Under Pressure Counter-terrorism in the Netherlands 1 LAW OF CRIMINAL INTENT From a Dutch viewpoint, it was quite a rare phenomenon: a number of judges abandoned the ivory towers of jurisprudence to express their concern about the energy the Balkenende cabinet was displaying in applying criminal law to combat terrorism. Geert Corstens, Justice at the Supreme Court, the highest court of justice in the Netherlands, called the proposed measures ‘a very dangerous package’ because ‘there has been serious tampering with the structure of criminal procedure, which is going to cause destabilisation of the entire construction’. In his opinion, the measures will make little or no contribution to the solution of the problem, while in the meantime ‘there is a considerable sacrifice of individual freedom’. But there has been hardly any expression of criticism or differentiation, said Corstens. ‘It seems as if there’s something about this subject that really gets politicians going. I find the image of war completely inappropriate. Have you seen a real social debate about this matter – in politics, journalism or even in academia? It does seem as if everyone has to toe the same line.’ Corstens is afraid that this atmosphere will also cause an increase of political pressure on legal power. What happens, for example, if there is a terrorism case in which is prominent in public debate and a judge lets the suspects go free because he finds the evidence submitted too flimsy? ‘Then probably a few journalists will make a fuss. And some politicians will attack the judge. The cry will go up that he isn’t in touch with reality in society and that he lets terrorists go free. In the picture I sketched, you can already see the tendency of politicians who have little respect for legal decisions. If those people are in the political majority, then there is a threat that the judge will be marginalised’. This concern was shared by Frans Bauduin, vice-president of the Amsterdam court of law. He fears that politicians will reproach judges that they do not appreciate the seriousness of the situation. ‘I must be able to continue to do my work. That boils down to the following: that when I weigh things up I must be able to monitor the arguments of all parties: the suspect, the Public Prosecution department and possibly the Algemene Inlichtigingen- en Veiligheidsdienst [General Intelligence and Security Service] (AIVD). Under the present proposals this balance is upset.’ The reaction of the politicians was curt: there is nothing wrong with the proposed legislation – and as a matter of fact, why are the judges poking their noses in? In fact, this immediately proved the judges were correct in their position: it is hardly possible to make any criticism of the anti-terror legislation of the Balkenende cabinet. In any case, extraordinary times demand extraordinary measures. That seemed to be the mentality that was prevailing in the Dutch Parliament. This is not completely incomprehensible. With the attack in Madrid, the threat of terror came physically much closer to home; the murder of Theo van Gogh literally brought terror from the radical Islamic position onto the Dutch doorstep. The general opinion was that it was time for the Netherlands to set aside its naivety. The Netherlands with its soft legislation, sensitive judges and bureaucratic police and justice system, was threatening to become the cesspit of Europe. This could be heard not just in the cafes but it also seemed to have become an established conviction in The Hague politics. It is therefore not surprising that in the meantime the cabinet introduced an impressive series of laws. A mere tightening up of legislation soon gave the impression of decisive leadership and that was what people were demanding. Nevertheless, bringing criminal law to bear against terrorism is a tricky business. In the first instance, criminal law is intended to be deployed after an offence has been committed. In the last ten years, there has been a lot of tinkering with that premise. Police and the judiciary, for example, can instigate exploratory investigations into (suspected) perpetrator groups before any punishable offences have been committed, what is known as ‘proactive investigations’. Criminal law, however, is now, as it were, being pushed even more to the forefront. It must also be possible for criminal procedure to take place before a terrorist action occurs. That is also understandable: it’s preferable to have the suspects arrested before a train is blown up rather than to begin the hunt for the perpetrators after the attack. But at the same time, that’s when the problems loom: how can the judiciary know what potential suspects are planning to do and how can they provide the convincing legal evidence that is necessary for a conviction? In any case, how can the judiciary know who the ‘potential suspects’ are? The judiciary is trying to solve that problem by making it possible to instigate faster- working investigative powers and to create descriptions of the offence that are quite vague and broadly formulated, as we shall see below. And that is precisely what is worrying the above-mentioned judges and others. The culture of intelligence work is beginning to percolate into criminal law. CRIMES OF TERRORISM ACT An initial, significant proposal is the Crimes of Terrorism Act now in operation. This act is the Dutch translation of a European framework decision, in which terrorism is defined and made punishable. In this manner, the same definitions and punishments for terrorism apply in all European Member States. Criticism of this framework decision came from all sides. The framework decision is in fact superfluous, because terrorism is already punishable in all the Member States, they can already proceed against organisations with criminal objectives and acts of preparation are already punishable. In short, ‘ordinary’ criminal law is adequate in order to proceed against terrorism and it is not necessary to set up separate legislation for that. ‘There are few matters that you can classify under “terrorism” that are not punishable in the member states’, asserted Gert Vermeulen, Ghent University, in the Staatscourant. In the same article, Harmen van der Wilt, University of Amsterdam, indicated the large number of treaties that already exist in Europe and worldwide to combat terrorism. ‘There is a threat of too many measures. More and more new initiatives will only lead to disintegration and a loss of clarity’. Moreover, critics point out that the definition proposed by the European Commission is on the broad side. According to the European Commission, terrorism consists of ‘deeds with the intention of intimidating countries, their institution or population, of changing or destroying the political, economic and social structures of a country.’ This definition is broad enough to include trade union demonstrations or other demonstrations in which stones might be thrown under the name of ‘terrorism’. This was a fear that turned out to be not entirely groundless when, soon afterwards, Spain made a proposal to improve the exchange of information about terrorism and subsequently also had the anti-globalisation movement in its sights. Furthermore, Spain referred emphatically to the definition in the framework decision. During a hearing in the Second Chamber of the Dutch parliament, Britta Böhler, a criminal lawyer, also pointed out this danger. ‘There is no unequivocal, standard definition of terrorism. That is because “terrorism” originated in a political concept. It is a political choice which actions we qualify as terrorism and which actions we qualify as campaigns, freedom fights or other forms of political expression. The definition is so broad that all forms of activism, political, economic, religious or otherwise fall into that category.’ Professor of Criminal Law, Ybo Buruma, also pointed to this problem, which applies even more strongly because, in converting the framework decision, the Netherlands adapted the text to some extent. Thus, for one thing, it is no longer required that there must be a case of illegal actions and for another, there is also a question of terrorism if ‘a section of the population’ is intimidated. Buruma: ‘This means that the minister has made it possible that trade union actions and campaigns of action groups are brought under the scope of the terrorism definition. We all know that this is not what the minister intended, but the judge can only make use of legal history at the moment at which he has something to interpret and he doesn’t have to interpret the word ‘illegal’ any more because that has been removed.’ Moreover, it is thanks to an amendment of the Socialist Party (SP) that the concept ‘illegal’ has still been included in the wording of the Act. The minister came in for even more criticism with his plan in the same legislative proposal to make conspiracy punishable, linked to the terrorist motive. During the hearing in the Second Chamber, various experts stated that these were two vague concepts that were difficult to prove and which were still a long way from the actual acts of preparation for a terrorist attack. Conspiracy, in fact, does not necessarily lead to an actual execution of plans or agreements and it is difficult to establish whether or not the plans were seriously intended. ‘How can we be sure that these are not just the macho plans of hot-headed adolescents that were never seriously intended?’ asked criminal law scholar, Harmen van der Wilt. He is particularly concerned about linking ‘conspiracy’ with ‘motive’. You just don’t know what’s going on inside people’s heads. In the opinion of Van der Wilt, that increases the chance of miscarriages of justice. ‘My greatest fear concerns that linking of the terrorist motive to legal concepts in the periphery of liability under criminal law’ said Van der Wilt at the hearing.