European States’ Obligations to Repatriate the Children Detained in Camps in Northeast Syria Because the camps are operating in the context of the armed conflict in northeast Syria, there is a question as to whether international humanitarian law applies, and the interaction between those rules and human rights law. Given that SDF and ISIS are non-state armed groups,428 and there has been protracted armed violence between them, the situation is (or at least was) 429 likely to be properly classified as a non-international armed conflict (“NIAC”).430 The main source of international humanitarian law governing NIACs is common Article 3 of the four Geneva Conventions, 431 which specifically refers to persons in detention. 432 Whereas in international armed conflicts, international humanitarian law would permit detention for security purposes,433 in NIACs the rules governing detention are ambiguous 434 and SDF’s legal basis for detention is questionable. As a non-state armed group in a NIAC, it is not clear that, legally, SDF has the authority to detain, 435 and, factually, it has not provided a legal basis for its detention of the children and women in the camps.436 Furthermore, the authority to detain during a NIAC is constrained by the concurrent application of human rights law.437 For instance, in a landmark judgment, the ECtHR underlined that by reason of the co-existence of the safeguards provided by international 428 See, for example, Conrad Nyamutata, “Young Terrorists or Child Soldiers? ISIS Children, International Law and Victimhood,” Journal of Conflict and Security Law, 2020, Volume 25, Issue 2, p. 246. 429 There is a factual and legal question as to whether, given the decline in hostilities in the area, the conflict can still properly be considered to be a NIAC. 430 RSI, “Europe’s Guantanamo: The Indefinite Detention of European Women and Children in North East Syria,” 2020, para. 24-30; Monika Hakimi, 2008, “International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide,” Yale Journal of International Law, Volume 33, p. 381. 431 The 1977 Additional Protocol II to the Geneva Conventions relating to the protection of victims of noninternational armed conflicts does not apply because Syria has not ratified it. 432 Common Article 3 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War and Geneva Convention (IV) Relative to the Protection of Civilian persons in Time of War. 433 See: Geneva Convention (III), Articles 21 and 118; Geneva Convention (IV), Article 42. 434 See: Frédéric Mégret, “Detention by Non-State Armed Groups in Non-International Armed Conflicts: International Humanitarian Law, International Human Rights Law and the Question of Right Authority,” in Ezequiel Heffes, Marcos D. Kotlik and Manuel Ventura (eds.), “International Humanitarian Law and Non-State Actors: Debates, Law and Practice,” T.M.C. Asser/Springer, 2019/forthcoming, pp. 2-3; Monika Hakimi, “International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide,” 2018, p. 381; RSI, “Europe’s Guantanamo: The Indefinite Detention of European Women and Children in North East Syria,” 2020, para. 31. 435 Frédéric Mégret, “Detention by Non-State Armed Groups in Non-International Armed Conflicts: International Humanitarian Law, International Human Rights Law and the Question of Right Authority,” pp. 2-3, 9-12; RSI, “Europe’s Guantanamo: The Indefinite Detention of European Women and Children in North East Syria,” 2020, para. 32-33. 436 RSI, “Europe’s Guantanamo: The Indefinite Detention of European Women and Children in North East Syria,” 2020, para. 33. 437 Monika Hakimi, “International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide,” 2008, p. 381; Knut Dormann, “Detention in Non-International Armed Conflicts,” in Kenneth Watkin and Andre J. Norris (eds.) “Non-International Armed Conflict in the Twenty First Century, International Law Studies,” Volume 88, pp. 348-349; ECtHR, “Hassan v. UK,” para. 104. 74