States’ prevention and responses to the phenomenon of foreign fighters against the backdrop of international human rights obligations

Abstract

Preventing and responding to the phenomenon of foreign fighters involves a multitude of potential initiatives. By itself, Security Council Resolution 2178 on foreign fighters contains a wide range of recommendations and binding decisions, triggering the potential for engagement of a broad range of human rights in States’ prevention and responses to foreign fighters. This is further impacted upon by the absence in Resolution 2178 of a comprehensive, concise and human-rights compliant definition of terrorism. This chapter highlights that the issue of human rights compliance in countering foreign fighters does not involve new questions. Drawing directly from the past decade and a half of developments concerning human rights compliance when countering terrorism, the principle of complementarity and mutual reinforcement between security and human rights is seen as being reflected in the United Nations’ Global Counter-Terrorism Strategy and accompanying action, as well as within the Security Council’s Resolution on foreign fighters. The chapter shows that this is also a natural consequence of State’s legal obligations, and reflects the flexibility of international human rights law to accommodate security and public order objectives. It also illustrates that this position is not altered when States implement binding decisions of the Security Council. States will be held to account for implementing action where its acts or omissions involve violation of their human rights obligations, including where a State is left with no choice as to the means of implementation. The chapter asserts that States must therefore be rigorous in ensuring that their implementation of Security Council resolutions on foreign fighters comply in all aspects with their international human rights obligations.