Where many security agencies are traditionally focused on ‘everything that happens after the bomb goes off’, over the past few years we have witnessed a shift towards ‘preventism.’ Preventism refers to the shift in security thinking where national security and the need corresponding need to prevent risks from materializing becomes the focal point of policymaking in security policy. This is especially the case when it comes to the use of the criminal justice system in the fight against terrorism, as witnessed in the increasing number of EU countries that are criminalizing preparatory acts related to terrorism. While the criminalization of preparatory acts (acts in preparation of a terrorist offence) is by no means a new phenomenon – it does raise the question of what its impact is on legal principles.
In 2016, a number of court cases related to terrorism in the Netherlands took place, including the case of 27-year-old Adil C., who in February was sentenced to one-year imprisonment – of which six months’ probation for financing terrorism. Adil transferred a sum of one thousand euros to a friend in Syria who was fighting there as a member of a jihadist organisation. In this case, the debate centred on the question to what extent transferring the money equals the preparatory act of financing terrorism. The case thus focuse on the potentially disastrous consequences preparatory actions might have in the future, while no actual terrorist act has been committed (yet); hence, the preparation becomes the criminal act. Two main legal principles are at stake in this debate.
The principle of legal certainty is central to our understanding of law and the legitimacy of legal frameworks and ‘demands that individuals can readily foresee the consequences of their actions’. In other words, it needs to be very clear for everyone to know when exactly one is committing a criminal offence. In the case of Adil, this question translates to whether he knew – or should have been aware of – what the money he transferred could be used for. In his case, the argument put forth by the prosecution (and followed by the judge) was that he accepted the possiblity that the money might be used for terrorist purposes and thus, he was liable. It was successfully argued that Adil, being aware of the whereabouts of his friend, accepted his role in potentially financing terrorism.
Burden of proof
Further analysing the question of whether Adil could foresee the consequences of his actions, the question becomes whether it could be proven that the money sent by Adil actually financed terrorism. It could not be proven it was not used for terrorism, but also not that it was. This raises the question whether there is a shift towards a subtle reversal of the burden of proof. Instead of ‘innocent until proven that something actually happened’ to ‘innocent until proven that something actually might have happened.’ Both the public prosecution and the judge argued that the money enabled the recipient to sustain his livelihood; thus the money facilitated terrorist activities.
While the tension between preventism-oriented security and the rule of law requires further investigation, this Dutch case indicates preventism at the very least leads to a change on two dimensions: a temporal stretch and an increasing weight of the offence.
First, in the temporal sense the line between an act (however long ago) and its potential consequences (however far away) becomes longer and longer (raising the question how to establish a causal relationship between the two). Second, when the notion of terrorist intent is tied to an offence, this leads to raising the stakes in the sense that the maximum sentence is increased significantly compared to the same offence committed as a ‘regular’ criminal act. These consequences, combined with the questions raised about fundamental legal principles, cause serious concerns regarding the use of criminal law on preparatory terrorist acts that demand careful consideration.