As one of the core elements in a series of counter-terrorism measures taken in response to the war in Syria and the involvement of Dutch volunteers, a criminal conviction related to terrorism or involvement in particular organisations, is grounds for a perpetrator’s Dutch nationality to be revoked (for more on the Dutch and Belgian approaches, see Fadil, De Koning and Ragazzi 2019). A measure which can only be applied to those with dual nationality, as has been recognised in the political debates, and in the legal advice given before the measures were taken. In a recent verdict however the Dutch Council of State argued that this is not discrimination and damaging essential interests of the Dutch state, renders a person’s attachment to the Netherlands meaningless.
My argument here is twofold. First, I will argue that contrary to the Netherlands Council of State’s recent verdict, this policy can be identified as a form of indirect, institutionalised discrimination and yet another example of the conditional citizenship provided for citizens who are considered to be out of place. Second, I will show that the verdict conflates the Dutch state with nation and society, and in so doing conceals the precarious position of some citizens in Dutch society by employing a language of security.
A new legal precedent
Under Article 14(2)(b) of the Dutch Nationality Act, Dutch citizens who are found guilty of committing a terrorist offence will lose their Dutch Citizenship, be expelled from the country and lose the right to return. Although the measure itself is drawn up in neutral and general terms, its effects are felt only by specific categories of Dutch citizens based upon their citizenship status and descent. Here we can see how the Dutch state upholds the prohibition on making its citizens stateless but does not uphold the equal treatment principle. In actuality the state instrumentalises the prohibition on statelessness to indirectly discriminate against people based upon their descent and citizenship status (for critique, see De Groot and Boekestein) .
On 30 December 2020, however, the Netherlands’ Council of State – the country’s highest court on administrative issues – ruled that revoking the nationality of a Moroccan-Dutch citizen who was found guilty of involvement in terrorism, does not constitute a violation of the prohibition of discrimination. Furthermore, contrary to what the defendant claimed, revoking Dutch nationality was not regarded as an unlawful ‘double’ punishment because the conviction about involvement with a terrorist organisation was a criminal conviction and this, according to the council of State, was an administrative matter. It is a ground-breaking verdict because, in the context of combating terrorism, it legitimises treating dual nationality citizens differently than Dutch nationals who have only Dutch nationality.
Essential interests and conditional citizenship
Several international instutions have already submitted their critique on the Dutch state’s approach in this particular case. Read for example the Amicus Brief of the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance; the policy brief by the Meijers Committee prior to this verdict; and the expert report, briefing note and reaction by the Institute for Statelessness and Inclusion (ISI) in this case. Here, I want to focus on one specific aspect of the ruling which has puzzled me: the conflation of state, nation and society, which is particularly evident in the following quote from the verdict (first in Dutch, then my translation):
De staatssecretaris heeft niet ten onrechte in aanmerking genomen dat de omstandigheid dat [appellant] sinds zijn geboorte beschikt over de Nederlandse nationaliteit gelet op de aard en ernst van de gepleegde feiten en de ernstige schending van de essentiële belangen van de staat onvoldoende zwaarwegend is om de intrekking van het Nederlanderschap en daarmee het verlies van het Unieburgerschap onevenredig te achten. De staatssecretaris heeft verder terecht in aanmerking genomen dat met de intrekking van het Nederlanderschap tot uitdrukking wordt gebracht dat de band tussen Nederland en [appellant], zijnde iemand die de essentiële belangen van de Nederlandse staat ernstig heeft geschonden door het begaan van terroristische misdrijven, niet langer kan bestaan.
The Secretary of State did not wrongly take into account that the fact that the [appellant] has had Dutch nationality since birth, given the nature and seriousness of the offences committed and the serious violation of the essential interests of the State, is not sufficiently important to regard the withdrawal of Dutch citizenship and thus the loss of EU citizenship as disproportionate. The Secretary of State also rightly took into account that the withdrawal of Dutch citizenship demonstrates that the link between the Netherlands and the [appellant] being someone who has seriously violated the essential interests of the Dutch State by committing terrorist offences can no longer exist. [author’s italics]
What we see here is the judge accepting the state’s claim that its ‘essential interests’ were damaged (basically referring ‘only’ to the conviction in penal court) and that terrorism, and involvement in a terrorist organisation in Syria, damages those essential interests. It is entirely unclear, however, what these interests are, how they have been damaged and to what extent. Moreover, as this is partly about the risk posed by potential terrorist acts, it is ‘society’ (whatever that may be) which could be damaged. Not necessarily the state. But at no point did Maher (the appellant) threaten the Dutch state or society. Moreover, damaging those interests is regarded by the Council of State (following the State Secretary) as a clear indication that the ties that bound him to the Netherlands (as a nation) no longer existed. But does damaging the state indeed mean that a person can no longer have ties with the nation? Not only are state, society and nation collapsed in this verdict into one amalgam of descent, citizenship, loyalty and state interests, I have never ever seen such a reasoning in case which do not involve someone with a so-called migration background. And, whereas state, nation and society are conflated in support of the claims of the state, the nation and society are separated in a way that is detrimental to the defendant: he is part of a society but no longer of a nation.
Council of State and racial discrimination
We may wonder how specific this conflation is for counter-radicalization policies and be concerned about the role the Council of State has taken in this matter. Recently, in what might be the greatest injustice perpetrated by the Dutch state on Dutch soil in the last 45 years, a parliamentary committee stated that an ‘unparalleled wrong’ (and one which undermined the very principle of just governance), ‘had been done to parents who were accused of defrauding the childcare benefit system. Hundreds of parents found themselves in serious financial difficulty, and being accused of fraud, after the tax office began clawing back thousands of euros in benefits which they said had been wrongly paid in 2012.’ At least ‘11,000 people were subjected to extra scrutiny because they had dual nationality. Ministers, civil servants, parliament and even judges had a role in the affair, which left parents powerless to fight back when accused of cheating.’ Not only did it destroy livelihoods but it pushed huge numbers of innocent people into debt for years to come. In the investigation (leading to the collapse of the Dutch government), the Council of State was also criticised for its lack of independence and for uncritically accepting the claims of the State at face value. From 2010 onward, every appeal made to the Council of State was rejected until 2017 when the first victory was achieved. Until then a callous policy was given legal justification without any solid evidence being produced. The Council of State clearly neglected its duty to uphold the individual legal protections of Dutch citizens against the state. We may wonder what the critical evaluation would be if the lessons learnt in the tax scandal were applied to counter-radicalisation policies.
People out of place
To a certain extent one might feel inclined to agree with the state’s, insufficiently corroborated, argument that its interests were damaged. Committing a terrorist act seems reason enough for claiming that ‘essential interests’ were damaged; indeed ‘essential interests’ already appears to be a very racialised term in of itself. But what harm has actually been done here? The defendant has not committed any violent acts on Dutch soil. In the case of the Syria volunteers (see also De Koning, Becker and Roex 2020), this challenge pertains specifically to those who cross borders and boundaries: those who move from one country to another, without authorisation from any state institution or democratic body, with the intention of fighting for a specific cause which is regarded as being ‘at odds’ with good citizenship.
Any nation-state is a socio-political project which by definition includes and excludes people and some people may be the target of a conditional exclusion. Such processes often take place along racial lines with ideas about what constitutes the original population which must be protected against others who potentially threaten the position of the original population and thereby the integrity and purity of the nation. The precarious status of people with dual nationality is not unique: in the child benefit scandal, counter-radicalization monitors, dual nationality serves as one of the indicators of risk. This legal discussion on the citizenship status of a Dutch war volunteer builds upon discourses about ‘out-of-placeness’ which are embedded in beliefs about people’s origins and in essentialist understandings of cultural and the visible differences related to those origins (Yanow and Van Der Haar 2013). These discourses are deployed in debates and policies designed to manage risks and threats to peace and social cohesion (Mügge and van der Haar 2016; Yanow, Van Der Haar, and Völke 2016; De Koning 2019; Groothuis 2020). It is a logic we can encounter in academic surveys and policy instruments as anthropologists Wiebe Ruijtenberg and Anouk de Koning have argued. And, as we can see now, in legal proceedings as well. It is language about terrorism and security like this which renders the highly-racialised positioning of Muslims with a migrant background as almost natural, technocratic and apolitical whilst concealing the racialising underpinnings and effects that discourse like this has.
The racialised border work of terrorism charges and citizenship
The case at hand shows how important citizenship is, but also how precarious it is if you are considered ‘out of place’. It also reveals how this precariousness is built upon a hostile and racialised system, and strongly embedded in wider structures of Othering and racialisation. The acceptance – without much proof – of the claims of the Dutch state and conflating state, nation and society, turns the Dutch state into an unassailable machine. It is crucial therefore that we interrogate the racialised border work that is being done here.
Literature used (but not linked to):
De Koning, Martijn. “The Racialization of Danger: Patterns and Ambiguities in the Relation between Islam, Security and Secularism in the Netherlands.” Patterns of Prejudice 54, no. 1-2 (2020): 1-13. https://doi.org/10.1080/0031322x.2019.1705011. https://dx.doi.org/10.1080/0031322X.2019.1705011.
De Koning, Martijn, Carmen Becker and Ineke Roex. Islamic militant activism in Belgium, the Netherlands and Germany – ‘Islands in a sea of disbelief’. (London, Palgrave, 2020).
Fadil, Nadia, Martijn de Koning, Francesco Ragazzi. Radicalization in Belgium and the Netherlands. Critical Perspectives on Violence and Security. (London, Bloomsbury 2019).
Groothuis, Sanne. “Researching Race, Racialisation, and Racism in Critical Terrorism Studies: Clarifying Conceptual Ambiguities.” Critical Studies on Terrorism (2020): 1-22. https://doi.org/10.1080/17539153.2020.1810990. https://dx.doi.org/10.1080/17539153.2020.1810990.
Mügge, Liza, and Marleen van der Haar. “Who Is an Immigrant and Who Requires Integration? Categorizing in European Policies.” In Integration Processes and Policies in Europe, 77-90: Springer, Cham, 2016.
Yanow, Dvora, and Marleen Van Der Haar. “People out of Place: Allochthony and Autochthony in the Netherlands’ Identity Discourse — Metaphors and Categories in Action.” Journal of International Relations and Development 16, no. 2 (2013): 227-61. https://doi.org/10.1057/jird.2012.13. https://dx.doi.org/10.1057/jird.2012.13.
Yanow, Dvora, Marleen Van Der Haar, and Karlijn Völke. “Troubled Taxonomies and the Calculating State: Everyday Categorizing and “Race-Ethnicity”—the Netherlands Case.” The Journal of Race, Ethnicity, and Politics 1, no. 2 (2016): 187-226. https://doi.org/10.1017/rep.2016.7. https://dx.doi.org/10.1017/rep.2016.7.