Abstract
Since 2019, the Dutch Public Prosecutor has tried four cases in which the accused has been cumulatively charged with a terrorism-related crime as well as a core international crime. This article examines the Dutch selection and prioritisation process of these charges when they are combined, comparing it to cases that solely include a core international crime charge and solely include terrorism-related charges. The findings suggest that, as a result of the suspect-driven approach and limited universal jurisdiction in the Netherlands, the available evidence is the most important criterion in the selection and prioritisation process in cases that include core international crimes. Moreover, resources can also be identified as an influential factor, whereas this aspect features less prominently in cases that only include terrorism-related charges. The influence of other criteria, such as gravity, remains ambiguous.
1 Introduction
On the 29th of March 2021, Yousra L., a 31-year-old Dutch mother of three, told the District Court in The Hague she had had a revelation and found Islam as her religion in 2012.1 Following this, L. radicalised and joined a Telegram group, called Greenb1rds, which was full of jihadist propaganda. L. became the group’s administrator in 2019 and was in close contact with another radicalised young mother, Michelle Ramsden. In the same year, Ramsden was arrested and sentenced to life imprisonment by a court in the United Kingdom for preparing an attack on St Paul’s Cathedral in London.2 L. was detained in the Netherlands and prosecuted. Since she played a significant role in the propaganda machine of the so-called ‘Islamic State’ (Da’esh/isil), L. was convicted of participation in a terrorist organisation.3 Even though she did all of this from behind her computer in a small town near Amsterdam, her contribution to Da’esh/isil was considered substantive.4 Moreover, L. distributed a video showing Da’esh/isil detainees being burned alive. Her comments to this video—in particular, the words ‘like roasted chicken’—were considered humiliating and degrading to such an extent that the Dutch court convicted L. of committing a war crime.5 It was considered an outrage upon the personal dignity of the victims. For the first time in the Netherlands, an individual was convicted for a war crime committed on Dutch territory.6 In the end, L. received a sentence of six years in prison and detention in a hospital.7
The Yousra L.-case is an example of a case that combines a charge related to terrorism with a charge of a core international crime.8 These charges are not often concurrently prosecuted since they originate from different legal frameworks.9 Nevertheless, up until February 2023, there have been four cases of combined charges of core international crimes and terrorism in the Netherlands.10 In other jurisdictions, a suspect is sometimes only accused of a terrorism-related crime, even when the conduct may also amount to a core international crime.11 For this reason, it is relevant to examine how the prosecution of terrorism-related charges and the prosecution of core international crimes charges differ and why certain decisions are made when these charges are involved. Cases of core international crimes and cases of terrorism are legally and practically challenging as well as politically and morally contentious.12 Thus, a careful selection and prioritisation process of cases is imperative.13 This article will examine how the Dutch Public Prosecutor has chosen to prosecute cases of terrorism and core international crimes, based on the cases that have been hitherto prosecuted. More concretely, the article assesses how the Dutch Public Prosecutor selects and prioritises cases when combining charges of core international crimes with charges related to terrorism, compared to cases including solely core international crime charges, and solely terrorism-related charges.
The quality of a judicial system is to a certain extent conditional on the selection and prioritisation process, as it has a significant impact on the perceived legitimacy of the judiciary. It can influence the sense of fairness and due process of both the victims and the accused.14 If a case is not selected, for example, the Dutch Public Prosecutor must have good reasons to explain that decision to the victims. In addition, significant public resources have been devoted to the prosecution of core international crimes and terrorism, so there is a societal interest in making sure they are distributed carefully.15 Not every terrorist or core international crime can be realistically prosecuted by the Dutch Public Prosecutor.16 Therefore, several practical aspects of prosecuting these charges likely influence the decision-making at the Public Prosecution Service. Moreover, as will be analysed below, the Dutch legal framework regarding universal jurisdiction automatically excludes certain cases, restricting the cases which can be selected and prosecuted.17
Whereas the selection and prioritisation process at the International Criminal Court (icc) is widely discussed, less research has been done on the domestic level.18 This article will address this gap by focusing specifically on the selection and prioritisation process in the Netherlands. Moreover, the comparison with cases involving terrorism charges contributes to the scholarship on the interaction between the prosecution of terrorism and core international crimes.19 In order to explore the selection and prioritisation process, the relevant case law will be analysed, subdivided into cases that involve charges related to terrorism, cases that involve charges of core international crimes, and cases that combine these two charges. For the latter two categories, the number of cases is limited. In fact, there are only four cases that combine the two charges, all of which are still lodged on appeal, which could make comparisons more difficult.
In contrast, there have been numerous cases that solely include terrorism-related charges in the Netherlands. Due to the scope of this article, two representative cases have been singled out for analysis in this article, in order to compare these two cases with cases involving core international crimes charges.20 The trials selected are the first two major cases of terrorism since the rise of Da’esh/isil and are in a legal sense quite revolutionary. Furthermore, the cases contain a lot of relevant information for the selection and prioritisation process. For instance, one of the cases involves nine separate individuals, accused of various distinct charges, allowing for a rich analysis of the elements of the case.21 The charges were laid against individuals who travelled to Syria and joined a terrorist organisation as well as individuals who stayed in the Netherlands and committed terrorism-related crimes. Similar charges related to terrorism that have been discussed in this case also appear in later cases.22 The second case concerned the first Dutch national being prosecuted after having travelled to Syria and returned.23 Thus, these two cases provide a relatively representative sample of the cases that involve terrorism charges, as they set a precedent for other terrorism-related cases as well as mirror various elements in cases that were prosecuted subsequently, such as charging practices.24
One limitation, however, is that through the case law approach, one can only analyse the cases that have been selected and prioritised, whereas the cases that have not been selected can by definition not be examined. Nevertheless, various criteria that are being used in the selection and prioritisation process, particularly on core international crimes, give insight into aspects which are considered. In the next section, these criteria as well as the legal framework regarding core international crimes and terrorism in the Netherlands will be discussed.
2 Legal Framework Regarding Core International Crimes in the Netherlands
In 2003, the International Crimes Act (ica, Wet Internationale Misdrijven in Dutch) was adopted in order to more effectively prosecute core international crimes that give rise to universal jurisdiction.25 The Rome Statute, which came into effect in 2002, had been ratified a year earlier by the Dutch Government and, considering that the icc is a court of complementarity, there was a strong incentive to adopt a new law on core international crimes.26 Under the ica, the core international crimes framework, as laid out in the Rome Statute, was integrated on the domestic level.27 There is a jurisdictional limitation to the ica since there needs to be a Dutch link when the crime is committed in order to enable a Dutch court to prosecute. The prosecution of an individual is only possible if a Dutch national has committed a core international crime, if an individual committed a core international crime against a Dutch national, or if an individual committed a core international crime and is now on Dutch territory.28 Nevertheless, the Netherlands currently has one of the broadest domestic frameworks to prosecute core international crimes.29 The adoption of the ica has provided a new impetus for the prosecution of core international crimes in the Netherlands.30 However, it has also become evident that the prosecution of core international crimes at the national level is very complex and requires considerable resources.31 Therefore, the Netherlands established a specialised War Crimes Unit (Team Internationale Misdrijven in Dutch) to deal with the domestic investigation of core international crimes in 2003.32
The legal framework regarding terrorism in the Netherlands is straightforward. Articles 140 and 140a of the Dutch Criminal Code, which was amended after 9/11, criminalise participation in an organisation which aims to commit crimes and participation in an organisation that aims to commit terrorist crimes, respectively.33 Moreover, Article 83 of the Criminal Code links terrorism to a range of crimes if they are committed with terrorist intent, as defined in Article 83a.34 These articles thus provide a broad legal framework for the Dutch Public Prosecutor, especially since various preparatory acts have also been criminalised, for example, recruitment, financing, and training.35 Still, terrorist intent can sometimes be challenging to prove.36 Lists of designated terrorist organisations are occasionally used to determine the terrorist intent of an organisation.37 Da’esh/isil and Jabhat al-Nusra have repeatedly been confirmed as terrorist organisations in Dutch trials, whereas other groups have led to more controversy.38
In the early 2000s, as the icc was in the process of being established in The Hague, domestic prosecution of core international crimes gained momentum, in the Netherlands through the adoption of the ica.39 Moreover, the 9/11 attacks resulted in an overhaul of counterterrorism legislation worldwide, including a broad legal framework to charge suspected individuals.40 Although these legal frameworks developed relatively simultaneously, the crimes were initially prosecuted separately. Nevertheless, both regimes are heavily influenced by the principle of aut dedere aut judicare. This extradite-or-prosecute framework can be recognised, for instance, in the complementarity principle of the icc and various international counterterrorism treaties.41 The rise of Da’esh/isil provided the opportunity for the Dutch Prosecution Service to combine terrorism-related charges with charges of core international crimes.
Another enabling factor is the fact that the Dutch legal system permits cumulative prosecution (sometimes also called dual legal qualification).42 This means that Dutch courts allow the prosecution of two crimes based on the same evidence and the same conduct if ‘all relevant facts of the act are not exhaustively judged under one set of legislation’.43 The differentiation between the charges should therefore be associated with distinct acts of wrongdoing. In this way, Dutch counterterrorism laws and the ica can be used concurrently, which increases fair labelling since the charges more accurately reflect the conduct of the crimes.44 Cumulative prosecution also results in more severe punishment, as sentences run consecutively.45
3 The Dutch Public Prosecutor’s Selection and Prioritisation of Cases
The selection of a case refers to the decision whether to investigate and prosecute a case in court or not. The prioritisation of a case involves proceeding with one case over others, thus devoting additional resources to the prioritised case. More broadly, selection and prioritisation can also be applied to certain victim groups, situations, or states rather than a specific case attached to an individual. For example, at the icc, ‘situations’ are first selected before specific individuals are indicted.46 In a narrower sense, selection and prioritisation can relate to the specific conduct, charge or mode of liability that is prosecuted. Even specific witnesses or evidence are based on the prosecutor’s discretion.47 Discretion can be defined as ‘the act of reaching a reasoned conclusion about the appropriate course of action to pursue’.48
The Dutch War Crimes Unit can commence cases through evidence received from various sources, such as the media, police information, or tips from other states.49 Which criteria should then be considered to select and prioritise cases?50 It is known that the Dutch Public Prosecutor uses, amongst others, the following criteria: ‘the gravity of the crimes, the presumable role by the suspect in the crime, the chance of success of the case (judicial feasibility) and the (possible) effect that can be achieved’.51 Human Rights Watch has reported that factors considered in prioritisation include ‘the seriousness of the alleged crimes, the level of involvement of the accused, the likelihood of cooperation from the territorial state, the chance of securing a conviction and the prosecution service’s general workload’.52 As such, these quotes indicate that various elements of gravity, evidence, and available resources are taken into account. Moreover, ‘[p]rosecutors also consider whether the case will help achieve the overarching goal of keeping the Netherlands from becoming a safe haven for those responsible for international crimes and try to ensure that their case selection represents a broad range of states … ’.53 The former criterion relates mainly to either extraditing or prosecuting those responsible for international crimes, yet it is not easy to assess how this would influence the selection and prioritisation process.54 The latter criterion aims to incorporate victims from crimes committed in various states in what is often called the ‘interests of justice’. In the following paragraphs of this section, the criteria which have been used to select and prioritise cases of core international crimes and terrorism will be further examined.
Firstly, and most importantly, the evidence to reasonably pursue a case must be considered, which is especially challenging for charges of core international crimes. Core international crimes are complex and require considerable evidence, whereas terrorism-related crimes often have a lower evidential threshold. For instance, several aspects related to an armed conflict need to be proven for war crimes charges, whereas this is not necessary for terrorism-related crimes. As such, this relates to the criterion of judicial feasibility. The selection and prioritisation process are likely to be—at least to a significant extent—opportunistic, pragmatic, and dependent on realities related to the facts on the ground, rather than executing a rational policy with much room for prosecutorial discretion. For instance, obtaining testimonies or investigating the crime scene is very difficult, if not impossible in some cases, due to an active conflict in the relevant state.55 Therefore, the (non-)cooperation of the territorial state has also been mentioned in the criteria of selection and prioritisation.56 Innovative techniques to gather evidence have been developed in the last decade, such as via social media profiles, as an alternative to witness testimony, which is sometimes difficult to obtain.57
Secondly, resources must be used strategically because of the complex nature of core international crimes. Core international crimes are a niche in the domestic legal framework and require specialised knowledge.58 Financial means and human capital are limited.59 Other parts of the judicial branch in the Netherlands appear to be even more strained in their resources.60 In Canada, for example, the justification of committing resources to investigate an alleged core international crime is the most important criterion in selecting and prioritising cases.61 In the field of terrorism, in contrast, significant resources have been allocated to the observation, investigation, and prosecution of foreign fighters.62 This difference is likely a result of the preventative objective of most terrorism prosecutions, whereas the goal of core international crime cases is retribution and ending impunity.63
Thirdly, most international and domestic courts consider the gravity of the crime in the selection and prioritisation process.64 Different criteria have been established to define gravity, such as the scale of the violence, the nature of the harm caused and the methods used in the crime.65 Although all cases of core international crimes and terrorism are considered grave in and of themselves, there is no clear conceptualisation of what exactly gravity means for the Dutch Public Prosecutor. It seems to include at least the ‘level of involvement of the accused’ and the ‘seriousness of the alleged crimes’.66 Even more complicated is the fact that this latter criterion can be interpreted quantitatively, namely the number of victims, but it can also refer to qualitative aspects, such as the nature of the crime itself.67
Fourthly, it must be in the ‘interests of justice’ to pursue a particular situation or case. For the Dutch Public Prosecutor, it seems that this is considered when selecting and prioritising cases, namely as ‘the (possible) effect that can be achieved’, although this formulation is quite ambiguous.68 It could also relate to the impact of the trial on the victims or society as a whole. Moreover, the Dutch Public Prosecutor aims to prosecute individuals responsible for international crimes from various states, a criterion that can also be seen in the interests of the victims.69
Fifthly, although unlikely in the Dutch context, political interference must also be discussed.70 The Dutch Public Prosecutor ostensibly aims to remain as impartial as possible and therefore independent from the political branch of government.71 Even though Dutch politicians can indeed prioritise specific areas of prosecution—which they have done concerning core international crimes as well as terrorism in general since the early 2000s—they are removed from the selection and prioritisation process regarding specific cases.72
4 Dutch Case Law
4.1 Cases Involving Both Core International Crimes and Terrorism
The first case that was concluded with both relevant charges concerned Oussama A., who had travelled from the Netherlands to Syria in order to join Da’esh/isil in 2014 and returned in 2018.73 He was, in addition to participation in a terrorist organisation and preparing/furthering terrorist crimes, convicted of an outrage upon personal dignity.74 This war crime was successfully charged after a picture was found on the Facebook page of the suspect, showing him smiling next to a crucified man.75 Interestingly, two other pictures were shown in court, which the Dutch Public Prosecutor similarly alleged to be outrages upon personal dignity, but A. did not appear in these pictures and there was not enough evidence to show that he shared the pictures.76 As a result, the conduct shown in these other pictures was not considered to be an outrage upon personal dignity.77 Most of the evidence used in his conviction was discovered on social media platforms.78 Notably, the court considered it necessary to exceed the sentence suggested by the Dutch Public Prosecutor by almost two years, due to the gravity of the war crime.79
Ahmad al-Y. was seeking asylum in the Netherlands when the Dutch police received a tip from the German authorities that he was involved in the armed conflict in Syria.80 A video was found on YouTube in which al-Y. was shown kicking and spitting on a captured dead body, allegedly celebrating a victory, as a member of the terrorist organisation Ahrar al-Sham. The court concluded that this video displayed an outrage upon personal dignity as a war crime.81 Again, the prosecutor charged a suspect with the war crime of outrage upon personal dignity and, again, vital evidence was found on social media platforms as well as through international cooperation.82
Next, the ground-breaking Yousra L.-case appeared before the Dutch courts, which was briefly discussed in the introduction.83 The crucial development in this trial was that L. was convicted of war crimes connected to the conflict and membership in Da’esh/isil despite never having travelled to Syria or Iraq. Instead, she had been actively distributing Da’esh/isil propaganda via Telegram from her home in the Netherlands. By disseminating this propaganda, her conduct was considered integral to the global media strategy of Da’esh/isil and L. was convicted of membership in a terrorist organisation and other terrorism-related charges.84 Moreover, L. had been spreading demeaning material, including the infamous video of a Jordanian pilot being burned alive by Da’esh/isil, and commented on the video, ridiculing the victim.85 According to the court, these comments were a war crime of outrage upon personal dignity and, as such, this was the first conviction of a war crime that technically occurred in the territory of the Netherlands.86 Again, digital evidence was crucial for this conviction.87 She was also found guilty of inciting a terrorist crime and a war crime as well as distribution with the intention to incite a terrorist crime and a war crime. As such, the Dutch Public Prosecutor aimed to hold L. responsible for the full spectrum of crimes she committed.88 This case was likely also prioritised because L. was actively distributing Da’esh/isil propaganda and had an elevated risk of recidivism owing to her mental state.89
Lastly, the Ahmad al-K.-case was the only trial that involved a different war crime, namely murder.90 The Dutch police again received a tip from German authorities about an asylum seeker that was alleged to have been a former commander of a militia allied to Jabhat al-Nusra.91 More specifically, two different videos showed that he had taken a leading role in the execution of a Syrian soldier. Since the victim was detained and had thus gained protected status, al-K. was convicted of being a co-perpetrator of the war crime of murder.92 Again, social media evidence provided at the trial was crucial and the initial investigation resulted from international cooperation.93 Interestingly, however, al-K. was acquitted of membership in a terrorist organisation owing to a lack of evidence regarding the specific group he belonged to.94 Still, due to the grave nature of the war crime, al-K. was sentenced to twenty years of imprisonment.95
4.2 Cases Involving Core International Crimes Solely
In the years after the ica was passed, the first core international crime cases were slowly being investigated and prosecuted. The War Crimes Unit concentrated primarily on eight cases regarding alleged crimes committed in the Democratic Republic of Congo, Afghanistan, Sri Lanka, Rwanda, Liberia, and Iraq. In particular, the prosecutions of two Dutch businessmen for complicity in war crimes attracted much public attention.96 These cases resulted in lengthy investigations and trials.97 Since 2010, fewer cases have commenced, and more emphasis was placed on successfully completing the cases that were already in the late stages of the trial. Moreover, instead of prosecution, the War Crimes Unit seemed to have been more involved in extraditions involving core international crimes charges.98 The downing of Flight Malaysia Airlines 17 (mh17) in 2014 was another important event. Since then, the investigation and prosecution of those responsible for the downing of mh17 has been a priority for the Dutch government and the judgement was delivered in 2022.99 Nevertheless, novel cases regarding crimes allegedly committed in Ethiopia and Afghanistan show a commitment to prosecute decades-old cases that include core international crimes charges.100 In total, since 1997, there have been twenty cases that solely involved core international crimes and at least twelve cases of extradition.101
All the Afghan individuals, as well as the Congolese and Ethiopian convicts, were part of the security apparatus of their state and later charged with torture.102 In the Afghan cases, the individuals were convicted of complicity to torture, which did not require active engagement in the act.103 In the Netherlands, torture is also regarded as a separate international crime, distinct from torture as a war crime, thus making it unnecessary to prove the nexus to an armed conflict in all cases.104 Moreover, the War Crimes Unit has been active in prosecuting those responsible for supporting violent regimes, thus being complicit in core international crimes.105 Terrorism-related charges were simply not relevant for these older cases involving charges of core international crimes. Lastly, several extraditions carried out by the Netherlands have led to trials, almost all concerning Rwanda and the states of the former Yugoslavia.106
4.3 Cases Involving Terrorism Charges Solely
As it is not within the scope of this article to address all terrorism-related cases in the Netherlands, two legally significant cases will be discussed in this section. The Dutch Public Prosecutor’s strategy is visible in the so-called Context-case, in which nine suspects were convicted of various terrorism-related charges.107 It was a joint terrorism case against Dutch foreign fighters who travelled to Syria as well as individuals accused of terrorism-related crimes committed in the Netherlands.108 The wide range of charges related to terrorism is emblematic of the aim of the Dutch Public Prosecutor to ensure full accountability for the crimes these individuals committed.109 The court noted the duty of states to prosecute terrorists as well as the preventative and retributive function of prosecuting terrorists.110 It also emphasised the seriousness of terrorist crimes and the fact that the Dutch government has deliberately decided upon a broad legal framework to prosecute suspected terrorists.111
The Maher H.-case resulted from the investigation in the Context-case.112 It was the first prosecution of a Dutch foreign fighter who joined Da’esh/isil and later returned.113 H. was convicted of preparing to commit manslaughter and murder with terrorist intent.114 The combination of his actions, such as searching for jihadi content online and travelling to Syria, was collectively enough evidence to find H. guilty of this charge. In both the Context-case and the Maher H.-case, much of the evidence was found on the social media profiles of the suspects.115 For instance, the court considered that texts found on the Twitter page of an individual in the Context-case were aimed to incite others to a terrorist crime.116 In the Maher H.-case, a picture was found on Facebook of H. holding a rifle.117 Messages to his mother also revealed that H. had participated in hostilities in Syria.118 On appeal, H. was sentenced to four years imprisonment, alongside special precautionary measures.119
5 Comparing Selection and Prioritisation in Dutch Cases
When comparing cases that involved charges of terrorism and core international crimes, to cases that only involved charges of core international crimes, and cases that only involved charges of terrorism, certain aspects stand out. Firstly, there has been a multitude of cases solely involving charges of terrorism relative to core international crimes cases. Even though the capacity of the War Crimes Unit has more than doubled since its inception, its size is still relatively small.120 As a result of the perceived national security threat, however, much more resources have been allocated to the prosecution of terrorism relative to core international crimes.121 For instance, whereas the counterterrorism unit of the national police contains 151 full-time equivalent employees, the War Crimes Unit only has 43.122 The expected gravity of such a future terrorist offence, which might be violent or in another way have a significant impact on society, is thus prevented via an early intervention through criminal prosecution. If resources are scarce in prosecuting cases that involve core international crimes, this criterion is likely to be relatively important.123 In contrast, for cases of solely including terrorism charges, this criterion will probably have less impact on the selection and prioritisation process, even though one must also consider the relative frequency of occurrence of these two crimes.
Furthermore, incorporating charges of core international crimes adds legal complexities in court, which requires more time and expertise.124 In contrast, the broad framework surrounding terrorism-related charges allows for various possibilities for the Dutch Public Prosecutor in choosing which exact charges are pursued in court.125 Individuals charged with terrorist crimes are mostly Dutch nationals who allegedly committed a crime on Dutch territory, whereas core international crimes are committed within the territory of another state (with the Yousra L.-case being an exception). As a result of the jurisdictional requirement in Dutch law, evidence is likely only collected once the suspect of a core international crime has arrived on Dutch territory, when the suspect is still unknown to Dutch authorities.
When prosecuting terrorism charges and charges of core international crimes which have been recently committed, the Dutch Public Prosecutor can use digital (and other communicative) evidence, thus rendering cooperation with the territorial state unnecessary.126 For terrorism-related charges—and even for some of the core international crimes charges—travelling to states in these cases is unnecessary to investigate the alleged crime, even when it occurred outside of the Netherlands, thus requiring fewer resources and resulting in more expeditious investigations. In contrast, older cases involving only charges of core international crimes, for instance, regarding Afghanistan, could not rely on this type of evidence.127 Furthermore, the evidential threshold for terrorist crimes—as well as for the war crime of outrage upon personal dignity, which was charged three times in recent core international crimes cases—is comparatively low.128 In this way, whereas evidence gathering for charges of core international crimes is complicated (especially for those committed decades ago), it is often relatively easier when it concerns terrorism-related charges and more recently committed core international crimes.129
Additionally, international cooperation regarding evidence stands out, especially with Germany, which has been crucial for initiating two cases which combine core international crimes and terrorism.130 Although the fact that this assistance from Germany has resulted in cumulative charges is likely a coincidence, it does show the value of international cooperation in cases that involve core international crimes. The Ljubljana-The Hague Convention on Mutual Legal Assistance (mla) related to core international crimes, which has recently been adopted, appears to be valuable to strengthen international cooperation in the future with other countries as well.131 In cases that solely involve terrorism charges, however, international cooperation is often unnecessary, as the crime was conducted on Dutch territory. Nevertheless, particularly in cases that involve charges of core international crimes, international cooperation will be necessary for the future, for example through Europol or Eurojust.132
Moreover, the Dutch Public Prosecutor aims to investigate cases representing a broad range of states in the ‘interests of justice’.133 Whereas the cases with charges of terrorism combined with charges of core international crimes mainly relate to crimes allegedly committed in Syria, the cases with charges of core international crimes solely have focused on crimes in numerous other states.134 Considering all cases that include core international crime charges, the criterion of doing justice to victims from various states is visible. However, this variety could also simply result from the judicial feasibility of the cases that can reasonably be pursued in court, rather than specific policies. For terrorism-related cases, this criterion is difficult to assess, due to the different jurisdictional framework.135 It must also be noted that the Netherlands has been active in extraditing suspects of core international crimes and legally assisting in the prosecution of core international crimes in other states, which leads to fewer individuals being prosecuted for international crimes in the Netherlands.136 This clearly connects to the ‘interests of justice’ criterion.137
Another way to interpret ‘the (possible) effect that can be achieved’ might be the interests of victims in pursuing criminal liability.138 The Public Prosecutor’s Office has emphasised that they are in communication with non-governmental organisations that represent victims and victim communities.139 In this way, the Public Prosecutor could decide that victims are not interested in criminal justice, although this seems rather unlikely. As long as impunity prevails for crimes, feelings of injustice will continue to grow. The Dutch Public Prosecutor has been active in prosecuting decade-old cases. However, ‘the (possible) effect that can be achieved’ for the victims could be more significant if recent cases are taken up quickly.140 It thus remains unclear what exactly entails the ‘interests of justice’ or ‘the (possible) effect that can be achieved’.141 As a consequence, it is difficult to recognise its influence. Still, it is necessary to incorporate this criterion into the selection and prioritisation process in order to grant prosecutorial discretion in cases of core international crimes and only go to trial if it is deemed beneficial for the victims.142
For cases that involve terrorism charges, ‘the (possible) effect that can be achieved’ more likely relates to the societal impact of terrorism trials. The effect of a successful terrorism trial is a statement of disapproval of such terrorist acts. The expressive power of a terrorist trial is bigger than that of core international crimes cases because the subject is even more politicised.143 At the same time, however, it must be noted that the preventative framework for terrorism is not in all cases in the ‘interests of justice’, as some policies unjustifiably restrict fundamental human rights.144 The ‘interests of justice’ also may not always be served by expedient trials that result in relatively short sentences, even though the societal impact might be the greatest in this way.145 In sum, the criterion of the ‘interests of justice’ or ‘the (possible) effect that can be achieved’ is ambiguous from the case law, both in cases of terrorism and core international crimes.
Turning to the criterion of gravity, which the Dutch Public Prosecutor has emphasised in cases of core international crimes, particularly. Even after a long time and despite the additional challenges that follow from the length of time between the conduct of the alleged crime and the investigation, the gravity of old core international cases warrant prosecution.146 Moreover, these cases have sometimes concerned hundreds of victims.147 ‘The level of involvement’ of the accused in the crimes is known to be considered as an aspect of qualitative gravity. For instance, in the cases of the Dutch businessmen, the ‘level of involvement’ in the actual conduct of the crimes was somewhat limited since they were considered complicit in war crimes, rather than direct participators. Nevertheless, the court emphasised in the Guus K.-case that trading with violent regimes such as the one in Liberia under Charles Taylor could lead to involvement in war crimes.148 Furthermore, the abuse of power, as an aspect of qualitative gravity, can be identified in Afghan cases.149 In this way, quantitative gravity can definitely be seen in these cases, whereas qualitative gravity seems to be a somewhat ambiguous factor.
The Context-case, and to a lesser extent also the Maher H.-case, because of their scale as well as their timing (the judgement was delivered just a month after the 2015 Paris Attacks), had a considerable impact on society, thus carrying a high degree of qualitative gravity. Still, the Context-case contained several charges that are preparatory acts to a terrorist crime, even though three individuals had already travelled to Syria.150 In essence, proving terrorist charges is ‘remarkably straightforward’ since there are numerous possible charges to lay against a suspect.151 The broad (preventative) framework related to terrorism has led to relatively low sentencing since the mode of liability is often not active perpetration but complicity, preparation, or passive conduct, such as membership.152 Furthermore, whereas core international crimes are usually committed against an obvious victim, for some terrorist crimes it can be difficult to identify the victim, for instance, when someone is convicted of being a member of a terrorist organisation, as participation is a passive act.153 The Dutch government has decided that it is in the interests of society and, therefore, in the ‘interests of justice’ to focus on terrorism.154 The (future) victim of terrorism is society itself and its members.155 Precisely because of its high degree of impact on society, which is an element of qualitative gravity, terrorism is prioritised. However, the quantitative gravity of these charges is small because few Dutch terrorist cases have involved actual individuals as victims of the crimes, even though these terrorist organisations, such as isil /Da’esh have committed enormous (direct) harm against victims.156
No information has been found that points towards political interference regarding the selection and prioritisation process, even though the Dutch government’s non-repatriation policy of foreign fighters has resulted in a pre-selection, for the Public Prosecution Service commonly only pursues cases of individuals present on Dutch territory. Moreover, significant resources have been allocated to the prosecution of suspected terrorists, especially foreign fighters, as well as the investigation of the downing of mh17.157 This has resulted in numerous prosecutions, including some in absentia, which is uncommon in the Netherlands.158 As such, one could argue that the Dutch government did indirectly influence the selection and prioritisation process towards specific crimes.159 There is much pressure to quickly prosecute foreign fighters.160 Therefore, the Dutch Public Prosecutor initiated investigations in 2017 against all remaining Dutch foreign fighters still in Syria and Iraq—a clear selection of cases.161 In this way, the policies on repatriation influence the selection and prioritisation process at the Dutch Public Prosecutor, regardless of whether this is intentional.162
In fact, there has been substantial criticism of the selection and prioritisation process. The Yazidi community has been vocal to condemn the lack of cases against (Dutch) perpetrators of the Yazidi Genocide in Syria.163 The lack of outreach from the War Crimes Unit makes the victims feel neglected and could result in crucial evidence being neglected. Moreover, critique has been voiced at the lack of interest in the work done by well-resourced UN initiatives which structurally investigate and collect evidence by various actors in the conflict in Syria and Iraq.164 Some former employees of the Dutch authorities have criticised that the War Crimes Unit has not travelled to the region and investigated the crimes in Syria and Iraq.165 In February 2023, however, new charges have been announced against a repatriated Dutch national for crimes committed against a Yazidi woman, including the charge of enslavement as a crime against humanity.166 Similar to the Yazidi concerns, there has also been criticism of the lack of prosecutions regarding the atrocities committed by the Syrian government.167 When the Dutch authorities are questioned about the aforementioned objections, the answers almost always refer to the complicated nature of prosecuting these cases.168 It also shows the practical and opportunistic aspects of the selection and prioritisation process, with a focus on judicial feasibility. The response by the Dutch Public Prosecutor is understandable, although the critique mentioned is difficult to assess without having access to details regarding the cases that were not pursued.
6 Implications
On the international level, van Schaack investigated the prosecution of core international crimes and terrorism charges and has reached similar results to the analysis above.169 For example, she has also identified a focus on prosecuting terrorist charges, with less attention being paid to core international crimes, because of a lower evidential threshold as well as national security concerns in relation to terrorism.170 Van Schaack recognises that ‘domestic proceedings remain episodic and opportunistic’ in relation to core international crimes ‘[g]iven the investigatory and prosecutorial realities … ’, thus concurring with the findings in this article.171 She also highlights the importance of digital evidence, the documentation of non-governmental organisations, and the involvement of diaspora communities in prosecuting these cases, which, in turn, has resulted in the development of (inter)national jurisprudence.172 In this way, this article, alongside the research by van Schaack, indicate potential ways forward for charging practices and the selection and prioritisation process regarding the prosecution of core international crimes and terrorism.173
Firstly, it must be understood that the relationship between the prosecution of terrorism-related crimes and the domestic application of international criminal law is complex. The difference between the prosecution of terrorism-related crimes and core international crimes is clearly visible within the Dutch legal context. Thynne has claimed similarly that the prosecution of terrorism charges is primarily for counterterrorism purposes.174 As selection and prioritisation are inevitable, it is important to examine the goals of criminal justice for these particular crimes. For terrorism, the aim seems mainly preventative; an attempt to reduce the threat to national security through incapacitation. The goal might be more idealistic for core international crimes, according to some authors, such as ending impunity.175 By combining the two crimes, these objectives might be achieved simultaneously, but they can also prove counterproductive.176 For instance, in some cases, humanitarian assistance by non-governmental organisations is hampered because of counterterrorism laws—in effect criminalising the delivery of medical aid to vulnerable individuals—whereas one of the core objectives of international humanitarian law is to reduce suffering.177 Thus, in line with findings by other scholars, it is crucial that an adequate balance is sought between the goals of prosecution for counterterrorism purposes (and the related counterterrorism legislation) and those of international criminal justice and international humanitarian law.178
Secondly, the differences between the prosecution of terrorism and core international crimes in the Netherlands show the importance of resources. Even though the Dutch War Crimes Unit is one of the biggest in the world, a shortcoming of capacity, whether at the Public Prosecutor’s Office, at the War Crimes Unit, or in the judicial branch, remains a constraining factor in investigating the cases that involve core international crimes.179 Proving charges of terrorism is considerably less resource-intensive.180 Still, the Dutch Public Prosecutor’s workload will continue to be high over the coming years, both in relation to terrorism cases as well as core international crimes cases. It is necessary that the selection and prioritisation process is fair and will ultimately do justice to the victims of both core international crimes and terrorism. Therefore, as Van der Wilt has also argued in a paper in preparation for a Dutch parliamentary hearing, decreasing the gap between the considerable resources reserved for terrorism investigations and the limited resources allocated to the prosecution of core international crimes is desirable.181
Thirdly, the Dutch Public Prosecutor appears to adopt a suspect-driven approach, in which a suspect first must be identified, rather than an offence-driven method.182 As a consequence, the availability of evidence is the most decisive criterion in the selection and prioritisation process for core international crimes. Moreover, international cooperation is crucial in order to assess judicial feasibility.183 However, it is unrealistic to expect this collaboration with states which are unable or unwilling to prosecute core international crimes, even after the mla Convention has been signed.184 Therefore, as already stressed by other scholars, gathering evidence through cooperation with other (European) states, non-governmental organisations, victim communities and international organisations as well as through digital investigations, will be valuable in the future.185 These initiatives could also save resources. Nevertheless, the suspect-driven approach—which is understandably adopted for reasons of judicial feasibility—will, for the moment, likely deliver the most results in the courtroom.
Fourthly, the process of selection and prioritisation in the Netherlands is currently not very transparent. Some concepts within the selection and prioritisation process, such as ‘the (possible) effect that can be achieved’ are still ill-defined, at least for the public eye. Even though a certain amount of discretion and secrecy is necessary on a case-by-case basis, a more detailed explanation of the selection and prioritisation process would be helpful. Increased transparency into the policies of the Public Prosecution Service could provide more understanding surrounding cases that have not been prosecuted up until now.186 In this way, it could also increase the trust in the judicial system and its legitimacy when the Dutch Public Prosecutor uses its discretion.187
Lastly, the possibility to carry out structural investigations into certain situations could provide an alternative to the suspect-driven approach. However, this would realistically also require an expansion of the scope of universal jurisdiction in the Netherlands.188 Currently, the framework of limited universal jurisdiction pre-selects cases for the Netherlands which could be pursuable in court, for they already have a Dutch link.189 Furthermore, structural investigations require a lot of additional resources and other structural investigation mechanisms from the UN are already sometimes involved.190 Van der Wilt has rightly pointed out that prosecuting core international crimes, even if the suspect is under Dutch jurisdiction, is already incredibly complex. Therefore, even if the selection and prioritisation process is perceived as episodic, the suspect-driven approach under limited universal jurisdiction is still the optimal method for the Dutch Public Prosecutor to get results in the courtroom as well as justice for the victims of these heinous crimes.
7 Concluding Observations
This article has analysed the selection and prioritisation process of the Dutch Public Prosecutor, comparing cases that involve charges of terrorism to cases that include charges of core international crimes, and to cases that combine these two charges. It must be noted that the case law approach limits the validity of the findings. Nevertheless, the exploratory analysis above can still provide valuable insight into the prioritisation and selection process at the national level.
This article finds that judicial feasibility is key in selecting and prioritising cases of core international crimes, as a result of the suspect-driven approach and the limited jurisdictional framework. For terrorism-related charges, the preventative framework reflects the perceived comparative qualitative gravity of terrorist conduct. The evidential issues and scarcity of resources that arise for charges of core international crimes are less apparent when prosecuting terrorism-related charges. As such, the legal frameworks regarding core international crime and terrorism are still considerably distinct. At the same time, however, when a terrorist commits a core international crime, this legal difference is blurry and difficult to discern—the conduct becomes intertwined, together as brothers-in-arms.
Acknowledgements
I would like to thank Rumyana van Ark-Grozdanova, Tarik Gherbaoui, and James Patrick Sexton for their highly valuable comments and guidance on my work as well as for providing me the opportunity to conduct this research. I am also grateful to Leena Grover, whose feedback and support was incredibly helpful. As a result of her encouragement as my supervisor, I was able to develop my Master’s Thesis into this article.
C. Rosman, ‘om ziet spraakwaterval Yousra uit Uithoorn als onderdeel van “de propagandamachine van is”’, ad (29 March 2021), available online at www.ad.nl/binnenland/om-ziet-spraakwaterval-yousra-uit-uithoorn-als-onderdeel-van-de-propagandamachine-van-is~acf7fc9a/ (accessed 2 February 2023); See also District Court The Hague, Public Prosecutor v. Yousra L., ecli:nl:rbdha:2021:6620, 29 June 2021.
Rosman, supra note 1. In the Netherlands, the surnames of accused individuals are commonly shortened to the first letter, in order to preserve the right to privacy of the accused.
Although the so-called ‘Islamic State’ is known by different names and acronyms, this article will follow United Nations terminology and use ‘Da’esh/isil’. See unitad, Investigative Team to Promote Accountability for Crimes Committed by Da’esh/isil, available online at www.unitad.un.org (accessed 2 February 2023).
Public Prosecutor v. Yousra L., supra note 1, para. 5.4.5.
Ibid., para. 6.5.
See also M.C. Zwanenburg and R.J. Bartels, ‘Enkele opmerkingen naar aanleiding van het vonnis van de rechtbank Den Haag in de zaak van is-propagandiste Yousra L: deelname aan een criminele organisatie en de interactie tussen het humanitair oorlogsrecht en het strafrecht.’ 2(4) Nederlands Tijdschrift voor Strafrecht (2021) 239–246, doi: 10.5553/nts/266665532021002004008, p. 240.
Public Prosecutor v. Yousra L., supra note 1, para. 12.
Core international crimes in this article are defined as war crimes, crimes against humanity, and genocide, as defined in the Dutch International Crimes Act. See E. van der Borght, ‘Prosecution of International Crimes in the Netherlands: An Analysis of Recent Case Law’, 18(1) Criminal Law Forum (2007) 87–136, doi: 10.1007/s10609-007-9038-5, pp. 92–109.
See B. Saul, ‘From Conflict to Complementarity: Reconciling International Counterterrorism Law and International Humanitarian Law’, 103(916–917) International Review of the Red Cross (2021) 157–202, doi: 10.1017/S181638312100031X; H. Cuyckens, v‘Foreign Fighters and the Tension between Counterterrorism and International Humanitarian Law: A Case for Cumulative Prosecution Where Possible’, 103(916–917) International Review of the Red Cross (2021) 581–603, doi: 10.1017/S1816383121000308; H. Cuyckens and C. Paulussen, ‘The Prosecution of Foreign Fighters in Western Europe: The Difficult Relationship between Counter-Terrorism and International Humanitarian Law’, 24(3) Journal of Conflict and Security Law (2019) 537–565, doi: 10.1093/jcsl/krz027; K. Thynne, ‘Better a War Criminal or a Terrorist? A Comparative Study of War Crimes and Counterterrorism Legislation’, 103(916–917) International Review of the Red Cross (2021) 237–266, doi: 10.1017/S1816383121000436.
For an overview of the four cases, see Openbaar Ministerie (Ministerie van Justitie en Veiligheid), Syrië—Internationale Misdrijven, available online at www.om.nl/onderwerpen/internationale-misdrijven/rechtszaken-per-land/syrie (accessed 2 February 2023).
For examples, see A. Sarfati, ‘International Humanitarian Law and the Criminal Justice Response to Terrorism: From the UN Security Council to the National Courts’, 103(916–917) International Review of the Red Cross (2021) 267–293, doi: 10.1017/S1816383121000631, pp. 281–283.
Thynne, supra note 9, pp. 259–264.
M. Bergsmo (ed.), Criteria for Prioritizing and Selecting Core International Crimes Cases (Forum for International Criminal and Humanitarian Law, Oslo, 2010), pp. 9–14.
Ibid., p. 14.
A. Smeulers, ‘Tien Jaar Wet Internationale Misdrijven–Een Evaluatie’, 44(4) Delikt en Delinkwent (2014) 267–290, p. 289.
M. deGuzman and W. Schabas, ‘Initiation of Investigations and Selection of Cases’ in G. Sluiter (ed.), Towards a Codification of General Rules and Principles of International Criminal Procedure (Oxford University Press, Oxford, 2012), p. 54.
See also Smeulers, supra note 15; H. van der Wilt, ‘Tussen Idealisme En Realisme: Vervolging van Internationale Misdrijven in Nederland, Anno 2018’, 48(4) Delikt en Delinkwent (2018) 243–252.
For an overview of the selection and prioritisation process at the icc, see Office of the Prosecutor (International Criminal Court), Policy Paper on Case Selection and Prioritisation (2016), available online at www.icc-cpi.int/sites/default/files/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf (accessed 2 February 2023).
See, e.g., Thynne, supra note 9; Cuyckens and Paulussen, supra note 9; Saul, supra note 9.
Namely, District Court The Hague, Public Prosecutor v. Imane B. and others, ecli:nl:rbdha:2015:14365, 10 December 2015 (hereinafter ‘Context-case’); District Court The Hague, Public Prosecutor v. Maher H., ecli:nl:rbdha:2014:14652, 1 December 2014.
Context-case, supra note 20, para. 2.
See S. Wittendorp and E. Bakker, Inventarisatie Rechtszaken Tegen Jihadistische Buitenlandse Strijders. Een Vergelijking Tussen Nederland, België, Denemarken, Duitsland, Frankrijk, Het vk En de vs (Institute of Security and Global Affairs, The Hague, 2018), pp. 24–37, available online at www.hdl.handle.net/1887/62015 (accessed 2 February 2023).
See Public Prosecutor v. Maher H., supra note 20.
B. van Schaack, ‘National Courts Step Up: Syrian Cases Proceeding in Domestic Courts’ in M. Schmitt and others (eds), Imagining Justice for Syria (Oxford University Press, Oxford, 2020), pp. 22–23.
For the history of laws on core international crimes and universal jurisdiction in the Netherlands before the ica, see Smeulers, supra note 15, pp. 267–270. There is no statute of limitations, see Wet Internationale Misdrijven (ica, 2003), Article 13, available online at www.wetten.overheid.nl/BWBR0015252/2020-01-01 (accessed 2 February 2023).
Smeulers, supra note 15, p. 269.
Ibid.
Ibid., p. 270. See Wet Internationale Misdrijven, supra note 25, Article 2.
E.g., the ‘international crime’-element can also be ‘equated’ to ordinary crimes, if the ordinary conduct of the crime is carried out with the intent to commit an international crime. As such, it can result in charges such as participation in a criminal organisation with the intent of committing war crimes. See Wet Internationale Misdrijven, supra note 25, Article 1(4).
Smeulers, supra note 15, p. 289.
Ibid., pp. 289–290.
For more information on the War Crimes Unit, see Openbaar Ministerie (Ministerie van Justitie en Veiligheid), Team Internationale Misdrijven—Internationale Misdrijven, available online at www.om.nl/onderwerpen/internationale-misdrijven/team-internationale-misdrijven (accessed 2 February 2023).
Wetboek van Strafrecht (Dutch Criminal Code), Articles 140–140a; See also Y. Buruma and E. Muller, ‘Wet Terroristische Misdrijven in Perspectief’, 41(78) Nederlands Juristenblad (2003) 2138–2145, pp. 2142–2143.
Wetboek van Strafrecht, supra note 34, Article 83(a); See also Thynne, supra note 10, p. 249.
L. van der Heide and J. Geenen, ‘Preventing Terrorism in the Courtroom–The Criminalisation of Preparatory Acts of Terrorism in the Netherlands’, 26(2-4) Security and Human Rights (2015) 162–192, pp. 163–164, 171; B. de Graaf, ‘Foreign Fighters on Trial: Sentencing Risk, 2013–2017’ in N. Fadil, M. de Koning and F. Ragazzi (eds), Radicalization in Belgium and the Netherlands: Critical Perspectives on Violence and Security (Bloomsbury Publishing, London, 2019), pp. 97–130, p. 105.
C. Paulussen and K. Pitcher (icct), Prosecuting (Potential) Foreign Fighters: Legislative and Practical Challenges (2018), available online at www.icct.nl/publication/prosecuting-potential-foreign-fighters-legislative-and-practical-challenges, pp. 30–31 (accessed 2 February 2023).
J. Geneuss, ‘The Legal Limbo of Counter-Terrorism Criminal Law and Armed Conflict Anti-Regime and Anti-is (Foreign) Fighters Before European Courts’, 10(3) European Criminal Law Review (2020) 338–364, doi: 10.5771/2193-5505-2020-3-338, pp. 339–340.
Ibid., pp. 356–358.
Smeulers, supra note 15, p. 289.
United Nations Security Council, Resolution 1373 (s/res/1373); See also D. Zimmermann, ‘The European Union and Post-9/11 Counterterrorism: A Reappraisal’, 29(2) Studies in Conflict & Terrorism (2006) 123–145, doi: 10.1080/10576100500522215.
See, e.g., M. Bolhuis and J. van Wijk, ‘Alleged War Criminals in the Netherlands: Excluded from Refugee Protection, Wanted by the Prosecutor’, 12(2) European Journal of Criminology (2015) 151–168, doi: 10.1177/1477370814554721, p. 156; United Nations Security Council, supra note 40; S. Betti, ‘The Duty to Bring Terrorists to Justice and Discretionary Prosecution’, 4(5) Journal of International Criminal Justice (2006) 1104–1116, doi: 10.1093/jicj/mql055, pp.1109–1110.
Sarfati, supra note 11, p. 280.
Genocide Network (Eurojust), Cumulative Prosecution of Foreign Terrorist Fighters for Core International Crimes and Terrorism-Related Offences (2020), available online at www.eurojust.europa.eu/sites/default/files/Partners/Genocide/2020-05_Report-on-cumulative-prosecution-of-FTFs_EN.PDF, p. 16 (accessed 2 February 2023). See also Sarfati, supra note 11, p. 280.
See generally A. Cornford, ‘Beyond Fair Labelling: Offence Differentiation in Criminal Law’, 42(4) Oxford Journal of Legal Studies (2022), 985–1011, doi: 10.1093/ojls/gqac007.
Sarfati, supra note 11, pp. 279–281.
K. Ambos and I. Stegmiller, ‘Prosecuting International Crimes at the International Criminal Court: Is There a Coherent and Comprehensive Prosecution Strategy?’, 59(4) Crime, Law and Social Change (2013) 415–437, doi: 10.1007/s10611-012-9407-9, p. 419; Office of the Prosecutor, supra note 18, para. 4.
C. Aptel, ‘Prosecutorial Discretion at the icc and Victims’ Right to Remedy: Narrowing the Impunity Gap’, 10(5) Journal of International Criminal Justice (2012) 1357–1376, doi: 10.1093/jicj/mqs077, pp. 1361–1363.
C. Davis, Prosecutorial Discretion in International Criminal Justice, PhD Thesis, Leiden University, 2022, p. 263.
Ministerie van Justitie en Veiligheid, Rapportagebrief Internationale Misdrijven 2019 (2833990, 2020), p. 3.
The analysis here concurs with policies implemented between 2012 and 2018 regarding a ‘realistic perspective on successful investigation and prosecution within a reasonable period’. The author could not find a more recent version of this policy. For the old policy, see Ministerie van Veiligheid en Justitie, ‘Aanwijzing Afdoening van Aangiften Met Betrekking Tot de Strafbaarstellingen in de Wet Internationale Misdrijven’ (2012), available online at wetten.overheid.nl/bwbr0030859/2012-01-01, para 3.1.2.
Minister en Staatssecretaris van Justitie en Veiligheid, Vaststelling van de begrotingsstaten van het Ministerie van Veiligheid en Justitie (vi) voor het jaar 2018 (34 775 vi, nr. 94, 2017), footnote 8.
Human Rights Watch, The Long Arm of Justice: Lessons from Specialized War Crimes Units in France, Germany, and the Netherlands (2014), available online at www.hrw.org/sites/default/files/reports/IJ0914_ForUpload.pdf, pp. 38–39 (accessed 2 February 2023).
Ibid., p. 39.
Bolhuis and van Wijk, supra note 41, p. 156.
See, e.g., Minister en Staatssecretaris van Justitie en Veiligheid, Vaststelling van de begrotingsstaten van het Ministerie van Veiligheid en Justitie (vi) voor het jaar 2018 (34 775 vi, nr. 7, 2017), p. 18.
Human Rights Watch, supra note 52, pp. 38–39.
See also K. Aksamitowska, ‘Digital Evidence in Domestic Core International Crimes Prosecutions: Lessons Learned from Germany, Sweden, Finland and the Netherlands’, 19(1) Journal of International Criminal Justice (2021), 189–211, doi: 10.1093/jicj/mqab035.
Smeulers, supra note 15, p. 289.
According to one estimate, one case costs around eur 1.5 million every year, see Ibid.
Comments of H. van der Wilt at Tweede Kamer, Situatie van de Jezidi’s (Vervolg) Met Juridische Experts (Hybride) (2022), available online at www.debatgemist.tweedekamer.nl/debatten/situatie-van-de-jezidi%E2%80%99s-vervolg-met-juridische-experts-hybride (accessed 2 February 2023).
Bergsmo, supra note 13, p. 124.
See, e.g., Nieuwsuur, ‘om wil jihadisten al in is-gebied vervolgen’, nos (16 February 2017), available online at www.nos.nl/l/2158458 (accessed 2 February 2023); This article defines ‘foreign fighters’ as ‘individuals, driven mainly by ideology, religion and/or kinship, who leave their country of origin or their country of habitual residence to join a party engaged in an armed conflict’, a definition taken from de Guttry, Capone and Paulussen. See A. de Guttry, F. Capone and C. Paulussen (eds), ‘Introduction’ in Foreign Fighters under International Law and Beyond (tmc Asser Press, the Hague, 2016), p. 2.
Thynne, supra note 9, p. 265.
deGuzman and Schabas, supra note 16, p. 54.
For a discussion on this subject, see, e.g., K.J. Heller, ‘Situational Gravity Under the Rome Statute’ in C. Stahn and L. van den Herik (eds), Future Directions in International Criminal Justice (tmc Asser Press/Cambridge University Press, The Hague, 2008), pp. 1–35; W. Schabas, ‘Prosecutorial Discretion v. Judicial Activism at the International Criminal Court’, 6(4) Journal of International Criminal Justice (2008) 731–761, doi: 10.1093/jicj/mqn045.
Human Rights Watch, supra note 52, pp. 38–39.
deGuzman and Schabas, supra note 16, p. 54, 56.
Minister en Staatssecretaris van Justitie en Veiligheid, supra note 51, p. 10.
Human Rights Watch, supra note 52, p. 39.
Bergsmo, supra note 13, pp. 197, 203.
See, e.g., deGuzman and Schabas, supra note 16, pp. 56–58.
Smeulers, supra note 15, p. 269. See also the interest taken in accountability for the crimes against the Yazidis, at Tweede Kamer, supra note 60.
District Court the Hague, Public Prosecutor v. Oussama A., ecli:nl:rbdha:2019:7430, 23 July 2019.
Ibid., paras 4.4, 5.4. See also Court of Appeal The Hague, Public Prosecutor v. Oussama A., ecli:nl:ghdha:2021:102, 26 January 2021.
Public Prosecutor v. Oussama A., supra note 73, para. 5.3.4.2.
Ibid.
Ibid.
Ibid., paras 4.3.2, 5.3.2.
Ibid., para. 8.3.
District Court the Hague, Public Prosecutor v. Ahmad al-Y., ecli:nl:rbdha:2021:3998, 21 April 2021, para. 4.4.2.1.
A second video was identified, also on social media, in which he could be seen interrogating a detainee in a demeaning way. However, the court decided that the second video does not meet the threshold for this crime, since it was not degrading or humiliating to such an extent in order to meet the threshold required for it to be considered a war crime. On appeal, both war crimes charges were dismissed, as the court found that the conduct did not meet the relevant threshold. See Ibid., paras 4.4.2.1, 5.4.2.3.
Ibid., para. 4.4.2.1.
Public Prosecutor v. Yousra L., supra note 1.
Ibid., paras 6.4, 15.
Ibid., para. 7.4.
Zwanenburg and Bartels, supra note 6, p. 240.
Public Prosecutor v. Yousra L., supra note 1, para. 4.4.2.
Ibid., para. 15.
Ibid., para. 12.3.2.
District Court the Hague, Public Prosecutor v. Ahmad al-K., ecli:nl:rbdha:2021:7533, 16 July 2021.
Jabhat al-Nusra was a group affiliated with al-Qaida fighting in Syria. See Ibid., paras 1, 4.4.1.
Ibid., para. 4.4.2.
Ibid., paras 1, 4.4.2.
Ibid., paras 6.1–6.4.2.3.
Ibid., para. 9.
G. Sluiter, ‘De Effectiviteit van de Medeplichtigheidshandelingen bij Internationale Misdrijven—de Zaken Van Anraat en Kouwenhoven’, 3 Nederlands Tijdschrift voor Strafrecht (2021) 138–148, doi:10.5553/nts/266665532021002003004, p. 143.
See also Smeulers, supra note 15, pp. 276–279, 282–283.
See, e.g., Staatssecretaris van Veiligheid en Justitie, Vaststelling van de begrotingsstaten van het Ministerie van Veiligheid en Justitie (vi) voor het jaar 2012 (33 000 vi, nr. 103, 2012), pp. 2–3.
Flight mh17 was shot down over eastern Ukraine on 17 July 2014, killing 298 individuals, including 193 Dutch nationals. In the end, the accused were charged with murder under Dutch law rather than a core international crime. The Netherlands devoted considerable resources (eur 9 million annually) to the investigation and prosecution of the downing. The War Crimes Unit has been involved in the investigation. See F. Grapperhaus and S. Blok, Goedkeuring van het op 7 juli 2017 te Tallinn tot stand gekomen Verdrag tussen het Koninkrijk der Nederlanden en Oekraïne inzake internationale juridische samenwerking met betrekking tot misdrijven die verband houden met het neerhalen van vlucht mh17 van Malaysia Airlines op 17 juli 2014 (34915, 3, 2018), p. 8; Minister en Staatssecretaris van Veiligheid en Justitie, Vaststelling van de begrotingsstaten van het Ministerie van Veiligheid en Justitie (vi) voor het jaar 2016 (34 300 vi, nr. 89, 2015), p. 18. For an overview of the case, see Stichting Vliegramp mh17, A Comprehensive Overview of Legal Proceedings Relating to the Downing of Flight mh17, available online at www.mh17.legal (accessed 2 February 2023). For the judgement, see District Court The Hague, mh17 Criminal Case, ecli:nl:rbdha:2022:14039, 17 November 2022.
See District Court The Hague, Public Prosecutor v. Eshetu A., ecli:nl:rbdha:2017:14782, 15 December 2017; District Court the Hague, Public Prosecutor v. Abdul Razaq A., ecli:nl:rbdha:2022:3410, 14 April 2022.
There could be more cases of extradition, but twelve resulted in Dutch court cases because the accused appealed against the extradition request. For an overview, see Openbaar Ministerie (Ministerie van Justitie en Veiligheid), Rechtszaken per land—Internationale Misdrijven, available online at www.om.nl/onderwerpen/internationale-misdrijven/rechtszaken-per-land (accessed 2 February 2023). See also M. Bolhuis and J. van Wijk, ‘The Aftermath of Dutch International Crimes Cases: Post-prosecution Scenarios for Nationals and Non-nationals’, 21(1) Journal of International Criminal Justice (2023) 137–165, doi: 10.1093/jicj/mqad011, pp. 149–157.
See Supreme Court, Public Prosecutor v. Hessamudin H. and Habibullah J., ecli:nl:phr:2008:bc7418, 8 July 2008; Public Prosecutor v. Abdul Razaq A., supra note 100; Supreme Court, Public Prosecutor v. Abdullah F., ecli:nl:phr:2011:br6598, 30 August 2011; District Court The Hague, Public Prosecutor v. Sébastien N., ecli:nl:rbdha:2017:14782, 15 December 2017; Public Prosecutor v. Eshetu A., supra note 100.
Mettraux explains this in his analysis of one of the cases: ‘[t]he fact that neither the accused, nor any of his subordinates, took part in the torture process does not detract from the conclusion that he was an accessory to this crime, the Court concluded’. See G. Mettraux, ‘Dutch Courts’ Universal Jurisdiction over Violations of Common Article 3 qua War Crimes’, 4(2) Journal of International Criminal Justice (2006) 362–371, doi: 10.1093/jicj/mql019, p. 369.
See G. Mettraux, ‘Response to the Comments by Zegveld and Ferdinandusse Readers’ Comments’, 4(4) Journal of International Criminal Justice (2006) 884–890, doi: 10.1093/jicj/mq1066.
See Supreme Court, Public Prosecutor v. Guus K., ecli:nl:hr:2018:2336, 18 December 2018; Supreme Court, Public Prosecutor v. Frans van A., ecli:nl:hr:2009:bg4822, 30 July 2009; Court of Appeal The Hague, Public Prosecutor v. Thiruna E., Joseph M.J., Srirangan R., Ramachandran S. and Lingaratnam T., ecli:nl:ghdha:2015:1082, 30 April 2015; District Court The Hague, Public Prosecutor v. Yvonne B., ecli:nl:rbdha:2013:bz4292, 1 March 2013.
See Openbaar Ministerie, supra note 101.
Context-case, supra note 20, para. 2.1.
Ibid., paras 3.15, 4.3.
Ibid., para. 2.1.
Ibid., para. 1.8.
Ibid., paras 1.8–1.10.
Public Prosecutor v. Maher H., supra note 20, para 1.
Thynne, supra note 9, p. 253.
Public Prosecutor v. Maher H., supra note 20, para. 4.5.2; See also Court of Appeal The Hague, Public Prosecutor v. Maher H., ecli:nl:ghdha:2016:1978, 7 July 2016, para. 13; The Public Prosecutor was unsure which exact charges to bring against H. and thus came up with this formulation, see T. Lingsma, ‘Westerse is-deserteurs: tikkende tijdbommen of gedesillusioneerde gelovigen?’, De Groene Amsterdammer (4 October 2017), available online at www.groene.nl/artikel/kijk-ze-willen-je-niet-eens-terug (accessed 2 February 2023).
Context-case, supra note 20, para. 5; Public Prosecutor v. Maher H., supra note 20, para. 4.1.
See, e.g., Context-case, supra note 20, para. 12.55.
Public Prosecutor v. Maher H., supra note 20, para. 4.5.2.
Ibid.
Ibid., para. 13.
Minister van Justitie, Vaststelling van de begrotingsstaten van het Ministerie van Justitie (vi) voor het jaar 2010 (32 123 vi, nr. 106, 2010), pp. 8–9; Ministerie van Justitie en Veiligheid, supra note 49, p. 2.
M. van Noorloos, ‘De Strafrechtelijke Aanpak van Terrorisme En Syriëgangers Vanaf 2014’, 45(7) Delikt en Delinkwent (2015) 568–597, p. 580.
Inspectie Justitie en Veiligheid, Onderzoek Naar de Taakuitvoering Bij de Landelijke Eenheid (2021), available online at www.inspectie-jenv.nl/binaries/inspectie-venj/documenten/rapporten/2021/12/02/rapport-pol-landelijke-eenheid-cluster-cter/Onderzoek+naar+de+taakuitvoering+bij+de+Landelijke+Eenheid.pdf, p. 13 (accessed 2 February 2023); Ministerie van Justitie en Veiligheid, Rapportagebrief Internationale Misdrijven 2020 (3554904, 2021), p. 2.
Human Rights Watch, supra note 52, p. 39.
Van Schaack, supra note 24, p. 5.
See de Graaf, supra note 35, p. 105.
See also Van Schaack, supra note 24, p. 6.
See Public Prosecutor v. Hessamudin H. and Habibullah J., supra note 102, para. 6.4.
The relatively low evidential threshold of the war crime of outrage upon dignity has been analysed in relation to the Yousra L.-case, see Zwanenburg and Bartels, supra note 6, pp. 243–246.
Trial International, Terrorism and International Crimes: Prosecuting Atrocities for What They Are (2020), available online at www.trialinternational.org/wp-content/uploads/2020/03/TRIAL-International_UJAR-2020_DIGITAL.pdf, p. 14 (accessed 2 February 2023).
Public Prosecutor v. Ahmad al-K., supra note 90, para. 1; Public Prosecutor v. Ahmad al-Y., supra note 80, para. 4.4.2.1.
Centrum Internationaal Recht (Ministerie van Buitenlandse Zaken), mla Initiative, available online at www.centruminternationaalrecht.nl/mla-initiative (accessed 2 February 2023).
van der Wilt, supra note 17, p. 250; Ministerie van Justitie en Veiligheid, supra note 122, pp. 6–7.
Human Rights Watch, supra note 52, p. 39.
Openbaar Ministerie, supra note 101.
Saul, supra note 9, pp. 159–164. Exceptionally, it must be noted that the court recognised universal jurisdiction charges for terrorism-related charges in the Ahmad al-K-case and the Ahmad al-Y-case, see L. Yanev, ‘Syrian War Crimes Trials in The Netherlands: Claiming Universal Jurisdiction Over Terrorist Offences and the War Crime of Outrages Upon Personal Dignity of the Dead’, in D. Dam-De Jong and F. Amtenbrink (eds.), Netherlands Yearbook of International Law 2021 (T.M.C. Asser Press, The Hague, 2021), pp. 306–312.
Openbaar Ministerie, supra note 101; Smeulers, supra note 15, pp. 271, 290.
Smeulers, supra note 15, pp. 289–290.
Bergsmo, supra note 13, p. 199; See also M. Bachrach, ‘The Protection and Rights of Victims under International Criminal Law’, 34(1) International Lawyer (2000) 7–20.
S. Blok, Antwoord op vragen van de leden Van Toorenburg en Van Helvert over de uitzending ‘wnl op Zaterdag‘ d.d. 7 maart 2020 (ah 2397, 2020), p. 3; See also Argos (Human/vpro), Jezidi-Getuigenissen Ongehoord (2022), available online at www.vpro.nl/argos/media/luister/argos-radio/onderwerpen/2022/Jezidi-getuigenissen-ongehoord.html#201236a9-cf5e-4b1e-bbdb-89feaee1bee9 (accessed 2 February 2023).
A. Whiting, ‘In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered’, 50(2) Harvard International Law Journal (2009) 323–363, p. 332; See also V. Peskin, ‘Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda’, 4(2) Journal of Human Rights (2005) 213–231, doi: 10.1080/14754830590952152, pp. 222–225.
Human Rights Watch, supra note 52, pp. 38–39.
deGuzman and Schabas, supra note 16, pp. 21–27, 35; See also D. Robinson, ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court’, 14(3) European Journal of International Law (2003) 481–505, pp. 483–484; Bergsmo supra note 13, p. 192.
Saul, supra note 9, p. 165.
See also Van der Heide and Geenen, supra note 35; J. McCulloch and S. Pickering, ‘Pre-Crime and Counter-Terrorism: Imagining Future Crime in the “War on Terror”’, 49 British Journal of Criminology (2009) 628–645, doi: 10.1093/bjc/azp023.
N. Norberg, ‘Terrorism and International Criminal Justice: Dim Prospects for a Future Together’, 8(1) Santa Clara Journal of International Law (2010) 11–50, p. 13.
See, e.g., Public Prosecutor v. Eshetu A., supra note 100, para. 20.
Ibid.
Public Prosecutor v. Guus K., supra note 105, para. Q.
Public Prosecutor v. Hessamudin H. and Habibullah J., supra note 102, para. 5.2.
Context-case, supra note 20, para. 2.1.
Trial International, supra note 129, p. 14; Saul, supra note 9, pp. 162–163. See also T. Anwar, ‘Unfolding the Past, Proving the Present: Social Media Evidence in Terrorism Finance Court Cases’, 14(4) International Political Sociology (2020) 382–398, doi: 10.1093/ips/olaa006, p. 383; Van Schaack, supra note 24, p. 6.
Wittendorp and Bakker, supra note 22, p. 81; Saul, supra note 9, p. 162; de Graaf, supra note 35, p. 113; See also Z. Scanlon, ‘Punishing Proximity: Sentencing Preparatory Terrorism in Australia and the United Kingdom’, 25(3) Current Issues in Criminal Justice (2013) 763–784.
Trial International, supra note 129, p. 12.
Nieuwsuur, supra note 62.
Trial International, supra note 129, p. 12.
Yet, this sense of victimhood is felt strongly in society, see, e.g., A. Garrison, ‘Defining Terrorism: Philosophy of the Bomb, Propaganda by Deed and Change through Fear and Violence’, 17(3) Criminal Justice Studies (2014) 259–279, doi: 10.1080/1478601042000281105, p. 273; D. Waxman, ‘Living with Terror, Not Living in Terror: The Impact of Chronic Terrorism on Israeli Society’, 5(5–6) Perspectives on Terrorism (2011) 4–26, pp. 12–14.
T. Bouwknegt, Opsporing, Vervolging En Berechting van Internationale Misdrijven in Nederland (Nederlands Instituut voor oorlogs-, holocaust- en genocidestudies, Amsterdam, 2019), p. 35, available online at www.niod.nl/nl/publicaties/opsporing-vervolging-en-berechting-van-internationale-misdrijven-nederland (accessed 2 February 2023); Grapperhaus and Blok, supra note 99, p. 8.
Some individuals in the Context-case were prosecuted in absentia. However, this is not possible in every case since the fair trial rights of the accused are not always protected sufficiently when prosecuting in absentia, in particular the right of attendance. Furthermore, some claim that non-repatriation goes against the right of adequate reparation for the victims, see Lingsma, supra note 114; Paulussen and Pitcher, supra note 36, pp. 22–23; Nieuwsuur, supra note 62; Cuyckens, supra note 9, p. 206.
See also L. Bjurström, ‘Syria: Why Dutch Prosecutors Link Terrorism and War Crimes’, JusticeInfo.net (18 June 2020), available online at www.justiceinfo.net/en/44620-syria-why-dutch-prosecutors-link-terrorism-and-war-crimes.html (accessed 2 February 2023); Saul, supra note 9, p. 165.
Thynne, supra note 9, p. 258; Van der Heide and Geenen, supra note 35, pp. 163–164.
Nieuwsuur, supra note 62.
See, e.g., nos Nieuws, ‘Rechter bevestigt: ophalen is-vrouwen noodzakelijk voor vervolging’, nos (12 May 2022), available online at www.nos.nl/artikel/2428604-rechter-bevestigt-ophalen-is-vrouwen-noodzakelijk-voor-vervolging (accessed 2 February 2023).
Other issues have also played a role, see Argos, supra note 139; Blok, supra note 139, p. 3; E. Rosenberg and M. Ingelby, ‘Eerst Assads strijder, nu asiel in Nederland’, nrc (4 December 2020), available online at www.nrc.nl/nieuws/2020/12/04/gevlucht-uit-syrie-maar-nog-steeds-bedreigd-a4022478 (accessed 2 February 2023); Human Rights Watch, supra note 52, p. 47.
Argos, supra note 139; Van Schaack, supra note 24, pp. 35–36. The Netherlands financially supports these initiatives and has recognised the importance of these organisations, see Ministerie van Justitie en Veiligheid, supra note 49, p. 8. For UN initiatives, see unitad, supra note 3; iiim, International, Impartial and Independent Mechanism, available online at www.iiim.un.org (accessed 2 February 2023).
Argos (Human/vpro), Onderzoek Naar Nederlandse is’ers Te Terughoudend (2022), available online at www.nporadio1.nl/fragmenten/argos/9f8a474e-7991-4e73-b8d8-8e08df64d586/2022-02-12-onderzoek-naar-nederlandse-isers-te-terughoudend (accessed 2 February 2023).
Additionally, another woman was accused of pillaging as a war crime, see C. Rosman, ‘Nederlandse is-vrouw gebruikte slavin als ‘rechteloos voorwerp’’, ad (14 February 2023), available online at www.ad.nl/binnenland/nederlandse-is-vrouw-gebruikte-slavin-als-rechteloos-voorwerp~ab1c5520 (accessed 3 March 2023).
Rosenberg and Ingelby, supra note 163; T. Lingsma, ‘Waarom worden misdadige Assad-handlangers in Nederland niet opgepakt?’, Amnesty International (2021), available online at www.amnesty.nl/wordt-vervolgd/waarom-worden-misdadige-assad-handlangers-in-nederland-niet-opgepakt (accessed 2 February 2023); H. van der Wilt, Discussienota Situatie Jezidi’s Vaste Kamercommissie bz (2022), p. 3, available online at www.tweedekamer.nl/downloads/document?id=490e7d25-682e-447b-9c51-d59257c6f998&title=Position%20paper%20H.%20van%20der%20Wilt%20t.b.v.%20rondetafelgesprek%20Situatie%20van%20de%20Jezidi%E2%80%99s%20%28vervolg%29%20met%20juridische%20experts%20d.d.%2017%20februari%202022.docx (accessed 2 February 2023). There has been an individual arrested who is suspected of war crimes and crimes against humanity allegedly committed as a member of a pro-government militia in Syria, see Openbaar Ministerie (Ministerie van Justitie en Veiligheid), Alleged militia member associated with Syrian regime arrested in the Netherlands on suspicion of war crimes (2022), available online at www.prosecutionservice.nl/topics/international-crimes/news/2022/05/24/alleged-militia-member-associated-with-syrian-regime-arrested-in-the-netherlands-on-suspicion-of-war-crimes (accessed 3 February 2023).
See Argos, supra note 139; Argos, supra note 165; Blok, supra note 139.
It must be said she only analysed cases related to Syria, see van Schaack, supra note 24.
Ibid., pp. 4–5. See also van der Wilt, supra note 167, pp. 2–3; Thynne, supra note 9, p. 252.
van Schaack, supra note 24, p. 7.
Ibid., pp. 6–7.
For similar recommendations, see Global Counterterrorism Forum, Memorandum on Criminal Justice Approaches to the Linkages between Terrorism and Core International Crimes, Sexual and Gender-Based Violence Crimes, Human Trafficking, Migrant Smuggling, Slavery and Crimes against Children (2021), available online at www.thegctf.org/Portals/1/Documents/Links/Meetings/2021/19CC11MM/CJROL%20Memorandum/CJ-ROL_Memo-ENG.pdf?ver=BqP5OK_Txt0tY8JFGamBzw%3d%3d (accessed 2 February 2023).
Thynne, supra note 9, pp. 257–258.
M. Damaška, ‘What Is the Point of International Criminal Justice?’, 83(1) Chicago-Kent Law Review (2007) 329–365; Thynne, supra note 9, p. 265; See also D. McKeever, ‘International Humanitarian Law and Counter-Terrorism: Fundamental Values, Conflicting Obligations’, 69(1) International & Comparative Law Quarterly (2020) 43–78, doi: 10.1017/S0020589319000472. Ending impunity more generally could also be a goal for terrorism-related prosecutions, albeit less emphasised, see C. Paulussen (icct), Impunity for International Terrorists? Key Legal Questions and Practical Considerations (2012), available online at www.icct.nl/publication/impunity-international-terrorists-key-legal-questions-and-practical-considerations (accessed 2 February 2023).
See Thynne, supra note 9; Saul, supra note 9; Cuyckens, supra note 9; McKeever, supra note 175.
McKeever, supra note 175, pp. 53–68; Sarfati, supra note 11, pp. 284–286.
Saul, supra note 9, p. 159.
van der Wilt, supra note 167, p. 3.
Thynne, supra note 9, pp. 261–264; Sarfati, supra note 11, p. 283.
van der Wilt, supra note 167, pp. 2–3.
For the distinction between a suspect-driven and offence-driven approach, see Bergsmo, supra note 13, p. 233.
See, e.g., Public Prosecutor v. Ahmad al-K., supra note 90, para. 1; Public Prosecutor v. Ahmad al-Y., supra note 80, para. 4.4.2.1.
van der Wilt, supra note 17, p. 250.
See also Argos, supra note 139; Van Schaack, supra note 24, p. 6; Argos, supra note 165; Aksamitowska, supra note 57, pp. 208–211.
Bergsmo, supra note 13, pp. 139–141, 188–192.
See also Ibid., p. 270.
Comments of M. de Hoon at Tweede Kamer, supra note 60.
Comments of H. van der Wilt at Ibid.
Comments of H. van der Wilt at Ibid.