Max Planck Institute for Foreign and International Criminal Law

Since the attacks on New York, Madrid, and London, all Western democracies are considered possible targets for a terrorist attack, a situation that causes both a deep sense of unease within the population and the need for heightened security. Germany and England, as well as other countries, have responded to the danger of this unprecedented global terrorism by introducing new criminal offenses, many of which go beyond the international requirements for combating terrorism. In view of the potentially disastrous results of terrorist acts as well as their unpredictability, the legislation was passed with preventive, security-related goals in mind. The primary objective of the new laws is thus to allow earlier government intervention by criminalizing preparatory conduct far in advance of terror attacks. The resulting substantial interference in the freedom of individuals is usually justified by the supposed security provided by the new offense definitions against future attacks. In a constitutional state, however, there must be clear limits on state power – because without such limits, the ability of the state to intervene ever earlier in the run-up to crime could one day lead to criminal punishment for mere thoughts. New risks, therefore, pose new questions about the legitimacy and the functional limits of criminal law and highlight the tensions between security and individual freedom.

The thesis examines the criteria that are being discussed in the attempt to resolve the conflict between freedom and security. It will focus on model approaches to the limits of criminal law as seen in the German and English anti-terrorism legislation. The problem posed by the functional limits of criminal law in German anti-terror legislation is particularly clear in the criminalization of conduct that is socially acceptable and in the proscription of conduct that is not harmful in and of itself, but can lead to harm by means of an intervening choice of the offender or a third party. The penalization of such behavior and actions, well in advance of an attack, raises issues of legitimacy. Should the possession of articles that are actually harmless be punishable if the intention exists to use them for an attack? Furthermore, recognition of broadly defined collective legal goods, such as “public peace,” brings about the problematic expansion of criminal liability. In recent British anti-terror legislation, the conflict between freedom and security becomes even more apparent. A very broad definition of “terrorism” and the abandonment of objective criminal offense elements have in many cases led to massive curtailment of the individual freedoms of private persons.

Both Germany and England have a long tradition of discussing criteria designed to limit punitive action and to provide a benchmark for the legitimacy of penal provisions and the handling of borderline cases. Whereas the debate in Germany is concentrated primarily in the fields of criminal and constitutional law, in the Anglo-American literature, the search for criteria for the legitimation of criminal law is seen primarily as a philosophical question. More recently, however, Anglo-American criminal law scholarship has paid more attention to this topic. While the German criminal law literature has examined – to some extent – Anglo-American approaches in this area, a comprehensive comparison of the principles used to limit the scope of criminal law in both systems has not yet been undertaken. There also seems to be no comparative study on the impact of limiting principles in the terrorism context, and thus no light has been shed on the question of whether such principles play a role in the anti-terrorism policy of the two countries.

The aim of the research project is the elaboration of the functional limits of the scope of criminal law in relation to anti-terror legislation, currently discussed in Germany and England. The criteria used to establish the limits of criminal law and their application to the relevant laws in both countries will be discussed. In this context, the similarities and differences between the German and the British concepts will be addressed and compared in the handling of borderline cases. Finally, the thesis will reflect on the question of whether the German or the British counter-terrorism arrangements are preferable in light of constitutional standards. The overall aim is to contribute to the discussion as to how a fair reconciliation between individual freedom and collective security can be achieved.

The study will be carried out by means of a functional comparative legal analysis. Comparison with England, a country with an Anglo-American legal system, promises to open up new perspectives with regard to the German legal system. Moreover, it seems that England, which is pursuing a more intrusive crime policy than Germany is, resolves the conflict between freedom and security by other means. The analysis of existing anti-terrorism legislation and the limits of criminal law as well as the application of the limiting criteria to the counter terrorism laws involve statutory interpretation as well as the evaluation of case law and academic literature.

The dissertation is composed as follows: An introduction to the problem at hand as well as a description of the goal, method, and course of the study will be followed by country reports on Germany and England. The first section of each country report provides an overview of criminal anti-terrorism legislation. The second section consists of a general description of the criteria for limiting the scope of criminal law in the respective country. The third section of the country reports will illustrate the impact of the findings on anti-terror legislation. The study concludes with a comparative summary and an overall evaluation with regard to the limits of criminal sanctions in accordance with the rule of law.