The Qualification of the Activities of (Returned) Foreign Fighters Under National Criminal Law

Abstract

National prosecutors and courts usually qualify the activities of foreign fighters (FFs)Foreign fighters (FFs) as terrorist offencesTerrorist offences. However, the groups FFsForeign fighters (FFs) join tend to have a “dual natureDual nature”: they usually qualify as both terrorist groupsTerrorist group under counter-terrorism (CT)Counter-terrorism (CT) instruments and non-state armed groups (NSAGs)Non-state armed groups (NSAGs) under international humanitarian law (IHL)International humanitarian law (IHL). Hence, the activities of (returned) FFsReturned foreign fighters are situated at the confines of CT instruments and IHLInternational humanitarian law (IHL), which complicates the qualification of their activities under national criminal law. These activities may qualify as serious violations of IHLSerious violations of IHL, namely war crimesWar crimes, but also as other international crimesInternational crimes, namely crimes against humanityCrimes against humanity or genocideGenocide. Furthermore, some of the activities committed by FFsForeign fighters (FFs) can also be qualified as “common” offences under domestic criminal lawDomestic criminal law. Ultimately, we conclude that national prosecutors and courts should consider all relevant legal frameworks when qualifying the activities of (returned) FFsReturned foreign fighters. FFsForeign fighters (FFs) should be prosecuted and punished for international crimesInternational crimes and common offencesCommon offences in addition to, or instead of, terrorist offencesTerrorist offences if necessary or appropriate.