Prosecutor v. Maher H.

Court	District Court of The Hague, The Netherlands
Case number	09/767116-14
Decision title	Judgment
Decision date	1 December 2014
Parties	Prosecutor Maher H.
Other names	Context 1
Categories	Terrorism
Keywords	Conspiring, Dissemination, Foreign fighters, intent, Islamic State, Jabhat al-Nusra, participation, Terrorist Offence
Links	http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2014:14652

Summary

Maher H.’s case is the first conviction in the Netherlands of a Dutch ‘foreign fighter’ returning from Syria. He was convicted on 1 December 2014 and sentenced to three years’ imprisonment by the District Court in The Hague. Although it was not exactly clear what Maher H. had done in Syria, the Court found enough evidence to determine, among other things, that he was guilty of preparing to commit terrorist crimes, including murder and manslaughter. The Court based its decision on the fact that he had actually been to Syria and participated in the armed conflict there as well as his support for the jihad. Factors such as Maher H.’s decision to join a jihadi armed group in Syria that aimed to destroy Syria’s political structure and establish an Islamic State were also considered relevant in showing his terrorist intent. The Court moreover convicted Maher H. of disseminating inciting videos, pictures and a document. However, he was acquitted of conspiring to commit a terrorist offence due to a lack of evidence. This decision was subsequently appealed by the defendant.

Procedural history

On 12 April 2013, as a result of the increasing number of young people leaving to join the jihadi struggle in Syria, a police investigation, known as ‘Context’, started in the Netherlands. Maher H. is one of the individuals who was identified in the investigation as a returning foreign fighter. During the proceedings against him the key charges were as follows:

He prepared in the Netherlands to participate in the jihad;
He joined a jihadi group in Syria; and
He disseminated material that incites others to commit terrorist offences.

Related developments

Maher H. appealed this judgment to The Hague Court of Appeal. He ended up being convicted and sentenced to four years’ imprisonment.

Legally relevant facts

Before leaving to Syria

Maher H. and his wife, who he had met on Instagram, were arrested at Rotterdam Central station on 17 July 2013 after their recent marriage. As he was not suspected of any offence at that time, he was immediately released. However, his luggage was searched and it was found to contain outdoor clothing as well as a black headband displaying a religious Arabic text (para. 4.1).

In one of his bags, the police found a Sony laptop with a browser history that showed he had visited websites containing information about outdoor clothing, the jihad, Syria, the Taliban and terrorism. Also on his laptop, investigators found songs about jihad and death as a martyr. On top of that, chat messages dating from 28-30 June 2013 were discovered in which the defendant stated that his death was definite and hence that if he were to die during a jihad, “then so be it”. In these messages, he also made direct references to terrorist organisations such as Jabhat al-Nusra, the Islamic State of Iraq and Ansur al-Sharia (para. 4.1).

A text message from 17 July 2013 likewise showed that he asked for information on how to get to Syria. Maher H. eventually travelled to Syria via Amsterdam, Dusseldorf and Istanbul (para. 4.1).

During his stay in Syria

On 12 August 2013, during his stay in Syria, the defendant replaced his profile picture on Facebook with a picture of him holding a kalashnikov. On 5 October 2013, he sent a text message to his mother in which he hinted that he had not been able to give her any news for two days because he had been on the battlefield. There was also evidence indicating that, during this period, he had connected to the Wi-Fi networks “Islamic-front” and “Islamic-front 2”. Maher H. eventually left Syria in January 2014 and returned to the Netherlands in February 2014 (para. 4.1).

After leaving Syria

When the defendant came back to the Netherlands, he changed his Facebook cover picture and profile picture multiple times to replace them with an Islamic caliphate flag and an Al-Qaida flag (para. 4.1).

On several occasions during the period between 13 and 22 April 2014, he sent videos and photos, which were calls to participate in the jihad, to several of his contacts on WhatsApp. These videos and photos consisted of pictures of armed warriors on horseback, and lectures by sheikhs who approved of the jihad. On one occasion, he also sent a photo with a link to a website that assisted people wanting to go to Syria (ikwilnaarSyrië.nl) (para. 4.1).

On a Samsung laptop, different documents, images, and files were found containing radical Islamic material, pictures of fighters with Islamic flags, explosions and guns, and information about the jihadi state of mind and martyrdom (para. 4.1).

Statements

In addition to the above, the defendant made different statements indicating his interest in the Syrian conflict (para. 4.2):

He stated he wanted to go to Syria because he wanted to move to a country with a strong Islamic culture, where he could better practise his faith;
He stated he actually went to Syria to help an aid organisation because of the injustice that was taking place there. He did not want to mention which organisation it was because he thought it would give the organisation bad publicity if people associated it with someone considered to be a terrorist;
He denied ever participating in the armed conflict or going to the battlefield;
He said he is a supporter of the implementation of Sharia law in Syria;
The defendant explained the fact that he said he would die as a martyr by saying that if he were to die as an aid worker, he would die as a martyr as well; and
He said that he agrees with the foundation of an Islamic state but that he does not agree with the way it is happening in Syria (para. 4.2).

Core legal questions

Is the application of Dutch law precluded from situations where international humanitarian law (IHL) is also applicable, such as in non-international armed conflicts (NIACs)?
Did Maher H. conspire to commit murder and/or manslaughter with terrorist intent? (i)
Did Maher H. prepare to commit murder and/or manslaughter with terrorist intent? (ii)
- Did Maher H. participate in the armed conflict?
- Did Maher H. intend to commit murder and/or manslaughter?
- Did Maher H. intend to commit murder and/or manslaughter with terrorist intent?
Did Maher H. create the opportunity or acquire the means, information, knowledge and/or skills to commit multiple terrorist offences, including murder and explosions? (iii) And do these acts amount to a violation of article 134a Dutch Criminal Code (DCC)?
Did Maher H. disseminate or have in store texts and pictures that incite to commit a terrorist offence?

Specific legal rules and provisions

Articles 57, 83a, 83b, 96, 132, 134a, 288a and 289 of the DCC.

Common article 3 of the Geneva Conventions.

Articles 10 and 17 of the European Convention on Human Rights.

Court's holding and analysis

The applicable law

The Court first concluded that a NIAC was present in Syria and that members of organised armed groups – in contrast to members of governmental forces – are not allowed to use force. Hence, they do not have immunity from prosecution and can be prosecuted for participating in hostilities. Moreover, the Court opined, referring to the Court of Justice of the European Union’s (CJEU) 2014 judgement in the case Liberation Tigers of Tamil Eelam (LTTE) v Council of the European Union and an older 2004 judgement from the Dutch Supreme Court, that the applicability of IHL during a NIAC does not necessarily prevent the application of another legal system. Hence, during an armed conflict, different systems of law are applicable, including Dutch Criminal Law and its provisions that regulate terrorist offences (para. 3).

The substance of the case

Charge 1

The first charge against Maher H. was subdivided and analysed in three separate categories: (i) conspiring to commit murder and/or manslaughter with terrorist intent , (ii) preparing to commit murder and/or manslaughter and (iii) creating the opportunity or acquiring means, information, knowledge and/or skills to commit multiple terrorist offences, including murder and explosions (para 2.).

(i) – Conspiring to commit murder and/or manslaughter with terrorist intent

The Court commenced by stating that a conspiracy entails the making of an agreement to commit an offence. It concluded that the file did not contain enough evidence to find that Maher H. had participated in a conspiracy (para. 4.5.1).

(ii) – Preparing to commit murder and/or manslaughter with terrorist intent

a. Participation in the armed conflict

The Court held that Maher H. did not only aim at taking part in the armed conflict in Syria, but that he actually carried out that aim. This was evidenced by:

Texts with his mother which showed he participated in an armed attack;
Visits to websites where he searched for information about the purchase of outdoor wear, the jihad, terrorism and related subjects. According to the Court, this was sufficient to prove that he supported the jihadi state of mind and worshipped martyrdom;
Chat messages from 28-30 June 2013 which showed that the defendant wanted to go to Syria in order to participate in the armed conflict because of his religious convictions;
He obtained information about travelling to Syria from someone in the combat zone and who is a supporter of ISIS; and
He actually travelled to Syria. His excuse, namely that he went there to provide humanitarian assistance, was not considered to be credible as he did not want to mention which organisation he worked for. Additionally, he said he was staying around Bab al Hawa, a place in which jihadi fighters were already active. There was no information available about any aid work undertaken there and, to the contrary, there was only information about bomb attacks (para. 4.5.2).

b. Intent to commit murder and/or manslaughter

From the combination of the previously stated acts and his state of mind, the Court deduced that Maher H. intended to prepare to commit murder and manslaughter (para. 4.5.2).

c. Terrorist intent

The main question to be answered here was if the preparation to commit murder and manslaughter had been done with terrorist intent. This latter element is defined in article 83a DCC to mean “the intention of causing fear in the population or a part of the population of a country, or unlawfully compelling a public authority or international organisation to act or to refrain from certain acts or to tolerate certain acts, or of seriously disrupting or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.” According to the Court, it was certain that Maher H. committed preparatory acts that aimed to commit murder and manslaughter in the context of the Syrian jihad. The initial protests against Assad developed into a civil war in which jihadi groups started to play an increasingly important role. Their goal was to overthrow Assad’s regime and to establish a pure Islamic society, which amounts to:

Unlawfully compelling the Syrian government to act or to refrain from certain acts or to tolerate certain acts;
Destroying Syria’s fundamental political structure; and
Causing fear in the population or a part of the population of Syria.

The Court concluded that all of this information must have been very clear to Maher before he actually travelled to the country to join a terrorist group and to contribute to the violent jihad. Hence, Maher H. prepared to commit murder and manslaughter with terrorist intent as prohibited by article 83a DCC (para. 4.5.2).

(iii) - creating the opportunity or acquiring means, information, knowledge and/or skills to commit multiple terrorist offences, including murder and explosions

From the available evidence, the Court held that it has been sufficiently proven the defendant created the opportunity and acquired the means and information to commit murder or manslaughter with terrorist intent. However, the Court thought there was a lack of evidence to prove he had acquired knowledge or skills to achieve this goal (para. 4.5.3).

Charge 2 – Disseminating or having in store to disseminate inciting material

The Court analysed whether Maher H. disseminated or had in store to disseminate inciting texts, images or documents based on his specific acts (para. 4.8.2):

In chat messages with one of his friends, the defendant sent links to two articles which the Court found to be undeniably inciting. These articles came from the site www.dewarereligie.nl and were named “Jihad in Syria is obligatory for every Muslim” and “Council of verdicts of Azhar University: Jihad in Syria individual obligation”. The Court, however, came to the conclusion that Maher only sent these links to one person and that it was not clear that his intention was to disseminate these articles in the sense of article 132 DCC (para 4.8.1). This article is aimed at protecting the public order (para. 4.8.2).

The Court considered a number of other items and materials. Although the police found inciting songs on his laptop, there was no evidence he disseminated them or that he was planning to do so (para. 4.8.2). The same reasoning was relied upon with regards to certain pictures that were found on his phone. There was also no evidence he had disseminated or attempted to disseminate them at any given time (para. 4.8.2). Regarding the poster or flag that had been found in Maher H.’s home, the Court held that this was obviously not an item he could have disseminated (para. 4.8.2).

Nonetheless, the Court held that the defendant had in fact disseminated certain videos, pictures and a document. As mentioned above, the Court found that:

On several occasions during the period between 13 and 22 April 2014, he had sent videos and photos, which were calls to participate in the jihad, to several of his contacts on WhatsApp. On one occasion, he also sent a link to a website enabling people to go to Syria (ikwilnaarSyrië.nl);
On 12 August 2013, during his stay in Syria, the defendant replaced his profile picture on Facebook with a picture of him holding a kalashnikov; and
When the defendant came back to the Netherlands, he changed his Facebook cover picture and profile picture multiple times to replace them with an Islamic caliphate and an Al-Qaida flag (para. 4.1).

According to the Court, these items had an undeniably inciting nature because they represented – at least indirectly – a call to commit terrorist offences. The Court added that it did not matter that the documents he posted or shared came from a public source, and were thus already public, as further dissemination ought to also be considered an offence. The Court dismissed the defence’s argument based on the freedom of speech under article 10 ECHR and said it was limited by article 17 of the same convention (prohibition of abuse of rights). Article 10 cannot provide shelter for people inciting to terrorism or disseminating inciting texts (para. 4.8.2).

Criminality of the acts

The last question to be addressed by the Court was whether the acts detailed in Charge 1 (iii), namely creating the opportunity or acquire means, information, knowledge and/or skills to commit terrorist offences, amounted to a violation of article 134a DCC. The Court answered that question in the negative as it held that, from the preparatory work of parliament, it seemed that the article did not aim to regulate behaviour that has no link with terrorist training. On top of that, it would also lead to the acts that constitute preparing to commit murder and/or manslaughter to be punishable twice – by articles 288a, 289 and 96 para. 2 DCC as well as by article 134a DCC. This would also be a problem as the articles contain differing maximum terms of imprisonment, of respectively ten and eight years (para. 6).

In conclusion, the Court held that Maher H. was not guilty of conspiring to commit a terrorist offense. However, he did prepare to commit murder and manslaughter with terrorist intent, created the opportunity and acquire the means and information to commit murder or manslaughter with terrorist intent and disseminated inciting materials (para 10). He was sentenced to three years’ of imprisonment.

Further analysis

C. Paulussen and E. Entenmann, ‘National Responses in Select Western European Countries to the Foreign Fighter Phenomenon’, in: A. de Guttry, F. Capone and C. Paulussen, Foreign Fighters under International Law and Beyond, T.M.C. Asser Press/Springer Verlag, 2016, p. 414.

M. Zwanenburg, ‘Foreign Terrorist Fighters in Syria: Challenges of the “Sending” State’, International Law Studies, Volume 92 (2016), p. 209.