Put British Jihadis on Trial in British Courts

We owe it to the world to prosecute home-grown war criminals of Islamic State here — not to deny them entry and their victims justice

Geoffrey Robertson

Until the barbaric murder of David Haines, the government’s main response over the summer to the prospect of terrorists returning home-raising the threat level in August from “substantial” to “severe” — seems to have been merely playing with words. Nothing much else was done, other than demanding more details of airline passengers and debating with the Lib Dems over whether returning Islamic State fighters should suffer “stronger locational constraints”. For those (and I am one) who consider that the only “locational restraint” an ex-IS fighter should suffer is within a secure prison cell, this seems a woefully inadequate response to the return of “Jihadi John” and the prospect of more Lee Rigbys. However, Mr Cameron’s caution is correct: most ideas from the “something must be done” brigade, calling for new laws to “control” these miscreants, are unnecessary. Their demand to stop our own citizens from returning home is legally and morally questionable: on the contrary, what we need is a full-blooded commitment to prosecute all returning IS fighters who are British citizens. This is our duty and we need no new laws to do it.

The proposals over the summer for new laws to deal with returning jihadis have included:

Reversing the burden of proof
   Both Boris Johnson and the Metropolitan Police Commissioner, Sir Bernard Hogan-Howe, want to cut “the golden thread of the criminal law” so that terrorist suspects are treated as guilty until proven innocent. Terrorism could have no greater triumph.

A terrorist Asbo

   No beheadings, presumably, after the 10pm curfew. This is a restraint for unruly youths, not for murderous fanatics.

Broader powers for the Home Secretary to deprive suspects of British citizenship
   But making your own citizens stateless is contrary to international law and to Conventions we ratified, for good reason, in 1954 and 1957. The UK has always refused to accept the right of other states to remove citizenship from their nationals resident here, and so force the UK to take responsibility for their safety and wellbeing, and we must hold ourselves to the same standard. The UK punches above its weight precisely because of its adherence, more than other powerful states, to international law and conventions. Besides which, there has for 800 years been a promise in Magna Carta (original clause 42) that all citizens have a right to return “except in the common interest of the realm for a brief period during wartime”.

Bring back Control Orders
   They were abandoned for very good reason — they were ineffective, massively expensive (16 police and intelligence officers required for each order) and subject to constant judicial intervention. The only way to control an IS fighter is to confine him in prison until his case can be tried — and if he is found guilty, to confine him in prison as long as the law allows.

A new crime of going abroad to fight for terrorists
   We have an old one — the Foreign Enlistment Act of 1870, and it has never worked. It did not deter George Orwell from fighting in Spain, or ex-SAS mercenaries from training Pablo Escobar’s fighters in Colombia. Will it catch Jews who move to Israel to enlist in the army and fight in Gaza?
Establish a government-approved version of Islam
   This extraordinary proposal was made across party lines by the MPs Hazel Blears and Dr Julian Lewis, who insist that “the government must sponsor a particular interpretation of Islam” (The Times, August 27). While Theresa May is capable of many things, rewriting the Koran “to develop a tolerant vision of Islam” (perhaps with Prince Charles as “defender of the faith”) might be a task too far.

Resuscitate the Treason Act, 1361
   David Davis MP, of all people, has called for jihadists to be prosecuted as traitors. The Treason Act was last promoted by Lord Hailsham, in his dotage, for IRA suspects, replete with the death penalty (well, it would have silenced the Birmingham Six and the Guildford Four). Hanging for treason was only abolished in 1999 (because treason includes “adultery with the King’s son and heir” and there was concern that James Hewitt’s guilt would render Diana, as his accomplice, a notional candidate for the gallows).

This obsolete 1361 law now provides life imprisonment for men who “levy war against our Lord the King in his realm, or give the King’s enemies comfort elsewhere”. It only remains on the statute books because of the laziness of law reform and our nostalgia for history. It is precisely that nostalgia which should deter us from treating vicious IS killers on a par with Sir Roger Casement, Anne Boleyn and Sir Walter Raleigh. Besides, the archaic language is now open to endless legal arguments — William Joyce (“Lord Haw-Haw”) was scandalously hanged in 1946 before the Law Lords delivered their reasons, when it turned out that one judge (who was undoubtedly correct) had changed his mind and decided that Joyce was innocent because he had been born in America. Now, as the 1361 Act must be interpreted in conformity with the 1998 Human Rights Act, any treason conviction would be subject to endless legal arguments, to Strasbourg and beyond.

Bring back the death penalty
   Remarkably, a call not heard over the summer, other than from talk radio and the wilder shores of UKIP. Those most enthusiastic for the return of the gallows dare not say so: they are, of course, the fighters of IS, who would relish this guaranteed pathway to paradise. They would all be likely to return from the killing fields of Syria and Iraq to die at the hands of an infidel hangman: this, they believe, is the most glorious way to go.

Before Parliament considers any of these well-intentioned but impractical ideas for new offences and new ways of internment without trial, it would be sensible to ask exactly what crimes against British law IS fighters have committed, and how they can be appropriately charged, tried and punished.

IS is not a state (even if it fantasises that it has become a caliphate). It comprises a growing group of international criminals bent on killing Christians, Shia Muslims and members of other religions, torturing civilians, and executing opponents (and hostages) without trial. IS fighters are, so to speak, the pirates of the desert — hostis humanis generis, the enemies of all humankind. They appear to be guilty of an array of international crimes — war crimes, crimes against humanity and (arguably) even genocide.

But these are not merely international crimes, triable at the International Criminal Court (ICC). In 2001, under the International Criminal Court Act, they were made crimes in the UK as well, carrying a maximum sentence of 30 years. Any UK citizen or resident assisting IS in any capacity would be guilty — the law covers accomplices of all kinds who give assistance to groups committing crimes against humanity. The doctor, the paramedic, the IT operator, the website propagandist are all liable to conviction as ancillary offenders, if they have joined an enterprise that they know to involve the commission of international crimes.

And let us not forget the good old national crime of murder, to which IS soldiers have been confessing on their bloodstained Facebook pages. Parliament gave British courts the power to try UK citizens for murdering foreigners in foreign countries way back in 1861.

So the way to deal with returning jihadists under existing law is very clear. Anyone who has served IS in any capacity should be arrested and charged with participating in a crime against humanity (or murder, if there is evidence of involvement in killing a civilian or a hostage). Normally, bail until trial will be refused because of the heinousness of such offences, so there will be no need for Asbos or Control Orders. Then there will be a trial, probably at the top security court at Belmarsh, with the prosecution bearing the burden of proving guilt beyond reasonable doubt — the standard that should apply at every criminal trial in this country. Upon conviction, a prison sentence would in practice be long enough to keep the ex-IS fighter off the streets for many years — long enough perhaps, to deter most jihadis from returning home. Some would continue to live and die in their desert of choice whilst those who did return here would be denied martyrdom and locked up for life.

This procedure is readily available — it involves using present laws, without need for parliamentary additions to the already extensive arsenal of anti-terrorist powers. There is even a special war crimes/crimes against humanity division in the Crown Prosecution Service (CPS) Counter-Terrorism Division, and a “war crimes team”, known as SO15 at the Metropolitan Police Counter-Terrorism Command.

At present, these divisions with long names have few staff and not much success. The CPS has a website devoted to “successfully concluded war crimes prosecutions since 2001” but it has only one entry, the case of an Afghani warlord, torturer and hostage taker. He was in residence in the UK, easily arrested and convicted as long ago as 2005. The Home Office admitted recently that it had managed to charge only 12 of the 69 jihadis caught on their return to Britain this year, and it is unclear whether any of these charges relate to international crimes.

So the real problem is of police and CPS resources and resolve. It must be addressed, but not by changing the law. The reality is that local law enforcement officers have little experience of prosecuting war crimes, seen as somewhat exotic and calling for investigatory skills that police do not possess and resources that the CPS on its present budget cannot afford. They are not geared up for the task of proving international crimes — beyond reasonable doubt, and not simply by reference to propaganda websites and Facebook pages which can easily be fabricated.
The lesson from the prosecution of crimes against humanity at the International Criminal Court and other tribunals — for Sierra Leone, Rwanda and former Yugoslavia — is that the prosecution must have a multi-skilled team in place as soon as possible, gathering intelligence on the history of the warzone and the system and pattern of atrocities as well as seeking to identify individual jihadists. This must be fully resourced and well under way, so that returning jihadists can be arrested and charged with committing war crimes, then denied bail but brought promptly to trial.

The answer might be to appoint a Special Prosecutor — an American invention, but none the worse for that — who would work with police and intelligence services and have sufficient expert staff and funding to be in a position to bring returning IS fighters to trial and to obtain their conviction on evidence that proves guilt beyond reasonable doubt. Unless a major initiative is taken by the newly appointed (and largely unknown) law officers, prosecutions will waste a lot of time and money, and, worst of all, may not succeed.

A cheaper alternative might be to hand them over for prosecution to the ICC itself. But this would be complicated — neither Iraq nor Syria has ratified the ICC treaty, and the Security Council has declined to refer the situation in either country to the ICC prosecutor. Although technically the UK, as a signatory to the treaty, could send its citizens for trial at The Hague, this is a “court of last resort” where defendants could argue that the trial would be an abuse of process because there is no impediment to trial in their own country. That argument would be correct — and could lead to their release after several years of arid hearings. On the other hand, war crimes trials in the UK might have a useful deterrent effect on young men minded to join a foreign jihad, especially on their young friends and families who might be more likely to tip off police about their projected departure. ICC proceedings are, moreover, intolerably cumbersome and lengthy and partly in French: the sooner these people are severely punished in Britain for participating in a crime against humanity, the better.

There does seem to be a reluctance to accept that the UK has an international duty to punish its own citizens if they commit crimes against humanity — we cannot simply wash our hands of them and wish them on some other state or a court in The Hague. The Prime Minister’s initial response — to stop them returning — was a mistake. So was his reason, namely that their allegiance was to another country. Their make-believe caliphate is not a state and hopefully never will be. The UK has a duty to the international community to look after its own citizens, and a duty under international law to secure their prosecution if they commit crimes against humanity.

The soft-hearted suggestion recently made by former Metropolitan Police Deputy Assistant Commissioner Peter Clarke, that jihadis should be pardoned if they return to Britain and recant, is inappropriate, given the seriousness of their crime. Of course, as in all criminal proceedings, there would be scope for plea bargains in return for confessions and Queen’s evidence, and release might come earlier if they were prepared genuinely to assist de-radicalisation schemes like the excellent “Channel” programme, which makes use of imams, psychologists and social workers — and why not repentant but imprisoned jihadis? But it is difficult to see how they could be offered any sort of amnesty: these crimes are unforgivable. They may be “political”, in the sense that they are fighting to create an idealised international entity, but that cannot excuse the killing of civilians and children because they belong to different races and religions. No doubt their youth might be taken into account, or the cunning of their recruiters or the fact that they may have volunteered out of boredom (this is the latest theory, deduced from the fact that most European jihadis come from Belgium). But this is slight mitigation for travel taken with malice aforethought — IS recruiting websites make no bones about the executions they will be called upon to conduct.

This does not necessarily mean that the government can leave everything to beefed-up enforcement of existing laws. The police do have ample powers to investigate any incitements or encouragement to go out to Syria to fight for IS, although the recent suggestion by the Metropolitan Police that it would be a crime merely to look at or download execution pictures from IS websites was (fortunately for free speech) wide of the mark. The Home Secretary, under the Royal Prerogative, already has the power to cancel passports of dual nationals and naturalised Britons, so it is not a stretch to allow her to suspend (or refuse to issue) passports for British citizens, subject to their right to judicially review her decision and subject to Magna Carta’s reminder that use of such a power should only be temporary, while the war lasts.
The most difficult problem faced by the authorities is to obtain information about potential jihadis, who can find their way to Raqqa in Syria, IS’s headquarters, after flying, seemingly innocuously as tourists, to Germany or Turkey. Police need to elicit information from friends and relatives, which is not often forthcoming. A “misprision of terrorist felony” law, requiring notification to police by any who have reasonable cause to believe that a person is planning to go abroad to fight for a proscribed terrorist group might provide some incentive, especially to family members who fear that they will never see their jihadist-minded relatives again, other than behind bars.

Law cannot change minds already made up by religious brainwashing or tempted by the promise of an eternal paradise. It does, however, set standards of what is right and just, and in the case of crimes against humanity it identifies and stigmatises the conduct up with which a civilised society can never put. The crime, after all, is “against humanity” because the very fact that a human being can conceive and commit it demeans us all, as members of the same human race. We owe it to the world to prosecute all of “our” IS fighters that we can get our hands onto turn them in, rather than turn them away.

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