I. INTRODUCTION
A member of a disfavoured religious group departs to fight overseas with an armed group composed of his co-religionists. He returns home an experienced fighter with specialised skills, which he subsequently employs in furtherance of a plot with other co-religionist conspirators to destroy various institutions of State—all with the ultimate aim of restoring his religious group to its rightful place of prominence.Footnote 1
The 1605 gunpowder plot was of course thwarted; Guy Fawkes and his co-conspirators were either killed or executed. Guy Fawkes, as an individual who participated in an overseas conflict and then engaged in domestic terrorism upon return, can be understood as an early manifestation of a threat currently faced by Western security services.Footnote 2 The complication, however, is finding the potential domestic terrorists from among a large pool of foreign fighters, individuals who travelled to join both pro-government and rebel forces fighting in the Syrian civil war.
Being a foreign fighter is not a crime under international law;Footnote 3 nor is it per se criminal under the domestic law of most States to fight with an armed group in a foreign conflict.Footnote 4 Indeed, as noted in section II, foreign fighting lacks a settled legal definition. Nevertheless, the downstream security concerns resulting from the influx of foreign fighters to the Syrian conflict have resulted in a raft of legal responses. The centrepiece of the international legal response is United Nations Security Council Resolution 2178 (UNSCR 2178),Footnote 5 adopted in September 2014, which requires that member States ensure that their laws are sufficient to respond to the threat of foreign terrorist fighters. The approach taken by UNSCR 2178 is to treat foreign fighting as a form of terrorism, thereby conflating two distinct phenomena. The clearest illustration of this is UNSCR 2178's use of the term ‘foreign terrorist fighter’ (FTF). All three elements of the term are to some degree problematic, but none more so than the descriptor ‘terrorist’, which also anchors the response to foreign fighting under a counterterrorism paradigm.
While the international legal dimension is undoubtedly significant, the focus of this article is primarily on domestic law. Accordingly, section III provides a comparative law survey that outlines how the counterterrorism paradigm established by UNSCR 2178 has largely been replicated in the domestic legislation of the United Kingdom, United States, Canada and Australia.
In section IV, it is argued that this counterterrorism paradigm has significant shortcomings deriving from the difficulties of defining terrorism and terrorism's tendency to engender problematically illiberal countermeasures. Given these problems, it is argued in section V that an alternative paradigm based on neutrality law—the international law of neutrality and related domestic legislation—provides a better foundation than the predominant counterterrorism paradigm for dealing with foreign fighting. By directly targeting the phenomenon, and doing so irrespective of the nature of the particular group joined, a neutrality law-based paradigm provides a more coherent and rational means for regulating foreign fighting.
II. FOREIGN FIGHTING: BACKGROUND
A. Definitions
The term foreign fighter, and the related concept of foreign fighting, are not legal terms of art.Footnote 6 The definitions in the academic literature also vary.Footnote 7 Hegghammer defines a foreign fighter as someone ‘who (1) has joined, and operates within the confines of, an insurgency, (2) lacks citizenship of the conflict state or kinship links to its warring factions, (3) lacks affiliation to an official military organization, and (4) is unpaid’.Footnote 8 Malet defines foreign fighters as simply ‘noncitizens of conflict states who join insurgencies during civil conflicts’.Footnote 9
From these can be derived certain core definitional elements. The first is traveling from one place (the home state) to another (the conflict state) while having a relationship of foreignness to the conflict state. While the status of being foreign suggests a categorical division, there are degrees of foreignness—citizenship, ethnicity and residence are all possible delimiting concepts. For Malet, citizenship demarcates foreignness.Footnote 10 But significant numbers of foreign fighters (so defined) will have some tie to the conflict—for instance, many citizens of European States who joined the Syrian conflict are part of diaspora communities.Footnote 11 Hegghammer excludes those with citizenship or kinship links; on his definition, ‘returning diaspora members’ are not foreign fighters.Footnote 12
Second, the ‘fighter’ element invites consideration of whom the individual fights for and precisely what kind of activity fighting entails. Regarding the former, both Hegghammer and Malet's definitions refer to individuals joining an insurgency, which excludes fighting as part of a State's official armed forces, and perhaps pro-government groups as well. But there are broader definitions based around joining non-State armed groups, whatever their allegiance.Footnote 13 Regarding the latter, ‘fighter’ calls to mind international humanitarian law (IHL). Under the IHL applicable to non-international armed conflicts, a fighter is described by a variety of other terms, such as a member of an organised armed group, a person who directly participates in hostilities, and a civilian who directly participates in hostilities.Footnote 14 So understood, it is not clear that all those who travelled to Syria are properly labelled as fighters.Footnote 15 Some did not fulfil any combat function, but performed supporting roles.Footnote 16
The other element is motivation: foreign fighters are typically motivated by a desire to defend a religious, ideological, or ethnic kinship group.Footnote 17 Their primary motivation is thus some kind of cause rather than private gain, which distinguishes them from mercenaries.Footnote 18 Hegghammer's requirement that a foreign fighter be unpaid is overly restrictive—it suffices that the primary motivation is non-material.Footnote 19
These three elements are evident in the definition employed by the leading legal text on the topic, which refers to foreign fighters as ‘individuals, driven mainly by ideology, religion and/or kinship, who leave their country of origin or their country of habitual residence to join a party engaged in an armed conflict’.Footnote 20 So defined, foreign fighting has no inherent link to terrorism or to Islam. Foreign fighters, or in older parlance, foreign volunteers, have a longer and broader history.Footnote 21 Nonetheless, as Sykes observes, foreign fighting has become ‘a construct that is in practice used to refer to a group far smaller than its constituent terms suggest—namely those travelling abroad to fight with Islamic militant insurgencies’.Footnote 22 This conflation of foreign fighting with Islamic terrorism is explicable as an instance of salience bias: the prominent cases of foreign fighting in recent times have involved individuals leaving their home States to join Islamic terrorist groups. A case in point is the Syrian civil war, which saw foreign fighters flock to join groups such as ISIL (Islamic State of Iraq and the Levant).Footnote 23
Perhaps unsurprisingly then, the United Nations Security Council Resolutions that respond to this phenomenon make an explicit connection between foreign fighting and terrorism by employing the term ‘foreign terrorist fighter’ (FTF). The term first appeared in United Nations Security Council Resolution 2170,Footnote 24 but lay undefined until UNSCR 2178, which defined FTFs as:Footnote 25
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.
This definition can be understood in terms of the three elements discussed above. UNSCR 2178 expresses the foreignness element as travelling to a State where one is neither a resident nor citizen. However, its scope remains unclear, particularly in the case of dual citizens and members of diaspora communities.Footnote 26 The fighter element is broadly conceived, and impliedly includes a range of conduct including receiving terrorist training. While persons who have travelled to a conflict zone and received training from a terrorist group may very well be among the most dangerous of potential returnees,Footnote 27 travelling to fight and travelling to receive terrorist training are not the same thing.Footnote 28 Accordingly, grouping together individuals who have travelled to a conflict zone and engaged in a range of activities under the umbrella term of ‘fighter’ may hinder efforts to formulate a rational and coherent response.Footnote 29 Notably, the definition of FTF in UNSCR 2178 does not actually require that an individual engage in terrorist training or terrorist activity—it is sufficient that the individual travels to the conflict State for the purpose of engaging in those activities. The ‘terrorist’ part of the FTF definition, then, might best be characterised as the motivation element.
The definition's various references to terrorism, together with the reference to armed conflict, suggest a conflating of foreign fighting and terrorism evident in the term FTF itself. This is further highlighted by UNSCR 2178 singling out FTFs associated with ISIL, the Al-Nusrah Front and groups derived from Al-Qaida as being of particular concern.Footnote 30 At the same time, despite its references to terrorist acts and terrorist training, UNSCR 2178 conspicuously lacks a definition of terrorism, a point which will be discussed further below.
B. The Threat of Returning Foreign Fighters
The concern for Western governments has been less about the consequences of the influx of foreign fighters to the Syrian conflict, and more about the consequences of the return of foreign fighters from that conflict. The issue is now all the more pressing with ISIL's military defeat and the attendant prospect of greater numbers of returnees.Footnote 31 The key question regarding these returnees is what risk some may pose to their home States as trained and experienced fighters, and as potentially radicalised individuals with links to transnational terrorist networks.Footnote 32
The threat of returned foreign fighters turning to domestic terrorism is not fanciful. The 2004 Madrid bombings and 2005 London bombings, for example, both involved returned foreign fighters.Footnote 33 More recently, returnees from the Syrian conflict have been involved in several significant terrorist attacks in Europe, including the attack on the Jewish Museum of Belgium (May 2014),Footnote 34 and the attacks in Paris (November 2015) and Brussels (March 2016).Footnote 35 More systematic assessments of the threat posed by returnees vary based on two parameters: the blowback rate (the proportion of returned foreign fighters who pose a threat to their home States), and the presence or absence of a veteran effect (which posits that attacks involving foreign fighters are more dangerous). To some extent, the variation is explicable by differing time frames, coding of data, and differing definitions of foreign fighter.
Hegghammer's much-quoted figure regarding the blowback rate, based on a dataset covering the time period between 1990 and 2010, is less than one in 9. But even so, he found foreign fighting to be one of the strongest predictors of involvement in domestic terrorism.Footnote 36 Hegghammer and Nesser's subsequent work, based on a more recent dataset, found a lower blowback rate for returnees from the Syrian conflict (about one in 360).Footnote 37 This is roughly consistent with Vidino et al., who identified 12 returned foreign fighters involved in terrorism from a pool of over 6000 (about one in 500).Footnote 38 These lower rates must, however, been seen in light of a much larger pool of potential returnees,Footnote 39 meaning that the absolute numbers of dangerous returnees remains considerable.
As for the veteran effect, Hegghammer found that the presence of a returned foreign fighter increased the chance of successful attack and doubled the chance of fatalities.Footnote 40 Conversely, Leduc concluded that the presence of foreign fighters did not increase the probability of successful execution or more casualties.Footnote 41 However, Vidino et al.’s findings, based on a dataset of terrorist attacks in the West between 2014 and 2017,Footnote 42 are consistent with a veteran effect, with the attacks involving foreign fighters on average found to cause considerably greater numbers of casualties than those not involving foreign fighters.Footnote 43
All that said, it should be noted that the threat of returned foreign fighters represents only part of the threat picture.Footnote 44 Although the terrorist attacks involving returned foreign fighters noted earlier are no doubt salient, many recent attacks on Western targets have not involved foreign fighters. Certain perpetrators have been inspired to act by ISIL. Examples include the Orlando nightclub shooting in June 2016, the 2016 Bastille Day attack in Nice,Footnote 45 attacks in Ansbach and Wurzburg in July 2016, Berlin in December 2016, and the Westminster attack in March 2017.Footnote 46 In some cases, ostensibly self-radicalised ‘lone wolf’ attackers turn out to have received assistance or direction from ISIL via virtual planners operating remotely through encrypted messaging servicesFootnote 47—the Ansbach and Wurzburg attacks reportedly involved such remote direction.Footnote 48
Notably, Nesser et al. observe a decline in the overall proportion of terrorist plots involving foreign fighters (from 75 per cent between 2001 and 2007 to 45 per cent between 2014 and 2016),Footnote 49 with this decrease likely due to the technological possibility of directing plots remotely, as well as ‘an increased focus by security services on returning foreign fighters’.Footnote 50 This is unsurprising given that terrorist groups adapt,Footnote 51 and respond rationally to security efforts by substituting another modality of attack.Footnote 52 Consequently, even effectively countering the threat of returned foreign fighters—as the various measures discussed in the next section seek to do—will only ever represent a partial solution.
III. THE LEGAL RESPONSE TO FOREIGN FIGHTERS
As noted earlier, the concern over foreign fighters joining the Syrian conflict, and the threat they might pose upon their return, resulted in an international-level response in the form of UNSCR 2178. This resolution, made under chapter VII of the United Nations Charter, called upon member States to take a variety of steps, including ensuring that their domestic legal systems criminalised the activities of FTFs and those who fund or facilitate FTFs.Footnote 53 UNSCR 2178 precipitated another round of global security law-making,Footnote 54 as States sought to implement the Security Council's template in their domestic legal systems. Indeed, some States had already taken their own initiatives in advance of UNSCR 2178.Footnote 55 The resulting pattern is a set of domestic legal responses, clustered around 2014, which were either ‘adopted in anticipation of, or to comply with’ UNSCR 2178.Footnote 56
The domestic legal responses of the United Kingdom, United States, Canada and Australia—all States from which foreign fighters have travelled to the Syrian conflictFootnote 57—exemplify this pattern. Additionally, they largely replicate UNSCR 2178's connecting of foreign fighting to terrorism, and thus represent a counterterrorism paradigm, whereby foreign fighting is conceived of and dealt with as a form of terrorism. The responses of these four States are outlined in more detail below, categorising them according to how they are imposed (administratively or through the criminal justice process), and when they apply (before or after departure from the home State).
A. Administrative Control Measures
1. Pre-departure
Passport control measures reduce the ease of travel to the conflict State for would-be foreign fighters. Such measures typically entail powers to revoke or cancel passports. Canada introduced an interim power in 2015 to ‘cancel’ a passport pending possible revocation,Footnote 58 a supplement to the existing ministerial power to decline to issue or revoke a passport on the grounds of security or preventing terrorism.Footnote 59 In the United Kingdom, the Home Secretary has the power under the royal prerogative to refuse or withdraw passports. The power's use has increased markedly since the guiding criteria were updated in 2013 to respond to the departure of foreign fighters.Footnote 60 A complementary power requiring the production of travel documents where a person is reasonably suspected of attempting to depart to participate in terrorism-related activity was introduced in 2015.Footnote 61 Similarly, in Australia, legislative amendments in 2014 created a power of temporary suspension where it is reasonably suspected that a person may leave Australia to engage in conduct that might prejudice the security of Australia or a foreign country.Footnote 62 This power complements the existing ministerial power to cancel or refuse to issue a passport on the ground that the person would be likely to engage in conduct that might prejudice the security of Australia or a foreign country.Footnote 63 Both powers have been liberally employed. More than 30 passports were suspended in the first two years of the existence of the suspension power, while more than 130 passports—a marked increase from the historical baseline—were cancelled between 2014 and 2017.Footnote 64
An unintended consequence of thwarting would-be foreign fighters from travelling is that they may direct their attention inward,Footnote 65 as has occurred in Canada and Australia.Footnote 66 Such cases may necessitate other control measures. In the United Kingdom, terrorism prevention and investigation measures (TPIMs), created by a 2011 Act of the same name, can be imposed on persons reasonably believed to be involved in terrorism-related activity. TPIMs can disrupt would-be foreign fighters by imposing obligations restricting their travel and requiring the surrender of their travel documents (which notably covers foreign passports). TPIMs can also be used as a control measure against thwarted foreign fighters by subjecting them to other restrictions such as curfew and electronic monitoring.Footnote 67 Amendments made in 2015 added two further options: forced relocation to a residence elsewhere in the country, and an obligation to attend appointments with specified persons,Footnote 68 which is intended to facilitate de-radicalisation.Footnote 69 Several TPIMs imposed subsequently have included these new obligations.Footnote 70
The Canadian equivalent exists in the form of peace bonds, originally introduced as a counterterrorism measure in 2001. This device allows a would-be foreign fighter to be subject to various conditions, such as wearing a monitoring device, curfew and restrictions on possessing certain items.Footnote 71 Peace bonds can be imposed where there are reasonable grounds for fearing that a person may commit a terrorism offence—the standard having been lowered from ‘will commit’ in 2015.Footnote 72
2. Post-departure
Certain administrative control measures are also applicable to returned foreign fighters. Peace bonds can be used to disrupt the activities of certain returnees,Footnote 73 and TPIMs have been used in this fashion in the United Kingdom.Footnote 74 The Australian equivalent is the control order regime.Footnote 75 Originally enacted as a counterterrorism measure after the 2005 London bombings,Footnote 76 a 2014 amendment extended the life of the regime, and expanded the grounds for granting control orders to cover engaging in ‘hostile activity in a foreign country’.Footnote 77 Although this expansion of the scope of the regime was directed at the threat of dangerous returnees,Footnote 78 only a few control orders have been issued since the advent of the Syrian conflict, and as of 2018 none had relied on the recently introduced grounds.Footnote 79
Another category of control measures disrupts the ease of travel of foreign fighters. For example, the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 requires otherwise exempt individuals to obtain a visa to enter the United States if they have travelled to Syria or Iraq.Footnote 80 Other measures specifically increase the barriers to entry for returning foreign fighters. In the United Kingdom, temporary exclusion orders (TEOs) were introduced in 2015. A TEO may be applied to an individual who is abroad and has the right of abode in the United Kingdom where the Home Secretary reasonably suspects that individual is or has been involved in terrorism-related activity, and reasonably considers a TEO necessary to protect the public from terrorism. Once imposed, the individual is prohibited from returning without a permit, the issuing of which can be made conditional.Footnote 81 This allows the government to control the circumstances of the individual's return.Footnote 82 More recently, in July 2019, Australia enacted a virtual carbon-copy of the British TEO scheme with its Counter-Terrorism (Temporary Exclusion Orders) Act 2019.
Whether TEOs are more a product of political posturing than a rational policy process is debatable. In the United Kingdom, TEOs have been used, at most, in a handful of cases,Footnote 83 which lends credence to the claim that they are meant to function primarily on a symbolic, expressive level.Footnote 84
At the most extreme, a foreign fighter may be barred from returning altogether through the deprivation of citizenship. In practice, this entails stripping foreign fighters who are dual nationals of citizenship on the theory that their conduct is incompatible with continued membership of the political community.Footnote 85 While citizenship deprivation is not novel, its use in the common law world was rare by the late twentieth century.Footnote 86 However, with the exception of the United States,Footnote 87 it has taken on renewed prominence as a response to foreign fighters.Footnote 88 In the United Kingdom, the use of the existing citizenship deprivation power increased markedly around 2013 and 2014.Footnote 89 Further, in 2014, that power was extended to naturalised citizens. This allows the Home Secretary to exercise the power where it is considered conducive to the public good on account of the person having engaged in conduct prejudicial to vital national interests, provided that the Home Secretary has reasonable grounds for believing that the person can become a citizen of another country or territory.Footnote 90
Both Australia and Canada followed suit. The Allegiance to Australia Act 2015 prescribes the loss of citizenship where a person: engages in certain forms of conduct including various modalities of terrorism or facilitating terrorism, as well as foreign incursions;Footnote 91 serves in the armed forces of a country at war with Australia or a declared terrorist organisation; or is convicted of specified offences relating to terrorism and various crimes against the State.Footnote 92 Similarly, the Strengthening Canadian Citizenship Act 2014 permitted deprivation of citizenship on grounds such as service in an armed force or organised armed group engaged in armed conflict against Canada, and conviction for a terrorist offence.Footnote 93 However, these provisions were repealed in 2017 following a change in government.Footnote 94
B. The Criminal Law
Administrative control measures are imposed with a lesser degree of due process, and for that reason alone, are generally regarded as problematic. By contrast, the criminal law appeals as the most procedurally legitimate and durable way for dealing with foreign fighters,Footnote 95 at least as far as coercive responses are concerned. Coercive responses do, however, need to be applied with care.Footnote 96 In any case, given the sheer number of returnees,Footnote 97 criminal prosecution will necessarily be selective. And it makes sense to decide whether to prosecute based on a returnee's discernible threat, bearing in mind the range of motivations for returning and the degree of participation in wrongful acts.Footnote 98 Once the decision to use the criminal law is made, there is the question of what offence to charge, given that being a foreign fighter is in general not an offence under international or domestic law.Footnote 99 In keeping with the counterterrorism paradigm, the hook is usually some conduct by the foreign fighter either before or after departure that amounts to an offence under counterterrorism law.
1. Conduct occurring in home state
Section 5 of the United Kingdom's Terrorism Act 2006 creates the offence of preparation for terrorist acts. This offence, which is worded broadly enough to capture a range of preparatory conduct, is the charge of choice for those who planned to leave but did not actually do so, as well as those who reached various stages of proximity to Syria.Footnote 100 The American equivalent is the offence of providing material support—a term capaciously defined to include various kinds of assistance, including providing ‘oneself’Footnote 101—to a designated foreign terrorist organisation (FTO), such as ISIL and Al-Nusrah. This means that any would-be foreign fighter intending to join those groups, knowing that they are designated FTOs or that they have engaged or engage in terrorist activity or terrorism,Footnote 102 can be prosecuted prior to departure for the inchoate versions of the material support offence.Footnote 103 As is the case more generally, the material support offence has been a prosecutorial staple.Footnote 104 This is due in no small part to its broad scope of application and hefty penalty, particularly with the maximum having been raised to 20 years’ imprisonment in 2015.Footnote 105 Indeed, the ready utility of the offence explains the lack of a broader legislative response by the United States.Footnote 106
Canada created several specific offences in 2013 to deal with persons leaving or attempting to leave Canada to participate in terrorism.Footnote 107 These specific leaving offences, which have been charged several times,Footnote 108 clarify that travelling to engage in terrorism overseas is a crime, even though existing terrorism offences already covered the conduct.Footnote 109
Australian law, as a result of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, criminalises a broad range of acts preparatory to foreign incursion offences,Footnote 110 whether done in Australia or elsewhere. These preparatory acts include accumulating weapons, giving or receiving military training, and giving or receiving goods and services to promote the commission of a foreign incursion offence.Footnote 111 The preparatory offence is the most commonly prosecuted of the foreign incursion offences.Footnote 112
2. Conduct occurring in conflict state
Foreign fighters who reach the theatre of armed conflict and return are potentially liable for prosecution for their conduct overseas. As noted earlier, this is typically on the basis that it constitutes some type of terrorism offence. For example, in the United Kingdom, section 5 of the Terrorism Act 2006 is again the prosecutorial mainstay.Footnote 113 Section 5 has been used in relation to persons who departed to fight against government forces in Syria, where they spent six months, during which time they received weapons training and engaged in armed patrols (although they were not found to have engaged in actual armed combat).Footnote 114 The Act further provides specific offences of training for terrorism (section 6) and attending a place for terrorist training (section 8). These offences apply extraterritorially, with full extraterritorial jurisdiction for the section 5 and 6 offences having been added in 2015.Footnote 115
The material support offence applies extraterritorially, and therefore covers the relatively few American nationals who succeeded in travelling to Syria to join ISIL,Footnote 116 as well as those joining FTOs in Afghanistan and Somalia.Footnote 117 Also available is the specific offence of receiving military-style training from an FTO,Footnote 118 although in practice it is crowded out by the material support offence.Footnote 119
In Canada, there is the possibility of prosecution for the offences created by the Anti-Terrorism Act 2001, for which extraterritorial jurisdiction exists in most cases.Footnote 120 Australia likewise provides for extraterritorial jurisdiction for terrorism offences.Footnote 121
Additionally, the amendments resulting from Australia's Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 set out several foreign incursion offences applicable to conduct overseas.Footnote 122 Section 119.1 makes it an offence to engage in hostile activity in a foreign country, or to enter a country with the intent to engage in hostile activity there or elsewhere.Footnote 123 Section 119.2 creates a novel offence of entering or remaining in an area in a foreign country that has been subject to an executive declaration, which, per section 119.3, is made on the basis of a ministerial determination that a listed terrorist organisation is engaging in a hostile activity in that area. Proof of the offence is complete upon a showing that the person entered or remained in a declared area,Footnote 124 unless the person can show their sole purpose of travel fell within a range of legitimate purposes.Footnote 125
With the recent enactment of the Counter-Terrorism and Border Security Act 2019, the United Kingdom now has an equivalent of the Australian declared area provision, namely the offence of entering or remaining in a designated area. The Secretary of State has the power to designate an area if satisfied that it is necessary to restrict British nationals or residents from entering or remaining in that area for the purpose of protecting the public from terrorism.Footnote 126 Similar to its Australian counterpart, the offence requires only that a person enters or remains in a designated area,Footnote 127 although this is qualified by a list of certain permitted purposes (such as providing humanitarian aid or journalistic work) as well as a defence of reasonable excuse.Footnote 128
C. International Crimes
As noted at the outset, international law does not criminalise foreign fighting in itself. However, a foreign fighter's particular conduct may render them liable for prosecution for war crimes or other international crimes.Footnote 129 War crimes are the most likely candidate given the numerous reports alleging their commission in the Syrian conflict. Conduct such as killing prisoners, indiscriminate attacks, attacking civilians or civilian objects, and various forms of prisoner mistreatment likely qualify as war crimes regardless of the classification of the armed conflict in Syria.Footnote 130 The alleged perpetrators in the vast majority of cases are forces loyal to the Syrian government, as well as groups such as ISIL. But anti-ISIL groups such as the YPG (People's Protection Units) and Peshmerga have also been accused of war crimes.Footnote 131
Regarding the forum for trial, the Office of the Prosecutor of the International Criminal Court has stated that national authorities have the primary responsibility to prosecute.Footnote 132 But prosecutions for international crimes remain a rarity. British authorities have considered war crimes prosecutions, and one former rebel has been convicted and sentenced to life imprisonment for war crimes in Sweden.Footnote 133
D. The Problem of Evidence
To date, relatively few returnees have been prosecuted.Footnote 134 A substantial part of the explanation lies in the practical difficulties of adducing sufficient evidence to satisfy the criminal standard of proof.Footnote 135 This is not an issue regarding conduct occurring in the home State, since the usual set of investigative tools will be available. So, for example, United States authorities rely extensively on the evidence of informants and undercover agents to prosecute would-be foreign fighters,Footnote 136 a tactic generally employed in counterterrorism investigations.Footnote 137
However, the sufficiency of evidence is a substantial challenge when the charges relate to conduct occurring in the conflict State because there are limited ways of proving (or even knowing) what the person concerned did there. Some returnees never disclose any information about their activities; some may do so via social media,Footnote 138 although posing with weapons and combat gear is not in itself sufficient proof. Mutual legal assistance is also not a viable option given that the situation in Iraq and Syria is such that local police forces cannot realistically help with collecting evidence.Footnote 139 Assuming also that governments will have to make use of information derived from intelligence sources, there will be challenges in converting intelligence into admissible evidence.Footnote 140 One such issue, if the desired information comes from an allied foreign intelligence service, is that conditions may be imposed on the sharing of that intelligence which precludes its use as evidence in open court.Footnote 141
In sum, the availability of evidence is likely to be a key consideration in deciding whether to prosecute.Footnote 142 Despite all of these challenges, there have been successful prosecutions of returned foreign fighters. Sometimes evidence becomes available by chance (for example, refugees providing accounts of what happened in Syria), is shared on social media, is found in an incriminating video or computer file in possession of a returned foreign fighter, or is found by surveillance.Footnote 143
IV. ISSUES WITH THE COUNTERTERRORISM PARADIGM
Most of the domestic legal responses outlined above operate under a counterterrorism paradigm in that they deal with foreign fighting principally in the context of terrorism. That this should be so is unsurprising given the influence exerted by UNSCR 2178, and, in particular, its use of the term FTF, which explicitly links foreign fighting and terrorism. UNSCR 2396, the 2017 follow-up to UNSCR 2178 that calls for a further consolidation of countermeasures, continues in the same vein: FTF is used as a subset of ‘terrorist’ throughout.Footnote 144 The competing term, foreign fighter, is used as well. It appears, for example, in certain official British documents.Footnote 145 Sometimes, the two terms are mixed together.Footnote 146 The European Union uses foreign fighter and FTF interchangeably,Footnote 147 as does the record of the meeting at the time of UNSCR 2178's adoption.Footnote 148 Consequently, the link between foreign fighting and terrorism is either explicit (as in the FTF language of Security Council resolutions), or at least implicit, with foreign fighting almost invariably associated with terrorism.Footnote 149
There are a number of problems with the counterterrorism paradigm's treatment of foreign fighting as a form of terrorism. First, it relies on the deeply contested term of terrorism as the trigger for a range of draconian legal responses. Second, foreign fighting and terrorism are not synonymous. Treating them as interchangeable conflates two distinct phenomena. Foreign fighting does not necessarily involve terrorism; terrorism does not necessarily involve foreign fighting.Footnote 150 Therefore, regulating foreign fighting as a form of terrorism will inevitably have blind spots. Third, conflating foreign fighting and terrorism also runs the risk of collapsing the boundaries between two different legal regimes, namely counterterrorism law and IHL.
A. Vague Trigger for a Draconian Response
It is a well-worn truism that terrorism is difficult to define;Footnote 151 formulating an internationally accepted definition has proven intractably difficult.Footnote 152 Nonetheless, terrorism can be conceptually distinguished from other forms of violence such as guerrilla warfare and insurgency. Guerrilla warfare entails irregular military operations (skirmishes, hit-and-run raids) that target military objectives, with the goals being the enemy's military defeat and the control of territory.Footnote 153 An insurgency refers to ‘a protracted politico-military struggle focused on weakening the control and legitimacy of government’.Footnote 154 Insurgents will conduct guerrilla warfare,Footnote 155 but in order to achieve regime change, will typically engage in additional activities such as information and psychological warfare to mobilise popular support.Footnote 156 By contrast, terrorism can be understood as ‘deliberately and violently targeting civilians for political purposes’.Footnote 157 Terrorists will be numerically few, and for that reason, typically do not engage in direct military combat or hold territory like guerrillas, nor do they engage in political mobilisation efforts like insurgents.Footnote 158
However, although these forms of violence are conceptually distinct, they can be difficult to disentangle in reality. Groups that might plausibly be classified as guerrillas or insurgents often engage in terrorism as well;Footnote 159 terrorist groups can also engage in guerrilla warfare and insurgency.Footnote 160 As Hoffman notes, one third of the groups considered by the United States to be FTOs could equally be described as guerrillas.Footnote 161 Al Qaida and ISIL, in particular, exemplify the difficulty of classification. Al Qaida, a group indelibly associated with modern terrorism, has also been engaged in insurgencies through various regional affiliates. ISIL, in addition to facilitating and directing terrorist attacks elsewhere, undertook large-scale military operations in Syria and Iraq.Footnote 162 Indeed, ISIL—with its size, military capability and ability to hold territory—might have been better described in its heyday as ‘a pseudo-state led by a conventional army’.Footnote 163
The issue caused by terrorism eluding an easy definition is that it is the trigger for the application of the counterterrorism paradigm. Uncertainty about the definition of terrorism means uncertainty about the reach of that paradigm. And uncertainty here is consequential, because of what the application of the counterterrorism paradigm entails. As outlined in the previous part, States have enacted a range of counterterrorism measures as a response to the problem of foreign fighters joining the Syrian conflict, many of which significantly impact upon the rights of individuals, often on a preventive basis.Footnote 164 Locating the response to foreign fighting in the domain of counterterrorism law therefore has serious implications for affected individuals.
B. Terrorist Designation and Blind Spots
To some degree, these problems of defining terrorism can be masked by reliance on the process of terrorist listing or designation, whereby a group is identified as a terrorist group via an administrative process, which then typically triggers a range of measures designed to starve that group of support and visibility. While classifying groups such as ISIL and al Qaida as terrorist groups might be uncontroversial, there is considerable variation in terrorist designation practices beyond these core cases. Even amongst the United States, the United Kingdom, Canada and Australia—States that cooperate on matters of security and terrorism—there are marked differences in the number of designated terrorist organisations, and only 16 groups are designated as terrorist in all four jurisdictions.Footnote 165
As far as foreign fighting is concerned, the pivotal question will be whether the group a foreign fighter joins is a designated terrorist group.Footnote 166 Here, the definitional issues discussed above matter—for example, an armed group engaged in an insurgency may be considered to be a terrorist group and designated accordingly. Once the terrorist label is applied through the designation process, participation in the activities of that group will be an offence.Footnote 167 More specifically, travelling to fight for such a group will make one simultaneously a foreign fighter as well as a participant in a terrorist group, and hence liable to prosecution for a terrorist offence regardless of one's motivations for participating in the conflict or conduct in the conflict State.Footnote 168 If, on the other hand, an individual joins a group that is not a designated terrorist group, then the prosecution will need to prove the commission of a specific wrongful act (such as preparation for a terrorist act, or receiving terrorist training).Footnote 169
Relying on terrorist designation, then, has blind spots—notably, in relation to persons who travel to fight on behalf of the Syrian government, and persons who travel to join armed groups that are not designated as terrorist.Footnote 170 The 300-odd Western foreign fighters who joined armed groups fighting against ISIL provide a useful illustration.Footnote 171 The most common destinations for such fighters were two Kurdish groups, the YPG and the Peshmerga, while a smaller number fought under the aegis of groups such as the Kurdistan Workers' Party (PKK).Footnote 172 The choice of group is consequential. The PKK is considered a terrorist group by the United States, Canada, the United Kingdom, and Australia,Footnote 173 and a foreign fighter who fought with the PKK would face prosecution by virtue of that act alone.Footnote 174 By contrast, for a foreign fighter who fought with the YPG, the terrorist designation-based legal architecture is inapplicable,Footnote 175 meaning that prosecution would require proof of particular conduct that amounts to a crime.
C. The Expanding Empire of Counterterrorism Law
In addition to terrorism, insurgency and guerrilla warfare blending into one another as an empirical matter, terrorism has become such a broadly defined concept in law that it now encompasses activity traditionally the domain of IHL. More specifically, what in the past might have been understood as violence by guerrillas or insurgents in the course of armed conflict that fell to be regulated by IHL now threatens to be subsumed under the label of terrorism.
Both terrorism and armed conflict entail violence. But while certain acts of properly conducted and targeted violence are lawful under IHL, the same is not true of terrorist violence, which is categorically unlawful.Footnote 176 This distinction is reflected in pre-9/11 international treaties concerning terrorism, which leave hostile acts in the course of an armed conflict to be regulated by IHL.Footnote 177 But this distinction, based on the understanding that IHL already prohibited the kinds of acts that would be considered terrorism if done in peacetime,Footnote 178 has unravelled in recent times, leading to an expansion of counterterrorism law's domain. UNSCR 2178, as Krähenmann explains, exemplifies this trend:Footnote 179
[T]he Resolution unreflectively extends the concepts of ‘terrorism’ to situations of armed conflict, without considering the fundamental differences between terrorism and armed conflict, and the legal consequences flowing therefrom. Instead, the Resolution apparently presumes that engaging in acts of violence during an armed conflict abroad amounts to a terrorist offence, at least when fighting with certain groups.
The turning point was United Nations Security Council Resolution 1373,Footnote 180 passed by the Security Council in the aftermath of the terrorist attacks of 11 September 2001, which required States to criminalise terrorist acts, but did not define terrorism. This lacuna in effect delegated the matter to individual States.Footnote 181 Predictably, a variety of domestic legal definitions resulted, including definitions of terrorism that encompass acts during an armed conflict that are not prohibited by IHL.Footnote 182 The paradigmatic example is the influential definition in section 1 of the United Kingdom's Terrorism Act 2000.Footnote 183 Terrorism is defined as: (1) the use or threat of certain harmful acts; (2) intended to influence a government or to intimidate the public; (3) for the purpose of advancing certain ideological causes. As the United Kingdom Supreme Court acknowledged in R v Gul, the definition is expansive, perhaps even overly so.Footnote 184
This expansiveness stems from several features of the definition, the cumulative effect of which is to capture the activities of foreign fighters.Footnote 185 The first is the choice of language. The ‘designed to influence a government’ threshold is low in comparative terms,Footnote 186 and would be readily met by an act of violence directed against government armed forces by insurgents.Footnote 187 Second, the definition's scope is transnational. Conduct that seeks to influence a foreign government or intimidate an overseas public can amount to terrorism, and the underlying harmful acts can be committed domestically or overseas.Footnote 188 As Saul notes, in effect ‘[d]omestic political violence, hitherto largely the concern of the affected State, has been reclassified and elevated to an international security concern that demands transnational criminal repression’.Footnote 189 Moreover, foreign governments or all kinds, authoritarian or otherwise, are covered by the definition—that is, the section 1 definition is indifferent to claims of just cause or noble terrorism.Footnote 190 Finally, the section 1 definition does not provide an exception for acts done during armed conflict.Footnote 191 As the United Kingdom Supreme Court indicated in Gul, the section 1 definition encompasses attacks against armed forces by a non-State armed group in the course of a non-international armed conflict.Footnote 192
In sum, even conduct that is permitted under IHL—such as a lawful attack against a legitimate military target—will qualify as terrorism for the purposes of domestic counterterrorism law. This means that foreign fighters who engage in such acts overseas commit terrorist offences,Footnote 193 which in turn undermines the incentive to comply with IHL.Footnote 194 At this point, as Saul contends, counterterrorism law threatens to displace IHL completely:Footnote 195
The consequence of this approach is that all armed resistance to state forces, as well as fighting between non-state armed groups, becomes ‘terrorism’, regardless of how the fighting occurs or whether those involved respect IHL. It makes armed resistance to authoritarian regimes ipso facto illegal, regardless of means.
In addition to threatening to collapse distinctions between different forms of violence and their applicable legal regimes, the breadth of the section 1 definition creates a large space for prosecutorial discretion to operate.Footnote 196 The significance of this can again be illustrated by the treatment of anti-ISIL foreign fighters. Among this group were foreign fighters who fought against ISIL with a Kurdish militia group, the YPG. These fighters have generally not faced legal jeopardy upon returning home (whether to Australia, Canada, the United States or the United Kingdom),Footnote 197 suggesting a reluctance to prosecute these particular foreign fighters.Footnote 198 However, as Blackbourn et al. observe regarding the United Kingdom specifically, the approach to anti-ISIL fighters lacks consistency and is politically contingentFootnote 199—something illustrated by the prosecution in 2018 of two YPG returnees for terrorism offences.Footnote 200
Hence, prosecutorial discretion is ultimately an unreliable protection against a broad definition of terrorism. Moreover, as the United Kingdom Supreme Court observed in Gul, reliance on prosecutorial discretion is problematic from a rule of law standpoint, as it leaves individuals unable to ascertain ‘whether or not their actions or projected actions are liable to be treated by the prosecution authorities as effectively innocent or criminal’.Footnote 201
V. TOWARDS A NEUTRALITY LAW-BASED PARADIGM
Dealing with foreign fighting through the lens of counterterrorism is problematic for the reasons canvassed above. In this section, it is argued that a better way of regulating foreign fighting that avoids (or at least mitigates) these problems is to deal with foreign fighting on its own terms by employing a neutrality law-based paradigm. This entails the reinvigoration of so-called neutrality laws, domestic laws designed to ensure a State's neutrality, and making criminal the act of travelling to and participating in an armed conflict overseas, irrespective of the group joined or acts done in the theatre of armed conflict.
A. Neutrality Law
The international law of neutrality, a body of law applicable during international armed conflicts,Footnote 202 requires that neutral States not involve themselves in the conflict (abstention), and not favour one belligerent over the other (impartiality).Footnote 203 Although individuals of a neutral State volunteering for one of the belligerent States (that is, engaging in foreign fighting) does not implicate the responsibility of the neutral State,Footnote 204 some States nonetheless chose to enact laws whose rationale was to ensure the preservation of neutrality. These laws—variously referred to as neutrality laws or foreign enlistment laws—restricted individuals from engaging in foreign military service, and in some cases exceeded what international law required.Footnote 205
While the association between citizenship and military service in the Western tradition dates back to ancient Greece and Rome,Footnote 206 laws restricting foreign military service, which entail the State seizing from individuals ‘the authority to decide when, where, and why to use violence in the international system’,Footnote 207 were rare prior to the nineteenth century. It took until the late eighteenth century for nationalism and the power of the State to develop to a point where it became feasible for the State ‘to demand a monopoly over the military service of its citizens’.Footnote 208 As a result, foreign enlistment laws became increasingly common during the nineteenth century,Footnote 209 and by 1938, 70 per cent of States then in existence had enacted laws restricting foreign military service.Footnote 210
The first such law was the United States’ Neutrality Act of 1794,Footnote 211 the underlying purpose of which was to make the power to wage war a governmental rather than private matter; it constituted a legal assertion by the State to the exclusive authority to make war.Footnote 212 Among other matters, the Act prohibited citizens accepting a commission to serve a foreign prince or State, any person from enlisting or recruiting others to enlist in the service of a foreign prince or State, and any person from beginning or preparing a hostile military expedition against a foreign prince or State with whom the United States was at peace.Footnote 213 Notably, however, the law did not prevent an individual from leaving the United States with the intent of enlisting, although it did prohibit recruiting an individual in the United States to undertake that course of action.Footnote 214
The British law, the Foreign Enlistment Act 1870, is the successor to an earlier 1819 Act modelled on the American law.Footnote 215 The 1870 Act, applicable to all British subjects, prohibits enlisting in the military ‘of any foreign state at war with any foreign state at peace with Her Majesty’,Footnote 216 as well as leaving Her Majesty's dominions with the intent of enlisting in a foreign military ‘of any foreign state at war with a friendly state’.Footnote 217 Under those same provisions, recruiting another person to do either of those two acts is also prohibited. Canada also has a Foreign Enlistment Act,Footnote 218 which was enacted in 1937 as a response to the Spanish Civil War. The Act replaced the previously applicable Foreign Enlistment Act 1870, and it retains a similar set of prohibitions.Footnote 219
Australia's equivalent was the Crimes (Foreign Incursions and Recruitment Act) 1978, which set out several foreign incursion offences: engaging in hostile activity in a foreign State, entering a foreign State with the intention of engaging in hostile activity, and engaging in acts preparatory to either of the first two heads.Footnote 220 The Act also made it an offence to recruit persons to join organisations involved in hostile activity against foreign States or to recruit persons to join a foreign military.Footnote 221
B. Neutrality Law Redux
Australia's enactment of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 is at the heart of recent discussions about adopting a neutrality law paradigm to deal with foreign fighting.Footnote 222 This legislation repealed the Crimes (Foreign Incursions and Recruitment Act) 1978, but substantially replicated the foreign incursion offences in Part 5.5 of the Criminal Code,Footnote 223 thereby making unsanctioned foreign fighting by Australians a criminal offence. The 2014 Act also established the declared area offence, which makes it criminal for an individual to enter or remain in a certain area deemed off limits by the government.Footnote 224 As noted above, the United Kingdom recently followed Australia's example and enacted a similar offence of entering or remaining in a designated area.Footnote 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.Footnote 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.Footnote 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.Footnote 228 These offences therefore implicate a range of rights, including freedom of movement and the presumption of innocence.Footnote 229 Whether these offences can be said to be proportionate and justified limitations on these rights turns on issues of detail. Different review bodies have expressed differing views about this in relation to the Australian declared area offence, with some considering it a necessary and proportionate response,Footnote 230 and others not.Footnote 231
Here it is also worth noting that the Australian declared area offence is stricter than its British counterpart. Entering or remaining in a declared area is an offence unless the individual is solely in the area for a specified legitimate purpose. In order to rely on one of the specified legitimate purposes (which include providing humanitarian aid, performing official duties or working as a journalist), the individual must be able to satisfy an evidential burden.Footnote 232 And despite concerns that the offence is unduly burdensome on the innocent traveller, there has been little receptiveness to suggestions that the list of specified purposes should be expanded or supplemented by a procedure allowing for ad hoc ministerial authorisation.Footnote 233
As originally proposed by the government, the parameters of the United Kingdom's designated area offence were similar to the Australian declared area offence. Entering or remaining in a designated area exposed an individual to punishment, subject only to a defence of reasonable excuse. There was also a one-month grace period to allow people time to leave the area before the offence took effect.Footnote 234 Further amendments were added by the House of Lords and subsequently accepted by the government.Footnote 235 As a result, in addition to the defence of reasonable excuse and one-month grace period,Footnote 236 the designated area offence expressly excludes travel to a designated area exclusively for or in connection with one or more specified legitimate purposes (such as providing humanitarian aid, performing official duties or working as a journalist),Footnote 237 which pares back the scope of the offence considerably.
C. Why a Neutrality Law Paradigm?
Regulating foreign fighting under a neutrality law paradigm differs from regulating it under a counterterrorism paradigm in several respects. On balance, it is suggested that these differences make it the preferable means for regulating foreign fighting.
First, unlike the counterterrorism paradigm, an approach based on neutrality law targets foreign fighting directly, rather than treating it as a variant of terrorist activity; foreign fighting per se is the concern, not just the subset of returning foreign fighters who pose a risk of becoming domestic terrorists. Accordingly, the neutrality law paradigm gives greater recognition to the harm that foreign fighters can cause by exacerbating the armed conflict in the conflict State.Footnote 238 This aligns with the traditional focus of neutrality law, which prioritised harm to a foreign State ahead of harm to the home State.Footnote 239 By contrast, the counterterrorism paradigm is focused on ascertaining who from among thousands of foreign fighters have the requisite mix of ideological radicalisation and battlefield experience to constitute a terrorist threat to the home State. This fixation on the interests of the home State is perhaps most starkly illustrated by citizenship deprivation measures, whereby the home State's security is furthered (at least in the short run) by barring a foreign fighter's return, making that individual a problem for another State to deal with.Footnote 240
Second, since foreign fighting no longer needs to be forced through a counterterrorism framework,Footnote 241 the complexities of proof are also reduced. The State can be neutral, in the traditional liberal sense of the term, as between justified and unjustified causes for foreign fighting or between ‘good’ and ‘bad’ armed groups. It does not matter whether the particular group a foreign fighter joined was a terrorist group or a group resisting the terrorist group. It also does not need to be shown that the individual or group engaged in specific conduct amounting to terrorism. In rough terms, for the foreign incursion offence, what matters is that the individual committed violent acts in the conflict State outside of the command structure of a State military.Footnote 242 The declared area and designated area offences require even less—in essence, illicit travel to or presence in the off-limits area suffices.
That said, some issues of proof remain. Both the declared area and designated area offences will in practice likely still require proof that the individual's presence in the banned area was for illegitimate reasons.Footnote 243 And prosecutors attempting to prove these elements, or that an individual engaged in hostile activity in a foreign State, or entered a foreign State with the intention of engaging in hostile activity, will still face many of the evidential difficulties discussed earlier.
Third, the neutrality law paradigm can in theory create a blanket ban on foreign fighting. Of course, this presupposes a prior choice between subjecting foreign fighting to a blanket prohibition, or restricting it to certain instances, with regulation being discretionary and subject to pragmatic considerations. There are attractions to each. One rationale for a blanket approach—that is, prohibiting all foreign fighting, no matter for which side or for whatever motivation—is that waging war is properly the prerogative of the State rather than private individuals.Footnote 244 With no need to distinguish permissible from impermissible foreign fighting, this approach has the advantage of clarity and simplicity. This carries through to the message being communicated to potential foreign fighters: foreign fighting is illegal, as opposed to the more convoluted message at present that foreign fighting is inadvisable, and potentially illegal, depending on the group joined and the activities done in the conflict State.Footnote 245
Conversely, under a discretionary approach, as Lloydd explains, ‘States 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.’Footnote 246 This approach has the advantage of preserving a State's flexibility, and allowing consideration of the merits of the individual case. It might be that in particular circumstances an absolute prohibition on foreign fighting is contrary to a State's foreign policy interests;Footnote 247 it might be that the individual fighter is fighting for a just cause, or that the fighter has a particularly compelling motivation, such as that of a dual national rallying to defend their homeland.Footnote 248
Assuming that a blanket ban is thought desirable, then a neutrality law-based approach is superior. The Australian declared area offence, in particular, has the greatest potential to achieve something close to a blanket ban. Once a ministerial declaration is in place, it prohibits fighting for any party (or indeed engaging in any other non-exempted activity) in the declared area, since mere presence in that area presumptively constitutes an offence. Those same features, however, make it the most problematic from a rights standpoint.
By contrast, as discussed in section IV, the counterterrorism paradigm cannot achieve anything close to a blanket ban on foreign fighting without creating other problems. This is because the counterterrorism paradigm is based on the contested notion of terrorism. As such, it relies on the ipse dixit of the imperfect terrorist designation process, and expansive definitions of terrorism that can be so broad as to make fighting in an armed conflict, whether in compliance with the rules of IHL or not, a terrorist offence. In practice, prosecutorial discretion is needed to constrain the facially expansive reach of the counterterrorism paradigm.
To be clear, whilst relying on a neutrality law-based paradigm to create a blanket ban on foreign fighting avoids some of the issues associated with the counterterrorism paradigm, it does not eliminate all space for discretion to operate. Prosecutorial discretion is available in general, including in relation to the foreign incursion offences or the offence of being present in an area declared off-limits by the government. As of February 2018, there were no known prosecutions for the Australian declared area offence.Footnote 249 As for the foreign incursion offences, Lloydd observes that returned foreign fighters who fought for the right side (that is, against ISIL) have in practice either been ‘released without charge after police interviews, or had foreign incursion charges dropped through prosecutorial or Attorney-General discretion’.Footnote 250
Australia's foreign incursion provisions include another site for higher-level political discretion to operate as well. In addition to service in a foreign military being exempt from the general prohibition on foreign incursions, the Australian government can formally exempt service in specified armed forces where this is in the national interest.Footnote 251 This in effect allows the Australian government to sanction service in any armed group on an ad hoc basis,Footnote 252 and provides another formal avenue for the rigour of a blanket ban to be tempered by pragmatic foreign policy considerations.Footnote 253
There is continuity here with the domestic neutrality and foreign enlistment laws discussed earlier, which in practice have been sparingly enforced. For example, the stringency of the United States’ neutrality laws on paper has not been matched by stringency of enforcement, at least in the twentieth century.Footnote 254 Similarly, there has not been a single prosecution for illegal enlistment or recruitment under the United Kingdom's Foreign Enlistment Act 1870,Footnote 255 nor is there any record of convictions under its Canadian equivalent.Footnote 256 As Arielli observes, the application of these laws has ‘always been subject to domestic considerations of political expediency’.Footnote 257 In the end, discretion, and hence the influence of pragmatic considerations, is inescapable.
The fourth and final reason for preferring the neutrality law paradigm to the counterterrorism paradigm is that it provides a better general justification for limiting the rights of would-be foreign fighters. While the need to protect the public from terrorism is a familiar mantra trotted out by politicians, it applies less readily to foreign fighters who lack any connection to a terrorist group or terrorist acts. Such individuals are subject to the counterterrorism paradigm on the basis that they cannot be readily distinguished from other foreign fighters who join the likes of ISIL, some of whom may eventually return and constitute a threat to their home State.
Under a neutrality law paradigm, the rationale for restricting rights is different. As discussed above, earlier neutrality laws imposed restrictions on foreign enlistment, which in turn was based on what is often considered a defining characteristic of the State—its monopoly on violence. And the notion that the State, and not individuals within it, decides on when force shall be deployed externally is defensible, at least in the case of a functioning democracy with proper channels of political and electoral accountability. This rationale, namely the State's need to control externally-directed private violence by its citizens, applies with equal force to the foreign fighter who intends only to fight against terrorist groups and the foreign fighter who intends on joining a terrorist group with a view to transitioning to domestic terrorism in the future.
VI. CONCLUSION
This article set out to map and discuss the legal response of the United Kingdom, the United States, Canada and Australia to one particular instance of the phenomenon of foreign fighting. These legal responses vary as to when they apply and how they are imposed. But, for the most part, they operate under a paradigm based on counterterrorism law. However, dealing with foreign fighting through the lens of counterterrorism is problematic. Foreign fighting may overlap with terrorist activity, but not necessarily so. Moreover, terrorism is a particularly vexed concept on which to base a framework of regulation. Rather than working through the proxy of counterterrorism, it is suggested that a better approach is to deal with foreign fighting directly by adopting a paradigm based on neutrality law. A neutrality law paradigm avoids some of the pitfalls associated with the counterterrorism paradigm and provides a more stable and defensible means for regulating foreign fighting, which, if history is any guide, will remain a recurring phenomenon.
