Refusal of the authorities to satisfy requests for the repatriation of children from Syria! Condemnation from the Court
JUDGMENT
H.F. and others v. France 14.09.2022 (app. no. 24384/19 and 44234/02)
SUMMARY
The case concerned the refusal to grant the applicants’ requests for the repatriation by the French
authorities of their daughters and grandchildren, who are being held in camps in north-eastern Syria
run by the Syrian Democratic Forces (SDF). Before the Court they complained that the refusal
exposed their family members to inhuman and degrading treatment in breach of Article 3 of the
Convention and entailed a violation of their right to enter national territory under Article 3 § 2 of
Protocol No. 4.
The Court began by finding that the family members in question were not within France’s
jurisdiction for the purposes of the Article 3 complaint but that in the particular circumstances of the
case there was a jurisdictional link between them and France, within the meaning of Article 1 of the
Convention, as regards the complaint under Article 3 § 2 of Protocol No. 4.
On the merits, the Court first found that the French women and their children did not enjoy a
general right to repatriation on the basis of the right under Article 3 § 2 of Protocol No. 4 to enter
national territory.
It went on to explain that the protection afforded by that provision might, however, give rise to
positive obligations of the State in exceptional circumstances relating to extraterritorial factors, such
as those which endangered the health and life of the nationals in the camps, in particular the
children. In such a situation, in fulfilling its positive obligation to enable the effective exercise of the
right to enter its territory the State had to afford appropriate safeguards against the risk of
arbitrariness in the relevant process. There had to be a review by an independent body of the
lawfulness of the decision denying the request for repatriation, whether the competent authority
had merely refused to grant it or had been unsuccessful in any steps it had taken to act upon it. Such
review should also enable the person concerned to be made aware, even summarily, of the grounds
for the decision and thus to verify that those grounds had a sufficient and reasonable factual basis
and that there was no arbitrariness in any of the justifications that might legitimately be relied upon
by the executive authorities, whether compelling public interest considerations or any legal,
diplomatic or material difficulties. Where a request for repatriation was made on behalf of minors,
the review had to ensure in particular that the competent authorities had taken due account of the
children’s best interests, together with their particular vulnerability and specific needs. In the
present case the Court found that there were exceptional circumstances, as regards the situation of
the daughters and grandchildren, which triggered the obligation to afford safeguards against
arbitrariness in the decision-making process.
PROVISIONS
Article 1
Article 3 par. 2 of the 4rth Additional Protocol
PRINCIPAL FACTS
The applicants, H.F. and M.F., born in 1958 and 1954, and J.D. and A.D., both born in 1955, are
French nationals. They are the parents of their respective daughters, who left France for Syria with
their partners, to go to the territory controlled by the so-called Islamic State (also known as Daesh),
and the grandparents of children subsequently born there.
In 2017 Daesh lost control of the city of Raqqa, its capital, to the SDF, the local force engaged in the
fight against Daesh dominated by the Kurdish militia of the People’s Protection Units (YPG). From
March 2019 onwards, the SDF controlled all Syrian territory east of the Euphrates River. The SDF
offensive caused tens of thousands of men, women and children to flee, the majority of them
families of Daesh fighters. Most of them, including the applicants’ daughters, were reportedly
arrested by the SDF during and following the final battle, and taken to al-Hol camp between
December 2018 and March 2019. The camps of al-Hol and Roj were placed under the military
supervision of the SDF and are run by the “Autonomous Administration of North and East Syria” (the
“AANES”).
According to the International Committee of the Red Cross (ICRC), 70,000 people were living in al-
Hol camp as of July 2019. At that time the ICRC regional director described the situation in the camps
as “apocalyptic”. According to a press release issued on 29 March 2021, following a visit by its
president, this figure was reduced to 62,000, “two thirds [of whom] [were] children, many of them
orphaned or separated from family”. The press release further stated that those children were
growing up in harsh and often very dangerous conditions.
According to reports by the NGO Rights and Security International (RSI), published on 25 November
2020 and 13 October 2021, the children being held in the camps of al-Hol and Roj were suffering
from malnutrition, dehydration, sometimes war injuries and post-traumatic stress and were
reportedly at risk of violence and sexual exploitation; the weather conditions were extreme; the
detention conditions were inhumane and degrading; the detainees were exposed to treatment that
could be characterised as torture; there was an atmosphere of violence, caused by tensions between
women still adhering to Daesh and others, as well as by the violent conduct of the camp guards.
Between March 2019 and January 2021 France organised the repatriation of children from camps in
north-eastern Syria on a “case-by-case” basis. It sent five missions to Syria and repatriated thirty-five
French minors, “orphans, unaccompanied minors or humanitarian cases”.
In a press release of 5 July 2022, the French Foreign Ministry announced that France had organised
the return to national territory of a further thirty-five minors of French nationality and sixteen
mothers. In a letter of 13 July 2022, the lawyer for the applicants informed the Court that their
daughters and grandchildren were not among the French nationals repatriated, as confirmed by the
Government in a letter of 28 July 2022.
The situation of the applicants’ family members since their departure for Syria
Application no. 24384/19
The applicants’ daughter, L., who was born in 1991 in Paris, left France on 1 July 2014 together with
her partner to travel to the territory in Syria then controlled by the so-called Islamic State. On
16 December 2016 a judicial investigation was opened against her on a charge of criminal conspiracy
to commit acts of terrorism, and a warrant was issued. L. and her partner, who died in February
2018, had two children in Syria, born on 14 December 2014 and 24 February 2016.
According to the applicants, L. and her two children were arrested on 4 February 2019 and were
initially held in al-Hol camp. The applicants stated that they had not received news of L. since June
2020. She was thought to be held in one of the two camps or with her two children in an
“underground prison”.
Application no. 44234/20
The applicants’ daughter M., who was born in 1989 in Angers, left France in early July 2015 with her
partner to travel to Mosul in Iraq and then, a year later, to Syria. M. gave birth to a child on
28 January 2019. Mother and child were thought to have been held in al-Hol camp from March 2019
onwards then transferred in 2020 to Roj.
On 26 June 2020 the applicants’ counsel sent an urgent e-mail to the justice adviser of the French
President and to the Foreign Ministry, without receiving any reply, in which she expressed the
concern of the families following the transfer of several French nationals and their children by the
guards of al-Hol camp to an unknown location.
Proceedings seeking repatriation
Application no. 24384/19
In an e-mail sent on 31 October 2018 to the Foreign Ministry, which remained unanswered, the
applicants requested the repatriation of their daughter, who was “very weak”, together with their
grandchildren.
In an application registered on 5 April 2019 they called upon the urgent applications judge of the
Paris Administrative Court to enjoin the Foreign Ministry to organise the repatriation of their
daughter and grandchildren to France. In support of their application they produced their request
for repatriation of 31 October 2018 and the requests submitted to the French President a few
months earlier by their counsel, on behalf of several women and children who were held in the
camps in north-eastern Syria, together with the response of the President’s chief of staff. This
response stated that the individuals concerned had deliberately left to join a terrorist organisation at
war with the coalition in which France was participating, and that it was up to the local authorities to
decide whether they were liable for any offences.
In a decision of 10 April 2019 the urgent applications judge dismissed the applicants’ case.
In two letters dated 11 April 2019, counsel for the applicants again wrote to the French President
and to the Foreign Ministry seeking the repatriation of L. and her two children.
The applicants appealed against the decision of 10 April 2019 before the Conseil d’État, which, in a
decision of 23 April 2019, dismissed their case.
Application no. 44234/20
In two letters of 29 April 2019, which remained unanswered, to the Foreign Ministry and the French
President, the applicants’ lawyer sought the urgent repatriation of M. and her child to France. They
submitted an application to that effect to the urgent applications judge of the Paris Administrative
Court.
In a decision of 7 May 2020 that judge dismissed their request on the grounds that the court did not
have jurisdiction to examine it, as the requested measure was indissociable from France’s
international relations. In a decision of 25 May 2020 the judge gave a similar ruling on a request to
set aside the Ministry’s tacit refusal to organise the repatriation. The case was similarly dismissed on
the merits by a decision of the same date.
On 15 September 2020 the Conseil d’État declared inadmissible an appeal on points of law lodged by
the applicants against the decision of 7 May 2020.
In parallel the applicants brought an action before the Paris tribunal judiciaire (general first-instance
court) to establish the existence of an illegal administrative act, on the grounds that the French
authorities had wilfully omitted to put an end to the arbitrariness of the detention of their daughter
and grandson and had refused to arrange their repatriation. In a judgment of 18 May 2020 the court
declared that it had no jurisdiction to examine the matter.
THE DECISION OF THE COURT…
Admissibility:
(a) Locus Standi– There were exceptional circumstances enabling the Court to conclude that the applicants had locus standi to raise the complaints as representatives of their daughters and grandchildren, the direct victims who were prevented from lodging applications with the Court.
(b) Jurisdiction – The Court had to ascertain whether it could be considered that on account, first, of the bond of nationality between the family members concerned and the respondent State and, second, the decision of the latter not to repatriate them, and therefore not to exercise its diplomatic or consular jurisdiction in respect of them, they were capable of falling within its jurisdiction for the purposes of Article 3 and Article 3 § 2 of Protocol No. 4. In this regard, the present case required the Court to address the possibility that the State’s obligation under Article 1 to recognise Convention rights may be “divided and tailored”.
The Court’s case-law had recognised a number of special features capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. The existence of such features had to be determined with reference to the particular facts of a case. In the present case, in order to determine whether the Convention and the Protocols thereto were applicable, the Court addressed three aspects finding as follows:
(i) Whether France exercised control over the relevant area – France neither exercised “effective control” over the territory of north-eastern Syria nor had any “authority” or “control” over the applicants’ family members who were being held in the camps in that region.
(ii) Whether a jurisdictional link was created by the opening of domestic proceedings – The criminal proceedings brought by the French authorities against L. and M. for participation in a terrorist association did not relate to the alleged violations and therefore had no bearing on whether the facts complained of fell within France’s jurisdiction. An interpretation to the contrary would dissuade States from opening investigations in this context. Further, in view of the substance of the complaints raised, the repatriation proceedings had no direct impact on the question whether those fell within France’s jurisdiction and thus could not suffice for an extraterritorial jurisdictional link to be triggered.
(iii) Whether there were connecting ties with the respondent State –
Article 3:
Neither the French nationality of the applicants’ family members, nor the mere decision of the French authorities not to repatriate them had the effect of bringing them within the scope of France’s jurisdiction as regards the ill-treatment to which they were subjected in Syrian camps under Kurdish control. Such an extension of the Convention’s scope found no support in the case-law. First, the mere fact that decisions taken at national level have had an impact on the situation of persons residing abroad is not such as to establish the jurisdiction of the State concerned over them outside its territory. Secondly, neither domestic nor international law required the State to act on behalf of its nationals and to repatriate them. Moreover, the Convention did not guarantee the right to diplomatic or consular protection. Thirdly, and in spite of the stated desire of local non-State authorities that the States concerned should repatriate their nationals, France would have to negotiate with them as to the principle and conditions of any such operation and to organise its implementation, which would inevitably take place in Syria.
Conclusion: inadmissible (outside jurisdiction).
Article 3 of Protocol No. 4:
This was the first time that the Court had been called upon to decide on the existence of a jurisdictional link between a State and its “nationals” in respect of a complaint under this provision. The fact that the latter applied only to nationals could not be regarded as a sufficient circumstance for the purpose of establishing France’s jurisdiction within the meaning of Article 1. Nationality, albeit a factor ordinarily taken into account as a basis for the extraterritorial exercise of jurisdiction by a State, could not constitute an autonomous basis of jurisdiction. In the present case, the protection by France of the applicants’ family members would require negotiation with the Kurdish authorities which were holding them, or even an intervention on Kurdish-administered territory.
The refusal to grant the applicants’ request had not formally deprived their family members of the right to enter France, nor had it prevented them from doing so. Nevertheless, the question arose as to whether their cross-border situation might have consequences for France’s jurisdiction ratione loci and ratione personae. In this connection, both the subject matter and scope of the right guaranteed by Article 3 § 2 of Protocol No. 4 implied that it should benefit a State Party’s nationals who were outside its jurisdiction. The Court also emphasised that the interpretation of the provisions of Article 3 of Protocol No. 4, had to consider the context of the contemporary phenomena of increasing globalisation and international mobility, which presented States with new challenges in terms of security and defence in the fields of diplomatic and consular protection, international humanitarian law and international cooperation. The right to enter a State lay at the heart of current issues related to the combat against terrorism and to national security. If Article 3 § 2 of Protocol No. 4 were to apply only to nationals who arrived at the national border or who had no travel documents it would be deprived of effectiveness in the contemporary context.
It could not be excluded therefore that certain circumstances relating to the situation of individuals who wished to enter the State of which they were nationals, relying on the rights they derived from Article 3 § 2 of Protocol No. 4, might give rise to a jurisdictional link with that State for the purposes of Article 1. However, it was not necessary to define those circumstances in abstracto since they would necessarily depend on the specific features of each case and might vary considerably from one case to another.
In the present case, in addition to the legal link between the State and its nationals, there were a number of special features which related to the situation of the camps in north-eastern Syria and enabled France’s jurisdiction, within the meaning of Article 1, to be established in respect of the complaint raised under Article 3 § 2 of Protocol No. 4: the applicants had made official repatriation and assistance requests; those requests had had been made on the basis of the fundamental values of the democratic societies, while their family members had been facing a real and immediate threat to their lives and physical well-being, on account both of the living conditions and safety concerns in the camps, which were incompatible with respect for human dignity, and of the health of those family members and the extreme vulnerability of the children, in particular, in view of their young age; it had been materially impossible for them to leave the camps, or any other place where they might be held incommunicado, in order to reach the French or any other State border without the assistance of the French authorities; and the Kurdish authorities had indicated their willingness to hand over French female detainees and their children to the national authorities.
Conclusion: admissible (within jurisdiction).
Merits:
(a) Interpretation of Article 3 § 2 of Protocol No. 4 – The Court took the opportunity to clarify the meaning and examine the scope of this provision, including with regard to the procedural rights of those concerned and/or any corresponding procedural obligations of the State in the context of a refusal to repatriate.
The application of Article 3 § 2 of Protocol No. 4 did not exclude situations where the national had either voluntarily left the national territory and was then denied the right to re-enter, or where the person had never even set foot in the country concerned, as in the case of children born abroad who wished to enter for the first time. Indeed, there was no support for such a limitation in its wording or the preparatory work.
Article 3 § 1 of Protocol No. 4 prohibited only the expulsion of nationals and not their extradition. The right to enter a State of which one was a national must not therefore be confused with the right to remain on its territory and it did not confer an absolute right to remain there. The right to enter the territory of which one was a national under Article 3 § 2 of Protocol No. 4 was absolute as was the freedom from expulsion of a national under its first paragraph. However, the right to enter national territory could not be used to negate the effects of an extradition order. Moreover, as Article 3 § 2 recognised this right without defining it, admittedly there might be room for implied limitations, where appropriate, in the form of exceptional measures that were merely temporary (for example, the situation envisaged in the context of the global health crisis caused by the Covid-19 pandemic).
Taken literally, the scope of Article 3 § 2 of Protocol No. 4 corresponded to a negative obligation of the State and was limited to purely formal measures prohibiting citizens from returning to national territory. However, it could not be ruled out that informal or indirect measures which de facto deprived the national of the effective enjoyment of his or her right to return might, depending on the circumstances, be incompatible with this provision.
Certain positive obligations inherent in Article 3 § 2 of Protocol No. 4 had long been imposed on States for the purpose of effectively guaranteeing entry to national territory. These corresponded to measures which stemmed traditionally from the State’s obligation to issue travel documents to nationals, to ensure that they could cross the border. As regards the implementation of the right to enter, as in other contexts, the scope of any positive obligations would inevitably vary, depending on the diverse situations in the Contracting States and the choices to be made in terms of priorities and resources. Those obligations must not be interpreted in such a way as to impose an impossible or disproportionate burden on the authorities. Where the State was required to take positive measures, the choice of means was in principle a matter that fell within its margin of appreciation.
(b) Whether there was a right to repatriation (notably for those unable to reach State border as a result of material situation) – The Convention did not guarantee a right to diplomatic protection by a Contracting State for the benefit of any person within its jurisdiction. The States themselves remained the protagonists of consular assistance as governed by the relevant Vienna Convention. Pursuant to this, individuals such as the applicants’ family members, who were being held in camps under the control of a non-State armed group and whose State of nationality had no consular presence in Syria, were not in principle entitled to claim a right to consular assistance. The fact that the SDF had called upon the States concerned to repatriate their nationals and had shown cooperation in connection with a number of repatriations, which have been carried out in particular by France, albeit relevant, did not provide a basis for a right to repatriation to be conferred upon the applicants’ family members. Nor could such a basis be found in current international law on diplomatic protection. Lastly, there was no consensus at European level in support of a general right to repatriation for the purposes of entering national territory within the meaning of Article 3 § 2 of Protocol No. 4. In sum, there was no obligation under international law for States to repatriate their nationals. Consequently, French citizens being held in the camps in north-eastern Syria could not claim a general right to repatriation on the basis of the right to enter national territory.
(c) Other obligations stemming from Article 3 § 2 of Protocol No. 4 in the context of the present case – As could be seen from the preparatory work on Protocol No. 4, the object of the right to enter the territory of a State of which one was a national was to prohibit the exile of nationals. Seen from this perspective, Article 3 § 2 of Protocol No. 4 might impose a positive obligation on the State where, in view of the specificities of a given case, a refusal by that State to take any action would leave the national concerned in a situation comparable, de facto, to that of exile. However, any such requirement under that provision must be interpreted narrowly and would be binding on States only in exceptional circumstances, for example where extraterritorial factors directly threatened the life and physical well-being of a child in a situation of extreme vulnerability. In addition, when examining whether a State had failed to fulfil its positive obligation to guarantee the effective exercise of the right to enter its territory, under Article 3 § 2 of Protocol No. 4, where such exceptional circumstances existed, the requisite review would be confined to ensuring effective protection against arbitrariness in the State’s discharge of its positive obligation under that provision. The inability for anyone to exercise his or her right to enter national territory must be assessed also in the light of the State’s return policy and its consequences. The Court therefore had to ascertain whether the situation of the applicants’ family members was such that there were exceptional circumstances in the present case (i) and, if so, proceed to address the question whether the decision-making process had been surrounded by appropriate safeguards against arbitrariness (ii).
(i) Whether there were exceptional circumstances –
The Court replied in the affirmative, having regard to the extraterritorial factors which had contributed to the existence of a risk to the life and physical well-being of the applicants’ family members, in particular their grandchildren, as well as to the following points:
– The situation in the impugned camps under the control of a non-State armed group was distinguishable from classic cases of diplomatic or consular protection and criminal-law cooperation mechanisms; it verged on a legal vacuum. The only protection afforded to the applicants’ family members was under common Article 3 of the four Geneva Conventions and under customary international humanitarian law.
– The general conditions in the camps were incompatible with applicable standards under international humanitarian law. Pursuant to common Article 1 of the four Geneva Conventions, all States parties to the instruments in question – including France – were obliged to ensure that the Kurdish local authorities who were directly responsible for the living conditions in the camps, complied with their obligations under common Article 3, by doing everything “reasonably within their power” to put an end to violations of international humanitarian law.
– On the one hand, to date no tribunal or other international investigative body had been established to deal with the female detainees in the camps and the creation of an ad hoc international criminal tribunal had been left in abeyance. There was also no prospect of these women being tried in north-eastern Syria. On the other hand, the criminal proceedings initiated against L. and M. in France were in part related to that State’s international obligations and duty to investigate and, where appropriate, prosecute individuals involved in terrorism abroad.
– The Kurdish authorities had repeatedly called on States to repatriate their nationals, citing their inability to ensure proper living conditions, organisation of detention and trial, and the security risks. They had also demonstrated, in practice, their cooperation in this regard, including with France.
– A number of international and regional organisations had called upon European States to repatriate their nationals being held in the camps and the United Nations Committee on the Rights of the Child had, for its part, stated that France must assume responsibility for the protection of the French children there and that its refusal to repatriate them entailed a breach of the right to life and the prohibition of inhuman or degrading treatment. Lastly, France had officially stated that French minors in Iraq or Syria were entitled to its protection and could be repatriated.
(ii) Safeguards against arbitrariness –
The Court was acutely conscious of the very real difficulties faced by States in the protection of their populations against terrorist violence and the serious concerns triggered by attacks in recent years. Notwithstanding, the examination of an individual request for repatriation, in exceptional circumstances such as those set out above, fell in principle within the category of operational aspects of the authorities’ actions that had a direct bearing on respect for the protected rights in contrast to political choices made in the course of fighting terrorism that remained outside of the Court’s supervision).
The applicants’ family members had been in a situation of a humanitarian emergency, which had required an individual examination of their requests. It had been incumbent upon the French authorities to surround the decision-making process, concerning those requests, by appropriate safeguards against arbitrariness. The concepts of lawfulness and the rule of law required that measures affecting fundamental rights had to be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information where national security was at stake.
In the present case, it had to be possible for the rejection of a request for repatriation, in the context at issue, to give rise to an appropriate individual examination, by an independent body, separate from the executive authorities of the State, but not necessarily by a judicial authority. This examination had to ensure an assessment of the factual and other evidence which had led those authorities to decide that it was not appropriate to grant the request. The independent body in question must therefore be able to review the lawfulness of the decision denying the request, whether the competent authority refused to grant it or had been unsuccessful in any steps it had taken to act upon it. Such review should also enable the applicant to be made aware, even summarily, of the grounds for the decision and thus to verify that those grounds had a sufficient and reasonable factual basis. Where, as in the present case, the request for repatriation was made on behalf of minors, the review should ensure in particular that the competent authorities had taken due account, while having regard for the principle of equality applying to the exercise of the right to enter national territory, of the children’s best interests, together with their particular vulnerability and specific needs. In sum, there must be a review mechanism through which it could be ascertained that there was no arbitrariness in any of the grounds that might legitimately be relied upon by the executive authorities, whether derived from compelling public interest considerations or from any legal, diplomatic or material difficulties.
In the Court’s view, the safeguards afforded to the applicants had not been appropriate.
The applicants had not received any explanation for the choice underlying the decision taken by the executive in respect of their requests, except for the implicit suggestion that it stemmed from the implementation of the policy pursued by France, albeit that a number of minors had previously been repatriated. There was no evidence that the refusals could not have been dealt with in specific individual decisions or have been reasoned according to considerations tailored to the facts of the case, if necessary complying with a requirement of secrecy in defence matters. Nor had the applicants obtained any information which might have contributed to the transparency of the decision-making process. In view of the domestic courts’ decisions referring to the lack of jurisdiction, the applicants had had no access to a form of independent review of the tacit decisions to refuse their repatriation requests.
In the absence of any formal decision on the part of the competent authorities to refuse to grant the applicants’ requests, the jurisdictional immunity raised against them by the domestic courts, in relation to their claims relying on respect for the right guaranteed by Article 3 § 2 of Protocol No. 4 and the positive obligations imposed on the State by that provision, had deprived them of any possibility of meaningfully challenging the grounds relied upon by those authorities and of verifying that those grounds were legitimate, reasonable and not arbitrary. The possibility of such a review would not necessarily mean that the court in question would then have jurisdiction to order, if appropriate, the requested repatriation.
Conclusion: violation (fourteen votes to three)
Article 41: The finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.
Article 46: The Government had to re-examine the repatriation requests, in a prompt manner, while ensuring that appropriate safeguards were afforded against any arbitrariness.
