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Netherlands: Two New Sets of Administrative Sanctions Proposed to Fight Terrorism

(June 2, 2016) On May 17, 2016, the Dutch House of Representatives (Tweede Kamer) passed a draft temporary law put forward by the Ministry of Security and Justice (MSJ) that imposes administrative sanctions to help further combat terrorist-related activities. The draft legislation, whose short title is the Temporary Law on Counterterrorism Administrative Measures, was passed along to the Dutch Senate for deliberation and is now in the hands of the committee on security and justice, which is scheduled to hold an inquiry on the legislation on June 21, 2016. (Temporary Rules on the Imposition of Restraints on Persons Constituting a Threat to National Security or Intending to Join Terrorist Groups to Fight and on the Refusal and Withdrawal of Decisions [on applications for a grant, license, etc.] at Serious Risk of Being Used for Terrorist Activities (Temporary Law on Counterterrorism Administrative Measures), Dutch Senate website (May 17, 2016) (in Dutch); Brief Notes of Committee Meeting of Security and Justice (V & J) of May 24, 2016, Dutch Senate (Eerste Kamer) website (in Dutch).)

The draft law provisions would restrain the freedom of movement of persons who constitute a threat to national security or who intend to join a terrorist faction, in order to protect national security and contribute to the prevention of participation in or provision of financial support to Jihadism. (Dutch House of Representatives Approves Administrative Counterterrorist Measures, MSJ website (May 17, 2016); 34.359: Temporary Law on Administrative Measures Combating Terrorism, Dutch Senate (Eerste Kamer) website (last visited May 31, 2016) (in Dutch).)

The proposed measures permit the government “to impose a notification requirement, an area ban or a restraining order in response to practices that can be placed in connection with terrorist activities or support for them. Examples include contact with other radicalised people combined with a conspicuous interest in certain properties or events.”  (Dutch House of Representatives Approves Administrative Counterterrorist Measures, supra.)  The draft law would cover individuals who return from jihadist battles and who are deemed to be a threat to Dutch national security but who “have not (yet) been subjected to criminal investigation,” as well as to persons who “are strongly radicalised and willing to employ violence” but who have not left the Netherlands to join a terrorist militia.  (Id.)  When the ban is on a certain area or proximity to certain objects or to a part or parts of the Netherlands, the Minister of Security and Justice may apply technological means to monitor compliance with that the ban.  (Temporary Law on Counterterrorism Administrative Measures, art. 2a ¶ 1.)

In addition, the government could bar individuals from leaving the Netherlands when “well-founded suspicions” exist that they are planning to leave the Schengen area to join a terrorist organization.” The MSJ stressed, nevertheless, that the provisions “may only be imposed if they are necessary for national security reasons.”  (Dutch House of Representatives Approves Administrative Counterterrorist Measures, supra.)

Amendments to Citizenship Law to Combat Terrorism

On May 24, 2016, the Dutch House of Representatives passed a second item of legislation put forward by the MSJ to combat terrorist activities. This seeks to amend the Dutch Citizenship Law and would permit the government to withdraw Dutch citizenship, without there having been any prior criminal conviction, from jihadists who join terrorist organizations abroad.  According to the Ministry, “[u]pon returning to the Netherlands these jihadists may constitute a direct threat to national security,” and a rapid response is needed in such cases to prevent such persons from being able to return to the Netherlands.  (Lower House for Jihadist Dutch Citizenship Revocation, MSJ (May 24, 2016) (in Dutch); 34.356 (R2064): Withdrawal of Dutch Citizenship in the Interest of National Security, Dutch Senate website (last visited May 31, 2016) (in Dutch).)

The amending legislation states that the Minister of Justice and Security may require the revocation of the Dutch nationality of a person who has attained the age of 16 who voluntarily enters the armed services of a state engaged in combat operations against the Kingdom of the Netherlands or against an alliance in respect of which the Kingdom is a member.  The Minister may also withdraw the citizenship of a person of at least 16 years of age and who is outside the Kingdom if it appears from the person’s conduct that he or she has joined an organization that has been placed on a list of organizations participating in national or international armed conflict and deemed to be a threat to national security.  (34 356 (R2064): Amendment of the Dutch Citizenship Law in Connection with the Withdrawal of Dutch Citizenship in the Interest of National Security (Draft Law 34.356), proposed new provisions art. 14 ¶¶ 3 & 4, respectively, Dutch Senate website (May 24, 2016) (in Dutch).)

Thus, the proposal would make it possible for a person’s Dutch citizenship to be revoked as soon as he or she joined a group that appears on a (public) list of terrorist organizations that includes, for example, the Islamic State of Iraq and the Levant (ISIL) and Al-Qaeda. (34.356 (R2064): Withdrawal of Dutch Citizenship in the Interest of National Security, supra.)

In addition, the draft law provides for jihadists to be declared undesirable aliens once their citizenship has been revoked. (Lower House for Jihadist Dutch Citizenship Revocation, supra.)  According to the MSJ, the two new measures of withdrawal of citizenship and of declaration of being an undesirable alien complement the existing means of combatting terrorism and would prevent the lawful return of such persons to the Netherlands and to the Schengen area. (Id.)

The withdrawal of Dutch nationality will not be possible, however, if the individual would thereby become stateless; international conventions would not permit it, the MSJ pointed out. (Id.)  Thus, the possibility of revocation of citizenship is in practical terms limited to persons with dual nationality. (34.356 (R2064): Withdrawal of Dutch Citizenship in the Interest of National Security, supra.)

The legislation provides for judicial review of the decision on withdrawal of citizenship. If the individual himself does not lodge an appeal to the administrative court in the Hague within four weeks of the decision, the Minister of Security and Justice will notify the court, which “means that the court can always render a decision on such cases.”  (Lower House for Jihadist Dutch Citizenship Revocation, supra.)  There is also a further appeal available against the court’s decision to the Administrative Judicial Review Division of the Council of State. (Id.)  The Council of State is an independent advisory body on legislation and governance and the highest general administrative court in the Netherlands.  (Raad van Staat: The Council of State, Raad van Staat website (last visited May 31, 2016).)

Related Actions and the Action Program Against Jihadism

Only two months ago, the Dutch Parliament adopted the Law of March 5, 2016, Amending the Dutch Citizenship Law to Expand the Possibilities of Revoking Dutch Citizenship in Connection with Terrorist Crimes, which gave the Minister of Security and Justice the broadened authority to revoke the citizenship of anyone who had been convicted of facilitating the preparation or commission of terrorist crimes.  The Law entered into force on March 31.  (Rijkswet van 5 maart 2016 tot wijziging van de Rijkswet op het Nederlanderschap ter verruiming van de mogelijkheden voor het ontnemen van het Nederlanderschap bij terroristische misdrijven, STAATSBLAD VAN HET KONINKRIJK DER NEDERLANDEN [OFFICIAL GAZETTE OF THE KINGDOM OF THE NETHERLANDS], No. 121 (Mar. 30, 2016), Dutch Senate website; Decree of 22 March 2016 Establishing the Effective Date of the Law …, STAATSBLAD VAN HET KONINKRIJK DER NEDERLANDEN, No. 122 (Mar. 30, 2016) (in Dutch);  Wendy Zeldin, Netherlands: Possibilities for Revocation of Citizenship to Be Expanded, GLOBAL LEGAL MONITOR (Mar. 18, 2016).)  The May 24 legislation expands the Minister’s powers of revocation even further, therefore, by removing the requirement of a prior criminal conviction in the case of jihadists.

All these new items of legislation form part of the Dutch government’s Comprehensive Action Programme to Combat Jihadism. (MSJ, The Netherlands Comprehensive Action Programme to Combat Jihadism (Aug. 29, 2014), National Coordinator for Security and Counterterrorism website (click on link under “Relevant Documents”); Wendy Zeldin, Netherlands: Integrated Approach to Combatting Jihadism, GLOBAL LEGAL MONITOR (Nov. 7, 2014).) According to the MSJ, the Programme’s purpose “is to protect the democratic state under the rule of law, to counter and weaken the jihadist movement in the Netherlands and to eliminate the breeding ground for radicalisation.  It contains both preventative and repressive measures.  Both are of great importance to the government.”  (Dutch House of Representatives Approves Administrative Counterterrorist Measures, supra.)