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Is the EU obligated to repatriate its children from northeast Syria?

What are the legal obligations of EU member states in repatriating EU children from northeast Syria?

16 July 2020

AMMAN — “Are you a terrorist?” a woman asks a perplexed-looking five-year-old boy, filming his reaction. He looks at his mother, who laughs, both of them confused by the question and the circumstances they find themselves in, having spent over a year in al-Hol camp in northeast Syria. 

The boy in the video is one of the 750 children of European nationals stranded in camps in northeast Syria which house the women and children who were living under the rule of the so-called Islamic State (ISIS) at the time of its defeat. These are children of EU nationals who emigrated to join the self-proclaimed caliphate and either brought their young children along or gave birth during their time in Syria. 

The conditions in these camps are desperate—371 children died in al-Hol camp alone last year—and despite calls from humanitarian groups, like Save the Children and Human Rights Watch, EU states have been reluctant to repatriate children from northeast Syria. Sweden, France, Norway, Germany, Denmark and the UK have all taken back small numbers of children, but only after relatives launched media campaigns to put pressure on them. 

In April, France repatriated a young girl, Taymia, because she had a critical condition and was at risk of dying, but left her other young siblings in northeastern Syria for another two months before repatriating them. There are 270 French children still left northeast Syria.

“This is a massive humanitarian disaster, and no one is acting,” Beatrice Eriksson, the co-founder of the INGO Repatriate the Children (RTC), told Syria Direct. Eriksson, along with Gorki Glaser-Müller and Patricio Galvez, launched RTC to provide advice to governments and families on how to safely facilitate the repatriation of children from northeast Syria. 

Eriksson was intimately involved in the efforts to repatriate the grandchildren of Galvez from al-Hol camp to Sweden last year and is currently providing guidance to other Swedish families who are attempting to secure the return of their own grandchildren from Syria.

“All they need is a piece of paper with a stamp on it to take the [children] with them. They have asked the Swedish government every day since returning from Syria, but the government says no,” Eriksson said. 

What are the legal obligations of EU member states? 

In a statement to the EU subcommittee on Human Rights on June 26, the European Parliament Vice President and Coordinator on Children’s Rights, Ewa Kopacz, said that EU children in northeast Syria are “completely deprived of their basic rights… as if they’re invisible to the world,” adding that “no child should pay for his parents’ sins or inherit guilt and punishment for their parent’s actions.” 

In January, the European Parliament passed a resolution calling on member states to repatriate their children from Syria “without further delay,” citing the United Nations Convention on the Rights of the Child, which obligates signatories to prioritize and protect the well-being of children. 

The resolution also stated that not allowing children the option to return to their home country strips them of their agency, as “children are rights holders in their own capacity and hence their rights cannot be undermined by the actions of their parents.”

While in theory EU countries do not explicitly object to children returning to their countries, in practical terms they have put up a number of barriers to their repatriation. Without the consent of their home countries, the Kurdish-led Autonomous Administration of North and East Syria (AA), which controls northeast Syria and the camps there, cannot allow the children to leave.

EU countries have cited the security situation, lack of diplomatic relations with the AA, and an inability to identify the backgrounds of these children as reasons they can’t currently be returned home, according to Eriksson. However, multiple sources who were involved with previous repatriation missions told Syria Direct that these logistical concerns are easily remedied if the political will is there. 

In most EU countries, public opinion is against the repatriation of children. “In Sweden, the public debate is very harsh, lots of people are saying that these are children of terrorists and that’s why we should not help them,” Eriksson said. Pushing to bring back children has proved to be politically dangerous, as seen in Norway after the Prime Minister lost her majority after advocating to repatriate a mother and child from Syria. 

In order to avoid political backlash, some EU member states, such as Finland, have made it their policy to only repatriate orphans, claiming that mothers should be tried locally for their crimes. 

As a result, mothers in northeast Syria, many EU nationals themselves, are faced with a wrenching dilemma: give up their children and save them from the dire conditions in the camps, or keep their child with them and prevent them from returning to Europe. 

“The accusation with the Europeans is that the mothers are using their children [to secure their own repatriation], but I think we have to be fair and say that there are very few mothers that are willing to break that bond,” Dr. Anne Speckhard, the Director of the International Center for the Study of Violent Extremism (ICSVE), told Syria Direct.

“Some escaped from bad family situations and don’t want their parents to raise their kids,” she added. 

Previously, the AA has said that it would not accept the separation of children from their mothers when it comes to repatriation. Nevertheless on July 16, it indicated that its “policy is to facilitate the repatriation of orphans and children who need special health care that cannot be provided in NES,” in a statement given by Abdulkarim Omar, the co-chair the AA-foreign relations commission, to the Qamishli-based Rojava Information Center. 

The EU parliament, in its January resolution, seems to give EU member states leeway as to whether or not to keep the mother with the child when repatriating, stipulating that “children should not be separated from their parents against their will, unless such a separation is necessary for the best interests of the child,” adding that keeping children in detention camps is not “in the best interests of the child.” 

States have also argued that if the mother does not want to separate from her children, then it is not within the states’ purview to separate a family and thus they do not have an obligation to help repatriate the children. 

However, the decision to bring children into ISIS territory could constitute an abdication of parental duties or even abuse and the state should have the obligation to intervene to protect the well-being of a child, similar to the role of Child Protective Services in the US, Dr. Speckhard said. 

This means that, in theory, if the objection of the mother is the sole obstacle to repatriating children and taking them out of the horrific conditions in the detention camps of northeast Syria, the state could have the legal authority to suspend the mothers’ custody rights and supersede parental authority.  

Besides the humanitarian dimension of the issue, security risks could emerge from leaving both parents and children to languish in northeast Syria. It is plausible that once old enough, children could travel to a consulate in Erbil and claim EU citizenship, presenting a higher possibility that the ISIS ideals currently rife in the detention camps could take root in the now-mature adult, rather than if they returned as young children today. 

‘The court of public opinion is far more important than the court of law’

In order to secure the return of EU children, activists and relatives have turned to the media to stir public opinion and put pressure on governments. Eriksson described how Galvez’s pleas to bring his grandchildren to Sweden fell on deaf ears within the government until he began documenting his journey and the poor health of the children. 

In spite of public opinion being against repatriation, “When Patricio [Galvez] used media as a tool to advocate for children’s rights, many average people in Sweden realized, ‘Oh, that could have been my grandchildren,’” Eriksson said. 

The ad-hoc nature of EU member states’ approach to repatriation reflects a policy designed as a response to individual media campaigns, rather than the existence of a uniform policy for returning these children. 

Some, however, are confident that with enough media exposure, governments will begin to take a proactive stance towards the issue and independently facilitate repatriation. 

“We’re going to win this in the end because the government’s position is so profoundly wrong,” Clive Stafford Smith, a British-American human rights lawyer involved in repatriation efforts, told Syria Direct

By leaving these women and children in northeast Syria, the “Europeans are forcing the [AA] to establish a European Guantanamo in Northeast Syria, which is illegal, as Europeans have long said when the Americans were doing it,” Smith argued. 

Still, while legal obligations might be clear on paper, children without advocates do not have the capacity to obtain their rights by raising a suit in European courts. 

“When you have a legal right, the question is where is your legal remedy? [In this case], the court of public opinion is far more important than the court of law,” Smith said. 

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