Prosecute returning ISIS fighters

by Geoffrey Johnston (feat. Kyle Matthews)

The Kingston Whig
December 14, 2017

The Islamic State has been defeated on the battlefields of Iraq and Syria, causing the jihadist organization's so-called caliphate to collapse.

Fighters from the Islamic State -- also known as ISIS, ISIL and Daesh -- are fleeing the Middle East, and many are returning to their countries of origin in Europe, Canada and elsewhere.

According to mass atrocities prevention expert Simon Adams, "ISIS is not just a terrorist organization." He also describes ISIS as a group that has "committed war crimes and crimes against humanity across Iraq and Syria."

In addition, "it has also committed genocide against the Yezidi," said Adams, who is the executive director of the Global Centre for the Responsibility to Protect, based in New York City.

"I think it is imperative that all ISIS members who are responsible for perpetrating atrocities be brought to justice, wherever and whenever they are captured," he continued. "They can flee the battlefield in Iraq or Syria, but they should not be allowed to escape international justice."

Ewelina Ochab, a legal researcher and genocide expert, agrees.

"They should and must be brought to justice," said Ochab, author of the 2016 book Never Again: Legal Responses to a Broken Promise in the Middle East.

Ochab has been to Iraq to collect evidence of genocide and interview survivors. For example, she met with displaced Christians in Erbil, which is in northern Iraq. She also visited a number of liberated towns and villages that had previously been under ISIS occupation, including Quaragosh, Karamless and Bartallah.

"Many of the fighters committed various acts that can amount to genocide, war crimes and crimes against humanity," stated Ochab, who is a PhD candidate in international law, human rights and medical ethics at the University of Kent in the United Kingdom.

"However, even if they have not committed such crimes themselves, or there is not enough evidence to secure a conviction for such crimes, they can be prosecuted for belonging to a proscribed organization or supporting a proscribed organization," Ochab said of Islamic State members.

"Allowing them to walk free begets more crime. Allowing them to walk free disrespects the memory of the victims and the dignity of the survivors."

No impunity

The Canadian discussion of what to do with returning ISIS fighters is taking place within the context of a wider international debate. For example, the United Kingdom is taking an extremely hard line with British citizens who are ISIS members fighting abroad.

"The U.K. defence secretary has made the very controversial statement that former ISIS fighters should be hunted and killed," said Noelle Quenivet, an associate professor in international law at the University of the West of England.

According to Quenivet, it is important to distinguish "between individuals who have fought for ISIS but may not have committed any crimes and those who have committed crimes." She explained that under international law, "there is no criminal liability for simply being a member of a group. Such criminal liability might, however, exist under national law, for example, membership of a terrorist organization."

However, there is criminal liability in international law for crimes such as genocide, ethnic cleansing and atrocities, said Quenivet, who is the co-author of 2015 book entitled European Union Law.

"Individuals can be prosecuted not only for having committed the crime as such but also for having aided and abetted in the commission of the crime," Quenivet said.

She explained that the International Criminal Court Statute (the Statute of Rome) "specifically recognizes that an individual can be held liable for contributing to the commission of a crime or an attempted crime by a group but he/she must make a 'significant contribution' toward the crimes committed or attempted."

Islamic State members "who have perpetrated war crimes, crimes against humanity and/or genocide should be brought to justice," Quenivet said. "These are international crimes that can and should be prosecuted by all States and not only the State of nationality of the ISIS fighter."

Quenivet points out that the preamble of ICC Statute declares that it's the "duty of every State to exercise its criminal jurisdiction over those responsible for international crimes." However, she said that "the most difficult hurdle is to gather enough evidence to mount a prosecution against such individuals."

"Over the last year, there have been a number of positive steps taken by international institutions to ensure that the Daesh fighters will be brought to justice," Ochab said.

"On Sept. 21, 2017, the UN Security Council passed a resolution to establish a new Investigative Team to collect, preserve and prepare the evidence of the Daesh atrocities committed in Iraq for any future prosecutions," Ochab noted. "Preserving the evidence is the first and crucial step to ensure that the fighters will be prosecuted in court."

Holding ISIS fighters to account for atrocities committed in Syria is more complicated, Ochab said. She pointed out that Russia has vetoed several UN Security Council resolutions regarding Syria.

"This is why the UN General Assembly passed its own resolution establishing a new mechanism to assist in the investigation of serious crimes committed in Syria since 2011 -- this included the atrocities perpetrated by Daesh, next to the crimes committed by the Syrian regime and many others," she explained.

Prosecute or reintegrate returning terrorists?

Should ISIS fighters returning to Canada be brought to justice for joining the Islamic State, for participating in genocide, or being part of an organization that committed atrocities and ethnic cleansing?

"Yes, yes, and yes," replied Kyle Matthews, executive director of the Montreal Institute for Genocide and Human Rights. "We should prosecute everyone returning from Iraq and Syria that is believed to be with ISIS, or any other non-state actor that took up arms and committed violence for whatever political motive.

"This week we have a young Montreal couple who are being prosecuted for trying to leave Canada to join ISIS," Matthews added, referring to the case of Sabrine Djermane and El Mahdi Jamali. And he believes the case demonstrates an obvious inconsistency in government policy.

Canadians who have tried to leave the country to join ISIS or commit terrorist acts overseas are being detained and prosecuted by Canadian authorities, "but those who did end up leaving, and are coming back, are not [being prosecuted]," Matthews said.

Instead of prosecuting returning jihadists, the Canadian government has indicated that it prefers to reintegrate ISIS members into Canadian society.

"Almost every male that was there [Iraq and Syria], took up arms and carried out atrocities," Matthews asserts. "I really think we have to seek justice first. After seeking justice, try rehabilitation, or try to reprogram these people, so they don't commit violent acts here."

"I strongly believe that this is not the way forward," Ochab said of Canada's reintegration policy. "Reintegration into the Canadian society should be undertaken after the individual has served their time for their involvement in the crime, and only once it is established that the individual does not constitute a danger to the society," she stated.

Nuremberg comparison

Are there parallels between hunting down Nazis after the Second World War and putting them on trial at Nuremberg, and the prosecution of ISIS members for genocide and other crimes?

"Of course, the scale of the atrocities [committed] by Nazi Germany were at the industrial level," Matthews said, comparing the Nazis to ISIS. "But when it comes down to it, the crimes that were committed were the same. The crimes of genocide are the same "¦ I still think we should look at it the same way."

Simon Adams also believes there are similarities between prosecuting the Nazis and ISIS.

"While Nuremburg was a flawed process, it was still an enormously powerful and righteous legal undertaking," he said.

"ISIS used to love to send videos across the internet glorifying its fighters who were committing atrocities. I'd like to see viral videos of ISIS leaders in handcuffs, in a court, facing international justice and the verdict of history," Adams declared.

Matthews does not understand the Canadian government's reluctance to bring ISIS members to justice.

"What is so shocking about trying to hunt these people down?" he asks.

"Justice is justice," Matthews continued. "We wouldn't be having this conversation if we had a far-right Nazi problem, with people going off and killing minorities in Africa. We would prosecute them."

Since being routed on the battlefields of Iraq and Syria, some ISIS fighters have fled to Europe, Africa and South Asia. And Matthews contends that an international effort is required to find and capture them. For example, Matthew recommends scanning social media to identify ISIS fighters and for evidence of atrocities.

There is a new precedent for using social media in the prosecution of mass atrocity cases. Currently, the International Criminal Court is prosecuting Mahmoud Mustafa Busayf Al-Werfalli, who commanded the Al-Saiqa Brigade in Libya. He is alleged to have been responsible for the executions of 33 people at Benghazi.

On Aug. 15, 2017, the International Criminal Court issued an arrest warrant for Werfalli. For the first time in legal history, the ICC warrant was based on evidence, in part, discovered on social media. According to the arrest warrant, the ICC is using "social media posts by the Media Centre of the Al-Saiqa Brigade" as evidence.

National Security threat

Are returning ISIS members a threat to Canada's national security?

"I would say, yes," Matthews replied. And he pointed out that returning terrorists possess combat skills and knowledge of improvised explosive devices. "I would treat everyone who went there [Syria/Iraq] with suspicion that they're dangerous.

"They're not coming back because they were disillusioned," Matthews said of Canadian members of ISIS. "They're coming back because their project failed. If they were still winning, they'd probably all be there now."

Canada has formally acknowledged that the Islamic State has committed genocide against the Yezidi people.

"As this genocide is recognized, Canada has clear obligations under the UN Convention on the Prevention and Punishment of the Crime of Genocide to punish the perpetrators," Ochab declared. "If Canada fails to do that, Canada will be in breach of its international obligations."

According to Noelle Quenivet, "under international law, States are obliged to let their nationals enter their territory, which means that States cannot deny ISIS fighters the right to return to their home countries." But that doesn't mean welcoming them with open arms.

"If such individuals arrive at the border, they should be arrested and, if there is enough evidence, charged with the relevant crimes under either international or national law," Quenivet said. "States are not powerless."

However, Quenivet said the sooner states start gathering evidence of crimes perpetrated by ISIS members, "the more likely they will be to act in an effective manner." And she contends that "the dearth of evidence at the time of the arrest may in fact lead to an individual being released in the community where they might engage in terrorist activities."

Evidence collection

How can nation-states gather the evidence necessary to prosecute their citizens who joined ISIS and went overseas to partake in jihad? Ochab points out that both the UN General Assembly and UN Security Council have passed resolutions "establishing new mechanisms that would collect the necessary evidence."

Ochab believes it is "crucial that states support the initiatives, whether providing financial assistance to make the work of the mechanisms possible or by offering their experts to do this crucial job of collecting, preserving and preparing the evidence for any future prosecutions."

However, evidence collection has been fairly disorganized thus far.

"Until now, the evidence has been collected by numerous actors," Ochab observed. "This means fragmentation of the evidence. This means that some of the evidence may not be collected the right way and so may not be admissible in the future prosecutions."

Ochab has gathered evidence of genocide in Iraq and interviewed survivors, submitting the evidence to the International Criminal Court and a number of United Nations bodies.

"After one of the trips to Iraq, I also presented the evidence at the UN Forum on Minority Issues in Geneva," she said.

Meanwhile, Ochab is "planning yet another trip to Iraq" to gather additional evidence of genocide.

"Generally speaking, I prefer the new mechanisms to collect the evidence -- once and for all -- rather than several researchers, NGOs, etc., collecting it numerous times," she said. "However, such fact-finding trips are very beneficial in terms of being able to advocate on behalf of the persecuted people."

Similarly, Matthews said it is imperative for Canada and other states to co-operate with Iraqi authorities when gathering evidence for prosecutions of ISIS members. And he contends that the U.S.-led coalition that is fighting ISIS has gathered large amounts of information and data that could be useful in prosecutions.

"ISIS left a very detailed paper trail," Matthews said. "I think we need to be looking at that."

Justice can be contagious

"There can be no impunity for those responsible for overseeing, inciting or ordering mass atrocities," Adams said.

According to Matthews, individual members of ISIS cannot escape culpability for the crimes of the Islamic State by claiming that they were just bus drivers or cooks.

"People who were cooks, or provided material support, individuals in that group do have blood on their hands," he said. "Everyone who joined that project is guilty of what that group did."

If Canada doesn't prosecute those Canadians who joined ISIS, Matthews believes it sends "a very terrible message" to others who might be contemplating joining this group in the Philippines or in South Asia or parts of Africa.

"Impunity begets impunity," said Adams, cutting to the heart of the matter. "But international justice can be contagious, too."