Anti-Terrorism Law and Foreign Terrorist Fighters

Jessie Blackbourn, Deniz Kayis, Nicola McGarrity

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351605434
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Jessie Blackbourn is a research fellow at the Centre for Socio-Legal Studies at the University of Oxford, UK.

Deniz Kayis is currently the Associate for Chief Justice Allsop AO of the Federal Court of Australia.

Nicola McGarrity is a senior lecturer and the Director of the Terrorism Law Reform Project at the University of New South Wales, Australia.

1 Introduction

DOI: 10.4324/9781351605441-1

Just after 10.30pm on 22 May 2017, as more than 14,000 people were leaving a performance by American pop singer Ariana Grande, an improvised explosive device was detonated in the foyer of the Manchester Arena. The detonation killed 23 people and injured another 250. One of those killed was the suicide bomber, Salman Ramadan Abedi. There was then—and indeed continues to be—some confusion about the extent to which the UK authorities were aware of Abedi’s activities prior to the bombing.¹ He had been arrested in 2012 for minor criminal offences. The British Broadcasting Corporation (BBC) also reported that acquaintances of Abedi at Manchester College had called an anti-terrorism hotline expressing concern about his extremist views. Any knowledge of these calls was denied by the Greater Manchester Police; however, the UK’s domestic intelligence agency, MI5, has since commenced a review of its processes in light of confirmation by the callers.² An independent report of MI5 and police internal reviews was also released in December 2017. This report, by former Independent Reviewer of Terrorism Legislation (IRTL) David Anderson, clarified that while Abedi was a peripheral subject of interest, he was not under investigation at the time of the attack. He was classed as a ‘closed’ subject of interest of ‘low residual risk’, meaning he was no longer assessed as representing a national security threat. However, Abedi had also recently been identified as one of a ‘small number of individuals … who merited further examination’. This further examination as to the threat posed by Abedi was due to take place on 31 May 2017, a mere nine days after the Manchester Arena terrorist attack.³

The unfortunate reality is that terrorism is nothing new (nor indeed even unexpected) in the UK. That country has been grappling with the threat posed by terrorism for over a century. The critical point, however, insofar as the modern threat of terrorism is concerned, is the increasing percentage of terrorist attacks with links to international terrorist organisations, especially Islamic State,⁴ Al-Qaida, and their affiliates. This may be contrasted with the concentration upon Northern Irish terrorism from the early 1970s to the late 1990s. Two months prior to the bombing of the Manchester Arena, Khalid Masood drove a car along the pavement at Westminster Bridge, killing five pedestrians before abandoning the car and fatally stabbing a police constable. A further three terrorist attacks have occurred in the UK in 2017, all but one of which—the attack near the Muslim Welfare House in Finsbury Park in June 2017—bear some connection to Islamic State.

Australia is in a similar position. Since December 2014, there have been at least five terrorist attacks on Australian soil. With just one exception, being the arson committed at the Imam Ali Islamic Centre in December 2016, each of these may be attributed to Islamic State. These attacks are; the stabbing of two police officers outside the Endeavour Hills police station in September 2014; the Lindt café siege in December 2014; the murder of police accountant, Curtis Cheng, in October 2015; and the stabbing of a member of the public in Minto in regional New South Wales in September 2016. A sixth incident, namely, the shooting of one person and holding of another hostage at an apartment complex in Melbourne in June 2017, has also been described by the current Independent National Security Legislation Monitor (INSLM), James Renwick, as an act of terrorism.⁵ However, George Williams has written that ‘[w]e cannot be certain, and may never know, whether he was involved in an act of terrorism or if his actions were merely those of a violent, drug-affected man’.⁶

In many instances, attribution to Islamic State has been straightforward in that responsibility has been explicitly claimed by the organisation. Indeed, in respect of the bombing at the Manchester Arena, Islamic State published not one, but two claims of responsibility. The first described the attacker as a ‘soldier of the Khilafah [caliphate]’, and the other identified a ‘security detachment’ as responsible.⁷ However, even in these supposedly ‘easy’ cases, the authorities in the relevant jurisdiction have gone on to undertake the complex task of mapping the relationship between the attacker and Islamic State. Where the attacker has been charged and brought before the courts, undertaking this task has been necessary to prove the motivational element of the definition of terrorism to the criminal standard of beyond a reasonable doubt.⁸ Such trials have, however, been the exception rather than the rule. This is because the majority of those who have committed terrorist attacks in Australia and the UK have been killed in the course of those incidents. Nevertheless, investigations into the relationship between the perpetrator and Islamic State have still been undertaken by the authorities for the dual purposes of identifying any accomplices, as well as better understanding the processes of radicalisation and thus what can be done to minimise the risk of homegrown terrorism.

It is these investigations which have occupied the time of UK intelligence and law enforcement agencies in the aftermath of the terrorist attack at the Manchester Arena. In the course of their investigations, evidence emerged that Abedi, a Mancunian of Libyan descent, had met with operatives of the Katibat al-Battar al-Libi during a trip to Libya shortly before the attack.⁹ This group, which was formed by Libyans who had fought in the previous Iraq and Afghanistan conflicts, provided one of the first contingents of foreigners to arrive in Syria in 2012. Since pledging allegiance to Islamic State leader, Abu Bakr Al-Baghdadi, Katibat al-Battar al-Libi has also been linked to attacks throughout Europe. These include the synchronised attacks in Paris on 13 November 2015 which killed 130 people, and the attack by Anis Amra upon a Christmas market in Berlin in December 2016.¹⁰ Although the evidence is not conclusive—and, given his death, likely never will be—Abedi is suspected of having been trained in the use of explosives by the Libyan group with the intention of returning to the UK to commit a terrorist act. In other words, he was a returned ‘foreign terrorist fighter’.

Despite the co-opting of this phrase by politicians and the media to describe Westerners involved in the current Syrian and Iraqi conflicts, the phenomenon of people participating in foreign conflicts has a long history. It goes back at least as far as the early Viking invasions, the twelfth- and thirteenth-century Crusades, the involvement of Guy Fawkes in the 1605 Gunpowder Plot, the American Revolution, the Spanish Civil War, and the involvement of the Mujahedeen in the Soviet-Afghan War.¹¹ Many—if not most—of these historical examples would fall within the definition of ‘foreign terrorist fighters’ provided by the United Nations Security Council (UNSC) in Resolution 2178.¹² The catalyst for the adoption of this Resolution on 24 September 2014 was the ‘particular concern that foreign terrorist fighters are being recruited by and are joining entities such as the Islamic State, … the Al-Nusrah Front … and other cells, affiliates, splinter groups or derivatives of Al-Qaida’.¹³ However, the definition goes far beyond this to include any

individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection with armed conflict.¹⁴

Not only does the breadth of this definition make it clear that the challenges posed by foreign terrorist fighters in the modern era have historical precedents, but it also forces a reconsideration of the prevailing stereotypes about the role of such fighters in the Syrian and Iraqi conflicts. In understanding the challenges that Australia and the UK face, as well as the effectiveness of their legislative responses to those challenges, the heterogeneity of the foreign terrorist fighters phenomenon as manifested in these conflicts must be borne in mind. The definition in Resolution 2178 does not refer to any specific terrorist organisation (albeit that concern about Islamic State, the Al-Nusrah Front, Al-Qaida, and their affiliates was part of the context in which it was adopted). Not all the individuals who have travelled to Syria and Iraq did so for the purpose of supporting the aforementioned organisations.

In contrast to the stereotype of the foreign terrorist fighter, many individuals participated in the Syrian conflict in its early stages, prior to the advent of Islamic State. The Syrian civil war commenced in March 2011, in response to President Bashar-al-Assad’s suppression of peaceful protests occurring as part of the Arab Spring. However, Islamic State was not formed for another two years. That organisation quickly achieved military success, taking over the Syrian city of Raqqa in March 2013, followed by the second largest city in Iraq, Mosul, in June the following year. Several months later, Islamic State declared a caliphate in Iraq and Syria and claimed authority over the world’s Muslims. In addition to the early participants, other individuals have travelled to the conflict zones since April 2013—when the organisation was formed—to fight against it. The difficulty, so far as the legitimacy of such activities is concerned, is that most of the opponents of Islamic State, such as the Kurdish YPG (People’s Defence Forces) and YPJ (Women’s Protection Units), are themselves characterised as terrorist organisations.

Another facet of the heterogeneity of the phenomenon is that not all foreign terrorist fighters are—in spite of what that phrase might suggest—actually engaged in combat. There is a spectrum of involvement which ranges from those fighting on the front line, to children who were taken by their parents to the conflict zones, or were even born there. For example, in January 2016, an unnamed woman from Bradford in the UK was sentenced to more than five years imprisonment for attempting to travel to Syria with her two children without their father’s consent. In sentencing the woman, Justice Jameson stated:

The fate of your children would have been either to have subscribed, fully and actively, as we have all seen in the appalling use of a young child in an IS propaganda video in recent days, to such behaviour, or to have suffered it themselves…. This was a terrible betrayal of your responsibilities to your children and of their trust in you.¹⁵

Sitting somewhere in the grey area between individuals engaged in combat and innocent children are those who provide forms of support to Islamic State, Al-Qaida, and their affiliates behind the front line, such as medical assistance and operation of its extensive propaganda machinery. A particularly significant problem in the UK has been the travel of more than 50 young women to Syria and Iraq to marry foreign terrorist fighters and become the mothers of a next generation of fighters.¹⁶

This book does not challenge the core of the position taken by the authorities in both Australia and the UK that the foreign terrorist fighters phenomenon as manifested in the Syrian and Iraqi conflicts ‘demands specific and targeted measures to mitigate this threat’.¹⁷ This phenomenon should not be dismissed as simply one aspect of the general threat posed by terrorism in the twenty-first century. Nor should it be regarded as indistinguishable from historical precedents like those already mentioned above. As the Home Secretary, Amber Rudd, informed the UK Parliament on 22 June 2017: ‘We now believe we are experiencing a new trend in the threat we face’.¹⁸ The number of Westerners, including from Australia and the UK, who have travelled to Syria and Iraq in recent years represents a significant increase upon the numbers involved in other conflicts in the modern era. In June 2014, the Soufan Group estimated that more than 12,000 foreign terrorist fighters from 81 countries had travelled to Syria to join the conflict. Of those, 3,000 were from Western countries.¹⁹ By December 2015, the conflict had spread to Iraq, and the number of foreign terrorist fighters had more than doubled, to somewhere between 27,000 and 31,000 foreign terrorist fighters, including more than 10,000 Westerners.²⁰ Less than one year later, on 2 June 2016, a US State Department official reported that intelligence estimates put over 40,000 foreign terrorist fighters from over 100 countries as having travelled to the Syrian and Iraqi conflicts.²¹

Accepting that a direct and targeted response is necessary, this book evaluates the effectiveness of the legislative responses to this phenomenon in Australia and the UK. The concentration upon ...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgments
• Author Biographies
• Glossary
• 1 Introduction
• 2 Criminal Justice System
• 3 Hybrid Sanctions
• 4 Immigration and Citizenship
• 5 Lessons
• Index