Radical men and sympathizing women? Gendered constructions of agency in charges of terrorism in Germany

(a) Presentation of cases

Case 1 ⁵² was tried by the BGH in October 2015 on the appeal of the GBA in response to the acquittal of the accused in the previous instance. The Federal Court rejected the appeal and reiterated the previous court’s ruling. The case details are as follows. In early 2014, the female defendant L. (civil status: divorced) migrated to Syria with her two minor children to become the second wife to K., a fighter of the Jabhat al-Nusra (JAN) militia whose political aims she sympathised with. ⁵³ Her migration was facilitated from Syria by M., K’s first wife, with whom L. had been in contact throughout the process. During her sojourn in Syria, L. received training in the handling of a Kalashnikov (AK-47) and a machine gun. Her family further had hand grenades at their disposal that were destined for self-defence purposes in case of confrontations with rival militias or the Syrian Army. According to her statement, the defendant had been prepared to use these weapons for self-defence and to kill potential assailants. As a result of continued fighting, the family was compelled to move several times so as to remain behind moving frontlines and evade armed confrontations. On 23 May 2014, the defendant returned to Germany as, in her assessment, the situation was getting too dangerous for herself and her children. In 2015, L. was charged by the GBA on the grounds of §235 (2) StGB (parental child abduction) as she had taken the children against the will of their father, and §89a. The first instance court convicted the accused on charges of §235 (2) StGB and sentenced her to 18 months’ probation; the charges on grounds of §89a StGB, however, were rejected for lack of evidence.

Case 2 ⁵⁴ was decided by the BGH in April 2017 on the appeal of the defendant following his indictment on charges of §89a (2a) StGB. The Federal Court rejected the appeal and ruled that the norm had been applied correctly. The details of this case are as follows. In 2015, the defendant attempted to migrate to Syria on two occasions, where he planned to join the armed struggle of an Islamist organization, presumably JAN or an associated branch. The defendant intended to get himself trained in the use of firearms and explosives to support the fight against the Assad regime ‘in the name of jihad’ ⁵⁵ and defeat the Syrian state. On his first attempt to migrate to Syria in June 2015, he failed to cross the Turkish–Syrian border and returned to Germany within 2 days. On his second attempt in October 2015, he was arrested at the airport. The police seized his one-way ticket to Adana, Turkey, outdoor clothing, two cell phones and 270 EUR in cash. The court of first instance declared the accused guilty as charged and sentenced him to two and a half years in prison.

(a) Construction of the defendants’ subject positions under the charges

The courts’ argumentation in Case 2 emphasises that, even though his migration to Syria failed, the defendant travelled abroad with the intent to undergo military training and join the armed struggle, which would have enabled him to commit acts against the Syrian state as charged. The court considered evidence on the imminence of his engagement as sufficient. In regard to the legal assessment of state-threatening violence, the argumentation specifies that a threat to the state emerged from the defendant’s intended participation in armed conflict, in particular inasmuch as this would have included the projected killing of soldiers of the Syrian Army. ⁵⁶ In his defence, the appellant argued that regardless of the participation of third-party individuals, the conflict in Syria was ongoing and the Syrian state was already substantially impaired in certain areas in terms of internal security and the local population’s trust in state protection. To this the BGH responded that these contextual arguments neither held nor served to benefit the appellant: ‘On the contrary, the substantial destabilization of the security situation observable in Syria is one of the reasons that even the participation of individuals—even in isolated instances—of armed confrontations may suffice to severely impact the capacity of the Syrian state to defend itself against such interferences because, in the end, the outcome of a series of—further—destabilizing acts might be the collapse of the state system at any time’. ⁵⁷

In Case 1, on the other hand, the BGH emphasised that a civilian sojourning with a member of a foreign terrorist organisation in a war zone could not be considered to be preparing a state-threatening act of violence even if he or she was instructed in the use of firearms for the purpose of the self-protection and protection of his or her family. ⁵⁸ On this particular issue, in their appeal, the Public Prosecutor contested the previous court’s argument that ‘it was doubtful [as] to whether a willingness to use weapons or the killing of a number of government troops in potential though in no way concretized attacks was at all designed and apt to threaten the existence and security of Syria’ ⁵⁹ , by arguing that, beyond any doubt, the killing of members of the Syrian Army was apt to compromise the security of the Syrian state. The BGH, however, reiterated the previous court’s argument, suggesting that ‘not every act of violence against the life and limb of combatants in an armed conflict is apt per se and without consideration of further circumstances to fulfil the state protection clause’. ⁶⁰

In addition to the necessity of intent and purposivity to commit violent acts, the organisation of violence matters in the consideration of §89a StGB. The addition of that norm to German criminal law, so the court argued, aimed at ‘allowing a more effective prosecution of (individual) perpetrators who are not incorporated in organisational structures… particularly in view of the increasing decentralisation particularly of organisational structures of militant Islamism’. ⁶¹ ‘The ratio legis of the norm thus aims at the prosecution of individual terrorists’. ⁶²

(b) Impact of individual acts on state security in the context of civil war

From the juridical perspective, the argumentation does not require further discussion since the decisions underline how, for Case 1, the behaviour and intentions of the defendant while in Syria do not fulfil the requirements of the norm, whereas Case 2 highlights the essential behavioural features and intent that the norm has in view—as intended by EU legislation. From a socio-legal perspective, however, three intertwined aspects of the courts’ and prosecution’s argumentation are of interest and require further debate, as they provide the basis for the gendering of both crime and defendants. The three aspects are: firstly, the assessment of the defendants’ agency with regard to the danger they posed to the Syrian state, which strongly relies on the construction and semantics of active or passive subjects; secondly, the temporality of potential actions implied by notions of imminence or improbability; and, thirdly, the referral of actions to the public or private space. When disentangled, so we argue, these dimensions allow us to understand the way in which legal subjects are constructed in the semantics of the respective criminal law or, rather, in its application.

The delict of preparations for ‘state-threatening act of violence’ includes elements of projection, intention and premeditation—it thus concurs with the temporal embedding of agency defined above. Its object is ‘the state’, that is, the state’s representatives and its (immaterial) and sovereign symbols such as, for example, the monopoly of power. The agent perpetrating the threat is thus active and resolved and thereby holds both physical and symbolic power by which the degree of danger that he or she poses is defined. In the courts’ argumentation, the negotiation of the defendants’ destabilising potential towards the Syrian state is based on access to and intent to use weapons of war as well as the objects of potential violent acts. While one defendant had already received weapons training, the other had not, but intended to acquire it. While the former argued that the object of violence was indiscriminate (state or non-state) and that her actions were dependent on the emergence of a life-threatening situation for her family, the intended object of potential violent acts by the latter, according to his resolve, would have been primarily representatives of the Syrian state. Against these contexts of intent and resolve, the potential killing of non-state fighters does not receive particular consideration from the court—the killing of Syrian soldiers, however, and the context of an ongoing civil war towards which the defendants positioned themselves intentionally and deliberately are assessed differently in each case. In Case 1, the defendant’s resolve to use weapons is legitimised by self-defence against attacks by the Syrian army ⁶³ , invoking her duty as a mother and carer to her family, yet, the likelihood of an incident occurring is expressed in the conditional tense, since she—or, rather, her clan—made efforts to withdraw from frontlines, and a confrontation with Syrian soldiers was considered by the court to be somewhat ‘inconcrete’. ⁶⁴ In the case of the female defendant, the court of first instance suggested that it was unlikely that the ‘killing of a number of government troops in potential … attacks was … apt to threaten the existence and the security’ ⁶⁵ of the Syrian state. In the case of the male defendant, the court of appeal expressly referred to the context of ongoing war and highlighted that ‘even the participation of individuals—even in isolated instances—of armed confrontations’ ⁶⁶ might impact state security and, within this context, the outcome of a series of such events might ’be the collapse of the state system at any time’. ⁶⁷

The content analysis of the documents shows that the interpretation of the norm implies different social categories for male and female defendants that possess their own semantic framing and temporal description of agency. Where the male defendant is described as an active agent, a ‘future member’, future trainee/paramilitary, ‘planning to use the skills he is about to acquire’, and both his objective in migrating and his political intent are presented as if there were an almost undisputed likelihood of their being accomplished, the female defendant is presented as a passive civilian, ‘sympathizing with’, ‘wife to’, ‘mother’, who ‘accepted the offer’ to migrate to Syria, marry K. and join the clan. Her possible involvement in violent action is placed in the realm of the improbable, expressed by the conditional tense. These semantic frames finally also reflect the last of the three issues of concern: the structure of the public and the private sphere. As the BGH emphasises, §89a was formulated to enable the preventative prosecution of the ‘individual terrorist fighter’ in the ‘militant Islamist area’ by taking into account their often ‘loose connection to formal organisational structures’. ⁶⁸ These specifications acknowledge male opportunities, roles and resources for participation in organised violence specifically, as they are visible and recognized in the public sphere. In regard to the binary ‘individual–state’ relation specified in the norm and its focus on state security, female engagement in violent structures, which empirically differs from that of male supporters, cannot be recognised and is subsequently relegated to the private sphere. ⁶⁹ As a consequence, in the present case, the defendant’s decision to migrate to Syria and engage with the civilian compound of the JAN is depoliticised, her agency consists neither in physical nor symbolic power. Inasmuch as it is recognised by the court, it is confined to her roles as a mother and spouse. Consequently, her decision to return to Germany after a few months for security reasons and fear for her life and that of her children is aligned with her maternal role.

As the BGH stated, ‘not every act of violence against the life and limb of combatants in an armed conflict is apt … to fulfil the state protection clause’ ⁷⁰ , yet, there are inherent assumptions and normative premises encased in §89a that may privilege the adaptation of the norm to male over female participation in violence.

(a) Organisational and agency dimensions of ‘support’

Case 3 ⁷¹ (BGH StB 18/17) concerns a complaint by the Public Prosecutor against the Higher District Court’s (Oberlandesgericht, OLG) refusal to open main proceedings in the case of the two female defendants on charges of §129a (5) StGB. The two defendants S. (female friend of P.) and O. (sister to P.) were accused of having jointly organised a collection of funds for the convicted P. (member of JAS) as agreed with P. by phone on 17 November 2013. At that time, P. was staying in Syria and active with JAS. In December 2013, S. handed €275 to O. In January 2014, O. flew to Syria to deliver the money to her brother in person. In addition, she also brought him clothing, foodstuffs and sanitary products for personal use. Both defendants were aware of P.’s enrolment with JAS and shared the ideology of jihad which they intended to support through their proxy contribution to P. They explicitly approved of the redistribution of the supplies to and their use by third parties.

In its decision on the case, the BGH reaffirmed the OLG’s decision not to open main proceedings as the evidence provided by the Public Prosecutor was insufficient to make a successful trial and the conviction of the defendants likely. One of the main arguments in the OLG’s decision was based on the issue that—from the evidence provided—the financial and other resources collected by the defendants had only benefited P. personally and that there was no evidence of a benefit to JAS. Although contributing to a member’s well-being might constitute an indirect benefit for the organisation, so the court argued, insofar as it might enable, for example, an improved performance by the member, or increase his capacities and willingness to contribute to the organisation’s aims, this effect would still need to be proven in an objectifiable and path-dependent manner. Such proof would be constituted, for example, if the funds had been used for the procurement of ammunition or any other functional equipment within the organisation. The court further outlined the negligibility of the funds in terms of financial support by pointing to the fact that, upon his return to Germany, P. was in possession of some €1500 in cash. This, so the OLG concluded, gave reason to believe that P. might not even have used the funds provided by the defendants. As to the other items, the court concluded that these could be considered basic livelihood support among relatives despite the rather unusual means by which they were transferred. ⁷² The court acknowledged the potentially positive effect of the donation on P.’s well-being and his performance within JAS, but underlined that there was, however, no evidence of an objectifiable use for the benefit of the organisation. ⁷³

In its statement, the BGH focused on clarifying the different dimensions attached to charges of ‘support’ in cases of civilians’ engagement with affirmed members of a terrorist organisation. It explained, firstly, that the notion of ‘support’ as per StGB included ‘any action of a non-member that strengthens the internal coherence of an organization or criminal association’ ⁷⁴ and that ‘facilitates its carrying out of criminal acts or positively impacts its space of action and objectives and, in so doing, makes it more dangerous’. ⁷⁵ Secondly, with regard to ‘objectivity’, the BGH emphasised that ‘it is both necessary and sufficient that the act of support is in and by itself objectively useful for the organisation and produces some kind of benefit for it … it is not necessary to establish an objectifiable benefit for the organisation that follows from the supportive act’. ⁷⁶ Lastly, concerning the question of immediacy and the organisation’s making use of support provided, ‘it is sufficient to establish that the supportive act produces some kind of advantage for the organisation. An activity which, in substance, constitutes an aid to the member’s participation in the criminal organisation, in principle also constitutes a sufficient benefit to the organisation’. ⁷⁷ ‘This,’ so the argument continues, ‘applies in all cases where the perpetrator encourages a member to carry out a task which has been assigned to him by the organization, or enhances the member’s determination to commit offences that serve the purpose of the terrorist group or that are in line with the group’s activities’. ⁷⁸

Further, the BGH argued that the prosecution provided sufficient evidence neither of the transfer of funds or goods for organisational purposes nor on their relevance to P.’s engagement in the organization. ⁷⁹ In conclusion, therefore, ‘the defendants neither supported JAS by promoting their activities and terrorist objectives nor by aiding and abetting P.’s activities as a member’. ⁸⁰

(b) Organisational and agency dimensions of ‘membership’

In Case 4 ⁸¹ , the GBA submitted a request for an arrest warrant, within the scope of their investigation of the defendant on charges of membership of a foreign terrorist organisation and membership-related activities (§129a, b StGB). The defendant H. and her spouse B. had decided to join ISIS in 2016. As agreed with a middleman, they flew to Turkey in March 2016 from where a smuggler helped them move to Syria. Subsequently, they lived in ISIS-controlled territory, initially in Syria, later on in Iraq, where B. worked as a nurse. Based on B.’s work, the couple received a monthly allocation of US$100 from ISIS. In November 2016, the defendant gave birth to a child. From late 2016 on the couple were compelled to move several times due to the deteriorating security situation in the region. In August 2017, the defendant and her spouse entered Peshmerga-controlled territory with the help of a smuggler and were arrested. At that time, H. was pregnant again. During her sojourn on ISIS-held territory, the defendant was in charge of household chores and managing all necessary tasks for their living such as, for example, grocery shopping.

In its appeal to the BGH, the Public Prosecutor argued the defendant’s membership-related engagement with ISIS as follows. Firstly, by travelling to ISIS territory, the defendant ‘submitted herself to the control of the organisation’ and by her presence supported ‘the expansion of its human resources’, which also exerted a ‘pull-effect on like-minded people in Europe’. ⁸² Thanks to her appearance, being a foreigner and Western European, and her position within the organisation, the defendant could be identified as a member of the organisation’s inner circle and, therefore, as a supporter. ⁸³ In contrast to the local population’s forced acceptance of the ISIS regime, her presence was to be construed as the outcome of an intentional and informed accession to ISIS. ⁸⁴ Secondly, in the narrative of the Caliphate, so the prosecution’s argument continued, women’s roles were central given their focus on household chores and, in the case of married women, on giving birth and educating their children according to ISIS ideology. In performing these tasks and duties while her spouse worked in an ISIS-administrated hospital, the defendant ‘breathed life into the idea of a Caliphate’. ⁸⁵ She accepted and complied with that role as expected by the organisation and, consequently, contributed to its objectives in an active manner. Furthermore, by giving birth to her first child on ISIS territory and through her renewed pregnancy there, she made an ‘active, membership-related contribution’, aiming at increasing the organisation’s ‘state constituency’. ⁸⁶ The organisation’s acknowledgement of her continued presence and participation in local life was further evidenced, so the prosecution’s argument ran, by the payment of monthly family allowances. ⁸⁷

The BGH reaffirmed the previous court’s rejection of an arrest warrant and substantiated its response by clarifying the legal definitions of ‘membership’ and ‘criminal and terrorist organisation’ as relevant to §129a StGB in the context of ISIS and the Caliphate as the organisation’s political project.

As per StGB, the term ‘terrorist organisation’ refers to a ‘longer-term association’ of ‘at least three people’ who subjugate their individual will to a collective one in the pursuit of a ‘common objective’ ⁸⁸ and who share a ‘collective understanding of their association’. ⁸⁹ Membership-related activities require some kind of ‘formal integration’ of the perpetrator into the organisation ⁹⁰ —the fulfilment of supporting activities alone does not confer membership status. Finally, membership refers to a ‘relation of mutual consent and recognition’ ⁹¹ , that is, it cannot be forced upon the organisation by a non-member. Additions to this definition are provided by the European Council Framework Decision (CFD) on the fight against organised crime ⁹² which broadens this hierarchical and quasi-formal understanding of organization so as to correspond to the evolution of the structures of organised crime. In particular, the CFD details that neither specification of members’ roles nor continued membership nor a specific organisational structure is a necessary requirement to define a terrorist organisation. In addition to StGB’s focus on small organizational units with a consensual ideological base, the CFD also includes organisations that are hierarchical, interest-based and that operate without a collective identity. In every other respect, the CFD concurs with the definition of StGB.

Against the background of these definitions, the BGH concluded that, in regard to the defendant’s engagement in Syria and Iraq, she could neither be considered a member of a terrorist organisation nor as engaging in membership-related activities as suggested by the prosecution. The decision detailed that ‘everyday life on ISIS territory cannot be equated with the organization itself’ ⁹³ and as such, sojourning on the territory of the organisation did not make any person a member of the organisation. By consequence, ‘the everyday life of such persons living in the “Caliphate” does not constitute a membership-related activity’ ⁹⁴ , this particularly applies to women who decided to live with a member of the organization and gave birth to a child emerging from that relationship. As far as the court was concerned, direct support by the defendant to ISIS delivering so much as an indirect advantage in regard to the fulfilment of its organizational objectives could not be recognised. ⁹⁵ As for her assisting her spouse in membership-related activities by enabling his engagement as a nurse in an ISIS-controlled hospital, the court noted that there was evidence of neither physical nor psychological support from her. More specifically, in terms of physical support, her daily tasks were limited to mere housekeeping and grocery shopping and, in terms of psychological instigation, there was no indication in the indictment that the defendant had influenced her spouse in his decision to join ISIS. ⁹⁶ Further, based on the lack of evidence in regard to her ‘representative functions’ as an expatriate supporter of ISIS the court neither followed the prosecution’s argument that her foreignness and association with members of the organization was sufficient to create the impression of membership nor did it recognise any indication of representative functions or other tasks delegated by the organisation. ⁹⁷

In the course of further investigations into Case 4, information became public that two years prior to her most recent sojourn in Syria, the defendant H. had already been to ISIS-controlled territories with her previous spouse. ⁹⁸ After he died in combat, she returned to Germany, contacted her second spouse online and returned to the Caliphate with him. According to the prosecution, her knowledge of the local ISIS structures also helped situate her spouse as a nurse. ⁹⁹ Consequently, H. played a decisive role as the initiator and decision-maker as regards the migration to Syria and did not merely follow.