21 June 2018, morning session

Counsel Sturm on the definition of terrorism: nonsensical from a legal perspective, perfidious from a political perspective

In today’s morning session, counsel Sturm held her closing statement on the criminal liability of Beate Zschäpe as a member of the terrorist organization NSU. Sturm claimed that the NSU cannot be considered a terrorist organization within the meaning of Sect. 129a of the German Criminal Code. She based this, on the one hand, on an argument based on European law, which is simply nonsense, and on a political argument, which in effect defines racist terror attacks as per se non-terrorist.

The NSU, Sturm claimed, cannot be considered a terrorist organization in the sense of Sect. 129a as its crimes did not serve a specific terrorist purpose – such as instilling fear and terror in the (entire) population. Now, according to its wording, Sect. 129a para. 1 clearly defines as terrorist any organization whose aims are directed at the commission of murder, without laying down any requirement of a specific intent beyond that fact. Sturm tried to argue that European framework decisions and directives, which had not been correctly incorporated into German law, required the court to interpret Sect. 129a in a way which adds the intent as an additional requirement.

Of course, already from the outset, it is hard to see make out why this argument was needed to help her client, in Sturm’s view: after all, according to her earlier arguments, Zschäpe had not been a member of the group at all. Accordingly, this part of Sturm’s pleading, again, was above all an opportunity for self-aggrandizement by Zschäpe’s counsel.

What’s more, Sturm’s argument based on European law is a total non-starter: The framework decisions and directives which she referred to require the EU Member States to ensure that certain acts, including criminal damage to important infrastructure, are criminalized as terrorist acts where they are committed in order to further certain terrorist aims. In other words, they lay down a minimum of which behavior states have to consider as terrorist. Nothing in them requires states to penalize only these acts, or to consider only these acts terrorist crimes. Accordingly, the reports of the European Commission criticizing Germany for failing to transpose the framework decisions and directives into German law, as cited by Sturm today, criticize the fact that, e.g., attacks on important infrastructure in furtherance of terrorist aims is still not penalized as “terrorist”, in other words, that German criminal law is not considered severe enough. Sturm, however, wants to draw the opposite conclusion, reading norms which require a more severe penal law as limiting a provision against its clear wording. Accordingly, Sturm’s claims are useless not only as a closing statement, but also as a seminar paper.

Sturm continued by claiming that the requirement of a terrorist aim was not fulfilled by the NSU as the NSU crimes had not lead to fear and terror in the population which could have damaged the state as such. They had not led to a state crisis, neither one caused by state overreaction as seen after the attacks of the Red Army Faction, nor one brought about by escalating resistance on the part of the victims. The part of the population affected by the population had instead remained quiet, shaken and bewildered by the investigative failures of state organs. Accordingly, it had not been the crimes committed by the NSU which endangered the peaceful co-existence within German society, but rather the inability of state organs to identify the perpetrators.

This argument is perfidious in two ways: for one, it once more excludes victims of racist crimes, i.e. members of minorities, from the category of persons protected by the norm, and in addition, it cynically uses their helplessness in the face of institutional racism as the basis for declaring the NSU as non-terrorist.

What’s important is that Sturm based herself not on a general argument against Sect. 129a as such, an argument often pursued by liberal and progressive defense lawyers.  To the contrary, she described the acts of the Red Army Faction and the subsequent “state crisis” as an archetypical case of crimes punishable under Sect. 129a.  Her claim that the norm is inapplicable here is based only on the argument that European law requires that an act be “intended to seriously intimidate the (entire) population” and on the fact that institutional racism concealed the motives of the perpetrators from the public.

Thus Sturm’s arguments only make sense if the defense is actually serious in holding that, with respect to terrorism, basic rights and the right to a peaceful co-existence apply only to the German majority population and not to migrant minorities. Such an argument results in a trivialization of pogroms since these are by definition directed against minorities, while often being ignored or even approved of by the majority. According to Sturm, terrorists can only be those directly attacking the German majority, while Nazi terror of the sort that has gained a lot of traction in the last few years can, by definition, not be considered terrorist. What makes this argument particularly galling is that Sturm pretends to have arrived at this argument simply by way of a legal interpretation of Sect. 129a, when in fact she bases herself on a ludicrous misreading of that norm, as shown above.

The last time a similarly perfidious argument had been brought by defense counsel was in the case against the “Freital group” of Nazi terrorists. There, the Higher Regional Court in Dresden had clearly rejected such arguments and had stated – quite rightly and entirely based on the applicable law – that such attacks on minorities always contain an attack on the peaceful co-existence and therefore on the population in its entirety. Sturm’s ludicrous arguments will similarly remain unsuccessful.

In the afternoon session, Sturm will concern herself with the question of preventive detention. It follows already from her presentation of Zschäpe as the unsuspecting flat mate who was above all fond of children that, according to Sturm, the prerequisites for preventive detention are not fulfilled.  We will therefore not deal with these arguments and instead only give a short update on what’s nex in the trial.