The announcement of fresh counter-terrorism powers in the UK follows assertions that returning foreign fighters present a substantial new threat to national security. But these powers may be counter-productive in the long term, risking a legacy of injustice that will only exacerbate the political tensions of the War on Terror.

The Counter-terrorism and Security Bill announced in the UK in November includes new powers aiming to limit the flow of people travelling to train and fight with certain rebel groups in Syria and Iraq. The proposals, due to be rushed onto the statute book in January, include the extension of controversial powers to disrupt travel and strip citizenship from terrorism suspects. Life sentences for a greater range of terror offences, including training, are also proposed. The British bill follows a US-drafted UN Security Council resolution to criminalise al-Qaida or Islamic State (IS)-linked foreign fighters which was adopted in November. Similar measures are being debated in other European countries and Australia.

The reason for this wave of legislation? On the back of reports of unprecedented numbers of foreigners travelling to fight in the Syrian conflict, there has been a near-universal consensus amongst the security and intelligence community that returnees present a heightened national security threat. Returning foreign fighters, it is feared, will be networked, skilled up, and angry. The threat of political violence is ‘inevitable’, according to senior EU counter terrorism officials.

Despite these fears, there is little in the way of a historical precedent in the UK to indicate that returning foreign fighters do represent an increased national security threat. The lack of evidence to support these claims is one of several legal and practical difficulties. Existing laws are already being used to criminalise foreign fighters in Syria’s conflict. The overwhelming application of such laws to Muslim communities has raised concerns that the legal principle of parity before the law is at risk. There is also a lack of accountability and oversight of these cases due to the use of secret evidence.

The long term efficacy of such measures is therefore questionable. They may be a distraction from the underlying dynamics driving political violence, which are known to relate primarily to grievances over foreign policy. The abandonment of the principles of justice and equity before the law are likely to exacerbate resentment and the perception that the West is ‘at war with Islam’. The UK’s counter-terrorism policies may be creating a legacy of injustice that risks exacerbating the underlying political antagonisms of the War on Terror.

Threat level: Severe?

In response to the risk posed by returning foreign fighters, the UK’s terrorism threat level was again raised to ‘severe’ in late August. Although exact figures are not known, the number of those who have travelled from the UK to fight in the Syrian conflict is estimated to be at least 500 since 2011. The extent to which the Syrian conflict has mobilised fighters from Europe is clearly significant: key to this is the ability of groups such as IS to attract recruits via its propaganda films and social media activities conducted in European languages.

But not all those who have gone to fight are with IS. The reality of the Syrian conflict is that there are over 2,000 fighting groups in Syria, including some with affiliation to al-Qaida. Little is known about group affiliations of the UK’s foreign fighters. Even individuals that are fighting with proscribed organisations, such as Islamic State or Jabhat al-Nusra, will have varying personal affiliations. Primary source reports collected by journalists and advocacy groups indicate that the primary motivation for those going to fight is a moral duty to fight the Assad regime (See for example, ‘Blowback: Foreign Fighters and the Threat they Pose’, CAGE, July 2014; ‘Joining ISIS: My Meeting with Aseel Muthana’, Huffington Post, 25 June 2014; ‘From Portsmouth to Kobane: the British jihadis fighting for Isis’, New Statesman, 6 November 2014). The reports suggest that, partly due to practical reasons, certain larger groups with more resources such as IS have absorbed the most foreigners. One of these reasons is that some other groups’ vetting procedures present a barrier to foreigners wanting to join.

There are also legitimate questions over the wisdom of excluding foreign fighters from their countries of residence. Following reports that disillusioned fighters have been caught ‘in limbo’ in Turkey, wanting to leave but afraid to come home, some have called for alternatives, such as pastoral re-integration programmes existing separately from criminal investigation proceedings. A programme in Denmark provides an example of how such a scheme could function.

Context: Terrorism laws in the UK

The latest developments have occurred in the context of an increasingly securitised response of the UK to Islamist movements globally. Since 2001, the UK has progressively increased its set of counter-terrorism powers with a succession of laws, most of which have been fast-tracked and introduced as emergency legislation only to be made permanent. The UK’s multi-pronged CONTEST strategy conceives of the battle against terrorism on four fronts: Pursue, Prevent, Protect, and Prepare. The Prime Minister has promised to increase resources to these programmes. Yet intelligence resources dedicated to countering al-Qaida-linked terrorism already dwarf those that were dedicated to countering the threat posed by the Soviet Union and its allies even at the height of the Cold War, as observed by Sir Richard Dearlove, former head of the British Secret Intelligence Services at a Royal United Services Institute talk earlier this year.

There is nothing in the UK’s legal definitions of ‘terrorism’ that specifies Islamist activity. ‘Terrorism’ was defined in a Supreme Court judgment last year to include “any or all military attacks by a non-state armed group against any or all state or inter-governmental organisation armed forces in the context of a non-international armed conflict”. But the shadow of the 9/11 attack continues to shape the security services’ understanding of national security threats, and to shape the application of these laws, primarily to Muslims. The focus on ideology that can be linked to al-Qaida, and the search for evidence of ‘jihadist worldviews’ conflates the criminal and the non-criminal, the threatening and the non-threatening. It leads to a skewed application of laws to those whose ideas or religious beliefs can be superficially associated with those of the UK’s enemies. By comparison, the resources dedicated to tackling political violence by the far-right are minimal, and similar types of crimes attract lesser sentences. One recent example is a former British soldier who was a supporter of the English Defence League (EDL), handed a two-year sentence after nail bombs were discovered in his house. Despite the UK’s legal definition of “terrorism” that is consistently criticised for being overly broad, the soldier controversially avoided charges under terror legislation, instead he was found guilty of offences under the Explosive Substances Act.

The Syrian conflict has prompted security services to make increasing use of counter-terrorism powers against UK residents suspected of travelling there, or planning to travel there. A series of high-profile arrests have occurred in the last years, most of which have not made their way through the judicial process. But several recent cases raise further questions over whether these powers are being applied fairly.

There has been an inconsistent response to those understood to have fought against IS. The estimated dozens of British residents fighting with the Kurdish forces, it has been indicated, will not meet charges upon their return. The Prime Minister stated there was a “clear difference” between fighters with the Kurdish authorities and IS fighters; and stated that “highly trained border staff, police and intelligence services” would be able to distinguish between them. But one man from Derry, who explained he was also fighting against IS, but with the largest Islamic coalition was still arrested by Northern Ireland police upon his return.

Long prison sentences for crimes under terror legislation are being handed out to returning foreign fighters. Last week, two Birmingham men, Mohammed Ahmed and Yusuf Sarwar, were convicted of engaging in preparation of terrorism acts and sentenced to 12 years in prison; they had spent several weeks in Syria in 2013. The pair were arrested upon their return to the UK in January 2014 after Sarwar’s mother reported him missing to the police. The judge concluded that the pair had not planned any attack in the UK; they received the sentence because they had joined proscribed organisation Kataib al-Muhajireen. According to former Guantanamo Bay detainee Moazzam Begg, who was a fellow inmate in Belmarsh prison, the pair were “young” and “bewildered”, and had not thought what they were doing was a crime. Two brothers were also jailed after attending a Syrian training camp for less than a month. Despite returning without having done any fighting, they were sentenced to four-and-a-half years and three years, respectively.

Citizenship revocation powers on the grounds of national security have been increasingly deployed in recent years. In November, reports emerged that an entire family (a British-born father and three sons) had been exiled from the UK due to alleged links with al-Qaida-linked groups in Pakistan. The family deny the allegations, and are appealing the ban. A detailed investigation by the Bureau of Investigative Journalism revealed that the number of UK citizenship revocation orders on national security grounds tripled in 2013, taking the number since 2006 to twenty-seven. At least fifteen of these individuals were abroad at the time of the deprivation order.  The Foreign Office has cited the fighters joining the Syrian war as the reason for this increase.

Where national security reasons are invoked (as they are in virtually all the cases brought under terrorism legislation), the substance of allegations is kept secret. However, police statements saying there is no immediate threat to the British public have accompanied virtually every recent Syria-related arrest (For example: Statement by Hampshire Police 14 October 2014; ‘Anti-terror police arrest five men in Dover and east London’, BBC 1 December 2014; ‘Police arrest man in Slough on suspicion of financing terrorism’ Guardian 13 November 2014; and a statement by the Head Teacher of the school where Jamshed Javeed worked ‘Teacher Jamshed Javeed admits Syria terror offences’ BBC 27 October 2014.)

Syrian Exceptionalism

UK citizens fighting in foreign wars are not universally criminalised. The Israeli Defence Force’s ‘Mahal’ programme enables foreign citizens to fight with the army in Israel, and these foreign fighters are not considered to be in breach of British law. The war in former Yugoslavia attracted fighters from Britain, many of whom were Muslims. After the beginning of the uprising against Muammar Gaddafi in Libya, UK nationals were known to be fighting against the regime with Islamist groups. Men who had been previously detained and investigated under counter-terrorism powers in the UK went on to fight against the Gaddafi regime – and were supported by the UK’s security services. Advocacy group CAGE reports a number of UK nationals – more than 100, by their estimates – who met no resistance from UK authorities when leaving the UK, or legal problems when they returned from Libya.

The recent selective criminalisation of foreign fighters in the Syrian conflict points to a deeper flaw within broader US/UK ‘War on Terror’ era military strategy: the enemy is poorly defined. It is often noted that the US’ arming of the Afghan mujahideen rebels during their struggle against the Soviets in the 1980s was a key historical factor in the resulting al-Qaida network. In 2013 the UK was on the brink of going to war with the Assad regime, and came close to fighting on the same side as the rebel groups that it now seeks to vanquish. Fighters who left the UK at the beginning of the Syrian war have been criminalised in their absence and now face a major disincentive to returning to civilian life. The absence of a long-term strategy focused on peace and informed by an ethic of equity and justice has resulted in a confusing picture of shifting alliances.

This militarised and reactive foreign policy results in shifting definitions of what constitutes terrorist activity at home. It is not only foreign fighters who are meeting overwrought security responses. Lawful activities such as charity work, political organising, membership of radical religious groups, and particular religious beliefs are increasingly caught up in the dragnet of counter-terror measures. The ongoing repression of Muslim charity organisations provides multiple examples of these blurred lines. The recent seven-month detention of Moazzam Begg is another.

One lesson from the last twelve years is that injustices carried out in the name of counter-terrorism themselves have a deep, global resonance. The enduring resonance within Muslim communities of the well-documented abuse of Guantanamo Bay inmates is indicated precisely by the apparent effectiveness as a recruiting tool by Islamic State. The distinctive orange jumpsuits, as well as imagery from the abuse of Iraqi prisoners in Abu Ghraib jail, have appeared in IS’ videos, recycled as evidence of IS’ own ability to dominate. The UK, along with the US and France, is widely perceived negatively as having a ‘Crusaderist’ or imperialist project to divide and weaken the Muslim world. The selective criminalisation of foreign fighters has great potential to fuel such resentment further.

 

Betsy Barkas is Oxford Research Group’s (ORG) Quaker Peace and Social Witness Peaceworker. She works as a Project Officer for ORG’s Sustainable Security programme, and co-edits sustainablesecurity.org.

Image: Protest to free Guantanamo Bay prisoners including Shaker Aaamer, the last British resident in Guantanamo Bay. Aamer has been detained without charge for over twelve years and cleared for release since 2007. Source: Flickr | shriekingtree