A Foucauldian perspective on the denationalisation of terrorists: sovereign means, biopolitical ends?

ABSTRACT

This article evaluates the extent to which Michel Foucault’s concepts of sovereignty and biopolitics satisfactorily explain the UK’s law and practice of denationalising terrorists. It argues that the ancient Foucauldian sovereignty has re-emerged in terms of the process of the expansion and exercise of the Home Secretary’s denationalisation powers, with the Home Secretary accorded broad discretion to decide whether to use this exceptional measure and, importantly, whether to normalise the exceptional. Yet Foucauldian sovereignty cannot be said to have re-emerged in terms of the outcome faced by the denationalised terrorist who is largely not sent to political death or rendered bare life. Denationalisation is justified to the citizens as a necessary security measure for the protection of society as a whole. The terrorist is effectively characterised as an enemy and threat to security because security is increasingly informed by what executive officials deem to be the society’s values, and participation in terrorist activity conflicts with those values. As such, while it is contentious whether denationalisation constitutes Foucauldian sovereignty, the ends of denationalisation are biopolitical.

KEYWORDS:

• Denationalisation
• sovereignty
• biopolitics
• terrorism
• Foucault
• Arendt
• Agamben

Acknowledgments

The author would like to thank Damian Chalmers for extensive feedback on many earlier drafts and the anonymous referees for useful comments. All views expressed – and errors made – in this article are entirely the author’s own.

Disclosure statement

There was no potential conflict of interest in carrying out this research.

Notes

1. As noted by Krähenmann (2020), this is more common than states including involvement in terrorist activity as a bar to acquisition of nationality. See, for example, Organic Law 8/2015 amending the Portuguese Nationality Act on 22 June 2015

2. Human Rights Watch, ‘Bahrain: Citizenship Rights Stripped Away.’ https://www.hrw.org/news/2014/08/21/bahrain-citizenship-rights-stripped-away; BBC News, ‘Aatish Taseer Says “Sinister Plan” Saw Him Stripped of Indian Citizenship.’ https://www.bbc.com/news/world-asia-india-50342314

3. By 2017, over 150 ‘jihadists and criminals’ had been denationalised. The Guardian, ‘UK ‘has stripped 150 jihadists and criminals of citizenship.’ https://www.theguardian.com/uk-news/2017/jul/30/uk-has-stripped-150-jihadists-and-criminals-of-citizenship. Between 2018 and 2019, the number of denationalisations increased by 600%, though the Home Office did not state how many of these were ISIS-related. The Independent, ‘Shamima Begum: Number of People Stripped of UK Citizenship Soars by 600% in a Year.’ https://www.independent.co.uk/news/uk/home-news/shamima-begum-uk-citizenship-stripped-home-office-sajid-javid-a8788301.html

4. Sections 40(3)(a)-(b), British Nationality Act (BNA) 1981 prior to 1 April 2003.

5. Section 40(5), BNA 1981.

6. Section 40(2)(a), BNA 1981 between 1 April 2003 and 16 June 2006.

7. Section 40(2), BNA 1981.

8. Section 40(4), BNA 1981

9. Section 40(4A), BNA 1981.

10. As confirmed by the UK Supreme Court in R (Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5, [43]: ‘Parliamentary sovereignty is a fundamental principle of the UK constitution.’

11. Miller, [42], [45].

12. (1951) 2 KB 844, at 853–854.

13. Aziz and Others v. Secretary of State for the Home Department [2018] EWCA Civ 1884.

14. The Spectator, ‘Full Text: Sajid Javid’s Conservative Conference Speech.’ https://blogs.spectator.co.uk/2018/10/full-text-sajid-javids-conservative-conference-speech/

15. Section 40(2), BNA 1981.

16. Section 40(5), BNA 1981.

17. [2017] UKUT 00118, [56].

18. [2018] EWCA Civ 2064, [52].

19. UN Security Council Counter-Terrorism Committee, ‘Implementation of Security Council Resolution 2178 (2014) by States Affected by Foreign Terrorist Fighters’ UN Doc. S/2015/338, [52].

20. This stands in contrast to the now-repealed Strengthening Canadian Citizenship Act which required the Minister of Citizenship and Immigration to obtain a judicial declaration that the individual had engaged in the particular conduct warranting denationalisation. Section 8, Strengthening Canadian Citizenship Act 2014. The Act was repealed in 2017 when the Trudeau government came into power.

21. [2006] EWCA Civ 400.

22. The Guardian, ‘Reid Revoked Citizenship of Guantanamo Detainee.’ https://www.theguardian.com/uk/2007/jan/11/world.politics

23. [2014] AC 253, [23], [25], [32].

24. Section 40(4), BNA 1981

25. Section 40(4A), BNA 1981.

26. HC Deb 30 January 2014, vol 574, cols 1047, 1041.

27. HRC General Comment 15, [1]

28. ESCR Committee General Comment 20, [30]

29. Institute for Statelessness and Inclusion, Principles on Deprivation of Nationality as a National Security Measure, Foreword.

30. Al-Jedda, [12].

31. HRC General Comment 36, [2]

32. Bureau of Investigative Journalism, ‘British Terror Suspects Quietly Stripped of Citizenship … Then Killed By Drones.’ https://www.independent.co.uk/news/uk/crime/british-terror-suspects-quietly-stripped-of-citizenship-then-killed-by-drones-8513858.html

33. [2019] EWHC 2169 (Admin), [15].

34. Article 6(2), ICCPR; Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, UN ECOSOC Res 1984/50.

35. UN Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on her Mission to Iraq, UN Doc. A/HRC/38/44/Add.1, [66]-[67].

36. Article 8(1), 1961 Convention on the Reduction of Statelessness, subject to exceptions in Article 8(3).

37. Section 40(4), BNA 1981

38. Section 40(4A), BNA 1981

39. [2015] 1 WLR 1591, [3], [38], [66].

40. [2020] SIAC Appeal No. SC/163/2019 (Begum), [121], [123], [128].

41. Section 40A(1), BNA 1981

42. Section 40(6), BNA 1981

43. Section 40(2), BNA 1981; Section 2B, Special Immigration Appeals Commission Act 1997.

44. Section 37(1), Special Immigration and Appeals Commission (Procedure) Rules 2003.

45. Article 8(4), 1961 Convention.

46. Under Section 8(b)(ii), Special Immigration and Appeals Commission (Procedure) Rules 2003, the deadline is 28 days from receipt of the denationalisation order.

47. [2010] SIAC Appeal No. SC/100/2010, [12].

48. Begum, [140], [143].

49. Shamima Begum v Special Immigration Appeals Commission and Secretary of State for the Home Department [2020] EWCA Civ 918, [120]-[121]

50. Sky News, ‘Shamima Begum: 78% Of Britons Support Revoking IS Bride’s UK Citizenship.’ https://news.sky.com/story/shamima-begum-78-of-britons-support-revoking-is-brides-uk-citizenship-sky-data-poll-11643068

51. Sections 40(3)(a)-(b), British Nationality Act (BNA) 1981 prior to 1 April 2003.

52. Section 40(2)(a), BNA 1981 between 1 April 2003 and 16 June 2006.

53. Section 40(2), BNA 1981 currently.

54. ‘Threat Level from International Terrorism Raised: PM Press Statement.’ https://www.gov.uk/government/speeches/threat-level-from-international-terrorism-raised-pm-press-conference.

55. Immediately after the November 2015 terrorist attacks in Paris, France’s then President François Hollande stated that the attacks were ‘an act of aggression against our country, against its values … and against its way of life’. ‘Speech by the President of the Republic before a joint session of Parliament.’ https://www.diplomatie.gouv.fr/en/french-foreign-policy/security-disarmament-and-non-proliferation/news/news-about-defence-and-security/article/speech-by-the-president-of-the-republic-before-a-joint-session-of-parliament

56. ‘Counter-Extremism Policy: An Overview’, House of Commons Briefing Paper No 7238.

57. Home Office, Immigration Bill, European Convention on Human Rights, Supplementary Memorandum by the Home Office, January 2014

58. Home Office, Counter-Extremism Strategy (Cm 9148, 2015).

59. For example, the Allegiance to Australia Act provides that ‘citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia’. Australian Citizenship Amendment (Allegiance to Australia) Act 2015, sch. 1 s.4

60. The Telegraph, ‘David Cameron: Returning Jihadists are “Enemies of the State”.’ https://www.telegraph.co.uk/news/politics/david-cameron/11237012/David-Cameron-Returning-jihadists-are-enemies-of-the-state.html