Status of Foreign Fighters under international and national law

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1 Status of Foreign Fighters under international and national law Foreign fighters and the question of structural shifts caused by current crises Role of the Security Council: Security council resolution 2178 ( legislative ) on Foreign Terrorist Fighters - no involvement in use of force against ISIS in Syria Foreign fighters as armed non state actors a double challenge to States monopoly to use force: monopoly to use force within state monopoly to use force across state borders I. Phenomenon of Foreign Fighters Who is a foreign fighter? Simply put, a foreign fighter is an individual that leaves his or her country of origin or habitual residence to join an insurgent group in a conflict abroad for various reasons, such as ideology or religious affinity. They are not motivated by financial gains, so they are quite different than mercenaries. Two caveats: - Different degrees of foreignness - Question of co-ethnic foreign fighters Foreign fighters in a historical perspective - Spanish civil war - Starting with post-soviet invasion Afghanistan, foreign fighters have been a salient feature of virtually all conflicts in the Muslim world Despite the limited empirical research on foreign fighters, some tentative features of Muslim foreign fighter mobilizations: - Largely an Arab and North African phenomenon - Various push and pull factors, varying across conflicts and countries of origins. Yet, at least before the mobilization for Syria, Muslim foreign fighter mobilization always peaked when non-muslim countries intervened in Muslim countries. - Current and former foreign fighters play an important role in recruitment. - Impact of foreign fighter in an armed conflict is difficult to assess, but they tend to render a conflict more intractable, e.g. by contributing to rebel-infighting or radicalization of the armed groups. - Danger to overstate the influence of foreign fighters: to date, the overall number of foreign fighters in an armed conflict has always accounted only for a relatively small percentage of the total numbers of fighters. II. The foreign fighter mobilization for Syria and Iraq Quantitative difference compared to earlier foreign fighter mobilizations - Unprecedented scale and pace: It is most likely the conflict where most foreign fighters have been active at the same time. - Geographic breadth of mobilization: Reportedly there are foreign fighters from at least 90 countries. 1

2 - The conflict attracted more Western foreign fighters than all the armed conflicts during the last 20 years combined. Qualitative difference compared to earlier foreign fighter mobilizations - No typical foreign fighter profile: both genders, range of socioeconomic, educational, professional and ethnic backgrounds, all age groups. - Mixed push and pull factors - Variations across countries of origins - Despite the diversity in profiles, some common threads that distinguish the current foreign fighter mobilization in terms of quality: Would be recruits are often in their teens or early 20s, i.e. in a transitional stage; most do not have any previous association with radicalism nor manifested a previous interest in politics or religion: looking for a cause rather than aiming to realize a particular political or religious idea. Increasingly complex: foreign fighters joining militia to fight against ISIS III. Linkages foreign fighters terrorism The foreign fighter mobilization for post-soviet invasion Afghanistan spawned al- Qaida and like-minded groups all over the world: Foreign fighter mobilizations serve as an important recruitment pool for international terrorist groups. Fear of blowback: returning foreign fighters may become involved in acts of terrorism back home, or set up new terrorist cells, benefitting from the connections they made while abroad. Most foreign fighters never get involved in acts of terrorism outside an armed conflict zone. Empirical research on Western foreign fighters suggest that no more than one in nine eventually becomes involved in domestic terrorism plots but this number is an average, hinging on many factors, and cannot just be extrapolated and applied to a specific conflict and a specific number of foreign fighters: the rate may be higher or lower, depending for example on the strategy adopted by the groups on the ground or whether Western States have intervened in the conflict tin one way or the other. The involvement of former foreign fighters sharply increases the probability of success of terrorist plots and their lethality. Moreover, such a risk may also only manifest itself in the long-term. The foreign fighter experience is still the strongest predictor of individual involvement in domestic acts of terrorism that we know, but we need to be careful not to overblow the threat posed by foreign fighter. IV. Foreign Fighters under International Law: the foreign terrorist fighter under Security Council resolution 2179 NB: irrelevance of nationality under IHL for NIACs 2

3 a. Security Council resolution 2178: overview A general regulatory framework setting out a series of measures to be taken by States to prevent and suppress foreign terrorist fighters. Definition of foreign terrorist fighters set forth in the resolution: foreign terrorist fighters are individuals who travel to a state other than their States of residence or nationality for the purpose of involvement in terrorist act, providing or receiving terrorist training, including in connection with an armed conflict. All foreign terrorist fighters shall disarm and cease all terrorist acts and participation in an armed conflict. States shall suppress and prevent the recruitment, organization, transport and equipment of such foreign terrorist fighters, including by preventing their departure, entry and transit. To do so, amongst others, the Security Council requests states to have the necessary legislation to prosecute a) Travel or attempts to travel to a state other than their state of nationality or permanent residency for the purposes of involvement in terrorist acts, including receiving terrorist training; b) the willful provision or collection of funds, directly or indirectly, to be used to finance such travel; c) the organization or other facilitation, including, but not limited to recruitment, of such travel These are entirely new offenses which did not exist in any previous universal treaty on terrorist offenses. b. Ambiguities in the resolution Concept of foreign : the Security Council s definition of foreign Terrorist Fighters conveys the idea that these fighters are foreign because they travel abroad to a State other than their State of nationality or residence. - Meaning of residency - Interplay residency and state of nationality: what nationals who have been residing abroad for years and decide to return? What about dual nationals? Various interpretations seem possible: Object an purpose of the resolution calls for an extensive interpretation that would cover nationals returning from abroad. Yet, such an approach would have to be carefully balanced with their right to return to their own country, which can only be restricted in exceptional circumstances. One may read Security Council resolution 2178 more restrictively to cover only those who travel to a State which is neither their State of nationality nor their State of residency. Yet, when groups operate across state boundaries, such an interpretation may lead to arbitrary results. E.g. Syrian nationals living in Europe who attempt to travel to Syria to join ISIS would not be covered, yet they would if they attempted to join ISIS in Iraq. Moreover, it seems difficult to prove their intended final destination at the moment of departure. Concept of terrorist : It is problematic that the Security council sets out a series of far reaching measures in relation to terrorism without defining terrorism: - Not limited to international terrorism 3

4 - Implementation will depend on domestic definitions of terrorism, which can be wide and vague. - foreign terrorist fighters are described as people who travel abroad with a terrorist intent. Yet, it is unclear how one is to distinguish a person who travels abroad for legitimate purposes from a person who travels abroad with a yet to manifest terrorist purpose, without resorting to ethnic profiling. Indeed, the implementation of Security Council resolution 2178 may lead to de facto prohibitions to travel to certain countries or areas known for terrorist activities and neighboring countries. - This is indeed the approach taken by the Australian Foreign Fighter Bill adopted in late Under the bill, a person who enters, or remains, in an area of a foreign country that is declared by the Ministry of Foreign Affairs an area where a listed terrorist organisation is engaging in hostile activity, commits an offence, unless that person enters, or remains, solely for legitimate purposes, such as humanitarian aid, journalism or visiting family members. Al-Raqqa province in Syria and Ninewa province in Iraq have been declared such areas. - the intended effect of the resolution is to criminalize travelling or attempting to travel abroad to join armed groups that are considered terrorist. In doing so, the resolution unreflectively extends the concepts of terrorism to situations of armed conflict and presumes that engaging in acts of violence with at least some armed groups is an act of terrorism or an act related thereto. While this has often been the position under national law, so far this has not been the case under international law: Pursuant to the principle of belligerent equality, all parties to a conflict have the same rights and obligations under international law. If the international regime governing terrorism is to criminalize mere participation in an armed conflict (possibly with certain groups) as a terrorist-related offence, this would undermine the fundamental principle of belligerent equality. All universal conventions on specific acts of terrorism that relate to acts that may occur during an armed conflict include a clause excluding acts governed by international humanitarian law. One of the reasons why there is no comprehensive convention on terrorism is due to the question whether and to what extent mere participation in hostilities and acts by armed groups that are lawful under IHL may be covered or not by under such a convention. - Possible solution to interpret Security Council resolution 2178 as applying to acts that are prohibited under international humanitarian law. Yet, it seems difficult to prove that a person is travelling abroad to join an armed group with the purpose of committing such acts. - Another possible approach may be to limit the resolution to individuals who intend to travel to terrorist groups: resolution 2178 expressly refers to foreign terrorist fighters recruited by ISIS, al-nusra and other al- Qaeda associates listed under the 1267 sanctions regime. Yet, other groups may be included, depending on States individual designations of groups 4

5 as terrorist, e.g. the PKK is still a designated terrorist groups in many countries and also on the EU list. V. Status under national law Fighting with an armed group not an offense per se in most countries, but foreign fighters may face criminal charges by two main avenues: - Crimes under ordinary criminal law - Crimes under anti-terrorism legislation, especially when joining terrorist groups. Most national counter-terrorism laws already covered the kind of conduct envisaged in Security Council resolution Some states recently broadened the extraterritorial reach of their law, e.g. to include permanent residents or to include preparatory acts committed abroad. New measures to prevent prospective fighters from leaving, and increasingly to prevent them from coming back - Broader powers to revoke the travel documents of citizens and residents (France, Australia, Malaysia) - Remove citizenship of dual nationals - UK: temporary exclusion orders Such measures may fall short not only of human rights obligations but also the duty to cooperate to prevent the flow of foreign fighters provided for under Security Council resolution VI. The way forward? We need to think about how to deal with genuinely repentant and disillusioned returnees beyond punishment under anti-terrorism laws, e.g. to have alternatives beyond jail (Aarhus model in Denmark). Why? - Recruitment of young foreign fighters follows a similar dynamic as recruitment of child soldiers also an issue of protection; - Gendered interpretation of those who leave: young men as foreign terrorist fighters young women as victims - Returnees may provide intelligence - Returnees may play an important role in creating counter-narratives to ISIS propaganda. - An overly repressive approach risks cancelling out the parallel preventive approaches need to think about the balance between the two. Criminalization of attempted travel by foreign terrorist fighters what is the essence of the conduct to be criminalized? - Whose interests to be protected? - Danger to their home country or danger to the destination state? - Linkages to armed conflict is foreign fighting inherently terroristic? or to be prohibited on other grounds? 5

6 Foreign fighters are not a stand-alone phenomenon, but they are active in an armed conflict any response to foreign fighter mobilization needs to be contextualized. - Dynamics of the armed conflict influences mobilization; - Importance for counter-messaging. E.g. in the case of Syria (perceived) ignorance or side-lining of the atrocities committed by the Assad regime or Shia militia may further increase the appeal of groups such as ISIS. 6