Appeal court overturns ruling directing Ottawa to repatriate 4 men detained in Syria

Of note and, IMO, correct decision:

The Federal Court of Appeal has overturned a high-profile ruling ordering Canada to bring home four Canadian men detained in northeastern Syrian prisons for suspected ISIS members.

In January, Federal Court Justice Henry Brown ruled the four men were entitled to have the federal government make a formal request for their release “as soon as reasonably possible.”

But three appeal court judges disagreed with Brown’s decision and overturned it on Wednesday.

In their ruling, the judges wrote that Brown’s decision interpreted the right to enter Canada too broadly.

“[The previous ruling] took the right of Canadian citizens ‘to enter … Canada’ and transformed it into a right of Canadian citizens, wherever they might be, regardless of their conduct abroad, to return to Canada or to have their government take steps to rescue them and return them to Canada,” Wednesday’s ruling says.

“The right to enter, remain in and leave Canada, is not a golden ticket for Canadian citizens abroad to force their government to take steps — even risky, dangerous steps — so they can escape the consequences of their actions,” the ruling says.

The men travelled to northeastern Syria against the travel advice of the Canadian government and have been held in prisons for those suspected of ISIS affiliations. The camps in northeastern Syria are run by the Kurdish forces that reclaimed the war-torn region from the extremist group.

Canada not responsible for men’s detention: judges

In his January decision, Brown cited the conditions of the prison and the fact that the men haven’t been charged and brought to trial.

“The conditions of the … men are even more dire than those of the women and children who Canada has just agreed to repatriate,” Brown’s decision reads.

“There is no evidence any of them have been tried or convicted, let alone tried in a manner recognized or sanctioned by international law.”

But Wednesday’s appeal court ruling said the Canadian government is not responsible for the men’s detention in Syria.

“Canadian state conduct did not lead to the respondents being in northeastern Syria, did not prevent them from entering Canada, and did not cause or continue their plight. The respondents’ own conduct and persons abroad who have control over them alone are responsible,” the ruling reads.

Public Safety Minister Marco Mendicino said the government will take time to “absorb” the court’s ruling.

“Our priority first and foremost is that we safeguard the country and our borders from any potential terrorist activity,” he told reporters Wednesday.

Jack Letts, who has been imprisoned in Syria for more than four years after allegedly joining ISIS, is among the four men.

Sally Lane, Letts’ mother, said the appeal court decided to “to perpetuate the arbitrary detention and torture” of her son.

“The decision is nothing but victim-blaming and narrow legalese that stands in utter contempt of human rights law and fails to rise to the challenge of the moment,” Lane said in a statement provided by the family’s lawyer, Barbara Jackman.

Letts admitted in a 2019 interview to joining ISIS in Syria. His family says he made that admission under duress and there is no evidence that he ever fought for the group.

Jackman told CBC that they are considering taking the case to the Supreme Court, but a final decision hasn’t been made yet.

Lawrence Greenspon, a lawyer for the other applicants, also told CBC that his clients are considering an appeal.

In the past, Greenspon has argued that if there is any evidence the Canadians took part in terrorist activities, Canada should put them on trial here.

But former CSIS analyst Phil Gurski said he fears that any trial likely would end in an acquittal because the witnesses and evidence are located in Syria.

“I’m just not confident that the Canadian court system would have the resources to locate the witnesses … and the evidence to bring forward a successful trial,” he said.

Family members of Canadians detained in Syria — including the four men — have been asking the federal government to arrange for their return to Canada.

Prior to the January ruling, the government agreed to repatriate six women and 13 children from northeastern Syria.

At least three of those women have returned and were taken into police custody upon arrival. They have all been released pending terrorism peace bond applications.

A terrorism peace bond allows a judge to order a defendant to maintain good behaviour — sometimes with conditions such as a curfew — or face a prison sentence.

Source: Appeal court overturns ruling directing Ottawa to repatriate 4 men detained in Syria

Repatriation order for men in Syria raises questions about Canada’s consular obligations

I’m on the more cautious side on repatriation and the likelihood of rehabilitation, particularly with respect to adults:

Former diplomats say Canada should have moved to repatriate four men from northeastern Syria without a court order, avoiding another decision from the federal bench that casts more doubt on the country’s obligations to its citizens held for wrongdoing in foreign countries.

A day after the government came to an agreement to repatriate 19 women and children, the Federal Court ruled on Jan. 20 that four men held in detention camps for suspected ISIS members in northeastern Syria must be repatriated, too, noting that their living conditions are “even more dire than those of the women and children who Canada has just agreed to repatriate.”

The government has yet to indicate whether it will appeal the case. Prime Minister Justin Trudeau (Papineau, Que.) said on Jan. 23 that the government is looking at the situation “carefully” and is “making sure we’re defending Canadians’ safety and security.”

Former Canadian diplomat Daniel Livermore, who was director general of security and intelligence in Canada’s foreign service, said the Federal Court ruling will force Global Affairs to change its consular policy unless it is appealed.

“The tradition in consular service, the way it has been delivered … it doesn’t matter who you are and what you’ve done, you get consular service irrespective of background,” said Livermore, who authored Detained: Islamic Fundamentalist Extremism and the War on Terror in Canada. “Now, that didn’t happen with these people, and it didn’t happen because of their background.”

Livermore noted that there is little sympathy to provide any kind of assistance for those who are linked with allegedly going abroad to join a terrorist organization.

“I think the court case is really going to force the hands of Global Affairs to come up with something a lot better, and hopefully it is something that is anchored in a more sensible policy than they’ve pursued so far,” he said.

He added that in an “ideal world,” the case shouldn’t have even come to court and the repatriation should have taken place long ago.

In its policy framework to “evaluate the provision of extraordinary assistance,” the government notes that it has “no positive obligation under domestic or international law to provide consular assistance, including repatriation.”

The framework was unearthed as part of the Federal Court case.

The policy notes that Global Affairs “may” provide consular assistance to Canadians abroad with their request and consent, and pursuant to the government’s “royal prerogative on international relations.” The Federal Court ruled that the royal prerogative isn’t “exempt from constitutional scrutiny.”

Livermore said Canadian courts, in successive cases, have undermined the government’s claim of not having to provide consular assistance, including the most recent January decision. He said the notion was also disputed in 2010 when the Supreme Court of Canada ruled on Omar Khadr’s case. The top court ruled it could order the government to ask the United States to repatriate Khadr from detention in Guantanamo Bay, but chose not to. Livermore also cited the case of Abousfian Abdelrazik, who the Federal Court ordered be repatriated from Sudan in 2009.

“[The three cases show] a nice little pattern, which undermines the royal prerogative argument and limits it very substantially,” he said.

He said the consular policy is a “residue” of Canada’s post-9/11 policies.

“A lot of our policies were changed without thinking them through,” he said. “A lot of the security agencies at the centre, at the [Privy Council Office], began to exercise powers that they don’t legitimately have a right to claim. Now we’re starting to untangle all this stuff … so presumably Global Affairs will have to work on that a bit and it will be interesting to see how it will come up with it.”

Livermore said one solution for future consular cases is to remove the RCMP and the Canadian Security Intelligence Service (CSIS) from the co-management of the situation, suggesting that could be done by invoking the individual’s rights under the Privacy Act.

Under the government’s framework, CSIS and the RCMP will determine the “potential threat” an individual poses to public safety and national security, which includes “the individual’s involvement in, or association with, terrorist activity, and whether the risk of their return to Canada can be sufficiently mitigated in transit and upon arrival.”

Unlike other countries, Canada has made little progress to repatriate its citizens who have been held in Kurdish-controlled camps in the Autonomous Administration of North and East Syria (AANES).

The government has cited safety concerns for its inability to travel to the camps to assess the consular cases. Under its framework, it notes that one of the guiding principles is that government officials “must not be put in harm’s way.” Other countries’ diplomats, as well as academics, journalists, and civil society advocates, have gone to the AANES camps.

Patricia Fortier, who served as Global Affairs Canada’s assistant deputy minister responsible for security, consular, and emergency management prior to her retirement in 2016, said the duty-of-care issue is a “very live issue.”

“There is no question that it is more top of mind now than it was in the past,” she said. “No one wants to order an officer into a place where they might not come back or they might be injured.”

She said the recent Federal Court decision continues a “long string” of cases involving the post-9/11 context and return to Canada.

“In each of those, everyone predicted that it would change things and it didn’t,” she said.

She said that the repatriation of the women and children had to come, but the question of the men is a more difficult one for potential public safety reasons.

“It’s going to be a really difficult security question,” she said, noting the situation is unlike many other consular cases as the Kurds who have control over the camps want to offload all the detainees.

“It is an odd situation,” she said, noting that it is unlikely that a similar case will have to be dealt with in the future.

Fortier said the situation will likely be resolved by Global Affairs and the security agencies, with the possible input of the defence department, before winding up on Trudeau’s desk.

She also noted the concern of the Yazidi population in Canada. In 2016, the House of Commons passed a motion that recognized that ISIS was committing genocide against Yazidi people. CBC News reported that survivors of the genocide who have resettled in Canada feel “heartbroken and betrayed.”

She said it is not always possible for the government to have a positive obligation to provide consular assistance, noting that could require Canada to repatriate a Canadian abroad who simply runs out of money.

Former diplomat Gar Pardy, who was the director general of the consular affairs bureau in the foreign service, said he doubted that the government would be interested in using the Federal Court’s decision as a foundation to change its consular policy.

He said that is why he thinks the government will appeal the decision.

Regardless of how the court process ends, Pardy said the government should be repatriating its citizens in northeastern Syria.

“The Canadian government should join what other governments have done,” he said, noting that many of Canada’s allies have repatriated their citizens who were in Syria. “Why the Canadian government has not followed this path—it just doesn’t seem to make any sense.”

The NDP and Green Party have called on the government to move forward on repatriation.

Source: Repatriation order for men in Syria raises questions about Canada’s consular obligations

Yazidis plead with Canada not to repatriate ISIS members

In contrast to the overly sympathetic article on efforts to rehabilitate ISIS returnees, a needed counterpoint from the experience of Yazidi women who were raped, tortured and otherwise abused by ISIS men and women. Not sure if Justice Brown and the court considered this context in his ruling:

The looming return of alleged ISIS members to Canada has brought trauma, worry and fear to people who were invited to Canada as a safe haven after the terrorist group all but destroyed their ancient community in northern Iraq.

“When I first heard the news, I felt the strength leave my body,” Huda Ilyas Alhamad told CBC News in her Winnipeg apartment. She is one of 1,200 survivors of the Yazidi genocide who were resettled in Canada; she spent years as a slave of ISIS members.

“I had to sit down right away. I was heartbroken and terrified at the same time because on one hand they had promised to protect us and bring us here and give us safety, and on the other hand they’re offering that same entryway for these very people who raped and tortured us on a daily basis.”

Source: Yazidis plead with Canada not to repatriate ISIS members

Canada must bring home its own from the ruins of Islamic State

Almost completely silent on the challenges of successful prosecution. And there is a different in terms of letting them return to Canada and actively facilitating their return:

I despise Daesh (the Islamic State group) and its ilk. In fact, I have spent a better part of my life challenging their religious  interpretations and practices.

Yet, I believe that Ottawa must repatriate Canadians who answered the Daesh call, because this is the right thing to do if we truly believe in human rights and constitutional principles.

For children’s sake

We must learn from the recent death of Jarrar, the newborn son of British-born Shamima Begum, who left the UK as a 15-year-old. The baby died after London revoked Shamima’s citizenship and left them both to ostensibly stew in her hate.

Under British law, Shamima Begum was a child when she left. Now, a British baby is dead for his parents’ sins. As British MP Anna Soubry wrote, the UK breached its duty to Jarrar.

There are at least 32 Canadians being held by the US-backed Syrian Democratic Forces

The former Conservative MP rightfully argued that Shamima should have been brought to the UK, questioned, and had the law books thrown at her while her son should have been given the “protection and the support that a civilised country provides for all its children.”

Kurdish authorities say that 5,000 former alleged IS fighters and their families are being held in makeshift prisons in Iraq.

This includes 1,300 children. Russia repatriated 27 children in February. France has agreed to repatriate around 130 fighters and their families.

Belgians, who composed the largest number of Caliphate fighters per capita, are not feeling particularly welcome. Late last year, going against public opinion, a Belgian court ruled that the government must repatriate its citizens.

In a principled and courageous decision, the Solomonic judge ruled that bringing the children without their mothers – who were convicted in absentia – would violate their human rights. The judge also imposed a daily penalty of 5,000 euros per child against the government until they were returned.

Belgium’s migration secretary said: “We won’t punish young children for their parents’ misdeeds. They have not chosen the Islamic State.”

Unfortunately, an appellate court overturned the decision a few weeks ago and now 160 Belgian children are in limbo.

A mature debate

Canadian Public Security Minister Ralph Goodale says the government has not decided what to do.

Canada needs to act before we read about Canadian children dying in Syrian camps.

Rather than having a mature  debate about bringing IS members to justice, our politicians appear to be gauging the public mood rather than stepping up

According to CBC, there are at least 32 Canadians being held by the US-backed Syrian Democratic Forces. Dr Alexandra Bain of the Canadian group Families Against Violent Extremism (FAVE) claims that more than half of those held in Syria are under the age of five.

Rather than having a mature and constitutionally rooted debate about bringing Daesh members to justice and dealing with non-combatants as well as women and children, our politicians appear to be guaging the public mood rather than stepping up.

Leadership may require that you sometimes stand up to mobocracy (the whims of the majority) and it always means standing up for constitutionally entrenched rights – even for the detested.

Why bring them back?

Rather than following the examples set by Macedonia, Russia, France, etc, Canada caved into British “arm-twisting” and breached a deal with Kurdish authorities to repatriate Canadian citizens, according to a report by the Guardian.

These individuals went there for reasons ranging from ideological affinity, out of a sense of religious obligation, due to being brainwashed, the promise of adventure, the opportunity to create an Islamic utopia, out of empathy to relieve the suffering of others, while others were duped, forced or taken against their will.

Why should we bring them back?

First, as citizens, they have a right to come back to Canada. Though this does not impose an obligation on Ottawa to take proactive steps to bring back adults, a strong argument can be made that there is a mandatory duty owed to Canadian children.

Indeed, under the common law, our government through the courts have the parens patraie jurisdiction to look out for the best interest and welfare of our children. This is reason alone.

Setting a precedent

Second, contrary to what many people want, under international law we can’t just watch as these people are executed without due process, or held to rot even as evil as they are. Otherwise, as President Trump said correctly, if they are left alone they may continue to create havoc elsewhere.

We must set a precedent and send out a message to any of our citizens who may contemplate such actions in the future that there are consequences for such actions. This is best done by putting those who are culpable on trial.

Leaving Canada to participate in a terror group is an offence under the criminal code punishable to a term of up to 10 years. Indeed, as General Lord Richard Dannatt, a former head of the British army, told the Guardian about British fighters:

“They have to be put through due process and imprisoned if that is the right thing to do,” he said. “But I think it is also important that we treat them fairly with justice and tempered with a bit of mercy as well because I think the way we treat them may well have important significance for the way other people view our society.

“We don’t want to see others radicalised and going off overseas in the future. How we treat these people coming back – fairly but firmly – we’ve got to get it right.”

We have failed

Third, most of these individuals were born “here” and more importantly were radicalised “here” not “there”. We bear part of the responsibility because we – as a society – and our institutions failed in not preventing them from being radicalised and in the case of many women from being groomed as brides.

It is tempting to dehumanise them and easy to “other” them, but let us not forget that we extend full due process rights even to paedophiles, mass murderers and serial killers.

Fourth, some of these individuals may serve as resources to fight radicalisation after they have been de-radicalised, after serving time, if deserved.

As argued in a New York Times op-ed by Bryant Neal Vinas, America’s first Al-Qaeda fighter, these returning fighters “can be a strategic asset” to fight radicalisation if we play it right.

Fifth, western nations, including Canada, pursue criminals to the far corners of the world using extradition treaties and other means. Indeed, we have even engaged in extraordinary rendition and participated in torture of our own citizens when we thought it was necessary. Yet, now it’s too difficult to pursue these people?

Of course, it would be disingenuous to argue that traitors who engage in terrorism should be treated the same as other criminals, because the state interests are especially compelling. At the same time, the values engaged in this context – equality, freedom of speech, religion, and association – make it important that we tread in a firm but cautious manner.

It is high time that we engage in reasoned, nuanced and considered debate in a manner consistent with our well-established values, including justice, fairness and compassion.

We cannot base our decisions on emotion, populist fear, hatred or our whims, because then we are no better than them.

Source: Canada must bring home its own from the ruins of Islamic State