Is 2021 the year for decisive steps towards repatriating the foreign children held in northeast Syria camps?

AMMAN — Last week, ten Frenchwomen went on a hunger strike to protest their indefinite detention in displacement camps in northeast Syria. “They can no longer bear to watch their children suffering in the camps,” their lawyers said. The women ask to be returned to France with their children to stand trial. 

Excluding Iraqi and Syrian nationals, an estimated 11,000 foreign nationals affiliated with the Islamic State in Iraq and Syria (ISIS) are still held in displacement camps in northeastern Syria, controlled by the Kurdish-led Syrian Democratic Forces (SDF) and governed by the Autonomous Administration of North and East Syria (AANES). The majority, around 9,000 foreign nationals, live in al-Hol camp. The remainder are held in al-Roj, a smaller, higher-security camp. Both camps are located in Hasakah province near the border with Turkey and Iraq.

Around 27,500 foreign children (including Iraqi nationals) also live in the camps; 90% are under 12 years old. So far, less than a thousand have been repatriated. On February 28, following the death of three children in a fire that broke out in al-Hol, UNICEF called for the repatriation of all children from the camps.

With rising pressure to shift the status quo, could 2021 be the year for decisive steps toward the mass repatriation of these children? And what is the state of ongoing legal efforts in this direction?

Why are repatriations increasingly urgent?

Foreign women and their children have been living in the camps since 2016, in a state of legal limbo. Several factors have fueled mounting pressure to find a solution to their situation.

Female ISIS supporters still represent a security challenge for local authorities, who are confronted with sporadic reactivations of ISIS cells and intra-group strife between “hardline” ISIS supporters and those wishing to leave the group. In 2020, at least 33 people were killed inside al-Hol camp, mostly in assassinations attributed to ISIS. Twenty more were killed in January of this year.

Furthermore, the camps are located near the advancing frontline of Turkey’s offensives. During Operation Peace Spring in the fall of 2019, concerns were raised that Western governments could lose access to detained nationals. During the operation, at least 750 ISIS affiliates escaped from Ain Issa camp. The camp is now closed, and foreign states face the prospect of an increasingly volatile situation as Turkey seems willing to renew its offensives.

In parallel, the AANES faces pressure from Arab constituents to liberate Syrian families in the camp. Since March 2020, the AANES has organized several tribal-sponsored liberation deals and announced its intention to release all Syrian internally displaced persons (IDPs) from al-Hol. Time seems opportune to consider the fate of foreign detainees.

Finally, the COVID-19 pandemic aggravates the camps’ dire humanitarian situation, where children regularly die of malnutrition and medical complications. This adds to the political cost of a festering situation and to the financial burden of running the camps. 

Can foreign ISIS supporters be tried in Syria?

Many states have been reluctant to accept responsibility for their citizens, arguing that ISIS extremists should be tried by local authorities where they committed their crimes.

“Daesh [the Arabic acronym to the terrorist group] combatants are men and women who have chosen to join Daesh and to fight in a warzone. Therefore, they should be prosecuted as near as possible to the location where they perpetrated their crimes,” a diplomatic source in the French government told Syria Direct. “Our priority has always been to fight against the impunity of the crimes committed: it is a question of security, and a question of justice for their victims.”

“The SDF have spoken of a plan to prosecute the women locally,” Letta Tayler, Associate Director of Human Rights Watch’s Crisis and Conflict Division, said at a panel organized by the Geneva-based Bulan Institute for Peace Innovations on February 26, entitled “ISIS Associates Held in Camps in Syria and State Policies Toward Women and Children.” For Tayler, this raises questions on the legality of such a procedure itself, seeing as the AANES is a non-state entity and whether the trials will comply with international human rights standards. 

“Other states don’t seem to have the will to support trials locally, and much less to [help address] the humanitarian situation in the camps,” Tayler added. “European states seem perfectly happy to outsource this issue.”

Why are foreign states reluctant to repatriate their nationals? 

Repatriation appears to be the only immediate solution to end the plight of these children. But the level of political responsiveness to this issue varies across states. 

“Since 2017, 85% of repatriations accounted are accounted by Uzbekistan, Kosovo, Russia and Kazakhstan,” Saule Mektepbayeva from the UN Office of Counter-Terrorism, highlighted at the Bulan Institute panel. 

The United States has also repatriated nearly all American nationals, but most European countries have refused to commit to large-scale repatriation, fearing political backlash if they bring back ISIS’s female supporters, while also citing security concerns. 

Instead, some have facilitated returns on a case-by-case basis, usually for orphaned or unaccompanied children. The policy has limited repatriations, as mothers are essentially asked to give up their children to get them home.  

Collectives of families have emerged, pooling legal and communication resources to shift public opinion and policy. Among these, the Canadian “Families against Violent Extremism” (FAVE), the Swedish “Repatriate the Children,” the French “Collectif des Familles Unies,” the Belgian “Moeders van Europa” and “Trini families for repatriation and integration,” which is working towards the repatriation of around 100 Trinidad and Tobago nationals. A new international collective, Families for Repatriation International, was created in late 2020. Large INGOs such as Human Rights Watch and Save the Children also lead international advocacy efforts.

Can states be legally constrained to repatriate? 

These efforts have occasionally borne fruit. In November 2019, the Higher Administrative Court of Berlin-Brandenburg ruled that Germany was obliged to repatriate a mother with her children. In December 2020, Germany and Finland repatriated 23 nationals, including adults.  

However, some states argue that repatriation is out of their hands due to security hassles, logistical obstacles or lack of diplomatic relations with the authorities in NES. 

“France is not responsible for the effective control of these territories. The current situation makes such repatriation operations extremely difficult,” the French diplomatic source highlighted.

In response, some families have moved the discussion to the international legal field.

In May 2019, a French family filed a case at the European Court of Human Rights (ECHR), the first such case against a European Council member. The Court is now assessing whether France’s jurisdiction and ability to enforce its human rights commitments apply to its citizens detained abroad. The results of the case are still pending.

The Court’s rulings are not binding on states. “Nevertheless, a favorable decision from the Court would constitute a significant step forward,” Charlotte Mancini, one of the lawyers defending the families involved, told Syria Direct. This would add media and political pressure on other European states to repatriate their nationals.

In March 2019, two similar cases involving French families were submitted to the UN Committee on the Rights of Children. In November 2020, the committee declared itself competent to examine potential violations of France’s commitments to the International Convention on the Rights of Children. Conclusions are expected in the coming months. 

By accepting the case, the committee recognized a Western state’s extra-territorial jurisdiction over nationals in the camps, highlighting states’ “positive obligation to protect the human rights of child nationals in the Syrian camps, despite the fact that these camps are under the control of a non-state armed group.”

While territorial jurisdiction is recognized by principle, extra-territorial jurisdiction must be determined based on various factors. One of the criteria leading to the Committee’s decision to accept the case is the fact that France has a degree of capacity to protect the rights of its nationals in Syrian camps, given the AANES’ express willingness to facilitate repatriations. 

According to the French diplomatic source, “France’s determination and its efforts remain as strong as ever. If opportunities arise to repatriate minor children, we will take them.” The source added that France has so far repatriated 35 children from camps in northeast Syria. 

The Committee’s recommendations are not binding for state parties to the Convention. However, “at the political level, [if France is found guilty], it would make the state’s refusal to repatriate its citizens less and less tenable,” Mancini said. 

Should the committee’s findings go against their case, the families could also present their case to other UN committees, “including the Committee on Human Rights or the Committee against Torture,” Mancini said. “However, I doubt that the Human Rights Committee would issue a contradictory decision [to that of the Committee on the Rights of Children].”