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UK Measures Rendering Terror Suspects Stateless: A Punishment More Primitive Than Torture

05 Jun 2014

The issue of “Foreign Terrorist Fighters” (FTFs) leaving to and coming back from the Syrian battlefields is climbing the agenda in more and more countries. Officials use a broad spectrum of measures to address the phenomenon, from customised plans to detach certain individuals from their jihadist surroundings, conspicuous surveillance and disruption by the police, to various forms of pressure, prosecution and administrative law measures. In respect of the latter, governments are increasingly exploring the use of powers to regulate access to citizenship as a means to try to influence individual behaviour or mitigate the terrorist threat. In the Netherlands, for example, the Minister of Security and Justice, Ivo Opstelten, explained to Parliament in March 2013 that “Dutch nationals can be stripped of their citizenship if they have been convicted of a terrorist offence, provided they also hold another nationality. Citizenship cannot be revoked if this would render an individual stateless”, amid discussions about whether these powers should be expanded. In Austria, France and Canada, there is currently debate about the need to amend the nationality laws to make it easier to deprive FTFs and (suspected) terrorists of their citizenship. Meanwhile, in the UK, Home Secretary Theresa May has managed to push through law reform that goes one step further, and arguably a step too far, in the fight against terrorism: it is not just a person’s British citizenship which may be under threat, but his or her very belonging to any state at all. The UK has removed a critical safeguard that protected people from being deprived of nationality if this would render them stateless. These political debates and policy changes around citizenship in the context of the fight against terrorism expose some worrying tensions in the relationship between people and states today. Human rights law recognises nationality as a fundamental right and statelessness is known to have a severely detrimental impact on the enjoyment of a wide range of other human rights. This is why the UN has adopted conventions dedicated to the prevention of statelessness and the protection of stateless persons. Nevertheless, governments still treat nationality as a privilege which a person must (continue to) earn. Moreover, at a time when the international community is devoting increasing attention to the fight against statelessness, states are allowing important safeguards against statelessness in their citizenship regimes to be eroded on grounds of "public interest".

The idea of using citizenship policy as a tool to achieve certain political or public policy ends is not a new one. In the 1930s in the Netherlands, for instance, the government responded to the problem of Dutch volunteers participating in the Spanish Civil War (fighting with the communist brigades against Franco), by actively identifying fighters and stripping them of their Dutch nationality. Many dozens were left stateless by this measure, although following the disbanding of foreign volunteer fighters after the war, the Netherlands nevertheless concluded an agreement which allowed them to return. Later, the Dutch government was ultimately also forced to deal with the “misery of statelessness” these former fighters endured through re-naturalisation policies adopted successively into the 1960s. During the same period, across the Atlantic, the United States also confronted questions about the use of citizenship as a policy tool in the context of armed conflict – but now in the context of responding to someone who was refusing to fulfil his military obligations and fight for his country. When Albert Trop deserted the US army while serving in Morocco in 1944, he was not only dishonourably discharged and dismissed from the military, but the government also sought to remove his US citizenship. However, the US Supreme Court blocked this move, ruling in 1958 that such denationalisation was barred by the eighth amendment which prohibits cruel and unusual punishment, and torture. Chief Justice Warren explained that to strip someone of their nationality and leave them stateless “is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights and, presumably, as long as he remained in this country, he would enjoy the limited rights of an alien, no country need do so, because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have rights”. History then, already cautions against the deliberate use of citizenship policy, or more particularly of statelessness, as a way to suppress or punish unwanted behaviour - be it where individuals are too keen to fight or not keen enough. Yet governments continue to reach for their citizenship powers when a new threat is felt.

The recent policy developments in the UK should be understood against the backdrop of the Al-Jedda case in which the Home Secretary was defeated in her attempt to deprive Hilal Al-Jedda, a high-profile terror suspect, of his British citizenship. The UK Supreme Court ruled that the fact that Al-Jedda could possibly regain his former (Iraqi) nationality in the future, was not sufficient to satisfy the terms of the British Nationality Act which prohibited deprivation of nationality if this would result in statelessness. As a result, the government could not deprive Al-Jedda of his nationality. The Supreme Court issued its decision on 9 October 2013 and on 29 January 2014 the UK Government introduced a clause in a new Immigration Bill that would amend the British Nationality Act 1981 to expand the powers of deprivation. This clause, Clause 60 (later Clause 64), would enable the Secretary of State (the Home Secretary) to deprive a person of his/her citizenship, if the citizenship has been gained through naturalisation and if “the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, even if to do so would have the effect of making a person stateless” [emphasis added]. This would likely be interpreted to include “British fighters returning from Syria who are suspected of having fought alongside jihadists”, and goes further than ‘merely’ stripping those fighters of their UK citizenship when they have dual nationality – a practice that has, incidentally, also increased recently.

Although the clause very quickly passed the House of Commons, not leaving much time for scrutiny, the House of Lords was more critical. On 17 March 2014, Lord Pannick noted, for instance: “It is a matter for considerable regret that the United Kingdom, which has played so significant a role in the battle to reduce statelessness, should now, if the Government have their way, condone the creation of statelessness, even for people who have damaged the public good. Such people should be put on trial, punished if there is evidence of criminal offences and deported if there is a safe country to which they can be sent. However, to deprive them of nationality and thereby render them international outcasts is simply indefensible. (…) My current view is that Clause 60 is so fundamentally flawed, so in breach of international law and so damaging in its practical consequences for the security of this country that it should be removed from the Bill.” And in the same vein, Lord MacDonald of River Glaven noted: “[T]his proposal is not only ugly in the sense identified so many years ago by Hannah Arendt; it not only associates the United Kingdom with a policy beloved of the world’s worst regimes during the 20th century; but it threatens illegal and procedural quagmire hardly compatible with the comity of nations, still less with solidarity between free countries in the face of terrorism.” In a subsequent debate within the House of Lords, on 7 April 2014, Baroness Kennedy of The Shaws raised the cases of those dual nationals deprived of British citizenship under existing powers, only to be kidnapped or killed in US drone strikes – a point already raised by Ian MacDonald, the former President of the Immigration Law Practitioners’ Association – and  wondered: “is that the purpose of this change of law, that we might be able to do things that make people vulnerable and deny them their rights, creating yet more black holes where no law obtains but where we cannot be accused of complicity?”

External commentators were also highly skeptical of the Government’s plans. Some likened the UK’s new citizenship policy to the reintroduction of “medieval exile”. Concerns were voiced from many fronts, including by Ben Emmerson, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. Kat Craig, Legal Director of human rights organisation Reprieve warned that May’s plans would set “a terrible example around the world.” Shami Chakrabarti, Director of human rights organisation Liberty, stated that “removing the right to have rights is a new low. Washing our hands of potential terrorists is dangerously short-sighted and statelessness is a tool of despots not democrats.”

Deeply concerned by their country’s new nonchalance towards statelessness, Pannick and other peers tabled an amendment, which was designed to scrutinise these expanded deprivation powers more closely. It passed 242 to 180. However, Theresa May then successfully convinced the members of the House of Commons to overturn the House of Lords’ amendment by offering minor concessions with regards to the manner in which the new powers to revoke citizenship would be implemented (the Home Secretary won the vote by 305 to 239 on 7 May 2014). Provision was made for an independent reviewer to examine how the powers work and the Home Secretary would only be able to “make an individual stateless if she has ‘reasonable grounds for believing’ they can acquire the citizenship of another country”. This wording is highly curious. On the one hand, it acknowledges that the UK has specific international obligations when it comes to the avoidance of statelessness as a consequence of deprivation of nationality – including under the 1961 UN Convention on the Reduction of Statelessness – and should therefore tread extremely carefully so as not to be in breach of these obligations. On the other hand, it fundamentally misinterprets those international obligations by suggesting that the obligation to prevent statelessness is not at issue where there are "reasonable grounds for believing" (vague terminology indeed) that the person can acquire the citizenship of another country (a newly fabricated proviso not found anywhere within international law). Furthermore, one can seriously wonder how this would work in practice. In the words of Baroness Kennedy of The Shaws: “Would another country seriously consider giving nationality, even to someone who might have the ability to apply for nationality of that country, if it knew that British citizenship had been removed on the grounds that the person was believed to be in some way linked to, or to condone, international terrorism?” In addition to this valid point, the decision to deprive people of their citizenship would, in the eyes of Reprieve, remain in the hands of the Home Secretary, which flags serious due process concerns, and the measures would still only count for naturalised Britons, thus creating two classes of citizens, a practice reminiscent of Nazi Germany or of Iraq led by Saddam Hussein. The stripping of British and thereby EU Citizenship to leave a person stateless may also raise issues under European Union law, as seen in the 2010 Rottmann ruling by the European Court of Justice. And finally, one can seriously wonder whether the compromise is effective in practice and not in violation of e.g. UN Security Council Resolution 1373 in which it was decided that all states shall ensure that terrorism suspects are brought to justice. Indeed, is it not much more efficient and safer to prosecute a terrorism suspect than to take away his citizenship? After all, if this person wants to do harm, he/she will do it, with or without a British passport.

Surprisingly and disappointingly, on 12 May 2014, the House of Lords, in a 286 to 193 vote, approved the new compromise, with even Lord Pannick welcoming the plans as a “very substantial concession” (and abstaining from the vote). It is a great shame to see that with technical reassurances and newly-created procedures, fundamental principles are slowly but surely being eroded. In the words of Lord Macdonald of River Glaven: “I remain of the view that the United Kingdom should not embrace a policy where one of its potential results is statelessness, associated with so many of the degenerate states of the 20th century, and where the outcome, if it is statelessness, is so hostile to human dignity in its most basic form. This is particularly so where that policy is also bound to strike against the international accord that is so central to the maintenance of security both between and within states. In the long run, we cannot and will not make the United Kingdom a safer place by dumping our security threats abroad, sometimes into states where the capacity for dealing with them is completely debased, so that they simply grow.” Indeed, besides the already-mentioned point that the effectiveness of this compromise to keep people safe is in doubt, there is a far more principled issue here: if ‘normal’ deprivation of citizenship (of persons having dual nationality) is already leading to “the lawless excesses of the ‘War on Terror’: kidnap or death by drone”, one should be extra careful when removing the fundamental right to have rights in its entirety. It is naïve to think that we can ‘win’ the fight against terrorism with such measures. The only thing we can arguably do, when addressing terrorism, is to include rather than exclude persons – as exactly exclusion might be a factor conducive to radicalisation of persons – and adhere to the principles, values and norms we believe in. Only by playing by the (international) rules, in times when it really matters, even if the adversary is not doing the same, can we counter the terrorist threat – and not in any other way.