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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  • David P
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    1. At 1:59PM on 12 July 2018, David P wrote

    The author rightly asks are British citizens / residents who have fought in Iraq and Syria, labelled as ‘foreign fighters’ (FF) “coming home”, do they pose a security risk and have they committed any crimes?

    Yes an estimated 800 FF went, many have already returned. In May 2014 ICSR estimated 250 in May 2014; 300 in November and in January 2018 officialdom referred to 400. Many of those I would expect did not join ISIS / Daesh and fought for other groups mainly in the Syria civil war.

    How many of these returnees have been prosecuted? In March 2016 a BBC News project identified 160 had left the UK; 36 were dead and 13 had been convicted. In October 2017 Lorenzo Vidrino, an academic expert, found 400 had returned and 54 had been convicted.

    I would contend that those who fought and returned from Syria to date have mixed motives for doing so. Are they the same as those who may return from ISIS?

    No, ISIS is a barbaric terrorist group, which has supported death and destruction here in the West. Many of those who left the UK went onto state their rejection of Western society, proclaiming their hatred of us and even more so of their fellow Muslims who failed to see the world as they did. They have detached themselves from their families, community and country.

    Do we really want them “coming home”? Will their former families and communities enable ‘reintegration’? That is a very moot point. Even more so when one considers the reports that the Libyan community in Manchester expressed concern over the Arena attacker. Let alone when we consider the two hundred and fifty dead in Belgium and France in 2016.

    Reintegration - currently there is little sign that the UK government has a proven, working strategy for reintegration – which was only recently announced in the updated Operation Contest strategy. Will ISIS generation returnees consent to such a process? The Canadian Peace Bonds could offer a way to enforce compliance with good behaviour. See: http://www.justice.gc.ca/eng/cj-jp/victims-victimes/factsheets-fiches/peace-paix.html

    Yes those who fought with ISIS may have committed crimes abroad, contrary to UK counter-terrorism law. It is very likely that there is little or no evidence to enable a prosecution. Those who went to ISIS often hide their identities; for some that was not successful and they were identified – for lethal, extra-territorial measures.

    Would the return of the ISIS generation of FF reduce the risk? There is some academic evidence, notably by Thomas Hegghammer that only a few returnees – from jihadist groups before 2010 – in the past have gone onto mount attacks. In February 2015 he identified ten plots, with twenty returnees. Link: http://hegghammer.com/_files/Hegghammer_-_Should_I_stay_or_should_I_go.pdf

    Attacks by those who have experience, training and commitment are far more lethal. See the chart for Jihadist attacks in the West here: https://warontherocks.com/2017/04/lone-actor-vs-remote-controlled-jihadi-terrorism-rethinking-the-threat-to-the-west/

    How many attacks like Manchester Arena could we as a nation take? For that reason alone we should not enable the return of those who joined ISIS and fought for them. We are building resilience and public safety by excluding them. Not weakening them as the author argues here.

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