States’ Obligations to Foreign Islamic State Families under the Convention on the Rights of the Child

November, 2020

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Lauren Taiclet
Vol. 42 Executive Editor

The notorious al-Hol camp, located in northeastern Syria, has a fraught role as a hybrid space that offers residents none of the legal rights of a wartime detention facility, nor the services or protection of a displaced persons camp.[1] Built for 10,000 people but now housing as many as 70,000, it is overcrowded and under-equipped.[2] Sanitation has always been poor and health care almost nonexistent.[3] Currently there are an estimated 10,000 foreigners being held at the al-Hol camp (not including some 30,000 Iraqis).[4] These foreigners are almost exclusively women and children, primarily the family members of ISIL fighters.[5] Separated from the general camp population, they are housed away from food and health points that serve the other residents of the camp.[6] Unlike in the children in the general population, the children of foreigners also do not have access to education services or a play area.[7] States seemingly have four options in deciding what to do with their citizens that are currently being held in this camp:

  1. Leave them where they are to be dealt with by local authorities;
  2. Actively prevent them from returning, either by stripping them of their nationality or by using technical arguments to contest the existence of their initial citizenship;
  3. Recognize the right to return but avoid active consular efforts to facilitate their repatriation; or
  4. Actively repatriate foreigners and subject them to prosecution in their home country in addition to monitoring, rehabilitation, or reintegration efforts following their return.[8]

While a few states have taken an active role in repatriation[9], and the United States has advocated for repatriation generally[10], most western states have been very reluctant to repatriate any citizens being detained.[11] Many states have explicitly stated they would not allow nationals to return; some have gone so far as to revoke citizenship.[12] The reluctance to repatriate these nationals stems primarily from security risks, challenges faced in identifying nationalities[13], inability to gather admissible evidence to prosecute[14], and difficulties developing reintegration programs.[15] For these reasons, states have seemed to favor the first option of leaving foreign fighters and their families where they are to be dealt with by local authorities,[16] perhaps in conjunction with making return difficult under option two or three. Unfortunately, this leaves the women and children in these camps in “limbo”[17] because they likely will not be released until they are able to be repatriated to their country of origin.[18] There are several compelling arguments in favor of repatriation.[19] First is a general moral obligation to protect children and innocents from the terrible conditions of the al-Hol camp.[20] Second is that the security risks posed by leaving the foreign fighters and their families in Syria to be further radicalized are actually greater than the risks associated with repatriation and rehabilitation.[21] Third is a practical consideration as to the difficulty states face trying to monitor people in the camp and the risk that those foreigners sneak into their country of origin if they escape or are released.[22] The most important argument though is a duty under international law.[23] All U.N. member states are signatories to the U.N. Convention on the Rights of the Child (CRC).[24] The guiding principles of the CRC include: the best interests of the child as a primary consideration in all actions concerning children, the child’s inherent right to life, and state parties’ obligation to ensure to the maximum extent possible the survival and development of the child.[25] Under the CRC, states have an affirmative legal duty to: 1) recognize the citizenship of the children born in their territory and subsequently taken to ISIL territory or born to the state’s citizens while in ISIL territory, 2) repatriate all children that are nationals of the state, and most notably 3) repatriate all children’s family members —including the mother and father — unless it can be proven that they pose a concrete and tangible threat. First, as to citizenship, under Article 7 of the CRC, a child “shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality”.[26] This right is further supported by the Convention on the Reduction of Statelessness, European Convention on Nationality, and the ICCPR.[27] Despite these numerous claims to a right to nationality, states have made efforts to revoke or prevent children’s citizenship.[28] The U.N. has stated that there are as many as 3,500 children at risk of being left stateless because states appear unwilling to repatriate them.[29] The non-discrimination principle of Article 2(2) requires that children not be punished, treated differently, or discriminated against because of the beliefs of their parents.[30] Stripping children of citizenship or refusing to provide it is a violation of international law, the only remedy to which is providing citizenship to all qualifying children. Second, each state’s children are entitled to repatriation under Articles 3 and 6 of the Convention. These articles require, respectively, that the primary consideration in all actions concerning children be made in the best interests of the child and that states “ensure to the maximum extent possible the survival and development of the child”.[31] The survival and best interests of the children at al-Hol are clearly in danger.[32] Other provisions of the CRC could also all be invoked to show that repatriation is necessary based on the conditions of the al-Hol camp: the right to protection from all forms of physical or mental violence[33], the right to the highest attainable standard of health[34], the right to an adequate standard of living, and the right to education.[35] Recognizing the moral imperative and lack of compelling arguments for leaving innocent children to suffer, even those states that have been most reluctant to repatriate these nationals generally have made exceptions in the cases of a very small number of orphans.[36] They have balked however at the idea of repatriating children with their mothers.[37] This leads us to the states’ final obligation under the CRC. In order to respect the rights of their children, states are obligated to repatriate the children’s family members as well, unless it can be proven that they pose a concrete and tangible threat. Article 9 of the CRC refers to the principle of family unity.[38] While this is not an absolute right, separation should not take place if less intrusive measures could protect the child.[39] Courts have supported the proposition that parents must be repatriated with their children, subject to determination of the threat the parents pose.[40] This obligation has also been recognized by the Council of Europe Parliamentary Assembly.[41] States, therefore, have a duty to take affirmative measures to register qualifying children and repatriate them with their families. Every child and their family members intentionally left by their states in the al-Hol camp constitutes a breach of the CRC, which is an internationally wrongful act.[42] The consequences for continued violation should include “naming and shaming” the offending state parties and possibly imposition of reparations for the children who are the victims of the breach[43].

[1] Int’l Crisis Grp., Women and Children First: Repatriating the Westerners Affiliated with ISIS 4 (Nov. 18, 2019), https://d2071andvip0wj.cloudfront.net/208-women-and-children-first.pdf. [2] WHO Regional Office for the Eastern Mediterranean, Al Hol Camp Situation Report, no. 17 (2019), https://applications.emro.who.int/docs/SYR/SYR-Hol-Has-17-Oct-Dec-2019-eng.pdf?ua=1. [3] Hum. Rts. Council, Rep. of the Independent International Commission of Inquiry on the Syrian Arab Republic, U.N. Doc. A/HRC/42/51, ¶¶ 83-84 (2019) [hereinafter H.R.C. Report]. [4] Azeem Ibrahim & Myriam François, Foreign ISIS Children Deserve a Home, ForeignPolicy (June 18, 2020), https://foreignpolicy.com/2020/06/18/islamic-state-foreign-fighters-children-syria-camps-repatriation. [5] H.R.C. Report, supra note 3, ¶85. [6] Id. [7] Int’l Crisis Grp., supra note 1, at 7. [8] Adam Hoffman & Marta Furlan, Challenges Posed by Returning Foreign Fighters 4 (March 2020), https://extremism.gwu.edu/sites/g/files/zaxdzs2191/f/Challenges%20Posed%20by%20Returning%20Foreign%20Fighters.pdf. [9] Gavin Helf, Central Asia Leads the Way on Islamic State Returnees, U.S. Inst. Peace Blog (Sept. 13, 2019), https://www.usip.org/blog/2019/09/central-asia-leads-way-islamic-state-returnees (discussing Kazakhstan as a leader in repatriation efforts); Repatriate or Reject: What Countries Are Doing with IS Group Families, France 24 (Nov. 6, 2019), https://www.france24.com/en/20190611-repatriation-families-islamic-state-group-jihadists-children (discussing general approach of several countries toward repatriation). [10] US, Europeans Part Ways in UN Over Repatriation of ISIS Detainees, Arab Weekly (Sept. 2, 2020), https://thearabweekly.com/us-europeans-part-ways-un-over-repatriation-isis-detainees (explaining the US rejection of proposed U.N. resolution because it did not demand repatriation). [11] Hoffman, supra note 8, at 21. [12] Id. [13] Many people surrendered or ripped up their passports upon arrival in ISIS territory; many children lack birth registration documents and/or were born to parents of two different nationalities. Hoffman, supra note 8, at 14. Especially for orphaned children, identifying their respective countries of origin can prove a long and arduous process. See H.R.C. Report, supra note 3, ¶85. [14] Int’l Crisis Grp., supra note 1, at 10. [15] Andrew Gilmour, The Children of ISIS Don’t Belong in Cages, Either, N.Y. Times (Dec. 9, 2019), https://www.nytimes.com/2019/12/09/opinion/isis-children.html. [16] Anthony Dworkin, Beyond Good And Evil: Why Europe Should Bring ISIS Foreign Fighters Home, Eur. Council Foreign Rels. 10 (Oct. 25, 2019), https://ecfr.eu/publication/beyond_good_and_evil_why_europe_should_bring_isis_foreign_fighters_home. [17] H.R.C. Report, supra note 3, ¶85. [18] Syrian Democratic Council SDC (@SDCPress), Twitter (Oct. 4, 2020 12:58 PM), https://twitter.com/SDCPress/status/1312844675187867656; see Jeff Seldin, Islamic State Families to Be Cleared from al-Hol Camp, VOA (Oct. 5, 2020), https://www.voanews.com/middle-east/islamic-state-families-be-cleared-al-hol-camp (discussing Syrian Democratic Council (SDC) plans to release Syrians from detention camps but not foreign nationals). [19] Int’l Crisis Grp., supra note 1, at 10. [20] Gilmour, supra note 15; Ibrahim, supra note 4. [21] Hoffman, supra note 8, at 3; Souad Mekhennet & Joby Warrick, The Appeal of ISIS Fades Among Europeans Who Returned Home from Syria, Washington Post (June 14, 2020), https://www.washingtonpost.com/national-security/the-appeal-of-isis-fades-among-europeans-who-returned-home-from-syria/2020/06/14/754b3e0e-acb9-11ea-9063-e69bd6520940_story.html. [22] Int’l Crisis Grp., supra note 1, at 10; Tanya Mehra, European Countries Are Being Challenged in Court to Repatriate Their Foreign Fighters and Families Int’l Centre Counter-Terrorism (Nov. 7, 2019), https://icct.nl/publication/european-countries-are-being-challenged-in-court-to-repatriate-their-foreign-fighters-and-families (explaining case of Dutch family that escaped al-Hol camp). [23] Stefan Schennach (Rapporteur for Eur. Parl. Ass. Comm. on Soc. Affs., Health and Sustainable Dev.), International Obligations Concerning the Repatriation of Children from War and Conflict Zones at 7, Doc. No. 15055 (Jan. 29, 2020), https://pace.coe.int/en/files/28498/html. [24] U.N.T.C., https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&lang=en (last visited Nov. 13, 2020) (displaying status of the signatories to the Convention on the Rights of the Child; note the United States has signed but not ratified the CRC) [25] U.N. Comm. Rts. Child, General Comment No. 5: General Measures of Implementation of the Convention on the Rights of the Child, CRC/GC/2003/5 (Nov. 27 2003), https://www.refworld.org/docid/4538834f11.html. [26] United Nations Convention on the Rights of a Child, art. 7, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC]. [27] Convention on the Reduction of Statelessness art. 1, entered into force Dec. 13, 1975, 989 U.N.T.S. 175; European Convention on Nationality art. 6, opened for signature Nov. 6, 1997, E.T.S. No. 166; see International Covenant on Civil and Political Rights art. 12, Dec. 16, 1966, 999 U.N.T.S. 171. [28] Sandrine Amiel, Denmark Plans to Deprive Jihadists’ Children of Their Citizenship, Euronews (March 29, 2019), https://www.euronews.com/2019/03/28/denmark-plans-to-deprive-jihadists-children-of-their-citizenship. [29] U.N. Report on Syria Conflict Highlights Inhumane Detention of Women and Children, U.N. News (Sept. 11, 2019), https://news.un.org/en/story/2019/09/1046102. [30] CRC, supra note 26, art. 2. [31] CRC, supra note 26, arts. 3, 6. [32] Schennach, supra note 3, at 7; Patrick Sawer, World ‘Must Act Now’ over Plight of al-Hol Camp Children, Warn Charities as Winter Comes, Telegraph (Oct. 17, 2020), https://www.telegraph.co.uk/global-health/terror-and-security/world-must-act-now-plight-al-hol-camp-children-warn-charities; Int’l Crisis Grp., supra note 1, at 7. [33] U.N. Comm. Rts. Child, General Comment No. 13: The Right of the Child to Freedom from All Forms of Violence, CRC/C/GC/13 (April 18, 2011), https://www.refworld.org/docid/4e6da4922.html. [34] U.N. Comm. Rts. Child, General Comment No. 15: On the Right of the Child to the Enjoyment of the Highest Attainable Standard of Health, CRC/C/GC/15 (April 17, 2013), https://www.refworld.org/docid/51ef9e134.html. [35] CRC, supra note 26, arts. 19, 24, 27, 28. [36] Mehra, supra note 22; Ibrahim, supra note 4. [37] Ibrahim, supra note 4. [38] CRC, supra note 26, art. 9. [39] U.N. Comm. Rts. Child, General Comment No. 13: The Right of the Child to Freedom from All Forms of Violence, CRC/C/GC/13 (April 18 2011), https://www.refworld.org/docid/4e6da4922.html. [40] Schennach, supra note 32, at 8; Mehra, supra note 22. [41] See Eur. Par. Ass., International Obligations Concerning the Repatriation of Children from War and Conflict Zones, 7th Sess., Res. 2321 (2020). [42] G.A. Res. 56/83, annex, Responsibility of States for Internationally Wrongful Acts art. 2 (Dec. 12, 2001). [43] Id. art. 31. The views expressed in this post represent the views of the post’s author only.