By Jibran Khan* and Kriti Sharma**

Introduction

In a recent judgement, the Supreme Court of the United Kingdom unanimously upheld a 2019 decision that revoked the citizenship of Shamima Begum, who had in the past travelled to ISIS in Syria as a fifteen year old. This piece analyses the rationale behind the decision and argues for restoration of citizenship of former terror recruits, especially those who enrolled in terrorist groups as minors.

The Court’s rationale behind denying Shamima’s citizenships was that permitting her to regain her citizenship and return to the United Kingdom (UK) could pose a future domestic security threat. The assumption at the core of this decision is that the past radicalization of an individual will invariably lead to future harm.

This issue is of importance because it raises concerns about the legal duties a State of origin owes to  former terror recruits who were their citizens, intending to return to their homeland at a later stage. The case of Shamima Begum is a stark reminder that the UK in this case and the global community at large, have yet to develop a comprehensive and effective state policy directly addressing this conflict between balancing the right to nationality and public safety.

There has been a significant number of individuals who have had similar experiences across Europe, with terror recruits travelling to war torn countries and eventually wanting to return to their own country. The de jure or de facto denial of citizenship of former terrorist recruits also impacts children of former citizens who joined terror groups like ISIS by exacerbating their vulnerability.

Policy developments that address the return of former terror recruits become critical in determining State responsibility in identifying and addressing the case of indoctrinated youth. The advantages of a State policy would be to create a definite plan of action that caters to such situations and do not leave the interpretation of domestic and international law to the discretion of the Judiciary alone.

Moreover, a State policy would provide a platform to engage in planning and developing mechanisms for reintegration and enhanced protection of individuals who took the decision to join terrorist groups perhaps without being fully informed of its consequences..

Terror Recruitment & Citizenship 

Official numbers do not exist for the number of people who have left Great-Britain to join ISIS. However, estimates range from 850 to 1200 fighters between the years 2012 to 2019. This data reveals that there has been an active influx of individuals into conflict zones, leaving us to examine reasons for why people in developed nations get radicalized in the first place. The answer is not simple.

The Report of the UN Secretary General on Violent Extremism identifies a combination of “push” and “pull factors” that drive radicalization. Push factors are external, originating from society and pull factors are psychological, comprising of a person’s individual motivations and cognition. The former include lack of socio-economic opportunities, experiences of marginalization/discrimination, violations or abuses of human rights, prolonged/unresolved conflicts and radicalization in prisons. Pull factors include an individual’s background, motivations, collective experiences of victimization arising from oppression, distortion of belief systems, ethnic/cultural differences and social networks.  The impact of propaganda and indoctrination via online tools has only grown in the Covid-19 induced lockdown, post which there is increased exposure to the internet and decreased community surveillance due to heightened isolationist behaviour.

Regardless of the reasons for why this phenomenon is occurring, after being exposed to ground realities of devastating tragedies, international crimes and humanitarian crises, most often women and children find themselves in refugee camps, pleading for their countries of citizenship to rescue them and their children born into war zones. ISIS families are often left in refugee camps without support and, single mothers have to then take care of their families in war zones.

The authors argue that the path left for resolution is two-fold. States can either continue with their policy of non-engagement, whereby the State absolves itself of responsibility for its former citizens actions, leaving them de-facto stateless. This statelessness is induced on grounds of ‘potential threat to the public’. However, for a fair assessment of the same, the State will have to engage and evaluate their citizens. Alternatively, States can choose to focus on creating rehabilitation programs for former citizens and terror recruits to better engage with, understand and resolve the crisis of voluntary recruitment into terrorist groups.

There are a few reasons for why the latter proposal should be considered. The first being that refugee camps are often spaces for the radicalisation of individuals who are regarded as “pipelines” for terrorist groups to infiltrate and stage attacks in the country of asylum. Moreover, the stance of Courts, for instance in the Shamima Begum case, breeds a narrative of abandonment that serves as reinforcement of the portrayal of the State as an apathetic actor, discriminating against its minorities on the basis of religion; in turn validating the terrorist groups’ agenda for armed rebellion. Such abandonment by the UK ignores other States’ response to the disillusionment and remorse of terrorist recruits by initiating amnesty programs.  

Secondly, a policy of blanket ban on restoring citizenship often ignores the fact that some recruits were minors at the time of joining the terrorist organisations and may have not fully realized the magnitude of their decision or who they were engaging with.There have been around 50 recorded cases of minors who have joined the organisation. However, the number might be higher because often these individuals end up travelling under the radar.  This factor breeds complexity in a situation where the age to determine criminal liability in UK is 10 years while the Article 1 of UNCRC recognises that individuals below the age of 18 are recognised as minors. As recently as 2019, experts have urged for the age for culpability to be increased to 12 before it is raised to 14 in the UK– a state of anomaly within the EU. The age for criminal responsibility was set to 10 years in 1963 on the ground that a 10 year old child must be able to “differentiate right from wrong,” severely generalizing trajectory of morality development which is a time and experience dependent process. Moreover, it is “ridiculously low” when the age to consent for sex is 16 and to buy and consume alcohol is 18.  No other country in the EU criminalises such young children, with the age of criminal responsibility set at 14 in Germany, 15 in Sweden, 16 in Portugal and 18 in Luxembourg. The lower relative age gap just puts emphasis on the issue that the UK laws put disproportionate burden on younger individuals and the same continues to be an anamoly in the face of increased protests from members of EU and International Organisations.

The Optional Protocol on the Rights of the Child on the involvement of children in armed conflict prohibits the compulsory recruitment of children into armed forces of State Parties. The responsibility to enforce this prohibition is thus placed on the recruiting organisation and State but never upon the child who does not have the foresight to envision the consequences of their actions, in order to be held accountable for such a decision.

Lastly, not engaging in rehabilitation methods will never resolve the problem of understanding why or how this targets a certain group of individuals, convincing them to take drastic steps. The challenge, however, is that the onus to evaluate and take a decision that balances the risk of allowing former citizens with a history of radicalization into society with human rights of the individual concerned, ultimately vests in the State. Arguments for upholding human rights of all persons are valid but so is the State’s paranoia, even though it arises from a place of ignorance as to understanding why their citizens join terror groups, which feeds into the cycle of radicalisation.

Policy Recommendations 

The authors believe that addressing the conflict between balancing human rights interests in terms of right to not be deprived of a nationality of former recruits and the State’s concern for preventing future harm requires a serious consideration of creating reformative systems. By revoking the citizenship of a former national, the State of citizenship is effectively delegating its duties to take responsibility for the criminal behaviour onto those countries where refugee camps hold their former citizens. It reflects a callous disregard for the countries that the State of citizenship does not consider itself accountable to.

A suggested model for rehabilitation would include psychiatric and psychological evaluations to decipher State of mind and behaviour of returnees at the offset. These examinations need to be conducted periodically under close monitoring by professionals to gauge the impact of psychological intervention on former recruits. The objective is to determine their fitness for reintegration into society and time frames to gauge the same must be case-specific.

Second, the psychological evaluation of these individuals shall be an undeniable asset to secret services in understanding motivations for such behaviour in order to identify patterns and create mechanisms to specifically tackle those patterns. Third, individuals undergoing rehabilitation can be assisted by specialized counselling services to communicate with the public on the consequences of their choices, the effects of being exposed to war and conditions of dehumanization that warn them against online propaganda. Such a declaration of truth would serve in generating public awareness and countering fables of terrorist groups that portray a narrative of martyrdom in higher service to the cause.

Lastly, such a model substantiates an argument for the State of citizenship being a humanitarian one which cares deeply about its citizens, thereby countering the narrative of abandonment and apathy reinforced by terror organizations to incentivize recruits. The proposed changes are a step towards preventing further loss in the future for the State, its citizens and their families.

*Jibran Khan is a fifth year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow.

**Kriti Sharma is an alumnus of Dr. Ram Manohar Lohiya National Law University, Lucknow and is currently pursuing Dual Masters in International Affairs and Law from Sciences Po and Georgetown University Law Centre.