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.

SUJOY BHATTACHARYYA <CALCUTTA>

‘Dueling’ Citizenships a Terror for Terror Suspects

‘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.

Nearly 43,000 foreign men, women, and children linked to ISIS remain detained in inhuman or degrading conditions by regional authorities in northeast Syria, two years after they were rounded up during the fall of the Islamic State “caliphate,” often with the explicit or implicit consent of their countries of nationality, Human Rights Watch said today

It’s especially murky for those with Western or dual citizenships.

A case in point is that of Jack Letts’, aka Jihadi Jack, who has been held since 2017 and whose parents, being British-Canadian dual citizens, wrote to the Canadian government, this month to request that their son be given access to Canadian officials to apply for Canadian citizenship.  Letts had hoped to return to the UK but learned in 2019 that Her Majesty had revoked his citizenship. Letts who was born and brought up in Oxford, UK, has the right to apply for a Canadian passport because both his parents are Canadian as well as British (he needed only one of them to be Canadian to technically have the right to apply). But he has no access to a Canadian mission, under ordinary circumstances, he might apply.

The unilateral move by the British government, based on a law brought in by the erstwhile Theresa May’s government (perhaps her only defining achievement, if it can be called that) caught the Canadian government off guard.  While Letts has never had a Canadian passport, if he is deported from Syria, it is likely that he would end up in Canadian custody now that the Brits declared Letts persona non grata.

Understandably, Canadian Prime Minister Justin Trudeau has been 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.”

Trudeau’s liberals are in a minority government, 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 reticence about letting Letts come to Canada is the opinion of many legal experts that the Canadian government wouldn’t be able to charge him with much.

Unfortunately for Canadian prosecutors, Mr. Letts’ travelled 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 Canadian 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 in 2019, the administration’s head of foreign affairs, Abdul Karim Omar, said, the fact so few nations had repatriated their citizens who joined IS 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, then 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: rather, it’s the third such case in which the UK government has revoked citizenship. In one case, that of Shamima Begum who was born in the UK to Bangladeshi immigrants, the government has left her stateless while she 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. So far, there are no takers in Dhaka.

Legal experts are divided on the issue.  JK Das, Dean of Hazra Law College, 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 that cannot be set aside and 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, asserts 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.”

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, 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.”

This appears to be just the kind of situation in which the United Nations and international Criminal Courts should intervene. So far, nobody but the prisoners and prison wardens seem to be calling for their help. For the rest of the world, it’s someone else’s problem.