Summary

Citizens are punished for crimes they have committed, while we protect ourselves against the future acts of our enemies. Enemy penal law rules are found in both procedural and substantive law. It is the law of exceptions and must be denoted as such, in order to avoid any confusion with citizens’ penal law. Whether there is a need enemy penal law depends on the surroundings of a state that is based on the rule of law, and therefore also on its enemies. The clearest example of enemy penal law is preventive detention (Sicherungsverwahrung). In the article, however, the author focuses primarily on criminal and terrorist groups. According to this regulation and its official interpretation, a member or leader of such a group is to be punished not for an expected crime, but rather membership itself is criminal. More broadly, with regard to such crimes as founding a terrorist group, we speak of a precursor to punishability which, from a substantive perspective, does not mean a committed act or attempted act, rather something preceding both, some kind of precursor, which, like participating in a terrorist group, is deemed to be a completed act. Understandably, this raises the question of whether such a thing is so simply possible under the rule of law. If employing means that do not quite suit the rule of law interferes with perfect respect for the rule of law, even a merely temporary failure to act against the enemy is no less compromising. In the worst case, little will remain of this abstract concept.