Right to Resistance and Terrorism – the Example of Germany-Reference-Cited by-同舟云学术

Right to Resistance and Terrorism – the Example of Germany

Published:2012-09-01 Issue:9 Volume:13 Page:1075-1094
ISSN:2071-8322
Container-title:German Law Journal
language:en
Short-container-title:Ger. law j.

Author:

Gesk Georg

Abstract

The right to resistance against state power is very often characterized by actions against an existing legal order that is perceived as being unjust and therefore both – illegitimate and illegal. Terrorism, on the other hand, is often defined as politically motivated violence that is prosecuted by state power according to the law and although the terrorist views his actions as being justified by the perceived illegitimacy of state power, the state by itself is not willing to accept such a point of view – henceforth the prosecution. Therefore we can often find situations where both sides claim legitimacy and legality, mutually excluding each other's positions. This situation is only one of many that epitomize and exemplifies the more common problem of paradox in law: any society that aims at harmonizing conflicts through law will find itself in the not so comfortable position that the basic principle of justice – the quest for treating similar things alike – inevitably leads to cases where we have to face a direct conflict of laws. Either one law is just and therefore ought to apply, or the other, but we will not be able to apply both at the same time, since they may turn out conflicting results.

Publisher

Cambridge University Press (CUP)

Subject

Law

Reference53 articles.

1. The Syrian National Council was formed on 23 August 2011, in Istanbul as an umbrella organization of most Syrian opposition groups; see i.e. Opposition unite behind Syrian National Council, BBC News (28 March 2012), available online at: http://www.bbc.co.uk/news/world-middle-east-17533651 (last accessed: 31 August 2012).

2. BGBl I, 3390 (22 August 2002).

3. See i.e. Schnapp Friedrich , Art. 20, Rn. 79, in Grundgesetz Kommentar (Basic Law Comment, Ingo Münch, Philip Kunig (eds.), 6th ed., 2012.

4. Tunisia, as well as Syria, are both states where recent large scale uprisings against a corrupt and at times undemocratic regime resulted in the over through of the existing regime and a subsequent attempt at organizing a more democratic form of government. In both cases, European governments were first relatively slow in their reaction. However, in the case of Libya they later even actively sought UN and NATO support for resistance against a Libyan regime that tried to militarily crush peaceful demonstrators and their grassroots organizations, thus not only respecting armed resistance as being a legal form of getting rid of an oppressive regime, but actively supporting it; see i.e. UN Security Council, Operation Unified Protector: Protection of civilians and civilian-populated areas & enforcement of the No-Fly Zone – October 2011, 8 UN Security Council Resolution 1973, §§ 4 (2011), available at: http://www.nato.int/nato_static/assets/pdf/pdf_2011_10/20111005_111005-factsheet_protection_civilians.pdf (last accessed: 31 August 2012).

5. For parallel application of both West and East German law in one case (and therefore the vindication that East German law had been recognized as law with legitimate binding force), see in general, Klaus Marxen & Gerhard Werle, Gewalttaten an der deutsch-deutschen Grenze (Violence in German-German border), Vol. 2-1 XXXVII ff. (2002)