CHILDREN OF FOREIGN FIGHTERS: AUSTRALIA’S RESPONSIBILITY TO REPATRIATE

By Andrea Olivares Jones & Karin Frodé

The 30th anniversary of the UN Convention on the Rights of the Child (CRC) presents an important moment for States parties to strengthen their efforts to protect the rights of all children, including those associated with the Islamic State. 

Since 2012, an estimated 230 Australians have travelled abroad to join Islamist terrorist groups in the Middle East. Studies have revealed that children associated with these groups were subjected to extreme trauma throughout the protracted conflict, which in many instances claimed their lives. At present, over 60 Australian women and children remain in squalid, overcrowded and dangerous camps in Syria’s northeast and Iraq. For the surviving family members, the fall of the Islamic State has brought on a new challenge – how to get home? 

GROWING CALLS FOR REPATRIATION

This year, the UN published a Handbook and a Roadmap for policymakers on how to respond to issues emerging from the so-called ‘foreign fighter phenomenon’ – including the now stranded families of foreign fighters. UN entities, human rights organisations and an increasing number of domestic courts in Europe are calling on countries of origin to take immediate steps to repatriate children affected by the foreign fighter phenomenon (and to the extent possible, their family members) as a necessary step for rehabilitation, reintegration and justice. 

Despite the dire conditions in the camps and the unstable security situation in the region, most countries of origin remain reluctant to repatriate their nationals. Australia is one of several countries of origin which has responded by revoking citizenship of adults (including parents) associated with the Islamic State. Turkey, on the other hand, has started to deport non-Turkish captives with alleged ties to the Islamic State, pledging to ignore any prior citizenship revocation by the receiving country. Deutsche Welle reports that children and women are among those scheduled for deportation back to Germany. The United States has offered to assist Australia and other allies to ‘facilitate’ the repatriation of foreign fighters and their families through a number of unspecified measures, which may involve ‘military assets’. 

INTERNATIONAL LAW CONSIDERATIONS

A child rights-based approach to children associated with foreign fighters requires repatriation by Australia and other countries of origin for a number of reasons, including: 

1. Children should always be treated ‘primarily as victims’  

Children associated with foreign fighters should be recognised and treated primarily as victims, regardless of any alleged involvement by them or their parents in hostilities. In its 2019 Concluding Observations and follow-up on Australia’s implementation of the Optional Protocol to the CRC on the involvement of children in armed conflict, the CRC Committee urged Australia to provide child victims recruited into armed groups or used in hostilities abroad with ‘appropriate assistance’ for recovery and reintegration into Australian society. Additionally, treating children differently by not repatriating them due to their family’s alleged affiliation with a terrorist organisation runs contrary to the right to non-discrimination (CRC Article 2).   

2. A child’s best interests must always be a primary consideration

Article 3 of the CRC requires that States Parties must, in any action or decision involving a child, ensure that the best interests of the child are a primary consideration. While other considerations may be important, States must ensure that they not de-emphasise the status of a child’s best interests as a primary consideration. In practice, however, the best interests of the child have taken a backseat as countries of origin justify non- repatriation on the basis of public safety. The reality, however, is that Australia’s obligations under CRC Article 3 and our national interests could be harmonised, instead of pitted against each other.  For example, while some children may pose a security threat if returned to Australia, they are likely to pose a far greater security threat if they remain in the camps, without the possibility for rehabilitation and reintegration.  Effective counterterrorism efforts require respect for human rights, with the best interests of the child as a primary consideration. 

UN experts have underlined that children must have access to consular assistance and protection, specifically in best interest determinations. Australia has emphasised its ‘limited if not non-existent’ consular assistance available in the region. Rather than relying on the lack of consular presence, Australia should take steps to facilitate the enjoyment of this right. 

3. Children have the right to a nationality, to enter/return to their own country and related rights

States must take measures to realise every child’s right to acquire a nationality and to have their birth registered under Article 7 of the CRC (see also Article 24 of the International Covenant on Civil and Political Rights (ICCPR)). Further, if children are not repatriated, they remain exposed to statelessness as most children in the camps lack formal documentation of their birth

States must not deprive a person of nationality if it would render the person stateless (save for a few narrow exceptions) pursuant to Article 8(1) of the 1961 Statelessness Convention ratified by Australia. Further, no one should be arbitrarily deprived of their nationality, even if it does not result in statelessness as set out in Article 15 of the Universal Declaration of Human Rights (the contents of which has been discussed in detail by the UN Secretary-General). States parties must also respect a child’s right to preserve their nationality, without unlawful interference under Article 8(1) of the CRC. 

Stripping mothers of their citizenship may result in derivative losses or confusion over the nationality of their children. In order to not be arbitrary, deprivation of nationality must meet both procedural and substantive standards, including proportionality. It is difficult to see how stripping a child of their citizenship would ever be a proportionate response and in the child’s best interests. Children and adults alike also have a right to enter/return to their ‘own country’ (which extends beyond citizenship) (ICCPR Article 12(4)).  In General Comment 27, the UN  Human Rights Committee underlined that the limitation of this right is only permissible in ‘very few circumstances’.    

4. Children have the right to life, survival and development 

Given the deplorable conditions of the camps, repatriation of children is crucial to ensuring respect for every child’s right to life, survival and development under Article 6 of the CRC. To truly recover and develop following the horrors that these children have been through, specialised and quality rehabilitation and reintegration are crucial. These children will not receive such support if they stay in the camps where they are exposed to further marginalisation and stigmatisation as well as people who may seek to radicalise them. 

AUSTRALIA’S RESPONSE

To date, only 8 children have been successfully repatriated from Syria to Australia (in June 2019). The Australian Government emphasised that this is because extraction of children is dangerous and difficult, and the repatriation of Australian children linked to foreign fighters is a highly complex process. There is no blanket policy on the repatriation of children associated with foreign fighters, and each case is assessed ‘on its merits’.

The High Court has ruled that the Government cannot lawfully deny entry to its citizens, nor impose ‘clearance’ requirements for their return to Australia. In theory therefore, this means that all children with verified Australian citizenship currently stranded in the camps should be repatriated, notwithstanding their association with foreign fighters. The reality however, is much more complicated.

Verifying Citizenship

In some instances, verification of citizenship may be difficult. For example, identity documents critical to proving citizenship may have been destroyed or the parents of the child may have died. In such instances, the Minister for Home Affairs, Peter Dutton, has stated that children claiming repatriation to Australia will need to verify their citizenship through DNA testing and other measures. The viability of this approach has been called into question given the privacy concerns, legal barriers, ethical considerations and practical limitations of DNA testing. For example, requiring DNA testing without proper safeguards may violate a child’s right to privacy (Article 16 of the CRC). In addition, prolonging an already lengthy process of repatriation on this basis poses a critical threat to children’s right to life, security and development (CRC Article 6).

Dual-Nationality 

In other instances, dual-nationality affects the repatriation process. Since 2015, under amendments to the Australian Citizenship Act, individuals as young as 14 who hold dual-citizenship may have their citizenship ceased automatically on the basis of ‘conduct inconsistent with allegiance to Australia’ including terrorist acts, or involvement with ‘a declared terrorist organisation’ pursuant to sections 33AA and 35AA of the Act.

While the Act stipulates that the Home Affairs Minister must have regard to the ‘best interests’ of the child when making the decision to rescind the citizenship cessation of children aged 14-17, no such duty exists when making a decision that impacts upon these children – such as stripping their parents of citizenship. Further, there is no scope for consideration of the best interests of the child in the decision to cease citizenship itself, which may be automatic. 

This is in violation of numerous obligations under international human rights law. Firstly, by imputing responsibility for conduct associated with terrorism for children aged 14-17, the Act fails to recognise children require ‘special care and assistance’ that necessitates their differential treatment to adults (UDHR Article 25). Further, in revoking the citizenship of minors, Australia fails to preserve the right of children to a nationality (CRC Articles 7 and 8; ICCPR Article 24) and fails to put in place safeguards to prevent statelessness (1961 Statelessness Convention). Finally, leaving minors potentially stateless in dangerous camps is in breach of Australia’s duty to ensure a child’s right to life, survival and development (CRC Article 6).

Temporary Exclusion Orders 

Some children may be subject to a temporary exclusion order (TEO), barring their entry into Australia for up to two years. Section 10 of the  Counter-Terrorism (Temporary Exclusion Orders) Act 2019 gives the Minister for Home Affairs the power to issue a TEO to a minor aged between 14-17 where there are ‘reasonable grounds’ to believe that making such an order would assist in the prevention of terrorist activities or the support of terrorist groups.

While the Act does provide that the Minister must account for the ‘best interests’ of minors as ‘a primary consideration’ when deciding whether to apply a TEO (section 10(3)), this consideration must be balanced against the protection of the community as ‘a paramount consideration’. Should the Australian Government interpret ‘paramount’ to mean ‘superior to’ the consideration of the child’s best interests, they may be in breach of their obligations under Article 3 of the CRC. This concern has been raised by the Joint Parliamentary Committee on Human Rights, the Law Council of Australia and other legal advocacy groups.

CONCLUSION

The Australian Government’s response to the children of foreign fighters is inconsistent with a number of children’s rights under human rights law. Australia’s legislation on citizenship cessation and TEOs are examples of measures which further delay repatriation and fall short of our international obligations. While repatriation involves a number of complex challenges, the CRC requires that Australia, and all other countries of origin, must take a child rights-based approach to all issues flowing from the foreign fighter phenomenon, including repatriation. 

Further, Australia faces the reality that Turkey may return persons from these camps regardless of whether or not it authorises such repatriation. It is also unclear what action, if any, the United States will take to ‘facilitate’ repatriation. It is therefore timely for Australia to establish clear and effective policies on repatriation, reintegration and rehabilitation that give effect to the best interests of these children and respects all their rights under the CRC. 

The gap between Australia’s domestic legislation and international children’s rights demonstrates the need for the government to incorporate the CRC into domestic law in order to adequately protect the full range of children’s rights and guarantee the CRC’s effective implementation in Australia.  

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Castan Centre

The Castan Centre for Human Rights Law seeks to promote and protect human rights through the generation and dissemination of public scholarship in international and domestic human rights law. In pursuit of this mission, the Centre brings the work of human rights scholars, practitioners and advocates from a wide range of disciplines together in the Centre’s key activities of research, teaching, public education (lectures, seminars, conferences, speeches, media presentations, etc), applied research, advice work and consultancies.