SUMMARY
Criminal and Enemy as Legal Status Categories
2011 年 36 巻 p. 130
詳細
2011 年 36 巻 p. 130
The most remarkable characteristic of terrorists is that they are the criminal as well as the enemy.Terrorists should not only be defeated by the army but also be arrested and tried for their offenses.This means that neither the protected legal status of the criminal nor that of the enemy is conferred on terrorists.
In modern criminal law, on the one hand, even a serious offender cannot be outlawed as an enemy of the community but is provided with legal protection in the criminal legal procedure.Criminals do not lose their status as members of the community and enjoy the minimum legal protection given to each citizen of the community.In modern legal thought, the criminal is clearly different from the enemy because the former retains the status as a member of our community, while the latter has no such status.
On the other hand, the enemy has been well protected in the modern international law.The distinction between the enemy and the brigand, that is, the criminal organization, has been one of the most important elements of international legal thought since Roman law of nations.The distinction has been obviously accepted in the modern, interstate conception of international law.In a war against the enemy, soldiers should not be punished for combat, unless they violate the laws of war.When captured, soldiers should not be treated as criminals but they should enjoy the status of Prisoner of War.Soldiers should not be regarded as liable for their killing and destruction in combat because they don’t act as members of the criminal organization but as members of the regular army of the State.
The criminal, who is clearly distinguished from the enemy, has been under the protection of the modern criminal law, while the enemy, who is deliberately differentiated from the criminal, has enjoyed a protected status in the modern international law.When the distinction between the criminal and the enemy is lost in legal thought, the protection conferred on both legal status categories will be deprived of its long-established foundation.
