Federal Prosecutor v Hamza B, Harris C-K, Abdelfattah A, Younnes HA, Kamal A and Sami L

Court	Tribunal de Première Instance Francophone de Bruxelles, Belgium
Case number	FD.35.98.212/11 (ex: BR35.98.7894-11)
Decision title	Judgement
Decision date	6 November 2015
Parties	Federal Prosecutor Hamza B (B. H.) Harris C-K (C.-K. H.) Abdelfattah A (A. A.) Younnes HA (H. A. Y.) Kamal A (A. K.) Sami L (L. S.)
Categories	Terrorism
Keywords	Al-Shabab, Foreign fighters, Iraq, Islamic State, Jabhat al-Nusra, Katiba al-Muhajirin, recruitment, Somalia, Syria, Terrorism, Travel
Links	http://jure.juridat.just.fgov.be/pdfapp/download_blob?idpdf=F-20151106-5

Summary

On 6 November, a Belgian Court handed down its judgment in a case concerning five foreign fighters and another individual who assisted the fighters travelling from Belgium. The foreign fighters had travelled to Somalia or Syria where they had joined jihadist groups, including Al-Shabab and Jabhat al Nusra. One of the accused, Kamal A, is thought to still be fighting in Syria with Jabhat al Nusra and another, Sami L, is believed to have died while carrying out a suicide attack in Iraq. The defendants received sentences ranging from 3 to 10 years’ imprisonment for having participated in the activities of a terrorist group via their various actions of support, assistance or actual fighting in the conflict.

Procedural history

Sami L had previously been convicted and sentenced to 3 years’ imprisonment by the Court of Appeals in Brussels on 27 August 2013 for trying to participate in the activities of a terrorist group, namely Al-Shabab in Somalia (pp. 3 and 27). While investigating Sami L’s travel in 2013, suspicions arose that an active cell in Belgium, involving Hamza B, was operating and a new investigation was opened that led to the case at hand (p. 4).

Of the accused, both Sami L and Kamal A were tried in absentia (p. 3), with Kamal A thought to still be in Syria (p. 51) and Sami L believed to have died in a suicide attack he committed in Iraq in 2015 (p. 54).

Legally relevant facts

This case involved six individuals and two separate sets of charges.

First, Hamza B was charged with having participated as a leader in the activities of a terrorist group, including by providing information, financial support or material support to a terrorist group (pp. 2 and 23-24). Specifically, it was alleged that he had adopted a radical Salafist ideology and had used his influence in Belgium to encourage individuals to travel to combat zones to participate in the “global jihad” (pp. 23-24). After considering the evidence, Hamza B, who had never travelled to Somalia or Syria (p. 24), was found to:

Have become radicalised and to be in possession of various materials, including videos and documents, relating to the jihad (p. 24);
Have organised “prayer dinners” at his house with other likeminded individuals, including the co-accused in this case, in which these jihadi videos were shown (p. 26);
Have been in contact with individuals in France who were known to the authorities due to their connections to terrorism (p. 25); and
Have knowingly assisted Sami L with his attempt to join the terrorist group Al-Shabab in Somalia by encouraging Sami L’s jihadist views, assisting with planning the trip to Somalia, managing Sami L’s affairs in Belgium (for example, his apartment and bank account) and sending money to Sami L (pp. 27-28).

Second, the remaining five persons, Harris C-K, Abdelfattah A, Younnes HA, Kamal A and Sami L, were charged with having participated in the activity of a terrorist group, including by knowingly providing information, financial support or material support (pp. 2-3, 32, 36, 43, 51 and 54). Amongst other charges, each of these accused were alleged to have travelled to a combat zone, respectively Somalia or Syria, and joined terrorist groups, such as Jabhat al Nusra (JaN) and Al-Shabab (pp. 32, 36, 43, 51 and 54).

In the case of Harris C-K:

He was found to have had a marked interest in radical Islam and the jihad, and regularly attended Hamza B’s “prayer dinners” (p. 33);
There was insufficient evidence to prove beyond a reasonable doubt that he had joined Al-Shabab in 2011-2012 (pp. 34-35); and
He did not contest that he had travelled to Syria in mid-2013 with Sami L. He similarly agreed that he had joined and fought on behalf of JaN, ultimately being injured in a bombing in March 2014 (pp. 36).

In the case of Abdelfattah A:

He was found to have previously booked flights to Turkey on several occasions, including once with Younnes HA and Kamal A, but ultimately had not undertaken these trips (p. 37);
He had been in contact with Hamza B and Younnes HA as well as someone in Syria (p. 37);
On 17 February 2014, he had travelled to Turkey with another person and subsequently sent text messages from Syria (pp. 37-38);
He had a radical view of Islam, a significant interest in the jihad, and he attended Hamza B’s “prayer dinners” (p. 38);
He had given his brother, Kamal A, a bag of personal items when in Syria and reserved flights in a travel agency in January 2013 (pp. 39 and 42);
The Court rejected his argument that he had travelled to Syria to convince his twin brother, Kamal A, to return to Belgium (pp. 40-41) and found instead that his intention had been to travel to Syria and join JaN (pp. 41-42); and
It was unclear exactly when Abdelfattah A had returned to Belgium (pp. 41-44).

In the case of Younnes HA:

He had been in contact with Hamza B, Abdelfattah A and Kamal A, and had previously booked tickets to Turkey with Abdelfattah A and Kamal A but did not take the flights (pp. 43-44);
He had previously travelled to Turkey in April 2013 with Kamal A and returned to Belgium in July 2013, using a false identity (p. 44);
He booked and subsequently missed two further flights to Turkey in 2013 (p. 44);
He flew again to Turkey in October 2013 and returned to Belgium in January 2014 (p. 44);
He believed in a radical version of Islam, had attended Hamza B’s “prayer dinners” and was very close to Kamal A (pp. 44-45);
The Court rejected his argument that he had gone to Syria to see the situation for himself and that he had worked in a refugee camp once there (pp. 45-46); and
The Court found that, inter alia, he had travelled with Kamal A in April 2013, there were pictures of him in a military uniform, he had been to Kafr Hamra (which was an important spot for fighters from Belgium), and he was involved with JaN (pp. 47-50).

In the case of Kamal A (in absentia):

He had been in contact with Hamza B and had previously purchased flights to Turkey but ended up not travelling (p. 51);
He left from the Netherlands and travelled to Turkey in April 2013 with Younnes HA and another person (p. 51);
Although there was not a lot of evidence pertaining to Kamal A’s state of mind, his ex-wife had given evidence that he was radicalised in 2010 and had expressed his wish for his family to go with him to Syria to fight (p. 52);
The Court held that he had gone to Syria to join JaN, relying upon phone and IT evidence as well as the evidence from the hearings (pp. 52-53); and
He also assisted Harris C-K and Sami L in organising their subsequent voyages to Syria (p. 53).

In the case of Sami L (in absentia):

Following his release from prison in June 2013, Sami L purchased certain items and then subsequently left for Syria with Harris C-K (p. 54);
He was very close friends with Hamza B and had attended the “prayer dinners” (p. 54);
He had a racial vision of Islam and was interested in the jihad, possessing a USB drive with Salafist jihad videos (pp. 54-55);
In Syria, evidence (for example, Skype conversations with his mother, his use of a Syrian phone number and a video found in the investigation) showed that Sami L first joined JaN and subsequently pledged allegiance to the Islamic State (p. 54); and
He is believed to have died in a suicide attack in Iraq but, due to a lack of proof of his death, the case was not closed (p. 54).

Core legal questions

Are the accused entitled to the exclusion found in article 141bis?
What is required to prove a terrorist organisation exists as per article 139?
What is required to demonstrate that an accused is a participant in or leader of a terrorist organisation under article 139?

Specific legal rules and provisions

Articles 25, 31, 51, 52, 56, 79, 80, 137, 139, 140 and 141bis of the Belgian Criminal Code.

Court's holding and analysis

Article 141bis – International Humanitarian Law Exclusion

Article 141bis excludes the provisions of Titre Iter of the Belgian Penal Code, which deals with terrorist crimes, from applying to the activities of armed forces during a period of armed conflict, as regulated under international humanitarian law (IHL), and the armed forces of a State in the exercise of their official functions. Harris C-K argued that this exemption applied to the defendants who had joined “armed forces”, as understood in this article, in the Syrian non-international armed conflict (NIAC) (p. 5).

In addressing the issue, the Court first examined the history of the conflict in Syria (pp. 6-9), then analysed the relevant provisions under IHL (pp. 9-12) and finally applied the law to the facts at hand (pp.13-14). In discussing IHL, the Court defined NIACs and looked at international jurisprudence in relation to “organised armed groups”, finding that factors, such as the existence of a headquarters and command structure or the ability to impose disciplinary measures, are relevant to determine whether a group qualifies as “armed force” as per article 141bis (pp. 9-11). In distinguishing an “organised armed group” from a “terrorist group”, the Court noted that an “organised armed group” will generally have an organised structure or hierarchy and the capacity to implement IHL, thus also making the parties identifiable (p. 12).

The Court held that the groups in question, consisting of Katiba Al Muhajirin, JaN and the Islamic State in Iraq and the Levant, functioned clandestinely, were made up of decentralised cells that did not carry arms openly or wear identifiable uniforms, lacked the capacity to implement IHL, and lacked the capacity to organise coordinated joint attacks (pp. 5 and 13). Moreover, Harris C-K’s own evidence reinforced the finding that there was a lack of organisation and command structure as he said that divisions within the group were chosen at will, delegated missions could be rejected and their leader was self-appointed (p. 14). Accordingly, the Court concluded that the groups joined by the accused persons could not constitute “armed forces” and thus the accused were not entitled to the exclusion in article 141bis (p. 14).

Terrorist Organisations under article 139

A terrorist organisation is defined by article 139 as:

A structured association of minimum three people;
Continuing over a period of time; and
Acting in a concerted way with the aim of committing terrorist crimes as defined in article 137 of the Belgian Criminal Code (p. 16).

The Court confirmed that a terrorist group cannot be created by chance to immediately commit a crime but that it can be a group of diverse individuals who contribute in differing ways to the group and believe in its aims (pp. 16-17). Groups may also stay in contact via various mediums, including in person, by the phone or online (pp. 17-18). The Court stressed that what remains important is that there is demonstrable consultation, complementarity and coherence between the actions of the members (p. 18).

In relation to the third element in article 139, the Court held that the terrorist crimes envisaged in article 137 must be sufficiently grave and intended to intimidate the population, unduly compel public authorities or an international organisation, or seriously destabilise or destroy fundamental political, constitutional, economic or social structures within a state or international organisation (p. 18). Accordingly, terrorist intent has been found in groups that aim to overthrow a government through violence to establish an Islamic regime (p. 19). Moreover, it is not necessary that the offences described in article 137, such as murders, hostage taking or bombings, have taken place; the important factor is whether the group aims to commit these crimes (pp. 19-20).

When applying this to the charges against Hamza B, the Court rejected the assertion that an alleged terrorist group had been established in Belgium (pp. 29-31). The Federal Prosecutor had sustained that Sami L, Hamza B and EV – an individual arrested while travelling to Somalia with Sami L – formed a terrorist group. The Court held, however, that it could not be proven that Hamza B had had contact with EV and, thus, the group did not reach the minimum of three people (p. 29). It then looked at the “prayer dinners” and concluded that although the radical ideas discussed in the “toxic” “prayer dinners” were troubling, there was insufficient evidence that any terrorist group had formed or that Hamza B had indoctrinated or recruited any members (p. 30). Thus, the Court concluded that the alleged terrorist groups described by the Federal Prosecutor did not fulfil the criteria in article 139 (p. 31).

In contrast, the Court noted that it was not contested that Al-Shabab fulfils the criteria to be considered a terrorist group under article 139 (p. 29). It had earlier stated that Katiba al-Muhajirin, JaN and the Islamic State are terrorist groups (p. 9).

Participant or Leader of a Terrorist Organisation

Article 140 criminalises the participation in activities of a terrorist group with the knowledge that the participation contributes to the commission of a terrorist crime (p. 20). The acts that constitute “participation” under article 140 are not limited to the examples within the article (p. 20). Similarly, the frequency of contributions is not ultimately decisive, nor must the contribution be directly linked to the perpetration of an offence (p. 20). Rather, the participants must know that their efforts contribute to the commission of an offence, however modest the assistance or however far removed the actual crime may be (pp. 20-21). In contrast, a person who believes in the ideas of a group or who has contact with its members without contributing to the group would not come within the conduct criminalised by these provisions (p. 21). Overall, to be found liable, it must be proven that a terrorist group exists under article 139 and that an accused consciously participated in an activity of the group (p. 22).

Harris C-K (p. 36), Abdelfattah A (pp. 42-43), Younnes HA (p. 50), Kamal A (p. 53) and Sami L (pp. 54-55) were all convicted of participating in a terrorist organisation in accordance with the factual findings detailed above. For example, fighting in Syria on behalf of JaN (p. 36), assisting others with planning their trips to Syria (pp. 42-43) and joining JaN (p. 50) constituted participation in the activities of a terrorist group.

To be considered a leader of a terrorist group, the preparatory work indicates that an individual must assume principal responsibility for the group, including for example by choosing members of the group, making financial decisions for the group, and making choices that guide the future of the group that are followed by its members (p. 22). A leader of a terrorist group is subject to a heavier penalty than its members due to the central role played by a leader (p. 22). A leader need not be the only person at the top of the group’s hierarchy but instead the individual’s role and responsibilities are considered relevant (p. 23).

In the case, Hamza B was the only of the accused persons to be charged with having been a leader of a terrorist group but, as the Court held no group existed in Belgium and he had not travelled to Syria or Somalia, he was not convicted of this charge (p. 31).

Verdicts and Sentences

Hamza B, for attempting to participate in an activity of a terrorist group between 1 December 2010 and 4 August 2011 through his efforts to assist Sami L join Al-Shabab in Somalia (pp. 29 and 31), was sentenced to 3 years’ imprisonment and a fine of €6,000 (p. 66).
Harris C-K, for participating in the activities of a terrorist group between 1 December 2013 and 17 March 2014 through his decision to fight in Syria on behalf of JaN (p. 36), was sentenced to 4 years’ imprisonment and a fine of €6,000 (p. 67).
Abdelfattah A, for participating in the activities of a terrorist group and providing material aid to a terrorist group between 29 January 2013 and 17 April 2014 through his voyage to Syria, his integration into JaN, his transportation of a bag of personal effects to Syria for his brother and by assisting with the purchase of flight tickets for others convicted on terrorism charges (pp. 42-43), was sentenced to 4 years’ imprisonment and a fine of €6,000 (pp. 68-69).
Younnes HA, for participating in the activities of a terrorist group through his journeys to Syria and joining JaN between 1 March 2013 and 14 January 2014 (p. 50), was sentenced to 5 years’ imprisonment and a fine of €12,000 (p. 70).
Kamal A, for participating in the activities of a terrorist group between 1 March 2013 and 4 February 2015 by travelling to Syria and joining JaN, assisting Harris C-K and Sami L with organising their voyage to Syria and for having likely assisted Abdelfattah with his journey to Syria to join JaN (p. 53), was sentenced in absentia to 5 years’ imprisonment and a fine of €18,000 (p. 71).
Sami L, for participating in the activities of a terrorist group between 27 June 2013 and 4 February 2015 by travelling to Syria to join JaN and by subsequently joining the Islamic State (pp. 54-55), was sentenced in absentia to 10 years’ imprisonment and a fine of €60,000 (p. 71).