tag:theconversation.com,2011:/fr/topics/foreign-fighters-11215/articlesForeign fighters – The Conversation2022-08-25T03:05:42Ztag:theconversation.com,2011:article/1893672022-08-25T03:05:42Z2022-08-25T03:05:42ZWith the death of a Kiwi fighter in Ukraine, should the government make it harder for volunteers to go?<figure><img src="https://images.theconversation.com/files/480960/original/file-20220824-15462-pwpqn5.jpg?ixlib=rb-1.1.0&rect=25%2C3%2C2092%2C1406&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Getty Images</span></span></figcaption></figure><p>Dominic Bryce Abelen has been described as a “<a href="https://www.todayfm.co.nz/home/national/2022/08/tova-obrien-spoke-to-the-fallen-soldier-while-in-ukraine-here-is-some-of-that-conversation.html">warrior until the end</a>”. He is also New Zealand’s first serving soldier to be killed fighting in Ukraine. His death puts renewed focus on the status of foreign fighters in that war. </p>
<p>Abelen was off duty from the Royal NZ Infantry Regiment’s 2/1 Battalion and one of <a href="https://www.stuff.co.nz/national/300670217/kiwi-soldier-killed-in-ukraine-was-a-warrior-until-the-end">many former or current</a> New Zealand Defence Force (NZDF) soldiers in Ukraine. Like other volunteers, he will have felt a strong ethical duty to be there and believed he was defending a country against an indiscriminate and inhumane aggressor.</p>
<p>The <a href="https://www.theguardian.com/world/2022/feb/27/ukraine-appeals-for-foreign-volunteers-to-join-fight-against-russia">call by Ukrainian president Volodymyr Zelenskyy</a> for individuals to help has seen <a href="https://www.washingtonpost.com/world/2022/03/03/zelensky-ukraine-16000-foreign-volunteers-russia/">thousands of foreign fighters respond</a> since Russia invaded six months ago. Russia is playing the same game, actively recruiting <a href="https://www.bbc.com/news/world-60947877">mercenaries</a> and <a href="https://www.bbc.com/news/world-europe-60705486">foreign volunteers</a>.</p>
<p>The upshot is that hundreds of New Zealand volunteers <a href="https://www.newshub.co.nz/home/new-zealand/2022/03/over-500-kiwis-volunteer-to-fight-for-ukraine-international-legion-against-russia-despite-a-do-not-travel-warning.html">may be in Ukraine</a> right now, despite the very limited assistance their government can give them. </p>
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<img alt="Shoulder of a New Zealand soldier's uniform." src="https://images.theconversation.com/files/480959/original/file-20220824-4398-v3gxfn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/480959/original/file-20220824-4398-v3gxfn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/480959/original/file-20220824-4398-v3gxfn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/480959/original/file-20220824-4398-v3gxfn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/480959/original/file-20220824-4398-v3gxfn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/480959/original/file-20220824-4398-v3gxfn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/480959/original/file-20220824-4398-v3gxfn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Dominic Abelen was on leave from the NZDF when he was killed during an operation to retake trenches from Russian forces.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com.au/detail/news-photo/new-zealand-soldier-looks-on-during-the-laying-of-the-news-photo/161044008?adppopup=true">Teaukura Moetaua/Getty Images</a></span>
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<h2>Walking a tightrope</h2>
<p>Two problems arise when volunteers from other countries join the fight on another nation’s soil. </p>
<p>First, the lines between what constitutes a lawful or unlawful fighter blurs, and warfare can often become particularly unrestrained.</p>
<p>Second, what starts out as a bilateral conflict turns into an international quagmire. </p>
<p>That is why the United States, NATO and allied countries like New Zealand have actively tried to walk a difficult tightrope – giving military support, but only up to Ukraine’s sovereign border.</p>
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Read more:
<a href="https://theconversation.com/ukraines-foreign-legion-may-be-new-but-the-idea-isnt-185082">Ukraine's foreign legion may be new, but the idea isn't</a>
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<p>So, New Zealand may <a href="https://www.beehive.govt.nz/release/nz-provide-additional-deployment-support-ukraine#:%7E:text=As%20part%20of%20New%20Zealand's,Minister%20Jacinda%20Ardern%20announced%20today.">provide military equipment</a> but cannot physically use it within the country’s borders. Military personal from the NZDF <a href="https://www.beehive.govt.nz/release/nz-sends-further-significant-deployment-support-ukraine">may also train Ukrainian soldiers</a>, but this must be done outside Ukrainian territory. </p>
<p>While these efforts mean New Zealand is not technically neutral, neither is it an active participant. It is a very fine line. And if NATO or its supporters became active participants, Ukraine could easily turn into a third world war. </p>
<p>If New Zealanders were to fight in Ukraine with official authorisation, it would effectively make New Zealand an active participant. New Zealand’s relationship with Russia would become very difficult. </p>
<p>To avoid a global conflict, then, there can be no officially sanctioned NATO (or Kiwi) boots on the ground.</p>
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<h2>The status of unofficial soldiers</h2>
<p>Assuming that critical boundary is not crossed, the question then becomes what to do about volunteers who go to fight without official permission or recognition. Two basic principles apply when considering the status of New Zealanders fighting in Ukraine: </p>
<ul>
<li><p>NZDF members who join to fight for another country without permission are on dangerous legal ground – a soldier <a href="https://www.legislation.govt.nz/regulation/public/1990/0078/16.0/DLM137416.html">cannot have two masters</a></p></li>
<li><p>a general principle applies that such fighters must not become mercenaries, a status prohibited by both <a href="https://ihl-databases.icrc.org/ihl/WebART/470-750057#">international</a> and <a href="https://www.legislation.govt.nz/act/public/2004/0069/latest/whole.html#:%7E:text=1.,the%20purposes%20of%20the%20Convention.">domestic</a> law.</p></li>
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<p>The key <a href="https://www.legislation.govt.nz/act/public/2004/0069/latest/whole.html#DLM304840">definition of a mercenary</a> is they make money “substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces” of the foreign country they’re fighting for.</p>
<p>If they’re caught, mercenaries don’t have the rights of genuine prisoners of war and can be executed. If the volunteer is a citizen or resident of the country at war, or they are a member of the armed forces of that country, they are not mercenaries.</p>
<p>For such reasons, countries such as <a href="https://www.theguardian.com/uk-news/2022/mar/06/britons-ukraine-fight-defence-chief-contradicts-liz-truss">Britain</a>, <a href="https://www.smh.com.au/world/europe/not-an-adventure-legal-fear-over-global-call-for-ukraine-volunteers-20220228-p5a06y.html">Australia</a> and the <a href="https://www.nytimes.com/2022/07/03/us/politics/american-combat-volunteers-ukraine.html">US</a> have tried to steer would-be volunteers away from joining.</p>
<p>So the status of New Zealanders fighting in Ukraine without official permission is difficult. Although a general <a href="https://www.safetravel.govt.nz/ukraine">travel warning</a> to avoid Ukraine has been issued, this doesn’t actually prohibit New Zealanders going. Nor does it prohibit them volunteering to fight.</p>
<p>There is something of an anomaly here, considering the lengths taken to prevent <a href="https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/00DBHOH_BILL60721_1/countering-terrorist-fighters-legislation-bill">volunteers joining terrorist groups</a> and to <a href="https://www.legislation.govt.nz/act/public/2019/0079/latest/whole.html#LMS258608">deal with those returning</a>.</p>
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<h2>Can NZ volunteers be stopped?</h2>
<p>In reality, whether the rules around foreign fighters in Ukraine are being followed is up for debate. </p>
<p>Russia is already <a href="https://www.theguardian.com/world/2022/jun/09/britons-sentenced-to-death-russian-occupied-ukraine-aiden-aslin-shaun-pinner#">taking a hard line</a> against foreign volunteers, conducting trials and promising executions. Captured New Zealand volunteers will likely face the same consequences – irrespective of whether they are wearing the uniform of the Ukrainian army.</p>
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Read more:
<a href="https://theconversation.com/there-is-little-to-stop-new-zealanders-leaving-to-fight-in-ukraine-but-few-legal-protections-if-they-do-179558">There is little to stop New Zealanders leaving to fight in Ukraine – but few legal protections if they do</a>
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<p>This is difficult for any government. Offering more equipment, training and humanitarian relief to Ukraine can be justified. But this can also encourage some that joining a “just” war themselves is the right thing to do.</p>
<p>There is no question the government must keep an exceptionally tight leash on any NZDF personnel who try to join the conflict. That cannot be tolerated.</p>
<p>The harder question is whether to take a firmer position against those outside the military who would voluntarily put themselves at risk – and in doing so, make this war even more complicated and dangerous.</p><img src="https://counter.theconversation.com/content/189367/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexander Gillespie does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>New Zealanders fighting in Ukraine are facing significant risks, with no official support from the government. The fighters’ motives may be noble but are they muddying the waters?Alexander Gillespie, Professor of Law, University of WaikatoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1795582022-03-18T01:21:19Z2022-03-18T01:21:19ZThere is little to stop New Zealanders leaving to fight in Ukraine – but few legal protections if they do<p>News that a New Zealand army veteran is <a href="https://www.rnz.co.nz/national/programmes/morningreport/audio/2018834698/army-veteran-travels-to-ukraine-to-train-volunteer-fighters">already in Ukraine</a> helping train civilian fighters, and more are <a href="https://www.stuff.co.nz/national/128078879/exnz-soldier-planning-ukraine-mission-it-could-be-a-oneway-trip">planning to travel</a> to the war zone, raises important questions about what is lawful and what the risks of such actions might be.</p>
<p>As the number of volunteers for the <a href="https://ukrforeignlegion.com/">International Legion for the Defense of Ukraine</a> rises to a reported 20,000 from over 50 countries, how does New Zealand respond?</p>
<p>Firstly, there is a difference between “foreign enlistment”, where someone joins another country’s armed forces, and what is often called “foreign fighting”, where someone takes up arms as an individual or volunteer in a group. </p>
<p>Foreign enlistment generally poses little problem. Its lawfulness depends on the domestic law of the person’s home country (does it allow citizens to fight for another country’s armed forces?) and the law of the destination country – for instance, does it allow non-citizens to enlist?</p>
<p>New Zealand does not generally prevent people joining another country’s military. In Ukraine, a 2016 <a href="https://cis-legislation.com/document.fwx?rgn=86889">presidential decree</a> made it possible for non-Ukrainian citizens to enlist in Ukraine’s armed forces, and in February this year it was announced the International Legion will form part of the nation’s armed forces. </p>
<p>In contrast to foreign enlistment, application of the law to foreign fighting – both internationally and domestically – has always been guided by the nature and context of the conflict, and has varied depending on what was at stake in different political moments in history.</p>
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<h2>Few barriers to volunteering</h2>
<p>In New Zealand, <a href="https://www.legislation.govt.nz/act/public/2004/0069/latest/whole.html">mercenary activities</a> are prohibited – but the law’s definition of a mercenary is relatively limited. Criteria include that a person must be motivated by private gain and be paid substantially more than local soldiers. </p>
<p>New Zealand’s <a href="https://www.legislation.govt.nz/act/public/2002/0034/latest/DLM151491.html?src=qs">terrorism suppression laws</a> are also relevant to foreign fighting, but these only apply if the person engages in terrorism. </p>
<p>Apart from these two categories, there is no specific law governing foreign fighting, and therefore nothing that prevents someone from volunteering to fight in Ukraine. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-does-it-mean-to-be-neutral-over-ukraine-and-what-responsibilities-come-with-it-179457">What does it mean to be 'neutral' over Ukraine – and what responsibilities come with it?</a>
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<p>This is in line with <a href="https://twitter.com/marnielloydd/status/1114848258847719424">international legal provisions</a>, which likewise do not explicitly prohibit “foreign fighting” in a general way, and different countries’ laws vary in their permissiveness.</p>
<p>Even if New Zealand has not taken stronger legislative steps to prevent volunteer fighting more generally, its government is certainly not encouraging it. New Zealand has advised against travel to Ukraine, and may not be able to provide consular assistance to citizens who choose to fight there.</p>
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<h2>Danger on all sides</h2>
<p>Under the <a href="https://blogs.icrc.org/law-and-policy/2022/03/17/armed-conflict-in-ukraine-a-recap-of-basic-ihl-rules/">laws of war</a>, someone fighting in Ukraine can be targeted by the other side. If they act only as a medic or first responder, they remain protected from direct targeting, but are nevertheless put at great risk of incidental harm. </p>
<p>Russia has also <a href="https://www.jpost.com/breaking-news/article-701157">reportedly threatened</a> to treat foreigners fighting in Ukraine as mercenaries and to refuse them prisoner of war status. Even if this is legally wrong, captured foreigners risk prosecution or worse by Russia.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/boycotting-russian-products-might-feel-right-but-can-individual-consumers-really-make-a-difference-178876">Boycotting Russian products might feel right, but can individual consumers really make a difference?</a>
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<p>War can also attract all sorts. There have been volunteers fighting on both sides in Ukraine since 2014, with both also claiming a heritage to the international brigades of the Spanish Civil War. Some of those foreign volunteer fighters in Ukraine have reportedly held <a href="https://russiamatters.org/analysis/ukraine-hub-international-white-supremacist-fighters">right-wing extremist</a> views.</p>
<p>There are also concerns that the experience of war may see volunteers bring violence back to their home country, as well as suffering long-term injury or other trauma.</p>
<p>Crucially, anyone fighting in Ukraine must follow international humanitarian law, including the Geneva Conventions. This requires respect for and protection of civilian populations, places such as hospitals, cultural property, neutral humanitarian workers and others protected by the laws of war (such as captured soldiers).</p>
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<h2>Risk of war crimes</h2>
<p>People fighting without adequate military training – including in the rules of war – is a major concern. Despite good intentions or bravery, war crimes can be committed. Civilians, who are already bearing the brunt of the conflict, or other people protected by the laws of war, may end up being harmed. </p>
<p>In other words, foreign volunteer fighting can escalate and complicate a situation, and they could be prosecuted for the commission of war crimes upon their return to New Zealand. Because of its commitment to the Geneva Conventions, New Zealand is obliged to <a href="https://ihl-databases.icrc.org/ihl/full/GCI-commentaryArt1">ensure respect</a> for the laws of war in whatever feasible way it can.</p>
<p>New Zealand Defence Force soldiers are trained in the laws of war, so former military personnel volunteering may be of less concern. The same may apply where people are fighting as part of state armed forces, where command and control structures will be in place. </p>
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<strong>
Read more:
<a href="https://theconversation.com/beyond-sanctions-5-more-ways-new-zealand-can-help-support-ukraine-and-punish-russia-179371">Beyond sanctions: 5 more ways New Zealand can help support Ukraine and punish Russia</a>
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<p>However, as Australia’s <a href="https://afghanistaninquiry.defence.gov.au/sites/default/files/https:/afghanistaninquiry.defence.gov.au/sites/default/files/2020-11/IGADF-Afghanistan-Inquiry-Public-Release-Version.pdf2020-11/IGADF-Afghanistan-Inquiry-Public-Release-Version.pdf">Brereton Report</a> showed, even highly trained soldiers can become involved in alleged crimes amidst the heat and tragedy of war. </p>
<p>Thinkers like writer <a href="https://www.penguin.co.nz/books/homage-to-catalonia-9780141393025">George Orwell</a> and philosopher <a href="http://biblio3.url.edu.gt/SinParedes/08/Weil-Poem-LM.pdf">Simone Weil</a>, who were both volunteer fighters in the Spanish Civil War, warned about the way war sees even those on the “good” side committing violence and abuse.</p>
<p>All these factors should give governments pause for thought. Even if we feel solidarity with a cause, we may <a href="https://www.loom.com/share/82efb58682ba43c1852bbb076cfc08f5">feel torn</a> by the idea of individuals taking up arms on their own prerogative, especially when there are other, non-violent alternatives.</p><img src="https://counter.theconversation.com/content/179558/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marnie Lloydd does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>As the number of volunteers for Ukraine’s International Legion rises to a reported 20,000 from over 50 countries, is it lawful for New Zealanders to join the fight?Marnie Lloydd, Lecturer in Law and Associate-Director New Zealand Centre for Public Law, Te Herenga Waka — Victoria University of WellingtonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1793712022-03-16T19:27:10Z2022-03-16T19:27:10ZBeyond sanctions: 5 more ways New Zealand can help support Ukraine and punish Russia<p>The illegal Russian invasion of Ukraine has already seen New Zealand break with long diplomatic tradition and introduce an “autonomous” <a href="https://www.beehive.govt.nz/release/nz-allows-significant-expansion-sanctions-russia-0">sanctions regime</a> outside the normal United Nations process.</p>
<p>But as the war nears the one-month mark, there is more that can be done. In particular, the New Zealand government needs to look at five potential ways it can support the Ukrainian people and government and help international efforts to punish Russian aggression.</p>
<h2>1. Offer non-lethal military assistance</h2>
<p>The New Zealand government <a href="https://www.beehive.govt.nz/release/new-zealand-extend-nzdf-deployments-iraq-and-afghanistan-and-3-peacekeeping-missions%C2%A0">actively helped</a> the governments of Afghanistan and Iraq to defend themselves. But the current administration seems unwilling to do the same for Ukraine, despite the fact it is the victim of an illegal invasion by a superpower.</p>
<p>If New Zealand doesn’t wish to match the kind of lethal military aid its allies are providing, it could certainly offer non-lethal military assistance: body armour, communications equipment, night-vision technology, rations, medical packs and even cyber-security tools.</p>
<p>It may be small-scale, but the symbolism of helping the Ukrainian defence matters. <a href="https://www.rnz.co.nz/news/political/462848/prime-minister-jacinda-ardern-on-russia-ukraine-and-sanctions">The excuse</a> that New Zealand has no surplus kit is lamentable. It should provide whatever it has now (via Australia, which can deliver it) and restock as required. At this moment, Ukraine needs it more than New Zealand does.</p>
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<span class="caption">Ukrainian Territorial Defence Force soldiers in Kyiv: NZ has equipment to spare.</span>
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<h2>2. Control New Zealanders wanting to fight</h2>
<p>Both <a href="https://www.aljazeera.com/news/2022/3/14/russia-ukraine-war-international-legion-foreign-fighters">Ukraine</a> and <a href="https://www.bbc.com/news/world-europe-60705486">Russia</a> are trying to internationalise the conflict by calling for foreign volunteers. <a href="https://www.bbc.com/news/world-us-canada-60669763">Private contractors or mercenaries</a> are also in high demand. There will undoubtedly be New Zealanders, including current or former Defence Force personnel, who are tempted to go.</p>
<p>While those with dual nationality (New Zealand and Ukrainian or Russian) will have some legal standing in the conflict, those without would risk execution if captured. </p>
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Read more:
<a href="https://theconversation.com/on-the-3rd-anniversary-of-the-christchurch-attack-the-ukraine-crisis-asks-the-west-to-rethink-its-definitions-of-terrorism-179096">On the 3rd anniversary of the Christchurch attack, the Ukraine crisis asks the West to rethink its definitions of terrorism</a>
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<p>Current members of the New Zealand military risk being charged with <a href="https://legislation.govt.nz/act/public/1971/0053/latest/whole.html#DLM402703">mutiny</a> if they attempt to serve a foreign power while still in uniform. Fighting as a mercenary overseas is also <a href="https://www.legislation.govt.nz/act/public/2004/0069/latest/whole.html">illegal under New Zealand law</a>.</p>
<p>For New Zealanders motivated by ideology (rather than money), the government also needs to be explicit about the difference between fighting on the Ukrainian and Russian sides. One is acting like a terrorist organisation, and volunteers should be treated as such (much as New Zealand treated those leaving to <a href="https://www.legislation.govt.nz/act/public/2019/0079/latest/LMS258603.html">join ISIS</a>).</p>
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<h2>3. Open the door to refugees</h2>
<p>The <a href="https://www.unhcr.org/en-au/ukraine-emergency.html">2.8 million</a> people who have already fled Ukraine is an exodus of unprecedented speed and scale. The government will need to extend its annual refugee quota (currently 1,500) and make some emergency decisions.</p>
<p>The recent approval of <a href="https://www.beehive.govt.nz/release/government-offers-shelter-around-4000-family-members-ukrainians-nz">temporary sanctuary</a> for around 4,000 family members of Ukrainians already in New Zealand is an excellent start. But the government needs to go further, with a focus on actual refugees, and commit to a number above the existing quota.</p>
<p>There is precedent to guide this, not least because the origins of New Zealand’s refugee policy lie in the same part of the world. In 1944 <a href="https://nzhistory.govt.nz/page/polish-refugees-land-new-zealand">New Zealand accepted</a> 733 Polish children and 102 adults fleeing war-torn Europe (including deportation to the Soviet Union). </p>
<p>The present generation can do better – at least double what was offered during the second world war.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1503687965599748097"}"></div></p>
<h2>4. Prepare for Russian vodka to become very expensive</h2>
<p>Commendable as it is, the new <a href="https://www.legislation.govt.nz/bill/government/2022/0111/latest/LMS652885.html">Russian Sanctions Act</a>, which targets specific individuals and entities supporting the Russian war effort, is only a first step. </p>
<p>As part of wider economic pressure already being applied internationally, New Zealand can still allow trade in some Russian products but use import duties to make them uncompetitive.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/boycotting-russian-products-might-feel-right-but-can-individual-consumers-really-make-a-difference-178876">Boycotting Russian products might feel right, but can individual consumers really make a difference?</a>
</strong>
</em>
</p>
<hr>
<p><a href="https://www.theguardian.com/world/2022/mar/11/g7-nations-drawing-up-plans-impose-heavy-tariffs-russia-ukraine">A number of countries</a> have already started down this road, with the removal of Russia’s “<a href="https://www.wto.org/english/res_e/webcas_e/ltt_e/ltt1_e.htm">most favoured nation</a>” trade status. New Zealand should be prepared to act similarly – and expect Russia to reply in kind against New Zealand exports.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1503521257706328066"}"></div></p>
<h2>5. Discourage anti-Russian hysteria</h2>
<p>Despite <a href="https://www.rnz.co.nz/news/political/462563/national-party-leader-christopher-luxon-calls-for-russian-ambassador-to-be-expelled">calls by the parliamentary opposition</a>, New Zealand should not unilaterally expel the Russian ambassador. Such actions are normally a last resort, when countries are actually at war or there has been extreme interference in the host nation’s sovereignty.</p>
<p>In the case of Ukraine, for now at least, diplomacy has not run its course. Furthermore, it’s highly likely such a step would result in the New Zealand ambassador in Moscow being made <a href="https://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf">persona non grata</a> in response. New Zealand’s multiple interests in Russia would be left without official representation or support.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/how-will-nzs-law-targeting-sanctions-against-russia-work-and-what-are-the-risks-178634">How will NZ's law targeting sanctions against Russia work – and what are the risks?</a>
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<p>At a domestic level, the government should lead by example and not allow anger at Putin’s aggression to harden into anti-Russian sentiment. This means clearly identifying who and what should be subject to sanctions, observing due process and acting as fairly as possible.</p>
<p>Most Russians with citizenship or links to New Zealand will not be sanctions targets, anyway. Many will be opposed to Putin’s war. Ensuring tolerance, respect and protection is not only the right thing to do, it will help avoid reciprocal action against New Zealanders living in Russia.</p><img src="https://counter.theconversation.com/content/179371/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexander Gillespie does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>What can New Zealand do now to support Ukraine while avoiding unnecessary risk to its own citizens and interests?Alexander Gillespie, Professor of Law, University of WaikatoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1379602020-05-14T11:00:46Z2020-05-14T11:00:46ZRepatriation of Dutch children in Syria now unlikely – but it shouldn’t be a political choice<p><a href="https://theglobalobservatory.org/2018/12/children-isis-foreign-fighters-protection-national-security-opposition/">Many thousands of children</a> of foreign Islamic State fighters travelled with them to conflict areas such as Syria and Iraq, or were born there. Now these children and their families face considerable legal and logistical challenges. They are unable to access basic services, or return to their countries of origin, especially if an adult in the family has been deprived of citizenship. </p>
<p>With many countries refusing or delaying efforts to repatriate, these children are in a <a href="https://www.sbs.com.au/news/un-says-children-of-foreign-is-fighters-must-be-repatriated">particularly precarious situation</a>.</p>
<p>An ongoing Dutch case, brought on behalf of 23 women and 56 children by a team of lawyers, shines a probing light on these issues. The central question of whether or not the decision to repatriate is a political choice will be watched closely by other countries.</p>
<h2>Repatriation bid</h2>
<p>The <a href="https://wetten.overheid.nl/BWBR0001830/2020-01-01">advocaat-generaal</a>, Lodewijk Valk, who provides independent advice to the Dutch Supreme Court, advised the court in April that the Netherlands does not have to repatriate <a href="https://www.dutchnews.nl/news/2020/04/dutch-state-does-not-have-to-repatriate-is-women-and-children-advocate-general/">the Dutch women and children</a> detained in northern Syria. The group is seeking collective repatriation as the children are not allowed to travel away from the region without adults.</p>
<p>In November 2019, the <a href="https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2019:11909">Court of The Hague</a> initially ruled that the state should “make every effort” to allow repatriation of children. The conditions the children were living in were described as “appalling”. The judge went as far as to say that the state would be acting in a careless way if there were no active efforts to repatriate them. </p>
<p>This decision was then quickly reversed in ten days by the Appeals Court, which ruled that the group’s repatriation was a “political choice” and not a legally enforceable right. It’s this ruling that Valk now believes should be upheld – and it’s rare for the Dutch Supreme Court not to follow his advice. A final ruling is expected some time in summer 2020. </p>
<p>Valk stressed that the parents’ wrong choices should not be held against the affected children. He also suggested that an assessment of whether to repatriate each of the children should be on a case-by-case basis. He suggested that a request to repatriate the children only might have had a higher likelihood of success. Still, the children are not allowed to travel on their own and assessing the culpability of each mother for alleged activities within another jurisdiction and <a href="https://www.un.org/sc/ctc/news/2019/12/13/cted-launches-guidelines-battlefield-evidence/">during a conflict</a> would come with significant complications and long delays. </p>
<p>There are additional complications in this case. Since the legal challenge began in 2019, some of the group have <a href="https://www.volkskrant.nl/nieuws-achtergrond/adviseur-hoge-raad-staat-hoeft-is-vrouwen-en-kinderen-niet-te-repatrieren%7Eb1045c29/?referer=https%3A%2F%2Ft.co%2FAmisqPU6Dc%3Famp%3D1&utm_campaign=shared_earned&utm_medium=social&utm_source=twitter">relied on people smugglers</a> to escape the camps and their current whereabouts are unknown.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/334666/original/file-20200513-156641-kpeu95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/334666/original/file-20200513-156641-kpeu95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/334666/original/file-20200513-156641-kpeu95.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/334666/original/file-20200513-156641-kpeu95.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/334666/original/file-20200513-156641-kpeu95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/334666/original/file-20200513-156641-kpeu95.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/334666/original/file-20200513-156641-kpeu95.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Repatration now seems unlikely.</span>
<span class="attribution"><span class="source">Dedi Grigoroiu via Shutterstock</span></span>
</figcaption>
</figure>
<h2>Best interests of the child</h2>
<p>The key question in this context is what is in the best interests of the affected children. Irrespective of whether a minor left their home voluntarily or was taken to Syria or Iraq by a family member, their home state has a special responsibility to guarantee their safety and wellbeing under the <a href="https://www.ohchr.org/en/professionalinterest/pages/crc.aspx">UN Convention on the Rights of the Child</a>. It states that the best interests of the child should be the primary consideration in all actions. </p>
<p>If a state is to comply with its international obligations, children’s rights and wellbeing must not be compromised due to the decisions of adults and their alleged actions. If a child’s mother is alleged to have played an active role in a criminal situation, individual assessments of the criminal conduct or security risks of a parent should not be a reason to delay the repatriation of a child. There are <a href="https://www.tandfonline.com/doi/full/10.1080/09592318.2016.1209806">ample opportunities</a> on return to investigate the conduct of the Dutch parents and assess whether they pose a risk of re-offending without affecting the children. </p>
<p>Children’s rights should not be practically enforced based on the “worthiness” of either the parents or the children. It’s paramount that children’s prospective repatriation is not assessed through a national security lens, or on the question of whether or not bringing them home is conducive to the public good. Such an approach assumes, from a distance, that the children have been radicalised and that they may engage in criminal or terrorist activities in an unspecified time in the future.</p>
<p>Some countries such as <a href="https://www.theguardian.com/australia-news/2019/jun/24/children-isis-terrorist-khaled-sharrouf-return-australia-removed-syria">Australia</a>, <a href="https://www.theguardian.com/world/2019/jun/15/belgium-takes-back-six-children-of-isis-fighters-from-syrian-camps">Belgium</a>, <a href="https://www.theguardian.com/world/2019/mar/15/france-repatriates-five-orphaned-children-of-jihadists-from-syria">France</a> and <a href="https://www.thedefensepost.com/2019/06/03/norway-repatriates-orphan-children-isis-woman-syria/">Norway</a> have repatriated a limited number of children of Islamic State fighters. However, the reluctance to bring back children on the part of some European nations such as the Netherlands is likely to influence other countries in their future decisions too. </p>
<p>In light of the well-accepted international principles and obligations towards children, the safe repatriation of Dutch children living in Syria is urgent and it has already been unnecessarily delayed by court proceedings. Every child is deserving enough of legal protection from the country of their citizenship.</p><img src="https://counter.theconversation.com/content/137960/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A group of Dutch families of foreign fighters detained in Syria are trying to get The Netherlands to repatriate them.Devyani Prabhat, Reader in Law, University of BristolFaith Gordon, Lecturer in Criminology, Monash UniversityRumyana van Ark, Post-Doctoral Researcher in Terrorism, Counter-Terrorism and International Law, T.M.C. Asser InstituteLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1274392019-11-21T03:15:06Z2019-11-21T03:15:06ZWhy Australia can no longer avoid responsibility for its citizens held in Syria<figure><img src="https://images.theconversation.com/files/302819/original/file-20191121-479-1v81myh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Detention camps in Syria hold about 100,000 Syrian and foreign family members of IS suspects.
</span> <span class="attribution"><span class="source">Murtaja Lateef/EPA</span></span></figcaption></figure><p>The small number of Australians being held in prison camps in northern Syria has been an ongoing, albeit low-level, challenge for the Australian government. There are <a href="https://www.abc.net.au/news/2019-11-16/us-offers-to-rescue-australian-islamic-state-families-in-syria/11710924">believed to be eight Australian fighters</a> for the Islamic State in captivity, along with around 60 Australian women and children. </p>
<p>Despite its reluctance, the Australian government may eventually feel obliged to bring many or all these people home.</p>
<p>So far, the Australian public seems to have accepted the government’s line that it’s too dangerous to extract them from Syria. As <a href="https://www.pm.gov.au/media/transcript-radio-interview-oliver-peterson-6pr">Prime Minister Scott Morrison succinctly put it</a>:</p>
<blockquote>
<p>I’m not going to put any Australians in harm’s way. </p>
</blockquote>
<h2>An increasingly untenable position</h2>
<p>The government believes there are valid security concerns in bringing these people back to Australia. Home Affairs Minister Peter Dutton <a href="https://www.theguardian.com/australia-news/2019/oct/15/australian-families-trapped-in-isis-camp-in-syria-plead-with-government-to-rescue-them">has claimed</a> some of the women are “hardcore” and “have the potential and capacity to come back here and cause a mass casualty event”. </p>
<p>Identifying these people, gathering evidence about their crimes and managing domestic fears would be a big challenge.</p>
<p>However, the government’s position on extracting them from Syria has become less tenable after the <a href="https://www.politico.eu/article/8-questions-about-turkeys-incursion-into-syria-answered/">Turkish invasion of northern Syria</a> in October. This followed US President Donald Trump’s announced withdrawal of the American military buffer in the region. </p>
<p>The invasion added uncertainty to an already fraught situation. The Kurdish-dominated <a href="https://www.aljazeera.com/news/2019/10/syrian-democratic-forces-191015080247945.html">Syrian Democratic Forces</a>, who were central to the defeat of the Islamic State, were compelled to reinforce their forces on the border with Turkey. </p>
<hr>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/western-states-must-repatriate-is-fighters-and-their-families-before-more-break-free-from-syrian-camps-125168">Western states must repatriate IS fighters and their families before more break free from Syrian camps</a>
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<p>Many of their forces have been engaged in controlling prison camps in northern Syria, where <a href="https://www.hrw.org/news/2019/11/01/isis-suspect-transfers-iraq-replete-risks">about 12,000 men and boys</a> suspected of Islamic State ties, including 2,000 to 4,000 foreigners from almost 50 countries, are held. Some camps also hold about 100,000 Syrian and foreign family members of IS suspects. </p>
<p>The invasion focused attention on the state of the camps, which are overcrowded, unsanitary and experiencing considerable unrest. There have been some escapes from the camps, and many fear they are close to collapse. </p>
<p>The situation increases the possibility that <a href="https://www.ecfr.eu/publications/summary/beyond_good_and_evil_why_europe_should_bring_isis_foreign_fighters_home">young people in the camps will be radicalised</a>. </p>
<p>Last week, the US government, which has repatriated some of its nationals, offered to help allies, including Australia, rescue their citizens from northern Syria. On the same day, <a href="https://www.theguardian.com/world/2019/nov/16/turkey-pressures-australia-to-accept-islamic-state-fighters-as-repatriation-push-begins">Turkey called on Australia</a> to repatriate its IS fighters and their families in Turkish custody. </p>
<p>Groups like <a href="https://www.savethechildren.org.au/media/media-releases/australia-should-accept-us-offer">Save the Children</a> and Human Rights Watch have also called for the repatriation of women and children in the prison camps. </p>
<p>In Canberra, shadow home affairs minister Kristina Keneally <a href="https://www.theguardian.com/australia-news/2019/oct/13/australia-has-moral-duty-to-bring-home-foreign-fighter-families-in-syria-kristina-keneally-says">has also argued</a> Australia has a moral obligation to repatriate the women and children who were taken to Syria against their will.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/302821/original/file-20191121-524-igm3gw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/302821/original/file-20191121-524-igm3gw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/302821/original/file-20191121-524-igm3gw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/302821/original/file-20191121-524-igm3gw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/302821/original/file-20191121-524-igm3gw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/302821/original/file-20191121-524-igm3gw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/302821/original/file-20191121-524-igm3gw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Al-Hawl camp in northern Syria where eight Australian IS fighters and some 60 women and children are believed to be held.</span>
<span class="attribution"><span class="source">Tessa Fox/AAP</span></span>
</figcaption>
</figure>
<h2>Barriers to bringing detainees back</h2>
<p>While Australia has not <a href="https://www.ecfr.eu/publications/summary/beyond_good_and_evil_why_europe_should_bring_isis_foreign_fighters_home">joined the Dutch in outright rejecting</a> the US offer, the Morrison government has shown no enthusiasm for the idea.</p>
<p>Its position has been further undermined by the actions of other nations with citizens in the camps. Kosovo, Uzbekistan, Tajikistan and Kazakhstan, for example, have already repatriated hundreds of prisoners. </p>
<p>And Britain is considering options for repatriating its citizens. A <a href="https://www.theguardian.com/world/2019/oct/25/uk-government-considered-repatriation-of-british-isis-members-shamima-begum">government document</a> reported on last month said,</p>
<blockquote>
<p>While difficult, the practical challenges in arranging and implementing an extraction (of IS suspects) are likely to have solutions.</p>
</blockquote>
<p>Australia, by contrast, has continued to focus on the difficulties of extracting its citizens from the area, rather than tackling the legal challenges associated with bringing them home. Our legislative framework is still not sufficiently robust to deal with returnees. </p>
<p>The government has had many years to figure this out. In 2014, the UN <a href="https://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2178(2014)">passed a resolution</a> obliging all countries to adopt measures to deal with the issue of foreign fighters. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-is-it-so-difficult-to-prosecute-returning-fighters-78596">Why is it so difficult to prosecute returning fighters?</a>
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<p>There are ways to try those suspected of crimes committed in another country. The <a href="https://ijrcenter.org/cases-before-national-courts/domestic-exercise-of-universal-jurisdiction/">principle of universal jurisdiction</a>, for example, would allow Australia to interrogate and prosecute those currently held in Syria. </p>
<p>Lower-level suspects who are desperate to escape from Syria could also be required to accept certain conditions, such as restrictions on movement and contacts and participation in re-education programmes. The Australian women in the camp have <a href="https://www.theaustralian.com.au/nation/politics/isis-wives-seek-australian-control-orders/news-story/037cc8c302d8a6b96c7983be43ca08d6">already indicated they are open to this</a>.</p>
<p>But instead of looking at these options, Australia has endeavoured to keep out returning fighters and their families. <a href="https://www.theguardian.com/australia-news/2019/sep/16/duttons-citizenship-stripping-laws-may-increase-risk-of-terrorism-asio-warns">Laws have been passed to strip some of their citizenship</a>, running counter to several international conventions, including the <a href="https://www.un.org/en/universal-declaration-human-rights/">Universal Declaration of Human Rights</a>.</p>
<p>And the <a href="https://www.theguardian.com/australia-news/2019/jul/23/what-is-a-temporary-exclusion-order-australias-foreign-fighters-bill-explained">temporary exclusion orders bill</a> passed in July gives Dutton the power to bar Australian citizens from returning home for up to two years if they are suspected of supporting a terror organisation. </p>
<h2>There are few other options</h2>
<p>Some governments have suggested that IS captives in Syria should be transferred to Iraq, where trials of suspected IS members have already been held. The problem with this idea is that <a href="https://www.institutkurde.org/info/a-10-minute-trial-a-death-sentence-iraqi-justice-for-isis-suspects-1232551366">Iraq’s justice system is deeply flawed</a> and has imposed the death penalty after some highly dubious trials. </p>
<p>For example, France sent some suspects there <a href="https://www.theguardian.com/world/2019/jun/02/inside-the-iraqi-courts-sentencing-foreign-isis-fighters-to-death">only for them to be summarily sentenced to be hanged</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/preventing-foreign-fighters-from-returning-home-could-be-dangerous-to-national-security-120752">Preventing foreign fighters from returning home could be dangerous to national security</a>
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<p>Equally unacceptable would be to allow the Australian prisoners to <a href="https://www.theguardian.com/australia-news/2019/oct/15/australian-families-trapped-in-isis-camp-in-syria-plead-with-government-to-rescue-them">fall into the hands of the Syrian regime</a>.</p>
<p>In coming months, as conditions in the camps deteriorate and Syrian government forces expand their control of the area, we can expect mounting pressure on governments like Australia’s to repatriate their citizens. </p>
<p>In the long run, these are Australian citizens who should be entitled to the benefits that come from that, including due process of law. It is hard to see how the government can continue to deny their rights.</p><img src="https://counter.theconversation.com/content/127439/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthony Billingsley does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Morrison government has shown no enthusiasm for repatriating the family members of IS fighters. But as other nations bring back their own fighters, Australia may find itself forced to act.Anthony Billingsley, Senior Lecturer, School of Social Sciences, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1251682019-10-15T15:13:16Z2019-10-15T15:13:16ZWestern states must repatriate IS fighters and their families before more break free from Syrian camps<p>For more than a year, European powers have dallied over the question of what to do with the tens of thousands of Islamic State (IS) fighters and adherents captured following the fall of the so-called caliphate in Syria and Iraq. </p>
<p>Now the US decision to <a href="https://theconversation.com/what-donald-trumps-decision-to-abandon-kurdish-fighters-in-syria-means-for-the-kurds-assad-and-russia-124815">withdraw troops</a> and Turkey’s subsequent invasion of northern Syria on October 9 means the West has lost the luxury of inaction. </p>
<p>Since IS’s territorial defeat in March 2019, camps housing “IS families” and other displaced persons have swollen far in excess of their capacity. In Syria, the largest camp, <a href="https://www.theguardian.com/world/2019/oct/09/women-and-children-expected-to-break-out-from-al-hawl-camp">Al-Hawl, exceeds 70,000 people</a>. </p>
<p>The Turkish offensive has drawn the resources of the Kurdish-led Syrian Democratic Forces away from guarding the camps. Predictably, detainees <a href="https://www.theatlantic.com/ideas/archive/2019/10/isis-prison-breaks-foreseeable-tragedy/599980/">have been escaping</a>. On October 14, more than 700 IS adherents (men, women, and children, although reportedly no fighters) escaped the <a href="https://www.theguardian.com/world/2019/oct/13/kurds-say-785-isis-affiliates-have-escaped-camp-after-turkish-shelling">Ain Issa camp</a> in Syria. The US had attempted to move 60 “high value” IS prisoners before its troops withdrew, <a href="https://www.nytimes.com/2019/10/13/world/middleeast/syria-turkey-invasion-isis.html">but failed</a>. Expect more escapes, including of IS fighters, in the days and weeks to come. </p>
<h2>Repatriation</h2>
<p>Prior to the Turkish invasion, European nations had been wringing their hands, but doing little else, regarding the problem of foreign and other citizens in detention in Syria and Iraq. It’s estimated that <a href="https://www.bbc.com/news/world-middle-east-47286935">40,000 foreign fighters, including 6,000 western Europeans,</a> travelled to Syria and Iraq to join the group.</p>
<p>The two options most hotly debated regarding European citizens were repatriation and trials on site, where the detainees are being held. What to do with Iraqi and Syrian citizens was to be left to Iraq and Syria. </p>
<p>Of the two options, repatriation of nationals is the right choice. European countries, however, have equivocated. Europe does not want these citizens, understood as traitorous at best, dangerous at worst. The notion of danger includes even very small children, who <a href="https://www.cgpolicy.org/briefs/deradicalizing-syrias-children-of-isis-a-humanitarian-imperative/">some argue should be understood</a> as “radicalised” or “cubs of the caliphate,” irreparably marked by the violence and indoctrination they have experienced. </p>
<p>This narrative has taken precedence over the reports regarding the inhumane conditions in the camps in Syria: overflowing sewage leaking into tents, worms in the water, extreme weather conditions resulting in death, particularly for babies and young children. The case of <a href="https://theconversation.com/uk/topics/shamima-begum-66742">Shamima Begum</a>, who left the UK as a 15-year-old to join IS and whose citizenship was later revoked by the British government, is a stark example of this. Her baby died a few weeks after he was <a href="https://www.theguardian.com/uk-news/2019/mar/08/shamima-begum-confusion-after-reports-newborn-son-may-have-died">born in the al-Roj camp</a> in March 2019.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/what-rights-do-the-children-of-islamic-state-have-under-international-law-112322">What rights do the children of Islamic State have under international law?</a>
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</em>
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<p>Britain is not alone: most European countries refuse to repatriate citizens picked up in Syria and Iraq, or even, in fact, to count or identify them. Only a few exceptional repatriation instances exist, including a <a href="https://www.theguardian.com/world/2019/jun/10/syria-kurds-children-orphans-french-isis-islamic-state-fighters-handed-over-france">handful of French and Dutch orphans</a> and a large <a href="https://www.rudaw.net/english/middleeast/syria/180820191">mixed group of people including children to Germany</a>. Kosovo and Kazakstan have <a href="https://www.nytimes.com/2019/08/15/world/europe/isis-children-belgium.html">been open to repatriation</a> and Turkey and Russia have taken some orphans. In June, the Kurds released 800 detainees <a href="https://www.arabnews.com/node/1505446/middle-east">back to their families in Syria</a>.</p>
<p>Repatriated IS fighters and adherents would stand trial in their home countries under domestic criminal law.</p>
<h2>IS tribunals</h2>
<p>A second option, trials on site for IS adherents regardless of citizenship, was <a href="https://www.ecfr.eu/article/commentary_a_tribunal_for_isis_fighters">gaining momentum prior to the Turkish invasion</a>, with several countries <a href="https://www.ft.com/content/9086250e-7802-11e9-bbad-7c18c0ea0201">promoting the idea</a> of an international tribunal. The idea of constructing an ad hoc tribunal in the region promised to solve the detainee impasse for Western countries and the SDF.</p>
<p>But there are several problems with such an option. First, because the SDF is not an official government but rather provisionally in charge of territory in Syria, an ad hoc court with international support could not be set up in the Kurdish area of northern Syria. This leaves Iraq as the likely site. Constructing such an international tribunal in Iraq for IS adherents was the topic of a meeting held between Britain, France, Germany and three other countries in <a href="https://www.reuters.com/article/us-syria-security-turkey-foreignfighters/turkeys-syria-advance-leaves-europe-with-foreign-fighter-dilemma-idUSKBN1WS0IF">Copenhagen on October 11</a>. On the table is a hybrid structure, involving both international and Iraqi judges. </p>
<p>But an ad hoc tribunal in Iraq would need to contend with Iraqi law, which allows the death penalty, as well as the deeply problematic Iraqi trials already underway of IS affiliates. For the past several years, the Iraqi government has been subjecting IS fighters and affiliates to what can only be <a href="https://foreignpolicy.com/2019/05/22/iraq-brings-the-islamic-state-to-justice/">called sham trials</a>. Trials average ten minutes, and many defendants will not have met their defence attorney – <a href="https://www.institutkurde.org/info/a-10-minute-trial-a-death-sentence-iraqi-justice-for-isis-suspects-1232551366">who is paid $25 per case</a> – before the trial. </p>
<p>Punishment for IS affiliation includes life in prison when judges are lenient, but <a href="https://uk.reuters.com/article/uk-mideast-crisis-iraq-belgium/iraq-sentences-belgian-man-to-death-for-belonging-to-islamic-state-idUKKCN1QZ1JU">can also bring death by hanging</a>. Iraqi courts have issued <a href="https://www.amnesty.org.uk/files/2019-04/Death%20Sentences%20and%20Executions%202018.pdf?Trq74dR9nJZS1L4LyJN1SvspKTsDkYdj=">hundreds</a> of death sentences, including against foreign nationals, although it’s not clear if any have yet been carried out. </p>
<h2>What kind of justice?</h2>
<p>Internationally financed courts will not hand out death sentences – even life imprisonment is a sentence <a href="http://www.scielo.org.za/pdf/ahrlj/v11n1/05.pdf">rarely pronounced</a> by international or hybrid criminal courts. Gross violations of procedural rights are also unpalatable for Western-run institutions. But the numbers of detainees in prison prior to the Turkish offensive as well as the dearth of information regarding what crimes they have committed beyond affiliation with IS mean that rights-respecting court processes will take huge resources and could be inconclusive. </p>
<p>Any just tribunal would release most of the convicted prisoners within, at most, a few years if jail terms are to conform to widely accepted humanitarian standards. This would simply defer by a few years the question of what in fact should be done with IS affiliates – where should they live and where do they belong?</p>
<p>In early 2019, the Kurds set up trials for IS adherents in Kurdish-administered areas of Iraq and Syria, as an antidote to flawed Iraqi justice. Defence counsel was provided and sentences were capped at 20 years: rehabilitation, not revenge, was the goal, one judge <a href="https://www.npr.org/2019/05/25/726941819/isis-fighters-on-trial-in-kurdish-territory">told a journalist for NPR</a>. This promising development may be one more casualty of the changed circumstances on the ground. </p>
<p>The first, still best, option – repatriation of foreign nationals – is arguably a quickly closing window. Even then, questions would remain about what should happen to Iraqi and Syrian nationals, and what role the West should play in resolving their situation. But European powers must avoid taking the third option they’d been exercising by default – doing nothing, and waiting for circumstances to change.</p><img src="https://counter.theconversation.com/content/125168/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kerstin Bree Carlson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Turkey’s invasion of northern Syria may force Western states to finally address what to do with adherents of Islamic State. Here are the options.Kerstin Bree Carlson, Associate Professor International Law, University of Southern DenmarkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1235212019-09-29T19:56:25Z2019-09-29T19:56:25ZAustralia has enacted 82 anti-terror laws since 2001. But tough laws alone can’t eliminate terrorism<figure><img src="https://images.theconversation.com/files/294649/original/file-20190928-185407-hmedm2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australia has enacted 20 new anti-terror laws since 2014. Several more bills have been introduced by Home Affairs Minister Peter Dutton and are now before parliament.</span> <span class="attribution"><span class="source">James Ross/AAP</span></span></figcaption></figure><p><em>This is part of a new series looking at the national security challenges facing Australia, how our leaders are responding to them through legislation and how this is impacting society. Read other stories in the series <a href="https://theconversation.com/au/topics/australias-security-state-77051">here</a>.</em></p>
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<p>In late September, Home Affairs Minister Peter Dutton introduced a new bill that would give him <a href="https://www.theaustralian.com.au/nation/politics/peter-dutton-in-new-bid-for-tougher-terror-laws/news-story/940c586d95cfd6f71dd53e7c2d29d301">stronger powers</a> to strip the Australian citizenship of dual nationals convicted of terror-related offences or who in engage in related activities. </p>
<p>In response to the prospect of foreign fighters returning from conflicts overseas, the bill proposes extending the <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/aca2007254/s32a.html">current citizenship revocation law</a> to any dual national who is convicted of a terrorism offence carrying at least three years imprisonment (compared to the current six). </p>
<p>It would also be back-dated to account for any terrorism convictions or conduct from May 2003 onwards (compared to the current cut-off date of December 2015).</p>
<p>To protect the rights of dual nationals, the bill proposes changing the process for revoking citizenship. Instead of it automatically ceasing when people engage in terror-related conduct, the minister would have the sole power to decide if they should be stripped of their citizenship.</p>
<p>This procedural change is unusual because moves to repeal or wind back
anti-terrorism laws have been few and far between. </p>
<p>Unfortunately, however, in all other respects, the new citizenship bill fits squarely within the pattern of overzealous Australian anti-terror law-making over the past 18 years. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/preventing-foreign-fighters-from-returning-home-could-be-dangerous-to-national-security-120752">Preventing foreign fighters from returning home could be dangerous to national security</a>
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<h2>A new law every 6.7 weeks</h2>
<p>Since the September 11, 2001, terrorist attacks in the United States, the Australian parliament has responded to the threat of terrorism here and overseas by enacting dozens of new laws or amending existing laws.</p>
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<p><iframe id="tc-infographic-437" class="tc-infographic" height="400px" src="https://cdn.theconversation.com/infographics/437/e5ebd58456b2483e7817dd97dbdd4de20304a111/site/index.html" width="100%" style="border: none" frameborder="0"></iframe></p>
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<figcaption>Note: Hover on desktop to see names and links of individual acts.</figcaption>
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<p>In 2011, University of Toronto Professor Kent Roach famously described this response in Australia as one of “<a href="https://www.cambridge.org/core/books/911-effect/australia-responds-hyperlegislation/DFDCB4FEEFC43700DE121DA29D423F45">hyper-legislation</a>”. </p>
<p>Another expert, UNSW Professor George Williams calculated that between the September 11 terrorist attacks and the defeat of the Howard government in November 2007, a new anti-terror law was enacted on average every <a href="http://classic.austlii.edu.au/au/journals/MelbULawRw/2011/38.html">6.7 weeks</a>.</p>
<p>The <a href="https://www.bbc.com/news/world-middle-east-28082962">declaration of a caliphate</a> by the Islamic State in mid-2014 led to another flurry of legislative activity in parliament. </p>
<p>This started with the <a href="https://www.legislation.gov.au/Details/C2014A00108">National Security Legislation Amendment Act (No 1) 2014 (Cth)</a>, which <a href="https://www.smh.com.au/politics/federal/australias-new-security-laws-explained-20140926-10mh6d.html">controversially</a> exempted undercover ASIO officers from criminal prosecution, expanded that organisation’s access to computer networks, and restricted the leaking of sensitive information. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/national-security-bills-compound-existing-threats-to-media-freedom-29946">National security bills compound existing threats to media freedom</a>
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<p>In the five years since then, 19 more anti-terrorism laws have been passed. That brings the total number of substantive anti-terrorism laws enacted by parliament to 82 since the Sept. 11 attacks, with a further six bills either currently before parliament or about to be introduced.</p>
<p>This is a staggering number of laws, and far exceeds the volume in the United Kingdom, Canada and even the United States in response to Sept 11. </p>
<h2>Draconian and unworkable laws</h2>
<p>It is not only the sheer number of laws, but also their scope, which makes Australia stand out among Western democracies. </p>
<p>At the core of Australia’s anti-terrorism regime is a carefully considered and, in the eyes of most commentators, <a href="https://www.legislation.gov.au/Details/C2019C00152">balanced definition of terrorism</a>.</p>
<p>However, as the years have gone by, increasingly draconian, and often unworkable, legislation has spiralled out beyond this definition. For instance, the mere act of travel to certain areas, such as Mosul in Iraq, <a href="https://www.ag.gov.au/NationalSecurity/Counterterrorismlaw/Pages/ForeignIncursionsAndRecruitmentOffences.aspx">has been criminalised</a>, as well as <a href="https://www.ag.gov.au/NationalSecurity/Counterterrorismlaw/Pages/UrgingViolenceAndAdvocatingTerrorismOffences.aspx">advocating terrorism</a>. </p>
<p>Instead of working with companies like Facebook and Twitter in the aftermath of the Christchurch terrorist attacks, the government imposed impractical <a href="https://www.legislation.gov.au/Details/C2019A00038">obligations</a> on them to scrutinise the online activities of their customers (with further laws <a href="https://www.pm.gov.au/media/stronger-action-against-terror-content">threatened</a> in the event of non-compliance).</p>
<p>In addition to the stripping of the citizenship of dual nationals, another bill would <a href="https://www.legislation.gov.au/Details/C2019A00053">prevent anyone from returning home</a> from overseas conflicts for a considerable period of time under a Temporary Exclusion Order, even Australians who don’t hold another passport.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/theres-no-clear-need-for-peter-duttons-new-bill-excluding-citizens-from-australia-119876">There’s no clear need for Peter Dutton’s new bill excluding citizens from Australia</a>
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<p><a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1222">Another bill</a> before parliament would require people who have previously been charged with a terrorism offence (regardless of whether they were ultimately acquitted) to prove extraordinary circumstances before being granted bail for a subsequent offence.</p>
<p>This demonstrates just how far lawmakers have strayed from the fundamental human rights and principles of criminal justice. </p>
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<img alt="" src="https://images.theconversation.com/files/294280/original/file-20190926-51425-1ks7fjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/294280/original/file-20190926-51425-1ks7fjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/294280/original/file-20190926-51425-1ks7fjg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/294280/original/file-20190926-51425-1ks7fjg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/294280/original/file-20190926-51425-1ks7fjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/294280/original/file-20190926-51425-1ks7fjg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/294280/original/file-20190926-51425-1ks7fjg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Home Affairs Minister Peter Dutton would have the power to decide on revoking citizenship for those convicted of terror offenses under a new bill before parliament.</span>
<span class="attribution"><span class="source">Sam Mooy/AAP</span></span>
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<h2>What anti-terror laws are intended to do</h2>
<p>In the immediate aftermath of the September 11 attacks, Australian lawmakers might have been excused any overreaction on the grounds the country didn’t have much historical experience with terrorism or in legislating in response to this threat. </p>
<p>At the time, there were <a href="http://classic.austlii.edu.au/au/journals/MelbULawRw/2011/38.html#fnB12">no specific anti-terrorism laws</a> at the federal level in Australia. This was undoubtedly a significant oversight which needed to be remedied.</p>
<p>Even today, more than 18 years on and with over 80 laws in place, it’s somewhat understandable lawmakers react to terrorist attacks by seeking to take swift action. </p>
<p>One of the (few) downsides of a democratic political system is that parliamentarians are hit with the full force of public hysteria about actual and perceived terrorist threats. The most obvious way for the parliament to address these fears is through the enactment of laws. </p>
<p>As Roger Wilkins, a former secretary of the Attorney-General’s department, <a href="https://www.smh.com.au/national/control-orders-must-be-extended-to-avoid-parisstyle-attack-in-australia-20151117-gl0yz0.html">said</a> in support of proposals to strengthen the control orders laws in the aftermath of the November 2015 Paris terrorist attacks: </p>
<blockquote>
<p>In a modern, liberal democracy, that’s about the only thing you can do.</p>
</blockquote>
<p>Despite frequent claims to the contrary, this is not just a case of political opportunism on the part of the governing party. The steps taken by lawmakers are crucial in re-establishing the community’s sense of security. </p>
<p>We need to acknowledge, above all, that the buck stops with our elected representatives to protect the lives of the Australian people. They bear both the personal and professional responsibility if a terrorist act occurs which could have been prevented. </p>
<p>It is this, as much as anything else, that explains the rapid and bipartisan passage of so many laws through the parliament.</p>
<h2>Terrorism can’t be defeated through laws alone</h2>
<p>Having said all this, it’s unfortunate successive Australian governments on both sides seem to have learned little over the course of the last 18 years. </p>
<p>Statements made in the aftermath of every terrorist attack, and, most recently in responding to concerns about foreign terrorist fighters, have identified the ultimate goal as being to <a href="https://www.smh.com.au/politics/federal/prime-minister-malcolm-turnbull-emotional-after-downing-street-visit-20170710-gx8jev.html">“defy” and “defeat” terrorism</a>. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-the-australian-government-is-failing-on-countering-violent-extremism-104565">How the Australian government is failing on countering violent extremism</a>
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<p>While statements such as this are clearly rhetorical, what underpins them is a failure to recognise the permanence of terrorism.</p>
<p>Terrorism in one form or another has always existed, and will always continue to exist. Neither legislation nor anything else will be able to eliminate this threat. </p>
<p>The idea of managing the threat of terrorism, in the sense that some degree of terrorism is acceptable or at least to be expected, might seem politically unpalatable. However, open acceptance of the permanence of terrorism means lawmakers will no longer be chasing – and the public no longer demanding – the achievement of an impossible goal. </p>
<p>It will also, in turn, facilitate a more proportionate response to the challenges posed by the foreign fighters phenomenon and the threat of terrorism more generally.</p>
<h2>A better way forward</h2>
<p>In a quest to eliminate terrorism, laws have been enacted that make ever-increasing intrusions into people’s lives and curtail human rights for diminishing returns in terms of security. </p>
<p>Some have even suggested these laws make us less safe. In its <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/Citizenship2019/Submissions">submission</a> to the Parliamentary Joint Committee on Intelligence and Security’s inquiry into the citizenship stripping laws, ASIO said these measures could:</p>
<blockquote>
<p>have unintended or unforeseen adverse security outcomes – potentially including reducing one manifestation of the terrorist threat while exacerbating another.</p>
</blockquote>
<p>It will never be appropriate or desirable for governments to sit back and take no action in response to the threat of terrorism. But what we need is a sharp change in approach. </p>
<p>Countering violent extremism programs have been used in Australia and other countries as another tool for responding to terrorism threats. Instead of treating such programs as a “backup” option, as they currently are in Australia, these should be brought to the fore. </p>
<p>The critical lesson of the past 18 years is that we must think creatively about how to combat the threat of terrorism, rather than continually reworking existing – and often demonstrably unsuccessful – strategies.</p><img src="https://counter.theconversation.com/content/123521/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Australia now has one of the most comprehensive ranges of anti-terrorism laws of any Western democracy. It’s time to think creatively about solutions, rather than continually reworking old strategies.Nicola McGarrity, Senior Lecturer, Faculty of Law, UNSW SydneyJessie Blackbourn, Assistant Professor in Public Law and Human Rights, Durham UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1220812019-08-20T13:55:18Z2019-08-20T13:55:18ZWhy the UK could regret angering Canada by stripping IS suspect Jack Letts of British citizenship<figure><img src="https://images.theconversation.com/files/288733/original/file-20190820-170935-1c3obx4.png?ixlib=rb-1.1.0&rect=257%2C1%2C901%2C580&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Jack Letts was told by ITV News that he had been stripped of his British citizenship. </span> <span class="attribution"><a class="source" href="https://www.youtube.com/watch?v=m6PTylyos1E">'Jihadi Jack' learns from ITV News he's no longer a British citizen via YouTube</a></span></figcaption></figure><p>The Canadian government is furious. Jack Letts, a British-Canadian man who travelled to Syria to join Islamic State (IS), <a href="https://news.sky.com/story/jihadi-jack-stripped-of-uk-citizenship-sky-sources-11788024">has been stripped</a> of his British citizenship by the UK government. The decision was taken by Sajid Javid, reportedly in one of his last acts as home secretary before becoming chancellor in Boris Johnson’s government. </p>
<p>Letts, who is currently in a Kurdish-run prison in northern Syria, is now left solely with Canadian citizenship. </p>
<p>Canadian prime minister Justin Trudeau’s Liberal government has made no effort to hide its anger. Its minister of public safety, Ralph Goodale, who has parallel security powers to the UK home secretary, said in a <a href="https://www.cbc.ca/news/world/jihadi-jack-citizenship-uk-canada-1.5251437">statement</a>: </p>
<blockquote>
<p>Terrorism knows no borders, so countries need to work together to keep each other safe. Canada is disappointed that the United Kingdom has taken this unilateral action to offload their responsibilities.</p>
</blockquote>
<p>In an interview with the BBC, Canadian MP John McKay, chair of the Standing Committee on Public Safety and National Security, described the British decision to strip Letts of his citizenship as <a href="https://www.bbc.co.uk/programmes/m0007q9m">“gutless.”</a></p>
<h2>Campaign issue for Trudeau</h2>
<p>On the surface, the source of Canadian irritation isn’t hard to understand. Letts is a Canadian citizen through his father, but <a href="https://www.theguardian.com/world/2019/jul/07/jack-letts-our-son-the-terror-suspect-john-letts-sally-lane-interview">his entire life has been British</a>. He was born in the UK, grew up in the UK, went to school in the UK, converted to Islam in the UK, and left for Syria from the UK. He is a made-in-the-UK problem, but now the solution to his current situation is solely Canada’s responsibility.</p>
<p>The issue of citizenship has deep significance for the Trudeau government. During the 2015 Canadian federal election campaign, Trudeau made a campaign issue out of the efforts by the Conservative government of Stephen Harper to strip Canadian citizenship from dual citizens convicted of terrorism, espionage or treason.</p>
<p>During an election debate, Trudeau memorably told Harper that a <a href="https://www.youtube.com/watch?v=hxCxzXcMGlc">“Canadian is a Canadian is a Canadian”</a> and that removing citizenship from some diminished it for all. Once in power, Trudeau’s government <a href="https://www.cbc.ca/news/politics/citizenship-act-amendments-senate-thursday-1.4163656">repealed Harper’s law</a> while retaining the right to strip Canadians of their citizenship if they fraudulently obtained it.</p>
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<p>How to deal with citizens who have gone abroad allegedly to support IS remains a pressing issue for a number of Western countries. The British government has now repeatedly tried to address the matter by stripping people of British citizenship where possible, most <a href="https://www.independent.co.uk/news/uk/home-news/shamima-begum-uk-citizenship-stripped-home-office-sajid-javid-a8788301.html">prominently in the case of Shamima Begum</a>, a London schoolgirl who travelled to Syria and married a Dutch member of IS. </p>
<p>In that context, Letts’s treatment represents a win-win-win for the British government. The act demonstrates that it isn’t just non-white Britons such as Begum who are being targeted for such treatment. It also ensures that Letts won’t be a security issue in the UK in the future, and it plays well in some quarters of the media where Letts has been nicknamed <a href="https://www.thesun.co.uk/news/9750992/jihadi-jack-dad-isis-torture/">“Jihadi Jack.”</a></p>
<h2>Not the time to anger allies</h2>
<p>With an eye on Britain’s post-Brexit future, however, the treatment of Canada has a wider significance that seems absent from debate about the Letts case in the UK. Canada is a colonial creation of the UK and the two have close historical ties that continue today. The apparent lack of consideration for Ottawa’s perspective in the Letts case represents a certain lingering colonial arrogance on the part of the British government.</p>
<p>At one time, London could have snubbed a close friend, ally, and former colony without consequences. But now, as it prepares to leave the European Union, Britain needs all of the friends and trade agreements it can get. One of Dominic Raab’s first destinations after becoming foreign secretary in the new Johnson government was to Ottawa to <a href="https://www.theguardian.com/politics/2019/aug/06/raab-says-brexit-will-bring-huge-series-of-upsides-for-uk-trade">discuss the possibility of a Canada-UK trade agreement.</a></p>
<p>Ironically, given the revocation of Letts’s British citizenship, when Raab met with Canada’s minister of foreign affairs, Chrystia Freeland, her focus was not on a trade agreement but rather on the <a href="https://www.ctvnews.ca/politics/freeland-british-counterpart-share-views-on-canadians-detained-in-china-1.4538319">treatment of Canadian citizens</a> currently imprisoned in China. </p>
<p>Canadian priorities are not going to be more favourably inclined toward the needs of the Johnson government for a trade deal given the Letts case. It may not just be members of the EU offering a frosty reception to Johnson at the upcoming G7 summit in Biarritz. Post-Brexit Britain will soon discover that loyalty is a two-way street.</p><img src="https://counter.theconversation.com/content/122081/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Steve Hewitt does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The UK needs all the friends it can get after Brexit – angering Canada isn’t a good move.Steve Hewitt, Senior Lecturer in the Dept of History & the American and Canadian Studies Research Centre, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1203112019-08-19T14:39:41Z2019-08-19T14:39:41ZJack Letts: why revoking citizenship from IS recruits hasn’t caused an outcry – even from those who object<figure><img src="https://images.theconversation.com/files/288498/original/file-20190819-123731-saaogz.png?ixlib=rb-1.1.0&rect=6%2C6%2C1069%2C553&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Jack Letts: no longer a British citizen. </span> <span class="attribution"><a class="source" href="https://www.youtube.com/watch?v=oeBab40Ooe8">'Jihadi Jack' makes appeal to come home via SkyNews on YouTube</a></span></figcaption></figure><p>Jack Letts, a man from Oxford who joined Islamic State (IS) and is currently in a Kurdish-run prison in Syria, was <a href="https://news.sky.com/story/jihadi-jack-stripped-of-uk-citizenship-sky-sources-11788024">stripped of his British citizenship</a> by the former home secretary, Sajid Javid, reportedly in one of his final acts before becoming chancellor. In June, Letts admitted in an interview <a href="https://www.bbc.co.uk/news/uk-48624104">with the BBC</a> that he had been ready to become a suicide bomber and to being an “enemy of Britain”. He said: “I made a big mistake.” </p>
<p>Letts has dual Canadian nationality through his father and so has not been left stateless, but Canada said it <a href="https://www.cbc.ca/news/world/jihadi-jack-citizenship-uk-canada-1.5251437">was disappointed</a> by the decision to revoke his British citizenship. Two former British ministers have also <a href="https://www.politicshome.com/news/uk/foreign-affairs/news/105978/sajid-javid-facing-tory-backlash-and-canada-rift-after-stripping">spoken out against</a> the decision, on the grounds that it sets a bad example and could potentially undermine anti-extremism work. Such reactions may be partly driven by international perception and the potential of damaged relations with <a href="https://www.news18.com/news/world/canada-slams-uk-decision-to-off-load-islamic-state-fighter-jihadi-jack-2275597.html">Canada, a traditional British ally</a>. </p>
<p>The issue of nationality is crucial. It is <a href="https://www.independent.co.uk/news/uk/crime/british-citizenship-removal-isis-terrorists-extremists-stateless-illegal-blocked-court-bangladesh-a8645241.html">illegal</a> to leave a person stateless by stripping them of their citizenship. Crucially, Letts has never been tried in a British court.</p>
<p>His case has similarities with that of <a href="https://www.theguardian.com/uk-news/2019/may/31/sajid-javid-accused-shamima-begum-case-syria">Shamima Begum</a>, the British teenager whose citizenship was revoked in February 2019, although her family has <a href="https://www.theguardian.com/uk-news/2019/aug/10/lawyer-for-uk-isis-woman-shamima-begum-says-police-building-criminal-case">lodged an appeal</a>. The decision to revoke her citizenship was partly taken on the basis that she had dual Bangladeshi nationality and so would not be made stateless – but this point has yet to be challenged in court. </p>
<h2>No outcry</h2>
<p>Begum’s case gained widespread media attention, but there was little, if any, public outcry over the decisions to revoke her British citizenship. A <a href="https://yougov.co.uk/opi/surveys/results#/survey/f6385dae-34fd-11e9-af57-67fad969c339">YouGov poll</a> in February found that 76% of those surveyed supported the decision. It is early days, and therefore too soon to tell the public reaction to the Letts case. </p>
<p>But why are potentially unjust decisions or actions by governments readily accepted by their populations? It’s a question that my colleagues and I have considered as part of our wider research <a href="https://www.uclan.ac.uk/research/explore/projects/the-peace-and-justice-studies-network.php">into peace and justice</a>. </p>
<p>Our interest in public acceptance of the state’s action doesn’t ignore the potential difficulties in challenging acts of parliament. These can only be <a href="https://www.leighday.co.uk/Human-rights-abuse-claims-judicial-review/Further-insights/Judicial-review">challenged by judicial review</a>, and on limited EU or human rights grounds. The challenger must have “sufficient interest” in the outcome – conditions which are not simple to meet – and few would have the legal knowledge to undertake such action. </p>
<p>The public can still mobilise support for reviews or appeals, or make their disquiet known via political protest, or <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/pops.12478">social media</a>. But there hasn’t been a widespread social media campaign against the UK’s decision to revoke British citizenship of IS fighters. </p>
<h2>Not an ‘ideal’ victim</h2>
<p>Even if observers doubt the legality or morality of abandoning a fellow citizen in a Syrian camp, they may justify such actions via the technique of what’s called “<a href="https://www.oxfordbibliographies.com/view/document/obo-9780195396607/obo-9780195396607-0140.xml">neutralisation</a>”. The term was originally applied to offenders, but is a technique used to neutralise any guilt we may experience for our action or inaction. It refers to the practice of denying responsibility, appealing to higher loyalties such as UK interests, asserting our own good character, and claiming ourselves to be potential victims – in this case, of terrorism. </p>
<p>The claim by Begum’s lawyer that she was a <a href="https://www.bbc.co.uk/news/uk-48444604">victim of grooming</a> gained little public support, perhaps because of a perception that she is not innocent, nor an “<a href="http://criticallegalthinking.com/2015/08/05/nils-christies-ideal-victim-applied-from-lions-to-swarms/">ideal victim</a>”. </p>
<p>When Begum was interviewed by journalists, she showed neither weakness nor repentance and appeared antagonistic to a British way of life, despite her desire to access British <a href="https://www.theguardian.com/world/2019/feb/14/shamima-begum-friends-kadiza-sultana-amira-abase-joined-isis-syria">medical care</a> for her son, who later died. Public opinion is scathing of those who reject perceived <a href="https://esol.britishcouncil.org/content/learners/uk-life/life-uk-test/values-and-principles-uk">British values</a> and related responsibilities, yet seek the benefits that come from British rights, such as medical care and education. </p>
<p>This linking of rights and responsibilities feeds into wider research showing that citizenship is increasingly <a href="https://www.tandfonline.com/doi/full/10.1080/14782804.2017.1397503">framed in terms of a privilege</a>, <a href="https://www.theguardian.com/uk-news/2017/mar/09/terror-suspects-british-citizenship-european-ruling">not a right</a>, by those countries stepping up removal of it, and seeking to legitimise doing so.</p>
<h2>Fear enables actions to go unchallenged</h2>
<p>Both Begum and Letts stoke fears about potential terrorism attacks in Britain, <a href="https://www.jstor.org/stable/40971987?seq=1#page_scan_tab_contents">and research</a> has long argued that fear enables the restriction of civil liberties. </p>
<p>It’s possible that part of the vitriol against Begum is because she’s seen as an “<a href="https://www.vox.com/science-and-health/2017/1/28/14425658/fear-of-refugees-explained">outsider</a>” – a non-white British Muslim. Such fear of “the other” can be interpreted as <a href="https://dictionary.cambridge.org/dictionary/english/xenophobia">xenophobia</a>. But these fears don’t operate in a vacuum. <a href="https://www.bbc.co.uk/news/education-45784642">Recent research</a> also suggests that young people living in the UK also have extreme fears about terrorism, reportedly fuelled by social media reports on extreme acts. </p>
<p>In a fearful climate, seeing others you believe may harm you can evoke considerable anxiety and animosity. Both these emotions can enable illegitimate actions to go unchallenged. And even those people who have serious concerns about the actions of their government may not publicly protest, offer support, or challenge the decision, perhaps <a href="https://www.brainfoodblog.com/blog/2017/9/13/bystander-effect-and-sending-help">believing others will</a>, or fearing repercussions if they do so. </p>
<p>If people are challenged about why they didn’t speak out about a particular case, they may admit that justice was miscarried and express a hope that the mistake will be corrected on appeal, or claim that the <a href="https://academic.oup.com/icon/article/12/1/35/628590">law provided for an exception</a>. </p>
<p>While governments may not always keep to the strict letter of the <a href="https://www.dictionary.com/browse/rule-of-law">rule of law</a> – a fundamental British value – public opinion is often driven less by such concerns, than by emotional, if irrational, responses in perceived emergency situations.</p><img src="https://counter.theconversation.com/content/120311/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kim McGuire does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Why do people readily accept potentially unjust decisions by their government?Kim McGuire, Senior Lecturer, Lancashire Law School, University of Central LancashireLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1120482019-02-20T13:45:48Z2019-02-20T13:45:48ZShamima Begum: how Europe toughened its stance on women returning from Islamic State<figure><img src="https://images.theconversation.com/files/259915/original/file-20190220-148530-jh0lt0.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Shamima Begum being interviewed by the BBC at a refugee camp in Syria. </span> <span class="attribution"><a class="source" href="https://www.youtube.com/watch?v=ppyDfm-yyl8">BBC News via YouTube</a></span></figcaption></figure><p>Around a year before Shamima Begum <a href="https://news.sky.com/story/is-bride-shamima-begum-gives-birth-in-syria-11640060">called for public sympathy</a> for her return to the UK, another young woman was <a href="https://www.thetimes.co.uk/article/linda-wenzel-german-teenager-who-joined-isis-is-too-young-to-be-executed-in-iraq-snwlw9wns">jailed in Baghdad</a> for her role with the so-called Islamic State. Linda Wenzel is German and, like Begum, was 15 years old when she joined Islamic State in 2016.</p>
<p>In 2016 I was in Germany, trying to understand young women like Wenzel, for a <a href="https://www.tandfonline.com/doi/abs/10.1080/03071847.2017.1353251">five-country study</a> on the gender dynamics of violent extremism with my colleague Emily Winterbotham, a senior research fellow at the RUSI think tank. We talked to communities and families affected by radicalisation in the UK, Germany, France, the Netherlands and Canada. </p>
<p>These countries had diverse approaches to radicalisation. France produced counter-radicalisation strategies after the Paris attacks of 2015, while the UK and Netherlands have worked on policy to counter violent extremism since the mid-2000s. Both the Netherlands and UK permit deprivation of citizenship without criminal conviction – which is what has <a href="https://www.bbc.co.uk/news/uk-47299907">now happened to Begum</a>. </p>
<p>We heard stories of people prevented from travel by police, as well as of both women and men who left for Syria and Iraq. Across the five countries we noted differences in how men and women were recruited, such as more cases of online approaches to women. We also saw how Muslim community anger was often reserved for the young men who fled to join Islamic State. Focus groups within Muslim communities often told us women were “naïve”, lacking in self-esteem, “tricked” by “lover-boys” they met online. They were seen as victims.</p>
<p>Back in 2015-6 this sentiment was mirrored in government policy. France, Germany and the Netherlands tended to treat women jihadists as “victims” of Islamic State. Recent <a href="http://www.egmontinstitute.be/returnees-assessing-policies-on-returning-foreign-terrorist-fighters-in-belgium-germany-and-the-netherlands/">research</a> on returning foreign fighters in Belgium, Germany and the Netherlands noted that back then women were “treated with more clemency” and routinely not prosecuted.</p>
<p>That position has changed, with <a href="http://www.europarl.europa.eu/RegData/etudes/STUD/2018/621811/EPRS_STU(2018)621811_EN.pdf">toughening measures for both men and women</a> across Europe. Countries including the UK, Netherlands, Germany and France now investigate and risk-assess both men and women returners. From a position where women and their agency in joining Islamic State were not recognised, the pendulum swung firmly in the other direction. </p>
<h2>Hardening attitudes</h2>
<p>The first reason why this shift happened was numbers. Countries have had to evolve to catch up with events on the ground. From the Islamic State’s announcement of a “caliphate” in 2014, Europe saw a significant minority of women travel – and women made up around 16-17% of the <a href="https://icsr.info/2018/07/23/from-daesh-to-diaspora-tracing-the-women-and-minors-of-islamic-state/">approximately 6,000 people</a> who left Europe to join the caliphate. </p>
<p>In the case of France, which was new to counter-radicalisation strategies at home and where women made up around 28% of its returners, the shift in policy meant sharp changes to the law and procedures. Canada, which had fewer fighters, adopted a liberal response <a href="https://theconversation.com/why-canada-must-prosecute-returning-isis-fighters-105198">with few prosecutions</a> of returners – both fighters and others. This prompted accusations from Canada’s opposition Conservative Party of a policy of “<a href="https://www.ctvnews.ca/politics/plan-to-deal-with-returning-isis-fighters-sparks-fiery-exchange-between-scheer-pm-1.3698183">group hug sessions</a>”.</p>
<p>A second reason for the hardening of attitudes to women who joined IS was increased knowledge of women’s role in Islamic State. Women were <a href="https://www.tandfonline.com/doi/abs/10.1080/1057610X.2015.1025611">active propagandists</a>, recruiters, ideologues, supporters of current warriors and producers of the next generation. They were involved in the abuse of other women, whether enslaved Yazidis, or in the <a href="https://www.nbcnews.com/storyline/isis-uncovered/how-all-female-isis-morality-police-khansaa-brigade-terrorized-mosul-n685926">al-Khansaa brigade</a>, which policed women. Both Begum and Wenzel suggested they were only housewives. But for Islamic State, the wife is the <a href="https://ctc.usma.edu/app/uploads/2018/05/Boko-Haram-Beyond-the-Headlines_Chapter-2.pdf">key to the endurance</a> – or <em>baqiya</em> – of both ideology and “caliphate”.</p>
<p>The perception of women’s threat was also explicitly influenced by cases involving women and a seemingly new phenomenon: the all-female jihadist cell. In 2016, <a href="https://www.theguardian.com/world/2016/sep/09/cell-of-french-women-radicalised-by-isis-behind-failed-notre-dame-attack">three women were arrested</a> in France after a failed attack near Notre Dame. This proved a game-changer for both public opinion and policy regarding returners, despite the fact that these women were radicalised in France. In the UK, another <a href="https://www.bbc.co.uk/news/uk-44359958">all-female plot</a> was uncovered in 2017. </p>
<p>An increase in threat levels linked to male returners also had an influence on how women were viewed. In 2015, male returners were involved in the <a href="https://ctc.usma.edu/the-paris-attacks-and-the-evolving-islamic-state-threat-to-france/">Paris attacks</a> and the following year in attacks in Brussels. While women have not yet returned in large numbers, the fear is that women, newly recognised as ideologically committed, might also carry out an attack. </p>
<h2>The gender dimension</h2>
<p>Both policy and public opinion are shifting from ignoring women in jihadist movements, to “adding” them in to counter-extremism strategies, and increasingly treating the threat they pose as equal to men. There is now an increased assumption in France, the Netherlands and Germany of parity in male and female potential for violence. However, it’s not enough to just to “add women” into existing strategies – governments must recognise the ways in which terrorist groups understand men and women differently.</p>
<p>This means acknowledging two important facts related to power. First, compared to men, instances of women perpetrators of jihadist violence are rare, not because women are “naturally” less violent, or do not support jihad, but because patriarchal jihadi ideology judges female violence <a href="https://www.tandfonline.com/doi/abs/10.1080/00396338.2017.1282675">highly transgressive</a>. The second relates to the power imbalances in women’s radicalisation. Islamic State ran a systemised online recruitment campaign targeting women, with parallels to child sexual exploitation and grooming. Often older men sought out teenage girls. Women desperate to return <a href="https://www.express.co.uk/news/world/949872/isis-news-german-jihadi-brides-syria-terrorism-returning">emphasise their own victimhood</a>. Some women radicalised to join Islamic State report experiences of <a href="https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/radicalisation_awareness_network/ran-papers/docs/issue_paper_gender_dec2015_en.pdf">sexual abuse, domestic or honour-based violence</a>.</p>
<p>This doesn’t deny women agency or excuse them from complicity in Islamic State atrocities, but recognises the context within which their choices were made. It is more important now, in the current chaos of the end of the caliphate when many women may return to their countries of origin, including within Europe and North America, to recognise the complexity of what it meant to be involved in Islamic State.</p>
<p><em>Correction: This article originally stated that Linda Wenzel had been jailed in Baghdad a few days after Shamima Begum. It has been corrected to read that she was jailed in 2018, a year before.</em></p><img src="https://counter.theconversation.com/content/112048/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elizabeth Pearson has previously received funding for her research from the Economic and Social Research Council and Kanishka, Canada. </span></em></p>Women used to be largely ignored by counter-radicalisation strategies. Why that changed.Elizabeth Pearson, Lecturer at the Cyber Threats Research Centre, Swansea UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1118752019-02-15T13:28:08Z2019-02-15T13:28:08ZShamima Begum: why the IS teenager should be allowed to return to the UK<p>One of the so-called “<a href="https://theconversation.com/bethnal-green-girls-need-to-know-there-is-a-way-out-of-islamic-state-cult-38004">Bethnal Green Girls”</a>, Shamima Begum, is <a href="https://www.thetimes.co.uk/article/shamima-begum-bring-me-home-says-bethnal-green-girl-who-fled-to-join-isis-hgvqw765d">looking to return home to the UK</a>. After nearly four years living with the so-called Islamic State (IS), the 19-year-old who is nine-months pregnant, was interviewed by The Times newspaper in a refugee camp in Syria. </p>
<p><a href="https://www.bbc.co.uk/news/uk-47248555">Coverage has focused</a> on whether or not she should be “allowed” home, but there is little legal basis to deny her – and her unborn child – that right. The security minister, Ben Wallace, told the BBC she <a href="https://www.bbc.co.uk/news/uk-47237051">could face possible prosecution</a> if she returned to the UK. Now the debate needs to move forward, and consider how best to treat her if she does return. </p>
<p>Part of the argument against letting Begum return to the UK, or for locking her up indefinitely if she did, is the idea that once someone becomes a terrorist, they are always a terrorist. This reaction stems from a fear of her carrying out a violent or criminal act in the future. Fear is what <a href="https://theconversation.com/islamic-state-hates-what-ariana-grande-stands-for-thats-why-we-should-celebrate-her-78551">terrorist groups like IS want</a>, because it undermines core British values and the way of life in the UK. </p>
<p>But let’s look at the risks. A study by researchers Thomas Hegghammer and Petter Nesser estimated that the rate of attacks by IS fighters returning to the West between 2011 and 2015 appeared to be just <a href="http://www.terrorismanalysts.com/pt/index.php/pot/article/view/440/html">one in 360</a>. An earlier study looking at jihadis returning to the West between 1980 and 2010 revealed that <a href="http://hegghammer.com/_files/Hegghammer_-_Should_I_stay_or_should_I_go.pdf">11% became</a> involved in domestic terror plots – and this was a maximum likelihood estimate due to the availability of the data. Such threats also reduce after <a href="https://www.tandfonline.com/doi/full/10.1080/09546553.2018.1497987">one year of returning home</a>. Another study found <a href="http://roar.uel.ac.uk/4820/1/Risk%20assessment.pdf">that rates of reoffending were lower</a> than for those convicted of other types of crimes. </p>
<p>Rather than succumbing to the politics of fear, we must focus on the rule of law. While prosecuting transnational terrorism is difficult for practical and jurisdictional reasons – it is nevertheless possible.</p>
<p>In 2016, the Home Office <a href="https://www.telegraph.co.uk/news/2016/05/21/only-one-in-eight-jihadists-returning-to-uk-is-caught-and-convic/">estimated</a> that one in eight “foreign fighters” returning home were prosecuted. Other women, such as <a href="https://www.theguardian.com/uk-news/2016/feb/01/british-woman-tareena-shakil-convicted-being-isis-member-jailed-xx-years">Tareena Shakil</a>, have returned to the UK from IS and been convicted. Shakil is currently serving a six-year jail sentence.</p>
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<a href="https://theconversation.com/how-the-authorities-can-prosecute-is-fighters-who-return-to-britain-explained-86101">How the authorities can prosecute IS fighters who return to Britain – explained</a>
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<p>The UK must allow Begum a fair trial and allow the justice system to work. A fair trial would also uphold her human rights, and acknowledge that these mean that she should be supported in her journey towards reintegration and rehabilitation.</p>
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<h2>Rehabilitation and reintegration</h2>
<p>The challenge of reintegrating, demobilising and rehabilitating former terrorists is not new. The UK has a track record of doing so in <a href="https://academic.oup.com/ijtj/article/6/2/274/2357091">Northern Ireland</a>, and in Germany and Scandinavia, “<a href="https://www.exit-deutschland.de/english/">exit</a>” programmes have been set up to help people leave neo-Nazi groups. </p>
<p>The difficulty is that such programmes often work on the presumption that people want to abandon violent extremism and voluntarily leave terrorist groups. The pathways to leaving an extremist group are as diverse as the radicalisation process – sometimes the motives can be practical and pragmatic, such as battle fatigue or disillusionment with the group, while other times they are ideological, with people no longer believing in the cause. </p>
<p>From the interview she gave to The Times, it appears Begum hasn’t abandoned the cause and only left because of the scale of fighting and her side was losing. She criticised IS, saying it could no longer claim to be a “caliphate”, as it could not support her and her unborn child, but she maintained that she has “no regrets”. From these words she appears unrepentant and so the reintegration and rehabilitation process will be harder – but not impossible. </p>
<p>There are examples from former rebels in <a href="https://www.inclusivesecurity.org/publication/engaging-women-in-disarmament-demobilizaton-and-reintegration-ddr-insights-for-colombia/">Colombia</a> and members of the <a href="https://peacekeeping.un.org/en/disarmament-demobilization-and-reintegration">Al-Shabab</a> terrorist group in East Africa of successful rehabilitation and reintegration efforts despite participants still believing in “the cause” and still being in a conflict zone. </p>
<p>Yet disarmament, demobilisation and reintegration programmes face <a href="https://www.theguardian.com/commentisfree/2019/jan/14/woman-boko-haram-nigeria-militant-group">challenges too</a>. These include issues around recognising women’s roles in terrorism, which can leave them without the appropriate support, and issues in not addressing the reasons somebody joined a terrorist group. Participants in such programmes can also face stigma and a backlash from their home communities. </p>
<p>Lessons must be learnt and future programmes adapted accordingly, for example to recognise the importance of addressing all three core components of radicalisation: <a href="https://blog.bham.ac.uk/cpur/2018/03/22/women-and-radicalisation/">beliefs, behaviours, and modes of belonging</a>. Practically, this means providing skills for a better future, counselling to address trauma and beliefs and carefully monitoring who a person interacts with.</p>
<h2>Restorative justice</h2>
<p>The UK has to uphold and promote the rights of victims of terrorist attacks as well, which includes treating them fairly and supporting their needs. This means that Begum and other returnees from IS territory must be held accountable for their actions. Given the challenges of a successful prosecution, any rehabilitation and reintegration programme must also consider a restorative justice component. </p>
<p>Restorative justice, such as that seen in <a href="https://www.thedailybeast.com/two-decades-after-genocide-rwandas-women-have-made-the-nation-thrive">Rwanda</a> after the genocide, includes working to redress some of the harms caused by terrorism through community or advocacy work. For example, some “<a href="https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/radicalisation_awareness_network/ran-best-practices/docs/exit_strategies_en.pdf">formers</a>” of extremist groups work with young people, those at risk of radicalisation, and those who are already radicalised. Some “formers”, such as <a href="https://www.csmonitor.com/World/Europe/2016/0306/From-IRA-to-Islamists-former-radicals-unite-to-become-a-force-for-peace">Yasmin Mulbocus and Abdullah X</a>, are forces for peace who actively counter the ideologies and activities of extremists. </p>
<p>A fair trial, rehabilitation, and restorative justice, as a combined response to Begum’s return could minimise her risk of joining a different extremist group and of carrying out a future attack. This three-pronged approach is also a powerful antidote to terrorist messages and their violence because it’s rooted in core British values: human rights and the rule of law.</p><img src="https://counter.theconversation.com/content/111875/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Katherine E. Brown does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A schoolgirl who left Bethnal Green to join Islamic State in Syria is now in a refugee camp and wants to return to the UK.Katherine E. Brown, Senior Lecturer in Islamic Studies, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1051982018-10-17T22:55:56Z2018-10-17T22:55:56ZWhy Canada must prosecute returning ISIS fighters<figure><img src="https://images.theconversation.com/files/241118/original/file-20181017-41122-br0nrc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Nadia Murad, co-recipient of the 2018 Nobel Peace Prize, listens to a question at a news conference at the National Press Club in Washington, D.C., on Oct. 8, 2018.
</span> <span class="attribution"><span class="source">(AP Photo/Andrew Harnik)</span></span></figcaption></figure><p><a href="https://www.theguardian.com/commentisfree/2018/oct/06/nadia-murad-isis-sex-slave-nobel-peace-prize">Human rights champion Nadia Murad</a> was recently co-awarded the Nobel Peace Prize. In August 2014, Murad’s village in northern Iraq was attacked by the Islamic State in Iraq and Syria (ISIS) and she was sold into sexual slavery.</p>
<p>She managed to escape, sought asylum in Germany in 2015 and has fought for the rights of the Yazidi minority ever since. Upon becoming a Nobel laureate, <a href="https://www.reuters.com/article/us-nobel-prize-peace-murad-statement/yazidi-activist-nadia-murad-on-receiving-the-nobel-peace-prize-idUSKCN1MF1XE">she said:</a> </p>
<blockquote>
<p>“We must work together with determination — so that genocidal campaigns will not only fail, but lead to accountability for the perpetrators. Survivors deserve justice. And a safe and secure pathway home.”</p>
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<p>Accountability has become a key issue. While the United States-led international coalition has dislodged ISIS from the cities it had occupied and controlled, <a href="https://www.nytimes.com/2017/10/17/world/middleeast/isis-syria-raqqa.html">namely Mosul and Raqqa</a>, the group is weakened but not dead. </p>
<h2>ISIS remains a force in the Middle East</h2>
<p>Both the U.S. Department of Defense and the United Nations estimate that approximately <a href="https://www.france24.com/en/20180823-counting-islamic-state-members-impossible-task">30,000 ISIS fighters</a> remain in those countries.</p>
<p>At the same time, a significant number of foreign fighters from places like Canada, the U.K. and Australia have fled Iraq and Syria. Numerous countries are struggling to find <a href="https://www.nytimes.com/2017/02/13/world/australia/citizenship-isis-khaled-sharrouf.html">policy solutions</a> on how to manage the return of their nationals who had joined the group. </p>
<p>The Canadian government has stated publicly that it favours taking a <a href="https://www.cbc.ca/news/politics/hamilton-trudeau-town-hall-1.4481025">comprehensive approach</a> of reintegrating returnees back into society. Very few foreign fighters who have returned to Canada have been prosecuted.</p>
<p>Things are about to become much more complicated for officials in Ottawa. Stewart Bell of <em>Global News</em>, reporting recently from Northern Syria, <a href="https://globalnews.ca/news/4526514/canadian-isis-caught-in-turkey/">interviewed</a> Canadian ISIS member Muhammad Ali who is being held by Kurdish forces in a makeshift prison.</p>
<p>Ali admits to having joined ISIS and acting as a sniper, and playing soccer with severed heads. He also has a digital record of using social media to incite others to commit violent attacks against civilians and recruiting others to join the group.</p>
<p>Another suspected ISIS member, <a href="https://www.theguardian.com/world/2018/oct/06/suspected-british-isis-fighter-could-face-repatriation-to-canada">Jack Letts</a>, a dual Canadian-British national, is also locked up in northern Syria. The same Kurdish forces are adamant that the government of Canada repatriate all Canadian citizens they captured on the battlefield.</p>
<h2>Soft on terror or Islamophobic</h2>
<p>The issue of how to manage the return of foreign fighters has resulted in highly political debates in Ottawa, demonstrating strong <a href="https://www.ctvnews.ca/politics/plan-to-deal-with-returning-isis-fighters-sparks-fiery-exchange-between-scheer-pm-1.3698183">partisan differences</a> on policy choices and strategies to keep Canadians safe. </p>
<p>The Liberal government has been accused of being soft on terrorism and national security, while the Conservative opposition has been charged with “fear mongering” and “Islamophobia” for wanting a tougher approach, namely prosecuting returnees.</p>
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<img alt="" src="https://images.theconversation.com/files/241122/original/file-20181017-41140-4wn6sw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/241122/original/file-20181017-41140-4wn6sw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=421&fit=crop&dpr=1 600w, https://images.theconversation.com/files/241122/original/file-20181017-41140-4wn6sw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=421&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/241122/original/file-20181017-41140-4wn6sw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=421&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/241122/original/file-20181017-41140-4wn6sw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=529&fit=crop&dpr=1 754w, https://images.theconversation.com/files/241122/original/file-20181017-41140-4wn6sw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=529&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/241122/original/file-20181017-41140-4wn6sw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=529&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A member of the Asaish Kurdish security force shows a reporter the inside of an ISIS fighters house in February 2017 in Bashiqa, Iraq. The town in the Mosul district was liberated in November 2016 after being under ISIS control for two years.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Ryan Remiorz</span></span>
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<p>But the most important point is that Canada has both a moral and legal duty to seek justice and uphold the most basic human rights of vulnerable populations. </p>
<p>ISIS and other jihadi groups have engaged in systematic mass atrocities against minorities in Iraq and Syria, including Christians and Shiites. ISIS has demonstrated a particular disdain for the <a href="https://www.ohchr.org/Documents/HRBodies/HRCouncil/CoISyria/A_HRC_32_CRP.2_en.pdf">Yazidi minority in Iraq</a>. The Canadian government <a href="http://natoassociation.ca/canadian-government-acknowledges-isis-genocide-against-the-yazidis-now-what/">recognized the group’s crimes against the Yazidis</a> as genocide. </p>
<p>As a state party to the <a href="https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf">Rome Statute</a> of the International Criminal Court, and a signatory of the <a href="https://www.ohchr.org/en/professionalinterest/pages/crimeofgenocide.aspx">Convention on the Prevention and Punishment of the Crime of Genocide</a>, Canada has a responsibility to uphold these international legal conventions when formulating carefully crafted policy responses that deal with returning foreign fighters.</p>
<h2>Trials can serve as deterrents</h2>
<p>Canada has the option to prosecute its nationals in domestic courts using the <a href="http://laws-lois.justice.gc.ca/eng/acts/C-45.9/page-2.html#h-5">Crimes Against Humanity and War Crimes Act</a>.</p>
<p>Open trials can serve as means by which to lay bare ISIS’s narrative and to help counter violent extremism and future atrocities. </p>
<p>They can also serve as a deterrent and warning to other Canadians who might try to join ISIS as it mutates and moves to other countries in the world like Libya, Afghanistan, Egypt, the Philippines, Pakistan or in Mali, where Canadian peacekeepers have just been deployed.</p>
<p>If Canada truly stands for multiculturalism, pluralism, the rule of law, global justice, human rights and the liberal international order, then we must be firm and take a principled stand to prosecute those have fought with ISIS. That includes our own citizens. No doubt Nadia Murad would agree.</p><img src="https://counter.theconversation.com/content/105198/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kyle Matthews is affiliated with the Canadian Global Affairs Institute </span></em></p>If Canada truly stands for multiculturalism, pluralism, the rule of law, global justice, human rights and the liberal international order, we must prosecute our citizens who have fought with ISIS.Kyle Matthews, Executive Director, The Montreal Institute for Genocide and Human Rights Studies, Concordia UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1004252018-07-24T11:24:14Z2018-07-24T11:24:14ZBritish readiness to allow death penalty for IS ‘Beatles’ suspects shows the need to strengthen the law<p>The British home secretary’s decision to <a href="https://www.telegraph.co.uk/news/2018/07/22/uk-drops-death-penalty-guantanamo-opposition-opens-door-execution/">assist authorities in the US</a> with the prosecution of two Islamic State terrorist suspects, <a href="https://www.independent.co.uk/news/uk/politics/uk-isis-beatles-death-penalty-sajid-javid-us-extradition-james-foley-jeff-sessions-a8459556.html">without first seeking assurances</a> that they will not face the death penalty, has attracted criticism from <a href="https://www.amnesty.org.uk/press-releases/uk-javid-signals-huge-backward-step-death-penalty-reported-letter">human rights activists</a>, <a href="https://www.theguardian.com/politics/blog/live/2018/jul/23/javid-says-british-militants-can-be-tried-in-us-without-usual-no-death-penalty-assurance-politics-live">other MPs</a>, and <a href="https://rightsinfo.org/isis-beatles-death-penalty/">legal commentators</a>. While some have suggested that Sajid Javid’s actions contradict long-standing British law and policy, I believe they reveal the need to reform British law and policy regarding the death penalty.</p>
<p>Alexanda Kotey and El Shafee Elsheikh, from West London, are accused of being the last surviving members of the so-called “Beatles” gang of British IS fighters. They were <a href="https://www.bbc.co.uk/news/world-middle-east-42995027">arrested</a> in February by Syrian Kurdish fighters. They are currently detained in Syria on suspicion of committing some horrific atrocities, including the beheadings of US and UK nationals. Britain <a href="https://www.theguardian.com/uk-news/2018/feb/11/calls-grow-isis-beatles-uk-trial-lord-carlile">could seek custody</a> of the two men, given their links to Britain, but Javid has instead assured his American counterpart that the UK will permit their extradition to the US, and will hand over intelligence to help prosecute them over there on charges that are punishable by death. </p>
<p>In his letter to Jeff Sessions, the US attorney general, which was leaked to the <a href="https://www.telegraph.co.uk/news/2018/07/22/uk-drops-death-penalty-guantanamo-opposition-opens-door-execution/">Daily Telegraph</a>, Javid also stated that the UK would not demand assurances that the US would not seek or impose the death penalty on the two men. It is this statement that has inflamed politicians of all parties, lawyers, and activists: they claim that the UK not only has a strong tradition of seeking “no death penalty” assurances, but is also legally obliged to seek such assurances.</p>
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<p>It’s certainly true that UK law, European law, and international law all prohibit states which have abolished the death penalty from extraditing individuals within their jurisdiction if there is a risk that the receiving state will impose a death sentence or carry out an execution. This much is made clear in <a href="https://www.state.gov/documents/organization/187784.pdf">Article 7 of the 2003 extradition treaty</a> between the UK and the US; a decision of the <a href="https://ukhumanrightsblog.com/tag/al-saadoon-and-mufdhi/">European Court of Human Rights in 2010</a>; and in multiple <a href="http://hrlibrary.umn.edu/undocs/829-1998.html">reports</a> of various <a href="http://repository.un.org/bitstream/handle/11176/312168/E_2015_49-EN.pdf?sequence=3&isAllowed=y">UN bodies</a> (see paragraph 57). </p>
<p>And it’s true that the UK has traditionally sought such assurances in extradition cases, including in the <a href="https://rightsinfo.org/how-a-teenage-love-story-turned-into-landmark-torture-case/">notorious Jens Soering</a> case in the late 1980s. US authorities requested the extradition of Soering and his girlfriend to stand trial for murdering her parents in Virginia, and the UK duly sought assurances that Soering would not face a death sentence (his girlfriend pleaded guilty and avoided capital charges).</p>
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Read more:
<a href="https://theconversation.com/lessons-from-history-on-what-to-do-with-foreign-fighters-returning-from-syria-92455">Lessons from history on what to do with foreign fighters returning from Syria</a>
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<h2>Rules on ‘mutual legal assistance’</h2>
<p>But when Ben Wallace, a security minister, was pressed in parliament on the alleged incompatibility of Javid’s letter with the law and policy on extradition in capital cases, which could involve a death penalty, he revealed that the <a href="https://twitter.com/JamieGrierson/status/1021407615178428416">present case is not an extradition</a> one. Kotey and Elsheikh used to be British citizens, but Wallace <a href="https://www.theguardian.com/uk-news/2018/jul/23/uk-will-not-oppose-us-death-penalty-for-isis-beatles">confirmed</a> that their citizenship had been revoked. They are not within the custody of British officials either, so they are not within the jurisdiction of the UK for the purposes of extradition law. </p>
<p>Instead, this is a case about aiding another country with a prosecution, referred to as mutual legal assistance, and the law in this field is not quite the same. The UK’s <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/583304/OSJA_Guidance_2017.pdf">Overseas Security and Justice Assistance Guidance</a> makes it clear that “no death penalty” assurances should be sought before providing intelligence and other assistance. The guidance also makes clear that, on occasion, officials may decide, with ministerial approval, that “there are strong reasons not to seek assurances” and that “given the specific circumstances of the case, we should nevertheless provide assistance”. </p>
<p>In 2017, the National Crime Agency was <a href="https://www.reprieve.org.uk/wp-content/uploads/2017/08/2017_08_29_PRIV-High-Court-Order-NCA-unlawful-action.pdf">rebuked by the High Court</a> for providing assistance to Thai authorities in a case that resulted in the death penalty, but only because the agency didn’t seek ministerial approval first. In the case involving Kotey and El-Sheikh, ministerial authorisation has been given, in the shape of Javid’s letter.</p>
<h2>Strengthen the law</h2>
<p>The problem, then, is not so much the content of Javid’s letter, but the law and policy that has enabled him to take this step. British law and policy is currently premised on a belief that the extradition of a person is qualitatively different to the provision of mutual legal assistance. However, in capital cases, it’s arguable that both extradition and the provision of assistance constitute complicity with the death penalty, and it is unacceptable for an abolitionist state to ever be complicit in a practice that it has roundly condemned. </p>
<p>Up until Javid’s letter emerged, it looked like the UK was aligning its mutual legal assistance policy with its extradition policy. In 2013, the UK followed the likes of Ireland, Germany, Austria, Denmark, Ireland and Norway in <a href="https://www.ohchr.org/Documents/HRBodies/HRCouncil/DrugProblem/Reprieve.pdf">refusing to provide assistance</a> to anti-drug trafficking initiatives in Iran when it became clear that this assistance was contributing to the execution of drug traffickers. The British government, like the European Union, has also <a href="https://www.independent.co.uk/news/world/americas/america-is-running-out-of-lethal-injection-drugs-because-of-a-european-embargo-to-end-the-death-10106933.html">enacted export controls</a> to ensure that private companies cannot export the drugs that are needed for lethal injections. Again, this recognises that the UK must not in any way contribute to the use of capital punishment elsewhere, regardless of whether or not the person facing death is in our jurisdiction. </p>
<p>Those who have expressed disgust with Javid’s letter are right to do so – it flies in the face of British moral opposition to state-sanctioned killings, and it hinders the UK’s ability to promote abolition worldwide. But their anger would be better directed towards strengthening British law and policy against complicity with the death penalty.</p><img src="https://counter.theconversation.com/content/100425/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bharat Malkani does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The British home secretary has decided not to seek assurances from the US that it wouldn’t use the death penalty for an IS duo arrested in Syria. This must be opposed.Bharat Malkani, Senior Lecturer, School of Law and Politics, Cardiff UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/924552018-03-06T10:20:56Z2018-03-06T10:20:56ZLessons from history on what to do with foreign fighters returning from Syria<p>News in early February that <a href="https://www.theguardian.com/commentisfree/2018/feb/09/beatles-captured-britain-isis-fighters-jihadists">Alexanda Kotey and El Shafee Elsheikh</a>, the two remaining alleged members of the so-called “Beatles” gang of British Islamic State (IS) jihadis, had been captured in Syria reportedly <a href="https://www.thetimes.co.uk/article/britain-and-us-row-over-fate-of-captured-isis-terrorists-alexanda-kotey-and-el-shafee-elsheikh-mcf38jdnw">created a diplomatic dispute</a> between the US and Britain. Neither country wanted to assume responsibility for their prosecution. </p>
<p>It’s estimated that some 850 British citizens have travelled to fight in Syria and Iraq since the conflict there erupted in 2011. By early 2018, <a href="https://hansard.parliament.uk/commons/2018-01-31/debates/23418C82-1737-4535-8151-FAD2712F1C68/BritishJihadis(IraqAndSyria)">almost half</a> of them had already returned. But what should be done with British fighters who wish to return to the UK after participating in the Syrian conflict?</p>
<p>Hardliners such as Britain’s defence secretary, Gavin Williamson, <a href="https://www.theguardian.com/politics/2017/dec/07/british-isis-fighters-should-be-hunted-down-and-killed-says-defence-secretary-gavin-williamson">believe</a> that Britons who fought for Islamic State abroad should be hunted down and killed to ensure they never return to the UK. His US counterpart, secretary of defense James Mattis, <a href="https://www.theguardian.com/us-news/2017/may/28/james-mattis-defense-secretary-us-isis-annihilation">expressed</a> similar views. In a <a href="https://hansard.parliament.uk/commons/2018-01-31/debates/23418C82-1737-4535-8151-FAD2712F1C68/BritishJihadis(IraqAndSyria)">special debate</a> on returning British jihadis at the House of Commons in January, Conservative MP Bob Seely pointed out that it’s easier to kill a British jihadi in Syria than it is to arrest, turn or rehabilitate them.</p>
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<p>It seems that, for a while at least, the US-led coalition against IS took this hardline approach. For example, the notorious executioner Mohammad Emwazi, also known as “Jihadi John”, was <a href="http://www.bbc.co.uk/news/uk-35358101">killed by a drone strike</a> in November 2015. The British government <a href="https://hansard.parliament.uk/commons/2018-01-31/debates/23418C82-1737-4535-8151-FAD2712F1C68/BritishJihadis(IraqAndSyria)">estimates</a> that 15% of those who had travelled to Syria and Iraq were killed during the conflict. But with the collapse of IS strongholds, the window of opportunity to use drones and other means to target Western militants who had joined the organisation is closing fast. </p>
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<a href="https://theconversation.com/its-caliphate-largely-gone-islamic-state-plots-another-way-forward-87036">Its 'caliphate' largely gone, Islamic State plots another way forward</a>
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<p>Because Britain is a signatory of the 1961 <a href="http://www.unhcr.org/uk/protection/statelessness/3bbb286d8/convention-reduction-statelessness.html">UN Convention on the Reduction of Statelessness</a>, the Home Office can only deprive a person of their British citizenship if they have dual citizenship. Such cases are rare. </p>
<h2>Lessons from the International Brigades</h2>
<p>Some historical lessons can be drawn from the way Britain and the US handled the return of their citizens who fought as part of the International Brigades in the Spanish Civil War in the late 1930s. In both countries, the government <a href="https://fraserraeburn.com/2018/03/05/balancing-ideology-with-pragmatism-spain-syria-and-returned-foreign-fighters/">was deeply suspicious</a> of the ideology that took these men and women to Spain. </p>
<p>Most of them were communists, members of a party that was perceived as being bent on revolution and overthrowing the governments in Britain and the US. Yet the British security services were sensible enough to understand that these volunteers were not a monolithic group. Some were not ardent ideologues, others had become disillusioned during the war in Spain. As a result, many veterans of the International Brigades were able to enlist in Britain’s armed services and take part in World War II. </p>
<p>In the US, the Office of Strategic Services enlisted veterans of the International Brigades <a href="https://purehost.bath.ac.uk/ws/portalfiles/portal/164018080">to help train new recruits</a> in guerrilla warfare. Part of the rationale behind the incorporation of these “reds” into the war effort was that it would be easier to keep an eye on them in the military than it would in civilian life. </p>
<h2>A fine line</h2>
<p>There are, of course, clear differences between the situation in Europe in 1939 and today. The risk that today’s returning fighters pose is very tangible. At <a href="https://www.theguardian.com/world/ng-interactive/2015/nov/16/men-who-attacked-paris-profile-terror-cell">least five of the men</a> who carried out the attacks in the Bataclan theatre and elsewhere in Paris in November 2015 had been to Syria and joined the ranks of IS before returning to Europe. However, so far, those Britons who have returned from the conflict in Syria and Iraq have not been involved in terror attacks. Those men were radicalised <a href="http://www.bbc.co.uk/news/uk-40161333">in other ways</a>. Not all foreign fighters become domestic terrorists and not all terrorists start off as foreign fighters.</p>
<p>Perhaps for that reason, not everyone in the security services or the government is convinced that those who return pose an immediate threat. MI5 director Andrew Parker <a href="http://www.bbc.co.uk/news/uk-41655488">said</a> that those who have come back from Syria are subject to risk assessment. A minority <a href="https://hansard.parliament.uk/commons/2018-01-31/debates/23418C82-1737-4535-8151-FAD2712F1C68/BritishJihadis(IraqAndSyria)">were prosecuted</a> in accordance with counter-terrorism legislation, but most weren’t and are, presumably, being monitored.</p>
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Read more:
<a href="https://theconversation.com/how-the-authorities-can-prosecute-is-fighters-who-return-to-britain-explained-86101">How the authorities can prosecute IS fighters who return to Britain – explained</a>
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<p>Historically, foreign war volunteers, whether in Spain or in other conflicts, have never been homogeneous in terms of their motivations, commitment and postwar trajectories. Today, a measured approach by the authorities is therefore more likely to help deradicalise those former supporters of IS who have become disillusioned with the cause. Where there is evidence that returning fighters were involved in carrying out crimes while in Syria or that they pose a clear security threat and intend to carry out terrorist attacks after their return, they should certainly be prosecuted. This is certainly the case for the alleged members of the “Beatles” gang. </p>
<p>However, in instances where the security forces don’t see an imminent threat, programmes that aim to reintegrate disillusioned jihadists into society may be more productive in the long run than a heavy-handed approach. This would not only help such individuals escape from a cycle of violence but could also serve as a counter-narrative to the one promoted by extremists. </p>
<p>For instance, there are organisations such as the <a href="https://www.isdglobal.org/">Institute for Strategic Dialogue</a> that make use of networks of former extremists and survivors of violence in an attempt to deradicalise people who look as though they are beginning to drift towards dangerous organisations such as IS. This method does not replace law enforcement but could operate alongside it.</p><img src="https://counter.theconversation.com/content/92455/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nir Arielli does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>What should the UK do with foreign jihadis who return home?Nir Arielli, Associate Professor of International History, University of LeedsLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/861012017-10-31T14:08:16Z2017-10-31T14:08:16ZHow the authorities can prosecute IS fighters who return to Britain – explained<p>The international military coalition fighting against so-called Islamic State (IS) achieved a notable victory in October by <a href="https://hansard.parliament.uk/commons/2017-10-24/debates/C9F5648A-5F04-4F47-AE17-D5D5B1085654/RaqqaAndDaesh">retaking the Syrian city of Raqqa</a>, the “capital” of IS’s self-declared caliphate in parts of Iraq and Syria. As the size of the territory held by IS continues to shrink, there are growing concerns about the number of foreign fighters returning to Europe and what to do about them. </p>
<p>Since 2014, when IS declared its new caliphate, <a href="http://thesoufancenter.org/wp-content/uploads/2017/10/Beyond-the-Caliphate-Foreign-Fighters-and-the-Threat-of-Returnees-TSC-Report-October-2017.pdf">thousands</a> of foreign fighters from across the world have travelled to join its fight. In July 2017, the government <a href="http://www.parliament.uk/written-questions-answers-statements/written-question/commons/2017-07-10/3851">estimated</a> that 850 British nationals had travelled to fight in Syria or Iraq and that around half had returned – although not all of these were affiliated with IS. </p>
<p>These returning foreign terrorist fighters present a <a href="https://www.theguardian.com/commentisfree/2017/oct/30/britain-isis-returnees-killingislamic-state">considerable challenge</a> for the authorities. Returnees fall into <a href="http://thesoufancenter.org/wp-content/uploads/2017/10/Beyond-the-Caliphate-Foreign-Fighters-and-the-Threat-of-Returnees-TSC-Report-October-2017.pdf">different categories</a>, each presenting a different level of risk. For example, those only in IS-controlled territory for a short while are different from those fully committed to the IS cause who are sent abroad by IS. </p>
<p>There are a variety of measures that could be deployed in response, including some form of <a href="https://icct.nl/publication/could-repatriating-foreign-fighters-make-europe-safer/">amnesty</a> or possibly a programme of reintegration – an approach <a href="https://www.theguardian.com/world/2014/nov/12/deradicalise-isis-fighters-jihadists-denmark-syria">used in Denmark</a>. But the most likely course of action is criminal prosecution. </p>
<h2>Format of the prosecution</h2>
<p>Before any prosecution is launched, the prosecutor <a href="http://www.cps.gov.uk/publications/docs/code_2013_accessible_english.pdf">must be satisfied</a> that there is sufficient evidence to provide a realistic prospect of conviction. Then, the prosecutor must be satisfied that a prosecution is required in the public interest. These decisions can be <a href="http://www.bbc.co.uk/news/uk-40355492">difficult to make</a>. In addition to these tests, for any prosecution of returning foreign terrorist fighters the <a href="http://www.legislation.gov.uk/ukpga/2006/11/section/19">permission of the attorney general</a> is required.</p>
<p>IS is a <a href="https://www.gov.uk/government/publications/proscribed-terror-groups-or-organisations--2">proscribed</a> terrorist organisation in the UK, based on the definition of “terrorism” set out in the <a href="http://www.legislation.gov.uk/ukpga/2000/11/section/1">Terrorism Act 2000</a>. </p>
<p>But when it comes to prosecuting foreign fighters, prosecutors will turn to the Terrorism Act 2006, in particular <a href="http://www.legislation.gov.uk/ukpga/2006/11/section/2">Section 2</a> and <a href="http://www.legislation.gov.uk/ukpga/2006/11/section/5">Section 5</a>. <a href="http://www.bbc.co.uk/news/uk-england-bristol-41802493">Prosecutions</a> under this act are also used in relation to people <a href="http://www.bristolpost.co.uk/news/bristol-news/bristol-man-who-fought-against-209179">who travelled to Iraq or Syria</a> and who fought against IS. </p>
<p>Section 5 relates to “preparation of terrorist acts” and makes it an offence for a person to engage in the preparation of acts of terrorism, or to assist others in their preparation. The prosecution must prove that the person had a specific intent to commit an act or acts of terrorism, but the offence can encompass a wide range of different levels of criminality. </p>
<p>The <a href="http://www.legislation.gov.uk/ukpga/2015/9/section/81">Serious Crime Act 2015</a> provided for what’s called “extra-territorial jurisdiction” for offences under Section 5. Before this amendment to the law, efforts to secure a conviction had to be based solely on plans made prior to the person’s departure from the UK. Now it is possible to use any relevant activity undertaken abroad in evidence, for example there might be testimony from people the accused encountered in Syria.</p>
<p>The case of <a href="https://www.cps.gov.uk/publications/prosecution/ctd_2016.html">Mohammed Uddin</a> is an example of a successful prosecution under Section 5. He was stopped in 2014 when he left Syria and crossed the border back into Turkey. Clothing found in his rucksack consisted mainly of outdoor active wear which resembled that worn by professional security services. Conversations found within the social media applications on his media devices provided evidence of his intention to engage in combat. In 2016, he was sentenced to seven years’ imprisonment. </p>
<p>Section 2 relates to “dissemination of terrorist publications” and makes it an offence to distribute a terrorist publication with the intention of encouraging acts of terrorism. Under the act, a terrorist publication is one which could be deemed useful to a person in the commission or preparation of acts of terror.</p>
<p>Ednane Mahmood – who left Britain with the intention of reaching Syria but never made it – was <a href="https://www.cps.gov.uk/publications/prosecution/ctd_2015.html">convicted of this offence</a> in 2015 after examination of his electronic devices revealed IS propaganda material that amounted to sufficient evidence. </p>
<h2>Available sentences</h2>
<p>In September 2017, Max Hill, the independent reviewer of terrorism legislation, <a href="https://terrorismlegislationreviewer.independent.gov.uk/lecture-to-the-criminal-bar-association-19th-september-2017/">described</a> Sections 2 and 5 of the 2006 act as the “charges of choice for prosecutors which gain far more use than others”. </p>
<p>The maximum sentence for offences under Section 5 is life imprisonment, and seven years for offences under Section 2. In 2016, the <a href="https://www.judiciary.gov.uk/wp-content/uploads/2016/05/r-v-kahar-and-others.pdf">Court of Appeal</a> set out factors that would affect likely sentencing in a Section 5 case. These are the culpability of the offender – mainly in terms of the closeness to carrying out any intended act – and the harm which might have been caused if the act had been successful. </p>
<p>At the moment there is limited guidance for courts on the sentencing of this and other terrorism offences. The Sentencing Council recently <a href="https://www.sentencingcouncil.org.uk/news/item/new-sentencing-guidelines-for-terrorism-offences-proposed/">launched a consultation</a> on its proposed guidelines on sentencing terrorism offences, with the aim of assisting judges to reach appropriate and consistent sentences.</p><img src="https://counter.theconversation.com/content/86101/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Aidan Flynn does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>As Islamic State territory in Iraq and Syria shrinks, concerns are mounting about the number of foreign fighters who may return.Aidan Flynn, Lecturer in Law, Staffordshire UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/785962017-06-04T20:24:09Z2017-06-04T20:24:09ZWhy is it so difficult to prosecute returning fighters?<figure><img src="https://images.theconversation.com/files/171942/original/file-20170602-25658-1littd8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Mosul, in Iraq, is one of two declared 'no-go' zones.</span> <span class="attribution"><span class="source">Reuters/Alaa Al-Marjani</span></span></figcaption></figure><p>As the terrorist organisation Islamic State (IS) suffers <a href="http://www.news.com.au/world/setbacks-put-isis-under-pressure-will-the-islamic-state-fight-back/news-story/7a3111638b4e6fd5dcb1cc8e7bc5e529">further losses</a> in Syria and Iraq, increasing numbers of Australians fighting in those conflicts will likely seek to return home. Around <a href="http://www.smh.com.au/federal-politics/political-news/asio-chief-duncan-lewis-predicts-polarising-and-dividing-problem-of-returning-foreign-fighters-20170322-gv40za.html">100 Australians are fighting with IS</a> in the Middle East, and around <a href="http://www.abc.net.au/news/2017-06-01/abbott-calls-for-special-courts-for-returning-jihadists/8579084">40 have already returned</a>.</p>
<p>Reports that only two of these 40 fighters <a href="http://www.dailytelegraph.com.au/news/nsw/returned-jihadis-roaming-free-in-sydney-not-enough-evidence-to-have-them-jailed/news-story/06453ce90efca3fd1290cb510e71a339">have been prosecuted</a> on return are concerning. This suggests there are serious deficiencies in the government’s ability to successfully prosecute fighters returning from these foreign war zones. </p>
<p>This is despite recent <a href="https://www.ag.gov.au/NationalSecurity/Counterterrorismlaw/Pages/ForeignIncursionsAndRecruitmentOffences.aspx">changes to the law</a> in which the federal parliament strengthened many foreign incursion offences. It is an offence for a person to enter a foreign country with intent to engage in hostile activity, or even to prepare to do so. Both these offences are punishable by life imprisonment.</p>
<p>So what makes it so difficult to prosecute returning foreign fighters? And what other options are available?</p>
<h2>Foreign evidence</h2>
<p>When police investigate a terrorism plot within Australia, they can collect a wide range of evidence to later prove terrorism offences in the courtroom. </p>
<p>Depending on what an investigation uncovers, this evidence can include <a href="http://www.theaustralian.com.au/in-depth/terror/sydney-cops-get-teens-wielding-bayonets-in-terror-raid/news-story/badb813f5e4bf2d64c57fb4ab46ed545">weapons</a> and ammunition, extremist material stored on CDs and computer hard drives, and <a href="http://www.theage.com.au/victoria/victeen-jailed-over-melbourne-terror-plot-20161207-gt5y8s.html">bomb-making materials</a>. </p>
<p>A significant category of evidence used in terrorism trials is transcripts of conversations that Australian police or intelligence agencies have covertly recorded. The statements of witnesses, including undercover intelligence officers, can also be used to prove a person’s guilt. </p>
<p>In theory, similar kinds of evidence could be obtained from overseas and used in an Australian courtroom. Amendments made in 2014 to the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/fea1994147/">Foreign Evidence Act</a> allow for foreign evidence to be adduced in terrorism trials, provided the evidence would not have a “substantial adverse” impact on the ability of the accused to receive a fair trial. </p>
<p>Foreign evidence will not be admissible if the judge is satisfied it was obtained through <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/fea1994147/s27d.html">torture or duress</a>.<br>
In reality, collecting evidence in a foreign war zone is near impossible. Ordinarily, evidence could be provided to the Australian government by a foreign authority, collected through a joint operation with a foreign police service, or <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/sda2004210/s43.html">recorded on surveillance devices</a> with the consent of an appropriate foreign official.</p>
<p>Syria and Iraq remain in a serious state of armed conflict and lack the governance structures for these to be realistic possibilities. </p>
<p>Another obstacle is that much of the information about Australians fighting overseas comes from <a href="http://www.theaustralian.com.au/in-depth/terror/police-face-struggle-to-jail-returning-jihadis/news-story/e450df4d9c2756962fcd000cfe421251">foreign intelligence services</a>, including the UK’s MI6 and the US Central Intelligence Agency. Conditions imposed on the sharing of this material mean the vast majority of it cannot be used as evidence in case it is exposed in open court.</p>
<p>Witness statements could be used to support claims of Australians engaging in terrorism overseas, but unless these are from reliable eyewitnesses, much of this could be <a href="http://www.smh.com.au/federal-politics/political-news/prosecutions-of-foreign-fighters-hard-experts-say-as-labors-matthew-gardiner-returns-home-20150406-1mfdwm.html">excluded as hearsay</a>.</p>
<p>In short, in the absence of an admission, confession or guilty plea, it is likely to prove extremely difficult to prosecute fighters returning from Syria and Iraq. </p>
<h2>Declared area offence</h2>
<p>The most viable option would be to prosecute a returning foreign fighter for <a href="https://www.nationalsecurity.gov.au/WhatAustraliaisdoing/Pages/DeclaredAreaOffence.aspx">entering or remaining in a declared area</a>. This offence, punishable by ten years’ imprisonment, was introduced in 2014. It does not require proof that an individual engaged in hostile activity. It merely requires that the person was present in an area that the foreign minister has declared a “no-go” zone. </p>
<p>Currently, the <a href="https://www.nationalsecurity.gov.au/WhatAustraliaisdoing/Pages/DeclaredAreaOffence.aspx">only declared areas</a> are al-Raqqa province in Syria and the city of Mosul in Iraq. It may still be very difficult to prove that a fighter was in one of these areas. It is possible that video evidence could provide proof, if somebody happened to film a fighter in a recognisable location and the footage was posted online or could otherwise be reliably obtained. </p>
<h2>What other options are available?</h2>
<p>The difficulties in prosecuting returning foreign fighters does not mean Australia faces a “<a href="http://www.dailytelegraph.com.au/news/nsw/is-supporters-free-to-return-to-australia-despite-tough-law-changes/news-story/8480f28ce58a7304e47e94e390fcad44">deluge</a>” of foreign fighters “<a href="http://www.dailytelegraph.com.au/news/nsw/returned-jihadis-roaming-free-in-sydney-not-enough-evidence-to-have-them-jailed/news-story/06453ce90efca3fd1290cb510e71a339">roaming free</a>” without consequence. Many more may still be killed overseas, and others may choose not to return. </p>
<p>At a minimum, those who do return will be subject to close scrutiny and surveillance by ASIO and the Australian Federal Police. If their behaviour becomes criminal – and there is a long list of broad terrorism offences – prosecution could become viable.</p>
<p>Returning foreign fighters may also be subject to control orders. These court-imposed orders enforce requirements such as abiding by a curfew, reporting regularly to police, and wearing an electronic monitoring bracelet. </p>
<p>A control order does not require proof that a person has committed a criminal offence. If a person breaches the conditions of an order, they will face five years in prison.</p>
<p>Australian police and intelligence agencies will explore these and other possibilities to ensure returning foreign fighters do not cause harm to the community. It is possible that prosecution may still be the intended strategy in many cases. But it takes time to build a solid case given the difficulties of gathering evidence. </p>
<p>Even so, the apparent challenges with prosecution suggest that returning fighters will pose a difficult security challenge for Australia in coming years. Surveillance of large numbers of returning fighters will be expensive and require significant resources, so this is not a realistic long-term solution.</p>
<p>These difficulties also demonstrate the limits in continually responding to terrorism with ever-stronger counter-terrorism powers. Many of the laws now proving difficult to prosecute were framed by the Abbott government as an <a href="http://www.sbs.com.au/news/article/2014/10/22/foreign-fighter-law-be-passed-next-week">urgent and necessary response to terrorism</a>.</p><img src="https://counter.theconversation.com/content/78596/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Keiran Hardy does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There are many obstacles to successful prosecution, including obtaining evidence in a war zone and using foreign intelligence in court.Keiran Hardy, Lecturer, School of Criminology and Criminal Justice and Member, Griffith Criminology Institute, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/772012017-05-07T12:41:49Z2017-05-07T12:41:49ZIntegrating radical fighters who return home isn’t easy, but can be done<figure><img src="https://images.theconversation.com/files/167957/original/file-20170504-20192-zwzt25.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Tunisians demonstrate against the return of jihadists fighting for extremist groups abroad </span> <span class="attribution"><span class="source">Reuters/Zoubeir Souissi</span></span></figcaption></figure><p>Thousands of youths have been recruited by terrorist groups from Africa, the Middle East, Europe, Asia and America. Between 2011 and 2016 <a href="https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/radicalisation_awareness_network/ran-papers/docs/issue_paper_foreign_fighter_returnees_reintegration_challenge_112016_en.pdf">the number of “foreign fighters”</a> rose to more than 42,000 – among them <a href="http://www.france24.com/en/20161011-europe-prisons-jihadists-recruitment-study-islamic-state-group-terrorism">5000 Westerners</a> and close to <a href="http://www.telegraph.co.uk/news/2016/03/29/iraq-and-syria-how-many-foreign-fighters-are-fighting-for-isil">7000 North Africans</a>. They had travelled to the Middle East to join jihadist organisations such as the so-called “Islamic State” (IS) and the Syrian Fateh al-Sham Front (ex-Al-Nusra), a former al Qaeda affiliate. </p>
<p>By early 2016, almost a third of these foreign fighters had returned to their <a href="https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/radicalisation_awareness_network/ran-papers/docs/issue_paper_foreign_fighter_returnees_reintegration_challenge_112016_en.pdf">countries of origin</a>. Now that IS is suffering serious military setbacks, the flow of foreign fighters seems to have dwindled. More returnees can be expected to follow in the near future. </p>
<p>In North Africa, hundreds of men and women who joined IS or Fateh al-Sham Front have returned home with combat experience. They pose a major security threat to the region. At least <a href="http://www.tunisia-live.net/2014/02/25/around-400-tunisians-have-returned-from-war-in-syria-interior-minister-says">400</a> Tunisians have, so far, returned to the country. Authorities are concerned they could be coordinating new attacks with terrorist networks.</p>
<p>These fears are not without foundation. Terrorist groups like IS continue to encourage those within Europe and Africa (whether returnees or supporters) <a href="http://www.statewatch.org/news/2016/dec/eu-council-ctc-foreign-fighters-returnees-policy-options-14799-16.pdf">to carry out attacks from their home nations</a>.</p>
<p>So how should governments manage these returnees? It’s not an easy question to answer but <a href="http://prishtinainsight.com/syria-returnee-seeks-prevent-others-becoming-violent-extremists/">accounts</a> of <a href="https://www.apnews.com/b9b54744173746beb1e07502904ec56f">returnees</a> provide some insights. What’s clear is that there are many facets of radicalised youth – and that there’s no single solution to eradicate this social evil.</p>
<p>What the available evidence suggests is that governments must respond realistically to a complex problem. And they need to accept that opting for the reintegration of (former) terrorists to minimise the possibilities of future violence is not adopting a soft approach. Realistically, it’s the only approach.</p>
<h2>Refugees and migrants are not terrorists</h2>
<p>The fear of further attacks has driven the media to draw a link between anti-terror measures and immigration policy that is “analytically and statistically unfounded, and must change”, <a href="http://www.independent.co.uk/news/world/europe/refugee-crisis-terrorism-link-migration-un-expert-report-no-evidence-isis-uses-route-human-rights-a7377961.html">according to Ben Emmerson</a>, the UN’s Special Rapporteur on counter-terrorism and human rights. </p>
<p>The report recommends that countries should realise the vast majority of Syrian refugees and others are victims of terrorism. They must not be regarded as potential suspects. It also calls on states to respect migrants’ fundamental rights and warns that attempts to snub asylum seekers or detain migrants are a violation of human rights and international refugee law. Emmerson warned that operations to stop migration may also increase <a href="http://www.independent.co.uk/news/world/europe/refugee-crisis-terrorism-link-migration-un-expert-report-no-evidence-isis-uses-route-human-rights-a7377961.html">the risk of attacks in Europe</a>.</p>
<p>This suggests the vital need for strategies that address issues of migration and refugees, and the risks that returning foreign fighters may pose.</p>
<p>Unlike refugees or migrants, foreign fighters returning from the conflict in Syria and Iraq are a serious security threat at home and internationally. While in the war zone, they joined terrorist networks, adopted techniques like suicide bombings and beheadings, and set up ties with other jihadists around the globe.</p>
<p>Different countries have different mitigating factors that limit the danger. The presence of tough and focused security services is particularly important. Several countries in Africa and Europe have developed an individual risk management and analysis for returnees. These people are categorised according to the duration they spent in the war zone, what they did there and their goal after their return.</p>
<p>Criminal trials are favoured in most European and African countries for dealing with returnees. But trials don’t usually result in convictions; evidence against the returnees is often lacking.</p>
<p>This shows the critical need for a comprehensive approach that gets local authorities and social partners involved. These could include, for example, Child Protection Services, Social Services and the health sector. </p>
<h2>Strategies to combat the risks</h2>
<p>North African nations must decide how to handle returnees.</p>
<p>Tunisia has around <a href="https://www.theguardian.com/world/2014/oct/13/tunisia-breeding-ground-islamic-state-fighters">2,400</a>. The country has <a href="https://www.alaraby.co.uk/english/indepth/2017/2/28/tunisia-returning-jihadists-highlight-desperate-need-for-prison-reform">poor rehabilitation processes and policies in place</a>.
Morocco had an estimated <a href="https://www.swp-berlin.org/fileadmin/contents/products/comments/2015C46_msb.pdf">1,500</a> citizens fighting in Syria and Iraq as of October 2015. Some returnees have been jailed, but the country still needs to develop an effective strategy to deal with others. </p>
<p>Some decision makers seem to feel that returnees will always be terrorists who present a permanent threat to national security. But a dialogue is necessary with the returnees. They must be retrained and reintegrated into their own societies. </p>
<p>To make reintergration feasible, the government must take an all-inclusive approach. This would entail including returnees’ families, neighbourhoods and local communities in the process. It also requires partnership with government, schools, universities, civil society organisations, and the private sector. </p>
<h2>Deradicalisation and reintegration</h2>
<p>The deradicalisation of (former) terrorists or extremists can be viewed as a process geared at ensuring their reintegration into society in a way that minimises the chances they will resort to terrorism-related activity.</p>
<p>Reintegration plans must therefore be flexible and tailored to an individual’s specific background and motives. </p>
<p>The deradicalisation programme, which combines education with anti-violence training, is an attempt to disentangle the individual’s sense of hatred from his or her political vision of the world and address both the motives behind their hate sentiments. It also aims to reintroduce them to democratic values and peaceful ways of expressing their feelings and viewpoints.</p>
<p>Numerous <a href="https://www.usip.org/sites/default/files/2017-03/sr402-returning-foreign-fighters-and-the-reintegration-imperative.pdf">reintegration programmes</a> are already underway in Tunisia, Morocco, and many European countries. Most cover a range of activities such as religious and psychological counselling, vocational skills training, education and recreation.</p>
<p>Reintegration programmes should include both deradicalisation and disengagement-based efforts. Deradicalisation, which emphasises erasing violent ideologies from extremists’ minds, is very crucial. But it should be considered one of many possible options through which to limit the possibilities of recidivism.</p>
<p>In this context information sharing, as well as social media monitoring relevant to conflict zones, is of paramount importance.</p>
<p>More research initiatives should be carried out in close cooperation with policy makers and experts. This will enable the successful reintegration of terrorists and extremists in society.</p>
<p>Finally, there is a need for an optimistic environment to send a clear message of hope to migrants, refugees, youth and communities. Governments should continue building relations with them, gaining their trust – and deriving intelligence.</p><img src="https://counter.theconversation.com/content/77201/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Moha Ennaji does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Trying to reintegrate foreign fighters who return home shouldn’t be considered the soft option. Governments in countries like Morocco and Tunisia need to respond realistically to a complex problem.Moha Ennaji, Professor of Linguistics, Gender, and Cultural Studies, International Institute for Languages and CulturesLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/651532016-09-29T00:24:15Z2016-09-29T00:24:15ZAustralia’s proposed war crimes amendments demand careful scrutiny<p>Prime Minister Malcolm Turnbull <a href="https://malcolmturnbull.com.au/media/national-security-statement-on-counter-terrorism">announced</a> this month that the government will seek to amend the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html">Criminal Code</a> to assist in the fight against Islamic State (IS) in Iraq and Syria. The <a href="http://www.minister.defence.gov.au/2016/09/01/prime-minister-minister-for-defence-australian-defence-force-targeting-of-daesh/">changes flagged</a> include:</p>
<blockquote>
<p>… targeting those who may not openly take up arms but are still key to Daesh’s [another name for IS] fighting capability. </p>
</blockquote>
<p>Defence Minister Marise Payne explained that the amendments would enable the Australian Defence Force to target a broader range of IS combatants. Opposition Leader Bill Shorten has indicated Labor <a href="http://www.billshorten.com.au/statement_on_national_security_canberra_thursday_1_september_2016">will support</a> the amendments.</p>
<p>Changes to Division 268 of the Criminal Code would clarify that the war crimes offence of murder would not apply to members of an organised armed group. Also, murder would not apply to collateral civilian deaths resulting from an otherwise lawful attack.</p>
<p>If enacted, this would align Australian domestic law with international law. The government, however, has not yet explained the relevant differences between these laws.</p>
<h2>What is lawful in conflict?</h2>
<p>The Criminal Code, which in part deals with offences in a non-international armed conflict, currently includes an offence of murder. If a perpetrator causes the death of one or more persons not taking an active part in the hostilities, they face a penalty of life imprisonment.</p>
<p>Under current domestic law, if the perpetrator knows, or is reckless as to whether the person or persons are not taking an active part in the hostilities, and attacks, they have broken the law.</p>
<p>International humanitarian law, or the law of armed conflict, has very detailed rules about this. Targeting people “who are not taking an active part in the hostilities” is unlawful. </p>
<p>In 2009, the International Committee of the Red Cross <a href="https://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf">released</a> the Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law.</p>
<p>Some American military lawyers have criticised this document. The main criticism is that it blurs the line between civilians who take an active part in hostilities and members of organised armed groups. State practice also diverges from the Red Cross guidance to some extent.</p>
<h2>How do we decide who is a citizen?</h2>
<p>The Red Cross guidance is based on the fundamental international humanitarian law principle of distinction between armed forces, or members of organised armed groups like IS, and civilians. It says:</p>
<blockquote>
<p>… all persons who are not members of state armed forces or organised armed groups of a party to the conflict are civilians and, therefore, entitled to protection against direct attack unless … they take a direct part in hostilities.</p>
</blockquote>
<p>Individuals who continuously accompany or support an organised armed group, but who do not directly participate in hostilities, are not members of that group within the meaning of international humanitarian law. This is because they do not carry out a “continuous combat function”. </p>
<p>Personnel like recruiters, trainers, financiers and propagandists may not be targeted. This is also true of individuals involved in purchasing, smuggling, manufacturing and maintaining weapons. Unless their activities amount to direct participation in hostilities, they are protected by international humanitarian law. </p>
<p>How far the continuous combat function extends, though, is open to debate. It may extend, for example, to the makers of improvised explosive devices.</p>
<h2>Who would lose protection under the changes?</h2>
<p>Under the proposed changes to Australia’s Criminal Code, the war crime offence of murder, in a non-international armed conflict, would not apply to collateral civilian deaths resulting from an otherwise lawful attack. Clearly, the definition of what constitutes a “lawful attack” needs careful examination. </p>
<p>In international humanitarian law, a lawful attack is one that conforms to <a href="https://books.google.com.au/books?id=pOokAwAAQBAJ&pg=PA330&lpg=PA330&dq#v=onepage&q&f=false">fundamental principles</a> of military necessity and humanity. Specifically, only to the degree: </p>
<blockquote>
<p>… that is required in order to achieve the legitimate purpose of the conflict. Namely, the complete or partial submission of the enemy at the earliest possible moment, with the minimum expenditure of life and resources. </p>
</blockquote>
<p>This severely restricts military action that would result in “collateral civilian deaths”. Part of the objective in amending the war crimes provisions seems to be to incorporate the international humanitarian law principle of <a href="https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_cha_chapter4_rule14">proportionality</a>. </p>
<p>An attack expected to cause incidental loss of civilian life or injury to civilians would therefore be unlawful. If it would be excessive in relation to the concrete and direct military advantage anticipated, it would breach the Criminal Code.</p>
<p>These proposed amendments, when released, should be examined carefully. They must maintain the constraints on military operations imposed by international humanitarian law, which are carefully observed by the Australian Defence Force.</p><img src="https://counter.theconversation.com/content/65153/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kevin Boreham does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Under proposed changes, the war crime offence of murder, in a non-international armed conflict, would not apply to collateral civilian deaths resulting from an otherwise lawful attack.Kevin Boreham, Lecturer in International Law, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/553932016-02-26T06:27:16Z2016-02-26T06:27:16ZA fox guarding the henhouse? Andrew Nikolic takes the reins of parliament’s security committee<figure><img src="https://images.theconversation.com/files/112876/original/image-20160225-15150-d9iuxc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Liberal MP Andrew Nikolic (right) is close to deposed prime minister Tony Abbott.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>Tasmanian Liberal MP Andrew Nikolic <a href="http://www.smh.com.au/federal-politics/political-news/tony-abbott-ally-andrew-nikolic-to-head-powerful-parliamentary-security-committee-20160224-gn23d1.html">has been appointed</a> chair of the <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security">Parliamentary Joint Committee on Intelligence and Security</a>. This committee is responsible for examining the government’s proposed counter-terrorism laws and the administration of Australia’s intelligence agencies. </p>
<p>Nikolic was one of former prime minister Tony Abbott’s strongest supporters. He remains a <a href="http://www.crikey.com.au/2016/02/25/civil-liberties-be-damned-meet-the-new-chair-of-parliaments-national-security-committee/">staunch advocate</a> of stronger counter-terrorism powers for police and intelligence agencies. </p>
<p>Labor has criticised Nikolic’s appointment. Shadow Attorney-General Mark Dreyfus <a href="http://www.abc.net.au/news/2016-02-25/andrew-nikolic-accused-of-'extreme'-views-by-labor/7197954">described Nikolic</a> as a:</p>
<blockquote>
<p>… highly partisan, highly aggressive battler for extreme right-wing views. </p>
</blockquote>
<p>In reply, Nikolic’s predecessor Dan Tehan accused Labor of making a “pathetic attempt of cheap politics”.</p>
<p>Given the important role the committee plays in examining new counter-terrorism laws, Labor is not simply engaging in “cheap politics”. But in an era of ever-increasing counter-terrorism powers, what is Nikolic’s appointment likely to mean for the committee’s work?</p>
<h2>The committee under Tehan</h2>
<p>The committee has played a key role in examining the numerous tranches of national security legislation introduced by the Coalition government in response to the threat of foreign fighters returning from Iraq and Syria and homegrown terrorism.</p>
<p>But despite significant controversy over many of these laws, the committee has largely failed to recommend any substantive changes to the bills as introduced into parliament.</p>
<p>A good example of this <a href="http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034">relates to the offence</a> of entering or remaining in a “declared area”, which provides for ten years’ imprisonment where a person merely steps into an area of a foreign country declared by the foreign minister to be a no-go zone. On the committee’s <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/Counter-Terrorism_Legislation_Amendment_Foreign_Fighters_Bill_2014">recommendation</a>, the government amended the offence as originally drafted so that an entire country could no longer be made a declared area. </p>
<p>The government accepted this change as if it were making a significant concession. But in reality, this did little to alter the offence’s scope; anything less than a whole country could still be declared. In particular, the amendment did nothing to reduce that offence’s impact on the right to freedom of movement or the presumption of innocence. </p>
<p>The legislation dealing with <a href="http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5375">metadata retention</a> was a notable exception to this trend. Significant efforts were made to fix a number of problems with that regime, including that the attorney-general would otherwise have had the power to make regulations granting any organisation access to metadata.</p>
<p>That experience, as well as the more recent inquiry into the <a href="http://www.abc.net.au/news/2015-09-04/changes-to-proposed-citizenship-laws/6748530">citizenship-stripping legislation</a>, provides a useful example of the kind of balanced debate and reform that the committee under Tehan’s leadership was capable of achieving. </p>
<h2>What might we expect under Nikolic?</h2>
<p>Nikolic <a href="http://www.smh.com.au/federal-politics/political-news/terror-threat-makes-civil-liberties-debate-redundant-liberal-mp-andrew-nikolic-says-20151202-gld8er.html">has claimed</a> the new threat of terrorism makes civil liberties “redundant”, and objections to new counter-terrorism powers amount to “impractical nonsense”. It is this strongly held position that may affect his work as chairman of a committee which assesses the impact of counter-terrorism laws on the rights of all Australians. </p>
<p>Just one example of Nikolic’s quick support for the needs of police and how this can undermine productive debate can be seen in the inquiry into the metatadata legislation. During <a href="http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22committees%2Fcommjnt%2F0a5538e0-acc3-4fac-9196-c0d864c143fa%2F0008%22">one public hearing</a>, Australian Privacy Commissioner Tim Pilgrim made a very reasonable suggestion: that a retention period of one year rather than two years may be appropriate, as 90% of metadata requests related to data that was less than 12 months old. </p>
<p>Nikolic questioned Pilgrim as to why one year would be sufficient given the Australian Federal Police’s “definitive” and “deeply held” view that two years was required. His line of questioning led to Dreyfus stepping in to defend Pilgrim. A lengthy and unproductive interchange followed in which all parties involved – including Tehan – struggled to complete a sentence.</p>
<p>This is not to suggest that the blame for that dialogue lay entirely with Nikolic, as Dreyfus was hasty in accusing Nikolic of “verballing the witness”. But it is the kind of heated exchange that Nikolic’s strongly held conservative views and questioning style have the capacity to cause. </p>
<h2>What now?</h2>
<p>Some are seeing Nikolic’s appointment as an attempt by Prime Minister Malcolm Turnbull to appease the Liberal Party’s right wing and help heal some of the wounds from the leadership spill. </p>
<p>This may backfire if Turnbull ultimately loses support among the party’s moderates for appointing a committee chair who does not value a balanced debate about the impacts of counter-terrorism laws on civil liberties to the same extent as his predecessor.</p><img src="https://counter.theconversation.com/content/55393/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Keiran Hardy does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In an era of ever-increasing counter-terrorism powers, what is Andrew Nikolic’s appointment to a powerful parliamentary committee likely to mean for its scrutiny of national security legislation?Keiran Hardy, Lecturer, School of Criminology and Criminal Justice, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/533112016-01-21T19:20:04Z2016-01-21T19:20:04ZWhy we keep getting snared in Islamic State’s propaganda trap<figure><img src="https://images.theconversation.com/files/108516/original/image-20160119-29777-18765ef.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Islamic State propaganda lures both friends and foes into disproportionately focusing on the group's strengths and overlooking its weakness.</span> <span class="attribution"><span class="source">Reuters</span></span></figcaption></figure><p>The rise of Islamic State (IS) has reaffirmed what al-Qaeda and the Taliban proved last decade: strategic communications, particularly counter-propaganda efforts, remains one of the <a href="https://theconversation.com/social-media-response-to-islamic-state-must-be-more-agile-turnbull-53379">key weaknesses</a> of Western counter-terrorism and counter-insurgency strategy. </p>
<p>In November 2007, the then-US defence secretary, Robert Gates, <a href="https://www.k-state.edu/media/newsreleases/landonlect/gatestext1107.html">said</a>:</p>
<blockquote>
<p>It is just plain embarrassing that al-Qaeda is better at communicating its message on the internet than America. As one foreign diplomat asked a couple of years ago: “How has one man in a cave managed to out-communicate the world’s greatest communication society?”</p>
</blockquote>
<p>The world now faces an even more sophisticated foe. The IS propaganda machine has eclipsed its predecessors and peers in its <a href="http://www.tandfonline.com/doi/abs/10.1080/03071847.2014.990810">reach, resonance and relevance</a> to local and transnational audiences.</p>
<h2>Less territory but greater appeal</h2>
<p>The pull of IS propaganda and its ability to mobilise supporters is reflected in some disturbing trends. In the same year that IS <a href="http://press.ihs.com/press-release/aerospace-defense-security/islamic-states-caliphate-shrinks-14-percent-2015">lost almost 13,000km²</a> of territory across Syria and Iraq, the number of foreign fighters it attracted <a href="http://soufangroup.com/wp-content/uploads/2015/12/TSG_ForeignFightersUpdate3.pdf">reportedly doubled</a>.</p>
<p>Official IS <em>wilayats</em> (provinces) have emerged in Africa, the Middle East, Europe and Asia. A <a href="http://www.terrorismanalysts.com/pt/index.php/pot/article/view/440/html">study</a> of Islamist-inspired terrorist plots in the West between January 2011 and June 2015 revealed that of 69 plots, 30 had an IS connection. Twenty-six of these occurred between July 2014 and June 2015. </p>
<p>IS plots were almost twice as likely to be executed compared to non-IS-connected plots. This is despite most perpetrators having not met or communicated with IS leaders.</p>
<p>How broader communities perceive the IS threat is also indicative of the potency of the group’s propaganda. In Afghanistan, where IS’s Wilayat Khurasan has attracted disgruntled locals and former Pakistan and Afghan Taliban members, an Asia Foundation <a href="http://asiafoundation.org/afghansurvey/">survey</a> found that 54.2% of respondents who had heard of IS believed that the group posed a current or future threat to their district. </p>
<p>Similarly, the 2015 Lowy Institute poll <a href="http://www.lowyinstitute.org/news-and-media/press-releases/lowy-institute-poll-finds-australians-fears-rising-and-terrorism-biggest-security-risk">found</a> that Australians saw terrorism as the highest national security priority: 69% of respondents believed that IS’s rise represented the greatest threat to Australia’s security. </p>
<p>Even in the US, where attacks by militant right-wingers are <a href="http://securitydata.newamerica.net/extremists/deadly-attacks.html">more frequent</a> than those by jihadists, IS regularly dominates domestic security discussions. IS’s propaganda campaign has been a crucial driver of these trends, but so too has been the failure to counter it effectively.</p>
<h2>Deciphering the siren call</h2>
<p>Having analysed Arabic and English IS communiques and interviewed dozens of locals from the <a href="https://theconversation.com/the-forgotten-front-guerrilla-radio-and-syrias-information-war-39756">Middle East</a> and <a href="https://theconversation.com/from-kabul-with-fading-hopes-afghanistans-war-continues-47477">South Asia</a> who are battling IS media, it is clear that a potent strategic logic is driving the group’s propaganda campaign. </p>
<p>The <a href="http://www.tandfonline.com/doi/full/10.1080/10357718.2015.1059799">overarching purpose</a> of IS messaging is to shape the perceptions and polarise the support of contested populations – friends and foes alike. It achieves this by producing communiques that appeal to its audience’s rational-choice and identity-choice decision-making processes.</p>
<p>IS’s propaganda trademark may be identity-choice appeals that call for fellow Sunnis to join “their” caliphate and follow “true” Islam. However, rational-choice appeals (cost-benefit considerations), especially those that highlight IS’s politico-military successes versus its opponents’ failures, feature prominently in IS messaging. </p>
<p>By interweaving rational- and identity-choice appeals in its messages, IS is aligning powerful decision-making processes in its audience. This may help explain the seemingly rapid radicalisation of its supporters. </p>
<p>Furthermore, IS propaganda lures both friends and foes into disproportionately focusing on the group’s strengths and overlooking its weaknesses. At the same time, it exaggerates the perceived weaknesses of anti-IS forces and disparages their strengths. </p>
<p>To further boost these dynamics, IS’s rational- and identity-choice appeals are packaged in messaging that address a <a href="http://www.quilliamfoundation.org/wp/wp-content/uploads/2015/10/FINAL-documenting-the-virtual-caliphate.pdf">variety of themes</a>. The result is a propaganda campaign that is strategically calibrated to leverage powerful psychosocial forces in its target audiences.</p>
<h2>Tangled in the propaganda trap</h2>
<p>It is soothing to believe that the appeal of IS propaganda is due to slick production, social media and extreme violence. But such views help reinforce misinterpretations of violent non-state political movements as comprised of only irrational actors driven by zeal and bloodlust. </p>
<p>If true, flashy pictures and gore delivered instantly over the internet would appeal to such savages. But this phenomenon is more complex, the reality more disturbing and the enemy more sophisticated than that.</p>
<p>As a member of the Syrian opposition warned me, IS uses propaganda to coax its enemies into misguided politico-military and strategic communications efforts. We keep getting snared in IS’s traps because the field has not developed a nuanced understanding of both the top-down strategic logic of extremist propaganda and the bottom-up dynamics of how audiences perceive and respond to such messaging.</p>
<p>Given the immense military and financial pressures IS is facing, expect it to rely increasingly on a fusion of asymmetric combat operations and targeted propaganda to sustain its slogan: remaining and expanding.</p>
<p>Some will take solace from these strategic shifts as indicators of a weakening IS. But, as last year proved, such changes do not necessarily mean IS’s appeal will diminish – nor that attacks like <a href="https://theconversation.com/paris-terror-attacks-france-now-faces-fight-against-fear-and-exclusion-50703">Paris</a> or <a href="https://theconversation.com/qanda-why-did-terror-hit-jakartas-streets-and-what-happens-next-53170">Jakarta</a> will cease. The opposite may prove true.</p><img src="https://counter.theconversation.com/content/53311/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Haroro J. Ingram receives funding from the Australian Research Council's DECRA scheme. This project analyses insurgent propaganda and explores its role as a determining factor in the success of insurgent movements.</span></em></p>Islamic State uses propaganda to coax its enemies into misguided politico-military and strategic communications efforts.Haroro J. Ingram, Research Fellow, Coral Bell School of Asia Pacific Affairs, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/490742015-10-15T23:26:53Z2015-10-15T23:26:53ZControl orders for kids won’t make us any safer<figure><img src="https://images.theconversation.com/files/98570/original/image-20151015-30744-3y88jp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The government is set to extend control orders to children as young as 14.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>Attorney-General George Brandis has <a href="http://www.attorneygeneral.gov.au/Mediareleases/Pages/2015/FourthQuarter/12-October-2015-National-Security-Legislation.aspx">flagged</a> that, in a fifth tranche of counter-terrorism laws to be introduced to parliament in the coming weeks, the government will lower the age at which a control order can be applied from 16 to 14 years of age.</p>
<p>Since Brandis’ initial announcement, Justice Minister Michael Keenan has <a href="http://www.theaustralian.com.au/in-depth/terror/control-order-crackdown-on-pre-teen-terrorists/story-fnpdbcmu-1227570889746">said</a> the government is open to extending control orders to children as young as 12. But whether lowering the age at which a person can be subject to a control order to 14 – or even 12 – will make Australia safer is less than clear.</p>
<h2>What are control orders?</h2>
<p>Control orders are civil measures that impose obligations and restrictions on an individual. A court can issue a control order only if it will substantially help prevent a terrorist attack, or if the person against whom an order is being made has trained or participated in training with a listed terrorist organisation, engaged in a hostile activity in a foreign country, or been convicted of a terrorism-related offence. </p>
<p>The types of controls that can be imposed include:</p>
<ul>
<li><p>electronic tagging;</p></li>
<li><p>curfews; </p></li>
<li><p>requirements to report to police; and</p></li>
<li><p>restrictions on attending certain places, associating with certain people and using electronic means of communication.</p></li>
</ul>
<p>Control orders were first introduced into Australia in <a href="https://www.comlaw.gov.au/Details/C2006C00754">December 2005</a> in response to the suicide bombings in London earlier that year. They were modelled on the UK’s system. The regime was significantly <a href="https://theconversation.com/security-bill-opens-door-to-targeted-killings-and-broader-control-orders-33631">expanded in 2014</a> as part of amendments to Australia’s anti-terror laws to meet the threat posed by <a href="https://www.comlaw.gov.au/Details/C2014A00116">foreign fighters</a>. </p>
<p>Though <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2007/33.html">upheld as constitutionally valid</a> in 2007, the control order regime has faced significant criticism. Former Independent National Security Legislation Monitor Bret Walker, SC, is sceptical of control orders – not only of the recent proposal to lower the age at which a person can be subject to a control order, but of the regime’s general efficacy. He <a href="http://www.abc.net.au/lateline/content/2015/s4331116.htm">said</a> he was:</p>
<blockquote>
<p>… sure that the notion of control orders for 14-year-olds is no more tested than control orders, really, for anyone. There’s simply no experience from which one could sensibly say, “This is going to make us safer.”</p>
</blockquote>
<p>In his <a href="http://www.dpmc.gov.au/sites/default/files/files/INSLM_Annual_Report_20121220.pdf">2012 annual report</a> Walker reviewed the operation, effectiveness and implications of the control order regime. He recommended abolishing the system in its entirety. In doing so he reviewed the <a href="http://www.abc.net.au/news/2007-12-21/hicks-control-order-granted/994358">two control orders</a> that had at that time been issued, as well as every occasion on which the Australian Federal Police had considered applying for a control order. </p>
<p>Walker was particularly concerned about the possible use of control orders as an alternative in cases where there was insufficient evidence to mount a prosecution. </p>
<p>Since Walker’s report was tabled in May 2013, a further four control orders have been issued. The first two, issued in December 2014, are subject to <a href="https://www.comcourts.gov.au/file/Federal/P/SYG3493/2014/actions">non-publication orders</a>. Little is known about them. </p>
<p>In March 2015, a control order was issued against <a href="https://www.comcourts.gov.au/file/Federal/P/SYG562/2015/actions">Ahmad Nazimand</a>, a 20-year-old arrested and released without charge following the September 2014 Sydney raids. He is <a href="http://www.abc.net.au/7.30/content/2015/s4331837.htm">reportedly</a> connected to the recent <a href="http://www.smh.com.au/nsw/parramatta-shooting-gunman-a-15yearold-boy-police-sources-say-20151002-gk0flb.html">Parramatta shooting</a>, in which a 15-year-old boy shot dead a civilian police employee.</p>
<p>The final control order was issued against Harun Causevic in the situation Walker warned against. </p>
<h2>The Causevic case</h2>
<p>In August, criminal charges were <a href="http://www.theguardian.com/australia-news/2015/aug/25/dropping-of-harun-causevic-terrorism-charge-will-erode-confidence-in-police">dropped</a> against Causevic, an 18-year-old who had been arrested in April on suspicion of being part of the Anzac Day terrorist plot.</p>
<p>Despite the insufficient evidence with which to prosecute Causevic, the <a href="https://www.comcourts.gov.au/file/Federal/P/MLG2056/2015/3736029/event/28229675/document/629587">summary of grounds</a> on which the interim control order was made said that:</p>
<blockquote>
<p>Mr Causevic was involved in planning a terrorist act which was to occur on or around Anzac Day 2015 in Melbourne, but which was disrupted on 18 April 2015 by the arrest of Sevdet Besim … and the detention of Mr Causevic. </p>
</blockquote>
<p>The <a href="https://www.comcourts.gov.au/file/Federal/P/MLG2056/2015/3736029/event/28229675/document/629587">ten controls</a> imposed on Causevic will, according to the interim control order:</p>
<blockquote>
<p>… protect the public and substantially assist in preventing a terrorist act.</p>
</blockquote>
<p>This is likely to be true. Of the six control orders issued to date, <a href="http://www.smh.com.au/nsw/terror-suspect-denied-bail-will-challenge-control-order-in-first-case-of-its-kind-20150211-13ckyf.html">only one person</a> has been found to have breached their order. And no-one subject to a control order has been charged with terrorism-related offences.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/98572/original/image-20151015-30723-17r6giy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/98572/original/image-20151015-30723-17r6giy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/98572/original/image-20151015-30723-17r6giy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/98572/original/image-20151015-30723-17r6giy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/98572/original/image-20151015-30723-17r6giy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=511&fit=crop&dpr=1 754w, https://images.theconversation.com/files/98572/original/image-20151015-30723-17r6giy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=511&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/98572/original/image-20151015-30723-17r6giy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=511&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Harun Causevic had terrorism charges against him dropped earlier this year.</span>
<span class="attribution"><span class="source">AAP/Julian Smith</span></span>
</figcaption>
</figure>
<h2>Will it make Australia safer?</h2>
<p>It is less than clear whether lowering the age at which a person can be subject to a control order to 14 will substantially reduce the threat that Australia faces. A control order is only useful where the police have sufficient intelligence about a person’s activity to apply for an order. </p>
<p>NSW Police Commissioner Andrew Scipione <a href="http://www.smh.com.au/nsw/parramatta-shooting-gunman-identified-as-farhad-jabar-khalil-mohammad-20151003-gk0jze.html">confirmed</a> that they had no prior information that the Parramatta shooter, Farhad Khalil Mohammad Jabar, posed “this type of threat”. A control order therefore could not have prevented the attack – just as control orders did not prevent the London bombings. </p>
<p>Former NSW Supreme Court justice Anthony Whealy, who chaired the COAG review that recommended the retention of control orders with additional safeguards, <a href="http://www.abc.net.au/7.30/content/2015/s4331837.htm">said this week</a> that: </p>
<blockquote>
<p>Perhaps we should allow control orders against somebody who’s under 16, but, you know, control orders are not really the answer. They are simply a method of controlling or fettering someone’s activities.</p>
</blockquote>
<p>Lowering the age at which a control order can be imposed to 14 must involve significant public consultation and parliamentary deliberation. The reactive and truncated parliamentary processes that have characterised much of Australia’s recent anti-terror lawmaking should not extend to the next tranche. </p>
<p>Independent National Security Legislation Monitor Roger Gyles, QC, is conducting <a href="http://www.dpmc.gov.au/pmc/about-pmc/core-priorities/independent-national-security-legislation-monitor">an inquiry</a> into the adequacy of the safeguards relating to the control order regime. His recommendations should be considered before implementing further changes to the system, particularly those that restrict the liberty of children.</p><img src="https://counter.theconversation.com/content/49074/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A control order is only useful where the police have sufficient intelligence about a person’s activity to apply for an order.Jessie Blackbourn, Lecturer in Politics, Kingston UniversityTamara Tulich, Lecturer, Law School, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/440192015-06-30T02:50:39Z2015-06-30T02:50:39ZEven Khaled Sharrouf’s family has the right to come home<figure><img src="https://images.theconversation.com/files/86797/original/image-20150630-9090-fo1xa7.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Karen Nettleton, whose daughter and grandchildren are currently in Syria, has a made a public plea for her family to be allowed to return to Australia.</span> <span class="attribution"><span class="source">ABCTV</span></span></figcaption></figure><p>Regardless of their conduct or relationship to culpable persons, Australian citizens have the right to return to their country. The wife and children of Islamic State fighter Khaled Sharrouf, currently in Syria and subject to an <a href="http://www.abc.net.au/news/2015-06-29/grandmother-devastated-by-photo-of-grandson-holding-severed-head/6579354">emotional appeal</a> by the children’s grandmother, Karen Nettleton, appear to want to come home. </p>
<p>Immigration Minister Peter Dutton suggested that the help the government could provide was limited, and warned others from doing the same:</p>
<blockquote>
<p>It’s not a place that we have Australian troops, it’s not a place where we have diplomatic presence.</p>
</blockquote>
<p>But whatever we think of these people or their circumstances, they enjoy the right to return on the same footing as every other Australian citizen. This right was established in a <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1908/63.html">case</a> concerning a person also considered “undesirable” by most Australians at that time. </p>
<h2>Australian law and High Court decisions</h2>
<p>James Minahan, also known as Ying Coon, was born in Victoria of an Anglo-Australian mother and a Chinese father. His Australian nationality was acquired by birth. He was taken to China as a child and, as an adult, sought to return to Australia. Minahan spoke no English, and immigration officers attempted to prevent his entry. But, at the height of anti-Chinese sentiment in the Australian community, the High Court upheld his appeal in 1908 against expulsion, affirming his right:</p>
<blockquote>
<p>… to remain in or return to his place of birth.</p>
</blockquote>
<p>In later years, the High Court upheld the denial of re-entry to an Australian-born Chinese woman, it did so only after finding that she had lost her citizenship. Most recently, in 1988, the High Court <a href="https://jade.barnet.com.au/Jade.html#!a=outline&id=67466">struck down</a> a law that imposed an “immigration clearance” fee on all persons, including citizens, arriving in Australia by air. The unanimous decision confirmed that:</p>
<blockquote>
<p>… the right of the Australian citizen to enter the country is not qualified by any law imposing a need to obtain a licence or ‘clearance’ from the Executive.</p>
</blockquote>
<p>Entry also cannot depend on holding a passport. There is no unqualified right to a passport, but an Australian citizen cannot lawfully be denied entry, even without one. In the 1960s, the government adopted stalling techniques to prevent Australian journalist <a href="http://adb.anu.edu.au/biography/burchett-wilfred-graham-12265">Wilfred Burchett</a> from returning. Burchett, a communist, living overseas, was repeatedly denied a passport. </p>
<p>However, as cabinet minutes of the era reveal, the government was well aware, on advice from the attorney-general’s department, that Burchett could not lawfully be kept out. It deliberately chose to keep this from public knowledge, lest it attract criticism for a denial of rights. </p>
<p>Earlier this year, Aboriginal activist Callum Clayton-Dixon was <a href="http://www.brisbanetimes.com.au/queensland/aboriginal-passport-the-first-step-to-independence-says-activist-callum-claytondixon-20150425-1ms1xi.html">permitted</a> to re-enter Australia, although the Aboriginal “passport” he presented at Brisbane airport was not recognised as valid. Customs officials confirmed that a citizen’s identity can be established in other ways. </p>
<h2>International law and the government’s recent moves</h2>
<p>International law supports the citizen’s right to return. While no treaty or convention states categorically that citizens cannot be denied entry or residence in their country, Article 12 of the <a href="http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx">International Covenant on Civil and Political Rights</a> provides that:</p>
<blockquote>
<p>… no-one shall be arbitrarily deprived of the right to enter his own country.</p>
</blockquote>
<p>State practice and international customary law combine to endorse this rule. The Australian government is, no doubt, aware of this, as it is aware of the citizen’s right to come home. </p>
<p>It is no coincidence, then, that the <a href="http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5507">bill</a> to amend the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/aca2007254/">Australian Citizenship Act</a> presented to parliament last week includes deprivation of citizenship as an automatic penalty for certain forms of conduct committed overseas. This conduct includes giving assistance to terrorists, and may or may not apply to members of terrorists’ families. </p>
<p>But, so long as they are citizens, the families cannot be denied entry. One of central reasons for the proposal to strip citizenship must surely be to get around this. </p>
<p>In any case, the bill’s measures will not apply retrospectively and “mono-citizens” (sole nationals) will be exempted. These protections, it seems clear, were inserted in response to criticism of earlier government proposals that would have seen citizenship deprivation give rise to statelessness, in breach of Australia’s international law obligations. </p>
<p>Additionally, retrospective laws – although not prohibited by the Constitution – are contrary to the rule of law. While the bill remains open to constitutional challenge, the government’s respect for the principles of law deserves recognition.</p>
<p>The bill is currently being considered by the parliamentary Joint Standing Committee on Intelligence and Security. In the meantime, those members of the families in Syria who are citizens retain the right to return to Australia. </p>
<p>How they get back is a different question. Citizens have no enforceable right to consular assistance in foreign countries, although they have a reasonable expectation of it – and states have a moral obligation to help their own. </p>
<p>The government’s relative silence on the claims made on behalf of the Sharrouf family may reflect diplomatic and other initiatives behind the scenes, perhaps with the aim of assisting them to exercise their rights. When the government eventually acts, one trusts it will do so again with respect for the law – regardless of public pressure.</p><img src="https://counter.theconversation.com/content/44019/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Helen Irving does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Whatever we think of the family of foreign fighter Khaled Sharrouf or their circumstances, they enjoy the right to return on the same footing as every other Australian citizen.Helen Irving, Professor, Faculty of Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/430482015-06-23T00:35:36Z2015-06-23T00:35:36ZForeign fighters aren’t a new problem, so heed history’s lessons<figure><img src="https://images.theconversation.com/files/86018/original/image-20150622-17760-imjua5.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">If their deaths fighting for Islamic State in Iraq are confirmed, Khaled Sharrouf and Mohamed Elomar would be far from the first foreign fighters to be killed in the history of combat.</span> <span class="attribution"><span class="source">Facebook</span></span></figcaption></figure><p>A complicated war rages halfway round the world. Young men, keen for adventure and often without military experience, are browsing media when they find someone attempting to recruit fighters for the war. They sign up and their participation in someone else’s war has serious repercussions.</p>
<p>They themselves are placed in great danger. Some are executed. At home, a heated parliamentary debate begins on the dangers of young men becoming foreign fighters, and what to do about it.</p>
<p>So far, so familiar. Except the <a href="http://www.content.eisa.org.za/old-page/angola-first-civil-war-1975-1992">war was in Angola</a> in the early 1970s and the young men were mercenaries recruited through newspaper ads to fight for the National Liberation Front of Angola. In 1976, 13 British and American mercenaries were captured and <a href="http://en.wikipedia.org/wiki/Luanda_Trial">put on trial</a> for the crime of “mercenarism”. Two were executed.</p>
<p>The controversy played out in the newspapers and in parliament. Eventually, the UK government <a href="http://www.margaretthatcher.org/document/102956">called upon Lord Diplock</a> to consider the legislative means that existed or could be created to control mercenaries.</p>
<p>The case of the Angolan mercenaries has disappeared from the public memory, despite its obvious parallels to the current problem of foreign enlistment in the form of young people <a href="https://theconversation.com/au/topics/foreign-fighters">going to Syria</a> to join Islamic State (IS). Even better-known episodes of foreign volunteering in combat seem to have been forgotten. An estimated 30,000 people joined the <a href="http://www.britannica.com/topic/International-Brigades">International Brigades</a> during the <a href="http://www.britannica.com/event/Spanish-Civil-War">Spanish Civil War</a>.</p>
<p>Some 1500 Canadians even formed their own battalion. After the International Brigades disbanded, the Canadians struggled to return home. These men were <a href="http://en.wikipedia.org/wiki/International_Brigades#Canada">not allowed to serve</a> in the second world war because of suspicions about their politics. Returning American brigade fighters faced similar problems.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/84784/original/image-20150612-11427-fcb2lt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/84784/original/image-20150612-11427-fcb2lt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/84784/original/image-20150612-11427-fcb2lt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=419&fit=crop&dpr=1 600w, https://images.theconversation.com/files/84784/original/image-20150612-11427-fcb2lt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=419&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/84784/original/image-20150612-11427-fcb2lt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=419&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/84784/original/image-20150612-11427-fcb2lt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=526&fit=crop&dpr=1 754w, https://images.theconversation.com/files/84784/original/image-20150612-11427-fcb2lt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=526&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/84784/original/image-20150612-11427-fcb2lt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=526&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Tens of thousands of foreign fighters served with the International Brigades during the Spanish Civil War.</span>
<span class="attribution"><a class="source" href="http://media.iwm.org.uk/iwm/mediaLib//8/media-8068/large.jpg">Imperial War Museums</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span>
</figcaption>
</figure>
<p>The parallels between these past cases of foreigners fighting abroad and today’s problems are many and interesting. There is a long history of young people drawn to conflicts abroad, for passion or for money or for adventure. We have forgotten that foreign fighters are a normal part of war.</p>
<p>Before the 18th century, all European armies employed foreigners in large numbers in various capacities. Some officers were particularly sought after because they had extensive experience fighting in different wars for different employers. </p>
<p>It is equally important to remember that in many cases, such as the Spanish Civil War or soldiers enlisting in the British military before their own states joined the second world war, we occasionally even find the idea of fighting abroad admirable. Treating foreign fighters as a perversion of war denies historical reality.</p>
<h2>Problems of departure and return</h2>
<p>Two main problems have always been associated with foreign fighters: how to prevent them going, and what might happen when they return. History provides us with interesting ways of considering both problems.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/84786/original/image-20150612-11413-x9w52f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/84786/original/image-20150612-11413-x9w52f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/84786/original/image-20150612-11413-x9w52f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=713&fit=crop&dpr=1 600w, https://images.theconversation.com/files/84786/original/image-20150612-11413-x9w52f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=713&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/84786/original/image-20150612-11413-x9w52f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=713&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/84786/original/image-20150612-11413-x9w52f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=896&fit=crop&dpr=1 754w, https://images.theconversation.com/files/84786/original/image-20150612-11413-x9w52f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=896&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/84786/original/image-20150612-11413-x9w52f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=896&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">As opposition leader, Margaret Thatcher responded to the Diplock inquiry by noting that UK citizens had long fought for many causes overseas.</span>
<span class="attribution"><a class="source" href="http://en.wikipedia.org/wiki/Margaret_Thatcher#/media/File:Thatcher-loc.jpg">Wikimedia Commons/Library of Congress</a></span>
</figcaption>
</figure>
<p>The <a href="http://psm.du.edu/media/documents/national_regulations/countries/europe/united_kingdom/united_kingdom_diplock_report_1976.pdf">Diplock Report</a> in 1976 was concerned with preventing the departure of mercenaries in the first place. However, after lengthy analysis, Diplock concluded that the various measures that could be brought to bear against putative mercenaries were useless. In particular, the removal of passports was a “minor obstacle to departure”.</p>
<p>Foreign enlistment acts have also been largely unenforceable. Even despite greatly enhanced surveillance measures and the ability to check passports electronically, the same problem rears its head today. Countries can stop people they know will be interested in joining IS; they can’t stop the ones they don’t know about. Restricting or scrutinising travel to particular destinations is no solution, as would-be foreign fighters can simply take a circuitous route.</p>
<p>Another issue with controlling exit is that it contradicts the right of free movement. In the 1970s, Diplock determined that the potential threats caused by mercenaries were not so grave that they justified overturning this basic right. Today, governments around the world are much more concerned about the potential security challenge posed by returning foreign fighters and have been vastly more vocal about the need to restrict free movement.</p>
<h2>Security threats on two fronts</h2>
<p>Foreign fighters can pose a security threat in two ways. They can, by participation in a conflict, alter its course in such a way that it damages the interests of their home state. This is precisely the concern behind the creation of foreign enlistment acts in a number of states in the late 19th century. They can also return home with skills or political views that pose a domestic security risk.</p>
<p>The history of foreign fighters shows that it is much easier to control return rather than departure, which mitigates against the problem of domestic security risk. The Spanish Civil War veterans who faced difficulties enlisting in the Canadian military faced them even without the electronic organisation of information and internationally connected passport controls of today. </p>
<p>Unless foreign fighters are smuggled back into the country, they can simply be stopped from re-entering, especially given the propensity for foreign fighters from states like Australia to declare themselves publicly in online videos.</p>
<p>What kind of domestic security risk do foreign fighters pose? In the past, foreign fighters may well have come back home with political ideas or military skills unavailable to them in peaceful Canada or Australia. But today the political information and the military skills are accessible without ever having to leave home. </p>
<p>The Melbourne boy charged with plotting a terrorist <a href="http://www.theage.com.au/victoria/melbourne-teen-arrested-over-alleged-mothers-day-massacre-20150509-ggxuv0.html">attack on Mother’s Day</a> learned his craft from his own computer. Controlling the return of foreign fighters is unlikely to control the return of information that could pose a threat to the state.</p>
<p>Foreign fighters may well be complicating the war in Syria. They certainly add to the manpower available to IS.</p>
<p>Their presence is also a very useful propaganda tool, as it was for the International Brigades in the Spanish Civil War, because it demonstrates the attractiveness of IS ideology. Foreign fighters serve the additional function of drawing attention from around the world, as their home states focus on telegenic doctors or unexpected jihadis in the nightly news.</p>
<p>Given that history shows it is at best difficult and at worst impossible to prevent foreign fighters from joining a conflict, and given that foreign fighters are a normal part of war, what should states do? One answer may be that giving the problem such heightened attention simply gives it greater life. Endless debates in parliament, combined with draconian powers that will control only known foreign fighters, may simply be an even better recruitment tactic than placing an ad in the Sunday papers.</p>
<p>Finally, it is worth highlighting that in debates on foreign enlistment, going back as far as the <a href="http://en.wikipedia.org/wiki/Hague_Conventions_of_1899_and_1907#Hague_Convention_of_1907">Hague Conference of 1907</a>, concerns about violating the fundamental right to freedom of movement have outweighed fears about the problems that foreign fighters might cause. </p>
<p>We must consider whether or not today’s security situation, especially given the easy access to dangerous information on the internet, is really so different as to warrant the reversal of this position.</p><img src="https://counter.theconversation.com/content/43048/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sarah Percy does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Foreign fighters have always posed a dual challenge: how to stop them going and what to do if they return. History offers lessons on managing these problems, including that it’s hard to stop them leaving.Sarah Percy, Professor of International Relations, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/435402015-06-22T01:21:18Z2015-06-22T01:21:18ZCitizenship proposals must deal with how a ‘state’ is defined<figure><img src="https://images.theconversation.com/files/85792/original/image-20150620-3380-4c6aur.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australia has been reluctant to treat Islamic State as a sovereign entity under international law.</span> <span class="attribution"><span class="source">AAP/Dean Lewins</span></span></figcaption></figure><p>The government is this week expected to unveil legislation to <a href="https://theconversation.com/proposals-to-strip-citizenship-take-australia-a-step-further-than-most-42398">strip dual nationals</a> involved in terrorist activities overseas of their Australian citizenship. Even before their public release, the laws have been subject to a great deal of scrutiny and criticism over their potential scope and compliance with the rule of law.</p>
<p>Attorney-General George Brandis has addressed some of the multiple controversies. He <a href="http://www.abc.net.au/am/content/2015/s4252781.htm">argued</a> that the proposed changes were not particularly radical, but:</p>
<blockquote>
<p>… merely an extension of an existing power that’s existed in the Citizenship Act since 1948, whereby a person who fights in a foreign army against Australia’s interests can have their citizenship revoked.</p>
</blockquote>
<p>This was reaffirmed by Communications Minister Malcolm Turnbull. He <a href="http://www.malcolmturnbull.com.au/media/transcript-interview-with-fran-kelly-on-rn-breakfast">said</a> that:</p>
<blockquote>
<p>The law doesn’t require a conviction now for people that go and fight in an army of another country against Australia.</p>
</blockquote>
<p>The part of the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/aca2007254/">Australian Citizenship Act</a> to which both Brandis and Turnbull are referring is <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/aca2007254/s35.html">Section 35</a>. This states that:</p>
<blockquote>
<p>… a person ceases to be an Australian citizen if the person … serves in the armed forces of a country at war with Australia. </p>
</blockquote>
<p>This provision is not an outlier in the world of citizenship law. Both the United Kingdom and Canada have similar laws on the books. These laws were introduced following the second world war, in response to Australian (and Canadian and British) citizens who left home to fight with the Nazis against the Allies. </p>
<p>Cessation of citizenship under Section 35 is automatic – it happens the moment the person actually begins their service in the armed forces of the country at war with Australia. It is not necessary for the minister to take steps to revoke the citizenship in question.</p>
<h2>Issues under international law</h2>
<p>From an international law perspective, one big issue immediately presents itself – the notion that loss of citizenship is the result of service in the armed force “of a country” at war with Australia. The act doesn’t state whether “country” is meant to mean “sovereign nation”, but it seems likely that this would be the interpretation. </p>
<p>So, if the proposed citizenship revocation laws affect changes to Section 35, is Australia therefore saying that Islamic State (IS) is a sovereign nation?</p>
<p>According to the criteria for statehood under international law, IS would seem to fit the bill. The quintessential statement of statehood under international law is the <a href="http://www.cfr.org/sovereignty/montevideo-convention-rights-duties-states/p15897">1933 Montevideo Convention on the Rights and Duties of States</a>, which provides that:</p>
<blockquote>
<p>The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.</p>
</blockquote>
<p>IS seems to fit these criteria, if somewhat superficially. It controls territory in Syria and Iraq; it has a population within that territory; it has a government based in its “capital” Raqqa; and it seems to be independent of control by any other sovereign country.</p>
<h2>So what?</h2>
<p>It would seem that, as it currently stands, stripping Australian citizenship from those who fight for IS would amount to recognising IS as a sovereign state. </p>
<p>It seems inconceivable that the Australian government would be seriously considering treating IS as a sovereign entity under international law. Turnbull said:</p>
<blockquote>
<p>We don’t concede that ISIL is … a state. </p>
</blockquote>
<p>As such, the government would need to amend Section 35 – something flagged by Turnbull.</p>
<p>However, morally identical is not legally identical. The terminology in the section, as it currently exists, is clear. The government will have to tread carefully to ensure that, in its rush to deny overseas fighters their Australian citizenship, it doesn’t end up endorsing the very thing it wants to repudiate.</p><img src="https://counter.theconversation.com/content/43540/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Emily Crawford does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In its rush to deny overseas fighters their Australian citizenship, the government must ensure it doesn’t end up endorsing the very thing it wants to repudiate.Emily Crawford, Lecturer and Co-Director, Sydney Centre for International Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/423982015-05-29T00:03:06Z2015-05-29T00:03:06ZProposals to strip citizenship take Australia a step further than most<figure><img src="https://images.theconversation.com/files/83177/original/image-20150527-4828-1vjnfvo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Abbott government has announced a plan to strip dual nationals involved in terrorism of their Australian citizenship.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>One significant question raised by the Abbott government’s <a href="http://www.businessinsider.com.au/tony-abbott-plans-to-strip-citizenship-from-dual-nationals-engaged-in-terrorism-2015-5">proposal</a> to strip dual nationals involved in terrorism of their Australian citizenship is the immigration minister’s scope for discretion. This remains unclear, as no bill has been put before parliament. But the minister, Peter Dutton, <a href="http://www.minister.immi.gov.au/peterdutton/2015/Pages/citizenship-khaled-sharoufs-family.aspx">said</a>:</p>
<blockquote>
<p>If the minister of the day forms an opinion that that person has been involved in a terrorist act or supporting terrorism, financing, there’s a prescribed list that we have in terms of the offences that they will be captured by this. </p>
<p>If they’re an Australian citizen, if they’re a dual national and they’re not going to be rendered stateless, then this law applies equally to them.</p>
</blockquote>
<p>This suggests that, under the proposed changes, it will not be necessary for a person to have been convicted by a court of a terrorism offence in order to be vulnerable to citizenship revocation. A ministerial judgement that the person has been involved in terrorism will suffice. </p>
<p>The government has said that ministerial decisions to revoke citizenship will be subject to judicial review. However, the form of such review remains unknown at this stage.</p>
<p>Announcing the plans, Prime Minister Tony Abbott said:</p>
<blockquote>
<p>These new powers are a necessary and appropriate response to the terrorist threat. They modernise our laws and bring them closer to those of the UK, Canada, France, the United States and other countries.</p>
</blockquote>
<p>It is true that a number of countries – including Canada, France, the US and the UK – allow for the deprivation of citizenship on national security grounds in certain circumstances. But the scope of ministerial discretion in these countries varies significantly.</p>
<h2>Canada</h2>
<p>In Canada, recent <a href="http://voices-voix.ca/en/facts/profile/canadian-citizenship-bill-c-24">changes to the law</a> allow the ministerial revocation of the citizenship of dual citizens in three circumstances.</p>
<p>A person may have their citizenship revoked where they have been convicted by a Canadian court of any one of a range of prescribed national security offences. The minister may also revoke a person’s citizenship where they have been convicted by a foreign court of an offence committed overseas which, if it had been committed in Canada, would qualify as a “terrorism offence” under the <a href="http://laws-lois.justice.gc.ca/eng/acts/C-46/">Canadian Criminal Code</a>. </p>
<p>In both of these instances, the minister has discretion over whether to revoke the citizenship of a person who has engaged in terrorism. However, the minister has no discretion over the threshold question of whether the citizen concerned has engaged in terrorism. This is a question that must be determined by a court. </p>
<p>This is significantly narrower than the model that Dutton’s comments suggest will be introduced in Australia. Here, the minister themselves will have the discretion to determine whether a person has been involved in terrorism. </p>
<p>The third circumstance in which the minister may revoke the citizenship of a Canadian citizen is where they have reasonable grounds to believe that the person has:</p>
<blockquote>
<p>… served in the armed forces of a country, or as a member of an organised armed group, while that country or group was engaged in armed conflict with Canada. </p>
</blockquote>
<p>There is greater scope for ministerial discretion in this circumstance. Currently, in Australia, loss of citizenship is automatic where a citizen with dual citizenship serves in the armed forces of a country at war with Australia. The question of whether this should be extended to cover citizens fighting for non-state actors is a <a href="http://www.abc.net.au/news/2015-02-23/abbott-announces-anti-terror-measures/6217608">subject of current debate</a>, which may be addressed in the forthcoming legislation.</p>
<h2>France</h2>
<p>In France, Article 25 of the <a href="http://www.legifrance.gouv.fr/content/download/1950/13681/version/3/file/Code_22.pdf">Civil Code</a> allows for a naturalised dual citizen to lose their citizenship in three circumstances: </p>
<ul>
<li><p>where they are sentenced for an offence that constitutes an injury to the nation or an act of terrorism</p></li>
<li><p>where they are sentenced for evading duties under the Code of National Service </p></li>
<li><p>where they commit acts detrimental to the interests of France for the benefit of a foreign state. </p></li>
</ul>
<p>As in Canada, for a person to lose their citizenship on the grounds of having committed a terrorism or national security offence, conviction by a court is required. </p>
<p>Time restrictions also apply. The person must have committed the relevant offence prior to or within ten years of acquiring French citizenship. Any decision to revoke citizenship can only be made up to 15 years after the offence occurred. </p>
<h2>United States</h2>
<p>The regime governing citizenship loss in the US is complex. It is significantly narrower than the model that is likely to be introduced in Australia. </p>
<p>Citizens born in the US, but not naturalised citizens, are regarded as <a href="http://law.justia.com/constitution/us/article-1/35-naturalization-and-citizenship.html">constitutionally protected</a> against being deprived of their citizenship by the state, but may renounce it voluntarily. By contrast, Australia’s Constitution makes <a href="https://theconversation.com/what-does-being-australian-mean-under-the-constitution-38889">no mention</a> of a national citizenship. </p>
<p>Although the constitutional protection against citizenship deprivation does not extend to naturalised US citizens, the US law governing citizenship deprivation treats US-born and naturalised citizens substantially alike. The <a href="https://www.law.cornell.edu/uscode/text/8/1451">US Code</a> prescribes certain acts that can lead to a loss of US citizenship, but only if the citizen in question performs them with the intention of relinquishing US citizenship. </p>
<p>For some prescribed acts – such as engaging in treason, bearing arms against the US or conspiring to overthrow the government – conviction by a court is required before any loss of citizenship can eventuate.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/83243/original/image-20150528-31296-6p2qhz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/83243/original/image-20150528-31296-6p2qhz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/83243/original/image-20150528-31296-6p2qhz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/83243/original/image-20150528-31296-6p2qhz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/83243/original/image-20150528-31296-6p2qhz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/83243/original/image-20150528-31296-6p2qhz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/83243/original/image-20150528-31296-6p2qhz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Australia looks set to join a number of countries that deprive citizenship on national security grounds in certain circumstances.</span>
<span class="attribution"><span class="source">AAP/Dan Peled</span></span>
</figcaption>
</figure>
<h2>United Kingdom</h2>
<p>In contrast to Canada, France and the US, citizenship revocation laws in the UK allow for <a href="http://eudo-citizenship.eu/news/citizenship-news/1160-the-new-powers-of-deprivation-of-citizenship-in-the-uk">extremely broad ministerial discretion</a>. The Secretary of State may deprive a person of citizenship where they are satisfied that deprivation would be “conducive to the public good”. </p>
<p>UK law also <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/277578/Factsheet_15_Deprivation.pdf">allows for</a> the citizenship of sole UK citizens to be revoked, provided the Secretary of State is satisfied that the citizen concerned has:</p>
<blockquote>
<p>… conducted themselves in a manner which is seriously prejudicial to the vital interests of the United Kingdom. </p>
</blockquote>
<p>Before revoking the citizenship of a sole UK citizen, the Secretary of State must have reasonable grounds for believing that the person is able to obtain foreign citizenship.</p>
<p>The broad deprivation powers in the UK have attracted <a href="http://www.icct.nl/publications/icct-commentaries/uk-measures-rendering-terror-suspects-stateless-a-punishment-more-primitive-than-torture">substantial criticism</a>. Their operation raises significant concerns. For instance, while a person may lodge an appeal against a citizenship deprivation order, this does not prevent them from being <a href="http://www.legislation.gov.uk/ukpga/1981/61">deported from the UK</a>. This can make it very difficult to initiate appeal proceedings.</p>
<h2>The concerns for Australia</h2>
<p>If the proposed Australian revocation provisions apply only to dual citizens, they will be narrower in this sense than the UK laws.</p>
<p>However, Dutton’s comments suggest that the scope for ministerial discretion under the proposed laws will be more in line with the uniquely broad discretion applicable in the UK than with the narrower model that applies in other countries. In light of the criticisms of the UK model, this is cause for concern.</p><img src="https://counter.theconversation.com/content/42398/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sangeetha Pillai does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A number of countries – including Canada, France, the US and the UK – allow for the deprivation of citizenship on national security grounds. But the scope of ministerial discretion varies significantly.Sangeetha Pillai, Director, Federalism Project, Gilbert + Tobin Centre of Public Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.