In recent years, individuals have increasingly travelled from their
respective countries to join the ranks of armed opposition groups and
terrorist networks, oftentimes in zones of ongoing armed conflict. One must
look no further than recent newspaper headlines to realize that the “foreign
fighters” phenomenon is as pervasive across borders as it is challenging,
both from policy and legal standpoints. While the prospect of individuals
travelling abroad to join ongoing hostilities is far from novel, the number
of such foreign fighters lending support to terrorist organizations has been
unprecedented in recent years, posing considerable threats to domestic,
regional, and international peace and security. Hence, domestic, regional,
transnational, and international actors have adopted measures to counteract
terrorism, more broadly, and have begun to address the problem of foreign
(terrorist) fighters. The contributions of the United Nations Security
Council (UNSC) are particularly noteworthy and, indeed, there has been
growing interest in that organ's “quasi-legislative” activities.
The International Court of Justice (ICJ) has mostly emphasized substance over
form and developed a pragmatic, flexible, objective, and fact-based analytical
approach to jurisdiction. That is until a recent series of judgments veering
towards jurisdictional formalism. However, to truly reflect its designation as
the “World” Court, the UN's principal judicial organ must
surely adjudicate some of the “big cases” with global security
implications and involving important obligations erga omnes
beyond strictly bilateral dynamics: the Marshall Islands cases
were as good contenders as any for the Court to enhance its legitimacy
capital.1 As a
corollary, accepting this role might entail that the Court interpret its
jurisdiction in a flexible and progressive manner, which had always been its
mantra up until recently, so that the “big cases” have a chance of
getting their foot in the door and being litigated.
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