D Explanatory memorandum by Mr Stefan
Schennach, rapporteur for opinion
1. I would like to thank Mr Pieter
Omtzigt (Netherlands, EPP/CD) for the report he drew up on behalf
of the Committee on Legal Affairs and Human Rights. As I said in
my report of January 2020, which was written in response to a request
for an urgent Parliamentary Assembly debate, I am concerned for
these children detained in squalid camps. Once again, I welcome
the adoption by a very large majority of
Resolution 2321 (2020) and
Recommendation 2169 (2020) “International obligations concerning the repatriation
of children from war and conflict zones”. I note that they are both
in line with the decision of the European Court of Human Rights
of 14 September 2022.
Note As
a participant in the high-level international conference on the
roles of women and children in terrorism, in December 2021, I was
able to talk with experts about the complexities of repatriation
operations and their sensitive political nature. While I am aware
of how difficult it is to ensure that these children are brought
back, I note that most European countries have already repatriated
their citizens and that only a few States are lagging behind.
2. The best interests of the child must be the one and only principle
that guides us. Protracting repatriation decisions by operating
on a case-by-case basis not only squanders resources, it has left
children trapped in a living hell for far too long, depriving them
of their basic rights, including the right to be cared for; be protected from
disease; have a good and well-balanced diet; go to school; be protected
from violence, abuse and any form of exploitation; not engage in
warfare; have access to shelter; be helped when in danger; have
decent living conditions; to play, and more. All our member States
have ratified the International Convention on the Rights of the
Child and I expect the Assembly to interpret this crucial text in
the same way.
3. I hope that the best interests of the child will guide the
authorities in their choices, for the welfare of these children
and of their relatives who are demanding their return to Europe,
and also for our shared interest and safety.
4. Paragraph 11 of the draft resolution contradicts
Resolution 2321 (2020), which was adopted by a very large majority, in particular,
paragraphs 8.1.1: “take all necessary measures to ensure immediate
repatriation of all children whose parents, believed to be affiliated
to Daesh, are citizens of their State, regardless of their age or
degree of involvement in the conflict” and 8.1.2:
“repatriate children together
with their mothers or primary care givers, unless it is not in the
best interest of the child”
(Amendment
A).
5. It is our duty to uphold the indivisibility of human rights
while recognising their universal and inalienable nature. The proposal
in paragraph 11 for the Assembly to consider that “having taken
into account the ongoing threat posed by Daesh fighters, it is crucial
to consider that they have forfeited their right to family life
under Article 8 of the European Convention of Human Rights (ETS
No. 5)” fails to recognise that Article 8 of the Convention also
provides that the children of Daesh fighters have their own right
to family life, of which they cannot be deprived on the basis of
their parents’ crimes (Amendment
A).
6. In its recent decision, the European Court of Human Rights
pointed out that the requests for repatriation “were made on the
basis of the fundamental values of the democratic societies which
make up the Council of Europe, while [women and children] were facing
a real and immediate threat to their lives and physical well-being,
on account both of the living conditions and safety concerns in
the camps, which are regarded as incompatible with respect for human
dignity”. Being deprived of the right to family life is a violation
of the best interests of the child. The tools for tackling the ongoing
threat posed by Daesh fighters are inherently different from those
that enable children to thrive and grow up into responsible adults
participating in community life. Punishing acts of terrorism is
only one way of effectively combating the obscurantism of Daesh.
Our values will always prevail over their hatred (Amendment A).
7. The proposed new paragraph incorporates elements of the declaration
adopted by the Social Affairs Committee and is in line with the
previous Assembly resolution and the decision of the European Court
of Human Rights (Amendment B).
8. I propose a slight amendment to paragraph 12 to widen its
scope. All children living in the region who have been harmed by
acts committed in the name of Daesh should be regarded as victims
of this terrorist regime. Most of the children in the Al-Hol and
Roj camps were very young at the time of the events. They need special
care and attention to ensure that their development is stable and
smooth in future. I recommend placing emphasis on the situation
of children in this part of the draft resolution (Amendment C).
9. I propose removing from paragraph 13.6 the segment “in a non-discriminatory
manner, avoiding gender stereotypes”, as it does not provide any
useful clarification. The battle for gender equality is one that
is waged by the Assembly every day. In this case, we are talking
about women who have been perpetrators or accomplices of serious
crimes and must be prosecuted and held accountable for their actions.
Many European countries have already repatriated children and their
mothers. Repatriation is not an escape route that would prevent
justice from being done. My initial report was considered by the
Assembly almost three years ago. These children have been living
in inhuman and degrading conditions for far too long. It is urgent
that they now come home and that the perpetrators and accomplices
of crimes be brought to justice, including by our own courts and
in our own jurisdictions (Amendment
D).
10. I propose to replace the word “when” with “if” in paragraph 13.7
because I consider that children cannot be tried as members or supporters
of Daesh, as they, too, are its victims. Even if some of them have
since grown into young adults, they were only children at the time
of the events. They are first and foremost the victims of a criminal
regime which does not honour the commitment to the child’s welfare
that we have all made. These children need to be received in the
best possible conditions so that they can rebuild their lives, with
their specific needs being met (Amendment
E).
11. I propose that paragraph 4.3 of the recommendation be amended
to include a reference aimed at preventing any risk that perpetrators
of crimes – covered by international law and committed by Daesh
foreign fighters – could be sentenced to death by a special international
tribunal or a hybrid tribunal (Amendment
F). Since we mark the World Day against the Death Penalty
every 10 October and all member States have abolished the death
penalty, it is important to reaffirm this commitment set out in
Protocol No. 6 (ETS No. 114) and reiterated in Protocol No. 13 (ETS
No. 187) to the European Convention on Human Rights. I would also like
to point out here that the Rome Statute of July 1998, which established
the International Criminal Court, does not provide for the death
penalty to be imposed as a sentence either.
