“Would you like some nice ISIS fighters?”, US president Donald Trump asked French president Emmanuel Macron on the sidelines of the NATO leaders meeting in London this month. “I can give them to you”. Macron didn´t think it was funny. “Come on, let’s be serious”, he replied. The awkward exchange between the two leaders was emblematic of the wider question at hand; should countries take back their foreign terrorist fighters? And if so, what would that mean for their national security? Much like other European countries, the Netherlands has been struggling with this very question since the so-called caliphate has crumbled.
On November 11, 2019 a court in The Hague ruled that the Netherlands must actively help repatriate the children of women who joined Islamic State (IS), and who are currently being held in prison camps in Syria. Lawyers for 23 women who joined IS had previously argued for the court to force (obligation of result) the state to repatriate them and their 56 children. However, the final ruling stopped short of such an obligation and instead compelled the state to merely do everything within reasonable limits to repatriate the children (obligation of effort).
The state immediately announced that it would appeal the ruling. It argued that the court had failed to take into account national security interests and diplomatic considerations. On November 22, the Court of Appeal overturned the previous decision and ruled that the state was in fact not legally required to assist in the repatriation of the children.
After the initial ruling, the (social) media were awash with outcries of both horror and joy. The subject of repatriation and prosecution of foreign fighters proved to be an incredibly divisive issue. Complex questions arose. Is the state responsible for its own war criminals? Does the state have the duty of care in these cases? Do foreign fighters still have a right to citizenship? Increasingly, the legal debate has been muddled by moral considerations and cries for modification of the legal framework in order to deal with the issues at hand. The legal disagreements as well as the moral contention and emotional outcry surrounding the issue illustrate the complexity of the problem of returning foreign fighters.
The leading consideration with regard to the question of repatriation is the potential threat that returning foreign fighters might pose to national security, which strongly divides expert opinion.
On the one hand of the spectrum, there are those that argue that it is safer to have the fighters prosecuted and in prison, so that they can be monitored and possibly deradicalised. This line of argument proposes that leaving violent extremists to roam the Middle East and beyond ultimately poses the bigger threat, since there is no way of controlling or monitoring them.
Opponents of this theory claim that in view of the training and experience these fighters have gained while in Syria, it is in fact a bigger threat to have them within our own borders. They argue that the Dutch justice system is not equipped for this new type of criminals and the complexity of their offences. This inadequacy means that - if convicted - these fighters would serve sentences with an average of six years, after which they would be released into society. Indeed, recent sentences passed in “terrorism trials” are mild compared to those passed in other European countries. These lower sentences are a direct result of the legal quagmire that these trials present.
One of the biggest prosecutorial headaches in these cases is the burden of proof. Evidentiary challenges mean that in many cases the public prosecution service can only prove that individuals were present in enemy territory, not that they were members of a terrorist organisation, or have actively participated in violent crimes. Only if there is evidence of membership of a terrorist organisation, or evidence of war crimes can additional charges be brought, and higher sentences be passed.
A second complicating factor is the legal base for convictions and the absence of any specific legal framework for terrorist crimes. While regular criminal law provisions might be sufficient to secure a conviction in some cases, punishments may be light, not reflecting the full severity of the case. However, while the Dutch system relies on its ordinary criminal code, it does provide for the added charge of “terrorist intent”, which enables prosecutors to add legal “weight” to the crime, without having to prove a completely separate offence.
Beyond the legal complexities of prosecution, the question what to do with foreign fighters has put some of our core values up for debate. While the Netherlands does not support capital punishment and has signed international conventions on human rights, several politicians have argued in favour of letting the captured Dutch fighters be tried in Iraq or Syria, where they would likely be put to death. In that context, the death penalty has been called the “ultimate consequence”. The fate of the children of captured foreign fighters is an even more sensitive issue. While most agree that these children cannot be held accountable for their parents´ crimes, the question whether this means that the state has the moral obligation to try to repatriate them has been an ongoing matter of contention.
The current response to the threat of returning foreign fighters in the Netherlands can be characterised as a combination of preparation and denial. On the one hand, the Dutch state has started preparing for the potential return of foreign fighters, more or less since the first ones started to leave the country. The public prosecution service has made extensive preparations for criminal investigation and prosecution of those fighters, in case they return home. On the other hand, the current political attitude reflects a level of denial of responsibility, for the return of these fighters and their civil rights. Meanwhile, around 50 Dutch foreign fighters and 90 children still remain in camps in Syria and Iraq. While it looks like the government is off the hook for now, the debate around these fighters’ return, or continued limbo, is unlikely to go away anytime soon.
 With regard to the mothers, the court ruled that only if it was impossible to repatriate the children without their mothers, the obligation would be extended to the mothers as well.
 The Dutch government can only legally retract an individual´s Dutch citizenship in case of dual nationality. However, some legal scholars argue that this is discriminatory practice, since it implies a different treatment than that of those fighters with single nationality.
 C. Paulussen, K. Pitcher, Prosecuting (Potential) Foreign Fighters: Legislative and Practical Challenges, Research Paper, The International Centre for Counter-Terrorism – The Hague (ICCT), 30 Jan 2018, p. 22.
 Currently, a new bill criminalising being physically present in territory ruled by a terrorist organisation is being put up for debate in the Dutch Senate. This would however not be applicable retroactively.
 UN Security Council, Letter dated 18 February 2015 from the Chair of the Security Council Committee established pursuant to Resolution 1373(2001) concerning counter-terrorism addressed to the President of the Security Council. Annex: Bringing terrorists to justice; challenges in prosecutions related to foreign terrorist fighters’, S/2015/123, 23 February 2015.
 Article 83 and 83a of the Dutch Criminal Code.
 C. Paulussen, K. Pitcher, Prosecuting (Potential) Foreign Fighters: Legislative and Practical Challenges, p. 19.
 See Public Prosecution Service, ‘OM pakt IS-terugkeerders met een missie aan’, 15 February 2017. See also J. Pieters, ‘Prosecute Dutch jihadists still in Syria, Iraq: Public Prosecutor’, NL Times, 16 February 2017.