Francesca Capone

Foreign Fighters under International Law and Beyond

Introduction -- Foreign Fighters’ in the Syria and Iraq Conflict: Statistics and Characteristics of a Rapidly Growing Phenomenon -- Foreign Fighters’ Involvement in National and International Wars: A Historical Survey -- Foreign Fighters as a Challenge for International Relations Theory -- Foreign Fighters: Motivations for Travel to Foreign Conflicts -- The Emerging Role of Social Media in the Recruitment of Foreign Fighters Gabriel Weimann -- Analysing the Recruitment and Use of Foreign Men and Women in ISIL through a Gender Perspective -- The Military Impact of Foreign Fighters on the Battlefield: the Case of the ISIL -- The Status of Foreign Fighters under International Humanitarian Law Emanuele Sommario -- Foreign Fighters and International Criminal Law -- Child Soldiers: the Expanding Practice of Minors Recruited to Become Foreign Fighters -- Armed Opposition Groups’ (and Foreign Fighters’) Abidance by Human Rights Law: the Issue of Compliance in Syria and Iraq.

Child Soldiers: The Expanding Practice of Minors Recruited to Become Foreign Fighters

The phenomenon of conscripting, enlisting or using children to take part in hostilities, as combatants or in other capacities, is not new on the international agenda. For centuries children have been involved in military campaigns, e.g. as child ratings on warships or as drummer boys on the battlefields across Europe. However, in recent years this practice has reached its peak, becoming one of the darkest features of many armed conflicts. In early 2014 UNICEF estimated that the number of children associated with armed forces or groups amounts to 300,000 boys and girls under the age of 18, participating in more than 30 conflicts worldwide. The ongoing armed conflicts in the Middle East are not exempt from this phenomenon. An unknown number of children have joined parties fighting in Syria and Iraq and many of them fall within the category of foreign fighters. The presence of children in the foreign fighters’ ranks has also been ascertained by the UN Security Council in Resolution 2178, which has explicitly called on States to prevent radicalisation to terrorism, address the threat posed by ‘foreign terrorist fighters’, and prevent the recruitment of individuals, including children. The present contribution will seek to address the questions stemming from the unique features of the current events, including the effectiveness of the existing international framework in preventing and prohibiting the recruitment of children, the unprecedented challenges that the international community has to face in order to counter the present situation and the importance of social recovery and reintegration within the communities of origin. To this end the chapter pursues a threefold aim, analysing the current set of norms that governs children’s recruitment and use in hostilities, focusing on how such framework applies to the phenomenon of foreign fighters and discussing the possible routes to foster accountability, prevention and rehabilitation of children in the ranks of foreign fighters.

Nous Sommes Charlie: Discussing the EU Reaction to the Growing Risk of Terrorist Attacks

Abstract In the aftermath of the deadly attacks occurred in France at the beginning of 2015 the European Union has faced an unprecedented wave of terrorism which has led to the adoption of new measures set up to counter the increasing risk of further offences. Terrorism is not new on the EU agenda, in particular since 2001. Several EU Member States have been directly involved in the US “war on terror”, triggered by the 9/11 attacks. In the following years the tragic events occurred in Madrid and London have urged the EU to design a comprehensive counter-terrorism strategy, which is based on four pillars i. e. prevention, protection, pursuit and response. The terrorist attacks carried out in January 2015 have marked the beginning of a new era in the struggle against terrorism and have prompted the adoption of a new policy, based on enhancing citizens’ security, prevention and international cooperation, which added an additional layer to the EU strategy already in place. Despite the immediate response, a few months later Paris and the whole Europe have suffered from an even more dreadful attack, which led to question the effectiveness of the newly adopted approach. In light of the current developments, this contribution has a twofold purpose. In primis it investigates why the spreading of armed conflicts and extremist ideologies in the Middle East has such a strong impact on the increasing risk of terrorist acts in the EU. Secondly, this article provides the reader with an overview of the reaction envisaged and implemented by the EU in the aftermath of the attacks occurred in January 2015, discussing its main strengths and shortcomings, and it ultimately concludes that the EU framework failed to prevent the November massacres due to its inability to cope with the deepest causes of terrorism and address the factors that keep fuelling it.

Victims’ Right to Reparation and the Residual Application of Diplomatic and/or Functional Protection

It is traditionally considered that under the existing international legal framework the obligation to provide reparations is incumbent on any actor/subject of international law that is accountable for the damage, material and moral, resulting from the breach of an international obligation. This is a key corollary of the attribution of international responsibility for wrongful acts, and as such it pertains to both States and international organizations. After providing a short overview of how the right to reparation developed beyond the traditional inter-State paradigm, this chapter will address the issue of redress for victims, focusing on civilian personnel sent on missions or assignments outside their normal place of activity, as well as on international organizations’ breaches of their duty of care. Furthermore, this chapter will discuss the residual application of States’ diplomatic protection and international organizations’ functional protection, in cases where the injury suffered by the staff member engages the interests of the State of nationality, the international organization, or both.

‘Worse’ than Child Soldiers? A Critical Analysis of Foreign Children in the Ranks of ISIL

Even though many problems connected to child soldiering have been eventually explored and unpacked, it is undeniable that new issues keep surfacing in each context affected by this phenomenon. The current armed conflicts in Syria and Iraq appear to be shocking for several reasons, including the unprecedented presence of foreigners and the widespread recruitment and use of children by terrorist groups, in particular the Islamic State of Iraq and the Levant (ISIL). This article argues that whereas child soldiers affiliated with armed forces or groups are ‘traditionally’ seen as victims rather than perpetrators, foreign children in the ranks of terrorist groups like ISIL are first and foremost regarded as a threat to national and international security. This article will provide a critical overview of the most relevant aspects encompassing the existing legal framework, ISIL’s recruitment and use of foreign child soldiers, and the challenges connected to the design and implementation of meaningful reintegration processes.

An Overview of the DDR Process Established in the Aftermath of the Revised Peace Agreement between the Colombian Government and the FARC: Finally on the Right Track?

Abstract The revised peace agreement between the Colombian Government and the FARC, officially approved by the Congress on 30 November 2016, covers several crucial issues, including the destiny of the FARC rebels in the aftermath of the world’s longest civil war. The establishment of an effective DDR process is an essential step to ensure that FARCs members will meaningfully transition into civilian life and it represents one of the most controversial aspects amongst those addressed during the four years peace negotiations that led to the signature of the current deal. The present article, after providing an overview of the essential features of DDR programmes and the context-specific factors that can either facilitate or hamper their implementation, will first look at Colombia’s past attempts to reintegrate former FARC combatants and then it will discuss the DDR process outlined in the peace deal under implementation, arguing that, in comparison to the previous efforts and at least on paper, it satisfies many of the key requirements for success, in primis being part of a comprehensive transitional justice process.

COUNTERING “FOREIGN TERRORIST FIGHTERS”: A CRITICAL APPRAISAL OF THE FRAMEWORK ESTABLISHED BY THE UN SECURITY COUNCIL RESOLUTIONS

Terrorism constitutes one of the most serious threats to international peace and security. The newest challenge posed by this threat is represented by the phenomenon of “foreign terrorist fighters”. Current estimates place the number of foreigners who have joined the ongoing armed conflicts in the Middle East between 20,000 and 30,000. How many of these foreign fighters also fall within the definition of foreign terrorist fighters (i.e. those travelling abroad with a “terrorist” intent) provided by UN Security Council Resolution 2178 (2014) is very difficult to assess. In primis because the resolution refers to “terrorists”, “terrorist acts”, and “terrorist training” without actually defining “terrorism” and thus leaving to each Member State the task to determine the breadth and the contours of this concept. Secondly because the text lacks legal certainty with regard to many other crucial aspects, e.g., the relationship between counter-terrorism and international humanitarian law, the interpretation of the term “State of residence”, and the risk of abuse of refugee status. These shortcomings not only jeopardize the ability to implement a uniform approach, but they also increase the likelihood of fostering abusive responses. This article argues that Resolution 2178 has not been adopted in a legal vacuum, on the contrary it extensively builds on the anti-terrorism framework established by previous Security Council resolutions and thus it inherits and exacerbates many old and unresolved issues. Ultimately, the present article seeks to determine to what degree the new set of binding obligations placed upon Member States to thwart the phenomenon of foreign terrorist fighters is effective and it discusses the extent to which it could enhance or hinder counter-terrorism’s compliance with international human rights law, international humanitarian law and international refugee law.

Children in Colombia: Discussing the Current Transitional Justice Process Against the Backdrop of the CRC Key Principles

Colombia is widely reckoned as one of the most interesting case studies in the field of transitional justice. The five decades long civil war has resulted in a countless number of victims, disproportionately affecting the most vulnerable sectors of the population, including children. Over the past years the Colombian Government has strived to achieve a twofold aim, on the one hand it has passed laws and regulations to enhance the country’s compliance with human rights standards and on the other hand it has established measures, legal and non, to promote a comprehensive transitional justice process and achieve reconciliation, justice and reparations for the victims of the ongoing armed conflict. Both sets of actions have had an impact also on children. The national laws adopted to strengthen the country’s compliance with the tenets of the Convention on the Rights of the Child (CRC) and its Optional Protocols, as well as the legislative efforts developed within the transitional justice process, have contributed to build a unique framework that deserves to be duly analysed against the backdrop of two key principles, namely the best interests of the child and children’s right to participate in all the decisions and processes affecting them. The contribution will be divided in three main sections, the first one will provide an overview of the current situation of children in Colombia, the second part will analyse the key CRC principles and the degree to which they have been absorbed in the Colombian national laws; and the third part will critically discuss Colombian framework’s compliance with the international human rights standard embedded in the CRC and present some conclusive remarks.