The children (and wives) of foreign ISIS fighters
83
the past 50 years.70 Without delving in the complexity of the legal framework established to counter terrorism at the international level, the aim
of this section is to briefly sketch out which instruments can contribute
to outlining States’ obligation to repatriate their nationals, in particular
women and children. International counter-terrorism law comprises disparate norms stemming from different sources, mainly counter-terrorism
treaties and Security Council Resolutions.71 Notably, the numerous counter-terrorism treaties that have been adopted so far have been described
as ‘sectoral’ as they require States parties to criminalise particular methods of transnational violence commonly used by terrorists, establish extensive jurisdiction over specific offences, and investigate, apprehend
and ‘prosecute or extradite’ individual perpetrators.72 Furthermore −
since sectoral counter-terrorism treaties are generally limited to transnational offences − violence in non-international armed conflicts that are
purely domestic is not covered by those instruments.73
On the other hand UN Security Council Resolutions − which since
2001 have required broader legislative and enforcement measures to be
taken by States against terrorist threats in general − find application also
in situation of armed conflicts, international and NIACs, even though
their relationship with IHL is only vaguely delineated and no guidance is
provided to address potential conflicts of norms between the two areas.74
With regard to the phenomenon of FTFs, the UN Security Council has
expressly recognized and underscored the peculiarities attached to the
status of women and children in Resolution 2396 (2017), which has been
described as going significantly further than its predecessor, ie Resolution
2178 (2014), in several respects.75 Resolution 2396 (2017) calls upon
70
L van den Herik, N Schrijver, ‘The Fragmented International Legal Response to
Terrorism’, in L van den Herik, N Schrijver (eds), Counter-Terrorism Strategies in a
Fragmented International Legal Order: Meeting the Challenges (CUP 2013) 20-25; B Saul,
‘The Emerging International Law of Terrorism’ in B Saul (ed), Terrorism: Documents in
International Law (Hart 2012) 67; Capone (n 11) 237-242.
71
B Saul, ‘Terrorism and International Humanitarian Law’ in B Saul (ed), Research
Handbook on International Law and Terrorism (Edward Elgar 2014) 208-231.
72
A Bianchi, Y Naqvi, International Humanitarian Law and Terrorism (Hart 2011).
73
Saul (n 71) 219.
74
ibid.
75
H Duffy, Guidelines for Addressing the Threats and Challenges of ‘Foreign Terrorist
Fighters’ within a Human Rights Framework (OSCE/ODIHR 2019) 17.