Repatriation of women, children and men deemed “associated” with ISIL in North-East Syria has been a political and legal hot potato for European and other states for years. Despite incessant demands from multiple UN human rights Special Rapporteurs and the Committee on the Rights of the Child, returns from these sites of arbitrary detention and multiple other human rights violations have been inconsistent and contested. It was only a matter of time before the legal questions surrounding repatriation for Europeans would come into the crosshairs of the European Court on Human Rights (ECHR). The case of H.F. and Others v France, launched some years ago by the grandmothers of two detained children and their mothers held in Kurdish SDF camps, was decided last week with consequential implications for France and other countries. European states now find themselves with concrete and defined obligations flowing from the decision, which in practice may speed up returns, force a political reckoning, and give a much-needed push to moribund decision-making.
Most significantly, the Grand Chamber of the European Court of Human Rights condemned France for the arbitrariness surrounding its decision-making process in refusing to repatriate these women and children detained in abhorrent conditions for over four years. The Court found a lack of sufficient safeguards in the process denying them the right to return home. But this long-awaited decision on a highly sensitive issue falls short of ordering the repatriation of these individuals; it falls short of recognizing that France has outright jurisdiction over its citizens who appear to be subject to violations of the absolute prohibition of torture, cruel, inhuman or degrading treatment. At the same time, the Court appears to recognize some positive obligations in the extraterritorial context which are directly tied to the age, health, and safety of the children involved.
The lack of a clear bright line on repatriation is particularly disappointing. As our joint Special Rapporteur’s amicus brief to the Court pointed out, not following pre-existing decisions rendered by the U.N. Committee on the Rights of the Child and not expanding on elements of the Court’s own prior case law leaves hundreds of women and children at extreme risk. The Committee on the Rights of the Child went a lot further than the European Court of Human Rights by expressly recognizing jurisdiction and finding that:
“the State of the children’s nationality has the capability and the power to protect the rights of the children in question by taking action to repatriate them or provide other consular responses.”
Our amicus brief argued for a “functional” or “control of rights” approach to jurisdiction, rooted in a duty to act with due diligence and take positive steps and effective measures to protect vulnerable individuals – here women and children – located outside their countries where they are at risk of serious human rights violations or abuses. It seems clear to us that in the circumstances of North-East Syria the acts or omissions of states can positively impact on children’s human rights, particularly for rights that are essential to the preservation of values enshrined in the European Convention and most especially human dignity. This decision is an opportunity missed by the Court to affirm repatriations as an absolute obligation of State parties.
Instead, the Court split its legal approach to jurisdiction, further confusing its already complicated position on the extra-territorial application of the European Convention. Relying on Art.3 Para. 2 of Protocol 4 to the Convention–which sets out that no one shall be “deprived of the right to enter the territory of the State of which he [or she] is a national”– the Court affirms that states have positive obligations to give effect to this right. While theoretically important, this affirmation is simply unenforceable for these women and children because they are detained by a non-state actor in a territory which does not have direct consular representation. The Court made the minimal request that states improve their decision-making, but ignored the substantial evidence that European states, including France, can access this territory to take out their nationals, can direct the SDF to release them, and can materially influence the conditions of their detention.
Despite its shortcomings, the Court’s decision marks an important turning point for several reasons. First, the decision reintroduces human rights protection, lawfulness, and the rule of law into what has essentially been a legal black hole enabling unregulated refusals to repatriate women and children due to public opinion or unsubstantiated claims regarding national security. After this decision, states can no longer simply outright refuse or sit on requests for repatriation as a matter of policy – concrete action is required for those lives that are most at risk. The Court rightly clarifies that imperatives such as protecting national security are not exempt from minimal procedural safeguards to protect fundamental rights.
Second, the decision affirms that European states have an obligation to ensure robust procedural safeguards are in place to avoid arbitrariness when it comes to examining repatriation requests. The Court effectively demands that states set up a national mechanism for the review of decisions to deny requests for a return to national territory. The Court specifies that this review must be done by an independent body that provides grounds for its decision. This transparency, missing in current adjudication procedures, clearly opens up other avenues for domestic judicial review and advocacy. Where minors are involved, the Court insists that “due account” must be given to the children’s best interests, together with their particular vulnerability and specific needs.
Third, the ECHR findings clarify the obligations of state and non-state actors under international law. Here, the Court confirms that the Kurdish authorities running the camps are bound by minimum standards of treatment under international humanitarian law. The Court also proclaims clearly that all states parties to the Geneva Conventions, including the relevant states of nationality, must ensure that those authorities comply with Common Article 3, by doing everything “reasonably within their power” to put an end to violations of international humanitarian law prohibiting humiliating or degrading treatment.
Importantly, the decision brings judicial regulation to what the Court has referred to as a situation which “verges on a legal vacuum” because the only applicable law comes from the minimal protection provided by international humanitarian law. In passing its judgement, the Court affirmed what human rights experts have been documenting for years, noting that the camps’ inhabitants “were facing a real and immediate threat to their lives and physical well-being, on account both of the living conditions and safety concerns in the camps, which are regarded as incompatible with respect for human dignity.”
Finally, the ruling is critical because it applies to all 46 Council of Europe Member States, which are now obliged to bring their own practices and procedures in line with these requirements. The hope has always been that a judicial decision would encourage governments to expedite repatriation of their citizens upending domestic political costs. In a fundamental way, the decision allows European governments to do just that, while not demonstrably shifting the contested rules of jurisdiction. Given the geopolitical fluidity of this region currently controlled by various non-state armed groups, and the metastatic growth of such groups also designated as terrorist organizations, European governments can finally, through repatriation, reconcile their actions with the position that they are effectively addressing international threats to peace and security, notably terrorism and violent extremism. These security and human rights concerns should also lead them to consider solutions – including political solutions – for those many individuals who cannot be repatriated due to non-refoulement concerns.
The Court’s decision affirms what what we, together with other human rights experts, have qualified as a continuously deteriorating humanitarian situation and a rights-free zone in which thousands of men, women, and children have been arbitrarily detained for the past four years absent any legal basis or review of the legality of their detention. Importantly, the Court’s decision puts to rest myths relating to the impossibility of repatriation for security reasons due to its confirmation that European states have access to the camps and have successfully repatriated individuals in the past. All of this indicates that states do not have a strong legal basis for denying repatriation requests, particularly for vulnerable individuals who have had their fundamental rights violated for far too long.