5.06.2020
Human Rights Without Frontiers & European Center for Law and Justice

Foreign terrorists invoke human rights to stay in Europe

Is it not paradoxical that ISIS terrorists invoke “human rights” to be allowed to return in Europe, or not to be expelled from it, even though they hate the European culture and have fought against it, to the point of being guilty of war crimes and genocide? Such cases are multiplying before the European Court of Human Rights (ECHR).

The ECLJ intervened in two of them, to bring an interpretation of human rights that is not naïve while remaining firm on the principles.

On this occasion, the ECLJ has just published a new Report (in French only) on the conditions to revoke the nationality of terrorists.

In one of these cases, an ISIS veteran, from a mixed Danish-Tunisian couple, challenges the revocation of his Danish nationality and his deportation to Tunisia, of which he is a national. In the other, an Iraqi man challenges his deportation to Iraq for organizing the financing of an Iraqi terrorist organization from Germany, where he lives with his Turkish wife and their children (His wife and his children have dual German and Turkish nationality).

With these cases, the ECHR must rule on two crucial questions:

  1. Can a European state withdraw nationality and then expel a terrorist with dual nationality from Europe?
  2. Can a European State expel a foreign terrorist who has founded a dual-national family on its territory?

In its written observations (available here and there), the ECLJ recalled in particular what the link of “nationality” between a person and a nation consists in: it is not a right, nor a mere administrative formality, but the expression of a bond of belonging. The ECLJ also recalled the grounds on which it must be possible to expel a foreign terrorist.

  • Withdrawing the nationality of dual-nationality terrorists

By their actions, the ISIS terrorists voluntarily break their bond of belonging to a European people or demonstrate the non-existence of such a bond. In their case, “the revocation of nationality merely translates, in law, a factual and material reality: that of a person who is a foreigner by his whole being” (Bertrand Pauvert, interview for the ECLJ in French only).

Where jihadists have only one nationality, European States can only deprive them of it if it is reasonable to believe that they can acquire another nationality (K2 v. the United Kingdom, no. 42387/13, 7 February 2017). International and European law, on the other hand, leave a wide margin of appreciation to States to withdraw the nationality of terrorists with dual nationality, i.e., who already have another nationality.

However, the deprivation of nationality is rarely used. In France, for example, only 13 deprivations of nationality have been pronounced because of terrorist acts in twenty years (1996–2016). This political choice is dangerous. Indeed, jihadists who retain their nationality have a “right to return” to Europe and the right not to be expelled from it. On the contrary, the withdrawal of the nationality of dual nationals facilitates their expulsion as foreigners.

  • Expelling foreign terrorists

Like any foreigner, a jihadist does not have a right to live in a country of which he or she is not, or no longer, a national.

In its observations to the European Court, the ECLJ has clarified that the possibility for a State to expel foreign terrorists pursues several legitimate objectives provided for in the Convention: to protect national security, to prevent new criminal offenses of the same kind, or to defend the rights of potential victims. Moreover, States have a duty to protect the population against terrorist threats, thus preserving common goods such as public order, national harmony, and the civil and civic spirit.

  • The ECLJ's recommendations

In addition to individual cases, the ECLJ has made proposals to the Court to settle disputes on the expulsion of criminal aliens.

Admittedly, the current case-law shows that the ECHR is concerned with the individual situation of foreigners and their families and the danger they pose to security. The ability of an alien threatened with expulsion to integrate is thus assessed. However, the ability of society to integrate this foreigner is totally omitted. Yet, between a foreigner and a society, the will to integrate must be mutual, like a bilateral contract.

After assessing the willingness of a foreigner threatened with expulsion to honor this contract, it is crucial to assess the willingness of society as well. This is why the ECLJ suggested to the Court to supplement its usual approach in order to integrate the rights of society.

Other resources: Does France have any other choice than to judge its own jihadists? See https://bit.ly/36GOz8p
Expulsion of Islamist terrorists? See https://bit.ly/2TOcAW0

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