Unpacking Foreign Fighting: New Zealand’s Legislative Responses to Transnational Combatants

Abstract

Is it lawful for New Zealanders to travel overseas to participate in a foreign conflict? Political statements and travel advisories have discouraged the private participation of New Zealanders in the conflicts in Syria and Ukraine. Yet, prohibitions in New Zealand’s law are currently restricted to criminal offences related to the ‘mercenary’ and the ‘foreign terrorist fighter’. Foreign fighting or foreign incursion conceived more broadly are not specifically prohibited. At first glance, the chosen mercenary-terrorist binary appears unreflective, leaving unhelpfully unpacked any broader phenomena of transnational combatants who might not be fighting with designated terrorist entities or for financial gain as mercenaries – such as volunteers fighting in Ukraine or with Kurdish forces in Syria. This article brings together the various areas of law that address these questions, providing a historical account of how the law has evolved over time. It reveals how New Zealand’s discourse in key moments of legislative debate has in fact continually preserved space for certain types of private involvement in transnational armed violence. The article suggests, therefore, that the unpacking still required is not necessarily that of seeking better understanding of transnational participation in war and its policy considerations, but rather further consideration of the values and assumptions underlying the permissive legal positions taken in the first place.