Time will tell: Defining violence in terrorism court cases

Abstract

Calculating the potential risk of future terrorist violence is at the core of counter-terrorism practices. Particularly in court cases, this potential risk serves as legitimization for the preemptive criminalization of suspicious (financial) behaviour. This article argues that the preemptive temporality seen in such court cases is a practice of ‘sorting time’ and producing distinct legal definitions around future violence. Building on postcolonial and feminist scholarship on temporality, the article examines preemptive temporality as the material, embodied and multiple engagements with time that are enacted in terrorism court cases. Through the use of empirical data obtained from court observations, court judgements and interviews with legal practitioners, accounts of empirical temporalities are traced to illuminate other forms of violence that until now have been overshadowed by the dominant (and relatively unchallenged) perception of future terrorist threats that is enacted in the courtroom. In this way, the article makes two important contributions. First, it advances the theoretical debate on preemptive security through an examination of how legal and security practices co-produce temporality by defining future terrorist violence. Second, it contributes empirically by showing how temporality is constructed in multiple ways, paying specific attention to temporalities resisting dominating perceptions of future terrorist violence.

Introduction: A day at the court

In June 2019, a young couple appear before the Rotterdam District Court on charges of terrorism financing. At the start of the court proceedings, the judges interrogate the defendants regarding the context of and intention behind two financial transactions made to individuals in Syria in 2014. During this interrogation, the president of the court says: ‘The question of this sitting is what you knew at that time. Until now, you have not elaborated on this.’ ¹ It is not unusual that courts ask defendants to reconstruct events that have occurred in the past. The reconstruction of events in the past is an important function of court proceedings and may be necessary for securing a conviction in the present and setting a precedent for the future (Chowdhury, 2020). What makes a terrorism-financing case unique is that a conviction is dependent on whether there was a possibility that money might have been used to fund violence, not whether the money actually contributed to terrorist activities. Thus, to secure a conviction, the prosecution does not need to prove that the money transferred was eventually used for terrorist purposes. It is sufficient to prove that the defendant accepted the reasonable chance that the money might be used for terrorist purposes. ²

To examine the possibility that the money may have been used to fund terrorist violence, the judges ask the defendants to reconstruct their knowledge at the time of the transactions in question. One of the defendants claims to have transferred the money to an old friend who had travelled to Syria in 2013: ‘I transferred the money for daily sustenance and never had the intention of financing terrorism. At that time, the situation was very different from now. It was not very clear what fighters were doing there. You think of this person in terms of how you knew him before.’ ³ The defendant explains that he had been under the impression that most people travelled to Syria to support the local population or to fight against the rule of President Bashar al-Assad. His lawyer makes reference to various newspaper articles, public statements and mosque sermons to illustrate that the discourse at that time supported the defendant’s claims. ⁴ The prosecution, however, argues that even in 2013 some of the terrorist organizations, such as Islamic State and Jabhat al-Nusra, were well known for their terrorist activities and propaganda. Speaking extensively about the crimes and violence committed by these terrorist organizations in both the Middle East and Europe, the prosecutor stresses the importance of a conviction. ⁵ Whether the transactions in this particular case contributed directly to any of these terrorist activities, or how they might have been used to fund violence, is not elaborated upon. The prosecutor’s argument establishes a broad and abstract connection between the money, past violence and potential future threat. This case, along with many other similar ones, therefore raises important questions regarding what actually counts as violence in legal proceedings characterized by preemption. How are past events and possible futures of terrorist activities mobilized to present a convincing case? And, in this sorting of time, what definitions of violence become visible, rejected or contested?

The court case described above, along with broader practices related to the prosecution of terrorism financing, can be understood as a preemptive security measure in the fight against terrorism. Preemptive security is characterized by ‘threats that are unknown and recognized to be unknowable, yet deemed potentially catastrophic, requiring security intervention at the earliest possible stage’ (De Goede et al., 2014: 412). This preemptive security logic of early intervention has an increasing impact on practices of law, especially when a ‘catastrophic future invites law to speculate about deeds not yet committed’ (Opitz and Tellmann, 2014: 123). At the same time, preemptive (juridical) constructions or definitions of violence and threat partly gain their credibility through legal practices. As De Goede and De Graaf (2013: 328) have argued, ‘terrorism trials are important stages on which the configuration of exception into law takes place, where “risky” behaviour is interpreted as potentially terrorist and where new social norms are set’. Legal practices and proceedings are therefore inherently entangled with questions about structural violence. On the one hand, the court has the power to construct and decide on definitions of possible future terrorist violence and attacks; on the other, it can produce violence by erasing or excluding slower, more invisible forms of violence to arrive at a court sentence. Despite these entanglements, preemptive measures are often viewed as extralegal or eroding legal standards. At the empirical level, little attention has been paid to the question of how legal and security practices together sort events in time to arrive at a narrative of anticipating catastrophic future violence.

This article takes up that question by empirically studying how time and preemptive constructions of terrorist violence are defined in the courtroom. In doing so, the article takes a specific interest in temporal relations with violence that remained unnoticed within or were considered irrelevant for legal proceedings. A broader attention to definitions of violence is important, as Amoore and De Goede (2014: 511) have argued that violence should be understood as more than (the threat of) terrorist or physical violence, and that ‘particular representational practices and social discourses are themselves violent’ because they single out specific communities for or target them with repressive security measures. Such slower, structural forms of violence may be less visible than the terrorist violence that is invoked as legitimization for security measures, yet they are never completely absent (Amoore and De Goede, 2014). In legislative discourses and court sessions related to the criminalization of terrorism financing, past violent terrorist acts are mobilized to sketch a daunting and threatening future, justifying preemptive formulations of the law and the consequent high number of convictions. This leaves us with the question of what other slower, structural forms of violence might exist as a result of the preemptive practice of defining terrorism, or as a consequence of the legal proceedings that draw upon it, and whether they are recognized by the court. How can we understand the anticipatory urge to narrow legal definitions of terrorist violence, or the material or empirical realities in which violence takes multiple shapes? Building on contributions that highlight possibilities for resisting preemption (Dunn Cavelty et al., 2015) and linear productions of the future (McNeilly, 2019), I ask how temporalities might be constructed differently, in ways that might resist the narrow juridical construction of future terrorist violence.

The main question posed in this article, is how temporalities sort legal-political possibilities of violence in court cases related to the alleged financing of terrorism. Building on the notion of what socio-legal scholars have called ‘making or sorting time’ (Beynon-Jones and Grabham, 2019), I propose to study the empirical, situated and material engagement with sorting time in terrorism court cases, rather than taking time as a natural given, external to law or politics. Through such an approach, we can not only gain a deeper understanding of the legal and political practices that define violence as terrorist, preemptive and prosecutable, but also highlight and elevate embodied and lived experiences of violence that remain underdiscussed. Studying multiple constructions of violence in the context of preemptive security measures is even more important, as such study can broaden our understanding of how imaginations of violence are entangled with temporalities and reduced to the singular definition of ‘catastrophic future’.

For the purposes of the argument presented here, I build on the literature in socio-legal studies on temporality (Grabham, 2016; Greenhouse, 1989; Mawani, 2014) and bring its insights to the debates on preemption in critical security studies (De Goede et al., 2014; Dunn Cavelty et al., 2015). Doing so, I show how preemptive violence can be empirically studied as a temporality or potential that is constructed and enacted through legal practices. I am inspired by the postcolonial literature on legal temporality not only to research how legal practices produce and sort temporalities in their governing of social and political life, but also to empirically explore and illustrate the multiplicity of temporalities that are brought before the court in terrorism-financing proceedings. Postcolonial studies reminds us to question and examine the silenced, rejected and erased constructions of violence. Through such an approach, we can unpack other imaginations, arguments and objects of violence that challenge the dominant preemptive focus of regulations aimed at countering the financing of terrorism. Providing a broader understanding of constructions of terrorist violence critically questions the legitimation for the preemptive framework of security politics and practices around the countering of terrorism.

Building on the rich and important debates in socio-legal studies and international relations on time, then, this article empirically examines the discursive and material practices of sorting time in terrorism-financing court cases, and furthers the debates on preemption and anticipatory security. Drawing on qualitative fieldwork in criminal courts in the Netherlands, Germany, Belgium, the UK and France, I show that a multiplicity of temporalities become visible through empirical accounts of both violence and time. I empirically unpack these multiple temporalities in relation to three themes that emerged from the data: (1) the pace of the prosecution, or the amount of time that elapsed between the relevant financial transaction and the trial; (2) the reconstruction of the past to enable prosecution in the present; and (3) the preemption of future terrorist activities. These themes are not exclusively relevant to prosecutions for terrorism financing, but the latter category of criminal offence is particularly interesting because of the novel and preemptive character of the way in which the offence is understood and the explicit promise that the prosecution of offenders will prevent future terrorist violence. In the absence of any requirement to prove an explicit link between the money and a planned attack, this promise is the main justification for criminalizing what might otherwise be a mundane financial transaction and prosecuting those involved.

The article is structured as follows. The following two sections lay out the conceptual framework of the article. First, I discuss the debates in critical security studies on preemption, focusing on the contributions from security scholars on the legal practices around preemptive security measures. Second, to enable better understanding of empirical approaches to the study of temporality, I elaborate on the relevant literature from international relations and socio-legal studies. Then, combining insights from these two bodies of literature, I discuss how I use violence as an empirical focus to unpack the formulation of a dominant legal temporality in court cases related to the financing of terrorism. The empirical section of the article is divided into three subsections, each addressing one of the three themes that emerged from the empirical analysis of the data. Here, I draw on the empirical data to elaborate on the imaginations of violence that are enacted during court procedures and how these constructions of future violence in themselves produce violence. The conclusion reflects on the broader political and social implications of the court cases examined and the creation of a new legal temporality.

Speed and suspicion: Security goes legal

Debates on preemptive security have increasingly paid attention to the tensions and challenges involved in translating security logics into legal formulations and proceedings (Aradau, 2017; De Goede, 2011; Opitz and Tellmann, 2014; Sullivan, 2014). Characterized by temporalities of emergency and preemption, security measures are continuously focused on the monitoring and disrupting of practices or networks with a ‘future terrorist intent’. This preemptive logic is informed by the idea that the enemy can strike at any time and in any place. To regulate the uncertain and potentially catastrophic future entailed by such an idea, political and legal measures are directed towards the criminalization of certain types of actions before a threat can materialize (Amoore and De Goede, 2014; De Goede, 2018; Sullivan, 2014). The way in which the offence of financing terrorism has been formulated is an example of this preemptive trend: Here, it is not necessary to prove that a terrorist attack actually occurred after financial support was received. Nor does the money have to be sent with a clear purpose to finance a particular action. A conviction can be secured if the prosecutor can prove that the sender knows or had reasonable cause to suspect that the money would or might be used for terrorism purposes (see FATF, 2016).

The preemptive foundation of counter-terrorism practices – speedy policies, preventive measures and the gathering of (fragmented) data – has been juxtaposed with the foundations on which legal practices are built. The preemptive practice of disrupting and preventing terrorist networks is heavily dependent on imaginations and calculations of future threat. In order to calculate the possibility of future violence, assembling and monitoring data become essential objectives to facilitate security interventions and legal decisions. Amoore (2013: 63) has described how ‘the collection of knowledge on the past – in the form of data analyzed for statistical patterns and calculated in the present – became the predominant risk tool for predicting and controlling the future’. She argues that this knowledge of past instances, however, can be very limited and fragmented. By looking at hearings at the UK’s Special Immigration Appeals Commission, where foreign nationals can appeal decisions to incarcerate or deport them on the grounds that they represent a threat to national security, she explains how security knowledge often consists of secretive, intelligence-based snippets of data that, stitched together, give the impression of potential threat. These assemblages of suspicious data can become grounds for legal convictions and have profound political effects (Amoore, 2013: 63).

These preemptive security temporalities increasingly find their way to domestic criminal courts, where the deliberate and hesitant character of law is more present than it is in other security measures. Opitz and Tellmann (2014) discuss the resultant tensions between legal and security temporalities, and conclude that law’s assumed indifference towards time is impeded in such a context. Law is forced to speculate about deeds not yet committed, opening itself to the ‘politics of time’ (Opitz and Tellmann, 2014: 108). De Goede and De Graaf (2013) describe how preemption reconfigures traditional legal practices to open up space for speculation and logics of possibility. By unpacking terrorism trials, they illustrate how this preemptive turn is enacted and contested, analyzing court proceedings as important performative spaces in which past actions can be inscribed with terrorist intent. In their study of a Dutch terrorism trial, the intelligence evidence consisted of fragmented data that, stitched to broader speculations on and discourses about Islamic jihadism and violence, were made sinister and suspicious outside their original context.

Opitz and Tellmann (2014) furthermore argue that evidentiary standards of the law are in tension with the fragmented, secretive and often speculative nature of the data used for security interventions. Building upon this, De Goede (2018) examines how proscription as a preemptive security and legal measure is articulated and contested within legal practice. She argues that proscription as a pre-crime measure fundamentally alters the judicial assessment of criminal intent, as it ‘brings the potential catastrophic future into the present and renders possible a present sanction in advance of violence’ (De Goede, 2018: 340). Such proscriptions, however, are often made on the basis of ‘sketchy’ evidence and suspicion, creating new punishable acts. Similarly, Sullivan (2014) describes how preemptive practices of the UN listing regime challenge the reactive, evidence-based procedures of law. Both Sullivan (2014) and De Goede (2018) conclude that the notion of preemption has blurred the distinction between traditionally forward-oriented security knowledge and backward-oriented legal decisions. This entanglement of legal and security temporalities results in a more hybrid practice that attempts to harmonize the two temporalities by slightly altering the basic characteristics of both practices.

In conclusion, the debates on preemption, security and law illustrate two important developments. First, the harmonization of legal and security practices is a difficult process in which the basic features of both disciplines are challenged. This creates an opportunity for researchers to analyze this process and unpack how tensions and challenges arise, how practices are changed, and what the legal and political consequences are. Second, despite the difference between preemptive security and legal procedures, the two fields of practices co-produce counter-terrorism measures. Their intertwinements illustrate the importance of studying legal and security temporalities, not as dichotomies, but as an entangled practice embedded in a broader political, legal and social structure. For this reason, empirical accounts of temporalizing practices can illuminate how such practices sort possibilities of threat, future violence, and further political and legal action.

The aim of this article, then, is to examine temporalities as a key practice for both legal and political decisions to criminalize certain forms of financial behaviour as terrorist violence. In the next section, I elaborate on the arguments of feminist and postcolonial international relations and socio-legal scholars who pay attention to the multiplicity of time (Chowdhury, 2020; Grabham, 2014, 2016; Hom et al., 2016; Hutchings, 2008; Keenan, 2017; Mawani, 2014) and offer tools for studying empirical ways of making temporality.

The multiplicity of temporalities

This article engages with the literature on temporality to explore the political possibilities and legal practices involved in the definition of terrorism financing in advance of materialized violence and the use of such a definition to secure convictions. It therefore builds on the work of both international relations and socio-legal studies scholars who take temporality as a point of inquiry into modes of governance. This literature suggests that time is not approached as singular, real or independent of the social world, but is understood as being produced and enacted through intertwined legal and political practices. In the following section, I elaborate on how to study empirical accounts of temporality, bringing together debates from international relations and socio-legal studies.

Time is an essential feature of international politics and governance. Through repetition and the production of symbolic descriptions or materials (clocks, calendars, standardized expressions of time), temporality becomes ‘real’ and gains a sense of universality and standardization (Hom, 2018a). This standardized and universal understanding of time is equally important for legal settings, where practices of law are strongly shaped by notions of time: laws cannot be retroactively applied to crimes (nulla poena sine lege); legal proceedings should be finished within a reasonable time (lites finiri oportet); court cases are held at specific times and dates; and legal terms restrict the periods of time in which certain actions can be taken. At the same time, the law is considered to be above time or timeless (Greenhouse, 1989). It is presented as a practice that continuously balances different interests and maintains a certain form of neutrality. This balancing happens through legal decisions in the present being controlled by prior decisions, while present decisions also have the power to overrule such prior decisions (Greenhouse, 1989).

Feminist and postcolonial scholars, however, have critiqued interpretations of legal neutrality and have argued for the adoption of a more empirical approach to highlight the multiplicity of other political (or legal) temporalities (Grabham, 2016; Hom, 2018b; see also Hutchings, 2008; Keenan, 2017; Ogle, 2019). Hutchings (2008: 167), for example, suggests studying the temporal perspective of world politics as heterotemporality: ‘forms of temporalisation, embedded in lived experience’. Tracing empirical enactments of time opens up possibilities for critically unpacking political judgments whose justifications are based on temporal claims. Hutchings’ argument draws on an analysis of colonial forms of governance and classifications of political hierarchies, and is equally relevant for our case on preemptive politics, as Ogle (2019) has shown. According to Ogle, future-oriented risk governance, emerging from the global modern capitalist system, is built on a Western-centric perception of history, danger and risk. Attuning to a multiplicity of histories, she argues, is essential for decentring Euro-centric narratives and seemingly universal claims to temporality.

Similarly, in postcolonial legal studies, Mawani (2014) points to law’s temporalizing force: legislation and legal practices are built on an ordering of events and practices in time. On the other hand, studying empirical accounts of temporality makes it possible to challenge these ‘dominant structures of temporality’ by demonstrating what Mawani calls ‘lived temporality’. She describes this as ‘a heterogeneity of lived temporalities that law aspires to assimilate and obfuscate but which also actively challenge and refuse law’s temporal claims’ (Mawani, 2014: 93). These contributions from postcolonial scholarship call for an empirical approach to understanding the practices and governing of time. Beynon-Jones and Grabham (2019) summarize Mawani’s insights as an invitation to unpack legal events to explore the social struggles that underlie them. They argue in favour of ‘an approach to law, regulation and time that conceives of time as made or co-produced, not pre-existing and separate’ (Beynon-Jones and Grabham, 2019: 3). Accordingly, they recommend studying the legal practices that play an essential role in sorting time and producing temporality. These legal practices are both discursive and material practices. After all, the enactment of (a standardized) time would not have been possible without clocks, railway schedules, telegraph lines and legal orders (Gordon, 2018).

To understand how temporalities are constructed, Grabham (2016: 32) suggests that we ‘follow the legal things’ in order to describe the interaction of actors in legal networks and how they shape and are themselves defined by legal regulatory frameworks. Within this approach, time is not understood as either ‘natural’ or ‘social’ but ‘as always both, brewed through changing relationships of humans and material forms’ (Grabham, 2016: 14). Drawing on this literature, I study legal temporalities as constituted in relations with materials, humans, legal forms and political judgments. The article therefore moves beyond the question of how to define temporality (past, present or future events) to focus on how multiple legal temporalities become visible when we adopt this empirical way of inquiring.

Through an empirical study of temporality, the article aims to make two contributions to the literature on preemptive security and temporality. First, I analyze the materials and practices that structure, disrupt or uphold legal temporalities. Postcolonial and feminist scholars emphasize the need for empirical study of temporalities that are marginalized within, excluded from or rebellious against the dominant narrative of events in time (Barad, 2015; Beynon-Jones and Grabham, 2019; Gordon, 2008). I further the literature on preemptive security by illuminating other forms of violence that until now have been overshadowed by the relatively unchallenged dominant perception on violence in terrorism cases. Particularly since preemptive security measures aim to protect society from violence, we need a broader and empirical examination that accounts for how violence is experienced, constructed or embodied.

Second, rather than viewing preemption and security temporality as extralegal phenomena, I understand court cases as spaces where legal and political practices become intertwined in the production of temporality. As argued above, in court cases related to the countering of terrorism, this becomes especially relevant owing to law’s engagement with preemptive security logics and the absence of any requirement for materialized acts of violence to establish criminal liability.

Empirical accounts of temporality

In this article, I adopt an empirical approach to the study of temporality by examining how temporalities are sorted in legal practices during court proceedings on terrorism financing. The empirical data used for answering this article’s questions about legal temporalities in preemptive security are based on two years of fieldwork (2017–2019) on the criminal investigation and prosecution of individuals charged with terrorism financing in various European countries. During this time, I attended several court cases on terrorism financing, where I observed the proceedings. I also interviewed lawyers, prosecutors, representatives from law enforcement agencies and NGOs, and one judge. In addition, I have analyzed legal documents, including court verdicts, international guidelines for criminal regulations and legislative documents. Most of the data were collected in the Netherlands, but I also studied cases in the United Kingdom, Belgium, France and Germany. Studying temporalities was not part of my initial research project, but became an important part of the research through the empirical data collected.

Noticing references to time and temporality, I mapped how actors enacted time. I used Atlas.ti to map out the different ways in which temporalities were discussed, materialized or contested by first attaching codes to the data. From this exercise, three main themes emerged:

1. the time between the transaction and the court case;

2. the reconstruction of knowledge in the past, to prosecute in the present; and

3. the (lack of) anticipation of different futures.

In relation to each theme, I trace how multiple reconstructions of time were presented, how these temporalities were enacted by materials, and where the tensions were between lived temporalities and the dominant understandings within legal proceedings. Through the analysis of the lived temporalities identified, I highlight a myriad of experiences, deliberations and emotions that often become invisible in the practices around preemptive forms of prosecution. The three themes are distinct, yet together provide a revealing way of studying structural violence and its relation to legal practices. The first theme elaborates on how terrorism-financing cases are brought before the court. In addition to providing depth and background on the practices around the prosecution of individuals for offences related to the financing of terrorism, the first subsection below, which deals with that theme, discusses the pace of court proceedings and illustrates the tension between embodied and linear experiences of ‘time passing’ and how legal subjects can be ‘temporally stretched’ or shrunk (Chowdhury, 2020: 2–3). This theme illustrates slower, almost invisible forms of violence against defendants that result from the legal practices observed in the courtroom. It is important to highlight these modes of violence to counter the dominant framing of future terrorist threat as the sole form of violence that is important in the type of prosecutions examined here. The second theme focuses specifically on how temporality and violence were discussed during the court cases I observed. In the discussion of this theme, I trace how some materials and narratives become dominant, overshadowing other accounts of embodied and experienced violence. Here, I mainly focus on discourses involving colonial temporalities that strip countries in the Middle East of their particular histories and temporal claims. I then move to the third theme, which examines the broader social and political consequences of how temporalities are governed. The discussion here places the empirical data in a societal context and offers a glimpse of alternative temporal claims that resist legal practices of constructing a narrow definition of future terrorist violence.

Careful law and waiting for the court

One of the most common tensions described between security temporalities and legal temporalities is that law functions slowly, while security is shaped by a ‘ticking timebomb’ scenario that demands fast action (Opitz and Tellmann, 2014). During my fieldwork, I noticed that it was not just time but also pace and timing that played an important role in the preparations for court cases related to the financing of terrorism. Sometimes court cases would be announced, then delayed or deliberately postponed. During interviews, lawyers would sigh about cases dragging on, and defendants would complain about living in fear over their court case for months or even years. In his ethnographic description of the Conseil d’Etat, Latour writes that ‘common sense finds the slowness of both law and science incomprehensible’. In response to this common sense, he adds, judges would express and even celebrate ‘the necessity of time, slowness, care ... for the procedure’ (Latour, 2010: 221). Indeed, words such as ‘deliberation’, ‘hesitation’ and ‘careful’ are often used in descriptions of legal proceedings. Even before a case comes to court, investigations are supposed to be conducted carefully. In this subsection, then, I examine what it means to account for multiple temporalities of pace and duration when bringing a case to court.

An investigation into an alleged case of terrorism financing can be triggered in various ways. Information about transnational financial networks can reach national law enforcement agencies via international cooperation bodies such as Europol or Eurojust. As direct transactions to conflict zones such as Syria are often impossible, money from Europe is transferred through money transmission offices such as Western Union, using a middleperson who is often located in Turkey or Lebanon. This middleperson takes the money and transfers it through informal money systems to Syria or Iraq. Once countries identify a middleperson, they can trace multiple independent transactions from European countries to the Middle East. These transactions then become part of a criminal investigation or intelligence. Often the classification of a transaction is made by the national financial intelligence unit, which passes information about suspicious financial transactions either to a prosecutor or law enforcement, or to other relevant security actors. Once a criminal investigation is opened, law enforcement investigates the recipient of the money – for example, whether they are known to be a foreign fighter or on a sanctions list. They also investigate the sender of the money, usually through interrogation by the police, but also through house searches and the seizure of electronic devices to investigate possible terrorist affiliations. If the prosecutor decides that there is enough evidence to prove a case of terrorism financing, the case is then taken to trial.

In such cases, the collection of evidence is particularly difficult when it involves (financial) investigations outside the investigating body’s jurisdiction, especially if it concerns transactions to conflict areas such as Syria, where it might be impossible to find out what exactly happened with the money. Furthermore, most of the information that is available in these investigations consists of intelligence, which may not directly be admissible as evidence (see FATF, 2018). For these reasons, a prosecutor might decide to postpone bringing the case before the court while investigations remain ongoing. Evidence or information from other terrorism-related cases and investigations might strengthen the argument of the prosecutor that the recipient of the money was indeed fighting for a terrorist organization. In some instances, terrorism-financing cases are only brought before the court after the recipient of the money has been convicted of participation in a terrorist organization, which makes it easier for the prosecution to argue that any money sent to that individual would be used for terrorist purposes. ⁶ At other times, it is just a practical question of manpower and capacity that determines how long it takes before a case is brought before the court.

In the Netherlands, one of the first terrorism-financing court cases under the current legislation was tried in March 2016. The financial transactions from the defendant to his brother took place between September 2013 and December 2014. With only two years between the last transaction and the date of the court hearings, this was a relatively ‘fast’ case. In 2019, about nine terrorism-financing cases were brought before Dutch courts, ⁷ of which around half dealt with singular or successive transactions that had taken place in 2014. The careful collection of evidence and monitoring of different investigations can result in delays, yet is sometimes necessary to ensure that legal standards of evidence and due diligence are met. This understanding of legal proceedings follows a very dominant understanding of legal time: time is understood as passing in a linear fashion, and with this passing of time material evidence accumulates. Taking more time to research and investigate results in more materials or knowledge that might be used as evidence to show that specific money transfers contributed to the financing of terrorism.

Indeed, much more detailed information on the crimes committed by Islamic State and the horrors of the systematic war crimes and human rights violations by various terrorist organizations in Syria and Iraq is now available than was the case four years ago. Taking the necessary time has not only resulted in a detailed mapping of foreign fighters’ financial networks in Europe, but also made the enactment of terrorist violence more tangible in courtrooms. The prosecution enacts terrorist violence by referring to the situation in the Middle East, but also by linking terrorism-financing cases to attacks in Europe after 2014. In this way, financial transactions in 2014 become linked to eruptions of terrorist violence in different spaces and times. Prosecutors and law enforcement agents emphasize the careful practice of waiting while collecting and connecting the information required to mount a successful prosecution in complex legal circumstances. In this perception, time is enacted through the care taken to ensure decent legal practice, the care applied to the accumulation of information, and the care taken to ensure a successful conviction.

While time is often understood in a linear fashion, where future actions logically follow past actions or events, the testimonies that are heard during these cases often involve a very different form of temporality. Many terrorism-financing cases revolve around family relations, where parents, siblings or spouses have sent money to relatives who had travelled to Syria. In the years between sending the money and appearing before the court, life-changing events can fundamentally change defendants’ relations with the recipients of the money. As one prosecutor put it:

of course, if there is four or five years between the transaction and the court case, someone who was only 18 years old, and a child really, and transferred money to their cousin ... after five years, this person is 24, and a different person who finished their studies, or is studying and working and doing different things. So, you should be careful that with bringing these cases for the court, you don’t set the clock back five years and label these persons as terrorist offenders. (Interview 1)

In this quote, the reference to ‘setting back the clock’ highlights the importance of understanding the entanglement of time and violence. This ‘setting back the clock’ – or ignoring, silencing or downplaying the lived temporalities of defendants – is an important enactment of violence other than terrorist violence that is often not recognized as such. The passing of time for the prosecutor results in more access to relevant legal materials: documents, other convictions, testimonies and broader distribution of knowledge on terrorism. Yet, for defendants, it is the lack of a materialization that defines their sorting of time: no material evidence of what happens with the money they sent, less material evidence of what their knowledge was at that time, no materials that capture the emotional damage of enduring lengthy procedures. For example, in 2017, a French woman was sentenced to two years in prison for terrorism financing. She had sent money to her son, who claimed to be in Malaysia but had actually travelled to join Islamic State. ⁸ By the time criminal proceedings had started, her son had been killed in Syria. Her lawyer described this as a ‘double punishment’, where she not only had to live through the grief of losing her son but was also punished for financially supporting him (Interview 2). This case is not unique, as parents in the Netherlands and Belgium have also been convicted for sending money to their children, yet were prosecuted after the deaths of their children in Syria or Iraq. ⁹

These examples illustrate how the pace of legal procedures and subsequent legal decisions on what to include in the legal trajectory form part of defendants’ lived temporalities. In his work on legal temporalities, Chowdhury (2020) describes how courts have an important function of structuring legal subjects as either independent of various forms of violence or connected to such violence and constituted by it. A decision to include more empirical and broader forms of violence can determine how legal events are classified. Including more of the empirical and lived experiences of violence is described by Chowdhury (2020: 2) as ‘temporal stretching of the legal subject’. This temporal sorting of events changes the scope of a legal rule by determining what facts matter in a case and how overarching structures of violence and oppression are considered relevant (Chowdhury, 2020: 2). In our cases, the courts show a temporal shrinking of the legal subjects, where, despite the slow pace of proceedings, a very narrow and limited understanding of temporality is constructed in the court. This structuring of legal events is very much a material practice that tends to focus on the moments and events that fit into a clear, clean and linear story that can serve as a basis for conviction without the messiness of everyday lives and changing relations. In highlighting what is considered relevant material – evidence about the transaction, media coverage of terrorist organizations, online conversations between the sender and receiver of the money, the case file – the court dictates a temporality that allows for a smooth story in anticipation of future judgment (Van Oorschot and Schinkel, 2015). Other events that do not have the capacity to materialize into legally relevant objects or events – such as (the absence of) a death certificate, personal interactions between family members, or trustworthy accounts of what individuals in Syria were actually doing – are more difficult to locate. In terrorism-financing cases, particular attention seems to be paid to (the prevention of) terrorist violence, yet only limited attention is given to the violence experienced by defendants undergoing a ‘setting the clock back’ through a lack of materials that speak on their behalf.

Violence, then, there, now

In the previous subsection, I analyzed how the construction of temporalities is connected to the pace or duration of legal proceedings and how this results in practices of both care and violence. In this subsection, I zoom in on the court sittings and the legal arguments and materials presented for the court. I examine how constructions of terrorist violence materialize in court proceedings and how they are closely intertwined with time and temporalities.

Let us return to the court case described in the introduction. During the sitting, the defendant finally explains why he made the money transfers:

I knew the recipient of the money from the place where I lived, and I knew him really well. I transferred the money for daily sustenance, and I never had the intention to finance terrorist activities. At that time, the situation seemed very different from now. It was not really clear what fighters were doing there. So, you think about that person in the way you knew him. He was not a violent person at all. You think about how you were together. You think about how people travelled to Syria to help the Syrian people, who were oppressed by the Assad regime, and not to finance terrorism. I had an image of how I knew him, and at that time was a very different image on the situation there in the media, and it was not really clear. If I knew then what I know now, I would never have sent money. ¹⁰

In December 2013 and August 2014, the defendant had made two transactions, one to a friend and the other to his brother-in-law, who were both in Syria after having joined Jabhat al-Nusra. This case is hardly unique, as in many terrorism-financing cases the offence consists of the transfer of a small amount of money, between 2013 and 2015, with the intention of supporting someone the defendant knows personally. In the absence of the defendant’s active intention to facilitate terrorist violence abroad, or concrete evidence that their financial support resulted in terrorist activities, a broad interpretation of violence is used during trials for this type of offence. According to the jurisprudence of the court, a foreign fighter who resides in territory governed by a terrorist organization is unable to distance themselves from the violent activities of that organization. Sending money to foreign fighters who are in territories under the control of a terrorist organization results in legal liability for terrorism funding.

This broad interpretation of the law, however, makes it to a large extent irrelevant for defendants to argue about and prove what they did or did not know about Islamic State, Jabhat al-Nusra or Syria, or about what the recipient of the money was doing in a specific area at the time of the transaction. One defence lawyer described this tension in the following manner:

In terrorism cases, this is difficult, especially if this relates to the situation in Syria and Iraq, because we don’t know what happened. At the same time, we know horrible things have happened. The solution to this is, rather than acquitting everyone, is to lower the threshold for convictions. (Interview 3)

According to this lawyer, terrorism-financing court cases differed from other criminal cases in terms of the disregard that was shown for the personal and individual details of the case. In his experience, the preemptive feature of the criminalization of terrorism financing has solidified a loose – and largely unproven – connection between sending money to relatives and the terrorist activities of organizations in Syria and Iraq. Yet the aforementioned tension is not only caused by the preemptive character of the law. Following the official declaration of the Caliphate by Islamic State leader Abu Bakr al-Baghdadi in April 2013, the financial situation, war alliances, sources of income, goals, control of territory and many other features of Islamic State underwent major changes until the organization’s defeat in 2019. ¹¹ Yet both the line of sentencing of Dutch courts, which is based on the idea that small amounts of money contribute to terrorist activities, and the motivation behind it have remained unchanged. The preemptive focus on preventing terrorist violence has resulted in a form of legal timelessness, where the sending of any amount of money, regardless of the point in time at which it was sent, is thought to risk contributing to violence. There is little specific attention to the historical particularities of what money represents or might represent at different times, as sending money is preemptively understood as enhancing violence.

In many of the Dutch cases, despite the individual and unique stories and circumstances of each case, the judgments are almost identical in their reasoning, with certain sentences about the violence of the Syrian war and the rise of terrorist groups being literally repeated in every case. Interestingly, the fact that evidence of what actually happened with the money in the unique stories of these cases is considered irrelevant is a legal practice that can be seen in multiple jurisdictions. This erasure of individual narratives in order to protect an uncertain future is a form of violence that remains unnoticed in the legal discussions around countering terrorism. Not only are the individual particularities of the cases made flat, but the discourse on Syria and Iraq also reminds us of a certain perception on the Middle East, whereby ‘Orientals were rarely seen or looked at; they were seen through, analyzed not as citizens, or even people, but as problems to be solved or confined’ (Said, 1978: 207). From a postcolonial perspective, this is a continuation of a particular temporal approach to non-Western societies that erases particular pasts and presents by, for example, projecting a universal future horizon (Fabian, 2014: 28–30; Keenan, 2017) or confining these societies to the timeless ‘waiting room’ (Chakrabarty, 2008: 8). Accordingly, even though the lawyer in the aforementioned Dutch case brought newspaper documentation of various and competing discourses regarding the status and control of terrorist organizations during 2013 and 2014, ¹² these materials did not become part of the timeline of the court.

Through the erasure of such materials – the specific details of the political and social context of the Levant, as well as the political circumstances and personal affiliations of those who receive and spend the money – Syria and Iraq are portrayed as eternal violent spaces. Those in Europe who send money become related to this temporal othering of the Levant and ‘part of the problem’, which is enacted and emphasized through the law’s interpretation of the Levant as inherently and continuously violent. The preemptive focus that characterizes counter-terrorism financing regulations, along with the legal practices that are adopted by the courts during the types of cases discussed in this article, allows for this timeless and violent vision of the Levant to persist – and to impact legal knowledge and actions. As a result, it doesn’t really matter what the defendants knew, as Syria and Iraq have become ‘legally stripped’ of their particular and situated histories through the adoption of a general conclusion about the area. It is the court in the Netherlands that decides on ‘knowledge of the past that counts’, not the materials or knowledge from the Levant that are allowed to speak for themselves (Fabian, 2014: 11). This subsection therefore illustrates the importance of bringing out empirical forms of temporality: It is only through the material manifestation of the money and what a particular transaction represents that a court could determine whether or not a transaction would contribute to terrorist activities. Yet now this materialization of both the money itself and the knowledge around the transaction are dismissed in favour of a general and universal conclusion about the Levant. In other words, the court closes off a multiplicity of futures by reconstructing past events in the Middle East, erasing particular forms of knowledge and highlighting others. This ‘master narrative on time’ (Hutchings, 2008: 159) that the court constructs obfuscates alternative accounts from Syria and Iraq, but furthermore draws our attention to the broader societal consequences of such a narrow construction of future terrorist violence. Building on this, in the following subsection, I elaborate further on what is at stake in this particular construction of the court.

What counts as violence?

In the previous subsection, I argued that sorting time can function to erase the particularities of a situation or give meaning to a financial transaction as facilitating violence. This is confirmed by statements made by the prosecution during multiple terrorism-financing cases to the effect that ‘terrorism financing might seem more obvious if you send weapons. But with sending money, even for daily sustenance, foreign fighters are supported and enabled to continue their destruction and human rights violations in the region.’ ¹³ The previous subsection elaborated on the discussions during terrorism-financing trials involving the situation in the Levant. In the last of the three empirical subsections of this article, I move beyond court preparations and sittings to examine the broader political and societal concerns around preemptive terrorism-financing prosecutions. In studying the prevention of terrorist violence, it is important to pay attention to other forms of slower, more structural or systematic violence that are embedded in preemptive politics. As De Goede and De Graaf (2013) point out, the law’s temporal focus on future violence is not merely a legal practice. It intertwines with political action and policy that allow for certain temporal sorting practices to remain largely unchallenged. According to De Goede and De Graaf (2013: 319), the temporal focus on ‘the unknown and uncertain future’ can be understood as a recent trend whereby courts ‘show significant willingness to entertain the likely and possible effects of inchoate plots, and to deliver sentencing on the basis of potential violence’. This is illustrated in all of the previously described court cases. By centring the embodied and lived temporalities of being suspected and prosecuted, we can take up De Goede and De Graaf’s proposal to link this recent trend to political decisionmaking and forms of security governance.

In the court judgments examined, the understanding of violence is usually focused on the violence that ISIS or other terrorist organizations inflict on Syrians, Iraqis or Europeans in their attacks. This is indeed an important form of violence to which the courts must pay attention. Nevertheless, there seems to be little attention to what possible harm this broad and timeless connection between financial transactions and violence might produce. In an interview with a defence lawyer, I learned about

Someone who transferred a few hundred Euros to a brother, while nobody told him that this was prohibited ... . [Y]ears later, he is arrested, spent three days in prison, at risk of losing his job. All because they want to send a message to this community that this is against the law. (Interview 3)

This particular case eventually came before the Rotterdam District Court in October 2019. Here, a young man had transferred €200 to his brother who had travelled to Syria at the start of 2013. Shortly after his brother’s departure, the defendant went with his family to an information and support event organized by the police for friends and families of foreign fighters. In May 2014, the defendant made a one-time transfer of money to his brother, for which he was convicted on 11 November 2019. In the motivation for the verdict, the court explained that, by breaking the regulations prohibiting the financing of terrorism, ‘the defendant contributed to the further destabilization and insecurity in Syria’. The defendant was given a suspended prison sentence of two months, despite the fact that the exact whereabouts of his brother were unknown at the time of the transfer and only revealed later. ¹⁴ More importantly, the defendant was never told that transferring money would result in criminal liability, not even during the information events organized by the police at which he was explicitly encouraged to keep in contact with his brother. The court acknowledged this in its reflections on the verdict but saw no other option than to sentence the defendant considering the severity of the offence. ¹⁵

The violence of being convicted for a terrorist offence, however, is not discussed in the judgment at all. This is remarkable given the serious consequences such a conviction can have. In this case, the prison sentence was suspended, but that does not mean that there were no consequences for the defendant. Individuals convicted of a financial crime, particularly in the case of terrorism-related offences, risk being excluded from the formal banking sector. Banks have an obligation to monitor and screen their customers for potential financial risks, and have a responsibility to prevent abuse of their financial services. As a result, banks are reluctant to serve individuals with a high-risk profile and may choose to terminate their relationship with such a client (Amicelle, 2011). Indeed, it has happened that individuals suspected or accused of terrorism financing have received notification from their banks that the latter’s provision of financial services would be discontinued. ¹⁶ Being excluded from the financial system is a grave form of violence that makes modern life in most European cities impossible (De Goede, 2003; Malakoutikhah, 2020).

The invocation of the risk of future violence as a justification for convictions is not simply a legal question, as terrorism-financing cases are also used to send a political message to a specific public on what constitutes undesirable behaviour. This is not just the experience of defence lawyers in such cases, but also a deliberate practice by the courts and prosecution. A 2017 court ruling from The Hague District Court reads:

Not only does the defendant need to understand that his actions are punishable, others should be clear on the fact that the financial support of a (beloved) individual who resides in Syria as a jihadist is not an excuse to break the law. ¹⁷

Furthermore, in relation to its zero-tolerance approach, the prosecutor argued that:

It is also to send a signal that it is not acceptable to transfer money to organizations or to individuals who joined these organizations. And we don’t accept that from our democratic rule of law. (Interview 4) ¹⁸

Further consequences of a terrorist conviction might include being forced to resign from one’s place of employment and the social difficulties involved with having a criminal record. ¹⁹ Defendants have complained about such matters during their court sittings and emphasized the severe consequences for their families if they were to lose their job as result of a conviction, as well as the larger social stigma they would have to face. In one case, the defence emphasized the risk of losing Dutch nationality for their defendants. ²⁰ Yet all such considerations are rarely mentioned in the judgments of the court, which usually focus on the strict legal interpretation of violence that might occur as a result of the financial support. In legal developments related to the prosecution of individuals for alleged terrorism financing, in which considerable emphasis is placed on the deterrence of any future financial or material contribution to terrorist violence, the links between the concrete, structural and empirical forms of violence that defendants suffer are obfuscated. By tracing empirical accounts of temporality, however, paying attention to how individual defendants invoke temporal claims about their future or their past knowledge, we observe attempts at resisting the dominant way in which terrorist violence is constructed by the court. In other words, the criminalization of and prosecutions for terrorism financing enact various forms of violence, including the targeting of communities and broader, structural disruptions of everyday life. Law is not separate from this, but actively shapes understandings of violence through determining its scope and temporality. In paying empirical attention to the relation between legal practices of sorting time and the definition of violence, we can understand how the court closes off routes to alternative futures, thereby sustaining forms of structural violence. Nevertheless, law has the opportunity to sort and include temporality in a different way, leaving space for alternative ways of knowing or predicting the future (McNeilly, 2019). This subsection has therefore emphasized what is at stake in terrorism-financing proceedings, highlighting how empirical accounts of time can offer forms of legal resistance that create space for the inclusion of multiple pasts, presents and futures (McNeilly, 2019).

Conclusion

In this article, I have tried to further the debates on preemption by illustrating how legal and security practices together produce and sort time. The ‘ticking timebomb’ scenario that has shaped many security practices is increasingly finding its way into legal practices, challenging the image of law as a slow and reactive process. Rather than approaching legal and security temporalities as incompatible, I proposed studying the sorting of time as an intertwined practice. Adopting an empirical and material approach to time, I have shown how law and security are intertwined in their practice of governing, deciding and ordering events in time. Building on the rich and important literature in both international relations and socio-legal studies, this article questioned the imagination of temporal events that is dominant in court prosecutions for terrorism financing, and examined how the structuring of time influences the legal and political interpretation of violence. In doing so, it illustrated empirically how security temporalities and legal temporalities not only create frictions, but can together produce a workable, yet narrow and specific understanding of threat and violence that is used to secure convictions. The sorting of time and interpretation of violence discussed here is not simply the outcome of court cases, but represents a judicio-political choice to prosecute and convict despite the many concerns raised in this article.

In addition, taking its inspiration from postcolonial contributions on time, this article emphasized the importance of studying empirical accounts of temporality, including silenced or ignored representations. The empirical accounts of temporality described in this article show that alternative narratives on violence are not absent but are in many ways ignored in comparison with narratives on the threat of possible attacks. Making visible these accounts, this article uses temporal sorting as a way of unpacking broader legal and political consequences of preemptive counter-terrorism regulations. The empirical sections illustrate how many legal materials and arguments brought before the court resist a singular preemptive understanding of terrorist violence or terrorist activities in Syria and Iraq. By paying explicit attention to the erasure or the absence of material evidence, we can understand a lot more about the personal, specific and unique circumstances of the transactions and defendants in terrorism-financing court cases than by following the dominant timelines reproduced in court judgments.

These empirical contributions bring a new perspective to the debates in critical security studies on preemption and counter-terrorism measures. Combining theoretical insights from socio-legal studies on sorting and producing time with postcolonial insights on lived temporalities and resistance to anticipatory knowledge on future violence complicates our understanding of preemptive legal practices and moves beyond the focus of an imagined catastrophic future. In practice, whether lived temporalities that seek to resist these definitions of future terrorist violence can change the line of sentencing in courts – only time will tell.