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Foreign Fighters Under International Law ACADEMY BRIEFING No. 7 Foreign Fighters under International Law October 2014 Geneva Academy of International Humanitarian Law and Human Rights Geneva Académie de droit international humanitaire et de droits humains à Genève Academ The Academy, a joint centre of ISBN: 978-2-9700866-6-6 © Geneva Academy of International Humanitarian Law and Human Rights, October 2014. Acknowledgements This Academy Briefing was researched and written by Sandra Kraehenmann, Research Fellow at the Geneva Academy of International Humanitarian Law and Human Rights (Geneva Academy). The Geneva Academy would like to thank all those who commented on a draft of the Briefing, in particular Ambassador Stephan Husy, Swiss Coordinator for International Counter-Terrorism; Professor Andrea Bianchi, Professor of International Law, Graduate Institute of International and Development Studies; Pascal-Hervé Bogdañski, Senior Legal Adviser, Counterterrorism, Coordination Office, Swiss Federal Department of Foreign Affairs (DFAE); and Emilie Max, Legal Officer, Directorate of International Law, DFAE. The Geneva Academy would also like to thank the DFAE for its support to the Academy’s research on foreign fighters under international law. Editing, design, and layout by Plain Sense, Geneva. Disclaimer This Academy Briefing is the work of the author. The views expressed in it do not necessarily reflect those of the project’s supporters or of anyone who provided input to, or commented on, a draft of this Briefing. The designation of states or territories does not imply any judgement by the Geneva Academy or DFAE regarding the legal status of such states or territories, or their authorities and institutions, or the delimitation of their boundaries, or the status of any states or territories that border them. ACADEMY BRIEFING No. 7 Foreign Fighters under International Law Foreign Fighters under International Law 1 Contents Introduction _____________________________________________________________________________________________________________________________________________________________________________________________________________________________________3 A. The phenomenon of foreign fighters ______________________________________________________________________________________________________________________________________________________________5 1. Terminology________________________________________________________________________________________________________________________________________________________________________________________________________________________5 2. Foreign fighter mobilization ________________________________________________________________________________________________________________________________________________________________________________________7 Recruitment __________________________________________________________________________________________________________________________________________________________________________________________________________________7 The scope of the phenomenon; typical states of origin and destination _________________________________________________________________________________8 Foreign fighter mobilization for Syria _____________________________________________________________________________________________________________________________________________________________9 3. Foreign fighters’ influence in an armed conflict ________________________________________________________________________________________________________________________________________ 12 4. ‘Blowback’: Foreign fighters as a terrorism threat ___________________________________________________________________________________________________________________________________ 12 B. The status of foreign fighters in armed conflicts _______________________________________________________________________________________________________________________________ 15 1. Typology of armed conflicts under IHL ___________________________________________________________________________________________________________________________________________________________ 15 2. Foreign fighters versus mercenaries ________________________________________________________________________________________________________________________________________________________________ 16 3. Status of foreign fighters in an IAC ___________________________________________________________________________________________________________________________________________________________________ 17 Foreign fighters as combatants _____________________________________________________________________________________________________________________________________________________________________ 17 Foreign fighters as civilians ______________________________________________________________________________________________________________________________________________________________________________ 18 4. Status of foreign fighters in a NIAC __________________________________________________________________________________________________________________________________________________________________ 19 Foreign fighters in NIACs involving a multinational force _______________________________________________________________________________________________________________ 20 5. Transfer of foreign fighters:non-refoulement _ _____________________________________________________________________________________________________________________________________________ 20 C. Terrorism and international humanitarian law ______________________________________________________________________________________________________________________________________ 23 1. Characterization of fighters, armed groups, and their acts ________________________________________________________________________________________________________________ 23 2. The prohibition of terrorist acts in IHL and international criminal law __________________________________________________________________________________________ 24 Prohibition of attacks with the primary purpose of spreading terror _______________________________________________________________________________________ 24 Generic prohibition of ‘acts of terrorism’ __________________________________________________________________________________________________________________________________________________ 26 Features of ‘terrorism’ in an armed conflict under IHL_____________________________________________________________________________________________________________________ 30 D. Foreign fighters under the UN counterterrorism framework ___________________________________________________________________________________________________ 33 1. International conventions to combat terrorism __________________________________________________________________________________________________________________________________________ 33 Exclusion clauses for acts governed by IHL __________________________________________________________________________________________________________________________________________ 35 2. UN Security Council measures ___________________________________________________________________________________________________________________________________________________________________________ 36 Sanctions regime against al-Qaeda and its associates: Resolution 1267 (1999)_____________________________________________________________ 36 General counterterrorism regime: Resolution 1373 (2001) ____________________________________________________________________________________________________________ 39 ‘Foreign Terrorist Fighters’ in Syria and Iraq: Resolution 2170 (2014) ____________________________________________________________________________________ 41 Legislation to prosecute ‘foreign terrorist fighters’: Resolution 2178 (2014) _______________________________________________________________________ 42 E. Foreign fighters under the European counterterrorism framework __________________________________________________________________________________ 45 1. The EU Framework Decision on Combating Terrorism _________________________________________________________________________________________________________________________ 45 2. Council of Europe counterterrorism treaties ______________________________________________________________________________________________________________________________________________ 46 F. State of nationality or habitual residence of foreign fighters __________________________________________________________________________________________________ 49 1. Preventing the movement of fighters_______________________________________________________________________________________________________________________________________________________________ 49 The law of neutrality ______________________________________________________________________________________________________________________________________________________________________________________________ 49 Non-intervention _____________________________________________________________________________________________________________________________________________________________________________________________________ 50 2. Prosecution of foreign fighters ____________________________________________________________________________________________________________________________________________________________________________ 51 3. Diplomatic protection of captured foreign fighters __________________________________________________________________________________________________________________________________
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