Prosecutor v. Abdelkarim El. B.

Court	Higher Regional Court, Frankfurt am Main, Germany
Case number	5-3 StE 4/16 – 4 – 3/16
Decision title	Urteil (Judgment)
Decision date	8 November 2016
Parties	Prosecutor Abdelkarim El B.
Categories	Terrorism, War crimes
Keywords	cruel, inhuman and degrading treatment or punishment, Islamic State, Membership, Terrorist group, Terrorist Offence, terrorist organisation
Links	http://www.lareda.hessenrecht.hessen.de/lexsoft/default/hessenrecht_lareda.html#docid:7812208
Other countries involved	Syria Turkey

Summary

On 8 November 2016, German foreign fighter Abdelkarim El B. was convicted of membership in a terrorist organisation abroad, illegally possessing a Kalashnikov, and committing a war crime by treating a protected person in a gravely humiliating or degrading manner. He had travelled to Syria in September 2013 in order to fight for ISIL. On 7 November 2013, El. B. and his fellow ISIL fighters found the corpse of a Syrian army soldier. While the defendant was filming and verbally encouraging them, the other fighters cut the nose and ears of the dead body, stepped on it and then shot it in the face. On 10 February 2014, he was arrested at the German Embassy in Ankara, Turkey, and extradited to Germany on 25 February 2015. Abdelkarim El B. was sentenced to 8 years and 6 months of imprisonment.

Procedural history

On 10 February 2014, German citizen Abdelkarim El B. was arrested at the German Embassy in Ankara, Turkey, on suspicion of membership of a foreign terrorist organisation and possession of hazardous substances. On 25 February 2015 the defendant was extradited to Germany.

He was investigated on the basis of an arrest warrant issued by the District Court of Frankfurt am Main on 24 February 2015, until 28 July 2016 when the Federal Court of Justice repealed it. The defendant was subsequently examined under another arrest warrant issued by the German Senate on 16 June 2016 (para. I.A.3).

Legally relevant facts

On 20 September 2013, Abdelkarim El B. joined the Islamic State in Iraq and the Levant (ISIL) to fight in Syria. The defendant carried a Kalashnikov AK 47 during his time with ISIL, between 20 September 2013 and 8 February 2014 (Vorbemerkung).

On 10 October 2013 as well as 6, 7 and 8 November 2013, he fought with ISIL against the Syrian army in East Aleppo (Vorbemerkung). On 7 November 2013 the defendant and other ISIL fighters took hold of a military position previously occupied by the Syrian army, in which they found the corpse of a member of the Syrian armed forces. The fighters cut off the body’s ears and nose, shot it in the face, while mocking and cursing the victim.

The defendant made a video recording on his mobile phone, verbally encouraged the other fighters to commit the acts (Vorbemerkung; para. I.B.4) and stepped on the body himself (para. II.C.4.d.cc). The Turkish authorities found this video footage on 9 February 2014 (para. II.C.4.g).

Core legal questions

Did the accused commit a war crime by treating a protected person under international humanitarian law in a gravely humiliating or degrading manner, within the meaning of Section 8(1) No 9 of the International German Criminal Code and jointly breached Section 22a(1) No 6 of the Military Weapons Control Act?
Did he breach the Criminal Code in the event of his membership in a terrorist organisation abroad as provided by Section 129a (1) and (2)?

Specific legal rules and provisions

StGB (German Criminal Code) Sections 25(2), 52, 53, 74, 129a(1) No 1, (2) No 2, 129b(1)

KrWaffKontrG (German Military Weapons Control Act) Section 22a(1) No 6

VStGB (International German Criminal Code) Section 8(1) No 9

Court's holding and analysis

According to Section 7(2) No 1 of the StGB, the Court has jurisdiction as, on the one hand, the accused is a German citizen, and on the other hand, there was no functional judicial system and thus no enforceable criminal jurisdiction, at the time in the area (para. III.A).

Further analysis

The Court convicted the accused for committing the war crime of treating a protected person in a gravely humiliating or degrading manner and jointly for breaching the Military Weapons Control Act:

The Court cited a previous decision to justify that the deceased was a protected person under IHL (para. III.B).
It found that the accused did not directly commit the degrading acts of cutting the nose and ears or shooting the head of the dead body (para. III.B) which desecrated the body. The accused was nevertheless convicted under section 25(2) of the StGB as he belonged to the group who executed those acts and participated in the taking of the common decision (para. III.B).
He was illegally in possession of a Kalashnikov from 7 November 2013 to 8 February 2014 (para. IV.B).
The defendant was sentenced to 6 years, as the Court found that his consistent participation in ISIL and transfer of the video to his brother, deepened the lack of dignity towards the protected person (para. IV.B).

Abdelkarim El. B. was convicted of membership of a terrorist organisation abroad, since he was a low level fighter within ISIL from 20 September 2013 to 6 November 2013. He was sentenced to six years for membership in a terrorist organisation as he voluntarily joined ISIL, and consequently, the sentence could not be mitigated (para. IV.A.1). He was also sentenced to six years for committing a war crime, in conjunction with illegally possessing a weapon.

The Court aggregated the accused’s penalty according to section 54 (1) of the StGB to 8 years and 6 months.