David Hicks’ British Citizenship: Now You See It, Now You Don’t

by Peter Spiro

According this report out of Australia, in early July Guantanamo Bay detainee David Hicks was granted UK citizenship only to be stripped of the status the very next day. The British courts had confirmed Hicks’ claim to the British tie through his London-born mother. Hicks apparently hoped that British citizenship would lead to his release (as has been the case for all other Britains held at Gitmo). Alas, far from going to bat for him with the USG, after acceding to these rulings the British Home Secretary immediately revoked the status under a new measure giving him the power to strip dual nationals of their British citizenship where it “is conducive to the public good.” (Before an amendment earlier this year, citizenship could be revoked only for conduct “seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory.”)

I don’t know how sympathetic a character Hicks may be, but I’m a bit surprised the maneuver hasn’t attracted a little more attention, especially in the British press. The episode contrasts sharply to parallel developments in the US, where despite some talk no detainees or terrorism defendants have been stripped of citizenship (Yaser Hamdi presenting the starkest example of an accidental American). Hicks expatriation may also have international law implications. Under article 15 of the Universal Declaration of Human Rights, states may not arbitrarily deprive individuals of nationality. The UK was no doubt on firm ground under existing practice, which still allows states wide discretion, in light of Hicks’ alternate Australian nationality and his tenuous connection to the UK. But one could easily imagine application of the Home Secretary’s power that would present a much closer case.

http://opiniojuris.org/2006/09/05/david-hicks-british-citizenship-now-you-see-it-now-you-dont/

2 Responses

  1. The episode contrasts sharply to parallel developments in the US, where despite some talk no detainees or terrorism defendants have been stripped of citizenship (Yaser Hamdi presenting the starkest example of an accidental American).

    I don’t think it’s entirely fair to reference Yaser Esam Hamdi’s situation for the proposition that no American has been stripped of citizenship in the war on terror. After all, Hamdi — who was a U.S. citizen — was indefinitely detained by the Defense Department, without trial, and was only released after agreeing to renounce his U.S. citizenship. (NYT article here.) Although Hamdi’s case certainly differs from Hicks’, to detain a citizen without trial and offer to release him only on the condition that he renounces his citizenship doesn’t provide the sharpest contrast with Hicks’ situation.

    Also, to dismiss Hamdi as an “accidental American” ignores perhaps the most basic concept of equality among citizens that is enshrined in the Fifth and Fourteenth Amendment, and moreover in the very idea of a democracy. There aren’t “accidental” (and on the other hand “intentional”?) Americans; there are simply Americans.

    This all being said, I think you’re right to draw attention to the very real possibility that, either though the official exercise of denaturalization powers or through coerced renunciation of citizenship, states could run afoul of the prohibition on arbitary deprivation of nationality. The Inter-American Court of Human Rights discussed the scope of “arbitrary” deprivations, and state responsibilities to avoid nationality determinations that increase the number of stateless individuals, in its decision last year in the Case of the Yean and Bosico Girls v. Dominican Republic, a PDF of which is available from the Court’s website here.

  2. Christopher, Thanks for the comment. I don’t mean to downplay the gravity of the violation of Hamdi’s rights. But I don’t think the violation was appreciably magnified by Hamdi’s citizenship status. I’ll stick by the “accidental American” characterization — as a matter of social fact, Hamdi was no more an American than any other Guantanamo detainee. He didn’t even know he was an American citizen until informed of the fact. But notwithstanding the fact that he had no connection to the US, and was in custody as an alleged enemy fighter, there were no takers for the argument that he should be sgtripped of his citizenship.

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