Close to 7,000 radicalized Islamists live in Germany, a third of them prepared to use violence in support of their cause, according to the German Federal Office for the Protection of the Constitution. So far, 450 people – half of them German citizens – have left the country to join military units of the Islamic State (IS) in Iraq and Syria, while an estimated 150 have returned from the fighting to live.
There are concerns that such people pose a risk to national security. On November 12, for example, nine men suspected of supporting militant groups in Syria were arrested in the state of North Rhine-Westphalia. Two were believed to have smuggled fighters from Germany to the Middle East, while the seven others were held on suspicion of robbing churches and schools to help fund Islamic extremism.
Many Germans are frightened of these radicals, and politicians from almost every party are demanding that security laws be tightened.
Their demands are far-reaching: “Terror tourists” should not just be denied permission to leave the country, they should be expelled if they are not German citizens; jihadists with dual citizenships should be stripped of their German citizenship; penal laws should be more severe; support for Islamic fighters should be punishable; making plans to visit a terror camp should be made punishable. What are we to make of all this?
Since September, United Nations Resolution 2178 requires member states “to prevent suspected foreign terrorist fighters from entering or transiting their territories.” But this has already been happening in Germany because anyone seeking to fight in Iraq or Syria is deemed to threaten German security and can be prevented from leaving the country. Germans can have their passports seized while foreigners can lose their residence permits and be expelled.
Experience has taught us that it makes more sense to keep suspected terrorists in the country, where they can be closely monitored, than send them away.
Yet experience has taught us that it makes more sense to keep suspected terrorists in the country, where they can be closely monitored, than send them away. “Out of sight, out of mind” is not an effective approach to dealing with global jihad.
But what applies to passports does not work with identity cards, which are issued to all Germans and can be used to travel within the European Union and some bordering countries. Known colloquially as “persos,” the cards cannot be seized because everyone is required to have reliable identification. But the fact that the cards can be used to travel to Tukey, which borders Iraq and Syria, has caused concerns.
Germany’s interior minister has offered up a sensible solution. The “perso” of terrorist suspects would be confiscated and replaced with another official paper, one that confirms the identity of the holder but does not entitle them to cross borders.
German law states that no matter what crimes they have committed, Germans cannot have their citizenship taken from them. This also applies to those with dual citizenship. However, anyone joining the military forces of a foreign state can lose their citizenship.
But this throws up another complication, as Islamic State is not a sovereign state. This has led some German politicians, particularly those of the ruling center-right Christian Democrats, to call for a change in the law to allow for a broader interpretation of the term “state.” But this would fly in the face of political efforts to deny IS recognition as a state.
The question is whether penal law should be tightened. But a closer inspection reveals that an effective weapon against jihadists and their sympathizers already exists. Anyone violating the ban on leaving the country can be prosecuted. Additionally, Germany outlawed IS in September and it’s now a punishable offense to support it, recruit fighters or collect donations.
That’s not enough for some Christian Democrat politicians. They want a special article in criminal law that – without resorting to an outright ban on the organization – criminalizes any display or appeal for sympathy for terrorists, such as waving an IS flag. Yet such a law would conflict with the basic right of freedom of expression.
Currently, there are two primary legal weapons being used against terror tourists. The first regulation punishes the mere “preparation of a serious violent offence endangering the state,” while the second penalizes support of a foreign terrorist organization. Under these codes, the German judiciary is already investigating about 200 Islamists while a couple of dozen are being held.
Where do you draw the line between merely toying with an idea and creating an actionable plan? How can you tell the intentions of a traveler leaving Germany?
Both laws, however, have practical and constitutional problems. In the case of the second regulation, it must be proven that the accused sought out a recognized foreign terrorist group and actively supported it.
And in May, the German federal Supreme Court drew clear limits to punishment under the first regulation. In a case where a German citizen of Afghan descent built a bomb that went off in his kitchen, the judges saw no punishable preparatory act as it had not endangered the state.
Heiko Maas, Germany’s justice minister, now wants to legislate against those wishing to leave the country with the intention of committing violence. But where do you draw the line between merely toying with an idea and creating an actionable plan? How can you tell the intentions of a traveler leaving Germany? Such a regulation would not only target potential IS fighters, but also innocent travellers. The law cannot be applied to only one group.
Germany’s penal law is strong enough. Prosecutors already are groaning under the burden of far more than 100 judicial inquiries and are barely keeping up. This is where political action is most needed. It’s best to leave the laws as they are.
This article first appeared in Die Zeit. To contact the author: firstname.lastname@example.org