On 14 September 2022, the European Court of Human Rights (ECtHR) condemned the French government in the case of H.F. and Others v. France over its refusal to repatriate two French women who travelled to Syria with their partners to join the Islamic State (IS). The women are currently with their children in Kurdish-run detention camps in north-eastern Syria under poor conditions. (Chrisafis, 2022).
The Submissions Of the Parties
The cases were brought before the ECtHR more than two years ago by the parents of the women. They argued that their daughters’ prolonged detention exposed them and their children to inhumane and degrading treatment, pointing out the widespread problems in the camps, such as malnutrition and disease. The parents, therefore, wanted their daughters to be returned to France.
The applicants relied, amongst others, on Article 3 § 2 of Protocol No. 4 to the European Convention on Human Rights, which reads that “no one shall be deprived of the right to enter the territory of the State of which he is a national”. Inversely, France argued that it should not be obliged to repatriate, as it did not exercise its jurisdiction over its citizens in north-eastern Syria, which was supported by seven other European countries. (Méheut, 2022).
The Court’s Ruling
The Court sided with the applicants, holding that there were “special features” which enabled France’s jurisdiction over the family members, including that their lives were at risk, several requests for repatriation had been sent to the French authorities, and that the Kurdish authorities had indicated their willingness to hand over the women and their children to the French authorities. Having established France’s jurisdiction, the Court proceeded to say that the country had failed to examine the families’ requests for repatriation properly. The Court noted that despite the lack of general right to repatriation, States are still obliged to provide appropriate safeguards against arbitrary decision-making. In the present case, it found that France had not provided those safeguards, as it had not issued a formal decision concerning the requests for repatriation and had not provided a judicial review of those tacit refusals either. Therefore, the Court decided that France has to promptly re-examine the requests for repatriation and afford safeguards against arbitrariness in the decision-making process, i.e., an independent body (separate from the State’s executive authorities) must be able to review a possible rejection of the requests (Méheut, 2022).
Importance Of the Decision
The ECtHR’s decision constitutes the first time that the Court has ruled on the repatriation of European families who joined IS and have been held in Kurdish-run Syrian camps. Hundreds of persons remain in the camps, which presents a dilemma for European countries, having to decide between bringing back individuals associated with terrorism and their commitments to human rights. France, which has the most citizens that have joined IS in Syria among other European countries and has suffered numerous deadly terrorist attacks since 2015, had for years resisted calls by human rights groups to repatriate women who left the country to join IS. It had argued that citizens who joined jihadist networks would pose security risks if returned home and that those persons are “fighters” who should be tried where they are accused of committing crimes (while, in reality, this is not a feasible legal solution). Decisions about the return to France of children were made on a case-by-case basis(Koller, 2022). Currently, about 65 French women and 165 French children remain in the detention camps (Méheut, 2022).
Sources
Chrisafis, A. (2022, September 14). ‘France must rethink case of IS-linked women refused re-entry, rules ECHR’. The Guardian. Retrieved September 15, 2022, from https://www.theguardian.com/law/2022/sep/14/france-echr-women-syria-islamic-state-refused-re-entry
H.F. and Others v France App nos 24384/19 and 44234/20 (ECtHR, 14 September 2022)
Koller, S. (2022, July 8). How France finally made the tough decision to bring home its ISIS families. The National News. Retrieved September 16, 2022, from https://www.thenationalnews.com/weekend/2022/07/08/repatriating-wives-and-children-of-isis-terrorists-is-a-first-step-in-a-long-process/
L’Opinion. (2022, September 14). Rapatriement des familles de jihadistes : la France condamnée par la CEDH. L’Opinion. Retrieved September 16, 2022, from https://www.lopinion.fr/international/rapatriement-des-familles-de-jihadistes-la-france-condamnee-par-la-cedh#:~:text=La Cour européenne des droits,de jihadistes%2C détenues en Syrie&text=Vomer%2FSPUTNIK%2FSIPA-,La Cour européenne des droits de,Homme (CEDH) a tranché
Méheut, C. (2022, September 14). Top European Court Condemns France Over Refusal to Bring Home ISIS Families. The New York Times. Retrieved 15 September, 2022, from https://www.nytimes.com/2022/09/14/world/europe/france-isis-families.html#:~:text=the%20main%20story-,Top%20European%20Court%20Condemns%20France%20Over%20Refusal%20to%20Bring%20Home,rejecting%20their%20requests%20for%20repatriation
Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms securing certain rights and freedoms other than those already included in the Convention and in the First Protocol thereto (entered into force 1 November 1998) European Treaty Series No. 46 art 3 § 2
