The Syrian Foreign Fighters Problem: A Test Case from The Netherlands

On 23 October 2013, the District Court of Rotterdam convicted two men who wanted to go to Syria to join the jihad. The judgements in this case, which has been labelled as possibly the first trial of its kind in Western Europe, will be addressed in this commentary. However, before focussing on the specific judgements themselves, it should be recalled that, as in many European countries, the issue of persons leaving to and coming back from the Syrian battlefields is a prominent one in the Netherlands, with up to 107 individuals having travelled to Syria as of Spring 2013. In fact, in March 2013, the Netherlands National Coordinator for Security and Counterterrorism even raised the terrorism threat level from “limited” to “substantial”, one of the reasons being the increase in the number of jihadists travelling to Syria. It was explained that these “travellers acquire knowledge and combat experience and can pose a threat to Western interests. There is also a risk they will inspire others in the Netherlands to follow in their footsteps. These jihadists travellers can return to the Netherlands highly radicalised, traumatised and with a strong desire to commit violence, thus posing a significant threat to this country".

To counter this problem, several measures were announced by the Dutch Minister of Security and Justice Ivo Opstelten, from customised plans to detach certain individuals from their jihadist surrounding (both before and after travelling), conspicuous surveillance and disruption by the police, various forms of pressure (such as mandatory acceptance of educational/employment opportunities) and immigration law measures.

Another tool is criminal prosecution. Opstelten stated that “[p]articipating in armed jihad or jihadist training abroad is a criminal offence under article 134a of the Criminal Code. Returnees can also be charged with offences under other terrorism legislation”. This interesting article 134a of the Dutch Criminal Code makes it illegal “to furnish oneself or another intentionally the opportunity, resources or intelligence, or to try to do such, in order to commit a terrorist crime or a crime in preparation or facilitation of a terrorist crime, or to acquire knowledge or skills to this end or impart these to another”. The provision is based on the 2005 Council of Europe Convention on the Prevention of Terrorism and was also used by the prosecutors in the cases which led to the 23 October 2013 judgements that will now be addressed in greater detail.

On that day, the District Court of Rotterdam convicted two men, Mohammed G. and Omar H., of preparing crimes in the context of jihad travel to Syria. The Court held that Mohammed G. was guilty of making preparations for murder and Omar H. was found guilty of preparing arson and/or an explosion and of spreading, showing publicly or having in stock to spread or show publicly a text and/or a picture which incites to committing a (terrorist) crime. Interestingly, the Court did not base the convictions on article 134a of the Dutch Criminal Code, but on other provisions in that same code.

In the first of the two judgements, the Court held that the suspect made certain preparatory acts for murder (the judges referred in this context for instance to his remark that all those fighting in Syria are worth decapitation), such as making flight reservations to Turkey, with the aim to travel to Syria to participate in the armed jihad against the regime of President Assad and to found an Islamic state. The judges, remarkably, explained that this latter part – participation in the armed jihad in Syria to bring down the regime of Assad and to found an Islamic state – constituted the terrorist context in which the intended crime had to be seen. Hence, even though Mohammed G. was not convicted for a terrorist crime, "only" for preparatory acts to commit murder, the judges felt it necessary nonetheless to explain that this intended crime had to be seen in the terrorist context of the armed jihad. Why the judges made that statement is not exactly clear.

In the second judgement against Omar H., the judges repeated that the crime of preparing arson and/or an explosion had to be seen in a terrorist context, namely the armed jihad in Syria. For instance, the suspect, who adheres to jihadist ideas, told the police that he wanted to go to Syria to exterminate the army of President Assad. As to the second crime (spreading, showing publicly or having in stock to spread or show publicly a text and/or a picture which incites to committing a (terrorist) crime), the judges explained that he put movies and a text on internet sites which incited to the armed jihad. He also started a discussion on internet in an effort to entice people to commit crimes or aggression against the public authority.

In the end, Mohammed G. was ordered to spend a year in a psychiatric hospital because of his mental condition, whereas Omar H. was sentenced to one year imprisonment, with four months suspended.

Prosecution spokesperson Paul Van der Zanden was reported saying: “This is the first time that the Netherlands hands down such a judgement and this helps clarify the fact that it’s illegal to go to Syria to fight […]. Which means that we now have a legal precedent and can prosecute other people wanting to go to Syria or coming back”. However, even though this is an important case in that it is the first conviction of "Syria travellers" (to be), it should be stressed that the judges did not state that it is illegal to go to Syria to fight. They merely stated that it is a crime to prepare for acts such as murder and arson. And that this is illegal is nothing new. Special about this case, except for the fact that it dealt for the first time with Syria travellers, is that the judges remarked that these crimes were committed in a terrorist context, namely of persons who want to join the armed jihad in Syria and crush the army of Assad.

Even though the case thus arguably cannot be seen as a confirmation of the fact that it is illegal to fight in Syria, one could argue that if rebel fighters go to Syria to fight and kill an opponent of Assad’s forces, this could constitute a prosecutable act.

After all, the situation in Syria constitutes a non-international armed conflict and the rebel fighters consequently cannot be seen as combatants (a status only applicable in international armed conflicts). Now, even though combatants can violate international humanitarian law and can commit war crimes for which they can be prosecuted, they cannot be prosecuted for killing an opponent as such. In other words, combatants have a license a kill. That, however, is different for rebel fighters. Even though international humanitarian law would not prohibit the "normal" killing by a rebel fighter of a soldier from Assad’s forces on the battlefield, such an act, and a fortiori a killing outside of the battlefield, may be, and probably always is, a serious crime under national law, which can lead to the prosecution of that person, for instance on charges of homicide. That would obviously be the case for Syrian national law. But also Dutch criminal law could in principle be applied to Dutch foreign fighters who would kill in Syria, namely on the basis of the active nationality principle.

However, whether an actual prosecution will also be initiated may depend on many factors. To only give two examples, both pro and contra: on the one hand, the fact that the Netherlands has not yet formally recognised the Syrian National Council as the representative of the Syrian state (only of the Syrian people), meaning that Assad, in the view of the Dutch, is still the official Head of State of Syria, could maybe more easily lead to prosecution. On the other hand, article 6, paragraph 5 of Additional Protocol II to the Geneva Conventions states that “[a]t the end of hostilities, the authorities shall endeavor to grant the broadest possible amnesty to persons who have participated in the armed conflict”. That would obviously not be the case for persons who have committed war crimes, but it would mean that “the act of taking up arms should preferably not itself be punished”. Even though Syria is not a party to Additional Protocol II, one can wonder more generally (and also in view of the fact that 167 states in the world, including the Netherlands, are party to this protocol): if authorities directly involved in the conflict are basically requested not to prosecute persons for fighting as such, then perhaps a country far more distant from the conflict like the Netherlands should also follow that request.

When a rebel fighter does not only kill a person, but kills that person with premeditation, for example because he has indicated beforehand that he would slaughter all the soldiers of Assad he would encounter, that could perhaps constitute murder. This, in turn, can lead to a war crime charge. In that sense, one can understand Dutch Prosecution spokesperson Bart Den Hartigh, when he remarked that these persons run a big risk, when they return to the Netherlands, that they will be prosecuted for murder, if they have indeed killed persons. However, in that case, the murder must still be proven, which is obviously difficult in view of the chaotic situation in Syria.

The judgements of the District Court of Rotterdam are interesting in many respects, the most important being that it is possibly the first time that a court in Western Europe has convicted persons for crimes committed in what the judges call the terrorist context of preparing a jihadi trip to Syria. Additionally, the fact that the prosecution in the future is not bound to prove a terrorist crime, but "merely" normal crimes such as murder, is significant. However, the judgements also evoke questions, such as why the judges explicitly referred to the terrorist context of the armed jihad in which the crimes had to be seen, even though the persons were not convicted for terrorist crimes. Also, and of course taking into account that that was not the case here, one wonders what the judges would do with somebody who wants to fight Assad without a jihadist agenda and in that context, kills a soldier of Assad’s forces. Would that be seen, in contrast to for instance the situation in Belgium, France, and the UK, as an act that should be punished under domestic law? It would be interesting to find how the Court of Appeal and possibly the Supreme Court of the Netherlands think about at least the first issue. In fact, it was reported on 6 November 2013 that the Prosecution will appeal the judgement in the Omar H. case.

To be continued…