Why British jihadists can’t be charged with treason

The repatriation of British jihadists from Syria raises thorny questions: what crime – if any –  should they be prosecuted for?

 
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Since the outbreak of the Syrian civil war in 2012, it is estimated that around 800 British citizens have joined ISIS in its fight against President Bashar al-Assad’s forces. And now that ISIS has all but lost that battle, a number of British jihadists are looking to repatriate or are being pushed to return to the UK by their captors in Syria.

What should we do with these individuals? Should we leave them to their fate? Or should we kill them without qualm if the operational opportunity to do so presents itself, as Rory Stewart, a Foreign Office minister, recently suggested? Should we help those who joined as teenagers to return to Britain and reintegrate into society? Should we prosecute them? And if so, for what crime?

Since Britain is taking part in military operations against ISIS, British jihadists in Syria have been fighting against their own government and, some would argue, against their fellow British citizens. As a result, proponents of the aforementioned judicial option have suggested we prosecute returning ISIS fighters under the ancient law of treason.

The Treason Act of 1351, which has since been amended but is still in force, defines high treason as acting against the monarch and their immediate family. The laws relating to espionage focus on the unauthorised appropriation and disclosure of information that is known and intended to be useful to the enemy. And the various Terrorism Acts that the British Parliament has passed since 2000 apply to any individual suspected or convicted of terrorism-related offenses on British soil or against British assets.

None of these provisions seem to deal adequately with the situation; British jihadists are not acting against the Queen and her rightful heirs. Their aim is to kill, not to procure official secrets; they do not stand in the same relationship to British territory and assets as foreigners, and the fact that they are combatants in Syria complicates any terrorism indictment.

In order to charge British ISIS fighters with treason, we would have to revise the existing law. Any revision would require a new definition of treason, but also an explanation of why this new form of disloyalty is morally repugnant and thus an offense worthy of punishment. In response to our current dilemma, the think tank Policy Exchange recently issued a report that redefines treason and considers the moral implications of this new definition.

According to the report, a political community is characterised by its members’ willingness to trust and provide for one another as well as to identify with one another as bound by similar values and as subject to the same laws and institutions. In return for the significant benefits that come with membership in a given political community, members owe one another a duty of allegiance.

This allegiance implies a duty not to aid the community’s enemies by knowingly fighting alongside enemy forces, mounting a terrorist campaign against the community at the behest of an enemy, facilitating such a campaign, recruiting for the enemy, and so on. To breach this duty of allegiance is to commit treason. Moreover, committing treason is a grievous wrongdoing, for it undermines the very trust which makes social and political life possible.

On this “political trust” view, British jihadists are clearly traitors who deserve to be punished – they have enjoyed the benefits of British citizenship but have chosen to help enemies of the UK by plotting attacks on British civilians at home, by fighting against British soldiers abroad, or by simply fighting alongside enemy troops in support of their cause – and this implies we ought to prosecute them for treason if and when they return.

There are, however, two major problems with the political trust approach to treason. First, the view fails on its own terms. We would of course like to think that all British citizens enjoy the protection of the law, a decent standard of living, and the benefit of being respected and trusted by all their fellow citizens. But this is far from true.

The vast majority of Muslims in Britain condemn jihadist terrorism. And yet there is evidence to suggest that Islamophobia, discrimination, and religious hate crime targeting Muslims are on the rise. This means the relationship between Muslim and non-Muslim British citizens is not really characterised by trust.

If this is so, then on the political trust approach a British jihadist who goes to Syria to fight against British troops, or who participates in a terrorist plot at home, doesn’t commit an act of treason, since it is impossible for the jihadist to breach a non-existent trust. This is not the conclusion the authors of the Policy Exchange report were looking for.

What is more, there is something counterintuitive in claiming “if there is no trust between the British jihadist and the British community, then there is no treason”, since treason typically means acting against the interests of one’s political community. Clearly, the British jihadist is doing just that. Yet characterising treason as acting against the interests of one’s political community, rather than breaching its trust, forces us to ask whether jihadists are ever morally justified in undermining the interests of a political community.  

This brings us to the second problem with the political trust approach to treason. By focussing on a breach of trust, the approach condemns acts which, although treasonous, might in fact be morally justified. Put otherwise, the political trust view assumes that treason is morally wrong by definition.

In a way, this is understandable. Consider the British jihadist again. He carries out an attack on British soil against British citizens with the intention of harming Britain and helping its enemies. Or similarly, he fights alongside that enemy against British forces abroad. In both cases, the British jihadist is acting against the UK’s interests. And given the cause for which ISIS fights and the means with which they do so, I take it as uncontroversial that treason and moral wrongdoing coincide in the British jihadist’s case.

However, compare the British jihadist with Oleg Gordievsky, a high-ranking member of the KGB in the 1970s and 1980s who provided the British and American governments with a raft of information about the KGB’s operations in the West until MI6 spirited him out of Moscow in 1986. This, to my mind, is a paradigmatic example both of an act of treason (for Gordievsky acted against Soviet interests) and of morally justified treason (since Gordievsky was fighting a “gang of bandits”).

The Gordievsky case shows that citizens are not always obliged to act in their country’s interests or indeed to avoid any collusion with their country’s enemies. Whether they are under such a duty partly depends on whether their country fights to just ends and does so justly, and whether its enemies themselves fight justly and to just ends.

So again, when we consider the case of British jihadists from a moral point of view, what matters is not whether they commit treason but, rather, whether their acts of violence are morally justified. Likewise, when we consider it from a legal point of view, what matters is whether their morally unjustified acts of violence are already treated as criminal offenses.

This brings us back to the question of what to do with returning jihadists. Given the complexity of the issue, I recommend a mixed approach that involves prosecuting jihadist fighters under existing criminal law and rehabilitating minors who unwittingly signed up for a reprehensible cause. And while I recognise there are no simple solutions here, I believe one thing is clear: a blanket charge of treason does not provide an answer to our domestic jihadist dilemma.

Cecile Fabre is senior research fellow at All Souls, Oxford. She is the author of Justice in a Changing World,  Cosmopolitan War and Cosmopolitan Peace .

This article is part of the Agora series, a collaboration between the New Statesman and Aaron James Wendland. Aaron is assistant professor of philosophy at the Higher School of Economics. He tweets @ajwendland.