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My thanks to An Hertogen, Arie Rosen, participants at seminars held at the University of Auckland and KU Leuven, as well as the journal's reviewers for helpful comments on this article. Any errors remain my own.
I. INTRODUCTION
A member of a disfavoured religious group departs to fight overseas with an armed group composed of his co-religionists. He returns home an experienced fighter with specialised skills, which he subsequently employs in furtherance of a plot with other co-religionist conspirators to destroy various institutions of State—all with the ultimate aim of restoring his religious group to its rightful place of prominence.1
The 1605 gunpowder plot was of course thwarted; Guy Fawkes and his co-conspirators were either killed or executed. Guy Fawkes, as an individual who participated in an overseas conflict and then engaged in domestic terrorism upon return, can be understood as an early manifestation of a threat currently faced by Western security services.2 The complication, however, is finding the potential domestic terrorists from among a large pool of foreign fighters, individuals who travelled to join both pro-government and rebel forces fighting in the Syrian civil war.
Being a foreign fighter is not a crime under international law;3 nor is it per se criminal under the domestic law of most States to fight with an armed group in a foreign conflict.4 Indeed, as noted in section II, foreign fighting lacks a settled legal definition. Nevertheless, the downstream security concerns resulting from the influx of foreign fighters to the Syrian conflict have resulted in a raft of legal responses. The centrepiece of the international legal response is United Nations Security Council Resolution 2178 (UNSCR 2178),5 adopted in September 2014, which requires that member States ensure that their laws are sufficient to respond to the threat of foreign terrorist fighters. The approach taken by UNSCR 2178 is to treat foreign fighting as a form of terrorism, thereby conflating two distinct phenomena. The clearest illustration of this is UNSCR 2178's use of the term ‘foreign terrorist fighter’ (FTF). All three elements of the term are to some degree problematic, but none more so than the descriptor ‘terrorist’, which also anchors the response to foreign fighting under a counterterrorism paradigm.
While the international legal dimension...