Rikar Hussein, Ghita Intan, Washington/Jakarta – A recent decision by the government in Jakarta not to repatriate hundreds of its citizens suspected of membership in the Islamic State (IS) terror group has set off a debate over the fate of the Indonesians, with some experts warning it could become an international dilemma if their citizenship is revoked.
Indonesian officials in the past reported that there were 689 former IS Indonesians detained mainly in northeast Syria, Turkey and Afghanistan. However, the country's Ministry of Law and Human Rights earlier this week said the number was as high as 1,276.
President Joko Widodo on Feb. 12 said his government was no longer responsible for them "because it was their decision" to abandon their country to join IS. A day later, the presidential chief of staff, Moeldoko, told media the former IS members were considered stateless – people who have lost their nationality "automatically" without having to go through the country's legal procedures.
Rising threat of statelessness
Citizenship and international law experts said Jakarta's decision not to take home its citizens adds more complication to a rising threat of statelessness that is facing thousands of IS fighters and their families.
"There are serious global implications of states adopting citizenship deprivation laws, or temporary or permanent exclusion orders or practices, to deal with foreign fighters," said Michelle Foster, the director of Peter McMullin Center on Statelessness at Melbourne Law School in Victoria, Australia.
By refusing to take home their citizens, countries like Indonesia are essentially transferring the problem to other countries, Foster said.
"Indonesia has ratified the International Covenant on Civil and Political Rights, which protects the right of everyone to return to his or her own country," she said. "Hence, if Indonesia prevents foreign fighters from returning, whether or not they retain Indonesian citizenship, it may be in breach of its obligations under this treaty."
The United Nations considers a person who lacks nationality of any country as stateless. About 10 million people around the world are believed to be stateless, most of them minorities residing in different countries.
The U.N.'s 1961 Convention on the Reduction of Statelessness is the main instrument setting rules for citizenship withdrawal and the rights of stateless people. Other than in limited circumstances, the treaty prohibits deprivation of nationality that could result in statelessness. Indonesia has not ratified that treaty, however.
Indonesia is not the first country to deny the return of its citizens accused of IS membership.
In northeastern Syria, the U.S.-backed Syrian Democratic Forces have held nearly 2,000 foreign IS jihadists, as well as thousands of their wives and children from about 40 countries. Kurdish authorities have complained their facilities are overwhelmed and criticized those countries for refusing to repatriate their nationals.
Citizenship revocation of former IS members has been particularly controversial among the European countries, which, according to U.S. officials, have an estimated 800 of their nationals held in Syria. The British government last year stripped the citizenship of a Briton, Shamima Begum, who left the U.K. to join IS in Syria when she was 15 years old. Germany and Denmark later in 2019 enacted laws that allowed revoking the citizenship of their dual nationals who have fought with IS.
In the U.S., where American officials have repeatedly asked European Union allies to take responsibility for their IS citizens, a federal judge last November ruled that Hoda Muthana, a New Jersey-born woman who joined IS in Syria in 2014, was no longer an American citizen.
Watchdog organizations say the detained foreign fighters and their family members live in dire conditions, with children reportedly dying from preventable diseases. Additionally, those organizations warn that the detention facilities are at risk of IS prison break attempts. They say efforts by local authorities to try the foreigners are likely to fail as they lack legal infrastructure to ensure fair trails.
"All persons most responsible for the most serious crimes, including war crimes and crimes against humanity, should be prosecuted in a fair trial," Clive Baldwin, a senior legal adviser at Human Rights Watch, told VOA. He added that all countries should ensure their nationals can return home.
Indonesian officials said their decision to strip the citizenship of the former IS members is based on the country's citizenship law enacted in 2006. The law said a person can voluntarily relinquish his or her citizenship or could lose it in cases such as voluntarily pledging allegiance to a foreign country.
Law experts said joining IS is not considered voluntary allegiance to a foreign entity because the group is an illegal terrorist organization. However, the experts are divided on whether the former IS members chose to end their Indonesian nationality by traveling to Syria.
Hikmahanto Juwana, an international law expert at the University of Indonesia in Depok, told VOA Indonesian that authorities were likely to invoke the country's Government Regulation No. 2 of 2007, regarding citizenship to deal with ex-IS members. If the government uses that law, "in my opinion, they (former IS members) automatically lose their citizenship," Juwana said.
However, this interpretation has been challenged by other Indonesian legal experts, particularly those concerned about the fate of IS children.
Susanto, the head of Indonesian Child Protection Commission, told VOA that Jakarta was required by Law No. 25 of 2014 to give special protection to children victimized by terrorist networks.
She said the government was to ensure the children maintained their citizenship, while at the same time providing them with education and deradicalization programs.
Indonesian officials have not disclosed the number of children among the former IS Indonesians at risk of losing their citizenship. However, they have announced that the decision to abandon IS members excluded children younger than 10.
Some international law experts said it is difficult for countries to justify depriving the families of the IS foreign fighters, particularly children who are protected by the Convention on the Rights of the Child, to which Indonesia is a party. The convention defines children as "every human being below the age of 18 years unless, under the law applicable, majority is attained earlier."
"Wives and children should not lose their nationality on account of the actions of their husbands or fathers," said Brad Blitz, a professor of international politics and policy at the UCL Institute of Education at University College London.
"Given that protracted displacement is a fact for millions of refugees, and that in many refugee hosting states there is no opportunity for integration, it is highly likely that the women and children affected will spend many years in camplike settings," Blitz said.
Khairul Ghazali, an Indonesian former extremist, said the government decision to keep the former IS fighters and their families abroad was unlikely to eliminate the direct threat they pose to Indonesia. Regardless of the decision, the fighters could still reach back home and inspire militant activities.
Ghazali was arrested in 2010 in relation to a bank robbery and recruitment for an al-Qaida-linked organization. He has since denounced jihadist groups and dedicated his work to deradicalization among young people.
"The government has instruments including the TNI [Indonesian military], Polri [the national police], Densus 88 [special anti-terror force], and the National Agency and Counter Terrorism (BNPT) which is the front line in eradicating terrorism. When there is an act of terror, there are laws on terrorism," he told VOA, adding that Jakarta will be safer by taking the former fighters home.
[Anugrah Andriansyah contributed to this story from Medan, North Sumatera.]