Neutrality Law, Anti-Terrorism and Foreign Fighters: Legal Solutions to the Recruitment of Canadians to Foreign Insurgencies
University of British Columbia Law Review, Forthcoming
40 Pages Posted: 4 Jan 2015 Last revised: 25 Aug 2015
Date Written: January 2, 2015
This article discusses legal strategies for dealing with the “foreign fighter” problem – that is, Canadians travelling to participate in foreign insurgencies. It reviews the empirical literature in an effort to define the scope and policy importance of “foreign fighters”. It then examines comparative legal strategies grappling with the phenomenon, before assessing Canada’s own legal tools. The article focuses on a serious omission in the Canadian tool-kit: the absence of an effective “neutrality law”, available to prevent foreign fighter departures and penalize returns independent of (legally convoluted) preoccupations with terrorism. The article warns that approaching foreign fighters through the optic of anti-terrorism shackles state responses, and can be best viewed as an exercise in expediency. On the one hand, this expediency risks contorting legal tools in a manner that may ultimately undermine and even discredit government actions. On the other hand, it leaves serious blind-spots and gaps in the state’s response to foreign fighters. The article recommends, therefore, a back-to-the-future strategy of renewing Canada’s antiquated neutrality law.
Keywords: terrorism, foreign fighters, Syria, Canada, national security, law, neutrality
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