Nothing Can Stop Ex-Daesh From Returning to Germany If They're Citizens – Prof

Sputnik: Is it legally possible to prevent former Daesh fighters from returning to their home countries if they are citizens of those countries? What rights do they have as citizens?

Menno Aden: According to German authorities, there were about 1,000 jihadists in Syria and Iraq. How many of them have returned and how many of them have died or been killed, nobody knows. It is believed 300 of them have already returned to Germany, and another 200 have died, which amounts to [a total of] 500. Of the original 1,000 jihadists, about half, so more or less official guests have or had a German passport. Who among the above mentioned 500 is a German citizen is something nobody knows for the moment.

The Basic Law of our Federal Republic of Germany says in Article 16 that German citizenship may not be withdrawn, and that the loss of citizenship may occur only on the basis of the law, and so on. There is little to add to this. If a German citizen wants to come back to Germany, he may do so, irrespective of what crime he or she may have committed anywhere in the world. A withdrawal of German citizenship, as was possible in the German Democratic Republic [i.e. East Germany] is not possible under current German law. 

Sputnik: Would it be safer just to let them return to their home countries, or just release them into Syria? There seem to be so many political and human rights connotations that we don't have any precedent for this, do we?

Menno Aden: No, we do not. The question is: safer for whom? For Germany of course it would be much safer if these fighters stayed where they are. Then they may go to courts, stand for criminal proceedings, and maybe they will be shot by someone, which in the circumstances in which they volunteered would not be unusual.

We really would not like to have them back, but as I said, in as far as they are German citizens, we cannot deny them reentry to Germany. Syria may have no interest in keeping these people in the country. They have enough problems, and they would of course be interested in handing them to anybody – maybe to Germany, maybe to Saudi Arabia, or whatever.

Sputnik: Is it legally possible to prevent their families from returning? What's the stance of Germany with regard to repatriation of the families, the wives and children of these Daesh fighters?

Menno Aden: The answer to this question actually follows from the answers I gave just now. If family members are German citizens, they can return to Germany. If not, they are not entitled to enter Germany. This is the principle.

However, German asylum law is now in disarray. Suppose a German has traveled to Syria or Iraq to serve in the war for Daesh, and we assume that he has also committed war crimes in that capacity; suppose that he married a Syrian woman with whom he has children – it was already said in [my first answer] that terrorists cannot be refused reentry to Germany if they are German citizens. In principle, his family does not have German citizenship, so the wife and children would not be entitled to enter Germany. But, as our German asylum law today is so muddled, it is likely that some authority will also allow them, in a kind of 'family reunification on humanitarian grounds' also to come back to Germany. So nobody knows for sure how to handle these cases.

Sputnik: What would the German public like to happen to these fighters once they're back? Has there been a debate in Germany about this current situation? There have certainly been debates in the UK. I'm sure you've heard about the case of the young lady with a child who is requesting to return. A lot of debate going on in the UK – what's the comment in Germany?

Menno Aden: I have followed these questions…The question has come up as a follow-up to Trump's words that he would let them go free in Syria. But I could not say what will be done with these people if they come here. I simply would say that they would be treated as everybody else, and we do not have any legal means to treat them separately from normal Germans. Simply because they are under suspicions of having committed crimes, this suspicion is not enough. We must treat them as normal citizens until they are tried in a court of law…

If we can really clearly show that these people have committed crimes in other countries, this would be tried in German courts. The most important question is whether there should be lengthened prison terms…It should be noted that the longest prison sentence in Germany is 15 years. Only murder carries life imprisonment, which is however regularly suspended after about 15 to 20 years on probation. So there is a big difference to US law. Terrorists in the US must expect to spend decades in jail. The risk for a terrorist, even convicted for murder, is in comparison relatively low in Germany. He can expect to go free again after 20 years' time.

But the bigger problem really is that a German court has to decide whether and which offenses the suspect has committed. The fact that someone has stayed within the framework of Daesh is not punishable. If a German jihadist contends that he was only involved in cleaning the weapons for the fighters, he may be sentenced for aiding and abetting, which would carry about 5-6 years in prison. But as long as he is not proven a real war criminal, for example, torturing prisoners and so on, he will always be able to defend himself that he acted on religious reasons, which would not amount to murder.

I think the maximum prison sentence of these returning terrorists would amount to 15 years in prison, which in practice would mean about 8-10 years. German criminal law is therefore relatively mild compared to most other states. If I can bring it into shorthand: if somebody wants to commit a serious crime, he should take care that he is tried in Germany.

Dr. Menno Aden is a retired professor of law from the University of Applied Sciences for Economics and Management in Essen, Germany. The views expressed by Dr. Aden do not necessarily match those of Sputnik.

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