Expanding Criminal Laws by Predating Criminal Responsibility - Punishing Planning and Organizing Terrorist Attacks as a Means to Optimize Effectiveness of Fighting Against Terrorism

Author:

Wörner Liane

Abstract

Going after terrorists, often means “fighting the unknown”. The so-called “new threat” cannot be tracked back to known terrorists plotting against known government officials within national boundaries. The need for early investigation is clear, nothing more urgent than to forestall further terrorist actions. Today's sleeper can be tomorrow's terrorist. Hence, the argument herein is that new developments remain as consequent continuation perfecting well-known terrorist strategies and techniques. Instead of predating criminal responsibility the unknown needs to be identified. In refusing such identification current criminal law turns into a soft law reflecting actual social needs by preventing a future wrong. Current German criminal law on terrorism overextends appropriate borders in criminalizing chains of preparations. Punishment is carried out for “thinking different” by way of pre-crime, just symbolizing the wrong. The paper argues that even if criminal responsibility is predated in order to identify the unknown, it has to base on behavior, which can be understood as disorder outside the offender's interim sphere to qualify as criminal wrong. This applies to suspected terrorists and also to all other suspects of crime.

Publisher

Cambridge University Press (CUP)

Subject

Law

Reference112 articles.

1. Mark Zöller, supra note 7, at 504.

2. Also rightly argued by Sieber, supra note 10, at 362.

3. Verfassungsschutzbericht, supra note 9, at 3. Argumentation reads that the network character functions as the basis for radicalization. The terror attack at Frankfurt Airport in April 2011 is one example, where U.S. soldiers were killed by a single offender, who had been radicalized through such networks.

4. Title of the German offense as translated by Bohlander, supra note 9. See supra Part D. Provisions: What is punishable according to the German Criminal Code?; supra note 31 and accompanying text for a discussion on German 2009 laws of sections 89a, 89b, and 91 of the dStGB.

5. The principle of clarity and definiteness (Bestimmtheitsgrundsatz) is incorporated within Art. 103(2) of the German GG: see supra note 44 at Art. 103(2). It is one of the main principles, especially within criminal law. Laws need to clearly define the grounds and the extent of the crime with all its elements and provide punishment. Also criminal law provisions that only function prospectively by averting danger to public need to contain specific material substance, at least in order to ring-fence developments. This specific material substance is derived from respecting constitutional principles, above all the principle of Bestimmtheitsgrundsatz, in defining the offense of abstract endangerment clearly and with certainty: see Schünemann, supra note 51, at 142 (This is Schünemann's third criterion).

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1. The Appropriate Scope for the Criminalization of Incitement to Terrorism;The Criminalization of Incitement to Terrorism from an International Perspective;2023

2. CEZALANDIRILABİLİRLİĞİN ÖNE ÇEKİLMESİ - Kavram, Nedenleri, Görünüm Şekilleri (Alman Ceza Hukuku ile Karşılaştırmalı Bir İnceleme);Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi;2022-05-30

3. Preparatory Offences;Core Concepts in Criminal Law and Criminal Justice;2019-12-31

4. Preparatory Offences;SSRN Electronic Journal;2018

5. Criminal Involvement in Terrorist Associations –– Classification and Fundamental Principles of the German Criminal Code Section 129a StGB;German Law Journal;2012-09-01

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