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The UN Foreign (Terrorist) Fighter Regime and International Criminal Law

Published online by Cambridge University Press:  22 March 2019

Moira Macmillan
Moira Macmillan*
Affiliation:
Foreign and Commonwealth Office, Legal Directorate, United Kingdom.
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Extract

I am going to consider the UN Foreign (Terrorist) Fighter FTF regime from a different perspective, by exploring how the regime interacts with both the international law relating to terrorism and international criminal law. I will to do this by looking first at the definition of terrorism and then at how the UK Supreme Court approached the issue of terrorism and armed conflict. In addition, I am going to apply a little prosecutorial pragmatism to these difficult legal issues, and suggest that we focus on the crime.

Type
Foreign Fighters: Looking Beyond Counterterrorism Laws
Information
Proceedings of the ASIL Annual Meeting , Volume 112 , 2018 , pp. 310 - 314
Copyright
Copyright © by The American Society of International Law 2019 

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Footnotes

The views reflected in these remarks are personal and should not be assumed to reflect the position of the United Kingdom on these issues.

References

1 The war crime of terror attacks consists of “acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population” (actus reus) with the mens rea of the specific intent to spread terror. Prosecutor v. Galič, No. IT-98-29-A, Judgment (Int'l Crim. Trib. for the Former Yugoslavia Nov. 30, 2006).

2 Section 1 of the Terrorism Act 2000 defines “terrorism” as: “(1) the use of threat of action, inside or outside the UK, where the action consists of serious violence, serious damage to property or creates a serious risk to the safety or health of the public; where (2) the use or threat is designed to influence the government or an international governmental organisation, or to intimidate the public” (emphasis added).

3 R v. Gul, [2013] UKSC 64.

4 Id. at [26], quoting R v. F [2007] QB 960 [27] (emphasis added).

5 Note that the CCIT would, if agreed, introduce individual criminal liability.

6 SC Res. 2379 focuses on a first step toward justice: the collection and preservation of evidence to make prosecutions possible. It calls on the UN secretary general to establish an investigative team to collect, preserve, and store evidence of Daesh's crimes, beginning in Iraq. The team will be led by a special adviser with a mandate to promote bringing Daesh to justice across the globe. It does not establish a court or specify how or where Daesh should be prosecuted.