Let’s talk about the army

Katja Swider, University of Amsterdam
/ 5 mins read

How is the army relevant to statelessness? Conscription, a compulsory participation of citizens in their states’ military, still exists in over 60 countries around the world. Military duty is an illustration of a questionable assumption that can be made in the discourse on statelessness, namely that statelessness always equals vulnerability, while nationality always equals protection. While statelessness often results in vulnerability, nationality is not necessarily a guarantee of any form of protection. The definition of a stateless person in the 1954 Convention confirms the “empty” nature of nationality – a stateless person is someone who is “not considered as a national by any State […]”. Nationality means simply that a person is in the hands (or claws) of a state, and it tells us nothing about the humanitarian situation of that person. It does feel counter-intuitive to provide protection to stateless persons because they receive no protection from a state, while not provide similar protection to nationals who in an equal measure are not being protected by their state. The uneasiness with protecting the stateless while leaving out from protection the unprotected nationals lead some authors to fall back onto the controversial concept of ‘de facto’ statelessness. A judgment by the Italian Supreme Court, discussed earlier on this blog, seems to even indicate that nationality should have a ‘minimum content’ of protection in order to truly be a flip-side of the statelessness coin.

But let us get back to the army. During the writing of my doctorate thesis, I was contacted  by two persons in very similar situations who were, independently of each other, wondering whether they were stateless or not. One was born in the Netherlands; the other lived here since early childhood. Both were in possession of legal residence permits. Both had ethnic Armenian parents, who left the territory of Armenia while it was still part of the Soviet Union. None were ever in possession of Armenian identity documents, or any other proof of their nationality from that state. Both were identified in the Dutch administration as “Armenian nationals”, presumably because of their parents’ origin. When these gentlemen turned 18, both wanted to obtain a Dutch passport, with which they hoped to be able to travel the world together with their high school friends, study abroad, or vote in national elections for their preferred political party. It seemed easy enough at first: both complied with all the formal requirements for naturalisation listed in the Dutch law, namely legal residence of at least 5 years, knowledge of Dutch culture and language, no criminal record etc. However, when submitting their applications, they were faced with another “hidden” administrative requirement for obtaining Dutch nationality, which does not feature in the law, but is enforced on the administrative level - the requirement to show a foreign passport. Neither of them ever had one. Stateless persons are exempted from this requirement, but as stated earlier, the gentlemen in question were identified as “Armenian nationals” by the Dutch authorities.

And now the story is finally really about the army. The request to Armenian authorities to either issue passports or statements that the persons in question were not nationals yielded the same informal reply – if you serve in our army, we will get you a passport or any other document you wish. If not, we will not provide you with any documents or statements. All that one of them ever managed to get on paper was an abstract statement that if he applies and obtains an Armenian passport, and if he is a man of a certain age, he is obliged to serve in the army.

Why is this a problem? First and foremost, there are reported grave human rights abuses with regard to the operation of the Armenian army. A report by the Council of Europe Commissioner for Human Rights from March 2015 emphasizes that incidents of non-combat deaths and ill-treatment continue to occur, and effective accountability mechanisms for the perpetrators of abuse are still lacking. Moreover, the country is at war over a piece of land called Nagorno-Karabakh, and young men are dying in combat. Even if the two main characters of this story were lucky enough to survive combat situations, they would be very likely to suffer intense psychological trauma of fighting a war they do not know, in a hostile army environment of a country that is only familiar to them by proxy. Some authors have hyperbolically compared statelessness to torture. However, there are situations when embracing a specific nationality can relate directly to a risk of real and fatal torture.

But emotions aside, are these two gentlemen Armenian nationals, or are they stateless? That is not easy to establish. Armenian nationality laws are not crystal-clear on the status of individuals who have been abroad at the time of the state formation. The status of children born to individuals who left the country before the fall of the Soviet Union is even less obvious. Ultimately, it is up to the competent authorities of Armenia to apply Armenian nationality law to specific cases, and establish whether the individuals in question possess the nationality of Armenia. However, in the absence of a conclusive answer from Armenia the host state should at some point conclude that the gentlemen are stateless

The attitude of the Armenian authorities is ambiguous though. In a way, it can be interpreted as a sign of considering these individuals as nationals; they are extremely welcome by the authorities to fulfill their duties as nationals. Once they have done it, rights will probably follow too. On the other hand, a conclusive formal response as to the nationality status is lacking, warranting an eventual recognition of statelessness. With the lack of an adequate statelessness determination procedure in the Netherlands, the men are trapped in a silly situation where they are prevented from becoming nationals in one state until they have served in the armed forces of another state.  

It’s all well and good to speak of nationality as a right. But what if a person does not want to exercise the right to a specific nationality which is legally and practically accessible to him or her? Being a national is also a burden. The burden of nationality may, depending on your age, gender, and family history, involve potentially losing your life or undergoing physical or psychological torture. Setting aside the discussion on the acceptability of conscription in light of human rights, I think everyone who works on issues of statelessness - advocates, academics and policy makers - should ask ourselves: what exactly are we trying to achieve when we fight for everyone’s right to have a nationality? What burdens we might be unintentionally imposing on individuals, and to which extend are they acceptable in the framework of our values?

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