Human Rights and British Citizenship: The Case of Shamima Begum

This article will discuss whether the citizenship of children who travel to join terrorist organisations should be revoked, due to the risk they pose to public security. The deprivation of citizenship is explored; it is submitted that the statement is mistaken, children should be repatriated with the intention that they face justice, and due process must be followed.

The increased participation of child soldiers is not a new development in modern armed conflict, such that children have actively been recruited through various means to be involved in warfare. There are various reasons for the involvement of children, however, and the central focus in this article will be the case of Shamima Begum – a British citizen whose British citizenship was revoked after she fled the UK as a child to join the terrorist organisation ISIS in Syria.

Whilst the phenomenon of conscripting and using children in hostilities is not new, this article seeks to address how child soldiers and children involved in armed conflict should be treated by states and whether or not rendering a child stateless is an appropriate measure under the framework of International Humanitarian Law.

In 2019, Begum requested to return to the UK [1]. It is integral to question the moral legitimacy for a state to revoke the citizenship of an individual, especially in line with maintaining and respecting the inherent dignity of the citizen in question and the implications for statelessness cases. It is equally necessary to question the potential impact on an individual who becomes stateless.

The British home secretary, Sajid Javid, who is empowered to revoke the nationality of holders of dual citizenship where this is deemed “conducive to the public good”, revoked the citizenship of Shamima Begum – a dual national of Bangladesh, and stated this was necessary under: “Section 40 (5) of the British Nationality Act 1981, that I intend to have an order to deprive you, Shamima Begum, of your British citizenship under Section 40 (2) [2].”

Subsequently, various groups of society began questioning the policies surrounding citizenship, citizen rights, and lawfulness of state-imposed statelessness. Bangladesh had also refused Begum to return, and as a result of the UK’s decision, Shamima Begum was rendered stateless. Furthermore, it later transpired that the UK had failed to consult with Bangladesh [3].

It is necessary to recognise the complexity of this case, as three sets of proceedings had reached the courts with this case [4]. All three cases were rooted from the February 2019 decision to deprive Shamima Begum of her British citizenship.

The Begum case has aroused much deliberation regarding the justification of the removal of UK citizenship of children who travel to join terrorist organisations; this concerns the issues of trial by media, the arbitrariness of citizenship removal, and due process [5]. With the defeat of ISIS, countries (predominately in the West) are facing a dilemma as to whether or not child soldiers should be reintegrated into society or stripped of their citizenship, as without a doubt there are various factors to consider.

It should be duly noted, however, that there does not appear to be any concrete policy when considering the status of these children, rather individual governments appear to be making sporadic decisions governed by the political climate. It can be submitted that some former child-soldiers have been ‘otherised’ by independent states as they are largely from marginalised groups in society.

Let us now turn to the subject of terrorism and media furore. The UK media fuelled the national fascination with Shamima Begum due to her status as an underage Muslim female with terrorist sympathies [6] – various media outlets used the face of Shamima Begum on stories regarding ISIS and their activities across Syria and Iraq.

In a report by the Center for Media Monitoring, it was made clear that while the media is not necessarily inclined to answer who is a terrorist and who is not, and what is an act of terrorism and what is not – the media does attempt to do so through it “selective use of the terms terror, terrorist, and terrorism” [7].

The report also highlights that since 9/11, terrorism has become “synonymous” with Muslims and the religion of Islam. Some may argue that this contributed to her being made an example of by the UK government [8]. There is not a complete picture of the socio-demographic profile of girls who leave their home countries to join terrorist groups due to reasons including a reluctance to cooperate with researchers and ongoing investigations [9].

It has been positioned that Begum may have been susceptible to grooming; when she left the UK, she was legally a minor [10]. Groomers play a central role in placing young females on the path of violent extremism. Males and females that recruit for terrorist organisations prey on vulnerable individuals or those easy to manipulate. When exploring the psychology of the groomers, it becomes abundantly clear that the tactics deployed include searching for those experiencing poverty, children from broken households, those in search of an identity, and perhaps those with extreme views pertaining to their faith.

Cultural relativists may argue that this includes those that believe it is ‘normal’ for children to partake in warfare. Through the use of social media, terrorists were recruiting young females and luring them with incentives – however, it was not until the females reached the designated countries that they realised they were being used as sex slaves and wives to the male soldiers; such is the case with Shamima Begum. Other women were positioned as recruiters or front-line fighters. ISIS used a “gender-tailored approach” to attract foreign fighters and sympathisers [11], and the women that had joined the terrorist organisation were being dubbed as “Jihadi Brides.”

International comparative law provides insight into the status of former child terrorists and Begum’s case; specifically, the case of Dominic Ongwen, a former child soldier in the Ugandan Lord’s Resistance Army. Ongwen was said to be responsible for the deaths of more than 345 civilians in 2009 in Congo’s Makambo massacre [12]. Ongwen, estimated to have been between nine and fourteen years of age when he was was kidnapped by the Lord’s Resistance Army (LRA) and taught to carry out terrorist activities against the Government of Uganda and defenseless civilians, later became a notorious rebel commander.

The International Criminal Court (ICC) acknowledged the trauma suffered by Ongwen as a child but deemed him responsible for his actions as an adult, and thus judged him guilty for sixty-one counts of war crimes and crimes against humanity committed in Northern Uganda after July 2002 [13]. Dominic Ongwen was the first abducted child soldier to be charged by the ICC and declared guilty for crimes he had also suffered at a young age. Dubbed as the case of ‘many firsts’, the court was required to tackle the tough question of holding Ongwen, a high-ranking commander of the LRA, who was also a victim in his own right.

Comparisons of the cases of Dominic Ongwen and Shamima Begum suggest that Begum should not have been stripped of her citizenship, but instead repatriated to the UK to face trial for her close involvement and sympathies with terrorism. This approach is compliant with respect for due process and is a requirement of both domestic and international law [14]. Ongwen’s case demonstrates the obscurity between culpability and victimhood.

The complexity was evident in the narratives presented by both the defence and prosecution, such that the prosecution depicted Dominic Ongwen as a mass murderer and heinous commander of the LRA, whereas the defence presented Ongwen as a victim who was kidnapped and groomed into joining the LRA and carrying out various atrocities. Ongwen’s defence argued against his prosecution and highlighted that he was a victim on the ground of ‘duress’.

In addition to this, Ongwen’s defence noted that as a result of being abducted at a tender age, Ongwen lost his childhood and the decisions he made in life were as a result of the traumatising experience he had endured since childhood. In the opening statement, the defence exclaimed to the court:

“What was the impact of indoctrination, of spiritualism, of the coercive environment, of the injuries, of everything that happened to Dominic Ongwen in 27 years, what was the impact on his mind?” [15]

The court had the complex task of serving justice to Dominic Ongwen’s victims, but also justice to Ongwen himself. At this juncture, it can be argued that Shamima Begum’s experience as a fifteen-year-old child who was groomed into joining ISIS in Syria could have also served as a mitigating factor to prevent her from having her citizenship revoked.

Further to this, the argument for repatriation of Shamima Begum and upholding due process is supported by the fact that she did not actively partake in terrorist activity in Syria but was a housewife, and she may become further radicalised by the revocation of her citizenship [16]. Women and children who are stripped of their citizenship are at a heightened risk as they remain in close proximity to extremist groups and individuals who actively partake in terrorist activities.

It can be argued that children who were groomed should have the chance to seek support for the trauma endured and to reintegrate into society whilst upholding the correct values and respect for the society they return to – this is similar to rehabilitation programmes that are offered to offenders. Child soldiers should be held accountable for their activities; however, their history and experiences should not be dismissed.

Further to this, one may question are child soldiers’ victims or are they perpetrators – and there are different perspectives that can be explored. For example, Mark Drumbl, Director of the Transnational Law Institute of Washington and Lee University presents a nuanced yet multifaceted view of child soldiers. One idea presented by Drumbl is that most child soldiers are in fact adolescents and not young children. Drumbl further presents the notion that a significant number of child soldiers do not commit acts of violence when involved in conflicts.

However, he also notes that most child soldiers are not recruited forcefully, rather they voluntarily enlist with certain groups [17]. Additionally, Mark Drumbl highlights varying images of child soldiers that are presented in public discourse, arguing that it is that of the ‘faultless, passive victim’ that has dominated the public sphere which essentially presents a legal fiction. Drumbl deems inter alia the possible consequence of faultless passive victim imagery.

Included in this is the main idea that child soldiers may portray themselves as “victims” of war, or a generalised view that it is not the child’s “fault” and this essentially impacts the view of childhood in international law as well as in policy, leading this to lack nuance and much credibility. Professor Mark Drumbl concludes that generalising all child soldiers as individuals as victims fails child soldiers who have actively been involved in perpetrating atrocities, fails those who were victims of such atrocities, and ultimately also fails the society where these child soldiers intend on returning to.

Moving on, different states have taken various approaches to former child terrorists. Many European states have refused to repatriate them [19]. For example, in Belgium the policies on repatriating children were categorised into age brackets, some reports indicated that any child under the age of 10 had the right to be immediately returned to Belgium whereas children aged between 10 and 18 did not have the immediate right, and each case would be dealt with individually. Indonesia and Russia, amongst others, have repatriated women and children who have travelled abroad for terrorism, on grounds of both humanitarian concerns and for security purposes.

There is also the argument that the UK has allowed former terrorists to return who were not only sympathisers but known fighters with ISIS [20]. This is not congruent with the UK government’s treatment of Shamima Begum, of whom they may have made an example of. It was reported that an estimated 360 of the 900 Britons that travelled to fight with ISIS had already returned to the UK.

At this juncture, it should be questioned why Shamima Begum – a young female who did not participate in terror activities or recruit any individuals was stripped of her citizenship whilst others who did fight alongside ISIS terrorists were allowed into the UK and able to enjoy their citizenship. It can also be submitted that any child soldier that was radicalised in Britain or in any European country prior to travelling to another country to join an armed force or designated terror group should be tried by the British courts or the courts where the child soldier was a resident of, as they are not the responsibility of the country they travelled to.

In this case, Shamima Begum should have been tried by British Courts, as opposed to being left in a camp in Syria as she is not Syria’s responsibility nor is this the responsibility of the International Criminal Court. The prosecutor of the ICC has stated that it does not have territorial jurisdictions over the alleged crimes committed by ISIS, nor is it within the remit of the ICC to try individual child soldiers, as the ICC primarily deals with mass atrocities and the perpetrators, for example, the leading commanders in ISIS.

Turning now to the deprivation of citizenship, UN Resolution 2178 (2014) distinguishes between foreign fighters, individuals who purposely travel to “join a party engaged in armed conflict” [21] and foreign terrorist fighters who travel to perpetrate terrorist acts and receive terrorism training [22]. The classification embraces women and children and classifies them, and indeed any foreigners with links to ISIS as foreign terrorist fighters [23]. UN Resolution 1373 (2001) mentions:

“Member States shall ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice.” [24]

Upon analysing UN Resolution 1373,  it is critical to question the role every child soldier had when involved with the terrorist organisation, such that if the child does not qualify as a terrorist, and did not partake in the financing, planning, preparation, or perpetration of terror acts then what is the exact reason countries are refusing to repatriate the individuals.

Critics have questioned if the British Secretary of State acted unlawfully when stripping Shamima Begum of her citizenship and rendering her stateless. A counterargument that may be posed here is that States face difficulties in discovering the truth of an individual’s foreign activity; for this reason, most European states classify any foreigners with links to ISIS as foreign terrorist fighters [25]. It is further argued that courts should take the appropriate action and concentrate on reintegration and reducing the exposure to extremism as opposed to allowing politicians to make decisions on policies and individual cases without their being essential guidelines.

An exemplary agreement to look at is the agreement between the UN and the Government of Sierra Leone on the Establishment of the Special Court of Sierra Leone (SCSL), which allowed the court to prosecute “persons most responsible for serious violations of international humanitarian law and Sierra Leonean Law” committed in the country since 1996. Though juveniles aged between fifteen and eighteen were not imprisoned, they were “sentenced” to rehabilitation programmes [26]. The SCSL adopted sections of the Rome Statute and ensured no child under the age of eighteen would be prosecuted, to ensure the dignity of the individual is maintained and their “sense of worth” is not impacted.

Another significant aspect to include in this discussion is that of English law. English law is even more prescriptive; the powers for the removal of citizenship are expanded by the Nationality, Immigration and Asylum Act 2002, with the test based on whether the Secretary of State considers whether the individual has done anything “seriously prejudicial to the vital interest” of the UK or a British overseas territory [27].

The scope of this power is extremely wide and arguably unjust if applied blindly to all cases. One can argue that since 9/11, citizenship has been closely linked to public/national security. As such, the “war on terror” encouraged governments to revoke citizenships of those they believed to be a threat. At this juncture, it is critical to question where states like Britain prioritise the human rights of the individual.

It is understandable that the state is obligated to protect the nation, but is it morally acceptable and lawful to do so at the expense of the rights of others? Returning to the case of Shamima Begum, when revoking her citizenship, did the Secretary of State Sajid Javid ponder on the rights of Begum as outlined in the United Nations Convention on the Rights of the Child (1989)?

Enshrined in Article 6 of the European Convention on Human Rights (ECHR) is the right to a fair trial [28] – it is alleged that denying Shamima Begum of this right sets a dangerous precedent for other individuals and undermines the rule of law. It also demonstrates that Britain dismissed its responsibility towards Begum, for instance in the Children’s Act 1989 [29] it specifically mentions: “the child’s welfare shall be the court’s paramount consideration” yet that appears to be absent in this decision made by the Secretary of State.

To conclude, it is argued that the revocation of citizenship of children who travelled to join terrorist organisations is incorrect. It should be considered that even if the children were to pose any form of danger upon repatriation, such action ignores the legal requirements of due process as well as judgements in international law which recognise the susceptibility of children, as well as that of girls to the grooming process. Even a former child soldier is entitled to receive a fair trial and the proper legal process must be followed. Stripping a child of their citizenship automatically denies them of their rights – rights that are explicitly clear by the United Nations and other human rights bodies.

Finally, it is important to note that systemic racism and colonialist attitudes can influence decisions in regard to citizenship. As discussed earlier, since 9/11, Muslims in Britain have been presented as the ‘other’ which makes it difficult to trust that the politically charged decision to revoke Begum’s citizenship was not in correlation to her faith and appearance. The Home Secretary mentioned Begum posed a “real threat” but failed to mention that Begum was groomed [30], a victim of underage marriage [31], and a child that undoubtedly was traumatised [32].

Thus, it is submitted that children and former fighters that seek reparation in Europe/Britain can often be met with dehumanising practices which prevent them from enjoying their rights. It is further argued that preventing child soldiers and former fighters from seeking reparation exposes them to more violence, trauma, psychological issues, human rights abuses and ultimately allows them to be further indoctrinated and radicalised. Principally, allowing child soldiers and former fighters to return allows them to be tried, rehabilitated, and deradicalized.

 [1] Masters, M. and Regilme S. S. F. Jr. “Citizenship Revocation as a Human Rights Violation: The Case of Shamima Begum” E-International Relations – 28th November 2020. Available at:< https://www.e-ir.info/2020/11/28/citizenship-revocation-as-a-human-rights-violation-the-case-of-shamima-begum/>Accessed 20/04/2021.

[2] https://www.supremecourt.uk/cases/docs/uksc-2020-0156-judgment.pdf

[3] Nyamutata, C. “Young Terrorists or Child Soldiers? ISIS Children, International Law and Victimhood” Journal of Conflict and Security Law, (2020 Volume 25, Issue 2:237–261 (239).

[4] R (on the application of Begum) (Appellant) v Special Immigration Appeals Commission (Respondent) R (on the application of Begum) (Respondent) v Secretary of State for the Home Department (Appellant) Begum (Respondent) v Secretary of State for the Home Department (Appellant)

[5] Ibid.

[6] Bloom, M. and Lokmanoglu, A. “From Pawn to Knights: The Changing Role of Women’s Agency in Terrorism?” Studies in Conflict & Terrorism (2020) DOI: 10.1080/1057610X.2020.1759263

[7] Hanif, F. “How the Media reports terrorism” Available at: https://cfmm.org.uk/wp-content/uploads/2020/08/CfMM-How-British-Media-Reports-Terrorism-ONLINE.pdf>Accessed 18/04/2021.

[8] Ibid.

[9] Siwczyk, T. “From Girls to Women Are (Minor) Female Foreign Fighters Child Soldiers or Jihadi Terrorist Brides? (A Legal Analysis of the United Kingdom’s and Austria’s State Responses to this Phenomenon)” Irish Centre for Human Rights, 2019. (20)

[10] Rahman, S. Z. “Nationality and Statelessness- Legal Issues Involving in Shamima’s Case”, Journal of Judicial Administration Training Institute (A collection of writings on various judicial and legal topics) June 2020, Volume 19::31-52 (35)

[11] Siwczyk, T. “From Girls to Women Are (Minor) Female Foreign Fighters Child Soldiers or Jihadi Terrorist Brides? (A Legal Analysis of the United Kingdom’s and Austria’s State Responses to this Phenomenon)” Irish Centre for Human Rights (2019). (22).

[12] ‘Questions and Answers on the LRA Commander Dominic Ongwen and the ICC’ (Human Rights Watch, 5 December 2016) accessed 18/04/2021.

[13] Kan, G. “The Prosecution of a Child Victim and Brutal Warlord: The Competing Narrative of Dominic Ongwen” SLJ 5(1): 131-156 (135).

[14] Psilakis, A, A. “Counter terrorism and international human rights, stripping citizenship, states struggle to confront foreign fighters”, International Enforcement Law Reporter, (2019) Vol 35, Issue 3 (101).

[15] Prosecutor V Dominic Ongwen Trial hearing Opening Session: Defence Opening Statements Criminal CourtICC-02/04-01/15 18 September 2018, 41.

[16] Shaub, J. “Hoda Muthana and Shamima Begum: Citizenship and Expatriation in the U.S. and U.K.” Lawfare (25^th February 2019) Available at:<https://www.lawfareblog.com/hodamuthana-and-shamima-begum-citizenship-and-expatriation-us-and-uk> Accessed 20/04/2021.

[17] Mark Drumbl, Reimagining Child Soldiers in International Law and Policy (2012).

[18] I. Beah, A Long Way Gone: Memoirs of a Boy Soldier (Sarah Crichton Books 2007), p. 96.

[19] Kennedy, R. “What is Europe’s approach to repatriating ISIS members” Euronews. 7^th March 2019. Available at: <https://www.euronews.com/2019/03/07/what-is-europe-s-approach-to-repatriating-isis-members-euronews-answers> Accessed 20/04/2021.

[20] Warrell, H. “UK faces uphill challenge in resettling Isis jihadis” Financial Times, 17^th November 2019. Available at:<https://www.ft.com/content/11fd7c00-0790-11ea-a984-fbbacad9e7dd> Accessed 27/04/2021.

[21] de Guttry, A.; Capone, F.; Paulussen, C. “Introduction”, in A. de Guttry, F. Capone, C. Paulussen (eds), Foreign Fighters under International Law and Beyond (Springer/Asser Press 2016) 2.

[22] UN Resolution S/RES/2178 (2014).

[23] Ibid.

[24] UN Resolution S/RES/1373 (2001).

[25] van Ginkel, G.; Entenmann, E., “The Foreign Fighters Phenomenon in the European Union Profiles, Threats and Policies” ICCT (April 2016) (32). Available at: <www.icct.nl/wp-content/uploads/2016/03/ICCT-Report_Foreign-Fighters-Phenomenon-in-the-EU_1-April-2016_including-AnnexesLinks.pdf>. Accessed 20/04/2021.

[26] Joshua Romero, ‘The Special Court for Sierra Leone and The Juvenile Soldier Dilemma’ [2004] 2(1) Northwestern Journal of International Human Rights

[27] Nationality, Immigration and Asylum Act 2002, Section 4(2) the British Nationality Act 1981, Section 40(2)

[28] European Convention on Human Rights, Article 6.

[29] Children’s Act (1989).

[30] M Segalov, ‘Shamima Begum was groomed She deserves the chance of rehabilitation’ (The Guardian, 14th February) <https://www.theguardian.com/commentisfree/2019/feb/14/shamima-begum-grooming-islamic-state-pregnant-uk> accessed 20 May 2021.

[31] Gopal, P. 2019. When Do You Become ‘British Enough’?. Al Jazeera. https://www.aljazeera.com/ indepth/opinion/british-190228141135189.html

[32] Davies, G., and V. Ward. 2019. Shamima Begum is ‘Traumatised’, Says her Lawyer as he Likens ISIL Bride to a First World War Soldier. The Telegraph. https://www.telegraph.co.uk/news/ 2019/02/18/isil-bride-traumatised-says-lawyer-likens-first-world-war-soldier (referenced 4 Nov 2020).