It must be remembered, too, that the belief in spirits and ghosts, and the return of the dead is far from having disappeared among educated people, and that many who are sensible in other respects find it possible to combine spiritualism with reason. A man who has grown rational and sceptical, even, may be ashamed to discover how easily he may for a moment return to a belief in spirits under the combined impact of strong emotion and perplexity.
I.1 The Revenants of International Law
It was telling to see how the individuals coming back to Europe from the Syrian battlefield were called returnees, or revenants. The term revenant in fact indicates someone who has supposedly come back from the afterlife.Footnote 2 Since the outbreak of the Syrian Civil War, a plethora of debates has surrounded this non-state actor, debates that have amplified following the Paris and Brussels attacks.Footnote 3 The topic had gained worldwide attention when the United Nations Security Council (UNSC) openly criminalized those joining the Al-Nusra Front and the Islamic State. Conflating the problem with jihadi-led terrorism, the UNSC also offered a definition for ‘foreign terrorist fighters’ (FTF).Footnote 4
As many at the time noted, no real status existed for such an actor in international law.Footnote 5 And yet foreign fighters have long been around the international scene. Historians have generally referred to the broader phenomenon of foreign volunteering, and scholarship has today recognized the involvement of volunteers in many conflicts over the last two centuries.Footnote 6 Some famous examples include the nineteenth-century wars of independence in Latin America, where Britons fought under various guises;Footnote 7 or the Greek War of Independence (1821–1832), which saw many volunteers driven by philhellenic sentiments joining the ranks of the Greek insurgents against the Ottoman empire.Footnote 8 The list continues with the American Civil War (1861–1865), the Second Boer War (1899–1902) and the Spanish Civil War (1936–1939). Recent examples include the Yugoslav Wars and the conflicts in Iraq, Somalia and Libya, where the presence of third-country nationals on the battlefield has been extensively documented.Footnote 9 To be precise, the very term ‘foreign fighter’ is rather a recent invention, appearing in the academic literature and in international forums with the involvement of the Arab Mujahideen during the Soviet–Afghan War (1979–1989).Footnote 10
One can thus suggest that the so-called foreign fighter is but a non-state actor coming back in different historical moments to fight in conflicts abroad.Footnote 11 As such, they can be added to the longer list of ‘irregulars’, a category already explored by legal scholars.Footnote 12 If the phenomenon of foreign volunteering is usually read in relation to the rise of modern nation-state armies, this remains but one aspect of a more complex story.Footnote 13 Travelling for the love of adventure, for idealism, faith, or for pecuniary reasons, there is usually a mix of causes pushing these individuals to join armed conflicts and groups abroad. One common trait points to their vision of an-other place, together with a moral urge to intervene in the world.Footnote 14 ‘I dream’d that Greece might still be free’, writes Byron in one of his most famous poems, whereas André Malraux in L’Espoir describes the different motivations pushing leftist volunteers to join the ranks of the Republicans during the Spanish Civil War.Footnote 15 The desire to seek a deeper meaning is often translated into action, but this impetus is always ambivalent, fractured, a harbinger of ideals and contradictions: ‘I had had one craving all my life – for the power of self-expression in some imaginative form … At last accident, with perverted humour, in casting me as a man of action had given me place in the Arab Revolt’, T. E. Lawrence affirms, not without a hint of cynicism.Footnote 16
To be clear, this book is not concerned with the motivations of different foreign fighters across time and space. Other scholars have successfully proposed this type of analysis.Footnote 17 Rather, what is interesting is the diverse range of characters one can find when looking at the recent history of this phenomenon – for example, romantic adventurers (Byron), mercenaries (Lord Cochrane), political advisers (Lafayette), revolutionaries (Garibaldi), secret agents (T. E. Lawrence) or intellectuals (Hemingway, Orwell and Malraux).
That the most diverse and renowned personalities appear on this list is not irrelevant, or just an extravagant cultural detail. Quite the contrary. Throughout this book, it will be shown how past figures of the foreign fighter are directly evoked by national and international lawmakers. The images of these and other fighters will then reappear from the past – as revenants – when state representatives and politicians cast decisions upon the legal status of this actor. Here is the first reason why it is crucial to go back to history: there is a whole repertoire of figures evoked in the legislative arena. Secondly, this move helps characterizing law as a social artefact, embedded within a web of cultural references. Most importantly, as a human product, moulded by the fears, desires and fantasies that traverse legal actors and their imaginary. This is the aspect that is studied in more depth in this book.
By connecting three significant moments in the recent history of civil war (Spain, Angola and Syria), the book shows how different cultural figures of the foreign fighter have informed and keep informing the legal conversations of state representatives, policymakers, international lawyers and national courts at different times and places. These figures, it is argued, linger at the back of various decisionmakers’ positions and arguments, informing the way in which they understand the rightness or the wrongness of the foreign fighters’ causes and, most importantly, the legal responses to the problem posed by Western citizens going to fight in wars abroad. Epitomizing different conceptions of freedom, these figures have an impact on the way foreign fighters are understood and judged in each historical period.
On this note, it must be added that such figures are not fixed. On the one side, they mirror the historical-political context in which the lawmakers make use of them. On the other, they move across time and space, reappearing in different settings, contexts, moments. Besides, a distinction is operated each time between the ‘good’ and the ‘bad’ foreign fighter: idealists and fascists, mercenaries and military advisers, enemies of humanity and freedom fighters, and so on. The status of foreign fighters is always played out through a lawful/unlawful dichotomy, which links to the passions, the desires and the fantasies that lawmakers project to them.
Nathaniel Berman has showed in his seminal work how rules remain essentially a human product, and likewise how human beings tend to put their ‘passions and ambivalences’ into the categories of law.Footnote 18 Following the same methodological path, foreign fighter status is taken here as an example to show how such status cannot explain the whole story of this non-state actor. Different lawmakers will engage in passionate fights to define who counts as a legitimate foreign combatant, as some wish to prosecute the ‘bad’ foreign fighters under the law, while others argue that they should not be criminalized for their actions. What is at stake is the most classical of the struggles at the core of the legislative process, which reveals how law is not a neutral tool, nor can it soften the conflicts at the root of society.Footnote 19 On the contrary, law understood as a social and cultural construct is embedded within the passions, the desires and the fantasies of its creators, fantasies which, every time there are attempts to expel them from the law, keep coming back, as revenants, here in the form of figures/images of the ‘good’ and the ‘bad’ foreign combatant.
The noble adventurer, the racist mercenary and the religious fanatic are part of a cultural repertoire informing the lawmaking process and related criminalization or acquittal of foreign fighters. Hence, the argument made in this book should not be misunderstood as an aesthetic or visual claim about law. Nor is the accent put on the actual roles played by Byron, Orwell, Malraux and suchlike on the battlefield. Along with De Saussure, the term ‘foreign fighter’ is seen as a floating signifier, with a contextual meaning. It does not matter whether they are volunteers, mercenaries or terrorists. Or rather, it matters to the extent to which the lawmakers will legitimize some and delegitimize others: idealists and fascists; soldiers of fortune and foreign advisers; fanatics and freedom fighters.Footnote 20 The interest lies in the cultural figures which haunt legal actors when they produce these kinds of binary oppositions. As much as the lawmakers would like to rationalize their passions through the law, they fail to do so. Their conscience is split, and so are the images they resort to. Yet these figures populate their imaginary and will come back to inform subsequent debates, establishing the precedents upon which the foreign fighters’ status will be moulded and framed.
I.2 Setting the Frame
The present study ranges from the codification of the 1907 Hague Conventions to the Syrian Civil War, with the criminalization of foreign terrorist fighters (September 2014).Footnote 21 By following the developments on the legal status of the foreign combatant, the story highlights those moments where cultural figures enter the debate and influence lawmaking or adjudicating processes. The book should thus be read as an intervention in the legal history of the Western foreign volunteer, with the intent to analyse this non-state actor from a cultural standpoint.Footnote 22 To this end, the book is built upon three civil conflicts, which mirror three historical moments and their different conceptualizations of law and of warfare.Footnote 23 These are:
(1) The Spanish Civil War (interwar period);
(2) The Angolan Civil War (decolonization);
(3) The Syrian Civil War (War on Terror).
The three civil wars are placed within ideological struggles that provide the setting from which the various figures of the foreign fighter emerge. These struggles can be summarized as follows:
(1) The fight of communism versus fascism (Spanish Civil War);
(2) The anti-colonial uprisings (Angolan Civil War);
(3) Religious fundamentalism (Syrian Civil War).
Other periods (and other wars) could have been considered, notably during the long nineteenth century. However, had the book jumped from the Greek War of Independence to the American Civil War, to Spain, the narrative would have become too episodic, losing acuity and historical accuracy. The references to Byron, Garibald or Lafayette that appear in the first chapter do indeed come from the nineteenth century, but when their images enter the debates of the interwar period, the legal and political landscape is naturally very different from that of previous centuries.
The three periods are thus chosen to reflect contemporary developments within international law, and specifically within international humanitarian law (IHL). The Spanish, Angolan and Syrian Civil Wars in fact represent three vantage points to explore how legal doctrines, the practice of states and the codification of the laws of war concerning foreign fighters have all been advanced in the twentieth century.Footnote 24 This is not done to retrace a history of humanitarian law, however.Footnote 25 Explaining how these individuals were taken into consideration in the codification of IHL principles, or why they have remained rather marginal figures, is not the primary intent of this book.Footnote 26
Here, another clarification is needed. The discussion is on two levels: the national and the international. It is particularly interesting to follow the discourse of legal actors, as it shifts from the domestic to the international plane and back. Lawmakers in the domestic context refer to the international sphere to solve the issue of foreign fighters; conversely, international actors point to the domestic level to pass and enforce legislation against them. This is not only indicative of the interconnections between the two frameworks, but it also reinforces the argument about the difficulty of producing any clear-cut categorization for this non-state actor.Footnote 27
Related to this is the choice of the material. French and British sources have been privileged. Focusing on the case studies of France and United Kingdom was not only due to the possibilities of conducting research, but above all for the richness of the material and for the cultural figures which keep recurring in the debates on foreign volunteers. One of the apparent shortcomings of this work might be that this material remains strictly legal: for example, doctrines, parliamentary debates, preparatory works. While the genealogical method envisages finding the hidden ways in which the legal material is moulded, here the reverse approach was adopted. Within the discourse of legal actors, I deliberately chose to trace those figures that bring a focus from law elsewhere. The objective is to bring out an alterity from the legal material itself, by showing how law is embedded within a web of cultural references in the imaginary of its creators. This is also the reason why the text makes extensive use of direct quotes – attempting to offer a sense of the fantasies, fears and related cultural images that actors use when speaking about foreign fighters.Footnote 28
Naturally, in each of the three periods analysed, only certain sources were considered. The problem of Western subjects going to fight in wars abroad has been discussed in many different forums and by different actors over the last century. Yet not all voices could be included.Footnote 29 Let me state an important caveat. I am aware that there is a multiplicity of stories on the ground in every historical era. Not all leftist volunteers in Spain merged with the International Brigades. There were other right-wings troops and battalions apart from the ones sent by Germany and Italy to help Franco.Footnote 30 One side of the argument is that it is difficult, if not impossible, to reflect all historical complexities. The other, more compelling I believe, is that not all foreign fighters had the same weight in the legal arena. In this sense, the book traces those events which contributed to significant debates and changes in legislation. As I explain in detail in Section I.5, the idea is to detect moments of rupture. To offer another example, the focus on British mercenaries in Angola is useful to the national and international debates triggered by the trial in Luanda (June 1976). That is why the debates at the United Nations (UN) or in Geneva are more persuasive than, say, those of the 1977 African Convention on Mercenarism. Because they are revealing of the conflicting cultural visions underneath the categorization of ‘good’ and ‘bad’ foreign combatants during the decolonization period.
At this point, it must be stressed that the purpose of this work is not to write a global history of the foreign fighter, but only a partial one. Partial, because deliberately Eurocentric. The focus is kept on Western countries, doctrines and actors.Footnote 31 In this sense, the figures of other foreign fighters – that is, those populating the imaginaries of non-Western actors – are left out of this book. Nonetheless, the three chapters reveal that the colonial question is an integral part of the modern history of the Western foreign combatant, both before and after decolonization. Such a question is, however, filtered through figures pertaining to a Eurocentric imaginary. Let us now explore how.
I.3 The Cultural Approach: Ambivalence
Revenants, they have been called. The idea of the return of images of the foreign fighter is of crucial importance to rewrite the history of this non-state actor from a cultural standpoint. As much as lawmakers would like to confine foreign fighters within a certain legal category, they do not manage to do so, because of their deep ambivalences towards this figure.Footnote 32 I take the psychoanalytic notion of ambivalence from Nathaniel Berman, who, in his reading of the passions that cross the modern construction of internationalism, is informed by Kleinian thought.Footnote 33 Melanie Klein retraced the fundamental idea of the individual as split between ‘good’ and ‘bad’ objects of desire, or aspects of the self:
The concept of splitting is central to Klein’s theory in which the individual begins life with the developmentally essential task of achieving a binary split between the ‘good’ and ‘bad’ aspects of himself … Klein’s view is that the first act of the ego is to split off and project out into the object its destructive impulses and its loving libidinal impulses; the object is correspondingly split into a ‘bad’ and a ‘good’ part.Footnote 34
Berman utilizes the idea of the ego’s identity construction and applies it via analogy to the self-constructed identity of internationalism, as: ‘[international lawyers] attempt to construct an image of the self … by splitting between good and bad images of that self – for example, in Basch’s distinction between the good colonialism of the French and the bad colonialism of other Europeans, or in Brown’s distinction between bad “imperialism” and good “trusteeship colonialism”’.Footnote 35 Even if Berman’s analysis focuses on the construction of internationalism as an ambivalent passion played out on binary oppositions, this model can be used for other types of legal constructs and discourses. It is the same kind of ambivalent discourse that is found when legal actors try to give an identity to our foreign fighters: these become split into good and bad ‘volunteers’, good and bad ‘mercenaries’, good and bad ‘jihadists’, and so on.
Yet Berman goes further in his analysis by claiming that ‘[international lawyers] attempt to create an image by splitting between good and bad images of [the] other – for example, between “undisciplined” and “disciplined” nationalism … between not yet men and men’.Footnote 36 In other words, there are figures at play in projecting good and bad versions of the same object, figures which are attached to the desire to see war waged in a certain way, or to the nobility of the cause fought in a conflict abroad. As such, the foreign fighter gets split every time into ‘good’ and ‘bad’ versions of the same: brave highlanders and scary adventurers, noble volunteers and racist white men, perverted romantics and war heroes.
Once again, these figures are not static; they travel in time, and they undergo modifications. As Berman clarifies: ‘so often in “splitting”, the lines between identities “good” and “bad”, “true” and “false” are contingent and indeterminate – an unsurprising feature of constructions that seek “to manage the anxiety” provoked by irreducible ambivalences’.Footnote 37 The notion of ambivalence as developed by Berman through Klein is thus crucial to understand how various legal actors are caught up in a web of cultural references, which they cannot get rid of: ‘I will use the notion of ambivalence to refer to the inability of an individual, a group, or a culture to rid themselves of ideas, passions, or relationships that they nevertheless claim to condemn or deny.’Footnote 38 In our case, the inability of national and international actors of getting rid of cultural images of the foreign combatant which each time symbolize, mirror and epitomize different desires and fantasies projected over them.Footnote 39
The idea that the (legal) identity of foreign fighters passes from certain fantasies which unfold through a historical scenario is supported by the reading of gender historian Joan Scott.Footnote 40 Scott reflects upon the formation of the feminist self through a series of ‘fantasies [which] were produced to consolidate’ such an identity.Footnote 41 Utilizing the axes of ‘fantasy’ and ‘echo’, she shows how: ‘identity as a continuous, coherent, historical phenomenon is revealed to be a fantasy, a fantasy that erases the divisions and the discontinuities, the absences and the differences … Echo provides a gloss on fantasy by reminding us that identity is constructed in complex and diffracted relation to others’.Footnote 42
In every era, foreign fighters are furnished with a plot, or a scenario that settles the desires and fantasies of their creators. In other words, certain passions win over others; they operate as a narrative and contribute to form ‘individual and collective identity’, as Scott explains.Footnote 43 But the original tension (the Kleinian splitting) inherent in all processes of identity-formation cannot be contained, precisely because identities are built upon the marginalization of other desires which propagate over time, as an echo. And so the combatants returning today from Syria are revenants, as much as are past, heroic volunteers – with their barbaric, cynical, racist counterparts. As put by de Certeau: ‘Psychoanalysis recognizes the past in the present … any autonomous order is founded upon what it eliminates; it produces a “residue” condemned to be forgotten. But what was excluded re-infiltrates the place of its origin.’Footnote 44 The term revenant reconnects well both with psychoanalytical theory, and with that form of genealogy that Jacques Derrida had referred to as ‘hauntology’.Footnote 45 Hauntology as a genealogical method is devoted to exploring the characteristic that ghosts seem to possess: the perpetual returning in the form of haunting.Footnote 46 If ghosts come back from the past to haunt us, they also re-infiltrate the historical scene. Reading the history of foreign fighters as a history of phantasmatic figures which populate the imaginary of legal actors across times and spaces can be seen properly as an hauntology.Footnote 47 In this sense, the history of the various juridical categories utilized to label foreign fighters cannot do without the contribution of psychoanalysis, as ‘[psychoanalysis] introduces the agency of the unconscious … psychoanalysis … look beyond the literal and the rational, to entertain the idea that not all actions express the reasoned self-interest of the actors’.Footnote 48 This is of particular relevance to demonstrate how the legal status of the foreign combatant is certainly created via ideologies and state interest, but also via the resort to fantasies, desires and fears. In other words, the cultural archetypes of the foreign fighter might well be used as rationally defensible categories, but that is only one part of the story. To be clear:
this is not to condemn law as a simple reflection of our passions and our unconscious psychological mechanisms, but rather to show that it can never be the product of our reason alone … the suggestive force of Berman’s work lies in its demonstration of the importance and the inevitability of the play of passions at the very heart of international law … The same analysis can be applied to states and their governments … both as national communities and as governments they have their own share of irrationality and passion that guide their actions [which] are not simply a function of their ‘interests’ alone … instead, considerations of morality, of culture, of passion are unavoidably intertwined.Footnote 49
Berman understands law as a part of a larger mosaic, formed by a whole set of cultural, moral and social tiles. Furthermore, he suggests an interconnection between the phenomenon of splitting relevant to individual self-formation of identity, and those of players in larger legal arenas. This is a significant indication of how ambivalence is not only confined to the single, private conscience of juridical actors, but crosses the whole liberal system of international law.Footnote 50 I will return to this point later when discussing the idea of indeterminacy, in relation to the way one can write the history of the foreign fighter and of international law more generally. For the moment, what needs to be assessed is how the cultural figure of the foreign combatant populates the minds of different legal actors, who are part of social groups. That is how to transport the analysis of ambivalence to larger social entities and their imaginary.
I.4 The Cultural Approach: The Imaginary
The concept of the imaginary has a long history in Western thought, beginning with its modern systematizations operated by Hume and Kant, passing from French phenomenology (in the works of Sartre and Merleau-Ponty), and being appropriated by Freud and Lacan and more generally by twentieth-century psychoanalysis.Footnote 51 It is within psychoanalytic theory that this concept is of interest for the scope of this study.
If Freud and Lacan have worked extensively with the imaginary, however, they both maintained a negative vision of such a concept: for Freud, in fact, phantasia is the place of self-representation, the place of passions and emotions that make up the construction of the ego. These passions and emotions must however be tempered and managed because they can pose problems for human beings in their social relations. Lacan takes the teaching of Freud and develops in more detail the phases of the construction of the identity of the ego, for instance in his famous recounting of the mirror-stage.Footnote 52 For Lacan, the formation of identity passes from a whole series of images that are both fascinating and seductive, fearful and joyful, and so on.Footnote 53 As much as for Freud, the imaginary remains for Lacan a necessary illusion, a misrepresentation that must essentially be subsumed at the level of the ‘Symbolic’: the Freudian totemic, civilizing role of culture, is then translated for Lacan into the realm of language, of signs.Footnote 54
Yet if we hold to the notion of ambivalence, we should not understand law as a mere weapon of repression, but as a ‘multifaceted instrument of regulation, emancipation and illusion – as well as of satisfaction, repression and control of individual and social passions, drives and fantasies’.Footnote 55 A position that closely resembles that of social theorist Cornelius Castoriadis.Footnote 56
Castoriadis’ approach to psychoanalytic theory offers an understanding of the imaginary that is not necessarily illusory (something that must be corrected), but with the capacity to produce images in a creative sense: ‘psychoanalysis obliges us to see that the human being is not [an animal possessing reason] but essentially an imagining being … in the unconscious, representation, affect, desire are mixed together … it is impossible to separate them’.Footnote 57 Additionally, Castoriadis suggests a viable route to think of the imaginary not only as a singular, individual enterprise, but as having a ‘social’ dimension:
The merit of Castoriadis’ concept of social imaginary is to point out that the instituting social imaginary is always at the same time instituted. No society could ever exist if individuals created by the society itself had not created it. Society can exist concretely only through the fragmentary and complementary incarnation and incorporation of its institution and its imaginary significations in the living, talking and acting individuals of that society.Footnote 58
This vision of the social imaginary is extremely important, because it offers a framework to analyse individuals as active participants in the creation of society itself.Footnote 59 International lawyers, state representatives, national policymakers, all these groups come with certain figures of the foreign fighter in their mind: be it the adventurer international lawyers refer to during the interwar years, or the Spanish Civil War heroes state representatives evoke at the UN, or the freedom fighters in contemporary parliamentary debates. Yet these individuals do not operate in a vacuum. They are part of larger institutions or social groups that function through their own instituted imaginaries: international lawyers in the 1930s will thus frame the problem of volunteers through the laws of neutrality; state representatives in the 1970s discuss the outlawing of mercenaries in contraposition to the combatant’s privilege; today’s policymakers operate under the global counter-terrorism agenda when deciding which of their citizens shall be prevented from leaving for Syria.
Nonetheless, as Castoriadis posits, men are imagining being and, in the unconscious, representation, affect, desire are all mixed together. If individual and collective imaginaries are interdependent, then all those passions, desires and fantasies that Berman sees as constituting the raw material of the lawmaking process are indissolubly part of the same story.Footnote 60 And this is the decisive point which reconnects the cultural history of the foreign combatant as presented in this book and the figures evoked in various juridical settings. The idea is to offer a link to the way certain figures epitomize the fantasies, the desires and the passions of legal actors distant in time, and the idea of the social imaginary outlined by Castoriadis.Footnote 61 In this regard, I find it useful to turn to Canadian philosopher Charles Taylor, who has developed a workable definition of the social imaginary as the following:
the ways people imagine their social existence, how they fit together with others, how things go on between them and their fellows, the expectations that are normally met, and the deeper normative notions and images that underlie these expectations … this is not often expressed in theoretical terms, but is carried in images, stories, and legends.Footnote 62
It is important to underline the normative aspect of the social imaginary, given that legal actors are constantly involved in the production of rules to capture foreign fighters’ status. As we shall see, the various forms of normative projects that inform the debates on foreign fighters (both nationally and internationally) are flooded with images that emerge from the actors’ inner life. These form the magma of the social imaginary, and become a repertoire that in Taylor’s words ‘is carried in images, stories, and legends’: the nobility of the adventurers à la Byron, the paternalism of the former European colonizers, the twisted romanticism of contemporary jihadists. An ambivalent repertoire, as it emanates from the fears and fantasies of the various legal actors who try to subsume foreign fighters within the rational endeavour of lawmaking. As Berman reminds us:
the cultural approach explores the way international lawyers and policymakers construct their images … in accordance with their own implicit, culturally and historically contingent fears and fantasies … one should not seek to get rid of cultural images but to make them explicit, evaluate them substantially, allow them to compete with alternative images.Footnote 63
And so international lawyers and policymakers construct the law related to foreign fighters by resorting to their own culturally and historically contingent fantasies and fears. These crystallize into images of the ‘good’ and ‘bad’ foreign combatant, which help them to characterize how civil war should be conducted, who is a legitimate fighter, or which side of the trench is the right one to die for. Read this way, the imagination of legal actors should not be seen as a purely negative enterprise. If legal categories are necessarily ambiguous, this could in fact be seen, according to Berman, as an opportunity to ‘allow [images] to compete with alternative images’. This approach is a way to rethink the story one is accustomed to, and most importantly to include other narratives. What is at stake is not only how one can write the history of the foreign fighter per se, but the histories of international law more generally. I will try to elucidate this point further in the next two sections.
I.5 Engaging with the Past
The historical work presented in this book has been influenced by the genealogical method developed by a variety of authors commonly associated with French post-structuralism.Footnote 64 This has provided the background for articulating my claim around the different figures of the foreign combatant, via a reading of history centred on the study of discourse.Footnote 65 Broadly conceived, genealogy not only investigates how certain ideas and concepts are always rooted in specific historical, political and linguistic contexts, but it also suggests a vision of history in terms of accidents, ruptures and discontinuities.Footnote 66 Specifically, it seeks to identify the deviations which contributed to the formation of certain apparently stable and well-rounded truths. Or as Foucault put it: ‘genealogy does not pretend to go back in time to restore an unbroken continuity … it seeks to make visible all of those discontinuities that cross us’.Footnote 67
If genealogy focuses on the ruptures, the suppressions and the exclusions that cross us, Foucault himself remained cautious about the purpose of this method: ‘its duty is not to demonstrate that the past actively exist in the present’.Footnote 68 At first glance, this seems to contravene the project of a theorist whose aim had always been to write a history of the present. But that the past can represent a means to understand the present is an idea that must be handled with due care.Footnote 69
Every historical period comes with its own episteme, with a system of significations which introduces a form of radical discontinuity within any underlying idea of continuity of forms and concepts.Footnote 70 The interwar reliance on neutrality laws to read the phenomenon of foreign volunteers is very different from the post-Geneva 1949 landscape, to offer a blunt example. This is not something undesirable, but rather enriching for the genealogist. In this sense, his task is to work at the hedge of continuity and discontinuity.Footnote 71
I find the idea of working between continuity and discontinuity one of the peculiar traits of the so-called historical turn started by Martti Koskenniemi’s Gentle Civilizer, which has since developed in multiple directions.Footnote 72 The historical turn has brought about one of the most significant shifts of international legal scholarship, especially because it translated into a critical strand that was able to problematize mainstream views of progress and modernization typically attached to the discipline.Footnote 73 This turn has produced breaks and ruptures, revealing a series of alternative stories, together with shedding light on instances that seemed forgotten, taken as natural or – and this is important – fell outside international law’s traditional boundaries.Footnote 74
The idea of working between continuity and discontinuity does not sound completely foreign to lawyers either. This is common practice in our profession. The fact that in the legal field the past is constantly retrieved as a source of rationalization of the present has been described by Anne Orford as the ‘anachronistic’ nature of the (international) legal method: ‘the study of international law requires attention to the movement of meaning. International law is inherently genealogical depending as it does upon the transmission of concepts, languages and norms across time and space. The past, far from being gone, is constantly being retrieved as a source or rationalization of present obligation’.Footnote 75 This is to say that, unlike historians, legal scholars are interested in how concepts move across time and space, rather than seeking for a pure contextualization of the so-called historical archive.
Orford thus posits an important methodological distinction with both the Cambridge school and a vision of history as a product purely of the historian.Footnote 76 ‘Between the meaning that has become an object, and the meaning that allows to understand it today’, as Foucault notes, there is the juncture where it is possible to situate a workable methodological position.Footnote 77 Let me now offer an example which points to the idea of working between continuity and discontinuity that I have just evoked.
The three historical periods chosen in this study can be seen as moments of rupture – that is, moments where the discourse of legal actors drastically change. This is especially evident when analysing the argumentations of international lawyers around the three civil wars: the Spanish, Angolan and Syrian wars are in fact described as different from ‘all that has happened previously’. This is also translated into how lawyers and experts understand the problems of foreign fighters. For instance, during the Spanish Civil War, many internationalists would begin their dissertations by claiming that ‘adventurers of all sorts have always fought in wars abroad’, yet the present situation had to be understood differently due to the presence of fascist volunteers on the ground (something that altered the way in which the problem was traditionally understood). The same line of argumentation goes with mercenaries during decolonization and with terrorists today.
In a sense, this is the story of international law as a discipline built upon subsequent crisis or, to put it otherwise, obsessed with crisis discourse.Footnote 78 If this is an integral part of the preoccupations that legal actors project over foreign fighters, their change of register is important to confirm a twofold aspect. On the one hand, lawmakers want to break away from the past, to conclude that the present historical period (with its own foreign fighters) is radically different from what has occurred previously. On the other hand, their imaginary is held hostage to certain figures who keep coming back, and from which they cannot free themselves: the adventurer à la Byron, the heroes of the Spanish Civil War, the freedom fighters of decolonization. Figures that rise to their contextual meaning when placed in a historical context.Footnote 79 Figures which must not be seen only as imprisoned in that context, however, but that travel through time and reappear in subsequent epochs.
The idea that the past is not to be considered as a dead letter, but rather something which informs present legal obligations, is also one of the workhorses of Third World Approaches to International Law (TWAIL).Footnote 80 If the aim of this scholarship is to revive past practices, institutions and discourses to show how they might form the basis of legal obligations in the present, its strand of critique remains rooted in a postcolonial approach to law.Footnote 81 As such, there is a tendency to emphasize the various encounters with the colonial ‘other’ and to put such encounters at the centre of their investigations. Although this critique is of fundamental importance for any stance against the universality of international law, the approach followed in this book does not go in that direction. I will try to explain this point by resorting again to the three contexts upon which this study is built.
Spain in the 1930s, Angola in the 1970s and contemporary Syria are undoubtedly other places with respect to the centrality of European consciousness, actors and institutions. They represent an alterity (for example, a ‘barbaric/backward place’, a ‘space for adventure’, a ‘promised land’) where different actors project their fantasies. The decisive point, however, is not to retrace an encounter with a colonial subject out there, or to unravel how legal discourses or practices have developed through the exclusion of certain others. The goal is rather to look at the otherness inherent in the figure of the foreign combatant itself. So that the ‘barbarity’, the ‘fanaticism’ or the ‘heroism’ attached to this figure are all fantasies that inhabit the consciousness of the actors who use and deploy them for different purposes.
Gerry Simpson has suggested something in a similar vein when analysing the pirate, as a figure underpinning the legal category of the ‘enemy of humanity’.Footnote 82 As pirates started to be back in vogue with the advent of the global war on terror, Simpson seemed at first inclined towards a grand narrative about international law and the ever-present problem of piracy: ‘the international community fights humanitarian wars against outlaws and pirates’.Footnote 83 This would have been a story of how the figure of the pirate is used to mobilize particular legal regimes (such as universal jurisdiction or humanitarian intervention). Yet Simpson moves towards another kind of narrative within his recital about pirates. By claiming that pirates were not always seen as criminals, but also as a ‘mode of production supported by great Powers and Empires’, or as active participants in rebellions, wars and revolutions, the Australian scholar ends up telling a different story, one which goes in the direction of ambivalence:
it is important here to do more than simply make an argument about the return of the pirate or, indeed, produce a Schmittian salvo in the direction of Empire. What I want to suggest is that the pirate is a deeply ambiguous figure … this ambiguity emerges precisely because of efforts to inject clear moral distinction into our dealings with enemies while at the same time erasing some of international law’s most enduring demarcations … if the pirate is [a] foundational category … then it is little wonder that categories are blurring as this figure resurfaces. Indeed, the return of the pirate is a return to ambiguity … pirates turn out to be not enemies of humankind but humankind in its plural guises.Footnote 84
And so for our foreign fighters. Recounting their recent history could have resulted in looking at how this actor has been mobilized, by whom, and for what purposes: the Russian Comintern at the time of the Spanish Civil War, Third World states throughout decolonization, Western countries in today’s war on terror. One would therefore be tempted to seek the usual suspects of international law: foreign intervention, the crime of aggression, the laws of neutrality and the duties of states in civil war, or indeed the combatant’s privilege. Let me be clear, all of these are integral and essential parts of the narrative, and the three chapters of this book make explicit references to such a legal context. But my story veers in another direction. In this regard, and to make my position more explicit, a few words on the issue of indeterminacy.
I.6 The Stakes for International Law
I am of course very much indebted to Martti Koskenniemi’s critique of the international legal argument.Footnote 85 The indeterminacy of norms and the binary opposition which structure legal rules are evident in the way actors engage in passionate fights to establish who is the ‘good’ and who is the ‘bad’ foreign combatant. Leaving aside the fact that such a model is built upon a liberal theory of politics, the story of how foreign fighters enter legal debates points to the inherent political premises of law.Footnote 86 For critics such as Koskenniemi, ‘modern international law is an elaborate framework for deferring substantive resolution elsewhere’Footnote 87 – only to realize that ‘a demonstration that “it all depends on politics” does not move one inch towards a better politics’.Footnote 88 Engaging in the language of expertise is certainly a tactic, and David Kennedy has demonstrated that strategy masterfully.Footnote 89 But what about the short-circuits of power, its grey areas, its ambiguities?Footnote 90 What about the inner passions, the ambivalences of discourses, the fantasies that populate them? And why not reconsider our ambiguous relationship with power itself? This should not be read as an invitation to relativism, or to political disengagement, but rather to restart a dialogue with our own fractured self. Writing a purely Marxist or TWAIL or feminist history of international law are very important enterprises. But so is reflecting more on the ambivalences and contradictions of each of the above positions (and so of pro- and anti-colonial positions, pro- and anti-imperial positions, pro- and anti-jihadist positions, before pointing them out simply as fanatical, racist, sexist, or imperialist).Footnote 91
To be fair, Koskenniemi’s turn towards history has already directed critique from the analysis of ahistorical structures to the moving landscape of a whole diverse set of actors, places and chronologies.Footnote 92 What remains to be seen is how to mould the historical material, how to expand the histories of international law.Footnote 93 On the one side, ‘we do not need to always look at Westphalia’,Footnote 94 and on the other, ‘by confining themselves to the very same terms, categories and vocabularies of the linear disciplinary histories [they seek to disrupt], these new critical histories uphold more than they disrupt or displace’.Footnote 95 As one soon realizes, the limits of our imagination are the limits of history.
And so one can well advance the claim that categorizing foreign fighters as ‘good’ and ‘bad’ is a common trope used by states to legitimize/delegitimize forms of intervention in a foreign war. Or that the law in relation to foreign volunteers reflects the change in worldviews from the age of positivism and neutrality to postcolonial left-wing euphoria, to the fight against an absolute evil (such as Islamic terrorism). No one is denying such arguments. I have already mentioned international law’s usual suspects as examples of histories one can write following those lines. Yet the present study wants to go beyond the dictates of the raison d’état, the pragmatic decisions of realpolitik, or law’s ideological developments.
To retrace a cultural history of the foreign fighter might then well be a history of the phantasmatic figures which populate the imaginary of legal actors in different contexts and places. This is done by taking the concept of ambivalence as a pillar, and as such rejecting ‘international legal history as an ever-advancing dialectic of restatement and renewal’.Footnote 96 The genealogist à la Berman does not see law merely as a repressive tool of power and control, but as a multifaceted instrument of regulation, emancipation and illusion: ‘it is precisely international law’s lack of coherence, the instability of its transitory configurations of rules and players that makes it a hopeful enterprise’;Footnote 97 a discipline haunted by passions, fantasies and desires, which must necessarily reflect those of its creators.Footnote 98 It is in this sense that ambivalence should be understood, as traversing the whole structure of apologetic and utopian claims of international law.Footnote 99
To restart a conversation on law’s ambivalent side is a way to investigate further how and why certain norms are produced the way they are.Footnote 100 I believe there is a need to move away from technical expertise and to open other perspectives out of the hyper-procedural way in which international law is produced and enforced.Footnote 101 In this sense, the categorizations of foreign fighters are also the product of ambivalent passions, fears and desires, and not of politics and self-interest alone.Footnote 102 This occurs because international law – like any other type of law – is finally a human product. As such it is influenced by the passions and the ambivalences of its creators. Hence the constant recourse to something other than law.
That approach can be enriching not only as a matter of history-writing, but also for the practitioner and the expert. My book can in fact push them to face their own inner tensions and ambiguities as something not to discharge, but to reconnect with. My suggestion is that coming to terms with this aspect of lawmaking could be beneficial, rather than hiding behind technical legalese. There is something to gain here in recognizing that our cultural biases, fantasies and fears come into play when we engage with certain non-state actors, for instance, and with international law more generally.
To offer some clearer markers, resorting to such an approach can be useful to: (1) de-exoticize today’s foreign fighters under the recent global war on terror, and thus expand their histories and consequently the histories of international law; (2) clarify where our normative values come from, and what the assumptions are that we resort to when we look at the involvement of third-country nationals in armed conflicts; (3) show how the figure of the foreign combatant is always differentiated into a ‘good’ and a ‘bad’ version; (4) propose a broader reflection upon the reasons why the status of foreign fighters remains one of the problematic nodes of international law.Footnote 103
One final yet essential point. As we shall see through the chapters, foreign volunteers’ choices to join wars abroad point to the ambivalent landscape of commitments related to various liberating projects. Their presence on the battlefield is framed through a good/bad dichotomy, this dichotomy translates into normative responses of different scales and, most importantly, it reflects moral–political stances of diverse kinds. These reveal how Europeans have certainly gone to fight in wars abroad before, but for quite different reasons. Most importantly, they have gone to fight against and for fascism, they have gone to fight for and against communism, and they have gone to fight against present-day dictatorships, though with different projects in mind. Read this way, we could ask how the presence of these individuals is contributing to shape our own perception of civil war and, consequently, how we think about our values and beliefs when we encounter any legislative measure on foreign fighters. If volunteering abroad has epitomized different political visions and passions, perhaps this can help us think about the larger picture, rather than apply a deficit model. Apart from any postmodern posture, shouldn’t we ask ourselves what liberating projects we can commit to? What stances are we able to accept, or even hear? And how do we understand the claims made by present-day non-state armed groups, especially those pointing beyond the contours of the nation-state? The figures which populate the imaginary of legal actors are a way to reconnect with our own ambivalent conscience in this regard.Footnote 104 Perhaps leaving that space open is the most genuine emancipatory venture we can hope for in the anxious times that come after the fall of utopias.
I.7 Content of the Chapters
Each of the three chapters starts in medias res, with a story immersing the reader in the historical context and delineating the legal contours of the civil war analysed. These narratives set the tone of the ideological struggles fought and offer a background to the legal concepts related to that particular war and its actors. The concepts treated are not left solely to these introductory stories, of course. They are organically developed during each chapter, taking the reader through the various sites where the figures of the foreign fighter eventually emerge.
Chapter 1 opens in May 1937 at the Council of the League of Nations (the Council). There, the Spanish representative is pleading his case to sustain the legitimate volunteers fighting on the Republican side, while denouncing the presence of fascist troops sent by Rome and Berlin. The chapter moves on to analyse the Anglo-American doctrine during the same years, as well as domestic discussions in France and the United Kingdom over the adoption of ad hoc legislation to prevent their citizens going to fight in Spain. It ends with an excursus on the Hague Peace Conferences of 1907, where early norms on volunteers were codified. The purpose of the first chapter is to delineate the legal, cultural and political terrain to understand how foreign volunteering was understood in the interwar period. It shows how the figure of the adventurer as a legacy of the long nineteenth century underpins the conversations of legal actors of the time, and the changes this figure undergoes through the Spanish Civil War years.
Chapter 2 opens with the mercenaries’ trial in Angola (June 1976). This trial provides an entry point to the decolonization period, showing how foreign fighters are understood in a new historical context. The chapter moves on to analyse crucial debates at the UN General Assembly and at the Security Council in the period 1960–1976, as well as national responses to the condemnation of the British mercenaries in Luanda. It ends with an excursus on the advancement of the laws of war in Additional Protocol I to the Geneva Conventions (1977). The aim of Chapter 2 is to show the persistence and modification of the figure of the foreign volunteer (that is, the adventurer of Chapter 1). It highlights an interesting inversion of perspective from the Spanish Civil War era: now the noble volunteers of the International Brigades are taken as an example by the representatives of European states to legitimize the presence of their citizens in Africa. This figure will be contrasted with that of the soldier of fortune, who resembles and embodies an older one: the white colonial ruler against whom wars of national liberation are being fought.
Chapter 3 focuses on the Syrian Civil War. In this context, the criminalization by the Security Council of the foreign terrorist fighter (2014) once again sparked passionate debates among experts, state representatives and politicians around the legal status of foreign volunteers. Chapter 3 retraces the debates at the Security Council and in domestic parliaments, and moves on to analyse some crucial court decisions in France and the United Kingdom concerning the jihadist foreign fighter. It puts in question the proscription of this actor as the current enemy of humanity. This final chapter shows how ad hoc legislation and court decisions on foreign terrorist fighters are still filled by a series of figures from the past. These figures contribute to making the legislative and adjudicative processes deeply ambiguous. Such images inform the legal conversations and point once again to the foreign fighter as an unsettling category.
