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Wednesday 9 October 2019

National security

Leaving the battlefield

The return of jihadi fighters from Syria is proving to be a security headache and a morality test for Britain

By Robert Verkaik

Sufian Mostafa Kamel answered the call of jihad to defend the people of Syria against the Assad regime more than six years ago. Earlier this year, he left the battlefield and slipped into Turkey, where he has launched a bid to return home, even though he is no longer a British citizen.

Shamima Begum, who left east London at the age of 15 to become a bride of the Islamic State, remains in the Syrian camp where her baby died days after her case turned into a national argument when she was rendered effectively stateless by the British government.

In at least two other cases, fighters have slipped back into Britain after travelling to join the Islamic State and leaving again when they apparently decided within a couple of weeks that life in the caliphate was not for them. Their departure and return from waging jihad happened so rapidly the security services had no idea they had ever even left the UK for Syria.

A Bosnian suspected of being an Islamic State fighter is searched by members of the Kurdish-led Syrian Democratic Forces, March 2019

Another case involves a man whose identity and whereabouts the security services were very well aware of. This man is alleged to have posed a security threat through his links to terror groups in the Middle East. The UK government was so concerned about the possible risk to national security that the Home Secretary at the time signed a deprivation of citizenship order against him while he was abroad. But the man’s response made a mockery of the policy as he simply boarded a plane and flew back to Britain where he immediately launched legal proceedings for the restoration of his citizenship.

These are just some of the fragments that make up a chaotic picture of the British government’s response to the Syrian conflict. It is a confusing tableau about to get even more complex as surviving Western fighters try to return home, posing the question: what should Britain do to protect itself?

Lawyers, human rights organisations and security experts are raising serious concerns about whether the counter-terrorism policy is helping to keep the UK safe and secure or exposing the country and its people to even greater long-term dangers.

Is it better to keep anyone who is a potential threat outside of the country, or does the act of stripping individuals of their citizenship risk the safety of British citizens by fostering greater grievances? Have politicians been making decisions simply because they fear outraged headlines? And how can it be the right moral choice to outsource our terrorism problem to other countries – the United States is not alone in pressing the UK to deal with its own.

Whether or not the UK government approach is right, or fair, a succession of imminent court cases may lead to its unravelling.

Fighters who know Sufian Mostafa Kamel say he has a certain aura, a calmness in battle, that commands loyalty and respect among the other mujahideen.

Back in Britain, Sufian Kamel is better known as the younger son of Abu Hamza al-Masri, the former imam of Finsbury Park Mosque who is serving a life sentence in an American supermax prison for a string of terrorism offences.

In the coming weeks, the loyalty of Kamel’s brother fighters is to be strained to breaking point as a multitude of bands of rebels and jihadi groups prepare to defend themselves from the final onslaught expected to be unleashed against Idlib by the forces of Bashir Al Assad, supported by Russia and Iran.

Smoke rising behind destroyed vehicles and damaged buildings in the village of Baghouz, March 2019

Now Donald Trump is threatening to destabilise the region further by opening the way for Turkish troops to enter northern Syria and take on the Kurdish forces who were key allies of the US in the fight against the Islamic State but are regarded as terrorists by President Erdogan.

Scores of British Muslims who are trapped in Idlib and other parts of northern Syria and Turkey present the British security services with a new problem. There are as many as 150 UK fighters holding out in Syria against Assad and perhaps even more lying low in Turkey or being held captive by the Turkish and Kurdish authorities.

What should Britain do as they start to arrive home? Many of them are not the death-cult terrorists who signed up to the murderous regime of the Islamic State. They haven’t used social media to threaten terrorist attacks on British soil. They defy neat categorisation because they represent just about every iteration of jihad. Some of them are part of rebel units with a very loose association to Islam while a few aren’t even religious at all.

Kamel, although a devout Muslim, simply refers to himself as a “rebel field commander” whose only interest is “fighting against the Assad regime”.

He arrived in Syria in 2013, the year after his father was extradited to America to stand trial for terrorism. While IS’s barbaric caliphate grabbed the headlines and the attention of Britain’s security services, Kamel and the other foreign fighters based in northern Syria were quietly fighting Assad’s government forces.

But then in 2017, the UK was subject to three terror attacks, two in London and one at the Manchester Arena, where 23 people were killed, including a number of children, and 116 were injured.

In response to a wave of public outrage, Amber Rudd, the Home Secretary at the time, signed off the greatest ever number of counter-terrorism orders against British subjects living abroad. Among the 104 to have their citizenship revoked was Sufian Mostafa Kamel. A letter written by the Home Office was sent to his last known address in Aldbourne Road in Hammersmith. It didn’t matter that he might never read it – under the legislation that was enough to be deemed as service.

It was a knee-jerk reaction to a problem that had been brewing for a long time.

Kamel, who has been careful not to say anything on his Youtube, Twitter or Instagram channels that could be construed as breaching UK terrorism laws, responded angrily to the order. In an interview with al-Quds, an Arabic newspaper which takes its name for the Arabic name for Jerusalem, he questioned the Home Office decision, insisting he was fighting with a moderate rebel group which is supported with British and American weapons.

Sufian Mostafa Kamel speaking on YouTube

He declared: “Britain is the place where I was born and lived. I have never been a threat to national security in Britain, and will not commit aggression on it.”

He denies fighting with Islamic State of Iraq or with forces loyal to al-Qaeda, although sources say the decision to revoke his passport was ‘not taken lightly’.

But he still regards Britain as his home and has vowed to return to the UK.

Assad shows little sign of being toppled, but the fighting may well come to an end once the Syrian government-led forces have launched a bombing and ground offensive against the defending rebels and jihadis in Idlib.

The UK government has anticipated this and is using exclusion and deprivation orders to counter the threat of returning fighters.

The truth is there are many fighters like Kamel who have already slipped quietly back into Britain. The Home Office estimates that of the 900 who went to Syria to fight, about 400 have returned.

But the routine failure of our immigration and security services to prevent migrants from entering Britain undetected demonstrates how difficult it has become to properly police UK borders.

I have spoken to security sources who say the number of returning jihadis and combatants could be easily double that number. And of this higher figure of 800 returnees, only around 40 have faced any criminal investigation.

Suspected Islamic State fighters wait to be searched by members of the Kurdish-led Syrian Democratic Forces, February 2019

I’ve also been told of other cases – two where British fighters spent a few weeks with Islamic State and were inducted and security-checked by the terror group, before leaving. Neither counter-terrorism police nor the security services have intelligence concerning the movements of either man because they were not aware they had ever left the country.

In a third case, a man with alleged links to terror groups in the Middle East had a deprivation of citizenship order issued against him while he was abroad. But he now fights his case in the UK after simply flying back.

His lawyer, Tayab Ali of ITN solicitors, believes the case shows how ineffective the government’s counter-terrorism policy has become.

Mr Ali says the security measures against him were so lax that he was able to pick up his “cancelled” passport and fly back to the UK.

He says the case highlights a very troubling aspect of the policy. “MI5 and MI6,” says Ali, “are not these super-powerful all-seeing secret agencies. They are at times clunky and don’t have screens on everybody. They can’t possibly cope with all these individuals running around the Middle East. Just because you put someone’s name on a list it doesn’t mean you have dealt with them.”

But he warns: “You are not protecting the UK by removing citizenship from people. What happens to that individual living in Syria? The first thing is that he now has an even greater angst against the UK. He is out of sight and he may be out of the country but he is still expressing the same rhetoric and world theories and by using his perfect English he is able to start recruiting people inside the UK by using social media to radicalise them to join his group. He is a convincing voice because what he claimed the British government would do to him [a freedom fighter who is defending the Syrian people from Assad] has come to pass.”

There is a further serious moral criticism of this policy that goes to the heart of the notion of British justice. All of the problem individuals subject to deprivation orders are British citizens, mostly radicalised in the UK. But the government policy of banishment and exile means the UK is dumping the UK terror problem on foreign countries.

Apart from outsourcing the problem to other states, there is an inherent risk of casting dangerous people adrift who now have an even greater grievance against the West. Security services lose track of terror suspects, and, of course, the policy is potentially discriminatory as it affects more ethnic minority people than white British, who more typically don’t have a second nationality that can be deployed by the government to push them away.

Professor Clive Walker can claim to know more about the history and thinking that underpins Britain’s counter-terrorism response to foreign fighters than anyone else in the country. He has been a special adviser to Independent Reviewer of Terrorism Laws since 2011.

He argues that, since the 7/7 terror attacks on London in 2005, the central questions facing politicians were, “how do we understand the hostility of our neighbours and how do we live with them?”

He says there are “many arguments against the deprivation of citizenship”, but Britain and other Western governments have decided they “would rather deal with the FTFs [foreign terrorist fighters] in theatre than to bring them all home”.

But this too is proving controversial. The United Nations investigations teams, working closely with local and Western security services, have helped put hundreds of terror suspects on trial in Iraq. Some of the suspects are citizens from Western countries who now face the death penalty. In January, 11 French men were transferred from Syria to Baghdad where they were sentenced to death. A German woman faced the same fate until officials in Berlin asserted Germany’s opposition to capital punishment and, after the appeals process, her sentence was commuted to a 20-year jail term.

I have been told by one researcher who has visited the detention centres in Baghdad that at least one detainee accused of fighting for IS has claimed British residency. Although no Western defendants have been executed, it is worth noting that Iraq has carried out 900 death penalties since 2005.

By denying British residents national protection, the UK government can overcome the potential diplomatic embarrassment of the execution of a British citizen.

Women and children evacuated from the Islamic State’s embattled holdout of Baghouz arrive at a screening area, March 2019

Walker said: “In due course, they [Western governments] will make concessions to some FTFs and give more assistance to the receiving countries, such as by funding the Iraq Investigation Team. There are also good arguments for local justice for the sake of local victims, but political convenience will prevail whatever the arguments of justice.”

Security Minister Brandon Lewis told me via email: “The threat posed by foreign terrorist fighters is an issue we share with many of our international partners. We continue to work with them to bring to justice those who have carried out horrific crimes in the name of a twisted ideology.”

Defending current policy, he said: “Our primary concern is to protect our citizens and to see those who have committed these sickening crimes face justice in the most appropriate jurisdiction – often in the region where their crimes have been committed.”

The unfairness of the deprivation policy was exposed in the case of Shamima Begum, the 21-year-old woman who lost her British citizenship earlier this year after she told The Times of London’s foreign correspondent Anthony Loyd that she had been married to a Dutch IS fighter while living under the caliphate.

The Government’s response to headlines condemning Begum for choosing to leave Britain for the horrors of IS when she was 15 was to effectively leave her without a country. Shortly after the government turned down her request to return home, her baby died in the Kurdish camp where she is being held.

Sajid Javid, the Home Secretary at the time, brought a storm of protest upon the government by signing the order, which looked like an expedient reaction to tabloid headlines.

Shamima Begum during a television interview

Deprivation orders can only be imposed on individuals who have a claim to a second nationality. Javid argued that because Begum’s parents are from Bangladesh, she was free to take up Bangladeshi nationality. But after the order was imposed the Bangladesh government denied her right to citizenship and made clear that anyone involved with IS will, under Bangladesh law, face the death penalty.

Whitehall sources say that the decision taken by Javid was flawed and “very badly handled”. Had there been an independent reviewer of terrorism laws in office, the Home Secretary might have thought twice. But that post had been left unfilled between October 2018 to May of this year. It was only after the Begum case that a new reviewer was appointed.

Alex Carlile QC, the first independent reviewer (2001 to 2011), said: “It will be appropriate and perfectly acceptable for the Home Secretary to exercise the legal power vested in her to remove nationality where there is an alternative right to reside in another country.”

But he cautioned: “However, some may be a theoretical dual nationality where it is impractical or unrealistic. For example where there is not a fair trial or where there is an Article 8 [family life] type consideration and it would be unfair for that person to claim nationality from another country.”

He suggests that in cases where someone came to the UK aged two, lived here for all that time and then at 18 left the country to become a freedom fighter, “the courts might say that person had a legitimate expectation of being treated as a British and subject to British justice”.

There are many returning British fighters who fall into that category.

The Begum case was quickly followed by that of Jack Letts, the Oxfordshire man who joined IS in 2014. After Javid’s decision to impose a deprivation order on Begum, the Home Secretary had little choice but to follow suit with Letts. There was already mounting criticism of the passport policy for the discriminatory way it targeted dual-nation, ethnic-minority Britons. When it emerged that Letts, a white Briton, may be able to avail himself of Canadian citizenship his fate was sealed.

Jack Letts, who joined IS in 2014

Tayab Ali represented Jack Letts’ parents when they found themselves prosecuted under anti-terrorism laws for helping their son while he was in Syria. Ali said that deprivation orders are the wrong measures for dealing with the problem of British nationals accused of links to terrorism abroad. “The truth is there are plenty of ways of bringing prosecutions or managing people when they return, by gathering evidence in safe areas of Syria and using existing powers and laws to put people on trial in this country. By exporting our problem we are not dealing with it.”

But the government’s policy may already be coming apart. Begum, represented by London lawyers Birnberg Peirce, is challenging her deprivation.

More significantly, two cases concerning two other Britons, who have lost their right to British nationality because they have been deemed to be threats to national security and may have a claim to Bangladeshi citizenship, are to be heard in the Court of Appeal this month.

The two men were among the 104 whom Amber Rudd acted against in 2017, six times the number of deprivation orders from the year before. One man was in Turkey when the deprivation order was imposed on him because he was assessed to be “aligned with a group aligned to al Qaeda”. The other left Britain for a few weeks to visit his wife in Bangladesh who had just given birth to their second child. But the Home Secretary said he had travelled there “for the purpose of international terrorism”.

Last year both men took their cases to the Special Immigration Appeals Commission, where they won. The judges ruled that as they had not sought to retain their Bangladeshi citizenship before they turned 21, it had automatically lapsed. As a result, the decision to deprive them of their UK citizenship had rendered them stateless.

The Home Office has taken the case to the Court of Appeal, hoping the senior court will overrule the decision. The government had previously relied on a diplomatic assurance from Bangladesh that both men could claim Bangladeshi nationality and they would be fairly treated if prosecuted under Bangladesh law.

Their lawyer, Fahad Ansari of law firm Duncan Lewis, says the government’s position was seriously undermined after the Begum case when the Bangladeshi government declared Begum to have no such claim and then threaten her with the death penalty.

“It does appear that the UK government is exercising the power to deprive in an arbitrary manner. Neither Begum nor Letts were assessed to be a sufficiently serious threat between 2015 and 2018 when IS was at its peak and when the government deprived almost 200 people of their citizenship. The decision to therefore deprive them this year with IS completely defeated appears to be motivated more by a desire to please certain sections of the public rather than by concerns over national security.”

Mr Ansari says: “Despite having numerous opportunities to do so, the police did not arrest either of my two clients while they were present in the UK. Yet, within weeks of their departure and days before they were due to return to the UK, they were deprived of their citizenship. If there was insufficient evidence to prosecute them under any of the numerous pieces of anti-terrorism legislation within the CPS armoury, how can it be in accordance with the rule of law for the government to then subject them to the harshest penalty of depriving them of their citizenship which they would not have received even if they had been convicted of terrorism?”

It has been eight years since the Syrian Day of Rage protests ignited one of the world’s most bloody wars, sucking in fighters from all corners of the globe. As it enters its final, chaotic phases, Britain’s battered counter-terrorism policies are about to be tested to breaking point.

Photographs, Getty Images, ITV, Sky News

Further reading

Read Shiraz Maher on the oncoming battle between foreign Muslim fighters, many from Europe, and the Assad forces.

Watch Abu Hamza’s son explain his reason for opposing Assad:

Read how the Church of England judged the ethics of stripping Shamima Begum of her British citizenship.

Read the full judgment in the so-called ‘Beatles’ case.

Watch life in Idlib under siege in this film by Holly Williams of CBS This Morning

Robert Verkaik

Home affairs and law specialist writer with expertise in covering extremism. Author of Jihadi John: The making of a terrorist.