The Netherlands’ Criminal Justice Response to Foreign Fighters and its Consistency with the Rule of Law and Human Rights
摘要
This Chapter argues that the Dutch legal response to foreign fighters has posed considerable challenges to the rule of law and human rights. The highly preventive character of this response, with intervention at the earliest stages of criminal acts long before actual harm is done, fits poorly with what Schmid has identified as the ‘Dutch approachDutch approach’ to counter-terrorism i.e. moderate pragmatism with respect for the rule of law. The Chapter analyses the legislative framework under which foreign fighters have been brought to justice in the Netherlands, including the many ancillary and inchoate offences that apply to individuals who assist, recruit, or finance foreign fighters. In this context, it examines how international legal obligations to criminalise certain actions as terrorist offences, in particular those derived from EU law, have trickled down to the Dutch legal order. A controversial feature of the Dutch legal response is the mass use of trials in absentiaTrials in absentia against those foreign fighters who find themselves abroad, posing significant challenges to the right to a fair trialRight to a fair trial as well as to the fundamental rule of law principles of equality before the law and fairness in the application of the lawFairness in the application of the law. Other key features of the Dutch legal response to foreign fighters that are investigated further in this Chapter include repatriation and the right to return, the prosecution of foreign fighters for international crimesInternational crimes in domestic courts, the role of exclusionary clauses, and the interplay between counter-terrorism law and international humanitarian lawInternational humanitarian law.