Evidence of "Islamic State" atrocities has moved Germany's top prosecutor's office to call for returning extremists from Syria and Iraq to be considered accomplices to a murderous machine. Not all judges agree.
Germany's Federal Prosecutor is reportedly pushing for a harder line against jihadis returning from Syria and Iraq. They argue that charges of supporting a terrorist group don't go far enough. Since organizations such as "Islamic State" ("IS") and Al-Nusra Front have committed crimes against humanity, prosecutors have been pursuing murder charges with increasing frequency.
The legal strategy, which the Munich-based daily "Süddeutsche Zeitung" reported this week, aims to deter Germans from traveling to Syria, where a number of terrorist organizations have joined a civilian battle against President Bashar al-Assad and his military. The power vacuum created by this conflict allowed Islamic State fighters to claim their own territory, which now stretches into Iraq.
According to the report, several departments of the Federal Prosecutor's office have taken on roughly 135 of these cases, or nearly triple the number in 2014. That number is expected to rise further this year.
Some 800 Islamists, most of them between the ages of 22 and 25, have left Germany to fight alongside IS and Al-Nusra Front in Syria and Iraq, according to the Federal Criminal Police Office (BKA). Roughly one-third of them have returned to Germany.
Evidence hard to prove
Bringing murder charges against any returnees, regardless if they actually killed anyone, has seen both success and failure in the German court system.
Federal prosecutors employed this strategy successfully in July against Harun P., who had worked with the Islamist group Jund-al-Sham, or "Soldiers of the Levant," in Syria, building their case around the militia's offensive on Aleppo's central prison. Although Harun P. did not storm the facility, he was found guilty of accessory to murder both for securing supplies for the fighters and waiting on stand-by to fight. The Munich court also ruled that Harun P. was guilty of attempted murder for firing a mortar blindly over a wall out of "boredom," and sentenced him to 11 years in prison.
However, not all German courts have agreed with the Federal Prosecutor Office's argumentation since evidence often can't be substantiated with officials in the war zones.
In the northern city of Celle, prosecutors said accused "Islamic State" member Ayub B. should be considered an accessory to murder for his role as an ambulance driver in Iraq's Anbar province in July 2014. But, the judge rejected the charges brought against the Wolfsburg-native on the grounds that the circumstances surrounding his involvement were not clear enough. *The federal prosecutor filed an appeal.
Another case also underscored the problem prosecutors face when proving evidence, even when they were words from the defendant's mouth. Kerim B., a native of North-Rhine Westfalia, had told fellow inmates and his girlfriend that he had killed at least 16 people. Not only could the prosecution not prove the identities of the victims or the circumstances surrounding their deaths, the lawyers also could not prove that Kerim B. had participated in fighting in Syria, prompting the Düsseldorf judge to reject the murder charges.
Germany's Federal Court backed the Düsseldorf court's ruling, dismissing the Federal Prosecutor's first appeal in December.
'Islamic State' ban
In September 2014, the German government banned the group "Islamic State," following the passage of United Nations Security Council Resolution 2178, which called on member states to "address the threat posed by foreign terrorist fighters" through prevention and prosecution.
European governments are fearful of a Paris-style attack occurring on their soil. In Germany, this fear has led to the introduction of rehabilitation programs for returning extremists, alongside harsher punishments.
Calls for a different approach
But organizations such as Human Rights Watch (HRW) and the International Center for Counter-Terrorism (ICCT) in The Hague have expressed concern over the implementation of Resolution 2178.
In November, HRW pointed to the legal slippery slope created by the UN Security Council, which does not clearly define "terrorism" or "terrorist," and thus, HRW argues, allows countries to apply "overly broad definitions to acts and groups that 'violate principals of legality.'"
The ICCT advocates rehabilitation over prosecution except in extreme cases, given the studies that suggest that rehabilitation leads to higher rates or reintegration into society and lower chances of re-radicalization.
In a policy brief published in December, the Hague-based group noted that a "harder, punitive approach" did not address the fact that "the vast majority will eventually be released. It is therefore neither 'soft' nor 'weak' to be talking about how to rehabilitate them, especially in the prison context but elsewhere as well."
The German Prosecutor's Office, which declined to give an interview for this article, has not ruled out sending the accused to one of Germany's rehabilitation programs. However, its head, Peter Frank, told journalists earlier this year that it was necessary to pursue murder charges - even if only as accessory to murder, or for attempted murder.
"We regard the events in those countries from the point of view of the Code of Crimes against International Law. Committing war crimes and crimes against humanity - just consider the actions of IS against Yezidis - is part of the essence of these terrorist organizations, " Frank said.