By Mikael Hertig. *
This article claims that is reason to be worried about a new Danish law removing Danish citizenship of people who are suspected for having been warriers connected to Islamic State. First, the legal doubts concentrated of ECHR article 6 (fair trial) is mentioned. But also other rules (private life, right to speech) are mentioned. After the legal presentation, the matter is treated based on the writings og Edmund Burke and Hannah Arendt. This leads to two statements. The focus is not only on the role of human rights in respect of national state versus international law but also on the tension between security as countermeasures to threats and to a theatre prepared to give the people a feeling of security. If these two regards are out of balance, eg. if the threat is inadequately unbalanced in relation to the threat, we have another type of human rights problem. As the threat is kept secret, it is impossible to be conclusive. But it should be made more clear.
2. The Bill and its motives
3. The legal question: Relations between Human rights and national law
4. The possible violations in a Human Right’s perspective
A new Danish law1 grants the power administratively to expatriate persons preliminery suspected for being IS terrorists if these are considered to hold double citizenship. In practice, the opportunity for a person in question to claim this decision is substantially shortened. The law has been exposed to critique of violating Human Rights. The question now is if and eventually how this law is in conflict with and violates Human Rights.
2 The Bill and the motives
The bill was sent to public hearing midst October 2019. It was pressed through a special fast track procedure. This was motivated by the Minister of Refugees and Foreigners: “There is a risk that the Kurdish-controlled IS camps will collapse, which could mean that Syrian warriors with Danish citizenship will be looking for Denmark in a very short time. Therefore, legislation is needed as soon as possible.2” The reason given for reducing security of law for these Danish Citizens who are considered IS worriers was that the risk of having “terrorists”, living in Denmark – also after released from jail – is seen as extremely high.
The initiative was long ago originated by an agreement between the former government Liberal “Venstre”, supported by “Liberal Alliance”, “Conservative” and “Danish Peoples Party”. At the presentation, Venstre wrote: “It is crucial for Venstre that people who have turned Denmark back and fought against democracy and rights of freedom never should return to Denmark.3” The right wing Danish Peoples Party recommended sending suspected IS warriers in exile even if they have only one Danish citizenship, also following the administrative procedure4.
3. The legal question: The relation between Human Rights and National Law
Violation of Human Rights?
Whenever a question of this type arises the simple thing to identify is the clash between national and international law. The national bill in question is being accused of violating Human Rights as a substantial part of Danish Law. This raises two questions: According to traditional Danish conceptions, which role has International Law and Human Rights at such occasions, and how will the same question be answered in terms of judgments from international bodies?
The right to depatriate.
There is, of course, still big uncertainty of how the law is going to function. Some questions can be affirmed: The Danish government has – in terms of international law – the right to remove the Danish citizenship of a person with
another citizenship also. The ECHR has stated this clearly, according to article 8 in the European Convention7.
Suspensive effect: From verdict to decision ?
By removing the act of erasing the citizenship from criminal to administrative law it is worth looking at a detail. The right to fair trial belongs the criminal law regime. The action of removing the passport is postponed until verdict. By
moving it to administrative Danish law the question of ’suspensive effect’ changes. The decision taken is in effect; afterwards, in theory it may be dismissed but until then. That means, that a ’suspect’ changes into a person without the rights as Danish citizen. But, as long as the person has lost his rights as a citizen, he stands in practice without any administrative Danish direct legal support. Even if a socalled ’silent lawyer’ is following his or her case, he looks as administratively vanished. Case will not be presented to the person, and he has no practical opportunity to correct or contradict claims.
It seems as if it is anticipated that the distinction between criminal and administrative law is followed by ECHR article 6. If so, this is legal mistake :
In interpreting the notion of a fair trial, the Court has expressly mentioned that the principle of equality of arms is part of the broader concept of fair trial and that Article 6(1) requires a “fair balance between the parties where each party must be afforded a reasonable opportunity to present their case under conditions that do not place them at a disadvantage vis-à-vis their opponent(s)”. These two principles apply in all types of judicial proceedings irrespective of their domestic classification – whether administrative, criminal, civil or commercial.8
The meaning of the right to a fair trial does not automatically stop when moved from criminal to administrative law. The legal judgment must therefore lead to a cautious conclusion. This seems loss of rights seems out of proportion in relation to “equality of arms”.
Announcement of an administrative decision: How and when?
From when does the decision of removing the citizenship take effect? According to the new Danish law, the person is formally given four weeks to react. But this time limit counts from the point in time of the announcement, not when the persons receives the decision. According to Danish administrative legal practice, the relevant time is when the announcement is received, not when it is declared9.
However, it is another question if it is also in conflict with human rights at this point. The answer is fully compliant with that of the Danish Ombudsman’s. It is precisely pinpointed that the focus point is that of the person in focus10.
The Security of the State diminish the equality of arms principle?
In terms of Human Rights, does security of state offer a good reason to reduce ’equality of arms’? The formulation of article 6 indicates that at least some of the safeguarding regards may be ignored or reduced. However, those aspects mostly
deals with the conditions around the process, not the person at stake11.
The fact that the protection of the state’s security in the narrow legal sense can justify to some extent does not exempt us from having to assess the proportionality of legal guarantees in the form of human rights and security considerations.
This is disturbed by the veil of fog that is beyond the justifications of the law initiative. Will the Kingdom of Denmark go down because some IS Islamist fighters may return to Denmark to be accused and perhaps subsequently convicted of posing a security threat? It might seem to be a kind of political judgment; nevertheless, this information is rather latent than manifest. Has the intelligence services’ secret scare shown itself to be an invasive species that has taken over the Danish legislative process? This question flickers in the wind.
According to the principle of investigation security of arms should be seen as a guarantee leading to a fair judgment. Was the person who already lost his citizenship really an IS warrior? Was he given any opportunity to answer to accusations against him. Definitely not. So, the conclusion is that the risc of misconduct might preponder the security concerns. But we don’t even know if any platform is burning.
As the UN system and the international order is built on the anarchy of sovereign states, such dichomotization is embedded in the national and international systems.It might be looked at as a immanent unsovable phenomena. However, in a more marxian inspired context it has already been demonstrated that it is relevant to support a statement claiming that it ought to be examined whether first of all ECHR article 6 has been violated. In addition to that, if the withdrawal is seen as a punishment, article 7 is also worth noticing. If the original act of naturalization as Danish citizen was given because of his right to live with his family his right to a private and family life also should be taken account of.
4. The possible violations in a Human Rights perspective
Just following national law is no guarantee of justice.
You do not know the number of people who were executed for fan flight during World War II. … The US military judiciary distinguished itself as regards the treatment of desertions, with a general correctness and careful observance of the rule of law12.
How are human principles used? At the time of the French Revolution, they were used as justification for the political actions overthrowing power and declarations of the Republic. This should be remembered when reading Burke13, whose point was that you never should see the use of human principles separated from the actual political context. Racism14 and Humanism are central values, abstract and into a high degree excluding each other. It might be seen as conservative nationalism towards equality (ibid 4077). Arendt quotes Burke when he claims that “our liberties (are) entailed inheritance derived to us from our forefathers”15.
Almost any conflict between national law and human rights may at the same time as a tension between a governments practical exertion of power and a more abstract principle. It should be recognized that there always will be a deep gulf between human ideals and evil aspects of power. Some authors characterize Human Rights Law as ’ideological16’.
While a traditional legal approach to Human Rights tends to be more static, a historical approach will tends to by dynamic. The basic value derives from the mythology of the Antique and European philosophy. “Fraternité, egalité et liberté” means that inequality cannot be justified. In opposition to that we can identify the opposite value concerning of preserving the national state concept as shaped atthe westphalian peace in 1648. If human rights are to be seen as ideology then the inherent ethnophobia of nationalism can be conceived quite similarly.
In this way the Danish Law may be seen as a conflict between values claimed to be either universal or national. Arendt clearly seems inspired by the marxian concept of societies built on tensions between capitalist and working classes. The typical noblicity approach of the skilled bourgoisie or noble class as spokesmen for all society divides them:
“In England nationalism developed without serious attacks on the old feudal classes. This has been possible because English gentry from the seventeenth century on and in everincreasing numbers had assimilated the higher ranks of the bourgeoisie so that sometimes even the common man could attain the position of a lord.” 17
Arendt’s approach directs us away from the global common aspects of human rights to the nature of modern western countries’ class character. In the same chapter, she claims:”…. an ideological basis from which the English received its curious touch of race-feeling ever since the French Revolution”18.
In a Danish context, this can be seen by analogy. The role of the government and the political systems claims of its’ spokesmen to be to protect the people (and the contract between people and regime) against daemonic dangers so that everyone can feel secure and sleep well at night. But security means both a feeling of fear and countermeasures to protect against dangers. If the two regards are unbalanced, both will lose. In this case it should be investigated further if the whole threat is just a chimera.
ARENDT, Hannah: “The Origins of Totalitarianism”, E-book. Harvest, London.Kindle edition
BURKE, E: “Reflections on the Revolution in France”:
ENZENSBERGER, Hans Magnus: “Politik og Forbrydelse” Gyldendal København, 1966
European Convention of Human Rights, downloadable January 17 2020 from: https://www.echr.coe.int/Documents/Convention_ENG.pdf
European Convention on the Reduction of Statelessness 1961 This convention text can be downloaded from: https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=V-4&chapter=5
European Court: Dismissal of a case: https://www.echr.coe.int/Documents/FS_Citizenship_Deprivation_ENG.pdf
LOV om ændring af lov om dansk indfødsret og udlændingeloven:
https://www.ft.dk/samling/20191/lovforslag/L38/som_vedtaget.htm Downloaded 16th of January 2020
Ombudsman: The Danish Ombudsman, FOB 1990.240
Presentation statement at the Danish Folketing: Venstres comment on the presentation statement (p 2). The statement (Danish) can be fetched here. :https://www.retsinformation.dk/Forms/R0710.aspx?id=210766
SHAW, Malcolm N: International Law, 7. ed., Cambridge, Cambridge University Press 2014
TESFAYE, M: Presentation for the Danish Parliament (Folketinget) Speech at the Folketing October 22 2019. Can be downloaded from https://www.ft.dk/samling/20191/lovforslag/l38/20191_l38_fremsaettelsestale.htm
ZRVANDIAN, Arman: “Casebook on European Fair Trial Standards in Administrative Justice, Council of Europe 2016
1Lov om ændring af Lov om ændring af Lov om dansk indfødsret og udlændingeloven, https://www.ft.dk/samling/20191/lovforslag/L38/som_vedtaget.htm
2TESFAYE, M: Presentation for the Danish Parliament (Folketinget) Speech at the Folketing October 22 2019. Can be downloaded from https://www.ft.dk/samling/20191/lovforslag/l38/20191_l38_fremsaettelsestale.htm
3Venstres comment on the presentation statement (p 2). The statement (Danish) can be fetched here. :https://www.retsinformation.dk/Forms/R0710.aspx?id=210766
4Ibid, ( p 2)
5European Convention of Human Rights, downloadable January 17 2020 from: https://www.echr.coe.int/Documents/Convention_ENG.pdf
6This convention text can be downloaded from: https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=V-4&chapter=5
7A person had deprived his British Citizenship and tried to open a process at ECHR. The court rejected. Download the document from here: ( p2 ) https://www.echr.coe.int/Documents/FS_Citizenship_Deprivation_ENG.pdf
8ZRVANDIAN, Arman: “Casebook on European Fair Trial Standards in Administrative Justice, Council of Europe 2016, p 85
9The Danish Ombudsman, FOB 1990.240.
10ZRVANDIAN, Arman: “Casebook on European Fair Trial Standards in Administrative Justice, Council of Europe 2016, p 69
11ZRVANDIAN, Arman: Casebook on European Fair Trial Standards in Administrative Justice, Council of Europe 2016, p 13
12ENZENSBERGER, Hans Magnus: “Forbrydelse og Straf, Gyldendal 1961 195 f. Translated first from German to Danish. Here, in English by the author.
13BURKE, E: “Reflections on the Revolution in France”: “they therefore take up, one day, the most violent and stretched prerogative, and another time the wildest democratic ideas of freedom, and pass from the one to the other without any sort of regard to cause, to person, or to party.
14ARENDT, Hannah: “The Origins of Totalitarianism”, E-book. Harvest, London.Kindle location 4072 – 77
15Ibid, loc. 4085 .
16SHAW, Malcolm N: International Law, 7. ed., Cambridge, Cambridge University Press 2014 196 f.
17ARENDT, Hannah: “The Origins of Totalitarianism” Harcourt London 3. Totalitarianism loc 4092