Concept and Definition of Terrorist Organizations
By terrorist organizations one understands associations of several individuals who join together for a permanent or at least a certain period of time to commit terrorist offenses. The term is precisely defined both in national German law and in the international context, and can be found in numerous laws and international treaties. The legal classification is of particular importance for prosecution and prevention.
Legal Basis in German Criminal Law
Section 129a StGB – Formation of Terrorist Organizations
The basic regulation regarding terrorist organizations is found in section 129a of the Criminal Code (StGB). This section criminalizes the formation, recruitment of members, and support of terrorist organizations. The mere establishment or membership in such organizations is punishable, even if no specific offense is committed. The central provision reads:
(1) Whoever forms an organization whose purposes or activities are aimed at committing murder, manslaughter, or other serious crimes, shall be punished with imprisonment of not less than one year.
›› Complete statute: Section 129a StGB
Extension by Section 129b StGB – Criminal and Terrorist Organizations Abroad
Section 129b StGB extends the scope to terrorist organizations abroad. Punishability here covers not only actions with a domestic connection, but also support for or membership in foreign groups classified as terrorist by German authorities.
Distinction from Criminal Organizations
Whereas section 129 StGB concerns the formation of criminal organizations that do not necessarily pursue terrorist purposes, section 129a StGB explicitly requires a terrorist purpose. A distinguishing feature is the commission of serious crimes capable of significantly affecting the security of a state.
Characteristics of a Terrorist Organization
A terrorist organization has certain characteristics that clearly set it apart from other groups or organizations:
- Structure and Organization
It consists of a number of individuals who have permanently joined together in a fixed organization. A rigid hierarchy is not strictly necessary, but an enduring common objective is required.
- Terrorist Objective
The group’s intent must be directed toward committing serious crimes within the meaning of section 129a para. 1 StGB (e.g., murder, manslaughter, attacks on life and health, arson, explosive offenses). The aim is usually to attack fundamental legal interests such as life, bodily integrity, or public safety.
- Durability of the Association
The organization must be intended to last for a certain duration. Short-term agreements for a single crime do not fall under the concept of an organization.
- Intention to Intimidate the Population or Coerce Political Action
The acts must seek to substantially affect the population or coerce political decisions or compel international organizations.
Criminal Liability and Legal Consequences
Punishable Acts Relating to Terrorist Organizations
Criminal law provides for different penalties for various acts connected with terrorist organizations:
- Formation, Leadership, Membership:
Participation in the organization is punishable regardless of actually committing an offense.
- Support:
Anyone who supports a terrorist organization, even if they are not a member, is also liable to prosecution.
- Promotion:
Promoting membership or support is also punishable.
Penalties
Depending on the contribution to the offense and the seriousness of the planned acts, the range of penalties varies from not less than one year in prison up to ten years or more. Mitigation and exemption from punishment are possible under certain conditions, in particular, if a threat can be averted by the person’s actions (e.g., voluntary withdrawal).
Pre-trial Detention and Procedural Particularities
Due to the particular danger posed by terrorist organizations, stricter procedural rules often apply, such as for ordering pre-trial detention or witness protection. The investigative powers of public authorities are significantly expanded if there is suspicion of the formation or support of a terrorist organization.
International Classification and Cooperation
The fight against terrorist organizations is also regulated at the international level by numerous agreements and standards. International bodies such as the United Nations, the European Union and the Council of Europe have created corresponding definitions and catalogs of measures. Germany is obliged to transpose these regulations into national law and to cooperate with other countries in the investigation and prosecution of terrorism.
Distinction from Other Types of Organizations
Terrorist organizations differ from other, especially political or religious, groups by their willingness and plans to use extreme violence to achieve their goals. Mere radicalization or an affinity for violence is not sufficient. The step to an organized, enduring association with a collective terrorist purpose is decisive for the classification as a terrorist organization.
Legal Protection and Review
The classification and prosecution of terrorist organizations are subject to judicial review. Suspects have the right to a fair trial and are protected from arbitrary measures. The assignment of a group as a terrorist organization is often made by investigative authorities on the basis of extensive evidence and can be reviewed by a court.
Literature and Further Information
- Criminal Code (StGB), sections 129, 129a, 129b
- Law on International Legal Assistance in Criminal Matters (IRG)
- United Nations: International Conventions on Combating Terrorism
- Federal Agency for Civic Education: Terrorism – Definition and History
- European Union: Measures to Combat Terrorism
This encyclopedia article provides a comprehensive overview of the concept and legal foundations of terrorist organizations. Additional information is provided by the legal regulations and international legal sources mentioned.
Frequently Asked Questions
When does a terrorist organization exist under German criminal law?
Under German criminal law, a terrorist organization as defined in section 129a of the Criminal Code (StGB) exists when more than two individuals have joined forces with the aim of committing one of the serious crimes exhaustively listed in section 129a para. 1. These include, among others, murder, manslaughter, genocide, crimes against humanity, as well as offenses against personal liberty (e.g., kidnapping) and certain crimes endangering the public, such as arson or causing an explosion. An abstract threat to public safety due to the organizational structure is sufficient; actual commission of an offense is not required. The decisive factor is the group’s purpose to commit the specified crimes and a lasting organizational structure that goes beyond loose associations without a firm collective will.
What penalties can members of a terrorist organization expect?
Membership in a terrorist organization is punishable under section 129a para. 1 StGB by imprisonment from six months up to ten years. Furthermore, for leaders or masterminds (leaders, organizers), the law provides for imprisonment of not less than one year, and in particularly serious cases up to 15 years. Even support (section 129a para. 5 StGB)—especially through providing money, materials, information, or accommodation—is punishable. The specific sentence depends on the individual guilt of the perpetrator, their particular involvement, the circumstances of the individual case, and the actual or intended extent of damage. Attempting to form a terrorist organization is also punishable; however, withdrawing from the crime can eliminate criminal liability.
What special investigative powers are available to law enforcement authorities?
If there is a suspicion of a terrorist organization, law enforcement agencies have extended investigative powers according to the Code of Criminal Procedure (StPO). These include, among other things, the interception and recording of telecommunications (sections 100a, 100b StPO), covert surveillance of residences (section 100c StPO), undercover investigators, the use of informants, and the monitoring of postal communications. In addition, pre-trial detention is made easier if there is suspicion of membership in a terrorist organization. These powers serve the effective combat of the most serious crimes and allow for more drastic encroachments on the fundamental rights of those affected than for ‘ordinary’ crimes.
How does a terrorist organization differ from a criminal organization?
The essential difference between a terrorist organization (section 129a StGB) and a criminal organization (section 129 StGB) lies in the purpose of the association. While criminal organizations are usually formed to commit any kind of crime (for example, burglary, human trafficking, or drug trafficking), a terrorist organization must be directed towards committing offenses that, by their nature and seriousness, are capable of seriously endangering the state, public security, or the international legal order. The list of offenses for terrorist organizations is narrower and primarily includes offenses with significant potential to endanger life, limb, and the fundamental structure of the state.
Are there special protective provisions for witnesses and victims in connection with terrorist organizations?
Due to the particular danger in the field of terrorist organizations, special protective mechanisms for witnesses and victims apply. These include witness protection programs, anonymization of personal data in proceedings, covert hearings, and, under certain circumstances, the possibility of testifying via video link. In addition, law enforcement authorities are obligated to ensure the safety of individuals willing to testify against terrorist organizations by appropriate measures. Victims of terrorist offenses are also entitled to specific compensation claims and further assistance, for example under the Victim Compensation Act.
Is supporting or promoting a terrorist organization punishable?
In addition to membership and support, also promoting a terrorist organization is punishable under section 129a para. 5 StGB. Promotion particularly includes publicly encouraging, endorsing, or trivializing the organization, such as through propaganda or targeted recruitment of new members. This act is punishable regardless of whether it actually recruits new supporters; the abstract potential for danger suffices. The penalty is up to five years’ imprisonment or a fine. Recruiting members or supporters is also punishable under section 129b StGB (for terrorist organizations abroad).
What international aspects or special features apply to terrorist organizations?
Cross-border terrorist organizations are also covered by German criminal law: Under section 129b StGB, participation in a terrorist organization with a foreign connection—if a domestic link exists or the Federal Ministry of Justice orders prosecution—is prosecuted similarly to a domestic organization. This provision serves to implement international agreements and EU directives to combat terrorism and allows for the prosecution of offenses prepared, supported, or committed from within Germany. Prosecution may occur in close cooperation with foreign authorities and international organizations, such as Europol or Interpol.
Is the prosecution of terrorist organizations assisted by the Office for the Protection of the Constitution?
Yes, the Office for the Protection of the Constitution plays a central role in hazard prevention and intelligence gathering. The Federal Office for the Protection of the Constitution and the corresponding state offices observe extremist and terrorist structures and, due to their intelligence powers, provide important information to the police and law enforcement authorities. The findings of the Office for the Protection of the Constitution can be used to initiate and support criminal investigations, while maintaining a separation between preventive measures (protection of the constitution) and repressive measures (prosecution by the public prosecutor’s office and the police). This cooperation is governed by law, in particular by the Federal Act on the Protection of the Constitution (BVerfSchG).
