Naslov
Legal Regulation of the Phenomenon of Foreign Terrorist Fighters in the UN Security Council Resolutions

Autori
Perišić, Petra

Vrsta, podvrsta i kategorija rada
Sažeci sa skupova, sažetak, ostalo

Izvornik
Legal Tradition and New Legal Challenges / Drakić, Gordana ; Jovanov, Ilija ; Arsenijević, Danijela - Novi Sad, 2021, 53-55

Skup
3rd International Scientific Conference Legal Tradition and New Legal Challenges

Mjesto i datum
Novi Sad, Srbija, 29.09.2021. - 30.09.2021

Vrsta sudjelovanja
Predavanje

Vrsta recenzije
Recenziran

Ključne riječi
foreign fighters, foreign terrorist fighters, terrorism, Security Council

Sažetak
Foreign fighters, that is, individuals who travel to a foreign country in order to join an armed conflict there, have existed throughout history. International law was neutral to this phenomenon, neither forbidding, nor allowing it. In the last decade, however, foreign fighting started being observed almost exclusively within the context of terrorism. This is due to the fact that in the 2010s a great number of individuals travelled to Syria and Iraq in order to support ISIS or other armed groups. As a response to this, the UN Security Council adopted several resolutions referring to “foreign terrorist fighters” and formulating legal response to fight them. The most significant Resolution in this regard is the Resolution 2178 from 2014, which imposes an obligation on the UN member states to adapt their legislation so to treat some forms of foreign fighting as terrorism. The Resolution specifically requires that member states adapt their laws in order to prosecute and penalize their nationals who travel or attempt to travel to a foreign state in order to perpetrate, plan or prepare, or participate in, terrorist acts or to provide or receive terrorist training, including in connection with armed conflict. In addition, the Resolution imposes an obligation on individuals, demanding that all foreign terrorist fighters disarm and cease all terrorist acts and participation in armed conflict. The Resolution 2178 was controversial in several aspects. First, unlike other Security Council resolutions, which normally address UN member states, this Resolution addresses not only states but individuals as well. The question then arose of whether the Resolution created international individual obligations. Second, the Security Council was criticized for acting ultra vires by exercising legislative powers in the Resolution. It has been maintained that legislating by the Security Council is contrary to the division of powers between the Council and the General Assembly and that it results in neglecting one of the basic principles of international law – the one providing that states are bound only by those rules to which they consent. Thirdly, the Resolution has been criticized for imposing an obligation to criminalize certain terrorist acts without defining what terrorism is. Criminalization of terrorist acts in the absence of the definition of terrorism may lead to abuse, in sense that states, in particular those with oppressive regimes, may characterize as terrorism any act that they find undesirable. In the years following the adoption of the Resolution 2178, the Security Council adopted several other resolutions dealing with foreign terrorist fighters. However, it was not until 2017 and the collapse of ISIS that the more significant resolutions addressing the issue were adopted. The return of foreign terrorist fighters to their states of origin inspired the adoption of the resolutions 2368 and 2396, which dealt with the issue of returnees and relocators. These resolutions put an emphasis on the inter-state cooperation and information sharing, as well as on undertaking different measures such as asset freeze, arms embargo and travel bans, developing databases of known and suspect terrorists and others. All of the mentioned resolutions have created a legal framework for responding to the phenomenon of foreign terrorist fighters. This has resulted in a kind of “layering” of foreign fighters: on the one side there are foreign terrorist fighters, and on the other side there are all the other foreign fighters. International law remains neutral to the latter, but is no longer neutral to the former. What are the reasons behind differentiating legal response towards foreign terrorist fighters from the one towards other foreign fighters? The first reason is, no doubt, the fight against terrorism, which is nowadays more intense than it used to be in the past. And second, foreign fighting takes place in states other than the home state and foreign fighters are a threat to those states in which fighting takes place. On the other hand, foreign terrorist fighters often return to their home states, usually more radicalized and more experienced than they were upon their departure. It is, therefore, a fear of those returnees that inspired the adoption of the relevant Security Council Resolutions. UN member states are currently facing various challenges in implementing the said Resolutions. Some of them lack technical ability to implement required measures, while some of them lack political will. There is also, quite expectedly, an old problem of reconciling counter-terrorism measures with the protection of human rights

Izvorni jezik
Engleski

Znanstvena područja
Pravo

POVEZANOST RADA