The Legal Limbo of Counter-Terrorism Criminal Law and Armed Conflict Anti-Regime and Anti-IS (Foreign) Fighters Before European Courts

Abstract

The Syrian conflict has reached public prosecution offices and courts in numerous European states with full force. Criminal investigations and proceedings against so-called foreign fighters returning from Syria as well as against persons who arrived as refugees or migrants and were involved in the conflict as members of non-state armed groups have rapidly increased in recent years. Most of the fighters returning or arriving from Syria to Europe are members of the so-called Islamic State or comparable jihadist groups and are being prosecuted for counter-terrorism crimes. In this contribution, however, the focus will be on those groups for which classification as “terrorist organization” is less clear. This paper takes a closer look at the criminal investigations and proceedings that are being conducted in several European states against anti-regime and anti-IS (foreign) fighters. Do members of these groups also face prosecution under counter-terrorism criminal law after their return to or their entry into the country? Or does counter-terrorism criminal law differentiate between the groups involved in the Syrian conflict? Is this differentiation a legal or a political matter? Who is responsible for the decision? What criteria apply?