In recent years, more and more countries across Europe and the United States have been running into legal issues in deciding whether or not to strip returning ISIS fighters and their families of their citizenship. After the collapse of ISIS’ caliphate, those members, who joined ISIS from Western countries, are now trying to return to their home countries. An estimated 6,000 European nationals joined ISIS over the last few years.[1] And an estimated 300 joined from the United States.[2] This leads the governments of returnee citizens to worry about, not only the implications of letting them return in terms of consequences for their actions, but also the risk of returnees further radicalizing and influencing other individuals in society, or even in prison.
Most recently, the question of legality of the practice of not allowing ISIS fighters to return, came up when two women who joined ISIS in Syria and Iraq were trying to return to their respective countries, the United Kingdom and the United States. President Trump instructed the State Department not to allow the U.S.-born woman to re-enter the U.S., after she left for Syria from Alabama in 2014, where she is currently retained in a Kurdish camp.[3] Meanwhile, Home Secretary Javid, of the U.K., has moved to revoke citizenship for a woman who is begging to return to the U.K., after leaving four years ago, to marry an ISIS fighter in Syria.[4]
Most countries of returning fighters have been struggling with how to deal with these issues. The European Union has been adamant on keeping ISIS returnees as far away as possible, leaving hundreds of E.U. citizens in Kurdish-led Syrian Democratic Forces (SDF) camps for captured fighters. The main reason for this E.U. practice is that it would be tremendously difficult to prosecute these foreign fighters in E.U. courts, as the burden of proving foreign terrorist involvement would rely very heavily on evidence from and investigations in a conflict zone.[5] A related cause for European governments is that, even if there is limited evidence, this so called ‘battlefield evidence’ would not be admissible in court, due to the manners in which it would have been obtained.[6]
Another reason European countries specifically want to keep returnees away, is that governments are not allowed to strip persons of their citizenship, as no person is to be without citizenship of a country, as Article 15 of the Universal Declaration of Human Rights states that “everyone has the right to a nationality”.[7] The German government decided that it will, under this human right, strip dual-citizens who fought for ISIS and other terrorist groups of their German citizenship, arguing that because those individuals are still left with the other citizenship, is lawful, although not retroactively.[8]
As of the date of this article, governments of France, Germany, and the U.K. are looking to fellow countries’ courts, awaiting decisions on these cases; but are so far reviewing them on a case-by-case basis, trying to prosecute and rehabilitate these foreign fighters, without violating their Human Rights.[9]
- Joana Cook & Gina Vale, From Daesh to ‘Diaspora’: Tracing then Women and Minors of Islamic State, International Centre for the Study of Radicalization, 2018, https://icsr.info/wp-content/uploads/2018/07/Women-in-ISIS-report_20180719_web.pdf. ↑
- Alexander Meleagrou-Hitchens et al., The Travelers – American Jihadists in Syria and Iraq, Program on Extremism, 2018, https://extremism.gwu.edu/sites/g/files/zaxdzs2191/f/TravelersAmericanJihadistsinSyriaandIraq.pdf. ↑
- Joseph Hincks, How ISIS Returnees Are Stirring a Debate Over Citizenship, Security and Rule of Law, TIME, 2019, http://time.com/5534674/shamima-begum-hoda-muthana-isis/. ↑
- Id. ↑
- Anthony Dworkin, In legal limbo: EU Returnees in the post-ISIS Era, European Council on Foreign Relations, 2019, https://www.ecfr.eu/article/commentary_in_legal_limbo_eu_returnees_in_the_post_isis_era. ↑
- Rachel Kennedy, What is Europe’s approach to repatriating ISIS members?, Euronews, Mar. 7, 2019, https://www.euronews.com/2019/03/07/what-is-europe-s-approach-to-repatriating-isis-members-euronews-answers. ↑
- G.A. Resolution (III) 217 A at art. 15(1), Universal Declaration of Human Rights (Dec. 10, 1948). ↑
- Germany to Strip Dual-Nationals Who Fight for Isis of Citizenship, Financial Times, https://www.ft.com/content/1c929f90-3e6b-11e9-9bee-efab61506f44. ↑
- Rachel Kennedy, supra note 6. ↑
