The best interests as a primary consideration
and States’ security considerations
58.
Children affected by the foreign fighter
phenomenon should be viewed primarily as victims, especially when they were recruited and
used by armed groups, including designated terrorist groups.101 (See section 1.3.1 on treatment of
children primarily as victims.) Particularly in relation to children deprived of liberty due to association with armed groups, the Security Council has
urged Member States to comply with applicable
obligations under the Convention on the Rights of
the Child.102
59.
The Convention on the Rights of the
Child provides that the child’s best interests
should be a “primary consideration”.103 That
means that the child’s best interests should take
precedence and should not be treated just as
one of several considerations. In reality, there
may be situations in which there are conflicts
between the best interests of a child and the
interests or rights of others, such as those of their
parents, other children and the public. In such
a case, potential conflicts must be resolved on
a case-by-case basis, carefully balancing the
interests of all parties and finding a suitable
compromise. However, the most weight should
be given to that which best serves the child.104
60.
The Security Council Counter-Terrorism
Committee has also recognized that, in cases
involving children, the best interests of the child
should be treated as a primary consideration
and that special safeguards and legal protec101 Security Council resolution 2427 (2018), para 20.
102 Ibid.
103 Convention on the Rights of the Child (1989), art. 3(1).
104 Committee on the Rights of the Child, general comment
No. 14 (2013), para. 39.
30.
tions should be put in place to ensure that all
appropriate actions are taken in cases involving
children, in full compliance with their obligations
under international law.105
61.
A State may consider or determine that a
child affected by the foreign fighter phenomenon
is a security threat because of his or her past
experiences
with
a
designated
terrorist group; however, the best interests of the
child principle requires States to fashion solutions to serve the child’s best interests on
a case-by-case basis and pursuant to due
process, even when the child’s interests may conflict with the State’s perceived security interests.106
In this regard, the Security Council has noted that
States should ensure that the competent authorities assess each child individually and without
prejudice and take his or her rights and needs into
account, while also considering the circumstances
relating to the case and proceeding with any
further criminal or security-related actions.107
62.
In short, States should place the child
at the center of considerations and help ensure
their rights even when the child is considered
a potential security risk. They should also aim
to assist the child in achieving his or her fullest
potential and prepare the child for a responsible
life in society.108 In the long term, this is also likely
to align with States’ security interests by preventing the child’s further involvement in violence in
the future. As the United Nations Plan of Action
to Prevent Violent Extremism recognizes, the lack
105 S/2018/77, para. 42.
106 Joint general comment No. 3 (2017) of the Committee
on the Protection of the Rights of All Migrant Workers and
Members of Their Families No. 22 (2017) of the Committee on
the Rights of the Child, para 33.
107 S/2018/1177, principle 42.
108 Convention on the Rights of the Child (1989), art. 29.