Author: Marnie Lloydd1
Published in National Security Journal, 29 March 2023
Download full PDF version – Unpacking Foreign Fighting: New Zealand’s Legislative Responses to Transnational Combatants (429 KB)
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.
Keywords: New Zealand; law; armed conflict; solidarity; foreign fighting; foreign enlistment; counterterrorism; mercenaries; Ukraine; Syria
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1 Marnie Lloydd is a Lecturer in Law and Associate-Director of the New Zealand Centre for Public Law, Te Herenga Waka – Victoria University of Wellington. Her research focuses on international law related to armed conflict, civilian protection, forced migration and humanitarian law and policy. This article focusing on New Zealand builds on a larger research project on the history of international legal debates about foreign fighting. Email: marnie.lloydd@vuw.ac.nz.