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Getting there and back… - A review of the prosecution of resident citizens returning to Denmark as “Syria Fighters”

Written by Professor Frederik Harhoff, LL.D. at Department of Law

According to a report by the Danish Intelligence Service in 2013, Danish citizens and permanent residents constituted the largest single European national group of foreign fighters attending the armed conflict in Syria measured by the size of the Danish population. This figure was reviewed in January 2015 by the International Center for Studies of Radicalization at King’s College in London which announced that Denmark had now become the second-largest European contributor of fighters to Syria, only superseded by Belgium.

The available figures show that more than 100 Danish citizens/residents have left the Country to join the fight in Syria, although it appears to be uncertain which side the Danish “Syria Fighters” are actually joining in the conflict in Syria and Iraq. Intelligence suggests that Danish citizens have joined not only the Syrian Opposition Forces but also IS (ISIS).

The response by the Danish Government and Danish authorities has been to adopt in March 2015 legislation for the purpose of seizing the passports of persons leaving for Syria to join the fighting and issuing a legal ban on their leaving the Country and otherwise to warn that such persons would be prosecuted for either treason or terrorism upon their return to Denmark.

However, the prospect of prosecuting someone under Danish Law fortreason depends on the nature of the conflict and on the interpretation of the expression in Section 102, par. 2.1 of the Danish Penal Code “armed forces of a hostile military or occupying power”. 

Non-international conflict
The nature of the conflict has to do with the fact that the armed conflict in Syria and Iraq is still a non-international conflict because there are no two or more States fighting against each other. Danish and allied forces are only targeting the armed forces and military installations of IS, and since IS is not recognized as a State (and understandably cannot be so recognized), the conflict cannot be characterized as international.

In that case, it is simply uncertain whether Danish Law can be interpreted so as to mean that treason can also be committed by giving assistance to a non-State organization such as IS; clearly, the wording of this Section was designed to criminalize assistance to States at war with Denmark. The issue, in other words, is to determine whether IS can meaningfully be qualified as a ”hostile military or occupying power“ with which Denmark could entertain relations.

In addition, a person joining the forces in Syria or Iraq on the side of the Syrian opposition forces and thus fighting against IS in support of the allied intervention can hardly be said to “weaken the military efficiency of the Danish state or its ally” as required in Section 102.

In any case, the maximum penalty available to violations of section 102 is 16 years of imprisonment.

Better option
In the alternative, Section 114 of the Danish Criminal Code criminalizes terrorism committed by anyone who commits certain crimes (murder, aggravated assault, etc.) “… with the intent to seriously threaten a population or wrongfully coerce Danish or foreign public authorities… to perform or fail to perform a duty, or to destabilize or overthrow the fundamental political, constitutional economic or social structures of a country… where by virtue of its nature or the context in which it was committed the act is suited to inflict serious harm on a country…” – (The translation into English of the word “threaten” is slightly ambiguous. The original Danish word is “skræmme” which contextually would translate into “scare”). For commission of this crime, the maximum penalty is life imprisonment.

Compared to prosecution for treason, this seems a better option, although some doubts may remain about the necessary evidence to prove the person’s requisite intent, in particular where the suspect has joined the war effort on the side of the Syrian Opposition Forces againstIS. The Kurdish armed branch Peshmerga, for instance, has attracted international government support and is not included on the international list of terrorist organizations, so no international criminal liability is attached to the mere fighting along with the Peshmerga

Complicated exercise
Furthermore, joining the conflict on the side of that branch in order to fight against IS raises no issue of “scaring” a population, and likewise no issue of coercing public authorities or destabilizing or overthrowing the fundamental structures of any country. It would seem difficult, thus, to prosecute a Danish citizen/resident for terrorism on that account. In one recent instance, Danish authorities have abstained from prosecuting a Danish citizen after his return to Denmark for having fought against IS in Syria.

Prosecuting any person for crimes committed abroad is, in any case, a complicated exercise because of the obvious difficulties of obtaining sufficient, reliable and relevant evidence. In another instance, a Danish resident has been detained in Lebanon for alleged violations of Lebanese law on terrorism for having fought along with IS; the Danish authorities are currently considering whether the evidence will be sufficient for a possible conviction and, in the affirmative, whether to request his transfer to Denmark for prosecution. Not an easy decision – at least from a criminal legal point of view.