Abstract
This chapter examines the phenomenon of ‘foreign fighters’ from an International Criminal Law point of view. The author examines whether the mere status of ‘being a foreign fighter’ entails any kind of individual criminal responsibility. Furthermore, the types of international crimes that may potentially be committed by foreign fighters in international and non-international armed conflicts, but also outside of armed conflict scenarios, will be examined. The chapter further discusses the different modes of liability which could be applicable regarding the respective crimes committed by these kinds of actors. Finally, this chapter explores in which national and international fora foreign fighters might be prosecuted for committing international crimes and which conditions need to be met in order for such prosecutions to take place.
Robert Heinsch is Associate Professor of Public International Law at the Grotius Centre for International Legal Studies and the Director of the Kalshoven-Gieskes Forum on International Humanitarian Law at Leiden University. The author would like to thank his research assistants Ms. Anja Jovović, LL.M. and Ms. Anne Lorenzat, LL.M. for their support in collecting the material this Chapter is based on, as well as proof-reading and editing the final version.
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Notes
- 1.
- 2.
See, for example, Article 47 AP I.
- 3.
See, for example, Bakker et al. 2013, pp. 2–3.
- 4.
See, for the definition, the introductory chapter (Chap. 1) of this book.
- 5.
This is also evident from the fact that other academics do not usually examine this problem, see e.g. Bakker et al. 2013, pp. 9–11.
- 6.
- 7.
Article 47(2)(c) AP I.
- 8.
Colgan and Hegghammer’s definition of foreign fighters distinguishes them from mercenaries in this way, proposing that while the former may be paid, financial compensation is not their primary motivation; see Colgan and Hegghammer, p. 6. See also Chap. 5 by Frenett and Silverman in this volume.
- 9.
Although the UN Security Council has, in Resolution 2178 (2014), called on States to ‘ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice, and decide[d] that all States shall ensure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense’ (para 6), that does not make being a foreign fighter an international crime.
- 10.
See, for an explanation of the concept, Fleck 2013, margin no. 119.
- 11.
For a comprehensive analysis of attempts to define ‘terrorism’ since 1920, see Saul 2006.
- 12.
‘[…] the following acts […] are and shall remain prohibited at any time and in any place whatsoever: […] acts of terrorism’.
- 13.
See de Roy van Zuijdewijn and Bakker 2014.
- 14.
Prosecutor v. Charles Ghankay Taylor, Judgment (Appeals Chamber), SCSL-03-01-A, 26 September 2013.
- 15.
Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Decision (Appeals Chamber), Case No. SLT_11-01/1, 16 February 2011.
- 16.
Article 314 of the Lebanese Criminal Code defines terrorist acts as ‘acts intended to cause a state of terror and committed by means liable to create a public danger such as explosive devices, inflammable materials, toxic or corrosive products and infectious or microbial agents’; reproduced on: http://hrbrief.org/2011/10/the-special-tribunal-for-lebanon-defines-terrorism/. Accessed 24 August 2015.
- 17.
Cassese 2008, p. 11 (emphasis added).
- 18.
Combatant status is only recognised in those IHL instruments relating to international armed conflicts, see e.g. Article 43 AP I. See, for further details, the chapter by Sommario (Chap. 9) in this volume.
- 19.
For an overview of the position of eleven countries, including the US, the UK, the Netherlands and Germany, see Centre for Security Studies 2014.
- 20.
Rule 108, ICRC Customary International Humanitarian Law Study 2005.
- 21.
‘Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.’
- 22.
‘In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.’
- 23.
For example, with regard to serious violations of API other than grave breaches, the ICTY had to examine whether such violations entail individual criminal responsibility notwithstanding the fact that the violation is not listed as a grave breach, see ICTY, Prosecutor v. Galić, Case No. IT-98-29-T, Judgment and Opinion, 5 December 2003, para 113–129.
- 24.
Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts (CDDH), Federal Political Department, Berne, 1978, Vol. VI.
- 25.
US, Air Force Commanders’ Notebook, 1980, 15–3, as cited in Customary International Humanitarian Law Study, Vol. 2, ch. 33, pp. 2576–2577. See also Singer 2004, p. 524.
- 26.
The crime of ‘wilful killing’ (Article 8(2)(a)(i)) and ‘murder’ (Article 8(2)(c)(i)) is essentially the same, except that the former applies to international armed conflicts, and the latter to conflicts of a non-international character: Prosecutor v. Krstić, Case no. IT-98-33-T, Judgment, 2 August 2001, para 484–485; Prosecutor v. Stakić, Case no.IT-97-24-T, Judgment, 31 July 2003, para 631.
- 27.
The war crime of torture is significantly different from that of torture as a crime against humanity, in that it requires proof of purpose, and so has been described as a crime of specific intent in Bemba (ICC-01/05-01/08), Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges Against Jean-Pierre Bemba Gombo, 15 June 2009, para 195, 293, 294, 299–300; ‘inhumane treatment’ has been described as the ‘umbrella under which the remainder of the listed ‘grave breaches’ in the Conventions fall’ in Prosecutor v. Blaskić, Case no. IT-95-14-T, Judgment, 3 March 2000, para 154–155.
- 28.
‘[T]he Diplomatic Conference preferred not to place an absolute prohibition on transfer of all kinds, as some might up to a certain point have the consent of those being transferred’, however the term ‘forcibly’ is not restricted to solely ‘physical force, but includes threat of force, coercion, such as that caused by fear of violence, duress, detention, psychological oppression…’, ICTY, Prosecutor v. Krstić, Case no. IT-98-33-T, Judgment, 2 August 2001, para 528 ff.
- 29.
See, for an explanation of the concept, Fleck 2013, margin no. 117.
- 30.
There have been documented reports of the armed group, ISIS, whose recruits are largely made of foreign fighters, attacking churches, historic monuments and buildings dedicated to religion and culture which did not contain any military objectives, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic 2014.
- 31.
In regard to rape, the ICC Elements of Crimes incorporates aspects of case law from both the ICTR and the ICTY, in Akayesu and Furundzija respectively, making the provision gender neutral, Dörmann 2003, p. 327.
- 32.
The rules on international armed conflicts have received greater attention from States, due to the reciprocal advantage of limiting certain methods and means of warfare, whereas they have been less enthusiastic about limiting their freedom of action internally. These distinctions can be seen in Article 8(2) ICC Statute, and in the ICRC CIL Study.
- 33.
Prosecutor v. Tadić, Case no. IT–94–1–A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995), para 94.
- 34.
For further details, see Ambos in: Triffterer (2008), margin nos. 276 et seq.
- 35.
For further details, see Ambos in: Triffterer (), margin nos. 305 et seq.
- 36.
For further details, see Schabas 2010, p. 235 et seq.
- 37.
ICC Elements of Crimes (2011), Article 8 (Introduction)(c).
- 38.
ICTY, Prosecutor v. Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2 October 1995, para 70.
- 39.
Ibid., para 562.
- 40.
The original proposal on the mental element read that the accused ‘was aware of the factual circumstances that established the existence of an armed conflict’ (emphasis added) and was later dropped to indicate that the accused need only be aware of some factual circumstances. See Dörmann 2003, p. 21.
- 41.
Independent Commission of Inquiry on Syria 2014, p 1.
- 42.
The crime of extermination resembles that of genocide in regard to the group element, however the individuals forming the groups need not share the same characteristics, such as the same religion or nationality. A single killing may amount to extermination if it occurred in the broader context of a mass killing, and if the perpetrator acted in the knowledge of this context, Elements 3 and 4 to Article 7(1)(b) ICC Statute.
- 43.
The prohibition of torture is a norm of jus cogens, absolute and non-derogable in any circumstance; ICTY, Prosecutor v. Delacić et al., Case no. IT-96-21-T, Trial Judgment, 16 November 1998, para 454. This is significant in regard to foreign fighters, who travel, and places States under an obligation to extradite or prosecute suspected offenders who are within its territory or otherwise under its jurisdiction, even if the crimes were not committed on its territory, by, or against one of its nationals.
- 44.
See, for further information on persecution under the ICC Statute: Boot and Hall, Article 7, in Triffterer 2008, margin nos. 57 et seq.
- 45.
Independent Commission of Inquiry on Syria, 2014, p. 13.
- 46.
Independent Commission of Inquiry on Syria, 2014, p. 3.
- 47.
Article 7(2)(a) ICC Statute.
- 48.
Situation in the Republic of Kenya in Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, PTC, Case no. ICC-01/09-01/11, Prosecution’s Response to the Defence Challenges to Jurisdiction, 16 September 2011, para 24.
- 49.
Human Rights Investigations (2013) ‘Is Obama supporting genocide in Syria’, http://humanrightsinvestigations.org/2013/09/03/obama-supporting-genocide-in-syria/. Accessed 20 May 2015.
- 50.
Cassese writes: ‘it follows from this description of the specific mens rea requirement in the case of genocide that other categories of mental element such as negligence, recklessness (or dolus eventualis) are excluded’, in Cassese et al. 2002, p. 338.
- 51.
However, ‘to realize genocidal intent…is much more difficult to be proven by circumstantial evidence or inferences than the fact that the objective appearance of the crime, the actus reus, was the result of an intentional behaviour.’, Triffterer 2001, Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such, p. 406.
- 52.
On the problem of finding a coherent decision concerning ‘terrorism’, see Paulussen 2012b, p. 9.
- 53.
For an overview on the different forms of terrorism, see Dinstein 1989, pp. 55–73; see also Cassese 2005, pp. 125–131.
- 54.
Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 23 September 1971, available at: https://treaties.un.org/doc/db/Terrorism/Conv3-english.pdf.
- 55.
International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997, available at: https://treaties.un.org/doc/db/Terrorism/english-18-9.pdf.
- 56.
International Convention for the Suppression of the Financing of Terrorism, Adopted by the General Assembly of the United Nations in resolution 54/109 of 9 December 1999, available at http://www.un.org/law/cod/finterr.htm.
- 57.
See in general Jurdi 2007, pp. 1125–1138.
- 58.
Article 2 of the STL-Statute reads: ‘The following shall be applicable to the prosecution and punishment of the crimes referred to in Article 1, subject to the provisions of this Statute: (a) The Provisions of the Lebanese Criminal Code relating to the prosecution and punishment of acts of terrorism …’.
- 59.
Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I, Feb. 16, 2011, para 85.
- 60.
Roberts 2002, p. 18.
- 61.
See for a critical evaluation: Paulussen 2012a, p. 9.
- 62.
Ambos 2011, pp. 655–675.
- 63.
Stier 2014, pp. 115–129.
- 64.
Cassese 2005, p. 125.
- 65.
Powderly 2013; see also Powderly 2011, pp. 347–363.
- 66.
See on this topic specifically Jodoin 2007, pp. 77–115.
- 67.
Academy Briefing No. 7 2014, p. 28.
- 68.
Cf. Prosecutor v. Galić, Case no. IT-98-29-T, Trial Chamber, Judgment and Opinion, 5 December 2003.
- 69.
Ibid., para 12, 94, pp. 133–188.
- 70.
Academy Briefing No. 72014, 24–25; Cassese 2005, pp. 127–128.
- 71.
This has been the approach of the ICTY since the landmark decision in Prosecutor v. Tadić, Trial Chamber, Decision on Jurisdiction (1995), para 91.
- 72.
Prosecutor v. Galić, Case no. IT-98-29-T, Trial Chamber, Judgment and Opinion, 5 December 2003, para 93–138.
- 73.
The four Tadić criteria have been used since Prosecutor v. Tadić, Case no. IT-94-1, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para 94 (Tadić Jurisdiction Decision) in order to determine what conditions have to be fulfilled in order to establish a war crime under international criminal law.
- 74.
Prosecutor v. Galić, Case no. IT-98-29-T, Trial Chamber, Judgment and Opinion 5 December 2003, para 94.
- 75.
Ibid., para 95–105.
- 76.
Ibid., para 106–112.
- 77.
Ibid., para 113–137.
- 78.
Ibid., para 114.
- 79.
Ibid., para 115.
- 80.
Ibid., para 117.
- 81.
Ibid., para 121.
- 82.
Ibid., para 123.
- 83.
Prosecutor v. Galić, Case No. IT-98-29-T, Trial Judgement, 5 December 2003, para 12, 94, 133–138, para 98.
- 84.
Ibid., para 128.
- 85.
Prosecutor v. Brima, Kamara and Kanu (AFRC Case), Case no. SCSL-04-16-T, Trial Chamber Judgment, 20 June 2007, para 662.
- 86.
Ibid., para 663–666.
- 87.
CDF Cases, Trial Chamber, para 170; AFRC Case, Trial Chamber, para 667; RUF case, Trial Chamber, para 113; and Taylor case, Trial Chamber, 2012, para 403.
- 88.
ICRC Commentary, margin no. 4785 ‘“Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” Attacks aimed at terrorizing are just one type of attack, but they are particularly reprehensible. Attempts have been made for a long time to prohibit such attacks, for they are frequent and inflict particularly cruel suffering upon the civilian population. Thus the Draft Rules of Aerial Warfare, prepared in The Hague in 1922, already prohibited such attacks. (24) Air raids have often been used as a means of terrorizing the population, but these are not the only methods. For this reason the text contains a much broader expression, namely “acts or threats of violence” so as to cover all possible circumstances; margin no. 4786 Any attack is likely to intimidate the civilian population. The attacks or threats concerned here are therefore those, the primary purpose of which is to spread terror, as one delegate stated during the debates at the Conference. (25)’.
- 89.
ICRC Commentary AP II, Article 13, margin no. 4538.
- 90.
ICRC Commentary Article 13, 4538: ‘The prohibition of acts of terrorism is based on Article 33 […] of the fourth Convention. The ICRC draft prohibited ‘acts of terrorism in the form of acts of violence committed against those persons’ (i.e., against protected persons). The formula which was finally adopted is simpler and more general and therefore extends the scope of the prohibition. In fact, the prohibition of acts of terrorism, with no further detail, covers not only acts directed against people, but also acts directed against installations which would cause victims as a side-effect. It should be mentioned that acts or threats of violence which are aimed at terrorizing the civilian population, constitute a special type of terrorism and are the object of a specific prohibition in Article 13 […] (‘Protection of the civilian population’), para 2.’
- 91.
See supra 10.0.
- 92.
Cf. Ambos, in Triffterer 2008, margin nos. 7 et seq.
- 93.
Ibid., margin nos. 14–15.
- 94.
For a general overview on individual criminal responsibility under Article 25 of the ICC Statute, see Eser, in Cassese et al. 2002, pp. 767 et seq.; see also Ambos, in Triffterer 2008, Article 25, pp. 743–770. For individual criminal responsibility in general see Sliedregt 2012, p. 61 et seq.; on the specific responsibility of senior leaders, see Olásolo 2009a, p. 47 et seq.
- 95.
See on commission by a principal: Schabas 2010, pp. 427–430.
- 96.
See on this mode of liability in general: Sliedregt 2012, pp. 7 et seq.
- 97.
- 98.
- 99.
See on this issue, Cassese 2005, pp. 111 et seq.
- 100.
Werle 2009, p. 173, margin no. 457.
- 101.
Cf. Olásolo 2009b, pp. 263–287.
- 102.
- 103.
Article 25(3)(b) ICC Statute.
- 104.
Article 25(3)(c) ICC Statute.
- 105.
For an extensive insight into the concept of command responsibility, see Mettraux 2009, 21–33; Meloni 2010, p. 77 et seq.; Nybondas 2010, pp. 11 et seq.
- 106.
Werle 2009, p. 190, margin no. 508.
- 107.
- 108.
- 109.
On this see Meloni 2010, p. 186.
- 110.
See Ambos, in Cassese et al. 2002, pp. 855–857.
- 111.
- 112.
- 113.
- 114.
- 115.
- 116.
Ibid., p. 971; see also Werle 2009, pp. 217–218.
- 117.
Cryer et al. 2014, pp. 146–179.
- 118.
Ibid., pp. 127–144; see also Schabas 2006.
- 119.
Ibid., pp. 47–68.
- 120.
As of 20 May 2015; please refer to the ICC website at http://www.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx for the most recent number of ratifications; accessed 21 May 2015.
- 121.
See Kaul, in Cassese et al. 2002, pp. 607–608.
- 122.
Ibid., p. 609.
- 123.
Cf. Condorelli & Villapando, in Cassese et al., pp. 630–639.
- 124.
See Kirsch & Robinson, in Cassese et al., pp. 619–626; see also Williams & Schabas, in Triffterer 2008a, Article 13, margin no. 15.
- 125.
For more details on this, refer to Kirsch & Robinson, in Cassese et al. 2002, pp. 657–666; see also Bergsmo & Pejic, in Triffterer, Article 15, margin nos. 8–12.
- 126.
Schabas 2011, pp. 168–176.
- 127.
UNHCR, ‘Pillay renews call to refer Syria to world criminal court’, http://www.ohchr.org/EN/NewsEvents/Pages/PillayToSecurityCouncil.aspx.
- 128.
Un News Centre, ‘Russia, China block Security Council referral of Syria to International Criminal Court’, http://www.un.org/apps/news/story.asp?NewsID=47860#.VVykzRqUeE4.
- 129.
- 130.
However, currently available information indicates that ISIS is a political and military organization primarily led by nationals of Iraq and Syria, both of which have not ratified the ICC Statute. See http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-stat-08-04-2015-1.aspx.
- 131.
See supra 10.0.
- 132.
See supra 10.2.2.
- 133.
On the possibility to use custom as a source before the ICC, see Pellet, in: Cassese et al., pp. 1071–1072.
- 134.
See supra 10.0.
- 135.
Paust 2010.
- 136.
See supra 10.0.
- 137.
The Guardian, ‘Call for special tribunal to investigate war crimes and mass atrocities in Syria’, http://www.theguardian.com/world/2015/mar/17/call-for-special-tribunal-to-investigate-war-crimes-and-mass-atrocities-in-syria.
- 138.
On the conditions on being ‘unwilling and unable’ according to Article 17 of the ICC Statute, please refer to Williams and Schabas, in Triffterer 2008b, Article 17, margin no. 24.
- 139.
On the prosecution of international crimes by national courts, see Cassese 2005, pp. 277–321; see also Zahar and Sluiter 2008, pp. 482–519; on the relationship between international and national jurisdictions, cf. Zahar and Sluiter 2008, pp. 447–480; with regard to the domestic implementation see Werle 2009, pp. 116–135.
- 140.
See the overview on the legal grounds of jurisdiction; Cassese 2005, pp. 277–292.
- 141.
Cassese 2005, pp. 281–282.
- 142.
Ibid., p. 277.
- 143.
Ibid., p. 282.
- 144.
Ibid., p. 284; for an extensive overview of the principle of universal jurisdiction, see Reydams 2003, p. 9 et seq.
- 145.
Cassese 2005, p. 285.
- 146.
See supra 10.2.2.
- 147.
See supra 10.2.2.
- 148.
See supra 10.3.
- 149.
See supra 10.4.3.
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Heinsch, R. (2016). Foreign Fighters and International Criminal 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_10
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Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-94-6265-098-5
Online ISBN: 978-94-6265-099-2
eBook Packages: Law and CriminologyLaw and Criminology (R0)
