Definition and Introduction to State Self-Defense
State self-defense is a concept from constitutional and public law that describes the authority of the state to respond with extraordinary measures to existential threats to the legal and constitutional order in exceptional situations. The aim of state self-defense is to ward off threats that cannot be managed by regular legal means—especially when the existence and functionality of the state are at stake. The term is used in legal literature and in case law to justify interventions in positions protected by fundamental rights and the temporary suspension of legal norms.
Legal Foundations and Constitutional Classification
Constitutional Framework
The basis of state self-defense is not found explicitly in a single law, but arises from the constitutionally inherent protection of the state and its organs. The Basic Law (GG) of the Federal Republic of Germany contains various emergency provisions, such as Articles 115a-115l GG (state of defense), Article 91 GG (internal emergency), and Article 35 para. 2 and 3 GG (catastrophe emergency). State self-defense goes beyond these and refers to a fundamental right derived from the state’s right of self-preservation, permitting intervention in situations of utmost danger, provided the principle of proportionality is strictly observed.
Doctrinal Derivation
State self-defense is doctrinally derived from the principle of raison d’État and the obligation of the state to assert itself against attacks on its existence, integrity, and functionality. The Federal Constitutional Court recognizes limits derived from the rule of law principle but, in extreme exceptional situations, allows for the possibility that the state may act beyond positive law to preserve its fundamental structures, provided that no milder means are available.
Requirements and Conditions for State Self-Defense
Elements Required
The conditions for state self-defense are similar to those for self-defense by a natural person, but have specific differences. The key elements are:
- Existential threat present: The threat must endanger the existence or essential functions of the state or the constitutional order.
- Ultima Ratio Principle: There must be no milder means of eliminating the threat.
- Proportionality: Interventions must be necessary and suitable, and may not exceed the extent strictly required to avert the threat.
- Temporal and Subject-Matter Limitation: Measures taken as part of state self-defense must be limited in duration and scope to the period and extent of the acute threat, and must end when the threat is eliminated.
Distinction from Statutory Emergency Measures
State self-defense must be differentiated from constitutionally regulated emergency institutions (e.g., state of defense, internal emergency, catastrophe emergency). While these emergencies are based on detailed legal provisions, state self-defense is generally invoked only where legal regulations are lacking or insufficient to avert an acute threat.
Legal Consequences of State Self-Defense
Permissibility of Interference with Fundamental Rights
In the context of state self-defense, fundamental rights may, in individual cases, be restricted or temporarily suspended, insofar as this is absolutely necessary to repel the existential threat. The requirement is that the measure is limited to what is strictly necessary and is subject to strict judicial review afterwards. Examples include temporary restrictions of the right to assemble, property rights, or basic communication rights.
Justifying Effect and Criminal Law Aspects
Actions taken as part of state self-defense generally have a justifying effect and thus result in exemption from punishment, provided the requirements are met. This applies especially to officials who take serious measures to protect the public in a state of emergency. However, exceeding what is necessary or abusing state self-defense can make measures unlawful and lead to criminal or civil liability.
Critical Evaluation and Constitutional Review
Risk of Abuse
The concept of state self-defense carries the risk of indiscriminate recourse to extraordinary measures outside the applicable legal order. Due to the lack of a clear statutory definition, there is an increased risk of abuse. Jurisprudence and academic literature therefore emphasize its exceptional nature and call for strict adherence to the principle of proportionality.
Review by Constitutional Courts
Measures taken within the framework of state self-defense are generally subject to subsequent judicial review, especially by the Federal Constitutional Court. This serves to protect against excess and to uphold the rule of law. Judicial oversight remains in place even in a state of emergency and serves as a central corrective.
International References and Perspectives under International Law
There are also parallels in international law to state self-defense, including in the form of self-defense by states against armed attacks (Art. 51 UN Charter). Under international law, such measures are always subject to the prohibition of arbitrariness and the requirement of proportionality.
Conclusion
State self-defense is an unwritten but inherent right of defense of the state to protect its existence and constitutional order. It is an exceptional power that may only be applied in the absence of statutory emergency provisions and only with strict adherence to rule-of-law principles. Subsequent judicial review ensures that abuses are prevented and that the legal order is maintained to the greatest extent possible even in a state of emergency.
Recommended literature for further study:
- Pieroth/Schlink/Kniesel, Police and Public Order Law, latest edition.
- Ipsen, Constitutional Law II: Law of State Organization.
- Sachs, Basic Law Commentary, Art. 20, Art. 115a ff.
- Federal Constitutional Court, Decision of 19.07.1966 – 1 BvR 586/62 (so-called ‘Spiegel Judgment’).
Frequently Asked Questions
When is state self-defense applied?
State self-defense is generally applied when the existence or order of the state is threatened by unlawful attacks and the state—represented by its organs or authorities—defends itself with suitable, necessary, and proportionate means. Its scope especially includes situations in which the functionality of state institutions, the integrity of state territory, or the state’s monopoly on the use of force is directly endangered, such as an armed attack on sovereign territory, an attempted coup, acts of terrorism, or uprisings that threaten the state. Cyberattacks may also, in individual cases, create states of emergency justifying state self-defense, provided they are capable of significantly damaging the state’s existence or vital structures.
Who is authorized to act within the framework of state self-defense?
In principle, the bearer of state self-defense is the state itself, represented by its competent organs, authorities, or officials. In particular, this may include the government, parliament, police, military, or specifically empowered officials. Private actors or individuals are not authorized to carry out acts of state self-defense in the name of the state, unless they act under express legal or official order or as part of combined measures (such as conscription under the Basic Law). Executive measures always require a legal basis and are subject to control by the judiciary and the legislature.
What are the legal limits on exercising state self-defense?
Actions taken as part of state self-defense are subject to strict legal requirements. Of particular importance is the principle of proportionality: state countermeasures may only extend so far as is necessary to eliminate or avert the attack. In addition, the measures must be suitable to remove the threat and must not exceed the mildest means available. International law, especially the prohibition of force under the UN Charter and minimum human rights standards, must also be observed. Domestic fundamental rights, which may be temporarily restricted, must be preserved as fully as possible. Abuse of state self-defense—for example, to pursue political or economic self-interest—is not legally permissible and can result in national and international sanctions.
How does state self-defense differ from individual self-defense?
State self-defense and individual self-defense differ primarily in their bearers and objects of protection. While individual self-defense refers to the right of an individual to defend against an imminent unlawful attack on their own person or rights, state self-defense pertains to the collective interests and existence of the state. In the private sphere, self-defense is regulated by the Penal Code (§ 32 StGB), whereas the legal basis for state self-defense derives from constitutional law, special statutes (e.g., Basic Law – Art. 87a GG for the state of defense), and international law frameworks. Acts of state self-defense generally involve broader powers and are subject to specific political and judicial oversight mechanisms.
What role does international law play in state self-defense?
International law is of central importance to state self-defense, particularly through the general prohibition of the use of force under Art. 2 para. 4 of the UN Charter, which fundamentally prohibits the use of force between states. As an exception, Art. 51 of the UN Charter permits the right of individual or collective self-defense (state self-defense) in the event of an armed attack against a UN member state, until the Security Council takes measures to maintain international peace and security. States invoking state self-defense are required to immediately report their actions to the Security Council and may act solely to repel the attack and within the necessary limits. In addition, human rights standards and international humanitarian law (e.g., the law of armed conflict) must be strictly observed.
Is state self-defense subject to judicial review?
In democratic states governed by the rule of law, state self-defense is fundamentally subject to subsequent, and often also concurrent, judicial review. In Germany, the Federal Constitutional Court is particularly empowered to review the constitutionality of state self-defense measures—such as in the state of defense or regarding internal security measures. Additionally, international courts such as the International Court of Justice or the European Court of Human Rights review compliance with international law and human rights standards in cases of state self-defense. This judicial review serves to protect against abuse, ensure proportionality, and draw clear lines between legitimate defense and impermissible repression.
Can emergency powers of state self-defense be abused and how is this prevented?
The risk of abuse is particularly present in authoritarian or unstable state systems, in which state self-defense may be used to justify repressive measures against political opponents or to restrict fundamental rights. In democratic systems, the principle of the separation of powers, the binding of the executive to law and statute, and an independent judiciary serve as essential safeguards. Transparency, reporting, and oversight obligations—such as through parliamentary oversight committees—additionally ensure control. At the international level, human rights monitoring bodies and courts act as oversight institutions to ensure compliance with the legal boundaries of state self-defense. This plays a major role in curbing and reversing abuse of emergency powers and in addressing corresponding responsibilities.
