Hof Den Haag, 06-12-2022, nr. 22/00128321.v

To facilitate the readability of the judgment, a list of abbreviations used is provided below.

FSA Free Syrian Army

ICC International Criminal Court

ICTY International Criminal Tribunal for the Former Yugoslavia

IS Islamic State

ISIS Islamic State in Iraq and Syria

CA 3 Common Article 3 of the Geneva Conventions

SCM Syrian Centre for Media and Freedom of Expression

CC Criminal Code

CCP Code of Criminal Procedure

UN United Nations

WIM Dutch International Crimes Act

This judgment was rendered as a result of the examination at the hearing in the first instance and the examination at the hearing in the appeal proceedings of this Court of Appeal.

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.

In the first instance, the Public Prosecution Service was declared inadmissible in the prosecution with regard to part E of the charges under Count 2. Furthermore, with regard to the charges under Counts 1 and 2, with regard to parts A to D, the accused was sentenced to a term of imprisonment of six years, with credit for the time spent in pre-trial detention.

An appeal was lodged against the decision on behalf of the accused and by the Public Prosecutor.

The accused - after adjustment of the indictment at the hearing in the first instance – has been charged with the following:

1.

at one (or more) point(s) in time in or around the period from 1 March 2015 up to and including 27 April 2015, in or near Al-Ziyarah (Syria) and/or Hama (Syria), or at least somewhere (else) in Syria, either alone or jointly and in conjunction with (an)other person(s),

in the event of a non-international armed conflict within the territory of Syria, contrary to the provisions of Common Article 3 of the Geneva Conventions of 12 August 1949,

of one or more person(s) who were then not (or no longer) taking part in the hostilities directly, namely one or more civilian(s) and/or personnel of armed forces who had laid down their weapons and/or one or more person(s) who were placed hors de combat by sickness and/or wounds and/or detention, and/or any other cause,

assaulted his/their personal dignity (and/or) (in particular) treated him/them in a humiliating and/or degrading manner,

because he, the accused and/or his co-perpetrator(s), while the aforementioned (deceased) person(s) were lying on the ground,

- stood and/or posed next to the aforementioned (deceased) person(s) and/or

- called the aforementioned (deceased) person(s) 'dogs' and/or 'carcasses of Al-Assad' and/or sang songs, and/or

- exhibited the aforementioned (deceased) person(s) and/or

- placed his foot on the body of the aforementioned (deceased) person(s) and/or

- kicked the body of the aforementioned (deceased) person(s) with his foot and/or

- spat on the body/bodies of the aforementioned (deceased) person(s) and/or

- had himself/herself filmed with one or more of the aforementioned (deceased) person(s) during the above action(s) and/or

- subsequently posted this video on social media, namely YouTube, and thereby (thus) distributed it and/or made it public;

2.

at one (or more) point(s) in time in or around the period from 1 March 2015 up to and including 1 July 2017, in or near Al-Ziyarah (Syria) and/or Hama (Syria), or at least somewhere (else) in Syria,

either alone or jointly and in conjunction with (an)other person(s), participated in an organisation such as Ahrar Al-Sham, or in any case a jihadi combat group associated with the aforementioned organisation, or at least (an) organisation advocating the armed jihad struggle, whose intent it was 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 Article 157 Criminal Code) (to be) committed with terrorist intent (within the meaning of Article 176a Criminal Code) and/or

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

C. murder (to be) committed 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 to commit the aforementioned offences (within the meaning of Article(s) 176a and/or 289a and/or 96, paragraph 2) and/or

E. 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) (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).

In its closing speech, the Public Prosecution Service adopted the position that there is jurisdiction for the participation in an organisation whose aim it is to commit offences with terrorist intent, charged to the accused under Count 2 of the indictment, with regard to part E, for which part the District Court had declared the Public Prosecution Service inadmissible in the prosecution. For the main charge, the Public Prosecution Service believes that there is jurisdiction on the basis of Article 2 of the International Convention for the Suppression of Terrorist Bombings and, for a lesser included charge, on the basis of the report ‘Bron wapenwetgeving Syrië', dated 25 October 2018, added to the file on appeal.

The defence counsel, in response to the report ‘Bron wapenwetgeving Syrië' dated 25 October 2018 and added to the file by the Public Prosecution Service, did not raise any defence with regard to the existence of jurisdiction.

The Court of Appeal is of the opinion that the Court of Appeal has jurisdiction, including with regard to Count 2, part E, of the indictment.

The Court of Appeal considers the following in this respect.

Article 8c CC reads - as far as relevant here - as follows:

Dutch criminal law is applicable to any alien who is guilty outside the Netherlands of an offence punishable by a term of imprisonment of at least eight years according to the legal description, if this alien is in the Netherlands and:

a. (...), or

b. extradition for this offence is not possible due to the lack of a treaty-based relationship, insofar as the offence is punishable by the law of the country where it was committed.

The accused is in the Netherlands as an alien. He has been charged under Count 2 with being guilty in Syria of participating in an organisation whose intent it is to commit terrorist offences within the meaning of Article 140a CC. This offence is punishable by a maximum term of imprisonment of 15 years.

Due to the lack of a treaty-based relationship with Syria – where the offence was allegedly committed and whose nationality the accused holds - the Court of Appeal assumes that the accused, who is currently in the Netherlands as an alien, cannot be extradited to Syria.

The charges under Count 2, part E are considered an offence under the Weapons and Ammunition Act and are punishable in Syria. Indeed, it transpires from the report of expert Jolen ‘Bron wapenwetgeving Syrië' of 25 October 2018 that Syria has strict firearms legislation, prohibiting the possession of automatic firearms and prohibiting persons under the age of 25 from possessing a firearm. Thus, the requirements of Article 8c under b CC have been met and, for this reason alone, Dutch criminal law applies to this part of the charges under Count 2.

The Public Prosecution Service is therefore admissible to prosecute the accused (also) for part E of the charges under Count 2.

The advocate general has requested that the Public Prosecution Service be declared admissible in the prosecution of the accused for part E of the charges under Count 2. The Advocate General has further requested that the decision appealed against be set aside and that the accused be sentenced to a term of imprisonment of eight years, with credit for the time spent in pre-trial detention, with regard to Counts 1 and 2 of the indictment.

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

In the following, the Court of Appeal will first establish the facts, with the evidence listed in footnotes. Endnotes refer to literature and case law, or provide a further explanation or definition of a word or concept.

8. Establishment of facts1.

Under Count 1, the accused is charged - in brief – with being guilty of committing the war crime of outrages upon personal dignity, in particular humiliating and degrading treatment. Article 6 WIM reads – insofar 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 first assess whether a non-international armed conflict exists within the meaning of CA 3.71.Furthermore, an assessment is needed as to whether the victims are persons enjoying protection under CA 3 and whether the accused had knowledge of this status. An assessment will then be made as to whether the accused's conduct constitutes outrages upon personal dignity of the victims. Finally, there must be sufficient connection between the established conduct and the armed conflict (nexus). Here again, it is important that the accused had knowledge of the factual circumstances that had led to the existence of the conflict.

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 ICC and the Elements of Crimes drawn up on the basis of Article 9 of the Statute of the ICC, and guiding rulings by international tribunals, such as the ICTY, in view of the international character of the offence charged.72.

Non-international armed conflict

Legal framework

International humanitarian law applies when there is an armed conflict in 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 conflict differ in parts. A key distinction is that for the determination of a non-international armed conflict, there are requirements as to the intensity of the armed conflict.

Over the years, the ICTY has elaborated on the concept of 'non-international armed conflict' in its case law and developed criteria for assessing whether it exists. For example, the intensity of the conflict needs to be of the level of protracted armed violence and the armed groups involved need be sufficiently organised.73.

Factors that may be relevant in determining the intensity of a conflict include the number, the duration, and the intensity of the 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 fighting; the number of casualties; the extent of the material damage; and the number of refugees from the combat zones. The involvement of the UN Security Council can also be an indication of the intensity of the conflict.74.

Inter alia 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 (e.g. a ceasefire or a peace agreement).75.A state is presumed to have armed forces that meet these organisational requirements.76.

Determining whether a non-international armed conflict exists is to a large extent a factual assessment that depends on the circumstances of the case.77.It must be established that the accused was aware of the factual circumstances constituting the armed conflict.78.

Assessment by the Court of Appeal

In previous case law, the Court of Appeal already established that a non-international armed conflict existed between Syrian government forces and various organised armed groups in Syria from 2012 up to and including 31 December 2015 - thus also during the period of the charges under Count 1.79.

This involved Ahrar al-Sham as one of the belligerent parties. The Court of Appeal deems Ahrar al-Sham sufficiently organised to classify as an organised armed group, as is evident from what has been set out under 8.2. For instance, during the period to which the indictment relates, Ahrar al-Sham had inter alia a clear command structure, had territorial control, possessed weapons, carried out military operations alone or in conjunction with allies, and participated in peace negotiations. Thus, the organisational requirement was also met.

Since the period to which the indictment relates a non-international armed conflict existed, the Court of Appeal is of the opinion that international humanitarian law - in particular CA 3 and the rules of customary international law - apply.

Based on the accused's own statement, the Court of Appeal further establishes that he had knowledge of the armed conflict in Syria.

Protected persons

Legal framework

International humanitarian law determines inter alia which persons are protected at the time of international and non-international conflicts.

CA 3 defines them as persons who do not (or no longer) participate directly in the hostilities. This refers to civilians, but also includes personnel of armed forces who have laid down their weapons and person who were placed hors de combat by sickness, wounds, detention, or any other cause.80.The ICTY further determined in the Boškoski and Tarčulovski case that the following must be established:

‘[T]he perpetrator of a Common Article 3 crime knew or should have been aware that the victim was taking no active part in the hostilities when the crime was committed.’81.

The ICC's Elements of Crimes provide that the victim need not be personally aware of the conduct and deceased persons can also be victims of this crime.82.

By contrast, the accused needs to have been aware of the factual circumstances that form the basis of the aforementioned (protected) status.83.

Assessment by the Court of Appeal

Given the specific conduct included in the indictment, Count 1 relates to what can be seen in video 1.

The Public Prosecution Service has argued that it is evident that, at the time the offences were committed, none of the victims - all deceased – were participating directly in the hostilities and that they were thus protected persons within the meaning of CA 3. The defence counsel has argued that deceased persons cannot be regarded as persons within the meaning of Article 6 of the WIM and as such do not enjoy protection within the meaning of CA 3. The Court of Appeal has ruled as follows.

CA 3 protects anyone who does not or no longer actively participates in hostilities related to the armed conflict. This stipulation is also part of customary international law. In practice, this means that civilians, combatants who have laid down their weapons or combatants who are hors de combat, e.g. because they have been captured or are sick or wounded, enjoy protection.

In the present case, the Court of Appeal finds that, in view of the clothing and equipment of the persons involved visible in video 1, the references to and expressions of joy with regard to the victims by those present, and the general context in which they all find themselves, it is sufficiently plausible that the deceased persons were combatants, belonging to a (different) party within the conflict. That the latter, also referred to as ‘the bodies of Al-Assad's dead’ in the video, were already hors of combat at the time of the conduct to which the indictment relates and thus no longer actively participating in hostilities is not in dispute. Who killed them is irrelevant here - indeed, the act charged under 1 took place after the victims’ deaths.

Unlike the defence counsel, however, the Court of Appeal finds that deceased persons do enjoy protection within the meaning of CA 3, despite this not being specifically mentioned as an example in CA 3. The protected interest - the dignity of the individual - belongs to all those who cannot be excluded from protection on the basis of direct participation in hostilities.84.Here, it is of importance not to lose sight of the raison d'être of the protection - respect for human dignity – just as the ICTY rules in Furundžija.85.Indeed, the aim is to protect the individual from assaults on his personal dignity regardless of whether such assault arises from an unlawful attack on the body or from humiliating and impairing a person's honour, self-respect or mental well-being.86.The Court of Appeal fails to see that such personal dignity can no longer exist once a person is deceased.

The deceased victims were therefore among those persons protected by CA 3 and customary humanitarian law.87.

Outrages on personal dignity

Legal framework

The prohibition of outrages on personal dignity, by (in particular) degrading and humiliating treatment, as charged under 1, is also enshrined in CA 3. This prohibition has been reaffirmed in the Additional Protocols and is considered to be valid customary international law. However, neither the Geneva Conventions nor the Additional Protocols define outrages upon personal dignity.88.

With regard to outrages upon personal dignity, the ICTY formulated the following definition in the Kunarac case:

‘The accused intentionally committed or participated in an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity.’89.

In other words, the outrage may involve an intentional act but also an omission that has caused severe humiliation or otherwise a serious outrage upon human dignity. This assessment should consider subjective criteria, such as the victim's vulnerability,90.but also objective criteria related to the severity of the act.91.

The ICC's Elements of Crimesconsider the relevant aspects of the victim's cultural background.92.As a result, conduct that, for example, is degrading to someone of a particular nationality, culture, or religion, while not necessarily so to others, also falls within the scope of the concept of outrages upon personal dignity.93.It is a case-by-case assessment.94.

As with cruel or inhuman treatment, outrages upon personal dignity may consist of a single isolated act but may also result from a combination or accumulation of different acts which, taken individually, would not qualify as cruel or inhuman treatment. The Court of Appeal adopts what was determined by the ICTY in the Aleksovski case:

‘The seriousness of an act and its consequences may arise either from the nature of the act per se or from the repetition of an act or from a combination of different acts which, taken individually, would not constitute a crime within the meaning of Article 3 of the Statute. The form, severity and duration of the violence, the intensity and duration of the physical or mental suffering, shall serve as a basis for assessing whether crimes were committed.’95.

As already established, the humiliation must be severe, but it is not a requirement that the outrage have lasting consequences.96.A fleeting act of misconduct may also be serious.97.Nor is special intent required, as is the case with torture.98.

The Court of Appeal only cited those elements of outrage upon personal dignity by humiliating and degrading treatment from case law that are relevant to the assessment of what the accused has been charged with in the present case. This is not an exhaustive enumeration.

Assessment by the Court of Appeal

The defence counsel has disputed the argument that the seriousness of the acts is sufficient to constitute - especially towards deceased persons - degrading or humiliating treatment affecting personal dignity. The Public Prosecution Service has argued that the acts - certainly when considered in combination with one another - were of such a nature as to constitute outrages upon personal dignity. In this regard, the Court of Appeal has ruled as follows.

Insofar as relevant here, video 1 shows that the government soldiers killed are surrounded by fighters of Ahrar al-Sham. They shout slogans, chant and comment on their own success and the defeat of the government soldiers in the battle of Al-Ghab. The soldiers killed are reviled and insulted. For a moment, one of the fighters puts his foot on one of the bodies. The accused moves his leg towards one of the bodies, and two persons spit in the direction of the bodies.

These acts by the fighters are extremely distasteful and demonstrate a disrespectful attitude towards the deceased soldiers. This does not necessarily mean that there has been an ‘outrage upon personal dignity, in particular humiliating and degrading treatment’ within the meaning of Article 6, paragraph 6 under c of the WIM. The bar for that is higher. The Court of Appeal will elucidate this point.

Despite the deceased enjoying protection under CA 3, they cannot be said to be suffering severely physically or mentally. Furthermore, the video shows that the bodies and their uniforms remain virtually untouched. They appear to be shown as they were found. They are indeed depicted but not (and in contrast to in an earlier case that the Court of Appeal ruled on99.) displayed as trophies. The Court of Appeal further has considered the fact that the actions of the fighters summarised above last only a few minutes. The foot being placed on a body, the leg being moved, and the spitting take place once and twice respectively and always within a brief moment. One has to play the video several times to notice these actions. The fighters do not pay specific attention to this. Nor does the person filming. The emphasis is on celebrating victory at the expense of the deceased soldiers. All this detracts to some extent from the gravity of the fighters' behaviour.

Finally, the Court of Appeal considers that the interests of surviving relatives may also play a role in the question of whether an outrage upon personal dignity has taken place. In the current case, the file provides no information on this aspect; no indication as to whether the soldiers were recognised, or otherwise revealing anything about their identity or possible relatives. Therefore, the Court of Appeal cannot further consider the interests of surviving relatives in this case.

The conclusion is that the acts described are disrespectful, but in this case do not constitute ‘outrages upon personal dignity’, as explained against the background of inter alia authoritative statements by the ICTY.

Conclusion

In view of the above, the Court of Appeal does not deem the charge under 1 to have been legally and convincingly proven and will acquit the accused thereof.

Under these circumstances, the Court of Appeal has excluded any discussion as to the requirement of nexus.

The defence counsel disputed the fact that the accused belonged to Ahrar al-Sham and contested the terrorist intent of this organisation. She further argued that the accused did not engage in any supporting conduct, and in any case had had no intention to participate in a terrorist organisation.

In the following, the Court of Appeal will first discuss the terrorist intent, then assess whether the accused participated in it and whether acts of support on the part of the accused existed, and finally address the required intent.

Terrorist intent

Legal framework

In Article 83a CC, terrorist intent is defined as the intent to instil serious fear in a country’s entire population or a specific group thereof, or to unlawfully force a government or international organisation to do, not do or to tolerate something, or to seriously disrupt or destroy the fundamental political, constitutional, economic, or social structures of a country or an international organisation.

The offence under Article 140a CC is not about the actual commission of terrorist offences but about the 'intent' to commit those offences. For that intent, the organisation's prime short-term objective may also suffice. It is not required that the commission of terrorist offences be the organisation's main raison d'être.

For intent to be proven, inter alia significance can be given to offences that have already been committed within the framework of the organisation, to the more sustained or structured nature of the cooperation - as may be evidenced by the mutual division of work or the mutual coordination of activities among participants within the organisation with a view to achieving the organisation's common purpose - and, more generally, to the planned or systematic nature of the activities of participants carried out for this purpose within the organisation.

In previous cases, this Court of Appeal has classified Ahrar al-Sham as a terrorist organisation.100.The Court of Appeal sees no reason to go back on this judgment and will explain why in the following. The conclusively evidenced period in those cases differs from the present one; therefore, the focus in the following will be on the period after 31 December 2014.

Assessment of the Court of Appeal

Ahrar al-Sham’s intent

Ahrar al-Sham’s intent can be inferred inter alia from the statements of its leader and the offences already committed within the framework of this organisation.

Ideology and objective Based on the findings made by the Court of Appeal above, Ahrar al-Sham can be called a radical Islamist movement, aimed at overthrowing Bashar al-Assad's regime in order to create an ‘Islamic state’ based on the sharia. After 2013, the sectarian discourse was toned down, but at the same time it was not renounced, and defensive sectarianism persisted.

Armed struggle was the primary means for Ahrar al-Sham to achieve its goals. In so doing, Ahrar al-Sham continued to cooperate intensively with terrorist organisation Jabhat al-Nusra and its successors until 2017.

Offences committed

Ahrar al-Sham has perpetrated (war) crimes. It can - contrary to what the counsel has argued - be held jointly responsible for the massacre in Latakia in August 2013, in which many Alawite civilians were slaughtered.

In addition, Ahrar al-Sham can be held responsible for taking civilians hostage, such as from 2013 until July 2016 in Douma and between March 2015 and February 2016 in Idlib. The hostages received little food, no medical care, and no access to sunlight. Until February 2017, there were human rights violations on the part of the entire set of armed groups that had control in Aleppo, one of which was Ahrar al-Sham.

Finally, Ahrar al-Sham was involved in besieging towns and villages from 2012 up to and including 2016, putting pressure on the inhabitants of a town and denying medical and humanitarian aid. Artillery was used in those sieges and rockets were fired at the Shiite enclaves. It was Ahrar al-Sham that threatened to retaliate against civilians in case the regime continued to attack civilians in Idlib. That the siege may sometimes (as in Fuaa and Kefraya) have been motivated by the reality of the conflict rather than by ideological, sectarian considerations, which Verhelle points out (see pp. 11 and 12 in the expert report for Ms Buruma LLM), in no way changes this.

Conclusion with regard to intent

From the above, it transpires that in the conclusively evidenced period, Ahrar al-Sham had a terrorist intent within the meaning of Article 83a CC. The organisation not only had the aim of overthrowing Bashar al-Assad's regime and establish an 'Islamic state', but also of instilling fear in part of the population. To achieve these goals, the organisation committed several of the terrorist offences listed in Article 83 CC and detailed in the indictment, such as murder and manslaughter.

The defence counsel has pointed extensively to - in short - a more moderate course pursued by Ahrar al-Sham after 2013. However, it is clear from the previous findings that, in the conclusively evidenced period, Ahrar al-Sham still wanted to achieve its goals through violence, and to this end collaborated with a terrorist organisation such as Jabhat al-Nusra. For the evidence proving terrorist intent, the Court of Appeal also took into account the offences that were still being committed then and which the Court of Appeal - unlike the defence counsel - does not characterise as merely incidental. This cannot be interpreted otherwise than as partly aimed at instilling fear in the population, especially the Shiite part.

That the aim pursued by Ahrar al-Sham was also to overthrow a regime that was abject in the eyes of many, as argued by the defence, does - if correct - not affect (the unlawfulness of) the intent, since this was also aimed at instilling fear in the population, and was combined with the commission of the aforementioned offences.

The Court of Appeal dismisses the defence.

Participation and acts of support

The defence counsel argued that the accused did not (at least not after November 2015) belong to the alliance and did not perform any participatory actions.

Legal framework

Participation in a criminal organisation whose aim it is to commit terrorist offences within the meaning of Article 140a CC can only exist if the person concerned belongs to the alliance and participates in actions, or supports actions aimed at or directly related to achieving the aim referred to in that article.

A participatory action may consist of the (co-)commission of any offence, but also of aiding and abetting and (thus) the performance of acts that are not punishable in themselves, as long as the aforementioned participation or support can be said to exist.

There is no requirement for the person concerned to be found to have cooperated with or to be familiar with all other persons who are part of the organisation or that the composition of the alliance is always the same. Participation must be assessed in isolation for the person concerned. It is therefore irrelevant, for example, whether other persons did more or played a more important role than the person concerned.

Finally, for participation, it is sufficient that the person concerned be generally aware (in the sense of unconditional intent) that the organisation’s objective was to commit terrorist offences. The person concerned does not need to have knowledge of one or more concrete offences intended by the organisation.

Assessment by the Court of Appeal

Participatory actions

In video 1 discussed earlier from Liwa' al-Adiyat as part of Ahrar al-Sham, the accused, looking into the lens, armed and in uniform, reported on the latest conquests in the battle of Al-Ghab. He did so in firmly religious terms. The bodies on the ground were referred to as the ‘dogs of Assad’, arrested and then killed by ‘the lions of our lord Muhammad’. The accused and the others speaking in the video spoke condescendingly about the opponents who had been shot dead, and whose Alawite origin is apparently an important factor in this.

Actively fighting alongside Ahrar al-Sham as well as the actions observed in these videos are directly related to the realisation of Ahrar al-Sham's objective, as depicted above. Indeed, the battle of Al-Ghab being waged against the Al-Assad regime, which Ahrar al-Sham sought to overthrow. In addition, given the wording used therein for the victims (dogs and carcasses, three Alawites), the video manifests sectarian-motivated violence.

Thus, the accused made himself de facto available for and actually contributed to the armed struggle. Apparently, the accused himself also felt that he had played an important role in this struggle, partly in view of the role of emir that he ascribed to himself. Moreover, by allowing himself to be filmed in the manner seen in the videos, the accused contributed to spreading the terrorist ideology of the organisation and promoting it. The same applies to his Twitter behaviour on social media.

Knowledge of terrorist intent

The accused generally knew that this organisation's objective was to commit terrorist offences. It is a fact of general knowledge that during the period to which the indictment pertains, but also before that period, jihadi combat groups were systematically committing serious offences on a large scale, terrorising the population living in Syria. Particularly as a fighter, the accused, who was moreover well versed in social media, must have known about this. His comment in the voice message to [witness A] in relation to video 1 (look what we did to the people) illustrates this. The Twitter behaviour described above shows not only that the accused felt an affinity with the organisation, but also that in the conclusively evidenced period he was well informed about the organisation, its members, and its alliances.

If the question whether Ahrar al-Sham was not included as a terrorist organisation on international sanctions lists at that time - to which, incidentally, other criteria apply - and the question whether the accused believed that it was (also) directed against an abject regime should be answered in the affirmative - the Court of Appeal leaves the answer unanswered here - this does not carry sufficient weight when set against the above considerations.

Conclusion

In view of the above, the Court of Appeal is therefore of the opinion that it can be legally and convincingly proven that the accused committed the offences of the charges under Count 2.

Unlike the Public Prosecution Service, the Court of Appeal does not deem it legally and convincingly proven that the accused was still part of Ahrar al-Sham in the period after 10 November 2015, so that he should be acquitted thereof.

The Court of Appeal deems it lawfully and convincingly proven that the accused committed the offence of the charges under Count 2, on the understanding that:

2.

at one (or more) point(s) in time in or around the period from 1 March 2015 up to and including 10 November 2015 1 July 2017, in or near Al-Ziyarah (Syria) and/or Hama (Syria), or at least somewhere (else) in Syria,

either alone or jointly and in conjunction with (an)other person(s), participated in the an organisation such as Ahrar Aal-Sham, or in any case a jihadi combat group associated with the aforementioned organisation, or at least (an) organisation advocating the armed jihad struggle, whose intent it was 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 Article 157 Criminal Code) (to be) committed with terrorist intent (within the meaning of Article 176a Criminal Code) and/or

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

C. murder (to be) committed 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 to commit the aforementioned offences (within the meaning of Article(s) 176a and/or 289a and/or 96, paragraph 2) and/or

E. 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) (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).

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.

The Court of Appeal bases its conviction that the accused has committed the offences of the charges under Count 2 on the facts and circumstances that are included in the evidence and which substantiate the declaration of charges proven.

The defence counsel conditionally requested the examination of the anonymous witnesses from the SCM investigation and witness [witness B], an employee of the SCM, if the Court of Appeal wished to use the recognition by these witnesses in evidence.

The Court of Appeal has not used recognition by said witnesses in evidence, therefore the condition for the request has not been fulfilled, and the request does not need further discussion.

The charges proven under Count 2 constitute:

participation in an organisation whose aim it is to commit terrorist offences.

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

The Court of Appeal has determined the punishment 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.

The accused, born and raised in Syria, joined Ahrar al-Sham there, an organisation whose purpose in the conclusively evidenced period was to commit terrorist offences.

Jihadi groups such as the one in question have committed bloody, terrifying violence and gross human rights violations. They have deaths on their conscience, and their acts of terror have been disruptive to society, have fuelled sectarian strife and have contributed to unbearable suffering and anguish for many.

The evidence used by the Court of Appeal, in particular the description of the images as observed in video 1 and video 2 in which the accused acts - in a prominent manner - shows in particular that the accused played an important role in this jihadi armed struggle.

Participation in an organisation whose aim it is to commit terrorist offences should be firmly deterred. Retribution and general prevention should be paramount in choosing the type and length of punishment to be imposed.

In the Court of Appeal's view, therefore, the response cannot be anything other than an unconditional prison sentence of long duration.

For participation in a terrorist organisation, the Court of Appeal generally uses a term of imprisonment of six years as a starting point. The Court of Appeal arrives at a slightly lower sentence because – together with the District Court - the Court of Appeal is of the opinion that although Ahrar al-Sham is a terrorist organisation, the scale on which it committed offences is less than that of, for example, IS and Jahbat al-Nusra.

In mitigating terms, the Court of Appeal has further taken into account the fact that the accused did not seek out the violence in Syria himself, as did outbound travellers from the Netherlands, but was born and raised in Syria.

The accused does not have Dutch nationality, nor does he have a residence permit in the Netherlands. In view of the charges proven under Count 2, it is not to be expected either that the accused will be able to claim legal residence in the Netherlands in the future. This implies that it is just as unlikely that the accused might be eligible for conditional release. The Court of Appeal has also taken this into account in a mitigating sense when determining the level of punishment.

The Court of Appeal has taken note of an extract pertaining to the accused from the Judicial Records dated 28 September 2022, revealing that the accused has not been previously convicted - in the Netherlands - for committing criminal offences.

The Court of Appeal has established that the reasonable time limit within the meaning of Article 6, paragraph 1 of the ECHR had been violated - both in the first instance and on appeal.

The starting point in this case, in which the accused is in pre-trial detention in connection with the offences charged, has to be that the hearing should be concluded with a final judgment within 16 months after the reasonable time limit has commenced.

In the first instance, the accused was taken into custody on 22 October 2019, at which point the prosecution commenced, and the District Court delivered final judgment on 21 April 2021. The reasonable time limit for hearing the case in the first instance was thus violated by two months.

On appeal, the reasonable time limit has been violated by three months, since an appeal was filed on behalf of the accused on 4 May 2021 and the Court of Appeal has delivered final judgment on 6 December 2022.

In view of these violations of time limits, the Court of Appeal is of the opinion that instead of the envisaged term of imprisonment of five years and eight months, with credit for the time served in pre-trial detention, a wholly unconditional term of imprisonment of five years and four months, with credit for the time served in pre-trial detention, constitutes an appropriate and due response.

Enforcement of the imposed prison sentence will take place entirely within the prison facility, until such time as the convicted person becomes eligible for participation in a pre-release programme within the meaning of Article 4 Custodial Institutions Framework Act, or until the arrangements for conditional release, within the meaning of Article 6:2:10 CCP, come into play.

The Court of Appeal has taken into account Article 140a of the Criminal Code, as it applies or applied in law.

The Court of Appeal:

Declares the Public Prosecution Service admissible in the prosecution of the accused with regard to part E of the charges under Count 2.

Sets aside the decision appealed against and pronounces judgment anew:

Declares not proven that the accused committed the charges under Count 1 and acquits the accused thereof.

Declares it, as considered above, proven that the accused has committed the charges under Count 2.

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

Declares the charges proven under Count 2 punishable, qualifies this as stated above and declares the accused criminally liable.

Sentences the accused to a term of imprisonment of 5 (five) years and 4 (four) months.

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 L.C. van Walree LLM,

D.M. Thierry LLM and B. Stapert LLM, in the presence of M.J.J. van den Broek LLM and S. Patel, Court Clerks.

It was pronounced at the public hearing of the Court of Appeal on 6 December 2022.

B. Stapert LLM and S. Patel are unable to sign this judgment.