The functioning of counterterrorism policy
in the Netherlands within the context of
defining terrorism in (inter)national law
A description of the legal frameworks on counterterrorism at
the international and national level
Name:
Sean den Hoed
Student number:
11003146
Professor:
mw. dr. E.A.V. (Vivienne) Matthies-Boon
Second evaluator:
dr. S. (Said) Rezaeiejan
Date:
19/08/2019
Word count:
10 689
Contents
1. Introduction 3 – 7
2. Methodology and Methods 8 - 10
3. Theoretical Frameworks 11 - 23 3.1.1 Philosophical concept of Terrorism 11 - 14 3.1.2 Characteristics of Terrorism 14 - 17 3.2.1 The importance of definition in governance and law 17 - 18 3.2.2 The continuation of politics 18 - 21 3.2.3 Critical Terrorism Studies 21 - 22 3.3 The political debate combined 22 - 23
4. Analysis 24 - 36
4.1 The international legal framework 25 - 31 4.2 The national legal framework 31 - 36
5. Conclusion 37 - 40
Bibliography 41 - 47
Appendix 1 48 - 56
1. Introduction
With the attacks in Paris 2015, Brussels 2016 and Manchester 2017, the Netherlands, Europe and the international community were confronted with repeating terrorist attacks on European territory (Global Terrorism index 2018: 39-40). These high-profile attacks resulted in
hundreds of deaths and even more wounded people, creating a realization that terrorism is an increasing threat to the international community, terrorism is getting closer to the
Netherlands, and the creation of a lasting feeling of insecurity (ibid.). These attacks ensured that the fight against terrorism further developed and counterterrorism measures were more tightened (idem: 39).
This so-called "fight/war against terrorism" has its origins since just after the turn of the millennium, with the attacks on September 11, 2001, in the United States (Dool 2011). The terrorist attacks on September 11 had a shock effect, were intentional and the world was confronted with the phenomenon of terrorism on an unprecedented scale (ibid.). Almost everyone became familiar with terrorism and the fight against terrorism, in which it occupied our attention to a significant extent at the beginning of the 21st century (ibid.). The subject of terrorism was consistently placed high on the international agenda, and it became clear that there was a need to do more than just declare terrorism in violation to the law (Townshend 2014: 8; Bakker et al. 2018: 17; United Nations 2018). This sparked the discussion about how to prevent and / or settle such terrorist attacks in the future (United Nations 2018).
In the subsequent decades to now, many proposals have been made and implemented to fight terrorism (European Union 2019; United Nations 2019). However, it appeared that the fight against terrorism is not that simple. This is because both political and academic aspects of terrorism are always tied to the issue of a definition of terrorism, resulting in the existing of a variety of definitions used for different reasons (Townshend 2014: 9). Caruso and Locatelli (2014: 103) state:
“Defining terrorism is not a straightforward matter. There is no single internationally accepted definition of what constitutes terrorism, and the terrorism literature abounds with competing definitions and typologies.”
Besides, Bruce Hoffman (1998), director of the Centre of the Study of Terrorism at the University of St. Andrews, points to the existence of no fewer than 109 different definitions, in which the cause of the definition problem must be sought in the negative connotations traditionally associated with terrorism and the resulting eagerness of various political actors to use this concept. Additionally, the concept of terrorism has not yet been declared in the Rome Statue of the International Criminal Court or other binding international criminal law
instruments, as states are unable to compete against an all-encompassing definition (Moeckli et al. 2014: 588). Together this emphasizes that it is almost a banality to start with legal treatments on terrorism with acknowledgment that the international system has found itself incapable of producing a consensus definition about the concept of terrorism in international criminal law.
Despite this vacuum and the lack of a comprehensive definition within the
international system and international law, the Dutch government is still working in various ways to fight terrorism (Rijksoverheid 2019). This counterterrorism policy of the Dutch government tries to contribute to both the fight against terrorism and the prevention of terrorism, in which manifestations of terrorism are punished and information is exchanged within the international community (ibid.). The difficulty that rises once again is that of definition, in which individuals or groups would almost never voluntarily associate themselves with the label of a ‘terrorist’. So who is a terrorist and what is a terrorist act remains ambiguous, since there exists no consensus definition on the concept of terrorism. Schmid en Jongman (2017: 10) emphasize on the problem in critical terrorism studies with
the fact that: “there are probably few areas in social science literature in which so much is
written on the basis of so little research”. Additionally, terrorism studies are characterized as
stagnant, poorly conceptualized, lacking in rigor, and devoid of adequate theory, data, and methods (Stampnitzky 2011: 3). Because of the vacuum within different areas including the field of terrorism studies and also (inter)national law, due to the lack of a general definition of terrorism, how can someone judge and fight terrorism?
The scientific literature on critical terrorism studies suggests that terrorism scholars have abandoned the search for an agreed definition and are using the concept without ever defining it, in which there exists no consensus definition in the fight against terrorism (Grunning 2007: 4). Conducting a follow-up study on the definition of terrorism and the influence on the fight against terrorism is thereby emphasized. To date, this has not yet been implemented and creates a gap in scientific knowledge about the relationship between the vacuum of a definition of terrorism and the fight against terrorism in the Netherlands. By examining the relationship on the basis of scientific articles, reports and interviews with experts, certain conclusions can be made that may have influenced the relationship and that build upon the critical terrorism studies. That is why it was decided to investigate this connection in this thesis in order to contribute to the scientific knowledge. Additionally, the results of the conducted research about the effect of a vacuum of a definition of terrorism on Dutch counterterrorism policy are important for the social debate. Based on the results, possible policy improvements can be made that contribute to the safety of Dutch society. This thesis will thus make a connection between the scientific literature on the importance of definition in the implementation of policy and the rule of law, with which the concept of terrorism will be emphasized specifically on the basis of the critical terrorism studies. The problem that is highlighted is thereby both political and judicial in nature, whereby the lack of definition of terrorism can have a negative impact on the fight against terrorism in the
Netherlands. Additionally, the aim of the investigation is to find out whether and possibly how the lack of a consensus definition of terrorism plays a role in the fight against terrorism, so that counterterrorism policy can be further developed. That is why it is important to first look at terrorism as a concept. This thesis highlights this lack of clear definition and its influence on the fight against terrorism in the Netherlands.
Arising the question that I want to research: To what extent is the vacuum of a definition of terrorism in (inter)national law influencing the functioning of the Dutch counterterrorism policy?
To investigate this connection in more detail, a qualitative study will be conducted, using both desk research and field research. For the desk research, various reports of the Netherlands, the European Union and the United Nations on the definition of terrorism and the fight against terrorism are collected. Additionally, two experts in the field of
counterterrorism are interviewed at the national and international level to create a better understanding of how counterterrorism policy is implemented. The results will then be compared and I will further interpret, contextualize and analyse these for a detailed description.
Throughout the thesis, an overview of the current Dutch counterterrorism policy is connected to both the concept of terrorism in national and international law. In chapter 2 the methods and methodology are presented, including some sort or roadmap for the thesis, which is applied, because this differs, somewhat from usual analysis, and is important for the course of the thesis. Chapter 3 discusses an extensive theoretical framework, in which the
aforementioned problem of definition for policy implementation (governance) and law will be emphasized, arguing that it is both a judicial and a political problem and is characterized by some overlap. The concept of terrorism will be described, as the reality teaches that terrorism scholars simply have abandoned a search for an agreed definition and tend to use the concept
without ever defining it (Grunning 2007: 4). It is important to look where the concept of terrorism comes from and how it has developed. A description of the philosophical aspects of terrorism will be given and also certain characteristics of terrorism will be described. This description shows how the concept is interpreted in different ways and the disagreement on the character traits and definition will be aligned, whereby the reason why it is so important in international and national contemporary politics will be emphasized. Additionally, the
continuation of politics will be described, in which the use of concepts are central and implementation of policy is no longer approached as a politically neutral matter. After which the connection is made with the Critical Terrorism Studies by Jeroen Gunning, because of the specific use of the concept of terrorism by politicians for, for example, political gain. This literature together will clarify the political debate for the thesis. Chapter 4 illustrates the analysis, in which an extensive explanation has been given of international legislative
instruments on terrorism and in the field of counterterrorism. Besides, a clear overview of the legal actions of the Dutch government will be presented. From there, the functioning of Dutch counterterrorism policy in the context of the vacuum of a definition of terrorism in
(inter)national law, by interviewing a number of leading experts in the field of terrorism and counterterrorism, will be further illustrated.
2. Methodology and Methods
The methodology and methods chapter is described before the theoretical framework chapter, because some sort of analysis already takes place in the theoretical framework chapter, in which this differs somewhat from usual and it is important to outline the methodology and methods that are used in this chapter.
With this thesis a qualitative study was conducted to answer the question to what extent is the vacuum of a definition of terrorism in (inter)national law influencing the functioning of the Dutch counterterrorism policy? For this purpose, literature research and interviews were conducted with two experts in the field of counterterrorism policy at the national and international level.
Both desk research and field research is conducted, in which a variety of scientific sources have been consulted. For example, use has been made of reports at the national and international level, scientific articles have been consulted, certain resolutions have been highlighted, transcripts of international meetings have been used, and the law including legal judgments has been dealt with. Concerning the explanation of the political debate on this problem, the theory of Critical Terrorism Studies by Jeroen Gunning, in addition to the theory of the importance of definition in policy and law, was consulted. This attempts to sketch the nature of the problem, which is characterized by the overlap of a judicial problem and a political problem. The interviews were prepared on the basis of this literature review. These were semi-structured, so that if necessary they could continue to request more information. Notes and sound recordings were made during the interviews, with the aim of transcribing.
Literature has been used for research since the emergence of definitions of terrorism in scientific literature. However, with regard to the sketching of the problem, the focus is
particularly on the period after the attacks of September 11, 2001, when counterterrorism policy accelerated and definition of terrorism in translation into policy was considered a
problem. Moreover, the research is mainly focused on policy in the Netherlands and what influences this policy. Besides, because the Netherlands plays a significant role in the international community, the policy of the United Nations and the European Union is
therefore also included, but the national policies of other countries are not taken into account. Two experts were selected for the interviews. Floris Vermeulen with know-how of Dutch counterterrorism policy and Manuel Navarette with knowledge of counterterrorism policy at the international level. This is to gain a better understanding of the policy against the fight against terrorism at the national and international level. Additionally, semi-structured interviews were used to get structured answers to the sub-questions and also to have the space to delve deeper into answers and to gather more information. The interviews were held at the work locations of both respondents, at the University of Amsterdam and Europol. The respondents were interviewed separately and were also recorded in agreement with the respondents in order to better analyze their answers. The interviews have been described and transcribed using the notes and the audio recordings. After this, the transcripts were added openly to the thesis in the appendixes.
The outlined problem will then be compared with the answers from the interviews, in combination with reports and sources regarding the functioning of the counterterrorism policy at the national and international level. From which a jump will be made to answering the research question.
For the sake of validity, the questions for the interviews were drawn up on the basis of the literature. This concerns literature that has been selected for relevance to the research question. Additionally, the most recent literature was consulted for the study. The reliability of the interviews is guaranteed because the respondents were able to speak freely, because these interviews took place in a closed room. Both interviews were also recorded and
However, it is difficult to formulate decent and open questions that may result in ambiguous answers. This thesis generally has a hermeneutics approach, in which subjective
interpretations in the research of meanings of texts, reports, resolutions, legal regulations, social phenomena and thinking are described, which must be included for the validity of the research.
3. Theoretical Framework
In this debate it is important to outline the political debate within the scientific literature of critical terrorism studies. Hereby, this thesis presents a tangle of theories, conceptualizations and further documents about the importance of a clear concept of terrorism for the
implementation of policy and in the ruling of law, making it both a political and judicial problem in nature. This theoretical framework will then serve as a lens that connects the outlined political debate on the problem with the analysis in the light of the aforementioned research question. Firstly, the concept of terrorism will be described, in which a philosophical approach and certain characteristics will be presented. A somewhat description of the concept of terrorism is needed, because of the fact that terrorism studies have simply abandoned the search for a definition, and instead, tend to use the term without ever defining it, which is no less than manifestly absurd to pretend to study terrorism without at least some kind of definition (Gunning 2007: 4; Gibbs 1989: 329). In this description, the problem of a lack of consensus definition of terrorism will be outlined together with the fact that the definition of terrorism is used in various ways. Subsequently, the political debate within the critical terrorism studies on the importance of defining terrorism is presented.
3.1.1 Philosophical concept of Terrorism
Definitions of the concept terrorism are not only controversial for conceptual issues and problems, but also for other reasons (Gibbs 1989: 329). Labeling actions contributes to condemnation of the actors, in which a definition can reflect on the ideological or political prejudices (ibid.). Given such consideration, all of which discourage attempts to define terrorism, it is not surprising that there exists a lack of a comprehensive definition and will it not be found in the foreseeable future (Laquer 1977: 5). Laquer (1987: 11) also states:
“No definition of terrorism can possibly cover all the varieties of terrorism that have
appeared throughout history.”
There have been many terrorisms, greatly differing in time and space, in motivation, and in manifestations and aims (Laquer 1987: 11). The history of terrorism dates back centuries, but the very fact that there is a history, has frequently been ignored (Laquer 2017: vii). This because there were periods with no terrorism at all, whereby terrorism did not appear throughout the history with equal intensity (ibid.). As a result, when it reappeared after a period of relative calm there was the tendency to regard it as a new phenomenon, without the precedent (ibid.). For example, studies have shown that terrorism campaigns have been running for more than 150 years and the concept ‘terrorism’ can itself be even traced back to the French Revolution, where the concept had a positive connotation and was used with regard to the systematic terrorism of the state (Lowe 2018: 2-4). However, in the course of the nineteenth and twentieth century, the concept terrorism was increasingly characterized by a criminal connotation, and these centuries were frequently confronted with activities related to terrorism (ibid.). The concept “terrorism’ makes a development through these centuries to the present, in which it entails much more than only the activities of Al Qaida and other religious groups from today, which is only a small part of the entire history of terrorism activities (ibid.). The fact that this kind of terrorism activity is receiving main attention and is
considered as a tipping point in terrorism studies, is due the attacks on September 11 in 2001, which was global in the coverage of modern media technologies and global in the nature of the attack since Al Qaida does not represent a single nation, but claims to represent the worldwide faith of Islam (idem: 2-3).
This caused that terrorism is often believed and not entirely without cause, as one more serious contemporary challenges facing the international community at the moment. The
United Nations Security Council considers it as one of the greatest threats to international peace and security, in which they confirm that terrorism is an unjustifiable crime regardless of their motivation (UNSC 2001). Terrorism is challenging the international community,
endanger innocent lives, dignity and security of human beings everywhere, undermine global stability and prosperity, and threaten the social and economic development of all states (ibid.). At the same time, the United Nations General Assembly underlines its concern about the impact of transnational crime on the political, social and economic stability and development of states (UNSC 2002). Furthermore, the 21st century is characterized by a prevalence of
failing states and an equally large increase in acts of domestic and international terrorism, and the challenge today is for the international community to develop a common approach for the treatment of terrorism as an international crime (Orlova and Moore 2004: 269). The need for elaboration on a definition of terrorism in international law is therefore advocated by
academics and the importance of this definition is continuously demonstrated (ibid.).
Nevertheless, until this day this has not been proved possible. The most recent efforts are mainly to negotiate on a Draft Comprehensive Convention of Terrorism, which creates a legal regime and is supposed to have significant political and legal consequences (Hmoud 2006: 1031). The negotiation process was however complicated and progress has stalled since October 2001 as a result of controversies over the exact scope of the definition of terrorism (Orlova and Moore 2014: 273). The international community did thus not yet agree upon a comprehensive definition and on the application of such a treaty (Hmoud 2006: 1031). Looking at other areas, this is not surprising, because there exists a wide range of different legal definitions, different regional organizations do not deal with the problem in the same terms, and there is no lack of divergent documents about terrorism in the international jurisdiction either (Orlova and Moore 2004: 283).
Be that as it may be, this makes sense in the light of – the opinion on ‘criminal’ behavior depends to a large extent on the position that a particular state has within the international relations – especially with regard to terrorism, in which characteristics of international power conflicts and political issues are accompanying the concept. Multiplicity is inevitable in the international system and fragmentation between countries about what is legal and illegal is therefore unavoidable in the treatment of behavior (Braber 2013: 10). Yet it remains of the utmost importance to reach agreement on a consensus definition, especially with regard to terrorism, since terrorism is predominantly an international phenomenon (Orlova and Moore 2004: 269)
Due to the mentioned difficulty in defining terrorism, it is more convenient to provide a comprehensive conceptual description of the various variables that can be considered together as terrorist acts. Philosophical and legal elaboration will predominantly overlap, but differ in the sense that one is more technical than the other. In describing the scope of the concept it is inevitable to dispute and break the obstacles previously identified in defining a crime of terrorism about the precise linguistic significance, used in the disputed definition itself, being used becomes almost inevitable. For the sake of clarity, a description of the formal characteristics will be given in order to provide a starting point for the concept of terrorism, in which terrorism is understood as a type of violence whereby the experience of terror or fear is the proximate aim of that violence.
3.1.2 Characteristics of Terrorism
But what is terrorism, to which we give so much influence today? Before the threat can be made regarding this 'it' and whom 'it' threatens, we must determine to some extent what 'terrorism' is (Combs 2017: 4-5). It is precisely this problem that has led to a great deal of disagreement between political, legal and military leaders (ibid.). Nevertheless, definitions of
terrorism continue to undergo changes, and the characteristics suggested in the following section are highlighting certain important facets of the issue, answering some questions while perhaps raising multitude of others (idem: 6). While it has not been possible (yet) to create a universally acceptable definition, it is both possible and necessary to specify certain
characteristics, from which a frame of reference is provided and it should be possible to analyze this phenomenon to some extent. This in turn creates an operational definition of the concept, in which acts possessing these characteristics could be possibly identified as
terrorism with some consistency, making analysis more meaningful (idem: 7). Certain types of action could be identified as terrorism, regardless of who commits them and however the cause (ibid.).
The most visible element of terrorism is the repeated violent action and violent nature of the phenomenon (Weinberg et al. 2004: 780). Main characteristics of this violence remains disputed as previously mentioned, but can at all times be labeled as illegal, from which the concept accumulated so many negative connotations (idem: 778). However, the phenomenon not only has a violent nature, but it also has examples in which the critical characteristic of this violence has the purpose of influencing or forcing something or someone to do something (idem: 781). There are also views – “The direct targets or violence are not the main targets,
the immediate human victims of violence are generally chosen randomly” – with the emphasis
on the randomness of the violence (idem: 780). In this interaction of viewpoints, it is important to make a confession about whether the intention is attached to the act itself or whether the goal is connected to the actor and thus becomes subjective (Braber 2013: 11-12).
However, some try to separate this accompanying of terrorism and its violent nature, in which some idiosyncratic definitions are claiming that the elements of terrorism that mainstream theories deem can be left out (Wellman 1979: 250-251). It is claimed that violence is not essential for terrorism and that terrorism can actually be considered as a core
political tactic – "Terrorism has been widely used for purposes of political effect" – involving the purpose of creating fear to people for political advantage (Wellman 1979: 250-251; Weinberg et al. 2004: 778).
Taking into account the perpetrators of this violence, terrorism could be caused by the state, as discussed earlier during the French Revolution and later during the Russian
Revolution (Lowe 2018: 2-4). However, as noted in de last decades, terrorism is mainly associated with insurgent organizations and different views remain as to whether states can actually commit terrorist acts and whether the pursuit of self-determination prevents that an act can be seen as a form of terrorism (Primoratz 2018). In general, therefore, terrorism is today limited to non-state actors, which can be seen as a major problem with regard to the establishment of a comprehensive definition of terrorism in international law (Weigend 2006: 912). In many attempts to secure binding agreements on terrorism, the Western countries have never taken into account the fact that state actors have been guilty of terrorism aspects,
whereas the Islamic countries have suggested that state actors in their performing of their official functions could qualify for the stamp of "terrorist" (Fletcher 2006: 905). The fundamental problem is therefore the disagreement about whether it matters more what someone does and especially who does it.
Subsequently, there exists an ongoing debate about justification of terrorism and the focus lays on the issue of rights (Held 2008: 21). Assuming non-state actors as the
perpetrators of terrorism, with regard to the morality status of terrorism, the positions of justification vary when their effects are more or less good (Primoratz 2018). The problem can be summarized in the question whether a good cause justifies the use of reprehensible means, what the Islamic states seem to argue with regard to terrorism and is therefore at odds with the dominant Western view (Weigend 2006: 923). "A limited use of terrorism is the only way of
the other hand, emphasis is placed on the protection of fundamental human rights, with acts of terrorism seen as a threat to human rights with negative consequences (ibid.). For example, the right to life, the right to physical integrity, the right to health, the right to property, in the event of hostage-taking – the right to freedom are seen as possible negative consequences of terrorism (ibid.). Terrorism is therefore also described as the destruction of human rights (ibid.).
These extensive descriptions of both the philosophical aspects and the characteristics of terrorism present the problems with the definition(s) of terrorism. The lack of a consensus definition is broadly described, as well as the problem of the use of a variety of definitions of terrorism. Hereby, the difficulty lies in the fact that terrorism is difficult to define, with definitions often disputed, because it is pejorative, emotional, normative, hegemonic, relative, excessive and occupies a unique position as a political act and crime and as a tactic, act, actor, objective and effect (Winter 2017: 2). It has been shown that terrorism is developed and changed, taking many forms and definitions can be found to be too small, specific, general, comprehensive and contextualized (ibid.). Additionally, this description shows a beginning about the nature of the problem, in which it is characterized as a political and judicial problem. This will be further elucidated in the discussion of the political debate about the importance of definition and the concept of terrorism in critical terrorism studies.
3.2.1 The importance of definition in governance and law
Concepts, also known as professional knowledge, must be substantively fixed and form part of the conceptual structure of the domain to be described, in which concepts must be clearly defined in terms of content, be specific to a discipline and form a substantive relationship between that discipline (Rauws et al. 2011: 411-412). Moreover, essentially contested concepts are characterized by; no definitive formulations, solutions are not true or false,
solutions in general could not be tested, no opportunity to learn by trial-and-error, are mostly used as a symptom for another problem, and the existence of it can be explained in numerous ways (Gallie 1955: 169-195). The concept terrorism is such an essentially contested concept, one whose meaning lends itself to endless dispute but no solution, in which 30 years of contesting the meaning of terrorism has produced not much result (Weinberg et al. 2004: 778).
Terrorism experts and security professionals in recent decades have once again emphasized on the problem of a lack of primary data to gain insight into issues surrounding the use of terrorism (Braddock 2019: 1). They underline how this lack of meaning about the concept terrorism could influence certain policy decisions (ibid.). The importance of a good understanding of the situated concepts, in particular terrorism, is of such importance for the possible implementation in governance and the possibility of administration of justice (ibid; Pries 2017: 1). In this, the precise meaning of the concept of governance refers to the structures and processes that are created to guarantee accountability, transparency,
responsiveness, the rule of law, stability, equity and inclusiveness, empowerment, and broad-based participation (International Bureau of Education 2019). Policy can only occur in a community, because policy is about achieving "something" of the community in the community (Stone 2012: 20). This "something", or policy, may well be all the statements made by the government, but also the judgments in the court of justice (Birkland 2015: 9). In short, the importance of clear concepts can play a significant influencing role in the possible policy (implementation) and the resulting judgments in law (Pries 2017: 1-2).
3.2.2 The continuation of politics
There is sufficient reason to believe that social problems can be solved through a form of government involvement (Grin and Van de Graaf 1996: 291). This also applies to the
phenomenon of terrorism. However, the challenge teaches to formulate a model for policy implementation that is both useful to meet this need and is not vulnerable to a series of criticisms against the ‘top-down’ approach to government regulation (ibid.).
Additionally, it is important to think about how policy is originated and the defining book in the field of policy implementation was that of Pressman and Wildavsky (1984), in which they indicated on a change in thinking about policy implementation. Policy
implementation could thus no longer be seen as a purely technical, "politically neutral" matter – "Implementation is the continuation of politics with other means" (idem: 175). Pressman and Wildavsky started at the dictionary definition of ‘implementation’ and is formulated as the ‘carrying out of a decision’, in which ‘it’ focused inquiry on the extent to which, and the reasons for which, the formal objectives of a policy decision were attained – which is called the ‘top-down’ approach (Sabatier 2015: 257-258). Attention is focused on the extent to which official policymakers can use a variety of control mechanisms and institutional arrangements to guide social change (idem: 258). Hereby, Pressman and Wildavsky went beyond the bounds of traditional public administration, in which they pointed to the
importance of inter-organizational relations and policy networks as a distinguishing feature of implementation research (ibid.). Furthermore, Pressman and Wildavsky shifted their focus from the behavior of decision of implementing agencies to policy outcomes, whereby they identified a program’s causal theory as a critical explanatory variable (ibid.). “Implementation
is an evolutionary process in which programs are constantly reshaped and redefined” –
central policy makers defined policy inputs with which the conception began, and also embraced the idea that these inputs will be changed in the course of implementation – which illustrates an incremental learning process that is especially central to this approach (Pülzl and Treib 2017: 96). At the same time, political objections were raised, ranging from suspicious
or government intervention and social planning, to proponents or more participatory visions of democracy (Sabatier 2015: 258).
This points out that policy, and the associated variables in the development of policy, can be manipulated by those with certain authority and access to the right political arena (Pressman and Wildavsky 1984: 175). This ensures that policy implementation can adopt a corruptible process, allowing certain concepts to be used for political purposes of those with certain authority. To illustrate this, Grin and Van de Graaf (1996) used the case of ‘the development of fleet ballistic missiles in the United States’. These ‘fleet ballistic missiles’ were developed to add a naval component to air-operated missiles (idem: 293). The
Departments of Defense charged a new organization, Special Projects Office, with setting up a working fleet ballistic missile (ibid.). The question that ultimately came up was; "Why did it
take so long before Special Projects Office started implementing Departments of Defense's orders?" – and a simple answer was that Special Projects Office stuck to its choice for a
so-called "countercity strategy" (idem: 296). However, this raised more relevant normative issues (idem: 296). For example, many of the discussions between Department of Defense, Special Projects Office and third parties were conducted in fairly technical terms (idem: 297). Yet, both the object and the outcome were directly related to one of the most fundamental debates in American security policy: countercity versus counterforce strategy (ibid.). Important in this was that although Congress often has hearings on these technical choices, the discourse on these implementation choices is hardly related to the discourse on nuclear strategy (ibid.). Additionally, it was relatively easy to mislead Congress, where Congress seemed unable and willing to critically assess the technological choices. Hereby the
development of policy and current policy itself was somewhat manipulated by those with the certain authority and access to the political arena, whereby Grin and Van de Graaf illustrated this case to the phrase: "Implementation is the continuation of politics with different means"
(Ibid.). An extension of this is the theory of Critical Terrorism Studies, which emphasizes the political activity of actors who use the concept terrorism for possible policy.
3.2.3 Critical Terrorism Studies
‘Terrorism’ is a growth industry, in which it has become one of the most powerful signifiers in contemporary society, both on the national level and international playing field (Breen Smyth et al. 2008: 1). As a concept, terrorism generates a large amount of social and political activity, induces powerful emotions and, through numerous social practices, forms into a legal and political subject, a cultural taboo, a myth and an object of fear, hate, surprise, admiration, entertainment and identity (ibid.). Besides, there exists a growing dissatisfaction about the quality of the voluminous research outputs – “a political environment characterized by
decreasing public and academic confidence in official approaches to counterterrorism, we argue that it is intellectually and politically timely to consider how a new, more ethical approach might offer an alternative paradigm for considering political terror” (Gunning
2007: 2-3). Together with the development of an increasing number of openly ‘critical’ terrorism studies and scientists led to the creation of an explicit ‘Critical Terrorism Studies’ (idem: 3). The major puzzle covers the gaping gap between the signifier of "terrorism" and the actual acts indicated by the concept, in which almost all of this activity refers to the answer to the acts of political violence and not violence self, whereby there is no consensus about an all-encompassing definition of terrorism (Breen Smyth et al. 2008: 1). In fact, terrorism scholars have abandoned the search for an agreed definition and are using the concept without ever defining (Gunning 2007: 4). The contemporary 'Critical Terrorism Studies' embrace a certain kind of political, legal, cultural and academic context (ibid.). However, within this context, the concept terrorism and the additional threat thereof is often used by politicians for political gain, and terrorism becomes a negative ideograph of Western
identity, making self-reflection and penetrating research more difficult (idem: 2). Critical Terrorism Studies as a new research orientation is therefore willing to challenge dominant knowledge and understanding of terrorism, is sensitive to the politics of labeling in the field of terrorism, is transparent about its own values and political views, adheres to the ethics of responsible research and is committed to a broadly defined concept of emancipation (ibid.). Additionally, the concept ‘terrorism’ is so dominant within political structures and culture at the moment that it deserves a close attention, in which ‘Critical Terrorism Studies’ studies the political, academic and cultural usage of the concept (Gunning 2007: 13). This demonstrates the danger of labeling once again. Not only in labeling terrorist acts to actually punish and do justice, but also the use of the concept "terrorism" in a political, cultural and academic
context. When using the concept terrorism within a certain context, there is therefore the danger of the aforementioned, ‘policy implementation could no longer be seen as a purely technical, "politically neutral" matter’, in which the concept can take on a political charge and can be used for political gain and / or possible implementation in certain policies. Critical Terrorism Studies therefore tries to re-open the debate. Both with regard to the use of the concept terrorism for political purposes, to critically approach the existing debate on terrorism studies and to attract new researchers who could make a positive critical contribution to the existing debate.
3.4 The political debate combined
The paragraphs and treatment of various studies outlined above have shown that the concept of terrorism is difficult to define, which involves various problems. It has been demonstrated that there is a lack of a consensus definition of terrorism, and as a result the existing of a variety of definitions used for, for example, political purposes. Here, the critical terrorism studies are conceived as a critical, reflexive and progressive approach that views terrorism as
a social construction and looks at the relationship between knowledge production and power (Winter 2017: 4). Critical terrorism studies tries to show that the concept of terrorism is difficult to define, and definitions are disputed (idem: 2). Additionally, critical terrorism studies states that the concept of terrorism is often used without ever defining it, for political purposes (Gunning 2007: 4). This together with the theory of 'the importance of definition in governance and law' and 'the continuation of politics', it becomes clear that the usage of the concept of terrorism, in the light of the vacuum of a consensus definition and besides the existing of divergent other definitions of terrorism, itself becomes part of the so-called
"Implementation is the continuation of politics with different means". The political debate also
states that definition is important for the implementation of policy and, in addition, for the rule of law. Taking into account the concept of terrorism, and the difficulty with its definition, this results in consequences for the possible counterterrorism policy and ruling of law. The illustrated problem can therefore be characterized as a political and judicial problem in the context of a vacuum of a consensus definition and the existing of divergent definitions.
4. Analysis
Since 9/11 terrorism has become a global phenomenon that transcends national and even hemispheric boundaries (Crelinsten 2009: 2). Where previously the world was mainly confronted with political domestic terrorism from, for example, the separatist group Euskadi Ta Askatasuna (ETA) or the Red Army Faction (RAF), which pursued a political aim for independence or making a change via violent means, in which these tried to create a parallel organization against the states, the world now became acquainted with religious terrorism, in which the scale of threat and the scale of victims were no longer connected to what we had before (Navarrete 2019; Law 2009: 332-333). The world was not accepting for this to happen again, because these terrorism attacks were so volatile, so unpredictable they can kill 1000 people easily (ibid.). It was just not enough to say: "you kill 1000 people, you are going to serve 1000 years into prison" (ibid.). In fact, for the first time in history, NATO invoked Article Five of its charter stating that an attack on one member is considered an attack on all, and Europeans flew over three hundred sorties in radar-laden surveillance planes in American airspace from October 2001 to May 2002 (Law 2009: 332). The world moved into the
prevention side of counterterrorism (ibid.). However, there is indeed a difference between countries as to how terrorism is viewed and how it should be approached and combated. From here, there will be a description given of the international legal framework and the national (Dutch) legal framework regarding terrorism. A description of not only the national
framework, but also the international framework, herein is important because it is clear that terrorism is a global phenomenon, and the Netherlands is also associated with relevant international treaties. Additionally, there will be elaborated on whether there is a discrepancy between the two and what the consequences are for the ultimate Dutch counterterrorism policy.
4.1 The international legal framework
For a description of the international framework we will look at the framework on terrorism between the United Nations and the European Union, because these share a deep conviction in and commitment to promoting multilateralism in addressing the global challenges the international community faces today (European Union 2019). Prior to 9/11, there was no anti-terrorism legislation at the EU level (Lowe 2018: 41). What did exist was only at Member State level with some having no specific anti-terror legislation in place (ibid.). The 9/11 attacks were the catalyst for the EU introducing anti-terror legislation that came in the form of a Framework Decision (ibid.). However, it must be made clear that terrorism is not a
phenomenon that is limited to the religious terror of the twenty-first century. It is therefore a misconception to think that the United Nations, in turn, only started developing anti-terrorism instruments after the 9/11 attacks.
Going back to 1934, the international community is trying to create a treaty framework and instruments for the prevention and punishment of terrorism with a report on "Proceedings
of the International Conference on the Repression of Terrorism" (League of Nations 1938).
Nevertheless, it took until 1963 before a certain international anti-terrorism treaty was
adopted on behalf of the United Nations (United Nations 2019). In the following decades, the international community has produced nineteen more international legal instruments to
prevent terrorist acts, in which each of these treaties raised and criminalized a specific form of terrorism (United Nations 2019). These instruments on terrorist acts are regarding civil
aviation, protection of international staff, taking of hostages, nuclear material, maritime navigation, explosive materials, terrorist bombings, financing of terrorism and nuclear
terrorism (ibid.). In spite of this boom in the development of treaty instruments concerning the criminalization of terrorism, the question for one comprehensive international terrorism treaty remained, which can be seen as the main reason why the international community wanted to
draw up a comprehensive anti-terrorism treaty since December 1996 (United Nations 1996). Resolution 51/210 of the General Assembly of the United Nations on December 17, 1996 attempted to impose certain measures to eliminate international terrorism (ibid.).
Additionally, to the active engagement in drafting various anti-terrorism treaties, the General Assembly as the legislative body of the United Nations has also developed a wide range of anti-terrorism instruments in which various resolutions have been adopted since 1972 (United Nations 1972). With the continuous emphasis on the human rights aspect, the importance of cooperation, the social-economic causes of terrorism and the increasing danger of nuclear terrorism (United Nations 2019). However, until now no consensus has been reached on the adoption of such a treaty and the cause of this lies mainly in the continuing disagreement regarding the definition of the concept "terrorism" and scope of the treaty (Weinberg et al. 2010: 777).
In order to create coherence regarding the development of anti-terrorism instruments, the United Nations General Assembly adopted the Global Counter-Terrorism Strategy on September 8, 2006, which is reviewed every two years making it a dynamic document attuned to Member States’ counterterrorism priorities (United Nations 2018). The strategy is a unique global instrument to enhance national, regional and international efforts to counter terrorism, in which by its adoption all Member States have agreed to a common strategic and
operational approach (ibid.). Not only a message will be send that terrorism is unacceptable in all its forms and manifestations, but also resolving to take practical steps individually and collectively to prevent and combat terrorism (ibid.). This strategy of Global
Counter-Terrorism in the form of a resolution and an annexed Plan of Action composed of four pillars, each of which has one specific objective: (1) Addressing the conditions conducive to the spread of terrorism, (2) Preventing and combat terrorism, (3) Building states’ capacity and strengthening the role of the United Nations, and (4) Ensuring Human rights and the rule of
law. Furthermore, two committees (CTITF and UNCCT) are being set up to implement this strategy that are operating since 2017 under the name of the United Nations Office of
Counter-Terrorism (UNOCT) (ibid.). An innovative approach is used that is characterized by a preventive and multidisciplinary approach. However, the United Nations have not ‘yet’ agreed on a single definition on what terrorism is, because an unequivocal definition of terrorism would remove the political distinction that some make between the actions of ‘freedom fighters’ and ‘terrorists’ (United Nations CTED 2019: 1). The ability to develop a comprehensive strategy to combat terrorism is thus limited by the inability of Member States to reach an agreement, including the developing of a definition on terrorism (UN.org 2019). This prevents the United Nations from exercising its moral authority and expressing an unambiguous message that terrorism is never an acceptable tactic (ibid.).
Moreover, in 2005 the European Union Council adopted the EU counterterrorism strategy to fight terrorism globally and to make Europe safer, in which the EU uses a comprehensive approach to tackle the issues of foreign fighters and homegrown terrorism (European Council 2019). Actions in this consist of strengthening the rules to prevent new forms of terrorism, reinforcing checks at external borders, enhancing firearms control and creating a dedicated body to curb terrorist propaganda online (ibid.). Also here the strategy focuses on four pillars: (1) Prevent; combating radicalization and recruitment to terrorism, (2) Protect; citizens and infrastructure and reducing vulnerability to attacks, (3) Pursue; hinder terrorists’ capacity to plan and organize, and to bring these terrorists to justice, and (4) Respond; preparing, managing and minimizing the consequences of a terrorist objective (ibid.). This requires work at the national, European and international level to reduce the threat from terrorism and our vulnerability to attacks (European Council 2005). In order to facilitate the relevant cooperation between the counterterrorism offices between the respective Member States, the European Union has introduced certain legislation that these Member
States include in their legislative process and is supported by EU policy programs (Lowe 2018: 42). To create an area of citizenship, freedom, security and justice, the Committee of Ministers of the Council of Europe emphasized certain reasons for introducing anti-terrorism legislation together with domestic anti-terrorism provisions at Member State level – "The
protection of life and property of citizens is a core task giving legitimacy to public power and public polices and citizens expect the threats to their health and safety will also be countered at European level” (Council of Europe: Committee of Ministers 2005: 2). The Council
Framework Decision on combating terrorism (2002/475/JHA) including the amending decision (2008/919/JHA) requires Member States to align their legislation and introduce minimum penalties for terrorism activities, in which it also defines the actions that amount to an terrorist act as:
(a) Attacks upon a person’s life which may cause death; (b) Attacks upon the physical integrity of a person; (c) Kidnapping or hostage taking;
(d) Causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss;
(e) Seizure of aircraft, ships or other means of public or goods transport; (f) Manufacture, possession, acquisition, transport, supply or use of weapons,
explosives or of nuclear, biological or chemical weapons, as well as research into, and development of, biological and chemical weapons;
(g) Release of dangerous substances, or causing fires, floods or explosions the effect of which is to endanger human life;
(h) Interfering with or disrupting the supply of water, power or any other fundamental natural resource the effect of which is to endanger human life;
(i) Illegal system interference, as referred to in Article 4 of Directive 2013/40/EU of the European Parliament and of the Council in cases where Article 9(3) or point (b) or (c) of Article 9(4) of that Directive applies, and illegal data interference, as referred to in Article 5 of that Directive in cases where point (c) of Article 9(4) of that Directive applies; and (j) threatening to commit any of the acts listed in points (a) to (i)
(European Union 2017).
In addition, the nature of these terrorist acts must be aimed at: (a) Seriously intimidating a population;
(b) Unduly compelling a government or an international organization to perform or abstain from performing any act; and
(c) Seriously destabilizing or destroying the fundamental political, constitutional, economic or social structures of a country or an international organization (ibid.).
Moreover, Europol – European Union’s law enforcement agency – plays a vital role in the cooperation between Member States of the EU in their fight against terrorism (Europol 2019). Europol works with many non-EU partner states, international organizations, and in a conversation with Manuel Navarrete, Head of Counter Terrorism and Financial Intelligence at Europol, it became clear that Europol could be seen as an instrument of the European Union (Europol 2019; Navarrete 2019). It’s main activities focus on Member States support, which is connected to fighting terrorism, whereby Europol can be seen as an analytical machine providing analytical support to the Member States, in which information is collected and Europol acts as an internal center repository of information on terrorism (Navarrete 2019). In
the mean time, Europol also develops an activity of supporting Member States against terrorism online consisting of; (1) prevention that monitors open sources, and (2) obtain evidence to support a case (ibid.). However, Navarrete emphasizes that: “We are lacking a
terrorism definition” – but this lacking does not stop the Member States to take some action
against terrorism activity and terrorist organizations (ibid.). What does indeed exist in the European Union framework, and is also aforementioned in the Council Framework Decision on combating terrorism, is the definition of a ‘terrorist act’ and is implemented in every single Member State (ibid.). Moreover, when a Member State doesn’t have the ‘terrorist act’ in the legislation, the European Union legislation is applied (ibid.). Additionally, it is more difficult to define what is terrorist propaganda and which criteria are used vary per Member State, making it a difficult process to tackle terrorist propaganda, in which we speak about Europol as being the ‘threshold to identify’ and that is different from ‘making a criminal case’ (ibid.). At the end of the day, terrorism or a terrorist act remains an assessment of the law
enforcement, security services and the magistrate (ibid.). Navarrete (2019) argues that this definition possesses some difficulties, in which there is a lot of debit in the United Nations for labeling terrorism, and it would be advisable to develop a concept, but it is not necessary for taking action against terrorism (ibid.). It is important to keep in mind, the importance to create a general consensus about what is what, also for terrorism, but when you are going to
scrutinize the concept, the lines could be blurred (ibid.). Furthermore, Navarrete (2019) describes that inside the European Union there is a common understanding about ‘terrorist acts’ connected to political violence, which is somehow the basis for the legal framework, but at the same time because of the activities of terrorism in different Member States, also a divergent national concept of terrorism exists, which can contribute to a complication of the process (ibid.).
Additionally, the United Nations and the European Union share common values, based on the Charter of the United Nations, and they both believe the need to strengthen
international law and standards, and to ensure respect for the rule of law and human rights (European Union 2019). “It is the interest of both organizations to work together to promote
these ideas” – on May 25, 2018 these organizations held their first Counter-Terrorism
Political Dialogue since the establishment of the UNOCT in Brussels, in which the dialogue reaffirmed the common determination and mutual interest in strengthening their partnership on counterterrorism (ibid.). However, there is also a discrepancy here about the way terrorism is labeled, in which the United Nations is limited by the inability of Member States to reach an agreement on the concept of terrorism, and besides the European Union uses a definition on terrorist acts, which is also somewhat used by the United Nations. So there is not only the difference, as Navarrete already pointed out between the European Union and individual Member States that have developed national concepts, but also between the international organizations that engage with the fight against terrorism.
4.2 The national legal framework
As Ronald Jansse (2005: 56) argues, a look at the past is necessary to identify the arguments that underlie the new legislation and then to better value it. So in order to set out the Dutch legal framework, a historical description of the so-called "Dutch Approach" on
counterterrorism policy will be given first, where after several articles will be included in the Dutch Criminal Code. Next, various government instruments and their counterterrorism approach will be described, after which this will be analyzed together with an expert in the field of counterterrorism policy called Floris Vermeulen.
For the time being it can be established, without trivializing the events concerning the Moluccan train hijacking at the Punt in 1977, that the Netherlands is one of the few countries
in Western Europe that has been left out of a large-scale terrorist attack comparable to, for example, the attacks from 9/11 (Van der Woude 2009: 5). The Dutch government, on the other hand, took the Moluccan action seriously, but there was not thought of criminalizing terrorism by means of a change in the law (ibid.). However, at the time of this Moluccan action, the cabinets of Den Uyl and later Van Agt developed a policy to combat the
phenomenon of terrorism, consisting of a judicial primate, which implied that the decision-making authority lay with the Minister of Justice and the executive body was the police (idem: 7). Despite this primacy, including the monopoly on violence, the starting point was characterized by the reluctance to use violence, the pursuit of non-violent solutions as long as this was possible, and this policy was referred to as the 'Dutch Approach', which was also in line with the way how politics and society approached political minorities in the 1970s (ibid.). The Dutch government not only imposed the obligation to take measures with regard to terrorism activities, but also to keep a measure of counterterrorism measures, whereby the open nature of Dutch society should not be damaged (ibid.). An effective approach to
terrorism phenomena required an effort and extension of the existing force apparatus, with no changes to criminal structures and prosecuting powers, and despite the violent Moluccan action, no special anti-terrorism laws were introduced – because it was thought that the existing legislation had sufficient options at the time (idem: 7-8).
Only since 9/11, including the ensuing political and public unrest following the
murders of Pim Fortuyn and Theo van Gogh, the Dutch government was woken up, which led to changes in thinking about how to deal with terrorism, including the arising of a culture from 'prevention is better than cure' (idem: 5, 9). The nature of this approach to crime policy is aimed at extreme prevention, in particular in the field of terrorism legislation – whereby the Dutch government is obliged to limit all possibilities for injury or damage through legislation and associated measures (idem: 9). This so-called ‘Counterterrorism and security action plan’
included a wide range of adjustments, ranging from an extension of security services and police to stricter border controls, legislation that facilitates the interception of calls and more supervision of financial transactions (Donner 2002). For criminal law, this resulted in the development of a set of instruments for criminal measures, consisting of a character aimed at prevention, whereby the fight against terrorism mainly relates to the prevention of terrorism attacks (Van der Woude 2009: 10). In addition to this broadening of criminal terrorism legislation, administrative and criminal measures have been implemented, but the scope of current terrorism legislation only becomes clear when all legislation is considered in conjunction, as reflected in the Criminal Code (idem: 10-11).
According to the Dutch Criminal Code, this is applicable to anyone whose extradition in respect of a terrorism crime or a crime in preparation or facilitation of a terrorism crime has been declared inadmissible, rejected or refused (Overheid 2019). Just like at the international level, also here the concept terrorism is not reflected in the Dutch Criminal Code, but the concept of a terrorist crime or terrorist act is adopted and criminalized, with the emphasis on a crime committed with a terrorist purpose. Article 83 paragraph 1 describes what is meant by a terrorist act and emphasizes that each of the crimes described in articles 92 to 96, 108 second paragraph, 115 second paragraph, 117 second paragraph, 121, 122, 157 part 3, 161quater part 2, 164 second paragraph, 166 part 3, 168 part 2, 170 part 3, 174 second paragraph and 289, as well as in article 80 second paragraph Nuclear Energy Act, if the crime was committed with a terrorist purpose, it could be considered as a terrorist act (ibid.) These diverse crimes include homicide, severe assault, hijacking, kidnapping, etc. and are not necessarily labeled as a terrorist act (Overheid 2019; NCTV 2019). It is important that these crimes are committed under a ‘terrorism intent’ if it is to be considered a terrorist act, meaning "The intention to
terrify the population or part of the population of a country, or to illegally force a government or international organization to do something, not to do something or to tolerate it, or to
seriously disrupt or destroy the fundamental political, constitutional, economic or social structures of a country or an international organization” (Overheid 2019). Additionally, the
preparation, facilitation and financing of terrorism is also seen as a terrorist act and these criminal acts are punished more severely if they are committed with a terrorism intent (ibid.). Furthermore, certain amendments to national laws and regulations have been implemented on the three pillars of the National Coordinator for Counterterrorism and Security: (1) combating terrorism, (2) protecting national security and (3) on the playing field of cyber security
(NCTV 2019). The law makes a distinction between recruitment for jihad and collusion with the aim of committing a terrorist act, in order to facilitate the criminal action (ibid.).
Moreover, the following laws have been adopted – law on the investigation of terrorist crimes, law on strengthening the criminal law approach to terrorism, law on the prevention of money laundering and financing of terrorism, approval law treaty on intensifying cross-border cooperation, law precursors for explosives – which together contribute to the fight against terrorism (ibid.). Concerning the ‘Action Program for the Integrated Approach to Jihadism’, following the first pillar, three laws have entered into force since 2017: temporary
administrative measures to combat terrorism, Kingdom Act amending the Passport Act and changes to the Kingdom Act on Dutch nationality, which together contribute to administrative measures for the government in order to ease the process of counterterrorism (ibid.).
Likewise, more laws and powers have been adopted, which contribute to the cooperation and development of a strategic framework on terrorism threat and extremism threat in the
Netherlands (ibid.). The assessment of these terrorism criminal activities is based on the fundamental rights of Dutch judges, international organizations, and the assessment of the law in light of the applicable case law of the European Court of Human Rights, which again indicates the importance of cooperation in assessing and combating terrorism (Kempen and Voort 2010: 10-20).
Despite the existence of different types of terrorism, nowadays, the greatest threat is posed by a global religious struggle of Jihadism (NCTV 2019). Many government
organizations are involved and at central government level these include services such as AIVD, MIVD, Police, OM, KMar, IND and Customs (ibid.). The municipalities play an important role at the local level and coordination is also taking place with other governments and international organizations, such as the European Union and the United Nations (ibid.). The relevant parties in the Netherlands use a certain definition of terrorism: “The ideological
threat of threatening, preparing or committing serious violence against people, or acts aimed at causing socially disruptive property damage, with the aim of bringing about social
changes, terrifying the population or influencing political decision-making” – although this
definition is not taken up in the legal field for criminalization, it is important to note that the fight against terrorism in the Netherlands focuses not only on the actions themselves, but also on the trajectory therefor (ibid.). An expert at the local level of counterterrorism, Floris
Vermeulen (2019), argues that definition issues in counterterrorism are important, but it’s also immediately complicated whereby a specific definition of terrorism is not so much the
problem, but rather how people are declared terrorists – which describes the importance of simultaneous definition and knowledge of the preliminary stage. Concepts such as radicalism and extremism also apply to this preliminary stage, which are also unclear and this has a lot of impact on the policies that are being implemented and how people respond to them
(Vermeulen 2019). It stands out that from a legal point of view, looking at the additional laws, it is stretched further and further, in order to give the government the opportunity to
implement this type of policy (ibid.). Particularly when people left for Syria and the Islamic State, it turned out that indeed non-violent groups of people who actively engaged in
extremist networks apparently quickly made the move to a context where violence played a significant role, and the legal playing field got an extra push (ibid.). This has resulted in a
very broad policy, which means that it is no longer entirely clear whether it is merely counterterrorism policy, which makes it legally complicated to follow this Dutch approach and this may result in a gap between what is legally possible and what is ultimately possible (ibid.). However, it must be said that the issue of having no clear concept of terrorism partly contributes to the inefficiency of the Dutch counterterrorism policy because this creates uncertainty and the policy becomes more diffuse, larger and difficult to evaluate at all, but on the other hand with its approach, the Netherlands is very close to the community and can easily involve in these communities, with a lot of contact, in which information is gathered and there is more focus on the prevention aspect (ibid.).
5. Conclusion
In this research, an answer was sought to the question: To what extent is the vacuum of a definition of terrorism in (inter)national law influencing the functioning of the Dutch counterterrorism policy? To this end, a qualitative study was conducted into the current counterterrorism policy of the Netherlands in connection with the problem of defining the concept of terrorism. Herein, scientific literature, legal documents on the national and international level and interviews with experts in the field of counterterrorism were used.
After qualitative examination, it appears that the problem of the concept of terrorism is not only about the lack of a vacuum of consensus definition of terrorism, but from there also the existence of a multiplicity of different, varying definitions of the concept of terrorism that are used for different purposes in different playing fields. For example, it has been
demonstrated that the concept is used for political purposes and it has also been demonstrated that the concept ‘terrorism’ is missing in the judicial playing field. That makes this problem both political and judicial in nature with an overlap between the two.
Despite frantic attempts by the international community to produce an
all-encompassing definition of terrorism to tackle one of the greatest threats to the international community, there is still no agreement, which according to some involves combating the phenomenon of terrorism and moreover no clear approach to combating terrorism exists. It is emphasized that it is a banality to start with legal treatments on terrorism with
acknowledgment that the international system has found itself incapable of producing a consensus definition about the concept of terrorism in international criminal law. The lack of a comprehensive definition has everything to do with the fact that the concept of terrorism is labeled as an essentially contested concept, which is globally addressed in different ways, defined and has different purposes. Herein, the Member States cannot agree on a consensus definition at the international level.
Additionally, the political debate demonstrates that definitions of concepts are
important in governance and law, in which concepts can be approached, as "implementation is
the continuation of politics with other means". This means that policy implementation could
no longer be seen as a purely technical, "politically neutral" matter. As a concept, terrorism herein generates, a large amount of social and political activity, in which politicians often use the concept terrorism for political gain, and terrorism becomes a negative ideograph of Western identity. The study of ‘Critical Terrorism Studies’ argues this importance and difficulty in the field of terrorism, whereby the concept terrorism can take on a political charge and can be used for political gain. In addition, experts in the field of counterterrorism emphasize the possible deterioration in the efficiency of the fight against terrorism due to a lack of definition.
However, the phenomenon of terrorism must be combated and after examination of legal documents at both the international and national level, it is clear that there are certain strategies for counterterrorism. At the international level, it may turn out that the United Nations, together with the European Union, has given itself a unique innovative role in the fight against terrorism. Nevertheless, there is a lack of a comprehensive international anti-terrorism treaty with an associated lack of a universal definition of anti-terrorism. Both
organizations have developed a strategy consisting of four pillars, which is characterized by a preventive and multidisciplinary approach, but is somehow preventing the moral authority and expressing an unambiguous message about terrorism due to the lack of an
all-encompassing definition. However, this lacking does not stop the action taken against terrorism activity and terrorist organizations, in which the definition of a 'terrorist act' is implemented in international legal documents and also implemented in every single Member State, with somehow a basis for the legal framework is developed. Herein, different
