Court:
UN Committee on the Rights of the Child
Date:
8 February 2022
CRC provisions:
CRC, Article 2 (non-discrimination)
CRC, Article 3 (best interests of the child)
CRC, Article, 6 (survival and development)
CRC, Article 19 (protection from abuse and neglect)
CRC, Article 20 (protection of a child without a family)
CRC, Article 24 (health and health services)
CRC, Article 37 (torture and deprivation of liberty)
Case summary:
Background:
This case concerns three individual communications. The complaint was brought by the relatives of 49 French children whose parents had travelled to territory controlled by Islamic State of Iraq and the Levant (ISIL). Some of the children were born in Syria, while others had moved there with their parents at a very young age. During 2020 and 2021, 11 of the children were repatriated, but 38 remained detained in camps in northeastern Syria.
The authors complained that France’s failure to repatriate the remaining 38 children amounted to a violation of Articles 2, 3, 6, 19, 20, 24 and 37 of the CRC.
In March and December 2019 the Committee rejected the authors’ request for interim measures in which they asked for the child victims’ repatriation to France. In September 2020 and February 2021, the Committee found that the communications were admissible and that the children fell within France’s jurisdiction.
Issue and resolution:
State’s refusal to repatriate children from northern-Syria. France failed to protect the children victims against an imminent and foreseeable threat to their lives and to take their best interest as a primary consideration. The children’s prolonged detention conditions in the camps amounted to cruel, inhuman or degrading treatment.
Court reasoning:
The Committee emphasised that the focus of the case should be whether France had adopted all the necessary steps to guarantee the child victims’ rights under the CRC, as they were under its jurisdiction.
The Committee rejected France’s argument that it was not in a position to repatriate the children solely at its will, recalling its findings at the admissibility stage that the circumstances of the case showed that France was in a position to decide whether to repatriate the child victims or not, or to adopt other consular measures. In doing so, the Committee took into account the French citizenship of the children, the information France had gathered about French children in camps, and France’s relationship with the Syrian authorities. Indeed, it emphasised that France had already successfully repatriated over 30 French children with no incident or opposition by the authorities.
The Committee found that the living conditions in Syrian camps were that of lack of health care, food, water and sanitation, and education. This amounted to a situation of imminent and foreseeable threat to the lives of the children detained; a situation which had been documented in a number reports and of which France was well-aware.
Thus, the Committee held that France’s failure to protect the child victims from such risk amounted to a violation of Article 6 of the CRC. It also found that the victim children’s prolonged detention in those conditions had had an impact on their development and constituted cruel, inhuman or degrading treatment or punishment, and thus held that France had violated Article 37 (a) of the CRC.
The Committee noted that the State was knowledgeable of the prolonged detention period of children in a life-threatening situation and that it had capacity to intervene. The Committee found that there was a positive obligation for France to protect children against an imminent risk of violation of their right to life and the right not to be subjected to cruel, inhuman and degrading treatment. Therefore, the Committee found a violation of Article 3 of the CRC, as France had not duly taken into account the principle of the best interests of the child victims.
The Committee recommended that France repatriate the children, support their reintegration, and, in the meanwhile, adopt supplementary measures to mitigate the child victims’ risk to life, survival and development.
Joint concurring opinion
Three members of the Committee issued a joint concurring opinion in the case. While they agreed with the Committee’s conclusion, they held that the Committee should have examined the author’s complaints under Articles 6 (2) and 37 (b) of the CRC. They argued that the Committee could have found a violation of these provisions.
Excerpts citing the CRC:
(Unofficial translation by CRIN)
Consideration of admissibility
5.2 The Committee takes note of the developments that occurred after its decisions on the admissibility of the three communications, but which nevertheless relate to their admissibility. In this regard, with regard to communication no. 77/2019, the Committee takes note of the parties’ statements that O. G., A. G., H. G., S. G., K. A., M. A. and S. B. were repatriated to France in June 2020, in January 2021 and on 22 July 2021. In light of this information, the Committee considers that the communication, which concerned the State party’s refusal to repatriate these children, has become moot and that its consideration should therefore be discontinued.
5.3 The Committee further notes that the authors raised for the first time a violation of articles 7, 8, 16 and 28 of the Convention only in their comments on the merits and thus were not part of the arguments to which the State party was invited to respond on the admissibility and merits of the case. The authors have not shown why they were unable to advance these claims at an earlier stage of the proceedings and have not sufficiently substantiated them. Accordingly, the Committee declares these claims inadmissible under article 7 (f) of the Optional Protocol.
Consideration of the merits
6.4 […] The Committee reiterates its finding on admissibility in the sense that the State party, by virtue of its nationality link with the children detained in the camps, its information on the children of French nationality held in the camps, and its relationship with the Syrian authorities, has the capacity and power to protect the rights of the children in question, by taking measures to repatriate them or other consular measures. This capacity is reflected in the fact that the State party has already successfully repatriated more than 30 French children without having reported any incidents in the execution of these repatriations or any refusal of cooperation by the Rojava authorities. […] The Committee also notes that, as stated in its decision on the admissibility of the communications, most of the mothers had given their express consent to the submission of these communications on behalf of their children.
6.5 […] [T]he Committee observes that the circumstances of security, restriction of movement and health described are applicable to all children held in the camps, including child victims, who cannot escape the conditions of detention and life applicable to other camp inhabitants. The Committee is of the opinion that the harms have been sufficiently identified and that there is no reason to believe that the children specifically named in these communications are at less risk than other camp inhabitants.
6.6 […] [T]he Committee notes that the situation of imminent risk to the lives of children held in camps in Syria has been documented in several reports, including the report of the Commission of Inquiry on Syria. This situation was well known to the State party, which proceeded on its own initiative to repatriate several of these children.
6.7 With regard to Article 6 of the Convention, the Committee notes the authors’ arguments, supported by evidence, that many children living in the camps have died and continue to die and that the living conditions described, including the lack of food and water, pose an imminent and foreseeable threat to the lives of all children who are detained in the camps. The Committee notes that the State party does not deny the conditions in the camps as described by the authors and the third party intervener. In light of the foregoing, the Committee considers that there is sufficient information to establish that the conditions of detention pose an imminent and foreseeable threat to the lives of the child victims and that the State party’s failure to protect them constitutes a violation of Article 6 of the Convention.
6.8 With regard to the authors’ allegations under Article 37 (a) of the Convention, the Committee considers that there is sufficient evidence to establish that the prolonged detention of the child victims in the conditions described in the camps, including in particular the lack of health care, food, water and sanitation facilities and education, has an impact on their development and amounts to cruel, inhuman or degrading treatment or punishment in violation of article 37 (a) of the Convention.
6.9 Furthermore, the Committee notes the State party’s argument that the Convention does not impose a positive obligation to repatriate its nationals. However, given the State party’s knowledge of the prolonged detention of these French children in a life-threatening situation and its capacity to intervene, the Committee considers that the State party has a positive obligation to protect these children from an imminent risk of violation of their right to life, as well as from an effective violation of their right not to be subjected to cruel, inhuman or degrading treatment.
6.10 […] In the circumstances of the present cases, the Committee concludes that the State party has failed to demonstrate that it has taken due account of the best interests of the child victims in assessing the authors’ requests for repatriation, in violation of article 3 of the Convention.
6.11 In view of all the above, and in the particular circumstances of the present case, the Committee concludes that the State party’s failure to protect the child victims constitutes a violation of their rights under Articles 3 and 37 (a) of the Convention, and that the State party’s failure to protect the child victims from an imminent and foreseeable threat to their lives would constitute a violation of Article 6, paragraph 1 of the Convention.
6.12 Having reached this conclusion, the Committee does not consider it necessary to examine whether the same facts constitute a violation of Articles 2, 6 (2), 19, 20, 24 and 37 (b) of the Convention.
7. The Committee on the Rights of the Child, acting under article 10, paragraph 5, of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, finds that the facts before it amount to a violation of Articles 3, 6 (1) and 37 (a) of the Convention.
8. Therefore, the State party is under an obligation to provide the authors and child victims with effective reparation for the violations suffered. It is also under an obligation to prevent the repetition of such violations. In this regard, the Committee recommends that the State party:
(a) As a matter of urgency, to provide an official response to every request for repatriation made by the authors on behalf of the child victims;
(b) To ensure that any procedure to consider such requests for repatriation and the implementation of any decisions are in accordance with the Convention, including taking into account the best interests of the child as a primary consideration and the importance of preventing further violations of children’s rights;
(c) To take positive and urgent measures, acting in good faith, to effect the repatriation of child victims
(d) To support the reintegration and resettlement of each repatriated or resettled child; and
(e) In the meantime, to take additional measures to mitigate the risks to the lives, survival and development of the child victims while they remain in north-eastern Syria.
Notes:
The original decision was available only in French at the time of writing; the excerpts citing the CRC are translated by CRIN.
Citation:
CRC, Communications no. 77/2019, 79/2019 and 109/2019 (CRC/C/89/D/77/2019; CRC/C/89/D/79/2019; CRC/C/89/D/109/2019), Decision on the merits of 8 February 2022
Link to Full Judgment
https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/FRA/CRC_C_89_D_77-79-109-2019_33552_F.pdf
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.