Should Governments Take Away Foreign Fighters’ Citizenships?

By Zsófia Baumann

Considered the most extreme measure used against foreign fighters, revoking citizenships is highly controversial both legally and ethically. Its effectiveness is also questionable, therefore, European governments prefer taking away passports as a preventive action or punishing their foreign fighters upon return. So far, only a few countries introduced legislation that goes as far as stripping returning fighters from their citizenships.

As the Islamic State attracted more Westerners to take up arms than ever before, some European countries, such as Belgium, France and the United Kingdom have witnessed an unprecedented number of citizens joining the war in the Middle East. The threat of returning foreign fighters prompted Western countries to introduce a variety of measures to tackle the foreign fighter problem and preserve national security. According to Lorenzo Vidino, who compared security responses in eleven countries, different measures range from withholding travel documents prior to suspected travel or arrest upon return, to revoking fighters’ citizenships.

In most European countries and the United States, travelling to a war zone is not a crime. However involvement with a terrorist group or activity is. Therefore, foreign fighters are only prosecuted upon their return if their involvement abroad can be proven. However, since travelling to Syria or Iraq implies that one might want to get involved in terrorist activities, when the intent of travelling is suspected, authorities in most cases have the right to withhold passports or travel documents.

The efficiency of counterterrorism measures with regards to foreign fighters depends on what the state wants to achieve with it. Some countries, such as France, focus on preventing suspected foreign fighters from leaving with court orders or by withholding travel documents. Also, monitoring the movements of these suspects can provide more information on the activities of suspected terrorists and can help further identify other members in a network. Other states focus on preventing returning foreign fighters from re-entering their home countries. These states, namely the United Kingdom, Canada and Australia, have implemented, or proposed to implement, measures that target suspects’ citizenship.

Denying entry to one’s home country and therefore forcing the person to “stay outside,” however, has multiple legal implications, regarding both the person in question and the state. Revoking one’s citizenship is considered to be the most extreme measure used against foreign fighters. Domestic legal protections surrounding one’s nationality varies from one country to another, often with distinctions between dual citizens and people with single citizenship, or between citizens born in the country and those naturalized.

The act of revoking one’s citizenship could be, in principle, done at three stages: before departure, if it is suspected that the individual might join a terrorist group or engage in terrorist acts while abroad, during fighting or upon return. As withholding travel documents aims to prevent an individual from leaving the country, revoking citizenships would be considered effective after the individual already left or upon his return. This implies that the decision to deprive people of their citizenship is used as a punishment, while at the same time also act as a deterrent for future foreign fighters.

Revoking citizenships as punishment

Revoking someone’s citizenship as a punishment implies that being a citizen of a country is a privilege that has to be earned, not a fundamental right. Citizenship, and the conditions under which it can be granted or revoked, have usually been under the state’s sovereignty, as long as it did not interfere with the rights of other states. However, the emergence of a robust international human rights system (e.g. the United Nations’ 1961 Convention on the Reduction of Statelessness) changed the rights of states and bound them by international obligations that protect individuals from becoming stateless. As most basic political and civil rights are attached to one’s citizenship, statelessness would effectively cause one to lose all rights other than those generally recognized in international law as basic human rights.

The case is slightly different for those who possess dual citizenships, as losing one would not render them stateless. States have thus been more inclined to revoke citizenships of foreign fighters who are citizens of another country as well. This is the case of the Netherlands and Canada, where dual citizens convicted of terrorist offence or espionage can be deprived of their citizenships. Another, special case is the legislation introduced in 2014 in the United Kingdom, according to which an individual could be deprived of his citizenship, if the citizenship has been obtained through naturalization, even if this would render him stateless. This legislation is not only concerning because it could result in statelessness, but because it creates two classes of British citizens: the born and the naturalized, with the latter’s status being somehow legally “weaker.”

The main question is whether punishing someone with taking away their citizenship would solve the problem of Westerners joining the wars in the Middle East. There are two cases. The first is when the person is a dual citizen and thus would become a citizen only of another country. In this case, the United Kingdom, for example, would simply transfer the liability onto another country, with no guarantees on how this country will handle the terrorist threat, or the prosecution of the foreign fighter. Would this step necessarily make the United Kingdom or the world a safer place?

The other case is if the person suspected of being engaged in terrorism would become stateless as a result. In this scenario, the now stateless foreign fighter has two options: remain in the war zone and continue fighting or look for a non-Western state (a non-EU country in this case) that he can enter. The former might actually back-fire, if the foreign fighter was disillusioned by the terrorist group and wanted to escape the war, but now has nowhere to flee.

More importantly, revoking foreign fighters’ citizenships might avoid a possible terrorist attack at home, but it can also mean that the plot just moves to another country. Moreover, the stateless foreign fighter could still easily keep in touch with his connections at home and assist in a future attack. Using the measure as a punishment does not address the underlying issue or offer a solution to the foreign fighter problem. It deprives the person from a chance to return home and reintegrate into society. It would make it more difficult to enter and re-settle in a different country, as states would understandably be reluctant to take in someone who lost their citizenship on the grounds of possible links to terrorism. Applying for citizenship in another country would prove to be more difficult, even for someone who might be legally eligible. This leaves us with radical individuals, shut out from the judiciary system, never being prosecuted for their crimes, while also deprived of all disengagement and deradicalization channels, with no prospect of ever being able to reintegrate into society.

Revoking citizenships as a method of deterrence

Revoking someone’s citizenship could also be used as a method of deterrence. It would definitely convey a strong message: once someone leaves, there is no way back. In this case this would only be effective if prospective foreign fighters would actually want to come back. In some cases, it has been reported, that foreign fighters in Syria throw away or burn their passports upon arrival as a way to symbolize the irreversibility of their act. Those planning to leave already know they would most likely face prosecution and imprisonment if they return and get caught, and yet they leave anyway. For these terrorists, it does not really matter whether they are deprived of their citizenships, as they usually do not have the intention to return. However, for those unsure of their decision, it might.

Another issue of legal concern is the age of foreign fighters. This fourth generation of foreign fighters have shown an exceptionally high proportion of minors (under the age of 18). According to most recent data by The Soufan Group, there are 56 German children in the Caliphate, half of which are under the age of 5, while the number of French children is as high as 460. Some minors (mostly teenagers) leave without the consent or even knowledge of their parents, but others (mostly younger kids) leave as members of whole families seeking a new life in the Islamic State. In the latter case, it is questionable whether the prospect of their children losing their European or American citizenships would deter parents from leaving and taking their whole families with them. Most of the time they leave as they do not see a future for themselves or their children in their home country, in which case revoking citizenships would not work as a method of deterrence. In the case of underagde teenagers leaving to pursue the “romantic” idea of becoming a foreign fighter, or a bride of one, certain measures can and have been put into place.

In Austria, a 2014 amendment to the border control law allows border authorities to confirm that minors have received parental permission to leave the country when there is a suspicion that they might be traveling to join fighting activities abroad. Border authorities are empowered to deny departure to a minor and withhold his or her passport until an investigation is complete. The same measure was introduced in France in early 2017, expanding its scope to include not only French minors, but also those who are foreign citizens living in the country. In the case of underage teenagers, however, deterrence could have a larger impact on parents encouraging them to pay bigger attention to their children suspected of joining a terrorist group abroad. In most countries’ legal systems, punishment for minors are usually less harsh for the same crime as it would be for adults, due to their impressionability and lack of capability to distinguish right from wrong. Therefore revoking their citizenship as a punishment could be considered as a disproportionate and even excessive measure.

Countries where it is already used

There are certain countries with existing legislation or plans to amend legislation on revoking citizenships of those who are suspected of travelling abroad or proven to have already left to join fighting abroad. These can either affect the foreign fighters themselves (single or dual citizens) or their close family members, such as their children. As of today, only two countries, the United Kingdom and Canada, have implemented new citizenship laws that allow their governments to revoke the citizenship of dual nationals who are suspected foreign fighters of the Islamic State. The Strengthening Canadian Citizenship Act of 2014 states that Canadian citizenship can be revoked from dual citizens for joining “an armed force or organized armed group engaged in armed conflict with Canada.”

The United Kingdom enacted legislation which allows the government to strip dual citizens of their citizenship following the 2006 London bombings. In 2014 the country went even further, and the laws were amended to also include citizens with only one nationality. The British Nationality Act 1981 makes it possible for the Home Secretary to deprive “naturalized citizens” of their citizenship, on charges of acts of terrorism or espionage, even if it renders a person stateless, as long as they are in the process of obtaining another citizenship. At the time of the implementation of the legislation in 2014, Immigration Minister Mark Harper stated that “Citizenship is a privilege, not a right” and that “these proposals will strengthen the home secretary’s powers to ensure that very dangerous individuals can be excluded if it is in the public interest to do so.” As previously mentioned, this legislation not only leads to statelessness, but creates a division between British citizens: the born and the naturalized.

A similar type of discrimination exists in France as well. Under French law, authorities can strip French citizenship from an individual who has dual nationality if he has been convicted on charges of terrorism either before, or within 15 years of becoming a citizen. The measure was introduced via a court ruling by the Constitutional Council early 2015, following a series of country-wide terrorist attacks. However, it has also been criticized due to its distinction between born and naturalized French citizens.

Similar proposals were at some point being considered in other European countries as well, such as Austria, Belgium, the Netherlands and Norway. In 2014, the Norwegian Minister of Children and Equality announced that the country was planning to revoke the citizenship of individuals engaged in terrorist activities and wars in the Middle East. Norway clearly intended this move as a deterring factor, as the Minister was quoted saying: “this is a strong signal to people wanting to take part in terror operations and wars.”

While Australia does not have legislation revoking the citizenship of its foreign fighters, it has proposed a legislation targeting those closely associated with suspected foreign fighters. However, according to the Convention on the Reduction of Statelessness, a state cannot revoke the nationality of the associate, unless he himself has committed something. There are also legal protections under international law for the protection of rights of women and children, which would also render such a legislation illegal under international law. Also, it is rather questionable, whether it is ethical to punish someone for a crime that they have not committed, especially if the person in question is a child. The possible deterring effect of such legislation is also highly questionable.

Why isn’t it more widely implemented?

There are two main concerns from the state’s standpoint regarding whether revoking citizenships should be used as a measure to deter foreign fighters from engaging in terrorism abroad or to punish them for already having done so. First of all, it is highly questionable whether it is an efficient way to curb this phenomenon or, on the contrary, if it would be counterproductive. Second, the principle of proportionality, which refers to the severity of the punishment being proportionate to the seriousness of the crime, is another factor that has to be taken into consideration by states. In most cases it is difficult to prove if and to what extent a foreign fighter is involved in terrorist activities while at home and especially later, after leaving. Therefore, countries concerned take precaution and have been reluctant to go as far as implementing such extreme measures.

As to all policy measures, there are also advantages to stripping foreign fighters of their citizenships. From the state’s point of view it is a low cost measure, especially compared to prosecuting and sentencing suspected terrorists to prison. It also saves the state time and money to implement complicated legal steps such as revoking passports, denying one’s right to enter his home country or monitoring movement and internet activity by intelligence services. Once the foreign fighter is no longer a citizen of the state, it makes it easier for states to target a suspected terrorist in a drone strike or similar extra-judicial killing, since they are no longer bound by domestic laws that prevent the killing of citizens.

However, revoking citizenships won’t solve the issue, nor will it address underlying grievances. Furthermore, it will create additional problems, with disillusioned foreign fighters forced to stay in war zones. With the possibility of becoming stateless, the cost of exiting the conflict rises for these individuals and it further disincentivizes them from renouncing their participation in terrorist activities abroad. It also prevents disengagement efforts, as disillusioned foreign fighters, who do leave the conflict behind, have no home country to return to and, therefore, have no access to such programs. Hence, it not only hinders the solution of the foreign fighter problem, but also adds to it by creating a group of alienated and traumatized people who have no opportunity to return to a normal life in society.

From an international law standpoint, revoking citizenships creates a vacuum of responsibility, as the burden of dealing with a stateless foreign fighter now falls on either of the following: 1) the international community, 2) the country where he is operating or located (e.g. Iraq or Syria) or 3) the country which he is still a citizen of. If this happens to be a country at war or a failed state, it further complicates the issue, as bringing the foreign fighter to justice could prove to be impossible. Even if there is effective judicial system in place, concerns can still arise regarding whether or not civil and human rights are fully respected throughout the prosecution.

States have obligations. Obligations towards their citizens, not only to protect them, but also to punish the ones that have committed a crime. States who have knowledge of their citizens committing acts of terrorism are obliged to pursue, apprehend and prosecute these individuals in order to protect their citizens, national security and the international community. If, by revoking returning foreign fighters’ citizenship and thus preventing them from entering the country, the state makes it more difficult for its security services to apprehend the suspect, then it is not meeting its legal obligations.

It thus becomes questionable whether stripping individuals of their citizenship is an efficient measure to either punish foreign fighters or to deter others from leaving. It is hard to determine who among foreign fighters intend to return as a result of disillusionment and who seek to carry out acts of violence in their home countries. However, without a citizenship, the former are not only deprived of an opportunity to reintegrate into society, but are also forced to either live on as members of a terrorist group in a war zone, as citizens of another country that they might have no connection to, or as stateless individuals with no domestic and barely any international legal protections.

Cover Picture: a British passport, © tentwo.teneight / flickr