The European Court tackles the thorny issue of the repatriation of families from northeast Syria
The repatriation of women, children and men considered “associated” with ISIL in northeast Syria has for years been a political and legal hot potato for European and other states. Despite the incessant requests of several United Nations Special Rapporteurs on Human Rights and the Committee on the Rights of the Child, reports of these arbitrary detention sites and multiple other human rights violations have been inconsistent and contested. It was only a matter of time before the legal issues surrounding the repatriation of Europeans came into the crosshairs of the European Court of Human Rights (ECHR). The affair of HF and others against France, launched a few years ago by the grandmothers of two detained children and their mothers detained in Kurdish camps of the FDS, was decided last week with consequent implications for France and other countries. European states now find themselves with concrete and defined obligations flowing from the decision, which, in practice, can accelerate returns, force a political settlement and provide a much-needed boost to moribund decision-making.
More importantly, the Grand Chamber of the European Court of Human Rights condemned France for the arbitrariness which surrounded its decision-making process by refusing to repatriate these women and children detained in abominable conditions for more than four years. The Court concluded that there were no sufficient safeguards in the process denying them the right to return home. But this long-awaited decision on a very sensitive issue fails to order the repatriation of these individuals; it does not recognize that France has absolute 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 seems to recognize certain positive obligations in the extraterritorial context which are directly related to the age, health and safety of the children concerned.
The absence of a clear, clear line on repatriation is particularly disappointing. As our Joint Special Rapporteur amicus brief According to the Court, failure to follow pre-existing decisions made by the UN Committee on the Rights of the Child and to elaborate on elements of the Court’s previous jurisprudence exposes hundreds of women and children to extreme risks. The Committee on the Rights of the Child has gone much further than the European Court of Human Rights by expressly recognizing its jurisdiction and ruling that:
“the State whose nationality the children have has the capacity and the power to protect the rights of the children in question by taking measures to repatriate them or by providing other consular responses”.
Our amicus brief argued for a ‘functional’ or ‘rights check’ approach to jurisdiction, rooted in the duty to act diligently and take positive and effective action to protect the vulnerable – here women and children – located outside their country where they are at risk of serious human rights violations or abuses. It seems clear to us that in the circumstances of north-eastern Syria, the acts or omissions of States can have a positive impact on the human rights of children, in particular for the rights which are essential to the preservation of the values enshrined in the European Congress and above all human dignity. This decision is a missed opportunity for the Court to affirm repatriations as an absolute obligation of States Parties.
Instead, the Court split its legal approach to jurisdiction, further confusing its already complicated position on the extraterritorial application of the European Convention. Invoking art.3 al. 2 of Protocol 4 to the Convention – which provides that no one may be “deprived of the right to enter the territory of the State whose [or she] is a national” – the Court asserts that States have positive obligations to give effect to this right. While important in theory, this assertion is simply inapplicable for these women and children because they are being held by a non-state actor in a territory that has no direct consular representation. The Court asked states to at least improve their decision-making, but ignored substantial evidence that European states, including France, can access this territory to smuggle their nationals out, can order 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 the protection of human rights, legality and the rule of law into what was essentially a legal black hole allowing unregulated refusals to repatriate women and children due to public opinion. or unsubstantiated national security allegations. After this decision, states can no longer simply refuse outright or sit on repatriation requests as a policy – concrete action is needed for the lives most at risk. The Court rightly clarifies that imperatives such as the protection of national security are not exempt from minimum procedural safeguards to protect fundamental rights.
Second, the decision affirms that European states have an obligation to ensure that strong procedural safeguards are in place to avoid arbitrariness when considering repatriation requests. The Court in fact asks States to set up a national mechanism for reviewing decisions to reject requests to return to national territory. The Court specifies that this re-examination must be carried out by an independent body which justifies its decision. This transparency, which is lacking in current judicial proceedings, clearly opens up other avenues for judicial review and advocacy at the national level. Where minors are involved, the Court insists that “due consideration” must be given to the best interests of the child, as well as their particular vulnerability and specific needs.
Third, the findings of the ECHR 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 clearly proclaims that all States parties to the Geneva Conventions, including the States of nationality concerned, must ensure that these authorities respect common Article 3, by doing everything “reasonably within their power” to put an end to the violations of international humanitarian law. law prohibiting humiliating or degrading treatment.
It is important to note that the decision brings judicial regulation to what the Court described as a situation which “borders on a legal vacuum” because the only applicable law derives from the minimum protection offered by international humanitarian law. In delivering its judgment, the Court confirmed what human rights specialists documented for years, noting that camp residents “faced a real and immediate threat to their lives and physical well-being, due to both the living conditions and the security challenges in the camps, which are considered incompatible with respect for human dignity.
Finally, the decision is essential because it applies to everything 46 member states of the Council of Europe, which are now required to bring their own practices and procedures into line with these requirements. The hope has always been that a court ruling would encourage governments to expedite the repatriation of their citizens, which would increase domestic political costs. In a fundamental way, the decision allows European governments to do just that, without obviously changing the disputed jurisdiction rules. Given the geopolitical fluidity of this region currently controlled by various non-state armed groups, and the metastatic growth of such groups also labeled as terrorist organizations, European governments can finally, through repatriation, reconcile their actions with the position they actually occupy vis-à-vis the international community. threats to peace and security, including terrorism and violent extremism. These secureSecurity and human rights concerns should also lead them to consider solutions – including political solutions – for the many people who cannot be repatriated due to non-refoulement issues.
The Court’s decision confirms what we, along with other human rights experts, have qualified as an ever-deteriorating humanitarian situation and a zone of no rights in which thousands of men, women and children have been arbitrarily detained over the past four years, without any legal basis or control of the legality of their detention. Importantly, the Court’s decision puts an end to myths about the impossibility of repatriation for security reasons due to its confirmation that European states have access to the camps and have successfully repatriated people in the past. . All of this indicates that States lack a strong legal basis to deny requests for repatriation, especially for vulnerable people whose basic rights have been violated for far too long.
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