Homeland Security Watch

News and analysis of critical issues in homeland security

December 17, 2010

Germans target advocacy of sharia as unconstitutional

Filed under: International HLS,Legal Issues,Radicalization,Terrorist Threats & Attacks — by Philip J. Palin on December 17, 2010

According to Deutsche Welle:

German security officials conducted raids on two alleged Islamist groups in three states on Tuesday, suspecting the groups were involved in anti-constitutional activities. Authorities searched property belonging to the groups Invitation to Paradise (EZP in German), with offices in Moenchengladbach and Braunschweig, and the Islamic Cultural Center of Bremen (IKZB in German), in the city-state on the North Sea coast, as well as the private residences of some members.

A spokesman for the German Interior Ministry, explained:

EZP and IKZB are suspected of acting against the constitutional order by planning to create an Islamic theocracy in Germany. Salafists understand the Islamic religion to be an ideology of order and a system of law that is incompatible with parliamentary democracy. According to Salafist ideology, the laws can only be from God (divine sovereignty) and can not be made by the people… Salafi Islamist networks such as these organizations are opposed to liberal democracy and as such the laws-of-association can apply. For an embattled democracy, it is necessary — without waiting for the jihad to emerge in the form of armed struggle — to take action against anti-constitutional organizations. (Original German press release is available from the Ministry of InteriorWarning: I translated this myself and my German is even more amateur than my Greek.)

The Interior Ministry emphasized there is no evidence or accusation that the suspects were planning terrorist activity.  Rather, the charge being investigated is the purposeful undermining of German constitutional principles.

I cannot find a bill of particulars and my inquiries to the German Embassy in Washington have not yet been answered.  But it seems likely action is being taken under section 90b or section 92 of the German Criminal Code relating to Crimes against Peace, High Treason and Endangering the Democratic Rule of Law.  If correct, this is a significant twist in the German anti-terrorism strategy.  This may be the first time these provisions have been applied to Islamic organizations.  The decision of the Ministry to target and reference “Salafist” groups is  worth particular note. (In 2008 Khalil Al-Anani, then with the Brookings Institution, provided a brief backgrounder on Salafism.)

The chapter entitled Crimes against Peace, High Treason and Endangering the Democratic Rule of Law is the so-called “Special Part” or “anti-Nazi section” of the criminal code.  Section 92 reads:

(1) Within the meaning of this law, a person undermines the continued existence of the Federal Republic of Germany if he causes the abolition of its freedom from foreign domination, the destruction of its national unity, or the separation of one of its constituent territories.

(2) Constitutional principles, within the meaning of this law, shall be:

1. the right of the people to exercise state power in elections and ballots and through particular organs of legislative, executive and judicial power and to elect parliament in general, direct, free, equal and secret elections;

2. the subjection of legislation to the constitutional order and the subjection of the executive and judicial power to law and justice;

3. the right to form and exercise a parliamentary opposition;

4. the replaceability of the government and its responsibility to parliament;

5. the independence of the courts; and

6. the exclusion of any rule by force and decree.

(3) Within the meaning of this law:

1. efforts against the continued existence of the Federal Republic of Germany shall be such efforts, the supporters of which work toward undermining the continued existence of the Federal Republic of Germany (subsection (1));

2. efforts against the security of the Federal Republic of Germany shall be such efforts, the supporters of which work toward undermining the external or internal security of the Federal Republic of Germany;

3. efforts against constitutional principles shall be such efforts, the supporters of which work toward destroying, invalidating or undermining a constitutional principle (subsection (2)).  (The German Criminal Code is available in an official translation.)

Number 3 immediately above strikes me as the most likely legal basis for conducting the raids and collecting evidence.

In October Chancellor Angela Merkel gave a speech which seems to have presaged this new legal strategy.  According to a Reuters report (I do my own translations only as a last resort):

“Now we obviously also have Muslims in Germany. But it’s important in regard to Islam that the values represented by Islam must correspond with our constitution,” said Merkel.

“What applies here is the constitution, not sharia.”

Merkel said Germany needed imams “educated in Germany and who have their social roots here” and concluded: “Our culture is based on Christian and Jewish values and has been for hundreds of years, not to say thousands.”

The Chancellor’s words are now being put into action.

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Comment by William R. Cumming

December 17, 2010 @ 3:42 am

I consider Islam a Western Religion. No doubt however that Western Civilization has been shaped and manipulated over its various wars of religions. The Treaty of Westphalia-1648-was in part an attempt to elevate the Nation-State as the sole possessor of highly organized violence. Whether sub-state actors in the name of religion or other doctrines or political beliefs undermine that concept remains to be seen. Largely due to its belief in no regulation of technology the WEST seems to have empowered individuals to use and misuse that technology to undermine the state. NOBEL created dynamite which empowered the anarchists of the 19th and 20th Century. Now the cell phone and other technology has empowered terrorism. This dynamic appears to be a continuing factor in the decline of the WEST. Wikileaks and other efforts, including GOOGLE, are just examples that the principle of the control of violence and the needed information systems that propel that violence including religious instruction continue to undermine the state as the sole possessor of organized violence. History has not ended as some have proposed.

Comment by Philip J. Palin

December 17, 2010 @ 9:59 am


I agree we seem to be seeing the unraveling of the Westphalian synthesis. Certainly the potential for non-state actors to exercise catastrophic violence is already upon us. Even short of catastrophe, non-state actors can certainly complicate the lives of nation-states. As such the nation-state’s absolute preponderance of power is already gone.

Given today’s technological state-of-play, I don’t see more control as the answer. The focus on state control is the precise piece of the Westphalian synthesis that has been undermined by widely distributed technology. Unless the Nation State — or alternative structures — develop effective means of suppressing violence other than “control” we are probably in for a very nasty new Hundred Years War.

What I perceive the Merkel government is doing in deploying the “anti-Nazi laws” (above) is an effort to further extend its zone of control. Now the target of control is not just behavior, but speech; and not just incendiary speech, but speech which takes exception to current constitutional principles. I understand the motivation, but I doubt it will be effective… without more and more draconian efforts at control, which will ultimately be even more corrosive to the same constitutional principles.

Control has its place, but also has its limits… especially in dealing with complex and rapidly morphing social systems.

Westphalia was a social consensus that happened to depend on the Nation State being the principal agent of violence, and as such in a position to control the violent behavior of others. What would a new social consensus, appropriate to the contemporary context, look like and how would it behave?

Comment by William R. Cumming

December 17, 2010 @ 11:47 am

Great comment and many thanks. Also the Germanic Knights and their orders were heavily involved in the Crusades. Of course there were over 200 various Germanic princes and kings at one point.

It is my belief that unified Germany thought for a long time it could duck terrorism post the 1970’s and now realize they cannot. As the real power in Europe their policies will be of great interest to follow. Up to 500 million people with some Germanic background or language. The rest of EU is now a German protectorate with respect to finance and wondering if culture will not follow?

Pingback by Homeland Security Watch » UK Prime Minister: Counter-terrorism requires “much more active, muscular liberalism”

February 5, 2011 @ 6:39 am

[…] German Chancellor Merkel no doubt recognized — and appreciated — the solidarity Mr. Cameron demonstrated with similar remarks and policies undertaken by her government.  (Read more from a December post at HLSWatch) […]

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