Deprivation of Citizenship for Terrorism: First Application in Switzerland

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–Rekha Oleschak-Pillai, Institute of Federalism, University of Fribourg

In a quietly worded press release on 11 September 2019, the Swiss Federal Office for Migration (SEM) announced that it had revoked the Swiss citizenship of a dual citizen for the first time.[1] Revocation of citizenship of a second person is currently underway[2]. Switzerland has thus joined a group of nations that now use citizenship deprivation as a counter-terrorism tool.

Citizenship deprivation is based on Article 42 of the Citizenship Law, which allows the SEM to revoke the Swiss citizenship of a dual national if the person’s conduct is “seriously detrimental to the interests or the reputation of Switzerland”. What constitutes such conduct is outlined in Article 30 of the accompanying Ordinance on Swiss Citizenship, which includes inter alia, conviction for crimes listed including those related to terrorism, crimes against humanity, war crimes and organised crime. The revocation of citizenship requires a criminal conviction except in cases where the crimes were carried out in the territory of a state, which is unable or unwilling to prosecute.

In the first case, the person had been previously convicted by the Federal Criminal Court for propaganda and recruitment to the Al-Nusra Front. The second case of citizenship deprivation concerns a woman holding three nationalities, Swiss, French and Tunisian. Here there appears to be no criminal conviction (yet). She is reputed to be in custody of Kurdish forces in Syria, which would be considered territory of a state, which is unable or unwilling to prosecute, thus doing away with the requirement of criminal conviction. She is with her three children, it is unclear what the status of the children is, will be and if they ever will be repatriated to Switzerland.

Why is this problematic?

Citizenship deprivation of this kind is problematic for several reasons. First of all, such deprivation regimes create a differentiation among citizens, those who are dual nationals and those who are not. While citizenship deprivation as a measure is not inconsistent with the general prohibition on deprivation of nationality as set out in the 1961 Convention on the Reduction of Statelessness,[3] the question that arises is whether such differential treatment can be justified under the equality and non-discrimination provisions of the constitution as well as the European Convention on Human Rights.  Further, this also needs to be considered in light of the prevailing atmosphere of political campaigns aimed against foreigners and people of foreign origin. The constitutional amendment adopted through the popular initiative “Expulsion Initiative” and associated legal framework has already created two classes of the population, those who can be expelled (non-citizens) and whose who cannot (citizens). And now we have two classes of citizens, those whose citizenship can be revoked (dual nationals) and ultimately expelled and those whose citizenship cannot be revoked.

The second problematic aspect is procedural. In the second case mentioned above, the SEM published the notification to revoke citizenship in the public gazette. Since the person was not present in the country, the notification occurred in absentia. There is a right to appeal, however, factually this would certainly not be used by person who is not present in the territory.

Another issue that needs to be raised is the prohibition on States under international law to prevent arbitrary deprivation of nationality. Any deprivation of nationality must meet certain conditions in order to comply with the prohibition on arbitrary deprivation of nationality. These conditions include serving a legitimate purpose, being the least intrusive instrument to achieve the desired result and being proportional to the interest to be protected. It is unclear if the undertaken measure would withstand the test, in particular, whether deprivation of nationality is the least intrusive instrument to achieve the desired result.

As Guy-Goodwin Gillhas pointed out, citizenship is not a privilege. Referring the Nottebohm case[4], he points out that “(F)rom the perspective of international law, an effective nationality flows from the facts of a social, lived attachment”. [5] The social circumstances, attachments, language all play in role in determining effective nationality. Having dual nationality does not necessarily mean that the person’s effective nationality is the one that he or she gets to retain.

Last but not least, such action is inconducive to global cooperation in fighting terrorism. The “not in my backyard” mentality can have severe consequences. If citizenship deprivation takes place when the person happens to be outside the country, this legally prevents the person from re-entering the territory. So, if several states start taking this approach, one could have a situation where no country takes responsibility for the “unwanted” among their citizens. Furthermore, this would result in a tug of war situation between countries trying to get rid of “unwanted persons”. This was exemplified by the recent announcement by the Turkish government that Turkey was going to send back captured Daesh members to their countries, notwithstanding citizenship deprivation.[6]

In the long run, dealing with unwanted citizens by depriving them of citizenship instead of dealing with them under existing criminal law provisions does not seem to be the solution towards fighting terrorism.

Suggested Citation: Rekha Oleschak-Pillai, Deprivation of Citizenship for Terrorism: First Application in Switzerland, Int’l J. Const. L. Blog, Nov. 29, 2019, at: http://www.iconnectblog.com/2019/11/deprivation-of-citizenship-for-terrorism:-first-application-in-switzerland

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[1] https://www.sem.admin.ch/sem/de/home/aktuell/news/2019/2019-09-110.html

[2] https://www.swissinfo.ch/eng/citizenship_another-jihadist-suspect-set-to-lose-swiss-passport-/45318782

[3] https://www.unhcr.org/ibelong/wp-content/uploads/1961-Convention-on-the-reduction-of-Statelessness_ENG.pdf

[4] https://www.icj-cij.org/files/case-related/18/018-19550406-JUD-01-00-EN.pdf

[5] https://www.ejiltalk.org/statelessness-is-back-not-that-it-ever-went-away

[6] https://www.swissinfo.ch/eng/turkey-says-it-will-send-back-islamic-state-prisoners-even-if-citizenships-revoked/45344762