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Militant Islam Monitor > Articles > Hofstad Group - Wrong decision by Dutch appeals court

Hofstad Group - Wrong decision by Dutch appeals court

January 31, 2008

By Emerson Vermaat

The Dutch Appeals Court's decision on Wednesday January 23, 2008, that the so-called "Hofstad Group" is not a terrorist organization, is wrong. The Appeals Court from The Hague overruled a decision taken by the lower Rotterdam Court in 2006 which said that the Hofstad Group was indeed a terrorist organization whose members were inciting to hatred.

The Hofstad Group consisted of a group Dutch-Moroccans and one native Dutch who frequently met in the small two-room Amsterdam house of Mohammed Bouyeri, another Dutch Moroccan who was convicted to life after he killed Dutch columnist and filmmaker Theo van Gogh. On March 30, 2006, the Rotterdam Court convicted 8 members of the Hofstad Group, namely Jason Theodore James Walters, Ismail Akhnikh, Ahmed Hamdi (Bouyeri's house mate), Mohammed Fahmi Boughaba, Nouriddin El Fatmi, Mohammed El Morabit, Zine Labidine Aouraghe and Youssef Ettoumi. All of them appealed except Zine Labidine Aouraghe.

After Theo van Gogh was killed on November 2, 2004, Dutch police arrested most members of the Hofstad Group. In several reports the Dutch Intelligence and Security Service AIVD described the group as "a jihadist network around the charismatic preacher Redouan (or Bassem) Al-Issa," a failed asylum-seeker from Syria. Two members of the group, Jason Walters and Ismail Akhnikh, had visited terrorist training camps in Pakistan in the summer of 2003, the AIVD reported in October 2003. Another key member of the group, Samir Azzouz, was already in pre-trial detention since June 2004. There were indications that he was involved in an armed robbery on a branch of the Edah-supermarket in Rotterdam, and during a thorough house search police discovered a lot of highly interesting material – there were strong suspicions Azzouz was planning a terrorist attack.

Azzouz was a close friend of Jason Walters' and Ismail Akhnikh's, all of whom are believed to be hard core members of the group. (In its reports the AIVD invariably speaks of a "network" or "group"; for legal reasons prosecutors prefer the term "terrorist organization" – because the term "organization" is used in article 140a of the Dutch penal code; the Council Frame Work Decision of June 13, 2002, on combatting terrorism refers to "a terrorist group.")

Throwing a hand grenade at Arrest Team (AT)

Walters and Akninkh were also close friends. On September 1, 2005, Walters moved into 92 Antheunis Street, The Hague, and in October Ismail Akhnikh decided to stay with him for some time. Both did not know that the apartment was bugged by the AIVD. After the killing of Theo van Gogh, Jason Walters and Ismail Akhnikh praised Bouyeri for what he had done. ("We are the friends of Mohammed B., who killed Theo van Gogh...") They also issued death threats against Ayaan Hirsi Ali and Geert Wilders, two members of parliament who had been very vocal on Islam. (Hirsi Ali and Theo van Gogh had made the film "Submission" which Bouyeri regarded as an insult to Islam.) The AIVD monitored all these conversations, the so-called "OVC-conversations" (OVC = "Opname Vertrouwelijke Communicatie" or "Recording confidential communication").

In court defense lawyers said the AIVD tapping had been illegal. It was, they said, an infringement on the privacy of those who were inside the apartment, it was contrary to the articles of the European Convention on Human Rights (ECHR). They also said that certain recorded passages were very difficult to understand. The lower Rotterdam court overruled many of these objections and quoted the most incriminating parts of the OVC-conversations.

After November 2, 2004, both Jason Walters and Ismail Aknikh realized that sooner or later the police would arrive and arrest them. They talked about other friends from the Hofstad Group who had been arrested. They barricaded the frontdoor and discussed what to do when the police's Arrest Team (AT) would arrive. Both knew there were four grenades in a cupboard drawer in the apartment and both intended to use them. On November 3, 2004, Ismail said: "Look, were are going to lock the door. Because when they enter, bang! Then you are awake, you need five to ten seconds to come to your senses, they work in a systematic manner... And then one (of us) does this: bang! you see?"

One day later, on November 4, 2004, Akhnikh instructed Jason again saying: "You wait till they enter and then you throw one, yes?" Akhnikh then prayed in Arab to Allah, saying: "Oh Allah, if this act is for your's sake only, accept us then as martyrs, oh Allah, let us die as martyrs..." Akhnikh asked Zakaria Taybi, a friend from the Hofstad Group who was also present, if he, too, wanted to die. Jason and Taybi said: "Amen!" Some 18 minutes later Akhnikh said in Moroccan Arab: "For when they arrive there, he (= Jason) will wake us up immediately, he will then throw that (thing) like this and close the door."[1]

In the early morning of November 10, 2004 the Arrest Team arrived at the frontdoor of Jason's Antheunis Street apartment. Crying "Police, police!" they tried to force the barricaded door, and only managed break it partly open. They saw Jason Walters who cried "Allah Akhbar!" ("Allah is great!") In a well timed move Walters then threw a grenade in their direction and five policemen got injured. (Experts believe Jason had learned how to throw grenades during his training in a terrorist training camp in Pakistan.)[2] It was a M91 grenade from former Yugoslavia containing 2500 small metal particles which can cause serious harm to a lot of people. (In the case of the five injured AT policemen it was very difficult to remove all the particles from their bodies and some particles still have not been removed.) Afterwards both Ismail Akhnikh and Jason Walters said "Allah Akhbar!" believing and hoping they had killed one or two policemen. A member of the Arrest Team saw a man inside the apartment (Walters or Akhnikh) holding another grenade in his hand. This happened after the AT member had helped one of his wounded colleagues. He had returned to the frontdoor to tell two other colleagues to withdraw immediately.[3] Shortly before they were finally arrested Walters and Akhnikh pocketed the three other hand grenades. When it looked as if Walters wanted to reach for a weapon, a sharpshooter aimed at him fired. Walters then surrendered.

In court Jason Walters and Ismail Akhnikh and their defense lawyers flatly denied that throwing a grenade had been part of a prearranged plan. Jason said, it had been a spontaneous act. He also said that Akhnikh had nothing to with it. The Rotterdam Court followed the prosecutor and quoted from those parts of OVC conversations where Akhnikh instructed Walters "to throw one" as soon as the police would force their way in. Although Walters was the one who threw the hand grenade, Akhnikh was also responsible, the court said, because he had instructed Jason what to do in case the police would arrive. Both rejoiced afterwards over what they had done, saying it was something we (plural) had done. Jason called his brother Jermaine saying: "They have arrived, man. They have broken into the door. We killed two of them, you know. We threw a hand grenade at them... We are going to kill them... I am happy." Akhnikh called his mother saying: "Mum, pray for me... the infidels burst into our house, and we killed one of them."[4] The Rotterdam court sentenced Jason to fifteen years in prison and Akhnikh got thirteen years.

The Appeals Court from The Hague upheld Jason Walter's verdict of 15 years but reduced Ismail Akhnikh's sentence to just fifteen months. The Appeals Court did not see Akhnikh as an accessory to the crime of throwing a grenade to the police. Therefore, he was acquitted as assessory in an attempt to murder (Medepleger aan een poging tot moord). The Appeals Court argued that those parts of the OVC conversations about "throwing one" are "so unclear and difficult to follow (weergave OVC is onduidelijk) that there is just not sufficient evidence to convict Akhnikh. This ruling of the Appeals Court does not seem to be very consistent with the same verdict which says on the OVC conversations: "They are reliable, except in those cases where the interpeters have indicated that the text is unclear." Those passages referring to "throwing one" and "we threw a hand grenade," have not been contested by the prosecutors, the Rotterdam Court and the sworn interpreters who listened to the tapes. It was Ismail Akhnikh and his lawyer Ronald van der Horst who said these passages of the OVC conversations were difficult to follow.

Akhnikh strongly denied he had disscussed with Jason Walters the possibility of "throwing one" (a hand grenade) at the police. "I never told Jason that he should throw a grenade," Akhnikh said. "I was shocked when I saw that he could do such a thing so rashly."[5] He lamely claimed they never talked about "throwing one," no, they were talking about "closing the dividing door (tussendeur) so that there would be enough time to escape." "Throwing" (gooien) means "closing the door" (deur dichtgooien). And "we", Akhnikh and his defense lawyer Ronald van der Horst claimed, does not refer to two persons. "We" refers to "one man."[6] This way of speaking is very common among Moroccans. Walters, too, denied he had ever discussed the possibility of throwing a grenade with Akhnikh, emphasizing it was a spontaneous act.

Appeals Court biased towards the arguments presented by defense lawyers?

The Appeals Court appeared to be susceptible to this kind of arguments. During the first part of the trial some defense lawyers were irritated by the way presiding judge L.A..J.M. van Dijk confronted the suspects in the courtroom with their own religious convictions. She asked a lot of sometimes rather strange questions on strictly religious matters. On one occasion defense lawyer Victor Koppe from the Böhler, Franken and Koppe Law firm dictated a question to presiding judge Van Dijk who complied immediately. On another occasion the same lawyer officially challenged the presiding judge over her decesion to hear a key witness – Malika Chaabi – behind closed doors. This led to a serious delay in the court proceedings, and there were clearly signs of slight panic among the three judges of the Appeals Court.

Koppe's action failed, though, but after this incident presiding judge Van Dijk appeared to be even more susceptible to arguments presented by the defense lawyers. (A number of Koppe's and Böhler's final plea arguments were incorporated in the verdict.) Indeed, this verdict fully reflected many of the arguments presented by the defense lawyers and largely overruled a very balanced and good verdict by the lower Rotterdam Court. Britta Böhler was also conspicuous by her absence, but she later informed the press that she was "very enthousiastic" about the verdict. Mr. Koppe was in Cambodia to prepare the defense of a former Khmer Rouge leader who would soon appear before a special tribunal.

Terrorist intent and terrorist organization

There were two legal issues where the verdicts of the lower Rotterdam Court (March 2006) and the Appeals Court from The Hague (January 2008) did contradict each other: the conviction of Jason Walters to fifteen years and Jason's crime to throw a grenade not being regarded as an act of terrorism. It was here that the prosecutors disagreed strongly with the Rotterdam Court's decision and decided to appeal. They pointed out that both Jason Walters and Ismail Akhnikh had had "terrorist intent" when they possessed four hand grenades and when Jason threw one of these grenades at the police. Therefore, they demanded even higher sentences.

According to Dutch penal law an essential element of "terrorist intent" is "instilling fear into the population or part of the population" (Article 83a Dutch penal code). In my view, the prosecutors correctly argued that this is precisely what both Jason Walters and Ismail Akhnikh intended to achieve when a grenade was being thrown at the police. They knew they still possessed three other grenades which could also be used. Shortly after one of the four grenades had been thrown, people heard both of them shout the following threatening words: "We have 20 kilo of explosives and we'll blow up the whole street." Akhnikh called his mother saying: "We have bombs. We are going to blow up this house and the whole neighborhood."[7]

No doubt, these threats were inspired by what happened in Leganés, Spain, just seven months before. Seven dangerous terrorists involved in the March 11 attacks in Madrid blew up their apartment as the special Spanish anti-terrorist unit tried to enter it. Damage to the area was substantial and one Spanish police officer was killed.

Walters and Akhnikh also intended to instill fear into the population when they showed a big newspaper heading saying "It is war." The newspaper heading from "Algemeen Dagblad" was shown from behind the front window of their apartment. The siege by the Dutch anti-terrorist unit BBE was a big media event and Walters and Akhnikh were quite aware of this.

The Appeals Court fully disagreed with the Rotterdam Court on the question whether the Hofstad Group should be seen as a "terrorist organization" or not. Article 140a (terrorist organization) of the Dutch penal code is linked to Article 140 (criminal organization), and consequently, the criteria of Article 140 can also be applied to Article 140a. What is needed for a criminal or terrorist organization is a identifiable core, the intent to commit crimes, a more or less loose structure and a certain amount of durability.[8]

An editorial comment on the decision by the Appeals Court in the Dutch newspaper "NRC Handelsblad" said that you need "a solid organization" (hechte organisatie) before you can speak about a terrorist organization.[9] This is not correct. Article 140a of the Dutch penenal code was introduced in August 2004. It was based on Article 2 of the European Union Council Frame Work Decision of June 13, 2002, on combatting terrorism which says: "(A) terrorist group shall mean a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist offences. ‘Structured group' shall mean a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure."[10]

This allows for some flexibility with regards to structure and the roles of group members. (The council decision refers to "group," the Dutch penal code to "organization," and AIVD reports refer to "networks of radical Muslims.") This is also what the Dutch Supreme Court (Hoge Raad) says. In its verdict of March 30, 2006, the Rotterdam Court ruled that the Hofstad Group was a criminal and terrorist organization in conformity with the criteria of Articles 140 and 140a of the Dutch penal code. But the Appeals Court ruled otherwise saying there was only "a network," there was not enough "organizational substance" (onvoldoende organisatorische substantie) to call this network a terrorist organization. Meetings in Bouyeri's house were spontaneous, nobody was forced to come, there was no fixed pattern.[11]

The Appeals Court simply believed nearly everything what the suspects and their defense lawyers were saying. They had a vested interest in portraying the Hofstad Group an an "innocent group of friends," who were "persecuted" because they were Muslims. (In the words of Victor Koppe and Britta Böhler: "A loose group of boys from the neigborhood, acquaintances and friends who met each other in Bouyeri's house by chance").[12]

Reality was quite different, though. There was the jihadist MSN Group "MuwahiddinDeWareMuslims" (MuwahideenTheTrueMuslims). There was a core group consisting of five persons (Mohammed Bouyeri, Ismail Akhnikh, Jason Walters, Samir Azzouz and Nouriddin El Fatmi). All of them were committed to violent jihad, a crime under Dutch law.[13] There were frequent meetings in Bouyeri's house, there were instructors or spiritual leaders such as Mohammed Bouyeri ("Abu Zubair") and Bassem Al-Issa ("Abu Khalid"). Pressure was put on moderate Muslims to grow a beard and not to wear "western clothes."

Death threats against those who speak out

Key witnesses such as Malika Chaabi, Sara Pastoors, Abdellatif El Morabet and possibly Nawal Hammoudi received serious threats saying consequences will be dire for them should they continue to incriminate members of the Hofstad Group. (Many witnesses were also threatened and intimidated before and during the trial against Willem Holleeder, a notorious criminal in the Netherlands, so this not something unique. It often happens when members of criminal or terrorist organizations are on trial.)

Abdellatif El Morabet, a close friend of Mohammed Bouyeri's who had known him for many years, told the police quite a lot of things about group members watching horror videos of beheadings. He said there was an anti-western atmosphere in Bouyeri's house, there was a sectarian leader (Bassem Al-Issa) who tried to brainwash others, telling these young men to become martyrs. Bouyeri himself enjoyed watching jihadist videos, Abedellatif said.[14] What he said was partly confirmed by others. Yet, when he appeared before the Appeals Court, he refused to confirm his previous statements. Afterwards he told a Dutch journalist he had received death threats. If he were to speak out again, something might happen to him: "What happened to Theo van Gogh will also happen to you."[15]

Another friend of Bouyeri's, Mohammed El Bousklaoui, told the Rotterdam Court he had watched a video in Bouyeri's house showing beheadings. Bouyeri appeared to play a leading role, he read from texts from a laptop. "The infidels were cursed," El Bousklaoui said.[16] But he was afraid to go into details and denied that the topic of "holy war" (jhad) had been discussed there. (But another friend of Bouyeri's, Zakaria Taybi, told the examening jugde that Al-Issa did talk about jihad, and that he saw "gruesome videos" in Bouyeri's house; and Bouyeri's house mate Ahmed Hamdi said that if somebody was taken hostage in Iraq, and beheading videos were being shown, then they sometimes watched it.)[17]

The problem with El Bousklaoui was that a number jihadist cassettes was found in his car and the messages on these cassettes called for bomb attacks and the destruction of the West. But El Bousklaoui claimed these cassettes belonged to somebody else.

Another frequent visitor of Bouyeri's house, Nadir Adarraf, told the Rotterdam Court that he could not speak out freely about other terror suspects.

Judge Van Belzen: "Why are you afraid?"

Adarraf: "If you say something which is wrong (in their view), something might happen to me."

Judge Van Belzen: "When a Muslim becomes an apostate, he must be killed. Is that what you are worried about?"

Adarraf: "Yes, I heard that if you do or don't do certain things, they'll proclaim you are an infidel."[18]

Different from the Appeals Court the Rotterdam Court usually asked the right kind of questions. Adarraf also possessed incriminating material, such as a CD-rom with documents, photos and footage of terrorist attacks, the killing of hostages, terrorist training camps and Osama bin Laden. On his computer troubling documents on the violent jihad and the rejection of the democratic order were found. Adarraf himself claimed he was not a Muslim radical, and that some other group members were pushing him to become one. They pressed him to wear a jellaba (traditional Moroccan dress popular among Muslim radicals in Holland) and to grow a beard. When judge Van Belzen asked Adarraf who was pushing him in this direction, Adarraf said he did not want to mention any names. "It is about my own security."[19] (Adarraf was later acquitted by the Rotterdam court.)

In October 2004 Mohammed Bouyeri led the "Islamic marriage ceremony" for Nouriddin El Fatmi and Malika Chaabi, a teen-age girl who had ran away from home. Chaabi later told the police that Mohammed El Morabit was also present at the ceremony. There were about ten young men in Bouyeri's house. El Fatmi ("Fouad") talked about the need to kill the infidels, Malika said. Later that night, El Fatmi showed her terrible jihadist videos. When they were driving in a car they saw a supermarket and El Fatmi began to talk about how to blow it up with a car loaded with explosives. And if you cut someone's throat, do it only partly because that will cause more suffering to the victim, El Fatmi told the teen-age girl who fell for his charisma and charm. (When El Fatmi was arrested in June 2005, he carried a bag with a fully loaded and deadly "Agram 2000" submachine gun - 800 rounds per minute - and an MP-3 Mediaplayer showing jihadist footage of beheadings and Osama bin Laden, a man he deeply admired.[20])

There were many shocking details in Malika's story, which have been partly confirmed by others. Mohammed El Morabit, for example, confirmed he had been present at the "marriage cerremony" in Bouyeri's house. And Mohammed El Bousklaoui told the Appeals Court in May 2007: "I was there when Bouyeri led the ceremony of the wedding between Malika Chaabi and Nouriddin El Fatmi."[21] Malika Chaabi could not possibly have made it all up.

After Malika had talked to the police she received a threat letter saying that if she would not change her testimony Allah would "break her back."[22]

Young Malika was so terrified that she even refused to call this letter a threat letter which it clearly was. She refused to say anything in the court room (Rotterdam Court, December 5, 2005). When the Appeals Court wanted to hear her as a witness in 2007, the judges decided to conduct the proceedings behind closed doors. I saw her twice, and there was clearly fear in her eyes. Defense lawyers claimed Malika had been put under pressure by her family and the first prosecutor, Koos Plooy (2005), to say incriminating things about other terror suspects. When Plooy was heard as a witness by the Appeals Court, he denied this. Chaabi did not retract the essence of her story. The Dutch Supreme Court ruled in 1994 that statements to the police during the pre-trial investigations, are not necessarily contrary to Article 6 EHRM ("Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal estblished by law... Everyone has the ... right to examine or have examined witnesses against him and to obtain attendance and examination of witnesses on his behalf...")[23] As to the facts of Malika's statement to the police, these have been partly confirmed by others. She and El Fatmi had indeed been married Islamically by Mohammed Bouyeri, she had indeed been at his house where there were about ten persons present.

As to El Fatmi, other witnesses, too, said El Fatmi often talked about jihadist issues, "Takfir" (literally: excommunication; denouncing moderate Muslims as apostates who should be killed). Sara Pastoors, for example, said that in the beginning "they" talk a lot about "Tawheed," later they talk about "Takfir," "Taghut" (=following idols) and jihad. "Nouriddin sent me a lot of beheading films."[24] He often asked her to pass the information he sent her (books, films) on to others. (Beheading films are recruitment tools.) When he appeared before the Appeals Court, El Fatmi invariably claimed he was a moderate Muslim who opposed violence and terrorism. (Presiding judge Van Dijk failed to confront him with the jihadist films and photos which had been found on his MP-3 player when he was arrested in June 2005; the issue of the "Agram 2000" submachine gun will play an important role in a separate appeals trial.)

A very strong indication that the Hofstad Group was more than just a group of friends or "boys from the neighborhood" was an important instruction given by Mohammed Bouyeri himself. Shortly before he killed Theo van Gogh, Bouyeri had given an envelope to his friend Rachid Bousana. On the same envelope Bouyeri had written the name of "Zakarya" (=Zakaria Taybi). Bousana was asked to pass this envelope on to Zakaria if something would happen to Bouyeri. Inside the envelope were an USB stick and a letter. The USB stick contained a number of documents written and selected by Mohammed Bouyeri. One of these documents was Bouyeri's "Open Letter to the People of the Netherlands" in which he announced terrorist attacks. In his letter to Zakaria Taybi ("Dear brother") Bouyeri said that he wanted him to distribute the texts on the USB stick. But with respect to the "Open letter to the Dutch people," he wrote, "this is something on which you brothers (plural) will have decide yourselves. If you publish this letter, it will cause problems to you brothers and sisters (I think!). I advise you (plural: "jullie") to convene a shura (=consultative meeting) with a view to discussing the advantages and disadvantages of publishing the letter."[25]

For Bouyeri, the group meeting in his house was much more than just a group of friends or "boys from the neighborhood." For him it was a group of young Muslims who were committed to distributing texts advocating terrorist attacks, violence and jihad. The words "shura" and "you brothers" are a clear indication that this group did indeed have a real structural basis. It may have been a loose structure, but it was certainly not so loose as to justify the conclusion that the criteria of Article 140a have not been met.

Incriminating documents and images

That the Hofstad Group was anything but an innocent group of friends praticising their religious faith was also clear from the incriminating documents found on their computers, as well as lots of jihadist videos and audio cassettes found in private homes or cars. Many of these videos are extremely sickening. A high ranking police investigator from the KLPD in Driebergen, the Netherlands, told me he was shocked by what he saw: "You will just not believe what you see."[26] Most Hofstad Group members had Bouyeri's "Open letters" and other violent writings such as "To catch a wolf" on their computers. On the computers of several group members police investigators found the film "Ons terrorisme" ("Our terrorism") showing footage of the 9/11 attacks and speeches from Osama bin Laden, Arab jihadists and a text in Dutch saying: "Wij zijn de terroristen en het terrorisme is verplicht" ("We are the terrorists and terrorism is our duty.")

One of those who had this material on his computer was Yousssef Ettoumi, but in a session of the Rotterdam Court he lamely claimed not to know anything about it.[27] The same film footage was found on the computers of Ahmed Hamdi, Mohammed El Morabit, Rachid Belcacem and Jason Walters.[28] Rachid Belcacem was not on trial as a member of the Hofstad Group, yet he was closely linked to it. (He helped Bouyeri's friend and mentor Bassem Al-Issa leave the Netherlands on the day Theo van Gogh was killed.) Belcacem died under mysterious circumstances, possibly because he told the police too much.

Ahmed Hamdi was in possession of jihadist films entitled: "Righteous groups, rise up!", "Our Terorrism" and "Polder Mujahideen" as well as a secret document from the Dutch security service AIVD. Like most other group members Hamdi also possessed a lot of jihadist texts written by Mohammed Bouyeri, such as Bouyeri's "Open letter to the Dutch people," as well as two documents written by Jason Walters: "Truly, Allah's victory is near" and "A letter for Boyeri" (incorrect spelling).[29] In the latter document did Walters express strong admiration for Mohammed Bouyeri ("This noble brother who loved Allah and his messenger more than the world..."[30])

Mohammed El Morabit's computer also contained documents written by Mohammed Bouyeri. Mohammed Fahmi Boughaba's computer contained the confidential security service (AIVD) document "Report on the activities of the Hofstad Group" as well as documents written by Bouyeri.[31] (A Dutch-Moroccan interpreter working for the AIVD had leaked several AIVD documents to at least two members of the Hofstad Group.)

In the Antheunis Street apartment where Jason Walters and Ismail Akhnikh lived police found documents written by Bouyeri, a handwritten testament, Walters' "letter to Boyeri," the poem "In his path we will fight," an MP-3 film entitled "alJihad," a farewell letter written by Walters, a jihadist audio cassette, among other things.[32] On Walter's computer police discovered the"Kitchen Improved Plastic Explosives (Hand book)," a manual on making bombs.

On Youssef Ettoumi's computer there was, apart from a lot of documents written by Bouyeri, a MSN hotmail message saying "Welcome in our terrorist organization," a well as a hotmail message saying "Re: Operation get rid of swine" ("Re: Operatie zwijn verwijderen," probably meaning "eliminate Theo van Gogh"). In court Ettoumi claimed in December 2005 that a number of documents were from Zine Labidine Aouraghe who had stayed in his house for some time. But he admitted that the document "Re: Operation get rid of swine" was from him.[33] These hotmail messages clearly point to a terrorist network and possible secret operations. It is not unlikely that key members of the group discussed plans to kill people like Theo van Gogh and Ayaan Hirsi Ali. (They will never admit this in court, of course, and Bouyeri said he had acted alone; he will never betray possible co-conspirators.)

Inconsistencies in the verdict

The Appeals Court did not attach much value to all these documents. The suspects were fully entitled to their own interpretation of Islam and having radical texts on computers is not punishable under Dutch law. The Appeals Court said it is allowed to express the view that you must hate the infidel and that the blood of infidels is halal (=clean).[34] This is remarkable, because this is nothing but a license to kill. Jihadist and takfiri Muslims believe that the blood and possessions of the enemies of Islam are halal, which means you are allowed to kill them and take their possessions. This is precisely what Jason Walters ("Mujaheed") wrote in his chat conversations. One of his chat partners (Galas03) wrote him that that Abdul-Jabbar van de Ven, a Dutch Muslim cleric and teacher, had said: "Look, the government, ministries, police, etc., their blood and possessions are halal because they declare war on Islam." Jason reacted: "OK dzazaak (=thanks to Allah), this is the fatwa I need. It is now allowed for me to slaughter every policeman, minister, soldier, officer." Walters later informed Sara Pastoors about this "fatwa."[35] (Van de Ven later denied he ever authorized anyone to kill others.) The Appeals Court now says these views are all covered by religious freedom and freedom of expression (Articles 9 and 10 European Convention on Human Rights), except in those cases where these views exceed the limits provided by the Dutch penal code.

This part of the verdict is highly inconsistent. Because the Appeals Court also says that you cannot invoke the right to religious freedom and the right to free speech (freedom of expression), when you make a call to jihad, a call to wage the armed struggle. This is what Bouyeri did in his writings, the Appeals Court says. He just went too far.[36]

So, in the case of Mohammed Bouyeri the court came to a different conclusion than in the case of the other suspects. But how can you say that the view that the blood of infidels is "halal" (which means radical Muslims have a license to kill them) is covered by the European Convention of Human Rights and a few lines later emphasize that calls to wage the armed struggle and to use violence are illegal?

The verdict of the lower Rotterdam Court was must more consistent and logical.

According to the Appeals Court there was "no common radical political ideology based on an extremist takfiri interpretation of Tawheed (=unity of Allah) nor was there a common ‘jihadist' ideology."[37] This is certainly not what the lower Rotterdam Court and the prosecutors said. In their Antheunis Street apartment Walters and Akhnikh – two key members of the Hofstad Group – liked Bouyeri's writings so much that they discussed the possibility of publishing them in book form (on November 6, 2004).[38]

It seems to me that the judges of the Appeals Court were simply misled by the way the suspects and their lawyers distorted the facts by creating the fiction that we are dealing here with an innocent group of friends who intended to do no harm and who rejected violence. The fiction that Bouyeri's house was just a cosy meeting place of "boys from the neighborhood" who wanted to talk about their Islamic faith and "Tawheed." Unfortunately, the Appeals Court partly believed that these fictions were true. (The court did realize, however, that members of "the so-called Hofstad Group" justified hating the enemies of Islam and believed that the blood of infidels was halal, but said there was nothing wrong with these views.)

MSN Group "MuwahideenTheTrueMuslims"

Inside the courtroom Ahmed Hamdi was very good in downplaying his role in the Hofstad Group. Yet, it was early September 2004 when he moved in with his friend Mohammed Bouyeri after marital problems at home. Hamdi's wife Najat complained that he was radicalizing quickly and had joined some kind of "brotherhood." Hamdi was the computer expert of the group. If a member of the group or a friend had some technical problems with computers, Hamdi was there to help. He was a kind of help desk. He had a "Dynalink" computer and a laptop.

It was Hamdi who played an important role in the jihadist "MSN Group MuwahiddinDeWareMoslims" ("MuwahideenTheTrueMuslims"). He was assistant web manager of the group. With his detailed knowlegde of computers he was probably the one who initiated the group. (He was one of the first to join it. ) As assistent manager Hamdi was authorized to allow others to join the group or refuse them. Another assistant manager was Omar Aoulad Lahcen, a jihadist Muslim. The name of the manager has never become known, but Hamdi must have been in touch with him: it was from Hamdi's address that the web manager's e-mail address ([email protected]) was used to log into a computer.[39]

The following persons joined the MSN Group in the summer of 2004:

- Ahmed Hamdi, assistant manager (2 July 2004, and, using different e-mail addresses, also on 24 July 2004 and 5 August 2004);

- Youssef Ettoumi (3 July 2004);

- Mohammed Bouyeri (4 July 2004);

- Mohammed Fahmi Boughaba (a friend of Bouyeri's, 4 July 2004);

- Omar Aoulad Lahcen, also assistant manager (4 July 2004);

- Rachid Belcacem (7 July 2004);

- Nouriddin El Fatmi (6 August 2004).[40]

In a session of the Rotterdam Court Mohammed El Bousklaoui stated that Hamdi had made him a member when both were in the internet café "Willem Nakken Street," in Amsterdam West.[41] (This café is a wellknown meeting place of radical young Muslims.) The total membership of the group was between 150 and 200. El Fatmi played a very active role. He used the MSN Group to distribute radical documents and jihadist films.

In September 2004 Omar Aoulad Lahcen posted a death threat message against "the devilish Mortadda (=apostate) Ayaan Hirsi Ali" on MuwahiddinDeWareMoslim. Her secret address ("Ayaan Hirsi Ali went into hiding") was also revealed. Not one of the other members of the MSN Group distanced themselves from this action. Lahcen was later convicted by the Rotterdam Court in a separate court case.[42] When he appeared in court on January 6, 2006 (Hofstad Trial), Hamdi denied he knew Omar Aoulad Lahcen, but he admitted that he had read the message on the "devilish Mortadda Hirsi Ali."[43] He downplayed his role in the MSN Group, saying others had invited him to become a member. He lied that he was not active in the MSN Group.[44] I detected 41 other lies in the statements made by Hamdi in court that day.[45]

When he appeared before the Appeals Court on May 30, 2007, Hamdi repeated he did not display activities in the MSN Group. "I did not make any contributions," he said. Others had made him a member. He claimed did not even know he was assistent manager. It was an "open website," he claimed. And it was very easy ("just one click") to join it. Opinions differ about this, though. Presecutor Plooy suggested in January 2006 that the MSN Group was meant for a selected number of people which distributed radical and threatening texts among members and to selected outsiders such as Sara Pastoors.[46]) But during a session of the Appeals Court in June 2007, expert witness J.F. Perreira said it was easy to become a member, you did not need any permission. Perreira also said that there were so many beheading films that he was shocked by it. "I still remember that there was a film showing the gruesome murder of ten South Koreans; these murders were fully justified by members of the MNS Group." He stressed the important role of the manager and the assistant manger: "The manager and assistant manager could remove messages from the MSN Group. It was also possible for the manager and assistant manager to remove members, or to even ban them."[47]

About Omar Ahmed Lahcen, Hamdi said: "I did not know his real name. I only knew him as Abu Muhammed ("Aboe Moehanned"). Later, when I read the court documents, I discovered what his real name was."[48] He also said he was in favor of Sharia law, which was far more preferable to parliamentary democracy. But he was opposed to violence, he said. He was focussing on deepening his religious conviction.

In another court session Hamdi complained about his personal circumstances. Since his conviction in March 2006, his name appears on the European Union terrorism list and, consequently, he cannot have his own bankaccount. It was very difficult for him to find a new job. He now lives with his wife again who supports him financially.[49]

The Appeals Court believed Hamdi's claim that without him being aware of it others had made him assistant manager of the MSN Group.[50] (This possibility cannot be excluded, the court said.) While the Rotterdam Court sentenced Hamdi to two years in jail in 2006, the Appeals Court acquitted him of all charges.

Also acquitted of all charges were Nouriddin El Fatmi, Youssef Ettoumi, Mohammed El Morabit and Mohammed Fahmi Boughaba.

Concluding comments

Verdicts like these do not help to prevent future terrorist attacks. In April 2005 terror suspect Samir Azzouz, a key member of the Hofstad Group who instructed Jason Walters how to recruit candidates for the jihad,[51] was acquitted of all terrorism charges by the Rotterdam Court. (Samir's admirers later said that "Allah had blinded the eyes of the judges. "He had drawn a curtain in front of their eyes."[52]) As he left prison Samir beat up a photographer from the Dutch newspaper De Telegraaf and immediately set out to prepare new terrorist attacks. He visited Ismail Akhnikh who was in pre-trial detention at the time and Nouriddin El Fatmi. In October 2005 the Amsterdam Appeals Court also acquitted Samir Azzouz of all terrorism charges. (Later the Supreme Court ordered the Appeals Court to review the case because legal errors had been made.)

In the summer and Autumn of 2005 Samir was planning suicide attacks and was arrested again in October ("Piranha case") and finally convicted.

Ismail Akhnikh is as radical as his Samir Azzouz. The fact that he has now been acquitted of all terrorism charges and is a free man again does not bode well those involved in law enforcement. Like his friend Azzouz, Akhnikh is a dangerous fanatic and a hardcore member of the Hofstad Group. He was willing to kill others.

On November 8, 2004, Akhnikh recited a message from the "Division (or Brigade) of the Islamic Jihad" (= Akhnikh, Walters and others) applauding the murder of Theo van Gogh and threatening to kill two members of parliament:

"Here speaks the Division of the lslamic Jihad in the Netherlands, making the following statement: We have now ritually slaughtered a lam, and this will be the punishment for all those who insult Allah and His Prophet. And for everyone in this country who dares to defy Allah and His Prophet. Ayaan Hirsi Ali, we will soon meet each other if Allah wants it.

Allah is great and Islam will be victorious. We will continue to hunt you, you the enemy of Allah."

"We will rejoice greatly when we can introduce the Sharia by throwing Mr. Wilders from the Euromast (=high tower in Rotterdam. V.). We will then take the opportunity to baptize the Euromast in Wilders' blood and transform it into a building where such criminals can be executed." [53]

This was a clear terrorist threat against two Dutch members of parliament (Ayaan Hirsi Ali and Geert Wilders). Mohammed Bouyeri wrote similar things and later decided to kill Theo van Gogh. Salafi jihadist and takfiri ideology can easily result in acts of terrorism. (The Amsterdam Court referred to the killing of Theo van Gogh as a "terrorist attack.") If arrests would not have been made in time, young jihadists like Jason Walters and Ismail Akhnikh would also have tried to kill so-called "enemies of Islam."

Here, too, the Appeals Court's verdict is inconsistent. In the case of Bouyeri the Appeals Court argues that he went too far in his writings. But the Appeals Court does not say the same things about Ismail Akhnikh who quoted from Bouyeri's own writings and praised him for killing Theo van Gogh. Instead, Akhnikh only got 15 months for illegal arms possession. The lower Rotterdam Court was much more consistent in this respect.

Defense lawyers were quick to point out that these threats were not issued in public but in the privacy of a home. The persons who were threatened were not aware of it. They also emphasized that "incitement to hatred" must be done in public (Articles 131, 132 and 137d of the Dutch penal code). The Appeals Court followed this kind of reasoning.[54] But Article 132 of the Dutch penal code says that those who distribute, display or possess with a view to distributing or displaying writings or images which incite to violence against public authorities, are punishable. Walters and Akhnikh not only possessed Bouyeri's writings they also planned to publish them. And Bouyeri himself asked his friends to publish his jihadist works.

The Rotterdam Court ruled that the criterion of "being done in public" is also met when it concerns a portion of the general public, for example when it is published on a site, or when the incitement takes place in the presence of a limited number of persons (besloten kring) provided others who are not present could also be informed about it.[55]

Ybo Buruma, an expert on Dutch penal law, criticized the verdict of the Appeals Court describing it as "unpleasant." "It does not mean the Hofstad Group did not exist," he said. He thinks the Appeals Court's decision to acquit most terror suspects, was not very good. There is too much restraint in the verdict. The Rotterdam Court's decision of March 2006 was better, he said, pointing out that it is now punishable under Dutch law to conspire (samenspanning) to commit crimes of terrorism or be involved in the preparation of such crimes.[56]

-------------------------

Emerson Vermaat, a law graduate from the University of Leiden, the Netherlands, is author of "De Hofstadgroep. Portret van een radicaal-islamitisch netwerk" (Aspekt Publishers, Soesterberg, the Netherlands) and "Nederlandse Jihad. Het proces tegen de Hofstadgroep (Aspekt Publishers, Soesterberg, 2007). He made detailed notes during all the court sessions on the Hofstad case and is preparing a book on "Jihadists in the Netherlands." His website is: Emersonvermaat.com.



[1] Ressortsparket te 's-Gravenhage Requisitoir van de Advocaat-Generaal in de zaak "Arles," Ter terechtzitting van de Gerechtshof te 's-Gravenhage, zitting houdend te Rotterdam op 14 november 2007, p. 53, 54, 118, 119.

[2] In court Walters denied he had been in a terrorist training camp, he had only been in a "madrassa" (koranic school). But his own chat conversations he says quite different things. Moreover, a number of Pakistani "madrassas" are training camps in disguise. Claims by Jason's lawyers that the chat conversations were just a matter of a young man who tried to impress others (stoerdoenerij) are not credible. See Emerson Vermaat, Nederlandse jihad. Het proces tegen de Hofstadgroep (Soesterberg: Uitgeverij Aspekt, 2006), p. 133-135, 305.

[3] Ressortsparket te 's-Gravenhage, op. cit., p. 111.

[4] OVC conversations quoted by the Rotterdam court in its verdict of March 30, 2006, see Emerson Vermaat, op. cit., p. 389.

[5] Pleidooi mr. Ronald van der Horst, November 30, 2007 (author's notes).

[6] Ibid.

[7] Ressortsparket te 's-Gravenhage, op. cit. p. 56, 57.

[8] Landelijk Parket, Requisitoir van de Officier van Justitie in de zaak "Arles," part 1, Rotterdam, January 23, 2006, p. 44-46 ("Een zekere structuur, deze hoeft niet hiërarchisch te zijn..." Aan de structuur hoeven geen erg hoge eisen te worden gesteld... Organisaties zijn netwerken met een soms minder zichtbare, mogelijk zelfs wisselende structuur..." See also HR (Supreme Court) November 9, 2004, 471, 472 ("Clickfonds"), Nieuwsbrief Strafrecht and M.J.H.J. de Vries-Leemans, Artikel 140 Wetboek van Strafrecht (doctoral dissertation 1995), p. 35.

[9] NRC Handelsblad, January 24, 2008, p. 9 ("Nuchter terreurarrest"); NRC Next, January 25, 2008, p. 19.

[10] European Union Council Framework Decision of June 13th, 2002, on combatting terrorism (2002/475/JHA).

[11] Gerechtshof 's-Gravenhage, Meervoudige Kamer voor Strafzaken, Arrest, January 23, 2008, LJN BC2576, 2200189706, Parketnummer 1000017404 (Jason Walters), p. 21.

[12] Pleitaantekeningen van B. Böhler en V.L. Koppe in de zaak tegen Nouriddin El Fatmi en Ahmed Hamdi, Gerechtshof 's-Gravenhage, zitting 29 november 2007 te Rotterdam, p. 36: ...een losse kring van buurtjongens, kennissen en vrienden die elkaar toevallig bij Bouyeri ontmoetten...)

[13] Emerson Vermaat, Nederlandse Jihad, op. cit., p. 284, 285.

[14] Emerson Vermaat, ibid, p. 84, 281; Ressortspartket te 's-Gravenhage, op. cit., p. 133: "Ik vond de beelden van de filmpjes verschrikkelijk en onmenselijk."

[15] Dagblad De Pers, 20 July 2007, p. 1 ("Getuige Hofstadzaak houdt zich dom"): "Nadat de verklaring was gelekt, kreeg W. (= Abdellatif El Morabet) een briefje in de bus waarop stond: ‘Met jou zal hetzelfde gebeurden als met Theo van Gogh.'"

[16] Ibid.. p. 169, 170.

[17] Ressortsparket 's-Gravenhage, op. cit., p. 130; Emerson Vermaat, op. cit., p. 181 (watching beheading videos from Iraq in Bouyeri's house).

[18] Emerson Vermaat, op.cit.,.p. 85.

[19] Ibid., p. 82.

[20] Emerson Vermaat, op. cit., p. 105, 282.

[21] Ressortsparket te 's-Gravenhage, op. cit., p. 214

[22] Emerson Vermaat, op. cit. p. 14, 15; Ressortsparket te 's-Gravenhage, op. cit., p. 134, 135: "Over het doorsnijden van kelen heb ik Fouad tegen mij horen zeggen dat je bij mensen de keel van voren moest insnijden en dan niet helemaal. Op die manier lijden de slachtoffers meer. Fouad zei dit op een moment dat we een filmpje bekeken waarop mensen werden onthoofd. Ik zag op die filmpjes dat er bij de slachtoffers de kelen deels doorgesneden werden en dat je daarna de aderen in de hals nog zag kloppen en de slachtoffers rochelende geluiden maakten. Ik zag dat die mensen inderdaad nog erg leden nadat hun keel doorgesneden was."

[23] HR February 1, 1994, NJ 1994, 427; Ressortsparket te 's-Gravenhage, Repliek van de Advocaart-Generaal in de zaak "Arles," Ter terechtzitting van het Gerechtshof te 's-Gravenhage, zitting houdend to Rotterdam op 7 januari 2008, p. 20.

[24] Ressortsparket te 's-Gravenhage, op. cit., p. 193, 194.

[25] Ressortsparket 's-Gravenhage, op. cit. p. 144, 145.

[26] Information provided to the author on January 23, 2008.

[27] Emerson Vermaat, op. cit., p. 118, 119.

[28] Ibid. p. 288.

[29] Ressortsparket 's-Gravenhage, op. cit. p. 160, 161, 180, 181.

[30] Requisitoir van de Officier van Justitie in de zaak "Arles," part 2, op cit., p. 63.

[31] "Ressortsparket 's-Gravenhage, op. cit.," p. 162, 163, 181-183, 200, 201.

[32] Ibid., p. 183, 202.

[33] Ibid., p. 163, 164, 183, 184, 188-190. Ettoumi contradicted himself in court on December 19, 2005: "‘Operatie zwijn verwijderen' ken ik niet. Het mail bericht is inderdaad van mij."

[34] Gerechtshof 's-Gravenhage, Meervoudige Kamer voor Strafzaken, Arrest, 23 January 2008, op. cit., p. 14: "Men mag – uiteraard – de overtuiging aanhangen of de mening zijn toegedaan dat Tawheed een politieke lading heeft, dat Allah alleenheerser is, óók in wereldlijke zaken, en dat dat, tot in zijn uiterste consequentie doorgetrokken, impliceert dat het bloed van degenen die daar niet in niet geloven ‘halal' is."

[35] Chat conversations Jason Walters ("Mujaheed"), September 19, 2003 (author's file on Jason Walters); Emerson Vermaat, op. cit., p. 58; Requisitoir van de Officier van Justitie in de zaak "Arles," part 2, op cit., p. 56, 64 (internet version); Emerson Vermaat, De Hofstadgroep. Portret van een radicaal-islamitisch netwerk (Soesterberg: Uitgeverij Aspekt, 2005), p. 86, 87.

[36] Gerechtshof 's-Gravenhage, Meervoudige Kamer voor Strafzaken, Arrest, 23 January 2008, op. cit., 14, 17 ("Maar begin 2004 ging Bouyeri in zijn geschriften over tot een algemene oproep tot de gewapende strijd. Toen overschreed hij voor het eerst de grenzen van het strafrecht.")

[37] Ibid., p. 11.

[38] Ressortsparket 's-Gravenhage, op. cit., p. 202, 203 (Akhnikh, commenting on several of Bouyeri's writings, said: "Yes, this is good, man, it makes you very quiet, man... Everything must be printed... We are going to ask this printing business if they want to publish it, it's cheaper over there, you know...")

[39] Requisitoir van de Officier van Justitie in de zaak "Arles," part 2, op cit., p. 24 (both the internet version and the printed version).

[40] Ibid.

[41] Ibid.; see also: Emerson Vermaat, op. cit., p. 173: "In een internetcafé aan de Willem Nakkenstraat heeft Hamdi mij lid gemaakt."

[42] Ibid.; see also: Emerson Vermaat, op. cit. p. 254, 271, 332.

[43] Emerson Vermaat, op. cit. p. 179, 180.

[44] Ibid., p. 187: "Ik heb geen activiteiten verricht op die website" (=MSN Group). See also: Requisitoir van de Officier van Justitie in de zaak "Arles," part 2, op cit., p. 25: "De verklaring van Hamdi ter terechtzitting dat hij niet weet waarom hij op alle drie zijn emailadressen was uitgenodigd om lid te worden en hoe en waarom hij assistent-beheerder is geworden, is niet geloofwaardig. Zoiets gebeurt niet zo maar. En op het beheerderaccount is nota bene vanaf zijn huisadres ingelogd."

[45] Emerson Vermaat, op. cit., p. 187.

[46] Requisitoir van de Officier van Justitie in de zaak "Arles," part 2, op cit., p. 25: ...een beperkt besloten groep waarbinnen radicale en bedreigende teksten werden gepubliceerd..."

[47] Ressortsparket 's-Gravenhage, op. cit., p. 242, 243.

[48] Author's notes during Hofstad Trail, Appeals Court The Hague, in session in Rotterdam, May 30, 2007.

[49] Author's notes during Hofstad Trial, Appeals Court The Hague, in session in Rotterdam, October 26, 2007.

[50] Gerechtshof 's-Gravenhage, Meervoudige Kamer voor Strafzaken, Arrest, 23 January 2008, op. cit., p. 20.

[51] Ressortsparket 's-Gravenhage, op. cit., p. 207, 208.

[52] Emerson Vermaat, De Hofstadgroep, op. cit., p. 118. This is derived from the Islamic tradition about the life of Mohammed. Once Mohammed was hiding for his enemies in a cave. Allah sent spiders who wove a web at the entrance of the cave so that nobody could see Mohammed anymore.

[53] Ressortsparket 's-Gravenhage, op. cit., p. 44, 45.

[54] Gerechtshof 's-Gravenhage, Meervoudige Kamer voor Strafzaken, Arrest, 23 January 2008, op. cit., p. 15, 18.

[55] Ressortsparket 's-Gravenhage, op. cit., p. 26.

[56] NRC Next, January 24, 2008, p. 4, 5 ("En dat is maar goed ook, zegt hoogleraar Buruma").

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