Evidentiary and Charging Matters in the Context of Prosecuting Returning Foreign Fighters before National Courts
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)
23 Pages Posted: 11 Oct 2021 Last revised: 22 Oct 2021
Date Written: September 21, 2021
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: Suggested Citation