The Prosecution of Dutch Foreign Fighters Detained on Syrian Territory The (un)lawfulness of the Netherlands' refusal to repatriate and prosecute analysed under international law

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Master Thesis

Amsterdam Law School

International and European Law

Track: Public International Law

The Prosecution of Dutch Foreign Fighters Detained on Syrian Territory

The (un)lawfulness of the Netherlands’ refusal to repatriate and prosecute analysed under international law

Nuria de Jong

10685510

nuriadejong@hotmail.com

Dhr. L.A. Castellanos-Jankiewicz

22 July 2020

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Abstract

The unprecedented flow of foreign fighters into Syria since 2011 has confronted many states with the question how to counter this phenomenon. Many foreign fighters who have been detained by the Kurdish led Syrian Democratic Forces (SDF) since the fall of ISIS’ caliphate want to return to their home countries. This has led to an intense debate on whether states should repatriate their nationals and prosecute them in their national courts. Due to a fear of terrorist attacks upon return, many states have refused to do so. The Netherlands is one of them and it does not offer any active assistance to Dutch foreign fighters that want to return. However, the current situation in the SDF guarded prisons is unstable and there is a risk of fighters escaping. Moreover, many experts have argued that national states should repatriate and prosecute their nationals for moral, legal and security reasons. Therefore, it is highly relevant to explore whether the Netherlands could be obliged under international law to repatriate and prosecute its foreign fighters. This thesis analyses the three international law regimes that are applicable to the foreign fighters detained on Syrian territory, which are international humanitarian law, international human rights law and counterterrorism law. It explains that the Netherlands is legally able to prosecute, for it has jurisdiction based on the active nationality principle and it has domestic laws on the basis of which foreign fighters could be prosecuted. After further analysing the applicable fields of international law, it concludes that there is no self-standing legal obligation under international law for the Netherlands to repatriate the Dutch foreign fighters and to prosecute them in Dutch courts. However, Security Council resolutions and rules of international humanitarian law require that the foreign fighters are being brought to justice. The only possibility for the Netherlands to secure compliance with these obligations in conformity with international (human rights) law is repatriation and prosecution in the Netherlands.

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Introduction

The flow of foreign fighters leaving their home state in order to join one of the parties involved in the Syrian conflict has been unprecedented, both in numbers and in the breath of geographic origin.1_{Since 2011, many states have been confronted with the question of how to}

counter this phenomenon. In the first years, the focus was on strategies to prevent people from travelling to Syria. However, as a result of the collapse of ISIS’ caliphate many foreign

fighters present in Syria wanted to go back home. Consequently, their home states shifted their attention to the question how to deal with these returning fighters.2

There has been considerable discussion about this question and in particular about how and where the foreign fighters should be prosecuted. Most states do not make any efforts to repatriate their nationals and to prosecute them in their countries of origin.3_{The reason is that}

they fear that foreign fighters will carry out terrorist attacks upon their return.4_{In 2017, the}

UN Security Council (UNSC) also expressed its ‘grave concern over the acute and growing threat posed by foreign terrorist fighters returning or relocating … to their countries of origin or nationality’.5

However, the current situation in Syria concerning the foreign fighters that are still there is untenable. When ISIS lost territory, the majority of the foreign fighters was

imprisoned by the Kurdish led Syrian Democratic Forces (SDF). The Kurdish authorities have repeatedly called on (European) states to repatriate the fighters of their nationality and

prosecute them in national courts, since it neither has the capacity nor the resources to conduct the prosecutions.6_{As most states have not responded to this call, the foreign fighters}

are stuck in detention. Moreover, there is a risk that the foreign fighters will escape from the

1_{Sandra Krähenmann, ‘Foreign Fighters under International Law’ (2014) Publication for the Geneva Academy}

of International Humanitarian Law and Human Rights <

https://repository.graduateinstitute.ch/record/295212/usage> accessed 17 January 2020, 9.

2_{Hanne Cuyckens and Christophe Paulussen, ‘The Prosecution of Foreign Fighters in Western Europe: The}

Difficult Relationship between Counter-Terrorism and International Humanitarian Law’ (2019) 24(3) Journal of Conflict & Security Law 537, 541.

3_{ibid 537.}

4_{Krähenmann (n 1) 12.}

5_{UNSC Res 2396 (21 December 2017) UN Doc S/RES/2396.}

6_{Anthony Dworkin, ‘Beyond Good and Evil: Why Europe Should Bring ISIS Foreign Fighters Home’ (2019)}

European Council on Foreign Relations <

https://www.ecfr.eu/publications/summary/beyond_good_and_evil_why_europe_should_bring_isis_foreign_figh ters_home> accessed 9 June 2020.

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poorly guarded prisons and return to their home countries under the radar, which would be much worse than organized repatriation.7

The Netherlands is one of the refusing countries and it does not offer active assistance to Dutch foreign fighters that want to return.8_{It has proposed various alternatives for}

prosecution ‘in the region’, such as establishing an international tribunal, or leaving the prosecution to the Iraqi or Kurdish courts. However, attempts at realizing these options have not been successful yet. It has been argued by many experts that repatriation and prosecution in the Netherlands is the best approach for moral, legal and security reasons.9_{Therefore, the}

aim of this research is to explore whether states have an obligation under international law to repatriate and prosecute their nationals.

To answer this question, the first chapter will provide some background information to the problem: who are the (Dutch) foreign fighters that might return, why is there a problem with regards to the repatriation and the prosecution of these fighters and what is the position of the Dutch government regarding prosecution of its nationals? Then, the status of the foreign fighters under international law will be analysed (chapter 2). In chapter 3, it will be determined whether the Netherlands is actually legally able to prosecute Dutch foreign fighters who travelled to Syria. The final chapter will use the previous findings to explore whether the Netherlands has an obligation under international law to repatriate and prosecute the Dutch foreign fighters detained on Syrian territory.

7_{Nationaal Coördinator Terrorismebestrijding en Veiligheid (NCTV), ‘Situatie Noord-Syrië’}

<https://www.nctv.nl/onderwerpsen/dtn/actueel-dreigingsniveau/situatie-noord-syrie> accessed 27 April 2020; Renske van der Veer R and Edwin Bakker, ‘The Need to Maintain Control over Militant Jihadists’ (2019) International Centre for Counter-Terrorism < https://icct.nl/publication/the-need-to-maintain-control-over-militant-jihadists/> accessed 5 June 2020.

8_{Van der Veer and Bakker (n 7).}

9_{See for example Van der Veer and Bakker (n 7); David Malet, ‘ISIS Foreign Fighters: Keep Your Enemies}

Closer’ (2019) Australian Institute of International Affairs <

http://www.internationalaffairs.org.au/australianoutlook/isis-foreign-fighters-keep-enemies-closer/> accessed 9 June 2020.

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1. Background

1.1 Defining Foreign Fighters

The presence of foreign fighters in an armed conflict is not a new phenomenon.10_{Over the}

past centuries, armed forces comprised from the citizens of a certain country were not always sufficient to win from or defend against the enemy. Therefore, states would employ foreigners in their forces as well, which were called mercenaries.11_{. These mercenaries would take part}

in the conflict primarily for financial reasons.12_{Today, the appearance of classic mercenaries}

in the battlefield is rare. The phenomenon of mercenaries has changed over the years and it has taken on different forms. One of these is the foreign fighter phenomenon.13

What distinguishes a foreign fighter from a mercenary is that a foreign fighter is not primarily motivated to join the fight by financial or material rewards.14_{The reasons for}

joining a conflict as a foreign fighter are diverse; they can stem from religious or political ideologies, economic and social conditions, a sense of belonging or from a combination of these.15_{This is illustrated by various examples of conflicts involving foreign fighters. During}

the Spanish civil war, communist foreign fighters joined the International Brigades to fight against the Nationalists, Jewish fighters fought in the Israeli army in the 1948 Israeli-Arab war for independence and in the Soviet-Afghan War, Muslims joined the conflict to defend their religion.16_{Despite the different nature of these examples, they do share a common}

element; a so called ‘transnational identity’, which connects the foreign fighters to ‘foreign communities and the perceived need to support fellow members of that community under threat’.17

Although the conflicts that have attracted foreign fighters were based on different religious and political identities, foreign fighters are mainly associated with jihadists and

10_{Sandra Krähenmann, ‘Foreign Fighters under International Law and National Law’ (2015) 20 Recueils de la}

Societe Internationale de Droit Penal Militaire et de Droit de la Guerre 249, 250.

11_Elżbieta_{Karska and Karol Karski, ‘Introduction: The Phenomenon of Foreign Fighters and Foreign Terrorist}

Fighters’ (2016) 18 International Community Law Review 377, 378.

12_{Krähenmann (n 10) 249-50.} 13_{Karska and Karski (n 11) 378.} 14_{Krähenmann (n 10) 249-50.} 15_{Karska and Karski (n 11) 379.}

16_{David Malet, ‘Why Foreign Fighters? Historical Perspectives and Solutions’ (2010) 54(1) Orbis 97.} 17_{Andrea De Guttry, Francesca Capone and Christophe Paulussen, Foreign Fighters under International Law}

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conflicts in the Muslim world.18_{This connotation is an inaccurate depiction of reality, as}

research data show that only half of the foreign fighters involved in conflicts in recent decades have been jihadis.19_{It might be explained by the fact that foreign fighters have been}

present in ‘virtually all conflicts’ in the Islamic world since the Soviet invasion of

Afghanistan. The phenomenon as well as the term ‘foreign fighter’ were introduced to ‘the public consciousness’ in particular after the 9/11 attacks against the United States of America, since many (including western) foreigners had joined the Taliban and al-Qaeda.20_Moreover,

research on foreign fighters as such only started in the early 2000s, after the foreign fighter presence in Iraq was elaborately covered by the media. During this period, there has been a dramatic rise in the number of foreign fighters joining jihadi movements in the Middle East. Consequently, most of the research focused on those contemporary jihadis, which might have contributed to the conflation of foreign fighters with Muslims or jihadists.21

Research on foreign fighters has expanded over the past decade, but the phenomenon - in particular its legal aspects and the following law-respecting responses - remains

understudied. Moreover, there is still no uniform definition of the foreign fighter.22_This

research will use the following definition introduced by Krähenmann:

A foreign fighter is an individual who leaves his or her country of origin or habitual residence to join a non-state armed group in an armed conflict abroad and who is primarily motivated by ideology, religion, and/or kinship.23

Krähenmann’s definition is similar to those used by other scholars,24_{however, it is}

narrower because it only focuses on non-state armed groups. A narrow definition is adopted here because the research focus will be on foreign fighters who have joined such non-state armed groups rather than governmental forces.

In the context of this research it is important to note that those who have left their country to join one of the insurgent groups in Syria and Iraq are often referred to as foreign

19_{David Malet, ‘Foreign Fighter Mobilization and Persistence in a Global Context’ (2015) 27 Terrorism and}

Political Violence 454, 454.

20_{Sandra Krähenmann, ‘Foreign Fighters under International Law’ (2014) Publication for the Geneva Academy}

of International Humanitarian Law and Human Rights <

https://repository.graduateinstitute.ch/record/295212/usage> accessed 17 January 2020, 5.

21_{Malet (n 19) 456}_. 22_{Krähenmann (n 20) 5.} 23_{ibid 6.}

24_{See for example the definitions used by De Guttry, Capone and Paulussen (n 17) and Thomas Hegghammer,}

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terrorist fighters. The UNSC uses this term in resolution 2170 and resolution 2178, in which it calls upon states to take measures against those foreign terrorist fighters.25_{By describing}

foreign terrorist fighters as ‘individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection with armed conflict’,26_{the UNSC looks at the foreign fighter issue mainly from a}

counterterrorism perspective.27_{From the perspective of international law, such a limited view}

is ‘both simplistic and legally confusing’, because the foreign fighter issue is governed by different branches of international law, and not only by the legal framework surrounding terrorism.28_{Therefore, in this research the broader term ‘foreign fighter’ will be used.}

(Dutch) Foreign Fighters in Syria

Having defined who is to be considered a foreign fighter, it is important to take a closer look at those who have left their countries in order to join non-state armed groups in the civil war in Syria, and in particular the Dutch foreign fighters that are the subject of this research. The influx of thousands of foreign jihadist fighters in Syria and Iraq since 2011 is unprecedented in two aspects, namely their rate of entry and the breadth of geographical origin.29_{In the early}

phase of the conflict, most foreign fighters joined the al-Qaeda off shot Jabhat al-Nusra, but that changed with the rapid rise of ISIS from 2013 onward. It is estimated that since then around 80 percent of the foreign fighters joined ISIS.30_{In 2017, the Soufan Center evaluated}

the existing data on the number of foreign fighters that had joined ISIS both before and after the declaration of the caliphate in June 2014, and came up with an estimate of over 40.000 foreigners who had come from more than 110 countries.31_{Although the growth of the foreign}

fighter movement stopped when ISIS began to lose territory, this might just be temporary

25_{UNSC Res 2170 (15 August 2014) UN Doc S/RES/2170; UNSC Res 2178 (24 September 2014) UN Doc}

S/RES/2178.

26_{UNSC Res 2178 (n 25).}

28_{Krähenmann (n 20) 3.} 29_{Krähenmann (n 10) 252.}

30_{Alex Schmid, ‘Foreign (Terrorist) Fighter Estimates: Conceptual and Data Issues’ (2015) International Centre}

for Counter-Terrorism < https://www.icct.nl/wp-content/uploads/2015/10/ICCT-Schmid-Foreign-Terrorist-Fighter-Estimates-Conceptual-and-Data-Issues-October20152.pdf> accessed 9 June 2020, 2.

31_{Richard Barrett, ‘Beyond the Caliphate: Foreign Fighters and the Threat of Returnees’ (2017) The Soufan}

Centre < https://thesoufancenter.org/wp-content/uploads/2017/11/Beyond-the-Caliphate-Foreign-Fighters-and-the-Threat-of-Returnees-TSC-Report-October-2017-v3.pdf> accessed 9 June 2020, 7.

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because ‘the push and pull factors that attracted foreigners in such unprecedented numbers remain’.32

The number of fighters coming from Europe has been much higher than in other conflicts. The Netherlands is among those countries of provenance that have proportionally the highest numbers of fighters. The AIVD, the General Intelligence and Security Service of the Netherlands, states that as of 1 April 2020, about 300 Dutch foreign fighters have

travelled to Syria. The lion’s share of these fighters has joined ISIS. It is estimated that 100 Dutch fighters have died in the war, 60 have returned to the Netherlands and that a small group is residing in Turkey. There are still 120 Dutch foreign fighters present in Syria.33

1.2 The Foreign Fighter Problem

During the first years of the Syrian civil war, foreign fighter concerns were focused on those who left their countries in order to join one of the parties in the conflict. However, following the collapse of the ISIS caliphate, the attention has shifted to those foreign fighters who want to return and those who have returned already.34_{The SDF, led by the Kurdish YPG,}

reconquered the final bloc of ISIS territory and captured the majority of ISIS fighters, including many Europeans. These ISIS members are now being held in prisons and refugee camps controlled by the Kurdish autonomous administration in Syria.35_{The Kurdish}

authorities do not have the resources and capacity to process all these captives, and they have repeatedly called on (European) states to help and to take responsibility for their own

nationals.36

However, European states have not been enthusiastic about repatriating and

prosecuting their foreign fighters, arguing that ‘it was these people’s choice to leave in the first place and thus that they have to face the consequences’.37_{Governments are reluctant to}

32_{ibid 9-10.}

33_{Algemene Inlichtingen- en Veiligheidsdienst (AIVD), ‘Uitreizigers en terugkeerders’ <}

https://www.aivd.nl/onderwerpen/terrorisme/dreiging/uitreizigers-en-terugkeerders> accessed 10 June 2020.

34_{Cuyckens and Paulussen (n 27) 541.}

35_{Anthony Dworkin, ‘Beyond Good and Evil: Why Europe Should Bring ISIS Foreign Fighters Home’ (2019)}

European Council on Foreign Relations <

https://www.ecfr.eu/publications/summary/beyond_good_and_evil_why_europe_should_bring_isis_foreign_figh ters_home> accessed 9 June 2020.

36_{ibid; Hans van Zon, ‘Koerdische commandant: Nederland, neem IS-strijders terug en berecht ze’ AD (17}

February 2018) < https://www.ad.nl/buitenland/koerdische-commandant-nederland-neem-is-strijders-terug-en-berecht-ze~adf9c1fe/?referrer=> accessed 18 June 2020; Lennart Hofman, ‘Haal Syriëgangers terug (en voorkom zo nieuwe problemen’ (2019) De Correspondent (2019) < https://decorrespondent.nl/10679/haal-syriegangers-terug-en-voorkom-zo-nieuwe-problemen/15925450413004-c7e1209d> accessed 18 June 2020.

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do so because they perceive foreign fighters as a major (terrorist) threat to their countries.38

The fear is that foreign fighters who have been trained by ISIS (or other jihadist groups) may have witnessed or even perpetrated extreme violence, can handle weapons and explosives and may plan to carry out terrorist acts in their home country. Moreover, they might recruit new members or set up new terrorist cells.39_{In other words, European governments fear the so}

called blowback effect, which refers to ‘individuals who return to carry out attacks as a part of an external directed plot, and individuals who decide to launch an attack without being

instructed to do so’.40_{That the fear for attacks by returning foreign fighters is legitimate is}

illustrated by incidents that have taken place over the past years. Mehdi Nemmouche, who shot four people in the Jewish Museum in Brussels, spent a year fighting in Syria for ISIS. He is believed to be the first European foreign fighter who returned from Syria to carry out a terror attack in Europe.41_{The Paris attacks of November 2015 and the attacks in Brussels in}

March 2016 were also carried out by ISIS returnees.42_{Still, it is important to realize that the}

foreign fighters that (try to) carry out an attack upon their return are a small minority and for most returnees, it is not the (primary) goal of their return.43

Taking into consideration the threat that returning foreign fighters pose, states do not want to be surprised by them. The situation in Syria (and Iraq) is unstable, and the Kurdish prisons and camps where most of the remaining fighters are being held are in the middle of that unstable area.44_{Foreign fighters that want to return could possibly escape and travel to}

Europe without being on the radar of intelligence services. They have the skills as well as the contacts to cross borders undetected.45_{The Dutch National Coordinator for Security and}

Counterterrorism emphasizes that the foreign fighters that want to return from Syria only now

39_ibid_{; Renske van der Veer R and Edwin Bakker, ‘The Need to Maintain Control over Militant Jihadists’}

(2019) International Centre for Counter-Terrorism < https://icct.nl/publication/the-need-to-maintain-control-over-militant-jihadists/> accessed 5 June 2020.

40_{Krähenmann (n 20) 12-13.}

41_{‘Brussels Jewish Museum murders: Mehdi Nemmouche jailed for life’ (12 March 2019) BBC News <}

https://www.bbc.com/news/world-europe-47533533> accessed 10 June 2020.

42_{Alastair Reed, Johanna Pohl and Marjolein Jegerings, ‘The Four Dimensions of the Foreign Fighter Threat:}

Making Sense of an Evolving Phenomenon’ (2017) International Centre for Counter-Terrorism <

https://icct.nl/wp-content/uploads/2017/06/ICCT-Reed-Pohl-The-Four-Dimensions-of-the-Foreign-Fighters-Threat-June-2017.pdf> accessed 9 June 2020, 6.

43_ibid.

44_{Van der Veer and Bakker (n 39).}

45_{Nationaal Coördinator Terrorismebestrijding en Veiligheid (NCTV), ‘Situatie Noord-Syrië’}

<https://www.nctv.nl/onderwerpsen/dtn/actueel-dreigingsniveau/situatie-noord-syrie> accessed 27 April 2020; Van der Veer and Bakker (n 39).

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are those that stayed until ISIS was defeated. It is therefore likely that they still adhere to ISIS’s ideas.46

The foreign fighter situation is currently untenable. There are still thousands of foreign fighters residing in Syria, the majority of which is in Kurdish prisons or camps. Despite the risk that these fighters will return to their home countries uncontrolled, European states have made no or few efforts to repatriate and prosecute ‘their’ foreign fighters and they deny any responsibility. Many experts stress ‘the need to maintain control over jihadists’, and they have advised states to change their position for moral, legal and security reasons.47_{This research}

will focus on the legal aspect. It will look at the position of the Dutch government as a case study. In the next section, the position of the Netherlands concerning its foreign fighters will be analysed.

1.3 The Position of the Dutch Government concerning the Prosecution of its Foreign Fighters

The Netherlands has been struggling with the question whether to repatriate and prosecute its foreign fighters. In October 2019, the Dutch Ministry of Justice and Security confirmed that the Dutch Public Prosecutor Service (OM) had requested the repatriation of 29 Dutch foreign fighters in order to prosecute them in the Netherlands.48_{The OM has prepared case files for}

all Dutch foreign fighters and is ready to start the prosecution.49_{However, this approach}

contradicts the policy of the Dutch government, which does not support the repatriation of foreign fighters in order to prosecute them in national courts.50

In tackling terrorism and extremism, the Netherlands has been praised for its case-by-case approach. It usually determines - via a thorough assessment - what is the appropriate intervention in each particular case in order to reduce threat levels.51_{However, with regards to}

46_ibid.

47_{See for example Van der Veer and Bakker (n 39); David Malet, ‘ISIS Foreign Fighters: Keep Your Enemies}

Closer’ (2019) Australian Institute of International Affairs

<https://www.internationalaffairs.org.au/australianoutlook/isis-foreign-fighters-keep- enemies-closer/> accessed 15 January 2020; Dworkin (n 35).

48_{‘OM wil steeds meer Syriëgangers terughalen, tegen wil van kabinet’ NOS Nieuws (24 October 2019) <}

https://nos.nl/artikel/2307416-om-wil-steeds-meer-syriegangers-terughalen-tegen-wil-van-kabinet.html> accessed 10 June 2020.

49_{Hassan Bahara and Willem Feenstra, ‘Nederlandse Syriëgangers pakken koffers om terug te keren’ Volkskrant}

(12 October 2019) < https://www.volkskrant.nl/nieuws-achtergrond/nederlandse-syriegangers-pakken-koffers-om-terug-te-keren~b105dd29/> accessed 10 June 2020.

50_{‘NOS Nieuws (n 48).}

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Dutch foreign fighters returning from Syria or Iraq, the government does not consider this approach to be applicable. On the contrary, it maintains ‘an absolute and hardly pragmatic policy line’, according to which no active assistance is ever given or even offered to Dutch returning fighters.52_{The government has indicated that leading factors for the design of this}

policy are the security situation in the region, the international relations and the security of those involved. The interests of the national security as well as the security of other Schengen countries are always taken into account.53_{Furthermore, the government does not send people}

to areas that are considered unsafe.54_{Considering the importance of security considerations,}

the question arose how to deal with foreign fighters who wanted to return to the Netherlands, but were not in a conflict zone. A 2016 policy document indicated that there were possibilities to offer more active assistance to these people, in order to facilitate prosecution in the

Netherlands. However, in 2017 the government clarified that also to these people no active assistance would be available.55

The position not to undertake any action is highly controversial, even within the government. At the time of writing, the Dutch government is a coalition of four political parties: the VVD, CDA, D66 and ChristenUnie. Coalition partners VVD and CDA - which form a majority - strongly oppose repatriation and national prosecution. They argue that foreign fighters have chosen themselves to break with the rule of law and they support

prosecution in the region – in Syria and/or Iraq.56_{Coalition partner D66 emphasizes the threat}

posed by foreign fighters returning under the radar. The chaos in Syria worsened after the Turkish operation Peace Spring in October 2019, and the risk of foreign fighters escaping the camps has only become larger. Therefore, D66 considers controlled return and prosecution in the Netherlands to be a safer choice.57_{Finally, coalition partner ChristenUnie has brought up}

the need ‘to assess on an individual basis whether it is safe and responsible to bring these people back to the Netherlands’.58_{Despite these critiques from within the government, the}

52_ibid.

53_{Aanhangsel Handelingen II 2018/19, 1403; Kamerstukken II 2018/19, 29754, 492; Aanhangsel Handelingen II}

2019/20, 2494.

54_{Kamerstukken II 2018/19, 29754, 492.} 55_{ibid 505.}

56_{Bahara and Feenstra (n 49);}_{Van der Veer and Bakker (n 39).}

57_{Van der Veer and Bakker (n 39); Arnout Brouwers, ‘Coalitie diep verdeeld over IS-strijders: ‘Het kabinet}

moet kunnen handelen. De tijd tikt’’ Volkskrant (14 October 2019) < https://www.volkskrant.nl/nieuws-achtergrond/coalitie-diep-verdeeld-over-is-strijders-het-kabinet-moet-kunnen-handelen-de-tijd-tikt~b78f6f9d/> accessed 10 June 2020.

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formal response is still that the Netherlands refuses to actively contribute to the return of Dutch foreign fighters, which the government officially confirmed on 17 April 2020.59

The Dutch government does recognize that - in principle - a right to return exists. However, it believes that the existence of such a right does not mean that the government is obliged to proactively realize the enjoyment of it.60_{The government has indicated that it will}

not send people to Syria to get the Dutch nationals out of the camps and prisons. These nationals will need to approach a Dutch diplomatic representation in the region in order to invoke consular assistance for the return.61_{The granting of consular assistance is a national}

competence, so states are free to determine the scope of their own national consular assistance. The competence to do this is not legally enshrined in the Netherlands, which means that the government has a margin of freedom to determine whether, and if so what form of assistance is given.62_{Once a foreign fighter has shown up at a diplomatic post, the}

return to the Netherlands under supervision of the Royal Netherlands Marechaussee can take place. On arrival in the Netherlands, the returnee will be questioned, after which the Public Prosecutor may decide to start the prosecution. Another possibility for the Netherlands is to request extradition.63_{However, most of the foreign fighters are detained and not able to leave}

their facilities and travel to a diplomatic post. Therefore, Mehra and Paulussen have compared the described policy with showing a detainee the key to his or her cell and telling the detainee that he or she is entitled to the key but keeping it out of reach.64

Although the Dutch government does not undertake many steps to ensure prosecution of its foreign fighters in the Netherlands, it does attach great value to fighting impunity. In relation to that, the government emphasizes the efforts it makes to ensure that ISIS members are being prosecuted for their crimes. For example, the Netherlands has been the biggest donor to the International Independent Mechanism (IIIM), which collects and analyses information and evidence of international crimes committed by all parties involved in the war in Syria.65_{Moreover, the government claims that it has led the international discussion on}

prosecution of ISIS members, among others in the UNSC.66_{As to where and how (ISIS)}

59_{Aanhangsel Handelingen II 2019/20, 2494.}

60_{Tanya Mehra and Christophe Paulussen, ‘The Repatriation of Foreign Fighters and Their Families: Options,}

Obligations, Morality and Long-Term Thinking’ (2019) International Centre for Counter-Terrorism

<https://icct.nl/publication/the-repatriation-of-foreign-fighters-and-their-families- options-obligations-morality-and-long-term-thinking/> accessed 5 June 2020.

61_{Kamerstukken II 2018/19, 29754, 492.} 62_{Aanhangsel Handelingen II 2018/19, 1403.} 63_{Kamerstukken II 2018/19, 29754, 492.} 64_{Mehra and Paulussen (n 60).}

65_{Kamerstukken II 2018/19, 29754, 492.} 66_ibid.

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foreign fighters should be prosecuted, the government has expressed a preference for prosecution by the International Criminal Court (ICC). However, as Syria and Iraq have not signed the Rome Statute and referral by the UNSC is being vetoed by Russia, the ICC does not have jurisdiction at the time of writing.67_{Therefore, the focus has shifted to other options}

of prosecution in the region. One of these is the establishment of an international tribunal, which could take on different forms. There has not been much support within the EU, nor within the UNSC, for an ad hoc tribunal for international crimes committed by ISIS. In a similar vein, André Nollkaemper, the external legal advisor to the Minister of Foreign Affairs of the Netherlands, considers the possibilities of such a tribunal very limited.68_{In close}

cooperation with various other European states, the Netherlands has started negotiations with Iraq on the prosecution of foreign fighters who are detained in the Northeast of Syria in Iraqi courts. Although Iraq is in principle willing to take on the prosecution, there are

disagreements between Iraq and the European states as to the conditions, of which the application of the death penalty in Iraq is the most difficult issue.69_{Furthermore, the}

negotiations have been delayed because of the Iraqi government stepping down in November 2019 and the corona crisis.70

A final option that is considered by the Dutch government is prosecution by the Syrian Kurds. Since ISIS has lost its territory, the Syrian Kurds have held trials for Syrian and Iraqi ISIS members, but they did not prosecute foreign fighters because of a lack of capacity and mandate.71_{The Kurds hoped to strike agreements with European and other western}

governments to either repatriate foreign fighters to their home countries or to set up an

international tribunal. However, as described, governments have not been willing to do so and no meaningful progress has been made. Therefore, in February 2020 Abdulkarim Omar, who is responsible for the foreign relations of the Kurdish-led area, announced that the Kurds would also start prosecuting foreigners. It is considered the only option left not to let these fighters go unpunished.72_{They plan to establish a tribunal and they have undertaken not to}

67_{Kamerstukken II 2019/20, 27925, 672.}

68_{André Nollkaemper, ‘Advies Internationaal Tribunaal ISIS’ (2019)}

<https://www.rijksoverheid.nl/documenten/rapporten/2019/07/24/advies-internationaal-tribunaal-isis> accessed 16 June 2020.

69_{Kamerstukken II 2019/20, 29754, 531.} 70_{Kamerstukken II 2019/20, 27925, 708.}

71_{Sacha Kester, ‘Koerden willen Syriëgangers zelf gaan berechten, minister Blok bereid hierover te praten’}

Volkskrant (7 February 2020) < https://www.volkskrant.nl/nieuws-achtergrond/koerden-willen-syriegangers-zelf-gaan-berechten-minister-blok-bereid-hierover-te-praten~bc2c39cc/> accessed 10 June 2020.

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levy the death penalty.73_{The Dutch Minister of Foreign Affairs is willing to negotiate with}

the Kurds, as it is in line with the government’s wish to prosecute foreign fighters in the region where the crimes have been committed, where most of the victims reside and where the evidence is located.74_{Up until the Kurdish announcement, the government held on to the}

idea that prosecution by the Syrian Kurds was impossible and undesirable. As the Kurds do not have a recognised state, establishing an ISIS tribunal on its territory could be explained as implicit recognition. Moreover, it would be in violation of the principle of non-intervention and Syria’s sovereignty. Moreover, it is questionable whether the trials by the Kurds would be compatible with international human rights standards.75_{There is no reason to assume that}

these objections have disappeared over the past months. It is therefore surprising that the Dutch government now seriously considers this option as a means of prosecution.

The Dutch Supreme Court on the Repatriation of Dutch Women and Children

In November 2019, the Dutch District Court of The Hague determined that the Netherlands must actively help repatriate the Dutch children of women who joined ISIS and who are currently residing in refugee camps in the north of Syria. The case was brought to the court by 23 of these women, most of whom have children.76_{According to the Court, the children}

cannot be held responsible for the acts of their parents; they are the victims of those acts. The women, however, made a deliberate choice to join ISIS and should be prosecuted for that. Therefore, the Court ruled that the government does not have to make efforts to repatriate the mothers as well, unless the Syrian Kurds (or other authorities involved in the repatriation) would impose the condition that the mothers must join their children back home. The Court emphasized that the obligation on the state is an obligation of means and not an obligation of result. This means that the government is compelled to do everything within reasonable limits, but that it cannot be compelled to take major security risks.77

However, this decision was overturned when the case was brought before the Court of Appeal in The Hague ten days later. The Court of Appeal stated that it cannot oblige the

73_{Sabbagh, ‘Syrian Kurds to put Isis fighters from dozens of countries on trial’ Guardian (6 February 2020) <}

https://www.theguardian.com/world/2020/feb/06/syrian-kurds-to-put-isis-fighters-from-dozens-of-countries-on-trial> accessed 10 June 2020.

74_{Kamerstukken II 2019/20, 27925, 708.}

75_{Kamerstukken II 2019/20, 27925, 708; Kester (n 71);}_{Ana van Es and Arnout Brouwers, ‘De draai van Blok:}

komt Syriëganger toch voor Koerdisch tribunaal?’ Volkskrant (20 February 2020) <

https://www.volkskrant.nl/nieuws-achtergrond/de-draai-van-blok-komt-syrieganger-toch-voor-koerdisch-tribunaal~bfafa594/> accessed 10 June 2020.

76_{District Court of The Hague 11 November 2019, ECLI:NL:RBDHA:2019:11909.} 77_ibid.

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government to repatriate the women and children from Syria. It argued that the decision in this case is a matter of politics and that it is therefore not up to the Court to make a

judgment.78

On 26 June 2020, the Dutch Supreme Court confirmed that the Dutch government does not have to repatriate the Dutch women and children. The women argued that their and their children’s human rights were being violated by the Dutch government, and that the Dutch government committed a wrongful act by refusing to repatriate. According to the Supreme Court, the women cannot directly invoke human rights treaties, because they are outside Dutch territory. With regards to the alleged wrongful act, the Supreme Court ruled that the Dutch government’s assessment of the different interests had been fair and that its decision not to repatriate had thus not been wrongful.79_{In chapter 4, the extraterritorial application of}

human rights treaties will be elaborated on.

The controversial case has proved to be ‘an incredibly divisive issue’ in the Netherlands.80

It is surrounded by emotional outcries of both horror and joy and it has led to many more complex legal and moral questions.81_{Although the subject of this research is not the foreign}

fighters’ children, the final ruling may have an impact on the Dutch foreign fighter policy, including decisions on prosecution. Therefore, it is an important case to mention.

78_{Court of Appeal of The Hague 22 November 2019, ECLI:NL:GHDHA:2019:3208; ‘Staat hoeft kinderen}

IS’ers toch niet terug te halen uit Syrië’ NOS Nieuws (22 November 2019) <https://nos.nl/artikel/2311541-staat-hoeft-kinderen-is-ers-toch-niet-terug-te-halen-uit-syrie.html> accessed 10 June 2020.

79_{Supreme Court of The Hague 26 June 2020, ECLI:NL:HR:2020:1148.}

80_{Goos Hofstee, ‘The Debate Around Returning Foreign Fighters in the Netherlands’ (2020) Italian Institute for}

International Political Studies < https://www.ispionline.it/en/pubblicazione/debate-around-returning-foreign-fighters-netherlands-24665> accessed 10 June 2020.

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2. International Law Applicable to Foreign Fighters Detained in

Syria

In order to answer the question whether there are obligations under international law for states to repatriate and prosecute their foreign fighters, it must be determined what the status of these fighters is under international law. In this section, it will be analysed what laws are applicable to the situation of the foreign fighters held captive in Syria. This will be done in the light of different international law regimes, from which different obligations might flow.

2.1 International Humanitarian Law (IHL)

IHL governs the conduct of armed conflict.82_{Foreign fighters are individuals joining a}

non-state armed group in an armed conflict abroad, as has been described in chapter 1. Therefore, it is important to consider their status from an IHL perspective. Because the ‘foreign fighter’ is not an existing legal concept under IHL, the general IHL rules have to be applied to make the assessment.83

IHL distinguishes between two types of armed conflict: international and non-international. The distinction is important, because the legal framework that applies to international armed conflicts (IAC) is relatively well settled compared to the rules governing non-international armed conflicts (NIAC). As a consequence, those participating in hostilities in an IAC will be better protected by IHL than those participating in a NIAC. An IAC exists whenever ‘there is a resort to armed force between states, regardless of the intensity of such force’.84_{For NIACs, there is no one general accepted definition in international law.}85_Fleck

explains such a conflict as being ‘between the authorities of a state and armed groups or among armed groups that do not operate under state authority at all’.86_{This coincides with the}

82_{Mary Ellen O’Connell, ‘Historical Development and Legal Basis’ in Fleck (ed), The Handbook of}

International Humanitarian Law (OUP 2013) para 1.

84_{Geneva Academy of International Humanitarian Law and Human Rights, ‘Non-international armed conflicts}

in Syria’ Rule of Law in Armed Conflicts (RULAC) project < http://www.rulac.org/browse/conflicts/non-international-armed-conflicts-in-syria> accessed 17 June 2020.

85_{Thilo Marauhn and Zacharie Ntoubandi, ‘Armed Conflict, Non-International’ in Wolfrum (ed), Max Planck}

Encyclopedia of International Law (OUP 2016) para 2.

86_{Dieter Fleck, ‘The Law of Non-International Armed Conflict’ in Fleck (ed), The Handbook of International}

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notion of the ICTY, which described NIACs as ‘protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’.87_{Since the foreign fighters have joined non-state armed groups, and not state forces,}

the rules of IHL to be considered are those applying to NIAC.

However, it has to be determined first whether there is actually a NIAC going on in Syria. There are two generally accepted cumulative criteria for NIAC: the hostilities must reach a minimum level of intensity and the armed group has to be sufficiently organized.88

These conditions have been accepted as reflecting customary international law.89_The

classification of a conflict is done on the basis of the factual circumstances in light of the relevant legal criteria. It is thus not dependent on the subjective will of the parties involved. For conflicts in which many state and non-state actors are involved, the classification can be complex. Furthermore, it is possible that parallel IACs and NIACs take place in what is perceived as one conflict.90

The conflict in Syria is such a situation. There are hundreds of armed groups and militias involved that include both state and non-state actors, and ‘the multitude of actors has resulted in a number of interrelated overlapping armed conflicts’.91_{For the purpose of this}

research, it is not necessary to evaluate the classification of the conflict in detail. The position of the jihadist groups that foreign fighters have joined will shortly be considered, so a

conclusion can be drawn as to the applicability of IHL. According to Gill, there is no doubt that the threshold of a NIAC was crossed since early 2012, taking into consideration the degree of organization of the main opposition groups. The various jihadist groups involved in the conflict, such as Tahrir al-Sham (formerly Jabhat al-Nusra), can be seen as separate parties because they are sufficiently organized. The same is true for the more extremist ISIS. The Kurdish militias and political parties, which have taken many ISIS (foreign) fighters captive, are a party to the NIAC too.92_{It is important to note that ‘[t]he fact that these parties}

have different objectives and have clashed with one another on occasion… does not change the fact that there is one overall conflict of a non-international character within Syria with a

87_{Prosecutor v Tadic (Decision on Defence Motion for Interlocutory Appeal on Jurisdiction) IT-94-1-AR72 (2}

October 1995) 70.

88_{Prosecutor v Haradinaj, Balaj and Brahimaj (Judgment) IT-04-84-T (3 April 2008) 49, 60.}

89_{Michael Schmitt, ‘Charting the Legal Geography of Non-International Armed Conflict’ (2013) 52 Military}

Law and the Law of War Review 93, 93-102, 99-100.

90_{Geneva Academy of International Humanitarian Law and Human Rights (n 84).}

91_{Terry Gill, ‘Classifying the Conflict in Syria’ (2016) 92 International Law Studies 353, 354-55.} 92_{ibid 373-75.}

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number of different parties’.93_{There is no need to assess each conflict separately, because the}

applicable law – IHL law for NIAC - is the same.94

Since the foreign fighters have joined non-state armed groups in a conflict which is classified as a NIAC, the IHL regime for NIAC is applicable to them. IHL consists of both treaty and customary international law. For battlefield detention, Common Article 3 of the 1949 Geneva Conventions (Common Article 3) and the Second 1977 Additional Protocol (Additional Protocol II) are the most relevant treaty sources.95_{However, Additional Protocol}

II is only applicable when hostilities take place ‘in the territory of a High Contracting Party’.96

Syria is not such a High Contracting Party as it is not a part to Additional Protocol II. Therefore, only Common Article 3 and customary international law are applicable to the foreign fighters in Syria. This has an important consequence as to their status as detainees. In NIACs, fighters do not have formal combatant status and they cannot claim status as prisoners of war upon detention.97_{What this means for their repatriation and prosecution will be further}

elaborated on in chapter 4.

Finally, it is important for later analysis on the Netherlands’ obligations to note that the Netherlands is a party to the Syrian conflict as well. The Netherlands is part of the international coalition against ISIS in Syria and Iraq.98_{Therefore, the Netherlands is also}

bound by Common Article 3 and customary international law.

2.2 International Human Rights Law (IHRL)

Another relevant international law regime for foreign fighters detained by a non-state armed group is IHRL. The main human rights sources are customary international law and human rights treaties, both at universal and regional levels. Although it is sometimes argued that IHRL is – as opposed to IHL – only applicable in peacetime, it is generally accepted that human rights continue to apply during conflict. The two law regimes do not exclude each

93_{ibid 375.} 94_ibid.

95_{Dan Stigall, ‘The Syrian Detention Conundrum: International and Comparative Legal Complexities’ (2020) 11}

Harvard National Security Journal 54, 69-70; Geneva Conventions, Common Article 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977 (AP II).

96_{AP II (n 95) art 1(1).}

97_{Cuyckens and Paulussen (n 83) 542; Fleck (n 86) para 1215.}

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other, but they can apply simultaneously in a number of situations, such as when persons are being detained.

The fact that IHL is applicable to a particular situation does not exclude the applicability of IHRL.99_{The relationship between IHL and IHRL is one of ‘mutual}

complementarity’. The regimes complete each other when one of them falls short of regulating a certain question. An example is the use of the red cross, red crescent and red crystal emblem: this is regulated by IHL in an area unregulated by IHRL. However, when both fields of law provide for the regulation of a certain matter, the applicable law ‘will have to be determined by recourse to the general rule that priority should be given to the norm that is more specific’.100_{This principle, the lex specialis principle, is thus used to resolve conflicts}

between legal norms. As IHL is specifically developed in order to regulate armed conflicts, in such situations it will often prevail over conflicting IHRL.101

IHRL is primarily binding on states. Whether non-state actors, such as organized armed groups, are also bound by it is rather controversial.102_{However, courts, tribunals and}

commentators seem to agree that non-state actors can under certain conditions be bound by human rights obligations under international law.103_{The United Nations Independent}

International Commission of Inquiry on the Syrian Arab Republic has concluded that the non-state armed groups involved in the conflict in Syria must ‘respect the fundamental human rights of persons forming customary international law’.104_{Therefore, although the foreign}

fighters detained by non-state armed groups do not enjoy the same rights that prisoners of war do, they should still be treated in accordance with human rights.

In the current situation, human rights that relate to detention conditions and trial procedures are particularly relevant for the foreign fighters. These fall under the category of civil and political rights. The Netherlands is without doubt bound by IHRL. With regards to civil and political rights, the most important treaties for the Netherlands are the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR). The question whether the Dutch foreign fighters detained in Syria may invoke human rights obligations against the Netherlands depends upon whether these human

99_{Jann Kleffner, ‘Scope of Application of International Humanitarian Law’ in Fleck (ed), The Handbook of}

International Humanitarian Law (OUP 2013) para 251.

100_{ibid para 253.} 101_ibid.

102_{ibid para 255.} 103_{Stigall (n 95) 77.}

104_{UNHRC ‘Report of the independent international commission of inquiry on the Syrian Arab Republic’ (16}

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rights treaties also apply extraterritorially.105_{The human rights situation of the foreign}

fighters as well as the extraterritoriality of human rights treaties will be further analysed in chapter 4. At this point, it is sufficient to conclude that IHRL, and in particular the branch of civil and political rights, is applicable to the situation of the foreign fighters detained on Syrian territory.

2.3 Counterterrorism Law

The refusal of the Netherlands to repatriate and prosecute its foreign fighters in Syria is largely based on the fear of terrorist attacks upon return. Therefore, a third interesting field of law to consider is counterterrorism law. The international law on counterterrorism stems from different sources, of which the main ones are counterterrorism treaties and UNSC

resolutions.106_{As the legal framework surrounding foreign fighters is mainly based on UNSC}

resolutions, this section will give an overview of the most important resolutions dealing with foreign fighters.

Before turning to these resolutions, and in order to understand the role of the UN in dealing with foreign fighters, it is necessary to take a closer look at the general

counterterrorism framework of the UN. Since the 9/11 attacks in 2001, issues related to terrorism were at the top of the agenda of the UN.107_{In response to the attacks, the UNSC}

adopted resolution 1373, by which it required states to take various measures to enhance their capacity to combat terrorism.108_{The adoption of this resolution constituted a ‘significant}

innovation in the working methodology of the Council’, as it was the first time that the UNSC asked states to adopt domestic legal instruments in order to ban terrorist financing, prevent the movement of terrorists etc.109_{Although various UN institutions and subsidiary bodies are}

involved in counterterrorism, the UNSC became the most important UN organ dealing with the topic.110_{The UN considers the foreign fighter phenomenon under the general terrorism}

105_{Kleffner (n 99) para 254.}

106_{Francesca Capone, ‘The children (and wives) of foreign ISIS fighters: Which obligations upon the States of}

nationality?’ (2019) 60 Questions of International Law 69, 83.

107_{De Guttry, Francesca Capone and Christophe Paulussen, Foreign Fighters under International Law and}

Beyond (Springer 2016) 260.

108_{Stigall (n 95) 85; UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373.} 109_{De Guttry, Capone and Paulussen (n 107) 260.}

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framework, which explains why its resolutions refer to ‘foreign terrorist fighters’ instead of ‘foreign fighters’.111

The concept of foreign terrorist fighters was introduced in 2014, when the UNSC adopted two important resolutions (resolution 2170 and resolution 2178) in reaction to the events occurring in territories of Syria and Iraq that were controlled by ISIS and Jabhat al-Nusra.112_{Resolution 2178 was particularly important with regards to the ‘foreign terrorist}

fighter’ as a legal term, because it provides a definition of foreign terrorist fighters. Both resolution 2170 and 2178 were adopted with the aim of preventing the movement of individuals from the country of origin to the areas dominated by ISIS and other jihadist groups.113_{Although resolution 2170 is relevant to mention – as it was the first resolution to}

use the term ‘foreign terrorist fighter’ – it does only refer to foreign terrorist fighters a few times. The resolution mostly focuses on the situation in the Middle East and deals with other terrorism related issues.114_{However, resolution 2178 focuses specifically on the foreign}

fighter phenomenon. It does so in a more general approach without limiting its attention to those foreign fighters present in the Middle East.115_{Although the UNSC was not created to}

legislate, it does establish legal rules in resolution 2178. The resolution includes parts in which the UNSC ‘decides’ under Chapter VII of the UN Charter, for example when it imposes upon states the obligation to criminalize certain acts related to the foreign fighter phenomenon. Obligations imposed under Chapter VII are legally binding upon states. By making use of that possibility, the UNSC establishes ‘general legal rules which clearly apply beyond the current situation in the Middle East’.116_{This legislative attitude of the UNSC has}

received criticism for not respecting the ‘careful balance struck by the UN Charter between the role and powers of the different UN organs’.117

Whereas the focus in the 2014 resolutions was on persons leaving their home state in order to join terrorist organizations abroad, later resolutions reflected developments in the Middle East.118_{After the defeat of ISIS, foreign fighters started to return and states were no}

longer concerned about their nationals leaving, but rather about their nationals returning. In response, the UNSC adopted resolution 2396, which focused on measures to address returning

111_{ibid 260.}

112_{ibid 265; Veronika Bílková, ‘Foreign Terrorist Fighters and International Law’ (2018) 6(1) Groningen}

Journal of International Law 1, 4.

113_{Bílková (n 112) 4.}

114_{UNSC Res 2170 (15 August 2014) UN Doc S/RES/2170; Bílková (n 112) 6.} 115_{Bílková (n 112) 6; UNSC Res 2178 (24 September 2014) UN Doc S/RES/2178.} 116_{Bílková (n 112) 6.}

117_{De Guttry, Capone and Paulussen (n 107) 272.} 118_{Bílková (n 112) 8.}

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foreign terrorist fighters and to counter the threat they may pose.119_{Resolution 2396}

introduces general rules and can be seen as a counterpart to resolution 2178. Both resolutions establish a legal regime concerning two different aspects of the same phenomenon.120

Over the past years, the UNSC adopted numerous resolutions addressing foreign fighters. This chapter has focused on those resolutions that have been most important regarding counterterrorism measures against foreign fighters. The aim was to illustrate the applicability of international counterterrorism law to the foreign fighter phenomenon. The exact

obligations that flow from this legal framework, and in particular whether this legal

framework imposes any obligations on states concerning the repatriation and prosecution of their foreign fighters, will be further analysed in chapter 4.

119_{UNSC Res 2396 (21 December 2017) UN Doc S/RES/2396.} 120_{Bílková (n 112) 8.}

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3. The Competence of the Netherlands to Prosecute

3.1 Jurisdiction of the Netherlands

In order to answer the research question, the first issue to be analysed is whether the

Netherlands is in fact able to prosecute its foreign fighters in national courts. In other words, it must be determined whether the Netherlands has jurisdiction to prosecute crimes committed by its nationals on the territory of another state. There are several bases of jurisdiction that states have pursuant to customary international law, of which the least controversial one is the territoriality principle. States have jurisdiction over a crime when the crime ‘originates abroad or is completed elsewhere, so long as at least one of the elements of the offence occurs in its territory’.121_{Territorial jurisdiction exists regardless of the nationality of the offender and the}

nature of the crime.122_{As the crimes committed by the Dutch foreign fighters have been}

committed on Syrian soil, this principle is not applicable. Another generally accepted jurisdiction principle is the nationality principle, which is also known as ‘active nationality’. It prescribes the right of states to exercise jurisdiction with respect to the extraterritorial conduct of its nationals.123_{The idea behind this principle is that there exists a mutual bond of}

allegiance between the sovereign (the state) and its subjects (its nationals). A national has the right not to be withdrawn from his ‘natural’ judge and the law of the national state is assumed to be the best law for the person who is being prosecuted. Moreover, the nationality principle is based on the more pragmatic argument that it ensures that nationals of states that do not extradite their own nationals can still be prosecuted in their own state. Nonetheless, the latter argument does not apply to the foreign fighters residing in Syria, for the simple reason that they are not staying in the state of their nationality.124

Although state practice does not indicate a hierarchy between the different bases of jurisdiction that exist, the nationality principle is considered one of the stronger principles.125

This can for instance be inferred from the Rome Statute, which lays down the nationality principle and the territoriality principle as bases for the ICC’s jurisdiction.126_Following

121_{Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and}

Procedure (CUP 2019) 53.

122_{Roger O’Keefe, International Criminal Law (OUP 2015) 10.} 123_{Cryer, Robinson and Vasiliev (n 121) 53-54.}

124_{Harmen van der Wilt, ‘Berechting van Syrië-gangers in Nederland: volkenrechtelijke verplichting of}

rechtspolitieke keuze?’ (2019) 6 Delikt en Delinkwent 31 para 3.

125_{ibid para 3; O’Keefe (n 122) 9.} 126_{Van der Wilt (n 124) para 3.}

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Article 12(2), the jurisdiction of the ICC is dependent on whether either the state on the territory of which the crime was committed is a state party to the ICC, or whether the state of which the person accused of the crime is a national is a state party to the ICC.127_Moreover,

the state of which the suspect is a national may challenge the jurisdiction of the ICC based on the complementarity principle.128_{These provisions illustrate that the nationality principle –}

next to the territoriality principle – is considered an important base for jurisdiction. As the example of the ICC already shows, the nationality principle is not only a customary law provision. Extraterritorial jurisdiction on the basis of nationality of the offender is also provided for in several treaties. These jurisdictional provisions can be mandatory or permissive, the latter of which would be ‘no more than a restatement of the position under customary international law’, as the exercise of jurisdiction is not mandatory under customary international law.129_{The question whether a state will exercise jurisdiction}

on the basis is a matter for that state.130

For the exercise of jurisdiction on the basis of the nationality principle by a state, the subject must obviously be a national of that state. The question as to who is a national of a state, is determined by the legislation of the state granting nationality.131_{Consequently, the}

Netherlands has jurisdiction over suspects that have Dutch nationality following Dutch law. Therefore, in this case all foreign fighters who have the Dutch nationality are subject to Dutch jurisdiction following the nationality principle.

3.2 Legal Basis for Prosecution in the Netherlands

Having established that the Netherlands can exercise jurisdiction with respect to Dutch

foreign fighters residing in Syria, the next question to be answered is whether there is actually a legal basis for their prosecution. In other words, for which crimes can they be prosecuted in Dutch courts? About twenty foreign fighters that have returned to the Netherlands have been or are currently being prosecuted.132_{In this section, the two types of crimes that the Dutch}

127_{Rome Statute of the International Criminal Court (adopted 17 July 1998) 2187 UNTS 3 (Rome Statute) art}

12(2).

128_{ibid art 19(2).} 129_{O’Keefe (n 122) 322.} 130_{ibid 9.}

131_{Cryer, Robinson and Vasiliev (n 121) 54.}

132_{‘Tweederde terugkeerders uit kalifaat niet vervolgd’ NPO Radio 1 (23 February 2017)}

<https://www.nporadio1.nl/homepage/3214-tweederde-terugkeerders-uit-kalifaat-niet-vervolgd> accessed 10 June 2020; Algemene Inlichtingen- en Veiligheidsdienst (AIVD), ‘Uitreizigers en terugkeerders’ <

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public prosecutor has charged foreign fighters with will be explored. The first type is based on Dutch criminal law – in particular terrorism law - and has almost exclusively been used. The second type is prosecution on the basis of IHL, which is less common, but might be very relevant for future cases. The relationship between the two bases for prosecution will also be considered.

Prosecution on the Basis of Dutch Criminal Law

Under Dutch criminal law, it is possible to prosecute foreign fighters for common crimes such as murder, manslaughter and arson.133_{However, almost all foreign fighters that have been}

prosecuted upon return have been charged with terrorism-related offenses.134_{These offenses}

are also part of Dutch criminal law and they are laid down in the Dutch Criminal Code.135

Up until 2004 there were no specific provisions for terrorism included in the Criminal Code. This changed after the 9/11 attacks and in response to the Council of Europe’s

Framework Decision on Combating Terrorism of June 13, 2002 (EU Framework Decision).136

The EU Framework Decision required EU members to define certain acts, as well as acts related to terrorist groups and terrorist-linked offenses, as crimes under their domestic

legislation and to ensure that such offenses would be punishable by criminal penalties.137_The

Netherlands introduced several new provisions into its Criminal Code to improve its

possibilities to prosecute terrorist acts. The most important newly introduced element was the notion of terrorist intent, which is defined in Article 83a as ‘the intention to instilling

profound fear in (part of) a country’s population, unlawfully forcing a government to do, refrain from doing or tolerate something, or seriously disrupting or destroying the

fundamental political, constitutional, economic or social structures of a country or international organisation’.138_{This notion can label certain common crimes as acts of}

terrorism. Article 83(1) lists those crimes that constitute a terrorist crime if connected with terrorist intent. The national legislation on terrorism was further extended in 2009, when the Council of Europe Convention on the Prevention of Terrorism was implemented. This

133_{Marten Zwanenburg, ‘Foreign Terrorist Fighters in Syria: Challenges of the “Sending” State’ (2016) 92}

International Law Studies 204, 208.

134_{Stef Wittendorp en Edwin Bakker, ‘Inventarisatie rechtszaken tegen jihadistische buitenlandse strijders. Een}

vergelijking tussen Nederland, België, Denemarken, Duitsland, Frankrijk, het VK en de VS’ (2017) Security and Global Affairs 28.

135_{Wetboek van Strafrecht (Dutch Criminal Code).}

136_{Wittendorp and Bakker (n 134) 27; Zwanenburg (n 133) 208.}

137_{Zwanenburg (n 133) 208; European Union (Council of the European Union) ‘Council Framework Decision}

2002/475 on Combating Terrorism’ (13 June 2002) 2002/475/JHA.

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resulted in a new provision (Article 134a) criminalizing the training for terrorism. Two years later, the financing of terrorism was also included in the Criminal Code (Article 421).139

One of the articles that the Public Prosecutor has frequently relied upon for the prosecution of foreign fighters is membership of a terrorist organisation, which is

criminalized in Article 140a of the Criminal Code.140_{Another offense for which they have}

been convicted is the preparation of acts of terrorism. As laid down in Article 134, preparing acts of terrorism is a crime in itself. Another possibility to come to a conviction is to rely on the general Article 96(2) that criminalizes preparatory acts, in combination with manslaughter or murder with a terrorist intent (Articles 288a and 289 respectively).141

Prosecution on the Basis of IHL

The second possibility for the prosecution of foreign fighters who have returned to the Netherlands is to charge them with crimes on the basis of IHL. In chapter 1, it has been established that certain provisions of IHL – Common Article 3 and customary international law - apply to the Dutch foreign fighters. The Netherlands has signed the Geneva

Conventions and is bound by customary international law. It has criminalized war crimes in the International Crimes Act.142_{Article 6 of this Act criminalizes violations of Common}

Article 3, which provides for a number of humanitarian laws in the context of NIAC. Therefore, foreign fighters can be prosecuted for such violations in Dutch courts.

In July 2019, a returned foreign fighter was convicted for a war crime for the first time in a Dutch court. He joined ISIS in 2014 and he had been posing next to a man, who was executed and crucified by ISIS. The picture was posted on Facebook and was widely disseminated.143_{According to the Court, this constituted a violation of Common Article}

3(1)(c), which prohibits ‘outrages upon personal dignity, in particular humiliating and degrading treatment’.144_{The suspect was sentenced following Article 6 of the International}

Crimes Act.145_{No other foreign fighters have been prosecuted on the basis of IHL in the}

Netherlands.

139_{Zwanenburg (n 133) 208-09.}

140_{Wittendorp and Bakker (n 134) 28; Dutch Criminal Code (n 135) art 140a.}

141_{Dutch Criminal Code (n 135) arts 288a, 289a, 96(2); Wittendorp and Bakker (n 134) 28.} 142_{Wet internationale misdrijven (International Crimes Act) art 6.}

143_{District Court of The Hague 23 July 2019, ECLI:NL:RBDHA:2019:7430.} 144_{Geneva Conventions, Common Article 3(1)(c).}