PART 1 OF HEARING

Today, the Hague Court of Appeal held the first substantive hearing in the appeal proceedings against Xaviera S. The hearing focused on the case file, the claims of the injured parties, and the exercise of victims’ speaking rights. The next hearing is scheduled for Friday 5 June, during which the parties will present their closing arguments, followed by replies, rejoinders, and final statements. The Court indicated that judgment is expected during the first half of July.

At the outset of the hearing, the Advocate-General presented a summary of the charges before the Court. The case concerns allegations of participation in ISIS in Syria and Iraq, preparation of terrorist offences, and two counts of making terrorist threats. A separate charge relating to pillage as a war crime previously resulted in an acquittal. Now charged in conjunction with money laundering, the charge of pillage remains part of the appeal proceedings. The Court also addressed the position of the injured parties in relation to the threat allegations.

The defence disputes the findings relating to participation in ISIS and preparation of terrorist offences. Although the defendant also appealed the convictions concerning the threats, it was noted that she had not originally intended to challenge those findings but followed the Public Prosecutor’s appeal.

A procedural issue remains regarding documents relating to a Turkish conviction. Despite previous requests, the prosecution has not yet obtained the relevant material. The defence argued that the proceedings have now lasted approximately six and a half years and emphasised that the defendant has rebuilt her life in the Netherlands, now lives with a new partner, and has become a mother again. While acknowledging the potential relevance of the Turkish documents, the defence questioned whether further delay would be justified.

The Court subsequently heard the defendant’s account of her journey to Syria and her experiences there. The questioning focused on her conversion to Islam in August 2013, her preparations for travelling to Syria, and her marriage by telephone to her first husband, in January 2014.

According to the defendant, the marriage was primarily a practical necessity, as travelling to Syria as an unmarried woman was not possible. She stated that at the time she was searching for purpose and a sense of identity. Following her conversion to Islam, she came to believe that Syria would offer the environment in which she could find both.

When asked about life under ISIS, the defendant described a reality that differed significantly from her expectations. She told the Court that she failed to find the peace she had been seeking and instead lost her sense of self. She characterised the environment as one in which personal autonomy was largely absent, explaining that individuals were expected to follow instructions without question. Looking back, she stated that she does not understand why she chose to travel to a war zone.

A significant portion of the hearing concerned the defendant’s relationships with two men alleged to have been affiliated with ISIS. Regarding her first husband, the defendant stated that she assumed he was involved with ISIS once they arrived in Raqqa. She described him as holding a leadership role within the organisation and acknowledged that he worked at checkpoints and supervised others. However, she maintained that she never directly asked him about the nature of his activities and therefore could not say with certainty what role he played.

The Court also examined the defendant’s second marriage. The defendant acknowledged that his name appeared in an ISIS marriage register and assumed that he was affiliated with the organisation, although she maintained that he was not actively fighting when she met him.

The Court further questioned the defendant about statements she made during her time in Syria expressing support for the idea that Muslims should live in an Islamic state. Referring to a WhatsApp conversation with her mother from May 2017, the presiding judge asked whether these views reflected support for ISIS. The defendant acknowledged that they did, but repeatedly stated that she no longer fully understands how she thought during that period.

The hearing also revisited the role and activities of her first husband. According to earlier statements, he initially worked at ISIS checkpoints before later assuming more senior responsibilities. The defendant acknowledged that he received financial support and that ISIS provided allowances based on the number of wives a member had. When confronted with earlier statements about his operational activities, including planning drone attacks after being wounded, the defendant stated that she could no longer remember making those remarks.

The Court devoted considerable attention to two threats that form part of the indictment. The first involved a threatening message via Twitter directed at a Dutch journalist, accompanied by photographs of identification documents and a firearm. The defendant stated that she published the message through her social media account under pressure from her husband and feared physical violence if she refused. She denied having any personal intention to threaten the victim and stated that she now recognises the fear such actions would have caused.

The second threat concerned a Facebook post directed at a Dutch journalist, accompanied by a photograph of an AK-47 assault rifle. The defendant maintained that the message had been posted by her husband, although the Court noted that the wording resembled her own writing style. While she acknowledged being aware of the post at the time, she denied drafting it herself.

Several social media posts expressing support for martyrdom and ISIS ideology were also discussed. The defendant repeatedly stated that she could not remember posting the messages, although she accepted that the accounts belonged to her and acknowledged that the content was consistent with the beliefs she held at the time. The presiding judge observed that some of the messages could reasonably be interpreted as encouraging others to join or support ISIS.

The hearing further addressed a report prepared by the Netherlands Institute for Forensic Psychiatry and Psychology (NIFP/NTA). Defence counsel reiterated concerns previously raised regarding the accuracy of certain passages. The defendant maintained that some of her statements had been interpreted too broadly or had resulted from leading questions posed during the assessment.

Finally, the Court revisited the allegations relating to houses occupied by the defendant in Syria. The prosecution questioned her about earlier statements indicating that some properties appeared to have been vacated abruptly, with personal belongings still left behind. The defendant stated that she had not reflected at the time on whether the houses might have belonged to displaced residents and only later considered the possibility that the properties may have been unlawfully appropriated.

She maintained that any involvement in the acquisition or allocation of the houses rested entirely with her first husband, and that she had no involvement in, or knowledge of, the process through which the properties were obtained. According to the defendant, she simply accompanied him and arrived at houses that were already empty. She stated that she never witnessed residents being removed from their homes and was unaware of how the properties came into the possession of ISIS or her husband.

When asked whether she ever suspected that the houses had been obtained illegally, the defendant replied that she largely accepted the circumstances around her without question. She described herself as having completely submitted to her husband’s authority. The Advocate-General concluded this line of questioning by asking whether the defendant was effectively describing a situation of coercion or compulsion.

Hague Court of Appeal Considers Groundbreaking Cumulative Charging in International Crimes Case

On 11 November at 14:00, the Hague Court of Appeal held a pre-trial hearing in the appeal proceedings against Xaviera S. The suspect was not present but was represented by counsel. A lawyer representing the victims also attended the session.

The primary purpose of the hearing was to consider a proposed amendment to the formal charges against the suspect, as requested by the Prosecutor’s Office.

Advocate-General Veldhuis presented the Public Prosecutor’s proposal to add a new charge to the indictment. This charge concerns an ordinary offence under Dutch criminal law — known as a commune delict — which, under Article 1(4) of the International Crimes Act (Wet Internationale Misdrijven – WIM), can be treated as an international crime when it is closely connected to one.

In addition to the existing charge of pillage (for which the suspect was acquitted at first instance), the Prosecutor’s Office now seeks to add a charge of money laundering, specifically the laundering of property obtained through pillage. According to the prosecution, the suspect used and lived in houses in Syria that had been taken from their rightful owners.

In essence, the prosecution argues that by using these looted properties, the suspect not only benefited from the crime of pillage but also committed money laundering connected to that war crime.

This could be a legal first for the Netherlands: the case would mark the first time that pillage has been charged together with a cumulative ordinary crime of money laundering. There is no known precedent here of pursuing such a combination, making this a potentially groundbreaking development in international criminal jurisprudence for the Netherlands.

On 26 April 2024, the District Court of The Hague issued its judgment in the case against Xaviera S.

The Court found insufficient evidence to support the charge of war crimes (pillaging). It ruled that it could not be established that the houses in which the suspect had lived had been unlawfully seized by ISIL, or that she had knowingly contributed to such acts. She was therefore acquitted of this charge.

However, the Court found her guilty of:

• Membership of a terrorist organization (ISIL);

• Preparation of terrorist crimes; and

• Threatening two Dutch journalists through online statements.

For these offences, the Court sentenced Xaviera S. to 860 days of imprisonment, of which 720 days were suspended under probationary conditions, which meant that she did not have to serve additional prison time beyond what she had already spent in detention.

In determining the sentence, the Court emphasized several mitigating factors: her progress in psychosocial treatment and rehabilitation, as well as the overly long duration of the proceedings.

In addition to the prison sentence, Xaviera S. was sentenced to 480 hours of community service for the threats made against the two journalists. The Court declared the journalists’ compensation claims inadmissible.

Because of her acquittal for the war crime of pillaging and the inadmissibility of the compensation claims, the Public Prosecution Service lodged an appeal against the Court’s verdict.