January 16, 2018

Should they stay or should they go? What to do with detained Foreign Fighters

It is and will be one of the hottest topics in the field of security in 2018: Should foreign fighters – especially those who pledged allegiance to ISIS – be allowed to return to their home countries? Interestingly, although captured foreign fighters have been brought back home long before the so-called Islamic State collapsed in 2017, the debate became mainstream after the fall of Raqqa and white hot with the case of Emilie Koenig, a French foreign fighter currently detained by the Kurds.

Many of the captured fighters appealed directly to the heads of state and government of their home countries to be safely brought back home now that ISIS can and will no longer protect them. It is a very volatile debate, whose main aspects have conceptually focused on the politics, the legality, the morality and the security of the issue. But the practical elements, such as the detention capabilities of the Kurds, have barely been discussed. Should the latter not carry more weight in this debate than other factors?

I will offer here a brief overview of the debate’s key arguments and how in the end, its legal, moral or political aspects might not be the deciding factors in whether or not foreign fighters are brought back to their home countries.

The Politics

Returning foreign fighters are an issue where local, national and international politics can supersede each other at any time. Locally, a representative can campaign actively for or against the return of fighters because their constituency will be directly affected by it. Is the prison, halfway house or deradicalization centre where the fighters will be located in their district? Is the local concern more important than the government’s policy or party line? Many politicians have not hesitated to use the issue of terrorism or refugees to go rogue towards their parties and government to keep the support of their constituents. Any decision concerning foreign fighters could make or break an election, and local politicians will be very cautious to ensure that the negative fallout of any decision or policy will be very limited.

Nationally, governments are weary of looking soft on terrorism. Would financing the return of a person who turned its back on the country and then providing shelter and sustenance – even if it is in a jail – be perceived as minimising the crime? We have seen since 2015 just how the issue of refugees divided governments and countries and were eventually politically quite costly, as witnessed in Germany. Therefore, engaging on a path that could be politically even more damaging – without a precise, long-term plan – is simply not an option for most western governments. They will likely choose to both limit the exposure of the debate and favour a “rely on the local institutions” position.

Internationally, things get even trickier, due mostly to the Kurdish question. There is no doubt that the various Kurdish fighting groups in Syria and Iraq have been a huge part in the downfall of IS, and that they sacrificed much in this fight. However, it is also true that their success against IS is their biggest asset in their struggle for independence and that they will try to maximise the value of this asset to its fullest. This means they will use the prominence and resources they acquired over the last four years to put pressure on international actors to make concessions and obtain formal recognition as a legitimate, viable and valuable partner in the middle-east. All of which they hope would lead to independence or the closest thing to it.

Therein lies the conundrum of the Kurdish issue for western countries, especially in Syria: Refusing to deal with the Assad government while denying formal institutional recognition for Kurds – which would open another can of worms and fully antagonise Turkey – but nevertheless recognising them enough to 1) use the YPG and affiliated groups as proxies and partners in the fights against the Syrian government and IS; and 2) “trusting Kurdish institutions” enough to prevent foreign fighters from returning by having them tried and incarcerated there. In other words, trying to manage international politics by minimising involvement is a strategy that seldom works.

Hence, with so many competing short-term interests, combined with the lack of a cohesive and comprehensive foreign policy for the area, the political aspect of the returning foreign fighters problem is one of short-term political instrumentation for either a quick gain or to minimise a loss. Either way, it is unlikely to properly take into account the mid- and long-term factors returning foreign fighters raise or fully grasp the scope of the issue.

The Morality

Since this debate became public, many supported the position by some governments to refuse the return of foreign fighters. The main argument put forth by many is that foreign fighters effectively turned their backs on their countries, thereby forfeiting their rights and privileges that were previously granted to them. Essentially, it is the principle of responsibility and accepting the consequences of our choices. The problem with this view is that it is highly subjective and clashes much with the notion of “second chance” and benefit of the doubt that many western societies like to promote. After all, one is theoretically innocent until proven guilty, and until a trial formally proves intent and culpability, the door remains open for a different interpretation. As family organisations dedicated to the safe return of foreign fighters and deradicalisation and reinsertion programs argue, there is room for possible misguidance, regret and change, which makes the “owning up” argument concerning foreign fighters not as clear cut as it seems, even if we would like it to be.

In the mid- to late 2000s, I worked on a few projects that explored why some countries had the need for a “legal safe space” when it came to dealing with terrorists, while others didn’t. The U.S. and Great Britain needed Guantanamo, Diego Garcia and the use of extraordinary renditions programs to deal with terrorists, whereas France and Germany dealt with their problem within their own legal framework. This situation was made even more interesting by the case of Jose Padilla, an American citizen who was declared enemy combatant but spent less than 24 hours in Guantanamo before being transferred to a military facility. He eventually had his trial on U.S. soil and under U.S. law, with all the protections and restrictions that come with it.

A key difference, we found out, was cultural and linked to how a citizen is perceived. For countries with a larger focus on individual rights such as the USA, the UK or the Netherlands, terrorism created a situation where a citizen would still be entitled to all its rights, even if the crime of terrorism threatened the well-being of the “nation” or collective. Hence, the need for a special legal term, enemy combatant, and the need to have these prisoners outside of civilian jurisdiction. For countries like France or Germany, the rights of the collective are seen as more valuable than the rights of the individual, which essentially meant that once a person threatened the collective, the suspected terrorist “forfeited” the primacy of his rights for that of the collective, a position already inscribed within standard criminal law. In short, you were only recognised as part of the collective if you identified yourself to it and respected its rights.

With the issue of the returning foreign fighters, the above is the very debate we find ourselves in: Should someone who threatens the collective still be entitled to protection from the collective through the rule of law, or did that person forfeit that protection? The very volatility of the debate the last four months clearly shows there are no easy answers to this question, which means that managing returnees through the prism of morality may not be the best answer.

The Legality

Surprisingly, this is arguably the easiest and clearest aspect of the debate, at least on paper. This is due to the fact that many countries already have provisions in their counter-terrorism laws that deal with this aspect, most of which were enacted after 2001. A terrorist suspect may be tried and convicted in abstentia for their actions and will be arrested and detained once they return to the country.

But it does not provide the guidelines on what to do if such a person were to suddenly appear at the doors of a consulate or embassy from which it is a citizen. Neither does it provide the legal framework under which a prisoner transfer from a non-recognised entity to a formal institution should occur or extradition if need be.

So while the legal aspect of the returnee debate appears clear cut, the process of trial, detention and possible extradition by a non-recognised party could create legal loopholes and precedents that would blur the apparent legal clarity of the issue.

The Security

Much of the security debate surrounding returnees focuses on the possible threat they represent and therefore, the farther they are the better. This is taking the naive view that distance is somehow a form of protection. This could not be further from the truth.

In the opening portion of this text, I mentioned the importance of the reality on the ground. In Syria and Iraq the reality tells a much different story. The reality is that despite claims by Kurdish representatives, they simply do not possess the capacity to trial and detain all the foreign fighters they have in custody. Their prisons are overflowing with detainees; resources are seriously strained and ensuring sustenance to prisoners is becoming a luxury rather than a necessity; and they need huge amounts of money to rebuild, which means foreign prisoners are nothing less than a financial as well as a political asset, which they undoubtedly intend to capitalise on. Hence, the possibility that some or all of the detained foreign fighters are released out of need or negotiating tactic is very real under the motto “What’s in it for us? These are your citizens so deal with the problem yourselves”.

This raises the question that few have asked so far: Is it better to bring them back, deal with them and know where they are? Or should countries take the chance that the foreign fighters somehow are released and likely create problems elsewhere or find a way to return unnoticed? We know that the reality on the ground allowed IS fighters to escape detention in Raqqa and that similar situations occurred elsewhere in the region. I do not doubt the Kurds are looking for the best solution, which includes foreign fighters remain in custody but the reality on the ground, the instrumentation of the prisoners, as well as precedents of release through bribery or politicking in neighbouring areas tell me that leaving foreign fighters there is not the safest choice.

So what to do then?

Bring them back. Yes, it will be costly. Yes, there is a small risk that they could foster insecurity in their home countries. But at least we will know where they are, what they do, how they do it. The truly repentant will perhaps become key assets of dissuasion and provide insight into the thought process and emotional development that led them to identify themselves to a terrorist organisation and leave. Bringing them back is a controlled risk, even if the politics or morality of it are an issue.

Terrorism is as furtive a threat as it gets. Identifying terrorists or would-be terrorists is extremely difficult if not near-impossible. But in the case of the detained foreign fighters, they are already identified and located, which is a huge advantage. By potentially forfeiting the opportunity based on political or philosophical consideration – no matter how important both are to societies – we take the risk of losing some of that advantage and take the even greater risk of losing them for a second time.

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