Matters of care or matters of security: feminist reflections on prosecuting terrorism financing

ABSTRACT

International treaties and European directives have put new legal responsibilities on EU member states to pre-emptively monitor and prosecute terrorist activities and offences. In particular, the prosecution of terrorism financing has been an important focus to prevent material and ideological support for terrorist organisations. Yet, a clear distinction between humanitarian aid and terrorism financing in a complex war zone is not always easy to draw: Which of the involved parties is perceived as a terrorist threat, and what is exactly considered humanitarian aid work? In this paper, we empirically unpack how EU counter-terrorism laws and policies are actually practiced during court trials. We investigate the legal distinction between humanitarian aid and terrorism financing in Syria, specifically centring on trials from the Netherlands and Germany. Drawing on the growing debates in critical security and legal studies on materiality, we focus on how materials presented during trials such as baby products, weapons, and money, are inscribed with a particular security logic to reach a legal verdict. Introducing the concept of “matters of care/security”, we connect these debates and findings to insights from feminist and post-colonial studies to critically inquire how racialised and gendered assumptions on terrorist threat impact terrorism trials.

KEYWORDS:

• Feminist theory
• counter-terrorism
• critical security studies
• terrorism trials
• care

Introduction

Between 2018 and 2021, the Limburg District Court in the Netherlands struggled with an important trial on the definition of terrorism financing. During its first sitting in 2018, we learn that the defendant had organised several trips to Turkey and Syria with his foundation “Babycare” to distribute clothes, blankets and other humanitarian assistance. When the case finally came before the court in 2021, the case file consisted of more than 11,000 pages to prove that the defendant deceived the local Muslim community with his charity organisation and deliberately sought and supported IS families. The prosecutor therefore argued that these activities could not be classified as humanitarian aid, but should be convicted as terrorism financing. The defence, however, argued that the nature of the materials, namely baby products and winter protection, could not have facilitated terrorist activities and that the intention of the project was to support vulnerable Syrian children. The court, during this case, was confronted with the difficult question whether mundane materials such as baby products, could be legally classified as funding terrorism.

Terrorism trials similar to the one in Limburg often lead to heated debates on the meaning of “terrorism financing” within the courts of EU member states in recent years. Many courts have faced a sharp rise in complex terrorism financing cases where (financial) transactions to Syria have been prosecuted as part of a European effort to prevent and indict terrorist activities in the Levant. This legal development is the result of several EU directives and a coordinated effort by the Financial Action Task Force (FATF), an international body that sets the standards for the global fight against terrorism financing. EU member states have drafted legislation that criminalises terrorism financing including acts of fundraising, collecting and transferring. EU member states are furthermore obliged to conduct a national risk assessment to assess the risks of terrorism financing. Part of this risk assessment is to identify sectors, communities and individuals who pose a terrorism financing risk themselves, or who are vulnerable to abuse from terrorism financiers. The FATF (2014, p. 3) in their eight recommendations have indicated that non-profit organisations (NPOs) can be exploited to raise and move funds or otherwise provide material support to terrorist organisations. The FATF furthermore argues that “Humanitarian NPOs often seek access to populations that are tied to local or foreign conflict in order to carry out good works, terrorist movements seek access to these same populations in order to exacerbate the forces of conflict or attempt to find sympathetic cover” (FATF 2014, 18). NPOs themselves have resisted this securitisation of their work and emphasised the serious implications of counter-terrorism financing regulations on their activities, ranging from losing their bank account to being subjected to charges of terrorism financing (HSC and WO = MEN 2019). In June 2016, the FATF admitted that a generalising approach to securitise all NPOs was counter-productive and that NPO’s should be assessed through a risk-based approach (FATF 2016). Nevertheless, the common assumption remains that terrorism financing and humanitarian assistance can appear quite similar, share logistical characteristics and often target the same populations or areas. Because of this, governments, financial institutions and increasingly also courts are asked to make a complex distinction between what counts as terrorism financing and humanitarian aid.

While it is often assumed that the law clearly stipulates what can be considered a terrorist organisation, and the support thereof, we observed that this is not at all self-evident. Instead, we started to question what does the court consider a terrorist act, and in reverse, what is considered an act of care or humanitarian aid? Our empirical insights illustrate that constructing financial transactions or other forms of material support, as terrorist activities, requires a complex legal interpretation on the security of territory, groups and the meaning of these transactions. We propose that making this distinction between terrorism financing and humanitarian aid is not merely a technical legal exercise, but an important security practice with socio-political and legal implications that are relevant beyond the decision of the court. As such, we further investigate and empirically illustrate, how the courts define which individuals or organisations are considered a terrorist threat or worthy and capable of humanitarian aid, and how such decisions are informed by assumptions on race and gender. In doing so, our paper offers two contributions to the current debates in European Security Studies.

First, and as previous studies have shown, there is a disproportionate focus on the Muslim community and specifically Muslim charities in the practice of monitoring and countering terrorism financing (Malakoutikhah 2020; Emon and Hasan 2021). While Atia (2007) has argued that the stereotyping of Islamic finance is connected to racialised and Islamophobic surveillance practices and a broader politics of differentiation between Western and Islamic financial systems, there is little debate on how the criminalisation of terrorism financing is done in practice, and how stereotypical notions of Muslims gain meaning in both security and legal settings. For example, definitions of violence as “legitimate”, “acceptable” or “evil” and “terrorist” are not a matter of applying a neutral legal definition of violence. Rather the enactment of violence as terrorism is intimately tied to stereotypical imaginations of the Arab and Muslim Other (Puar and Rai 2002, Gentry 2020). Post-colonial and feminist scholars have therefore previously demonstrated the importance of understanding counter-terrorism measures as a practice informed by racial, post-colonial and (hetero)sexist logics (Puar and Rai 2002, Parashar 2018, Abu-Bakare 2020).

We connect the current research on EU’s counter-terrorism framework in security studies (Bures 2010, D’Amato and Terlizzi 2022) to the growing scholarship from feminist and post-colonial studies that pays explicit attention to how categories and definitions in the so-called War on Terror are gendered and racialised (Dowler 2001, Sjoberg and Gentry 2016, Klosterkamp 2021a). Given the dominant and Eurocentric focus within conventional security studies, there is a need to critically unpack how race and gender are reconfigured through counter-terrorism measures and how Eurocentric definitions of terrorist threat fail to grasp the post-colonial context of the so-called War on Terror (Barkawi and Laffey 2006). More specifically, we are inspired by the work of the feminist scholar de La Bellacasa (2011) and her conceptual approach to “matters of care” as a tool to critically unpack the material dimension of (legal) decision-making. “Matters of care” supposes that objects are not inherently risky, careful or benevolent, but they are produced as such through particular practices. A focus on materiality is especially relevant for our research focus on material support of terrorism, where it is the material itself that becomes contested as either “innocent” or “terrorist”. We further develop this conceptual approach to unpack how EU courts differentiate between matters of care (humanitarian aid) and matters of security (terrorism financing). By building on the literature in security studies on care (Pallister-Wilkins 2016, Bellanova and Glouftsios 2022), and by departing from the rich and much insightful feminist scholarship in terrorism studies, we propose that examining “matter of care/security” can reveal how structures of race and gender shape what kind of subjects, materials and practices are inscribed with capabilities to care, in need of care or a security threat to care.

Second, our analysis pushes the debates on European Security by engaging with feminist and post-colonial debates in a less descriptive, more empirical focus on law and security. Our unique material from several years of court room ethnography (conducted both in the Netherlands and in Germany) provides an opportunity to examine how courts make such a complex decision. We specifically draw from two court cases from our courtroom ethnographies in the Netherlands and Germany where the defendants have been charged with terrorist offences as a result of their material support to organisations in Syria, and bring them into conversation. Both cases are considered landmark cases on terrorism financing, where the courts established important jurisprudence defining the legal boundaries of humanitarian aid and terrorism financing. We do not attempt to conduct a comparative analysis, but rather focus on the ways in which the court interactions unfold, and highlight the complexities of defining terrorism financing. Such an empirical focus on EU courts is important as the EU considers itself at the forefront of the fight against terrorism and places great emphasis on the rule of law in this fight. Yet, very little empirical research has been conducted into the ways in which courts function as important spaces where definitions of terrorist organisations, war zones and financial support are negotiated. In our analysis, we unpack how legal decisions are inscribed with political assumptions on the terrorist “Other”, and contest the seemingly legal and neutral divide between humanitarian aid and terrorism financing.

This paper is structured as follows: in the following section, we elaborate on both debates in feminist security studies and feminist literature on care. Bringing these two literatures together, we develop a conceptual framework of matters of care/security for the analysis of our empirical data. In the empirical part of the paper, we analyses in-depth multiple court cases around the question of terrorism financing and humanitarian aid. The empirical section first focuses on the separate cases in both Germany and the Netherlands and concludes with a deeper analysis of what matters of care/security does to understand better these court proceedings in terms of a feminist approach to European security. In the conclusion, we reflect on the broader implication of our study, and how both the conceptual and empirical approaches speak to current debates within and beyond security studies presented in this special issue.

Defining terrorism and its (legal) objectives within feminist and critical studies on security

In this paper, we draw on feminist and post-colonial scholarship that has investigated, exposed and made visible the gendered, racialised and Islamophobic assumptions on terrorist subjectivities and violence. Our focus on “matters of care” and “matters of security” is intrinsically related to how vulnerability, risk and terrorist threat are shaped by assumptions about gender (Sjoberg and Gentry 2016, Allsopp et al. 2017, Freedman et al. 2017). As Gentry (2020) argues, women in counter-terrorism practices are “feminized to the point of victimhood, with their political violence described in such a way as to absent this women of agency, or in how the men are described as hypersexualized and hyperviolent” (p. 7). Indeed, while studies have shown that the reasons for joining terrorist organisations such as IS are quite comparable across men and women (Loken and Zelenz 2018), gendered assumptions of women as “naïve followers of men” or “IS brides” are quite dominant in policy discourses on terrorist threat (Author2 2021).

Therefore, we still notice that despite an extensive feminist literature documenting the diverse ways in which women support and resist militarisation (Enloe 1990, 2004, Sjoberg and Gentry 2016, Parashar 2018, Tickner and True 2018), gender stereotypes continue to dominate security debates. Similar to Enloe’s earlier work on nationalism and militarisation it is assumed that “all the men are in the militias and all the women are victims” (Enloe 2004, pp. 99–118, Allsopp et al. 2017, p. 176). Herein, the image of a “female terrorist” seems to be incompatible with “traditional” images of women as “pure”, “maternal”, “innocent” and “peace-loving” (Elshtain 1995, Sjoberg and Gentry 2016). As such, as Author2 (2021, p. 2) has argued “these stereotypes still lead to the production of unequal policing strategies which infantilize adult women (Enloe 1990, Kinsella 2011), militarize young man (Allsopp et al. 2017) or reproduce neo-orientalist, gender-rendered assumptions within counter-terrorism efforts and de-radicalization approaches” (Dowler 2001, Sjoberg and Gentry 2016, Aoláin and Huckerby 2018). Particularly in (counter-) terrorism studies, the intersections between race and gender stereotypes result in either the image of the oppressed Muslim woman or the monstrous and irrational female subject (Gentry 2020). For decades, critical scholarship has shown the gendered, sexualised and racialised tropes that portray terrorist suspects as masculine and evil (Puar and Rai 2002). Herein, and as Gentry (2020) argues,

Terrorism as a label works because it makes sense given the historical legacies of whose violence is legitimated, whose lives matter more and whose bodies are seen as expendable. This is the ordering of violence, in which state violence is legitimated and terrorism is always seen in opposition. (pp. 195–196)

When studying court cases concerning terrorism offences in general and financing terrorism specifically, this attention to gender and the construction of terrorist subjectivities is particularly important. In the following section, we bring these observations into further conversation with feminist literature on the materiality of knowledge production to highlight how the courts stick to these gender-rendered tropes and lineages in these terrorism financing trials. While the feminist literature above is essential, it lacks a focus on materiality. A focus on materiality, as we will show through the empirical data, is essential to understand how objects such as baby products or weapons are legally classified and securitised. We therefore elaborate on de la Bellacasa’s (2011) conceptualisation of caring as “an ethically and politically charged practice, one that has been at the forefront of feminist concern with devalued labours” (p. 90). In her work on matters of care, she investigates how factual knowledge is produced, contested and stabilised. Yet, rather than following the Latourian concept of “matters of concern” to take serious the political life of things, Puig de la Bellacasa proposes matters of care as a feminist approach to move beyond a generic account of how objects are political.

Matters of care and matters of security

Accounting for matters of care, as Puig de la Bellacasa argues, includes care, emotions and affect as an important feature in our relationships with science, politics and the world. We engage with, study and produce knowledge on the matters we care for. In her work, de la Bellacasa pays attention to the non-human dimension of politics. Objects, technologies and infrastructures are relevant research subjects to unpack the politics of care: what kind of materials are considered worthy of care, or handled with care, and at the expense of whom or what? Therefore, matters of care are not neutral but relational, context-specific and inherently political (de La Bellacasa 2011, Martin et al. 2015). Caring is an affective practice, or a task that serves to maintain, repair and nurture the world we live in (de La Bellacasa 2011, p. 93). These practices are not separate from, but inherently connected to, material artefacts that enable us to perform care for ourselves, our bodies and the environment. Matters of care, however, as feminist scholars have illustrated, are often devalued, and “considered petty and unimportant, however vital they are for liveable relations” (de La Bellacasa 2011, p. 93). Caring has been associated with the realm of the subjective, the emotional and feminine, and as such caring practices or materials have largely been made invisible (de La Bellacasa 2011). Pushing back against this gendered (and often classified and racialised) assumption, matters of care as an epistemological tool helps to unpack such assumptions in the production of knowledge and politics.

For example, the power to care can determine which objects or lives are worthy of care and attention, and which can be neglected. This becomes evident in the post-colonial literature on care and racialised subjects within IR. Bhambra (2022) describes welfare structures in Britain, including charity and poverty relief, are tied to an imperial policy where colonised subjects and practices of extortion are part of Britain’s national structures of (financial) care. Similarly on Britain’s regulations of charity, Shilliam (2018, p. 9) writes that “To the deserving poor, relief was provided in the form of money, food or clothing. The undeserving were often sent temporarily to houses of correction”. In his work, he illustrates how the distinction between deserving and undeserving poor is connected to histories of slavery and abolition. As such, we build on this notion that deciding on “matters of care” is a deeply political issue, that should be examined not only from a position of the nation state and its citizens, but in a larger context of empire and global racial hierarchies (Bhambra 2022).

Within security studies, the notion of care is often used as a conceptual tool to study techniques of governance (Pallister-Wilkins 2016, İşleyen 2018). Pallister-Wilkins argued in the context of humanitarian work that care and control are particular security logics through which human mobility is regulated as a security issue. Similar, to the work of Bhambra (2022) and Shilliam (2018), Pallister-Wilkins illustrates that care in the context of humanitarian aid, differentiates between subjectivities, rendering some worthy of care in a broader system of violence and control. As such in the current literature on European security, care and control are deployed to unpack technologies of security governance (İşleyen 2018, Bellanova and Glouftsios 2022). We combine the fruitful work of de La Bellacasa (2011), Martin et al. (2015) and others, to elaborate on our conceptual analysis of studying materiality in court proceedings as matters of care/security. Inspired by our feminist starting point, we aim to push these debates a bit further by investigating how the definitions of care and security are deployed to produce interpretations of terrorist threat, inscribed by racialised and gendered logics. To grasp how European security is shaped by court cases and their legal materials and thus by unpacking their co-producing nature enacted through legal reasoning, we propose two conceptual moves as follows.

First, matters of care/security allow us to trace how legal knowledge production on terrorism as a material practice. This approach connects to the longer traditions in both security and socio-legal studies to take seriously the role of legal materials (Hohmann 2017, Cloatre 2018), ranging from the case file, to objects that are submitted into evidence, the court house and even the bodies of those who are subjected to the law (Cloatre 2018). As such, we understand “matters of care/security” as referring directly to the material nature of both legal and security practices. Feminist and post-colonial scholars in both disciplines have mobilised a material approach to unpack what legally counts as security and to whom security should apply (Puar and Rai 2002, Puar and Rai 2002, Cowen 2010). We connect to this material approach by following the interpretations of the legal materials presented in these court cases. Extending this notion of care to law opens up legal practices as a point of inquiry into what legal materials are cared for and what gendered assumptions and hierarchies dominate legal practices.

Second, we propose that matters of care/security are helpful to connect to feminist arguments of representation (Martin et al. 2015). Caring, as feminist scholars have argued, should not be understood as a romanticised or normative stance, but thinking about care also requires a reflection of neglect (de La Bellacasa 2011). Matters of care/security, therefore, draw our attention not only to the practices and materials that are visible and easy to study, but to further question what kind of caring acts and matters are made invisible. Indeed, caring for certain objects, phenomena or lives is often characterised by asymmetric power relations. Matters of care “means assembling often-neglected voices, objects, and interests, while staying accountable to the politics, power, and privilege involved in such work” (Martin et al. 2015, p. 630). Despite the seemingly technical nature of the law, court cases are important spaces where bodies are inscribed with racial and gendered assumptions (Author2 2021). Matters of care, therefore, pushes us to pay attention to the gendered and racialised subjectivities in the court room, and how this affects the legal interpretations of materials as humanitarian or terrorist. In sum, we propose that studying matters of care/security show that the legal cases have a greater impact beyond the court room, and tell us something about who is deserving and in need of care and security measures more broadly. In doing so, we push back against the binary that is produced through the courts that assumes a clear distinction between matters of care (in the form of humanitarian aid) and matters of security (in the form of terrorism financing). We criticise how courts carve out broader security decisions on territories and subjectivities who are (in)capable of care and/or terrorist violence.

The un/making of matters of care by legal institutions

Taking a feminist socio-legal approach, we build on court room observations of 25 court cases (against 45 individuals, both male and female, domestic and foreign nationalities) from Germany and 14 court cases against over 20 individuals from the Netherlands. The court room observations took place between 2015 and 2021. During the trials, we made extensive notes about the proceedings, the presented evidence, arguments, court judgments and expert testimonies. We complemented our court observations with interviews conducted among lawyers, family members of the accused, guards and other court personnel. Our empirical approach to studying terrorism financing cases is essential for a comprehensive understanding of the legal distinction between terrorism financing and humanitarian aid.

We analysed the observation notes, the interview transcripts and our fieldwork reflections through the two themes of (1) material evidence and their (2) legal rendering. For each theme, we traced how material and discursive practices constructed the case at hand as a matter of care or a matter of security. In the following sections, we highlight one landmark case from the Netherlands, and one case from Germany.

Example 1: “What does a humanitarian aid worker look like?”

In 2021, a landmark decision was made by the Limburg District Court in the Netherlands. It was the first time that a case was brought before the court where the judges needed to decide whether the transfer of goods to Syria should be classified as terrorism financing or humanitarian aid. To start, we sketch the background of the events leading up to trial. The case evolved around two trips from the Netherlands to Syria, in 2014 and 2016. In 2014 the defendant travelled to Syria to deliver multiple items in camps around Raqqa. The items included baby diapers, milk powder and mineral water. The prosecution presents these materials as evidence through a recollection of pictures, showing several children receiving the goods. During the court case, the prosecution argues that these goods, despite their seemingly benevolent appearance, should be understood as terrorism financing.

First, the prosecutor draws attention to the materiality of the objects transferred, creating an assemblage of materials that are inscribed with terrorist marks. The prosecution argues that the objects were packaged in simple, black plastic bags without any print or logo’s.¹ Based on expert testimony, the prosecution argues that this is in accordance with the practices of Islamic State, indicating that the trips were occurring in IS – controlled areas. This argument is complemented with other material evidence that shows that aside baby products, the defendant also distributed medicines. Although pictures of the medicines are absent, the prosecution presents hospital notes and receipts of the medication. The hospital notes and receipts are analysed by an expert who declares that this hospital was operating under IS rule. This analysis is based on the specific name of the hospital, the style of the invoice and the location of the hospital. In other words, the prosecutor insinuates that the defendant collaborated with IS to purchase and distribute medication and other goods. In 2016, a second trip was made by the defendant to Idlib. During his trip, the defendant took pictures and videos of the products distributed. This time, the focus was on the winter season, items included blankets and heaters. According to the prosecution, the blankets and heaters were divided unequally: only families of IS fighters were supported by project “Warm Winter”. In both instances, the prosecution argues that the defendant had little intention to support the citizens of Syria, but was deliberately supporting families of IS fighters.² This argument is based not only on the materials distributed, but on a broad interpretation of other materials such as the hospital receipts, the plastic bags and the pictures of the distribution. As such, the materials distributed are constructed through the prosecution as matters of security: objects that facilitate and enhance terrorist activities (Figure 1).

Figure 1. Babycare products distributed in Syria (Source: Screenshot of babycare Facebook made by the author & included in the case file).

Aside the focus on the nature of the material, the prosecutor furthermore focuses on the location of both trips. During the case, the prosecution argues that this aid specifically occurred in a geography under terrorist control, and as such cannot be understood as a form of care. The case file included pictures of the defendant eating ice cream in Raqqah with another foreign fighter, to prove that the defendant deliberately operated in IS-territory with IS fighters.³ The geographical space is defined by the prosecution as a terrorist space: an expert testimony confirms that both Raqqa and Idlib have been under IS control since 2014. As such, the prosecutor argues that humanitarian aid was impossible in these areas without supporting IS. We observe here the securitisation of an entire geography, rendering this place incapable of receiving care without constituting a security threat. As such, the prosecutor argues that “his [the defendant] actions, namely the material support of the armed struggle, strengthened the ideological basis of IS cum suis, and facilitated enlargement of the organisation. Others have been undoubtedly inspired to join IS by his [the defendant] actions”.⁴ The construction of the materiality and geography during the court case facilitates a link between the objects distributed and security threats such as recruitment of a terrorist organisation, continuation of violent attacks and strengthening ideological support. As such, the prosecutor argues that in this geography and under these circumstances, care cannot be provided unless by recognised (Western) NPOs who adhere to strict counter-terrorism regulations.

To these arguments, the defence brings forward the caring capacities of the material. First, they point to the nature of the material: baby products, diapers, water, blankets and heaters.⁵ All these materials are objects that serve to nurture and to protect. They also reconstruct the recipients of these materials: children and babies.⁶ The defence portrays these recipients as inherently innocent. Children are not IS fighters, even if their parents joined IS. The fact that the packaging or purchase of materials follows IS regulations, is not surprising according to the defence: the defendant was indeed operating in IS controlled area but still distributed humanitarian aid. In other words, the form of the aid does not change the caring nature of the materials. Interestingly, the defence points also to the argument of cooperating with the hospital: while the prosecutor understands this as a collaboration with IS, and therefore as evidence that the defendant should be considered a security threat, the defence emphasises a hospital as a space of care. They argue “IS indeed supported hospitals and pharmacies in these regions, also as a form of propaganda. Yet there is no evidence that IS benefitted financially from this particular purchase”.⁷ The defence continues to emphasise that a hospital is a space of care, not a space of terrorist threat.

Similarly, where the prosecutor constructs Raqqa and Idlib as geographies under terrorist control, where aid is impossible, the defence brings a more nuanced view to this statement. The pictures show that the defendant visits the camps in Raqqa to distribute materials. The defendant argues that this is an indication of not supporting IS fighters: it wouldn’t make sense for IS to Place their fighters in refugee camps. The defence argues:

My client visited three camps in Idlib in 2016. Camp Adma was under protection of the Free Syrian Army at that time. In 2016 they were even bombed by IS. We can see these pictures in the file. We can therefore conclude that there are no fighters in these camps. The fighters are in the houses of the people who are in these camps. The camps are protected by armed groups, even the Syrian red cross is carrying weapons.⁸

Now, the same geography that was earlier characterised as terrorist is now constructed as a space of vulnerability where care is much needed. Rather than a security threat, this geography becomes a space in need of security and care. The reconstruction of the material support in both 2014 and 2016 enact very different interpretations of who is a risk or at risk, and subsequently what should be understood as legitimate care, or a criminal act that constitutes a security threat.

Before the judges deliberate on the legal verdict in this case, the defendant is allowed a final word. He stands in court and pulls a vest out of his bag. He asks

what does a humanitarian aid worker look like? Is it wearing the khamees that I had on while in Syria that was described [ by the prosecution] as IS – clothing? I preferred to wear the vest, like the other humanitarian aid workers.⁹

In the end, the court acquits the defendant of the terrorism financing charges concluding that considering the nature of the objects (baby products, blankets and medicines), these activities have a fundamentally caring function. Even if some of the products were distributed among IS families, the products cannot be understood as facilitating terrorist activities. The verdict is unique in the Netherlands, as the threshold to convict terrorism financing is quite low. In the following section, we examine similar discussions around materiality, terrorist organisations and territory in the context of German, yet with quite a different outcome.

Example 2: “Why is he sitting there and not me?”

In a similar vein, as illustrated above, we unpack a court proceeding in Germany, running from 2016 for 1.5 years, dealing with proliferation accounts for several organisations based in Germany. Here too, diapers, milk-power, medicine were transferred. Additionally, even large-scale vehicles, such as discarded ambulance cars, were exported and carried from Germany through the EU Schengen Area to Syria (Klosterkamp 2021a: 7f). German officials assume that there were at least a total of 1070 citizens, who were suspected to have participated in the Syrian War, either by supporting, or even fighting alongside of organisations which were classified as terrorists by German Law (BT-Drucksache 19/6684). Approximately, one-third of the total of people who left the country are currently back in Germany (BT-Drucksache 19/284: 2, BT-Drucksache 19/11907). Of those who have returned, more than 15% are female (Klosterkamp 2021a: 212).

While these returnees all found ways to join the Syrian War through recruiters and/or along several logistical means, they stood trial upon their return in Germany. The case at hand was particularly special for three reasons. First, it was the very first criminal case related to the Syrian war, and it was so big in terms of scope and number of persons that it got splinted up and presented before two different courts in Germany – a district court (“Landgericht”) and a Higher Regional Court (“Oberlandesgericht”). Second, the accused were part of a bigger network, which, to an unexpected Extent, operated for quite a long time and very successfully hidden under the radar of the German authorities. Third, in this network women (wives, sisters, etc.) were also actively involved in this support. The accused, however, are almost exclusively men, eight in one trial and four in the other. They all have been registered in Germany, but not all of them had German passports or ID cards. Additionally, it was for a very long time the only court trial in Germany, where an elderly Muslim man and a young Muslim woman have been found in the dock, while all the other criminal proceedings have focussed exclusively on young, male Muslim bodies. What became more and more apparent was that these specificities were no coincidence but that there was a close connection between these three points and that this interrelation was one of the reasons why this network has been able to operate so successfully for so long (Figure 2).

Figure 2. Discarded ambulance cars, stuffed with baby food and diapers. (Source: Court case file).

The police investigated this case and concluded that they transferred a total of 12 large-scale vehicles, and collected more than 19,000 euros through theft and robbery as well as several thousand euros through fundraising. The network supported, amongst other things, the crossing of a total of at least six people to Syria, four of whom died in the course of hostilities in 2014. In the following months, as the phone records show, there were repeated trips, more than half a dozen in total. Ammunition and weapons were described on the phone as “rolls”, “flat bread” or “toys” and hidden on journeys between baby food and papers (Klosterkamp 2021a: 6). Financial support was collected, parallel to the fundraising or collections in Catholic churches and educational institutions, mainly within the framework of Muslim charismatic fundraisers such as “Help in Need”, “Help 4 Ummah” or “Ansaar International” and transferred via Western Union via Turkey to Syria (Klosterkamp 2021b). In addition to this, outdoor clothing, medicines and large vehicles were also transferred via these vehicle transports. According to a witness, who was himself in Syria for several months, it is pretty clear why: “they get less bombed in Syria”, he stated, “this way you can get safely from A to B in battle” (Klosterkamp, 2021a, p. 7).

During the court case, the court centred on the question how it was possible that such large sums of money, and such diverse objects could pass through the network from Europe to Syria. Interestingly enough, the proliferation consisted of a combination of materials: not only weapons and vehicles were transported, but also baby products, medicines and clothes were collected and transferred. The discussions in court focused less on understanding whether there was a legal difference between the nature of the materials, and more on what kind of people in the network were associated with security threats or care. The transfers were mostly carried out by eldest one of the accused, who is the only one alongside the women, who – as it appeared within the trial – was able to easily and almost invisibly travel through the Schengen Area by using discarded ambulance cars (see Figure 2). He was responsible for delivering the main parts of these vehicles and goods via convoys and who then had been the only person who was able to take an aeroplane for his way back to Germany, without being interrogated by the border police or airport security staff. The massive export of the discarded vehicles was made possible by officially registered export license plates issued the elderly man's wife to German customs. What was otherwise needed by the individual combat groups in Syria; was communicated to the group through the sister of one of the accused, who was friends with another woman. She had already left for Syria two years earlier with her husband, who had been a leading member of one of German subdivisions of Junud ash Sham. In other words, the women were an essential part of the network, both in terms of logistical matters and communication.

In the end, however, all members of the group got sentenced – all with the exception of the three women. According to the final verdict, “they only did what their husbands told them to do” (Klosterkamp, 2021a, p. 9). The Court didn’t perceive them as wilful subjects. Regarding the younger woman, the verdict underlined that she had no previous convictions. Furthermore, the verdict stated that she had to take responsibility for her two kids. The same, however, could be said about her husband. While he was also never convicted before, is the father of the two kids, and additionally was not present at all in the tapped phone calls, he received a quite different treatment. The father got charged with four more months, since it was “his” money, which enabled the movement of others, although it was obviously part of the same household. Instead, the judges focused on distinct patriarchal structures, which can be found in family settings, dividing these roles of these individuals along the lines of care and threat. Even regarding the question of her own wish of travelling to Syria, the court stated that “it is the husband, who decides, where to live” (Klosterkamp, 2021a, p. 8). According to the perception of the court, the women were only responsible for the household (Klosterkamp, 2021a). All these different accounts of legal reasoning mentioned above underlines courts orientalist perceptions of the defendants despite the fact that these materials illustrated pretty clearly the willingly and emancipated participation of the women – something which continued to be the main (legal) reasoning narrative in German legal proceedings, until more and more German-based female foreign fighters returned “home” in 2018 and 2019 (see: Klosterkamp, 2021b).

During the two years that the trial was going on (2015–2017) and the more evidence was presented, the older women kept asking, again and again: “why is it him, sitting in the dock and not me?”. She too felt, that she had taken more responsibility in the material support than for example her son in law and kept wondering if she might be the next one, to be put on the dock, but that didn’t happen. Instead, a comparative analysis of all proceedings, their underlying policing and custody procedures, show that (a) migrant male-read subjects tend to be classified, charged and convicted as “terrorists” more frequently than female-read subjects and (b) foreign nationals, predominantly Syrians, are disproportionately more frequently and for longer detained in preventive custody than German nationals returning from Syria (Klosterkamp, 2021b). In a similar vein, the network around these material supplies could be what Cowen (2010, p. 604) called “the Seam” for maritime security, the grey area between clear military involvement and humanitarian aid. The seemingly “caring materials”, such as baby powder, diapers and ambulance cars, were used to hide other, clearly weaponised materials, such as ammunition, weapons, blurring the assumed clear lines between care and security. The materials got successfully delivered, because elderly People did not seem to fit into the investigators profile and border control regulations, which were mainly focusing on young, bearded and male bodies (for more details see: Klosterkamp 2021a: 9, 2021b).

What these empirical examples illustrate is the extent to which the European border security apparatus as well as the German law enforcement share a racialised and gender-biased focus on Islamic terrorism, that exclusively aims at young, Muslim men with a salafi-jihadist background. As such, German legal institutions seemed to ignore or deny women-related activities and are keeping referring instead to traditional conceptions of socially expected roles of motherhood, home and caregiving and as such, illustrate throughout their legal reasoning and policing practices how law enforcement agencies reproduce and reify the legal objects and materialities they are chasing after (Klosterkamp, 2021a: 10). By illustrating these circumstances an analysis of legal proceedings and their outcomes enable us to investigate, how security knowledge represents a particular way of arranging social and political relations which are “too often rendered as already-given and unproblematic” (Hyndman 2012, p. 244) We will elaborate on this more in the last and final section, by bridging our empirical examples of terrorism financing to its legal renderings through European counter-terrorism frameworks and task forces.

The broader framework of terrorism financing and humanitarian aid

The court cases are an illustration of a broader security framework in which EU member states actively monitor and target humanitarian aid organisations and their operations in so-called “risky territories”. In this section, we elaborate on the empirical findings of the court case and tie this to the broader framework of countering terrorism financing and humanitarian aid. We particularly advance two important connections between court cases and larger questions of European security.

First, the interpretation of materials and acts by judges as matters of care/security in these court cases are not strictly legal affairs, but entangled with other European counter-terrorism measures. While the FATF guidelines presume a clear definition of humanitarian aid and terrorism financing we observe that in practice, the difference is often difficult to distinguish. Those assigned to the court in the Netherlands take the inherent nature of baby products, blankets and medicines, as caring objects. Those at the German court, however, do not distinguish between baby products and large vehicles, they are constructed together as a matter of security, within the scope of national anti-terrorism legislations. Therefore, while the EU strives for a harmonised legal practice, based on a clear bifurcation of care and security, we show that in practice these decisions are contentious and have a great subjective dimension that is heavily racialised and gendered.

Overall, the EU counter-terrorism framework and the FATF guidelines encourage a European counter-terrorism framework that securitises all forms of support to terrorist geographies. According to the FATF, all forms of support can be co-opted by terrorist organisations including aid programmes and even educational institutions (FATF 2014). These guidelines have heavily impacted NPOs and humanitarian aid working in so-called high-risk territories or geographical areas were the risk of terrorism financing is considered more pressing. Banks delaying money transfers, freezing accounts or even determining bank accounts are part of the (unintended) consequences of the counter-terrorism financing framework. Similar to the court cases, banks need to assess whether the transaction made by an NPO should be considered a legitimate transaction (humanitarian aid) or a criminal transaction (terrorism financing). Considerations, such as geographical scope of the transaction, recipients of the goods and nature of the projects, also play an important role for the banks to determine the risk of terrorism financing, not unlike the debates in the court cases. Banks also closely follow these court cases to determine their risk approach towards clients such as humanitarian organisations. As this decision is highly complex and contested, as we have shown in this paper, banks tend to be overly cautious in approving risky transactions. This has disproportionally affected NPOs, and in particular Islamic NPOs (Emon and Hasan 2021) and women’s right organisations (HSC & WO = MEN 2019).

Second, our analysis shows that the securitisation of aid and care is not a neutral risk assessment, but it is closely connected to the gendered and racialised assumptions on what kind of organisations and individuals are capable of carrying out and receiving care. The FATF, for example, recommends to only engage in humanitarian aid work through internationally recognised organisations. This reproduces an infrastructure of Western institutions being the reliable and trustworthy actor to provide aid and care in the global South. Other initiatives, smaller NPOs and Islamic charities become subjected to severe counter-terrorism regulations and measures (Human Security Collective 2019). EU policy, pushed by the FATF recommendations, reproduces a colonial bifurcation between “zones of peace” and “zones of war”, where the Global South is portrayed temporarily and spatially as a distinct geography characterised by conflict and violence (Bilgin 2020). Similarly, terrorist threat is defined along racial and religious lines, with images of orthodox Muslim men at the forefront of this defined threat.

Examining how courts make this distinction between care and security, we show the persistence of a racialised and Western perception of humanitarian aid and aid workers in the court rooms. In the Dutch case, the defendant who is a Muslim man, attracted to salafi ideology, fits the stereotypical images of a terrorism financier (Warde 2007). His actions are viewed and reconstructed by the prosecution through this lens, including the way he dresses, talks and acts. His actions of care are scrutinised and portrayed as security concerns through the arguments of the prosecution. Similarly, in the German case, this stereotypical outlook results in selective parts of the network being prosecuted, where only Muslim men are considered capable of terrorism financing. Therefore, similar objects such as baby products and blankets are considered a terrorist threat when distributed by Muslim men, yet largely ignored when mobilised by women or elderly persons. Retroactively, it is also Muslim men who need to be held accountable for these activities.

Women, on the other hand, are considered invisible in these activities. In the German case, they are deliberately constructed by the court as responsible for the household, “mothers” and other caring roles that exclude them from being perceived as a security threat. In the Dutch case, on the other hand, women are completely invisible. When reconstructing the network of the defendant, or his activities in Syria, there are only descriptions of men. Women are completely erased from the trial, confirming the imagination of terrorist networks and activities as a male activity. There is no mention of any woman in this trial except when referring to the human rights violations of IS.¹⁰ As such, women are only constructed as the victim of terrorist violence and their (potential) victimhood is used as a legitimation for these counter-terrorism frameworks. Our conceptual analysis illustrates how it is the entanglement of the transferred goods with the positionality of the individuals that become rendered as matters of care/security. In both cases Muslim women and their relation to material objects, are considered unimportant, victimised and only discussed in relation to their households (Gentry 2020). Women continue to be constructed as matters of care or subjectivities that provide care. Men, on the other hand, are considered terrorist threats, and become matters of security and legal prosecution.

Conclusion

In this paper, we propose a new conceptual framework to analyse European security issues in the aftermath of anti-terrorism trials and their legal rendering within Germany and the Netherlands. Connecting insights from Feminist Security Studies and Feminist literature on materiality we deploy “matters of care” and “matters of security” as a conceptual tool to analyse how security matters are constructed. In doing so, we do not only consider human subjectivities, but we focus on the material dimension of security. Focusing on how materials gain legal relevance during court cases, we unpack how diapers are inscribed with suspicion and threat through different material and discursive moves. In doing so, we shed a distinct light on how – from a legal perspective – humanitarian aid ends up as being portrayed as a form of terrorism financing and proliferation, which then leads and enables state institutions to undertake further legal actions (e.g. punishment and imprisonment), targeting especially on Muslim bodies. In this final section, we would like to briefly reiterate our main findings, both, empirically as well as conceptually, and end by providing suggestions for further research – within and beyond a European scope.

Empirically our analysis shows that courts in EU member states function as important spaces where security definitions and policies are re-negotiated and defined. By working through our court material from the Netherlands and Germany, we highlighted that two important issues form the centre of the legal discussions specifically: (1) the nature of the materials collected or transferred and (2) the legal rendering of these materials as terrorism financing or humanitarian aid. We observe that a material approach to studying the entanglements of law and security is essential: the nature of the materials informs whether a transaction can be understood as a form of care or security. Similarly, definitions of terrorist control, albeit over organisations or territories, are intimately connected to possibilities of care and security. Following the FATF’s recommendations, most European governments understand geographies under terrorist control as spaces where care and aid is impossible and dangerous. As such, while the legal European framework connects acts of terrorism financing to particular geographies under terrorist control, assuming clear definitions of the organisations and their territories, it remains often up to the courts to distinguish between matters of care/security. Here, the courts – or more precisely, the judges in charge – take different stands. As such, these European court cases on terrorism financing and proliferation are not isolated events, but their verdicts have a greater impact and should be understood in a broader counter-terrorism framework where particular geographies are securitised, and rendered a threat rather than in need of care and humanitarian aid.

Aside the empirical contributions, our paper also proposes a larger conceptual contribution to the feminist and post-colonial literature within and beyond European Security. We deployed matters of care/security to unpack how gender, race and age are configured in these terrorist trials. We specifically considered what kind of legal and security objects are rendered as matters of care and how the configuration of these objects relate to broader stereotypes on individuals, communities and geographies. Therefore, who is considered as “caring”, and who ends up being rendered as “risky” or even a security threat is not separate from what is considered a threat. Both the material nature of the legal proceedings and the positionality of the defendants are essential to understand how race and gender impact legal decisions on care and security. Analysing the court cases through matters of care/security illustrates that terrorist threats continue to revolve around a racialised and gendered stereotype of conservative Muslim men. Despite a long-standing tradition of feminist research in security studies and terrorism studies (Elshtain 1995, Puar and Rai 2002, Gentry 2020), our analysis shows how women are (re)constructed through a lens of care, either as caring subjects or subjects in need of care. Men, on the other hand, are constructed as security threats, and their caring capabilities receive only limited attention. Working through matters of care/security furthermore draws our attention to what is uncared for, neglected and erased.

Previous contributions to security studies show how care and control are entangled practices of governing health security (Pallister-Wilkins 2016) and border security (İşleyen 2018, Bellanova and Glouftsios 2022). Assessments of who is in need of care, or what constitutes an object of care, also produce hierarchies of risk and facilitate security interventions to govern these risky situations (Pallister-Wilkins 2016). By referring to these legal categories and categorisations, which are always subject to change, we illustrate how in some cases they serve to reproduce oppression and criminalisation of humanitarian actions. Furthermore, our analysis provides the conceptual tools to expand this analysis beyond terrorist trials to other areas of security, including border control, asylum procedures or security technologies were complex decisions render some eligible for care, while others become subject to severe security measures. We observe and witness these tendencies with a concerned eye and feel that such analyses and tools are critical to be part of challenging, dismantling and transforming prevalent relations, systems and structures of power – within and beyond Europe and its legal institutions as well as within and beyond Critical Security Studies.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by Fritz Thyssen Stiftung [grant number 10.18.2.008SO]; H2020 European Research Council [grant agreement no. 682317].

Notes

1 Fieldnotes June 2021, District Court of Limburg.

2 Het Openbaar Ministerie, Requisitoir, case 03-7202520-16, p. 19.

3 Ibid, p. 17.

4 Ibid, p. 22.

5 Fieldnotes June 2021, District Court of Limburg.

6 Ibid.

7 Fieldnotes June 2021, District Court Limburg.

8 Ibid.

9 Ibid.

10 Fieldnotes June 2021, District Court of Limburg.