The Prosecution of Foreign Fighters in Western Europe: The Difficult Relationship Between Counter-Terrorism and International Humanitarian Law

Abstract

The collapse of the Caliphate, including the resulting surrender of hundreds of fighters to the Syrian Democratic Forces, as well as the tweets from President Trump threatening his allies to release 800 Islamic State fighters if they would not take back their own citizens, has led to an intense debate on what to do with these so-called foreign fighters. Many counter-terrorism experts and international lawyers have argued that these fighters should be brought home and brought to justice before national courts, for moral, legal and long-term security reasons. In the context of national prosecutions, the aim should be to not have a one-size fits all, but rather a tailored approach, ensuring that perpetrators are prosecuted, as much as possible, for the actual crimes they have committed. If we consider foreign fighters to be individuals joining a non-state armed group in an armed conflict, there is by definition an important nexus between foreign fighters and armed conflict. Hence due regard should also be paid to international humanitarian law in the framework of their prosecution. This article will analyse and assess the first cases where the relationship between counter-terrorism and international humanitarian law played a role and aims to provide, based on the direction this discussion is heading, the necessary guidance.

The repatriation of returning ISIS foreign terrorist fighters: Analysis of the factors influencing Indonesia’s refusal and its implications on counterterrorism efforts

“…A hands-off approach in this circumstance will only increase the potential threat. Repatriation, along with the chance of punishment and recuperation, is the sole legitimate and moral option for ensuring the long-term security of society; keeping foreign fighters in Syria raises security issues (Cuyckens & Paulussen 2019). The repatriation and punishment of nationals by various countries, including the United States, the United Kingdom, Germany, Tajikistan, and Australia, has been observed as a notable manifestation of their commitment.…”

Repatriation as a Human Rights Approach to State Options in Dealing with Returning ISIS Foreign Terrorist Fighters

“…A hands-off stance in this situation will only create the further possible danger. Leaving foreign fighters in Syria poses security risks, so repatriation, along with possible prosecution and rehabilitation, is the only a legal, moral, and (long-term) security option (Cuyckens & Paulussen, 2009). In other words, reducing the number of detainees through repatriation is the best way to alleviate this problem.…”