In October 2017, the Soufan Group published a report identifying over 850 individuals from the United Kingdom who had traveled to Syria and Iraq and joined the Islamic State (ISIS). According to the report, approximately 425 of them have returned, which the British government has recognized. In response to a Council of Europe inquiry, the UK identified that, as of June 2017, there had been 101 successful convictions related to ISIS atrocities. This number includes not only foreign fighter returnees but also other individuals who had facilitated the atrocities from Britain. The low number of convictions is cause for concern, and there are serious questions why more have not been prosecuted.

In a recent parliamentary debate, Ben Wallace, the British minister for security and economic crime, said, “Everyone recognizes the challenge we have in Europe. I was at the G7, and every member state has a cadre of foreign fighters who are a challenge when they come back.” According to Wallace, “It is important to get a statute book that can deal with that. It is often the case that we have evidence that foreign fighters have travelled to, say, Raqqa, and we may have evidence to some extent that they have supported or been engaged in areas of terrorism, but it has been very hard to prosecute. That is what this bill is trying to do. The Danish government have similar legislation, as do the Australian government.”

The provision Wallace referenced is Clause 4 to the Counter Terrorism and Border Security Bill, which is currently before the House of Lords and criminalizes “entering or remaining in a designated area.”

If it becomes law, someone would commit an offense if

(a) the person enters, or remains in, a designated area, and

(b) the person is a United Kingdom national, or a United Kingdom resident, at the time of entering the area or at any time during which the person remains there.

The UK secretary of state would designate such areas. In order to do so, he or she would have to be “satisfied that it is necessary, for the purpose of protecting members of the public from a risk of terrorism, to restrict United Kingdom nationals and United Kingdom residents from entering, or remaining in, the area.” The provision does incorporate excuses for when traveling to or remaining in designated areas would not be an offense.

Is the new law the needed response to foreign fighters? This is certainly what the UK government believes when Wallace said that “400 people in this country who have returned from activity in hotspots, many of whom we believe, from intelligence, have been active, but whom we have been unable to prosecute.”

However, skepticism toward the new provision cannot be ignored.

The provision not only appears excessive, but other laws already exist and could have been used to prosecute hundreds of ISIS foreign fighters who roam British streets freely. For example, section 17 of the Terrorism Act 2006 provides extraterritorial jurisdiction for several offenses, such as encouraging terrorism or membership of a proscribed organization. It is questionable why the UK hasn’t used these provisions but has instead resorted to the very excessive approach of criminalizing “entering or remaining in a designated area.” The government should review why it has failed to prosecute ISIS foreign fighters before introducing such excessive provisions.

Furthermore, if Clause 4 becomes law, would the secretary of state use the power to designate such areas, or will he or she be restrained by political or diplomatic considerations?

There are indeed questions whether Clause 4 is the needed response to the issue. However, as Parliament rushes through with the Counter Terrorism and Border Security Bill through both chambers, these questions are unanswered.

Ewelina U. Ochab is a human rights advocate and author of the book Never Again: Legal Responses to a Broken Promise in the Middle East. She works on the persecution of minorities around the world, with main projects including Daesh genocide in Syria and Iraq, Boko Haram atrocities in West Africa, and the situation of religious minorities in South Asia. She has written over 30 UN topical reports (including Universal Periodic Review reports) and has made oral and written submissions at the Human Rights Council sessions and the UN Forum on Minority Issues. Ochab is currently working on her Ph.D. in international law, human rights, and medical ethics. Follow her work on Twitter: @EwelinaUA.

Photo Credit: By neiljs, via Flickr.