What if we can’t prosecute returning terrorist ‘foreign fighters?

A version of this piece appeared in the Globe and Mail online on September 25, 2019.

In much of the debate over what to do with ‘Jihadi Jack’, who is now all ours thanks to the UK decision to revoke his citizenship, a lot of arguments for and against repatriation were made. One of the main positions for the former was the conviction that we should bring back these terrorists and try them here in Canada.

The rationale underlying this stance was based on the belief that Canadian courts, and not foreign ones, should rule on Canadians who left to join terrorist groups and that some of those foreign jurisdictions practice capital punishment or are incapable of ensuring a fair trial (implying that our systems were better than theirs, i.e. Iraq or Syria). Complicating the whole issue were the Kurds who hold many foreign terrorists and who have clearly indicated that they cannot process these cases due to a lack of infrastructure.

All things considered then, it seems that repatriation is possible, with a view to charging and trying these Canadians (I will leave the ‘moral obligation’ to do so aside). For its part the government claims, rightly, that it has no legal duty to repatriate any Canadian who has allegedly committed offences abroad and further maintains that conditions are too dangerous in northern Iraq/Syria to send officials to effect removal (this is a little disingenuous as Canadian journalists and academics have made those same trips to interview incarcerated IS terrorists).

But is repatriation the best resolution? Perhaps not. According to a recent Globe article, the RCMP is currently not sending investigators into Syria where Canadians alleged to have joined the Islamic State are trapped in camps and prisons. What this means could have a significant impact on possible future prosecutions.

While it is probable that some if not all of the returnees are under current investigation – the RCMP will of course neither confirm nor deny it is engaged in this regard – it is nonetheless also true that by limiting its evidence gathering to this country the Mounties are also not getting the full story. It is one thing to interview witnesses, run human sources and get wiretaps here: it is quite another to talk to those who saw what the terrorists did in theatre. Charges based on the former are not out of the question but a stronger case would undoubtedly be made based on the latter.

Why would the RCMP elect not to send officers to where the terrorist activity unfolded, other than the safety factor? There is also the discomfort of having to interact with local law enforcement and national security agencies which we all know practice counter terrorism in ways abhorrent to Canadians. Does anyone think that post Maher Arar and post Iacobucci any Canadian national security body can talk to, and receive evidence from, such partners?

As a result, cases brought forward to trial will be weaker and the odds of acquittal are higher. If a swath of acquittals ensue there would be two likely outcomes. Firstly, Canadians would be livid at our inability to adequately process terrorists, allowing them to roam free. Secondly, future terrorists would receive the clear message that choosing to engage with such groups incurs no penalty.

What of the threat to Canada from these free terrorists? Studies have shown that a very small percentage of returnees go on to commit violent acts back home. The threat is not zero, however, as both France and Belgium have learned (2015 attacks in Paris and 2016 attacks in Brussels were carried out by returnees).

There thus appears to be no good option. Doing nothing may be legally acceptable but we have learned that courts look disparagingly on governments that do not act to rescue alleged Canadian terrorists abroad, resulting in lawsuits . Bringing them home may result in no convictions, a higher domestic threat level and a blatant illustration that we are terrible at prosecuting terrorism in Canada.

In this light perhaps the ‘leave them there’ is indeed the optimal solution.

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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