EU’s new Gordian knot: returning Daesh terrorists

According to data from the Foreign Affairs Council (FAC) of the European Union (EU), 42,000 people joined the Daesh (ISIS) terrorist organization between 2011-2016. It is estimated that more than 5,000 of these come from Europe. While one third of the 4,000 Western Europeans who joined Daesh have returned to their countries, the rest have either died or disappeared, or are still in Iraq or northern Syria, being kept as prisoners. According to recent figures released by the Egmont Institute, there are currently 500 to 550 European men and women in Syria and Iraq affiliated with Daesh. In addition, it is thought that 700 to 750 children are being kept in camps. Following France, which has the highest number of Daesh members in northern Syria and Iraq with an estimated 130 adults and over 300 children, comes Germany with 124 adults and 138 children. They are followed by Belgium, the Netherlands and Sweden.

- Uncertainty in numbers

It is hard to determine the exact number of Daesh members holding European passports. As a matter of fact, the figures we have are very contradictory. However, when the holders of dual citizenship among them are added to the total number, the estimate comes to at least more than 1,200 Daesh-affiliated European citizens in Syria and Iraq. According to the figures of German intelligence and security units, since 2013, 50,000 people from Germany have joined Daesh, with 75 percent men, and the rest women. The majority of those who actually participated in the clashes are under 30 years of age. Of those, 220 died fighting, and nearly 350 have returned to Germany. German security units say that they have information on where more than 110 -- of those who have returned -- fought in Syria and what kind of training they had received. The latest figures from Germany, as of March 2019, indicate that in northern Syria alone, there are 56 men and women as well as 59 children, all German citizens.

- Europe's reaction to Daesh returnees

Europe has long ignored its own citizens who became Daesh militants. These people's leaving their countries was seen as bidding good riddance to a security threat, notwithstanding the fact that they had undergone most of their radicalization processes in their own European countries, turning into a serious threat to their internal security primarily. Europeans, struggling with a whole host of problems, including the terrorism of extreme right-wing, refused to confront the fact that their Daesh-affiliated citizens would one day return. However, with Daesh largely losing its influence and its terrorists being taken under control and detained in prisons or camps, a debate ensued on what should be done about the European citizens among them.

- Getting round the law

Not only Turkey, which has nearly 2,200 Daesh members imprisoned, and the United States, but also the families of the children and youngsters who joined Daesh have been pressuring their governments to bring their children back and put them on trial in their own jurisdictions. Many families in Germany have been taking to the streets and even filed lawsuits against the German state, accusing it of not acting in a responsible and protective manner towards its citizens. A German father, whose two sons joined Daesh as minors, spoke to the German 3SAT channel. He said he heard from his sons five years after the German state had assured him that both were dead, adding that the state had apparently lied to him. Families accuse the German government of prolonging matters through various excuses and bureaucratic games, while actually waiting for their children to die or disappear.

When European states came under external pressure for ignoring the issue of European Daesh militants, they, this time, started to look for ways to keep these people away from their countries. Although it was initially suggested that an exclusive international judicial platform be established for these terrorists, the differences in the legal systems of EU countries as well as the fact that such a step could not possibly be taken without cooperating with the Assad regime ruled out this possibility. Another option considered was to have all Daesh-affiliated European citizens currently detained in Iraq and northern Syria tried in Iraqi courts and serve their sentences there as well. What made this option untenable for European states was Iraq's request of an advance payment of nearly $2 billion, the fact that the sentences that could be handed down in Iraq included the capital punishment, and endemic torture in Iraqi prisons. France and Germany's requests from Iraq that the death sentences handed down to their citizens be turned into life sentences leaked out to the press, but since such bargainings could make European states beholden to Iraq, they were eventually found indefensible before the European public opinion. The last resort of the European states was to try and spare themselves the trouble of having to take these people back, by stripping them of their citizenship.

For this purpose, they have begun to make legal arrangements to revoke these people's citizenship. However, because the Jews could be easily stripped of their citizenship in the Hitler era, many European states, and primarily Germany, made it very difficult and even virtually impossible to strip people of their citizenship so that citizenship law would not turn into a political instrument. According to the laws of many European countries, including Germany, the denaturalization law cannot be enforced when the person involved will end up becoming stateless. For this reason, what they can do is revoke the citizenship of those Daesh members with dual citizenship or those currently in the process of getting another country's citizenship. Although it is possible to revoke somebody's citizenship retroactively in cases when they are found to have provided false information or concealed certain information during the issuance process, it is not seen as a quick and feasible solution since proving it is quite difficult.

Therefore, European countries, and particularly Germany, have begun to introduce legal amendments that will facilitate denaturalization. Germany, for instance, has made it possible to denaturalize German citizens who participated in an armed conflict in Syria after reaching the age of 18 in Germany. However, since the law, which came into force in April, covers only future actions, it does not provide a solution to the current problem. Most recently, a verdict delivered by the Berlin Administrative Court upholding the right of the three children of a Daesh militant to return to Germany with their mother has been ratified by the upper court, despite the Foreign Ministry's objection. For now, there seems to be no other way for European states but to take back their Daesh-member citizens and try them at home. As a matter of fact, Germany and the Netherlands have announced that they agreed to cooperate with Turkey, and Turkish Interior Minister Suleyman Soylu thanked these countries for cooperating.

- What is awaiting European Daesh members on return?

In fact, the return of European members of Daesh is not a recent issue. According to data from Germany's intelligence agency, since 2013, one-third of the 1,050 fighters who went to Syria and Iraq to fight amongst Daesh ranks have already returned to the country individually. But the fact that the Paris and Brussels attacks, which had far-reaching impacts, was carried out by Daesh returnees, made the European states more sensitive on this issue.

European states want to place the Daesh terrorists under strict control as soon as they return, since they are considered as a serious security threat. For this reason, German Foreign Minister Heiko Maas said that German citizens did retain the right to return, but readmission was possible only if they were detained or arrested on entering Germany. Because Germany wants to be able to arrest or detain these people very quickly on their entry into the country, the German Foreign Ministry asked Turkey to provide all the dossiers on the German Daesh members, and particularly all the data that would help to prove that they were involved in crimes. But this is not as easy as it is thought, because substantial hard evidence is needed to prove that these returning Daesh members had actually committed crimes in the places they were stationed by the terrorist organization. It has been confirmed officially that officials from German intelligence and security units went to Syria and Iraq this year to identify and collect information on the German citizens being kept in camps and prisons.

Most experts, who believe that Daesh members would become further radicalized in battle zones and thus become a greater threat for Europe, maintain that these people should be brought back so they can be rehabilitated under strict surveillance. However, as it is very difficult to find evidence on the allegedly committed crimes, only a small number of Daesh returnees has been arrested or is being investigated. And because there is currently no court order issued in Germany to detain the Daesh members returned last week by Turkey, it is thought that they will walk free on entering Germany. Security units, however, stated that all the Daesh returnees would be placed under strict control and monitored. There is a very high cost of enrolling the Daesh returnees in “deradicalization” programs, whose benefits are highly suspect, and monitor them all day. Considering that a total of 25 officers should be appointed to monitor a single Daesh member all day, it is clear that this is not a sustainable method in the long term. Therefore, European countries, which now have no option left but to take back all the Daesh returnees that will be sent back by a determined Turkey, will most probably be resorting to different methods to prevent the entry of Daesh members into their countries, especially if their numbers should increase.

- Why are Daesh returnees not wanted?

The basically ineffectual counterterrorism laws of Western European states, Germany included, render the decision on what to do with the returning terrorists a difficult one to make. According to Article 129b of the German Penal Code, being a member of a terrorist organization is a crime. However, when we look at the sentences delivered so far, we find that the sole crime of being a member of a terrorist organization gets one a prison term of three to five years on average. If it can be proved that the Daesh returnees were involved in civilian deaths or torture in their areas, these prison terms may be increased with additional penalties; but proving these crimes is extremely difficult. The fact that the Daesh members who returned to the country a few years ago will soon be released once the short prison terms they are now serving are over, is a source of grave concern for the security forces. No official or politician is willing to shoulder the economic and political costs and the risks that will arise from the process of taking back the Daesh members. In fact, these Daesh returnees may also become fresh propaganda material, playing into the hands of the far right, which has been on the rise across Europe, and precipitate counter-attacks from far-right groups.

Therefore, in the short and medium term, the Daesh returnees, and in the long term, the PKK/YPG-member European terrorists that will soon begin to return to their countries, will increase the security risks in Europe. To counter these as well as the far-right terrorist organizations, European states may have to change their definition of “terrorism”, expand its scope and introduce more severe penalties. An example of this is that, in 2015, Germany criminalized the leaving of Germany in order to “prepare and carry out any acts that threaten state security”. In addition, there is preparation to make the necessary legal changes to consider women who merely worked as cooks or cleaners and who did not fight in any clashes as Daesh terrorists as well.

Arresting the Daesh returnees, however, does not eliminate the security threat. Let alone eliminating any threat, these people are likely to be further radicalized in prison.

It is high time European states appreciated the fact they cannot effectively cope with this problem by reducing the factors at play in these people's joining the terrorist organization to a “theological radicalization” and to the confrontation between the so-called “moderate Islam” and “radical Islam”. Statements from European citizens who joined Daesh show that these people identify themselves with the injustices perpetrated against the superordinate identity they feel a sense of belonging to and against their communities, which in turn just goes to show that the real problem lies much deeper. Additionally, the fact that most of those who joined Daesh have criminal records shows that the socioeconomic and integration dimensions of the issue have also long been ignored.

European states must stop marginalizing Muslim minorities at once, since these states will be needing the help of religious communities in rehabilitating those who joined Daesh with religious motivations but later regretted that and in integrating them back into society. Instead of marginalizing Muslims, European countries must respect and support the deep-rooted religious traditions in the continent against modern terrorist organizations that use religious references but which have nothing to do with the tradition; European countries must particularly cooperate with and support the Turkish-Islamic Union for Religious Affairs (DITIB) and similar Turkish NGOs from which only a negligibly small number of people joined Daesh.

By Zeliha Eliacik

- The writer is researcher at SETA's Directorate of European Studies, working on Orientalism, minorities in European and Muslim societies, Islamophobia and the foreign policy of Germany.