The law and politics of funding armed groups in Syria: how states (fail to) counter terrorism

Abstract

This article examines the political and legal controversies around a counterterrorism programme conducted by the Dutch government to support the so-called moderate groups in Syria between 2015 and 2018. The controversies centred around the question how the Dutch government was able to define and support armed moderate groups in Syria and distinguish them from terrorist organizations. The objective of the article is to take up this question and unpack how the Dutch Ministry of Foreign Affairs constructed and justified their definition of material support for moderate groups deployed in this programme, against existing definitions of terrorism funding and terrorist groups embedded in European counterterrorism financing regulations. Connecting to the debates around materiality in both International Relations and International Law, this article follows the material-semiotic practices through which definitions of terrorism come into being. The empirical analysis draws on interviews with legal professionals, policy documents and court transcripts, and provides a detailed overview of how multiple and even conflicting definitions of terrorism and terrorism financing are constructed by the Dutch state. Taking this interdisciplinary approach to materiality and based on the empirical analysis, I propose that this controversy on defining terrorism and terrorism financing reflects a Eurocentric assumption about the knowledge and responsibilities of the Western state in the War on Terror. While the empirics are grounded in the Dutch context, my analysis is relevant for multiple European countries who engaged in similar operations between 2015 and 2018, as well as for future counterterrorism efforts targeting terrorist groups.

Introduction

Between 2015 and 2018, the Dutch government engaged in a secret operation in Syria. The objective of the operation was to select moderate armed groups, and to provide them with material support to strengthen their position vis-à-vis terrorist groups and the Syrian regime. To avoid a violation under international law, the Dutch government decided that the material had to be non-lethal: meaning only materials could be distributed that have a humanitarian or civilian nature and that were not to be used in combat. This secret Non-Lethal Assistance programme (hereafter NLA-programme) triggered the interest of two Dutch investigative journalists who wondered which groups were considered ‘moderate’ by the Dutch government, and what kind of materials could be classified as non-lethal and were distributed as part of the programme. After months of research, the journalists published their findings in a series of news articles, showing that clear guidelines to distinguish ‘moderate’ from ‘terrorist’ groups were lacking throughout the duration of the programme (Dahhan and Holdert, 2018). More importantly, they revealed that some of the ‘moderate groups’ that received material support had been involved in war crimes and even cooperated with terrorist organizations (Dahhan and Holdert, 2018).

To make matters worse, some of the groups that received material support by the Dutch Ministry of Foreign Affairs under the NLA programme had in fact been subject of legal debates during terrorism trials, to determine their status as terrorist organization. The Ministry of Justice, which brought these cases before the Dutch court, argued that it was their legal obligation under European law to actively prosecute citizens for terrorist activities such as terrorism financing and other (preparatory) terrorist acts. During the court cases following the NLA controversy, it became clear that there was a disagreement within the Dutch government not only on how to define a terrorist organization, for example, around armed groups such as Ahrar Al-Sham, but also on defining the funding and support of such organizations. Therefore, Dutch individual citizens have been prosecuted for terrorism financing of a terrorist organization, while engaging in quite similar practices as to the Ministry of Foreign Affairs’ NLA programme, which supposedly operated within the boundaries of the law. Despite the legal and political controversy around whether the Dutch government had indirectly supported terrorist groups and transgressed other international norms, the Dutch government did not afterwards come to a comprehensive definition of terrorist organizations. It was simply stated by the Dutch government that ‘The Ministry of Foreign Affairs and the Ministry of Justice have different strategies and definitions’ ¹ . There was no further explanation on what these different strategies were, or how the ministries arrived at competing definitions of terrorist groups and disagreed on the legality of supporting these groups with materials or money. A special committee researching the NLA programme wrote in their report that ‘the committee did not find any evidence that terrorist organizations were supported through the program’ (NLA Committee, 2022: 69). Yet the report indicated that the committee did not compare the supported groups against the definitions handled by the public prosecution and the Ministry of Justice. Again the question, that is central in this paper, is avoided: How did the Ministry of Foreign Affairs construct and justify its definition of material support for moderate groups deployed in this program, in comparison with existing definitions of terrorism funding and terrorist groups embedded in European counterterrorism financing regulations which are used to prosecute individuals by Dutch courts?

To answer the central question of this paper, I discuss how the Dutch government defined armed groups and terrorist organizations and funded moderate groups within the NLA programme, against the Dutch zero-tolerance policy of the Ministry of Justice to prosecute citizens who engage in terrorism financing. I do so by examining the role of materiality in the legal classifications of terrorism support in both the NLA programme (by the Ministry of Foreign Affairs) and the prosecutions of terrorism financing in court cases (by the Ministry of Justice). Using a material approach I empirically show how the materials in this controversy, such as blankets, money, vehicles, food, are not at all static objects. Instead, their classification under international law is fluid and invokes different responsibilities, purposes and political consequences. Doing so, this article contributes to the growing debate in International Relations (IR) on materiality and pushes these debates by connecting to insights from international law and post-colonial literature on the War on Terror.

My proposal to study the material classifications in the War on Terror by the Dutch Ministry of Foreign Affairs and the Ministry of Justice is of broader relevance to IR. First, tracing how materials such as financial transactions, blankets or vehicles become classified as suspicious, humanitarian or terrorist underscores how material objects have an important impact on political and legal decision-making in the War on Terror. Following Jonathan Luke Austin’s (2015) argument on studying materiality and classifications, I propose that such classifications are not self-evident but require ‘mundane material allies’ to uphold these classifications. This paper, therefore, takes a closer look at what kind of materials were part of the programme, and to challenge their binary classifications into legal/illegal and terrorist/moderate. Unpacking this Dutch controversy around counterterrorism interventions by the Ministry of Foreign Affairs provides relevant insights for other European countries who have faced similar controversies around their foreign policy of supporting warring parties in Syria such as the United Kingdom (The Guardian, 3 December 2017) and France (Al-Jazeera, 10 September 2021).

Second, this material approach fits into the interdisciplinary ambitions of IR scholars to understand how law and politics are entangled (see also Aalberts, 2018; Kahraman et al., 2020; Sanders, 2018). The arguments of the Dutch government to define terrorist groups and support thereof enact international law, United Nations (UN) sanction lists, security knowledge on the Middle East and European counterterrorism financing regulations. ² . Similarly, both the court cases and the NLA programme evolved around the question of the legality of material support to armed groups. Yet, counterterrorism court cases have only received limited attention in IR, despite the fact that courts function as important sites where political disputes are settled and definitions are challenged or confirmed (Kahraman et al., 2020). My analysis of not only foreign policy but also court proceedings provides a unique empirical example of how law and politics interact in defining terrorist groups and terrorist support. Following the materials in this controversy, the paper illustrates that the materials that are part of this controversy connect to broader contestations on the law and politics of countering terrorism. My analysis of its material dimension furthermore tells us how this transnational controversy is informed and shaped by post-colonial logics of suspicion, threat and legal responsibility in the War on Terror (see also Anwar and İşleyen, 2022).

In addition to a focus on materiality, I propose that a post-colonial framework will strengthen the analysis of defining terrorism, by shifting our attention to the role and responsibilities of both the state and its citizens in the War on Terror. The controversy around the NLA programme illustrates that the unstable and fluid definition of terrorism complicates the assumed role of the state to know, calculate and prevent terrorist activities (Hasian, 2016). Yet, what I will show in this paper is not only how the NLA controversy addresses the responsibility of the state to define terrorism. My analysis furthermore brings out how individual citizens are increasingly monitored and held accountable for suspicious activities connected to possible terrorist threats. Unpacking counterterrorism trials in the Netherlands, and tracing the legal argumentation around material objects, I show how the Ministry of Justice constructs a ‘suspicious Other’ using Orientalist tropes concerning (funding of) terrorist groups. As such, this article advances the current debates in IR on the War on Terror, by illustrating how a material approach can bring new possibilities for critical insights about the legal and political responsibilities of both states and citizens.

This paper is structured in the following way. The theoretical part consists of two sections. The first section places the controversy around material support in a longer trajectory of law, pre-emptive security and risk since 9/11. I briefly discuss the political context of countering terrorism financing and connect this context to the post-colonial literature on terrorism to develop a better understanding of the orientalist assumptions in defining terrorism. In the second section, I elaborate on the growing literature in both IR and international law on the materiality of law and politics. I concur that focusing on materiality allows an interdisciplinary analysis that combines law and politics in the examination of the empirics. Furthermore, focusing on the multiplicity of the classification of the materiality is connected to questions of justice and accountability.

In the empirical part of the paper, I trace how the Dutch NLA programme relates to the Dutch zero-tolerance policy of criminalizing and prosecuting terrorism financing, how definitions were constructed, enacted and contradicted. This part is also divided into two sections. In the first section, I focus on the materials as object of analysis and investigate how the Dutch government justified the transfer of material goods to groups in Syria. I then compare this to the current legislation around material support for terrorist organizations and study the controversies following from the two practices. In the second section, I build on the discussion of material practices, and examine how the definition of ‘moderate’ and ‘terrorist’ groups was produced by both the Ministry of Foreign Affairs and the Ministry of Justice. In the conclusion, I tie these empirical findings back to the main question and elaborate on to better understand how states navigate law and politics in the War on Terror.

An interdisciplinary approach to studying materiality

Law, security and risk: an interdisciplinary debate in IR

The questions in this article relate to a longer debate within IR that addresses the relationship between law and pre-emptive security in the so-called War on Terror. Counterterrorism measures are shaped by pre-emptive security logics where speculation and calculations of potentially violent futures form the basis for counterterrorism interventions (De Goede, 2012). The logic behind countering terrorism financing can be summarized as follows: terrorists require money for their attacks and therefore regulations should make it impossible for terrorists to access and use their resources (Mitsilegas and Gilmore, 2007). This pre-emptive logic has led to novel legal responsibilities for states in Europe. Under European law, countries are obliged to monitor financial transactions, and to criminalize and prosecute terrorism financing. ³ The Netherlands, like other European countries, has a quite extensive legal framework to monitor, criminalize and prosecute material support to terrorist organizations. In the past 5 years, most of these legal efforts were to stop travels or money flows from Europe to Syria or Iraq, aiming to prevent any form of support for ‘jihadist organizations’ and the funding of so-called foreign fighters. The counterterrorism regulations under European law criminalize a wide range of activities, such as fundraising, donating, transferring or facilitating funds, even if it only indirectly funds terrorist groups (De Goede, 2018). As a result, European countries have increasingly prosecuted individual citizens for transferring money and goods, and even other preparatory acts far in advance of terrorist violence (De Goede, 2018).

As De Goede (2008) has argued, ‘criminalizing terrorist groupings, terrorist financing and terrorist facilitation fulfills a precautionary function that enables the pursuit and punishment of suspects who have not engaged in any violent act but may (or may not) do so in the future’ (p. 170). Following this pre-emptive logic of intervening in anticipation of a terrorist act, the law criminalizes not the direct transferring of money and goods, but all activities that provide or collect funds. This temporal focus on precaution and anticipatory knowledge has altered the relationship between IR and international law through its focus on an uncertain and speculative future (De Goede, 2012, 2015; Kessler and Werner, 2008; Opitz and Telmann, 2015). Kessler and Werner (2008), for example, argue that state practices in the War on Terror produce new categories of ‘suspected terrorists’ that challenge existing legal categories of combatants and civilians. They conclude that ‘suspected terrorists are targeted, not because of their formal status as such, but rather because they are believed to be guilty of terrorist attacks in the past and believed to constitute a mortal threat in the future’ (p. 205).

Yet, as Sullivan (2020) argues, it is unproductive to study pre-emptive security logics as only overriding or eroding legal principles. Rather he proposes that ‘pre-emptive security dynamics modulate and rearrange conventional legal practices into novel amalgams and recombinations that demand empirical attention’ (Sullivan, 2020: 26). One of the issues that demands this empirical attention is how the notion of suspicion or potential threat is not a neutral or a-political assessment, but historically a deeply racialized practice that finds its origins in colonial governance.

A post-colonial approach to defining terrorism

The War on Terror is not only a contemporary fight against terrorist organizations, but also a form of governance informed by post-colonial understandings of international law and security (Parashar, 2018; Phillips, 2019). Hasian (2016: 13), in his work on terrorism financing cases, argues that the legal frameworks used for contemporary anti-terrorist statutes resemble some of the former colonial ways of governing and restricting ‘the financing of the subaltern “Other”’. Monitoring financial transactions or other forms of material support was an imperial governing tool to counter anti-colonial resistance in, for example, British India and Algeria (Hasian, 2016; McCulloch and Pickering, 2005). European colonial powers such as Britain and France, but also Russian imperial circles, have a longer history with monitoring and disrupting financial infrastructures (Hasian, 2016; McCulloch and Pickering, 2005). Findings its origins in these colonial forms of governance, controlling and monitoring financial behaviour have been a continuous practice of disciplining political dissidents and targeting rebellious or ‘suspect communities’ (McCulloch and Pickering, 2005; Warde, 2007). France, for example, actively monitored both Algerian and French citizens sympathetic to the anti-colonial struggle to disrupt money flows from France to Algeria (Evans, 2012). As Parashar (2018: 110) argues, these examples illustrate how ‘the terrorism imaginaries continue to normalize the Euro-centric nation-state, its vulnerabilities and violence as a universal model of political existence’.

A Euroentric view on what counts as valid and righteous forms of violence, and which violence is deemed evil and irrational, has subsequently informed which subjectivities are considered suspicious or dangerous (Abu-Bakare, 2020; Atia, 2007). Several scholars have pointed out that the War on Terror has led to an inscription of threat and suspicion onto Muslim and Arab communities. These racialized constructs of threat and suspicion produce a stereotypical and racialized Other that is predisposed to future violence, subsequently allowing for increased surveillance and policing in particular communities (Abu-Bakare, 2020; Marei et al., 2018). Moreover, Abu-Bakare (2022: 231) illustrates how knowledge production in counterterrorism practices continues to be shaped by racist and imperialist structures, where ‘white peoples are all-knowing and the formerly colonized remain entirely knowable’. This racialized construction of the suspicious Other has been previously studied in the context of United Kingdom’s PREVENT strategy, where the assessment of potential terrorist threat is inscribed with Islamophobic and racist assumptions on what constitutes terrorism (Winter et al., 2022).

More specifically on countering terrorism financing, Mona Atia (2007), Marouf Hasian (2016) and Marieke De Goede (2012) illustrate how in contemporary counterterrorism financing practices, financial behaviour by Muslims is ‘othered’ through financial surveillance and counterterrorism measures. Tracking and prosecuting financial behaviour is supposedly done through a bureaucratic system, where a rule-based approach is often used to identify possible terrorism financiers. In contrast to military interventions, tracking financial behaviour is considered an uncontroversial and managerial task (Warde, 2007). The logic behind this framework assumed a shared and clear definition of what constitutes terrorism and the funding thereof, uncontested expertise that can be used to distinguish terrorism funding from other financial flows, and objective indicators that can track financial footprints of terrorist networks (De Goede, 2012; also Warde, 2007).

Despite the a-political and technical image, countering terrorism financing is a deeply politicized policy that categorizes people and transactions as ‘normal’, or ‘risky’ and ‘suspicious’ fitting into a longer colonial trajectory (Hasian, 2016). Atia (2007) argues that ‘Discourses of terrorism finance produce the Other by fabricating a clear separation between the shadowy world of Islamic entities and the legitimate one of Western finance’ (p. 461). For example, Islamic charities and hawala networks, compared with other non-profit organizations or money transmitting offices, have disproportionately suffered under the counterterrorism financing regulations. Warde (2007) describes how it were mainly rich Arabs, Islamic charities and hawala bankers who came to be associated with funding terrorist organizations or activities. These strong stereotypical images of the usual suspects of terrorism financing dominated the imagination of practitioners who found themselves at the forefront of these financial security practices (Hasian, 2016; De Goede, 2012; Warde, 2007). Using this post-colonial framework reminds us that knowledge about terrorist violence or groups is not only unruly or fluid (De Goede, 2018) but that it ‘depend upon, even as they contribute to, the persistence of a “racially ordered world”’ (Abu and Bakare, 2022). In this article, I illustrate that the controversy on what counts as terrorism and financing cannot be explained as a separation of courts (law) and foreign policy (politics). Rather it is informed by an Orientalist understanding of legal responsibility in the War on Terror that produces citizens as the ‘suspicious Others’. The key to understanding these legal responsibilities, I argue, is through the analysis of the classification of the materials that are at the heart of this controversy.

A material approach to International Relations and Law

Scholars in IR have increasingly appreciated and focused on the study of materiality in world politics. Inspired by science and technology studies (STS), recent scholarship has produced new insights into how world politics are mediated through and by material artefacts and non-human actors. As Jonathan Luke Austin (2015) shows, the socio-political construction of binary categories such as ‘civilian’ and ‘barbaric’ is not only a semiotic practice, but requires ‘mundane material allies’ (Austin, 2015: 49). In his analysis, it becomes evident that torture regimes in both the United States and Argentina cannot be understood without the material agency of airplanes, military bases and bodies. By tracing these materials, Austin breaks down the binary discursive construction of a ‘civilized’ United States and ‘barbaric’ Argentina, showing how ‘becoming civilized’ is dependent on access to, and deployment of, particular advanced materials and technologies that can obfuscate violence and legal responsibility. Austin’s analysis does not only attend to the agency of materials in world politics, but it also provides the tools to unpack existing binary categories that are used to justify legal and political interventions in the War on Terror. Focusing on political and legal controversies, such as the Dutch case of the NLA programme and definitions of ‘terrorist groups’, I follow the call to examine the materiality in political controversies in IR (Austin, 2015; İşleyen, 2021; Walters, 2014).

Within international legal scholarship, a similar growing debate has developed around the importance of materiality in legal research. In particular, socio-legal scholars have illustrated the relevance of studying legal objects. Jessie Hohmann (2018: 35) argues that by studying objects, we come to realize that international law does not only exist in textbooks or as a top-down regime agreed upon by heads of states, but that ‘material objects carry international law with them into the neighborhoods, living rooms, even bodies, of individuals’. International law, therefore, manifests itself into materials that we encounter on a daily basis such as regulated medicines (Cloatre, 2008), passports (Dehm, 2018) and many other daily materials (Cloatre, 2018). Simultaneously, legal practices can also inscribe legal meaning and relevance to objects. For example, when a knife becomes part of a murder trial and is classified as evidence (Latour, 2010), or when weapons become classified as illegal or inhumane (Suchman, 2020).

It is through this interdisciplinary and material lens that we can grapple how the pre-emptive security logics around countering terrorism increasingly find their way into international law. At first glance, (international) law, therefore, might seem a more technical exercise of lawyers who capture events and objects into static legal categories, but a material approach reveals that this is not the case. Only legal knowledge is often not sufficient to make objects legally relevant. Classifying suspicious transactions in the fight against terrorism, for example, requires not only legal knowledge about the relevant regulatory frameworks, but also security knowledge about terrorist threats (De Goede, 2018). The object, namely the financial transaction, is entangled with multiple forms of knowledge that require an interdisciplinary understanding of both law and politics (Sullivan, 2020). In other words, materials such as transactions or blankets are not inherently legal or suspicious, but they are pre-emptively inscribed with a terrorist meaning through a combination of legal and discursive practices (De Goede, 2015, 2018) that subsequently justify drone attacks (Kessler and Werner, 2008) or backlisting (Sullivan, 2020). An interdisciplinary material approach invites us to move beyond juxtapositions of pre-emptive security logics and static legal categories in the War on Terror (Sanders, 2018). By centering on these objects that are at the heart of the NLA controversy, we gain a deeper understanding of how law and politics are entangled in the production of classifications of terrorism. In the empirical analysis, I use this interdisciplinary approach to the materials to show how fluid and contested their classifications are under international law. Seemingly static or self-evident categories such as ‘terrorist’ and ‘moderate’ or ‘legal’ and ‘illegal’ become fundamentally unsettled if we follow the material and discursive practices that give meaning to these categories. I propose that it is in this moment of fluidity, where settled norms and politics are challenged, that we get a more nuanced and detailed view on how political decisions are made and justified in the War on Terror.

Yet, this paper also pushes the current literature on materiality. I argue that aside from analysing how semiotic-material practices construct classifications in defining terrorism, we need to account for the post-colonial assumptions ‘binding the fields and disciplines of security and surveillance analyses, peace and conflict studies, terrorism research’ (Puar, 2017: xxi). I, therefore, connect to the post-colonial literature on terrorism, to better understand the post-colonial legacies that inform the roles and responsibilities of both the state and its citizens in the current War on Terror. In sum, a material approach can not only illuminate the law and politics of countering terrorism, but furthermore enable us to develop a post-colonial critique to these practices attuning us to questions of accountability and justice.

Part 1: the material nature of the support

Material support for ‘moderate groups’ in the NLA programme

In this section, I examine what kind of materials were distributed to armed groups as part of the NLA programme, and how the enactment of these materials relates to the legal framework criminalizing material support for terrorist organizations. According to the Ministry of Foreign Affairs, the non-lethal character of the materials means that the Netherlands does not violate the non-intervention principle under international law, because non-lethal assistance does not meet the criteria of the Nicaragua case. In this case, the International Court of Justice ruled that it is against international law to supply non-state actors in a third state with a ‘mere supply of funds’. ⁴ According to this ruling, funding armed groups in an outside territory constitutes a breach of the non-intervention principle of international law. The objects part of the NLA programme was described by the Dutch Ministry of Foreign Affairs as non-lethal materials ⁵ , which means that the materials have a ‘civilian nature’ rather than a military nature. The NLA committee (2022: 35) lists the following objects:

1. Food packages;

2. Materials for border control;

3. Multi-use vehicle support (such as pick-up trucks);

4. First-response medical support (aid kits);

5. Clothes (including uniforms);

6. Material and training field hospital;

7. Electronics (laptops, communication materials, satellite phones);

8. Mobile bakery;

9. Flour (for baking);

10. Waste devices.

These materials, including ambiguous objects such as vehicles, medicine kits and phones, were classified as legal and non-lethal through particular material and discursive practices. First, the Ministry of Foreign Affairs argued that these materials did not require a permit as laid out in European Union (EU) regulations on the transport of military and dual-use equipment. This was indeed an amendment of the EU to previous regulations that placed economic sanctions and restrictions on the export of equipment to Syria. ⁶ These regulations on military equipment do not rule out possible military use of objects such as laptops or pick-up trucks; nevertheless, the argument of their non-lethal and therefore civilian character was accepted as one of the main arguments for the legality of the programme (NLA Committee, 2022). Second, the civilian use of the materials was clearly communicated to the receiving parties in Syria. The government described this as ‘The equipment is provided under the condition that it is only used for transportation, frontline improvement and logistical communication support’. ⁷ Third, the NLA programme furthermore included site visits and continuous monitoring of the groups to ensure that the material was not to be used in combat. ⁸ The relevance of supporting ‘moderate groups’ with this assistance was framed as a counterterrorism measure: non-lethal assistance could support moderate groups in their fight against terrorist organizations such as IS. This programme empowered moderate groups to protect and aid civilians caught in a fighting zone, allowing it to fall within the scope of international law and EU regulations. Yet, within international law, the non-intervention principle does not know an exception based on the nature of the materials or the gravity of potential violence (Ruys, 2014).

Examining the actual use of the material, researchers concluded that vehicles, communication devices and clothes were used in combat and during armed clashes (NLA committee, 2022). As such, regardless of their political classification through EU regulations, or their legal classification under the non-intervention principle, the multiplicity of the material comes forward when studying how they are deployed in practice. Yet, it is not the actual use of the materials that is considered relevant, but rather a pre-emptive risk assessment of the materials. When asked how the Dutch government ensured that the materials would not be used in combat, the minster declared that although it was part of the agreement, a 100 percent guarantee on this matter was impossible. It would be naive to assume full control over materials and commanders in a complex war zone, according to the minister. ⁹ Furthermore, despite the awareness that pick-up trucks and phones might be used for combat or terrorist purposes, this was dismissed as a calculated risk. Similarly, the risk that the materials might fall in the wrong hands is described by the Ministry of Foreign Affairs as a matter of fact and not a matter of concern. ¹⁰ Yet, research shows that materials ‘fell in the wrong hands’ in at least three occasions (NLA Committee, 2022, Appendix M: 82). When interrogated on the occasions that indeed terrorist organizations confiscated some of the materials, the minister simply replies that ‘it happened’. The minister states that

A group receiving NLA support had to withdraw during fights with IS and left behind blankets and mats. We cannot reconstruct whether they have been confiscated by IS or residents of the area. At other occasions it was confirmed that food packages and a mobile bakery have been used by extremists. ¹¹

In sum, in the context of the NLA programme, the legal framework and political decision-making on permissible violence are not separate from the material dimension of the programme. By classifying the materials as civilian under EU law, and by emphasizing the communication with the receiving groups, the Ministry of Foreign Affairs justifies the NLA programme as operating within the boundaries of international law. Such classification of the material supposes an inherent nature of material: they are either civilian/military or legal/illegal. The possibility that non-lethal materials, especially logistic devices and transportation vehicles, could be deployed for military purposes was purposefully obfuscated by the Minister through this binary approach. ¹² Yet, the analysis by unpacking the material and discursive practices shows the inconstancies as well as the resistance of materials in such binary categories. The practices illustrate that many materials occupy a legal grey zone: where civil materials can easily be used in combat, or when materials fall into the wrong hands. In this NLA programme, material objects played a key role in determining what is considered legitimate violence as well as acceptable forms of pre-emptive risks that can be taken in complex combat situations involving terrorist groups. At the same time, the state’s material and discursive practices that lead to such classifications are portrayed as detached from the ‘terrorist landscape’, and this rational calculation of threat remains very legal and distanced from what happens with the material support on the ground. Hasian furthermore concludes that ‘from a postcolonial perspective, all of this talk of “financing terrorism”’ that raises the spectre of the existential dangers (. . .) hides the way that nation-states can also commit counter-terrorism and are part of these landscapes’ (Hasian, 2016: 34). Indeed, if we take a closer look at the Dutch’ own counterterrorism financing laws, we see a very different approach to terrorist support and risk.

Material support defined during terrorism financing court cases

Under current terrorism financing legislation in the Netherlands, material support to terrorist organizations is defined in a very broad manner. According to the law, any form of material support, both directly and indirectly facilitating terrorist activities, is punishable by law. It does not matter whether the money sent actually contributed to a terrorist plan, or attack, or whether it was sent with an active intention to support a terrorist in Syria. Rather, the law criminalizes transactions with a reasonable chance of supporting terrorist organizations. ¹³ The amount of money is irrelevant for criminal liability, as well as the frequency of the transactions, or the actual spending of the money.

As a result, the Dutch court has convicted individuals for transactions to (suspected) foreign fighters in Syria, including transfers of €200 ¹⁴ ; €90. ¹⁵ Despite the arguments of the defence lawyers that this amount of money is insufficient to buy arms or other combat materials, the logic of the Ministry of Justice is that even with small amounts, one can contribute to the continuation of the terrorist activities in the area. Furthermore, prosecutors successfully defend the argument in court that with every transaction made to Syria, terrorist organizations can claim part of the money through taxes or extortion, resulting in indirect financing of terrorist organizations. ¹⁶ Due to the very broad interpretation of the law, individuals have furthermore been convicted for sending money to their children who left the Netherlands to fight in Syria or to foreign fighters who wanted to return to Europe and effectively had already left the organization they were aligned with. ¹⁷ In these cases, the parents were often open about the reasons for sending money, and even discussed with their children that the money was sent out of humanitarian reasons. The money was supposed to support their children, to pay for medical treatment ¹⁸ or to get out of terrorist territory. ¹⁹ Such enactments of the material are supported with evidence of online conversations on social media and photos. Therefore, during court cases, the defendants inscribe the materials or the money with a benign and civilian character, similar to the Ministry of Foreign Affairs during the NLA programme.

Nevertheless, the Ministry of Justice, through the public prosecutor, argues that even supporting fighters by preparing meals, sending money to relatives for personal purposes or otherwise enabling terrorist to continue their practices results in a shared criminal liability for perpetuating terrorism. According to this logic, the material form is irrelevant for criminal liability under current counterterrorism legislation. Literally, any object can be used as a weapon or as a continuation of the armed fight of terrorist organizations, even if it concerns humanitarian products. For example, in a recent court case, a Dutch citizen was prosecuted for terrorism financing after providing baby care products in Raqqa, Syria. The prosecutor argued that his support enabled IS-families to continue fighting because it relieved the financial pressure of the households. ²⁰ It follows the broader vision of the Ministry of Justice that humanitarian aid is a risky business that can easily be abused by terrorists. The public prosecutor even recommends that ‘humanitarian aid always goes through organized channels such as the Red Cross or the Red Crescent. You never know what others might do with it’. ²¹

What this analysis shows is that the enactments of the materials as innocent in both terrorism financing court cases and by the Ministry of Foreign Affairs are quite comparable. Both the defendants of terrorism financing and the Ministry of Foreign Affairs stress the communication of the transfer as a form of support and emphasize their intention and explicit communication that the material is not to be for terrorist purposes. Nevertheless, in the terrorism financing court cases mentioned above, the court often confirmed the arguments of the prosecution that it is not relevant what the intended use of the materials was, but whether the defendants accepted the risk that the money or objects might be facilitating terrorist activities. Especially, between 2017 and 2019, the Dutch courts followed a quite orientalist logic that all foreign fighters in Syria were related to IS or other terrorist organizations, therefore making all financial support to these recipient subject of terrorism financing. In this logic, it is the sustenance of the body of the foreign fighter in a specific space that becomes seen as a terrorist act, regardless of what the concrete activities of the foreign fighter were, what the money was used for, or whether the fighter was actually aligned with a terrorist organization.

Therefore, while the NLA programme is justified through the enactment of materials as civilian, where a possible terrorist function of the materials is accepted as a potential risk, terrorism financing law operates in a reverse fashion: the risk of potential terrorist activities weighs heavier than the actual use of the material. As such, the risk of terrorist threat and permissible violence is not a self-evident or standardized assessment, but materials play an important role in legal argumentations on what counts as acceptable risk. During prosecutions of individual citizens, for example, materials are inscribed with a pre-emptive logics of suspicion (De Goede, 2018) about an entire region in the Middle-East. Nevertheless, the analysis shows that the Ministry of Foreign Affairs is allowed to take these risky decisions and to supply armed organizations with materials based on trust and communal agreements. If citizens engage in transferring money or goods out of personal or humanitarian reasons, this is considered suspicious and constitutes a terrorist threat. Citizens should turn to their governments or established (Western) institutions for such activities.

In sum, the analysis shows that material objects mediate the definition of risk and pre-emption through a combination of political and legal practices, with various outcomes. In both the court cases and the NLA programme, it is not the actual deployment of the materials that is used for legal classification, but the future potential of the material that determines legality, permissible risks and accountability. These legal classifications show a differentiation between the responsibilities of individual citizens and the government when engaging in supporting groups or individuals in Syria. Individual citizens are actively discouraged through criminal prosecutions to engage in risky transactions, or send humanitarian goods through community initiatives. The government, on the other hand, enacts a fluid understanding of material support, where risk and trust form the basis of their counterterrorism operation. Even if the materials do end up in the hands of terrorist organizations, as was the case in 2018, this is considered an ‘acceptable risk’. The potential violence that results from this risk is not discussed. As such, these legal classifications say very little about the materials themselves, but have great impact on legal and political accountability. It is only in studying the actual material practices that we see the ambiguity and multiplicity of the materials. In the following section, I focus on the second component of the NLA programme and counterterrorism trials: the definition of terrorist organizations and activities.

Part 2: distinguishing terrorists from rebels

In the previous section, I showed how material support is not inherently legal or illegal, humanitarian or violent, but that it is not only the deployment of multiple forms of knowledge, including security knowledge on Syria and IS, but also legal knowledge on international law or EU regulations that inscribe meaning into the materials. Yet, this inscription of (a terrorist) meaning is inherently connected to a broader discussion on how to define terrorism. Defining and categorizing terrorist groups and terrorist activities is a long-standing and continuing debate without consensus, extensively explored in IR scholarship (Philips, 2019; Schuurman, 2019; Stampnitzky, 2013). The aim of this paper is therefore not to normatively assess the status of the groups supported by the Dutch government, but to explore how the government decided on definitions, frontlines and fighting parties and how this raises tensions with domestic counterterrorism prosecutions.

How to separate moderate and terrorist groups?

One of the main pressing controversies after the publication of the NLA programme concerned the vetting procedure of the Dutch government that defined the status of the armed groups receiving support from the NLA programme. This controversy around the vetting procedure was the result of scandals that terrorist organizations benefitted from, or confiscated some of the materials delivered by the Dutch government (Nieuwsuur, 10 September 2018). It contradicts the arguments of the government that the programme adhered to strict procedures that prevented material support for terrorist organizations.

While the minister of Foreign Affairs refused to answer questions based on arguments of secrecy, it was made public that there was no official definition of terrorism used by the Ministry of Foreign Affairs to differentiate between the various armed groups (Dahhan and Holdert, 2018; NLA Committee, 2022). One of the special commanders, Nicholaas van Dam, argued in an interview that a list of criteria would ‘not work on the ground’ and that it was a matter of trust and using your own connections to make this distinction (Dahhan and Holdert, 2018; NLA Committee, 2022). Broadly speaking, the Ministry of Foreign Affairs was following the Riyadh declaration and the parties who committed to this agreement as a guideline for selecting eligible recipients. ²² The Riyadh declaration in 2015 was organized by the UN to build a stronger coalition between opposition parties. The parties agreed on striving for a democratic Syria without discrimination on the basis of sect, ethnicity, religion or gender (Lund, 2015). Officially, five criteria or instructions were given to select the ‘moderate’ opposition for material support. These criteria included (1) a responsibility not to cooperate with extremist groups (yet again without a comprehensive definition of ‘extremist’), (2) adhering to international humanitarian law and international human rights law, (3) striving for an inclusive political solution for Syria’s future, (4) accepting a political solution as the remedy for the conflict and (5) willing to play a role in such inclusive political solution. The NLA Committee concluded, however, that conflicting definitions of ‘extremist groups’ surfaced in the documents produced by the Ministry of Foreign Affairs from recognized terrorist groups such as IS to ‘salafi/jihadi groups’. Using a narrow definition, almost no groups would qualify for the programme, while using a broader definition would increase the risk of cooperating with terrorist organizations (NLA Committee, 2022: 60). The Dutch Minister of Foreign Affairs refused to give more detailed information or the names of the groups partaking in the NLA programme out of fear that they would become a target for cooperating with the West.

Partly through mistakenly revealed documents and partly through investigative journalism, some of the names of the organizations that received Dutch material support were revealed to the public such as shohada al Yarmouk and Sultan Murad brigade. ²³ These organizations were supposed to be distinguishable from terrorist organizations in their aims and goals for a future Syria, as well as in their practices of conducting violence. In 2015, several armed organizations declared an alliance under the name Fatah Haleb with the aim of conquering the Syrian city of Aleppo from government forces. In this alliance, the Dutch-supported group Jabhat al Shamiya, and later in 2016, the Sultan Murad brigade, cooperated with groups such as Ahrar al-Sham, which is listed as a terrorist organization by the Dutch Ministry of Justice ²⁴ a decision confirmed through Dutch jurisprudence. ²⁵ The alliance Fatah Haleb, including and especially the Sultan Murad brigade, has been accused of committing war crimes in the period between February and April 2016, after armed attacks deliberately targeted civilian neighbourhoods such as Sheikh Maqsood. Amnesty International (2016) reported on this in a press release on 13 May 2016, yet one of the commanders indicated himself that the Sultan Murad brigade continued to receive support between 2016 and 2018 from the Dutch government (Nieuwsuur, 10 September 2018). When confronted with critical questions on this alliance, and the continued support of the government, the Minister reacted that

In the complex and fluid situation in Syria, hundreds of fighting parties were active in combat. They were no homogenous and their composition was changing rapidly. Even Ahrar alSham and Levant Front were not homogenous but consisted of various subgroups (. . .) groups originated in particular situations and locations, and collaborated with extremist groups. This happened from a military pragmatic standpoint, coordinating attacks could better resist attacks from ISIS or the regime. This does not mean that the extremist ideology was copied by the moderate groups. ²⁶

While these definitions and nuanced understandings of terrorist organizations are not unreasonable, they are in stark contrast with the definitions used by the Ministry of Justice. This Ministry is responsible for the criminal investigation and prosecution of terrorism offences, including participation in a terrorist organization, and the funding of terrorist activities.

Becoming a terrorist organization: the case of Ahrar Al-Sham and Jabhat al-Shamiya

As described above, the NLA programme differentiated between moderate groups and extremist groups. In doing so, they acknowledged the complexity of the situation on the ground, shifting alliances and strategic cooperation between various parties. At the same time, the NLA support to armed groups operating in various alliances also led to complicated situations in Dutch court rooms where, at that point, the general legal consensus was that one could not travel to Syria or Iraq without residing in geographies dominated by terrorist organizations and thus supporting said organizations. ²⁷ This generalizing view fits into a long trajectory of rendering the Middle-East as ungovernable and dangerous, and continues to dominate the legal perception of Syria and Iraq. In 2019, two Dutch citizens were charged with multiple terrorism offences, including joining Ahrar Al-Sham. The Ministry of Justice considers this organization a terrorist group based on its actions and ideology. Ahrar Al-Sham, according to the public prosecutor, has expressed its ambition to fight against the regime, to establish an Islamic State to replace the current regime and has fought with other terrorist organizations. Furthermore, their armed activities meet the legal criteria of a terrorist organization, including religious motivations for their violence and the rejection of the Riyadh declarations by some members of the leadership. This argument has been accepted by the Dutch court, who understands the organization as a terrorist organization. ²⁸

The Ministry of Foreign Affairs, however, follows a different standard, where Ahrar Al-Sham is not recognized as a terrorist organization. Initially, in 2015, the Ministry considered the organization a ‘moderate’ organization because it signed the aforementioned Riyadh declaration. ²⁹ Ahrar Al-Sham did not receive direct funding through the NLA programme, yet it cannot be excluded that they cooperated with groups that did receive support. ³⁰ When a defendant appeared in front of the District Court in Rotterdam on charges of joining a terrorist organization, the judges decided that Ahrar Al-Sham was in fact a terrorist organization, contradicting the policy of the Dutch Ministry of Foreign Affairs. ³¹ Even after this conviction by the Rotterdam District Court, the Ministry of Foreign Affairs did not change its classification of the organization, arguing that the group was not on any terrorist lists. To explain this controversy, the public prosecutor argued that the Ministry of Justice is primarily focused on assessing organizations according to Dutch law. The Ministry of Foreign Affairs, however, continues to follow the UN Sanction lists, on which Ahrar Al-Sham is not listed as a terrorist organization. This is, according to the public prosecutor, because the Ministry of Foreign Affairs makes a political decision about classifying terrorist groups, while the Ministry of Justice simply applies the law to classify armed groups in Syria. As such, the difference between the definitions of terrorist organizations is justified through a separation of law and politics.

The contradictions in definitions became even more pressing, as in another 2019 case, a defendant was charged with joining Jabhat al-Shamiya, an organization that probably received direct funding from the Dutch government. The lawyer of the defendant claimed that the court should dismiss the case as this organization was directly supported through the NLA programme, arguing that ‘When the government supports certain groups, this results in a legitimation of these groups. The state should provide an example, and citizens should be able to trust the government’s actions’. ³² The minister would not confirm whether Jabhat al-Shamiya received funding under the NLA programme, leaving a grey zone that complicated judicial assessment of the organization. ³³ To matter worse, in retrospect, the NLA committee wrongly concluded that Jabhat al-Shamiya was not considered a terrorist organization by the court. Even after rectification, the researchers of the committee did not change their conclusion that no terrorist organizations were supported through the programme (NLA Committee, 2022, appendix M). They follow the logic of both the Ministry of Foreign Affairs and the Ministry of Justice concluding that terrorism investigations and prosecutions are not dependent on whether they involve groups part of the NLA programme. In an interview with a public prosecutor, after I asked about this contradictory situation, they replied, ‘I can only say that there is a difference between the Ministry of Foreign Affairs and the Ministry of Justice’. ³⁴ It was clear that follow-up questions from my side would not be answered. Again, an artificial boundary is created between the domain of law, where the practices and knowledges of classifying terrorism are differentiated from the domain of politics.

A post-colonial understanding of countering terrorism

I propose that this explanation that bifurcates law and politics can benefit from a post-colonial perspective on counterterrorism practices and knowledge. The discrepancy between the various enactments of terrorist groups and support is not a novel development or a disruption of otherwise coherent counterterrorism practices. Rather, it is a continuation of a Eurocentric counterterrorism effort that centres the state as the only rational and knowledgeable actor in the fight against terrorism (Hasian, 2016; Parashar, 2018). The post-colonial element here is relevant, as the expert knowledge produced by the Ministry of Justice on terrorism financing portrays Syria as geographically ruled by terrorist groups where all financial support to foreign fighters will lead to the strengthening of the Islamic state. In this rationale, the body of a foreign fighter is considered a weapon in itself, and the suppliers of this money equally implicated in terrorist activities that could occur in the future. The suppliers of this money in court cases are mainly individual citizens, who do not necessarily share a terrorist ideology, but share other characteristics with foreign fighters such as race and religion. This logic links to what Atia (2008) argues as ‘Despite similarities, in terms of transparency and concealment of origin, financial flows associated with Islam are constructed as illegitimate, different from the spaces of legitimate offshore finances or other nontransparent components of Western finance’ (p. 461). As a result, these risky individual Muslim citizens become subjects of counterterrorism efforts by the criminal justice system and held legally accountable for their risky decisions, while government officials are not held to the same standards.

By focusing on the material aspect of these counterterrorism decisions, we can unpack how risk and terrorist threat are assessed differently by the Ministry of Justice prosecuting Dutch citizens and the Ministry of Foreign Affairs. Tracing the material and discursive practices of the Ministry of Foreign Affairs in the NLA programme, we find legal arguments that all transactions adhered to international law and cannot be classified as terrorist activities. However, when we trace these materials in court, we find obvious similarities in knowledge and practices preceding the transactions conducted by Dutch citizens. As argued throughout the empirical analysis, materials play a fundamental role in amplifying or obfuscating potential (terrorist) violence and subsequent legal consequences of such potential violence. Through this fluid understanding of the capacities and possibilities of the materials, the state is constructed as a rational actor that can balance risk, opportunity and political action in countering terrorism. Yet, when citizens engage in similar type of decisions, such as trusting recipients of the money, classifying armed groups or engaging in humanitarian practices, they are considered ill-equipped and even suspicious or as a threat. As a result, citizens become suspected and even convicted of terrorist offences, even if their actions correspond with the knowledge and decisions of the Ministry of Foreign Affairs. Rather than confining the decisions of the Ministry of Foreign Affairs to the realm of politics, and the decisions by the Ministry of Justice or the prosecution to the realm of law, as proposed by the public prosecutor, a post-colonial understanding shifts our analysis to the relation between citizens and the state. Therefore, we see a continuation of the Eurocentric approach developed in the colonial era, with the difference that it is not the colonial subject that is deemed irrational and violent, but the state’s own citizens that are suspected of posing a terrorist threat.

Conclusion

A long-standing interdisciplinary scholarship has provided valuable insights into how European states produce, bend and violate international norms in the fight against terrorism, criticizing how governments enact and produce various definitions of terrorist organizations to distinguish them from other armed groups (Philips, 2019; Scheppele, 2010; Stampnitzky, 2013). This article has provided a detailed analysis of how terrorism definitions are negotiated and legitimized within a state. Furthermore, the framework of ‘politics of exception’ which have dominated the IR literature on the War on Terror might explain why interventions in and material support to territories characterized by terrorist control operate in a ‘lawless’ space (Nylen, 2020). My analysis shows a more complex image where this space is not lawless, but where the law and legal accountability is contested for some (the government) but not for others (individual citizens).

In this paper, I have examined in detail how terrorism financing and groups are defined through various practices by the Dutch government and in counterterrorism regulations. The close examination of the practices has led to two important insights pushing the literature in IR. The first contribution is a conceptual furthering of the literature on materiality in IR. In this paper, I deployed a material approach to map the different methods used by the Ministry of Foreign Affairs, the Ministry of Justice, Dutch citizens and the Dutch courts to define terrorist organization and terrorist support. While such classifications are deployed to capture materials in a particular legal regime, the analysis shows how the materials themselves are neither legal nor illegal, civilian nor military, yet become classified in a binary way through a set of material and discursive practices. This paper illustrates that all materials are legally ambiguous (at best) and that this ambiguity shows different enactments of violence and legal responsibility. As such, financial transactions are deemed illegal through constructions of future possible violence committed by foreign fighters while the sending of materials such as pick-up trucks or satellite phones is deemed legal, and their potential violent use is either completely dismissed or neglected. In both the court cases and the NLA programme, it is not the actual use of the materials that determines classification, but a pre-emptive and speculative inscription of what the materials might or should do.

Furthermore, by analysing in-depth the materials that are at the core of this controversy, I illustrate how seemingly mundane materials, including pick-up trucks, money transfers, but also terrorist lists, become subjected to multiple interpretations that blur the distinction between law and politics (Sanders, 2018; Sullivan, 2020). The paper, therefore, shows that European governments do not simply apply or follow law, but actively create new legal constellations and interpretations on terrorist organizations, support and violence. As such, the paper moves beyond pointing to the dichotomy or the entanglement of law and politics. Focusing on ‘mundane material allies’ (Austin, 2015), the empirics show how legal and political accountability is not self-evident but it has to be constructed, negotiated and attributed. What is at stake, therefore, as I show in this paper, is when these practices occur without any legal accountability or reflection on justice.

The second contribution focusses on how to understand the role and responsibilities of states and citizens in the War on Terror. The role of the state in countering terrorism has been explained as occupying a space of exception to fight ‘an exceptional war’ that had to be fought using extra-legal measures and interventions (Blakeley and Raphael, 2017; Nylen, 2020). Yet, my analysis offers another explanation which points at the post-colonial legacies of suspicion and threat, and how this impacts knowledge about terrorism. The broad and vague scope of counterterrorism laws, in combination with the state’s inability to formulate coherent definitions on terrorist and moderate groups, has led to an absurd situation. While previously the state was considered the main actor responsible for knowing and countering terrorism, my empirics illustrate that the state’s knowledge is a patchwork of different standards and methods. By analysing not only foreign policy but also a domestic terrorism trials, I unpack how there is contestation within the Dutch governments over what counts as terrorism. As a result of this contestation, citizens cannot rely on the state’s methods, interpretations and definitions of terrorism. Yet, they are also not considered rational actors capable of making risk assessments on terrorist groups or financial transactions, but rather find themselves as the new subjects of counterterrorism regulations and measures. These competing definitions are not only domestic decisions, but, as I show in this article, are connected to and justified by international regulations, sanction lists and EU standards. Vice versa, the legal decisions around terrorist groups and terrorism financing confirm the legitimacy of these sanction lists and sediment political interpretations of international law. This allows a group like Ahraar al Sham to be perceived by German and Dutch courts as a terrorist organization but not by the French courts (Weill, 2018), while the United States and EU refuse to include them in any terrorist list. Fundamentally, this analysis raises new questions about (the absence of) legal and political responsibility in defining terrorism, and the legitimacy of strict counterterrorism measures that target individual citizens for preparatory acts of terrorism and terrorism financing.