Analysis: the return of foreign fighters to Europe raises legal, security, social and moral issues 

Over 5,000 Europeans are estimated to have left their homes and gone to Iraq and Syria to fight for the Islamic State (IS), according to an EU’s Radicalisation Awareness Network (RAN) report. But that figure could be much higher as authorities do not have exact figures for how many people joined IS and fought for the terrorist organisation.

Now that the so-called "Caliphate" has crumbled and IS has lost all the territory previously under its control, thousands of fighters, including those of foreign origin, have surrendered to US-backed Kurdish-led forces. The foreign fighters and their families are asking their respective governments to be allowed to return home, some pleading their innocence and insisting they were tricked into joining IS. But what should be done about them? Should their pleas be heard and return facilitated?

A look at the history of European foreign fighters reveals some were already on the radar of authorities, often for having criminal records or extremist views, for a long time before managing to slip from the net, and travelling to Syria via Turkey to join IS. One example is Alexandr Ruzmatovich Bekmirzaev, a naturalised Irish citizen originally from Belarus, who was put on a watchlist and monitored by the members of the Gardaí’s Special Detective Unit before he managed to move to IS-controlled territory in 2013. In a recent interview with AFP, he claimed to have done nothing wrong and expressed disillusionment towards IS and its leader Abu Bakr Al Baghdadi. "I want to go back to my country. I hope they won't abandon me," Bekmirzaev told the reporter.

From RTÉ Radio 1's Drivetime, barrister David Leonard discusses how Ireland would deal with a citizen looking to return from the Islamic State

While many foreign fighters died on the battlefield, some managed to return to their home countries, often claiming to be disillusioned from what they saw in the "Islamic State". According to Gilles de Kerchove, European Union’s top counterterrorism official, as many as 1,500 have returned to Europe, including many women and children.

"The thought that these foreign fighters who have participated in this fight now for over two years will quietly leave Syria and return to their jobs as shopkeepers in Paris, in Brussels, in Copenhagen, is ludicrous," vice chairman of the US Joint Chiefs of Staff General Selva said. "That’s a very compelling problem."

So what should European governments do to make sure suspected returning IS foreign fighters do not pose a security threat? One solution is to make sure they never come back home and die fighting in Iraq and Syria. However, hundreds of IS foreign fighters either laid down their weapons or got captured alive. They survived the battlefield and now face legal obstacles in their bid to get back home.

From RTÉ One News, US president Donald Trump calls on Europe to take back Islamic State fighters

US President Donald Trump recently urged European allies to take back over 800 captured IS foreign fighters and put them on trial. He warned that refusal to do so would have consequences: "the alternative is not a good one in that we will be forced to release them". This prompted NATO Secretary General Jens Stoltenberg to describe the return of potential terrorists back into domestic society as "a challenge for all of us."

But despite urging Europeans to take back their suspected jihadists, Trump himself refused the return of an American woman who joined IS and married a foreign fighter. This prompted US Secretary of State Mike Pompeo to issue a statement claiming that "Hoda Muthana was not a U.S. citizen and would not be allowed back in."

A number of Western governments, including the UK government, passed laws in the past to prevent IS fighters from returning home. These measures include stripping British citizens with dual nationality of their British citizenship in a bid to keep them out of the country. Then Home Secretary and current prime minister Theresa May warned that "under international law no country is allowed to make its citizens stateless and most of those British fighters are likely to return to the UK in the end."

From RTÉ Radio 1's Today with Sean O'Rourke, an interview with Tasnime Akunjee, lawyer representing Shamima Begum's family, about her attempt to get back to the UK

However, the British government revoked the citizenship of Shamima Begum, recently arrested in Syria, effectively rendering her stateless. Born to parents from Bangladesh in London, Begum joined IS in 2015 at the age of 15 and gave birth to a baby last week. Despite showing no remorse for her actions, she pleaded safe return to her home country in a series of interviews given to British media.

So what are the implications of the return of the suspected IS foreign fighters? Will it lead to heightened security fears and threats of more terrorist attacks?

If the returned foreign fighter voluntarily contacts the authorities, according to a report published by RAN, arrest and interrogation usually takes place. Authorities insist that further steps are then taken within the criminal justice setting based on the evidence available.

From RTÉ Radio 1's Drivetime. Michael O'Toole, crime Correspondent with the Irish Star, and Rukmini Callimachi, New York Times reporter, discuss an Irish passport holder who has been captured by Kurdish-led forces fighting Islamic State 

But what happens when the returned foreign fighter is arrested by the authorities and prosecuted on charges of fighting for a terrorist organisation? According to Shiraz Maher, the director of the International Centre for the Study of Radicalisation (ICSR) at King’s College London, much of the evidence collected regarding individuals’ battlefield exploits would not be admissible in court, either falling short on evidential grounds or because of the manner in which it was obtained.

"We do not, for example, use intercept evidence in UK courts," Maher said, while adding "the result is that some repatriated British fighters could simply walk free once they return. Clearly, that is a situation no one wants. Another option is that they could be convicted of lesser crimes – but this poses problems of its own."

Keeping a close watch on groups of individuals, let alone just one person, long-term, will require a lot of resources

Maarten van de Donk, a member of RAN, accedes that it is difficult to prove in court that returned foreign fighters committed any crimes. "Of course, there are people in the news who say they only went for "good" reasons and were never involved in conflict," he said citing recent media reports about IS foreign fighters who claimed they went to IS-controlled territories on humanitarian grounds and were not involved in fighting and other criminal activities. "There is a black box there — even the people who claim they didn’t do anything".

Supporters of rehabilitation programmes for returning fighters insist close surveillance and prosecution is essential, but concede that even those who will admit fighting for IS and accept prison sentences will eventually be released. Keeping a close watch on groups of individuals, let alone just one person, long-term, will require a lot of resources. The risk of returning foreign fighters committing atrocities cannot be ruled out.

The return of suspected IS foreign fighters poses several dilemmas – including legal, security, social and moral – and just demonstrates the minefield the issue has turned into. Governments face the difficult decision of who to let in, put under surveillance/prosecute and who to effectively ignore. The defeat of extremist ideology propagated by a terrorist group like IS was long predicted by many security analysts. But what was not followed up by western governments were ways to deal with foreign fighters, including repatriation to their homeland and prosecution, if they were to be captured alive on foreign or home soil. While bearing in mind that there are neither easy nor quick solutions, now is the time to address the tricky situation head-on.

The views expressed here are those of the author and do not represent or reflect the views of RTÉ