Out of sight, out of mind?
The need for a functional approach to jurisdiction under the ECHR regarding the right to return of children of Foreign Terrorist Fighters detained in Northeast Syria
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Master's Thesis from the year 2023 in the subject Law - European and International Law, Intellectual Properties, grade: 8,0, Leiden University (Grotius Centre for International Legal Studies), language: English, abstract: Thousands of children of different nationality live in the prison-like camps al-Hol and al-Roj in Northeast Syria which are controlled by the Syrian Democratic Forces (SDF), a non-State armed group. An estimated three dozen of countries have been engaged in the return of their detained nationals since 2019. The unwillingness of certain States, particularly those bound by the ...
Master's Thesis from the year 2023 in the subject Law - European and International Law, Intellectual Properties, grade: 8,0, Leiden University (Grotius Centre for International Legal Studies), language: English, abstract: Thousands of children of different nationality live in the prison-like camps al-Hol and al-Roj in Northeast Syria which are controlled by the Syrian Democratic Forces (SDF), a non-State armed group. An estimated three dozen of countries have been engaged in the return of their detained nationals since 2019. The unwillingness of certain States, particularly those bound by the European Convention on Human Rights (ECHR) and/or EU law, to repatriate children may be explained by obligations related to family reunification under Article 8 of the ECHR and under EU Directive 2004/38/EC. These obligations would extend to the children's parents who States consider a threat to national security. This is particularly problematic since the SDF do not allow repatriation of children without their parents. A case was brought before the European Court of Human Rights (ECtHR) by applicants, acting on behalf of their French daughters and grandchildren held in the camps. The Court found France's jurisdiction to be established only regarding the right to return. This thesis focusses on the right to return and Article 3 § 2 of Protocol of No. 4 to the Convention, which is of particular interest given the scarcity of case law on it and its limited material scope. It argues for a functional approach to jurisdiction with certain limitations in order to address the question of extraterritorial applicability of the right to return of children under Article 3 § 2 of Protocol No. 4. This newly developed and proposed "factual and legal nexus" doctrine would, with slight adjustments, also be applicable to other Convention rights, in particular the prohibition of torture and ill-treatment (Article 3 of the ECHR).
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