While international jihadism has dominated the discussion around foreign fighters in the current Levant conflict, the oft-romanticised overseas volunteers fighting alongside Kurdish militia units have also grabbed global attention. Although the law is clear in its treatment of those travelling abroad to fight alongside jihadi groups, questions remain around those who volunteer with Kurdish Peshmerga units. In this piece, serving British Military officer Archie Hicox (pen name) examines the moral and legal position of such individuals.

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The recent trial of Joe Robinson, a former British soldier, has brought a new focus onto the so-called rise of the foreign fighter. Distinct from mercenaries who trade their expertise for money, the often inexperienced foreign fighter is judged more on the basis of their allegiances by the wider public. Joe Robinson’s case is more problematic for the authorities given that he was fighting alongside the People’s Protection Units (YPG); a Kurdish group that has received significant Western support in its fight against the Islamic State, but also a proscribed group in Turkey (where Robinson was arrested). Given Turkey’s NATO membership and the blurred areas in which the YPG operate, the situation is less clear cut for the British authorities than the more simplistic model of the IS foreign jihadi. This article will look at the difficulty in policing those who fight for moral motivations rather than monetary reward, whether we as a society have the right to stop those who are not a member of a recognised Army but still want to fight, and whether this truly is a new and modern phenomenon.

The task of governments to stop their citizens from fighting for a cause on foreign soil is complex. As a (not-so) theoretical example, we can examine the the UK government’s position on the problem. They are vocally and strategically anti-IS. They deploy their Armed Forces as part of wide-reaching counter-IS operations under the mandate of international law. A private citizen who travels to join the Islamic State in Syria can expect to have their name added to a watchlist and will face the high possibility of detention upon their return to the UK. As an example, Sally Anne Jones (known by the alias The White Widow) was killed by a US drone strike to little protest from Her Majesty’s government. The UK government states on the Foreign and Commonwealth Travel Advice page that “If you travel to Syria to fight, and your activities amount to offences against UK terrorism legislation, you could be prosecuted on return to the UK.” This opens up the individual to prosecution under the Treason Act or under Anti-Terrorism legislation. This is a simple moral decision when the person in question has joined an extremist group such as IS, which stands as anathema to British values. But what if that person – in the case of Joe Robinson – is fighting against that same group, albeit without the legal protection that being a uniformed member of a legitimate Armed Force provides.

The question this raises is whether a state has the right to stop someone who is fighting for a cause they believe to be morally right, that does not also fundamentally clash with that same state’s civic values. If Joe Robinson et al are fighting to defend the lives and freedoms of the Kurdish and minority populations of the Levant, then surely they are protected by the (albeit not foolproof) legal tenet of ‘What is necessary is legal’. This is of course a highly charged and morally difficult question to answer. Additional complications are also created by the presence of ill-trained, non state actors who are not subject to the same training that a professional army is, and the fact that, despite their romanticised image, Kurdish groups fighting in the Levant are not without their own accusations of immorality.

The Law of Armed Conflict states “Only combatants are permitted to take a direct part in hostilities. It follows that they may be attacked. Civilians may not take a direct part in hostilities and, for so long as they refrain from doing so, are protected from attack.” It therefore follows that those civilians who wish to fight become legitimate targets in doing so. The Joe Robinson case is further complicated by the fact he was a trained British soldier, but subsequently was fighting for a non state actor. Essentially the West may often choose to turn a blind eye to returning fighters who are on ‘their side’, but the legal quagmire of UK citizens fighting against a non-state actor (IS) and sometimes even against a legitimate state’s Armed Forces (Syrian/Turkish Armed Forces) alongside an organisation (YPG) that an ally (Turkey) deems as terrorists is one that the West is ill-prepared to publicly discuss.

This is not a new phenomenon. During the Spanish Civil War (1936-39) an estimated 35,000 foreign nationals fought on the side of the Communists against Franco’s Fascists, of which approximately 4,000 were British. As you can see, the situation in 1937 was similar to today, in that a disparate group of individuals were banded together by a common ideology to fight on behalf of their moral compunctions. Even the legislation remains toothless; the 1870 Foreign Enlistment Act – having been passed to prevent British subjects becoming mercenaries – did not result in a single successful prosecution. Ultimately the British government decided that discretion was the better part of valour and therefore avoided public embarrassment through collapsing trials. One can make a similar argument today, that the West will struggle to successfully prosecute anyone who fought on the side of ‘right’, against a tide of media attention and public opinion.

It is therefore likely that this issue will not be readily solved; it hasn’t been in almost a century. It is most likely that legislation will continue to struggle to catch up with the protean desires of individuals to fight for a cause, without the regulation and structure that a professional army carries. Some of these individuals will be trained, while others will be effectively civilians with weapons. But all of them become legitimate targets in the chaos of the 21st Century battlefield as they take up arms, and in so doing lose their protected status. Once they return home there will inevitably be an assessment by the security services as to the risk they pose. Ultimately, in a time of enemies within and without, they will have to prioritise who they surveille and even prosecute. Those who did not fight against their home nations’ values therefore probably have little to fear, but should still question whether adding to the “noise” to be sifted by an already overburdened security services is a morally acceptable decision. They must also examine the rapidly shifting allegiances and front lines of modern warfare, as many of their predecessors have found themselves – after signing up to take on the Islamic State – on the front lines against a Turkish assault into northern Syria.

While their choices have certainly been romanticised by many – and some have even turned to social media to fund their personal war – the reality is far grittier. Many volunteer fighters have died in unknown village battles across Syria and Iraq, while others have been turned back by their own countrymen as the battlefield has shifted under them.

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Archie Hicox is the pen name of a serving British Army officer with an academic background in current affairs and international relations. He has deployed throughout the world on multiple operations, most of which are spent in mentoring roles with local forces. He is particularly passionate about Middle Eastern geopolitical affairs.

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Photo credit: Nûçe Ciwan