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Protection of foreign terrorist fighters’ children:  a legal obligation to safeguard  international security

Foreign fighters (FFs) phenomenon is not something new in history; over the past 250 years they have participated in nearly 100 civil wars. However, it was not until the Syrian conflict that policymakers paid serious attention to such phenomenon. Daesh attracted the biggest mobilizations of Islamist foreign terrorist fighters (FTFs) to date. The most reliable sources state that 41,490 citizens from 120 countries travelled to Syria and Iraq to join ISIL, a quarter of which were women and minors. Under international law States should prosecute nationals and other individuals traveling, participating, funding or with any sort of link to foreign terrorist fighters; and they are asked to cooperate in preventing the radicalization, recruitment, border crossing and in developing and implementing prosecution, rehabilitation, and reintegration strategies for returning foreign terrorist fighters. This analysis will briefly try to highlight, in relation to rehabilitation and reintegration strategies, the dramatic reality of children affected by the foreign fighter phenomenon to identify states’ challenges in safeguarding their rights. By giving a picture of the magnitude of such a depoliticised topic, the paper will highlight the legal state of the art of children affected by FTFs, to investigate the degree to which their rights protection is a priority of the international security agenda.

State of the art: children of the foreign ISIS fighter

Foreign fighters’ children are those sons and daughters of foreigners who joined fighting, children of supportive locals, abandoned children found in ISIL-controlled orphanages and children coercively taken from parents to join the “family jihad”.[1] [1] After Daesh was declared defeated, the Syrian Democratic Forces (SDF) and the Iraqi Government have approached different strategies to deal with foreign nationals accused of having ties with ISIL. Nevertheless, SDF does not hold the necessary capacities to prosecute FTFs and to manage camps where children and families in general have been kept, with the risk of creating new hubs for radicalization. On the other hand, the Iraqi government relies on its sovereign right to prosecute adult FTFs, but has asked states of origin to repatriate children, being many of them detained on national security-related charges for their alleged association with ISIS.[2] [2]

Around 12% of the than 40,000 foreign ISIL affiliates are minors; of this estimate there are thousands of children languishing in internally displaced persons’ camps (some with family support, other being completely alone), orphanages in Syria and detention centres (where conditions do not meet minimum standards, especially in relation to children special rights and needs[3] [3]) in Iraq. Such environments and conditions seriously challenge their health, safety, and physical and mind well-being. According to UNICEF, there may be in Syria around 29,000 foreign children (most of them under the age of 12), and around 1,000 in Iraq. Some of these children were born in the conflict areas under the control of ISIL’s Caliphate, other were coerced into affiliating, some were forced for their own survival; nevertheless, there are cases of children who left to join the Daesh by their will.

What has led many states to eclipse from their role in protecting, or handing back, the rights of these children are mainly: the lack of information, and imagination also, from the combat field and the affluence of information passed on through ISIL propaganda on internet characterised by children committing bloody actions, to frighten the West. Since fighters encouraged children training to become the next generation of jihadists fighters, there is compelling evidence that in the ranks of ISIS children as young as six have been exposed to jihadi indoctrination and that they started to receive military training at the age of nine[4] [4]. Meaning, in case where appropriate deradicalization and reintegration/resocialisation processes fail, they may become ‘’ticking time bomb’’[5] [5].

What is certain, however, is that these children are still being seriously affected by human rights violations. Some born in ISIS territories with (and without) documents are not recognized internationally; orphans of the conflict face difficulties to get their own countries, where nationality is paternally granted; lack of identification leads children to be unable to access public health services, civil registration, or basic services like education. Some children are being discriminated twice, with certain states lowering the age of criminal responsibility to prosecute minors as adults under anti-terrorism laws. Such complex situations risk to create a ‘’generation of stateless’’ in a legal void is furthering increasing children’s rights violations and future risk of radicalisation. Precisely from these two challenges, the paper seeks to highlight the moral duty of protecting these rights, both from a legal and a security perspective.

All children (should) have one thing in common – their rights

Children are impacted by terrorism in different ways: often victims of violence and abuses by armed groups, often among casualties of conflicts; some have been killed or injured in military and non-military counter-terrorism operations, other have been recruited by terrorist groups to participate in hostilities[6] [6] (e.g. carriers of improvised explosive weapons[7] [7]). Children affected by terrorism lack access to basic services and are often left in disrupted family’s conditions and displacement. Other children have been kidnapped and sold, often as sex slaves, across borders. The lowest common denominator is that children result as the most vulnerable part in relation to armed conflicts and terrorism phenomena, with limited support structures, poor security, and low humanitarian conditions. The United Nations repeatedly reaffirmed the duty to protect children rights protection through specialized support (e.g. post-trauma counselling) in order to respect their rights and dignity[8] [8]. Both the Security Council and the General Assembly have repeatedly reaffirmed through counter-terrorism resolutions[9] [9] the duty of compliance with international law, particularly human rights, humanitarian, and refugee law, embedding counter-terrorism architecture into a broader international legal framework.

A child[10] [10] is entitled to special protection under the Convention on the Rights of the Child[11] [11] – its provisions have become part of customary international law, binding even for states that have never ratified it. The Optional Protocol to the Convention on the involvement of children in armed conflict prohibits armed groups from recruiting anybody under 18, being one of the first violations affected by the FTFs phenomenon.[12] [12] Under the same Convention, States parties must ensure, without discrimination, the rights of all children within their jurisdiction[13] [13], within the State’s power or effective control, even if not in the State’s territory;[14] [14] whether the child is a citizen of that State and irrespective of their nationality, immigration status or statelessness, including if the child is known or suspected of association with designated terrorist groups. Under the International Covenant on Civil and Political Rights, states must ensure the right to life of those who are both located outside of its territory through states protective measures[15] [15] providing the right to child to enter one’s own country.[16] [16] Optional Protocol to the Convention of the Rights of the Child on children in armed conflict requires states to assist children recruited by designated terrorist groups by providing  support, physical and psychological recovery, social reintegration and safeguarding their right to develop in an environment free from violence.[17] [17]

In case of armed conflicts, children affected by the foreign fighter phenomenon should be protected with special respect and protection under international humanitarian law[18] [18]  (e.g. respect and right to correspond to families life as much as possible[19] [19]), with provisions also applying to children who may find themselves under the jurisdiction within the power of a party to the conflict, including when they have been apprehended or detained.[20] [20] Even though the international refugee law permits[21] [21] exceptions to the principle of non-refoulement for national security reasons, given the potentially serious consequences of denying refugee status such exceptions should be interpreted in a restrictive manner.[22] [22] This is particularly true for applications of this provision to children, requiring the best interests of the child, and keeping in mind the mental capacity of children and their ability to understand and consent to act; these details need to be considered.[23] [23]

Children are entitled to special protection as they are often dependent on others, not afforded an opportunity to express their views and are unable to participate in decisions about themselves or make a strong case advocating for their own interests.[24] [24] As a result, regardless of their circumstances, States must treat all children affected by the foreign fighter phenomenon primarily as victims entitled to special protection. Measures to protect the child’s rights are therefore legally oriented towards reintegration and rehabilitation, in line with international juvenile standards in case of commission of crimes. Measures should be guided by the principles of of non-discriminatory treatment of children, best interests of the child as a primary consideration, child’s inherent right to life, survival and development, and respect for the views of the child.[25] [25] However, the development and implementation often collide with such principles, challenging state obligations to protect and support rehabilitation and reintegration of children affected by FTFs phenomenon.[26] [26]

 States’ obligations vis-a-vis security considerations

International law provides child’s best interests to be a primary consideration, taking precedence even in situations in which there may be conflicts between other interests; case-by-case Resolutions should balance the different interests by finding a suitable compromise, serving primarily the child interest.[27] [27] The Security Council Counter-Terrorism Committee has recognized the best interests of the child as the primary consideration to provide special safeguards and legal protections appropriate in cases where this is required. This approach must take place even when the child is considered a potential national security risk, in line with rehabilitation and reintegration strategies to assist the child in achieving his or her fullest potential and prepare the child for a responsible life in society.[28] [28] In addition, access to health care, services, (long-term) psychosocial support and education programs are an important pillar for the well-being of children and to sustainable peace and security.[29] [29] But to which degree have these measures been taken?

There are different levels of commitment and reluctance to repatriation, rehabilitation, and prosecution, because of different political wills and the fear of political suicide. Rehabilitation (such as deradicalization and disengagement programmes) and reintegration measures, in combination with other administrative or criminal measures as part of a comprehensive strategy, are differently deployed in countries affected by the FTFs phenomenon. For example, Central Asian countries have been focusing on children as the primary exceptions; states like Tunisia, France, Germany, the Netherlands, Belgium, and Norway, even though opposed to FTFs return, have been repatriating several children on ad hoc basis. For example, 975 children have been repatriated from Syria since 2017. But is this enough, considering the numbers discussed in the first session? According to Save the Children, there are around 27,500 children living through the hardest conditions, 90% of which is under twelve years old, waiting to be repatriated; but repatriation of foreign children living in camps has declined to an unacceptable level in 2020[30] [30] considering the COVID-19 pandemic challenges. In the similar way States have decided to converge different interests of international agendas, the action is necessary for the phenomenon of FTFs children repatriation.

Response strategies for child returns should be focusing on early intervention and normalisation measures as soon as possible. Strategies should be outlined through a holistic and multi-agency approach to supply child needs by: on one hand, community-based approach; on the other hand, tailor-made approach based on individual risk and need assessments addressing the child’s physical and mental well-being and the degree of trauma, indoctrination, and attitude towards violence. This should be in line with additional interventions focusing on rehabilitation and resocialisation in a safe and stable environment (e.g. going back to school) that address the child’s well-being as well as the risk of the child becoming violent and/or radicalised in the future. States should however assume that child returnees have had a certain degree of engagement with extremist ideology, and therefore tailored deradicalization programmes should be developed to understand the different nature of the trauma and the impacts it had on the child. To develop such long-term support plans, the need of different authorities and care institutions having responsibility and providing different interventions, with one case manager ensuring continuity of support is required; moreover, it is dutiful for states most affected by the phenomenon to start building this capacity by developing knowledge and expertise on child returnees, on the traumas exposed in Syria and Iraq, and most important, clear and comprehensive legal and organisational structures to deal with child protection services.

The importance of providing FTFs children with an environment which fosters the health, self-respect, and dignity of the child[31] [31] requires a paradigm shift from treating children as “objects in need of assistance” to treating them as “rights holders entitled to non-negotiable rights to protection”[32] [32], as international law binds States to. The Global Counter-Terrorism Strategy requires Member States to implement all General Assembly and Security Council Resolutions on the protection of human rights and fundamental freedoms while countering terrorism. The surprising thing, which is often not perceptible due to public opinion, lack of political will and the sensitivity of the phenomenon, is that states should respect these international legal obligations, not only for the inalienable rights of children, but also for their security. Support for full integration serves an important long-term security goals; preventing further marginalization, which could push children to return to terrorist groups, and endorsing deradicalization program is probably one of the only ways to sort out the root of the problem. In Daesh’s strategy, there was a desire to create a new generation of jihadists ready to fight against the infidel world; to defeat the Islamic State and its ideology, states must work on FTFs children. From a security perspective, the ‘do nothing’ strategy is states’ worst options since it would mean leaving a sensitive problem grow over time. Doing nothing can pay for short term political consensus, however leaving in the long term a generation of radicalised young people, becoming a major risk to international security; this is true for both children returnees, and the thousands waiting to be repatriated.

Such a phenomenon is little dealt within the public domain; particularly about the Western world, when the subject of Islamic terrorism comes up, it is thought that Western citizens may be the most vulnerable part to acts of violence like the one endorsed by terrorist organization. There should be a higher attention towards the real most vulnerable part being children of FTFs, often not even considered part of the citizenship, remembering that a parent’s choice cannot ruin a child’s life. The moral message is to invite national state decision-makers to rethink and to readdress national security, starting exactly from the protection of FTFs children; this should be done by offering them a brighter future through comprehensive strategies discussed in the paper. It is crucial, especially after the pandemic, that the protection of the rights of children of foreign fighters stranded in Syria and Iraq becomes a priority in the international fora; states must assist these children, instead of further violating their rights.

Francesco Pagano

 

 

 

Bibliography:

Rumyana Ark, Faith Gordon, Devyani Prabhat. Repatriating the forgotten children of ISIS fighters: A matter of urgency. Global Citizenship Observatory, 2020

Aïssata Athie. The Children of ISIS Foreign Fighters: Are Protection and National Security in Opposition? IPI Global Observatory, 2018

Francesca Capone. The children (and wives) of foreign ISIS fighters: Which obligations upon the States of nationality? Questions of International Law, 2019

Faith Coron. Coronavirus crisis, and the urgent need to revisit repatriation of foreign fighters’ children. Monash University, 2020

Anthony Dworkin. The Repatriation of Jihadist Foreign Fighters. Strategic Sectors | Security & Politics

Tanya Mehra, Matthew Wentworth, New Kid on the Block: prosecution of ISIS _ghters by the Autonomous Administration of North and East Syria, International Centre for Counter-Terrorism – The Hague, 2021

Marko Milanovic. Repatriating the Children of Foreign Terrorist Fighters and the Extraterritorial Application of Human Rights. Blog of the European Journal of International Law, 2020

Yrsa Landström, Remaining Foreign Fighters: Fear, Misconceptions and Counterproductive Responses, Springer Link, 2021

Alessandra Spadaro. Repatriation of family members of foreign fighters: Individual right or state prerogative? Cambridge University Press, 2020

 

Handbook Children affected by the foreign-fighter phenomenon: Ensuring a child rights-based approach. United Nations office of Counter-Terrorism Centre

Handbook on Children Recruited and Exploited by Terrorist and Violent Extremist Groups: The Role of the Justice System, United Nations Office on Drugs and Crime, 2017

Protect the rights of children of foreign fighters stranded in Syria and Iraq, UNICEF 2019

Responses to returnees: Foreign terrorist fighters and their families. Radicalisation Awareness Networ Manual, 2017

Save the Children reports: https://www.savethechildren.net/news/repatriation-foreign-children-syria-slowed-covid-19-new-footage-emerges-life-camps [33]

ISIL Now A Covert Global Network’ Despite Significant Losses, United Nations Counter-Terrorism Head Tells Security Council. Security Council 8330th meeting, 2018 https://www.un.org/press/en/2018/sc13463.doc.htm [34]

[1] [35] Capone, 2017

[2] [36] ‘Report of the Special Representative of the Secretary-General for Children and Armed Conflict’ UN Doc A/HRC/40/49  para 18. 2018

[3] [37] A/HRC/40/70, para. 10.

[4] [38] ‘Report of the Secretary-General, Children and Armed Conflict in the Syrian Arab Republic’ UN Doc S/2018/969 (30 October 2018) para 17. A Almohammad, ‘ISIS Child Soldiers in Syria: The Structural and Predatory Recruitment, Enlistment, Pre-Training Indoctrination, Training, and Deployment’ ICCT (19 February 2018) 19-22

[5] [39] EU Counter Terrorism Coordinator

[6] [40] A/HRC/30/67, para. 44; A/HRC/36/55, para. 51; A/HRC/40/70, para. 62; A/HRC/31/47, para. 59; A/72/865, para. 185.

[7] [41] A/72/865, para. 226.

[8] [42] Security Council resolution 2396 (2017), preamble.

[9] [43] Ibid.

[10] [44] ‘’Every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier’’

[11] [45]  International human rights treaty which sets out the civil, political, economic, social, health and cultural rights of children

[12] [46] Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (2000), art. 4(1).

[13] [47] Convention on the Rights of the Child (1989), art. 2(1); International Covenant on Civil and Political Rights (1966), art. 2(1).

[14] [48] Human Rights Committee, general comment No. 31 (2004), para 10; Human Rights Committee, general comment No. 36 (2018) on article 6

[15] [49] Ibid., general comment No. 36 (2018), para. 60.

[16] [50] International Covenant on Civil and Political Rights (1966), art. 12 (4).

[17] [51] Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (2000), art. 6(3).

[18] [52] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (1977) (Additional Protocol I to the Geneva Conventions), arts. 77, 78; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (1977)(Additional Protocol II to the Geneva Conventions), art. 4(3); ICRC, Customary International Humanitarian Law database, rule 135 on children

[19] [53] Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (1949)

[20] [54] Ibid., common art. 3(1)

[21] [55] Convention relating to the Status of Refugees (1951)

[22] [56] UNHCR, Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees (2003)

[23] [57] Ibid. No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (2009)

[24] [58] Committee on the Rights of the Child, general comment No. 14 (2013)

[25] [59] Convention on the Rights of the Child – art. 2, 3, 6 and 12

[26] [60] Ibid.  arts. 38, 39, 40; Security Council resolution 2396 (2017), paras. 30, 31.

[27] [61] Ibid. art. 3(1).

[28] [62] Convention on the Rights of the Child (1989), art. 29.

[29] [63] Security Council resolution 2396/2017

[30] [64] Save the Children report states that the number of children repatriated from North East Syria dropped to an estimated 200 children in 2020, from 685 in 2019.

[31] [65] Convention on the Rights of the Child (1989), art. 39

[32] [66] Committee on the Rights of the Child, general comment No. 13 (2011), para. 59.