Identifying German Legal Approaches to Terror—How the Constitution Shapes Legislation Allowing the Shooting Down of a Hijacked Plane

Abstract

In the face of a recent increase in the number of Islamic terrorist attacks all over the globe—particularly in Europe—counterterrorism has become a main field of political and legal activity once again. In this turbulent context, this Article will look back on how German legislation has reacted to the first significant occurrences of Islamic terrorism in Europe and the United States in the 2000s and how the Constitution has been put in place in the conflict between individual and collective interests by the Federal Constitutional Court in this context. From the wide range of counterterrorism measures that were significantly shaped along the principles of the Constitution since then, this Article takes a detailed look at the legal issues relating to a very specific measure—legislation allowing the shooting down of a hijacked plane. This issue has been vigorously debated among politicians, scholars, and courts in Germany since 2004. It constitutes a vital element of the fundamental legal structures that governs state action that violates certain legal interests in order to protect conflicting ones—a key question for other recent strategies of terrorism as well.