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ECLI:NL:RBDHA:2021:9933

Instantie
Rechtbank Den Haag
Datum uitspraak
29-06-2021
Datum publicatie
10-09-2021
Zaaknummer
09/748012-19 and 09/748012-19-P (joined at the hearing)
Rechtsgebieden
Strafrecht
Bijzondere kenmerken
Eerste aanleg - meervoudig
Inhoudsindicatie

.

Vindplaatsen
Rechtspraak.nl
Verrijkte uitspraak

Uitspraak

THE HAGUE DISTRICT COURT

Criminal law

Full Trial Chamber

Case numbers : 09/748012-19 and 09/748012-19-P (joined at the hearing)

Judgement date : 29 June 2021

Judgement in a defended action

(Promis Judgement)

On the basis of the indictment and following the examination in court, the District Court of The Hague rendered the following judgement in the case of the Public Prosecutor against defendant:

[name defendant],

born on [date of birth] in [place of birth],

currently detained at the Penitentiary Institution [place].

Investigation reference: 26Humble

INDEX

1. Hearing in court 5

2. Indictment and preliminary observations 5

2.1 Indictment 5

2.2 Difference in assessment of terrorist crimes and war crimes 5

2.3 Reading guide 6

3. Jurisdiction 6

3.1 War crimes 6

3.2 Sanctions Act 1977 7

4. Indictment I: establisment of the facts 7

4.1 Introduction 7

4.2 Position of the Public Prosecution Service 7

4.3 Position of the defence 8

4.4 The evidence 8

4.4.1 With regard to the conflict in Syria and Iraq and the Islamic State combat group 8

4.4.2 Telegram, data carriers and intercepted communications (OVC) 13

4.5 Interim conclusions of the Court 38

5. Indictment I: participation in a terrorist organisation and in a criminal organisation whose object is to commit war crimes (count 1) 41

5.1 Introduction 41

5.2 Position of the Public Prosecution Service 42

5.3 Position of the defence 42

5.4 Assessment of the charges 43

5.4.1 Organisation 43

5.4.2 Object to commit terrorist crimes 44

5.4.3 War crimes: considerations regarding the applicability of the international humanitarian law 45

5.4.4 Object to commit war crimes 47

5.4.5 Participation 50

5.4.6 Complicity 53

5.4.7 Conclusion 54

5.5 Judicial finding of facts 54

6. Indictment I: Committing the war crime referred to as outrages upon personal dignity (count 5) 55

6.1 Introduction 55

6.2 Position of the Public Prosecution Service 55

6.3 Position of the defence 55

6.4 Assessment of the charges 56

6.4.1 Legal framework 56

6.4.2 Assessment 56

6.5 Conclusive evidence 59

7. Indictment I: Incitement and dissemination for incitement to a terrorist crime and to a war crime (counts 3 en 4) 61

7.1 Position of the Public Prosecution Service 61

7.2 Position of the defence 61

7.3 Assessment of the indictment 61

7.3.1 Introduction 61

7.3.2 Legal framework 62

7.3.3 Observations regarding the charges 63

7.3.4 Incitement and dissemination for incitement to commit terrorist crimes: preliminary considerations 64

7.3.5 Are the messages inciting in terms of content to commit terrorist crimes?. 64

7.3.6 In view of the context, are videos a, c and e still inciting to commit terrorist crimes? 70

7.3.7 Incitement and dissemination for incitement to commit war crimes 71

7.3.8 Final considerations 71

7.4 Conclusive evidence 72

8. Indictment I: training for committing a terrorist crime (count 2) 77

8.1 Position of the Public Prosecution Service 77

8.2 Position of the defence 78

8.3 Assessment of the charges 78

8.3.1 Introduction 78

8.3.2 Legal framework 78

8.3.3 Assessment 79

8.4 Conclusive evidence 82

9. Indictment II: violation of the Sanctions Act 1977 in conjunction with the Sanctieregeling Terrorisme 2007-II (Netherlands Regulation on Sanctions for the Suppression of Terrorism) 82

9.1 Position of the Public Prosecution Service 83

9.2 Position of the defence 83

9.3 Assessment of the charges 83

9.3.1 Introduction 83

9.3.2 Legal framework 83

9.3.3 The evidence 84

9.3.4 Assessment 86

9.4 Conclusive evidence 87

10. Criminality of the proven facts 87

11. Liability for punishment of the defendant 87

12. Imposition of the penalty and measure 87

12.1 The demand of the Public Prosecution Service 87

12.2 Position of the defence 87

12.3 Assessment of the Court 88

12.3.1 Seriousness of the offences 88

12.3.2 The defendant as a person 89

12.3.3 Disorder and accountability 93

12.3.4 Hospital order (tbs) with compulsory treatment? 93

12.3.5 Punishment to be imposed 94

13. Seized items 94

13.1 Position of the Public Prosecution Service 95

13.2 Position of the defence 95

13.3 Assessment of the Court 95

14. Applicable statutory provisions 96

15. Judgement 97

Appendix I: Text of the indictment 100

Appendix II: Endnotes 110

1 The hearing in court

The hearing of the case in court took place during the sessions of 18 November 2019, 10 February 2020, 16 April 2020, 18 June 2020, 14 September 2020 and 3 December 2020 (all pro forma-hearings) and the sessions of 11 February 2021, 29 March 2021, 7 June 2021 and 21 June 2021 (substantive hearings).

The court has taken note of the demand of the public prosecutors mr. C.D. Kardol and mr. W.J. Veldhuis (hereinafter jointly: Public Prosecution Service) and of what has been put forward by the defendant and her lawyer, mr. Y. Özdemir (hereinafter: the defence).

2 Indictment and preliminary observations

2.1

Indictment

Two indictments were brought against the defendant, namely under public prosecutor's office number 09/748012-19 (hereinafter: indictment I) and under public prosecutor's office number 09/748012-19 P (hereinafter: indictment II), which state the charges against her. The charges in indictment I were amended at the hearings on 18 June 2020 and 29 March 2021. The text of the two (amended) indictments is attached to this judgement referred to as Appendix I.

In indictment I, in short, the defendant is accused of committing multiple terrorist crimes, namely participating in IS as a criminal organisation with the intent to commit terrorist crimes (terrorist organisation), collaborating and participating in training for terrorism and incitement and dissemination of incendiary writings/images to commit a terrorist crime. The criminalisation of these crimes aims to protect public order, in particular the protection of society against terrorist crimes. This also applies to the charges against the accused under indictment II, namely that she has violated the Sanctions Act 1977.

Under indictment I, the defendant is also charged with crimes that are also related to IS, namely participation in IS as a criminal organisation that (also) has the intention of committing war crimes, committing a war crime herself, namely assaulting the personal dignity, and incitement to commit war crimes.

2.2

Difference in assessment of terrorist crimes and war crimes

War crimes are violations of international humanitarian law, i.e. the entirety of rules that apply during (non-)international armed conflicts. International humanitarian law aims to protect persons who do not or no longer participate in hostilities in an armed conflict. The criminalisation of these crimes thus protects an interest that differs from that of terrorist crimes, which aim to protect public order.

The war crime charged against the defendant is punishable under the International Crimes Act, hereinafter: ICA). Article 1, fourth paragraph, of the ICA also provides that, among other things, incitement to a war crime and participation in an organisation whose object is to commit war crimes must be equated with a crime from the ICA. The ICA is a so-called lex specialis and with regard to the criminalisation of war crimes, it is inspired by the Rome Statute concerning the International Criminal Court. Where the judge in the assessment of terrorist crimes, all punishable under the Criminal Code (hereinafter: the Cc), mainly focuses on general (Dutch) law, when assessing war crimes the judge can orientate on the international law, in particular the Elements of Crimes of the International Criminal Court and the jurisprudence of the International Criminal Court and the international tribunals, such as the International Criminal Tribunal for the former Yugoslavia.

2.3

Reading guide

Now that the assessment frameworks for terrorist crimes and war crimes (and assimilated crimes) differ substantially from each other in certain respects, the court will set out these frameworks for each fact and each time state which facts and circumstances are important for the assessment of that fact.

Although the offences charged against the defendant are related, the court will deal with them in separate chapters because of the different assessment frameworks. It is inevitable that this will cause some repetition.

In Chapter 3, the court will first rule on jurisdiction. Then, in Chapter 4, it will determine the actual conduct that is important for the assessment of indictment I. This refers to the evidence on the basis of which the court arrives at these findings. Chapter 5 will then discuss participation in a criminal organisation for the purpose of committing terrorist offences and war crimes. Chapter 6 will look at the charged war crime ‘outrages on personal dignity.’ Subsequently, Chapter 7 will look at incitement and dissemination for incitement to a terrorist offence and a war crime. In this chapter reference will be made to evidence on the basis of which the court assesses the facts. Chapter 8 discusses the alleged training for committing a terrorist offence. Finally, the court will discuss indictment II in Chapter 9.

Reference to evidence is made in footnotes. In addition, endnotes refer to literature and case law.

3 Jurisdiction

3.1

War crimes

Under indictment I, count 1, second cumulative, and under count 5, the defendant is charged with committing war crimes in the Netherlands, but also in Syria and/or Iraq.

Pursuant to Article 15 of the International Crimes Act (hereinafter: ICA), the District Court of The Hague has jurisdiction to hear the charged war crimes.

Article 2 of the ICA provides that the Netherlands has jurisdiction over crimes under that Act that are committed outside the Netherlands if the defendant is a Dutch national, a foreign national treated as a Dutch citizen, or is located on Dutch territory. The defendant has Dutch nationality, so that the Netherlands has jurisdiction.

Insofar as the defence has still argued that the offences committed by the defendant were not sufficiently serious, so that there is no jurisdiction under the ICA, does not apply in view of the foregoing.

3.2

Sanctions Act 1977

Under indictment II, the defendant is accused of violating the Sanctions Act 1977 in the Netherlands and/or Turkey.

Article 13 of the Sanctions Act 1977 provides that Dutch criminal law is applicable to Dutch nationals who are guilty of an offence outside the Netherlands that has been made punishable by or pursuant to this Act. The Netherlands therefore also has jurisdiction over this fact.

4 Indictment I: establishment of the facts

4.1

Introduction

The criminal investigation against the defendant was started as a result of findings in another investigation called '26 Cochran' against the defendant [person involved 1] (hereinafter: [person involved 1]). Data relating to a Telegram user, who was known to [person 1] as '[first name defendant]', was found in his telephone, i.e. eleven Telegram chats in which jihadist material was shared and disseminated online.

In the current investigation called '26Humble', investigation was conducted into that person '[first name defendant]', into several Telegram profiles that could be traced back to the defendant and with which jihadist material was shared and disseminated. An investigation was also carried out into the contents of various data carriers that were seized from the defendant's home in Uithoorn. The defendant was arrested by the police on 10 October 2019.

The court will make factual findings in this chapter. The legal qualification that can be given in this respect will not yet be discussed.

4.2

Position of the Public Prosecution Service

The Public Prosecution Service has taken the position that there is sufficient legal and convincing evidence that the defendant made use of the different Telegram accounts: NesmuMutawahiddeen and GB, with which extremist jihadist material was disseminated and shared.

4.3

Position of the defence

The defence has taken the position that there is insufficient legal and convincing evidence that the defendant was the only person to make use of the different Telegram accounts NesmuMutawahiddeen and GB, now that the defendant had given her login details to third parties. The counsel does not dispute that extremist jihadist material was shared and distributed with those accounts, but does dispute that the defendant did so.

4.4

Evidence 1

4.4.1

With regard to the conflict in Syria and Iraq and the Islamic State fighting group

The conflict in Syria and Iraq

In the spring of 2011, the uprising in Syria started with protests to force reforms in President Assad's regime. The regime tried to crush the call for reforms with brute force, but this did not silence the resistance. At the end of 2011, the opposition began using weapons in response to the regime's violence. Armed groups and various states are involved in this struggle.2Human rights violations took place on the side of the government forces and paramilitary militias, but also on the side of the armed opposition. In 2013 and 2015, chemical attacks were launched by the Syrian regime, resulting in a large number of victims. In the last months of 2013 and the early months of 2014, the Syrian regime appeared to have stepped up attacks with so-called barrel bombs. Also in the course of 2014 and the first half of 2015, airstrikes and barrel bomb attacks by the Syrian regime in various parts of Syria cost many lives, especially of civilians. As the struggle in Syria progressed, the influence of jihadist groups increased. Their aim was not only to overthrow the regime of Bashar al-Assad, but also – or above all – to establish a strict Islamic state on the territory of Syria and the return to 'pure Islam.’ This was justified, among other things, on the basis of the ideology of Salafism.3

One of the combat groups involved: IS

One of the jihadist groups is the Islamic State in Iraq (hereinafter referred to as: ISI). The group claimed an attack on 11 March 2013 that killed 48 Syrian soldiers and nine Iraqi guards. It would be the first action in which ISI confirmed its involvement in the Syrian conflict. ISI renamed itself Islamic State in Iraq and the Levant (hereinafter: ISIL) in April

2013. ISIL aimed to violently impose a purely Islamic society and/or state based on Sharia – all as perceived by them – on the civilian population. With this they aimed to destroy the fundamental political structure of Syria and Iraq.

On 29 June 2014, ISIL proclaimed the Islamic Caliphate in IS-conquered territory in Syria and Iraq and ISIL was renamed IS. In 2014 and 2015, IS territory was in Syria and Iraq. As a 'caliphate', IS claimed religious, political and military authority over all Muslims around the world. Abu Bakr al-Baghdadi, the emir of IS, was appointed as 'caliph' of IS. All Muslims in the world were then called on to take the oath of allegiance to the self-crowned 'caliph' Abu Bakr al-Baghdadi and settle in IS territory. The oath of allegiance was not optional; whoever took the oath committed to the common goal of IS.

Armed violence also took place in neighbouring Iraq from the end of 2013 between, among others, Iraqi government forces (supported by an international coalition from August 2014) and IS. In the course of 2014, hostilities expanded to the rest of the country and several cities were captured in northern Iraq. In June 2014, ISIS captured Mosul, a city of 1.4 million inhabitants, and IS claims that 1,700 Iraqi soldiers were executed in the Tikrit area on 12 June 2014, some of whom were thrown into the Tigris.4 Hostilities continued in the following year. Thousands of civilians lost their lives in the hostilities, many thousands were injured and more than a million people had to flee.5

In 2014, an official IS magazine, Dabiq, called for the killing of infidels, whether civilian or military (“Kill the disbeliever whether he is civilian or military, for they have the same ruling”).6

In the second half of 2014 and early 2015, several foreign journalists and aid workers were taken hostage and beheaded in retaliation by IS, including James Foley, Steven Sotloff and Alan Henning.7 The UN Rapporteur on Human Rights and Displaced Persons reported in April 2016 that IS was carrying out mass executions, public executions, amputations and beheadings of, among others, soldiers and religious minorities as part of a ‘campaign of terror.’8 IS thus committed serious crimes on a large scale, such as torture, deportation, mutilation, rape, murder and summary executions of prisoners and civilians, after which the bodies of these persons were exhibited, for example by hanging them on the side of the road.9

In July 2014, the Christian residents of Mosul were given an ultimatum by IS to convert before 19 July, otherwise they would be killed.10 Sunnis who had worked for the Iraqi government or military were required to apologize for their past actions or face execution.11 Alawites were also executed and Shiite mosques destroyed within IS territory.12 Opponents of IS, persons captured by IS, prisoners and dissenters were beheaded, executed, mutilated and exhibited.13 For example, in August 2014, the United Nations Human Rights Council reported that public executions in Aleppo were being organised weekly by IS, informing residents in advance and encouraging them to come. The bodies were then put on public display for days, often on crucifixes, as a warning to the local population and to force submission among the population through instilling fear. By publicly displaying bodies and failing to bury the victims in accordance with the victim's religious rituals, IS has violated customary international humanitarian law, according to the Human Rights Council.14 Thus IS violated the rights of dissenters - Christians, Jews, Shiites, Alawites and also non-fundamentalist Sunnis - in a very violent way.

The number of fighters who joined IS in 2014 was estimated to be between 20,000 and 31,500. In 2014, IS leadership was subdivided into several councils: a command council, a so-called majlis al-shura (advisory council), a judiciary council, a security council, a military council, an intelligence council, a combatant aid council, a media council and a financial department. The fighters' aid council had the task of arranging the arrival of foreign fighters to the IS and helping them find housing. The majlis al-shura consisted of nine to eleven members and was responsible for transmitting orders from Abu Bakr al-Baghdadi to the lower command structures and verifying that these orders were followed. In addition, it decided on laws and their application and thus had duties that overlapped with the duties of the Sharia Council (which decided on religious matters). With the founding of the caliphate and the conquest of territory in 2014, IS further established ministries or committees, which also had to administer the territory conquered by IS. IS training camps were located in various places in Syria and Iraq, where lessons were given in legal rules and Islamic religion, and where the recruit was also taught combat techniques and how to handle weapons. The IS army was allegedly made up of special units, air defence troops, a sniper brigade and an administration, among others.15

Continuation of IS's struggle in Syria and Iraq

Since 2016, several cities and areas have been captured from IS. In February 2019, the Secretary General of the United Nations (hereinafter: the Secretary General) reported that IS still consisted of an estimated 14,000-18,000 fighters in Iraq and Syria.16 In March 2019 the conquest of the last IS territory took place in Baghouz, during which fierce fighting took place and many people were displaced. For example, the population in the Al Hawl refugee camp was reported to have increased sevenfold to 70,000 in early 2019.17 On 8 April 2019, IS announced a ‘Campaign of Vengeance for the blessed al-Sham Province’, claiming several attacks. Between 8 and 10 April 2019, ten attacks were claimed by IS, several of which were claimed via Amaq.18 On 7 January 2019, IS carried out a suicide attack on a building of the Syrian Democratic Forces (hereinafter referred to as SDF) council building in Raqqa, killing at least five and injuring more than 20. On 3 March 2019, IS killed two SDF fighters in Karama. On 29 April 2019, a bomb attack by IS in Raqqa City killed several SDF fighters and civilians.19

In August 2019, the United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA) reported that as of 1 July 2019, 5.6 million Syrian refugees had been registered and that 5.9 million were internally displaced. More than eleven (11.7) million residents, the organisation said, were in need of humanitarian aid.20 The United Nations had already stopped collecting data on civilian casualties in 2014 due to lack of access to and reduced reliability of the necessary sources. Estimates in 2019 ranged from 200,000-500,000 conflict-related deaths.21

IS leader Abu Bakr Al Baghdadi was killed in October 2019. Amir Muhammad Sa'id Abdal-Rahman al-Mawla has been the new leader of IS since late 2019; according to a UN report, the strategy of IS has not changed after his arrival.22 After the loss of territory, IS now

consists of so-called underground cells,23 and IS continues to pose a significant threat in the region. The Secretary General has reported that IS is increasingly operating underground, but has centralised leadership.24

Media strategy of IS

From the outset, IS has adopted a clear media strategy, using official publications from IS channels as well as messages produced by IS supporters or members, so-called ‘user generated content.’ Thus, as many media channels as possible are used to produce and disseminate propaganda. Online supporters are called upon to participate and contribute to this 'electronic jihad' as 'media mujahid' (fighter on the media front).25 An important part of IS's media strategy is filming attacks and executions and then sharing them through official channels.26

IS has several official central media outlets, including Ajnad Media Production Company and Al-Hayat Media Centre. The Central Media Department (or Ministry) of IS ('Diwan al'lam at-Markazi) monitors what and how is published by local media agencies.27 IS also uses 'Amaq News Agency': a news agency that is presented as an independent news agency, but is part of the Media Ministry of IS. Since its inception, this news agency has been the main source of information about attacks and the ideology of the Islamic State.28 These official IS publications emphasize the central role of the media in the jihad. For example, issue number 12 of Dabiq talks about two kinds of struggle that reinforce and support each other, i.e. the struggle on the battlefield and the media campaign on the ideological battlefield. According to a publication by Maktabat Al-Himma, also an official media outlet of IS, the role of the 'media operative' in the jihad is not inferior to the struggle on the battlefield, with 'media operative' being a broad concept of the maker of footage to the supporters who spread online propaganda. Also, an October 2018 video by Al-Hayat Media Centre titled ‘Inside the Khilafa No. 8’ calls for action online to support their khilafah on the digital front. This video specifically talks about the sharing of propaganda by supporters.

ISIS supporters who repost IS content are identified by researcher Benigni as a vital part of

IS media strategy because of their participation in the IS online extremist community, in which they contribute to the broad reach of IS propaganda. According to researcher Benigni,

such networks are also sometimes targets of recruiters.29

A survey of 636 pro-IS channels and groups from November 2015 to October 2018 shows that Telegram is at the centre of IS supporters' online communication strategy. In addition to being the medium for the dissemination of official IS propaganda and user-generated propaganda, Telegram was part of a ‘larger infrastructure of digital communication technologies with various intertwined functions’ for the network of IS supporters, such as: dissemination of information and communication , one-to-one operational communication, strengthening and broadening the network.30 On the channels investigated, (un)official IS propaganda was disseminated, as well as audio messages, documents, photos, announcements and calls to action.31 Police have declared that the Telegram groups 'Greenb1rds' are not among the official media outlets recognised by IS.

4.4.2

Telegram, data carriers and OVC-recordings

Operation of Application Telegram

Telegram is a digital messaging service where messages can be shared in groups, channels and one-to-one chats. Telegram distinguishes the roles owner, administrator (admin) and member. Below is an overview of the rights and capabilities per role in Telegram groups:

Rights and capabilities of groups

Owner

Administrator

Member

Send messages

V

V

V

Send media

V

V

V

Send stickers and GIFS

V

V

V

Send polls

V

V

V

Send link example

V

V

V

Add users

V

V

V

Save messages

V

V

V

Modify chat information

V

V

V

Adjust information

V

V

V

View subscribers and administrators

V

V

V

Delete messages

V

V

X

Block members

V

V

X

Invite via link

V

V

X

Adjust permissions per member

V

V

X

Add exceptions (permissions)

V

X

X

Add and delete administrators

V

X

X

Adjust permissions of administrators

V

X

X

Transfer ownership

V

X

X

Delete group

X

X

X

Each group or channel has its own name, ID and URL. The name and URL can be modified, but an ID cannot. To create a Telegram profile, a phone number must be entered, to which a verification code is then sent via SMS by Telegram. With this original phone number it is

possible to log in on multiple devices at the same time. With every first login on a new device, a new verification code will be sent via SMS to the original phone number to activate the account on that new device.

Within Telegram groups, all members can post messages unless specifically granted less permissions by an administrator of the group. There are at least two types of groups within Telegram:

  • -

    Private groups: to access these groups you must be added by the administrator or you will receive a link with which you can access them. With private groups you can set whether new members can view the history of the group chat.

  • -

    Open groups: these are groups that can be found via a search function in Telegram. These groups can be found through open searches and through a direct link.

There are two types of one-to-one chats within Telegram, where users can chat one-to-one:

  • -

    Private chats: users can exchange messages and files one-to-one here.

  • -

    Secret chats: users can exchange one-to-one messages and files here like in private chats. In addition, a self-destruct timer can be set so that chats disappear after (for example) five seconds after reading. Messages from secret chats cannot be forwarded.32

[person involved 1] was in contact with '[first name defendant]', administrator of the Telegram group called 'Greenb1rds'

In the investigation against [person involved 1] it became known that [person involved 1] had contact with a Dutch Telegram user known to him under the name '[first name defendant]', with Telegram user-id [user-ID 1 ] (hereinafter: [user ID 1]). [first name defendant] was administrator of a group called ‘Greenb1rds.’ Invitations to Telegram groups or Telegram channels such as Greenb1rds were sent by [first name defendant]. In addition, [first name defendant] sent PayPal payment links to donate to IS fighters and their families, and [first name defendant] issued an appeal to Muslim men to join the armed jihad.

One-to-one contact between [person 1] and [first name defendant involved] also took place via Telegram (chat 6). Messages were sent between them about someone who became an administrator, but who [first name defendant] says did not make him an "admin." Also, [person 1] wrote to [first name defendant involved] that he would share Greenb1rds in all his channels, to which he sent a link. He received a new link from [first name defendant].33

In the phone of [person involved 1] the police found a screenshot of a group called ‘GreenB1rds’, which bears the words "[first name defendant]" and ‘admin.’ Further

investigation into the phone led to a Telegram group called 'Greenb1rds', with 142 messages, in which [first name defendant] participated.34

The telephone [person involved 1] contained three Telegram contacts under the name [defendant's first name], i.e. with telephone number [telephone number 2] (ID [user ID 2]), with telephone number [telephone number 1] (ID [user ID 1]) and with telephone number [telephone number 3] (ID [user ID 3]).

The telephone number [telephone number 2] (hereinafter: number [telephone number 2]) has been registered by the police since 12 March 2019 as a means of communication for [name of the defendant], the defendant.35

During the search of the defendant's house, SIM cards were found that belong to the telephone numbers ending in [telephone number 2] and [telephone number 1].36 The demanded historical traffic data showed that in the period from 17 March 2019 to 17 September 2019, the telephone numbers [telephone number 2], [telephone number 1] and [telephone number 3] communicated via the same three radio masts in the vicinity of the house of the defendant.37

On 24 June 2019 at 10:51 hrs a telephone conversation took place between [person involved 1] and the user of the telephone number [telephone number 2], which conversation was overheard by the police. In this conversation [telephone number 2] said: 'I will have to go to court on Friday, in Rotterdam.38

An overheard conversation between [person involved 1] and [telephone number 2] on the same day at 12:32 hrs shows that they are arguing.39

An intercepted conversation between [person involved 1] and [telephone number 2] on 7 July 2019 shows that [person involved 1] calls the user of the number [telephone number 2] '[first name defendant].’40

From June 24 to June 30, 2019, a Telegram private chat between [person involved 1] and '[first name defendant]' (NesmuMutawahiddeen (ID [user-ID 1])) took place, in which the following messages were shared ('chat 6').

On 24 June 2019 at 15:41 hrs [first name defendant] says 'May Allah forgive us', to which [person involved 1] replies 'Forgive me for my jealousy and anger.’41

On 25 June 2019 [first name defendant] sends a message titled ‘Talk yourself into martyrdom operations.’42 The following day this message is shared by [first name defendant] in the Telegram chat with ID [ID chat 10] (court: see ‘chat 10’).43

On 25 June 2019 [person involved 1] asks ‘U got GB link?’, after which [first name defendant] sends a link.44

On 25 June 2019 (at 23:56 hrs and 23:59 hrs) and 26 June 2019 (at 00:03 hrs and 00:05 hrs) this link is shared in the Telegram group chats with the ID’s [ID chat 3] (court, see ‘chat 3’), [ID chat 4] (court, see ‘chat 4’), [ID chat 5] (court, see ‘chat 5’) and [ID chat 7] (court, see ‘chat 7’).45

On 26 June 2019 at 18:27 hrs [person involved 1] says: ‘Share my channel on the group’ and he sends a link to that channel. Then, [first name defendant] shares that link at 18:28 hrs in the Telegram group chat with ID [ID chat 10] (court, see ‘chat 10’).46

On 26 June 2019 [person involved 1] says: ‘I can see your name’, to which [first name defendant] responds: ‘That’s how u saved me in ur phone. They see nesmumutawahiddeen.’47

On 26 June 2019 [first name defendant] sends a message titled ‘Would you be interested in joining a Group which will be leading the war of mind and souls against the international

coalition?.’48 This message is then shared by [first name defendant] in the Telegram chat with ID [ID chat 10] (court, see ‘chat 10’) on 26 June 2019.49

On 30 June 2019 [first name defendant] says: ‘If I don’t come back from Maruecos (court: Morocco) make dua for me.’50 In the Huawei tablet of the defendant tickets were found for flights to Morocco (on 2 July 2019) and back to Eindhoven (on 17 July 2019).51

Telegram chats (chat 1-11) found between [person involved 1] and ‘[first name defendant]’ from investigation 26Cochran

Eleven Telegram chats were found in data stored in [person involved 1]'s phone, in which Telegram profile with ID [user-ID 1] participated. It concerns ten Telegram group chats and one private chat (chat 6) between [person involved 1] and the Telegram profile NesmuMutawahiddeen (ID [user-ID 1]).

Those chats were investigated by a Middle East expert who concluded the following:

‘User [first name defendant] can be classified as an IS sympathizer/supporter on the basis of the messages sent. [first name of the defendant] actively promotes the ideas of IS, for example by citing IS leader Al-Baghdadi, and disseminates radical Islamic material in a general sense, including from Al-Qaida. The posts that are circulated frequently call for armed jihad, glorify the mujahideen, and attempt to justify the use of violence against ‘infidels’ (such as Western countries) and ‘renegades’ (such as Shiites and Islamic reformers). Some posts are used repeatedly, in multiple reports and sometimes multiple times per report:

  • -

    invitations to Telegram chats, often mentioning Greenb1rds (unofficial IS social media channel);

  • -

    payment links (PayPal), sometimes together with an incentive to donate to IS fighters and their families ('financial jihad');

  • -

    a call for Muslim men to join the armed jihad against the 'infidels.’52

Chat 1

Police have investigated the chat with ID [ID chat 1] (chat 1), which was active from 2 March 2019 up to and including 17 July 2019. The group image reads: 'Al-Shahaba' , which is a designation for 'companions of the prophet.’ The chat contained 28 participants.

In the chat many messages were shared from official IS media channels and messages from well-known pro-IS media channels, such as Furat Media, Al-Battar and Ahlut-Tahwid Publications. An example is the sharing of the magazine titled “From Dabiq to Rome” from Ahlut-Tawhid Publications.

As for the content of the shared messages, the police state that they glorify the combat against the 'infidels', that they call for the combat against the 'infidels', that messages have been shared about security awareness, advice and relationships with 'infidels' and that they are salafist in content.

‘[first name defendant]’ (ID [user-ID 1]) posted seven messages in this chat, including:

  • -

    on 29 June 2019: a message stating that [first name defendant] had previously shared a 'fundraising event for those sisters' and now wonders if it was reliable;

  • -

    on 30 June 2019: a link with the caption 'Bismillah' (interpreter: in the name of Allah);

  • -

    on 30 June 2019: a message to Australian members calling for non-voting and

rejecting democracy as ‘shirk.’53

Chat 2

The police have investigated the chat with ID [ID chat 2] (chat 2), which was active from 2 March 2019 up to and including 17 July 2019. The chat was called 'Lions of

the media’ and included 53 participants.

In this chat many messages were shared that contained pro-IS publications from pro-IS media channels or pro-IS messages. Official IS publications from Al-Bayan Media and Al-Furqan Media were also shared. An example of this is the sharing by a participant of an 29 April 2019 Abu Bakr al-Baghdadi speech published by Al-Furqan.

‘[first name defendant]’ posted fifteen messages in this chat, including:

  • -

    on 19 June 2019: a report citing the Amaq News Agency (part of the IS media ministry) media channel, which speaks of a military confrontation between the Taliban and ‘fighters of the Islamic State’ in which members of the Taliban were killed and injured;

  • -

    a 'neuer spendenlink' on 21 June 2019;

  • -

    on 23 June 2019: a message with a lecture by Anwar al-Awlaki (a radical preacher, killed in Yemen), who calls Muslims who do not commit violence in the name of Islam not real Muslims, but ‘munafiq’ (hypocrites);

  • -

    on 24 June 2019: A report from Amaq News Agency about an attack on the Chechen president, in which several security guards were killed. The attacker is described as 'inghimasi' (fighters who fight to the death) and the message ends with 'May Allah accept him';

  • -

    on 26 June 2019: a link to Telegram page 'Greenb1rds.’54

Chat 3

The police have investigated the chat with ID [ID chat 3] (chat 3), which was active from 7 May 2019 up to and including 17 July 2019. The chat was called ‘followers of the truth.’

Many messages were shared in the chat that came from official IS media channels, such as messages published by the 'wilayat' (provinces) of IS, al-Bayan Radio, a-Furqan, al-Hayat Media, al-Naba' and Dabiq . Furthermore, messages were shared from pro-IS media channels. As for the content of the shared messages, the police stated that they glorify IS and that they are called upon to continue the fight of IS, that they glorify the armed struggle against the infidels and that those messages are Salafist in content.

Examples of messages include the message of 7 May 2019, which talks about when 'takfir' (declaring one to be a disbeliever) may be applied, and the message of 17 July 2019, which reads below a quote from the Koran: 'Warning against the enemy of God. He is even afraid of the slaughter. I'm thankful to God for turning me into a terrorist. Crush them. We come to slaughter you o Jews.’

‘[first name defendant]’ posted thirtyeen messages in this chat, including:

  • -

    on 21 June 2019: a link to the Telegram page Greenb1rds;

  • -

    on 21 June 2019: a ‘neuer spendenlink’;

  • -

    on 23 June 2019: a lecture by Anwar al-Awlaki who calls Muslims who do not commit violence in the name of Islam not real Muslims, but ‘munafiq’ (hypocrites).55

Chat 4

The police have investigated the chat with ID [ID chat 4] (chat 4), which was active in the period from 4 May 2019 up to and including 17 July 2019.

Many messages were shared in the chat that came from official IS media channels, such as al-Bayan Radio, al-Furqan, al-Hayat Media al-Naba' and Dabiq. Furthermore, messages were shared from pro-IS media channels. As for the content of the shared messages, the police stated that they glorify IS, that calls are made to continue the fight of IS, they glorify the armed struggle against the infidels, they share messages that include quotes from leaders of jihadist organisations , including Osama bin Laden and Abu Mus'ab al-Zarqawi (leader of the fighting group Jama'at al-Tawhid wal-Jihad (JTJ) in Iraq) and that those messages are Salafist in content.

‘[first name defendant]’ posted twenty three messages in this chat, including:

  • -

    on 21 June 2019: a link to Mutarjim Foundation (mutarjim means translator. In January 2019, the al-mutarjim foundation of IS was established, with the aim of translating IS's Arabic-language news into various other languages);

  • -

    on 21 June 2019: a 'neuer spendenlink' to PayPal;

  • -

    on 21 June 2019: a link to the Telegram page Greenb1rds;

  • -

    on 23 June 2019: a lecture by Anwar al-Awlaki who calls Muslims who do not commit violence in the name of Islam not real Muslims, but 'munafiq' (hypocrites);

  • -

    on 24 June 2019: a report from Amaq News about an attack in Chechnya on behalf of IS;

  • -

    on 26 June 2019: a link to the Telegram page Greenb1rds;

  • -

    on 29 June 2019: a link to the Telegram page Greenb1rds.56

Chat 5

The police have investigated the chat with ID [ID chat 5] (chat 5), which was active in the period from 17 May 2019 up to and including 17 July 2019. The chat was named 'The hunters of the collaborators = the servants of the slaughter' and contained 85 participants.

The tendency of the group is pro-IS. Pro-IS and jihadist messages were shared in the chat. Furthermore, messages were shared that come from official IS media channels.

‘[first name defend]’ posted nine messages in this chat, including (all on 21 June 2019):

- a link to the Telegram page Greenb1rds;

  • -

    a PayPal payment link with the caption 'neuer spendenlink';

  • -

    an appeal to Muslim men to participate in the armed jihad against 'infidels', namely an English-language message that includes: ‘Where are the men who will defend this Ummah? Where are the men who will stand up? (…) When you were able to drive over the kuffar or stab them with a knife wallahi nothing is impossible!.’57

Chat 7

The police have investigated the chat with ID [ID chat 7] (chat 7). The first and second chat with this ID were active from 12 June 2019 up to and including 10 July 2019 and featured eight and seven participants respectively.

The second chat shared messages from official IS media channels, such as from IS's wilayat (provinces) and al-Naba.’ Furthermore, messages were shared that come from pro-IS media channels. As for the content of the messages, the police stated that they glorify IS’s fight against the 'infidels' and that they are Salafist in content.

‘[first name defendant]’ posted thirty three messages in this chat, including:

  • -

    on 21 June 2019: een link naar een PayPal-page met het bijschrift ‘neuer spendenlink’;

  • -

    on 21 June 2019: a link to the Telegram page Greenb1rds;

  • -

    on 21 June 2019: a message in English that asks where the men are who defend this ummah (Islamic community), and which also mentions: ‘When you were able to drive over the kuffar (infidels) or stab them with a knife wallahi (I swear by Allah) nothing is impossible.’;

  • -

    on 22 June 2019: an message in English about the necessity and importance of the 'financial jihad', which refers to donating money for the armed struggle or to support the fighters and their families. The message contains a link to a PayPal page and a warning not to use "Islamic terms" with the donation as the account may be closed.58

Chat 8

The police have investigated the chat with ID [ID chat 8] (chat 8), which was active in June 2019.

The tendency of the group is pro-IS. Messages were shared in the chat about the fight against the infidels (including the English message of 12 June 2019 with an explanation of reasons why people fight against the 'infidels', with the first sentence 'Message to the Kuffar… Why we hate you and why we fight you'), pro-IS propaganda was shared (including three links to three issues of the magazine 'From Dabiq to Rome') and

propaganda from official IS media channels was shared (including a description of the lives of leaders of IS and predecessors of IS and English translations of speeches by Abu Hamza al-Muhajir, Abu Muhammad al-'Adnani, Abu Bakr al-Baghdadi and Abu I-Hasan al-Muhajir).

‘[first name defendant]’ posted one message on this chat on 16 June 2019, in which a link was shared tot an article in the English-language newspaper The Washington Post, titled ‘The kidnapped yazidi children who don’t want to be rescued.’59

Chat 9

The police have investigated the chat with ID [ID chat 9] (chat 9), which was active in June 2019.

Besides some system messages, this chat contained only four messages shared by ‘[first name defendant]’, (all on June 21, 2019) including the following:

  • -

    a message with an English text explaining the malice of the ‘enemy’ mentioning America by name. The text begins with the words ‘In the defence of our Beloved Prophet [May blessings and peace be upon him].’;

  • -

    a message with an English text, being a translation of a song in which it is stated in the text that the 'martyr' who made the 'enemy' suffer is in paradise and in which the martyr is mentioned as an example for 'us' ;

  • -

    a link to the Telegram page Greenb1rds.60

Chat 10

The police have investivgated the chat with ID [ID chat 10] (chat 10), which was active op 26 June 2019.

Messages were shared in two chats with this ID. The second chat shared messages from official IS media channels, such as from IS's wilayat (provinces) and al-Naba.’ Furthermore, messages were shared from pro-IS media channels. As for the content of the messages, the police stated that the fight against the 'infidels' is glorified, that they call for the fight against the 'infidels' and that these messages are Salafist in content.

‘[first name defendant]’ posted fifty three messages in this chat (all on 26 June 2019), including:

  • -

    an English message from the official IS media channel Al-Hayat Media Center with an English translation of a speech 'Be Patient, For Indeed the Promise of Allah Is True';

  • -

    an English message announcing the publication of issue 12 of the IS magazine Dabiq, published by Al-Hayat Media;

  • -

    an English message referring to the 'Situation of Uighur muslims' and then an English message with a call to drive through 'China town in your city' because of the situation of the ummah (Islamic community) and 'terrorize them wherever you even find them';

  • -

    an English message with a reference to Osama bin Laden and a call from bin Laden

to Muslims to join the fight. The message reads: ‘#GreenB1rds, Osama bin Laden, urges Muslims to join him in Holy War’;

  • -

    an English message talking about ‘the Islamic State’ and stating that the ‘Islamic State’ is permanent, using the term baqiya (permanent);

  • -

    an English message with a call to open Telegram channels and invite others to do so. The report states that one must fight as long as one can to keep ‘high the flag of tawhid (true monotheism)’;

  • -

    an English message about the struggle against 'the international coalition' in the 'battle of the spirit and souls', and the question of whether people want to participate in this struggle. The message states, among other things: 'Would you be interested in joining a group which will be leading the war of mind and souls against the international coalition?' The message states that those interested must provide proof that some form of aid (nusra) has been offered to the 'Islamic State' in the past.61

Chat 11

The police have investivgated the chat with ID [ID chat 11] (chat 11), which was active in June 2019 and contained six participants.

Messages were shared in the chat from official IS media channels, such as from IS's wilayat (provinces) and from al-Naba.’ A message was also shared that came from a pro-IS media channel. With regard to the content of the messages, the police state that they call for the fight against the 'infidels' and that those messages are Salafist in content. On 27 June 2019, an English-language post was shared by a user, i.e. an excerpt from a lengthy speech by Abu Bakr al-Baghdadi, published in August 2018, titled ‘And give glad tidings to the patient.’ In the clip, media war supporters are referred to by Al-Baghdadi as 'lions of information and warriors of media', underlining the importance of their work by assuring them that the struggle is currently conducted in 'their arena' ( of the media). So they must be steadfast and contribute to the struggle, just like their ‘brothers’ who are fighting elsewhere.

‘[first name defendant]’ posted forty messages in this chat, (all on 27 June 2019) including:

  • -

    a message from the pro-IS media channel At-Taqwa Media Foundation titled ‘And the best outcome is for the pious’;

  • -

    a message asking where the men are who defend 'this ummah (Islamic community)';

  • -

    an English message warning against talking too much about possible actions, because the 'infidels' are listening in and spying, and so one can expose oneself. Instead of talking so much, one should take action;

  • -

    an English message stating that Allah has sent ‘the Caliphate’ that like a lion rips ‘youth’ from the teeth of the West so that the youth becomes part of ‘the Islamic State’;

  • -

    an English message that opens with the text 'Showing the strength of Mujahideen and their bravery when meeting the enemy' and talks about how to wage jihad: not

as a theoretical concept but by actually standing up against the enemy: It is said that the enemy will be intimidated and afraid for what will come, while at the same time the fighter is a role model for others: ‘Also the hero of the battle of Toulouse will be an example and a role model for whomever is behind him among the Muslim youth in the West, especially those who have not joined up with Mujahid groups’;

  • -

    an English message that opens with the text ‘Destabilizing the security of the enemy and revealing its weakness and fragility to Muslims’ and mentions the need to break the unity of the enemy, who has united against the Muslims. France in particular must be attacked by the 'fighters' (mujahidin);

  • -

    calls to join the fight against the enemy (also online);

  • -

    a link to the Telegram page Greenb1rds.62

Investigation into Telegram groups with the name ‘Greenb1rds’

Telegram group Greenb1rds with ID [ID Telegram group 1] (TG1)

This group contained 90 members. A lot of jihadist material was shared in this group. For example, media reports from Amaq-Agency, the official news agency of IS in Iraq and Syria, were shared. A video was also shared showing a woman committing a suicide attack.

Among others, NesmuMutawahiddeen (ID [user-ID 1]) and GB (Telegram ID [user-ID 3]) were administrators of this group.63

Telegram group Greenb1rds with ID [ID Telegram group 2] (TG2)

This group contained 147 members. Many IS promotional videos were posted in this group. Some of the contents of this group are similar to those of Telegram group with ID [ID Telegram group 1] (TG1). A video of a beheading and videos with battle songs have also been shared.

Telegram profile GB (ID [user-ID 3]) was administrator of this group and invited three other Telegram users to this group.64

Telegram group Greenb1rds with ID [ID Telegram group 4] (TG4)

This group had 80 members and posts were shared in it by Telegram profiles NesmuMutawahiddeen (ID [user-ID 1]) and GB (ID [user-ID 3]).65

Both NesmuMutawahiddeen and GB were members and administrators of this group.66

On 25 September 2019 at 22:45 hrs, GB shared an English message titled ‘Take precautions 7, Traps on the path of Jihad.’67 This English text is a translation of an Arabic-language

article that appeared in Al-Naba on 20 June 2019. Al-Naba is a weekly newsletter published by the Central Media Ministry of IS.68

On 25 September 2019 at 23:13 hrs NesmuMutawahiddeen shared two videos with images of men on a hill and somewhat later an explosion.69

On 25 September 2019 at 23.19 hrs, NesmuMutawahiddeen shared a video with an Arabic caption and it the video shows a man being shot in the head.70

This video was also found in the data of the defendant’s Huawei-tablet. The video came from Telegram chat with ID [ID Telegram group 4].71

On 26 September 2019 at 00:34 hrs, a video was shared by NesmuMutawahiddeen in this group showing four men in orange overalls with chains on hands and feet, hanging from a scaffold and being set on fire with the use of a flammable substance. An Arabic text was also placed below the video. A few seconds later, NesmuMutawahiddeen added the comment ‘Like roasted chicken’ below the video.

Investigation has shown that between 25 September 2019 at 22:47 hrs and 26 September 2019 at 01:25 hrs, NesmuMutawahiddeen posted a total of twenty-five messages in this Telegram group. During that period, the police intercepted and recorded conversations in the home of the defendant (hereinafter: the OVC recordings). The OVC recordings showed that between 25 September 2019 at 22:45 hrs and 26 September 2019 at 01:30 hrs, no conversations or interactions took place, except for two short moments where the voice of the defendant was recognised. Furthermore, the OVC recordings showed that on 25 September 2019 at 23:19 hrs an Arabic text was played in the residence, which has been recognised as part of a speech by Abu Muhammad al-Adnani, an IS spokesman who died in 2016. Simultaneously with the text being played in the residence, this speech was posted as an audio message in this Telegram group on 25 September 2019 at 23:19 hrs by NesmuMutawahiddeen (ID [user-ID 1]).

The OVC recordings show that on 26 September 2019, between 15:46 hrs and 15:50 hrs, the defendant's voice was recognised in the residence and the defendant said, ‘Here I am again. (…) I was an awful lot on Telegram (…).’72

Telegram group with ID [ID Telegram group 5] (TG5)

This group contained 56 members and in it messages were shared by the Telegram profiles NesmuMutawahiddeen (ID [user-ID 1]) and GB (ID [user-ID 3]).73 Both NesmuMutawahiddeen and GB were members and administrators of this group.74

On 26 September 2019 at 11:21 hrs NesmuMutawahiddeen shared an image of a bloodied hand with the text 'Spilling the blood of the Mushrikin is the greatest form of disavowal' underneath. After posting the aforementioned photo, an English text and a number of images/posters were shared, which text deals with the shedding of blood of the 'polytheists' (mushrikin).75

Telegram group with ID [ID Telegram group 6] (TG6)

This group contained 137 members and in it messages were shared by Telegram profile GB

(ID [user-ID 3]).76 Both NesmuMutawahiddeen and GB were members and administrators of this group. In this group, GB shared messages with threats towards infidels.77

On 27 September 2019 at 16:52 hrs, in this group GB shared a video with the Arabic caption ‘The legends of the van de Islamic State in Mosul.’78

On 27 September 2019 at 16.51 hrs, GB posted the oath of allegiance (bay'a) to the Islamic State.

GB also posted in this group, also at 16.51 hrs, English texts glorifying the Ummah (the Islamic faith community) and the jihad, an image of Abu Bakr al Baghdadi (leader of the Islamic State). 79

Telegram group with ID [ID Telegram group 7] (TG7)

This group contained 140 members and in it messages were shared by the Telegram profile GB (ID [user-ID 3]).80 GB was a member and also one of the administrators of this group.81 In this group, many violent images and videos of beheadings and threats to the West were shared.82

On 30 September 2019, GB shared two messages in this group.

First, an English message that begins with the text 'Message from camps sent in.’ The report speaks of outside attacks on the camp and on the 'clinic', in which at least two women were killed. According to the writer of the text, the attack is an attempt to pretend to the outside world that the prisoners are fighting, but this is a lie. The message continues and then ends with a supplication to Allah for the liberation of "our brothers and sisters", and a prayer for warriors (mujahidin) who will liberate them.

Second, a video showing images of a fire and silhouettes of people. The caption reads: ‘Video of the fire in #Hol-Camp yesterday. The fire was in the sixth phase. The damage was the burning of the tent and the stuff inside it and the injury of its inhabitants. #kafe_project..’83

Another administrator of this group (ID [ID group admin 1]) shared a post titled "Knife attacks" on 30 September 2019 at 20:08 hrs.

Telegram group with ID [ID Telegram group 8] (TG8)

This group contained 151 members and on 1 October 2019 messages were shared.84 GB was one of the administrators of this group.85

Telegram group with ID [ID Telegram group 9] (TG9)

This group contained 190 members.86 GB was one of the members of this group. The content of this group was pro-Islamic State and violent in nature, with many threats to the West and the infidels.87

GB (ID [user-ID 3]) shared an English message in this group on October 3, 2019 that begins with the text: 'You were free....’ This is followed by a text which expresses astonishment that "you", who were "free", chose to pass over to the enemies. This text has been recognised by a Middle East expert as the English translation of the nashid 'Kunta Hurran', published by Ajnad Media, an official media channel of IS and contains accusations against the people who once lived in IS territory, but left it. to the lands of ‘kufr’ (disbelief). They have exchanged the freedom and honor of IS for oppression and humiliation, the song says.88

Telegram group with ID [ID Telegram group 10] (TG10)

This group contained 144 members and on 3 October 2019, messages were shared.89

GB was one of the members of this group. The content of this group was pro-Islamic State and violent in nature, with many threats to the West and the infidels.90

Police have stated that the messages shared by NesmuMutawahiddeen and GB in the Telegram groups discussed above contain official publications from IS and publications of pro-IS media channels, reports with news about the armed struggle against the infidels, messages that glorify and substantiate the armed struggle against the infidels, calling for the killing of the infidels, and talking about the reward for the fighter and martyr, messages glorifying IS and calling for IS to continue its struggle and messages with a more general Salafist content in which the dichotomy believers/unbelievers is discussed and substantiated.91

Contacts ‘[first name defendant]’ with [person involved 2]

[person involved 2] (hereinafter: [person involved 2]) was sentenced to life imprisonment in Great Britain on 3 July 2020 for preparing a terrorist attack on St. Pauls Cathedral and for distributing terrorist publications. On 18 August 2019, [person involved 2] was stopped when she wanted to fly from Luton Airport (court: London, United Kingdom) to Amsterdam and her passport was confiscated.92

In secured data obtained by the Dutch police from the United Kingdom, private chats have been found between:

  • -

    [person 2] and [first name defendant] (telephone number [telephone number 2]) via the WhatsApp application;

  • -

    [person involved 2] and Telegram profile GB (ID [user-ID 3]) via the Telegram application;

  • -

    [person involved 2] and Telegram profile NesmuMutawahiddeen (ID [user-ID 1]) via the Telegram application;

  • -

    [person involved 2] and Nesmu_Mutawahiddeen via the Threema application.

Furthermore, the following group chats were found:

  • -

    'GB Admins 2' (ID [ID 'GB Admins 2']), in which Telegram profile GB posted messages;

  • -

    'GB Admins (ID [ID 'GB Admins']), in which Telegram profiles GB and NesmuMutawahiddeen posted messages;

  • -

    'Strangers Admins 2' (ID [ID 'Strangers Admins 2']), in which Telegram profile GB posted messages.93

On 17 August 2019 at 14:57 hrs, number [telephone number 2] started a WhatsApp-conversation with [person involved 2] that lasted up to and including 18 August 2019.94

OVC recordings show that around 20:00 hrs the defendant said to [son 1 defendant] (son of the defendant) that they are going to pick up aunt [person involved 2] tomorrow. The defendant said to [defendant's daughter] (defendant's daughter) that they are going to pick up [person involved 2] from the airport. When asked by [son 1 of the defendant], the defendant said "[person involved 2]".95

On 18 August 2019 at 03:59 hrs [person involved 2] sent: 'I’ve left, sister.’

On 18 August 2019 at 06:01 hrs, number [telephone number 2] sent: 'In principle I'll come to the airport with my kids to pick you up.’

On 18 August 2019 at 07:51 hrs [person involved 2] sent: 'On second bus to airport now.’

OVC recordings show that the defendant spoke to someone in English at 08:52 hrs and explained that the person only needs to go to 'the gate', there is no need to check in.

On 18 August 2019 at 09:18 hrs number [telephone number 2] sent 'Your flight is at 12 hrs or something' and at 11:44 hrs 'I'm coming with my two kids (…).’96

OVC recordings from 18 August 2019 between 16:00 hrs and 16:30 hrs show that the defendant said she did not come because her passport was taken. Defendant said she's coming from London airport and it's a shame [person involved 2] didn't come.97

Two boarding passes in the name of [person involved 2] of Easyjet were found on the defendant's Huawei tablet with an arrival date of 18 August 2019 and a departure date of 20 August 2019.98

On September 21, 2019, the following Telegram private chat took place between [person involved 2] (Greenb1rdsTM) and GB (ID [user-ID 3]):

[person involved 2] : ‘Your children okay?’

GB : ‘We go to a bird place and animals to view.’

[person involved 2] : ‘That's fun.’

GB : ‘My health has deteriorated and I am yelling at them all the time, subhan Allah.’

[person involved 2] : ‘Such a shame I couldn't come.’

GB : ‘Yes, very annoying!!!! They knew Auntie was coming and we were at the airport. They were also sad.’

(…)

GB : ‘I'll talk to you later have to go to the bird zoo thing, see you later xx.’ 99

The OVC recordings in the defendant's home of 22 September 2019 show that the defendant spoke to her children about where they were yesterday. [defendant's daughter] said: ‘Avifauna.’ Avifauna is a bird park that also includes other animals.100

On 23 September 2019, a Telegram private chat took place between [person involved 2] and GB (ID [user-ID 3]), with GB sending [person involved 2] at 15:40 hrs: ‘Will watch video and send you a threema request.’

At 15:41 hrs, a chat started between [person involved 2] and Nesmu_Mutawahideen via the Threema app:

Nesmu_Mutawahideen : ‘This is NesmuMutawahideen.’

[person involved 2] : ‘I've added your groups.’

Nesmu_Mutawahideen : ‘I don't like Threema. Telegram is better. Threema is only good for private, super private.’101

On 25 September 2019, the following private chat took place via Telegram between Telegram-profile GB (ID [user-ID 3]) and [person involved 2] (named 'GreenB1rds’):

At 18:13 hrs [person involved 2] sent an image of a green bird with the text GreenBird below.

[person involved 2] : 'Use this as your profile picture, looks better.’

GB : 'Yes, I wanted to but I didn't dare to ask.’

[person involved 2] : 'Of course you can, sister.’

GB : 'I don't know, thought you might say no.’

[person involved 2] : 'I am not like that sister, we are all part of gb.’

GB : 'Because greenb1rds is your baby so I didn't want to go too far.’

(…)

[person involved 2] : 'And in sha Allah I will not be there anymore soon.’

GB: ‘I asked [person 1] and he didn't want to be an admin. Yes inshaa'Allah, I save everything, put me in all backup and give me permission. I'm going through with it

inshaa'Allah.’ 102

Via the Threema app, the following private chat took place between [person involved 2] and Nesmu_Mutawahideen as of 18:26 hrs:

[person involved 2] : ‘It's so hard, I wish I could tell you. But I know that's not possible for your safety and mine.’

Nesmu_Mutawahideen : ‘Don't do it. Insha'Allah I will see it. I can't wait. Alhamdulilah. Very exciting!’

[person involved 2] : 'Go make baya video, gave me Dawlah IS media so you will see that through them. Insha Allah. I'll keep that poem and your admins can publish it when I'm gone.’

Nesmu_Mutawahideen used the logo of IS as profile picture in this Threema chat.103

Then at 20:34 hrs [person involved 2] and GB continued talking in the aforementioned Telegram private chat:

GB: ‘Why did [person 2] leave?’

[person involved 2] then sent a print screen of a forwarded message from '[person 2].’ It was a print screen of a chat in the Telegram group 'GB-Admins', with 22 participants. The print screen shows that GB sent the message 'May Allah curse him' in that group at 10:21 PM. In the private chat with [person involved 2], GB then said, ‘I didn't curse him. I said may Allah curse him.’

The Telegram group 'GB Admins' (ID [ID 'GB Admins']) showed the following message on 25 September 2019 around 19:20 hrs: '[person 2] left the group.’104

Digital files found on the defendant’s Huawei-tablet, Samsung-tablet and in Google Drive

During the search of the defendant's home on October 10, 2019, a Huawei tablet and a Samsung tablet were found and seized.105 The Google Drive application with stored data was found on the Huawei tablet, which data were also secured.106

The police have investigated the contents of the data from the Huawei tablet. In those data,

an instruction for making the explosive substances TATP and lead azide and the preparation of a bomb belt, which came from Telegram, were found.107 With regards to the instruction for making the lead azide, the instruction shows that is originates from the ‘The jihadist cookbook.’108

The other files found on the two tablets and in Google Drive were examined (randomly) by a Middle East expert. Many files came from official IS media channels or pro-IS media channels, or from past and present ideologues used by Salafist and jihadi-Salafist groups and individuals to substantiate their views, such as Anwar al-Awlaki.

For example, an English text was found regarding the principle 'al-wala wa'l-bara', which according to the expert can be translated as “loyalty and disavowal” (“loyalty and disavowal”) and which is a central principle within Salafism to distinguish true Islam from the rest. According to Salafists, the believing Muslims should show complete loyalty to God, to Islam and to their fellow believers, and on the other hand, show total dislike or hatred toward the infidels and anything considered non-Islamic. In the text it is explained that this should manifest itself in, among other things, participating in jihad.

In addition, the following was found:

  • -

    Islamic State news reports from Al-Bayan (an official media channel of IS);

  • -

    a speech by an IS spokesperson from Al-Hayat Media (an official media channel of IS);

  • -

    two issues of the English-language magazine 'From Dabiq to Rome' by Ahlut-Tawhid Publications (a pro-IS media channel);

  • -

    an English document titled '44 ways to support jihad' by Anwar al Awlaki;

  • -

    an abbreviated version of a book, known in English as 'The book of Jihad', by Anwar Al-Awlaki;

  • -

    videos featuring executions, explosions and a sung song of the determination of the "soldiers of Allah" on the path of Islam;

  • -

    a video with the logo of 'Greenb1rds';

  • -

    an image showing the Big Ben in London with the text 'Greenbirds' above it and the text 'Know o crusader infidel that you – Allah willing – will soon be pursued in your own homeland';

  • -

    an image showing Big Ben in London with the effects of an explosion;

  • -

    an image with the text 'Greenbirds' at the top and on which three hands can be seen, one of which is handcuffed. At the bottom is the text 'And remember when those who disbelieved plotted against you to restrain you or kill you or evict you. But they plan, and Allah plans. And Allah is the best of planners', with the hashtag '#Maastricht' at the bottom;

  • -

    audio speeches from the IS spokesperson and other pro-IS speeches.109

The contents of the Samsung tablet have also been investigated by the police. Bookmarks were found in the extracted data with a reference dated 11 October 2017 to an article on the internet 'Shirk in Tahakum', a reference dated 19 December 2017 to an audio recording of a lecture by the Imam Anwar al-Awlaki, a reference of 27 September 2018 to search results about 'Islamic State Caliphate' and a reference of 2 February 2019 to the website www.specshop.pl entitled 'Handguns | Shooting'. Furthermore, internet history showed that (among other things) the website Anwar-alawalaki.blogspot.nl had been visited.110

OVC recordings in the defendant’s residence

As described above, the police recorded confidential communications at the defendant's residence. According to the police, the recordings show that the defendant discusses and shares jihadist and radical Islamic ideas with her children [defendant] (2014), [son 1 defendant] (2016) and [son 2 defendant] (2018). In this regard, the following conversations are important:

On 16 August 2019, the following conversation took place (concisely summarised): The defendant explains to the children that later, when they grow up, all they have to do is look and people become scared. The defendant says that "they are afraid of us." The defendant sings along to the nasheed "Jundullah - Soldiers of Allah". [Defendant's daughter] asks if everyone is afraid, which the defendant confirms.

The defendant says: 'He was a Jundi (soldier), just like Baba, he was a Jundi. The father of (…) was also a jundi, he also died. Did you know that or not? The children then all speak at the same time. The defendant then says several times: 'Look, look.' At that moment an audio (visual) recording is played of children singing nasheed.

The “singing” children then shout in chorus 'allahu akhbar', after which the sound becomes a nasheed (sung by adult men).

[Defendant's daughter] next asks: 'What is Dawlathu-al-Islaam (court: Islamic State)?'

The defendant replies: 'Oh eehmmm Dawlahtu-al-Islaam? baaqiah! (interpreter: this cry means 'the Islamic State is permanent').

The defendant says: 'Check this one, you just have to see this one.' The defendant says: '(...) wait but we are going to kill you.'

[defendant's daughter] misses baba.

The defendant says: 'Let's do our best to see baba in djenna (interpreter: paradise) and do that as soon as possible. Kuffar are the disbelievers and the Muslims should be in charge. The father of [defendant] was a mujahideen. You can be proud of that.’ 111

On 20 August 2019 the following conversation took place (concisely summarised):

The defendant says that she has to explain something because [defendant’s daughter] does not understand what is being said. The defendant gives a short translation of what was just played. It mentions that between the Muslims and the kuffar there is hatred, no acceptance until the kuffar believe in Allah. The video then continues.

The defendant clearly states that she wants the children to be just like baba.

[defendant's daughter] says she already knows what to say if she is taken.

The conversation is about djenna (interpreter: paradise) and that [defendant’s daughter] should not be sad.

The defendant explains that they will see baba again. They have to fight for djenna and work for it to be there.

[defendant's daughter] starts to cry and says: ' I want baba.'

The defendant says they have to work hard before they can see Baba again.

[defendant's daughter] says that she wants to go to djenna very soon.

The defendant says that [defendant's daughter] should ask Allah to go to djenna as soon as possible. Defendant says [defendant's daughter] should love Allah more than anyone else, so did baba.112

On 1 September 2019, the following conversation took place (concisely summarised):

The defendant says: '(...) said this is the dirty one and they started to scold him. They scold him, don't they? I want that if you ever hear anyone scold the prophet salla allahu allahi wa sallam (interpreter: peace be upon him), then you just have to kill him. Doesn't matter who he is, if someone opens his mouth about Muhammad allahu wa sallam or about Allah, you can kill him and go to djenna, then you don't even have to work anymore. Yes, then you go (unintelligible), but then you just go to djenna. That is just the promise of Allah, He promises you that you can go to Jenna.’

[defendant's daughter] says: ‘When you talk about Muslims? Even when you talk about Muslims?’

The defendant says: ‘Yes, my friend, yes, really.’

The defendant continues with an explanation of forgiveness from Allah. The defendant says she no longer wants to watch TV with the children. The defendant says: 'Look, he's being shot, look he's dying now. He laughs because he sees djenna.' The defendant says that for some people, who are really good to Allah and worship him well, Allah already gives them a place in djennah before they die. The defendant asks whether the children already knew that, to which [defendant's daughter] answers 'Yes'.113

On 14 September 2019, the following conversation took place (concisely summarised):

[defendant's daughter] says: "We are Muslims, crooks are kafir (interpreter: infidels)."

The defendant says, "Very good."

[defendant's daughter] says: "Yes, mushrikeen (interpreter: person who commits idolatry)."

The defendant says, "Very good."

[defendant's daughter] says, 'The police are hmmmm....'

The defendant says, “Mushrikeen.”

[defendant's daughter] says, "Yeah, too."

The defendant then tells the children that she really has yet to explain about the taghut (interpreter: this term is used in jihadi salafism to denote everything that is worshiped instead of god. In jihadi salafist context it is often used to indicate Islamic regimes and monarchies) and what Allah says about it. The defendant briefly explains what the taghut entails, for example kings, governments, presidents, etc. and says that the children should definitively not follow it. 114

On 23 September 2019 at 9:45 hrs, the following could be heard in the residence:

The defendant sings along with a jihadist nasheed, which can be translated as follows:

Come on, kill me as a martyr and bury me alone

I am not satisfied with this vagabond life among people

So give me my weapon, my gear and my equipment

Don't leave me humiliated, for I am weighed down by my wounds

The glory/victory is just a resistance and a leap to death

Relentlessness and combat when the battalions meet

Our ‘takbeer’ (to call Allahu akbar) in the darkness makes the disbelievers tremble

Dead they are awakened by the wrath of the believers. 115

On 23 September 2019 at 20:00 hrs the following conversation took place (concisely summarised):

The defendant says: 'Bad people who kill children are going to hellfire, I showed you last time, the children who are crying, they are being killed, so sad! Yes they have to go to hellfire those people.’

[son 1 of the defendant] says: 'no.'

The defendant says, "Well, look, here." The defendant is presumably looking up a video to show it to [son 1 defendant] and [defendant's daughter]. The defendant says: 'Dawlatu al Islam, are they bad?' The defendant imitates people who say that IS is bad and then says: 'These all go to hellfire, because he lies, lying is not allowed, hey! He kills the people, he

kills Muslims with these planes that bomb, look what they destroy, they destroy our people.”

[son 1 of the defendant] says: 'We are going to kill!’

The defendant says: "They can go to hellfire, you say so far, look at that, look at that little child look! Tfoe (interpreter: spit) on you oh dog that you are! Look, kids are here in man. Are you going to tell me that they should not go to hellfire? This dog! He sends these planes to destroy this Muslim, these dogs, these all go to hellfire.’

[son 1 defendant] asks something, but that is not intelligible. The defendant says: 'Yes, all to hellfire! What flag is this? That's not an Islam flag. He destroys Muslims. They go dancing with a kafir’ (interpreter: infidel). ‘Seriously, this kafir has destroyed the Muslims! See what they are doing to the Muslims’ (interpreter: sounds of war in the background). [son 1 defendant], ‘look what they do.’

[son 1 defendant] says: ‘Is he a Muslim too?’

The defendant says: "He is not a real Muslim, he lies on camera, he says 'Dawlatoe al Islam is naughty, they are bad people.' No, IS they help Muslims, dad was from IS, he also helped Muslims, guess what? Daddy is in djennah (interpreter: paradise), they are going to hellfire, are you going to tell me not to go to djahannam (interpreter: hellfire)?’

[son 1 defendant] says: ‘No.’

The defendant says: ‘Why?’

[son 1 defendant] says: ‘He must go to the hellfire, then he will....’

The defendant says: ‘Yes..?’

[son 1 defendant] says: ‘then he will die!’

The defendant says: ‘So you shouldn't say Allah is naughty, that's not right, is it? Allah is mercyful, Allah does not want them (IS) to go to hellfire at all. Allah also says 'I tell you what you have to do, say sorry don't do crazy things', you do crazy things then you will be punished in hellfire. That's what Allah says, so you shouldn't say.’

[son 1 defendant] says: ‘Sorry daddy.’

The defendant says: "You have to say: sorry Allah that I said you are naughty.’

[son 1 defendant] says: ‘Sorry Allah, that I ….’

The defendant says: ‘I will never say that again...’

[son 1 defendant] says: ‘I will never say that again.’

The defendant says: ‘Because I was explaing a sura from the Koran to you. Do you all want to eat?What do you want to eat?’

[son 1 defendant] says: ‘But mommy, will you please finish this one?’

The defendant continues the video and says: 'Blood of Muslims! Is sad!” [son 1 defendant] says something unintelligible.

The defendant says: 'He's lying! Look at his face. Dawlatu al Islam! Allahu akbar’ (interpreter: Allah is the greatest).

(Interpreter: In the video a man shouts something unintelligible, it is a heated discourse) [son 1] asks something that is not intelligible.

The defendant says: 'No, those are our brothers, we love them, yes.'

[son 1 defendant] also says: 'We have such a flag.'

The defendant says: "Yes. They stand up for Muslims’. The defendant translates what is said into Arabic and says: 'We will love them (interpreter: Muslims who are against IS) even if they hate us.'

After this, a nasheed from the video is sung. The defendant sings along. The defendant says: 'Do you know that some people even hate them (IS), and what do they say (IS)? Doesn't matter, we come to help you, this is what Dawlatoe al Islam is MERYAM, Dawlatoe al Islam baaqiah wa tatamaddad!’ (interpreter: stands and expands: is a slogan of IS).

They do everything that is in the Koran and Sunnah. He used to be good but now he has become a kafir!’(interpreter: From the video you can hear that it is about denouncing Muslims and ruling by what Allah has sent down (Sharia Laws.)

[son 1 defendant] says: 'He looks like a Muslim.'

The defendant says: 'He looks but he doesn't act like that, he thinks it's ok that the dog that was just talking, that I said to you he's a kafir (interpreter: infidel), he thinks it's normal. .. he says we should listen to him, but that man is sending planes to Muslims, how can you listen to him? How can you listen to a person killing Muslims? How? How can listen to him? Impossible'.

[son 1 defendant] says: 'Don't go there, the planes kill people.'

[son 1 defendant] says: “Dog.”

The defendant says: "They are lying about Dawlatoe al Islam."

(Interpreter: They continue watching the video. I hear the shooting of Jews from Sinai area)

(…) In between, a jihadist nasheed is sung in the video.116

On 23 September 2019 at 20:15 hrs, the following conversation took place (concisely summarised):

(interpreter: they are watching a video with the children)

The speaker in the video praises IS, after which the defendant shouts: 'Allahu akbara!'

The speaker in the video says the jihad will continue. A nasheed is then sung. The defendant sings along. The nasheed is accompanied by sounds of shelling.

The defendant says: 'They fight for Muslims these people, they are our brothers and sisters, we love them. Yes, kill his mother, nice.”

[defendant's daughter] says: "Is it a mother?"

The defendant says: 'No, nice for that kafir’ (interpreter: infidel).

The defendant says: 'These are African brothers, all dead! Dawlatoe al Islam (interpreter: IS), ‘Baaaqiah!’ (interpreter: hold your ground!).'

Sounds of artillery and shelling come from the video. The defendant sings the nasheed “On the way to the jihad of the believers.”

[Defendant's daughter] says she wants to watch the video again, whereupon the defendant says she wants to, too, but not now. The defendant sings a jihadist nasheed. The defendant says: 'We as Muslims don't have a king, we have a prince, and do you know where our prince is? This is our prince, Ameer al Moumimin!’ (interpreter: the leader of the believers), ‘Abu Bakr al Baghdadi’ (interpreter: leader of IS). Meanwhile, a jihadist nasheed can be heard.

[son 1 defendant] asks something unintelligible.

The defendant says: 'No, those are our brothers, I love that. Here is our leader of the believers, Abu Bakr Al Baghdadi, that is our prince.”

[defendant's daughter] says, "Why isn't he king?"

The defendant says: 'Because Allah is the only king, therefore we do not say that we have a king.’117

On 8 October 2019 at 12:00 hrs the following conversation took place (concisely summarised) between the defendant and an NN(unknown)-woman:

The defendant says that [first name person involved 3] very much wants to go back, too much. The defendant advised her against that, she herself also made the mistake. The defendant thought that she could raise her children as (whispering) Caliphate, but that is not possible. The defendant says that [defendant's daughter] watches and fully understands all of the "Prophet Stories." The defendant says that she watches that together with [defendant's daughter], that she learns from it. [Defendant's daughter] is said to have said: 'Those fucking kafir, I'm going to kill them, I want to grow up fast.' The defendant laughs and says that [defendant's daughter] already knows what the limits are.

NN-woman says that [defendant's daughter] could get into trouble at school with such statements.

The defendant emphasizes that she wants to get away from here and mentions Turkey. The defendant says she has a 'signal', so if she were to go to Spain, there would be an alert (red screen).

NN woman asks what the defendant "thinks to find there."

The defendant whispers: 'My people, they're all there.’118

The OVC recordings also show that the defendant had a conversation on 5 September 2019 with an unknown person about the fact that she only wants to marry a mujahideen. Furthermore, the defendant said in this conversation:

‘So eh yes... (unitelligible) so you know yourself, there on holiday (laughs) there were only these kind of people. The first people who... I am one of the first people who were all there, wollahi (interpreter: may god bless), there were virtually few munafiqeen (interpreter: hypocrites, so-called believers). Only when I was here in the Netherlands and I went to look ... you know it was on Facebook or on Telegram, then they started to send me photos, for example, of themselves with an AK and I thought to myself, what is this? Photos? Do you have time for photos? Why is he taking pictures? Because at that time... in my time, there was no time. They were all busy, everyone. They all even cried because they had not become shuhadaa (interpreter: martyr, died as a jihad fighter) wollah, and after that only rubbish was left that only went to buy beautiful cars, only those who dare to marry, only those who were chasing the women.Fuck them! No, those are not men’. 119

Furthermore, from a recorded conversation on 23 September 2019, it appears that in response to an audio recording of an NN woman, the defendant said the following in an audio recording:

‘Isn’t it strange, sister, that we are shocked by that, while at the time, nothing was wrong there, Hamdoellah (interpreter: thank God), and then you are shocked by the smallest things (…). And by the way, about the food, what can I say… I ehh really didn't eat anything, that's why I lost a lot of weight when I was pregnant with the second, with my son there. And yes, well, the food there … yuck, that's Syrian, oh my god, disgusting how do they live.’ 120

Telegram chat between Telegramaccount GB and the police

A Telegram private chat took place on 10 October 2019 from 08:49 hrs to 09:18 hrs

between GB (ID [user-ID 3]) and the police (an employee of the Working Undercover- team, hereinafter: WUC-man). All messages sent by the WUC-man after 09:18 hrs were

not seen again by GB. The chat went (concisely summarised) like this:

WUC-man, 08:51 hrs : ‘And is there greenb1rds on WhatsApp?’

GB, 09:08 hrs : ‘Never ever join on whatsapp. We don’t have whatsapp. Is kuffar claiming those links.’

WUC-man, 09:09:00hrs: ‘So no greenb1rds there?’

GB, 09:09:17 hrs : ‘No never on whatsapp because the is no privacy.’

GB, 09:10:55 hrs : ‘I will send u our warning inshaa’Allah.’121

On 10 October 2019 at 09:11 hrs, in the Telegram group ‘GB Admins’

(ID [ID ‘GB Admins’]) GB sent: ‘Do we have whatsapp warning? Some keep asking about whether they should join whatsapp. Whether they should join us on whatsapp.’

The defendant was arrested on 10 October 2019 at 09:19 hrs.122

A mobile phone was found during the arrest of the defendant (One Plus 6), which turned out to be factory reset.123

Defendant’s statement

The defendant has stated to the police that she had been using Telegram since January 2019. She hads created and used the accounts called Nesmu Mutawahiddeen and GB. She had linked her own telephone number to the account Nesmu Mutawahiddeen. She used her own telephone number because she had nothing to hide. She visited Greenbirds on Telegram and she searched for videos and nasheeds. She also wanted to watch videos about the battle because she found them interesting.

The defendant further stated that shortly before the police raided her home, she had reset her phone.124

Furthermore, the defendant stated that [person involved 2] would come to her for a week and that she had booked a ticket for her to fly from London to Amsterdam with Easyjet.125

The defendant stated that she downloaded the instructions found on her Huawei tablet for making the explosive substances TATP and lead azide and for making a bomb belt.126

The defendant stated at the hearing that she followed the proclamation of the Caliphate and the events in Syria, among other events in which Assad played a role. Furthermore, the

defendant stated that she was also aware of the disintegration of the caliphate. It is true that she was in Morocco in July 2019.127

4.5

Interim conclusions of the court

The above evidence shows that messages with extremist jihadist content were shared in several Telegram groups called 'Greenb1rds' (from the Humble investigation) and in Telegram group chats (from the 26Cochran investigation) (hereinafter collectively: the Telegram groups). Those messages glorified IS, spread IS propaganda, recruited (financial) support for IS and urged the killing of the "infidels." Those Telegram groups had a membership ranging between 6 and 190 people.

The Telegram accounts NesmuMutawahiddeen (hereinafter: Nesmu) and GB have also shared extremist jihadist material. The defendant acknowledged that she created the Telegram accounts Nesmu and GB and that she thus participated in Telegram and had conversations with these Telegram accounts. However, she has denied sharing messages of an extremist jihadist nature in the Telegram groups. According to her, "others" have used her Telegram accounts and these people must have shared these messages.

The court disregards this statement of the defendant and considers to this end as follows.

Telegram account Nesmu

Account Nesmu, the Telegram account with ID number ending in [user-ID 1] was linked to the telephone number ending in [telephone number 1]. The telephone with this number communicated in the period from 17 March 2019 up to and including 17 September 2019 via a cellular tower near the home of the defendant in Uithoorn. The defendant stated that she used her own telephone number for the Telegram account Nesmu. The court infers from this that she refers to the number ending in [telephone number 1].

The content of intercepted telephone conversations between the telephone number ending in [telephone number 2] and that of [person involved 1] shows that it was actually the defendant who used this telephone number. On 24 June 2019, for example, the conversation is about her session at the Rotterdam District Court and the defendant and [person involved 1] have an argument over the telephone. The telephone with the number ending in [telephone number 2] also communicated via a cellular tower near the house of the defendant in Uithoorn during these conversations.

Both telephone numbers were also found [person involved 1]'s telephone address list under the name '[first name defendant]', which is the defendant's first name.

The investigation into the phone of [person involved 1] further shows that she '[first name defendant]' had a conversation with [person involved 1] in a Telegram private chat with a

Telegram account ending with ID number [user ID 1] (Nesmu). The SIM card of this telephone number was found in the home of the defendant during the search on 10 October 2019.

In the Telegram private chat between '[first name defendant]' and [person involved 1] on 24 June 2019, [person involved 1] asked forgiveness from [first name defendant] and [first name defendant] asked forgiveness from Allah. This could very well refer to the aforementioned argument over the telephone. At the end of the private chat on 30 June 2019, the communicated about the fact that '[first name defendant]' was going to Morocco. It appears from the file that the defendant was in Morocco during that period, which she confirmed at the hearing. In that conversation, [person involved 1] further said that he saw her under her name ([first name defendant]) in the Telegram group ending with the ID number [ID chat 10]. ‘[first name defendant]’ said this was because he filed her under that name, but the others see her under the name NesmuMutawahiddeen. This means that if [person involved 1]'s phone shows '[first name defendant]', these messages must have been shared by the Nesmu account.

In the opinion of the court, the above leads to the conclusion that it was actually the defendant who participated in this private chat.

Striking similarities can be seen between this private chat and a number of Telegram groups. For example, on 25 June 2019, the defendant sent [person involved 1] a message in private chat with the title "talk yourself into martyrdom operations." The same message was shared the next day by "[first name defendant]" in the Telegram group ending in ID number [ID chat 10] (Chat 10). On 25 June 2019, [person involved 1] asked the defendant for a "GB-link" which presumably means a link to a Telegram group of Greenbirds. The defendant later sent a link. This link had already been shared in four other Telegram groups by '[first name defendant]' (Chats 3, 4, 5 and 7). On 26 June 2019, the defendant sent a message about joining a group leading the war of mind and souls against the international coalition in the private chat to [person involved 1]. On the same day, this message was also shared by '[first name defendant]' in the Telegram group ending in [ID chat 10] (Chat 10). Officers who listened to the defendant via the OVC heard at 23:19 hrs in the house of the defendant that an Arabic text was being played. One of the officers recognised the text as part of a longer speech by Abu Muhammad al-Adnani, a spokesman for IS who died in 2016. Nesmu, Later it turned out that Nesmu had posted this speech as an audio message at 23:04 hrs in the Telegram group Greenb1rds ending with ID number [ID Telegram group 4].

Telegram account GB

With regard to Telegram account GB, a WhatsApp chat conversation was found in the telephone of [person involved 2] with the telephone number of the defendant ([telephone number 2]) conducted on 17 August 2019. The chat was about picking up [person involved 2] from the airport by the user of that number. At some point [person involved 2] stopped responding which happened to be at the moment [person involved 2] was stopped in England and arrested. The defendant herself stated that [person involved 2] was coming over to see her, that she was to pick her up and that she had booked a ticket for her. That ticket in the name of [person involved 2] was also found on the Huawei tablet of the defendant. The OVC recordings show that on 18 August 2019, she said to her daughter that it was such a shame that [person involved 2] could not come. On the basis of this, the court

concludes that this conversation actually took place between the defendant and [person involved 2].

In [person involved 2]'s device, a Telegram private chat between the accounts GB and Greenb1rds. This chat, on 21 September 2019, was about the health of the user GB and that it was such a shame that the user of Greenb1rds could not come and that the children of GB had been so looking forward to this. They also talked that day about the fact that GB would go to a bird place. The OVC show that the defendant went to Avifauna with the children that day. The court infers from this that the user of GB was the defendant and that the account Greenb1rds was in use by [person involved 2]. The conversations that followed on 23, 24 and 25 september 2019, are logical follow-up conversations. The court thus establishes that the defendant also participated in those conversations under the account name GB. In this conversation, among other things, Greenbirds was discussed, i.e. that GB may use the Greenbirds logo as a profile picture and that 'we are all GB', whereby the court assumes that “GB” means Greenb1rds.

Also notable is that on 25 September 2019 at 20:34 hrs, GB asked [person involved 2]: ‘why did [person 2] leave?' Subsequently, [person involved 2] sent GB a printscreen of the 'GB (admins) Telegram group in which GB sent a message: 'may Allah cure him.' GB then said to [person involved 2] in the private chat at 20:38 hrs 'I did not curse him. I said may Allah curse him.' From this the court infers that the person behind GB in the group chat 'GB (admins)' is the same person as the person behind GB in the conversation with [person involved 2], i.e. the defendant.

It is also relevant that the WUC man started a private chat with GB on 10 October 2019. The chat started at 8:49 hrs and was about whether Greenbirds was also on WhatsApp. GB then said that WhatsApp is not secure and that it has no privacy and that the kuffar claim the links there. At 9:11 hrs, in the GB admins group, GB asked "Do we have Whatsapp-warning?" because some people kept asking if "they should join us on whatsapp." These messages can also be seen in logical cohesion and seem to originate from the same person. The conversation with the WUC man lasted until 9:18 hrs after which the messages were no longer read by GB. The defendant was arrested by the police at 9:19 hrs that day and the defendant's phone was found to have been reset to factory settings. The defendant also stated that she did so shortly before her arrest.

Telegram accounts Nesmu and GB together

The evidence also shows that in the night of 25 to 26 September 2019, Nesmu and GB sent numerous messages over a period of about two hours, while it can be heard via the OVC that the defendant is then awake. The next day it is heard via the same OVC that she said to someone that she was “an awful lot on Telegram.” It is also notable that GB in a private chat with [person involved 2] on 23 September 2019 at 15:40 hrs [person involved 2] sent a Threema request. That same day, a Threema chat is opened at 15:41 hrs in a private chat between Nesmu and [person involved 2].

Conclusion of the court

This all leads to the conclusion that it has been the Defendant who has always shared messages as Nesmu and GB in the Telegram groups, including extremist jihadist material. That 'others' have used her accounts to share the extremist jihadist material is completely implausible in view of the foregoing. In addition, this alternative scenario described by the defendant is also completely illogical. After all, the 'others' already had Telegram accounts themselves to share messages. Why would they use her Telegram accounts for that? The defendant was not allowed to post messages about those 'others' because she was a 'sister' and not a 'brother', according to the defendant, but those 'others' had made her an administrator. A function with more rights than a 'normal' member of the group. That those 'others' made her administrator so that she could use the 'library' is completely unsubstantiated. In addition, those 'others' could also have watched the private chats of the defendant, including those with [person involved 1], in which their romantic relationship comes to the fore, as well as the chats with [person involved 2], in which not only very personal conversations were held, but also conversations that presumably involved the attack on St. Paul's Cathedral planned by [person involved 2]. Moreover, the defendant was unable to tell who those 'others' were supposed to be.

The examples given by the defence in which it seems illogical that Nesmu and GB were used by the same person do not change the foregoing. After all, the link that Nesmu shares to Threema in a group chat and the message from GB in the same group that she is impressed by Threema may well have both been posted by the defendant. After all, in a group chat, the defendant can post messages under different usernames and can also respond to a message from herself. The fact that Nesmu says a few hours later in a private chat to [person involved 2] that she doesn't like Threema, likes Telegram better, but thinks Threema is great for private chats, does not therefore mean that Nesmu and GB are used by two different people. After all, the defendant may be impressed by Threema, and think it's great for private purposes, but still find Telegram better. Also the fact that at some point in a group chat Nesmu indicates that she is gone for two hours, but after eleven minutes still a message is posted by GB, partly in light of all the evidence mentioned above, does not mean that these accounts therefore were used by different people. It is also quite conceivable that the defendant still wanted to respond to the message about a 'sister' with strange questions.

In view of the above, the court determines that it has always been the defendant who participated in the Telegram groups as Nesmu and GB. The court further infers from the findings from the OVC conversations, as referred to in paragraph 4.4.2, that from the late evening of 25 September 2019 up to and including (in any case) 26 September 2019 at 15:50 hours, the defendant in her residence in Uithoorn. Given the foregoing, viewed together and in relation to each other, the court finds that the defendant in any case posted the messages that she shared on 25 and 26 September 2019 from her home in Uithoorn and that she posted, now that there is no evidence to the contrary, the other messages that were shared on a different date also from the Netherlands. The messages described above were in any case not posted during the period that the defendant stayed in Morocco, i.e. from 2 July up to and including 17 July 2019.

5. Indictment I: participation in a terrorist organisation and in a criminal organisation whose object is to commit war crimes (count 1)

5.1

Introduction

Participation in a (terrorist) criminal organisation is punishable under Articles 140 and 140a of the Criminal Code. This criminalisation is based on the idea that public order must be protected against organisations that intend to commit crimes. This is an independent criminal offence. It does not matter whether the crimes intended by the organisation have been committed or whether attempts have been made or even criminal preparations have been made. Nor is it important whether a participant in the organisation has participated in crimes committed (or attempted or prepared) by other participants. A person is punishable just because of his participation in a criminal organisation.

5.2

Position of the Public Prosecution Service

The Public Prosecution Service has taken the position that it can be legally and convincingly proven that the defendant participated in IS, an organisation which, according to the Public Prosecution Service, still existed during the period referred to in the indictment and was active as an organisation. The defendant has presented herself as a supporter of a radical Islamic ideology. With [person involved 2] and [person involved 1] she participated in and managed Telegram groups/channels Greenb1rds, which groups, according to the Public Prosecution Service, belonged to the media strategy of IS. In the groups/channels Greenb1rds IS was glorified and calls were made to continue the fight of IS. The defendant herself has shared pro-IS material or provided others with a platform to do so. She has played an important role in setting up and running the social media platform Greenb1rds. The defendant was a member/administrator of Telegram groups in which only IS material could be found. She herself has spread the oath of allegiance to IS on Telegram.

By distributing the various messages/videos referred to in the indictment, the defendant contributed to the dissemination of knowledge and intelligence for the purpose of committing an attack with terrorist intent and/or the incitement thereto. It is known that IS is an organisation that aims to commit terrorist crimes.

The Public Prosecution Service has also taken the position that there has been a non-international armed conflict from 1 January 2012 in Syria and Iraq. According to the Public Prosecution Service, IS also had the aim of committing war crimes, as is apparent from the systematic nature of these war crimes and their public character. It cannot be otherwise than that the defendant was aware of this. By distributing videos, images and texts online, the defendant has contributed to IS's purpose of humiliating, punishing and displaying captured fighters and dissenters who did not (or no longer) participate in the hostilities, intimidating the enemies of IS, subjugating the population, demonstrating IS’s superiority and preparing others mentally to participate in IS’s struggle.

5.3

Position of the defence

The defence has taken the position that it cannot be legally and convincingly proven that the defendant participated in IS. To that end, the defence argued that there was no longer any question of the terrorist organisation IS during the period referred to in the indictment.

In the alternative, the defence took the position that IS is not an organisation with the intent to commit war crimes, that the Greenb1rds Telegram groups do not fall within IS's media strategy, that the actions of the defendant cannot be qualified as participating acts and that the necessary intent to participate is lacking. Nor is there any close and conscious cooperation between the administrators, so that co-perpetration cannot be proven.

Finally, the defence pointed to the fact that it is assumed in case law that merely possessing and distributing propaganda material is insufficient for participating in a terrorist organisation. He referred in particular to the judgement in the case [person involved 1], who was acquitted of participation in a terrorist organisation, while making a greater contribution to the Greenb1rds group than the defendant. For that reason alone, the defendant should be acquitted, according to counsel.

5.4

Assessment of the charges

5.4.1

Organisation

Legal framework

An organisation within the meaning of Articles 140 and 140a of the Criminal Code is understood to mean a partnership with a certain durability and structure between the defendant and at least one other person. It is not required that it be established that one must have collaborated with, or at least must have been acquainted with, all other persons who are part of the organisation or that the composition of the partnership is always the same. Indications for the existence of such a partnership can be, for example: common rules, conducting consultations, joint decision-making, a division of tasks, a certain hierarchy and/or sections.

The closer and more sustainable cooperation is, the more likely the requirement of a partnership with a certain structure will be met. Such a partnership can arise coincidentally and over time because people discover 'as they go along' that they have a common goal, the realisation of which is served by sustainable cooperation. Such a partnership does not depend on rules, explicit agreements or hierarchical relationships, but can indeed be sustainable and derive a certain structure from working towards a common goal.

Is IS (still) a criminal orgtanisation?

The defendant is accused of having participated, from the Netherlands, in the (terrorist) criminal organisation IS (or ISIS or ISIL). The first question that arises in this context is whether IS is an organisation within the meaning of 140 and 140a of the Criminal Code and whether this was still the case in the period referred to in the indictment (January-October 2019). The court states first and foremost that IS (ISIS/ISIL) has been on the UN and EU sanctions lists of terrorist organisations since 30 May 2013 and 1 July 2013 respectively.128 The court further infers the following from the facts and circumstances as mentioned above under paragraph 4.4.1.

In June 2014, the caliphate of IS was proclaimed. IS territory was in Syria and Iraq in 2014 and 2015. Since 2014, the leadership has been divided into several councils, including a media council and a sharia council. There is no doubt that at that time there was an organisation within the meaning of 140 and 140a of the Criminal Code. However, after the fall of the caliphate of IS in March 2019, the armed struggle waged by IS has not stopped. In the period from July to September 2019, there was an accelerated build-up of IS in the form of an underground network. IS currently consists of so-called underground cells. There is also still a hierarchical structure. Since the end of 2019, Amir Muhammad Sa'id Abdal-Rahman al-Mawla has been the new leader of IS and IS' strategy has not changed. There is still (digital) propaganda and attacks are committed in the name of IS. There are still about 10,000 fighters, of which 3000 are foreign fighters and IS still has many facilities and resources including weapons.

Interim conclusion long-lasting and structured partnership

Contrary to the defence, the court is of the opinion that the foregoing shows that also in the period referred to in the indictment, IS could be regarded as a long-lasting and structured partnership as referred to in Article 140 and 140a of the Criminal Code..

5.4.2

Object to commit terrorist crimes

Legal framework

Furthermore, for a finding of facts with regard to Article 140 of the Criminal Code, it is required that the organisation must have the intention to commit crimes. The aim is primarily relates to the immediate goal: that which one imagines to be the direct target. The criminal organisation need not have a purely criminal main objective, it can also – partly – have a legal aim. The organisation may also have the intention to commit crimes if these crimes are committed to achieve a reasonable or noble end goal in the organisation's image. What is special about article 140a Cc, the article about the criminal terrorist organisation, is that a double objective is required: there must be an intention to commit crimes with a terrorist objective. In order to prove the existence of a criminal terrorist organisation, the immediate aim must therefore be to commit terrorist crimes.

For the proof of the aim, significance can be attributed to crimes that have already been committed within the framework of the organisation, the more durable or structured nature of the cooperation, as may be apparent from the mutual division of activities or mutual coordination of activities of participants within the organisation with a view to achieving the common goal of the organisation and, more generally, to the planning or systematicity of the activities carried out for this purpose by participants within the organisation.

Terrorist Offences Assessment Framework

In Article 83 of the Criminal Code, the legislator has determined which offences qualify as terrorist offences. What they have in common is that they must have been committed with a terrorist objective. This is defined in Article 83a of the Criminal Code as “the intent to seriously intimidate the population or part of the population of a country, or to unlawfully compel a government or international organisation to do, not do or tolerate something, or to

seriously disrupt or destroy the fundamental political, constitutional, economic or social structures of a country or an international organisation”.

Did IS intend to commit terrorist crimes?

As already considered above, IS has been on the UN and EU sanctions lists of terrorist organisations since 30 May and 1 July 2013 respectively. IS has also been classified as a terrorist organisation in the period 2014-2018 in consistent case law.129 The court further infers the following from the evidence included in paragraph 4.4.1. IS wanted to violently impose a purely Islamic society and/or state based on Sharia - all this as perceived by them - on the civilian population. With this they intended to destroy the fundamental political structure of Syria as referred to in Article 83a of the Criminal Code. To this end, IS has committed crimes on a large scale for years. After the fall of Baghouz in March 2019, the armed struggle continued. As already considered above, IS has been operating in underground cells ever since. It is reported that ISIS continued to pose a significant threat to the region in 2019. In January, March and April 2019, IS claimed multiple attacks in the region with the aim to destabilize the situation. During that period, via official publications that were widely shared online, IS also called for the killing of infidels and the commission of (suicide) attacks worldwide.

Interim conclusion

On the basis of the above, the court establishes that the crimes committed by IS, such as murder, manslaughter, arson and the initiation of explosions and the like, and the possession of weapons, also in the period referred to in the indictment, were committed with a terrorist intent and thus can be considered to be terrorist crimes. In view of the systematic nature of committing these crimes, IS also intended to commit these terrorist crimes.

5.4.3

War crimes: considerations with regard tot he application of international humanitarian law

Assessment framework war crimes

War crimes are violations of international humanitarian law. International humanitarian law only applies when there is an armed conflict on the territory of one of the contracting parties. Before the question can be answered whether IS also intended to commit war crimes, the question must therefore first be asked whether international humanitarian law is applicable in this case. With regard to the question of whether there is an armed international conflict, a distinction can be made between international armed conflicts and non-international armed conflicts.130 In view of the fact that the indictment focuses on war crimes during a non-international armed conflict, for determining the type of armed conflict and assessing it, the court will limit itself to the non-international armed conflict in the assessment framework.

The International Criminal Tribunal for the former Yugoslavia (hereinafter: ICTY) has further elaborated the concept of non-international armed conflict and formulated criteria for assessing whether this is the case. According to established case law, a non-international armed conflict exists if there is persistent armed violence and the armed groups involved are sufficiently organised.131 Factors that may be important for determining the intensity of the violence are the number, duration and intensity of the confrontations, the amount and type of ammunition fired, the type of weapon and other military equipment used, the number of

casualties, the extent of material damage and the number of internally displaced persons. The involvement of the UN Security Council can also be an indication of the intensity of the conflict.132

The following factors are important for determining the degree of organisation of the armed groups in this context: the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact 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 movement and associated logistics; the ability to define a unified military strategy and the use of military tactics; and the ability to speak with one voice and negotiate and conclude agreements such as a ceasefire or a peace pact.133

If it has been established that there is a non-international armed conflict, international humanitarian law will apply until a peace agreement has been concluded or when the general military operations have ended.134 According to the case law of the ICTY, a decrease in violence or a reduced degree of organisation within an armed group is no indication that there is no longer a non-international armed conflict.135

Is there a non-international armed conflict?

This court previously established in the Nashville case that in Syria in the period from 1 January 2012 up to and including at least the beginning of 2019, there was a non-international armed conflict in Syria between Syrian government forces on the one hand and the fighters of (among others) the armed groups ISIL/ISIS/IS and Jabhat al-Nusra (hereinafter: JaN) on the other hand. In that case, this court also ruled that the same applies to Iraq in the period from January 2014, in which there is a non-international armed conflict between the Iraqi government army and ISI/IS. The question is whether this case also involved a non-international armed conflict in Syria and Iraq during the entire period referred to in the indictment, so up to and including 10 October 2019.136 To this end, the court considers as follows:

In the opinion of the court, the requirement of protracted armed violence has been met. During the period referred to in the indictment, numerous large-scale military operations between the parties involved have been carried out, using military weapons and vehicles such as tanks and artillery. The number of fatalities in 2019 is estimated at 200,000-500,000. 5.6 million people have fled Syria and Iraq and 5.9 million have been displaced in Syria. More than 11 million people are in need of humanitarian aid, according to the United Nations, and several towns and villages in Syria and Iraq have been destroyed. A peace plan was also negotiated, the United Nations Security Council condemned the Syrian regime and the conduct of IS. In the period from July to September 2019, there was an accelerated build-up of IS in the form of an underground network in Syria and there was an increase in attacks. There are still many imprisoned IS fighters in camps, and there is still a hierarchical structure and a leader where relevant. In 2019, it was estimated that there are still some 10,000 fighters, of which 3000 are foreign fighters, and IS still has many facilities and

resources.137 This satisfies the requirement of continued armed violence.

The court is of the opinion that – partly on the basis of the facts and circumstances mentioned above under 5.4.1 – the required degree of organisation of the armed group has also been met. After all, the organisation had a centralised organisational structure and, up to and including March 2019, exercised control over a territory and conducted large-scale military operations. In addition, there were various partnerships with other organisations and, according to UN reports, the strategy has not changed.

Interim conclusion with regard to international humanitarian law

The court is of the opinion that there was a non-international armed conflict in Syria and Iraq throughout the period referred to in the indictment. The rules of international humanitarian law with regard to non-international armed conflicts therefore apply. This in any case concerns common Article 3 of the Geneva Conventions.

5.4.4

Object to commit war crimes

It has been charged that IS had intent to commit the war crimes referred to in Article 6(1)(a) and (c) of ICA. Article 6(1)(a) and (c) of ICA reads, insofar as relevant:

Anyone who, in the case of an armed conflict not of an international character, commits a violation of article 3 common to all of the Geneva Conventions, namely the commission against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those who are placed hors de combat by sickness, wounds, detention, or any other cause, of one of the following acts:

a) violence to life and person, in particular killing of all kinds, mutilation, cruel treatment and torture;

c) outrages upon personal dignity, in particular humiliating and degrading treatment;

[…] shall be punished […].

Below, the court will always first set out the legal framework of these various war crimes, after which for each of them it will examine the question of whether IS had the intention to commit them during the period referred to in the indictment.

War crime ‘killing’ (as referred to in Article 6(1)(a), ICA)

The description of the offence in Article 6(1)(a), ICA is linked to article 8

(2)(a)(i), of the Rome Statute. For the interpretation of the criminal elements of the criminalisation of war crimes, the court focuses on international law, such as the Statute of the International Criminal Court and the Elements of Crimes drawn up on the basis of Article 8 of the Statute of the Criminal Court, which serve as an aid in the interpretation of the crimes. According to the Elements of Crimes, the following factors are important for determining whether the alleged acts can be regarded as a war crime:

  1. The defendant has killed one or more persons;

  2. This person or persons were hors de combat, or civilian, medical or religious personnel who did not take an active part in the hostilities;

  3. The defendant was aware of the factual circumstances that caused the status;

  4. The conduct took place in the context of a non-international armed conflict,

  5. The defendant was aware of the factual circumstances of the armed conflict.

Did IS have the intention to commit the war crime ‘killing’?

Contrary to the defence, the court is of the opinion that it has been sufficiently established that during the conflict, during the period referred to in the indictment, IS had the intention to kill persons protected under international humanitarian law, punishable as a war crime pursuant to Article 6 paragraph 1 under a ICA. In this regard, the court refers to the evidence as included under section 4.4.1, which, in summary, shows that IS executes, beheads and kills civilians and persons no longer participating in combat on a large scale and as part of their modus operandi. The fact that IS does not distinguish between persons who do or do not participate in the struggle is apparent from their actions and the emphatic call to kill infidels, regardless of whether they are civilians or not. Not only does IS make no distinction between people who do or no longer take part in the struggle, but also religious minorities, civilians and prisoners are systematically and specifically the subject of targeted attacks, whether or not mass executions and beheadings. These executions and beheadings often took place publicly, with the aim of deterring the population, enforcing submission to IS and for the purpose of retaliation. Thus, the conduct took place in the context of the non-international armed conflict and IS was aware of the actual circumstances of the armed conflict.

War crime “outrages on personal dignity, in particular humiliating and degrading treatment” (as referred to in Article 6 paragraph 1 under c ICA)

According to the Elements of Crimes, the following factors are important for determining whether the charged acts can be regarded as the war crime “outrages on personal dignity”:

  1. The defendant has assaulted the victim's personal dignity and/or treated the victim humiliatingly and degrading;

  2. This person or persons were hors de combat, or civilian, medical or religious personnel who did not take an active part in the hostilities;

  3. The defendant was aware of the factual circumstances that caused the status;

  4. There is a nexus between the alleged conduct of the defendant and the armed conflict.

Humane treatment of protected persons in times of war is the core of international humanitarian law. Common Article 3 of the Geneva Conventions includes the requirement of humane treatment during a non-international armed conflict. Common Article 3, paragraph 1 of the Geneva Conventions furthermore includes various prohibited behaviours resulting from the requirement of humane treatment, including ourgaes upon personal dignity, in particular humiliating and degrading treatment of persons not directly involved in hostilities. The interest protected by this article is the honor and dignity of these persons.

The Geneva Conventions and the Additional Protocols do not define what constitutes “outrages upon personal dignity”. In the case law of the ICTY it has been considered, among other things, that it concerns conduct that the defendant has intentionally committed or participated in, which will generally be viewed as seriously humiliating or degrading treatment or which would otherwise constitute outrages upon personal dignity.138 Objective criteria play a role in this, such as the form, duration and intensity of the violence, possible mental suffering,139 as well as the cultural and/or religious background of the person involved.140 As a result, behaviours that are, for example, degrading to someone of a certain nationality, culture or religion, while not necessarily so to others, also fall within the scope of the concept of outrages upon personal dignity.141 The humiliation must be substantial and serious, but it does not have to be permanent.142 Physical or mental pain is not a requirement.143 It must be established that the defendant had knowledge of the degrading and degrading consequences of his or her conduct or omission.144

The victim does not need to be personally aware of the alleged conduct.145 Deceased persons can also be victims of the crime of outrages upon personal dignity. International humanitarian law aims to protect the human dignity of persons also after death against looting, mutilation and dehumanisation. In several European judgements convictions have been pronounced for mutilating deceased persons 146 and posing with the head of a deceased person and subsequently sharing photos and videos thereof.147 The alleged act or omission may in itself constitute an outrage upon personal dignity, but may also constitute an outrage on personal dignity by assessing the act or omission in the context in which it occurred.148

Did IS intend to commit the war crime ‘outrages upon personal dignity’?

Contrary to the defence, the court is of the opinion that it has also been established satisfactorily that during the conflict, at the time of the indictment, IS had the intention of committing outrages upon personal dignity, punishable as a war crime in article 6 paragraph 1 under c of the ICA. In this regard, the court refers to the evidence as included under section 4.4.1, which, in summary, shows, among other things, that executions were carried out openly and people were encouraged to come and witness them and bodies of victims were publicly exhibited. The fact that the deceased were not buried, but were displayed in this way, is without doubt an assault on personal dignity. The court also takes into account the fact that the Islamic faith has a large number of religious rituals or regulations after the death of a Muslim, including the importance of being buried as soon as possible after death and performing ritual ablutions. By exhibiting deceased religious Muslim minorities and

thereby depriving them and the faith community of these religious rituals, IS has violated the personal dignity of these deceased. Furthermore, IS has filmed the beheading or otherwise killing of persons who were no longer taking part in the battle on a large scale and distributed them online via images and videos. In doing so, IS has not only exhibited the deceased on the spot as a trophy or warning to others, but has also done this online with a wide reach and ensured that a large number of people have been given the opportunity to take note of the footage and that the humiliating and degrading treatment continues. As shown by the IS footage, these victims were almost exclusively prisoners, civilians or aid workers, in any case people who were no longer taking part in the battle. These outrages on personal dignity took place publicly or otherwise, with the aim of deterring the population, enforcing submission to IS, retaliation and propagating IS superiority. Thus, the conduct took place in the context of the non-international armed conflict and IS was aware of the actual circumstances of the armed conflict.

5.4.5

Participation

Legal framework

It should be borne in mind that participation in a criminal (terrorist) organisation can only take place if the person involved belongs to the partnership and has a share in, or offers support to, behaviour that is intended to or is directly related to the realisation of the purpose of the organisation. Any such contribution, also known as an act of participation, to an organisation may be punishable. An act of participation may consist of the (co-)perpetration of any crime, but also of the provision of assistance and (therefore) the performance of acts that are not punishable in themselves, as long as the above-mentioned share or support can be referred to. Just sympathising with an organisation is not enough.

For participation, it is sufficient that the person involved knows in general (in the sense of unconditional intent) that the organisation intends to commit (terrorist) crimes. Any form of intent on the concrete crimes specifically intended by the organisation is not required.

Did the defendant participate in IS?

Although the defendant has denied this, the court deduces from the evidence that the defendant adhered to the radical extremist ideas of IS.

First of all, it is important that there are strong indications in the file that the defendant was in the caliphate in Syria in 2015 with her first husband. For example, she says during tapped conversations that she was one of the first people who were "there" and that, when she was back in the Netherlands, she saw that people posted photos on Facebook with an "AK" and that she in "her time there" didn't have time for that. She goes on to say that they were crying at the time because they had not become martyrs and that after that, only rubbish was left. She also talks about the fact that Syrian food is 'disgusting'. She has also told her children that her husband died as a “mujahideen” and that “daddy belonged to IS”. She also says that she would very much like to “return".

The wiretapped conversations also show that when asked by her daughter what “Dawlathu al islaam149 means, the defendant says in Arabic that Islamic State is permanent. She also tells her daughter that Muslims should be in charge of the 'kuffar', the infidels, that there is hatred between them and that if someone abuses the prophet you can kill him and that you then go to Djenna (paradise). She also wants to go to Djenna with her children 'as soon as possible'. She also tells the children that IS helps Muslims and that Abu Bakr al Bhagdadi is 'our prince', the leader of the believers.

Many documents and videos containing extremist jihadist material were also found on the Huawei tablet of the defendant. For example, there were documents from official IS media channels glorifying martyrdom in the context of armed struggle and giving simple instructions for making the explosive substances TATP and lead azide and for making a bomb belt. The videos included beheadings (executions and mass murders) and terrorist threats against the infidels/the Western world/political leaders as well as IS training videos and sermons from senior leaders within IS.

All this leads to the conclusion that the defendant adhered to the radical extremist ideas of IS during the period referred to in the indictment. However, mere adherence to or belief in a particular ideology is not in itself punishable. However, the defendant went further: she has not only remained a sympathizer of IS, but has actually made a contribution to IS. To this end, the court considers as follows.

It follows from the evidence that she has been the administrator and member of several Telegram groups called Greenbirds (or a similar name). In those Telegram groups, a lot of jihadist/extremist material was shared about the caliphate, about the legitimacy of killing infidels, about not distinguishing between civilians/combatants and about shedding the blood of infidels. It also follows from the evidence that she was a member of ten Telegram groups (chat 1 up to and including 11, with the exception of chat 6) in which a lot of extremist jihadist material was also shared. PayPal links were also shared in those chats to raise money for the financial jihad. These groups had names like “lions of the media” (chat 2) and “the servants of the slaughter” (chat 5). In all Telegram groups, members, including the defendant, shared messages from official IS channels.

The defendant has disseminated the basic principles of IS in these groups, either as an administrator or as a member. For example, she shared lectures by radical preachers of IS and messages from official IS channels, messages about glorifying the fight against infidels and a call to reject democracy. She also shared messages accusing people who had left the IS area and the message that IS is permanent. She also shared a chat message saying that the financial jihad was important, asking whether people wanted to donate money for the armed struggle and she shared PayPal links. She also shared a post effectively seeking new people interested in joining a group that ‘wanted to lead the war against the international coalition". In doing so, the defendant asked for evidence of "nusra" (i.e. aid) to IS. She also shared a post calling for Telegram groups to be opened to “fight to keep the flag of Tawhid in top”. She also shared posts calling for participation in the armed struggle, as well as guides on how to commit attacks. If she was asked by another member/admin of the groups to forward

a link or post a particular message, she did so. On 27 September 2019, the defendant shared the oath of allegiance (bay'a) to IS in TG 6 (a Greenbirds group).

As explained above under section 4.4.1, IS uses official and unofficial channels to spread their propaganda worldwide in order to maximize the reach of the IS extremist community. In Dabiq 12 it is described that the struggle on the battlefield and the media campaign on the ideological battlefield support each other. The role of the 'media operative' in the jihad is not inferior to the struggle on the battlefield, where 'media operative' is a broad concept and extends from the creator of images to supporters who spread online propaganda. As considered, Telegram has been at the centre of IS supporters' online communication strategy. The Telegram groups Greenb1rds may not belong to the officially recognised media channels by IS, but they fit within the media strategy of IS. In view of the nature and content of chats 1, 2, 3, 4, 5, 7, 8, 9, 10 and 11, the court is of the opinion that these groups also fit within it.

In the opinion of the court, by frequently distributing official and unofficial IS material via various Telegram groups, the defendant has in fact made a contribution to the propaganda system of IS, the malicious intent of which is a given in view of all the foregoing, and has become part of the IS alliance. In the court's opinion, she has transcended the role of supporter and actually started participating in the organisation. After all, she has knowingly and willingly made the ideas of IS accessible to a wider public and thus took part in and provided support for behaviour that is aimed at and directly related to the realisation of the aim of that IS. That she also had the goal of actually participating in IS is apparent from the oath of allegiance to IS that she shared. Moreover, she was aware of the importance for IS of spreading propaganda online in view of the official publications/lectures she shared and the fact that she shared an announcement of the aforementioned issue number 12 of Dabiq herself in one of the groups (chat 10).

The fact that the defendant was really part of the IS online community is also shown by the chat and telephone contact that the defendant had with [person involved 2]. Indeed, in the chats with [person involved 2] it can be read that [person involved 2] sends a Greenbirds logo to the defendant for her profile picture, with the defendant telling [person involved 2] that she was afraid to ask because Greenbirds “is your baby, I didn't want to take it too far”. To this [person involved 2] says that “we are all part of gb.” The defendant would also like a backup from [person involved 2] so that she "can go through with it.” [person involved 2] indicates that she is going to make a baya video (farewell video) and that “you all” can see it via IS media and that “your administration” can publish it when she is no longer there. This contact was made via the Threema application on which the defendant had an ISIS logo as a profile picture. The court infers from this that the defendant was apparently in close contact with [person involved 2], was part of Greenbirds together with others and that she was more than just a follower of the community, but that she wanted to continue the groups of Greenbirds of [person involved 2] after the latter had died while committing a terrorist attack.

The defendant also knew, given the content of the documents she distributed in the context of all the material shared in those groups, what IS's intent was. The court also took into account the nature and content of the (IS) material found on the Huawei tablet, the communication with [person involved 2] and the statements she made about IS, including

against her children. Finally, the court notes in this context that the defendant claims to have followed the news about IS and was thus aware of the atrocious crimes committed by IS.

The statement of the defendant that she was only in a difficult phase in her life with her children and that she only talked to her children in an emotional state, but that this should not be taken seriously, is considered completely implausible by the court. Although it follows from the file that the defendant had problems with youth care services, it is impossible to see why she discussed such radical matters with her children over a period of months. Moreover, this does not explain all the conversations she has had with others on this subject, nor all the extremist jihadist material that was found on her and which she shared.

Various court judgements, including the judgement of [person involved 1] (Court of Rotterdam dated 13 August 2020, 10/960101-19), have ruled that the mere possession and distribution on social media of propaganda material for participation in a terrorist organisation is insufficient. However, in the present case - in view of everything described above - it is not a question of merely possessing and sharing propaganda material, but the defendant has transcended the role of a mere supporter and has actually started participating in IS, which was the intention she had. It is not apparent from the file available to the court that [person involved 1] played a larger role than the defendant had in Greenbirds.

5.4.6

Complicity

The court cannot establish that the defendant has carried out her actions in close and conscious cooperation with another person or others. The court will therefore acquit her of this part of the charges.

5.4.7

Conclusion

In view of the foregoing, the court considers it legally and convincingly proven that the defendant participated in a terrorist organisation and in a criminal organisation whose object is to commit war crimes, being IS, as charged under 1 above.

5.5

Conclusive evidence

The court declares with regard to the defendant that:

in the period from 1 January 2019 up to and including 10 October 2019 in Uithoorn, at least in the Netherlands, she participated in an organisation, being Islamic State (IS),

which organisation aims to commit terrorist offences, i.e.:

to deliberately set fires and to cause an explosion, while there is the risk of common danger to property and danger of serious bodily injury and danger to life for another, to be committed with a terrorist intent and

to commit manslaughter with a terrorist intent and

to commit murder with terrorist intent and

to be in possession of one or more weapons and ammunition of categories II and/or III, with a terrorist intent and with the intent to prepare or facilitate a terrorist offence;

AND

that, in the period from 1 January 2019 up to and including 10 October 2019 in Uithoorn, at least in the Netherlands, she participated in an organisation, namely Islamic State (IS), which organisation has the purpose of committing war crimes, namely:

attacks on life or physical assault, in particular killing in any way and

outrages upon personal dignity, in particular humiliating and degrading treatment,

of persons who (then) did not (any longer) take part directly in the hostilities, i.e. civilians and personnel of armed forces who had laid down their arms and persons who had been put hors combat by illness and/or wounding and/or imprisonment and/or any other cause,

in the event of a non-international armed conflict on the territory of Iraq and Syria, contrary to the provisions of common article 3 of the Geneva Conventions of 12 August 1949.

6. Indictment I: Committing the war crime referred to as ‘outrages upon personal dignity (count 5)

6.1

Introduction

The court has established in paragraph 4.5 that the defendant has distributed two videos with her Telegram account NesmuMutawahiddeen. It concerns a video of the burning of four people alive by IS fighters (hereinafter referred to as: video 1), to which the defendant had added the caption 'like roasted chicken'. The defendant distributed this video on 26 September 2019. In addition, on 25 September 2019, she distributed a video with images of the shooting of a person (hereinafter: video 2) to which other persons had added emoticons of smiling faces and a knife.

The court is faced with the question whether the defendant, whether or not together with (an) other(s), is thereby guilty of an outrage upon personal dignity, in particular humiliating and degrading treatment, as prohibited in the common article 3, first paragraph, preamble and under c, of the Geneva Conventions of 1949. In the Netherlands, this is punishable as a war crime in Article 6, first paragraph, preamble and under c, last sentence, of the ICA.

6.2

Position of the Public Prosecution Service

The Public Prosecution Service has taken the position that the defendant has harmed the human dignity of these men by further distributing the two videos related to the non-international armed conflict in Syria and Iraq from 2014 with the added commentary. These humiliating and degrading behaviours are of such gravity that they must be seen as an outrage upon the personal dignity of the deceased, who deserve protection under international humanitarian law. Thus there is a nexus, a link with the armed conflict, in which the defendant, as a member of IS, felt called to contribute to the electronic jihad by distributing the videos and making propaganda, thereby (further) harming the personal dignity of the deceased. person. No position has been taken on whether or not co-perpetrating this offence.

6.3

Position of the defence

The defence has first of all taken the position that the Public Prosecution Service chose an incorrect basis with Article 6, ICA. The objective of ICA is to prosecute serious crimes, while this is not the case here. The defence has requested that the article be declared inapplicable, or that the defendant be acquitted of the alleged offence.

To the extent that the court does arrive at a substantive assessment and assumes that the videos were shared by the defendant, the defence takes the position that there was no longer an armed conflict, that it cannot be established that the victims are protected by international humanitarian law, nor that the defendant was aware of this protected status. Sharing online videos with a short comment on social media does not result in outrage upon personal

dignity or humiliating and/or degrading treatment of the victims. According to the defence, there is also insufficient nexus between the armed conflict at the time and the sharing of the video at the end of 2019 and there is no question of co-perpetration.

6.4

Assessment of the charges

Preliminary note

In the Dutch criminal justice system, the indictment, drawn up by the public prosecutor, forms the basis for the investigation by the criminal court. The discretionary principle not only means that the public prosecutor determines whether to prosecute, but also the scope of the criminal proceedings by deciding for which behaviour the defendant will be prosecuted and how this behaviour will be charged. The criminal court has been assigned the task of answering the questions laid down in Articles 348 and 350 of the Code of Criminal Procedure on the basis of the indictment. Declaring an article inapplicable, as requested by counsel, has no basis in the aforementioned articles, so the court does not have the power to decide as such. The court will assess the content of the indictment in the following paragraphs.

6.4.1

Legal framework

It has already been established in section 5.4.3 that, contrary to what the defence has argued, there was an armed conflict during the period referred to in the indictment and that international humanitarian law therefore applies. The court will answer the following questions for the purpose of assessing whether the defendant was guilty of the war crime outrage upon personal dignity:

  1. Has the defendant assaulted the victim's personal dignity and/or treated the victim humiliatingly and degradingly?

  2. Is the victim protected by international humanitarian law, in particular by common article 3 GC?

  3. Was the defendant aware of the facts and circumstances underlying the victim's protected status?

  4. Is there a nexus between the alleged conduct of the defendant and the aforementioned armed conflict?

6.4.2

Assessment

Sub 1. Has the defendant assaulted the victim's personal dignity and/or treated the victim in a humiliating and degrading manner?

The court will first assess whether the actions of the defendant are humiliating and degrading, and if so, whether the humiliation and degrading is of such a serious nature that the actions of the defendant constitute an outrage upon the personal dignity. The legal framework is set out in section 5.4.4.

The actions of the defendant were carried out within the context of the media strategy of IS, which - as considered above - is also aimed at propagating the superiority of IS. Part of this is that IS humiliates and dehumanizes its opponents, often in such a way that it can be known worldwide. It has been established that the defendant distributed both videos, which are official publications of IS, in a Telegram group (TG4) of 80 members and added the text

"like roasted chicken" to video 1. The Telegram group is a group of 80 like-minded members who shared on a large scale all kinds of images of sectarian violence by IS in which horrific violence against people of other faiths is glorified and touted. The content of both videos is an excellent example of how IS fighters dehumanize and humiliate captured soldiers.

For video 1, the court considers that the physical and psychological integrity of the imprisoned victims is grossly violated. In this video, IS in this case dehumanizes members of Shiite militias in Iraq by hanging them as animals - still alive - by their hands and feet with chains from a scaffolding, while they are being filmed, and then causing them to suffer a very painful death by burning them alive thus tied and hanging, and by burning to kill them. In the speech that is heard, it is said that their base must be destroyed and that according to Allah they must be punished as they have punished us.

For video 2, the court considers in its judgement that filming shooting a prisoner in the head and then distributing this footage by IS is a seriously humiliating and degrading act. The court also includes the humiliating caption in this footage, namely the words “even if you give me a million, we will not accept you. You are a rafidi”. The court is of the opinion that with this video IS wants to make it clear that the Shiites should be labeled as infidels and therefore should be killed.

The defendant stated at the hearing that the term 'Rafedata' as used in the text is not intended to be offensive but, as the court understands, it is a neutral designation for people from the area between the Euphrates and Tigris rivers. The court disagrees with the defendant's interpretation. After all, in the text accompanying video 1, the term 'Rafedata' is immediately followed by the words 'dirty and filthy dynasty', which words cannot be understood as neutral designations at all.

The defendant's share in Uithoorn on 25 and 26 September 2019 is that she followed the media strategy of IS by further distributing these videos via her Telegram account in the Telegram group to 80 members. She also added comments to video 1. This concerned a Telegram group whose purpose was to distribute extremist jihadist material, which glorified IS, solicited (financial) support for IS and called for the killing of infidels. Thus, a large number of people in this context have been able to take note of the videos and the commentary. By distributing the videos, with or without the commentary, she has shown that she supports the atrocities of IS and the purpose for which these videos were made and their distribution. In this way she also showed that the bodies in video 1 should be seen as a trophy and that, as a participant in IS, she is superior to the deceased. The actions of the defendant contribute to the display of the killing of "infidels" and fit within the media strategy of the organisation. In the opinion of the court, the distribution of the videos in the context of this Telegram group, in which the physical and psychological integrity of the detained persons is grossly violated and which persons are recognizable in the image, is in itself humiliating. and degrading. In addition, video 2 featured – among others - emoticons of smiling faces posted by others, further emphasising the soldier's humiliation. In video 1, the defendant also added the extremely humiliating text “like roasted chicken” to the video.

Taken together, these behaviours by the defendant are of such seriousness that they must be seen as an outrage upon the personal dignity of the deceased persons.

Sub 2. Is the victim a protected person within the meaning of common Article 3 of the Geneva Conventions?

In common Article 3 of the Geneva Conventions, with ‘persons not taking part directly in hostilities’ reference is made to civilians, but also, inter alia, to personnel of armed forces who have laid down their arms and those who have been put hors combat by illness, injury, imprisonment or any other cause.

The people who can be seen in video 1 are dressed in orange overalls, tied up and are hung from a scaffold by IS. This indicates that these persons have been captured and are under the control of IS. Footage from video 2 shows a seated man in camouflage clothing with his hands tied behind his back. According to the subtitle, it is about a captured soldier. The court concludes from this that this person is an imprisoned soldier who is under the control of IS. Contrary to what counsel has argued, it is therefore clear what kind of victims are involved. The court believes that the conduct was committed against persons who no longer directly participated in the hostilities.

Sub 3. Was the defendant aware of the facts and circumstances underlying the victim's protected status?

If it is established that the defendant has taken cognizance of the content of the images in the videos, the court finds that it is also established that the defendant is aware of the protected status of the victims, since it is abundantly clear that the victims in both videos are prisoners of IS. Now that the defendant has downloaded video 2 on her Huawei tablet and she has shared it, with a caption from others, in the aforementioned Telegram group, the court assumes that she was aware of the content of the footage. The court has not found to the contrary. It is also clear from video 1 that she shared it in this Telegram group. Now that she herself has added the text "like roasted chicken", while bodies are being burned in the video, it cannot be otherwise than that the defendant also watched this video and was therefore aware of the content of the images. This leads to the conclusion that the defendant was therefore aware of the protected status of the victims in both videos.

Ad 4. Is there a nexus between the alleged conduct of the defendant and the aforementioned armed conflict?

For a war crime to be proven, there must be sufficient connection, also known as a 'nexus', between the alleged conduct and the armed conflict.

It follows from the case law of the ICTY that the nexus does not require that the conduct took place in the course of the fighting or within the area where the actual combat took place, insofar as the crimes are closely related to the hostilities.150 A causal relationship is not required, but the conflict must have played an essential role in the possibility or decision to commit the crime, the manner in which the crime was committed or the purpose with which the crime was committed.151 Criminal liability for war crimes is not limited to the warring parties and those in close relationship with one of the parties.152

The nexus can be determined, among other things, on the basis of the status of the victim and the perpetrator under the Geneva Conventions and the role they played in the hostilities, whether the crime furthered the (end) goal of a military strategy and/ whether the act(s) was/were committed as part of or in the context of the offender's official duties.153 The perpetrator must be aware of the factual circumstances that led to the armed conflict. It is not required that the defendant has made a legal analysis as to whether there was a (non-) international armed conflict. It must be established whether he or she was aware of the actual circumstances of the armed conflict. In specific terms, the ICC considers that the defendant must be aware of the hostilities between (at least two) entities, that these hostilities have a certain intensity and that the entities are organised.154

The court finds that the defendant, adhering to the ideas of IS, in September 2019 further distributed video images of the burning alive and shooting of victims captured by IS in Iraq in 2014 and 2015, in the Netherlands among 80 members of a Telegram group, whereby she provided one of the videos with humiliating commentary. Contrary to what counsel has stated, displaying prisoners and deceased persons in this way also contributes in September 2019 to a (further) outrage upon the personal dignity of detained persons. In doing so, the defendant has acted in line with the media strategy of IS as a 'media mujahedin.' This represents a nexus between the behaviour of the defendant and the conflict in Syria and Iraq.

The court also considers that the rules of international humanitarian law, which serve to protect persons who do not or no longer participate in the hostilities, also apply at a (great) distance from the armed conflict. After all, it is impossible to see that victims of an armed conflict who enjoy protection under international humanitarian law for serious violations would be protected in the area of ​​the armed conflict itself, but not elsewhere in the world. Certainly not now that the video images of these outrages upon personal dignity by IS were made precisely with the aim of further disseminating these images and thus further humiliating these people. It is also important that - as has already been established above - the armed conflict between IS and other combat groups in Iraq and Syria was still ongoing at the period referred to in the indictment. Victims who died in the context of this armed conflict in 2014 and 2015 therefore still deserve protection under international humanitarian law.

Co-perpetration?

The court – and counsel – cannot establish that the defendant has distributed these videos in close and conscious cooperation with one or more others. The court will therefore acquit her of this part of the charges.

Conclusion war crime ‘outrages upon personal dignity’

On the basis of all of the above, the court considers it legally and convincingly proven that the defendant committed the war crime charged to her in indictment I under count 5.

6.5

Conclusive evidence

With respect to the defendant, the court declares proven that:

She, in the period from 25 September 2019 up to and including 26 September 2019, in the Netherlands, several times,

in the event of a non-international armed conflict on the territory of Iraq and Syria, contrary to the provisions of common article 3 of the Geneva Conventions of 12 August 1949,

committed outrages upon the personal dignity of persons who (then) did not (any longer) participate directly in the hostilities, to know persons who have been horrified by captivity, and treated them in particular in a humiliating and degrading manner,

after all, she, the defendant, visited a Telegram group TG4 under the name GreenB1rds and posted and/or shared a message and two videos in this group, i.e.:

- a video with caption. The video shows how four men in orange overalls, with chains, hang on their hands and feet from a scaffolding and are set on fire with the help of a flammable substance. An IS flag is visible in the background. The caption to the video is an Arabic text that reads (translated): ‘This is torment for the enemies of Allah the Exalted. Spread and share it #burning the_islam_enemies.’

and

- a message accompanying the aforementioned video showing how four men in orange overalls hang from a scaffold with chains by their hands and feet and are set on fire with the help of a flammable substance, reading: ‘Like roasted chicken.’

and

- a video with caption. The video shows a logo of the IS flag. The video shows a seated man dressed in camouflage clothing with the Iraqi flag on his chest. The man is shot in the head, while his hands are behind his back. Meanwhile, "Allahu akbar" is shouted and an Arabic nashid (song) is heard. The caption to the video is in Arabic and contains smiley face emoticons and a knife. The caption states "you are a rafidi" followed by a knife emoticon.

And disseminated and thereby made public this message and these videos.

Insofar as typing and language errors occur in the indictment, these have been corrected in the conclusive evidence. It appears from what was discussed at the hearing that the defendant was not harmed in the defence.

7. Indictment I: Incitement and dissemination for incitement to a terrorist offence and to a war crime (Counts 3 and 4)

7.1

Position of the Public Prosecution Service

The Public Prosecution Service has taken the position that the defendant has distributed and/or stocked for distribution the jihadist writings, images and videos referred to in the indictment via Telegram in various public/private channels and groups. These files have an inflammatory character because, according to the Public Prosecution Service, they encourage participation in the armed jihadi struggle in general and that of IS in particular, and thus to commit terrorist crimes and war crimes. The defendant knew or had serious reason to suspect that the files were incendiary.

7.2

Position of the defence

The defence has taken the position that the defendant should be acquitted of the charges under 3 and 4. The defence has argued that the video showing the prisoners being burned and the images with the caption “O! Muslims” and ‘O! You Crusaders’ are not inflammatory in nature. The image with the caption “Oh! You supporters of the Caliphate outside the land of Khilafa” furthermore contains no incitement to murder or manslaughter with terrorist intent. It has also been argued that the files ended up on her data carriers because she had switched on automatic downloading. Furthermore, the videos or captions do not show that war crimes must be committed, so that this cannot be proven either. Finally, there is no question of co-perpetration, according to the defence.

7.3

Assessment of the charges

7.3.1

Introduction

The court has established above (section 4.5) that the defendant posted messages as administrator or member of various Telegram groups, often under the name Greenb1rds. These Telegram groups - as already considered above - aimed to function as a propaganda tool for IS: in these groups IS was glorified, IS propaganda spread, (financial) support for IS recruited and incited to kill the 'infidels’. Under counts 3 and 4, the defendant is charged with inciting or distributing for the incitement to commit - in short - terrorist offences and war crimes by posting messages containing text messages, images and videos. In the following, the court will discuss the legal framework with regard to incitement and distribution for incitement, followed by a number of comments on the indictment. The court will then assess whether the alleged messages can be regarded as seditious. The court will discuss separately the assessment of the reports regarding incitement and dissemination for incitement to commit terrorist crimes and incitement and dissemination for incitement to commit war crimes. After that, the court will conclude with a number of considerations about all the alleged messages.

7.3.2

Legal framework

Incitement and dissemination for incitement

In Articles 131 and the related 'dissemination offence' 132 of the Criminal Code, incitement to commit any criminal offence or to act violently against public authorities is made punishable. It must be possible to infer from facts and circumstances that it is sufficiently clear that carrying out what is called for would constitute a criminal offence. Incitement can take place in a direct or indirect manner. Incitement is not forcing someone to commit an act, but arousing the thought of some act, trying to establish the opinion that this act is necessary or desirable and arousing the desire to commit that act. It is therefore a question of a representation of desirability or necessity in such a way that it is suitable for arousing the conviction of others. Incitement can take the form of a request or an inducement or be cast in an imperative form. Incitement is already complete when the utterance is made by the incendiarist. It is not required that the incitement has any result, e.g. that the public has become aware of the seditious writing.155Nor is it important that the act for which the incitement is actually committed does take place or that it is reasonably probable that the offence will take place.

Intent is implied in the offensive act 'incites.' The person who incites does not need to know that what he incites to is punishable. The intent, possibly in a conditional sense, must be aimed at all elements of the criminal offence to which the incitement refers. It is also important whether the person making the statements intends to make them 'public'.

What Article 132 of the Criminal Code is about is that the perpetrator wants to make public the content of an incendiary writing or image.156

In Article 132 of the Criminal Code, the verbs used (distribute, openly exhibit, store, stock) mean intent, which also includes conditional intent. The one who distributes the incendiary writings does not need to know exactly what kind of offence is being incited in them. His goal doesn't have to be to incite himself either. What is required is that the person doing this has at least serious reasons to suspect that the writings or images being distributed are incendiary.

Articles 131 and 132 of the Criminal Code require that the incitement takes place in public. In public does not mean that it must take place "in a public place". The utterance of incendiary words must take place under such circumstances and in such a way that they can be heard by the public. By posting statements on social media, they are made public. The Internet can be classified as a public place, provided that the public has access to the Internet page on which the texts are displayed.157

Whether there is an incendiary statement may depend, among other things, on the wording in which the statement was made, the apparent intention of the statement, the context in which the statement was made, the place where and the occasion at which the statement was made and the target group to whom the statement was apparently addressed.

Finally, the “criminal offences” referred to in Articles 131 and 132 of the Criminal Code are criminal offences under Dutch law.

Freedom of speech

Moreover, when assessing the question of whether a statement or a document in a criminal sense should be regarded as incendiary, it must also be assessed against the freedom of expression as protected by Article 10 of the ECHR. After all, this concerns the foundations of the Dutch legal order. Restrictions on this fundamental right are permitted only if (i) it is provided for by law, (ii) serves a legitimate purpose and (iii) is necessary in a democratic society. The court deduces from European case law that “necessary” means: an urgent social need (“pressing social need”), in which the Member States have a certain freedom in assessing that necessity. In this valuation, a balance must be struck between the fundamental importance of freedom of expression (the individual fundamental right) and the fundamental importance of protecting the democratic constitutional state (the general fundamental social interest). An acceptable restriction of this freedom must in any case meet the requirements of proportionality. Against this background, the question to what extent the government is entitled to infringe the fundamental right cannot be answered in a general sense, but the circumstances of the case will have to provide a definitive answer in addition to the literal meaning of the utterance or message.158

7.3.3

Observations regarding the charges

The defendant is accused of inciting and distributing for incitement to a terrorist offence and a war crime. To this end, the Public Prosecution Service has charged the defendant with posting a number of chat messages containing videos, images and text messages and having two videos in stock. For easier discussion of these chat messages and videos, the court has chosen to provide the dashes for these chat messages and videos with a letter or a Roman numeral as follows:

Count 3: Article 131, second paragraph, Criminal Code:

incitement to a terrorist crime

a. video with caption showing four men in orange overalls hanging from a scaffold and being burned alive and/or

b. image of a bloodied hand followed by a text about the shedding of blood of polytheists (mushrikin) followed by 5 images/posters and/or

c. video of a man being shot in the head and/or

d. image of a person with a bloodied hand with text and/or

incitement to a war crime

I. video with caption in which four men in orange overalls are burned alive hanging from a scaffold and/or

II. message with video I saying: 'Like roasted chicken' and/or

III. video of a man being shot in the head and/or

Count 4: Article 132, third paragraph, Criminal Code:

dissemination for incitement to a terrorist crime

a. video with caption showing four men in orange overalls being burned alive and/or

b. image of a bloodied hand followed by a text about the shedding of blood of polytheists (mushrikin) followed by 5 images/posters and/or

c. video of a man being shot in the head and/or

d. image of a person with a bloodied hand with text and/or

e. two videos: handcuffed and blindfolded men on a hill and an explosion and/or

f. video with Arabic caption 'The legends of Islamic State in Mosul’ and/or

g. text message asking where the men are to defend 'this Umma' (The court understands: Ummah) - chat 7 and 11 (investigation 26Cochran) and/or

h. video in which people are beheaded and/or

incitement to a war crime

I. video with caption in which four men in orange overalls are burned alive hanging from a scaffold and/or

II. message with video I saying: 'Like roasted chicken' and/or

III. video of a man being shot in the head

In total, this concerns seven items to be assessed, i.e. six posted text messages/videos and/or images in Telegram groups, with or without captions, and a seventh video that was found on the Huawei of the defendant. The messages in Count 3 under a to d and Count 4 under a to d concern the same messages. This also applies to the messages in Count 3 under I, II, III and Count 4 under I, II and III. Furthermore, three messages and a video (in stock) have only been charged under counts 4 e to h. The videos will be referred to below by letter or Roman numeral. Finally, the court finds that the messages charged under b and d are the same messages; it looks like these posts were mistakenly charged as different items.

7.3.4

Incitement and dissimenation for incitement tocommit terrorist crimes: preliminary considerations

The criminalisation of incitement and dissemination for incitement is provided for by law and serves a legitimate purpose: the prevention of other criminal offences. The Netherlands also has an international obligation to combat terrorism.159 The restriction of freedom of expression is thus provided for by law, it serves a legitimate purpose and is necessary in a democratic society. In other words, Article 10 of the ECHR does not protect those who incite to terrorist offences or distribute inciting documents.

Charges were made of incitement and dissemination to incite to commit (a) terrorist crimes(s) or crimes in preparation for or facilitating a terrorist crime. In the present case, one could think of incitement to participate in IS (by joining the armed struggle), committing attacks (killing the 'infidels') and financially supporting IS.

7.3.5

Are the messages inciting in terms of content to commit terrorist crimes?

The court will now first assess whether the messages can already be regarded as inciting in view of their content. If this is not the case, the court will assess whether they can nevertheless be regarded as inciting in view of the other circumstances and factors as mentioned in the legal framework.

video a

On 26 September 2019 at 00:34:09, the defendant posted a video of 1:58 minutes in her home in Uithoorn in the Telegram group GreenB1rds (TG4), an 80-member group,.

The video images show - as was also considered in Chapter 6 (video 1) above - that four men in orange overalls with chains on their hands and feet hang from a scaffolding and are set on fire with a flammable substance. NesmuMutawahiddeen subsequently posted the comment 'like roasted chicken'. The video also shows an armed and masked man wearing camouflage clothing. Behind this man are four men in orange overalls and behind them four men dressed in black who are armed and masked. The man in camouflage gives a speech that lasts until minute 01:22, after which a song begins. The men in overalls can be seen being burned alive. The caption to the video is translated as follows:

This is torment for the enemies of Allah the Exalted. Spread and share it #burning of the_Islam_enemies." The speech is translated as follows: "It is not strange, because they are the follower[s] of Abin Saba al Yahoudi and grandchildren of Abin Al Alqami, therefore we must destroy their base [interpreter’s note: destroy their foundation]. This caused the Muslim[s] a lot of misery in the time of the Tartars [interpreter's note: Turkish peoples] and they destroyed everything then. Yesterday's Rafedata are today's Rafedata [interpreter's note: a conjugation of the word rawavid, this term is used as an insulting term for Shiites], a dirty and filthy dynasty. They target Muslims: they burned 1 Muslim in the city of Al Garma [a] few days ago and then burned 3 other Muslims in the city of Diyala. Now is the time to punish them, today we are going to attack them as they have attacked our brothers. We are going to punish them as they have punished our brothers. Allah says: “If you are attacked, you attack them in the same way and Allah also says: Punish them with the same punishment that you were punished with. Allah also says: ‘You punish evil with evil’. Allah controls his affairs, but most people do not know it’ [interpreter's comment: source verse 12:21, Surah Yusuf].160

The video was interpreted by a Middle East expert. In the top right corner is a black flag with white text. The text on the flag is the Islamic Creed. The flag looks like the one used by ISIS (court: IS). Later, the flag alternates with the logo of Al-Anbar, the name of a province (wilaya) of IS in Iraq. The province's flag and logo indicate that it is a video released by an official IS media channel. The speech in Arabic addresses the crimes of the rawafid, a term of abuse used by IS for the Shiites. The speaker announces that the four men will be treated as ‘they have treated our brothers’ and punished as they have punished ‘us’. This is supported by the speaker with quotes from the Koran.161

The court believes that by making and distributing this video, in which members of Shiite militias in Iraq, who hang like animals by their hands and feet from a scaffolding, suffer a very painful death by being set on fire, IS wants to boost fear to their opponents that they

will suffer a similar fate if they do not submit to IS. In the speech it is said that their base should be destroyed and that according to Allah they should be punished as they have punished us. This legitimizes the armed jihadi struggle and this form of ruthless violence. The distribution of this video contributes - as previously considered by the court - to display and glorify the power of IS and fits in with the media strategy of the organisation, which aims, among other things, to intimidate enemies or opponents of IS. Like the defence and unlike the Public Prosecution Service, the court is of the opinion that this video with the text 'like roasted chicken' and the Arabic caption cannot in itself be regarded as inciting a terrorist crime. Just the fact that it is about relentless violence and the video mentioning 'we must destroy their foundation' is not enough to encourage others to do the same. Whether this video can nevertheless be regarded as inciting in connection with the context in which and the intention with which this video was placed, the court will discuss below under 7.3.6.

message b (and d)

This message was posted by the defendant on 26 September 2019 in TG5, a group including 56 members on 6 August 2019. The message consists of an image of a bloodied hand, followed by an English message with an attachment. The text deals with the shedding of blood of the polytheists (mushrikin) and states that it is permissible for the believing Muslim to shed this blood. This statement is supported by quotations from the Koran and the traditions from the time of the prophet Muhammad (hadith). This text is followed by five images or posters: images with English text containing, among other things, calls for attacks against the infidels even if you are unable to travel, for example, by using vehicles to hit people.162

The court believes that this message is inciting in its content. It is clear that the message of this message is that the 'infidels' may be killed and that people are called upon to carry out attacks, for example by driving a vehicle into a crowd. By subsequently posting this message to a Telegram group that aimes to distribute (un)official IS propaganda material to recruit supporters for IS for financial support and support for the armed struggle and that also calls for the killing of 'infidels', the defendant incites to commit terrorist crimes.

video c

This video was posted by the defendant on September 25, 2019 at 11:19 PM in TG4 with the name Greenb1rds with 80 members and was also found on the Huawei tablet. The defendant is the administrator of this group.

This video was interpreted by a Middle East expert. The video lasts 00:27 min. At the top right there is a black flag as a logo with the text of the Islamic Creed in white, in the design as used by IS. This logo alternates with the logo of Salahuddin, one of the so-called wilayas (provinces) of IS in Iraq. It can be deduced from the logos that the video is an official publication of IS, published by the media channel of the said province.

The video shows a seated man dressed in camouflage clothing with the Iraqi flag on his chest. The subtitles read that he is a captured soldier of the "Rafida army" [the Shia army], captured by "Al-dawla al-Islamiyya" [the Islamic State]. The man speaks to another, who cannot be seen and who accuses him of apostasy. The man on the ground contradicts this. Towards the end of the video some photos are shown of a soldier in an office of the Iraqi army. Presumably these are photos of the handcuffed man, to demonstrate his function in the army. The image then jumps back to the man on the ground. He can be seen lying on the ground and being shot in the head, with his hands behind his back. Meanwhile, "Allahu Akbar" is shouted. (God is the greatest), and a fragment of an Arabic nashid (song). The caption to the video is in Arabic and contains emoticons of smiley faces and a knife. The caption reads, among other things: “You are a rafidi” [swear word for “Shiite”], followed by an emoticon of a knife.163

What is said on the video has been translated by an interpreter. In the video, there is a conversation between two people, a speaker who is not visible (referred to as NN1) and the man in camouflage clothing (NN2), in a language that the interpreter does not understand. The text on the video has been translated from Arabic into Dutch by the interpreter as follows:

‘NN1: We will not accept you even for billions!

NN2: Why?

NN1: We will not accept you. You are a renegade!

NN2: No, I'm not a renegade! You are going to teach me to pray, to read the Koran and I will join you.

NN1: What do you prefer? A knife or a bullet?

NN2: No, I'm afraid of both!

NN1: No no, you have to choose, because it's one or the other.

NN2: I swear by Allah, it would have been better if you had attached a bomb to me and thrown me’.

Then a number of black and white photos are briefly shown in the video (image 3). While these images are displayed, a song is played. The lyrics of the song can be translated from Arabic to Dutch as follows: ‘The retribution has come. Where are the senior officials? We will come to you with slaughter.’ Then Allahu Akbar is shouted twice and the soldier is shot twice in the head.

The caption of the video is translated as follows: ‘I will join you.’ When a 'Rafidi' is exposed on Telegram, he says: ‘I will join you. This is also how you are with the lions of the Caliphate. Even if you give me a million, we won't accept you. You are a 'rafidi'.164

An investigation has revealed that this video is part of a longer video titled "And Kill Them Wherever You Overtake Them" and that this is one of the executions of a total of 1,700 Shiite cadets from Camp Speicher in Tikrit carried out by IS in the vicinity of Camp in Salahuddin Province, Iraq on 12 June 2014.165

The court is of the opinion that with this videop IS wants to make clear that the Shiites should be labeled as infidels and should therefore be killed; and thereby wants to intimidate other Shiites and instill fear that they will suffer a similar fate. This legitimizes the armed jihadi struggle and this form of ruthless violence. The distribution of this video contributes to the display and glorification of the power of IS and fits in with the media strategy of the organisation, which aims, among other things, to intimidate enemies or opponents of IS by instilling fear. The court, unlike the Public Prosecution Service, is of the opinion that this video cannot be regarded as inciting a terrorist crime in itself, according to its content. The fact that the video contains violence and a caption that says "I will join you" is not enough for that. The court will discuss under 7.3.6 below whether this video can be regarded as inciting in connection with the context in which and the intention with which this video was posted.

videos e

These videos were posted by the Defendant as admin on 25 September 2019 at 23:13 hrs in TG4 with 80 members, called Greenb1rds.

It concerns two videos that appear to be a sequel to each other, with in the top right corner a flag that resembles the design of IS and a logo of Salahuddin, one of the so-called wilayas (provinces) of IS in Iraq. The first video shows the following title and subtitle at 00:32 min: 'The one body 3. Proving the Taliban's lie.' The second video ends with the title and subtitle: 'The one body 3. Attack on the barracks of the rafidi army near the city of Samarra”. The first video opens with images of men on a hill, handcuffed and blindfolded, escorted by armed men. This is followed by images of the handcuffed men sitting on the ground, and an explosion follows where they are sitting. The explosion is shown from different angles, and partly played back in slow motion. Meanwhile, a speech is heard in Arabic. The rest of video 1 and 2 shows a person giving the speech. The speech is about the leadership of the Taliban, among other things. According to the speaker, currently the Taliban leadership has strayed and is unable to truly live by the law of God and impose this law on others. As an example of this, the video talks about the peace talks and other alliances and coalitions the Taliban is making or trying to make with "infidel" countries. According to the speaker, Shiites have been able to infiltrate the high ranks of the Taliban and seize power.166

The court believes that the opponent, in this case the Taliban, is labeled as "infidels" now that they are collaborating with the enemy, "infidel" countries and that Shiites are part of their organisation. Displaying the explosion conveys the message that they may be killed. In the court's opinion, the distribution of these videos contributes to displaying and glorifying the power of IS and fits in with the media strategy of the organisation, which aims, among other things, to intimidate enemies or opponents of IS. Contrary to the Public Prosecution Service, the court is of the opinion that these videos cannot in themselves be regarded as inciting. The court will discuss below under 7.3.6 whether these videos can be regarded as inciting in connection with the context in which and the intention with which these videos were posted.

video f

This video was posted on 27 September 2019 by the defendant in Uithoorn as GB in the Telegram group GreenB1rds with 137 members (TG6). The content of the video has been interpreted by a Middle East expert. The video alternates between the flag of Islamic State in the upper right corner of the screen, and in Arabic calligraphy the name "Ninawa". Ninawa, also known as Ninive, is a province in northwestern Iraq with Mosul as the capital. Under their rule, ISIS referred to the province as Wilayat Ninawa. The video shows a compilation of (drone images of) car bombings. Attacks are shown in various neighbourhoods of Mosul; the names of the neighborhoods appear in the top left of the screen. The video also shows fighters getting into prepared vehicles and the names and photos of martyrs who carried out the attacks. A narrating voice praises the actions of these "martyrs" ("defenders of Islam") and tells of the rewards they will receive in the afterlife. Nasheeds sound in the background (religious chant).167

The court agrees with the Public Prosecution Service that the content of the video is inciting, now that the car bombings are glorified by showing the bombings and the perpetrators by name. By posting this video to a Telegram group whose purpose was to distribute (un)official IS propaganda material in order to gain supporters for IS, the members of that group are then incited by the defendant to commit such attacks, being terrorist acts.

message g

On 21 June 2019 and on 27 June 2019, the defendant posted this text message in chat 7 and chat 11 respectively. Chat 7 had 8 members and Chat 11 had 6 members. The text of the message reads as follows:

“Where are the men who will defend this Ummah [the islamitic community]? Where are the men who will stand up? Are you not afraid of Jahannam [hell]? That day wallahi [I swear on Allah] Allah will ask you what have you done? What is your excuse? When Allah brings forth evidences against you! You saw the Ummah pleading! Why did you not help? When you were able to drive over the kuffar[infidels]or stab them with a knife wallahi [(I swear on Allah] nothing is impossible! Our noble prophet SAAW [peace be with him] spent majority of his life fighting Jihad! Are you following him? you think dua [supplication] is enough when you are healthy young men masha'Allah [what Allah wants] and have a sane mind? Rise up ya shabaab [oh youngsters]! Bring victory to your Deen [religion] Even if you kill one kafir [infidel]! Buy your ticket to Jannah [paradise]!

Bismillah [in the name of Allah]! Trust in the Almighty, rectify what needs to be rectified before you will regret it that Day!

The court is of the opinion that this message invokes the (moral) duty of young men to defend the Muslim community by killing infidels and that the words in the message exert pressure to do so by saying that otherwise they will be called to account by Allah and not go to paradise, but to hell.

The court is of the opinion that the content of this message already incites the killing of infidels and therefore terrorist crimes. The subsequent posting of this message in these Telegram groups that aim to recruit supporters of IS for (financial) support and to call for the killing of 'infidels' means that with this message, the defendant wanted to encourage others to commit terrorist crimes.

video h

This video shows people dressed in black standing behind other kneeling people. They have stabbing weapons or swords in their hands. The persons who are kneeling on the floor are dressed in orange clothing. Their lower bodies appear to be partly in bags. Their faces are not covered. The video opens with a speech by a man in black who uses pious spells and talks about, among other things, the punishment for those who co-operate with the infidels and plot against the believers. The faces of the people of both groups are shown. After this, each person dressed in black can be seen cutting off the head of the person in orange in front of him. This is partly captured in slow-motion and with close-ups. At the end, the bodies of the killed persons are shown.

It appears that this video has only been found on the defendant's Huawei. Whatever the inciting nature of this video, there is no evidence that the defendant possessed it for distribution. When in possession for distribution, it comes down to the intention with which the defendant possesses this video. The circumstances must show that the defendant had the video in order to actually distribute it. The court has not seen proof of this. The fact that the defendant also had other images and videos on the Huawei that she did distribute is an indication that she had videos and images on the Huawei for distribution, but that is insufficient for legal and convincing evidence that the defendant also had this video for distribution. Therefore, the defendant will be acquitted of this part of the indictment.

7.3.6

In view of the context, are the videos a, c and e inciting to commit terrorist crimes?

The court has previously established that videos a, c and e contain extremely violent content, but that they cannot be regarded as inciting by their content. The court is therefore now faced with the question of whether these videos are inciting due to the context in which and the intention with which these videos were shared.

The videos posted are always about violence perpetrated by IS. From the content of the videos, it is clear that there is an IS fight against “infidels.” These videos were posted by the defendant in Telegram groups whose purpose was to distribute IS propaganda material glorifying the use of horrific violence, with the aim of recruiting supporters for IS for financial support and support for the armed struggle, and call were made for the killing of 'infidels'. The court is of the opinion that, in that light, the posting of videos of such a nature in such Telegram groups by the defendant can be regarded as inciting.

In addition, the court finds that in the evening/night of 25 to 26 September 2019, in a period of two and a half hours, in addition to these videos, the defendant posted more than 20 messages, some of which in the opinion of the court are manifestly inciting by their content alone. The court then refers first of all to the text posted by the defendant entitled 'Killing innocent Kuffar?' in which scholars are quoted and in which the message is that it is

permissible to kill 'infidels'. In addition, the court refers to seven messages that the defendant has shared on the issue ‘Why we hate you.’ It is stated that as long as the infidels insult Islam and the prophet Mohammed, ‘you’ can expect counter-reactions with bullets and knives. These messages are clearly inciting by their content. Having regard to the context, namely the posting of the accused videos - with or without captions - in a series of messages, some of which can already be regarded as inciting in content, and the target group for which those videos were intended, the videos can be classified as inciting to commit terrorist offences.

7.3.7

Incitement and dissemination for incitement to commit war crimes

Preliminary considerations

As considered above, the criminalisation of incitement and dissemination for incitement is provided for by law and serves a legitimate purpose, i.e. the prevention of other criminal offences. The restriction of freedom of expression is thus provided for by law, serves a legitimate purpose and is necessary in a democratic society. In other words, Article 10 of the ECHR, as with terrorist crimes, does not protect those who incite to war crimes or distribute writings inciting war crimes..

Video I, caption II and video III

Charges have been made of incitement and dissemination to incite to commit a war crime, i.e. the outrage upon personal dignity. This concerns two videos and one caption, video I with caption II and video III.

To this end, the court has established that these videos cannot in themselves be regarded as inciting a terrorist offence, but because of the context in which the videos were posted, they are regarded by the court as inciting a terrorist offence. The question now before the court is whether these videos, one of which has a caption, can also be regarded as inciting to the war crime outrage upon personal dignity. As previously considered, this war crime concerns the protection of the honor and dignity of anyone who does not (any longer) participate in the armed struggle. As considered in chapter 6, the court is of the opinion that by posting these videos and caption I in a Telegram group, the defendant has violated the personal dignity of the victims in these videos and thus committed a war crime. Now the question is whether by posting these messages the defendant encouraged others to do the same.

The court refers to paragraph 7.3.5 for the content of the videos and the message. The court believes that these videos glorify the conduct of IS, establish the opinion that further distribution of such videos is desirable, and arouse the desire to do so. These videos and the text 'like roasted chicken' can therefore in themselves be regarded as inciting to the war crime: the outrage upon personal dignity. Furthermore, as established, the defendant distributed the videos in a Telegram group. In this Telegram group, extremist jihadist material has also been shared by other members in accordance with the purpose of that Telegram group. By distributing such videos with caption II in this group, those other members have been urged by the defendant to do the same, i.e. further dissemination of these videos and caption, thereby inciting them to commit war crimes.

7.3.8

Final considerations

Public nature

The chat messages discussed above have been shared in Telegram groups with 6 to 137 members. The evidence suggests that a reporting officer (the WUC man) was able to join the Telegram groups without too much difficulty. The court concluded from this that the Telegram groups were in principle accessible to everyone. In addition, the defendant as an administrator, along with other administrators of the Telegram groups, shared the links of their groups with each other. As a member of one Telegram group one also had access to the other Telegram groups. All this means that the requirement of public nature is met.

Intent

The court considered in this judgement that the evidence shows that the defendant as a participant in IS in the Telegram groups behaved as “Media Mujahedin” and acted according to the media strategy of IS by spreading messages to recruite supporters for IS for (financial) support, glorifying IS and calling on them to kill 'infidels'. The intent for incitement and dissemination for incitement is thus given.

Co-perpetration

The court cannot determine - together with legal counsel - that the defendant has performed her actions in close and conscious cooperation with another person or others. The court will therefore acquit her of this part.

Incitement and dissemination

The dissemination of inciting messages and incitement are often an extension of each other. Where the court considers incitement proven, it also declares dissemination proven. This applies to Count 4 under a to d. Count 4 e to g has only been charged as dissemination. It has been established that the defendant has shared those messages in Telegram groups that are pre-eminently intended to share messages with the option of sharing those messages further (also outside that group). The court therefore comes to conclusive evidence of dissemination with regard to Count 4 e to g.

In stock for distribution

With regard to count 3 under c and III and count 4 under c and III, it can also be proved that the defendant had in these for distribution on its Huawei stock, now that it has been legally and convincingly proven that this video was also distributed by the defendant.

Conclusion

The court finds it legally and convincingly proven that the defendant has committed the offences referred to in Count 3, under a, b, c, d, I, II, III and in Count 4 under a, b, c, d, e, f, g, I, II, III in the indictment. The court acquits the defendant of Count 4 under h.

7.4

Conclusive evidence

With regard to the defendant the Court declares proven that:

3.

she, in the period from 1 January 2019 up to and including 10 October 2019 in Uithoorn, at least in the Netherlands, several times,

publicly, in writing and image, has incited any criminal offence or violent act against public authority, while that which was being incited

- constitutes a terrorist crime or a crime in preparation for a terrorist crime,

by co-administrating and following various Telegram groups under the name Greenb1rds and posting messages and images and videos in these groups, being:

[a] - a video showing four men in orange overalls with chains hanging on their hands and feet from a scaffolding and being set on fire with a flammable substance. An IS flag is visible in the background. Two texts have been posted below the video; one in English and one in Arab. The Arabic text reads (translated): This is a torment for the enemies of Allah the Exalted. Spread and share it #burning the_islam_enemies. The English text (below) reads: Like roasted chicken.

and

[b] - an (English) text and a number of images/posters. The text is preceded by an image of a bloodied hand. The text below deals with the shedding of blood of the "polytheists" (mushrikin). The text states that it is permissible for the believing Muslim to shed this blood. The text also talks about the taking of persons hostage in "the lands of infidels". The only language that the infidel (kafir) understands is the language of violence: ‘the language of killing, stabbing and slitting throats, chopping off heads, flattening them under trucks, and burning them alive 'until they give the jizya while they are in a state of humiliation’.’ The text continues with a few more quotes from the Qur'an in which the duty to kill the infidels is mentioned and the bloodshed is justified. The text is followed by five (5) images/posters: images with (English) texts. One of those images/posters (the fourth) with the salutation ‘O you Muwahedeen’, is addressed to IS supporters who are unable to travel. These supporters and "soldiers of the Caliphate" in America, Europe, Russia, Australia, Canada and "all parts of the world" are being called upon to plan and act. These adherents should kill as many infidels as they can. Another image/poster (the fifth) with the salutation "Kill your crusader neighbour", calls on the true monotheist (muwahid) to kill the "crusader neighbor" and his family by hanging them or cutting their throats, and set houses on fire.

and

[c] - a video with a caption. The video shows a logo of the IS flag. The video shows a seated man dressed in camouflage clothing with the Iraqi flag on his chest. The man is shot in the head, while his hands are behind his back. Meanwhile, "Allahu akbar" is shouted and an Arabic nashid (song) is heard. The caption to the video is in Arabic and contains smiley faces and a knife emoticons. The caption states ‘you are a rafidi’ followed by a knife emoticon.

and

[d] – an image of a person with a bloodied hand with the tekst below: ‘Spilling the blood of mushrikien is the greatest form of disavowal’

- this constitutes a war crime i.e.:

outrage upon personal diginity, in particular humiliating and degrading treatment, of persons who (then) did not or no longer participate directly in the hostilities, being persons put hors combat by captivity, in the event of a non-international armed conflict on the territory of Iraq and Syria, contrary to the provisions of common Article 3 of the Geneva Conventions of 12 August 1949,

by co-administrating and following a Telegram group called Greenb1rds and posting the message and videos in this group:

[I] - a video with caption. The video shows four men in orange overalls with chains hanging on their hands and feet from a scaffolding and being set on fire with a flammable substance. An IS flag is visible in the background. The caption to the video is an Arabic text that reads (translated): ‘This is torment for the enemies of Allah the Exalted. Spread and share it #burning the_islam_enemies.’

and

[II] - a message accompanying the aforementioned video showing how four men in orange overalls with chains hanging from hands and feet from a scaffolding and being set on fire with a flammable substance, reading: ‘Like roasted chicken’.

and

[III] - a video with a caption. The video shows a logo of the IS flag. The video shows a seated man dressed in camouflage clothing with the Iraqi flag on his chest. The man is shot in the head, while his hands are behind his back. Meanwhile, ‘Allahu akbar’ is shouted and an Arabic nashid (song) is heard. The caption to the video is in Arabic and contains smiley faces and a knife emoticons. The caption states ‘you are a rafidi’ followed by a knife emoticon.

4.

she, in the period from 1 January 2019 up to and including 10 October 2019 in Uithoorn, at least in the Netherlands, several times, possessed or distributed for dissemination, writings and images, which included incitement for any criminal offence or violent act against public authority, while that which was being incited

- constitutes a terrorist crime or a crime in preparation for a terrorist crime,

While she, the defendant, knew that those writings and images included such incitement,

after all, did she co-administrate and/or follow and visite various Telegram groups, including groups under the name Greenb1rds and in these groups posted and/or shared the following messages and videos:

[a] - a video showing four men in orange overalls with chains hanging on their hands and feet from a scaffolding and being set on fire with a flammable substance. An IS flag is visible in the background. Two texts have been posted below the video; one in English and one in Arab. The Arabic text reads (translated): This is a torment for the enemies of Allah the Exalted. Spread and share it #burning the_islam_enemies. The English text (below) reads: Like roasted chicken.

and

[b] - an (English) text and a number of images/posters. The text is preceded by an image of a bloodied hand. The text below deals with the shedding of blood of the "polytheists" (mushrikin). The text states that it is permissible for the believing Muslim to shed this blood. The text also talks about the taking of persons hostage in "the lands of infidels". The only language that the infidel (kafir) understands is the language of violence: ‘the language of killing, stabbing and slitting throats, chopping off heads, flattening them under trucks, and burning them alive 'until they give the jizya while they are in a state of humiliation’.’ The text continues with a few more quotes from the Qur'an in which the duty to kill the infidels is mentioned and the bloodshed is justified. The text is followed by five (5) images/posters: images with (English) texts. One of those images/posters (the fourth) with the salutation ‘O you Muwahedeen’, is addressed to IS supporters who are unable to travel. These supporters and "soldiers of the Caliphate" in America, Europe, Russia, Australia, Canada and "all parts of the world" are being called upon to plan and act. These adherents should kill as many infidels as they can. Another image/poster (the fifth) with the salutation "Kill your crusader neighbour", calls on the true monotheist (muwahid) to kill the "crusader neighbor" and his family by hanging them or cutting their throats, and set houses on fire.

and

[c] - a video with a caption. The video shows a logo of the IS flag. The video shows a seated man dressed in camouflage clothing with the Iraqi flag on his chest. The man is shot in the head, while his hands are behind his back. Meanwhile, "Allahu akbar" is shouted and an Arabic nashid (song) is heard. The caption to the video is in Arabic and contains smiley faces and a knife emoticons. The caption states ‘you are a rafidi’ followed by a knife emoticon.

and

[d] – an image of a person with a bloodied hand with the tekst below: ‘Spilling the blood of mushrikien is the greatest form of disavowal

[e] - two videos, the first video opens with images of men on a hill, handcuffed and blindfolded, escorted by armed men. This is followed by images of the handcuffed men sitting on the ground, and an explosion follows where they are sitting. The explosion is shown from different angles, and partly played back in slow motion. Meanwhile, a speech is heard in Arabic

and

[f] - a video with the Arabic caption (translated): "The Legends of the Islamic State in Mosul". The video shows an IS flag. The video shows a compilation of (drone images of) car bombings. Attacks are shown in Mosul, then the video shows fighters getting into prepared vehicles and the names and photos of martyrs who carried out the attacks. A narrating voice extols the deeds of these 'martyrs' and tells of the rewards they will receive in the afterlife. Anasheed (religious chanting) is heard in the background)

en

[g] - a message asking where the men are who defend "this Umma" (Islamic community). The text states that one should kill the infidels, for example by running over them or stabbing them with a knife. The message contains a call to the youth to "stand up" to the fight, even if it is just to kill one infidel

- a war crime, being

outrage upon personal diginity, in particular, humiliating and degrading treatment, of persons who (then) no longer took part directly in the hostilities, i.e. persons put hors combat by captivity, in the event of a non-international armed conflict on the territory of Iraq and/or Syria, contrary to the provisions of common Article 3 of the Geneva Conventions of 12 August 1949,

while she, the defendant, knew that these writings and images included such incitement,

after all, she, the defendant, (co-)administrated and followed and visited a Telegram group under the name GreenB1rds and posted a message and videos:

[I] - a video with caption. The video shows four men in orange overalls with chains hanging on their hands and feet from a scaffolding and being set on fire with a flammable substance. An IS flag is visible in the background. The caption to the video is an Arabic text that reads (translated): ‘This is torment for the enemies of Allah the Exalted. Spread and share it #burning the_islam_enemies.’

and

[II] - a message accompanying the aforementioned video showing how four men in orange overalls with chains hanging from hands and feet from a scaffolding and being set on fire with a flammable substance, reading: ‘Like roasted chicken’.

and

[III] - a video with a caption. The video shows a logo of the IS flag. The video shows a seated man dressed in camouflage clothing with the Iraqi flag on his chest. The man is shot in the head, while his hands are behind his back. Meanwhile, ‘Allahu akbar’ is shouted and an Arabic nashid (song) is heard. The caption to the video is in Arabic and contains smiley faces and a knife emoticons. The caption states ‘you are a rafidi’ followed by a knife emoticon

which message and videos may or may not be of an incendiary nature.

Insofar as typing and language errors occur in the indictment, these have been corrected in the conclusive evidence. It appears from what was discussed at the hearing that the defendant was not harmed in the defence.

8 Indictment I: training committing a terrorist crime (Count 2)

8.1

Position of the Public Prosecution Service

The Public Prosecution Service has taken the position that the defendant has internalised the radical extremist ideology of IS and that she, as one of the administrators of the Telegram platform Greenb1rds, together with its permanent co-administrators, is criminally responsible for the files that were shared in these Telegram groups. The administrators had a close and conscious collaboration to fill the Telegram group Greenb1rds with IS propaganda/manuals over and over again. The defendant is a co-perpetrator of the distribution of the manual "Knife Attacks" through which information was provided to the

members or attempted to be provided or others were taught to commit a terrorist crime. The defendant has in any case provided or attempted to provide this information to herself by participating in this Telegram group. Finally, the defendant also had manuals available by downloading them. In view of the context in which the messages were shared, i.e. between messages calling for attacks to be carried out, the Public Prosecution Service concludes that the defendant's intent was aimed at using that information, knowledge and skills to commit a terrorist crime or of a crime that facilitates the commission of a terrorist crime.

8.2

Position of the defence

The defence has taken the position that the defendant should be acquitted of what she is accused of under count 2. The defendant had no intention of training others or acquiring certain techniques. Nor was there any question of co-perpetration.

With regard to part A, the defence argued that the defendant was not radicalised and does not adhere to the ideas of IS.

With regard to part B, according to the defence, it cannot be proven that it was the defendant who shared the message “Take precautions 7”. Now that the file had already been shared by someone else, the question is to what extent sharing a document again constitutes ‘training’. For the mere fact that the defendant did not remove the files from the Telegram group, she cannot be held criminally responsible. In addition, it cannot be proven that the defendant actually read the messages sent by others.

With regard to part C, the defence argues that just visiting websites and social media and downloading files from them cannot lead to the conclusion that one can speak of ‘training for a terrorist offence’.

8.3

Assessment of the charges

8.3.1

Introduction

The defendant is accused of having internalised the radical extremist ideology (count 2 under A), having managed one or more Telegram groups and that in Telegram groups she posted the text entitled 'Take Precautions 7, Traps on the path of Jihad' and a training/manual for carrying out knife attacks (count 2 under B) and searched for, downloaded and had available an instruction for making explosives and a bomb belt (count 2 under C).

The court is faced with the question of whether ‘training for terrorism’ as charged can be proven.

8.3.2

Legal framework

Article 134a Criminal Code makes it a criminal offence to cooperate (as a trainer) and participate (as a trained person) in training courses for terrorism. Participation and

cooperation in training for terrorism are independently punishable preparatory offences.

In the Framework Decision of 13 June 2002 on counter-terrorism, amended on 28 November 2008 (hereinafter: amended Framework Decision), on the basis of the observation that there is an increased threat of a number of terrorist crimes, while in addition to regular training camps, the internet now also functions as a virtual training camp, Member States were called to criminalize, among other things, training for terrorism. Article 134a Criminal Code reads, insofar as relevant, as follows:

A person who intentionally provides himself or another person with the opportunity, means or information to commit a terrorist crime or a crime in preparation for or facilitating a terrorist crime, or who acquires knowledge or skills for this purpose or teaches another person, shall be punished with […].

The term training refers to the conduct referred to in Article 134a Criminal Code and emphatically not to conduct that is not related to (terrorist) training. Training is defined as “acquiring or transferring knowledge or becoming proficient in skills or techniques”.168

Article 134a Criminal Code includes participating in a terrorist training camp where the participants are part of a terrorist organisation or are guilty of conspiracy to commit a terrorist crime. However, the training can also take place via the internet (as a virtual training camp), through individual lessons or in groups.169 This may involve acquiring physical skills or acquiring intellectual knowledge. Furthermore, the training can take place through personal contact as well as by consulting the internet or other “learning materials”. In the latter case, which involves a form of 'self-study', the judgement as to whether one can speak of training will also depend on (1) the factual findings with regard to the type of material consulted, (2) the possible coherence of the material consulted and under which circumstances (3) the frequency of the consultation. The terms “participating in training” and “collaborating in training” have the same scope.170

According to the legislative history, a distinction must be made between the intention of the person who follows training and the person who provides training. For those who provide training, conditional intent may already be sufficient. In practice, this means that the behaviour is punishable as soon as the trainer consciously exposes himself (with/by means of this behaviour) to the considerable chance that his student will follow that training with a view to committing a terrorist crime..171 The criminalisation of a person who follows a training requires that that person has the intention or the malicious intent to acquire that knowledge or skills for the purpose of committing a terrorist offence. It is not only a matter of knowingly gathering information with the aim of committing a terrorist crime, but it is also required that there is a specific aim. It must be demonstrable and proven what crime the defendant had in mind for which he/she acquired the knowledge and skills. Furthermore, this must concern one of the crimes as exhaustively described in Articles 83 and 83b Criminal Code.172

The intention of the person who follows the training can, for example, be deduced from what is known about the background of the person of the defendant, whereby, in addition to the nature and character of the training, the following circumstances may play a role:

 his/her hatred of “infidels” and/or “renegades” in the Western world or elsewhere;

  • -

    his/her fascination with terrorist violence;

  • -

    the radicalisation process that the defendant has undergone.

8.3.3

Assessment

Internalising radical extremist ideas (count 2 under A)

The court has already established under 5.4.5 that the defendant has internalised the radical extremist ideology. In view of the type of material consulted and the frequency of consultation, the defendant's knowledge of information of IS's ideas can be regarded as a self-study. Training for terrorism in the sense of 'acquiring radical extremist ideas' naturally has a starting point, which the court finds started years ago in case of the defendant. As the court has considered, there are strong indications in the file that the defendant traveled with her family to the IS caliphate in Syria/Iraq in 2015 and that her then husband died in the IS caliphate as an IS fighter. The court thus established that the extremist ideas had already been present with the defendant for some time. The subsequent viewing of ever new terror propaganda will have further strengthened the defendant in the extremist ideas already present in her mind and by viewing that propaganda the defendant will have been encouraged in this time and again. After all, in these files and videos, violence against infidels and apostates is glorified and presented as legitimate.173

Viewed in this way, the court considers, unlike the defence, proven that the defendant has further 'acquired' the radical extremist ideology in the period referred to in the indictment.

‘Take precautions 7, Traps on the path of Jihad’ (count 2 under B, first dash)

The court is of the opinion that the message posted by the defendant entitled 'Take precautions, traps on the path of Jihad' can be regarded as training for terrorism, since this post discusses different ways in which a Muslim strives to do good, for example by traveling to and participating in the 'fields of the jihad' or by providing financial support and discussing measures that can be taken so as not to be noticed by intelligence services.

The defendant shared this message in a Telegram group (TG4) with like-minded people that frequently called for attacks and participation in IS in various ways. In the opinion of the court, the defendant thereby knowingly exposed herself to the considerable chance that the members of the Telegram group took cognizance of this information with a view to committing a terrorist offence. The fact that this post had already been shared before does not make this judgement any different.

A training/manual for carrying out knife attacks (count 2 under B, second dash)

The court is of the opinion that the content of the message entitled 'Knife attacks' can be regarded as training for terrorism, now that specific instructions are given, among other things, which knives are suitable for committing an attack.

The next question is whether the defendant has provided this training, whether she is responsible for it or whether she has followed that training. The court established that it was not the defendant, but another person with a Telegram account with ID [user-ID 4]

(hereinafter: ID [user-ID 4]) who posted this message in the Telegram group (TG7). The ID number of this user says 'admin'. The defendant was also an administrator of this Telegram group.

The court finds that there is insufficient legal and convincing evidence that there is a close and conscious collaboration between the defendant and the user of the Telegram account with ID [user-ID 4]. Even if it is assumed that the co-administrators of the different Telegram groups cooperated closely and consciously, this does not mean that they can be held criminally accountable for the content of every message shared by that other, nor for messages shared by third parties in those groups. Furthermore, it does not appear from the file that the user ID [user-ID 4] was part of the admin chat in which links and messages were shared between the members of that chat in question, including the defendant, for further dissemination or that otherwise there was collaboration between the defendant and the user of ID [user-ID 4] before posting this message. Thus, the court is of the opinion - as was also argued by her counsel - that the defendant did not provide this training and that she cannot be held accountable for this shared message.

On the basis of the foregoing, the court further establishes that there is neither sufficient legal and convincing evidence available that the defendant actually took note of the shared message in TG7. From the mere fact that she was the administrator of that Telegram group and previously posted a message in that Telegram group on 30 September 2019 at 15:31 hrs., it cannot be concluded that the defendant also took note of a message that was posted in that group 4,5 hours later.

Since the act referred to under B, second indent, was not performed by the defendant, the defendant cannot be held accountable for it and because it cannot be established that the defendant has taken note of these instructions, the defendant will be acquitted of this part of the indictment.

Instructions for making explosives and a bomb belt (count 2 under C)

The court established that instructions for making explosives, more specifically lead azide (the instructions were taken from 'The jihadist cookbook') and TATP, were found on the Huawei tablet of the defendant. Included in these instructions are accessories, proportions, and instructions for making TATP and lead azide. Instructions for making a bomb belt were also found on the Huawei tablet of the defendant. The court is of the opinion that these instructions can be regarded as training with a view to committing a terrorist crime. Now that the defendant has stated that she has downloaded these instructions and that the instructions have been found on the defendant's Huawei tablet, the court finds that the defendant must have taken note of them.

Conclusion

On the basis of the foregoing, the court establishes – considered in relation and in conjunction to each other – that in the period referred to in the indictment the defendant presented herself as a supporter of a radical Islamic ideology and that she sided with the armed jihad conducted by IS. The findings with regard to what was of concern to the defendant, viewed in conjunction with what the defendant was actually doing, namely gathering knowledge and information through IS-affiliated social media channels or media platforms about the latest IS propaganda material, killing unbelievers, committing attacks,

making explosives (such as lead azide and TATP) and a bomb belt, the court concludes that the defendant is guilty of deliberately (trying to) provide information and acquire knowledge, with the intent to prepare a terrorist offence, as stated below in the conclusive evidence. Furthermore, with regard to the message entitled 'Take precautions, traps on the path of Jihad', the court finds it proven that the defendant trained others.

The statement of the defendant that she was looking for possibilities to murder her husband [defendant’s husband] and that she therefore looked up and downloaded these messages, is considered completely implausible by the court. Although there are indications in the file that there were problems with her husband, there is no evidence of such an extreme plan. In addition, these messages fit seamlessly with her ideas, her participation in IS and the other messages she shared in the various Telegram groups with like-minded people. All this means that the court will set aside this statement of the defendant as implausible.

The court finds it legally and convincingly proven that the defendant committed the offence as charged under count 2.

8.4

Conclusive evidence

With regard to the defendant the court declares proven that:

she, in the period from 1 January 2019 up to and including 10 October 2019 in Uithoorn, at least in the Netherlands, several times,

intentionally provided and attempted to provide herself and/or others information, and acquired knowledge and/or taught others to commit a terrorist offence or a crime in preparation for and to facilitate a terrorist offence, namely

- cause an explosion, while there is a fear of common danger to property and danger of serious bodily injury and danger to life for another, to be committed with a terrorist intent and;

- to commit manslaughter with a terrorist intent and;

- to commit murder with a terrorist intent,

after all, the defendant

A. internalised the radical extremist ideology of the armed jihadi struggle with a terrorist objective, conducted by the terrorist organisation Islamic State (IS) and

B. managed and visited one Telegram group and (subsequently) had and shared in this group one digital file containing directions and instructions about/for (support of) the armed jihadi struggle, which file consisted of an (English) text with the title: "Take Precautions 7, Traps on the path of Jihad" which discusses various possibilities for action, and the associated dangers to the person and

C. downloaded and stored information about (instructions for) making explosives, which files consisted of an (English) instruction for making explosive substances, namely TATP and Lead Azide and an (Arabic) instruction for making and preparing a bomb belt.

Insofar as typing and language errors occur in the indictment, these have been corrected in the conclusive evidence. It appears from what was discussed at the hearing that the defendant was not harmed in the defence.

9. Indictment II: violation of the Sanctions Act 1977 in conjunction with the Sanctieregeling Terrorisme 2007-II (Netherlands Regulation on Sanctions for the Suppression of Terrorism)

9.1

Position of the Public Prosecution Service

The Public Prosecution Service has taken the position that the charges can be legally and convincingly proven, partly in view of the confessional statement of the defendant.

9.2

Position of the defence

The defence has requested that the defendant be acquitted of the charges, because she was not aware that [person involved 3] and [person involved 4] were on the sanction list. In addition, the counsel argued that [person involved 3] and [person involved 4] have been acquitted in Turkey of participating in a terrorist organisation, so that the purpose of the Sanctions Act, namely combating terrorist financing, is not served. The fact that they are still on the sanction list after the acquittal is contrary to the presumption of innocence of Article 6, second paragraph, of the ECHR.

9.3

Assessment of the charges

9.3.1

Introduction

The court is faced with the question of whether it can be legally and convincingly proven that the defendant transferred money to [person involved 3] and [person involved 4] in the period referred to in the indictment in violation of the Sanctions Act 1977 in conjunction with the 2007-II Terrorism Sanctions Regulation.

9.3.2

Legal framework

The Sanctions Act 1977 provides a legal basis for the establishment of national rules for the implementation of international sanctions in order to comply with treaties, decisions or recommendations of bodies of international organisations, or with international agreements, with regard to the maintenance or restoration of international peace and security or the promotion of the international legal order or the fight against terrorism.174

Following the Act of 16 May 2002 amending the Sanctions Act 1977 with a view to implementing international obligations aimed at combating terrorism and extending the supervision of compliance with financial sanctions, Article 2(1) of the Sanctions Act 1977 expressly included the fight against terrorism as an objective that can be achieved with the adoption of measures under an international title.175

Since the signing of the Convention, the United Nations Security Council has adopted several resolutions relating to measures to prevent and obstruct the financing of terrorists and terrorist organisations. The Council of the European Union (hereinafter: the Council) has deemed necessary action by the European Community and later the European Union in this regard. The United Nations Security Council adopted Resolution 1373 (2001) on 28 September 2001, following the 9/11 attacks in the United States. States have a duty to prevent, combat and penalise the financing of terrorist acts for the (in)direct provision or collection of financial resources intended to be used or suspected of being used for the commission of terrorist acts.

The Netherlands has implemented the aforementioned Resolution 1373 (2001) through, among other things, the Terrorism Sanctions Regulation 2007-II.176 On the basis of this Sanctions Regulation, from the moment that a person or organisation has been designated pursuant to the Sanctions Regulation for Terrorism 2007-II by the Minister of Foreign Affairs in agreement with the Ministers of Justice and Finance by means of a decision (Article 2, paragraph 1 ), it is prohibited to provide financial services for or for the benefit of those designated persons and organisations and/or to make resources (including money) available to those designated persons and organisations (Article 2, paragraphs 2 and 3).

On 30 May 2013, Islamic State in Iraq and the Levant (ISIL) was added to the UN Sanction List.177 The United Nations holds IS and Jabhat al-Nusra, both linked to Al Qaeda, accountable for various human rights violations and war crimes. IS, being affiliated with Al-Qaida, is included in Annex I of EC Regulation 881/2002 of the Council of the European Union of 27 May 2002. It is prohibited to make money available to this organisation. It is also prohibited to make money available indirectly, for example to a person who fights for IS. The intentional violation of this provision is punishable under the Sanctions Act.

Violation of the aforementioned Sanctions Regulation is punishable as an economic offence by means of the Sanctions Act 1977 in conjunction with Article 1, preamble and under 1 of the Economic Offences Act. It is settled case law that in the event of a violation of the Economic Offences Act, the doctrine of colourless intent applies. It does not matter whether the ban was known. The intent of the defendant need not be aimed at the unlawful aspect of his or her conduct. The intent must be aimed at the actual conduct. The perpetrator of an economic offence is punishable if he has knowingly acted (or failed to act) as described in the criminal provision.

9.3.3

The evidence

1. the official report of findings dated 14 May 2020, official report number LERCA19019-284, as far as containing the following (p. 1428-1434):

Within the 26 Humble investigation confidential communication was recorded in the home of the defendant [note court: in Uithoorn]. It appears from the recorded and tapped confidential communication that:

- [defendant] on 21 September 2019 said that a sister is married to the same brother. She then mentioned the names [first name person involved 4] and [first name person involved 3]. [defendant] said that [first name person involved 4] is now called [name] and that it was in the newspaper. [defendant] said they are

together with one man. [first name person involved 4] was the first to leave, she is 30 and the other is 24.

- [defendant] spoke to someone on 27 September 2019. [defendant] said that she asked for the number of the Turkish sister, because she wanted to speak to her, so that [defendant] could send money to [first name person involved 4].

- [defendant] listened to a voicemail message from a sister on 2 October 2019, which said that [defendant] would soon be given a name of a person to whom money could be sent as an intermediary.

- on 2 October 2019 [defendant] played a series of voicemail messages between [defendant] and an NN woman. [defendant] explained to the sister how money could be sent: log on to westernunion.nl (...). [defendant] said she ([defendant]) was being watched, so sending money in her name was not an option for [defendant].

On 16 January 2020, I saw that on 29 May 2019, an article called “What did [first name person involved 4] and [first name person involved 3] do in the caliphate” was published in the NRC. This newspaper article shows that the Dutch [first name person involved 3] (24) and the Dutch [first name person involved 4] (29) were standing trial before the Turkish court. “Both women know each other well, they married the same man in Syrian City [city 1]”.

Western Union records show that on 8 October 2019, 300 euros was paid to [person involved 5], whereby this person provided the address [street name 1] No 11 D 1 in [city 2]. Furthermore, it turned out that 2279.57 Turkish Lira was paid to [person involved 6] on 25 September 2019 at a Western Union agency in [city 2].

The IP data provided by ABN AMRO shows that from account [account number 1] (note reporting officer: this refers to account number NL36ABNA0 [account number 1] in the name of [person 3]) on 21 September 2019 and 1 October 2019, funds were transferred to Western Union with the description WU [PERSON INVOLVED 6] TR Western Union” and “WU [PERSON INVOLVED 5] TR Western Union” respectively. For both transactions, user_agent said "[Banking]/[10.45] [HUAWEl]/[CMR-W09] [Android]/(9] [[unique app ID]] "and unique_app_id said "[unique app ID]". The device model "HUAWEI CMR-W09" with uniqueappid "[unique app ID]" was linked to both contracts [account number 1] and [account number 2] (note reporting officer: this means account number NL 19ABNA0 [account number 2] in the name of [defendant ]). Investigation into the digital seizure shows that the unique app id "[unique app ID]", obtained from data supplied by ABN Amro Bank, was found in the data retrieved from the seized Huawei Mediapad M5 (CMR-W09) in an XML file.

On 1 October 2019, [person involved 5] was paid 300 euros, whereby this person had given as address [street 1] No 11 D 1 in [city 2]. The police systems show that on 4 September 2019 it was recorded that the address of [person involved 4] and [person involved 3] [street name 1] was no 6 Kat 3 in [city 2] (same street as [person involved 5]) . On 13 November 2019, it was recorded that the address of [first name person involved 4] was still the same. Western Union data showed that the father of [person involved 3] sent a total of 700 euros

to [person involved 6]. [person involved 6] collected the funds from a Western Union agency in [city 2], the city where [person involved 4] and [person involved 3] are residing.

Information provided by Western Union shows that from the email address [email address] in the name of [person 3], 300 euros were sent to [person involved 5] and 200 euros to [person involved 6];

2. a document, namely a copy of the Government Gazette dated 3 April 2017, containing the Decree of 24 March 2017 designating [person involved 4] as a person to whom the Terrorism Sanctions Regulation 2007-II applies, insofar as containing the following (p. 775):

OFFICIAL GAZETTE 3 April 2017

The Minister of Foreign Affairs,

In view of Article 2, first paragraph, of the Terrorism Sanctions Regulation 2007-II,

Decision:

The Terrorism Sanctions Regulation 2007-II apply to:

- [person involved 4], born on 5 November 1990 in Geleen;

3. a document, namely a copy of the Official Gazette dated 25 October 2017, containing the Decree of 16 October 2017 designating [person involved 3] as a person to whom the Terrorism Sanctions Regulation 2007-II applies, insofar as containing the following (p. 776):

OFFICIAL GAZETTE 25 October 2017

The Minister of Foreign Affairs,

In view of Article 2, first paragraph, of the Terrorism Sanctions Regulation 2007-II,

Decision:

The Terrorism Sanctions Regulation 2007-II apply to:

- [person involved 3], born on 22 June 1995 in Franeker;

4. the statement of the defendant at the hearing on 11 February 2021, insofar as containing the following (as stated on p. 19 of the official record of the hearing):

It is correct that I transferred money to [person involved 4] and [person involved 3]. I transferred that money to intermediaries, because they had no proof of identity themselves. The names [person involved 6] and [person involved 5] are correct. The money was transferred in the months of October and September.

9.3.4

Assessment

On the basis of the evidence mentioned above, the court concludes that on 21 September 2019 and on 1 October 2019, the defendant intentionally transferred the amounts of EUR 200 and EUR 300, through intermediaries, to [person involved 4] and [person involved 3], while the Terrorism Sanctions Regulation 2007-11 applied to them during that period. The court established that the defendant did this from her home in Uithoorn. The charge can thus be proven.

In view of what has been set out under 9.3.2, the fact that the defendant would not have known that [person involved 4] and [person involved 3] were on the sanction list is not relevant for declaring this charge proven.

The court also ignores the defence put forward by the defendant’s counsel that [person involved 3] and [person involved 4] were acquitted in Turkey of participation in a terrorist organisation and therefore should not have been on the sanction list. After all, it is only relevant for a statement of the charges to be proven that these persons were on the sanction list at the time the resources were made available. The court also notes unnecessarily that the media coverage of the acquittal is only dated 26 November 2019, i.e. of a later date than the transactions made by the defendant.

Conclusion

On the basis of the above, the court considers that the charges have been legally and convincingly proven.

9.4

Conclusive evidence

With regard to the defendant the court declares proven that:

she, at times in the period from 1 September 2019 up to and including 10 October 2019 in Uithoorn, acted intentionally in violation of the prohibition of Article 2 of the Terrorism Sanctions Act 2007-II on several occasions by virtue of Articles 2 and 3 of the Sanctions Act 1977, that she provided financial means, being:

- on 21 September 2019 a cash amount of 200 euros and

- on 1 October 2019 a cash amount of 300 euros

through intermediaries to [person involved 4] and [person involved 3], while [person involved 4] by decision of 24 March 2017 and [person involved 3] by decision of 16 October 2017 by the Minister of Foreign Affairs had been designated as persons to whom the Terrorism Sanctions Regulation 2007-11 applies.

10 Criminality of the proven facts

The proven offence is punishable according to the law, because no facts or circumstances have become plausible that exclude the criminality of the facts.

11 Liability for punishment of the defendant

The defendant is punishable because no facts or circumstances have become plausible that exclude her criminal liability.

12 Imposing the sentence and TBS measure

12.1

Demand of the Public Prosecution Service

The Public Prosecution Service demanded that the defendant be sentenced to a term of imprisonment of three years, minus the time spent in pre-trial detention, plus detention under a hospital order (hereinafter referred to as: TBS measure) with compulsory treatment. When determining the prison sentence to be imposed, the Public Prosecution Service has

taken into account the diminished accountability of the defendant and the fact that the defendant must receive treatment within the foreseeable future.

12.2

Position of the defence

The defence has taken the position that, in the event of a possible finding of conclusive evidence, the personal circumstances of the defendant must be taken into account, including the fact that she has not been allowed to see her children for a long time and that she has Multiple Sclerosis (MS) which has not been treated for two years. The detention conditions are not good for the defendant due to the MS.

In addition, the defence counsel stated that it is not possible to impose a TBS measure, because it has not become plausible that the disorder was already present during the period referred to in the charges, nor that it influenced the defendant's actions. According to the counsel, the disorder is also related to MS and therefore not a disorder for which a TBS measure can be imposed. The defence has further argued that the risk of recidivism is not as high as stated by the experts, because the defendant is distancing herself from her ideology.

In the alternative, the defence has requested, if the court deems the imposition of a TBS measure necessary, to impose a compulsory hospital order with conditions. The defendant is willing to cooperate with conditions, according to the counsel.

12.3

Assessment of the court

The punishment and court order to be stated below are in accordance with the seriousness of the offences committed and the circumstances under which they were committed and are based on the person and the personal circumstances of the defendant, as proved to be the case during the investigation at the court hearing. In particular the court takes the following into account.

12.3.1

Seriousness of the offences

The defendant participated in the terrorist organisation IS, which also had the aim of committing war crimes. In addition, the defendant has given and attended various training courses for committing a terrorist offence, has disseminated images and writings for incitement and incited to commit a terrorist offence and a war crime. Furthermore, the defendant herself committed a war crime by sharing two videos in which people were burned alive or executed, partly with adding approving comments. Finally, in violation of the Sanctions Act 1977, she transferred money to two women who were also considered to be members of IS at the time.

It is undisputed that the violence used by IS to achieve its goals is extremely brutal and that serious human rights violations are committed against dissenters, such as summary executions, murder, torture and mutilation of prisoners and civilians. Countless attacks have been carried out in the name of IS, not only in Syria and Iraq, but also in Europe and the rest of the world. This has resulted in many casualties. Since 2014, all this has led to feelings of fear and insecurity on a large scale among the world population. This

is also the secondary goal of IS: to instill fear and division among the - in their eyes – world population of infidels.

The digital dissemination of the ideas and actions of IS is an essential part of IS strategy. The defendant (as administrator) disseminated jihadist extremist ideas and propaganda material in various Telegram groups with like-minded people. This often involved horrific videos, instructions on violence and hate speeches. She also raised money and sought more participants for the violent jihadi struggle. With this she has contributed to the media strategy of IS and to the aim of the organisation, namely to commit terrorist crimes and war crimes, with all the (horrific) consequences that entails.

The crimes committed by the defendant are considered the most serious crimes in the international community. The Netherlands therefore has an international obligation to combat terrorism. Participation in the armed jihadi struggle must therefore be discouraged. This also applies to war crimes. Precisely because it is impossible to prevent casualties in war, it is all the more important that international humanitarian law is complied with and that persons who do not or no longer participate in the battle are protected. It must be terrible for relatives of the deceased that they can be confronted on the Internet with images of their loved ones who are killed in a degrading manner, and that the images thereof may continue to circulate on the Internet for a long time, partly due to the actions of the defendant.

When determining the sentence, the court will take into account the fact that the defendant did not directly use force. On the other hand, it follows from the content of the material she has distributed that she is certainly not afraid of violence. After all, it often concerned extremely violent material in which the commission of violence was glorified, in which certain documents seriously called for violence and attacks as well. Also very worrisome and disturbing is that, in addition to participating in the Telegram groups, the defendant maintained one-on-one contact with individuals involved in and convicted of terrorist offences ([person involved 1] and [person involved 2]) , including preparing for a major suicide bombing in London, where the defendant appears not to have distanced herself from her words in the private chat with [person involved 2], but rather expressed her appreciation for it.

The defendant has shown that he has no insight into the evil nature of her behaviour. She describes IS as just a group of boys who had the right to found an Islamic State. In doing so, she unnecessarily grievously ignores the unprecedented atrocities committed by and in the name of IS and to which she has contributed. The court concludes that this fact weighs to the detriment of the defendant.

12.3.2

The defendant as a person

Criminal record

The court took into account the defendant's criminal record of 15 January 2021, which shows that the defendant had not previously been irrevocably convicted of similar crimes. However, after committing the present offences, she was not irrevocably convicted of similar offences.

Probation Service’s Advice

The court has taken note of the advice regarding the defendant given by the probation service dated 4 February 2021. The probation service concludes in that advice that the defendant at the time of the indictment adhered to an ideology that justifies violence. Furthermore, there was a very worrying social network, because the defendant was in contact with various persons suspected of or convicted of terrorism. She was also married to a man who was convicted in the United Kingdom for terrorism and who, in the meantime, has probably died in Syria or Iraq as an IS fighter. The defendant also has grievances due to alleged injustice done to her by youth care and the government, in which there is a high degree of us-them thinking and in which the defendant sees people of other faiths as enemies and Muslims as superior. All this probably played a role in the charges, according to the probation service. The probation service estimates the general risk of recidivism as medium to high and the risk of extremist violence as high.

In the additional advice of the probation service of 25 March 2021, the probation service concludes with regard to a possible sentence and/or measure to be imposed that the imposition of special conditions and/or the imposition of a behaviour-influencing and freedom-restricting measure are insufficient to mitigate the risks that are still present, so that the probation service only sees possibilities in the context of a measure to be imposed by a TBS order with compulsory treatment.

Ideological Interpretation Report

Furthermore, the court has taken note of the ideological interpretation report of Nuance by Training and Advice (NTA), drawn up in February 2021 by [expert 1] (theologian and researcher), in which the following is concluded.

The defendant was formed by pro-state, political and violent Salafist preachers and clerics. She was also trained in violent Salafist concepts. Her ready knowledge about specific violent Salafist concepts goes beyond superficial insights. She also uses this knowledge in her discussions and judgements. In doing so, she shows that she has internalised the views and beliefs, even though she tries to hide behind the fact that she does not have much knowledge and that it is up to the scholars to explain these concepts.

The defendant rejects democracy by definition because it contradicts the Sharia. Even in detention she regarded Muslims who do recognize and/or participate in the democratic legal order and the Dutch legal system as renegades. This is part of the violent Salafist ideology. Rejecting democracy is part of the Salafist ideology. The defendant also sees an active role for herself when it comes to advising individuals not to participate in democracy through the ballot box. This conceptual framework can also lead to a risk of violence against these persons, whom she sees as renegades.

The defendant's decision not to use violence does not seem to be driven by a deep-seated ideological conviction, but by her personal consideration because she has children and because she does not dare. The consistency of the distinction between legitimising and using violence is therefore fickle in nature and can change at any moment, when she does dare to use it, mostly in a group context. This poses a potential risk of group violence when she is encouraged and her fear is allayed.

The defendant explains the concept of jihad, and its implications for violence, consistently and as is customary within violent Salafism. She supports horrific acts of violence, such as corporal punishment against homosexuals, cutting off heads and the death penalty for apostasy. This mindset of the defendant can lead to a risk of violence. Finally, the defendant shows support for extremist (jihadist) groups, such as ISIS and Al Qaeda, because in her opinion they are waging a legitimate jihad. ISIS is her preference and she prefers it over the rest.

Triple investigation

The court has also taken note of the triple investigation Pro Justitia dated 24 March 2021, drawn up by [expert 2] (psychiatrist), [expert 3] (GZ psychologist) and [expert 4] environmental researcher. The experts state in the report that the investigation had many limitations due to the limited cooperation of the defendant. The experts conclude that the defendant is friendly at first glance, but that she twists and turns and contradicts herself, making her story not very reliable. The report concludes that there is a disinhibited hypomanic state image, in the sense that the defendant has a flood of words, a heightened mood, a heightened self-image and a lack of self-understanding. There are indications for the presence of a personality disorder in the defendant. Furthermore, there are indications of problems of conscience, thrill-seeking behaviour, dominance and an increased degree of fragility. It is unclear to the experts whether the aforementioned characteristics can also or partly be explained by the established psychiatric disorder, whether or not arising from the severe form of MS that was diagnosed in the defendant. At the time of the report there was insufficient insight into the behaviour of the defendant during her life. The experts report that it is not possible to determine sufficiently whether the current picture fits within a pattern or whether it has arisen in recent years. It cannot be ruled out that the defendant has disinhibition as a result of the MS, resulting in an increased degree of impulsivity and coordination problems and disturbances in judgement and criticism. The experts also mention the existence of an incipient bipolar disorder as a possible explanation for the condition, in which the defendant is now in a hypomanic phase, which could be determined by further analysis.

The experts conclude that it has remained unknown whether the currently established psychiatric condition was also present at the time of committing the alleged criminal offences, so that it cannot be established whether the disorder has had an effect on the charged offences. Therefore the experts do not give any advice regarding the accountability of the defendant.

They also conclude that the high degree of impulsivity and disinhibition as a result of the current situation has a negative influence on the already high risk of extremist violent behaviour based on her ideology and ideas. The problems regarding the contact with her children, with her ex-husband and with youth care increase the risk even further, in the opinion of experts. The experts see no indications for the existence of deradicalisation on the part of the defendant.

Finally, the experts conclude that due to the limitations of the investigation, they are unable to provide advice regarding a penalty and/or measure to be imposed. They do believe, however, that long-term clinical treatment is necessary in order to better identify and treat psychiatric problems and any personality disorder and serious neurological problems, and

thus reduce the risk of recidivism. Efforts must also be made to improve the precarious social situation surrounding the children, ex-partner and housing, and the radical ideas present in the defendant must be monitored and processed through religious guidance.

Report behavioural neurologist [expert 5]

The court has also taken note of the report of expert [expert 5] (behavioural neurologist), drawn up on 27 May 2021. Based on MRI comparative examination of skull MRIs from 2016 and 2019 of the defendant and previously performed neuropsychological analysis of the defendant of 2020, who finds there is brain-organic suffering, in particular the disinhibition syndrome. He further concludes that in view of the MRI from 2019, detectable white matter abnormalities in particular in the frontal and in the 'fasciculus uncinatus' (court: the U-shaped track that connects the frontal cortex to the temporal cortex) of the brain, that it is probable that the disinhibition syndrome already existed at the time of the commission of the charged offences. The expert further concludes that, in case the court finds conclusive evidence, it is plausible that the aforementioned syndrome influenced the conduct of the defendant at the time of the charged offences. Due to the brain-organic suffering, the defendant no longer understood the consequences of her actions, so that she was less able to test her actions against an adequate frame of reference of norms and values.

Statements from experts [expert 5], [expert 2] and [expert 3] at the court hearing on 7 June 2021

The experts [expert 5], [expert 2] and [expert 3] made statements at the hearing on 7 June 2021 in response to questions from the court, the Public Prosecution Service and the defence. [expert 5] confirmed his conclusions at the hearing. In view of the aforementioned report of [expert 5] and his explanation at the hearing, which they were able to take note of, [expert 2] and [expert 3] further elaborated on their previously written conclusions and recommendations. They both stated that the disinhibited hypomanic state image which they observed fits within the disinhibition syndrome that [expert 5] describes in his report and that this image concerns a mental disorder. [Expert 3] stated furthermore that based on the findings of [expert 5] it is difficult to imagine a scenario where there was no simultaneity of the disinhibition syndrome and the alleged criminal offences and therefore considers the simultaneity to be very likely. With regard to imputability, [expert 3] said that, although there are complicating factors, he advises that the accountability of the defendant should be reduced if the alleged offences are found to be proven. According to him, it is obvious that there was some effect as a result of the disorder. [Expert 2] stated that he agrees with this. [Expert 2] further stated that now that the defendant has a psychiatric illness on the basis of a neurological disorder with a progressive illness, the risk of recidivism is high, because it is precisely the impulsivity and disturbances in the conscience that are influenced by this condition. [Expert 3] added that the disinhibition of the defendant in combination with her ideas is a disturbing combination.

Furthermore, [expert 2] and [expert 3] stated at the hearing that treatment within a forensic framework is necessary considering the complex problems of the defendant and thus to reduce the risk of recidivism. It is of primary importance that MS treatment is started or continued. In addition, adequate treatment must be initiated for the psychiatric disorder, whereby treatment is necessarily aimed at impulse control, processing, resignation,

acknowledgment and coping with possible traumas. This treatment is separate from the neurological treatment. The experts are of the opinion that only treatment within the framework of a TBS measure with compulsory treatment is sufficient in view of the safety risks and the combination of neurological and psychiatric problems. In their view, a TBS measure with conditions is insufficient in view of this problem.

12.3.3

Disorder and accountability

The court is of the opinion that the conclusions and advice of the psychiatrist, psychologist and behavioural neurologist are based on their findings and the underlying examinations which, in the opinion of the court, have been carefully prepared. The court therefore also bases its judgement on those conclusions. The court concludes that the defendant has the mental disorder as named by the experts. Despite the fact that the experts have not given fully concrete advice regarding the simultaneity of the facts and the disturbance and the imputability, the court concludes from the report of [expert 5] in combination with what [expert 2] and [expert 3] ] declared at the hearing on 7 June 2021, that it is highly probable that the disorder was already present at the time of committing the alleged offences and that it continued to affect it. This means that the court comes to the conclusion that the criminal offences can be attributed to the defendant to a lesser extent.

12.3.4

TBS-measure of compulsory treatment?

The court is of the opinion that the investigation at the hearing and the reports have shown that the safety of others, or the general safety of persons, requires both the hospital order and the compulsory treatment by the state authorities. In the opinion of the court, a TBS measure with conditions provides an insufficient framework to guarantee the necessary treatment for the defendant and to protect society. After all, the risk of recidivism is estimated to be high and, according to the experts, less drastic measures will not be able to sufficiently reduce that risk. In view of the complex problems of the defendant in combination with the extremist jihadist ideas, the security risk is very high. The argument put forward by the defence that the defendant is already distancing herself from her ideas is not apparent from the findings of the experts, nor from what was otherwise discussed at the hearing. The court has not seen any indication that the defendant has an intrinsic motivation to comply with conditions and it is also questionable whether her disorder allows her to be able to do so at all. In addition, the report of the NTA describes that the consistency of the distinction between legitimising and using violence is fickle in the defendant's mind and that this can change at any time, which creates a risk of violence committed within a group. In the opinion of the court, the prevention of recidivism for the defendant can only be adequately realised with sufficient and continuous supervision and intensive treatment.

Moreover, the statutory conditions for the imposition of this measure have also been met. These are crimes for which, according to the legal description, a prison sentence of more than four years may be imposed.

(Un)maximised TBS measure?

As previously considered, the defendant herself did not use force while committing the alleged offences. The question before the court is therefore whether the TBS measure with compulsory treatment is imposed in respect of crimes that are directed against and cause danger to the inviolability of the body of one or more persons within the meaning of Article 38e, first paragraph, Criminal Code. The court answers this question in the affirmative and in this respect considers as follows.

The defendant participated in an evidently violent organisation whose intent was - inter alia - to commit violent terrorist offences and war crimes. She has made an active contribution to these crimes. For example, she distributed very violent documents and incited others to commit (violent) terrorist crimes. In addition, - among other things - she participated in a training course for making a bomb belt using explosives. The defendant has thus gone beyond the mere legitimisation of violence. This is also apparent from the contact described above with [person involved 2] who was preparing a suicide attack on St. Paul's Cathedral in London, whereby in the contact they discussed that they wanted to meet in the afterlife. Moreover there were conversations recorded in her home in which the defendant indicated that she (and her children) wanted to go to 'djenna' (paradise) as soon as possible. In these circumstances, in the opinion of the court, these acts constitute crimes (counts 1, 2, 3 and 4 in indictment I) that are directed against and, at the very least, cause danger to the physical integrity of the human body.

Now that this is the case, a total duration of the TBS measure with compulsory treatment of more than four years cannot be ruled out in advance.

12.3.5

Punishment to be imposed

In addition to the TBS measure, the court will also impose a prison sentence on the defendant. In view of the nature and seriousness of the facts, the court is of the opinion that only the imposition of a long non-suspended prison sentence is appropriate.

To this end, the court first considers that the punishment for committing a war crime as referred to in Article 6(1)(c) of the ICA is a life sentence, or a temporary prison sentence not exceeding thirty years. The court therefore has the option of imposing the highest possible penalty in the Criminal Code, i.e. life imprisonment. Participation in an organisation whose object is to commit terrorist crimes is also subject to a high prison sentence of fifteen years. However, the court did not reach a lifelong or temporary very high unconditional prison sentence, since the defendant herself did not use violence nor, as is often the case with the war crime defined as ‘outrages upon personal dignity’, did she herself make any video material of the victims or posed next to them or with them. Previously, the court in The Hague took a prison sentence of two and a half years as the starting point for the war crime of assaulting the personal dignity of a deceased person.178

In determining the length of the prison sentence, the court also takes into account the defendant's diminished accountability and the fact that the TBS measure with compulsory treatment will be imposed on her. In determining the duration of the prison sentence to be imposed, the court will furthermore take into account that one and the same act is an offence against several different statutory provisions (concurrence of one or several acts), as well as Article 63 Criminal Code. The court also looked at what is usually imposed in similar cases.

Taking all of the foregoing into account, the court is of the opinion that a considerably higher penalty should be imposed than demanded by the Public Prosecution Service, as this does not do sufficient justice to the seriousness of the proven facts. In view of all the foregoing, the court considers a prison sentence for a term of six years, minus pre-trial detention, therefore appropriate and advisable.

13 Seized items

13.1

Position of the Public Prosecution Service

The Public Prosecution Service submitted list of seized items to the court containing the following objects:

  • -

    a weapon (riotgun taser);

  • -

    a weapon (nato tear gas);

  • -

    a computer (Samsung tablet);

  • -

    a telephone (gsm Alcatel);

  • -

    two IS flags;

  • -

    a computer (Huawei tablet);

  • -

    a telephone (GM smartphone);

  • -

    a telephone (One Plus 6 smartphone).

The Public Prosecution Service has taken the position that the seized weapons and IS flags should be removed from circulation, that the two tablets and the smartphones should be confiscated and that the Alcatel mobile phone can be returned to the defendant.

13.2

Position of the defence

The defence has taken the position that the weapons and the IS flags can be confiscated. The defence has requested that other items be returned to the defendant.

13.3

Assessment of the Court

The objects mentioned were found in her home during the investigation into the offences committed by the defendant. For this reason it can be assumed that these objects belong to the defendant.

The weapons

The tear gas (can) and the taser can be used to commit or prepare similar acts, namely acts of violence (whether or not with terrorist intent). These objects are of such a nature that their uncontrolled possession is contrary to the law, after all, having them in possession is punishable under Article 26 of the Weapons and Ammunition Act. On the basis of the above, the court concludes that the weapons must be removed from circulation on the basis of the provisions of Article 36d Criminal Code.

Huawei tablet

The court has established that material was found on the defendant’s Huawei tablet, which material was intended for incitement (count 4). In addition, material was found that served as so-called training for terrorism (count 2). The crimes declared proven under 2 and 4 were thus committed with the aid of this object. The court is of the opinion that this object is of such a nature that the uncontrolled possession of the tablet and the material on it are contrary to the public interest. The court emphasizes that it is highly undesirable for the aforementioned material to end up in circulation again. For that reason, the Huawei tablet will be removed from circulation.

GM smartphone

The defendant stated that she had installed Telegram on the GM Smartphone since January 2019. Therefore, the court finds that the defendant committed the alleged offences with the help of this object.

The police reported that the GM smartphone had been reset to factory settings and that the data had become unreadable. The court is nevertheless of the opinion that this object is of such a nature that its uncontrolled possession is contrary to the public interest, since the court cannot rule out the possibility that the illegible data can be restored and thus re-entered in circulation. For that reason, the court will remove the GM smartphone from circulation.

One Plus 6 smartphone

The court has established that the defendant reset the One Plus smartphone to factory settings just before her arrest. A few minutes before her arrest, the 'GB' account was still active on Telegram, but not anymore after her arrest. Thus, the court finds that the defendant committed the alleged offences with the aid of this object. The same applies to this object as the court has considered above about the GM smartphone. The court will also remove this object from circulation.

IS flags

The two IS flags found in the defendant's home can serve to commit acts similar to those declared proven, because those IS flags can be used for incitement. The possession of these flags symbolizes a certain sympathy for, or membership of, IS, an organisation whose purpose the court has established above is to commit terrorist crimes and war crimes. These objects are therefore of such a nature that their uncontrolled possession is contrary to the public interest. The court will remove these objects from circulation.

Samsung tablet and Alcatel gsm

It cannot be established that the Samsung tablet and Alcatel mobile phone have any connection with the proven facts. Since the interest of criminal proceedings does not preclude this, the court will order the return of these objects to the defendant.

14 Applicable statutory provisions

The punishment and measures to be imposed are based on the following statutory provisions:

- Articles 36b, 36c, 36d, 37a, 37b, 55, 57, 63, 131, 132, 134a, 140 and 140a of the Dutch Criminal Code;

- Article 6 of the International Crimes Act;

- Articles 1, 2 en 6 of the Economic Offences Act;

- Articles 2 and 3 of the Sanctions Act 1977.

These regulations have been applied as they were legally applicable at the time of the proven offences or as legally applicable at the time of this ruling.

15 Decision

The court:

declares legally and convincingly proven that the defendant committed the offences charged under indictment I, under count 1 up to and including 5 and the offence charged under indictment II, as has been declared proven above under 5.5, 6.5, 7.4, 8.4 and 9.4 and that the proven facts constitute the following criminal offences:

with regard to indictment I, count 1 (first and second cumulative), 3 (first and second cumulative), 4 (first and second cumulative) and 5:

concurrence of one act, being

participation in an organisation whose object is to commit terrorist offences;

and

participation in an organisation whose object is to commit war crimes;

and

publicly inciting to any criminal offence by writing and image, while the offence for which the incitement is intended is a terrorist offence or an offence in preparation for a terrorist offence, committed multiple times;

and

publicly inciting to any criminal offence by writing and image, while the offence for which the incitement is intended is a war crime, committed multiple times;

and

disseminating and possessing for dissemination a document and an image which contain incitement to commit any criminal offence, while she knows that the document or image contains such incitement, while the incited offence is a terrorist crime, committed several times;

and

disseminating and possessing for dissemination a document and an image which contain incitement to commit any criminal offence, while she knows that the document or image contains such incitement, while the incited offence is a war crime, committed several times;

and

violation of the common Article 3 of the Geneva Conventions, consisting of outrage upon personal diginity, in particular humiliating and degrading treatment of persons put hors combat by captivity, committed in a non-international armed conflict, committed several times;

regarding indictment I, count 2:

intentionally provide or attempt to provide information to oneself and/or another person and acquire knowledge and/or teach another person to commit a terrorist

crime and/or a crime in preparation for and facilitation of a terrorist crime, committed several times;

regarding indictment II:

intentional violation of a regulation under Article 2 of the Sanctions Act 1977, committed several times;

declares proven what has been proven and the defendant punishable accordingly;

declares not proven what has been charged against the defendant more or differently than has been declared proven above and acquits her thereof;

sentences the defendant to:

a term of imprisonment of 6 (six) years;

establishes that the time spent in custody and pre-trial detention by the convicted person before the execution of this judgement shall be deducted in full in the execution of the prison sentence imposed on her, insofar as that time has not already been deducted from another sentence;

imposes a hospital order on the defendant and orders that she must receive compulsory treatment from the authorities;

declares that the objects numbered on the seizure list under 1, 2, 6, 7, 8, 9, 10 shall be removed from circulation, being:

- a weapon (riotgun taser);

- a weapon (nato tear gas);

- two IS flags;

- a computer (Huawei tablet);

- a telephone (GM smartphone);

- a telephone (OnePlus 6 smartphone);

orders the return to the defendant of the objects numbered under 4 and 5 on the seizure list, being:

- a computer (Samsung tablet);

- a telephone (mobile Alcatel).

This judgement was rendered by:

E.C. Kole, LL M president,

R.E. Perquin, LL M judge,

J. Holleman, LL M judge,

in presence of F. Kok, LL M and R.C. van Grinsven, LL M clerks,

and pronounced at the public hearing of this court on 29 June 2021.

Appendix I: Text of the indictment

1.

She, at one or more time(s) in or around the period from 1 January 2019 up to and including 10 October 2019 in Uithoorn, at least in the Netherlands, together and in association with another or others, at least alone, participated in one or more organisation(s), being Islamic State (IS), or Islamic State of Iraq and al-Sham (ISIS) and/or Islamic State of Iraq and the Levant (ISIL), at least one Jihadist combat group affiliated with the aforementioned organisation(s), at least (an) organisation(s) that support the armed jihadi struggle,

which organisation(s)’ aim it is/was to commit terrorist offences, i.e.:

A. deliberately setting fire and/or causing an explosion, while a common danger to property and/or danger of grievous bodily harm and/or life to another is feared and/or this fact results in someone's death (as referred to in Article 157 Criminal Code), (to be) committed with terrorist intent (as referred to in Article 176a of the Criminal Code) and/or

B. manslaughter (to be) committed with terrorist intent (as referred to in Article 288a of the Criminal Code) and/or

C. manslaughter (to be) committed with terrorist intent (as referred to in Article 289 in conjunction with 83 of the Criminal Code) and/or

D. the conspiracy and/or intentional preparation of and/or promotion of the aforementioned offences (as referred to in Article 176a and/or 289a and/or 96 paragraph 2 of the Criminal Code) and/or

E. the possession of one or more weapons and/or ammunition of categories II and/or III (as referred to in Article 26, paragraph 1 of the Weapons and Ammunition Act) with a terrorist intent and/or with the intent to prepare or facilitate a terrorist offence (as referred to in Article 55 paragraph 1 and/or paragraph 5 of the Weapons and Ammunition Act);

AND

she, at one or more time(s) in or around the period from 1 January 2019 up to and including 10 October 2019 in Uithoorn, at least in the Netherlands, together and in association with another or others, at least alone, participated in one or more organisation(s), being Islamic State (IS), or Islamic State of Iraq and al-Sham (ISIS) and/or Islamic State of Iraq and the Levant (ISIL), at least one Jihadist combat group affiliated with the aforementioned organisation(s), at least (an) organisation(s) that support the armed jihadi struggle, which organisation has/had the intention to commit (war)crimes, i.e.:

A. attacks on life or physical violence, in particular killing in any way whatsoever (as referred to in Article 6 paragraph 1 sub a International Crimes Act) and/or

B. outrage upon personal diginity, in particular humiliating and degrading treatment (as referred to in Article 6, paragraph 1 under c International Crimes Act),

of persons who (then) did not (or no longer) take part directly in the hostilities, namely civilians and/or personnel of armed forces who had laid down their arms and/or persons who were put hors combat by illness and/or wounding and/or imprisonment and /or any other cause,

in case of a non-international armed conflict on the territory of Iraq and/or Syria, contrary to the provisions of common Article 3 of the Geneva Conventions of 12 August 1949;

2.

she, at one or more time(s) in or around the period from 1 January 2019 up to and including 10 October 2019 in Uithoorn, at least in the Netherlands, together and in association with another or others, at least alone, several times, at least once (every time),

Intentionally provided herself and (an)other(s), with the provided opportunity, resources and/or information and/or attempted to provide, and/or acquired knowledge and/or skills and/or (an)other(s) contributed to the commission of a terrorist crime or a crime in preparation for and/or to facilitate a terrorist crime, namely

- intentionally setting fire and/or causing an explosion, while there is a danger to property and/or danger of serious bodily injury and/or danger to life for another and/or this fact results in someone's death (as referred to in Article 157 of the Criminal Code), (to be) committed with a terrorist intent (as referred to in Article 176a of the Criminal Code) and/or;

- manslaughter (to be) commited with terrorist intent (as referred to in Article 288a of the Criminal Code) and/or;

- murder (to be) committed with terrorist intent (as referred to in Article 289 in conjunction with 83 of the Criminal Code),

after all, the defendant and/or her co-defendant(s) several times, at least once (each time),

A. internalised the radical extremist ideology of the armed jihadi combat with a terrorist objective conducted by the (terrorist) organisation Islamic State (IS), or the Islamic State of Iraq and al-Sham (ISIS) and/or the Islamic State of Iraq and the Levant ( ISIL), at least a Jihadist combat group affiliated with the aforementioned organisation(s), or at least (an) organisation(s) that advocates/advances the armed jihadi combat, and/or

B. administrated and/or followed and/or visited one or more Telegram group(s) and (subsequently) downloaded and/or stored and/or had available and/or shared and/or distributed from/in this group(s) one or more (digital) files (such as documents and/or movies and/or images) containing information related to jihadist ideas and/or about

beheadings and/or directions and/or instructions about/for (support and/or encouragement of) the armed jihadi combat, which file(s) consist(ed) of:

- a text (in English) entitled: "Take Precautions 7, Traps on the path of Jihad" that discusses various possibilities for action, and the associated dangers for the person (shared by profile 'GB' on 26 September 2019 in Telegram group GreenB1rds with ID [ID Telegram group 4] (TG4), page 589 and 594) and/or

- a training/manual for performing knife attacks (shared on 30 September 2019 by a co-administrator in Telegram group GreenB1rds ID [ID Telegram group 7] (TG7), page 586) and/or

C. downloaded and/or stored and/or shared and/or distributed and/or had available one or more website(s) and/or social media channel(s); on which one or more (digital) files (such as documents and/or videos and/or images) containing information (are shared) about (instruction(s) for) the making/manufacturing of explosives and/or (subsequently) information about (instruction(s) for) making/manufacturing explosives, which file(s) consisted(s) of:

- an (English) instruction for making explosive substances, being TATP and/or Lead Azide and/or an (Arabic) instruction for making and preparing a bomb belt; (found on the Huawei tablet seized from the defendant, pages 807 and 835 et seq.)

3.

she, at one or more time(s) in or about the period from 1 January 2019 up to and including 10 October 2019 in Uithoorn, at least in the Netherlands, together and in association with another person or others, at least alone, several times, at least once, (every time) publicly, in writing and/or image, incited to any criminal offence or to act violently against public authority while that which is being incited constitutes

- ( a) terrorist crime(s) or (a) crime(s) in connection with preparation or facilitation of a terrorist crime,

by (co) administrating and/or following (different) Telegram groups (each time) under the name Greenb1rds and posting the messages and/or images and/or videos in these groups:

- a video showing four men in orange overalls with chains hanging on their hands and feet from a scaffolding and being set on fire with a flammable substance. An IS flag is visible in the background. Two texts have been posted below the video; one in English and one in Arab. The Arabic text reads (translated): This is a torment for the enemies of Allah the Exalted. Spread and share it #burning the_islam_enemies. The English text (below) reads: Like roasted chicken.

(by profile 'NesmuMutawahiddeen' shared on 26 September 2019 in Telegram group Green81rds witht ID [ID Telegram group 4] (TG4), pages 589/590, 595 and 646), and/or

- an (English) text and a number of images/posters. The text is preceded by an image of a bloodied hand. The text below deals with the shedding of blood of the "polytheists" (mushrikin). The text states that it is permissible for the believing Muslim to shed this blood. The text also talks about the taking of persons hostage in "the lands of infidels". The only language that the infidel (kafir) understands is the language of violence: ‘the language of killing, stabbing and slitting throats, chopping off heads, flattening them under trucks, and burning them alive 'until they give the jizya while they are in a state of humiliation’.’ The text continues with a few more quotes from the Qur'an in which the duty to kill the infidels is mentioned and the bloodshed is justified. The text is followed by five (5) images/posters: images with (English) texts. One of those images/posters (the fourth) with the salutation ‘O you Muwahedeen’, is addressed to IS supporters who are unable to travel. These supporters and "soldiers of the Caliphate" in America, Europe, Russia, Australia, Canada and "all parts of the world" are being called upon to plan and act. These adherents should kill as many infidels as they can. Another image/poster (the fifth) with the salutation "Kill your crusader neighbour", calls on the true monotheist (muwahid) to kill the "crusader neighbor" and his family by hanging them or cutting their throats, and set houses on fire.

(by profile 'NesmuMutawah iddeen' shared on 26 September 2019 in Telegram group Green81rds with ID [ID Telegram group 5] (TG5), pages 596 to 600) , and/or

- a video with a caption. The video shows a logo of the IS flag. The video shows a seated man dressed in camouflage clothing with the Iraqi flag on his chest. The man is shot in the head, while his hands are behind his back. Meanwhile, "Allahu akbar" is shouted and an Arabic nashid (song) is heard. The caption to the video is in Arabic and contains smiley faces and a knife emoticons. The caption states ‘you are a rafidi’ followed by a knife emoticon.

(by profile 'NesmuMutawahiddeen' posted on 25 September 2019 in Telegram group Green81rds with ID [ID Telegram group 4] (TG4) and also found on the Huawei tablet seized from the defendant, pages 607 and 738), and/or

- an image of a person with a bloodied hand with the tekst below: ‘Spilling the blood of mushrikien is the greatest form of disavowal’

(by profile 'NesmuMutawahiddeen' shared on 26 September 2019 in Telgramgroep Greenb1rds with ID [ID Telegram group 5] (TG5), pages 585 and 618/619);

- this/these constitute(s) (a) warcrime(s), i.e.

outrage upon personal diginity, in particular humiliating and degrading treatment (as referred to in Article 6, paragraph 1 under c International Crimes Act), of persons who (then) did not (or no longer) take part directly in the hostilities, namely civilians and/or personnel of armed forces who had laid down their arms and/or persons who were put hors combat by illness and/or wounding and/or imprisonment and /or any other cause,

in case of a non-international armed conflict on the territory of Iraq and/or Syria, contrary to the provisions of common Article 3 of the Geneva Conventions of 12 August 1949,

by (co-)administrating and/or following (different) Telegram groups (each time) under the name Greenb1rds and posting messages and/or images and/or videos in these groups, i.e.:

- a video showing four men in orange overalls with chains hanging on their hands and feet from a scaffolding and being set on fire with a flammable substance. An IS flag is visible in the background. Two texts have been posted below the video; one in English and one in Arab. The Arabic text reads (translated): This is a torment for the enemies of Allah the Exalted. Spread and share it #burning the_islam_enemies. The English text (below) reads: Like roasted chicken.

(by profile 'NesmuMutawahiddeen' shared on 26 September 2019 in Telegram group Green81rds witht ID [ID Telegram group 4] (TG4), pages 589/590, 595 and 646), and/or

- a caption with aforementioned video showing how four men, hanging with chains on their hands and feeet from a scaffolding are set afire with the aid of a flammable substance, reading: Like roasted chicken.

(by profile 'NesmuMutawahiddeen' shared on 26 September 2019 in Telegram group Green81rds wiht ID [ID Telegram group 4] (TG4), pages 589/590, 595 and 646), and/or

- a video with a caption. The video shows a logo of the IS flag. The video shows a seated man dressed in camouflage clothing with the Iraqi flag on his chest. The man is shot in the head, while his hands are behind his back. Meanwhile, "Allahu akbar" is shouted and an Arabic nashid (song) is heard. The caption to the video is in Arabic and contains smiley faces and a knife emoticons. The caption states ‘you are a rafidi’ followed by a knife emoticon.

(by profile 'NesmuMutawahiddeen' posted on 25 September 2019 in Telegram group Green81rds with ID [ID Telegram group 4] (TG4) and also found on the Huawei tablet seized from the defendant, pages 607 and 738));

4.

she, at one or more time(s) in or about the period from 1 January 2019 up to and including 10 October 2019 in Uithoorn, at least in the Netherlands, together and in association with another person or others, at least alone, several times, at least once,

(every time) publicly, in writing and/or image, incited to any criminal offence or to act violently against public authority while that which is being incited constitute(s)

- ( a) terrorist offence(s) or (a) crime(s) in preparation for or facilitation of a terrorist offence,

has distributed and/or possessed for distribution,

while she, the defendant, and/or her co-worker(s) knew(s) or had serious reason(s) to suspect that such incitement occurs in the writing(s) and/or the image(s),

after all, she/they, the defendant and/or her co-perpetrator(s) (co-)administrated and/or followed and/or and/or visited (each time) (different) Telegram groups under the name GreenB1rds and/or posted and/or shared the following messages and/or images and/or videos, at least had these posts and/or images and/or videos in possession:

- a video showing four men in orange overalls with chains hanging on their hands and feet from a scaffolding and being set on fire with a flammable substance. An IS flag is visible in the background. Two texts have been posted below the video; one in English and one in Arab. The Arabic text reads (translated): This is a torment for the enemies of Allah the Exalted. Spread and share it #burning the_islam_enemies. The English text (below) reads: Like roasted chicken.

(by profile 'NesmuMutawahiddeen' shared on 26 September 2019 in Telegram group Green81rds witht ID [ID Telegram group 4] (TG4), pages 589/590, 595 and 646), and/or

- an (English) text and a number of images/posters. The text is preceded by an image of a bloodied hand. The text below deals with the shedding of blood of the "polytheists" (mushrikin). The text states that it is permissible for the believing Muslim to shed this blood. The text also talks about the taking of persons hostage in "the lands of infidels". The only language that the infidel (kafir) understands is the language of violence: ‘the language of killing, stabbing and slitting throats, chopping off heads, flattening them under trucks, and burning them alive 'until they give the jizya while they are in a state of humiliation’.’ The text continues with a few more quotes from the Qur'an in which the duty to kill the infidels is mentioned and the bloodshed is justified. The text is followed by five (5) images/posters: images with (English) texts. One of those images/posters (the fourth) with the salutation ‘O you Muwahedeen’, is addressed to IS supporters who are unable to travel. These supporters and "soldiers of the Caliphate" in America, Europe, Russia, Australia, Canada and "all parts of the world" are being called upon to plan and act. These adherents should kill as many infidels as they can. Another image/poster (the fifth) with the salutation "Kill your crusader neighbor", calls

on the true monotheist (muwahid) to kill the "crusader neighbour" and his family by hanging them or cutting their throats, and set houses on fire.

(by profile 'NesmuMutawahiddeen' shared on 26 September 2019 in Telegram group Green81rds with ID [ID Telegram group 5] (TG5), pages 596 to 600)

and/or

- a video with a caption. The video shows a logo of the IS flag. The video shows a seated man dressed in camouflage clothing with the Iraqi flag on his chest. The man is shot in the head, while his hands are behind his back. Meanwhile, "Allahu akbar" is shouted and an Arabic nashid (song) is heard. The caption to the video is in Arabic and contains smiley faces and a knife emoticons. The caption states ‘you are a rafidi’ followed by a knife emoticon.

(by profile 'NesmuMutawahiddeen' posted on 25 September 2019 in Telegram group Green81rds with ID [ID Telegram group 4] (TG4) and also found on the Huawei tablet seized from the defendant, pages 607 and 738) and/or

- an image of a person with a bloodied hand with the tekst below: ‘Spilling the blood of mushrikien is the greatest form of disavowal’

(by profile 'NesmuMutawahiddeen' shared on 26 September 2019 in Telgramgroep Greenb1rds with ID [ID Telegram group 5] (TG5), pages 585 and 618/619);

- two videos, the first video opens with images of men on a hill, handcuffed and blindfolded, escorted by armed men. This is followed by images of the handcuffed men sitting on the ground, and an explosion follows where they are sitting. The explosion is shown from different angles, and partly played back in slow motion. Meanwhile, a speech is heard in Arabic

(by profile 'NesmuMutawahiddeen ' shared on 25 September 2019 in Te/egramgroep Green81rds with ID [ID Telegram group 4] (TG4), page 606) and/or

- a video with the Arabic caption (translated): "The Legends of the Islamic State in Mosul". The video shows an IS flag. The video shows a compilation of (drone images of) car bombings. Attacks are shown in Mosul, then the video shows fighters getting into prepared vehicles and the names and photos of martyrs who carried out the attacks. A narrating voice extols the deeds of these 'martyrs' and tells of the rewards they will receive in the afterlife. Anasheed (religious chanting) is heard in the background) (by profile 'GB' shared on 27 September 2019 in Telegram group Greenb1rds with ID [ID Telegram group 6] (TG6), page 629) and/or

- a message (in English) asking where the men are who defend "this Umma" (Islamic community). The text states that one should kill the infidels, for example by running over them or stabbing them with a knife. The message contains a call to the youth to "stand up" to the fight, even if it is just to kill one

infidel (by profile 'NesmuMutawahiddeen ' shared on 21 June 2019 in Telegram group with ID [ID chat 7] (Telegram chat 7), en op 27 June 2019 in Telegram group with ID [ID chat 11] (Telegram chat 11), page 525/526 en 497) and/or

- a video in which black-clad persons stand with stabbing weapons or swords in their hands, behind persons kneeling on the ground, in orange clothing. Their lower bodies appear to be partly in bags. Then there is a speech from a man who speaks, among other things, about the punishment for those who cooperate with the disbelievers and conspire against the believers. After that, each person in black can be seen cutting off the head of the person in orange in front of him. This is partly shot in slow-motion and with close-ups

(found on the Huawei tablet seized from the defendant, page 943/944),

- constitute (a) war crime(s), i.e.

outrage upon personal diginity, in particular humiliating and degrading treatment, of persons who (then) did not (any longer) take part directly in the hostilities, i.e. civilians and personnel of armed forces who had laid down their arms and persons who had been put hors combat by illness and/or wounding and/or imprisonment and/or any other cause, in the event of a non-international armed conflict on the territory of Iraq and Syria, contrary to the provisions of common article 3 of the Geneva Conventions of 12 August 1949,

has disseminated and/or had in possession to be disseminated,

while she, the defendant, and/or her co-perpetrator(s) knew, or had serious reason to suspect that this/these writing(s) and image(s) included such incitement,

after all, she, the defendant and/or her co-perpetrator(s), each time, (co-)administrated and/or followed and/or visited (different) Telegram groups under the name GreenB1rds and posted messages and/or videos in these groups:

- a video with caption. The video shows how four men in orange overalls with chains hanging on their hands and feet from a scaffolding and being set on fire with a flammable substance. An IS flag is visible in the background. The caption with the video is an Arab text which reads (translated): This is a torment for the enemies of Allah the Exalted. Spread and share it #burning the_islam_enemies.

(by profile 'NesmuMutawahiddeen' shared on 26 September 2019 in Telegram group Green81rds witht ID [ID Telegram group 4] (TG4), pages 589/590, 595 and 646), and/or

- a caption with aforementioned video which shows how four men in orange overalls with chains hanging on their hands and feet from a scaffolding are set

on fire with a flammable substance, reading: Like roasted chicken.

(by profile 'NesmuMutawahiddeen' shared on 26 September 2019 in Telegram group Green81rds with ID [ID Telegram group 4] (TG4), page 589/590, 595 and 646), and/or

- a video with caption. The video shows a logo of the IS flag. The video shows a seated man dressed in camouflage clothing with the Iraqi flag on his chest. The man is shot in the head, while his hands are behind his back. Meanwhile, "Allahu akbar" is shouted and an Arabic nashid (song) is heard. The caption to the video is in Arabic and contains smiley face emoticons and a knife. The caption states "you are a rafidi" followed by a knife emoticon.

(by profile 'NesmuMutawahiddeen ' posted on 25 September 2019 in Telegram group Green81rds with ID [ID Telegram group 4] (TG4) and also found on the Huawei tablet seized from the defendant, page 607 and 738),

at least expressions of a similar nature and/or purport that are incendiary, whether or not in conjunction with one another;

5.

she, at one or more times in or around the period from 1 June 2014 up to and including 26 September 2019, in or near AI-Anbar (Iraq) and/or Salahuddin (Iraq), at least (elsewhere) in Iraq and/or Syria and/or the Netherlands,

together and in association with (an) other(s), at least alone,

several times, at least once, (each time),

in case of a non-international armed conflict on the territory of Iraq and/or Syria, contrary to the provisions of common Article 3 of the Geneva Conventions of 12 August 1949,

committed an outrage upon the personal diginity of (and/or) (in particular) treated humiliatingly and/or degradingly persons who (then) did not (any longer) participate directly in the hostilities, being civilians and/or personnel of armed forces who had laid down their arms and/or persons put out of action by illness and/or injury and/or imprisonment and/or any other cause,

after all, she, the defendant and/or her co-perpetrator(s) (each time) (co-)administrated and/or followed and/or and/or visited (different) Telegram groups under the name GreenB1rds and/or posted and/or shared messages images and/or videos in these groups:

- a video with caption. The video shows how four men in orange overalls with chains hanging on their hands and feet from a scaffolding and being set on fire with a flammable substance. An IS flag is visible in the background. The caption with the video is an Arab text which reads (translated): This is a torment for the enemies of Allah the Exalted. Spread and share it #burning the_islam_enemies.

(by profile 'NesmuMutawahiddeen' shared on 26 September 2019 in Telegram group Green81rds witht ID [ID Telegram group 4] (TG4), pages 589/590, 595 and 646), and/or

- a message accompanying the aforementioned video showing how four men in orange overalls with chains hanging from hands and feet from a scaffolding and being set on fire with a flammable substance, reading: ‘Like roasted chicken’.

(by profile 'NesmuMutawahiddeen' shared on 26 September 2019 in Telegram group Green81rds with ID [ID Telegram group 4] (TG4) , page 589/590, 595 en 646), and/or

- a video with caption. The video shows a logo of the IS flag. The video shows a seated man dressed in camouflage clothing with the Iraqi flag on his chest. The man is shot in the head, while his hands are behind his back. Meanwhile, "Allahu akbar" is shouted and an Arabic nashid (song) is heard. The caption to the video is in Arabic and contains smiley face emoticons and a knife. The caption states "you are a rafidi" followed by a knife emoticon.

(by profile 'NesmuMutawahiddeen' posted on 25 September 2019 in Telegram group Green81rds with ID [ID Telegram group 4] (TG4) and also found on the Huawei tablet seized from the defendant, page 607 en 738) ,

And by doing so has/have disemminated and made public these messages and/or images and/or videos.

09/748012-19-P

she, (at one or more times) in or around the period from 1 September 2019 up to and including 10 October 2019 in Uithoorn, at least in the Netherlands, and/or Turkey, several times, at least once, (each time) intentionally acted directly or indirectly in violation of the prohibition of Article 2 Terrorism Sanction Regulation 2007-II, established by virtue of Article 2 and/or 3 of the Sanctions Act 1977, by making available:

- on or about 21 September 2019 a cash amount of 200 euros and/or

- on or about 1 October 2019 a sum of 300 euros,

through one or more intermediaries to [person involved 4] and/or [person involved 3], while [person involved 4] by decision of 24 March 2017 and [person involved 3] by decision of 16 October 2017, by the Minister of Foreign Affairs were designated as person(s) to whom the Terrorism Sanction Regulation 2007-11 applies.

Appendix II: End notes

1 When reference is made below to an official report (OR), unless stated otherwise this means a legal official report, drawn up in the legal form by (an) authorized investigating officer(s). Where reference is made to file pages, this concerns the pages of the sequentially numbered official report with number LERCA19019-292, of the National Criminal Investigation Department, International Crimes Team, with appendices.

2 Document, being a knowledge appendix 140a Cc, OR the Islamic State by J. Jolen of 25 June 2018, chapter 1.

3 Document, being a knowledge appendix 140a Cc, OR the Islamic State by J. Jolen of 25 June 2018, chapter 1.

4 Document, being a knowledge appendix 140a Cc, OR the Islamic State by J. Jolen of 25 June 2018, chapter 1.

5 Document, being a Thematic Official Report Syria, the Security Situation, by the Ministry of Foreign Affairs of July 2019.

6 Document, being a knowledge appendix 140a Cc, OR the Islamic State by J. Jolen of 25 June 2018, chapter 1.

7 Document, being a knowledge appendix 140a Cc, OR the Islamic State by J. Jolen of 25 June 2018, chapter 6.

8 Document, being a knowledge appendix 140a Cc, OR the Islamic State by J. Jolen of 25 June 2018, chapter 6.

9 Document, being a knowledge appendix 140a Cc, OR the Islamic State by J. Jolen of 25 June 2018, chapter 6.

10 Document, being a knowledge appendix 140a Cc, OR the Islamic State by J. Jolen of 25 June 2018, chapter 6.

11 Document, being a report from the OHCHR & UNAMI, Report on the Protection of Civilians in the Non-International Armed Conflict in Iraq 5 June-5 July 2014, drawn up on 18 July 2014, p. 21,

12 Document, being a knowledge appendix 140a Cc, OR the Islamic State by J. Jolen of 25 June 2018, chapter 6.

13 Document, being a knowledge appendix 140a Cc, OR the Islamic State by J. Jolen of 25 June 2018, chapter 6.

14 Document, being a VN Rapport van de Human Rights Council Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/27/60, published on 13 August 2014.

15 Document, being a knowledge appendix 140a Cc, OR the Islamic State by J. Jolen of 25 June 2018, chapter 6.

16 Document, being the 8th Report of the Secretary General on the threat posed by ISIL, prepared on 1 February 2019, S/2019/103, p. 1 en 3.

17 Document, being the 9th Report of the Secretary General on the threat posed by ISIL, prepared on 1 February 2019, S/2019/612, p. 2.

18 Document, being an article named ‘ISIS brands global attacks as ‘Vengeance for Sham’ by Robert Postings, published on The Defence Post on 14 April 2019, consulted on https://www.thedefensepost.com/2019/04/14/isis-vengeance-for-sham/; Document, being an article named ‘ISIS steps up attacks on pro-Assad troops in Syria’s Badia desert by Jared Szuba’, published on The Defence Post on 23 April 2019, consulted on https://www.thedefensepost.com/2019/04/23 /syria-isis-badia-desert-liwa-al-quds/.

19 Document, being a Thematic Official Report Syria, Ministry of Foreign Affairs of July 2019, p. 41.

20 Document, being a factsheet by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), published op 9 August 2019, consulted via https://unocha.exposure.co/syria-a-crisis-in-its-9th-year-in-9-figures.

21 Document, being a Thematic Official Report Syria, The Security Situation, by the Ministry of Foreign Affairs of July 2019, page 42.

22 Document, being the 12th Report of the Secretary General regarding the threat posed by ISIL, prepared on 29 January 2021, S/2021/98, p. 1, 2.

23 Document, being a Thematic Official Report Syria, The Security Situation, by the Cluster Official Reports, prepared in July 2019, page 26, 61.

24 Document, being a Thematic Official Report Syria, The Security Situation, by the Cluster Official Reports, prepared in July 2019, page 17.

25 The official report of findings of 21 January 2020, official report no. LERCA19019-254, p. 632-636.

26 Document, knowledge appendix ‘140a Cc OR the Islamic State’ van 25 June 2018, prepared by dr. J. Jolen, chapter 6.9, added separately to the file.

27 The official report of findings of 21 January 2020, official report no. LERCA19019-254, p. 635-639.

28 The official report of findings of 24 January 2020, official report no. LERCA1919-208, p. 462.

29 The official report of findings of 21 January 2020, official report no. LERCA19019-254, p. 635-639.

30 The official report of findings of 21 January 2020, official report no. LERCA19019-254, p. 635-639.

31 The official report of findings of 21 January 2020, official report no. LERCA19019-254, p. 641.

32 Official Report of findings of 24 January 2020, official report no. LERCA19019-235, p. 706-728.

33 Official Report residual information of 17 September 2019, official report no. LERCA19014-115, p. 443-444.

34 Official Report residual information of 17 September 2019, official report no. LERCA19014-115, p. 445.

35 Official Report residual information of 17 September 2019, official report no. LERCA19014-115, p. 446-447.

36 Official Report of findings of 31 January 2020, documentcode 268, p. 729-731.

37 Official Report of findings of 26 May 2020, official report no. LERCA19019-296, p. 1421.

38 Document, being a print of a wiretapped conversation of 24 June 2019 (session no. 4592), p. 1609.

39 Document, being a print of a wiretapped conversation of 24 June 2019 (session no. 4602), p. 1610-1611.

40 Document, being a uitdraai van een tapgesprek van 7 July 2019 (session no. 6965), p. 1612.

41 Document, being a ‘Extraction report Telegram chat between [person involved 1] and [first name defendant]’, p. 1540.

42 Document, being an Extraction report Telegram chat between [person involved 1] and [first name defendant]’, p. 1525.

43 Document, being an Extraction report Telegram chat between [person involved 1] and [first name defendant]’, p. 1550.

44 Document, being an Extraction report Telegram chat between [person involved 1] and [first name defendant]’, p. 1525 and 1528.

45 Official Report of findings of 3 September 2020, official report no. LERCA19019-341, p. 1725.

46 Official Report of findings of 3 September 2020, official report no. LERCA191019-341, p. 1726.

47 Document, being an Extraction report Telegram chat between [person involved 1] and [first name defendant]’, p. 1522-1523.

48 Document, being an Extraction report Telegram chat between [person involved 1] and [first name defendant]’, p. 1522.

49 Document, being an Extraction report Telegram chat between [person involved 1] and [first name defendant]’, p. 1547.

50 Document, being an Extraction report Telegram chat between [person involved 1] and [first name defendant]’, p. 1436.

51 Official Report of findings of 31 March 2020, official report no. LERCA19019-206, p. 807-808.

52 Official Report of residual information of 17 September 2019, official report no. LERCA19014-115, p. 446, and official report of records of 7 April 2020, p. 42.

53 Official Report of findings of 24 January 2020, official report no. LERCA19019-207, p. 449-455, and the appendix p. 459.

54 Official Report of findings of 24 January 2020, official report no. LERCA19109-208, p. 460-464.

55 Official Report of findings of 22 January 2020, official report no. LERCA19019-209, p. 465-472.

56 Official Report of findings of 22 January 2020, official report no. LERCA19019-210, p. 473-480.

57 Official Report of findings of 24 January 2020, official report no. LERCA19019-211, p. 481-484.

58 Official Report of findings of 14 February 2020, official report no. LERCA1910-212, p. 493-506, in conjunction with Official Report of findings of 4 March 2021, official report no. LERCA19019-357 and the official report of findings of 4 March 2021, official report no. LERCA19019-358, which have been added to the file separately.

59 Official Report of findings of 22 January 2020, official report no. LERCA19019-213, p. 507-510.

60 Official Report of findings of 6 February 2020, official report no. LERCA19019-214, p. 511-514.

61 Official Report of findings of 7 February 2020, official report no. LERCA19019-215, p. 515-522.

62 Official Report of findings of 12 February 2020, official report no. LERCA19019-216, p. 523-533.

63 Document, being a CTER OSINT report (with appendices), prepared on 17 September 2019, p. 909 and p. 921, and official report of records, prepared on 7 April 2020, p. 34.

64 Document, being a CTER OSINT report, prepared on 17 September 2019, p. 911.

65 Official Report of findings of 21 January 2020, official report no. LERCA19019-246, p. 602.

66 Official Report of findings of 5 October 2019, official report no. 201910005a-4250, p. 584.

67 Official Report of findings of 21 January 2020, official report no. LERCA19019-246, p. 616-617.

68 Official Report of findings of 17 October 2019, official report no. LERCA19019-136, p. 594-595.

69 Official Report of findings of 21 January 2020, official report no. LERCA19019-246, p. 606.

70 Official Report of findings of 21 January 2020, official report no. LERCA19019-246, p. 607-608.

71 Official Report of findings of 1 April 2020, official report no. LERCA19019-287, p. 731-739.

72 Official Report of findings of 26 May 2020, official report no. LERCA19019-296, p. 1421-1425.

73 Official Report of findings of 21 January 2020, official report no. LERCA19019-246, p. 619.

74 Official Report of findings of 5 October 2019 , official report no. 201910005a-4250, p. 585.

75 Official Report of findings of 21 January 2020, official report no. LERCA19019-246, p. 619-621.

76 Official Report of findings of 21 January 2020, official report no. LERCA19019-246, p. 625.

77 Official Report of findings of 5 October 2019, official report no. 201910005a-4250, p. 586.

78 Report ‘Identification of Telegram group 27-9-2019’ ID [ID Telegram group 6] of 24 October 2019, p. 629.

79 Report ‘Identification of Telegram group 27-9-2019’ ID [ID Telegram group 6] of 24 October 2019, p. 629.

80 Official Report of findings of 21 January 2020, official report no. LERCA19019-246, p. 625.

81 Official Report of findings of 5 October 2019, official report no. 201910005a-4250, p. 586.

82 Official Report of findings of 21 January 2020, official report no. LERCA19019-246, p. 625.

83 Official Report of findings of 21 January 2020, official report no. LERCA19019-246, p. 625-626.

84 Official Report of findings of 21 January 2020, official report no. LERCA19019-246, p. 626.

85 Official Report of findings of 5 October 2019, official report no. 201910005a-4250, p. 586.

86 Official Report of findings of 21 January 2020, official report no. LERCA19019-246, p. 626.

87 Official Report of findings of 5 October 2019, official report no. 201910005a-4250, p. 586.

88 Official Report of findings of 21 January 2020, official report no. LERCA19019-246, p. 626-627.

89 Official Report of findings of 21 January 2020, official report no. LERCA19019-246, p. 627.

90 Official Report of findings of 5 October 2019, official report no. 201910005a-4250, p. 587.

91 Official Report of findings of 21 January 2020, official report no. LERCA19019-254, p. 642.

92 Official report of records van 7 September 2020, p. 1661, in conjunction with Official Report of findings of 6 August 2020, official report no. LERCA19019-327, p. 2047.

93 Official Report of findings of 3 September 2020, official report no. LERCA19019-341, p. 1722 and 1723.

94 Official Report of findings of 3 September 2020, official report no. LERCA19019-341, p. 1730

95 Appendix 8 to Official Report of findings of 3 September 2020, official report no. LERCA19019-341, processing OVC recordings, p. 1780.

96 Appendix 9 to Official Report of findings of 3 September 2020, official report no. LERCA19019-341, screen prints of telephone, p. 1781-1782.

97 Appendices 11 and 12 to Official Report of findings of 3 September 2020, official report no. LERCA19019-341, processing OVC recordings, p. 1784-1785.

98 Official Report of findings of 19 March 2020, official report no. LERCA19019-239, p. 574.

99 Official Report of findings of 3 September 2020, LERCA19019-341, p. 1732-1734.

100 Appendix 20 to Official Report of findings of 3 September 2020, LERCA19019-341, p. 1732-1734, processing OVC recordings, p. 1812

101 Official Report of findings of 3 September 2020, LERCA19019-341, p. 1736.

102 Official Report of findings of 3 September 2020, LERCA19019-341, p. 1738 and 1739.

103 Official Report of findings of 3 September 2020, LERCA19019-341, p. 1740 and 1741 and the corresponding appendix 23, p. 1823.

104 Official Report of findings of 3 September 2020, LERCA19019-341, p. 1743-1745.

105 Official Report of findings of 15 October 2019, official report no. LERCA19019-121, p. 701-702.

106 Official Report of findings of 18 October 2019, official report no. LERCA1909-148, p. 698-701.

107 Official Report of findings of 31 March 2020, official report no. LERCA191019-206, p. 807-828.

108 Official Report of findings of 2 April 2020, official report no. LERCA19019-288, p. 940.

109 Official Report of findings of 2 April 2020, official report no. LERCA19019-288, p. 936-958.

110 Official Report of findings of 31 March 2020, official report no. LERCA19019-205, p. 885-894.

111 Official Report of findings of 23 October 2019, official report no. LERCA19019-157, p. 540-542.

112 Official Report of findings of 23 October 2019, official report no. LERCA19019-157, p. 543.

113 Official Report of findings of 23 October 2019, official report no. LERCA19019-157, p. 544.

114 Official Report of findings of 23 October 2019, official report no. LERCA19019-157, p. 544-545.

115 Official Report of findings of 23 October 2019, official report no. LERCA19019-157, p. 546.

116 Official Report of findings of 23 October 2019, official report no. LERCA19019-157, p. 547-548.

117 Document, a print of an OVC recording of 23 September 2019, p. 2351.

118 Official Report of findings of 23 October 2019, official report no. LERCA19019-157, p. 551.

119 Document, a print of an OVC recording of 5 September 2019, p. 684-685.

120 Document, a print of an OVC recording of 26 September 2019, p. 691.

121 Official Report of findings of 3 December 2019, official report no. 20191010a-4250, p. 648-649.

122 Official Report of findings of 3 September 2020, official report no. LERCA19019-341, p. 1748-1749.

123 Official Report of findings of 1 November 2019, official report no. LERCA19019-181, p. 703.

124 Official Report of examination of defendant of 11 June 2020, official report no. LERCA19019-307, p. 1616-1654, more specifically p. 1624-1630 and 1648.

125 Official Report of examination of defendant of 15 June 2020, official report no. LERCA191019-311, p. 2303-2350, more specifically p. 2315-2316.

126 Official Report of examination of defendant of 15 June 2020, official report no. LERCA191019-311, p. 2303-2350, more specifically p. 2342.

127 Official Report of court records of 11 February 2021, added separately to t he file, p. 10, p. 14.

128 Document, being a knowledge appendix 140a Cc, OR the Islamic State by J. Jolen of 25 June 2018, chapter 6.12.

129 See, among other things, The Hague Court of Appeal 25 May 2018, ECLI:NL:GHDHA:2018:1249 and Rotterdam District Court 29 October 2020, ECLI:NL:RBROT:2020:9659.

130 See Common Article 3 of the Geneva Conventions.

131 ICTY, Prosecutor v. Tadić a/k/a “Dule”, Appeals Chamber Decision, IT-94-1-AR72, 2 October 1995, paragraph 70.

132 ICTY, Prosecutor v. Haradinaj, Trial Chamber Judgement, IT-04-84-T, 3 April 2008, paragraph 49.

133 ICTY, Prosecutor v. Haradinaj et al, Trial Chamber Judgement, IT-04-84-T, 3 April 2008, paragraph 60.

134 ICTY, The Prosecutor v. Dusko Tadić, IT-94-1-AR72, Appeals Chamber, Decision, 2 October 1995, paragraph 67, 70; ICTY, Prosecutor v. Gotovina, Trial Chamber Judgement, IT-06-90-T, 15 April 2011, paragraph 1694.

135 ICTY, Prosecutor v. Gotovina, Trial Chamber Judgement, IT-06-90-T, 15 April 2011, paragraph 1694.

136 Also see: The Hague District Court Nashville, 23 July 2019, ECLI:NL:RBDHA:2019:7430, r.o. 5.3.3.2; The Hague Court of Appeal, Nashville, 26 January 2021, ECLI:NL:GHDHA:2021:103, Chapter VII.

137 Document, being a letter from the Chairman of the UN Security Council, prepared in January 2020, consulted via: https://digitallibrary.un.org/record/3848705; Document, being a rapport from the UN Security Council, consulted via https://undocs.org/S/2020/717; Document, being a Country report United States Department of State, ‘Syria 2019 Human Rights Report’, consulted via https://www.state.gov/wp-content/uploads/2020/03/SYRIA-2019-HUMAN-RIGHTS-REPORT.pdf.

138 ICTY, Prosecutor v. Kunarac, Trial Chamber Judgement, IT-96-23-T and IT-96-23/1-T, 22 February 2001, paragraph 514 and Appeals Chamber Judgement, IT-96-23 and IT-96-23/1, 12 June 2002, paragraph 161 and 163.

139 ICTY, Prosecutor v. Aleksovski, Trial Chamber Judgement, IT-95014/1-T, 25 June 1999, paragraph 56 and Prosecutor v. Kunarac, Trial Chamber Judgement, IT-96-23-T and IT-96-23/1-T, 22 February 2001, paragraph 504 and Appeals Chamber Judgement, IT-96-23 and IT-96-23/1, 12 June 2002, paragraph 162 and 163.

140 ICC Elements of crime, ICRC in: Commentary on the First Geneva Convention, 2016, paragraph 669.

141 ICRC, ‘Article 3: Conflicts not of an international character’, in: Commentary on the First Geneva Convention, 2016, paragraph 669.

142 ICTY, Prosecutor v. Kunarac, Trial Chamber Judgement, IT-96-23-T and IT-96-23/1-T, 22 February 2001, paragraph 501.

143 ICC Elements of Crimes (2002), Article 8(2)(c)(ii).

144 ICTY, Prosecutor v. Kunarac, Trial Chamber Judgement, IT-96-23-T and IT-96-23/1-T, 22 February 2001, paragraphs 164, 165.

145 ICC Elements of Crime, 2011, Article 8(2)(c)(ii) footnote 49.

146 See: European Network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes, Prosecuting war crimes of outrage upon personal dignity based on evidence from open sources – Legal framework and recent developments in the Member State of the European Union, February 2018, in which reference is made to, among other matters, the Higher Regional Court of Frankfurt am Main, 8 November 2016.

147 European Network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes, Prosecuting war crimes of outrage upon personal dignity based on evidence from open sources – Legal framework and recent developments in the Member State of the European Union, February 2018, in which reference is made to, among other matters, the District Court of Pirkanhaa (Finland), Judgement, 18 March 2016, R 16/1304; District Court of Kanta-Häma (Finland), Judgement, 22 March 2016, R 16/214; Higher Regional Court Frankfurt am main (Germany), Judgement, 12 July 2016, case reference 5-3 StE 2/16 - 4 - 1/16.

148 ICC Pre Trial Chamber, Katanga, decision on the confirmation of charges, 30 September 2008, paragraphs 375-376.

149 Dawlathu al islaam is another name for IS.

150 ICTY, Prosecutor v. Tadić a/k/a “Dule”, Appeals Chamber Decision, IT-94-1-AR72, 2 October 1995, paragraph 70.

151 ICTY, Prosecutor v. Kunarac, Appeals Chamber Judgement, IT-96-23 en IT-96-23/1, 12 June 2002, paragraph 57 and 58.

152 ICTR, Prosecutor v. Akayesu, Appeals Chamber Judgement, ICTR 96-4-A, 1 June 2001, paragraph 444.

153 ICC Ntaganda case, Trial Chamber: Judgment (8 July 2019), paragraph 732.

154 ICC Ntaganda case, Trial Chamber: Judgment (8 July 2019), paragraph 733; also see from an earlier date ICTY, Prosecutor v. Kunarac, Appeals Chamber Judgement, IT-96-23 and IT-96-23/1, 12 June 2002, paragraph 59.

155 HR 15 December 2009, ECLI:NL:HR:2009:BJ7237.

156 HR 5 February 1934, NJ 1934.

157 Amsterdam Court of Appeal, 23 November 2009, ECLI:NL:HR:2009:BK4139; HR 15 December 2009, ECLI:NL:HR:2009:BJ7237.

158 The Hague Court of Appeal 30 April 2015, ECLI:NL:GHDHA:2015:1082 (LTTE).

159 United Nations Security Council Resolution 1373 (2001); United Nations Security Council Resolution 2170 (2014); United Nations Security Council Resolution 2178 (2014); EU Framework Decision 2002/475/JHA of 13 June 2002 on Combating Terrorism; EU Framework Decision 2008/919/JHA of 28 November 2008 Amending Framework Decision 2002/475/JHA on Combating Terrorism; the 2005 European Convention for the Prevention of Acts of Terrorism.

160 Official Report of findings of 17 October 2019, official report no. LERCA19019-136, p. 595, Official Report of findings of 17 October 2019, official report no. LERCA19019-120, p. 589-590, and Official Report of findings of 21 January 2020, official report no. LERCA19019-251, p. 646-647.

161 Official Report of findings of 17 October 2019, official report no. LERCA19019-136, p. 595-596.

162 Official Report of findings of 21 January 2020, official report no. LERCA19019-246, p. 620-621.

163 Official Report of findings of 21 January 2020, official report no. LERCA19019-246, p. 607-608.

164 Official Report of findings of 9 March 2021, official report no. LERCA19019-356, p. 2-3.

165 Official Report of findings of 9 March 2021, official report no. LERCA19019-356, added to the file separately.

166 Official Report of findings of 21 January 2020, official report no. LERCA19019-246, p. 606.

167 Official Report of findings of 5 October 2019, official report no. 201910005a-4250, p. 586, en Rapport ‘Duiding Telegram group 27-9-2019 ID [ID Telegram group 6] van 24 October 2019, p. 629.

168 Parliamentary documents II, session year 2008-2009, 31 386, no. 8, Note following the report, p. 4.

169 Framework Decision 2002/475/JBZ of the Council of 13 June 2002 regarding combating terrorism, PbEU L 164 of 22 June 2002, as amended by Framework Decision 2008/919/JBZ of the Council of 28 november 2008, PbEU L 330/21 of 9 December 2008.

170 The Hague Court of Appeal, 27 January 2015, ECLI:NL:GHDHA:2015:119, paragraphs 8.2.2 - 8.2.4; Parliamentary documents II, session year 2007-2008, 31 386, no. 3, Explanatory Memorandum, p. 6.

171 ICC Ntaganda case, Trial Chamber: Judgment (8 July 2019) at paragraph 732.
Actions II, session year 2008-2009, 31 386, no. 43, p. 3795.

172 The Hague Court of Appeal, 27 January 2015, ECLI:NL:GHDHA:2015:119, paragraph 8.2.5; Actions II, session year 2009-2010, 31 386, no. 43, p. 3795; Parliamentary documents II, session year 2008-2009, 31 386, no. 8, Note following the report, p. 8; Parliamentary documents II, session year 2008-2009, 31 386, no. 12, Letter from the Minister of Justice, p. 3-4.

173 See in a similar sense: ECLI:NL:GHDHA:2019:801, ECLI:NL:GHDHA:2018:815, ECLI:NL:SCHE:2020:3371.

174 Act of 15 February 1980, to impose sanctions against certain states or areas, Stb. 1980, 93; Entry into force on 21 April 2980, Stb. 1980, 170. See Article 2. paragraph 1 Sanctions Act 1977.

175 Stb. 2002, 270; entry into force 7 June 2002. See: Parliamentary documents II, 2001-2002, 28251, no. 3, p. 2.

176 Regulation of the Minister of Foreign Affairs in agreement with the Minister of Finance of 18 December 2007, no. DJZ/BR/1222-07, containing measures with a view to the fight against terrorism (Terrorism Sanctions Regulation 2007-II), Official Gazette 2007, 248. Since then, this regulation has been amended two more times: Official Gazette 2009, 63 and Official Gazette 2010, 5507.

177 https://www.un.org/press/en/2013/sc11019.doc.htm.

178 The Hague District Court, 23 July 2019, ECLI:NL:RBDHA:2019:7430.