The U.S. may have its reasons for urging Canada to repatriate ISIS fighters from the Middle East, but experts say Ottawa is under no clear legal obligation to bring foreign fighters back.
On Monday, the U.S. State Department issued a plea to countries to repatriate and prosecute their citizens who fought for ISIS and are now being held by the Syrian Democratic Forces (SDF), a U.S.-backed alliance dominated by the Kurdish YPG militia.
WATCH: U.S. urging allies to bring home foreign ISIS fighters
But Public Safety Minister Ralph Goodale said Tuesday that Canada would not prioritize going into a “dangerous and dysfunctional part of the world” and put diplomatic officials at risk to retrieve Canadians who willfully engaged with terrorist organizations.
Four Canadian fighters are believed to be in SDF custody, along with three women and seven children, according to Global News investigations.
One of the fighters, former Mississauga resident Muhammad Ali, spoke to Global News reporter Stewart Bell in an exclusive interview carried out in a makeshift SDF prison in late 2018.
Ali, who went by the nom-de-guerre Abu Turaab al-Kanadi (Abu Turaab the Canadian) said he was disenchanted with ISIS and wanted to return to Canada with his Afghan-Canadian wife and their two Syrian-born children. He claimed he no longer poses any security threat.
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Global News also spoke to two Canadian women who were married to Lebanese and German ISIS fighters. Both said they wanted to return to Canada.
Kurdish authorities want Ottawa to take back the Canadian fighters and families. They say the Canadian government showed initial interest in bringing their citizens home, but abruptly stopped the repatriation process without explanation.
Kurdish forces were grappling with the problem of what to do with the detained Canadians long before U.S. President Donald Trump ordered the withdrawal of all 2,000 U.S. troops from Syria in December.
Canadian terrorism researcher Amarnath Amarasingam says the U.S. State Department’s call for fighter repatriations is likely due to the U.S. wanting to ensure that Western-origin extremists aren’t left to their own devices in Syria following the troop withdrawal.
WATCH: Canadian ISIS fighter captured in northern Syria says he wants to return to Canada
“The U.S. statement is likely a pre-emptive attempt to make sure that when and if the Americans leave, that thousands of foreigners are not left in some weird limbo in Syria, where they are either handed over to the Assad regime or even manage to somehow be set free,” said Amarasingam, who interviewed Ali and other Canadian ISIS figures in Syria alongside Global News.
“Having them in a contained place in YPG custody is one thing, but not knowing where thousands of fighters are poses a real security risk.”
Indeed, in December, the Syrian Observatory for Human Rights monitoring group said that senior members of the Kurdish-led SDF had discussed the possible release of some 1,100 ISIS fighters and over 2,000 family members of alleged terrorists.
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The discussions were reportedly driven by the fact that few countries had expressed readiness to repatriate their citizens, posing a dilemma for the SDF in the wake of U.S. plans to withdraw from Syria.
An SDF official denied that there had been any talk of releasing ISIS prisoners, but a Western official from the U.S.-led coalition in Syria contradicted him and said that such discussions had in fact taken place, the New York Times reported.
Amarasingam says any mission to repatriate Canadian ISIS fighters would be challenging because the four Canadian fighters known to be in SDF custody in Syria — and their families — would have to be flown out of Iraqi Kurdistan, with there being no other viable port of departure in the region.
“As the Syrian and Iraqi Kurds don’t particularly like each other, other countries will have to mediate this whole transaction.”
He added that the Canadian government “is under no obligation to launch some kind of Jason Bourne operation to go get them.”
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Chantal Desloges, founder of Toronto-based immigration law firm Desloges Law Group, agrees.
“If they are legally Canadian citizens, they do have an absolute right of entry — if they make it to the Canadian border, they have to be admitted to Canada,” Desloges told Global News.
But, she adds, “the obligation of Canada to allow entry of a citizen is totally different than an obligation to go out of our way to repatriate them.”
Legal obligations aside, Amarnath says any Canadian decision on repatriating fighters will likely be influenced by a combination of allied countries’ actions and domestic political considerations.
Last week, France’s interior minister said a group of French jihadi fighters had returned home, and that more would follow. Britain has so far refused to repatriate citizens who fought with ISIS, while other European countries have remained largely silent on the matter.
“If Canada sees that other countries are bringing their fighters back, then I think Canada could indeed move to bring ours back,” Amarasingam said. “It would ease the political impact as the government could realistically say that all Western countries are bringing their fighters back, not just us.
“Going into election season, being able to make this argument could be quite important.”
WATCH: The political implications of repatriating Canadian ISIS fighters
France’s announcement came just over a month after the UN special rapporteur on extrajudicial and arbitrary executions called on Western countries to repatriate fighters.
Agnes Callamard said one of the arguments for repatriating fighters was to protect them from facing the death penalty if tried in countries like Iraq or Syria.
But Desloges says it’s not that cut and dried.
“Canada has an obligation not to act so as to participate in the death penalty, for example not to extradite someone to face the death penalty,” Desloges said. “But I don’t think that obligation extends so far as to require Canada to proactively intervene in a foreign matter involving a Canadian.”
Ultimately, whether Canada is legally obliged to repatriate fighters rests on whether the Canadian government or intelligence services can be proven to have been involved in the detention of Canadian ISIS fighters by Kurdish forces, Desloges said.
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Samuel Plett, immigration lawyer and partner at Desloges Law Group, says it comes down to whether Canada can be tied to operations to detain fighters, or to violations of their Charter rights.
He points to the case of former child soldier Omar Khadr, in which the Supreme Court of Canada found that the Canadian government had actively participated in Khadr’s detention and interrogation at Guantanamo Bay.
The court found that Khadr’s request to be repatriated to Canada was “sufficiently connected” to the breach of his Charter rights.
Khadr was eventually repatriated and paid a $10.5-million settlement, with the federal government apologizing for any role Canadian officials may have played in his mistreatment while in U.S. military custody.
Plett and Desloges said that Canada’s past involvement in assisting the Kurdish Regional Government in Iraqi Kurdistan could conceivably be presented as a legal argument for Ottawa having to repatriate fighters — but it’s an argument that would be flimsy at best.
Both lawyers agreed that connections between Canada and Kurdish authorities “would be much more tenuous than in the Khadr case.”
Plett says there would need to be evidence of Canadian involvement in the identification, capture, detention and interrogation of fighters for there even to be an arguable case for a court to consider.
Amarasingam says that as far as he knows, Canada was not involved in any way in the detention of fighters by the YPG.
He says Ali told him and Global News’ Stewart Bell that they were the first Canadians he had met, and that Canadian officials hadn’t visited him or even spoken with him on the phone.
WATCH: Canadian ISIS fighter captured in northern Syria says he wants to return to Canada
Amarasingam says that while he understands why Canadians might be opposed to repatriating fighters and have them tried in Canadian courts while their rights are respected, it’s a reality that Canada should be prepared to confront.
“It would be great from a national security standpoint to not have this problem. But, we do,” Amarasingam said. “It’s not so much a question of what Canada would gain, but more so a question of our responsibilities to our citizens, even ones that make life choices that we find reprehensible.
“They renounced their Canadian citizenship and joined an organization that gave no individual a second chance. I understand that for most Canadians it seems ridiculous that we should now allow them to reclaim that citizenship and be given a second chance at life,” he added.
“But, we may have little choice but to attempt this in the end.”
— With files from Global News reporter Stewart Bell and the Associated Press