Last week, interior ministers of the 15 countries sitting at the UN Security Council met to discuss foreign fighters. They did so as part of the follow-up of Resolution 2178 (2014), which defines foreign fighters as people “who travel or attempt to travel to a State other than their States of residence or nationality, and other individuals who travel or attempt to travel from their territories 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”.
This is hardly a new phenomenon, but foreign fighters are getting more and more attention in relation to Syria and Iraq. The number of foreign fighters in both countries could exceed 20,000, and according to the Director of Europol, between 3,000 and 5,000 of them would come from EU countries.
In Resolution 2178, as well as previous ones since 2001, the Security Council urges states to adopt legislative and criminal measures to prevent terrorism and bring suspects to justice.
With the intention to operationalise the mandate of the Security Council, the Council of Europe is working on a draft protocol to the 2005 European Convention on the Prevention of Terrorism. This text criminalises the action of joining a group and “participating” in its activities “for the purpose of committing or contributing to the commission” of terrorist offenses (Article 2), “receiving training for terrorism” (Article 3), “travelling abroad for the purpose of terrorism” (Article 4), “funding travelling abroad for the purpose of terrorism” (Article 5), or “organising or otherwise facilitating travelling” for that purpose (Article 6).
As noted by Scheinin, the formulation of these provisions relies on the intent (“purpose”) of the person to participate or contribute towards the commission of a terrorist offence.
The draft protocol, therefore, does not call for the criminalisation of travelling to conflict zones, and individual countries have not modified their criminal legislation to punish travelling per se. The subjective element of intent is required.
However, a variety of measures are already being taken in relation to foreign fighters, ranging from passport confiscation (Germany), attempts to bar foreign fighters from acquiring national citizenship (Austria), stripping known foreign fighters of access to social services (Belgium), or revoking naturalised nationality (UK and Netherlands) (see reports here, here and here).
So far, these measures are targeting Islamic foreign fighters travelling to conflict areas with a religious motivation. However, there is no reason why these measures could not be potentially applied to other conflicts. For example, Spanish authorities recently detained eight nationals that had fought in Ukraine on the pro-Russian side. Apparently their actions may have infringed Spain’s neutrality, and therefore compromise the country’s “peace or independence”. Continue reading “Against the criminalisation of foreign fighters with the discourse of terrorism”