“Foreign Fighters” and EU implementation of the UNSC resolution 2178. Another case of “Legislate in haste, repent at leisure…” ? (1)

by Emilio DE CAPITANI

Foreword

Last week the European Parliament Civil liberties Committee (LIBE) debated for the first time how to legally frame the problem of “foreign fighters” operating in Syria and Iraq under the flag of the so called Islamic State and of Al Nusra or other insurgent movements at the EU level. The issue has been put on the LIBE agenda because the European Commission and the Council informed the EP of their intention to negotiate a protocol to the European Convention against terrorism within the framework of the Council of Europe, to implement the United Nations Security Council resolution 2178 on foreign “terrorist” fighters.

As happens very often when international, supranational and national law are intertwined, the issue is very complex. To make things even harder, the boundaries in international law between armed conflicts and international terrorism have been  progressively blurring since 9/11 and, since the entry into force of the Lisbon Treaty competences in criminal matters and terrorism, they are increasingly being dealt with at the EU level.

In the following pages I will try to highlight the main aspects of the issue of Foreign Fighters starting from its International law dimension by taking as basic references:
– the excellent briefing  “Foreign Fighters under International Law”of the Geneva Academy of International Humanitarian Law and Human Rights; and
– the very timely and focused remarks of the former United Nations Special Rapporteur  on human rights and counter-terrorism Martin Scheinin on UNSC Resolution 2178. See:
“Back to post-9/11 panic? Security Council resolution on foreign terrorist fighters”  and “A Comment on Security Council Res 2178 (Foreign Terrorist Fighters) as a “Form” of Global Governance”

In a second post, I will focus on the specific relation between the Council of Europe, the European Union and EU Member States on this issue.

1 Foreign fighters before 9/11

The phenomenon of “foreign” fighters taking part in an armed conflict, or in an insurgency movement, in a different country than their own is not new.  Examples in the last century have included the Spanish civil war in 1936  or the 1948 Arab-Israeli War, the war in Afghanistan following the 1989 Soviet invasion, the Bosnian conflicts in the 1990s, and the violence in Chechnya and Dagestan, in Iraq, Mali, Nigeria, Somalia, Syria, and Yemen, not to speak of the recent Russian-Ukrainian crisis.

1.1 Foreign fighters as “combatants” in an armed conflict

Until recent times, from an international law perspective, the legal regime to be applied to foreign fighters depended on the nature of the armed conflict in which they were taking part. In case of armed conflict between States (International Armed Conflict) the legal regime was set by the four 1949 Geneva Conventions (1) which recognise the legitimate use of force, the role of “combatant” as well as the status of “Prisoner of War” (2). In case of “non international” armed conflicts which arise within a State and which could be defined as a situation of armed violence between regular armed forces and one or more organized armed non-state groups, the legal regime applicable is the less stringent regime of Common Article 3 of the 1949 Geneva Conventions .

1.2 Terrorist acts during armed conflicts

It is worth recalling that while international law recognises that the use of force is inevitable during an armed conflict, it also prohibits acts which aim primarily to spread terror among civilian populations. These acts can be considered “war crimes” when they consist of ‘acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population’ (“actus reus”) where the perpetrator ‘wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence’. International Courts have therefore considered that the “mens rea” is a further element of the international criminal offence (i.e. the requisite intent), namely, the specific intent to spread terror.

The tricky point is that even if they could partially overlap when terrorist activities can be framed as “war crimes”, the legal frameworks at the international level on armed conflicts and against international terrorism have different scopes (3). The proof is that the use of force during an armed conflict (if it complies with International Humanitarian law) is legitimate and is not an act of terrorism (especially when fighting for self-determination). (4)

1.3 Preventing the movement of Foreign fighters

From a State perspective, the customary law principle of non-intervention requires states to abstain from intervening in the internal or external affairs of other states. The 1970 UN Declaration on Friendly Relations details this by stating that ‘no State shall organise, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State’.
It can thus be argued that States, regardless of any new international rules in this domain, already have the obligation to prevent the movement of foreign fighters. This explains why several measures have already been taken at national level in recent years to deter individuals who have become, or seek to become, foreign fighters. Among these measures, the deprivation of citizenship, the confiscation or suspension of passports and other administrative measures limit an individual’s freedom to leave his state. As they are rooted in national legislation, these measures had to be taken on the basis of the national criminal law framework and in compliance with national constitutional principles and fundamental rights. In many cases this national legal framework is also already sufficient to justify the prosecution of “foreign fighters” returning home for criminal acts committed abroad, as well as to prosecute potential foreign fighters for acts to prepare to commit such crimes. In 2014, several countries are deemed to have taken measures against would-be foreign fighters, including the UK, Australia, Belgium, France, Germany, Spain, and the USA.

1.4 Foreign fighters as international “terrorists”?

Last but not least, foreign fighters who join or attempt to join an armed group that has been officially listed as a terrorist organization may be investigated and prosecuted on the basis of  international terrorism related legislation. However,  it is worth recalling that prior to 9/11, terrorism was mostly considered a phenomenon to be addressed at the national level.
Even when it took an international dimension, it was impossible for the UN General Assembly to agree on a Comprehensive Convention on International Terrorism. Instead, a series of international legal instruments deal with specific acts of terrorism, such as the 1970  Hague Convention for the Suppression of the Unlawful Seizure of Aircraft,  a 1979 treaty forbidding the taking of hostages,  a convention in 1997 to bar terrorist bombings and other Conventions dealing  with the financing of terrorist acts or organizations (1999) or with nuclear terrorism (2005). It is noteworthy that the latter cover contribution to the defined offences ‘by a group acting with a common purpose’, but only prosecute specific acts. These UN Conventions contain compulsory universal jurisdiction clauses (aut dedere aut judicare) and require states to prosecute or extradite alleged offenders found within their territory by creating arrangements for judicial cooperation and mutual legal assistance. Therefore, they do not criminalize mere membership of a terrorist group or the fact of receiving terrorist training.

2. The leading role of the UNSC in the “war on terror” after 9/11.

2.1 How, through Resolution 1267,  the SC is establishing a quasi-judicial role for itself…

The UN approach towards international terrorism suddenly changed at the end of the 1990s, from international treaties outlawing specific acts of terrorism, to a broader prevention policy progressively led by the Security Council (UNSC) adopting binding resolutions on the basis of Chapter VII of the UN Charter (‘Action with respect to threats to the peace, breaches of the peace, and acts of aggression’).

The first example was the creation, with UNSC resolution 1267(1999),(subsequently updated by UNSC resolutions 1333 (2000), 1390(2002)…1989(2011))  on a strong sanction regime against the Talibans in Afghanistan.

As Martin Scheinin, the first United Nations Special Rapporteur  on human rights and counter-terrorism reminds us, the initial SCR 1267 mechanism of “smart” sanctions which aimed to freeze the assets of specific individuals has been progressively ”…converted, mainly through SCR 1390, into a permanent regime of permanent sanctions against individuals and entities, without geographical or temporal limits and providing for sanctions that for their severity were analogous to criminal punishment.” By so doing, according to Martin Scheinin, “the UNSC  was acting ultra vires, going beyond its powers as provided by the UN Charter”. 

As a matter of fact, “When the UN Charter was adopted in 1945, a careful balance was struck between the powers of various UN organs, and in particular between the General Assembly and the Security Council.  While the General Assembly represents the development of international law, adoption of new legally binding treaties, traditional modes of decision-making in international organizations and therefore respect for the sovereign equality of states, the Security Council is in charge of addressing threats to international peace and security, through political action by a small number of states including five major victors of World War Two and, if necessary, supranational enforcement. Judicial powers were vested with the International Court of Justice with authority to resolve disputes between states in contentious cases.”

Since UNSC resolutions are intended to change a specific situation, they should be focused and temporary. Hence, it can be argued that resolutions with general quasi-legislative scope do not fit these characteristics and risk curtailing the General Assembly’s responsibilities. (5) Therefore, it is only in the General Assembly that all the UN Member States (and not only the fifteen meeting in the UNSC) acting as sovereign parties may bind themselves by explicitly expressing their ‘consent to be bound’ by measures of general scope.

…and on fundamental rights and criminal law..

Moreover, UNSC regimes such as the one built on Resolution 1267 should also be consistent with fundamental rights as foreseen by Art. 24(2) of the UN Charter which provides that in discharging its duties “the Security Council shall act in accordance with the Purposes and Principles of the United Nations” which include  “achieving international cooperation in promoting and encouraging respect for human rights and fundamental freedoms (see Art. 1.3 and  Art. 55c).  Failing to do so, the risk of challenges by national or supranational Courts is no longer merely theoretical.
Already in 2011, the Strasbourg Judges  in the Al-Jedda case referred to a possible conflict with art.103 of the UN Charter, stating the primacy of the UN Charter and other Treaties which considered that the protection of  Fundamental Rights should prevail in any case (6).
More recently, European Judges in both Strasbourg and Luxembourg dealing with cases of people listed under the 1267 Resolution considered that regime as inadequate.
The first of these was the Strasbourg Court (ECtHR), which in its September 2012 decision in Nada v.Switzerland, by addressing the legality of measures implementing targeted sanctions stemming from the UN Security Council, found a violation of the rights enshrined in the European Convention on Human Rights (ECHR). (7)
One year later, it was the turn of the Court of Justice of the European Union (CJEU) which, in  its decision on the Kadi II appeal, while acknowledging that it is ‘indispensable to ensure a fair balance between the maintenance of international peace and security and the protection of fundamental rights and freedoms, those being shared values of the UN and the EU’ (para 130), considered that ‘despite the improvements added’ by Resolutions 1904 and 1989, the procedures at UN level, including the Office of the Ombudsperson, still do not provide the guarantees of ‘effective judicial protection’ (para 133)(8). The Luxembourg Court has gone even further by declaring that “none of the allegations presented against Mr Kadi in the summary provided by the Sanctions Committee are such as to justify the adoption, at European Union level, of restrictive measures against him, either because the statement of reasons is insufficient, or because information or evidence which might substantiate the reason concerned, in the face of detailed rebuttals submitted by the party concerned, is lacking.”(para 163)

2.2 Legislating by stealth. How, through resolution 1373, the UNSC is developing quasi-“legislative” powers..

If the 1267 regime can be considered the tool through which the UNSC has developed a quasi-judicial activity at UN level,  UNSC resolution 1373  introduced a process by which, instead of going through the long and sometimes inconclusive procedure of treaty-drafting,  the Security Council is progressively developing a “quasi-legislative” role by mandating UN Member States that those financing, planning, preparing or perpetrating terrorist acts should be “brought to justice.” According to Scheinin, in adopting this structure, the international community appears to have moved even further down a path that diverges from the treaty-based global counterterrorism regime that was prevalent before 9/11…. As was recently argued also by Jan Everson of Leiden University “Is this the creation of international Criminal Law in domestic fora, not by custom or treaty but by an organ of the UN?  What legislation might be mandated next?  Might not something along the lines of the anti-commandeering doctrine in US constitutional law apply?”

2.3 UNSCR Resolutions 2170 and 2178 on Foreign terrorist fighters

Notwithstanding all these concerns, the UNSC has decided  to tackle the problem of foreign “terrorist” fighters participating in the activities of the so-called Islamic State in Iraq and Syria with the same type of measures in 2014.
For the first time, what triggered the UNSC’s reaction was not just the foreign fighters’ activity in the armed conflict, but also the  terrorist risk they pose when returning home.
Although, apparently, only one in nine foreign fighters eventually become involved in terrorism-related activities, their number has increased the risk of terrorist attacks in their home countries. Against this background, several high-level officials from Western states and the EU anti-terrorist Coordinator meeting since 2011 in the Global Counterterrorism forum have elaborated a specific strategy  which has inspired UNSC resolutions 2170 and 2178 in 2014. It is worth noting that, for the first time, both resolutions use the term foreign “terrorist” fighters, which calls into question two different legal frameworks which govern armed conflicts and terrorism respectively (as highlighted above) at the same time.

The first Resolution 2170 (upgraded in February 2015 by UNSC 2199)  is mainly focused on cutting the illicit financial resources of the so called Islamic State (ISIL) (oil smuggling, looting of antiquities, kidnapping for ransom and other unlawful activities), but it also criticises the  violations of  international humanitarian law enacted through atrocious terrorist activities perpetrated on the ground. It condemns the recruitment of foreign terrorist fighters (p.7). It also requires all ‘foreign terrorist fighters’ to withdraw and UN Member States to take national measures to suppress the flow of ‘foreign terrorist fighters’ and bring them to justice. It also stresses “the obligation of Member States to prevent the movement of terrorists or  terrorist groups, in accordance with applicable international law, by, inter alia,  effective border controls, and, in this context, to exchange information  expeditiously, improve cooperation among competent authorities to prevent the  movement of terrorists and terrorist groups to and from their territories, the supply  of weapons for terrorists and financing that would support terrorists”.

However, it is the second UNSC Resolution 2178 which mainly focuses on terrorism and on ‘foreign terrorist fighters’, who are defined 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 terrorist training, including in connection with armed conflict.”
As rightly highlighted by the Geneva Study taken as the background for this post, the reference to‘including in connection with an armed conflict’ plainly calls acts governed by IHL ‘terrorist acts’, without confining the term to acts prohibited by IHL (such as attacks against civilians or execution of persons ‘hors de combat’). In addition, it asserts that joining an entity that is both party to an armed conflict and designated as a terrorist group may amount to ‘receiving terrorist training’,  notwithstanding the fact that IHL rules may apply. The resolution significantly blurs the lines between terrorism and armed conflicts, not just rhetorically, but by creating legal consequences for ‘foreign terrorist fighters’ who intend to travel abroad. Without defining terrorism, but specifically including acts associated with an armed conflict, the resolution’s intended effect is to criminalize travel, or attempted travel, by foreign fighters to join groups condemned as terrorist groups. At the same time, the obligations it creates are not limited to fighters belonging to such groups.
Although they are generally sympathetic to the aim of the resolution, legal scholars have already emphasized that Resolution 2178 carries a significant risk of abuse. And this risk is not lowered by the almost rhetorical call for national legislation to criminalize these activities by complying at the same time  with States’ obligations under international human rights law (HRL), international refugee law, and International Humanitarian Law (IHL) and respecting the principle of non-retroactivity of criminal law.

According to Martin Scheninin, the main legal weaknesses of UNSC Resolution 2178 are the following:

The general reference in the preamble’s paragraph 1 (PP1), to “terrorism in all forms and manifestations” -not just international terrorism or specific forms of it-, imposes far-reaching new legal obligations upon all Member States without any effort to define or limit the categories of persons who may be identified as “terrorists” by an individual state. This approach carries a huge risk of abuse, as various states apply notoriously wide, vague or abusive definitions of terrorism, often with a clear political or oppressive motivation.
However, the most alarming provision of  Resolution 2178 is its operative paragraph 6 (OP6), where it requires that “..all Member States shall 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 decides 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:
a)  their nationals 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;
b)  the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to finance the travel of 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; and,
c)  the wilful organization, or other facilitation, including acts of recruitment, by their nationals or in their territories, of the travel of 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”

According to Martin Scheinin:
“This provision, even if difficult to enforce by the Security Council itself, and therefore representing a panic reaction that is mainly symbolic at UN level, will provide a handy tool for oppressive regimes that choose to stigmatize as “terrorism” whatever they do not like – for instance political opposition, trade unions, religious movements, minority or indigenous groups, etc. Let us assume that a country applies a definition of terrorism that includes organized campaigns of indigenous groups toward self-determination by non-violent means. Criminalizing the provision of training to empower these groups, including in the field of human rights, would then be legitimized by OP6. The repressive regime would refer to its obligations under the UN Charter to justify a crackdown upon travel, training and funding of organizations and movements said to constitute a threat to the oppressive regime itself – even when totally nonviolent. The situation of the Uighurs in China, or the harassment experienced in recent days by leaders of Russian indigenous communities trying to travel to New York for the World Conference on indigenous peoples, demonstrate that the above scenario is totally realistic.
The draft resolution has other problems as well, including:
-failure to mention human rights in PP5;
– repeating the wrongful implication in PP19 that abuse of refugee status would constitute a real terrorist threat;
– imposition of an obligation to exchange passenger name records in OP9, without providing proper safeguards; and
– failure to maintain and further develop the idea first adopted in 2008 in SCR 1822 that the UN itself must comply with human rights when combating terrorism.
What makes the new resolution into a serious backlash adopted in panic is the combination of OP1 and PP6.
The resolution must be fixed by:
– limiting the identified threat to peace and security to international terrorism or specific forms of it;
– carefully considering in each paragraph whether the measures could be restricted in scope, so that they apply only in respect of  individuals and entities associated with Al-Qaida; and
– restricting the scope of abusive application by individual states by including a provision defining the constitutive elements of international terrorism that legitimately are subject to UN action.
The last-mentioned fix could be made by repeating OP3 of SCR 1566 adopted in 2004, as an important step in mitigating the consequences of the post-9/11 panic. Failure to include such a clause is the clearest demonstration that we are now confronted with a backlash pushed through in a panic. 
While SCR 1566 may not be a perfect definition of terrorism, it nevertheless is the best statement by the Security Council on the matter and is capable of curtailing abuse by demonstrating that the Security Council can only oblige states to combat such forms of international terrorism that, inter alia, entail deadly or otherwise serious physical violence against human beings and that have been included in international conventions and protocols on specific forms of terrorism. In sum, according to OP3 of SCR 1566 the three cumulative conditions of what constitutes international terrorism are:
“[1] criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, 
[2] with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, 
[3] which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism.”

Continue…

Further reading :

Globalisation Criminal Law and Criminal Justice. Theoretical Comparative and Transnational Perspectives. Edited By Valsamis Mitsilegas, Peter Alldridge and Leonidas Cheliotis
ICCT Commentaries: The New Security Council Resolution 2178 on Foreign Terrorist Fighters: A Missed Opportunity for a Holistic Approach
Lisa Ginsborg, The New Face of the Security Council since 9/11: Global Counter-Terrorism, Human Rights and International Law, PhD thesis in law approved at the European University Institute in June 2014.

NOTES