Just one day after the attacks of September 11, 2001, the German minister of the interior, Otto Schily (SPD), demanded a new security concept. Immediately the existing security laws and precautions were placed under special scrutiny in search for any sorts of deficiencies. The results of these reviews were two legislative initiatives, termed “security packages” or “anti-terror packages,” which changed or altered numerous existing statutes. The new security laws contain a number of infringements into fundamental civil rights and liberties. The legislative process thus had to raise the issue of the relationship between security and civil liberties and weigh the balance between the protection of individual rights and collective security. This, however, does not constitute a new challenge for the German legislature. The collision of security interests with individual civil liberties has caused a legal problem in Germany for some time. September 11 might constitute a political watershed, but in the context of civil liberties in Germany, this date does not represent an important mark. The current measures have to be understood within the context of an at least thirty-year-long period of continuous weighing between security and freedom.

On January 20, 2004, during the State of the Union address, President Bush called for key sections of the USA Patriot Act to be renewed by Congress in 2005. When the president mentioned that provisions of the Patriot Act would expire at the end of 2005, there was applause from some Democrats. Then, when he called on Congress to extend the life of the Patriot Act, Republicans clapped enthusiastically.

“I believe there is no trade-off to be made between human rights and terrorism. Upholding human rights is not at odds with battling terrorism: on the contrary, the moral vision of human rights – the deep respect for the dignity of each person – is among our most powerful weapons against it.”

After the terrorist attacks on the World Trade Center in New York City, it was determined that some of the presumed perpetrators had lived in Germany where they had been studying technical subjects in particular. Public authorities supposed more potential assassins (so-called “sleepers”) were staying in Germany until they received an order to start their mission. In order to discover such persons, data screening was carried out in each federal state of Germany. In the course of it, all universities were obliged to hand over the data material concerning their enrolled students for data alignment by police authorities. Up until now, appeals of affected students against those measures have been successful in Hessen, Nordrhein-Westfalen and Berlin. Those events give reason for a critical reflection of the means of data screening by the police.

Germany was the first country to open trial against a person who has allegedly participated in the 9/11 terror attack in the US. Shortly after September 2001 intelligence services in- and outside Germany concentrated on Hamburg as one of the places where the pilots and their supporters planned the attack. The Maroccan national Mounir El Motassadeq was the first who was arrested and charged by the General Federal Prosecutor with (1) abbeting murder in 3066 cases and (2) with being a member of a terrorist organisation . The trial took place before the Oberlandesgericht (Upper Regional Court – OLG) in Hamburg, where the accused resided at that time. He was sentenced by this Court in first instance to 15 years imprisonment – the first conviction for the 9/11 attack. The accused nevertheless appealed to the Bundesgerichtshof – BGH, Federal Court of Justice, and his conviction was quashed and a re-trial ordered at the Court in Hamburg. In reaction to the BGH's decision Motassadeq was released from detention pending trial on 8 April 2004. The accused now awaits his re-trial on conditional bail.

International law has come unstuck in time. It has gone to sleep stressing a normative future based on state “obligations owed towards all the other members of the international community,” and has awakened in a bygone world in which the state is “susceptible of no limitation not imposed by itself.” The opposing time zones seem now to exist in unison. Thus, for example, the European Court of Human Rights, in examining the impact of the Torture Convention, can split 9:8 on whether national self-interest trumps universal rules of cooperation, or the other way around. Likewise, England's House of Lords can opine in the Pinochet case that, as between a reinvigorated national jurisdiction and the developing concept of universal one, “international law is on the move.”

Nowadays, widespread consensus exists that the dramatic events of September 11, 2001 changed not only the country that suffered these attacks but also the way many in the West view the world outside this exclusive circle. For quite a number, it confirmed Huntington's thesis of a clash of civilizations – a vision of a future of ‘us’ versus ‘them'. But as the attackers were being identified, it became clear that in a sense they came from among us; although technically foreign nationals all, they lived and studied inconspicuously in western, multicultural societies. How are we then to deal with this enemy within? How is democracy to fight this so-called War on Terror and survive? Such questions are obviously not new. Bearing De Tocqueville's assertion in mind that a long war is not needed in order to put freedom at risk in a democratic society, this article, using the technique of a thought experiment, seeks to examine the increased prerogatives that governments – fearing the enemy within – have granted themselves in the realm of criminal law to deal with the perceived threat. This experiment will bring the reader, in a non-specialist way, from the criminal justice system of Germany to the possible role of an operational International Criminal Court, and from the criminal justice system of the United States to military tribunals as a means of dealing with what those in power claim is an extraordinary threat.

This paper examines the ambiguous relationship between violence, law, and sovereignty in the context of terrorism today. It focuses, not on normative questions about terrorist violence, but on its structural relationship to law and the sovereign state. Part of the difficulty in theorising terrorism is its heterogeneous and indeterminate nature. For instance, if terrorism is to be characterised by a form of violence designed to inspire fear, then one can of course speak equally about state terrorism as one can about non-state terrorism. Indeed, one might recall that the very word terrorism derives from La Terreur of the post-revolutionary French Republic in the early 1790's. Saint-Just's words stand out as one of the most infamous justifications of state terrorism: “What do you want, you who do not want virtue in order to be happy? What do you want, you who do not want the Terror to be used against the wicked?” That the highest ideals of the Republic were accompanied, and indeed inscribed, through a systematic, yet often indiscriminate, register of violence – that Republican virtue came to be associated with the willingness to be merciless – is more than just a vicissitude of history. It speaks perhaps to the very nature of political discourse itself, unmasking the violence implicit in every political symbolisation, at the base of every law, no matter how democratic.

Terrorist acts have, for a long time, constituted a major concern for the international community. Yet the definition of terrorism has represented an area of international law where the divergence of views between States was significant. For some, the protection of the State and of the democratic values of the society laid at the heart of the debate, whereas others were more concerned with the risk of an unjustified repression of “freedom fighters.” These approaches, although apparently complementary, have proved to be irreconcilable in practice. At the United Nations’ level, this division of the international community prevented the emergence of a consensus over a horizontal definition of terrorism. This situation,-paradoxically did not impede the adoption of several international conventions dealing with specific aspects or forms of terrorism as well as of multiple resolutions on this issue.