Foreign Fighters and Anticipatory Criminal Law Stretching Criminal Law to its Limits
Fien Kok Student number 10691596 Master Public International Law Thesis Supervisor: prof. mr. dr. H.G. van der Wilt
Content Introduction 3 Section 1: The Obligation to Criminalize the Phenomenon Foreign Fighters 6 The Influence of the UN Security Council on Criminal Law 6 UN Security Council Resolutions concerning foreign fighters 6 European Influence on Criminal Law 7 The EU Council Framework Decisions and the Conventions of the Council of Europe 8 Section 2: ISIS in perspective 10 What is jihad? 10 Al Qa’ida and the emergence of ISIS 11 ISIS 12 Differences and similarities AQC and ISIS 13 Section 3: The Fear of Returning Foreign Fighters: a Historic Perspective 15 Spanish civil war 15 Section 4: Preventive Anti-Terrorism Legislation put into Perspective: the Emergence of the Risk Society and the Interference with the Freedom of Choice 17 The emergence of the risk society 17 The role of the UN in the shift toward a risk society 19 The interference of government with the freedom of choice to travel to a conflict area 19 Reasons provided in Security Council Resolutions 23 Reasons provided in EU Framework Decisions 25 Interim conclusion 25 Section 5: The Limits of Precautionary Criminal Law 27 Precautionary criminal law 27 Criminal wrongdoing 29 Endangerment of legal interest 30 Interim Conclusion 33 Section 6: Preventive Anti-Terrorism Law in Practice: Dutch Case Law 35 Preparation of a terrorist crime: Samir A. 36 Prosecuted foreign fighters in the Netherlands: two examples 37 Conclusion 39 Bibliography 42
2
Introduction
Terrorism is one of the greatest threats to international peace and security according to the United Nations Security Council.1 There are 13 international conventions and protocols that require state parties to criminalize a particular manifestation of international terrorism under domestic law.2 With the rise of the Islamic State (hereafter ISIS) and a growing number of European citizens joining the radical movement in Iraq and Syria, the call for anti-terrorism legislation seems more urgent than ever. How to prevent ISIS-sympathizers from travelling to Iraq or Syria is a complex issue, as it requires criminalization of behaviour that objectively seen is not necessarily illegal. The culpable mind then becomes the determining factor, as the circumstantial evidence is often composed with everyday activities. The scope of what behaviour falls within criminal law is stretched to its limits, and the answer to what in essence the reprehensible behaviour is, remains unclear.
In the struggle to supress terrorism, intervention in the early stage of the alleged crime has become a priority. Preparatory acts, such as offence planning and training, are considered a part of preparation, which is a legal form of accountability that occurs before attempt. Preparation bears a smaller degree of wrongfulness than attempt, as the offender must still overcome the last of his or her inhibitions toward the offense. Intent thus becomes increasingly important, and any form of intent, including dolus eventualis, will satisfy the material elements of the penalization.3 The possibility that the offender might reconsider is thus irrelevant, as it does not reduce the original risk to the legal interest.4 As will be discussed in section 5, the problematic character of advanced anticipatory criminal law lies within the fact that neutral, everyday activities that hold no objective link to a clearly prohibited activity or objectively measurable threat level are penalized.5 Offense definitions introduced within the framework of anticipatory criminal law are thus subject to vagueness. The potential danger of terrorist attacks justifies the criminalization of preparatory activities only if these acts are linked to already committed wrongdoing and not only to the
1 UNSC Res 2178 (24 September 2014) UN Doc S/Res/2178. 2 Kimberly N Trapp, State Responsibility for International Terrorist (Oxford University Press Oxford 2011) 9. 3 Ulrich Sieber, ‘Risk Prevention by Means of Criminal Law’ in Francesca Galli and Anne Weyenbergh (eds), EU Counter Terrorism Offences. What Impact on National Legislation and Case Law? (Editions de l’Université de Bruxelles Brussels 2011) 266. 4 Sieber (n 3) 268. 5 Sieber (n 3) 269.
3 dangerousness of individuals.6 The absolute goals of punishment such as retribution and atonement and the principle of culpability place an upper limit on the various criminal law- based modes of restraining liberty, but do not provide them with a general legitimation.7 So what legitimatizes this broad penalization of conduct? The main research question of this thesis is:
Is anti-terrorism legislation through advanced anticipatory criminal law aimed at preventing individuals from traveling to ISIS legitimate?
This thesis is by no means a plea that the danger ISIS forms is unreal or unsubstantiated; the threat ISIS poses in the Middle East is very real and is not to be underestimated. As to the criminalization of foreign fighters there however is the issue that the chain of causality is patched together by intent or even consists entirely of intent. Everyday activities then are subject to criminalization, as will appear and the question is what the limits of criminal law are. The criminalization of foreign fighters presupposes two elements. First there is the presumption that individuals will or might participate in terrorist activities when arriving in ISIS, thus posing a threat there. Second there is the presumption that returning foreign fighters pose a threat to public safety here by continuing their alleged terrorist acts, or establish a caliphate here.
The object of research for this thesis is the Security Council Resolutions concerning ISIS and foreign fighters and the European Council Framework Decisions and Directives on prevention of ISIS-sympathizers to join ISIS, as Member States of both the UN and the EU are required to criminalize the phenomenon foreign fighters. Measures against jihadist coming back from Syria or Iraq thus fall outside the scope of this thesis. The term foreign fighters in the context of this thesis is perhaps unfortunate as this thesis focuses on individuals who intent to travel to ISIS and therefore have not travelled to ISIS yet. The term fighter also implies that a violent act has already been conducted. The term will however be used to question if individuals that want to travel to ISIS fall under the definition of foreign fighters in Security Council Resolution 2178 (2014).8
This research question has both a descriptive and an evaluative character. The legislation on
6 Sieber (n 3) 278. 7 Sieber (n 3) 258. 8 UNSC Res 2178 (24 September 2014) UN Doc S/Res/2178.
4 preventing citizens from joining ISIS quickly develops due to the urge of the United Nations, the European Union and public opinion. Governments can never cover all risks in society, but in the case of ISIS, there seems to be a tendency towards precautionary criminal law. The legitimacy of the anti terrorism legislation will be discussed on the basis of Joel Feinberg’s four principles of law; the harm principle, the offense principle, legal moralism and legal paternalism.
In section 1 an overview is given of the international obligations to criminalize future foreign fighters to travel to ISIS, in order to answer the formal question why traveling to ISIS is criminalized together with what activities are to be criminalized. In section 2 ISIS is put into perspective. Questions that will be answered in this section are amongst others include what ISIS is, what acts are being carried out and what the reprehensible ideology is. A short overview is given on how ISIS came into existence, in order to get a better understanding of the means and aims of ISIS. Next, the phenomenon foreign fighter is put into a historic perspective. In section 4 the emergence of the risk society is discussed. As individuals are prevented from traveling to ISIS, and this is an interference with the freedom of choice, the rationale behind the Security Council Resolutions and Council Framework Decisions are discussed on the basis of Feinberg’s four principles. In this section the question that will be answered is why traveling to ISIS is substantively criminalized. In section 5 the limits of precautionary criminal law are discussed, on the basis of criminal wrongdoing and endangerment of legal interest.
5 Section 1: The Obligation to Criminalize the Phenomenon Foreign Fighters
States across Europe and throughout the world criminalize the phenomenon foreign fighters, as they are obliged to do so. In this section the Security Council Resolutions and the European legislation concerning foreign fighters are discussed. First the powers of the UN Security Council within the territory of criminal law are explained, after which the Resolutions that address foreign fighters are considered. Then the powers of the European Union within the area of criminal law are explained, after which the two Directives and the European Convention of Warschau concerning terrorism are considered.
The Influence of the UN Security Council on Criminal Law The UN Security Council has no criminal legislative powers within itself. Under Chapter VII of the UN Charter, the Security Council is mandated to deal with threats to international peace and security. Once the Security Council has determined an existence of any threat to peace, as articulated in article 39 of the UN Charter, it can make recommendations or take measures. Security Council Resolutions under Chapter VII are binding to all Member States. Individual sanctions remain controversial as the question remains whether this falls within the scope of the mandate of the Security Council. Individual sanctions are indirectly possible since the establishment of the UN Sanctions Committee. The UN Sanctions Committee was established by Security Council Resolution 1267 in 1999.9 The Committee composes a list of individuals whom allegedly support terrorism, against which States are urged to take measures, thus making the State the addressee and not the individual, as the State is required to take action. Although the UN Security Council has no criminal legislative powers, its Resolutions are agenda setting and highly influential on national legislation, as the Resolutions under chapter VII of the UN Charter are binding.
UN Security Council Resolutions concerning foreign fighters The Security Council established a general framework to combat terrorism in 2001 by means of a binding resolution under Chapter VII; Resolution 1373 (2001).10 Member States were required to criminalize terrorist acts and any act affiliated with terrorist acts, including preparation and planning of terrorist acts.11 Most of the norms in this Resolution were not new; the criminalization of financing of terrorism was already required in the UN Terrorism
9 UNSC Res 1267 (15 October 1999) UN Doc S/Res/1267. 10 UNSC Res 1373 (28 September 2001) UN Doc S/Res/1373. 11 UNSC Res 1373 (28 September 2001) UN Doc S/Res/1373 §2 e.
6 Financing Convention. The Resolution is however binding for all Member States, contrary to the Convention, which binds only the States that have ratified the Convention. What the definition of terrorism is, was not defined in Resolution 1373. Criminalization of terrorist preparatory acts is thus no recent development. In 2014 the situation in Syria and Iraq was addressed specifically in Resolution 2170 (2014). This Resolution is also binding and contains three State duties. The first duty is reiterated obligation of Resolution 1373 to prevent financing of terrorism. Second, individuals that recruit for ISIS could and should be added to the sanctions list as established in Resolution 2167. Last, and most important for this thesis, the Security Council requires States to supress the flow of foreign fighters and to bring foreign fighters associated with ISIS to justice.12 Resolution 2178 (2014) focuses exclusively on foreign fighters. The definition of foreign fighters in this Resolution is:
Individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving terrorist training, including in connection with armed conflict.13
States are required to criminalize and prosecute individuals that travel or attempt to travel abroad to prepare or participate in terrorist acts. What constitutes terrorism is not defined in this Resolution, or in any other Security Council Resolution.14 Joining groups affiliated with ISIS are expressly referred to, but the Resolution covers the criminalization of foreign fighters joining any group affiliated with terrorism.
European Influence on Criminal Law The European criminal law system is a so-called hybrid system, in which the determination of criminal responsibility is a shared responsibility of the EU and the Member State.15 The competence is shared as the European Union determines the scope of the liability, but the Member State has to implement the European legislation. Article 83 of the Treaty on the Functioning of the European Union (hereafter TFEU) forms the basis for EU legislative
12 UNSC Res 2170 (15 August 2014) UN Doc S/Res/2170 preambule §1, 7, 14. 13 UNSC Res 2178 (24 September 2014) UN Doc S/Res/2178 preambule §8. 14 Geneva Academy of International Humanitarian Law and Human Rights ‘Foreign Fighters under International Law’ (Briefing)
7 competence within the area of criminal law. The EU can, by means of Directives, establish minimum rules concerning terrorism. Article 84 TFEU provides legislative powers to the European Council and Parliament in the field of crime prevention.
The Council of Europe aims to create more unity amongst its members within the area of specific matters, including legal matters. The Committee of Ministers can conclude conventions thereto.16 The conventions concluded by the Committee of Ministers are binding in so far as the member state has ratified the convention.
The EU Council Framework Decisions and the Conventions of the Council of Europe The EU has implemented the obligations to criminalize preparatory terrorist acts as formulated in Security Council Resolution 1373 (2001) in Council Framework Decision 2002 on combatting terrorism17 and Council Framework Decision 2008 amending the previous Framework Decision.18 There are other Framework Decisions on financing terrorism and the listing and de-listing of individuals on the European Sanctions list, but these will not be discussed as they do not address foreign fighters. In article 1 of Framework Decision 2002 terrorist crimes are broadly defined, as the definition also covers offenses relating to terrorist groups,19 offenses linked to terrorist activities,20 and incitement, complicity and attempts in relation to such offenses.21 In the Framework Decision of 2008 articles 3 and 4 were amended. These articles now also cover public provocation to commit a terrorist offense, recruitment for terrorism and training for terrorism, thus covering a broad range of preparatory acts. The term ‘foreign fighters’ is not used in either Directive. Eurojust has reported that even though the cases on foreign fighters are scarce throughout Europe, the current Framework Decisions on combatting terrorism is in need of an amendment to address foreign fighters specifically. 22 This amendment should address three issues specifically according to Eurojust. First, certain types of conduct of foreign fighters need to be added to the list of terrorist offences, in order to implement the UN Security Council Resolution 2178 (2014). Second, the problems encountered in relation to proof of the existence of a terrorist
16 Article 1 and article 15 of the Statute of the Council of Europe. 17 Council Framework Decision 2002/475/JHA of 14 June 2002 on combating terrorism [2002] OJ L 164/3 (Combating Terrorism Decision 2002). 18 Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism [2008] OJ 330/21 (Combating Terrorism Decision 2008). 19 Combating Terrorism Decision 2002, art. 2. 20 Combating Terrorism Decision 2002, art. 3. 21 Combating Terrorism Decision 2002, art. 4. 22 Eurojust was established by Council Framework Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with the view to reinforcing the fight against serious crime [2002] OJ 63/1 and has the tast to stimulate and improve coordination of investigations and prosecutions between competent authorities; Eurojust ‘Foreign Fighters: Eurojust’s Views on the Phenomenon and the Criminal Justice Response’ (Report) (January 2015)
8 group should be better addressed. Last, foreign fighters that do not join a specific group but travel on their own to a conflict area need to be addressed.23 Eurojust however does not specify how the problems in relation to proof of a terrorist group should be addressed or what types of conduct should be added to the list of terrorist offenses. The European Council has concluded in February 2015 that the EU and its Member States have to put more emphasis on the prevention of terrorism.24
Council of Europe The Council of Europe adopted the Convention for the Prevention of Terrorism in Warsaw, 2005. The Convention requires States to criminalize activities such as training, 25 recruitment,26 complicity or contribution27 to a terrorist offense. What constitutes a terrorist offense is not defined in the Convention. In article 1 of the Convention any act within the meaning of terrorism as listed in the appendix can fall within the scope of a terrorist act. In the appendix ten Conventions are listed which address terrorism either directly or indirectly, such as the International Convention for the Suppression of Terrorist Bombings and the Convention for the Physical Protection of Nuclear Material. The Warsaw Convention led to the amendment of the Council Framework Decision of 2002. What constitutes training is defined comprehensive: procurement of opportunity, means or intelligence with terrorist intent.
23 Eurojust Report (n 22) 5. 24 Conclusion of the Council of Europe on the Foreign Fighters and Returnees Discussion Paper Document 15715/2/14 Rev 2. 25 Warsaw Convention on the Prevention of Terrorism [2005] (Warsaw Convention) art. 7. 26 Warsaw Convention art. 6. 27 Warsaw Convention art. 9.
9 Section 2: ISIS in perspective
In the previous section the international obligations to criminalize the phenomenon foreign fighters were laid out. Security Council Resolution 2178 (2014) specifically refers to criminalization of individuals that travel or attempt to travel to ISIS. The rationale behind this is not that the journey to ISIS controlled areas is criminal but that the activities that might be carried out when these individuals arrive in ISIS are reprehensible. The emphasis is thus placed on the ideology and conduct of ISIS. In this section the ideology of ISIS is analysed, to get a better understanding of what the aims of ISIS are and what the essence of the ideology of ISIS is. What is the ideology of ISIS and what constitutes the threat ISIS poses not only in the Middle East but also in the country of origin of foreign fighters?
Radical Islamic terrorism is different from other terrorist organisations such as ETA in Spain or IRA in Ireland as it operates worldwide. This makes it more difficult to predict time or place of an attack as well as possible offenders.28 Islamic terrorist groups often use violence in the name of jihad, such as ISIS and al Qa’ida. In this section the notion of what jihad is will be discussed, after which a short overview will be given of al Qa’ida and the rise of ISIS as both organisations have a joint history. Lastly, the differences and similarities between al Qa’ida and ISIS will be discussed.
What is jihad? Jihad is often associated as part of a violent offensive ideology, but this is not necessarily the case. The term jihad in Arabic means struggle or striving.29 Jihad within the Qur’an means fighting against the unbelievers.30 Originally jihad was justified only as a means of self- defence, but it has evolved over centuries into distinct interpretations, from defensive religious war to a spiritual struggle.31 These differences in interpretations can be explained by the emphasis on either the warlike aspect of jihad or on the spiritual and social aspect of jihad.32 The term jihad, due to its different interpretations, is thus prone to misuse as a justification for violence.33 As will appear below, the legitimacy of the use of force in the name of the Qur’an is dependent on the reading of jihad and differs amongst jihadist
28 Frank Bovenkerk, Een Gevoel van Dreiging: Criminologische Opstellen over Terrorisme (Augustus Amsterdam 2011) 184. 29 Mahmoed C Bassiouni, ‘Evolving Approaches to Jihad: from Self-Defence to Revolutionary and Regime-Change Political Violence’ (2007-2008) 8 Chi. J. Int'l L. 119, 122. 30 Bassiouni (n 29) 128. 31 Bassiouni (n 29) 144; Anthony N Celso, ‘Cycles of Jihadist Movements and the Role of Irrationality’ (2014) 58 Orbis March 2014 229, 233. 32 Bassiouni (n 29) 131. 33 Bassiouni (n 29) 144.
10 movements. Jihad in itself thus does not have to be an equivalent to violence, only jihad in combination with offensive violent conduct and interpreted as a religious war is an equivalent to, from a Western perspective, reprehensible violence.
Al Qa’ida and the emergence of ISIS Al Qa’ida is one of the oldest jihadist movements. The durability of al Qa’ida can be explained by its flexible and loose connections between disparate groups, as it supports groups operating in conflict areas and/or areas with political instability.34 There is a central or global al Qa’ida organ, al Qa’ida Central (hereafter AQC), which is led by Ayman al- Zawahiri and has allies with branches such as al Qa’ida Iraq (hereafter AQI). AQC originated from the global jihad movement of Osama Bin Laden.35
AQI was catalysed by the US invasion in Iraq.36 The beginning of the rupture between AQI and AQC began to surface when AQI, then still with the support of AQC, targeted not only the Shiite population in Iraq, but also religious and political Muslim leaders. AQI failed to take into account the status of combatants or non-combatants. This was justified or approved by AQC as long as the US occupied Iraq, but the violence against non-combatants and Muslims continued after the withdrawal of the US. In 2010 Bin Laden noted that the tactics of AQI did not resonate AQC, as the tactics of AQI did not entail restraint and earning social capital, two elements that are essential for AQC for total victory.37 AQI tactics also entailed takfiri, branding all non-followers as apostates, thus also targeting Muslims that do not support the strict interpretation of Sharia law of AQI.38 AQC criticized the use of violence by AQI against Muslims and targeting Islamic countries that were not in conflict at the time.39 The attacks on other Muslims were labelled as religious mistakes by AQC, contrary to the objectives of the jihad.40Ayman al-Zawahiri, AQC leader, shared Bin Laden’s concerns in 2013. These differences in legitimization of violence can be explained by a different reading of the term jihad in the Qur’an, as mentioned above. With the withdrawal of the United States in Iraq, the legitimate use of force as a means of self-defence ceased, according to AQC.
34 John Turner, ‘Strategic Differences: Al Qaeda's Split with the Islamic State of Iraq and al-Sham’ (2015) 26 Small Wars & Insurgencies 208, 209. 35 Turner (n 34) 208. 36 Celso (n 31) 238. 37 Turner (n 34) 214. 38 Celso (n 31) 240. 39 Turner (n 34) 214. 40Turner (n 34) 214.
11 AQI absorbed a jihadist movement in Syria, Jabhat al-Nusra, expanded its operations into Syria and rebranded itself the Islamic State of Iraq and the al-Sham (ISIS).41 The leader of ISIS is Abu Bakr al-Baghdadi. The latest development is the expansion of ISIS to Afghanistan.42
ISIS ISIS is arguably the most successful jihadist actor to establish a caliphate, as it controls territory in Iraq and Syria and performs some functions of a state,43 such as a sharia police, al- Hisba, which has been established to ensure that the sharia is carried out in a strict manner.44 ISIS envisages a utopian imagination of the Muslim state (ummah) and the Islamic empire (Caliphate).45 The notion of modern state hood is thus rejected and replaced by an Islamic statehood that transcends nationalism.46 ISIS refers to the political ideal regime, in the true spirit of Islam identical to the first Caliphate, which emerged after Mohammad the Prophet, from 623 to 661.47 The Islamic State uses a specific language and terminology to influence people.48 An example of this is a speech of ISIS in which Western Muslims were accused of being infidels and received threats that their crops would be destroyed and that they would be poisoned, which appear to be medieval expressions.49 The Qur’an is interpreted literally by ISIS, and thus not transposed to the present time, which explains use of medieval punishments such as crucifixion, decapitation and slavery.50 The Islamic State is based on specific religious believes,51 and desires a recreation of a mythical past.52 The utopian image of the Islamic State can be affiliated with nostalgia for the majestic past of the Islamic empire.53 Unique to ISIS is the excessive use of violence and terror against individuals and Muslim communities within the territory of ISIS. 54 The notion of statehood for ISIS is different from the international notion in that ISIS does not accept boundaries, but sees its territory as elastic,
41 Celso, (n 31) 242. 42 Fazul Rahim and Alexander Smith, ‘ISIS-Linked Fighters Tighten Grip in Afghanistan, Outmatch Taliban Brutality’ (2015) NBC News http://www.nbcnews.com/storyline/isis-terror/atmosphere-terror-isis-linked-fighters-tighten-grip-afghanistan-n347801> (1 May 2015). 43 Turner (n 32) 209. 44 Turner (n 32) 219. 45 Yosef Jabareen, ‘The Emerging Islamic State: Terror, Territoriality, and the Agenda of Social Transformation’ (2014) 58 Geoforum 51, 51-52. 46 Jabareen (n 45) 52. 47 Jabareen (n 45) 52. 48 Jabareen (n 45) 54. 49 Greame Wood, ‘What ISIS Really Wants’ (2015) The Atlantic
12 ever expanding and not confined by boundaries.55 This concept of boundaries is a means to the goal of world expansion of the Caliphate envisioned by ISIS.56 This expansionist regime can be compared to the regime of the Soviet Union or the Nazi regime, envisioning world domination.57
The goal of ISIS to create an Islamic State is thus not new in any way, over history many jihadist movements have tried, and AQC has the same goal, though the means differ. ISIS is winning the recruitment battle over AQC.58 Most ISIS fighters are male and young, between the ages of 18 to 29.59 ISIS recruits through YouTube and twitter, making participation open to everyone and widening the demographics of ISIS.60 The estimated number of foreign fighters in ISIS differs from a few hundred to several thousands.
Differences and similarities AQC and ISIS AQC has not denounced violence as a means to achieve its goals; rather the disassociation with ISIS can be described as a new phase in jihadist conflict. Where violence was essential in bringing jihad to the global stage, the emphasis is now on creating a foundation for the existence of a viable state at the centre of the Middle East.61 The goal of ISIS and AQC is to create a viable Islamic state in the Middle East that overlaps. However there is a difference in tactics of ISIS and AQC. For ISIS, the emphasis is on coercion and control, whereas the AQC emphasizes social capital building as a foundation for an Islamic state. ISIS has become a pariah amongst the broader jihadist movements.62
AQC’s strategy thus differs from ISIS in that AQC envisions an Islamic caliphate with the support of the Muslim population, to enhance the legitimacy of an Islamic empire.63 ISIS envisions an Islamic caliphate by means of violence, and strives for Islam in its purest and strictest form. Unlike AQC, the apocalypse way of thinking is central to the Qur’an according to ISIS.64 Whereas AQC often uses cryptic terminology in interviews on future plans and attacks, ISIS is open and very transparent with their plans.65
55 Jabareen (n 45) 54. 56 Jabareen (n 45) 54. 57 Jabareen (n 45) 55. 58 Turner (n 34) 220. 59 Celso (n 31) 260. 60 Celso (n 31) 261. 61 Turner (n 34) 216. 62 Celso (n 31) 264. 63 Turner (n 34) 208-209. 64 Wood (n 49). 65 Wood (n 49).
13 The ideology of ISIS is in short twofold. First of all ISIS envisages world domination, a worldwide caliphate with a very strict sharia law enforcement. This vision has strong totalitarian features as ISIS dictates the conduct and believes of its inhabitants in public and private sphere. The interpretation of the Qur’an that is to be complied with within ISIS is the literal interpretation dating from the time of writing of the Qur’an, and is thus not transposed to the present. Second, the means to achieve this goal is to fight all unbelievers, including Muslims that do not adhere to the religious ancient interpretation of the Qur’an of ISIS. ISIS thus interprets jihad as a religious war, by means of violence that is not restricted to defence but also entails active warfare. Due to this extremely violent ideology, ISIS is alienating itself from other jihad movements in the Middle East such as Al Qa’ida.
14 Section 3: The Fear of Returning Foreign Fighters: a Historic Perspective
As discussed in the previous section, ISIS has strong totalitarian features, it envisages world domination and a strict application of the Sharia law, prescribing public and private life. Transition foreign fighters are not a new phenomenon as will appear below. From a historical perspective it seems that foreign fighters are an issue based on the assumption that these individuals pose a threat to the public order in their country of origin. In this section there is a short overview of the position of foreign fighters in the Spanish Civil War, internationally perceived as the struggle between fascism and democracy. The Spanish civil war is, much like the ISIS conflict, a war where ideology played a central role. During this war foreign fighters from throughout Europe and beyond participated, and many individuals throughout Europe were recruited. The estimated number of foreign fighters was 35.000 to 40.000.66 Foreign fighters were motivated to participate in the Spanish Civil War to fight for freedom and democracy, but it was nearly impossible to verify on which side a returning foreign fighter had fought and what activities were carried out. There was a fear that fascism would also set foot in the Netherlands. The parallel with ISIS is thus the threat of returning foreign fighters and the difficulty to establish the chain of causality.
Spanish civil war The Spanish civil war took place from 1936 to 1939 and was perceived not as an internal conflict but as an international affair, due to the worldwide struggle between communism and fascism, democracy, dictatorship and/or of belief and atheism.67 The two opposing factions during the war were the democratic republicans and the fascist nationalists of general Francisco Franco. The Dutch government remained neutral throughout the conflict and did not encourage participation in the civil war of Dutch citizens. One way the Dutch government prevented people from entering the war was by making it nearly impossible to leave the country.68 In order to cross the Dutch borders, a stamp was required that one could only obtain if they could make plausible that they would not take part in the armed conflict in Spain, or request for a renewal of passport would be refused.69 This however had little effect, as travelling to Spain without a passport was also possible.70 Next the recruitment for participation in the Spanish civil war was penalized in the Netherlands, as part of a broad
66 Maarten Prak, ‘Buitenlandse Zaken, de SDAP en de Spaanse Burgeroorlog’ (1980) Utrechtse Cahiers, 58. 67 Margreet Braams, Eddie Ribberink, Ad Zwaga, ‘Nederland en de Spaanse Burgeroorlog’ (1982) Instituut voor Geschiedenis der Rijksuniversiteit Groningen, 95. 68 Prak (n 66) 59. 69 Prak (n 66) 59. 70 Braams (n 67) 24.
15 approach of the international Non-Intervention Commission, to which the Netherlands, the United Kingdom, France and several other European countries were parties.71
Returning or repatriated foreign fighters were not allowed to re-enter the Netherlands or were denied the Dutch nationality, unless public order and safety would not oppose re-entry of the foreign fighter in question.72 Repatriation of foreign fighters was however a duty imposed by the Non-Intervention Commission.73 In several European countries, such as Sweden, France, Norway and Denmark, returned foreign fighters were not prosecuted or deprived of their nationality. In Italy and Germany the foreign fighters were not criminally prosecuted but their nationality was withdrawn.74 Braams, Ribbink and Zwaga noticed that the Dutch government made the contradictions of ideology in Spain a central issue of discussion in the Netherlands.75 There was fear that fascism would set foot in the Netherlands. It was nearly impossible to investigate what side the returning foreign fighters fought for, or what activities they carried out, all returning foreign fighters were deprived of their nationality and kept on a close watch by the department of justice. If the individuals had fought on the ‘wrong’ side, they could supposedly form a threat to public order and safety. There was a fear that there would be spies among the returning foreign fighters, and the ‘red danger’ (as defined by fascism) would set foot in the Netherlands. The fear for a fascist coup d’état in the Netherlands incited the refusal of the Dutch nationality to returning foreign fighters. The causality chain was however very difficult to establish; it was difficult to prove wrongful conduct during the Spanish Civil war and even more to prove that there was intent to set forth a reprehensible ideology in the Netherlands through violent means. Any conviction would thus entail penalization of ideology, not of conduct, as this was often impossible to prove.
71 Braams (n 67) 24. 72 Prak (n 66) 60. 73 Braams (n 67) 24. 74 Braams (n 67) 25. 75 Braams (n 67) 97.
16 Section 4: Preventive Anti-Terrorism Legislation put into Perspective: the Emergence of the Risk Society and the Interference with the Freedom of Choice
In this section the role of criminal law and justice in society will be discussed to get a better understanding of precautionary criminal law addressing terrorism and to be able to place the anti terrorism provisions in context. First, the emergence of the risk society will be discussed. Secondly, the justifications for state interference with the freedom of choice are analysed. As traveling to ISIS is prohibited, the freedom of choice of individuals to travel to the conflict area is limited. Feinberg has defined four principles that can justify criminalization of conduct. The legitimacy of the anti terrorism legislation will be discussed on the basis of Joel Feinberg’s four principles of law; the harm principle, the offense principle, legal moralism and legal paternalism.
The emergence of the risk society As several authors have noticed, there seems to have been a shift in accountability for damage or detriment in society. Beck argues that there was a shift in the 19th century from a culture of culpability, where damage is seen as an individual disadvantage, to a risk society, where damage is elevated to the status of a social problem.76 Preventing damage became the first priority of the criminal justice system. The risk society accepts that valuable social systems can cause damage, as long as there is a balance between the damage and the gain.77 If governments are mandated a duty to prevent uncertain risks, it is inevitable that small aspects of social life are subject to regulation.78 Governments are thus not only focussed on reducing crime but also enhancing the subjective experience of security. 79 Risks are social constructions, with a central position for threats that are affiliated with the Western way of living.80 Beck proposes that risk is defined as a systematic way of dealing with hazards, the future consequence of human action and insecurity is a consequence of the globalization of doubt.81 Risks have two components, the already destructive consequence of the risk and the potential element of the risk. The potential element is a future component that is to be prevented.82
76 Ulrich Beck, Risk Society. Towards a New Modernity (Sage Publications London 1992) 80-81. See also Roel Pieterman, De Voorzorgcultuur, streven naar veiligheid in een wereld vol risico en onzekerheid (Boom Juridische Uitgevers The Hague 2008) 55. 77 Pieterman (n 76) 64. 78 Pieterman (n 76) 120. 79 Pieterman (n 76) 121. 80 Beck (n 76) 19. 81 Beck (n 76) 33; Ulrich Beck, World Risk Society (Polity Press Cambridge 1999) 3. 82 Beck (n 76) 33.
17 There is often a discrepancy between the rational risk assessment of experts and the (irrational) social concern of society.83 Beck points out the loss of scientific monopoly on rationality when it comes to the definition of risks.84 Beck argues that there are no experts on risks, as there are always competing claims, interest and angles that have to be taken into consideration to define a cause and effect, instigator and injured party.85 Although scientists are presumed to do research with an objective rationality, they are too subconsciously reliant on social expectations and values. 86 Any claim of objective hazard assessment is an contradictio in terminis according to Beck, as risk assessments are based on speculative assumptions and probability statements, as an ethical point of view is required in order to discuss risk meaningfully.87 Thus, there is no objective scientific rationality of risk. The power of the UN Security Council to determine what constitutes a threat to international peace or security can play a large role in the formulation of risks in the global society. Politics and social concern play a crucial role, as scientific hazard assessments are not required for determining a threat to international peace and security. UN Member States, which are bound by the Security Council Resolutions have to implement these resolutions and are inclined to include scientific hazard assessments in order to address the issue: which individuals and more specifically, what behaviour contributes to this hazard? When it comes to terrorism, the potential risk is predominant. A terrorist threat is often combined with uncertainty; when, where, which means. Politics of uncertainty lead to enormous expenditures on risk assessment and management that reveal the limits of risk-based reasoning and intensify uncertainty. Precautionary logics become pervasive and extreme security measures are invoked in the effort to pre-empt possible sources of harm.88 The fear of certain consequences combined with uncertainty about the conditions under which they might materialise, creates a moral obligation to take precautionary measures.89 The disadvantages of the proposed measures are disregarded, and collective safety is emphasized. The emphasis on the potential risk, instead of the criminal conduct, is evident in the criminalization of foreign fighters; preparatory acts are elevated to criminal behaviour by means of intent, with the justification of the imminent risk.
83 Beck (n 76) 58; Pieterman (n 76) 7. 84 Beck (n 76) 29. 85 Beck (n 76) 29. 86 Beck (n 76) 29. 87 Beck (n 76) 29. 88 Pieterman (n 76) 123. 89 Pieterman (n 76) 172-173.
18 The role of the UN in the shift toward a risk society In section 1 of this thesis the influence of the UN to criminalize foreign fighters was discussed, states are now required to prevent individuals from traveling to ISIS to diminish the scope of ISIS and to prevent possible contribution to terrorist acts. The UN thus has played a large role in the shift towards a risk society. Traditionally, within the requirements of the rule of law, national criminal law is based on individual criminal responsibility, in which harm is precisely described, mens rea has to be proven and causality must be determined. The UN Security Council, on the other hand, promulgate a different notion of criminal law, with emphasis on a global risk approach. 90 The traditional requirements for the rule of law are avoided in the international global risk approach, as macrostructures cannot be translated into the established individual patterns of criminal law.91 Instead of focussing on individual wrongdoing, there is a focus on potential collective perpetrators, as individual wrongdoing is difficult to prove.92 The preparatory acts that are urged to criminalize in order to suppress terrorism go further than the classical categories of attempt or instigation.93 Criminal law thus has become, under the influence of intensified calls on states to fulfil their duty to protect citizens against terrorism, an instrument to avert harm.94 The criminal justice system thus has obtained a function of preventing threats and violence, and can therefore no longer be considered as an ultimum remedium.95 UN Member States are required to comply with the Security Council Resolutions, while the notion of criminal law within international law is different from that in the national context.
The interference of government with the freedom of choice to travel to ISIS So far it is concluded that we live in a risk society in which governments are required to prevent detriment. In this paragraph the question that will be addressed is why States as a next step interfere with the freedom of choice to travel to ISIS or Syria. Formally, States have criminalized foreign fighters because they are under the obligation to do so, as appeared in section 1 of this thesis. But what is substantially the reason to prevent individuals from traveling to ISIS? In this paragraph the question why States are required to criminalize foreign fighters is addressed, again, but from a different point of view.
90 Stefan Braum, ‘Are We Heading Towards a European Form of ‘Enemy Criminal Law’?’ in Francesca Galli and Anne Weyenbergh (eds) Eu Counter Terrorism Offences. What Impact on National Legislation and Case Law? (Editions de l’Université de Bruxelles Brussels 2011) 239. 91 Braum (n 90) 239. 92 Braum (n 90) 240. 93 Braum (n 90) 240. 94 Marianne FH Hirsch Ballin, ‘Terrorism Causing a Shifting Responsibility in Criminal Pre-trial Investigation: from Repression to Prevention’ in Marianne FH Hirsch Ballin Jill EB Coster van Voorhout and Chana Grijsen (eds) Shifting Responsibilities in Criminal Justice, Critical Portayals of the Changing Role and Content of a Fragmented Globalizing Law Domain (Eleven International Publishing The Hague 2012) 25. 95 Hirsch Ballin (n 94) 25.
19 Whether or not this interference is acceptable depends on the chosen perspective. There are three schools that will be discussed, liberalism, legal moralism and legal paternalism. Liberalism in this context entails the autonomy of the freedom of choice, with autonomy as a core value. The idea that States cannot take sides on moral issues is fundamental to liberalism that is based on neutrality. 96 Legal moralism, as an alternative view, is the moral legitimization of the use of criminal law to prohibit acts not because they harm anyone, but because the act constitutes or causes evil of other kinds. According to Feinberg evil is any occurrence that is rather seriously to be regretted and that the universe is better off without it.97 There are two kinds of evil: legislative evils, evils that are reasonably foreseeable or preventable consequences of conduct, and theological evil such as natural disasters. Theological evils will not be discussed as the thesis focuses on human conduct. Legal moralism is thus always a reason of some relevance in support of a criminal prohibition according to Feinberg.98 There are two forms of legal moralism; a pure and impure form. The pure legal moralist is not concerned with the causality between the evil and the offense, the prohibition of the conduct is legitimate as it prevents the production of the evil.99 According to the pure legal moralist evil can entail immorality or sin without harm or offense if the evil is intuitively manifest and extreme. The evil is thus an evil within itself, regardless of the consequences of the conduct. The impure legal moralist sees evil as something that in the long run can cause immense harm. It thus presupposes an indirect harmfulness. 100 Legal paternalism is the interference of the government with the freedom of choice of individuals, in the interest of the actor itself (the actor would thus be better off were he or she does not act).101
Feinberg defines four reasons, which he refers to as principles, for liberty-limiting measures advanced by the State. Feinberg asks uses these principles to answer the question what sorts of conduct may rightfully be made criminal by the State.102 The moral relevance of the need to prevent harm to others is called the harm to others principle. The second principle is the offense principle that entails the necessity to prevent offense. The third principle is legal paternalism. This principle entails the prevention of harm to the person itself. The last principle is the legal moralism principle, which entails the necessity to prevent inherently
96 Ronald M Dworkin, A Matter of Principle (Hardvard University Press Cambridge 1985) 205. 97 Joel Feinberg, The Moral Limits of the Criminal Law, Harmless Wrondoing (Oxford University Press Oxford1988) vol 4, 18. 98 Feinberg (n 97) 38. 99 Feinberg (n 97) 8. 100 Feinberg (n 97) 9. 101 Feinberg (n 97) 3. 102 Joel Feinberg, The Moral Limits of the Criminal Law, Harm to Others (Oxford University Press Oxford 1984) vol 1, 3.
20 immoral conduct whether or not such conduct is harmful or offensive to anyone.103 The liberal position on the moral limits of criminal law only accepts the harm and offense principle when it is clearly formulated and qualified. Regarding preparatory acts, the inference to any of these principles is large, as there often has not been any harmful or offensive conduct (yet). Whatever reason provided, several assumptions have to be made to accept any of these reasons provided. These principles will be discussed briefly below.
Harm to others Feinberg defines the harm to others principle as the need to prevent harm to others. This is a morally relevant reason, but a controversy if it is the only valid liberty limiting reason, as only avoidable and substantial harm can rightfully be prohibited. 104 The harm needs to be sufficiently precise in order to be able to constitute a rightfully advanced reason. Without specification, the harm principle would allow unlimited state interference.105 Harm in this context can be understood in two ways, a non-normative sense or a normative sense. Harm in the non-normative sense means a setback to interest, whereas harm in the normative sense is a wrong, a violation of a persons rights. Feinberg argues that only a combination of the two can qualify as harm. The harm principle is however subject to subsidiarity, there has to be no other means available that is equally effective at no greater cost to other values.
Offense to others The offense principle is different from the harm principle as is does not concern injury but rather the mere mental state of dislike caused by conduct of another person. The principle cannot be invoked to address harmless conduct such as indecent exposure and ethnic slurs.106 The seriousness of the inconvenience caused to the offended party must be balanced against the reasonableness of the offending party’s conduct. Feinberg defines a distinct category of offenses, profound offenses, which form a deep, shattering or serious nuisance. The mere fact that the conduct occurs, even in private, can cause offense. The offense of profound offenses is impersonal, contrary to normal offense, and can considered as moral outrage. Like the harm principle, the criminal prohibition must be an effective means to the end pursued.
103 Feinberg (n 102) 4. 104 Feinberg (n 102) 12. 105 Feinberg (n 102) 12. 106 Feinberg (n 102) 13.
21 Legal Paternalism Legal paternalism is defined as the interference with the freedom of choice in the best interest of the individual. If autonomy were interpreted as personal sovereignty, true respect for autonomy would entail that fully voluntary decisions cannot be restricted. Legal paternalism thus restricts a person’s autonomy in the interest of its own good. Examples of legal paternalistic prohibition are the prohibition to gamble, or to use drugs.107
Legal Moralism Feinberg defines legal moralism as the moral legitimization of penalizing certain actions that cause neither harm nor offense to anyone, on the grounds that the committed acts constitute or cause evils of other kinds over the long run.108 The reasons most commonly progressed by states are the need to preserve a traditional way of life, to enforce morality, to prevent wrongful gain and to elevate or perfect human behaviour.109 A stricter definition of legal moralism is the legitimization of criminalization of certain acts on the basis that the act is inherently immoral.
The difference between the harm principle and legal moralism is that in the latter the state is concerned with the harmful behaviour, whereas in the first case the state is concerned with the immoral character of the behaviour.110 MacCormick however argues that a strict distinction between the two is purely theoretical, as laws based on the harm principle are meant to do more than prevent harm, as any liberty limiting principle is enforcement of some morality.111 The criminal law is thus not just a means to prevent harm but inherently also an instrument to reinforce morality.112 The harm principle however, is substantially narrower, as it cannot address all kinds of wrongdoing. Legal moralism, on the other hand can address any kind of evil, as evil as such is vaguely determined. Feinberg defines evil as any occurrence that is to be regretted, in which the universe would be better off without this evil.113 Legal moralism in the abstract is thus always a reason of some relevance in support of criminal prohibition, as evils are by definition something to be regretted.
107 Feinberg (n 102) 13. 108 Feinberg (n 97) 3. 109 Feinberg (n 97) 3. 110 Feinberg (n 97) 12. 111 MacCormick in Feinberg (n 95) 12. 112 Feinberg (n 95) 13. 113 Feinberg (n 97) 18.
22 Apart from the liberal point of view any combination of reasons is possible. Dworkin argues that a new type of reason has surfaced in between legal moralism and legal paternalism; moral paternalism. The justification for interference is not that the person itself is better off health or wealth wise, but that the individual becomes a better person morally.114 The interest thus goes further than legal paternalism and legal moralism, as it is not the person itself that is better off.
Reasons provided in Security Council Resolutions In the UN Security Council Resolutions, concerning ISIS and/or foreign fighters in particular, the following formulations are used. In UNSC Resolution 2161 (2014) the Security Council emphasises that terrorism in general is unjustifiable in character, and that the acts of al Qa’ida and movements associated with al Qa’ida are causing the deaths of innocent civilians, destruction of property and undermining stability.115 In the preamble of UNSC Resolution 2170 (2014) the negative impact of the presence of ISIS is emphasized. Reference is made to millions of displaced people and the devastating humanitarian impact on civilians. States are urged to protect the civilian population that is affected by ISIS. In this Resolution the concern for the flow for foreign fighters is mentioned. In the first two paragraphs of the Resolution the acts of ISIS, which are condemned, are listed, such as mass executions, enforced displacement and attacks on schools. In UNSC Resolution 2178 (2014) foreign fighters are considered a threat to international peace and security in itself, as foreign fighters increase the intensity, durability and intractability of the conflict and can pose a threat to the country of origin. The Security Council calls upon foreign fighters to disarm and cease all terrorist acts. The threat posed by foreign fighters is to be addressed comprehensively by addressing the underlying factors of the violent ideology. This comprehensive approach entails preventing radicalisation, inhibiting foreign fighters to travel, promoting political and religious tolerance and economic and social development by facilitating reintegration and rehabilitation. In Resolutions 2170 and 2178 (2014), violent extremism is condemned.116
As to terrorism in general the following principles of Feinberg are applicable. By referring to the death of civilians, the harm to others principle is clearly invoked. The Security Council refers to the unjustifiable character of terrorism in general, and more specifically in Resolution 2170 (2014) to the attacks on schools, mass executions and enforced
114 Gerald Dworkin, ‘Moral Paternalism’ (2005) 24 Law and Philosophy 305, 319. 115 UNSC Res 2161 (17 June 2014) UN Doc S/Res/2161. 116 UNSC Res 2170 (2014) §1, UNSC Res 2178 (2014) §1.
23 displacements. These acts can constitute profound offenses, as the offense taken is impersonal as it does not affect the individual directly in Western countries, and can cause moral outrage. Terrorism in general can arguably be considered as causing moral outrage by definition, thus the offense principle always applies in legislation concerning combatting terrorism. As regards to foreign fighters, the legal moralism principle can also be applied to the Resolutions. The mere fact that there are foreign fighters, is a threat to international peace and security as the influx of foreign fighters increases the intensity and duration of the conflict, and can thus indirectly or in the long run cause harm. Legal paternalism as such does not appear to be an underlying reason for the travel ban of foreign fighters. Indirectly it could arguably be a reason, as any person is probably safer not going to a conflict area, but this would require a broad interpretation of the Resolutions.
If we turn to foreign fighters and the prevention of travelling to ISIS or Syria in specific, there is no concrete terrorist offense. The harm and offense principle can only be advanced under the assumption that the individual will commit a terrorist act or contribute to acts that form deep, shattering or serious nuisance. In the Security Council Resolution 2187 (2014) states that foreign fighters contribute to the intractability and durability of the conflict, and can pose a threat to the country of origin. It thus clearly refers to the threat of foreign fighters in ISIS, and of returning foreign fighters. Harm requires wrongdoing, but the mere contribution to the durability of a conflict is qualified as harm, the harm principle is stretched to its limits, covering the most abstract forms of harm. The same applies to the offense principle. As there is only harmless conduct, as the preparatory activities do not cause harm to anyone, therefor the principle cannot be invoked. The offense principle is only applicable under the assumption that the individual will contribute to a terrorist act, as this would constitute profound offense. Legal paternalism as a reason for criminalization does not, as mentioned, seem to be advanced in the Security Council Resolutions. Legal moralism is perhaps the only reason that applies to foreign fighters. By referring to the threat posed by foreign fighters in their country of origin, it can be inferred that the traditional western way of life is possibly endangered by the ideology of ISIS. The traditional western way of life is to be preserved. But then again, this would entail that the presumption that the individual will contribute to the terrorist acts of ISIS and therefore causes harm there, or when returning, here.
There are of course differences in the preparation of the journey of foreign fighters to ISIS. As will appear in section 6, terrorist or criminal intent can suffice already during preparatory
24 activities. The offense principle and harm principle are, in for example the case that the individual has learned how to manufacture a bomb, more precise as it can be proven that the individual wants to manufacture a bomb. The case law on foreign fighters however does not show that future foreign fighters all have terrorist intent. In many cases the evidence provided consists of harmless conduct such as traveling, attending meetings, possession of large sums of money. As preparatory acts can cover any act, the harm and offense principle should place an upper limit on what can fall within the scope of criminal law. If there the alleged future, possible harm and offense were unspecified, criminalization of foreign fighters would entail the pure criminalization of intent and dolus eventualis. Legal paternalism is applicable in the abstract, as any individual is presumably better off not travelling to a conflict area, but this reason is not advanced in the Resolutions.
Reasons provided in EU Framework Decisions As for the EU, the Council Framework Decisions contain comparable formulations to the Security Council Resolutions. In the preamble of Council Framework Decision of 2002 it is stressed that terrorism is one of the most serious violations of universal values of human dignity, liberty and equality. In the preamble, paragraph 8, there is a specific reason provided for the introduction of anti terrorism measures; the protection of victims of terrorist acts, as these victims are especially vulnerable. The harm to others principle thus appears to be the most important reasons provided in the Council Framework Decisions. We must keep in mind however, as argued above, that foreign fighters who have not travelled to ISIS yet have not caused harm or offense yet, and only by assuming that these individuals will do so, the harm and offense principles are applicable.
Interim conclusion In this section the influence of international law on national criminal law is discussed, with the emergence of the risk society, in which governments are assigned the new task of not only preventing actual harm but also the task of preventing threats. The UN Security Council considers foreign fighters a threat to international peace and security, and the Security Council urges States to prohibit individuals to travel and join ISIS. In this section the underlying reasons for such prohibition were analysed, as it constitutes an interference with the freedom of choice. The reasons provided for criminalization of terrorist behaviour in the Council Framework Decisions and Security Council Resolutions were analysed in this section. We can only apply the principles of Feinberg to foreign fighters if we fill in the gaps
25 of what these individuals are presumably going to do there. These principles are applicable only if we assume that the individuals will contribute to terrorist acts in ISIS. Joel Feinberg’s liberty limiting principles aim to answer what sorts of conduct the State may rightfully make criminal. Harm, offense, legal paternalism and legal moralism can legitimize State interference, but in the case of foreign fighters the harm and offense principle are not specified. Legal paternalism is applicable in the abstract, as arguably anyone is better off not travelling to a conflict area. Dworkin’s moral paternalism can arguably be applied, as the Security Council condemns violent extremism and human rights law and fundamental freedoms are promoted, the person is thus morally better off. Without specification of what harm or what offense the preparatory acts of foreign fighters entail, these reasons cannot serve as a basis for criminalization. The other two reasons, legal moralism and legal paternalism, do not seem to be advanced in the Security Council Resolutions or Framework Decisions.
The essence of this section is that if the State interferes with the freedom of choice the alleged harm and offense needs to be more concretized, as the mere endangerment of risk by unspecified conduct will not suffice. Only if the individual contributes to acts of ISIS, it contributes to specified harm. If not, then all that is left is ideology and the mere ideology is criminalized. The causal link is presumed because individuals have a certain ideology, and the causal link is thus established by ideology only. This will be discussed further into detail in the next two sections.
26 Section 5: The Limits of Precautionary Criminal Law
The increasing use of precautionary criminal law is one of the features of the risk society. In this section the role and boundaries of precautionary criminal law will be discussed. In relation to the previous section, the question is asked what needs to be proven in order to establish the causal link between the preparatory acts of the individual and the possible terrorist act in ISIS. As mentioned before, there are different forms of participation. There are individuals that sympathise with ISIS, there are individuals that radicalize and/or join ISIS and those that join ISIS and use violence. Determining which individuals will use violence in the future is nearly impossible, but the distinction is of great importance as the boundaries of criminal law are stretched due to the emphasis on the intention of the suspect. In the previous sections it has been discussed why States criminalize the phenomenon foreign fighters, and what the legitimacy issues of the criminalization are. In this section the implications of the criminalization on precautionary criminal are discussed. The question that is addressed is ‘what needs to proven to qualify preparatory criminal acts?’.
Precautionary criminal law Precautionary criminal law is designed to protect the core values of civil society: harmonious co-existence. 117 The core values of the Western society are, amongst others, stability, predictability, peace, security and public order.118 Precautionary criminal law is closely associated with the risk society as precautionary criminal law is aimed at the prevention of uncertain detriment or hurt, which might take place in the future. Scientific knowledge becomes less of importance as the uncertainty increases.119 The degree of precautionary criminal law is thus dependent of the degree of concern about the subject. The concern for potential detriment or damage must be based on reasonable presumptions and the measures implemented must be proportional to the protected interest.120
In order to influence choices of individuals, intervention at an early stage is required. In the risk society a new type of preparatory act has emerged; advanced preparatory acts. Prevention of this type of act is not focussed on prevention of a specific act only, but also on the prevention of a possible risk.121 In substantive criminal law harm is replaced by danger, and
117 Pieterman (n 76) 9. 118 Pieterman (n 76) 9. 119 Pieterman (n 76) 37. 120 Pieterman (n 76) 37. 121 Braum (n 90) 240.
27 danger is interpret as a risk that may create danger. 122 Guilt and responsibility are disconnected from the individual and are replaced by collective risk.123 Transposed to the issue of foreign fighters, the foreign fighters are as a phenomenon seen as a collective risk, a risk that might create danger, either in their country of origin, Syria or ISIS. Galli concludes that there is a shift from legally bound investigations to general and flexible surveillance of potential risk, from modern prevention to post-modern social control, possibly leading to overall social control.124 The prevention of future crimes is arguably only appropriate when taken in response to past wrongdoings that are attributable to the accused. The absolute goals of punishment (retribution, atonement) and the principle of culpability place an upper limit on the various criminal law based modes of restraining liberty, but do not provide them with a general constitutional legitimation. 125 Although it is permissible to take security into consideration, doing so in the context of purely preventive criminal law harbours the danger of a lack of limits.126 A consequence of precautionary criminal law is that the pre-trial investigation is not about truth finding of a committed crime, but rather the construction and de-construction of social dangerousness.127 In the risk society criminal justice is used as an instrument to regulate the present and future, and not to punish past behaviour.128
Sieber poses the question whether preventive security criminal law provisions in the run up to criminal activity are compatible with the aims and concepts of criminal law.129 Sieber poses these questions in the context of the German Criminal Code, but are equally applicable to other European civil law countries. The rejections of alternatives to measures of preventive detention do not, taken alone, justify the criminal model put forward.130 Laws that permit intervention for preventive purposes cannot serve as the basis for repressive criminal law responses, even if they have been labelled criminal law. The basis for criminal responsibility has to be culpability and wrongdoing.131 If these limits do not apply, the intention of individuals becomes the central feature of the criminal provision. The question that then rises is where the boundary between mere suspicion and sufficient evidence lies to conclude that an
122 Braum (n 90) 241. 123 Braum (n 90) 249-250. 124 Braum (n 90) 241. 125 Sieber (n 3) 258. 126 Sieber (n 3) 259. 127 John AE Vervaele, Epilogue in Marianne FH Hirsch Ballin Jill EB Coster van Voorhout and Chana Grijsen (eds), Shifting Responsibilities in Criminal Justice, Critical Portayals of the Changing Role and Content of a Fragmented Globalizing Law Domain (Eleven International Publishing The Hague 2012) 221. 128 Vervaele (n 123) 221. 129 Sieber (n 3) 255. 130 Sieber (n 3) 258. 131 Sieber (n 3) 260.
28 individual is preparing a terrorist crime. In the next paragraphs the criminal wrongdoing and endangerment of legal interest will be discussed.
Criminal wrongdoing Criminal wrongdoing entails harm or endangerment of legal interest. As has been concluded in the previous section, in the case of foreign fighters who have not travelled yet, there is no harm and thus only a possible endangerment of legal interest. In order to establish a causal link the individual must create the condemned and forbidden risk to the protected legal interest, and the breach of the legal interest must be attributable to the alleged offender.132 If the anticipatory criminal law goes beyond the injury to the protected legal interest of the individual it can be justified by recognizing that criminal wrongdoing is already occurring when the legal interest is endangered by risky conduct.133 The emphasis is placed on the act and not the result; thus it is a prohibition of conduct. Receiving terrorist training fall within this category; gaining knowledge on how to manufacture or utilise weapons or bombs is considered as risky conduct in itself. The scope of a terrorist training is comprehensive, as it can cover any activity that relates to gaining knowledge about terrorism and/or terrorist activities. But when the individual wants to travel to ISIS and has not gained any knowledge on how to carry out terrorist activities such as manufacturing bombs or weapon employment, there is no specified criminal wrongdoing. Individuals are then possibly prosecuted on the charge of preparation of murder, without specification of where, when and whom. If we turn to the threat of ISIS here, as a justification for criminalization, harm is even less specified as it presumes that individuals will further radicalize in ISIS, participate in terrorist activity and wish to continue that ideology and activity when they return. Even if we assume that an individual that travels to ISIS has the intent to contribute and participate in violent acts, it is another thing to assume in advance that once the foreign fighter returns, it will proceed these alleged acts. This would entail placing the emphasis not on intent but on ideology, as intent surely cannot be established. The preparatory acts to travel to ISIS are, as will appear in the next section, already difficult to link with criminal wrongdoing in ISIS, let alone to criminal wrongdoing once returning. The mere fact that someone supports ISIS ideology would then be subject to criminalization.
ISIS conducts terrorist acts and large scale human rights violations, but the foreign fighter that has not travelled to ISIS has not. The question is whether there is a causal link between the
132 Sieber (n 3) 261. 133 Sieber (n 3) 262.
29 conduct of the individual and the forbidden risk. The acts of ISIS are not attributable to the foreign fighter, as he has not participated yet, and even if the foreign fighter participates, it is uncertain whether he commits criminal wrongdoing himself. The conduct of foreign fighters in itself appears to be a stretch to qualify as wrongful conduct as the activities do not meet the threshold of risky conduct. The intent arguably makes the conduct risky, but this would entail penalizing the intent rather than the risky conduct in itself. The future foreign fighter is thus equated with the primary offender in advance, as its intention is considered risky. The dolus specialis, which is required for terrorism, is replaced with dolis eventualis.
Endangerment of legal interest What entails endangerment of legal interest? As mentioned, the mere occurrence of a prohibited risk to a legal interest in itself in not sufficient to establish criminal wrongdoing.134 If a specific legal interest is not yet breached but merely endangered, an additional step or criterion of legitimization is necessary, as the causal link is not as easily established. There are three types of endangerment offenses; objective danger creating offenses, planning offenses and cooperation offenses.135 Objective danger creating offenses entail an objective dangerous situation that the offender creates, but has no control over. For planning offenses the intention to commit an offense is the endangerment of the legal interest. Cooperation offenses entail a combination of the two offenses previously described, the decision to commit an act and the participation of more than one offender. If the endangerment and potential harm is not the result of one offender alone, but of a combination of offenders, as is the case with cooperation offenses, the justification for anticipatory criminal law lies within the fact that if numerous offenders would undertake the prohibited act, the legal interest would be harmed.136
There has to be a risk assessment to justify penalizing preparatory offenses. The following steps have to be taken in order to establish such risk.137 There has to be a clear relationship between the act and the offense, which cannot be fulfilled with everyday activities in order to avoid arbitrariness and penalization of the mere intention of an individual. Next, there has to be a manifestation of the decision to prepare the act, and significant danger must be created. This entails that experience has to indicate that this danger can no longer be countered later in time or by other means.
134 Sieber (n 3) 263. 135 Sieber (n 3) 263. 136 Sieber (n 3) 264. 137 Sieber (n 3) 270.
30
The acts of future foreign fighters are often a combination of ‘normal’ activities, and activities in which their radical way of thinking appear. The acts of foreign fighters vary from gathering money, to visiting meetings with radical imams or recruiters. The acts that can possibly fall within the scope of the anti-terrorism provisions are thus endless and mostly dependent on the intent of the individual. As mentioned previously, the Security Council labels foreign fighters as a threat themselves. According to this interpretation of the Security Council Resolution, foreign fighters create a forbidden risk themselves. But the question remains what legal interest they allegedly endanger. Supra individual legal interest, as described in the previous paragraph, requires an additional step for legitimization, it needs to be specified what it is that is endangered. Public safety in itself is not a sufficient argument. Foreign fighters endanger, at most, an abstract legal interest, namely the interest of unspecified individuals in the state of ISIS and in the region of the Middle East. There is no certainty that these individuals will inflict pain or harm to others or themselves, not every foreign fighter will actually use violence. The causal link is thus very difficult to prove, and additional steps have to be taken in order to legitimize state interference.
The objective endangerment offenses can apply to foreign fighters as the individual, by joining ISIS, arguably creates an objective dangerous situation and he or she has little control over the situation once the individual has joined ISIS. An argument to the contrary is that the individual does not create the dangerous situation, as the conflict is already taking place. The foreign fighter thus contributes to the conflict at most, and the question remains if the individual will conduct criminal wrongdoing himself, as has been explained in the previous paragraph. The planning offense only applies partially to foreign fighters, as there is often only the intention of joining ISIS, and not planning any specific attack or criminal activity. In some cases, individuals will have claimed to be prepared to use violence, but there is no specific target yet. For planning offenses, there has to be more than the mere intent to commit an act, the act has to be concretized. The cooperation offense, as a combination of the two previously described offenses, can only apply if the conclusion is that the two previous offenses apply to foreign fighters. Apart from this, also a combination of foreign fighters does not pose a clear delimited risk. As long as there is no concrete plan of the possible offenders, there is no clear risk. The risk assessment is thus already compromised as it is arguably unclear what type of offense is applicable to the conduct of the foreign fighters.
31 Turning to the risk assessment itself the following steps have to be taken. There has to be a clear relationship between the act and the protected legal interest, which cannot be fulfilled with everyday activities. If one establishes a relationship between foreign fighters and criminal wrongdoing in ISIS, it is one in the abstract, and thus certainly not a clear relationship, as there is no specified legal interest. The preparedness to use violence and the actual use of violence are two different things, the latter an actual act and the first the mere intent. The causal link is also compromised by the activities that form the basis of the evidence for prosecution. The activities are often every day activities, but are distinguishable by the intent of the individual. This brings us to the next criterion: there has to be an objective manifestation of the decision to prepare the act. The objective manifestation of fighting for ISIS can perhaps be concluded by a picture of an individual holding a gun, the internet history of an individual or its ties with radical imams or other foreign fighters, the fact remains that there is no clear wrongful act. The mere participation in ISIS does not entail actual harm to any specified legal interest. The third criterion is that the conduct must create a significant danger. As appeared in the Security Council Resolutions, the danger of foreign fighters lies, according to the Security Council, within the fact that the conflict is prolonged and intensified by the flow of foreign fighters. But then again, as the danger is in the abstract, this does not establish harm to any specific legal interest. The last criterion is that the danger cannot be countered later in time. Although it seems difficult to argue that foreign fighters can be stopped once they have joined ISIS, this criterion assumes that there is a specific legal interest endangered, which, as has been concluded, there is not.
Although it falls outside the scope of this thesis to address the question of whether the use of criminal law is effective to avert the possible harm, the matter is briefly discussed below. If prison sentencing is not effective, the legal interest is not effectively protected and can be an unjustified means.
The crucial element of terrorism is arguably the use of violence to achieve a certain goal. The distinction between methodology and ideology are thus of great importance. The methodology (the use of violence) is reprehensible, whereas the ideology of an individual is little of interest to the state as it falls within the freedom of conscience. Imprisonment will
32 therefore arguably not solve the issue underlying the crime, the radical line of thinking.138 A prison sentence is unlikely to have influence on perpetrators that have committed an act in order to comply to a supreme value ideology, as the perpetrator believes it is following divine orders.139 Moreover, there is a risk that the sentences will turn the terrorist into martyr, so that the prison sentence contributes to the reputation of the terrorist. An example of this in the Netherlands is the ‘Hofstadgroep’.140 Imprisoned members of this organisation had to be transferred repeatedly as other convicts worshipped them. Prison sentencing without de- radicalisation is thus arguably not effective, as it does not address the underlying ideology of the alleged offender. The rationale behind prison sentencing is arguably that the foreign fighters are off the streets, and cannot commit any criminal acts while incarcerated thus preventing the use of violence of the alleged terrorist. As to foreign fighters, the issue is that the methodology has not sufficed yet; there is the mere willingness to use violence. Next to this, as appeared in section 3, the penalization of foreign fighters does not stop individuals from travelling to their destination, may it be to Spain during the civil war then or ISIS now. As jihad is perceived a divine order, prison sentence is unlikely to avert the alleged risk.
Interim Conclusion Although it is permissible to take security into consideration, doing so in the context of purely preventive criminal law harbours the danger of a lack of limits and expansion of the punitive state.141 In this section the limits of precautionary criminal law were discussed, as the lack of limits affects the legitimization of the preventive legislation concerning foreign fighters. Advanced preparatory acts are by nature more dependent on intention as the acts occur in an early phase of the crime. Two aspects, criminal wrongdoing and protection of legal interest were discussed specifically. Without criminal wrongdoing, the principles nullem crimen sine culpa and lex certa are breached and the danger of penalizing the pure intent occurs. The protected legal interest must be specific to prevent unrestricted State interference or action in the name of public safety. In the second paragraph the criminal wrongdoing of foreign fighters was discussed. The conduct of future foreign fighters travelling to ISIS can hardly qualify as risky conduct. It might contribute to a forbidden risk, but the causal link between the conduct and the
138 Anna Oehmichen, Terrorism and Anti-Terror Legislation: The Terrorised Legislator? A Comparison of Counter-Terrorism Legislation and Its Implications on Human Rights in the Legal Systems of het United Kingdom, Spain, Germany and France (Intersentia Antwerp 2009) 391 refered to ‘sleepers’, no act has been committed but only radical thoughts. 139 Krisztina Kis-Katos Helge Liebert and Gunter G Schulze, ‘On the heterogeneity of terror’ (2014) 68 European Economic Review 116, 118; Bovenkerk (n 28) 199. 140 Bovenkerk (n 28) 199. 141 Sieber (n 3) 259.
33 forbidden risk is dependent on the intention and the actual ability. The threat the foreign fighter poses in ISIS is not specified. The inference to the threat ISIS poses here is even greater, as this requires the presumption that not only the individual will participate in terrorist activity in ISIS, but also that he or she will continue the violent ideology and activity when he or she returns. What needs to proven remains unclear and the intent of the individual becomes decisive to deduce possible wrongdoing or endangerment of legal interest in the future. In the next section the theory of attribution of wrongful conduct in practice is analysed, in order to see how Courts motivate and rule on this issue.
34 Section 6: Preventive Anti-Terrorism Law in Practice: Dutch Case Law
As discussed in the previous sections, under the influence of the European Union and the United Nations the limits of criminal law and justice are stretched to its limits and the intent of alleged perpetrators is becoming increasingly determining. In this section this thesis is compared to the practice in the Netherlands. First, the conduct of foreign fighters that have not travelled to ISIS yet is discussed. After that, three cases of Dutch Courts concerning terrorism and participation in a terrorist organisation will be discussed, to analyse how Dutch Courts have ruled so far on the preparation of terrorist offenses.
Although there is extensive media coverage on the issue of foreign fighters, the cases on foreign fighters throughout Europe are scarce. The EU Counter-Terrorism Coordinator reported in December 2014 that throughout Europe there had been no more than ten convictions.142 In the Netherlands there have been two convictions of foreign fighters in 2014, but the number of cases is increasing, there are currently 45 pending investigations in the Netherlands.143 Although there is very little empirical research into the activities of jihadi terrorism, the Dutch Research and Documentation Centre (WODC) has published reports on jihadi activities. The activities of jihadist, as appears from the WODC report, vary from conversion to radical Islamism, also known as the Salafist political variant of Islam, to document forgery, credit card fraud, fund raising, the use of veiled language over the telephone and the use of encrypted computer programs. Other activities are visiting closed group meetings with Salafist, attendance of jihad lessons and the possession of large sums of cash.144 From Dutch case law on foreign fighters the following activities can be derived: the posting of photo’s or YouTube films expressing their ideology on social media, telephone calls in which the suspects express their intent to travel to ISIS, discussing jihad on Facebook and visiting websites concerning jihad.
The first case that will be discussed is a case before the Supreme Court of the Netherlands, Samir A.145 Preparation of a crime is criminalized in article 46 of the Dutch Criminal Code, and can cover any kind of material or activity, as long as it is carried out with criminal intent.
142 EU Counter-Terrorism Coordinator ‘Foreign Fighters and Returnees’ (Discussion Paper 2 December 2014)
35 The Dutch Supreme Court has formulated a threefold test, known as the Fort Transit criteria, to establish preparation of a criminal act.146 The materials used by the suspect must be apparently intended to realise a criminal purpose. The criminal purpose can be derived from the use of the materials and the circumstances in which the materials are used. The test is whether an average person would conclude, when witnessing the act, that the act is to realise a criminal purpose. In Samir A. the Fort Transit criteria are extended, as will appear.
Preparation of a terrorist crime: Samir A. Samir A. was arrested and prosecuted on the charges preparation of murder and arson. The evidence against Samir A. consisted of pictures and floor plans of (amongst others) government buildings, a nuclear power plant, possession of information carriers containing route descriptions to these locations, possession of stab weapons, a bullet proof vest, descriptions of weapon operating, internet searches to weapons and detonators and possession of materials that, combined together, could be used as a detonator or bomb. These materials include amongst others an electric clock, a power cable, a plastic container, fertilizer, ammoniac and several other chemicals. Samir A. had ties with extremist jihadist. The legal issue in this case was whether these facts combined could qualify as preparation of a crime. The Dutch Court of Appeals concluded that the facts did not qualify as preparation of a crime, as the bomb that Samir A. could have manufactured with the materials at hand would not form a realistic threat. An expert in Court testified that the materials possessed by Samir A. were insufficient to manufacture a bomb, as the quantity of the inflammatory or explosive substance and the detonator were incapable to form a bomb. The Dutch Supreme Court overruled the Court of Appeals, stating that the Court of Appeals applied the wrong test for preparation of a crime. The Supreme Court ruled that the question is not whether the materials at hand could factually contribute to the realisation of a crime, but whether these materials separately or combined could, in ‘outward appearance’, at the time of the act be useful for the criminal purpose. The Supreme Court thus elaborated not only a realistic threat can constitute as the use of materials to realise a criminal purpose, but that the intention of the suspect combined with the conduct, irrespective of its factual dangerousness or ability to serve as a means to realise the criminal purpose, is sufficient. If the criminal intent can be determined objectively by the conduct, it constitutes as preparation of a crime. The criminal intent can thus be decisive but only in so far as the intent can objectively be derived from the conduct. What an expert in retrospect testifies on the usefulness of the bomb is thus not of importance.
146 Dutch Supreme Court 18 November 2003 LJN AJ0535 (Fort Transit).
36 The Fort Transit criteria have thus been extended, as the usefulness of materials is not limited to factual usefulness, but is also covers perceived usefulness. There is extensive debate in the literature on whether the elaboration of the Fort Transit criteria in Samir A. is an incline towards criminalization of intent. Sikkema and Keulen argue that the criminal intent is not criminalized as such as the intent still has to be derived from the circumstances and can thus be objectively determined.147 Rozemund and Dolman on the other hand argue that the Supreme Court departs from the objective criteria of Fort Transit and a subjective criterion has become decisive.148
Prosecuted foreign fighters in the Netherlands: two examples If we return to the issue at hand, ISIS, the two discussed components are of great importance for the intent: preventing terrorism in ISIS and preventing terrorism and ISIS in the Netherlands, when the (alleged) foreign fighters return. Article 46 of the Dutch Criminal Code presupposes a crime, and thus the repetitive question is which criminal act these individuals prepare. In the ruling of the District Court Gelderland of 2 February of this year, this conflict became apparent.149 The case concerned an individual who wanted to travel to Syria, and thereto rented a car to travel to Italy, where he would pursue his travel by boat. The suspect’s brother had joined a rebel movement in Syria. The suspect wanted to visit his brother and planned to travel to Syria with a large sum of cash, a car and backpacks, as his brother had asked him to. The Court found that the evidence provided could not prove the intent to commit a specific crime. Moreover the Court ruled that the terrorist intention could not be derived from the evidence at hand, as the mere affiliation with an extremist ideology alone is not sufficient to conclude that there is terrorist intent. This terrorist intent must be derivable from objective indications, but can be supported by the intent or ideology of the suspect. The suspect in this case had expressed the will to travel to Syria and the wish to live in an Islamic state, but this proves only that the suspect had a certain believe. There are no objective indications that the suspect would actively participate in the armed conflict. An expert witness in the case reported that there is a risk that individuals that travel to Syria to participate in ‘defensive jihad’, further radicalize after arrival in Syria and, contrary to their initial intentions, participate in offensive jihad. The Court ruled that there are no indications that this is the case, and moreover that this possibility is impossible to include, as the suspect
147 Berend F Keulen, ‘Grenzen aan de strafbare voorbereiding’ in E Gritter (ed) Opstellen materiel strafrecht (Ars Aequi Libri Nijmegen 2009) 45-76; Eelke Sikkema, Voorbereidingshandelingen (Ars Aequi Libri Nijmegen 2012) 31-54. 148 MM Dolman, ‘Wie Streeft, Die Sneeft’ (2008) Delict en Delinquent 443; Klaas Rozemond, ‘De Casuïstische Grenzen van het Materiële Strafrecht’ (2007) Delict en Delinquent 490. 149 District Court Gelderland 2 February 2015 05/862092-13.
37 has only travelled a short distance. Including the possibility of further radicalisation would imply that dolus eventualis would suffice to qualify as terrorist intent. This, the Court ruled, is contrary to the intention of the legislator and would mean that the ideology of an individual alone is penalized. The Court noted in its conclusion that it is very difficult to apply the current penalization on individuals that want to travel to Syria, as it is nearly impossible to verify what exactly is going on in the region, let alone prove anything within criminal prosecution. If there is no explicit violent intent, any conviction would entail penalization of intent. The Court thus concludes that there is insufficient evidence to prove that the suspect had prepared a (terrorist) crime.
The Court thus concluded that the preparation of any criminal act in ISIS had not been proven. Apart from the intention to travel to Syria, there were no objective indications that the suspect had terrorist intent to commit any specific crime. In another case the Court of Appeals in The Hague reached a different conclusion.150 In this case, the suspect wanted to travel to Syria and had expressed the intent to actively participate in the armed conflict. The suspect had searched the internet how to fabricate bombs and had discussed his support to violent jihad online. The Court of Appeals ruled that terrorist crimes are inherently indeterminately to a certain degree, and the fact that the suspect had searched the internet for how to fabricate bombs was sufficiently specific to conclude that the suspect had prepared a terrorist crime.
Courts are faced with a stalemate. The Netherlands is clearly under the obligation to criminalize foreign fighters from traveling to ISIS or Syria, but not all individuals have clear terrorist intent. The case of Samir A. shows the incline towards a large role for intent, but arguably still holds a certain degree of objectivity as Samir A wanted to manufacture a bomb and possible targets were located. The case of the Court of Appeals however shows that Courts struggle with the criminalization of foreign fighters that have not displayed in any objective matter criminal conduct. The intent then becomes the sole determining criterion. The Courts thus now function as a gatekeeper of the moral limits of criminal law. The question is however how long Courts can fulfil this role if the international community and the national legislators keep expanding the scope of criminal law.
150 Court of Appeals the Hague 27 January 2015 2200477013.
38 Conclusion
Expansion of criminal law to crime prevention entails a clear expansion of the punitive state.151 Vervaele concluded that the focus on public security undermines the balance between the sword and shield function of (inter)national law, and that the equilibrium between the three branches of the trias politica is under great pressure in favour of the executive.152 The consequence of utilizing criminal law as an instrument to avert risk and danger is that the criminal justice system is risking perverting into a security system. 153 Although it is permissible to take security into account, doing so in the context of purely preventive criminal law harbours the danger of a lack of limits.154 The expansion of criminal justice also entails restricting its principles such as nullum crimen sine iniuria, nulla poena sine culpa and ultimum remedium.155 Criminal law then arguably becomes a passé partout for solving societal problems.
Anti terrorism legislation aimed at preventing individuals from travelling to ISIS can be placed in the broader context of the risk society. States are no longer required to address past wrongful conduct, but States are nowadays also required to prevent risks from occurring. Preventing risks and events that might take place in the future require intervention in an early stage of an act that might evolve in a crime. Criminal law has as appeared under the influence of the UN and the EU shifted into a transnational context and demands for legitimization models that are different from those referring to the political sovereignty of the nation state.156 The principles of lex certa, nullum crimen sine culpa and ultimum remedium are compromised and intent becomes increasingly determinative, thus criminal law and justice are stretched to its limits.
The prohibition to travel to ISIS constitutes an interference with the freedom of choice by the State. The reasons provided for criminalization of terrorist behaviour in the Framework Decisions and Resolutions were analysed in section 1. Legal moralism, the harm principle and the offense principle can all be applied to the reasoning of the Security Council and the Council of Europe to terrorism in general. Dworkin’s moral paternalism can be applied, as the
151 Vervaele (n 123) 224. 152 Vervaele (n 123) 224. 153 Vervaele (n 123) 225. 154 Sieber (n 3) 259. 155 Vervaele (n 123) 225. 156 Sieber (n 3) 250, 255.
39 Security Council condemns violent extremism and human rights law and fundamental freedoms are promoted. It is however quite a stretch to apply Feinberg principles to foreign fighters as the criminal conduct of foreign fighters is a grey area. Criminalizing preparation acts in the context of foreign fighters entail expansion of criminal liability. The lack of legitimization for the prohibition of traveling to ISIS lies within the fact that there is very little to none criminal wrongdoing unless the intent of the individual becomes decisive. The protected legal interest and criminal wrongdoing are, in the case of foreign fighters, not specified and therefore cannot qualify as a legitimization. States are however required, both by the UN and by the EU, to prevent individuals from travelling to ISIS. Not every individual with a reprehensible ideology is a future terrorist, but this distinction seems to be of little meaning to the criminalization of foreign fighters.
In this thesis two components of the threat of ISIS were discussed: the threat ISIS poses in the Middle East and the threat ISIS, through returning foreign fighters, poses here. The obligation to criminalize foreign fighters is comprehensive, obliging States to criminalize all foreign fighters that wish to travel. As has been discussed, the issue of proof of what criminal or terrorist act is prepared is in several cases insurmountable. If the terrorist intent is manifested in objectively ascertainable behaviour, such as the manufacturing of a bomb, the preparatory acts can be linked to a specific criminal act, and thus the intent is of importance but arguably not decisive. But there are also (often young) foreign fighters that part with little more than their ideology, money and other attributes, which are subject to the same criminalization. Dolus eventualis then becomes the decisive factor, as even the culpable mind is then difficult to establish.
Courts are struggling with this issue and now keep the pure criminalization of intent or even ideology outside the criminal law as appeared in the previous section. But there are counter forces such as public opinion, the UN Security Council and the EU. As appeared in section 1, Eurojust already proposed an amendment to ease the proof of terrorist crime, thus enabling the establishment of criminal wrongdoing more easily. The UN Security Council is very clear on the matter; all foreign fighters should be criminalized and prosecuted. Time will thus tell if the criminal law provisions on foreign fighters will expand even more, and the punitive state is extended to criminalization of intent or ideology.
40 The price we have to pay for the prevention of risk is too high. There is a discrepancy between the social problem solving capacity of criminal justice and actual performance.157 To avoid overreactions, there are two possibilities. The first is that the pressure for anti terror legislation would be reduced if the legislator were less dependent on public opinion. The second is that instead of emphasising the weaknesses of the Western society such as the vulnerability towards terrorist violence, instead the importance of values of the western society should be highlighted, such as human rights and the rule of law.158 The emphasis on criminal law is perhaps misplaced. Rather than the question of how to suppress individuals from travelling to ISIS, the question should be how governments can support the (spontaneous) processes of resignation of ISIS?159 The government should not base its regulations on societal emotions, or public perception of a certain issue, as that will lead to unbalanced, ineffective and injustice.160
157 Vervaele (n 121) 225. 158 Oehmichen (n 134) 387. 159 Bovenkerk (n 26) 199. 160 Ira Helsloot Roel Pieterman and JC Hanekamp Risico’s en redelijkheid, verkenning naar een rijksbreed beoordelingskader voor de toelaatbaarheid van risico’s (Boom Juridische Uitgevers Den Haag 2010) 105.
41 Table of legislation
Council Framework Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with the view to reinforcing the fight against serious crime [2002] OJ 63/1
Council Framework Decision 2002/475/JHA of 14 June 2002 on combating terrorism [2002] OJ L 164/3 (Combating Terrorism Decision 2002)
Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism [2008] OJ 330/21 (Combating Terrorism Decision 2008)
Table of Dutch cases
Dutch Supreme Court 18 November 2003 LJN AJ0535 (Fort Transit) Dutch Supreme Court 20 Febuary 2007 LJN AZ0213 District Court Gelderland 2 February 2015 05/862092-13 Court of Appeals the Hague 27 January 2015 2200477013
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