Beyond the Dutch Election Manifestos: What kind of policy can we expect in The Netherlands to counter terrorism and radicalisation in the coming four years?

Tanya Mehra LL.M 18 Jun 2021
 

The 2021 Dutch Parliamentary elections are now behind us and after a messy start the process of forming a new cabinet is now in full swing. The main themes discussed during the campaigns were climate issues, COVID response, education, healthcare, the economy, the housing market and migration, but what can we expect in the next four years regarding tackling radicalisation and countering terrorism? Almost all of the election manifestos from the major political parties including VVD, D66, PVV, CDA, SP, PvdA, Groen Links, FvD, Christen Unie and SGP, pay extensive attention to radicalisation and terrorism as one of the main threats to national security. What is particularly striking is that most political parties focus exclusively on jihadist terrorism and, above all, have a repressive approach. However, what is much more striking is that some proposals not only undermine the rule of law, and are contrary to some fundamental human rights, but are also counterproductive in tackling radicalisation and addressing terrorism.

Criminal prosecution of the so-called “foreign fighters”

Almost all political parties oppose the repatriation of Dutch citizens who travelled to Syria and propose various measures to prevent their return in the interest of national security. The political parties are opposed to impunity but believe that foreign fighters should be tried in the region or by an international tribunal. A Dutch attempt to set up such an international tribunal with a few like-minded countries was made two years ago but it still hasn’t gotten off the ground. Furthermore The Netherlands and Canada have recently accused the Assad regime of violating human rights, in particular for committing torture. As far as the local trials of Dutch foreign fighters are concerned, the extent to which they will receive a fair trial in Syria and Iraq is questionable. Kurdish authorities in North-Eastern Syria, where most Syrian terrorist suspects and refugees are held, have not been recognized under international law but are now holding trials against mostly local fighters and have repeatedly called on other countries to repatriate “their” own foreign fighters. The Dutch attempts to bring crimes committed by ISIS fighters, including by Dutch foreign fighters, to justice are commendable but the Netherlands is obliged to do more. Under binding UN Resolutions 2178 (2014) and 2396 (2017), the Netherlands is obliged to criminalise a number of acts under national law such as providing terrorist training or travelling abroad for a terrorist purpose. In addition, these resolutions require all countries to develop an appropriate policy for the prosecution, rehabilitation and reintegration of returnees. As a rule of law-abiding country, the Netherlands should ensure that every Dutch person, regardless of how reprehensible the crimes are that they are accused of, has the right to a fair trial.

The repatriation issue

Some parties, such as D66 and Christen Unie, advocate bringing back the children of ISIS women in the Al-Hol and Al-Roj camps to prevent further radicalization, but would opt to leave the mothers there. This may sound like a humane solution, yet it raises all kinds of legal, psychological and security questions. In a case ruled by the Supreme Court last year which was initiated by 23 Dutch women in Kurdish camps, the central question was whether the Dutch  government is obliged to repatriate the women and children from the camps in northern Syria to the Netherlands, or whether the obligation is merely to make an effort to bring them back. The women invoked violations of several international human rights conventions, including the UN Convention on the Rights of the Child. Considering that the women and children are located in detention camps located in North-Eastern Syria, the principle of territoriality to establish jurisdiction is not met. According to the Supreme Court, the exceptions to establish extraterritorial jurisdiction on the basis of effective control over the area or of the persons concerned do not apply and therefore an appeal for the application of human rights was rejected. The discussion regarding the extraterritorial jurisdiction of human rights, however, has certainly not yet been concluded. The Committee under the Optional Protocol of the Convention on the Rights of the Child recently decided that regarding French foreign fighters and their children, the Convention on the Rights of the Child does apply since France does have access to French females and their children in the detention camps, and also in view of the willingness of Kurdish authorities to cooperate with the French government. Finally, a similar case has been brought before the European Court of Human Rights which may affect whether foreign fighters can successfully invoke human rights violations and claim repatriation. In view of these developments, the parties that are forming a new coalition would do well to adjust their position on inactive repatriation.

International cooperation among intelligence and security services

Other proposals made in the context of countering terrorism are aimed at gathering intelligence. Some parties, such as Groen Links, want the intelligence and security services to use their powers in a more targeted way, and D66 advocates for a European intelligence and security service. Given the cross-border nature of terrorism – for example the Paris attacks in 2015 – some political parties are rightly advocating for better cooperation between security services and the exchange of information. In recent years, the intelligence services in many European countries have been given more powers to collect and share information with other services, including in the Netherlands. Under the Intelligence and Security Services Act 2017, it is only possible to share intelligence with foreign services after an assessment based on the following legal criteria: (a) democratic embedding, (b) respect for human rights, (c) professionalism and reliability, (d) legal powers and capabilities and (e) the level of data protection. Better cooperation is essential, but a consequence is that a lot of (un)targeted data is collected and shared with foreign intelligence services which has the potential to violate the right of privacy. The recently published evaluation report led by Renée Jones-Bos also recommends that more safeguards be put in place for the exchange of data with foreign intelligence services. A concrete proposal would be to establish by law that no data is shared if there is a real risk that use by the receiving intelligence service will constitute a flagrant violation of international law, and in particular human rights and international humanitarian law. Currently, The European Services work together in the Counter Terrorism Group (CTG) and the ‘third party rule’ applies. This rule allows the intelligence services to stay in control of whom their information may be shared with. The question is whether, and what, criteria are used for the European Intelligence Service to collect data and then share it with non-European intelligence services, in particular how supervision of this superintelligence service is regulated, not only with regard to effectiveness and in the interest of national security but also how the right to privacy is guaranteed.

Criminalisation of participation in a terrorist organisation

The VVD wants to expand the definition of participation in a terrorist organisation and increase the penalty for the offence, but does not offer any further elaboration or explanation. From the Explanatory Memorandum to Article 140a of the Criminal Code (WvS), two elements must be proven for the offence of participation in a terrorist organisation: that the suspect belongs to the terrorist group, and that he or she has a part in or support, or conduct him or herself in such a way that they directly contribute to, the terrorist intent. For participation, it is important that the suspect knows about the terrorist intent of the organization, but this does not mean that the suspect must be aware of a specific crime. The problem with ‘participation’ as a basis for conviction is that it is based on status and is not directly related to criminal acts committed by the accused. There is insufficient distinction between support acts such as cooking, lending other forms of support that are not in themselves criminalized, and the commission of acts that are criminalized such as arson, or murder. Conviction based on participation in a terrorist organisation may not always reflect the seriousness of the underlying acts that have been committed. Prosecution for participating in a terrorist organisation usually results in a sentence of six years, although it would be possible to impose a sentence of up to 15 years. Therefore, the question that should be asked is whether Dutch foreign fighters really cannot be prosecuted on the basis of other terrorist offences such as the financing of terrorism, preparatory acts, murder for terrorist purposes or, if there is sufficient evidence, for international crimes instead of increasing the penalty or proposing new legislative changes.

Administrative measures

In addition to criminal measures, some political parties are in favour of imposing administrative measures without judicial intervention, such as depriving Dutch citizenship and imposing administrative detention.

At present, it is already possible, in the interests of national security, to impose administrative measures such as the obligation to report to the police, a restraining order, or an area ban for a period of six months. At the time that the Temporary Administrative Measures Counter-Terrorism Act was being drafted, it had been strongly criticised by the Human Rights Commission, among others, in view of the far-reaching restrictions on fundamental rights such as the right to freedom of movement – as guaranteed in Article 12 of the ICCPR without the intervention of a court, and without sufficiently clear criteria. However, according to the evaluation of the aforementioned Act that was carried out, the use of administrative measures has been very low in practice. In the two and a half years since the introduction of the law, only seven times have administrative measures been imposed in the nearly forty cases brought forward. Regardless of the fact that this law has so far not been applied widescale, this does not detract from the fact that when these measures are imposed, they are done so without the intervention of a court and on the basis of unclear criteria.

In considering the inclusion of further additional administrative measures, the political parties should exercise restraint. Infringements on the exercise of human rights are justified only if they have a sufficiently clear and precise legal basis, pursue a legitimate aim, and if they are non-discriminatory, for example, if they do not affect certain population groups more. In addition, the measures should be proportionate, strictly necessary, with as few restrictive consequences as appropriate, and provide a sufficient and adequate form of legal protection to individuals. The political parties should rather carefully consider whether existing measures – preventive, administrative and criminal – are being used sufficiently and correctly to counter a possible threat of terrorism and radicalisation.

Administrative detention

The PVV supports pre-emptive detention of Dutch foreign fighters and sympathizers of jihadist ideology. In 2017, the Members of the House of Representatives De Graaf, Fritsma and Markuszower (all of the PVV) submitted a Bill on Administrative Detention that would allow persons who can be linked to possible terrorist activities to be subjected to a six-month custodial measure in the interest of national security. The aim of this proposal is twofold – on the one hand to keep people who pose a threat to national security, but who cannot be prosecuted, off the streets and, on the other hand, to detain those dangerous persons who simply cannot be monitored because the jihadist movement is (too) large. Administrative detention deprives someone of his or her liberty which is possible in very exceptional circumstances, and only on such grounds and procedures as are established by law. The current bill does not meet these requirements in several respects, these being: the broad criteria applicable, for example the scope to use the measures against sympathizers of jihadism; the possibility of extending the measure an unlimited number of times; and the marginal review of the court. None of the substantive criteria of necessity, proportionality and subsidiarity are met, nor the required procedural safeguards of having a meaningful review. The Council of State has also stated that the reason to reject this bill is that it undermines the rule of law and leads to unlawful infringement of the right to freedom of liberty and security as guaranteed in Article 9 of the ICCPR.

Depriving Dutch citizenship

With respect to the deprivation of Dutch citizenship from Dutch foreign fighters without criminal conviction, this is already possible in the Netherlands if someone has dual nationality, and poses a threat to national security. At the time when the amendments to the National Act were drafted to expand the powers to deprive nationality, the Council of State and The Netherlands Institute for Human Rights also criticized this bill. This measure is difficult to reconcile with the responsibility that the Netherlands has to combat the impunity of the crimes committed by its own citizens and is counterproductive. The idea that taking away nationality prevents foreign fighters from returning home is far from true. First of all, foreign fighters can try to return unseen, and in several cases, returnees arrested in Turkey have been sent back to the Netherlands regardless of whether the suspects have had their nationality revoked. Fatima H. from Tilburg, whose nationality was stripped just before she was deported by Turkey, was recently convicted of participating in a terrorist organization and preparing terrorist crimes. She will be deported to Morocco after serving her custodial sentence. Depriving the accused of their nationality makes it difficult for the public prosecutor to prosecute, because the Netherlands would no longer have jurisdiction to prosecute the persons for crimes committed after Dutch citizenship has been taken away. The measure also discriminates between people with single nationalities and those with dual nationalities and increases the potential for further radicalisation of those detained in detention and reception camps in North-Eastern Syria. The UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance has also indicated that the stripping of nationality disproportionately affects Dutch people of Turkish and Moroccan origin and violates the principle of non-discrimination. VVD and Ja21 have included in their manifestos the proposal to now also strip Dutch foreign fighters of their nationality even if they do not have dual nationality, which would render them stateless. The right to nationality is essential and provides access to other rights and facilities linked to nationality such as education or housing. The Netherlands has ratified the Convention on the Reduction of Statelessness and is therefore committed to reduce statelessness and this proposal clearly violates this commitment.

Reintroduction of the death penalty

The SGP proposes perhaps the most extreme proposal in calling for the reintroduction of the death penalty for terrorism. The SGP further calls for the possibility of extradition of suspects to countries that use the death penalty, as long as there is a well-functioning rule of law in the country where the person will be extradited to. The death penalty was abolished in the Netherlands decades ago and its abolition was enshrined in Article 114 of the Constitution. The Netherlands has also ratified optional protocols on the abolition of the death penalty to the ICCPR and the Sixth Protocol to the ECHR. Extradition to countries that use the death penalty is also excluded, unless sufficient guarantees are given that the death penalty will not be implemented in accordance with Article 8 of the Extradition Law and Article 11 of the European Convention on Extradition.

Supervision and surveillance

Other proposals made by VVD are supervision and, if necessary, lifelong monitoring of foreign fighters released after detention. This measure is not only costly and difficult to implement, but also raises the question of whether a foreign fighter is actually punished twice – which goes against the legal principle of ne bis in idem. In fact, there is already an opportunity to monitor convicted terrorists, including foreign fighters, under the Long-Term Surveillance Act. Pursuant to Article 38z of the WvS, such a measure can be imposed as part of a prison sentence for a crime that is directed against, or endangers, the inviolability of the body of one or more persons. There is also the possibility – after a prison sentence – to extend the probationary period of prior release without a legal maximum. The application of these measures to terrorists is relatively unknown to the relevant organisations and steps are being taken to raise awareness. It would be much better to use the limited resources to improve rehabilitation and reintegration programmes in order to reduce the risk of reoffending. This would also be much more in line with one of the underlying ideas of the Long-Term Supervision Act aimed at preventing recidivism. It is not clear what the VVD’s proposal adds to this.

Withdrawal of asylum application and creating a dedicated prosecutor evidence collection

The CDA proposes that an asylum application or residence permit can be withdrawn in the case of radicalisation. According to Article 1F of the UN Convention and Protocol Relating to the Status of Refugees, the application for asylum can only be withdrawn if there are serious reasons that someone has committed a serious crime – such as a war crime or a crime against humanity. A Syrian asylum seeker was recently sentenced to six years in prison for participating in the terrorist organisation Ahrar al-Sham and for committing a war crime. This is an example of a potentially valid reason to revoke an asylum application as opposed to scenarios where an individual simply holds extremist ideas. Furthermore, the CDA proposes to set up a special Public Prosecutor charged with collecting evidence and prosecuting foreign fighters. Though this could help efforts, there already exist two UN mechanisms – the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian  Arab Republic since March 2011 (IIIM), and the UN Investigative Team to Promote Accountability for Crimes Committed by Daesh  (UNITAD) which were established partly with the support of the Netherlands to gather evidence of crimes committed by ISIS, amongst others. The question is, on the one hand, what will the special prosecutor add to the already existing national Public Prosecutor on Terrorism and, on the other hand, what will it add to these international mechanisms that, for example, are now cooperating with more and more countries and sharing information that can be used as evidence against foreign fighters?

Hate speech and hate preachers

Almost all political parties want to address hate speech and hate preachers in the coming four years. Examples include quicker prosecutions, extending area bans, refusing to grant permit to speakers, or drawing up a blacklist of extremist preachers who are not allowed into Europe. The line between freedom of expression and incitement to violence is very thin and will have to be looked at carefully in practice on a case-by-case basis and, in some cases, reviewed by a judge afterwards. These proposed measures also limit the right to meet publicly and the right of association but can also affect the right to freedom of religion, which is an non-derogable human right, to which restrictions are possible to an even more ‘limited extent’. This does not in any way mean that no restrictions on religious freedom are possible in The Netherlands. Pursuant to Article 6(2) of the Constitution, local authorities may impose restrictions on religious freedom outside buildings and confined spaces in order to protect, for example, health as was done during the COVID-19 pandemic. The exception for religious gatherings has caused some frustration. Some election programmes clearly state that hatred and incitement to violence should not be tolerated and should focus not only on jihadist terrorism, but also on other forms of terrorism and incitement to xenophobia, Islamophobia and anti-Semitism. The Christian Union would like to create an Anti-Semitism Coordinator.

Right-wing extremism

The majority of political parties focus heavily on jihadist terrorism, while right-wing extremism is on the rise in several Western countries. Unlike the Netherlands, a number of countries such as Germany, France, and the United Kingdom have already designated as terrorist organisations a number of right-wing extremist groups and placed them on national sanctions lists. According to the National Coordinator for Security and Counterterrorism’s (NCTV) threat report, a right-wing extremist attack in the Netherlands is plausible, but not expected. The General and Intelligence Service (AIVD) is also concerned that people in the Netherlands will become radicalised and considers a terrorist attack by right-wing extremists in the Netherlands plausible. The intelligence services recognize that young people in particular are increasingly coming into contact online with right-wing extremist ideas and radicalising. Earlier this year, two members of the right-wing extremist movement ‘the Base faced court for sedition and crimes with a terrorist intent. The question – given recent right-wing extremist developments abroad – is whether the political parties take the threat from a right-wing extremism sufficiently seriously? In addition, the potential threat that can arise from growing anti-government sentiment in the Covid-19 era must also be taken into account. The vast majority of Covid-19 protests are harmless and within the limits of the law denouncing confidence in the approach to the Covid-19 crisis. However, as with the storming of the US Capitol earlier this year, one can see that within the protests there are not only political activists, but also conspiracy theorists and right-wing extremists coming together. In the Netherlands as well, there have been an increase in various conspiracy theories which have led, among other things, to more online threats and (attempts at) violence in particular against government officials, scientists, law enforcement and the traditional media. According to a recent NCTV report, there is a small radical undercurrent – particularly made up of conspiracy theorists – that easily mixes with activist groups and protesters. The AIVD is also concerned that from within the anti-government protests, these could become a breeding ground for extremism. Domestic and foreign developments on how political activism can be influenced by conspiracy theories and extremists deserve more attention. The political parties would do well not to turn a blind eye to all but jihadist terrorism.

Repression versus prevention

Finally, all political parties tend to rely on a repressive approach. It is precisely when it comes to radicalisation that preventive measures are important against this. Only D66, the Christen Unie and the CDA, explicitly mention radicalisation and focus on increasing the resilience of society, detecting radicalisation early on, and working from within neighbourhoods and with so-called community police, youth workers, and teachers with prevention as a goal. Proposals have also been included in other election programmes that can contribute – indirectly or directly – to countering radicalisation. Examples include lessons in citizenship, democracy and the rule of law for all pupils in secondary education and combating segregation in schools.

At a time when authority and confidence in the rule of law and, in particular, in existing politics are under pressure, it is important to protect the rule of law and human rights and prevent further erosion. The main election programmes clearly illustrate that almost all political parties take countering terrorism and radicalisation seriously. Some of the measures proposed are contrary to the treaty agreements made by the Netherlands and create a breeding ground for further polarisation in society such as the stripping of nationality and the imposition of administrative detention. Only if the approach to radicalisation and combatting terrorism is carried out in accordance with human rights and rule of law, can this contribute to the effectiveness of the measures. In short, it is hoped that the political parties that will soon form a new cabinet will thoroughly review their proposed plans to address terrorism and radicalisation before pursuing these in the coming four years.

 

Tanya Mehra LL.M is a Senior Research Fellow and Programme Lead (Rule of Law Responses to Terrorism) 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.

 

* This piece has already been published in Dutch and has been translated for our English-speaking audience. You can find the original article here: Tanya Mehra, “Voorbij de verkiezingsprogramma’s: Wat kunnen we de komende vier jaar verwachten van de aanpak van radicalisering en bestrijding van het terrorisme?” Nederlands Juristenblad, Aflevering 23, 11 juni 2021, pp. 1880-1886

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