European States’ Obligations to Repatriate the Children Detained in Camps in Northeast Syria
and are, therefore, unable to avail themselves of the protection of the State,
which places them at extreme risk of statelessness.230
European States have an obligation towards children born abroad, to confer
the nationality of their parent where they are entitled to acquire this
nationality; otherwise that would constitute arbitrary deprivation of
nationality, especially where it results in statelessness. Therefore, European
States must take every appropriate measure, without delay and, if necessary,
in cooperation with other States, to overcome the legal or practical obstacles
that may impede access to the protection or assertion of nationality.231 Under
no circumstances, by act or omission, should States implement laws or
policies that render children stateless.232 If necessary, European States must
take immediate steps to reform their nationality laws accordingly. 233
There are also some practical implications of these obligations, which are
critical for children detained in the camps who are facing difficulty in
proving they have acquired nationality and/or in proving their “otherwise
stateless” status. In this regard, when trying to establish proof of nationality
or statelessness, European States must develop and implement fast,
effective, flexible, and accessible identification mechanisms for children in
the camps, and, when necessary, must provide resources to the relevant local
administrations, request support from the international community, and seek
the assistance of UN entities operating in the region. 234
However, most European States seem unwilling to facilitate the process of
identifying their child nationals and in most cases strictly require the
verification of children’s nationality through DNA testing as a condition of
repatriation.235 The viability of a systematic DNA test requirement,
230 For more information see: UNHCR, “UNHCR and De Facto Statelessness”, LPPR/2010/01, April 2010,
pp. 32-53.
231 OSCE/ODIHR, “Guidelines for Addressing the Threats and Challenges of ‘Foreign Terrorist Fighters’
within a Human Rights Framework”, 2018, p. 70.
UN, “Key Principles for the Protection, Repatriation, Prosecution, Rehabilitation and Reintegration of
Women and Children with Links to United Nations listed Terrorist Groups”, April 2019, p. 4.
233 In particular if the law discriminates with regard to the transmission or acquisition of nationality on the
basis of parents’ alleged links with ISIS, as it is the case of Denmark. See: DW, “Denmark Approves
Stripping IS Fighters of Citizenship”, 24 October 2019; Meghan Benton and Natalia Banulescu-Bogdan,
“Foreign Fighters: Will Revoking Citizenship Mitigate the Threat?”, Migration Policy Institute, 3 April
2019.
234 UNHCR, “Nationality and Statelessness: Handbook for Parliamentarians N° 22”, July 2014, p. 37 ff;
CommRC, “Concluding observations on the combined 5th and 6th periodic reports of Belgium”,
CRC/C/BEL/CO/5-6 (80th session) 14 January - 1 February 2019, para. 50(a); UNCCT, “Handbook
Children Affected by the Foreign-Fighter Phenomenon: Ensuring A Child Rights-Based Approach”,
2019, para. 96.
235 Vivian Yee, “Thousands of ISIS Children Suffer in Camps as Countries Grapple With Their Fate”, The
New York Times, 8 May 2019.
232
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