Editor’s Note: This article offers a short summary of the origins of a recent European Court of Human Rights ruling and the stakes involved. You can read more about the ruling in the author’s previous article.
In a recent judgment, the European Court of Human Rights (ECtHR) called out France for ignoring requests by family members to repatriate their daughters and children. Three years after the military defeat of the Islamic State in Syria, thousands of foreign women and children indeed remain in de facto detention in camps run by the former Kurdish Syrian Democratic Forces. Despite the judgment, as well as a recent uptake in repatriation operations, the issue of foreigners left behind after the fall of the Islamic State’s “Caliphate” remains a major cause for concern from a humanitarian, human rights, and security perspective.
The Standstill on Foreign Women and Children Detained in Northeastern Syria
Ever since the Kurdish Syrian Democratic Forces, supported by an international coalition including the United States, France, and the United Kingdom, put an end to the reign of terror of the self-proclaimed Islamic State (ISIS) in northeastern Syria in 2019, the efforts of the local authorities and international community to rebuild and move on from the bloody conflict have been hindered by the thorny question of what to do with former ISIS fighters and followers arrested throughout the military campaign and captured en masse after the fall of its last stronghold in the Syrian town of Baghuz. While the majority of these individuals originated from the region and neighboring countries, the case of the foreign nationals who had come from farther away quickly became a reminder of the lasting complexity of the phenomenon.
The flow of foreigners who left their homes all over the world to join ISIS in its so-called Caliphate had indeed attracted a lot of attention in the early days of the rise of ISIS and throughout the conflict, as the group used its international recruits as proof of its global reach and networks across the globe—which was unequivocally unprecedented for a terrorist group. The phenomenon in turn led to major political and legal controversies in these men and women’s home countries, seen as a cause for global concern. So much so that it prompted the U.N. Security Council to take action, in a rather unprecedented move, by singling out “foreign terrorist fighters” as a uniquely dangerous threat to international peace and security in its Resolution 2178 in late 2014.
The concerns grew in the West after some of these individuals, who had traveled to and then returned from Syria, were involved in terrorist attacks in Europe, most notably in France. Preventing further attacks from such “returnees” became such an essential national security priority that, for some time, travelers to the U.K. were greeted in airports with a sign warning them about “returning fighters” who could be hiding among them. This kind of signaling participated in generating something of a paranoia that some observers described as exaggerated given the limited number of individuals actually involved. While the question of what to do with these individuals might have been addressed at one time as a regular criminal justice and counterterrorism issue, it turned into a distinctly toxic and politically sensitive one against this backdrop of public concern and media attention. So sensitive in fact that European states would often refrain from sharing with their allies what they knew or suspected about their own citizens abroad. This atmosphere of distrust was also evident in the complete lack of coordination by Western nations—especially within the EU, and despite the best efforts of the EU counter-terrorism coordinator, Gilles de Kerchove, who proved a vocal advocate for coordinated policies on the matter.
The overall situation was made even more difficult by the fact that the foreigners involved were not held in Syria by a regular government with which there could be formal negotiations, judicial cooperation, or extraditions procedures, but rather by a former non-state armed group turned breakaway local authority: the Kurdish Syrian Democratic Forces, later incorporated within the “Autonomous Administration of North and East Syria.” This involvement of a non-state actor further complicated the work of states and humanitarian organizations, especially given the hostility toward the group from Turkey—an influential NATO ally and neighboring regional power—which labeled the Kurdish groups as terrorist organizations.
The challenges posed by the situation of these foreigners, especially women and children, further came under the spotlight following an infamous, publicly broadcasted interview of 19-year-old Shamima Begum. In the interview, Begum, a British national held in the largest of the northern Syria camps, al-Hol, appealed to the British government to repatriate her, while simultaneously appearing unrepentant about having traveled to join ISIS and claiming that she was left “unphased” by the sight of severed heads during her time in the Caliphate—one of the many graphic and deliberate atrocities for which the terrorist group had become notorious. A major political controversy ensued in the U.K., with widespread condemnation of her statements, culminating in the government depriving Begum of her British nationality. Although the decision drew strong criticism, the government went ahead after unsuccessful legal challenges. This sequence of events, as well as the general public approval of the government’s firm refusal to repatriate Begum, was a blow to those advocating for the systematic repatriation of detained women and children. Although Begum’s case was the most mediatic, similar appeals were made by other women, with some appealing for their children, and not themselves, to be repatriated. As Western states were debating this issue, the Kurdish authorities themselves became increasingly vocal in calling on those states to take back their citizens—alleviating the burden already placed on the new Kurdish administration—to no avail.
In what appeared to be an attempt to circumvent political controversy, some humanitarian organizations—most notably the International Committee of the Red Cross, which was operating on the ground and had met with some of the women and children—appealed to governments to repatriate their citizens on the basis of the degrading humanitarian situation in the camp, which it described as “apocalyptic.” The overcrowded and “squalid” camps hosted as many as 70,000 people in 2019—among which 11,000 were foreigners and up to 7,000 were children—and in 2022, about 58,000 people remain in the camps. The camps provided rare visitors with a desolate sight, which deteriorated following flooding, the spread of disease, and widespread violence, including murders and tents being set on fire. These appeals prompted some states to act, with a focus on the children, and a preference for a case-by-case, and often confidential, approach. On occasion, in the face of what seemed like governments’ harmfully slow action, some private individuals took the problem into their own hands. Notably, former Pink Floyd band member Roger Waters was personally involved in the repatriation of two children to Trinidad and Tobago.
From a legal perspective, the issue was widely debated, with international lawyers, human rights advocates, and governments arguing over whether or not the law—domestic or international—had anything concrete to say about the situation. At the domestic level, some of the families of the detained women and children introduced cases across Europe, raising arguments under international and domestic law to try and force their governments to act. The initiatives sometimes proved successful. For instance, a court in Germany ruled in 2019 that the government had to repatriate a woman and three children because of the serious risks they were facing as a result of the degrading situation in the camps—forcing the hand of the authorities who had originally considered repatriating only the children. In another earlier case in Belgium in 2018, a court ordered the authorities to “do everything in its powers” to repatriate the plaintiffs, further noting that, under Belgian law, all of its citizens are entitled to consular assistance. Ultimately, however, a ruling in appeal found that the authorities were not formally obliged to repatriate the mothers and their children. Meanwhile in the Netherlands, the Supreme Court found in 2020 that the state was under no obligation to repatriate its citizens in Syria, and refused to second-guess the authorities’ assessment of the national security risk posed by the individuals concerned were they to return home. In most of these decisions, international law played a limited role and by all accounts did not provide any straightforward answers, because of various interpretations possible.
Families and advocates of repatriation found an unexpected ally in the intelligence community, within which the potential consequences of maintaining the status quo has been increasingly perceived as a much greater threat than that of bringing these individuals home. The situation has been described by some as a “ticking time bomb,” in that it has provided ISIS and its supporters with yet another convenient narrative against Western states—“see, even when you are their citizens, if you’re a Muslim they will abandon you”—and has also increased the likelihood that these women may be further indoctrinated in these camps where they are surrounded by fellow former ISIS supporters, or grow resentful toward their state of origin, even those women who originally expressed regret for joining ISIS. This risk extends to their children, who are still quite young but, if forced to remain and grow up in these camps, will most likely experience a combination of psychosocial challenges, lack of access to education, violence, trauma, and resentment—a fertile ground for the development of radical and violent ideologies. These concerns, as expressed by the intelligence community, have possibly been more persuasive than those of humanitarian or legal actors and plausibly played a significant role in turning the U.S. authorities and the Trump administration into firm advocates of repatriation. In an ironic twist, the U.S. authorities found themselves calling out European states for de facto creating their own Guantanamo.
A Toxic Political Issue and Hostile Public Opinion
In this context, and beyond the political chatter mentioned above, the arguments raised by states to justify their lack of action ranged from logistical and security concerns—claiming that they were practically unable to offer consular protection and that repatriation operations were simply too dangerous, even though many such operations had taken place smoothly—to concerns over the challenge of prosecuting women who could have contributed to the commission of crimes in Syria. While proposals have been floated on numerous occasions to create an international or regional tribunal to try individuals associated with ISIS, these efforts have not materialized. Thus, it is left to the states’ domestic criminal justice systems to investigate and try crimes committed in Syria, with all the challenges this brings about. Additionally, while some states had already criminalized the very act of traveling to ISIS-held territory, the implementation of this policy was not without challenges—especially since it could not be applied retroactively and carried only limited sentences.
Another major, and more decisive, factor had to do with just how unpopular and politically toxic repatriation was with Western public opinion. While the most outspoken critics pointed out that the individuals who traveled to join ISIS had betrayed their countries of nationality and should therefore suffer the consequences of their actions by remaining imprisoned in Syria, the general public opinion, across the political spectrum, was generally quite reluctant as well: Why should states mobilize their resources to bring home individuals who had joined a group that had become the most terrifying and violent threat to the West since al-Qaeda in the early 2000s? This sentiment was especially strong in France, after the country was hit repeatedly by deadly terrorist attacks that left its people traumatized. Therefore, of all political leaders, it came as no surprise that French President Emmanuel Macron would not want to waste any political capital on bringing home individuals perceived as even remotely associated with ISIS.
These reasons explain in part why states decided quickly to focus on the slightly less controversial question of children. Despite some commentators voicing concerns as to the security risks some of these children could pose, there was a greater consensus that children stuck in Syrian camps were victims who should be protected. Therefore, the first repatriation operations by European countries were for children. The “easiest” cases were considered to be those of orphans, for whom there was no risk of opposition from family members to being separated and no question of repatriating the mothers. On some occasions, however, states encouraged separating children from their mothers, which led to criticism from child protection workers and activists who worried that such decisions were made for political reasons and failed to adequately account for the “best interest of the child” principle. This approach was the least politically damaging one but, by all accounts, insufficient. As the issue slowly stopped making the headlines, it seems that some states—including France—recently inflected this policy by repatriating more children alongside their mothers.
This is the background against which the ECtHR’s ruling in the case H.F. and Others v. France, released on Sept. 14, was welcomed as a victory by families and human rights advocates for calling out France for ignoring the requests of two families who had asked the authorities to bring back their daughters and grandchildren who remain held in northeastern Syria. While a limited victory from a legal perspective, the judgment dealt a blow to France’s argument that the decision to repatriate was first and foremost a national security matter on which it had almost complete discretion. (For a more detailed analysis of the case, see my previous Lawfare piece).
The court only ordered France to reexamine the requests of the applicants in the case and to set up a formal mechanism to review such requests while protecting against arbitrariness in the future, thus failing to recognize a duty to repatriate per se. But it is likely that this case will serve as a blueprint for other European capitals and could therefore result, in the near future, in further repatriation operations, or at least in more systematic policies to address the issue. This would be a welcome policy change, if not an urgent one, in the wake of growing security concerns regarding the camps, no later than last week by Michael Kurilla, leader of U.S. Central Command. One would hope that the combination of these global warnings as well as this major court ruling will succeed in convincing Western governments to fix the situation before it’s too late.