Dutch Antiterrorism Detention Units Fall Short on Human Rights
By Jonathan Horowitz
Governments have a duty to protect their people from violent terrorism—or, in human rights terms, the duty to protect people’s right to life. Unfortunately, over the past decade, we have repeatedly seen governments across Europe respond to the threat of terrorism by taking steps that undermine the larger human rights system—eroding the shared values that states painstakingly built up since World War II.
This is an unwarranted approach, and it’s not going away. Two UN human rights experts recently criticized France for legislation that injects exceptionally broad counterterrorism powers into its normal criminal justice system. In the United Kingdom, the Independent Reviewer of Terrorism Legislation criticized new legislative proposals that, he said, go too far and risk putting innocent people in jail for viewing online content.
The problem is—as we saw with the EU’s recent countering terrorism directive—it is often easier to pass “tough on terrorism” legislation that expands detention powers or limits free expression than it is to determine if those types of measures will actually work, or are necessary.
Prisons are another place where governments are pushing human rights to the periphery in the name of countering terrorism.
A new report by the Open Society Justice Initiative and Amnesty International looks at the human rights conditions in the Netherlands’ special detention unit (terroristenafdeling, or TA) for people suspected or convicted of terrorist offenses. The report’s findings, which reveal a host of human rights violations, are troubling.
The TA detention unit separates people suspected and convicted of terrorist-related offenses from the general prison population and, once inside, subjects them to harsh security measures. Several former detainees interviewed for the report recounted authorities placing them alone in cells for 19 to 22 hours a day, subjecting them to routine and humiliating full-nudity strip searchers, and placing such severe limitations on their contact with visiting family members that they found it impossible to maintain meaningful relationships with their spouses or children.
While high-security measures might be necessary for certain individuals, what makes the TA such a stain on the Netherlands’ human rights record is that authorities never make an assessment to ensure their placement in the TA and the TA’s routine security measures are necessary or proportionate.
Further, in the TA someone suspected, not even convicted, of an entirely nonviolent crime, like posting something online, could be detained under these conditions. TA detainees, including those who a court never deemed guilty, also have no way to effectively challenging being placed in the TA or the TA’s routine high-security measures.
Using any of the TA’s routine high-security measures without good cause is unacceptable. But this is aggravated if the authorities apply them in combination, producing a cumulative effect of isolation and humiliation, that makes the TA a particularly harsh place for a person to be detained. The conditions can be so harsh that in at least one case prosecutors went so far as to consider not charging a person with a terrorist offense to avoid the detrimental effects of placing a person in the TA.
The TA’s problems don’t end there. Former detainees, as well as law enforcement officials interviewed for the report, said the TA’s blanket high-security measures run at cross-purposes with the goal of protecting public security. This is largely because the TA releases people without providing them with reintegration opportunities that can provide them with skills that are necessary for returning to society upon release. Probation service officials explained that it was “not for nothing” that they normally prepared prisoners to return to society. They pointed out with concern that “the risk of recidivism is much higher without” these reintegration services.
Fortunately, after years of largely ignoring criticism about the TA, the government has finally said it intends a make a few fixes. In its latest response to the European antitorture watchdog, the government told the Committee for the Prevention of Torture [PDF] that it would look for ways to increase reintegration and rehabilitation opportunities. While very late, this is a positive step; it is a clear example of how reforms that are good for human rights are also good for security.
The government is promising other reforms as well, such as making individual risk assessments to determine which TA detainees are “leaders” and which ones are “followers.” If these assessments lead authorities to apply different security measures to different people, this might improve the conditions for some TA detainees, which isn’t a bad thing of course. But this doesn’t relieve authorities from their responsibility to take the time to carefully assess whether the TA’s security measures are necessary and proportionate for each detainee. Authorities also need to be closely monitored for exactly how they make these newly proposed assessments, what criteria they use, and whether they allow detainees to participate in the process and challenge the outcomes.
The new joint report contains recommendations that provide a clear and comprehensive path forward for bringing the TA into compliance with the Netherlands’ human rights obligations. The recommendations will also resonate in states such as France and Belgium, where human rights groups have also criticized those states for their decisions on how and where to detainee people held on terrorism-related offenses.
In these highly politicized times, where governments conflate preventing terrorism with diluting human rights, the report’s most compelling message is that if the Netherlands improves the human rights of the people it detainees in the context of combatting terrorism, it would very likely improve, not sacrifice, the country’s security and safety, and that benefits everyone.
Until January 2019, Jonathan Horowitz was a senior legal officer for the Open Society Justice Initiative.