Commentary: Syrian asylum-seeker charged with terrorism acquitted in Dutch case

On 11 March, the district court of Rotterdam reached a verdict in the case against a Syrian man who had been arrested in June 2020 in the asylum reception centre in Balk in the north of the Netherlands.

It’s an interesting case, for a number of reasons. First of all, because the public prosecutor at the eleventh hour changed a plea for a three-year sentence into a plea for an acquittal, after hearing the arguments of the defence. The court agreed and the man was acquitted – but I will get back to this below.

Furthermore, it’s interesting that the case came to light through his asylum case, as the verdict shows. The man arrived in the Netherlands in December 2018. In March 2016, the Dutch immigration service introduced a standard screening of open source information on asylum applicants, in response to the stark increase in the number of asylum applications from 2015 and concerns about possible involvement in international crimes and terrorism of asylum applicants from Syria. This is the first criminal case that resulted from this open source ‘screening’ where a verdict is reached (and it’s an acquittal).

The screening showed he had two Facebook accounts, according to the verdict. The status of one of those mentioned on 1 February 2019 that the account holder was a former soldier of the organization Ahrar al Sham (with a link to its website). Confronted by the police with the photos that were on this account, the man confirmed it was him, that the photos were taken in Syria and that he had posted them online. He took part in a vigilante group on a number of occasions, although he claimed this was in 2013 and thus some two years before the photos were posted on Facebook, when he was no longer in Syria. On some of the photos on his two accounts, the man is seen in military fatigue, armed, and carrying ammunition. Another photo shows a flag of Ahrar al Sham. However, while the man stated he took part in the vigilante to defend strategic posts in his village, he denied that he was a member of Ahrar al Sham.

Despite his own assertions, the court assumes that the man was a member of a vigilante group that was organized by or for the purposes of Ahrar al Sham, and he was aware of that connection. So, why did the court acquit him of membership of a terrorist organisation? It did conclude that Ahrar al Sham was a terrorist organization, because the organization aimed to overthrow the incumbent regime through targeted violence, also against civilians. However, the man’s taking part in the vigilante, by keeping watch, should not be seen as participation in a terrorist organization, because the man took part in the vigilante to protect his family and village against the terror of the Assad regime. There is also no evidence that he fired a single shot or participated in active violence, nor that he supported the ideology of Ahrar al Sham.

In other words, there is no evidence of criminal participation in a terrorist group, that is, a contribution to the achievement of a terrorist intent. In that sense, the court concludes, a local soldier who is active in a vigilante in an area under control of a terrorist organization is different from a foreign fighter who travels abroad to join a terrorist organisation, because someone like that by definition strengthens the ranks of a terrorist organisation and adheres to its ideology. Ahrar al Sham facilitated the vigilante in protecting the village against terror from the regime, and was also seen by the local population as playing that role. The man did not contribute to the terrorist intent of Ahrar al Sham by protecting his own ‘hearth and home’ against regime terror, the court concludes.

Especially the comparison that the court draws with foreign fighters to make its point on contribution to terrorist intent is interesting. Arguably, you can extend it to wives of foreign fighters who travelled to Syria but against whom there is no evidence of participation in active violence or support of the ideology. Yet, many of them have been convicted for participation in a terrorist organisation. Unlike those women, this man actually carried weapons and took part in a vigilante facilitated by a terrorist organisation. This raises the question where and how the cut-off line of membership should be drawn.

Finally, it will be interesting to see what this means for the man’s asylum case. The question is whether his participation in a vigilante results in the commission of war crimes or other international crimes. If the immigration service concludes that there are still ‘serious reasons for considering’ he committed such crimes – a far lower standard than the criminal standard of proof – he would be excluded from an asylum status based on Article 1F Refugee Convention. The court may have concluded that the man was not a member of a terrorist organisation, but that does not mean that he could not have been implicated in war crimes, at least that there are enough indications of such involvement to meet the lower ‘serious reasons’ standard. At the same time, if there was evidence of involvement in war crimes, the prosecutor would have likely brought charges. As noted above, the criminal case does not show evidence of the use of active violence by the man. It would therefore be quite a stretch if the immigration service would now still conclude that ‘serious reasons’ exist. If the immigration service would still make this argument, the reasoning of the court can arguably be extended to say that he was involved in legitimate resistance. Exclusion from asylum on the basis of Article 1F therefore seems unlikely.

But the verdict from the Rotterdam district court also notes the man stated to the police that he lied to the immigration service that he had returned to Syria from Turkey in 2015. He claimed he thought stating he’d returned to Syria would benefit his asylum claim. In principle, evidence of lies and inconsistent statements in the asylum procedure would be enough reason to deny asylum. Here, however, the court argues that in fact it was not a lie, because the man was indeed in Syria in 2015, as the photos on his social media show. The statement that he returned to Syria then indeed seems to strengthen his asylum claim.

Should he still be denied asylum in the Netherlands, he currently can most likely not be sent back to Syria. The fact that he carried a Turkish identity card from 2014 on him suggests he might be entitled to legal residence there, or in Greece, where he also resided before returning to Syria. But given that he has been in Syria in between, there is also a chance that he will end up in a legal limbo in the Netherlands, meaning that he is denied legal residence but can at the same time not be expelled.

As a first criminal case resulting from the increased efforts from the immigration service to identify perpetrators of international crimes, this case once again raises the question whether all extra investments in screening asylum seekers actually pay off. Furthermore, the case brings together two recent trends in universal jurisdiction prosecutions: the use of social media evidence, and charging membership of a terrorist organisation. Both were seen as promising, because they gave a better perspective of prosecuting perpetrators when crime scenes are distant and inaccessible. This case, however, shows that when it comes to others than foreign fighters, it is questionable whether evidence from social media is actually useful unless it presents clear evidence of a crime (such as the war crime of outrage upon personal dignity). In any case, it shows that photos of someone in a military outfit and carrying arms are no guarantee for success in universal jurisdiction cases.

Maarten Bolhuis