Foreign fighters and the tension between counterterrorism and international humanitarian law: A case for cumulative prosecution where possible

2021 ◽  
pp. 1-23
Author(s):  
Hanne Cuyckens
Keyword(s):  
Armed Conflict ◽  
Country Of Origin ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Dual Nature ◽  
Armed Group ◽  
Terrorist Organization ◽  
Legal Frameworks ◽  
Foreign Fighters

Abstract Contemporary foreign fighters (FFs) often join so-called dual-nature groups, i.e. groups that can at the same time be qualified as a non-State armed group involved in a non-international armed conflict and a terrorist organization. Both international humanitarian law and counterterrorism (CT) legislation may hence be of relevance when assessing the legality of FF conduct. The CT perspective tends to remain predominant, however. This paper argues that, especially in terms of prosecution, due regard must be paid to both legal frameworks where possible. It also argues that national prosecution in the country of origin seems to offer the best prospects for realizing such cumulative prosecution.

Returning foreign fighters: The case of Denmark

2018 ◽  
Vol 100 (907-909) ◽  
pp. 315-336
Author(s):  
Helene Højfeldt Jakobsen
Keyword(s):  
Criminal Law ◽  
Armed Conflict ◽  
Armed Forces ◽  
International Humanitarian Law ◽  
Islamic State ◽  
Direct Part ◽  
Humanitarian Law ◽  
Armed Group ◽  
Legal Regimes ◽  
Foreign Fighters

AbstractThis article considers which legal regimes apply in cases where a Danish citizen and/or resident returns from Syria or Iraq after having taken part in the armed conflict on behalf of the group known as Islamic State, and continues his/her affiliation with the armed group. The article argues that international humanitarian law currently applies to the Danish territory and that a Danish foreign fighter may continue to be considered as taking a direct part in hostilities after having returned from Iraq or Syria. The article then considers the application of Danish criminal law to returned foreign fighters and argues that Danish counterterrorism laws do not apply to members of the armed forces of an armed group that is party to an armed conflict with Denmark.

The Right to Life and the International Law Framework Regulating the Use of Armed Drones

2020 ◽  
pp. 153-189
Author(s):  
Christof Heyns ◽  
Dapo Akande ◽  
Lawrence Hill-Cawthorne ◽  
Thompson Chengeta
Keyword(s):  
Armed Conflict ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Right To Life ◽  
Legal Challenges ◽  
Drone Strikes ◽  
Legal Frameworks ◽  
The Right

This chapter provides a holistic examination of the international legal frameworks which regulate targeted killings by drones. It argues that for a particular drone strike to be lawful, it must satisfy the legal requirements under all applicable international legal regimes. It is argued that the legality of a drone strike under the jus ad bellum does not preclude the wrongfulness of that strike under international humanitarian law or international human rights law. The chapter then considers the important legal challenges that the use of armed drones poses under each of the three legal frameworks mentioned above. It considers the application of the right to life in armed conflict, particularly in territory not controlled by the state conducting the strike. The chapter then turns to some of the key controversies in the application of international humanitarian law to drone strikes, such as the possibility of a global non-international armed conflict and the question of who may be targeted in a non-international armed conflict. The final substantive section considers the law relating to the use of force by states against non-state groups abroad.

scholarly journals THE LIMITATION OF CYBER WARFARE UNDER HUMANITARIAN LAW (Pembatasan Perang Siber dalam Hukum Humaniter)

2021 ◽  
Vol 3 (1) ◽  
pp. 1
Author(s):  
Laila Almira
Keyword(s):  
Armed Conflict ◽  
International Humanitarian Law ◽  
Cyber Warfare ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Military Operations ◽  
Legal Frameworks ◽  
The Impact

<p><em>States and non-State armed groups are increasingly employing cyber capabilities in their military operations in the digitalization environment today. There is a controversy about how current international legal frameworks, especially International Humanitarian Law (IHL), applies to such conduct in cyberspace, most notably in the context of armed conflict. Because one of the fundamental aims of the IHL is to protect civilians from the impact of armed conflict, it is critical to explore the norms of IHL that regulate such operations. This article will be likely to discuss about cyber warfare in the term of armed conflict. Lastly, the article will be reviewing the rules and principle that applies during the cyber warfare.</em></p><p><em> </em></p>

scholarly journals The Prosecution of Foreign Fighters in Western Europe: The Difficult Relationship Between Counter-Terrorism and International Humanitarian Law

2019 ◽  
Author(s):  
Hanne Cuyckens ◽  
Christophe Paulussen
Keyword(s):  
Armed Conflict ◽  
Western Europe ◽  
International Humanitarian Law ◽  
Islamic State ◽  
Humanitarian Law ◽  
Counter Terrorism ◽  
National Courts ◽  
Take Back ◽  
Tailored Approach ◽  
Foreign Fighters

Abstract 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.

When is a conflict international? Time for new control tests in IHL

2016 ◽  
Vol 98 (903) ◽  
pp. 1019-1041
Author(s):  
Djemila Carron
Keyword(s):  
Armed Conflict ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Armed Group ◽  
Court Of Justice ◽  
International Court

AbstractThis article clarifies the control a State should have over an armed group for the triggering act of an international armed conflict and for the internationalization of non-international armed conflicts in international humanitarian law. It explains the reasons for the distinction between these two types of attribution and details the specificities of each test, with an innovative approach. The author proposes new control tests for both triggering and internationalization, rejecting the effective and overall control tests regarding internationalization proposed by the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia. For instance, regarding the internationalization of a non-international armed conflict, a general and strict control test is proposed. Finally, this article addresses specific issues like the difficult question of the control required for an occupation through an armed group.

scholarly journals Applying Humanitarian Law: A Review of the Legal Status of the Turkey–Kurdistan Workers’ Party (pkk) Conflict

2021 ◽  
pp. 1-34
Author(s):  
Deniz Arbet Nejbir
Keyword(s):  
Armed Conflict ◽  
Legal Status ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Security Forces ◽  
Armed Group ◽  
Geneva Conventions ◽  
Law Of Armed Conflict ◽  
Operational Ability ◽  
Kurdistan Workers Party

Abstract This article assesses the applicability of the criteria for non-international armed conflict to the situation in South-Eastern Turkey. It demonstrates that the Kurdistan Workers’ Party (also known as the pkk), as a party to the conflict, fulfils the three main criteria laid down in conventional international humanitarian law and developed by indicative factors in international jurisprudence for assessing the existence of a non-international armed conflict in the context of Common Article 3 to the 1949 Geneva Conventions: being an organised armed group, having the ability to engage in ‘protracted violence’, and complying with law of armed conflict. It establishes that the pkk qualifies as an organised armed group under responsible command and has the operational ability, structure and capacity to carry out ‘protracted violence’, to respect fundamental humanitarian norms of international humanitarian law and to control territory. The article also ascertains that Turkey is clearly bound by the provisions of the four Geneva Conventions of 1949, including Common Article 3, and customary international humanitarian law. Accordingly, it concludes that the conflict between the pkk and the Turkish security forces qualifies as a non-international armed conflict within the meaning of both Common Article 3 and customary international humanitarian law.

14 Humanitarian Relief Operations

2020 ◽  
Author(s):  
Massingham Eve ◽  
Thynne Kelisiana
Keyword(s):  
Armed Conflict ◽  
Humanitarian Assistance ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Humanitarian Relief ◽  
Armed Group ◽  
Primary Responsibility ◽  
Main Tenet ◽  
Relief Operations

This chapter examines humanitarian relief operations in armed conflict. The main tenet of international humanitarian law (IHL) is that human suffering should be limited, even in an environment where causing death and injury is, to a certain extent, legitimate. In amongst the violence and death that characterizes armed conflict in all its forms, humanitarian relief operations seek to assuage the suffering by providing protection and assistance to persons who are affected by the armed conflict. Humanitarian relief actors not only promote IHL to the parties to a conflict, but they also provide protection and assistance to victims of a conflict. States have the primary responsibility to provide humanitarian assistance to their citizens, to provide them with protection, and to respect and ensure respect for IHL. Non-state armed groups engaged in armed conflict also have a responsibility to uphold IHL and provide assistance to people in the territory which they control. However, where the state or armed group is not able to provide such assistance, humanitarian relief actors and organizations can fill the gap. Therefore, like combatants, civilians, and other protected persons, humanitarian relief personnel have specific protections, obligations, and requirements under IHL.

scholarly journals THE INTERNATIONAL LAW FRAMEWORK REGULATING THE USE OF ARMED DRONES

2016 ◽  
Vol 65 (4) ◽  
pp. 791-827 ◽  
Author(s):  
Christof Heyns ◽  
Dapo Akande ◽  
Lawrence Hill-Cawthorne ◽  
Thompson Chengeta
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Use Of Force ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Human ◽  
Legal Frameworks

AbstractThis article provides a holistic examination of the international legal frameworks which regulate targeted killings by drones. The article argues that for a particular drone strike to be lawful, it must satisfy the legal requirements under all applicable international legal regimes, namely: the law regulating the use of force (ius ad bellum); international humanitarian law and international human rights law. It is argued that the legality of a drone strike under the ius ad bellum does not preclude the wrongfulness of that strike under international humanitarian law or international human rights law, and that since those latter obligations are owed to individuals, one State cannot consent to their violation by another State. The article considers the important legal challenges that the use of armed drones poses under each of the three legal frameworks mentioned above. It considers the law relating to the use of force by States against non-State groups abroad. This part examines the principles of self-defence and consent, in so far as they may be relied upon to justify targeted killings abroad. The article then turns to some of the key controversies in the application of international humanitarian law to drone strikes. It examines the threshold for non-international armed conflicts, the possibility of a global non-international armed conflict and the question of who may be targeted in a non-international armed conflict. The final substantive section of the article considers the nature and application of the right to life in armed conflict, as well as the extraterritorial application of that right particularly in territory not controlled by the State conducting the strike.

What's new in law and case law around the world? Protection of children in armed conflict

2019 ◽  
Vol 101 (911) ◽  
pp. 805-828
Keyword(s):  
Armed Conflict ◽  
Implementation Process ◽  
Case Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Technical Expertise ◽  
Legal Advice ◽  
Advisory Service ◽  
National Implementation ◽  
Legal Frameworks

The ICRC's Advisory Service on International Humanitarian Law aims to provide a systematic and proactive response to efforts to enhance the national implementation of international humanitarian law. Working worldwide, through a network of legal advisers, to supplement and support governments’ own resources, its four priorities are: (i) to encourage and support adherence to IHL-related treaties; (ii) to assist States by providing them with specialized legal advice and the technical expertise required to incorporate IHL into their domestic legal frameworks; (iii) to collect and facilitate the exchange of information on national implementation measures and case law; and (iv) to support the work of committees on IHL and other entities established to facilitate the IHL implementation process.

Part I: Conclusion

2018 ◽  
Author(s):  
Tilman Rodenhäuser
Keyword(s):  
Eighteenth Century ◽  
Civil War ◽  
Basic Principle ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Laws Of War ◽  
Connected Group ◽  
The Individual ◽  
Contemporary Practice

Analysing the development of the concept of non-state parties to an armed conflict from the writings of philosophers in the eighteenth century through international humanitarian law (IHL) treaty law to contemporary practice, three threads can be identified. First, as pointed out by Rousseau almost two and a half centuries ago, one basic principle underlying the laws of war is that war is not a relation between men but between entities. Accordingly, the lawful objective of parties cannot be to harm opponents as individuals but only to overcome the entity for which the individual fights. This necessitates that any party to an armed conflict is a collective, organized entity and not a loosely connected group of individuals. Second, de Vattel already stressed that civil war is fought between two parties who ‘acknowledge no common judge’ and have no ‘common superior’ on earth....

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