European States’ Obligations to Repatriate the Children Detained in Camps in Northeast Syria
however, has been called into question given the legal obstacles, practical
constraints,236 and privacy concerns. 237 First and crucially, in the vast
majority of cases, DNA testing is simply unnecessary and prolongs an
already lengthy process of repatriation for no valid reason, since European
States already have a clear idea of which of their nationals are on the ground
and where they are located in the camps. 238 Second, the use of DNA testing
is not always conclusive if one or both parents is missing, detained, or no
longer alive.239 Furthermore, a positive DNA result may be insufficient in
some jurisdictions if the marriage of biological parents was not recognized
by the national administration or if the father did not officially recognize the
child.240 Third, in practice, without assistance from European States,
conducting a DNA test in the camps is extremely difficult, if not impossible,
due to the lack of resources, while most European governments remain
reluctant to provide consular assistance or send officials to the camps to
collect DNA samples for legal, political, and safety reasons (see Section
II.E. on Right to Access to Consular Assistance).241
In addition, access to effective remedies relating to the right to nationality
often relies on providing proof of personal identification, a task frequently
hampered by the effects of deprivation of nationality.242 Therefore,
especially in the context of children without documentation of identity,
States must not place unreasonable demands on children and expect them to
236 For an analysis about possible legal obstacles and practical limitations of DNA testing see: Peter Gunn,
“No, Mr Dutton, DNA Testing ISIS Brides Won’t Tell You Who’s an Australian Citizen”, The
Conversation, 24 October 2019.
237 The DNA testing requirement without proper safeguards may violate a child’s right to privacy (Article 16
of CRC). For more information see: UNCCT, “Handbook Children Affected by the Foreign-Fighter
Phenomenon: Ensuring A Child Rights-Based Approach”, 2019, para. 99.
238 Center for Global Policy, “The Children of ISIS Detainees: Europe’s Dilemma”, 2020, p. 12.
239 Laura van Waas, “The Children of Irregular Migrants: A Stateless Generation?”, Netherlands Quarterly of
Human Rights, Volume 25, Issue 3, 2007, pp. 437-458; Letta Tayler, “Western Europe Must Repatriate
Its ISIS Fighters and Families”, Al Jazeera, 21 June 2019.
240 Thomas Renard and Rik Coolsaet, “Children in the Levant: Insights from Belgium on the Dilemmas of
Repatriation and the Challenges of Reintegration”, Security Policy Brief No. 98, Egmont Royal Institute
for International Relations, 11 July 2018, p. 5.
241 Although, note that in December 2020, the Belgian Government has decided to send a team of doctors to
take DNA samples from four children in the al-Hol camp, following a decision of the Brussels Court of
Appeal. This has been interpreted as a possible turning point in the government’s policy on the
repatriation of Belgian children detained in the camps. See: Colin Miller, “Belgium will take DNA from
children in Syrian camp”, Netherland News Live, December 2020; De Morgen, “België gaat DNA
afnemen van kinderen in Syrisch kamp”, 2 January 2021. Also note that Russia for example, has already
collected DNA samples of at least 49 orphan children to establish their nationality in 2019: The Moscow
Times, “Russia Tests ISIS Orphans’ DNA Ahead of Repatriation”, 14 November 2019.
242 Human Rights Council, “Report of the Secretary-General on Arbitrary Deprivation of Nationality”,
A/HRC/10/34, 26 January 2009, para. 59.
44