Ahmad Waseem case illustrates Canada's foreign fighter problem
Foreign Enlistment Act of 1937 imposes 'obviously antiquated' penalties on those fighting abroad, lawyer says
An airline ticket and a will to fight for a cause. That's all some Canadians need in order to join insurgencies overseas, as the case of Ahmad Waseem, a 26-year-old Windsor, Ont., man who left Canada to fight in the civil war in Syria, and others have shown.
About 130 Canadian citizens are suspected of leaving the country to wage jihad abroad, according to figures provided by CSIS, Canada's intelligence agency, in February of this year.
Easy as it might be for those interested in fighting for a cause to leave Canada and join armed groups elsewhere, prosecuting someone for fighting in foreign wars is far from a simple matter.
Legal and national security scholars attribute this to "antiquated" rules unchanged since the Spanish Civil War and the complexities involved in officially labelling armed groups terrorist organizations.
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"The basic thing is you can't really stop people from going abroad and fighting in wars," said Ron Crelinsten, an associate fellow with the Centre for Global Studies at the University of Victoria.
The come-and-go nature of Waseem's travels between his hometown of Windsor and Syria typifies the legal challenges, particularly as they apply to Canada's Anti-Terrorism Act, Crelinsten said.
In the 1930s, an estimated 1,400 Canadians joined the international brigades fighting the nationalist forces of Francisco Franco in the Spanish Civil War. In 2011, Canadians sought to liberate Libya from Moammar Gadhafi's regime.
Others have since answered calls to fight Bashar al-Assad's forces in Syria, which remains embroiled in a civil war that began more than three years ago and now involves various armed groups.
"In Waseem's case, it all relates to what's a 'terrorist group,'" Crelinsten said.
Waseem flew twice to Syria to take part in battle and returned home to receive treatment for his wounds in between. According to reports, he joined Islamist extremists there, but unless a rebel group is a bona fide "terrorist entity" identified as such by Public Safety Canada, fraternizing with foreign militias is not technically illegal.
Read more about other Canadian foreign fighters
- Xristos Katsiroubas, Canadian in Algeria gas plant attack, attempted suicide bombing
- Canadians in Algeria attack became angry, alienated at home
- Andre Poulin, jihadi from Timmins, Ont., confirmed dead in Syria
- Brother of Canadian killed in Libya expresses shock
- Hasibullah Yusufzai, of Burnaby, B.C., faces terror-related charge
That's because while Canada's new anti-terror legislation is meant to curb so-called terror tourism, leaving the country to engage in hostilities against a foreign state is not, strictly speaking, a terrorist act.
There are two ways to define terrorist activity, explained John Norris, a criminal defence lawyer who has represented Omar Khadr and Raed Jaser, accused of plotting to sabotage a Via passenger train.
"One is to be a group that has been listed as such by the Canadian government; the other is to be part a group in which at least one of their activities is engaging in terrorist activity," Norris said.
Prosecuting the first kind of case, in which evidence proves membership in a government-listed terrorist entity, is straightforward. Verifying the latter beyond a reasonable doubt is when things gets muddy.
"We still have enormous problems trying to secure war-crimes convictions out of Rwanda, a conflict that happened a couple decades ago," University of Ottawa law professor Craig Forcese said.
"Now, imagine trying to secure convictions out of an active war zone."
53 named 'terrorist entities'
Forcese, who also blogs about national security, calls it a "square peg, round hole" problem in which policymakers try to squeeze a "foreign fighter phenomenon" into a terrorism law.
"Terrorism is a narrowly defined concept. Not every foreign fighter is going to satisfy those elements," he said.
Public Safety Canada currently designates 53 groups as terrorist entities, including Boko Haram, al-Qaeda and ISIS, which was listed in 2012 under a different name.
But there are political complications to "deciding which insurgencies we like and which we don't like," Norris said.
Today's allies may become tomorrow's foes.
"Groups can change their stripes; they can change their message," Norris said.
Ziyaad Mia, a lawyer specializing in human rights and national security, noted that the U.S. backed and armed the Afghan mujahedeen during the Cold War when those forces were fighting the Soviets.
"We encouraged them, and the CIA did, too," Mia said. "How would they look at that group now? History changed."
I find it astonishing that the Canadian government can't regulate who it is that Canadians fight with when they go overseas.- Craig Forcese, University of Ottawa law professor
Critics of the current anti-terror laws argue that the lack of clear "terrorist entity" labels for armed insurgent groups in Syria or Ukraine effectively neuters Canada's legislative anti-terror tools.
Forcese recalled reading a report in The National Post that an RCMP officer was asked during an outreach session at a Windsor mosque whether it was illegal for Canadians to fight with rebels in Syria.
"[The officer] couldn't say it was illegal," Forcese said. "The imam was quite flustered and said, 'If the government can't stop these young men from going, how do they expect us to stop them?'"
Current penalties 'obviously antiquated'
As it stands, without meeting Canada's definitions of terrorism, the only law preventing citizens from freely joining armed militias in conflicts overseas is the Canada's Foreign Enlistment Act of 1937, a piece of legislation with "obviously antiquated penalties" aimed at stemming the tide of Canadians fighting in the Spanish Civil War, Forcese said.
"It was very much a one-off, and it doesn't work anymore," he said.
Under the act, offenders can face fines of up to $2,000 and prison terms of a maximum of two years "with or without hard labour."
"As best as we can establish, there have been no convictions under the Foreign Enlistment Act," Forcese writes in a law review about legal solutions to prevent recruitment of Canadians for foreign insurgencies.
Authorities do have some tools at their disposal with which to tackle the problem of Canadians fighting abroad. Under the Canadian Passport Order, they can revoke or refuse to issue an individual's passport if the foreign affairs minister "is of the opinion that such action is necessary for the national security of Canada or another country."
Under the Strengthening Canadian Citizenship Act, they can also strip a dual citizens of Canadian citizenship if that person is convicted of terrorism, treason, spying or is a member of an "an armed force or an organized armed group engaged in armed conflict with Canada."
Australia offers alternative model
It's telling that Waseem is wanted by the RCMP on charges of passport fraud but not terror-related crimes. In his case, says Forcese, it is more than likely that if he ever returns to Canada, he'll be prosecuted on those charges — which carry a sentence of up to 14 years in prison — rather than for his activities in Syria.
"It's sort of an Al Capone strategy," Forcese said, referring to the FBI's inability to pin any charges but tax evasion against the notorious Chicago gangster.
Alex Neve, the secretary general of Amnesty International Canada, said his concerns lie with whether foreign fighters violate the Geneva Convention, which set out the international rules of war, during their travels.
"Human-rights law would be concerned that if an individual is going to take part in an armed conflict or insurgency … and there's reason to believe that in doing so, they're likely to be involved in the commission of war crimes or crimes against humanity, then it would be important to look at what kinds of legal restrictions would be imposed," Neve said.
Another consideration is that the labels "terrorist" and "insurgent" are highly charged.
"Some of these terms can be very politicized," Neve said.
Forcese's proposal? Adopting a Canadian "neutrality act" modelled after Australia's Crimes (Incursions and Recruitment) Act, with a blanket ban on taking up arms with any non-government army.
The Australian law includes a maximum prison sentence of 20 years if a citizen or resident enters a foreign state with intent to engage in hostile activity.
"That includes trying to overthrow the government or injuring public office holders, or basically engaging in a war," Forcese said.
It would also prohibit financing armed groups on behalf of a faction that isn't part of a foreign government.
Outright ban wouldn't work in multicultural Canada
A Canadian version of the Australian law would give law enforcement agencies an actual legal tool with which to stop foreign incursions by Canadian citizens, Forcese argued. It would allow dual citizens to satisfy conscription requirements so they could still train or fight with the militaries of their home countries, for example.
Norris, the lawyer who represented Khadr, isn't so sure such a piece of legislation would work in multicultural Canada. Not when so many immigrants remain geopolitically engaged on an international level and may hold allegiances to groups and causes that operate outside official state governments.
After all, Canadians served with the U.S. Army in Vietnam, as well as with Union troops during the American Civil War. Many people would consider Canadians who joined the citizens brigades in the Spanish Civil War to have fought with the correct side, Norris said.
"There has to be some degree of respect for the autonomous decisions that people make," he went on. "So, I'm not sure that I would support an outright ban on joining any form of insurgency."
If there's one thing the Canadian government should be able to do, it's control its foreign affairs.- Craig Forcese, University of Ottawa law professor
The point, Forcese said, is that allowing "freelancers" to fight in foreign insurgencies undermines the Canadian government's ability to control its geopolitics and risks "bleedout" — the intelligence community's term for the threat of foreign-trained fighters potentially waging terrorist attacks back home.
"There's the prospect they'll pose a security risk in Canada," Forcese said.
"I find it astonishing that the Canadian government can't regulate who it is that Canadians fight with when they go overseas. And if there's one thing the Canadian government should be able to do, it's control its foreign affairs."