Retrieving Neutrality Law to Consider Otherr Foreign Fighters Under International Law

Lloydd, Marnie

doi:10.2139/ssrn.3045274

Cited by 4 publications

(5 citation statements)

References 17 publications

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“…In the late nineteenth and early twentieth centuries, state concern about nationals fighting for other powers, at least amongst European and American states, was primarily discussed through the rules of neutrality between states. 50 Britain's imperial Foreign Enlistment Act 1870 was a domestic neutrality law "to regulate the conduct of Her Majesty's Subjects during the existence of Hostilities between Foreign States with which Her Majesty is at Peace". 51 It became part of New Zealand law through proclamation in the New Zealand Gazette in 1872.…”

Section: New Zealand's Earlier Foreign Enlistment Lawmentioning

confidence: 99%

“…also of fighters uninvolved with terrorist activity and those fighting against a terrorist group. 99 Thus, for those generally opposed to foreign fighting, such offences would offer a blanket prohibition requiring abstention from participation in fighting outside of official state structures, in line with government statements and travel advisories recommending people not to travel to warzones. Such a broad offence would also have eased prosecution challenges surrounding foreign fighting, especially evidentiary issues for extraterritorial crimes.…”

Section: Foreign Terrorist Fighting and Other Foreign Fightersmentioning

confidence: 99%

“…In New Zealand's case, we see something common in the response of many states; as I have stated elsewhere, while not necessarily encouraging foreign fighting, states might "turn a blind eye to citizens who fight overseas when it suits their foreign policy, when there is little threat to the home State, when the person's allegiance is not in question and the causes are considered just. " 105 The debates indicate what was considered to be at stake in the different political and legislative moments and demonstrate a weighing up of costs and benefits and an interpretation of international legal obligations and domestic political risks. New Zealand's position is, thus, not neutral, but involves "a value judgment made from a particular vantage point".…”

Section: Foreign Terrorist Fighting and Other Foreign Fightersmentioning

confidence: 99%

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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: New Zealand's Earlier Foreign Enlistment Lawmentioning

confidence: 99%

Section: Foreign Terrorist Fighting and Other Foreign Fightersmentioning

confidence: 99%

Section: Foreign Terrorist Fighting and Other Foreign Fightersmentioning

confidence: 99%

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

Lloydd

2023

NSJ

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“…Under International Law, states otherwise stipulate the condition for acquisition and loss of nationality. However, the state's discretion is particularly limited (Lloydd, 2017). Limitation on stripping individuals includes foreign terrorist fighters' nationality, the prohibition of arbitrary deprivation, the duty to avoid statelessness, and the principle of non-discrimination.…”

Section: Prohibition On the Deprivation Of Nationalitymentioning

confidence: 99%

The Rights to Nationality for Ex ISIS Combatants Repatriation Under International Law

Gunawan

Sienda

Anggriawan

et al. 2022

JHI

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In 2020, the Coordinating Minister for Political, Legal, and Security Affairs of Indonesia, Mahfud MD, affirmed that any Indonesian citizen affiliated with ISIS would not be repatriated. However, Article 28D of the 1945 Constitution ensures that a person’s citizenship status is guaranteed as one of the human rights, as guaranteed in Article 15 of the Universal Declaration of Human Rights. For this reason, this research used a normative legal research method using statute and case approaches through literature review. The research raises the question of how is the protection of the rights to nationality for ex-ISIS based on international law? The research aims to discuss and analyze the rights to the nationality of ex-ISIS combatants under the implementation of international law, such as Article 1 (1) of the 1954 Convention Relating to the Status of Stateless Persons. The research results explain that the state’s discretion regarding nationality is particularly limited to conditions such as the prohibition of arbitrary deprivation, the duty to avoid statelessness, and the principle of discrimination, and everyone has a right to a nationality.

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“…225 In effect, these offences amount to a total ban on fighting (and any type of non-exempted activity) in the specified area, and correspond to what a strict, abstention-based conception of neutrality would require. 226 The declared area and designated area offences sweep considerably broader than the foreign incursion offences, which in essence require proof of at least an act preparatory to the waging of private war. 227 Indeed, the prophylactic nature of the declared area and designated area offences entails penalising what would otherwise be an innocent act of travelling to a particular place with up to ten years' imprisonment.…”

Section: B Neutrality Law Reduxmentioning

confidence: 99%

Reconceptualising the Legal Response to Foreign Fighters

Ip¹

2019

ICLQ

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The Syrian civil war has highlighted the phenomenon of foreign fighting, in which individuals leave their home State to join an armed conflict overseas. The predominant paradigm for regulating foreign fighting, centred on United Nations Security Council Resolution 2178, is based on counterterrorism, which in essence treats foreign fighting as a form of terrorism. This paradigm is largely reflective of the domestic legislation of the United Kingdom, United States, Canada and Australia. This article argues that this approach is problematic, and that an alternative paradigm based on the international law of neutrality and related domestic legislation provides a better means for regulating foreign fighting.

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Retrieving Neutrality Law to Consider Otherr Foreign Fighters Under International Law

Cited by 4 publications

References 17 publications

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

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

The Rights to Nationality for Ex ISIS Combatants Repatriation Under International Law

Reconceptualising the Legal Response to Foreign Fighters

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