Yesterday, the Rt Hon Ben Wallace MP, Minister of State for Security at the Home Office, argued that terror laws need to be updated so foreign terrorist fighters returning from Islamic State can be brought to justice in the United Kingdom.
While there is no doubt that prosecution is necessary in holding perpetrators to account, it is fraught with complications.
There are several routes to prosecute Islamic State fighters, including the United Kingdom encouraging Iraq to become a party of the Rome Statute and allowing the International Criminal Court (ICC) to prosecute there, the establishment of a new ad-hoc tribunal for the purposes of Iraq or Syria, existing ICC investigations into events in Libya pursuant to the Security Council’s referral in 2011, and jurisdiction over attacks on the areas where Islamic State held territory. The United Kingdom has an important role to play in strengthening access to justice, collecting and preserving evidence, and upholding accountability through capacity building.
The first complication, however, is that of evidence. Mr Wallace himself has stated “intelligence is not evidence” and to seek to prosecute people just on an intelligence case is a “slippery slope”.
Last year, I recommended that a new international legal task force be created to gather evidence on foreign fighters of Islamic State. This was later debated at the House of Lords. The collection of evidence to build cases against individuals must be strengthened within national justice systems in Iraq, Syria, Libya, and Nigeria: terrorist ‘hot spots’ where crimes have occurred.
Some have suggested that Bar Associations of the UK and the US should ‘assist’ in evidence collection and prosecution in countries where common law is practiced. However, Nigeria is the only common law country among the countries listed, therefore, Iraq, Syria, and Libya – key areas where terrorism has occurred – would be excluded from this proposal.
While a review of local legislation is an important first step, it does not go far enough. To prosecute foreign fighters effectively, the British government should lead on the creation of an international task force, which includes legal assistance from the UK, to document evidence of terrorism (including, but not limited to, the flow and creation of financial revenue; the ability to reward, recruit, and retain terrorist fighters; ideological propoganda) and assist in the gathering of evidence in conflict ridden countries where terrorist groups such as Islamic State and Boko Haram are prevalent. Groups such as Islamic State have kept extensive records of fighters and their backgrounds, which can be used to gather and inform evidence for potential further investigation and potentially prosecution. The proposed task force must assist both with documentation and with prosecutions, by providing legal training and practical assistance.
A multi-faceted approach will be required. The International Legal Task Force can work with nongovernmental organisations (NGOs), charities, and embassies on the ground to better track the overlap between violence, human trafficking, and terrorist organisations, for example. It is important that victims of terrorism – including those who have been subject to sexual violence, trafficking, or genocide as a tactic of terrorism – continue to work with NGOs and organisations that they trust, and funding must be tailored to support these groups. This information will better inform assistance, reparations, and justice given to victims of terrorism.
One example would be to monitor and create a log of individuals trafficked and traded by terrorist and trafficking groups who are found in trafficking ‘hot spots’: a register treated with the highest degree of confidentiality to ensure protection of those who have been forthcoming with information of their experiences. The European Migrant Smuggling Center (EMSC), a division of Europol, have already begun to do this by mapping criminal organisations that facilitate smuggling. Europol’s research indicates that 90% of these migrants have their journey facilitated by a criminal organisation, some of which overlap with terrorist groups.
The second complication is in terms of our existing legal toolkit.
In 2014, the Henry Jackson Society, where I am the Director of our Center on Radicalization and Terrorism, argued that treason laws could be used against foreign terrorist fighters.
Policy recommendations outlined in the paper included the use of the treason law as a ‘high-profile mechanism’ for deterring foreign fighters, and sending a strong message about the type of behavior the British state will tolerate from its citizens. The report also argued for allowing passport confiscation without Royal Prerogative and with an independent oversight mechanism, as well as more widespread use of Terrorism Prevention and Investigation Measures (TPIMs) on aspiring fighters.
The report was ahead of its time, and including a standardized protocol for all returning fighters with a range of measures commensurate to the threat posed, ensuring a minimum standard of contact as well as a focus on prosecuting the online promotion of IS materials by UK-based extremists.
While some of these proposals are now being utilized, others, such as the introduction of a national counselling service to help support the families of returning or aspiring foreign fighters, have yet to be introduced.
With more than 900 individuals from the UK travelling to engage with the conflict in Syria, we must ensure that robust evidence and legal tools are used against those who continue to pose a threat to our national security.