Rumyana van Ark (TCM Asser Institute and International Centre for Counter-Terrorism at ICCT –The Hague), Faith Gordon (Monash University) and Devyani Prabhat (University of Bristol Law School).
Children are often the hidden victims in adult-dominated conflicts. This appears to be particularly the case when citizens of other states travel to an area of on-going conflict in order to participate and/or support a side in the conflict. As evidence relating to foreign fighters supportive of ISIS demonstrates, the decisions of the parents have significantly affected the position of their children who either travelled with them or were born there. Such children number in the many thousands. While the documented numbers are already high, commentators note that it is likely that these figures do not represent the full reality. The statistics may be omitting those children recently born in or currently residing in besieged, and almost impossible to access, areas. These estimated figures are also unlikely to include those who have not had their births properly recorded, those of whom the authorities have lost track, and those who were unknown to the authorities in the first instance.
To date some countries such as Australia, Belgium, France and Norway have repatriated a limited number of orphans of Islamic State fighters. However, these welcome developments mask many years of palpable reluctance on the part of states to actively repatriate their citizens, even if these citizens include children languishing in precarious conditions in camps across Syria and Iraq. While there has been some acknowledgement of the particular vulnerability of such children, in reality most affected children continue to linger in overcrowded and insecure camps. A committed engagement to uphold the rights of all of these children is still lacking in the domestic and international discourses. Enforcement of these rights requires more than just a willingness on the part of the relevant states to observe their international obligations, there needs to be a comprehensive understanding of the legal and political issues that have an impact upon the mobility and well-being of the children of foreign fighters.
One such significant legal issue concerns the preventative counter-terrorism measures applied by several states, with the dual aim of immobilising and punishing those of their citizens who are suspected of being foreign fighters. While the arguably less restrictive option of a temporary exclusion order is part of the United Kingdom’s and Australia’s counter-terrorism toolkits, deprivation of citizenship has become a staple response of the national security policies of both of these countries and more recently of other countries such as the Netherlands. Reliance on this measure seems to be particularly popular in the UK where 2017 saw an annual increase of 600% in citizenship deprivations in comparison to 2016 (14 individuals were deprived of citizenship in 2016 as compared to 104 in 2017). It is not known how many suspected IS members and/or foreign fighters are included in this figure or what the reasons are behind the deprivations.
The impact of this measure is not limited to preventing the re-entry of the individuals in question however. As poignantly illustrated by the UK’s response in the Shamima Begum case, children can become the unintended victims of a citizenship deprivation order. While this is a case at the more extreme end of the spectrum, thousands of other children continue to face complex challenges and uncertainty as to whether they will return to their country of citizenship. Regrettably, if the political discourse surrounding these children continues to be dominated by national security risk/ threat considerations, it is likely that the daily precarity these children face will continue, as well as the denial of their basic rights under international law.
In a 2019 statement, the former UK Home Secretary, Sajid Javid, asserted that such children should not suffer nor should their rights be affected or denied if a parent loses their citizenship. Yet, practice suggests that in reality this is not the case for thousands of children. The question then arises how the rights of affected citizen children – whether impacted by parental deprivation of citizenship or due to other circumstances – can be protected and placed at the core of governmental repatriation discussions? So far, however, it has been the courts rather than governments who have attempted to provide some clarity on this complex and pressing issue. Most recently, the advocaat-generaal of the Dutch Supreme Court* has advised the Supreme Court that the Netherlands does not have to repatriate 23 Dutch women and their 56 children detained in Northern Syria. This group is seeking collective repatriation as the children are not allowed to travel away from that region without adults. In general, the Dutch Supreme Court tends to follow the advice of the advocaat-generaal and thus it is likely that this group will not be repatriated. It should be noted that since the case was filed last year, some of the group have relied on people smugglers to escape the camps; their current whereabouts are unknown.
The development of this case through the courts deserves some attention. In November 2019, the Court of The Hague** initially ruled that the State should ‘make every effort’ to allow repatriation of the children. The trial judge went as far as to say that the state would be acting in a careless manner if there are no active efforts to repatriate. The conditions the children were currently living in were described as ‘appalling’ or ‘erbarmelijke omstandigheden’. However, this decision was then reversed by the Appeals Court and arguably the most significant comment by the Appeals Court was that repatriation of this group was a political choice and not a legally enforceable right. In the advocaat-generaal’s view it is the Appeals Court decision that should be upheld. Nevertheless, he has suggested that an assessment on a case-by-case basis on whether repatriation should be carried out can be considered. While he has acknowledged that the parents’ wrong choices should not be held against the affected children, a case-by case review rather than a clear general policy can result in protracted legal proceedings and prolong the uncertainty and precarity children face.
If the Dutch Supreme Court reaches the same conclusion as the advocaat-generaal, another legal avenue this group can explore is to trigger new proceedings for each individual case, facilitating a case-by-case assessment. This may lead however to additional complications aside from further drawing out the already protracted legal proceedings. Some of the comments of the advocaat-generaal suggest that there is more support for repatriation of the children alone, rather than of the children and their mothers together. While he acknowledges that in some cases the mothers may have been under the duress of their husband or partner and not in a position to refuse the travel to IS held territories, we argue that an assessment of the extent of culpability of each affected woman will only prolong the difficulties faced by the children at present. More significantly, the suggestion that a request to repatriate only the children might have had a higher likelihood of success brings to the fore a key question – what is in the best interests of the affected children in these complex circumstances? An answer to this vital question needs to reflect both the domestic framework and the relevant international standards.
The international frameworks and standards expressly advocate for the protection of children, the treatment of children as victims in these circumstances and the need for all decisions to prioritise a child’s best interests. This is clear at the level of the United Nations. As part of a coordinated interagency effort driven by the United Nations Office of Counter-Terrorism (UNOCT) a set of ‘Key Principles for the Protection, Repatriation, Prosecution, Rehabilitation and Reintegration of Women and Children with Links to UN Listed Terrorist Groups,’ were developed in order to provide practical guidance to the UN system in offering assistance to its Member States. These Key Principles reiterate that all policies and actions affecting children should be firmly based on the principle of the ‘best interests of the child’ as set out in the Convention on the Rights of the Child and that children must be seen first and foremost as victims.
According to Article 3 of the UN Convention on the Rights of the Child (UNCRC), the best interests of the child should be the primary consideration in all actions concerning children and it applies to children who are with their family members, are unaccompanied or separated from their families. Irrespective of whether a minor has left voluntarily or has been taken by family members to a conflict zone, the home state has a special responsibility to guarantee his or her safety and well-being under the Article 3 of the UNCRC. The UN High Commissioner for Refugees has stated that a ‘best interests of the child assessment’ (BIA) is a simple, ongoing procedure which should be undertaken in each individual case where decisions are to be made affecting an individual child, in the light of the specific circumstances of each child or group of children or children in general, and should evaluate and balance all elements necessary to make a decision in a specific situation for a specific child or group of children.
The principle of the best interests of the child has both an individual and a collective application. As such the decision on whether to repatriate the Dutch women and children does not have to depend on individual court proceedings and a case-by-case examination of personal circumstances. Furthermore, an individualised assessment is not a prerequisite for protecting effectively the best interests of children and where an assessment creates a delay that prolongs precarity, it should be avoided. In the present Dutch case, in the view of the advocaat-generaal, what creates the necessity for an individual assessment is the presence of, and suspected behaviour of the adults. However, if a state is to comply with its international obligations, children’s rights and well-being must not be compromised due to the bad decisions and alleged criminality of the parents. Even if women have had more active roles in some situations, individualised assessments of criminal conduct or security risks of adults should not delay the repatriation of the children who continue to remain in dismal conditions. There are ample opportunities to investigate the adults and assess whether they do indeed pose a security risks upon return. Separately, the counter-terrorism toolkits of countries such as the UK, Australia and The Netherlands do allow for continuing monitoring and partial immobilisation of those suspected of terrorism related activities before a criminal trial or after the completion of a sentence.
Further, individualized adjudication risks turning into a determination of which child is deserving enough of the legal protections from the country of their citizenship and which one is not. In this context, it is particularly important that the children’s prospective repatriation is not assessed solely through a national security lens, or a need to satisfy public opinion. A national security approach assumes, from a distance, that the children have been radicalised and that they may engage in criminal and/or terrorist activities in an unspecified time in the future. In other words, such an approach, places the affected children in pre-criminal spaces with blurred or barely existent limits on temporality. Instead of approaching the children of foreign fighters as potential future offenders or re-offenders, they should be treated as vulnerable victims, even if they are/were associated with terrorist groups through their parents. Children’s rights and rights in principle are not conferred based on whether an individual is deserving of rights. Neither should these rights be practically enforced based on the worthiness of either the parents and/or the children.
What is required
is the development of tailored systems to be put in place and qualified
practitioners to be available to holistically support returning children. The approach
of local authorities and the police, should ensure that they utilise any
safeguarding powers to protect, support the welfare and well-being of the
affected children and their families as they return back to their country of
citizenship. Such responses should not criminalise or further stigmatise the
children and their families. This is consistent with international law and the
best interests, well-being and future prospects of all children. The safe
repatriation of the Dutch children is a matter of urgency and not one of
political choice.
* An ‘advocaat-generaal’ at the Supreme Court provides independent advice to the Supreme Court. This advice or opinion is referred to as ‘conclusie’. The position and functions of the ‘advocaat-generaal’ are governed by the Wet op de rechterlijke organisatie (the Judicial Organisation Act).
** A district court covering the areas of the Hague, Gouda and Leiden with administrative, civil and criminal law jurisdictions. In the context of this particular case, the court was exercising its civil law jurisdiction.
The cover picture is an image of the Supreme Court of the Netherlands. The original can be found here.