Homeward bound: the European Union's freedom of movement in an age of transnational terrorism.

Author:Kennedy, Lindsay H.
  1. Introduction II. Background A. Foreign Fighters B. The Schengen Agreement and Other European Union Laws C. The European Union's Response to Foreign Fighters 1. Criminal Justice Approach a. Outlawing Travel for Terrorism Purposes 2. Border Security 3. Schengen Information System II III. How Can the European Union Respond to Foreign Fighters? A. European Union-wide Data Gathering B. Schengen Agreement Reform C. Strengthened Counter-Terrorism Legislation 1. Criminal Prosecution under Domestic Law 2. Criminal Prosecution under International Law D. Individual Member States' Non-Criminal Justice Response IV. How Good Are These Options? A. Policy Concerns in Responding to Foreign Fighters 1. Upholding Human Rights a. Concern for Privacy b. Concern for Ethnic Profiling 2. Upholding European Union Goals V. How Should the European Union Respond to the Threat of Foreign Fighters? A. Improvement of Current Programs B. Strengthened Legislation C. Counter-Radicalization and Rehabilitation Programs VI. Conclusion I. Introduction

    An estimated 3,400 to 5,000 European Union (EU) citizens are fighting in Syria and Iraq, (1) while their fellow countrymen live amid fears these fighters will return home with motivations similar to those of French national Mehdi Nemmouche. Mr. Nemmouche became radicalized in a French prison where he was serving a sentence for violent robbery. (2) During his stay in prison, he "distinguished himself by his extremist proselytism," and prison administrators informed French intelligence services upon his release. (3) Nevertheless, the French did not place him under surveillance and, within weeks, Mr. Nemmouche left France bound for Brussels, London, Beirut, Istanbul and, ultimately, Syria where he joined the Islamic State. (4)

    French officials were unaware of Mr. Nemmouche's return from Syria until he landed in Frankfurt, Germany and German officials notified French authorities. (5) In an apparent effort to "cover his tracks" after leaving Syria, Mr. Nemmouche traveled to Istanbul, Malaysia, Singapore, and Hong Kong, before arriving in Frankfurt. (6) Again, French authorities did not act on German intelligence, (7) enabling Mr. Nemmouche to travel to Belgium armed with a Kalashnikov assault rifle and .38 caliber handgun. (8) In what is now known as the Brussels Jewish Museum attack, Mr. Nemmouche, allegedly, (9) opened fire, and killed three museum-goers, while critically wounding a museum volunteer. (10) Mr. Nemmouche was neither identified nor apprehended until six days later when a bus he boarded, traveling a well-known cannabis smuggling route, was stopped during a routine drug search. (11) During this search authorities found weapons and clothing matching the descriptions of those of the attacker, a piece of fabric inscribed with the Islamic State's insignia, and a video in which a man, ostensibly Mr. Nemmouche, describes his responsibility for the killings at the Jewish Museum. (12)

    Since late 2013, European officials have foiled at least eleven different plots in Europe involving people who had previously joined jihadist groups in Syria, (13) and estimates suggest as many as ten percent of European foreign fighters have become security threats after returning home. (14) These foreign fighters returning to Europe present a complex set of challenges for policymakers, which are only magnified by the security loophole created by Europe's border-free travel zone, known as the Schengen area. (15) This paper presents ideas for how the EU can reconcile its increased anxiety over radicalized, battle-hardened fighters returning to Europe with a counter-terrorism policy that respects both human rights and the bloc's commitment to free movement across the Schengen area. Part II describes the current foreign fighter phenomenon, the area of free movement within Europe and other fundamental rights protected in the EU, and how the EU has responded to foreign fighters returning home. Part III presents proposals made by EU policymakers regarding how to improve or change the EU's response to the foreign fighter issue, specifically focused on improving the body's current systems. Part IV addresses the tension the EU faces in developing a strategy to address the foreign fighter phenomenon, such as balancing the need to protect security with upholding fundamental human rights and EU goals. Finally, Part V presents a multi-faceted policy the EU may implement to address the foreign fighter threat and security in this age of transnational terrorism, while maintaining its integrity and value of human rights and civil liberties.

  2. Background

    1. Foreign Fighters

      While the phenomenon of foreign fighters is not new, the current issue of European foreign fighters and returnees is a complex and dynamic one because of the difficulty in tracking them and knowing their intentions. (16) Since the Islamic State declared a caliphate on June 29, 2014, recruitment of foreigners has surged, bringing in fighters at a faster rate than any previous Jihadist conflict, including the Soviet-Afghan war in the 1980s and Iraq after the American invasion in 2003. (16) The seemingly uninterrupted flow of Europeans traveling through the Schengen area to Turkey and into Syria has presented a unique and difficult challenge for European policymakers. (18) While families are worried about their youths being harmed abroad, authorities are concerned about the potential security threat foreign fighter returnees could pose to themselves and others. (19)

      The exact number of European fighters in Syria and Iraq is unknown. Estimates are based on information gathered from social media, community sources, or investigations, and these numbers tend to underestimate the true number of persons traveling abroad to engage in jihad because many wish to conceal their identities or keep their activities secret. (20) In April 2014, Gilies de Kerchove, the Counter-Terrorism Coordinator for the EU (CTC), estimated that over 2,000 had gone to Syria from the twenty-eight member states of the EU, up from just 500 one year earlier. (21) Reports from 2015 estimate 20,000 foreign militants are fighting in Syria and Iraq, including at least 3,400 Europeans, (22) however, high estimates suggest up to 5,000 foreign fighters in these two countries are EU citizens. (23) France, Britain, Belgium, and Germany have the largest numbers of citizens in the fight, (24) while Belgium has the highest number of per capita foreign fighters in Europe with 350 out of a population of 11 million. (25)

      A major problem area in the flow of European foreign fighters is the long, porous border between Turkey and Syria. (26) Turkey maintains it has closed most of its official border crossing points, though it is doubtful that militants would have used established border crossings anyway. (27) Turkey claims in 2013 alone it denied entry to 4,000 people who had been on a no-entry list, but estimates suggest Turkey's porous border has allowed thousands of militants to cross into both Syria and Iraq. (28) One such example is Imran Khawaja, a Briton who spent six months fighting in Syria. (29) Even though Mr. Khawaja had been put on a U.K. blacklist after posing for a photograph with a severed head in Syria, he was able to cross into Bulgaria from Turkey and drive through Europe, without detection, until he was caught trying to sneak into the United Kingdom. (30) Moreover, although Turkish intelligence declined to comment, media reports suggest some Islamic State militants were planning on using this same method, crossing into Bulgaria from Turkey, to carry out attacks in EU nations. (31)

      While many European intelligence officials fear that a wave of terrorism will sweep over Europe driven by the civil war in Syria and the crisis in Iraq, (32) some argue the potential threat from foreign fighters is exaggerated. (33) For instance, proponents of this theory argue that becoming a foreign fighter makes a terrorist much more likely to come to the attention of security services. (34) Additionally, there are number of other factors that mitigate their likelihood of returning to Europe to conduct an attack. Many foreign fighters either die in suicide attacks or engagements with opposing forces, others continue fighting in the conflict zone or move on to the next battle for jihad never returning home, and still others quickly become disillusioned once in the conflict zone and return home with no violent motives. (35) Others argue that the threat from returning foreign fighters is overstated because the entire foreign fighter experience can be thought of as a process from recruitment to fighting abroad to terrorism, and the vast majority of individuals do not pass through the entire process. (36) Proponents of this theory argue that most individuals move off the road to terrorism at different stages in the process, and conflict-specific dynamics influence the likelihood that a given individual will travel all the way through the process to terrorism. (37) The progression from foreign fighter to terrorist is not inevitable, and the majority of people who return from fighting in Syria and Iraq may pose no terrorist threat at all. (38) Nonetheless, the difficulty remains how to distinguish those who will conduct an attack from those who will not. (59)

      Despite arguments that returning foreign fighters pose little threat to domestic Europe, western security services fear that the foreign fighter threat in Syria and Iraq is different than past foreign fighter episodes. (40) The concern is young European Muslims will go off to fight as "Sunni idealists" but return as "anti-Western terrorists." (41) Not only will those going to fight return as hardened veterans, "steady in the face of danger and skilled in the use of weapons and explosives," but they will also form networks and establish ties to jihadists around the world, making them prone to further radicalization. (42) Through these networks, the fighters...

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