In June 2018, I co-authored an Op-Ed in the Dutch newspaper de Volkskrant appealing to the Dutch government to take back the children of Dutch Islamic State (IS) fighters for legal and long-term security considerations. Now, one year later, the Caliphate as we once knew it has collapsed, and the discussion on what to do with the former IS “residents” now being detained in Syrian camps has broadened to the children’s fathers and mothers. At this moment, the camps reportedly host, along with tens of thousands of Syrians and Iraqis, some 12.000 foreign women and children, as well as 8.000 fighters, including 1.000 foreigners. Behind those vast numbers are individual and often tragic stories, with the most famous one probably being that of Shamima Begum, who, at the age of 15 and together with two school friends, left the UK in February 2015 to join IS. She has lost all her three children, has been deprived of her nationality and has pled for her repatriation back to the UK.
Whereas Western states were reluctant to take responsibility for the products of their own society, the pressure from the side of, among other things, the Syrian Democratic Forces (SDF), the International Committee of the Red Cross (ICRC), the United Nations (UN) and US President Donald Trump has become such that States were forced to reconsider their policies. Slowly, a few states started repatriating, mostly women and children, but sometimes also male fighters. Occasionally, governments were forced by court orders to bring back children or specific adults so that they could be tried for alleged crimes.
Nonetheless, doubts remained, also in view of the fact that repatriation of the children may lead to the repatriation of the mothers as well, or because of a lack of evidence, or no laws at all, to prosecute suspects upon return, making some states and commentators suggest it would be better to prosecute the foreign fighters and the families in the region, either by national courts or an international tribunal.
There does not seem to be a strict obligation under international law to repatriate. Indeed, states have a relative discretion to decide upon the scope of their consular assistance. Nonetheless, there are several obligations under international law that would argue in favour of repatriation, especially in the case of children. One such obligation is the obligation, under UN Security Council Resolution 1373, to bring terrorists to justice. In more recent resolutions such as Resolution 2178, this obligation has been reiterated, now also in the more specific context of foreign terrorist fighters. Such an obligation would argue against the decision to just leave people – many of whom joined a terrorist organisation – in camps, hoping that other entities will do something about it. In other words: non-repatriation and prosecution constitutes a bar to accountability and the obligation to fight impunity. Very understandably, also the victims of IS’ crimes have stressed the importance of alleged crimes being properly investigated and prosecuted so that justice can be done.
In addition, the specific position and needs of children must be taken into account. According to Article 3 of the Convention on the Rights of the Child (CRC), states “undertake to ensure the child such protection and care as is necessary for his or her well-being” and “the best interests of the child shall be a primary consideration”. Other provisions of the CRC are also relevant, such as the rights to education and especially health that are not (sufficiently) being provided in the camps. Indeed, and unfortunately, many children have already died because of the poor conditions in the camps. Even though the CRC stipulates that “States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction [emphasis added]”, all of the above strongly suggests that states should repatriate and take care of the children having a link with the state of origin, rather than leaving them in the misery of the camps, especially now that the temporary guardians of the children (the SDF and relief organisations) have asked the states of the foreign fighters several times to take their responsibility.
Of course, it should be stressed that the discussion of repatriation and possible prosecution in the states from where the parents had left for Syria and Iraq is no negation of the sovereign right of each state to prosecute crimes that have been committed on their territory (territoriality principle). However, since there is a considerable risk that this would lead to people being tortured (Syria) or tried after proceedings which do not respect human rights (Iraq), this is not a serious option for countries that claim to uphold the rule of law or further the international legal order.
Also from a security dimension, repatriation and possible prosecution of the foreign fighters and their families is arguably the best solution. Admittedly, bringing back people who have spent time with IS is not without risks. If not properly monitored, they could be involved in attacks, thereby using their combat skills acquired in the Levant. Nonetheless, the risks are arguably even greater – and this has also been established empirically – when nothing is done with these people at all, as is currently the case.
The camps are overcrowded and its detainees prone to further radicalisation and recruitment while being in legal limbo. Countries must be very careful not to create a Camp Bucca 2.0, the infamous Iraqi detention centre which played an important role in the establishment of IS in the first place. In addition, persons may disappear off the radar or may be set free after questionable trials, thus not only escaping (true) justice but also creating a direct security problem for the countries and people in the region and an indirect security problem for other countries (and their people) to which they may relocate unseen at a later stage.
As regards children: now that many of them are still of very young age, child care specialists have indicated that the security risks are minimal and that they are still able to treat them. However, they have also warned that the longer we wait and the older they get, the more difficult this task will become. Instead of looking away from what has been described as “ticking time bombs”, the longer we wait and the more trauma these children will have to endure, the more realistic it will be that ticking time bombs are actually being created by the current state passivity.
Therefore, controlled repatriation, prosecution, rehabilitation and reintegration (and further monitoring if needed) would be a bolder but also – as argued elsewhere – a far wiser approach from a long-term security perspective, for all countries and people involved. This is an international problem that should be responded to in an equally international manner, characterised by solidarity and with states (by taking care of their foreign fighters and their families), sharing and dividing responsibility, thus making the bigger and seemingly insurmountable problem smaller and thus more manageable. It is time to act now!
The views, opinions, and thoughts expressed in the text belong solely to the author, and do not necessarily reflect the position of ISPI
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