Citizenship stripping, expulsion and statelessness: counter terrorism measures have gone too far
Caught up in ‘legislative fever’ around counter-terrorism, states have too readily instrumentalised nationality policy on the pretext of national security.
Over a matter of weeks, in early 2019, Shamima Begum became a household name. Not because her actions were more horrific or her situation more shocking than those of ‘ISIS brides’ of lesser fame. Rather, it was a result of her very public appeal for help to return home and her government’s very public response of refusing this request and instead withdrawing her citizenship. Her case has been in and out of the headlines ever since, as the media reported on the birth and then death of her third child in al-Hol camp in Syria, and followed her battle to have her British citizenship reinstated.
Begum’s case has sparked much controversy. It is just one of a growing number of instances of instrumentalization of nationality policy as a means to address the so-called ‘foreign fighter’ phenomenon – but her particular situation has provoked more fierce debate than other reported denationalisations. From a human rights perspective, the reasons for this are evident. Begum was still a child (15 years of age) when she was recruited and when she travelled to Syria, where she became a child bride and a child soldier. She had suffered grave trauma by the time she appealed to the UK government to be allowed to go home, at which point she was also heavily pregnant and stranded in a camp under appalling conditions – raising the question of responsibility towards the baby as well. A rights-based approach to these circumstances would dictate that she be offered protection and that the focus lie on restorative justice and social reintegration.
Instead, her government saw reason to strip her of her citizenship and through this, to shirk any responsibility for her – be it to protect her right to life or, in fact, to investigate and prosecute her. It is in respect of the latter of these implications of her denationalisation that the first cracks are revealed in this blind pursuit of ‘security’ or ‘symbolic justice’. If she is a terrorist and she is asking her government to bring her home, where she knows she could face prosecution, why is this not the first priority?
A rights-based approach to these circumstances would dictate that she be offered protection.
The practice of withdrawing citizenship from persons involved in terrorist activities or suspected of such involvement has been criticised as one of “exporting of risks” – contrary to UN Security Council Resolutions which require states to investigate and prosecute terrorism through their national criminal justice frameworks. After all, in respect of how to deal with ISIS fighters, those arguing for managed return have pointed out that it is “European governments [that] have the resources to handle these people through prosecution, surveillance, or reintegration, as appropriate”. Begum has been abandoned by her government in a country where there is no capacity to bring her to justice and where any chance of rehabilitation is out of question. The very act of deprivation of nationality also “constitutes an obstacle to accountability and justice, as the connection with the active nationality principle – one of the main possibilities to exercise criminal jurisdiction – is removed” – as Professor Martin Scheinin and Dr Christophe Paulussen explain.
Moreover, the very public denunciation of Shamima Begum by her own government drew unprecedented attention from the world’s media. If she were in fact intent on doing harm, then her denationalisation may have increased her capacity to do so, rather than rendering her a non-threat, by giving her an international profile. It’s hard to ignore the warning issued by Dr David Malet on the basis of historical precedent that “Arab states preventing jihadis from returning from Afghanistan in the 1990s led to waves of foreign fighters spreading to war zones and failed states around the world. Osama Bin Laden is Exhibit A of the folly of stripping a foreign fighter’s citizenship and then washing your hands and assuming the individual is no longer your problem”.
As states skirt around the dubious effectiveness – and possible counter-effectiveness – of deprivation of nationality as a tool of national security policy, they also ignore the wider ramifications that an extraterritorial approach to counter-terrorism has for the integrity of the international legal system. Denationalisation with a view to abandoning an (allegedly dangerous) former citizen to their fate in the country in which they find themselves is an encroachment on the territorial integrity of another state. The duty of a state to (re)admit its own nationals is understood to constitute a “vital means of regulating the coexistence of sovereign entities” and a state should not use denationalisation as a means to circumvent that duty. Indeed, it may be a slippery slope: if some states deploy the technique of off-shoring a national security threat by stripping citizens who join terrorist organisations of their nationality while they are abroad, what is to stop others from also shirking their own duty to readmit their undesirable citizens. Imagine the impact this could have for the whole system of international mobility, for instance, if a receiving state could no longer rely on the ability to return migrants who have engaged in criminal conduct and breached the terms of their immigration status.
Denationalisation with a view to abandoning an (allegedly dangerous) former citizen... is an encroachment on the territorial integrity of another state.
What exactly is the point?
Whether we see Shamima Begum as a (former) child bride and child soldier whose situation demands protection, restorative justice and social reintegration; as a criminal whose actions warrant prosecution; or as a security threat that needs to be thwarted… depriving her of her citizenship does not assist in any of these objectives. In the absence of a legitimate aim that is effectively served by denationalisation, the necessity of the measure is in question.
This raises yet further issues when the decision is scrutinised as to its conformity with international law. As set out in the Principles on Deprivation of Nationality as a National Security Measure, The right to a nationality is a fundamental human right and arbitrary deprivation of nationality is prohibited. Withdrawing nationality, without satisfying the condition of necessity, is by definition arbitrary. So too is denationalisation that is discriminatory in purpose or effect; deprivation of nationality that results in statelessness or directly leads to a violation of other (in particular non-derogable) rights; or withdrawal of citizenship that is executed without due process.
Caught up in “legislative fever” around counter-terrorism, states have too readily instrumentalised nationality policy on the pretext of national security and eroded every one of these safeguards that international law recognises as vital to protecting the institution of citizenship from abuse. That this amounts to a mis-step, not only from a human rights perspective where the measure raises evident problems, but also from a security perspective, is a concern that is increasingly being aired.
A Dutch oversight committee recently admitted that it is “uncertain whether the measure has the desired effect”, recalling in its report that the General Intelligence and Security Service had flagged that deprivation of nationality “does not remove the (potential) threat posed by the individual [and they would] would still have to continue to investigate the threat that a person potentially poses”. As Shamima Begum and numerous others fight through the courts to retain their citizenship – in the UK, the Netherlands, Australia and elsewhere – a comprehensive re-evaluation of this overreach is needed, not just at the level of individual cases, but at that of the legitimacy and wisdom of the policy as a whole.
On 9 July 2020, the Institute on Statelessness and Inclusion is co-hosting a side-event to the UN Virtual Counter Terrorism Week on ‘Citizenship stripping, expulsion and statelessness: have counter terrorism measures gone too far?’ with the UN Special Rapporteur on Counter Terrorism and Human Rights. This event forms part of a Year of Action Against Citizenship Stripping.
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