Should ISIS affiliates be repatriated?

When Islamic State (ISIS) announced the formation of a caliphate on 29 June 2014, it was clear that the citizenship status of those who had voluntarily joined ISIS as well as those born under its rule was uncertain and controversial. In a debate on the (moral) validity of citizenship deprivation by Canada and other Western countries due to joining a terrorist organisation, Peter Spiro noted that “there is no citizenship in the Islamic State ([ISIS] not being a state, the label notwithstanding). One cannot naturalise or be born into [ISIS]; there is no formal evidence of loyalty or membership”. This position was attacked by Christian Joppke, claiming that terrorism under ISIS was completely different from previous forms of (national) terrorism and that liberal states, by stripping terrorists of their citizenship, were therefore fully right in “taking away from them what [the terrorists] have factually renounced and even wish to destroy”. He wondered whether Spiro’s “lawyerly” argument that there could not be a “shift of loyalty” on the part of Islamic terrorists because “there is no citizenship in the Islamic State” meant that Spiro wanted to wait until ISIS had acquired a seat in the United Nations.

According to an analysis from last year, “over 700 children were born in ISIS-held territory to parents of Western nationalities, and an additional 4,640 travelled to Syria and Iraq with their parents”. These children will run into difficulties proving their citizenship as their parents may have been killed and their identification papers have been lost; only received birth papers from the Islamic State, which the Syrian and Iraqi governments do not recognize; or because their parents originate from Western countries that have refused to repatriate children born in ISIS-held territory in Iraq and Syria.

With ISIS defeated, Australia has decided to repatriate eight children of ISIS affiliates, although it is estimated that there are at least 50 other Australian children and women in camps in Northern Syria. While the Australian government considers the children innocent victims of war, we saw in a previous analysis of the Shamima Begum case that female supporters of the ISIS regime played an instrumental role in the regime’s success. It is far from evident that repatriation of “ISIS brides” in their countries of origin on the basis of “universal jurisdiction” is to be preferred over prosecuting them and their husbands in Syria or Iraq or possibly by the International Criminal Court.

The citizenship problem is much broader, however, than just the group of active ISIS participants and their offspring. The Norwegian Refugee Council, in a report from April that was picked up by several international media, describes how “an estimated 45,000 displaced children in camps are missing civil documentation and may face total exclusion from Iraqi society”. The problem is not restricted to the former caliphate, as there have been warnings in recent years about a stateless generation of Syrians growing up in exile, a risk that has been exacerbated by Islamic State’s practice of destroying passports and legal records, the gender-biased nationality laws in many Middle Eastern countries which make that nationality cannot be passed on through the mother, and the lack of effective legal safeguards against statelessness and possibilities to properly register births in their countries of refuge.

Author: Dr. Oliver Vonk