Jurisdiction means no less and no more than “authority over” and “control of.”
In relation to [human rights obligations], jurisdiction is neither territorial nor
extra-territorial: it ought to be functional …
The duties assumed [by States] go hand in hand with the duty to perform and observe
them. Jurisdiction arises from the mere fact of having assumed those
obligations and from having the capability to fulfill them (or not fulfill them).’117
118. This way of looking at State responsibility for violations occurring overseas has recently been
affirmed by the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions
in her report on the investigation into the unlawful death of the Saudi journalist Jamal
Khashoggi, which concluded that the State’s responsibility to protect the right to life ‘may be
invoked extra-territorially in circumstances where that particular State has the capacities to
protect the right to life of an individual against an immediate or foreseeable threat to his
or her life.’ 118
As such, European States arguably bear direct responsibility
for those same human rights violations, and are obliged
to bring them to an end by the means available to them –
namely, repatriation so that the women and children detained
can be dealt with according to law and in conditions
which reflect their basic humanity.
119. The results of RSI’s research in North East Syria are clear: the al Hol and Roj camps are the
site of widespread violations of basic human rights, from the right to life and right to freedom
from arbitrary detention to rights of humane and dignified treatment, rights to food, water,
and health, and the rights of children to education. Those violations are occurring outside
European territory, and European military forces are not in direct effective control of the
camps. But European States cannot continue to adopt the position they have done to date,
that this is all better managed off their shores, and watch these violations being perpetrated
in real time, especially when, by virtue of their special relationships with the SDF and AANES,
European States have clear power to control their detained nationals’ enjoyment of rights by
bringing the unlawful conditions of detention in the camps to an end through repatriation.
Those powers are capable of being exercised – indeed repatriations have occurred throughout
recent years on a sporadic basis – and European States’ persistent refusal to repatriate
their nationals en masse directly and reasonably foreseeably prolongs and exacerbates the
human rights violations suffered by women and children in the al Hol and Roj camps. As such,
European States arguably bear direct responsibility for those same human rights violations,
and are obliged to bring them to an end by the means available to them – namely, repatriation
so that the women and children detained can be dealt with according to law and in conditions
which reflect their basic humanity.
44
RIGHTS & SECURITY INTERNATIONAL
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