Abstract
Preventing and responding to the phenomenon of foreign fighters involves a multitude of potential initiatives. By itself, Security Council Resolution 2178 on foreign fighters contains a wide range of recommendations and binding decisions, triggering the potential for engagement of a broad range of human rights in States’ prevention and responses to foreign fighters. This is further impacted upon by the absence in Resolution 2178 of a comprehensive, concise and human-rights compliant definition of terrorism. This chapter highlights that the issue of human rights compliance in countering foreign fighters does not involve new questions. Drawing directly from the past decade and a half of developments concerning human rights compliance when countering terrorism, the principle of complementarity and mutual reinforcement between security and human rights is seen as being reflected in the United Nations’ Global Counter-Terrorism Strategy and accompanying action, as well as within the Security Council’s Resolution on foreign fighters. The chapter shows that this is also a natural consequence of State’s legal obligations, and reflects the flexibility of international human rights law to accommodate security and public order objectives. It also illustrates that this position is not altered when States implement binding decisions of the Security Council. States will be held to account for implementing action where its acts or omissions involve violation of their human rights obligations, including where a State is left with no choice as to the means of implementation. The chapter asserts that States must therefore be rigorous in ensuring that their implementation of Security Council resolutions on foreign fighters comply in all aspects with their international human rights obligations.
The author is a Reader in International Human Rights Law at Sussex Law School.
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Notes
- 1.
- 2.
- 3.
See all chapters under Part IV of this book, ‘Tackling the phenomenon of foreign fighters at the national level’.
- 4.
Security Council Resolution 2178 (2014), preambular para 13.
- 5.
Security Council Resolution 2178 (2014), operative paras 2–11 and 13–14.
- 6.
Security Council Resolution 2178 (2014), operative paras 4–7, 10–12 and 15–19.
- 7.
Ambos 2014.
- 8.
Security Council Resolution 1566 (2004), operative para 3.
- 9.
Scheinin 2010, para 26.
- 10.
Scheinin 2010, Practice 7, which provides that terrorism means an action or attempted action where:
-
1.
“The action:
-
(a)
Constituted the intentional taking of hostages; or
-
(b)
Is intended to cause death or serious bodily injury to one or more members of the general population or segments of it; or
-
(c)
Involved lethal or serious physical violence against one or more members of the general population or segments of it;
and
-
(a)
-
2.
The action is done or attempted with the intention of:
-
(a)
Provoking a state of terror in the general public or a segment of it; or
-
(b)
Compelling a Government or international organization to do or abstain from doing something;
and
-
(a)
-
(3)
The action corresponds to:
-
(a)
The definition of a serious offence in national law, enacted for the purpose of complying with international conventions and protocols relating to terrorism or with resolutions of the Security Council relating to terrorism; or
-
(b)
All elements of a serious crime defined by national law.”
-
(a)
-
1.
- 11.
Security Council Resolution 2178 (2014), preambular paras 1 and 22.
- 12.
General Assembly Resolution 60/288 (2006), Annex.
- 13.
Annan 2006, para 118.
- 14.
Ibid.
- 15.
See, respectively, General Assembly Resolutions 62/272, 64/297, 66/282 and 69/127.
- 16.
General Assembly Resolution 60/288 (2006), Annex, Pillar IV.
- 17.
General Assembly Resolution 60/288 (2006), Annex, Pillar IV title.
- 18.
General Assembly Resolution 60/288 (2006), Annex, Pillar I, preambular para.
- 19.
See, for example, Security Council Resolution 2178 (2014), preambular para 13 and operative paras 4, 15, 16, 18 and 19.
- 20.
See, for example, Al Hussein 2014, paras 37–39.
- 21.
General Assembly Resolution 60/288 (2006), Annex, Pillar I, preambular para.
- 22.
Security Council Resolution 2178 (2014), preambular paras 5 and 7. See also preambular paras 19 and 22.
- 23.
Security Council Resolution 2178 (2014), preambular para 7.
- 24.
Ibid.
- 25.
Security Council Resolution 2178 (2014), para 5.
- 26.
Ibid.
- 27.
International Covenant on Civil and Political Rights, Article 6.
- 28.
In commenting on human rights in the fight against terrorism, former Judge of the European Court of Human Rights, Egbert Myjer, succinctly stated: “Just do what you have promised to do”: Myjer 2009, p. 1.
- 29.
Conte 2010, pp. 393–398.
- 30.
2005 World Summit Outcome, adopted under General Assembly Resolution 60/1 (2005), Annex, para 85, where the General Assembly concluded that: ‘…international cooperation to fight terrorism must be conducted in conformity with international law, including the Charter and relevant international conventions and protocols. States must ensure that any measures taken to combat terrorism comply with their obligations under international law, in particular human rights law, refugee law and international humanitarian law’.
- 31.
Al Hussein 2015.
- 32.
Almqvist 2005, p. 2.
- 33.
Office of the United Nations High Commissioner for Human Rights 2008, pp. 15–19.
- 34.
See, for example, Boyle 2004.
- 35.
Consider, for example, the derogation by the United Kingdom in 2001 from Article 5 of the ECHR, which was made in order to accommodate enactment of Part IV of the Anti-terrorism, Crime and Security Act 2001 and declared to be in response to a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism (see, for example, Bates 2005). Consider also the continuing derogation of Israel from provisions of the ICCPR, existing since 1948 (see, for example, Scheinin 2007).
- 36.
See Chap. 14 by de Guttry in this volume.
- 37.
See, for example: Sayadi and Vinck v. Belgium, Human Rights Committee Communication No 1472/2006, UN Doc CCPR/C/94/D/1472/2006 (2008), para 4.12; and Al-Jeddah v. United Kingdom (2011) ECHR 1092, para 60.
- 38.
Sayadi and Vinck v. Belgium, para 10.6.
- 39.
Sayadi and Vinck v. Belgium, Annex B, Individual opinion of Committee member Mr. Ivan Shearer (dissenting), un-numbered para 3.
- 40.
Sayadi and Vinck v. Belgium, Annex B, Individual opinion of Committee member Sir Nigel Rodley (concurring), un-numbered paras 4–5.
- 41.
Al-Jeddah v. United Kingdom (2011) ECHR 1092, para 102.
- 42.
Nada v. Switzerland (2012) ECHR 2022, para 176.
- 43.
Sayadi and Vinck v. Belgium, para 7.2.
- 44.
Al-Dulimi and Montana Management Inc. v. Switzerland (2013) ECHR 1173, para 113.
- 45.
Ibid, para 114.
- 46.
Ibid, paras 118–120.
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Conte, A. (2016). States’ Prevention and Responses to the Phenomenon of Foreign Fighters against the Backdrop of International Human Rights Obligations. 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_15
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