The Legal Regulation of Foreign Terrorist Fighters

Abstract

The right to resort to the use of armed force is linked to the question of the legality or illegality of the conflict in question, as it is governed by what is known as "the law on the use of armed force" (jus ad bellum), or "the law of the Charter," namely the United Nations Charter, which prohibited war while permitting it in only two cases: the case of legitimate self-defense, and the case of collective security under Chapter VII of the Charter. Consequently, we find obligations imposed on the parties to a conflict as soon as it begins, and these obligations form the core of international humanitarian law. These obligations consist of the rules governing the conduct of hostilities, and the rules protecting victims of armed conflicts during the conflict.

The issue of foreign terrorist fighters occupies a prominent place in relations between states given its connection to numerous political, economic, and social dimensions. This issue has become the subject of intense juristic, political, and legal debate, with numerous research papers, studies, and reports issued on the subject, as it constitutes one of the most serious social issues that continues to trouble the international community—being an extremely sensitive problem because it affects all segments of international society. The phenomenon is no longer limited to young people, particularly males, but has extended to include women and children as well. In 2017, when large numbers of foreign fighters were killed in Iraq and Syria, approximately 1,300 children and women surrendered in a single battle alone—the battle to liberate Mosul from ISIS control—and it was the Iraqi forces who dealt with this number.

The term "combatants" in the context of international armed conflicts refers to the right to take direct part in hostilities, and thus a combatant carries a license that essentially amounts to authorization to kill or wound enemy combatants and destroy other enemy targets. This raises the question of whether foreign fighters can be prosecuted for acts committed during the war in which they fight, whether their conduct is considered lawful or in violation of international law and national laws, and what forms of protection international treaties guarantee them—especially since international treaties do not use the term "unlawful combatant" or "unlicensed combatant," which results in differences in granting them the forms of protection established in those treaties.

There is an international convention against the recruitment, use, financing, and training of mercenaries, which defines a "mercenary" as "any person who is specially recruited locally or abroad to fight in an armed conflict, and whose primary motivation for participating in hostilities is the desire for private gain, and who is actually promised material compensation by or on behalf of a party to the conflict, and who is not a national of a party to the conflict nor a resident of territory controlled by a party to the conflict." However, what currently occurs is mostly done under the label of "volunteering," yet these cases violate international law, which may result in further chaos, violence, and unrest, creating a situation that is difficult to address even after reaching a settlement to end the conflict—namely, the legal status of this group.

In an effort to stop the flow of foreign fighters, the Security Council has taken measures under Chapter VII of the United Nations Charter, and some states have adopted measures aimed at deterring foreign fighters who seek to become foreign fighters, including revoking their nationalities and cancelling their travel documents.