Dogs of War or Jackals of Terror? Foreign Fighters and Mercenaries in International Law

[International Community Law Review]

The threat of “blowback” from foreign fighters, unaffiliated volunteers who join an insurgency in a distant land, has led states to explore a variety of normative mechanisms. Among these is the international legal regime applicable to mercenaries. This short article considers the evolution of mercenarism and the efforts to regulate it. Attempts to fit foreign fighters into that normative category are unlikely to succeed. In part this is due to the question of motivation, which is central to most definitions of mercenary and focuses on private gain. But it is also linked to the reasons for regulation in the first place: mercenaries are seen as threats in the states to which they travel, while foreign fighters are primarily deemed threats by the states to which they might return.

 

Foreign fighters, unaffiliated volunteers who join an insurgency in a distant land, are not new. Though much attention is paid to those joining Islamist insurgencies — notably in Afghanistan in the late 1980s, Bosnia and Chechnya in the 1990s, and most recently in Syria & Iraq — large numbers of foreign fighters were also found among the International Brigades of the Spanish Civil War in the 1930s and the Jewish volunteers in the Arab-Israeli war of 1948. The history of individuals choosing to leave their own state to fight in another stretches back far further. Nevertheless, there is today a tendency to conflate foreign fighters with both Islam and Islamist terrorism. This can be seen, for example, in the Security Council’s use of the phrase “foreign terrorist fighters” when condemning the terrorist acts of Islamic State in Syria and in Iraq.

The challenge of regulating those who travel abroad to participate in an insurgency outside of any official military organization has raised the question of whether they should be considered within the framework of mercenarism. Both foreign fighters and mercenaries participate in conflicts in states of which they are not citizens, so a comparison is understandable. Nevertheless, the analogy is flawed in two ways. The first is the motivation of the individuals participating in conflict: the definition of mercenary includes desire for private gain as a central element, whereas foreign fighters are generally unpaid and fight for ideological, religious, or other purposes. The second reason is that the two regulatory challenges are quite different: whereas mercenaries are seen as a threat to the states to which they travel, efforts to regulate foreign fighters tend to be driven by fears in the state to which they might return.

This article first describes the evolution of mercenarism as a phenomenon, before considering efforts to regulate it. Of particular interest is the intention underlying regulation, and how that compares with the contemporary attempts by various states to mitigate the risks posed by foreign fighters.

The full paper is available at SSRN.com here.