What Mark Taylor could be prosecuted for

If Mark Taylor manages to get from captivity in Syria to Turkey, and then back to New Zealand – the Government nor anyone else seems to be rushing to help him come back here – he is likely to be taken into custody pending prosecutions. What he might face is yet to be determined, but there’s a variety of possibilities.

Stuff – Mark Taylor: The potential legal case facing the ‘Kiwi jihadi’ if he makes it home to New Zealand

Prime Minister Jacinda Ardern has said “Kiwi jihadi” Mark Taylor would face the full force of the law if he returned to New Zealand, so what would that look like?

Ardern made clear “it is unlawful to join and fight with a terrorist organisation as Taylor has done”, so there would certainly be legal consequences.

Is it Ardern’s call to make? Prime Ministers wouldn’t usually get involved in prosecutions, politicians are supposed to get a separation between them and the administration of the law.

If Taylor manages to make his own way to consular assistance – the closest available is in Turkey – and return to New Zealand it’s likely he will be picked up at the airport by authorities and brought to prison awaiting criminal prosecution.

That seems like a given. It would be alarming if this didn’t happen.

In 2015, police took “further security measures” after Taylor posted a YouTube video urging Islamic State followers in New Zealand to launch attacks on Anzac Day.

This week police told Stuff if a New Zealand citizen suspected of associating with a terrorist group were to return, they would be investigated under New Zealand law.

Police were working closely with domestic and international partners as part of its efforts to ensure the safety and security of New Zealand and New Zealanders.

“The circumstances of these individuals is highly complex and any investigation or possible judicial proceedings would be considered on a case by case basis. Police does not discuss matters regarding specific individuals.”

So what is Ardern giving her opinion for then?

Legal experts say Taylor’s social media and video postings would like see him charged under the Crimes Act, Terrorism Suppression Act and possibly the International Crimes and International Criminal Court Act.

He would be refused bail but would avail the rights offered to every citizen in the criminal justice system and his case would likely be long and drawn out through the courts.

The prosecution would not necessarily be a slam dunk with much of the case dependent on proof.

It’s normal for just about any legal case to depend on proof.

Dr Bill Hodge from the University of Auckland law faculty…

“As I understand it, he wasn’t shooting but acting on guard duty but that in itself is routine military exercise. Even if he wasn’t shooting or beheading, he was enabling others to do those things.”

“I think he’d be faced with a maximum possible sentence of 14 years, on the outer limits.”

That must surely depend on what he is charge with.

Professor Alberto Costi​ from Victoria University, who specialises in armed conflicts and international criminal law, said it was not clear what Taylor really done but he had boasted about what he was involved in.

There were provisions in the Crimes Act for threatening to kill as well as the International Crimes and International Criminal Court Act, such as war crimes, crimes against humanity.

John Ip, senior law lecturer at the University of Auckland, said Taylor could be charged with several crimes.

War crimes were a possibility.

He cites a case from Sweden, where a former rebel was convicted and sentenced to life imprisonment for war crimes – more specifically, involvement in the execution of captured Syrian government soldiers.

However, it’s more likely Taylor would face prosecution under the Terrorism Suppression Act. It states any person who even joins a designated terrorist organisation, is liable on conviction to imprisonment for up to 14 years.

That’s where the 14 year maximum comes from, but that’s just one possible charge.

Another possibility under the same act, was to commit a terrorist act, punishable by up to life imprisonment, he says.

Ip and other legal experts agree, the most likely offence would likely be section 13 of the act; participating in a terrorist group, which would not require proof of specific wrongful conduct such as executing prisoners and killing civilians. The law describes the participation in a designated terrorist entity.

But Ip says there is no guiding case law on what terms like “participation” mean.

“The sections have never been used and sitting moribund since the aborted prosecution in relation to the Operation Eight raids in 2007.”

Whatever Taylor ends up being charged with it would be a test case and is likely to be challenging to both prosecute and defend.

Would it go before a jury? It could be hard to find 12 people in new Zealand who don’t think he’s an idiot who deserves to have the legal book thrown at him.

It’s possible that with untested law he gets off on a technicality.

Another possibility is some sort of charge and plea agreement. Taylor has already claimed or admitted quite a bit. He might find it simpler and less risky to cooperate and accept a moderate sentence.

Problems for Mark Taylor, and for New Zealand if he gets here

Mark Taylor created major problems for himself by joining ISIS in the war in Syria.

After finding life with ISIS ‘unbearable’ (they are largely defeated) Taylor handed himself over to Kurds in Syria, probably one of his safer options. But his problems don’t end there.

Somehow Taylor needs to cross from the Kurds into Turkey (who oppose the Kurds), get to the New Zealand Embassy in Ankara, get an emergency passport (even if he hasn’t destroyed his passport as claimed it will have expired), and pay for plane tickets back to New Zealand. He may not have much money, nor an easy way of getting any.

If Taylor does manage to get back he enters a situation with more problems.

Going by comments here and elsewhere he may just about enter a lynch mob mentality. He is likely to be arrested and held in custody, and that may be for his own safety. But he may need to be protected in prison too.

Unlike some (it seems many in Taylor’s case) I oppose capital punishment, but I expect he will be charged appropriately, and if his own claims about what he has done are true he should be sentenced to far more than the couple of years in prison he said he was expecting or hoping for. It looks to me like he has earned something like a life sentence with a long mandatory non-parole period.

If he has to spend that in isolation for his own protection then he only has himself to blame. Going to fight for ISIS is one of the more reprehensible things anyone could have done. He is lucky not to have been killed by opponents in Syria, and also by others in ISIS.

If he is lucky enough to get back safely to New Zealand I hope we are lucky enough to be fully protected from him.

‘Kiwi Jihadi’ fled ‘unbearable life’ with ISIS

New Zealand has it’s own problem with what to do about someone who got involved with ISIS in Syria. In the first instance, apparently nothing, although Mark Taylor is a New Zealand citizen so we may end up being stuck with him.

RNZ: ‘Kiwi Jihadi’ in Syria will have to find his own way out – Ardern

Nicknamed the ‘Kiwi Jihadi’, Mark Taylor told the ABC he fled the Islamic State group in December and surrendered to Kurdish forces because life had become unbearable.

In 2009, he was arrested in Pakistan for trying to gain access to Al Qaeda.

In 2010, he was deported by ASIO after he was assessed as being a security risk. Taylor had lived in Australia on and off for 25 years.

In 2015, the US government declared Taylor a global terrorist after he encouraged attacks in Australia and New Zealand and appeared in an IS propaganda video.

Taylor said he would be surprised if New Zealand did not take him back.

“If they do take me back, most probably I’ll be spending a couple of years in jail,” he said.

Is that optimism? I don’t know what he could be charged with if he comes back to New Zealand.

And he had an apology, of sorts, for his home country.

“I’m sorry for causing too much trouble and being a bit hot-headed and flamboyant in my approach… I don’t know if I can go back to New Zealand, but at the end of the day it’s really something I have to live with for the rest of my life.”

Joining and fighting with a  group with a despicable war and human rights record is a bit more than “a bit hot-headed and flamboyant”.

Ms Ardern and Justice Minister Andrew Little would not be drawn on the specifics of the case at a post-cabinet press conference today but said they had warned New Zealanders of the risks.

“New Zealand has made it very clear from the outset that New Zealanders should not travel to Syria. Further, it is clear that it is unlawful to join and fight with a terrorist organisation as Mark Taylor has done.”

His actions in joining IS and travelling to Syria to fight for them has created potential for legal ramifications in New Zealand, she said.

“As with any New Zealand citizen overseas, if they wish to return to New Zealand then a journey specific emergency travel document can be issued under Section 23 of the Passports Act 1992.”

The absence of New Zealand diplomatic representation in Syria meant the ability of the government to assist any citizens there was “severely limited”, Ms Ardern said.

She said Taylor would probably have to travel to Turkey to get the documents he needed.

“We have consistently told Mark Taylor that we cannot help him obtain a travel document, he would need to make his own way to a country where New Zealand has consular representation, something that in his current situation will be difficult to do.”

Taylor only had a New Zealand citizenship and the government had an obligation not to make people stateless, she said.

More from RNZ:  Call for NZ to take ‘Kiwi jihadi’ Mark Taylor likely

New Zealand can shortly expect demands from Kurdish officials to take the imprisoned Kiwi IS fighter, Mark Taylor, off their hands.

Mr Taylor was arrested in December, and told the ABC’s Middle East correspondent Adam Harvey he had turned himself over to Kurdish forces when he realised life under Islamic State wasn’t what he had anticipated it would be.

He said his life had become unbearable, with no food or money, and that basic services had collapsed.

Life has been unbearable for many people as a result of what ISIS has done, and that he has been a part of – inluding encouraging attacks on New Zealand.

Mr Harvey told Morning Report that Kurdish authorities wanted nothing to do with the western fighters now scarpering from the terrorist group – and that includes Mr Taylor.

“They’ve expressed to us their desire, that that’s what needs to happen with these foreign fighters and the IS families, the people in the camps,” he said.

Mr Harvey said Mr Taylor also told him he had spoken with New Zealand representatives since his arrest in December.

“He said shortly after his arrest he was spoken to by New Zealand intelligence officials on the ground here.”

“I have no idea when a formal request will be made. We’ll be speaking with the Foreign Minister of Kurdistan in a couple of days so we might get some more information then.

“But I think it’s safe to say that they want Mark Taylor out of here as soon as possible. He’s just a burden to them.”

He’s likely to be a burden to New Zealand if he ends up here, but we may have no choice.