Returning Foreign Fighters – what are the ethical and practical responsibilities?

The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the University of Birmingham

“Now that so-called Islamic State - Daesh by its detractors – is rapidly losing territory, control and support, the question of ‘what next’ enters our mind.”  

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Now that so-called Islamic State - Daesh by its detractors – is rapidly losing territory, control and support, the question of ‘what next’ enters our mind. While Iraq faces a substantial rebuilding and stabilisation process, one that will take decades, the UK must also take stock of the role her citizen’s played in the carnage. The Defence Secretary’s response in December have been identified as inadequate.

There are approximately 5,000 European citizens who have travelled to Iraq and Syria as ‘foreign fighters’, of which approximately 800 are British. Of these approximately 20% are women and children. This does not include the children born in Iraq and Syria to foreign fighters. The challenge is to understand why they’re seeking to return (if they are), and whether they pose a security risk should they do so, and whether or not they’ve committed any crimes.  

Option 1: Leave Iraqi Criminal Justice System to deal with them

Despite high profile prisoner exchanges leading to release for some fighters, this appears to be the current situation for many.  The Iraqi constitution contains important safeguards for those remaining. These include the right not to be subject to arbitrary detention, the right to a fair trial, and the right not to be subjected to torture or degrading treatment. However, the criminal justice system in Iraq is stretched and weak. Reports from NGOs reveal consistent failure to uphold its international obligations, and importantly Iraq applies the death penalty for a range of offences. There are legal arguments to insist that the UK is at the very least not complicit in the death penalty, and in 2017 the UK stated “It is the longstanding policy of HMG to oppose the death penalty in all circumstances and we aim to do everything we can to prevent the execution of any British national anywhere in the world”. For justice to be served, we must be certain that convictions are sound, fair, and based on observing the rule of law, and there are no guarantees of that in Iraq. 

Option 2: Let them be tried by the International War Crimes

The problem with this option is that it is not really an option. The Prosecutor of the International Criminal Court, Fatour Bensouda, has clearly argued that it did not have territorial jurisdiction over the crimes allegedly committed by ISIS foreign fighters.  Moreover, the ICC sees its remit to investigate those responsible for mass atrocities – namely the leaders of Daesh. Despite their alleged crimes, UK citizens are not identified as ring-leaders.

Option 3: Return home with due regard to the rule of law

There are challenges with this option because of questions about sufficient evidence, jurisdiction, and ambiguity about returnees’ status. There is ambiguity as to whether those who travelled qualify as ‘foreign terrorist fighters’ as per UN Security Council Resolution 2178. Some may have been compelled to travel (often wives and children), and others may have supported Daesh through non-violent means, while others appear to have participated in horrific acts. This complexity requires a case-by-case approach to decide proportional responses and appropriateness of criminal investigations. These should be matters for the police and courts to determine, not politicians or the media. 

After the courts have established what appropriate action should be taken, there follows a reintegration imperative. This is the reestablishment of social, familial and community ties and positive participation in society. Reintegration is important for the longer term reduction of risk of radicalisation – both for the individual and wider society. This is part of building resilience, so that we do more than deter and punish, but actively create a better shared future.

Answer: Returning home

Option 3 alone addresses all 3 components of radicalisation: extreme belief, extreme belonging and extreme behaviour. We cannot eliminate the risk of terrorist behaviour entirely. Yet by bringing home, and observing the rule of law for those who travelled to Daesh, we can reduce that risk and do more. It also challenges the extremist belief that the West doesn’t care about Muslim citizens or that our support of human rights is window dressing rather than conviction. It also minimises the risk of radical belief and belonging transferring to next generation through reintegration. It has been demonstrated elsewhere  that upholding human rights and rule of law do not hamper our ability to act but enhance it, and are essential  to long-term success. It shows a positive engagement of belonging, rather than a politics of fear; a willingness to defend what we live for, not just that we live. 

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