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The Qualification of the Activities of (Returned) Foreign Fighters Under National Criminal Law
Abstract
National prosecutors and courts usually qualify the activities of foreign fighters (FFs) as terrorist offences. However, the groups FFs join tend to have a “dual nature”: they usually qualify as both terrorist groups under counter-terrorism (CT) instruments and non-state armed groups (NSAGs) under international humanitarian law (IHL). Hence, the activities of (returned) FFs are situated at the confines of CT instruments and IHL, which complicates the qualification of their activities under national criminal law. These activities may qualify as serious violations of IHL, namely war crimes, but also as other international crimes, namely crimes against humanity or genocide. Furthermore, some of the activities committed by FFs can also be qualified as “common” offences under domestic criminal law. Ultimately, we conclude that national prosecutors and courts should consider all relevant legal frameworks when qualifying the activities of (returned) FFs. FFs should be prosecuted and punished for international crimes and common offences in addition to, or instead of, terrorist offences if necessary or appropriate.Keywords(Returned) foreign fightersCounter-terrorismTerrorist offencesInternational humanitarian lawWar crimesCommon offencesNational criminal lawNational courtsNational prosecution
... However, this counterterrorism perspective has been adopted at the national level by various member states, shaping their responses to foreign fighters. Various definitions of "foreign combatants" have emerged in academic literature, with one prevalent definition describing individuals motivated by ideology, religion, or kinship to leave their country to join an armed conflict abroad (Van Poecke & Cuyckens, 2023). Key aspects of this definition include. 1) Motivation, foreign combatants are driven by ideological, religious, or familial factors rather than personal gain. ...
The increasing presence of foreign fighters in the armed conflict in Ukraine has posed significant challenges to the application of International Humanitarian Law (IHL). These foreign fighters, often motivated by political, ideological, or religious reasons, do not neatly fit into traditional legal categories such as lawful combatants, civilians, or mercenaries. Their involvement on both sides of the conflict between those supporting either Ukrainian forces or Russian-backed groups, presents a complex issue that requires careful consideration within the context of IHL, which currently lacks clear provisions for addressing their legal status. This study focuses on the research question: Does the involvement of foreign fighters in the armed conflict in Ukraine comply with the principles of International Humanitarian Law? This issue is particularly important as it exposes significant gaps in IHL, revealing its inability to adequately address the complexities of modern armed conflicts involving non-state actors. Employing a juridical-normative approach, this study examines the application of IHL to foreign fighters in the Russia-Ukraine conflict, focusing on their rights, responsibilities, and accountability. The findings show that IHL lacks specific provisions to regulate the legal status of foreign fighters, relying instead on general human rights principles that fail to address their unique circumstances. This creates a legal vacuum, undermining both their protection and the enforcement of accountability for violations. The study concludes that targeted reforms in IHL are urgently needed to establish clear legal standards for the classification, protection, and prosecution of foreign fighters, thereby strengthening the overall humanitarian framework for contemporary armed conflicts.
While armed conflicts are principally governed by international humanitarian law (IHL), activities of members of non-State armed groups and their affiliates may also qualify as terrorist offences. After explaining why the concurrent application of IHL and criminal law instruments on terrorism causes friction, this article analyzes the chief mechanism for dissipating this friction: a clause excluding activities governed by IHL from the scope of criminal law instruments on terrorism. Such armed conflict exclusion clauses exist at the international, regional and national level. This article explains how an exclusion clause can best avoid friction between IHL and criminal law instruments on terrorism.
Recently, the idea that criminal sanctions should be seen as an essential mechanism within transitional justice for dealing with collective violence has gained increasing traction. The article focuses on the purposes of criminal law and punishment , and what they can achieve in relation to victims and society in transitional contexts. As to victims, it proposes a reorientation of the victim-oriented theories of punishment towards consequentalism and the adoption of a wider concept of justice. As to society, it argues that in transitional contexts the main purpose is positive general prevention. Under both perspectives, the conclusion is that victims' interests should be weighed up against other social aims and that a flexible approach to the prosecution and/or punishment of offenders should be permitted, in the search for the best optimum means possible to guarantee the ultimate aim of the maintenance of social order.
This chapter surveys various developments and counter-developments of the first decade of the 21st century relating to identifying the governing legal paradigm of the 'war against terror'. Part 1 describes the jurisdictional struggle between the two principal legal paradigms that purport to regulate the international fight against terror: the law enforcement and the armed conflict paradigms. Arguably, many disagreements concerning the lawfulness of specific counter-terrorism, such as targeted killings or detention without trial, are actually disagreements on the applicable legal framework and the stories on the nature of the threat of terrorism that is being offered. Part 2 considers the emergence of a mixed paradigm which borrows contents from both human rights law and humanitarian law. It argues that such normative crossover illustrates the difficulty of maintaining rigid paradigmatic distinctions in light of the complexities of the fight against terror; but also that some key differences in emphasis between the two paradigms nonetheless remain. Most significantly, it is argued that the development of a new mixed paradigm merely recontextualizes pre-existing jurisdictional struggles over the proper legal framework to govern the fight against terror. Part 3 concludes.
The four Geneva Conventions, adopted in 1949, remain the fundamental basis of contemporary international humanitarian law. They protect the wounded on the battlefield, those wounded or shipwrecked at sea, prisoners of war, and civilians in time of war. However, since they were adopted, warfare has changed considerably. This book investigates the application of the Geneva Conventions and explains how they should be interpreted today. It considers the Conventions in light of the developing obligations imposed by international law on states, armed groups, and individuals, most notably through international human rights law and international criminal law. This commentary adopts a thematic approach while providing detailed analysis of all the relevant Articles of the 1949 Geneva Conventions.
The Islamic State has lost its final territory in Syria, but the international community now faces an array of complex and difficult challenges, in particular those related to the up to 52,808 foreigners now recorded by the authors with the group including up to 6,902 foreign women and up to 6,577 foreign minors. Of unique concern are the minors born to parents in the ‘caliphate’ established by the Islamic State who represent up to 60 percent of total minors currently accounted for in countries with strong data on this issue. Returning home to varied state responses, up to eight percent of the up to 8,202 returnees are now recorded as women, and up to 20 percent minors. Thousands more remain in limbo in the region, however, and significant gaps in the data leave this picture incomplete.
This second edition of Volume I of the three-volume Treatise on International Criminal Law addresses the foundations of international criminal law and the emerging general principles. It examines the history of the discipline and the concepts behind it. Starting with the development of international criminal justice, the book proceeds as follows: it attends to the sources of international criminal law, then moves to investigate the general structure of crime in international criminal law, and addresses in detail the concept and forms of individual criminal responsibility; it then turns to the subjective requirements of criminal responsibility, and defences that exclude such responsibility. International criminal justice is a flourishing field, with the birth of new international criminal tribunals and both accountability and investigative mechanisms. Case law increases rapidly, so does the ensuing substantive scholarship. This is also true for international criminal law’s foundations and general principles, treated in this volume. Thus, the previous edition has been completely revised, updated, and rewritten in some parts. The author strived to include both relevant case law and scholarly work up to March 2021.
The collapse of the Caliphate, including the resulting surrender of hundreds of fighters to the Syrian Democratic Forces, as well as the tweets from President Trump threatening his allies to release 800 Islamic State fighters if they would not take back their own citizens, has led to an intense debate on what to do with these so-called foreign fighters. Many counter-terrorism experts and international lawyers have argued that these fighters should be brought home and brought to justice before national courts, for moral, legal and long-term security reasons. In the context of national prosecutions, the aim should be to not have a one-size fits all, but rather a tailored approach, ensuring that perpetrators are prosecuted, as much as possible, for the actual crimes they have committed. If we consider foreign fighters to be individuals joining a non-state armed group in an armed conflict, there is by definition an important nexus between foreign fighters and armed conflict. Hence due regard should also be paid to international humanitarian law in the framework of their prosecution. This article will analyse and assess the first cases where the relationship between counter-terrorism and international humanitarian law played a role and aims to provide, based on the direction this discussion is heading, the necessary guidance.
The interaction of international counter-terrorism laws with IHL is an area of renewed focus, amid widespread concern that the former are being (mis)applied to criminalise the provision of humanitarian assistance envisaged under the latter. The Security Council has begun to consider this issue in resolutions adopted in March and July 2019, but difficult questions of law and fact remain. These questions have significant practical consequences—for humanitarian agencies and those they seek to assist, as well as for States that must weigh different, and possibly conflicting, legal obligations. Much of the analysis to date and the solutions proposed, pay insufficient attention to the specifics of each legal regime.
The Syrian civil war has highlighted the phenomenon of foreign fighting, in which individuals leave their home State to join an armed conflict overseas. The predominant paradigm for regulating foreign fighting, centred on United Nations Security Council Resolution 2178, is based on counterterrorism, which in essence treats foreign fighting as a form of terrorism. This paradigm is largely reflective of the domestic legislation of the United Kingdom, United States, Canada and Australia. This article argues that this approach is problematic, and that an alternative paradigm based on the international law of neutrality and related domestic legislation provides a better means for regulating foreign fighting.
Rechtskundig Weekblad
In this chapter the authors explore the domestic implementation of international sanctions through a criminal justice approach. Within this scope, the authors elaborate on two themes of practical importance to the prosecution of sanctions busters in criminal courts and the resulting complications. First, it is argued that most violations of sanctions can be characterized as different crimes. Strategic and material reasons for the selection of crimes to be charged are explored; by analysis of the multiple criminal cases against members the Liberation Tigers of Tamil Elan (LTTE) throughout the world, the various implementation possibilities are evaluated. The second part of the chapter focusses on the problematic effects that poorly established sanctions regimes have on the prosecution of sanctions busters. The authors argue that the annulment of sanctions, or the threat of such, erodes the effectiveness and strength of the international sanctions regimes itself. The question arises whether annulment of sanctions on procedural grounds should automatically preclude criminal prosecution for violations prior to that annulment. © The Editor and the Contributing Authors Severally 2017. All rights reserved.
This Chapter looks at the specific national practices of those five European countries with the largest numbers of departed residents or nationals who have joined Sunni militant organisations in the Syria/Iraq conflict, namely Belgium, France, Germany, the Netherlands and the United Kingdom. Specifically, it examines the legal frameworks applicable to (potential) foreign fighters before, during and after travel with a particular focus on criminal prosecutions. Other measures, such as administrative sanctions, are also explored to provide a more comprehensive overview of how the selected States address the foreign fighter phenomenon within their respective jurisdictions. This Chapter shows that criminal law jurisprudence is still far from crystallised and more generally, that even though States on paper try to find a balance in their growing arsenal of measures countering foreign fighters, many of them are of a repressive nature and have received criticism. The authors argue that policy makers should strive for necessary and proportionate measures only, in full respect of international law, including human rights law.
Although the phenomenon of ‘foreign fighters’ is not a new one, a reported recent increase in their numbers and in the range of countries from which they originate, the groups they join, their motivations and subsequent paths have highlighted the complicated nature of this issue and raised concerns across the world. Yet the legal obligations as well as the exact level of legal protection these individuals enjoy once they join an ongoing conflict is not entirely clear. In particular, International Humanitarian Law (IHL), which aims to protect the basic rights of individuals and groups affected by armed conflicts, does not provide specific guidance on what status they might be entitled to and, consequently, on how they should be treated. The present chapter seeks to shed some light on this matter by reviewing the main IHL treaties, their commentaries, judicial decisions rendered by international tribunals and relevant scientific contributions. It will do so by looking at IHL applicable in International Armed Conflicts (IACs) and in Non-International Armed Conflicts (NIACs), as the status these two branches of IHL confer to captured fighters is rather different. Lastly, ‘foreign fighters’ will be distinguished from ‘mercenaries’, on the basis of the legal definition currently in force under the law of armed conflict.
This chapter examines the phenomenon of ‘foreign fighters’ from an International Criminal Law point of view. The author examines whether the mere status of ‘being a foreign fighter’ entails any kind of individual criminal responsibility. Furthermore, the types of international crimes that may potentially be committed by foreign fighters in international and non-international armed conflicts, but also outside of armed conflict scenarios, will be examined. The chapter further discusses the different modes of liability which could be applicable regarding the respective crimes committed by these kinds of actors. Finally, this chapter explores in which national and international fora foreign fighters might be prosecuted for committing international crimes and which conditions need to be met in order for such prosecutions to take place.
Helen Duffy's analysis of international law and practice in relation to terrorism and counter-terrorism provides a framework for analysing the lawfulness of the many legislative, policy and judicial developments which have proliferated since 9/11. Among the many specific issues she addresses are targeted killings and the death of Osama bin Laden, detentions (including Guantanamo Bay), sanctions regimes, surveillance, extraordinary renditions, the prohibition on ‘association’ or ‘support’ for terrorism and the evolving preventive role of criminal law. She also considers the unfolding responses to political and judicial wrongs committed in the war on terror, such as the impact of the courts on human rights protection. While exploring areas of controversy, uncertainty and flux, she questions post-9/11 allegations of gaping holes, inadequacies or transformation in the international legal order and concludes by highlighting characteristics of the ‘war on terror’ and questioning its longer term implications.
Customary International Humanitarian Law, Volume I: Rules is a comprehensive analysis of the customary rules of international humanitarian law applicable in international and non-international armed conflicts. In the absence of ratifications of important treaties in this area, this is clearly a publication of major importance, carried out at the express request of the international community. In so doing, this study identifies the common core of international humanitarian law binding on all parties to all armed conflicts.
Despite numerous efforts since the 1920s, the international community has failed to define or criminalize 'terrorism' in international law. This book first explores the policy reasons for defining and criminalizing terrorism, before proposing the basic elements of an international definition. Terrorism should be defined and criminalized because it seriously undermines fundamental human rights, jeopardizes the state and peaceful politics, and may threaten international peace and security. Definition would also help to distinguish political from private violence, eliminating the overreach of the many 'sectoral' anti-terrorism treaties. A definition may also help to confine the scope of UN Security Council resolutions since 11 September 2001, which have encouraged states to pursue unilateral and excessive counter-terrorism measures. Defining terrorism as a discrete international crime normatively recognizes and protects vital international community values and interests, symbolically expresses community condemnation, and stigmatizes offenders. Any definition of terrorism must also accommodate reasonable claims to political violence, particularly against repressive governments, and this book examines the range of exceptions, justifications, excuses, defences, and amnesties potentially available to terrorists, as well as purported exceptions such as self-determination struggles, 'state terrorism', and armed conflicts. While this book seeks to minimize recourse to violence, it recognizes that international law should not become complicit in oppression by criminalizing legitimate forms of political resistance. In the absence of an international definition, the remainder of the book explores how the international community has responded to terrorism in international and 'regional' treaties, the United Nations system, and in customary law. The final part of the book explores the distinctive prohibitions and crime of 'terrorism' in armed conflict under international humanitarian law.
The regulation of internal armed conflict by international law has come a long way in a very short space of time. Until the early 1990s, there were a minimum of international law rules applicable to internal armed conflict. Today, the situation has changed almost beyond recognition with a healthy body of international law applicable to internal armed conflict. This change has taken place in three principal ways - through analogy to the law of international armed conflict, through resort to international human rights law, and through the use of international criminal law. Each of these approaches stressed its similarity to internal armed conflict or to international humanitarian law. They proved immensely important, filling in what was a more or less blank canvas. However, there are limits to how far they can take us. Today, the canvas is no longer blank and a step back is needed in order to assess the existing state of affairs. Focusing not on the similarities between international and internal armed conflicts or between the various bodies of international law, but on their differences, will allow us to ascertain what further work is in order. It will allow us to identify gaps in regulation and refine relevant rules. It will also force us to re-think our approach to particular issues. Only in this way will we be able to develop the international law of internal armed conflict further.
On 22 February 2012, the Court of Appeal of England and Wales was called on to interpret the definition of the crime of terrorism
as contained in relevant United Kingdom (UK) legislation. When confronted with defence arguments grounded in international
law, the Court denied that attacks by non-state armed groups against governmental armed forces in a non-international armed
conflict may be exempted from being labelled as terrorist acts. The present article contests this assumption. The Court of
Appeal could have interpreted UK legislation in light of the current international legal framework on the definition of the
crime of terrorism in times of armed conflict. In particular, some international conventions on terrorism binding on the UK
establish that all attacks committed in the context of an armed conflict, including non-international armed conflicts, continue
to be governed by international humanitarian law (IHL). IHL provides a definition of the crime of terrorism in times of armed
conflict and the Court should have interpreted the UK domestic legislation consistently with this definition. Such an approach
is also supported by the idea that non-state actors should be encouraged to apply rules of IHL. Marking them as terrorists,
even when they abide by the laws of war, constitutes instead a disincentive to comply with such laws.
This chapter explores the interaction between terrorism suppression and international humanitarian law in the context of domestic terrorism prosecutions. The chapter sketches the relevant terrorism suppression treaty regime and explores the possible interpretations which should be given to regime interaction clauses therein. In particular, this chapter argues that the interaction between terrorism suppression and international humanitarian law dictated by treaty results in both a floor and a ceiling on the exercise of domestic criminal jurisdiction – creating international law limitations on the right of State Parties to criminalise acts of war as ‘terrorism’.
Terrorism was commonplace prior to 9/11: yet the years since then have seen an unprecedented growth in terrorism law. Some of the conventional justifications for terrorism-specific laws are overblown: if such laws are needed, this must be (the author suggests) because of the particular demands of policing and prosecuting this type of crime. Keeping terrorism laws within proper bounds cannot be achieved solely by changes to the definition of terrorism, or by promoting a culture of executive restraint. The solution lies in constitutionalism, where both Parliament and the courts – including the European Court of Human Rights – have been more effective in recent years than they are often given credit for.
By introducing a new ‘debate’ section, the Review hopes to contribute to the reflection on current ethical, legal, or practical controversies around humanitarian issues. This section will expose readers to the key arguments concerning a particular contemporary question of humanitarian law or humanitarian action.
For this first debate, the Review asked two members of its Editorial Board, Professor Marco Sassòli and Professor Yuval Shany , to debate on the topic of equality of states and armed groups under international humanitarian law. Professor René Provost comments on this debate, adding a third dimension to the discussion.
The crucial question is whether it is realistic to apply the current legal regime to non-state armed groups. How can armed groups, with sometimes very limited means and low levels of organization, meet the same obligations as states? What are the incentives for armed groups to respect rules that their opponents have enacted? Why should they respect any rules when the very fact of taking arms against the state already makes them ‘outlaws’?
All participants in this discussion share an aspiration to ensure better legal protection for all those affected by armed conflicts. Professors Sassòli and Shany have agreed to present two ‘radically’ opposed stances, Professor Sassòli maintaining that equality should be reconsidered and replaced by a sliding scale of obligations, and Professor Shany rebutting this assertion. Professor Provost then reflects on the stances put forward by the two debaters and invites us to revisit the very notion of equality of belligerents.
The debaters have simplified their complex legal reasoning for the sake of clarity and brevity. Readers of the Review should bear in mind that the debaters actual legal positions are more nuanced than they may appear in this debate.
The UK Supreme Court judgment in R v Gul presented a unique opportunity for a judicial appraisal of the definition of terrorism contained in section 1 of the Terrorism Act 2000. While the applicant was ultimately unsuccessful in his challenge, the Supreme Court's rejection of the state's argument that reliance on prosecutorial discretion could mitigate certain absurd applications of the section 1 definition of terrorism, eg the labelling of acts of UK or other military forces as terrorist, has potentially wide-raging implications for the UK's counter-terrorism measures. In addition, the powerful obiter dictum arguing in favour of a reform of this definition and a ‘root-and-branch’ review of counter-terrorism legislation is a strong rebuke of recent high profile misapplications of such powers.
The criminal law has assumed a central role in global counter-terrorism efforts since 9/11. This article examines criminal law responses to terrorism at the national, regional and international levels, including the controversial shift over time from treating terrorism as ordinary crime (augmented by sector-specific, transnational treaty offences) to stigmatizing terrorism as a special kind of offence against political life, public order, and international social values. The purposes, promise and limitations of criminal justice approaches to terrorism are explored in this context. It then argues that these developments have brought a bundle of rule of law problems concerning the principle of legality in the definition of offences; the over-extension of liability to capture remote harms; overly punitive approaches to penalties; risks of criminalising freedom of association; executive intrusion into judicial functions; discrimination; and the denial of a fair trial by an independent and impartial court. The interaction between criminal law controls and other branches of international and national law has also given rise to rule of law problems.
States are required to implement grave breaches within their domestic criminal law. The obligation to enact legislation necessary
to provide effective penal sanctions in relation to grave breaches lies at the heart of any meaningful prosecution of grave
breaches of the Geneva Conventions. Knowing what is required of states and understanding the different models of implementation
is essential. Yet, despite its importance, this specific obligation has led a somewhat shadowy existence, often neglected
in state practice and academic research. It is against this background that the present contribution aims to bring into focus
the scope and precise content of this somewhat ambiguously formulated obligation.
A considerable body of international norms, institutions and procedures specifically designed to deal with terrorism has emerged over the last few years. This body of international law increasingly bears the characteristics of a "special regime". At the same time, legal scholars have started to treat terrorism as a "branch" of international law in its own right, both in terms of research and teaching. This article argues that the emergence of a distinct category of "terrorism law" is due to reasons that are very different from those that account for the general trend towards the fragmentation and compartmentalization of international law. It is primarily the result of political pressure by certain powerful states to establish, at the international level, a separate legal system for terrorism that mirrors their own domestic special regimes, so as to give expression to the "international community's" sense of outrage at terrorist acts, stigmatize the perpetrators, and reassure the public. As these objectives can only be achieved if those who fall under the anti-terrorism regime are singled out for particularly harsh treatment, the special treatment model inevitably undermines the fundamental principle that all human beings deserve equal protection of the law.
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