By Kilian Roithmaier – The International Centre for Counter-Terrorism – The Hague
European Center for Counterterrorism and Intelligence Studies in Germany and Netherlands.
The former self-declared caliphate of the Islamic State (IS), once the size of Britain, has collapsed. Its attractiveness to the global jihadi movement also became evident in Germany. The German Federal Domestic Intelligence Service (Bundesamt für Verfassungsschutz) estimates that more than 1.050 Foreign Terrorist Fighters (FTFs) have left Germany for Syria and Iraq of whom, to date, 350 have returned and 200 have died. Additionally, at least 42 FTFs, a high number of women and a minimum of 59 children identified as German (dual-)citizens are currently detained, the vast majority in Syria and northern Iraq. This has led to an increased pressure on the German authorities to work towards an adequate response with regard to captured FTFs. Against this background, the German Federal Government has agreed on a new legislative initiative that would introduce the statutory forfeiture of citizenship for German FTFs. This perspective will examine and critically evaluate the recent agreement and the broader German repatriation landscape.
The German legislative initiative on the forfeiture of citizenship
The legislative initiative is the result of an agreement between the Federal Minister of the Interior, Horst Seehofer, and the Federal Minister of Justice, Katarina Barley, and has been approved by the cabinet. Though the proposal still needs to be formally introduced to and approved by the German Federal Parliament, legislation introduced by the government only very rarely fails on the parliament floor.
While Art. 16 of the German Federal Basic Law prohibits the “deprivation” of citizenship, it allows the “statutory forfeiture” of citizenship even against the will of an individual if the decision is based on circumstances the affected individual can “reasonably influence”, e.g. by refraining from illicit behavior. Hence, the new provision shall introduce the forfeiture of citizenship if an individual (1) currently possesses a second nationality, (2) is of legal age (i.e. 18 years or older) and (3) takes part in combat operations abroad for a terrorist “militia”. The latter is defined in the agreed proposal as “paramilitary, organized armed group that attempts to eradicate an existing state in violation of international law with the aim of establishing an alternative state or state-like structures”. The Federal Ministry of the Interior shall be authorized to compile a list of groups that satisfy these requirements. The law will only be applicable to future FTFs and as such does not have retrospective effect. However, as the future of the jihadi movement is uncertain, the law may ultimately be applied against German FTFs who are still on the run if they engage in combat operations in the future.
The envisaged provision is intended to mirror existing Article 28 of the Nationality Act under which a German citizen who “voluntarily enlists with the armed forces […] of a foreign state whose citizenship he or she possesses, shall lose German citizenship.” However, the latter contains a small but crucial difference to the envisaged law: the term “foreign state whose citizenship he or she possesses”. Article 28 assumes that an individual that associates him- or herself with the armed forces of another state whose citizenship he or she possesses, has willingly shifted his or her loyalty to that other state and is actively integrated in its structures (it should be noted that Article 28 does not cover the activities of mercenaries).
Under such circumstances, it is reasonable to expect that the state of second nationality will be willing to exercise its duties towards an individual who has lost his or her German citizenship. However, this cannot be anticipated with the same level of certainty in relation to FTFs. They are, at most, integrated in the structures of a terrorist group, a non-state entity, without particular links to a state. Thus, if Germany is not willing to exercise its duties towards an individual, how could it expect that another state will do? As aptly illustrated by the Shamima Begum case, this “pass-the-buck mentality” can result in a terrorist no (wo)man’s land and create significant human rights and long-term security hazards, and has for that rightly been criticized.
The envisaged provision requires that the individual took part in “combat operations”. However, if an individual can be proven to have fought in the ranks of a terrorist group, he or she could already be prosecuted under Art. 129a, 129b of the German Criminal Code, which prescribes imprisonment between one and ten years for membership in a terrorist organization. Therefore, the new law would establish a concurrent administrative measure alongside criminal proscription, a general trend in (European) counter-terrorism legislation.
This is not per se illicit, as administrative measures can have justifiable deterrent or security effects. But whether the prospect of forfeiture of citizenship will unfold a deterrent effect on FTFs, who are ready and willing to die for their case, remains doubtful. Rather, the measure appears for the most part symbolic, and, as explained above, counter-productive to national and international security. Further, and unlike traditional administrative measures with a deterrent focus, the forfeiture of citizenship is far more profound. It is definitive and takes away a plethora of other rights, for which citizenship forms the basis of entitlement. This also goes beyond what would be permissible under criminal law, which only allows for temporary sanctioning and would demand for the full restoration of individual rights once a person has served his or her sentence.
In short, the measure’s definitive, far-reaching and arguably counter-productive effects stretch, to say the least, what is permissible under the rule of law, in particular the principle of proportionality. Germany has a rather restrained record in counter-terrorism legislation and it leaves one puzzled why it would consider such a steamroller approach now. It is true that the FTF phenomenon caught the international community by surprise, but states are active in putting robust and rule of law compatible safeguards in place to prevent the future departure of FTFs, rendering such symbolic and dubious measures redundant.
Additionally, as is so often with such laws, the measure would only target dual-citizens, opening the way for an unequal treatment of citizenship. The discriminatory attitude of the envisaged provision is deepened by its sole applicability to combat operations abroad. This would entail that a dual-citizen engaging in domestic terrorism is treated more favorably than a dual-citizen engaging in terrorism abroad, though the former conduct jeopardizes German (security) interests more heavily. If the core intention of the law is to target individuals who engage in terrorism to eradicate an existing state, why treat individuals differently merely on the basis of geography? The answer, arguably, lies in the fact that the proposed measure is drafted as a direct response to IS. It is construed to counter Muslim terrorists, who are typically operating abroad, and to send a specific message: who engages in jihadi terrorism forfeits his or her right to be German.
Yet, the legislative proposal opens itself to charges of discrimination since it does not appear to apply equally stringent measures to typically domestically operating perpetrators, e.g. right-wing terrorists. Such discriminatory approach can further alienation and radicalization, potentially leading to violent extremism. The German Federal Government was very quick in rejecting any suggestions that dual-citizens would feel like second-class citizens because of the envisaged law. However, in reality it is doubtful that Germany can successfully rebut the jihadi narrative of a cultural clash when it is treating Muslim terrorists less favorable than other violent extremists. This is not to argue that the law should be expanded, on the contrary, but to show that the underlying motive of the proposed law creates negative implications for the (experienced) equality before the law.
The proposed law does entail some positive elements, mainly in terms of their limiting effects. It is neither applicable to minors nor individuals that join terrorist groups without engaging in active combat operations. This would exclude from the measure children of FTFs, partners that solely followed their (future) spouse or people engaged in administrative and support tasks without connection to active combat operations (e.g. cooks). Furthermore, it shall not be applied retrospectively, though this has already been criticized by some members of the German Federal Parliament.
The broader German repatriation landscape
As the proposed law, even if adopted, may not be applied retrospectively, the German Federal Government must find an alternative response to the public pressure to repatriate currently detained German FTFs. It should, preliminary, be noted that repatriation is not the only conceivable option. FTFs could also be prosecuted by national courts in the region or under a to-be-established international “IS tribunal”. Both options have been dealt with elsewhere but are unlikely to form an appropriate response. While regional prosecution might seem appealing in view of collection of evidence and victim reparation, the allegations of serious and widespread violations of fundamental rights within the Iraqi and Kurdish judiciaries (not to mention Syria) are too concerning to rely on regional justice mechanisms. An international “IS tribunal”, on the other hand, is politically unlikely to be established. Therefore, this perspective will deal with repatriation as the sole remaining option. Essentially, there are two possible approaches to the repatriation of German FTFs: (1) preparing their prosecution in Germany while not actively repatriating them or (2) actively repatriating and, where possible, prosecuting them in Germany.
For the time being, German authorities are preparing domestic prosecutions of FTFs without actively arranging their repatriation. In fact, investigations are currently under way against 32 of the 42 identified detained German FTFs. For this, the German Federal Foreign Intelligence Service (Bundesnachrichtendienst) is interrogating FTFs in Kurdish detention centers. Most investigations focus on FTFs’ membership in a terrorist organization punishable under Art. 129a and 129b of the German Criminal Code (see above). But German prosecutors also announced that FTFs might face prosecutions under the German Code of Crimes against International Law (i.e. war crimes). Thus far, these investigations have resulted in 20 arrest warrants that allow for immediate arrest upon return.
However, Germany is reluctant to actively repatriate its FTFs. While acknowledging a principal right for every citizen to return to Germany, the Federal Ministry of the Interior, stated that the necessary prerequisite for active repatriation would be consular access. As consular assistance is not available in Syria and in the territories under Kurdish control, this “basic right” is de facto withheld.
Nonetheless, leading German politicians have not irrevocably ruled out an active, controlled repatriation of former IS fighters. Federal Minister of Foreign Affairs, Heiko Maas, has stated that repatriation might be conceivable if it was assured that an individual could be prosecuted upon his or her return. Federal Minister of the Interior, Horst Seehofer, was cited in a similar vein. For FTFs that can be prosecuted, as well as for women and children, the German Federal Government is examining available possibilities to enable a repatriation from Syria and the territories under Kurdish control, but the assessment is still to be completed.
In view of public and national security, the objection against actively repatriating FTFs before sufficient evidence is collected to try and prosecute them at home is understandable. However, individuals may not be indefinitely detained if there is insufficient evidence of the commission of terrorist or other punishable offences. Germany must not “outsource” preventive security detention that would be unlawful under its own laws (as was done in Guantanamo Bay). Instead, if there is no evidence that individuals have committed terrorist or other punishable offences, Germany must actively take efforts to have its citizens released. Subsequently, it should repatriate its citizens and organize their reintegration.
In response to IS, the German Federal Government agreed to introduce the statutory forfeiture of citizenship for FTFs. The envisaged law, because of its requirements of engagement in combat operations and previously acquired second nationality, will in practice be applicable merely to a small number of cases. Nonetheless, it runs the risk of creating factions of left-behind extremists that may escape any meaningful oversight, if all states shirk their responsibility towards them. This will increase the danger of immersion and undetected reorganizations of terrorist networks. Additionally, the measure may further the domestic alienation of certain individuals and communities, which can lead to domestic radicalization and social division. Both anticipated consequences suggest that the envisaged measure will in fact be counter-productive.
The proposed measure also negatively impacts the rule of law because of its definitive and far-reaching consequences. Instead of debating such symbolic, standalone measures, Germany should instead pursue the response envisaged for currently detained FTFs now and in the future: actively collect evidence to prepare swift prosecutions in Germany and subsequently repatriate its citizens to enable domestic prosecution. Such an approach would prevent impunity for the atrocities committed by IS and other violent extremists and would be more beneficial for long-term security, because it rebuts the narrative of particularly jihadi groups of a hostile and discriminatory attitude of the West towards Muslims. Certainly, the collection of sufficient evidence poses a major obstacle to domestic prosecutions. But using this argument to avoid domestic investigations and prosecutions, might ultimately entail that FTFs, who were complicit in atrocities, might not be brought to justice at all, or that other individuals are unlawfully detained.
In view of the latter, Germany should also refrain from outsourcing security detention. Where its citizens are held without evidence of being complicit in terrorist or otherwise punishable offences, it must repatriate them and reintegrate them into society. This applies the most to children as they never chose to join terrorist groups and are at a particular risk of irreversible trauma, malnutrition and death.
This all is not to suggest that repatriation will be an easy exercise. It will require costly monitoring of returning FTFs and comprehensive reintegration programs. But after all, repatriation is what a state owes its citizens, non-extremist and extremist alike, and to the international community. The investigation and subsequent prosecution of terrorist suspects is a duty towards the victims of their atrocities. And while it may sound unjustified to invoke state duties towards FTFs after they have actively turned their back against the rule of law and fundamental rights, Germany should not abandon these general principles out of retaliation. Finally, repatriation also is the most favorable option in regard to international security. If all states take over their fraction of the necessary surveillance and handling of returning FTFs, this will divide the burden while dispersing the movement, and will most successfully create long-term security.
European Center for Counterterrorism and Intelligence Studies in Germany and Netherlands.