Helene Højfeldt

Aarhus University

Helene Højfeldt
Staff Page: pure.au.dk

The Criminal Liability of Foreign Fighters

The project examines the criminal liability of foreign fighters. It seeks to identify any restrictions under international law on the application of domestic criminal law to conduct committed by non-State actors in times of armed conflict. The prosecution of foreign fighters for legal acts of war and the rising number of new legislative measures initiated by many Western States in an attempt to meet the perceived threat of returning foreign fighters illustrates a conflation of legal regimes. I argue that it is highly problematic to frame the issue of foreign fighters exclusively in terms of the terrorist threat that they may pose upon return, and that transposing counter-terrorism laws into an armed conflict context may ultimately be detrimental to the legal regime of international humanitarian law.

The analysis differs from a study of separate legal systems by its comparative approach, which is of a twofold nature. It involves both a ‘vertical’ comparison between three levels of legislation (international, regional and national), and a ‘horizontal’ comparison between different national legal orders. It seeks to examine the interrelationship between different international legal systems, as well as to compare the implementation and interpretation of international law in the domestic law of a number of specific chosen States (incl. Denmark, Norway, Sweden, and possibly others). The comparative dimensions will necessarily influence both the range of issues discussed and the selection of sources.