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.

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.

scholarly journals The Fight Against the Islamic State andJus in Bello

2016 ◽  
Vol 29 (3) ◽  
pp. 827-852 ◽  
Author(s):  
VAIOS KOUTROULIS
Keyword(s):  
Armed Conflict ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Islamic State ◽  
Humanitarian Law ◽  
Applicable Law ◽  
State Actor ◽  
Scope Of Application ◽  
Geographical Scope

AbstractThis article examines several questions relating to international humanitarian law (jus in bello) with respect to the conflicts against the Islamic State. The first question explored is the classification of conflicts against the Islamic State and the relevant applicable law. The situation in Iraq is a rather classic non-international armed conflict between a state and a non-state actor with third states intervening alongside governmental forces. The situation in Syria is more controversial, especially with respect to the coalition's airstrikes against the Islamic State on Syrian territory. If the Syrian government is considered as not having consented to the coalition's operations, then, according to this author's view, the coalition is involved in two distinct armed conflicts: an international armed conflict with the Syrian government and a non-international armed conflict with the Islamic State. The second question analyzed in the article bears on the geographical scope of application of international humanitarian law. In this context, the article examines whether humanitarian law applies: in the entire territory of the state in whose territory the hostilities take place, in the territories of the intervening states, and in the territory of a third state.

scholarly journals The Geographical Reach of International Humanitarian Law in Transnational Armed Conflict

2021 ◽  
Vol 90 (3) ◽  
pp. 292-311
Author(s):  
Elliot Winter
Keyword(s):  
Armed Conflict ◽  
International Humanitarian Law ◽  
Islamic State ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Geneva Conventions ◽  
Military Presence ◽  
The World ◽  
Suitable Standard ◽  
International Boundaries

Abstract Non-international armed conflict between States and organised armed groups is a reality of warfare. Since the emergence of the 1949 Geneva Conventions, this form of conflict has been regulated by international humanitarian law. However, a subset of this category known as ‘transnational armed conflict’ has seen aggressive proliferation over recent decades as groups such as the Islamic State of Iraq and Syria have taken advantage of the internet and other technologies to expand their reach beyond national frontiers and strike States around the world. This phenomenon has left the geographical extent of international humanitarian law – which has historically relied on State boundaries to determine its ambit – unclear. This article examines the main options for delimiting the geographical reach of the regime in transnational armed conflict. It considers approaches based on international boundaries; ‘hot battlefields’; ‘global application’ and ‘territorial control’ before ultimately concluding that a method based on ‘military presence’ would be the most suitable standard.

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.

Non-State Courts: Illegal or Conditional?

2019 ◽  
Vol 10 (2) ◽  
pp. 240-264
Author(s):  
Pouria Askary ◽  
Katayoun Hosseinnejad
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
State Courts ◽  
International Humanitarian Law ◽  
Islamic State ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Governance System ◽  
Islamic Thought

The Islamic State of Iraq and Levant (Da’esh) has put in place a governance system encompassing judicial structures to justify its grotesque violence. This paper seeks to evaluate the legitimacy of these courts under two complementary perspectives. Whereas establishing courts by an insurgent group during armed conflict should meet the requirements of international humanitarian law (ihl), because Da’esh claims to ground its laws on Islam, these courts should also follow the requirements of Islam as its constituting law. The paper starts with analysing whether international law entitles armed groups to establish their courts. It argues that although such courts are not prohibited at first glance under international law, they should meet the requirements of being regularly constituted while respecting minimum judicial guarantees. Since Da’esh has sought to found its legitimacy on Islam, the paper argues that Da’esh’s interpretation of Islam is not compatible with any major schools of Islamic thought.

scholarly journals Applicability of the international humanitarian law to the fight against the Islamic State during the 2013-2017 conflict in Iraq

2021 ◽  
Vol 200 (2) ◽  
Author(s):  
Krystian Mularczyk ◽  
Karolina Saska
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
International Conflict ◽  
The United States ◽  
Customary Law ◽  
International Humanitarian Law ◽  
Islamic State ◽  
Humanitarian Law ◽  
Geneva Conventions ◽  
Law Of Armed Conflict

The article addresses the applicability of international humanitarian law during the armed conflict in Iraq in 2013-2017 waged against the Islamic State. The paper answers how to classify this conflict against the background of the law of armed conflict. The argumentation for considering it as a non-international conflict with the Islamic State and the Iraqi government as parties is presented. The discussed failure to recognize the Islamic State's status as a state within the meaning of international law does not classify the armed conflict as international. The classification has not been changed by the United States and allied states' intervention, which, as one at the invitation of the Iraqi government, does not mean qualifying the conflict as international. The article also discusses the scope of the norms of international humanitarian law that apply to the conflict in question. It primarily concerns Article 3 that is common to the Geneva Conventions and customary law. Protocol II supplementing the provisions of the Geneva Conventions will not apply as Iraq is not a signatory to it.

18 Terrorism, Counter-Terrorism, and International Humanitarian Law

2020 ◽  
Author(s):  
Saul Ben
Keyword(s):  
Armed Conflict ◽  
Criminal Liability ◽  
Fair Trial ◽  
Legal Issues ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Counter Terrorism ◽  
Terrorist Groups ◽  
Forms Of Violence

This concluding chapter addresses the debate about the coverage, adequacy, and effectiveness of international humanitarian law (IHL) in regulating ‘terrorism’. IHL does not recognize any specific legal categories for, or special regime governing, terrorists and terrorist groups. Rather, the general norms of IHL apply to terrorists according to their conduct. IHL was precisely developed as a kind of exceptional or emergency law comprehensively addressing all forms of violence in armed conflict, including that which is labelled ‘terrorist’ in other areas of law. Particularly relevant to terrorism are the general IHL rules on the classification of violence as armed conflict, the categorization of persons during conflict, targeting, detention, criminal liability, and fair trial. Thus, terrorist and counter-terrorist violence may constitute a non-international armed conflict (NIAC) to which IHL applies if the violence is sufficiently intense and organized. The chapter then considers three key legal issues of particular relevance and specificity to terrorism in armed conflict.

Terrorism

2014 ◽  
Author(s):  
Andrea Bianchi ◽  
Yasmin Naqvi
Keyword(s):  
Armed Conflict ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Homogeneous Body ◽  
Counter Terrorism

This chapter examines the so-called ‘grey areas’ in the application of international humanitarian law (IHL) in the regulation of acts of terrorism and counter-terrorism. It explains that terrorism comes under the regulation of IHL only in limited circumstances, such as when a certain threshold of intensity and organization of the parties involved in an armed conflict can be established. It argues that the contention that the rules of IHL are obsolete or in need of revision vis-à-vis acts of terrorism, is, in all likelihood, unfounded, and explains that IHL is a fairly homogeneous body of precise and detailed rules with a long history. This chapter also offers suggestions on how to address these ‘grey areas’.

scholarly journals Humanitarian engagement under counter-terrorism: a conflict of norms and the emerging policy landscape

2011 ◽  
Vol 93 (883) ◽  
pp. 623-647 ◽  
Author(s):  
Naz K. Modirzadeh ◽  
Dustin A. Lewis ◽  
Claude Bruderlein
Keyword(s):  
Armed Conflict ◽  
The United States ◽  
United Nations Security Council ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Terrorist Organizations ◽  
Counter Terrorism ◽  
Humanitarian Organizations ◽  
Life Saving ◽  
Terrorist Groups

AbstractThis article identifies two countervailing sets of norms – one promoting humanitarian engagement with non-state armed groups (NSAGs) in armed conflict in order to protect populations in need, and the other prohibiting such engagement with listed ‘terrorist’ groups in order to protect security – and discusses how this conflict of norms might affect the capacity of humanitarian organizations to deliver life-saving assistance in areas under the control of one of these groups. Rooted in international humanitarian law (IHL), the first set of norms provides a basis for humanitarian engagement with NSAGs in non-international armed conflict for the purpose of assisting populations under their control and promoting compliance with the rules of IHL. The second set of rules attempts to curtail financial and other forms of material support, including technical training and co-ordination, to listed ‘terrorist’ organizations, some of which may qualify as NSAGs under IHL. The article highlights counter-terrorism regulations developed by the United States and the United Nations Security Council, though other states and multilateral bodies have similar regulations. The article concludes by sketching ways in which humanitarian organizations might respond to the identified tensions.

scholarly journals The Legal Limbo of Counter-Terrorism Criminal Law and Armed Conflict Anti-Regime and Anti-IS (Foreign) Fighters Before European Courts

2020 ◽  
Vol 10 (3) ◽  
pp. 338-364
Author(s):  
Julia Geneuss
Keyword(s):  
Criminal Law ◽  
Armed Conflict ◽  
Islamic State ◽  
Public Prosecution ◽  
Counter Terrorism ◽  
Criminal Investigations ◽  
Full Force ◽  
Syrian Conflict ◽  
Foreign Fighters ◽  
Political Matter

The Syrian conflict has reached public prosecution offices and courts in numerous European states with full force. Criminal investigations and proceedings against so-called foreign fighters returning from Syria as well as against persons who arrived as refugees or migrants and were involved in the conflict as members of non-state armed groups have rapidly increased in recent years. Most of the fighters returning or arriving from Syria to Europe are members of the so-called Islamic State or comparable jihadist groups and are being prosecuted for counter-terrorism crimes. In this contribution, however, the focus will be on those groups for which classification as “terrorist organization” is less clear. This paper takes a closer look at the criminal investigations and proceedings that are being conducted in several European states against anti-regime and anti-IS (foreign) fighters. Do members of these groups also face prosecution under counter-terrorism criminal law after their return to or their entry into the country? Or does counter-terrorism criminal law differentiate between the groups involved in the Syrian conflict? Is this differentiation a legal or a political matter? Who is responsible for the decision? What criteria apply?

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