Criminal Law in Times of Emergency

An International Symposium

The German Constitutional Court recently declared unconstitutional a statute authorising the Minister of Defence to order the shooting down of a passenger plane if it was clear that the plane would be used to attack others. This case highlights some problematic questions about the role of criminal law in a context of prospective terrorist attacks and other grave threats to the lives of innocents. Should an official who without explicit authorisation ordered the shooting down of such a plane be exempt from criminal liability under existing legal doctrines?
Criminal Law in Times of Emergency - outlines

What kinds of measures should the criminal law sanction aslegitimate responses to grave threats of this kind? How far should the state'sresponses be governed by the criminal law?

The Minerva Center for Human Rights atthe Hebrew University of Jerusalem, in cooperation with the Konrad AdenauerStiftung and the Mizock Chair in Administrative andCriminal Law, brought together an international group of leading philosophers andlegal theorists to explore these pressing and problematic questions.

The symposium was held at the Konrad Adenauer Conference Centerin Jerusalem on May 21 and 22, 2008. The following speakers participated:

Prof. Antony Duff of the University of Stirling discussed theapplication of criminal law at times of war to military acts taken by soldiersagainst enemy soldiers and the analogous question of applicability arisingduring the war on terror. He argued that inclusion or exclusion for membershipin social groups is a key to understanding the role of domestic andinternational criminal law in these human generated emergencies. Dr. Yoav Sapir, Israel'sDeputy National Public Defender, served as commentator.

Prof. Malcolm Thorburn of Queen’s University, Canada,discussed the different approaches of English law and German law to theinvocation of the defense of necessity as a justification in cases involvingthe loss of lives of innocent individuals. He argued that the differentdoctrines reflect deep differences of opinion relating to role of states inauthorizing or tolerating private conduct. Prof. David Enoch of theHebrew University of Jerusalem commented.

Dr. Re'em Segev of the Hebrew University of Jerusalem addressed thequestion of whether, in the context of justificatory defenses, the notion ofjustification should be limited to justification in the strict sense or ratherbe based on a more relaxed notion of justification. This question has greattheoretical and practical importance in evaluating conduct in times ofemergency entailing under-optimal consequences. Prof.Daniel Statman ofHaifa University commented.

Prof. Robert Sullivan of University College London discussed the UK perspectiveson the issue of what restraints on the treatment of innocent persons should beput in place with relation to State responses to large-scale, terroristviolence. While some legal commitments appear to have a firm hold under UK law (e.g.,the prohibition against torture), other norms governing the protection ofinnocents rely on unsatisfactory open-ended formulations. Dr. Keren Shapira-Ettingerof Bar-Ilan University was the commentator.

Prof. Youngjae Lee of Fordham Universityrevisited the "ticking bomb" scenario and asked whether the publiclaw norm on torture should not depend on the scope of the criminal law defenseof necessity. According to Lee, the twonorms have different power allocation implications and should thus remain separate.Prof. Sandra Marshall ofthe University of Stirlingcommented.

Prof. Dr. Tatjana Hörnle of Ruhr-UniversitätBochum explored the German constitutional right to human dignity and itsapplication in the Luftsicherheitsgesetz case.She argued that given the inability of the legal and philosophical discourse toprovide definite answers to the conundrum which the case introduces, a simple consequentialist solution is probably preferable. Prof. Antony Duff of the University of Stirlingcommented.

Prof. Alon Harel of the Hebrew Universityof Jerusalem and Mr. Assaf Sharon of Stanford Universitypresented a joint paper. Both scholars, who have also addressed the Luftsicherheitsgesetz case, argued that adistinction should be kept between ordinary violations and principledviolations of human rights. Hence, from a moral theory perspective, ex postnecessity is preferable to ex ante authorization. Dr. Yuval Eylon of the Open University of Israel was thecommentator.

Prof. Miriam Gur-Arye of the Hebrew Universityof Jerusalem discussed the differences between criminal excuses andjustifications and applied them to the cases of torture and plane-downing. Whilethe norms empowering the state may accommodate utopian deontologistconsiderations individual actors should not be held to such standards. Prof. Yoram Shachar of the Interdisciplinary Center, Herzliya, commented.

Prof. Alan Brudner of the University of Torontoexamined the theoretical underpinnings of exculpatory defenses at times of emergency,looking inter alia into issues of involuntariness, acknowledgment of humanfrailty, the existence of moral exceptions and the suspension of law's threat. Heargued that the conditions for exculpation must necessarily conform to theconditions for moral blameworthiness and that, as a result, only publiclyvirtuous conduct is excusable. Prof. Yuval Shany of the HebrewUniversity of Jerusalem was the commentator.

Finally, Prof. Mireille Hildebrandtof Erasmus Universityand Vrije University examined the indeterminatenature of modern emergency conditions and the challenges it posed for existingconstitutional law theories. Prof. Mark Tushnet of Harvard University commented.

Adv. Danny Evron