The counter-productiveness of deprivation of nationality as a national security measure

This week, and after two and half years of research involving 60 international experts, a set of Principles on Deprivation of Nationality as a National Security Measure are launched. These Principles clarify the international legal obligations that states must comply with, if they take or consider taking steps to strip a person of their citizenship, including in a counter-terrorism context. They provide much needed guidance at a time when ‘legislative fever’ continues to grip Western countries, as governments struggle to (be seen to) adopt sufficient measures to counter the potential threat associated with the return of their citizens who travelled to Syria and Iraq to join ISIS, including their families.

Citizenship stripping in the Netherlands

In the Netherlands, a controversial amendment was passed in 2017, which enables the Minister of Justice and Security to revoke Dutch citizenship from a dual national who has joined an organisation that is listed as constituting a threat to national security (article 14(4) of the Dutch Nationality Act) – without a criminal conviction and while the citizen is abroad. Data published by the Dutch National Coordinator for Security and Counterterrorism last year indicated that this specific power has only been used on 11 occasions, in spite of calls from some political parties for the Minister to exercise his powers more actively. In seven of these cases the nationality was subsequently restored due to procedural infringements. The law has meanwhile been under fire because of its discriminatory effect. Following a visit to the Netherlands in late 2019, UN Special Rapporteur on Racism, Tendayi Achiume, expressed concern that “citizenship-stripping legislation, policy and procedure, which, while facially neutral, disproportionately affects Dutch people of Moroccan and Turkish descent and therefore runs afoul of international human rights equality and non-discrimination principles”.

Despite this, the instrumentalisation of nationality deprivation has proven politically popular, in particular because of its highly symbolic nature. The rhetoric that these so-called ‘foreign terrorist fighters’ have not only committed monstrous crimes, but have betrayed their countries and so their behaviour warrants – or even demands – this severe response, is persuasive to a general public repulsed by the reports of acts committed by members of ISIS. This is a difficult narrative to counter, except by taking a step back and asking the question: does depriving these citizens of their political membership actually make us more secure?

Export of risks

Generally speaking, there is a notable absence of impact assessment accompanying the adoption or use of denationalisation powers by governments. More importantly, there is growing concern that deprivation of nationality is not just an ineffective counterterrorism measure, but it “may even work against the goals of counter-terrorism policy”, as concluded in Resolution 2263 adopted by the Parliamentary Assembly of the Council of Europe in 2019. The Resolution explains that depriving a citizen of their nationality “may lead to the ‘exporting of risks’, as those persons may move to or remain in terrorist conflict zones outside Europe” and that “such a practice goes against the principle of international co-operation in combating terrorism, […] may expose local populations to violations of international human rights and humanitarian law [and] undermines the State’s ability to fulfil its obligation to investigate and prosecute terrorist offences”. One could argue that national security is temporarily protected if individuals posing a possible risk are no longer allowed to re-enter the country, but this is of course a very limited view of the concept of security, in both time (what about our security in the long-term?) and space (what about the security of other countries and their people?) – a view which is no longer in sync with our hyper-connected world.  

An open letter from a number of Council Members of the European Council of Foreign Relations, calling for a managed return of ISIS fighters, concurs that it is “European governments [that] have the resources to handle these people through prosecution, surveillance, or reintegration, as appropriate”. This point has also been raised by national security experts and criminal justice professionals, who are increasingly found to be among the opponents of the measure. Meanwhile, adopting a wider lens, in his review of research on the history of states’ responses to foreign fighters and how these actions panned out, Dr David Malet, points out that “Arab states preventing jihadis from returning from Afghanistan in the 1990s led to waves of foreign fighters spreading to war zones and failed states around the world. Osama Bin Laden is Exhibit A of the folly of stripping a foreign fighter’s citizenship and then washing your hands and assuming the individual is no longer your problem”.

The Dutch legislation is currently being evaluated – a critical moment to look beyond the political rhetoric around this measure, to challenge the assertion that it makes us more secure and to carefully review whether its use meets fundamental standards of international law. The newly-published Principles will be a valuable tool in this assessment.