• Furthermore, the designation of individuals as FTFs should be based on what individuals have done, and intended to do, not on the deemed nature, or designation, of a group
or a cause which they are deemed to support. Many measures to date have focused
on preventing and responding to prohibited travel to particular states, or to support
named groups,74 though this designation runs the risk of selectivity and manipulation.
The problem of politicization, selectivity and lack of transparency around the process
of “terrorist” designation is longstanding. The vast number of prohibited “terrorist”
organizations and entities, so deemed by states around the world or identified on terrorist lists nationally and internationally, means the scope and impact of the measures
adopted in the few years since the adoption of UNSC Resolution 2178 (2014) could
greatly increase in the years to come.
• Although FTF-related provisions refer to “fighters”, the scope of those covered by
the provisions goes far beyond those engaging in combat.75 It reaches travelers who
engage in an array of roles abroad and in relation to quite different types of groups,
as well as a much broader web of individuals deemed to be supporting, facilitating or
encouraging such travel. In light of available facts, which indicate that very many of
those covered by FTF laws and policies were in fact not engaged in fighting in any way,
the use of the term is misleading. It also conveys the intention to address participation
in armed conflict, while covering civilians who do not engage in “direct participation
in hostilities” and therefore enjoy general protection under humanitarian law.76
Implications for the Application of International Humanitarian Law
In accordance with the introductory paragraphs of UNSC Resolution 2178 (2014) and
most other resolutions, states must interpret their FTF obligations consistently with
international humanitarian law (IHL) and they should not undermine the operation
or effectiveness of IHL. The conflation of “terrorism” and “armed conflict” in the Resolution raises significant international rule of law issues, which states should seek to
address through implementation.
There is a long history of opponents in an armed conflict, especially a non-international
armed conflict, being labeled “terrorists”. However, acts of terrorism that may arise in
armed conflict must be distinguished from mere participation in a conflict. The International Committee of the Red Cross (ICRC) and others have underscored the importance of clarifying the distinction between the two to preserve the proper functioning
of IHL. While participation in a non-international armed conflict may, in practice, lead
74 UNSC Resolutions since 2015 have named specific groups.
75 See: UN Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination (hereafter, UN Working Group on mercenaries), Report to the
UN General Assembly, UN Doc. A/70/330, 19 August 2015.
76 For further information on what constitutes “direct participation in hostilities” see e.g., Nils Melzer,
“Interpretative guidance on the notion of direct participation in hostilities under international humanitarian
law”, International Committee of the Red Cross (ICRC), <www.icrc.org/eng/assets/files/other/icrc-002-0990.
pdf>. The issue has given rise to particular concern in relation to responses to women whose support or roles have
often (though, as noted in section 3.7 below, not always) fallen far short of standards concerning direct participation in hostilities.
24
Guidelines for Addressing the Threats and Challenges of “Foreign Terrorist Fighters”
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents