Prosecutor v. Harun P
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On 15 July 2015, German foreign fighter Harun P was convicted of membership in a foreign terrorist organisation and attempted murder in relation to his time in Syria in 2013 and 2014. Harun P had travelled to Syria in 2013 and joined the terrorist group Junud al-Sham. Subsequently, he confessed to participating in a large scale attack on a prison in Aleppo and to firing a mortar blindly into a populated industrial area in Syria. Since his return, he has distanced himself from his former views and cooperated significantly with the police. Harun P was ultimately sentenced to 11 years’ imprisonment.
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Harun P was arrested on 1 April 2014 in Prague, Czech Republic, and, after consenting to the transfer, was extradited to Germany on 17 April 2014 (para. 2).
The trial began in January 2015 (para. 3).
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Legally relevant facts
In 2012, Harun P became more engaged with Islam, including via attending a mosque, listening to fundamentalist Salafist sermons online and becoming involved with the group Millatu Ibrahim (paras. 42-49). This included pledging allegiance until death to a member of this group, A.I. (paras. 49-50). By the summer of 2013, Harun P had decided he wanted to leave Germany for Syria to join an Islamist terror group, and he ultimately purchased a one-way ticket to travel to Syria via Turkey in September 2013 (paras. 52-54).
After arriving in Syria, he joined the group Junud al-Sham (paras. 55 and 88-95), eventually moving into their ‘German House’ (para. 99), and he voluntarily participated in a training camp, where he was provided with his own Kalashnikov (paras. 98-100). After briefly travelling to Turkey, he returned to Syria and Junud al-Sham around December 2013 and continued his military training (paras. 105-106).
Harun P was involved in an attack on a prison in Aleppo on 6 and 7 February 2014 (paras. 113-115). The attack was carried out by several jihadi groups, including Junud al-Sham and the al-Nusra Front, and was intended to harm the Assad regime, specifically desiring to kill approximately 500 soldiers and guards, and expecting to kill at least 400 guards and prisoners (paras. 114-116). It is not known how many people were killed in the attack, which included the detonation of a truck full of explosives (paras. 115-116 and 118). In carrying out the attack, around 2,500 prisoners were knowingly put at risk by the jihadi groups (para. 116). Harun P had agreed to participate in the attack on behalf of Junud al-Sham and was broadly aware of the plan (paras. 119-122). During the attack, he guarded a building to facilitate the retreat of the fighters (para. 119-121).
In February or early March, Harun P was in an industrial area known as Sheikh Najjar which was a base for both Junud al-Sham and the al-Nusra Front (paras. 125-126). In late February or early March 2014, he found a mortar and, as he was bored, asked another fighter from the al-Nusra Front if he could fire a shot (para. 128). He then fired the mortar without ascertaining exactly where it was aimed and he did not see where it landed (paras. 128-131). He was aware that the cannon could hit Assad government troops and civilians in the surrounding area (para. 131). He also filmed and took photos of his firing of the mortar (para. 128).
In early March 2014, Harun P departed from Syria again for Turkey as he was not participating in direct combat to the extent he wanted to, leaving Junud al-Sham and the jihad (para. 133). On 1 April 2014, he left Istanbul for the Czech Republic where he was arrested (para. 133).
After being arrested, Harun P cooperated with investigators and assisted as a witness in other investigations (paras. 138-143). He has also departed from his prior views concerning jihad (paras. 144-145).
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Core legal questions
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- Was Harun P a member of a foreign terrorist organisation pursuant to sections 129a and 129b of the German Criminal Code?
- Given the circumstances relating to the attack in Aleppo and the firing of the mortar, is Harun P guilty of attempted murder?
- Are there any defences available for Harun P?
- Taking into consideration the gravity of the crimes, the aggravating and mitigating circumstances, what is the appropriate sentence for Harun P?
Specific legal rules and provisions
Sections 22, 23, 27, 52, 53, 89a, 129a, 129b, 211 and 212 of the German Criminal Code
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Court's holding and analysis
Membership in a foreign terrorist organisation
The Court examined Harun P’s conduct between October and November 2013 to determine if he qualified as a member of a foreign terrorist organisation (paras. 404-423). It held that Junud al-Sham is a foreign terrorist organisation in accordance with sections 129a and 129b of the German Criminal Code as the group’s activities are directed at the murder or manslaughter of supporters of the Assad regime in Syria (paras. 405-406). The Court found that Harun P had first been a supporter of Junud al-Sham and later became a member when he moved into the ‘German House’ (para. 406). Additionally, it found that Syrian law had similar provisions to that of the German Criminal Code (para. 408).
The conduct of Harun P was found to also fall within the scope of section 89a on preparatory terrorist acts, and the Court discussed the relationship between sections 89a, 129a and 129b (paras. 409-423). Ultimately, it determined that section 89a is subsidiary to sections 129a and 129b through the operation of section 52 (see discussion in paras. 415-423).
Accessory to Attempted Murder – the Attack on the Prison in Aleppo
The Court next looked at the legal characterisation of Harun P’s actions after he returned to Syria from Turkey and participated in the joint al-Nusra Front and Junud al-Sham attack on the prison in Aleppo (paras. 424-440). It first held that German law, notably sections 211, 212, 22, 23, 25, 27 and 52 of the Criminal Code, was applicable to Harun P as he is a German national and the Court noted that there are similar provisions within Syrian law (paras. 424-426).
The Court found that the attempted murders had been undertaken by the attacking forces of the two jihadi groups, but was unable to determine exactly how many people died in the attack (para. 427). It did, however, find that the attack was intended to harm supporters of the Assad regime and risked the lives of all the prisoners within the prison (paras. 433-434). Ultimately, the Court found that the al-Nusra Front and Junud al-Sham had attempted to murder at least 400 people (paras. 114-116 and 438), with the overall aim of overthrowing the Assad regime and establishing an Islamic State governed by Sharia (para. 435).
In assessing Harun P’s personal involvement, the Court found that he was nearby to the fighting, wanted to participate in the attack, and had been taught to use weapons (paras. 428-430). However, the Court held that he was of lesser importance to the overall plan, did not directly participate in the fighting, had no decision-making authority, and was likely a reserve (para. 431). It concluded that he was guilty of membership in the terrorist organisation, Junud al-Sham, between December 2013 and February 2014. In connection with the membership, Harun P was found guilty of accessory to the attempted murder of 400 people due to his role in the attack in Aleppo (paras. Tenor, 424 and 440).
Accessory to Attempted Murder – the Mortar
Regarding the firing of a mortar by Harun P in Syria (paras. 441-448), the Court reaffirmed the applicability of German law (para. 441), and found that Harun P had intentionally endangered civilians and others living within the area when he fired the mortar and that he had been motivated to fire it by his desire to kill members of the Assad regime (paras. 442-445).
Despite the involvement of fighters from the al-Nusra Front, the Court held that his actions in firing the mortar were connected to his membership in Junud al-Sham as his intentions were aligned with the goals of the group, namely fighting against the Assad regime (paras. 446-447). It also dismissed arguments under section 24 that Harun P had not wished to complete the criminal act (para. 448). Accordingly, Harun P was found guilty of membership in a foreign terrorist organisation and, in connection with this membership, of attempted murder of unknown persons (paras. Tenor and 440).
At the end of its findings, the Court dismissed several arguments aimed at providing justification for Harun P’s actions (paras. 449-461). It held that: Harun P was not entitled to combatant status under Additional Protocol 1 (para. 449); he did not meet the criteria for a defence of necessity or a right of resistance (paras. 450-453 and 458); he could not rely on self-defence (paras. 453-457); and Syrian law likewise did not provide a justification for the crimes he committed (para. 459).
Harun P was convicted of three counts of membership in a foreign terrorist organisation, with two counts combined: first, accessory to attempted murder in at least 400 cases; and attempted murder in an indefinite number of cases (para. Tenor).
The Court first considered Harun P’s mental state and determined it did not constitute a mitigating factor under sections 20, 21 and 49 of the German Criminal Code (paras. 464-481). However, factors such as his challenging family situation, his mental issues, his cooperation with investigators and his remorse were considered to be relevant (para. 482).
In relation to the first count of membership in a foreign terrorist organisation, the Court sentenced Harun P to 3 years’ imprisonment (para. 489). For the second count of membership combined with being an accessory to attempted murder in 400 cases, Harun P was sentenced to 9 years’ imprisonment (para. 496). For the third count of membership combined with attempted murder, Harun P was sentenced to 6 years’ imprisonment (para. 501). In determining the final sentence and considering all the circumstances, including Harun P’s assistance to law enforcement, he received an overall penalty of 11 years’ imprisonment (para. 503).
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K. Schuster, ‘German prosecutors press charges against returning jihadists’, DW, 25 February 2016.
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German Criminal Code
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (Additional Protocol I) (1125 UNTS 3)
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- A. Hudson and A. Heavens, ‘German man charged with murder, membership of Syrian “terror group”’, Reuters, 30 October 2014.
- A. Titz, ‘Strafverfahren gegen Harun P. wegen gemeinschaftlichen Mordes u.a.’, Oberlandesgericht München, 30 October 2014.
- A. Schäffer, ‘Die Wut des Harun P.’, Frankfurter Allgemeine, 20 January 2015.
- A. Uyanik, ‘Man goes on trial in Germany for helping attack on Syrian jail’, Reuters, 20 January 2015.
- A. Thieme, ‘Lange Haft für Münchner Terrorangeklagten’, TZ, 19 June 2015.
- H. Pfeifer, ‘Germany jihadi gets 11-year prison sentence’, DW, 15 July 2016.
- Spiegel Online, ‘Syrien-Rückkehrer zu elf Jahren Haft verurteilt’, Spiegel Online, 15 July 2016.
- K. Litschko, ‘Der reuige Gotteskrieger’, Taz.de, 16 July 2015.
- J. Diehl, J. Jüttner, F. Schmid & W. Wiedmann-Schmidt, ‘Former Islamic State Members Open Up to Investigators’, Spiegel Online, 8 August 2016.