Stranded in Squalor: State Obligations, R2P and the Fate of Child Nationals in Northeast Syrian Detention Camps

Category: Fresh Perspectives
Date: Thursday 11 February 2021

Global Centre for the Responsibility to Protect's Juliette Paauwe and Jahaan Pittalwala offer a timely discussion on state obligations to child nationals detained in north east Syria.

As the so-called Islamic State of Iraq and the Levant’s (ISIL) self-declared caliphate collapsed in Syria from December 2018 to March 2019, tens of thousands of men, women and children living in areas formerly controlled by ISIL were rounded up and thrown into detention camps in the northeast. More than 100,000 people, allegedly former ISIL affiliates, are now detained in these camps, approximately 28,000 of whom are children from more than 60 different countries.

Only a few states have sporadically repatriated a very small number of children – most of them orphans – while thousands remain stranded in intolerable and inhumane camp conditions. This indefinite detention poses serious risks to the humanitarian needs and human rights protection that the children require, and amounts to multiple failures on the part of states whose child nationals remain in northeast Syria to uphold their obligations under international law.

While many European states have consistently championed the Responsibility to Protect (R2P) and human rights more broadly, their reticence and almost complete inaction to take sufficient protection or repatriation measures – despite multiple calls from the Kurdish-led Autonomous Administration that runs the camps – seem to be a direct divergence from their proclaimed priorities to protect vulnerable populations and uphold human rights. These same states have also attested that they are under no obligation to repatriate their children. This contradiction begs the question: do states have the responsibility to protect their child nationals in detention camps in northeast Syria under the framework of R2P?

State inaction compounds the suffering of children

Conditions are deadly at the overcrowded camps, most notably at al-Hol and al-Roj camps where 80 percent of the 64,000 total detainees are women and children. Deplorable sanitary conditions, limited water and life-threatening food scarcity inflict rampant disease and illness – suffering is compounded by persistent violence and security threats as well as sexual and other forms of abuse against children. The Human Rights Council (HRC)-mandated Commission of Inquiry (CoI) on the Syrian Arab Republic has reported that hundreds of children have died in these camps from malnutrition and preventable diseases.

Most states with child nationals remaining in northeast Syria have taken little to no effort to assess the situation of those trapped or prioritize their repatriations. This inaction equates to a flouting of state legal obligations toward children, including those under the Convention on the Rights of the Child and other protections afforded to children under international humanitarian and human rights law. Approximately 12,000 detainees – 4000 women and 8000 children – in al-Hol and al-Roj camps are foreign nationals from countries other than Syria and Iraq. More than 80 percent of the children are under the age of twelve and 50 percent are under the age of five. In January 2020 the CoI reported that these children are in a “particularly precarious” situation since they often lack official papers, such as birth certificates and passports, which jeopardizes their right to a nationality, hinders family reunification processes and puts them at a higher risk of exploitation and abuse.

Many states have labeled these children as domestic “security threats”, have claimed that verifying citizenship is too complex or have entirely ignored calls to repatriate their own citizens. Over 1,000 children are from European countries, yet only a few have sporadically repatriated only a small number of children. A recent joint statement from 22 UN human rights experts calls upon all states of origin to urgently repatriate their trapped child nationals from the “violence, exploitation, abuse and deprivation” experienced in the camps.

The scope of R2P and the case of child nationals in northeast Syria

International obligations toward stranded children in northeast Syria are hotly contested. While European states refuse to assume any consistent responsibility for their respective child nationals, the Kurdish-led Autonomous Administration is also unwilling and unable to assume responsibility and has repeatedly called for the implicated states to repatriate as well as for the international community to assist with protection and humanitarian challenges. This cycle of deflecting obligations gives rise to a seminal question: can R2P reconcile the suffering endured by children trapped in the camps with the pre-existing international legal obligations of their states of origin?

The principle of R2P is built around “statehood” and “sovereignty as responsibility”, in that a state has positive responsibilities for their population’s welfare and wellbeing. Although there is general consensus that protection responsibilities extend to non-nationals on a given state’s territory, it is unclear whether this protection responsibility extends to nationals on foreign territory such as the children in camps in northeast Syria. Neither paragraph 138 or 139 of the World Summit Outcome Document, nor the first annual report on R2P by the UN Secretary-General which further clarified the norm, explain what is meant by the term “populations'' or specify its territorial scope.

The question also remains whether detained populations in northeast Syria are at risk of, or are enduring, any of the four crimes that fall under R2P: genocide, war crimes, crimes against humanity and ethnic cleansing. Not only are those trapped in the camps facing inhumane conditions, but they are themselves victims of serious human rights violations or atrocities, including sexual violence, exploitation, trafficking or forced recruitment by ISIL. It can also be argued that purposefully keeping children in the horrific conditions of the camps and refusing repatriation, despite having the means and resources to do so, is intentionally causing great suffering or serious injury and could amount to atrocity crimes.

Legal obligations and moral imperatives

Determining the applicability of R2P in this context requires extensive legal analysis of the four crimes and of precedent set by previous international practice. Nonetheless, R2P is not the only principle guiding international actors, and thus its (non)-applicability cannot preclude states of origin from the legal standards under which they are already bound.

There still exist well-defined and widely-accepted obligations under international law that states of origin are blatantly flouting in refusing to take protective action or repatriate their child nationals. States have a legal duty to protect children, including from statelessness, and must ensure that children are regarded primarily as victims and treated in a manner consistent with their rights, dignity and best interests. This protection extends to child nationals outside a state’s territorial jurisdiction, particularly where they are at risk of serious human rights violations or where their treatment will produce a sufficiently proximate repercussion on their basic rights guaranteed under international law. Given the multiple violations of basic human rights – which may amount to crimes against humanity – and compounding levels of victimization at the camps, urgent repatriation is the only response from states of origin that is in accordance with international law. Unwillingness on the part of implicated states to take immediate action is a severe dereliction of duty and moral failure, bringing irreparable harm to the principles upon which the international community is built.

Regardless of the applicability of the Responsibility to Protect in the context at hand, it is clear that the states that have been R2P’s most fervent champions, as well as staunch supporters of other human rights and protection agendas, are the very states that are unwilling to abide by legal obligations and remove all their child nationals from the life-threatening conditions in the camps. To rhetorically support the Responsibility to Protect as a protection norm, while simultaneously breaching the very international laws upon which it is built, demonstrates a stark hypocrisy and is inconsistent with the letter and spirit of the principle of R2P.

Juliette Paauwe, Senior Research Analyst, and Jahaan Pittalwala, Research Analyst, at the Global Centre for the Responsibility to Protect.

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