Emerging Voices: Denationalization, International Justice, and the Principle of Good Faith

[Michael W.R. Adams is a J.S.D. candidate at Columbia Law School.]

Increasingly, states across Europe and in the Commonwealth of Nations have adopted laws permitting the ‘denationalization’, or stripping of citizenship, from so-called ‘foreign fighters’ in the interests of national security.

Denationalization has antecedents going back to the states of the ancient world. States have historically employed denationalization as a response to acts of fundamental disloyalty. It is a canard of international law that nationality is a matter for the state to determine. In the modern world, however, denationalization is seen as abhorrent to the ‘rules-based international order.’ International law prohibits denationalization in some circumstances, such as when it is arbitrary or makes the denationalized person stateless.

It is proposed here that denationalization might also be unlawful when it undermines what Bassiouni described as the ‘system of international criminal law;’ the various fora tasked with exercising jurisdiction over international crimes to advance the fight against impunity. The following discussion will demonstrate why denationalization can represent a failure to act in good faith with respect to the system of international criminal law. Denationalization can undermine the state’s commitment of its nationals to the jurisdiction of a forum tasked with prosecuting international crimes, frustrating the system’s object and purpose by depriving the forum of its capacity to combat impunity.

Set aside for now is the important question of whether these arguments extend to systems of transnational crime, such as terrorism, although they may well be applicable to the extent that these systems make use of nationality-based jurisdiction. Also set aside is whether denationalization reduces the likelihood that a trial will be fair, which raises questions endemic to the system of international criminal law.

As noted above, denationalization is targeted at ‘foreign fighters’ who travelled from their states of nationality to Syria and Iraq to fight on behalf of the Islamic State (ISIS). A number of high-profile British denationalizations have captured the attention of the media, such as that of Shamima Begum as well as of Alexanda Kotey and El Shafee Elsheikh, the latter of whom were allegedly members of the infamous ISIS cell known as the ‘Beatles.’ Many foreign fighters, including the Beatles, are accused of serious international crimes and related transnational crimes such as terrorism. The Beatles were allegedly responsible for numerous killings including the brutal beheadings of US journalists Steven Sotloff and James Foley. There is some ambiguity as to when Kotey and Elsheikh were denationalized; Elsheikh was reportedly denationalized in December 2014, shortly after the killings of Sotloff and Foley were carried out.

With the collapse of ISIS, the remaining Beatles and thousands of other foreign fighters have been captured by the Syrian Democratic Forces (SDF). There has been a great deal of publicized discussion about the forum in which the Beatles should be prosecuted. The UK, having denationalized the Beatles, has disclaimed responsibility for their prosecution and has instead, controversially, sought to facilitate their prosecution in US federal courts for terrorism offences by entering into a mutual legal assistance agreement. It is also possible that the Beatles will be detained in Guantanamo Bay, or extradited to Iraq for a summary trial.

The question of whether good faith is implicated in denationalization concerns the role nationality plays in the establishment of jurisdiction over a person accused of international crimes. Under international law, nationality supplies two justifications for the exercise of extra-territorial jurisdiction, permitting a state to do so when an act is committed by or against a national. This reflects the fact that the state’s sovereign authority is understood to extend to all persons who owe it a duty of allegiance, and to whom in turn the state owes certain duties as interlocutor, protector, and, in the exercise of its duty of due diligence, supervisor.

The specific role of nationality in establishing jurisdiction changes as between different fora within the overall system of international criminal law, and so the way good faith may be implicated will also change depending upon the context in which jurisdiction is asserted. For example, under Article 12(2)(b) of the Rome Statute, the International Criminal Court (ICC) may exercise its jurisdiction if “[t]he State of which the person accused of the crime is a national” is a States Party.

Article 12(2)(b) reflects the fact that entry into the Rome Statute constituted what was described by some delegations to the Rome Conference as an initial “act of sovereignty, namely, acceptance of the statute.” It triumphed over the alternative proposals seeking to make the ICC’s jurisdiction conditional upon the express consent of both the territorial State and State of nationality. Essentially, therefore, the Rome Statute ascribes an intention to States Parties to accept in advance the possibility that jurisdiction will be exercised by the ICC over their nationals, subject, of course, to other limitations such as the principle of complementarity.

It has been suggested that a state’s alteration of its jurisdictional commitments can violate the obligation of good faith when those commitments are in fact essential to the object and purpose of the treaty. Good faith is therefore potentially implicated when denationalization laws undermine the commitment to Article 12(2)(b) by stripping citizenship from persons who have been accused, but not convicted, of international crimes or other related transnational crimes.

This is the effect of s 40(2) of the British Nationality Act 1981 (UK), which was used to deprive the Beatles of British citizenship. Section 40(2) provides that a person may be deprived of their citizenship when “the Secretary of State is satisfied that deprivation is conducive to the public good” unless to do so makes them stateless, although s 40(4A) contains a proviso permitting statelessness in the case of naturalized citizens who have acted in a way “seriously prejudicial to the vital interests of the United Kingdom.”

The ‘public good,’ in this context, “means depriving in the public interest on the grounds of involvement in terrorism, espionage, serious organized crime, war crimes or unacceptable behaviors.” If taken to its logical conclusion, therefore, s 40(2) would be used to denationalize every national over whom the UK must have intended the ICC have jurisdiction when it became a States Party to the Rome Statute; those accused but not convicted of international crimes, in a situation where the state of nationality is unwilling or unable to prosecute and where the territorial states in which the crimes occurred, Syria and Iraq, are not States Parties.

It is an open question as to whether denationalization strips the ICC of its jurisdiction over an accused, although forceful arguments have been made that what matters is whether the accused was a national at the time the offence was committed. Even if these arguments are correct, however, denationalization would create a potentially incomplete jurisdiction. The ICC would have jurisdiction over crimes committed while the accused was a national, but not over crimes committed afterwards—which would potentially include, in the case of the Beatles, the killings of Haruna Yukawa and Kenji Goto in January of 2015.

Because denationalization laws are overwhelmingly targeted at dual nationals, it is possible that denationalization would not deprive the ICC of jurisdiction where the state of second nationality is a States Party. But the state of nationality’s responsibility to maintain in good faith its commitment to the ICC’s jurisdiction should not be understood as conditional upon this possibility. To hold otherwise would be to ignore the norms of reciprocity and cooperation that characterize good faith obligations; it would be to introduce a Prisoner’s Dilemma into the duty not to defeat the object and purpose of the Rome Statute.

The denationalization of foreign fighters such as the Beatles also has implications for other fora within the system of international criminal law. The UK’s refusal to consider their extradition and prosecution cuts against the international community’s growing expectation that states of nationality must take responsibility for the prosecution of international crimes. During the UN General Assembly review of universal jurisdiction, for example, it was observed that “the State in which a crime occurred (the territorial State) and the State of nationality of the perpetrator (the State of nationality) would generally have primacy, in the fight against impunity, over persons, acts or things.” The US has repeatedly requested that states of current or former nationality take responsibility for prosecuting foreign fighters detained by the SDF.

If, as Robert Kolb has observed, good faith ultimately involves the satisfaction of legitimate expectations about state conduct (contra, perhaps, the ICJ’s decision in Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), then it may be possible to infer from the general “duty of every State to exercise its criminal jurisdiction over those responsible for international crimes” recalled in the Rome Statute an ancillary duty to maintain the conceptual attachments, such as nationality, which underpin these emerging expectations about when that duty vests in a particular state. That is a far more ambitious argument, however, and requires more space than is available here to make properly.