Committee against Torture

Decision adopted by the Committee under article 22 of the Convention, concerning communication No. 1045/2020 * , ** , ***

Communication submitted by:P.D. (represented by counsel, Emmanuel Daoud, Marie Dosé and Ludovic Rivière)

Alleged victims:A.D., E.C., A.H., I.H. and Y.D.

State party:France

Date of complaint:27 November 2020 (initial submission)

Document references:Decision taken pursuant to rule 115 of the Committee’s rules of procedure, transmitted to the State party on 11 December 2020 (not issued in document form)

Date of adoption of decision:3 November 2023

Subject matter:Repatriation of children whose parents are linked to terrorist activities; protective measures; right to life; access to medical care; arbitrary detention

Procedural issues:Extraterritorial jurisdiction; exhaustion of domestic remedies

Substantive issues:Measures to prevent acts of torture; cruel, inhuman or degrading treatment or punishment

Articles of the Convention:2, 16 and 22

1.1The complainant is P.D., who was born in Boulogne-sur-Mer, France, in 1965, and who is acting on behalf of her daughter, A.D., who was born in 1988, and her grandchildren E.C., A.H., I.H. and Y.D., who were born in 2009, 2012, 2014 and 2018, respectively. The State party made the declaration under article 22 (1) of the Convention on 23 June 1988. The complainant is represented by counsel, Emmanuel Daoud, Marie Dosé and Ludovic Rivière.

1.2The victims are French citizens who are currently being held in the Roj camp in the north-east of the Syrian Arab Republic, which is under the control of the Syrian Democratic Forces. The complainant’s daughter suffers from colon cancer and is not receiving appropriate treatment. The complainant claims that, by refusing to repatriate her daughter and grandchildren, the French authorities are failing to protect French nationals who are being held in the Syrian Arab Republic and to put an end to their ill-treatment. The State party is putting the complainants’ relatives at risk of a serious and irreparable violation of their rights under the Convention. The complainant therefore considers that this refusal by the French authorities constitutes a violation of article 2 of the Convention, read in conjunction with article 16.

1.3On 14 December 2020, the Committee, acting through its Rapporteur on new complaints and interim measures, rejected the request for interim measures submitted by the complainant, who was seeking to have her relatives repatriated to France. However, the Committee asked the State party to take consular measures to ensure the integrity of the complainant’s relatives, including access to the medical care required by A.D., and to inform it of the measures taken to that end. On 16 April 2021, following a renewed request from the complainant for interim measures, the Committee reminded the State party of its obligation to inform it of the action taken on the consular measures instituted in respect of the complainant’s relatives.

Facts as submitted by the complainant

2.1The complainant maintains that her daughter, A.D., is suffering from advanced colon cancer and cannot obtain appropriate care in the Roj camp. She needs to be evacuated to France to ensure her survival, because the Roj camp does not have the necessary health infrastructure to treat this type of disease. Meanwhile, A.D.’s situation is worsening, and she is too weak to look after her four minor children, who are increasingly left to fend for themselves. On 17 November 2020, medical repatriation was requested for her, without success. The French authorities alone have the power to put an end to A.D.’s treatment, which contravenes the Convention, since the Syrian Democratic Forces – who have been calling for the repatriation of foreign nationals to their countries of origin for years – are unable to provide the necessary care for A.D., who is suffering from a life-threatening condition.

2.2In early 2019, the French authorities announced that they would repatriate 130 French nationals, including 70 children, who had been identified by the authorities. No follow-up action was ever taken after the announcement was made, and the French authorities have given no explanation for the reversal of their position. On 14 March 2019, at a hearing of the European Affairs Committee of the National Assembly, the Minister of State for the Interior, Laurent Nuñez, stated that the Syrian Democratic Forces had decided that the children should stay with their mothers and that no returns were therefore envisaged for the time being.

2.3With regard to the exhaustion of domestic remedies, the complainant states that, according to established case law, the decision of France as to whether to repatriate the French children who are currently being held in the north-east of the Syrian Arab Republic is intrinsically bound up with the country’s foreign affairs. As an act of State, the decision is not subject to appeal before the French courts, which routinely consider themselves to lack jurisdiction in this area. In a similar case, the Paris Administrative Court has already issued an order establishing that such decisions, rather than being the administrative responsibility of the State, are a diplomatic matter and can be considered an act of State. In this respect, the families of the women and children who are being held in the camps in the north-east of the Syrian Arab Republic have exhausted all domestic remedies, and their case has been deemed inadmissible without a court having examined this flagrant violation of the fundamental freedoms of French nationals. The decision on whether or not to repatriate these children is an act of State, rendering appeals to the administrative courts ineffective and moot. This situation leaves the complainant facing, in the words of the Committee, an “insurmountable procedural impediment”. In line with the Committee’s jurisprudence and the consistent case law of the French courts, the complainant therefore considers that domestic remedies are unavailable, ineffective and inefficient.

2.4With regard to recourse to another international body or settlement, the complainant states that, on 28 February 2019, she and 15 other complainants brought before the Committee on the Rights of the Child the situation of her four grandchildren, who are being held in the Roj camp, but not the situation of A.D. In that case, on 3 March 2019, the Committee on the Rights of the Child decided not to grant the request for interim measures. On 16 October 2019, the complainant and other individuals submitted to the Committee on the Rights of the Child a request for interim measures, namely the repatriation of women and children who were the daughters, sisters, nephews, nieces and grandchildren of the 16 complainants in those proceedings, following the Turkish offensive in the north-east of the Syrian Arab Republic. The Committee on the Rights of the Child did not accede to these requests, but asked the State party to take the necessary diplomatic measures to ensure the protection of the children’s right to life and integrity, including access to any medical care they might need, and to ensure their full protection against any risk of transfer to Iraq. The Committee also asked the State party to inform it of the steps taken to protect the rights of the children concerned, in accordance with the provisions of the Convention on the Rights of the Child. The complainant states that the case has not been brought before any other investigation or settlement body.

Complaint

3.1The complainant maintains that the situation in which her daughter, A.D., and her grandchildren find themselves is particularly critical and continues to deteriorate. A.D. is being held with her four children, aged between just 2 and 11 years, as her cancer continues to worsen. The complainant adds that she herself suffers from Lynch syndrome, an autosomal dominant disease associated with an elevated risk of developing colorectal or endometrial cancer. If the complainant’s daughter were to undergo surgery in the camp, she would not be able to look after her four young children due to the state of her health. In the complainant’s view, leaving her daughter in inadequate sanitary conditions, without care and while suffering from advanced colon cancer, should be considered contrary to the Convention.

3.2The complainant asserts that it is the responsibility of every State to take all necessary measures to put an end to situations that are in violation of the Convention. It is true that article 2 of the Convention refers to States’ jurisdiction in terms of territory. However, the interpretation of the Convention set out by the Committee in its general comment No. 2 (2007) provides a basis for a broader understanding of the concept of jurisdiction in that it affirms that States should also take steps to prevent violations of the rights of persons over whom they exercise jurisdiction, including personal jurisdiction. Thus, article 2 must be interpreted as imposing an obligation on States to take such measures as may be necessary to put an end to any form of treatment of their nationals that is prohibited under the Convention.

3.3Furthermore, under article 2, States parties have a positive obligation to use every possible means to prevent acts of torture. This obligation, when considered in conjunction with article 16 of the Convention, extends to cruel, inhuman and degrading treatment that does not amount to torture and requires States parties to remove all legal obstacles that would place a person at risk of treatment prohibited by the Convention.

3.4By refusing to repatriate French nationals who are victims of treatment prohibited by the Convention and are clearly at risk of torture, the State party is in breach of its obligations under article 2 of the Convention in conjunction with article 16. The complainant requests the Committee to take urgent protective measures and to find that the refusal to repatriate French nationals who are being subjected to treatment prohibited by the Convention and who face a risk of torture constitutes a violation of articles 2 and 16 of the Convention by the French authorities.

State party’s observations on admissibility and the merits

4.1On 23 June 2021, the State party submitted its observations on the admissibility and the merits of the communication. The State party challenged the admissibility of the communication on three grounds: lack of standing, lis pendens and lack of jurisdiction.

4.2The State party notes that the complainant has produced a power of attorney document and an identity document, but that she has omitted to include in the file the family records attesting to the family relationship between her and A.D. and A.D.’s children, who were born in the Syrian Arab Republic. The State party argues that the complainant refers to a telephone call made from the “Kurdish office”, but does not produce any evidence of A.D.’s desire to refer the matter to the Committee, or indeed of her desire to return to France. Consequently, the complainant has not established that she has standing to act on behalf of A.D.

4.3The State party notes that the complainant also submitted an individual communication to the Committee on the Rights of the Child, in which she sought a finding in respect of the fact that her grandchildren had not been repatriated, without mentioning the repatriation of her daughter. The State party asserts that there is no other international investigation or settlement procedure relevant to this case. The State party points out, however, that the present communication was submitted not only on behalf of A.D., but also on behalf of her minor children, whose repatriation was expressly requested. The State party therefore considers that the present communication is inadmissible in respect of the children.

4.4The State party considers that the mothers and children who are being held in the north-east of the Syrian Arab Republic are not under its jurisdiction. Article 2 of the Convention refers only to the concept of jurisdiction, which is by no means the same as the concept of nationality. States have undertaken to respect the rights set forth in international human rights instruments, including the Convention, only in the case of situations that fall within their jurisdiction and over which they exercise sovereignty and effective control. It is not possible to render a State responsible for the implementation of international human rights instruments in situations to which it has not given rise and over which it has no effective control simply by attributing to it the actions of other States or non-State actors. The Committee should bear in mind, on the one hand, what States undertake to do when they assume the obligation of adopting legislative, administrative, judicial and other measures to prevent the commission of acts of torture in any territory under their jurisdiction and, on the other hand, the consubstantial links between the concepts of jurisdiction and effective control. It is also not possible to artificially expand the concept of jurisdiction and thus give the Convention broader scope than States understood it to have when they ratified it.

4.5The State party notes that, in public international law, the concept of jurisdiction is primarily a territorial one; it is only in exceptional circumstances – i.e. when a State exercises effective control over a person located in another territory – that a State may exercise jurisdiction beyond its borders under the Convention. The State party notes that the Committee has, on these grounds, found other complaints dealing with acts committed outside the territory of a State party by agents of another State to be inadmissible ratione personae.

4.6The State party notes that, in the Committee’s general comment No. 2 (2007), the Committee recognizes that “territory” includes all areas where a State exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law. The Committee also considers that the scope of “territory” under article 2 must include situations where a State party exercises, directly or indirectly, de facto or de jure control over persons in detention, although it does not set out criteria for determining when a State party has effective control over a territory or over persons in detention.

4.7The State party notes that the European Court of Human Rights has found that a State party may exercise effective control over an area outside its own territory either directly through its armed forces or indirectly through a local subordinate administration. However, in order for a State to bear responsibility for a human rights violation committed in a territory that is not its own, it must be established that the State wields so decisive an influence over the administration of that territory that it does indeed exercise effective control and that, without its support, the local administration could not function. The International Court of Justice has developed a similar concept of extraterritorial jurisdiction based on effective control. Lastly, the Inter-American Commission on Human Rights has found extraterritorial jurisdiction to exist where a State party, through the acts of its agents abroad, exercised total and exclusive control over the persons whose rights were at issue.

4.8The State party submits that, in the light of this jurisprudence, the complainant’s argument that the State party has an obligation under the Convention to protect its nationals outside the “territory under its jurisdiction”, by virtue of their French nationality, is not in accordance with either the letter or the spirit of the Convention. According to the State party, the Committee’s general comment No. 2 (2007) does not by any means extend the scope of the Convention to all nationals of the State party; it indicates only that States bear responsibility for the acts and omissions of their officials and that States parties should take effective measures to prevent acts of torture not only in their sovereign territory but also in any territory under their jurisdiction. The State party also contends that article 5 (1) (c) of the Convention, which refers to the concept of “jurisdiction”, is intended to ensure the punishment of the violations covered by article 4 and the provision of a remedy for the victim but that it does not extend the jurisdiction of a State party within the meaning of article 2 of the Convention to all its nationals located outside its territory or in a territory under its effective control.

4.9Consequently, the complainant cannot infer that an individual falls within the jurisdiction of a State party merely because he or she is a national of that State, nor can she infer that States parties are obliged to take all necessary measures to prevent acts of torture against their nationals in cases where such persons are not under their effective control.

4.10In conclusion, the State party does not exercise any control or authority over A.D. or her children through its agents, nor does it exercise any territorial control over the camps in the north-east of the Syrian Arab Republic.

4.11With regard to the merits of the communication, the State party asserts that it cannot be concluded from either the Convention or the work or Views of the various United Nations committees that States parties have a positive obligation to repatriate their nationals who may be at risk of inhuman or degrading treatment. The European Court of Human Rights has not made reference to any such obligation either. In practice, such an obligation would conflict with the principle of the sovereignty of the States in which violations are allegedly being committed. It would also go beyond the commitment that States intended to make when they ratified the Convention, which cannot be interpreted in that way. Such an obligation would also be at odds with the approach adopted by the Committee in recognizing that States parties may use their discretion in assessing the de facto situations of their nationals.

4.12It does not follow from customary international law, international case law or the Vienna Convention on Consular Relations that States have an obligation to repatriate their nationals, including when they are likely to be subjected to inhuman or degrading treatment abroad. While repatriation may, in certain circumstances, be one of the ways in which consular assistance is provided, it is by no means an obligation for the sending State. The fact that the vast majority of States members of the Council of Europe are not taking steps to repatriate their nationals shows that there is a consensus on this matter, for if they were under such an obligation, they would all have opened negotiations to that end. Furthermore, neither the Council of State nor the Constitutional Council has found that the State party has any such obligation under domestic law. In any event, if the Committee were to find that the State party had an obligation to repatriate its nationals, this could only be understood to mean an obligation of conduct.

4.13The State party recalls that, as of 23 June 2021, it has repatriated more minors – 35 French children and 2 children from the Netherlands – than any other country in Western Europe and that it is actively contributing to the humanitarian response in support of displaced persons and refugees in the north-east of the Syrian Arab Republic.

4.14The State party emphasizes that, to date, the complainant has not provided any evidence that her relatives are still being held in the Roj camp.

4.15Lastly, contrary to what the Committee on the Rights of the Child stated in its decisions on the admissibility of three similar communications concerning France, the State party does not in any way have the “capability” to carry out the repatriations requested by the complainant. The repatriation of her relatives does not, as she claims, depend solely on the willingness of the Government of the State party to take action but on many factors, including the consent of the authorities in the north-east of the Syrian Arab Republic, who are detaining them; the consent of the mother to the repatriation of her children; the difficulties encountered by the Syrian Democratic Forces in identifying and locating foreign nationals; the fact that the French nationals who are being held in the Roj camp are under the control not of a sovereign State but of de facto authorities, which means that the mothers cannot be extradited; and the complexity and dangerousness of such missions, which naturally depend on the relations that each State has with the various actors in the armed conflict that continues to rage in the north-east of the Syrian Arab Republic. Furthermore, members of Da’esh hiding within the camp pose a security risk for repatriation operations. Several members of the camp’s internal security forces (Asayish) and several humanitarian workers have been murdered inside the camp in recent months. Consequently, the State party requests the Committee to find that it has not violated any of the provisions of the Convention.

Complainant’s comments on the State party’s observations on admissibility and the merits

5.1In comments submitted on 2 November 2021, the complainant made known her position with regard to the State party’s observations on the admissibility and the merits of the communication.

5.2With regard to the lack of standing raised by the State party, the complainant provided the Committee with her family records, which prove her relationship to A.D. and, by extension, to her four grandchildren, who are being held in the Roj camp. In response to the State party’s argument that there is no documentary evidence of her daughter A.D.’s desire to appeal to the Committee or to return to France, the complainant points out that she has already transcribed, in her communication, the voice messages sent to her by her daughter on 17 November 2020, in which she requests repatriation for medical reasons so that she can undergo surgery and bring her children home. The complainant stresses that the State party cannot purport to require further documents, which would further endanger the lives and integrity of A.D. and her children.

5.3The complainant does not dispute that she submitted a communication to the Committee on the Rights of the Child concerning the repatriation of her four grandchildren or that the Committee on the Rights of the Child declared the communication admissible. However, she argues that this procedure in no way concerned A.D., whose repatriation was not raised at the time, and that the present communication does not concern the same parties or the same substantive rights. The complainant maintains, firstly, that the complaint examined by the Committee on the Rights of the Child – which must be read in the light of the principle of the best interests of the child – relates solely to the examination of the violation by the State party of its treaty obligations in respect of some 30 children who are being held in camps in the north-east of the Syrian Arab Republic, including the four children who are the subject of the present communication, whereas the present communication seeks to examine the violations committed in respect of a family, namely a mother and her children; the interests involved are therefore not the same. The complainant also maintains that, with regard to substantive rights, the complaint brought before the Committee on the Rights of the Child alleges violations of, inter alia, the right to non-discrimination, the right to regard the best interests of the child as a primary consideration, the right to family life, the right to health and, lastly, the right not to be subjected to torture or cruel, inhuman or degrading treatment.

5.4Conversely, before the Committee against Torture, it is solely the State party’s obligation to take all effective measures to prevent acts of torture or ill-treatment of persons under its jurisdiction that is at issue. In the light of the substantive rights invoked, it cannot therefore be considered that the present communication is currently being examined by another international body. The complainant therefore considers that the communication should be deemed admissible in respect of A.D. and her four children. In the alternative, the complainant points out that, should the Committee conclude that the same issue is being examined by the Committee on the Rights of the Child, the communication pending before the latter was lodged on behalf of the complainant’s minor grandchildren only, and not on behalf of her daughter, whose repatriation was not requested at the time. Consequently, there is no other international procedure of investigation or settlement concerning her; the communication is therefore admissible at least in respect of A.D., which is not contested by the State party.

5.5The complainant rejects the claim that the complaint is inadmissible for lack of jurisdiction. Article 2 of the Convention does not determine the general scope of all the rights enshrined in the Convention but simply establishes that States parties have a positive obligation to prevent acts of torture committed in any territory under their jurisdiction. The complainant claims that French mothers and children who are being held in the north-east of the Syrian Arab Republic fall under the jurisdiction of the State party within the meaning of article 22 of the Convention. First of all, contrary to the State party’s assertion, it is widely considered that a State exercises jurisdiction when a decision taken by its agents in national territory affects the legal situation of persons outside the territory. According to the complainant, this is all the more true in situations where the State exercises personal jurisdiction over its nationals who are outside its national territory. The complainant considers that for a national of a State who is outside the national territory to fall within the State’s jurisdiction, it is necessary for the State to have affected the legal situation of the person concerned through the acts or omissions of its agents. In the present case, by deciding not to repatriate the French mothers and children who are being held in the north‑east of the Syrian Arab Republic and who are, consequently, facing treatment that is contrary to the Convention, the State party has exercised its jurisdiction over them within the meaning of article 22 of the Convention.

5.6The complainant points out that the State party confuses “extraterritorial act of the State” with “scope of application of the Convention”. She considers that it is not necessary for State agents to be located outside the national territory for the Convention to apply to individuals who are also located outside the national territory. The complainant argues that international jurisprudence holds that a State can exercise its “jurisdiction” through decisions taken on national territory that affect the situation of individuals located outside national territory, when that State exercises its jurisdictional competence over them, either when the authorities of a State open an investigation into a death that occurred outside national territory, or through requests for extradition, requests for authorization to enter the territory or the issuance of arrest warrants. The complainant also refers to the decisions of the Committee on the Rights of the Child on the admissibility of three similar cases involving France, in which the Committee found that the communications did indeed fall within the jurisdiction of the State party.

5.7According to the complainant, it is clear that the detention of French mothers and children in inhuman conditions in the Roj camp is not, as the State party claims, a direct consequence of the control exercised by the authorities of the north-east of the Syrian Arab Republic over the camp and its inhabitants but rather results solely from measures taken by the French authorities alone, namely the decision not to repatriate them. Only the State party has the power to authorize their repatriation and to end their arbitrary detention in the Roj camp.

5.8With regard to the merits, the complainant insists that the State party has failed to comply with its obligation under the Convention to put an end to the inhuman and degrading treatment to which her relatives are being subjected and has therefore violated articles 2 (1) and 16 of the Convention. Indeed, despite its full knowledge of acts contrary to the Convention committed by non-State actors, the State party has decided not to repatriate the French mothers and children who are being held in the Roj camp – with the exception of several orphans in 2019 – even though it exercises control over their situation. The inhuman and degrading treatment suffered by the mothers and children who are being held in the north‑east of the Syrian Arab Republic is mainly linked to the conditions of detention in the Roj camp: overcrowding, disease, cold, malnutrition, unsanitary conditions and lack of health care. In addition, the Syrian Democratic Forces have repeatedly urged all States to repatriate their nationals. Nevertheless, the State party has decided to allow these acts of ill-treatment to continue by refusing to repatriate the victims. The complainant therefore accuses the State party of having taken no measures to put an end to the acts perpetrated against her daughter and grandchildren by the non-State actors operating in the Roj camp. By refusing to take action, the State party has effectively exercised control over the victims’ situation.

5.9The complainant further considers that the serious and rapid deterioration in her daughter’s state of health, particularly in the absence of appropriate care, means that she is at imminent risk of death. She considers that her daughter’s survival depends on access to appropriate medical care, which she cannot in any way obtain in the Roj camp or in the Qamishli hospital. The complainant further notes that the lack of access to appropriate care may constitute ill-treatment within the meaning of the Convention, in that it has given rise to and perpetuates a particularly serious situation that poses an immediate threat to her daughter’s life, and that the severity of this treatment undoubtedly exceeds the minimum threshold required to qualify as ill-treatment prohibited by the Convention. She adds that the Committee has already recognized that “ill-treatment, which may seriously affect the physical and mental health of the mistreated individual” can be incompatible with the right to life.

5.10The complainant explains that she is not arguing that the State party is under a pure and simple obligation to repatriate the victims but rather that it has a general obligation to implement the Convention, with regard both to acts of torture (article 2 (1)) and to acts of inhuman and degrading treatment (article 16). This means that, although repatriation is not the subject of a specific obligation established by the Convention, it is the only way for the State party to fulfil its obligations under that instrument.

5.11With regard to the whereabouts of her relatives, the complainant points out that the French State has repatriated several orphans since 2019 and has promised that further repatriation operations could be agreed and organized if local security conditions allowed, if the authorities in north-east Syria gave their consent and if the children could be identified and located. The complainant further argues that the State party is well aware of the conditions of detention in the Syrian camps, which constitute inhuman and degrading treatment.

5.12Lastly, the complainant alleges a violation of article 22 of the Convention on the basis that, although the Committee decided not to request interim measures, it requested the State party to take the necessary consular measures to ensure the integrity of the persons concerned, including access to the medical care required by A.D. The State party has not taken any measures to that effect, which indicates a failure to comply with its obligations under article 22 of the Convention.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any claim submitted in a communication, the Committee must decide whether it is admissible under article 22 of the Convention.

6.2The Committee recalls its jurisprudence according to which it does not consider any complaint from an individual under article 22 (5) (a) of the Convention unless it has ascertained that the same matter has not been, and is not being, examined under another procedure of international investigation or settlement. The Committee considers that a complaint has been or is being examined by another procedure of international investigation or settlement if the examination by the other procedure related or relates to the same matter within the meaning of article 22 (5) (a), which must be understood as relating to the same parties, the same facts and the same substantive rights.

6.3The Committee notes that on 1 March 2019, the complainant submitted a communication to the Committee on the Rights of the Child against France concerning the repatriation of her grandchildren, in which she alleged a violation of, inter alia, article 37 of the Convention on the Rights of the Child. On 4 February 2021, the Committee on the Rights of the Child issued a decision declaring the communication admissible. The Committee further notes that, on 8 February 2022, the Committee on the Rights of the Child issued its decision on the merits of the case, in which it found a violation of article 37 of the Convention on the Rights of the Child and requested that A.D.’s children be repatriated. The Committee considers that the present communication concerns the same parties, relates to the same facts and raises the same substantive rights with respect to A.D.’s children. Consequently, the Committee considers that, under article 22 (5) (a) of the Convention, the present communication is inadmissible with respect to the minors E.C., A.H., I.H. and Y.D. The Committee also notes that the parties agree that the communication submitted to the Committee on the Rights of the Child does not in any way concern A.D., whose repatriation was not mentioned in communication No. 77/2019. Consequently, the present communication is admissible with respect to A.D.

6.4The Committee further notes that the State party has contested the admissibility of the complaint on the grounds of a lack of authorization. It notes, however, that the complainant subsequently submitted copies of the victims’ family records, which demonstrate her ties of kinship to the persons being held in the north-east of the Syrian Arab Republic. Consequently, given that the circumstances in which A.D. finds herself do not afford her a realistic opportunity to provide written authorization and since the communication was clearly submitted with the aim of enabling her to return to France, the Committee is of the view that it is not prevented by rule 113 (a) of its rules of procedure from considering the present complaint.

6.5Lastly, the Committee notes that the State party is challenging the admissibility of the communication on the ground that A.D., who is being held in the north-east of the Syrian Arab Republic, is not under its jurisdiction. The State party maintains that it does not have effective control over the camps in the north-east of the Syrian Arab Republic and does not exercise any control or authority through its agents. The State party also rejects the idea that it has an obligation under the Convention to protect its nationals on the basis of their nationality, even outside the territory under its jurisdiction.

6.6On the other hand, the complainant argues that A.D. falls under the jurisdiction of the State party within the meaning of article 22 of the Convention. The complainant insists that, even though A.D. is outside national territory, as a national of the State party, she falls within its jurisdiction insofar as the acts or omissions of its agents affect her legal situation. In the present case, the complainant submits that, by refusing to repatriate the French mothers and children who are being held in the north-east of the Syrian Arab Republic, the State party is putting them at risk of treatment that is contrary to the Convention.

6.7The Committee recalls that, pursuant to article 22 of the Convention, it receives and considers communications from or on behalf of individuals subject to a State party’s jurisdiction who claim to be victims of a violation by that State party of the provisions of the Convention, provided that the State party has declared that it recognizes the competence of the Committee in that regard. As the Committee clarified in its general comment No. 2 (2007), the concept of jurisdiction is not restricted to national territory but includes all areas where the State party exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law, including detention facilities or other areas over which a State party exercises factual or effective control.

6.8In the present case, the Committee notes that the State party does not deny having been informed by the complainant of the situation of vulnerability of her relatives, who are being held in refugee camps in a conflict zone. The detention conditions have been widely reported in the media as deplorable and have been brought to the attention of the State party’s authorities through the various complaints filed by the complainant at the national level. These conditions of detention pose an imminent risk of irreparable harm to the life and physical and mental integrity of A.D. The Committee also notes that effective control was being exercised over the camps 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 who are being held in the camps and that it expected their countries of nationality to repatriate them. In the circumstances of the present case, the Committee considers that the State party, as the State of nationality of the women and children who are being held in the camps, has the capability and the power to protect their rights by taking action to repatriate them or providing other consular responses. These circumstances include the State party’s relations with the Syrian Democratic Forces, the latter’s willingness to cooperate and the fact that, by its own admission, the State party has repatriated more minors from camps in the north-east of the Syrian Arab Republic – 171 minors in total, including 169 French children and 2 children from the Netherlands – than any other country in Western Europe.

6.9In the light of the foregoing, the Committee concludes that A.D. does fall within the jurisdiction of the State party and considers that the complaint raises substantive issues under articles 2 and 16 of the Convention that should be examined on the merits. As the Committee finds no obstacles to admissibility, it declares the communication admissible and proceeds with its consideration of the merits.

Consideration of the merits

7.1The Committee has considered the present communication in the light of all the information made available to it by the parties, in accordance with article 22 (4) of the Convention.

7.2The Committee notes the conflicting arguments put forward by the parties as to whether States have an obligation to repatriate their nationals under public international law or international human rights law. In this connection, the Committee notes the recent decision of the European Court of Human Rights in a similar case involving France in which it ruled that “there is no obligation under international treaty law or customary international law for States to repatriate their nationals”. However, the Committee considers that the question to be resolved is whether, in the circumstances of the present communication, the State party, as the State of nationality of A.D., who is being held in the north-east of the Syrian Arab Republic, and having already, on several occasions, used its capability and power to protect its citizens in similar situations by repatriating them, has taken all effective administrative and other measures to put an end to acts of torture or ill-treatment against its citizens.

7.3The Committee notes the State party’s arguments that it does not have the capability to repatriate A.D., as that course of action does not depend solely on the willingness of the State party but also on the consent of the authorities in the north-east of the Syrian Arab Republic, and that it is hindered by the difficulties encountered in identifying A.D. and in ensuring the security of such operations. However, the Committee notes that the State party has already successfully repatriated 169 French children without reporting any incidents relating to their repatriation or any refusal to cooperate on the part of the Syrian Democratic Forces. The Committee notes that, on the contrary, the Syrian Democratic Forces have repeatedly expressed their wish for all foreign nationals who are being held in the camps to be repatriated to their States of nationality, thus leaving it to the State party to decide whether or not to proceed with repatriation. The Committee therefore considers that the State party has the capacity and power to prevent A.D. from being subjected to acts that constitute ill‑treatment by taking steps to repatriate her, provide her with the care she requires, as necessary, and institute other consular measures on her behalf.

7.4The Committee notes the complainant’s argument that A.D. and her children are barely surviving in the prison camps where they are being held, which are controlled by the Syrian Democratic Forces and situated in a war zone, and that they are living in inhuman and degrading sanitary conditions. The State party asserts that the complainant has not shown that A.D. and her children are at risk of being subjected to violations of the Convention. However, the Committee notes that the security situation, the restrictions on movement and the sanitary conditions described apply to all people who are being held in the camps in the north-east of the Syrian Arab Republic, including A.D., who must face the same detention and living conditions as the other people living in the camps. The Committee is of the view that the causes of harm have been sufficiently identified and that there is no reason to believe that A.D. and her children are at less risk than other people in the camps.

7.5The Committee recalls that States parties have an obligation, under article 2 of the Convention, to take positive measures to effectively prevent torture and ill-treatment. It considers that the State party, which has repatriated several children of its own accord, is well aware of the situation in the camps in the north-east of the Syrian Arab Republic. Moreover, the Committee notes that the State party does not deny that the conditions in the camps are as described by the complainant. Consequently, the Committee considers that there is sufficient information to establish that the conditions in which A.D. is being held in the Roj camp, including in particular the lack of health care, food, water and sanitation facilities, amount to inhuman and degrading treatment, as prohibited by article 16 of the Convention. Furthermore, given that the State party is aware of the prolonged detention of A.D. in a situation of ill-treatment and is capable of taking action, the Committee considers that the State party has a positive obligation to protect her from an actual violation of her right not to be subjected to acts of cruel, inhuman or degrading treatment or punishment. The Committee is of the view that although the State party cannot, for lack of territorial jurisdiction, be considered to have caused the violations suffered by its nationals, it remains under an obligation to take all necessary and possible measures to protect its nationals from serious human rights violations. In conclusion, the State party’s failure to protect A.D. by taking effective measures to put an end to such acts would constitute a violation of article 2 (1) of the Convention, read in conjunction with article 16.

8.The Committee, acting under article 22 (7) of the Convention, is of the view that, in the circumstances of the present communication, the State party’s failure to take further measures reasonably in its powers to repatriate A.D. to enable her to obtain the appropriate care would constitute a violation by the State party of article 2 (1) of the Convention, read in conjunction with article 16.

9.The Committee invites the State party to take all reasonable measures, including the repatriation of A.D., and to ensure that she has access to the medical care that she requires, as necessary.

10.Pursuant to rule 118 (5) of its rules of procedure, the Committee invites the State party to inform it, within 90 days of the date of transmittal of the present decision, of the steps it has taken to respond to the above observations.

Annex

Joint opinion of Committee members Todd Buchwald, Liu Huawen, Maeda Naoko and Bakhtiyar Tuzmukhamedov (dissenting)

For the reasons set out in our dissenting opinions in C.P. et al. v. France, and without in any way meaning to minimize the importance of States parties to the Convention taking appropriate steps to repatriate their nationals or to suggest that they might not be under an obligation to do so under other conventions or under customary international law, we would have decided that the present communication was inadmissible.