Second year undergraduate student and Dickson Poon Scholar of the LLB in Politics, Philosophy & Law (PPL) at King’s College, London
The European legal order is beset by an unprecedented challenge today. Domestic nationals, prevailingly of Western European origin, are engaged at the centre of ideological conflicts in Iraq and Syria in increasing numbers. Against the backdrop of sectarian conflict and the proliferation of terrorist networks, European ‘foreign fighters’ pose a significant threat, upon return, to the security and prosperity of their Member States (MS) of origin. National governments have enacted legislation in recent months in order to stem the tide of European fighters leaving and re-entering Union or State territory, accentuating the need for a collaborative and synergetic regional strategy. This article assesses the impediments, actual and potential, to the prevention and prosecution of foreign fighter criminality in the Middle East region (ME) under European Union law. It identifies potential lacunae in the law, concluding with the case for EU-wide legislation facilitating the arraignment of foreign fighters consistently across MS, as proposed by Gilles De Kerchove, Brussels’ Counter-Terrorism Coordinator (CTC), at the Commission in December 2014.
At first glance, the free movement of persons, provided for under the Citizens’ Directive 2004/38, presents a potential impediment to the apprehension of foreign fighters en route to conflict zones in the ME via the Eastern Mediterranean, insofar as that Directive ascertains the right of Union citizens ‘to move and reside freely within the territory of the Member States’. The establishment of Europe’s internal market entailed the abolition of customs duties, whilst the implementation of the ‘Schengen Agreement’ hastened the closure of internal border checks in the interests of greater economic integration. The right of European citizens to move freely within the Schengen Area goes to the very heart of the concept of the ‘supranational community’, defined by economic and politico-legal integration within a single external border. As the corpus of case-law relating to the free movement of persons demonstrates, the Court of Justice of the European Union (CJEU) reveres the principle of the single market and, by extension, the right of citizens to move freely within its parameters features prominently within its jurisprudence.
The difficulty in respect of foreign fighters lies in the fact that European citizens are, by virtue of the free movement provisions, capable of traversing the Continent on a single visa policy and without checks to the person at border crossings. The express derogations contained in Article 27 Directive 2004/38 enable MS to impede, in the interests of ‘public security’, the travel of said individuals. Article 27(1) would justifiably exclude foreign fighters from the enjoyment of the ‘primary and individual right’ of the European citizen to free movement within the internal market due to the threat they pose to public security. Similarly, Article 27(2) permits MS to curtail the citizen’s right to free movement on the grounds of the ‘personal conduct’ of the individual. In Van Duyn, the Court specified that for ‘personal conduct’ to fulfil the criteria of Article 27(2) it must be ‘socially harmful’. This was refined in the Bouchereau judgment, where the Court identified the need for a ‘genuine and sufficiently serious threat’ in order to derogate from the provisions for personal mobility contained in Article 1. These derogations would enhance the probability of apprehending foreign fighters seeking to capitalise on the porous nature of the borders of Europe’s internal market.
However, an information problem is likely to impede, in practicality, the State from preventing foreign fighters from leaving their MS of origin en route to conflict zones in the ME, as recent case-studies show that the departure of European fighters for Iraq and Syria is not always foreseeable. When politicians and security services are unable to apprehend potential combatants prior to their departure, the legal mechanism in place to deny the right to personal mobility is rendered inapplicable, for that provision operates prospectively and loses its efficacy post-departure. This underscores the liability of the internal market to manipulation by radicals seeking to join the conflict in the ME via Union territory. There is a very credible danger of a diaspora of European extremists, necessitating a review of the operation of the open borders.
In light of the foregoing, the Schengen Information System should begin to centrally record the entry and exit of travellers in and out of the open borders zone. In this vein, the Commission introduced plans for greater border checks in November 2014. This adjustment would enhance national and regional security by identifying potential fighters intending to exit Union territory in order to join conflicts in Iraq and Syria, and ensuring that all individuals in transition are legitimately en voyage. Furthermore, the implementation of the PNR (‘Passenger Name Record’) Directive, presently the subject of renewed debate, may, if given legislative assent, compel airlines to provide data on travellers peregrinating Union territory and third countries, thereby facilitating the ‘prevention, detection, investigation or prosecution of terrorist offences or serious transnational crime’, although its potential infringement of data protection and privacy regulations has raised concern amongst legislators in recent weeks. Additionally, the European Arrest Warrant would facilitate the extradition of extremists in allowing the national judiciary to dispatch the aforementioned to their MS of origin for prosecution under domestic law, palpably the de facto strategy of the Commission.
Especial consideration must be given to the phenomenon of returning fighters, in respect of whom European law may require revision. European law prohibits, at present, the implementation of the U.N. Terrorism Watch List in Union MS due to its propensity to breach fundamental human rights (FHR). In its Kadi II judgment, having identified a lack in the means of redress and judicial review available to the defendant, the Court disregarded national measures transposing the Watch List, accentuating its commitment to the protection of FHR and civil liberties.
The rejection of legislation transposing the Watch List does, however, enable returning foreign fighters to potentially evade detection by circumventing the framework intended to expedite their apprehension. Prior to the designedly-preventative national legislation of recent months, returning foreign fighters could return and reintegrate, perturbingly without scrutiny, under the eyes of State authorities. Considering that scores of European fighters affiliate themselves to criminal, extremist and/or terrorist organisations during their stay in the conflict zones and, on those grounds, pose a credible threat to society at-large upon their return to Union territory, the need to enact laws to mitigate potential security threats with the aid of U.N. Watch Lists is fundamental.
MS have, therefore, debated legislation in recent months on the revocation or suspension of passports belonging to foreign fighters, as a means of deterring their return to their home country. The forthcoming U.K. Counter-Terrorism and Security Bill will allow police forces to seize passports temporarily from suspected fighters with a view to disrupt terrorist activity, both at home and abroad. France, Austria and the Netherlands have adopted, or are presently debating, similar proposals. Such legislation enables State authorities to tackle the threat of foreign fighters effectively and comprehensively, providing adequate legal apparatus for law-enforcement agencies to apprehend fighters, both before departure and upon return, through the suspension of citizenship. The potential infringement of individual liberty resulting therefrom is, however, concerning for advocates of FHR and civil liberties, especially considering the Court’s FHR-related jurisprudence and notwithstanding the exigent nature of the contemporary politico-legal world picture.
The compatibility of these measures with European, but also international and transnational, laws merits further discussion. The CJEU, given the primacy it ascribes to the concept of Union citizenship, will likely invalidate national legislation providing for the confiscation of passports, for that measure will inevitably restrict due process and is potentially disproportionate; significantly, the Commission has yet to approve of national measures to that effect.
That the ECtHR will declare such measures incompatible with the European Convention on Human Rights (ECHR) is nigh indisputable, especially considering its judgment in Al Husin v. Bosnia and Herzegovina, where the Strasbourg Court halted State authorities from extraditing the applicant – a veteran of the Bosnian Mujahideen suspected of terrorism – to his native Syria, fearing for his personal welfare following evidence of the detention and torture of radicals in Syrian prisons.
This evidences a disjuncture between the counter-terrorism measures proposed by MS in order to mitigate the threat of domestic-origin ‘foreign fighters’ and the jurisprudence of the institutions of EU law as well as the U.N. and ECHR, defined unifiedly by an unyielding commitment to FHR protection. The dilemma of central importance to this article is essentially that European law, in enforcing measures to protect FHR so resolutely, whilst ordinarily commendable and irrefutable, may sometimes hamper the efficacy of national measures implemented to prevent and prosecute foreign fighter crimes, both within and beyond the parameters of European jurisdiction.
One means of redress would be to allow a greater margin of appreciation or discretion to MS vis-à-vis national security matters. Providing that national legislation complies with the requirements of proportionality, namely necessity and suitability, MS should be afforded a degree of autonomy in the enactment of laws governing domestic security, which will presumably be informed by reconnaissance. This is both reasonable and more appropriate, for the foreign fighters phenomenon is not by any means monolithic and differs by MS on account of demographic, political and socio-economic context. In this respect, governmental methods of prevention and prosecution will quite credibly differ among MS.
A second solution, De Kerchove’s aforementioned proposal, is the harmonisation of laws so as to effect a single law across MS, dealing coherently and comprehensively with the threat of returning foreign fighters. Harmonised legislation will effectively mitigate the threat whilst ensuring legislative consistency between MS and reducing procedural complexities. The single flaw in this proposition is its restriction of national legislatures’ ability to determine domestic security law in instituting a single, continental policy. A pluralist, rather than a singular, framework would allow governments to enact laws best suited to the particularities of their national contexts, with reference to political culture and legal weltanschauung. As Thorbjørn Jagland, Secretary-General of the Council of Europe, notes, governments will deal differently with returning foreign fighters: some will favour ‘hard’ prosecution-oriented measures, whilst others will adopt ‘soft’ methods entailing de-radicalisation and re-integration training programmes.
A brief glance at the legal picture reveals that lacunae in European law may prove obstructive to the prevention and prosecution of foreign fighter crimes, both in ME conflict zones and in Europe. The Commission must therefore continue its border reforms and heightened security measures at internal checkpoints. In recognition of the exigencies of the crisis, there is a pressing need for MS to be allowed the discretion to enact national security measures deemed necessary, providing their compliance with the principles of proportionality and legality. Lest the CJEU invalidate those domestic laws, impeding their efficacy on account of the potential violation of FHR, Brussels must allow greater autonomy to MS vis-à-vis national security matters. Alternatively, the Union could implement singular, harmonised legislation providing for the prevention and prosecution of foreign fighter crimes uniformly throughout its territory. Ultimately, either measure would contribute to the diminishment of foreign fighter crimes. The onus now lies with policymakers at Brussels to sharpen Union strategy so as to optimise Europe’s defence against potential threats to national and regional security from its own citizens returning radicalised from war.
 ANSAmed, ‘EU Anti-Terrorism Chief Wants Law Against Foreign Fighters: ‘More Collaboration with Med Nations Needed, De Kerchove’, (ANSAmed, 4 December 2014) <http://www.ansamed.info/ansamed/en/news/sections/politics/2014/12/04/eu-anti-terrorism-chief-wants-law-against-foreign-fighters_72a0f475-d801-4598-a35a-ca5c2577765b.html> accessed 22 December 2014
 Officially the ‘Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders’ 1958
 See European Commission, EU Citizenship Report 2010: Dismantling the Obstacles to EU Citizens’ Rights (COM, 603 final, 2010)
 Case C-30/77 Régina v Pierre Bouchereau  ECR 1999
 European Commission, Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the use of Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime, (COM, 0032 final, 2010)
 Case T-85/09 Yassin Abdullah Kadi v European Commission 
 Geneva Academy of International Humanitarian Law and Human Rights, Foreign Fighters Under International Law, (Academy Briefing, no. 7, 2014)
 Debating Europe, ‘Should Europeans Fighting in Iraq and Syria have their Citizenship Removed?’ (Debating Europe, 15 October 2014) <http://www.debatingeurope.eu/2014/10/15/eu-citizens-fight-isis-citizenship-removed/#.VKCPfF4gAA> accessed 14 November 2014
 Al Husin v. Bosnia and Herzegovina App no 3727/08 (ECHR, 7 February 2012)
 By which I refer to the intellectual orientation of the societies of each MS towards global phenomena, specifically the configuration of beliefs and approaches towards, and informing interaction with, such phenomena that occurs uniquely in each MS on account of differences in cultural character, societal inclinations and collective values.
 Council of Europe, ‘Jagland: Europe Needs a Common Framework to Fight Challenge of ‘Foreign Fighters’ and ‘Islamic State’ Terrorism’, (Council of Europe, 7 November 2014) <http://www.humanrightseurope.org/2014/11/jagland-europe-needs-a-common-legal-framework-to-fight-the-challenge-of-foreign-fighters-and-so-called-islamic-state-terrorism/> accessed 1 December 2014