Phil Gurski is a former senior strategic analyst at CSIS and the author of five books on terrorism.
In much of the debate over what to do with Jack Letts, the Canadian nicknamed “Jihadi Jack” by the tabloid press, who is now all ours thanks to Britain’s decision to revoke his citizenship, a lot of arguments for and against repatriation were made. One of the main positions for the former was the belief that we should bring back these terrorists and try them here in Canada.
This rationale was based on the belief that Canadian courts, and not foreign ones, should rule on Canadians who left to join terrorist groups, and that some of those foreign jurisdictions practise capital punishment or are incapable of ensuring a fair trial (implying that our systems were better than theirs, i.e. Iraq or Syria). Complicating the whole issue were the Kurds, who are holding many foreign terrorists and who have clearly indicated that they cannot process these cases due to a lack of infrastructure.
For the sake of this strictly legal argument, let’s leave aside the question of “moral obligation.” In that case, all things considered, repatriation seems possible, with a view to charging and trying these Canadians. For its part, the government rightly claims that it has no legal duty to repatriate any Canadian who has allegedly committed offences abroad.
It also further maintains that conditions are too dangerous in northern Iraq and Syria to send officials to effect removal – an argument that is a little disingenuous, since Canadian journalists and academics have made those same trips to interview incarcerated Islamic State terrorists in the past.
But is repatriation the best resolution? Perhaps not.
According to a recent Globe and Mail article, the RCMP is currently not sending investigators into Syria, where Canadians alleged to have joined the Islamic State are trapped in camps and prisons. While it is probable that some, if not all, of the potential returnees are under current investigation – the RCMP will of course neither confirm nor deny it is engaged in this regard – it is nonetheless also true that by limiting its evidence-gathering to Canada exclusively, the Mounties are not getting the full story.
It is one thing to interview witnesses, run human sources and get wiretaps here; it is quite another to talk to those who saw what the terrorists did in theatre. Charges based on the former are not out of the question, but a stronger case would undoubtedly be made based on the latter.
Why would the RCMP elect not to send officers to where the terrorist activity unfolded, other than the safety factor? There is also the discomfort of having to interact with local law enforcement and national security agencies that sometimes practise counterterrorism in ways that would be abhorrent to Canadians. After the U.S. deported innocent Canadian-Syrian citizen Maher Arar to Syria where he was tortured, and after the ensuing inquiry, does anyone think that any Canadian national-security body would talk to and receive evidence from such partners?
As a result, cases brought forward to trial will be weaker, and the odds of acquittal are higher. If a swath of acquittals ensue, there would be two likely outcomes. Firstly, Canadians would be livid at our inability to adequately process terrorists, allowing them to roam free. Secondly, future terrorists would receive the clear message that choosing to engage with such groups incurs no penalty.
What of the threat to Canada from these free terrorists? Studies have shown that a very small percentage of returnees go on to commit violent acts back home, but the threat is not zero. Both France and Belgium have learned this after recidivists were involved in the deadly attacks in Paris in November, 2015, and in the co-ordinated suicide-bombings in Brussels in March, 2016.
So there appears to be no good option. Doing nothing may be legally acceptable, but we have learned that courts look disparagingly on governments that do not act to rescue alleged Canadian terrorists abroad, resulting in lawsuits. Bringing them home may result in no convictions, a higher domestic threat level and a blatant illustration that we are terrible at prosecuting terrorism in Canada.
In this light, “leaving these alleged terrorists there” doesn’t seem like such a bad solution for Canadians.
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