***
Introduction
In March 2016, the Danish foreign minister, Kristian Jensen, informed the US secretary of State, John Kerry, that the Danish Parliament would soon vote to increase its participation in the American-led coalition in Iraq, making one of the highest per-capita contributions to the military campaign in Syria. Jensen said: “What we learned is that Daesh [another name for Islamic State] does not care about borders. They just move the troops around. If we want to push them back, if we want to defeat Daesh, we need to fight them wherever they are.”Footnote 1 A number of European States are today involved in armed conflicts in Iraq and Syria, parallel with the participation of their own citizens as members of organized armed groups.Footnote 2 Since the outbreak of the Syrian armed conflict in 2012, many European States have experienced a rise in the number of citizens and residents that travel across borders to take part in an armed conflictFootnote 3 – so-called “foreign fighters”.Footnote 4 According to the Danish Security and Intelligence Service, since the summer of 2012 at least 150 people have left Denmark to travel to Syria and Iraq, and some still remain in the conflict zone.Footnote 5 A majority of the Danish foreign fighters have joined the armed group known as Islamic State (IS),Footnote 6 while only a small number, including Kurds and Shiites, have gone to the conflict zone in Syria and Iraq to fight militant Islamist groups or other armed opposition groups.Footnote 7
This article considers which legal regimes apply in cases where a Danish citizen and/or resident returns from Syria or Iraq after having taken part in the armed conflict on behalf of IS, and continues his/her affiliation with the armed group. First, a short factual overview of the conflict in Syria and the Danish contribution to the American-led coalition will be provided. This will serve as a basis for further assessment and evaluation of the applicable law. It will then be examined whether international humanitarian law (IHL) applies to Danish territory, considering, in particular, whether IHL is limited to the territory of the State in which the armed conflict originated or if it may also be applied outside its borders, extraterritorially in the territory of an intervening State. Attention then turns to the question of whether and to what extent a foreign fighter can be considered as taking a direct part in hostilities after having returned to the State in which s/he is a citizen and/or resident. The personal scope of application of IHL is seen in light of the geographical disjunction between the location of the foreign fighter and the primary battlefields. The second part of the paper considers the relationship between IHL and the law enforcement regime. This includes an analysis of Danish national laws and their application to persons who take part in an armed conflict.
The fight against IS on the territory of Syria and Iraq
In July 2012, the International Committee of the Red Cross (ICRC) concluded that there was “a non-international (internal) armed conflict occurring in Syria opposing Government Forces and a number of organised armed opposition groups operating in several parts of the country”.Footnote 8 The conflict has now entered its eighth year, and with numerous armed groups and militias still active in the hostilities,Footnote 9 of which many are supported by different alliances of States, the situation is fluid and characterized by a shifting pattern of alliances, cooperation and clashes between the various groups. In September 2014 an American-led coalition launched air strikes inside Syria in an effort to “degrade and ultimately destroy” IS.Footnote 10 Iraq explicitly requested assistance in the conflict following the formalities of declaring an armed attack on its territory and invoking Article 51 of the United Nations (UN) Charter.Footnote 11 The Iraqi government has been supported on its territory by several intervening States in the non-international armed conflict against IS.Footnote 12
The current conflict in Iraq between the American-led coalition and IS has “spilled over” into the territory of Syria, from which non-State armed groups are operating. The analysis of this article is limited to the situation of armed conflict between the American-led coalition and IS.
A non-international armed conflict exists when there is “a resort to armed force between States or protracted armed violence” between governmental authorities and organized armed groups, or between armed groups within a State.Footnote 13 The armed confrontation must reach a minimum level of intensity, and the parties involved in the conflict must show a minimum level of organization. Non-international armed conflicts are governed by Article 3 common to the four Geneva Conventions of 1949, the Second Additional Protocol (AP II) of 1977 (ratified by 168 States), and applicable customary law. If a situation of violence reaches the minimum level of intensity, and a group is considered organized, in accordance with the criteria laid out by the International Criminal Tribunal for the former Yugoslavia (ICTY),Footnote 14 that group becomes a party to an armed conflict. The terms “terrorist group”,Footnote 15 “non-State armed group” and “non-State party to the armed conflict” are not mutually exclusive. The application of IHL does not depend on the armed group's conformity with the law, but rather on its organization and ability to uphold the law.Footnote 16 An armed group may continuously and consistently violate the rules of IHL and still be considered a party to an armed conflict. No rules under IHL preclude non-State armed groups listed as terrorists at an international, regional or domestic level from being considered a party to an armed conflict within the meaning of IHL. Only if considered a party to an armed conflict can the State lawfully use force against the armed group, outside the law enforcement regime.
Before going into discussions of the application of IHL to Denmark, it has to be determined whether Denmark is a party to the armed conflict against IS in Syria and Iraq.
IHL binds the parties to an armed conflict in the conduct of hostilities and the protection of the victims of war. Conduct of hostilities in the course of an armed conflict must inevitably make the responsible State a party to the conflict. However, when a third State intervenes in a pre-existing armed conflict in support of the territorial State, the scale and form of support may vary and may not necessarily include participation in hostilities. Many of the members of the American-led coalition against IS only provide training, counselling and other material and financial support to the Iraqi forces, including the Peshmerga forces in the north; others, such as the UK, Belgium, France and, up until recently, the Netherlands and Denmark, have in addition carried out air strikes against IS on Iraqi and Syrian territory.Footnote 17 Various types of States’ involvement raise the question of whether coalition members are bound by IHL based on a declaration of participation only, or if de facto participation in the hostilities is a prerequisite for the application of IHL.
By invoking Article 19(2) of the Danish Constitution,Footnote 18 the Danish Parliament in September 2014 decided to take part in the American-led coalition in Iraq and Syria.Footnote 19 Denmark's military contribution to the coalition's fight against IS consists among other things of a capacity-building contribution, including a total number of 180 soldiers.Footnote 20 The capacity-building force contribution counsels and trains Iraqi forces on Al Asad Airbase.Footnote 21 In addition, Denmark supports the coalition with a radar contribution that provides airspace surveillance in support of the coalition's air operations.Footnote 22 In August 2016, a force contribution comprising special operations forces was deployed in a training, counselling and support role in Iraq.Footnote 23 On 16 January 2018, a broad majority in the Danish Parliament approved the future deployment of a C-130J transport aircraft contribution. In addition, an emergency medical team will be deployed to the medical element already included in the capacity-building contribution.Footnote 24 Finally, Denmark also provided a combat contribution of F-16 fighter aircraft in 2014–16.Footnote 25
There is no binding procedure in Danish law for determining when Denmark is engaged in an armed conflict, and IHL includes very few guiding principles for determining when a State becomes party to a non-international armed conflict through support of another party to the conflict. Two main approaches can be identified in international law.
First, though only applicable in international armed conflicts, laws on neutrality may indicate when a State's actions in a pre-existing armed conflict reach a form and scale which make that State a party to the armed conflict. Laws on neutrality prescribe protection and obligations on those States that do not take part in the armed conflict. Neutrality is defined by Lauterpacht as “the attitude of impartiality”Footnote 26 – any assistance to one of the belligerent parties will violate the neutrality of the State.Footnote 27 However, according to Lauterpacht, “a mere violation does not ipso facto bring neutrality to end”.Footnote 28 He distinguishes between “hostilities” understood as acts of war and “mere violations of neutrality”, and concludes that only conduct of hostilities, either by or against the neutral State, will bring the neutrality to end.Footnote 29 Michael Bothe concludes in Dieter Fleck's Handbook of International Law that “only where a hitherto neutral state participates to a significant extent in hostilities is there a change of status”.Footnote 30
Tristan Ferraro argues for a support-based approach, where the status of multinational forces as participants in a pre-existing non-international armed conflict depends on the nature of their involvement: “support that would have a direct impact on the opposing party's ability to conduct hostilities” assumes participation, while “more indirect forms of support which would allow the beneficiary only to build up its military capabilities” do not.Footnote 31
According to Ferraro's approach, it seems that training of the Iraqi armed forces and other general support at the coalition's headquarters would not make a State a party to an armed conflict, while the deployment of F-16 fighter jets, the deployment of the Danish Special Forces and operating the mobile radar at Al Asad Airbase would. Based on the Danish contribution to the coalition and for the purposes of further analysis, it is assumed that Denmark currently continues to be a party to the armed conflict against IS.
Does IHL apply to Danish territory?
Concluding that Denmark currently continues to be a party to the armed conflict with IS in Iraq and Syria, it must further be considered whether IHL applies to Danish territory.
The geographical scope of armed conflicts has not been clearly regulated in the Geneva Conventions and must be determined on the basis of an analysis of each provision. As regards international armed conflicts, it is generally accepted that IHL applies in the whole territory of those States that are party to the armed conflict.Footnote 32
When it comes to non-international armed conflicts, the applicability of common Article 3 is not contested and has been raised in a number of cases by the international tribunals.Footnote 33 Though there are some textual inconsistencies between the formulations of the court rulings, they all apply a broad interpretation of the geographical scope of application of IHL to the territory of parties to the conflict. IHL applies independently of the concept of hostilities and extends throughout the geographical borders of the territorial State.Footnote 34 These cases, however, only consider the reach of IHL within the territorial State, while contemporary conflicts require us to consider whether IHL is limited to the territory of the State in which the armed conflict originated or if it may also be applied outside its borders, extraterritorially in the territory of an intervening State.Footnote 35
While AP II applies to conflicts that “take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”Footnote 36 (author's emphasis), common Article 3 applies to non-international armed conflicts “occurring in the territory of one of the High Contracting Parties”. Thus, common Article 3 applies to any non-international armed conflict as long as there is a territorial link to one of the High Contracting Parties.Footnote 37 This reading is supported by the drafting history of the Geneva Conventions and has been adopted by several legal scholars.Footnote 38 The material field of application of AP II does not leave the same room for interpretation. This is underlined by the additional requirement of an armed group exercising control over part of the State's territory. AP II “develops” and “supplements” common Article 3 “without modifying its existing conditions of application”.Footnote 39 Interpreting common Article 3 restrictively in accordance with Article 1 of AP II would thus run counter to the object and aim of the Geneva Conventions and common Article 3.Footnote 40
State practice after the Second World War confirms the application of common Article 3 to conflicts which have spilled over into the territory of a neighbouring State.Footnote 41 Common Article 3 has, for example, been applied in the conflict between Colombia and the Revolutionary Armed Forces of Colombia on Ecuadorian territory,Footnote 42 and in the Rwandan armed conflict on the territory of the Democratic Republic of the Congo.Footnote 43
When defining the geographical scope of IHL beyond the immediate sphere of hostilities, the ICTY, in the Tadić case, applied a nexus test. Reasoning that since the beneficiaries of common Article 3 are those taking no active part (or no longer taking active part) in hostilities and similarly that AP II applies “to all persons affected by an armed conflict”, the Tribunal argued that the application should be based on a potentially hostile or belligerent relation rather than on the exact location of the hostilities.Footnote 44 IHL may thus be applied where there is a direct link between the hostilities and the armed conflict. The application of a nexus test has generally been accepted in a traditional non-international armed conflict.Footnote 45
Where the conflict has spread to States other than neighbouring States, the application is more controversial. However, whereas the application of common Article 3 to hostilities taking place in third States not party to the conflict has gained little support in legal writings (with a few exceptions),Footnote 46 the application of common Article 3 to multinational conflicts in the territory of the “intervening States” seems to have received more acceptance among legal scholars.Footnote 47 Contrary to applying IHL in a third, non-belligerent State, the applicability of IHL in an intervening State rests not just on the status of the person as a participant in the conflict, but also on the presumption that IHL is equally applicable in the territory of all States party to the conflict.Footnote 48
Accepting that IHL is applicable in the whole territory of the State in which hostilities take place and arguing that a conflict remains non-international when several States take part in the hostilities extraterritorially in their fight against a non-State armed group, it also has to be accepted that the application of IHL does not depend on a continuous local level of violence and that common Article 3 is equally applicable in the territory of all parties to the conflict. Any other reasoning would enable intervening States to evade the operation of the principle of equality of belligerents under IHL once they have become party to an armed conflict beyond their borders, contrary to the aim of laying down the same rights and obligations for all parties to a conflict.Footnote 49
With the above reasoning, it can be concluded that IHL also applies to Danish territory given that Denmark is a party to an armed conflict against IS.
Can a foreign fighter lose protection from attack after having returned to Denmark?
Assuming that IHL applies to Danish territory, the next question that can be asked is whether and to what extent a returned foreign fighter will lose his/her protection from attack while supporting IS in its fight against Denmark and the international coalition in Iraq and Syria.
Should a foreign fighter choose to return to Denmark while still being affiliated with IS, at least three groups of questions arise regarding direct participation in hostilities. First, when can an act be said to have been carried out on behalf of an armed group party to the conflict? Does it suffice that the armed group takes responsibility for the harm caused by the act, or does a link between the perpetrator and the armed group have to be identified in order to establish a belligerent nexus? Can the person be considered a “member” of the group in some way? What if the person claims links to the armed group, but these are not confirmed by the armed group? Second, does distance from the battlefield weaken the belligerent nexus between the person carrying out the act and the armed group? And third, for how long will a participant in the hostilities lose his/her protection against attack? Does it make any difference whether the person returned to Denmark specifically with the intention or instruction to commit an attack or only decided to do it once he/she returned?
When it comes to the conduct of hostilities, the principle of distinction protects those who do not take direct part in hostilities from being the target of an attack.Footnote 50 The notion of direct participation in hostilities determines when persons who are not members of armed forces of the party to the conflict may be subject to the use of force. In 2009 the ICRC issued its Interpretive Guidance on the Notion of Direct Participation in Hostilities (ICRC Interpretive Guidance),Footnote 51 according to which each specific act by a civilian must meet three cumulative requirements to constitute direct participation in hostilities:
1. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict[Footnote 52] or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and
2. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and
3. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).Footnote 53
The majority of experts discussing the drafting of the ICRC Interpretative Guidance agreed that the requirement of a belligerent nexus should be based on the objective purpose of the act, rather than on the desire of the person to carry out the act. An act must have been “specifically designed to support one party to the conflict by directly causing the required threshold of harm to another party”.Footnote 54 Persons with no affiliation or with only a loose affiliation with a party to an armed conflict may thus be considered as taking a direct part in hostilities if the act nevertheless constitutes an integral part of the hostilities that is “specifically designed to support one party to the conflict”.Footnote 55 Should a party to an armed conflict claim responsibility for an attack, however, it will be difficult to determine whether the act was in fact “specifically designed” to support that party if there are no obvious links between the person carrying out the act and the party to the conflict.Footnote 56
Distance from the area of active hostilities may make it more difficult to determine when an act was carried out as an integral part of the hostilities of an armed conflict. However, since IHL applies in the territory of all the parties to an armed conflict, the notion of direct participation in hostilities is not geographically bound to the primary sphere of hostilities. This does not mean that a person directly participating in hostilities can carry the conflict with him/her, but rather that conduct amounting to direct participation in hostilities is regulated by IHL in areas in which the legal regime is applicable, including the territory of an intervening State, as discussed above. The physical placement of the person is no longer of importance to the application of IHL because due to advancements in technology, military operations nowadays can be conducted from, on, or with effects that occur in the entire territory of the parties to the conflict.Footnote 57
A foreign fighter who, for example, travels to Denmark directly from an IS training camp with the intention of carrying out, or instruction to carry out, a specific attack, likely to adversely affect the military operations or military capacity of Denmark or to inflict death, injury or destruction on protected persons or objects, will continue to take a direct part in hostilities. According to the ICRC Interpretive Guidance, “[m]easures preparatory to the execution of a specific act of direct participation in hostilities, as well as the deployment to and the return from the location of its execution, constitute an integral part of that act”.Footnote 58 However, it seems that once there is a longer period of time between the departure from Syria and the manifestation of the attack in Denmark, or this period is prolonged by further planning in Denmark, loss of protection from attack will depend on the State's understanding of the temporal scope of the notion of direct participation in hostilities.
Deciding when an individual will regain protection has been the cause of much controversy and has not been settled in State practice. The ICRC Interpretive Guidance considers that individuals whose involvement in hostilities is spontaneous, sporadic or temporary will only lose protection “unless and for such time as” they are taking direct part in hostilities.Footnote 59 A number of States have, however, expressed a broader understanding of the temporal scope of the loss of protection from attack.Footnote 60
For members of the armed forces of a party to the armed conflict, in contrast to civilians, there is no issue of temporality. The ICRC Interpretive Guidance considers that fighters who maintain a continuous combat function are not civilians, meaning that “members of organized armed groups belonging to a non-State party to the conflict cease to be civilians for as long as they remain members by virtue of their continuous combat function”.Footnote 61 The Danish Military Manual implements the notion of continuous combat function in a similar way to that introduced in the Interpretive Guidance, with the understanding that persons who have lost their protection as continuous participants in the activities of an armed group will only regain protection if they actively demonstrate that they have withdrawn from the armed group.Footnote 62 The manual explains that this can, for example, be done by laying down one's weapons or by expressly renouncing one's membership and dissociating oneself from the armed group.Footnote 63
Though IHL applies to Danish territory, and while a foreign fighter who does not uphold a continuous combat function after having returned can, in theory, continue to take a direct part in hostilities in Denmark, given the nature of the situation in Syria and Iraq and the geographical disjunction between the location of the foreign fighter and the primary battlefields, it will be difficult to determine when the objective purpose of an attack is to inflict harm in support of a party to an armed conflict.
The relationship between IHL and the law enforcement regime
Concluding that IHL applies to Danish territory and that a returned foreign fighter may be considered as taking a direct part in hostilities on Danish territory, it is necessary to examine how IHL interacts with the law enforcement regime.
International human rights law
In armed conflict the use of force is governed by the conduct of hostilities paradigm, while international human rights law continues to apply at the same time.Footnote 64
The right to life applies without any territorial restrictions: all StatesFootnote 65 are bound by a negative obligation not to arbitrarily deprive someone of their life.Footnote 66 Denmark has ratified the European Convention of Human Rights (ECHR), and a Danish foreign fighter will be subject to the protections under the Convention while on Danish territory.
The rules governing the use of force in IHL and in human rights law are based on different assumptions. Under IHL, military necessity is presumed where force is used against legitimate targets. Thus, the assessment of necessity depends on the qualification of a person/object as a legitimate target. By applying the principle of proportionality in IHL, however, an attack against a legitimate target is considered unlawful if it “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.Footnote 67 In contrast, under human rights law the principles of absolute necessity and proportionality also protect members of the armed forces, and the use of force can only be undertaken exceptionally in order to maintain public security. The principle of proportionality in human rights law requires a balance between the risks posed by the individual and the potential harm to that individual, as well as to bystanders. Only if the person poses an imminent threat of death or serious injury, and this threat cannot be prevented through lesser means, will the use of lethal force be lawful.Footnote 68
Contrary to case law of the International Court of JusticeFootnote 69 and the Inter-American Commission on Human Rights,Footnote 70 the European Court of Human Rights (ECtHR) has resolved cases on the use of force in armed conflict based exclusively on human rights law.Footnote 71 The ECtHR has analyzed the right to life in a number of cases involving conduct of hostilities. In some cases where the victims were alleged terrorists, the Court applied the whole catalogue of human rights safeguards for the right to life, including the necessity to avoid force, to use weapons which will avoid lethal injuries and to give warning.Footnote 72 In cases concerning security operations against Kurdish rebels in Turkey and Chechen rebels in Russia, however, the ECtHR has used language that is much closer to IHL than to human rights law.Footnote 73
In an analysis of human rights jurisprudence, Cordula Droege finds that the case law of the ECtHR can be broadly distinguished in two kinds of situations: on the one hand, “situations like McCann, Gül, Ogur or Kaplan, in which individual members of armed groups or alleged members of such groups are killed and insufficient precautions are taken to avoid the use of lethal force altogether, including against those persons”; and on the other, “situations like Ergi, Özkan or Isayeva, Yusupova and Bazayeva and Isayeva, in which the government forces are engaged in military counterinsurgency operations or fully fledged combat against an armed group”.Footnote 74
Droege concludes that the ECtHR appears to use standards that are inspired by IHL and points out that the Court applies the criterion of whether incidental civilian loss was avoided to the greatest extent possible: “[The Court] does not question the right of government forces to attack opposition forces, or require that lethal force be avoided even in the absence of an immediate threat.”Footnote 75 She finds, however, that the Court
appears to go a little further than traditional humanitarian law, in particular when it requires that the local population be warned of the probable arrival of rebels in their village, or that the fire from the opposition group which could endanger the villagers’ lives be taken into account.Footnote 76
The use of force against armed opposition groups during hostilities has so far not been considered a breach of Article 2 of the ECHR, and collateral damage is seen in light of the military advantage anticipated by the State. The understanding of when a person is taking part in an armed conflict, however, is not necessarily similar to that under IHL. It seems that the ECtHR restricts the notion of direct participation in hostilities to situations in which the person is militarily engaged, excluding any preparatory acts and limiting the time frame for when a person can be said to be taking part in the conflict.Footnote 77
Accordingly, one approach which (it seems) has been embraced by the ECtHR serves to restrict the use of lethal force by applying norms according to the existence of “hostilities”, in which there is a high intensity of violence and lack of control over the area and over the circumstances, and where the person is “militarily engaged”. Applied to the scenario laid out above, a returned foreign fighter could be considered to be directly participating in hostilities, and thus lose protection from attack, if the situation is such that the Danish authorities lack control over an area which is at the same time dominated by a high intensity of violence.
Danish criminal law
By virtue of participating in a non-international armed conflict, foreign fighters are subject to domestic prosecution. Combatant immunity exists only in the context of international armed conflicts.Footnote 78 In the context of a non-international armed conflict, IHL makes no reference to combatants or prisoners of war, nor does it attach any other formal status to members of armed groups. Governments may choose to prosecute individuals under national law independently of whether or not the accused have complied with IHL.Footnote 79 A wide range of conduct normally committed in times of armed conflict is already criminalized by most domestic legal systems, and States are free to enforce their domestic regulations at times of non-international armed conflict.
Mere participation in hostilities does not violate IHL and would therefore not be subject to prosecution in the international courts, should they have jurisdiction. Participation in an armed conflict may, however, be subject to criminal prosecution under domestic law.
The Danish policy on countering foreign fighters includes a combination of coercive and preventive measures. In addition to initiating a number of de-radicalization programmes, such as the De-radicalization Targeted Intervention launched by the municipality of Aarhus in 2007 and the 2011 Back on Track programme aimed at tackling radicalization in prisons, the Danish Parliament has made changes to existing rules on revoking passports and residency permits. The risk that a person may take part in “activities” outside Denmark which “could involve or enhance an existing risk against the Danish State and society, or against other States and their societies”, allows for the revocation of passports and residency permits.Footnote 80 The new laws also allow the authorities to issue travel bans.Footnote 81
Among the punitive measures adopted in light of the foreign fighters phenomenon, the Danish Parliament adopted a new law on treason in 2016, making it illegal for Danish citizens and residents to be affiliated with the armed forces of a party to an armed conflict to which Denmark is also a party.Footnote 82 While the law only applies to persons who are affiliated with the military wing of the party to the conflict, it is not required that the person in question takes part in hostilities, and conduct of hostilities is considered an aggravating circumstance. “Affiliation” does not refer to direct participation in hostilities or participation in other support functions outside the conduct of hostilities.Footnote 83 Article 101a of the Danish Criminal Code criminalizes mere entry into the armed forces rather than any specific conduct.Footnote 84
The implementation of UN Security Council Resolution 2178 on “Foreign Terrorist Fighters” in Danish law did not result in changes of the Danish Criminal Code, nor has a general ban on participation in armed conflict been adopted, as was, for example, introduced in Norwegian law.Footnote 85 The Danish Ministry of Justice concluded in a parliamentary report of 2016 that travelling with the purpose of committing terrorism, as well as “participation in an armed conflict”, is already covered by the broad scope of the Danish counterterrorism regulation.Footnote 86 In 2017, new laws on training for terrorism, participation in a “terrorist organization” and so-called “no-go zones” have been introduced in the Danish counterterrorism legislation.Footnote 87
Danish counterterrorism legislation is regulated by Articles 114–114(a–e) in the Danish Criminal Code. Articles 114–114(a) regulate terrorism acts, while different support acts are regulated in articles 114(b–e), including the financing of terrorism, recruitment for terrorism, training for terrorism and participation in a terrorist organization.
Danish counterterrorism laws implement, inter alia, EU Framework Decision 2002/475/JHA,Footnote 88 the UN International Convention for the Suppression of Terrorist Bombings (Terrorist Bombings Convention),Footnote 89 the UN International Convention for the Suppression of the Financing of Terrorism,Footnote 90 and the Council of Europe Convention on the Prevention of Terrorism, all of which include a clause restricting the scope of application in times of armed conflict.Footnote 91 The restriction of the scope of application was confirmed in Parliament during the implementation process of EU Framework Decision 2002/475/JHA into Danish law.Footnote 92
The wording of the scope-of-application restriction, which in essence is repeated in all of the aforementioned conventions, was first introduced in Article 19(2) of the Terrorist Bombings Convention:
The activities of armed forces during an armed conflict, as those terms are understood under IHL, which are governed by that law, are not governed by this Convention, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.
Accordingly, Article 19(2) exempts from the scope of the Convention activities of armed forces during armed conflict, and activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law. Article 19(2) does not define “armed forces” or “armed conflict”, but refers to how they are understood under IHL. Recordings of the negotiations of the article indicate disagreement among the negotiating parties as to its scope, and the final wording was only introduced in the final hours by the representatives of the United States, who were looking to protect the right of peoples to self-determination.Footnote 93 Until then, the draft Convention had included only an exception of activities carried out by State military forces in the performance of their official duties. Several States advocated to ensure the right to self-determination,Footnote 94 but only the US proposal left the understanding of “armed forces” to be determined by IHL.
Under IHL the term “armed forces” refers to the armed forces of both State and non-State parties to the armed conflict. This view is shared by a number of legal scholarsFootnote 95 and has also been adopted in domestic case law concerning foreign fighters.Footnote 96 The ICRC concluded in its 2016 Commentary on common Article 3 that “in the context of common Article 3, the term ‘armed forces’ refers to the armed forces of both the State and non-State Parties to the conflict”.Footnote 97 Therefore, by allowing the understanding of “armed forces” to comply with existing international law, it was ensured that non-State actors remain within the understanding of armed forces for the purposes of the Terrorist Bombings Convention.
In light of the above, Danish counterterrorism legislation would not apply to activities committed by members of armed forces in an armed conflict. A returned foreign fighter may be considered a member of an armed force of a non-State armed group and can be considered to be participating in hostilities even after having returned to Denmark, as discussed previously. Conduct of hostilities is not regulated by the national counterterrorism legislation, however. This restriction in the scope of application ensures a distinction between those who are taking part in an armed conflict and those whose actions are not connected to the hostilities of an armed conflict.
Deliberate attacks on civilians are always illegal under international law. IHL includes an absolute ban on terrorism in Article 51(2) of Additional Protocol I and Article 13(2) of AP II. The definition of terrorism under IHL is, however, restricted in accordance with the principle of distinction, prohibiting only deliberate attacks on civilians.Footnote 98 The Statute of the International Criminal Court does not include a crime of terrorism, but deliberate attacks on civilians are criminalized as war crimes. The Danish Criminal Code does not include specific provisions on war crimes, and violations of the Geneva Conventions and customary international law are punishable only in accordance with the regular crimes of the Danish Criminal Code.Footnote 99
Contrary to the acts prohibited under counterterrorism laws, war crimes can only be committed in armed conflict. The difference between the Danish counterterrorism laws and the regular crimes of the Danish Criminal Code lies mainly in their protective scope of application: the counterterrorism laws are in general much broader in their scope of protection, criminalizing conduct which would normally not be covered by rules on attempt and aiding and abetting.
Attempting to commit a crime under Danish law is criminalized primarily according to the intention of the perpetrator. According to section 21 of the Danish Criminal Code, “acts that are aimed to promote or accomplish an offence shall when the offence is not completed be punished as an attempt”.Footnote 100 Conspiracy, financing of crimes, preparation of a crime (including travelling to the place where the crime is intended to be committed), offences relating to organizations whose main activities are criminal, etc., are criminalized as attempts under Danish law. Conduct that is not covered by the scope of the regular crimes of the Criminal Code, but is criminalized as terrorism, will presumably not include acts of participation in hostilities and will thus be subject to counterterrorism laws, even if committed during armed conflict. This author submits that conduct which indirectly harms the party to the conflict or creates room for harm at a later stage will not reach the requirement of direct causation under the notion of direct participation in hostilities.Footnote 101 Examples of such conduct could be collecting information about Danish infrastructure or receiving training in conduct of hostilities, which will constitute direct participation in hostilities only if the information is used in the preparation of a specific attack or the person receiving the training is specifically recruited and trained for the execution of a predetermined hostile act. A Danish IS fighter who returns to Denmark and gets a job with the intention of financially supporting an armed group in Syria or Iraq likewise cannot be considered to be taking a direct part in the hostilities. Such acts could therefore be prosecuted under domestic counterterrorism laws.
Further, persons who are not sufficiently affiliated with a party to an armed conflict are not members of an armed force according to IHL and will therefore be subject to Danish counterterrorism laws. Persons, who, on the other hand, are considered members of the armed forces of a party to an armed conflict, and are therefore exempted from the counterterrorism laws, may be prosecuted for treason.
Those whose involvement in the hostilities is spontaneous, sporadic or temporary will lose protection from attack and may at the same time be prosecuted for both treason and terrorism, for otherwise lawful acts of war under IHL, as they cannot be considered members of the armed forces of a party to an armed conflict. An attack reaching the threshold of harm likely to adversely affect the military operations or military capacity of a party to an armed conflict will, in addition, be in breach of regular crimes of the Criminal Code, even if the attack does not constitute a war crime and the person carrying out the attack is a member of the armed forces of a party to an armed conflict.Footnote 102
Thus, though Danish counterterrorism laws do not apply to the conduct of hostilities, when a foreign fighter continues to take a direct part in hostilities or upholds the status of a continuous combat function after having returned to Denmark, domestic criminal laws would apply in most cases of returned foreign fighters acting on behalf of IS against Danish citizens or interests.
Conclusion
This article has attempted to point to some of the questions which arise regarding the application of different legal regimes, should a foreign fighter return to the State in which s/he is a citizen and/or resident and continue to take a direct part in hostilities or retain a continuous combat function. The fact that the State is a party to an armed conflict taking place on the territory of another State, parallel with the participation of its own citizens, dissolves the concept of an actual “battlefield” as it has traditionally been understood and creates new issues concerning a situation which is very scarcely regulated. While there are currently no active hostilities taking place in Denmark, and the appropriate legal framework to apply is the law enforcement regime, membership in the armed forces of a party to an armed conflict and even affiliation with an armed group may influence the legal assessment in the criminal prosecution, subsequent to an attack or other conduct committed with a nexus to the armed conflict in Iraq and Syria.
