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Published online by Cambridge University Press: 30 July 2021
The return of foreign fighters and their families to the European Union has mostly been considered a security threat by member States, which consequently adopt repressive measures aimed at providing an immediate, short-term response to this perceived threat. In addition to this strong-arm approach, reintegration strategies have also been used to prevent returnees from falling back into terrorism and to break down barriers of hostility between citizens in the long term. Amidst these different strategies, this paper seeks to identify which methods are most desirable for handling returnees.
Both authors contributed equally to the Introduction and Conclusion, as well as the section entitled “The Case of Repatriation”. The section “The EU Case of Returnees: A Counterterrorism Perspective on Foreign Fighters” is attributed to Carlotta Rigotti, while the section “The EU Member States’ Response to Foreign Fighters and Returnees” is attributed to Júlia Zomignani Barboza, with the exception of the subsection on “Exit Interventions”.
1 EU Counterterrorism Coordinator, in close consultation with the services of the European Commission and the EEAS, Foreign Fighters and Returnees from a Counter-Terrorism Perspective, in Particular with Regard to Syria: Stocktaking, EU Doc. 16768/13, 2013.
2 European Council, Special Meeting of the European Council: Conclusions, EUCO 163/14, 30 August 2014, p. 6.
3 Gilles de Kerchove and Christiane Höhn, The Regional Answers and Governance Structure for Dealing with Foreign Fighters: The Case of the EU”, in Andrea De Guttry, Francesca Capone and Christophe Paulussen (eds), Foreign Fighters under International Law and Beyond, Springer, Berlin, 2016, p. 304.
4 Wim Wensink et al., The European Union's Policies on Counter-Terrorism: Relevance, Coherence and Effectiveness, European Parliament, Directorate-General for Internal Policies, 2017, p. 35, available at: www.europarl.europa.eu/RegData/etudes/STUD/2017/583124/IPOL_STU(2017)583124_EN.pdf (all internet references were accessed in July 2021).
5 European Council, “Informal Meeting of the Heads of State or Government Brussels, 12 February 2015 – Statement by the Members of the European Council”, 12 February 2015, available at: www.consilium.europa.eu/en/press/press-releases/2015/02/12/european-council-statement-fight-against-terrorism/.
6 Amandine Scherrer (ed.), The Return of Foreign Fighters to EU Soil: Ex-Post Evaluation, European Parliament Research Service, May 2018, p. 58, available at: www.europarl.europa.eu/RegData/etudes/STUD/2018/621811/EPRS_STU(2018)621811_EN.pdf.
7 For example, in a report of the Dutch National Coordinator for Security and Counterterrorism (Nationaal Coördinator Terrorismebestrijding en Veiligheid, NCTV) and General Intelligence and Security Service (Algemene Inlichtingen- en Veiligheidsdienst, AIVD), the conclusion stated that “[i]t should be clearly kept in mind that minors are chiefly victims of ISIS, without ignoring the potential risks for society”. NCTV and AIVD, The Children of ISIS: The Indoctrination of Minors in ISIS-Held Territory, The Hague, 2017, p. 18.
8 See, for instance, Andrew Ashworth, Lucia Zedner and Patrick Tomlin, Prevention and the Limits of Criminal Law, Oxford University Press, Oxford, 2013.
9 Bakker, Edwin, “EU Counter-Radicalisation Policies: A Comprehensive and Consistent Approach?”, Intelligence and National Security, vol. 20, no. 2, 2015, pp. 298–302Google Scholar.
10 See, for instance, European Commission, “Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee and the Committee of the Regions Supporting the Prevention of Radicalisation Leading to Violent Extremism”, COM(2016)379 final, 2016.
11 European Council, above note 5.
12 G. de Kerchove and C. Höhn, above note 3, pp. 325–326.
13 Monar, Jörg, “EU Internal Security Governance: The Case of Counter-Terrorism”, European Security, vol. 23, no. 2, 2014, p. 195CrossRefGoogle Scholar.
14 See, inter alia, Christian Kaunert and Sarah Léonard, “The Collective Securitisation of Terrorism in the European Union”, Western European Politics, Vol. 42, No. 2, 2019; Javier Argomaniz, “Post-9/11 Institutionalisation of European Union Counter-Terrorism: Emergence, Acceleration and Inertia”, European Security, Vol. 18, No. 2, 2009.
15 A. Scherrer (ed.), above note 6, p. 31.
16 Ibid.
17 Ibid., pp. 33–38.
18 Reed, Alastair and Pohl, Johanna, “Disentangling the EU Foreign Fighter Threat: The Case for a Comprehensive Approach”, RUSI Newsbrief, vol. 37, no. 1, 2017, pp. 1–2Google Scholar.
19 AIVD, Focus on Returnees, The Hague, 2017.
20 NCTV, Terrorist Threat Assessment for the Netherlands 53: October 2020, The Hague, 2020.
21 A. Reed and J. Pohl, above note 18, p. 3.
22 United Nations (UN) Office on Drugs and Crime, Handbook on Children Recruited and Exploited by Terrorist and Violent Extremist Groups: The Role of the Justice System, Vienna, 2017, p. 106.
23 Tanya Mehra and Christophe Paulussen, “The Repatriation of Foreign Fighters and Their Families: Options, Obligations, Morality and Long-Term Thinking”, International Centre for Counter-Terrorism (ICCT), 2019, available at: https://icct.nl/publication/the-repatriation-of-foreign-fighters-and-their-families-options-obligations-morality-and-long-term-thinking/.
24 Matteo Pugliese, “France and Foreign Fighters: The Controversial Outsourcing of Prosecution”, Italian Institute for International Political Studies, 2020, available at: www.ispionline.it/it/pubblicazione/france-and-foreign-fighters-controversial-outsourcing-prosecution-24666.
25 Tanya Mehra, “Bringing (Foreign) Terrorist Fighters to Justice in a Post-ISIS Landscape. Part I: Prosecution by Iraqi and Syrian Courts”, ICCT, 2017, available at: https://icct.nl/publication/bringing-foreign-terrorist-fighters-to-justice-in-a-post-isis-landscape-part-i-prosecution-by-iraqi-and-syrian-courts/; Anthony Dworkin, Beyond Good and Evil: Why Europe Should Bring ISIS Foreign Fighters Home, European Council on Foreign Relations Policy Brief, 2019, available at: www.ecfr.eu/publications/summary/beyond_good_and_evil_why_europe_should_bring_isis_foreign_fighters_home.
26 Briefly, Chapter VII of the UN Charter provides the framework within which the Security Council may identify threats to the peace, breaches of the peace and acts of aggression, and therefore take military and non-military actions (such as establishing international tribunals) aimed at peace and security restoration. For further reading, see UN Security Council, “Actions with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”, available at: www.un.org/securitycouncil/content/repertoire/actions.
27 Anthony Dworkin, “A Tribunal for ISIS Fighters?”, European Council on Foreign Relations, 31 May 2019, available at: www.ecfr.eu/article/commentary_a_tribunal_for_isis_fighters.
28 T. Mehra and C. Paulussen, above note 23, p. 2.
29 This outcome, after all, already occurred when the Security Council sought to refer the Syrian case to the International Criminal Court, which has jurisdiction to prosecute individuals for international crimes, including war crimes and crimes against humanity. With regard to the Russia and Chinese veto, see Ian Black, “Russia and China Veto UN Move to Refer Syria to International Criminal Court”, The Guardian, 22 May 2014, available at: www.theguardian.com/world/2014/may/22/russia-china-veto-un-draft-resolution-refer-syria-international-criminal-court.
30 UNSC Res. 2379 (2017), UN Doc. S/RES/2379 (2017), 21 September 2017.
31 Section 33 of the Austrian Citizenship Act (1985) provides for the deprivation of citizenship whenever the individual has voluntarily joined an armed group as partaking in hostilities and such deprivation would not make her stateless, while Article 14(4) of the Dutch Nationality Act (1985) gives the minister of justice discretionary power to strip nationality from Dutch citizens over 16 years of age who are abroad and, on grounds of their conduct, are apparently part of an organization listed as partaking in national or international armed conflict. Article 23(2) of the Code of Belgian Nationality (1984) allows for the deprivation of citizenship on the condition that the Belgian citizen is convicted for any terrorist offence and sentenced to more than five years of imprisonment. It is nonetheless the case that the deprivation of Belgian citizenship cannot be requested for individuals who hold their Belgian citizenship from one of their parents or have become a Belgian citizen at birth on grounds of the double ius soli principle.
While the UK is no longer a member State of the EU, Section 40 of the British Nationality Act (1981) gives the home secretary the power to deprive a person of British citizenship whenever it would be conducive to the public good, even leading to statelessness for naturalized citizens who have engaged in behaviours seriously prejudicial to the UK's vital interests. Furthermore, it is important to highlight that the British case law has also considered the deprivation of citizenship to be in compliance with the prohibition of statelessness pursuant to Article 8 of the 1961 UN Convention on the Reduction of Statelessness, where the individual is believed to be able to obtain another nationality. See Maarten P. Bolhuis and Joris van Wijk, “Citizenship Deprivation as a Counterterrorism Measure in Europe: Possible Follow-Up Scenarios, Human Rights Infringements and the Effect on Counterterrorism”, European Journal of Migration and Law, Vol. 22, No. 3, 2020, pp. 347–349. The same article also provides interesting data concerning the number of citizenship deprivations for terrorism-related acts in Belgium, France, the Netherlands, and the UK (p. 351).
32 Laura Van Waas, “Foreign Fighters and the Deprivation of Nationality: National Practices and International Law Implications”, in A. De Guttry, F. Capone and C. Paulussen (eds), above note 3, p. 475.
33 See, for instance, Article 3 of Legge 5 Febbraio 1992 No. 91 (Italian Law on Citizenship), including withdrawal of nationality from people who join a foreign army or render services to a foreign or enemy State.
34 Human Rights Council, Human Rights and Arbitrary Deprivation of Nationality: Report of the Secretary-General, Un Doc. A/HRC/25/28, 19 December 2013. The same legal reasoning can be applied whenever the deprivation of nationality is recognized as being in violation of freedom of movement.
35 L. Van Waas, above note 32, p. 477.
36 Ibid.
37 Elena Pokalova, Returning Islamist Foreign Fighters: Threats and Challenges to the West, Palgrave MacMillan, London, 2020, pp. 59–77.
38 Ibid., pp. 111–114.
39 This human rights dimension is particularly evident in the case law of the European Court of Human Rights (ECtHR). More recently see EctHR, El Aroud v. Belgium, Appl. No. 25491/18, 5 November 2018; ECtHR, Soughir v. Belgium, Appl. No. 27629/18, 5 November 2018; ECtHR, Ghoumid and Others v. France, Appl. Nos 52273/16, 52285/16, 52290/16, 52294/16, 52302/16, 23 May 2017; ECtHR, Adam Johansen v. Denmark, Appl. No. 27801/19, 11 November 2019.
40 L. Van Waas, above note 32, pp. 482–483.
41 Sandra Krähenmann, “The Obligations under International Law of the Foreign Fighter's State of Nationality or Habitual Residence, State of Transit and State of Destination’, in A. De Guttry, F. Capone and C. Paulussen (eds), above note 3, p. 250.
42 See, for example, Organization for Security and Co-operation in Europe, “Repatriation of ‘Foreign Terrorist Fighters’ and Their Families Urgently Needed to Safeguard Human Rights and Security, OSCE Human Rights Head Says”, 11 February 2020, available at: www.osce.org/odihr/445909.
43 A. Dworkin, above note 25; A. Scherrer (ed.), above note 6, p. 49. Among the many reasons in favour of the repatriation of children is the appalling conditions in which many of them are being held in Syrian camps. See, for example, “UNICEF Urges Repatriation of All Children in Syria's Al-Hol Camp Following Deadly Fire”, UN News, 28 February 2021, available at: https://news.un.org/en/story/2021/02/1085982. Finland's government has also committed itself to repatriating children from camps in northern Syria and has even carried out the repatriation of two adult mothers. As there is no explicit reference to the requirement to prove nationality in the Finnish guidelines on returning children, it is not clear whether this was required in practice or not. See Finnish Government, “Government Outlined Guidelines for Repatriating Finnish Nationals from Al-Hawl Camp”, 16 December 2019, available at: https://tinyurl.com/38amtcea; Aleksi Teivainen, “HS: Finland Repatriated Two Women and Six Children from Al-Hol Camp”, Helsinki Times, 21 December 2020, available at: www.helsinkitimes.fi/finland/finland-news/domestic/18443-hs-finland-repatriated-two-women-and-six-children-from-al-hol-camp.html.
44 Laura Cools, “La reconnaissance d'un droit subjectif au rapatriement dans le chef des enfants belges retenus en Syrie: Un grand pas en avant”, Centre Charles De Visscher pour le Droit International et Européen, 31 December 2020, available at: https://tinyurl.com/s3xjd2u.
45 See, for example, Johny Vansevenant and Rik Arnoudt, “Automatisch terugkeerrecht voor kinderen van IS-strijders die jonger dan 10 zijn”, VTR News, 22 December 2017, available at: https://tinyurl.com/2hr6j6kz.
46 Jean-Pierre Stroobants, “La Belgique va rapatrier les enfants de djihadistes détenus en Syrie”, Le Monde, 5 March 2021, available at: https://tinyurl.com/f9rca9m8.
47 Tom Kington, “45,000 Children of Isis ‘Are Ticking Time Bomb’”, The Times, 8 May 2019, available at: www.thetimes.co.uk/article/45-000-children-of-isis-are-ticking-time-bomb-lp0nq9q2m.
48 Supreme Court of the Netherlands, Case No. 05/19666, ECLI:NL:HR:2020:1148, 26 June 2020, para. 2.5.
49 J. P. Stroobants, above note 46.
50 In this regard, IHL also prescribes that family life and, consequently, family unity must be respected as far as possible, and it would thus also seem to advocate for mothers to be repatriated together with their children. See Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005, Rule 105, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1.
51 “Bundesregierung muss Mutter und Kinder aus Syrien zurückholen”, Legal Tribune Online, 8 November 2019, available at: https://tinyurl.com/55y8jjda. As mentioned above, Finland also repatriated two mothers with their children, claiming it was not possible to repatriate the children alone; see above note 43.
52 L. Cools, above note 44.
53 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948 (entered into force 12 January 1951), Arts III–V.
54 See Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950), Arts 49, 50; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950), Arts 50, 51; Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950), Arts 129, 130; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950), Arts 146, 147.
55 See, for example, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984 (entered into force 26 June 1987), Art. 7.
56 Even though both international crimes (such as genocide, war crimes and crimes against humanity) and terrorism offences can incur a State's obligation to prosecute under universal jurisdiction and can indeed apply to the same situation (e.g., in a situation of armed conflict involving terrorist groups), they remain two different sets of crimes. In this regard, the European Network of Contact Points for Investigation and Prosecution of Genocide, Crimes against Humanity and War Crimes (Genocide Network) “reiterated the difference between the sets of legislation on counter-terrorism offences and core international crimes, namely the crime of genocide, crimes against humanity and war crimes. As both sets of legislation can apply to a particular case, in accordance with the respective national legislations, it is important to stress that core international crimes are different in nature than counter-terrorism offences.” See Genocide Network, Austrian Presidency of the Council of the European Union, and Eurojust, Conclusions of the 25th Meeting of the European Network of Contact Points for Investigation and Prosecution of Genocide, Crimes against Humanity and War Crimes, 14–15 November 2018, para. 3.
57 EU Counterterrorism Coordinator, Foreign Fighters and Returnees: Discussion Paper, EU Doc. 15715/14, Council of the European Union, Brussels, 24 November 2014, p. 3.
58 Ibid., p. 1.
59 Eurojust, Eurojust Memorandum on Battlefield Evidence, The Hague, September 2020, p. 2.
60 Hanne Cuyckens and Christophe Paulussen, The Prosecution of Foreign Fighters in Western Europe: The Difficult Relationship between Counter-Terrorism and International Humanitarian Law, Asser Research Paper Series 2019-04, TMC Asser Institute for International & European Law, 2019, p. 1, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3471908.
61 Ibid., pp. 1–2.
62 Ibid., p. 2.
63 International Committee of the Red Cross, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Geneva, October 2015 p. 17.
64 H. Cuyckens and C. Paulussen, above note 60, p. 21.
65 On accountability for children involved in conflict, see Júlia Zomignani Barboza, “Accountability for Child Soldiers Aged From 15 to 18”, in Fernando Bandeira, João Casqueira Cardoso, Glória Jólluskin, Cláudia Ramos and Isabel Silva (eds), Readings in Humanitarian Action and Cooperation for Development, Vol. 1, Publicações Fundação Fernando Pessoa, Porto, 2020. Some of the ideas included in this section derive from that piece.
66 Bethen McKernan, “Isis Defeated, US-Backed Syrian Democratic Forces Announce”, The Guardian, 23 March 2019.
67 Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child on the Fifth Periodic Report of the Syrian Arab Republic, UN Doc. CRC/C/SYR/CO/5, 6 March 2019.
68 Nyamutata, Conrad, “Young Terrorists or Child Soldiers? ISIS Children, International Law and Victimhood”, Journal of Conflict and Security Law, vol. 25, no. 2, 2020, p. 241CrossRefGoogle Scholar.
69 Ibid., p. 242.
70 J. Zomignani Barboza, above note 65, p. 123.
71 Mark A. Drumbl, Reimagining Child Soldiers in International Law and Policy, Oxford University Press, Oxford, 2012.
72 UNICEF, Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, February 2007, Principle 3.6.
73 Leonie Steinl, Child Soldiers as Agents of War and Peace: A Restorative Transitional Justice Approach to Accountability for Crimes Under International Law, Springer, Berlin, 2017, p. 12.
74 C. Nyamutata, above note 68, pp. 252–257.
75 Jo Becker, “Some Child Soldiers Get Rehabilitation, Others Get Prison”, Human Rights Watch, 4 March 2019.
76 European Parliament, above note 6.
77 See also Sabine von Schorlemer, “Human Rights: Substantive and Institutional Implications of the War Against Terrorism”, European Journal of International Law, Vol. 14, No. 2, 2003.
78 Bo Viktor Nylund, Child Soldiers and Transitional Justice: Protecting the Rights of Children Involved in Armed Conflict, Intersentia, Cambridge, Antwerp and Portland, OR, 2016.
79 J. Zomignani Barboza, above note 65, p. 123.
80 A. Scherrer (ed.), above note 6.
81 Christophe Paulussen and Kate Pitcher, Prosecuting (Potential) Foreign Fighters: Legislative and Practical Challenges, ICCT Research Paper, The Hague, 30 January 2018, pp. 23–24.
82 Ibid.
83 Marije Meines, Merel Molenkamp, Omar Ramadan and Magnus Ranstorp, Responses to Returnees: Foreign Terrorist Fighters and Their Families, RAN Manual, 2017, p. 53, available at: https://ec.europa.eu/home-affairs/sites/homeaffairs/files/ran_br_a4_m10_en.pdf.
84 Ibid., p. 54.
85 For further reading, see Preben Bertelsen, “Danish Preventive Measures and De-Radicalisation Strategies: The Aarhus Model”, Panorama: Insights into Asian and European Affairs, Vol. 1, No. 1, 2015.
86 For further information, see: www.demokratie-leben.de.
87 In particular, the effectiveness of exit programmes is considered to be largely unknown. Antonia Ward, “To Ensure Radicalisation Programmes Are Effective, Better Evaluation Practices Must First Be Implemented”, The Rand Blog, 2019, available at: www.rand.org/blog/2019/03/to-ensure-deradicalisation-programmes-are-effective.html.
88 RAN Exit, “Exit Work in a Multi-Agency Setting”, Ex Post Paper, 2016, available at: https://tinyurl.com/vekywy6j.
89 For further reading, see RAN Exit, “Outline: Deradicalisation Interventions for Violent Extremism”, Ex Post Paper, 2016, available at: https://tinyurl.com/fu48h7dj.
90 M. Meines et al., above note 83, pp. 70–71.
91 UN Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General, UN Doc. S/2004/616, 23 August 2004, para. 8.
92 Cecile Aptel, “International Criminal Justice and Child Protection”, in Sharanjeet Parmar, Mindy Jane Roseman, Saudamini Siegrist and Theo Sowa (eds), Children and Transitional Justice: Truth-Telling, Accountability and Reconciliation, Harvard University Press, Cambridge, MA, 2010, p. 352.
93 Manirakiza, Pacifique, “Les enfants face au système international de justice: À la recherche d'un modele de justice pénale international pour les délinquantes mineurs”, Queen's Law Journal, vol. 34, no. 2, 2009Google Scholar.
94 Derluyn, Ilse, Vandenhole, Wouter, Parmentier, Stephan and Mels, Cindy, “Victims and/or Perpetrators? Towards an Interdisciplinary Dialogue on Child Soldiers”, BMC International Health and Human Rights, vol. 15, no. 1, 2015CrossRefGoogle ScholarPubMed.
95 M. A. Drumbl, above note 71.
96 P. Manirakiza, above note 93.
