Outline of the substantive issues
The views in this threefold case revolve around the protection of French children held in camps in the north of the Syrian Arab Republic (Syria), whose parents are allegedly associated with terrorist activities as part of ‘Islamic State of Iraq and the Levant’ (ISIL). The communications were lodged by a group of French nationals, of whom the children (hereafter ‘child victims’) are grandchildren, nephews and nieces (para. 1.2). At the time of submission, the 47 child victims were held in the camps Roj, Ain Isa and Al Hol. These camps are under the control of Kurdish forces. All children are children of French nationals. Some of the children were born in the Syrian Arab Republic, while others travelled there with their French parents at a young age (para. 1.2). Since the cases were brought before the Committee, France has repatriated eleven of the children concerned. The remaining 38 children, some of whom were as young as five years old, remained in the camps. The children found themselves detained in closed camps in what was in the UN press release referred to as ‘a war-like zone’. After the Committee adopted its views, France repatriated another 35 children (France24 2022). It is not clear whether that concerns any of the authors of the communications. There are still about 160 French children held in the camps (Human Rights Watch 2022).
On 30 September 2020 and 4 February 2021, the CRC Committee delivered its admissibility decisions in these cases in which it assumed France’s extraterritorial responsibility for the French children. On the 8th of February, 2022, the Committee adopted its views on the merits of the communications under CRC-OP3, submitted in 2019. Three members of the Committee published a joint concurring opinion.
France argued that the authors did not provide evidence that the right to life of the children was under threat. The information provided by the authors about the conditions in the camps was very general according to France and the authors did not give the exact location of some of the children (para. 2.2). France also argued that it cannot be concluded from either the CRC or the work or views of the various UN committees that States have a positive obligation to repatriate their nationals who may be at risk of inhuman or degrading treatment. Such an obligation would conflict with its sovereignty, according to France (para. 2.4).
The Committee, however, concluded that the general conditions in the camps as described by the authors, apply to all children who are being held in the camps, including the child victims in the present case, who face the same detention and living conditions as the other people living in the camps. According to the authors, the children severely lack “health care, food, water, sanitation facilities and education” and they are at risk of indoctrination (para. 3.5). The authors also argued that the child victims, most of whom are young children, are barely surviving in the prison camps (para. 6.5). These “conditions of detention”, the Committee found constitute an “imminent and foreseeable threat to the lives of the child victims” (para. 6.7). France’s failure to protect these children from these threats constitutes a violation of the right to life of these children (article 6 of the CRC; para. 6.7). The Committee also found the prolonged detention of the children under the deplorable conditions to constitute cruel, inhuman or degrading treatment or punishment, in violation of article 37(a) of the CRC (para. 6.8). Moreover, the Committee held that France “has not demonstrated that it has given due consideration to the best interests of the children in the authors’ families when assessing their requests for repatriation” (para. 6.10). The Committee concluded that France violated articles 3, 6 (1) and 37(a) of the CRC (para. 7).
The Committee subsequently held that France is under the obligation to provide the child victims with effective reparation and to prevent similar violations in the future (para. 8). More specifically, it recommended that France (in short):
(a)Provides, as a matter of urgency, an official response to each of the requests for repatriation;
(b)Ensures that the examination of these requests is in accordance with the CRC and that the best interests of the child are taken into account as a primary consideration, and the importance of preventing further violations of the rights of the child
(c)Takes urgent positive measures to repatriate the child victims, acting in good faith;
(d) Supports the reintegration and resettlement of each child after repatriation;
(e) Takes additional measures in the meantime to mitigate the risks to the lives, survival and development of the child victims while they remain in the camps.
Joint concurring opinion
Three members of the Committee – i.e. Sopio Kiladze, Luis Ernesto Pedernera Reyna and Benoit Van Keirsbilck – have submitted a joint concurring opinion. Although they agreed with the conclusion of the Committee, they argued that the case shows that the children’s right to survival has been severely compromised and that their right to development cannot possibly be realised (para. 3 concurring opinion). The Committee should therefore have found a violation of article 6(2) CRC. They also argue that it is impossible for a child to develop fully in the context of inhuman and degrading treatment (para. 4 concurring opinion). The committee members moreover found a violation of article 37(b) CRC present, as France did nothing to return the children which led to their prolonged, unlawful and arbitrary detention (para. 7 concurring opinion).
As observed by Duffy in her case note on the admissibility decision of the Committee in this case, the Committee’s views have to be seen in light of the specific circumstances of the case. The position of the children in the camps in Northern Syria is dire and their rights and interests are seriously at stake. The president of the International Committee of the Red Cross (ICRC) who visited the Al Hol camp in 2021 noted with great concern:
“This is really the place where hope is going to die. It is one of the largest, if not the largest, child protection crisis with which we are confronted today.” (tweet ICRC)
Much can be said about this case, and it is interesting to note that also within the Committee there were different views, particularly on the rights that were violated. The Committee’s majority decided to focus on the violations of article 3, 6 (1) and 37 (a) CRC only, and did not consider it necessary to examine if the same facts also constitute a violation of article 2, 6 (2), 19, 20, 24 and 37 (b) CRC (para. 7). The decision not to engage with the alleged violation of article 37 (b) CRC can be seen as quite surprising, particularly in light of the fact that committee accepted that the children are held in (prolonged) detention, which assumes that these children are deprived of their right to liberty, raising all kinds of questions revolving around the legality of the detention, as also observed by the authors of the joint concurring opinion. In the following analysis, we focus on the right to life as addressed by the Committee and the decision of the Committee’s not to engage with article 2 CRC, more specifically article 2 (2) CRC.
The right to life (art. 6 (1) UNCRC)
With this decision, the Committee expressed the view that the right to life of the child victims was violated because of the imminent and foreseeable threat to their lives. Evidence for such a threat was found in the reported deaths of other children in the camps as well as the continuing occurrence of these deaths (para. 3.8 and 6.7), and in the presence of poor living conditions, including the lack of food and water (para. 6.5 and 6.7). Given that France is aware of the life-threatening situation of these children and capable of taking action to protect these children (shown by its successful repatriation of 30 French children earlier on; para. 6.4) it has, according to the Committee, a positive obligation to protect these children from the risks to their lives and the violation of their right not to be subjected to cruel, inhuman or degrading treatment (para. 6.9). To counter these rights violations, the Committee found that France is obligated (among others) to take urgent positive measures to repatriate the child victims, acting in good faith (para. 8 c).
With these conclusions, the Committee overruled the argument of France that there is no positive obligation to repatriate its nationals “who may be at risk of inhuman or degrading treatment” (para. 2.4). It made clear that in these circumstances, evidenced by general reports, their inhuman and degrading treatment is a given and give rise to the positive obligation to repatriate. It therewith also reiterated that the right to life means more than the mere avoidance of death. It enshrines positive obligations to protect children from imminent and foreseeable threats. This judgment is compliant with the Committee’s approach adopted in General Comment No. 21 (2017) on children in street situations. The situation of children in street situations is to a certain extent comparable to those of the children in camps in the north of Syria. They are also exposed to life-threatening conditions and at risk of death due to lack of access to adequate nutrition, health care and shelter (para. 29 of General Comment No. 21). In General Comment No. 21 the Committee notes that the right to life should not be interpreted narrowly. Where one can deem the access to water and food as a social right, outside the scope of the civil right to life, the Committee made clear in this General Comment that:
“the right to life extends not only to civil and political rights but also to economic, social and cultural rights” (para. 29 of General Comment No. 21).
The Committee also argues in this General Comment that the right to life “concerns individuals’ entitlement to be free from acts and omissions intended or expected to cause their unnatural or premature death” (para. 29 of General Comment No. 21). Its view that the children in the camps ought to be protected against imminent and foreseeable threats to their lives together with the Committee’s findings that these children suffer from inhuman and degrading treatment builds on the Committee’s broad interpretation of the right to life in General Comment No. 21, which encompasses the obligation to provide the minimum conditions for a life with dignity:
“The need to protect the most vulnerable people — as in the case of street children — definitely requires an interpretation of the right to life that encompasses the minimum conditions for a life with dignity.” (para. 29 of General Comment No. 21).
Such an extensive interpretation of the right to life is also embraced by the Human Rights Committee, the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights (Tobin 2019).
Non-discrimination (art. 2 UNCRC)
Another specific issue that requires our attention concerns the fact that the children in the present case have ended up in this dire situation because of choices made by their parents, who, moreover, are associated with terrorist activities. Consequently, these children suffer from the stigma of being children from (former) terrorists, living and participating in former ISIL territories, and being a threat to national security (Sandelowsky-Bosman & Liefaard 2020, Spadro 2021). This leads international donors, including humanitarian NGOs to be hesitant in delivering aid as they do not want to be associated with providing aid to terrorists (Luquerna 2020; it should be noted that children in the camps are not totally deprived of aid, since UNICEF and the International Red Cross, among others, do deliver humanitarian aid). Moreover, the Syrian president Assad blocked aid in the territories held by his opposition (Luquerna 2020) and is not acting upon the concerns that were raised by the CRC Committee with regard to the children in these camps in 2019 (Concluding Observations on Syria 2019), which is probably also the reason why this government is not soliciting international cooperation for this aim. The unwillingness of countries, like France, to repatriate children and their mothers from Northern-Syria should also be seen in light of the stigma these children are suffering from. This raises specific issues under article 2 (2) UNCRC which aims to protect the child against discrimination “on the basis of the status, activities, expressed opinions or beliefs of the child’s parents”. We submit that the Committee could have substantiated its findings and recommended reparations more profoundly by establishing a violation of this provision. In our view, the case transpires the elements for such a finding.
How a finding on a breach of Article 2(2) UNCRC could have bolstered the findings
Equality provisions like the non-discrimination principle of article 2 UNCRC aim to prevent unequal treatment. Not all unequal treatment, however, is unlawful. To ascertain whether unequal treatment occurred, one needs to find a comparator (Fredman 2011). The obvious comparator, in this case, is the orphans who have been repatriated by France (i.e children without parents). In addition, not every case of unequal treatment constitutes discrimination, if the criteria for such differentiation are reasonable and objective (General comment No. 20 (2016) on the implementation of the rights of the child during adolescence, para. 21). It is only when these differences of treatment are unreasonable and lack an objective justification that they may be deemed discriminatory (Tobin 2019).
The children’s rights that the Committee identified as being violated (the right of children to have their best interests taken as a primary consideration, the right to life and the prohibition of torture) are relevant for all children, irrespective of their parents’ beliefs, expressed opinions or activities, which makes it hard to objectively defend unequal treatment in this particular case. In other words, a justification for unequal treatment of the children remaining in the camps (i.e. children with parents that are associated with terrorism), in comparison to those children who have been repatriated (i.e. orphans), seems to be lacking. We think this establishes prima facie that the children who have not been repatriated – including the child victims in the proceedings – have been arbitrarily treated differently in violation of article 2(2) UNCRC.
While France argued that it was not capable of protecting the child victims because of various practical reasons (among others the consent of the authorities in the north-east of Syria, the consent of the children’s mothers, difficulties in identifying the children and ensuring the security of such operations) the authors argued that the reason for inaction is that France wilfully refused to take the measures necessary to protect these children. They note that the political and religious views of the children’s parents – however reprehensible they may be – were evidently considered by France (para. 3.3 and 3.9). They maintained that other French nationals had been repatriated without there being any clear, consistent and established criteria that show why orphans should be considered more deserving of repatriation than children accompanied by their mothers, when both groups are equally at risk of violations of their rights. According to the authors, the French authorities’ decision not to repatriate the children in question violates the children’s right to non-discrimination (para. 3.4).
The authors’ position in this matter is not unrealistic. It aligns with the stigma explained above that hampers repatriation and even humanitarian aid. These sentiments are also expressed in other countries whose children face(d) similar situations, such as in the Netherlands, by Dutch politicians. During a parliamentary debate in the Netherlands, it was openly argued that the people held in these camps were all terrorists. The largest Dutch political party argued that they wish to strip them all of their Dutch nationality because the Netherlands would then not be responsible anymore for them and would not be obliged to grant them access to Dutch territory, all for the sake of Dutch national security (see transcript (in Dutch) of the parliamentary debate in 2021).
The Committee did not respond to the argument that France is capable, but not willing to act due to the political and religious views of the parents. In its views, the Committee reiterated the point made in its decisions on admissibility, that the State Party, in short, has the capability and the power to protect the rights of the children. It added that this capability was demonstrated by the fact that the State Party had in the meantime, already successfully repatriated more than 30 French children (at the time of the admissibility decisions, the number of repatriated children was lower; 17 at least) without reporting any practical difficulties (para. 6.4). The Committee thus reacted only to the practical issues raised by France, and not to the arguably more fundamental arguments raised by the authors that the selective repatriation was motivated by the political and religious views of the parents of the children who remain in the camps.
The Committee found that France has a positive obligation to protect the child victims given that France is aware of the prolonged detention of these French children in a life-threatening situation and is capable of acting. Would the Committee have established that France discriminated against these children in violation of article 2(2) UNCRC, it could have added the argument that in order to redress the disadvantage resulting therefrom, France would have to repatriate these children as well. As regards discrimination, one can think of other reparations as well; such as those addressing the children’s stigma to prevent a possible further cycle of disadvantage after repatriation, particularly concerning the stigma that children suffer from because of the activities and beliefs of their parents (Fredman 2011 and Fredman 2016). In relation to this, it is important to refer to the Committee’s recommendations that the implementation of any decision is in accordance with the Convention (para. 8(b) of the views) and to support the reintegration of the children once repatriated (para. 8(d) of the views). This implies that children themselves should also be part of that decision-making process, in a manner consistent with their evolving capacities (article 5 and 12 UNCRC).
Recent judgment European Court of Human Rights
The urgency of France becoming more actively involved in the repatriation of its children also arises from the recent judgment of the European Court of Human Rights (ECtHR or European Court) on the same matter. On the 14th of September 2022, the Court’s Grand Chamber ruled that France was in violation of article 3 (2) of the Protocol No. 4 to the European Convention on Human Rights (Protocol No. 4) in denying the French women and children on behalf of whom the case was filed, the enjoyment of the right to enter one’s own country. Although the European Court did not accept France’s jurisdiction concerning the protection of its citizens in the camps of Northern-Syria under article 3 of the ECHR (i.e. the protection against torture or inhuman or degrading treatment or punishment), it did assume a jurisdictional link with France under article 3 (2) of the Protocol No. 4. The Court found in this particular case that, in addition to the legal link between France and its nationals, there were a number of “special features, which relate to the situation of the camps in north-eastern Syria” (para. 213) and which enable France’s jurisdiction (para. 214). These special features were that the applicants had addressed a number of official requests to the French authorities for repatriation and assistance and that these requests were based on the “fundamental values of the democratic societies which make up the Council of Europe while their family members were facing a real and immediate threat to their lives and physical well-being”, bearing in mind, among others, “the extreme vulnerability of the children, in particular, in view of their age” (para. 214). In addition, the Court observed that “individuals concerned are not able to leave the camps, or any other place where they may be held incommunicado, in order to return to France without the assistance of the French authorities, finding it materially impossible to reach the French border or any other State border from which they would be passed back to those authorities” (para. 214). Moreover, the Court noted that “the Kurdish authorities have indicated their willingness to hand over the female detainees of French nationality and their children to the national authorities” (para. 214). These special features together with the fact that the respective women and children were French nationals, justified the assumption of France’s jurisdiction in the present case.
As far as France’s substantive, positive obligations are concerned, the European Court did not accept that article 3 (2) of the Protocol No. 4 constitutes a general right to repatriation for those unable to reach the State border (see similarly art. 10 (3) UNCRC; Sandelowsky-Bosman & Liefaard 2020). It did find, however, that, again in light of the exceptional circumstances of the case affecting children and with explicit reference to the CRC Committee’s statement that France must assume responsibility for the protection of French children (para. 269), France should have provided appropriate safeguards against arbitrariness resulting in the State’s failure to guarantee the effective exercise of the right to enter one’s territory. According to the Court, there must be ”a[n] [independent] mechanism for the review of decisions not to grant requests for a return to national territory” (para. 276). This mechanism should ascertain “that there is no arbitrariness in any of the grounds that may legitimately be relied upon by the executive authorities, whether derived from compelling public interest considerations or from any legal, diplomatic or material difficulties” (para. 276). More specifically, the Court notes that “[w]here, as in the circumstances of the present case, the request for repatriation is made on behalf of minors, the review should ensure in particular that the competent authorities have taken due account, while having regard for the principle of equality applying to the exercise of the right to enter national territory (…), of the children’s best interests, together with their particular vulnerability and specific needs (…)” (para. 276). In the present case, the applicants had not received any explanation for denying their requests for repatriation, but should have understood the refusal to repatriate on the basis of France’s general policy not to repatriate families from the camps in Northern-Syria (para. 279). They also did not get any information which could have contributed to the transparency of the decision-making process (para. 280). The Court furthermore held that there was no justification why the applicant’s cases could not have been assessed on an individual basis bearing in mind the specific circumstances of the case (para. 279). Finally the “jurisdictional immunity” raised against the applicants by the domestic courts, “deprived them of any possibility of meaningfully challenging the grounds relied upon by those authorities and of verifying that those grounds were not arbitrary” (para. 282).
In our view, the Committee and the ECtHR have both shown moral and legal courage in challenging the existing boundaries of jurisdiction and defining the obligations of a State towards its children, who find themselves detained in camps, under extremely challenging conditions, far away from the State’s territory. France, of course, cannot be blamed for the specific circumstances in the camps, but it has a duty to do its utmost to protect these children and to avoid these children continuing to be the victims of serious and life-threatening rights violations.
We do think, however, that the plight of the (remaining) child victims in the camps merits a strong, substantial stance, as reflected in the views adopted by the Committee. The Committee found explicitly that France is under a positive obligation to protect the children from the risks to their lives and the violation of their right not to be subjected to cruel, inhuman or degrading treatment (para. 6.9) and that France is therefore obligated (among others) to take urgent positive measures to repatriate the child victims (para. 8 c). The European Court, on the other hand, adopted a procedural approach, stressing the need for certain procedural requirements when the right to enter the territory of which one is a national is implicated. France is ordered by the European Court to re-examine the requests to enter French territory, while ensuring appropriate safeguards against arbitrariness. We assume that this judgment boils down to repatriation anyway. The right to enter one’s own country is absolute (ECtHR Judgment, para. 248). Considering the absolute nature of this right, what procedural safeguards would reasonably weigh up against de facto exile where the mothers and children find themselves in? Even a perfect procedure resulting in non-repatriation is still at variance with this absolute right (see also the concurring opinion of judges Pavli and Schembri Orland). We, therefore, think – especially regarding the most vulnerable camp detainees, the child victims – that the formulation of concrete positive obligations beyond procedural requirements would have been more justified, as the Committee did, in requiring France to take urgent positive measures to repatriate the children. In our view, the Committee takes a more child-sensitive approach, which can also be seen in its admissibility decisions where it explains that France has jurisdiction over the children by underscoring that “the State Party was informed by the authors of the situation of extreme vulnerability of the children, who were detained in refugee camps in a conflict zone” (para. 9.7 of the case on admissibility). This concerns a crucial element in the motivation to accept jurisdiction with regard to the child victims. The European Court referred to the increased mobility of people and globalisation as one of its reasons to accept jurisdiction, but is it not the adoption of a passive general policy (i.e. that individual requests for repatriation will not be examined) in the full knowledge of the “extreme vulnerability” of the child victims that is more pressing to highlight in this context? Humanity has been on the move as long as it exists, yet the phenomenon that States de facto close their borders to vulnerable people is relatively recent in the long history of humanity. A phenomenon the international community hoped to have banned for good with human rights provisions like article 3 (2) of the Protocol No. 4 (ECtHR Judgment, para. 210).
However, both the CRC Committee’s views and admissibility decisions and the judgment of the European Court, confirm that States can no longer hide behind the walls of jurisdiction when it comes to protecting the most vulnerable individuals in the most challenging circumstances. Even if no general right to repatriation can be derived from international human and children’s rights law, at least each child is entitled to an individualized assessment, which takes into account the child’s rights and best interests, which moreover is subject to review by an independent authority. This not only underscores the significance of access to justice for children (Liefaard 2019), it also aims to ensure that international human rights law, including the concept of jurisdiction, connects better to the contemporary phenomena of increasing globalisation and international mobility (ECtHR Judgment, para. 210-211) and requires a child-sensitive approach. This is vital in situations where children’s lives are put at risk and States do not seem to care.