COMPREHENSIVE CRIMINAL RESPONSIBILITY: THE BENEFITS OF CUMULATIVELY PROSECUTING FOREIGN TERRORIST FIGHTERS.

• Author: Jackson, Kendall

1. INTRODUCTION

   The prospective return of foreign terrorist fighters has been the source of much discomfort and trepidation to the European Union (EU) and its Member States. (1) Many citizens of European nations have pursued membership with terrorist organizations, as more than 13,000 European citizens were estimated to be affiliated with the Islamic State of Iraq and Syria (ISIS) as of July 2018. (2) Of that number, approximately 2,500 of these foreign terrorist fighters had returned to their home countries within Europe, while around 2,000 remained detained in Syria by the Syrian Democratic Forces (SDF). (3) As foreign terrorist fighters remain in custody throughout Eastern and Western Europe, Syria, and Iraq, national authorities and their respective law enforcements agencies are confronted with alternatives for how the fighters should be prosecuted and held criminally responsible. (4)

   This Note examines how the cumulative prosecution of foreign terrorist fighters in their home countries may result in the most comprehensive adjudication of all committed crimes. (5) Part II of this Note will explore the utilization of cumulative prosecutions in the past, and the EU's interest in reducing the prevalence of core international crimes through prevention and prosecution. (6) Part III will assess the crimes committed by foreign terrorist fighters and the current state of detained fighters in their home countries, Iraq, or Syria. (7) Part IV will analyze each alternative method of prosecution, considering advantages and disadvantages respective to the location of prosecution, suggesting that cumulative prosecutions in the fighters' home countries offer the most just and comprehensive opportunity to adjudicate the crimes of foreign terrorist fighters. (8) Lastly, Part V will highlight the importance of cumulative prosecution and will reiterate that it ensures full criminal responsibility and provides the utmost justice for victims. (9)

2. HISTORY

   1. Origin of Cumulative Charging and Cumulative Prosecution

      Cumulative charging, from which the defendant can be cumulatively prosecuted, refers to the "process 'by which an accused can be charged with a number of different crimes on the same underlying acts, with the charges being expressed cumulatively rather than alternatively.'" (10) Prosecutors often prefer cumulative charging because it places the tribunal in a better position to examine the evidence in its totality. (11) As a result, several international tribunals implemented the use of cumulative prosecution. (12)

      1. The Nuremberg Trials

         The International Military Tribunal at Nuremberg was one of the first bodies to introduce cumulative prosecution following the atrocities committed during World War II. (13) The Nuremberg Trials commenced in November 1945 after "the four major Allied powers [ ] signed the 1945 London Agreement, which established the [International Military Tribunal]" to prosecute German political and military leaders. (14) Of the twenty-two individuals who were brought before the International Military Tribunal, most were cumulatively charged with multiple counts of war crimes, crimes against peace, and crimes against humanity. (15)

      2. International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)

         Both the ICTY and the ICTR adopted an ad hoc approach to cumulative charging and convictions. (16) Each Tribunal frequently supports the use of cumulative charges and convictions for specific crimes, such as wartime sexual violence. (17) Although the ICTY and ICTR favor this method for certain crimes, the ICTY operates with some apprehension to its ad hoc approach to cumulative charging because of its concern for fairness. (18) The Tribunals maintain that cumulative charging is appropriate "when the articles of the Statute are designed to protect different values and when each article requires proof of a legal element not required by the others." (19)

   2. Trying International Crimes

      1. International Criminal Court

         The Rome Statute established the International Criminal Court (ICC) "[a]s a court of last resort" to address the gravest of international crimes. (20) The Rome Statute was adopted by 120 states on July 17, 1998, and was later ratified by sixty states on July 1, 2002. (21) The ICC has jurisdiction over major international crimes including, "genocide, war crimes, crimes against humanity and the crime of aggression." (22) The Rome Statute provides for better victim representation and encourages states to stand up against impunity by punishing perpetrators of serious crimes. (23)

         Consistent with other international criminal tribunals, the ICC can enter multiple charges against a perpetrator based on the same underlying acts. (24) Despite the ICC's broad discretion in charging, the Pre-Trial Chamber of the ICC is less favorable to allow cumulative charging and maintains the authority to dismiss particular charges against defendants. (25) While cumulative charges are still allowed in the ICC, the Pre-Trial Chamber's approach to cumulative charging "is less generous than that of other international criminal tribunals." (26)

      2. European Union Member States

         Regarding national jurisprudence of core international crimes, every EU Member State has ratified the Rome Statute of the ICC. (27) In addition, most Member States have the requisite legislation within their national jurisprudence which permits them to exercise jurisdiction over core international crimes. (28) For example, Germany tried and convicted several German nationals for their involvement with terrorist organizations, and for core international crimes perpetrated as a direct result of their involvement. (29) In addition, The Netherlands, Hungary, and France are among other European nations that prosecuted and convicted foreign fighters for core international crimes and membership in terrorist organizations. (30)

   3. Creation of the Genocide Network

      In 2002, the Council of the European Union established the Genocide Network. (31) The goal in creating the Genocide Network was to foster efficient cooperation between the authorities of EU Member States and the EU when prosecuting core international crimes. (32) Member States are "represented" in network operations by "Contact Points," a group of "specialised and dedicated prosecutors, investigators and officers for mutual legal assistance." (33) The support of the Genocide Network and each Member State's contact points are essential given the complex circumstances of criminal investigations of core international crimes that often cross national borders. (34)

3. FACTS

   1. ISIS and Foreign Terrorist Fighters

      1. The Fall of ISIS

         ISIS and its members committed grave acts of violence during armed conflicts in Iraq and Syria. (35) The group monopolized significant portions of Syria and Iraq, controlling over 100,000 kilometers of land. (36) In the years after a collection of targeted airstrikes in Iraq and Syria, ISIS steadily lost control of the land. (37) Following the liberation of the final territory held by ISIS in 2019, the lingering issue of foreign terrorist fighters returning to their home countries in Europe came to the forefront. (38)

      2. Current State of Foreign Terrorist Fighters

         As ISIS gradually lost its foothold in Iraq and Syria, foreign terrorist fighters chose to return to their home countries, with 1,765 returning to Western Europe and 784 returning to Eastern Europe by June 2018. (39) Despite the exodus of fighters to Eutrol). rope, an estimated 2,000 remain in SDF custody in Syria and an additional 1,000 are detained in Iraq. (40) The large number of fighters in custody presents diverse challenges as detention facilities express they are "under siege." (41) It is expected that those not currently in custody in Syria or Iraq will return to their home countries in Europe where there is significant pressure for local governments to promptly prosecute them upon their return. (42)

   2. Jurisprudence in European Union Member States

      1. Ability to Cumulatively Charge

         More than twenty cases in five countries of the EU demonstrates that Member States have increasingly elected to cumulatively charge foreign terrorist fighters upon their return to the States. (43) This method is generally favored as it increases the prospect of longer sentences, which contributes to the goal of achieving justice for victims. (44) Cumulative charging allows Member States to transition from trying terrorist-related crimes alone to "adjudicat[ing] foreign terrorist fighters cumulatively for terrorism offences and for core international crimes." (45)

         When prosecuting international crimes, a Member State has the ability to "apply the principle of nationality rather than the principle of universal jurisdiction" against their nationals for crimes committed in other countries. (46) If a foreign national is present in a Member State, the State can apply universal jurisdiction. (47) Some EU Member States have national laws that grant them the ability to cumulatively prosecute crimes of terrorism and "core international crimes," while others still maintain the authority to cumulatively prosecute but "differentiate between the crimes." (48)

         Alternatively, some Member States lack the jurisprudence to prosecute foreign terrorist fighters for crimes of terrorism because membership in a terrorist organization is not a criminal offense in those States. (49) Additionally, the difficulty of prosecuting terrorist-related crimes is exacerbated because international law fails to recognize being a foreign terrorist fighter as a crime. (50) In response to this challenge, the United Nations Security Council Resolution (UNSCR) 2178 affords States the authority to legally respond to the danger posed by foreign terrorist fighters. (51) UNSCR 2178 urges Member States to take a multitude of steps to alter their legal systems in order to effectually criminalize the conduct of...