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Fighting ISIS and the Foreign Enlistment Act

Michael Wickson

Shortly after Christmas, a family in Ontario learned of the death of their son at the hands of the Islamic State (ISIS). Nazzareno Tassone told his family he was travelling to the Middle East to teach English, but he ended up joining the Kurdish Peoples’ Protection Unit (YPG) upon arrival in Syria. The number of Canadians involved in the fighting is relatively small, but their stories capture a lot of attention. Tassone was not the first Canadian to fight against ISIS by joining a foreign unit, nor was he the first to be killed. In 2015 John Gallagher, a former Canadian soldier, was also killed while serving with the YPG. Recently, Shaelynn Jabs from Drayton Valley returned to Syria for a second tour with the female arm of the YPG, and Dillion Hillier published a book about his experiences as a volunteer fighter in Kurdistan. There are several other Canadians with similar experiences, but what are the legal ramifications, if any, for participating in a foreign conflict? Or are they just tourists with a hazardous pastime?

The most applicable Canadian law pertaining to fighting in foreign conflicts is the Foreign Enlistment Act (FEA), which was originally introduced in the 1930s in response to approximately 1,200 Canadians volunteering to fight in the Spanish Civil War. The FEA makes it an offense to join “the armed forces of any foreign state at war with any friendly foreign state,” as well as other offences such as leaving Canada with the intention to enlist, recruiting others to enlist, or working to outfit ships or expeditions to fight against a friendly foreign state. The definitions found in the FEA are sufficiently broad to include non-state actors and other militant groups, such as ISIS, and are not restrictive to the conventional definition of warfare between states. Morality aside, in the absence of a “foreign state at war with any friendly foreign state,” which armed groups would be considered as enemies of Canada?

Under section 83.05 of the Criminal Code, the Governor in Council maintains a list of organizations suspected of involvement in terrorist activities. Lacking any other alternative, this list may be the most appropriate tool to determine which non-state actors would be considered as enemies for the purposes of the FEA. ISIS appears on this list, and as such Canadians who have traveled to the Middle East to fight with ISIS would be in violation of the FEA, among other things.

The FEA specifies some activities that would constitute offences, and the corresponding minimum sentences for both summary and indictable convictions, but defers to the Criminal Code for enforcement. The Criminal Code contains several other offences that could be applied – like high treason – but as these armed groups are not formal states, the various terrorism offences would likely be the most relevant, specifically sections 83.18 – Participation in activity of a terrorist group, and 83.181 – Leaving Canada to participate in activity of a terrorist group.

The list of terrorist groups is central to these offences and the FEA would not likely be applicable to those who join armed groups that are not in conflict with an allied state. Is it really that simple? Guilt by association: on the list – bad, not on the list – good. Because the YPG is not currently on the list of terrorist groups, these Canadian volunteer fighters should be in the clear; but that’s small comfort for Dillion Hillier.

Dillion Hillier recently wrote a book about his experience fighting ISIS from November 2014 to February 2015. His story is slightly different from the others because he fought with an armed group that has been designated as a terrorist organization. The Kurdistan Workers Party (PKK) is a communist militant organization that has been engaged in a guerrilla conflict in Turkey and northern Iraq for several decades.  However, with the emergence of ISIS, the PKK have been cooperating with other military forces to repel the common enemy. Mr. Hillier fought with the PKK for several weeks, including a couple of battles, and the question is whether his association with this terrorist organization is sufficient justification for a criminal charge under section 83.18 of the Criminal Code. Although the Canadians fighting alongside ISIS forces would easily violate this section of the Criminal Code, Mr. Hillier may be saved as it only applies when one’s actions help “to facilitate or carry out a terrorist activity.” In a similar vain to domestic gang activity, courts have avoided finding someone guilty of an offence simply for being part of an organization and it ultimately depends on the specific actions that are carried out. Section 83.18 can be applied quite broadly, but given the nature of the activities Mr. Hillier was involved with during his association with the PKK (i.e. specifically fighting ISIS), it is unlikely that he would be found guilty of a terrorism offence despite the status of the organization.

For the purposes of Canadians travelling to the Middle East to fight against ISIS there appears to be very little legislation to prevent this, aside from it being highly discouraged by the Government of Canada. At one point in his book, Mr. Hillier recounts his apprehension when being questioned by the RCMP upon returning to Canada, but he came to realize that the RCMP was only trying to understand the motivations of those who would be joining ISIS instead of those fighting against the group. It is ultimately necessary to explore the nature of the activities performed by the individuals while they are outside of Canada to determine any guilt. As such, Canadians volunteering to fight against ISIS are bound in the same manner as those volunteering in foreign countries to build schools, teach languages, or participate in other humanitarian endeavours. They require passports, visas, and must comply with the domestic laws of whatever country they find themselves in.  As long as those requirements are met, and they don’t violate the FEA or Criminal Code, they are free to champion whatever cause is most deserving of their efforts.