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https://doi.org/10.1093/jcsl/krac013
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International Legal Issues Arising from Repatriation of
the Children of Islamic State
Saeed Bagheri* and Alison Bisset
†
Abstract
The detention of children of Islamic State within Kurdish-controlled camps in
Syria presents a complex dilemma for national authorities and the inter-
national community. Although a small number of states have repatriated their
nationals, overall, little progress has been made and thousands of children
continue to languish in deplorable conditions. Resolution has been urged
from both humanitarian and international security perspectives, but
Western states, in particular, have sought to avoid responsibility, often using
legal mechanisms to impede repatriation efforts. This article asks whether
international legal frameworks can provide a route to resolution. It argues
that by centralizing the international law and policy on children’s rights, re-
patriation becomes the priority rather than domestic political and security
objectives. Conceptual light is shed on the ways in which international human
rights law standards can be mobilized for the protection of conflict-affected
children as individual rights holders.
1. Introduction
The defeat of Islamic State (IS) has left thousands of foreign fighter children
indefinitely detained in camps and prisons in Iraq, Libya and Syria.
Conditions are, infamously, desperate,
1
with experts warning that the situ-
ation will result in future radicalization.
2
Repeated calls by the United
Nations (UN) Secretary General for governments to facilitate repatriation
* Lecturer, International Law, School of Law, University of Reading, Reading, UK.
E-mail: saeed.bagheri@reading.ac.uk
† Associate Professor, International Human Rights Law, School of Law, University of
Reading, Reading, UK
1
UNICEF, ‘UNICEF Urges Repatriation of All Children in Syria’s Al-Hol Camp
Following Deadly Fire’ UN News (28 February 2021) <https://news.un.org/en/story/
2021/02/1085982>accessed 19 April 2022.
2
A Athie, ‘The Children of ISIS Foreign Fighters: Are Protection and National Security
in Opposition?’ IPI Global Observatory (18 December 2018) <https://theglobalobserva
tory.org/2018/12/children-isis-foreign-fighters-protection-national-security-opposition/>
accessed 6 July 2021; FD N
ıAola´in, ‘Time to Bring Women and Children Home from
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of women and children
3
have yielded little. Few governments have shown
willingness to address the situation by repatriating those with nationality or
citizenship claims to their jurisdiction,
4
and there is no international consen-
sus on how best to tackle a situation that seems likely to pose a threat to
future international peace and security. Instead, the children of IS have been
abandoned to wide-scale human rights abuses, security risks, indefinite de-
tention without charge and potential statelessness. In recent months, the
situation has appeared to worsen, with reports of IS sleeper cells within
the camps and an inability of Kurdish Syrian Defence Forces (SDF) to main-
tain order in the camps purportedly under their control.
5
Moreover, as IS
now focuses its efforts in the Sahel, in what it terms its ‘West Africa
Province’,
6
there should be real concern that the situation currently prevail-
ing in the Middle East will not be an isolated event.
This article asks whether and how international law can be utilized to motiv-
ate and improve efforts to realize protection for the children of IS as the victims
of their parents’ atrocities. It considers how international legal standards can be
mobilized for the protection of conflict-affected children, conceptualizing the
protection of children connected to armed non-state actors as an obligation
under international law. It demonstrates that while there is a considerable vol-
ume of international law on this topic, it has never been operationalized to
respond to a problem of this nature and that existing models must be reima-
gined in order to respond to the unique situation presented by IS foreign fighter
children.
The situation is, admittedly, fraught with difficulty. Beyond the political reluc-
tance to commit resources to unpopular repatriation programs,
7
there are
Iraq and Syria’ Just Security (4 June 2019) <www.justsecurity.org/64402/time-to-bring-
women-and-children-home-from-iraq-and-syria/>accessed 6 July 2021.
3
Report of the Secretary General, Children and Armed Conflict, A/74/845-S/2020/525
(9 June 2020) para 184 <https://reliefweb.int/sites/reliefweb.int/files/resources/15-
June-2020_Secretary-General_Report_on_CAAC_Eng.pdf>accessed 6 July 2021.
4
On the limited efforts by some, see R van Ark and F Gordon, ‘Repatriating the
Forgotten Children of ISIS Fighters: A Matter of Urgency’ EUI Global Citizen
Observatory (8 May 2020); A Speckhard and M Ellenberg, ‘Can We Repatriate the
ISIS Children?’ International Center for the Study of Violent Extremism (July 2020) 5;
‘Belgium to Repatriate Children of Jihadists Held in Syrian Refugee Camp’
Euronews (5 March 2021) <www.euronews.com/2021/03/05/belgium-to-repatriate-
children-held-in-al-hol-syrian-refugee-camp>accessed 6 July 2021.
5
D Sabbagh, ‘Kurdish Forces Enter Detention Camp in Syria to Eliminate ISIS Cells’
The Guardian (28 March 2021) . <https://www.theguardian.com/world/2021/mar/28/
kurdish-forces-enter-refugee-camp-in-syria-to-eliminate-isis-cells>accessed 19 April
2022;also the concerns raised in B McKernan, V Mironova and E Graham-Harrison,
‘How Women of ISIS in Syrian Camps Are Marrying Their Way to Freedom’ The
Guardian (2 July 2021) <www.theguardian.com/world/2021/jul/02/women-isis-syrian-
camps-marrying-way-to-freedom>accessed 6 July 2021.
6
M Al-Lami, ‘Africa’s Sahel Becomes Latest Al-Qaeda-IS Battleground’ BBC News
(11 May 2020) <www.bbc.co.uk/news/world-africa-52614579>accessed 6 July 2021.
7
A Dworkin, Beyond Good and Evil: Why Europe Should Bring ISIS Foreign Fighters
Home (European Council on Foreign Relations, 25 October 2019).
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practical problems which can make the process of repatriation slow
and difficult. To date, repatriation efforts have centered on nationality,
8
driven, it seems, by assertions from international
9
and regional
10
human rights
bodies that states of nationality are best placed to provide protection to the
individuals involved. Where repatriation proceeds on grounds of nationality,
determining it can be complex in a situation where few children have birth
registration documents and where many have parents of different national-
ities. It is relatively common for women to have multiple children with fathers
of different nationalities, raising questions as to which state should bear the
responsibility of repatriation. Many states would prefer to repatriate children
only, leaving behind their mothers, generally considered a national security
risk. However, even apart from the best interests considerations
11
this would
raise for separated children, the SDF, which controls the camps in which chil-
dren are detained, will not permit separation of children from their mothers
against the mother’s wishes.
12
The lack of a coordinated international effort to deliver a solution has given
rise to a small number of legal challenges at national
13
and international
14
levels, alleging that the extra-territorial obligations of states parties under dif-
ferent international human rights treaty regimes require the repatriation of
children from camps.
15
These have done little to compel governments to take
action. At national levels, cases have been dismissed on various grounds, from
highly technical findings on lack of enforcement jurisdiction, to refusal of courts
8
V Mironova, ‘What to do about the children of the Islamic State’ Foreign Policy (25
November 2020) <https://foreignpolicy.com/2020/11/25/islamic-state-isis-repatriation-
child-victims/>accessed 6 July 2021.
9
See, eg, ‘Extra-territorial Jurisdiction of States over Children and Their Guardians in
Camps, Prisons, or Elsewhere in the Northern Syrian Arab Republic’, para 35 <www.
ohchr.org/Documents/Issues/Terrorism/UNSRsPublicJurisdictionAnalysis2020.pdf>
accessed 6 July 2021.
10
Council of Europe Commissioner for Human Rights, ‘Council of Europe Member
States Should Urgently Repatriate their Under-age Nationals Stranded in Northern
Syria’ Statement of 28 May 2018.
11
Convention on the Rights of the Child (1989) art 3.
12
Dworkin (n 7).
13
A Hope, ‘No Automatic Right of Return for Widows and Orphans of Dead Syria
Fighters, Rules Court of Appeal’ The Brussels Times (Brussels, 28 February 2019);
Conseil d’Etat D
ecision No 429668, Ordonnance du 23 avril 2019; ‘Dutch State Does
Not Have to Repatriate IS Women and Children: Advocate General’ DutchNews.nl
(24 April 2020) <www.dutchnews.nl/news/2020/04/dutch-state-does-not-have-to-re
patriate-is-women-and-children-advocate-general/>accessed 6 July 2021.
14
Committee on the Rights of the Child, Decision adopted by the Committee under the
Optional Protocol to the Convention on the Rights of the Child on a communications
procedure, concerning communications No 79/2019 and No 109/2019, CRC/C/85/D/
79/2019–CRC/C/85/D/109/2019 (2 November 2020).
15
Third-Party Intervention by the Council of Europe Commissioner for Human Rights
before the European Court of Human Rights, App Nos 24384/19 and 44234/20, H.F
and M.F. v France and J.D. and A.D. v France, 25 June 2021, Strasbourg.
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to adjudicate on what they consider to be political issues.
16
Neither have these
cases brought clarity on state obligations under international law. Indeed, recent
communication from the Committee on the Rights of the Child has created
confusion on the nature and scope of extra-territorial obligations vis-a`-vis for-
eign fighter children due to its failure to clearly articulate the basis on which
states of nationality incur positive obligations to protect the rights of child
nationals in camps.
17
There is a wealth of international law and policy, across
international human rights law, international humanitarian law and internation-
al refugee law, dedicated to the protection of children and promotion of their
rights, much of it focused particularly on how children ought to be treated
during and post-conflict.
18
Yet, to date, none of it appears to have proved useful
or effective in developing a solution.
In order to assess whether and how international law can improve efforts to
provide protection for the children of IS, this article explains the situation facing
children in Kurdish-controlled camps and identifies the difficulties inherent in
relying upon nationality as a route to repatriation. It will then consider the
international legal frameworks which protect children’s rights and demonstrate
that, together, these legal instruments provide a strong foundation on which to
base the repatriation of children. The article argues that the factors behind state
reluctance to repatriate are, in many respects, ill-conceived and are at variance
with their international legal obligations on children’s rights. It contends that by
centralizing the international law and policy on children’s rights, and recogniz-
ing children in camps as victims of their parents’ actions, repatriation becomes
the priority as a means of ensuring their rights under international law.
2. Children in camps
The complex and chaotic situation in which the rise and fall of the IS occurred
makes it difficult to ascertain exact numbers of those involved and affected. It is
estimated that between 2013 and 2018 some 41, 490 foreign citizens across 80
countries became affiliated with IS. Approximately 13% of them are women
and 12% are children meaning that one in four of IS’s affiliates are women and
children.
19
There are likely many more children not included in this tally:
16
For an overview, see C Sandelowsky-Bosman and T Liefaard, ‘Children Trapped in
Camps in Syria, Iraq and Turkey: Reflections on Jurisdiction and State Obligations
under the United Nations Convention on the Rights of the Child’ (2020) 38 Nordic
Journal of Human Rights 141.
17
M Milanovic, ‘Repatriating the Children of Foreign Fighters and the Extraterritorial
Application of Human Rights’ EJIL: Talk! (10 November 2020) <www.ejiltalk.org/
repatriating-the-children-of-foreign-terrorist-fighters-and-the-extraterritorial-applica
tion-of-human-rights/>accessed 6 July 2021. This will be discussed further below.
18
These legal frameworks will be discussed in detail below.
19
See UNSC, ‘ISIL Now “A Covert Global Network” Despite Significant Losses, United
Nations Counter-Terrorism Head Tells Security Council’ 8330th Meeting (PM), UN Doc
SC/13463 (23 August 2018) <www.un.org/press/en/2018/sc13463.doc.htm>accessed 6
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children who were born in or are currently in besieged areas; children born
without proper civil registration; children of whom authorities have lost track,
and children who are merely unknown to authorities.
20
However, according to
UN reports, around 28, 000 children of foreign fighters are living in SDF-con-
trolled camps in Syria, 20, 000 of them from Iraq.
21
Half of the children living in
three northern Syrian camps are under the age of 5 years, and 80% are under 12
years.
22
The conditions within these camps are deplorable. Violence is serious
and ongoing as the camps continue, in large part, to operate under a form of IS
rule, imposed by women faithful to the group’s ideology, and the resource
constrained SDF is unable to provide adequate security.
23
There is overcrowd-
ing, giving rise to a public health crisis, and an absence of medical care.
Infrastructure is poor, food, clean water and sanitation are inadequate
and children lack access to education.
24
Within the camps, children’s inter-
national legal rights to protection from violence
25
and inhuman or degrading
treatment
26
and to provision of health care,
27
education
28
and decent standards
July 2021; J Cook and G Vale, From Daesh to ‘Diaspora’: Tracing the Women and
Minors of Islamic State (ICSR Publications 2018) 21; L Loveluck and others, ‘After
The Caliphate: Castaway from the Islamic State’ Washington Post (23 December
2019) <www.washingtonpost.com/world/2019/12/23/how-isis-women-their-children-are-
being-left-stranded-desert/?arc404=true&itid=lk_inline_manual_1>accessed 6 July 2021.
20
Athie (n 2).
21
‘UNICEF Urges Governments to Repatriate Thousands of Foreign Children
Stranded in Northeast Syria’ UN News (4 November 2019) <https://news.un.org/en/
story/2019/11/1050561>accessed 6 July 2021.
22
See ‘The World Must Do Something About the Children of ISIS Fighters’ Washington
Post (12 January 2022) <www.washingtonpost.com/opinions/the-world-must-do-some
thing-about-the-children-of-isis-fighters/2020/01/12/5dae27c8-316e-11ea-91fd-82d4e04a3fac_
story.html>accessed 6 July 2021.
23
S Khani, ‘Al-Hawl Camp and the Potential Resurgence of ISIS’ Fikra Forum
(Washington Institute, 29 June 2020) <www.washingtoninstitute.org/policy-analysis/
al-hawl-camp-and-potential-resurgence-isis>accessed 6 July 2021.
24
ibid.
25
Convention on the Rights (n 11) art 19; European Social Charter (1961, revised 1966)
art 17; African Charter on the Rights and Welfare of the Child (1990) art 15; Charter
of Fundamental Rights of the European Union (2012) art 24.
26
Universal Declaration of Human Rights (1948) art 5; International Covenant on Civil
and Political Rights (1966) art 7; Convention for the Protection of Human Rights and
Fundamental Freedoms (1950) art 3; American Convention on Human Rights (1969)
art 5; African (Banjul) Charter on Human and Peoples’ Rights (1981) art 5;
Convention against Torture (1984); Inter-American Convention to Prevent and
Punish Torture (1985); Charter of Fundamental Rights ibid art 3.
27
International Covenant ibid art 12; European Social Charter (n 25) art 11; African
Charter on Human and Peoples’ Rights (1981) art 16; Convention on the Rights (n
11) art 24; African Charter on the Rights and Welfare of the Child (1990) art 14.
28
Universal Declaration (n 26) art 26; International Covenant (n 26) arts 13 and 14,
Convention on the Rights (n 11) arts 28 and 29; Protocol to the Convention for the
Protection of Human Rights and Fundamental Freedoms (1952) art 2; African
Charter on Human and Peoples’ Rights (1981) art 17; African Charter on the
Rights and Welfare of the Child (1990) art 11.
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of living
29
are therefore seriously compromised. Children remain subject to IS
indoctrination, often from their mothers, many of whom remain fiercely loyal to
the organization. There are concerns that children born to IS fighters may have
been radicalized
30
and that some may even have participated in fighting or in
terror attacks.
31
Studies suggest that insecure internally displaced persons
(IDPs) and refugee camps are breeding grounds for child recruitment and ab-
duction by armed groups and that where family units are weak or where they
are aligned with an armed group, children are also more likely to join that
group.
32
The situation experienced by these children as a result of their parents’ asso-
ciation with IS should be regarded as a vital concern of the international com-
munity, both in terms of the threats to the development of the children
themselves and the dangers they pose to regional and international security
and stability. Indeed, the latter issue raises questions as to whether a policy
of non-repatriation can be considered consistent with international legal obli-
gations to combat terrorism, which constitutes a threat to human rights and
democracy.
33
Today, we know that these children are victimized by a combin-
ation of various factors. Beyond the immediate dangers of survival and exist-
ence within the camps and potential recruitment into the operational arms of IS,
they face long-term challenges of discrimination and potential statelessness.
Children born in territories under the control of IS were mostly given birth
documents by the IS authorities.
34
However, the documents have never been
recognized by any Member State of the UN.
35
Many children, whether born in
or brought to the territories, have since lost one or both parents, making
29
Universal Declaration (n 26) art 25; International Covenant (n 26) art 11; Convention
on the Rights (n 11) art 11.
30
On ‘radicalization’, see C McCauley and S Moskalenko, ‘Mechanisms of Political
Radicalization: Pathways Toward Terrorism’ (2008) 20 Terrorism and Political
Violence 415; BL Smith and others, Identity and Framing Theory, Precursor
Activity, and the Radicalization Process (US Department of Justice 2016).
31
See Council of Europe Parliamentary Assembly Resolution 2263 (2019),
‘International Obligations Concerning the Repatriation of Children from War and
Conflict Zones’ Committee on Social Affairs, Health and Sustainable Development,
Provisional Version (28 January 2020) para 9.
32
S O’Neil and K Van Broeckhoven (eds), Cradled by Conflict: Child Involvement with
Armed Groups in Contemporary Conflict (United Nations University 2018) 52.
33
See UN Security Council Resolutions 1373 (2001), 1624 (2005), 2178 (2014), 2322
(2016), 2396 (2017). See also Council of Europe Convention on the Prevention of
Terrorism (CETS. No 196) (2005) art 3; Additional Protocol to the Council of Europe
Convention on the Prevention of Terrorism (CETS No 217) (2015).
This will be discussed further below.
34
R Callimachi and A Rossback, ‘The ISIS Files: Extreme Brutality and Detailed
Record-Keeping’ New York Times (4 April 2018) <www.nytimes.com/interactive/
2018/04/04/world/middleeast/isis-documents>accessed 6 July 2021.
35
Insurgent administrations are typically not recognized by states as an authority for the
human rights obligation of registration at birth. See K Hampton, ‘Born in the Twilight
Zone: Birth Registration in Insurgent Areas’ (2019) 911 International Review of the
Red Cross 513, arguing that in domestic territories not under State control, the
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determination of nationality difficult. Some states will not recognize children
born to foreign fighter fathers.
36
Thus, if nationality is to provide the route out
of the camps, many children will be in a precarious position unless there is
meaningful international commitment and effort to find solutions. Moreover,
the lack of identity and belonging presents a potential danger in that children
may seek opportunities for community, identity and significance within IS.
37
3. International Law
A. International Law of Children’s Rights
Although many states continue to shy away from it, the need to protect child-
ren’s rights and interests in all matters is reflected across the spectrum of inter-
national law and policy.
38
The obligation to protect the rights of children takes
its source from civil–political and social–economic rights enshrined in the 1966
International Covenant on Civil and Political Rights (ICCPR), and the 1966
International Covenant on Economic, Social and Cultural Rights (ICESCR).
There can be no doubt that the protection of civil and political, and socio-
economic human rights including the right to be free from torture and inhuman
or degrading treatment, right not to be arbitrarily detained, right to economic
inclusion, and right to education is an imperative component of keeping soci-
eties peaceful.
39
Of note is Article 24 of the ICCPR, which states:
1. Every child shall have, without any discrimination as to race, color, sex,
language, religion, national or social origin, property or birth, the right to
such measures of protection as are required by his status as a minor, on the
part of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have a name.
3. Every child has the right to acquire a nationality.
obligation to ensure recognition under the law should take the form of an obligation
to recognise insurgent-issued birth documents.
36
T Renard and R Coolsaet, ‘Children in the Levant: Insights from Belgium on the
Dilemmas of Repatriation and the Challenges of Reintegration’ Security Policy brief,
Egmont Royal Institute for International Relations (July 2018); Athie (n 2).
37
RF Baumeister and MR Leary, ‘The Need to Belong: Desire for Interpersonal
Attachments as a Fundamental Human Motivation’ (1995) 117 Psychological
Bulletin 497; B Beber and C Blattman, ‘The Logic of Child Soldiering and
Coercion’ (2013) 67 International Organization 65, 87.
38
Universal Declaration (n 26) arts 25(2) and 26; International Covenant on Civil and
Political Rights (n 26) arts 10 and 24; International Covenant on Economic, Social
and Cultural Rights (n 26) arts 10(3) and 13.
39
See M Denov and A Buccitelli, ‘Child Soldiers: The Challenges and Opportunities in
Addressing the Rights of Children Affected by War’ in MD Ruck, M Peterson-Badali
and M Freeman (eds), Handbook of Children’s Rights: Global and Multidisciplinary
Perspectives (Routledge 2017) 472–473.
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It is commonly accepted that the right to special measures of protection
enshrined in Article 24, belong to every child because of their status as a
minor.
40
The right to registration is considered linked to the right to recognition
as a person before the law,
41
and its denial leads to an inability to access legal
protections.
42
Under the ICCPR, derogation from the right to recognition as a
person under the law is non-derogable.
43
Similarly, the Human Rights
Committee considers that Article 24 requires states parties to adopt appropriate
measures to ensure that every child has a nationality when he or she is born,
including through cooperation with other states, and without discrimination
based on the nationality status of one or both parents.
44
Appropriate measures
have been argued as likely to encompass repatriation to the country of origin or
potential nationality is likely to be one such measure.
45
These fundamental rights have elaborately been included alongside others in
the CRC, which provides a central, normative framework for the promotion of
children’s rights. The CRC enjoys near universal ratification
46
and obligates
states parties to respect and ensure to all children within their jurisdiction
47
a
full range of civil, political, economic, social and cultural rights. It is under-
pinned by four guiding principles: nondiscrimination;
48
the best interests of
the child;
49
the right to life, survival and development;
50
and the right to be
heard.
51
The CRC contains no general derogation clause, meaning that the
rights of children are to be respected at all times, including during public emer-
gencies and armed conflict. Under the Convention, children have rights to birth
registration, names and nationality and, as far as possible, to be cared for and to
40
According to the UN Human Rights Committee, ‘the rights provided for in art. 24 of
the are not the only ones that the Covenant recognizes for children and that, as
individuals, children benefit from all of the civil rights enunciated in the Covenant.
In enunciating a right, some provisions of the Covenant expressly indicate to states
measures to be adopted with a view to affording minors greater protection than
adults.’ See The UN Human Rights Committee, ‘CCPR General Comment No 17:
Article 24 (Rights of the Child)’ UN Doc CRC/GC/1989/17 (7 April 1989) para 2.
41
ibid para 7.
42
Working Group on Enforced or Involuntary Disappearances, ‘General Comment on the
Right to Recognition as a Person before the Law in the Context of Enforced
Disappearances’ <www.ohchr.org/Documents/Issues/Disappearances/GCRecognition.pdf>
accessed 6 July 2021.
43
ICCPR art 4(2).
44
Human Rights Committee, General Comment No 17 (n 40) para 8.
45
UN Office of Counter-Terrorism and UN Counter Terrorism Center, Children
Affected by the Foreign Fighter Phenomenon: Ensuring a Child Rights-Based
Approach (2018) 61.
46
Only the USA is a nonstate party.
47
art 2.
48
ibid.
49
art 3.
50
art 6.
51
art 12. Committee on the Rights of the Child, General Comment No 5 (2003),
General Measures of Implementation of the Convention on the Rights of the Child
(arts 4, 42 and 44, para 6), CRC/GC/2003/5 (27 November 2003) para 12.
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know their parents. States are obligated to ensure those rights, especially in
cases where the child would otherwise be stateless.
52
The CRC also contains
a number of provisions aimed at protecting and maintaining family units and
connections.
53
With regard to economic, social and cultural rights, states parties
are required to be proactive and to take all possible measures
54
in providing
children with the rights to education;
55
the highest attainable standard of health,
freedom from disease and malnutrition, access to clean drinking water;
56
social
security;
57
a standard of living adequate for physical, mental, spiritual, moral
and social development;
58
and rest, play and leisure.
59
The CRC therefore
encapsulates an internationally agreed set of standards designed to protect all
children and provide for their vital needs and interests.
Internationally, there is a high level of state commitment to these standards.
They are also included within the UNCCT’s Handbook on responding to chil-
dren affected by the foreign fighter phenomenon,
60
which is directed at legal
professionals and policy makers and ‘seeks to contextualize States’ counter-
terrorism obligations under United Nations Security Council Resolutions within
the broader international human rights and humanitarian normative frame-
works’.
61
Yet, their applicability and enforceability vis-a`-vis the children in
Syrian camps, is far from straightforward in legal terms. The Committee on
the Rights of the Child has considered the situation facing the children of IS
through the state reporting procedure
62
and through its individual communica-
tions mechanism.
63
To date, very few states have included repatriation efforts
within their initial state report, and only a small number have been requested to
supply information in response to the Committee’s List of Issues.
64
Responses,
to date, have been vague and brief, and are often lost in the myriad of other
domestic issues considered via the state reporting procedure. A recent Dutch
report stated simply that ‘Dutch policy does not actively focus on repatri-
ation’.
65
The Committee’s response is forthcoming. In 2019, in its concluding
52
art 7.
53
arts 9, 10 and 16.
54
General Comment No 5 (n 51) paras 5–8.
55
arts 28 and 29.
56
art 24.
57
art 26.
58
art 27.
59
art 31.
60
UN Office of Counter-Terrorism and UN Counter Terrorism Center (n 45).
61
ibid 16.
62
Convention on the Rights of the Child (n 11) arts 44–45.
63
Optional Protocol to the Convention on the Rights of the Child on a communications
procedure, A/Res/66/139 (27 January 2012).
64
Committee on the Rights of the Child, List of Issues in Relation to the combined fifth
and sixth periodic reports of Belgium, Replies of Belgium to the List of Issues, CRC/
C/BEL/Q/5-6/Add.1 (19 November 2018) paras 80–84.
65
Committee on the Rights of the Child, Combined fifth and sixth periodic reports
submitted by the Netherlands under art 44 of the Convention pursuant to the sim-
plified reporting procedure, due in 2019, CRC/C/NLD/5-6 (7 May 2020) para 209.
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observations to Belgium on the implementation of the Optional Protocol to the
Convention on the Rights of the Child (CRC) on the involvement of children in
armed conflict, the Committee recommended that Belgium ‘promptly facilitate
the repatriation of all Belgian children, and whenever possible, their families,
regardless of age or the degree of suspected involvement in the armed conflict
and in compliance with Article 9 of the Convention’.
66
However, the nonbind-
ing nature of concluding observations and the Committee’s lack of enforcement
powers makes further action difficult should the state be unwilling to implement
the recommendation.
Under the Third Optional Protocol, the Committee considered the applic-
ability of the CRC for IS children in a 2020 Communication
67
brought against
France by the grandparents of children of French nationality who had been
taken to or born in Syria by their parents and were subsequently held in camps
in Syrian Kurdistan. It found that states of nationality have positive obligations
to protect the human rights of child nationals in Syrian camps, despite their
control by a non-state armed group.
68
This aligned with previous findings in
which the Committee affirmed the extraterritorial reach of the CRC in certain
situations,
69
a position supported by the International Court of Justice (ICJ).
70
While the decision concerned jurisdiction only, it seems likely that when it
considers the merits, the Committee will find that consequently there is an
obligation to repatriate. The position expounded in the decision is similar to
that found in a report of the UN Special Rapporteurs on the Promotion and
Protection of Human Rights while Countering Terrorism and on Extrajudicial,
Summary and Arbitrary Executions.
71
Serious doubts have been cast on the strength and coherence of the legal
reasoning in these cases, and their departure from the accepted tests of extrater-
ritoriality.
72
Neither the spatial or personal models of jurisdiction, used to test
66
Committee on the Rights of the Child, concluding observations: Belgium (2019)
(CRC/C/BEL/CO/5-6) para 50(b).
67
Committee on the Rights of the Child (n 14).
68
Committee on the Rights of the Child (n 14).
69
Committee on the Rights of the Child, ‘General Comment No 16 on State Obligations
Regarding the Impact of the Business Sector on Children’s Rights’ UN Doc CRC/C/
GC/16 (17 April 2013) para 43; Committee on the Rights of the Child, ‘General
Comment No 6 (2005): Treatment of Unaccompanied and Separated Children
Outside their Country of Origin’ UN Doc CRC/GC/2005/6 (1 September 2005)
para 28.
70
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territories, Advisory Opinion, 2004 ICJ Reports 163 (9 July) para 113; Case
Concerning Armed Activities on the Territory of the Congo (Democratic Republic
of the Congo v Uganda) Judgment of 19 December 2005, paras 216–217.
71
Extra-territorial jurisdiction of States over children and their guardians in camps,
prisons or elsewhere in the northern Syrian Arab Republic <www.ohchr.org/
Documents/Issues/Terrorism/UNSRsPublicJurisdictionAnalysis2020.pdf>accessed 6
July 2021.
72
H King, ‘The Extraterritorial Human Rights Obligations of States’ (2009) 9 Human
Rights Law Review 521, 522; A Orakhelashvili, ‘Restrictive Interpretation of Human
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extraterritorial jurisdiction, are fulfilled here as neither the camps nor the children
are under French control. Both the Committee and the Special Rapporteurs seem
to rely on a functional test to extraterritoriality, whereby states owe obligations of
protection where they are capable of providing it.
73
This is considered alongside a
series of contextual factors, such as the children’s nationality and the willingness
of the Kurdish authorities to cooperate in repatriation. Nationality is therefore a
determinative factor triggering state obligations.
74
However, as Milanovic notes,
centralizing nationality in repatriation decisions risks arbitrariness and uncer-
tainty, not least due to the lack of common approach and peculiarities of indi-
vidual legal systems on how nationality is regulated.
75
Thus, approaching
repatriation as an extraterritorial obligation appears fragile in strict legal terms.
Nonetheless, even if the legal conclusions on the basis of state obligation are
unsound, the underpinning principle, that children should be protected, provided
for and, by inference, should not be subjected to the conditions within the camps
of Syria, is one that all states are committed to by virtue of their ratification of the
CRC. Repatriation of children from Syrian camps would demonstrate commit-
ment and adherence to those principles.
B. The law on children and armed conflict
The international consensus that children should be protected and provided for is
further reflected in the international law on children and armed conflict. Indeed,
there is perhaps no other area of children’s rights so heavily regulated in inter-
national law. Under international humanitarian law, all states have an obligation
to treat the children affected by armed conflict with special respect and protection
under the customary rules of international humanitarian law.
76
Furthermore,
states have an obligation to ensure the humane treatment of detained persons,
Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights’
(2003) 14 European Journal of International Law 529, 538; R Wilde, ‘Triggering State
Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties’
(2007) 40 Israel Law Review 503; R Wilde, ‘Human Rights Beyond Borders at the
World Court: The Significance of the International Court of Justice’s Jurisprudence
on the Extraterritorial Application of International Human Rights Law Treaties’
(2013) 12 Chinese Journal of International Law 639, 663.
73
Milanovic (n 17).
74
ibid; see also L Raible’s comments in ‘Latest Developments in the Extraterritorial
Application of International Human Rights Law’ (BIICL, 17 March 2021) <www.
youtube.com/watch?v=nOQQdYXxqRU&t=5s>accessed 6 July 2021.
75
Milanovic (n 17).
76
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of International Armed Conflicts (1977) (Additional
Protocol I to the Geneva Conventions) arts 77 and 78; Protocol Additional to the
Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
Non-International Armed Conflicts (1977) (Additional Protocol II to the Geneva
Conventions) art 4(3); J-M Henckaerts and L Doswald-Beck, Customary
International Humanitarian Law - Volume I: Rules (CUP 2005) Rule 135, 479.
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including detained children,
77
respect for family life as much as possible,
78
and the
right of persons in detention to correspond with their families.
79
Similar standards
can be found in international human rights law, within the CRC, which obligates
all states parties to protect and care for all children affected by armed conflict.
80
Indeed, states parties are further required to:
take all appropriate measures to promote physical and psychological re-
covery and social reintegration of a child victim of: any form of neglect,
exploitation, or abuse; torture or any other form of cruel, inhuman or
degrading treatment or punishment; or armed conflicts. Such recovery
and reintegration shall take place in an environment which fosters the
health, self-respect and dignity of the child.
81
Important for its object and protective feature, this provision might be con-
sidered as a basis for a duty to repatriate the children associated with armed
non-state actors as the victims of conflict who need to be reintegrated with
society. While ‘reintegration’ is not the primary focus of this study, we argue
that governments’ refusal to repatriate the children linked with armed non-state
actors will deprive them of ‘the right to recovery and social reintegration’ from
the outset. Indeed, even in their responses to children associated with terrorist
groups, states are urged to treat them as victims.
82
Much of the attention on children and armed conflict focuses on children asso-
ciated with armed forces and armed groups (CAAFAG), those often termed ‘child
soldiers’. On first consideration, these frameworks might not appear relevant as
although the children under scrutiny here are connected with IS, they do not fall
within the widely accepted definition of CAAFAG.
83
Undoubtedly, there are such
children associated with IS, but they are not the focus here. However, when one
considers the vulnerability and predisposition of children in Syrian camps to future
recruitment and use by IS,
84
it is clear that these instruments too bear relevance.
Indeed, these instruments are premised on the notion that armed conflict is not
77
Geneva Conventions of 12 August 1949, Common art 3; Additional Protocol II to the
Geneva Conventions, art 5; Henckaerts and Doswald-Beck, ibid 306–308.
78
See, among other things, Geneva Convention (IV) Relative to the Protection of
Civilian Persons in Time of War (1949), art 27; Henckaerts and Doswald-Beck (n
76) 379–383.
79
See Geneva Convention (IV) (1949) arts 106 and 107; Additional Protocol II to the
Geneva Conventions (1977) art 5 (2)(b); Convention on the Rights (n 11) art 37 (c).
See also Henckaerts and Doswald-Beck (n 76) Rule 125, 445–447.
80
art 38.
81
art 39.
82
See United Nations Office on Drugs and Crime (UNODC), Handbook on Children
Recruited and Exploited by Terrorist and Violent Extremist Groups: The Role of the
Justice System (UNODC 2017) ch 2
83
Paris Principles, Principles and Guidelines on Children Associated with Armed
Forces or Armed Groups (February 2007) 2.1.
84
See S O’Neil, ‘Trajectories of Children into and Out of Non-State Armed
Groups’, in S O’Neil and K Van Broeckhoven (eds), Cradled by Conflict: Child
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only harmful for the children it impacts, but is a threat to wider peace, security and
development.
85
There is therefore a focus on preventing the future recruitment of
children into armed forces and armed groups, something which, as discussed
above, children within camps are particularly vulnerable to. Thus, under the
Optional Protocol to the CRC on Children in Armed Conflict, states parties are
obligated to take all feasible measures to prevent recruitment and use of children
by armed groups.
86
Unlike other obligations under the Optional Protocol, there is
no jurisdictional nexus in relation to this obligation. Moreover, the Optional
Protocol requires states parties to cooperate in implementation of its objectives,
including through technical cooperation and financial assistance in consultation
with relevant organizations.
87
With 171 states parties,
88
the requirements of the
Optional Protocol are binding on most countries and ought to guide states in their
efforts to address the issues under consideration here. In a similar vein, universally
ratified ILO Convention No 182 on the Worst Forms of Child Labour obligates its
Member States to prevent the worst forms of child labour,
89
including the recruit-
ment and use of children in armed conflict,
90
and to cooperate internationally to
achieve this.
91
These binding international legal instruments are bolstered by soft law sources,
which aim to facilitate the realization of CRC standards for children in practice. The
Paris Principles, primarily concerned with CAAFAG, constitute globally accepted
norms on the immediate, medium and long-term standards of best practice in re-
lation to affected children.
92
The Paris Principles make clear that prevention of
unlawful recruitment and use of children by armed groups ought to be a priority for
states and that particular attention ought to be paid to children in nonconventional
settings, such as refugee and IDP camps.
93
The Paris Principles also identify state-
lessness as a particular risk factor for recruitment or use and urge registration of all
children within the jurisdiction of a state as a means of prevention.
94
Maintaining
family unity, including extended family, is urged and institutionalization discour-
aged, where possible, due to its connection to increased vulnerability to recruit-
ment.
95
The Paris Principles are endorsed by 111 states.
96
Involvement with Armed Groups in Contemporary Conflict (United Nations
University 2018) 38–77.
85
Optional Protocol to the Convention on the Rights of the Child on the Involvement
of Children in Armed Conflict, A/Res/54/263 (25 May 2000), Preamble, para 3.
86
art. 4(2).
87
art 7(1).
88
Fiji is the latest state to ratify the OP, as of March 2021.
89
art 7.
90
art 3(a).
91
art 8.
92
Cape Town Principles and Best Practices on the prevention of the recruitment of
children into the armed forces and on the demobilization and reintegration of child
soldiers in Africa (April 1997); The Paris Principles(n 83).
93
Paris Principles ibid 14–18.
94
ibid 6.9–6.13.
95
ibid 6.33.
96
As of February 2021, 111 states had endorsed the Paris Principles.
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Evidence of the international consensus around the need to focus on chil-
dren impacted by armed conflict can be seen in the Millennium Declaration,
which includes an international commitment to assist and protect children
affected by armed conflict.
97
This was further emphasized at the Millennium
Summit, which reaffirmed the need to promote and protect the rights of
children in armed conflict, to ensure their receipt of timely and effective
humanitarian assistance, and to provide for their education, rehabilitation
and reintegration into society.
98
Moreover, the UN Security Council,
99
General Assembly
100
and Economic and Social Council
101
have repeatedly
adopted resolutions and issued reports calling for the safeguarding of child-
ren’s rights both during and after conflict, recognizing the protection of chil-
dren as a key aspect of humanitarian assistance, conflict resolution and
development.
In short, the numbers of state ratifications and endorsements of internation-
al instruments aimed at protecting children suggests a clear international con-
sensus and commitment to safeguard conflict affected children and to break
cycles of violence that threaten durable peace. Even if states do not identify
these instruments as the sources of strict legal obligations to repatriate, they
nevertheless provide uncontroversial sources upon which to base national
initiatives and international cooperation policies for repatriation. Rather
than using legal mechanisms as a means of avoiding responsibility, states
ought to focus on the principles that underpin their legal obligations and act
accordingly.
C. Repatriation in international law
The protection of nationals abroad and any necessary repatriation is often dealt
with via the law of diplomatic
102
and consular
103
relations; a broad area of law,
primarily concerned with maintaining inter-state relations.
104
The protection of
97
United Nations Millennium Declaration, A/Res/55/2/ (8 September 2000) para 26.
98
2005 World Summit Outcome, A/Res/60/1 (25 October 2005) para 117.
99
Security Council Resolutions 1261 (1999), 1314 (2000), 1379 (2001), 1460 (2003), 1539
(2004), 1612 (2005), 1882 (2009), 1998 (2011), 2068 (2012), 2143 (2014), 2225 (2015),
2427 (2018).
100
UN General Assembly Declaration, ‘A World Fit for Children’, appended to A/Res/
S-27/2 (11 October 2002); UN General Assembly Resolution, ‘Rights of the Child’, A/
Res/62/141 (22 February 2008), UN General Assembly, ‘Right of the Child’, A/Res/
63/241 (13 March 2009).
101
Report of the Economic and Social Council for 1999, A/54/3/Rev 1, Part VI
Humanitarian Affairs, paras 21–22.
102
Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into
force 24 June 1964) 500 UNTS 95, art 3.
103
Vienna Convention on Consular Relations (adopted 24 April 1963, entered into force
19 March 1967) 596 UNTS 261, art 5.
104
E Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic
Relations (4th edn, OUP 2016) 29.
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nationals and their interests is one component.
105
Thishasledtoquestionsasto
whether diplomatic protection might provide a basis for repatriation. However, its
operation is heavily dependent on state discretion;
106
formal diplomatic protec-
tion
107
is a right belonging to States and any decisions on whether and when to
take action lie with the state concerned.
108
Some national judicial decisions have
suggested that State discretion is not absolute and that executive orders can be
challenged, particularly in cases where fundamental rights are violated abroad.
109
However, diplomatic assistance has not, to date, proved a successful route to repat-
riation for children in Kurdish controlled camps. The French Conseil d’Etat rejected
claims by two French nationals for repatriation of their daughter and grandchildren
on the basis that this would necessitate intervention in a foreign territory, which is
outside its judicial remit.
110
Likewise, the Belgian Appeals Court held that Belgian
authorities, including diplomatic and consular services, have no legal obligation to
repatriate children or their mothers, overturning a decision by a lower court that the
best interests of the children required Belgium to do everything in its power to bring
them back and an order to arrange travel within 40days.
111
Thus, the law on dip-
lomatic protection, with its connection to nationality, looks unlikely to provide a
solution, but neither is its individualized nature appropriate for dealing with a col-
lective, international problem involving many thousands of people.
Interestingly, the French cases have since been the subjects of a Grand
Chamber Hearing of the European Court of Human Rights, with judgment
expected shortly.
112
The applicants allege that refusal to repatriate their daugh-
ters and grandchildren exposes them to conditions amounting to a violation of
Article 3 and a further violation of Protocol 4, para 2, the right to enter the
territory of a State of which the person concerned is a national.
113
They further
105
Vienna Convention on Diplomatic Relations (n 102) art 3(1)(c); Vienna Convention
on Consular Relations (n 103) art 5.
106
Annemarieke Vermeer-Ku€nzli, ‘As If: The Legal Fiction in Diplomatic Protection’
(2007) 18 European Journal of International Law 37-68.
107
ILC, ‘Draft Articles on Diplomatic Protection’ (6 November 2006) UN Doc A/CN.4/
L 684.
108
Vermeer-Ku¨ nzli (n 106).
109
R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs and Secretary
of State for the Home Department [2002] EWCA Civ 1598; Constitutional Court of
South Africa, Kaunda v President of the Republic of South Africa (2005) 4 South
African L Reports 235 (CC), 44 I.L.M. 173, 35; Federal Constitutional Court
(Bundesverfassungsgericht) 2 BvR419/80 (16 December 1980) 395–398.
110
Conseil d’Etat D
ecision (n 13).
111
Royaume de Belgique, Affaires
etrange` res, Commerce ext
erieur et Coop
eration
au D
eveloppement, ‘Ordonnance du 26 d
ecembre 2018 dans l’affaire Tatiana
Wielandt et Bouchra Abouallal contre l’Etat belge’ (29 January 2019); Capone
(2019) 88.
112
C Mallory, ‘A Second Coming of Extraterritorial Jurisdiction at the European
Court of Human Rights?’ Questions of International Law, 30 June 2021, 7 January
2022.
113
Press Release, Grand Chamber Hearing H.F. and M.F. v France and J.D. and A.D. v
France, ECHR 284 (2021), 29 September 2021.
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allege lack of an effective remedy by which to challenge French refusal to re-
patriate their family members, invoking Article 13. Seven Member States of the
Council of Europe (Norway, Denmark, UK, Netherlands, Belgium, Spain and
Sweden) have sought leave to intervene and leave to intervene has also been
granted to a range of nongovernmental organizations and UN bodies and the
Council of Europe Commissioner for Human Rights has submitted written
comments.
114
The level of interest and attempts to intervene are indicative of
the pressing importance of the issues presented by the ongoing detention of IS
associates and the competing interests at stake. While human rights and
counter-terrorism bodies demand the repatriation of those detained to protect
rights and prevent terrorism, States seek to prevent a judicial floodgate which
would oblige blanket repatriation on human rights grounds.
Repatriation has also been carried out in the context of post-conflict transi-
tions. Indeed, the international challenges of returning and relocating large
numbers of people displaced by conflict are not new. Numerous peace agree-
ments have included clauses providing for the right of refugees and displaced
persons to return to their homes, places of habitual residence or other part of
their country.
115
The right to return is a customary rule under international
humanitarian law.
116
It is based on the international human right of all persons
to enter the territory of the state of which they are a national, which is recog-
nized in most international and regional human rights instruments,
117
and the
notion that all displaced persons should be able to return to their homes in
safety and dignity. It includes the right to come to a country of nationality
even if the individual concerned was born abroad.
118
Return of refugees and
displaced persons is also recognized as a fundamental element of long-lasting
peace and stability within affected regions.
119
114
Council of Europe Commissioner for Human Rights (n 10).
115
See, eg, General Framework Agreement for Peace in Bosnia and Herzegovina (1996)
35 I.L.M. 89, Annex 7, art 1, Annex 6, art II.5; Final Act of the Paris Conference on
Cambodia, art 20.1, pt V, UN Doc A/46/608 (1991); Quadripartite Agreement on
Voluntary Return of Refugees and Displaced Persons [part of political settlement of
Georgia/Abkhazia conflict], Annex II, UN Doc S/1994/397 (1994). For a comprehen-
sive list, see <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule132_
sectionb>accessed 6 July 2021.
116
Henckaerts and Doswald-Beck (n 76) Rule 132, 468.
117
UDHR art 13(2); ICCPR art 12; CERD art 5(d)(ii); Banjul Charter on Human and
Peoples Rights 1969, art 12(2); American Convention on Human Rights opened for
signature 22 November 1969, 1144 U.N.T.S. 123 (entered into force 18 July 1978), art
22(5); Protocol No 4 to the Convention for the Protection of Human Rights and
Fundamental Freedoms, adopted 16 September 1963, Europ. T.S. No 46, entered
into force 2 May 1968, art 3.
118
Human Rights Committee, ‘General Comment No 27: Article 12 (Freedom of
Movement)’ UN Doc CCPR/C/21/Rev 1/Add.9 (2 November 1999) paras 11–18.
119
E Rosand, ‘The Right to Return under International Law Following Mass
Dislocation: The Bosnia Precedent?’ (1998) 19 Michigan Journal of International
Law 1091, 1136.
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When it comes to repatriating children, the international policies governing
repatriation are, at least in theory, informed by the CRC
120
and identify chil-
dren as a vulnerable group whose needs and rights must be considered in any
repatriation program.
121
The CRC, in setting out the right to family unity, also
provides for the right of the child and his or her parents to leave any country
and to enter his or her own country.
122
Serious concerns have been raised about
how child protection concerns are embedded within refugee practice and pol-
icy
123
and claims made that the interests of child refugees and asylum seekers
are an afterthought, caught in the tension between state sovereignty and hu-
manitarian imperatives.
124
In most instances, children are simply one compo-
nent of the returning community. It is not unusual for child dependents of ex-
combatants or those associated with armed forces or groups to be repatriated
along with their parents. Programs following the conflicts in Sierra Leone,
Liberia, Rwanda and DRC, and many others, involved repatriation of individ-
uals who had taken part in hostilities.
125
However, in most of these instances,
amnesty programs were established in countries of origin
126
and, sometimes
following completion of Disarmament, Demobilization and Reintegration
schemes, former combatants were received back into their countries of origin
along with their families.
These models offer little by way of example here. Repatriation programs,
which are frequently administered by the UN, require the consent of the send-
ing and receiving states. The SDF, a non-state actor, is not a sending ‘state’,
120
Considered in detail below.
121
Refugee Children: Guidelines on Protection and Care, UNHCR, 1994, Geneva;
Voluntary Repatriation: International Protection Handbook, UNHCR, 1996,
Geneva, 7.2.
122
CRC art 10(2).
123
V Digidiki and J Bhabha, Child Repatriation in the Time of Covid-19, Rethinking
Refuge (Refugee Studies Center, University of Oxford 5 June 2020) <www.rethinking
refuge.org/articles/child-repatriation-in-the-time-of-covid-19>accessed 6 July 2021.
124
V Digidiki and J Bhabha, Emergency within an Emergency: The Growing Epidemic of
Sexual Exploitation and Abuse of Migrant Children in Greece (FXB Center for Health
and Human Rights, Harvard University 2017); V Digidiki and J Bhabha, ‘Sexual
Abuse and Exploitation of Unaccompanied Migrant Children in Greece:
Identifying Risk Factors and Gaps in Services During the European Migration
Crisis’ (2018) 92 Children and Youth Services Review 114.
125
See, eg, Tripartite Agreement for the Voluntary Repatriation of Liberian Refugees
between the Governments of the Republic of Sierra Leone and the Republic of
Liberia and the Office of the United Nations High Commissioner for Refugees, 27
September 2004; ICRC, ‘Liberia/Sierra Leone: Former Liberian Fighters and their
Families Go Home, News Release 05/18 (4 April 2005).
126
Peace Agreement Between the Government of Sierra Leone and the Revolutionary
United Front of Sierra Leone, UN SCOR, Annex 15, UN Doc S/1999/777 (1999);
International Justice Resource Center, ‘DR Congo Parliament approves New
Amnesty Law for Insurgency and Other Crimes, as Part of Agreement with M23
Rebel Group’ (10 February 2014) <https://ijrcenter.org/2014/02/10/dr-congo-parlia
ment-approves-new-amnesty-law-for-insurgency-and-other-crimes-as-part-of-agree
ment-with-m23-rebel-group/>accessed 6 July 2021.
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although it has conveyed its willingness to assist in the repatriation of women
and children to their countries of nationality and, indeed, has facilitated return
in a number of cases.
127
Moreover, many of the potential receiving states pre-
sent an obstacle to repatriation through their unwillingness to receive, certainly
in large numbers, women and children associated with IS. Pre-requisites such as
DNA testing
128
are likely to hinder smooth and timely return and also raise
questions around what will happen to children whose nationality cannot be
easily established or where there are claims of nationality to different states.
Thus, the traditional relationship between nationality and the right to return
becomes problematic in this context. Instead of acting as a conduit to return,
nationality and its dependence on national legal rules can be used by states to
exclude those considered a threat to national security and public safety.
129
Despite calls from the UN Secretary General for Member States to accept their
nationals and children born to their nationals, grant those children nationality
and take actions to prevent them from becoming stateless, including through the
issuing of appropriate documentation,
130
a number of states have instead
expended their energy on utilizing legal mechanisms to remove citizenship
131
and its related rights from a number of individuals. The rules on repatriation
under international law, with their practical dependence on and connection to
domestic considerations of nationality and sovereignty are therefore of limited
utility in formulating a solution to the issues under consideration here.
4. The reluctance to repatriate versus the repatriation imperative
As with ascertaining the numbers of foreign fighters associated with IS, it is
difficult to derive accurate figures on how many repatriations have been carried
out. States have been accused of both over and under reporting to suit their own
ends.
132
It is clear, however, that to date, national efforts to repatriate foreign
127
Autonomous Administration of North and East Syria, Executive Council, Press
Release (18 March 2021).
128
UN Office of Counter-Terrorism and UN Counter Terrorism Center (n 45) 46–49.
129
See, for instance, Begum (Respondent) v Secretary of State for the Home Department
(Appellant);Begum (on the application of Begum) (Appellant) v Special Immigration
Appeals Commission (Respondent);R (on the application of Begum) (Respondent) v
Secretary of State for the Home Department (Appellant) [2021] UKSC 7 on Appeal
from: [2020] EWCA Civ 918 (26 February 2021) <www.supremecourt.uk/cases/docs/
uksc-2020-0156-judgment.pdf>accessed 6 July 2021.
130
Key Principles for the Protection, Repatriation, Prosecution, Rehabilitation and
Reintegration of Women and Children with Links to United Nations Listed
Terrorist Groups (April 2019) 4.
131
See the Begum cases (n 129); T Laine, ‘‘‘Passing the Buck”: Western States Race to
Denationalise Foreign Terrorist Fighters’ (2017) 12 Journal of Peacebuilding and
Development 22.
132
L Hassan, ‘Repatriating ISIS Foreign Fighters Is Key to Stemming Radicalization,
Experts Say, but Many Countries Don’t Want Their Citizens Back’ Frontline (6 April
2021) <www.pbs.org/wgbh/frontline/article/repatriating-isis-foreign-fighters-key-to-
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fighter children and women have been erratic. A number of Central Asian states
have repatriated hundreds of their nationals, mostly women and children.
133
Kosovo has taken back large numbers
134
and Russia has also repatriated
many orphaned children, whose identities were confirmed by DNA analysis.
135
These efforts demonstrate the relative logistical ease with which children can be
repatriated where there is national political will to do so. Far less progress has
been made by Western states, with small numbers of mainly orphaned children
repatriated, often on an individual basis.
136
This is despite the existence of do-
mestic programs in many of these states to manage the return and monitoring of
foreign fighters and their families and for child psychiatric support.
137
Moreover, studies estimate that for the Western states reluctant to repatriate,
the actual numbers of individuals eligible are relatively small.
138
As discussed
above, this reluctance to repatriate has spurred a spate of, largely unsuccessful,
domestic legal challenges within Western European states. On occasion, deci-
sions have been made in favor of repatriation on the basis that national govern-
ments of home states are obligated under national and international human
rights law to protect children from the conditions within the camps.
139
On the
whole, however, national governments have robustly contested these legal chal-
lenges in an effort to avoid judicial decisions that would provide a blanket right
to return.
140
The roots of the reluctance of states’ authorities to repatriate the children
associated with IS lie in a series of interconnected challenges that would come
along with repatriation. These include violent extremism, foreign fighter threat
and national security of states, in conjunction with public perceptions of these
issues, which may be the initial considerations taken by states to avoid accepting
stemming-radicalization-experts-say-but-many-countries-dont-want-citizens-back>
accessed 6 July 2021.
133
Human Rights Watch, ‘Western Europe Must Repatriate Its ISIS Fighters and
Families’ (21 June 2019) <www.hrw.org/news/2019/06/21/western-europe-must-repat
riate-its-isis-fighters-and-families>accessed 6 July 2021.
134
A Gilmour, ‘The Children of ISIS Don’t Belong in Cages, Either’ New York Times (9
December 2019) <www.nytimes.com/2019/12/09/opinion/isis-children.html>accessed
19 April 2022
135
S Kajjo, ‘US-Backed Syrian Forced Hand over 34 Children of IS Fighters to Russia’
Voice of America (19 April 2021) <www.voanews.com/extremism-watch/us-backed-
syrian-forces-hand-over-34-children-fighters-russia>accessed 6 July 2021.
136
Gilmour (n 134).
137
Esprit de Justice, ‘Le Retour des Enfants de la Zone Irako-Syrienne’ France Culture
(26 May 2021).
138
Dworkin (n 7).
139
TMehra,European Countries are being Challenged in Court to Repatriate their Foreign
Fighters and Families (International Center for Counter Terrorism, 7 November 2019)
<https://icct.nl/publication/european-countries-are-being-challenged-in-court-to-repatri
ate-their-foreign-fighters-and-families/>accessed 7 January 2022; ‘IS Wife and Children
Must be Repatriated, Rules German Court’, BBC News (11 July 2019) <www.bbc.co.uk/
news/world-europe-48958644>accessed 6 July 2021.
140
Conseil d’Etat D
ecision (n 13); Hope (n 13).
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the children of IS. On the national security front, there are worries that children
who have been indoctrinated or radicalized into the IS’s extremist ideology,
may incorporate this ideology into their sense of self, their conceptions of com-
munity and their perceptions of the west.
141
It has been contended that repa-
triating such children is tantamount to importing a ticking time bomb.
142
However, deeper analysis of states’ motivations in refusing repatriation suggests
that it is perhaps not the children themselves who present the greatest concerns,
but the Pandora’s box that their repatriation may open.
143
Children can seldom
be repatriated in the absence of their mothers, where they have one, and these
women too are considered to have been radicalized, potentially constituting a
threat to the receiving state. Longer term, there are concerns that the fathers of
repatriated children could seek access to the state of repatriation in exercise of
the right to the enjoyment of family life, protected under international and
regional human rights laws.
144
This is of particular concern to Western
European states, many of which have obligations vis-a` -vis family reunification
under both the ECHR
145
and EU law,
146
as well as national statutes of family
reunification in place.
147
Refusal to repatriate may appear to provide an immediate solution to states
seeking to avoid the short and long-term domestic challenges of dealing with
those associated with IS and the threats they may pose to national security.
However, abandoning children to lives in Kurdish-controlled camps contra-
venes states’ international legal obligations on children’s rights and falls far
short of the protective purpose of those laws. Yet, international law’s depend-
ence upon and interplay with domestic laws for effective implementation, as
well as the legal uncertainty surrounding the extent to which states owe their
human rights obligations abroad,
148
make it relatively easy for states to sidestep
their obligations to children. While it is children who stand to lose most from
states’ refusal to repatriate, those children are not at the center of the decisions,
rather it is the adults with whom they are connected and the threat those adults
may pose to the national security of states that informs states’ policies on
repatriation.
141
Radicalization Awareness Network (2016), ‘Child Returnees from Conflict Zones’
Issue Paper of RAN Center for Excellence 2; C Nyamutata, ‘Young Terrorists or
Child Soldiers? ISIS Children, International Law and Victimhood’ (2020) 25(2)
Journal of Conflict & Security Law 251.
142
Renard and Coolsaet (n 36) 3.
143
Speckhard and Ellenberg (n 4) 2; Dworkin (n 7).
144
UDHR art 16(3); ICCPR art 23(1); ICESCR art 10(1); CRC arts 7–9; International
Convention on the Protection of the Rights of All Migrant Workers and their
Families, 18 December 1990, A/RES/45/158, art 44.
145
See ECHR art 8.
146
See EU Directive 2004/38/EC of the European Parliament and of the Council of 29
April 2004. See also E Guild, ‘EU Citizens, Foreign Family Members and European
Union Law’ (2019) 21 European Journal of Migration and Law 358.
147
Speckhard and Ellenberg (n 4) 2.
148
King (n 72); Orakhelashvili (n 72); Wilde (n 72).
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There have also been repeated warnings that failure to address the situation
of the camps, in a region which is unstable and in which IS remains active,
presents a serious threat to long-term international and regional security.
149
Refusal to repatriate is increasingly understood to be counterproductive to na-
tional security aims for a number of reasons. Notably, such measures can pre-
vent return, rehabilitation and reintegration of individuals who may want to
leave a violent armed group and who do not, or no longer, constitute a threat,
while conferring the risk of threat to the national security of the host states and
local populations.
150
In the case of children, extreme circumstances like hunger,
lack of access to socio-economic opportunities, poverty, abandonment, the
death of parents and family, disease and lack of even essential medical services
and the threat of violence or property confiscation leave them few choices and
compel them to involvement in extremism.
151
It is well documented that being
in chronic life conditions often leads to children (re)joining violent armed
groups as a means of escaping those conditions.
152
Exclusionist national policies
that leave children stigmatized and rejected pave the route to involvement with
criminal networks and radical groups as children seek new support networks,
within a hostile context.
153
The cycle of violence therefore continues. Thus,
there is an emerging consensus that addressing the concerns of children is cru-
cial in halting cyclical, cross-generational violence
154
that threatens long-term
peace and stability. This is not to discredit ‘national security’ as a legitimate
concern in the dilemmas around the repatriation of IS children. However, in this
context, traditional notions of national security, which are preoccupied with the
duty to protect territory and integrity of governments, must give way to a
people-centered perspective that insists that individual rights and freedoms
are no less important than the national security of states and the rights of the
individual are at least as important as the territorial integrity and sovereignty of
149
See, eg, Eleventh report on the threat posed by ISIL (Da’esh) to international peace
and security and the range of United Nations efforts in support of Member States in
countering the threat, S/2020/774 (4 August 2020).
150
See UN Counter-Terrorism Implementation Task Force Working Group on
Promoting and Protecting Human Rights and the Rule of Law while Countering
Terrorism, Guidance to States on human rights–compliant responses to the threat
posed by foreign fighters (2018) 22–23; Council of Europe Parliamentary Assembly
Resolution 2263, ‘Withdrawing Nationality as a Measure to Combat Terrorism: A
Human-Rights Compatible Approach?’ Assembly debate on 25 January 2019 (9th
Sitting) para. 8.
151
S Freeland, ‘Mere Children or Weapons of War - Child Soldiers and International
Law’ (2008) 29 University of La Verne Law Review 19, 27. See also A O
¨zerdem and S
Podder, ‘Disarming Youth Combatants: Mitigating Youth Radicalization and Violent
Extremism’ (2011) 4(4) Journal of Strategic Security 69.
152
O’Neil and Van Broeckhoven (n 32) 47.
153
Denov and Buccitelli (n 39) 473–75; O
¨zerdem and Podder (n 151) 63–80, 74.
154
C Aptel and V Ladisch, Through a New Lens: A Child Sensitive Approach to
Transitional Justice (International Center for Transitional Justice 2011) 6.
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the state.
155
In doing so, of course, the focus of security must be broadened
beyond the level of the state and shifted towards individuals.
156
Nonetheless,
difficult questions remain to be answered on how best to proceed and which
frameworks should guide decision making.
5. Charting a way forward
It is clear from the foregoing that there is no unequivocal, concrete set of
obligations under international law that require states to proactively exercise
jurisdiction to repatriate children from the SDF-controlled camps in Syria. Yet,
it is equally clear that from humanitarian, child rights and peace and security
perspectives this is a situation in urgent need of resolution. While nationality
has, to date, served as the means of ensuring repatriation, it cannot continue as
the sole route out of the camps. Beyond the complexity and time pressured
processes associated with establishing nationality, it is ill suited as a solo solu-
tion here, due to its dependence upon domestic legal systems, consequent vul-
nerability to manipulation to suit national, political priorities and likely creation
of unequal outcomes for children.
To ensure fair, consistent and effective treatment for children, a collective
response is required to respond to a problem of international consequence. The
international legal and policy frameworks on the rights of children, to which
almost all nations are committed, provide states with a basis on which to pro-
ceed. By centralizing those frameworks and the principles upon which they are
founded, rather than national security concerns and domestic political objec-
tives, priorities are altered and the rights and best interests of children become
the focus. The interests of children are not served by national policies to exclude
them, rather by international and national efforts to remove them from the
conditions in which they currently exist, to ensure their fundamental social
and economic rights and to create conditions in which the risk of their recruit-
ment into and use by armed groups is minimized.
Of course, this will raise new challenges at domestic levels. It is likely that a
child focused approach will necessitate repatriation of children with their moth-
ers, something a number of Western European states have been keen to avoid.
How best to respond to those women and how to provide the psycho-social
support that repatriated children will need require careful consideration.
Nationality may still provide a basis on which to repatriate some children.
However, by looking beyond nationality and approaching the situation from a
child rights perspective, the door is opened for states without a nationality
connection, but with an interest in protecting children and contributing to inter-
national and regional stability and security to provide a place of settlement.
155
RB Babu, ‘From National Security to Human Security’ (2016) 20(1) Journal of
International Issues 36, 40.
156
ibid 36.
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It is time for states to stop using legal frameworks as a means of avoiding the
difficulties and challenges associated with repatriation of children, embrace the
international principles that guide the treatment of children and bring an end to
this shameful period in which children have been left to suffer unimaginably as a
result of the decisions and actions of their parents.
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