This article asks if and how international law can be used to motivate and enhance efforts to protect ISIS children as victims of their parents` atrocities. It discusses how to mobilize international legal standards for the protection of children affected by conflict and views the protection of children associated with armed non-State actors as an obligation under international law. This shows that, while there is a considerable amount of international law on this issue, it has never been operationalized to address such a problem, and that existing models need to be rethought to address the unique situation of foreign child combatants from Daesh. The lack of a coordinated international effort to find a solution has led to a small number of legal challenges at the national level13 and internationally,14 asserting that States parties` extraterritorial obligations under various international human rights treaties require the return of children from camps. [15] They have done little to force governments to act. At the national level, cases have been dismissed for a variety of reasons, ranging from highly technical findings to lack of enforcement jurisdiction to the refusal of courts to rule on what they consider to be political issues.16 These cases have also failed to clarify States` obligations under international law. Indeed, the recent communication of the Committee on the Rights of the Child has created confusion as to the nature and extent of extraterritorial obligations towards foreign children in combatants, as it does not clearly articulate the basis on which States with a nationality make positive commitments to protect the rights of underage nationals in camps. [17] There is a plethora of international laws and policies, In international human rights law, international humanitarian law, and international refugee law, which are dedicated to protecting children and promoting their rights, much of this has focused particularly on how children should be treated during and after conflict. [18] But to date, none of this seems to have proven useful or effective in developing a solution. Cultural or artistic repatriation is the return of cultural property or works of art to their country of origin (usually refers to ancient art) or (in the case of stolen material) to their former owners (or heirs). UNHCR`s mandate on repatriation can be summarized as follows: these models offer few examples. Return programmes, often administered by the United Nations, require the consent of both the sending and host States. The SDF, a non-state actor, is not a sending „state“, although it has expressed its willingness to assist in the repatriation of women and children to their countries of nationality and, in a number of cases, has even facilitated their return.
[127] In addition, many potential host states are an obstacle to repatriation, as they are unwilling to: certainly in large numbers of women and children associated with ISIS. Prerequisites such as DNA testing128 are likely to hinder a smooth and timely return and also raise questions about what happens to children whose nationality cannot be easily established or who are entitled to nationality in different States. Thus, the traditional relationship between nationality and the right of return becomes problematic in this context. Instead of acting as an intermediary for return, States can use nationality and its use of national legislation to exclude those who are considered a threat to national security and public safety. [129] Notwithstanding the UN Secretary-General`s calls on Member States to admit their nationals and their children born to their nationals, to grant citizenship to such children, and to take measures to prevent them from becoming stateless; Provided, inter alia, that the appropriate documents are submitted,130 a number of States have instead devoted their energies to using legal mechanisms to deprive a number of persons of their citizenship131 and the rights associated with it. The rules of international return, which depend concretely on national considerations of nationality and sovereignty, are therefore of limited use in finding a solution to the issues discussed here. If the return necessarily brings a person to his territory of origin or nationality, the return may include the return of the person to the place of origin. This may be a third country, including a country of transit, which is a country through which the person has travelled to the country of destination.
Return may also take place within a country`s territorial borders, as in the case of the return of internally displaced persons and demobilized combatants. The distinction between repatriation and voluntary return is not always clear. [8] Serious doubts have been expressed about the soundness and coherence of the legal reasoning in these cases and whether they deviate from accepted criteria of extraterritoriality.72 Neither the territorial nor the personal models of jurisdiction used to examine extraterritorial jurisdiction are met here, since neither the camps nor the children are under French control. Both the Committee and the Special Rapporteurs appear to rely on a functional criterion of extraterritoriality, in which States have protection obligations when they are in a position to do so.73 This is considered alongside a number of contextual factors such as the nationality of the children and the willingness of the Kurdish authorities to cooperate in repatriation. Nationality is therefore a determining factor that triggers the State`s obligations.74 However, as Milanovic notes, there is a risk of centralisation of nationality in return decisions, arbitrariness and uncertainty, notably due to the lack of a common approach and the specificities of different legal systems in the regulation of nationality.75 The consideration of return as an extraterritorial obligation therefore appears strictly legally fragile. But even if legal conclusions based on state obligations are untenable, the underlying principle that children must be protected, cared for and, therefore, not subjected to conditions in Syrian camps is a principle to which all states committed themselves by ratifying the CRC. The repatriation of children from Syrian camps would demonstrate commitment to and adherence to these principles. These binding international legal instruments are supported by non-binding legal sources aimed at facilitating the application of the standards of the Convention on the Rights of the Child in practice. UNHCR should monitor the voluntariness of return with regard to: Since return can be voluntary or forced, the term is also used as a euphemism for removal.