Should governments permit their citizens who joined ISIS’s caliphate to return home? According to the law, yes. In spite of it, some countries are saying no.
Hoda Muthana, a college student and American citizen, left her home in Alabama for Syria, becoming an ISIS bride and the mother of a now 18-month-old son. Four years after she left the United States, Hoda is expressing enormous regret and remorse, pleading for the U.S. government to uphold her constitutional right to return to America [PDF], and accepting that she will likely face serious legal consequence as a result.
Likewise, Shamima Begum, a British citizen who at age 15 left for Syria, is also asking the United Kingdom to respect her right to return, along with her newborn, who is also a British citizen. Despite their legal obligations, the United States and the United Kingdom have not only barred these women’s entry but are attacking the foundations of that right by going after Hoda and Shamima’s citizenship—a status which is indisputably theirs to hold.
Deprivation of citizenship is an act usually linked with despotic and authoritarian regimes. Images come to mind of mass expulsion of Dominicans of Haitian descent expelled from the Dominican Republic, the ethnic cleansing of the Rohingya in Myanmar, and the coercion of Japanese-Americans to relinquish citizenship using internment during World War II. Yet today, citizenship revocation is a dangerous trend emerging among political leaders in what most would call established democracies. The United States and the United Kingdom have come too far to revert to arcane practices of exile and banishment.
Citizenship is the most fundamental of human rights. It is not a privilege, reserved for those without flaw, but instead a right in every legal sense of the word. The U.S. Supreme Court acknowledged this fact in 1967 when it held that a government lacks authority to revoke citizenship, declaring that the court did “no more than to give to this citizen that which is his own.”
The Court has ruled many times on the unconstitutionality of unilateral citizenship deprivation, including in cases of criminal misconduct, holding that “[c]itizenship is not a license that expires upon misbehavior . . . deprivation of citizenship is not a weapon that the government may use to express its displeasure at a citizen’s conduct, however reprehensible that conduct may be.” Just as we would not expect another parent to care for one’s own misbehaving child, the government cannot offload those they deem undesirable onto other foreign states. Similarly, in these situations, it is not another nation’s responsibility to deal with another nation’s citizens. If misconduct makes one unworthy of citizenship in one country, it would presumably make one equally unworthy of citizenship elsewhere.
Relinquishing responsibility for one’s citizens by transforming them into foreigners undermines the global cohesion needed to address the cross-jurisdictional threat of terrorism, and there is no evidence that stripping citizenship is effective in tackling the problem. Not only is the method absurd; it is negligent at best. Rejecting suspected terrorists from entering their own county based on a national security rationale is antithetical to national security. The U.S. government has even asked other governments to do what they will not in Muthana’s case. In early February 2019, the U.S. State Department called “upon other nations to repatriate and prosecute their citizens” implicated for involvement with ISIS in Syria.
Some analysts point to the lack of availability of evidence in ISIS-related cases, and the concern there is not enough to convict, meaning perpetrators could walk free in their home countries. However, the United States and the United Kingdom have robust legal systems in place to deal with criminal misconduct—and particularly terrorism. Banishing citizens for such misconduct not only allows the person to evade accountability; it undermines a country’s claim of having strong rule of law and signals that it can't—or won't—administer justice in these cases.
The options are simple: allow citizens to return and face justice, or keep them out and let them remain free with impunity. Exiling nationals is the work of tyrants, not democracies; and revocation of citizenship without due process is contrary to the values of the U.S. justice system and the British one on which it was modeled. Declaring Hoda and Shamima no longer citizens is not just illegal, it is wrong.