(see section 1.2.2 above on the best interests of
the child principle) and the non-refoulement
principle under international law.
4.1
International Law and Standards
4.1.1 Human Rights Considerations Calling
for Repatriation
128.
In February 2019, the Committee on the
Rights of the Child, in its concluding observations
to Belgium on the implementation of the Optional
Protocol to the Convention on the Rights of the
Child on the involvement of children in armed
conflict, recommended that “taking into
consideration paragraph 26 of Security Council
resolution 2427 (2018), [to] promptly facilitate the
repatriation of all Belgian children, and whenever
possible, their families, regardless of age or the
degree of suspected involvement in the armed
conflict and in compliance with article 9 of the
Convention”.250 In April 2019, the United Nations
Secretary-General endorsed the “key principles
for the protection, repatriation, prosecution,
rehabilitation and reintegration of women and
children with links to United Nations listed
terrorist groups,” which calls upon Member States
to ensure that their nationals who are family
members of suspected foreign fighters and do
not face serious charges are repatriated for the
purposes of prosecution, rehabilitation and/
or reintegration.251 A number of international
human rights law provisions support these calls.
The right to life
129.
States’ obligations towards children’s right
to life, maximum survival and development may
call for them to repatriate a child when he or she is
in a situation in which his or her life is in danger.252
Under the International Covenant on Civil and
Political Rights, every child is entitled “to such
measures of protection as are required by his
status as a minor, on the part of his family,
society and the State”.253 This provision
requires States parties to adopt special measures
designed to protect the life of every child.
Similarly, the Convention on the Rights of the Child
requires States parties to take all appropriate
measures to protect the child from “all forms of
physical or mental violence, injury or abuse,
neglect or negligent treatment, maltreatment or
exploitation”.254 This article applies to children
without a primary or proxy caregiver, children
of migrant parents or unaccompanied children
outside their countries of origin.255 States must
take responsibility as the “de facto” caregiver
or the one “who has the care of the child”, even
if such children are not within the context of
physical care settings”.256 The Convention also
obligates States parties “to ensure the child such
protection and care as is necessary for his or
her well-being”.257 These provisions may call for
repatriation when the child’s life would be
better protected in the country of origin and it is
deemed to be in the best interests of the child,
252 Human Rights Committee, general comment No. 36
(2018), para. 63.
253 International Covenant on Civil and Political Rights
(1966), art. 24(1).
250 Committee on the Rights of the Child, concluding observations: Belgium (2019)(CRC/C/BEL/CO/5-6), para. 50 (b).
251 United Nations, Key principles for the protection, repatriation, prosecution, rehabilitation and reintegration of
women and children with links to United Nations listed terrorist groups (2019).
60.
254 Convention on the Rights of the Child (1989), art. 19(1).
255 Committee on the Rights of the Child, general comment
No. 13 (2011), para. 35.
256 Ibid.
257 Convention on the Rights of the Child (1989), art. 3(2).
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