The Seven Year ISIS Investigation

This week, Hussein Borhot was charged with terrorism offences for allegedly travelling to Syria in 2013. He has been charged with four offences, with the kidnapping offence being a first in Canadian history. These charges demonstrate that the RCMP is willing and able to press forward with charges based on events that largely transpired overseas and even after nearly a decade has elapsed. Foreign fighters should take note.

The first three charges all relate to the offence of participating in a terrorist group, including traveling to Syria to join ISIS (charge 1), participating in training with ISIS for the benefit of the group (charge 2), and participating by committing one or more offences (likely kidnapping) on behalf of ISIS. The first of these charges is particularly important.  

In R v Khawaja, Canada’s first terrorism prosecution, the Supreme Court made clear that “participation” does not mean membership; it requires that the accused provide some further benefit to the group “beyond a de minimus threshold” (para 51). But the first count against Mr. Borhot, at first blush, looks like it is based on something akin to showing up in Syria and joining ISIS. In Khawaja, merely showing up and joining the group would not be enough because mere membership is not enough. But the Syria context is different. The unique benefit provided by a traveler here, contra most domestic situations, is merely showing up and joining ISIS. The creation of a Caliphate required people to risk life and limb and travel long distances to get boots on the ground in Syria. The success of ISIS was dependent on travelers taking this risk, not just for military assistance but because a Caliphate requires controlling land and people. By contrast, joining a domestic group generally has no such risk and no comparable reward for the group. As a result, we may see whether something akin to—or at least not far removed from—showing up and joining a group in a foreign war zone is essentially sufficient to prove the participation clause, at least in the context of ISIS and its dream of a Caliphate.

The last offence (charge 4) is committing an offence for a terrorist group; it is probably the most interesting of all the charges. This is the first time in Canadian history that an allegation of kidnapping has underpinned such a terrorism charge. We have seen something similar in the case of Ali Omar Ader, convicted of kidnapping Amanda Lindhout in Somalia. The Department of Justice seems to have treated the Ader case as akin to a terrorism trial because the kidnapping likely met the definition of terrorist activity. However, the terrorism angle was never proven in court, and indeed there were no terrorism charges in that case, including no mention of terrorist activity in the judgement or on sentencing.

Nevertheless, examining the charges against Ader and Borhot reveals one of the many ongoing confusions with terrorism offences. The taking of hostages is defined by the Criminal Code as a terrorist activity. A terrorism offence is then defined as an indictable offence that meets the definition of terrorist activity (though it is unclear how precisely one would get charged with an offence in this manner). Finally, section 83.27 of the Criminal Code, although not a criminal offence, says that terrorist activity can be sentenced for life where an indictable offence such as kidnapping also constitutes terrorist activity. All of this means in practice that there are three rather convoluted and not entirely distinct methods of approaching a charge of kidnapping for a terrorist group. First, one could be charged, as Borhot is, with the commission of an offence (kidnapping) for the benefit of a terrorist group (section 83.20). Second, as in Ader, one could simply assert that kidnapping for a terrorist group is by definition a terrorist activity and thus a terrorism offence, which sounds easy except it is unclear how the terrorism aspect would be charged or sentenced, which might explain why terrorism was neither charged nor sentenced in Ader. Third and finally, one could simply charge kidnapping and then apply section 83.27 to ensure that the kidnapping is treated on sentencing as terrorism, with a corresponding life sentence being available. If that all sounds confusing, well, it is. We can understand why the British Columbia Court of Appeal in the case of R v. Nuttall & Korody took pains to comment on the “needless complexity of the legislation” and the need for Parliament to “revisit”, “revamp” and make the legislation “comprehensible” (para 464). All this to say, prosecutors had options open to them in terms of how to charge this kidnapping, and how such decisions are made continues to be extremely difficult to discern.

The charges, taken together, are also a reminder of how broad—and vague—Canada’s terrorism offences seem to be, and how much room for overlap there is between each one. The same general facts could have been narrowed to two charges just as easily because charges 1 and 2 relate to participation with ISIS in general, and charges three and four relate specifically to the commission of an offence for the benefit of ISIS. In this case, they resulted in four counts, and one could likely find other offences and charges that we might just as easily have seen (financing, facilitation of a terrorism offence). We shall see what the court makes of all this—if it ever gets to trial—but in the past courts have not tended to be vigilant about the distinctions between the charges and particularly the factual bases that distinguish each one.

In any event, proving kidnapping will be the key to the entire case and, likely, proving all of the charges. The testimony regarding the kidnapping—either from the person kidnapped, a witness, or someone else involved that has turned informer—will likely form the foundation for proving that Borhot was in Syria, committed an offence, and participated in the kidnapping. In other words, much of the case would seem to flow from that central crime and the evidence available to support it.  

All of the above lays out what Borhot was charged with, but doesn’t answer a central question. Who might Borhot have kidnapped?

During its main campaign years, ISIS engaged in two different types of kidnapping. The first type of kidnapping targeted locals in the territory they controlled. They kidnapped thousands of people in Iraq and Syria; some of them were released following the payment of a small ransom, others were disappeared, while others were publicly executed. Most of these local kidnappings were of people opposed to the group—activists, anti-ISIS fighters, and residents, although in the case of the Yazidis, the group kidnapped them to enslave them (and also profited from this activity). While the group did raise some money from the ransoms generated by these local kidnappings, they primarily used this tactic to instill fear in the population under their control and rid themselves of opposition.

The second type of kidnapping was of foreigners, and this was done primarily to generate large ransom payments, and in the case of victims from the United States, for propaganda purposes (all the US hostages have been killed). ISIS kidnapped over 22 foreigners between 2013 and 2018 and received publicly reported ransom payments in excess of US$ 37 million for the release of some of them, although the actual amount is likely far higher. This money augmented the group’s revenue streams with influxes of cash that they likely used to expand their territory, recruit new members, procure weapons, and launch international attacks.

This leaves us with the possibility that Borhot kidnapped any one of thousands of locals, or one of the international victims that were kidnapped during the timeframe where Borhot is alleged to have been in Syria.

If the kidnap victim was from outside of Syria, we may be able to narrow down Borhot’s victim more closely based on his location. His exit documents from ISIS suggest that he spent his time in Hom (although it is of course possible that he moved around ISIS-controlled territory). One kidnaping incident took place nearby in Hama during the time that Borhot is alleged to have been in Syria. The other incidents largely took place in northern Syria near the Turkish border, while one incident occurred in Raqqa. Two other kidnapping incidents took place in or near Aleppo, Syria, including the kidnapping of two French journalists and one American aid worker Kayla Mueller and her Syrian boyfriend.

This latter case is particularly interesting. Two individuals implicated in Mueller’s abduction are now in US custody in Iraq, and have incriminated themselves in interviews that were released this week. The two men were originally captured in Syria in 2018 by the Kurdish-led Syrian Democratic Forces. Their date of transfer to US forces is unknown.

For now, we don’t know who Borhot is alleged to have kidnapped while with ISIS in Syria, or even what type of kidnapping he engaged in (local or international). What we do know is that the RCMP spent seven years investigating this case, which demonstrates their ongoing willingness to prosecute former ISIS members whenever evidence of their crimes surfaces, even if that’s the better part of a decade later.