96 QIL 60 (2019) 69-97
ZOOM IN
tional law surveyed in the course of this work argue in favour of repatriation, as the best option to act in compliance with the existing international framework.
Since a nebulous approach cloaked by (short-term) security concerns
has been prevailing over humanitarian considerations as well as more effective long-term strategies, there is a urgent need to shed light on the
obligations that States owe to their nationals abroad − especially women
and children − held in Iraqi prisons and in the SDF-controlled camps in
Syria. The two different scenarios have been discussed against the backdrop of international humanitarian law, international counter-terrorism
law, the law of diplomatic and consular relations and international human rights law in order to provide an overview of the main legal issues at
stake. To different extents, all the above mentioned fields of international
law contribute to shaping and unfolding the crucial role that States of
nationality are called to play to break the cycle of violence to which
women and children have been exposed first during the Caliphate and
later on after ISIS’ defeat.
The grounds upon which individuals − who most likely have not
planned nor participated in terrorist activities while associated with ISIS
– have been deprived of their liberty as well as the unsafe and appalling
circumstances in which they are held,137 should per se trigger a proactive
reaction by States of nationality as neither the legal basis of detention nor
its conditions appear to be in line with international and domestic standards. Moreover, the risk of indefinite detention of women and children,
the summary trials of FTFs’ family members and more broadly the wide
spectrum of violations of fundamental rights from which they suffer
amount to breaches of the international minimum standards of treatment
of aliens abroad. On the one hand, and especially in relation to Iraq, this
entails that States’ of nationality can – and to some extent are expected
to − exercise diplomatic protection on behalf of their nationals. On the
other hand, the violations perpetrated against women and children raise
some questions about the extraterritorial reach of human rights treaties,
in particular with regard to the territory under the SDF authority in Syria.
Although States of nationality do not bear direct responsibility for those
violations and they do not exercise control over persons or territories,
137
Ní Aoláin (n 38).