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Citizenship unmoored: Expatriation as a counter-terrorism tool
... Citizenship revocation as transferal of responsibility to another state Denationalization, therefore, is ideally conceived as a two-step process of disowning citizens and transferring them to a country of their 'residual' (Bolhuis and van Wijk 2020) citizenship (Macklin 2015;Mantu 2015;Esbrook 2016;Gibney 2020). While the process centres on transferring a person, it also importantly allocates control and responsibility over the person: 'deportees are… returned or repatriated to their country of membership rather than banished or exiled' (Gibney 2020: 296, emphasis in the original). ...
... But at other times, the state deliberately restricts the citizen's ability to launch an appeal, which removes the subsequent need to deport them. This also preempts the problem of not having where to deport the former citizen to (Esbrook 2016), which is especially pertinent when states (such as Italy and the United Kingdom) permit citizenship revocation even when it leads to statelessness. Second, denationalized citizens' residual citizenship might link them to a country which undermines their security or life prospects. ...
... To understand fully the purpose of citizenship revocation, a useful comparison can be drawn with less intrusive freedom-restricting measures, such as passport revocations, passport seizures or travel restriction orders that are used to regulate citizens' 'mobility across the border' (Zedner 2016). Given that they can achieve the same purpose with less invasiveness-as they are more targeted and flexible-they have been proposed as alternatives to denationalization (Esbrook 2016). This, however, misses the true purpose of citizenship deprivation which, rather than managing the threat possibly indefinitely, absolves the country of responsibility over their citizens forever. ...
The article examines instances of de jure and de facto denationalization that arise from (suspected) terrorism by analyzing penal outcomes for affected citizens. The article first exposes cases of de jure denationalization that confine citizens to global spaces and draws parallels with instances of de facto denationalization that deny repatriation from abroad. I then argue that both situations signal state’s avoidance of the duty to punish, deviate from conventional penal aspirations and engender volatile global penality. To support this argument, I explore three questions: (1) who punishes, (2) who is punished and (3) what the purpose of punishment is. I conclude by exposing the emerging features of global neo-colonial penality as they pertain to both its objects and objectives.
... To be sure, citizenship -or revocation thereof -now forms an integral part counter-terrorism policy across many Western countries. Esbrook (2016Esbrook ( : 1276 describes this use of citizenship as extreme and notes that after the second World War Western countries generally shunned the practice exactly because it was a tool of the Nazis. However, things have changed markedly since 9/11. ...
... Austria, Denmark, France, the Netherlands, the UK) have in recent years amended their laws to enable them to revoke citizenship even when this results in statelessness, provided that the individual concerned obtained citizenship through naturalization. Thus, here, too, one's minority status is significant, as these laws have applied virtually exclusively to foreign-born, or naturalized, citizens (Esbrook 2016(Esbrook : 1285. Ultimately, Esbrook warns that using citizenship as a counter-terrorism tool is profoundly dangerous because it threatens to upend the hard-fought achievements of post-WW2 liberal democracies. ...
... To be sure, citizenship -or revocation thereof -now forms an integral part counter-terrorism policy across many Western countries. Esbrook (2016Esbrook ( : 1276 describes this use of citizenship as extreme and notes that after the second World War Western countries generally shunned the practice exactly because it was a tool of the Nazis. However, things have changed markedly since 9/11. ...
... Austria, Denmark, France, the Netherlands, the UK) have in recent years amended their laws to enable them to revoke citizenship even when this results in statelessness, provided that the individual concerned obtained citizenship through naturalization. Thus, here, too, one's minority status is significant, as these laws have applied virtually exclusively to foreign-born, or naturalized, citizens (Esbrook 2016(Esbrook : 1285. Ultimately, Esbrook warns that using citizenship as a counter-terrorism tool is profoundly dangerous because it threatens to upend the hard-fought achievements of post-WW2 liberal democracies. ...
This chapter aims to show the ways in which contemporary liberal democracies find themselves in an "age of extremisms", an age defined by the increasing dominance of extreme ideas and practices across the political spectrum, including in the mainstream. Nation-States partially bear responsibility for this situation through their responses to extremist movements, and because of these responses, the very pillars of liberal democracy, such as human rights and social justice, are today under threat. Crucially, in this age of extremisms, both citizenship and education have been formally drawn into counter-extremism policy across the Western world. This shift in policy has important implications for, and raises vital questions about, citizenship and education as ideas, principles and practices. The chapter will explore these issues and questions. It will use a range of academic and non-academic sources, but its examples are mainly drawn from the UK context and its primary analytical thrust is sociological.
... Ajempts by several European states of revoking the ciNzenship of naNonals who had joined the Islamic State reflects IS pracNces of denying dual ciN-zenship to ensure full allegiance of its new subjects to the self-proclaimed Caliphate. For instance, Canada passed a law revoking Canadian ciNzenship of dual naNonals who, according to the law, 'engaged in certain acts contrary to the naNonal interest of Canada' in 2014, followed by Australia the following year (Esbrook 2016). Denmark stripped two ciNzens (Moroccan-Danish and Turkish-Danish) of their Danish ciNzenships in 2016 and 2017, respecNvely, for joining the IS. ...
... For this argument, see Lenard (2016, 85). For alternative proposals to fight terrorism (e.g., passport suspension, temporary exclusion orders, rehabilitation programs, and increased border security), see also Esbrook (2016, 1312-1328, Zedner (2019b. 49 See, e.g., Cohen (2016, 255-256). ...
Germany is joining a long list of European democracies that have modified or expressed a willingness to modify their citizenship laws to denationalize first and then prevent the return of or expel those citizens accused of having participated in terrorist activities abroad. The formal labelling of citizenship deprivation as an administrative measure outside the scope of criminal justice has prevented scholars of criminal law from undertaking a thorough scrutiny of its legitimacy. In this paper I seek to fill this gap. Specifically, after demonstrating why deprivation of citizenship is a measure of a criminal nature, I argue against its legitimacy, either as a punishment or as a risk-based measure. Instead I propose that we should understand citizenship deprivation as a paradigmatic response from an illegitimate enemy criminal law. Notwithstanding the foregoing, I claim that states that choose to denationalize terrorists should do it within the framework of a process with the highest (criminal procedural) guarantees.
... Esbrook (2016), p. 1305.61 Paulussen(2016), p. 13. 62Macklin (2015b), p. 55. ...
Nationality is the legal bond between a person and a state that connotes full and equal membership of the political community. Yet, in the practice of states, not everyone who is admitted as a national enjoys the full package of rights attached, nor the same security of status. The phenomenon of inequality among citizens is particularly apparent when examining the question of how protected the legal bond itself is: citizenship by birth is more secure than citizenship acquired otherwise—such as by naturalisation—and mono citizens are less prone to withdrawal of nationality than persons with dual or multiple nationality. As nationality revocation gains new attention from states as a tool to counter terrorism, prompting much political, public and academic debate, the reality that this measure often applies only to particular sub-groups of citizens demands closer scrutiny. This article explores how law and practice on citizenship deprivation is to be evaluated against contemporary standards of international law. While states justify unequal application of citizenship deprivation measures by invoking the duty to avoid statelessness, this article shows that the application of other international standards such as non-discrimination and the prohibition of arbitrary deprivation of nationality calls into question the legitimacy of citizenship stripping as a security instrument. Finally, the article reflects on the broader implications of the current trend towards greater inequality of citizenship status as a reaction to the perceived threat that terrorism poses to the integrity of the state, discussing how the creation of different classes of citizen is in fact likely to have a deeper and more lasting impact on the foundations of liberal democracies.
The aim of the article is to analyse the legal situation of the children held in camps in northeast Syria. The situation in the camps is devastating and poses a threat to the children’s right to life as well as physical and mental integrity. The article explores whether the states of citizenship of these children exercise any jurisdiction over them, and if the answer is affirmative, to what extent they exercise this jurisdiction. Next, the research will focus on the question of whether the states of citizenship have the obligation to repatriate those children from Syria. To this aim, the status of these children as victims of human trafficking will be also examined. Lastly, the deliberations will focus on the policy of citizenship revocation that is applied by some states in terrorism combatting and it will be studied whether this policy can be applied to children in conformity with international law. It results from the analysis that states have obligations towards children placed in the Syrian camps being their nationals, especially an obligation to repatriate them and to enable their rehabilitation and reintegration.
Extradition is a legal concept that has been grown throughout the history of international relations. However, it is not just a simple result of the everyday headaches of international actors. Extradition, specifically, extradition of common criminals, has also a substantial intellectual background that had been developed by prominent scholars such as Grotius and Beccaria. The current scope of extradition agreements, whether they are unilateral or bilateral, includes an obligation to surrender a person who has been convicted or suspected. This situation is related to its intellectual background as its history as well. Recent developments in international law, such as the denaturalization of dual citizens who have been involved in terrorist activities, initiated new legal disputes over whether a state has not any duty to open its borders to someone, who is not its citizen anymore, however, it should be examined that whether states are under an obligation to take and prosecute terrorists in terms of international law. Consequently, such an obligation is essential for the establishment of international security. Recognition of this obligation as a valid legal institution can only be achieved via a well-structured international treaty.
Over the past two decades, denationalisation – the controversial practice of revoking citizenship from unwanted citizens – has re-entered Western law and politics with astonishing haste. In this book, Christian Prener traces this remarkable development in the United Kingdom, Denmark, France and the United States and offers a timely and critical examination of the legal, moral, and political acceptability of citizenship revocation in response to acts of misconduct or disloyalty.
Through an exploration of contemporary practices, caselaw and theory, the book distils some of the hard questions posed by the Western revival of denationalisation within international human rights law, moral philosophy and political theory as it probes the lawfulness, efficacy, and political legitimacy of revoking citizenship in the 21st century.
Citizenship deprivation is becoming an increasingly standard response of modern states to criminal and other harmful acts. Current academic attempts to determine the sanction’s legitimacy are, however, frustrated by the inadequate understanding of its nature. Departing from a dominant perspective that considers denationalization as punishment, this article conducts an original study of citizenship policies in 37 European democracies and contrasts them with key principles of punishment. The findings raise serious doubts regarding the penal nature of denationalization: I propose instead that denationalization is better understood as a sui generis sanction, which seeks to relieve the polity of those members who fail to satisfy fundamental citizenship requirements. This position has serious implications for our understanding and justification of modern revocation practices.
This chapter contrasts the terrorist attacks in Paris in 2015 with the humanitarian refugee crisis. Following the terrorist attacks in Paris, a state of emergency was declared by the French government. On the international level, there was further securitization of Europe at the expense of civil liberties and due process. The second half of the chapter documents the power of the securitization discourse to induce fear and promote the dehumanization of those most in need. It demonstrates how the fear of terrorism became synonymous with the fear of refugees, leading countries to abandon their duty towards other human beings. As with the previous chapters, this chapter also explores state practices and state crimes in relation to political instability and terrorism, making evident how wars in Afghanistan, Iraq and Syria not only led to the decay of human life (creating a climate where mass death became collateral damage), but also a reality where individuals had the choice of either joining a terrorist group or potentially dying trying to migrate to a place of safety.
This article, on the basis of a consideration of the development of the law relating to the use of passports as a tool of national security in the United Kingdom, Canada, Australia and New Zealand, challenges the common law conception of passports, arguing that passports effectively confer rights and so, consequentially, that the refusal or withdrawal of a passport represents a denial of rights. From this conclusion a number of points flow. Though these consequences are most acute for the United Kingdom and Canada, in which passports remain regulated by, and are issued under, prerogative powers, there are also a number of points of significance for Australia and New Zealand, where passports have a statutory basis.
In its efforts to counteract terrorist threats and contain the risks posed by returning foreign fighters, the Netherlands, like several other European states, has enacted legislation introducing denationalisation as a counter-terrorism measure. The Dutch measures target convicted terrorists and foreign fighters alike, the latter without the prior involvement of the judiciary. This practice not only challenges traditional conceptions of citizenship, but also raises several human rights concerns, of which discrimination is the most pressing. This Article therefore examines the measures taken by the Netherlands and analyses their compatibility with Articles 14 and P12-1 of the European Convention on Human Rights, to assess the measures’ disproportionate focus on Dutch-Moroccans from a legal perspective. Based on this conclusion of inequality, the Article then ventures beyond purely legal analysis to discuss the Dutch legislation more broadly, before linking the legal argument with normative critiques on the denationalisation of terrorists, and foreign fighters in particular. Taken together, the legal and normative findings establish that denationalisation as a counter-terrorism measure in the Netherlands cannot be reconciled with the legal or normative dimension of the equality principle.
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