Published: 18 June 2020 Author: Stefan Talmon
On 27 June 2019, the Federal Parliament passed several amendments to the Nationality Act. In particular, an amendment to section 28 of the Nationality Act provided that Germans with dual nationality who take part in combat operations by a foreign terrorist organization lose their German citizenship. The Federal Government justified the amendment by saying that Germans who become involved in combat operations for a terrorist militia abroad
“show that they have turned their back on Germany and its fundamental values and turned to another foreign power in the form of a terrorist militia […] The rule on the loss of nationality ties in with the structure and content of the existing section 28 of the Nationality Act which treats service in the regular armed forces or a comparable armed unit of another State as a grave case of disloyalty which entails the loss of German nationality. This assumes that enlisting in the armed unit of another State manifests, at the same time, a turning away from Germany.”
The provision thus intends to sanction disloyalty to the German State. Germany’s Nationality Act already included a similar provision for dual nationals who join “the armed forces or a comparable armed unit of a foreign State” without the permission of the Federal Ministry of Defence.
While the final amendment spoke of “terrorist organization”, the bill submitted by the Federal Government used the term “terrorist militia”. The wording was changed at the committee stage in order to bring the provision in line with terminology used in other statutes.
The Federal Government’s bill is of wider interest as it contained a definition of the term “terrorist militia” which reads as follows:
“A terrorist militia […] is an armed group organized in a paramilitary way that – in terms of its size as well as its operational and territorial activities – aims to destroy by force the structures of a foreign State in a way that is contrary to international law and to replace these structures with new State or State-like structures.
According to the definition given, a terrorist militia is a group which, in terms of its size as well as its operational and territorial activities, is capable and intends to develop State-like power structures at least at the regional level. In any case, the object of commitment is a foreign power with a ‘claim to statehood’. […] foreign powers are not only States, but also inter-governmental power structures and military powers such as parties to a civil war or popular fronts.”
The bill was primarily aimed at German citizens who had fought for the terrorist organization Islamic State but was not limited to that organization.
The loss of nationality was only to occur in the case that a terrorist militia pursued its aims “in a way that is contrary to international law”. The Federal Government explained:
“The phrase that the aims must be pursued ‘in a way that is contrary to international law’ has been included in order to exclude ‘liberation movements’ or revolutionary forces which oppose groups or regimes whose acts are to be deprecated in terms of international law. Even if such groups do not qualify as subjects of international law per se, at least in case of rebel groups/insurgents the control question may be asked whether or not action against the State concerned by a subject of international law could be justified in terms of international law. For that reason, for example, German dual nationals were not to be considered members of a terrorist militia if they were fighting for Kurdish rebel units which were recapturing swathes of territory in northern Syria from the Islamic State with the support of the anti-terrorist alliance.”
The requirement that the terrorist militia must pursue its aims “in a way that is contrary to international law” is flawed for two reasons: first, there may be purely domestic rebel terrorist groups that are trying not just to take over the government of a State but to establish a whole new political, economic or religious order; that is, to establish a new State. As long as there is no outside involvement on the part of the rebels or other cross-border elements, such vertical civil wars between the government of a State and rebels is generally of no concern to international law and thus cannot be “contrary to international law”. Second, even if the military operations of the Kurdish rebel units against the Islamic State could be considered to be in accordance with international law, their military operations and actions against the Syrian Government might have to be judged differently. The definition of terrorist militia suggested by the Federal Government would have given rise to numerous legal arguments, considering that one man’s terrorist is another man’s freedom fighter. It is therefore to be welcomed that the term “terrorist militia” was replaced in the final amendment with “foreign terrorist organisation” – a term which, while also difficult to define, has at least been known to German criminal law for some time.
Category: Nationality and statelessness