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.