Max Planck Institute for Foreign and International Criminal Law

The 9/11 attacks are regarded by many people as a watershed in the history of criminal justice. The USA, perceived in general as a leader of the free world, overreacted to the terrorist danger and took repressive measures to address it. Other countries followed suit with similar actions to strengthen public security and restrain civil liberties. Against this background, anti-terror legislation in Germany has often been a topic that sparks intense debate. Condemnation of human rights violations occurs when China takes tough measures to combat domestic terrorism.

The subject matter of the project is anti-terror legislation in Germany and China (including laws, regulations, measures, and policies) and the implementation of such legislation. The origins, motivations, and controversies behind the legislation will also be explored. The aim of the project is to explain whether and to what extent Germany and China provide their citizens with adequate legal protection regarding human rights. The project is also expected to provide new perspectives for the improvement of Germany’s existing anti-terror legislation and, more importantly, constructive recommendations for the drafting of China’s first anti-terror code. The methodology involves a normative and comparative analysis of anti-terror legislation in both countries. Relevant academic literature will also be evaluated.

The project consists of three parts. In a first step, the historical development of terrorism and the corresponding legal measures in Germany and China will be analyzed by way of two country reports. The analysis takes into account not only how German and Chinese anti-terror legislation is formed (law on the books) but also how it is implemented in view of protecting human rights (law in action). The second step is a comparative analysis of the major anti-terror regulations and their constitutional foundations. These foundations are dealt with from two perspectives: first, protection of basic rights (e.g., human dignity, life and physical integrity, personal freedom, fair trial, and privacy) and second, general principles that guarantee this protection of basic rights (e.g., rule of law, supremacy of law, certainty of law, reservation of law, principle of proportionality, separation of powers, federalism, judicial independence, and constitutional review). The third step includes a summary of the research findings and a discussion of the different social values and social realities that have a say in determining the differing security-liberty balance in Germany and China.

Research findings up to now indicate that the balance between security and liberty in German anti-terror laws has increasingly tilted to the former. While most of these laws are consistent with the constitutional principles that guarantee the protection of basic rights, others pose significant challenges to the constitution. By comparison, terrorist suspects in China are confronted with repressive and harsh criminal justice measures. Although China has more legal discretion to fight terrorism, the existing legal system has many deficiencies in protecting civil liberties, and the legal practice often goes far beyond the limits that are allowed by China’s law.