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Should ISIS Fighters be Allowed to Return Home?

Fauzan al-Anshori, right, an Islamic State recruiter, leads the "bayat", an oath of devotion, to the leader of Islamic State.

Fauzan al-Anshori, right, an Islamic State recruiter in Indonesia, leads the “bayat”, an oath of devotion, to the leader of Islamic State. Photo: SMH/Screengrab

Should a country’s citizens be allowed to return home after fighting for the Islamic State (ISIS)?  It would seem at first a silly question to ask—why welcome home hardened fighters who have the skills and may have the determination to threaten your country’s population?  Yet according to law in a number of countries, many of these fighters are allowed safe passage home.

Some constitutional and human rights lawyers around the world argue that safe passage should be guaranteed—that every person has the right to citizenship and to remove it would in effect make a person stateless.  Some critics argue that citizenship should only be revoked under judicial review (e.g. conviction by a court of law of an act of terrorism directed at fellow citizens).  Conviction appears to be a high standard and forces the onus of prevention on local police officials. Since preventing terrorist acts is extremely difficult—why take any chances by allowing fighters to return?

Despite the opposition by lawyers, countries are starting to take action. Following the siege of a cafe in Sydney in December 2014, Australia moved to pass measures barring its citizens who join, support or train with extremist groups like the Islamic State from returning home from conflict zones.  The new laws not only apply to Australians fighting overseas, but to those who help raise money or recruit new members for extremist groups.

In Canada, in the aftermath of the terrorist attacks in October 2014 at the Canadian National War Memorial in Ottawa, the country amended its Citizenship Act last May. The amendment now allows the stripping of the citizenship of dual nationals found fighting with any international terrorist organization or found guilty of terrorism, treason, or spying for a foreign government.

Austria, Belgium and Britain have also revised their laws to permit the revocation of citizenship in terrorism-related circumstances, while France is considering a change in their constitution allowing to strip French-born dual citizens of their French citizenship in certain circumstances related to terrorism. The French justice minister, born in French Guiana, recently resigned over the government’s plan. Citizens with dual nationality are being targeted largely since the 1961 UN Convention on the Reduction of Statelessness prohibits governments from revoking a person’s nationality if it leaves them stateless.

The latest high-profile country to reconsider its citizenship laws is Indonesia, in the wake of last month’s bombings by the Islamic State in Jakarta’s commercial district, which killed eight people and injured 30 people. Lawmakers and security officials are now busy considering the rewrite of the nation’s anti-terrorism laws, which currently permit Indonesians to return home after fighting with ISIS overseas. The fear is of returning experienced jihadis launching more sophisticated attacks than the one that took place last month, which resulted in the deaths of all four attackers.

Indonesia is now home to roughly 100 Indonesians who traveled to the Middle East to join Islamic State, and may have seen very little or no frontline combat before returning. Around 500 Indonesians have made the trip so far to join ISIS.  

The bombings and shootings in Jakarta last month were the first in Indonesia carried out by ISIS, with the last major attack by Jemaah Islamiyah militants occurring in 2009, when suicide bombers killed seven at two luxury hotels in Jakarta. Indonesian authorities are now on high alert following the publication of a new warning by Islamic State that shopping centers, offices and tourist hotspots in Denpasar and Singaraja may be the next targets.

Given the potential threat posed by some of those who left their countries to join Islamic State, immigration authorities in many countries are right to be nervous about letting potential terrorists back into their country.  Citizens in these countries are already reluctant to let in refugees from Syria and Iraq—even women and children. Yet the UN Convention on the Reduction of Statelessness prohibits leaving persons stateless.  

Perhaps the UN convention needs to be revised and updated to specifically address the world we live in today. To date, the 1961 convention argues in Article 9, “A Contracting State may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds”, whose intent is likely to protect non-violent persons from persecution. However, should those persons or groups turn violent, and threaten the state, the UN convention allows for in Article 8:

  1. Notwithstanding the provisions of paragraph 1 of this Article, a Contracting State may retain the right to deprive a person of his nationality, if at the time of signature, ratification or accession it specifies its retention of such right on one or more of the following grounds, being grounds existing in its national law at that time:

(a) that, inconsistently with his duty of loyalty to the Contracting State, the person

(i) has, in disregard of an express prohibition by the Contracting State rendered or continued to render services to, or received or continued to receive emoluments from, another State, or

(ii) has conducted himself in a manner seriously prejudicial to the vital interests of the State;

(b) that the person has taken an oath, or made a formal declaration, of allegiance to another State, or given definite evidence of his determination to repudiate his allegiance to the Contracting State.

Given proof that a citizen has travelled to the Middle East and trained as a jihadist, and represents a threat upon returning to his/her country of nationality, it would seem that citizenship could be revoked under (a) (ii). Furthermore, many recruits to Islamic State take an oath of allegiance, and if Islamic State can be defined as a State, citizenship can then be revoked under (b).  

Of course, human rights and constitutional lawyers need to fight for the rights of the innocents, but if my quick, non-lawyer reading of the Article is correct, it would appear that those citizens who travelled to the Middle East (or other regions) to join Islamic State, who took the oath, and who potentially threaten their home countries can have their citizenships revoked. With the proliferation of fake passports, however, these non-citizens will not be left stateless, and will be free to travel to and from weak and failing states, and perhaps even home.



Gary Sands

Gary Sands is a Senior Analyst at Wikistrat, a crowdsourced consultancy, and a Director at Highway West Capital Advisors, a venture capital, project finance and political risk advisory. He has contributed a number of op-eds for Forbes, U.S. News and World Report, Newsweek, Washington Times, The Diplomat, The National Interest, International Policy Digest, Asia Times, EurasiaNet, Eurasia Review, Indo-Pacific Review, the South China Morning Post, and the Global Times. He was previously employed in lending and advisory roles at Shell Capital, ABB Structured Finance, and the U.S. Overseas Private Investment Corporation. He earned his Masters of Business Administration in International Business from the George Washington University in Washington, D.C. and a Bachelor of Science in Finance at the University of Connecticut in Storrs, Connecticut. He spent six years in Shanghai from 2006-2012, four years in Rio de Janeiro, and is currently based in Ho Chi Minh City, Vietnam. Twitter@ForeignDevil666