Dueling Citizenships: Fate of Western ISIS Captives Uncertain as Crisis Looms
‘Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality, nor denied die right to change his nationality.’– Article 15 of the 1948 Universal Declaration of Human Rights.
ELA SANYAL <CALCUTTA>
With a sudden green light from Donald Trump, Turkey readies for a push against Kurdish forces in Northern Syria, putting the fate of prisoners kept under Kurdish custody under a darker cloud.
It’s especially murky for those with Western or dual citizenships.
Recently, Jack Letts, more infamously known as Jihadi Jack, languishing since 2017 in a Kurdish prison but hoping to return to his native Britain, learned that Her Majesty has revoked his citizenship. Letts ,who was born and brought up in Oxford, UK, has the right to apply for a Canadian passport as both his parents are dual British/Canadian citizens.
The unilateral move by the British government, based on a law brought in by Theresa May’s government (perhaps her only defining achievement, if it can be called that) has caught the Canadian government off guard. While Letts has never had a Canadian passport, if he is deported from Syria, he would surely end up in Canadian custody now that the Brits have abdicated their responsibility to their former national.
Understandably, Canadian Prime Minister Justin Trudeau was circumspect in discussing the matter with the press, commenting only that “it is a crime to travel internationally with the aim of supporting terrorism,” adding: “And that is a crime that we will continue to make all attempts to prosecute to the fullest extent of the law. That is the message we have for Canadians and for anyone involved.”
An election is looming in less than a month, and the prospect of letting a suspected terrorist rejected by the UK into Canada is not one for which much of the electorate has any patience. Adding to the general feeling of distaste at abetting Letts’ entering Canadian borders is the opinion of many legal experts that the Canadian government wouldn’t be able to charge him with anything much. The reason is that Mr. Letts’ traveled to Syria on his British passport from within the territory of the UK. It is a crime in Canada to travel for purposes of engaging terrorism aiding in terrorist acts either from Canadian borders or while using a Canadian passport. Mr. Letts appears not have broken this specific law.
As for acts for which he is accused outside of Canada’s jurisdiction – due process must be followed before Mr. Letts is taken into custody in Canada. Currently, Letts is being held in a prison camp run by American-backed Kurdish fighters in Northern Syria. The Kurdish-led administration in this area has called for the creation of an international tribunal to try the thousands of suspected ISIS members in their custody.
In a statement, the Kurdish administration called for “a special international tribunal in North-East Syria to prosecute terrorists” to ensure that trials are “conducted fairly and in accordance with international law and human rights covenants and charters”.
Speaking to the BBC, the administration’s head of foreign affairs, Abdul Karim Omar, asserted that the fact that so few nations had repatriated their citizens who joined ISIS has added to their problems.
Britain and Canada are included among the Western nations, which have either refused or made no attempts to repatriate their citizens amid concerns over the potential security risks they may pose, as well as the challenges of gathering evidence to support prosecutions. Indeed, Public Security Minister Ralph Goodale has said that Canada is under no obligation to help John Letts to gain refuge in Canada.
The circumstances, which Letts faces is not new: it is no less than the third such case in which the UK government has revoked citizenship. In one case, that of Shamimi Begum who was born in the UK to Bangladeshi immigrants, the decision to revoke her citizenship has essentially left her stateless while she still remains in a refugee camp. It is contrary to International Law to leave someone stateless. However, Britain has argued that Begum had the right to apply for a Bangladeshi passport by right of ancestry, and therefore, the UK was not flouting International Law. Naturally, the Bangladeshi government has taken great umbrage at this presumption by the British government: it seems rightly a tad colonial to them but probably resonates with the hoards of Brexiters that form the Conservative Party’s core constituency.
Legal experts are divided on the issue. Professor Jatindra Kumar Das, Dean, Faculty of Law, University of Calcutta, maintains that Citizenship is an absolute and fundamental right, which nations operating within the ambit of international agreements must respect. “It is jus cogens,” he says quoting the Latin phrase meaning compelling law. “In other words, while countries are only technically bound by their own laws, jus cogens asserts that the principles which form the norms of international law cannot simply be ignored. So, countries are compelled to follow the international laws…. Indeed, whether you look at the Universal Declaration of Human Rights or the 1961 UN Convention (banning the revocation of citizenship based on race, religion or politics or the circumstance of leaving someone stateless) the conference of Nationality on an individual should be interpreted as a fundamental right.”
Not all experts agree: Professor Manoj Kumar Sinha, former Director of the Indian Society of International law and professor at West Bengal Institute of Juridical Sciences, maintains that local jurisdiction reigns supreme.
“While International Law offers a legal framework in which countries should operate, they are only compelled to follow their own national laws. And, when such laws conflict with International Law, the national law wins out,” says Sinha.
So, is Britain within their rights to strip Letts and others of citizenship. Sinha says, technically, the answer is “yes”. However, the families have the right to challenge in British courts, and appeal to the European Court of Justice, which is the Supreme Court in matters of European Union Law of which the UK is a signatory. And, Brexit has no impact on the UK being bound by the ECJ.
What about Letts? According to Sinha, “Letts has the right to apply for a passport from the Canadian Government. However, it isn’t automatic that the passport would be granted. Every country has sections dealing with war, conflict, and whether one is allied with any foreign military. He would have to check appropriate boxes on the form and the Canadian government would have to assess the veracity of his responses in making their decision to grant a passport. It is my suspicion that they won’t grant him travel rights into Canada so easily. Letts is in for a long process at least until after the election, and it is far from guaranteed. Having a right to enter and being granted access are not one and the same. Canada could well say they must also consider their relationship with the UK in assessing whether to grant access to their borders. If the UK says this person is too dangerous to let in, Mr. Trudeau can say he must consider this in the context of overall international relations in determining whether Mr. Letts gets a passport.”
“One cannot be left stateless; this is not a matter of debate,” Professor Das reminds us. “In the case of Ms. Begum, that is exactly her situation. And, therefore, she has a strong case for revocation to be revoked, so to speak.”
For many like Begum, who do not have access to consular services of the country to which they, according to to the UN Declaration of Human Rights, belong, the process by which a legal challenge could be lodged is denied them, along with their citizenship. Britain has simply written off Begum et al post-revocation, resulting in people like her remaining in a state of perpetual uncertainty. Meanwhile, the Kurds cannot keep them forever, which is why, having been on the frontlines of the West’s apparent war on ISIS (otherwise known as proxy war on the regime of Bashar Al Assad) the Kurd’s feel understandably aggrieved when their calls for Western nations to take responsibility for their citizens, go unheeded.
This appears to be just the kind of situation in which the United Nations and international Criminal Courts should intervene. So far, the UN has been silent, and international legal charities are not extending their largess to these prisoners. Only the prison wardens seem to be calling for their help while makeshift volleyball courts are built to occupy prisoners to distract from a looming humanitarian crisis. Unfortunately, for the Kurds, who are appropriately engaging international civil society institutions on the developing predicament, for the nations that created these international institutions and due processes as well as raised and schooled the prisoners under scrutiny, it’s someone else’s problem.
The author, Ela Sanyal, is an advocate at the High Court of Judicature, Caluctta and proprietor of Sanyal and Associates LLP, located at Delta House in Central Kolkata. She is also trustee of the International Mass Awareness Programme (a civil society institution, which aids the working poor, especially women) and has practiced law for two decades.