The RCMP is looking into whether war crimes laws can be used to prosecute Canadians detained in Syria over their alleged involvement in the so-called Islamic State, Global News has learned.
National security investigators are exploring not only whether terrorism charges are warranted, but also whether the Crimes Against Humanity and War Crimes Act could apply, officials said.
While war crimes-related prosecutions are extremely rare in Canada, with 32 Canadians detained in Syria by U.S.-backed forces following the collapse of ISIS, the possibility of charges is being examined.
The investigations are part of the RCMP’s preparations for the possible return to Canada of captured ISIS members.
Asked about the issue Thursday, Prime Minister Justin Trudeau said he had confidence in the RCMP but added that one of the challenges was “making the translation from intelligence gathering activities to presenting evidence of crimes.”
“That is something that the RCMP, our intelligence agencies and indeed agencies around the world are struggling with and working on very hard,” he said from Juno Beach.
None of the Canadians held in Syria have been charged under Canada’s anti-terrorism laws, which make it illegal to knowingly participate in the activity of a terrorist group. The maximum sentence is 10 years.
By contrast, war crimes-related laws outlaw participation in genocide, crimes against humanity or war crimes committed anywhere in the world. A conviction carries a possible life sentence.
Crimes against humanity include murder, enslavement, imprisonment, torture, sexual violence, persecution “or any other inhumane act” against a civilian population or identifiable group.
ISIS members openly engaged in all those crimes as they imposed their version of Islamic law on the local populations of Syria and northern Iraq, particularly against minority Yazidis.
WATCH: U.S. urging allies to bring home foreign ISIS fighters
But a national security law expert said prosecuting war crimes and crimes against humanity is demanding and it might be simpler to charge the Canadians under anti-terrorism laws.
Leah West said prosecutors would have to prove not only the culpability of the accused but also the context of the offence, demonstrating that it was done as part of a crime against humanity.
“So, I don’t see why you would go to that extent to prove these crimes, rather than charging the crime we have on the books to deal with exactly what they’ve done, which is go overseas to support a terrorist group.”
A former Department of Justice lawyer and now a doctoral candidate at the University of Toronto Faculty of Law, West said crimes against humanity laws might apply to some of the activities of the Canadians.
But even if they went to Syria to marry ISIS fighters and bear children for the so-called caliphate, that could still warrant a terrorism charge, she said.
“Prosecutors tend to want to walk the easiest path to proving criminal liability. Charging Canadians who supported ISIS overseas under the War Crimes and Crimes Against Humanity Act rather than terrorism offences under the Criminal Code isn’t the easier path.”
WATCH: Jeff Semple spoke on the Morning Show about an ISIS mass burial site in Syria found by iBrabo researchers through historical satellite imagery, allegedly linked to a suspected Canadian fighter who is currently in custody of Kurdish-led forces.
Six Canadian men, 9 women and 17 children are among the hundreds of foreigners held in camps and makeshift prisons in northeast Syria after being taken into custody during the fall of ISIS.
The U.S. has been encouraging countries to repatriate and prosecute their citizens. The Liberal government has said it can’t because it would be too dangerous to take them out through Iraq or Turkey.
The RCMP, however, has begun working on the assumption that the Canadians will eventually come back and has been studying possible travel routes for their return as well as building criminal cases against them.
War crimes laws have already been used in Germany, where a woman who joined ISIS was charged with crimes against humanity over the death of a five-year-old Yazidi slave she and her husband bought in Mosul.
WATCH: Goodale says government is collecting evidence in case of captured Canadian ISIS fighter
Canada has a mixed record with such prosecutions.
In 2009, a Quebec court convicted Désiré Munyaneza of seven counts of war crimes, crimes against humanity and genocide over atrocities in Rwanda in 1994. He was sentenced to life.
Jacques Mungwarere, a refugee claimant arrested in Windsor in 2009, was also prosecuted for genocide for his alleged role in Rwanda but an Ontario judge found him not guilty in 2013.
The only known case in which Canada has used war crimes law in relation to ISIS involved a Lebanese mechanic who repaired vehicles for ISIS and who is now living in British Columbia.
Rather than putting him on trial, Canadian authorities intervened in his refugee case and are attempting to deport him. He was found complicit in crimes against humanity but is appealing.
On Monday, the Swedish government hosted a meeting of officials from Germany, France, the United Kingdom, and other European governments to discuss establishing a tribunal to prosecute ISIS members.
“Administering justice in the region, by means of a tribunal or some other legal mechanism, could complement national legal proceedings and contribute to accountability for the crimes committed during the conflict in Syria and Iraq,” Sweden said in a statement.
In the latest CTC Sentinel, a publication of the Combating Terrorism Centre at West Point, Brian Michael Jenkins argued that “bluster and muddle” was not a viable way of dealing with the ISIS detainees.
“This is not an option, but policy by default,” the veteran terrorism scholar wrote. “It describes the current situation. Warnings and threats prompt concern, but international co-ordination remains too complicated.”