Neutrality Law, Anti-terrorism and the Legal Response to Foreign Fighters

Workshop, Canadian Network for Research on Terrorism, Security & Society

Dec 3, 2014

Neutrality Law, Anti-terrorism & the Legal Reponse to Foreign Fighters from Craig Forcese on Vimeo.

 

Speaking Notes

Thank you for your invitation.  What I’d like to do is take 20 minutes is to “tee up” some thinking on law and policy approaches to what we generally call “foreign fighting” and “home grown” “radicalized” terrorist activity.

If this were a full academic paper, I would begin by defining these terms.  I shan’t, as I suspect everyone in this room will have a more or less shared understanding of what we’re speaking.  The one comment I’ll make on this point is that by “radicalized” here I am referring to jihadi radicalization.  Please assume that my invocation of jihadism here comes with all the usual caveats concerning how the religious concept of jihad has been misappropriated by a particularly pernicious and violent ideology. 

What I am going to use is a diagram.  It’s an effort to reduce everything we need to think about in this area into a series of overlapping circles.

 

Boolean Circles

So let me start with the three most important circles.  We have “foreign fighting”.  We have “radicalization”.  And we have “terrorist activity” – and here, I mean terrorist activity as defined in the Criminal Code.

First point: there is sometimes a conflation in the public mind between these three phenomena.  In at least some popular discourse, these three circles are not so much overlapping as identical.  Foreign fighting equates with radicalization (and vice versa) and it all necessarily boils over into terrorist activity, or at least terrorism offences. 

Not true, as an empirical matter.

Not all radicals are foreign fighters – if that were true our homegrown terrorism issues would be much simpler.  Not all foreign fighters are radicalized.  Recent reporting suggests a bevy of Canadian Armed Forces veterans are embarked on foreign fighting, but few would be radicalized in the sense we mean here. 

Finally, not every foreign fighter, not every radicalized individual and not even every radicalized foreign fighter is bound to commit a terrorist activity. 

Some do, but based on a dataset spanning 1990 to 2010, we’re talking about one in every nine foreign fighters returning to commit a domestic act of terror.  Of course, given the implosion of Syria and Iraq and the ISIS phenomenon, there is every reason to expect that these historical data understate future patterns.  And of course, some of these foreign fighters likely committed acts overseas that are cognizable as terrorist activity.

But the fact remains that these three categories of radicalization, foreign fighting and terrorist activity do not overlap in full.  And that complicates life.  If some but not all radicalized individuals or foreign fighters may commit a terrorist activity, preempting terrorist activity becomes more difficult.

My diagram presents this dilemma most starkly if you juxtapose Zones 1, 2, and 3 with Zones 4, 5, 6.  Zone 1, 2 and 3 represent the vast majority of foreign fighters or radicals who are not then involved in terrorism.  Zone 4, 5, and 6 represent those relatively few who do gravitate to terrorist activity, and especially domestic terrorist activity.

So how then to stop those in Zones 1, 2, and 3 from moving into zones 4, 5, and 6?

 

Passive Approach

Well, one approach is let nature take its course.  I’ll call this the passive approach.  Some foreign fighters die.  Some radicalized foreign fighters return disillusioned.  Some radicalized individuals don’t ever make a step into actual violence. 

But then again, some do.

So “let’s wait and see” is hardly the sort of situation many of us would be comfortable with, and no government could responsibly favour that strategy.

 

Purely Reactive Approach

Another approach is to wait until people actually stray into zones 4, 5, and 6 – that is, they commit a terrorist activity.  Depending on the nature of that activity, there are scores of crimes they could be convicted of.  And indeed they may be killed in the course of their conduct anyway.  I’ll call this the purely reactive approach.

But of course, all this necessarily requires us to accept the potentially significant injury caused by the actual terrorist activity.  Outside of the world of Tom Cruise’s Minority Report, we generally accept that actual injury precedes crime.  But for reasons I think we can debate, we don’t with terrorism.

And so again, I doubt that this is the sort of approach that resonates with policy makers, especially after events this past October.

 

Criminal Preemption Approach

So, the reality is that we are talking about some sort of preemptive approach – that is, stopping conduct before it reaches the point of actual terrorist activity.  And here is where reasonable minds begin to quibble.

We’ll start with the basics, harkening back to my diagram.  In zones 7, 8 and 9, we have what I’ll call “criminal preemption”.  These are all the terrorism offences that are built around the concept of terrorist activity.  These are basically about conduct that has not yet reached the usually kinetic acts of violence associated with terrorist activity.  Facilitation. Participation. Instruction. The new and somewhat duplicative rules on terrorist travel that amplify the terrorism offences introduced in 2001.  Also the general incitement rules in the Criminal Code, aiding and abetting, counseling an offence, conspiracy etc. 

All of these offences have one thing in common: Parliament has concluded that this conduct is sufficiently proximate to terrorist activity that it attracts criminal sanction.

Thirteen years ago, this was a contentious view.  It has become now part of the Canadian legal landscape, and the RCMP and Crown prosecutors have had good success in obtaining criminal convictions under these provisions, and defending them from constitutional challenge.  Where they have failed – as in the recent Sher case – it is because they used these broad sweeping offences in circumstances where the connection to terrorist activity was too far removed.  One off-colour conversation does not a terrorist conviction make.

The issue du jour after the Ottawa attacks is whether the criminal preemption circle is big enough.  Should it reach even further into zones 1, 2, and 3?  I think we need to be very, very careful in making an already vast circle even bigger.  For instance, for a long list of policy, operational and legal reasons I have been exploring in an article on which I am working, I would strongly oppose a new terrorism “glorification” offence, or some equally counterproductive effort to quash internet speech.  But in the area of foreign fighters, I think we should move.  I’ll return to this in a moment.

 

Administrative preemption

Criminal preemption is not perfect. 

Substantively, there are limits to the crimes. 

Procedurally, they need to be proved in open court, with real evidence, beyond a reasonable doubt. 

So for theses reasons – and others – criminal tools may not be used. 

Instead, the government may resort to a buffet of other mechanisms represented by the circle marked “administrative tools” and creating zones 10, 11 and 12.  What are these? 

Passport revocation, no fly lists (aka passenger protect), citizenship revocation (when it comes into force), recognizance with conditions (better known as peace bonds).  (I’m happy to call that an admin tool, although it is contained in the criminal code). 

Security certificates would also be on this list, although I suspect use of these measures will not now be enthusiastically embraced by the government as an anti-terrorism tool.  Regular immigration admissibility proceedings are also on the table. 

These tools are a mixed bag.  They each have pros and cons.  We can discuss those in more detail later, but a few highlights:

Passport revocation seems the most popular tool at present to deal with those who seem about to embark on foreign fighting, at least of the radicalized sort.  But it impedes travel without fully stopping it, and doesn’t resolve local threats. 

Citizenship revocation will be more trouble than it is worth, both because it applies to the narrowest tranche of potential targets and because its constitutionality is doubtful.  It is, in my view, nothing more than anti-terrorism political theatre.

No fly is supposed be about aviation security, and not about radicalization or foreign fighting.  Use it for these things alone, and you act illegally.

Peace bonds are mostly unexplored, and probably should be explored more.  But they still require an open court proceeding in front of a judge, which raises the perennial concern about the intelligence/evidence divide. 

So nothing is perfect, but collectively these measures amount to a fairly impressive arsenal. 

 

Investigative preemption

My last tool circle is investigative tools.  And here I am really contemplating what I’ll call  “investigative preemption”.  This seems a contradiction in terms: an investigation is supposed to lead to something, like a prosecution, not itself preempt.  But of course, the real world is more complicated.

The most graphic use of investigative preemption would be an investigative hearing under the Criminal Code’s anti-terrorism rules.  It’s never actually been used to date, probably for good reasons we can discuss.  But whatever purpose it serves as an actual investigative tool, it also is a tool of disruption.  It could shake up a plot, place a stick in the spoke of a conspiracy and generally foul the gears of even a lone wolf, at least in theory.

Other investigative techniques include overt surveillance, covert wiretaps that reveal other, more easily prosecutable crimes, and even traffic stops.  All these can poke the bear and provoke conduct that police can then act on – some of you will have seen the story on Luqman Abdunnur in last week’s Ottawa Citizen. 

Investigative preemption of this sort has obvious merits.  But it is also potentially the most lawless form of counterterrorism.  Using police or security intelligence powers, not to pursue criminal prosecutions or collect intelligence, but instead to provoke and disrupt people who, to that point, were acting lawfully, is a dangerous practice. 

It is the kind of thing that when it goes wrong, sparks judicial commissions of inquiry. 

Investigative preemption is an area calling out for careful policy guidance, possible legislative action and lots and lots of review by review bodies much more robust than those we have at present.

 

Next steps:

So where to now?  Well, there are several things I could mention (and will in different versions of this talk over the next few weeks), but as this is a talk on foreign fighters, I want to focus on that issue, and specifically the question of whether law should shrink zone 1, by making more foreign fighting illegal.

My view on this is “yes, we should”. There may be instances where Canadian interests are furthered by the removal of despotic regimes by rebel forces.  There may also be other instances where the participation by Canadians in such acts is contrary to Canadian interests.  These are matter of executive judgment.  Canada’s antiquated neutrality law – called the Foreign Enlistment Act -- does not allow that judgment to be exercised in any meaningful way. 

The propriety of overseas armed violence by Canadians is instead left to be litigated in court, with reference to laws designed for a very different purpose, namely anti-terrorism.

So Canadian authorities must squeeze a broad concern with foreign fighters through the grinder of anti-terrorism law.  The terrorism concern may undergird many of the fears associated with foreign fighting.  It is, however, manifestly ill-suited as a comprehensive foreign fighter tool, for at least four reasons. 

First, as noted, any criminal offence requires the government to prove guilt beyond a reasonable doubt. 

Second, this prospect is particularly difficult when at issue is “terrorist activity” that includes many, potentially difficult to prove elements, undertaken in many instances extraterritorially and possibly in a war zone. 

Third, the “armed conflict” exception in the Criminal Code definition of terrorist activity may seriously limit the relevance of terrorism offences in at least some foreign fighter situations. 

And four, terrorism offences do not penalize foreign fighting per se, as my diagram has tried to show.  As noted, it is surprising to me that this is so.  I note that in Australia, the independent reviewer of terrorism laws has reported a view in the Australian security services that any foreign fighting in a place like Syria is problematic – in the complicated brew of the place, it is not clear which armed group will pose tomorrow’s security dilemma, and skills and aptitudes gained with even favoured insurgencies can be deployed later for nasty purposes.

Australia has moved on this issue, initially in its own neutrality law, and now in provisions codified (and amplified) in its criminal law. 

It is a crime attracting a sentence of up to life imprisonment for an Australian citizen or resident to “enter a foreign State with intent to engage in a hostile activity in that foreign State” [or to engage in these activities].

“Hostile activity” captures a broad and intuitive range of violent actions.

The government can make exemptions, allowing Australian participation in some foreign conflicts. 

And the government also has the power, subject to exceptions, to designate certain places as no-go areas because of terrorist operations in that region. 

Because of this law, in Australia, the government is able to say to those considering fighting in Syria “don’t do it, it’s against the law and if you choose to illegally participate in a foreign conflict then you’re not only putting yourself in danger, but also breaking the law.”

Canadian officials can’t make this statement, at least not without a series of provisos and caveats.

Revamped neutrality law of this sort is no silver bullet, of course.  Offences still need to be proved. 

On the other hand, an Australian-style “hostile activities” offence would have fewer elements and a greater breadth than do Canadian terrorism offences, easing prosecutorial burdens. 

New criminal offences tied to “hostile activities” in foreign armed conflicts, and not just terrorist activity, would authorize new forms of police investigation, and potentially permit earlier interventions.  And the government could, as Australia has done, retain the power to waive application of the law to favoured armed forces or insurgencies.

To date, however, we remain inactive.  And so we are legally indifferent to Canadian participation in foreign wars, unless they fit the narrow window demonstrated as zones 4-9 on my chart.

Yet, if there is one area that is clearly the responsibility of the executive branch, it is the management of foreign affairs – citizen freelancers, whether proto-terrorists or not, run roughshod over that principle. 

It is, therefore, close to astonishing that Canada has not acted to regulate foreign fighting. Well past time to change that.  

So let me end there.