Radical men and sympathizing women? Gendered constructions of agency in charges of terrorism in Germany
| Author | Viktoria Roth,Kerstin Eppert |
| Published date | 01 December 2021 |
| Date | 01 December 2021 |
| DOI | http://doi.org/10.1177/20322844211060227 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2021, Vol. 12(4) 552–574
© The Author(s) 2021
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DOI: 10.1177/20322844211060227
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Radical men and sympathizing
women? Gendered
constructions of agency in
charges of terrorism in
Germany
Kerstin Eppertand Viktoria Roth
Institute of Interdisciplinary Conflict and Violence Research, Bielefeld University, Bielefeld, Germany
Abstract
In the past, scholarly research in extremism and terrorism studies tended to analyse women’s
engagement with violent ideology-basedgroups from a normative angle, framing female commitment
to radicalideologies and violence as cases of inherentvictimization or as instigatedby a dominant male.
Particularly in the negotiation of women’s transnational support of terror organizations in Syria,
genderedframes of political agencyhave been reproduced in the institutional practicesof the judiciary.
Taking the caseof Germany and four appeals lodgedat the Federal Court of Justice between2015 and
2017 as examples,this article analyses genderedconceptions of agency in argumentation with respect
to criminal liability in the context of extremist engagement in Syria. It identifies, first, the gendered
constructionof defendants before the courts and inherentlygendered assumptions about agency and
second,a formal organizationalunderstanding in the terrorismclauses as the two underlying problems
and suggests thatcurrent concepts in terrorism normsat national, EU und internationallevels deflect
the focus on the wider conflict dynamics where civilians’support to violence is concerned.
Keywords
gender, criminal law, terrorism norms, female agency, ISIS
Introduction
In Europe, criminal court cases on charges of terrorism and support for terrorist organisations are on
the rise as a consequence of the substantial transnational mobilisation and recruitment of foreign
Corresponding author:
Kerstin Eppert, Institute of Interdisciplinary Conflict and Violence Research, Bielefeld University, PO Box 100131, 33501
Bielefeld, Germany.
Email: kerstin.eppert@uni-bielefeld.de
supporters by Islamic State (ISIS) and its affiliates. With the military decline of the organisation and
the return of its civilian supporters to their countries of origin, national courts are now tasked with
bringing to justice those citizens who participated in, and committed crime s for, the terror regime.
1
In the case of Germany, until 2017, the Federal Prosecutor General (Generalbundesanwalt, GBA)
predominantly dealt with young men who had been recruited by Islamist groups and travelled to
Syria or Northern Iraq to join terrorist organisations as combatants or to provide logistical support
and medical care. Since 2017, however, public Prosecutors in Germany increasingly seek to indict
female supporters and recruits.
2
This is due, in part, to evolving knowledge and acknowledgement
of the role of women in terrorist organizations and support networks on the part of legal agencies, as
well as to the substantial number of female returnees from Syria and Iraq.
In contrast to cases involving male defendants, earlier trials involving female defendants were
marked by a procedural recourse in the form of appeals to the Federal Court of Justice (Bun-
desgerichtshof, BGH), that aim at the judicial review of the applicability of terrorism clauses to acts
of support performed by female offenders. Between 2015 and 2018, four appeals of this kind were
lodged before the BGH contesting the legal assessment of complicity and perpetratorship in the
context of terrorist activities. While these appeals appear to relate mainly to substantial questions of
German criminal law (Strafgesetzbuch, StGB), analysis shows that a more complex problem has to
be considered here too. This concerns gendered assumptions of human agency inherent to the law
and gendered contexts of transnational engagement in the ideological project of ISIS. The cases
illustrate that, in regard to criminal law, tension arises from the application of state-centred legal
norms of terrorism to the current dynamics of transnational mobilisation, on the one hand, and the
recruitment and deployment of men and women to ISIS-territories, on the other hand. In particular,
acts relating to charges of ‘preparation of a state-threatening act of violence’(§89a StGB), and
‘support to’and ‘membership of’terrorist organisations (§129a, b StGB), emerge as central but
contentious norms in the court appeals. All norms of StGB discussed here were integrated into
national legislation in response to EU legal instruments.
3
The discussion of the cases intimates that,
with regard to national law, the questions of ‘What actions threatens the state’? and ‘What con-
stitutes support to or membership of’in a terrorist organisation? may need to be reevaluated against
the context of the wider conflict in Syria and Iraq. More particularly, we suggest that, when looked at
from the perspective of current terrorism legislation at EU and domestic levels, the wider effects of
civilians’transnational support to organised violence in Syria escape domestic and international
1. ChristophePaulussen and Eva Entenmann, ‘Addressing Europe’s Foreign Fighter Issue’[2014] 25 Secur. Hum. Rights 86;
Sharon Weill, ‘French foreign fighters: The engagement of administrative and criminal justice in France’[2018] 100 Int.
Rev.Red Cross 211; Alexander Murray, ‘Terrorist or ArmedOpposition Group Fighter? The Experience of UK Courts and
the Implications for Public International Law’[2018] 20 Int. Community Law Rev. 281; Sharon Weill, ‘Transnational
Jihadism and the Role of Criminal Judges: An Ethnography of French Courts’[2020] 47 J. Law Soc.
2. Data from GBA press releases (Cases involving female defendants; 2014 (3), 2016 (1), 2018 (1), 2019 (11), 2020 (7), see
<https://www.generalbundesanwalt.de/DE/Presse/Archiv/archiv_node.html>.
3. For full text on §89a StGB, see <https://dejure.org/gesetze/StGB/89a.html>; for §129a and b <https://dejure.org/gesetze/
StGB/129a.html>and<https://dejure.org/gesetze/StGB/129b.html>. All translationsof legal texts were carried out by the
authors,citationsof laws are cut to essentialsas relevant tothe argument. Directive(EU) 2017/541of the European Parliament
and ofthe Council of 15 March2017 on combating terrorismand replacingCouncil FrameworkDecision 2002/475/JHAand
amendingCouncil Decision2005/671/JHA [2017]OJ L88/6, art. 8–12, 15 and 16 providethe equivalent norms,particularly
“serious crimes…that aim...to seriouslyintimidate a population,to unduly compel a government…to performor to abstain
from performingany act, or to seriously destabilise or destroy thefundamental political, constitutional, economic or social
structures of a country”(ibid. art. 8).
Eppert and Roth 553
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