Prosecutor v. Imane B. et al.

Court	District Court of The Hague, The Netherlands
Case number	09/842489-14,09/767038-14,09/767313-14,09/767174-13,09/765004-15,09/767146-14 (continues below)
Decision title	Judgment
Decision date	10 December 2015
Parties	Prosecutor Imane B. (Case No. 09/842489-14) Oussama C. (Case Nos. 09/767038-14 and 09/767313-14) Azzedine C. (Case Nos. 09/767174-13 and 09/765004-15) Rudolph H. (Case No. 09/767146-14) Jordi de J. (Case No. 09/767256-14) Moussa L. (Case Nos. 09/767238-14 and 09/827053-15) Hicham el O. (Case No. 09/767237-14) Hatim R. (Case No. 09/765002-15) Anis Z. (Case No. 09/767077-14)
Other names	Context Trial
Categories	Terrorism
Keywords	Foreign fighters, Incitement, Non-international armed conflict, recruitment, Social Media, Terrorism
Links	Dutch decision English decision

Summary

In the ‘Context’ case, a large terrorism case in the Netherlands, nine individuals were found guilty of various terrorism offences, ranging from online incitement to the recruitment of individuals to travel to Syria. This case arose out of investigations into the flow of foreign fighters from the Netherlands – namely people heading to Syria in order to join various terrorist groups, including ISIS and al-Nusra. The prosecution successfully argued that an organisation existed in the Netherlands that aimed at recruiting other people to support terrorist groups in Syria and to travel to join the fighting. The case also looked into the use of social media, such as Twitter and Facebook, and its role in recruiting individuals.

The nine accused, including several individuals who had travelled to Syria, faced charges concerning incitement to join terrorist groups, the dissemination of inciting materials, the recruitment of people to travel to Syria, the participation in training to commit terrorist crimes, participation in a criminal and terrorist organisation, and other charges relating to inciting hate and defamation. The defendants were all convicted of differing offences and their sentences ranged from seven days’ to six years’ imprisonment.

Procedural history

In 2013, a police investigation, known as ‘Operation Context’, commenced following the receipt of information regarding the recruitment of individuals in the Netherlands to participate in the armed jihadi struggle in Syria. The rise in young people travelling to Syria from The Hague area shifted the focus of the investigation towards identifying whether an organised group was involved in promoting or inciting engagement with terrorism, and preparing individuals for the armed jihadi struggle (para. 4.1). The investigation included interviewing witnesses, searches and seizures, internet surveillance, and the interception of telecommunications (para. 4.6).

During the investigation, 17 suspects were initially identified, ten of whom were eventually charged (para. 4.2). Evidence emerged that one of the accused may be deceased, and the proceedings against him have been indefinitely stayed pending further evidence. Accordingly, the case at trial concerned the remaining nine individuals, two of whom were tried in their absence as they were in Syria (paras. 4.3-4.5).

Hearings on the substance of the case lasted for ten weeks, commencing in early September 2015 and concluding in November 2015. The judgment was delivered on 10 December 2015.

Legally relevant facts

The case arose in the context of the armed conflict in Syria that features a variety of armed groups, including so-called jihadi militias such as the Islamic State and Jabhat al-Nusra. These groups, who have been accused of committing war crimes, massacres, torture, enforced disappearances and forcible displacement, started to attract foreign fighters in 2011, with individuals from the Netherlands departing since autumn 2012 (paras. 6.1-6.10).

The case dealt with acts that occurred between 1 January 2012 and 31 October 2014 in both Syria and the Netherlands that related to the armed jihadi struggle in Syria (paras. 2.1, 3.3, 7.6 and 18.1). During this time, the nine accused participated to varying degrees in the armed jihadi struggle, by inter alia: posting and sharing inciting material, such as speeches, messages, images and videos, on the radio, Twitter, Facebook, YouTube and other websites; recruiting individuals to join the fight in Syria and facilitating their travel; travelling to Syria to take part in terrorist training; and conspiring to commit terrorist crimes (para. 2.1).

In addition, some of the accused formed an organization which aimed to incite people to participate in the armed jihadi struggle, to disseminate inciting materials, to recruit participants for the struggle, and to finance this struggle and to commit terrorist crimes (para. 18.128).

Core legal questions

Does Dutch criminal law relating to terrorism apply to violence or other criminal acts taking place in the armed jihadi struggle in Syria?
How is terrorist intent demonstrated?
What type of conduct comes within the ambit of incitement and dissemination, in particular in the context of social media?
What type of conduct constitutes recruitment?
To what extent were the accused participating in a criminal organization with terrorist intent?

Specific legal rules and provisions

Articles 14a, 14b, 14c, 14d, 57, 77b, 83, 83a, 96, 131, 132, 134a, 137c, 137d, 140, 140a, 157, 176b, 205, 261, 266, 267, 285, 288a, 289 and 289a of the Dutch Criminal Code (DCC).

Court's holding and analysis

Applicable Law
The court found that international humanitarian law (IHL) and Dutch criminal law were the applicable law in regards to the alleged crimes (para. 7.18). It held that Syria was in a non-international armed conflict (NIAC) as the defence failed to show that the conflict had been “internationalised” by international powers exercising “overall control” over differing armed groups active in Syria (para. 7.12). It held that combatant status does not exist for those who partake in the violence on behalf of a non-State group in a NIAC and, that any amnesties under Additional Protocol II should not apply to non-State groups that systematically violate IHL. This meant that participation in the armed conflict in Syria on behalf of non-State groups was punishable under Dutch law (paras. 7.23-7.29).

Terrorist Intent
As a preliminary issue, the court examined the alleged crimes committed by armed jihadi groups in Syria (see chap. 6) as well as the intent behind these crimes (see chap. 8). In applying art. 83a of the DCC, it examined whether the “immediate purpose” of the actions of these jihadi groups in Syria was “to instil terror” (paras. 8.1-8.2). First, the court determined that the jihadi armed groups, including IS and Jabhat al-Nusra, “want to overthrow president al-Assad’s regime and found a purely Islamic society […], and that the crimes they commit for that purpose […] also intend to instil terror amongst large parts of the Syrian population [sic]” (para. 8.10). Accordingly, crimes committed by these groups, including murder or causing explosions, “are committed with a thoroughly terrorist intent and constitute crimes of terrorism” (8.10). Importantly, and as is relied upon later on in the judgment (eg. paras. 18.128, 18.120 and 18.146), “[p]articipation in the armed struggle in Syria on the side of these jihadi armed groups always entails the commission of terrorist crimes”; the court likewise held that the accused must have been aware of this fact (para. 8.11). This allowed the court to convict Anis Z. and Hicham el O. of conspiracy to murder, to cause manslaughter and cause an explosion with terrorist intent as, inter alia, by joining IS and, later on, Jabhat al-Nusra, they had agreed to “to commit […] sufficiently specific terrorist crimes for [… the] organization” (para. 17.75).

Incitement and Dissemination
Regarding incitement, the court noted that the glorification of terrorism without additional circumstances (eg. producing propaganda, or the use or possession of an IS flag or its image – paras. 11.17 and 12.11) was not a crime under Dutch law (para. 11.17). However, inciting others to take part in the “armed jihadi struggle” or disseminating inciting material was punishable (paras. 11.1-11.13). The court looked specifically at online incitement, and found that incitement and/or dissemination of inciting material could take place in online fora, including through posts on Facebook and Twitter, where the communication is “related directly to inducing thoughts of participating in the armed jihadi struggle in Syria, trying to promote the opinion that this participation is desirable or necessary or arousing the desire to bring about that participation, or even to express a higher moral appreciation of that participation” (para. 12.4).

The court identified a number of types of messages posted on social media that can constitute incitement, including: messages that directly appeal for others to travel to Syria; messages glorifying foreign fighters and suggesting that these fighters should be imitated; and messages with images showing an IS flag combined with weapons or scenes of action (para. 12.105). It found that such messages constituted incitement when posted on a Twitter account (eg. paras. 12.62-12.69), a Facebook profile (eg. paras. 12.75-12.79), or a YouTube channel (eg. paras. 12.118-12.124). With regards to inciting messages posted on a Facebook page of which the accused Azzedine C. was one of the co-editors, the court found that it constituted complicity to incitement (paras. 12.87-12.88). By contrast, messages posted in a private Facebook group did not constitute incitement because they were not public (paras. 12.91-12.92). Finally, the court analysed situations where individuals ‘retweeted’ an inciting tweet without any further comment. It found these did not constitute incitement as “the principle with regard to Twitter is that retweet is not an endorsement” (para. 11.22, art. 131 DCC). However, a retweet may constitute dissemination of inciting material (art. 132 DCC; eg. paras. 12.54 and 12.56).

Recruitment
When considering the issue of recruitment to join terrorist groups in Syria, the court held that “perform[ing] acts […] aimed at manipulating, influencing and ripening ideologically (the mind of) [an individual] for the armed jihadi struggle in Syria”, for instance through conversations or by showing videos, constituted recruitment (paras. 14.44 and 14.46). It found that, to demonstrate recruitment, it was not required that an accused, for example Oussama C., made “a specific request [for the recruited individual] to join the armed jihadi struggle”, nor that the individual actually travelled to Syria (para. 14.45).

Criminal Organisation
In addition to the individual crimes of which the accused were found guilty, the court found that some of the accused formed or participated in an organization aimed at committing both ordinary crimes and terrorist crimes (para. 18.157), such as inciting travel to Syria and recruiting for it, as well as financing terrorism (para. 18.129). The court found that two of the accused (Azzedine C. and Rudolph H.) “worked together frequently and in a structured manner”, and therefore “there existed a sustainable and structured partnership, hence an organization within the meaning of article 140 DCC” (para. 18.32). It explained that “the recruiting effect that emanated from the inciting messages ha[d] been reinforced by the organization by disseminating them accompanied by extenuating, glorifying and/or justifying comments” (para. 18.91). Other accused persons (Oussama C., Hatim R., Hicham el O., and Anis Z.) were found to have participated in the organisation to a more limited extent and for a limited time (para. 18.33), by inter alia: facilitating meetings; acting as a speaker; administering websites and/or social media channels; and procuring SIM cards, contact information, telephone numbers or instructions (para. 18.152). In the same way that terrorist intent was imputed to the accused as individuals, the court held that, as the organisation aimed to enable people to travel to Syria to participate in the fighting and that “participation in the armed struggle in Syria entails terrorist crimes, the organization had a terrorist object” (para. 18.146).

Verdict and Sentencing
The court found all the defendants guilty of different offences and sentenced them, inter alia, as follows (para. 25):

Imane B., who was convicted of disseminating inciting material in relation to only one retweet (para. 12.132), was sentenced to seven days’ imprisonment.
Oussama C., who made multiple inciting speeches in the streets, on the radio and in videos (paras. 12.22-12.98), was convicted of incitement, recruitment, and participation in a terrorist/criminal organisation, and was sentenced to three years’ imprisonment.
Azzedine C., who had a leading role in the organisation (paras. 18.8-18.32), was convicted of incitement, disseminating material, participation in a terrorist/criminal organisation, inciting hatred, making defamatory statements and libellous defamation, and was sentenced to six years’ imprisonment.
Rudolph H., who co-administrated inciting websites and was closely involved in the publication of inciting materials (paras. 12.12-12.32), was convicted of incitement, disseminating material and participation in a terrorist/criminal organisation, and was sentenced to three years’ imprisonment.
Jordi de J., who had travelled to Syria for only a few months (para. 16.4) and “regretted his impulsive decision to go and fight in Syria soon after he had arrived in the training camp” (para. 16.24), was convicted of having acquired knowledge to commit a terrorist crime and was sentenced to 335 days’ imprisonment.
Moussa L., who “participated in the organization as a follower” (para. 4.29), was convicted of incitement, disseminating material, slander and threatening the life of a person, and was sentenced to 103 days’ imprisonment.
Hicham el O., who travelled to Syria in January 2013 and remained until August 2013 (para. 17.2), took part in a training camp (para. 17.5), and participated in the armed jihadi struggle there (para. 17.53), was convicted of conspiracy/intent to murder, conspiracy/intent to manslaughter, conspiracy/intent to cause an explosion, procuring information to commit crimes, and participating in a terrorist/criminal organisation, and was sentenced to five years’ imprisonment.
Hatim R., who has been in Syria since May 2013 (para. 17.13) and participated in the armed jihadi struggle there (para. 17.53), was convicted of intent to murder, intent to commit manslaughter, intent to cause an explosion, intent to obtain means and opportunity to commit these crimes, acquiring knowledge to commit these crimes, incitement, disseminating material and participating in a terrorist/criminal organisation, and was sentenced to six years’ imprisonment.
Anis Z., who has been in Syria since March 2013 (paras. 17.6-17.10), took part in a training camp (para. 17.11), and participated in the armed jihadi struggle there (para. 17.53), was convicted of conspiracy/intent to murder, conspiracy/intent to manslaughter, conspiracy/intent to cause an explosion, intent to obtain means and opportunity to commit these crimes, acquiring information to commit a terrorist crime and participation in a terrorist/criminal organisation, and was sentenced to six years’ imprisonment.