Between statelessness and citizenship - legal identity under insurgencies and unrecognised states

March 2024

In this blog post, co-editors Marika Sosnowski and Bart Klem, with master reviewer Marnie Lloydd, reflect on the outcomes of a recently published Citizenship Studies special issue on legal identity under insurgencies and unrecognised states. They argue that many of the existing binaries we use to demarcate our world are ill-equipped to address the lived realities that ensue from and in contested states. Legal identity is often better understood as a contingent claim rather than a firm status. Citizenship and statelessness are often a matter of kind and degree rather than all or nothing.

In 2017, while doing fieldwork in Jordan, Marika Sosnowski was speaking to a Syrian who had set up local councils in the south of the country while it was under the control of armed rebel groups who were attempting to topple the government of President Bashar al-Assad. In an offhand comment, the Syrian mentioned that the local council had been issuing life-cycle documents like birth, death and marriage certificates to the people living in the area they controlled. This chance encounter spurred another seven years’ work on this topic, funded by two rounds of seed funding from the Peter McMullin Centre on Statelessness and the Swedish Research Council, asking a range of questions regarding the nature of legal identity conferred by insurgencies and unrecognised states.

One of the outcomes of this research is the recent publication of the March 2024 special issue of the journal Citizenship Studies. Across 12 articles by 16 authors, from academic, policy and practitioner perspectives, this special issue explores the political, legal and anthropological implications of legal identity, and legal identity documents, created by entities that are seen by the international community and by international law, to varying degrees, to be illegitimate and illegal. However, the reality is that for people living within the boundaries of these types of entities, life does not pause – children continue to be born, people die, marry and divorce – and these life events need to be documented for practical as well as legal reasons under human rights law.

The phenomenon of legal identity documents issued by insurgencies or unrecognised states is less exceptional than one might think. In 2023, the ICRC estimated that at least 195 million people live in areas controlled by armed groups and that the majority of these groups provide a degree of de facto governance and public services. Or, as Atharv Dhiman and Imke Harbers explain in their contribution to the special issue on birth registration, legal identity can even be compromised in a fully recognised state such as India under conditions of armed conflict.

In her Afterword to the special issue, Marnie Lloydd utilises Jo Randerson’s suggestion that sometimes a useful way to look at the world is like a jester. Marnie writes that in thinking like a jester, we are ‘freed to be vulnerable, asking the stupid questions that everyone is thinking but not daring to say out loud’. One way all the contributions to the special issue ‘think like a jester’ is to question the underpinnings of the contemporary system of nation-states. Studying legal identity under insurgencies and unrecognised states challenges the idea that it is the State which has the sole ability to create legal identity. Citizens of insurgent states are caught somewhere between the binaries of statelessness and citizenship – they exist in a (often) precarious, liminal space brought about by the lack of full recognition of the entity granting their legal identity.

In the special issue Andrea Marilyn Pragashini Immanuel explores this seeming absurdity through the case of Western Sahara and the legal usefulness of documents issued by the Polisario Front in conferring nationality; Jenny Hedström looks at mass wedding ceremonies and their associated marriage documents to examine how it is not only documents but practices which can be used to bolster and reinforce the idea of Wungpang Mungdan - or the Kachinland nation in northern Myanmar; William Grant-Brook tentatively suggests that legal identity documents are being strategically used by the insurgent group Hayat Tahrir al-Sham in Syria to present itself “as if” it were a State; Ramesh Ganohariti looks at three more established but still not fully recognised states – Abkhazia, South Ossetia and Transnistria – and Gehad Abaza does similarly with regard to wartime Syrian-Circassian migration to Abkhazia, to argue that it is not just legal identity but the whole modern system of nation-states which is in fact inherently capricious, artificially constructed and hallucinatory.

Another way all the articles in the special issue ‘think like a jester’ is to explore the often strange lived reality of the people who find themselves with a legal identity conferred by an insurgency or an unrecognised state. Whether lawyers, politicians or policy-makers like it or not, the reality is that these entities do issue legal identity documentation, that their presence and actions do create challenges for people’s access to the “normal” state system of legal registration, and that documentation issued through the “normal” state system might also create vulnerabilities for those living in non-government controlled areas.

Sarah Adamczyk, Jessica Doumit and Thomas McGee highlight such situations of precarity in the Syrian context in terms of peoples’ legal relationship vis-à-vis the Syrian Interim Government, Hayat Tahrir al-Sham, the Kurdish Autonomous Administration and the Syrian regime of Bashar al-Assad; Kathryn Hampton and Bilyana Petkova Khan address both the legal and practical consequences for people, particularly women, of the recognition of death certificates issued by non-state actors in times of armed conflict; and Kamal Makili Aliyev looks at the legal identity of Karabakh Armenians – a particularly pressing issue given the recent military operations in which Azerbaijan gained full control over Nagorno Karabakh. .

To talk of jesters is not to make light of the serious vulnerabilities people living under the control of an armed group or would-be state authorities might be experiencing. Indeed, the jester is, in another sense, deadly serious, the wisest person in the room. It is the job of the jester to ask the seemingly odd questions which test whether an idea is robust. These include ‘what makes a state a state?’, ‘what makes something legal or illegal?’ or ‘who has the right to be included or excluded from a polity and why?’

One’s ability to exercise fundamental rights is not simply a matter of having a legal identity. Rather, it is subject to a more convoluted process of acquiring numerous legal identity documents (often in relation to more than one state or aspirant state) and the diverse legal and social navigation strategies that these documents afford. While the dichotomy of ideas about the State and the non-state, the legal and the illegitimate, the recognised and the unrecognised, stateless and citizen will no doubt endure, this special issue of Citizenship Studies exposes the reality of what exists in-between these binaries.

_{Image by USGS on Unsplash}