On 20 November 1989, States ratified what would become the most widely ratified human rights treaty in history, the United Nations Convention on the Rights of the Child (UNCRC). Its Article 3 establishes the best interests of the child as a primary consideration in all actions concerning children. However, 35 years after its adoption, we are still witnessing difficulties in implementing this principle. One example is the 30,000 children of former ISIS fighters who, ten years after the defeat of ISIS, still remain detained.
Some 29 detention centres and camps for former ISIS fighters, where the majority of those detained are women and children, in the north-eastern region of Syria are a fertile environment for ISIS for further radicalisation and recruitment of new members. It is in this light that UN experts continue to urge States to ‘repatriate women and children from squalid camps’. However, European States remain reluctant to repatriate their nationals, concerned about the potential impact on public safety.
As a result, sources indicate (see here and here) that still around 56,000 persons from an estimated 74 countries are held in detention. The majority of those detained are children, most of whom were born during the ‘ISIS caliphate’ and who remain imprisoned under inhumane conditions, and at high risk of sexual violence, trafficking and recruitment as child soldiers.
The objective of this post is to shed light on the alleged reasons why (European) States – with a few exceptions – still largely refuse to repatriate children of their nationality. The issue is being explored in light of a recent decision by the Austrian Federal Administrative Court (BVwG) from 10 October this year, which ruled for the first time that the Austrian government is obliged to repatriate an Austrian woman with her two minor children from the infamous Al-Hol detention camp. The BVwG is therefore likely to be one of the first European domestic courts ruling on the issue of repatriation in light of the recent European Court of Human Rights (ECtHR) decision in H.F. And Others v. France.
As a reminder, in H.F. And Others v. France, the ECtHR Grand Chamber had to clarify for the first time the scope of Article 3(2) of Protocol No. 4 to the European Convention on Human Rights (ECHR). The Court did so in the context of an application for the repatriation of French nationals and their children from Syria. Although the ECtHR declined jurisdiction with regard to a violation of Article 3 and 8 ECHR (paras 198-203), the Court held that the French nationals and their children were within the jurisdiction of the respondent State for the purposes of Article 3(2) of Protocol 4 of the ECHR and found that in exceptional circumstances, this provision triggers positive obligations on the State of nationality with regard to a ‘right to return’ (para 216, for a review of the judgment see Professor Pijnenburg).
The particularities of the case
Similar to H.F. And Others v. France, the Austrian case concerns an application for the repatriation of a 27-year-old Austrian national, Maria G., and her two minor boys, aged 6 and 8, from the Al-Hol camp. Contrary to H.F. And Others v. France, Austria did not refuse repatriation per se. In fact, Austria had already demonstrated its willingness and ability to carry out repatriations from Syrian detention camps by returning four children in the past. Instead, the authorities in this case offered repatriation, but only for the two children. With regard to the mother, the authorities refused to repatriate her together with her children. As the mother did not agree to the children being returned without her, the repatriation of the children ultimately failed.
Looking at the reasons for the Austrian government’s refusal to return the mother, the main argument put forward was that the ECHR does not provide for a general legal right to return. The ECtHR in H.F. And Others v. France indeed did not recognise such a ‘general right to repatriation on the basis of the right to enter national territory’ (para 259). However, this is only half the story, as the ECtHR in H.F. And Others v. France did find that Article 3(2) of Protocol 4 imposes, in exceptional circumstances, a ‘positive obligation on the State where, in view of the specificities of a given case, a refusal by that State to take any action would leave the national concerned in a situation comparable, de facto, to that of exile’ (para 260).
However, Austria maintained that comparisons with the case of H.F. And Others v. France were misleading as Austria had provided consular assistance to Maria G. and her children, in contrast to the complete inactivity of the French authorities. It is true that Austrian authorities regularly requested updates on the applicant’s state of health and also reacted when necessary. For example, the Austrian authorities demanded a heater for the complainant’s tent to combat her child’s chronic bronchitis.
However, in a similar vein to the argument put forward by the French Government before the ECtHR, Austria pointed out that, since the applicant is in detention, the issue is not one of repatriation but of extradition. The Austrian Government also argued that by voluntarily travelling to Syria and joining the terrorist organisation, the applicant must have been aware of the risks, the consequences of which she now has to bear herself. Finally, the Austrian Government argued that repatriation would not only endanger the personnel who would have to carry out such a mission, but that repatriation of former ISIS supporters as a whole would also pose a general threat to public safety.
The best interests of the child
The question of the best interests of the child played a prominent role before the Austrian BVwG. The complainant’s main argument was that the best interests of the child dictate that the children should be returned with their mother. Interestingly, two of the government’s arguments against the repatriation of Maria G., namely that repatriation is not possible because of the war zone in which the detention centre is located and that any repatriation would endanger the personnel, were only raised in relation to the mother’s repatriation, not with regard to her children.
The recent jurisprudence of the Committee on the Rights of the Child (CRC) in L.H. et al v. France (communications No.79/2019 and No. 109/2019, CRC/C/85/D/79/2019–CRC/C/85/D/109/2019) made clear that the UNCRC also applies extraterritorially and therefore State parties that are effectively able to prevent the prolonged detention of children by repatriating them have a ‘positive obligation to protect these children from an imminent risk of violation of their right to life and an actual violation of their right not to be subjected to cruel, inhuman or degrading treatment’ (para 6.9, critical towards the extraterritoriality holdings of the CRC see Prof Milanovic).
The applicant also brought forward the jurisprudence of the CRC before the BVwG. However, Austria responded by declaring that it regards the UNCRC or the decisions of its Committee – unfortunately, this is not entirely clear from the judgment – as merely ‘legally non-binding recommendations’. As this point of view would be fine with regard to the CRC’s jurisprudence (with some exceptions), it would be a surprising assessment of the legal character of the UNCRC itself. Although it is true that the direct application of the Convention was excluded by the Austrian legislator at the time of its ratification, key provisions of the convention, including the best interests of the child principle, and the child right to protection from violence have been implemented into Austrian (constitution) law with the Federal Constitution Law on the Rights of the Child in January 2011.
According to its Article 1 and mirroring Article 3 UNCRC, all public authorities must take the best interests of the child as a primary consideration into account. In the case of Maria G. and her rejected repatriation request, this would have meant describing how the best interests of the child have been examined and assessed, and what weight has been ascribed to them in the decision. It is clear from the arguments put forward by the Government that also Austria considers that the best interests of the child are best served by repatriating them. However, the refusal to return the children together with their mother is not seen as a violation of the child’s best interests.
In this context, General Comment 14 of the CRC as well as Article 9 UNCRC must be taken into account, according to which the preservation of family unity is regarded as a pivotal element of the child protection system. Consequently, Austria would have to demonstrate that the separation of the mother would be in the best interests of the children. Given that the mother is the only remaining attachment figure for the children (both fathers are presumed to be deceased), such a demonstration seems unlikely, as separation from their mother would mean the loss of the only remaining person with whom they have a strong and probably the only emotional bond. This is particularly pertinent given that the children were born in Syria and have not yet had any contact with their closest relatives in Austria, namely their grandparents. Furthermore, returning the children alone would likely also result in a total loss of contact with their mother, as mobile phones are prohibited in the detention camps and the mother would therefore only have very sporadic contact with the outside world. Therefore, the children would de facto be deprived of their right to maintain personal relations and direct contact with their mother on a regular basis.
Triggering the jurisdiction of the ECHR
Moreover, it is debatable whether repatriating the children without their mother to Austria would, as a consequence, not anyway also result in the obligation of the Austrian government to repatriate in a second step also their mother. It is true that in the case of H.F. And Others v. France, the ECtHR ruled that the repatriation of individuals detained in Syria cannot be based on Article 3 or Article 8 of the ECHR, as neither the spatial nor the personal models of jurisdiction of the ECHR apply. Nevertheless, the repatriation of children to Austria would ultimately result in the territorial jurisdiction of the ECHR being triggered, thereby enabling the application of family reunification based on Article 8 ECHR, which guarantees the right to family life, including the duty of the authorities to take measures facilitating ‘family reunification as soon as reasonably feasible’ (e.g. Strand Lobben and Others v. Norway, para 205).
Naturally, there remains room for interpretation of what ‘reasonably feasible’ implies with regard to repatriations. This might also depend and vary on the security situation on site. However, as it is currently the case that repatriation actions are coordinated and conducted by States like the USA with the assistance of international organisations, the active role of States such as Austria is typically limited to agreeing with the local authorities running the camps to repatriate their nationals as well as providing valid entry documents.
Gender and age-related sensitives
Furthermore, and as emphasised in UN Security Council Resolution 2396 (2017), it is imperative to consider the gender and age-related sensitivities. The applicant was herself a minor when she decided to travel to Syria and join ISIS. Beyond supporters, facilitators, and perpetrators, spouses of ISIS fighters have also themselves been victims of the terror group’s actions, including all forms of sexual violence. At no time was it possible for women, including the applicant, to depart from the area controlled by ISIS on their own. Consequently, the only viable option for women to return to their country of origin is a State-organised repatriation.
Finally, it cannot be ruled out that Maria G., like so many other women, was herself trafficked into ISIS-controlled territory. Therefore, the Austrian government should take into account the CoE Convention against Trafficking in Human Beings, which provides for its member states, such as Austria, the obligation to support the return of victims of human trafficking (Article 16) as well as the non-punishment provision of Article 26.
