Prospects and challenges of prosecuting foreign fighters in Australia

Since 2011, a large number of individuals known as ‘foreign fighters’ (FFs), have travelled to Syria and Iraq to fight for or support ISIS and other jihadist terrorist organisations. While estimates vary, reports in 2016 suggested that more than 36,500 fighters from 100 countries had arrived in the region, including 230 from Australia. Due mainly to ISIS’s loss of territory, a number of FFs have already returned to their countries of departure, including approximately 40 Australians. Another 80 Australians are believed to still be active in conflict zones. At the time of writing, reports indicate that around 13,000 non-Iraqi FFs and their family members, amounting to 2,000 men and 11,000 women and children, including Australian citizens, have been captured and are being detained in Syria. In the light of these developments, two questions have been asked in Australia and overseas: •Can returning fighters be properly tried in national courts? •Where should fighters currently detained in Syria and Iraq face justice?