While the United States and its allies are clearing out the last pocket of territory in Syria controlled by the jihadist group Islamic State (IS), and celebrating the end of the ‘Caliphate’, there is a debate raging in western countries about the potential return of citizens who went to fight with IS, and their families. In addition to long-running discussions about whether to repatriate the fighters to face western courts, and ‘rescue’ their wives and children, now the discussion is centred on the potential to take away their citizenships, to prevent them from returning.
Dr. Christophe Paulussen explains why is this now a big discussion point.
Paulussen: It’s really because the Caliphate is crumbling. So, the question is what to do with the residents of the former Islamic State (IS), now that the territory is shrinking to a very small piece of land. We can currently observe a typical knee-jerk response from politicians, to keep ‘those people’ (even though they are our fellow citizens) away from our territory and to protect our national security at all costs.
Justice Hub: What’s the rationale behind taking citizenship away?
Paulussen: I’ve written about “risk exportation”, and that you have to be careful not to pass the buck to other countries. Probably the rationale for politicians in the Netherlands and elsewhere is: we don’t want to import the risk which is currently over there, and we want to keep it that way. Hence, along with talking about repatriation – bringing them home or not – you now see discussion around the use of deprivation of nationality. I am convinced we will see more of these cases in the days and weeks to come.
Justice Hub: What kind of numbers of people are we talking about?
Paulussen: US president Donald Trump called on European countries to “take back” their citizens and in his recent tweet, he mentioned 800 foreign fighters. But a spokesperson of the Kurdish-led Syrian Democratic Forces (SDF) alliance has told journalists that those were old numbers and that it is more in the realm of 1500 fighters. And then he’s not even talking about the families.
Justice Hub: Why is it so difficult to be sure of the numbers. Don’t we know the numbers of people who left from specific countries to go and join IS?
Paulussen: Yes, there have been various studies of people leaving, and also on the numbers of people coming back. Moreover, there are numbers available on people who have certainly been killed. Nonetheless, the whereabouts of many others remains unclear. Maybe they have been killed as well, maybe they have moved to a different conflict, but they can also still be hiding in Syria, in small villages, waiting for a good moment to pop up again once the allies have left and take up arms again (or not). Finally, the numbers are also dynamic: think of all the children that were born from foreign fighters.
Justice Hub: Do states actually have the right to remove citizenship from people?
Paulussen: According to the 1961 Convention on the Reduction of Statelessness, which is, I should stress, a rather old convention, which came into being before the progressive development of human rights law, there are some restricted possibilities to deprive someone of citizenship. However, there is a very clear prohibition against ‘arbitrary deprivation’. In deciding whether or not deprivation is arbitrary, you have to look at the legitimate purpose of the measure, the duty to avoid statelessness, the prohibition of non-discrimination, the principle of proportionality, the duty to follow due process etc.
Justice Hub: That all sounds like it’s nearly impossible to take citizenship away
Paulussen: In principle, it is possible. But arbitrary deprivation is never possible – it is illegal. So you have to ask yourself whether in certain cases it is, for example, necessary in the first place. If mono-citizens – like for example myself – I do not have dual nationality – were to be involved in these kinds of matters, we could maybe expect to be criminally prosecuted or to receive a temporary area ban or some other less far-going administrative restriction. But my nationality would not be deprived because that would leave me stateless, which is not possible. And then, of course, you have to ask: if this is possible for me and other mono-citizens, then why are these alternative measures not available for people with dual nationality as well? In that sense, I think the necessity of the measure, and thus its legality, is very much in doubt.
Justice Hub: So there are alternative measures that could be imposed?
Paulussen: Yes, besides criminal prosecution – which is essential to do justice to the victims – you can think of temporary travel bans, area bans, confiscation of travel documents etc. that are not that intrusive. That’s the argument that many people make now: basically, any deprivation of nationality will be arbitrary because it is not necessary or proportionate and (possibly) discriminatory.
Justice Hub: What’s the effect of these policies on people who have immigrated to a country many generations ago, or those who have automatic dual nationality by blood or history? Do they now have the sense that any governments could decide to deprive them of their citizenship?
Paulussen: I think you should look at the country with which one has the strongest connection, which is usually where one has grown up and lived for many years. Some people have the nationality of a country they have never been to, or have a connection with. It does not make much sense to expel someone to a country whose language he or she may not even speak or where he or she may not have any relatives to fall back on, also taking into account how this person is then supposed to take up his or her life again and be a good citizen.
Justice Hub: Do western counties have other mechanisms to deal with these returning foreign fighters?
Paulussen: Yes, I already referred to other administrative measures and criminal prosecution. We should realise that many of the foreign fighters are the product of our own societies. It’s very easy to look away and move the problem to another state. However, Western countries have really enough possibilities to actually deal with this problem. And the possibilities have greatly expanded over the past few years. I think that the advanced legal systems in Western countries are far more capable of dealing with returnees than some think.
Justice Hub: Are there no risks involved in bringing fighters or their families back?
Paulussen: I’m not saying that there are not any risks involved, because people that you would bring back could, of course, be implicated in attacks later. And I also understand it’s very difficult for politicians to convey that message: that we should deal with the problem, rather than looking away from it or leaving it to countries that may have fewer possibilities to deal with this. But I wish there were more politicians who would get the long-term implications. We have a right-wing storm raging the world with more focus on nationalism, national security, national boundaries, national walls. But I don’t think that’s in sync anymore with the world that we have today. We have transnational terrorism and international problems and they need an international response. If all the countries that are involved – everyone – takes a little bit away from that big problem, you have several smaller problems that each are a bit more manageable. This requires true cooperation and solidarity among states, and brave politicians.