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2016 | Book

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Foreign Fighters under International Law and Beyond

Editors: Andrea de Guttry, Francesca Capone, Christophe Paulussen

Publisher: T.M.C. Asser Press

Part of: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

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About this book

This book offers various perspectives, with an international legal focus, on an important and underexplored topic, which has recently gained momentum: the issue of foreign fighters. It provides an overview of challenges, pays considerable attention to the status of foreign fighters, and addresses numerous approaches, both at the supranational and national level, on how to tackle this problem. Outstanding experts in the field – lawyers, historians and political scientists – contributed to the present volume, providing the reader with a multitude of views concerning this multifaceted phenomenon. Particular attention is paid to its implications in light of the armed conflicts currently taking place in Syria and Iraq.

Andrea de Guttry is a Full Professor of International Law at the Scuola Superiore Sant’Anna, Pisa, Italy. Francesca Capone is a Research Fellow in Public International Law at the Scuola Superiore Sant’Anna. Christophe Paulussen is a Senior Researcher at the T.M.C. Asser Instituut in The Hague, the Netherlands, and a Research Fellow at the International Centre for Counter-Terrorism – The Hague.

Table of Contents

Frontmatter
Chapter 1. Introduction
Abstract
In this introductory chapter, the authors present the different parts and chapters of a book which is one of the first that comprehensively addresses, from various perspectives, a phenomenon that is not new to societies, but that has received increasing attention in recent years and months, particularly because of the conflicts in Syria and Iraq: the issue of foreign fighters, which this book defines as ‘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’. The authors note that the foreign fighters topic will no doubt remain on the political agenda for many years and therefore argue that it is of the utmost importance to deepen our knowledge about the root causes of this phenomenon and to take adequate and rule of law-respecting responses that will bring results in the long term.
Andrea de Guttry, Francesca Capone, Christophe Paulussen

Foreign Fighters: A Multidisciplinary Overview of New Challenges for an Old Phenomenon

Frontmatter
Chapter 2. Foreign Fighters in the Syria and Iraq Conflict: Statistics and Characteristics of a Rapidly Growing Phenomenon
Abstract
This chapter focuses on the statistics and characteristics of foreign fighters of all sides of the conflict in Syria and Iraq, and the reasons for this phenomenon as well as some general policy responses in the countries from which these fighters originate. First, the authors provide a short historical background of foreign fighters and a definition of the term, which is used throughout this book. Next, it describes the rapidly growing numbers and characteristics of these fighters in Syria and Iraq. Finally, adding up the various assessments, the authors arrive at a combined estimate of a total number of more than 30,000 foreign fighters of all sorts for the entire conflict in Syria and Iraq since 2011.
Edwin Bakker, Mark Singleton
Chapter 3. Foreign Fighters Involvement in National and International Wars: A Historical Survey
Abstract
The term ‘foreign fighters’ is difficult to define in a straightforward and exhaustive way, since it is a new phenomenon that has evolved in recent years. In the past the term ‘volunteer’ applied to those nationals and foreigners who joined a threatened government, a non State actor, a minority group seeking to come to power or national or diverse ethnic groups seeking their independence. This placed the emphasis on the individuals: civilians and/or former (or foreign) soldiers. As the historical examples enshrined in this chapter will show, in the past, to a greater extent than today, the difficulty in defining a foreign volunteer, a mercenary or a fighter in a war, civil war, revolution, liberation or independence struggle, lay mainly in the changing structure of institutional powers, State structures and types of governments. The present contribution will provide a survey of the last two and half centuries, starting from the Age of Revolutions, when the independence of the United States and the overthrow of the French monarchy paved the way for contemporary history, until the more recent events resulting from the end of Cold War and the collapse of the Soviet Union in Afghanistan. Through this overview the chapter aims at enhancing the understanding of the range of typologies and experiences that these different kinds of volunteers had in conflicts in foreign lands, in the hope of shedding light on the current challenges posed by this phenomenon.
Marcello Flores
Chapter 4. Foreign Fighters as a Challenge for International Relations Theory
Abstract
Although the existence of foreign fighters is nothing new in the international arena, the phenomenon has not yet triggered a substantial reflection in International Relations (IR) theory. A relatively rare phenomenon before the 1980s, foreign fighters have so far received little attention under IR. This state of affairs began to change in the spring of 2014, when a jihadist armed group that incorporates an unprecedented number of foreign recruits—the Islamic State (IS)—proclaimed a ‘Caliphate’ spanning large portions of Syrian and Iraqi territory and captured global attention by widely circulating to the media all sorts of terror tactics and war crimes it systematically perpetrates. This chapter seeks first of all to bring foreign fighters into an IR analytical focus by identifying those trends that make them a discrete actor category distinct from insurgents and terrorists. Second, it addresses some of the difficulties in grasping the question from an IR theory angle, beginning with transnational mobilisation and State sponsorship. Finally, it reflects on how foreign fighters are involved in State-making/un-making, and how this affects movements in the tectonics of the international system.
Francesco Strazzari
Chapter 5. Foreign Fighters: Motivations for Travel to Foreign Conflicts
Abstract
The phenomenon of foreign fighters predates ISIS. Islamist extremist, far left, far right, and ethno nationalist groups have recruited individuals to fight for their cause overseas. This chapter aims to use empirical evidence to add to the currently understudied body of literature regarding what drives an individual to fight in a foreign conflict. Although this chapter was built on an understanding of the secondary literature, it was primarily informed by a series of interviews carried out with individuals that have personally experienced or intended to engage in foreign fighter travel, from former members of the Provisional IRA through to former members of Jihadist organisations. This chapter suggests that there are three prevailing motivations that drive an individual to want to fight overseas: outrage at what is taking place in the country they wish to travel to, adherence to the ideology of the group they wish to join, and a search for identity and meaning in their personal lives.
Ross Frenett, Tanya Silverman
Chapter 6. The Emerging Role of Social Media in the Recruitment of Foreign Fighters
Abstract
Without recruitment terrorism can not prevail, survive and develop. Recruitment provides the killers, the suicide bombers, the kidnappers, the executioners, the engineers, the soldiers and the armies of future terrorism. The internet has become a useful instrument for modern terrorists’ recruitment and especially of foreign fighters. Online platforms and particularly the new social media (e.g., Twitter, Facebook, YouTube) combine several advantages for the recruiters. The global reach of the Net allows groups to publicise events to more people; and by increasing the possibilities for interactive communication, new opportunities for assisting groups and individuals are offered, along with more chances for contacting them directly. Terrorist recruiters may use interactive online platforms to roam online communities, looking for more ‘promising’ and receptive individuals, using sophisticated profiling procedures. Online recruitment of foreign fighters by terrorist organisations such as the Islamic State (IS) is analysed here as an example of an online multichannel recruitment venue.
Gabriel Weimann
Chapter 7. Analysing the Recruitment and Use of Foreign Men and Women in ISIL through a Gender Perspective
Abstract
ISIL’s declared goals of conquest and the imposition of its form of Islamic law to build a new society requires the group to recruit significant numbers of men and women. In its attempts to recruit foreign men, women and children, ISIL employs highly gendered narratives which exploit cleavages between potential recruits and their home countries, characterise the Syrian Civil War as a war against Muslims and ‘true’ Islam, promise that recruits will fulfil idealised roles as ‘real men’ and ‘real women’, and offer them a central role in building a new society where they no longer face discrimination and abuse and live a ‘holier’ life. This chapter privileges gender in its analysis of ISIL recruitment strategies and narratives targeting foreigners and the experiences of males and females upon entering ISIL. The insights garnered are important for both counter-terrorism and anti-radicalisation efforts.
Dallin Van Leuven, Dyan Mazurana, Rachel Gordon
Chapter 8. The Military Impact of Foreign Fighters on the Battlefield: The Case of the ISIL
Abstract
The so-called ‘foreign fighters’ are the most controversial example of the increasing relevance of transnational actors in global politics and contemporary warfare. The border between domestic and international security is becoming blurred due to the potential adverse impacts of these fighters, mainly in terms of consequences related to their experience on the ground (blowback effects, terrorist attacks, radical propaganda, etc.). Despite a mounting interest in this issue, scarce attention has been devoted to the mechanisms through which these foreign fighters are trained and, above all, the ways in which they spread military innovation and adapt across conflicts and crises. Looking at the case study of ISIL (Islamic State of Iraq and the Levant), this chapter will investigate the patterns of the military involvement on the battlefield of foreign fighters as well as their role in the process of elaboration and diffusion of approaches, tactics and lessons learnt.
Fabrizio Coticchia

The Legal Dimension: The Status of the Foreign Fighters

Frontmatter
Chapter 9. The Status of Foreign Fighters under International Humanitarian Law
Abstract
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.
Emanuele Sommario
Chapter 10. Foreign Fighters and International Criminal Law
Abstract
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.
Robert Heinsch
Chapter 11. Child Soldiers: The Expanding Practice of Minors Recruited to Become Foreign Fighters
Abstract
The phenomenon of conscripting, enlisting or using children to take part in hostilities, as combatants or in other capacities, is not new on the international agenda. For centuries children have been involved in military campaigns, e.g. as child ratings on warships or as drummer boys on the battlefields across Europe. However, in recent years this practice has reached its peak, becoming one of the darkest features of many armed conflicts. In early 2014 UNICEF estimated that the number of children associated with armed forces or groups amounts to 300,000 boys and girls under the age of 18, participating in more than 30 conflicts worldwide. The ongoing armed conflicts in the Middle East are not exempt from this phenomenon. An unknown number of children have joined parties fighting in Syria and Iraq and many of them fall within the category of foreign fighters. The presence of children in the foreign fighters’ ranks has also been ascertained by the UN Security Council in Resolution 2178, which has explicitly called on States to prevent radicalisation to terrorism, address the threat posed by ‘foreign terrorist fighters’, and prevent the recruitment of individuals, including children. The present contribution will seek to address the questions stemming from the unique features of the current events, including the effectiveness of the existing international framework in preventing and prohibiting the recruitment of children, the unprecedented challenges that the international community has to face in order to counter the present situation and the importance of social recovery and reintegration within the communities of origin. To this end the chapter pursues a threefold aim, analysing the current set of norms that governs children’s recruitment and use in hostilities, focusing on how such framework applies to the phenomenon of foreign fighters and discussing the possible routes to foster accountability, prevention and rehabilitation of children in the ranks of foreign fighters.
Francesca Capone
Chapter 12. Armed Opposition Groups’ (and Foreign Fighters’) Abidance by International Human Rights Law: The Issue of Compliance in Syria and Iraq
Abstract
This chapter will examine the extent to which International Human Rights Law (IHRL) regulates the activities of foreign fighters. Its starting point is that IHRL does not address foreign fighters as individual natural persons, but binds them in their quality as members of one of the parties to an internal strife. Their breaches of IHRL, therefore, may trigger the international responsibility of the entity which they are part of. On this assumption, the present investigation will aim at providing an answer to the following issues: (i) to what extent IHRL binds the parties to an internal conflict; (ii) under which conditions human rights violations committed by foreign fighters are attributable to them; and (iii) what legal consequences ensue from such violations. At variance with the general approach adopted in this volume, this chapter will focus solely on foreign fighters siding with armed opposition groups, since in relation to foreign elements fighting with governmental forces these issues are relatively uncontroversial and do not need further discussion. The analysis will be carried out by taking as case studies the internal conflicts ongoing in Syria and Iraq.
Daniele Amoroso

Tackling the Phenomenon of Foreign Fighters at the Supranational Level

Frontmatter
Chapter 13. The Obligations under International Law of the Foreign Fighter’s State of Nationality or Habitual Residence, State of Transit and State of Destination
Abstract
The phenomenon of foreign fighters raises a series of issues under international law for their State of origin (i.e. their State of nationality or habitual residence), the States of transit, and the State of destination (i.e. the State where the armed conflict takes place) at all stages of their mobilization, i.e. before joining an armed conflict, during the armed conflict, and upon their return. First, the question arises whether and to what extent States of origin and States of transit have an obligation under international law to prevent the departure of foreign fighters, including in light of relevant Security Council Resolutions. Moreover, due to the linkages between foreign fighting and terrorism, many States may, and are indeed, using their national anti-terrorism legislation to prevent the departure of foreign fighters. Second, against the background of the current foreign fighters mobilization, some States have taken measures to prevent foreign fighters from returning, namely by revocations of citizenship or exclusion orders. The implications under international law of such measures will be assessed as well. The influx of foreign fighters finally also raises the question what the obligations are of the State of destination, not only to prevent the foreign fighters from arriving, but also as regards the treatment of foreign fighters during an armed conflict.
Sandra Krähenmann
Chapter 14. The Role Played by the UN in Countering the Phenomenon of Foreign Terrorist Fighters
Abstract
This chapter is devoted to investigating the multifaceted activities carried out by the UN to counter foreign fighters. The phenomenon of foreign fighters has captured the attention of the UN system in relation to the recent events taking place in Syria and Iraq. However, the topic is not new on the UN agenda and it has already been tackled within the framework of the UN Global Counter-Terrorism Strategy. This burning issue will be analysed and discussed in light of the activities and initiatives carried out by the Security Council and by the General Assembly as well as by other UN entities such as the Counter-Terrorism Implementation Task Force, the UN Office on Drugs and Crime, the UN Counter-Terrorism Centre, and the UN Security Council (UNSC) Counter-Terrorism Committee. After providing an overview of the UN framework dealing with counter terrorism, this contribution will focus on the two most recent, and both unanimously adopted, UNSC Resolutions, namely 2170 (2014) and 2178 (2014), which attempt to present a holistic approach to the phenomenon of foreign terrorist fighters. In particular the latter Resolution, given its ‘legislative’ nature, triggers many questions concerning the far-reaching powers of the UN Security Council, already exercised through the adoption of Resolution 1373 (2001). Such questions and the criticism towards the alleged ultra vires acts of the UN Security Council will be critically addressed in this contribution.
Andrea de Guttry
Chapter 15. States’ Prevention and Responses to the Phenomenon of Foreign Fighters against the Backdrop of International Human Rights Obligations
Abstract
Preventing and responding to the phenomenon of foreign fighters involves a multitude of potential initiatives. By itself, Security Council Resolution 2178 on foreign fighters contains a wide range of recommendations and binding decisions, triggering the potential for engagement of a broad range of human rights in States’ prevention and responses to foreign fighters. This is further impacted upon by the absence in Resolution 2178 of a comprehensive, concise and human-rights compliant definition of terrorism. This chapter highlights that the issue of human rights compliance in countering foreign fighters does not involve new questions. Drawing directly from the past decade and a half of developments concerning human rights compliance when countering terrorism, the principle of complementarity and mutual reinforcement between security and human rights is seen as being reflected in the United Nations’ Global Counter-Terrorism Strategy and accompanying action, as well as within the Security Council’s Resolution on foreign fighters. The chapter shows that this is also a natural consequence of State’s legal obligations, and reflects the flexibility of international human rights law to accommodate security and public order objectives. It also illustrates that this position is not altered when States implement binding decisions of the Security Council. States will be held to account for implementing action where its acts or omissions involve violation of their human rights obligations, including where a State is left with no choice as to the means of implementation. The chapter asserts that States must therefore be rigorous in ensuring that their implementation of Security Council resolutions on foreign fighters comply in all aspects with their international human rights obligations.
Alex Conte
Chapter 16. The Regional Answers and Governance Structure for Dealing with Foreign Fighters: The Case of the EU
Abstract
The EU had already started to address the foreign fighter threat as early as January 2013, after the EU Counter-Terrorism Coordinator had raised the alarm bells, the EU’s approach having been the blueprint for UN Security Council Resolution 2178. The EU is mobilising a whole range of policies. Following the terrorist attacks in Paris in early 2015, EU leaders set out an ambitious agenda based on a comprehensive strategic vision with three pillars: ensuring the security of citizens¸ preventing radicalisation and safeguarding values and cooperating with international partners. Work is ongoing in different Council formations (in particular Interior, Justice, Foreign Affairs, Education, General Affairs) to operationalise the various measures. In June 2015, Interior Ministers decided to prioritise strengthening the Schengen Framework, to create an internet referral unit at Europol, and to improve information exchange and strengthen the work related to firearms. On the criminal justice side, rehabilitation in the judicial context is urgent. Internationally, assisting Tunisia is a top priority since the recent attacks in Tunis, along with mobilising further capacity building assistance for the region and addressing the situation in Libya. Allocation of resources and strategic decisions are necessary to achieve the ambitious goals.
Gilles de Kerchove, Christiane Höhn
Chapter 17. Collecting and Sharing Intelligence on Foreign Fighters in the EU and its Member States: Existing Tools, Limitations and Opportunities
Abstract
The present chapter examines the tools that can be employed by the European Union and its Member States to collect and, above all, share intelligence on foreign fighters. It starts by framing the phenomenon as a security threat for the EU and its Member States, and by presenting the role that the European Intelligence Community can play in facing this threat. It then discusses briefly the instruments EU Member State intelligence services and law enforcement agencies can employ to produce actionable knowledge concerning returning nationals or residents at the domestic level, and the possibilities for bilateral or multilateral cooperation with similar agencies and services in other Member States. The chapter continues by examining EU instruments establishing and organising Member State cooperation in intelligence gathering and sharing, as well as the EU Institutions, bodies and agencies that play a significant role and/or have ad hoc responsibilities in this area. The chapter concludes by examining the general limitations of these tools, as well as the opportunities they present, for achieving the goal of producing enhanced intelligence on foreign fighters. To a lesser extent, it addresses the privacy and data protection implications these tools entail.
Matteo E. Bonfanti
Chapter 18. Towards Effective Regional Responses to the Phenomenon of Foreign Fighters: The OSCE Toolbox
Abstract
The phenomenon of foreign fighters is not new to OSCE participating States, although the current conflicts in Syria and Iraq have worsened it to the point where it is now perceived as constituting a serious threat to their national security. As a response, the OSCE has started systematic canvassing aimed at mapping out the OSCE-wide perspective on the phenomenon, in order to foster focused solutions. The comprehensive framework towards coherent and sustained actions in preventing and combatting terrorism based on an ‘all-encompassing approach’ to countering terrorism, which the organization has set up over the years, constitutes the blueprint against which such solutions are envisaged. It is crystallised in the OSCE 2012 Consolidated Framework for the Fight against Terrorism that contains a rule-of-law based toolbox putting forward ready-made responses to be adapted and tailored to the specific terrorist threats. OSCE executive structures are playing a decisive role in facilitating such adaptation to the threat posed by foreign fighters. This chapter provides an overview of the measures undertaken by the OSCE in responding to the phenomenon of foreign fighters taking part in hostilities within and outside the OSCE area. It also reflects on the possible role of the organisation—as the largest United Nations Charter Chapter VIII regional organisation—to act as a regional platform for sharing good practice, information, and challenges on foreign fighters in synergy with efforts being conducted by other international and regional actors.
Annalisa Creta
Chapter 19. The African Union and the Phenomenon of Foreign Fighters in Africa
Abstract
As the pre-eminent regional organisation entrusted with the maintenance of peace and security in Africa, the African Union (AU) has been engaged with the development of legal and normative instruments as well as mechanisms for addressing complex security challenges confronting the continent. It would appear however that the AU is lagging behind on developing relevant instruments and mechanisms for addressing one particular threat which has recently emerged, namely, the phenomenon of people participating in armed conflicts in countries of which they are not nationals or habitually resident, i.e. foreign fighters. Although Africans have joined armed conflicts in countries of which they are non-nationals and nationals of other countries have been involved in conflicts on the African continent, the focus of the Continent’s collective security organisations, i.e. both the Organisation of African Unity (OAU) and its successor the AU, has largely been on mercenaries and in more recent times, those foreign fighters who engage in acts of terrorism. The aim of this chapter is twofold: first, to discuss whether and to what degree the general provisions for peace and security may be used to address the issue of foreign fighters, and second, to look at additional measures that can be instrumental to strengthen the fight against terrorism and extremism in the region.
Linda Darkwa

Tackling the Phenomenon of Foreign Fighters at the National Level

Frontmatter
Chapter 20. National Responses in Select Western European Countries to the Foreign Fighter Phenomenon
Abstract
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.
Christophe Paulussen, Eva Entenmann
Chapter 21. How Western Non-EU States Are Responding to Foreign Fighters: A Glance at the USA, Canada, Australia, and New Zealand’s Laws and Policies
Abstract
The issue of foreign fighter mobilisation to the Syrian conflict (and more recently Iraq) is the biggest security challenge for Western nations since the September 11th attacks. This is the first time since those events that governments all over the world including the West are beginning to rethink their legal regimes and reforms related to how they deal with this particular problem set. This chapter will look at ‘Five Eyes’ countries except for the United Kingdom (‘Five Eyes’ refers to the intelligence alliance amongst these countries). It will explore the United States’, Australia’s, Canada’s, and New Zealand’s responses to the unprecedented foreign fighter phenomenon over the past few years. These four case studies will provide a comparative perspective that will help show how they are changing in either similar or unique fashions. This will allow insights to be ascertained into a broad range of ways to deal with this issue on a legal level spanning different countries’ sizes and mobilization sizes. The organization of this chapter will include: first, an introduction that discusses the issue of foreign fighters and Syria and how that is affecting governments in these particular countries and the threats they perceive for if and when individuals return home. This will follow with case studies looking at each country’s particular responses from the United States to Australia to Canada to New Zealand. Finally, there will be a concluding section that provides a comparative look at these four different countries’ approaches.
Aaron Y. Zelin, Jonathan Prohov
Chapter 22. MENA Countries’ Responses to the Foreign Fighter Phenomenon
Abstract
Since the beginning of the Syrian civil war in 2011, over 11,000 foreign fighters from across the Middle East and North Africa (MENA) region have joined the ranks of Sunni militant groups in Syria and Iraq. Initially, MENA States had a lax approach to fighters travelling abroad. Some States opposed Bashar al-Assad’s regime, and thus at least implicitly supported this flow of fighters, while other States hoped that allowing their militants to go abroad would alleviate domestic security pressures. But as jihadist groups’ dominance over the rebel landscape in Syria became apparent, MENA States’ policies began to shift. These countries now have employed a number of responsive strategies, including counter-messaging designed to curb recruitment, travel restrictions, intelligence sharing, targeted counterterrorism policies, and arrest and prosecution once foreign fighters come home. This chapter examines the efforts of five MENA States, each a significant source of foreign fighters: Tunisia, Saudi Arabia, Morocco, Jordan, and Lebanon. Essentially, the growing challenge posed by foreign fighters took many MENA States by surprise, forcing these countries to piece together hurried and ad hoc policies. The search for best practices in the region will continue.
Daveed Gartenstein-Ross, Bridget Moreng
Chapter 23. Foreign Fighters and the Deprivation of Nationality: National Practices and International Law Implications
Abstract
While most people experience their nationality as a fixed and integral feature of their identity, it is not necessarily a permanent or immoveable characteristic. Indeed, most States’ nationality laws feature a set of rules—alongside those which elaborate the conditions for acquisition of nationality—which stipulate the grounds upon which a national can lose or be deprived of that nationality. With concern rising about international terrorism and now the phenomenon of foreign fighters, governments have been rediscovering nationality policy as a potential instrument in the protection of their national security interests. This chapter highlights a range of States’ perspectives on the deprivation of nationality and discusses recent developments in national-level debate and/or policy around the deprivation of nationality from foreign fighters. It then goes on to explore the international law implications of an expanded use of such deprivation powers. In particular, the chapter looks at the international law prohibition of arbitrary deprivation of nationality and what this requires of States that would seek to deprive a person of nationality in response to their engagement in an armed conflict in a third country. It discusses how international legal standards relating to the prevention of Statelessness restrict States’ powers of deprivation of nationality and asks what the significance is of such restrictions for the enjoyment of nationality by dual nationals. Finally, the chapter also assesses to what extent different approaches to the deprivation of nationality from foreign fighters pose a challenge from the perspective of the international law principle of non-discrimination.
Laura Van Waas
Chapter 24. Caught in the Crossfire: The Impact of Foreign Fighters on Internally Displaced Persons, Asylum Seekers and Refugees from Syria and Iraq
Abstract
Foreign fighters, heading to and returning from Syria and Iraq, are considered a global threat by the international community and governments worldwide (Council of the European Union 2014. UNSC Resolution 2178 2014, p. 1). Foreign fighters further exacerbate the violence and the human rights abuses perpetrated both by the regime and the non-State armed forces, hampering the precarious human security of civilians and ethnic minorities, leading to flows of Internally Displaced Persons (IDPs), refugees and asylum seekers. This chapter seeks to explore the complex, multifaceted links between IDPs, refugees and asylum seekers, and foreign fighters in three main geographical areas: Syria and Iraq, their neighbouring countries and the European Union. It analyses the reasons why people in need of protection may be obliged to use the same routes as foreign fighters and the relevant implications. In particular, it focuses on the impact that the actions of foreign fighters on the one hand, and the policies to detect them on the other hand, may have on the human rights of IDPs, refugees and asylum seekers. This chapter further explores the possible pushbacks against refugees and asylum seekers due to the fear of foreign terrorist fighters in mixed migration flows. Finally the contribution considers UNSC Resolution 2178 (2014) requiring States to ensure that refugee status is not abused by foreign terrorist fighters and the extent to which it follows UNSC Resolution 1373 adopted following the 9/11 attacks. This chapter concludes with some remarks, which may be instrumental in reducing the impact that both foreign fighters and State measures to counter them, may have on IDPs, refugees and asylum seekers.
Francesca Vietti, Mike Bisi
Chapter 25. Concluding Remarks
Abstract
In this concluding chapter, the authors summarize the main findings of the book, including answers to such questions as to why individuals leave their countries of origin, which is of the utmost importance if one seeks to respond effectively to this phenomenon. The authors also note, among other things, that there is no gap in international law when it comes to regulating foreign fighters, meaning that the norms enshrined in treaty as well as customary law provide, in principle, an effective and sound framework to deal even with an undefined and multifaceted phenomenon. However, problems might arise because of the further obligations imposed upon States by UN Security Council Resolution 2178 (2014), which supplemented the existing framework with an additional layer. Finally, the authors conclude that it is crucial to promote the coordination of plans, including sharing information and lessons learned, as well as to invest, to the maximum extent possible, in capacity building, prevention, education and reintegration. Instead of erecting a wall between ‘us’ and ‘them’, all the efforts undertaken must aim at building a bridge and fostering a culture of inclusion, solidarity, dialogue and trust among societies, countries and religions.
Andrea de Guttry, Francesca Capone, Christophe Paulussen
Backmatter
Metadata
Title
Foreign Fighters under International Law and Beyond
Editors
Andrea de Guttry
Francesca Capone
Christophe Paulussen
Copyright Year
2016
Publisher
T.M.C. Asser Press
Electronic ISBN
978-94-6265-099-2
Print ISBN
978-94-6265-098-5
DOI
https://doi.org/10.1007/978-94-6265-099-2

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