Limiting Foreign Fighting by Canadians: Stop-Gap Legal Measures

Published on the National Security Law blog, December 4, 2014

I have opined here and here about the troubles associated with foreign fighting. I do not limit my concerns about these troubles to fighting with a listed terrorist group. I find persuasive the Australian view, at least as recorded by that country’s independent reviewer of anti-terrorism law. That person reported in 2014 “repeated apprehensions expressed by those seeking to implement the [counter-terrorism] Laws … that the return of trained and desensitized (perhaps radicalized) Australians from foreign conflicts such as Syria was a plain terrorist threat regardless what side, party, faction or group the returning Australian had fought with.”

This is a reasonable position, given that in places like Syria a certain lesson must be that the enemy of my enemy is not necessarily my friend.

Gerrymandering existing law for reasons of expedience and convenience rather than going to Parliament and debating and airing issues that demand both is anti-democratic and liable to all sorts of second order impacts, not least when courts get into the mix.

In an article that has disappeared in the maw of law journal peer review, Ani Mamikon and I advance an argument in favour of a revamped Canadian neutrality law allowing the Canadian executive to assert closer legal control over citizen freelancers of whatever stripe. I hit some of the highlights here.

But we should not assume that the government is now caught between the significant Scylla of trying to use anti-terrorism law as a foreign fighter tool and the rather modest Charybdis of actually legislating in Parliament on the issue.

In Australia, the government has employed not only Australia’s robust neutrality law (now revamped in Australia’s criminal code), but also its international sanctions laws.

While we don’t have an adequate neutrality law, we do have international sanctions law of relatively recent vintage: the Special Economic Measures Act. (We also have the UN Act. That allows us to implement UN Security Council sanctions. But so far UN Security Council resolutions such as 2178 (2014) confine their reach to foreign “terrorist” fighting, whatever that is).

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Back in the day, I spent considerable time contemplating SEMA in the area of business and human rights. Boiled to its essence, there are two issues. First, when can it be triggered? Second, what does it allow the government to do?

Trigger for the SEMA

The SEMA is triggered in two circumstances: first, it may be deployed in response to a “decision, resolution or recommendation of an international organization of states or association of states, of which Canada is a member, that calls on its members to take economic measures against a foreign state”. Second, it may be used unilaterally “where the Governor in Council is of the opinion that a grave breach of international peace and security has occurred that has resulted or is likely to result in a serious international crisis”. In the late 1990s, there was considerable SEMA-geek debate focusing on whether the latter trigger was applicable to the situation in Burma (or Sudan). (That debate fell away when the current government employed SEMA against Burma.)

But whatever the niceties of that archaic issue, no one can doubt that the situation in Syria amounts to “a grave breach of international peace and security” that “has resulted or is likely to result in a serious international crisis”. And lo and behold, we have used SEMA against Syria. But we have limited these sanctions measures to trade, financial and investment relationships.

Could we also use SEMA on foreign fighters? That raises the second issue of SEMA’s scope.

Can SEMA reach foreign fighters?

SEMA is the special economic measures act. So at first blush, it seems inapplicable. But the text of the law speaks of the provision of all sorts of services. Section 4(e) allows the government to bar “(e) the provision or acquisition by any person in Canada or Canadian outside Canada of financial services or any other services to, from or for the benefit of or on the direction or order of that foreign state or any person in that foreign state“.

So the sanctions measure can reach government and non-governmental entities, including (one assumes) insurgencies.

Moreover, the provision of military services is a “service” on any plain meaning, although context is sometimes everything in statutory interpretation. But even with that context, military service is an economic benefit: a volunteer is one soldier you don’t have to pay for. And a fighter provides a fighting service. And more than that, every volunteer bringing their own supplies and cash (to, e.g., by AK-47s in the local bazaar) provides a clear economic benefit.

In keeping with this reasoning, in the Australian sanctions rules for Syria, a “sanctioned service” includes “a military activity” and also “the manufacture, maintenance or use of an export sanctioned good for Syria” (e.g., weapons). (s.5)

In a similar fashion, I think it plausible that the current SEMA regulations on Syria could be amended to add: “it is prohibited for any person in Canada and any Canadian outside Canada to…(j) travel, or attempt to travel to, or remain in Syria for the purpose of providing, using, maintaining, supplying or acquiring a military service or any good that is subject to paragraph (e) of this section” (relating to goods exported Syria).

See also:

Violating a SEMA order carries a penalty of up to 5 years imprisonment.

Caveat: Second Best Option

A couple of caveats. I do not enthusiastically embrace this idea. I do not like crime through regulation, and there is reason to doubt the constitutionality of that approach (a matter raised, but not resolved, in the Libman Hussein case from the last decade). Expect this to be front and centre if charges were ever brought.

I also especially don’t like pounding square pegs into round holes—and national security law is starting to amount to a lot of splintered square pegs. Using SEMA as a tool to deal with foreign fighters would be in that unhappy tradition. Gerrymandering existing law for reasons of expedience and convenience rather than going to Parliament and debating and airing issues that demand both is anti-democratic and liable to all sorts of second order impacts, not least when courts get into the mix.

So first choice: amend the Foreign Enlistment Act and make it a real foreign fighter tool. Last-gasp stop-gap: SEMA. Unpersuasive: “our hands are tied” or “terrorism law is good enough”.

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