Christophe Paulussen’s research while affiliated with T.M.C. Asser Instituut and other places

States have been reluctant to repatriate their foreign fighters and families for a variety of reasons. One of these is of a legal nature, namely that prosecution at home would be too difficult because of a lack of evidence. After a brief overview of possible other options, this chapter will focus on the prosecution of returning foreign fighters before national courts. While acknowledging that securing evidence is and will remain difficult, this chapter points to a number of evidentiary and charging opportunities that show potential in somewhat overcoming this challenge. These could assist prosecutors in focusing on what should have their priority, namely the actual acts committed, such as war crimes and other international crimes. This chapter will also demonstrate that, in addition to membership of a terrorist organisation, there are other charges out there that do not require establishing what the returning foreign fighter has actually done while being abroad. The aim of presenting these in this chapter should not be seen as an endorsement—their critical examination will make this quite clear—but as a demonstration of the fact that the refusal to repatriate and prosecute can only be explained by a lack of political will, and not because of a lack of prosecutorial options.KeywordsRepatriationProsecutionInternational crimesInformation collected from conflict zonesInformation collected from open sources and social mediaPre-crime space

The most prevalent hostilities in the last several decades have not been between states, but between states and organized armed non-state groups. These asymmetrical hostilities often do not resemble conventional armed conflicts, but may consist of hostile engagements of varying intensity, duration, and frequency. Forcible state responses to them need to be flexible and calibrated, but states traditionally are left with only two choices: use force under criminal law standards governed by human rights law, or under International Humanitarian Law applicable during wartime. Neither choice, however, may be satisfactory. On the one hand, criminal law may be inadequate to deal with hostilities of a scale and intensity that exceed those with which law enforcement typically contends. On the other hand, treating hostilities as warfare may provide overly expansive permission to use force and restrict liberty. The chapters in this volume explore whether there is room for hybrid approaches that draw from the most applicable elements of each paradigm in order to construct rules of engagement for operations that straddle the line between crime and war, civilian policing and military combat, and collective and individualized forms of violence.

This article will briefly present a number of international human rights law considerations related to the topic of citizenship stripping of foreign fighters, that is: “individuals, driven mainly by ideology, religion and/or kinship, who leave their country of origin or their country of habitual residence to join a party engaged in an armed conflict”, most notably the conflict in Syria and Iraq. After that, the article will focus on considerations in the context of international humanitarian law, which have been less frequently the subject of academic debate. This contribution concludes that citizenship stripping is not only highly problematic under international human rights law, but also from the perspective of international humanitarian law. The measure – which is likely to constitute cruel, inhuman or degrading treatment or punishment – violates Article 3 Common to the four Geneva Conventions, but it also undermines accountability for international humanitarian law violations already committed and can engender new violations through the non-removal of the suspect from the conflict zone. One of the few positive sides of the connection between the measure and international humanitarian law is that even if nationality is deprived, this will not have an effect on the international humanitarian law obligation to treat that deprived person humanely. In that sense, international humanitarian law provides a welcome – albeit temporary – safety net of decent treatment for people who have become victims of countries’ refusal to take responsibility for their own citizens.

The main theme of this volume of the Yearbook of International Humanitarian Law is the 70th anniversary of the Geneva Conventions. The evolution of these crucial treaties and international humanitarian law more generally comes back in six chapters addressing topics such as sieges, compliance, indiscriminate attacks and non-state armed groups. The second part of the book contains a chapter on the acquittal on appeal of Jean-Pierre Bemba Gombo by the International Criminal Court on the basis of command responsibility for war crimes, as well as an extensive Year in Review describing the most important events and legal developments in the area of international humanitarian law that took place in 2019. The Yearbook of International Humanitarian Law is the world’s only annual publication devoted to the study of the laws governing armed conflict. It provides a truly international forum for high-quality, peer-reviewed academic articles focusing on this crucial branch of international law. Distinguished by contemporary relevance, the Yearbook of International Humanitarian Law bridges the gap between theory and practice and serves as a useful reference tool for scholars, practitioners, military personnel, civil servants, diplomats, human rights workers and students.

On the basis of the case studies of deprivation of nationality and the non-repatriation and possible prosecution of foreign fighters and their families, this article will argue that some counter-terrorism measures, adopted under the justification of protecting national security, will not make these countries, and thus also the individuals under its jurisdiction, safer. Hence, it is wondered whether the notion of national security is both spatially and temporally still in sync with the hyperconnected world in which we live and in which terrorists operate—and whether it is not better to move to the adoption of the broader concept of sustainable security. This article will then turn to the question of whether ordinary citizens (or NGOs litigating on their behalf) could use their existing right to security of person to block those inefficient measures and if not, whether they should be able to operationalise the concept of sustainable security in the human rights context. The article will assert that while the general concept of sustainable security can certainly help at the policy level in encouraging governments to move away from mere national security thinking and thus assist in adopting counter-terrorism measures that provide true, durable security, the situation is different at the level of human rights. The existing right to security of person arguably does not go that far to be able to block the inefficient counter-terrorism measures as discussed in this article and an extension of this right, to a right to sustainable security of person, should not be pursued.

The main theme of this volume of the Yearbook of International Humanitarian Law is weapons law. In several chapters, how International Humanitarian Law (IHL) copes with old and new weapons as well as political developments in regard to military technology is discussed, while in two chapters the significance of non- or less-lethal weapons in peace-keeping and law enforcement operations as well as the legality of lethal autonomous weapons systems under IHL are analysed. Moreover, the volume describes the current status of nuclear deterrence under international law. Another layer is added by examining how IHL influences the programming of automatic target recognition systems using artificial intelligence. The second section of the book contains a historic perspective on the roots of IHL in Europe, which can be traced back to the ninth century, as well as a Year in Review describing the most important events and legal developments in the area of IHL that took place in 2018. The Yearbook of International Humanitarian Law is the world’s only annual publication devoted to the study of the laws governing armed conflict. It provides a truly international forum for high-quality, peer-reviewed academic articles focusing on this crucial branch of international law. Distinguished by contemporary relevance, the Yearbook of International Humanitarian Law bridges the gap between theory and practice and serves as a useful reference tool for scholars, practitioners, military personnel, civil servants, diplomats, human rights workers and students.

In this book, it is explained that despite a current drop in the number of deaths, terrorism should still be considered a serious and widespread problem. However, the responses to this phenomenon are often more problematic from a long-term perspective. With the human rights framework under serious pressure, this edited volume offers a timely, important and critical in-depth analysis of human dignity and human security challenges in the lead up, and in the responses, to current forms of terrorism. It aims to map how human dignity and human security can be secured and how law can constitute a source of trust at a time when Europe and the rest of the world continue to be plagued by terrorism. The authors are both established names and upcoming talent in this fast-changing and exciting field of law. They thoroughly analyse a variety of topical subjects, in more conceptual chapters—for example calling for the humanisation of the security discourse—and in highly practical contributions, in which for instance the Kafkaesque situation in which rendition and torture victim Abu Zubaydah still finds himself today is considered. This book, which focuses on, but is not limited to the situation in Western countries, aims to inspire not only academics—through further theorisation on the sometimes elusive but important concepts of human dignity and human security—but also practitioners working in the field of countering terrorism. It will hopefully convince them (even more) that following a human rights approach will be indispensable in securing human dignity and human security for all. Even—or in fact: especially—in times of terrorism. Christophe Paulussen is a Senior Researcher in the Research Department of the T.M.C. Asser Instituut in The Hague, The Netherlands and Martin Scheinin is Professor of International Law and Human Rights in the Department of Law of the European University Institute (EUI) in Florence, Italy.

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.

This article seeks to map the possible bottlenecks for international legal cooperation in the context of terrorism and/or organized crime. The assumption is that – because of the crime–terror nexus – any obstacle encountered in that area with respect to the suppression of one form of criminality will backfire on the other form as well. After addressing the indefinite concept of terrorism, and its connection with organized crime, we will look at extraterritorial jurisdiction and international cooperation in criminal matters. In the final section, we will offer a number of concluding observations.