A new international criminal court to try ‘foreign fighters’?

So we continue to wring our hands over the fate of our citizens who fought with Islamic State (IS) and other terrorist groups, primarily in Syria and Iraq but in other conflict zones as well. On the one hand is the crowd that says “let them rot in some Syrian hellhole for what they did: they aren’t real ______ (fill in the blank: Canadians, Brits…) anyway”. On the other we have those best summed up by JT – Prime Minister Justin Trudeau: “a Canadian is a Canadian is a Canadian”, i.e. we have obligations to help these people. Beyond consular obligations it is far from clear to me what the government of Canada absolutely HAS to do with those from among us who figured becoming a terrorist was a good career move, but I will leave the legal (and Charter) wranglings to those much more qualified to rule on this.

As I and many others have noted on multiple occasions, one of the hardest challenges is how to bring these idiots to justice. All of the difficulties in this regard are known: collecting evidence in a war zone, differentiating between intelligence and evidence, weighing one country’s jurisdiction against another, accepting failed court cases, and determining the risk level of bringing terrorists ‘home’. None of this is easy and when you add in the public’s near universal opposition to lifting a finger for these terrorists you can see how tough all of this really is.

Into the mix I can now add the possibility of the creation of an international court to hear these cases. I came across, thanks to one of my fellow Twitter users, an article in which a spokesperson for the mostly Kurdish Syrian Democratic Forces (SDF) – which by the way are holding upwards of 900 terrorists from 45 countries – raised the possibility of “an international court specialized to terrorism here in North Syria, or in Iraq to try these mercenaries who have committed crimes against humanity and against the Iraqi and Syrian peoples.”

Now there is an interesting idea. Create something with a narrow, time-limited mandate, akin to the International Criminal Tribunal for Rwanda which was tasked with bringing to justice those responsible for the 1994 genocide in that country (the tribunal dissolved at the end of 2015). Would it work?

I am no legal expert but I see a whole bunch of problems with this suggestion, including:

is northern Syria really a stable enough place to house such a court?
what laws would apply? Syrian? Iraqi? International?
how would evidence be collected? Would not the obstacles we already face in this regard merely be transferred to the new court?
where would convicted terrorists be held?
what would happen to those for whom not enough evidence was available to get a guilty verdict? Would they return to their home nations? Would those nations accept them?
who would defend these terrorists?
who would pay for all this?
would this satisfy international anger over what IS did and what role the so-called foreign fighters played?
And I am sure there are many more such questions.

Then again, a court of this nature would show terrorists and terrorist groups that even if they acted in barbaric, subhuman ways, we don’t have to. We can apply the rule of law, the very rule of which they rejected. This has some merit in my view.

I have no idea whether this idea will get picked up by anybody but I do think it is worth considering, the huge obstacles and opposition notwithstanding. After all, what better way – aside from just killing terrorists which many would support – than to force these extremists to bow down to the very civilisation they sought to destroy? Now there is justice, poetic or otherwise!

By Phil Gurski

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting Ltd. Phil is a 32-year veteran of CSE and CSIS and the author of six books on terrorism.

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