I. INTRODUCTION
Since 2011, several parallel international and non-international armed conflicts have been ongoing in Syria.Footnote 1 A number of organised non-State armed groups, including the Syrian Democratic Forces (SDF), the Free Syrian Army, the Islamic State (also known as ISIS, ISIL or IS), and various jihadist groups have been engaged in fighting against one another, the government, or both on Syrian territory.
The Self-Administration is an autonomous region established in 2014 by the Kurdish minority in the North-East of Syria.Footnote 2 The Self-Administration, which currently embraces over one-third of the Syrian territory, reflects the military advances of the SDF,Footnote 3 an armed group formed by an alliance of various groups and led by the Kurdish People's Protection Units and Women's Protection Units, which are its largest components.Footnote 4 In March 2019, with the support of the US military, the SDF managed to eradicate the territorial presence of ISIS in Syria.
During its campaign against ISIS, the SDF captured over 2,000 ISIS fighters, whom they now hold in makeshift prisons, and forced the rest of the inhabitants of the previously ISIS-controlled areas— mostly spouses and children of fighters themselves suspected of being affiliated with ISIS—into heavily guarded camps for internally displaced persons, which are in reality detention centres from which they are not allowed to leave.Footnote 5 At one point in 2019, the largest of these camps, Al Hol, was estimated to house over 70,000 women and children in very poor conditions,Footnote 6 and the smaller camp of Al Roj housed over 1,800 people.Footnote 7 While most of those held at Al Hol are either Iraqi or Syrians, thousands of others, from over 50 other countries, are held in a separate section for foreigners, to which humanitarian actors and journalists have only restricted access.Footnote 8 The safety and fate of the thousands of detainees in North-East Syria was further jeopardised by the withdrawal of US troops which was followed by operation ‘Peace Spring’, launched by Turkey in October 2019 with the aim of establishing a 30-kilometre-wide ‘safe zone’ along the Turkish–Syrian border.Footnote 9
The detainees are unwanted by both the Kurdish authorities and their home countries. Several Eurasian States have repatriated their nationals, mostly women and children, but many other States refuse to do so.Footnote 10 The domestic courts of several European States have been seized by women currently detained in the camps in North-East Syria, asking their States of nationality to repatriate them and their underage children.Footnote 11 Decisions so far have varied greatly in terms of outcomes and of reasoning. This article analyses the decisions taken in two cases: by the Brussels Tribunal of First Instance and the Brussels Court of Appeal (the Belgian case)Footnote 12 and by the District Court and Court of Appeal of The Hague, as well as the Dutch Supreme Court (the Dutch case).Footnote 13
After summarising the findings of the Belgian and Dutch courts in these two cases (Sections II and III), this article analyses the international law issues which arose. Section IV(A) shows that individuals have no right to receive consular assistance from their State of nationality under international law. Section IV(B) argues that only an unduly broad reading of the extraterritorial reach of human rights treaties could lead to the conclusion that the States of origin of the plaintiffs have jurisdiction over them whilst they are detained in North-East Syria. Section IV(C) considers whether, alternatively, the right to return to one's own country implies an individual right to be repatriated. The article concludes that, while individuals have no right to be actively repatriated, there are good reasons, informed by human rights and other considerations, why States should exercise their prerogative to do so and repatriate them.
II. THE BELGIAN CASE
A. Background
This case was filed before the Tribunal of First Instance of Brussels by the plaintiff, on behalf of herself and her two children. In 2015, the plaintiff, who is a Belgian national, travelled to Syria where she became married and had a child. After the child's father died, the woman was forced to marry another man. While the plaintiff was pregnant again she and her second husband were arrested by the Kurdish authorities. The plaintiff gave birth to her second child while detained in Al Roj, where she is still held together with both children.Footnote 14 The plaintiff is the object of an international arrest warrant for participating in the activities of a terrorist group.Footnote 15 She seeks to be repatriated to Belgium together with her children.Footnote 16
The first instance judge held that Belgium should repatriate the plaintiff and her two children. The decision was reversed on appeal.
B. Findings on Consular Assistance under International and Domestic Law
The plaintiff claimed that under Articles 5 and 36 of the Vienna Convention on Consular Relations (VCCR), as well as under the Belgian Consular Code, she and her children have a subjective right to receive consular assistance. The State argued that Belgian nationals do not have an individual right to consular assistance which is directly enforceable by them against the Belgian State.Footnote 17 According to the Tribunal, under international law the right to consular assistance can only be invoked against the host State rather than against the State of nationality,Footnote 18 but under Belgian law consular assistance is an individual right of Belgian nationals rather than a prerogative of the State.Footnote 19 Nevertheless, because the plaintiff voluntarily travelled to Syria—where Belgians were strongly discouraged from travelling—she was not entitled to require the provision of consular assistance.Footnote 20 Her children, however, were entitled to consular assistance since they had not chosen to travel to Syria but were born there.Footnote 21
The Tribunal also thought that the Belgian State could offer consular assistance to its nationals detained in Al Roj through its embassies located in three neighbouring countries and through its honorary consulate in Latakia, as well as by collaborating with NGOs that had access to the camp, and that it had the ability to repatriate Belgian nationals currently detained in the camps in Syria.Footnote 22
Conversely, the Court of Appeal found that domestic law grants the State a discretionary power to repatriate, which needs to be exercised in light of the children's best interests and with the cooperation of the Kurdish authorities.Footnote 23 In particular, if the Kurdish authorities required that the mother be repatriated with the children the Belgian State would have to decide whether this was in the children's best interest.Footnote 24 However, the Court of Appeal decided that the suit filed on behalf of the children was not admissible because the two children, who were born under ISIS rule and in Al Roj respectively, did not have identification documents.Footnote 25
C. Findings on the Obligation to Repatriate Based on Human Rights Law
The Tribunal recognised that the Belgian State did not appear to exercise effective control over the region of Syria where the Al Roj camp is located and so was not responsible for the administration of the camp. Nonetheless, according to the Tribunal, the Belgian State had some ‘control and/or power’ over the situation of the detainees in North-East Syria. Referring to the Al Skeini decision of the European Court of Human Rights (ECtHR),Footnote 26 the Tribunal concluded that since Belgium had the discretionary power to grant consular protection to a national, this meant that the State exercised some form of authority and control over them. The Tribunal thus considered the plaintiff and her children to be under the jurisdiction of Belgium pursuant to Article 1 of the European Convention on Human Rights (ECHR) and Article 2 of the Convention on the Rights of the Child (CRC).Footnote 27
According to the Tribunal, the detention of the plaintiff and her children in Al-Roj amounts to inhuman and degrading treatment in the sense of Article 3 ECHR and Belgium should take positive measures to ensure the effective protection of their human rights. While recognising that Belgium enjoys a margin of appreciation with respect to the measures to be taken, the Tribunal recalled that the State had repatriated other children in similar conditions and that the Kurdish authorities have encouraged such repatriations.Footnote 28 Based on the principle of the best interest of the child and on the right to family life, the Tribunal then concluded that the children should not be separated from their mother, and thus that the plaintiff should also be repatriated.Footnote 29
Departing from the first instance decision, and based on the current jurisprudence of the ECtHR, the Court of Appeal found that the Belgian State had no extraterritorial jurisdiction over the plaintiff and her children in Al Roj.Footnote 30 The Court underlined that the right to return to one's country does not imply that the State has a positive obligation to repatriate, but only encompasses the obligation to issue travel documents.Footnote 31 In this respect, the Court noted that, under Belgian law, the issuance of a passport can be refused to a national who is deemed to pose a threat to public order and public safety.Footnote 32
III. THE DUTCH CASE
A. Background
This case was filed by 23 women who travelled from the Netherlands to Iraq or Syria to join ISIS and who are currently detained in either Al Roj or Al Hol with their children. Some of the plaintiffs are the object of a court order according to which all necessary measures should be taken to arrest and prosecute them.Footnote 33 The claimants asked the Hague District Court to order that they and their children be repatriated.Footnote 34 In November 2019, the District Court made such an order, but The Hague Court of Appeal later reversed this decision. The appeal decision was subsequently upheld by the Supreme Court.
B. The Decisions
The Hague District Court and Court of Appeal agreed that consular assistance could neither be claimed nor exercised in this case, given that the Netherlands has no embassy or consulate in Syria and no diplomatic relations with Syria.Footnote 35 All three Dutch courts seised with the case also agreed that the Dutch State has no jurisdiction in Syria for the purposes of the extraterritorial application of the CRC, International Covenant on Civil and Political Rights (ICCPR), and the ECHR.Footnote 36 The Court of Appeal and the Supreme Court made it clear that, whilst the Dutch State could indirectly exercise a degree of influence over the claimants, it had no jurisdiction over them.Footnote 37
As a matter of domestic law, according to the District Court, the State must take measures which are reasonably possible to protect the Dutch children by bringing them to safety without violating international law.Footnote 38 This would not apply to their mothers, who voluntarily travelled to Iraq and Syria to join the Islamic State, and who therefore do not have an independent claim to repatriation.Footnote 39 The District Court ruled out the State having an obligation to repatriate the plaintiffs because some of them were wanted for criminal prosecution.Footnote 40 The District Court ordered the State to take measures to bring about the repatriation of the claimants’ children, and also of the claimants themselves if required by the Kurdish authorities to do so, whilst making it clear that this is not an obligation of result, meaning that the State must only make active efforts to repatriate the children, rather than actually achieve the repatriation.Footnote 41
The State advanced three reasons for opposing the repatriation, which were accepted by the Court of Appeal and the Supreme Court. First, the return of these individuals would jeopardise the national security of the Netherlands and of the other Schengen countries.Footnote 42 Second, the repatriation operation would require putting at risk the lives of the Dutch public servants involved in bringing it about.Footnote 43 Third, because the Kurdish forces required the presence of a high representative of the Dutch government in order to proceed with the repatriation, this would entail forcing the State to engage with unrecognised non-State entities and with the Assad government which is in control of the areas around the two camps and with whom the Dutch government has no relationship. This would have serious repercussions for Dutch foreign policy.Footnote 44 Agreeing with the importance of leaving the government a margin of appreciation to manage such sensitive issues of foreign policy and national security, the Court of Appeal concluded that the case required a political solution.Footnote 45 The repatriation order was reversed, and this decision was confirmed by the Supreme Court.
IV. INTERNATIONAL LAW ASPECTS OF THE TWO CASES
A. An Individual Right to Receive Consular Assistance?
The protection of nationals abroad is among a consul's functions. Pursuant to Article 5 VCCR, consular functions include
(a) protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law; […]
(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State; […]
The International Law Commission's (ILC) Commentary to the Draft Articles which preceded the adoption of the VCCR explains that paragraph (a) ‘relates to the function which the consular official exercises vis-à-vis the authorities of the receiving State’, while paragraph (e) ‘covers any kind of help and assistance which the consul may extend to nationals of his State: information supplied to a national, provision of an interpreter, […] assistance in case of distress, […] repatriation and the like’.Footnote 46 Consular assistance may therefore take various forms and can include the issuance of emergency travel documents as well as relief and repatriation in cases of emergency.Footnote 47 Unlike diplomatic protection, which has a remedial character and is employed by the State of nationality of a person who has suffered an injury due to an internationally wrongful act of another State, consular assistance is preventive and takes place before the commission of an internationally wrongful act.Footnote 48 Article 36 VCCR specifically provides for consular assistance in criminal matters. As explained by the International Court of Justice (ICJ) in the LaGrand case,
Article 36, paragraph 1, [VCCR] establishes an interrelated régime designed to facilitate the implementation of the system of consular protection. It begins with the basic principle governing consular protection: the right of communication and access (Art. 36, para. 1(a)). This clause is followed by the provision which spells out the modalities of consular notification (Art. 36, para. 1(b)). Finally Article 36, paragraph 1(c), sets out the measures consular officers may take in rendering consular assistance to their nationals in the custody of the receiving State.Footnote 49
According to the ICJ, Article 36(1) VCCR creates individual rights which may be invoked in proceedings before the Court by the State of nationality of the detained person.Footnote 50 In the Avena case, the ICJ further elaborated on this provision, explaining that ‘violations of the rights of the individual under Article 36 may entail a violation of the rights of the sending State, and that violations of the rights of the latter may entail a violation of the rights of the individual’.Footnote 51 In Avena, Mexico argued that the right to consular notification and communication under the VCCR is a fundamental human right which constitutes an element of due process in criminal proceedings. The Court did not decide on this point, but observed that ‘neither the text nor the object and purpose of the Convention, nor any indication in the travaux préparatoires’ supported Mexico's conclusion.Footnote 52 The ICJ dealt again with Article 36 VCCR in its 2019 judgment in the Jadhav case, in which it interpreted the provision as conferring on the detained foreign national a right to be informed by the host State about their rights under Article 36(1)(b) VCCR and a right (but not an obligation) for the sending State's consular officers to arrange for them to have legal representation pursuant to Article 36(1)(a) and (c).Footnote 53
According to the Inter-American Court of Human Rights (IACtHR), a national of the sending State has an individual right to contact the consular officers and upholding such right is in turn necessary to guarantee respect for the due process of law, particularly in death penalty cases.Footnote 54
While both the ICJ and the IACtHR focused on the right to consular communication and access, which is owed to foreign nationals by the receiving State, and notwithstanding their different views concerning whether the right to consular notification is a treaty right or a human right, neither elaborated on whether this right also affects the sending State's obligations. In fact, neither the ICJ nor the IACtHR found that the sending State has a duty to provide consular assistance. Indeed, the traditional view is that, under international law, a State has no such obligation.Footnote 55
While nationals of the sending State have an individual right to consular communication and access vis-à-vis the receiving State, they have no individual right to receive consular assistance from their own State, since granting consular assistance remains a prerogative of the State. Under consular law, both the sending State and its nationals are holders of certain rights vis-à-vis the host State, but consular law does not create rights which can be claimed by an individual against their State of nationality. This view was correctly reflected in the decision of the Brussels Tribunal. The Tribunal also correctly concluded that, if under international law the plaintiff and her children have no right to receive consular assistance from Belgium, such a right could nonetheless arise from domestic law. In fact, as a matter of domestic law, a number of States do have an obligation to provide consular assistance to their nationals.Footnote 56 Others resolutely refuse to recognise the existence of a right to receive consular assistance.Footnote 57
Views are divided as to whether an individual right to receive consular assistance exists under European Union (EU) law. Article 23 of the Treaty on the Functioning of the European Union (TFEU) provides that all EU citizens in the territory of a third country where their country of nationality is not represented are ‘entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that State’.Footnote 58 A 2010 study funded by the European Commission showed that EU Member States were roughly equally divided between those which did not recognise a right of consular assistance for their nationals and those which did recognised it as a matter of domestic law, judicial interpretation, or administrative practice.Footnote 59 Some have suggested that Article 23 TFEU does not simply reflect a non-discrimination clause, based on which consular assistance would have to be granted by an EU Member State to the nationals of another Member State only if its domestic law provides for the same right for its citizens, but rather creates a right to consular assistance to which each EU citizen is entitled, and further provides that States must treat all EU citizens the same as their nationals.Footnote 60 This view is supported by a holistic assessment of various EU principles, including EU citizenship, non-discrimination, the integration of foreign policy and the co-operation between EU Member States in crisis situations.Footnote 61
In 2015, Directive 2015/637 was adopted to facilitate consular protection for unrepresented EU citizens in third countries pursuant to Article 23 TFEU.Footnote 62 The Directive's preamble stresses that the competence of Member States to determine the scope of protection to be provided to their own nationals remains unaffected.Footnote 63 Nonetheless, when implementing the Directive, some EU Member States modified their national laws so as to grant their own citizens the right to consular assistance, in addition to extending consular assistance to all unrepresented EU nationals.Footnote 64 This was the case for Belgium, whose Consular Code was interpreted by the Brussels Tribunal in the light of the preparatory works of the amendments implementing Directive 2015/637 as granting an individual right to consular assistance to Belgian nationals.Footnote 65 On the contrary, when implementing Directive 2015/367 the Dutch House of Representatives made it clear that it only provides for the equal treatment of all EU citizens when it comes to consular protection, but leaves it to the Member States to decide when and under what conditions consular protection should be offered. The Directive did not modify the nature and scope of Dutch law relating to consular protection, under which there is no legally enforceable individual right to consular protection and the Minister of Foreign Affairs is free to determine in what form and to what extent consular protection is to be offered.Footnote 66
Even if EU law were interpreted as granting to all EU citizens an individual right to consular assistance, and even if EU Member States reflected this understanding in their laws and practice, at best this could create a regional customary rule which would not affect the general international law rule according to which consular assistance remains a prerogative of the sending State, rather than an individual right that can be claimed against one's State of nationality.Footnote 67 In fact, third States are not automatically obliged to grant consular access to EU nationals by the consular authorities of another EU Member State, although they may be bound to do so by virtue of an agreement concluded to this effect.Footnote 68
Nevertheless, the traditional and majoritarian view according to which no individual right to receive consular assistance exists under international law has been recently challenged.Footnote 69 Notably, Agnès Callamard, Special Rapporteur on extrajudicial, summary or arbitrary executions, contends that a rule of customary international law concerning the responsibility of the sending State to provide consular assistance is emerging, and that the failure of the sending State to provide adequate consular assistance in cases where the death penalty is imposed on its nationals abroad amounts to a violation of the sending State's responsibility to protect the right to life.Footnote 70 This is a noteworthy position which forms part of a larger debate concerning the extraterritorial reach of States’ human rights obligations which is discussed in the following section.
B. Extraterritorial Jurisdiction under Human Rights Law
The application of human rights treaties is dependent upon the State having jurisdiction over the individual.Footnote 71 Jurisdiction under human rights treaties is primarily, but not exclusively, territorial. Jurisdiction is presumed to be exercised throughout the State's territory and is exercised only exceptionally outside the State's territory.Footnote 72 The extraterritorial application of human rights treaties has so far been based on the spatial model and the personal model of jurisdiction. The first model implies the State's effective control over foreign territory (following a lawful or unlawful military action, either directly, through its own armed forces, or indirectly, through a subordinate local administration),Footnote 73 while the second requires the exercise of power and authority by State agents over an individual outside the State's own territory (for instance when an individual is detained by a State abroad).Footnote 74 Mere causation, influence or possibility of exercising control do not suffice to establish the State's extraterritorial jurisdiction under either model.
Under either the spatial or personal model, whether a State owes certain obligations under international human rights law to an individual who is not within the territory of that State does not depend on whether that individual is a national of that State. This reflects the principle of universality of human rights, by which States owe human rights obligations not only to their nationals, but rather to all individuals within their jurisdiction (and only to them), regardless of their nationality. At the same time, nationality can affect the extraterritorial applicability of human rights treaties. In fact, the exercise of consular functions, which necessarily depends on the existence of a bond of nationality between the State and the individual, can result in a State exercising jurisdiction over its nationals abroad, as evidenced by the case law of the ECtHR and of the Human Rights Committee (HRC).
The ECtHR has found that State agents, including diplomatic and consular officers, through their acts and omissions bring individuals under the jurisdiction of their State ‘to the extent that they exercise authority over such persons’.Footnote 75 Similarly, in the so-called ‘passport cases’, the HRC found that the issuance by the consular authorities of a passport to a national in a foreign country brought that person under the jurisdiction of their State of nationality.Footnote 76 In the ‘passport cases’, however, the HRC justified its finding based on the very nature of the right in question—ie the right to leave and return to any country, including one's own, enshrined in Article 12 ICCPR. This approach is consistent with that suggested by Shany, according to whom certain special legal relations render the State ‘particularly well-situated to extend its protection over certain individuals and generate strong expectations that it would do so by virtue of the special legal position of the state vis-à-vis the individual’.Footnote 77
In the light of this jurisprudence, the question remains whether, and under what conditions, the necessity to protect other rights—such as the prohibition of inhuman and degrading treatment—can also be read as warranting the extraterritorial reach of the relevant State's obligations, particularly through the omissions (rather than acts) of its consular, diplomatic or other agents. In particular, it is not immediately evident that a State's obligations would extend any further than the issuance of travel documents so as to encompass the positive obligation to repatriate its nationals due to human rights violations that are not attributable to that State.
Various theories regarding the extraterritorial reach of human rights obligations have been formulated. According to Milanovic, negative obligations are territorially unbound, while positive obligations would only apply within the jurisdiction of the State, intended as de facto effective overall control of areas and places.Footnote 78 Ben Naftali and Shany have outlined a functional model of the extraterritorial application of human rights obligations which is dependent on the direct, significant and foreseeable impact of a State's acts and omissions, including through ‘the exercise of authority by diplomatic and consular staff with respect to persons seeking their services’. According to Ben Naftali and Shany, different obligations stem from different exercises of extraterritorial jurisdiction. For instance, ‘arbitrary refusal to renew passports might arise freedom of movement concerns, but probably no right to life considerations’. They asserted that mere causation would not suffice to make States responsible.Footnote 79
A functional theory of extraterritorial jurisdiction, according to which the scope of a State's human rights obligations depends on its capacity to fulfil them, has been endorsed by the HRC.Footnote 80 A functional understanding of the extraterritorial reach of State's positive human rights obligations was also put forward by Special Rapporteur Callamard, according to whom
a State's responsibility to protect may be invoked extra-territorially in circumstances where that particular State has the capacities to protect the right to life of an individual against an immediate or foreseeable threat to his or her life.Footnote 81
Similarly, Fionnuala Ní Aoláin, Special Rapporteur on human rights and counter-terrorism, has argued, individually and jointly with Callamard, that the States of nationalities of foreign fighters and their families detained in Northern Syria ‘have a positive obligation to take necessary and reasonable steps to intervene in favour of their nationals abroad, should there be reasonable grounds to believe that they face treatment in flagrant violation of international human rights law’.Footnote 82 While appealing, these arguments go too far. As cogently explained by Besson,
Without jurisdiction, there are no human rights applicable and hence no duties, and there can be no acts or omissions that would violate those duties that can be attributed to a state and a fortiori no potential responsibility of the state for violating those duties later on. […] [T]hat very question of the concrete feasibility of duties only arises once jurisdiction has been established and the abstract rights recognized. There can be no human rights duties without human rights, and the existence of human rights depends on jurisdiction in the first place. Jurisdiction cannot therefore be directly equated with the feasibility of human rights duties.Footnote 83
As correctly concluded by the Dutch courts, the cases at hand are not about consular assistance. Neither Belgium nor the Netherlands have embassies or consulates operating in Syria. Even if they did have diplomatic relations with the Kurds, they would not be regulated by consular law, as the latter does not apply to relations between State and non-State actors. Additionally, no right to receive consular assistance exists under international law.
Nonetheless, one might argue that the special functions, including repatriation, that consular or other State agents could exercise (but are currently omitting to exercise) vis-à-vis their nationals detained in North-East Syria bring these individuals under the jurisdiction of their States of origin. This claim is unconvincing. Indeed, the problem with the functional theory of extraterritorial jurisdiction is that ‘it is essentially limitless’.Footnote 84 Basing a finding of extraterritorial jurisdiction on the fact that Belgian or Dutch State agents (whether they are consular or diplomatic agents posted in the region or other State representatives) could be able to affect the rights of the individuals detained in the camps in North-East Syria, if they did act, sets the bar for the extraterritorial applicability of human rights treaties incredibly low, to the point that the concept of jurisdiction would become meaningless. On the contrary, for jurisdiction to be established, the State's power should be ‘effective and exercised, and not merely claimed’.Footnote 85 If inaction by a State in situations in which it could potentially have taken action brought individuals under the jurisdiction of that State, most individuals would be at most times, in most places, under the jurisdiction of any State.
The shortcomings of such an approach become evident if one reflects on the State's potential ability to take action through its agents in light of EU law rules on consular assistance. If consular assistance must be granted by any EU Member State to any unrepresented EU citizen, and because human rights obligations are not based on nationality but on jurisdiction (and, based on a functional reading of jurisdiction, specifically on special relations such as those created by consular functions), any EU citizen would fall under the jurisdiction of any EU Member State that, through the exercise of consular functions, could affect the fate of the individuals detained in North-East Syria. This is an unrealistic requirement that as such would do very little for human rights protection.
Additionally, and as convincingly argued by the Netherlands, negotiating the repatriation of the applicants and their children with the Kurds would require the State to enter into political or diplomatic relations with a non-State entity. While this is not prohibited by international law, it is certainly not encouraged by the Westphalian system of modern international law. Nor does international law require a State to establish or exercise extraterritorial jurisdiction.
The Dutch courts were thus correct to conclude that neither consular assistance nor the extraterritorial applicability of human rights treaties were relevant to the decision concerning whether the plaintiffs and their children should be repatriated.
C. The Right of Return and Deprivation of Citizenship
It remains to be seen whether the right to be repatriated can instead be said to arise from the human right to return to one's own country.
Article 12(4) ICCPR prohibits the arbitrary deprivation of one's right to enter one's own country.Footnote 86 This provision has been interpreted by the HRC as prohibiting States from depriving an individual of citizenship so as to arbitrarily prevent their return.Footnote 87 States have a duty vis-à-vis other States to readmit nationals to their territory.Footnote 88 Goodwin-Gill has argued that, because ‘returnability’ is central to the passport regime, any State which admitted an individual based on them holding a foreign passport would be fully entitled to ignore any purported deprivation of citizenship that occurred while the individual was on its territory and to return that person to their country of origin.Footnote 89 It is hard to read the duty of readmission which is owed to other States so as to encompass an individual right to be repatriated.
In order to prevent foreign fighters and their families from returning, some States have stripped them of nationality.Footnote 90 However, States cannot freely do so. Under both the 1961 Convention on the Reduction in Statelessness (CRS), to which both Belgium and the Netherlands are parties, and the 1997 European Convention on Nationality (ECN), ratified by the Netherlands but not by Belgium, States are prohibited from rendering a person stateless.Footnote 91 Deprivation of citizenship, even when leading to statelessness, exceptionally is possible when a person has committed acts ‘seriously prejudicial to the vital interests of the State’.Footnote 92 Many States consider offences against national security, including terrorism-related crimes, as legitimate grounds for deprivation of nationality.Footnote 93 This seems justified to the extent that terrorist acts are in fact prejudicial to vital interests of the State,Footnote 94 unless the deprivation of citizenship is only aimed at ‘arbitrarily’ preventing the affected individual from returning to their own country, contrary to Article 12(4) ICCPR.
Some States, including the Netherlands, have determined that while their citizens have the right to return to their home countries, the government will not actively repatriate them.Footnote 95 Two commentators have asserted that ‘this option is comparable to showing a detainee the key to his or her cell […] and then telling the person he or she is entitled to this key, but keeping it out of grasp’.Footnote 96 The moral and practical shortcomings of such a position are uncontestable. Nevertheless, legally speaking, no alternative has been convincingly put forward.
State practice shows not only that a State's duty to readmit its own nationals does not imply a duty to actively repatriate them, but also that, when a third-country national is returned to their home country by another State, the latter—and not the home State—bears the repatriation costs. The home State only has the duty to issue the travel documents required for the person to be readmitted.Footnote 97 Indeed, in the most recent chapter of the notorious saga of Shemima Begum—who, after travelling from the United Kingdom to Syria to join ISIS and being detained in Al Hol and then in Al Roj, was stripped of her UK citizenship—the UK Court of Appeal found that Begum could only have a fair and effective appeal against the deprivation of citizenship decision if she returned to the UK and should thus be allowed to do so.Footnote 98 According to the Court, if she were granted leave to enter the UK and issued with travel documents, there is ‘no reason to believe that she would be unable to return’.Footnote 99
In conclusion, the right of return to one's country does not imply an individual right to be actively repatriated by one's State of nationality, but at best entails the right to be issued with travel documents.
V. CONCLUSION
Through the lenses of the recent decisions of Belgian and Dutch courts, this article has shown that individuals detained in camps in North-East Syria do not enjoy an individual right to be repatriated by their State of nationality based on a right to receive consular assistance, the extraterritorial reach of their State's human rights obligations, or the right of return to one's country.
As a matter of international law, the States of origin of foreign fighters who left for Syria and Iraq to join ISIS, and their family members, including women and children, have discretion in determining whether to repatriate their nationals. The decision whether to do so, and under what conditions, is largely dictated by political considerations. The latter appear to be particularly important in light of the fact that these individuals are currently detained by a non-State armed group, with whom States have no formal diplomatic relations. Nonetheless, they arguably have the moral obligation to care for their nationals abroad and these considerations might even be reflected in domestic law.
Although this article has concluded that the repatriation of individuals detained in North-East Syria is a State prerogative, there are good reasons why States should exercise it. While the special bond of nationality between a State and an individual may not necessarily suffice to bring that individual within the jurisdiction of the State, such a bond should nonetheless influence the decisions of States which affect the fate of their nationals. Considerations of this nature should be particularly prominent in view of the threat to international peace and security caused by the undetected travel of foreign fighters and their families and by their continued radicalisation in the detention camps. This threat is better contained by a controlled return, through repatriation, coupled with effective prosecution, rehabilitation and reintegration strategies. States should also be mindful of the absence of realistic alternatives to the prosecution of these individuals, both regionally and internationally. Finally, the fact that States consistently deny that non-State armed groups have any authority to detain, while at the same time refusing to take action concerning the detention of thousands of their citizens by the SDF, is evidence of a schizophrenic attitude towards armed groups, seemingly dictated by convenience rather than by solid legal considerations.
