Counterterrorism measures in the Netherlands in the First Decade of the 21st Century

Transcription

1 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century On the cause, application, assessment, and amendment of counterterrorism measures in the Netherlands Counterterrorism measures in the Netherlands in the First Decade of the 21st Century 1

2 Contents 2 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century

3 Foreword 6 Management Summary 8 Reader s Guide 18 1 Introduction and Background Pechtold Motion and the Establishment of the 21 Suyver Committee 1.2 Recommendations from the Suyver Committee, 22 Reactions from the government, and Instruction to the National Coordinator for Counterterrorism 2 Evaluation Method Introduction Framework of the Evaluation: Ten Key Questions Evaluation Method: A Combination of Approaches Evaluation of Counterterrorism measures 36 in the International Perspective 2.5 Item Requiring Improvement 37 3 Generic Picture of Measures: Counterterrorism 38 measures in the Netherlands in the First Decade of the 21st Century 3.1 Cause of the Measures Response to attacks Comprehensive approach Types of measures Application of the Measures Added value of new measures Cooperation is essential Assessment of the Measures Cause for the evaluations Nature of the evaluations Court decisions Attention for fundamental rights in the assessment 57 of measures 3.4 Amendments to the Measures Findings on Cohesion among the Cause, Application, 64 Assessment, and Application of the Measures 3.6 Item Requiring Improvement 66 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century 3

4 4 Specific Picture of Measures: Application of the 68 Framework of Analysis to Five Specific Measures 4.1 Introduction Sanctions regimes to counter terrorism Cause and application Assessment and amendment Observations on counterterrorism sanctions regimes Counterterrorism Information Box Cause and application Assessment and amendment Observations on the CT Information Box System of special units Cause and application Assessment and amendment Observations on the person-specific approach The person-specific approach Cause and application Assessment and amendment Observations on the National Security 94 (Administrative Measures) Bill 4.6 National Security (Administrative Measures) Bill Cause and application Assessment and amendment Observations on the National Security 99 (Administrative Measures) Bill 4.7 Findings on the basis of five specific measures Item requiring improvement Application of Measures in Specific Cases Design of the case-based analysis Cooperating among different chains Local - National Accumulation Items Requiring Improvement Counterterrorism measures in the Netherlands in the First Decade of the 21st Century

5 6 Trends and Findings Work plan item 1: The recommendations from 113 the Suyver Committee Effectiveness Legitimacy Cohesion Work plan item 2: Items requiring improvement Work plan item 3: Intentions for a follow-up plan Items Requiring Improvement 118 Concluding Observations 120 Annexes 122 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century 5

6 Foreword 6 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century

7 You have before you the result of the evaluation of the counterterrorism measures that were taken in the Netherlands in the past decade. As antiterrorism policy involves responding to ever changing threat assessments and taking new measures, any questions around legitimacy, proportionality, and effectiveness are strongly related to the number of cases at the time. As the number of cases in the Netherlands is - fortunately - very limited, the key question is: when necessary, do we have the appropriate means, and will things go right? In this context, it concerns, in particular, cohesion among the measures as regards availability and application. If we relate that question to the past ten years, it may be reformulated as are we better off than ten years ago? The results of our own evaluation, which you now have before you, were consequently used to answer the question of whether things go right when necessary. In answering this question, we not only look back, but also ahead. As the Suyver Committee rightly observed: the proof of the pudding is in the eating. Counterterrorism must, in each separate case, be proportional and effective, while making use of legitimate means. The question of whether the set of measures available to the agencies involved in counterterrorism is proportional, as a whole, in relation to the aim of counterterrorism, is a political question rather than a question to be evaluated. As the aim of terrorism is to create fear and feelings of insecurity, the task of answering the question of how much fear, risk and uncertainty is acceptable, is a social and political matter. The Suyver Committee also concluded that - after the attacks of 11 September it was quite understandable, from the national and international feeling of insecurity, that the government took all possible measures to counter terrorism. It is obvious that this feeling of insecurity is not a constant factor. Against this background, it is consequently also of great importance that the debate on the proportionality of counterterrorism measures as a whole is conducted on an ongoing basis. Presenting this evaluation to your House constitutes a contribution to this debate. For the same reason, such an exercise must also be repeated periodically, in order to make new assessments, and to learn from them. This power of assessing and learning from the set of measures must not only be used when it comes to the development of measures, but also when it comes to the application of these measures. This may be achieved by exercise and self-reflection. This is what the professionals are involved in, on a daily basis, in order to ensure the security and freedom of our society. The Minister of Security and Justice, Counterterrorism measures in the Netherlands in the First Decade of the 21st Century 7

8 Management Summary 8 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century

9 Conclusions 1. The attacks of 11 September 2001 and the subsequent threat of global terrorism have had major consequences for the whole world in many areas. Terrorism was one of the greatest threats to our internal and external security in the first decade of the new millennium. It is therefore encouraging that the number of radicals in our country who are prepared to use violence to achieve political or religious goals has gradually decreased. 2. This evaluation a self-reflection on the part of the government takes a look at the measures that have been taken to counter terrorism. With regard to the counterterrorism measures that are available, the conclusion of this evaluation is that probable cause existed whenever a measure was introduced or amended, and that the measures were developed and applied in a consistent manner. To a significant extent, this is due to the fact that the Netherlands has a strong wish to learn how this phenomenon, which is relatively new in this country, can be tackled in the best way, i.e. with the emphasis on preventing terrorism by means of taking proportionate, effective action and making use of legitimate means. Based on the large number of studies and evaluations conducted in the past nine years, and the way in which the lessons learned have been adopted, it is evident that there is an ability to learn in the area of counterterrorism. Both central and local authorities and executive agencies have learned from various individual evaluations and legal opinions, and have applied these lessons. 3. Counterterrorism measures in the Netherlands are characterised by the fact that they are tailor-made, in terms of both their development and their application. There are still only a limited number of specific measures that were taken exclusively in the context of counterterrorism. The system of measures has been specifically tailored to the goal that needs to be achieved, giving due consideration to the safeguarding of fundamental rights. It should be noted in this context that such consideration should be given on an ongoing basis to individual measures as well as to the system of measures as a whole. 4. In the context of this evaluation, researchers from Radboud University Nijmegen looked at six counterterrorism measures specifically from the perspective of fundamental rights. These measures concern the Crimes of Terrorism Act (Wet terroristische misdrijven), Training for Terrorism Act (Wet training voor terrorisme), the Investigation and Prosecution of Crimes Counterterrorism measures in the Netherlands in the First Decade of the 21st Century 9

10 of Terrorism Act (Wet opsporing en vervolging terroristische misdrijven), the Protected Witnesses Act (Wet afgeschermde getuigen), the National Security (Administrative Measures) Bill (Wetsvoorstel bestuurlijke maatregelen nationale veiligheid), and the person-specific approach. So far, for a variety of reasons, the Dutch courts have barely, if at all, examined these measures for compatibility with fundamental rights. None of the measures have yet been examined for compatibility with any of the provisions of the European Convention on Human Rights (ECHR), or the additional protocols to the European Court of Human Rights. The first conclusion that can be drawn from an analysis of the measures based on the general case law of the European Court of Human Rights is that none of the Acts or other types of measures that were analysed, when considered as a whole, are actually in violation of the ECHR. That said, elements of such measures could be considered insufficiently foreseeable if they were examined by the European Court of Human Rights. The European Court of Human Rights would very likely regard the application of the aforementioned measures as serving a legitimate purpose. At the same time, there is a risk that the application of these measures in certain circumstances might be in violation of the Convention, as their application in individual cases could be deemed not to be necessary in a democratic society within the meaning of the ECHR. The analysis based on the case law of the European Court of Human Rights does not lead to the conclusion that the legal basis, the provisions or the application of any of the measures definitely implies the violation of fundamental rights. However, with respect to some measures, it was argued that there is a latent risk of the convention being violated, particularly as regards specific elements of measures, and depending on the application of the measures and the relevant circumstances in individual cases. 5. In the debate concerning the development of new measures, in particularly those that are more broadly applicable, and which relate to the collection of information on persons who are not suspects, complete transparency needs to be exercised as regards the aim and the intended impact of these counterterrorism measures. For a variety of reasons, these aspects have not always been sufficiently emphasised in the past ten years. As a consequence, in the counterterrorism debate, the principles of security and privacy have wrongly been considered to be mutually exclusive. This is a matter that requires constant attention if counterterrorism is to continue to have support and legitimacy. 10 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century

11 Cause and design of the evaluation 6. A motion submitted by MP Alexander Pechtold, which was passed on 15 November 2007, requested the government to consider the best way in which an evaluation of Dutch counterterrorism policy could be designed. A temporary committee of external experts was set up to investigate interconnections between various evaluations. This committee was chaired by Mr J.J.H. Suyver. 7. The Suyver Committee published its report in May First of all, the committee stated that it was understandable that the government had taken all possible measures to counter terrorism at a time when many attacks had been committed. The interviews conducted by the committee revealed that respondents did not feel that there was a lack of legal instruments, that coordination had improved considerably by the appointment of the National Coordinator for Counterterrorism, and that the Counterterrorism Information Box (CT Information Box) was considered to be an important and useful tool for cooperation among the various parties involved. 8. In addition to reporting these positive findings, the Suyver Committee also made 21 recommendations that were classified according to three themes: cohesion, legitimacy and effectiveness of counterterrorism measures. For the purpose of this evaluation, the 21 recommendations from the Suyver Committee have been combined and converted into ten key questions that serve as a starting point and framework of the evaluation for the entire evaluation. These ten key questions are as follows: -- To what extent is new policy based on threats, practical experience and/or international agreements? -- To what extent are measures applied in counterterrorism practice and do these measures offer added value in practical terms? -- What are the opinions of courts, independent supervisory bodies and other reviewers concerning the application of measures, and are these opinions taken into account when creating new policies? -- How is the decision to apply one measure rather than another taken? -- If the measure chosen had not existed, would any of the other existing measures have provided a remedy? -- To what extent is the practical application of the measure in keeping with the objectives of the policy? Counterterrorism measures in the Netherlands in the First Decade of the 21st Century 11

12 -- To what extent is the application of the measure dependent on the use of other measures, and what is the effect of this? -- To what extent, and in what way, does the safeguarding of legal rights play a role in the application of the measure? -- To what extent, and in what way, is the unity of command relevant for the effective application of the measure? -- To what extent, and in what way, does cooperation play a role in the application of the measure? 9. On 29 October 2009, the Minister of Justice and the Minister of the Interior and Kingdom Relations decided that they would deal with the recommendations from the Suyver Committee under their own responsibility. On 29 January 2010, the Ministers sent a work plan to the Lower House of Parliament in which they announced their intention to inform members of parliament by the end of the year of 1) the recommendations from the Suyver Committee, 2) any items requiring improvement, and 3) a follow-up plan for future evaluations. 10. Following up the recommendations from the Suyver Committee within the indicated time frame, combined with the scope of the policy area, means that rather than seeking to connect everything up, it is necessary to carry out targeted research. This evaluation focuses on the cause, application, assessment and amendment of counterterrorism measures. The ten key questions set out above form the framework of analysis for this evaluation. In order to answer the questions, a generic picture was formed of the development of counterterrorism measures in the first decade of the millennium, five specific measures were studied, and analyses were performed of case studies and case law. Generic picture of measures: counterterrorism measures in the Netherlands in the first decade of the 21 st century 11. As far as the cause for the introduction of special counterterrorism measures is concerned, it can be concluded that nearly all measures were introduced, or their introduction was accelerated, in response to specific terrorist threats or attacks. The attacks in the United States and Madrid, Spain, had a particularly strong impact on the development of counterterrorism measures in the Netherlands. Measures were taken at both national and international levels immediately after these attacks. The general trend was therefore that measures were introduced in 12 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century

13 reaction to events. However, this says nothing about the added value provided by the measures (or the lack thereof ). It should be noted that the response to attacks on Dutch soil is somewhat different from the response to international attacks. Instead of resulting in the decision to introduce new measures immediately, incidents in the Netherlands were initially followed by an investigation into the incident in question. Subsequently, new measures were introduced, or existing measures were amended, in response to the recommendations arising from these investigations. 12. The Netherlands takes a Comprehensive approach to counterterrorism. Besides dealing with the acts of violence themselves, this also involves addressing the developments and incidents that precede such acts. The Comprehensive approach should be considered as the basis of Dutch antiterrorism policy. The Comprehensive approach does not prescribe in detail what the various parties involved in counterterrorism need to do, and in that sense is not an active strategy that is used as a control mechanism. If the Netherlands had had a formally adopted strategy and/or coordinating body in the area of antiterrorism in 2001, the Comprehensive approach might have been communicated more clearly, and might have been adopted in its entirety more quickly, in the first half of that decade. In the early years of the past decade, when it came to taking counterterrorism measures, the emphasis was still very much on the repressive aspects of counterterrorism. As it is, it would probably have been difficult for a coordinating body or minister to focus attention on social preventative measures at a time when the security situation was fairly tense owing to the terrorist incidents that occurred at that time. 13. The success factors of Dutch counterterrorism are the use of measures, the activities of the law enforcement and intelligence services, and the growing ability of society, in particular Muslim communities, to be resilient and to resist radicalisation. 14. Evaluation and investigation form an important element of the Dutch antiterrorism approach. From the second half of the last decade onward, court decisions can be added to this list. On numerous occasions, changes have been made to methods and existing measures on the basis of such evaluations and court decisions. The policymaking and implementing agencies have consequently demonstrated to have the ability to learn. Counterterrorism measures in the Netherlands in the First Decade of the 21st Century 13

14 Specific picture of measures: application of framework of analysis to five specific measures 15. The framework of analysis used to outline the generic picture of counterterrorism measures was also applied to five specific national measures requiring evaluation as referred to by the Suyver Committee. The measures concerned the financial sanctions regimes, the CT Information Box, the system of special units, person-specific approach, and the National Security (Administrative Measures) Bill. The committee recommended looking at these measures in more detail partly in view of the fact that these measures could potentially have a deep impact on the privacy of individuals. 16. Just as was the case for the generic approach taken to counterterrorism measures, the introduction of the measures, and the type of measures taken, reflected their reactive nature: the measures arose in response to the threat assessment that existed at that time, and did not focus so much on the future. However, this does not mean that, as a consequence, the measures taken were not as adequate as they would have been otherwise. The lessons learned and experiences gained by other countries in dealing with new forms of terrorism, for instance, have played a part in the decision to revise the Dutch system of special units. 17. Some of the measures discussed have, in certain respects, played an extremely important role in the way in which the counterterrorism approach is perceived. The attention paid to the application of these measures is not entirely in keeping with their material significance in the area of combating terrorism. The extensive attention paid to the measures may have contributed to the perception that a large number of major measures had been introduced. 18. In the majority of cases, amendments to measures were made following court decisions or statements made by evaluation committees (independent or otherwise), or in response to criticism expressed within society or by experts. The ability to learn that was noted in relation to the generic approach is therefore also seen here. 14 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century

15 Application of measures in specific cases 19. Previously the intelligence and law enforcement services used to be more separate. The broader powers now held by the police and judicial authorities mean that terrorism has become more of a shared problem. These broader powers have led to increased coordination, but have not resulted in more problems in the area of coordination. It should be noted that this has taken some time, and that several years ago the parties still had some problems in interacting with each other. Those lessons have now been learned, and where necessary they have been turned into a framework and structure for cooperation or coordination. At the heart of the framework is the prevention of terrorism, not the role or position of the individual services. 20. Although terrorism has, in the last decade, increasingly become a matter for national services to deal with, there is still a great deal of cohesion and coordination between services at the local and the national level. That said, on some occasions it has been difficult to define the parties involved in terrorism matters. Moreover, a more significant role than formally prescribed has been assigned to the tripartite consultations at the local level (held by the mayor, the public prosecutor, and the head of the local police force), and in particular to the role of the mayor in these consultations. 21. A specific point requiring attention that was also raised by the Suyver Committee relates to the one-sided focus on individual measures, as a result of which the cumulative effect of the individual measures as regards safeguarding the legal rights of members of the public was virtually ignored in this debate. To put it briefly, each measure may be proportional when considered individually, but that does not necessarily exclude the fact that the entire raft of measures when applied all at once would be disproportional. All things considered, the outcome of the case-based analysis is that the potential negative cumulative effect of measures (as regard the subject of their application and the effectiveness of their approach) has not materialised in practice. Counterterrorism measures in the Netherlands in the First Decade of the 21st Century 15

16 Trends and findings 22. The opinions expressed on the measures under consideration were predominantly positive. In order to continue to provide added value, measures must evolve constantly to reflect the most recent insights and the threat assessment. 23. Some have the view that the package of measures, when viewed as a whole, is excessively harsh or even excessive with regard to number of measures. This is a relevant point, as there are various measures that will be introduced imminently, and the introduction of these measures could contribute to the perception that there are too many counterterrorism measures. The measures in question are broader measures that relate to collecting information on persons who are not suspects. During the debate on these measures, complete transparency needs to be exercised as regards the expected impact of these counterterrorism measures. 24. This evaluation focused primarily on cohesion. The framework used for this evaluation was designed to enable the evaluation of cohesion in the cycle of development, application, assessment and amendment. The conclusion of this evaluation is that such cohesion does exist, and that lessons are being learned and applied in practice. 16 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century

17 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century 17

18 Reader s Guide 18 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century

19 This report has been structured as follows: The first chapter is the introduction to the report. The second chapter provides the framework of the evaluation and the evaluation methods on the basis of ten key evaluation questions. The third chapter provides a generic picture of the cause, application, assessment and subsequent amendments to the counterterrorism measures taken in the past decade. In the fourth chapter the framework of the evaluation is applied to five national measures that were specifically mentioned by the Suyver Committee to be evaluated. These are the financial sanctions regimes, the CT Information Box, the system of special units, person-specific approach, and the National Security (Administrative Measures) Bill. The fifth chapter provides the findings that result from the case-based analysis of the application of counterterrorism measures. The sixth chapter contains the translation of the most important findings from the Chapters 3, 4 and 5 into the three criteria mentioned by the Suyver Committee, namely: legitimacy, effectiveness, and cohesion. This chapter will also discuss the approach to future evaluations. The report will be concluded with a few concluding observations. The Annexes A - H (not included) contain the following: A detailed timeline outlining a picture of the cohesion among counterterrorism measures in the Netherlands in the first decade of the 21 st century (A); explanation of the abbreviations used in this document (B); the documents consulted (C); the persons consulted (E); a list of individual evaluations that have already been conducted (D); concise description of the interactive thematic sessions held for the purpose of this evaluation (F); answers to the ten key evaluation questions regarding five specific measures (G); and, finally, the results of a study conducted by Radboud University Nijmegen into the question of whether the specific measures for counterterrorism laid down in substantive laws are compatible with fundamental rights (H). Counterterrorism measures in the Netherlands in the First Decade of the 21st Century 19

20 1 Introduction and Background 20 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century

21 This chapter provides a description of the background of the present evaluation, namely the Pechtold motion, the Suyver Committee that was established as a result of this motion, and the agreements with the Lower House of Parliament on the follow-up of the Committee s report. 1.1 Pechtold Motion and the Establishment of the Suyver Committee The Lower House of Parliament passed the Pechtold motion on 15 November This motion requested the government to consider the best way in which an evaluation of Dutch counterterrorism policy could be designed. The motion proposed that counterterrorism measures be effective and proportional. In addition, the measures taken must show sufficient cohesion, and must be assessed in European and international context. The Pechtold motion proposed that a period of relative peace is a good time for thorough reflection. This reflection may contribute to a careful preparation for any new policy. The Minister of Justice and the Minister of the Interior and Kingdom Relations responded to the Pechtold motion by letter on 11 July The Ministers concluded that nearly all measures had already been subjected individually to an evaluation mechanism. The Ministers consequently considered it important to get a picture of the interconnections among the evaluations and the studies that were being conducted or had been concluded. The insight into any interconnections was considered useful for the assessment and, if necessary, the amendment of current antiterrorism policy, and for the creation of future policy. A temporary committee of external experts was established by the government to examine the interconnections among the different evaluations and studies. Dr. J.J. H. Suyver was appointed chairman of this Committee. The Ministers pointed out that the Committee would not consider the institutional aspects of counterterrorism. The Committee was established on 1 October 2008 and was given the task to examine the following issues: 3 1 Parliamentary Papers II 2007/2008, VI, no Parliamentary Papers II 2007/2008, VI, no Parliamentary Papers II 2007/2008, VI, no Counterterrorism measures in the Netherlands in the First Decade of the 21st Century 21

22 In what way can the cohesion among the measures taken be assessed; In what way may this cohesion contribute to the preparation for new policies; and What are the points of attention for defining the position of the government on the outcome of the planned evaluations of terrorismrelated laws and regulations? The recommendations from the Suyver Committee will be used to answer the question formulated in the Pechtold motion, namely: what is the best way in which an evaluation of Dutch antiterrorism policy could be designed? 1.2 Recommendations from the Suyver Committee, Reactions from the government, and Instruction to the National Coordinator for Counterterrorism The Suyver Committee published its report in May First of all, the committee stated that it was understandable that the government had taken all possible measures to counter terrorism at a time when many attacks had been committed. The interviews conducted by the Committee revealed that the respondents did not feel that there was a lack of legal instruments, that formal coordination had improved considerably by appointment of the National Coordinator for Counterterrorism, and that the CT Information Box was considered to be an important and useful tool for collaboration among the various parties involved. In addition to reporting these positive findings, the Suyver Committee also made 21 recommendations that were classified according to three themes: cohesion, legitimacy and effectiveness of counterterrorism measures. The Committee recommended that an integrated evaluation of the questions around the legitimacy, effectiveness and cohesion of counterterrorism measures should be conducted, and that future evaluations should not be limited to the legal perspective. By letter of 9 July 2009, the Minister of Justice and the Minister of the Interior and Kingdom Relations stated that antiterrorism legislation and counterterrorism measures in practical implementation will be examined 4 Committee on the Evaluation of Counterterrorism measures (2009) Naar een integrale evaluatie van antiterrorismemaatregelen. (To an integrated evaluation of counterterrorism measures). 22 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century

23 by means of external research. 5 The three key aspects of this research were to be cohesion, legitimacy, and effectiveness. The Ministers promised the Lower House of Parliament that this research would be completed before the end of On 29 October 2009, it was decided in consultation with the Lower House of Parliament not to appoint a new external committee to conduct this research, but to make a start on the recommendations from the Suyver Committee under their own responsibility. 6 This was followed by the presentation on 29 January 2010 of a work plan for an evaluation, which announced the contents of the evaluation and consequently what the Lower House of Parliament could expect. 7 The work plan combined 1) the recommendations from the Suyver Committee, 2) any items requiring improvement, and 3) a follow-up plan for future evaluations. A short summary of the plan is given below. 1) The recommendations from the Suyver Committee The report of the Suyver Committee stated that the aspects of cohesion, legitimacy, and effectiveness had to be examined in more detail. In the present evaluation, these three aspects will be examined on the basis of a framework of the evaluation that is specifically targeted at those aspects. Bearing the observation of the Suyver Committee in mind that case law is not static, a systematic analysis will be made of most recent case law in general, and of case law of the European Court of Human Rights in particular, in addition to the evaluation of the measures. Due to this analysis, the aspect of the legitimacy of measures is given more emphasis. 2) Items requiring improvement The evaluation may yield items requiring improvement and new insights into counterterrorism. The Minister of Justice and the Minister of the Interior and Kingdom Relations will share these insights and items for requiring improvement with the Lower House of Parliament and, where possible, translate them into new policy. 3) A follow-up plan for future evaluations The findings will serve as a starting point for future evaluations. The evaluation will consequently also provide a framework within which future evaluations must be conducted. The National Coordinator for Counterterrorism has been instructed to coordinate this follow-up on the recommendations of the Suyver 5 Parliamentary Papers II 2008/2009, , no Parliamentary Papers II 2009/2010, , no Parliamentary Papers II 2009/2010, , no Counterterrorism measures in the Netherlands in the First Decade of the 21st Century 23

24 Committee, and is responsible for the implementation of the work plan described above as debated in the Lower House of Parliament. In this report, an account is given of the execution of the work plan. The next chapter will discuss the way in which the execution of this work plan was realised. 24 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century

25 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century 25

26 2 Evaluation Method 26 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century

27 In this chapter a description is provided of how the framework of the evaluation was developed and how this framework was subsequently applied. 2.1 Introduction Dutch antiterrorism policy is the result of a broad mix of both tough and lenient measures, which have been introduced nationally, globally and at the European level. The measures concerned are not isolated measures but have been incorporated into a broader context, including legislation on combating crime, legislation and policy on security, integration, and foreign nationals, and foreign policy. Many studies have already been conducted into the effect of individual measures concerning subareas. Please refer to the Research and Documentation Box (WODC) and the Netherlands Court of Audit for illustration. Together these agencies account for several dozens of studies in the area of radicalisation and terrorism. Antiterrorism policy is a very extensive policy area. Since 18 September 2001, more than 750 Parliamentary Papers have been published on the subjects countering international terrorism (ref. no ) and national counterterrorism (ref. no ) alone. In addition, various Parliamentary Papers were published on specific terrorism-related issues such as security policy on civic aviation (ref. no ) and the use of border controls for the purpose of counterterrorism (ref. no ). For an integrated evaluation that centres on cohesion, the proportion of the measures and policy in the area of antiterrorism that may potentially be involved in the evaluation is consequently large. The Suyver Committee warned that for the evaluation to be practicable, the concept of integrated does not mean that everything should be connected up with everything. There are, for instance, many measures in widely divergent policy areas (of education, social affairs, and development cooperation) that may be considered contributory to the prevention of violent radicalisation and terrorism, but that have not been labelled as such. Against this background, combined with the wish of the Lower House of Parliament not to establish a new committee and to start immediately on the recommendations of the Suyver Committee, the Ministers promised the Lower House of Parliament a practical evaluation within a relatively short period of time. The recommendations from the Suyver Committee formed the starting point of the evaluation. These recommendations were clustered and Counterterrorism measures in the Netherlands in the First Decade of the 21st Century 27

28 subsequently translated into evaluation questions. These questions were aimed at the cause, application, assessment and amendment of measures. Answering the questions occurred in general terms with respect to a wide range of counterterrorism measures in the Netherlands on the one hand and in more concrete terms with respect to five measures that had specifically been mentioned by the Suyver Committee on the other hand. In fact, it was specifically with respect to those five measures that the Committee had recommended further examination, partly because of the potentially drastic nature of the measures. With respect to each of the measures, the points for attention mentioned by the Committee were included in the evaluation. The measures concerned are the financial sanctions, the CT Information Box, the system of special units, personspecific approach, and the National Security (Administrative Measures) Bill. As a result of this, the key evaluation questions, based on the recommendations of the Suyver Committee, constituted the framework of this integrated evaluation. This framework is in principle applicable to each individual measure of counterterrorism, and may consequently also form the basis for future evaluations. The key evaluation questions are explained in the following sections. 2.2 Framework of the Eval0ey Questions Cohesion is the leitmotiv for the framework of the evaluation. In this context, the questions to be answered are whether cohesion exists in the cause of measures as well as whether cohesion exists in the application of measures. On the basis of the clustered recommendations from the Suyver Committee, ten key questions have been formulated which relate to the cause of (development of ) measures, the application of measures, the assessment of measures by independent supervisory bodies (including courts), and any amendments to measures on the basis of the lessons learned in practice and/or the opinions of the supervisory bodies. The ten questions together form the criterion to assess the measures. By answering these questions, it will be possible to provide a generic picture of the system of counterterrorism measures. The questions also form the criterion to assess each individual measure for evaluation. 28 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century

29 1. To what extent is new policy based on threats, practical experience and/or international agreements? 2. To what extent are measures applied in counterterrorism practice and do these measures offer added value in practical terms? 3. What are the opinions of courts, independent supervisory bodies and other reviewers concerning the application of measures, and are these opinions taken into account when creating new policies? 4. How is the decision to apply one measure rather than another taken? 5. If the measure chosen had not existed, would any of the other existing measures have provided a remedy? 6. To what extent is the practical application of the measure in keeping with the objectives of the policy? 7. To what extent is the application of the measure dependent on the use of other measures, and what is the effect of this? 8. To what extent, and in what way, does the safeguarding of legal rights play a role in the application of the measure? 9. To what extent, and in what way, is unity of command of relevance to the effective application of the measure? 10. To what extent, and in what way, does cooperation play a role in the application of the measure? Explanation of the ten key questions On the basis of the recommendations from the report of the Suyver Committee, the integrated evaluation of counterterrorism measures centres on the ten key questions mentioned above. A more detailed explanation and definition of the questions is given below. 1. To what extent are the measures a response to threats, practical experience and/or international agreements? The cause and purpose for drafting a measure is of relevance to the assessment of the effect of a measure in order to be able to determine its legitimacy and proportionality. The usefulness and necessity of a measure 8 is 8 The term cause was consciously chosen as a starting point for this key question and as a derivative thereof only in the second place the term necessity. The range of measures to be examined covers more than legislation alone, for which the more restrictive term necessity is usually used as the criterion. The question in what way are the necessity criterion in the specific scientific, legal sense and the necessity criterion as given substance in the social debate in the past decade related to each other and in what way have they fed - or should they have fed - each other in drafting antiterrorism legislation is not specifically discussed in this report. Several treatises have been written on the interrelationship (or desired interrelationship) between a legal approach in drafting antiterrorism legislation and the more socio-political approach for the introduction of specific legislation. This subject was recently also discussed extensively in the doctoral thesis titled Wetgeving in de veiligheidscultuur. Totstandkoming van antiterrorismewetgeving in Nederland bezien vanuit maatschappelijke en (rechts)politieke context, of M.A.H. van der Woude. Counterterrorism measures in the Netherlands in the First Decade of the 21st Century 29

30 after all first of all inferred from the purpose or the cause for which the measure was introduced. For the purpose of this integrated evaluation of counterterrorism measures, the three purposes or causes that are considered legitimate are threats, practical experience, and international agreements. The term threats means that the measure is directed at countering threats that have not yet occurred, but which threats are conceivable, or that the measure is directed at threats that have actually manifested themselves. The term practical experience means that a measure is intended to promote or lay down specific procedures or insights in practice. Examples of this are the facilitation of specific cooperation agreements or the changing of a specific structure of command for crisis situations. The term international agreements refers to the agreements into at the multilateral level (e.g. EU or UN) for the purpose of counterterrorism and which must be implemented at the national level. If none of the above-mentioned causes or purposes exists, the following question may be posed: To what extent is the measure legitimate for the purpose of counterterrorism? 2. Is the measure being applied and does it provide added value? It is difficult to establish with absolute certainty whether a measure has added value. With this question, the extent to which a measure may be qualified as valuable will therefore be considered on a relative, quantitative basis. The added value in this context will be determined on the basis of the global relationship between the frequency in which the measure has been applied and the frequency in which the phenomenon for which the measure has been provided has occurred. It must be emphasised in this context that as observed by the Suyver Committee as well a measure is not by definition not useful if it has never been applied, for the measure concerned may be intended for a specific conceivable threat that has never occurred as yet. In other words: the extent to which a measure is applied must in some way be connected to the extent to which the threat or the intended phenomenon that is to be countered occurs. Under certain circumstances, never applying a measure may consequently also constitute a reasonable connection. 3. Has the measure been tested by a court or has an evaluation been conducted? Did this test or evaluation lead to a change in policy and in what way? In addition to the perspectives of legitimacy and added value, lawfulness constitutes an essential criterion for the evaluation of counterterrorism measures. In this context, it concerns lawfulness of both the measure itself and the application thereof. In democracies, lawfulness is established in any case by judicial authorities. As the number of court decisions in terrorism cases in the Netherlands is limited, and European case law may also have an influence on Dutch case law, the decisions of the European 30 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century

31 Court of Human Rights and cases before courts in other European countries were also included in the evaluation. In addition, the views of leading judicial authorities were included as well. On the one hand it is essential to establish which opinions the courts expressed on measures, aspects of measures and the application thereof, on the other hand it is essential to examine how the omissions established by the courts have led to amendments of the measures themselves or the application thereof. 4. How is the decision to apply one measure rather than another taken? Which criteria apply? If a measure is applied, the judicial authority invariably checks whether the same intended result may be achieved by a different, more lenient means or measure. This consideration is referred to as the subsidiarity requirement. It is consequently essential to determine which considerations form the grounds for the choice in the application of specific measures. For the purpose of the integrated evaluation of measures that is centred on cohesion, it must also be established whether these considerations are ad hoc or whether they follow a standard assessment framework. 5. If the measure chosen had not existed, would any of the other existing measures have provided a remedy? The number of counterterrorism measures has increased the past few years. An increase presupposes that the existing set of measures was insufficient in practice. Thus, there must have been a need in practice for such increase. In addition to the relative, quantitative test from question 2 (relationship between the frequency in which the measure has been applied and the frequency in which the phenomenon for which the measure has been provided occurred), it is therefore justified to pose the question of whether the increase in measures is actually an increase or rather a duplication. 6. To what extent is the practical application of the measure in keeping with the objectives of the policy? Measures and laws must be applied for the purposes for which they were intended. An application different from the one intended for those specific and actual purposes may result in unlawful action. This is the criterion of purpose limitation. This principle also means that the purpose for which, for instance, data is collected or obtained is the determining factor for the further use of these data. In other words: the further use must be compatible with the original purpose of processing. Counterterrorism measures in the Netherlands in the First Decade of the 21st Century 31

32 7. To what extent is the application of the measure dependent on the use of other measures, and what is the effect of this? The effect or success of the application of a measure is difficult to assess, as an effect can often not be attributed one-on-one to a specific measure but depends on several factors. Assessing the success of a measure depends to a large extent on the scale on which the assessment is made. With respect to each measure, it may be examined whether the application in itself was successful. In many cases, however, this does not say much about the entire effect on countering terrorism. By including the follow-up steps, drawing conclusions on the effect becomes increasingly more difficult and also depends on the perception of success. An example of this is the question of whether it is more important to frustrate the actions of a terrorist in time, than to get him convicted. It is, however, possible to say something about the extent to which measures depend on each other for their final individual effect. 8. To what extent, and in what way, does the safeguarding of legal rights play a role in the application of the measure? Counterterrorism measures are, in principle, developed following the regular policy-making and law-making processes which incorporate the political responsibilities and legal safeguards. The application of measures may be effected in normal situations but also in special situations. It is justified to pose the question of whether in applying the measures legal protection is given the role as foreseen and considered necessary when the measure was developed. In answering this question, the opinions of the courts always fulfil an important role. 9. To what extent, and in what way, is unity and coordination of command of relevance to the effective application of the measure? In particular with respect to the operational implementation of a measure, with several parties being involved, or with respect to the simultaneous implementation of several measures by several parties, it is of relevance to know what the role of operational supervision is, for a successful application of the measure. For the purpose of cohesion, it is in particular of importance to examine what the function of unity and coordination of command is in this context. 10. To what extent, and in what way, does cooperation play a role in the application of the measure? One of the most important pillars of Dutch antiterrorism policy is the promotion of cooperation in the implementation of measures in all sorts of areas, from the exchange of information to joint exercises. It is therefore of relevance to examine in what way cooperation is playing a role in the 32 Counterterrorism measures in the Netherlands in the First Decade of the 21st Century