Persisting Tensions: The Framing of International Legal Debates on Foreign Fighting
AuthorLloydd, Marnie Elspeth
AffiliationMelbourne Law School
Document TypePhD thesis
Access StatusThis item is embargoed and will be available on 2022-12-01.
© 2020 Marnie Elspeth Lloydd
The issue of foreign fighting is approached today within a predominant framing of counterterrorism and security. Yet, international legal debate over the twentieth century to today demonstrates a grappling with richer debates and histories surrounding private individuals participating in “other people’s wars”. By carefully considering the alternative framings and international legal responses surrounding a broader range of foreign fighting, this thesis reveals the powers and limits of the present counterterrorism framing of foreign fighter issues. Not only has a counterterrorism approach proven problematic in its operation, but the continued participation in warfare of foreign fighters of different categories and persuasions means that a framing focusing solely on counterterrorism risks over-extension or reaches limits in terms of providing satisfactory responses to broader questions surrounding foreign fighting. This thesis argues that those working with international law are not limited to a counterterrorism framing of foreign fighting; that there is a richer repertoire of possible argument available within international law than may at first be appreciated. This argument is made by stepping back to consider three selected moments of foreign fighter regulation between 1907–2014, namely, neutrality law and the response to foreign volunteer fighters during the Spanish Civil War, the definition and attempted criminalisation of mercenaries following the conflicts linked to decolonisation, and the Security Council’s 2014 definition of foreign terrorist fighter. This study demonstrates how in each setting, legal debate, assessment of the key issues at stake, and resultant determinations took place within a powerful predominant legal framing of the foreign fighter issue, affecting the scope and focus of legal argumentation: neutrality and abstention at the beginning of the century, self-determination during decolonisation, and counterterrorism in the twenty-first century. At the same time, the thesis makes visible how red threads of debate surrounding foreign fighting reoccur across time and setting, and continue to resonate today. These include questions about the public and private, about foreignness, about ideological motivations and the commercialisation of force, about groups and individuals, abstention and intervention, harm and required levels of diligence. What emerges from this project is a view of both the change and the stasis in international law surrounding foreign fighting: changes, such as legal determinations made within alternative framings in different moments and the resultant definitions of categories of foreign fighters, and tensions — red threads — that persist throughout the debates. The tensions are always there but are argued and settled differently in different situations in line with the dominant framing of the moment. This thesis suggests the complementary explanatory power offered by paying attention to the operation of the counterterrorism framing; what it allows and what it obscures, and by thinking more generously and creatively about the shape of debates across different phenomena of foreign fighting, and, thus, the concerns and values beyond terrorism upon which determinations about foreign fighting could be based.
KeywordsForeign fighting; Foreign terrorist fighter; Foreign volunteer; Mercenary; Spanish Civil War; International Brigades; International Law; Counterterrorism; Neutrality Law; Security Council Resolution 2178; Friendly Relations Declaration; Due diligence; State responsibility; Framing; Self-determination
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