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Terrorism, Risk, and Legislation
towards military or police interventions abroad which are understood as
extra-territorial law enforcement with the goal of providing for internal
safety in failing states or providing protection of human rights. Changes in
the meaning of internal and external safety have been encouraged already
through developments in the control of transnational and organized crime.
The UN Convention against transnational organized crime of 2000 is
characterized by those elements which play also a significant role in antiterrorist
legislation after September 11 th . These changes indicate
convergence between concepts of internal and external security and a trend
towards privatization of wars. In particular the phenomenon of privatization
of wars leads to new socio-legal problems with the emergence of “corporate
warriors” (Singer, 2003) or private military firms (see for instance Grosse
Anfrage, 2005; Antwort der Bundesregierung, 2005).
These changes display as Beck insists (Beck, 2002), a loss of significance of
the nation state and the monopoly of power. The monopoly of power and
the nation state step back behind international and transnational forms of
police and military cooperation which are expressed in the development of
international and transnational forms of police and military cooperation
which is expressed in cross-border systems of collecting and exchanging
information as well as in the emergence of supranational intervention and
task forces. Transnational police is visible in Europol, in systems of liaison
officers and joint investigation teams (Proceedings, 2001). This ultimately
leads furthermore to a precarious reduction in the role of the judiciary which
is non-existent on the international level and thus also demonstrates a
strategical defeat for the protection of civil rights.
The goals and functions of secret services change, too. Anti-terrorism
strategies are directed today – as is made explicit in the Patriot Act 2001 as
well as in the most recent counterterrorism strategy concept of the American
administration – towards an integration of formerly separate secret services
competent for internal affairs and external affairs as well as towards an
integration of law enforcement and secret services (Mello, 2002, pp. 381).
Criminal law thus is put at risk of becoming alienated from the classic
boundary setting principle of the so-called modern or civil criminal law
adopted under the reign of a liberal philosophy of the state (Kunz, 2001, pp.
403; Bloy 2003). In the notion and concept of enemy criminal law this
alienation finds an adequate expression. Procedural rights as well as the
principle of personal guilt from the viewpoint of enemy criminal law just
display mere obstacles (see eg. Turk, 2002, p. 281: “it seems clear by now
that the agents and supporters of Al Quaeda cannot be accorded the same
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