Germany's conservatives are calling for a crackdown on homegrown Islamists seeking to join the "jihad" in Syria. But can a democratic state prevent its citizens for participating in jihad?
"The afterlife is the believer's true home," writes Philip B. on Facebook page.
On his profile, the former pizza delivery boy posts photos of Kalashnikov rifles and lists his occupation as "Allah's servant." He no longer uses the name Philip. When he moved away from Dinslaken to join the jihad in Syria, he started going by the nom de guerre Abu Osama. He's now an Islamic warrior with a German passport.
"We should consider revoking German citizenship for such people," Thomas Strobl, chairman of the Christian Democratic Union (CDU), told "Die Welt" newspaper.
But according to criminal lawyer Katrin Gierhake, German citizenship can't simply be revoked under current law. Hessen's justice minister, Eva Kühne-Hörmann, has a different approach. If it were up to her, Philip B. would have never left Dinslaken in the first place.
"Young people who want to participate in armed conflicts shouldn't be allowed to travel abroad," Kühne-Hörmann told the "Bild" newspaper.
From Syria to Europe
Gierhake says these are hasty reactions. But they do demonstrate the need to carefully consider how the law should deal with jihadists. The fact is that violent Islamists such as Philip B. or the former Berlin rapper Deso Dogg, who supposedly joined the Islamic State in Iraq and Syria (ISIS), can radicalize themselves without legal consequences and then go on to fight in the "holy war." They then use the Internet to recruit followers in German.
Germany's domestic intelligence agency claims that 320 German jihadists are currently fighting in Syria. Meanwhile, there are around 43,000 violence-prone Islamists currently living in Germany, according to the agency.
The recent shooting at the Jewish Museum of Belgium in Brussels has stoked fears that Syria's civil war poses a direct threat to Europe's security. The perpetrator of the attack, which killed four people, was a French jihadist who had returned from fighting in Syria. German authorities are now concerned that "jihad tourists" such as Philip B. could return home and carry out attacks in Germany.
'Terror camp law'
Irene Mihalic, the Green Party spokeswoman for domestic security, has criticized the CDU's proposals as populist.
"The tools provided by criminal law are fully sufficient," Mihalic told DW. "Our security agencies have to consistently make use of these tools and investigate the potential danger posed by terrorism and to confront that danger if necessary."
There's already a law on the books aimed at preventing terrorist attacks. Known colloquially as the "terror camp law," it criminalizes visiting terrorist camps and other actions taken in preparation for a terrorist attack. Passed in 2009, the law has been the subject of heated debate.
Katrin Gierhake testified against the "terror camp law" before parliament's judiciary committee. Prevention has no place in criminal law, according to Gierhake. The underlying principle of German criminal law is that only people who have committed a felony can be prosecuted. Gierhake believes the "terror camp law" turns this principle on its head by prosecuting possible future perpetrators who were allegedly preparing to commit a felony.
But how can a state protect its citizens from suicide attackers? Gierhake supports an approach in which the authorities would escalate their involvement in stages.
For example, if someone moves in the same social circles as a hate preacher, law enforcement could move to monitor the person more closely. Further steps could then be taken if a concrete plan for a terrorist attack is uncovered. For example, the authorities could require the suspect to report to them or could even impose preventive detention. But in the end, the state is powerless against what occurs privately in social circles.
"A state that adheres to the rule of law cannot criminalize a process of inner radicalization," Gierhake said. Education, upbringing, and social support - these are areas where the state can take action. "But you can't ban someone from participating in a civil war," she said.
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