Abstract
Although the phenomenon of ‘foreign fighters’ is not a new one, a reported recent increase in their numbers and in the range of countries from which they originate, the groups they join, their motivations and subsequent paths have highlighted the complicated nature of this issue and raised concerns across the world. Yet the legal obligations as well as the exact level of legal protection these individuals enjoy once they join an ongoing conflict is not entirely clear. In particular, International Humanitarian Law (IHL), which aims to protect the basic rights of individuals and groups affected by armed conflicts, does not provide specific guidance on what status they might be entitled to and, consequently, on how they should be treated. The present chapter seeks to shed some light on this matter by reviewing the main IHL treaties, their commentaries, judicial decisions rendered by international tribunals and relevant scientific contributions. It will do so by looking at IHL applicable in International Armed Conflicts (IACs) and in Non-International Armed Conflicts (NIACs), as the status these two branches of IHL confer to captured fighters is rather different. Lastly, ‘foreign fighters’ will be distinguished from ‘mercenaries’, on the basis of the legal definition currently in force under the law of armed conflict.
The author is Assistant Professor of International Law at the Scuola Superiore Sant’Anna, Pisa, Italy.
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Notes
- 1.
For the purposes of the present volume, foreign fighters are defined 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.
- 2.
P. Jackson, ‘Ukraine war pulls in foreign fighters’, BBC News, 1 September 2014, available at http://www.bbc.com/news/world-europe-28951324. Accessed 29 March 2015.
- 3.
See Malet 2013, p. 6, reminding us that ‘although transnational insurgents comprised less than 10% of the Iraqi resistance, they were responsible for more than 90 per cent of suicide bombings and high-lethality attacks’.
- 4.
The most recent example is the Additional Protocol to the 2005 Convention on the Prevention of Terrorism, adopted by Council of Europe member states on 19 May 2015, to set legally-binding international standards aimed at tackling the ‘foreign terrorist fighters’ phenomenon. The text of the Protocol is available at http://conventions.coe.int/Treaty/EN/Treaties/Html/ProtTerrorism.htm. Accessed 22 May 2015. For a forceful critique of the Protocol, based on the sweeping definitions used, see Scheinin 2015.
- 5.
The expression international humanitarian law will be used throughout the chapter to refer to the rules applicable during armed conflicts to limit the use of violence. While it is appreciated that the expressions ‘laws of war’, ‘law of armed conflict’ and ‘jus in bello’ may be deemed not to have exactly the same meaning, they will occasionally be used as synonyms of IHL.
- 6.
See Krähenmann 2014, pp. 36–43.
- 7.
These include Resolutions 1267 (1999) of 15 October 1999; 1373 (2001) of 28 September 2001; 1535 (2004) of 26 March 2004; 1540 (2004) of 28 April 2004; 1566 (2004) of 8 October 2004; 1617 (2005) of 29 July 2005; 1699 (2006) of 8 August 2006; 1730 (2006) of 19 December 2006; 1735 (2006) of 22 December 2006; 1822 (2008) of 30 June 2008; 1904 (2009) of 17 December 2009; 1988 (2011) of 17 June 2011; 1989 (2011) of 17 June 2011; 2083 (2012) of 17 December 2012; 2133 (2014) of 27 January 2014; 2161 (2014) of 17 June 2014; 2170 (2014) of 15 August 2014; 2178 (2014) of 24 September 2014; 2195 (2014) of 19 December 2014, and 2199 (2015) of 12 February 2015, all of which called upon states to take action and curb the threat posed by international terrorism. See Chap. 14 by de Guttry in this volume.
- 8.
It is worth noting that these Resolutions define ‘foreign terrorist fighters’ as ‘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’ (emphasis added), S/RES/2178 (2014), 24 September 2014, preamble. Clearly these resolutions are offering a definition which oversteps armed conflict scenarios, and the very idea of naming such individuals ‘fighters’ is somehow questionable given that they could be engaged in criminal activities detached from any armed conflict. See Chap. 10 by Heinsch in this volume.
- 9.
- 10.
The concept of ‘continuous combat function’ has been developed by the International Committee of the Red Cross (ICRC) to indicate ‘a continuous function for the group involving [a person’s] direct participation in hostilities’, see Melzer 2009, p. 33. The notion of ‘direct participation in hostilities’ has been the subject of much debate over the last few years. The ICRC—which has been given a key role in promoting the codification of IHL and in supervising its implementation - has made a remarkable contribution to the discussion by developing its Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (2009). According to recommendation V of the Guidance, ‘[i]n order to qualify as direct participation in hostilities, a specific act must meet the following cumulative criteria: 1. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and 2. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and 3. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus)’. For a critical analysis of the notion as developed by the ICRC see Parks 2009 and Schmitt 2010.
- 11.
- 12.
See the Convention relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, 75 UNTS 135, [hereinafter GC III], Article 2, which defines the scope of IACs as ‘[…] cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them’, adding that ‘[t]he Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.’
- 13.
See Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3, Article 1(4).
- 14.
GC III, Article 3 [hereafter Common Article 3], which applies ‘[i]n the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties’. In interpreting Common Article 3, the International Criminal Tribunal for the former Yugoslavia [hereafter ICTY] has exemplified which elements need to be present in order to distinguish a situation of violence from a NIAC. After stating that an armed conflict exists ‘whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’ (ICTY, Prosecutor v. Tadic, IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para 70), the Yugoslavia tribunal went on to specify that, in order to qualify the situation as a NIAC, the parties to the conflict need to possess a certain degree of organisation, and the armed violence among them has to achieve a certain level of intensity. See ICTY, Prosecutor v. Haradinaj, Balaj and Brahimaj, IT-04-84-T, Judgment of 3 April 2008, paras 49 and 60.
- 15.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non–International Armed Conflicts, 1125 UNTS 609–99, Article 1. As this treaty has hardly ever found concrete application, the present analysis concerning NIACs will mainly revolve around Common Article 3 and relevant customary IHL.
- 16.
The level of required control is the object of debate. The International Court of Justice maintains that ‘effective control’ of the rebel armed forces by a foreign State is necessary to internationalise a conflict. Under this test, the conduct of a non-State actor would be attributable to the controlling State only if the latter ‘directed or enforced the perpetration of the acts contrary to human rights and humanitarian law’, see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) [1986] ICJ Rep 14, para 115 (emphasis added). The test hence sets a rather high threshold for the attribution of conduct of non-State actors to a State. The ICTY, in turn, decided that mere ‘overall control’ is sufficient to turn a NIAC into an IAC. Such overall control goes beyond the mere financing and equipping of such forces and involves also ‘participation in the planning and supervision of military operations’, yet it does not require ‘that such control should extend to the issuance of specific orders or instructions relating to single military actions, whether or not such actions were contrary to international humanitarian law’. See ICTY, Prosecutor v. Tadic, IT-94-1-A, Appeal Judgement of 15 July 1999, para 104.
- 17.
See Kolb and Hyde 2008, pp. 80–1.
- 18.
Note, however, that in the case of a third-State intervention alongside an insurgent movement, the conflict between the latter and the State it is fighting would still classify as a NIAC. Ibid.
- 19.
AP I, Article 51(3). This rule represents a norm of customary international humanitarian law and is hence also binding on States which have neither signed nor ratified Additional Protocol I; see Henckaerts and Doswald-Beck 2005, p. 19 ff.
- 20.
AP I, Article 43(2).
- 21.
AP I, Article 41. See rule 47 of the ICRC study on customary IHL, which lists the prohibition on attacking individuals hors de combat as reflecting customary law, Henckaerts and Doswald-Beck 2005, p. 164 ff.
- 22.
AP I, Article 44(1).
- 23.
GC III, Article 118.
- 24.
- 25.
To date, AP I has been ratified or accessed to by 174 States, see the ICRC’s webpage at www.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treatySelected=470. Accessed on 30 March 2015.
- 26.
For instance, Article 87 of GC III establishes that, when fixing the penalty for a crime committed by a POW, the courts of the detaining power ‘shall take into consideration, to the widest extent possible, the fact that the accused, not being a national of the Detaining Power, is not bound to it by any duty of allegiance’.
- 27.
Indeed, the ICRC recalls that ‘nationality is not a condition for prisoner-of-war status according to long-standing practice and to Article 4 of the Third Geneva Convention’, see Henckaerts and Doswald-Beck 2005, p. 393.
- 28.
See Pictet 1960, p. 58.
- 29.
Ibid., p. 57.
- 30.
Ibid., p. 60.
- 31.
Ibid., p. 61.
- 32.
The ICRC Commentary to GC III requires that such fighters must in all operations ‘[…] be guided by the moral criteria which, in the absence of written provisions, must direct the conscience of a man; in launching attacks, they must not cause violence and suffering disproportionate to the military result they may reasonably hope to achieve. They may not attack civilians or disarmed persons and must […] respect the principles of honour and loyalty’, Pictet 1960, p. 61.
- 33.
See Lapidoth 1978, p. 178.
- 34.
See Rosas 1976, p. 361.
- 35.
The ICTY Trial Chamber in the Delić case describes at length how such a process of incorporation can come about. See Prosecutor v. Delić, IT-04-83-T, Judgement of 15 September 2008, paras 165-199. The case revolved around the international criminal responsibility of the accused with regards to war crimes committed by members of certain armed groups who fought alongside the Bosnian army, many of whom were Muslims coming from Arab States.
- 36.
Ibid., para 360.
- 37.
It should be borne in mind that the conflict had been classified as an international one by the ICTY because of the control exercised by the Federal Republic of Yugoslavia on the Bosnian Serb troops. Adopting the ‘overall control’ test, the Tribunal ruled that ‘the armed forces of the Republika Srpska were to be regarded as acting under the overall control of and on behalf of the FRY. Hence, even after 19 May 1992 the armed conflict in Bosnia and Herzegovina between the Bosnian Serbs and the central authorities of Bosnia and Herzegovina must be classified as an international armed conflict’, ICTY, Prosecutor v. Tadic, IT-94-1-A, Appeal Judgement of 15 July 1999, para 162.
- 38.
As will be remembered, neither the United States nor Afghanistan were parties to AP I at the relevant time and the conflict clearly was of an international nature, as recognized by the US Government itself, see Presidential Memorandum, 7 February 2002, para 2(c). Also, Al Qaeda forces were packed with foreign nationals, as testified by the fact that the US captured and detained in Guantanamo Bay individuals coming from more than 30 different countries, see US Department of Defense, List of Detainees who went through complete CSRT process, 2006, available at http://www.dod.gov/pubs/foi/Reading_Room/Detainee_Related/detainee_CSRT_list.pdf. Accessed on 15 May 2015.
- 39.
See Gunaratna 2002, pp. 54 and 75.
- 40.
See Vierucci 2003, p. 294.
- 41.
According to Colgan and Hegghammer, one prominent feature of foreign fighters is that ‘they use insurgent tactics to achieve their ends’, see Colgan and Hegghammer 2011, p. 6.
- 42.
- 43.
Compare Rule 4 of the ICRC Customary international humanitarian law study, according to which ‘[t]he armed forces of a party to the conflict consist of all organized armed forces, groups and units which are under a command responsible to that party for the conduct of its subordinates’, see Henckaerts and Doswald-Beck 2005, p. 14.
- 44.
See Greenwood 1991, p. 113.
- 45.
The relevant part of Article 44 (3) reads as follows:
‘Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as combatant, provided that, in such situations, he carries his arms openly:
(a) during each military engagement, and
(b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.’
The ICRC Commentary to Article 44 explicitly recognizes that ‘this article is mainly aimed at dealing with combatants using methods of guerrilla warfare’, de Preux 1987b, p. 520.
- 46.
In the view of the US administration the modification of pre-existing requirements for qualification as a combatant undermined the principle of distinction and, hence, increased the risks to the civilian population. See Aldrich 1991, p. 137.
- 47.
However, with specific reference to foreign fighters having the nationality of a neutral State, it should be recalled that such a fighter would lose his protected status if he ‘commits acts in favor of a belligerent, particularly if he voluntarily enlists in the ranks of the armed force of one of the parties’. And yet, he ‘shall not be more severely treated by the belligerent as against whom he has abandoned his neutrality than a national of the other belligerent State could be for the same act’, see Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, The Hague, 18 October 1907, Article 17.b. One might also wonder if such rule could apply to every citizen of a State not directly involved in the conflict—as opposed to only citizens of neutral States—given that Article 16 of the Convention defines a neutral person simply as a national of a State ‘which is not taking part in the war’. This would mean that, in armed conflicts between State parties to the 1907 Convention, foreigners who join the armed forces of the territorial state would enjoy POW status upon capture and be protected by GC III. The only exception, of course, would be represented by neutral citizens falling under the definition of mercenary as codified by Article 47 of AP I, see Zemanek 1982, p. 6 and infra, Sect. 9.4.
- 48.
See de Preux 1987a, p. 512.
- 49.
Ibid., p. 513.
- 50.
See de Preux 1987b, p. 522.
- 51.
For discussion on the difference between the two provisions see Hollywood 2013, pp. 47–51.
- 52.
It should be mentioned that Article 6(5) of AP II invites states ‘to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict’ once the conflict is over. The rule has been interpreted to cover only amnesties for conduct which would not amount to a serious violation of IHL or international human rights law and, as such, it is considered to reflect customary law, see Henckaerts and Doswald-Beck 2005, p. 611.
- 53.
See Pictet 1960, p. 40. The text goes on to suggest that ‘once the fighting reaches a certain magnitude and the insurgent armed forces meet the criteria specified in Article 4A(2), the spirit of Article 3 certainly requires that members of the insurgent forces should not be treated as common criminals’. Yet nothing in Common Article 3, nor in AP II, seems to suggest the existence of a legal obligation to condone the behaviour of insurgents.
- 54.
Ibid., p. 41.
- 55.
Diplomatic Conference 1949, Final Record, Vol. II B, p. 334. See also Moir 2002, p. 60.
- 56.
ICTY, Prosecutor v. Limaj, IT-03-66-T, Judgment of 30 November 2005, paras 169–170.
- 57.
Ibid., (emphasis added).
- 58.
See Vité 2009, p. 78.
- 59.
S. Bronstein and D. Griffin, ‘Self-funded and deep-rooted: How ISIS makes its millions’, CNN News, 7 October 2014, available at http://edition.cnn.com/2014/10/06/world/meast/isis-funding/. Accessed 15 May 2015.
- 60.
See UN Human Rights Council, Report of the independent international commission of inquiry on the Syrian Arab Republic, UN Doc A/HRC/27/60, 13 August 2014.
- 61.
F. Biloslavo, ‘Ukraine: Far-Right Fighters from Europe Fight for Ukraine’, Eurasianet.org, 6 August 2014, available at http://www.eurasianet.org/node/69401. Accessed 15 May 2015. Of course, should it emerge that the independence movements are in actual fact under the control of a third State, the conflict would change its nature into an international one between the Ukraine and such State. See supra, n 19.
- 62.
See Ministry of Internal Affairs of the Ukraine, ‘The Separatists Fired on a Bus with Fighters of the “Azov” Special Police Battalion’, 7 May 2014, available at http://www.mvs.gov.ua/mvs/control/main/en/publish/article/1047007. Accessed 15 May 2015.
- 63.
See de Preux 1987c, p. 577.
- 64.
At a global level the most important instrument is the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries, GA Resolution 44/34 of 4 December 1989, entered into force on 20 October 2001.
- 65.
Convention for the Elimination of Mercenarism in Africa, OAU Doc CM/ 817 (XXIX) Annex 11 Rev, adopted by the Organization of African Unity (now African Union) on 3 July 1977, entered into force on 22 April 1985.
- 66.
For a general overview see Fallah 2006, pp. 599–611.
- 67.
AP I, Article 47(1). According to the ICRC, this provision reflects customary international humanitarian law, see Henckaerts and Doswald-Beck 2005, pp. 391–395. While AP I is only applicable in IACs, it is generally accepted that the two anti-mercenarism conventions are also applicable in situations of NIAC.
- 68.
Note that the definitions offered by the 1977 OAU Convention and by the 1989 UN Convention are slightly broader than the one at hand.
- 69.
The same result would be obtained by applying letter (e) of Article 47, as the mentioned individuals are all members of the regular armed forces of a party to the conflict.
- 70.
See n. 10 supra.
- 71.
See de Preux 1987c, pp. 580–581.
- 72.
Sassoli et al. 2011, p. 2.
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Sommario, E. (2016). The Status of Foreign Fighters under International Humanitarian Law. In: de Guttry, A., Capone, F., Paulussen, C. (eds) Foreign Fighters under International Law and Beyond. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-099-2_9
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