Germany to target dual nationals to address ISIS threat

EU faces legal dilemma as terror group’s recruits plea for return

A child walks carrying covers on his back past members of the Kurdish-led Syrian Democratic Forces (SDF) after leaving the Islamic State (IS) group's last holdout of Baghouz. AFP

Germany’s government has become the latest in Europe to exploit a provision in a 1961 UN convention to strip its ISIS suspects of their citizenship where rights to a second nationality are established.

European countries are increasingly toughening administrative measures to prevent the return of an estimated 800 ISIS-affiliated nationals currently detained in Syria, amid concerns that these legal initiatives may be making and bending international rules.

Following a dispute between conservative Interior Minister Horst Seehofer and SPD Justice Minister Katarina Barley, a compromise measure allows for German citizenship to be revoked if the individual is an adult who is in possess of a second citizenship and has taken up arms with the Islamic State but only after the new rules go into effect.

The measure expands the current legislation to include affiliation to terrorist groups abroad as grounds for the withdrawal of citizenship, but cannot be retroactively applied to those German nationals who fled to Syria and Iraq. It is estimated that around one third of the 1,000 German fighters who travelled to the Middle East since 2013 may now be holed up in ISIS last stronghold in Baghouz or held in refugee camps in northern Syria.

In a statement on Sunday, the German interior ministry said it would only take back fighters if the suspects have consular access. As the German government cannot guarantee legal and consular services for jailed German citizens in the Middle East, it is unlikely this concession will lead to any repatriations.

Until now, German law did not allow for the deprivation of citizenship of German “foreign fighters”. But recent discussions on the fate of ISIS fighters and their families have prompted states to strengthen their legal armour.

Britain stripped Shamima Begum, a 19-year-old mother who left the country at the age of 15, of her citizenship. The decision was pushed forward on the grounds that she would be entitled to claim citizenship in Bangladesh, where her parents are originally from, but the South Asian state had said it would reject her application.

Ms Begum’s family has appealed the decision on the basis it violates under the 1961 UN Convention on the Reduction of Statelessness.

The legal basis upon which citizenship can be withdrawn varies significantly across Europe. While in Belgium, Denmark, and France criminal conviction is an essential prerequisite, the Netherlands and the United Kingdom do not impose such preconditions.

Legally, the Belgian, Danish, and French authorities would first have to conduct a criminal investigation and successfully prosecute the suspect in absentia if they wish to prevent them from returning. Practically, however, their evacuation from Syria would necessarily require the respective government’s cooperation.

So far, governments’ willingness to cooperate has been confined to the children of ISIS fighters. Belgium is currently establishing a legal basis that would enable it to bring back children below 10 years of age but not their mothers.

On Thursday last week, a Belgian court overturned an initial ruling that has made the repatriation of six children from Syria conditional to the repatriation of their two ISIS-affiliated Belgian mothers.

The justice ministry has since vowed to bring back all children under 10 years old, and deal with older children on a case-by-case basis, while leaving the mothers behind.

“The Belgian government will continue to work … to bring children under the age of 10 back to Belgium. Children must not be punished for the deeds of their parents,” Justice minister Koen Geens said.

Benoit Van Keirsbilck, director of the Belgian NGO Défense des Enfants, told The National that civil society and the Children's Ombudsman are firmly opposed to this decision.

“The State has to do everything possible to ensure the repatriation of all Belgian children and their families that are in conflict zones,” he said, citing a joint statement.

The decision to “discriminate on the base of age” is also disputed.

While a few hundred EU nationals may still be scattered across Syria, the vast majority of Europe's returnees has already found a way back. One first wave took place between 2013 and 2014 – prior to the June 2014 declaration of a 'caliphate' by ISIS militants – while a second one kicked off in early 2015.

Belgian authorities estimated 125 Belgian citizens returned between 2013 and 2015, out of the 498 it had identified. Approximately 300 of Germany's estimated 960 foreign fighters were thought to have returned by January 2018.

In Britain, returns are estimated at 425, around half of those who had left the country. Returnees who cannot be prosecuted will be subject to de-radicalisation programs. These programs are expected to double in size due to returns from Syria and Iraq.