In late August 2020, the United States vetoed a UN Security Council Resolution concerning the prosecution, rehabilitation, and reintegration of foreign terror fighters (FTFs), arguing that the resolution failed to comprehensively address the issue of repatriation. On this subject, the United States stands apart from its global partners, most notably Australia, France, and the United Kingdom. While the United States repatriates and, when necessary, prosecutes American nationals who have fought for the Islamic State, as well as returning their families home, other nations have been more hesitant; seeking instead to have crimes prosecuted in the states in which they were committed, revoking the citizenship of those who had traveled to the region, and only intermittently repatriating at-risk children on a case-by-case basis.
Recent developments suggest that the legal and moral positions these states have taken against repatriation are becoming increasingly untenable, while their security and logistical arguments are becoming less convincing.
Legal Arguments for Repatriation
The states that have refused to repatriate their nationals have operated under the assumption that they have no legal obligation to do so. This assumption stems from the notion that assistance provided to nationals abroad is discretionary, rather than mandatory, a position that tends to be repeated across government publications. This position is supported to a degree by the fact that most forms of international law remain silent as to whether a national living or traveling abroad has a right to claim assistance from their home state. Instead, treaties tend to delineate the rights and obligations that the state has to provide diplomatic and consular assistance, should it wish to do so.
The exception in international law is human rights law which imposes positive obligations on states to take preventative measures to intervene where there is a risk that someone’s rights may be infringed. This obligation includes taking steps to prevent torture, inhuman and degrading treatment, sexual violence, the deprivation of liberty, flagrant denials of justice, and the imposition of the death penalty—all potentially relevant for those in detention facilities and camps in northern Syria. Until recently, however, the home nations of FTFs have contended that because their nationals are located abroad, they are outside of their jurisdiction; therefore, the state’s human rights obligations do not extend to them.
UN human rights experts have started challenging this claim. Earlier this year, a co-authored legal analysis from Professor Agnès Callamard, the UN Special Rapporteur for Extrajudicial, Summary and Arbitrary Executions, and Professor Fionnuala Ní Aoláin, the UN Special Rapporteur for the promotion and protection of human rights while countering terrorism, affirmed the extension of states’ human rights obligations to “children, women, and men detained or held in the northern Syrian Arab Republic.”
Critically, the Rapporteurs stated that “the urgent return and repatriation of foreign fighters and their families from conflict zones is the only international law-compliant response” to the complex situation. The Rapporteurs’ approach is consistent with the attitudes of the UN Secretary-General, the UN Commission of Inquiry on Syria, and the Under-Secretary-General of the United Nations Office of Counter-Terrorism. Thus, their legal case has both political and institutional support within the United Nations.
In November, the issue further came to a head when the UN Committee on the Rights of the Child, a body of independent experts with responsibility for monitoring the implementation of the UN Convention on the Rights of the Child (CRC), unanimously found that France exercised jurisdiction over a group of French children detained in camps in northern Syria ran by local Kurdish authorities. This decision makes it likely that France holds a positive obligation towards the children to protect them from human rights abuses, an obligation that may well result in their repatriation. The case represents a considerable legal breakthrough and non-repatriating states who are signatories to the CRC will also consider the Committee’s findings carefully.
The Moral Obligation of States
The precise relationship a state holds with its nationals when they are abroad remains ill-defined. One can question the extent to which the doctrine of the social contract can be sustained between parties in a globalized world. The notion of a “duty of care” has also emerged in the recent discourse, fleshing out the parameters of when assistance can be expected by a national in distress abroad. Whether part of the social contract, a duty of care, or something else entirely, the relationship between states and individuals is underpinned by a moral obligation on the part of the state towards its nationals.
In the spring of 2020, as the COVID-19 pandemic spread and borders began to close, the spectacle of that moral obligation was on full display as governments launched huge repatriation efforts to bring their nationals home. The figures for those repatriated are staggering. The United States returned over 100 thousand people, Germany 260 thousand, India over 200 thousand, Canada close to forty thousand, and the United Kingdom over twenty thousand.
While the situation of the weary backpacker in Madrid is incomparable to that of an infant born to two IS members in an unstable region, the fundamental premise of their relationship remains the same. Regardless of where their nationals may be, the home state still has a moral obligation of protection. That obligation is arguably heightened by the precarious situation in which FTFs, their wives, and, in particular, their vulnerable children find themselves. The notorious al-Hol camp in Syria, for example, is described as having some 68 thousand women and children “crammed into just 1.8sq km, in squalid and crowded conditions, in tents which flood regularly and are exposed to high winds.” The regional director of the ICRC has bluntly described it as “hell.” Last year, the inhabitants of the camps suffered from frostbite, diarrhea, rickets, and asthma. Over 500 died, 371 of whom were children. This winter will be much worse, as the UN reports medical services are “being stripped down to skeletal levels due to COVID-19.” Just as states’ demonstrated their moral duty towards their nationals during pandemic repatriation, the moral failing of many states is readily apparent in their inaction towards these vulnerable individuals.
Security Concerns
States also oppose repatriation on domestic security grounds. In particular, some governments are concerned that difficulties in obtaining and securing evidence for crimes committed by IS fighters will result in short sentences in any domestic criminal proceeding against them.
Given the horrifying nature of recent terror attacks, this security concern is particularly acute in western Europe, where the former French Prime Minister Manuel Valls has described FTFs as “ticking time bombs”. However, fear of potential attacks by repatriated FtFs must be balanced against the possibility of a mass breakout of IS fighters from their “limited detention facilities,” which could pose a larger security threat both to the region and the foreign fighters’ home states. A UN Report in February 2020 stated that “the current improvised holding arrangements for suspected ISIL fighters, supporters and dependants are hard to secure and police.” In March, the “risk of a mass outbreak” was raised in a report to Congress. Indeed, a number of prisoners rioted and escaped from one detention facility in northeastern Syria that same month. In May, military commanders cautioned that there was a longstanding policy in the IS that members would continue attempts to orchestrate break-outs from detention centers.
Logistical Challenges of Repatriation
States also argue that there are complex practical challenges to executing an effective repatriation operation. Registering births, issuing passports, and preparing reintegration programs—particularly where both parents are deceased or suspected of crimes—all prove complicated. To deliver these services, states may need to send their own consular agents or specialist workers into dangerous areas.
While difficulties persist, improved cooperation between countries facilitates current repatriation efforts. The United States has vocalized its willingness to assist other nations in repatriating their own nationals after it repatriated the last American held by the Syrian Democratic Forces (SDF). Similarly, the ICRC has noted its willingness to be involved in the repatriation process. In her joint report with Callamard and in an earlier address to the UN Human Rights Council, Ní Aoláin noted her experience of seeing effective internationally coordinated repatriation processes in operation. The solutions are there if states can muster the political will to reach out and grasp them.
It is time for a collective effort between willing states, NGOs, and the domestic authorities in northern Syria to secure the return of FTFs and their families to their home nations. Working through strategic partnerships, and commencing with the most vulnerable, steps should be taken to execute an effective return process. Those who have committed offenses should be prosecuted to the full extent possible, while children and women, themselves so often victims of cycles of violence, should be assessed, supported, and reintegrated.
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Dr. Conall Mallory is a Senior Lecturer in Law at Newcastle University (United Kingdom) and author of Human Rights Imperialists: The Extraterritorial Application of the European Convention on Human Rights. He teaches courses on international human rights and security law.
