European States’ Obligations to Repatriate the Children Detained in Camps in Northeast Syria Terminology The term “child” is generally understood to mean any individual under the age of 18.6 This briefing paper uses the term “individuals believed to be affiliated with ISIS who are nationals of European countries” 7 instead of “foreign fighters,”8 or “foreign terrorists fighters,”9 in order to acknowledge the diversity of those affiliated or perceived to be affiliated with ISIS, including women and children, and their various possible roles within ISIS,10 as well as to avoid using terms that suggest involvement in alleged crimes that have not been legally proven. It also acknowledges that not all foreign fighters are “terrorists,” and that international humanitarian law may be the more appropriate framework for assessing their conduct.11 For the purpose of this briefing paper, the term “primary caregivers” means parent(s), legal guardian(s), or any other person who has the primary care of the child.12 This includes any individual, regardless of gender and paternal, legal, and citizenship status, who assumed, de facto, the primary role of providing care and attention to a child. This formulation recognizes that while the primary caregivers of some children in the camps are their biological parents, many foreign children detained in the camps are 6 7 8 9 10 11 12 8 Convention of the Rights of the Child ( “CRC”) Article 1; Council of Europe (“CoE”), “The Nationality of Children Recommendation CM/Rec(2009)13 and Explanatory Memorandum”, 2009/13, 9 December 2009 (7th Sitting), preamble, p. 8. This term has been also used by the Council of Europe. See: “children in Syria and Iraq whose parents, believed to be affiliated with Daesh, are citizens of Council of Europe member State,” CoE, Parliamentary Assembly, “Resolution 2321 (2020) on International Obligations Concerning The Repatriation of Children From War and Conflict Zones,” 30 January 2020, para. 1. See: Geneva Academy of International Humanitarian Law and Human Rights, “Academy Briefing No. 7—Foreign Fighters under International Law”, 2014, p. 6. The term “foreign terrorist fighter” is defined by UN Security Council (“UNSC”), as “individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection with armed conflict”. See: UNSC, “Resolution 2178 (2014) on Threats to International Peace and Security Caused by Foreign Terrorist Fighters”, S/RES/2178, 24 September 2014, preamble. Joana Cook and Gina Vale, “From Daesh to 'Diaspora' II: The Challenges Posed by Women and Minors After the Fall of the Caliphate”, CTC-Sentinel Combatting Terrorism Center at West Point, July 2019, Volume 11, Issue 6, pp. 31-32. For criticism of the term from a human rights point of view see: Helen Duffy, “Foreign Terrorist Fighters”: A Human Rights Approach?”, Security and Human Rights, Volume 29, Issue 1-4, 12 December 2018, pp. 134-136; Francesca Capone, “Countering “Foreign Terrorist Fighters”: A Critical Appraisal of the Framework Established by the UN Security Council Resolutions,” 25 Italian Year Book of International Law, 2016, p. 227. For the definition of “caregivers” as “parent(s), legal guardian(s) or any other person who has the care of the child,” see: CommRC, “General Comment No. 13 on the Right of the Child to Freedom from All Forms of Violence,” CRC/C/GC/13, 18 April 2011, para. 33.