Plan to strip citizenship is simplistic and dangerous.

BY BEN SAUL.

The Abbott Government’s plan to strip dual-nationality terrorists of their Australian citizenship is certain to make the world more dangerous and is grossly irresponsible.

It is contrary to Australia’s international legal obligations to counter terrorism globally. It also divisively creates different classes of citizens, may fail to provide due process, and gives the executive too much power with too little restraint.

Under the proposal, Australia washes its hands of responsibility for Australian terrorists. For those already overseas in Syria and Iraq, it leaves them free to kill and maim and up-skill their “death cult” against innocent civilians in other countries. It is a parochial and self-centred “not in my backyard” policy, where Australia dumps the burden of suppressing its own terrorists onto other countries.

A responsible government would not foist its terrorists onto other countries, but bring them home to face justice. This is not only the responsible thing to do from a national security perspective, but is also required of Australia by international law.

Under United Nations Security Council resolutions since 2001, every country has legal obligations to prevent, investigate, apprehend, prosecute and punish terrorists. These obligations are designed to ensure a coordinated global approach to countering terrorism and to prevent impunity for terrorists. Australia has long supported these resolutions, and has often claimed that they justify Australia’s counterterrorism laws.

Al Qaeda was able to mount the devastating 9/11 attacks on the United States precisely because it had found safe haven in Afghanistan and earlier in Sudan. The Security Council resolutions aim to ensure the global suppression of terrorism and to prevent terrorists taking advantage of loopholes and gaps in national law enforcement.

Stripping citizenship undermines all of this. It casts Australians adrift to keep killing overseas. Many of the dual nationals involved with Islamic State are citizens of Middle Eastern countries where law enforcement is less effective than in Australia and thus less likely to bring terrorists to justice.

If Australia doesn’t want its citizens if they are terrorists, it sends a powerful signal to other countries that they should not re-admit their dual nationals either. Australians could thus be left stateless in practice, even if they technically have another citizenship. The Australian plan does not make stripping citizenship conditional on a guarantee that the other country of nationality will, in practice, admit their national – or undertake to investigate, arrest, or prosecute them on their return. A dual national also may not possess a passport from their other country, or be able to obtain one in practice, particularly if they are in dysfunctional areas of Syria or Iraq.

Australia’s plan could also trigger a legal arms race between countries keen to formally denationalise their terrorists before we do.

The very wide definition of terrorism in Australian law also raises serious problems. Who will be stripped of citizenship – only those who kill civilians (undeniably terrorists), or also doctors and nurses who provide medical care to wounded civilians or fighters no longer in combat, who could also be “terrorists” under Australian law? Providing medical care in war is, in fact, both legal and desirable under the Geneva conventions, which aim to reduce suffering in war. Even wounded Nazi soldiers, after all, are entitled to medical care. This is what being human requires. And what about those who donate money to terrorist groups – is financing terrorism enough to justify stripping citizenship?

For terrorists still in Australia, stripping citizenship will result in indefinite immigration detention where a person’s other country either refuses to accept them (because we say they are terrorists) or is not safe for them. Quite a few Middle Eastern countries, for instance, are well known for torturing terrorists, or giving them an unfair trial or the death penalty. Australian and international law prohibits returning people to such harms.

Indefinite immigration detention then results. In numerous legal cases, the United Nations Human Rights Committee has declared that Australia’s system of indefinite detention without due process or judicial protection is contrary to international law.

Depending on the details, there is a risk that the Australian plan will deny a fair process. What will be the standard of proof for stripping citizenship? Will a person get to see enough of the security evidence against them, and to effectively challenge it, to get a fair hearing? Will the Minister for Immigration’s decision be meaningfully reviewable by the courts? Why should the Minister make the decision at all, instead of the independent courts? The UN recently found that Australia’s existing security assessment procedures do not comply with international human rights law.

Australia’s plan also divisively creates different classes of citizens. Those with only Australian nationality get to keep it even if they are terrorists, while dual nationals live precariously in the knowledge that they may lose it for bad behaviour. This is not good for social solidarity, integration and cohesion. And why stop at stripping terrorists of nationality? Why not banish paedophiles, rapists and murderers – many of whom cause more harm than the so-named “terrorists” under Australia’s sweeping definition of terrorism, which does not require a person to actually harm anyone?

The Government has also flagged the possibility of stripping citizenship from Australians even when they do not possess another nationality. This would manifestly violate Australia’s obligation under the Statelessness Convention to not deprive a person of their Australian nationality where it would render them stateless.

Making a person stateless is prohibited by international law because it leaves a person with nowhere to go, and without the protection of any government. A person becomes an outcast, an exile, without rights or identity, adrift with no place in the world.

Australia cannot unilaterally alter its obligations under that treaty, such as by lodging a “reservation” purporting to qualify its acceptance of the treaty’s terms. The treaty expressly prohibits countries from making “reservations” to its prohibition on making a person stateless. Reservations in any case can only be made upon becoming a party to the treaty – which Australia did in 1973.

The Statelessness Convention does permit countries to declare that national security laws that allow citizenship to be cancelled may continue to apply. However, such declarations can only be made at the time of becoming a party to the treaty – 1973 in Australia’s case – and must be based on laws existing at the time, not new laws.

Australia’s plan to strip citizenship is simplistic and dangerous. It is akin to the ancient and medieval practices of exile or banishment – shifting our miscreants onto others, rather than maturely neutralising the threat and putting terrorists in prison.

Terrorists are, in the end, still Australians. The citizenry is above government, not vice versa. Once citizenship is granted, the die is cast. All citizens are equal and must be accepted for all time, warts and all. We have to take responsibility for our fellow Australians, not turn a blind eye to their efforts to kill people in other countries.

Ben Saul is Professor of International Law at The University of Sydney and was counsel in the largest successful United Nations human rights cases against Australia, involving the indefinite security detention of 54 refugees.

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This article was originally published by ABC News. 

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