Foreign Fighters Under International Law
Creators: name: Kraehenmann, Sandra
Publisher: name: Zenodo
Year: 2014
Subjects: Foreign fighters, foreign terrorist fighters, armed conflict, terrorism, deprivation of citizenship

description: Foreign fighters are not a new phenomenon: the Spanish civil war, the conflict in Afghanistan against the Soviet invasion, the Bosnian conflict in the 1990s, and the armed conflicts in Chechnya and Dagestan all attracted significant numbers of so-called foreign fighters. However, the term and phenomenon of ‘foreign fighter’ gained particular prominence in the aftermath of the 9-11 attacks against the United States of America (USA) on account of the presence of 'foreign fighters' among the ranks of the Taliban and al-Qaeda in Afghanistan. Against this background, 'foreign fighter' became associated and was often treated synonymously with member of international terrorist networks, namely al-Qaeda. As such, 'foreign fighters' are perceived as a major terrorist threat upon return to their countries of origin, i.e. their state of nationality or habitual residence. The fear is that returning 'foreign fighters', who have been trained and experienced in handling weapons and explosives, may plan and carry out terrorist acts or set up new terrorist cells, recruit new members, and provide new funds. Against this background, the unprecedented influx of 'foreign fighters' to the Islamic State (IS) in Syria and Iraq repeatedly made headlines as one of the biggest terrorist threats to Western states since 9-11. On 15 August 2014, the United Nations (UN) Security Council adopted Resolution 2170 to specifically address the phenomenon of ‘foreign terrorist fighters’. The Geneva Academy Briefing on 'foreign fighters' does not provide a general assessment of the policies and measures adopted to deal with the phenomenon of 'foreign fighters', such as counter-radicalisation initiatives or operational measures to improve border security. Instead, looking at the various international legal questions raised by the phenomenon of 'foreign fighters' and the measures taken to combat this phenomenon, the Geneva Academy Briefing proposes to look at the phenomenon of 'foreign fighters' from the perspective of international law, including their status under international humanitarian law, the counter-terrorism regime applicable to 'foreign fighters', and selected human rights issues, such as deprivation of citizenship or limitations to movement. A recurring theme is the conflation between international humanitarian law and the counter-terrorism regime.

While the Briefing uses the term foreign fighter, it also illustrates that the term itself is problematic:  ‘Foreign fighters’ is used to describe individuals who leave their country of origin or habitual residency to join an armed insurgency abroad. Although the term ‘fighter’ conveys the idea that these are individuals who join armed groups and actively participate in fighting, the current usage of the term covers various forms of assistance to, support for or association with armed or terrorist groups. Moreover, ‘foreign fighters’ are ‘foreign’ because they do not habitually live in their destination state, i.e. the conflict state; they travel from abroad to associate with an armed group. Yet, using the term ‘foreign fighters’ as part of counter-terrorism discourse asserts their foreignness not only in relation to their destination state, but also their state of origin or habitual residence. Such ‘othering’, i.e. the process whereby we assert that some people do not belong, is translated into legal measures, namely the revocation of citizenship.