Counter-terrorist, terrorist – what's the difference?

YPG returnees under suspicion

The Kurdish YPG militia did the heavy lifting in the fight against the "Islamic State", yet many foreign YPG adherents, including Germans, have come home to find themselves under suspicion of terrorism. By Esther Felden & Matthias von Hein

On Friday, 4 October, around nine in the morning, the doorbell rang. In front of it stood half a dozen police officers with a search warrant issued by the Federal Court of Justice in Karlsruhe, Germany's highest court when it comes to criminal and civil law.

After that, Jan-Lukas Kuhley lost track of time. He can't recall how long the investigators rummaged through everything in his shared student apartment – but it felt like an eternity.

At the same time, Kuhley's parents received a visit from the police. Another residential community that he had recently moved out of was also searched. The reason for the large-scale action: suspected violation of paragraph 129b of German federal law, which pertains to membership in a foreign terrorist organisation.

The slim student had joined the YPG Kurdish self-defence units in Syria in 2017 as a volunteer. He was actively involved in the fight against Islamic State for several months – in a unit that operated with guns and armoured vehicles. Sometimes the situation was life-threatening, he admitted.

German YPG fighter Jan-Lukas Kuhley (photo: DW/M. von Hein)
Refutes any investigation: "The YPG bore the brunt of the fight against IS," Kuhley points out. It received support from the international coalition against IS, "in which the Bundeswehr is also active. We also carried out counter-terrorism in Germany's interest"

'In Germany's interest'

When the officers left Kuhley's apartment, they had seized several mobile phones, his laptop and various media. Over a cup of tea in his kitchen, the political science student confessed that he was not completely surprised by the apartment search; he knew of other YPG returnees who had experienced similar. But he couldn't understand such an investigation on the grounds of suspected terrorism.

"The YPG bore the brunt of the fight against IS," Kuhley emphasised. It received support from the international coalition against IS, "in which the Bundeswehr (Germany's armed forces) is also active. We also carried out counterterrorism in Germany's interest."

For the German authorities, however, Kuhley's motivation is irrelevant. What counts for them is that he received military training from a foreign militia and gained combat experience. According to its own statement, the federal government does not distinguish "between supposedly good and bad terrorists." 

At least that is how the government answered an official request for information by parliamentary representatives of the Left party in 2015. Left Party parliamentarian Ulla Jelpke has described the "surveillance and spying on returnees and their families" as akin to collective punishment.In practice, there is indeed a distinction between returning IS adherents and YPG returnees: according to the security authorities, 122 people had returned to Germany from the terrorist caliphate as of mid-October 2019; the Federal Prosecutor's Office has filed charges against 23 of them for membership in a foreign terrorist organisation.

The authorities estimate the number of YPG returnees to be well over 100. However, while around 30 investigations have been initiated, not one YPG supporter has been charged to date. The Federal Ministry of Justice confirmed in writing: "According to the current practice of the Federal Prosecutor's Office, the investigation proceedings are generally terminated." The prosecutor can refrain from prosecuting alleged crimes if they were committed abroad. The fact that it investigated German YPG fighters without charge appears to have political reasons.

Key allies against IS

The YPG's central role in the military victory over IS is key in the decision not to prosecute, maintain legal experts with knowledge of the situation. Indeed, the YPG itself has acknowledged it has paid a high price, suffering more than 10,000 casualties. Its fighters are still the backbone of the Syrian Democratic Forces (SDF), founded in 2015 and trained and armed with the help of the United States. On Syrian soil, they have been America's most important partner in the fight against IS.

Symbolic image of Kurdish militiamen (photo: picture-alliance/dpa/S. Suna)
When does the YPG become the PKK? The ideologically socialist PKK has been banned in Germany since 1993 and on the EU terror list since 2002. It is also banned in the United States. The YPG, by contrast, is illegal in Germany nor in any other European country. Nor does the United Nations classify the militia as a terrorist group

The view of NATO partner Turkey, however, is quite different. The YPG is the Syrian offshoot of the Kurdistan Workers' Party (PKK), which the Turkish government has banned and long called a terrorist entity.

For decades, the PKK has fought in Turkey for an independent Kurdish state, sometimes engaging in terrorist practices. Tens of thousands of people on both sides have died in this still-unresolved conflict. The ideologically socialist PKK has been banned in Germany since 1993 and has been on the EU terror list since 2002. It is also banned in the United States.

The YPG, in contrast, is completely different: it is not illegal in Germany nor in any other European country. The United Nations does not classify the militia as a terrorist group, either.

However, a dilemma arises for the German judiciary: ideologically, the YPG defers to the imprisoned PKK founder Abdullah Ocalan. In the cemeteries of its fallen fighters, his portrait flutters on flags in the wind. In the Rojava area in northern Syria, the YPG is trying to implement Ocalan's vision of a state. This model of a society organised from below makes the northern Syrian Kurdish region an attractive place for left-wing idealists from all over the world — including Jan-Lukas Kuhley.

In Germany, the responsible federal prosecutor's office in Karlsruhe has so far mainly investigated returned YPG fighters if they have publicly and emphatically confirmed their membership in the militia. That was also the case with Kuhley: the search warrant approved by the Federal Court of Justice expressly referred to an article published by the Deutsche Welle about Kuhley's time with the YPG.

Obliged to investigate

Under German law, authorities are required to initiate an investigation if they learn of a possible crime – something experts refer to as the "principle of legality". In the case of the YPG, the public prosecutor's office considers membership in the militia to be indirect membership of the banned PKK.

The chairwoman of the interior affairs committee of the German Bundestag, Andrea Lindholz, emphasised that "a state firmly based on the rule of law is characterised by the fact that it considers each individual case separately and does not make blanket decisions."

Lindholz, a member of Chancellor Angela Merkel's conservative CDU/CSU bloc, says that the YPG is not classified as a terrorist organisation. She describes the PKK, however, as "the most powerful foreign extremist organisation in Germany." The federal government itself "does not expect armed attacks by PKK fighters in Germany or against German targets." 

Kurdish militias carry a flag of PKK founder Abdullah Ocalan (photo: picture-alliance/NurPhoto/D. Cupolo)
In a tough spot: Germany's relations with Turkey are very close, as it is not only a NATO ally, but also a major economic partner. Moreover, without the refugee pact with Turkey, the number of refugees arriving in Germany would probably not have decreased. "The German government is trying to find a balance between the YPG on the one hand and Turkey's wishes on the other. That cannot succeed," observes Green MP Omid Nouripour

That, too, features in the government's response to a request from several left-wing members of the Bundestag in 2015.

The Interior Ministry and the Federal Criminal Police Office also confirmed that none of the YPG returnees is currently classified as a threat. In stark contrast, almost half of IS returnees – 53 of the 122 known cases – are officially considered as Gefaehrder, a criminal designation for suspects considered threats to public safety. The German government provided the information in mid-November in response to an official parliamentary inquiry from the Left Party in the Bundestag.

A delicate balancing act

Omid Nouripour, the foreign policy spokesman for the Green party parliamentary group, warns against glorifying the Kurdish self-defence units. He points to allegations by human rights organisations that the YPG is also recruiting child soldiers. Regardless, Nouripour also emphasises that the Kurds "did the dirty work for the West against IS." Therefore, the German government must decide "whether these people have fought for us or against us."

However, foreign policy considerations also play a major role in the decision. At the beginning of December, during the NATO anniversary summit in London, Turkish President Recep Tayyip Erdogan once again asked his partners to classify the YPG as a terrorist organisation.

Germany is in a tough spot: relations with Turkey are very close, as it is not only a NATO ally, but also a major economic partner. Moreover, without the refugee pact with Turkey, the number of refugees arriving in Germany would probably not have decreased. Lastly, around 3 million people with Turkish roots live in Germany.

For the Green MP Nouripour, it is clear: "The German government is trying to find a balance between the YPG on the one hand and Turkey's wishes on the other. That cannot succeed."

The consequences of this legal and political dilemma will continue to be felt by people like Jan-Lukas Kuhley – even if the investigation against him is likely to be end in exactly the same way as those against the other YPG returnees.

Esther Felden & Matthias von Hein

© Deutsche Welle 2020

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