Three Hague-based organizations, T.M.C. Asser Institute, the Centre for Terrorism and Counterterrorism of the University of Leiden/Campus Den Haag and the Dutch Institute for International Relations ‘Clingendael’, announced to join forces to set up an independent institute that will contribute to the study and policy-making in the field of counter-terrorism. The institute is financed by the Dutch Ministry for Foreign Affairs and will be officially opened in May 2010. It will focus primarily on the prevention and international legal aspects of counter-terrorism.
The initiative is the result of the conclusions and recommendations of the Counter-terrorism Project (the so-called ‘Oud Poelgeest’ process, after the old estate near Leiden), made public on 1 April 2010, by Maxime Verhagen, Dutch Minister of Foreign Affairs. With regard to prevention, there is insufficient insight into the process of radicalisation and into the success and failure of preventative and de-radicalisation policies at the international level. Policy-makers have insufficient access to the available knowledge and expertise. According to Minister Verhagen, the idea behind ‘Oud Poelgeest’ was simple ‘if experts could clarify the complicated legal questions terrorism posed, this would help politicians formulate a coherent and legally sound response to one of the greatest challenges of the new century’.
The Counter-terrorism Project commenced in 2007. The project brought together a number of leading experts from a variety of professional backgrounds, to study the challenges of the combat of international terrorism to international law. Three working groups, each with a different focus, have presented their main findings:
1. Use of force against non-state actors. It is now generally accepted that states have the right to use force in self-defence against armed attacks by non-state actors. Clearly the use of armed force in self-defence should be a last resort, and other methods of prevention need to be considered thoroughly first. But the exact parameters of that force are unclear. When does an attack justify the decision to invoke this right to self-defence? In what circumstances is consent required of the state on whose territory the use of force is taking place? And in what circumstances should a state be allowed to use force in pre-emptive self-defence – that is, to avert a threatened terrorist attack?
2. Applicable law and correlation between human rights and international humanitarian law when the fight against terrorism does take place in a situation of armed conflict. The applicable legislation is generally criminal law, and hence the law enforcement paradigm should apply. The majority of terrorist attacks happen outside armed conflicts and consequently questions of international humanitarian law do not arise. However, there can be no circumstances which excuse human rights violations, even in the fight against terrorism, although there may be special laws dealing with terrorist acts.
3. Improving mutual legal assistance. There should be better use of existing legal tools and cooperation mechanisms, including regional ones, to optimise criminal justice responses to terrorism. Enhancing cooperation and joint investigation might provide states with more solid evidence, making regular prosecution easier.
4. The UN sanctions regime, under which individuals and organisations that pose a threat may be ‘listed’ or ‘delisted’. The latest resolution adopted by the UN Security Council can be seen as an important step forward, particularly in light of the provision that an Ombudsman will review requests for delisting.
Further research on the results and recommendations of the 'Oud Poelgeest process', will be initiated and followed up in this new institute. The new institute will develop expertise that will be shared with (inter)national stakeholders such as academics, policy-makers and other professionals. It also will provide for an international knowledge hub. Cooperation will be sought with other existing knowledge institutions at home and abroad, for example, in Singapore, Egypt, and the United States. Minister Verhagen ‘We must continue our efforts, so that terrorists, who think they can spread fear are stopped in their tracks. Whether they strike in New York, London, Madrid, Bali, Mumbai or Moscow, we must let them know that they will not get away with it.’