Counterterrorism from an international and European perspective

January 11, 2007 - nr.49
Summary

Summary, conclusions and recommendations

General
In its request for advice, the government took the situation after the terrorist attacks of 11 September 2001 as its starting point. A series of attacks perpetrated in various countries and locations after 11 September 2001 has highlighted the necessity and urgency of effective counterrorism. The AIV, though acutely aware that terrorism has a long history, has accordingly focused on the fight against contemporary terrorism at
international and European level.

In this advisory report on the fight against international terrorism, the AIV starts from the premise that the aims of safeguarding the rule of law and upholding the rights and safety of individuals are inseparable. In each step taken against terrorism, the authorities must do everything in their power to ensure that there are no casualties and that society is not disrupted. Terrorism constitutes a direct attack on human rights, in particular the right to life, which the state is duty bound to protect. At the same time, as the AIV also argues in its interim report, counterterrorism measures must be compatible with the rule of law and the obligations undertaken by states in accordance with international law, especially international human rights.

In order to adopt effective measures against the dangers and threats posed by terrorism, it is important to realistically assess and reassess these dangers and threats based on all the available information. In doing so, the authorities must consider what measures are likely to be effective and how the costs of such measures to the rule of law, society and the economy relate to other public interests. The extent of the measures should be no more – but also no less – rigorous than warranted by the need to combat terrorism and protect the public effectively. This implies a need for periodic evaluations of the international counterterrorism arsenal and, consequently, the possible modification of this arsenal in accordance with rising and falling threat levels.

The AIV supports the view that every counterterrorism strategy should comprise elements focusing on immediate and serious threats as well as elements aimed at eliminating or reducing the factors that contribute to the emergence of terrorist movements. Such a comprehensive approach requires short, medium and long-term policies. The AIV notes with approval that the United Nations and the European Union clearly recognise the need to combine prevention and suppression. The AIV draws particular attention to the effects and side-effects of counterterrorism instruments. In its view, force as an instrument of counterterrorism should be applied with the greatest possible restraint, due to the inherent risk of escalation and radicalisation. The latter applies in particular to the disproportionate use of force.

Roots of terrorism and policy development
The AIV starts from the premise that identifying and analysing the factors and circumstances that may give rise to terrorism is important for developing policies to prevent terrorist attacks. It bears mentioning, however, that evincing understanding for these factors and circumstances in no way implies a justification of terrorist methods.

Without claiming to present a comprehensive picture of the factors that encourage radicalisation and recruitment, the AIV has formed a general impression of these factors and identified five that merit particular attention: (i) unstable or failing states, which generally provide a facilitative environment for international crime and terrorism; (ii) justified or unjustified feelings of marginalisation at international and domestic level, combined with political and social and/or economic isolation and leading to frustration and susceptibility to radicalisation; (iii) conflicts of a nationalistic, ethnic, religious or tribal nature that often give rise to violent resistance, including terrorist acts; (iv) the cultural and historical context, which manifests itself in several ways, including hostility towards Western ideas and interests (‘Occidentalism’), and which is simultaneously reinforced by existing misconceptions and flaws in counterterrorism policy (e.g. torture, Guantánamo Bay, disproportionate force and the practice of equating jihad with terrorism); and (v) specifically within Western Europe, a general failure to integrate immigrant communities, in particular Islamic minorities, combined with socioeconomic and political discrimination which can lead to hopelessness, frustration and anti-social behaviour.

The AIV is aware that it is no simple matter to translate the above factors into specific policy measures. A particular factor or circumstance that gives rise to terrorism may be a historical fact, and therefore irreversible. In the light of its mandate, the AIV focuses on the foreign policy dimension of this issue. Policies that have their own intrinsic value, but which may also have a preventive effect as key elements of counterterrorism policy, have been discussed earlier in this report and have implications extending from the short term to the long term. Bearing this in mind, the AIV advises the government to play an active role – both independently and, in particular, multilaterally – in the following areas:
- global dialogues and efforts to encourage mutual understanding between different countries and different religions, as established in the framework of UNESCO and the United Nations and through initiatives of individual countries, NGOs and religious organisations;
- projects and technical assistance as recommended by the CTC to complement the UNDP programmes on good governance and strengthen law enforcement capacity, involving the Office of the High Commissioner for Human Rights (OHCHR) and the Terrorism Prevention Branch of the United Nations Office on Drugs and Crime (UNODC);
- promotion by the European Union of assistance programmes on good governance, human rights, democracy, education, economic welfare and conflict resolution and of its own action plan with a view to establishing an active integration policy on minorities and, more specifically, marginalised groups;
- improving observance of universal human rights around the world and demonstrating that the West does not apply double standards, as previously recommended in the AIV’s interim report on the prohibition of torture;
- making conflict prevention, conflict resolution and post-conflict reconstruction key elements of any counterterrorism policy and promoting a more active EU Middle East policy, which would include greater pressure on Israel and continued pressure on Hamas to recognise Israel, in view of the position of the parties concerned and the image of the West in the wider Islamic world;
- employing various instruments to promote resistance to radicalisation, including greater disclosure of financial flows to reveal who is funding radical activists and agitators, promoting academic research, promoting the dissemination of information (for example on international norms), promoting international contacts so that ordinary Muslims and imams alike can gain an insight into the many legitimate movements and traditions within Islam, and providing more study grants for students from Muslim countries; and
- creating better conditions for the integration of immigrants, for example by combating discrimination on the grounds of race, national or ethnic origin and religion, promoting and protecting minority rights and, more generally, complying with human rights treaties, and ensuring that the Netherlands continues to render account on this point in an effective way to the competent organs of the UN, the Council of Europe and the EU.

International instruments
In its assessment of counterterrorism measures adopted at international and European level, particularly in the framework of the United Nations, the Council of Europe, the European Union, the OSCE and NATO, the AIV is constantly on the lookout for new ways of strengthening the international counterterrorism arsenal and employing it more effectively. In this context, the AIV emphasises that the effectiveness of this arsenal largely depends on how states enforce the required measures, both independently and jointly.

One of the ways to establish a basis for combating terrorism is by adopting treaty norms. During the past 40 years, the United Nations has drawn up thirteen conventions on this subject. The negotiations on a comprehensive UN convention against terrorism have proceeded with difficulty for many years. Unfortunately, the AIV is forced to conclude that agreement on an international legal definition of terrorism is still a long way off. The controversies surrounding state terrorism and the struggle against foreign rule are still as relevant as ever. Although a comprehensive convention would, in the AIV’s opinion, help to transform the current fragmented approach involving thirteen conventions into a more coherent strategy, the lack of a universal definition should not impede counterterrorism policy. For policy purposes, the definition that appears in Security Council resolution 1566 of 8 October 2004, which was adopted unanimously, is perfectly adequate.

The AIV further believes that the recently adopted Council of Europe Convention on the Prevention of Terrorism is a useful additional instrument for combating terrorist activity. However, the ambiguous nature of certain core provisions should not be overlooked. This applies in particular to the criminalisation of ‘public provocation’ to commit a terrorist offence, which raises conflicts with the freedom of expression.

It is important to give a high priority to monitoring compliance with norms and required policy measures aimed at combating terrorism. Within the UN, the CTC and its Executive Directorate (CTED) play a vital role with respect to the member states’ reporting requirements (and the consolidation of those requirements) and country visits aimed at obtaining additional information on requirements relating to counterterrorism capacity. Likewise, the AIV believes the European Union should place a stronger emphasis on monitoring the member states’ efforts to comply with counterterrorism agreements, for example by providing adequate and specific details of this monitoring in public progress reports.

Cooperation and the mechanisms that have been established for this purpose or that can be employed more effectively to combat terrorism are an essential part of the counterterrorism arsenal. These include the exchange of information and the standardisation of procedures and classifications, which should ideally lead to improved operational cooperation between investigative services. The effectiveness of Europol’s role should also be considered more closely. The AIV further believes that a number of specific counterterrorism mechanisms developed within the EU framework, such as the European Arrest Warrant, which is meant to accelerate the transfer of suspects, and the financial sanctions regime regarding persons and organisations linked to terrorist activities, which is meant to facilitate the implementation of relevant Security Council resolutions, should be regarded as strengthening the counterterrorism arsenal.

The framework and architecture of international organisations and institutions are also part of the international counterterrorism arsenal. As regards the United Nations, the AIV supports the Secretary-General’s aim to improve the coherence of the various organs and the departments of the Secretariat. The AIV is not however in favour of starting a process aimed at creating a new counterterrorism organisation within or outside the UN framework. With regard to the European Union, the AIV values the role of the Counterterrorism Coordinator and would like to see the position strengthened and made more accountable to the European Parliament. A stronger Coordinator also depends on improved cooperation between the operational investigative services. Again with regard to the European Union, the AIV argues that all counterterrorism measures should be adopted in as decisive a manner as possible, in the interests of effectiveness and legitimacy. This may imply that decision-making in the field of counterterrorism should be transferred from the third pillar to the first. The AIV will examine this issue in a forthcoming report.

Military action should only be employed as a counterterrorism instrument in exceptional cases. The United Nations’ system of collective security has served as a framework for such action since 11 September 2001. For the record, the AIV wishes to point out that, under international law, self-defence pursuant to Article 51 of the UN Charter entails a number of restrictions. In the context of counterterrorism operations, the AIV believes that the concept of self-defence should not be stretched so far that it applies without restriction to action that goes beyond combating the original attackers.

Legal principles and legitimacy
The AIV emphasises once again that the instruments used to combat terrorism should be efficient and effective. At the same time, they should be applied in accordance with certain principles underlying the rule of law, such as fundamental human rights, and with due regard for the powers granted to the relevant international organs. The AIV believes policy measures (i.e. both legislation and its implementation) should be examined for their compatibility with democratic legitimacy, transparency and proportionality, and periodically reassessed.

The AIV observes that the Security Council has adopted far-reaching measures to combat terrorism, in particular since the attacks of 11 September 2001, and that in doing so it has, in effect, appropriated legislative and judicial powers. The AIV does not dispute the legality of this exercise of powers, though it does believe that the Security Council should increase the legitimacy of its actions by accounting for them in a more substantive manner and by aiming for compatibility with substantive human rights norms, for example with regard to sanctions that apply directly to individuals, whether or not they are actually targets of a criminal investigation. Continuous assessment and periodic evaluations according to the criteria of necessity and proportionality also remain necessary.

With regard to key operational instruments introduced by the European Union to combat terrorism effectively, the AIV believes that the EU does not fully respect certain fundamental legal principles in practice. It therefore argues that the envisaged Framework Decision on certain procedural rights in criminal proceedings, which sets out essential human rights norms in the field of criminal procedure that all member states must observe, should be adopted as soon as possible as a counterweight to the EAW. On the issue of financial sanctions, the AIV calls for an active focus on the legal protection of the persons and organisations concerned. In particular, they should not be denied the right to challenge in court a decision to place them on a sanctions list. Furthermore, the AIV argues that counterterrorism measures should be examined for compatibility with the criteria of necessity and proportionality in cases where the protection of personal data is at issue.

In general, the AIV recommends a more open assessment of the impact of EU measures on the rights of citizens. Within the European Union, the legal department of the Council Secretariat or the Commission could play a role in this regard, provided that the results of the assessment are made public. In addition, the adoption of farreaching measures should be preceded by a public debate, in which the European Parliament, as well as national parliaments, are given a chance to examine closely how governments assess the various issues concerned. Finally, the AIV emphasises that the European Union must ensure, by fostering transparency and conducting periodic evaluations, that counterterrorism powers are not used for other purposes and do not remain in force after the specific threat has passed.

Respect for human rights
In its request for advice, the government specifically asks to what extent human rights can be restricted in the fight against terrorism. The answer to this question lies in the prevailing norms and case law, which both underscore the principles of necessity and proportionality. The existing human rights system provides sufficient options for restricting these rights or taking even more far-reaching temporary measures in times of emergency. The AIV emphasises the need to exercise restraint in this regard, in order to ensure that the system is not undermined, and to strictly comply with the requirements of national and international control.

The AIV would reiterate that certain rights (e.g. the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment) are absolute and, as such, cannot be violated under any circumstances. The AIV remains concerned about ongoing developments that undermine the ban on torture. These are described in its interim report of December 2005. In this context, the AIV emphasises once again that the principle of non-refoulement, as enshrined in the relevant conventions and case law, should be respected unconditionally and that the practice of extraordinary rendition, which often involves the use of secret transports and occurs without any form of legal authorisation, violates the basic principles of international law.

With regard to prisoners of war and other prisoners held outside the territory of the detaining state due to alleged involvement in terrorist activities, the AIV points out that states are also obliged to comply with human rights treaties in the case of persons located outside their territory, when such persons are under their effective control and authority. This obligation also applies to peacekeeping and other military operations involving the Netherlands and other countries, for example, the Dutch mission to the Afghan province of Uruzgan.

The AIV sees the further reinforcement of the corpus of human rights law less in terms of new norms and more in terms of the stricter enforcement and observance of existing norms. This requires better coordination of human rights instruments and counterterrorism measures. In addition, it is imperative to incorporate a human rights test into legislation and other measures adopted in the fight against terrorism. This applies both to the counterterrorism organs falling under the Security Council and the counterterrorism activities and instruments employed at EU level.

The AIV further believes that there is a need to strengthen national and international oversight and monitoring of the compatibility of legislative and implementing measures aimed at combating terrorism with basic human rights norms. In this connection, it would point to the important role of independent judicial and semi-judicial organs at national and international level. The AIV also believes that the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism, who was appointed in 2005, deserves strong support.

The AIV thus concludes that, in the fight against terrorism, the full corpus of international human rights law should be strengthened chiefly by means of two approaches: promoting the coordination of human rights instruments and counterterrorism instruments, both in the United Nations and in the European Union, and intensifying the monitoring tasks of the existing judicial, semi-judicial, supervisory and advisory organs in the field of human rights. The AIV therefore advises the government to provide strong political and material support to strengthen these approaches.

In summary, the AIV concludes that terrorism is never justifiable and that it must be fought. However, this fight should always be compatible with the rule of law and the principles of international law, in particular those concerning human rights, refugee law and humanitarian law.

Advice request

Mr F. Korthals Altes                                                                 Ministry of Foreign Affairs

Chairman of the Advisory Council                                              Political Affairs Department

on International Affairs                                                              Bezuidenhoutseweg 67

Postbus 20061                                                                        2594 AC Den Haag                       

2500 EB Den Haag

 

Date      15 July 2005    

Our ref.  DPZ-234/05

Re        Request for advice on combating terrorism from a European and international perspective

 

 

Dear Mr Korthals Altes,

 

The bombings of 7 July 2005 in London emphasised yet again the urgency and necessity of combating terrorism effectively. Since the attacks on 11 September 2001, a myriad of anti-terrorism measures has been introduced worldwide. The attacks of 11 March 2004 in Madrid sharpened Europe’s awareness of the threat, prompting an additional package of measures and the appointment of an anti-terrorism coordinator for the EU. The Dutch government introduced measures to increase safety in the Netherlands and prevent terrorists making preparations within its borders for attacks elsewhere. In the post 11 September era, individual nations, the European Union and the international community should be developing anti-terrorism measures that reinforce and complement each other.

 

During its presidency of the EU in 2004, the Netherlands dedicated itself to strengthening anti-terrorism measures within the EU framework and implementing the related legislation that had already been adopted. In addition, it actively laboured to improve enforcement by EU member states of international sanctions against terrorist organisations. During the Dutch presidency, the EU began providing technical assistance to third countries on the basis of EU threat analyses. Since 2001 the Netherlands has been engaged nationally and internationally (e.g. within the United Nations and the Financial Action Task Force) in the development of effective measures against terrorism financing, and has consistently emphasised the need to introduce preventive measures.

 

In its bilateral and multilateral relations, the Dutch government stresses the importance of fulfilling human rights obligations and international humanitarian commitments in the fight against terrorism. Examples of this include its consultations with the United States regarding the treatment of prisoners in Guantánamo Bay, Afghanistan and Iraq and its efforts in 2005 within the UN Human Rights Commission to obtain a resolution on respect for human rights in the fight against terrorism. In this regard, a Special Rapporteur was appointed and given a strong mandate to advise states, to respond to information that comes to his attention and developments that could lead to human rights violations, to visit countries, and to coordinate cooperation between governments, UN bodies and agencies, NGOs and regional and national institutions.

 

Introducing measures to prevent attacks and protect Dutch citizens and suppressing terrorists groups is of the highest priority to the Dutch government. In addition, there is growing interest in what drives terrorists and, perhaps more importantly, in trying to understand why some citizens support terrorism implicitly or explicitly. While research data is available, an all-embracing explanation for terrorism and support for terrorism remains elusive. Another important question is whether the factors that fuel terrorism and radicalism could be eroded by, for example, US and European initiatives for reform in the Middle East and North Africa.

 

The High Level Panel (HLP) of the United Nations recently published a report focusing for a large part on a comprehensive strategy for suppressing international terrorism. The report addressed the issue of the Comprehensive Convention Against International Terrorism and the definition of terrorism, the set of international sanctions including those described in UN Security Council resolutions 1267 and 1390, the UN Convention against Nuclear Terrorism, the importance of respecting human rights and civil liberties, and the underlying causes of terrorism.

 

The HLP report sets the tone for an international debate on the role of the international community as a whole in tackling transnational problems. In his speech at the International Summit on Democracy, Terrorism and Security in Madrid in March 2005, UN Secretary-General Kofi Annan said that fighting terrorism was one of the most important challenges facing us in the decades ahead. He urged the international community to form a united front and called for effective international cooperation to combat terrorism, the very aim of which is to disrupt society and the international legal order. At the same time, Mr Annan emphasised the importance of respecting human rights and the rule of law.

 

The Dutch government supports the Secretary-General’s view that combating terrorism calls for an effective response from the international community. This response should not only focus on terrorism but also on the strategic elimination of the roots of terrorism and radicalisation. The international response should be reflected in regional and national measures. The Dutch government adds that the measures we take should be in compliance with our obligations with respect to human rights and under international humanitarian law.

 

The government asks the Advisory Council on International Affairs (AIV) to assess the fight against international terrorism since 11 September 2001 and to look ahead at the agenda for the coming years, as outlined in the HLP report. I would ask the Council to devote special attention to discussing the ways in which international measures impact on the national approach and vice versa.

 

The Dutch government also requests the AIV to advise on how human rights and the rule of law can best be safeguarded in the struggle against terrorism. The government is especially interested in whether the AIV finds there is justification for restricting human rights and international humanitarian law and, if so, to what degree and in what circumstances.

 

I would like to ask the AIV to address the following points in its advisory report:

 

  1. What is the AIV’s assessment of the international measures taken to combat international terrorism in response to the attacks of 11 September 2001? And more specifically, what is the AIV’s view on the development of the international legal order with regard to combating terrorism, particularly in terms of the relevant UN Security Council resolutions and UN conventions and their influence on the European and national legal order? 
  2. How can the international acquis for combating terrorism be strengthened? Does the AIV believe that improvements can be achieved through more legislation or through improved implementation and, where necessary, enforcement of existing conventions and Security Council resolutions? 
  3. What is the AIV’s assessment of international and European policy development  and the underlying analysis in terms of the fundamental causes of radicalisation and its international roots? What is the AIV’s opinion on the development of international and European policy on the underlying causes of recruitment of individuals for terrorist objectives and implicit and explicit support of terrorist groups? Are there gaps or shortcomings in the underlying analysis or policymaking with regard to radicalisation and recruitment? 
  4. To what extent can the relevant analysis and policy help in the medium to long term to curb radicalisation and, consequently, the terrorist threat? 
  5. What should the Netherlands be doing to continue building analysis capacity, developing know-how and instruments for strengthening the international architecture for both the prevention and the suppression of terrorism? 
  6. What could the Netherlands do to add to or possibly intensify the international initiatives already in place to combat the financing of terrorism and to support third countries (i.e. a contribution which, relative to the contributions of other countries, could enhance effectiveness, and may be made autonomously and through international cooperation)? 
  7. In its report, the HLP discusses the definition of terrorism. Of the defining elements proposed by the HLP, terrorism during armed conflict receives the most attention. In his report to the 61st session of the UN Commission on Human Rights,[1] independent expert Robert K. Goldman insists that the struggle against terrorism should not invariably be conflated with acts of war.[2] How does the AIV assess the HLP definition of terrorism in the light of Mr Goldman’s remarks? 
  8. What is the AIV’s view on the applicability of human rights conventions and conventions on humanitarian law in the event that the fight against terrorism leads to armed conflict or is ongoing during an armed conflict, specifically in relation to the treatment of detained terrorist suspects? Can individuals or groups of individuals detained on suspicion of terrorism during an armed conflict fall outside the Geneva Conventions or be disqualified from protection under the Conventions? 
  9. In view of the extraordinary and sometimes far-reaching measures that public authorities are required to take to protect the population against terrorism, could the AIV explain its views on the limits of justifiable restrictions of human rights and international humanitarian law? What is the AIV’s opinion in this respect on the suspension of certain rights and the invocation of derogation provisions? 
  10. Intelligence gathering is an essential part of preventing terrorist acts. In that light, what is the AIV’s opinion on how public authorities should handle information obtained from third parties when it is unclear how it was obtained, partly in view of the absolute ban on torture. I am also interested in the AIV’s opinion on whether diplomatic guarantees concerning the proper treatment of persons to be extradited on suspicion of terrorism to countries where human rights violations occur are an acceptable means of safeguarding these persons’ rights. 
  11. In the AIV’s opinion, how can the international human rights acquis be improved with respect to the fight against terrorism? Should greater emphasis be placed on new legislation or on implementation and enforcement of existing human rights instruments?

I look forward to receiving your advisory report at your earliest convenience.

 

Copies of this letter will be sent to the President of the House of Representatives of the States General and the President of the Senate of the States General.

 

Yours sincerely,

 

(signed)

 

Bernard Bot

Minister of Foreign Affairs

 

[1] E/CN.4/2005/103

[2] E/CN.4/2005/103, part III.C, para. 17 et seq.

Government reactions

President of the House of Representatives                                  Political Affairs Department

of the States General                                                               Terrorism and New Threats Unit

Binnenhof 4                                                                             Bezuidenhoutseweg 67

The Hague                                                                               Postbus 20061

                                                                                              2500 EB  Den Haag

 

 

Date      20 February 2007-05-09

Our ref.  DPZ/TND-020/2007

Re        Government response to AIV advisory report

            No. 49, ‘Counterterrorism in a European and

            International Perspective’

 

 

This letter represents the Dutch government’s response to AIV advisory report no. 49, ‘Counterterrorism in a European and International Perspective’.

 

1. Background

 

On 15 July 2005 I asked the Advisory Council on International Affairs (AIV) for its perspective on counterterrorism in a European and international context, particularly as regards the human rights dimension. Specifically, the AIV was asked for its views and recommendations on the effectiveness of measures taken to combat international terrorism, on the factors that can contribute to the growth of international terrorism and on the international and European policy designed to eliminate these factors. The AIV was also requested to consider a number of other issues: ways of improving the international human rights corpus and how the Netherlands might contribute to this process, the applicability of human rights conventions and international humanitarian law in the fight against terrorism, the possible suspension of certain rights, and the question of how governments should handle information from third parties and the extradition of terrorist suspects.

 

The AIV had already addressed the prohibition of torture in an advisory letter, to which the government responded on 20 February 2007 (House of Representatives, 30 300V, no. 107).1

 

In what follows, the government presents its view on the AIV’s findings on the roots of contemporary terrorism, the UN system, the EU and relevant regional organisations, and counterterrorism and the protection of human rights. The letter ends with an assessment of the AIV’s general conclusions and recommendations.

 

2. Advisory letter

 

The Advisory Council believes that terrorism should be regarded as a tactic which, historically speaking, has been used to pursue a variety of objectives. In the present report, however, the AIV limits itself to the subject of ‘contemporary terrorism’, as it has manifested itself since the attacks of 11 September 2001. The Council underscores the importance of continuously re-appraising the threat and of balancing priorities when deploying people and resources, though adding the qualification that total protection is unfeasible.

 

The AIV concludes that a generally accepted definition of ‘terrorism’ grounded in international law would be highly desirable, but until one can be found, the various parties need to work on formulating a more detailed description of the meaning of the term. The AIV situates counterterrorism in the broader context of human security, meaning that the approach to terrorism cannot be separated from the approach taken to other dangers and threats like poverty, inequality, human rights violations, disease, genocide and crimes against humanity. The AIV acknowledges the need for an integrated approach; this will require international cooperation, and for that reason it rightfully belongs to the domain of foreign policy.

 

The government endorses this integrated approach. Terrorism should not be tackled with repressive measures alone; its underlying causes must also be addressed. Obviously, an approach of this kind cannot be confined to the national arena, given that contemporary terrorism is characterised by transnational connections; terrorism is, in the most literal sense of the expression, a cross-border crime. Long-term success in fighting terrorism will only be achieved by promoting international cooperation.

 

2.1 Roots of contemporary terrorism

 

The broader perspective on terrorism favoured by the AIV is apparent from the contributing factors it identifies in the report: unstable states, isolation, conflicts, the cultural and historical context, and the marginalisation of minorities.

 

In describing these factors the AIV does however issue a significant caveat: the identification of possible root causes of terrorism does not, in itself, have direct implications for policy. The AIV goes on to conclude that since terrorism is a worldwide responsibility, it demands a global approach, if we are to combat the ideologies behind it and tackle problem regions or countries. Various pre-existing dialogues play an important role in realising this vision. In the view of the AIV, participation in these dialogues should not be limited to government authorities, but should also include civil society groups.

 

At the international level, the AIV advises exerting more pressure on governments in the Middle East to comply with human rights standards. In doing so, Western countries need to make clear that they are promoting universal values and not applying double standards. This is one reason, contends the Council, that human rights violations by Western countries should be dealt with firmly.

 

The AIV advises integrating conflict prevention, conflict mediation and post-conflict reconstruction into counterterrorism, as it is not simply the direct experience of violence but also the perception that related groups are being treated unfairly that increases the likelihood of terrorism. The Israeli-Palestinian conflict deserves particular attention, although it is far from the only impetus for contemporary terrorism.

 

Furthermore the AIV stresses the importance of promoting resistance to radicalisation, in all countries. This can take a variety of forms, including greater transparency of financial flows to radical organisations, independent journalism and scholarly research, dissemination of information on international standards, the translation of reformist texts from Islamic countries, increased international contacts and scholarships for students from the Muslim world.

 

The government’s view of the factors contributing to terrorism as expressed in the letter to parliament in response to the motion by MP Van der Laan (House of Representatives, 30 800V, no. 5) is largely in line with the conclusions of the AIV. The letter in question discusses a variety of factors that can contribute to terrorism, such as political and social marginalisation and exclusion, hostility towards the West, perceived double standards and the abuse of religion for terrorist purposes, local and regional conflicts, and the socioeconomic situation in regions with weak or failing governments. The government sees another potential factor in the situation in certain high-risk countries. While such countries may be relatively stable, the actions of their regimes could alienate certain segments of the population, making them desperate and more susceptible to radicalism.

 

Marginalisation, which plays a major role in radicalisation and the rise of home-grown terrorism, has already been addressed in several previous policy documents, such as ‘From Dawa to Jihad’, a 2004 memorandum by the General Intelligence and Security Service (AIVD) (House of Representatives, 29 754, no. 4), the government’s 2005 memorandum ‘Radicalism and Radicalisation’ (House of Representatives 29 754, no. 26), ‘Resistance to the Radicalisation of Young Muslims’ issued by the Minister for Immigration and Integration in 2005 (House of Representatives 29 800 VI, no. 117) and the AIVD memorandum ‘Violent Jihad in the Netherlands’ of 2006 (House of Representatives 29 754, no. 69).

 

The government shares the AIV’s view that such factors should not be seen as causes of terrorism, though they do contribute to the rise of terrorism. Similarly, the government agrees that while it is vital to recognise and analyse these factors, they should never be regarded as a justification for terrorism.

 

In issuing its policy recommendations the AIV is right to keep a number of options open, to avoid giving the impression that good policy can eliminate all such factors. The government has issued similar cautions of its own: there is an ever-shifting constellation of factors that contribute to terrorism in a given situation. Because the investigation and analysis of these factors is an ongoing process, policy will have to be modified over time. The government will be alert to new developments, and taking account of Dutch resources and scope for action, it will continue to modify policy to meet specific needs and respond to new developments and insights. It should be borne in mind, however, that complete ‘coverage’ of all eventualities related to terrorism is a difficult aim as policy initiatives, both domestic and international, can sometimes have counterproductive effects over the short and medium term.

 

In the letter to parliament cited above, the government dwelt at some length on its policy for dealing with factors contributing to terrorism. To that end the government prizes a balanced and integrated approach. Obviously, the top priority for any policy is respect for human rights, not only because terrorism is fought in defence of the rule of law but also because the principle of the rule of law guides all aspects of counterterrorism. The government has made an express decision to pursue its commitments in a broader international context, for the simple reason that terrorism is a global problem.

 

The government supports a number of options put forward by the AIV: investing in democratisation in the Middle East, in dialogue between countries, cultures and religions, in activities designed to reduce hostility to the West and in activities that aim to prevent religion and ideologies from being misused for terrorist purposes. The Netherlands attaches great importance to promoting international peace and stability and has long invested in activities to achieve this goal, including conflict prevention and settlement projects. By strengthening and promoting international security structures, the Dutch government will be able to come closer to realising its aims. Given the size and nature of the international terrorist threat and its capacity to jeopardise peace and security, an ongoing and intensive commitment by the Netherlands is justified. In the coming months and years, the terrorist threat will influence the Dutch agenda in this area.

 

2.2 United Nations

 

In chapter 3, ‘The international system: the United Nations’, the AIV examines the role of the UN Secretary-General, the Security Council, the General Assembly and the specialised organisations, funds and programmes for fighting terrorism. The AIV devotes particular attention to the important role played by the Security Council in the past several years within the UN system as a whole.

 

Global Counterterrorism Strategy

Since the appearance of the AIV’s report, the General Assembly, acting in response to the Secretary-General’s report ‘Uniting against Terrorism’, has adopted a Global Counterterrorism Strategy by consensus (6 September 2006). The government is pleased to see the General Assembly claim a lead role for itself by approving this strategy and giving new momentum to the fight against terrorism with this strong, political signal. In doing so, the General Assembly has not only reaffirmed its essential role as a standard-setting body, but with the strategy’s broad approach and practical suggestions, it is also contributing to the effectiveness, legality and legitimacy of the measures to combat terrorism within the UN system. The strategy identifies specific actions for:

 

  • addressing the conditions that contribute to the spread of terrorism;
  • combating and preventing terrorism;
  • enlarging the capacity of individual states and bolstering the role of the UN in doing so;
  • ensuring that respect for human rights and the rule of law are at the foundation of counterterrorism.

 

The strategy also calls to mind the relevant resolutions by the General Assembly and Security Council and urges the ratification and implementation of the relevant conventions and protocols.

 

The strategy will be discussed annually in the General Assembly on the basis of a report on its implementation issued by the Secretary-General. This will compel him to play a more direct role in facilitating an incremental approach as urged by the AIV. The strategy will be evaluated two years after its adoption.

 

 

Role of UN bodies

The government considers the four specialised subsidiary bodies of the Security Council to be of great importance. The government agrees with the AIV that the 1373 Counterterrorism Committee (CTC) is especially significant, owing to the wide-ranging obligations that resolution 1373 imposes on states.

 

Using funds from its own Foreign Policy Support Programme (POBB), the government helps to sponsor the work of the Counterterrorism Implementation Task Force (CTITF) established by the Secretary-General. The aim in doing so is to increase the coherence of activities within the UN system. The government is in favour of institutionalising the CTITF, and together with other EU member states, it will again urge the new Secretary-General Ban Ki-moon to make the necessary changes.

 

The government believes that the various UN organisations add value to the fight against terrorism by providing technical assistance. These activities are especially important because they can bring UN member states closer to ratifying and implementing the 16 conventions and protocols related to counterterrorism.

 

The government supports these activities through the POBB, concentrating primarily on countries identified as priorities by the EU (due to the threat they pose) and on Africa (due to the capacity-related problems that plague the region).

 

Comprehensive Convention on International Terrorism

No discussion of developments within the UN can overlook the Comprehensive Convention on International Terrorism (CCIT). Although progress in negotiations has thus far been limited thanks to the lack of consensus on the definition of terrorism, the government and its partners continue to push for such a convention. The major sticking point remains the insistence on the part of the Organisation of the Islamic Conference that an exception be made for all acts occurring in the context of a struggle against foreign occupation (read: the Palestinian situation).

 

Setting standards

The government recognises a number of positive developments in the field of counterterrorism: the well-functioning, extensive system for standard setting within the UN, the growing number of states that are party to the various conventions and protocols on the subject and the increasing number of states that are complying with their obligations.

 

The government shares the view of the AIV that there is no point in attempting to include terrorism as a distinct offence under the Statute of the International Criminal Court during the review process in 2009. The definitions of offences given in the present Statute provide sufficient scope for prosecuting terrorist crimes.

 

Like the AIV, the government sets great store by the requirement that states report to the CTC; this gives a clearer picture of just how well they are complying with their obligations. The government concedes that many states are suffering from ‘reporting fatigue’ and for that reason supports the initiatives proposed by the former Danish CTC chair to reform the reporting regime by developing a customised approach and streamlining various procedures. The government regards substantive compliance with norms as the most important issue.

 

The government welcomes the AIV’s observation that in refining criteria it may be constructive to refer to the standards established over the past several years by the functional organisations. To this end, the Netherlands sponsored a Counterterrorism Compliance Conference in 2006, in collaboration with the Global Centre on Terrorism, an NGO. At the conference, representatives of operational organisations discussed best practices and ways of increasing standardisation within the UN system. The AIV is correct in its assertion that specific decisions will have to be taken by the Security Council before such standards can be made directly binding on all UN member states. In practice, this is proving to be difficult since the Security Council’s authority in the case of such universally binding statements may be called into question. Nevertheless the government is committed to pursuing greater standardisation of norms within the UN system.

 

The government acknowledges capacity problems and a lack of political will on the part of some states, and it is now attempting to rectify this situation through technical assistance, both bilaterally and through the framework of the UN and EU. With respect to the UN the CTC is an important coordinating body for the provision of technical assistance. The government also supports various specialised UN organisations. The AIV’s suggestion to link up with existing programmes run by bodies like UNDP is a welcome one, although it should be added that any interventions undertaken with UNDP would be premised on poverty-related and contextual analysis. Although poverty on its own is not a contributing factor to terrorism, the government believes that an unstable socioeconomic situation can present certain opportunities to radical organisations, particularly in areas plagued by weak government, failing states or regional authorities, where the state is incapable of providing basic services (see also the motion by MP Van der Laan, 30 800 V). The government would encourage the CTC to integrate human rights into other policy areas, using the human rights expertise of the Counterterrorism Executive Directorate (CTED). It is also necessary to devote attention to improving the quality of governance and the rule of law. The Netherlands will do its part to promote multilateral endeavours that can improve governance in weak and failing states or regions and to ensure that these issues remain high on the international agenda.

 

Legality and legitimacy

The government shares the AIV’s concerns about protecting suspects and other individuals against the consequences of measures taken by the Security Council. At the 2005 UN Summit world leaders called for fair and transparent procedures for the listing and delisting of individuals and entities on sanctions lists. Another recommendation was to introduce the possibility of humanitarian exemptions. In the light of Security Council Resolution 1617 and reports by the Analytical Support and Sanctions Monitoring Team, the 1267 Committee drew up a consolidated list and a number of guidelines. Since the release of the AIV’s report, Resolution 1730, which requires a revised procedure for removing individuals from the sanctions list, was unanimously adopted on 19 December 2006. The most notable aspect of the proposal is the establishment of a ‘focal point’ at the Secretariat, to whom individuals can apply to be removed from a sanctions list. The involvement and support of at least one member of a sanctions committee is necessary for such a request to be considered. Also important in this context is the passage of UN resolution 1735, which expands the obligations of member states by introducing the ‘statement of case’ and the notification of the parties concerned. The government sees these resolutions as significant first steps that improve the options for delisting. The government also agrees with the AIV that the Security Council must observe internationally accepted human rights standards and international humanitarian law in fulfilling its duties.

 

The AIV contends that if the Security Council, which determines its own competences in certain specific cases, elects to claim more freedom for itself in setting policy (at the expense of the General Assembly, for example), the balance between the six main bodies may be disturbed. By and large the government is in agreement with the AIV’s analysis. With regard to counterterrorism, the General Assembly exercised its authority by adopting the Strategy, which is cited in all relevant Security Council Resolutions. To the government’s way of thinking, this would seem to suggest that the risk scenario sketched by the AIV is not imminent.

 

Coherence and architecture

The government endorses the AIV’s summary conclusion that the coherence and architecture of international organisations and institutions can be a tool for effectively combating terrorism. The Secretary-General’s efforts to enhance the coherence and coordination between the various bodies and subdivisions of the Secretariat also enjoy the government’s support. Similarly, the government shares the AIV’s assessment that it would be inadvisable to initiate a process to establish a new organisation with a mandate for counterterrorism, either within or outside the UN.

 

2.3 EU and other relevant regional organisations

 

2.3.1 EU

The AIV describes the EU’s role vis-à-vis counterterrorism as chiefly strategic and facilitative. Yet measuring the effectiveness of the EU is no easy task. According to the AIV, cooperation between EU partners is hampered by a lack of mutual trust, and this has a negative effect on the way a body like Europol functions, for example. Decisions are not being implemented fast enough. The process of preparing EU measures should be marked by decisiveness.

 

Improving decision-making, coherence and structure of policy

The AIV highlighted the large number of structures for consultation, policymaking and implementation, labelling the problem a ‘crowded policy space’. This situation should be corrected primarily by altering the method of decision-making, rather than by creating new institutions. The AIV values the role of the counterterrorism coordinator and favours strengthening his position.

 

The government agrees with the AIV that the necessary improvements to the decision-making process cannot be achieved by creating new institutions. It is the effectiveness of the decision-making itself that must be enhanced. In this context the AIV cites the European Commission’s proposal to transfer certain responsibilities from the third pillar to the first. Under the current system the decision-making process is spread out among three different pillars. In the first pillar, the Commission and the European Parliament would have more powers. However, on this question, the AIV was reluctant to venture too far into the subject matter of its next report, ‘Europe: a Priority!’, which would be released in November 2006. After taking office the new government will issue an official response to this report as well. With this in mind, the government would like to limit itself to a reference to the discussion of the decision-making process for JHA issues conducted during the Finnish Presidency and the possible use of the passerelle in the third pillar.2 The Netherlands has expressed its willingness to study the options for improving the decision-making process and the introduction of the ‘community method’. A careful examination should be made of the differentiated application of the passerelle in light of the specific provisions of the Constitutional Treaty. For the record, it should be noted that among the member states, views differ widely on the advisability of applying the passerelle, as emerged during talks at EU level.

 

Regarding the AIV’s advice to consider the efficiency of Europol’s role more closely, the government would refer to the JHA Council of December 2006, which adopted conclusions for strengthening Europol. This will be a priority issue during the German Presidency.

The government concurs with the AIV that the role of the counterterrorism coordinator should be strengthened. However, the issue of the coordinator’s accountability to the Council and the European Parliament is an institutional one and should be treated as such.

 

Given the overlap between counterterrorism and the CFSP, the government believes that instruments from the second pillar will continue to be essential in making effective policy in that area. Bilateral cooperation with third countries remains a cornerstone of the fight against international terrorism. Thus far, concerted actions by the EU have been reasonably successful. Dialogues have been conducted in the framework of EUROMED and in conjunction with regional organisations like ASEAN and the GCC. Furthermore the EU has concluded partnership agreements with various countries. The Netherlands supports initiatives like these, in part because anti-terrorism clauses can be included in such agreements, heightening the involvement of third countries in combating terrorism. The instruments and structures associated with the European Security and Defence Policy (ESDP) can also be used to counter terrorism. This has implications for not only prevention and protection but also a state’s response to large-scale attacks.3

 

Finally, on the subject of the EU, the government would like to discuss the connection with first-pillar activities. Protecting the Union’s external borders is a shared responsibility; everything possible must be done to ensure that potential terrorists do not enter EU territory. In this connection the EU has taken a number of steps, including the development of the new Schengen Information System (SISII) and the Visa Information System (VIS). Both systems are indicative of the relationship between the first and third pillars. In negotiations within the EU, the Netherlands has been pushing for the efficient and proportional use of this data for counterterrorism. For the VIS this requires a specific legal instrument in the third pillar, which is currently the subject of negotiations. This system has also been translated to the domestic situation, in the form of a national plan of action on border controls,4 based in part on the recommendations of the Netherlands Court of Audit in their report ‘The Use of Border Controls to Combat Terrorism’.5

 

Legal principles and legitimacy

The AIV draws attention to the wide scope and possible lack of precision of the Framework Decision on combating terrorism. In the view of the AIV, the use of the European Arrest Warrant opens up too many possibilities for blurring the demands of specificity and legal certainty, two cornerstones of criminal law. The AIV argues that the legal protection measures in place for financial sanctions should be re-examined, with a view to introducing supplementary provisions. The application of specific, ad-hoc powers for combating terrorism must be subject to ongoing evaluation, in order to prevent them from being used for other purposes and to ensure that they do not remain in force after the threat has passed.

 

The government takes note of the AIV’s observation on the Framework Decision and the European Arrest Warrant (EAW), though it will not be taking any action in response. Both instruments have been transposed into national regulations without deviating from existing patterns with respect to legal safeguards. These two frameworks seek to guarantee the principle of legality, with respect to both criminal law and the law of criminal procedure. On this point, the government would draw the Council’s attention to article 1, paragraph 2 of the Framework Decision, which states that the Decision ‘shall not have the effect of altering the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union’. The interpretation of the Framework Decision in the member states will form the basis for the interpretation of this precept (cf. European Court of Justice, 16 June 2005, C-105/03, Pupino).

 

In the past few months the EU has been working hard to ensure that financial measures taken in terrorism cases are accompanied by adequate legal protection. On 12 December 2006 the Court of First Instance of the EU ruled in the case of MKO v. The Council that the procedures for placing individuals and organisations on the EU terrorism list were in need of improvement. With the active contribution of the Netherlands, an effort was made to introduce tighter requirements for proposals for including or removing parties from the EU list, as well as to broaden the options available to the parties concerned to protest against their inclusion on the list to the Council. These reforms seek to place individuals in a better position to mount a defence by providing them with more information about the charges against them. The improvements discussed will also extend to the procedure governing the semi-annual revision of the list, another outcome the Netherlands had been keen to achieve. With respect to this issue, the government would refer to the letter of 10 January 2007 from the Minister of Foreign Affairs to the Dutch Senate, describing the various amendments to the procedures.6

 

In its report the AIV urges an evaluation on the basis of the criteria of necessity and proportionality as part of the array of instruments for protecting personal data. In response the government would refer to the proposal by the European Commission on legislation for processing personal data for the prevention, detection, investigation and prosecution of criminal offences and the imposition of penalties. In large measure, the substance of the proposal derives from Directive 95/46, which applies to the first pillar.

 

The AIV argues for more transparency and periodic evaluation of instruments, in order to prevent a situation from arising whereby powers created for the express purpose of combating terrorism are used for other ends, or remain in effect after the threat has passed. Counterterrorism measures, like other EU legislation, should be subject to evaluation. This standpoint is also motivated by a desire to improve the quality of legislation. In conjunction with this, the government would refer to its response to the European Commission’s Work Programme 2007, which discusses this issue at some length.7 The government does not, however, agree with the emphasis placed by the AIV on the temporary nature of counterterrorism measures. This standpoint seems to be tied to the expectation that the terrorist threat is a passing concern, even though events of the past several years would unfortunately seem to suggest the opposite.

 

2.3.2 Regional organisations: Council of Europe, OSCE and NATO

 

Council of Europe

To a large extent the AIV relates the importance of the Council of Europe to the position of the European Convention on Human Rights (ECHR) and related case law from the European Court of Human Rights. A case in point is the Guidelines on Human Rights and the Fight against Terrorism, which was adopted by the Committee of Ministers of the Council of Europe on 11 July 2002. Also significant in this context is the Convention on the Prevention of Terrorism of May 2005. The AIV stresses the need for care in drafting legislation for the implementation of this Convention, considering the potential for infringements of the freedom of expression. Yet as things now stand, no new legislation is necessary to implement the Convention, since the acts it describes already fall under the scope of the Criminal Code.

 

OSCE

The government shares the AIV’s view that the role of the OSCE relates mainly to the areas of consensus-forming and conflict prevention and resolution. The organisation possesses exceptional depth of expertise. In its report, the Advisory Council suggests that the OSCE should concentrate more on individual states that have committed themselves to the UN human rights corpus by supporting them in implementing counterterrorism legislation. The government feels this could be a useful proposal.

 

NATO

The AIV views NATO primarily as a useful, transnational consultative forum and a vehicle for intelligence sharing. With the organisation’s decades of experience and its available capacity, NATO is capable of robust military action. The government agrees with this view and would add that conflict prevention, conflict management and reconstruction are important activities in striking at the root causes of terrorism. NATO already plays a significant role in all these areas and will undoubtedly continue to do so in the future.

 

The AIV contends that protecting the national armed forces from terrorist attacks is not, in itself, a theme of counterterrorism since such protection need not be justified solely on those grounds. On that point the government would like to express a number of reservations. NATO programmes produce intelligence that is not only used to protect troops but also to protect those carrying out reconstruction activities. In many cases the local population is closely involved in reconstruction, and their participation is predicated on a certain degree of security. Information gleaned from NATO operations can also be used to deal with a terrorist threat to the Netherlands, particularly one involving improvised explosives or a CBRN device.

 

2.4 Counterterrorism and human rights

 

The AIV asserts that counterterrorism measures should always be compatible with international law, specifically human rights, refugee law and international humanitarian law. The government, which endorses this position, believes that existing human rights instruments constitute a solid framework for combating terrorist threats and acts. The Netherlands will continue to reiterate, at both national and international level, that the fight against terrorism must be waged within the confines of international law.

 

Interim report on the prohibition of torture

In the current report the AIV revisits the issue of torture, describing in depth the developments that have occurred since the publication of the interim report on 2 December 2005. As stated in its response of 20 February 2006, the government welcomes the interim report. This government stands by its predecessor’s position and continues to share the Advisory Council’s ongoing concern about the enforcement of the ban on torture.

 

The Council states that no legal consequences may be attached, at law or otherwise, to information that might have been obtained through torture by foreign powers. The government concurs with this position, as it already indicated in its response to the interim report.

 

As to the principle of non-refoulement, the government would refer to its response to the interim report on the torture ban of 20 February of this year. The government would again like to emphasise the total unacceptability of extraordinary rendition (i.e. the practice of arresting suspects and transporting them to generally secret locations, without the intervention of the justice authorities or any court).

 

Human rights versus international humanitarian law and possible strengthening of the corpus of human rights law

Like the AIV, the government attaches great importance to the contribution of the European Court of Human Rights, the UN treaty bodies, and of course, the special rapporteurs (particularly the Special Rapporteur on the promotion and protection of human rights while countering terrorism). The Netherlands will continue to support relevant international human rights organisations and mechanisms and advocate the option of creating special procedures for facilitating effective and decisive action. Close consultation and coordination within the UN, EU and the Council of Europe on the nexus between human rights and counterterrorism are essential to this process in order to guarantee both public security and respect for human rights.

 

Needless to say, everyone in situations of armed conflict has a right to humane treatment as mandated by article 3 of the Geneva Convention relative to the Treatment of Prisoners of War and article 75 of the First Additional Protocol. The principles underlying these provisions are inviolable.

 

The government also agrees with the AIV that states are bound to observe human rights conventions with respect to individuals located outside their territory but within their jurisdiction. Pursuant to the case law of the European Court of Human Rights and the views of the UN Human Rights Committee, extraterritorial jurisdiction may be said to obtain if a state exercises ‘effective control of an area’ or ‘actual authority’ in a territory outside its own national borders.

 

In contrast to the AIV, the government believes that it is not always the case that human rights conventions will have extraterritorial application in the instance of peacekeeping and other military operations or in situations of armed conflict. With respect to this question the government would point out that the European Court of Human Rights established limits on the extraterritorial application of the ECHR in the Bankovic case (12 December 2001, appl. no. 52207/99). The issue of a convention’s extraterritorial applicability will, in the view of the government, have to be decided on the basis of the specific circumstances of each case. This does not alter the fact that in reaching the decision to contribute troops to the NATO mission in Afghanistan, the government explicitly affirmed its commitment to internationally accepted human rights norms.

 

3. Conclusion

 

The government would like to express its appreciation for the AIV’s report, with which it is largely in agreement. The government regards the report as an encouragement to pursue its integrated approach to counterterrorism policy, in which foreign policy plays a particularly crucial part. Even though the effectiveness of policy cannot be measured over the short term and a causal link to official measures is difficult to demonstrate, the government believes it should continue down the path it has taken, with respect to matters like combating the roots of terrorism and the use of multilateral forums like the UN and EU. Ultimately the combination of international cooperation, the international security architecture, conflict management in all its manifestations, the furtherance of good governance and the rule of law is the only way to confront the phenomenon of international terrorism over the long term. In making this assertion, the government endorses the great importance attached by the AIV to respecting human rights and international humanitarian law in crafting counterterrorism policy. For this reason the government will continue to promote these principles actively in the international arena. Upholding these principles is a prerequisite for creating and maintaining both national and international support for the necessary measures. Moreover, it is a way of reducing the factors that contribute to terrorism in the first place.

 

As regard to concrete plans for the future, the new government aims to continue many of the activities undertaken by its predecessor. This includes a commitment to an integrated approach to the problem, which strikes a good balance between preventive and repressive measures at international level. Specifically, the government is advocating the following steps:

 

  1. underlying factors contributing to terrorism: The Netherlands will continue to work to strengthen the global dialogue between cultures and religions, lending its support to UN initiatives like the Alliance of Civilisations. In both bilateral and multilateral contexts, the Dutch government will engage in conflict prevention/management and reconstruction activities, such as those now taking place in Afghanistan. Another important aim is to support improvement of the quality of governance and the rule of law in relevant countries and programmes to enhance public administration in weak and failing states or regions. Given the implications of the terrorist threat for international peace and security, the Dutch agenda for the policy areas discussed above will be influenced by the magnitude of that threat for the foreseeable future.

 

  1. establishing legal norms: The Netherlands will continue to push for a Comprehensive Convention on International Terrorism (CCIT). Considering the laborious negotiation process, our position will have to be realistic and free of any impediments to further practical international cooperation. The Netherlands will also continue to press for additional improvements to legal protection in relation to action against terrorist financing. The recent refinement of the UN and EU sanction regimes is a good first step. The Netherlands will continue to fund projects that aim to bring practices in other countries more in line with international norms.

 

  1. coherence and architecture: The Dutch government remains committed to intensifying international cooperation, with regard to both policymaking and specific operations. In the context of the UN, the Netherlands will actively support the implementation of the Global Counterterrorism Strategy. Wherever possible, the government will lend its backing to UN organisations and wherever necessary, this country will press for changes. The new government will also assess whether the decision-making mechanisms within the EU should be modified (and if so, to what extent). In doing so, it will certainly take account of the upcoming AIV report on that subject. If nothing else, the Netherlands will continue to contribute to horizontal coordination to ensure the coherence of measures taken in the various pillars and the smooth implementation of the EU Plan of Action on Combating Terrorism. The emphasis will be on carrying out existing agreements, rather than formulating new measures.

 

  1. legal principles and legitimacy: At international level the Netherlands will continue to advocate effective and decisive counterterrorist measures. Regular evaluation of those measures is important. Two methods of doing so are EU peer evaluations and reports by the UN monitoring committees.

 

  1. human rights: The government renews its commitment to the observance of human rights standards and international humanitarian law in the fight against international terrorism, including the full enforcement of the absolute ban on torture. Within the UN, the Netherlands will support resolutions and other motions to that end, and within the EU and in its bilateral relations, the Dutch government will call individual countries to account if there are indications that individuals in those countries are being subjected to torture or other cruel, inhuman or degrading treatment or punishment. Existing and new operational instruments for furthering counterterrorism policy will be assessed according to their compatibility with the corpus of human rights law. Particular attention will be devoted to the protection of personal data, in negotiations on sharing counterterrorism intelligence in the context of the Schengen acquis (SIS II and VIS) and in talks with third countries, such as the United States. It is our hope that an even more robust human rights corpus can be achieved through rigorous enforcement and compliance with existing standards.

 

 

(Signed)

 

Bernard Bot

 

______________________

 

1      AIV, ‘Counterterrorism in a European and International Perspective’, interim report on the prohibition of torture, advisory letter no. 11, Dec. 2005.

2      See House of Representatives 30303, no. 20, ‘Government analysis of the European period of reflection’ and House of Representatives 2006-2007, 22112, no. 464: BNC file, Communication on the implementation of the Hague Programme; a policy memorandum by the Ministers of Justice, Immigration & Integration, the Interior, and Foreign Affairs on the application of the passerelle provisions in article 42 of the EU Treaty and article 67(2) of the EC Treaty, 22 November 2006.

3      See the Conceptual Framework on the ESDP dimension of the fight against terrorism, including preventive aspects, EC 14897/04, 18 November 2004.

4      House of Representatives 2005–2006, 30 315, no 3.

5      House of Representatives 2005–2006, 30 315, no. 2.

6      Senate 2006-2007, 28.764, F.

7      See also the response to the motion by MPs Van der Laan and Van Baalen; House of Representatives 22112, no. 205.

 

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