Prosecuting (Potential) Foreign Fighters: Legislative and Practical Challenges

This research paper is the first publication based partly on the foreign fighter cases incorporated and analysed in the International Crimes Database (ICD). This is a comprehensive and free database on international crimes (broadly defined), which is maintained by the T.M.C. Asser Instituut and supported by, among others, the International Centre for Counter-Terrorism – The Hague (ICCT). The aim of this research paper is to provide a critical assessment of both the underlying legal frameworks and the concrete prosecutions of (potential) foreign fighters at the national level. To that end, the supranational legal instruments will be analysed first (Section 2), starting with the international level (Subsection 2.1) and the regional level (Subsection 2.2). After that, this paper will examine how the national level has dealt and is still dealing with the issue of (potential) foreign fighters (Section 3), both in terms of legal bases and prosecutorial approaches. After that, and a brief introduction (Subsection 4.1), two specific and major challenges pertaining to prosecutions will be addressed in Subsections 4.2 (the role of the prosecutor) and 4.3 (evidentiary issues). Subsequently, the authors will present two broader concerns in Subsection 4.4, related to the further move into the pre-crime space (4.4.1) and the issue of effectiveness (4.4.2). In the last section of the paper, Section 5, the authors will present their final observations and recommendations. Besides offering a number of concrete suggestions to (somewhat) address prosecutorial, and especially evidentiary, challenges, the main point they will make is now that international, regional and national legislators have adopted the (oftentimes troublesome) laws that enable the prosecution of (potential) foreign fighters, magistrates and especially prosecutors should have a great(er) role in assessing whether actual prosecution or adjudication is appropriate in a specific case.