How Germany plans to strip Jihadists of their Citizenship

March 5th, 2019 - The German Ministries of Interior and Justice have come to a basic understanding about how they want to try and strip German jihadists of their citizenship. Because this is by no means a trivial matter, I thought it might be useful to describe their plan in a some detail.

1.- It's not a new plan 

The current grand coalition government has already agreed in principle to tackle this issue in their co-operation agreement upon forming a government. But until now they didn't get around to passing the respective law (or more precisely: to amend the citizenship law).

One reason for the delay is that, according to the Ministry of Justice (led by the Social Democrats) the Ministry of Interior (led by the Conservatives) demanded changes that went beyond what had been agreed upon in the coalition's co-operation agreement.

In the light of the problem surrounding the German IS population now being held in Syria in SDF camps, the issue became more pressing, resulting in declarations from both ministers that they found enough common ground to start the process.

2.- Three basic principles 

What the ministers have agreed upon, are three basic principles. They want to amend the law in such a way that the citizenship can be revoked if all of the following conditions apply:

a) person in question is older than 18 years;

b) person in question must hold at least one other citizenship, as German law forbids it to render anyone stateless;

c) person in question must have participated in battle on behalf of a "terror militia".

In addition to this it is clear that the law will only apply to future cases. So the current inmates in Syria and Iraq won't be affected no matter what.

3.- Problems of scope and definition 

Beyond the fact that an agreement has been declared, nothing definite has been put into writing. What does exist, however, is a draft for an amendment of the respective law, authored by the Ministry of the Interior. That ministry clearly expects their document to be the document of reference in the process. But it is not entirely clear that the Ministry of Justice concurs. Technically, this draft is currently in the process of reconciliation between the two ministries.

In my view, this draft contains several passages that warrant further debate. Let me give you a few examples:

a) What is a "terror militia"?

The draft document defines a terror militia as an "entity organized in a paramilitary fashion that pursues the aim of violently annihilating the structures of a foreign state and erect in it's stead new state structures or structures similar to those of a state in a manner that contradicts international law." (Translation is mine; original German version can be found in my ZEIT ONLINE article here.)

In my view, this definition fits IS almost perfectly. It does not, however, fit Al-Qaeda or Al-Shabaab, to name just two Jihadist organizations that have access to foreign fighters, all that well. Do we need a "Lex Daesh" - or rather a law that covers all Jihadist terrorist organizations? (On the other hand: if you leave the definition too open, you could end up with the problem of criminalizing the joining of groups that aren't that problematic.)

b) What if "the other state" also revokes citizenship?

What happens if Germany strips a dual German-Egyptian citizen of his German nationality, and then Egypt does the same thing - have we then not rendered him stateless at least in an indirect manner? Until now, I have not heard a good answer to this possible dilemma.

c) What if "the other state" is not a state of law? 

Let's say "the other state" does not revoke the citizenship but is very keen to receive our fictional formerly German foreign fighter - because that state wants to torture him or lock him away forever or sentence him to death? Does there not exist some degree of  responsibility on the part of Germany to prevent such treatment?

Right now, the Ministry of Interior insists that if they have it their way, this problem would not be a factor at all: German citizenship would be revoked without assessing individual repercussions.

d) Will there be legal recourse? And who calls the shots anyway? 

The Ministry of Interior says they imagine some way of legal recourse against the decision would be available. But I assume that would be theoretical mostly - since the law is aimed at people living abroad who won't be able to return to Germany after the revocation of citizenship. So it's safe to say that it's going to be very complicated to take legal action against this decision.

A decision that will be taken by ... who exactly? According to the draft amendment the decision would be up to the administrative bodies of each the 16 German states.

But here is a problem I see: It is already hard for German courts of law to prove that foreign fighters participated in a battle. How will these bodies be able to determine this with much less expertise and access to specialized resources at their hands? Will a picture on Facebook with a gun in your hand be enough? Or the statement of somebody who claims to have fought alongside of you?

All these are open questions right now.

4.- What will happen next? 

A lot depends on the Ministry of Justice now, as the ball in their court: they are expected to send comments on the draft back to the Ministry of Interior. So they have to make up their minds about how much debate and conflict they want to invite or risk - especially given that there is public pressure to get this amendment passed.

I don't want to make predictions here, but I would not be surprised if the Ministry of Justice will declare they do have a few issues with the current draft.

In fact I hope so.

I think the draft can be and ought to be improved.



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