LexisNexis
lslaw

The fraught issue of British ‘jihadis’

Anne McMillan

Emotive responses to the Shamima Begum case from some quarters of the media and influential politicians has further highlighted growing tensions between populism and the rule of law.

According to her sister, Shamima Begum’s favourite TV programme was Keeping Up with the Kardashians. Unfortunately, Begum’s teenage fantasy view of the world also included joining ISIS.

In December 2014, one of her East London school friends left to join the terrorist organisation. The police interviewed 15-year-old Begum and others, fearing they may also have been influenced, but concluded they were not at risk.

The authorities gave each girl a letter for their parents explaining the dangers of radicalisation. The letter was found undelivered in Begum’s school bag after she had left for Syria in February 2015 on a passport stolen from her sister.

The police subsequently apologised for failing to alert the girls’ parents directly and said the teenagers could come back to the UK without facing terrorism charges. No such welcome is on offer now.

Four years later, with ISIS all but destroyed, a journalist discovered Begum in a refugee camp in Syria. Begum’s televised interview, where she expressed a wish to return to Britain, partly for the sake of her unborn child, did not go well.

Dressed head to foot in a black chador, she nonchalantly recalled the sight of an ISIS victim’s decapitated head in a bin, saying that ‘it didn’t faze me at all’. She appeared confident, not repentant. Even Renu Begum, her sister, remarked that this cold-hearted appearance ‘set fire to our nation’s emotions’.

The British Home Secretary, Sajid Javid, quickly announced that he would prevent Begum returning to the UK by stripping her of citizenship. Many people challenged the legal basis for his comment, with former Home Secretary Ken Clarke saying: ‘I think he had better consult his lawyers.’

Backtracking on his statement, Javid accepted it would be illegal for the UK to make Begum stateless, but then apparently discovered that she might be entitled to Bangladeshi citizenship. The Bangladeshi foreign ministry quickly disowned Begum: ‘Ms Shamima Begum is not a Bangladeshi citizen. She is a British citizen by birth and never applied for dual nationality with Bangladesh... There is no question of her being allowed to enter into Bangladesh.’ Nevertheless, Javid stripped Begum of British citizenship.

One of the most disturbing aspects of the Begum case is the apparent influence of public opinion upon her fate. Some politicians, especially those with political ambitions, seem to reason that acting tough with ISIS terrorists and their supporters is a popular strategy. Human rights barrister Philippe Sands QC says of Javid:

If we are to take our own citizens back, as I believe we should, we must be prepared to deal with the possible consequences

David Anderson QC
Former Independent Reviewer of UK Terrorism Legislation

‘[I] have a horrible suspicion that this has nothing to do with the merits of the case but rather more to do with the burnishing of his credentials in the face of an upcoming Tory Party leadership.’

Is Begum so dangerous that depriving her of citizenship is the only option? At the moment, we don’t know whether she has committed any criminal acts. In the meantime, holding abhorrent views should not be grounds for stripping someone of citizenship. About 400 individuals ‘of national security concern’, including ISIS fighters, have already returned to the UK from Syria and Iraq, although only 40 have been successfully prosecuted, according to UK Home Office figures.

There is also the issue of proportionality. David Anderson QC is a former Independent Reviewer of Terrorism Legislation for the UK. ‘For many returnees, whether or not they are put on trial, the most appropriate long-term solution will be de-radicalisation and re-engagement programmes such as those developed under the UK’s Prevent strategy,’ he says. ‘That strategy has long been controversial, and is soon to be independently reviewed. But if we are to take our own citizens back, as I believe we should, we must be prepared to deal with the possible consequences.’

Naturally, the legal rights of ISIS returnees, like Begum, must be balanced against the need to protect the public from terrorism. However, counter-terrorism measures already exist within current legislation to deal with a situation where prosecution isn’t possible.

These include electronic tagging orders, requirements to report regularly to the police, restrictions on the use of social media and strict constraints on movement or contacts, though such measures can only be applied for a maximum of two years. Still, if current legal measures are found wanting in efficacy, it is up to governments to pass further legislation to fill the gaps.

Indeed, the UK strengthened its legislation in February 2019, including creating a new ‘designated area’ offence for entering part of a country deemed a terrorist hotspot, with a maximum prison sentence of ten years. But some measures will inevitably affect the freedoms of all citizens and there is a difficult balance to be struck between security and freedom in times of terrorism. As Anderson suggests, more solutions at the international level are also required: ‘There could be sense in an internationally coordinated evidence-gathering exercise, centred on former ISIS strongholds, to produce evidence for trials in the countries of origin of those who travelled to join a terrorist group.’

Access (to justice) denied

Although we may never know the extent of Begum’s terrorist-related activities in Syria, suspicions or fears remain about the level of threat she may pose. However, as Geoffrey Robertson QC, a former UN judge, told the BBC, ‘it’s surely for a judge to decide whether she deserves mercy or sympathy, not for a politician’. In Iraq, some former ISIS wives were sentenced to death following ten-minute hearings with no representation. However, as much as the public may detest Begum for throwing her lot in with ISIS, should a country governed by the rule of law expose a de facto stateless British-born teenager to such a risk?

Facing a 28-day deadline to appeal her loss of citzenship, Begum’s lawyer, Tasnime Akunjee, rushed to Syria only to be denied access to the refugee camp where she is being held.

After being prevented from seeing his client, Akunjee said: ‘She can’t get legal advice and I have been and tried but got detained for my efforts. It can’t be that this is in any way just.’

In the meantime, Begum’s three-week-old baby, who remained a British citizen, died in the harsh conditions of the refugee camp. Begum has already accepted she may be sent to prison if she returns to the UK, but that is a better option than a stateless existence in a war zone in which her three children have all died. It is also a better option for a country founded on the rule of law.

Anne McMillan is a freelance writer. She can be contacted at mcmillan.ae@gmail.com