In 2014, reports suggested that a surge of foreign jihadists were participating in armed conflicts in Syria, Iraq, and elsewhere.^[1] The United Nations Security Council responded by imposing an array of obligations on member states to counter the threat posed by “foreign terrorist fighters” (FTFs). In the intervening year, those states have taken a range of actions—though at various speeds and with varying levels of commitment—to implement the foreign terrorist fighter (FTF) obligations imposed by the Council. Meanwhile, the levels of humanitarian need in conflicts involving FTFs—already devastating—continue to swell.

Scholars, security experts, and policy analysts have assessed a number of issues relating to foreign fighters in general^[2] and to FTFs in particular.^[3] The humanitarian situation and the accompanying challenges in conflicts involving FTFs are relatively well-documented as well.

Building on that analysis, this paper has two goals. First, we aim to provide a primer on the most salient issues at the intersection of counterterrorism measures and humanitarian aid and assistance, with a focus on the ascendant FTF framing. Second, we seek to put forward, for critical feedback and assessment, a provisional methodology for evaluating the following question: is it feasible to subject two key contemporary wartime concerns—the fight against FTFs and supporting humanitarian aid and assistance for civilians in terrorist-controlled territories—to meaningful empirical analysis?

Of course, foreign fighters are not a new phenomenon in war. Since the advent of the modern international system, foreigners and other non-nationals have participated in numerous armed conflicts.^[4] History books are replete with examples. Consider, for instance, the Texas Revolution (1835–36), the Spanish Civil War (1936–39), and certain recent conflicts in Afghanistan (1978–92).^[5]

Yet with the growing power and influence of the Islamic State of Iraq and al-Sham (ISIS), states have become increasingly concerned about the rise of foreign fighters, and especially a sub-group of those fighters increasingly referred to as FTFs. The apparent trigger was the influx of foreign nationals into the armed conflict in Syria. As this flow of fighters continued, the international community sharpened its focus not only on foreign nationals traveling to support parties in conflict in an internal war but, more specifically, on Muslims or recent converts traveling to Syria to join jihadi organizations. This concern grew with the rise of al-Qaeda in Iraq and ISIS.^[6] On September 24, 2014, President Barack Obama convened a meeting of the Security Council that culminated in the unanimous adoption of Resolution 2178. Building on a long line of anti-terrorism measures, the resolution aims to stem the flow of FTFs to conflict zones. During this summit, heads of state overwhelmingly agreed that the passage of this resolution, and the recognition of the threat posed by FTFs, represented a shift in the nature and threat of terrorism, and that states would need to respond with increased regulation and enforcement.^[7]

Meanwhile, many states continue to fund and otherwise throw their support behind life-saving humanitarian relief for civilians in armed conflicts around the world—including conflicts involving terrorists. Yet, in recent years, members of the humanitarian community have been increasingly aware of the real, perceived, and potential impacts of counterterrorism laws on humanitarian action.^[8] Part of their interest stems from the fact that certain counterterrorism laws may, intentionally or unintentionally, adversely affect principled humanitarian action, especially in regions where terrorist groups control territory (and thus access to civilians, too). The effects of these laws may be widespread—ranging from heightened due diligence requirements on humanitarian organizations to restrictions on travel, from greater government scrutiny of national and regional staff of humanitarian organizations to decreased access to financial services and funding. Counterterrorism measures may also in principle give rise to a “chilling effect” on humanitarian action. That is, humanitarian actors may choose not to undertake life-saving relief schemes that they otherwise would due to fears of violating counterterrorism laws and policies.

Themes and Outline

This report focuses on the concept of “foreign terrorist fighters” as it relates to U.N. Security Council practice and principled humanitarian action in situations of armed conflict involving terrorists. The following themes and inquiries form the broader backdrop for our analysis:

The rise of the concept of and the legal and policy frameworks concerning FTFs;
How those frameworks may affect existing counterterrorism laws, terrorist-listing mechanisms, and intelligence-sharing between governments;
How those frameworks may operate to broaden the monitoring and enforcement scope of key counterterrorism bodies, intelligence agencies, financial authorities, police, and courts;
The real or potential impacts of those frameworks on the practical aspects of principled humanitarian action, for example in relation to travel, financial services, visas, and exemptions;
Whether the FTF framing may operate so as to authorize increasingly robust offensive counterterrorism approaches; and
Whether the rise of the concept of FTFs represents an opportunity to recalibrate the relationship between principled humanitarian action and counterterrorism efforts.

The terms “foreign fighters” and “foreign terrorist fighters” lack definitional consensus in international law. For our purposes, we use the following definitions:

Foreign fighter: An individual who leaves his or her country of origin or habitual residence to join a non-state armed group in an armed conflict abroad and who is primarily motivated by ideology, religion, and/or kinship.^[9]
Foreign terrorist fighters (FTFs): As used by the United Nations Security Council: “Nationals who travel or attempt to travel to a State other than their States of residence or nationality, and other individuals who travel or attempt to travel from their territories to a State other than their States of residence or nationality, for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training.”^[10]

In Section 2, we frame the analysis by highlighting—at a 30,000-ft. view—potential trends and trajectories in the overlap between the counterterrorism and humanitarian spheres. Often thought to operate completely separate from one another, these spheres may come into contact, especially in armed conflicts involving terrorists. After foregrounding the normative and operational frameworks, we note that FTF-related counterterrorism measures—following a long line of measures implementing increasingly robust anti-terrorism agendas—may have the capacity to adversely affect certain aspects of principled humanitarian action.^[11] Our research suggests, however, that more documentation from humanitarian organizations would be needed to firmly establish a systemic adverse impact of FTF-related counterterrorism measures on principled humanitarian action. We also note that the FTF framing by the Security Council may present a particularly strong opportunity for meaningful engagement between counterterrorism and humanitarian actors.

Next, in section 3, we submit an analytical methodology aimed at ascertaining from an empirical perspective how (certain select) states have implemented the FTF-related obligations imposed by the Security Council in Resolution 2178 (2014) one year after its adoption. We also put forward a methodology aimed at ascertaining from an empirical perspective whether those same states are supporting—or, at least, not actively curtailing—humanitarian aid and assistance, especially in relation to conflicts involving FTFs and other terrorists. This section also offers provisional figures generated from the application of these methodologies to extant sources. In doing so, we propose—and invite critical feedback on—new ways to measure both of these areas of state practice.

In the Conclusion, we highlight areas that merit further attention from counterterrorism and humanitarian actors. We also observe how states, U.N. bodies, and humanitarian organizations can provide a better basis on which to formulate research and analysis—and thus, ultimately, policy—with respect to FTF measures and to principled humanitarian action in terrorist-controlled territories.

^[1] See, e.g., Spencer Ackerman, Foreign Jihadists Flocking to Iraq and Syria on Unprecedented Scale – UN, The Guardian (Oct. 30, 2014).

^[2] Foreign Fighters Under International Law, Geneva Academy of International Humanitarian Law and Human Rights (Oct. 2014).

^[3] See, e.g., Daniel Byman & Jeremy Shapiro, Be Afraid, Be a Little Afraid: The Threat of Terrorism from Western Foreign Fighters in Syria and Iraq, Brookings Institution, Policy Paper No. 34 (Nov. 2014).

^[4] See, e.g., David Malet, Foreign Fighters: Transnational Identity in Civil Conflicts 2013.

^[5] Interview by Robert Siegel with David Malet, University of Melbourne, NPR News (Oct. 21, 2014).

^[6] See, e.g., Nick Cumming-Bruce, Extremist Groups in Iraq Threaten Regional War, U.N. Panel Warns, N.Y. Times (June 17, 2014) http://www.nytimes.com/2014/06/18/world/middleeast/extremist-groups-in-iraq-threaten-regional-war-un-panel-warns.html.

^[7] See, e.g., Remarks of President Francois Hollande, U.N. SCOR, 7272 mtg. at 6, U.N. Doc. S/PV.7272 (Sept. 24, 2014).

^[8] See, e.g., Sara Pantuliano et al., Counter-terrorism and Humanitarian Action: Tensions, Impact and Ways Forward, Humanitarian Policy Group, Policy Brief 43 (Oct. 2011).

^[9] Foreign Fighters Under International Law, Geneva Academy of International Humanitarian Law and Human Rights (Oct. 2014), at 6.

^[10] S.C. Res. 2178, para. 6(a), U.N. Doc. S/RES/2178 (Sept. 24, 2014).

^[11] For purposes of this report, by “principled humanitarian action,” we mean humanitarian action defined by the principles of humanity, independence, neutrality, and impartiality. Humanity means that human suffering must be addressed wherever it is found. Neutrality means that humanitarian actors must not take sides in hostilities. Impartiality means that humanitarian action must be carried out on the basis of need alone, and making no distinctions on the basis of characteristics such as nationality, race, and gender. Independence means that humanitarian action must be autonomous from the objectives of any actor with regard to the areas where humanitarian action is being implemented. See, e.g., UN OCHA on Message: Humanitarian Principles, https://docs.unocha.org/sites/dms/Documents/OOM-humanitarianprinciples_eng_June12.pdf.