Hof Den Haag, 26-01-2021, nr. 2200392619.vertaling

Cause list number: 22-003926-19

Public Prosecutor’s office no: 09-748003-18 and 09-748003-19

Date of judgment: 26 January 2021

JUDGMENT AFTER TRIAL

joint bench for criminal proceedings

rendered in the appeal against the decision of the District Court of The Hague of 23 July 2019 in the criminal case against the accused:

born in [place of birth] on [day of birth] 1994,

currently detained at PI Vught, Terrorist Wing, in Vught.

Examination of the case

This judgment was rendered as a result of the examination at the hearings in the first instance and the examination at the hearing in the appeal proceedings of this Court of Appeal on 27 January 2020 (pre-trial), 7 October 2020 (substantive), 23 November 2020 (substantive) and 12 January 2021 (substantive).

The Court of Appeal has taken cognisance of the request of the Advocate General and of that which has been put forward by and on behalf of the accused.

Table of contents

I Procedure p. 2

II Admissibility of the appeal p. 2

III Charges p. 2

IV Admissibility of the Public Prosecution Service p. 6

V Jurisdiction p. 13

VI Declaration of charges proven p. 23

VII Further evidentiary considerations p. 26

VIII Grounds for the penalty to be imposed p. 48

IX Judgment p. 51

I Procedure

In the first instance, the accused was acquitted of the charges under counts 1 and 2 in the case bearing Public Prosecutor’s office number 09-748003-19 and sentenced to a term of imprisonment of seven years and six months, with credit for pre-trial detention, in connection with the cumulative/alternative charges under count 1 and those under 2 in the case bearing Public Prosecutor’s office number 09-748003-18.

On behalf of the accused, an appeal was lodged against the decision.

II Admissibility of the accused in the appeal

In the first instance, the accused was acquitted of the charges under counts 1 and 2 in the case with Public Prosecutor’s office number 09-748003-19. The appeal has been lodged on behalf of the accused without limitation and therefore also directed against the decisions of acquittal made in the first instance. In view of the provisions of Article 404, paragraph 5 of the Code of Criminal Procedure, the accused cannot appeal against these decisions. Therefore, the Court of Appeal will declare the accused's appeal inadmissible, insofar as it is directed against the acquittal of the charges under counts 1 and 2 of the decision appealed against in the case with Public Prosecutor’s office number 09-748003-19.

III Charges

The accused is - insofar as subjected to the substantive assessment of the Court of Appeal and after amendment of the description of the charges on the basis of Article 314a of the Code of Criminal Procedure and amendment of the charges at the hearing in the first instance - charged with having:

Case with Public Prosecutor’s office number 09-748003-18:

1.

at one or more point(s) in time in the period from 01 August 2014 to 01 November 2016, in one or more location(s) in Syria and/or Iraq and/or Turkey and/or the Netherlands,

jointly and in conjunction with (an)other person(s), if not alone, participated in a (terrorist) organisation such as the Islamic State (hereinafter IS), or at least (an) Organisation which advocates the armed Jihad struggle, which Organisation had and/or has the intent to commit terrorist offences, namely

A. arson and/or causing an explosion, this constituting a general danger to property and/or danger of grievous bodily harm and/or danger to the life of another person, and/or this act resulting in someone's death (within the meaning of Art. 157 Criminal Code) (to be) committed with terrorist intent (within the meaning of Article 176a Criminal Code) and/or

B. manslaughter with terrorist intent (within the meaning of Article 288a of the Criminal Code) and/or

C. murder with terrorist intent (within the meaning of Article 289a in conjunction with Article 83 of the Criminal Code) and/or

D. the conspiracy and/or deliberate preparing of and/or abetting to commit the aforementioned offences (within the meaning of Articles 176a and/or 288a and/or 289a and/or 96 paragraph 2 of the Criminal Code) and/or

E. having in one’s possession one or more weapons and/or ammunition in categories II and/or III (within the meaning of Article 26 paragraph 1 of the Weapons and Ammunition Act) (to be) committed with terrorist intent and/or with the intent to prepare or facilitate a terrorist offence (within the meaning of Article 55, paragraph 1 and/or paragraph 5 of the Weapons and Ammunition Act)

and/or

at one or more time(s) in the period from 1 August 2014 up to and including 1 November 2016, in one or more location(s) in Syria and/or Iraq and/or Turkey and/or the Netherlands,

jointly and in conjunction with (an) other person(s), if not alone,

with the intent, in the preparation and/or promotion of the offence(s) to be committed (several times):

- arson and/or causing an explosion, this constituting a general danger to property and/or danger of grievous bodily harm and/or danger to the life of another person, and/or this act resulting in someone's death (to be) committed with terrorist intent (within the meaning of Article 157 in conjunction with Article 176a of the Criminal Code) and/or

- manslaughter with terrorist intent (within the meaning of Article 288a of the Criminal Code) and/or

- murder with terrorist intent (within the meaning of Article 289 in conjunction with Article 83 of the Criminal Code)

- has attempted to induce another person to commit, to have committed or to participate in, to assist in or to provide the opportunity, means or information to commit the offence and/or

- has provided himself or other persons with the opportunity, means and/or information to commit the offence, and/or

- has had in her possession items of which she knew that they were intended for the commission of the offence

she/they, the accused, and/or her/their co-perpetrator(s)

A. having adopted the radical extremist ideology of the armed Jihad struggle with terrorist intent, waged by the (terrorist) Organisation such as the Islamic State (hereinafter IS) or Islamic State of Iraq and Shaam (ISIS) or Islamic State of Iraq and the Levant (ISIL) or Al-Qaeda (hereinafter AQ) or Ha'yat Tahrir al-Sham (HTS) or Jabhat Fateh al-Sham (both previously Jabhat al-Nusra, JaN), or at least any jihadi combat group affiliated with the aforementioned Organisation(s), or at least any organisation which advocates the armed Jihad struggle, and/or

B. having obtained information about travelling to and/or staying in the combat area in Syria and/or Iraq, and/or

C. having made the trip to Syria and/or Iraq in order to go to the combat area, or at least to an area controlled by terrorist organisation IS(IS/IL) or Al-Qaeda or Jabhat al-Nusra, and/or stayed (for some time) in said (combat) area in Syria and/or Iraq and/or

D. having joined one or more co-perpetrator(s) and/or IS(IS/IL) and/or Al-Qaeda and/or Jabhat al-Nusra fighters, or at least one or more person(s) affiliated with (a) terrorist organisation(s) which advocate(s) the armed Jihad struggle, or at least one or more person(s) who (also) participated in a terrorist organisation that advocates the armed Jihad struggle and/or

E. having taken part in and/or contributed to the armed Jihad struggle in Syria waged by (terrorist) organisation IS(IS/IL) and/or Al-Qaeda and/or Jabhat al-Nusra, or at least terrorist organisations affiliated with IS and/or Al-Qaeda, or at least (a) terrorist organisation that advocates the armed Jihad struggle and/or

F. having used and/or carried and/or possessed (fire)arms in Syria,

in which armed jihadi struggle the acts of murder and/or manslaughter and/or arson and/or causing explosions are committed, on each occasion with terrorist intent;

2.

at one point in time in or around the period from 1 October 2014 up to and including 19 July 2015, in Abu Kamal (Syria) and/or en route from Mosul (Iraq) to Raqqa (Syria), or at least (elsewhere) in Iraq or Syria, amidst a non-international armed conflict on the territory of Syria, in violation of the provisions of Common Article 3 of the Geneva Conventions of 12 August 1949,

committed outrages upon his personal dignity (and/or) (in particular) treated in a humiliating and/or degrading manner a person who, at the time, did not take (or no longer took) part directly in the hostilities, namely a civilian and/or armed forces personnel who had laid down their weapons and/or a person who had been taken out of action due to illness and/or wounds and/or imprisonment and/or any other cause,

because he, the accused,

- posed (smiling) next to the aforementioned (deceased) person while that person had been crucified and/or tied to a wooden cross and/or

- had himself photographed with the aforementioned (deceased) person while that person had been crucified and/or tied to a wooden cross and/or

- subsequently posted this photo on social media, namely Facebook, and in so doing, distributed it and/or made it public.

IV Admissibility of the Public Prosecution Service

The defence argues that the Public Prosecution Service should be declared inadmissible in the prosecution of the accused because the accused should not be prosecuted twice for the same offence. The defence puts forward several arguments for this, which will be discussed below.

The Court of Appeal assumes the following established facts:

The Court of Appeal finds - following the positions of the Advocate General and the defence - that the same offence is concerned within the meaning of Article 68 of the Criminal Code (hereinafter: CC) for which the conviction in the Turkish judgment was upheld and the charge in this case of participation in an organisation whose intent it is to commit terrorist offences.

European Convention on the Transfer of Proceedings in Criminal Matters.

The counsel for the accused relies primarily on the provisions of Articles 30, 31, 35 and 36 of the European Convention on the Transfer of Proceedings in Criminal Matters (hereinafter: ECTPCM) and contends that

Both the Netherlands and Turkey are parties to this convention. The Court finds that the case file offers no evidence of any request from Turkey to the Netherlands based on this convention, nor any request from the Netherlands to Turkey. There is no evidence that documents from the aforementioned Turkish criminal case are part of the case file, other than the decision of 17 May 2018 and the 'declaration of res judicata', both submitted by counsel.

The Court of Appeal deduces from this that it is impossible to ascertain the existence of any judicial cooperation between the Netherlands and Turkey concerning the transfer of criminal proceedings based on this convention. The Court of appeal notes that the ECTPCM does not oblige to transfer criminal proceedings, but only creates a competence of the authority to do so. Therefore, the defences based on this convention are inadequate. As a result, this convention does not preclude the conclusion that the situation in which no reasonably acting prosecutor could have decided to prosecute has not arisen.

The Court of Appeal dismisses the appeal to the ECTPCM in its entirety.

Article 68 CC

Legal framework

Article 68 CC, insofar as relevant, includes the following:

1st acquittal or discharge from prosecution;

2nd conviction, if sentence imposed, followed by full execution, pardon or prescription of the sentence.

(…)

The Court of Appeal has established before that the judgment of the Turkish court concerning the conviction for the participation in a terrorist organisation is irrevocable and that this conviction deals with the same offence as the offence that is included in the indictment in this case.

The Court of Appeal notes that the accused was sentenced in Turkey to a term of imprisonment of six years and three months, i.e. 75 months. The accused spent time in pre-trial detention in Turkey from 2 November 2016 to 17 May 2018. Of the sentence imposed in Turkey, the accused has thus served 18 months and 15 days in Turkey.

- Pardon/remission?

In its decision of 17 May 2018, the aforementioned court in Kilis considered, inter alia, that ‘Taking into consideration the nature of the offence with which the accused persons have been charged, the evidence available, the length of time in detention in relation to the sentence imposed, the accused persons are to be RELEASED and that an official report on their release is to be sent to the Public Prosecutor if there are no other offences for which they are in custody or have been convicted;’

The counsel deduces from this sentence that the Turkish court has remitted the remaining custodial sentence of the accused and that, according, there is a pardon, so that the remaining condition for the applicability of Article 68 CC has also been fulfilled. The counsel points out that explicit reference is made to the circumstances and the strength of the evidence.

The Advocate General disputes that it can be deduced from that sentence that the Turkish court has granted a pardon with regard to the remaining sentence.

The Court of Appeal establishes on the basis of the text of this passage that the court has decided to release the accused. This is not in dispute.

There is no objective and verifiable information other than this passage in the judgment about the reason for the release.

The Court of Appeal stresses that this sentence does not refer to the Turkish legal regulations concerning the enforcement of sentences and security measures, as discussed during the hearing, which inter alia provide for supervision of the behaviour of the convicted person and create conditions for reintegration into society during the period for which the accused is granted early release.

The Court of Appeal also finds that the text of this passage does not mention remission (or any similar wording) of the substantial sentence yet to be served, while the court has previously sentenced the accused in the extensively substantiated judgment to a prison sentence of considerable duration and explicitly accounts for mitigating and attenuating circumstances.

Thus, the Court of Appeal draws the conclusion that a reasonable interpretation of this sentence, viewed against the background of the decision as a whole and what has otherwise transpired, does not lead to the interpretation advocated by the counsel that there has been a remission of the sentence or a pardon by the Turkish court.

The defence is dismissed.

- Sentence carried out in full?

The counsel argued on various grounds that the accused had indeed served the entire sentence imposed in Turkey and for that purpose submitted legal opinions from the Turkish lawyers [name of lawyer 1] and [name of lawyer 2].

Insofar as the counsel argues on the basis of these opinions that the length of the pre-trial detention spent in Turkey should be added to the length of the pre-trial detention spent in the Netherlands when answering the question as to whether the sentence has been served in full within the meaning of the provisions of Article 68, paragraph 2 CC, the Court of Appeal considers the following.

Pursuant to established case law, the duration of the pre-trial detention spent in the Netherlands may not be added to the duration of the pre-trial detention spent in Turkey when answering the question as to whether the provisions of Art. 68, paragraph 2 CC have been met (HR 4.2.1969, NJ 1970, 325 with commentary from Enschedé and HR 26.5.2009, NJ 2009/348).

Given the fact that the accused spent a period of 18 months and 15 days of the 75-month sentence imposed by the Turkish court in pre-trial detention in Turkey, the provision in Art. 68, paragraph 2 CC that the sentence imposed must be followed by full execution of that sentence has not been complied with.

Insofar as the counsel argues that the accused has served the entire sentence in Turkey in view of the Turkish regulation on conditional release that applies in this case, this defence is rejected on the ground that this has not become evident from the proceedings during the hearing.

The Court of Appeal adds that this also does not follow from the legal opinions of the Turkish lawyers [name of lawyer 1] and [name of lawyer 2], who calculate the actual prison sentence to be served under Turkish law at 44.25 months or 3 years, 8 months, and 10 days respectively.

The court dismisses the defence.

All this does not alter the fact that when determining the level of the sentence, this Court of Appeal takes into account the time that the accused spent in pre-trial detention in Turkey. This will be dealt with further on in the judgment.

Due care and principles of due process

The defence argues that the execution of the remaining part of the sentence could have been taken over by the Public Prosecution Service, if the latter had acted with due care.

Legal framework

Article 3, paragraph 1, of the Enforcement of Criminal Judgments (Transfer) Act (hereinafter: WOTS) reads - as far as relevant here - as follows:

1 A sentence imposed in a foreign state may only be enforced in the Netherlands insofar as:

a. the court decision is enforceable in that state;

Article 7 WOTS reads - (insofar as relevant here)- as follows:

1 A sentence imposed in a foreign state may not be enforced in the Netherlands if the convicted person is prosecuted for the same offence in the Netherlands.

Assessment by the Court of Appeal

The Court of Appeal has established the following facts and circumstances and adds some observations.

The accused was sentenced to imprisonment by the Turkish court in Kilis - as already considered above - on 18 May 2018 and released on the same day. The accused arrived in the Netherlands on 3 July 2018. He was also arrested on that day. The court passed judgment in this case on 23 July 2019. On the same day, an appeal was lodged against this decision on behalf of the accused. It was not until 24 December 2019 that the judgment of the court in Kilis became final.

Until 24 December 2019, the provisions of Articles 3 and 7 of the WOTS, and thereafter Article 7 of the WOTS, prevented the rest of the sentence from being taken over and enforced.

The Public Prosecutor and the Advocate General have also indicated that they will take into account the period spent in pre-trial detention in Turkey when requesting the sentence to be imposed.

The judgment by which the sentence imposed by the Turkish court became irrevocable dates from a much later moment than the prosecution decision by the Dutch Public Prosecution Service and, moreover, the accused is being prosecuted in the Netherlands for the same offence for which he was convicted in Turkey. Under these circumstances the Public Prosecution Service cannot be considered to have acted carelessly in this respect when making the decision to prosecute. Contrary to the argument put forward by counsel, the part of the sentence remaining in Turkey could not be taken over by the Netherlands in view of the provisions of the WOTS.

Viewed in the light of the defence statements and considering what has been considered above, the provisions of Article 4 of the Seventh Protocol of the ECHR do not lead to a different judgement about the due care taken by the Public Prosecution Service.

It is not possible either for the appeal to the so-called Alcohol Ignition Interlock Scheme judgment (HR 3.3.2015, ECLI:NL:HR:2015: 434) to lead to a different conclusion about the due care taken by the Public Prosecution Service. In that case, an irrevocable obligation to participate in the alcohol ignition interlock scheme had been imposed on an accused, while the Public Prosecutor also prosecuted this accused and wanted him to be punished for the same underlying offence.

In this case, the accused was prosecuted and convicted in Turkey, while the sentence imposed there was not fully served and that conviction did not become final until 24 December 2019, long after 3 July 2018 and the decision to proceed with prosecution by the Public Prosecution Service in the Netherlands.

In their charge of participation in an organisation whose intent it is to commit terrorist offences and the other charges, the Public Prosecutor and the Advocate General also took into account the part of the sentence that the accused had served in Turkey.

Viewed against the background of that which has been considered above, the Court of Appeal holds that the members of the Public Prosecution Service did not act contrary to the principles of due process in this respect, because prosecution would be at odds with the ne bis in idem principle.

The defences of counsel are dismissed.

Conclusion

All this leads to the following conclusion. Art 68 CC does not preclude the prosecution of the accused for his alleged conduct of participating in an organisation whose intent it is to commit terrorist offences.

It cannot be assumed either that no reasonably acting prosecutor could have decided to prosecute or that the principles of due process have been violated in the assessment of the prosecution in the light of the ne bis in idem principle.

The Advocate General is therefore admissible in the prosecution of the accused.

V Jurisdiction

In the case with Public Prosecutor’s office number 09-748003-18, the accused is charged under count 2 with acting in violation of the provisions of Common Article 3 of the Geneva Conventions of 12 August 1949, as criminalised in Article 6 of the International Crimes Act (hereinafter: ICA). It is not in dispute that, pursuant to Article 2 of the ICA, this Court of Appeal is competent to take cognisance of these offences. This will be assumed.

The defence contests that the Dutch court has jurisdiction with regard to the offences which the accused is charged with under Public Prosecutor’s office number 09-748003-18 under 1. The Public Prosecution Service argues that there is indeed jurisdiction with regard to those charges. The following only relates to the jurisdiction regarding those facts.

In short, and insofar as relevant at this time, the accused is - under the first and second cumulative/alternative charges - accused of having participated, from 1 August 2014 to 1 November 2016, in a terrorist organisation whose intent it is to commit terrorist offences, as well as of having carried out preparatory acts with the intent to commit terrorist offences in the period from 1 August 2014 to 1 November 2016 in Syria and/or Iraq and/or Turkey and/or the Netherlands.

It is an established fact that the accused also had Dutch nationality during the entire period of the charges.

Furthermore, it is not disputed that Dutch criminal law is applicable in any event, insofar as the accused is charged with criminal offences committed in the Netherlands. This will be assumed.

As of 1 July 2014, Article 4 CC reads, insofar as relevant, as follows:

Dutch criminal law shall apply to anyone who is guilty of:

a. any of the offences described in Articles 92 to 96 (...)

outside the Netherlands;

As of 1 July 2014, Article 6 CC reads as follows:

1. Dutch criminal law shall apply to anyone who is guilty of an offence outside the Netherlands insofar as a treaty or decision of an international legal organisation designated by order in council imposes an obligation to establish jurisdiction over that offence.

2. The order in council, referred to in the first paragraph, shall describe the offences in respect of which the treaties and decisions of international organisations designated in the order by council require the establishment of jurisdiction.

The Decree on International Obligations Regarding Extraterritorial Jurisdiction, which entered into force on 1 July 2014, stipulates, inter alia:

Article 1

For the purposes of this decree, the following definitions shall apply:

(a) the law: the Criminal Code;

(b) a terrorist offence: an offence referred to in Article 83 of the law;

(c) an offence preparing or facilitating a terrorist offence: an offence referred to in Article 83b of the law.

Article 2

1. Dutch criminal law shall apply to any person guilty of: (…)

e. a terrorist offence or of one of the offences described in Articles 115, 117, 117b, 121 up to and including 123, 157, 161, 161bis, 161quater, 161 sexiēns, 162, 162a, 164, 166, 168, 170, 172, 173a, 285, 287, 288, 289, 350, 350a, 351, 352, 354, 385b and 385d of the law, insofar as the offence falls under the descriptions of Article 2 of the Convention for the Suppression of Terrorist Bombings, done at New York on 15 December 1997, and the offence was either committed against a Dutch national, or the accused is in the Netherlands;

(…)

outside the Netherlands.

Article 4

(…)

2. Dutch criminal law shall apply to any Dutch national or foreign national who has a fixed address or abode in the Netherlands and is guilty of a terrorist offence outside the Netherlands or of one of the offences described in Articles 131, paragraph 2, 132, paragraph 3, 134a, 205, paragraph 3, 225, paragraph 3, 311, paragraph 1, under 6º, 312, paragraph 2, under 5º, 317, paragraph 3, in conjunction with 312, paragraph 2, under 5°, and 421 of the law. (…)

Article 2 of the Convention for the Suppression of Terrorist Bombings, done at New York on 15 December 1997 (hereinafter: the Convention) stipulates the following:

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a state or government facility, a public transportation system or an infrastructure facility,

a. with the intent to cause death or serious bodily injury; or

b. with the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

2. Any person also commits an offence if that person attempts to commit an offence within the meaning of paragraph 1.

3. Any person also commits an offence if that person:

a. participates as an accomplice in an offence as set forth in paragraph 1 or 2; or

b. organises or directs others to commit an offence as set forth in paragraph 1 or 2; or

c. in any other way contributes to the commission of one or more offences as set forth in paragraph 1 or 2 by a group of persons acting with a common purpose; such contribution shall be intentional and either be made with the aim of furthering the general criminal activity or purpose of the group in general or be made in the knowledge of the intention of the group to commit the offence or offences concerned.

First cumulative/alternative charge What is meant by a terrorist offence is stipulated in Article 83 CC. In Article 83, sub 3 CC, the criminal provisions of Article 140a CC are also mentioned. Article 140a CC, to which the present charge is tailored, is therefore also a terrorist offence.

Article 2, paragraph 3 under c of the Convention also brings within the scope of this Convention the contribution to the commission of one or more of the offences defined in paragraph 1 - commission of / participation in the discharge or detonation of an explosive or other lethal device - (or an attempt thereto pursuant to paragraph 2) by a group of persons acting with a common purpose under the conditions described therein.

The conduct for which the accused has been indicted includes participation in an organisation whose intent it is to commit terrorist offences, including:

‘A. arson and/or causing an explosion, this constituting a general danger to property and/or danger of grievous bodily harm and/or danger to the life of another person, and/or this act resulting in someone's death (within the meaning of Article 157 Criminal Code) (to be) committed with terrorist intent (within the meaning of Article 176a of the Criminal Code.’

This part of the charge falls within the provisions of Article 2, paragraph 1, in conjunction with Article 2, paragraph 3 under c, of the Convention. Therefore, jurisdiction exists for this part.

Furthermore, the accused is charged with the following under B up to and including D in the indictment:

‘B. manslaughter with terrorist intent (within the meaning of Article 288a of the Criminal Code) and/or

C. murder with terrorist intent (within the meaning of Article 289 in conjunction with Article 83 of the Criminal Code) and/or

D. conspiracy and/or deliberate preparation of and/or abetment of the aforementioned offences (within the meaning of Articles 176b and/or 289a and/or 96, paragraph 2 and/or’

In the Explanatory Memorandum concerning the implementation of the Convention, the following is noted:

‘The Criminal Code comprises a large number of general and specific criminal provisions under which the offences described above - terrorist bombings - can be classified. First of all, the following offences - most of which are specific - are criminalised in Title VII of Book II, which is dedicated to offences that endanger the general security of persons or goods. These are the following offences:

- arson or causing an explosion (Article 157); (...)

- intentional and unlawful destruction of a vessel or aircraft (Article 168); (...)

The offences listed above are subject to severe penalties if they are likely to cause danger to property or life, or if they are likely to cause death and the offence results in someone’s death. (...)Furthermore, some - generic - offences directed against life from Title XIX of Book 2 are mentioned:

- manslaughter (Article 287);

- aggravated manslaughter (Article 288);

- murder (Article 289).’1.

In view of the criminal provisions listed in the Explanatory Memorandum that can give effect to the criminal conduct described in Article 2, paragraph 1, of the Convention in conjunction with Article 2, paragraph 3, under c, of the Convention (insofar as the aim is to commit/participate in 'terrorist bombings'), the opening words to the charges and the conduct charged in sections B up to and including D have jurisdiction under Dutch criminal law. These criminalisations implement the provisions of Article 2 of the Convention.

As of 1 July 2014, the text of the first paragraph of what is now Article 7 of the Criminal Code reads:

1. Dutch criminal law shall apply to any Dutch national who is guilty of an offence perpetrated outside the Netherlands that is considered an offence under Dutch criminal law and which is criminalised by the law of the country where it was committed.

Finally, the accused is charged, under E, with:

‘E. the possession of one or more weapons and/or ammunition in categories II and/or III (within the meaning of Article 26, paragraph 1, of the Weapons and Ammunition Act) committed with terrorist intent and/or with the intent to prepare or facilitate a terrorist offence (within the meaning of Article 55, paragraph 1 and/or paragraph 5 of the Weapons and Ammunition Act)’.

Under Dutch law, this description constitutes one or more offences.

The criminalisations to which this element of the charge refers are not covered by the provisions of Article 2, paragraph 1, of the Convention.

Iraq and Turkey Based on the case file and the deliberations during the court hearing, the Court of Appeal cannot establish whether Iraqi and Turkish legislation criminalises (and possibly criminalised) the conduct with which the accused is charged in the indictments under E. In that respect, the provisions of Article 7 under 1 CC have not been met and therefore there is no jurisdiction based on this provision.

In the present case, jurisdiction for the charge is limited to the opening words of the charge and the part under A up to and including D. There is no jurisdiction for part E of the charge with regard to these aforementioned countries. Therefore, the Public Prosecution Service will, in this regard, be barred from the prosecution of the accused.

Syria

The Dutch-language text of the Syrian Criminal Code submitted by counsel in the first instance (Statutory Order No 148. 22/06/1949) stipulates, inter alia:

Article 216:

Article 217:

Article 218:

The following persons shall be regarded as accomplices to an offence or a misdemeanour:

Article 219:

Article 325:

Article 326:

Article 535:

Intentional manslaughter will result in the death penalty if it is committed in the following circumstances:

Article 573:

Any person who intentionally sets fire to buildings, factories, workshops, warehouses or other residential or non-residential buildings in a town or village, or sets fire to railway vehicles or vehicles transporting one or more persons, shall be punished with hard labour for a term of at least 7 years.

Article 575:

If arson results in the death of a person, the perpetrator shall be sentenced to death in the cases provided for in Articles 573 and 574 and to hard labour in the cases provided for in Articles 575 and 576. The penalties provided for in those Articles shall be increased if a person suffers permanent disability.

The Court of Appeal has been informed ex officio that Article 315, paragraph 1, of the Syrian Criminal Code criminalises the possession of weapons of war (see The Hague Court of Appeal 26.6.2019, ECLI:NL:GHDHA:2019:1676 under 7).

The above leads the Court of Appeal to the conclusion that the charges under E are not only punishable under Dutch law, but also under Syrian law, in particular Articles 315, 325, 326, 535, 573 and 575 of the Criminal Code.

First cumulative/alternative charge

The Court of Appeal has jurisdiction over the first cumulative/alternative charge, with the exception of the part under E concerning the countries of Iraq and Turkey.

Second cumulative/alternative charge

With regard to the second cumulative/alternative charge, the Court of Appeal has jurisdiction based on the provisions in Article 4, opening words and sub-paragraph 1 CC, read in conjunction with Articles 157, 176b, 288a, Article 289 and Article 289a CC.

Conclusion with regard to the entire charge

The Court of Appeal has jurisdiction over the first and second cumulative/alternative charge, with the exception of the first cumulative/alternative charge as regards part E concerning the countries of Iraq and Turkey.

Request of the Advocate General

The Advocate General has requested that the decision appealed against be set aside and that the accused be sentenced in respect of the cumulative/alternative charges under 1 and those under 2 to a term of imprisonment of seven years and six months, with credit for the time served in pre-trial detention. In his request, the Advocate General has taken into account the time that the accused has spent in pre-trial detention in Turkey.

The decision appealed against

The decision appealed against cannot be upheld, because the Court of Appeal does not agree with it.

VI Declaration of charges proven

The Court of Appeal deems it legally and convincingly proven that the accused has committed the offences under 1 cumulative/alternative and 2 in the case with Public Prosecutor’s office number 09-748003-18, on the understanding that

1.

at one or more point(s) in time in the period from 01 August 24 October 2014 to 01 November 3 September 2016, in one or more location(s) in Syria and/or Iraq and/or Turkey and/or the Netherlands,

jointly and in conjunction with (an)other person(s), if not alone, participated in a (terrorist) organisation such as the Islamic State (hereinafter IS), or at least (an) Organisation which advocates the armed Jihad struggle, which organisation had and/or has the intent to commit terrorist offences, namely

A. arson and/or causing an explosion, this constituting a general danger to property and/or danger of grievous bodily harm and/or danger to the life of another person, and/or this act resulting in someone's death (within the meaning of Art. 157 Criminal Code) (to be) committed with terrorist intent (within the meaning of Article 176a Criminal Code) and/or

B. manslaughter with terrorist intent (within the meaning of Article 288a of the Criminal Code) and/or

C. murder with terrorist intent (within the meaning of Article 289a in conjunction with Article 83 of the Criminal Code) and/or

D. the conspiracy and/or deliberate preparing of and/or abetting to commit the aforementioned offences (within the meaning of Articles 176a and/or 288a and/or 289a and/or 96 paragraph 2 of the Criminal Code) and/or

E. having in one’s possession one or more weapons and/or ammunition in categories II and/or III (within the meaning of Article 26 paragraph 1 of the Weapons and Ammunition Act) (to be) committed with terrorist intent and/or with the intent to prepare or facilitate a terrorist offence (within the meaning of Article 55, paragraph 1 and/or paragraph 5 of the Weapons and Ammunition Act)

and/or

at one or more time(s) in the period from 1 August 2014 up to and including 1 November 3 September 2016, in one or more location(s) in Syria and/or Iraq and/or Turkey and/or the Netherlands,

jointly and in conjunction with (an) other person(s), if not alone,

with the intent, in the preparation and/or promotion of the offence(s) to be committed (several times):

- arson and/or causing an explosion, this constituting a general danger to property and/or danger of grievous bodily harm and/or danger to the life of another person, and/or this act resulting in someone's death (to be) committed with terrorist intent (within the meaning of Article 157 in conjunction with Article 176a of the Criminal Code) and/or

- manslaughter with terrorist intent (within the meaning of Article 288a of the Criminal Code) and/or

- murder with terrorist intent (within the meaning of Article 289 in conjunction with Article 83 of the Criminal Code)

- has attempted to induce another person to commit, to have committed or to participate in, to assist in or to provide the opportunity, means or information to commit the offence and/or

- has tried to provided himself or other persons with the opportunity, means and/or information to commit the offence, and/or

- has had in heris possession items of which she knew that they were intended for the commission of the offence

she/they, the accused, and/or her/their co-perpetrator(s)

A. having adopted the radical extremist ideology of the armed Jihad struggle with terrorist intent, waged by the (terrorist) Organisation such as the Islamic State (hereinafter IS) or Islamic State of Iraq and Shaam (ISIS) or Islamic State of Iraq and the Levant (ISIL) or Al-Qaeda (hereinafter AQ) or Ha'yat Tahrir al-Sham (HTS) or Jabhat Fateh al-Sham (both previously Jabhat al-Nusra, JaN), or at least any jihadi combat group affiliated with the aforementioned Organisation(s), or at least any organisation which advocates the armed Jihad struggle, and/or

B. having obtained information about travelling to and/or staying in the combat area in Syria and/or Iraq, and/or

C. having made the trip to Syria and/or Iraq in order to go to the combat area, or at least to an area controlled by terrorist organisation IS(IS/IL) or Al-Qaeda or Jabhat al-Nusra, and/or stayed (for some time) in said (combat) area in Syria and/or Iraq and/or

D. having joined one or more co-perpetrator(s) and/or IS(IS/IL) and/or Al-Qaeda and/or Jabhat al-Nusra fighters, or at least one or more person(s) affiliated with (a) terrorist organisation(s) which advocate(s) the armed Jihad struggle, or at least one or more person(s) who (also) participated in a terrorist organisation that advocates the armed Jihad struggle and/or

E. having taken part in and/or contributed to the armed Jihad struggle in Syria waged by (terrorist) organisation IS(IS/IL) and/or Al-Qaeda and/or Jabhat al-Nusra, or at least terrorist organisations affiliated with IS and/or Al-Qaeda, or at least (a) terrorist organisation that advocates the armed Jihad struggle and/or

F. having used and/or carried and/or possessed (fire)arms in Syria,

in which armed jihadi struggle acts of murder and/or manslaughter and/or arson and/or causing explosions are committed, on each occasion with terrorist intent;

2.

at one point in time in or around the period from 1 October 2014 June 2015 up to and including 19 July 2015, in Abu Kamal (Syria) and/or en route from Mosul (Iraq) to Raqqa (Syria), or at least (elsewhere) in Iraq or Syria, amidst a non-international armed conflict on the territory of Syria, in violation of the provisions of Common Article 3 of the Geneva Conventions of 12 August 1949,

committed outrages upon his personal dignity (and/or) (in particular) treated in a humiliating and/or degrading manner a person who, at the time, did not take (or no longer took) take part directly in the hostilities, namely a civilian and/or armed forces personnel who had laid down their weapons and/or a person who had been taken out of action due to illness and/or wounds and/or imprisonment and/or any other cause,

because he, the accused,

- posed (smiling) next to the aforementioned (deceased) person while that person had been crucified and/or tied to a wooden cross and/or

- had himself photographed with the aforementioned (deceased) person while that person had been crucified and/or tied to a wooden cross and/or

- subsequently posted this photo on social media, namely Facebook, and in so doing, distributed it and/or made it public.

Any additional charges or charges formulated otherwise have not been proven. The accused should be acquitted of these.

Insofar as the indictment contains linguistic and/or writing errors, these have been corrected in the declaration of charges proven. As appears from that which was discussed during the hearing, the defence of the accused was not harmed as a result.

VII Further (evidentiary) considerations

Further (evidentiary) consideration regarding the proven charges under Count 1

Based on the Court of Appeal hearing and the contents of the legal evidence, the Court of Appeal has established the following facts and circumstances.

The accused's mother reported him missing to the police on 26 November 2014. Investigation revealed that he had flown from Cologne to Antalya on 24 October 2014. At the appeal hearing, the accused stated that he had gone directly from Antalya to Syria.

According to an official notice from the Military Intelligence and Security Service (MIVD) dated 4 February 2019, the MIVD received information from the United States Department of Defense. It concerns personal data obtained by the United States - consisting of a payroll - of approximately 40,000 foreign fighters of ISIS2.. On this ISIS payroll, the full name of the accused [name of accused] is stated, with the 'kunya' [kunya name], Dutch nationality and [day of birth] 1994 as the date of birth. The cousin of the accused has stated that ‘[kunya name]’ is the name that the accused used in Syria.

Furthermore, this payroll specifies, under the 'Assignment' heading, a 'Sniper Battalion' with the 'Mu'atah Division'. The payroll further records that this person received a salary for the periods from 7 June to 6 July 2016, 7 July to 4 August 2016 and 5 August to 3 September 2016, whereby the salary was divided into the amounts of '30' and '80'. The mother of the accused stated before the Examining Magistrate that the accused had told her that he received a salary of 30 dollars or 80 dollars. The Court of Appeal has established that this payroll relates to the accused.

On 1 July 2016 - as he also stated during the appeal hearing - the accused called the tip-off line of the Dutch police. In this conversation, the accused said that he had been in the Islamic State for two years and that he wanted to know what the Netherlands had against him.

On the profile photo of the Facebook account of the accused (with the name [Facebook account name]), the accused can be seen with a weapon. In the case file, there are several other photos on which the accused can be seen with weapons and/or in combat dress. At the appeal hearing, the accused stated that he made use of the aforementioned Facebook account, and that photos had been taken of him wearing combat dress and/or with a weapon, during his stay in Syria and Iraq.

The police examined the telephone of [name of person 1], who was suspected of planning to travel to Syria and Iraq to take part in the armed struggle. This showed that he was communicating with [name of person 2] via a chat service. Investigation has shown that this person was the accused. In extensive chat conversations in the period from 11 October 2015 up to and including 7 December 2015, [name of person 2] said inter alia - in essence - that:

- he was with IS in October 2015 and had been affiliated with IS for a year by then;

- that he had been given an assault rifle by the leader of Wilayat Al-Furat province appointed on behalf of IS;

- that he has been in Aleppo and Kobani;

- that Allah azzawadjal (Allah/God the Almighty) had killed someone through his hands and was very happy about that;

- he wants nothing more than to fight at the front;

- that he shot at 'kuffar' during his stay at the front.

- that he has forty bullets in his magazine, that sniping is the most fun, but also the most dangerous;

- that he has been on patrol with the IS police force and that he has helped to interrogate suspects;

- that he will go to Raqqa tomorrow and hand over 'Taskia';

- that he has registered 'istishhadi' and wants to become shaheed in ribat;

- that 'ribat' is the front line, that the beginning is damned difficult when attacking.

- that, in the city, it is difficult to attack because you have many houses there and you have to hit them, but that, in the Sahara, you can easily snipe them;

- that he always made sure with Bashar that if he knew where they were, he threw a grenade;

- that a car drives around him all the time and that he thinks he is going to stop it, it could be that it is driving past to throw a grenade, they are at war and he is in a village where the craziest things happen;

- that he always shoots at windows, because he is afraid of those snipers;

- that he has signed up for the 'little button';

- that, in Ribat, everyone is just in their position and shows that you are there with a grenade or shooting with a mortar.

In this conversation, several of the aforementioned photos were sent as well. At the appeal hearing, the accused stated that he conducted these chats via the Internet with [name of person 1].

The Court of Appeal notes that the following words used can be assigned the following meaning:

Taskia: (tazkiya or tazkiyah): guarantee or certificate for those who want to affiliate themselves with IS.

Istishhadi: (Istishadi): the designation by IS of those who practice martyrdom.

Shaheed: (shahid): martyr.

Mujahid: Islamic fighter.

Ribat: Border control.3.

The father of [name of co-accused] has frequently been in contact with the police about his son's suspected stay in IS territory. During one of these contacts, this father showed a part of a conversation on Facebook Messenger on 13 July (the Court of Appeal understands: 2016) between his son and [name of person 3]. In this conversation, [name of person 3] says that [kunya name of accused] is back from 'riba'. As considered above, [kunya name of accused] is the nickname (kunya) of the accused.

Finally, the case file contains a chat conversation dated 3 September 2016 between [name of person 1] and the accused, in which he says that he has 'crossed over' and is now no longer with ISIS but with another group. At the appeal hearing, the accused stated that it could be true that he had stayed with the Free Syrian Army from about 3 September 2016.

Participation in an organisation whose intent it is to commit terrorist offences

Legal framework

Participation in a criminal organisation whose intent it is to commit terrorist offences within the meaning of Article 140a CC only applies if the person involved belongs to the circle of collaborators and plays a part in or supports acts that are directed toward or are directly related to the realisation of the aim. An act of participation may consist of the (co-)perpetration of any crime, but also of aiding and abetting, and (therefore) the performance of acts that are not punishable in themselves, as long as the aforementioned participation or support can be said to have taken place.For participation it is sufficient that the person involved has general knowledge (in the sense of unconditional intent) of the organisation’s intent to commit (terrorist) offences. No form of intent to commit the offences specifically intended by the organisation is required.

Preparing and promoting terrorist offences

Legal framework The preparatory and promotional acts described in Article 96, paragraph 2 CC are punishable regardless of their result. The requirement is that the perpetrator undertakes the act with the intent to prepare or promote the relevant terrorist offence. Conditional intent to prepare or promote a terrorist offence is not sufficient.

The offence that is being prepared or promoted must be established to the extent that it can be determined whether it concerns an offence whose preparation and promotion is punishable within the meaning of Article 96, paragraph 2 CC. Time, place and manner of execution will therefore have to be established in relatively concrete terms. The preparatory and promotional acts charged can be viewed in relation to each other. Even if isolated acts do not constitute punishable preparations, the combination of all the acts and the accused's ideological beliefs together can lead to the deduction that the accused had the intent to prepare an offence.

Assessment by the Court of Appeal

Participation in an organisation whose intent it is to commit terrorist offences

IS (formerly ISIL or ISIS) was one of the jihadi combat groups in Syria that sought to violently impose a purely Islamic society and/or state based on sharia - fully according to their perception - on the civilian population. In so doing, they intended to destroy the fundamental political structure of Syria within the meaning of Article 83a CC. The offences committed by these combat groups, such as murder, manslaughter, arson, the causing of explosions and the like, were therefore committed with terrorist intent and as such constitute terrorist offences. Participation in the armed struggle in Syria alongside these combat groups therefore always entails the commission of terrorist offences.4.

IS has been listed on the UN and EU terrorist sanctions lists since 30 May and 1 July 2013, respectively, and has been designated as a terrorist organisation in consistent case law5..

Based on the case file and the proceedings during the hearing on appeal and the evidence presented above, the Court of Appeal finds that, shortly after 24 October 2014, the accused travelled to Syria via Turkey. He subsequently joined IS until 3 September 2016, when he switched to the Free Syrian Army. The many chat conversations, the photos in which the accused can be seen (whether or not together with others) in combat dress and/or with guns/weapons, the fact that he has been in places controlled and governed by IS, as well as his mention and his position on the ISIS payroll, do not allow for any other conclusion than that the accused has joined IS and has actually fought. In so doing, he has made an actual contribution to the armed struggle.

The Court of Appeal does not believe the statement made by the accused that the chats conversations and the photos were nothing more than acting cool, especially not in combination with the photos that he sometimes sent along. In view of the above, the Court of Appeal does not find his statement credible either that he had only been a parking attendant or humanitarian aid worker all this time. Moreover, there are no objective data to support this assertion. It is true that during the appeal hearing the accused phonetically mentioned the name of a hospital in Mosul, but the Court of appeal considers this insufficient to substantiate the plausibility of his assertion.

Based on the above, the Court of Appeal finds that the accused has committed acts that have contributed to the realisation of the intent of the terrorist organisation IS that the accused affiliated himself with as a fighter and with which he remained affiliated for more than two years.

In general, the accused knew that this organisation had the intent to commit terrorist offences. It is indeed a fact of general knowledge that, at the time of the charges, but also some time before that period, jihadi combat groups systematically committed serious offences on a large scale, terrorising the population residing in Syria. This cannot have escaped the accused during his stay in Syria.

The Court of Appeal agrees with the District Court that co-perpetration has not been proven legally and convincingly, because the case file does not contain any concrete evidence that the accused acted in close and conscious cooperation with other persons.

Preparation and promotion of terrorist offences

On the basis of the aforementioned evidence, the Court of Appeal also reaches the judgment that the accused is guilty of preparing and promoting terrorist offences in the same period.

The accused travelled to Syria and Iraq, was in the combat area there, and affiliated himself with IS. In his chats, he has shown that he is prepared to commit (suicide) attacks and has had (fire)arms in his possession. He has actually made a contribution to the (Jihad) struggle conducted by IS, for instance by going on patrol with the IS police force and ‘interrogating suspects’.

In so doing, he has tried to provide himself and other people with the opportunity and/or means to commit terrorist offences. Moreover, by having himself registered as a member of a 'sniper' battalion, he provided other persons with intelligence and sought to provide himself with the opportunity to commit terrorist offences. The accused also did this with the intent to prepare or promote the terrorist offences proven.

The Court of Appeal will acquit the accused of parts A and B, since there is no concrete evidence available concerning the adoption of the radical extremist ideas and the pursuit of information about travelling to and/or staying in the combat area in Syria and/or Iraq.

Similar to the District Court, the Court of Appeal does not consider co-perpetration legally and convincingly proven, because the case file does not contain any concrete evidence that the accused acted in close and conscious cooperation with other persons. He will be acquitted of that too.

Further (evidentiary) consideration regarding the charges proven under 2

Legal framework

With reference to the charges as set out in Annex 1 to this judgment, the accused is - in essence - accused of having committed a war crime.

Article 6 International Crimes Act

Article 6 of the International Crimes Act (hereinafter: ICA), which relates to the criminalisation of the commission of war crimes, reads - as far as relevant here - as follows:

1 Any person who, in the event of non-international armed conflict, commits the offence of violating Common Article 3 of the Geneva Conventions, i.e. committing one of the following offences against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause, of one of the following offences:

(...) c. outrages upon personal dignity, in particular humiliating and degrading treatment;(...) shall be punishable by life imprisonment or a temporary term of no more than thirty years or a fine of the sixth category.

The Court of Appeal must - after establishing the facts - assess whether, on the basis thereof, a non-international armed conflict exists within the meaning of Common Article 3 of the Geneva Conventions (hereinafter: CA 3)6., outrages upon personal dignity of a person within the meaning of CA 3 by the accused, who falls under the protection of CA 3, and, finally, whether there is a sufficient connection between the established conduct and the armed conflict (nexus) to be able to speak of a war crime.

For the interpretation of the elements of the criminalisation of war crimes, the Court of Appeal is guided by international law, such as the Statute of the International Criminal Court and the Elements of Crimes drawn up on the basis of Article 9 of the Statute of the Criminal Court, serving as an aid in the interpretation of the offences and guiding rulings by international tribunals, such as the ICTY, in view of the international character of this offence.7.

Non-international armed conflict

International humanitarian law applies when there is an armed conflict on the territory of one of the contracting parties.

A distinction is made between international armed conflicts and non-international armed conflicts. The rules for these two types of conflicts differ in certain respects. An important distinction is that in the case of an international armed conflict, no requirements are made as to the intensity of the armed conflict. This is different when establishing the existence of a non-international armed conflict.

Over the years, the ICTY has elaborated the notion of 'non-international armed conflict' in its jurisprudence and developed criteria for assessing its applicability. Firstly, the intensity of the conflict must have reached the level of protracted armed violence, and secondly, the armed groups involved must be sufficiently organised.8.

Factors that may be relevant in assessing the intensity of a conflict include the number, duration and intensity of individual confrontations; the type of weapons and other military equipment; the amount and calibre of ammunition fired; the number of persons and the type of armed groups participating in the fight; the number of casualties; the extent of material damage; and the number of refugees from the combat areas. The involvement of the UN Security Council can also be an indication of the intensity of the conflict.9.

The following factors are important in determining the degree of organisation of the armed groups: the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of headquarters; the circumstance that the group controls a particular territory; the ability to provide the group with access to weapons and other military equipment, recruitment and military training; the ability to plan, coordinate and conduct military operations, including troop movements and the related logistics; the ability to determine a unified military strategy and the use of military tactics; and the ability to speak with one voice and to negotiate and enter into agreements such as a ceasefire or a peace agreement. This is not an exhaustive list.10.

A state is presumed to have armed forces that meet the requirement of organisation.11.

Determining whether a non-international armed conflict exists is to a large extent a factual assessment that depends on the circumstances of the case.12.

Furthermore, the perpetrator must have knowledge of the existence of the armed conflict.

Outrages upon personal dignity

CA 3 Common Article 3, paragraph 1, opening words and under c of the Geneva Conventions prohibits - insofar as relevant in this case - outrages upon personal dignity, in particular humiliating and degrading treatment, of persons taking no active part in hostilities.

Persons taking no active part in the hostilities International humanitarian law - including CA 3 - stipulates, inter alia, which persons fall under the protection of this legal regime in times of (international and) non-international conflicts.

By persons taking no active part in the hostilities, CA 3 means civilians, but also, inter alia, members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause.13.

The ICC's Elements of Crime states that the victim need not personally be aware of the conduct and that dead persons can also be victims of this crime.14.

The perpetrator must have been aware of the factual circumstances that established the person's protected status.15.

Definition of ‘outrages upon personal dignity’ Neither the Geneva Conventions nor Protocol II additional thereto contains a definition of 'outrages upon personal dignity'. In the case law of the ICTY, it has been considered, inter alia, that it is an act that the accused intentionally committed or participated in, which would generally be regarded as constituting severely degrading or humiliating treatment or would otherwise constitute an outrage upon personal dignity.16.

In assessing whether there is an outrage upon personal dignity, objective criteria relating to the severeness of the conduct must be considered alongside subjective criteria relating to the vulnerability of the victim.17.

The ICC's Elements of Crimes take into account the relevant aspects of the victim's cultural background.18.As a result, acts that are, for example, degrading to someone of a certain nationality, culture or religion, while not necessarily being so to others, also falls within the scope of the concept of outrages upon personal dignity.19.

Nexus There must be a sufficient connection between the conduct and the armed conflict - in (international) case law also called 'nexus'.20.Indeed, the criminalisation of war crimes aims to offer protection against offences that are (closely) related to war. The nexus requirement serves in that context to distinguish war crimes from offences under general law and other international offences such as genocide and crimes against humanity.

In ICTY case law, the interpretation of the concept of nexus has been dealt with in more detail in various rulings. Insofar as relevant to the assessment of nexus in the present case, the Court of Appeal will reproduce the legal framework below.

In ICTY case law, indicative reference points have been mentioned for answering the question whether there is a nexus in the case at hand. This does not alter the fact that the assessment of the existence of a nexus should be made on a case-by-case basis. These reference points are the following, the point of departure being that law governing war crimes shall apply to the entire territory of the parties to the conflict, regardless of where actual fighting is taking place at the time, and shall apply until a peaceful solution has been found. The existence of an armed conflict must at least (i) have played a substantial role in the perpetrator’s decision to commit the offence, (ii) his ability to do so, (iii) the manner in which the offence was committed, or (iv) the purpose for which it was committed. The Court of Appeal interprets these points of departure as being neither 'hard' nor limitative criteria.21.Furthermore, for the assessment of the question whether conduct is sufficiently related to the armed conflict, the court may take into account, inter alia, the following factors: the circumstance that the perpetrator is a fighter; the circumstance that the victim is a non-combatant; the circumstance that the victim belongs to the opposing party; the circumstance that the conduct can be said to serve the ultimate purpose of the military campaign; and the circumstance that the offence was committed as part of or in the context of the performance of the perpetrator's official duties.22.

Criminal liability for war crimes is not limited to the warring parties and those who are in close relation to one of the parties.23.

The perpetrator must have been aware of the factual circumstances that constituted the existence of the armed conflict.24.

Assessment by the Court of Appeal

In order to assess whether the aforementioned charge can be proven legally and convincingly, the Court of Appeal must answer the following questions.

(1) Has there been a non-international armed conflict in Syria and Iraq?

(2) Was the accused aware of the factual circumstances constituting the existence of the armed conflict?

(3) Is the victim protected by international humanitarian law, in particular by CA 3?

(4) Was the accused aware of the facts and circumstances underlying the victim's protected status?

(5) Did the accused commit outrages upon the personal dignity of the victim and/or treat the victim in a humiliating and degrading manner?

(6) Is there a nexus between the challenged conduct of the accused and the aforementioned armed conflict?

Re 1) Is there a non-international armed conflict?

In the following, the Court of Appeal finds that, in the period from 1 January 2012 up to and including 31 December 2015, and therefore also on or around 12 November 2015, there was a non-international armed conflict in Syria between Syrian government forces on the one hand and the fighters of (inter alia) the armed groups ISIL/ISIS and Jabhat al-Nusra (hereinafter: JaN) on the other hand.

For the purpose of substantiating this observation - an explanation of the events in Syria will be given below, insofar as relevant for the abovementioned charges to be declared proven on this point from 2011. In this respect, the Court of Appeal will in particular also discuss the intensity of the conflict and the degree of organisation of the armed groups involved, particularly IS, since this is relevant for the question whether there is a (non-international) armed conflict.

The Court of Appeal hereby mainly bases itself on the expert reports that are part of the criminal file and are completely based on open sources, such as the reports of the Independent International Commission of Inquiry on the Syrian Arab Republic, of the United Nations Human Rights Council, reports by Human Rights Watch and Amnesty International, reports by UNAMI, by the OHCHR, the United Nations Security Council, journalistic sources as well as websites, social media, documents and visual material of jihadi organisations active in Syria.25.

Syria

In the spring of 2011, the uprising in Syria began with protests to force reforms on the regime of President Assad. The regime tried to suppress the calls for reform with brute force, but this did not silence the resistance. After the start of the uprising, the violent reaction to it by President Assad was condemned by the world community. United Nations Secretary General Ban Ki-moon noted in the summer of 2011 that President Assad had lost all legitimacy. Western states urged for his resignation and issued sanctions against his regime. At the end of 2011, the opposition started to react to the violence of the regime with armed resistance. This included reprisals against government forces and the capture of districts in major cities and rural areas from government forces. The Syrian regime took an even tougher line against this. Airstrikes carried out by the Syrian air force caused many civilian casualties. Human rights violations were committed by government forces and paramilitary militias fighting alongside the government, but also by armed opposition fighting the Assad regime, such as IS and JaN. At the beginning of 2013, a full-scale war erupted. The Syrian regime is accused of carrying out chemical attacks in 2013 and 2015, resulting in a large number of casualties. In the last months of 2013 and the first months of 2014, the Syrian regime seems to have stepped up attacks with so-called barrel bombs26.. In the course of 2014 and the first half of 2015, airstrikes and attacks with barrel bombs, by the Syrian regime in various parts of Syria also cost many lives, particularly among civilians. At the same time, the armed groups fighting against the Assad regime were guilty of, inter alia, summary executions, kidnapping, torture of captured government soldiers, members of the pro-Assad militias and persons identified as informants of the Assad regime. IS, JaN and other militant groups are also guilty of having carried out a large number of illegal detentions, torture and executions during this period.

In December 2015, United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA) estimated the number of people fleeing in Syria itself at 6.6 million and the number of people fleeing the country at 4.3 million. 13.5 million residents, the organisation says, are in need of humanitarian assistance. The death toll in November 2015 was around 250,000.

Involvement of jihadi militant groups, in particular IS As the conflict in Syria and Iraq progressed, the influence of jihadi groups in that struggle grew. Their aim was not only to bring down Assad's regime, but also to establish a strict Islamic state on Syrian territory, and possibly in a wider area, where a very strict version of sharia would apply. One of these jihadi groups is a group initially affiliated with Al-Qaeda and previously active in Iraq. The group in question is the Islamic State in Iraq (ISI), also known as Al-Qaeda in Iraq (AQI), which has allegedly had a base in Syria for some time, at the time still supported by the Assad regime. On 11 March 2013, the group claimed an attack that had taken place on 4 March 2013. It allegedly cost the lives of 48 Syrian soldiers and nine Iraqi guardsmen. It was said to be the first act with which ISI confirmed its involvement in the Syrian conflict. ISI, which was led by Abu Bakr al-Baghdadi, renamed itself ISIL in April 2013 to emphasise the expansion of its activities into Syria.

Organisation of IS On 29 June 2014, ISIL proclaimed the Islamic caliphate in the territory that it had conquered in Syria and Iraq, and the organisation was renamed IS, with Abu Bakr al-Baghdadi as its supreme leader. The territory controlled by IS was located within Syria and Iraq in 2014 and 2015. The number of fighters who joined IS in 2014 is estimated to have been between 20,000 and 31,500.

In the first half of 2014, IS is thought to have been organised as follows. The leadership of IS was allegedly divided into several councils. There would be the command council. Then there would be the advisory council whose members were responsible for transmitting orders from Abu Bakr al-Baghdadi to the lower command structures and checking whether these orders were being followed, and deciding on laws and their application. Furthermore, there would be the shariah council that decided on religious matters. Other councils would be the law council, the security council, the military council, the intelligence council, the aid council for fighters who regulated the arrival of foreign fighters to IS and their accommodation, the media council, and the finance department.

After the foundation of the caliphate and the conquest of territory in 2014, IS, it seems, transformed parts of the organisation into ministries or committees, which were also supposed to govern the territory conquered by IS.

At various locations in Syria, there were IS training camps where lessons were given in legal rules and Islamic religious doctrine, and where recruits were also taught fighting techniques and how to handle weapons.

The IS army was made up of, inter alia, special forces, air defence forces, a sniper brigade and an administration.

At the aforementioned point in time, the requirement that the intensity of the conflict correspond to the level of protracted armed violence was clearly met. There were frequent large-scale military operations between the parties involved, using military weapons and vehicles such as tanks and artillery.

The number of fatalities exceeded 250,000 by the end of 2015, and 4.3 million people had fled Syria and Iraq by then. A very significant number of persons were in need of humanitarian assistance at the time, and several towns and villages in Syria and Iraq had been destroyed. A peace plan was also being negotiated; the United Nations Security Council condemned the Syrian regime and the acts of IS.

Conclusion on the degree of organisation of IS On the basis of the above, the Court of Appeal finds that the requirement of sufficient organisation of the armed groups ISIL/IS has also been met. This organisation had military weapons and vehicles, such as tanks and artillery, at its disposal in the abovementioned period, and could carry out large-scale military operations. The organisation also had an organisational structure and even exercised control over a territory. In addition, there were various collaborations with other organisations.

Re 2) The accused must have been aware of the factual circumstances that constituted the existence of the armed conflict.

On the basis of the accused's own statement, the Court of Appeal finds that he had knowledge of the armed conflict in Syria and Iraq.

Re 3) The victim should be protected by international humanitarian law, in particular by CA 3.

It is not in dispute that the person in picture 127.had already died at the time the photos were taken. This means that - regardless of the answer to the question of whether he was seen as an opponent of IS during his lifetime - he enjoyed protection under international humanitarian law.

Therefore, the Court of Appeal finds that the conduct was committed against a person who did not actively take part in the hostilities as stated in the indictment.

Re 4) The accused must have been aware of the facts and circumstances underlying the victim's protected status.

The Court of Appeal finds that the accused was aware of the circumstances that led to the protected status. It appears from the conversation report between the accused and the employee of the Ministry of Foreign Affairs with regard to the person in picture 1, that, at the time when the picture was taken, the accused knew that the man in the orange overall had died, because the accused stated then that the body of the deceased stank because of its decomposition and that he was worried that, on the basis of the picture, he might have thought to have killed the man.28.

Defence

During the appeal hearing, the accused stated that the person from the Ministry of Foreign Affairs who drew up the conversation report did not summarise his remarks accurately and that they concerned other photos that he had allegedly posted on Facebook and/or the Internet but not this photo.

Assessment of the defence by the Court of Appeal

According to the conversation report, the following was noted with regard to what was stated by the accused:

‘He is also worried about a photo he posted on FB. On the way from Mosul to Raqqa, he allegedly took a photo at a bus stop with a crucified man (who, according to him, stank very badly because of the decomposition). At the time, he thought this was cool, but he is afraid that he might be suspected of having done it. He said: they can see through my FB that I was travelling and would not have had time to kill that man.’29.

The Court of Appeal sees no indications that there has been a misunderstanding about which photo the accused spoke of. The Court of Appeal has taken into account the fact that the details about the photo, which the accused has given according to the conversation report, actually correspond to the picture concerned. It does not follow from the conversation report in any way that more than one photo may have been discussed. The Court of Appeal found no other indication in the case file either which might support the reading of the accused. The Court of Appeal dismisses the defence.

Re 5) The accused would need to have outraged upon the personal dignity of the victim and/or treated the victim in a humiliating and degrading manner.

Establishment of the facts The Court of Appeal finds that, between 15 June 2015 and 2 July 2015, in Abu Kamal, Syria, the accused had a photo taken (photo 1) showing him standing next to a deceased person (presumably [name of victim])30.who, dressed in an orange overall, has been hung on a cross.

The accused has acknowledged being in the photo, and he has also been recognised from the photo by his father.

The Court of Appeal finds that the kunya of the accused is [kunya name of accused] in view of a chat conversation of the accused with [name of person 1] (hereinafter: [name of person 1]).31.The accused posted picture 1 on the Facebook account with the name [Facebook account name of accused]. The Court of Appeal bases this finding on the conversation report drawn up by an employee of the Ministry of Foreign Affairs regarding a conversation held with the accused. This report states that the accused stated that he had posted a picture of himself with a crucified man on his Facebook account. The fact that the photo was subsequently shared on Facebook is confirmed by the contents of an official report of findings in which a district police officer from Utrecht states that he had heard from his contact person in relation to the situation with regard to the youngsters in Kanaleneiland that the photo in question was being shared on Facebook, and that the photo had also been shown and sent to him.32.The fact that the accused has distributed the photo is supported by the abovementioned chat conversation with [name of person 1], in which the accused asks whether he still has the 'cruxifixion photo'33.and by an official report of findings by the same community police officer. He states about a key figure who, with reference to, inter alia, picture 1, states that the man in the photo was called [name of accused] and that he was active under the name '[Facebook account name of accused]'. And that the photos shown were also from this Facebook account.34.

Discussion of the defence concerning the photo being taken under duress The Court of Appeal dismisses the defence of the accused that he, against his will and under duress, had a picture taken with the deceased, since this has not become plausible in any way. Indeed, the Court of Appeal finds that this picture shows the accused actively posing. The fact that he is proud of posing appears from his question to [name of person 1] as to whether he still has the photo concerned, because he wants to use it as his profile picture. It was not until the court hearing in the first instance that the accused reported duress for the first time, whereas he had not even mentioned this in his conversation with an employee of the Ministry of Foreign Affairs.

Assessment by the Court of Appeal

Picture 1 shows a deceased and bloodied man in an orange overall hung on a cross by the side of the road. The fact that the deceased has not been buried but is displayed in this way is certainly an outrage upon personal dignity.

The Court of Appeal must assess whether the accused's conduct - namely posing for a photo with the deceased and distributing that photo - constitutes an outrage upon personal dignity.

By posing next to the deceased and by taking a photo (or having it taken), the accused has contributed to the further deepening of the humiliation and/or degradation of the deceased. In so doing, the accused expressed that the body of the deceased should be seen as a trophy and that he was superior to the deceased. This humiliating and/or degrading conduct is of such severity that it is unequivocally considered to be an outrage upon the personal dignity of the deceased person. By subsequently posting the photo on his Facebook account, the accused ensured that a large number of people were given the opportunity to take note of the photo. In so doing, in conjunction with the fact that he himself posed for the photo and had it taken, he further continued the outrage upon the personal dignity of the deceased person.

Re 6) There must be a nexus between the contested conduct of the accused and the aforementioned armed conflict.

Establishment of the facts The Court of Appeal finds that the accused posed, as a member of IS, with the deceased and had a photo taken of himself and the deceased. Subsequently, the accused posted this photo on Facebook and also sent it to someone.

Assessment by the Court of Appeal

In the opinion of the Court of Appeal, there is a nexus between the acts of the accused with regard to photo 1 and the armed conflict in Syria. Posing with the deceased and taking a photo (or having it taken) and subsequently posting it on Facebook and sending it to someone are actions performed within the context of the armed conflict in Syria. The deceased person in photo 1 was killed as an alleged opponent by or on behalf of IS during the armed conflict in Syria and was subsequently exhibited by being attached to a cross. As a member of IS, the accused was in that area and thus had the opportunity to (further) affect the personal dignity of the deceased person in the way that has been established above. The distribution of the photo has contributed to displaying and glorifying the power of IS over the prisoners made.

Argumentation

The Court of Appeal bases its conviction that the accused has committed the proven facts on the facts and circumstances contained in the evidence, which warrant the declaration of charges proven.

In those cases where the law requires an addition to the judgment with the evidence or, insofar as Article 359, paragraph 3, second sentence, of the Code of Criminal Procedure is applied, with a specification thereof, this will be done in an addition that will be attached to this judgment as an annex.

Criminality of the proven facts

The proven facts in the case with Public Prosecutor’s office number 09-748003-18 under 1 constitute:

participation in an organisation whose intent it is to commit terrorist offences

with the intent to commit arson and/or to cause explosions, this constituting a general danger to property and/or danger of serious bodily harm and/or danger to the life of another person, and/or this act resulting in someone's death and/or murder and/or manslaughter, on each occasion to be committed with terrorist intent to prepare and promote, to provide himself and others with the opportunity, means and information to commit the offence and to attempt to do so, and to have in his possession items that he knows to be intended for the commission of the offence.

The proven facts in the case with Public Prosecutor’s office number 09-748003-18 under 2 constitute:

In the case of a non-international armed conflict, the commission of a violation of Common Article 3 of the Geneva Conventions consisting of outrage upon personal dignity, in particular the humiliating and degrading treatment of persons who have been placed ‘hors de combat’ for any other reason.

Criminal liability of the accused

No circumstance has become plausible that might exclude the criminal liability of the accused. The accused is therefore criminally liable.

VIII Grounds for the sentence

The Court of Appeal has determined the sentence to be imposed on the basis of the seriousness of the offences and the circumstances under which they were committed, and on the basis of the personality and the personal circumstances of the accused, as these have appeared from the Court of Appeal hearing.

In so doing, the Court of Appeal has particularly taken the following into account.

In October 2014, the accused travelled to Syria where he became affiliated with IS, a banned jihadi organisation whose intent it is to commit terrorist offences, as a fighter for a period of approximately two years. With those same acts, the accused committed preparatory acts aimed at committing, inter alia, murder and manslaughter with terrorist intent.

Jihadi groups such as IS have been systematically guilty of bloody, horrifying violence and gross human rights violations. They have countless deaths on their conscience and are co-responsible for the appalling destruction of houses, agricultural land and infrastructure. Their acts of terror have disrupted society, fuelled the sectarian strife, and contributed to unbearable suffering and fear for many. Terrorised residents have fled because of this violence and have had to leave everything behind.

At the time when the accused set off to travel abroad, much was known about the serious human rights violations and other wrongdoings committed by IS. Moreover, the caliphate had already been proclaimed on 29 June 2014, a message that spread across the globe. The accused must have been aware of this, but nevertheless he left to travel abroad, for which the Court of Appeal, together with the District Court, seriously blames the accused.

Participation in an organisation whose intent it is to commit terrorist offences should therefore be vigorously countered. Retribution and general prevention must be the main focus when choosing the type and duration of the penalty to be imposed. Therefore, the Court of Appeal is of the opinion that only a long-term unconditional prison sentence can suffice.

During his stay within the caliphate, in Abu Kamal (Syria), while he was in transit from Iraq to Syria, the accused posed next to a man who had been executed by IS and who was hanging on a cross, covered in blood and wearing an orange overall. Subsequently, the accused posted this photo on his Facebook account, so that people could take note of it. The photo was then distributed among a large group of young people in Utrecht. In so doing, he made public these shocking images of the man who had been hung on a cross in a degrading way.

The Court of Appeal is, as is the district court, of the opinion that the only way to respond to the proven facts is with an unconditional prison sentence of considerable length.

In determining the level of the penalty, the level of sentences in cases that are somewhat similar to the present case were taken into consideration. The point of departure for participation in a terrorist organisation and preparatory acts is an unconditional term of imprisonment of six years.

The fact that the accused was apparently part of a sniper battalion is taken into account in the increase of the sentence, and the chats indicate that the accused actually used or threatened to use violence against people during his participation in the armed struggle.

For the war crime of outrage upon the personal dignity of a deceased person, the Court of Appeal, in conformity with the District Court, takes as its point of departure a term of imprisonment of two years and six months.

The Court of Appeal will, as has the District Court, take into account the fact that the accused spent more than 18 months in pre-trial detention in connection with criminal proceedings in Turkey for the same offences for which the accused is being convicted today and will - in accordance with the request of the Advocate General - factor these into the penalty to be imposed hereafter.

The Court of Appeal has taken note of an excerpt dated 28 December 2020 from the Criminal Records Office concerning the accused, which reveals that the accused has previously been irrevocably convicted, albeit some time ago in 2013 and in 2012, of committing other types of criminal offences, but not previously for similar offences.

Furthermore, the Court of Appeal has taken into account the behavioural expert’s report, triple examination, dated 20 May 2019 concerning the accused. The accused has cooperated with the investigation to a limited extent, in that he did not or hardly wanted to discuss the charges. Insofar as relevant, the reporters concluded that the accused has an average level of intelligence. The accused exhibits underdevelopment of mental abilities in the form of a personality disorder with narcissistic and antisocial characteristics. This personality disorder was also present at the time of the offences. Although the reporters did not gain full insight into the personal judgment of the accused and choices made by him prior to and during the period of the charges, they do believe that, in conjunction with the personality disorder, the accused's impulsiveness, suggestibility, neediness and limited empathic capacity have limited him in making judgments and anticipating the consequences of his actions. Therefore, the reporters advise attributing the charges to him to a (somewhat) lesser degree. The psychiatrist suggests a somewhat lesser degree of attribution, because he is of the opinion that situational factors also had a relevant influence, and the accused also made conscious choices. The psychologist suggests a lesser degree of attribution because he is of the opinion that the personality problems played a somewhat more prominent role because narcissistic traits were triggered prior to the choice to travel abroad.

The Court of Appeal adopts, as has the District Court, the conclusions regarding the underdeveloped mental abilities in the sense of a personality disorder. Furthermore, the Court of Appeal assumes, as does the psychiatrist, that the accused can be held accountable for the offences to a slightly reduced degree. Furthermore, the Court of Appeal assumes, just like the psychiatrist, that the accused can be blamed for the facts to a somewhat lesser degree.

The Court of Appeal has, as has the District Court, also taken into account the probation advice dated 1 July 2019 from the Dutch Probation Service regarding the accused. According to the probation service, there are indications that the accused still adheres to the jihadi salafist ideology.

The probation service assesses the risk of recidivism as high. Although the probation service sees only limited possibilities for effecting a positive change in the accused's behaviour, they still recommend imposing special conditions as set out in the report.

The Court of Appeal is - all things considered - of the opinion that a completely unconditional prison sentence of a duration to be specified below is an appropriate and necessary reaction. In view of the duration of this sentence, it is not possible to impose the recommended special conditions.

Applicable legal provisions

The Court of Appeal has taken into account Articles 57, 83, 96, 134a and 140a of the Criminal Code and Article 6 of the International Crimes Act, as they apply or applied in law.

The Court of Appeal:

Declares the accused's appeal inadmissible, insofar as it is directed against the decision with regard to the charges under 1 and 2 in the case with Public Prosecutor’s office number 09-748003-19.

Sets aside the decision appealed against and pronounces judgment anew:

Declares the Public Prosecution Service inadmissible in the prosecution of the accused in respect of part E of the indictment in the case with Public Prosecutor's office number 09-748003-18 under 1 first cumulative/alternative charge, insofar as this relates to Iraq and Turkey.

Declares it, as envisaged above, proven that the accused has committed the charges under 1 cumulative/alternative and 2 of the indictment in the case with Public Prosecutor's office number 09-748003-18.

Declares that any additional charges or charges formulated otherwise than those proven above have not been proven and acquits the accused thereof.

Declares the proven facts under 1 cumulative/alternative and 2 in the case with Public Prosecutor’s office number 09-748003-18 punishable, qualifies this as stated above and declares the accused liable to punishment.

Orders that the time spent by the accused in any form of pre-trial detention within the meaning of Article 27, paragraph 1 of the Criminal Code before the execution of this judgment, shall be deducted when implementing the prison sentence imposed, insofar as that time has not already been deducted from another sentence.

This judgment was delivered by Th.W.H.E. Schmitz LLM,

M.I. Veldt-Foglia LLM, and L.C. van Walree LLM, in the presence of M.J.J. van den Broek LLM, Court Clerk.

It was pronounced at the public hearing of the Court of Appeal on 26 January 2021.

M.I. Veldt-Foglia LLM is unable to sign this judgment.