The phenomenon of foreign fighters:

A new challenge for the world between effective protection and legal safeguards

Federica Maiorana

Abstract

Foreign fighters (FFs) play an important role in conflicts by voluntarily taking part in warfare. This phenomenon is by far not a new one, but pragmatic legal approaches that deal with them instead of resorting to fruitless re-interpretation are few and far inbetween. Definite statements on the phenomenon are complicated by its multifaceted nature and the scarcity of reliable data which makes it difficult to classify it into a general legal category

This paper provides an analysis of a number of hitherto unresolved legal issues to do with foreign fighters in the context of the existing legal framework and literature.

First we will discuss the lack of definition of the FF phenomenon, as no definitions seem to have gained widespread consensus. We analyze in particular attempts by the ICRC and the UN Security Council Resolution 2178, reflecting on the difficulty of defining the phenomenon, and discuss what reasons there may be to avoid doing so.

Second, we discuss the importance of status attribution under International Humanitarian Law (IHL), paying particular attention to the status of civilians taking direct part in hostilities, and how this status interacts with members of non-state armed groups. Reflecting on the unspoken assumptions in referring to them as 'fighters', we discuss if they are legally different from both combatant and civilian. Finally, we reflect on the difficulty of attributing a status to FFs without compromising a cornerstone of IHL: the principle of distinction and discuss the special category of Foreign Terrorist Fighters (FTFs).

Third, we will target rights and responsibilities of third parties to a conflict. We focus on two open issues: whether states of origin and transit have an obligation under International Law to prevent travel to (and joining of) a conflict (taking into account potential clashes between national regulations and human rights regulations) and whether such states can exercise the right to self defence to deal with any threats FFs might pose to their national security.