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Omar Khoury

Abstract

Especially since the collapse of the Islamic State Caliphate in 2019, a fierce debate has arisen in international legal policy and within domestic governments about what to do with citizens who have committed acts of terror abroad. While repatriation and extradition are possible solutions, many States have refused to repatriate some citizens back and have revoked their nationalities such that those individuals are unable to return to their citizenship-country to face prosecution and/or punishment. Citizenship-stripping, however, may not always be legal. But if a State contends instead that it must deprive the citizen of nationality because, in being repatriated back to the home-State to face prosecution, the citizen will be at risk of violations of due process, torture, or the death penalty, can the international duty of non-refoulement be used to validly deny the individual his right to nationality?

Perhaps, but there will be a striking clash between a State’s duty of non-refoulement through proactive citizenship-stripping and its duty to respect a citizen’s right to nationality, to ensure an individual’s safety within a foreign State, and to guard against the imposition of statelessness. The ultimate tension between these elements reflects the reality that fulfilling some international legal obligations may come at the expense of others. Proactive citizenship-stripping may prevent refoulement, subsequently sparing the life and dignity of the FTF, but it may also deny the FTF various other entitlements, including the rights to nationality and repatriation and the freedom from statelessness.

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