EXPLAINER: Does Citizenship-Stripping Make Sense, And Is It Even Legal?

With the news overnight that an Australian citizen who followed her husband to Syria, Zehra Duman, wants to return to Australia with her two young children, Associate Professor of Law at Bond University Danielle Ireland-Piper looks at the global perspective on stripping a person of their citizenship rights.

Shamima Begum left the United Kingdom in 2015 with two school friends to join Islamic State in Syria. She was 15 at the time. In 2019, age 19, she asked to return home. The decision was made, however, to revoke her British citizenship. She was pregnant and her baby subsequently died in a refugee camp in March 2019.

However furious we feel at the criminal actions of our fellow citizens and however justified that fury, is citizenship-stripping actually helpful to anyone?

Citizenship-stripping laws are a response to the violent extremism of organised non-state actors, such as the group commonly referred to as Islamic State, Daesh, IS or ISIS. Reportedly, about 70 per cent of IS suicide operations in Syria were conducted by foreign nationals, and foreign nationals were also those most likely to carry out excessively brutal operations, such as beheadings, torture and suicide missions.

As at 2015, the International Centre for the Study of Radicalisation estimated over 20,000 foreign nationals have travelled to Iraq and Syria to fight.

 

Can the government exercise authority over citizens abroad?

International law allows countries to assert legal authority over their citizens abroad. This is the ‘Nationality’ principle of jurisdiction. This makes sense. Individuals are more mobile than ever before. They can live and work in different parts of the world. They may have a connection to more than one country. Similarly, serious crimes, such as acts of terrorism, need know no national boundaries and armies can attract foreign recruits.

Some countries, such as Australia and the United Kingdom, have responded to their citizens serving as foreign recruits by legislating to allowing for the revocation of citizenship. However, if a country is entitled to regulate its citizens abroad, then is it neglecting its responsibilities by removing those citizens from its realm of responsibility?

 

What does international law say about citizenship?

International law is generally neutral toward a grant of nationality, provided the granting State does not breach certain international obligations, such as those under the 1961 Convention on the Reduction of Statelessness (‘1961 Statelessness Convention’). International law is not, however, devoid of content on nationality and citizenship.

A number of international and regional instruments make specific reference to citizenship or nationality. For example, Article 15 of the Universal Declaration on Human Rights provides that “everyone has the right to a nationality” and that “no-one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”. The United Nations Human Rights Council (UNHRC) has confirmed that this establishes the right to nationality as a fundamental human right. Further, Article 12(4) of the International Covenant on Civil and Political Rights provides that “no-one shall be arbitrarily deprived of the right to enter his own country”.

 

Does international law permit citizenship revocation?

In a report on ‘Human Rights and Arbitrary Deprivation of Nationality’, the UNHRC has also stated that to comply with international law, any deprivation of nationality must meet certain conditions. The deprivation of citizenship should be: (a) for a legitimate purpose; (b) the least intrusive instrument to achieve the desired result, and (c) proportional to the interest to be protected (UNHRC, 2009).

Importantly, international law strictly limits the circumstances in which loss or deprivation of nationality leading to statelessness serves a legitimate purpose. Citizenship is widely understood as the “right to have rights” and so where deprivation of nationality leads to statelessness, the consequences for the individual are particularly severe.

Article 8 of the 1961 Statelessness Convention, however, does allow deprivation of nationality even if it leads to statelessness in certain circumstances. These circumstances are limited to to where the person has:

• voluntarily acquired another nationality;
• committed fraud or misrepresentation in obtaining the nationality;
• performed services to a foreign government or military in contravention of an express prohibition;
• been absent for 7 years or more under very strict conditions; or
• engaged in conduct ‘prejudicial to the vital interest of the State’.

However, each of these exceptions is subject to the right to a fair hearing by a court of other independent body.

Did Shamima Begum receive a fair hearing by an independent body? Was consideration given to the fact the she was a child at the time of her radicalization? ISIL is, as Priyamvada Gopal writes, “a patriarchal death cult in whose care, needless to say, [Shamima] was likely subjected to significant amounts of ideological control despite exercising an obstinate child’s will in joining them”.

While the decisions Begum made are reprehensible and would likely warrant criminal prosecution, does citizenship-stripping make sense?

 

Does citizenship-stripping make sense?

Citizenship revocation is problematic because it is an abdication of a country’s responsibility to prosecute, reform and rehabilitate its citizens. Not only does this undermine the rule of law, but it may also be counter-productive because isolating people can make them more vulnerable to (further) radicalisation.

 

Intelligence sharing

One genuine motivation for revoking citizenship is to enhance military operations through expanded intelligence sharing. For example, forces are restricted from sharing intelligence on its own citizens (Brennan, 2015). Therefore, revocation of citizenship of persons fighting with ISIS may allow such forces to share and act on intelligence more freely.

Richard Barret, a former counter-terrorism chief at MI5 and MI6, however, argues that citizens returning from Iraq and Syria are the best placed to dissuade others from going to fight. In the context of British legislation, he argued as follows:

These are the people who can expose the true nature of the Islamic State and its leadership. Their stories of brutality and the motives behind it will be far more credible and persuasive than the rhetoric of men in suits. These repentant fighters need a way out, and although the law must take its course, they need to know there is a place for them back at home if they are committed to a non-violent future (Townsend, 2014).

Hughes also makes a similar observation in the Australian context:

The Australian Government is right to be concerned about the activities of violent jihadists and to consider its options. But it would be wise to consider carefully the collateral damage from any changes to citizenship law before deciding to use revocation as a tool. Prosecution, conviction and incarceration of those who have broken Australian law are likely to be much more effective weapons (Hughes, 2015).

Similarly, Elliot Brennan has suggested that, “stripping citizenship may be stripping nations of the best assets available to them in counterterrorism”.

 

The mechanics of substitution

Another problem with citizenship-stripping is what criminologists refer to as the “mechanics of substitution”. This can occur where effective regulation of criminal activity in one venue leads those engaged in such activity merely substituting one venue for another.

If countries decline to take responsibility for the actions of their nationals by simply revoking their citizenship, the burden of responding is shifted rather than resolved — and potentially to countries less willing or able. In short, revoking citizenship may simply free up individuals to pursue extremist causes and political violence elsewhere.

 

Devaluing citizenship

There is also a risk of devaluing citizenship and allegiance. This, in turn, weakens social cohesion. Under the Australian regime, only dual citizens can be stripped of their citizenship. This creates a tiered hierarchy of Australians and may cause division in our community on basis of race and ethnicity. Dual citizens may invest less time and energy into being a productive and devoted citizen if citizenship-stripping is an ever-present possibility. Some communities may feel targeted and alienated. This can make a person more vulnerable to radicalisation and serve to create divides between and within communities.

It is not yet clear whether Australian Zehra Duman is a dual citizen, and therefore at risk of citizenship-stripping. However, in any event, when our children do wrong in the homes of our neighbours, we should bring them home and fulfil our responsibilities as guardians and rule-enforcers. The same may also be true of our citizens.