Challenges in the application of the obligation to ensure respect for IHL – foreign fighting as an example

Lloydd, Marnie

doi:10.4324/9780429197628-15

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“…Although it is not prohibited by New Zealand's law, and is state-controlled, as I have argued elsewhere, even foreign enlistment can present delicate considerations for an enlistee's home state, especially if the foreign state's military is accused of international crimes such as war crimes. 38 The relation between the home state and its citizen will also be strained, and in some circumstances risk charges of treason, if that foreign state becomes involved in hostilities against New Zealand or one of its allies. 39 The handing down of the death penalty in Russian-occupied Eastern Ukraine to three foreign enlistees in Ukraine's military in June 2022 also demonstrates practical risks and diplomatic headaches for a home state where foreign enlisted soldiers are treated differently than citizen forces, including being treated (in this case, unlawfully) as mercenaries or terrorists.…”

Section: Unpacking Foreign Fightingmentioning

confidence: 99%

Unpacking Foreign Fighting: New Zealand’s Legislative Responses to Transnational Combatants

Lloydd

2023

NSJ

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Is it lawful for New Zealanders to travel overseas to participate in a foreign conflict? Political statements and travel advisories have discouraged the private participation of New Zealanders in the conflicts in Syria and Ukraine. Yet, prohibitions in New Zealand’s law are currently restricted to criminal offences related to the ‘mercenary’ and the ‘foreign terrorist fighter’. Foreign fighting or foreign incursion conceived more broadly are not specifically prohibited. At first glance, the chosen mercenary-terrorist binary appears unreflective, leaving unhelpfully unpacked any broader phenomena of transnational combatants who might not be fighting with designated terrorist entities or for financial gain as mercenaries – such as volunteers fighting in Ukraine or with Kurdish forces in Syria. This article brings together the various areas of law that address these questions, providing a historical account of how the law has evolved over time. It reveals how New Zealand’s discourse in key moments of legislative debate has in fact continually preserved space for certain types of private involvement in transnational armed violence. The article suggests, therefore, that the unpacking still required is not necessarily that of seeking better understanding of transnational participation in war and its policy considerations, but rather further consideration of the values and assumptions underlying the permissive legal positions taken in the first place.

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Section: Unpacking Foreign Fightingmentioning

confidence: 99%

Unpacking Foreign Fighting: New Zealand’s Legislative Responses to Transnational Combatants

Lloydd

2023

NSJ

View full text Add to dashboard Cite

show abstract

Challenges in the application of the obligation to ensure respect for IHL – foreign fighting as an example

Cited by 1 publication

References 0 publications

Unpacking Foreign Fighting: New Zealand’s Legislative Responses to Transnational Combatants

Unpacking Foreign Fighting: New Zealand’s Legislative Responses to Transnational Combatants

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