Recent terrorist events are habitually cited as justification for an unprecedented proliferation of counter-terrorism policies across Europe and the world. There appears to be widespread internationalconsensus that collective security and protection is of greater importance than individual security from interference by the State when it comes to terrorism. Furthermore, long established principles of law are beginning to be challenged by this reactionary form of law-making. In the Netherlands the murder of cinematographer, Theo Van Gogh, is commonly used as justification for this increase incounter-terrorism policies. In this essay we will look at the counter-terrorist obligations of the Netherlands deriving from membership of the European Union, and the measures employed in this regard. We then analyse the specific provisions of “terrorist objective” introduced into Dutch criminal law and the preliminary powers of investigation introduced into Dutch criminal procedure and examine thelegitimacy and application of these measures within these systems. Furthermore, Dutch counter-terrorism measures are still governed by the minimum requirements of the European Convention on Human Rights and so their compliance with these obligations will be evaluated. We then conclude whether the “Dutch approach” is effective and highlight the dangers of such a harsh approach.
The Dutch approachThere are three ways a political system can characterise terrorist acts: as war-like actions, disturbances of public order, or criminal acts. The Netherlands has recently legislated profusely in order to criminalise terrorist conduct in response to European obligations and general political and social concerns about public security. This is in stark contrast to the traditional approach of the 1970’swhen The Netherlands faced threats and attacks from the Moluccans. Judges were more sympathetic to their aims, dispensing low sentences for the crimes committed. Furthermore, the government attempted to solve the problems through negotiation and dialogue. This change in attitude can be explained by several reasons; first and foremost, it can be attributed to the obligations of the Netherlandsunder the European Union.
European Union Obligations
The events of 9/11 led to the adoption of several policies, measures, and regulations on counter-terrorism, both at European and national levels. The Netherlands, part of the European Union since 1957, and party to the Treaties regulating it, were highly affected by the European reaction to the recent terrorism events. Indeed, the new Dutchpolicies aiming at ensuring national security closely follow the current European trend.
The European Union adopted several legal texts. Two of them appear relevant to the topic in hand. First of all, it implemented the United Nations Security Council resolution 1373, calling for the suppression of financing and improvement of international cooperation, through CommonPositions 2001/930/CFSP and 2001/931/CFSP. To be more specific, Common Position 930 freezes, among others, funds used or intended for use in furtherance of terrorist acts, and Common Position 931 mostly indicates the basis on which the decision of listing individuals as terrorists should be taken.
The other main text adopted at a European level was made through the Council Framework reaction on JointInvestigation Terms of 13 June 2002. It enables two or more member states involved to set up investigation teams that are entitled to carry out, in more of the states involved, criminal investigations into specific matters for a limited period.
The legal basis of these counter-terrorism measures can be found in the Treaty of European Union (Article 29 promoting the cooperation between Member...