By Casey Hare-Osifchin
It is often believed to be a fundamental right to be able to travel in and out of your home country. However, the evolving threat of terrorism has challenged the limits to the freedom of movement. Young men have flocked to aid the Islamic State in the Levant (“ISIS”) in battle to establish the caliphate, and have often been charged with conspiracy to provide material support to a terrorist organization in response. Another group has gone to support ISIS as well–by 2015, over 550 young women had left their Western nations to join ISIS, often recruited to be what is known as an “ISIS Bride.”
Many countries that have received repatriation requests for the return of ISIS Brides have denied reentry and sometimes even revoked the Brides’ citizenship without due process. The United States and other Western nations are violating international, and sometimes domestic, laws by refusing the return of these ISIS brides and their children.
The Universal Declaration of Human Rights (“UDHR”) enumerates the right to movement in and out of an individual’s native country and the right to not be without a nation. Though the United States is a party to the UDHR, the U.S. Supreme Court has held that the UDHR is not binding on the United States without being codified in American law. Despite this, many argue that the UDHR is binding even on nations that have not accepted the Declaration. By being members of the United Nations, the United States and other nations have inherently agreed to these human rights standards.
The United States’ and other western nations’ ratification of the International Covenant on Civil and Political Rights further enforces these rights through Article 12. The use of the word “arbitrarily” in Article 12 means in “accordance with the laws of the United States” and would thus imply a right to due process. While due process suits related to the ISIS Brides have been filed in both the United States and the United Kingdom, the declarations revoking citizenship were not accompanied by due process. Although Article 4 grants the right of derogation, the nation only has the right to suspend certain laws in emergency situations. There is no emergency declared within the United States which warrants a total bar on the return of an U.S. citizen.
While 8 U.S. Code § 1481 allows for revocation of birthright citizenship, the stereotypical ISIS bride does not meet the criteria set forth in the text of the code. 8 U.S. Code § 1481(a)(2) states that citizenship may be considered to be surrendered when an individual “tak[es] an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years.” ISIS brides often aren’t yet eighteen when they leave their nation. Further, while typically posting their allegiance on social media, it is unclear whether there is any formal oath taken. Though often ISIS brides burn their passports, this is not considered a relinquishment of citizenship.
Finally, allegiance to ISIS is not allegiance to a Foreign State. If ISIS was considered to be a foreign state, it would undermine the United States’ mission against the terror organization and legitimize their organization. U.S. Code § 1481(a)(3) states that citizenship may be considered to be surrendered when an individual is serving in a foreign state’s armed services which is “engaged in hostilities against the United States….” Though ISIS is engaged in hostilities with the United States, they cannot be deemed a foreign state as stated above. Further, while ISIS brides sympathize with ISIS’s goals, they are often not serving in the armed capacity of ISIS.
8 U.S. Code § 1481(a)(7) states that citizenship may be considered to be surrendered when an individual is:
committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18… or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.
The last line of Section 7 is critical. The citizenship of native born U.S. ISIS brides under this provision is not revocable until conviction of this crime. This conviction is highly improbable given that nobody has been convicted of the crime of treason since 1952. Treason has been charged federally in the United States less than 30 times with very few convictions. Part of the reason for this is that the Constitution of the United States made this a very restrictive law, requiring “two witnesses to the same overt act, or on confession in open court.”
Finally, the wording in the overarching statute requires that the citizen voluntarily performs any of the acts “with the intention of relinquishing United States nationality.” In this context we should consider the terms “voluntary” and “intention.” It is important to assess the mentality and age of any citizen who leaves to be an ISIS bride. ISIS targets and exploits the vulnerability of the young. Many of these girls have gone through a period of grooming and brainwashing. Though defenses of coercive persuasion have not typically worked, research on the effects of pressures and marriages on the young female’s mind is crucial to consider.
Further, aside from legal right of return, there is strategic benefit to allowing these ISIS brides to return to their home nation. Allowing the ISIS Bride to repatriate allows Western governments to control the person and subject her to justice, reduces a view that Western nations devalue the lives of non-Judeo-Christian believers, and facilitates healthy relationships with allies in the fight against ISIS. The United States and other Western nations have a duty to repatriate ISIS brides.
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