The upside of foreign fighter policy Down Under

This piece appeared in The Hill Times on November 12, 2018.

Australia and Canada are very similar countries in many ways.  Both former British colonies, both (relatively) open to immigration, both members of the 5 eyes intelligence community.  I have visited Australia on many occasions and I must admit that I always feel at home there – even if their accent is a bit off (I am quite sure they say the same about mine!).

The two countries also face a very similar threat from Islamist extremism.  There have been a few successful attacks and many foiled ones thanks to the efforts of both nations’ law enforcement and security intelligence agencies (ASIO and AFP in Australia and CSIS and the RCMP in Canada).  When it comes to the so-called ‘foreign fighter’ issue – i.e. Australians and Canadians who left to join terrorist groups primarily, but not exclusively, in Iraq and Syria (primarily but not exclusively Islamic State (IS)) – we have a similarly-sized problem.  Both nations are looking at a few hundred citizens who made this boneheaded choice.  And both are trying to figure out what to do with those who are still overseas or have returned home.

As Canada struggles with the challenge of collecting enough evidence in a war zone to charge returnees and put them away, perhaps we can learn from our friends Down Under. The Australian government has initiated what it calls a ‘Declared Area Offence’, meaning “an offence for a person to intentionally enter, or remain in, a declared area in a foreign country where the person knows, or should know, that the area is a declared area.”  Furthermore, “The (Australian) Minister for Foreign Affairs may declare an area in a foreign country if they are satisfied that a listed terrorist organisation is engaging in a hostile activity in that area. Australia’s security and intelligence agencies are responsible for providing advice to inform the Minister’s decision.  The government is concerned about Australians who travel to conflict zones and return to Australia with skills and intentions acquired from fighting or training with terrorist groups. The areas targeted by the ‘declared area’ provisions are extremely dangerous locations.”

In other words, it is an offence under Australian law to even travel to an area defined as such, irrespective of what you do there.  This would help us to rightfully ignore all the “I just drove the bus”, “I just served tea” or “I was a shoemaker” excuses that returnees declare (unbelievably with a straight face!).  The mere act of travel to a designated area would become a crime.  Some may argue that this is a violation of ‘freedom of movement’ rights but  I am pretty sure that Canadians would agree that going to Mosul in 2014 (or Al Shabaab-controlled areas of Somalia or Taliban-controlled areas of Afghanistan – hello Joshua Boyle!) is not just the exercise of poor judgment but indicative of a desire to join or assist in the activities of a terrorist group.

Would this kind of law fly in Canada?  Would it pass a Charter challenge?  To be honest I have no idea but I think the idea is worth pursuing.  Of course there would be much to establish.  What areas are ‘designated’?  Who decides which ones (in Australia the intelligence services play a big role – does that mean CSIS in Canada?)?  Is this a type of reverse onus law?  Are we ok with that in a system where guilt is assumed, not innocence?  When and why would an area be declared ‘undesignated’?  And I am sure there are many, many more questions.

It will be interesting to see whether this approach has legs. I have learned from a trusted source that some on Parliament Hill are taking a look at it.  This is a good thing as the current government seems to be engaged in a combination of doing nothing, doing something and ragging the puck on the issue of returnees.  In fairness, this is a very hard challenge and I for one am tired of the refrain “Just bring them home and let CSIS/the RCMP watch them” as this ‘advice’ betrays a serious lack of understanding of how these agencies do their jobs and the resources ‘just watch them’ entails.

This problem is not going away folks. More IS fighters will trickle home.  Others will leave – or try to leave – for future conflict zones (an issue I covered at great length in The Lesser Jihads).  We could do worse than examine closely what our good antipodean friends are doing.

Phil Gurski is a former strategic analyst at CSIS and the Director of Security and Intelligence at the SecDev Group in Ottawa.

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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