It appears that a British citizen, “John”, was responsible for the murder of US journalist James Foley. No, there will be no link to the video here. Questions abound regarding Foley’s death – did America mess up a rescue attempt earlier this summer? was it the result of a failed shakedown? – as does analysis of its possible strategic impact. Over at War on The Rocks, Brian Fishman’s astute comments about the continuing disconnect between the end goal of “defeating” ISIS and the available means are worth repeating: “without real national consensus to sustain a strategy, there is no viable mechanism to defeat ISIL.” It seems John Kerry, the US Secretary of State, didn’t get the WOTR memo, as he resorted to quite non-diplomatic language to state (via Twitter, of course) “ISIL must be destroyed/will be crushed”. The reason that Fishman’s comments stand out in the morass of “Something must be done” commentary is that it correctly identifies the ultimate restraint on American action in Iraq (not Syria): America itself. How much will a single video change that? I don’t think that can be predicted with any accuracy, but what I do think is that “John”, and others like him, should be very, very afraid.
Earlier this summer, I wrote about a “laissez faire” policy towards the “problem” of foreign fighters from Western countries running off to fight in Syria. In a nutshell, my argument was they shouldn’t be prevented from going, but they should be warned that actions have consequences, and some form of open-source watch list should be established. Since then (well, before, even) “John” and his friends have provided us with a steady stream of video footage of ISIS members committing war crimes, carnage and, with the recent Yazidis, threatening to commit crimes against humanity. Taking a step back from the immediate strategic context and potential security challenges, I think it’s quite productive to think in terms of post-conflict justice. Hence the title for this post: over a long enough time span, ISIS’s members are pretty much screwed.
In the short term: will the British government raise a fuss if someone like “John” happens to get hit by an American bomb, or riddled with bullets by American special forces, the Peshmerga, the Iraqi army, the Syrian government, rival foreign fighters, etc? After this, I somehow doubt it. At the end of the day, the only people that can’t kill British jihadis without tripping off lawsuits are British forces, and David Cameron seems very, very wary of committing the UK to Iraq. Even if military force won’t destroy ISIS, I expect that Iraq is going to get more dangerous for anyone who fights for them. Syria isn’t exactly a safe haven, either.
The medium and long term, are, however, more interesting. After all, are the people committing war crimes going to stick around Iraq forever? I doubt it, and when the time comes to leave, they are going to have problems. At the moment security services across Europe are very worried about tracking the foreign fighters that return. One of the problems is that it’s often difficult to convict them of anything, since evidence from Syria and Iraq is scant (at the moment). Western states like Canada are finding that their laws intended to stop people fighting abroad don’t really fit with conflict in the 21st century. Many have either rushed through new legislation, or are considering it. But we don’t need new laws for war crimes – “John”, if he is indeed a British citizen, is a murderer, and we have laws that mean British citizens committing murder outside the UK can still be charged with that crime in British courts. That’s why, I think, from the perspective of justice, the deck is stacked against war criminals in jihadi groups for two reasons: politics and information.
The primary reason, I think, is that these are transnational war crimes. Every criminal tribunal prosecuting war crimes has, at some point, had to deal with the balance of justice and peace. Certainly, there can be no “true” peace after massive war crimes without a measure of justice, but at the same time, demands for justice can stoke the embers of conflict. Just look at the recent furore over amnesty in Northern Ireland. Truth commissions ostensibly privilege truth-telling and the need for clarity on behalf of victims over punitive justice. But if “John” ever returns to the UK (willingly? extradited? captured?), the English courts don’t have to concern themselves with such issues – murder is murder. If “John” happens to end up in the US, well, bad luck, I suppose. There is little political barrier to prosecution in either case.
Lack of information is a traditional shield for war criminals. The circumstances of war crimes are rarely clear cut. At this point, we don’t know that much about the leaders of ISIS, let alone who is committing which atrocity. But that’s not to say that we won’t. If King’s College London’s International Centre for the Study of Radicalisation can identify “hidden influencers” in foreign fighter networks from open sources, then we should probably bet that behind closed doors, the security services know more about these people than they can say in public. Aspects of armed conflict that would once be witnessed by individuals alone are now captured and stuck on Youtube for the world to see. Open source citizen journalism can be remarkably effective in answering “Who? What? When? Where? How?” by locating and assembling these fragments of evidence, take, for example, Bellingcat on the recent MH17 shoot down in Ukraine. For those who commit war crimes in their 20s, we should remember that efforts are still being made to track and prosecute Nazi war criminals, some 71 years after the end of World War 2. The authorities now have a world of digital information to work with, which can be stored near-indefinitely. Foreign fighter networks operate in an environment where one hidden camera phone could produce evidence linking individuals to a war crime, that is, if they don’t film it themselves and upload it for the world to see. This means that “John”, and others like him, can’t rely on the immediate anonymity that a mask provides to protect them forever. Members of armed groups that utilise social media are, over a long enough time span, likely to be identified. I doubt that any future government will be willing to “forgive and forget” ISIS’s war crimes, which means that anybody like “John” who makes it back to the UK alive and unidentified should expect to spend the rest of their lives waiting for a knock on the door from the police. Good.