The Defence’s plea
The third day of the substantive hearing in the Arkel case was devoted to the defence’s plea. Before counsel began presenting the defence’s arguments, the Presiding Judge addressed an issue concerning the interpretation during an earlier hearing. Two interpreters had raised concerns about three parts of the translation provided by another interpreter. The Court stated that these remarks would be added to the official record and that the interpreters concerned would no longer participate in the case.
The defence then delivered an extensive plea, supported by a PowerPoint presentation. Counsel first addressed the broader context of the Syrian civil war and the defendant’s personal circumstances. The defence referred, among other things, to the loss of family members, the death of the defendant’s brother, his previous detention and torture in Sednaya prison and the suspicions he allegedly faced within his community because of perceived connections to the Assad regime. Against this background, the defence argued that it was difficult to reconcile the defendant’s own experiences with the allegation that he later became a senior member of IS.
The defence stressed that the case should not be assessed based on IS’s conduct in general, but on the evidence concerning the defendant himself. According to counsel, the chaotic circumstances of the Syrian conflict made it particularly important to distinguish between different armed groups, periods and geographical areas and to determine precisely which events could be attributed to whom.
A substantial part of the morning plea concerned the reliability of the witness evidence. The defence argued that several witnesses were anonymous or could not be fully questioned, limiting the possibility of assessing their statements. Counsel also pointed to inconsistencies between witness accounts and argued that some defence requests to examine witnesses had been rejected. In the defence’s view, these circumstances, combined with the limited preparation time available at different stages of the proceedings, affected the defendant’s right to a fair trial under Article 6 of the European Convention on Human Rights.
On this basis, the defence primarily requested that the Public Prosecution Service be declared inadmissible. Alternatively, it argued that statements from anonymous witnesses should be excluded from the evidence.
The defence then addressed the identification of the defendant as the person known under the kunya. Much of the evidence relating to this identification originates from social media posts and other open-source material. Counsel argued that several sources which appeared to be independent could in fact be traced back to a relatively small and interconnected group of individuals. According to the defence, the authorities had insufficiently investigated the people behind these accounts and the connections between them.
The defence further argued that photographs and allegations about the defendant had already circulated online before several witnesses were questioned. This, counsel submitted, created a risk that later identifications were influenced by information encountered on social media rather than by witnesses’ own memories. The defence also pointed to contradictory online reports concerning the accused under the kunya attributed to him , including reports about his alleged detention, death or whereabouts, and argued that these inconsistencies undermined the reliability of the open-source material.
Similar concerns were raised regarding contacts between different groups of witnesses and organisations involved in documenting events in Syria. The defence argued that information may have been shared between witnesses before they gave statements to Dutch investigators, creating a risk that witnesses could no longer distinguish between what they had personally observed and information they had obtained from others.
Finally, counsel argued that the first part of the name of the accused was not unique and referred to several other individuals who allegedly used the same or a similar kunya. The defence also questioned the reliability and possible motives of several witnesses who had themselves been connected to armed groups. According to the defence, this provided an additional reason to approach their allegations against the defendant with caution.
The defence argued that the defendant could not be tied to any coherent command structure. It examined the vague concept of Amnis, the security apparatus supposedly running through IS’s ranks, noting that witnesses stated they weren’t sure who Amnis actually was. IS was very secretive about which people were Amnis; even people within IS did not know which persons were Amnis. Therefore, it is very unlikely that witnesses would know if the defendant was an Amni.
Subsequently, the defence challenged pieces of evidence from a data carrier handed over to the prosecution by the FBI, whose origin nobody could actually trace. The defence suggested that the images may have been downloaded from Twitter rather than seized directly from IS. It further argued that the metadata indicated that they may have been compiled after the fact by someone researching IS, rather than by IS itself. According to witness statements, people were investigating IS in the area. The handful of photos of the defendant on the data carrier mostly came from a wedding in November 2013, which was attended by a combination of civilians, fighters, and children.
Regarding the video of the defendant singing along to a song about conquering Rome, the defence argued that the lyrics had been adjusted and that he could join in without knowing them. The song’s lyrics apparently change depending on the occasion, and it is performed in a call-and-response style, where a leader sings a line, and everyone else sings it back.
Another photo showed the defendant beneath a flag; this picture was taken on the same day as the video. The defence stated that the flag in the picture wasn’t exclusive to IS; the Free Syrian Army used it too, and alliances of convenience between FSA and IS against the regime weren’t unheard of at the time. Even if some of the images originated from an IS-linked source, the defence argued, this did not establish that the defendant was a member of IS. The defence pointed out that many non-fighters also appeared in the same materials and that, in every photograph, the defendant was unarmed and wearing ordinary clothing that would not typically be worn by IS fighters.
Regarding a document listing 166 individuals, described by the prosecution as an IS personnel list, defence counsel questioned its compilation and raised the possibility that it had been altered. It referenced a date recorded on the list (November 19, 2013) and presented a timeline of the defendant’s marriage to contest the document´s implications. The religious ceremony took place in early 2013, official registration in October 2013, and subsequent cohabitation in 2014. The defence argued the defendant did not need the salary of IS, pointing to the defendant’s own income, savings, and later UNRWA assistance received by his wife. It was argued that the UNRWA assistance would have been essentially impossible for the family of an IS fighter to receive.
A recording that surfaced in July 2023, apparently containing a song referencing the defendant, was dismissed on similar grounds, as no one could say where it came from, when it was actually recorded, or whether the song, even if genuine, was really about him at all.
The defence categorised witnesses into four categories. The first category consisted of witnesses claiming direct, personal knowledge. The defence considered these witnesses inconsistent and unreliable, arguing that they contradicted both themselves and one another. According to the defence, the witnesses gave incorrect years, failed to recognise the defendant in photographs, confused which faction was active at particular times, or based their accounts on rumours presented as personal recollections.
The second category consisted of witnesses who acknowledged that their knowledge was based on second-hand information or hearsay from others. Several of these witnesses also qualified or withdrew parts of their statements when questioned more closely by the investigating judge. The defence therefore also considered these witnesses unreliable.
The third category consisted of witnesses who testified in the defendant’s favour. According to the defence, these were individuals who actually knew the defendant, lived in the same neighbourhood, and saw him regularly. They testified that they never saw him carrying a weapon or wearing the clothing typically worn by IS fighters. The defence also referred to a wiretapped conversation in which the defendant’s wife insisted that he had never carried a weapon.
The fourth category of witnesses was dismissed by the defence as simply unreliable. The defence argued that two witnesses had demonstrably lied about material parts of their accounts.
Turning to the legal architecture of the charges themselves, the defence argued that even if IS as an organisation had committed atrocities in Damascus, general culpability could not simply be transferred onto their client without a specific, provable link. It challenged whether punishments for conduct such as drug use or so-called “moral” offences could satisfy the required connection with the armed conflict itself, and questioned, citing the ICC’s Al Hassan judgment, whether detention without formal sentencing, particularly when the person was later released, could actually qualify as an unlawful deprivation of liberty under the relevant statute. It further questioned whether arbitrary detention was even clearly established as a standalone war crime under international law, warning against stretching the statute’s catch-all provision beyond what the principle of legal certainty would allow. The defence addressed each of the individual incidents raised by the prosecution, including killings, conditions at a facility known as Prison 4, and a separate, more severe facility referred to as Prison 0. In each case, it argued that the evidentiary record was too limited or contradictory, or that there was insufficient evidence linking the alleged conduct to the defendant personally.
Regarding the allegation that their client held a leadership role, the defence stated there was insufficient evidence to establish that he held such a position. It noted that the Amniyat encompassed multiple roles within IS, not all of which involved leadership responsibilities. Furthermore, the defence argued that everyone who had “Al-Amni” added to their kunja held a leadership position.
The plea concluded with a request that the Court, first and foremost, find the Prosecution’s case inadmissible. If the Court were to determine that the case is admissible, the defence requested the Court to fully acquit the defendant on both the membership charge and underlying war crimes charges. If the Court were nonetheless to convict, the defence asked the Court to give significant weight to the toll of the defendant’s pre-trial detention. It argued that the defendant’s prolonged pre-trial detention had already violated his rights under Article 5, 6 and 8 of the European Convention on Human Rights, fractured his relationship with his children, and irreparably damaged the life he had been building in the Netherlands before his arrest.
The defence requested a ruling on his pre-trial detention before October 14th, following a previous hearing in July.
The last hearings of the case will be held on the 23rd of September.
Disclaimer
This document does not constitute an official court record; rather, it is a summary prepared in collaboration with the Nuhanovic Foundation, based on field notes gathered by its representatives during the court hearings. Please note that this translation is unofficial, published for informational purposes only, and should not be considered an authoritative legal document.
