The children (and wives) of foreign ISIS fighters
79
13(2) of the Universal Declaration of Human Rights (UDHR), ‘everyone
has the right to leave any country, including his own, and to return to his
country’,45 Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR) further provides that ‘no one shall be arbitrarily
deprived of the right to enter his own country’.46 The Human Rights
Committee (HRC) in its General Comment No. 27 clarified that the reference to the concept of arbitrariness in this context is intended to emphasize that it applies to all State’s actions and that there are few, if any,
circumstances in which restrictions of the right to enter one’s own country could be reasonable.47 The HRC also explained that States parties
must not, by stripping a person of nationality, arbitrarily prevent this person from returning to his or her own country and that they cannot prevent a person from coming to the country of nationality ‘for the first time
if he or she was born abroad’.48 Notably, most States’ nationality laws
feature a set of rules – alongside those which elaborate the conditions for
acquisition of nationality − which stipulate the grounds upon which a
national can lose or be deprived of that nationality. The surge in FTFs
mobilizing around the world, and nowadays seeking to return to their
countries of origin, has ignited the debate and triggered new questions
on denationalization as legitimate policy instruments. As explained by
van Waas in her analysis of the extent to which the emerging State practice is conflicting with international human rights standards,49 revoking
nationality as a measure to prevent the return of FTFs is a violation of
international law, often combined with the breach of the duty to avoid
statelessness50 and the principle of non-discrimination.51 Deprivation of
45
UDHR (adopted 10 December 1948) UNGA Res 217 A(III).
ICCPR (adopted 16 December 1966, entered into force 23 March 1976) 999
UNTS 171 (emphasis added).
47
HRC ‘General Comment No 27: Article 12 (Freedom of Movement)’, UN Doc
CCPR/C/21/Rev.1/Add.9 (2 November 1999) paras 11-18.
48
ibid para 19.
49
L van Waas, ‘Foreign Fighters and the Deprivation of Nationality: National
Practices and International Law Implications’, in de Guttry, Capone, Paulussen (eds) (n
9) 469, 476-480.
50
‘Under the 1961 UN Convention on the Reduction of Statelessness, deprivation of
nationality may only lead to Statelessness in very specific cases which are provided for
explicitly by this instrument—and which must be embedded in domestic law in order to
be invoked’. ibid 481.
51
S Mantu, ‘“Terrorist” Citizens and the Human Right to Nationality’ (2018) 26 J
Contemporary European Studies 31-33.
46