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2016 | OriginalPaper | Buchkapitel

23. Foreign Fighters and the Deprivation of Nationality: National Practices and International Law Implications

verfasst von : Laura Van Waas

Erschienen in: Foreign Fighters under International Law and Beyond

Verlag: T.M.C. Asser Press

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Abstract

While most people experience their nationality as a fixed and integral feature of their identity, it is not necessarily a permanent or immoveable characteristic. Indeed, most States’ nationality laws feature a set of rules—alongside those which elaborate the conditions for acquisition of nationality—which stipulate the grounds upon which a national can lose or be deprived of that nationality. With concern rising about international terrorism and now the phenomenon of foreign fighters, governments have been rediscovering nationality policy as a potential instrument in the protection of their national security interests. This chapter highlights a range of States’ perspectives on the deprivation of nationality and discusses recent developments in national-level debate and/or policy around the deprivation of nationality from foreign fighters. It then goes on to explore the international law implications of an expanded use of such deprivation powers. In particular, the chapter looks at the international law prohibition of arbitrary deprivation of nationality and what this requires of States that would seek to deprive a person of nationality in response to their engagement in an armed conflict in a third country. It discusses how international legal standards relating to the prevention of Statelessness restrict States’ powers of deprivation of nationality and asks what the significance is of such restrictions for the enjoyment of nationality by dual nationals. Finally, the chapter also assesses to what extent different approaches to the deprivation of nationality from foreign fighters pose a challenge from the perspective of the international law principle of non-discrimination.

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Vorheriges Kapitel MENA Countries’ Responses to the Foreign Fighter Phenomenon

Nächstes Kapitel Caught in the Crossfire: The Impact of Foreign Fighters on Internally Displaced Persons, Asylum Seekers and Refugees from Syria and Iraq

Ard van der Steur, Member of Parliament for the VVD (conservative-liberal party), 26 February 2015. The original statement, in Dutch, was: ‘Kun je, onder bepaalde omstandigheden, mensen ook hun nationaliteit ontnemen, omdat dat weergeeft dat je geen behoefte meer hebt aan die mensen in jouw eigen land?’ Footage available at: http://nos.nl/video/2021581-oppositie-fel-tegen-vvd-over-stateloosheid.html. Note that van der Steur has since taken up the post of Minister of Security and Justice.

Nationals engage in many forms of dangerous, undesirable and criminal behaviour without their claim to nationality being questioned. Yet a common feature of the terrorism discourse is the notion that the terrorist, even if home-grown, is not just a bad citizen but is “always and already foreign”. Macklin 2014, p. 2. See also Spiro 2014, p. 2181.

US Supreme Court, Trop v. Dulles 365 US 86 (958).

See for the definition of foreign fighters Chap. 1 by the editors in this volume.

Please note that throughout this chapter, as in much of the other writing on this subject, the terms nationality and citizenship are used interchangeably and both denote a specific type of legal bond between a person and a State.

See, for instance, Chap. 3 by Flores in this volume.

de Graaf 2014. She also points to the better known example of those who went to fight in the Spanish civil war—whereby many Dutch men who fought against Franco were subject to deprivation of nationality, while those who fought for him were not, demonstrating that the heart of the matter is one of conflicting ideologies or loyalty rather than purely the fact of joining a foreign war.

Note that such a measure is distinct from the withdrawal of a passport or imposition of a travel ban—measures which may also be pursued for public policy reasons but which leave the person’s nationality intact.

There are several regional analyses available of present-day provisions regarding deprivation of nationality, including, for Europe, European Union Democracy Observatory on Citizenship, Database—Comparing citizenship laws: loss of nationality, available at: http://eudo-citizenship.eu/databases/modes-of-loss; for Africa, Manby 2010; and for the Middle East and North Africa, van Waas 2014.

This is demonstrated, for instance, by the trend that has been evident in the United Kingdom since 2002 towards extended powers and increased use of deprivation of nationality in the interests of national security, long before the threat of IS. See, for instance, Bureau of Investigative Journalism, Citizenship Revoked, series of reports available at: http://www.thebureauinvestigates.com/category/projects/deprivation-citizenship/. Other examples of this trend can be found for instance, in Geneva Academy 2014; van Waas 2014; Manby 2015; UN Human Rights Council 2013.

The US saw two attempts to pass a bill which would give the State the power to deprive terrorists of their nationality, in 2010 and 2012, but both failed. US scholar Peter Spiro’s assessment is that it is unlikely that such a policy will ever be adopted in the US, in part because “citizenship is seen as sacrosanct, perhaps even more precious than life itself”. Spiro 2014, p. 2170.

Leading one commentator to point out that “British nationals now hold the least secure citizenship of any Western country”. Gibney 2015a.

Section 40 of the British Nationality Act 1981, as last amended on 28 July 2014.

[Einem Staatsbürger, der freiwillig für eine organisierte bewaffnete Gruppe aktiv an Kampfhandlungen im Ausland im Rahmen eines bewaffneten Konfliktes teilnimmt, ist die Staatsbürgerschaft zu entziehen, wenn er dadurch nicht staatenlos wird]. New paragraph in Section 33 of the Citizenship Act 1985.

Section 10.1(2) of the Strengthening Canada Citizenship Act, adopted on 19 June 2014.

Section 10(2). Note that in all three laws—those of the UK, Austria and Canada—there is special provision for the circumstance in which a person would be rendered Stateless as a result of the withdrawal of nationality. This element is discussed later in this chapter.

Bauböck 2015.

Macklin 2015; Spiro 2015; Ziegler 2015.

Paskalev 2015.

Macklin 2014, p. 5.

Joppke 2015.

Hailbronner 2015.

Spiro explains how ‘in the terror context, which of course has been situated as ‘war’, hostile forces have been labeled as ‘enemies’ (legally and colloquially)’. Spiro 2014, p. 2181. The strong historic link between war and denationalisation is illustrated, for instance, in Kerber’s review of US nationality policy over time. Kerber 2005.

In one of the Dutch law reform proposals, it was argued that new powers of deprivation of nationality were needed because ‘the outdated doctrine of ‘foreign military’ is not sufficient to cover the forms of armed conflict which are currently dominant’. See the Motie Dijkhoff, submitted to parliament in May 2013, as cited in de Groot and en Vonk 2013, p. 398.

Nationality has been defined by the International Court of Justice as ‘a legal bond, having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties’. International Court of Justice, Nottebohm Case (Liechtenstein v. Guatemala) [1955] ICJ Rep 4.

It is of interest to note that the European Convention on Nationality recognises ‘voluntary foreign military service’ as a legitimate ground for withdrawal of nationality, whereas it does not accept deprivation in response to the commission of a crime.

This angle was debated in the US context, where Ted Cruz urged, in 2014, that ‘Congress should make fighting for or supporting ISIS an affirmative renunciation of American Citizenship’. As cited in Sykes 2015.

Ibid. See also the various contributions in Macklin and Bauböck (eds) 2015, which all comment in one way or another on the national security angle of denationalisation.

One of the proposals tabled in the Netherlands would allow for deprivation of nationality where a person has participated in the activities only of particular terrorist organisations which are considered to pose a threat to the Dutch State because they are ‘waging a violent struggle against the entire West and the values that the Western world stands for’ [een geweldadige strijd voeren tegen het gehele westen en de waarden waar de westerse wereld voor staat]. Minister of Security and Justice, ‘Commentary to the bill for the amendment of the Dutch Nationality Act with respect to the withdrawal of Dutch nationality in the interests of national security’ [Memorie van Toelichting op Wijziging van de Rijkswet op het Nederlanderschap in verband met het intrekken van het Nederlanderschap in het belang van de nationale veiligheid], December 2014.

Sykes 2015, p. 11.

The motivation behind, among others, the 1930 Hague Convention on certain questions relating to the conflict of nationality laws.

As expressed in article 15 of the Universal Declaration of Human Rights and acknowledged in the overwhelming majority of human rights instruments adopted since.

The development of international law on nationality is dealt with in depth elsewhere, including in Edwards and van Waas 2014; Spiro 2011.

This flows from the right of everyone to a nationality, but is also given further content by a dedicated UN instrument adopted to guide states in the avoidance of statelessness: the 1961 Convention on the Reduction of Statelessness.

This prohibition can be found in article 15 of the Universal Declaration of Human Rights and various regional human rights instruments. A series of UN Human Rights Council Resolutions has also been dedicated to this principle.

UN Human Rights Council 2013. Note that where deprivation of nationality is pursued on discriminatory grounds, this will amount to a prima facie finding of arbitrariness. Moreover, where deprivation of nationality results in Statelessness, this can influence the arbitrariness ‘test’ and make it more difficult to satisfy. The implications of the international norms on non-discrimination and the avoidance of Statelessness are discussed separately later.

See in this respect, for instance, the expert testimony given by Prof. Samuel Abad Yupanqui in the case of the Inter-American Court of Human Rights, Ivcher Bronstein v. Peru, Series C No. 84, 6 February 2001, p. 26. Here, in regard to a Peruvian regulation, Prof Yupanqui states ‘the regulation indicates that the President of the Republic may cancel naturalization, without stating the cause, when national security so requires, a very broad and general concept, that could make the right to nationality meaningless’ (emphasis added). Spiro 2015; Schuck 2015.

Brandvoll 2014, p. 215; Hailbronner 2015.

See, for instance, article 8(4) of the 1961 Convention on the Reduction of Statelessness; as well as international human rights law provisions relating to the right to an effective remedy; See further UNHCR 2013, paras 25–29.

Both of these problems have been identified with respect to the UK denationalisation procedure. See Geneva Academy 2014, p. 57.

See, for instance, Joppke 2015; UNHCR 2013, para 27; ILEC Guidelines 2015, p. 6. As seen above, Canada has made deprivation of nationality contingent on a criminal conviction, but this is not the case in regard to the other new deprivation powers which have been introduced to date.

Brandvoll 2014; Macklin 2014. The latter also outlines the due process issues that can be identified with respect to the new Canadian powers of deprivation of nationality, citing a Canadian immigration lawyer, Mario Bellissimo, in concluding that ‘a citizen will have greater access to the courts to challenge a parking ticket than the deprivation of citizenship’ (p. 28).

Geneva Academy 2014. See also Brandvoll 2014, p. 214.

These Draft Articles were adopted by the International Law Commission at its 66th session in 2014. The text is available at: http://legal.un.org/ilc/texts/instruments/english/draft%20articles/9_12_2014.pdf. See further on the question of expulsion following deprivation of nationality also UN Human Rights Council 2013, para 26.

UN Human Rights Committee 1999.

Geneva Academy 2014, p. 56. Other commentators have also picked up on this, suggesting that the UK has ‘reportedly undertaken denationalisation by way of facilitating US drone strikes against (former) British citizens’. Spiro 2014, p. 2182; Bureau of Investigative Journalism, Citizenship Revoked, series of reports available at: http://www.thebureauinvestigates.com/category/projects/deprivation-citizenship/..

See further in this context, Office of the United Nations High Commissioner for Human Rights 2008.

See further also Chap. 13 by Krähenmann in this volume.

UNHCR 2013, para 19.

See further Chap. 20 by Paulussen and Entenmann, Chap. 21 by Zelin and Prohov, Chap. 22 by Gartenstein-Ross and Moreng in this volume.

Macklin 2014, p. 7; Spiro 2014, p. 2183.

Spiro 2014, p. 2176.

Ibid., p. 2185.

See, for instance, Hailbronner 2015; Joppke 2015; Paskalev 2015; Macklin 2014.

This perspective is explored in Ziegler 2015; de Lange 2014.

See further UNHCR 2013; ILEC Guidelines 2015. Also the case of the European Court of Justice, Janko Rottmann v. Friestaat Bayern, C-135/08, 2 March 2010.

The Inter-American Court of Human Rights has, for instance, pointed out that with regard to article 20 of the American Convention on Human Rights, ‘the protection therein accorded the individual against the arbitrary deprivation of his nationality, without which he would be deprived for all practical purposes of all his political rights as well as of those civil rights that are tied to the nationality of the individual’ (emphasis added). Inter-American Court of Human Rights, Castillo Petruzzi et al. v. Peru 30 May 1999, Series C No. 52, para 100. See also UN Human Rights Council 2011.

As evidenced by the 1930 Hague Convention on certain questions relating to the conflict of nationality laws.

The United Nations High Commissioner for Refugees is spearheading these efforts through its #ibelong campaign which seeks to end Statelessness by 2024. See http://ibelong.unhcr.org.

See on the human rights impact of Statelessness, among others, UNHCR 2014.

UN Human Rights Council 2013, para 4.

Goodwin-Gill 2014; Gibney 2015b.

Gibney 2015a.

Brandvoll 2014, p. 215.

This can only be retained as a ground for deprivation if it already existed in the State’s law at the time of accession and an express declaration is made to preserve the clause. Article 8(3) of the 1961 Convention on the Reduction of Statelessness. In the United Kingdom, there has been debate among legal scholars as to the legitimacy of re-introducing such a ground for deprivation of nationality which results in Statelessness, after a period in which the law did not allow for this eventuality. See, for instance, Goodwin-Gill 2014.

Article 7 of the European Convention on Nationality.

This creates a difference in security of citizenship between mono-citizens and dual-citizens, the implications of which are discussed in Sect. 23.3.3.

UNHCR 2013, para 7.

Macklin 2014, p. 26.

de Groot and en Vonk 2013. As de Groot points out, a recent decision to stop registering Dutch citizens’ second nationality in the population register will add to the problems encountered in practice.

Recall the UK example in Sect. 23.2.1. See also the recent case in France in which the Constitutional Court upheld the deprivation of nationality from dual Moroccan and naturalised French terrorist Ahmed Sahnouni el-Yaacoubi. Reuters 2015.

Rubinstein and Lenagh-Maguire 2014.

See Janko Rottmann v. Friestaat Bayern, 2010; Shaw 2015; de Lange 2014.

For instance, Article 7(4) allows naturalised citizens to lose their nationality following long-term residence abroad (and subject to certain conditions), even if this leads to statelessness.

Article 5(2) of the European Convention on Nationality.

Ivcher Bronstein v. Peru, n. 37 above, at para 90.

Peter Spiro argues a right to dual nationality is emerging from present-day international practice in Spiro 2010.

The 1961 Convention on the Reduction of Statelessness, for example, is not concerned with the regular operation of rules relating to loss and deprivation of nationality but imposes safeguards where such loss or deprivation would leave a person Stateless—i.e. where it concerns a person’s only nationality.

Macklin 2014, p. 49.

Macklin illustrates this as follows: ‘the crime of treason is no graver when committed by a dual rather than a mono-citizen, so allocating the punishment according to that criterion is arbitrary’. Ibid., p. 37. See also Spiro 2015.

See Sect. 23.2.2.

Gibney 2015a; Macklin 2014; de Groot and en Vonk 2013.

See on the dangers of ethnic profiling and the enjoyment of citizenship in the context of anti-terrorism measures, the example of Kenya and the denial of ID documents to Kenyan Somalis and coastal Muslims following the Westgate Mall attack, as outlined in Manby 2015.

According to media reports on law reform plans announced by the Australian Prime Minister: ‘Mr Abbott said new proposals would also target ‘hate preachers’, referring to groups that incited religious or racial hatred’. BBC News Australia 2015.

Under international law, ‘states must avoid applying [deprivation] provisions in a manner which would infringe other human rights norms and standards, such as freedom of expression’. UN Human Rights Council 2013, para 13. See also UNHCR 2013, para 71.

As reported in Alakhbar English 2015.

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