Authors: Paul Burke & Jonas Feltes
The institutionalized fight against terrorism in the Federal Republic of Germany did not start with the events on September 11, 2001, but dates back to the 1960’s and 1970’s. Although domestic terrorism was the main focus of German security agencies especially from the 1960s to the 1990s, international terrorism and specifically Islamist terrorism began to pose an additional challenge to the German counter-terrorism apparatus in the early 2000s. Thus in the aftermath of 9/11, the German government did not need to design a counter-terrorism architecture from scratch, but they instead refocused those counter-terrorism institutions, legislations, and strategies already in existence. The majority of these were established in the 1970s as a response to the activities of domestic terrorist groups such as the Red Army Faction (RAF).
5 Counter-Terrorism Strategy and Tactics
1 Introduction and Context
The institutionalized fight against terrorism in the Federal Republic of Germany did not start with the events on September 11, 2001, but dates back to the 1960’s and 1970’s. Although domestic terrorism was the main focus of German security agencies especially from the 1960s to the 1990s, international terrorism and specifically Islamist terrorism began to pose an additional challenge to the German counter-terrorism apparatus in the early 2000s. Thus in the aftermath of 9/11, the German government did not need to design a counter-terrorism architecture from scratch, but they instead refocused those counter-terrorism institutions, legislations, and strategies already in existence. The majority of these were established in the 1970s as a response to the activities of domestic terrorist groups such as the Red Army Faction (RAF).
Due to the historical focus on the issues of domestic terrorism and the more complex, global threat of groups like Al Qa’eda and the self-proclaimed Islamic State (ISIL), the German security apparatus has constantly been updated and refocused. The following section offers a brief description of the current terrorist threats in Germany as well as a more detailed analysis of German counter-terrorist institutions, legislations, and strategies in the fight against global groups such as Al Qa’eda and ISIL.
2 Threats
Terrorist activities in Germany are not a novel phenomenon. Starting with the student protests of the 1960s and the resultant formation of radical left-wing groups in the 1960s, the German security apparatus faced a variety of different threats from domestic groups like the RAF and the Revolutionary Cells (RZ) in the 1970s and 1980s. While domestic terrorism, such as right wing hate crimes, continue to pose a problem in the Federal Republic of Germany, the country has also been struggling with international terrorism.
In addition to the involvement of German Al Qa’eda cells in the September 11 attacks, several other groups plotted or directly attempted to attack Germany in the years after the 11 September attacks in the USA. In July 2006, a small, radical Islamist group attempted to detonate an improvised explosive device (IED) on commuter trains. The IED failed to detonate and the German authorities were able to identify and arrest the perpetrators. Furthermore, in 2011 Arid Uka, a lone operator with suspected connections to international Salafist movements, attacked and killed two US soldiers with a handgun at Frankfurt Airport and wounded two others before being arrested at the airport. Another attempt to detonate an IED occurred in December 2012, when Marco G., a member of the German Salafist movement, placed a homemade pipe bomb at Bonn central station. Due to errors made during the construction of the device, the IED did not detonate and Marco G. was arrested, along with other members of the Salafist movement in Bonn.
While these (mostly unsuccessful) cases of Islamist terrorist attacks in Germany appeared to be inspired by several different groups including Al Qa’eda and the broad Salafist movement, the year 2016 may have constituted a change in this trend. During 2016, several plots and terrorist attacks in connection to ISIL occurred in Germany. On 26 February, a 15-year old sympathiser of ISIL, Safia S., attacked and wounded a police officer in Hannover with a knife. In July, two attacks occurred in Southern Germany. On 18 July, a young Afghan refugee with ties to ISIL attacked several people with an axe in a commuter train near Würzburg. Five persons were wounded and the perpetrator was shot by German police officers. Only six days after this attack, another lone operator detonated a wearable IED at the entrance of a local music festival in Ansbach. According to the perpetrator’s claim of responsibility, the attack that injured 15 persons and killed the attacker was inspired by ISIL as well.
The most severe terrorist attack in the year 2016 was the attack against the Christmas market at the Gedächtniskirche in Berlin on 19 December. During this attack, a Tunisian Salafist and ISIL affiliate, Anis Amri, killed 12 persons and wounded 56 by hijacking a truck and steering it into the Christmas market. Amri was shot by police officers in Milan, Italy, shortly after the attack, where he fled to by train via Chambery, France.
Based on the events in 2016, the most prevalent Islamist terrorist threat to German national security appears now to be attacks by lone operators inspired by, or affiliated with, ISIL. Groups of potential perpetrators include radicalized German nationals that either support ISIL from Germany, or those German nationals who left Germany to fight in the Syrian civil war and returned with the radical ideology of ISIL, as well as with varying degrees of professional training and combat experience. Furthermore, according to the yearly report of the German domestic Intelligence agency, Syrian and North African refugees in Germany have been repeatedly contacted by local Salafist and radical Islamist groups with the aim to find recruits for ISIL.
This trend appears to correspond with the results of a Norwegian study by Petter Nesser et al. which forecasts an increase of single actor attacks with connections to ISIL in Europe. It also stresses that these attacks do not replace, but merely complement, those attacks conducted by groups. The authors conclude that weapons such as knives or vehicles will be just as probable as other, more sophisticated weaponry such as firearms and IEDs. The targets of ISIL-affiliated attacks are expected to especially include “soft targets”, prominent figures, members of the security forces, and Western institutions with symbolic value. Overall, the report notes a continuity in attack styles of Al Qa’eda and ISIL in Europe. Recent ISIL-affiliated attacks executed by single actors have added a more simplistic approach to planning, choice of weaponry and attack methods, against European society.
3 Institutional Architecture
The institutional counter-terrorism architecture in Germany includes a large variety of agencies and actors. To improve the communication and cooperation between these actors, a Joint Counter-Terrorism Centre (Gemeinsames Terrorismusabwehrzentrum (GTAZ)) was established in 2004 that provides a mechanism for the cooperation of 40 different agencies involved in German national security with regard to international Islamist terrorism. The GTAZ is not an independent institution, rather it acts as a platform to facilitate direct communication between a range of actors in the German counter-terrorism apparatus. These actors include the following:
The Federal Police (Bundespolizei) with two counter-terrorism units; the Grenzschutzgruppe 9 der Bundespolizei (GSG9) and the BFE+.
The Federal Criminal Police Office (Bundeskriminalamt (BKA))
16 Criminal Police Offices of the Federal States (Landeskriminalämter (LKA))
Federal Domestic Intelligence Service (Bundesamt für Verfassungsschutz (BfV))
16 State Domestic Intelligence Services (Landesämter für Verfassungsschutz (LfV))
Federal Intelligence Service (Bundesnachrichtendienst (BND))
Military Counter-Intelligence Agency (Militärischer Abschirmdienst (MAD))
Central Office of the German Customs Investigation Service (Zollkriminalamt (ZKA))
Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge (BAMF))
Federal Public Prosecutor General (Generalbundesanwalt (GBA))
With the GTAZ as a central platform, these 40 institutions are able to communicate on an equal level without rigorous bureaucratic constraints and can share relevant information and Intelligence concerning Islamist terrorism in Germany. Together with this equitable communications framework, the GTAZ also provides two Intelligence analysis units as well as eight other working groups to the strategic communications process described above. The two analysis units of the GTAZ are the Intelligence Information and Analysis Unit (Nachrichtendienstliche Informations- und Analysestelle (NIAS)) and the Police Information and Analysis Unit (Nachrichtendienstliche Informations- und Analysestelle (PIAS)). The NIAS consists of representatives of the BfV, the LfVs, the MAD, and the BND, while the members of PIAS represent the BKA, the LKAs, the GBA and the Federal Police .
Independent of their membership in one of these analysis units, the members of the GTAZ are also part of eight working groups that are concerned with a range of support activities, including the following: daily briefings; threat assessment; operational information exchange; Islamist terrorism-related cases; individuals from the Islamist-terrorist spectrum; de-radicalization; transnational aspects; accompanying measures concerning the legal residence status of individuals. In addition, members of the NIAD form an Intelligence Board within the GTAZ. Finally, the BfV, the BKA, the BND, the MAD and the Federal Public Prosecutor General all work together in the Joint Internet Centre (Gemeinsames Internetzentrum (GIZ)) that is based outside of the GTAZ, but is also exclusively concerned with issues of Islamist extremism and thus cooperates closely with the GTAZ.
Although not part of the GTAZ, the German military, the Bundeswehr, is also a vital part of the German counter-terrorism architecture. Since the German Constitutions prohibits the Bundeswehr from being deployed within the borders of Germany (unless in a state of national emergency), its main contribution in CT is restricted to the support of NATO troops and other coalition forces in regions which are subjected to the activities of international terrorist networks such as Al Qa’eda and ISIL.
4 Legislation
The threat of terrorism itself, and German counter-terrorism legislation, can be traced back to the 1970s and the increase in RAF activities during the same decade. Despite the introduction of several news laws to deal with the threat, there is still no legal definition of terrorism available in German legislation. Rather than strictly defining terrorism, some legal frameworks implicitly refer to terrorism as defined by the European Council in 2002: “a conglomerate of offences that seriously harm the state or society and that have the intention to intimidate society or to disrupt and destroy civil order”. Despite the absence of a common definition in German law, a number of security agencies use internal definitions of terrorism.
One of the first German laws to explicitly mention terrorism was passed in 1976, with the so called “Act of 18 August 1976”. This Act added a law (i.e., §129a) to the German criminal code (StGB) that criminalises the formation or the support of a terrorist organization. In addition, the code of criminal procedure (StPO) and other laws also underwent changes due to the activities of left-wing groups and the RAF in the 1960s and 1970s. Here, especially, the Eavesdropping Act (Abhörgesetz or G-10) from 1968, the Blockage of Conduct Act (Kontaktsperre-Gesetz) of 1977, and the Raid Act (Razzia-Gesetz) of 1978 added more legislative tools to the CT arsenal of German law enforcement and Intelligence agencies, in their fight against domestic terrorist groups.
The ongoing activities of domestic terrorist groups in Germany during the 1980s caused additional regulatory changes with regards to terrorism. The Act for the Fight against Terrorism (Gesetz zur Bekämpfung des Terrorismus) was proposed in 1986 and passed in 1989 and included amongst others a controversial leniency policy as well a raise in the punishment of StGB §129a and the criminalization of the instruction for criminal offences as well as of the destruction of important working tools. In the 1990s, the activities of the third generation of the RAF, plus the increasing right-wing extremism, caused additional changes in the Police laws and the Code of Criminal Procedure. In particular, the grid search (Rasterfahndung) that already had been used by law enforcement agencies since the 1970s was introduced into German law.
Although not specifically modified with regard to terrorism offences, the German laws concerning detention deserve a short discussion as well. The German police is able to detain suspects without charges if they are suspected of having committed a crime or if they pose a threat to the public or themselves without having committed a crime yet. Without a warrant, this pre-charge detention is only valid for 48 hours, but can be extended to a maximum of 14 days as a result of a judicial decision. If the suspect is not found guilty of a crime after that period, they must be released from police custody. However, with regard to those radical political and religious activists that are willing to resort to violence in German politicians are pressing for further measure to control such individuals, even if they have not committed a criminal offence yet.
If the investigators acquired enough circumstantial evidence as well as an appropriate warrant, the suspect can be imprisoned on remand for up to 6 months until her trial. This duration can be extended with a judicial decision, only if the investigations that are necessary for the trail exceed regular workloads. In practice, especially terrorist suspects are kept in imprisonment on remand for more than 6 months, since the investigations and preparation procedures for their trails are more time consuming than for other crimes.
As in many other countries around the world, the attacks on 11 September, 2001 also had an enormous impact on German counter-terrorism legislation. Shortly after the attacks, German legislators started to craft two large national security reforms (Sicherheitspakete) that included several regulatory changes:
Security Package I (Sicherheitspaket I)
The first part of the German national security packages was published only eight days after the events in the United States of America. Amongst others, this package restricted the rights of religious and ideological clubs and associations in Germany and prohibited those club that were dedicated to topics that conflicted with the German constitution. In addition, the package criminalized membership in, and formation of, terrorist organizations outside of Germany by adding to the already existing terrorism laws in the German criminal code.
Security package II (Sicherheitspaket II)
The second national security package came into force at the beginning of the year 2002 and consisted of a general counter-terrorism law (Terrorismusbekämpfungsgesetz). This offered a large catalogue of regulatory changes in the law for the protection of the German constitution (Bundesverfassungsschutzgesetz), in the law for the Federal Intelligence Service (Bundesnachrichtendienstgesetz), in the law that governs the activities of the Military Counter Intelligence Agency (Gesetz über den militärischen Abschirmdienst), in the G-10 law, in the law that regulates the procedure of security clearances (Sicherheitsprüfungsgesetz), and in the law of the Federal Border Force (Bundesgrenzschutzgesetz). All these changes provided the German security apparatus with more competences and broadened the possibilities of Intelligence and law enforcement agencies to request and access information such as financial activities, telecommunication, and travel logs of suspects, via private companies or public institutions. Furthermore, the Terrorismusbekämpfungsgesetz introduced changes such as the collection of biometric data, and changes to the German laws that govern passports and national identity cards (Passgesetz und Personalausweisgesetz).The law concerning migration (Ausländergesetz) was also tightened.
Initially, the Terrorismusbekämpfungsgesetz was only valid for a period of 6 years, but it was extended in January 2007 with the Complementary Act to the Act for the Fight against Terrorism (Terrorismusbekämpfungsergänzungsgesetz (TBEG)). This complementary act updated the German Aviation Security Act (Luftsicherheitsgesetz) that was introduced in 2005 to account for scenarios similar to the attacks on 11 September. Specifically, this law allowed the use of force against hijacked passenger aircraft, even if that would mean taking the lives of the hostages in the aircraft. However, this section was invalidated by the German Federal Constitutional Court only two years later. The judges argued that the use of force against innocent hostages would conflict with the Constitution, since one would use innocent lives as a mean to the end of saving other lives. Furthermore, the Federal Constitutional Court raised the crucial question of who should be in charge to use appropriate force against a hijacked airplane, since the only entity with the technical means to do that, the Bundeswehr, is constitutionally forbidden to use military force within the borders of Germany. This dilemma comes back to the more general question if acts of terrorism should be considered a crime (as currently interpreted in German law) or if a terrorist attack should be considered a military aggression and, thereby, subject to laws in a state of defence.
In addition to several changes in the Aviation Security law, the TBEG further strengthened the competences of the German security apparatus and in particular, equipped the Intelligence services with more scope in the field of data. Two years after the introduction of the TBEG, German legislators added three additional articles with regard to terrorism to the German Criminal code. Specifically, these articles criminalize the preparation of a serious act of violent subversion (StGB 89a), the planning of preparatory measures to commit a serious act of violent subversion (StGB §89b), and they also further criminalize the distribution of instructions to execute such a serious act (StGB §91).
In 2015 another article followed that criminalized the financing of terrorist organizations (StGB §89c). The latest law that was introduced with regards to terror in Germany concerns the collection of internet meta data (Vorratsdatenspeicherung) and has its own, controversial history. After almost 10 years of legal conflicts on both national and EU levels, the German Government proposed a law for the medium-term storage of internet and mobile phone communication data in late 2015. This law that aims at fulfilling the EU Directive 2002/58/EC obligates internet providers amongst others to store the internet traffic and IP addresses of their users for at least 10 weeks.
Although never introduced into German counter-terrorism legislation, the concepts of enhanced interrogation and torture in relation to both terrorist and criminal suspects have been hotly debated. One of the most prominent examples in this debate is the case of Wolfgang Daschner. In 2002, the vice president of the Police forces in Frankfurt gave the order to threaten the detained abductor, Magnus Gäfgen, with torture, in an attempt to force him to disclose the location of an abducted child. The threat of torturing Gäfgen did persuade him to share the location of his victim, but the abductor also revealed that he had already killed his victim, before he was arrested. Although Daschner’s order was clearly illegal according to both the German Criminal Code and the Code of Criminal Procedure, the German public, along with some legal scholars, considered Daschner’s behaviour to be ethically justified. One of the major arguments for this was that Daschner only used this coercive tactic on Gäfgen in a final attempt to save a human life. The public therefore considered that Daschner had acted on behalf of the abduction victim.
This debate concerning torture in German society was revived four years later, when German Intelligence analysts travelled to Guantanamo Bay and Syria to interview two terrorist suspects. Both suspects were living in Germany before their detention, and they were allegedly tortured by American and Syrian prison authorities. After this visitation, human rights organizations argued that German security agencies should not be allowed to use intelligence that was gathered by the means of torturing detainees, since this use of Intelligence would certainly be illegal if the suspected terrorists had been tortured by German authorities. German authorities justified these visitations with the argument that the Intelligence derived from the visit could be vital to maintain national security.
5 Counter-Terrorism Strategy and Tactics
The German security institutions follow a terrorism strategy that can be summarized in the following five points:
Information collection to prevent terrorist activities
A core element of the German counter-terrorism strategy is the collection and distribution of relevant information among the security agencies involved in counter-terrorism activities. In this regard, the GTAZ is the key element to distribute information via the counter-terrorism database (Antiterrordatei) that was introduced together with the GTAZ in 2004. This database contains data sets and Intelligence on individuals and groups associated with violent extremism and Islamist terrorism. The Antiterrordatei is regulated by a specific law (Antiterrordateigesetz) and all activities in the database are subject to documentation and oversight by the Federal Commissioner for Data Protection (Bundesbeauftragter für den Datenschutz).
However, the GTAZ in general and the Antiterrordatei in particular have been criticised repeatedly, since both the centre and the database arguably weaken the historically grown, strict distinction between the work of German Intelligence services and German law enforcement (Trennungsgebot).With the weakening of the Trennungsgebot due to shared operation centres such as the GTAZ and collaborative databases, the German security architecture arguably faces a dilemma: One the one hand, German authorities have to be committed to a strict separation of Intelligence and law enforcement to avoid similar structures as those used by the Nazi regime. On the other hand, the complex challenges posed by international terrorism, appear to require the close cooperation of Intelligence and law enforcement.
One of the most prominent policing methods to identify and consequently arrest terrorist suspects in Germany is the grid search, that was initially used in the 1970s and was revived and re-introduced into German legislation after the attacks on 11 September, 2001. The grid search has been used to identify potential persons of interest by collecting mass data from public and private databases. These databases include resident registrations, Police datasets, and, in more advanced searches, also communications data and the customer databases of public and private companies. This potentially massive dataset is specified by the addition of multiple criteria to it (e.g. age, membership in political groups, rental situation, etc.). These criteria have to be defined by the investigators, to try to hone in on data sets, even if they are vague (e.g. an unknown left wing terrorist or an unspecified Salafist group). By applying more and more of these “grids” to the search, investigators hope to end up with a manageable amount of individuals, which can thus help to facilitate the potential identification of the subject(s). In the aftermath of the attacks on 11 September, the grid search was used in Germany on a large scale, to identify sleeper agents of Al Qa’eda.
Prevention and de-radicalization
In addition to the collection of information and the preventive policing methods such as the grid search, Germany’s counter-terrorism strategy also includes numerous programs to support de-radicalization efforts. One example is the counselling service offered by the BAMF (Beratungsstelle Radikalisierung) that provides support for coping with radicalized friends or family members. Specifically, the service of the BAMF offers counselling as well as providing solutions and counter-narratives for people in personal contact with radicalized adolescents. This is achieved by drawing on a network of eight cooperating de-radicalization centres across Germany. Other initiatives include the initiation of the German Islamic Conference (Deutsche Islamkonferenz) in 2006 that aimed at assisting with de-radicalization efforts. Besides topics such as Muslim faith in Germany and inter-religious dialogues, the fight against extremism and terrorism has been discussed in detail at these conferences by senior policy-makers and representatives of the German Muslim community.
Strengthening of physical security
A third core principle in the German fight against terrorism is the improvement of physical security nationally. This not only includes the strengthening of German police forces, but also includes the protection of critical national infrastructure (CNI) in Germany. Aviation security is one of the major security concerns and it was strengthened by the Aviation Security Act as part of the TBEG.
Response and crisis management
In the aftermath of the attacks on 11 September, 2001, Germany restructured and improved its national crisis management by publishing a new strategy for the civil protection (Neue Strategie zum Schutz der Bevölkerung in Deutschland). One of the outcomes of this new strategy is the foundation of the Federal Office of Civil Protection and Disaster Assistance (Bundesamt für Bevölkerungsschutz und Katastrophenhilfe (BBK)) in 2004. The BBK coordinates the emergency services and disaster planning on a federal level and provides strategies and analyses with regard to the aftermaths of natural disasters and large-scale terrorist attacks.
International cooperation
The final cornerstone in Germany’s counter-terrorism strategy is the engaging in international alliances and organizations. Germany follows a multi-faceted approach to international cooperation in fighting terrorism.
Germany is a full signatory to the Anti-Terrorism-Convention of the United Nations and actively works to enforce this convention. As a key nation within the European Union, Germany commits itself to the EU Counter-terrorism Strategy. In addition to these legal commitments, the Bundeswehr is active in several counter-terrorism aspects of the North Atlantic Treaty Organization (NATO) strategy and contributes to the international Anti-IS-Alliance with forces in Syria and Iraq. Within this alliance, the Bundeswehr carries out a variety of operational support roles, including the aerial refuelling of coalition aircraft, escorting naval task groups, and reconnaissance and training tasks. In addition, the Bundeswehr participates in various missions, all of which have at least some focus on counter-terrorism, in countries such as Mali, Somalia, and Afghanistan. Next to its activities in the alliance, the German government participates in the counter-terrorism strategy of the OSCE and is part of international organisations such as the G7 group, in the Council of Europe, in the Global Counter-Terrorism Forums (GCTF), and in the Financial Action Task Force (FATF).