Uitspraken

On 11 November 2015, the accused, from Syria, came to Germany to seek asylum. The accused left there again on 7 December 2015. When the accused had reported himself in the Netherlands in October 2019, equally for the purpose of applying for asylum, the Dutch police received information from Germany that an alert had been issued to the name of the accused.2 In Germany, suspicion had arisen that the accused had been active in Syria as a fighter and regional leader of Ahrar al-Sham.

A criminal investigation was subsequently launched against the accused in the Netherlands.

Purpose and ideology

Kata`ib Ahrar al-Sham was founded in November 2011 as an alliance of brigades operating in particular in northern Syria. Founders of the organisation - which was later renamed Harakat Ahrar al-Sham al-Islamiyya - are former Islamic political prisoners and fighters in Iraq who were imprisoned in the notorious Sednaya prison north of Damascus under Al-Assad's rule. Ahrar al-Sham leader Hassan Abboud stated in an interview with Al-Jazeera on 9 June 2013 that Ahrar al-Sham is a radical Islamist movement that sought to contribute to and shape a Syrian national uprising or revolution against the authoritarian and repressive regime of Bashar al-Assad, with the aim of creating an ‘Islamic state’ based on Islamic law, the sharia.3 Abboud strove for a Sunni version of Iran: a theocratic republic overseen by religious scholars. The policy was not to make laws, but to allow sharia laws to apply.4

Ahrar al-Sham established judicial and administrative structures in the areas that it controlled from 2013, guided by the sharia.5 In 2014 and 2015, the organisation had a varied administrative presence in conquered areas in Syria.6

Ahrar al-Sham bestows upon the sharia a much wider scope than the Syrian Arab Republic that applies the sharia to what is considered family law here.7 According to Abboud, the sharia is a vision of life and does not only include the aspect of offence and punishment, but also considers worldly affairs and social relations.8 In July 2016, Amnesty International stated that some groups in Idlib, such as Jabhat al-Nusra and Ahrar al-Sham ‘have imposed a strict interpretation of Shari`a and imposed punitive measures on perceived infractions.’9

Ahrar al-Sham initially followed the sectarian worldview and the agenda of sectarian hatred against Shiites and Alawites. Besides military actions/operations by the group against the Al-Assad regime, FSA brigades, Kurds and the Islamic State, these also targeted the Alawite and Shia civilian population.10 In the aforementioned interview with Al-Jazeera, Hassan Abboud called for the use of force against Alawite or Shia populations.11 After the summer of 2013, the sectarian discourse was tempered, without distancing itself from its previous explicitly sectarian violence. Thus, the group continued to see itself as a last bastion for the defence of Sunni Islam against the advancing Shia enemy, a form of defensive sectarianism.12

It did not distance itself either from the violence of its allies including Jabhat al-Nusra13, with which organisation (from July 2016 under the name of Jabhat Fatah al-Sham) Ahrar al-Sham continued intensive military cooperation until 2017.14 In the course of 2015, for example, Ahrar al-Sham participated in several coalitions that Jabhat al-Nusra had entered into with combat groups, and turned out to be a loyal ally.15

In September 2015, a new leader of Ahrar al-Sham was elected (Muhannad al-Misri), and there was an internal reorganisation affecting important bodies and key figures (who, among other things, were thanked for services rendered). That there was discord transpired before and during the Riyadh talks, where a representative group from the opposition to the regime had to be assembled for the peace negotiations. Although this discord was present before and during Riyadh and at a later stage would lead to several rifts within Ahrar al-Sham, the positions on the themes of the Riyadh talks were still fairly uniform.16

After the signing of the so-called Riyadh declaration on 10 December 2015, a reorientation in Ahrar al-Sham's modus operandi could be noted (e.g. fighting IS instead of cooperating with it, and the nationalist element taking precedence over the sectarian one), but this never represented a ‘180-degree turn’ in terms of Ahrar al-Sham's objectives.17 Even after its signing, senior leaders within Ahrar al-Sham rejected this declaration and the struggle continued as a religious one. In May 2016, Ali Omar, deputy head of the organisation, revealed that a political solution was not possible, while adding, ‘So that's why what's come to the fore now is the sound of the bullet - jihad on the path of God.’18

Hostilities

While the armed conflict in Syria was already taking place before Ahrar al-Sham manifested itself in it, armed struggle also became the primary means for Ahrar al-Sham to achieve its goals.19

In October 2012, Ahrar al-Sham was allegedly one of the fastest-growing combat groups in Idlib and had at the time also expanded its presence to Latakiya, Aleppo and Hama. Of the combat groups present there, the group was allegedly the strongest in the use of explosives, mines, and bomb cars at that time. In 2014, Al-Jazeera estimated the number of the organisation's fighters at 25,000.20

Ahrar al-Sham, Jabhat al-Nusra and ISIS took part in an offensive in the Syrian province of Latakia in August 2013. This province is considered to be the heart of the regime because the Al-Assad family is originally from a village in this region and 80 percent of the population are Alawites. In the process, a massacre of civilians - including children, women, and elderly people - took place. After their execution, they were thrown into mass graves. Although it cannot be established with certainty that Ahrar al-Sham actively participated in the massacre, Ahrar al-Sham did take part in the offensive and helped fund it. Moreover, Ahrar al-Sham never distanced itself from the massacre, nor did it condemn its allies for it. Ahrar al-Sham can therefore be held co-responsible for this sectarian massacre,21 just as it can be held responsible for taking civilians hostage.22

Ahrar al-Sham has also been guilty of taking civilians hostage since then. The independent International Commission of Inquiry on the Syrian Arab Republic has reported that Ahrar al-Sham deliberately selects women and children to take hostage and exchange them for prisoners taken by the enemy.23

Although from 2015-2016, Ahrar al-Sham's actions changed in terms of an increasingly pragmatic and moderate implementation of the sharia and reduced involvement in sectarian violence, even after 2015, Ahrar al-Sham failed to refrain from committing war crimes and crimes against humanity.24

Between March 2015 and February 2016, Ahrar al-Sham held men, women, and children hostage in Idlib. From 2013 until July 2016, women were detained in Douma by the agency of armed groups, including Ahrar al-Sham. The women were part of a group of Alawite civilians held hostage and were pressured in prison to convert to Sunniism.25 Until February 2017, there were human rights violations by the entire set of armed groups in control in Aleppo, including Ahrar al-Sham.

In 2016 and 2017, Ahrar al-Sham continued to pursue its main goal of overthrowing the regime by military means and halting the advance of pro-regime forces, with Russian air support. Throughout 2016, the group continued to fight with these objectives together with Jabhat al-Nusra under the Jaysh al-Fatah umbrella, including in Idlib, Aleppo and Hama. Equally in the period 2016-2017, Ahrar al-Sham allegedly committed war crimes and crimes against humanity including the deliberate killing of civilians, hostage-taking, torture of prisoners (of war), firing on civilian targets, arbitrary detention of civilians, and recruiting and using children for military purposes.26

In 2016, it was reported that armed groups, including Ahrar al-Sham, had taken dozens of civilians hostage in Idlib in March 2015. Until February 2016, Ahrar al-Sham reportedly had held 55 hostages, including women and children, and beaten and mistreated some of them with electric shocks. The hostages received little food, no medical care, and no access to sunlight.27

Finally, Ahrar al-Sham (under the umbrella of the Islamic Front) was involved in the siege of towns and villages from 2012 up to and including 2016. The aim of this included putting pressure on the inhabitants of a town.28 In the process, civilians were denied medical and humanitarian aid. 29

Fuaa and Kefraya

In March 2015, the villages of Fuaa and Kefraya - two mainly Shia villages in Idlib province - were besieged by rebels, using artillery. Beside Jabhat al-Nusra, Ahrar al-Sham also participated in the siege, which lasted until December 2015 and led to a humanitarian crisis in the two villages.30 During this siege, it was Ahrar al-Sham that threatened with reprisals against civilians and Iranian fighters as retaliation in case the regime continued to attack civilians in Idlib.31 Amnesty International stated in November 2017 with regard to the enclaves of Fuaa (also known as Foua) and Kefraya:

‘The Ahrar al-Sham Islamic Movement and Hay'at Tahrir al-Sham besieged the residents of Kefraya and Foua, restricting their access to humanitarian and medical aid. They also carried out unlawful attacks, using explosive weapons that should not be used in densely populated areas as they lack the ability to be aimed at a specific target. Some of these violations amounted to war crimes.’ 32

With regard to the attacks on these localities, the UN stated that Jaysh al-Fatah (the alliance to which Ahrar al-Sham also belongs, see below) deployed nine VBIEDs (Vehicle-Borne Improvised Explosive Devices) and fired more than 1,200 rockets at the Shiite enclaves on 19 September 2015. This killed 60 people and injured 300.33 In April 2016, civilians (presumably Shiites) who were being evacuated from Fuaa and Kefraya were also targeted via a VBIED attack. Although Ahrar al-Sham has always denied responsibility, it was indeed involved in the siege of Fuaa and Kefraya.34

Battle of Al-Ghab

The battle on the Syrian plain of Sahl al-Ghab (hereinafter also: Battle of Al-Ghab) was initiated by several rebel groups, including Ahrar al-Sham, around April 2015. During this period, they achieved victories in nearby Idlib city and Jisr al-Shughur. In so doing, they advanced from the north-eastern Al-Ghab plain to the west and southwest. The rebel groups were hoping as a result to overrun military regime bases on the Al-Ghab plain and checkpoints concentrated in (Alawite) pro-regime villages, so that they no longer posed a threat to rebel-controlled villages and areas, and to then be able to advance to Latakia, the regime's mainly Alawite heartland to the west, and/or to Hama to the south.35 On the Al-Ghab plain, the Al-Assad regime had to make its sparse troops withdraw as far as Joureen, where a military base was located.36

On the opposition side, a local branch of the FSA and a coalition of rebel groups under the name Jaysh al-Fath fought alongside other local armed groups. Jaysh al-Fath was formed in March 2015 on the initiative of Ahrar al-Sham and with the cooperation of Jabhat al-Nusra. Within this coalition, Jund al-Aqsa, Jabhat al-Nusra and Ahrar al-Sham were the main groups.37 The command of Jaysh al-Fath was shared between Jabhat al-Nusra and Ahrar al-Sham.38

Most of the groups were united in the Jaysh al-Fatah coalition/Tahrir Sahl al-Ghab Operations Room. The latter served to coordinate military operations in the area. However, the various groups continued to play their own roles and retain their own responsibilities due to ongoing disagreements within Jaysh al-Fatah (particularly tensions between Ahrar al-Sham and Jund al-Aqsa) and because coalition members provided their own troops and weapons.

The combat group Liwa' al-Adiyat operated both as a brigade of Ahrar al-Sham and independently. In the latter capacity, it maintained early close ties with Ahrar al-Sham that presumably went beyond mere cooperation in military operations. During the offensive on the Sahl al-Ghab, the Liwa' al-Adiyat brigade presented itself as part of Ahrar al-Sham.39 During the offensive on the Al-Ghab plain, Ahrar al-Sham was one of the groups involved in the fighting in and around the locality of Al-Ziyara.40

Extensive research has been conducted into the accused's social media use. Twitter account [Twitter account name], of which the Court of Appeal established above that the accused is the administrator, was inter alia used to write or share the following tweets.

On 22 May 2015, the account posted a photo of a white pickup truck containing a number of lifeless male bodies in combat clothes and at least one weapon, with the accompanying tweet: ‘They got the car dirty. It needs seven washes with earth to be driven. Corpses of the dogs of the regime in Jisr al-Shughur.‘.67

On 23 May 2015, [Twitter account name] posted two tweets about Jaysh al-Fatah: ‘Our army Jaysh al-Fatah has conquered from them, robbed the regime and Daesh of their belongings, do not be merciful to their members, oh Jaysh al-Fath, you have crushed them’ and ‘The victories of Jaysh al-Fatah has shocked the whole world and the governments, made the oppressors shudder and knocked down Daesh’.68 As set out above, Jaysh al-Fatah was a coalition of Jund al-Aqsa, Jabhat al-Nusra, and Ahrar al-Sham.

On 13 September 2015, [Twitter account name] tweeted: ‘Our beloved movement and its new leaders should reveal the movement's greatest enemy, namely the secret of the murder of our leaders may Allah have mercy on them.’ Investigations revealed that the photo that was shared with the tweet was a photo showing the leaders of Ahrar al-Sham.69

On 26 September 2015, the account shared a tweet from account [Twitter account name 1]': ‘Greetings from Al-Qassam brigades to Harkat Ahrar al Sham al-Islamiyya’. Another tweet read, ‘Ahrar al-Sham battalions, [nickname 2], May Allah accept him and the martyrs.’70

Legal framework

International humanitarian law applies when there is an armed conflict in the territory of one of the contracting parties.

A distinction is made between international armed conflicts and non-international armed conflicts. The rules for these two types of conflict differ in parts. A key distinction is that for the determination of a non-international armed conflict, there are requirements as to the intensity of the armed conflict.

Over the years, the ICTY has elaborated on the concept of 'non-international armed conflict' in its case law and developed criteria for assessing whether it exists. For example, the intensity of the conflict needs to be of the level of protracted armed violence and the armed groups involved need be sufficiently organised.73

Factors that may be relevant in determining the intensity of a conflict include the number, the duration, and the intensity of the individual confrontations; the type of weapons and other military equipment; the amount and calibre of ammunition fired; the number of persons and the type of armed groups participating in the fighting; the number of casualties; the extent of the material damage; and the number of refugees from the combat zones. The involvement of the UN Security Council can also be an indication of the intensity of the conflict.74

Inter alia the following factors are important in determining the degree of organisation of the armed groups: the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of headquarters; the circumstance that the group controls a particular territory; the ability to provide the group with access to weapons and other military equipment, recruitment, and military training; the ability to plan, coordinate, and conduct military operations, including troop movements and the related logistics; the ability to determine a unified military strategy, and the use of military tactics; and the ability to speak with one voice, and to negotiate and enter into agreements (e.g. a ceasefire or a peace agreement).75 A state is presumed to have armed forces that meet these organisational requirements.76

Determining whether a non-international armed conflict exists is to a large extent a factual assessment that depends on the circumstances of the case.77 It must be established that the accused was aware of the factual circumstances constituting the armed conflict.78

Assessment by the Court of Appeal

In previous case law, the Court of Appeal already established that a non-international armed conflict existed between Syrian government forces and various organised armed groups in Syria from 2012 up to and including 31 December 2015 - thus also during the period of the charges under Count 1.79

This involved Ahrar al-Sham as one of the belligerent parties. The Court of Appeal deems Ahrar al-Sham sufficiently organised to classify as an organised armed group, as is evident from what has been set out under 8.2. For instance, during the period to which the indictment relates, Ahrar al-Sham had inter alia a clear command structure, had territorial control, possessed weapons, carried out military operations alone or in conjunction with allies, and participated in peace negotiations. Thus, the organisational requirement was also met.

Since the period to which the indictment relates a non-international armed conflict existed, the Court of Appeal is of the opinion that international humanitarian law - in particular CA 3 and the rules of customary international law - apply.

Based on the accused's own statement, the Court of Appeal further establishes that he had knowledge of the armed conflict in Syria.

Legal framework

International humanitarian law determines inter alia which persons are protected at the time of international and non-international conflicts.

CA 3 defines them as persons who do not (or no longer) participate directly in the hostilities. This refers to civilians, but also includes personnel of armed forces who have laid down their weapons and person who were placed hors de combat by sickness, wounds, detention, or any other cause.80 The ICTY further determined in the Boškoski and Tarčulovski case that the following must be established:

‘[T]he perpetrator of a Common Article 3 crime knew or should have been aware that the victim was taking no active part in the hostilities when the crime was committed.’ 81

The ICC's Elements of Crimes provide that the victim need not be personally aware of the conduct and deceased persons can also be victims of this crime.82

By contrast, the accused needs to have been aware of the factual circumstances that form the basis of the aforementioned (protected) status.83

Assessment by the Court of Appeal

Given the specific conduct included in the indictment, Count 1 relates to what can be seen in video 1.

The Public Prosecution Service has argued that it is evident that, at the time the offences were committed, none of the victims - all deceased – were participating directly in the hostilities and that they were thus protected persons within the meaning of CA 3. The defence counsel has argued that deceased persons cannot be regarded as persons within the meaning of Article 6 of the WIM and as such do not enjoy protection within the meaning of CA 3. The Court of Appeal has ruled as follows.

CA 3 protects anyone who does not or no longer actively participates in hostilities related to the armed conflict. This stipulation is also part of customary international law. In practice, this means that civilians, combatants who have laid down their weapons or combatants who are hors de combat, e.g. because they have been captured or are sick or wounded, enjoy protection.

In the present case, the Court of Appeal finds that, in view of the clothing and equipment of the persons involved visible in video 1, the references to and expressions of joy with regard to the victims by those present, and the general context in which they all find themselves, it is sufficiently plausible that the deceased persons were combatants, belonging to a (different) party within the conflict. That the latter, also referred to as ‘the bodies of Al-Assad's dead’ in the video, were already hors of combat at the time of the conduct to which the indictment relates and thus no longer actively participating in hostilities is not in dispute. Who killed them is irrelevant here - indeed, the act charged under 1 took place after the victims’ deaths.

Unlike the defence counsel, however, the Court of Appeal finds that deceased persons do enjoy protection within the meaning of CA 3, despite this not being specifically mentioned as an example in CA 3. The protected interest - the dignity of the individual - belongs to all those who cannot be excluded from protection on the basis of direct participation in hostilities.84 Here, it is of importance not to lose sight of the raison d'être of the protection - respect for human dignity – just as the ICTY rules in Furundžija.85 Indeed, the aim is to protect the individual from assaults on his personal dignity regardless of whether such assault arises from an unlawful attack on the body or from humiliating and impairing a person's honour, self-respect or mental well-being.86 The Court of Appeal fails to see that such personal dignity can no longer exist once a person is deceased.

The deceased victims were therefore among those persons protected by CA 3 and customary humanitarian law.87

Legal framework

The prohibition of outrages on personal dignity, by (in particular) degrading and humiliating treatment, as charged under 1, is also enshrined in CA 3. This prohibition has been reaffirmed in the Additional Protocols and is considered to be valid customary international law. However, neither the Geneva Conventions nor the Additional Protocols define outrages upon personal dignity.88

With regard to outrages upon personal dignity, the ICTY formulated the following definition in the Kunarac case:

‘The accused intentionally committed or participated in an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity.’89

In other words, the outrage may involve an intentional act but also an omission that has caused severe humiliation or otherwise a serious outrage upon human dignity. This assessment should consider subjective criteria, such as the victim's vulnerability,90 but also objective criteria related to the severity of the act.91

The ICC's Elements of Crimes consider the relevant aspects of the victim's cultural background.92 As a result, conduct that, for example, is degrading to someone of a particular nationality, culture, or religion, while not necessarily so to others, also falls within the scope of the concept of outrages upon personal dignity.93 It is a case-by-case assessment.94

As with cruel or inhuman treatment, outrages upon personal dignity may consist of a single isolated act but may also result from a combination or accumulation of different acts which, taken individually, would not qualify as cruel or inhuman treatment. The Court of Appeal adopts what was determined by the ICTY in the Aleksovski case:

‘The seriousness of an act and its consequences may arise either from the nature of the act per se or from the repetition of an act or from a combination of different acts which, taken individually, would not constitute a crime within the meaning of Article 3 of the Statute. The form, severity and duration of the violence, the intensity and duration of the physical or mental suffering, shall serve as a basis for assessing whether crimes were committed.’95

As already established, the humiliation must be severe, but it is not a requirement that the outrage have lasting consequences.96A fleeting act of misconduct may also be serious.97 Nor is special intent required, as is the case with torture.98

The Court of Appeal only cited those elements of outrage upon personal dignity by humiliating and degrading treatment from case law that are relevant to the assessment of what the accused has been charged with in the present case. This is not an exhaustive enumeration.

Assessment by the Court of Appeal

The defence counsel has disputed the argument that the seriousness of the acts is sufficient to constitute - especially towards deceased persons - degrading or humiliating treatment affecting personal dignity. The Public Prosecution Service has argued that the acts - certainly when considered in combination with one another - were of such a nature as to constitute outrages upon personal dignity. In this regard, the Court of Appeal has ruled as follows.

Insofar as relevant here, video 1 shows that the government soldiers killed are surrounded by fighters of Ahrar al-Sham. They shout slogans, chant and comment on their own success and the defeat of the government soldiers in the battle of Al-Ghab. The soldiers killed are reviled and insulted. For a moment, one of the fighters puts his foot on one of the bodies. The accused moves his leg towards one of the bodies, and two persons spit in the direction of the bodies.

These acts by the fighters are extremely distasteful and demonstrate a disrespectful attitude towards the deceased soldiers. This does not necessarily mean that there has been an ‘outrage upon personal dignity, in particular humiliating and degrading treatment’ within the meaning of Article 6, paragraph 6 under c of the WIM. The bar for that is higher. The Court of Appeal will elucidate this point.

Despite the deceased enjoying protection under CA 3, they cannot be said to be suffering severely physically or mentally. Furthermore, the video shows that the bodies and their uniforms remain virtually untouched. They appear to be shown as they were found. They are indeed depicted but not (and in contrast to in an earlier case that the Court of Appeal ruled on99) displayed as trophies. The Court of Appeal further has considered the fact that the actions of the fighters summarised above last only a few minutes. The foot being placed on a body, the leg being moved, and the spitting take place once and twice respectively and always within a brief moment. One has to play the video several times to notice these actions. The fighters do not pay specific attention to this. Nor does the person filming. The emphasis is on celebrating victory at the expense of the deceased soldiers. All this detracts to some extent from the gravity of the fighters' behaviour.

Finally, the Court of Appeal considers that the interests of surviving relatives may also play a role in the question of whether an outrage upon personal dignity has taken place. In the current case, the file provides no information on this aspect; no indication as to whether the soldiers were recognised, or otherwise revealing anything about their identity or possible relatives. Therefore, the Court of Appeal cannot further consider the interests of surviving relatives in this case.

The conclusion is that the acts described are disrespectful, but in this case do not constitute ‘outrages upon personal dignity’, as explained against the background of inter alia authoritative statements by the ICTY.

In view of the above, the Court of Appeal does not deem the charge under 1 to have been legally and convincingly proven and will acquit the accused thereof.

Under these circumstances, the Court of Appeal has excluded any discussion as to the requirement of nexus.

Legal framework

In Article 83a CC, terrorist intent is defined as the intent to instil serious fear in a country’s entire population or a specific group thereof, or to unlawfully force a government or international organisation to do, not do or to tolerate something, or to seriously disrupt or destroy the fundamental political, constitutional, economic, or social structures of a country or an international organisation.

The offence under Article 140a CC is not about the actual commission of terrorist offences but about the 'intent' to commit those offences. For that intent, the organisation's prime short-term objective may also suffice. It is not required that the commission of terrorist offences be the organisation's main raison d'être.

For intent to be proven, inter alia significance can be given to offences that have already been committed within the framework of the organisation, to the more sustained or structured nature of the cooperation - as may be evidenced by the mutual division of work or the mutual coordination of activities among participants within the organisation with a view to achieving the organisation's common purpose - and, more generally, to the planned or systematic nature of the activities of participants carried out for this purpose within the organisation.

In previous cases, this Court of Appeal has classified Ahrar al-Sham as a terrorist organisation.100 The Court of Appeal sees no reason to go back on this judgment and will explain why in the following. The conclusively evidenced period in those cases differs from the present one; therefore, the focus in the following will be on the period after 31 December 2014.

Assessment of the Court of Appeal

Ahrar al-Sham’s intent

Ahrar al-Sham’s intent can be inferred inter alia from the statements of its leader and the offences already committed within the framework of this organisation.

Ideology and objective
Based on the findings made by the Court of Appeal above, Ahrar al-Sham can be called a radical Islamist movement, aimed at overthrowing Bashar al-Assad's regime in order to create an ‘Islamic state’ based on the sharia. After 2013, the sectarian discourse was toned down, but at the same time it was not renounced, and defensive sectarianism persisted.

Armed struggle was the primary means for Ahrar al-Sham to achieve its goals. In so doing, Ahrar al-Sham continued to cooperate intensively with terrorist organisation Jabhat al-Nusra and its successors until 2017.

Offences committed

Ahrar al-Sham has perpetrated (war) crimes. It can - contrary to what the counsel has argued - be held jointly responsible for the massacre in Latakia in August 2013, in which many Alawite civilians were slaughtered.

In addition, Ahrar al-Sham can be held responsible for taking civilians hostage, such as from 2013 until July 2016 in Douma and between March 2015 and February 2016 in Idlib. The hostages received little food, no medical care, and no access to sunlight. Until February 2017, there were human rights violations on the part of the entire set of armed groups that had control in Aleppo, one of which was Ahrar al-Sham.

Finally, Ahrar al-Sham was involved in besieging towns and villages from 2012 up to and including 2016, putting pressure on the inhabitants of a town and denying medical and humanitarian aid. Artillery was used in those sieges and rockets were fired at the Shiite enclaves. It was Ahrar al-Sham that threatened to retaliate against civilians in case the regime continued to attack civilians in Idlib. That the siege may sometimes (as in Fuaa and Kefraya) have been motivated by the reality of the conflict rather than by ideological, sectarian considerations, which Verhelle points out (see pp. 11 and 12 in the expert report for Ms Buruma LLM), in no way changes this.

Conclusion with regard to intent

From the above, it transpires that in the conclusively evidenced period, Ahrar al-Sham had a terrorist intent within the meaning of Article 83a CC. The organisation not only had the aim of overthrowing Bashar al-Assad's regime and establish an 'Islamic state', but also of instilling fear in part of the population. To achieve these goals, the organisation committed several of the terrorist offences listed in Article 83 CC and detailed in the indictment, such as murder and manslaughter.

The defence counsel has pointed extensively to - in short - a more moderate course pursued by Ahrar al-Sham after 2013. However, it is clear from the previous findings that, in the conclusively evidenced period, Ahrar al-Sham still wanted to achieve its goals through violence, and to this end collaborated with a terrorist organisation such as Jabhat al-Nusra. For the evidence proving terrorist intent, the Court of Appeal also took into account the offences that were still being committed then and which the Court of Appeal - unlike the defence counsel - does not characterise as merely incidental. This cannot be interpreted otherwise than as partly aimed at instilling fear in the population, especially the Shiite part.

That the aim pursued by Ahrar al-Sham was also to overthrow a regime that was abject in the eyes of many, as argued by the defence, does - if correct - not affect (the unlawfulness of) the intent, since this was also aimed at instilling fear in the population, and was combined with the commission of the aforementioned offences.

The Court of Appeal dismisses the defence.

Participation and acts of support

The defence counsel argued that the accused did not (at least not after November 2015) belong to the alliance and did not perform any participatory actions.

Legal framework

Participation in a criminal organisation whose aim it is to commit terrorist offences within the meaning of Article 140a CC can only exist if the person concerned belongs to the alliance and participates in actions, or supports actions aimed at or directly related to achieving the aim referred to in that article.

A participatory action may consist of the (co-)commission of any offence, but also of aiding and abetting and (thus) the performance of acts that are not punishable in themselves, as long as the aforementioned participation or support can be said to exist.

There is no requirement for the person concerned to be found to have cooperated with or to be familiar with all other persons who are part of the organisation or that the composition of the alliance is always the same. Participation must be assessed in isolation for the person concerned. It is therefore irrelevant, for example, whether other persons did more or played a more important role than the person concerned.

Finally, for participation, it is sufficient that the person concerned be generally aware (in the sense of unconditional intent) that the organisation’s objective was to commit terrorist offences. The person concerned does not need to have knowledge of one or more concrete offences intended by the organisation.

Assessment by the Court of Appeal

Participatory actions

In video 1 discussed earlier from Liwa' al-Adiyat as part of Ahrar al-Sham, the accused, looking into the lens, armed and in uniform, reported on the latest conquests in the battle of Al-Ghab. He did so in firmly religious terms. The bodies on the ground were referred to as the ‘dogs of Assad’, arrested and then killed by ‘the lions of our lord Muhammad’. The accused and the others speaking in the video spoke condescendingly about the opponents who had been shot dead, and whose Alawite origin is apparently an important factor in this.

Actively fighting alongside Ahrar al-Sham as well as the actions observed in these videos are directly related to the realisation of Ahrar al-Sham's objective, as depicted above. Indeed, the battle of Al-Ghab being waged against the Al-Assad regime, which Ahrar al-Sham sought to overthrow. In addition, given the wording used therein for the victims (dogs and carcasses, three Alawites), the video manifests sectarian-motivated violence.

Thus, the accused made himself de facto available for and actually contributed to the armed struggle. Apparently, the accused himself also felt that he had played an important role in this struggle, partly in view of the role of emir that he ascribed to himself. Moreover, by allowing himself to be filmed in the manner seen in the videos, the accused contributed to spreading the terrorist ideology of the organisation and promoting it. The same applies to his Twitter behaviour on social media.

Knowledge of terrorist intent

The accused generally knew that this organisation's objective was to commit terrorist offences. It is a fact of general knowledge that during the period to which the indictment pertains, but also before that period, jihadi combat groups were systematically committing serious offences on a large scale, terrorising the population living in Syria. Particularly as a fighter, the accused, who was moreover well versed in social media, must have known about this. His comment in the voice message to [witness A] in relation to video 1 (look what we did to the people) illustrates this. The Twitter behaviour described above shows not only that the accused felt an affinity with the organisation, but also that in the conclusively evidenced period he was well informed about the organisation, its members, and its alliances.

If the question whether Ahrar al-Sham was not included as a terrorist organisation on international sanctions lists at that time - to which, incidentally, other criteria apply - and the question whether the accused believed that it was (also) directed against an abject regime should be answered in the affirmative - the Court of Appeal leaves the answer unanswered here - this does not carry sufficient weight when set against the above considerations.

In view of the above, the Court of Appeal is therefore of the opinion that it can be legally and convincingly proven that the accused committed the offences of the charges under Count 2.

Unlike the Public Prosecution Service, the Court of Appeal does not deem it legally and convincingly proven that the accused was still part of Ahrar al-Sham in the period after 10 November 2015, so that he should be acquitted thereof.