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ABSTRACT
In its efforts to counteract terrorist threats and contain the risks posed by returning foreign fighters, the Netherlands, like several other European states, has enacted legislation introducing denationalisation as a counter-terrorism measure. The Dutch measures target convicted terrorists and foreign fighters alike, the latter without the prior involvement of the judiciary. This practice not only challenges traditional conceptions of citizenship, but also raises several human rights concerns, of which discrimination is the most pressing. This Article therefore examines the measures taken by the Netherlands and analyses their compatibility with Articles 14 and P12-1 of the European Convention on Human Rights, to assess the measures’ disproportionate focus on Dutch-Moroccans from a legal perspective. Based on this conclusion of inequality, the Article then ventures beyond purely legal analysis to discuss the Dutch legislation more broadly, before linking the legal argument with normative critiques on the denationalisation of terrorists, and foreign fighters in particular. Taken together, the legal and normative findings establish that denationalisation as a counter-terrorism measure in the Netherlands cannot be reconciled with the legal or normative dimension of the equality principle.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1. For the purposes of this Article, dual-nationals will include individuals with more than two nationalities.
2. With the narrow exception regarding ‘conduct seriously prejudicial to the vital interests of the state’ under Article 8(3) 1961 Convention on the Reduction of Statelessness, which only allows denationalisation in force at the time of ratification, statelessness is only an acceptable consequence where fraudulently acquired nationality is revoked. However, this Article discusses denationalisation on grounds of public security.
3. Other human rights concerns include: double jeopardy and interferences with the rights to private and family life (Article 8 ECHR), to an effective remedy (Article 13 ECHR), or to fair trial (Article 6 ECHR).
4. This exception does not apply where denationalisation responds to fraudulent acquisition or a conviction by the ICC.
5. Article 205 Dutch Criminal Code (Wetboek van Strafrecht) criminalises entering into service of foreign armed forces.
6. For a discussion see GR De Groot, Towards a Toolbox for Nationality Legislation (Maastricht, Nexus Legal, 2016), 33.
7. The ECtHR has so far rendered five judgements under Article 1 Protocol 12, none of which concerned nationality.
8. This distinction is also maintained in European Union Agency for Fundamental Rights and Council of Europe, ‘Handbook on European non-discrimination law’ (2018 Edition, Publications Office of the European Union, 2018).
9. Such evidence must then be rebutted by the respondent.
10. The data relied upon does not indicate a significant number of foreign fighters with such a background.
11. A discussion of these concerns would exceed the scope of this article by far, see instead Boekestein 2017.
12. It is unclear whether this number only counts men or also includes women and children.
13. In Nachova and Others (Citation2005), the ECtHR held that there are no restrictions to the types of evidence it accepts.
14. Elke Winter and Ivana Previsic, 2019, 'The politics of un-belonging: lessons from Canada’s experiment with citizenship revocation'.
15. Since only Article 14(2) DNA is applicable.
16. Helen Irving's, 2019, 'The concept of allegiance in citizenship law and revocation: an Australian study'.
Additional information
Notes on contributors
Tom L. Boekestein
Tom L. Boekestein, LL.M. (cantab) is a PhD Candidate at the University of Cambridge. His research focusses on the impact of human rights guarantees on EU Citizenship, particularly in the context of Member State withdrawal. He has been writing contributions on Dutch nationality law for the GLOBALCIT project since 2016.
Gerard-René de Groot
Dr. Gerard-René de Groot is Professor emeritus of Comparative Law and Private International Law at Maastricht University and Professor of Private Law at the University of Aruba (West Indies). His main research focus is on nationality law. He has published more than 400 books, articles and case notes in that field.