Introduction
The phenomenon of Foreign Terrorist Fighters (FTFs) became a significant part of the international discourse in 2012, with the inflow of foreign fighters in Iraq and Syria to join the Islamic State of Iraq and Syria “ISIS” (also known as Islamic State of Iraq and Levant, or Daesh). In response to the threat posed by FTFs, Security Council Resolution 2178 was passed under binding Chapter VII powers, which urged member states to “ensure that their domestic laws and regulations establish serious criminal offences sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense”.[1] The Resolution defined FTFs as “individuals who travel to a State other than their State of residence or nationality for the purpose of the perpetration, planning or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection with armed conflict”.[2] Subsequent in time, UNSC Resolution 2396 (2017) was passed that re-affirmed UNSC Resolution 2178 and expressed grave concern over the acute and growing threat posed by FTFs returning or relocating, particularly from conflict zones, to their countries of origin or nationality, or third countries.[3]
The UNSC Resolutions 2178 and 2396 mandate member states to undertake a multitude of measures to counter the global threat posed by FTFs. These include collecting and sharing information regarding FTFs, strengthening border controls, enacting effective investigation techniques and prosecutorial practices, and enforcing legal and policy frameworks for the prosecution (where appropriate), rehabilitation, and reintegration of FTFs and their family members on an individual case-by-case basis. In light of the foregoing, Pakistan has an obligation to preclude FTFs from using Pakistan as a transit country, and also investigate and prosecute not only returning FTFs of Pakistani origin or nationality, but also those apprehended within Pakistan.
Border Controls
Weak border controls between Afghanistan and Pakistan are a significant contributing factor. In July 2020, a Security Council report stated that the total number of Pakistani FTFs in Afghanistan, posing a threat to both states, is between 6000 and 6500.[4] In light of continual border threats faced by the country, Pakistan initiated border fencing work on its shared borders with Afghanistan and Iraq. It was revealed towards the end of February 2021 that the fencing work would be completed in June or July 2021.[5] This border fencing may play an effective role in curbing the movement of terrorists, if supplemented with other security measures, such as varying border patrol times, determining the usual route and timing of travel by FTFs, and timely sharing of information amongst law enforcement and intelligence agencies.[6]
Legislative Framework
There is no legislation in Pakistan that directly pertains to FTFs; however, Pakistan has a comprehensive anti-terrorism framework (Anti-Terrorism Act 1997 “ATA”) which can be utilized for the purpose of investigating and prosecuting FTFs, especially those who are apprehended within Pakistan and are suspected of having committed terrorism, including the use or threat of action to coerce and intimidate or overawe a foreign government or population or an international organization.[7] The Anti-terrorism (Second Amendment) Act 2020 also criminalized the funding or facilitation of any terrorist act or terrorist-related activities.[8] These provisions may be used to prosecute those FTFs who are facilitating or funding terrorist activities in other states while operating in Pakistan.
There are two main hindrances to the effective applicability of ATA in the context of FTFs. First, the provisions of ATA are not easily applicable to extra-territorial terrorism offences. This limitation is incompatible with the essence of the international regime against FTFs, as FTFs of Pakistani nationality committing terrorism offences in foreign jurisdictions cannot be tried under the current legal framework in the country without a significant reinterpretation of the law. Secondly, the provisions mentioned above were added to the ATA through amendments in 2013[9] and 2020. The contemporary addition of these provisions may raise issues relating to the retrospective applicability of law, as these provisions cannot be used to prosecute offences committed prior to their enactment.
The Pakistan Penal Code 1860 (PPC) may prove to be an essential weapon in the arsenal of prosecutors when dealing with FTFs. In addition to their applicability within Pakistan, the provisions of PPC also apply to extra-territorial offences committed by any citizen of Pakistan or any person in the service of Pakistan.[10] The PPC penalizes the acts of waging, attempting, or abetting war against any Power in alliance with Pakistan,[11] and committing or making preparations to commit depredation on territories of Power at peace with Pakistan.[12] Prosecutors in Pakistan may charge FTFs with these offences, but the punishment for these offences is not commensurate with the crimes committed by FTFs. The maximum imprisonment allowed under the aforementioned provisions is seven years, which is in stark contrast with the harsh punishments laid under the ATA for terrorism offences.
Investigation and Prosecution of FTFs
Difficulties inherent in the collection of evidence from other jurisdictions, especially conflict-ridden areas, often thwart criminal investigations into the offences committed by FTFs. Authorities in Pakistan can only successfully prosecute FTFs if they have sufficient evidence regarding the crimes committed by them. In this regard, the United Nations established two entities, IMMM[13] and UNITAD,[14] for the collection of evidence for crimes committed in Iraq and Syria, by Da’esh/ISIS. However, the role of these entities has been somewhat controversial, as they are UN-led organizations, and not state actors.[15] The role of UNITAD has also been challenged due to its inability to meet the requirements of “reliability and transparency,” specifically in relation to witness testimonies.[16] Moreover, as the activities of FTFs are not restricted to Iraq and Syria, the limited mandate of IMMM and UNITAD creates further hindrances that highlight the significance of inter-state cooperation for collection of admissible evidence against FTFs while adhering to the principles of fair trial and due process.
Pakistan has also enacted the Mutual Legal Assistance (Criminal Matters) Act in 2020, which can be instrumental in “rendering” and “soliciting” mutual legal assistance between Pakistan and other states on a reciprocal basis. Under the Act, Pakistan can initiate requests regarding information about the location and identification of witnesses, suspects, perpetrators and offenders, and relevant evidence, documents, or other articles.[17] The MLA mechanism may bring fruitful results when cooperating with countries with a robust law enforcement framework; however, countries with a tumultuous politico-legal climate may not be able to lend efficacious assistance. The current Syrian dilemma makes this apparent as due to the complicated political situation in the country, the modes of cooperation and information exchange remain vague.[18] The law and order situation in Afghanistan is also not conducive to the collection of material evidence regarding the activities of FTFs in the country.
In the absence of cogent evidence from foreign zones, prosecutorial capabilities are rendered limited.[19] In 2020, Finland’s Court of Appeal dismissed all charges against two Iraqi men alleged to have been involved in the “Camp Speicher” massacre of June 2014, on account of the challenges resulting from the anonymity of witnesses.[20] In such scenarios, judges and prosecutors have to rely on other forms of evidence such as travel records, or testimonies from the friends or family members of FTFs, thus shifting the focus from terrorism-related charges to “preparatory terrorism” offences instead.[21] In the latter offences, proving terrorism-related intent of FTFs is a massive challenge faced by prosecutors. Many individuals claim that they are travelling to provide humanitarian aid in the destination countries.[22] Moreover, the diffused structure of terrorist networks makes it hard to establish a link between such networks and any individual planning to travel in their support.[23] Many individuals also travel to conflict zones without being part of any terrorist network.[24] In this regard, the legislative framework of United States may be studied, as under the US law, if a person supports an organization that has been publicly designated a terrorist group, intent can be inferred.[25]
Conclusion
The current legal framework in Pakistan is not well-equipped to deal with the growing threat of FTFs. The growing presence of IS Khorasan (IS-K), the most visceral off-shoot of ISIS in Afghanistan, further puts the security interests of Pakistan at peril as the group constitutes a mixture of members of former insurgent groups, not only in Afghanistan, but in Pakistan as well.[26] There is a need to introduce a robust legal framework against FTFs, while catering to the dilemma of effectively prosecuting FTFs for past crimes under the existing legal regime. Aside from the legislative issues, collection of admissible, material evidence from foreign war zones is another roadblock in successfully prosecuting FTFs. A comprehensive discourse with relevant international actors is necessary to enable Pakistan to develop a legal framework against FTFs, which is more suited to the country’s unique historical, geographical and political needs.
References
[1] United Nations Security Council Resolution 2178 (2014).
[2] Ibid.
[3] United Nations Security Council Resolution 2396 (2017).
[4] United Nations Security Council ‘Twenty-sixth report of the Analytical Support and Sanctions Monitoring Team submitted pursuant to resolution 2368 (2017) concerning ISIL (Da’esh), Al-Qaida and associated individuals and entities’ (2020) https://undocs.org/S/2020/717 accessed 22 June 2021.
[5] Ali Raza Rind and Behram Baloch, ‘Fencing to boost border security: interior minister’ (Dawn, 21 February 2021) https://www.dawn.com/news/1608500 accessed 20 June 2021.
[6] Global Counterterrorism Forum, ‘The Hague –Marrakech Memorandum on Good Practices fora More Effective Response to the FTF Phenomenon’ (14 September 2019) 7.
[7] Anti-Terrorism Act 1997, section 6(b).
[8] Anti-terrorism (Second Amendment) Act 2020, section 11J:
“(3) A person commits an offence if he knowingly or willfully pays for or provides money or other property or facilitate in any manner the travel of a person anywhere for the purpose of perpetrating, participating in, assisting or preparing for a terrorist act or for the purpose of providing or receiving training for terrorist related activities.
(4) The provisions of sub-section (2) shall also apply to-
(a) organizations owned or controlled, directly or indirectly, by proscribed organizations or proscribed persons; and
(b) persons or organizations acting on behalf of, or at the direction of, proscribed organizations or proscribed persons.”
[9] Anti-terrorism (Amendment) Act, 2013
[10] Pakistan Penal Code 1860, section 4.
[11] Ibid, section 125.
[12] Ibid, section 126.
[13] International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011.
[14] United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL.
[15] Ardian Shajkovci and Allison McDowell-Smith, ‘The Prosecution Challenges of Travelers to the Islamic State’ (IPI Global Observatory, 14 June 2021) https://theglobalobservatory.org/2021/06/the-prosecution-challenges-of-travelers-to-the-islamic-state/ accessed 17 June 2021.
[16] Ibid.
[17] Mutual Legal Assistance (Criminal Matters) Act 2020, section 7.
[18] Shajkovci and McDowell-Smith (n 17).
[19] Ibid.
[20] Ibid.
[21] Ibid.
[22] United Nations Security Council, ‘Bringing terrorists to justice: challenges in prosecutions related to foreign terrorist fighters’ S/2015/123 Annex (February 2015) ¶15.
[23] Ibid.
[24] Ibid.
[25] Ibid ¶16.
[26] Kabir Taneja, ‘IS Khorasan, the US–Taliban Deal, and the Future of South Asian Security’ (Observer Research Foundation, 2020) https://www.orfonline.org/wpcontent/uploads/2020/12/ORF_OccasionalPaper_289_ISKhorasan.pdf accessed 25 June 2020.
