Criminal Law As Ultimum Remedium Or Optimum Remedium? the Criminalisation of Preparatory Acts of Terrorism in the Netherlands

Terrorism Trials: Criminal Law as Ultimum Remedium or Optimum Remedium? The Criminalisation of Preparatory Acts of Terrorism in the Netherlands

Student: Jip Geenen Supervisor: Prof. Dr. De Goede Second Reader: Mw. Prof. Dr. M.E. Glasius June 2016 Master thesis Political Science: International Relations European Security Politics University of Amsterdam

Contents

Chapter 1: Introduction ...... 1 Chapter 2: Conceptual framework ...... 4 Risk Management and Pre-emption ...... 4 Risk and Law ...... 7 Law-making & Preparatory Acts ...... 10 Law-making in the Netherlands ...... 10 Preparatory acts ...... 11 Chapter 3: Research Design ...... 15 Data gathering and Case Selection ...... 15 Data Gathering ...... 15 Case Selection ...... 15 Discourse analysis: operationalisation ...... 18 Interviews ...... 21 Reflection ...... 22 Chapter 4: the Law-making Process ...... 24 Terrorism Act ...... 24 Terrorism Training ...... 29 Terrorism Financing ...... 32 Concluding Remarks ...... 33 Chapter 5: the Court Cases ...... 37 Shukri F...... 37 Context Case ...... 37 Adil C...... 38 Salim S...... 39 Controlling the risk ...... 39 From ultimum remedium to optimum remedium ...... 44 Criminal law as an instrument ...... 47 Concerns & consequences ...... 48 Civil rights ...... 49 Legal principles ...... 51 Concluding Remarks ...... 54 Chapter 6: Conclusion ...... 58 Bibliography ...... 61 Appendix: Interviews ...... 66

Chapter 1: Introduction Terrorism poses a challenge to the majority of governments throughout the world, therefore, how to address it has been a topic of heated debates for many years. Specifically, since the 9/11 attacks in the United States, terrorism has become one of the most pressing issues in (Western) countries. In recent years, due to a steady increase of foreign fighters either travelling or attempting to travel to Syria and/or Iraq to join the armed conflict, the problem has gained new momentum. Terrorism can be addressed in a variety of ways. Traditionally, a distinction can be made between repressive and preventive measures. In this respect, preventive measures focus on de-radicalisation and counter-radicalisation whereas repressive measures take the form of military or legal action (Reed e.a., 2015: 7). This thesis focuses on the role of the criminal justice in counter-terrorism. It is believed that, with current challenges such as foreign fighters, courts are increasingly becoming an arena where the fight against terrorism is taking place (De Goede & De Graaf, 2013). This is demonstrated by the outcry of Dutch politicians for a law enabling the detention and prosecution of returned foreign fighters for preventative reasons – without there being evidence that they will commit an attack or have committed offences while in Syria and/or Iraq (NRC, 2016).

Terrorism legislation and terrorism trials focusing on preparatory acts have developed over the years – especially with the recent increase of foreign fighters, there are more cases focusing on these offences. Not only in the Netherlands, but also internationally the legal net has been cast wider to enable a broader set of instruments to assist the criminal justice sector in approaching terrorism. This is exemplified by the United Nations Security Council Resolution 2178, which focuses on the foreign fighter phenomenon. The Resolution concludes that member states should undertake steps in their domestic legal sphere to address the issue. Preparatory acts are those acts in preparation of a terrorist offence. This means people are not only prosecuted (and potentially sentenced) for fighting or committing an attack, but also for preparing to leave, facilitating someone’s travel to the conflict area or recruiting others to do so. These cases focus on preparation and the future consequences these actions can have, where no actual terrorist act has been committed (yet): the preparation becomes the criminal act. The laws criminalising preparatory acts make it possible to sentence individuals before they potentially commit an attack or join the armed conflict in the future. According to some scholars, this has led to increase of the precautionary principle in criminal law (De Goede & De Graaf, 2013; Ericson, 2008). According to these scholars, this could be a problematic development for the rule of law, as precaution could undermine

traditional legal principles such as legal certainty and a fair trial (Ericson, 2008; Amoore, 2008).

Analysing and understanding the changes in legislation and the way these changes functions in court is relevant from both a societal and scientific perspective, because the rule of law and a just judiciary system are central aspects of democratic societies, such as the Netherlands. Therefore, researching these developments is important in order to grasp this process and its meaning for criminal justice. From a scientific perspective, this research is relevant as little research has been done on the law-making process of these preparatory acts in the Netherlands. This also applies to the study of terrorism trials since the foreign fighter phenomenon. Therefore, this thesis fills a gap in which both the law-making process and the approach of actors in court is researched in a recent selection of terrorism trials in the Netherlands. The timeframe that is specified in the central research question of this thesis starts after the adoption of the so-called ‘Integrale Aanpak Jihadisme’ in August 2014, translated here as Comprehensive Approach to Jihadism. As discussed more extensively in the Research Design (Chapter 3), this policy document can be taken as a starting point as it shows the emphasis the Dutch government placed on addressing the issues of foreign fighters and jihadism, also in the criminal justice sector. This leads to the formulation of the following central question of this thesis:

How are preparatory acts of terrorism criminalised in the Netherlands and how do the public prosecution and courts approach them after August 2014?

How these preparatory acts are criminalised, and how the legislation is approached by the public prosecution and court, is researched from a framework outlining risk management, precaution and the relation between risk and law. This means that the criminalisation of preparatory acts is seen as a way of controlling the risk of terrorism, based on the precautionary principle (De Goede & De Graaf, 2013; Ewald, 2002). The relation between risk and law is problematic (Ericson, 2008), and therefore, governing risk through law is important to study. Discourse analysis is able to address how these acts are criminalised and approached. Further, it opens up the larger discussion on the meaning of these developments for criminal law. This latter point is supported by interviews with stakeholders involved in the trials. Understanding the criminalisation of these preparatory acts, and crucially, how they are addressed by courts and the prosecution makes it possible to understand the underlying

discourse used in the Netherlands and the potential legal changes this causes. Through an analysis of the proposed legislation, the governmental documents arguing for the legislation and the parliamentary debates, a thorough discourse analysis of the argumentation used can be accomplished. This offers a way of understanding the laws and criminalisation of these acts, especially focusing on risk management and precaution. This will be further discussed in the Conceptual Framework (Chapter 2). After analysing the law-making process, four court cases are analysed in which these laws play a role. By researching both the public prosecution and courts, it is possible to see if and how this same argumentation is adopted and how these offences are approached. Here, the interviews with the stakeholders play a central role.

The timeframe allows for the analysis of four court cases: starting with Shukri F.’s case in December 2014, and ending with the verdicts of Adil C. and Salim S. in February 2016. The primary focus of these trials lies within the context of foreign fighters, meaning that they focus on recruiting, abetting or facilitating for joining the armed conflict, or on the financing of a foreign fighter. It is important to note that the substance of evidence presented by the public prosecution can differ between the cases – in some instances it can be more conclusive than in others, legally speaking – but this is not the focus of this thesis. The analysis will focus on how the public prosecution and courts approach these cases. This will be further discussed in Chapter 2 and 3. The focus in this thesis is on the Netherlands, not only due to language and familiarity, but also because the issue of foreign fighters plays a vital role in the country. Furthermore, the fact that this comprehensive approach has been adopted offers an interesting case for the study of criminal law in counter-terrorism.

In order to answer the central question of this thesis, first the Conceptual Framework will be outlined in which some of the central debates and concepts of importance to this thesis are discussed (Chapter 2). In Chapter 3 the Research Design will be outlined and questions on data gathering, case selection, discourse analysis and interview methods are answered. This also includes a reflection on the methodological decisions made throughout the thesis. Chapter 4 is the first analysis chapter, presenting the findings of the discourse analysis of the law-making process. In the fifth Chapter the findings of the analysis of the court cases are presented, focusing on the public prosecution and the courts. Finally, in Chapter 6 the conclusions of this research are presented. This Chapter also briefly reflects on the thesis and some suggestions for further research are proposed.

Chapter 2: Conceptual framework In this Chapter, the approaches and concepts used throughout this thesis to analyse the findings and answer the main research question will be discussed. First, the concept of risk (management) will be examined, with specific attention devoted to terrorism risk management. The concepts of precaution and pre-emption will also be elaborated upon in relation to terrorism risk management. Secondly, the relation between risk management, terrorism and law will be analysed by discussing relevant scholarly work on the effects of risk management and the precautionary principle on criminal law. Specifically, the role of terrorism trials in this environment of risk will be discussed. Finally, by giving a brief overview of the law-making process in the Netherlands where it relates to the main legislation on preparatory acts, some basic assumptions for this thesis will be laid out. This section will also analyse the relation between the law-making process and court cases and the relevance of studying this relation. After a discussion of preparatory acts – as a central concept in the research question – it is necessary to discuss the organisational aspect of the political institutions playing a role in the thesis: as both the law-making process and the interpretation thereof are a central aspect of the process, it is necessary to understand the institutional organisation. These concepts together form a framework that informs this thesis – partly they have shaped the research question and partly they inform the approach to data and findings in order to answer the research question.

Risk Management and Pre-emption Risk has become an important concept in both modern society and academia. Ulrich Beck (2002: 39-40) introduced the idea of the world risk society in his work Risk Society: Towards a New Modernity (1992): a society where multiple risks appear that are uncontrollable and unpredictable (2002: 39-40). Examples of these type of risks are global warming, the financial crisis and terrorism. According to Beck, there is a gap between ‘quantifiable risks’, and ‘unquantifiable risks’. The first refers to the ways in which humans think and act in calculating risk and adapting their behaviour to it. The latter refers to risks that humans create and have been creating since modernisation: past decisions may slowly create unquantifiable risks over time. This means that decisions made in the past can create risks in the future that are ungovernable, uncontrollable and unknowable. Risk society does not necessarily mean that the world has become more dangerous, but that uncontrollable risks are ‘de-bounding’ (2002: 41), in order words: boundaries are disappearing on both spatial, temporal as well as social dimensions. For example, an increasing number of risks (such as global warming,

famine or insurgency) transcend national boundaries, in which case the spatial dimension is de-bounding.

Before turning to the specifics of terrorism in the current risk society, it is important to focus on risk management. Risk management of terrorism is inherently different from other forms of risk management. As Beck explains (2002: 40), the concept of risk is first and foremost related to control. Risk management is about making the ungovernable governable and the uncontrollable controllable: “As soon as we speak in terms of ‘risk’, we are talking about calculating the incalculable, colonizing the future” (Beck, 2002: 40). Risk management thus relates to making uncertainties predictable and governable, as it assumes that issues and their corresponding risks can to some extent be measured. Based on these measurements preventative policies can then be developed that aim to control these risks (De Goede, 2008: 164). Beck (2002: 44) distinguishes the threat of terrorism from ecological and financial risks. First of all, terrorism is a man-made risk rather than a risk caused by nature, for example tsunami’s or erupting volcanoes. One of the possible goals of terrorist offenders is to disrupt a controllable and governable society (Amoore & De Goede, 2008: 10). And second, - it relates to bad intentions, rather than to a more accidental accumulation of bad decisions (Beck, 2002: 44). Where some of the risks discussed by Beck have been made predictable and more governable, this is not the case for terrorism risk management. Terrorism is a high- impact phenomenon: although governments aim to make it governable, controllable and knowable, the unpredictable nature of terrorism changes the meaning of terrorism risk management as it is simply very difficult, if not impossible, to manage that risk (Amoore, 2008: 851; de Goede, 2008: 163-164; Borgers & Van Sliedregt, 2009: 187-188).

This thesis follows the argumentation laid out by Louise Amoore and Marieke de Goede (2008: 9) in their conception of the relation between risk and terrorism. The risk society as described by Beck offers an interesting framework, but Amoore and de Goede follow a more critical line of thinking approaching risk as a social construct. Risk is not only “a way in which we govern and are governed”, but is also performative – thereby creating the consequences it names (Amoore & De Goede, 2008; Aradau & Van Munster, 2007: 96). Risks are not a given within social reality, but are constructed as such – and after an issue is constructed a risk, it demands action. This conception of risk leads to a research agenda that focuses on practices that are acted out “in the name of risk management and uncertainty” (Amoore & De Goede, 2008: 9). As this thesis researches the criminalisation of preparatory acts, indeed in the name of the risk management of terrorism, this conception of the relation

between risks is a suitable conceptualisation here. Hence, the adopted approach focuses on how governments manage and control the possible consequences of these uncertain and unknowable risks (Aradau & Van Munster, 2008: 24).

The uncertain and unknowable nature of terrorism leads to measures being taken on the basis of the so-called precautionary principle. As Amoore and De Goede (2008: 9) argue, ‘risk techniques’ applied to terrorism are ways of governing and therefore, of creating possibilities for intervention and management despite the uncertain and unknowable nature of terrorism. This leads to what is here called, precaution. According to François Ewald, when an issue will cause disastrous consequences as well as is (scientifically) uncertain, precaution comes into the picture (Ewald, 2002: 283-4). Thus, the complexities inherent to terrorism making it impossible ‘to know’ do not lead to inaction, but to action based on precaution. Risk should be avoided at all costs, as it is unknown what will in reality develop into an attack or other disastrous event. Therefore, as Aradau and Van Munster (2007: 104) explain, for example surveillance increases: as it is not possible to know who forms a risk, suspect communities, or society at large, should be under surveillance in order to control the risk. Precaution, therefore, “demands that we act under scientific and causal uncertainty” (Aradau & Van Munster, 2008: 29). With terrorism, where measuring the exact risk is not possible, policy decisions are thus based on something else. According to Ewald, precautionary decisions are made by reflecting on all possible future scenarios, which are in turn based on suspicion, mistrust and fear (Ewald, 2002: 294). This for instance shows in “the targeting of Muslim communities by counter-terrorism measures” (Aradau & Van Munster, 2007: 91): it is unknown who will commit attacks, but by targeting the perceived suspect community, action is undertaken. As McCulloch and Pickering (2009: 640) argue:

Imagination animated through prejudice and stereotypes rather than objective fact or evidence that point to those facts form the basis of police and security intelligence action and even prosecution under counter- terrorism pre-crime frameworks.

This representation of disastrous consequences in the future leads to the need for action in the here and now: if nothing is undertaken, those possible scenarios might become reality. As the risk and consequences of not taking action are so big (i.e. an attack), it is better to act on the basis of incomplete evidence and knowledge than not acting at all (de Goede, 2008: 164). Ewald goes on to argue that, moreover, it is important for political institutions to

detect risks as such: if this does not happen, and an event occurs, the responsible institution will be seen as guilty (Ewald, 1994: 222). This mechanism increases the incentive of political actors and institutions to act based on precaution. According to Claudia Aradau and Rens van Munster (2008: 38) the precautionary principle creates a venue for action upon the possible chance of terrorism: this means that the discussion is not so much about whether or not the risk of terrorism can actually be controlled in the first place, but it shifts to a discussion focusing on the precautionary principle causing the rationalities necessary to ‘deal’ with the risk. This precautionary principle means for example that a lack of conclusive evidence cannot be reason not to take action (in the form of preventative measures) when the risk of a disastrous terrorist threat is faced (Borgers & Van Sliedregt, 2008: 183). It is this precautionary principle that creates the necessity to attempt predicting the future, and find ways of controlling this in order to prevent or at least minimise these consequences. In this thesis, the criminalisation and the approach thereof in court will be researched from this perspective of the increasing role of the precautionary principle in terrorism risk management. In this way, it can be researched if and how these venues for action are created.

Risk and Law Before linking the different concepts to each other and making their relation explicit, the approach to the legal aspect in this thesis needs to be discussed. This research is not a legal thesis: the cases analysed below will be analysed from the political perspective put forth by Amoore and De Goede (2008), aiming to contribute to discussions within the field of political science about law, terrorism and risk management. This thesis falls within Wouter Werner’s approach of the constitutive power of law: “law produces reality, symbolic orders, and powers” (2010: 305). Legal arguments are accepted and legitimised on the basis of deeper-lying social and symbolic structures. These structures “make certain argumentative moves look more acceptable than others” (Werner, 2010: 305). Consequently, legislation and trials integrate and reproduce some of these structures, which can be made explicit by analysis. In order to analyse law from a political science angle, Werner emphases the need to be aware of this constitutive power in relation to the International Relations subject of study regarding both the internal and external aspects of law (Werner, 2010: 305). With the internal perspective, Werner (Ibid.) refers to those actors in the legal system that approach law from a legal perspective, based on laws and legal principles. The external perspective focuses on the interpretation of a certain rule: to what extent is that a plausible interpretation? As Werner stresses (2010: 305-306), it is not possible to make a proper argument about law without

taking both of these perspectives into consideration, because of the productive power of law and its embeddedness in social and symbolic structures. This perspective on law as a constitutive force is the starting point both for the analysis of the court cases, as well as the law-making process. By researching the argumentation underlying the laws applied in the court cases, whilst approaching it from an external perspective, creates a research design considering both the internal and external perspective.

Oliver Kessler (2008: 884, see also Aradau & Van Munster, 2008: 34) argues that to understand the role of risk in legal reasoning, it is necessary to recognise the different temporalities that are at play in the legal environment. Traditionally, criminal law focused mainly on the present and the past – after all, prosecution focuses on offences committed (Kessler, 2008: 863-864). With the increasing importance of risk, governments increasingly focus on prevention, as discussed. This process shifts the temporal focus of law from the past to the future – as a part of risk management (Ibid.). Kessler takes a similar theoretical approach to risk, management and uncertainty as discussed above, but goes one step further by including law. According to Kessler (2008: 869) risk relates the present and future to each other, and enables the regulation of this relation. According to him, the way in which the future and its unknowns and threats are imagined, feeds into policies and decisions in the present (Ibid.). Beck states that risk colonises the future, and one of the ways through which this is done is through law, as Kessler argues. Kessler distinguishes between risks and norms: although norms to some extent also link the present to the future, Kessler stresses that the concept of risk is inherently more future-oriented – in line with Beck’s argument. Norms focus on the past and the present, but when risk plays a role the temporal dimension shifts to the future: risk addresses uncertainty, which causes a change in temporality in cases where risk and precaution play a role (2008: 869-870). Moreover, the future temporality allows for different rules regarding information gathering, evidence and argumentation (Kessler, 2008: 884). Therefore, Kessler argues that the entrance of risk into the legal domain signifies a different rationality in the legal system, based on this future temporality (2008: 870).

Along similar lines, Amoore explains that the norms in the legal sphere have changed due to the aim of risk management in the legal domain: traditionally, the norm is to arrive at a judgement on the basis of conclusive evidence, but Amoore argues the norm is shifting towards suspicion as enough evidence to undertake action (2008: 853-854; and e.g. Aradau & Van Munster, 2008: 39). Here, the concepts of risk management, the precautionary principle, Kessler’s temporal shift and law all come together: risk management and precaution lead to a

future-oriented perspective, and hence a change in (criminal) law occurs where conclusive evidence and the past temporality are replaced by suspicion and precaution in order to prevent future events from occurring. This is different from the traditional criminal law principle, where once harm is done, action is undertaken to address this. Being suspected of causing harm in the future becomes the norm in this world of risk management of future events and precaution (Borgers & Van Sliedregt, 2009: 172-173; Ericson, 2008: 57). Terrorism changes law in other ways as well: boundaries between war and peace get more blurry and make national law enforcement more complicated as states have to deal with non- state actors. This is another example of the spatial de-bounding Beck discusses (2002: 41): with terrorism, the enemy cannot be defined by territorial boundaries as the enemy takes different forms and is no longer confined to the form of the nation-state. Moreover, terrorism changes the rehabilitative orientation of law as well; as many terrorists have a desire to die for their ideology and the prospect of time in prison has no or much less influence on them and their decision to act violently (Ericson, 2008: 59).

These developments in the rule of law and the legal sphere, in relation to the response to terrorism, concerns a number of scholars. Amoore (2008: 853-854) points out that the norms applied are differential and unknown: citizens do not know on the basis of what norms they will be judged which affects the core principle of legal certainty. The standards that will be applied in a court case are not known to the public, due to for example the confidential nature of documents and data that suspicion or evidence is based upon. Hence, differential norms are applied within law in order to control a risk. Richard Ericson (2008: 67) states that the precautionary principle creates a reality of ‘laws against laws’, where new laws are created that undermine the established legal principles, standards and procedures. Therefore, it undermines democratic institutions and the rule of law. Legal principles ensuring that criminalisation is based on a specified criminal act and that these specifications are known are diminishing in light of the ‘law against law principle’, where criminalisation is justified on the grounds of guaranteeing (often national) security. Finally, these developments can have a potentially harmful effect on the presumption of innocence and therefore undermine the right to a fair trial (McCulloch & Pickering, 2009: 632). In short, the main fears concerning the consequences of the precautionary principle in criminal law with regards to terrorism focus on the consequences for legal certainty, the undermining of traditional legal principles and therefore democratic institutions and the rule of law.

In sum, the risk management of terrorism – based on uncertainty with the aim of controlling uncertainties – inherently focuses on the future. This precautionary principle, aiming to control and prevent, has a problematic relation with (criminal) law. Here, the precautionary principle leads to criminal law being used to try to prevent criminal offences from happening in the future, and therefore preventing an act to develop as such. Because of the imagined potentially disastrous consequences of terrorism, preventing attacks becomes an urgent objective for governments. In this thesis, these related concepts provide a framework to approach and analyse the legislation and relating terrorism court cases: are these acts criminalised using a precautionary principle? And is the same precautionary principle employed in court, either on the side of the public prosecution or the judges? This will be further operationalised in Chapter 3.

Law-making & Preparatory Acts The role of criminalisation and criminal law as a part of counter-terrorism measures gained prominence after the 9/11 attacks in the United States. As Matthias Borgers and Elies van Sliedregt show, the Netherlands developed a specific ‘Dutch approach’ to counter- terrorism in the 1970s that consisted of negotiating and open dialogue, but since 2001 this approach has diminished (2009: 175). Since this thesis focuses on the case of the Netherlands, preparatory acts will be discussed as defined within Dutch criminal law.

Law-making in the Netherlands Law is based on deeper-lying social structures (Werner, 2010: 305-306). Laws do not stand on their own: the argumentation and the legitimacy is provided by the broader context. It is exactly this that makes it important to look not solely at court cases to fully grasp the developments in the criminalisation of preparatory acts. By incorporating the law-making process in the analysis, the broader context that underlies the trials will also be made visible. Another reason for studying the law-making process of counter-terrorism laws is that is has been a neglected topic, while it is an important part to study in order to understand the overall shifts in the legal framework. As Andrew Neal (2012) points out, the legislative power – analysed from a parliamentary perspective – plays a dual role. On the one hand, it is powerful and central in legitimising legislation that is symbolic and often repressive as a response to a terrorist attack. On the other hand, it is the same parliament that is critical about the law and raises questions and concerns (Neal, 2012: 262-265). Although Neal works with a framework of exceptionalism versus normalisation – which is not a part of this thesis – his focus on the

legislative process underlines the importance of analysing the law-making process. Neal’s work on the United Kingdom has informed this thesis to the extent that his research shows the relevance of incorporating the law-making process into research on counter-terrorism legislation.

The Dutch democratic institutional structure is shaped by the principle of the trias politica, also known as the separation of powers. These powers are, as Montesquieu historically outlined, the legislative power, the executive power and the judiciary power. In the Netherlands, the legislative power lies with both parliament (Tweede Kamer) and the Senate (Eerste Kamer), the executive power lies with the government – which is also part of the legislative power – and the judicial power naturally lies with the courts and judges (website Parlement & Politiek, a). Parliament has the so-called ‘right of initiative’ to propose legislation, but in practice it is mainly the government that initiates laws. This means that the separation of powers is slightly blurred (website Parlement & Politiek, a). This is only relevant to this thesis to the extent that is important to understand the Dutch institutional structure. Once the government proposes a law, it is discussed in parliament and thereafter parliamentarians vote. Apart from the proposed legislation, a so-called ‘explanatory note’ is added to provide further insight into the argumentation behind the proposed legislation. If parliament votes in favour of the proposal, the legislation is moved forward to the Senate, where it undergoes another round of scrutiny before the final vote. Once a majority in the Senate votes in favour, the law can be published and implemented (website Parlement & Politiek, b). There are multiple parts that are of interest for this thesis: the legislation, but also the parliamentary debate and the explanatory note can provide insight in the underlying social and symbolic constructions of these laws.

Preparatory acts Preparatory acts of terrorism are those acts that (could) lead to a terrorist offence. According to McCulloch and Pickering, they mainly refer to offences that “do not require any specific, identified acts to be planned or attempted” (2009: 633) – for example by criminalising membership of a terrorist organisation or the association with these organisations or individuals. Preparatory acts are thus seen here as acts that are criminalised based on the reasoning that they could lead to a terrorist attack – and include acts such as membership of a terrorist organisation, but also recruitment, financing and facilitating terrorism. Criminalising preparatory acts is not new within criminal law – after all, one can

also be convicted for other concrete plans to commit a crime. The difference is that this thesis focuses on the introduction of what in Dutch law is defined as ‘terrorist intent’.

Terrorist intent is a central notion in the legislation regarding terrorist activities: when it is proven that an offence has been committed with this terrorist intent, the maximum sentence is higher than if the same act was committed as a ‘regular’ criminal activity. This terrorist intent is defined as follows:

Terrorist intent refers to the intent to spread anxiety amongst the population or a part of the population of a country, or to unlawfully force a government or international organisation to do something, to not do something or to tolerate something, or to disrupt or destroy the fundamental political, constitutional, economic or social structures of a country or international organisation (Article 83a).1

The importance of this part of Dutch legislation is that since the Dutch Terrorism Act (Wet terroristische misdrijven), introduced in 2004, higher maximum sentences can be given for a range of crimes on the grounds that they were committed with this terrorist intent. Increased sentences can be relevant for offences such as manslaughter, aggravated assault, hijacking or kidnapping (website NCTV, a). This development is not just confined to the Dutch context, as many similar terrorism laws post-9/11 occurred worldwide (McCulloch & Pickering, 2009: 631). It is the introduction of this terrorist intent Article that paved the way for the criminalisation of preparatory acts. According to H.G. van der Wilt (2003) the way in which terrorist intent is formulated is too close to a definition of a motive, instead of intent. Intent, according to Van der Wilt, refers to the direct goal to which an act is committed (for example murdering a person), whereas a motive refers to the urge to satisfy a certain need that pushes an individual to act (for example the wish to eliminate a competitor in drug war) (Van der Wilt, 2003: 68). By introducing this notion of intent into law, a certain precision needed within the legal framework – to have evidence proving someone committed an offence with a specific intent – is at risk of getting lost because judging on the basis of a motive is a more speculative endeavour (Van der Wilt, 2003: 74-78). Borgers and van Sliedregt (2009: 181-182) refer to this as a ‘subjective criminalisation model’, as it criminalises the intent to which an offence has been committed rather than criminalising “acts

1 All Dutch laws and quotes have been translated by Jip Geenen.

of endangerment”. That is why according to them, the introduction of terrorist intent into law is problematic, and inherently shows signs of what has been previously described as a norm shift toward suspicion, leading to legal uncertainty.

There are a number of laws that discuss preparatory acts: the financing of terrorism (Article 42 Sr), but also the recruiting for – (Article 134 Sr and Article 205 Sr) and facilitating of terrorism (Article 83b Sr); membership of a terrorist organisation (Article 140a Sr) and participating or collaborating in training for terrorism activities (Article 134a Sr). Moreover, conspiracy to committing terrorist offences is criminalised (Article 421). Conspiracy is defined as “two or more persons having agreed to commit a terrorist offence”. This agreement does not have to be acted upon for it to be illegal (website NCTV, a). In Dutch criminal law, terrorism financing is defined as follows:

he whom himself or another purposely provides goods or intelligence or purposely collects objects, acquires or has available or acquires for someone else, who wholly or partly, immediately or timely, serve to offer financial support to commit a terrorist offence or a crime preparing of facilitating a terrorist offence (Article 421).

Regarding facilitating and recruiting terrorist offences, two Articles are of main importance. Article 134, note 1 focuses on spreading documents that recruit individuals for any illegal activity:

He whom distributes, spreads, or exhibits a writing or image in which it is offered to collect intelligence, opportunities or means to commit any offence, or to distribute, spread or exhibit, or have in stock, when he knows or has reasons to suspect that the writing or image includes this kind of offer, will receive a punishment of a maximum of three months or a fine of the second category.

Article 205 focuses more specifically on recruiting for armed conflicts or forces, which applies to the recruitment of individuals to join the conflict in Syria and Iraq to fight:

He whom, without permission of the King, recruits someone for foreign armed forces or armed conflict, will receive a punishment of a maximum of four years of incarceration or a fine of the fifth category.

The Dutch Counter-Terrorism Coordinator specifies that recruitment does not have to be successful for it to be deemed an offence (website NCTV, a) – which is in line with the definition of preparatory acts by McCulloch and Pickering (2009). Article 140 Sr describes membership of any criminal organisations for which the maximum sentence is six years. Article 140a Sr describes the criminalisation of membership of a criminal organisation with terrorist intent, where the maximum sentence is significantly higher, namely fifteen years. This is a good example of the increased sentencing for offences committed with terrorist intent:

1) Participation in an organisation with the intent to commit terrorist offences will be sentenced with imprisonment of a maximum of fifteen years or a fine of the fifth category.

2) Founders, leaders or board members will be sentenced with lifelong imprisonment or temporary imprisonment of a maximum of thirty years or a fine of the fifth category.

3) With participation as described in the first part is also understood financing or any other material support, as well as the fundraising of money or persons for the good of the described organisation.

The context of these laws will be discussed more elaborately in Chapter 4 before presenting the findings of the analysis of the law-making process.

Chapter 3: Research Design

In this chapter the research design of the thesis will be outlined. The research conducted here is of qualitative nature, which mainly shows in the critical/constructivist approach that is taken. The starting point of discourse analysis is the assumption that language constructs social reality, thus making this research from an epistemological and ontological perspective, more qualitative in nature (Bryman, 2015: 375-376). The chapter starts by outlining the data gathering process and the case selection. Next, a discussion of discourse analysis will follow, including the operationalisation of the concepts discussed in Chapter 2. Discourse analysis is a central feature of the research design here, as it used for the analysis of both the law-making process as well as the court cases. Thirdly, the use of semi- structured interviews will be discussed. Throughout the chapter, some of the issues and pitfalls with the research design will be touched upon, but at the end of the chapter there is a section dedicated to the reflection on the research decisions made.

Data gathering and Case Selection

Data Gathering

The law-making process was analysed using documents accessible online, such as parliamentary debates and explanatory notes on the website of the Dutch parliament (tweedekamer.nl). The same applies for the criminal law analysis, as the penalty book can be found online (strafboek.nl). For the analysis of the court cases, the data gathering process was more complicated: all verdicts can be found online (rechtspraak.nl), but the court proceedings are not publicly accessible. An attempt was made to get access to the court reports through contacts with the public prosecution, but it was unsuccessful. Access to these documents needs to be approved by the highest authorities, which was not possible in the time frame of this thesis. Due to the lack of the court reports, a larger number of cases was included and interviews were conducted with relevant actors in these court cases in order to get more insight into the court proceedings.

Case Selection

As specified in the research question, the focus is on the Netherlands. Court cases with a similar focus have taken place in other countries as well, but due to reasons of language and access to stakeholders, the focus here is on the Dutch cases. Moreover, as Neumann (2008: 63) states, having cultural competence is very useful in research, as the

researcher knows not only the language but also the context, organisations and institutions that could be of importance. Having a wider and deeper understanding of the status quo makes it easier to do research. Hence, the choice for the Netherlands is a logical decision that will deepen the understanding of the data and therefore lead to richer results. Furthermore, the Netherlands is an interesting case study due to the recent court cases that have taken place in the country. With the increasing number of foreign fighters (NOS, 2016a), governmental institutions are trying to find ways to counter and address this problem. This shows in an extensive government plan to counter jihadism that was put forth in 2014, the Comprehensive Approach to Jihadism (see below), of which “risk reduction of jihadists” is one of the central objectives (website NCTV, b). As this is a topic of central concern in the Netherlands, it is both a relevant and interesting country for this thesis.

Secondly, the parliamentary debates, government documents and legislation that are analysed are purposively selected (Bryman, 2015: 408). This means that the documents selected are relevant to the research question. Purposive sampling has implications for the external validity of the findings, as it affects to what extent the findings and conclusions can be generalised (Bryman, 2015: 408). But because only legislation focusing on preparatory acts is relevant in order to answer the research question, this is less of a concern in this thesis. For the analysis, in line with the conceptualisation of preparatory acts, a number of laws are of main importance, such as the Dutch Terrorism Act and the legislation on the criminalisation of financing of terrorism. Furthermore, the parliamentary debates that took place to discuss this proposed legislation are the logical parliamentary debates to analyse in order to outline the discourse surrounding this legislation – and therefore to answer the first part of the research question. This leads to the following list of documents:

Terrorism Act

- Terrorism Act: Wet terroristische misdrijven. Staatsblad van het Koninkrijk der Nederlanden. 24 June 2004. - Explanatory statement for the Terrorism Act. Memorie van toelichting voor Wet Terroristische Misdrijven. 28463 nr. 3. 11 July 2002. - Parliamentary debate regarding the Terrorism Act: Handelingen Tweede Kamer der Staten-Generaal. 2 December 2003, 4 December 2003 and 9 December 2003. - Explanatory note regarding criminalising recruitment and conspiracy for jihad: Wijziging en aanvulling van het Wetboek van Strafrecht en enige andere wetten in

verband met terroristische misdrijven (Wet terroristische misdrijven). 28463 nr. 8. 20 August 2003. - Debate on terrorist recruitment: Handelingen Tweede Kamer der Staten-Generaal. 17 December 2002. - Ministerial response to commission report: 28463 nr. 10. 23 September 2003.

Criminalisation participation/contribution to terrorism training

- Legislation criminalising participation and/or contribution to terrorism training. Staatsblad van het Koninkrijk der Nederlanden 245. 12 June 2009. - Explanatory statement for criminalising the participation and/or contribution to terrorism training. Memorie van toelichting. 31386. - Parliamentary debate regarding the proposed legislation: Handelingen Tweede Kamer der Staten-Generaal. 14 January 2009, 20 January 2009 and 3 February 2009.

Financing of terrorism

- Legislation criminalising the financing of terrorism: Staatsblad van het Koninkrijk der Nederlanden 292. 10 July 2013. - Explanatory statement for criminalising the financing of terrorism. Memorie van toelichting. 33478. - Parliamentary commission report: 33478 nr. 5. 5 February 2013. - Ministerial response to commission report: 33478 nr. 6. 12 April 2013.

Finally, the selection of the four court cases has been made a purposive basis as well, focusing on two elements. The first element is the selected timeframe. The Comprehensive Approach to Jihadism was used as the starting point of the timeframe, because the publication of this policy approach showed an increased emphasis of the Dutch government on addressing potential and returning foreign fighters. Specifically, it emphasised that the public prosecution should intensify its work on this topic, for example by increasing resources and capacities in order to address the issue appropriately (Ministerie van Veiligheid en Justitie, 2014). Because the Comprehensive Approach to Jihadism shows the urgency felt in the Netherlands to deal with the issues of foreign fighters and Jihadism, this has been used as the starting point. The end point is February 2016, due to the time limits for doing the research for this thesis. In February 2016, two relevant court cases came to an end. The second criterion pertaining to the court cases within this timeframe was the relevance of the

legislation involved: it is important that the legislation outlined above plays a role in the cases. Moreover, the thesis specifically does not focus on foreign fighters, thus excluding for instance people who had been arrested during their travels to Syria, or cases focusing on returned foreign fighters. This selection criterion makes it possible to focus solely on preparatory acts such as the recruiting, financing, facilitating of terrorism. Including foreign fighters would blur the line of the preparatory acts, especially because in a number of these cases it is unclear to what extent actual terrorist attacks have been committed in the conflict area. Naturally, the four court cases are related to the foreign fighter phenomenon and to the conflict in Syria and Iraq: for instance, in the Context case three people are (among other allegations) prosecuted for fighting in the conflict area. This will thus be left out of the analysis.

This has led to the selection of the following four court cases. The case of Shukri F., who was acquitted of her allegations. She was prosecuted for recruiting people to join the armed conflict in Syria. F. was acquitted of all allegations; firstly, on the grounds that women do not participate in the fighting, hence it is not recruiting for terrorist purposes, and secondly, because there was not enough evidence (website Rechtspraak, 2014). The second case is the so-called Context case. Nine individuals were prosecuted and convicted of membership of a criminal organisation with terrorist intent. The Context case also focused on other allegations, such as abetting, recruiting and facilitating for the armed conflict in Syria (website Rechtspraak, 2015). Adil C., the third court case, was prosecuted and sentenced to one-year imprisonment for terrorism financing. He sent one thousand euros to an individual who was fighting in Syria, and it was argued that this money facilitated terrorism (website Rechtspraak, 2016a). Finally, Salim S. was convicted for recruiting a minor in asylum-seeker housing (website Rechtspraak, 2016b). More background information on these cases will be offered in Chapter 5, before presenting the findings of the analysis.

Discourse analysis: operationalisation Discourse analysis is a central methodological approach used in this thesis: the study of language – written, spoken or any other form – to understand the political, social and cultural dynamics that it constitutes (Mutlu and Salter, 2013: 113). In order to research how preparatory acts are criminalised in the Netherlands, and find the underlying argumentation thereof, documents will be analysed on the basis of the operationalisation of concepts discussed in the Conceptual Framework.

As discourse analysis offers a way to uncover not only the apparent first-layer use of words, sentences and paragraphs, but also deeper meanings, constructs and discourses, it provides a useful approach in trying to establish and uncover the argumentation underlying a number of laws and the process of criminalisation. A discourse, in the Foucauldian tradition, “is a linguistic practice that puts into play sets of rules and procedures for the formation of objects, speakers, and themes” (Shapiro, 1990: 330). Language is studied in order to see what themes, topics and issues are discussed, from a perspective that words have action and are performative (Gee, 2014: 8; Mutlu and Salter, 2013: 113). With this methodological approach, it is possible to research what language is spoken to order the world and how this language is used – in this case for the criminalisation of preparatory acts – and therefore outline patterns in representations and arguments (Neumann, 2008: 62-63). As Neumann concludes, discourse analysis is useful for studying where the world stands with regard to certain political/social issues, and especially how this situation arose (2008: 76). This means that discourse analysis can show that the current social reality is not a given, but has been constructed this way, amongst others, through language. Law, and the law-making process are part of this, as was shown by discussing the productive power of language (Werner, 2010: 305-306). Therefore, approaching the research question using discourse analysis is a suitable approach aiming to establish a deeper understanding of the way preparatory acts are criminalised and approached.

Through discourse analysis, the place of risk within the social and political world can be studied, as well as the shift to the future temporal space. Is this part of the language used, and if so, in what way? Language is an essential element of the law-making process, as law is put into language, and discussed in parliament. The same applies to the court cases, because different actors frame and produce their arguments based on those laws. Approaching this process through discourse analysis enables us to see how the discourse during the law- making process takes place. When analysing language and discourse, it is important to be aware of the fact that texts are spoken or written for an audience, with a specific purpose (Neumann, 2008: 64). As the analysis here focuses on parliamentary debates and other highly political documents, it is important to be aware of the political intentions that might play a role here: some parliamentarians are part of the coalition parties in the Netherlands for example, while others form the opposition. Additionally, all parties have their own political goals. Furthermore, the documents underlying the proposed legislation have been written with the purpose of convincing audiences (not only parliament, but other legislative

institutions as well) of its internal legal legitimacy as well as the necessity of the proposal. Finally, in court the actors involved have their own purpose as well. When the verdict is delivered, this can – especially in cases of Jihadism or terrorism – be under scrutiny of the media, politics and society (De Graaf, 2011: 2). This does not change the method to the extent that this is always the case with language and discourse analysis. It does mean that the researcher was aware of these audiences and different purposes of documents throughout the analysis. Moreover, the researcher aimed to be reflexive during the analysis and the decisions made in order to avoid misinterpretations of texts – this is an inherent concern to discourse analysis (Mutlu & Salter, 2013: 18). Some of the potential pitfalls that can occur because of this have also been countered because of the interviews conducted. This made it possible to discuss the topic with actors with different perspectives and audiences.

Since criminalisation within the conceptual framework of risk management and the precautionary principle is the focus here, it is important to use these elements in the analysis. This leads the following elements to be included in the discourse analysis:

- Regarding risk management, mentions of risk and threats are elements that indicate the portrayal of an issue as a risk. Moreover, this means that proposals made to control, manage or address this risk are elements indicating risk management. - Following Ewald (2002) and De Goede (2008), precaution will be operationalised by discussing terrorism as having disastrous consequences, as well as an unknowable and uncertain nature. If these arguments are used to justify action, it can be said that the precautionary principle plays a role. When future scenarios are implied that could occur if no action is undertaken, this relates to the precautionary principle as well: this argument is based on the idea that it is unknown what will happen, but action is needed. Here, a venue for action is created. - As mentioned above, the future plays a central role in the precautionary principle, but it should also be specifically operationalised with regards to law. For this, Kessler (2008) is followed: whenever mention is made of the criminalisation of preparatory acts, is the temporal shift in criminal law discussed, explicitly or implicitly? - On a more critical note it is relevant to analyse whether any documents or language is devoted to the potentially negative consequences of the role of the precautionary principle in criminal law. Elements that indicate this are – following the literature – questions or statements made relating to the consequences for the rule of law. This also includes what Ericson (2008) refers to as laws against laws: is the specification

of the criminalised act criticised? Amoore’s argument on the norm shift from conclusive evidence to suspicion is also part of this: on what grounds is intervention and prosecution allowed? - The way in which any criticism is addressed and/or countered by the actors involved, is relevant as well. Ericson (2008) and McCulloch and Pickering (2009) state that the introduction of the precautionary principle in the criminal law is justified in light of guaranteeing national security.

In order to fully grasp how the argumentation underlying the legislation interacts with the use and implementation of the legislation in court, patterns and themes will be outlined in the law-making process through the discourse analysis. Therefore, the research design leaves room for findings in the first part of the analysis to be applied in the second part of the analysis of the court cases.

Interviews Finally, in order to deepen the understanding of the court cases, four interviews were conducted with relevant stakeholders – two public prosecutors and two defence lawyers. This was especially useful in light of the inaccessibility of the court proceedings, as the interviews provided insight into what happened inside the courtroom. Therefore, the interviews offer a way of triangulation of the data found in the analysed verdicts (Bryman, 2015: 386). Discussing the trials with just governmental actors such as the public prosecution, although they are the main focus, could give a biased interpretation of the court proceedings. Hence, two interviews were also conducted with defence lawyers. The interviewees have been selected purposively, because of their relation to the cases selected. The interviewees have their own objectives and perspectives, especially because some cases are awaiting appeal. Naturally, the defence lawyers are more critical of the public prosecution and their strategy, and will question their behaviour more than the public prosecutors themselves. The public prosecutors are valuable to speak to as they know the objectives of the public prosecution well. Moreover, they worked on these cases and are therefore valuable sources of information.

The interviews have a semi-structured nature (Bryman, 2015: 468-469), meaning that the following list of topics was used as a guide throughout the interviews, while leaving room for the interviewees’ own input. Furthermore, elements such as risk management and prevention were purposively left out of the topic list, to prevent steering the answers in a

certain direction. This flexibility provides a venue to understand the social reality of the interviewee (Bryman, 2015: 468-469). The topic list used for the interviews with the lawyers is outlined below:

- What does the argumentation of the public prosecution look like? What is the importance of these cases to them? - What does the argumentation of the judges look like? Does it adopt the argumentation of the public prosecution? - What did your defence focus on? - What are the differences between terrorism cases and regular criminal law cases?

The topic list for the interviews with the public prosecutors is as follows:

- What are the main objectives of the public prosecution in prosecuting these preparatory acts? - What does the argumentation of the judges look like? Does it adopt the argumentation of the public prosecution? - What are strategies used to achieve this? - To what extent is criminal law a successful tool in addressing terrorism activities?

Although only four interviews were conducted due to time constraints, all interviewees played important roles during one or more of the analysed court cases. Therefore, it is believed that they could contribute valuable information for this thesis. The interviews focus on the same elements as outlined in the operationalisation section.

Reflection This section will reflect on the methodological decisions that were made. As was already touched upon, the external validity – which focuses on the generalisability of the research – is low (Bryman, 2015: 399). Data has been selected purposively to ensure that they are relevant to this thesis, and therefore cannot be said to be representative of a larger group or population. Moreover, the fact that the research solely focuses on the Netherlands also affects the external validity (Bryman, 2015: 399): the law-making processes and actual legislation are different in other countries; hence it is not possible to translate the results directly across borders without doing further research. The findings can in a later stage be used when researching other countries, in order to make fruitful comparisons or to go into further detail of the conclusions drawn here. For now, focusing on one country is relevant to

gain a deeper understanding of the developments taking place in this one case, especially with the inclusion of the law-making process which has been an understudied aspect of counter-terrorism law and trials in general.

Based on the assumption that political primacy lies with the parliament and the documents that support the proposed legislation, the analysis of the law-making process focuses solely on the parliamentary discussion of the proposed legislation, leaving out other parts of the process. Hence, this is not so much a weakness, but more a logical decision for the purpose of this thesis. Furthermore, the timeframe selected is rather short, due to the space and time provided for this thesis. Broadening the timeframe could have been interesting to create a fuller analysis of potential changes over time.

An issue in the data gathering has been the inaccessibility of the court proceedings. Some essential data are thus unfortunately missing in the analysis. In order to address this issue, four interviews were conducted to discuss the court proceedings with different actors. Especially by talking to actors from different perspectives, this offered a way of still gathering valuable data on the court proceedings (Maxwell, 2013: 128). Due to time constraints, no more than four interviews were conducted. This is not a representative amount of interviews, but, because of the involvement of the interviewees in the analysed cases and their different positions, the data gathered are still valid – especially considering their experience and expertise on these matters. This was a useful way of countering the issue of the inaccessible data as well as the numbers of interviews that were conducted.

One of the major strengths of the research decisions made lies with the internal validity. Focusing solely on the Netherlands, and on small number of cases, makes it possible to gain a deep understanding. Moreover, the interviews make it possible to triangulate data, meaning that the findings are not based solely on one data source. As discussed above, attention has also been paid to the selection of interviewees by ensuring the data gathered there can be triangulated by talking to people with, expectedly, different perspectives (Bryman, 2015: 386). In this respect, it is important to mention that I knew one of the interviewed prosecutors through my work. Because of the professional relation that was established there, this did not effect that interview to a great extent – although I paid attention to it during the interview as well as in the analysis, making sure I had enough distance and analysed his statements as objective as possible (Mutlu & Salter, 2013: 118).

Chapter 4: the Law-making Process For this analysis, a deliberate choice was made to focus on parliament throughout the law-making process due to the political primacy that lies with parliament in the Netherlands. As a consequence, the review carried out by other governmental institutions such as the Senate are left out. The focus is on the construction and argumentation of the laws, which is exactly what is discussed in parliament. The findings presented below focus first on the Terrorism Act of 2004, which was the biggest step taken in the Netherlands in counter- terrorism legislation to date. Next, legislation regarding both training and financing of terrorism will be discussed. It is concluded that a strong emphasis on precaution underlies the discourse both in the government documents and parliamentary debates concerning the criminalisation of preparatory acts. Moreover, the findings shows that although concerns have been expressed by both parliamentarians and government officials, the changes in criminal law are accepted and legitimised in light of the urgent need to act bearing in mind the potentially disastrous consequences of terrorism. Hence, it can be stated that terrorism risk management and the precautionary principle play a big role in the criminalisation of preparatory acts.

Terrorism Act The Terrorism Act was the legal response to the framework decision of the European Union on terrorist offences of 2002 (European Council, 2002). This framework decision was in turn a response to the 9/11 attacks in the United States and was implemented in the Netherlands in 2004 through the adoption of the Terrorism Act. The law-making process took place from July 2002 until June 2004. In the Terrorism Act, terrorism offences were criminalised autonomously, in other words, they became criminalised in separate legal Articles and were thus no longer inherently tied to other criminal offences. Moreover, the adoption of the Terrorism Act meant that crimes committed with terrorist intent – whether it be preparatory, facilitating or an actual terrorist attack – received a higher maximum sentence than offences committed with a criminal intent. A wide range of offences is included, such as but not limited to murder, a bomb attack or hijacking a plane (website Eerste Kamer, 28.463). Terrorist intent and the problematic relation between criminal law and terrorist intent have been discussed in the Conceptual Framework (Chapter 2).

This Terrorism Act was a big step in the Dutch trajectory of addressing terrorism through criminal law for a number of reasons. For instance, it included the introduction of the

notion of terrorist intent. As discussed in the Conceptual Framework (Chapter 2), this is problematic due to the subjective nature of the intent, the introduction of motives into criminal law, and the problematic relation with the legal principle of legal certainty. Furthermore, the notion of terrorist intent represented a shift away from the legal norm of conclusive evidence towards suspicion.

Also, the criminalisation of conspiracy and recruitment led to a profound change in Dutch criminal law. These two offences were added to the proposed legislation in a later stage – the original proposed legislation and explanatory note date from July 2002, whilst the conspiracy and recruiting laws were added in August 2003. Three opposition parties, PvdA, D66 and GroenLinks, opposed the inclusion of these new offences at that stage, as they argued the timing surpassed some essential steps of the review process as the legislation was already at the stage of parliamentary review. The criminalisation of conspiracy to commit an offence with terrorist intent is the strongest example of the profound change caused by the Terrorism Act: Dutch criminal law is – in contrast to for example the UK and the US – reluctant when it comes to criminalising conspiracy of offences. Before the implementation of the Terrorism Act, only highly severe criminal acts against the state or offences against state duties and rights had the notion of conspiracy criminalised in relation to the criminal act (Tweede Kamer, 2003a: 4).

Partly, the argumentation used by the government was based on the fact that implementing this legislation was required by the European Union framework decision. At the same time, the potentially disastrous consequences of terrorism were also continuously underlined – such as causing fear among the population (Tweede Kamer, 2002a: 5), threatening democratic institutions (Tweede Kamer, 2002a: 9) or the Dutch state as a whole (ibid.) – thus legitimatising and justifying the legislation. This line of argument was applied especially to preparatory acts, where increasing the maximum sentence of a preparatory act committed with terrorist intent was legitimised by arguing that if intervention is not possible before the actual terrorist act is committed, this could have disastrous consequences. Moreover, because the inclusion of conspiracy was such a big step in Dutch criminal law and before the adoption of the Terrorism Act, conspiracy was only criminalised in acts threatening the state, this shows the Dutch government views terrorism offences as a highly severe offence threatening the state, democracy and society as a whole (Tweede Kamer, 2003a: 4-5). This corresponds heavily with the precautionary principle: the proposed legislation is justified by pointing to what could happen in the future if steps are not taken –

specifically in light of the consequences for national security, something that follows the arguments put forth by McCulloch and Pickering (2009).

In the 2003 parliamentary debates regarding the Terrorism Act, then-Minister of Justice Piet-Hein Donner stated that he, as well as the government, saw terrorism as “the big threat of current times”, while at the same time acknowledging other threats such as climate change that needed to be addressed (Tweede Kamer, 2003b: 33-2333). All speakers – on behalf of their respective parties – opened their statement with acknowledging the severity of terrorism and the threat this posed to the Netherlands and therefore, the need to act (Tweede Kamer, 2003c). For instance, Jan de Wit from the Socialist Party (SP) stated that “terrorism is a danger for the Netherlands and the world as a whole and therefore the SP underlines the need to discuss and address this threat” (Tweede Kamer, 2003c: 31-2201). Therefore, it can be said that the whole of parliament underlined the argument that terrorism posed a high risk and demanded a response, once again specifically referring to Dutch national security.

Interestingly, it was simultaneously acknowledged that criminal law and sentencing terrorist acts will not erase the threat or provide the solution to terrorism. Several opposition parties argued along these lines: for example, Nebahat Albayrak (PvdA) stated there was a need for regulations and constant flexibility to address terrorism. Government officials such as Minister Donner made similar arguments: he opened his address stating this specific law should be seen as an important, but only a first step in the approach to terrorism. Donner made clear that the government does not believe that this legislation alone would prevent terrorist attacks, as a more holistic approach is needed to do so (Tweede Kamer, 2003b: 33- 2333). Despite the fact that in this thesis the focus is not on the Dutch counter-terrorism approach as a whole, this is an interesting statement as the Minister underlined that criminal law and sentencing are not perceived to be the solution to terrorism. At the same time, the main argument was that more steps are needed – of which this legislation is only a first step and that criminalising is of importance (Tweede Kamer, 2003b: 33-2333 – 33-2334). Thus, the emphasis placed on the role of criminal law as an instrument in the fight against terrorism was nuanced, but not when it comes to early intervention.

Although parliament stressed the need for a holistic counter-terrorism approach, the law was still seen – by both government and opposition parties – as highly necessary: not only could inaction lead to disastrous consequences, but the legislation could also provide ways to prevent attacks through early intervention. This was the main argumentation

underlying the focus on the criminalisation of preparatory acts, according to Minister Donner (Tweede Kamer, 2003b: 33-2334). This early intervention would not also lead to new venues for sentencing, as gaining conclusive evidence is often difficult, but disruption of terrorist plots was mentioned as an important goal by itself (Tweede Kamer, 2003b: 33-23339). The criminalisation of conspiracy and other preparatory acts contribute to the venues for action in an early stage, of preventing an attack. Donner stated that these Acts were proposed to criminalise certain actions specifically in light of prevention (Tweede Kamer, 2003b: ; 33- 2348). Albayrak (who was critical of criminalising conspiracy, see below) argued that attacks should be prevented and services should not have to wait until they have a conclusive case before they can act: “When there is a threat, it is of most importance to erase that threat” (Tweede Kamer, 2003c: 31-2212). Parliamentarians raised questions and concerns about the consequences of this legislation, for instance when it comes to the freedom of speech, yet at the same time they also agreed with the aim of early intervention. Disrupting and intervening on the grounds that potential terrorist attacks are prevented, even if it does not lead to sentencing because there is no conclusive evidence, is a clear example of multiple elements described in the Research Design. For one, this is based on the precautionary principle as it is accepted that there is uncertainty but action is still needed in light of potential future consequences. Second, it includes an element of what Ericson calls laws against laws, also discussed by Amoore and Ewald: when conclusive evidence is no longer the norm to intervene, what is? This is where the shift to suspicion as a norm could start playing a role.

Finally, an important element throughout the Terrorism Act parliamentary debates, is the justification on the grounds of guaranteeing national security. For example, in a parliamentary debate discussing the recruiting of terrorism before recruiting was added to the proposed legislation, Minister Donner stated the following:

With terrorist organisations it is about matters in which prevention is of immensely more importance than in regular criminal law, where you respond to what has happened. With terrorism the primary goal is prevention. That alone causes a shift in criminal law. It is that shift that we are taking on this issue; Parliament has received the proposed legislation regarding this (Tweede Kamer, 2002b: 34-2597).

This argumentation relies heavily on the precautionary principle: the Minister clearly states prevention is the main goal of the legislation. Additionally, the Minister recognised the

shift in criminal law that was caused by this legislation. This shift directly relates to Kessler’s (2008) argument about changing temporalities: the focus within criminal law shifts to the future, instead of a focus on the past and present. The goal being prevention, it becomes necessary to think about what certain acts and developments can lead to – what scenarios can play out. Hence, criminal law no longer adheres to what someone has done, but becomes a preventative tool focusing on the future.

Another example of this is Minister Donner’s explanation of the reasoning behind criminalising conspiracy: “We rather not wait until the coup starts. No, we want to intervene when the plans are being made to do so” (Tweede Kamer, 2003b: 2348). The argument made here clearly displays multiple facets of terrorism risk management in the form of the precautionary principle at work. Not only is the argument based on the risk and potential consequences of inaction, it also builds on the precautionary principle as a way of justifying this law. Additionally, it once again shows the shift in temporality of criminal law with regards to terrorism, as according to the Minister waiting until something happens is not an option. This implies that the future is taken into consideration as a starting point for legal reasoning. Finally, the acknowledgment that waiting is not an option relates to the need for political institutions to act – as detecting and mitigating these types of risks is their responsibility (Ewald, 1994; Aradau & Van Munster, 2008: 38). This shows that political pressure to act indeed also plays a role.

Despite this present political pressure to act, parliamentarians did express criticism on the proposed legislation. Boris Dittrich (D66) opened his statement with the notion that the true solution to terrorism cannot be found in criminal law and that the proposed legislation undermines some essential legal principles. Dittrich gave an example about the criminalisation of conspiracy: not only would it seriously impact the principle of legal certainty (which relates to the laws against laws), it comes – according to D66 – too close to criminalising ideas and beliefs (Tweede Kamer, 2003c: 31-2222). This was mentioned by other parliamentarians as well, such as De Wit (ibid.: 31-2203), Albayrak (ibid.: 31-2213) and Marijke Vos from GroenLinks (ibid. 31-2219). Overall, it was argued that this criminalisation could become a slippery slope leading to criminalising extremist ideas, which would inflict on freedom of speech and religion. Despite this criticism and an amendment proposed by Albayrak, the Terrorism Act was not changed and conspiracy eventually was criminalised due to a majority in parliament voting in favour of the legislation.

Other topics that were widely discussed in the debates – but that are of lesser importance here – focus on whether terrorist intent includes all forms of terrorism, which it does. Questions were also raised regarding the use of intelligence from intelligence services in court. Thirdly, an extensive debate took place on whether recruitment for a side in a conflict that is perceived as ‘the good side’ (e.g. the conflict involving the ANP in South Africa) were also criminalised – which was the case. Finally, there was some debate regarding facilitating: are individuals facilitating terrorism if they are not aware of the terrorist intent of others? In this case, individuals can only be prosecuted if they are aware of the terrorist intent.

Terrorism Training In 2008, the Dutch government proposed a number of laws and amendments on a wide variety of different topics under one piece of legislation: the government argued that these topics had all been discussed in parliament before, where a majority had already agreed to implement changes. Therefore, the laws were combined into one piece (Tweede Kamer, 2008: 1), including for example the explanatory note and the debates that focused on female circumcision and child pornography. In this analysis, only the parts discussing the criminalisation of participating or cooperating in training for terrorism are discussed. Specifically, this refers to anyone providing training (and being aware of the terrorist intent of the recipient) or receiving and/or facilitating training can be prosecuted. Training can be interpreted in a wide variety of forms. First, the legislation focuses on training in capabilities, such as psychical capabilities or skills on how to make a bomb. Second, the collecting of information or goods in order to facilitate or commit a terrorist offence is also included in this Article (ibid.: 5). A majority in parliament voted in favour of the legislation in February 2009. The Senate accepted the legislation in June 2009.

The explanatory note discussing terrorism training opened with a statement that criminal law should respond to committed injustices, but also plays a role in preventing them (Tweede Kamer, 2008: 4). This is an important shift from Minister Donner’s statement during the earlier debate on the Terrorism Act, where criminal law focusing on the future was presented as something exceptional. Here, it is presented as one of the normal functions of criminal law. This marks a shift in the way criminal law is perceived and deployed with regard to terrorism: between 2004 and 2008, a preventative role for criminal law appears to have normalised. Furthermore, the statement shows that again preventing terrorism is the

most central part of the argumentation (ibid.). But the argumentation for this legislation also overwhelmingly focused, at least from the governments’ side, on practice: according to Minister of Justice Ernst Hirsch Ballin (Donners’ successor), there was a gap in the legislation in order to prosecute all the preparatory acts that were occurring (Tweede Kamer, 2008: 5-6). This gap led to this proposal which shows once again the importance the government saw in addressing terrorism through criminal law: it was stressed that this gap had to be filled in order to prevent and combat terrorism. According to Minister Hirsch Ballin several incidents of concern had occurred prior to 2008, which could not be addressed through the current legal framework as there was a lack of relevant legislation. Failing to act would, according to the Minister, be irresponsible (Tweede Kamer, 2009a: 43-3798). This corresponds largely with an argument put forth in the analysis of the Terrorism Act, namely that political pressure leads political institutions to feel the need to act to control these risks, a clear case of terrorism risk management.

Moreover, the proposal to criminalise terrorism training as a way to bridge the legal gap can be seen as part of the precautionary principle: once this gap was detected it had to be filled in order to control the potential future scenarios. Similar to the parliamentary debates on the adoption of the Terrorism Act, this point was once again underlined by the opposition parties as well; addressing terrorism is highly necessary due to its potential disastrous consequences – an element of the precautionary principle. For example, Raymond de Roon (Freedom Party) stated that the proposed legislation is important and needed as individuals training for terrorism pose an enormous threat to the free and democratic state of the Netherlands (Tweede Kamer, 2009b: 41-3657). Here, the implementation of the legislation is justified on the grounds of guaranteeing national security, a point that was also made in the Terrorism Act debate, as well as by McCulloch and Pickering (2009).

Nonetheless, the legislation was not accepted without any criticism. The majority of questions and criticism in the debate focused on the law-making process: the fact that important matters such as terrorism, child pornography and female circumcision were all clustered together in one legislative proposal. Pechtold (D66), for example, focused on this issue in both his opening statement and his interruptions (Tweede Kamer, 2009b). D66, PvdA and SP questioned how broad the concept of training was conceptualised and whether the criminalisation of it would not potentially harm innocent citizens. Heerts (PvdA) cautioned for criminalising acts that are or can be seen as a part of people’s normal daily lives, such as martial arts classes (Tweede Kamer, 2009b: 41-3662). At the time, PvdA was one of the two

coalition parties, making their criticism all the more interesting. Pechtold (D66) stressed the importance of being realistic about the extent to which law can prevent and combat such horrible acts as terrorism, whilst at the same time stating his party wants to allow the public prosecution the necessary space to prevent these types of acts (Tweede Kamer, 2009b: 41- 3660 – 41-3661). This is again similar to Terrorism Act debates, where parties took a critical stance, while at the same time highlighting the importance of countering terrorism and possessing the tools to do so. From an analytical perspective, this can mean two things. Firstly, political parties across the spectrum seem to have internalised the precautionary principle and thus, the discourse that comes along with it. Secondly, it could mean that the political pressure surrounding the topic of terrorism is indeed as high as Ewald (1994) states, implying that failing to detect and address the risks associated with it has the consequential risk of being perceived as ‘guilty’ of inaction or not detecting the risks.

PvdA, D66 and SP stressed the upcoming evaluation of the terrorism legislation, where its functioning would be assessed. These parties argued to wait for the results rather than taking action prior to the evaluation (Tweede Kamer, 2009b: 41-364; 41-3660; 41- 3662). Minister Hirsch Ballin countered this argument by emphasising the disastrous effects of inaction: is that what is proposed by parliamentarians such as Pechtold? According to the Minister, waiting for the evaluation and then another two years before the law will be implemented would take too much time while action and increased legal space for the public prosecution was necessary in order to deal with the current threat of terrorism (Tweede Kamer, 2009c: 43-3798). This is once again a strong statement focusing on the need to act now, and the potentially disastrous consequences waiting can have – here we see the precautionary principle played out. The Minister argued that if the public prosecution does not have the legislation to prosecute possible terrorists, this might have horrible consequences that could be prevented by implementing this law. This strongly feeds into the idea that risks have been detected – namely the lack of legal tools to prosecute potential terrorists – that demand action now. Parliamentarians who disagree with this would have to face what Ewald (1994) calls being guilty of the possible consequences.

In sum, the discussion on the criminalisation of training again focused mainly on preventing terrorism, on the possibilities to manage the threat and on the potentially horrendous consequences of terrorism – all in all: the precautionary principle and mainly the future. Interestingly, it appears that the use of this precautionary principle – by invoking future scenarios and the corresponding need to act now – has normalised since the Terrorism

Act was adopted in 2004. In the explanatory note on the criminalisation of terrorism training, the Minister referred to prevention as one of the tasks of criminal law, whereas in the debate on the Terrorism Act this was mentioned as a significant shift in focus. Criticism of parliamentarians focused on topics such as the law-making process rather than the content and on definitions that were perceived as being vague, and therefore dangerous. Although similar criticisms were expressed against the Terrorism Act, eventually the proposed legislation was implemented.

Terrorism Financing The final piece of legislation focused on the financing of terrorism. In November 2012, the government proposed a change in the way terrorism financing was criminalised. This proposal was presented as a consequence of an evaluation carried out by the Financial Action Task Force (FATF); an international organisation focusing on how to address terrorism financing. In the organisations’ evaluation of the Netherlands, it was concluded that the Dutch legislation on terrorism financing was not sufficient: the FATF recommended making financing an autonomous Article, instead of including it in the long list of criminalised preparatory acts (website Eerste Kamer, 33.478; Tweede Kamer, 2013a: 1). Therefore, this law does not introduce a new criminalisation, but instead it sees to the creation of financing as a stand-alone offence within criminal law. The process regarding the proposed legislation differed from the other two processes discussed above: in this case it was not discussed parliament-wide but rather, a parliamentary Commission of experts discussed the proposed legislation in a Commission meeting leading to the publication of a report. The Minister of Security and Justice Ivo Opstelten (the successor of Hirsch Ballin) responded to the remarks and questions of the Commission report in a letter. The legislation was accepted as such in May 2013 and by the Senate in July 2013.

In line with the FATF evaluation and recommendations on the autonomous criminalisation of terrorism financing, the Dutch government argued that the proposed changes lead to increased visibility and usability of the law. Minister Opstelten stated, in the explanatory note, that the Dutch government is convinced that the legislation in place can combat the financing of terrorism, but in light of the recommendations of the FATF, the new legislation is proposed (Tweede Kamer, 2013a: 3). Minister Opstelten, in response to the questions asked by the parliamentary Commission, stressed that the Dutch government sees added value in the autonomous criminalisation of this offence precisely because of this

increased visibility and usability. Moreover, he stated that financing is such an essential part of terrorism and the potential successfulness of terrorist acts, that this legislation is very useful (Tweede Kamer, 2013c: 1-3). Additionally, this legislation made terrorism financing internationally a more recognisable offence, which according to the Minister, was important and necessary because of the “severe character of the offences and the high importance of the effective control thereof” (Tweede Kamer, 2013c: 4). This statement clearly invokes notions of terrorism risk management, as the Minister justified the proposed legislation by the need to control that risk.

Coalition party VVD stated in its response to the proposal that autonomous criminalisation of financing of terrorism is a good move: terrorist activities are very serious and the consequences of the threat to society are drastic (Tweede Kamer, 2013b: 1). The Freedom Party, CDA and SGP agreed on that point (Tweede Kamer, 2013b). Interestingly, parties such as the PvdA, D66 and SP did not mention the severity of the terrorism threat. The questions asked by the different parties focused on very specific topics, such as the role of the FATF (Tweede Kamer, 2013b: 2) and why a new law is created if the one in place is sufficient (Tweede Kamer, 2013b: 2-3). Other questions focused on the difficulties relating to evidence to prove someone was aware of financing terrorism (Tweede Kamer, 2013b: 5). All parties – potentially because the legislation to a certain extent already was in place since the adoption of the Terrorism Act – agreed on the need to criminalise financing of terrorism, and no remarks or criticisms were expressed on the grounds of risk management or the precautionary principle.

In short, although precautionary logic is less visible in the discourse surrounding the criminalisation of financing of terrorism, it still played a role in the debate. The Minister and some of the parliamentarians referred to the need to address this phenomenon in order to prevent terrorism acts from materialising. Questions mainly focused on why this new legislation is needed if the existing laws are seen as sufficient and on the FATF as an organisation – which partly can be explained by the fact that financing of terrorism already was a criminal offence before this legislation was proposed.

Concluding Remarks This section outlines some concluding remarks about how preparatory acts of terrorism are criminalised in the Netherlands, as well as introduces important annotations for the proceeding Chapter.

In Chapter 3, the operationalisation of the discourse analysis was outlined by listing elements based on the conceptual framework that signalled references to risk management, the precautionary principle, the future temporality and criticism on the grounds of legal principles. One of the main findings is that in all analysed debates and documents, it was stressed that terrorism poses a serious threat and that the consequences can be disastrous – hence, action is urgently needed and justified. This is one of the elements clearly relating to the precautionary principle, which plays a large role in the way in which preparatory acts are criminalised. The need to address terrorism through criminal law is emphasised by governmental and opposition parties alike. Even if this means taking drastic steps, illustrated by for instance Minister of Justice Donner who stated that the Terrorism Act leads to a shift within criminal law towards prevention. This shift is – for the three pieces of legislation, but mostly for the Terrorism Act – justified by the nature of terrorism and the consequences it can have for society as a whole. The Terrorism Act is the most extensive and most far- reaching element of the analysed legislation. Therefore, it is even the more interesting that the Minister is aware of the shift in criminal law caused by this proposed legislation, but justifies this on the grounds of the need to prevent terrorism – even through criminal law. In the later debates, on terrorism training, this preventative role of criminal law in counter-terrorism appears to have normalised since the Terrorism Act. It becomes clear that the future does indeed play a role in the parliamentarians’ and governments’ argumentation: early, precautionary intervention might disrupt and therefore prevent attacks. Therefore, conspiracy, recruitment, financing, training and any other preparatory acts are criminalised.

The legislation is proposed and implemented in the name of prevention and risk management: it is necessary for guaranteeing security. Stressing that an issue forms a risk leads to creating a venue for action, as Aradau and van Munster (2008) explained before. The need to find ways to control the risk and prevent disastrous consequences is thus very apparent in the argumentation which is built on the precautionary principle where action is justified and needed in order to prevent disastrous events from occurring in the future. Hence, the temporal focus of criminal law shifts to the future (Kessler, 2008). Interestingly, as the findings show, both government officials and parliamentarians are aware of this, but it is accepted and justified on the basis of the precautionary principle, leading to argue that a precautionary logic indeed influences how preparatory acts are criminalised. Here, it becomes clear that the national security, as was earlier discussed by McCulloch and Pickering (2009),

plays a central role – although it should be stated that through-out the documents and debates reference is made to the international security as well.

What is not referred to – perhaps for political reasons – is the second element of the precautionary principle, namely the unknown nature of the risk. Terrorism is not discussed as something that is inherently unknown. This potentially has to do with the fact that the risk of terrorism has been detected as such, as Ewald claims, and therefore it would be contradictory and problematic for politicians to state that the risk in unknown. The perception of terrorism as a risk has therefore led to a venue for action: once terrorism is ‘detected’ as a risk, action is needed to control and prevent which is aimed to do here through legislation.

The role of the future therefore is part of the argumentation in a dual way. Firstly, as part of the precautionary principle as was laid out before. Secondly, the future plays a role in how the precautionary principle changes criminal law. The government is aware of this change to a future temporality – but it portrays it as necessary in light of terrorism. Amoore (2008) underlined that suspicion and ‘preventing worse’ become the norm within the precautionary principle, instead of conclusive evidence. In the findings, this is highly present when argued that precautionary intervention can disrupt developments of terrorism, although this might not actually lead to sentencing – as gathering conclusive evidence is difficult in this preliminary stage. Minister Donner phrases it as follows: “with terrorism, preventing is better than curing” (Tweede Kamer, 2003b: 33-2338). Nevertheless, this is still a more nuanced picture as argued by Kessler and Amoore, as it is emphasised by the government officials that indeed it might not lead to convictions. This means that conclusive evidence is still necessary and norm should not shift to suspicion.

Mainly the traditionally more left-wing parties like the Socialist Party, the PvdA and D66 expressed criticism on all three proposals and their debates. For instance, the SP voted against the Terrorism Act and the PvdA added a note stating that they vote against the parts on conspiracy. And again, with the legislation on training, leftist parties emphasised the risks of criminalising activities that are part of people’s normal day life: how does this effect legal certainty? Moreover, throughout all the debates, parliamentarians questioned if criminal law is an effective tool for counter-terrorism. Although a wide variety of politicians acknowledged the need for a holistic counter-terrorism approach, these laws were viewed as necessary in order to prevent attacks – again justifying the shift in criminal law towards the future temporal space based on the precautionary principle.

The findings of the law-making process are important for the following Chapter on the court cases. This part of the analysis showed that the criminalisation of preparatory acts of terrorism is largely based on the precautionary principle, mainly on the element of the possible future consequences and less so on the inherently unknown nature of the issue. The government was aware of the changes caused by these laws in criminal law and justified them in light of terrorism and its prevention. This is central in the argumentation used throughout the documents: one the side, acknowledging certain changes that cause concern about legal principles and on other side, justifying this on the grounds of the disastrous consequences terrorism. Furthermore, an important element in the argumentation during the law-making process is the disruption of terrorist activities without this leading to actual convictions: here criminal law is used to disrupt, instead of its more traditional objective of conviction. This indicates a use of criminal law to reach the goal of prevention of terrorism, without necessarily including the aim of sentencing and conviction. Finally, a relevant finding for the next Chapter is also if and if so, how criticism is overcome: in the findings of the law-making process, this is largely done by referring to national security as well as the disastrous consequences of terrorism. In other words, through the imagination of possible future scenarios, which is in line with the precautionary principle.

Chapter 5: the Court Cases A closer look at court cases offers a way of understanding how both the public prosecution and courts approach the criminalisation of preparatory acts in practice. The four cases focus on different aspects, however, they share a focus on preparatory offences with terrorist intent. Firstly, the court cases will be introduced. Next, the findings will be presented by discussing different themes that came forward in the findings of the interviews and the discourse analysis. Besides the precautionary principle playing a large role in the approach of the actors, the findings also introduce a shift in the use of criminal law as a last resort towards instrumental use of criminal law. Therefore, criminal law is increasingly approached as a policy instrument which has implications for the rule of law. Throughout the chapter, the findings will be linked to the conclusions of Chapter 4 as well as the theory as laid out in the Conceptual Framework. The concluding remarks offer an overview of the findings presented throughout the Chapter.

Shukri F. Shukri F. received her verdict on 1 December 2014 in the court of The Hague. She was prosecuted on allegations of recruiting multiple people to join the armed conflict in Syria and/or Iraq and inciting terrorist offences (website Rechtspraak, 2014). Her husband, Maher H., was prosecuted on the grounds of joining the armed conflict in Syria and/or Iraq. Maher and Shukri were known to have gone to Syria together for a few months, before returning to the Netherlands (website Rechtspraak, 2014). Maher H. received a three-year sentence for joining the armed conflict, while F. was acquitted on the grounds that women traditionally do not join the armed fighting, but have other responsibilities (website Rechtspraak, 2014). Overall, according to the judges, the evidence put forth by the prosecution to prove that Shukri F. recruited people to join the armed conflict, was not conclusive or convincing. This was a setback for the public prosecution (Trouw, 2014).

Context Case The Context case is a complicated case. First of all, it encompasses more than the nine people who were eventually sentenced in the verdict that was analysed here. Of the seventeen people that were part of the broader Context investigation, ten were believed to be members of a criminal organisation with terrorist intent – initially, Maher H. and Shukri F. were also part of the Context research. The investigation of the Context case started in April 2013, after multiple people (mainly parents) turned to the police with stories about recruitment. In the

city of The Hague, the number of foreign fighters was rapidly increasing and this led the investigators to believe there was an organisation behind the recruitment and facilitation of individuals joining the armed conflict in Syria and/or Iraq (website Rechtspraak, 2015). Neighbourhood police officers played an essential role in the research as they were familiar with a number of the suspects from when they were still young until now. Additional information was provided through phone tapping, observations and the internet. The case exceeds 17.000 pages. Expert witness Martijn de Koning, a cultural anthropologist who studied the behaviour of some of the suspects, stated that Azzedine C., Oussama C. and Rudulph H. formed the heart of the organisation (website Rechtspraak, 2015). Hatim R., Anis Z. and Soufiane Z. were in Syria (or passed away) at the time of the trail and therefore did not attend the hearings. The sentences ranged from seven days to six years. Azzedine C., as the leader of the organisation, received six years in prison, as well as Anis Z. and Hatim R.. Oussama C. and Rudolph H. were sentenced to three years in prison (one year on probation), Jordi de J. to 155 days (six months on probation), Moussa L. to 30 months (ten months on probation), Hisham el O. to five years and finally, Imane B., who was sentenced to seven days in prison. The final verdict was delivered on 10 December 2015 (website Rechtspraak, 2015). Most of the suspects in the Context Case are currently appealing.

Adil C. Adil C. was prosecuted together with Sayed H. and Hardi N., three men from the city of Arnhem. Sayed and Hardi were prosecuted for planning to join the armed conflict in Syria. Here, only the verdict of Adil C. is taken into consideration due to the focus on the financing aspect. Sayed and Hardi were prosecuted on very different grounds, which are outside of the scope of this thesis – they were arrested on their way to the battlefield. The ruling took place on 18 February 2016 in the court of Rotterdam. Adil C. was prosecuted for the financing of terrorism and he received a sentence of one-year imprisonment – of which six months are on probation. C. transferred a sum of one thousand euros to a friend in Syria who was fighting there as part of a jihadist organisation. Although it cannot be proven that the money was used for facilitating or financing of terrorist activities, both the public prosecution and the judge argued that the money made it possible for the recipient to achieve his goals and sustain his livelihood. Therefore the money facilitated terrorist activities (website Rechtspraak, 2016a).

Salim S. Salim S. was prosecuted and convicted for recruiting for the armed conflict in Syria and/or Iraq, money laundering and social benefit fraud. The latter two allegations were not committed with terrorist intent and are therefore not of importance for the analysis. Salim, who received his verdict on 18 February 2016 in Breda, was proven guilty of recruiting a minor for joining the armed conflict on the side of ISIS. The minor was an asylum seeker from Syria, who came to the Netherlands to flee the violence in there. Salim was sentenced to eighteen months in prison of which six months are on probation (website Rechtspraak, 2016b).

Controlling the risk The public prosecution has a dual role, being part of both the judicial and executive power (Public prosecutor, 19 May). This is not the case with the court: judges are independent, objective and the embodiment of the judicial power. This can be seen as one of the reasons why the verdicts of these cases upon analysis are much less political. In contrast, the prosecutors referenced the political domain, the conflict in Syria and/or Iraq, the context of the offences, and the potential consequences that can occur as a consequence of inaction (Defence lawyer, 9 May & 16 May; Public prosecutor, 11 May & 19 May). The courts have a more objective perspective, at least in the language they used throughout the verdicts, that focuses largely on legal interpretation of the relevant Articles. Nevertheless, findings show how precaution underlies both the prosecution’s and the courts’ approach.

The public prosecution has a specialised team (consisting of approximately ten prosecutors) for jihadists/terrorism cases. This setup was chosen for a number of reasons. As one of the prosecutors stated, terrorism just happens to be one of the specialisations in criminal law, just as other prosecutors specialise in financial criminal law or sexual offences. Terrorism cases require a deeper understanding of the specific legal Articles focusing on the phenomenon. Moreover, the pressure is higher in this specific context (Public prosecutor, 19 May). The other prosecutor stated that the specialisation of ten prosecutors is useful because it means that no one is ‘the face of’ counter-terrorism (Public prosecutor, 11 May). This increases the individual security of the team members. Finally, discussion and input from a higher number of people is also useful (Public prosecutor, 11 May).

Throughout the interviews, the objectives of the public prosecution for these cases were discussed. Naturally, the task of the public prosecution is to follow the law, hence

prosecution on the grounds of Articles such as the Terrorism Act is part of their mandate. However, more interesting and relevant information came forward as well regarding the timing of pressing charges and preparing a case. One of the prosecutors explained that there is no choice: they cannot wait and see if something will develop into an attack. It is the urgency of the matter that makes it necessary to intervene as soon as possible: “We cannot let an attack happen or let people join the conflict” (Public prosecutor, 19 May). The prosecutor nuanced this by explaining that this is also the case if a prosecutor has clear indications that someone is planning to commit a murder, or rob a bank. Despite this distinction, his statement is similar to the line of argumentation used throughout the law-making process: the precautionary principle.

A defence lawyer explained a development in the approach of the public prosecution, something he labelled as ‘increased security thinking’; the prosecution used to intervene as a last resort, but this is no longer the case as no risk can be taken when it comes to terrorism (Defence lawyer, 16 May). Even when there is little evidence, such as in the cases of Adil C. and Salim S., the lawyer stated that they try to reach sentencing in order to control the risk from materialising (Defence lawyer, 16 May). The second defence lawyer argued that one of the main objectives of the public prosecution for these trials is “not waiting until something happens, but tackling them in the earliest possible stage” (Defence lawyer, 9 May). All the above clearly shows how the prosecution approaches these cases: inaction can possibly lead to disastrous consequences that have to be prevented. Thus, action – here in the form of prosecution – is needed. This builds on risk management approached from the precautionary principle, demanding action to prevent and control the risk of terrorism. One of the defence lawyers puts it as follows:

Of course there is more to it. Of course it is about preventing foreign fighters, and preventing terrorism. Of course. (…) When you put the whole process in a broader perspective, then politics as a whole – within the public sphere combined with the sensitivity of the topic – continuously takes further steps, or actually continuously moves the case up the timeline, to make sure they can always say: ‘At least we did something’. As the legislator, you cannot sit still, and the public prosecution and the judges act on those grounds (9 May).

A second objective, as a prosecutor emphasised, is the international obligation of the Netherlands to counter terrorism and to prevent people from joining the armed conflict in Syria and/or Iraq (Public prosecutor, 11 May). In the law-making process international obligations were emphasised as well: the Netherlands should prevent and counter terrorism, for example by implementing the EU framework decision or implementing the recommendations of the FATF evaluation on financing legislation. The court also expressed the much-heard argument that the Netherlands has an international obligation to combat terrorism (website Rechtspraak, 2015; website Rechtspraak, 2016a). There is indeed a legal obligation, but the argument also stresses the severity of terrorism: stating that the world sees it as one of the worst crimes underlines the necessity for action. Although not in a straightforward way, this implies that action is necessary by referring to other countries doing the same. Interestingly, it is an argument expressed in governmental documents, parliamentary debates and by the public prosecution and courts – apparently, it carries a high amount of legitimacy.

A third objective stems from a causal logic that the prosecution perceives. By preventing potential foreign fighters from travelling to Syria and/or Iraq, another risk is created: the risk that the people who were stopped, will want to commit a terrorist offence in their home country – out of frustration (Public prosecutor, 11 May). The final objective also underlies the foreign fighter phenomenon. One of the defence lawyers stated that returnees form a potential threat – they perhaps have radicalised further or received training (Defence lawyer, 9 May; Public prosecutor, 11 May). Preventing people from going there in the first place thus becomes an objective in itself. In the verdict of the Context Case, this argument returned (website Rechtspraak, 2015): the court argued that criminal law has a role in the prevention of terrorism. The majority of these assumptions focuses on imagined future scenarios: it could happen that one gets frustrated after being stopped from joining the armed conflict, and it could be that one will commit an attack after returning from the armed conflict. This is uncertain and unknown, but the prosecution acts to make sure these possible future scenarios do not become reality. Moreover, it shows how the court acknowledges that criminal law indeed should focus on the future temporality, in order to achieve prevention of these potential consequences. Hence, it becomes clear that both the prosecution and the court approach these cases from a precautionary logic, imagining future scenarios that could become reality if they do not act.

The precautionary principle entering the legal sphere, and specifically the court rooms, shows in the analysed cases. The following quote from Shukri F.’s verdict provides an example of how the precautionary principle underlies the court’s approach. The court referred to the Terrorism Act, which increases the sentence of recruitment for terrorism with a maximum of up to four years. In this respect, the court states:

The increase of the maximum sentence is linked to the increased rejection of the punishable behaviour, combined with the intention to advance that the recruitment of people for jihad in the future can be adequately addressed on the grounds of article 205 Sr. This form of recruitment is, according to the legislator, a particularly harmful and threatening form of recruiting explicitly added to the scope of the penal provision: a form that, taking into account the disastrous consequences of this recruitment for the subject and the possible victims, legitimises a maximum punishment of four years (website Rechtspraak, 2014).

The court again stressed the potentially disastrous consequences of recruitment, emphasising the severity of the crime. In both the Context case and the case of Salim S., where recruitment was part of the allegations, this argument returned (website Rechtspraak, 2015; ibid, 2016b). The court argued that this is the line of argumentation put forth by the legislator, and that the court is to follow this. Nonetheless, each time the possible horrendous consequences are emphasised, this is built on imagined future scenarios. In this manner, acting is legitimised: it shows how the court addresses these causes with the aim of preventing unwanted consequences. The precautionary principle has found its way from the law-making process to the prosecution to the court. Moreover, by continuously stressing that recruitment for jihad is worse than recruitment for a different type of armed conflict, the court emphasised the argument that jihad is indeed more dangerous and thus, action is justified on these grounds.

Within the case of Shukri F., the first case within the selected timeframe, the context played a smaller role compared to later cases. According to the court, it could not be proven that women actually engage in fighting in the conflict in Syria: it was stated that “morally, ideologically or financially supporting the fight or fighters, marrying a fighter and/or caring for the possessions, the household and the children of a fighter” do not fall under the jurisdiction of the Articles Shukri F. was prosecuted on. In other words, the court argued that

this kind of facilitation could not be interpreted as directly contributing to a party involved in the armed conflict (website Rechtspraak, 2014). Therefore, it could not be said that Shukri F. recruited the female suspects, as it was not proven that they joined the armed conflict.

In the case of Adil C., one and a half years later, this had changed. Adil C. was prosecuted on the financing Article. However, just as in the case of Shukri F., it was not clear what happened with the means he contributed to the conflict – in his case money, in the case of Shukri F. (female) individuals. In the case of C., his means were perceived as terrorism financing; hence he was found guilty (website Rechtspraak, 2016a). Both cases focussed on the consequences of actions outside the conflict area, in the conflict area. In the first case, the line of argument was that it cannot be said that women contribute to the fighting – this does not seem likely due to statements of ISIS – in the second case, the opposite is argued. The money will, one way or another, support a fighter, hence it supports terrorism. There was no conclusive evidence, but the court reduced the space for alternative explanations of specific – or even unknown – acts. What actually happens in the conflict is unknown, and this uncertainty in the case of Adil C. led to sentencing. The Adil C. case follows the precautionary principle and the arguments laid out about the norm shift to suspicion instead of conclusive evidence: it is uncertain what happened with the money, but nonetheless, C. received a sentence. This uncertainty, as Ewald (2002) argued, is part of precaution. In the case of C., this uncertainty is dealt with by sentencing. This is a clear example of the way in which the precautionary principle has found its way into the legal sphere, in both the approach of the prosecution as was discussed above, as well as in court.

According to the prosecution, there were ‘plusses’ proving the terrorist intent of the case, such as chat conversations between C. and the recipient of the money implying a terrorist intent, or awareness of the terrorist intent of the recipient (Public prosecutor, 19 May). The court stated this reasoning as follows:

Through the financial support of jihadists, achieving an increase in the capacity of the jihadist, the reasonable chance is consciously accepted that the collected and donated money will be used for terrorist purposes (website Rechtspraak, 2016a).

The court argued that Adil C. consciously accepted the chance that the money he sent would be used for terrorist purposes, and thus – although it cannot be proven – Adil C. committed an offence. This reasoning is interesting, because it invokes once more a role of

the precautionary principle. The court even discusses ‘chance’ here, establishing the uncertainty of the matter: it is unknown for what purpose the money was used. One of the scenarios is that the money was used for terrorism, hence Adil C. is sentenced. The legal implications will be discussed below.

A final comment should be made on another form of risk management in the analysed verdicts. Specifically in the cases of Adil C. and Salim S., a large number of probation conditions were set by the court. For instance, Adil C. was prohibited (1) to have contact with a number of people; (2) to come too close to the borders with Germany and Belgium; and required (3) to wear an electronic ankle bracelet and (4); to participate in conversations with a religious expert appointed by the Dutch probation service, focusing on Islam and “his ideas regarding his role in society in the future” (website Rechtspraak, 2016a). These conditions aim to control and reduce the risk of recidivism (website Rechtspraak, 2016a). His defence lawyer expressed criticism on these conditions, especially regarding the conversations with the appointed religious expert, as he believed the government should not intervene with citizens’ religions (Defence lawyer, 16 May). But those matters aside, it shows that the aim is to control the risk, also after detention. Of course, controlling recidivism by implementing conditions for probation happens with regular criminal offences as well. However, the extent of these conditions is different, especially to the extent of discussing one’s religious beliefs. As a defence lawyer puts it: “The idea is to rule out risk. Prevention, prevention, prevention” (Defence lawyer, 16 May). It shows how the court is invested in controlling the risk: where possible, also outside or after prison, control and prevention should be implemented in order to keep society safe.

From ultimum remedium to optimum remedium One of the interviewees pointed out another development – next to the precautionary principle – in the prosecution’s rationale. This shift from ‘ultimum remedium’ to ‘optimum remedium’ was first mentioned in the requisitory of the prosecutors in the Context case (Simon Minks and Anne-Katrien Bannink). Traditionally, criminal law is based on the idea of ultimum remedium – meaning criminal law should be used as a last resort. But, in the requisitory the prosecution stated that they are slowly moving towards approaching criminal law as optimum remedium in the case of terrorism, meaning criminal law can be deployed as an instrument to achieve a certain goal (Defence lawyer, 16 May). This shift in the use of criminal law was also mentioned by a prosecutor, who agreed that criminal law sometimes is

used as an instrument. It is deployed wherever it is thought to help reach the aim of prevention of terrorism (Public prosecutor, 19 May). Although the second prosecutor did not state optimum remedium in those words, he did explain that not everyone leaves prison a better person and therefore, sentencing does not always contribute to the goal of preventing terrorism. He agreed that, in some cases, different instruments should be deployed to reach this goal.

Hence, the prosecution argued that criminal law alone cannot solve the issue, and other solutions and instruments should be deployed. By considering the complex combination of factors that play a role in an individual’s case, it is then decided what the best and most effective approach is. On a case-by-case basis it is decided how both the individual and society are best served (Public prosecutor, 11 May & 19 May). These statements are based on the following logic: criminal law can be deployed as one of the instruments to achieve a certain goal, in this case the goal of security and preventing terrorism. Both prosecutors stated that they do not think that criminal law is the exhaustive and conclusive tool in countering terrorism: prosecution and sentencing can be effective, but overall, a counter-terrorism approach needs to be holistic and different institutions and partners need to work together to reach the same goal (Public prosecutor, 11 May & 19 May). Deploying criminal law as an instrument instead of a last resort, is a form of risk management. Criminal law becomes one of the tools through which the risk of terrorism is controlled and therefore is increasingly used as a policy instrument. Furthermore, criminal law as optimum remedium includes precautionary logic: it is uncertain what activities will develop into an attack, but based on the idea of zero tolerance it is decided that intervention is needed, in order to prevent terrorism. This reasoning corresponds strongly with Ewald’s conceptualisation of precaution.

Both prosecutors emphasised the political pressure on these cases. They stated clearly that although the political pressure is high on addressing the issue through criminal law and prosecution, the public prosecution as an organisation does not see this emphasis on the criminal justice approach as the most effective policy to counter terrorism. The prosecutor stated that “it indeed is the reality that we work in, but that does not mean we stop thinking” (19 May). The political pressure demands a repressive approach, but the prosecution and its partners find a preventative approach very important as well. In this sense, prevention means using other instruments to reach the objective of preventing terrorism – not prevention in the sense of prosecuting people as early as possible and detaining them. The prosecutor stated that he was “happy that our partners are creating these alternatives” (19 May). This is an

interesting argument as it shows that the prosecution truly sees criminal law as only one of the many ways in which the issue can be addressed. Nevertheless, the focus is on intervention in an early stage and prevention, also with other instruments. This is an interesting distinction: there are different instruments at hand, of which even the prosecution themselves rather not use their own – if possible. Although all actors approach terrorism risk management from the precautionary principle – aware of its unknown nature, imagining future scenarios – they do not necessarily want to act in the form of prosecution. This is an important addition to the literature, as it shows that indeed the precautionary principle entered the legal sphere, but not without self-criticism from the actors involved who are careful and willing to approach the topic with different instruments at hand.

In the Context case, the verdict opened with an extensive discussion on how this trial is not about religion or about prosecuting people for their beliefs or opinions. The freedoms that are part of a democratic society should be protected and are very important, but at the same time they are not without restrictions (website Rechtspraak, 2015). The court also paid attention to the instrumental use of criminal law with regard to counter-terrorism. To illustrate this, the two following quotes are of central importance:

The court does not want any misunderstanding about criminal law, taking into account the abovementioned freedoms, playing a small but important role in countering terrorism. Terrorism is internationally regarded as one of the worst crimes and all states are under obligation to combat this. Criminal law plays a role in both preventing acts of terrorism as well as the prosecution and adjudication thereof (website Rechtspraak, 2015).

In this way the legislator intended to increase the legal space to combat terrorism. Undeniably the criminalisation of acts in the preliminary stage gave criminal law a more instrumental character. The judge, of course, has to follow this choice of the legislator. Point of departure, however, remains that only actions are punishable (website Rechtspraak, 2015).

These statements include a number of important arguments that show how the precautionary principle – in the form of the instrumental use of criminal law – plays a role in the approach of the court. Firstly, the court acknowledged the role of criminal law within countering terrorism by referring to its instrumental use. Being aware of the challenges, the court stressed once more that of course, it should be wary of infringing upon the freedom of

opinion or any other human right. By acknowledging the increased instrumental use of criminal law in the case of terrorism, due to the movement towards what the court called the preliminary stage, the development of criminal law focusing on the future temporality is underlined. Assigning criminal law with the responsibility to prevent terrorism, means that future scenarios have to be imagined, acknowledged and acted upon. Thus, it can be concluded that the court not only justified but also internalised the precautionary principle. The public prosecution and the court, both approaching criminal law as optimum remedium, argued and acted based on the precautionary principle. Therefore, the findings clearly show how precaution has entered the legal sphere. Before turning to some of the implications for criminal law of this, it is important to discuss how criminal law is deployed as an instrument.

Criminal law as an instrument In what ways then, can criminal law be deployed in order to achieve the goal of preventing terrorism? One of the prosecutors explained this in a similar fashion to an argument used in the law-making process: sometimes an individual is arrested to demonstrate that the action that person undertook is not acceptable. Next, the individual enters a process aiming to de-radicalise – which in turn, can lead to avoiding prosecution entirely (Public prosecutor, 19 May). In that way, criminal law is perceived as a useful instrument: by arresting someone, an individual enters a process which could help reaching the desired effect of preventing terrorism, countering radicalisation or someone joining the armed conflict abroad. The second prosecutor also hinted at this way of deploying criminal law: the policy is to address any issues the individual has in the early stages of the investigation and prosecution. This means that social or medical intervention can be deployed, for example in assistance in finding the right education. These instruments are seen, also by the prosecution, as being (more) useful in some cases (Public prosecutor, 11 May). One of the arguments for the adoption of the Terrorism Act was the possibility of using criminal law to intervene and disrupt terrorist activities. In these examples, it becomes clear that indeed, the public prosecution deploys criminal law in this fashion. The goal of preventing an attack, or foreign fighters, has priority and, the most suitable instruments should be deployed. In other words, the risk of terrorism needs be controlled, either through the use of criminal law or through any other intervention. This is a clear example of how the precautionary principle is acted upon in the social reality: it leads to arrests in order to prevent possible future scenarios – of which it is uncertain which one will become reality.

Moreover, the action that can be undertaken by the public prosecution with regard to terrorism is influenced by the precautionary principle. With terrorism-related offences, action can be undertaken on the grounds of indication. For other criminal offences, more evidence is needed as action can only be undertaken on the grounds of suspicion. On the grounds of indication, the prosecution can deploy special detection methods, such as placing phone taps. According to a prosecutor (19 May), the legislator ‘understood’ that in light of the severity of these offences, early intervention is sometimes needed. In regular criminal cases, the investigation has to be finished before arresting an individual, but when there are indications of terrorist intent this process can be reversed. Therefore, the process of temporary custody is different as well: usually, three days are set for the investigation that has to be undertaken to prolong the detention period. In the case of terrorism, it cannot be expected that this investigation is finished within this timeframe, due to the difficulty of the research combined with the fact that initially, the individual was arrested on the grounds of indication. Hence, the prosecution is allowed a seventeen day-period to gather evidence on the grounds of suspicion. In short, this means that an arrest related to terrorism can take place on the grounds of indication, although more evidence needs to be delivered within seventeen days (Public prosecutor, 19 May). Nevertheless, it is important to mention that after those first seventeen days, the requirements and restrictions for evidence and detention are the same as in non- terrorism cases. This different approach is in line with the arguments considering the consequences of the precautionary principle in criminal law: as argued before, conclusive evidence slowly becomes less important to act (Amoore, 2008; Aradau & Van Munster, 2008). It underlines the reasoning that – in order to manage the risk – early intervention is needed, even if this is not on the grounds of evidence, but just an indication. Making a case is of later concern, when the requirements of evidence are higher again. This development is what has been described in the Conceptual Framework as being problematic as it causes shifts in legal principles. Furthermore, it shows how criminal law indeed has been changed in order to be deployed as an instrument: with regards to terrorism, changes have been made in order to be able to intervene in an early stage on the basis of indication.

Concerns & consequences The approach of the public prosecution and the court is based upon the precautionary principle. Furthermore, criminal law is increasingly approached as an instrument to counter terrorism. What are the concerns and consequences of these developments and are they visible in the analysed court cases?

Civil rights Interestingly, both the prosecutors and the defence lawyers expressed criticism or concerns regarding these developments. The concerns – about the development of criminal law as an instrument in counter-terrorism, and the consequences this has for the rule of law – are related to what Ericson calls ‘laws against laws’. The difference is that here, these laws are put into practice. One of the defence lawyers was highly critical of the developments within criminal law in terrorism trials. The defence lawyer argued that the European Convention on Human Rights states that opinions can be shocking, alarming, provoking, disrupting and unpopular – without being an offence. One of his clients – who was, according to his lawyer, pushing the boundaries of freedom of expression – received six years’ imprisonment. According to the lawyer, crossing the boundary by just one step and receiving such a high sentence is rather extreme (Defence lawyer, 16 May). Here, the lawyer introduced the Dutch case of Jitse Akse2, who claims to have killed multiple ISIS fighters. The lawyers’ client is highly frustrated as he received this amount of punishment for “expressing his opinion” and abetting people to join the armed conflict, whilst Akse seems to be in less trouble, despite actually committing murder. This can be explained by the fact that Akse and the lawyer’s client supported opposing parties in the conflict: his client support ISIS whereas Akse fought on the side of the Kurdish YPG (Defence lawyer, 16 May). Even though it cannot be argued that these cases are the same (as the level of evidence differs), it does lead to concerns about differential norms being applied, just as Amoore (2008) argued.

According to both defence lawyers, the court cases increasingly infringe upon the freedom of speech: they see this as a slippery slope where jurisprudence is built on these pieces of legislation that can eventually lead to people not being able to express themselves as freely as they should be able to (Defence lawyer, 9 May & 16 May). Two of the interviewees, one prosecutor and one lawyer, argued that the recent debate within Dutch parliament regarding the ban on Salafism is therefore very worrisome (Public prosecutor, 11 May; Defence lawyer, 16 May). This criticism focusses on terrorism legislation increasingly infringing upon the freedom of speech is similar to concerns expressed during the law- making process. At the same time, interviewees strongly disagreed on the extent to which these trials cause concerns for the freedom of speech and religion. According to one of the prosecutors, “consistently abetting is a form of recruitment” (Public prosecutor, 11 May).

2 Jitse Akse, a former Dutch soldier, claims he fought on the side of YPG and killed multiple ISIS militants. The Dutch public prosecution, on 21 June 2016, decided not to prosecute Mr. Akse, due to a lack of evidence (NOS, 2016b).

Moreover, he explained that it is impossible in the Netherlands to be prosecuted just for sympathising with ISIS – hence, freedom of speech is not infringed upon in the way the lawyers argued. Nonetheless, knowing that an individual sympathises with ISIS is something the prosecutor called ‘plusses’: if the prosecution knows someone sympathises with ISIS, that same person buys combat clothing and a one-way ticket to Turkey, the sympathising with ISIS fact becomes an indication (the so-called plus) that something is going on (Public prosecutor, 11 May). So only when an indication can be combined with an act – action can be undertaken, not just on the grounds of sympathising.

A prosecutor stated the importance of awareness on detention and its consequences: all individuals sentenced for a terrorist offence are separated in the Dutch prison system from ‘regular’ criminal offenders. In two prisons in the Netherlands – in Rotterdam and Vught – there is such a terrorism wing. All interviewees agree there are problems with this approach. The strict regime in place in these wings, in addition to the fact that no differentiation takes place among the population, concerned the interviewees (Defence lawyer, 9 May & 16 May; Public prosecutor, 11 May & 19 May). One of the lawyers expressed concerns about how strict this regime is – and how this potentially infringes upon human rights – for people sentenced for preparatory acts (16 May). Due to the scope of this thesis, the role of the detention facilities will not be considered any further, but it is relevant to the extent that it reflects upon the consequences of criminal law. Therefore, it can be argued that these statements nuance the idea that prosecutors – because of these criticisms – want to deploy criminal law wherever possible.

According to one of the prosecutors, there was little jurisprudence on abetting statements in order for the prosecution to know where the boundary is. In the Context case, this led to prosecuting the suspects on a high number of statements. In this way, jurisprudence could be built, whilst also gaining a better understanding of how some statements are interpreted by the court (Public prosecutor, 11 May). One of the prosecutors thought the court followed the line of arguing of the defence in many cases, leading to acquittals on these statements. The suspects of the Context case still received a relatively high punishment – which they find frustrating and for which a number of them are appealing – because “membership of a criminal organisation with terrorist intent is a very heavy accusation” (Public prosecutor, 11 May). The defence lawyer stated that in these cases, the context and climate in which these offences happen play a big role. For example, the attacks

in Brussels and Paris3 have an impact on the judges, according to the lawyers. A lawyer said that he thought his client’s openness to the media influenced his sentence, by setting him as an example to show how strict these acts were addressed (Defence lawyer, 9 May & 16 May). Moreover, one of the defence lawyers expressed concerns about the overall direction of the developments: at this point, glorification of violence is not criminalised, but in the current climate this could be the next step. Right now, prosecuting and sentencing individuals for glorification of terrorism sometimes takes place through the use of the Article on being a member of a criminal organisation with terrorist intent. This will be discussed further below. However, to prosecute individuals that glorify violence, criminalisation of glorification as an independent Article would have to take place (Defence lawyer, 9 May). These are interesting statements, because they show – although it is arbitrary to make statements about what the next developments will be – that indeed, the process of criminalisation could go further.

Legal principles Both lawyers have additional concerns, relating to legal principles. The defence lawyer referred to the lex carta principle – legal certainty. This is infringed upon when certain statements become punishable because they have been expressed within a criminal organisation with terrorist intent that is occupied with recruitment for jihad and thus, with terrorist intent. The statements by themselves are not an offence, but the fact that they have been expressed within the context of an organisation with said objective: members of this organisation are all held accountable for certain statements. In the words of the defence lawyer, this creates a difficult situation for individuals regarding the knowledge of what can and cannot be said and when one will be held accountable (Defence lawyer, 9 May). This is the claim as was laid out in Chapter 2, by both Amoore (2008) and Ericson (2008): legal certainty is a central legal principle within the rule of law, but here – as Ericson calls it – a law against a law is established where the consequence is that it becomes difficult to know when exactly one is committing a criminal offence.

One of the defence lawyers stated that despite being acquitted of individual statements, individuals were still found guilty of statements as they were done in the name of the criminal organisation with terrorist intent: “In that case, I do not understand what is left of the concrete accusation” (Defence lawyer, 9 May). According to him, the climate in which

3 In 7 January 2015, the offices of satire cartoon magazine Charlie Hebdo in Paris, France were attacked. On 13 November 2015, multiple bars, restaurants and a concert hall were attacked in Paris. On 22 March 2016, bombs exploded at the airport and a metro station in Brussels, Belgium.

these individuals were operating played a big role in the motivation of the court to come to these sentences – which according to him, inflicts on the legal certainty (Defence lawyer, 9 May). A defence lawyer noticed a development over time in the courts’ decisions in these cases. Increasingly, the court followed the line of argument of the prosecution, leading to more convictions, regardless of the acquittals that took place too (Defence lawyer, 16 May):

They [the judges, JG] are only human, and see the excesses in Syria, in Brussels, in Paris. They think an example should be set. (…) They want to show that they do not find this acceptable and that you cross that boundary quite fast. That leads to strong sentencing and a low burden of proof. That is the impression I get.

These comments have to be analysed in light of the person that expressed them – in this case a lawyer defending his clients. But by taking into consideration the perspective of the prosecution, a more comprehensive analysis can be made. One of the prosecutors stated that the context, again referring to for example the Paris attacks, indeed played a role: he built his argument on the fact that recent history has shown that returned foreign fighters form a potential threat and this can, and maybe does, play a role in court (Public prosecutor, 11 May). Prosecutors and lawyers note the same development within terrorism trials: judges see what is going on outside the court-room as well and are aware of the risks involved – and try to control these risks, therefore approaching these preparatory acts from a precautionary perspective. This is an indication that external pressure influences the approach of the court as well. As was discussed before (Ewald, 1994), institutions have to act on risks. In this case, risks are clearly detected, among others because of attacks in other countries. Potentially, the court does not want to run the risk of not having detected the proper risk by acquitting someone who indeed forms a risk.

In light of these comments on the importance of the context, some interesting findings stand out. For example, in the Context case the table of contents of that verdict shows how much more extensive it is compared to the other verdicts analysed. There are chapters titled ‘The investigation’ and ‘The developments in Syria’ (website Rechtspraak, 2015), whereas in the case of Shukri F. this was discussed in a short paragraph. Even though the Context case is a larger case as it is involves nine people, dedicating this amount of space to the context and developments in foreign affairs marks a clear different from Shukri’s case. It shows the extent to which the ‘climate’ – as a prosecutor referred to – played a role in this case.

Furthermore, a defence lawyer spoke about another concerning development he noticed in the Dutch criminal justice system regarding terrorism trials: the reversing of the burden of proof (Defence lawyer, 16 May). For instance, the argument of the prosecution in the case of Adil C. was that the thousand euros sent by C. enabled the recipient to stay in Syria, and thus should be viewed as terrorism financing. According to his lawyer, it cannot be proven that this money financed terrorism, but because it cannot be proven that it was not, C. was convicted (Defence lawyer, 16 May). As was discussed earlier, the prosecution and the judge argued that there were ‘plusses’ proving that C. was aware of the terrorist intent of the recipient, therefore consciously accepting the chance it would be used for terrorist purposes. Nonetheless, the case of C. shows that indeed, it is unknown and uncertain what the money is used for, which points in the direction of a movement towards the reversing of the burden of proof. There is a chance it has been used for terrorist purposes, and it cannot be proven otherwise, so C. received a sentence.

Finally, the level of the burden of proof is decreased through arresting people on the basis of indication, in order to control the risk of – and prevent possible future scenarios. As was discussed before, this happens based on precaution which in this sense has entered the legal sphere – but it effects the norms on which law enforcement acts (Amoore, 2008). According to the lawyer, fundamental constitutional guarantees – such as the freedom of speech, but also legal principles that uphold the rule of law – are at stake:

At some point it will hit you. When your constitutional guarantees are taken away. That is what we should not do, even in these times. Those guarantees are in place for times like these as well, especially for times like these when we struggle with ourselves. As a society, we have to accept there is a certain risk. If not, it becomes a bit of a dictatorship (Defence lawyer, 16 May).

This is a bold statement – where grave concerns are expressed about the consequences of the current developments – that has to be put in the context of the lawyer stating this. But the prosecution is also aware of the precarious balance that is at stake in their work:

We have to balance on the one hand, the criminal offences and on the other hand, the rule of law with important rights for suspects, among which the freedom of speech and the freedom of religion (Public prosecutor, 11 May).

All actors see the potential problems due to these developments, and they all discussed certain rights such as the freedom of speech and/or religion and the need to protect these rights. But, as is shown in the above, these developments are slowly occurring. The analysis shows that the precautionary principle has entered the legal sphere and has changed certain aspects of criminal law. The defence lawyers warn for the consequences on the burden of proof that is requested and all actors acknowledged that inaction is not possible – no one wants something to happen under their watch. In the literature (e.g. Amoore, 2008; Ericson, 2008; Kessler, 2008), concerns are expressed about developments in criminal law focusing on prevention and using criminal law for risk management. The analysis shows that indeed, criminal law is used as a policy instrument for counter-terrorism, as interviewees also point out. The prosecution is convinced that by assessing the situation on a case-by-case basis, the most effective instrument can be deployed – this being criminal law or any other counter-terrorism instrument. The court, also aware of the potential pitfalls of these developments, stressed it will continuously protect the rule of law and human rights, also in light of these changes. Most of all, these developments are justified by continuously stressing, through-out all written documents, language and statements, the severe character of terrorism and its potential consequences.

Concluding Remarks Firstly, the findings show that the public prosecution and the court indeed have the objective of controlling risk and preventing terrorism and individuals from becoming foreign fighters. Furthermore, the prosecution acknowledges that there is a risk, and that waiting around and not acting is therefore not possible. According to the prosecution, a shift has taken place from criminal law as a last resort (ultimum remedium) to criminal law as one instrument among others (optimum remedium). Interestingly, the public prosecution also stated criminal law is not always the most effective way to address terrorism and hence, other instruments should sometimes be used. Despite these nuances, it can be concluded that the public prosecution approaches these cases on the basis of risk management and the precautionary principle. The idea is that through early intervention terrorism can be prevented and the risk controlled. Whether this is done through the use of criminal law, or through social or psychological interventions is of less importance. With a holistic approach where partners work together, the most effective instrument should be deployed to reach the collective aim of prevention. This is important, as it shows a distinction from the literature. The findings show that the actors involved act on the basis of the precautionary principle –

especially with the aim of prevention of terrorism – whilst looking for the most effective tool, therefore not necessarily involving criminal law. So although an increasing emphasis is placed on using criminal law, the actors involved are careful about these developments as well and look for other possibilities.

Despite the less political role of the court, which holds a judicial position in contrast to the mix of executive and judicial power of the public prosecution, the precautionary principle is also visible in how the court approaches these cases. The court also stressed the more instrumental use of criminal law with regard to terrorism. Additionally, references to the international obligation of the Netherlands to prevent terrorism and to the severity of jihad recruitment, also show that the court is driven by the precautionary logic. Finally, the severity of the probation conditions, in one case going as far as to enforce discussing religious beliefs with an appointed expert, shows the extent to which the court also aims to contribute to the goal of controlling the risk.

The introduction of the instrumental use of criminal law is in line with some of the arguments that came forward in the analysis of the law-making process. Here, it was already mentioned that disrupting activities could be a goal in itself. That was reiterated and emphasised by the prosecution in explaining their approach to the preparatory offences of terrorism. This is an interesting development, potentially a consequence of the implementation of the Comprehensive Approach to Jihadism, which focuses on all law enforcement partners collaborating in counter-terrorism.

Approaching criminal law as an instrument is based upon uncertainty and therefore relates to the precautionary principle as conceptualised in this thesis. The aim of preventing attacks and controlling the risk of terrorism leads to the imagining of future scenarios. In order to control these scenarios from unfolding, certain activities need to be disrupted and, criminal law can then be used as an optimum remedium – as one of the ways in which this risk has to be dealt with. Thus, the inherently unknown nature of future terrorist acts indeed play a role in the way these preparatory acts are approached in court by both the prosecution and the court. The prosecution touches upon this unknown nature with statements about not being able to wait around to see what develops into an attack and what does not. Furthermore, the instrumental character that is given to criminal law slowly changes it into a policy instrument as it becomes an instrument deployed to reach a certain policy goal.

The findings show that the public prosecution and the court approach terrorism trials as one of the ways in which the risk of terrorism can be managed. Therefore, this shift from ultimum remedium to optimum remedium causes criminal law to be used as a policy instrument. With this logic – based on the precautionary principle – entering the legal sphere it undergoes changes, which mainly shows in in encounters between certain legal principles and this precautionary principle. For example, legal certainty is negatively affected when norms are differentiating and it is difficult to know when one is committing an offence, as was seen in the analysis of the Context case. Moreover, the increasing focus on the future temporality – as both the prosecution and court imagine future scenarios when discussing the severity of the offences – causes friction with the traditional focus of criminal law on the past and the present, just as Kessler (2008) argued. But it is not just these legal principles where the introduction of the precautionary principle causes challenging encounters. The freedom of expression and religion, although all actors express the will and importance of guaranteeing these freedoms, clash with the precautionary principle. The precautionary principle, in its most extreme form, would lead to extreme forms of control infringing upon these freedoms: where, in the Context case, suspects were acquitted of certain statements, this would no longer happen if the precautionary principle increasingly shapes the approach of the prosecution and the court. All these encounters, where legal traditions and civil rights clash with the precautionary principle, have to be dealt with by the actors involved – also considering the high political pressure they are under to act upon this issue. For now, the analysis shows a mixed consideration of these encounters: although the precautionary principle increasingly influences the choices made, legal principles and civil rights are still protected by the courts, and the prosecution states to balance between the (alleged) offences and these principles and rights.

When there is friction between the precautionary principle and legal principles and civil rights, and the approach taken is more strongly influenced by precaution, this appears to be justified by referring to the disastrous nature of terrorism – thus legitimising action. To some extent, this argument is justified by pointing out the need to guarantee safety in the Netherlands, although an increasing amount of emphasis is placed on the international obligation of the Netherlands to counter terrorism as well – which partly could be explained by the foreign fighter phenomenon, which has further de-bounded spatial boundaries. Furthermore, the findings show signals that institutions are influenced by the idea that not detecting what is and is not a risk could harm the actors and the institutions. As the pressure

is high on this issue, institutions cannot make a ‘mistake’ – i.e. not arresting, prosecuting and sentencing someone that indeed forms a risk and attacks. This influences the approach the public prosecution and the court take, and underlines the precautionary principle. After all, it leads to a more ‘zero tolerance’ approach that focuses on controlling the risk of terrorism.

These encounters are where the consequences for the rule of law are decided upon. In the case of Adil C. it appears that a precautionary decision has been made on the basis of uncertainty, but the acquittal of Shukri F. shows the importance of conclusive evidence. Time after time, with each case, the precautionary principle can increasingly enter the legal sphere. If this happens, is largely in the hands of the actors discussed in this Chapter. Although they stress the importance of protecting the rule of law, and especially the awareness of the precarious balance they are in, the precautionary principle shows to be deeply ingrained in their approaches. The prosecution emphasises the need to use other instruments than criminal law to control terrorism, which could be a way of approaching the terrorism risk through the precautionary principle, without negatively effecting the rule of law.

What stands out from the findings is how actors cannot not act: the (political) consequences concern the actors – because of the consequences of a potential terrorist attack, but also, the consequences for the political context. The pressure on the issue of (counter- )terrorism, makes action important – but increasingly, makes inaction disastrous for the institutions that have overlooked something. Ewald touches upon this when stating the importance for institutions to detect the risks, in order not be guilty when something happens. The analysis shows that the approach of all actors is highly influenced by the precautionary principle, as preventing uncertain and unknown possible disastrous consequences is the main objective in their approach, and has entered and changed the legal sphere. It also shows how a preventative role for criminal law has normalised further since the adoption of the legislation discussed in Chapter 4.

Finally, as was discussed above, the analysis shows that actors themselves are aware of the (negative) consequences for the rule of law of the introduction of the precautionary principle into the legal sphere. Therefore, their aim is to use other instruments whenever possible to control the risk of terrorism. This is an important finding not only in relation to the literature – as it shows a will to protect traditional principles, whilst at the same time, act on the basis of precaution – but also deserves more attention of scholars. This will be elaborated upon in the following Chapter.

Chapter 6: Conclusion The aim of this thesis was first of all, to gain a deeper understanding of the criminalisation of preparatory acts in the Netherlands in the law-making process, and secondly, to research how the prosecution and courts interpret these acts in court cases. In order to do so, parliamentary debates and governmental documents detailing the law-making process of three pieces of legislation were analysed using discourse analysis. Furthermore, four court cases since August 2014 – in which this legislation was of central importance – were analysed by conducting interviews with the main stakeholders and through a discourse analysis of the verdicts.

Regarding the first part of the question, a clear picture can be drawn from the law-making process. The shift in thinking about criminal law as an optimum remedium rather than an ultimum remedium, becomes clearly visible. It is argued that criminal law, and the proposed legislation, can provide ways to disrupt the unfolding of scenarios that lead to terrorism acts; an argumentation that seems largely based on the precautionary principle and thus shows how this principle has pervaded the legal sphere. Terrorism is portrayed as a substantial but uncertain risk with potentially disastrous consequences that needs to be kept under control as much as possible. Hence, early intervention – for example through prosecuting individuals for preparatory acts – is deemed both necessary as well as justified.

The public prosecution approaches these cases following the same precautionary logic. While being aware that criminal law and sentencing individuals do not provide the solution to terrorism, they still argue that is a useful instrument to disrupt and intervene when necessary – thereby acknowledging the development of criminal law as an optimum remedium. Furthermore, the prosecution clearly states that inaction is not an option: they cannot run the risk to wait to act until an attack happens. This shows that indeed, the approach of the prosecution is overwhelmingly based on precaution. Once certain acts are criminalised, the public prosecution has to act on them. The prosecution’s arguments and objectives are largely built on imagined future scenarios and the uncertainty inherent to the risk of terrorism – which shows how precaution shaped their approach to these cases.

To a large extent, the courts followed the argumentation and evidence provided by the prosecution, leading to convictions in three out of the four cases. Despite the verdicts naturally having a more legal nature, they did show how the courts’ approach is influenced by precaution. Here, once more, the focus is largely on the consequences of actions of foreign

fighters, pointing into the direction of what can happen if no intervention is takes place. Although it is unknown what future scenario will become reality, the courts need to act on the risk of disastrous consequences of terrorism.

Thus, on the one hand, the precautionary logic and the terrorism risk management clearly play a central role in the law-making process and the court cases. On the other hand, throughout all the analysed documents and interviews, actors expressed their concerns about using criminal law as an instrument to counter terrorism and the consequences this might have for the rule of law. In court, these encounters of law and risk play out in practice. The thesis shows how, when a more precautionary decision is made, this is justified on the grounds of national security and the imagination of potential future consequences of inaction. The prosecution aims to use different instruments wherever possible and does not see detention as the solution to terrorism. Additionally, it became clear that they are aware of the fact that they have to find the right balance between the rule of law and protection. The courts, as is shown in acquittals and references made to the freedom of expression and religion, do not solely base their approach to these cases on the precautionary principle. What this thesis demonstrates, is how the main actors struggle with this shift in thinking on the role of the criminal justice approach: they are aware of, on the one hand, the need to protect national security and, on the other hand, the need to protect the rule of law.

Thus, the concerns expressed in the literature – relating to the lack of legal certainty and encroachment on the freedom of expression – come back in this thesis as well. According to the prosecution, due to strong political pressure regarding this topic it becomes even more difficult for institutions such as the public prosecution and the court not to act. After all, not detecting the risks indirectly places the blame on these institutions if something does happen. Nonetheless, the will of the public prosecution to find solutions other than sentencing, and approaching criminal law as one of the instruments, is clearly present. This shows that while the increasing emphasis on the precautionary principle in criminal law has taken center stage, at the same time there are developments moving away from deploying criminal law. Therefore, although risk and precaution increasingly enter the legal sphere, and clash with legal principles, the prosecution and courts practice a cautionary approach and demonstrate a clear awareness of the problematic outcomes as well.

The results show that the actors are situated within a larger playing field and their different roles influence their standpoints. This means that the political side acts under high

political pressure: with terrorist attacks occurring; it is even more necessary to show that action is undertaken. Although the prosecution operates under political pressure as well, they have more space to work together with partners and find alternative solutions – which is something they aim for. By incorporating the law-making process in this thesis, hence researching institutions with a more political nature, it becomes clear how different the issue is being addressed. Although the prosecution works to prosecute individuals who commit an offence, including those who commit preparatory offences, early intervention can in some cases be executed using instruments other than criminal law. This thesis shows that political pressure and the role of the (political) institution influence if, and if so, how, the precautionary principle enters the legal sphere. Moreover, this thesis shows how encounters between risk management and the precautionary principle, on the one hand, and law and legal principles, on the other hand, do not always end with a decision based on precaution. This shows how actors have their own discretionary space and power – even though it becomes increasingly difficult to resist the precautionary logic.

In order to research the different roles and perspectives of institutions further, more work needs to be done. Most obviously, this could be achieved by conducting research in countries other than the Netherlands: by analysing the law-making process and court proceedings in different countries, where for example there is no Comprehensive Approach to Jihadism. It could be studied to what extent the holistic approach adopted in the Netherlands makes it a unique case. What if other instruments to use are non-existent? Does the development of criminal law from ultimum remedium to optimum remedium take place in other countries as well? Finally, how are encounters between risk and approached in other countries? Also, the law-making processes and laws in the Netherlands are different from other countries. Hence, the results presented in this thesis cannot be generalised to other countries or cases, for which more research is needed. Also, further research needs to be done in order to study the different instruments: what are they, how often are they used and on what grounds? This will provide more clarity regarding the claims of the public prosecution, in addition to the role of the precautionary principle within the institutions overseeing these other instruments. Finally, it is important to research this because of the consequences for the rule of law. If indeed other instruments can be deployed as well, this could mean that emphasis can be taken away from criminal law and therefore preserving legal principles such as legal certainty, and perhaps, criminal law as a ultimum remedium.

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