Crimes Against State Security: Distinctive Characteristics and Key Differences

By Amer Hussein Halaseh, Attorney-at-Law, Former Presiding Judge of a State Security Court Panel

A close examination of the provisions governing the criminalization and punishment of crimes against state security reveals that they generally depart from the conventional approach adopted in provisions governing other offenses, with which readers of criminal legislation are familiar. This is not confined to Jordanian legislation; it also characterizes criminal legislation addressing crimes against state security in other jurisdictions, given the danger these offenses pose to individual members of society in particular and to the state as a subject of international law in general. Although these crimes share distinctive characteristics, an examination of the relevant provisions also reveals differences in several respects. To clarify both their common characteristics and their differences, this study is divided into the following two parts.

Part One: Characteristics of Crimes Against State Security

First Characteristic: Legislative Drafting

Criminal provisions are generally distinguished by clear terminology, precise expression, and explicit wording that leaves no room for alternative construction or interpretation. Criminal lawmakers take particular care to ensure that statutory language is clear because the terms used define acts whose commission in breach of the law entails punishment. Those to whom a provision is addressed can therefore understand its substance and meaning and avoid committing the prohibited acts.

The position is somewhat different, however, in provisions prescribing penalties for crimes against state security. Some of their terms are inherently flexible, without firmly defined boundaries, and may be interpreted broadly. An example is Article 111 of the Penal Code, Law No. 16 of 1960, as amended, which provides: “Any Jordanian who engages in intrigues with a foreign state or contacts it to induce it to commit aggression against the state or to provide the means for doing so shall be punished by life imprisonment with labor. If the conduct achieves its intended result, the penalty shall be death.” What, then, is meant by “engages in intrigues”? What are the constituent elements of this offense? Another example is the offense of disturbing Jordan’s relations with a foreign state under Article 3(b) of the Prevention of Terrorism Law, Law No. 55 of 2006, as amended, which provides: “Engaging in acts that may expose the Kingdom to the risk of hostile acts, disturb its relations with a foreign state, or expose Jordanians to the risk of retaliatory acts against their persons or property.” Article 113(1) of the same law likewise provides: “Any Jordanian who, by any means and with the intention of paralyzing national defense, damages installations, factories, ships, aircraft, equipment, ammunition, provisions, or means of communication and transport, or, more generally, anything of a military nature or intended for use by the army or its affiliated forces, shall be punished by life imprisonment with labor.” What is meant by “paralyzing national defense”?

Although the terms employed by the legislature are broad in meaning, we consider this approach justified for the following reasons:

1. These are grave crimes committed against the state that has provided the offender with protection and belonging, thereby repaying its generosity by committing offenses against it.
2. By their nature, these offenses do not have fixed forms or clearly defined contours. It is therefore difficult to specify their material elements clearly, precisely, and in advance.
3. By leaving these terms broad, the legislature intended to give the trial judge discretion to identify the material element of each offense within the applicable legal parameters. This also gives the provisions sufficient flexibility to encompass criminal acts that emerge as crime evolves, taking account of the circumstances of each case and developments in offenders’ criminal thinking. At the same time, the legislature retained the supervisory role of the Court of Cassation in ensuring that the competent court’s factual findings accord with the correct application of the law. This is one of the safeguards of a fair trial, an inherent right of the accused throughout the proceedings.

Second Characteristic: The Broader Scope of Endangerment Offenses

Offenses may be classified, according to their consequences, as endangerment offenses or harm offenses. Endangerment offenses consist in merely exposing a protected interest to danger, regardless of whether the harmful outcome actually occurs. Harm offenses, by contrast, arise when the protected interest suffers material or nonmaterial injury.

In relation to crimes against state security, the legislature has extended the scope of endangerment offenses in view of the interests requiring protection. Article 111 of the Penal Code, concerning the offense of engaging in intrigues, is one example. Where the harmful result occurs, the legislature has prescribed a more severe penalty, as stated in Article 112: “Any Jordanian who engages in intrigues with the enemy or contacts it to assist it in any manner in securing the victory of its forces over the state shall be punished by death.” An endangerment offense is complete once the danger arises, even where no harm occurs. An attempt to commit such an offense is therefore inconceivable, because the attempt itself, namely the creation of danger, constitutes an offense with all its constituent elements.

To illustrate, terrorism offenses have a distinctive nature because they concern society’s right to preserve its safety, security, and prevailing public order and to avert threats to them. The legislature therefore enacted a special statute, the Prevention of Terrorism Law, Law No. 55 of 2006, as amended, primarily to combat terrorism and prevent its occurrence through precautionary and preventive measures, and secondarily to criminalize it when it occurs. The protected interests are not personal or financial rights associated with bodily integrity, the right to life, or property ownership. The purpose of terrorism is not confined to a purely physical outcome, such as killing, destruction, or an attack on persons or property. Rather, it lies in creating a state of fear and terror within a particular community, or even the possibility of such a state arising, or in creating a threat that a terrorist act will be committed, even if the perpetrator does not carry it out. This psychological element is therefore particularly significant in distinguishing the offense of terrorism. Article 2 of the Prevention of Terrorism Law defines a terrorist act as follows: “Any intentional act, threat of such an act, or omission, whatever its motives, purposes, or means, carried out in furtherance of an individual or collective criminal enterprise that may endanger society’s safety and security or cause civil strife, where it may disturb public order, spread terror among people, intimidate them, endanger their lives, damage the environment, public or private facilities or property, international facilities, or diplomatic missions... or obstruct the application of the Constitution, laws, or regulations.”

The legislature thus used the phrase “whatever its motives, purposes, or means.” The motive or impetus that prompted the perpetrator to commit the act is immaterial, since motive in these circumstances is not an element of the offense and does not determine whether an offense exists. This accords with Article 67(2) of the Penal Code, which provides: “Motive shall not constitute an element of an offense except in the circumstances specified by law.”

Third Characteristic: Rules of Criminalization

The general rule is that criminal liability attaches only to tangible conduct expressed in physical acts committed by an offender that may undermine the security of society. Merely contemplating a crime is, in principle, not punishable. Given the distinctive nature of offenses within the jurisdiction of the State Security Court, however, the legislature departed from this rule by treating certain categories as endangerment offenses. Accordingly, Article 107 of the Penal Code defines conspiracy as: “Any agreement between two or more persons to commit, by specified means, an offense provided for in this chapter.” The criminalization of conspiracy is an exception to the general rules governing participation in crime, because an agreement intended to bring about an offense against state security is itself punishable, even if it produces no result. The rationale is that the parties have expressed a shared desire, resolve, and determination to act against state security. Wishing to give a participant in a conspiracy a “last opportunity” and encourage the abandonment of that intention, the legislature granted exemption from punishment if the participant informs the authorities before any act preparatory to execution has begun.

If an act in furtherance of the conspiracy has been committed or commenced, however, the statutory excuse provides only for mitigation under Article 109(2). This benefit is available to an accused person who informs the authorities of a conspiracy or another offense against state security before its completion, or enables the arrest of the other accused persons. In both cases, the legislature excludes the instigator from the benefit of the mitigating excuse. Article 109 of the Penal Code provides as follows:

1. A person who participates in a conspiracy against state security and informs the authorities of it before any act preparatory to its execution has begun shall be exempt from punishment.
2. If such an act has been committed or commenced, the excuse shall serve only to mitigate the penalty.
3. The mitigating excuse shall benefit an accused person who informs the authorities of a conspiracy or another offense against state security before its completion, or enables the arrest, even after prosecution has commenced, of the other accused persons or those whose hiding places the accused knows.
4. This article shall not apply to an instigator.

Fourth Characteristic: Jurisdiction Under the Protective Principle

States generally seek to bring crimes against their security within the jurisdiction of their national courts, regardless of whether the perpetrator is a national or a foreigner, and regardless of where the offense was committed. This gives effect to the protective principle governing the application of criminal law. It applies irrespective of whether the offender acted as a principal, joint perpetrator, instigator, or accessory, and whether the offense was a felony or a misdemeanor. Article 9 of the Penal Code provides: “The provisions of this Code shall apply to any Jordanian or foreign national who, as a principal, joint perpetrator, instigator, or accessory, commits outside the Kingdom a felony or misdemeanor prejudicial to state security, counterfeits the state seal, counterfeits currency, or forges Jordanian or foreign banknotes or banking instruments circulating in the Kingdom either by law or in practice.”

Fifth Characteristic: Multiple Alternative Forms of Criminal Conduct

Crimes against state security are distinguished by a legal structure in which the material element may consist of several alternative forms of prohibited conduct. Each may substitute for the others because they are equally criminalized, and any one of them may therefore satisfy the material element. The following provisions illustrate this characteristic:

1. Article 114: “Any Jordanian who attempts, through acts, speeches, writings, or any other means, to detach part of Jordanian territory for annexation to a foreign state shall be punished by imprisonment with labor for a fixed term of not less than five years...” The legislature thus treats acts, speeches, and writings equally for the purposes of criminal liability.
2. Article 115(1): “Any Jordanian who knowingly provides accommodation, food, or clothing to an enemy soldier or a spy engaged in reconnaissance, or assists such a person to escape, shall be punished by imprisonment with labor for a fixed term.” Providing accommodation, food, and clothing are therefore treated equally as prohibited conduct.
3. Article 122: “Publicly insulting a foreign state, its army, its flag, or its national emblem.” The legislature treats insults directed at the foreign state, its army, its flag, or its national emblem equally for the purposes of criminalization.
4. Article 135(1): “Any person who attacks the life or liberty of His Majesty the King shall be punished by death.” An attack on His Majesty’s life and an attack on his liberty are treated equally.

Sixth Characteristic: Severe Penalties for State Security Offenses

Given the gravity of crimes against state security and their impact on the state’s internal and external existence, the legislature has prescribed severe penalties, extending to death for certain felonies. This does not preclude the State Security Court from reducing a sentence within its discretionary powers. Examples of offenses punishable by death include:

• Article 110(1) of the Penal Code: “Any Jordanian who takes up arms against the state in the ranks of the enemy shall be punished by death.”
• Article 112 of the Penal Code: “Any Jordanian who engages in intrigues with the enemy or contacts it to assist it in any manner in securing the victory of its forces over the state shall be punished by death.”
• Article 7(b) of the Prevention of Terrorism Law: The perpetrator of a terrorist act is punishable by death if the act causes the death of a person; results in the total or partial destruction of a building containing one or more persons; or is committed using explosive, incendiary, toxic, bacteriological, chemical, or radioactive substances, or weapons and ammunition.
• Article 14 of the Protection of State Secrets and Documents Law, Law No. 50 of 1971: Any person who enters or attempts to enter a restricted place with the intention of obtaining protected secrets or documents that must remain confidential to safeguard the state is punishable by imprisonment with hard labor for a fixed term. If the attempt is made for the benefit of a foreign state, the penalty is life imprisonment with labor; if that state is an enemy state, the penalty is death.
• Article 15 of the same law: Any person who steals or obtains secrets, documents, or information of the kind described is punishable by imprisonment with labor for a fixed term of not less than ten years. If the offense is committed for the benefit of a foreign state, the penalty is life imprisonment with labor; if that state is an enemy state, the penalty is death.

Part Two: Differences Between Crimes Against Internal and External State Security

In considering the distinctive characteristics of state security offenses, it remains to be noted that, notwithstanding the features shared by both categories, there are differences concerning the nature of the offense, the status of the offender, and the timing of the act. These differences are examined in further detail below.

First: The Nature of the Offense

As stated above, despite the differences between these two categories, their common feature is that the holder of the infringed right is “the state itself.” An attack on the state’s internal order, whether political, economic, or social, inevitably affects its standing in the international community, diminishing its prestige, strength, and the respect it commands.

Nevertheless, crimes against internal state security are predominantly political in character. They involve offenses affecting the institutions of government, the state’s political, economic, and social structures, and society’s fundamental conditions. Their nature therefore associates them with the concept of the “political offense.” Although the Jordanian legislature has not defined that concept, it has indicated its acceptance of this doctrinal classification in the following respects:

1. Exempting perpetrators of political offenses from extradition under Article 21 of the Jordanian Constitution, which provides: “Political refugees shall not be extradited on account of their political principles or their defense of liberty”; and excluding persons convicted of a political offense from membership of the Senate and the House of Representatives under Article 75(1).
2. Prescribing detention for certain crimes against internal state security as a penalty entitling the convicted person to special treatment. Article 19 of the Penal Code defines detention as placement of the convicted person in a correctional and rehabilitation center with special treatment, without requiring that person to wear an inmate uniform or work without consent. This is, for example, the penalty prescribed in Article 140 for usurping political or civil authority or military command.
3. Establishing procedures for the extradition of ordinary offenders by reference to international agreements while prohibiting the extradition of perpetrators of political offenses. The Kingdom has included an exception for political offenses in most of its agreements, including the 2018 Extradition Agreement between Jordan and Australia, Article 4(1)(e), and the Judicial Agreement between Jordan and Lebanon, Article 4, which prohibits extradition where the offense is political in character.

The nature and purpose of crimes against external state security are fundamentally different in two respects. First, these crimes, such as treason and espionage, are directed against the country as a whole. As Napoleon Bonaparte said: “A traitor to his country is like a man who steals his father’s money: neither will his father forgive him, nor will the thieves thank him.” Second, their purpose is to secure gains associated with personal advantage.

Second: The Nationality of the Offender

The Jordanian legislature has adopted the offender’s nationality as a principal element of certain crimes against external state security, distinguishing between treason (Articles 110–117); offenses against international law (Articles 118–123); espionage (Articles 124–126, repealed by the Protection of State Secrets and Documents Law, Law No. 50 of 1971); contact with the enemy for unlawful purposes (Articles 127–129); undermining the prestige of the state and national sentiment (Articles 130–132); and offenses by contractors (Articles 133–134). Closer examination shows that the distinction between treason and espionage lies in the offender’s nationality. The statutory requirement for treason is satisfied where the offender is Jordanian. Under Article 117, foreign nationals who have a place of residence or actually reside in the Kingdom are treated as Jordanians for the purposes of Articles 111–116.

By contrast, crimes against internal state security may be committed regardless of the offender’s status, whether Jordanian or foreign.

Third: The Timing of the Act

A careful reading of the provisions concerning state security shows that the legislature distinguishes, in prescribing penalties, between criminal acts committed in peacetime and those committed during war or when its outbreak is anticipated. This distinction is well founded, since it is in wartime that states most need the loyalty and solidarity of their citizens. Accordingly, Article 113 provides: “The death penalty shall be imposed if the act occurs during war, when its outbreak is anticipated, or if it results in loss of life,” whereas the ordinary penalty is life imprisonment with labor. In other provisions, the legislature makes the existence of a state of war a condition for the offense itself. Article 110(2), for example, provides: “Any Jordanian who, even without belonging to an enemy army, commits a hostile act against the state during wartime shall be punished by life imprisonment with labor.” The same approach appears in Article 133(1), concerning failure, during war or when its outbreak is anticipated, to perform obligations under a contract relating to national defense.

Fourth: Protection Afforded to Allied and Friendly States

Finally, consideration must be given to the protection afforded to states bound to the Kingdom by a treaty of alliance against a common enemy and to friendly foreign states. In certain crimes against external state security, the legislature has not confined protection to Jordan alone, but has extended it to the security of other states in the following circumstances:

1. The legislature has criminalized treason committed against any state bound to the Kingdom by a treaty of alliance against a common enemy. Article 116 provides: “The penalties prescribed in the preceding articles shall apply where the act is committed against a state bound to the Kingdom by a treaty of alliance against a common enemy.”
2. Article 119 criminalizes a conspiracy occurring within the Kingdom with the purpose of overthrowing the constitution of a friendly foreign state or changing its system of government by force.
3. Article 122 criminalizes any incitement occurring within the Kingdom, or undertaken by a Jordanian, to induce soldiers of a friendly foreign state to desert or mutiny.

As for offenses against the internal security of the Hashemite Kingdom of Jordan, punishment may be imposed only where the conduct genuinely affects the Kingdom’s security.