The prosecution evidence against former soldier Lisa Smith, who denies membership of Islamic State, falls short of what is required, a defence barrister has told her trial.
Ms Smith (40) has been on trial for nine weeks at the Special Criminal Court. The trial finished on Wednesday but the three judges of the non-jury court have not yet indicated when they will deliver a verdict. The case will be mentioned again next Thursday, April 7th. Ms Smith’s barrister Michael O’Higgins SC said he may have further submissions to make at that stage.
Ms Smith from Dundalk, Co Louth travelled to Syria in 2015 after Islamic State, also known as Isis, leader Abu Bakr al-Baghdadi called on all Muslims to travel to the Islamic State he had created.
The accused has pleaded not guilty to membership of an unlawful terrorist group, Islamic State, between October 28th, 2015 and December 1st, 2019. She has also pleaded not guilty to financing terrorism by sending €800 in assistance, via a Western Union money transfer, to a named man on May 6th, 2015.
Mr O’Higgins finished his closing speech to the judges on Wednesday morning.
He began by saying the methodology used by prosecution witness Dr Florence Gaub was flawed and he was concerned that the prosecution is relying on her. Dr Gaub, a social scientist and expert on Middle Eastern conflicts, told the trial anyone who travelled to Isis-controlled territory and engaged with the state became a member of the terrorist organisation. She said those who travelled engaged in a reciprocal relationship whereby they provided the tools for state-building and in return got preferential treatment when it came to food and services, including internet access and housing.
Mr O’Higgins said Dr Gaub, in her report for the court, had used inaccurate language describing everyone who travelled to the Islamic State as a “foreign fighter” regardless of what role they actually played.
He said there was no factual basis for her claim that all food distribution in the area was controlled by Islamic State or for the claim that westerners received preferential treatment.
Dr Gaub conceded she had not been to Syria during the conflict and Mr O’Higgins questioned how she could have concluded that people who worked as nurses or teachers were guilty of Islamic State membership but not taxi drivers.
He compared her description of the reciprocal relationship between Islamic State and those living there to the situation of residents of Republican-controlled areas of Belfast.
Mr O’Higgins said that whether they approved or not, they benefitted from the local transport networks created by the IRA or from their efforts to curb anti-social behaviour by knee-capping or beating joy-riders and others.
He added: “No-one in their right mind would say that reciprocal benefit would mean that if you stayed there you were a member of an illegal organisation. The logic underpinning the entire opinion is woolly in the extreme and doesn’t stand up to the high level of evidence required to impose criminal liability on someone.”
He questioned why Dr Gaub’s report did not conclude that religion was a major motivator for those traveling to the Islamic State. Mr O’Higgins said “religious fervour is at the heart of this” and questioned the quality of her evidence given that she placed so little importance on it.
Professor Hugh Kennedy, who was called by the defence, told the trial there were respected voices within the Islamic community saying the caliphate announced by al-Baghdadi was legitimate.
Mr O’Higgins said given the debate within Islam, those outside would have “little or no hope in puzzling it out and the fact it drew in such a large number of people from so many sources tells its own story”.
He said the court cannot simply say everyone who was inside the geographical boundary of Islamic State-controlled territory is “prima facie a terrorist”.
To be a member, he said, requires the mental element of deciding that you want to be a member and the organisation must agree that you are a member. He said the prosecution case against Ms Smith at its height “might at a stretch be argued as some form of assistance” but could not equal membership.
The only positive act the prosecution could point to, Mr O’Higgins said, is that Ms Smith kept a home for her husband.
He said the UN High Commission had condemned Iraqi courts for convicting on similar grounds, adding: “If they condemned it there, I’m at a loss as to how the Director of Public Prosecutions on Parkgate Street can say it.”
Counsel said the interviews conducted by gardaí with his client were unfair in that, he said, the detectives did not properly answer Ms Smith when she asked if she was being accused of doing something wrong by going to the Islamic State or for something she did while there.
Going through her interviews with gardaí, Mr O’Higgins said she maintained that she went out of a religious obligation and had a fear of hellfire if she failed to live up to her obligation.
She said she did not join any group and told gardaí she would “never join a group like that”.
Before leaving she said she did not know what to believe about the atrocities being carried out by Islamic State and felt she could not “sit back and do nothing while Muslims are being slaughtered” by the Syrian Assad regime.
Mr O’Higgins asked the court to consider whether Ms Smith would have travelled to Syria had al-Baghdadi not declared a caliphate to which she felt an obligation to travel. He said the likely answer was no.
Mr O’Higgins said prosecution barrister Sean Gillane SC had spoken with “a degree of fervour about the disgusting nature” of the videos of Islamic State atrocities that Ms Smith viewed before traveling to Syria.
While counsel accepted the videos were disgusting, he said the last public execution using a guillotine was carried out in 1939 in front of a “raucous crowd”, some of whom dipped their handkerchiefs into the blood of the deceased to keep as a souvenir.
Counsel said he did not want to engage in “whataboutery” but, he said, there were about 6,000 deaths attributed to Islamic State while the Assad regime was said to have killed some 200,000.
He questioned why Mr Gillane would think such acts would make Ms Smith change her behaviour given that Saudi Arabia in recent weeks beheaded 81 people. He added: “Does anyone here believe we will buy one less barrel of oil from Saudi Arabia or that the Americans will cancel one arms deal?”
He said the barbarism of Isis is not to be justified or minimized by comparison with others but asked the court to put it in its correct place. He concluded that the prosecution case “falls short of what is required to establish membership”. On the funding charge, the defence is relying on submissions made during an earlier application in which Mr O’Higgins said Ms Smith did not intend the €800 to be used by a terrorist organisation but was solely for the personal use of the recipient.