Germany and its returning foreign terrorist fighters

In his new blog post, Asser Institute researcher Kilian Roithmaier examines a German law that would revoke the citizenship of German foreign terrorist fighters.

In response to the departure of more than 1050 Foreign Terrorist Fighters (FTFs) from Germany to Syria and Iraq, the German Federal Government agreed on a new legislative initiative that would introduce the statutory forfeiture of citizenship for future FTFs who engage in fighting for a terrorist militia. Germany is not the first Western state that is utilising its citizenship laws for countering terrorism, in particular revoking FTFs’ citizenships to prevent them from returning.

The new rule would be an additional administrative measure alongside the criminal prosecution that occurs if an individual belonging to a terrorist group has been proven guilty. The person can now be prosecuted under the German Criminal Code, which prescribes the jail for membership in a terrorist organisation.

In his recent perspective titled “Germany and its Returning Foreign Terrorist Fighters: New Loss of Citizenship Law and the Broader German Repatriation Landscape”, for the International Centre for Counter-Terrorism  (ICCT), Kilian Roithmaier, junior researcher at the T.M.C. Asser Instituut, deals with the recent German legislative initiative in light of the broader German repatriation landscape.

‘Left behind extremists’
While the statutory forfeiture of citizenship appears appealing in view of national security, Kilian Roithmaier concludes “that the envisaged measure will in fact be counter-productive” as “it runs the risk of creating factions of left-behind extremists that may escape any meaningful oversight”. He also criticizes the inherent discriminatory nature of the law that is designed to counter the IS and, by that, Islamic terrorists in particular. Roithmaier finds it doubtful “that Germany can successfully rebut the jihadi narrative of a cultural clash when it is treating Muslim terrorists less favourable than other violent extremists.” According to Roithmaier the measure also stretches what is permissible under the rule of law because of its far-reaching and indefinite effects on individuals: The revocation of citizenship “is definitive and takes away a plethora of other rights, for which citizenship forms the basis of entitlement.”

Instead of engaging in symbolic measures, Kilian Roithmaier urges for an active and controlled repatriation and, where possible prosecution of FTFs now and in the future. A dispersion of the movement and a rule-of-law based handling of the atrocities committed by FTFs, he concludes, is the most successful strategy to create long-term international, and by that national, security. Repatriation is also a duty towards the victims of FTFs as it can ensure prosecution and “prevent impunity for the atrocities committed by IS and other violent extremists”. Read more.

Training programme on Terrorism, Countering Terrorism and the Rule of Law
From 26 – 30 August 2019, ICCT and T.M.C. Asser Instituut in The Hague will host the ninth Advanced summer programme on terrorism, counter-terrorism and the rule of law. During an intensive week, experts, academics and practitioners will explore international and domestic legal aspects of counter-terrorism. You will get the chance to have a unique and in-depth look at the challenges that come with adopting and implementing counter-terrorism measures, while ensuring respect for human rights, fundamental freedoms and the rule of law. Our renowned summer programme will bring you lectures by top speakers in the field, interactive sessions, study visits, group discussions (Chatham House Rules) and panel presentations on current topics. Key topics are: the latest developments in the legal aspects of terrorism & counter-terrorism, administrative and security measures, domestic and international law dilemmas, use of intelligence evidence in counter-terrorism cases, prosecutorial challenges and impact of counter-terrorism on human rights. Have a look at last year’s programme. For more information or to register click here.

Further reading
Countering terrorism through the stripping of citizenship: ineffective and counterproductive
In this perspective, Dr Christophe Paulussen examines the scope and nature of citizenship stripping as a counter-terrorism measure and argues that it stands out in comparison to other counter-terrorism measures. This is because of its highly symbolic nature, its far-reaching effects, as well as its emphasis on ‘addressing’ the problem by making it the problem of other states. (ICCT Perspective, 2018)

UK Measures Rendering Terror Suspects Stateless: A Punishment More Primitive Than Torture
In the latest policy measure against the perceived threat of foreign fighters, the UK passed a law that could result in terrorism suspects becoming stateless. Dr Christophe Paulussen and Dr Laura van Waas analyse the bill (ICCT Perspective, 2014)

Citizenship stripping in Bahrain
Bahrain has been particularly active in citizenship stripping. Authorities have revoked hundreds of citizenships over the last years. According to Amnesty International, the number could be as high as 741 since 2012. In many cases, this leaves the affected persons stateless, which means that they are no longer granted pensions, health care, or housing benefits. It also denies them access to justice, as they lose their right to appear before courts. In this article in the Voice of America, Dr Paulussen points out that when people are expelled after they have been deprived of their citizenship, they simply become the problem of another state.

Citizenship stripping: Protecting national security of passing the buck?
While the United States and its allies are clearing out the last pocket of territory in Syria controlled by the jihadist group Islamic State (IS), and celebrating the end of the ‘Caliphate’, there is a debate raging in western countries about the potential return of citizens who went to fight with IS, and their families. In addition to long-running discussions about whether to repatriate the fighters to face western courts, and ‘rescue’ their wives and children, now the discussion is centred on the potential to take away their citizenships, to prevent them from returning. In this interview with Justice Hub, Dr Christophe Paulussen explains why this is now a big discussion point.

Should Europe uphold the right to return even for Daesh families?
European powers are yet to claim their citizens, who want to return home from former Daesh-held territories in Syria, posing a significant question over whether the legal principle of the right to return will be applied. An interview in TRT World, featuring Dr Christophe Paulussen.

‘Legislative fever is not a long-term solution for stopping terrorism incitement’
Legislators and policy-makers should put more emphasis, expertise, and resources towards resolving the root causes of terrorism, rather than trying to curb the spread of extremism by feverishly expanding counter-terrorism legislation. That is the main conclusion of a new ICCT Perspective ‘Incitement to Terrorism – Treating the Symptoms or Addressing the Causal Malady?’ by Asser researcher and ICCT research fellow Dr Rumyana Grozdanova.

Policy brief: ‘Counter-terrorism measures need to be evaluated’
Read the full policy brief in which Asser researcher Dr Berenice Boutin discusses methods for evaluating counter-terrorism measures and provides suggestions for policy-makers. 

Asser International Crimes Database
The International Crimes Database offers an extensive online collection of international crimes broadly defined, such as genocide, war crimes, terrorism and piracy. It provides access to a range of information, not just for scholars and practitioners (such as judges, prosecutors and defence counsel), but also for students, journalists, families and communities of victims of crimes. It also contains a specific tab dealing with cases of foreign fighters.