Trials of former IS fighters in Germany: Opportunities and pitfalls

German prosecutors are getting creative in their attempts to bring the crimes of the Syrian civil war to court. This includes bringing charges against former security officials of Bashar al-Asad’s regime for war crimes and crimes against humanity. And it involves attempting to bring the fighters of the so-called ‘Islamic State’ (IS) to justice.

Charges of genocide, war crimes, crimes against humanity

The number of trials against former IS militants has been on the rise in Germany, partly fuelled by public anxieties about ‘returnees’ (Rückkehrer) from the battlefields of the Levant. Judicial proceedings are complicated by a number of factors – above all by the difficulty of tying particular individuals to specific crimes committed.

This issue also looms large over a trial begun in Frankfurt in late April, 2020: An Iraqi man is facing charges of genocide, war crimes, and crimes against humanity, in connection with the IS’ treatment of the Yazidis.

The defendant is accused of having slowly and painfully killed a five year old Yazidi girl, purchased as a slave. His German wife is facing her own trial; and her failure to save the girl is part of the charges brought against her.1

Doctrine of universal jurisdiction

The Frankfurt trial is path-breaking: for the first time, a German court is weighing charges connected to the attempted extermination of the Yazidi minority. And in trying an Iraqi man for alleged crimes committed on the territory of the self-declared caliphate, the prosecution is pursuing a purely international offence.

On the one hand, German courts have become increasingly activist in their reliance on the doctrine of ‘universal jurisdiction’. This doctrine allows the German judiciary to prosecute serious international crimes even if they were not committed either by a German citizen or on German territory.

On the other hand, prosecutions have at times been aided by the fact that perpetrators of these international crimes may now reside in Germany: by now, 300 supporters of IS and other militant groups have returned to the Federal Republic.2 And among the many refugees who have arrived since 2015/2016, there are also some individuals who – at some point during the long-winded Syrian conflict – have committed atrocities on behalf of one of the warring parties.

Understanding IS and its rule

In the eyes of German prosecutors, these trials of IS’ supporters also serve to highlight the extent of the group’s appeal. For instance, the role of women used to be considered a minor aspect of militant organisation. Yet in a range of ‘post-return’ trials, women have figured prominently as defendants.

It is not only that women were actively involved in maintaining IS’ reign over the territories it conquered. (A particularly well-known example of this is the all-female Al-Khansaa brigade, a kind of morality police established under IS rule).

Female members of IS also held slaves or participated in the looting of properties left behind by refugees fleeing the group’s military advance. All of these acts constitute offences under international law and are thus part of German prosecutorial efforts.

Predominance of ‘classical’ counter-terrorism law

Yet the bulk of (former) IS members and supporters with German nationality are not sentenced on the lofty grounds of international law. Rather, most ‘returnees’ are tried and convicted on the basis of German national counter-terrorism law.

Nor do trials on the grounds of international law necessarily lead to harsher sentences: like other European countries, Germany has dramatically increased the penalties attached to ‘membership in a terrorist association’ (Mitgliedschaft in einer terroristischen Vereinigung).

This means that the mere fact of having travelled to Syria to join certain militant groups is sufficient to jail individuals for up to 10 years – irrespective of the substantive crimes committed.3

Shortcomings and uncertainties of juridical approaches

At the same time, dealing with these individuals primarily through a juridical lens brings at least three distinct problems.4 First, some observers criticise the slowness of prosecutorial work. Indeed, the gathering of incriminating evidence that ties specific individuals to specific groups, sites, and activities is hampered by the remoteness and inaccessibility of the Levantine battlefields.

A second critique asserts that the juridical apparatus is too inflexible in its approach, incapable or unwilling to take into account the nuances of personal journeys and ideological commitments. Hence, even those defendants that have credibly distanced themselves from IS and given security agencies valuable information (which may, incidentally, lead to further arrests and prosecutions) find themselves languishing in prison for long years.

A final worry focuses on the long-term perspective: what happens after individuals are released from prison? Any stint behind bars will come to an end eventually; and many commentators fret about the (in)ability of prisons to bring about detainees’ ‘deradicalisation’.

Reproducing societal ‘unease’ vis-à-vis diffuse ‘threats’

Thus, attempts to deal with the ‘jihadi problem’ in a juridical mode are unable to satisfy the social desire for security. In fact, difficult prosecutions, tortuous attempts to make vague legal categories ‘stick’ to the concrete features of the case at hand, and the perceived opacity of the ‘jihadi threat’ mean that these legal proceedings amplify rather than reduce public anxieties.

French social scientist Didier Bigo has theorised this sense of “general unease”. It is ceaselessly reproduced by the machinations of a wide range of security professionals, who attempt to deploy techniques of judicial management vis-à-vis a diffuse and ever-shifting group of transnationally mobile ‘migrants’, ‘criminals’, and ‘terrorists’.5

This is not to argue that crimes committed in Syria should not have legal repercussions. Yet as the abovementioned worries about the insufficiencies of juridical responses show, conceiving of the Syrian jihad as an ‘(international) crime’ to be prosecuted and sentenced is unsatisfactory – insofar as these legal proceedings always fail to get to the heart of the ‘jihadi’ phenomenon. After the court case is concluded, the jihad remains as inscrutable and incomprehensible and diffusely threatening as before.6

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  5. See Didier Bigo, “Security and Immigration: Toward a Critique of the Governmentality of Unease”, Alternatives 27, 2002, p. 63.  

  6. For an alternative, more political and more fruitful understanding of what a ‘jihad’ might mean for its transnationally mobile fighters, see Darryl Li’s excellent recent book The Universal Enemy: Jihad, Empire, and the Challenge of Solidarity (Stanford: Stanford University Press, 2020).