Dueling Nationalities: Dual Citizenship, Dominant & Effective Nationality, and the Case of Anwar Al-Aulaqi
60 Pages Posted: 10 Oct 2011 Last revised: 4 Apr 2012
Date Written: October 6, 2011
The U.S. government ended a two-year manhunt in September 2011 when armed drones operated by the Central Intelligence Agency “crossed into northern Yemen and unleashed a barrage of Hellfire missiles” at a car carrying, among others, Anwar al-Aulaqi (also spelled “al-Awlaki”) – a dual U.S.-Yemeni citizen. Formerly a moderately religious Muslim, al-Aulaqi had become a leader for radical Muslims abroad over the past decade, inspiring jihadist attacks against the West and playing an increasing role in the operations and planning of attacks by al Qaeda’s affiliate organization based in Yemen. Al-Aulaqi’s death made waves among news media, politicians, and law professors, sparking national debate over the legality of killing an individual with American citizenship. For its part, the Obama Administration defended the strike, claiming that an internal review – involving senior lawyers from across the administration – determined that the killing of al-Aulaqi was legal.
Customary international law has long recognized the anomaly of dual citizenship. In doing so, however, international tribunals have been faced with problems that arise when an individual’s dual set of rights or dual set of duties conflict. To deal with these legal difficulties, customary international law precedent dictates that when hearing a case in which an individual’s citizenship has bearing either on jurisdiction to hear the case or on the merits of the claim itself, a tribunal must first determine, as a threshold matter, the individual’s “dominant and effective” nationality.
Building on a long line of precedent from international arbitration claims tribunals, this Paper argues that when hearing a case involving a suspected terrorist who holds dual citizenship (as was the case with al-Aulaqi, would-be Times Square bomber Faisal Shahzad, and others), a domestic court should first determine, as a threshold matter, the dominant and effective nationality of the accused. This determination is significant because a dominant foreign national can essentially be treated as a non-citizen, for the purposes of adjudication, and may not be entitled to the full rights and protections of domestic citizenship. This Paper looks at the al-Aulaqi affair as an illustrative case study, applying the doctrine to determine al-Aulaqi’s dominant and effective nationality.
Further, this Paper argues that even beyond al-Aulaqi’s case, the doctrine of dominant and effective nationality could prove valuable to the United States in its continued fight against terrorism. This Paper also includes a brief discussion on the legality of targeted killing under international law, more generally.
Keywords: Yemen, Shahzad, al-Aulaqi, Aulaqi, al-Awlaki, Awlaki, dual nationality, citizenship, targeted killing, terrorist, drone, dominant and effective nationality, war on terror, counterterrorism, drone, drones
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