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Enemy Criminal Law

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 University of Valencia
Legal Guarantees of Human Rights - Penal Guarantees
Alexandra Haňová

Enemy Criminal Law

1. Essential concepts of legal order

To speak about enemy criminal law, one firstly needs to understand the two concepts of every
legal order. As the founder of the term 'enemy penology', Günther Jacobs, specified already in
1985, the first concept is legal coercion which refers to the legality of the threat to force or
prevent a human being from an action or inaction that is otherwise permissible by their natural
law. The justification lies in the law of reason, which compels the course of action in a line
with legal coercion, as being a part of nature (Jakobs, On the Theory of Enemy Criminal Law,
2010, p. 168). The second concept is the prerequisite of normative orientation to legal
institutions. As Jacobs specifies the reality of institutions is understood as being established
by norms, aimed to oversee and guide specific forms of social conduct, since humans are
holders of the rights and bearers of the duties not because of the reciprocity towards other
individuals, but strictly because of the validity of law (Jacobs, 2006, p. 289). Nevertheless,
within this system exist an idea of abstract legality, hence, those possible victims have the legal
expectations towards possible perpetrators, that they will not become actual perpetrators. In
case of failed expectation, it was not the idea that was incorrect, but rather the behaviour of the
perpetrator (Hegel, 1970). Regardless of that, the victims will no longer believe in abstract
legality. These subjects need certainty. In practice, it means, as Jacobs explains, that "a
normative expectation requires a cognitive foundation if it is to suffice for the actual and nor
the merely abstract orientation of citizens" (Jakobs, On the Theory of Enemy Criminal Law,
2010, p. 170).

That is the reason why the law (in a form of rights and obligations) is conceptually
interconnected with the authority to coerce, and why law-abiding behavior is a precondition
for legal institutions to exist (Díez, 2008, p. 530). With this regard, it might be claimed that the
criminal law serves as a tool how to ensure the continuity of the existence of norms, that will
exemplify people's behaviour (Weisberg, 2003, p. 468). The function of criminal law as a social
controller, ius puniendi, is essential in protecting legal interests for a peaceful society, as a right
of the state (Maculan & Gil, 2020, p. 132). Punishment of the ones who do not obey sends a
clear message to perpetrators that society condemns their actions and that the values and norms
remain being upheld. Nevertheless, this punishment comes just after the crime occurred.
 University of Valencia
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Alexandra Haňová

2. Preventive punishment and terrorism

The idea of preventive punishment is not a new nor revolutionary phenomenon. Rather than a
mere reaction to a past act, preventive punishment shall be understood as policification of
enormous severity, commonly as "an attempt on the occasion of a past act to prevent future
acts" (Jakobs, On the Theory of Enemy Criminal Law, 2010, p. 171). Hence, rather than a
punishment, open policification comes in a wide form of the legislature that only occasionally
reveals its real intent of combating a certain type of criminality missing specific perpetrators.
Here Pawlik makes an important point, of whether the distinction should not be made for the
enemies within the state (within society) and enemies from outside. As Pawlik continues, the
case of terrorists is a clear example of persons who are outside of the local order of state
concerned, coming from a completely distinct order with different norms (Pawlik, 2008, p. 38).

Here we are heading towards the concept of enemy criminal law and its subjects. After the 9/11
attacks, the Bush administration openly spoke with war rhetoric about alleged members of
terrorist groups, naming them enemy combatants. Nevertheless, categorising terrorists as
enemy combatants sparked discussion among scholars on the correctness of this relation since
enemy combatants are by law qualified for having prisoners of war status as well as protection
guaranteed by the Fourth Geneva Convention (Dorf, 2007, p. 47). The same cannot be said
about terrorists. Moreover, since the US has not ratified the 1977 Additional Protocols which
protects unlawful enemy combatants/guerilla fighters (such as the one targeting civilians,
blending into the civilian population) the country is not obliged to the 'niceties' of the
Conventions when detaining, questioning, and trying irregular fighters (Dorf, 2007, p. 49).

Nevertheless, 9/11 changed the dominant paradigm of the war against organised crime and
terrorism, as well as the central aims of criminal justice. Instead of the traditional reactive
system addressing the crime via punishment and rehabilitation, the preventive, proactive
system got a green (Vervaele, 2009, p. 75).

3. Enemy criminal law

More than just the terminology, the motives of terrorists’ actions have been much more taught
provoking, especially when compared to the 'regular' criminals within a state's order. The
terrorists are not criminal per se, since terrorism is an act much more serious, much more
damaging, and much more endangering not aimed to benefit the subject who commit it but
 University of Valencia
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rather designed to advance its political, religious, or ideological cause and influence the
government or/and intimidate the public (Terrorism Act 2000, 2019).
Therefore, these people are enemies of the whole society or the state. The disrespect of the
legal order of the state, and hostility towards the state is of such gravity, as Jacobs explains,
that these people do not deserve the protections by the civil and/or penal code (Jakobs, On the
Theory of Enemy Criminal Law, 2010, p. 178).

As Kant's interpretation of the Hobbesian social contract explains - whoever abolishes the
social contract automatically enters the natural, lawless state. Hence, his rights and obligation
as a person and member of a society diminish (Strauss & Cropsey, 1987, pp. 581 - 582). In
theory, Kant argues that people who disrespect the law and legal order, lose their status as
members of the societies, as persons, as well as their treatment as citizens, and therefore shall
be considered as enemies. As enemies, they shall be persecuted by society and by the state with
all means available (Jakobs, 1985, pp. 762-764).

Despite both Pawlik and Jacobs agreeing with this interpretation, both scholars got into a
conflict with regards to the punishment of people who are a threat to the whole society. Pawlik
believes, that terrorists should be held responsible in criminal law for their past offence, even
the ones that are not part of the positive law (such as the formation of terrorists groups that is
aimed to disturb the public order) and at the same time prevent possible crimes from occurring.
As Pawlik claims, even planning of the actions may be a wrongful act. Therefore, terrorists
shall be detained with an aim to prevent a possible crime, on the basis of future wrong or past
acts that are not crimes per se (Pawlik, 2008, pp. 40-41). Contrary to this, Jacobs believes, that
preventive criminal law is too wide-reaching, insufficient to indicate the possible dangers from
which the society is securing itself. The scholar explains, that when the past act is punished, it
is considered as a damage compensation of the victim and the harm that was done - as getting
the world back to the order in which the criminal remains to be a part of the society.
Nevertheless, punishment of future acts is rather a question of isolation and securing the public.
It has an exclusive effect on the individual who poses a threat (Jakobs, On the Theory of Enemy
Criminal Law, 2010, p. 179).

Nevertheless, as the founder of the term explains, enemy criminal law is not a law per se,
"because the law is a relationship between persons and does not permit depersonalization"
(Jacobs, 2006, p. 53). Despite the law having the authority to coerce, it is linked with the
expectations related to the conclusion of the coercion. As Jacob claims once again, "personal
interaction will be restored on all sides" and presupposes future unlimited personhood
established on a cognitive ground (Jakobs, On the Theory of Enemy Criminal Law, 2010, p.
182). Lack of this cognitive ground authorises the reestablishment of security by coercion and
treatment of the unreliable character as an enemy. The action towards the enemy has to be
 University of Valencia
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quick and effective, in order to protect the society's safety, legal order, and validity of norms
(Greco, 2010, p. 13).
Since the enemy is no longer a legal subject, the state is allowed to use all the means necessary,
including the suspension of the person's rights otherwise guaranteed (Golser, 2017, p. 66). As
Tondini explains, the label of enemy allows (even obliges) the state to directly kill the person,
or prosecute it before courts (possibly military) without respecting the protective status under
domestic or international law and restricting its civil liberties (Tondini, 2007). Nevertheless,
suspending the guarantees provided by national conventions as well as human rights law rises
criticism by scholars, intellectuals, and judiciary bodies.

4. Suspension of the rights in theory and practice

Jacobs identified three features of the enemy law. Those are punishment before the harm
occurs; the enemy is punished with a disproportionately high sanction; and the procedural
rights of the enemy are suspended (Díez, 2008, p. 531). As Díez argues, suspension of human
rights takes place via using measures aimed to prevent a crime from happening, rather than to
the violation of actual norms (Díez, 2008, p. 531). In the case of Austria, participation or
financial support of the terrorist groups can be sanctioned by ten years imprisonment, even in
the case when the group has not committed a crime yet. Hence, the mere intent to disrupt public
order is sufficient for the reaction - punishment. Germany took even stricter measures, by
prosecuting and detaining the citizens who are leaving the country with an aim to join a terrorist
group elsewhere (Golser, 2017, p. 68).

What is however important here, is the identification of the enemies. By law, identification can
be done just by a fair trial, which is guaranteed by national constitutions and all human rights
declarations/treaties. Before and during the trial, the criminal offender has the right to be
presumed innocent. Nevertheless, in the case of enemies, suspected individuals undergo
investigation and wait for trial while detained, which can be only justified under enemy
criminal law. These preventive measures have not only a form of punishment but also suspend
fundamental rights (Díez, 2008, p. 533).

A clear example of the country where the procedural rights of the enemies are oftentimes
suspended is Colombia. The country is using a three-track system of proceedings - ordinary
criminal justice; criminal justice for enemies of the state; and criminal justice for those that
enter into the lenient regime of Peace and Justice (paramilitary forces) (Vervaele, 2009, p. 74).
Importantly, since 1990 domestic law identifies as enemies, besides terrorists, also guerrillas,
and drug dealers. The suspect is in this case oftentimes detained without accusation and his
 University of Valencia
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access to a lawyer is limited if any. In several instances, the accused are tried just based on
anonymous witness evidence, which is otherwise not allowed when examined in the court
(Lajous, 2016, p. 31).

Moreover, in case of Mexico's war on crime (in particular against organized drug crime, in
which members are also considered as enemies of the state) led towards a higher number of
incidents and human rights violations. As in the case of Colombia, Mexico uses a two-track
justice system, the distinction between the organized and common crimes allows the state for
intrusive measures and suspension of certain rights of the enemies (members of the organised
crimes groups) such as relaxed evidentiary standards that undermine the right to due process
(Brewer, 2009, p. 10). Importantly, the state started to deploy the military for the crime-fighting
operations, and so the issue, in this case, is that the members of the army forces who are trained
for the situations of war are using excessive use of force, for the performing the activities and
tasks related to public security (Brewer, 2009, p. 8). This results in an increase of arbitrary
executions, rapes, arbitrary detentions, warrantless searches of homes, use of torture,
aggression against the vulnerable population, and other forms of abuse and repression.
Although in several cases the actions truly led towards eliminating the person considered an
enemy, in many instances the crimes committed targeted innocent individuals or communities.
Perpetrators of these crimes are not held accountable, since the military jurisdiction that
'investigates' these crimes rather contributes to maintaining the state of impunity (Brewer,
2009, p. 9).

Yet, the dominant west world that seems to be the loudest advocate for respect for human rights
does not have a clear sheet either. The Guantanamo Bay detention camp established by the
Bush administration after 9/11 is a wonderful illustration of the military jail, in which a broad
number of prisoners ended up without trial, and where torture is used as a general practice
(Sutton, 2014). As the testimonies of the victims but also former employees demonstrate,
among the common practices used in the camp stands cruel, inhumane, and degrading
treatment; forced feeding of hunger strikers; abuse of the religion of detainees; sleep
deprivation; sexual abuses; forced drugging and many other inhuman acts (Boseley, 2013). The
US Secretary of Defence Donald Rumsfeld publicly labeled the camp as a detention center for
extraordinarily dangerous individuals, which in practice means enemy combatants and
terrorists (Department of Defense). Žižek rather classifies them as homo sacer, persons that
can be killed with impunity, lacking any sacrificial value (Žižek, 2002). Despite there were
numerous promises made by the former presidents to once for all close the camp, until the
present day the prison remains operating with at least 40 detainees jailed for more than 20 years
without being legally tried or charged (Spetalnick, Hunnicutt, & Stewart, 2021).
 University of Valencia
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Even more tremendous are cases of the countries of the Gulf region, in which the enemy
criminal law, usually in a form of legislation aimed to combat terrorism, is routinely used to
target the civil population and political opposition. The governments of Bahrain, Saudi Arabia
or the United Arab Emirates restrict and even violate fundamental human rights by invoking
anti-terror laws, granting the power to the authorities to criminalize otherwise free actions
(ADHRB, 2017, p. 1). In these countries, terrorism is generally defined as any act that "disrupts
public order, risks the national unity, harms the reputation of the state" (ADHRB, 2015, p. 34).
Such a broad definition allows the state to criminalize otherwise free acts, such as free
expression, association, and/or assembly. The legislations further allow and 'justify' arbitrary
detentions, enforced disappearance, unproportionally long prison sentences routinely in court
proceedings where the right to due process and fair trial is violated (ADHRB, 2017, pp. 1-3).

5. Criticism

What one can see on the illustration of the above-mentioned country cases, the enemy law can
be easily misused for threatening the civil population, justifying the violations committed by
the state security forces, and for maintaining the political regime that can be of crucial
importance especially in the authoritative regimes. Regardless of the best intentions the enemy
law aims for, in practice, it is "bringing all institutions of the state, primarily judiciary, under
the absolute domination of the ruling power" (Insel, 2017). As in the case of Mexico, the war
on crime rather than seeking to reverse the drug-related crimes carries a form of assault against
civilians and numerous crimes that are backed by the framework of the enemy law remain
unpunished (Brewer, 2009, p. 10). In the case of authoritarian regimes, one can invoke the
thought of American writer/philosopher Karl Hess "all who love liberty are enemies of the
state". This system allows for criminalising the opposition towards the government, especially
in situations when the government itself is the actual enemy of the rule of law (Insel, 2017).

Nevertheless, there is also philosophical, or better said moral scrutiny of the enemy law.
Dividing the society on the one that poses human rights and the one that does not is in direct
contradiction to the foundation of human rights, and the absolute alienation of the individual
from the legal order and rest of the society does not comply with the facts of life (Balta, 2019).

Moreover, the Commissioner of the Council of Europe points out that legislations such as the
UK's Prevention of Terrorism Act 2005 do not specify "a clear cut-off point between a non-
derogating and derogating control order", which are used in situations of suspecting
involvement of an individual in terrorist activities, and oftentimes violate the procedural
 University of Valencia
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guarantees (Vervaele, 2009, p. 154). Such details are of crucial importance since they guarantee
the rights of the subjects.

Lastly, according to several scholars among which Diez, the system theory point of view of the
enemy law is in its core incorrect. As the author explains, enemy criminal law is the essential
tool to ensure that the citizen criminal law is upheld and secured. The law of the enemy also
aims to reassure that the minimum cognitive mental disposition to comply with the law is
needed, in order to normative expectations exist (Díez, 2008, p. 546). Nevertheless, such a
situation "implies a direct intervention of consciousness in communication" and so the content
of the communication depends on the content of the consciousness that in practice cannot be
determined, only presupposed (Díez, 2008, pp. 548 - 550). As Böckeförde summarizes,
"criminal law lives from conditions that the criminal law itself cannot secure, not even through
the use of enemy criminal law" (Böckeförde, 1991).

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