The existence under the CRC of a positive obligation for France to repatriate the remaining French children being held in the northeast Syrian detention camps.
Children of foreign fighters – Northeast Syrian detention camps – The camps of Al-Hol and Roj – Terrorism – Right to repatriation – Best interests of the child – Victims first – Extraterritorial jurisdiction – Convention on the Rights of the Child.
On 8 February 2022, the UN Committee on the Rights of the Child adopted its views in a highly-anticipated case on France’s failure to repatriate the minor children of French foreign fighters from detention camps in Northeast Syria. In casu the Committee notably finds it proven that the prolonged detention of the children in the camps under the increasingly dire living conditions poses a threat to the children’s lives (Art. 6(1) CRC) and amounts to cruel, inhuman or degrading treatment (Art. 37(a) CRC). Therefore, the Committee concludes that France is obliged to provide effective reparation for the violations suffered and calls upon the French government to take positive and urgent measures to carry out the repatriation of the children concerned.
A. Facts and Ruling
On 8 February 2022, the UN Committee on the Rights of the Child (hereinafter: the Committee) adopted its views in a highly-anticipated case on the repatriation of French minor children of French foreign fighters from detention camps in Northeast Syria. In its findings, the Committee jointly addressed three complaints filed by a group of French nationals (and one Algerian complainant residing in France) whose grandchildren, nieces and nephews are currently being held in detention camps in Northeast Syria controlled by Kurdish forces. Some of them accompanied their parents to Syria at a young age, others were born there. Although in the meantime the French government has repatriated 11 of these children, 38 others remain detained in Syrian camps in life-threatening conditions.
The authors’ minor relatives are among the nearly 10.000 children, originating from more than 60 countries, who are still being held in detention centers or the Al-Hol and Roj camps in the Northeast of Syria where they are struggling to survive amid increasingly dire living conditions. As discussed in a previous post, they do not have access to basic services such as food, water, sanitary facility, education and medical and psychological aid. According to a recent Save the Children report, 62 children have died in the camps of al-Hol and Roj between January and September 2021, i.e. approximately two a week. Unsurprisingly, the Red Cross has described the situation in the camps as "apocalyptic". For several years now, experts and international organizations have been urging countries to repatriate the family members of suspected foreign fighters, with varying degrees of success.
In the present case, the Committee is called upon to examine whether France’s failure to take protection measures on behalf of the remaining children amounts to a violation of their rights under the International Convention on the Rights of the Child (further: “the Convention” of “CRC”).
1. The complaints
More specifically, the authors claim that France has deliberately failed to carry out the repatriations, which they consider as being the only means to protect the children from infringement of their Convention rights. Therefore, they invoke a violation of inter alia the children’s right to life (article 6.1), their right to survival and development (article 6.2), their right to maintain family relations with the authors of the complaints (article 16), their right to the enjoyment of the highest attainable standard of health (article 24), their right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment (article 37 (a)) or ) and their right not be deprived of their liberty unlawfully or arbitrarily (article 37 (b)) (points 3.6).
According to the authors, the only reasonable option to stop these infringements is to repatriate the children and by not doing so, the French government violates its positive obligation to prevent any infringements (point 3.6). As such, the authors submit that, although not specifically provided for by the Convention, France is under a positive obligation to repatriation, given the fact that this is the only means to implement its obligation to ensure the respect of the Convention rights (point 3.7).
It is further argued that the principle of the best interests of the child (art. 3 of the Convention) has been violated both on a substantial and on a procedural level. Substantively, the decision not to return the children is contrary to their best interests as it results in the continuation of their prolonged and indefinite detention in the camps, in conditions threatening their survival and their physical integrity, where they are suffering from a lack of care, food, water, sanitation facilities and education and where a risk of terrorist indoctrination prevails. On a procedural level, due to the lack of an explicit refusal decision (the repatriation requests remained unanswered), it is not evident from the “decision” not to repatriate that the best interest of the child has been a primary consideration, nor that the children’s interests were even assessed (point 3.5).
2. The Committee’s analysis
In its analysis on the merits of the complaints, the Committee recalls that State parties are under the obligation to adopt positive measures in order to give full effect to the enjoyment of the Convention rights to every child within its jurisdiction (art. 4 CRC). The Committee adds that this obligation is reinforced when it concerns the protection of children against ill-treatment (art. 37 (a)) and potential infringement to their right to life (art. 6) (point 6.6).
The Committee then goes on to examine the claims under both articles. With regard to the claim under article 6 of the Convention, the Committee concludes that enough evidence has been provided to establish that the detention conditions pose an imminent and predictable threat to the children’s lives. Therefore, the lack of protection by the French authorities constitutes a violation of article 6 of the Convention (point 6.7). In addition, the Committee finds it proven that the prolonged detention of the children in the camps under the reported conditions has an impact on their development and amounts to cruel, inhuman or degrading treatment or punishments, in violation of article 37 (a) of the Convention (point 6.8).
Further, in reaction to the State party’s argument that the Convention does not provide for a positive obligation to repatriate its nationals, the Committee concludes that the French government – who was well aware of the children’s situation and had the ability to intervene – has a positive obligation to protect the children against imminent threats to their right to life and to an infringement of their right not be subjected to cruel, inhuman or degrading treatments (point 6.9). However, at this point, the Committee does not explicitly hold that this positive obligation to prevent such infringements results in a positive obligation to repatriate the children (for a discussion on the existence of a positive obligation to repatriation, see infra).
Finally, the Committee observes that France has not given duly regard to the best interests of the child when assessing the repatriation requests, and has therefore violated article 3 of the Convention. also concludes to a violation of article 3 of the Convention (point 6.10).
In light of the above, the Committee concludes that the State party’s failure to protect the children results in a violation of their rights as guaranteed by articles 3, 6 (1) and 37 (a) of the Convention (point 6.11). As a result, France is obliged to provide effective reparation for the violations suffered. In this regard, and without explicitly referring to a positive obligation to repatriate, the Committee recommends the French government to take the positive and urgent measures to carry out the repatriation of the children concerned and to support their reintegration upon return. In the meantime, supplementary measures should be taken to minimize the risks to their life and development (point 8).
3. Joint concurring opinion of B. Van Keirsbilck, S. Kiladze and L. E. Pedernera Reyna
In their joint concurring opinion, three members of the Committee regret the fact that the potential violations of articles 6 (2) and 37 (b) of the Convention have not been examined.
First, they submit that, after having found that the children’s situation amounts to cruel, inhuman or degrading treatment in violation of article 37 (a), the Committee should also have concluded to a violation of article 6 (2), bearing in mind that it is impossible for a child to fully develop in a context of inhuman and degrading treatment. The obligation to protect the children from a violation of article 37 (a) is thus similar to the one arising under article 6 (2). Second, with regard to article 37 (b), the concurring judges note that the children are illegally detained in the camps in Northeast Syria, without recourse to legal remedies and without knowing if and when the detention will end. No detention order, nor any other legal action has been taken at the local level. This amounts to arbitrary detention, in violation with article 37 (b). Although France is not actively involved in the children’s detention, it has the obligation to take the necessary measures to ensure the return of the children and not doing so has led to their continued, illegal and arbitrary detention (art. 4).
The present case allows for a discussion of the existence of a positive obligation to repatriation in light of the Convention (section B.2), which can not be addressed without first examining the issue of extraterritorial application of the Convention rights (section B.1). In a third and last section, attention goes to the need to recognize the children as victims, as international law prescribes that all children recruited into terrorist groups are first and foremost the victims of crimes committed by adults (section B.3).
1. The issue of extraterritorial jurisdiction
- Extraterritorial jurisdiction in international human rights law
Although an in-dept discussion of the complicated issue of extraterritorial jurisdiction falls outside the scope of the present article, some points of discussion deserve our attention.
In international human rights law, States must secure to everyone within their jurisdiction the rights and freedoms defined in the Conventions which they have ratified (see e.g. art. 1 ECHR). While the notion of jurisdiction is primarily understood in a territorial manner (Al-Skeini § 131), its extraterritorial exercise has also been recognized for a long time by human rights courts and treaty bodies. Accordingly, when a person outside of a Contracting State’s territory (e.g. a French child being held in Syria) invokes the enjoyment of such rights and freedoms against that Contracting State, one must first determine whether this person actually finds himself under the (extraterritorial) jurisdiction of that State, thereby triggering its human rights obligations.
Traditionally, extraterritorial jurisdiction exists in two situations, to wit: when a State has effective factual (or physical) control over a territory (spatial model of jurisdiction)(see e.g. Loizidou v. Turkey), or when a State has factual (or physical) authority or control over an individual (personal model of jurisdiction) (see e.g. Al-Skeini, § 137). However, when it comes to the circumstances in the present case, one can hardly argue that France either has effective factual control over the de facto detention camps or exercises any authority over the persons being held there.
Interestingly, new conceptions of extraterritorial jurisdiction have been introduced in recent years, including a functional model of jurisdiction, which is still contested in caselaw (see e.g. the humanitarian visa case) and in literature. According to this functional approach, a jurisdictional link can be established when a State exercises control over (the preparation and execution of) an action/policy affecting individuals outside its territory. In other words, jurisdiction can be engaged when a certain decision or action made by a State produces effects – and in particular impacts individuals’ enjoyment of rights – outside its territory, translating into “situational” control over the persons affected by the State’s action or decision. This approach has inter alia been applied by the UN Human Rights Committee in its decisions on the responsibility of Italy and Malta with regard to a shipwreck of a vessel carrying migrants and refugees in the Mediterannean Sea (for a discussion of these decisions, see Gombeer and Milanovic), focusing on Italy’s capacity to help the vessel in distress. Indeed, as discussed by den Heijer and Lawson, in recent years, several cases of human rights courts and treaty bodies show a growing trend according to which the notion of extraterritorial jurisdiction is moving away from States’ factual control per se, moving more towards the effects/impact of States’ decisions and policies on people and their capacity to act and protect. Despite its judgement in M.N. and others, the ECtHR too seems to be moving in that direction (e.g.: in cases concering the transnational monitoring of private telecommunications, and mass surveillance regimes). In this regard, the Committee’s position on jurisdiction in the present case (see infra) can be considered as an additional example that the shift from a restrictive factual control conception is needed in today’s world, with many States carrying out extraterritorial operations.
- The extraterritorial application of the Convention in the camps in Northeast Syria
In its earlier decision on the admissibility of the complaints, the Committee seems to have opted for this latter, functional approach, by concluding that France, “as the State of the children’s nationality, has the capability and the power to protect the rights of the children in question by taking action to repatriate them or provide other consular responses (emphasis added)” (point 9.7). This therefore suggests a situational control over the children’s situation. As observed by Milanovic, in casu the Committee thus applied a functional conception of jurisdiction, ruling that France has the duty to protect the children because it has the ability to do so on the basis of several contextual factors.
It should be noted that the Committee’s approach on this issue is in line with the position adopted by the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism and the UN Special Rapporteur on extrajudicial, summary or arbitrary executions. In their joint report on the extraterritorial jurisdiction over the children held in Syrian camps, the Rapporteurs conclude that “States that have de facto control over the human rights of children and their guardians in camps in the northern Syrian Arab Republic have positive obligations to prevent violations of those rights (emphasis added)” (point 36). The Special Rapporteurs further add that the existence of such control is a question of facts, relevant factors being inter alia the proximity between the State’s acts and the alleged violation, the degree and extent of cooperation, engagement and communications with the authorities detaining the children and the extent to which the home State is able to put an end to the violation. In its admissibility decision, the Committee put forward similar factors in assessing the extraterritorial application of the Convention rights, to wit: the French nationality of the children, France’s rapport with the Kurdish authorities controlling the camps, the latter’s willingness to cooperate and the fact that France has already repatriated several other French children from these camps.
However, although the Committee’s expansive approach to extraterritoriality allows to reach the most human-rights-friendly outcomes, it may not be kindly received by European governments. Therefore, the question remains whether the European Court of Human Rights will (dare to) adopt a similar functional approach in the currently pending case – which was relinquished to the Grand Chamber – concerning requests to repatriate two French women held in a camp in Syria with their children. In this regard, it might be interesting to know that leave to intervene was given to five Council of Europe member States – who will probably argue against a functional test of jurisdiction – and to several NGO’s and the abovementioned UN Special Rapporteurs who are likely to plead for the recognition of extraterritorial jurisdiction over the persons in the camps following a functional approach.
2. A positive obligation to repatriate under the CRC?
Whereas the State party rightly argues that no positive obligation to repatriate its citizens is imposed by the Convention, nor by any other sources of international law, the question arises whether in the circumstances of the present case such obligation can nevertheless be derived from the Convention rights.
Interesting to note is that, as discussed in a previous comment, according to the Brussels Court of Appeal, a subjective right to repatriation for the children of Belgian jihadists being held in Syrian camps can be derived from the principle of the best interests of the child (art. 3 CRC), if these children are in a situation of distress which they can only escape from by a measure of repatriation.
- The Committee’s assessment
After having concluded that France does indeed exercise jurisdiction over the French children detained in the northeast Syrian camps and therefore is under the positive obligation to ensure their rights are protected (see supra), the Committee had to determine whether France has taken all necessary measures to implement this obligation. Hereby arises the question whether, in the circumstances of the present case, the obligation to ensure the Convention rights translates into a positive obligation to repatriate the children.
In this regard, the Committee reflects on the security, sanitary and living conditions prevailing in the camps. As discussed above, the Committee found that the living conditions in the camps pose an imminent and predictable threat to the children’s lives (in violation with art. 6 (1) CRC) and that their prolonged detention results in cruel, inhuman or degrading treatment or punishments (in violation of article 37 (a) CRC) (points 6.7 – 6.8). The Committee further recalls that State parties’ obligation to adopt positive measures in order to ensure the enjoyment of the Convention rights to every child within its jurisdiction (art. 4 CRC) is reinforced when it concerns the protection of children against ill-treatment and potential infringement to their right to life, as guaranteed by arts. 6 (1) and 37 (a).
Accordingly, the Committee concludes that the French government has a positive obligation to protect the children, especially against violations of the latter provisions. However, a careful reading of the relevant paragraphs reveals that the Committee does not explicitly address the scope of this positive obligation. Indeed, although implied in the Committee’s analysis, it does not explicitly rule that a repatriation measure is the only means for France to fulfill its obligation under the Convention. This rather reluctant approach comes as a bit of a surprise, given the fact that the Committee’s earlier decision on the admissibility found that France has the capability and the power to protect the rights of the children in question by taking action to repatriate them.
This reluctant approach is further reflected in the last paragraphs of the adopted views. Indeed, according to the “obligated” part of the Committee’s conclusion, which is written in rather general terms, France is obligated to provide effective reparation for the violations suffered. Meanwhile, the measure of repatriation is only mentioned in the “optional” part of the conclusion, where the Committee recommends the French government to take the positive and urgent measures to carry out the repatriation of the children concerned (point 8).
In casu, the Committee has adopted many of the authors’ arguments and has concluded to several of the alleged Convention rights violation. Nevertheless, it remains unclear why the Committee has not adopted the authors’ argument that France is under a positive obligation to repatriation, given the fact that this is the only means to implement its obligation to ensure the Convention rights. One can only hope that the Committee’s approach in this regard will not be used by France to contest the enforcement of repatriation measures.
3. Children are victims first
On a policy level, the question of repatriation is complicated by the fact that some child returnees may be both the victims and perpetrators of criminal offences following their time in Iraq and Syria. In its ex-post evaluation report the European Parliament rightly observes that, as a result, EU Member States may be faced with a potential “policy contradiction between their security priorities and their legal obligations to children who may have perpetrated terrorism-related offences but are always victims under international law” (p. 58).
Indeed, under international law all children recruited into armed or terrorist groups are first and foremost the victims of crimes committed by adults. The 2007 [‘Paris’] Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, for example, prescribe that “[c]hildren who are accused of crimes under international law allegedly committed while they were associated with armed forces or armed groups should be considered primarily as victims of offences against international law; not only as perpetrators” (principle 3.6).
Although the Committee repeatedly refers to the authors’ relatives as “enfants victimes” (this victim notion appears 22 (!) times in the Committee’s decision) it does not literally invoke this victim first principle. Still, the principle is briefly mentioned by the three Committee members, stating in their concurring opinion (see supra) that the children should be treated first and foremost as victims (point 6).
This victim status is important for two reasons. First, according to the UNODC Handbook on Children Recruited and Exploited by Terrorist and Violent Extremist Groups, the “[a]cknowledgment of the victim status of such children is a precondition for them having access to their rights as victims of crime, including the right to reparations and rehabilitation measures” (p. 44). Second, victim status also seems to guarantee reinforced treatment standards. As such, the UNGA resolution 70/291 prescribes that, “given their potential status as victims of terrorism as well as of other violations of international law, [they] should be treated in a manner consistent with [their] rights, dignity and needs, in accordance with applicable international law, in particular obligations under the Convention on the Rights of the Child” (§18).
However, when it comes to the “enfants victimes” still detained in Syrian camps, one cannot but notice that, years after the defeat of ISIS, these children still do not have access to their rights as victims of crime, and are still not treated in a manner consistent with their rights, dignity and needs. Therefore, it is urgently needed to officially acknowledge the victim status of the “enfants victimes” still detained in Syrian camps.
C. Conclusion: a European Guantanamo?
As a concluding observation, it should be noted that NGO’s are warning that, if repatriations continue at the current rate, foreign fighters and their children may be stuck in these unsafe camps in Northeast Syria for up to 30 years. Some are even arguing that these de facto detention camps may turn into a new Guantanamo. As such, in its report – meaningfully titled “Europe’s Guantanamo: The indefinite detention of European women and children in North East Syria” – Rights & Security International argues that European States are seeking to put their jihadist nationals beyond the reach of courts and legal remedies in the same way the United States authorities attempted with the Guantanamo Bay detainees :
“Tens of thousands of women and children captured from territories formerly controlled by [IS] ... are being detained without charge and, like those unlawfully detained for terrorist association at Guantanamo Bay, are afforded no legal rights and placed outside the protection of the law. […] As with those detained at Guantanamo Bay, these women and children are subject to treatment and conditions that have been classified by international experts as amounting to cruel, inhuman and degrading treatment”. (p. 3)
Indeed, although several EU bodies have previously criticized the US for maintaining Guantanamo Bay, various European countries are now using similar de facto detention camps in Syria. The European Parliament in its resolution on Guantanamo, for example, called on the US to close this detention facility and insisted “that every prisoner should be treated in accordance with international humanitarian law and tried without delay in a fair and public hearing by a competent, independent, impartial tribunal”. It further reiterated the need to comply with international law and that the fight against terrorism “can only be successfully pursued if human rights and civil liberties are fully respected”. Anno 2022, with many European children still detained in a Guantanamo-like situation, however, this European Parliament resolution seems to be particularly hypocrite. Therefore, on a concluding note, the author of this article subscribes to the long list of organizations and persons advocating for the quick repatriation of all children stuck in the northeast Syrian camps.
D. Suggested Reading
To read the case : Committee on the rights of the child, 8 February 2022, F. B. and others v. France, communications n°77/2019, 79/2019 and 109/2019, http://curia.europa.eu/juris/document/document.jsf?text=&docid=198766&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=260024.
Case law :
Committee on the Rights of the Child, 30 September 2020, admissibility decision concerning communications n° 79/2019 and n° 109/2019.
Brussels (fr.), 5 March 2020, n° 2020/KR/3, TJK, 2020, n° 3, pp. 192 – 194.
Brussels (fr.), 9 January 2020, n° 2019/KR/39.
J.Z. Barboza and C. Rigotti, « Unfolding the Case of Returnees: How the European Union and Its Member States Are Addressing the Return of Foreign Fighters and Their Families » International Review of the Red Cross, 2022, Vol. 103, Issues 916-917, pp. 681-704.
J.-Y. Carlier et S. Sarolea, Droit des étrangers, Bruxelles, Larcier, 2016.
L. Cools, « La reconnaissance d’un droit subjectif au rapatriement dans le chef des enfants belges retenus en Syrie : un grand pas en avant », Cahiers de l’EDEM, décembre 2020.
European Parliamentary Research Service, « The return of foreign fighters to EU soil. Ex-post evaluation », May 2018.
M. Den Heijer, M. and R. Lawson†, (2012), « Extraterritorial Human Rights and the Concept of ‘Jurisdiction’ », in M. Langford, W. Vandenhole, M. Scheinin, and W. Van Genugten (Eds.), Global Justice, State Duties: The Extraterritorial Scope of Economic, Social, and Cultural Rights in International Law, Cambridge, Cambridge University Press, 2012, pp. 153-191.
M. Furlan and A. Hoffman, « Challenges posed by returning foreign fighters », March 2020.
K. Gombeer, « Rescue operations at sea and human rights », Cahiers de l’EDEM, April 2021.
M. Karahamad, « A Guantánamo in Syria for European Jihadists is not a Solution », February 2022.
M. Levin, « Rethinking U.S. Efforts on Counterterrorism: Toward a Sustainable Plan Two Decades after 9/11 », Journal of National Security Law and Policy, 2022, 12(2), pp. 247-276.
A. Luquerna, « The Children of ISIS: Statelessness and Eligibility for Asylum under International Law », Chicago Journal of International Law, 2020, 21(1), pp. 148-193.
M. Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy, Oxford, Oxford University Press, 2011.
M. Milanovic, « Repatriating the Children of Foreign Terrorist Fighters and the Extraterritorial Application of Human Rights », EJIL:Talk!, 10 November 2020.
V. Moreno-Lax, « The Architecture of Functional Jurisdiction: Unpacking Contactless Control—On Public Powers, S.S. and Others v. Italy, and the “Operational Model” », German Law Journal, 2020, 21(3), 385-416.
G. Noll, « Theorizing Jurisdiction » in A. Orford and F. Hoffmann (Eds.), The Oxford Handbook of Internationaly Legal Theory, Oxford, Oxford University Press, 2016.
OCAM, « Rapatriement d’enfants belges et de leurs mères de la zone de conflit en Syrie », March 2021.
Rights & Security International, « Europe’s Guantanamo: The indefinite detention of European women and children in North East Syria », February 2021.
Save the Children, « When am I going to start to live? The urgent need to repatriate foreign children trapped in Al Hol and Roj Camps », September 2021.
UNICEF, « Nearly 850 children at immediate risk as violence continues in northeast Syria », January 2022.
UNODC, « Handbook on Children Recruited and Exploited by Terrorist and Violent Extremist Groups: The Role of the Justice System », 2017.
UN Special Rapporteur on the promotion and protection of human rights while countering terrorism and UN Special Rapporteur on extrajudicial, summary or arbitrary executions, « Extra-territorial jurisdiction of States over children and their guardians in camps, prisons, or elsewhere in the northern Syrian Arab Republic », 2020.
To cite this contribution: L. Cools, “The existence under the CRC of a positive obligation for France to repatriate the remaining French children being held in the northeast Syrian detention camps”, Cahiers de l’EDEM, May 2022.