[Op-ed] Christophe Paulussen: “Nationality deprivation in the interest of national security: on symbolism, irrationality and the 'evaluation' of a flawed law”Published 15 December 2021
In an opinion piece for Dutch quality paper de Volkskrant, Asser senior researcher Christophe Paulussen reflects on a legislative proposal by the Dutch State Secretary for Justice and Security Ankie Broekers-Knol, to make permanent the temporary powers of the Minister of Justice and Security to withdraw Dutch citizenship in the interest of national security.
“The whole legislative process surrounding this power is typical of the symbolism and irrationality that prevail in the terrorism context in general”, writes Paulussen. “Although it is often said that policy should be 'evidence-based', the reality is different: figures and analyses of researchers and experts who have been working on this issue for years are ignored, and evaluating the effectiveness of the measure is reduced to a non-substantive 'tick the box exercise'.”
On Wednesday 15 December, the Dutch Parliament will have a debate about the proposal. Paulussen, an expert on citizenship stripping in counterterrorism, calls for the withdrawal of the proposal. Members of Parliament should “stand for human rights, justice for the victims and security for us all.”
On 6 October 2011, a legislative proposal was submitted by State Secretary for Justice and Security Broekers-Knol to ensure that the temporary powers of the Minister of Justice and Security to revoke Dutch citizenship in the interest of national security is made permanent. The proposal to introduce the temporary law was already heavily criticised by various experts and institutions at the time, so it was not surprising that the proposal to make the law permanent was met with similar resistance. The Advisory Division of the Council of State noted in its advice of 11 August that the Minister does not provide sufficient compelling arguments for a permanent regulation, partly because there are questions about the functioning and (side) effects of the measure. Various civil society organisations and experts in the Netherlands have already expressed their criticisms. They join their colleagues abroad - from hardened terrorist hunters like Brett H. McGurk, the former 'Special Presidential Envoy to the Global Coalition to Defeat ISIS' (not someone you would easily label as 'soft on terrorism') to academics, human rights experts and international organisations – all of whom have problems with this measure. This is partly because it is discriminatory, it does not make us safer (because it could lead to potentially dangerous people disappearing off the radar) and it leads to impunity because suspected terrorists are not brought to justice.
A remarkable aspect in this context that deserves more attention is the 'evaluation' of this flawed law, which now threatens to be made permanent. There have been two evaluations of (the actions of the General Intelligence and Security Service (AIVD) under) the law, one by the Research and Documentation Centre (WODC) and one by the Review Committee on the Intelligence and Security Services (CITVD). Strangely enough, the WODC evaluation is used as a justification to make the law permanent. This is despite the fact that among other things, the WODC evaluation itself states that it cannot answer the question of whether the measure "has reduced the threat of terrorist activities on Dutch soil by Dutch members of jihadist organisations, thereby increasing national security". The WODC evaluation does state, however, that "in a large majority of cases, the Public Prosecution Service believes that deprivation leads to a possible encroachment on the investigation and prosecution of criminal offences". In the CTIVD evaluation, one can also read that according to the AIVD the direct effect of the measure on national security in the broad sense is "limited", because it does not remove the (potential) threat emanating from an individual. It was also pointed out that such individuals could secretly travel back to the Netherlands. Meanwhile, the measure has not been able to prevent the return of Fatima H. and Hicham R., whose nationality was also taken away, which raises serious questions about the effectiveness of this power.
The bill also has procedural flaws: the Institute on Statelessness and Inclusion rightly observed that the Yesilgöz Zegerius and Van Toorenburg motion, in which the government was requested to submit a proposal to make the regulation permanent, had already been adopted by the House of Representatives on 12 November 2020, one month before the WODC evaluation had been sent to the Senate and the House of Representatives. This raises the question of why an evaluation is being carried out at all, if the results of the evaluation are not awaited.
The whole legislative process surrounding this measure is typical of the symbolism and irrationality that prevail in the terrorism context in general. Although it is often said that policy should be 'evidence-based', the reality is different: figures and analyses from researchers and experts who have been working on the issue for years are ignored and evaluating the effectiveness of the measure is reduced to a non-substantive 'tick the box exercise'.
The ball is now back in the court of the House of Representatives, where the debate will take place on Wednesday evening. If our representatives stand for human rights, justice for the victims and security for us all, then this law must not be made permanent but be set aside altogether.
About Christophe Paulussen
Dr Christophe Paulussen LL.M. M.Phil. is a senior researcher at the T.M.C. Asser Instituut and coordinator of its research strand 'human dignity and human security in international and European law', coordinator of the inter-faculty research platform ‘International Humanitarian and Criminal Law Platform’ and research fellow at the International Centre for Counter-Terrorism – The Hague.
Research strand 'human dignity and human security in international and European law’
This Research Strand adopts as its normative framework a human rights approach to contemporary global challenges, inter alia in the fields of counter-terrorism, especially with regard to the topic of foreign (terrorist) fighters, international and transnational crimes, new technologies and artificial intelligence, and historical memory. Research examines what it means to safeguard human dignity - also in relation to human security - in these areas.
Towards a Right to Sustainable Security of Person in Times of Terrorism? Assessing Possibilities and Limitations Through a Critical Evaluation of Citizenship Stripping and Non-Repatriation Policies (Journal of Conflict and Security Law)
On the basis of the case studies of deprivation of nationality and the non-repatriation and possible prosecution of foreign fighters and their families, this article will argue that some counter-terrorism measures, adopted under the justification of protecting national security, will not make these countries, and thus also the individuals under its jurisdiction, safer. The article also asserts that while the general concept of sustainable security can certainly help at the policy level in encouraging governments to move away from mere national security thinking, the situation is different at the level of human rights. The existing right to security of person arguably does not go that far to be able to block the inefficient counter-terrorism measures as discussed in this article and an extension of this right, to a right to sustainable security of person, should not be pursued.
Stripping foreign fighters of their citizenship: International human rights and humanitarian law considerations (International Review of the Red Cross)
This contribution concludes that citizenship stripping is not only highly problematic under international human rights law, but also from the perspective of international humanitarian law. The measure – which is likely to constitute cruel, inhuman or degrading treatment or punishment – violates Article 3 Common to the four Geneva Conventions, but it also undermines accountability for international humanitarian law violations already committed and can engender new violations through the non-removal of the suspect from the conflict zone.