DÍEZ, CARLOS GÓMEZ-JARA.ENEMY COMBATANTS VERSUS ENEMY CRIMINAL LAW

8/13/2019 DEZ, CARLOS GMEZ-JARA.ENEMY COMBATANTS VERSUS ENEMY CRIMINAL LAW.

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ENEMYCOMBATANTSVERSUSENEMYCRIMINALLAW:

AN INTRODUCTION TO THE EUROPEAN DEBATE REGARDING ENEMYCRIMINAL LAW AND ITS RELEVANCE TO THE ANGLO-AMERICAN

DISCUSSION ON THE LEGAL STATUS OF UNLAWFUL ENEMY COMBATANTS

CARLOS GMEZ-JARA DEZ*

I. INTRODUCTION

THE EUROPEAN DEBATE REGARDING ENEMY CRIMINAL LAW

This article deals with a concept that may seem quite foreign to American legal

scholars: so-called enemy criminal law or criminal law against enemies

(Feindstrafrecht). However, the core of the concept was reflected in a 2002Legal Times

article whose title posed the following question: Wheres the difference between a

criminal and an enemy?1. Moreover, in the aftermath of 9/11, numerous issues have

been raised in the United States regarding the status of enemy combatants. The most

pressing of these has been whether they should be considered prisoners of war, regular

defendants in a domestic criminal case, or something altogether different. These issues

raise broader and more fundamental questions, such as: what rights do (or should)

enemy combatants have? It might even be asked whether they have any rights at all. In

this vein, some have proposed that enemy combatants should be deprived of their

constitutional and internationally acknowledged rights. This, as we will see, is the main

theme of enemy criminal law.

The paper will mostly refer to the positions espoused by the German law

professor Gnther Jakobs, who is regarded as the founding father of the concept that

we now refer to as enemy criminal law. In a nutshell, this scholar noted that in current

Western legislations there are certain provisions that are not aimed at law-abiding

*Associate Professor of Criminal Law (Universidad Autnoma de Madrid, Spain).1 See Legal Studies November 22, 2002. See also for an introduction George Fletcher,

Rethinking Criminal Law. The Universal Part [available at:www.law.upenn.edu/fac/npersily/Fletcher.pdf ] 3.4 (stating that Criminal law against enemiesseeks to get rid of or at least neutralize the offender).


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persons (that he generically termed as citizens), but to potential dangerous individuals

(that he broadly identified as enemies). In the latter case, sanctions are not imposed

retrospectively, i.e., punishing prior wrongdoing, but prospectively, i.e., preventing

future harms. In this light, Jakobs identified three chief features of what he labeled as

enemy criminal law; that is, criminal law directed against enemies: first, punishmentcomes well before an actual harm occurs; second, it contains disproportionate, i.e.,

extremely high, imprisonment sanctions; third, it suppresses procedural rights. Needless

to say, all these features and tenets are exacerbated in case of terrorist offenses, which

represent the highest expression of enemy criminal law.

The situation in Guantnamo and the enemy combatants concept do not seem

too far apart from the outline just presented on enemy criminal law. Surely, the

European debate may seem foreign to some common law scholars, but it could be of usefor a legal system, such as the American, that, as noted, has recently had to deal with

difficult issues as to the procedural rights2of enemy combatants. These represent the

paradigmatic instances of application of enemy criminal law. Therefore, understanding

the foundations of the European concept of enemy criminal law can shed some light

on the issues generated by the American experience with enemy combatants.

PRELIMINARY CONSIDERATIONS AND OVERVIEW OF THE ARGUMENT

Throughout this article there are minimal references to national law provisions.

This is not by chance. The logic behind this approach is to provide a theoretical

discussion of these concepts regardless of where they appear. It would be too easy to

dismiss the arguments at stake by resorting to the fact that different legislations

prescribe different provisions. This is a worldwide debate and the arguments are equally

universal. While some legal systems are more inclined towards adopting certain

measures (European concerns are considered anachronistic by some, while the

American approach has been branded as cowboy thinking by others), the broader

jurisprudential debate remains.

2 Regarding the due process issues faced by the enemy combatant status see Tung Yin,Procedural Due Process to Determine Enemy Combatant Status in the War on Terrorism , 73Tenn.L.Rev. (2006).


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To get a sense of the significance of the enemy criminal law debate in Europe, it

should be noted that the distinction between a criminal law for citizens and a criminal

law for enemies3 has provoked a heated discussion in current European legal

scholarship4. From a strictly theoretical perspective, it may well be that the distinction

between citizen and enemy criminal law implicitly embodies a kind of perverse logic5

.On the one hand, distinctions cut the world in two, for they tend to polarize the world

and every attempt to designate one side of the distinction inevitably means denying the

other. On the other, distinctions are based on a foundational paradox. Whenever we try

to secure one side of the distinction by resorting to the other side, we risk loosing

precisely the side we are trying to secure. In other words, to the extent that the State

uses enemy criminal law to secure citizen criminal law it risks the whole existence of the

latter.

To be sure, reassuring the basis or requirements of a system is certainly a

delicate question because, among other things, at least from a systems theory

perspective, the preconditions for a system to exist are precisely that: pre-conditions.

That is, elements or conditions that are located beyond the systems boundaries

3See GNTHER JAKOBS, ESTUDIOS DE DERECHO PENAL293 (1997); Gnther Jakobs, Derechopenal del ciudadano y Derecho penal del enemigo, in: DERECHO PENAL DEL ENEMIGO21, 57 (GntherJakobs and Manuel Cancio Meli eds., 2nd ed., 2006) [hereinafter Jakobs, Enemigo, supra note 3];

GNTHER JAKOBS, DOGMTICA DE DERECHO PENAL Y LA CONFIGURACIN NORMATIVA DE LA SOCIEDAD42 (2004) [hereinafter Jakobs, Dogmtica, supra note 3]; GNTHER JAKOBS, STAATLICHE STRAFE.BEDEUTUNG UND ZWECK40 (2004) [hereinafter Jakobs, Staatliche Strafe, supra note 3]; Gnther Jakobs,Derecho penal del enemigo? Un estudio acerca de los presupuestos de la juricidadin DERECHO PENALDEL ENEMIGO.EL DISCURSO PENAL DE LA EXCLUSIN.VOLUMEN II, at 93 (Manuel Cancio Meli & CarlosGmez-Jara Dez eds, 2006) [hereinafter, Jakobs, Presupuestos, supra note 3]. For an outline of GntherJakobs criminal law theory see Gnther Jakobs, Imputation in Criminal Law and the Conditions forNorm Validity, 7 Buff.Crim.L.Rev. 490 (2004).

4For an introduction see contributions contained in DERECHO PENAL DEL ENEMIGO.EL DISCURSOPENAL DE LA EXCLUSIN (Manuel Cancio Meli & Carlos Gmez-Jara Dez eds., 2006) and B ITTEBEWAHREN SIE RUHE. LEBEN IN FEINDRECHTSSTAAT (Thomas Uwer ed., 2006). See also the followingworks ALEJANDRO APONTE, KRIEG UND FEINDSTRAFRECHT. BERLEGUNGEN ZUM EFFIZIENTENFEINDSTRAFRECHT ANHAND DER SITUATION IN KOLUMBIEN (2004); Manuel Cancio Meli, Derechopenal del enemigo?in DERECHO PENAL DEL ENEMIGOat 86 (Gnther Jakobs and Manuel Cancio Meli,

2nd ed. 2006); LUIS GRACIA MARTN, EL HORIZONTE DEL FINALISMO Y EL DERECHO PENAL DELENEMIGO (2005); FRANCISCO MUOZ CONDE, DE NUEVO SOBRE EL DERECHO PENAL DEL ENEMIGO(2005); MIGUEL POLAINO-ORTS, DERECHO PENAL DEL ENEMIGO. DESMITIFICACIN DE UN CONCEPTO(2006).

5 See generally on the logic of distinctions JOKISCH, LOGIK DER DISTINKTIONEN. ZURPROTOLOGIK EINER THEORIE DER GESELLSCHAFT(1996). See also Luis Chiesa,Outsiders Looking In: TheAmerican Legal Discourse of Exclusion, forthcoming in Rutgers Journal of Law and Public Policy(exploring the implications of certain distinctions in the American Legal Discourse). In any event, theinclusion / exclusion distinction which the enemy / citizen criminal law distinction reflects, brings thepowerful logic of exclusion into the scene (on the logic of exclusion see introductorily WILLIAM RASCH,NIKLAS LUHMANNS MODERNITY.THE PARADOXES OF DIFFERENTIATIONat 108 (2000)).


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located at the other side of the distinction and therefore its reassurance turns out to

be not only impossible, but, even more, a risk to the systems existence. In light of these

considerations, it will ultimately be argued in this article that enemy criminal law may

not only fail to reassure citizen criminal law, but it may also pose a significant risk to

the whole concept. I will do so in three parts.

Part II of the article consists of an explanation of Jakobs analysis of the origins

of enemy criminal law. This requires an examination of the factual grounding that

normative constructions need in order to exist. In part III it will be noted that there is no

way to secure this allegedly factual grounding and that this grounding offers no relevant

information to the (normative) legal system. Finally, in Part IV I will argue that the only

way to proceed with enemy criminal law is to insist in the citizenship status

(presumption of law-abiding behavior) of its participants and to disregard the enemystatus (factual dangerousness of enemies) of those considered threatening. To be sure,

the aforementioned solution cannot secure the existence of the legal order, but it can

indeed enable the criminal law to be coherent and fair. Moreover, if this prescription

fails to achieve the desired effects, it will be due to external factors and not to its

attempt to control them.

II.- PHILOSOPHICAL FOUNDATION OF ENEMY CRIMINAL LAW: THE REAL

ANCHORAGE OF NORMATIVE CONSTRUCTIONS

1.- Describing, prescribing.or just explaining?

At this stage of the debate on enemy criminal law, one thing seems quite clear:

the description of enemy criminal law provided by Jakobs is accurate to a great extent.

Criticism of the concept focuses on its legitimacy and prescriptive implications. In

support of this conclusion it should be noted that various authors from different

countries have confirmed the existence of current manifestations of enemy criminal law

in modern society6. In addition, numerous recent academic contributions harshly

6Regarding the current standing in Spain see Polaino-Orts, supra note 4 at 51; Moz Conde,supra note 4 at 39; in Germany Tatjana Hrnle, Deskriptive und normative Dimensionen des BegriffsFeindstrafrechtGA 80 (2006); Roland Hefendehl,Organisierte Kriminalitt als Begrndung fr einFeind- oder Tterstrafrecht, StV 156 (2005); Michael Pawlik, 14 Abs. 3 des Luftsicherheitsgesetzes ein Tabubruch?, JZ 1045 (2004); Sinn,Ttung Unschuldiger auf Grund 14 III Luftsicherheitsgesetz


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criticize the prescriptive turn in Jakobs position (i.e. the radical change experienced

from the first conception of enemy criminal law proposed by Jakobs in 1985 to the latter

conception advanced in 20007). Due to the considerable length of the debate

surrounding the question over whether enemy criminal law has a descriptive or

prescriptive connotation8

, it will bear more fruits to point out where the bulk of Jakobsanalysis relies (at least, according to my understanding): not in the description, not in

the prescription, but in the explanation. To be sure, the description provided by Jakobs

represents a great contribution to legal scholarship and there is no doubt that a certain

prescription exists in his grounding of enemy criminal law on the so-called right to

security (Grundrecht auf Sicherheit). Yet, the strength of his theoretical construction

derives from the powerful explanation it provides. The American reader surely needs

further clarity in understanding the concept.

Jakobs deserves some recognition for coining a concept (enemy criminal law)

that aptly portrays certain significant features of current criminal law practices.9This is

particularly the case when one takes into account the fact that German scholars claim10

that their major contributions to criminal law theory include the systematization and

categorization of the penal laws. Not surprisingly, even some of the theorists who

disagree with Jakobs have recognized the important theoretical contribution that this

conceptualization brings to the academic debate.11 In fact, if the features contained

rechtmssig?, NStZ 585 (2004)]; Aponte, supra note 2 at 305. In any event, every legal system withcriminal provisions regarding organized crime, drug trafficking, illegal immigration or terrorism usesconstantly enemy criminal law.

7See Prittwitz, Derecho penal del enemigo Anlisis crtico o programa del Derecho penal?,in: LA POLTICA CRIMINAL EN EUROPA at 110 (Santiago Mir Puig et al eds., 2004); Ambos,FeindstrafrechtZStR 1 (2006);Luis Greco, ber das so gennante FeindstrafrechtGA 96 (2006). In theopposite direction, i.e., no disruption between both positions of the German professor see Polaino-Orts,supra note 2 at 46-47.

8Synthesizing the discussion see Hrnle, supra note 6.9 Summarizing this point, main features of enemy criminal law are, as noted before, (1)

punishing well in advance a harm is caused; (2) disproportionate, i.e., extremely high imprisonmentsanctions (3) suppressing procedural rights. See Jakobs, Dogmtica, supra note 3, at 43; Cancio Meli,

supra note 4 at 112 with further references.10 To get a taste of this matter see Schnemanns asseverations in Bernd Schnemann, EinGespent geht um in Europa Brsseler Strafrechtspflege intra muros , GA 511 (2002) regarding theprimacy of German systematic thinking over the functional approach of other traditions; see argumentsagainst such considerations in Joachim Vogel, Europische Kriminalpolitik europischeStrafrechtsdogmatikGA at 523 (2002).

11See among others Bernd Schnemann, Feindstrafrecht ist kein Strafrechtin FESTSCHRIFT FRKAY NEHM175 (Brandner et al ed., 2006); Ulfried Neumann, Feindstrafrecht in BITTE BEWAHREN SIERUHE.LEBEN IN FEINDRECHTSSTAAT299 (Thomas Uwer ed., 2006); FRIEDRICH SACK,FEINDSTRAFRECHT AUF DEM WEG ZU EINER ANDEREN KRIMINALPOLITIK (Transcript in file with the author, 2005);Albrecht, Krieg gegen den Terror Konsequenzen fr ein rechtsstaatliches Strafrecht 117 ZStW 855


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part of the law14. At this point, it would be a good idea to mention the prescriptive

connotation of Jakobs formulation. When refuting Cancios argument, Jakobs affirmed

that enemy criminal law is indeed law, given the fact that it is based on the right to

security to which citizens are entitled15. Thus, Jakobs appears to believe that making use

of enemy criminal law is a right of the citizens who face the enemy,16

insofar as it maycontribute to guaranteeing their right to security.

Yet, as noted before, I believe that the importance of the concept of enemy

criminal law does not lie in the fact that it is grounded on a right to security, but on the

fact that it provides an explanation as to why enemy criminal law exists, and moreover,

why it will continue to exist. The reader should keep in mind that heated discussions

regarding different aspects of enemy criminal law are still taking place, but the

argument that the enemy criminal law does not even exist fails to explain why it does,as a matter of fact, exist. Of course, once we acknowledge that enemy criminal law does

exist, the separate and distinct issue of whether the concept of enemy criminal law

should exist arises. Professor Jakobs provides an argument in favor of the continued

existence and necessity of enemy criminal law that is not typically addressed by most

European scholars. The problem that Jakobs perceives, which typically goes unnoticed,

is whether normative (legal) concepts need a real basis in the outside world in order to

actually exist. In the remainder of this article I will attempt to examine this issue.

14See Cancio Meli, supra note 4 at 89, 124. For an outline of Manuel Cancios criminal lawtheory see Manuel Cancio, Victim Behavior and Offender Liability: A European Perspective, 7Buff.Crim.L.Rev. 512 (2004). In a similar sense Schnemann, Feindstrafrecht, supra note 11, at 175(stating that enemy criminal law is by no means criminal law). In any case, it must be noted that Jakobshimself shows some doubts as to the question of whether enemy criminal law qualifies as law (seeJakobs, Dogmtica, supra note 3, at 43: Enemy criminal law follows different rules than a criminal lawbased on the State of Law and it is not clear yet whether the former reveals itself as truly law. Because ofthis he contends that the word law has two different meanings depending on whether it is used incitizen or enemy criminal law (see Jakobs, Enemigo, supra note 3, at 26]. The first step towardsconsidering it is law is the fact that we are dealing with a certain rules-oriented- reaction and it is notmerely spontaneous and disorderly (see Jakobs, Enemigo, supra note 3, at 24: enemy criminal law

implies at least a behavior according to some rules, and not an spontaneous and disorderly conduct]. Thesecond more relevant step is that enemy criminal law is based upon a fundamental right to security(Recht auf Sicherheit) that is acknowledged to regular citizens and generates the correspondingprotection duty (Schutzpflicht) by the State.

15See Jakobs, Presupuestos, supra note 3, at 114; further references to this question in Jakobs,Enemigo, supra note 3 at 33-34, 75. According to Jakobs We call law to a connection between personsholding rights and duties, whereas the relationship with an enemy is not determined by law, but bycoercion. However, law is always linked to the authorization to use coercion being Criminal Law thestrongest coercion. Therefore, one could argue that every single criminal sanction, even every self-defense, is directed towards an enemy.

16Jakobs, Enemigo, supra note 3 at 34.


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II.2.- Requirements for a legal system to exist: cognitive reassurance of normative

expectations

Expressed in general terms, Jakobs arguments in favor of the existence of

enemy criminal law is simply that every normative concept needs a certain factualunderpinning in order to exist and not appear to be a mere illusion. In the field of

criminal law, Jakobs argues that the link between criminal law rules and the real world

is provided by the cognitive reassurance of normative expectations. According to

Jakobs, this means that in order for a legal order to be a real legal system and not merely

a theoretical or imaginary one, people have to take the legal system seriously and in

general terms comply with it. In order for this to happen, people have to perceive that

other individuals abide by the law, for if everyone were to disobey the law, presumably

no one will comply with the law.This is not to say that everyone has to comply with the law, but rather that,

generally, people must abide by it. It is evident that people themselves must supply the

cognitive reassurance. Otherwise expressed, as long as individuals supply cognitive

reassurance, normative legal constructions will really exist. If not, legal constructions

will be just be thoughts in an ideal world. The issue at stake here is not banal. It has to

do with the very existence of concepts such as the state or the legal system. What

would happen if individuals constantly infringe the rules of the legal system and

therefore calling into question its existence? Jakobs suggests that the legal system

would succumb17.

II.3.- This is Not the first time - Law & Philosophy Outlines

ROUSSEAU AND FICHTE

In the present section I will examine Jakobs interpretation of certain influential

philosophical theories in order to demonstrate how his conception of enemy criminal

17Jakobs, Enemigo, supra note 3, at 42: what must be done against terrorist if we do not want tosuccumb. In a similar way SILVA SNCHEZ,LA EXPANSIN DEL DERECHO PENALat 163 (2nd ed., 2001)states: they threat to undermine the foundations of our society and our State. The American reader willsurely identify in this matter the heated discussion taking place as to whether the Constitution may beregarded as a suicide pact or not (see, among others, Saikrishna Prakash, The Constitution as SuicidePact, 79 Notre Dame L. Rev. 1299 (2004); RICHARD POSNER,NOT A SUICIDE PACT.THE CONSTITUTION INA TIME OF NATIONAL EMERGENCY (2006); and Coles review in David Cole, The Poverty of PosnersPragmatism: Balancing Away Liberty after 9/11, 59 Stan. L. Rev. 1735 (2007) ).


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law as a tool that is used to fight against threats from enemies, not citizens, dovetails

with the conceptual constructs of such theories. Some social contract theorists propose

that when a criminal commits a crime he breaches a contract and, therefore, he cannot

participate from its benefits (i.e., from that point on, he no longer has a legal connection

with other people). Rousseau18

states that every single wrongdoer who attacks a socialright is no longer a member of the State, because he is in war against it, as the

criminal sanction imposed on the wrongdoer demonstrates. The consequence that

follows is that the guilty offender is killed (or harmed) more often as an enemy than as a

citizen.

In a similar way, Fichte states that whoever voluntarily or negligently abandons

the societal contract regarding an issue in which we are counting with his prudence,

loses all of his rights as a citizen and as a human being and enters into a situation inwhich he lacks all rights19. Fichte usually softens such a civil death by constructing a

penitence contract, but never in cases of willful and premeditated murder. Here the

withdrawal of rights remains: the convicted murderer is treated as a thing, as a

dangerous animal. Fichte then goes on to lucidly state that given the lack of personality

of the criminal, executing him is not a criminal sanction, but only a means of security.

We do not have to go into more detail in order to demonstrate that citizenship and

personhood, according to the above-mentioned theorists, is something that can actually

be lost.

Rousseaus and Fichtes constructions make a radical separation between

citizens and criminals. On the one side you have enemies and wrongdoing, on the other

you have citizens and the law. However, Jakobs contends that a legal system should

include criminals within the law for two reasons. First, the offender has the right to

make peace with society once again. For this to happen, he needs to maintain his citizen

status. Second, the offender has the duty to repair the inflicted harm, and duties

presuppose the existence of personhood. In other words, the offender cannot abandon

his societal responsibilities by way of his actions.

18JEAN JACQUES ROSSEAU,THE SOCIAL CONTRACT[1762], (2007).19JOHANN GOTTLIEB FICHTE,FOUNDATIONS OF NATURAL RIGHT[(2000).


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HOBBES AND KANT

Hobbes was also aware of this situation and provided a more accurate

description of the issues. Although he is nominally also a social contract theorist, in the

end he is more a philosopher of institutions. The submission contract, which for himappears as submission through force, should not be understood as a contract. In reality,

it should be understood by way of the the following metaphor: (future) citizens should

not disturb the State in its way to self-organization. In correspondence with this, Hobbes

generally leaves the offenders citizen status intact (i.e., the citizen himself cannot

eliminate his status). However, the situation is somehow different when we are dealing

with rebellion, that is, with high treason, because the nature of this offense consists of

the renouncing of subjection, which is a relapse into the condition of war commonly

called rebellion. For him, those that offend in such a manner should suffer not assubjects, but as enemies20.

For Rousseau and Fichte, every single criminal is an enemy per se; for Hobbes

it appears that only the criminal who commits high treason shares that fate. According

to Jakobs, the matter can be clarified by making reference to Immanuel Kants writings.

Kant, another social contract theorist, locates the problem in the transition from the

(fictitious) state of nature to the State. In Kants construction every person has the right

to oblige any other person to enter into a citizen constitution21. Immediately the

following question arises: What does Kant tell us about those who do not obey the law?

In a long footnote of his essay titled Perpetual Peace22 he deals with the problem

concerning when it is actually legitimate to proceed in a hostile manner against a human

being. He states that man (or the people) in the state of nature deprives me of this

security and injures me, if he is near me, by this mere status of his, even though he does

not injure me actively (facto); he does so by the lawlessness of his condition (statu

iniusto) which constantly threatens me. Therefore, I can compel him either to enter with

me into a state of civil law or to remove himself from my neighborhood 23.

Consequently, whoever does not participate in a legal (mutual) estate must leave, (i.e.,

he is expelled). In any case he or she must not be treated as a person, but can be treated,

20THOMAS HOBBES,LEVIATHAN, Chapter 28 [1651] (1982).21

IMMANUEL KANT,THE METAPHYSICS OF MORALS(1996)22IMMANUEL KANT,PERPETUAL PEACE [1795](2007).23Id., at 25.


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CITIZEN CRIMINAL LAW IS DIRECTED TOWARDS PERSONS WHILE ENEMY CRIMINAL

LAW IS DIRECTED AGAINST NON-PERSONS

In short, individuals who do not provide this minimum of cognitive reassurance

(i.e. who do not generally abide by the rules) do not have access to the rights and dutiesthat typically attach to those that do. Therein lies the reason why enemy criminal law is

not directed towards persons these, by definition, doprovide the cognitive reassurance

but rather to those individuals who do not recognize the validity of the legal system.

Put simply, to the extent that individuals do not provide this minimum level of cognitive

reassurance, the legal system does not recognize them as persons (law abiding citizens) ,

but as sources of danger: in a nutshell, as enemies. Therefore, from the enemies

perspective, the penal system does not impose punishments, but sheer coercive

measures and yet, from the citizens perspective, those penalties are indeed deserved bythe enemies. When using enemy criminal law, society does not speak with its citizens,

but fight against its enemies26. Furthermore, they do so through sanctions and

discourses that citizens have a right to use.

This, however, leaves the important question of obedience to law unattended.

This is definitely a question that one would expect a legal system to answer positively

(i.e. that there is an obligation to obey law). Otherwise, the law would collapse into

itself. On the other hand, there are borderline cases and exceptions (the right of

resistance!)27. Nonetheless, as long as the right to resistance is conceived of as an

exception, everything should be all right. People must obey the law in general terms. As

long as exceptions are indeed only exceptions, then the legal system survives. Yet, a

different perspective appears when the legal system as a whole is permanently

questioned. It is at this point that enemy criminal law comes into play.

II.3.- Meaning and goal of State penal sanctions

It is not hard to see that the abovementioned considerations imply a certain

concept of what punishment means. Indeed, punishment turns out to be a bivalent

instrument with two highly differentiated instances of application: one based in a

26Jakobs, Dogmtica, supra note 3, at 43.27NIKLAS LUHMANN,LAW AS A SOCIAL SYSTEM, at 54 (2004).


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was wrong35. Yet, that is not the case for adversaries whose attitude is by principle

hostile and are indeed extremely active in their disobedience, because here we have to

compensate an already existing deficit on cognitive security36.

III.CRITICISM OF THE THEORETICAL FOUNDATION OF ENEMY CRIMINAL LAW

III.1.- Introduction

OVERVIEW OF THE CRITIQUE

Up to this point we have concluded that enemy criminal law exists as a way tocontribute to the existence of citizen criminal law. In short, only to the extent that a

legal system has an enemy criminal law will the existence of citizen criminal law be

secured. In other words, enemy criminal law reassures what is necessary for citizen

criminal law to exist: a minimum of cognitive mental disposition to comply with the

law. Moreover, that reassurance is not provided through reason, but by means of

coercion and physical violence. This is why every penal sanction must actually hurt

(penal pain).

In the rest of the article I will try to make a small though important point with

regards to the above-mentioned contention. Assuming that enemy criminal law is based

on the attempt to secure the (cognitive) requirements for the legal system to exist, I

believe that it is not true that it can actually secure them. Moreover, when it tries to

secure citizen criminal law, it may achieve the contrary. In other words, I will try to

show that assuming that this is actually the logic of enemy criminal law, from a systems

theory point of view this logic is certainly wrong.

35Jakobs, Enemigo, supra note 3, at 70.36Jakobs, Enemigo, supra note 3, at 70.


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WHY SYSTEMS THEORY?

The reader may question my decision to use systems theory as a vehicle to

analyze these issues. The reason for this decision is quite straight forward. If there is a

theory in the 20th century that has explored the conditions for systems of all kinds toexist, it is systems theory. The extensive analysis provided by many of the advocates of

system theory have helped to elaborate accounts and highly technical insights regarding

the main features and elements of all kinds of systems (biological, psychological,

social). Thus, it should come as no surprise that system theory is also an apt vehicle

with which to examine criminal law in general and enemy and citizen criminal law in

particular.

In the late twentieth century, German philosopher and sociologist NiklasLuhmann applied autopoietic (self-produced) system theory to social systems and

thereby developed one of the most profound and complex theories of how social

systems actually function. This approach provides us with a great instrument to test the

results obtained from the enemy criminal law thesis. Of course, the aim of this analysis

is not to assert that this should be the only theory with which to examine the feasibility

of Jakobs conception of enemy criminal law. The main objective is to compare and

contrast Jakobs contentions with those that would flow from an analysis of enemy

criminal law grounded on systems theory, which is a theory that has long been used to

study and research the constitution of social systems in general, and of the legal system

in particular.

Finally, to the same extent that according to Jakobs the link between enemy

criminal law and the concept of penal sanctioning implies a certain perception of what

penal pain is, the position that I will advance in the following sections provides us with

an alternative conception of penal pain. As it will be noted, penal pain is certainly real,

but, from a normative (i.e. strictly legal) perspective, that fact is an irrelevant per se

piece of information. Only the communicative meaning of penal pain has normative

relevance, not its actual physical infliction. In this way we may conceive penal

sanctioning in a manner that affords a better understanding of modern society and its

rationality.


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III.2.- The impossibility of securing the requirements of the system

COMMUNICATION AND CONSCIOUSNESS

I now wish to reformulate the foundations of enemy criminal law in systemstheory terms. In systems theory terms, in order for communication (i.e., normative

expectations) to exist there must be some consciousness (i.e. cognitive reassurance)

support. The uncovered truth here is that depending on what we mean by the term

cognitive reassurance we will be using an argument consistent with systems theory or

inconsistent with that theory. In my opinion, Jakobs understanding of the concept seem

to support the latter conclusion 37.

Conceivably, the undergirding foundation of enemy criminal law is thatcognitive reassurance (i.e. consciousness) basically consists of a minimum of

compliance with the law. Only to the extent that the consciousness abides by the law,

normative expectations (i.e. communication) will exist. This position, however, implies

a direct intervention of consciousness in communication. In other words, the content of

communication depends on the content of the consciousness. There are a number of

theories that provide certain support for that argument, but systems theory is certainly

not one of them. This is due to the fact that, according to systems theory, the content of

communication is independent from the content of consciousness and vice-versa 38.

37 For an in-depth analysis of the relationship between Jakobs and Luhmanns theories seeCarlos Gmez-Jara Dez, Teora de sistemas y Derecho penal: culpabilidad y pena en una teoraconstructivista del Derecho penal in: TEORA DE SISTEMAS Y DERECHO PENAL386 (Carlos Gmez-JaraDez ed., 2005).

38Regarding the independence of the consciousness autopoiesis and communication autopoiesissee NIKLAS LUHMANN,THEORIES OF DISTINCTION.REDESCRIBING THE DESCRIPTIONS OF MODERNITY169(William Rasch ed., 2002) [hereinafter Luhmann, Theories, supra note 40]; LUHMANN,SOZIOLOGISCHE

AUFKLRUNG. VOLUMEN VI at 12, 25, 37 (1995). Nonetheless we must bear in mind that therevolutionary thesis of Niklas Luhmann was not to hold the self-referentiality of consciousness [see inneuropsychology Gerhard Roth, Gehirn und Selbstorganisationin SELBSTORGANISATION.ASPEKTE EINERWISSENSCHAFTLICHEN REVOLUTION167 (Krohn & Kppers ed., 1990); Gerhard Roth, Selbstorganistion Selbsterhaltung Selbstreferentialitt in: SELBSTORGANISATION.ZUR ENTSTEHUNG VON ORDNUNG INNATUR UND GESELLSCHAFT149 (Dress, Hendrichs & Kppers ed., 1986)], but that communication is alsoself-referential (see Niklas Luhmann, Theories, at 155 stating that only communication cancommunicate and that what we understand as action can be generated only in such a network ofcommunication; NIKLAS LUHMANN, SOZIOLOGISCHE AUFKLRUNG. VOLUMEN VI at 113 (1995)[hereinafter Luhmann, Soziologische Aufklrung, supra note 40]. See also MERTEN,KOMMUNIKATION:EIN BEGRIFFS-UND PROZEANALYSE(1977).


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In this sense, it is useful to recall that, according to the constructivist

epistemology, law and human beings are two different autopoietic systems that do not

depend on each other. The former is a social system based on communication 39and the

latter is a psychological system based on the consciousness. Since the 1950s, systems

theory has been affirming that autopoietic systems are open to energy, but closed toinformation40. Hence, and concentrating on the specific subject at hand, consciousness

only provides energy to communication systems, enabling communication to happen. It

can, however, never determine nor provide the content of communication41. At this

point it would be helpful to make use of the following well-known example regarding

the interrelation between two autopoietic systems: to the same extent that nerve cells

(biological system) do not determine the content of consciousness (psychological

system), neither can consciousness determine the content of communication (social

system)42.

THE INCAPACITY FOR AUTOPOIETIC SYSTEMS TO SECURE THE CONDITIONS

OF THEIR OWN EXISTENCE

These considerations are extremely important, as we are dealing with the

conditions for an autopoietic system to exist43. The crux of the matter is that an

39For profound analysis of law as an autopoietic social system see Luhmann, Law, supra note29; Niklas Luhmann, Law as a social system 83 NWULR 136; GUNTHER TEUBNER, LAW AS ANAUTOPOIETIC SYSTEM(1993).

40Famous phrase by the mathematician and cybernetician WILLIAM R.ASHBY,INTRODUCTIONTO CYBERNETICS at 4 (1956). This was the environment contains no information for the system (seeHEINZ V.FOERSTER,OBSERVING SYSTEMS(1981: the environment is the way it is).

41This does not imply that there is no mutual irritation between them. It actually takes placesthrough structural couplings. Regarding the structural coupling between consciousness andcommunication see Niklas Luhmann, Theories, supra note 40, at 163; N IKLAS LUHMANN, DIEWISSENSCHAFT DER GESELLSCHAFT11 (1990); Luhmann, Soziologische Aufklrung, supra note 40 at 37;Dirk Baecker, Die Unterscheidung zwischen Kommunikation und Bewusstsein in EMERGENZ: DIEENTSTEHUNG VON ORDNUNG,ORGANISATION UND BEDEUTUNG217 (Krohn & Kppers ed., 1992)]. Yet,

the content of communication will never be determined by consciousness. To be sure, the concept ofstructural coupling implies that none of them may contribute to the autopoietic operation of the othersystem. When we are using the concept of structural coupling to describe the relationship betweenconscious systems and communication system, we are assuring that those systems operate totallyindependent from each other [Luhmann, Soziologische Aufklrung, supra note 40 at 32].

42 It is quite obvious that both systems (psychological and social) cannot exist nor operatewithout the other. But it holds equally true for many other requirements: life autopoiesis regardingphysical and chemical conditions on which life depends (see Luhmann, Soziologische Aufklrung, supranote 40 at 31).

43The legal systems function is to secure normative expectations [see Luhmann, Law, supranote 29, 142; Expectation (..) does not refer to an actual state of consciousness of a given individual


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autopoietic system cannot secure the conditions of its own existence. Instead, it has to

presuppose them. Consciousness needs nerve cells to exist, but these cells cannot

determine the content of consciousness. In other words, communication needs

consciousness to exist, but consciousness cannot determine the content of

communication. In the context of the discussion surrounding enemy criminal law, whileit is true that communication depends on consciousness in order to exist, the

dependence has nothing to do with cognitive reassurance in the sense of a predisposition

for law compliance. It has to do solely and exclusively with providing the necessary

energy and irritation (without information) for the survival of the social system44.

Up to this point we have been using some systems theory lingo that could be

regarded as complicated, maybe even obscure. Yet, the same reasoning has been

magisterially employed by Ernst-Wolfgang Bckenfrde, a renowned Germanconstitutional law professor, in the context of the problem regarding the constitution of

the rule of law, which, needless to say, is closely related with the dichotomy of enemy

and citizen criminal law. According to Bckenfrde, the rule of law lives from

conditions that the rule of law itself cannot secure45. This is even more true today, given

the overcoming of the concept of Nation-State, the dismantling of the Welfare State

during the 20thCentury and the emergence of Global Governance regimes throughout

the 21stCentury46. In sum, what Bckenfrdes is trying to convey is that criminal law

human being but to the temporal aspect of the meaning of communication (at 143). Previous Jakobsstatements, however, are not consistent with this thinking and basically refer to a minimum cognitiveperformance on the part of the individual to acknowledge him a persona status. In case such a minimum isnot performed by the individual, she will not be recognized as a person and enemy criminal law will comeinto play. Hence, enemy criminal law consists more in the normative reassurance of cognitiveexpectations or to put it differently: it is sheer coercion and violence (see Jakobs, Enemigo, supra note 3,at 34).

44In this sense NIKLAS LUHMANN,DIE GESELLSCHAFT DER GESELLSCHAFTat 102 (1997) statesthat systems presuppose a continuity of mater or energy in which the boundaries of the system do notappear. Clearly, the concept of structural coupling implies a certain irritation between systems;moreover, communication depends upon those consciousness irritations. But it does not imply that thecontent of consciousness may determine the content of communication.

45 ERNST W. BCKENFRDE, STATE, SOCIETY AND LIBERTY (1991) at 60 The liberal secularState lives from presumptions which it cannot itself guarantee. As a free state it only exists as long as thefreedom which it grants to its citizens is regulated from the inside, out of the moral substance of theindividual and the homogeneity of society. On the other hand it cannot warrant these regulative forces byits own authority, with the instruments of law and authoritarian command, without abandoning theprinciple of freedom, thus relapsing into a secularized version of the totalitarian demands it successfullyovercame in the course of the confessional wars."

46See NIKLAS LUHMANN,GESELLSCHAFTSTRUKTUR UND SEMANTIK.VOLUME IV at 101 (1995)).This evolution may be clearly tracked in Helmut Willkes impressive works: HELMUT WILLKE,ENTZAUBERUNG DES STAATES(1983);WILLKE,IRONIEE DES STAATES11 (1992); WILLKE,SUPERVISINDE STAATESat 9, 271 (1998) (highlighting the influence of Knowledge Society ( Wissensgesellschaft));


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lives from conditions that the criminal law itself cannot secure, not even through the use

of enemy criminal law.

III.3.- Penal pain as a construction of the legal system

ASYSTEMS THEORY CONCEPTION OF STATE-SANCTIONED PUNISHMENT AND PENAL

PAIN

In the previous section, I critiqued Jakobs conception of enemy criminal law

from a systems theory perspective. In this section I will elucidate some of the

consequences of my conception of enemy criminal law, especially those that have to do

with the concept of penal sanctioning. If, as Jakobs has argued, the reason for inflicting

penal pain rests in an attempt to strengthen cognitive reassurances, and if, as I argue,such a reassurance is untenable from a systems theory perspective, it follows that we

need a different understanding of penal pain than the one espoused by Jakobs. Hence,

although acknowledging Jakobs important contributions regarding the subject,47I will

proceed to clarify my contrary position, while admitting that this is by no means the

only possible conception of enemy criminal law.

First of all, I believe that, in accordance with Jakobs conception, the means used

to punish are determined by the second aspect of penal sanctioning - the one taking

place in the real world (i.e. physical pain) and not the first aspect - the communicative

meaning of punishment for society48. I cannot agree with this approach given that I

believe that the legal system is a system of communication49, and in such systems

information can only be generated by the system itself. The outside world - the

environment of the system - contains no information. There is absolutely no

information transfer from the environment to the system. Therefore, there is no

double materialization. An oral or written communication (of condemnation for a

WILLKE, ATOPIA 14 (2001); WILLKE, HETEROTOPIA 10, 76 (2003) (indicating the Global Governancecharacteristics as the symbol of the new world order).

47See above II.3.48If a distinction between a formal and a material personhood is adopted (see Jakobs, supra note,

32 at 98) then the materialization does not takes place because of being a person in the material sense, butbecause remaining an individual in the formal sense (material humanity). The offender goes to prisonbecause all in all he is an individual. See similar criticism displayed by H AUSCHILD, DIE POSITIVEGENERALPRVENTION UND DAS STRAFVERFAHRENat 140-141 (2000).

49See Gmez-Jara Dez, supra note 39, at 402.


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law 53. In addition to this, motivation, as a social construction, is part of the

communicative side of the penal sanction54. From the internal perspective of the legal

system, punishment has to be understood as a communicative retribution that increases

the probability of success of such communication from an external perspective55.

This approach implies that penal pain has no communicative relevance per se,

apart from the fact that it is actually inflicted. Only legal communication can have such

independent relevance. Hence, for the legal system, penal pain is a certain social

construction that implies certain states of mind (anguish, distress, affliction, etc) in the

person upon whom the sanction is imposed56. So conceived, penal pain is only relevant

to the concept of penal sanctioning to the extent that saying something about it gains

normative relevance. In turn, such normative relevance may vary with societys

development. This allows us to explain why modern society confers less and lessrelevance to the sanctions physical pain57. The main feature of the legal system does

not lie in the cognitive-psychological effects of legal rules (about which we may only

have certain presumptions or assumptions), but in their normative-communicational

effects. If the legal system tried to secure the cognitive side it would not perform its

function, i.e., the function that enables the law system to reproduce itself. The cognitive

side must be presumed as a condition that allows for the possibility of legal

communication, but it cannot be secured by the legal system without endangering the

own unity and existence of the legal system. In short, penal sanctioning does not aim to

53 Following this reasoning WILFRIED BOTTKE, ASSOZIATIONSPRVENTION. ZUR HEUTIGENDISCUSIN UM STRAFZWECKEat 63 (1995).

54This position is not so far away from approaches as STRAWSON,FREEDOM AND RESENTMENT:AND OTHER ESSAYS(1974). V.HIRSCH,CENSURE AND SANCTIONS(1993).

55The different perspectives from which to observe the legal system has been a recurring themein legal theory. The legitimacy question is closely related to this debate. In order to access the contendingarguments see JRGEN HABERMAS,THE INCLUSION OF THE OTHER:STUDIES IN POLITICAL THEORY(2000)and Niklas Luhmanns response in Luhmann, Quod Omnes Tangit: Remarks on Jrgen Habermas LegalTheory17 Card.L.Rev. 891 (1996).

56 Precisely here lies the reason why corporate criminal sanctions are feasible (see C ARLOS

GMEZ-JARA DEZ,LA CULPABILIDAD PENAL DE LA EMPRESA296 (2005)].57This would explain the suppression of physical pain penalties and the enormous increase ofmonetary penalties. Regardless of the fact that such an evolution facilitates managing penalties in oursociety and it also enriches the State what seems extremely relevant is that the expressive meaning ofpenal sanctions remains, i.e., it has not changed though physical pain is no longer present as such.Expressive theories in the US debate provide interesting insights for these matters (see Steven Adler,Expressive Theories of Law: A Skeptical Overview1363 U.Penn.L.Rev. (2000) 148; Anderson / Pildes,Expressive Theories of Law: A General Restatement, 1503 U.PEnn.L.Rev. (2000) 148; in the criminallaw battlefield see Dan Kahan, What do Alternative Sanctions Mean, 591 U.Ch.L.Rev. (1996) 63; DanKahan, Between Economics and Sociology: The New Path of Deterrence2477 Mich.L.Rev. (1997) 95;Dan Kahan, The Secret Ambition of Deterrence, 413 Harv.L.Rev. (1999) 113).


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generate certain psychological consequences inside peoples minds caused by pain.

Rather, its purpose is to decipher the normative relevance of attributing certain states of

minds (anguish, fear, affliction, etc) to people. Thus, penal pain is also an instantiation

of meaning, not a goal58.

IV.- What to do? Basic agreements, ambitious proposals

Up to this point I have discussed different aspects of the concept of enemy criminal law.

Yet, I cannot finish this intervention without stating that which all legal scholars in

Europe agree upon - the current situation in which enemy criminal law is used

indiscriminately is by no means desirable. On the one side there are those who criticize

any kind of enemy criminal law regulation and yet acknowledge that all legal systems in

Western countries contain such regulations. On the other side, there are those whoexplain why such regulations do exist and warn us of the dangerous pollution that

enemy criminal law spreads, and will surely continue to spread, throughout the citizen

criminal law system. In the face of such concerns, the inevitable question is the

following one: what should we do with enemy criminal law?

IV.1.- The pollution thesis and setting contention barriers

To be fair, Jakobs provides a rigid prescriptive solution to this problem that is

not always noticed: we must separate as clearly as possible the provisions pertaining to

enemy criminal law from those belonging to citizen criminal law. The main reason for

this is that both types of criminal law respond to different types of logic. Hence, we

must avoid at any cost the pollution or contamination of citizen criminal law by

enemy criminal law. In this vein, Jakobs affirms that it is the task of criminal law

scholars to identify the rules of enemy criminal law and separate them from citizen

criminal law in order for the latter to insist in the treatment of the offender as a lawful

person59. The reason for this is that when large parts of enemy criminal law intermingle

with citizen criminal law, the result is an unnecessarily harsh criminal law that lacks

58See generally Carlos Gmez-Jara Dez, Die Strafe: eine systemtheoretische Beobachtung36Rechtstheorie 352 (2005).

59Jakobs, Dogmtica, supra note 3, at 46.


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justification and is harmful to the rule of law60. Therefore, the State () should

distinguish clearly between provisions directed towards terrorists () from those

directed towards citizens. If that is not the case, enemy criminal law pollutes citizen

criminal law61. In short, the enactment of a massive amount of enemy criminal law

provisions is not good for the rule of law62

.

In sum, it should be stressed that Jakobs considers that the present status quo is

unacceptable and that enemy criminal law presently knows no limits. The quest for

limits to enemy criminal law has always been present in Jakobs theoretical construction

of the concept. Thus, it is clearly acknowledged that enemy criminal law must be

limited to those instances in which it is necessary to make use of it 63. The problem, as

Jakobs himself acknowledges, lies in how to determine when it is actually necessary to

make use of enemy criminal law64. It seems that Jakobs sets at least two limits onenemy criminal law. In the first place, he argues that the State has no needto deprive

enemies of all of their rights. Secondly, he believes that the State does not need to do

everything that it cando, but actually may refrain from doing so in order to leave the

door open to a future peace agreement with the enemies65.

IV.2.- Enemies vs. Citizens: On which side should the State insist?

For most scholars the prescriptive solution offered by Jakobs does not

sufficiently limit enemy criminal law. It is a necessary but not sufficient step66. That is,

scholars contend that commentators should not satisfy themselves with identifyingthose

provisions responding to the enemy criminal law logic. They should also plead for their

gradual disappearance. This is basically due to their belief in the impossibility of

securing the preconditions of the legal system through the use of enemy criminal law

and the threat that enemy criminal law poses to citizen criminal law. Using Peter Alexis

60Jakobs, Enemigo, supra note 3, at 50.61Jakobs, Enemigo, supra note 3, at 82.62Jakobs, Enemigo, supra note 3, at 48.63Jakobs, Enemigo, supra note 3, at 76.64Id.

65 Jakobs, Enemigo, supra note 3, at 34. For an interesting discusion as to what is needed, from aconstitutional perspective, see Michael S. Paulsen, The Constitution of Necessity, 79 Notre Dame L. Rev.1257 (2004).

66See similarly Cancio Meli, supra note 4, at 144-147.


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IV.2.1.- First level of expansion: War on crime (enemies) vs. presumption of law

abidance attitude (citizens)

If one examines some of the legislation currently enacted in many modern

western states, one can easily see that the express terms of many criminal provisionsand laws already seem to suggest that certain classes of citizens should be treated as

enemies. To talk about combating someone or to wage war on certain types of

criminals gives a sense of the public discourse being put into play. This is one of the

characteristic features of enemy criminal law69: the enactment of what could be called

combat legislation or war-on-something legislation. It is not hard to see this in current

legal rhetoric regarding the war on drugs, the war on sex offenders, etc. In sum, it is

undeniable that this type of war on crime legislation fills the penal codes of every

Western state.

In Europe, similar legislation is easy to find when examining the domestic laws

of various States. However, and more interestingly, this can also be observed when

examining the legislative measures adopted by the European Union itself. Take, for

example, the following titles of several recently enacted European Union rules: (1)

framework decision on combating the sexual exploitation of children and child

pornography70, (2) framework decision on combating trafficking in human beings71,

(3) combating corruption in the private sector72, (4) framework decision on

combating terrorism73, etc. In light of these laws, it very much seems that the state is

engaging in combat against its enemies. The problem with this lies in the fact that those

enemies are also its citizens, at least some of them are.

It thus appears that the state is conducting a war against its own citizens on a

regular basis. How else are we to interpret such words and such attitudes? Actually, if

we look carefully at the type of wars regularly waged by the state, we would notice

that they do not resemble a war against a foreign country, but rather an internal or civil

war. Hence, we may label this whole situation as a penal state of civil war, for there are

69Jakobs, Enemigo, supra note 3, at 47.70Concil Framework Decisin 2004/68/JHA of 22 December 2003.71Concil Framework Decisin 2002/569/JHA.72Concil Framework Decisin 2003/568/JHA of 22 July 2003.73Concil Framework Decisin of 13 June 2002.


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no foreign enemies or enemy aliens to combat, only actual internal enemies74. It is not

necessary to remind ourselves how bloody civil wars tend to be. Thus, avoiding this

type of confrontation between the state and its own citizens is highly desirable.

How can we avoid such a penal state of civil war? I believe we can do so byinsisting on a presumption of law-abiding behavior on the part of the offender. The

potential dangerousness of the offenders conduct should not be a matter of criminal

law, but of other sectors of the law enforcement world. In this sense, dealing with

dangerousness and deviant conduct is a task to which the police power, not criminal

law, should be devoted. As a matter of fact, the content of enemy criminal law responds

to the logic of police intervention, for, as Jakobs himself has acknowledged, it is

impossible to exclude the logic of policing from enemy criminal law75. It is the duty of

police agencies and their officers to view individuals as potential sources of danger andpotential violators of the law. Thus, it should not be surprising that police enforcement

measures embody this view as well. However, the same does not hold true for the

criminal law. The latter, by definition, must presume that individuals are law-abiding

citizens, and should be blind to other considerations that might be relevant for policing

procedures.

IV.2.2.- Second level of expansion: War on terror (enemies) vs. Global Citizenship

(citizens)

As previously stated, the second expansion of the enemy status of certain classes

of persons manifests itself by way of rules that entail a total deprivation of the

fundamental rights to which such a person is entitled. Its maximum expression, at least

today, is the well-known war on terror, and, more specifically, the rules that paved the

way for the establishment of the Guantnamo Bay detention camps. Not surprisingly,

this way of proceeding has generated many problems for the American government and

people, both domestically and abroad.

74Regarding the distinction between external and internal enemies see Ambos, supra note 7, at15. See also Fletcher, supra note 1, stating that current enemy criminal law in America leaves certainindividuals, i.e., convicted felons, in a permanent state of second-class citizenship.

75Jakobs, Enemigo, supra note 3, at 77.


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This problem is exacerbated by the radical exclusion from the legal world that is

the product of being deemed an enemy combatant76. This is just too much of a fiction

for (post-) modern society to tolerate. This holds true not only given the easily

perceptible world tendency towards affording more human rights, but also, and to a

greater extent, given the quasi-sacred nature of certain rights for American citizens onAmerican soil. The program that has led to the total annihilation of the legal status that

the concept of enemy combatants entails has found some barriers to its expansion, and

as time passes and the terror paranoia diminishes, those limits will probably strengthen.

Put simply, the general claim of expanding enemy status to such an extent that it seems

to neglect the factual citizenship or personhood of the offender is something the legal

system itself cannot tolerate and certainly cannot stand for an extended period of time.

The incredible contradiction that pursuing a war on terror by way of creating acriminal law based on the potential dangerousness of certain individuals entails was

clearly exposed by the United States Supreme Court inHamdan v. Rumsfeld. There, the

Court stated that, even assuming that the plaintiff Hamdan was a dangerous individual

who would cause great harm or death to innocent civilians given the opportunity, the

executive nevertheless must comply with the rule of law in undertaking to try him and

subject him to criminal punishment77. As professors Katyal and Tribe put it when the

war on terror was only beginning: it is one thing to wage war, and another to decide on

guilt78.

The reaction against such expansion of enemy status can be found in what could

be labelled as the recognition of a global citizenship. This should lead us to recognize

that individuals have an inalienable status that makes them bearers of certain

fundamental rights just because they are citizens of the world. Global citizenship is

highly consistent with the tendency of establishing a kind of international and universal

global penal law79. Though some authors, like Jakobs, contend that this type of

argument deals not with maintaininga legal estate, but with its establishment and

76 See COLE, ENEMY ALIENS: DOUBLE STANDARDS AND CONSTITUTIONAL FREEDOMS IN THEWAR ON TERRORISM1-21, 183-208 (2003); Cole,Enemy Aliens54 Stanford Law Review 953 (2002).

77Hamdam v. Rumsfeld, 126 S. Ct. 2749 (2006).78Neal Katyal / Larry Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals 111

Yale L.J. 1259 (2002).79See the detailed analysis of Ambos, supra note 4 (proposing a criminal law fair to human

kind (menschengerechtes Strafrecht).


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only the former relates to real criminal law80, social scientists provide evidence of a

Global Constitution (Globalverfassung) that constitutes the foundation of the global

validity of human rights81.

These insights have special relevance in light of current developments regardingthe legal status of enemy combatants. The new proposed amendment to the

Reauthorization Bill H.R. 1585, which attempts to restore jurisdiction to the federal

courts to hear habeas corpus petitions from enemy combatants, clearly shows the

impossibility of the system to just accept a major contradiction within its own logic in a

long-term perspective. The American system of checks and balances responds to

executive and judicial overreaction82 and, quite ingeniously, Professor Katyal has

pleaded for sunsetting judicial and legislative decisions83in the future, by arguing that

what may be tolerated at times of war may be absolutely unbearable in times of peace.

V.- Conclusion

In answering the question about whether the state should make use of enemy

criminal law in order protect itself from the permanent threats posed by certain

individuals that continuously call into question the legitimacy of the legal order, I

believe that the state cannot secure its own existence. In my opinion, the opposite seems

to be true. There is substantial evidence supporting the proposition that the State

annihilates itself when it betrays its own rules by introducing legislation that contradicts

its very essence. The final answer to this and other related questions will only be known

once future events that no one can presently predict have transpired.

80Jakobs, Enemigo, supra note 3 at 53.81 See extensively FISCHER-LESCANO, GLOBALVERFASSUNG: DIE GELTUNGSBEGRNDUNG DER

MENSCHENRECHTE (2005); Fischer-Lescano, Globalverfassung: Verfassung der Weltgesellschaft 88Archiv fr Rechts- und Sozialphilosophie 394 (2002); Fischer-Lescano, Los desaparecidos und dasParadox der Menschenrechte23Zeitschrift fr Rechtssoziologie217 (2002).

82Neal Katyal,Executive and Judicial Overreaction in Guantanamo Cases, Cato Supreme CourtReview (2003-2004)

83Neal Katyal, Sunsetting Judicial Opinions79 Notre Dame L. Rev. 1237 (2004)

Documents

DÍEZ, CARLOS GÓMEZ-JARA.ENEMY COMBATANTS VERSUS ENEMY CRIMINAL LAW