Bringing 'Em Back or Not? (I.D.'ed Cdn ISIS fighters, families, kids?)

[OldSolduer]

What do you propose that would be legal? There’s one set of options for combatants in a theatre of operations. There’s another set of options for civil prisoners in foreign custody.

To put it bluntly, our hands are tied. We won't have a choice.

He'll be coming back whether we like it or not.

 

[Remius]

Its' what we do with him when he gets here that will be the test.

 

[Journeyman]

Its' what we do with him when he gets here that will be the test.

We don't have a particularly stellar track record;  of the approximately 60 foreign fighters who have returned to Canada, we've managed to convict FOUR.

Cup half full, we've only paid one $10.6M 

 

[brihard]

A complicating factor for him: Logistics.

OK, he's a Canadian citizen by birth to a Canadian parent. By virtue of citizenship we cannot keep him out should he arrive (again, as always, our government needn't try too hard to help him here). If he gets here, he needs a place to stay, a roof over his head, food. He barely has a pot to piss in. Had he returned to Britain, safe to assume he'd have been back under his parents' roof.

His father is of course a Canadian citizen, and likewise can enter Canada. His mother, though, is a British citizen, not Canadian. More to the point, she's a British citizen with a conviction under the Terrorism Act for entering into a funding arrangement, an indictable offense that carries a maximum sentence of 14 years, and which carries comparable consequences in Canada. That makes her inadmissible to Canada for serious criminality.

So the father but not the mother can enter Canada. The son can't enter Britain. I don't know the father's immigration status in Britain, but I suspect they as a family are hyper-conscious about the potential consequences should he leave British soil with his similar conviction. There may not be any one single location where the whole family can be together. I think that's one of those 'stupid prizes'?

EDIT TO ADD: And of course immediately after I post this, the next article I read mentions that the couple has separated. So it may well end up as father and son back in Canada.

 

[Remius]

We don't have a particularly stellar track record;  of the approximately 60 foreign fighters who have returned to Canada, we've managed to convict FOUR.

Cup half full, we've only paid one $10.6M

Were not the only ones...

https://www.newyorker.com/news/news-desk/americas-isis-members-are-coming-home

 

[Kat Stevens]

Were not the only ones...

https://www.newyorker.com/news/news-desk/americas-isis-members-are-coming-home

Well, that makes it alright, then.

 

[The Bread Guy]

Well, that makes it alright, then.

No, but many folks who don't want this guy back (understandably) also seem to like many of the ideas of some who say these folks should be going back to their home territory to face trials ...

 

[FJAG]

No, but many folks who don't want this guy back (understandably) also seem to like many of the ideas of some who say these folks should be going back to their home territory to face trials ...

That's a whole lot easier said then done. Jurisdiction is a big issue. National laws respecting extraterritorial crimes are varied and, in some case, nonexistent.

Evidence in order to prove a case beyond a reasonable doubt is another.

By far the simplest solution is to allow Iraq and Syria to try and punish anyone for crimes committed within their territory although there remain issues with the various factions claiming control of parts of each country.

Bringing people "home" to North America or Europe for trial is by far the most complex and expensive process which will result in numerous offenders getting off scot-free.

:cheers:

 

[Cloud Cover]

In these cases it might be better to let a little bit of local justice trump national concerns and the niceties of western concepts of punishment fitting the crime. Bringing them here is a reward and a nod to nefarious and evil acts.  If the worst these people can expect upon capture or surrender is to be shipped to a place like Canada, there is no deterrent.

 

[FJAG]

In these cases it might be better to let a little bit of local justice trump national concerns and the niceties of western concepts of punishment fitting the crime. Bringing them here is a reward and a nod to nefarious and evil acts.  If the worst these people can expect upon capture or surrender is to be shipped to a place like Canada, there is no deterrent.

The Sixth amendment to the US Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence

In Canada:

R v Kellar (1973), 24 C.R.N.S. 71(*no CanLII links) , at p. 77, R v Singh, 2018 ONSC 1532 (CanLII), per Durno J, at para 150 ("There remains a presumption that a trial will be held in the place where the offence occurred. Reasons of convenience, court efficiency, and the need for members of the community in which the crime is alleged to have occurred to see justice done all continue to support holding the trial where the indictment was filed. However, in Canada there is no right to have a trial in a particular city, village or town where the offence occurred…")
see also R v Suzack, 2000 CanLII 5630 (ON CA), per Doherty JA ("It is a well-established principle that criminal trials should be held in the venue in which the alleged crime took place. This principle serves both the interests of the community and those of the accused")

My view is that the people of Syria and Iraq (even Jordan and some others) are entitled to see justice done within their jurisdictions. ISIS perpetrated or participated in some of the most heinous crimes against their people and property.

These are principles of our own laws. Why should we let our citizens who voluntarily went to a foreign country to commit crimes escape punishment by the very people they harmed?

:dunno:

 

[The Bread Guy]

In these cases it might be better to let a little bit of local justice trump national concerns and the niceties of western concepts of punishment fitting the crime.

My view is that the people of Syria and Iraq (even Jordan and some others) are entitled to see justice done within their jurisdictions. ISIS perpetrated or participated in some of the most heinous crimes against their people and property.

Agreed - local crime = local process + local time.  That said, if these folks are being held by an entity that isn't really a country @ this point (in Kurdish-held bits of other countries), do they have enough of a legal system to try these guys?  And we know what happened the last time we let Syria deal with a suspicious Canadian ...

 

[Oldgateboatdriver]

True enough, Milnews.

However, there is a big difference. In the Arrar case, the Canadian governement, through the improper actions of the RCMP, was found to have been the cause of Arrar's deportation to another country to face unwarranted justice for acts he did not commit (At least, that is the final narative from the various Supreme Court cases).

In the case of "terror travelers" like the present instance, these people voluntarily exited their country of origin to enter another country and commit acts there that may attract "proceedings" against them locally. In such case, Canada, or any other country, not only has no obligation but has no power to interfere in the justice system of such foreign countries - save to provide consular assistance where possible. And consular assistance, BTW, does not include providing in any way for the legal defence of such Canadian, nor their repatriation - unless they are a country we have Treaty with to permit repatriation after the trial in order to serve their sentence pronounced by the foreign power but in a Canadian jail. We have very few such treaties and they are usually with other Western democracies.

 

[The Bread Guy]

In the case of "terror travelers" like the present instance, these people voluntarily exited their country of origin to enter another country and commit acts there that may attract "proceedings" against them locally. In such case, Canada, or any other country, not only has no obligation but has no power to interfere in the justice system of such foreign countries - save to provide consular assistance where possible.

Seen.

Any insights re:  whether the Kurds have enough of a legal justice "system" to be considered even reasonable/"fair"?  I ask because I'm guessing (always stand to be corrected) if a Canadian were tried under such a system while laws in place in Canada could also deal with them, more compensation payments could be pending.  I suspect there's not much of a system in place, given their eagerness to move these folks along?

 

[Journeyman]

…. more compensation payments could be pending.

  :facepalm:

And of course, no one will commit to anything  potentially controversial until after the election.

 

[Czech_pivo]

True enough, Milnews.

However, there is a big difference. In the Arrar case, the Canadian governement, through the improper actions of the RCMP, was found to have been the cause of Arrar's deportation to another country to face unwarranted justice for acts he did not commit (At least, that is the final narative from the various Supreme Court cases).

In the case of "terror travelers" like the present instance, these people voluntarily exited their country of origin to enter another country and commit acts there that may attract "proceedings" against them locally. In such case, Canada, or any other country, not only has no obligation but has no power to interfere in the justice system of such foreign countries - save to provide consular assistance where possible. And consular assistance, BTW, does not include providing in any way for the legal defence of such Canadian, nor their repatriation - unless they are a country we have Treaty with to permit repatriation after the trial in order to serve their sentence pronounced by the foreign power but in a Canadian jail. We have very few such treaties and they are usually with other Western democracies.

Try them all in Den Hague and those convicted be jailed there.  They can swap stories about ethnic cleansing with the ex-Yugo's.

 

[The Bread Guy]

  :facepalm:

And of course, no one will commit to anything  potentially controversial until after the election.

:nod:

Try them all in Den Hague and those convicted be jailed there.  They can swap stories about ethnic cleansing with the ex-Yugo's.

The idea of "..."a special international tribunal in north-east Syria to prosecute terrorists" to ensure that trials are "conducted fairly and in accordance with international law and human rights covenants and charters" ..." has been brought up by the Kurds currently hosting the terror tourists.  I suspect the same issue of getting evidence from war zones and/or less-than-fully-rule-of-law states that'll stand up in court goes for int'l courts as much as it does for Canadian courts.

 

[Cloud Cover]

It can be done though. There was a special court set up for prosecutions in Cambodia and the Khmer Rouge.

https://www.nurembergacademy.org/fileadmin/user_upload/Cambodia.pdf

https://poseidon01.ssrn.com/delivery.php?ID=677119021086099006106006119118122088127008049065074002106110004027029109077121083073029003016045000030051090114084018115117087057042094035072064005007120079090127031089032086025022106116072094083014088082093097095116124030013069073089096087104104106013&EXT=pdf

https://journals.sagepub.com/eprint/7MKQ3K7iSXKK6tQPSWQi/full
Note: bit of a warning about making these crimes out in international law vs local, territorial, tribal or custom law- justice will be selective, limited and probably not what victims are entitled to see done, if there is any justice at all.
“This disjuncture between victim discourse and the delivery of ‘justice’ can in part be attributed to the selective delivery of justice offered by legal institutions (Robins, 2017: 45). Only a small number of atrocities fall within the scope of ICL, and of those only some will be acknowledged as such by the international community (Cryer, 2005; Simpson, 1997). Even those victims whose atrocities fall within ICL may be excluded from recognition and redress (Robins, 2017), as prosecutorial strategies prioritise specific harms and perpetrators over others (Pritchett, 2008; Côte, 2005). Those whose victimisations are prosecuted may continue to find themselves excluded from or marginalised by the trial process, as adversarial procedures may reduce their visibility within the courtroom (Dignan, 2005). These institutional choices with regards to jurisdictional limits, charges, and modes of victim participation, create what Kendall and Nouwen (2013) have termed a ‘pyramid’ of victimhood, with victims of harm at the bottom, and those recognised by ICL institutions as worthy of redress at the top.”

Going back up to what OGBD and FJAG are pointing out, it seems illogical to prosecute any of these ISIL criminals under country of origin or even international law. Justice should be delivered within the locality of where the crime was committed. To wit: Nuremberg is in Germany and some thoughts about the type and character of the law applied by the victors: https://www.theatlantic.com/magazine/archive/1946/04/nuremberg-a-fair-trial-a-dangerous-precedent/306492/

 

[brihard]

In the Citizen today, courtesy of Reuters:

Canada says it will not help Jihadi Jack come to the country

Pretty much as I’ve been saying... We can’t keep him out, but we don’t need to send him a plane or a ticket.

 

[The Bread Guy]

Thanks for sharing, Cloud Cover - forgot about those.

Note: bit of a warning about making these crimes out in international law vs local, territorial, tribal or custom law- justice will be selective, limited and probably not what victims are entitled to see done, if there is any justice at all.

Sadly, this wouldn't be the only such system where this'll be true ...

 

[The Bread Guy]

... And of course immediately after I post this, the next article I read mentions that the couple has separated. So it may well end up as father and son back in Canada.

Funny you should mention that ....  ;D

The father of Jack Letts, a Canadian who was stripped of his British citizenship over his alleged support for the Islamic State, says he is hoping to visit Canada in the coming weeks to advocate for his son’s repatriation and is considering a permanent move.

(...)

John said he and Ms. Lane are considering moving to Canada in the longer term because they’ve been “basically hounded out of Britain” for being Jack’s parents.

“It’s destroyed us in a personal sense. It’s destroyed our family. It’s certainly destroyed us financially. We’re about destitute. We literally can’t pay the rent so we have to abandon our rented house,” John said.

The couple was sentenced to 15 months in prison in June, but the judge suspended the sentence for a year, saying they had lost sight of reality while trying to help their son.

John said he and Ms. Lane would like to be in Canada if Jack is repatriated, so they can support him through his return.

“If Britain doesn’t like who I am, I’d happily move to Canada, and we’re talking about that as an option," he said ...

More in the Globe & Mail here.