Punishment or Banishment?

A rather curious article that lumps some of the Canadian worries regarding returning ISIS fighters (including wives)  with citizenship revocation.

The Liberal government reversed the Conservative government’s change to the Citizenship Act that allowed for revocation in cases of terror or treason

The statelessness provisions in most other countries require having a second nationality in order for citizenship to be revoked which makes the process more difficult to implement (as UK is finding out with respect to Begum not having Bangladeshi citizenship  and Australia with Prakash not having Fijian citizenship).

In the Canadian case, the issue is whether or not Canada should provide normal consular services (e.g., as we do to Canadians on death row in the USA) or make efforts to facilitate their return to Canada.

The former may be difficult given where they are being held and the latter, as many have noted, raises the possibility that there may not be enough evidence to prosecute successfully in Canada.

And while all have justified sympathy for their children, no sympathy for the mothers who made a conscious decision to support ISIS and its horrors and thus have to live with the consequences.

While the mothers have the right to return to Canada, no need for special government efforts to facilitate their return:

So-called jihadi brides are in the news, accused of supporting terrorism by having travelled to ISIS territory to marry ISIS fighters in support of the caliphate. Three Western states are implicated: the UK, the US, and Canada.

UK citizen Shemima Begum left the UK four years ago, when she was 15 years old, and surfaced last month at a Syrian refugee camp, heavily pregnant. US citizen Hoda Muthana, then a college student, left the US four years ago, using her tuition money to buy a ticket to Turkey, from which she was smuggled into ISIS territory. She is now detained in refugee camp in northeastern Syria. Kimberly Gwen Polman, born in Hamilton, Ontario, is a dual Canadian–US national who converted to Islam. She became persuaded by a Syrian fighter online that her incipient nursing skills would be of great value to the caliphate. She left the US in 2015 to join the caliphate, only to attempt to escape nearly a year later. But then she was jailed (and raped) and forced to sign a document acknowledging that if she were to attempt escape again, her punishment would be death. All three women have publicly announced their desire to return home this week.

The UK government reacted swiftly, announcing its intention to remove the citizenship of Begum, thereby denying her the right to return home. Recent official statements suggest UK authorities believe she is entitled to Bangladeshi citizenship, so revoking her British citizenship will not result in statelessness. US President Donald Trump announced over the weekend that all states should be ready to repatriate (i.e., bring home) and punish their “own” foreign fighters, but then tweeted that he had directed Mike Pompeo “not to allow Hoda Muthana back into the Country!” Canadian officials have been relatively quiet on their intentions. A spokesperson for Public Safety Canada statedonly that “The government is aware of some Canadian citizens currently detained in Syria. There is no legal obligation to facilitate their return.”

These cases are not identical. Begum was a child when she left the UK and is now a mother to a newborn baby boy. Muthana’s choices were exacerbated by her use of social media to celebrate and encourage violence. Polman is known to suffer from post-traumatic stress disorder. What they share is the right to return home to face trial and punishment in their countries of citizenship.

All states have justice systems in place so that suspected wrongdoers can be tried and punished. Democratic justice systems are those that respect due process rights: the rights to a fair trial, including adequate legal representation, which permits the relevant evidence to be adjudicated by trained judges and, where relevant, juries of their peers.

It is conventional to say that citizens must be presumed innocent until proven guilty, and this convention holds even where there appears to be incontrovertible evidence of guilt. Its purpose is to allow the possibility that what looks like a slam-dunk case is murkier upon examination, to ensure that in collecting evidence all of the rights of the accused were respected, and furthermore to allow for the presentation of extenuating circumstances that can complicate what seems like a simple guilty verdict.

There is more to criminal justice in democracies, moreover, than how the accused are treated during the trial phase. The punishments must also meet democratic criteria. It is a principle of punishment in democratic states that any citizen, no matter how criminal, must be treated as someone who can re-enter the community of equals from which she was temporarily excluded by punishment. This principle is why the death penalty must be rejected. It is also why denationalization must also be rejected.

Denationalization of terrorists, the process of revoking citizenship from those suspected of terrorist activities, is gaining in popularity in democratic states, who are rushing to prove they are tough on terror. Denationalizing terrorists is good politics.

Nevertheless, denationalization is unjust and undemocratic. It permits states to abandon citizens who are entitled to their protection in dangerous locations, in principle free to commit additional crimes. The Trudeau government recognized as much when it overturned the parts of the Strengthening Citizenship Act that permitted the revocation of citizenship. Weaselly words stating that Canada is not under the obligation to facilitate the return of suspected wrongdoers reveal an unwillingness to stand by the commitment implied by Mr. Trudeau’s now famous statement, “A Canadian is a Canadian.” Canadians, even criminal Canadians, are entitled to have their rights protected by Canada.

By revoking citizenship, states punish citizens suspected of criminal activities by banishing them, in advance of conviction. They treat them as unworthy of having their rights protected, as beyond the pale, rather than as individuals who in time can learn the error of their ways. These women must be returned to their states of citizenship so that we, their fellow-citizens, can judge their actions and, if appropriate, witness their just punishments.

Source: Punish homegrown terrorists. Don’t revoke their citizenship

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

2 Responses to Punishment or Banishment?

  1. Robert Addington says:

    Banishment and exile have no place in the legal system of any modern democratic state. Mixing citizenship law and criminal law is bad law and bad policy. What right has Canada — or any other Western country — to dump its unwanted citizens in a Third World country to which they have no real connection and where they may have no family and not even speak the language?

    The right of a citizen to return to Canada is guaranteed by section 6 of the Canadian Charter of Rights and Freedoms. That section was put there to prevent any repetition of what happened to 4,000 Japanese-Canadians — half of them born in Canada — in 1946. The Federal Court has ruled, in Abdelrazik v. Canada (Minister of Foreign Affairs), [2009] FCA 580, that the government cannot deny a citizen the right to return by refusing to issue or renew a passport.

    On consular services: Every applicant for a Canadian passport must pay a consular services fee ($25, I believe). If you pay the fee, you’re entitled to the service. This does not mean, though, that Canadian officials should be expected to risk their lives to get a citizen out of a war zone.

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