Detaining ‘Terrorists’: Challenges, solutions and the lessons we’ve learned

Last year, researchers from the Open Society Justice Initiative and Amnesty International published a report that revealed a number of serious human rights violations at special detention units – the Terroristenafdeling – in The Netherlands, which hold people suspected and convicted of terrorism offences. In this expert blog, the report’s authors Jonathan Horowitz and Doutje Lettinga discuss the government’s response and the urgent reforms that still need to be made, and reflect upon the lessons learned from their research.

In this post, we summarise our concerns with the TA and the government’s response to our report’s findings and recommendations one year on. We also reflect on a few of the lessons we have learned from our research and advocacy. We hope this provides useful food for thought for policymakers, human rights and penal reform advocates, and others working on similar issues inside and outside The Netherlands.

Respecting the human rights of prisoners is fundamental to lawful and effective prison management. But when it comes to people held on terrorism-related offences as well as detainees who governments fear are becoming ‘radicalised’, we see states using certain high-security measures that often trample their rights.

That is why the Open Society Justice Initiative and Amnesty International recently warned the UN’s top anti-torture body, the Committee Against Torture (CAT), that the Dutch government’s use of specialised high-security prison units to detain people suspected and convicted of terrorism-related offences has resulted in violations of the prohibition of cruel, inhuman or degrading treatment or punishment.

Our submission comes in advance of the CAT’s upcoming review (20–21 November) of The Netherlands’ compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It also comes one year after we published a report that was highly critical of these units (called the Terroristenafdeling, or TA). Since that time, the government has instituted several important reforms. These are welcome, but we wanted to bring to the Committee’s attention additional reforms that are urgently needed

In this post, we summarise our concerns with the TA and the government’s response to our report’s findings and recommendations one year on. We also reflect on a few of the lessons we have learned from our research and advocacy. We hope this provides useful food for thought for policymakers, human rights and penal reform advocates, and others working on similar issues inside and outside The Netherlands.

Dutch high-security prisons in the context of counterterrorism

In The Netherlands, TA security measures have included prison officials placing TA detainees alone in cells for 19 to 22 hours a day and subjecting them to routine and humiliating full-nudity strip searches. Former detainees we interviewed also described how authorities placed limitations on the contact they had when their family members visited. Some detainees found those limitations so severe that it was impossible for them to maintain meaningful relationships with a spouse or their children.

When we conducted the research for our report, we were sensitive to the fact that high-security measures might be necessary for certain individuals based on relevant factors, such as the nature of the charges against them, their willingness to resort to violence, or prior attempts to smuggle contraband. We were also conscious, however, that The Netherlands defines criminal acts with a ‘terrorist intention’ in a broad manner. Acts of terrorism under Dutch domestic law can include, for example, non-violent offences such as posting a Tweet or providing small amounts of cash to a relative who is travelling abroad.

Despite those obvious distinctions, authorities did not, and still today do not, individually assess whether it is necessary and proportionate to place someone suspected or convicted of terrorism-related offences in these high-security detention units. Instead, as long as a person is held on a terrorism-related offence, that person is almost always automatically placed in the TA.

International human rights standards are clear on this issue. Authorities can impose high-security measures on detainees only on an exceptional basis and only when those measures are necessary and proportionate, based on a detainee’s individual behaviour, and commensurate with the level of risk a detainee might pose to himself or others.

Dutch prison law also treats suspects and people convicted of terrorism-related crimes as one and the same at the TA. The same placement procedures; the same facility; the same security measures policies. As our report explains, treating people who have not yet had their day in court as convicted felons seriously undermines the presumption of innocence and stigmatises them as ‘terrorists’.

Treating people who have not yet had their day in court as convicted felons seriously undermines the presumption of innocence and stigmatises them as ‘terrorists’.

Making matters worse, it is nearly impossible for detainees in the TA to convince authorities to transfer them to another facility. There is rarely any effective way to appeal their placement in the TA and a detainee has no legal right to a periodic review process to assess if they should remain there. Detainees also do not have access to an effective means of challenging the routine security measures that are applied to them on a daily basis.

One of the most significant findings of our report was that the prosecutors, probation officers, defence lawyers and former detainees we spoke to all shared the concern that the blanket use of high-security measures at the TA ran at cross-purposes with the TA’s goal of protecting public safety. This is what happens when a state establishes a system that subjects people to unnecessarily harsh measures and withholds from them reintegration opportunities and professional skills training before releasing them back into society. Probation service officials explained to us that it was ‘not for nothing’ that they prepared other prisoners in the general population to return to society. They pointed out with concern that ‘the risk of recidivism is much higher without’ these reintegration services.

Progress one year on

It is one year since we released our report and, as our submission to the UN Committee against Torture explains, the government has made some progress in addressing these and other concerns.

On the plus side, the Dutch government is aware of the human rights and security concerns associated with the TA and, even before we released our report, it said it wanted to ensure that people placed in the TA do not come out in a condition that was worse than when they went in.

Most notably, on the day after we released our report in October 2017, prison authorities rolled out a new policy that aimed to limit the use of routine full-nudity body searches. These strip searches – which have never resulted in the discovery of contraband according to prison officials – were humiliating in and of themselves. They also triggered a cascade of other human rights problems, which makes this reform particularly important. For example, many detainees refused to meet with their loved ones in person because they were forced to undergo a strip search after each visit. Having refused, they could only see visitors behind a glass wall that prevented any physical contact, including with their children. This separation only compounded their isolation.

On the day after we released our report in October 2017, prison authorities rolled out a new policy that aimed to limit the use of routine full-nudity body searches.

There is a perception that there has been a reduction in strip-searches, which would be significant. According to one defence lawyer who represents TA detainees, ‘As far as I can tell the strip searches have decreased a lot.’ At the time of writing, Amnesty International and the Open Society Justice Initiative had not assessed the implementation of this policy or documented whether the number of strip searches had in fact decreased. It would behove independent monitors who have access to the TA facilities to request statistics on the current frequency and reasoning for body searches.

In its latest response to the European prison watchdog, the government also said it intended to order a few other fixes. The government told the Committee for the Prevention of Torture (CPT) that it would look for ways to increase reintegration and rehabilitation opportunities in the TA. While very late in coming, this would be a positive step and we urge the government to make good on its promise.

The authorities have also promised to conduct individual risk assessments to determine which TA detainees are ‘leaders’ and which ones are ‘followers’. Presumably, authorities will use these assessments to apply different security measures to different people – such as increasing or decreasing their out-of-cell time and contact with other detainees. It remains unclear on what basis a person would be labelled in such a manner, and whether dividing the detainees into these two groups would cause divisions and thus do more harm than good.

Next steps and recommendations

We have three big concerns with these assessments. First, the government said that it would conduct the risk assessments only after it places a detainee in its high-security TA facility. This is in contrast to international human rights standards that require authorities to conduct an individualised risk assessment to demonstrate that restrictions placed on a detainee are necessary and proportionate before imposing such restrictions. To solve this problem the government must reform its laws and policies so that a comprehensive individualised assessment takes place prior to assigning a person to the TA. Only this can fully ensure that placement in the TA is both necessary and proportionate and never violates the prohibition on torture and other cruel, inhuman or degrading treatment or punishment.

Second, it is not clear if prison authorities will mainly use the risk assessment tools for prison management purposes to separate categories of prisoners or to determine whether the security measures they impose on detainees are necessary or proportionate and truly address a potential risk posed by a detainee’s individual behaviour. The latter is required by international human rights law and the important standards contained in the European Prison Rules, the UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), and Council of Europe’s Guidelines for prison and probation services regarding radicalisation and violent extremism.

Third, we are concerned about the procedural rules that will come with these new assessments. These assessments have the potential to heavily restrict a detainee’s most basic human rights. That means authorities must make the assessments using clear and objective criteria set out in publicly available regulations. The assessments must also allow detainees to participate in them and to access information that will enable them to effectively challenge the results. Providing transparent, credible and reliable assessment procedures also helps ensure fairness, and encourages detainees to trust the process. This trust is essential for prison management too; our research found that some detainees sought other, sometimes more disruptive, ways to seek justice and remedies for injustice when they felt the system failed them, such as resorting to collective hunger strikes or other forms of protests.

The government’s prison oversight mechanisms are logical tools for leveraging the Ministry of Justice and Security to adopt additional reforms that could bring the TA into compliance with The Netherlands’ human rights obligations.

The government continues to insist that its National Preventative Mechanism – a body that is supposed to provide independent monitoring of detention facilities to prevent torture and other ill-treatment – is doing its job perfectly well, despite criticism from inside and outside the government that the NPM lacks real and perceived independence. Our report and CAT submission also explain why the Inspectorate of Justice and Security and the Health and Youth Care Inspectorate need to broaden the scope of their monitoring mandates and ensure that their inspections rely on both international human rights law and widely accepted normative human rights standards.

Lessons learned

One of the most important lessons from this work is that reforms, no matter how slight, are possible and can have a positive impact on the human rights of detainees, if the timing, tone and momentum of human rights advocacy are right. This is true even in an atmosphere where governments tell the public that in order to prevent terrorism, the authorities need to clamp down on human rights. Security and human rights are mutually reinforcing; you cannot have one without the other. By treating people in the TA with human dignity, the authorities should anticipate that the TA will be safer and more secure precisely because it will be more humane.

By treating people in the TA with human dignity, the authorities should anticipate that the TA will be safer and more secure precisely because it will be more humane.

A second lesson is that some human rights violations in terrorism-associated detention facilities deserve concerted attention because of the ripple effects they cause. Take the routine strip searches at the TA as an example. The former detainees we spoke with made it clear that ending them would not only eliminate a deeply humiliating experience, but it would reduce the hostility they promote between detainees and prison officials, and increase a detainee’s willingness to spend quality time with their loved ones without an isolating glass wall separating the two.

A third lesson is to recognise that governments are not monolithic. When we approached various authorities to promote the recommendations in our report, some parts of the Dutch government were resistant to our findings and recommendations. Other government actors were sympathetic to our concerns and promoted important reforms. The achievements we have seen, even if small, were only possible through the work of government representatives and prison authorities who fought, and fought hard, to improve the human rights conditions at the TA.

A fourth lesson we learned was that the institutional monitoring bodies that are supposed to ensure that the practices and conditions in detention facilities comply with a state’s human rights commitments can offer only limited support if they are not fully independent of the government and do not have the financial and human resources and expertise to conduct effective human rights monitoring. At worst, such monitoring bodies can legitimise the prison policies and practices that they should be condemning. At best, they do their jobs well, report human rights concerns to governments, and hold the authorities accountable if a government fails to remedy violations.

A fifth lesson is that our work benefited from the fact that academics, judges, prosecutors, detainees and even prison authorities themselves were already critical of the TA. While they may not have shared our same concerns about the TA, hearing their criticisms and building relationships with these different groups and professional sectors helped us build support for several of our recommendations. We are convinced that helping to alert and mobilise this wider group of relevant and concerned actors facilitated the speed with which some recommendations were implemented.

A sixth, and crucial, lesson is that points of commonality can and do exist between policymakers and human rights advocates. We are starting to see glimmers of hope with respect to a new willingness on behalf of policymakers to increase reintegration and rehabilitation opportunities for TA detainees. This shift will benefit detainees and public safety alike. Importantly, it is a clear example that human rights protections, humane and effective prison management and counterterrorism priorities can be mutually reinforcing.