Prior to 2014, “foreign fighters” and “terrorists” represented separate categories of individuals that fell under the jurisdiction of different international law regimes, namely international humanitarian law and the international counter-terrorism regime. However, after the landmark UNSC Resolution 2178 (2014) was passed in response to the influx of third-state fighters in support of ISIL and Al-Qaeda in Iraq and Syria, the previously disparate elements were merged together under the definition of “foreign terrorist fighter”.[1] The definition of “foreign terrorist fighters” in its present iteration dangerously conflates two separate international legal regimes and holds serious implications for the application of international humanitarian law and international human rights law.
WHAT ARE FOREIGN FIGHTERS?
Whilst no formal legal definition exists for a foreign fighter under IHL,[2] the Geneva Academy defines the term as: “an individual who leaves his or her country of origin or habitual residence to join a non-state armed group in an armed conflict abroad and who is primarily motivated by ideology, religion, and/or kinship”. This commonly includes then fighters fighting in a non-international armed conflict specifically as foreigners fighting on the side of the government are not classified as “foreign fighters”. This definition creates a distinction between “foreign fighters” and “international terrorists” who “specialize in out-of-area violence against non-combatants”.[3] While this by no means discounts the possibility that these foreign fighters might subsequently be involved in the recruitment, training (whether directly or indirectly) and/or execution of terrorist attacks in their home countries, it does not conflate foreign fighters with foreign terrorist fighters.[4]
WHAT ARE FOREIGN TERRORIST FIGHTERS?
The UNSC Resolution 2178 (2014), went beyond its predecessor resolutions[5] to formally define foreign terrorist fighters (FTFs) as “individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection with armed conflict.”[6]
Despite affirmations in the perambulatory clauses that the obligations imposed in the Resolution should be met in accordance with other international obligations (such as those under IHL and IHRL[7]) the inclusion of “in connection with armed conflict” widens the scope of the definition enough to encroach on areas under the jurisdiction of IHL. By failing to limit the acts condemned (i.e.“terrorist acts”) to those specifically prohibited under IHL (such as attacking civilians and civilian objects, executing persons hors de combat, and taking hostages[8]), the Resolution allows for acts that may otherwise be lawful in an armed conflict to also be considered “terrorist acts”.
This is a deviation from the norm and can be considered a willful omission given that other counter-terrorism treaties that make reference to armed conflict have always explicitly excluded acts covered by IHL. For example, the Terrorist Bombing Convention of 1997 and the Nuclear Terrorism Treaty 2005 pointedly exclude jurisdiction over “activities of armed forces during an armed conflict as those terms are understood under international humanitarian law”.[9]
Some may argue non-state actors are not included in the definition of “armed forces” as specified by the Conventions, as the term is only defined in an international armed conflict. However, it should be interpreted as applicable to all, including non-state actors. This is because the provision uses the term ‘military forces of a State’ when referring only to a State’s armed forces. Moreover, Common Article 3 applicable in non-international armed conflicts uses the term ‘members of armed forces’ referring to the forces of a State or non-State group. It should be stated, however, that the UNSC Resolution 2178 (2014) is not unique in its exclusion of IHL provisions. Its predecessor resolutions, UNSC Resolution 1373[10] (2001), one of the most central binding instruments in the international counter-terrorism regime, also lacks an exclusion clause that could accommodate acts permissible under IHL. However, Resolution 2178 is the first UNSC resolution that defines FTFs, thus formally pushing the counter-terrorism regime into the boundaries of IHL.
WHAT ARE TERRORIST ACTS?
The problem with conflating acts of terrorism with lawful acts under armed conflict is that no universal definition of terrorism exists under the international terrorism regime. For all intents and purposes, the definition of terrorism under the international counter-terrorism regime can be reduced to acts “intended to cause death or serious bodily injury, or extensive damage to property, when the purpose of such act, by its nature or context, is to intimidate a population, to provoke a state of terror in the general public, a group of persons or particular persons for political purposes, or to compel a government or an international organisation to do or abstain from doing any act”[11] or being part of or having an affiliation with a proscribed organization or individual proscribed under the UNSC Resolution 1267 Al-Qaeda/ISIL Sanctions List. These metrics however are not universally accepted and as a result the grounds for being placed on the UNSC Sanctions List can vary drastically in practice.
Foreign fighters who may have participated in an armed conflict on behalf of Al-Qaeda or ISIL, or have offered support in any way whether directly or indirectly could be placed on the list and regarded as FTFs or international terrorists. The support can vary from providing monetary support, to recruitment, training, and even food resources. Again, the application is not limited to those actually participating in hostilities or undertaking acts widely construed to be terrorist. For example, families of FTFs who may have had no involvement in any terrorist activities nor possess any criminal intent, could be convicted for sending money for their FTF and be categorized as FTFs themselves.
Presently, the onus of definition falls on national laws to decide what are terrorist acts in accordance with whatever subjective criteria the state deems fit – as long as it is compliant with UNSC Resolutions 1267, 1373 and 2178. However, the trend amongst states is to consider any act of hostility perpetuated by non-state actors, even in a state of armed conflict, as terrorist, even if such hostilities were lawful under IHL.[12] Additionally, under IHL, the principle of equality of belligerents confers on all parties in the conflict (including the state) the same rights and obligations, but the same principle does not extend to domestic laws. Therefore under national terrorism laws, only the actions of the non-state actors can be considered terrorist offences. The push for prosecuting non-state actors for mere participation in activities undermines the recommendation in Article 6 (5) of Additional Protocol II which states that the authority in power at the end of the hostilities will endeavor to grant amnesties. This provision aims to promote peace and reconciliation at the conclusion of an armed conflict.
In IHL, Article 33 of the 1949 Geneva Convention IV prohibits ‘collective penalties and likewise all measures of intimidation or terrorism’ against protected civilians. Specifically, under Article 51(2) of Additional Protocol I[13]and Article 13(2) of Additional Protocol II[14] “acts of terrorism” can be broken down into two major instances. First, when combatants use “acts or threats of violence the primary purpose of which is to spread terror among the civilian population”.[15] Second, when combatants attack people who are no longer participating in hostilities. Though neither of these prohibitions are specifically war crimes under the Rome Statute, they can fall under other non-terrorism related war crimes.[16]
THE WAR ON TERROR: A LINGUISTIC FALLACY
Given the distinct regimes that cater to international terrorism and armed conflict on what end of the spectrum does the “war on terror” fall? Can the war on terror then be classified as an armed conflict?
The phrase “war on terror” is a little more than a linguistic fallacy. Much like the term “foreign terrorist fighter” it represents a wrongful conflation of concepts that at best are wildly legally incompatible and at worst set a dangerous precedent in international law. It is used to describe, “measures and operations aimed at preventing and combating terrorist attacks which can include intelligence gathering, financial sanctions and judicial cooperation and also involve armed conflict.” [17] And while it can involve armed conflict, every altercation with a terrorist group is not a “war” as the phrase would lead to suggest. Whether or not something can be described as an International Armed Conflict (IAC) or Non-International Armed Conflict (NIAC) is dependent upon it reaching a certain threshold of violence before IHL can apply.[18] After 9/11 it was considered whether the legal or political status of non-state actors was a requisite factor in determining their eligibility as a viable party in an armed conflict. However, in 2006 the UN Commission of Inquiry determined that armed conflict could exist between a state and an organization categorized as “terrorist” by said state, as with Israel and Hezbollah, given that a certain threshold of violence was met.[19]
Regarding the wrongful depiction of the “war on terror” as a war with applicability under IHL, the ICRC states: “terrorism is a phenomenon. Both practically and legally war cannot be waged against a phenomenon but only against an identifiable party to an armed conflict.”[20]
THE DANGERS OF CONFLATING REGIMES
The biggest danger of conflating armed conflict with terrorism is the enormous potential for abuse and the violation of protections endowed under IHL. Often times, laws that are poorly defined tend to make victims of those far removed from the conduct or intent of acts of violence. Such is the case with the counter-terrorism regime under UNSC Resolutions 2178’s definition of foreign terrorist fighters.
The definition goes against the fundamental principle of legality, which requires laws to be narrow in their scope in compliance with Article 15 of the International Covenant on Civil and Political Rights (ICCPR).[21] FTF provisions may cover travel in support of “terrorist organizations” but do not provide a clear definition as to what a terrorist organization is.[22] Under the 1267 Sanctions List, and various national lists tailored to every country’s unique understanding of terrorism, there are a wide variety of actors and organizations that have ended up proscribed as “terrorist”. The use of the word “foreign” discounts dual nationals and people who despite not having citizenship share important social, cultural and familial ties with the country.[23] Finally, and most contentiously, the use of the word “fighter” implies participation in armed conflict, however the scope of the provision is so broad that it far surpasses actions in an armed conflict.[24] It includes those who are “supporting, facilitating, financing, servicing, and encouraging”[25] such travel. This can misleadingly result in individuals being classified as FTFs who were never engaged in any kind of fighting or violent act. Take humanitarian workers, for example. Because the work of humanitarian workers could be classified as “material support”, “services” or “assistance” to FTFs, it is very possible under the present expansive definition of FTFs, humanitarian worker could be categorized as terrorist supporters and hindered from performing their function carrying out assistance and aid especially in situations of violence just below the threshold of an armed conflict.[26] Though humanitarian workers are protected from hostilities under IHL, if the international counter-terrorism regime expands its domain to include armed conflict, such protections will be overridden.
If IHL is conflated with the counter-terrorism regime it could result in the erosion of principles fundamental to the purpose of IHL. For example, if the principle of equality of belligerents, which does not exist in the terrorism regime, is suspended in favor of tilting the balance towards a counter-terrorism approach, it would result in the loss of “the equal protection of persons and objects affected by an armed conflict, irrespective of the lawfulness of the first resort to force.”[27] The criminalization of actions lawful under IHL would result in the creation of conflicting international law obligations for states whilst simultaneously acting in contravention of the nature of armed conflict and against the rationale of IHL if they are still liable to prosecution on charges of terrorism.
CONCLUSION
Participation in an armed conflict alone should not be the threshold for a terrorist act under the counter-terrorism regime. In 2017, the Belgian Courts ruled that an individual could not be prosecuted for the offence of “terrorism” for acts committed while involved in armed conflict as per Belgium’s IHL Exclusion Clause.[28] Following Belgium’s example the terrorism and IHL regimes should be kept separate, and only unlawful terrorists acts under IHL should be the decisive factor in determining who can be rightfully considered a FTF.
By including participation in armed conflict and simultaneously acts of support that have no relation to fighting or armed conflict, the definition of FTF has created a lot of confusion as to which legal regime will take precedence in such a situation – a development which comes to the detriment of both regimes. In order to have avoided this conflict, the definition should have explicitly contained an exclusion clause that makes exceptions for actions taken in an armed conflict, in compliance with IHL. By undermining IHL principles, even in the face of the growing threat of terrorism, we are advocating for laws that would result in arbitrary prosecution, conviction and punishment.[29]Who is to say it stops there?
——— References ——-
[1] UN Security Council, Security Council resolution 2178 (2014) [on threats to international peace and security caused by foreign terrorist fighters], 24 September 2014, S/RES/2178 (2014)
[2] “The applicability of IHL to a situation of violence in which such fighters may be engaged depends on the facts on the ground and on the fulfilment of certain legal conditions stemming from the relevant norms of IHL, in particular common Articles 2 and 3”. Extract from the report “International humanitarian law and the challenges of contemporary armed conflicts“, document prepared by the ICRC for the 32nd International Conference of the Red Cross and Red Crescent (Geneva, Switzerland, 8-10 December 2015)
https://www.icrc.org/en/document/applicability-ihl-terrorism-and-counterterrorism
[3] Foreign Fighters under International Law, Geneva Academy of International Humanitarian Law and Human Rights, October 2015, pg. 6
[4] Ibig, pg. 7
[5] UNSC Resolutions 2170 (2014) specifically condemned ISIS and Al-Nusra but did not go so far as to define foreign terrorist fighter.
[6] UN Security Council, Security Council resolution 2178 (2014) [on threats to international peace and security caused by foreign terrorist fighters], 24 September 2014, S/RES/2178 (2014), preamble no. 8
[7] Ibid, operative clause no. 5
[8] Foreign Fighters under International Law, Geneva Academy of International Humanitarian Law and Human Rights, October 2015, pg. 42
[9] Ibid, pg. 35
[10] UN Security Council, Security Council resolution 1373 (2001) [on threats to international peace and security caused by terrorist acts], 28 September 2001, S/RES/1373 (2001), available at: https://www.refworld.org/docid/3c4e94552a.html
[11] UN General Assembly, International Convention for the Suppression of the Financing of Terrorism, 9 December 1999, No. 38349, available at: https://www.refworld.org/docid/3dda0b867.html
[12] Extract from the report “International humanitarian law and the challenges of contemporary armed conflicts“, document prepared by the ICRC for the 32nd International Conference of the Red Cross and Red Crescent (Geneva, Switzerland, 8-10 December 2015) https://www.icrc.org/en/document/applicability-ihl-terrorism-and-counterterrorism
[13] ICRC, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3
[14] ICRC, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609
[15] ‘What Does IHL Say About Terrorism?’ (International Committee of the Red Cross, 2020) <https://www.icrc.org/en/document/what-does-ihl-say-about-terrorism>
[16] R. Arnold, ‘Terrorism, war crimes and the International Criminal Court’, in Saul, Research Handbook on International Law and Terrorism, pg. 282.
[17] ‘What Does IHL Say About Terrorism?’ (International Committee of the Red Cross, 2020) <https://www.icrc.org/en/document/what-does-ihl-say-about-terrorism>
[18] Ibid
[19] Foreign Fighters under International Law, Geneva Academy of International Humanitarian Law and Human Rights, October 2015, pg. 23
[20] Ibid
[21] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations
[22] Helen Duffy, ‘“Foreign Terrorist Fighters”: A Human Rights Approach?’ (2018) 29 Security and Human Rights. https://brill.com/view/journals/shrs/29/1-4/article-p120_120.xml?language=en&body=pdf-29620, pg. 136
[23] Ibid, pg. 136
[24] Ibid, pg.136
[25] Ibid, pg. 136
[26] Extract from the report “International humanitarian law and the challenges of contemporary armed conflicts“, document prepared by the ICRC for the 32nd International Conference of the Red Cross and Red Crescent (Geneva, Switzerland, 8-10 December 2015)
[27] Ibid
[28] Thomas Poecke and others, ‘The IHL Exclusion Clause, And Why Belgian Courts Refuse To Convict PKK Members For Terrorist Offences – EJIL: Talk!’ (Ejiltalk.org, 2020) <https://www.ejiltalk.org/the-ihl-exclusion-clause-and-why-belgian-courts-refuse-to-convict-pkk-members-for-terrorist-offences/>
[29] Ibid, pg.141
