The Politics of Listening: How to Claim Courtrooms as Sites of Social Conflict

Eingang zum Gerichtssaal. Bild: Sarah Klosterkamp, 2019
Bild: Sarah Klosterkamp, 2019

Courtrooms are sites of important social conflicts that not only allow conclusions to be drawn about social inequalities, discrimination, and the distribution of resources, but also cement them through decisions that often have far-reaching consequences for society at large. Sarah Klosterkamp, who examines this problem using the example of ‘circular migration’ between Germany and Syria during the war, argues for an expansion of strategic trial monitoring.

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More than 1,200 Germans went to Syria between 2014 and 2020, to a country and a war that for most of them had nothing to do with their lives in Germany. To an area where poison gas was used, people were beheaded, flogged and tortured, and hundreds of thousands lost their homes. A war that continues to this day and in which the Syrian government under Bashar al Assad is involved in many organizations that the Federal Republic of Germany now classifies as ‘terrorist.’ This means that participation and/or support is punishable under Section 129 of the German Criminal Code.

Today, one in three of those who left the country at that time is back in Germany and has been convicted. During their trials and in the dock behind bulletproof glass, they told German judges about that faraway war and their personal struggles. They spoke of the blows of fate here at their doorstep, before their departure, and there in the distance. Some seemed reformed and remorseful, others refused to testify, preferring to defend themselves in silence. The trials usually lasted weeks, months, sometimes years.

Returning from Jihad

Much evidence was reviewed, witnesses were questioned, and current and former comrades were invited to give their views and insights into what they could testify to. These extensive discussions in the context of criminal proceedings are part of the legal system. But this was once again challenged in a special way by Germany’s involvement in the Syrian war, in terms of time, personnel, but also with regard to the question of what really happened in Syria. Some said that they had worked there from afar, just helping, driving ambulances, distributing medicine, standing guard, with rifles in their hands, always without ammunition, of course. That’s what they told the judges. But there are also indications and testimonies that more happened there. Each of the accused tells his or her story a little differently, and sometimes it remains uncertain whether there is another truth. Whether, for example, young men from Germany raped or even killed themselves in this war that no one sent them to fight.

It is questions like these that judges have been trying to clarify in recent years, turning courtrooms into stages for social reflection that go unnoticed by the general public: Who are these Germans? Why are they leaving their sheltered lives in Germany to go to jihad? Why are they going to a war that has nothing to do with them? Why are they making the fate of the Syrian people their cause? Why are they voluntarily moving to a region from which millions of refugees are fleeing?

These questions alone suggest that the trials in the context of the Syrian war are not least a scene of social failure. A place where we can trace why young and old, men and women, decided at some point in their lives to leave their homes and join the jihad. In some cases, they were closely accompanied and supported by their parents, partners, and friends. Many of them ended up dying in Syria, while a few even became rich as a result of their direct involvement in the war. Judges can be seen searching for the truth, for the right verdict. Judges who have to decide whether these returnees can be rehabilitated, and in doing so negotiate the big question of ‘the future of all of us’ and ‘security in Germany.’ They are dealing with abstract fears and even more abstract dangers, with the identification of alleged acts in distant Syrian and Iraqi countries and the assessment of their significance for Germany, which must be protected from terror, although at the same time no one really knows how this is to be done.

Other stories about ‘state security’

As part of my dissertation, I followed more than 26 of these criminal trials against a total of 45 members and supporters of terrorist groups related to the Syrian war from 2015-2020. In “Geographie und Recht” (Geography and Law) (2023), I reflect on the social and political challenges of observing such trials and issues, and argue for a politics of listening. The book is structured around different foci and locations in different courtrooms. Together with the reader, I travel through time and space to share my experiences of listening, speaking, and negotiating in the context of criminal and counter-terrorism trials and their environs. These encounters and experiences have greatly broadened my view of how society deals with these criminal proceedings. The presented and selectively chosen examples of individual case histories also illustrate the complex decisions and triangulations that are necessary to critically engage with the production of knowledge and legal subjects in state institutions, which often pose ethical and moral challenges and are not free of contradictions and uncertainties.

For example, although spatial affiliations and gender attributions cannot explain ‘Islamist terrorism,’ they play an important role in the court. This can be seen in the organizations’ national and international networks, membership, and fundraising practices, as well as in the trials themselves. On the basis of a comparative analysis of all proceedings and the police measures and detentions on which they are based, it can be said that a) German defendants with an immigrant male background tend to be charged and convicted as ‘terrorist subjects’ more frequently than female defendants, and b) foreign nationals in particular, especially Syrian nationals, are placed in preventive detention disproportionately more frequently and for longer periods than German nationals returning from Syria.

On an overarching level, I am concerned with questioning power-permeated social orders such as classism, Islamophobia, sexism, and xenophobia – supported by a critical geopolitical and feminist approach. The resulting impulses point beyond the trial and the Syrian conflict, not least by emphasizing the need to tell “other stories” (Chimamanda Ngozi Adichie, 2009) about ‘state security’ and its interdependencies. This should contribute to a more reflective and critical understanding of state action, supported by teaching, lecturing, publishing, and other forms of knowledge production. I see many starting points for this, especially as jurisdiction and the threats it defines are subject to change. Currently, I see one of the greatest societal challenges in right-wing continuities, whose state containment in the context of ‘state security’ began almost simultaneously with the jihadist threat, but has received less attention.

Mirror and catalyst of society

I therefore also advocate an expansion of strategic trial monitoring. By placing the state institution of the court and the trials that take place there at the center of the analysis, we can and could learn a great deal, as in many other areas, for several reasons.

Courtrooms are places of public perception and social discourse. They are the sites of important social debates and decisions that often have far-reaching consequences for society. The outcomes of these proceedings rarely stand alone, but each of these judicial decisions can have a lasting impact on social norms and laws in the future. Because of the public and media attention that accompanies many court cases, they often become the focus of public debates that extend far beyond the individual case. In addition to questions of general security, this is particularly the case when it comes to white-collar crime and tax evasion – as can currently be observed in the Cum-Ex and WireCard trials in Germany – or when environmental and climate lawsuits involve the progressive criminalization of the commitment of climate activists, which can be expected to have a strong signal effect beyond the individual case.

It is therefore necessary to take a closer look here. To what extent do trials proceed differently when the defendants are among the country’s top earners? What forms and means of protest are legitimate when it comes to environmental and climate issues that ultimately affect everyone? What arguments are now being used to place parts of the climate movement under Section 129 and prosecute them? Is this still appropriate?

Structural inequality

The analysis of court cases also provides valuable insights into social structures and power relations. Trials often reflect the social and economic conditions of a society. The comparative analysis of similar allegations – as in the case of the 129 Syria cases – and the corresponding court decisions and statements of the parties involved allows conclusions to be drawn about social inequalities, discrimination, and the distribution of resources.

Studies such as Ronen Steinke’s “Vor dem Gesetz sind nicht alle gleich” (Not All Are Equal Before the Law) (2022) show that disadvantaged population groups – also in Germany – often have fewer chances to assert their rights in court, which points to underlying social problems. This is also in line with my observations. And I think we should urge Germany, which sees itself as a constitutional state, to make massive improvements here. A first step could be the concrete implementation of more “law instead of order,” as proposed by Maximilian Pichl.

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