The Iranian secret service liquidated Iranian dissidents in the Netherlands. Chinese scientists paid for and influenced human rights research at the VU University in Amsterdam. Russian spies tried to steal information from the OPCW (the UN organization against the proliferation of chemical weapons) in The Hague.
It all happened in the last ten years – and according to the cabinet it is the tip of the iceberg. Minister Dilan Yesilgöz (Justice, VVD) therefore wants to be able to do more against foreign espionage. On July 8, just before the cabinet went into recess, Yesilgöz sent a – according to experts quite drastic and far-reaching – bill for advice to the Council of State. There is criticism from both the professional practice of intelligence and the legal world.
“Endangering Dutch interests through espionage must be severely punished,” said the minister. “That is why it is good that a maximum prison sentence of 8 years can soon be imposed on persons who carry out espionage activities for a foreign government,” she writes.
Espionage should be severely punished
Dilan Yesilgoz Minister of justice
The concept of espionage is broadened in the bill. Where in the past a foreigner had to steal state secret information in order to risk imprisonment, this can soon also be imposed if he or she ‘just’ lends a hand. Smuggling documents or a package across the border, blackmailing someone to help, can all be punished in the future because those activities endanger the national security of the Netherlands. The same goes for targeting unrest through social media during national elections, or encouraging disruptive actions by farmers, for example, to name just a random group.
Also read this opinion article by Hugo Vijver: Excess supervision harms intelligence work
Police influence
The plan for broader criminalization of espionage was already included in the coalition agreement of the current coalition. So far, it’s been pretty quiet around the bill. Wrongly, according to publicist and intelligence specialist Hugo Vijver. “I wondered: do we really want all of this,” says the former Defense and AIVD employee. Vijver contributed to, among other things, the Intelligence and Security Services Act of 2017.
Pond sees three major problems. He fears greater influence from the police. It will play a greater role in detecting activities in this area. After all, the AIVD ‘only’ collects information, the police tracks down and arrests. “I wonder if the police are interested in this,” says Vijver. It is a phenomenon with which she has little experience. ‘After all, possible espionage or unwanted influence, such as around such a human rights center at the Vrije Universiteit, often involves an extremely subtle process. The only question is when criminal acts will occur. Intelligence agencies are adept and experienced in following such a process, the police are not.”
Second, Pond questions the recent introduction of a ‘knowledge security’ hotline for the academic world. This is ahead of planned legislation. Scientists can report suspicious activities to the hotline. The same applies to international cooperation agreements on knowledge transfer that can be misused by foreign powers. There may even be a reporting requirement for this.
Isn’t that approach too firm and too general, Vijver wonders, especially for the university world, which relies on the free exchange of knowledge? Vijver: “At companies such as chip machine manufacturer ASML or suppliers to the Ministry of Defense, everyone understands the need to report to the government. But at universities? Of course, scientists can become even more aware of the potential usefulness of their knowledge to foreign powers. But the services are already helping to improve that awareness with, for example, targeted information for sectors where it really matters.”
Information freedom
While specialists from the intelligence practice on the one hand and lawyers on the other, often clash when assessing legislation on secret services, the situation is different here. Ponds point of criticism is in line with a recent comment from legal journal Ars Aequi on the bill. The authors wonder to which problem the bill offers a solution. They also state: “In particular, criminalizing the provision of information is at odds with the right to freedom of information.”
The Dutch Bar Association also sees problems and, like Vijver, considers the approach too broad. “For a fairly far-reaching proposal such as this one, the substantiation is meager”, wrote the professional association during the so-called internet consultation on the bill of Justice. The Association believes that the government does not specify and define the national interests that are under threat (such as vital infrastructure, integrity and exclusivity of high-quality technologies) too little; the same applies to acts that will soon become punishable if it is up to the minister. “As a result, the envisaged provision does not offer sufficient legal certainty”, according to the Bar Association.
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Also read: The Netherlands will not become much safer after the expulsion of 17 Russian spies
reprisal
Finally, former AIVD officer Vijver wonders whether the possible consequences for relations with large countries have been well thought out. “In practice,” he says, “it may happen that mainly Chinese and Russians are arrested on the basis of the new bill. Because especially those large countries are active in these activities. Until now they were sent out of our country if they were caught, that could change. But I don’t think big countries let any arrests pass easily. As a reprisal, they may pick up and detain Dutch spies.”
A version of this article also appeared in the newspaper of 25 July 2022
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