Ensuring a Human Rights-Compliant Approach to the Challenge of Foreign Fighters

At a forum on returning foreign fighters last week in Qatar, I highlighted the necessity of addressing this thorny challenge through a human rights lens. I outlined the dangers of “magical thinking” in assuming that a military solution alone will solve the security, social and ideological challenges posed by returning foreign fighters, their wives/partners and their children.

In particular, I addressed the potentially negative consequences of the new regulatory regimes designed by the international community to contain the threat of foreign fighters in the past couple of years, specifically United Nations Security Council Resolutions 2170, 2178 and 2396, all adopted under Chapter VII of the U.N. Charter. I outlined five challenges that follow from these resolutions, some of which may make it more difficult to manage the ongoing potential threat posed by foreign fighters and their children. I have grave concerns that contemporary responses to foreign fighters, which have inadequately integrated human rights and humanitarian law into their regulatory scope, may in fact further inflame the “push and pull” factors that are significant to the mobilization of young men and women to join terrorist groups.

I also spoke about the significant danger of regulatory spillover from these U.N. Security Council resolutions into regular law enforcement. These resolutions were, in theory, designed to give states some extraordinary capacity to collect data, criminalize travel to and membership of terrorist organization, require the application of biometric technologies for a limited purpose, namely to address a particular and bounded threat — that of foreign fighters. I perceive a clear and present danger that the mandates included in these resolutions will be perceived as advantageous to regular law enforcement and will be used against a wide variety of individuals and groups whose relationship to terrorism may be tenuous at best.

The Contamination Challenge

As I pointed out to the U.N. General Assembly in my annual report presented in October, the Security Council’s legal regimes — complemented by regional regulatory schemes such as the 2017 E.U. Terrorism Directive, and new entities such as the Financial Action Task Force (FATF) and the Global Counter-Terrorism Forum (GCTF) — are extensive and far-reaching. I have serious concern that while such regulatory schemes have been expressly authorized on the basis of a compelling, specific and defined threat (the threat that foreign fighters pose to countries of return or secondary location), the regulatory language is insufficiently precise in some aspects, thus enabling states to extend the use of such measures to a wide range of persons/groups including those engaged in protected activities under international law. This migration pattern of exceptional law into ordinary law is one that we are deeply familiar with in the context of domestic counterterrorism and emergency powers. It’s clear that many of these crossovers have been associated with grievous and sustained human rights violations, concentrations of executive power, and a lack of transparency and accountability. For this reason, I’m highlighting the challenge of crossover and containment of the exceptional legal regimes regulating foreign fighters as one of the downstream and unintended consequences of the regulatory framework developed to contain this threat.

The Challenge of Unintended Consequences

I underscore the extent to which the response to the phenomenon of foreign fighters may be intricately linked to the long-term management of the threat itself, a point underscored by the recent U.N. Development Programme study of journeys to extremism in Africa. The most striking statistics among many in this study was that the tipping point to radicalization for almost 2/3 of the fighters surveyed was a state abuse of law or human rights. As the regulatory framework governing foreign fighters opens up the possibility of misapplication and use beyond its narrowly intended scope, there is serious need for rigorous oversight of the foreign fighters space to ensure that states do not abuse the legal framework and apply it to a host of dissenters, political challengers, and civil society activists all in the guise of combatting terrorism. That potential for abuse gives us all serious food for thought as to the interdependent relationship of “push and pull” factors with rule of law and human rights deficits.

The Challenge of Generic and Decorative International Law Invocation

As the relevant Security Council foreign fighter resolutions were passed in significant haste, and involved limited consultation, a number of human rights-related challenges emerge in this regulatory framework. The most recent Security Council resolution makes a number of welcome references to international law and human rights. While generic references to human rights and international law are a relatively new development in thematic Security Council Resolutions on terrorism, these are unmoored to any specific requirements of benchmarking or review. Moreover, if we take the resolutions at face value much of that invocation seems quite superfluous and does not have any concrete specificity or enforcement, unlike unambiguous obligations for data collection and criminal justice cooperation. Few resources are spent to ensure that Security Council resolutions and their transposition to domestic law is compliant with human rights and rule of law. This is a major limitation, one in need of active remedy. Some important human rights guidance has been developed to fill this lacunae, but these continue to function at the margins of state activity and are in pressing need of adoption, validation and use in practice.

The Challenge of Insufficient, Inadequate and Limited Data

While there is general political agreement on the scale of the threat posed by foreign fighters returning to their home countries, there is a glaring absence of data to quantify that threat. There is awareness that the returning fighter population is not a monolith. Policymakers understand that there are differences between persons who returned with significant disillusionment from their experiences, those who had leadership and training roles, children who accompanied adult family members, and the distinctions that follow from the geographies of conflict, age, gender, and group memberships. Linking granular levels of individual risk assessment with appropriate and calibrated legal response, as opposed to the sledge-hammer of singular approaches to all returnees is critical. Any failure to do this has distinct rule of law consequences, which raise deep concerns of legality, proportionality and discrimination and, to state the obvious, may be profoundly counterproductive to effective management of highly vulnerable or risky populations. There is a pressing need for robust qualitative studies that engage directly with these returning populations. While recognizing the challenges of undertaking such work, its absence will likely produce piecemeal policy solutions, and little or no insight into the mobilization dynamics, which are necessary to understand when undertaking meaningful prevention of terrorism. The meta data, indicating the numbers of dead, casualties, and returned to countries of origin, is now widely available, and it is, in a fundamental sense, best contextualized by granular studies of mobilization and military engagement by foreign fighters in situ.

The Challenge of Misuse of Foreign Fighter Regulation to ‘Do’ Other Work

Wide, ambiguous and distinctly nefarious definitions of terrorism are proliferating at the domestic level. My forthcoming report as Special Rapporteur to the Human Rights Council in March  2019, quantifies and amplifies the scale and scope of the problem. As Special Rapporteur, I have received a tsunami of alerts through the mandate’s communications function which enables individuals and groups asserting a human rights violation in the context of counter-terrorism to contact the mandate, testify to the ongoing targeting of civil society, bloggers, journalists, intellectuals and moderate religious leaders by states under the banner of countering “terrorism.” It again affirms the obvious that with a proliferation of these vague and highly problematic definitions at the domestic level, the layer of foreign fighter resolutions, which require and empower states to do more against undefined “terrorism,” the dangers of spill-over, abuse and dysfunctional use are manifest and should concern us all.

Where to from here? First, it is imperative that recently developed UN Guidance to states on human rights-compliant approaches to the phenomenon of foreign fighters be heeded. This means taking concrete and practical steps at the national level to human rights-‘proof’ the national implementing legislation that is mandated by the Security Council resolutions.

Second, the oversight of national practice must be robust and transparent when it comes to compliance with human rights. When states are going beyond the specific and defined uses for which these resolutions were intended (namely application to foreign fighters and not to dissenters, civil society activists, protesters, or those legitimately exercising their rights under other legal regimes including international humanitarian law) they must be called out. This is the rightful role of the Counter-Terrorism Committee, the Security Council, and the Counter-Terrorism Committee Executive Directorate (CTED).

Third, there is an urgent need for more data on returnees, which in some cases requires the return of such individuals to their countries of origin. The urgency of return is most especially evident in the case of children of foreign fighters, many of whom are languishing in detention sites and prisons abroad in abhorrent conditions. Finally, the scope of the Security Council resolutions concerning foreign fighters cautions all states to exercise more scrutiny on the move to super legislative mode by the Security Council in its thematic terrorism resolutions (here). States have good reason to ensure that criminal law regulation is not done by the fiat of the 15 members that make up the Council, but rather is subject to meaningful checks and balances by national institutions including courts. This may be the most compelling lesson going forward from these foreign fighter resolutions.

Image: U.N. Security Council meeting on threats to international peace and security caused by foreign terrorist fighters in November 2017. UN Photo/Eskinder Debebe

 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).