Evidentiary and Charging Matters in the Context of Prosecuting Returning Foreign Fighters before National Courts

23 Pages Posted: 11 Oct 2021 Last revised: 22 Oct 2021

See all articles by Christophe Paulussen

Christophe Paulussen

T.M.C. Asser Instituut

Tanya Mehra

affiliation not provided to SSRN

Date Written: September 21, 2021

Abstract

States have been reluctant to repatriate their foreign fighters and families for a variety of reasons. One of these is of a legal nature, namely that prosecution at home would be too difficult because of a lack of evidence. After a brief overview of possible other options, this chapter will focus on the prosecution of returning foreign fighters before national courts. While acknowledging that securing evidence is and will remain difficult, this chapter points to a number of evidentiary and charging opportunities that show potential in somewhat overcoming this challenge. These could assist prosecutors in focusing on what should have their priority, namely the actual acts committed, such as war crimes and other international crimes. This chapter will also demonstrate that, in addition to membership of a terrorist organisation, there are other charges out there that do not require establishing what the returning foreign fighter has actually done while being abroad. The aim of presenting these in this chapter should not be seen as an endorsement – their critical examination will make this quite clear – but as a demonstration of the fact that the refusal to repatriate and prosecute can only be explained by a lack of political will, and not because of a lack of prosecutorial options.

Keywords: repatriation, prosecution, international crimes, information collected from conflict zones, information collected from open sources and social media, pre-crime space

JEL Classification: K33

Suggested Citation

Paulussen, Christophe and Mehra, Tanya, Evidentiary and Charging Matters in the Context of Prosecuting Returning Foreign Fighters before National Courts (September 21, 2021). T.M.C. Asser Institute for International & European Law, Asser Research Paper 2021-06, forthcoming in: Capone, F., Paulussen, C. and Mignot-Mahdavi, R. (eds.), Returning Foreign Fighters: Responses, Challenges and Ways Forward, The Hague: T.M.C. Asser Press, (2022), Available at SSRN: https://ssrn.com/abstract=3938926

Christophe Paulussen (Contact Author)

T.M.C. Asser Instituut ( email )

P.O. Box 30461
2500 GL The Hague, 2517JN
Netherlands

Tanya Mehra

affiliation not provided to SSRN

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