Disowning Citizens

Macklin’s kick-off focused ‘exclusively on denationalisation for allegedly disloyal conduct by a citizen, while a citizen’. Most contributions to this debate weighed the predicament of the former citizen against state interests. In my contribution, I offer a typology of cases in which revocation could be sought according to some of the contributors. I contend that disowning of citizens by their states is incoherent, tenuous, or disingenuous.

The first type of case involves acts which, according to Hailbronner, undermine the constitutional order by seriously threatening public safety and state security. Hailbronner contends that individuals performing such acts ‘have given up their attachment to a community by attacking the very fundament of that community, not by merely violating its internal rules of public order’. However, this line-drawing exercise seems to be quite difficult: every crime may cause insecurity, threaten public order, and prevent democratic societies from functioning properly; citizens (and decision-makers, including those entrusted with citizenship revocation) will diverge, based on their ideological biases, as to whether particular crimes cross Hailbronner’s threshold. For instance, did the perpetrators of the Brighton hotel bombing on 12 October 1984 cross the threshold in light of the potential ramifications of Thatcher’s assassination for the stability of the United Kingdom? If so, would a person financing such an attack qualify, too?

Nevertheless, perhaps a ‘core’ case can be identified, such as a criminal conviction for treason. One of the constituent elements of such acts is often that they are committed by citizens qua citizens. For instance, Lord Haw-Haw (William Joyce) could be convicted of espionage for Germany in the Second World War because he possessed British nationality; he unsuccessfully argued that he did not owe loyalty to the Crown.¹ If the basis for Joyce’s conviction was that his crimes against the state were committed as a British national, then disowning Joyce ex post facto seems incoherent: the state must reject the claim that treasonous acts amount to renunciation of citizenship, because that would disable the state from prosecuting the perpetrator for treason (for an analogous argument concerning the legitimacy of disenfranchisement of convicted adult citizens, see my article²).

The second type of case involves crimes (including crimes defined as ‘terrorism’ under international treaties or domestic law) committed by a citizen of state A against individuals or institutions in state B. The fact that the person who has committed such crimes holds the citizenship of state A seems incidental. Consider the attack on the Jewish museum of Belgium in Brussels on 24 May 2014, which is likely to have been carried out by a French national affiliated with ISIL³. ISIL has been designated as a terrorist organisation by the EU, of which France is a member, as well as by the UN. Were France to revoke the citizenship of this member of an internationally designated terrorist organisation, it would be severing legal relations with a citizen even though the citizen’s actions were not directed specifically towards the French state, its institutions, or its population. This seems rather tenuous.

Joppke argued that ‘international terrorists are not criminals but warriors’. But the state exercises its sovereign powers vis-à-vis ‘international terrorists’ qua citizens. The fact that such persons commit acts that are of an international character does not make it more plausible for their state of nationality to legally disown them as a result. Hailbronner argues that ‘[w]hat makes international terrorism so distinctive is … also its relevance for discontinuance of that special relationship established by citizenship.’ I am not quite sure why engagement in international terrorism (such as the ISIL-sponsored attack on the Jewish museum) necessarily or even plausibly indicate that a citizenship bond has been severed by the terrorist. This seems to conflate the fact that their state of nationality perceives (and rightly so) the terrorist’s act as heinous with a direct effect on that state.

The third type of case concerns acts which are committed by a citizen in the name of the Ancien Régime. Following political transformation, the state wishes to disassociate itself from such past acts by dissociating itself from the perpetrators. As Bauböck rightly notes, Hitler’s posthumous denationalisation by either Germany or Austria would have been considered ‘a denial of responsibility for his crimes and their consequences’. In addition to the revocation’s outward-looking dimension (towards the international community), it has an inward-looking dimension too. When Augusto Pinochet stood trial in in 2004, he was charged with crimes committed by him as head of the military junta which ruled Chile after the 1973 coup. He died in 2006 before the conclusion of his trial. Let’s imagine that Pinochet had another (nominal) citizenship, and that his conviction would have resulted in his denationalisation. This would have seemed, rightly, as an attempt to undermine the fact that these acts were committed in the name of the Chilean state.

Paskalev asserted that, ironically, the ‘softness of citizenship revocation makes it appear quite inappropriate for the case of terrorists’. However, even if (some) terrorists may be blasé about losing their citizenship, we ought to be concerned about states’ eagerness to wash their hands of them.