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Our “Barbarians” at the Gate: On the Undercriminalized Citizenship Deprivation as a Counterterrorism Tool

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Abstract

Germany is joining a long list of European democracies that have modified or expressed a willingness to modify their citizenship laws to denationalize first and then prevent the return of or expel those citizens accused of having participated in terrorist activities abroad. The formal labelling of citizenship deprivation as an administrative measure outside the scope of criminal justice has prevented scholars of criminal law from undertaking a thorough scrutiny of its legitimacy. In this paper I seek to fill this gap. Specifically, after demonstrating why deprivation of citizenship is a measure of a criminal nature, I argue against its legitimacy, either as a punishment or as a risk-based measure. Instead I propose that we should understand citizenship deprivation as a paradigmatic response from an illegitimate enemy criminal law. Notwithstanding the foregoing, I claim that states that choose to denationalize terrorists should do it within the framework of a process with the highest (criminal procedural) guarantees.

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Notes

  1. I take the example from Tripkovic (2019, 90–91).

  2. Duff (2018, 138).

  3. In this article, I use citizenship “denationalization/deprivation/withdrawal” indistinctly. I would like to thank the anonymous reviewer from Criminal Law and Philosophy who made me realize in time that the term “expatriation” has a wider meaning than just the forcible permanent removal of citizenship, namely, the use of force or law to remove people from their own countries. I also use the notions of citizenship and nationality in an equivalent manner, although conceptually they do not necessarily overlap. For discussion, see Gibney (2017, 361).

  4. For a general overview, see Gibney (2013a, 221–223), (2017, 364–367), Kingston (2005).

  5. For views of this kind, see Macklin (2014, 1–3), Zedner (2019a).

  6. On this trend, see, e.g., Cloots (2017, 57–58), Pillai/Williams (2017, 522), Esbrook (2016, 1275–1276). On the use of immigration and citizenship law as a tool of counterterrorism, see also Ashworth/Zedner (2014, 242–247), Zedner (2016a, 4–8), Zedner (2019b).

  7. Despite the fact that the United Kingdom is a signatory to the 1961 UN Convention on the Reduction of Statelessness. For more on this, see Zedner (2016a, 8–12).

  8. For a general overview, see Shachar (2012), and Gibney (2017, 376–377), who rightly warns that denationalization fits well with the modern meritocratic view of citizenship as a privilege, one conditional upon conformity with standards of behaviour or values.

  9. See, e.g., Dubber (2010) or Zedner (2013).

  10. See, e.g., Bennett (2016, 411–425), or Tripkovic (2019). On the surreptitious revival of “civil death” in the form of aggregated collateral consequences (disenfranchisement, criminal registration and community notification requirements, ineligibility to live, work, etc.), see Chin (2012) and Kleinfeld (2016, 966–971).

  11. Something different happens in the Anglophone discussion. See, e.g., Lavi (2011, 2010), Gross (2003), Zaibert (2008).

  12. This point of view is clear in the German discussion: although Art. 16 of the Basic Law for the Federal Republic of Germany prohibits the “deprivation” (Entzug) of citizenship, its loss or forfeiture (Verlust) is allowed; thus, the denationalization of a terrorist, like that of a soldier who joins foreign troops, would not be a (criminal) sanction but the declaration of the new status freely configured by the affected person. The German Constitutional Court distinguishes between the two concepts on the basis of the avoidability of the behaviour that determines it. On this, see Cloots (2017, 60–63). This distinction obscures the fact that, ultimately, the state withdraws the citizenship—also against the will of the affected party.

  13. This is the case, for example, in the United Kingdom, Austria, the Netherlands, and Germany.

  14. Steiker (1998, 777).

  15. Although there are several recognized causes of loss of nationality in citizenship law (e.g., fraudulent acquisition, voluntary renunciation, or incorporation into foreign troops), from now on I am interested only in the forced withdrawal by the state of the citizenship of those who have participated in terrorist activities. Nor do I deal here with cases in which a terrorist who has no material link (genuine connection) with the state in question is deprived of his nationality. See on this below n. 64.

  16. See the discussion in Ball (2011, 119–135).

  17. Joppke (2016, 734) claims that the “decoupling of citizenship stripping from penal law is a deliberate measure to sidestep the higher burdens of proof that the state meets in criminal law”. For a similar approach, see also Ashworth/Zedner (2010, 77), Zedner (2007, 264–273).

  18. For a defence on the pragmatic approach in defining “criminal” law, see Chiao (2019, 182–210), Ball (2011, 119–135), or Ristroph (2008, 1394–1406).

  19. To establish a test for determining the meaning of a “criminal charge”, three criteria were developed by the Strasbourg Court in the leading case of Engel [Engel v Netherlands (1979–1980) 1 EHRR 647]: (a) the formal label, which serves only as a starting point; (b) the nature of the offence and the proceeding to which it gives rise; c) and the severity of the penalty. For discussion on this “anti-subversion doctrine”, see, e.g., Trechsel (2005, 14–30).

  20. On the punitive rationale of the citizenship deprivation, see Gross (2003, 58), Joppke (2016, 734–735), Lavi (2011, 788–789), Zaibert (2008, 386), or Cheh (1991, 1363): formal labelling is irrelevant when “the punishment imposed so dramatically expresses societal disapproval that its imposition only can be legitimated through the ceremony of a criminal conviction”. That is the case of execution, incarceration, and loss of citizenship.

  21. For essential reading on this phenomenon and its perils, see Ashworth/Zedner (2010). They allude to undercriminalization as the phenomenon of regulating coercive measures of a criminal nature outside the criminal sphere to avoid the procedural protections of criminal law. On this, see also Zedner (2016b).

  22. Duff (2009, 13).

  23. The penal risk-based measure is necessarily post-criminal. The previous crime is not its foundation, as it is based solely upon a prediction concerning future offences, but its prior commission is a fundamental external limit. On this, see, e.g., Robles Planas (2007, 3–8).

  24. On the (in)compatibility of denationalization with the Engel test, see, e.g., Cloots (2017, 81–82).

  25. For a related discussion, see Mantu (2015, 298–310).

  26. See, e.g., Cancio Meliá/Petzsche (2013, 87–92).

  27. For more detail on this, see Zedner (2019a, 327, 342).

  28. See Cheh (1991, 1352–1353, 1363), Greco (2015, 683–684).

  29. For further discussion, see Gibney (2019).

  30. See also Zedner (2016a, 8), and Lenard (2016, 84), who suggests that citizenship deprivation could make the denationalized a potential target of counterterrorist killing operations.

  31. For more on this, see Mantu (2018, 29–31).

  32. Lavi (2011, 795–797). In the same sense, see Gross (2003, 66).

  33. Lavi (2011, 800–801).

  34. Lavi (2011, 805). See also Gross (2003, 60), who also legitimizes criminal denationalization, which nevertheless highlights it deterrence function.

  35. See Scheffler (2006), Cancio Meliá (2011).

  36. Pawlik (2017, 56). See also Duff (2001, 72, 77–79), and Lacey (1988, 171–186).

  37. For a general account on citizens’ criminal law, see Duff (2010, 300–304, 2018, 102–145), and Pawlik (2017, 29–46), with further references.

  38. For this view, see Silva Sánchez (2018, 221–222), Pawlik (2017, 56), Du Bois-Pedain (2017), Duff (2003, 709, 2010, 301).

  39. Duff (2011, 140).

  40. Pawlik (2017, 56), Duff (1998, 256, 2018, 137–142, 192–201). Duff nevertheless understands that this is a question of how inclusive the polity wants to be. In my opinion, however, the very concept of legitimate punishment precludes the possibility of punishing through denationalization: no one should bear a punishment consisting in the definitive loss of citizenship.

  41. Duff (2010, 301). For a similar view, see Cohen (2016).

  42. The same conclusion will also be reached by those who legitimize punishment on the basis of its deterrence function. There is no evidence that citizenship deprivation will deter a person who is willing to die for a cause. See on this Macklin (2018, 171).

  43. See, e.g., Ashworth/Zedner (2010, 61–63), Tripkovic (2019, 61–64).

  44. On this, see Husak (2013).

  45. See, e.g., Husak (2013), Zedner (2016b), and recently Puente Rodríguez (2019, 6–10).

  46. On overprediction and the respect of the human agency on assessing risk-based measures, see, e.g., Von Hirsch/Wasik (1997, 607–608). Specifically, in the context of denationalization, see also Lenard (2016, p. 86).

  47. For a discussion of this point, see Carey (2018, 898). For a general questioning of the preventive effectiveness of the exceptional criminal law against terrorism, see Cancio Meliá (2011, 113–117).

  48. Depending on the destination country, deportation may make it easier for the individual to engage in activities that pose a threat to the community expelling him. For this argument, see Lenard (2016, 85). For alternative proposals to fight terrorism (e.g., passport suspension, temporary exclusion orders, rehabilitation programs, and increased border security), see also Esbrook (2016, 1312–1328, Zedner (2019b, 107–114).

  49. See, e.g., Cohen (2016, 255–256).

  50. Among the many works of Jakobs on this topic, the following are fundamental: Jakobs (2004a), recently (2019). For an English-language introduction to the approach, see also Jakobs (2014, 415–424). A general overview can also be found in Cancio Meliá (2011). For a deep and persuasive critique, see Greco (2010).

  51. On this, see Jakobs (2004b, 44): “Anyone who does not allow himself to be forced under a bourgeois constitution may be forced to separate, whereby at this point, with regard to the question of the legitimacy of risk-based measures, it should be the same whether the enemy is thrown out of the country or thrown into preventive detention for lack of a possibility of expulsion from the country”.

  52. Jakobs (2004a, 90–92). In the same sense, see Joppke (2018, 184): “International terrorists are not criminals but warriors – they don’t want to be ‘reintegrated’. The liberal state should acknowledge their claim, eye to eye, by taking away from them what they have factually renounced and even wish to destroy”.

  53. See, e.g., Ohana (2010, 727–741).

  54. Duff (2011, 146–147), Silva Sánchez (2017, 3–10). On the terrorist as an enemy combatant, see Pawlik (2008).

  55. Some accounts rest precisely on this argument to explain any criminal punishment; see, e.g., Morris (1991). For a recent attempt to rehabilitate a rights forfeiture account, see Wellman (2017, 12–42).

  56. Dubber (2010, 200–215).

  57. For further discussion, see Lacey (1988, 171–181), Duff (2018, 185–201), and Pawlik (2017, 35–46). On criminal law as a republican practice, see also Pettit (1997), Dagger (2011, 59–64).

  58. Lacey (1988, 171–173), Du Bois-Pedain (2017). I am, of course, aware that legitimacy of denationalization can also be denied on the basis of classical liberal conceptions. See an attempt in Gibney (2013b, 651–652). I do believe, however, that, from the political philosophy perspective accepted here, it is simpler to explain why citizenship deprivation should not be taken into consideration under any circumstances. On this same opinion, see Aleinikoff (1986, 1494–1498).

  59. Citizenship co-determines in general the individual identity of a person in the same way that the state is configured and determined by the sum of some citizens who, to a great extent, do not choose freely either. See, on this view, Aleinikoff (1986, 1494).

  60. See Shachar (2012, 1005). Arguing critically against citizenship as an ascribed right by birth, see also Shachar (2009). It is true that a minimal percentage of citizens, Shachar (2012, 1005) states 3%, are able to gain a new citizenship post-birth through migration and naturalization. To the extent that these citizens retain their nationality of origin, which is not always possible, they are called upon to undergo denationalization in a primary way. My argument, however, is not valid here because these are subjects who do commit themselves freely to their new states. Although it is true that the thesis of relinquishment is stronger here, the denationalization of the nationalized is equally illegitimate. Accepting the citizenship deprivation of the nationalized implies the creation of two qualitative levels of citizenship: a real (first-class) citizenship and a provisional (second-class) one. This discrimination is hardly justifiable and offends the idea that citizenship, as the grounding principle of state membership, simply ought to be a status that admits of no gradations. For more on this, see Gibney (2019, 10–16). However, although nationalized individuals effectively consent at first, the bond usually becomes organic over time, which also co-determines the identity of the nationalized citizen. In fact, the candidate for nationalization is not only required to have resided in the country for a period of time or to be committed to the law but also to have assumed the fundamental values (cultural and political) of the country (citizenship tests). See on this Shachar (2012, 1013). Here, too, we are not faced with yet another synallagmatic contract but rather with a deep and essential relationship for the life project of the nationalized citizen.

  61. On what is wrong with the marketization of citizenship, see Shachar (2018, 2017, 804–810).

  62. Duff (2009, 15): although he leaves the door open for the terrorist to be treated as a combatant.

  63. See Duff (2018, 141).

  64. Aleinikoff (1986, 1495). Something different, however, might apply in cases where someone has a second citizenship without any material link with the state in question. This formal relationship is contrary to the principle of the “genuine connection” (International Court of Justice: Nottebohm (Liechtenstein v. Guatemala) 1955), regulating nationality in international law, and the withdrawal in such cases could in certain circumstances be legitimate to the extent that a formal fiction of citizenship is simply nullified. Expatriation would constitute neither a great erosion of citizen rights nor an attack on the identity of the affected person qua citizen. In fact, it is common for non-resident citizens to have fewer civic and political rights; for example, they do not have the right to vote or the social service provision. See, however, Lenard (2018, 107–110), who does not accept citizenship deprivation even in these limited cases.

  65. On this point, see Duff (2018, 141, 192–196).

  66. For a largely persuasive case for that point, see Silva Sánchez (2018, 215–241).

  67. For further argument, see Aleinikoff (1986, 1496), Gibney (2017, 374–375), Lenard (2018, 106–107).

  68. Voltaire (1836, 128).

  69. On this argument, see Carey (2018, 906–908). Barry and Ferracioli’s thesis (2016, 1065–1070) that denationalization is legitimate when an act of terrorism is supported by the second state that is to receive the terrorist after expulsion overcomes this last objection. However, even in this case, the citizen is deprived against his will of a fundamental part of his identity, which cannot be justified from an integrative republican perspective such as that defended here.

  70. An additional problem with the admission of expatriation of terrorists is the risk of contamination (slippery slope). On this, see, e.g., Cancio Meliá (2011, 120–122). Whoever admits the denationalization of the terrorist, especially because of its supposed preventive force, will have a hard time explaining why not to expatriate the murderer or rapist, who is at high risk of recidivism.

  71. Chiao (2019, 182–210). Regarding the collateral consequences, in this same direction, see Chin (2012, 1825–1832).

  72. In this sense, see Gross (2003, 60). See also Zedner (2013, 53, 2007).

  73. For other prominent safeguards applicable to criminal cases under the ECHR, see Trechsel (2005), Campbell/Ashworth/Redmayne (2019, 34–36).

  74. See also Gross, (2003, 68–71). On the substantive approach by the Strasbourg Court to the notion of “penalty” in Art. 7 ECHR and the prohibition of the retroactive imposition of formally non-criminal measures, see Ashworth/Zedner (2010, 76).

  75. In cases in which the terrorist is prosecuted for committing criminal offences, it could also be considered whether denationalization is a measure that would violate the double jeopardy clause (non bis in idem). The answer to this question deserves further investigation, which cannot be carried out in this article. Whoever admits the legitimacy of denationalization will have to fundamentally explore the coincidence between its foundation and that of criminal punishment. If they coincide, both measures cannot be applied cumulatively. On protection against double jeopardy, see Trechsel (2005, 381–402).

  76. For a full discussion, see Gross (2003, 68–71).

  77. See, e.g., Zedner (2016a, 7, 11–12).

  78. See further Trechsel (2005, 81–116).

  79. For discussion, see Davis (2016).

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Acknowledgements

I am most grateful to Jesús-María Silva Sánchez, Michael Pawlik, and Cristian Irarrázaval for their helpful comments and suggestions. Work on this article was supported by the Alexander-von-Humboldt Foundation and the Ministry of Science, Innovation and Universities of Spain [Grant number: I + D DER2017-82232-P (AEI/FEDER, UE)].

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  1. Department of Law, Pompeu Fabra University, Barcelona, Spain

    Ivó Coca-Vila

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Coca-Vila, I. Our “Barbarians” at the Gate: On the Undercriminalized Citizenship Deprivation as a Counterterrorism Tool. Criminal Law, Philosophy 14, 149–167 (2020). https://doi.org/10.1007/s11572-019-09517-5

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