A punishment more primitive than torture

Anne McMillan

The stripping of citizenship for terrorism, or suspected terrorism, ranks among the most contentious post-9/11 issues. The numbers currently affected may be small but the legal principles at stake, and the implications for all citizens, are enormously significant.

Denial of citizenship has an ignominious history, dating at least from the use of exile as an alternative to execution in Ancient Greece and Rome. The 18th century jurist, Cesare Beccaria, condemned the practice. He wrote in his classic work covering penal theory, On Crimes and Punishments, that ‘banishment is the same as death in respect to the body politic’.

Attacks on citizenship – in abeyance for a time outside authoritarian regimes – experienced a resurgence in democracies during the Second World War. As a reaction to the Japanese attack on Pearl Harbor in December 1941, both Canada and the United States interned citizens of Japanese descent. Although there was no evidence that they were colluding with the enemy, the internees were deprived of various citizen-related rights.

After the War, the renowned political theorist, Hannah Arendt, who lost her German citizenship under the Nazis, famously called citizenship ‘the right to have rights’. She went on to describe this destruction of status as disastrous for the disenfranchised because ‘their plight is not that they are not equal before the law but that no law exists for them’.

With limited exceptions, the 1961 United Nations Convention on the Reduction of Statelessness bans citizenship deprivation where it would make an individual stateless. But some countries are trying to water down this principle. Recent new or strengthened laws in Western democracies permitting the expanded use of citizenship deprivation have been introduced in reaction to increasing home-grown Islamist terrorist attacks since 9/11.

This is the nub of the problem. The most basic principles of criminal law teach that the purposes of punishment are deterrence, incarceration, retribution and rehabilitation. And legal professionals well know the fundamentals of the rule of law include non-discrimination, due process, legal certainty and transparency. Therefore, even in extreme circumstances, how can a state justify citizenship-deprivation laws, which apparently throw these legal principles out the window, and why would it do so, especially when there is no evidence that this strategy actually works?

New laws and the law of the news

When a terrorist ‘known to the security services’ turns out to be the person who just committed a horrific attack, the media fire awkward questions and heap blame upon governments. In such circumstances, the desire to be seen to respond decisively to terror attacks is no doubt motivating. But, in the absence of effective judicial oversight, can – and should – the executive arm of government be permitted to take a decision with such drastic consequences for the individual based on unchallenged (and often unchallengeable) information from its intelligence services?

Some legal scholars would argue that the sanctity of citizenship is directly related to whether that citizenship is seen as a human right per se and therefore protected in a national bill of rights or constitution. The point is illustrated by Australia, which recently passed a proliferation of anti-terrorism legislation, including provisions on citizenship removal. George Williams, Dean and Professor of Law at the University of New South Wales in Sydney, observed in the wake of the new legislation: ‘The fact that Australia is the only democracy without a national Bill of Rights informs its approach and the weight not given to citizenship as a human right.’

Japanese Americans boarding a bus at Lone Pine, California, on their way to an internment camp at Manzanar, California, April 1942.

But not all countries have moved in this direction. US Chief Justice Warren in the 1957 case Trop v Dulles, laid out a strong defence of the concept of citizenship as a right rather than a privilege under the Eighth Amendment to the US Constitution: ‘While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending on the enormity of the crime but any technique outside the bounds of these traditional penalties is constitutionally suspect.’

Second-class citizens?

So, despite 9/11 and other terrorist attacks, not much has changed in the US in the 60 years since Trop v Dulles – citizenship still remains sacrosanct. But not everywhere.

In 2018, citizenship deprivation laws in some countries share many characteristics with the unfortunate practices of the past, in particular the arbitrary removal of the individual from state protection. Nowadays, it is dual citizens or naturalised citizens who are the main victims of citizenship deprivation laws, largely because they make easy targets.

After the election of the current Canadian Prime Minister, Justin Trudeau, in 2015, the country backed away from tough legislation introduced in 2014 (the ‘Strengthening Canadian Citizenship Act’). This legislation contained some safeguards, for example requiring a judicial as well as an executive decision in order to remove citizenship. But its Achilles’ heel remained that it only targeted dual nationals, since it could not be used to create statelessness, and therefore was seen as discriminatory.

Catherine Sas QC, Senior Vice-Chair of the IBA’s Immigration and Nationality Law Committee, explains ‘if the stripping of citizenship then applies only to naturalised Canadian citizens, you are creating two classes of citizens – or perhaps two classes of terrorists – those who can lose their acquired Canadian citizenship and those “born-in-Canada” terrorists who don’t risk the loss of their citizenship.’

The weakness of such a system was clear when Canada’s reformed legislation actually returned citizenship to Zakaria Amara, one of the leaders of the failed ‘Toronto 18’ terrorist bomb plot, who was subject to citizenship removal despite having been given a life prison sentence. As the former Minister of Immigration, Refugees and Citizenship, John McCallum, said prior to the 2017 change in the law: ‘We do have a criminal justice system. We do have courts. We do have prisons where those convicted of crimes are sent. And that is the way in which we deal with this… The place for a terrorist is in prison, not at the airport.’

Another concern is the risk that an innocent person may be peremptorily deprived of citizenship in error and so its use as a sanction therefore has a particular danger. Sas recalls several prominent cases of Canadians wrongly accused of terrorist offences. In one such case, Maher Arar, a Syrian-born Canadian, subjected to rendition to Syria by the US where he was imprisoned and tortured for ten months, was subsequently found to be innocent. He was given $10.5m in compensation by the Canadian government in 2007. ‘I think that many new Canadians felt threatened by the loss of citizenship terrorism provisions,’ says Sas. ‘We have had some very high-profile cases in Canada where people were found to be terrorists or connected to terrorists that ultimately turned out to be false. The case of Maher Arar is a good example.’

Removal of citizenship is a political process that can be grievously abused

Helena Kennedy QC
Past Co-Chair, IBA’s Human Rights Institute

Extreme approaches: the UK

In Europe, the most extreme approach to citizenship removal is taken by the United Kingdom. The country has a complex array of laws covering citizenship deprivation, which have been increasingly strengthened between 2002 and 2014. Legislation in 2006 allowed the stripping of citizenship from dual nationals, even if UK-born, whose presence in the UK is deemed by the Home Secretary to be ‘not conducive to the public good’. This is truly wide-ranging and vaguely expressed, making no mention of terrorism, and echoes the standard used for regular deportation cases.

Since 2014, the UK has taken an even tougher approach to citizenship deprivation, allowing citizenship to be stripped when a naturalised British citizen has done something ‘seriously prejudicial to the vital interests of the UK’. This legislation raised the standard to that required for the UK’s exception under the 1961 Convention (though there remains a dispute as to whether it really provides legal cover for creating statelessness). The Home Secretary, who exercises this power, only needs ‘reasonable grounds’ for believing the person could acquire another nationality, opening the door wider to potential statelessness.

The ‘reasonable grounds’ criteria is worryingly broad. Most countries have strict good conduct requirements to acquiring or re-acquiring citizenship. Having been stripped of citizenship for suspected terrorism is unlikely to help an applicant past the first hurdle.

Given the extreme nature of the sanction, and the uncertainty of its consequences, taking the risk of making a person stateless (even if only in the short term) is unacceptable. As Chief Justice Warren said, denationalisation is ‘the total destruction of the individual’s status in organised society’ and ‘a form of punishment more primitive than torture’.

Legal limbo

How can a person, especially one who is overseas and cut off from their national legal system, effectively challenge such a decision and avail themselves of state protection?

Having lost citizenship, there is only a 28-day window to appeal under UK law. Taking into account most denationalisations appear to have happened when someone is overseas (often in under-developed countries or war zones with limited communication), the opportunity to appeal is hobbled. Official letters informing someone they are a non-citizen are sent to the last-known UK address, leaving families to find a way to pass on the bad news to an individual abroad.

In the UK, the case of Mahdi Hashi illustrates the point (see box: Mahdi Hashi: British and banished). As Baroness Helena Kennedy QC, former Co-Chair of the IBA’s Human Rights Institute and Mahdi’s lawyer, explains: ‘Mahdi’s case was that citizenship is not conferred by default. It was necessary for someone to go through certain procedures of application to secure Somalian citizenship. He was born there but lost citizenship on becoming a British citizen under Somalian law at that time. He needed to acquire Somalian citizenship by taking active steps.’

It appears that the UK intends to ignore or avoid many of its obligations in relation to those who may be alleged to have committed or otherwise been involved in terrorist-related acts

Guy Goodwin-Gill
Professor of International Refugee Law,
Oxford University

Kennedy outlines how these practical problems affected her client, Mahdi Hashi, who was in a failed state, Somalia, when his family eventually managed to contact him. When he travelled to the neighbouring country of Djibouti, which he says was in order to access a British embassy (following advice given to his family by the UK authorities), he was arrested by secret police. He claimed he was British, only to be disowned by the UK authorities. Kennedy concludes from her experience with Mahdi Hashi’s case that, ‘removal of citizenship is a political process which can be grievously abused and was abused in the case of Hashi’.

The propaganda war

The ‘Beatles’ is the nickname given to the four British Islamic State (ISIS) fighters who held over 20 foreigners hostage (and executed a number of them). The two remaining alleged ‘Beatles’ (Alexanda Kotey and El Shafee Elsheikh) have been held in a makeshift prison in northern Syria under Kurdish guard since early February. The UK government would not initially confirm or deny if it had removed their citizenship.

In the meantime, the detainees have been making the most of their access to the media, giving interviews to Sky News and Associated Press in March. Seated comfortably on a sofa, the softly spoken, clean-shaven men in red and blue sweatshirts expressed indignation about being deprived of their rights. One of the detainees, Elsheikh, said: ‘When you have these two guys who don’t even have any citizenship… if we just disappear one day, where is my mum going to go and say “where is my son”?’ The other detainee, Kotey, added, ‘I was born in the UK, my mother was born in the UK. I have a daughter there in the UK…’

The former hostage, French journalist Nicolas Hénin, who was held by the ‘Beatles’ for ten months prior to release, has warned of the dangers of allowing terrorists to control the narrative in this way and also expressed the injustice felt by victims when their oppressors can present themselves as the abused ones: ‘You can’t do anything worse with a terrorist than giving him the chance to depict himself as a victim [sic]. Because he’s not. Because we are.’

During the interview, the two detainees skilfully equated their association with ISIS and its brutal beheadings to the UK governments’ dealings with the Saudi government, which metes out similar punishments under Sharia law. This is no doubt music to the ears of some disaffected Muslims watching in deprived inner-city areas in Western countries.

Kotey even suggested the fairest venue for a trial may be the International Criminal Court in The Hague, the Netherlands: ‘That would be the logical solution.’ But, whether a national or international trial, let us not allow the terrorists to take the moral high ground by claiming a denial of due process. As Hénin stresses, a trial is vital to ‘provide the public with a picture of justice and dignity, which are essential weapons again terrorism, and values often highjacked by terrorists’.

National justice systems should rise to the challenge

Under various international anti-terrorism treaties, the obligation to investigate and prosecute terrorist offences falls to national governments. Guy Goodwin-Gill, Emeritus Professor of International Refugee Law at Oxford University, said in a legal opinion in March 2014: ‘It appears that the United Kingdom intends to ignore or avoid many of its obligations in relation to those who may be alleged to have committed or otherwise been involved in terrorist-related acts...’

National laws on citizenship deprivation undoubtedly run counter to the principle of global cooperation in the international fight against terrorism. As Williams says: ‘Citizenship removal should not be used as a punishment or means of managing national security risk. If nothing else, this has the effect of leaving other nations to deal with the problem.’ Frequently, the states where the problem is dumped are war zones or countries with weak legal systems and non-existent or fragmented governance.

Citizenship deprivation, when it leaves the recipient in legal limbo, makes him or her vulnerable to mistreatment by another state, such as in the case of Mahdi Hashi. But even more sinister consequences may result.

Mahdi Hashi: British and banished

Mahdi Hashi was born in Somalia and came to the UK with his parents in 1995. He became a British citizen in 2004, aged 14. He was later employed as a care worker in London. In 2012, while in Somalia, he was deprived of his British citizenship by the UK government. The order said: ‘The Security Service assess that you have been involved in Islamicist extremism [sic] and present a risk to the national security of the United Kingdom due to your extremist activities.’ Hashi claims he then travelled to Djibouti to launch an appeal via the British consulate, but was arrested by the secret police there. While detained, he was treated harshly (as acknowledged by US authorities) and interrogated by FBI agents.

In November 2012, Hashi was transferred by US officials from Djibouti to New York where he was detained in solitary confinement in a Manhattan prison. He spent 23 hours a day in a small cell for over two years before pleading guilty in 2015 to a charge of supporting al-Shabaab, a Somali terrorist organisation.

In January 2016, Hashi was sentenced to nine years in prison. He remains in solitary confinement in a maximum security prison in the US subject to Special Administrative Procedures, which mean he is unable to communicate in any way with fellow prisoners. His family, who he speaks to once a month by telephone, are banned from discussing his case with anyone, including journalists. Hashi is said to have been on a hunger strike and in poor health, but this cannot be confirmed.

Meanwhile, in 2015, Hashi’s appeal in the UK against loss of citizenship was dismissed by the Special Immigration Appeals Commission, for being outside the 28-day time limit. In 2016, the Court or Appeal dismissed his further appeal.

Hashi’s UK lawyer, former Co-Chair of the IBA’s Human Rights Institute, Baroness Helena Kennedy QC, has this to say about his case: ‘he was rendered stateless by the removal of citizenship. That as a result of statelessness his human rights were profoundly abused. He had no consular access and no legal advice, no deportation or extradition proceedings took place. He was handed over to US authorities, hooded and transported without due process to the United States. This was rendition. Made possible by the conduct of the British state.’

Two alleged dual nationals, Bilal al-Berjawi and Mohamed Sakr, had their citizenship revoked by the UK government for terrorist-related reasons in 2010. They were assassinated by separate US drone attacks in Somalia in 2012. Though there is no conclusive link between citizenship deprivation and the killings, the UK enjoys a convenient legal deniability when the target of an assassination is not a citizen. According to Hannah Arendt, even the Nazis ‘were such legal pedants’ that they deprived ‘those they intended to exterminate of their citizenship’.

We have had some very high-profile cases in Canada where people were found to be terrorists, or connected to terrorists, which ultimately turned out to be false

Catherine Sas QC
Senior Vice-Chair, IBA Immigration and Nationality Law Committee

Moreover, citizenship deprivation helps to feed the agenda of those captured but not brought to trial. For example, the so-called ‘Beatle’ Kotey sounds reasonable when he says: ‘Many more people like myself will be stripped of rights and citizenships…[H]olding people accountable for things they didn’t do… will only breed more negativity and violence on both sides.’

The fate of the two ‘Beatles’ has been shrouded in uncertainty for some time. But in July, after almost six months of silence, a little of what has been going on behind the scenes between the UK and US governments came to light, thanks to a letter from the UK Home Secretary to the US Attorney General, which was leaked to The Telegraph newspaper.

In his letter, the Home Secretary said that obtaining convictions was more likely to be possible in the US. In exchange for prosecution of the two men in the US, the UK agreed to hand its evidence to US officials without seeking the usual assurance that the US would not impose the death penalty, which flies in the face of a long-standing UK government policy.

As Nicholas J Lewin, a former counterterrorism prosecutor in Manhattan, told the Washington Post, ‘It’s an extraordinary statement about the British reluctance to prosecute these men, that they’re willing to withdraw requirements that they have imposed on US cooperation for so long.’

It was then confirmed that British citizenship had indeed been removed from the two men: ‘We’re not talking about UK citizens,’ the UK Security Minister told Parliament. Why had this fact, now so casually revealed, been shrouded in secrecy for months? Meanwhile, the UK Prime Minister’s office said that no final decision had been made about where the men might stand trial, which inevitably brings to mind the old legal maxim of ‘justice delayed is justice denied’.

This legal and political game of ‘pass the parcel’ between the UK and the US risks leaving already long-suffering terrorist victims even more uncertain of when, or if, they will ever get justice. Furthermore, a challenge in British courts to the secretive ministerial reversal of UK government policy on the death penalty may now be on the cards, which – with mooted parliamentary objections – is likely to lead to greater delay.

The victims

Finally, what of the victims of terrorism? Time and again their pleas (or the pleas of their families) for an opportunity to face the accused have been made public. Bethany Haines is the daughter of aid worker David Haines who was beheaded by ISIS. When she was 17, she watched the film of his execution in an eternal loop in her bedroom, unable to cry for months. She wants his killers locked up and the key thrown away, but still says, as she told the media: ‘If it goes to trial I certainly will be there, I would certainly want to look them in the eye… I would hope that they would show some sort of remorse, seeing the families.’

Likewise, Hénin, who endured the daily brutality of the ‘Beatles’, fearing for his life and facing the fact that some of his fellow hostages were doomed to die, also wants to see his tormentors in court: ‘If such trial happens, I’ll attend it. I need to face them one last time. Make them listen to my grievances. Give them a chance to realise what they’ve done to me.’

Justice is paramount, as Diane Foley, the mother of ISIS-executed US hostage James Foley, has said: ‘I would like them to be brought to trial in the US, but as long as they’re brought to fair trial and detained and justice is served…’ But she also warned against imposing the death penalty, which ‘would just make them martyrs in their twisted ideology’.

We should admire those victims and relatives who are able to be rational in the face of the most horrific and devastating emotional experiences of their lives, such as the beheading of a loved one or a friend, whether witnessed first-hand or by video.

If the victims and their families can have faith in their legal systems to deliver the rule of law, why can’t their governments?

Anne McMillan is a freelance writer. She can be contacted at mcmillan.ae@gmail.com