German courts seek to move beyond counter-terrorism measures in path-breaking trials of fighters from the Syrian battlefields

From organisational to substantive criteria

Over the past few months, German prosecutors have cautiously embarked on new paths to bring to justice crimes committed in the Syrian Civil War. Like most of their European counterparts, German investigators had so far remained focused on offences against counter-terrorism provisions (codified in Germany under §§129a and b of the country’s criminal code).(( https://dejure.org/gesetze/StGB/129a.html ))

Consequently, until now verdicts were based on charges of terrorist conspiracy (Bildung einer terroristischen Vereinigung) and thus on purely formalistic criteria: what was penalised was only the formation or support of a terrorist association, not the substantive rights violations that perpetrators had committed in the Syrian war zone.

However, amidst the increasing rates of the return of German foreign fighters – of the more than 750 that have made their way to Syria, more than 250 returned ((https://www.icct.nl/wp-content/uploads/2016/03/ICCT-Report_Foreign-Fighters-Phenomenon-in-the-EU_1-April-2016_including-AnnexesLinks.pdf , pp. 25 f.))– and against the backdrop of the growing number of Syrian refugees in the country, prosecutors are apparently seeking to enable more ambitious judicial proceedings taking the commission of international crimes – violations of fundamental human rights and of international humanitarian law – into account.

The case of Aria L.

In July 2016, the German national Aria L. was sentenced to two years imprisonment for war crimes by the Higher Regional Court in Frankfurt. Having travelled to Syria in spring 2014, L. had not directly participated as a fighter in the Civil War – at least not to the court’s knowledge. However, pictures of L. posing next to the severed heads of two Syrian government soldiers made their way on to Facebook. ((https://olg-frankfurt-justiz.hessen.de/irj/OLG_Frankfurt_am_Main_Internet?rid=HMdJ_15/OLG_Frankfurt_am_Main_Internet/nav/d44/d4471596-ad85-e21d-0648-71e2389e4818,3ed60b46-2d1d-d551-d064-8712ae8bad54,,,11111111-2222-3333-4444-100000005004%26_ic_uCon_zentral=3ed60b46-2d1d-d551-d064-8712ae8bad54%26overview=true.htm&uid=d4471596-ad85-e21d-0648-71e2389e4818 ))

The Court viewed L.’s actions as fulfilling the criteria for war crimes set out in §8.1.9 of the Code of Crimes against International Law (Völkerstrafgesetzbuch), the code translating the Rome Statute of the International Criminal Court into domestic German law: L. was condemned for having treated a person protected under international humanitarian law – a category which includes enemy forces that are hors de combat – in a gravely degrading manner. ((https://olg-frankfurt-justiz.hessen.de/irj/OLG_Frankfurt_am_Main_Internet?rid=HMdJ_15/OLG_Frankfurt_am_Main_Internet/nav/d44/d4471596-ad85-e21d-0648-71e2389e4818,3ed60b46-2d1d-d551-d064-8712ae8bad54,,,11111111-2222-3333-4444-100000005004%26_ic_uCon_zentral=3ed60b46-2d1d-d551-d064-8712ae8bad54%26overview=true.htm&uid=d4471596-ad85-e21d-0648-71e2389e4818 ))

From foreign fighters to Syrian nationals

Significantly, the Völkerstrafgesetzbuch also contains provisions of universal jurisdiction; i.e. provisions allowing German courts to prosecute genocide, crimes against humanity, and war crimes even if they are committed by foreign citizens abroad. Normally, national courts do not have the authority to adjudicate on acts that have no connection either with the national territory (territorial principle) or with national citizens (principle of nationality). ((http://www.gesetze-im-internet.de/vstgb/__1.html ))

Consequently, the code offers the possibility to bring to justice not just ‘foreign fighters’ (German nationals or residents that have travelled to the Middle Eastern theatres of battle) but also Syrian nationals that have sought refuge as asylum-seekers in Germany after having committed international crimes. In fact, at least one trial against a Syrian national is ongoing in front of a German court, and another in preparation. The offences involved include attacks on protected persons, torture, and pillaging. ((http://www.ejiltalk.org/justice-for-syria-opportunities-and-limitations-of-universal-jurisdiction-trials-in-germany/ ))

Information from within a divided Syrian community

Syrian refugees are by now systematically asked whether they have witnessed crimes against humanity or other offences justiciable under the German code, or whether they can even name perpetrators of such offences. Asylum authorities have sent 25 to 30 tips to prosecutors per day, amounting to over 2000 indications of international crimes over the course of 2015. ((http://www.abc.net.au/news/2016-05-01/refugee-influx-spurs-germany-to-tackle-syrian-war-crimes/7374152 , http://www.ejiltalk.org/justice-for-syria-opportunities-and-limitations-of-universal-jurisdiction-trials-in-germany/ ))

At the same time, some of these tip-offs is either not verifiable, based only on rumour, or reflective of the distrust and recriminations prevailing between different groups fleeing the ravages of the Syrian war. Investigators noted that informants sometimes accused members of other ethnic or religious groups of having perpetrated war crimes without being able to furnish concrete evidence for these claims. ((https://www.tagesschau.de/inland/kriegsverbrechen-101.html ))

Challenges of evidence collection

This highlights the challenges involved in the collection and evaluation of testimonies and evidence. These challenges only grow in importance due to the fact that investigators have of course no access to the sites of crimes in Syria. Often, evidence is insufficient for the opening of legal proceedings but substantial enough that suspicions remain, leaving a bitter aftertaste among prosecutors as well as among Syrian human rights groups striving to bring perpetrators of international crimes to justice. ((https://www.tagesschau.de/inland/kriegsverbrechen-101.html ))

A related concern is that prosecutions under the provisions of the Völkerstrafgesetzbuch only target a small sub-section of war criminals from the Syrian battlefields. First of all, those responsible for the large-scale orchestration of fundamental rights violations have not left Syria and asked for asylum in Germany – meaning that German prosecutors must confine themselves to go after the small fry only. ((http://www.ejiltalk.org/justice-for-syria-opportunities-and-limitations-of-universal-jurisdiction-trials-in-germany/ ))

Moreover, there is a concern that the henchmen of Bashar al-Asad will by and large escape judgement under these provisions, since comparatively few of them have asked for asylum in Europe. ((http://www.abc.net.au/news/2016-05-01/refugee-influx-spurs-germany-to-tackle-syrian-war-crimes/7374152 )) This does not obviate the need to bring to justice fighters and commanders of other factions, above all of the more brutal Islamist and jihadist groups. Yet given the fact that it is still above all the Asad forces that have “shredded the laws of warfare”,(( https://www.hrw.org/news/2016/06/24/syrian-refugees-help-nab-suspected-war-criminals-europe )) a failure to prosecute government personnel means a heavily lopsided judicial treatment of the Syrian quagmire.

Thus, while the activation of the substantive provisions of the Völkerstrafgesetzbuch constitutes a step forward compared with the prosecution under the blanket terms of counter-terrorism legislation that punishes a formal status rather than actual offences committed, bringing justice to bear on the perpetrators of international crimes in Syria remains fraught with difficulties.

France to invest $47 million in Sahel counterterrorism training program

France plans to invest 42 million euros ($47 million) to help countries of Africa’s Sahel region prepare to face jihadist attacks similar to those that killed dozens in Paris in 2015, an interior ministry official said on Friday.

The Sahel, a politically fragile region whose remote desert spaces host a medley of jihadist groups, is seen as vulnerable to further attacks after strikes on soft targets in Burkina Faso and Ivory Coast earlier this year.

Nearby Senegal, a Western security partner with a long history of stability, has so far been spared.

“In future we will train all the countries of the G5 Sahel and Senegal with 42 million Euros in financing, including 24 million Euros for equipment,” said a spokeswoman for Interior Minister Bernard Cazeneuve during his visit to Dakar on Friday.

G5 Sahel is a regional security organisation composed of Chad, Niger, Burkina Faso, Mali and Mauritania. The investment period is 2017-2022, the spokeswoman added.

French riot control officers from the CRS are currently in Senegal for a month training Senegalese police forces to combat urban attacks on soft targets ahead of the broader programme.

In the simulation exercise watched by Cazeneuve as well as army elites and foreign diplomats, Senegalese police arrived swiftly on the scene after masked jihadists killed three students before holing up with hostages inside a university bus.

The jihadists were killed and the remaining hostages released and given medical treatment in the drill.

“We have reinforced police cooperation so that the first ones on the scene, the specialized forces, can intervene in case of mass murder with a highly efficient response,” said Cazeneuve in a speech shortly after the demonstration.

Former colonial power France retains a military presence in Senegal with 350 soldiers. A much larger force of 3,500 is spread across Chad, Mauritania, Niger, Mali and Burkina Faso to hunt down jihadists.

Senegal’s ally the United States has also boosted military cooperation with the country and this year signed a cooperation agreement to ease the deployment of American troops there.

 

French government under pressure from mayors to release watch list

The French government is resisting pressure from conservative mayors who are demanding access to a confidential list of security suspects, including thousands suspected of Islamist radicalization.

Interior Minister Bernard Cazeneuve said this week he would not provide the information to mayors who want to act against – presumably by trying to expel – residents of their cities and towns who appear on the so-called S File or S List.

Cazeneuve in a newspaper interview pointed out that people on the list, while they are monitored, are not subject to an arrest warrants “because there is no proof that they are really dangerous. They are only suspects.”

“The need for confidentiality in the investigations is essential,” he added. “Thanks to the confidentiality in the investigations, we have arrested 355 people linked to terrorist networks since January.”

Cazeneuve said the government should find a way to involve mayors in the process of preventing radicalization, but without hampering the efficiency of the intelligence agencies and their work.

Last month Guy Lefrand, the conservative mayor of Evreux, a small town in Normandy, asked intelligence and police agencies to provide him with names of people on the S List living in his city and suspected of being radicalized.

“France is under a state of emergency, and it is the duty of the state to give us access to the S List,” he told reporters at the time. “If the state won’t provide this information, I demand that they take the responsibility for removing these people from my town.”

Several other mayors joined their voices to Lefrand’s. The Association of Mayors of France plans to meet with Cazeneuve in the coming weeks to discuss the issue.

Nicolas Sarkozy, the former president who is running for a fresh term in elections next year, has promised that if he is elected he will immediately organize a referendum to ask whether citizens agree those listed in the S List should be subject to administrative detention.

First created in 1969, the S (the S stands for State Security) List includes the names of people considered potentially dangerous and therefore subject to surveillance by police and intelligence agencies.

Those listed include gangsters, anarchists, unionists, anti-nuclear campaigners and suspected Islamist radicals or Muslims in the process of radicalization. It includes people who have visited jihadist websites, met with radicals outside mosques in France, or traveled – or tried to travel – to Syria to join the jihad.

Today some 20,000 people are listed, of whom around 10,500 are suspected radicals or individuals in the process of becoming radicalized, according to numbers published at the beginning of 2016. The individuals are under physical and phone surveillance but are only subject to arrest if they commit a crime, or are suspected to be ready to do so.

The list is overseen by France’s internal and external security agencies, and only their staffers, along with senior government officials, have access. Even where police are instructed to monitor someone listed, the agencies do not generally give reasons.

Nathalie Goulet, a center-right senator and vice-chairwoman of the foreign affairs committee, initially supported divulging the names of listed people, but has changed her position.

“I agree with Interior Minister Cazeneuve not to give names to mayors or to anyone else,” she said in a phone interview. “I think it is important that intelligence agencies work in confidentiality. And don’t forget that not only does the list encompass a lot of different people, not all linked to terrorism or radicalization, but that they have not been prosecuted.”

Goulet said some of the mayors who are pressuring Cazeneuve are motivated by the upcoming elections.

“They know that there are only presumptions against the listed people, and nothing else,” she added.

 

Teen migrants head to UK as French court upholds ‘Jungle’ closure

France transferred another dozen mostly Afghan teenagers to Britain on Tuesday as efforts to rehouse the most vulnerable migrants of the “Jungle” camp in northern France accelerated ahead of its demolition.

The departures, which still amount to a small portion of an estimated 1,000 youngsters unaccompanied by adult family members, came as a court rejected a request by 11 charities that the closure of the Jungle be postponed.

A first busload of children arrived in Britain on Monday from the “Jungle” camp near the French port of Calais as the British government started to act on its commitment to take in unaccompanied migrant children before the camp is destroyed.

The court in Lille rejected the plea by local charities for more time to organize rehousing of the thousands who live there.

“It’s now just a matter of days,” Interior Minister Bernard Cazeneuve told parliament after the closure ruling was announced. “We are now nearing the moment when the operation will begin.”

A 16-year-old Afghan named Azizullah was delighted to be leaving the camp that has come to symbolize the plight of war refugees.

“My dream came true because I want to see my brother, I miss him,” he said as he readied to leave. He planned to join his 36-year-old brother, who works in a pizza restaurant on the other side of the Channel.

President Francois Hollande, facing an election in April, has promised to shut down the camp under local pressure. His government has already started rehousing thousands of Jungle inhabitants in dozens of towns and villages across France.

Regarding the specific issue of unaccompanied children and teenagers who have fled war zones such as Afghanistan, Syria and Sudan, the transfers to Britain are taking place under EU family reunification rules known as the Dublin regulations.

Charities have accused Britain of dragging its heels on such transfers, prompting a Franco-British meeting last week which has been followed by transfers of a dozen migrants like Azizullah in the past two days.

‘Cut beard or leave’: French high school student told his beard is ‘sign of radicalization’

A student of a French high school was threatened with expulsion after he refused to comply with the headmaster’s demand to shave his beard, which the headmaster considered a “sign of radicalization.”

“You cut it or you leave,” the headmaster reportedly told the student. The head teacher also reportedly claimed that the student’s beard is an apparent “sign of radicalization.”

When the headmaster first asked the student to shave or shorten his facial hair, the young man, 21, explained that he had been cultivating his beard for two years for religious reasons.

“The Prophet [Muhammed] was wearing one. It is something important to me,” the student, who wanted to remain unidentified out of fear of “being stigmatized even more.”

He also added that the head teacher’s “threats put pressure” on him and he “ended up” writing a letter to inform him that he was leaving the school. According to Le Parisien, the student has not attended school since October 13.

“He [the headmaster] gave me a few days for reflection to see if I change my mind and shave [the beard]… but I will not!” the student said. The student, who is a son of an atheist and a non-practicing Muslim, also admitted that he used to miss classes to go to Friday prayers, and said that he avoided shaking hands with his schoolmates for reasons of “decency.”

He also said that he used to wear harem pants – a sort of clothing common among Muslims – but stopped wearing them at headmaster’s request, as he agreed that it could be a religious sign. However, he still defends his right to sport a beard.

“I am not the only one with a beard, both among students and teachers,” he said. In the meantime, the young man received support from his classmates. “It looks like it was the parents who complained to the headmaster. Everything is mixed up!” one girl said.

The incident took place in the Parisian northern suburb of Seine-Saint-Denis, where some of the terrorists, who were involved in the Paris attacks in November 2015, were living.

 

 

Pope Francis invites French Muslim leaders to meet at Vatican

Pope Francis will receive a delegation from the French Council of the Muslim Faith (CFCM) in the Vatican on November 3.

The five members representing the CFCM include President Anwar Kbibech, the three Vice-Presidents and the Secretary General of the organization, Abdallah Zekri. They will meet with the Pope in a private audience after meeting with the prelate in charge of relations with Islam, French Cardinal Jean-Louis Tauran.

“I am very happy to meet the Pope because he is a man of dialogue and a man of peace,” Adballah Zekri said.

This meeting was reportedly organized on behalf of the Vatican by the French cardinals to strengthen interreligious dialogue between the two faiths, especially in the aftermath of a number of terror attacks. The French cardinals told the CFCM that the Pope had particularly appreciated the institution’s firm positions following the murder of Father Jacques Hamel on July 26 in Saint-Etienne-du-Rouvray by two terrorists belonging to the Islamic State.

The CFCM delegation will travel to Rome on November 2 for a reception at France’s embassy in Rome. On November 3, they will meet with the Vatican Cardinal in charge of relations with Islam, followed by the private audience with Pope Francis.

France has been particularly hard hit by attacks from Islamic terrorists. Besides the execution of Father Hamel, militants of the Islamic State have carried out two major attacks in Paris, as well as the slaughter of 84 civilians in the south of France as they celebrated Bastille Day.

 

New French documentary on radical Islam sparks controversy

A new documentary on the rise of radical Islam in France has sparked controversy among the French public, with viewers’ opinions ranging from praise to outrage. The filmmaker has been slammed as ‘sensationalist’ and ‘provocateur’ by the head of the town in which part of it was filmed.

The first episode of new show “Dossier Tabou” titled “Islam in France: the failure of the Republic” was aired on Wednesday, September 28 on the M6 channel. Watched by some 2.4 million viewers, it immediately grabbed public attention, topping of Twitter discussion trends.

The documentary revolved around the financing of Islamism by foreign powers, such as Saudi Arabia, its organization and its internal divisions, as well as the training of imams. In a manner of illustration, it showed excerpts from sermons by a confirmed radical cleric named Mohamed Khattabi, who had been under house arrest for nearly three months after the attacks in France in November 2015.

A part of the documentary was filmed in the northern French city of Sevran, in the department of Seine Saint Denis. The city has been regarded as a place of widespread Islamist recruitment, after at least 15 young men left it to go and fight within the ranks of Islamic State (IS, formerly ISIS/ISIL) in Syria and Iraq since 2014. Six are known to have died there.

Bernard de La Villardiere, the French journalist, radio and television presenter who authored the documentary, could be seen getting into a heated argument with local youths outside the town’s mosque which is suspected of links to Islamism and is currently being probed by authorities. The argument ended in a brawl.

One-in-four French Muslims follow ‘hardline’ Islam

A study showing that more than a quarter of French Muslims follow hardline Islam is causing discomfort for the political class, which is united in ignoring its conclusions.

Among the survey’s findings are that 28 percent of Muslims questioned follow an “authoritarian” interpretation of texts advocating a break with French society; or that more than 40 percent of young Muslims (aged 15-25) consider Islamic Sharia law more important than the secular law of France.

“They (young French Muslims) feel rejected,” Hakim El Karoui, who co-authored the report for the Institut Montaigne think tank said. “French society is sending them the message: you are not French. In a way they are getting revenge by hanging on to the identity they have.”

The embrace of hardline Islam was strongest among young Muslims who lacked jobs or strong qualifications, added El Karoui. Overall, a plurality of French Muslims — 46 percent — considered the practice of their religion totally compatible with local rules and customs.

The study should be causing waves. It’s the first major snapshot of how French Muslims view their own beliefs to be published in France, and it comes after a wave of Islamist-inspired terrorist attacks.

And yet, public reaction to the study is partial, and strained.

Robert Ménard, a far-right mayor known for his provocative positions, tweeted a link to the report, followed by the question: “Is a confrontation [with Islam] inevitable?”

Left-wing magazine Télérama took a sarcastic stance, calling the findings “unsurprising” and criticizing the study’s methodology.

“For the time being it’s total silence from the administration,” Fanny Anor, one of the study’s co-authors, said. “What we are trying to do is create data that allows us to analyze these questions based on solid evidence, so we can avoid debating purely on impressions.”

“But that’s a very uncomfortable position for the government,” she added.

While Prime Minister Manuel Valls has repeatedly voiced alarm over the spread of “political Islam” in France, the Montaigne study shows where it’s coming from: young Muslims who lack jobs and professional skills, and feel as though the French state has turned its back on them.

To rekindle faith in the French system, the study’s authors argue, France should bring the alienated population into the workforce by overriding hiring discrimination through the use of ethnic and religious statistics.

“They [politicians] feel trapped,” added Anor. “After the terrorist attacks, it’s an awkward camp to be in, arguing for measures to fight discrimination.”

 

Hollande: France has a ‘problem with Islam’

The French president, François Hollande, has said his country has “a problem with Islam” and that there are too many illegal migrants arriving in France.

He also suggested that today’s “veiled woman” could become a Marianne, the female symbol of the French republic, and attacked his rival Nicolas Sarkozy as “the little De Gaulle”.

The controversial remarks are published in a 660-page book, A President Should Not Say That: Secrets of Five Years in Office.

Hollande, 62, also spoke of the women in his life and how his actor girlfriend, Julie Gayet, wanted to be de facto first lady of France, which he said was a “hot topic” between them. He admitted he is feeling lonely and betrayed in the Elysée Palace, where he sometimes feels like a “ghost”.

The French leader, whose desperately low popularity ratings make it uncertain as to whether he will stand for a second term in office, made the comments during more than 60 interviews with Le Monde journalists Gérard Davet and Fabrice Lhomme.

The subjects covered range from Hollande’s dismay over the national football team and the new generation of players (“they’ve gone from badly educated kids to ultra-rich stars with no preparation”) to his 2012 presidential rival Sarkozy, whom he described as “a Duracell bunny who is perpetually agitated” and full of “vulgarity and cynicism”.

But Hollande confided that he would not hesitate to vote for Sarkozy if it was a choice between his predecessor and Marine Le Pen, the leadeer of the far-right Front National.

It was his comments on Islam that could prove the most controversial.

The book quotes Hollande saying: “It’s true there is a problem with Islam … and nobody doubts that. There’s a problem with Islam because Islam demands places (of worship), recognition. It’s not that Islam is a problem because it’s a religion that is in itself dangerous but because it wants to assert itself as a religion on the Republic. What might also be a problem is if Muslims don’t criticize acts of radicalization, if imams behave in an anti-republican way.”

 

He added: “The veiled woman of today will be the Marianne of tomorrow … because, in a certain way, if we offer her the right conditions to blossom she will liberate herself from her veil and become a French woman, while remaining a believer if she wishes, capable of carrying with her an ideal … Ultimately, what are we betting on? That she will prefer freedom to subservience. Perhaps the veil is a kind of protection for her, but that tomorrow she will not need it in order to be reassured of her presence in society.”

On immigration, Hollande told the authors: “I think there are too many arrivals, immigrants who shouldn’t be there … we teach them to speak French and then another group arrives and we have to start all over again. It never stops … so, at some point it has to stop.”

Laurent Wauquiez, president of the opposition centre-right Les Républicains, accused Hollande of being “willing to barter the symbol of the French republic for political Islam”. He said Hollande was “selling off the most powerful symbols of the French republic on the cheap”.

 

Marine Le Pen vows to ban ‘all religious symbols’

All religious symbols, including the Jewish skull cap, will be banned if leader of the far-right French party National Front, Marine Le Pen, is elected president next year.

“It is clear that kippahs are not the issue within our country. But for the sake of equality, they should be prohibited,” said Le Pen. “If I requested to ban solely Muslim attire, people would slam me for hating Muslims.”

In an interview with France’s BFMTV station on October 16, Le Pen said she would extend a 2004 law banning religious symbols in schools to all public spaces.

“I know it’s a sacrifice, but I think the situation is too serious these days… I think every French person, including our Jewish compatriots, can understand that if we ask them for a sacrifice in order to help fight against the advance of this Islamic extremism… they will make the effort, they will understand, I am absolutely convinced because it will be in the best interests of the nation,” she explained.

Meanwhile, the French Jewish community has harshly condemned Le Pen’s proposal to ban the kippah, reported the Jerusalem Online.