Committee on the Rights of the Child
Views adopted by the Committee under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, concerning communication No. 100/2019 * , ** , ***
Communication submitted by:P.N., K.K. and O.M. (represented by counsel, Johanna Niemi)
Alleged victims:S.N., Mh.K., Mu.K., S.M., K.M and J.M.
State party:Finland
Date of communication :30 September 2019 (initial submission)
Date of adoption of Views:12 September 2022
Subject matter:Repatriation from refugee camps in the Syrian Arab Republic of children whose parents are linked to terrorist activities
Procedural issue s :Jurisdiction; exhaustion of domestic remedies; competence ratione temporis; ius standi
Substantive issues:Protective measures; right to life; access to medical care; arbitrary detention
Articles of the Convention:2, 6, 19, 20, 24, 27, 28, 37, 39 and 40
Article of the Optional Protocol on the involvement of children in armed conflict:7
Articles of the Optional Protocol on a communications procedure :5 (1) and (2) and 7 (e) and (f)
1.1The authors of the communication are P.N., acting on behalf of her niece S.N. (born in 2017), K.K., acting on behalf of her grandchildren Mh.K. (born in 2017) and Mu.K. (born in 2016), and O.M., acting on behalf of her grandchildren S.M. (born in 2017), K.M. (born in 2014) and J.M. (born in 2013). The authors are nationals of Finland. They submit the present communication on behalf of the children mentioned above, who are also nationals of Finland, as well as on behalf of 33 other Finnish children who are held in the Hawl camp and have no access to legal aid or to legal information that would enable them to submit a communication. The parents of the child victims are alleged to have collaborated with Da’esh. The child victims were born in the Syrian Arab Republic and are currently being held in the Hawl camp in the north-east of the country, which is under the control of the Syrian Democratic Forces. The authors claim that the State party has not taken the measures necessary to repatriate the child victims to Finland and that this failure to act constitutes a violation of articles 2, 6, 19, 20, 24, 27, 28, 37, 39 and 40 of the Convention, as well as of article 7 of the Optional Protocol to the Convention on the involvement of children in armed conflict. The authors are represented by counsel. The Optional Protocol on a communications procedure entered into force for the State party on 12 February 2016.
1.2On 10 October 2019, pursuant to article 6 of the Optional Protocol on a communications procedure, the working group on communications, acting on behalf of the Committee, rejected the authors’ request for interim measures consisting of the repatriation of the children to Finland. However, the Committee requested the State party to take any measures necessary to guarantee the safety and well-being of the children, including by ensuring that they have access to any medical care that they may need.
Facts as submitted by the authors
2.1According to the authors, on an unknown date, the mothers of the child victims were evacuated from the city of Baghuz and other previously Da’esh-controlled areas in the Syrian Arab Republic to the Hawl camp. They claim that, despite knowing that the children were at risk of irreparable harm in the Hawl camp, the Government of Finland announced that it would not assist or repatriate the child victims.
2.2The conditions in the camp are extremely poor because of overcrowding, unhygienic sanitary conditions, a scarcity of food and a lack of clean drinking water. Additionally, the authors state that forms of “extremist pressure and coercion” prevail in the camp. The tents provided frequently collapse in the wind and in the rain. There is no heating in the winter. As a result of these conditions, the children in the camp frequently suffer from malnutrition and various illnesses.
2.3Mu.K. suffers from serious malnutrition and frequent diarrhoea. He has received no medical care and has, as a result, not developed at a normal rate. In the summer of 2019, when he was 1 year and nine months old, he was 73 cm in height and weighed 7.9 kg. J. recently suffered from pneumonia and was hospitalized. She is currently recovering, but suffers from frequent diarrhoea and other diseases. S., who is 2 years old, almost died on several occasions. He is suffering from malnutrition and diarrhoea, his development has been delayed and he has difficulties with speech and movement. S.N. has a hip injury and is unable to walk.
2.4The authors argue that the State party’s domestic remedies are unavailable and ineffective because the inaction of the Finnish authorities cannot be challenged by means of administrative or judicial proceedings.
Complaint
3.1The authors argue that, by its inaction, the State party has violated articles 2, 6, 19, 20, 24, 27, 28, 37, 39 and 40 of the Convention on the Rights of the Child, as well as article 7 of its Optional Protocol on the involvement of children in armed conflict. They assert that the State party failed to permit the children to access consular services, on the basis of their ethnicity, their mothers’ religious convictions or their age (art. 2), to assist the children in leaving the camp (art. 37), to repatriate the children from a camp where the living conditions are extremely poor and put their life, health and development at risk (arts. 6, 19, 24 and 27) and to offer them rehabilitation (art. 39 of the Convention and art. 7 of the Optional Protocol on the involvement of children in armed conflict).
3.2The authors recall that, in accordance with article 20 of the Convention, when the family cannot protect the child, the child has the right to State protection. The authors also submit that some of the older children at the camp may have committed “cruelties” under duress or manipulation. If this is the case, the investigation of their actions should be carried out in accordance with the guarantees under article 40. For the authors, these procedural and other safeguards have not and cannot be fulfilled in the circumstances at the camp.
3.3The authors stress that the State party is well aware of the deplorable sanitary conditions in which the children are living and has the possibility to negotiate their release from the Hawl camp and to repatriate them. They argue that the fact that the violations take place outside the territory of the State party does not absolve it from its obligations under the Convention, because – by its inaction – the State party is directly contributing to the continuous violations of the child victims’ rights. The authors note that there is no obstacle preventing the State party from repatriating the child victims because the authorities governing the camp have announced that they allow and promote the repatriation of European citizens to their countries of origin.
State party’s observations on admissibility
4.1In its observations dated 10 December 2019, the State party submits that the communication is inadmissible owing to the authors’ lack of standing, the lack of Committee’s competence ratione temporis, the non-exhaustion of domestic remedies and the State party’s lack of jurisdiction over the children.
4.2The State party refers to article 5 (2) of the Optional Protocol on a communications procedure and argues that the authors have not established that they are acting with the consent of the legal guardians of their child relatives. The situation in the present case is different from that in similar cases against France already decided by the Committee, in which most of the children’s guardians had provided consent telephonically. As to the other 33 children on whose behalf they also introduce this communication, the State party notes that their personal details or identities are not specified and that the authors do not provide any evidence of authorization to act on their behalf. The State party is not aware that the legal guardians of those 33 children are even aware of the present communication. It therefore considers that the communication on their behalf should be declared inadmissible as anonymous.
4.3The State party recalls that, in accordance with the general rules of international law and the principles of non-retroactivity of treaties, the Optional Protocol does not bind the State party in relation to any act or fact that took place or any situation that ceased to exist before the date of the entry into force of the Optional Protocol. The State party notes that the authors do not mention any time frame as to when the alleged violations occurred and it thus considers that the communication should be declared inadmissible ratione temporis to the extent that any facts or alleged violations occurred prior to 12 February 2016, when the Optional Protocol entered into force for the State party.
4.4The State party points out that none of the Convention articles raised by the authors before the Committee have been invoked before the domestic authorities and that domestic remedies have therefore not been exhausted.
4.5The State party contests the Committee’s jurisdiction, and argues that its obligations under the Convention and its Optional Protocols are determined by jurisdiction, not the citizenship of the individuals. The Committee has already stated in its general comment No. 6 (2005) on treatment of unaccompanied and separated children outside their country of origin that the enjoyment of rights stipulated in the Convention is not limited to children who are citizens of a State party and must therefore, if not explicitly stated otherwise in the Convention, also be available to all children, including asylum-seeking, refugee and migrant children, irrespective of their nationality, immigration status or statelessness.
4.6The State party argues that it has only agreed to respect the rights set forth in the Convention in situations that fall within its sovereignty and competence and over which it is likely to have effective control. The State party adds that it cannot be held accountable for situations that it did not create and over which it has no effective control.
4.7The State party refers to article 29 of the Vienna Convention on the Law of Treaties, to the decision of the European Court of Human Rights in Banković and others v. Belgium and others and to the jurisprudence of the Committee against Torture. It argues that, in public international law, the concept of jurisdiction is primarily territorial, unless a different intention appears from the treaty or is otherwise established, and that the extraterritorial jurisdiction of a State stems from the effective control it is likely to exercise outside its borders. The State party refers to the jurisprudence of the European Court of Human Rights, the International Court of Justice and the Inter-American Commission on Human Rights and recalls that, in order for the children to come under the jurisdiction of the State party, the authors must demonstrate that they are under the effective control of Finland, either through its agents or through a local authority over which Finland would have such great control as to cause that authority to in fact be dependent on it. In the present instance, the State party notes that the authors have not provided any evidence that Finland exercises any control or authority over the children or over the territory in question.
4.8Finally, the State party notes that the allegations raised by the authors are not substantiated because they are general in nature and not related to the facts concerning the individual situation of the children mentioned in the present communication.
Authors’ comments on the State party’s observations on admissibility
5.1On 17 February 2020, the authors submitted their comments in response to the State party’s observations on admissibility. They recall that they are close relatives of the children named in the present communication, who are detained with their mothers in a camp controlled by the Syrian Democratic Forces. In these circumstances, the authors have standing to act in the best interests of the children named in the communication. Given the fact that all the other children in the Hawl camp who are Finnish citizens are in an identical situation, the authors claim that they also have standing to act on behalf of the whole group of similarly situated children. The State party knows the identities of all the children in the Hawl camp who are Finnish citizens. If the Committee does not accept the authors’ standing on behalf of the whole group, then it should proceed to consideration of the merits in respect of the children who are named in the communication.
5.2As to the State party’s argument of incompatibility ratione temporis, the authors clarify that the communication relates to violations that have occurred since March 2019, and which are of a continuous nature.
5.3The authors highlight that the State party has not named any single domestic remedy in respect of any alleged violation invoked. They specify that they have made requests for child protection measures to the child protection authority in Helsinki, but their requests were dismissed. They have also complained to the Chancellor of Justice, who issued a decision on 9 October 2019. However, the Chancellor cannot overturn the decisions of the child protection authority, nor those of the Government.
5.4The authors mention that, on 16 December 2019, the Government issued a decision in principle on repatriation from the Hawl camp. These guidelines do not confer rights to individuals, nor have they translated into any effect on the ground. The authors claim that there is no remedy in respect of such a decision and mention that, on 22 May 2019, the author K.K. lodged a complaint with the Parliamentary Ombudsman, which is still pending. However, this is also not an effective remedy, given that the Ombudsman cannot overturn any decisions by the authorities.
5.5As to jurisdiction, the authors submit that the communication relates only to acts or omissions that are within the jurisdiction of the State party. The authors do not claim that the State party should take repatriation measures without proper negotiations and agreement with the authorities that have control over the territory.
State party’s additional observations
6.1In its submission of 4 August 2020, the State party informed the Committee that, on 16 December 2019, the State party’s Government had issued guidelines for the repatriation of Finnish nationals from the Hawl refugee camp in the Syrian Arab Republic. On the basis of those guidelines, government resolution UM/2019/203 was adopted, on 19 December 2019. The State party declares that it is the Government’s unequivocal and common resolve to repatriate children from the camp as soon as possible. Two children were repatriated in December 2019 and, in August 2020, a mother and her children who had fled to Türkiye from the Hawl camp were repatriated with the assistance of the Finnish authorities.
6.2The State party further mentions that three women and their children – including S.M., K.M. and J.M. – left the Hawl camp on their own initiative and arrived in Finland on 31 May 2020. As those three children are no longer being held in the Hawl camp, the author O.M. has lost her victim status as to alleged violations of the rights enshrined in the Convention and its Optional Protocols. The State party therefore requests the Committee to declare the communication concerning O.M. inadmissible in application of article 7 (c) of the Optional Protocol on a communications procedure.
6.3On 17 December 2021, the State party informed the Committee that, on 10 December 2021, it had repatriated a woman and her four children from the Hawl camp via Türkiye, in cooperation with the Turkish authorities. On 16 July 2021, the State party also repatriated a woman and her two children from the Rawj camp. Since 2019, the State party has repatriated a total of 35 Finnish nationals (26 children and nine adults), who were held in the north-eastern Syrian Arab Republic. Approximately 10 Finnish nationals remain in the camps.
6.4The State party affirms its intention, to the extent possible, to repatriate the Finnish children still held in the camps. When it has not been possible to repatriate individuals, the State party has sought, given the difficult circumstances and with the aim of primarily protecting the safety of children, opportunities and ways to ensure the rights and well-being of the Finnish children residing at the Hawl camp by other available means, to the extent it has been possible. The measures taken have included remote access to a paediatrician and a remote school arrangement for the Finnish children in the Hawl camp.
Authors’ additional observations
7.1In their submission of 11 February 2021, the authors confirmed that S.M., K.M. and J.M. had returned to Finland with their mother on 31 May 2020. However, they argue that the communication should not be declared inadmissible with regard to the author O.M. because S.M., K.M. and J.M. suffered from the violations of the Convention while they were in the camp, from the spring of 2019 to May 2020. During that time, the State party did not use the means available to protect them.
7.2The authors mention that, on 16 December 2020, the State party’s Ombudsman issued a decision on K.K.’s claim, in which it acknowledged no duty of the Ministry for Foreign Affairs to repatriate the children, but underlined the need to respect the fundamental human rights of the children.
7.3The authors submit that, while the Government of Finland stated in the summer of 2019 its public position not to help the children in the camp, it nonetheless changed its position in December 2019 by committing itself to the repatriation of children from the Hawl camp. But while the Embassy of Finland in Türkiye granted travel documents to families that had left the camp on their own initiative and by their own means – including S.M., K.M., J.M. and their mother – it did not do anything to assist those families to leave the camp. The State party has thus violated their right to protection during their stay in the camp.
7.4As to the State party’s allegation that it has sought to ensure the well-being of the children in the camp, the authors have not received any information about such measures from their relatives in the camp. It was the Office of the United Nations High Commissioner for Refugees that provided support to families in the Hawl camp. The authors’ relatives in the camp have never seen a Finnish delegation visiting the camp, although they have seen a Swedish delegation.
State party’s observations on the merits
8.1On 9 June 2022, the State party submitted its observations on the merits. It reiterates its plea for inadmissibility and adds that the allegations under articles 39 and 40 of the Convention and article 7 of the Optional Protocol on the involvement of children in armed conflict are entirely speculative because they refer only to possible and hypothetical future circumstances. It notes that, while the authors mention a request made before the child protection authority, they have not appealed that decision. The State party recalls government resolution UM/2019/203, on guidelines for the repatriation of Finnish nationals from the refugee camp in Hawl in the Syrian Arab Republic, and reiterates its unequivocal and common resolve to repatriate the children from the camps as soon as possible.
8.2On the merits, the State party considers that there has been no violation of articles 2, 20, 24 (4) or 37 of the Convention. The claim under article 2 of the Convention, in particular, appears to be a mere speculation and thus lacks substantiation for the purposes of admissibility. The State party argues that, in the special circumstances of the case, it is unclear whether the communication is compatible with the provisions of the Convention and the Optional Protocol on the involvement of children in armed conflict concerning jurisdiction, in particular articles 2 and 6 (1) thereof, respectively.
8.3The State party notes that the decisions to repatriate a number of Finnish children, together with their mothers, have been taken following case-by-case assessments, with the best interests of the child as a primary consideration, and using all available information to evaluate the possible risks for national security. Requests for consular assistance and/or repatriation have been registered by the Consular Services of the Ministry for Foreign Affairs. Requests from both the persons themselves and their relatives (in Finland) have been registered and acted upon with the condition that, in accordance with the applicable legislation concerning personal data guaranteeing the protection of the right to privacy, the relatives have not always been entitled to all personal information concerning the detained individuals.
8.4The State party submits that, since late 2019 and early 2020, the competent Finnish authorities have maintained regular contact with every detained individual who has been willing to engage with them. This has included both physical meetings in the camps and systematic, almost daily, remote contact. The repatriated 35 individuals previously detained in the camps in the north-eastern Syrian Arab Republic include all the individuals who had requested consular assistance from Finland, either directly or indirectly. The State party declares that, despite the best efforts of the Government, and for reasons beyond the Government’s control, the Finnish authorities have so far not been able to repatriate the approximately 10 individuals – most of them children – who remain in the camps.
8.5In this connection, the State party observes that none of the adult individuals still in detention have requested help for their children or for themselves or shown any disposition to engage with representatives of the Government of Finland. Under its national consular legislation, it is not possible for the public authorities to repatriate citizens against their will.
8.6The State party also mentions that the repatriation of Finnish children and their mothers has at no stage depended solely upon the will of its Government, because the so-called Autonomous Administration of North and East Syria, which is a non-State actor in control of the territory, has not been willing to hand over families – children together with their mothers – to State representatives without extensive negotiations on a wide variety of issues. Indeed, since December 2019, the State party has repeatedly and explicitly requested to repatriate Finnish children and their mothers, but the local authority has only consented to individual handovers after lengthy consultations. For example, the negotiations on a joint repatriation of some Finnish and German families in December 2020 lasted for almost one year before the local authority consented to it.
8.7Moreover, before June 2021, the stated policy of the local administration, as communicated to the State party, was to hand over only orphans and special humanitarian cases for repatriation and, for the overwhelming majority of European nationals, the primary objective of the authority was to put the adults on trial locally and not to hand families over for repatriation before that. The State party notes that the local trials have not materialized. In May 2021, despite a prior agreement, the local authority refused to hand one family over to Finnish representatives who had travelled to the north-eastern Syrian Arab Republic for that purpose.
8.8However, in June 2021, the position of the local authority changed. Since then it has shown more willingness to hand over European nationals to their respective States. This includes the family that the authority refused to hand over in May 2021, who were then successfully repatriated in July 2021.
8.9The State party notes that it has not been possible to repatriate only the children, thus separating them from their mothers, because the local authority in control of the camps – referring explicitly to the Convention – does not allow such separation, except in the most urgent medical cases. In turn, the Finnish authorities are not able to request the separation of children from their mothers, as the sole authority materially capable of effecting such a separation is a non-State armed group.
8.10The State party also notes that the authors do not specify or substantiate in any way the alleged violations of articles 6, 19, 24, 27 and 28. It further notes that, in December 2019, the Finnish authorities organized a paediatrician to be on call and at the mothers’ disposal for online consultations concerning the children’s health. In April 2020, another remote service – a Finnish school of distant learning – was introduced. The teaching was possible through mobile devices that the mothers had at their disposal. Altogether, 22 Finnish children in the Hawl camp took part in daily lessons and assignments, in Finnish language, mathematics, science and English. On 3 November 2021, Helsingin Sanomat, the newspaper with the widest circulation in Finland, published an interview with a teacher who had taught Finnish children in the camp.
8.11At present, the remote consultations with the paediatrician remain at the disposal of the individuals in the camps, although mobile connections have been severely weakened since the summer of 2021. The remote school has had to halt its operations temporarily, until the connections are restored. For the State party, it is evident that the Finnish authorities have, within their jurisdiction and to the maximum extent possible, ensured the survival and development of the children and taken all appropriate legislative, administrative, social and educational measures to protect them from all forms of physical and mental violence, injury and abuse, neglect and negligent treatment, maltreatment and exploitation, including sexual abuse.
8.12Finally, as to the alleged violations of articles 39 and 40 of the Convention and article 7 of the Optional Protocol on the involvement of children in armed conflict, the State party notes that the children who have already returned to Finland have benefited, for example, from the measures referred to in the Child Welfare Act. Thus, they have been provided with an opportunity to go to school or to attend pre-primary education. For the State party, it is evident that the Finnish authorities have, within their jurisdiction, taken all appropriate measures to promote the physical and psychological recovery, social reintegration and rehabilitation of the children.
8.13On 15 August 2022, the State party provided further details as to the support measures that are available for children returning from conflict areas and their close relatives.
Authors’ comments on the State party’s observations on the merits
9.In their comments dated 11 July 2022, the authors contested the State party’s submissions. In particular, they insist that they have not received any formal decision from the child protection authorities; there was therefore no specific decision that they could have appealed.
Issues and proceedings before the Committee
Consideration of admissibility
10.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 20 of its rules of procedure under the Optional Protocol, whether the communication is admissible under the Optional Protocol on a communications procedure.
10.2The Committee notes the State party’s uncontested statement that S.M., K.M. and J.M. left the Hawl camp on their own initiative, together with their mother, and arrived in Finland on 31 May 2020. In the light of this information, the Committee considers that the communication based on the State party’s failure to repatriate S.M., K.M. and J.M. has become moot and therefore decides to discontinue that part of the communication.
10.3The Committee notes the State party’s argument that the authors have not established that they acted with the consent of either the child victims or their mothers, contrary to the requirements of article 5 of the Optional Protocol. It also notes the State party’s argument that the authors have not provided the identities or established that they act with the consent of either the other 33 Finnish children held in the camps or their mothers. The Committee further notes the authors’ argument with regard to the child victims’ ages, the lack of means of communication and the fact that the present communication is clearly in the best interests of the children as the aim is to end their detention in the deplorable and life-threatening conditions in the camp. It notes the authors’ argument that 33 other children of Finnish nationality are in a similar situation. The Committee recalls that, pursuant to article 5 (2) of the Optional Protocol, a communication submitted on behalf of an individual or group of individuals is to be with their consent unless the author can justify acting on their behalf without such consent. The Committee considers that, in the particular circumstances of the present case, the child victims and their mothers have limited communication with the authors, which deprives them of any realistic possibility of providing written consent. It notes that the present communication appears to be in the best interests of the child victims. Therefore, the Committee considers that article 5 of the Optional Protocol does not constitute an obstacle to the admissibility of the present communication submitted on behalf of S.N., Mh.K. and Mu.K.
10.4The Committee considers, however, that the authors have failed to justify acting on behalf of the other children who are not their relatives, or to justify that the relatives of these children would be unable to file a communication with the Committee on their behalf. The Committee therefore considers that the authors lack ius standi to represent other children of Finnish nationality held in the camp. The Committee therefore declares the communication filed on behalf of those children inadmissible pursuant to article 5 (2) of the Optional Protocol.
10.5The Committee notes the State party’s argument that the communication is inadmissible for non-exhaustion of domestic remedies. The Committee also notes the authors’ statement that they filed requests for child protection measures to the child protection authority in Helsinki and to the Chancellor of Justice, to no avail, and that domestic remedies are unavailable and ineffective in the context of all requests for protection and/or repatriation of children and their mothers. The Committee further notes that the State party has not demonstrated, including through the jurisprudence of the national courts, that the authors had at their disposal any judicial remedy that was available and effective to contest the administrative refusal to repatriate their relatives. Under these circumstances, the Committee considers that there is no obstacle to the admissibility of the communication under article 7 (e) of the Optional Protocol.
10.6The Committee notes the State party’s argument that the authors’ claims are inadmissible ratione temporis to the extent that they refer to events that occurred before the entry into force of the Convention for the State party. However, the Committee also notes the authors’ declaration that their communication refers to events that occurred after the entry into force of the Convention for the State party, and that, through its inaction, the State party has allowed for the alleged violations to continue after that date. In this connection, the Committee further notes the State party’s assertion that it has maintained regular contact with every detained individual who has been willing to engage with it, through both physical meetings in the camps and systematic, almost daily, remote contact. In the light of the continued life-threatening situation in the camps and the fact that that situation was well known to the State party after the entry into force of the Optional Protocol, the Committee considers that the State party’s failure to remedy it engaged the Committee’s competence ratione temporis to examine the alleged violations of the Convention. The Committee therefore concludes that it is not precluded by article 7 (g) of the Optional Protocol from examining the communication.
10.7As to the issue of jurisdiction, the Committee notes the State party’s argument that it cannot be held accountable for situations that it did not create, over which it has no effective control and that are the actions of other States or non-State actors, solely on the ground that the children are its nationals. The State party further argues that the children are not under the jurisdiction of the State party because they are not under the effective control of the State party, either through its agents or through a local authority over which the State party has control.
10.8The Committee is being called upon to determine if the State party has competence ratione personae over the children detained in the Hawl camp in the north-eastern Syrian Arab Republic. The Committee recalls that, under the Convention, States have the obligation to respect and ensure the rights of the children within their jurisdiction, but the Convention does not limit a State’s jurisdiction to “territory”. A State may also have jurisdiction in respect of acts that are performed, or that produce effects, outside its national borders. In the migration context, the Committee has held that, under the Convention, States should take extraterritorial responsibility for the protection of children who are their nationals outside their territory through child-sensitive, rights-based consular protection. In its decision in C.E. v. Belgium, the Committee considered that Belgium had jurisdiction to ensure the rights of a child located in Morocco who had been separated from a Belgian-Moroccan couple who had taken her in under the kafalah system. The Committee recalls that it has already examined three similar communications against France, in relation to which it concluded that France did exercise jurisdiction over the children who were detained in the camps in the north-eastern Syrian Arab Republic.
10.9In the present case, the Committee notes that it is uncontested that the State party was aware of the situation of extreme vulnerability of the children, who were detained in a refugee camp in a conflict zone. Detention conditions have been internationally reported as deplorable. The detention conditions pose an imminent risk of irreparable harm to the children’s lives, their physical and mental integrity and their development. The Committee recognizes that the effective control over the camp was held by a non-State actor that had made it publicly known that it did not have the means or the will to care for the children and women detained in the camps and that it expected the detainees’ countries of nationality to repatriate them. The Committee notes that the Independent International Commission of Inquiry on the Syrian Arab Republic has recommended that countries of origin of foreign fighters take immediate steps towards repatriating such children as soon as possible. In the circumstances of the present case, the Committee observes that the State party, as the State of the children’s nationality, has the capability and the power to protect the rights of the children in question by taking action to repatriate them or provide other consular responses. These circumstances include the State party’s rapport with the Syrian Democratic Forces, the latter’s stated willingness to cooperate in repatriations and the fact that at least 26 children have been successfully repatriated from the camps in the north-eastern Syrian Arab Republic since 2019.
10.10In the light of the above, the Committee concludes that the State party does exercise jurisdiction over the children who are the subject of the communication.
10.11The Committee considers that the authors have failed to sufficiently substantiate their claims under article 40 of the Convention and article 7 of its Optional Protocol on the involvement of children in armed conflict, and declares them inadmissible under article 7 (f) of the Optional Protocol.
10.12However, the Committee finds that the authors’ claims under articles 2, 6, 19, 20, 24, 27, 28, 37 and 39 of the Convention have been sufficiently substantiated and proceeds to consider them on the merits.
Consideration of the merits
11.1The Committee has considered the present communication in the light of all the information made available to it by the parties, in accordance with article 10 (1) of the Optional Protocol.
11.2The Committee must determine, in particular, whether, in the circumstances of the present case, the State party’s failure to take protective measures in respect of the child victims who are being held in the Hawl camp constitutes a violation of the children’s rights under the Convention. The authors specifically accuse the State party of failing to repatriate the children and claim that repatriation is the only possible means of ensuring the children’s access to the necessary health care, as well as their right to life and development and their protection from arbitrary detention and ill-treatment.
11.3The Committee notes the State party’s argument that the repatriation of Finnish children detained in the Hawl camp does not depend solely on the willingness of the State party but also on the consent of the authorities in the north-eastern Syrian Arab Republic and of the children’s mothers. The Committee reiterates the point made in its previous similar cases of repatriation brought against France and considers that the State party, as the State of the children’s nationality and by virtue of the information available to it on the Finnish children being held in the Hawl camp and its relationship with the Syrian authorities, has the capability and the power to protect the rights of the children in question by taking action to repatriate them or provide other consular responses. This capability is demonstrated by the fact that the State party has already successfully repatriated at least 26 Finnish children without reporting any incidents relating to their repatriation, other than the delays in negotiations with local authorities, or any refusal to cooperate on the part of the Syrian Democratic Forces. The Committee notes that, on the contrary, the leaders of the Syrian Democratic Forces have repeatedly expressed their wish to see all foreign nationals being detained in the camps repatriated to their States of nationality, thus leaving it to the State party to decide whether or not to proceed with repatriation.
11.4The Committee notes the authors’ argument that the child victims, most of whom are young children, are barely surviving in the Hawl camp where they are being held, which is controlled by the Syrian Democratic Forces and situated in a war zone. They are living in inhuman sanitary conditions, lack basic necessities, including water, food and health care, and therefore face an imminent risk of death. The Committee recalls that States parties have an obligation to adopt positive measures to give full effect to the rights of all children under their jurisdiction, pursuant to article 4 of the Convention. It considers that this obligation is particularly strong when it comes to protecting children from ill-treatment and potential violations of their right to life. In the present case, the Committee notes that the imminent risk of death faced by the children being held in camps in the Syrian Arab Republic has been noted in several reports, including a conference room paper of the Independent International Commission of Inquiry on the Syrian Arab Republic submitted to the Human Rights Council at its forty-third session. The State party is well aware of the situation and has repatriated several of the children of its own accord.
11.5With respect to article 6 of the Convention, the Committee notes the authors’ arguments, which are supported by evidence, that the living conditions described, including the lack of food and water, pose an imminent and foreseeable threat to the lives of all the children who are being held in the Hawl camp. The Committee notes that the State party does not deny that the conditions in the camp are as described by the authors. In the 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 (1) of the Convention.
11.6As regards the authors’ claims under article 37 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, including in particular the lack of health care, food, water, sanitation facilities and education, constitutes cruel, inhuman or degrading treatment or punishment, in violation of article 37 (a) of the Convention.
11.7Given that the State party is aware of the prolonged detention of these Finnish children in a life-threatening situation and is capable of taking action, the Committee considers that the State party has a positive obligation to protect the children from an imminent risk of violation of their right to life and an actual violation of their right not to be subjected to cruel, inhuman or degrading treatment.
11.8In the light of the foregoing 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 article 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 constitutes a violation of article 6 (1) of the Convention.
11.9Having reached this conclusion, the Committee does not consider it necessary to examine whether the same facts constitute a violation of articles 2, 19, 20, 24, 27, 28 and 39 of the Convention.
12.The Committee, acting under article 10 (5) of the Optional Protocol on a communications procedure, finds that the facts before it disclose a violation of articles 6 (1) and 37 (a) of the Convention.
13.The State party should therefore provide the authors and the child victims with effective reparation for the violations suffered. The State party is also under an obligation to prevent similar violations in the future. In this regard, the Committee recommends that the State party:
(a)Take urgent positive measures to repatriate the child victims, acting in good faith;
(b)Support the reintegration and resettlement of each child who has been repatriated or resettled;
(c)Take additional measures, in the meantime, to mitigate the risks to the lives, survival and development of the child victims while they remain in the north-eastern Syrian Arab Republic.
14.In accordance with article 11 of the Optional Protocol, the Committee wishes to receive from the State party, as soon as possible and within 180 days, information about the steps taken to give effect to the Committee’s Views. The State party is requested to include information about any such steps in its reports to the Committee under article 44 of the Convention. The State party is requested to publish the present Views and to disseminate them widely.
Annex
Joint opinion of Committee members Luis Ernesto Pedernera Reyna and Benoit Van Keirsbilck (concurring)
1.While we agree with the conclusion reached by the Committee in this extremely difficult and sensitive case, we believe that the Committee should have examined the violation of articles 6 (2) and 37 (b) of the Convention.
2.This case is very similar to S .B. et al. v. France, although with a few differences. In those cases, the authors were slightly older and most of them were born in France, while some were born in the Syrian Arab Republic. In the present case, all the children were born in the Syrian Arab Republic and were under the age of 3 at the time of the submission of the communication.
3.The Committee rightly considered that the authors had sufficiently substantiated their claims as to the inhuman living conditions and the lack of basic necessities, including water, food and health care, which pose an imminent risk of death. Moreover, there is evidence that the children in the camps in the north-eastern Syrian Arab Republic are being held in terrible conditions and are being denied their rights to education and play, along with many other rights.
4.We take note of the report of the Independent International Commission of Inquiry on the Syrian Arab Republic submitted to the Human Rights Council at its fifty-first session, in which the Commission stated:
97.Nearly 58,000 individuals, including some 17,000 women and 37,000 children, remain unlawfully held in the Hawl and Rawj camps. More than 17,000 of the children are Iraqi. Compounded by the COVID-19 pandemic and the economic collapse across the Syrian Arab Republic, humanitarian conditions in the camps have plummeted. There is no regular water supply; insufficient sanitation; lack of adequate nutrition, health care and housing; and tents in the camps are in need of repair after years of exposure to the elements. In some areas, 10 families share one latrine. Everyday survival for children continues to be a struggle.
98.… The situation of children in the camps is particularly concerning. They lack sufficient health care and access to education and many are traumatized by the violence within the camp. Young boys in the camps risk being transferred to military detention centres alongside adult alleged former Da’esh fighters once they enter puberty, doomed to indefinite detention without legal recourse. Scores of boys aged between 10 and 12 held in the Hawl camp annex have been separated from their mothers, with some placed in military detention, where adult men are also detained.
…
103.The continuing blanket internment of nearly 58,000 individuals in the Hawl and Rawj camps cannot be justified and amounts to unlawful deprivation of liberty. The 37,000 children in this group are deprived of their most basic rights as children. There are reasonable grounds to believe that the conditions in both camps may amount to cruel or inhuman treatment, further compounded by the deteriorating security situation inside the camps and the related increasing risks to internees.
These statements, which are increasingly alarming, are well known to States and should lead them to react with all due speed and determination.
5.Under article 6 (2) of the Convention, States parties have an obligation to ensure to the maximum extent possible the survival and development of the child. The present case shows that the children’s right to survival has been severely compromised (one of the children almost died on several occasions) and that their right to development cannot possibly be realized, even to the smallest extent. All of the child victims are at risk of malnutrition, which will have a lasting impact on their development. The impact will be greater in the case of very young children who have injuries or specific illnesses, which is the case for all the children involved in this communication. The lack of access to early childhood education will also harm their development in the long term.
6.Having found a violation of article 37 (a) of the Convention and having concluded that the situation amounted to an actual violation of the child victims’ right not to be subjected to cruel, inhuman or degrading treatment, the Committee should have pursued its line of reasoning further and should have found a violation of article 6 (2), given that it is simply impossible for a child to develop fully in the context of inhuman and degrading treatment. The State party’s obligation to protect children from a violation of article 37 (a) overlaps with its obligation to protect children from a violation of article 6 (2). States parties are also responsible for omissions, pursuant to article 4 of the Convention. If the State party has an obligation to act but takes no measures to ensure the rights enshrined in the Convention, it must be held accountable for this omission. In order to comply with article 6 (2), the State party should have repatriated the children. The State party did not put forward any reasonable arguments as to why these particular children could not be repatriated, while others had been. The State party has therefore violated article 6 (2) of the Convention.
7.As regards article 37 (b) of the Convention, we reiterate that the Independent International Commission of Inquiry on the Syrian Arab Republic has stated that thousands of women and children remain unlawfully interned in camps across the north-eastern Syrian Arab Republic in the territory controlled by the Kurdish-led Syrian Democratic Forces coalition. Suspected of having links with Da’esh but left with no legal recourse and no end date to their ordeal, they have been left to fend for themselves in conditions that may amount to cruel or inhuman treatment. However, most foreign children remain deprived of their liberty, since their home countries refuse to repatriate them. Most are under 12 years old. No one has accused them of crimes, yet, for over three years, they have been held in horrifying conditions, deprived of their right to education, to play and to proper health care.
8.The child victims are not subject to any detention orders and no legal action is being taken against them locally. Furthermore, the continued detention of young children who are not parties to the conflict and should be treated primarily as victims is unlawful, disproportionate and amounts to arbitrary detention, in violation of article 37 (b) of the Convention, including the principles that detention should be used only as a measure of last resort and for the shortest appropriate period of time.
9.The question is whether the State party is responsible for the detention of the child victims and thus for the violation of article 37 (b) of the Convention. It did not take direct action resulting in their detention. However, as a State party, it had an obligation to take measures to ensure their return, in accordance with article 4 of the Convention. The State party failed to repatriate the child victims and this led to their prolonged, unlawful and arbitrary detention. Consequently, we are of the view that the State party had an obligation and was effectively able to prevent the prolonged detention of the child victims by repatriating them and is therefore responsible for its failure to do so under article 37 (b) of the Convention.
10. Finally, with regard to the 33 children mentioned in the communication who have not been identified in a more precise manner, with the result that the Committee has not been able to include them in the examination of the communication, we are of the opinion that all the information available to the international community, including the State party, requires that extremely thorough investigations be carried out to try to identify them and provide them with the most urgent assistance that their situation requires. The fact that apparently no adult is able to speak for them and defend their rights demonstrates that they are in an even more vulnerable situation, which implies that even greater efforts must be made by the State party to ensure respect for their fundamental rights.