Stripping foreign fighters of their citizenship: International human rights and humanitarian law considerations

Christophe Paulussen

doi:10.1017/s1816383121000278

Abstract

AbstractThis article will briefly present a number of international human rights law considerations related to the topic of citizenship stripping of foreign fighters, that is: “individuals, driven mainly by ideology, religion and/or kinship, who leave their country of origin or their country of habitual residence to join a party engaged in an armed conflict”, most notably the conflict in Syria and Iraq. After that, the article will focus on considerations in the context of international humanitarian law, which have been less frequently the subject of academic debate. This contribution concludes that citizenship stripping is not only highly problematic under international human rights law, but also from the perspective of international humanitarian law. The measure – which is likely to constitute cruel, inhuman or degrading treatment or punishment – violates Article 3 Common to the four Geneva Conventions, but it also undermines accountability for international humanitarian law violations already committed and can engender new violations through the non-removal of the suspect from the conflict zone. One of the few positive sides of the connection between the measure and international humanitarian law is that even if nationality is deprived, this will not have an effect on the international humanitarian law obligation to treat that deprived person humanely. In that sense, international humanitarian law provides a welcome – albeit temporary – safety net of decent treatment for people who have become victims of countries’ refusal to take responsibility for their own citizens.

Highlights

Various armed conflicts around the world have attracted foreign fighters, who have been defined as “individuals, driven mainly by ideology, religion and/or kinship, who leave their country of origin or their country of habitual residence to join a party engaged in an armed conflict”
As briefly mentioned at the end of the previous part, deprivation of nationality removes an important jurisdictional link to try possible offenders, the active nationality principle, and undermines the fight against impunity.[48]. By violating this customary international humanitarian law obligation, states violate the more general obligation of United Nations (UN) Security Council Resolution 2178, the most authoritative resolution on the phenomenon of foreign terrorist fighters (FTFs), that “Member States must ensure that any measures taken to counter terrorism [such as deprivation of nationality] comply with all their obligations under international law, in particular international human rights law, international refugee law, and international humanitarian law”
The point could be made that if a state does not bring its foreign fighters to justice, it will undermine the fight against impunity for crimes already committed, and it may lead to a prolongation of the conflict,[55] which, in turn, will lead to new international humanitarian law violations.[56]

Summary

Introduction

Various armed conflicts around the world have attracted foreign fighters, who have been defined as “individuals, driven mainly by ideology, religion and/or kinship, who leave their country of origin or their country of habitual residence to join a party engaged in an armed conflict”.1 Examples are the British national George Orwell, who participated in the Spanish civil war in the 1930s on the side of the republicans, the Saudi national Osama bin Laden, who arrived in Afghanistan in1 A. de Guttry, F.

Results

Conclusion