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Foreign Fighters


© Aloys Oosterwijk & ANP Foto

Welcome to the Foreign Fighters Tab of the International Crimes Database (ICD). This Tab, which is maintained by the T.M.C. Asser Instituut and sponsored by the International Centre for Counter-Terrorism – The Hague (ICCT), will collect cases of (individuals related to) (potential) foreign fighters, who could be defined as “individuals, driven mainly by ideology, religion and/or kinship, who leave their country of origin or their country of habitual residence to join a party engaged in an armed conflict” (A. de Guttry, F. Capone and C. Paulussen, ‘Introduction’, in: A. de Guttry, F. Capone and C. Paulussen (eds.), Foreign Fighters under International Law and Beyond, T.M.C. Asser Press/Springer Verlag (2016), p. 2.)

Often, the topic of foreign fighters is looked at from a (limited) counter-terrorism perspective only. In those cases, the object is not foreign fighters as such, but foreign terrorist fighters. This term has been defined in several ways, but the most authoritative one can be found in UN Security Council Resolution 2178 of September 2014, which refers to “individuals who travel 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, including in connection with armed conflict”.

Conversely, this Tab will collect cases of (individuals related to) (potential) foreign fighters as such, whether the suspects are charged with terrorism-related crimes (which admittedly will often be the case), war crimes or any other crimes.

Through the analysis of these cases, policy makers, practitioners and scholars alike will get a better insight into how (individuals related to) (potential) foreign fighters are prosecuted and which lessons learned can be distilled from these prosecutions. These lessons will be incorporated in papers that will be placed on both the ICCT website and this ICD Foreign Fighters Tab.

The first paper, based in part on the ICD case summaries, as well as other sources, is entitled ‘Prosecuting (Potential) Foreign Fighters: Legislative and Practical Challenges’ and is authored by Christophe Paulussen and Kate Pitcher. It can be found here: https://icct.nl/publication/prosecuting-potential-foreign-fighters-legislative-and-practical-challenges/

The Foreign Fighters Tab has just been launched and hence the number of cases is still limited. However, more cases will be uploaded in the future.

Though the ICD is managed by a competent team of editors and interns, and already contains, in addition to several videos and working papers, more than 700 cases, any help would be greatly appreciated. We kindly request that you send suggestions for the database, information regarding important cases from any jurisdiction (not necessarily related foreign fighters), and particularly original court documents to the editors: editors@internationalcrimesdatabase.org.

Thank you very much in advance for your assistance in continuing to build a comprehensive and user-friendly ICD together.

The ICD team

The Hague, January 2018

31 results (ordered by date)

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R. v. Hamdan: Regina v. Othman Ayed Hamdan

Oral Reasons for Judgment, 22 Sep 2017, Supreme Court of British Columbia, Canada, Canada

Palestinian refugee Othman Ayed Hamdan was charged after posting on various Facebook accounts and pages regarding Middle East politics, particularly supporting ISIS presence in Iraq and Syria. He believed he was carrying out jihad, meaning struggle. The charges arose from 85 posts from Facebook accounts and pages. To prove the elements of the crime, the Crown had to prove two things: 1) that posts were likely to incite a reader to commit a terrorist act and 2) that Hamdan intended to incite his audience.

The Court determined that a reasonable person would find only one of the posts to be an active inducement to commit a terrorist act; however, the court also determined that the Crown could not prove Hamdan intended to induce a reader beyond a reasonable doubt. While the Court did not find Hamdan’s testimony on his intent credible, the court acquitted him because there was reasonable doubt.


R. c. Habib, 2017 QCCQ 6948

Jugement sur la culpabilité (Judgment on guilt), 19 Jun 2017, Criminal and penal division, Court of Quebec, Canada

On 19 June 2017, Canadian citizen Ismaël Habib was the first adult found guilty of attempting to leave Canada to participate in the activities of a terrorist group. Mr. Habib had already travelled to Syria in 2013 for three months, but he was arrested and brought back to Canada as his passport had been cancelled by the Canadian authorities. Following initial suspicions, the Canadian police created an elaborate undercover operation by establishing a fictitious criminal organisation in which Mr. Habib was working. The accused was arrested in February 2016 after he confessed to a police undercover officer that he wished to leave for Syria to fight with ISIS. Even though the accused conceded that he had the primary intent of leaving Canada, there was a dispute on his reasons for doing so. While Mr. Habib argued that he wished to join his first wife and children in Syria, the prosecution contended that the defendant’s intent was to join ISIS and participate in its terrorist activities.


United States of America v. Arafat Nagi

, 23 May 2017, United States District Court for the Western District of New York, United States, United States

Arafat Nagi is an American citizen who resided in Lackawanna, New York, prior to his arrest. From 2012-2014, Nagi demonstrated support and sympathy for ISIL and the situation in Syria through social media, electronic communications with family members, and conversations with other associated individuals. He also purchased combat gear. During this time, he travelled to Turkey twice, which the U.S. alleged was with the goal of ultimately traveling to Syria to join ISIL as a fighter. While Nagi claimed he was visiting family, his iPad search history and travel plans indicated otherwise.

 

The U.S. arrested and detained Nagi soon after his return from Turkey and Yemen in 2014 and charged him with attempt to provide material support to ISIL.

 

Nagi argued the case should be dismissed because he was protected by the First Amendment. However, the district court held that the defendant’s attempt to join a foreign terrorist organization amounted to actions not protected by the First Amendment, which does protect advocacy or association with terrorist organizations. The district court found Nagi’s travel, communications, and purchase of combat gear sufficient to demonstrate an intent to provide support – in the form of himself – to ISIL. 


United States of America v. Adam Shafi

Order Denying Motion to Dismiss, 3 May 2017, United States District Court for the Northern District of California, United States

Adam Shafi, an American citizen, was arrested for attempting to join a foreign terrorist organization in Syria. Shafi first disappeared while on a family trip to Cairo, Egypt. During this disappearance, Shafi travelled to Turkey. After returning to the United States with his family, Shafi researched ways to get to Syria through Turkey.

He also was observed leading his younger brothers in “paramilitary style” trainings and was overheard on telephone calls making statements about dying for a terrorist organization and condemning America as the enemy.

On 30 June 2015, Shafi purchased a one-way ticket to Turkey but was detained and interviewed before he was able to board the plane. Although Shafi consistently denied that he was trying to join a foreign terrorist organization, he was later heard saying that only an idiot would answer affirmatively to the federal agents’ questions.

Shafi was indicted on grounds of attempting to provide material support to a foreign terrorist organization.  In response, Shafi moved to dismiss the indictment, claiming that the U.S. failed to state an essential element in the indictment, the definition of “personnel.” The trial court denied Shafi’s motion to dismiss, stating the definition of “personnel” was not essential in the indictment.


Mohamed: R v. Mohamed

Sentencing Decision, 29 Sep 2016, Supreme Court of Victoria, Australia

On 29 September 2016, Amin Mohamed was sentenced by an Australian court to 5,5 years’ imprisonment for attempting to travel to Syria and fight there. Mr. Mohamed, a New Zealander, was convicted by a jury in October 2016 for booking flights to Turkey, and receiving the contact details of a man who would assist him (and others) getting from Turkey to Syria with the intention of fighting in the ongoing armed conflict there. In this venture, Mr. Mohamed had been assisted by Hamdi Alqudsi, another man convicted earlier in 2016 for assisting seven would-be foreign fighters with travel to Syria. Mr. Mohamed was prevented from undertaking this travel in September 2013 due to the revocation of his passport and will likely face deportation to New Zealand at the end of his imprisonment.


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