Vienna Attack: the Path of a Prospective (Foreign) Terrorist Fighter

Tanya Mehra LL.M, Julie Coleman J.D., LL.M 16 Nov 2020
 

On 2 November, the day before Vienna was due to go back into lockdown to control the spread of COVID-19, the city was struck by a jihadist-motivated attack in which four persons were killed and twenty-three wounded. Prior to this, Austria had only seen a few jihadist attacks as the government had been able to successfully thwart several terrorist plots, most notably a plan to attack the Christmas market in Vienna in 2019. This attack, which comes at a time when most European countries, including Austria, are focused on the (non-)repatriation of foreign terrorist fighters (FTFs), was perpetrated not by a returned FTF but by a person who had been radicalised in Austria. The perpetrator was known to the Austrian authorities as having been convicted — and released — for membership of a terrorist organisation, after his failed attempt to travel to Syria to join ISIS.

The events in Vienna have once more called into question the ability of countries to effectively counter the continuing terrorist threat. Like the attacks in London in November 2019 and in February 2020, it specifically highlights the challenge of effectively managing the risk posed by known violent extremists. Further, the incident points to the necessity of collaboration between a host of institutional and community-based actors to deliver effective rehabilitation and reintegration through the criminal justice system. Yet the Austrian government’s response to the attack seems to suggest movement in favour of reactive measures.

In this perspective we reflect on what is known about the perpetrator’s previous conviction and rehabilitation programme, how he planned the attack and obtained his weapon, whether he was a lone actor or part of a network, the response of the Austrian government, and most importantly, whether the attack could have been prevented by the authorities. As more convicted terrorists are released from prison, it becomes increasingly vital to respond to the continued threat that some might pose not by imposing reactive or short-sighted measures, but by ensuring that the entire chain works together, from the time of arrest or indictment, through the time served in prison, and especially to post-release supervision, to manage the risk to society in a rule of law compliant manner.

Previous conviction 

In April 2019, Kujtim Fejzulai, was convicted and sentenced to twenty-two months imprisonment for membership of a terrorist organisation. Under section 46a of the Juvenile Court Act Fejzulai is considered a ‘young adult’ (age 18 to 21 years), which provides him with certain procedural safeguards that take into account the development of young persons. The age of a young adult is considered a mitigating circumstance that should be taken into consideration during sentencing according to Austrian law. This followed his four months’ detention in, and subsequent extradition from, Turkey where he had been stopped attempting to travel to Syria to join ISIS. Having been in pre-trial detention in Austria since January 2019, in addition to the four months spent in detention in Turkey, on 5 December 2019, he was granted release, having served two-thirds of his sentence.

Upon release, Fejzulai was to be subject to parole conditions for three years, until December 2022. In light of the subsequent attack, questions have been raised concerning whether his release was appropriate, what kind of de-radicalisation programme he went through in prison, what conditions he was subject to upon release, and what monitoring was taking place in the community.

The practice of early release, specifically of releasing terrorist offenders after having served a certain percentage of their full sentence, is a politically sensitive topic for many governments, despite its widespread use within the criminal justice system. Although there is evidence to suggest that terrorist offenders are less likely to recidivate than other forms of criminals, the political ramifications of a released terrorist offender re-engaging in terrorism are enormous. In response to attacks like the one in Vienna, some governments have quickly issued legislation that bars automatic early release or increase the age of automatic release for juvenile offenders. Such an approach is not inherently problematic, and an individualised assessment may in fact be preferable, but it is crucial to nonetheless recognise that not everyone convicted of a terrorism-related offense will continue to pose a risk after their release. Rather than assuming that more time in prison for a terrorist will automatically equal a safer society, it is necessary to consider the efficacy of in-prison programmes, as well as post-release support that will mitigate the likelihood of any reoffending.

Rehabilitation in prison

The management of Violent Extremist Offenders (VEOs) has become an increasingly germane topic as the number of extremists being prosecuted and convicted for terrorism-related offenses has increased across not only Europe, but in many countries around the world. As the majority of VEOs will at some point be released after having served their sentences, there is intense scrutiny surrounding the programmes and interventions VEOs take part in during their incarceration. Almost immediately after the attack in Vienna, the media reported that Fejzulai had taken part in a de-radicalisation programme during his twelve months in prison and the Austrian Interior Minister was quick to state that he had managed to “deceive the judiciary’s programme of de-radicalisation.” However, DERAD, a non-profit organisation who was responsible for Fejzulai’s post-release de-radicalisation programming, has asserted that he had never been assessed as de-radicalised. It therefore seems at least possible that rather than successfully duping authorities into believing that he was de-radicalised, he was released regardless of his continued commitment to not only radical ideology, but the use of violence to fulfil those ends.

The exact de-radicalisation interventions that Fejzulai was involved in while serving his sentence remains unclear. Since his release, the Austrian authorities have launched the KOMPASS project, a coordinated “exit and de-radicalisation project” that seeks to reduce the risk posed by VEOs by focusing on their rehabilitation and eventual reintegration providing tailored, individualised support with security authorities and civil society working in close collaboration. The project purportedly runs for twenty-one months, meaning that for those VEOs with relatively short sentences, it is vital that the intervention start as soon as possible following the individual’s conviction. In order to ensure the programme maximises its impact on VEOs, it should include individualised treatment plans that respond to the specific risks and drivers of each participant. Moreover, in line with best practices for the management of VEOs, security authorities (including prison staff) should be working not only with civil society, but with other actors such as psychiatrists, in order to understand the risk posed by each VEO and how best to tailor interventions to reduce the risk posed pre- and post-release.

KOMPASS came too late for Fejzulai’s involvement, with questions remaining as to whether he underwent any de-radicalisation or dis-engagement programming. It is important to further understand whether he was able to successfully deceive officials to prompt his early release or if, as it has been suggested by DERAD, it was recognised at the time of his release that he was not de-radicalised. What is certain is that a number of warning signs exhibited whilst he remained under his post-release parole conditions did not produce a response from authorities.

Lone actor or part of a network?

Whether Fejzulai really operated as a lone actor or as part of a wider network may explain how he has radicalised, how he planned and committed the attack, and may even be an indicator as to whether more such attacks might occur. The fact that ISIS has claimed the attack does not automatically mean that ISIS coordinated the attack—he may very well have been inspired by the group without ever having any direct contact or support.

However, Austria has had a relatively high number of its citizens leave to join ISIS. Among the Western Balkan diaspora communities in Austria, Switzerland, and Germany, there have been links to jihadist recruitment and radicalisation. Vienna, in addition to other cities in Austria, has been a hub for organisation and logistics contributing to the radicalisation of several fighters determined to join ISIS in Syria and Iraq. In 2018, in an attempt to address the radicalisation, Austria ordered the closure of seven mosques and decided to expel nearly sixty imams to Bosnia. The legal basis for closing down these mosques is the revised Law on Islam which was amended in 2015 and permits closure if this is necessary to protect the interests of public security, public order, health and moral in a democratic society. This revision was criticised as the amendments restrict the right to association and discriminate Muslims as certain provisions of the revised Law on Islam are not included in other laws dealing with other religious faiths.

In the wake of the terrorist attack in Vienna, the government has shut down Tewhid Mosque and the Melit Ibrahim Association in Vienna, which the perpetrator frequented. The Austrian authorities have arrested fourteen persons and the Swiss have arrested two persons near Zurich, investigating their involvement and links to Fejzulai. Given these arrests and that Fejzulai was known to the authorities, it raises the question whether authorities had enough credible intelligence to act on this earlier.

Acquiring weapons and ammunition

Fejzulai most likely used an AK-47, a weapon commonly used in the Yugoslav wars and still readily available at black markets in the Balkans. Fejzulai, who has dual Austrian and North Macedonian nationality, frequently travelled back to North Macedonia and potentially obtained the weapon there. Another possibility is that he obtained his weapon through pre-existing criminal connections. A recent study has illustrated how Mehdi Memmouche, responsible for the attack at the Jewish Museum in Brussels, obtained his gun through a pre-existing criminal connection and how the El Bakraoui brothers, both with a criminal history, supplied the weapons for the attacks in Paris in November 2015.

Concerned about the number of terrorist attacks across Europe involving firearms, the European Union (EU) tightened its policy on acquiring and illegal trafficking of weapons through the EU Firearms Directive 2017/853, which imposes stricter rules on (semi)automatic guns, facilitates the exchange of information, and improves traceability of weapons — all designed to make it more difficult to legally obtain a weapon in Europe. Despite this, Fejzulai managed to obtain the AK-47 itself and in July 2020, he travelled by car to Slovakia and attempted to purchase ammunition for an AK-47, which can only be bought in Slovakia with a gun permit. Refusing the sale of ammunition due to Fejzulai’s lack of a gun permit, the arms dealer notified the relevant authorities in Bratislava, who in turn informed the relevant authorities in Austria. Despite the reports that, while on parole, Fejzulai attempted to buy ammunition for an assault rifle, following a brief investigation by BVT, Austria’s domestic intelligence service, no further action was taken. Austrian Interior Minister Karl Nehammer now admits the intelligence services failed to act adequately on the information received from Slovakia and has launched an internal investigation.

Post-release supervision and intelligence-sharing

It remains to be seen what the internal investigation will reveal in terms of failures after Fejzulai’s release; but what is clear is that effective post-release supervision and intelligence-sharing should have quickly flagged the perpetrator’s attempt to buy ammunition as something that would violate, and thus revoke, the conditions of his parole. Generally, conditions of post-release supervision for terrorist-offenders can vary, but may include frequent contact or check-ins with a parole officer; limitations on travel; restrictions on contact with certain individuals (who may themselves be linked to terrorism); blanket requirements for “good” or lawful behaviour, among others. Conditions set during the post-release phase for VEOs, like for other categories of offenders, should reflect the level of risk they might pose, with intensive supervision if the individual continues to pose an increased risk.

Supervision is not fool proof, but when combined with effective intelligence-sharing, it can provide an effective way to manage the risk posed by either individuals suspected of radicalisation to violent extremism or those who have been released following sentences for terrorism-related offences. BVT, when informed that Fejzulai had attempted to buy ammunition for an AK-47 without a license, should have been able to check his name against a list of individuals on parole following a terrorism-related conviction. The notification by the Slovakian authorities should have set off a chain of information-sharing that resulted in at least a more in-depth investigation into Fejzulai, if not the full revocation of his parole and his return to prison.

Beyond BVT’s missed opportunity, Fejzulai’s post-release de-radicalisation supervisor also reportedly told authorities that he had observed Fejzulai’s religious beliefs become increasingly extreme in the period leading up to the attack. Intelligence authorities had yet another opportunity to prevent Fejzulai from carrying out the attack — he posted a photo of himself with a weapon on Instagram only hours prior to the attack. At a minimum his activity on social media should have been monitored by those responsible for his post-release supervision, meaning that his possession of arms should have been known to the authorities, making them able to intercede before the attack. Although ongoing supervision is not an infallible restriction, there were several points at which action could have — and should have — been taken.  

Announced measures by the Austrian government

With each attack — large or small — countries reflexively announce new security measures. France did so after the beheading of a schoolteacher and the attacks in Nice, and so now has Austria. The proposals in Austrian Chancellor Sebastian Kurz’s announcement included a number of steep changes including: the ability to keep individuals convicted of terror offences behind bars for life through indefinite detention; electronic surveillance of people convicted of terror-related offences upon release; further expanding the possibilities to close places of worship; the introduction of a register for Imams; and criminalising political Islam. The question is whether such measures actually contribute to preventing future attacks or if they are merely window dressing aimed to appease the fears of the general public. In the worst-case scenario, they are not only the latter but are also counter-productive.

No society can be 100 percent risk-free. Keeping terrorist offenders in indefinite detention as long as they pose a risk to national security, raises several human rights concerns and as mentioned earlier does not automatically lead to a safe society. Some of these proposals also raise concerns regarding the principle ne bis in idem — the idea that if a person has served his sentence, they should not be punished twice for the same crime.

The measures expanding the possibilities to close mosques and criminalising political Islam, relate to fundamental principles of freedom of association, assembly, and of religion. Although only the latter is an absolute right, tolerance of extremist views, regardless of whether they be political Islam or right-wing extremism, is required in a democratic society. Only when extremist views lead to violence, incite violence, discrimination or terrorism do they cross a threshold into impermissible, illegal actions. These measures threaten to further marginalise the Muslim community, giving the perception that they do not have access to the same rights and legal protections as the rest of society.

The first priority should be to carry out investigations and then assess whether the current measures are adequate and have been properly applied, before rushing to adopt new measures whose implications may not have been duly considered. These measures are unlikely to prevent future attacks, may contribute to the cycle of radicalisation leading to violent extremism, and do not aid in ensuring that existing frameworks for countering terrorism work effectively in keeping societies safe.

Conclusion

At this stage there remain many unknowns: how and where did Fejzulai acquire his guns? Did the de-radicalisation programme in prison fail? Was he able to fool the authorities? And was he part of a wider network that facilitated the attack with ties to ISIS?

The discussion surrounding the circumstances of the Vienna attack highlights the need to reflect on what is currently being done to manage these individuals, so that identified best practices can be fully implemented in other cases of terrorist offenders. In Europe the average sentence for convicted jihadist terrorism is five years and as more of these offenders are released from prison in coming years, governments must ensure that they are taking the necessary steps to ensure that the terrorist offenders are prosecuted to the full extent of the law, as well as manage the rehabilitation and especially post-release supervision and eventual reintegration of these individuals into society. Despite the political sensitivities surrounding their release — and as much as the public may view these individuals as irredeemable or unwelcome — the majority will eventually be released back into society. As citizens of Europe, governments must act responsibly to both protect society and also to afford these individuals the same rights as all other categories of citizens.


ABOUT THE AUTHORS

Tanya Mehra LL.M is Senior Project Leader/Senior Research Fellow at the International Centre for Counter-Terrorism – The Hague. With a background in international law Tanya is involved in conducting research, providing evidence-based policy advice, advising governments on a rule of a law approach in countering terrorism. Previously she worked at the T.M.C. Asser Instituut where she was engaged with conducting needs assessment missions, capacity building projects and training activities.

Julie Coleman is Senior Research Fellow/Senior Programme Manager at ICCT. She holds a Juris Doctor (JD) and Master of Laws (LLM) in International and Comparative Law from Duke University, a Master of Arts (MA) in International Relations from the University of St Andrews, and a Graduate Diploma of Law (GDL) from the College of Law of England and Wales. Her work focuses on the intersection of national security and human rights and she has a particular interest in issues surrounding deprivation of nationality. Prior to joining ICCT, Julie worked with the ILO in Lebanon, as well on various USAID and US State Department projects in the Western Balkans.


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