The challenge of prosecuting foreign terrorist fighters (FTFs) rose to global prominence in 2012 with the influx of foreigners joining Islamic State/Daesh. In response to the threat posed by FTFs, the UN Security Council Resolution 2178 (2014), under binding Chapter VII powers, placed wide reaching obligations upon member states to curb the threat of FTFs, including disrupting cross-border movements, preventing illicit financial flows, and implementing effective investigation, prosecution and rehabilitation mechanisms. Subsequently, UN Security Council Resolution 2396 (2017) was adopted which widened the scope of the member states’ obligations, and addressed the grave security concerns posed by the return of FTFs on their home and third countries, especially after the decline of the conflict in Syria and Iraq. In Pakistan’s domestic context, the framework to bring FTFs within the mandate of law is in nascent stages. In the absence of a legislative framework which directly deals with the phenomenon of FTFs, varied aspects of the criminal justice system need to be explored to assess how FTFs can be effectively prosecuted in Pakistan. This is essential to not only effectively deal with returning FTFs who are Pakistani citizens, but also to preclude FTFs from using Pakistan as a transit country.
Legal Challenges in the Investigation & Prosecution of FTFs
There are significant challenges involved in the investigation and prosecution of FTFs:
- Collection of admissible evidence proving that a particular individual has the intent of travelling for terrorism related activities;
- Lack of clarity over the applicable legislative framework for charging and prosecuting FTFs.
The current anti-terrorism legislative framework considers the facilitating and funding of travel for the purpose of terrorism-related activities as an offence, however, there is no provision which directly pertains to FTFs who travel for the purpose of terrorism, including curbing their movement, and the prosecution of those who return to Pakistan. Therefore, the laws which can be used to curtail the movement of FTFs and prosecute them need to be explored further.
Even prior to the prosecution stage, difficulties inherent in the collection of evidence from other jurisdictions, especially conflict-ridden areas, thwart investigations into offences committed by FTFs. These hindrances highlight the significance of mutual legal assistance between states, not only for conducting effective investigations, but also for the timely repatriation or extradition of persons of interest to another state. In light of the foregoing, there is an exigent need to explore the different investigation techniques that can be employed in the context of FTFs, and also the legal and regulatory frameworks that can be utilized to effectively control the illicit movement of FTFs. Furthermore, it is imperative to delineate which executive authorities would be involved in cooperation measures with other states, including repatriation of individuals. Detailed and constructive discourse on these pressing issues can bring forth potent solutions, indispensable in enabling Pakistan to meet its international obligations pertaining to the effective prosecution of FTFs.
It is in this context that the Research Society of International Law (RSIL) held an experts’ dialogues with participation from criminal justice actors from all the provinces, as well as academics and legal practitioners who have been involved in the prosecution of FTFs for constructive discourse on the subject using international best practices as a guiding tool. The dialogue was conducted on 28 June 2021 at RSIL premises in Islamabad. This was a closed-door event conducted under Chatham House rules.