Sajid Javid's case against Shamima Begum will fall at the first hurdle
It’s a problem: what to do about the 800 or so ISIS recruits held mainly by Kurdish forces and liable to be returned to their European countries of nationality. Germany says it will take and prosecute them, whilst Britain will do anything – even break international law – to avoid them ever darkening our door. Those who took up arms are plainly guilty of terrorism, crimes against humanity and aiding and abetting genocide of Yazidis and Christians, so leaving them to roam the world is hardly an option. The death penalty is out of bounds in Europe, so where should they serve their long terms of imprisonment?
The Home Secretary, Sajid Javid, made a bad start with the case of Shamima Begum. Incensed by her interview on Sky TV a few hours after giving birth, he decided that it was in the public interest to deprive this teenager, born and bred in Bethnal Green, of her British nationality. As it now appears that she has no other, this renders her stateless, which is contrary to law and likely to be struck down by the courts. And he overlooked her baby, British at the time of his birth and thus entitled to return and to take legal action to force the Government to bring back his mother, rather than to leave her to be captured eventually by Syrian forces whose punishment of hated “ISIS brides” will be a lot more brutal than the sentence she would receive at the Old Bailey.
The preferable alternative would be to arrest Ms Begum at Heathrow and interrogate her for 14 days, obtaining the intelligence that as a society we need to have, in order to explain how a child at 15 could be suddenly brainwashed into barbarity – the identity of those who influenced her and the role of ISIS recruiting videos on Facebook and Google. Then she should be prosecuted for joining a proscribed terrorist organisation (maximum sentence 10 years) whilst social workers or family look after the baby. Any sympathy to be shown to her is a matter for the jury and any mercy is for the judge – not for politicians or newspaper editors. It seems likely that she did no more than serve as a voluntary “comfort woman” looking after her combatant husband and her best mitigation may be that she was (as she put it) a “stupid child” when she was recruited.
Incidentally, the Sky interview relied upon by the Home Secretary would probably be ruled inadmissible at her trial. It was unfair (and unethical) to ask her incriminating questions just after giving birth. In a more appropriate interview with “The Times” some days before, she had welcomed the destruction of ISIS because of the “oppression and corruption” she had witnessed. If that remains her true state of mind she is unlikely to present a danger to the public when released.
The fighters are another matter. Their crimes are manifest, and they deserve little or no mercy. President Trump’s bullying and hypocritical demand that they be sent to Europe otherwise America will release them, can be discounted. They are not in US custody and Mike Pompeo is already refusing to take back American fighters. But prosecuting and punishing them is, nonetheless, the right thing to do even if it means that trials will take place in a number of countries, possibly with different results.
There is an alternative. The International Criminal Court (ICC) has fall-back jurisdiction over crimes against humanity and genocide and could process these miscreants as a “job-lot” in The Hague. ISIS is – hopefully, was – the worst phenomenon of barbarism since the Nazi and just as the judgement at Nuremberg established for history the record of their crimes, so the judgement by the ICC, after investigation and trial, could set out authoratively the origins and crimes progress of this monstrous organisation.
There are some, albeit surmountable, legal difficulties: at present the ICC has jurisdiction over crimes committed in Iraq, but for it to deal with crimes in Syria requires a reference by the Security Council where the “Big 5” permanent members would have to agree. Britain, France and US should be supportive, as should Russia which has joined Syria’s battle with ISIS. China has its problems with terrorists so may not threaten to exercise its veto. The court prosecutor, with an international team, could then begin the task (already undertaken by several NGOs) of amassing evidence of the crimes of ISIS and bringing its members to face international justice. As ISIS falls, it is time to start talking about these possibilities.
There remains the question of where to put these international criminals. It may be that they will have to be returned to jails in the country of their nationality. There may be other solutions. Guantanamo will not be available, but further South is the Falklands and there is always St. Helena (where Napoleon was put out of sight and out of mind). There they could commune with penguins and serve out their sentences in conditions affording them the minimum level of humanity that ISIS never showed its own captives.