Blogpost by Philomène Franssen, candidate in the MA Refugee Protection & Forced Migration Studies at the University of London, where she studies Statelessness, Nationality and the Protection of Stateless Persons. Philomène also holds a Diploma in Human Rights and Forced Displacement from the University for Peace. Interested in the intersection of issues relating to forced displacement and statelessness, she is an individual member of the Asia Pacific Refugee Rights Network (APRRN) and of the European Network on Statelessness (ENS).[1][2]
Statelessness, or the fact of not being considered as a national by any state, is a “legal anomaly” that affects an estimated 15 million people worldwide. There are various reasons why people can be born or rendered stateless. However, regardless of the reasons and irrespective of the context they find themselves in, the lack of such fundamental legal bond to a(ny) state exposes stateless persons to severe discrimination, human rights violations and abuses. As such, statelessness is both a root cause and a consequence of forced displacement, the most (in)famous case being that of the stateless Rohingya refugees from Myanmar. In the forced migration context, statelessness undeniably only exacerbates the issues facing refugees and other forcibly displaced persons.
In this blogpost I touch upon the critical issue of statelessness (or the risk of) as a result of arbitrary deprivation of nationality, in a context of increased global securitization.
Introduction
It is difficult to think of an issue that is more “highly politically charged” (here, p.52), sensitive and divisive than that of the ‘foreign (terrorist) fighter phenomenon’[3] and their return — as well as that of their family members— to EU soil.
Yet, this may very well be a boiling issue confronting the French Government at the moment.
Indeed, recent news seem to indicate that French citizen Hayat Boumeddiene, wife and alleged accomplice of Amedy Coulibaly —one of the ISIS[4] perpetrator of the January 2015 Paris attacks — may be alive. While French authorities believed she had been killed in an airstrike in 2019, she is now thought to have escaped from one of the IDP/refugee camps in Northeastern Syria/Kurdistan where she was reportedly being detained. Hence, for France her escape is likely to bring back to the forefront the political dilemma of whether to repatriate her for the purpose of prosecution, or rather deprive her of her nationality[5] in absentia, so as to prevent her from (legally) returning to France (see more here paras 67, 104; and here, Principle 7 and para 62).
Deprivation of nationality as a punitive and national security measure has indeed been a hot and sensitive topic in France, as in many other countries (see here, here and here). The issue gained particular momentum in the aftermath of the November 2015 Paris attacks, when the then French President, François Hollande, proposed – and failed – (see here p.9) to amend the French Constitution through the Draft Constitutional Law on the “Protection of the Nation”. The reform initially aimed at allowing deprivation of nationality for any French citizen convicted of a terrorist offence deemed to constitute “a serious violation to the Nation’s life”, even if it meant rendering them stateless.
However, this measure (and, more generally, the broader counterterrorism policies within which it is inscribed), has been deemed largely ineffective (see also here p.225) and even counterproductive (see also here, p.233; here, p.25; here, para 44; and here, para 86) to the national security interests it purports to protect. Indeed, the legal and social erasure that results from citizenship stripping could potentially lead to further radicalization of the individual concerned.
Besides, and as also highlighted by several international law scholars and experts in the recently published Principles on Deprivation of Nationality as a National Security Measure, as well as by former Government officials, such a drastic measure may also entail severely detrimental —and largely overlooked — consequences for foreign terrorist fighters’ (FTFs) family members, and primarily for their children (see also here, para 86).
The latter indeed end up being, on many accounts, victims of decisions taken by their parents and, further on, by short-sighted Governments who, similar to the French Government, (find it convenient to) invoke a predominantly hostile public opinion to “legitimize” acting tough — yet ineffectively— on terrorism-related matters.
Among such actions, the outward refusal to repatriate these children and their mothers on account of national security concerns, and despite repeated pleas made by a Collective of French Families with relatives in the camps, as well as by the French lawyers who represent them.
As a result, an estimated 300 children of French FTFs who were either born in ISIS-controlled territory, or were forcefully brought there by their parents upon their joining of ISIS ranks, are currently stranded and languishing in several IDP/refugee camps spread across the Syrian Kurdistan, under the control of Kurdish-led Syrian Democratic Forces (SDF). The majority of these children are below the age of six, and some of them are orphans.
The youngest ones who were born there have known nothing but the atrocities of war and terrorism, as well as the deprivation arising from displacement and life in the camps. Nonetheless, instead of ensuring their protection, the counterterrorism policies adopted by the French Government further expose them to the risk of statelessness, and the life of destitution it entails. Such a risk notably arises as a result of citizenship stripping and lack of (UN Member) State-recognized birth certificate, whose issuance is often impossible in the conflict zones where these children have been living, as will be explained in this blogpost.
As such, in exposing the practical and legal situation of these children in light of France’s obligations under international human rights law (IHRL), the author’s aim is twofold: to make the case for their urgent repatriation, while also underlining that in line with UN-guidance (p.29), these children should first and foremost be considered as victims of terrorism and conflict (see also here, para 31), who have been suffering from egregious violations of their fundamental rights (see also here, para 4; and here), only further eroded by the French Government’s willful inaction.
Brief background: why are these children in camps, in which conditions do they live, and what has been the approach of the French Government to their plight so far?
Following the defeat of the Islamic State (ISIS) against the SDF in their last stronghold of Al-Baghouz in the Eastern Syria’s Governorate of Deir-er-Zor in March 2019, a large number of FTFs, along with their family members, have been captured by the SDF and respectively sent to several prisons and IDP/refugee camps located throughout Northeastern Syria (see map here, p.5), under their authority.
While exact figures of the number of children currently detained in those camps are unknown, in May 2019 UNICEF Executive Director estimated that 29, 000 children of FTFs from 60 countries, most being less than 12 years old, were present in Syria, while an estimated 1,000 were believed to be in Iraq.
In Northeastern Syria’s Al-Hassakeh Governorate, the majority of these children and their mothers are being held in the infamous overcrowded camps of Al-Hol and Al-Roj, in a separate fenced-off annex specially constructed for “Third Country Nationals (TCN)” with real or perceived affiliations with ISIS (see here, p.3). Among them an estimated 300 children of French FTFs, exposed to living conditions that are so appalling that some children are dying from severe malnutrition, cold, preventable diseases and wounds. Such cruel, inhumane and degrading treatment even prompted the lawyers representing their families to lodge a complaint against France at the UN Committee Against Torture in March 2019.
Yet, although the French Government is well aware of their situation, it essentially continues to refuse the repatriation of these children. Such an approach not only disregards the Opinion issued by France’s Consultative Commission for Human Rights on the matter, but also undermines numerous UN-issued guidance, guidelines and even Resolutions. Furthermore, it ignores the unequivocal Position of the UN Special Rapporteur on Counter-Terrorism and Human Rights, as well as the UN Secretary-General’s latest report on Children and armed Conflict (para 184), all of which prescribe the importance of repatriating these children — along with their parent(s) — so as to uphold the principle of the best interests of the child, including by avoiding further traumatization (see also the 2019 statement of the UN High Commissioner for Human Rights).
Instead, French authorities have so far resorted to a case-by-case approach, which has led to the repatriation of 18 children since March 2019,[6] thereby essentially proving that, if willing, France does have the necessary capacity to undertake these repatriations. However, in most cases these returns have resulted in the separation of children from their mothers and/or siblings. Such separation, when decided in the absence of a formal best interests assessment and determination procedure, constitutes an utter violation of the principle of the best interests of the child (see here paras 58-70) that prescribes to maintain family unity, unless determined contrary to the child’s best interests.
The fact that France prioritizes its national security concerns over the best interests of these children speaks volume about the double standards adopted by the country when it comes to protecting “its children”.
Why are these children at risk of statelessness and what does this risk entail?
Under Art 1(1) of the 1954 Convention relating to the status of stateless persons (which, of the relevant four regional and international treaties related to statelessness, is the only one to which France is a Party), a stateless person is defined as “a person who is not considered a national by any State under the operation of its law.”
So how does statelessness concern these children who have at least one French parent, considering that under French nationality law (which is a mixture of jus sanguinis and jus soli principles) this is a sufficient requirement to ensure that French citizenship is bestowed upon the child, regardless of whether s/he was born in France?
As we will see in this section, the aforementioned (in)actions of the French Government towards French FTFs and their family members give rise to a number of intersecting — and therefore compounded — issues with regards to acquisition and retention of nationality for these (otherwise legally French) children.
- Deprivation of nationality as a national security measure disproportionately affects children of FTFs: under French law deprivation of nationality is a matter primarily regulated by Article 25 of the Civil Code, which stipulates that the measure can only affect French naturalized dual or multiple nationals,[7] thereby a priori ensuring a safeguard against statelessness. Yet, the following (non-exhaustive) scenarios give us an idea of the limitations of these safeguards in cases of conflicting nationality laws:
- Children of FTFs born in ISIS-controlled territory commonly have a foreign father and a Syrian mother (see also here, p.2). As such, where it is the father who is deprived of his French citizenship in absentia, but where he is imprisoned, displaced, missing, or deceased, it becomes very difficult to establish the child’s legal link to him, which is nonetheless necessary to prove his entitlement to his father’s nationalities (see here, p.28). Concurrently, where the mother is Syrian, given that Syria is one of the 25 countries worldwide to retain gender discriminatory laws that deny women the right to confer nationality on their children on an equal basis with men, the child is then at risk of statelessness, even despite safeguards against statelessness in the country’s nationality law, but which are “rarely implemented in practice” (see here, para 17).
- The same logic would apply if it were the mother who would be deprived of her French citizenship, but where the country/ies of her other nationality/ies apply gender discriminatory laws, and where circumstances would not allow to establish the necessary evidence of paternity for the child to acquire his father’s Syrian citizenship (see here para 18, and here, p.2) for instance.
- Lack of recognition by France of ISIS-issued birth registration certificates: Most of these children born in ISIS-controlled territory would likely have had their birth registered by ISIS-officials under the “Caliphate”, albeit often under their father’s ISIS alias. Hence, although many would therefore hold an ISIS-issued birth certificate, France does not recognize these documents (as is the case of most UN Member States).
However, in the absence of proof of identity and evidence of parentage, and if the French parent is deceased, imprisoned, displaced or missing, the child’s entitlement to French citizenship cannot be proved, while the aforementioned hurdles with regards to the acquisition of the Syrian mother’s nationality also apply.
Furthermore, as reported by Human Rights Watch in 2016, “[t]he absence of any UN or international relief organization operating in ISIS areas” during the time of the ‘Caliphate’ only further reduced the opportunities for these children to benefit from “UN or independently-issued documents such as UNHCR certificates or vaccine booklets”, which today could help establish their (legal) identity.
- Lack of access to birth registration procedures in a conflict zone: owing to the fact that diplomatic relations between France and Syria have been severed in the context of the raging conflict, France no longer has any consular presence in the country since March 2012. Hence, registering the birth of French FTFs’ children in Syria has been nearly impossible, (not to mention that regardless of whether or not France did provide consular services in the country, it would have been unlikely for most FTFs under ISIS to approach their consulate). The lack of access to birth registration procedures has therefore severely hindered the ability to establish the child’s identity and parentage, which is however necessary to prove their entitlement to French citizenship. Combined with the aforementioned hurdles with regards to the acquisition of the Syrian mother’s nationality, the child is thus effectively denied the right to recognition as a person before the law (see here, para 4).[8]
The impact of statelessness on the lives of these children is significant. First of all, in the context of the camps, the lack of documentation only exacerbates the stigma attached to the label “children of ISIS”, and may even impede access to humanitarian aid and essential services (see here for a detailed analysis of similar challenges facing family members of FTFs in Iraq). Additionally, given the dire conditions in which most of these children live, statelessness renders them increasingly vulnerable to exploitation, abuse, trafficking, as well as recruitment and indoctrination by ISIS members (see here para 116).
Furthermore, stateless children also face major obstacles to access and enjoy fundamental rights, such as education, healthcare, or other social services and, further down the line, access to employment, social welfare, or housing to name only a few. In addition, the lack of valid documentation undeniably severely curtails their freedom of movement.
Indeed, “in a world based on the assumption of citizenship” as eloquently put by Bloom, Cole and Tonkiss, the lack of a(ny) legal identity essentially denies stateless children the right to legal protection and condemns them to a life of invisibility, destitution and human rights violations and abuses (see here para 89).
As such, the adverse emotional and psychological impact of statelessness, further exacerbated by the dire conditions in which these children survive in Syria, is simply incommensurable.
As stated by the UN High Commissioner on Human Rights, “to inflict statelessness on children who have already suffered so much is an act of irresponsible cruelty”. Moreover, doing so is only likely to foster feelings of resentment and grievances in these children as they grow. This, will in turn render them more vulnerable to the indoctrination and radicalization that EU Member States (EUMS) such as France, believe (or allege) to address, when refusing to ensure their prompt and safe repatriation, thereby conveniently circumventing their obligations under international human rights law.
What are France’s international obligations towards these children?
In reviewing the situation of these children in light of France’s international obligations, let us first recall that at the core of IHRL, stands the right of everyone to a nationality, as enshrined in Article 15 of the Universal Declaration of Human Rights (UDHR), the possession of which conditions the access and enjoyment of pretty much every other human rights (here para 87) —a fact accurately captured by Hannah Arendt as “the right to have rights” (see here).
Hence, Article 15 of the UDHR lies at the root of numerous human rights treaties and instruments that prescribe the right of every individual to be recognized as a person before the law, while prohibiting arbitrary deprivation of nationality (see here, p. 4; and here, para 85), so as to avoid statelessness.
Central to the regulation of statelessness is the 1961 Convention on the Reduction of Statelessness, which under Article 6 prescribes some safeguards against childhood statelessness, including where it results from citizenship stripping (more here, paras 28-30), but to which France is regrettably not a party.
The country is however party to the 1966 International Covenant on Civil and Political Rights (ICCPR), which under Art 24(2) and (3) explicitly prescribes the right of every child to “be registered immediately after birth”, to “have a name”, and to “acquire a nationality”.
Furthermore, and most importantly, France is also party to the 1989 Convention on the Rights of the Child (CRC), which under Art 7(1) and (2) respectively reiterates these rights, while also providing minimum safeguards against childhood statelessness. Additionally, pursuant to Article 3(1) of the CRC, all rights enshrined in the Convention must be read, interpreted and implemented in light of the overarching principle of the best interests of the child. As such, and as restated in the Principles on Deprivation of Nationality as a National Security Measure (Principle 9.7.4.), “[i]t can never be in the best interest of a child to be made stateless or be deprived of nationality”.
Particularly relevant to the position and in/action of the French Government with respect to these children languishing in the camps, is General comment No. 14 (2013, paras 17-18) from the UN Committee on the Rights of the Child (UN CRC), which specifies that “Article 3, paragraph 1 seeks to ensure that the right [of the child to have his or her best interests taken as a primary consideration] is guaranteed in all decisions and actions concerning children.[…] Inaction or failure to take action and omissions are also ‘actions’”. Consequently, and as stated in the UN Counter-Terrorism Centre’s Handbook on children affected by the foreign-fighter phenomenon (para 89), it can be inferred that “the failure [of the French Government] to provide a child with birth registration or other identification documents constitutes neglect of the child, exposing them to potentially vulnerable situations”.
Hence, in line with the country’s (national and) international obligations, France must make every effort to ensure that the birth of children born to French FTFs abroad is registered, and that the ISIS-issued birth certificates are recognized, so as to ensure that every child who is entitled to French nationality under the law is recognized as a national in practice (see here, p.30). Doing so would only fulfill their fundamental right to a nationality (see here, para 54; and here, p.26), effectively protecting them from statelessness, regardless of their parents’ status or choices (see here, p.30).
Finally, in line with international law and the principle of international solidarity and cooperation, the French Government must take responsibility for its own nationals, and must therefore ensure the safe and urgent repatriation of all these children along with their parent(s). Doing so would not only be in the long-term interest of both national and international peace and security (see here, para 36), but would also uphold the core human rights that supposedly constitute the foundational tenet of the French Republic’s values.
Conclusion
Despite the obvious moral, humanitarian and human rights imperative of returning these French children, the French Government appears determined to carry on with its “hands-off and head-in-the-sand” approach. This attitude allows it to conveniently circumvent its international obligations by delegating responsibility for its own nationals to the Kurdish-led SDF in Syria, notwithstanding repeated statements by the latter that they don’t have the necessary capacity to administer the camps indefinitely (see here, p.68).
By denying these children the legal existence and protection they are lawfully entitled to, France establishes a “false dichotomy between security interests and child rights”, which only makes it blind to the actual long-term national and international security threat it is thereby fomenting.
Indeed, denied the right to belong, deprived of their liberty in the camps, denied the right to equality before the law, despite being victims of a violent extremist ideology and of horrendous conflicts, these children are being let down by their own country. Consequently, they are unlikely to ever know the meaning of fraternity, or to ever cherish and embrace the values of the French Republic. If nothing else, France is sowing here the fertile ground for indoctrination and radicalization that it (allegedly) tries so hard to prevent.
After all, and as so rightly put by UN Secretary General António Guterres, “[t]errorism is fundamentally the destruction and denial of human rights, and the fight against terrorism will never succeed in perpetuating the same destruction and denial.”
Repatriation is therefore the only human-rights-compliant response to the ordeal suffered by these children, but time matters. So when?
[1] The author does not endorse the use of this label, which she believes to carry strong stigma contributing to forging and/or supporting hostile public perceptions of the group of children it intends to designate, but by using the term in inverted commas she hopes to draw attention to its controversial use.
[2] The author would like to thank Dr Tamás Molnár for his valuable comments on this blog entry. All views expressed herein and any errors are entirely the author’s own.
[3] As per the 2014 UN Security Council Resolution 2178, para 6(a) the Foreign terrorist Fighters phenomenon refers to “nationals who travel or attempt to travel to a State other than their States of residence or nationality, and other individuals who travel or attempt to travel from their territories to a State other than their States of residence or nationality, for the purpose of theperpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training.” (see also here, p.8).
The author is aware of the existing controversies with respect to the use of the term ‘Foreign Terrorist Fighter’, as opposed to ‘Foreign Fighter’, however for the purpose of this blogpost the UN terminology, which is the one most commonly referred to in the international arena (as explained here, p.8), will be used. Nonetheless, for more information on the human rights implications of the use of the term Foreign Terrorist Fighter, see here, pp.22-28.
[4] This blogpost will refer to the group as ISIS (Islamic State of Iraq and Syria), which is also known as The Islamic State of Iraq and the Levant (ISIL) or Daesh.
[5] For the purpose of this blogpost, the terms ‘nationality’ and ‘citizenship’ are synonymous.
[6] *Since this blogpost was first written the French Government has proceeded to repatriate 10 children from the camps of Al-Hol and Al-Roj on 22nd of June 2020, but once more leaving their mothers and siblings behind. Repatriation being conditional upon the mother’s “agreement” to let her child go, such untenable “lesser of two evils’” deal leaves no alternative to these families other than resigning to accepting such traumatizing separations.
[7] This is precisely one aspect of the provision that was targeted by the aforementioned constitutional reform project, purportedly to ensure equality before the law between birthright citizens and naturalized citizens, albeit only to some extent (as explained here, p.11, as discussed here and as condemned here, p.3).
[8] For more information on additional hurdles to child’s birth registration in the context of Syria’s Civil War, particularly for populations living in the non-Government of Syria (GoS) controlled areas, see here, para 23.
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