SPOTLIGHT Scholarship Blog - Thesis summaries and legal opinions

Legal opinion on the ECtHR HF & Others v France case

Jenny Chen, Major: Law & Politics

Human rights embody fundamental values in society and protect vulnerable groups from abuse, including children. While human rights courts are expected to follow the formalities, the protection of human rights must still be prioritized. In the 2022 HF & Others v France case, the Strasbourg Court seemed to have prioritized several formalities at the cost of the protection of children, especially those who are the most vulnerable.

Strasbourg Court: Facts and Analysis

The applicants of this case, the (grand)parents of two women who travelled to Syria to join IS together with their three children in 2014 and 2015, brought proceedings to seek the repatriation of their relatives who have been living in precarious Kurdish-run camps after the fall of the Islamic State. Women and children have been brought to such camps due to the apparent criminal behavior of the women, in which they suffer inhuman treatment. Therefore, Article 1 of the European Convention on Human Rights (ECHR), which requires the ECtHR to assess whether a state exercises extraterritorial jurisdiction, and Article 3 of the ECHR, which prohibits torture and inhuman or degrading treatment, were discussed in this case.  

The Strasbourg Court acknowledged that although extraterritorial jurisdiction may be allowed based on the French nationality of the applicants according to Article 3(2) of Protocol 4 to the ECHR, it is insufficient on its own to establish a jurisdictional link. Article 3(2) states that “[n]o one shall be deprived of the right to enter the territory of the state of which he is a national”. Thus, it still imposes positive obligations on states, inducing states to bear responsibilities toward their citizens even when they are located abroad. Therefore, regarding the ill-treatment of the women and their children, the Strasbourg Court decided that French authorities must implement appropriate safeguards against arbitrariness when examining requests for repartition, which function as protection against unjust cases of deprivation of liberty. However, these safeguards merely impose a procedural obligation on states regarding requests for repatriation, which diminishes the effectiveness and practicality of human rights, as the Court found that France does not have the obligation to repatriate the women and the children.

Strasbourg Court: Failure to Protect Human Rights

Contrary to the decision of the ECtHR, in similar cases brought before the UN Committee on the Rights of the Child, the Committee found that France violated Articles 3, 6(1), and 37(a) of the Convention on the Rights of the Child (UNCRC) on the best interest of the child, right to life, and prohibition of torture respectively. Consequently, it found that France must repatriate French children held in Syrian camps because it is the only way to protect them. Given this information, the disregard of the Strasbourg Court for the rights of the children showcases that it failed to effectively consider and protect their human rights, as well as those of the women, who find themselves in seriously dire and even life-threatening situations.

The Court’s decision is problematic and it has concerning consequences for future cases. First, the no-state obligation regarding repatriation seems to run against the clear obligations of states to exhaust all possible measures to protect their nationals.

Second, similar cases have been viewed as a matter of state security rather than of human rights before national courts. For instance, in the 2021 Begum v Home Secretary case, the Supreme Court of the United Kingdom decided to revoke the UK nationality of the applicant, Shamima Begum, who travelled to Syria in 2015 to join IS. Begum was only 15 years old when she left the UK, but the Court had not considered whether she was a child victim of human trafficking and sexual exploitation. Instead, they labelled her as a ‘risk’ for national security as a result of political influence and thereby avoided responsibility to ensure the protection of her human rights.

Third, the Strasbourg Court failed to address how to effectively help and protect the women and children in question. Although Article 3(2) of Protocol 4 to the ECHR gives them rights to enter France, it does not address how exactly they would be able to do so since they do not have the necessary papers or financial means to travel. It is unfortunate that the Court failed to take this case as an opportunity to set a valuable precedent concerning this matter for future cases.

Dutch Supreme Court: Repatriation of 56 IS Children

Similar to the HF & Others v France case, a case concerning the repatriation of 56 children and their mothers in North Syrian IS camps has been brought before Dutch courts in 2019. The Supreme Court of the Netherlands, in the same way as the Strasbourg Court, ruled that it cannot exercise jurisdiction over the applicants because they are outside the territory of the Netherlands. Nevertheless, the Court recognised the graveness of the situation of the children, who are victims of the acts of their parents and suffer severe physical and mental abuse in the camps. Therefore, it decided that the state must take reasonable measures to offer the children protection, despite the fact that they are located in another state, on the basis of Article 2 of the UN Convention on the Rights of the Child (UNCRC). The decision implies that it is not up to the courts to determine the fate of the children and their mothers, but to the politicians and government policy. Interestingly, this stance deviates from previous court decisions, for instance in the Srebrenica and the Uganda cases, in which it was discussed that the lawfulness of a state’s action should also take into account the failure of a state to take measures that could reasonably be expected of it to prevent human rights violations. The Supreme Court’s decision to make this case a political matter instead of a legal one is alarming. Judges are supposed to be independent and impartial, which is not the case for a state’s government because it is dictated by political interests, which may have devastating consequences, such as in the Begum case.

Concluding Remarks

In both the Strasbourg and the Dutch cases, more attention should have been directed to the best interests of the child, as set out in the UNCRC, and the need to fully protect human rights. Even though both courts have taken the Child Convention into account, they have not satisfactorily fulfilled their obligations. For instance, children should not bear the responsibility for any criminal behavior of their parents according to Article 2 of the UNCRC, regardless of the seriousness of the behavior. Accordingly, IS children should be legally allowed to be repatriated to the country in which they are nationals. Since the children concerned are incredibly young, with all of them under 12 years old in the Dutch case, they are particularly susceptible to social influences, meaning that it would be easily possible to change their brainwashed mindset. Therefore, the argument that these children form a danger to society is inadequate.

The UNCRC also highlights the importance of family unity in Article 9, which states that children shall not be separated from their parents against their will, except for when the separation is in the best interest of the child. Staying with their mothers could potentially be harmful to the IS children as the mothers willingly travelled to Syria to join IS, which heavily suggests that their ideals reflect the ideologies of the organization. In the interest of long-term security, however, it is important to not only repatriate the children, but also the women so they can be brought before the court in France or the Netherlands to hold them accountable for their actions. Notwithstanding their apparent criminal records, it should be noted that the women were subject to human rights violations, and many of them were forced to join IS. In addition, they and their children live in dire and inhumane circumstances.

Therefore, even though it is understandable from a political perspective that there are worries about the consequences of the repatriation of IS children and women, the importance of the protection of the human rights of vulnerable groups should be regarded as a priority. The commitment to human rights should be universal and politics should not be used to decide which particular people are ‘worth’ to be protected and which are not.