see a rift that leads to an everstarker polarization. Elsewhere, however, you say that the classical realm of the political will become ever narrower and that sounds somewhat critical and decadently theoretical. Agamben: Allow me to reply with Benjamin: there is no such thing as decline. Perhaps this is because the age is always already understood as being in decline. When you take a classical distinction of the political-philosophical tradition such as public/private, then I find it much less interesting to insist on the distinction and to bemoan the diminution of one of the terms, than to question the interweaving. I want to understand how the system operates. And the system is always double; it works always by means of opposition. Not only as private/public, but also the house and the city, the exception and the rule, to reign and to govern, etc. But in order to understand what is really at stake here, we must learn to see these oppositions not as di-chotomies but as di-polarities, not substantial, but tensional. I mean that we need a logic of the field, as in physics, where it is impossible to draw a line clearly and separate two different substances. The polarity is present and acts at each point of the field. Then you may suddenly have zones of indecidability or indifference. The state of exception is one of those zones. Raulff: Does the endpoint and therewith the reality of the private still have a meaning, in the sense of your systematic examination too? Is there something there that is worth defending? Agamben: It is firstly obvious that we frequently can no longer differentiate between what is private and what public, and that both sides of the classical opposition appear to be losing their reality. And the detention camp at Guantnamo is the locus par excellence of this impossibility. The state of exception consists, not least, in the neutralization of this distinction. Nonetheless, I think that the concept is still interesting. Think only of the multitude of organizations and activities in the United States that, at present, are devoted to the protection and defense of privacy and attempt to define what belongs within this realm and what does not. Raulff: How does this then involve your work? Agamben: Homo Sacer is supposed to, as I said at the beginning, comprise four volumes in total. The last and most interesting for me will not be dedicated to an

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historical discussion. I would like to work on the concepts of forms-of-life and lifestyles. What I call a form-of-life is a life that can never be separated from its form, a life in which it is never possible to separate something such as bare life. And here too the concept of privacy comes in to play. Raulff: At this point you clearly link up again with Foucault, perhaps with Roland Barthes as well, who held one of his later lectures on the topic of Vivre ensemble. Agamben: Yes, but Foucault went back in history to the Greeks and the Romans when he had this idea. When you work on this topic, you suddenly no longer have a floor under your feet. And here you see clearly that we seem not to have any access to the present and to the immediate, except through what Foucault called an archaeology.8 But what an archaeology could be, whose object is a form-of-life, that is to say an immediate life experience, this is not easy to say. Raulff: As I understand it, almost every philosopher has had a vision of the good and the right or of a philosophical life as well. What does yours look like? Agamben: The idea that one should make his life a work of art is attributed mostly today to Foucault and to his idea of the care of the self. Pierre Hadot, the great historian of ancient philosophy, reproached Foucault that the care of the self of the ancient philosophers did not mean the construction of life as a work of art, but on the contrary a sort of dispossession of the self.9 What Hadot could not understand is that for Foucault, the two things coincide. You must remember Foucaults criticism of the notion of author, his radical dismissal of authorship. In this sense, a philosophical life, a good and beautiful life, is something else: when your life becomes a work of art, you are not the cause of it. I mean that at this point you feel your own life and yourself as something thought, but the subject, the author, is no longer there. The construction of life coincides with what Foucault referred to as se deprendre de soi. And this is also Nietzsches idea of a work of art without the artist. Raulff: For all those who have tried over the last thirty years to forge a nonexclusive form of politics, Nietzsche was the decisive reference. Why is he not that for you?

See, e.g., MICHEL FOUCAULT, ARCHEOLOGY OF KNOWLEDGE (Pantheon 1982).

9 See, e.g., PIERRE HADOT, WHAT IS ANCIENT PHILOSOPHY (Michael Chase trans., Belknap 2004); PHILOSOPHY AS A WAY OF LIFE: SPIRITUAL EXERCISES FROM SOCRATES TO FOUCAULT (Pierre Hadot and Arnold Davidson eds., Michael Chase trans., Blackwell 1995).

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Agamben: Oh, Nietzsche was important for me also. But I stand rather more with Benjamin, who said, the eternal return is like the punishment of detention, the sentence in school in which one had to copy the same sentence a thousand times. Raulff: But the work of the Italian Philological School around and after Montinari has precisely shown us that Nietzsche is not a hard, despotic author, as one wanted us to believe for so long, but rather an open, traversed and criss-crossed system of readings and ideas a work of art without author, like you just now called for. Agamben: If that is so, then we need to learn to forget the presence of the subject. We must protect the work against the author.

SPECIAL ISSUE Book Review Misery Knows no Law. Giorgio Agamben thinks the State of Exception
By Ulrich Raulff*

[Editors note: This book review was originally published, in German, in SDDEUTSCHE ZEITUNG on 6 April 2004. We are grateful to Dr. Ulrich Raulff and SDDEUTSCHE ZEITUNG for allowing us to translate the text into English and to publish it in this Issue of German Law Journal. The translation was made by German Law Journal Co-Editor in Chief, Peer Zumbansen.] Giorgio Agamben, Ausnahmezustand (Homo Sacer II.1.). German translation from the Italian by Ulrich Mller-Schll. Suhrkamp Verlag. Frankfurt 2004, 113 pp., 9,--

Homo Sacer, the book that made Giorgio Agamben famous, ended with the constitutive connection between the concentration camp and the state of exception. The camp, according to Agamben, is the space that opens up when the state of exception turns into a normality. The state of exception signifies a temporary (zeitliche) abrogation (Aufhebung) of the rule of law, and the camp gives a spatial expression to this state of exception, even if this expression remains outside of the normal order. As the camp renders the state of exception steady, it creates the paradox of normality which is identical with the anomy: the camp brings about a new juridical-political paradigm in which the norm becomes indistinguishable from the exception. At the same time, it renders laws boundaries fluid: The camp is a hybrid of law and fact (Faktum) in which both have become indistinguishable. In his new book, Ausnahmezustand (state of exception), itdself one volume of a four-part project on Homo Sacer1, Agamben deepens this figure of thought through

Culture Editor, Sddeutsche Zeitung, http://www.sueddeutsche.de.

1 Please see for more references the editorial notes in the Interview between Giorgio Agamben and Ulrich Raulff, also in this issue of German Law Journal.

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a series of minutious explorations into legal theory and the philosophy of law. In his book, we meet the Italian philosopher as a sharp critic of the present, as the analylist of the state of siege (Belagerungszustand) that the US American pax americana has cast over the world. At the same time, Agamben personifies a first rank legal philosopher who transports the lessons learned in many years of studying Heidegger, Benjamin and Foucault into the realm of legal terms. And as we observe Agamben pushing the boundaries of legal speech to its limits and closely watching the emanation of its very terminology, we recognize the inspiration by the historian Ernst Kantorowicz. The state of exception, following Agamben, is the legal form of that which cannot take on legal form: a legal category describing the absence of law. It is in the state of exception that law relates to life being the second polar category in Agambens elliptical theory by bringing about its own suspension. The state of exception, therefore does not mean a special legal order (Sonderrecht) as, for example, public international law. Instead, the state of exception suspends the legal order as such and in total; it is from this angle that we recognize the state of exception as being a boundary, a threshold. By arguing that in todays political discourse, the state of exception increasingly presents itself as the dominant paradigm of governing, Agamben introduces a time index into this situation of a constitutive and structural paradigm. What had been thought of as a temporary displacement of law, has gradually been becoming the normal practice of governance. The military order and the US Patriot Act that were enacted by the Bush administration after September 11, 2001, serve Agamben as examples of this development. The camp, we read in Homo Sacer, is the paradigm of political modernity. Schmitt, the Neutralizer As in his previous writings for the Homo Sacer project, Agamben designs a theory in Ausnahmezustand that allows both for a philosophical-structural and a historical grasp. With the present held in between these pliers, Agamben comes across as an avid pupil of Walter Benjamin. 1940, shortly before his death, Benjamin wrote in his Geschichtsphilosophische Thesen that the state of exception in which we live, is the rule. Benjamin left it open to speculation whether he thereby alluded to the acute suspension of law since 1933 or to a metaphysical state beyond the historical realm. Agamben gives proof of his qualities as legal historian in two historical explorations. The first one is dedicated to the emergence and use of the concept and its forerunners (state of siege Belagerungszustand; state of emergency Notzustand) since the French Revolution, including an analysis of the juridical term of emergency (Not). Italy appears as a particularly interesting political-juridical laboratory, the First War being the great hour of disseminating governmental dis-

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posititions of exceptions (gouvernementale Ausnahmedispositive). The other explorations targets on one Roman institution that may well be regarded as the archetype of the modern state of exception: the iustitium: a state during which the law stands still as during the solstice (solstitium). Instead of tying back the notion back to this dark paradigm of Roman law, Carl Schmitt and the theoreticians of the state of exception of the 20th Century, they unfolded their conception of the setting aside of the law with reference to the institution of dictatorship unjustifiedly, according to Agamben. Agamben, in his Ausnahmezustand, dedicates another brillant excursion to Carl Schmitt: Agamben is capable of turning the old and conundrical story of Benjamins reference to Schmitt around: now Schmitt appears as the reader of Benjamins early essay Zur Kritik der Gewalt of 1921. The ensuing secret debate, as Agamben calls the discrete connection between Benjamin and Schmitt, is now being dominated by Schmitts attempt to neutralize the pure and anomical force that Benjamin had sketched in his text in order to bring it back into the law.