Map of the eastern Ukrainian provinces of Donetsk and Luhansk, collectively known as the Donbass region
The recent conviction of Benjamin Stimson, a British citizen, for breaching anti-terror laws on the grounds that he aided terrorism by joining a Russian-speaking separatist militia in the Donbass region of the Eastern Ukraine raises a few troubling issues. While on the surface it appears to reinforce the impression that the Terrorism Act of 2006 is of universal application and is not solely applied to members of the Muslim community, the Stimson case appears to be one in which the British state clearly set out to punish a citizen less for the harm caused by his conduct but more out of an affirmation of the dubious geo-strategic policy that is the obligation of member states of the Nato alliance.
In prosecuting and handing down a particularly harsh sentence to a non-combatant and vulnerable man who had sought to escape the daily drudgery of his economic circumstances, the message conveyed during and after the trial was that the government in Kiev is a legitimate one and that the conduct of the Russian Federation in relation to the Ukrainian state is one based on aggression. This is a distortion which has been propagated by the Western mainstream media since the overthrow of the democratically elected government of Viktor Yanukovych in February of 2014.
The default position is that under British law, fighting in a foreign war does not automatically amount to an offence. It depends on the circumstances. This factor, along with the fluctuating nature of official guidelines directed at citizens thinking of becoming foreign fighters means that using the Terrorism Act as the sole mechanism for controlling this phenomena will in the long run prove difficult and impractical. It is clear that the British government needs to reassess the laws dealing with those British citizens who take up arms for a cause in foreign conflicts.
Aside from the difficulties associated with determining where the law should be applicable, the finding of guilt in the Stimson case arguably makes a mockery of the application of the rule of law given the evidence that the British state has itself facilitated terrorism not only in backing a government which has been responsible for many punitive actions affecting Russian-speaking civilians in eastern Ukraine, but also by giving aid and assistance to Islamist rebels who have sought to violently overthrow the governments of Libya and Syria.
Benjamin Stimson today sits in a prison cell after having received a prison sentence of five years and four months for “assisting others in committing acts of terrorism.” While Stimson had posted pictures on social media of himself holding an AK-47 machine gun while attired in paramilitary uniform, the four months spent in the eastern Ukraine during the latter part of 2015 was intended to focus on humanitarian acts such as driving ambulances. His family were under the impression that he had gone there to do farming work. Both scenarios present a far cry from Stimson’s braggadocious social media commentary of “vodka, women and guns”.
The sentence handed down struck the Stimson family as being particularly severe. Stimson had not engaged in acts of violence and his guilty plea was accompanied by a well-thought out plea of mitigating circumstances which noted a history of psychological problems. Further, Stimson, as the prosecuting lawyers and the judge admitted, was not on his return to Britain a danger to the community as would be the case with a returning jihadist who would have undergone a process of radicalisation and indoctrination. His admission of guilt appears to have been a capitulation to the state which had set out from the outset to make an example of him.
Stimson must have been fully aware that any resistance on his part would have given the prosecution cause to proceed with a further charge which has not put to the court, namely that concerned with “Engaging in conduct in preparation for terrorism”. Conviction of this indictable offence, which in American jurisdictional parlance is a felony, carries a potential maximum sentence of life imprisonment. The threat of even greater criminal sanction must have put paid to any idea of contesting any of the charges put against him.
Yet, the decision to charge Stimson, one which remained at the discretion of the authorities, is one which in the circumstances is open to criticism. And for all the risk attendant to entering a not guilty plea, a contested trial before a jury could arguably have subjected the government’s case to an embarrassing degree of scrutiny which conceivably could have ended in a not guilty verdict. This is because the English legal system provides the jury with absolute autonomy as arbiters of fact in a case such that they have the ability to reach a verdict which is contrary to the evidence. It is a principle which prevails in situations where the trial judge directs the jury to convict a defendant.
This is precisely what occurred in the 1985 case of the crown against Clive Ponting. Ponting was a high level civil servant of the Ministry of Defence whose leaking of official information to a Member of Parliament led to the government prosecuting him under the then governing Official Secrets Act of 1911. Section 2 of the Act, known as the “catch all section”, covered the “giving and receiving” of any form of government information without lawful authority. It meant that governments of all political stripes were disposed to using the Act as a mechanism for punishing those who embarrassed them. In Ponting’s case, he had disclosed information related to the sinking by the Royal Navy of the Argentine cruiser, the General Belgrano, in circumstances which contradicted the official position of the government of Margaret Thatcher. The discrediting of the law which followed Ponting’s acquittal led to its replacement.
It is arguable that an alternate, albeit risky strategy for Stimson would have been to counter the charges laid against him by striving to exploit any weaknesses among the myriad of conditionalities attached to determining whether the activities of a volunteer fighter in a foreign conflict may be judged to be illegal. Further, the official policy of considering the government of the Ukraine as “legitimate” and the Russian-speaking rebels as “terrorists” could have been vigorously challenged. Finally, an argument that the British state has itself been involved in giving aid and assistance to terror organisations could have been utilised as a means of discrediting the decision to prosecute Stimson.
The first bone of contention Stimson’s defence team might have addressed concerns the manifold difficulties associated with determining the legality of a British fighter’s involvement in an overseas conflict. For instance, it is often dependent on the current allegiances of the British state and whether the person is joining or associating with a group that has been proscribed by the British government.
David Anderson QC, who served as the independent reviewer of legislation on terrorism who issued a report in July of 2014, told The Guardian newspaper the following year that “There is a real debate to be had about how the law should treat foreign fighters”.
This is not an issue peculiar only to the present day. The Foreign Enlistment Act of 1870 provided that it was illegal for Britons to join the ranks of any foreign army at war with a state that was at peace with Britain. This act proved to be largely ineffective among a people who have a tradition of volunteering to fight in foreign wars. The novelist George Orwell was among the approximately 2500 British who in the later part of the 1930s enlisted in the International Brigades to fight for the Republican government in Spain against the Nationalist rebels who were led by General Francisco Franco.
Today British citizens may travel to a range of conflict zones which include Ukraine, Syria, Iraq and Israel, where around a hundred people without dual British and Israeli nationality are enlisted with the Israeli Defence Force.
The guidance offered by the state has not been consistent. For instance, in November of 2014, a spokesperson for the British Crown Prosecution Service said there was no guidance. “It’s really up to the police if they want to refer the case to us, and it’s about looking at the individual facts.” Around the same time, the British Home Office offered the following advice:
UK law makes provisions to deal with different conflicts in different ways - fighting in a foreign war is not automatically an offence but will depend on the nature of the conflict and the individual’s own activities.
In recent times however, it appears to have changed its tune while specifically emphasising the the Syrian and Iraqi theatre of conflict in regard to which the Home Office advice appears now to be that those who travel to fight for any side in that conflict “may be committing criminal or terrorism offences and could face prosecution when they return to the UK.”
Putting aside the issue of the danger posed by returnees who have left the United Kingdom to fight for Islamist groups such as the so-called Islamic State, Jabhat al-Nusra and other al-Qaeda affiliates, there remains a huge question regarding the aptness of prosecuting those who have travelled to fight against Jihadist groups in Syria and Iraq.
The argument that they would be unlikely to pose any danger on their return has received support from many quarters including the former prime minister David Cameron who while in office argued that there is a “fundamental difference” between fighting for Kurdish groups and Jihadist militias. In Stimson’s case, the sentencing judge acknowledged that Stimson did not hold “extremist views” and would pose no danger to the community on his return.
A second point of argument which could have been used by Stimson was to have challenged the respective designations of the Ukrainian government as being a legitimate one and the Donbass separatist militias as terrorist organisations. The statements of the prosecuting barrister, Barnaby Jameson, provided the official viewpoint of Nato which posits the Russian Federation as the instigators of the Ukrainian conflict.
According to Jameson: “From the perspective of the Putin government, the conflict was about creating ‘Novorussia’, or New Russia - and expanding Russian territory to include the entire Ukraine.”
A defending barrister, in the first instance, could under the circumstances of a full trial have introduced evidence demonstrating the fact that the existing government in Ukraine came to power by means of a coup d’etat which overthrew the democratically elected government of Viktor Yanukovytch.
The crisis in Ukraine essentially stems from the hubristic urge of the EU and Nato to keep on expanding, in the case of Nato, a violation of the agreement reached between American and Soviet leaders that in return for allowing German reunification, Nato was obligated to refrain from seeking to extend its sphere of influence into eastern Europe.
Overseen in February 2014 by Victoria Nuland, the then serving US Under Secretary of State of European and Eurasian Affairs, the change was facilitated by the involvement of ultranationalist and neo-Nazi groups such as Pravy Sektor.
One of the first edicts issued by the post-coup Parliament which was hijacked by ultra-nationalists was the abolition of a law which allowed the country’s regions to make Russian a second official language. This decision along with other measures taken by politically far Right xenophobic forces unsurprisingly caused deep concern among Russian-speaking populations of the east.
It could have been argued in court that far from being terrorists, the rebel militias which developed in the Donbass area had no other option than to resort to armed warfare in order to preserve their lives, their language and their culture from a newly installed regime which had been brought to power by the political descendants of Stepan Bandera, the Ukrainian nationalist who collaborated with the Nazi invaders of the Soviet Union during the Second World War.
Benjamin Stimson therefore was arguably not assisting a group of people who had resorted to violence to influence a government or people for an ideological cause, since the Donbass separatists were acting in self-preservation and exercising a right to self-determination as accorded by customary international law and enshrined in a range of treaties.
The development of the secessionist movements was based on the fears unleashed by atrocities perpetrated on Russian-speaking populations such as the massacre of almost 50 persons after the burning of Trade Unions House in Odessa. This served as a pivotal moment in convincing many among the Russian-speaking population of the Donbass region to remove themselves from Ukraine.
The use of the Azov Battalion, initially a volunteer unit and later upgraded to that of a regiment within the Ukrainian National Guard, provides evidence of the existence within the Ukrainian state of soldiers who openly profess a neo-Nazi ideology.
Stimson’s argument could thus have been that he could not be guilty of an offence of aiding terrorism when he was in fact intending to provide assistance to a people threatened not merely by a government embarked on making them second class citizens but even with the aim of ethnically cleansing them from their homeland.
The claims made by the prosecution that the Russian Federation is intent on creating Novorussia conveniently ignores a number of key issues. First relates to the expressions during the early period of the Ukrainian crisis of many Russian-speakers in the Donbass that they did not want to be absorbed in Russia as Crimea was, but that they wished to remain in a decentralised Ukrainian state.
One other factor which rebuts the thesis of the conflict serving as a prelude to a project for Novorussia is the fact that the Russian armed forces could have invaded and conquered the whole of Ukraine within a matter of a few days if it had been resolved to do so. It also ignores the fact that Russian ultra-nationalists accused President Vladimir Putin of weakness for not invading the eastern part of Ukraine and annexing it with a natural border being provided by the River Dnieper.
A peek behind the veil of the propaganda perpetuated by the mainstream Western media reveals that a great deal of Russian policy has been reactive rather than proactive. The reference by the prosecutor to Russian annexation of Crimea was done in the context of framing it as an act of empire-building imperialism. Crimea, which had been Russian territory from the time of Catherine the Great until it was appended to Ukraine by the Soviet government in the 1950s, is of course majority Russian-speaking and opted to join Russia by an overwhelming majority after the holding of a plebiscite.
It was wholly predictable that following the installation of a russophobic regime in Kiev that Vladimir Putin, on the advice of his national security council, would take steps to protect the vital national interests of his country by securing Russia’s access to the Mediterranean Sea which is guaranteed by its Baltic Fleet stationed in Sevastopol on the Crimean Peninsula.
The respective crisis occurring in Ukraine and earlier in 2008 in Georgia, bear this out as indeed does the situation related to the deployment of nuclear weapons. In 2002, the United States unilaterally withdrew from the Anti-Ballistic Missile treaty and adopted a missile shields policy.
The third point of argument would have been for Stimson’s team to have pointed out that finding the defendant guilty would be a travesty of logic as well as an abrogation of the rule of law given the British state’s documented facilitation of terrorism. A clear example of this was the collapse in 2015 of a trial of Bherlin Gildo, a Swedish national, on charges of terrorism. The Old Bailey was informed that the case, which centred on Gildo’s activities in Syria, had to be discontinued because an open trial would have caused deep embarrassment to Britain’s intelligence services because of their covert support for militias seeking to overthrow the legal government of Syria.
More recently, were the revelations of the support given by the Security Service to UK-based Libyan Islamists who were had control orders lifted and allowed to travel unhindered so long as they pledged to join in the effort to overthrow the Libyan government.
The Libyan uprising was of course facilitated by Nato with British Special Forces soldiers playing a key role in training and directing operations of the al-Qaeda-affiliated Libyan Islamic Fighting Group. The same bargain has been offered to Islamists in regard to the Western-instigated efforts to overthrow the Syrian government by the use of Islamist proxies. The Syrian War is a conflict which was prepared years in advance by Western countries according to Roland Dumas, the former French foreign minister, who revealed in 2013 that he had been approached to help in these efforts by officials of state while on a visit to Britain.
The comments of the head of the North West Counter-Terrorism Unit indicate that the state intends to pursue all who participate in foreign conflicts. “He (Stimson) has been jailed for the role he played in a violent conflict and I hope his conviction will send a message to all those who are even considering joining conflicts,” said Detective Chief Superintendent Russ Jackson.
There is of course a logic to a policy designed to discourage any form of participation by British citizens in any form of conflict around the globe. Most of them will not have had prior military experience and if sent into an area of actual fighting, they face capture, injury or death. They will likely not operate within a regular command structure, and this lack of supervision may create a whole range of issues which could negatively impact on them.
On their return there are dangers related to how they can readjust into society due to mental health conditions much in the manner of those faced by returning veterans who have served in the country’s regular armed forces. Many of those who returned from service in the Spanish Civil War generations ago were surprised not have received hero’s welcome and instead faced suspicion from employers and the authorities. Indeed, many were not allowed to serve during the Second World War.
There have been prosecutions involving British citizens attempting to join the anti-ISIS efforts of Kurdish militias such as PKK or Kurdish Workers Party. If the British government wishes to adopt a blanket ban approach to foreign fighters, that is, an across the spectrum prohibition from joining foreign armies and militias regardless of their status and allegiances as is the case with countries such as Belgium, Switzerland and Australia, it should change the law to reflect this.
The supreme irony in this whole scenario is that as part of its alliances with Nato and the EU, the British state has been intimately involved in fomenting each of the major conflicts in which it is now trying to prevent its citizens from involving themselves.
It is the reason why, as Benjamin Stimson contemplates serving his sentence, the “real debate” about how the law should treat foreign fighters suggested by David Anderson is long overdue.
© Adeyinka Makinde (2017)
Adeyinka Makinde is a London-based writer. He can be followed on Twitter @AdeyinkaMakinde