Krigsförbrytare, terrorister eller bägge? - Om förhållandet mellan krigsförbrytelse och terroristbrottslighet

Sammanfattning: Even though Sweden has not been at war for more than 200 years, Swedish courts have since the turn of the century had to deal with cases involving war crimes. Swedish courts are faced with difficult questions in connection with the prosecution of, among others, Swedish citizens who has travelled to conflict areas, such as Syria and Iraq, and participated in the warfare. The use of force in an armed conflict and terrorist crimes can coincide in methods and motives. This is illustrated by the fact that terrorist organizations can be involved in armed conflicts. A special concern has been raised regarding the so-called foreign terrorist fighters, who take part in armed conflicts in support of a terrorist organization. This essay aims to examine the overlap between war crimes and terrorist crimes. For such an overlap to exist at all, one first needs to conclude that both criminal provisions can be applicable in an armed conflict. Therefore, this essay describes the exception in consideration point 11 of the European Council's framework decision, which forms the basis of our Swedish criminal law regulating terrorist crime. On the basis of the statement made in the consideration point, as well as with regard to its context, this essay suggests that terrorist organizations are not excluded from the scope of the framework decision, and acts by members of such groups can therefore be tried under the national provision. Even if a different conclusion were to be drawn regarding the scope of the framework decision, the European framework sets a minimum requirement and does not constitute an obstacle for having further criminalization in the national regulations. Finally, the essay discusses the Swedish theory on cumulative sentencing and how this can be applied in the case between war crime and terrorist crime.