European Citizenship: Between Liberalism & Racialization

Citizenship is the status of belonging bestowed by states; it is the capacity states have to “bind” as well as “unbind” individuals (Butler and Spivak Reference Butler and Spivak2010, 4–5). Citizenship is a foundational right, the right required for the enjoyment of all other rights recognized and protected by liberal welfare states. Citizenship is considered a meta right (Bauböck and Paskalev Reference Bauböck and Paskalev2015), i.e., the right that one needs “to have rights” (Arendt 1951/1973), and a critical element of identity. Citizenship is therefore both a legal category and a social identity. It is also one of the few areas of state practice still allocated to sovereign state control; states decide how to recognize (or revoke) citizenship, with minimal constraints applied through international obligations.

Citizenship scholars point to the Holocaust as the seminal event in modern European legal consciousness (Gosewinkel Reference Gosewinkel2021). In that telling, Germany’s racialization of citizenship through its determination that Jews could not be German eventually led to their mass murder (Arendt Reference Arendt2006). This process was gradual: first Jews were made lesser citizens in Germany, enjoying fewer rights (no state employment; property confiscation) (Hilberg Reference Hilberg1961/Reference Hilberg2003). Then their citizenship itself was revoked. This made flight impossible, because one must have citizenship to cross the borders to another state and be recognized. Once trapped in Germany, annihilation became state policy, following from a lack of alternative solutions.

For most of the last 70 years, the Holocaust’s central lesson has been represented as one of a public sphere built on rights and secular liberalism (Habermas Reference Habermas1999).Footnote ⁵ This sphere rejects racialized categories of belonging as illiberal. From the ashes of Europe’s self-destruction, the story goes, arose a liberal, rule of law order (Kundnani Reference Kundnani2023; Snyder Reference Snyder2019). Law is central to this telling, and one of its roles is to guarantee fundamental rights. Among these rights is a right to not face state-generated discrimination based on “immutable characteristics,” those elements of personhood that one either cannot, or should not be asked to, alter. These include race, gender, sexual preference, religion, and age. Each category enjoys its own ECtHR jurisprudence.

In post-war Europe, supranational institutions such as the progenitor organizations of the European Union as well as the Council of Europe grew themselves around law (Vauchez Reference Vauchez2014; Weiler Reference Weiler1991). The courts serving these institutions, the European Court of Justice (later Court of Justice of the European Union, (CJEU)), and ECtHR ordered their member states to do or not do things and were obeyed. Those courts interpreted law through which they set policy (Shapiro and Stone-Sweet Reference Shapiro and Stone-Sweet2002). For decades, supranational courts have set the agenda for the integration of Europe both in trade and in values. Conventions such as that of 1961 against statelessness (discussed below) and the 1969 International Convention on the Elimination of All Forms of Racial Discrimination (CERD) affirmed European states’ commitment to liberal, rule of law values, one of which was an express rejection of racialization.

Decades of rule-making regarding citizenship and rights enacted in the shadow of the Holocaust’s central lesson, which is that without citizenship no rights are protectable, have failed to resolve the conflict dogging the liberal international order and the EU. This is a question set out by Hannah Arendt in 1951, when she queried, in her critique of supranational rights conventions, “What happens at the moment in which nationalism takes over a given nation-state—rule of law is suspended and minorities are deported or disenfranchised or, indeed, sent off to be annihilated” (Arendt Reference Arendt1973)? The question is rearticulated by Judith Butler in 2010, when she asks, “Are there modes of belonging that can be rigorously non-nationalist?”(Butler and Spivak Reference Butler and Spivak2010, 49). The answer is that international legal frameworks are designed to address these questions by providing a constraint against nationalist political expediency (Carlson Reference Carlson2022). In an age of populism and pushback, however, the constraining role international legal frameworks might play is more careful to not challenge national interests (Madsen et al. Reference Madsen, Cebulak and Wiebusch2018).

Moreover, the narrative of Europe schooled and changed by the Holocaust avoids addressing colonialism and its significant role in Europe’s construction (Arendt Reference Arendt1973; Bancel, Blanchard, and Vergès Reference Bancel, Blanchard and Vergès2003; Garavini Reference Garavini2012). It erases the central role that law played in constructing and maintaining colonial relations (Anghie Reference Anghie2006; Saito Reference Saito2020), including who and how people migrate (Saito Reference Saito2023). Finally, it invites us to overlook the persistent presence of colonial logics, practices, and ways of knowing in contemporary European culture and politics (Kundnani Reference Kundnani2023; Mohamedou Reference Mohamedou2018; Sayyid Reference Sayyid2022; Sierp Reference Sierp2020). These colonial logics are themselves racialized. Racialization is the process of constructing a group as “real, different and unequal in ways that matter to economic, political and social life” (Hoyt Reference Hoyt2016). Charles Mills’ seminal The Racial Contract (Reference Mills1997) analyzes racialization as a foundational political process that constructs “white” and “non-white” identities to maintain systemic white supremacy. Mills argues that this “racial contract” overrides the social contract, forming an omnipresent tacit agreement that reserves moral and political standing for white people and relegates non-whites to sub-personhood. This racialized hierarchy is not merely ideological but is embedded in the political, economic, and institutional fabric of the modern world.

Thus, although liberal states reject racialized constructions of citizenship, scholarship demonstrates how race continues to play a significant role in how citizenship is conceptualized and practiced in liberal states (Balibar and Wallerstein Reference Balibar and Wallerstein1991; Mills Reference Mills1997). While law is often posited as a neutral, non-racialized space, decades of scholarship contravene law’s purported capacity to neutralize the racialized positions of those who enact, apply, and benefit from it (El-Enany Reference El-Enany2020; Fine and Lindemann Reference Fine and Lindemann2024; Kundnani Reference Kundnani2023; Williams Reference Williams1995, Reference Williams2024). In Denmark, “Danishness” is racialized and excludes Muslims. This leads to a society where personages no less than the queen assert that being born in and growing up in Denmark doesn’t necessarily make you Danish (Larsen Reference Larsen2020).

The Johansen Case: Challenging CoE Articulated Rights

Between 2012 and the fall of the Islamic State’s (IS) self-styled caliphate, it is estimated that more than 40,000 “foreign fighters” traveled to the Levant to fight for IS, including approximately 6000 Europeans, of whom approximately 200 were Danes. One of these was Adam Johansen. Johansen was a Danish citizen born in the Faroe Islands (part of the Kingdom of Denmark) to a Danish mother and a Tunisian father. Through his mother, Johansen was Danish at birth.Footnote ¹⁶ In 2013, following the outbreak of civil war in Syria, Johansen traveled to Syria. Although he maintained that his goal was to assist in local charities, a Danish court eventually found that he had traveled with the goal of joining IS.Footnote ¹⁷ He returned to Denmark in February 2014, for a total of five months spent in Syria. He was not arrested or questioned by Danish authorities upon his return.

In spring 2016, Johansen’s name appeared on a terror list produced by the U.S. government and passed to the Danish security services.Footnote ¹⁸ Upon receipt of this list, Johansen was arrested in Denmark, and proceedings were brought against him. In October 2017, the district court found him guilty of participating in terror and sentenced him to 4 years’ jail.Footnote ¹⁹ During these proceedings, the prosecutor also sought revocation of Johansen’s Danish citizenship. Citizenship revocation, which is imagined by Danish law,Footnote ²⁰ is only possible in cases where a citizen enjoys multiple citizenships. This is because Denmark, similar to all European countries, is a signatory to the 1961 Convention on the Prevention of Statelessness. As discussed above, this international obligation precludes states from removing citizenship if such removal would render the subject stateless. In Johansen’s case, the prosecutor argued, Johansen’s Tunisian citizenship permitted the application of Danish law, imagining citizenship revocation in connection with conviction for serious crimes, such as terrorism.Footnote ²¹

Although the district court found unanimously that Johansen was guilty of terror, a majority of the court (10 votes against 2)Footnote ²² determined that Johansen’s Danish citizenship should not be revoked. To make this determination, the court first recognized that it was possible to contemplate citizenship revocation because this would not make Johansen stateless due to his dual citizenships. The court further recognized that the four-year sentence it had passed recognized Johansen’s crime as the sort of serious crime for which citizenship revocation must be considered, following Danish law.Footnote ²³ Interpreting the ECHR, the court noted that citizenship revocation decisions require a determination regarding “the significance of the revocation for the person concerned.”Footnote ²⁴ The court noted that Johansen had connections both to Denmark and Tunisia, but that Johansen’s connection to Denmark was “predominant.”Footnote ²⁵

The prosecutor appealed, and the appeals court upheld the judgment, 4 votes to 2.Footnote ²⁶ The prosecutor then petitioned the Danish Supreme Court solely on the question of citizenship revocation; this appeal was granted.Footnote ²⁷ In 2018, the Danish Supreme Court overturned the courts of first and second instance, deciding unanimously to revoke Johansen’s citizenship in connection with his terror conviction.

Like the district court, the central question facing the Danish Supreme Court concerned the impact that citizenship revocation would have for Johansen. To make this evaluation, the Danish Supreme Court applied a balancing test, weighing Johansen’s connection to Denmark against his connection to Tunisia. The Danish Supreme Court determined that Johansen’s practice of Islam tied him conclusively to Tunisia, stating:

Thus, for the Danish Supreme Court, Johansen’s Muslim faith was determinative of connection, tying him to Tunisian “culture and ways.” Given that Muslim identity is not simply associated with religion but also racial/ethnic identity (Amiraux Reference Amiraux, Beauchesne and Akbarzadeh2021; Choudhury Reference Choudhury2022), we should understand the Danish court’s discussion of Johansen’s religious identity as a proxy for race.

The Danish Supreme Court engaged in a balancing test regarding connection because this is how it read the requirements of Article 8 of the ECHR, which recognizes a right to private and family life. There are several flaws in the Danish Supreme Court’s interpretation, however. First, Article 8 jurisprudence examining connection evaluates connectedness for non-citizens. Article 8’s protections to family and private life are designed to recognize the rights of non-citizens living in CoE countries to protect them from expulsion. Article 8 had not, prior to Johansen’s appeal to the ECtHR, been applied to citizens of CoE countries to examine their connectedness to their countries. This is likely because citizenship itself is a litmus of connectedness.

Second, use of religious practice to construct a connectedness tie that would tip the balancing test in favor of greater belonging to Tunisia than Denmark is irregular and not in keeping with ECtHR Article 8 jurisprudence. This jurisprudence considers facts that hew closely to an individual’s living situations in their countries of residence, including how long they have lived there, whether they have taken an education there and/or are working there, and what their family connections in the country at issue are (marriage, children). Article 8 jurisprudence does not inquire into religious practices or make religious practices synonymous with belonging.

Given this jurisprudence, it was legally surprising that when Johansen brought a case against Denmark to the ECtHR, that court unanimously found for Denmark.Footnote ²⁹ In its decision, the ECtHR concurred with the Danish Supreme Court regarding Johansen’s connectedness to both Denmark and Tunisia. The ECtHR referred to Johansen as a “migrant”Footnote ³⁰ and did not challenge Denmark’s application of a balancing test designed to weigh state sovereignty/citizenship rights against the human rights of resident non-citizens (the purpose of Article 8). Instead, it generated a new balancing test for the legitimacy of citizenship deprivation for natural citizens: (1) arbitrariness and (2) the consequences to the defendant.

As regards arbitrariness, the ECtHR examines three factors: whether a decision is made in accordance with the law; whether there were procedural safeguards; and whether authorities acted swiftly and diligently.Footnote ³¹ Because citizenship revocation is imagined by Section 8b of the Danish Nationality Act, the ECtHR found that Johansen’s revocation was “in accordance with the law.”Footnote ³² The two-year period between Johansen’s arrest and his final conviction answered the “speed and diligence” categories.Footnote ³³ And because Johansen “had the opportunity to contest prosecuting authorities’ revocation of citizenship at three levels of jurisdiction,” procedural safeguards were found to be met.Footnote ³⁴ Thus, the ECtHR determined that Johansen’s revocation was not “arbitrary.”

This is a deeply problematic criterion for a human rights court to apply, however, because it takes as its starting point that laws are legal and should be applied, whereas the question before a human rights court is always a normative (constitutional) question: should the law at issue be understood as legal? This question has perhaps most famously been applied in relation to Nazi laws, which were legal under National Socialism but illegitimate, unjust, and illegal when viewed through a human rights frame (Fraenkel et al. Reference Fraenkel, Shills, Meierhenrich, Ernst Fraenkel and Meierhenrich2017; Radbruch Reference Radbruch1946/Reference Radbruch2006). The experience under National Socialism and the structured (il)legality of the Nazi state provided the impetus for the human rights regime that emerged from the Second World War, including the CoE. Thus, this procedural querying on the part of the ECtHR in relation to Denmark’s treatment of Johansen sidesteps its role as a check on Danish legal constructions.

The ECtHR’s examination regarding consequences to the defendant is even more pretextual than its arbitrariness investigation. Here, the ECtHR rejected the possibility of any sort of balancing test to understand how consequences should be weighed, opting instead for a question of the diligence by which the Danish court had considered consequences.

The ECtHR concluded it was “satisfied that the Supreme Court diligently addressed the consequences of depriving the applicant of his Danish citizenship” (emphasis added).Footnote ³⁵ Here, the ECtHR effectively substituted “diligence” for “consequence,” therefore performing an even more superficial review of the Danish courts’ rationale than under the arbitrariness test. Nothing could be more consequential to an individual than being permanently banished from their country of origin. The ECtHR does not address the substance of this consequence at all.

Additionally, Johansen v. Denmark appears to add three new categories for consideration: seriousness of the crime, the defendant’s responsibility for their personal choices, and the defendant’s “attachment” to the state. The first two categories the ECtHR laid out as additions to the arbitrariness standard. After setting out the standard and arguments in relation to it, the Court additionally noted that “the revocation of the applicant’s Danish citizenship was the consequence of his conviction of a very serious terror crime …. The deprivation of his Danish nationality complained of was thus to a large extent a result of the applicant’s own choices and actions…” (emphasis added).Footnote ³⁶ As noted above, these are new categories that have not featured in ECtHR jurisprudence previously. They seem designed to permit the Court flexibility in considering future cases involving states’ treatment of citizens facing criminal charges. Almost any act triggering criminal law will, by its nature, be “serious,” and almost all defendants will have arrived at the act through their own personal choices. This appears to be a place marker for future determinations in favor of states taken to the ECtHR by their citizens.

The third new category, “attachment,” appears in the ECtHR’s discussion applying its “consequence” standard. Here, the Court stated that the defendant’s conviction of serious terrorist offenses, “which themselves constituted a serious threat to human rights, and which to a large extent showed his lack of attachment to Denmark and its values,”Footnote ³⁷ contributed to the ECtHR’s consideration of the consequences of citizenship revocation for the defendant.

Finally, the ECtHR noted in its Johansen decision that it “has underlined on numerous occasions [that] terrorist violence, in itself, constitutes a grave threat to human rights. Accordingly, the Court considers it legitimate for Contracting States to take a firm stand against those who contribute to terrorist acts, which it cannot condone in any circumstances…”.Footnote ³⁸ As with the categories discussed above, this catch-all serves to indicate that the ECtHR does not see its role as a constraining influence on government overreach as regards terror laws.

By focusing superficially on process, the ECtHR avoids looking inside Danish jurisprudence. It conflates the presence of a law (in this case, Section 8b of the Danish Nationality Act, which allows citizenship revocation) with a legal analysis regarding what constitutes being in accordance with the law. It is this latter standard that allows lawmakers to recognize what Radbruch (Reference Radbruch1946/Reference Radbruch2006) labeled “statutory lawlessness,” i.e., laws that cannot be legal because of their rights-violating content.Footnote ³⁹ The ECtHR’s analysis in Johansen v Denmark skirts the very question it is being asked to decide by articulating a standard that determines that the presence of a law makes that law lawful.

Racializating Citizenship Revocation

Across Europe, the death penalty has been abolished and even life imprisonment is rare and discouraged.Footnote ⁴⁰ In the absence of the death penalty, citizenship revocation is the ultimate penalty criminal law can deliver. Because citizenship is considered a meta right and a critical element of identity (Appiah Reference Appiah2005; Balibar and Swenson Reference Balibar and Swenson2003; Habermas Reference Habermas1998; Taylor et al. Reference Taylor, Appiah, Habermas, Rockefeller, Walzer and Wolf1994), its removal is a kind of civic death. Scholarship reveals that all citizens are damaged by weakening the citizenship protections of a few (Bauböck Reference Bauböck and Bauböck2019; Bolhuis and Wijk Reference Bolhuis and van Wijk2020; Macklin Reference Macklin and Rainer2018; Serdar Reference Serdar2017).

Citizenship revocation also seems counterintuitive to the rationale under which liberal states enact criminal law. Criminal law is partially legitimized through its capacity to define community (Cotterrell Reference Cotterrell1995; Durkheim Reference Durkheim1972; Garland Reference Garland2002; Hart Reference Hart2008). It is criminal law’s communicative function that legitimizes criminal law in liberal states (Duff Reference Duff2001). No communication is possible with a removed citizen, however.

Finally, citizenship revocation is only available, due to requirements regarding avoiding statelessness, in relation to individuals with more than one citizenship. In liberal, rights-based states, criminal law, which discriminates between like citizens based on immutable traits like race or religion, is understood as contrary to liberal governance (Duff Reference Duff2001; Hart Reference Hart2008; Lacey Reference Lacey2016). Dual citizenship, a legal recognition of multiculturalism, represents the sort of immutable trait that cannot legitimately be targeted by states. Thus, for reasons of harshness, purpose, and recognized rights protection, citizenship removal challenges liberalism’s rights and governance rationales.

In fact, citizenship revocation for crime is not permitted in other Nordic countries, and the practice has been condemned by the Council of Europe, which has called on member states to not employ it (Council of Europe 2019). Regardless, Adam Johansen is but one of several dozen Europeans who have seen their European citizenship revoked in connection to terror crimes (Bolhuis and Wijk Reference Bolhuis and van Wijk2020). This is because citizenship revocation is one of the methods European (and other) states have developed to cut ties with their foreign fighter nationals (Choudhury Reference Choudhury2017; Mantu, Halliday, and Grütters Reference Mantu, Halliday and Grütters2021; Naqvi Reference Naqvi2022).

Foreign Fighters on Trial: Developing Citizenship Revocation Practices

We see a logic of racialized belonging play out repeatedly in criminal law cases related to foreign fighters. For example, in the cases of Enes CiftiFootnote ⁴¹ and Anas LarabaFootnote ⁴² , two Danish-born defendants who enjoyed only minimal ties to their second-nationality countries were stripped of their Danish passports in conjunction with short criminal sentences for terror-related activity.

In both cases, courts balanced the ties defendants enjoyed with Denmark, their country of natural citizenship, against ties to countries of inherited citizenship. In both cases, the ties to their natural citizenship as measured in the dimensions that have been articulated by the ECtHR—family, language, and life experience—were found to be “strong.” Danish courts then examined defendants’ ties to their countries of inherited citizenship and, finding some, determined the ties were “not insignificant”Footnote ⁴³ and that therefore deportation to the country of inherited citizenship would not constitute a “disproportionate intervention.”Footnote ⁴⁴

Citing these ties, the Danish Supreme Court citizenship revocation and deportation would not constitute “a disproportionate intervention” in the defendant’s life.

In Laraba’s case, finalized the following month by an appeals court, the court found the defendant possessed “some connection” to his inherited citizenship in Algeria because:

Based on this rationale, quoted in its entirety, the court concluded Laraba was “not without preconditions for establishing a life in Algeria.” Beyond the obvious paucity of actual connection (a few vacation trips; a few words of Arabic), the court’s language is significant in how far it departs from the ECtHR’s previously developed conceptions of “connectedness.” ECtHR connectedness jurisprudence measures actual, contemporary connectedness, not speculative or possible connectedness. Speculation regarding possible life outcomes, as well as “Muslim country” as a stand-in for connectedness to a particular country, both factor prominently in the Danish Supreme Court’s Johansen decision.

Finally, there is one more judicial element introduced in the Laraba judgment that is eventually reflected in the ECtHR’s Johansen decision, and that is the notion of “the seriousness of the crime.” This concept appears to enable and even require the boundary-breaking work the Danish court performed. Here, the court found:

In other words, Denmark’s international obligations under Article 8 regarding a right to family life were transformed via the Laraba judgment to consist not as a balancing test between two possible sites of meaningful connection but rather as a balancing test between connection to Denmark and seriousness of the crime. This rationale challenges the substance and application of Article 8 and invokes 19^th-century conceptions of banishment as appropriate criminal law responses.

Danish case law has further developed in this direction. For example, an appeals court in 2019 upheld a 2018 decision to remove Danish citizenship for defendants who had unsuccessfully attempted to travel to Syria (three made it to Turkey; the fourth never left Denmark). The court reported that based on the “seriousness of their crimes,” those defendants eligible for citizenship revocation had their Danish citizenship stripped, in addition to receiving a three-year jail sentence. The court reported that it did this “regardless of their connection to Denmark.”Footnote ⁴⁷ With this rationale, we see the finalization of a division between Danish human rights obligations under Article 8 and Danish terror law jurisprudence.

“Seriousness of the crime” language opens the possibility for citizenship revocation to apply beyond terror, and this is precisely what is happening in Denmark at present. Citizenship revocation has now been extended to cover gang-related crime, although at the time of writing, no court decisions have applied this legislative possibility.Footnote ⁴⁸

This critique forms part of a larger critique made of terror law as illiberal due to the ways in which it challenges liberal processes. Critical terror law scholars assert that modern European terror law practices violate core rights assured to citizens in a liberal state (Abu-Bakare Reference Abu-Bakare2022; Bigo and Tsoukala Reference Bigo, Anastassia, Bigo and Tsoukala2008). For example, scholars have documented how a focus on security through prevention has criminalized “pre-crime” (Ginsburg Reference Ginsburg, Arianna and Kim2021; Zedner Reference Zedner2007). This represents a conceptual challenge to the presumption of innocence, as it literally allows guilt to predate a committed crime (Garapon and Rosenfeld Reference Garapon and Rosenfeld2016). Criminologist Elies Van Sliedregt (Reference Sliedregt2009) has shown how Blackstone’s (1765–1769) famous rendition of the presumption of innocence, “it is better that ten guilty persons escape than that one innocent suffer,” is deliberately rejected in policies related to terrorism. This is because terror law’s prevention paradigm is built on forward-looking risk assessment rather than backward-looking retribution (Ashworth and Zedner Reference Ashworth and Zedner2015).