The Other Victims of ISIL: Obligations of the Netherlands and Other
Actors in Relation to the Children of Dutch Foreign Fighters Who
Have Joined ISIL
Chantal Kuipers
Master Thesis
International and European Law: Public International Law Supervisor: Prof. Y. Donders
7 January 2019
Abstract 4
List of Abbreviations 4
Introduction 5
Chapter one: the International Human Rights Framework 10
1.1 Introduction 10
1.2 The Convention on the Rights of the Child 11
1.3 Extraterritorial Application of the CRC 14
1.4 Human Rights Obligations of the Territorial States 16
1.5 Human Rights Obligations of ISIL 19
1.6 Conclusion 20
Chapter two: Responsibility 22
2.1 Introduction 22
2.2 Responsibility of the Territorial States Through Attribution 22
2.3 Due Diligence of the Territorial States 25
2.5 Non-state Actors and Responsibility 27
2.6 Conclusion 28
Chapter three: Current policies 29
3.1 Introduction 29
3.1 Foreign Fighters Children at the United Nations 29
3.2 Policies of Western Member States Concerning the Children of Foreign Fighters 31
3.3 Conclusion 32
Conclusion 34
Bibliography 36
‘What’s important to remember is that while barriers have been used to divide
us, as humans we are all the same. Some are more privileged than others, but
with that privilege comes a responsibility to do more.’ - Ai WeiWei
1Abstract
As the war against ISIL in Syria and Iraq seems to come to an end, many foreign fighters who joined the terrorist group are either deceased, captured or seeking to return to their country of origin. The latter seem unwilling to repatriate these fighters, including the remaining wives and children. The aim of this research is to address the challenges in protecting the group of children born to at least one Dutch foreign fighter parent and to look at what the international human rights obligations are of the Netherlands towards these children.
In order to do so, the human rights framework is analyzed, particularly The Convention on the Rights of the Child and the Optional Protocol on the Involvement of Children in Armed Conflict. The problem of jurisdiction and the extraterritorial application of these documents will be discussed. In order to establish jurisdiction, the threshold of ‘effective control’ over a territory or person has to have been met. This research will further discuss the obligations of the other relevant actors.
The second chapter will focus on the responsibility of all the actors involved by assessing the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). As responsibility can only follow from a breach of an international obligation, the Netherlands does not seem responsible. It will be assessed whether the responsibility of the territorial states through article 9 and 10 of the ARSIWA can be established. Moreover, the
responsibility through a ‘due diligence’ obligation and the responsibility of the non-state armed groups itself will be examined.
In chapter three the children of foreign fighters at the UN-level will be discussed. The ‘Addenda to the Madrid Principles’ are developed as a practical tool for states to address the problem of foreign fighters. Both these principles and the recent Resolution 2395 recognize that the children should foremost be seen as victims. The principles seem primarily focused on the obligations for the territorial states. In fighting terrorism through countermeasures and implementing the UNSC Resolutions, Western states have adopted several policies
concerning the children of foreign fighters. These policies will be analyzed against a human rights backdrop, which will show that children are primarily still seen as potential threats. On the basis of this research it can be concluded that the Netherlands is not responsible, as they lack effective control and therefore have no jurisdiction in Syria or Iraq over these children. It is argued however that through a third model of jurisdiction the Netherlands solely has the obligation ‘to respect’ the rights of these children and has the obligation of non-refoulement towards separated and unaccompanied children. It still remains a
controversial topic if the non-state armed groups are bound by the obligations in the CRC and OPAC and how these entities can be held responsible for their human rights violations. The territorial states are bound by the provisions in these documents and their responsibility can be established through the ARSIWA.
List of Abbreviations
ARSIWA Articles on Responsibility of States for Internationally Wrongful Acts
CEDAW Convention on the Elimination of All Forms of Discrimination against Women CRC Convention on the Rights of the Child
ILC International Law Commission ISIL Islamic State of Iraq and Levant ISIS Islamic State of Iraq and Syria
OPAC Optional Protocol to the Convention on the Rights
of the Child on the Involvement of Children in Armed Conflict NSAG Non-State Armed Group
Res Resolution
SDF Syrian Democratic Forces
UN United Nations
UNCESCR United Nations Committee on Economic, Social and Cultural rights UNCRC United Nations Committee on the Rights of the Child
UNCTC United Nations Counter-Terrorism Committee UNGA United Nations General Assembly
UNHRC United Nations Human Rights Council
UNICRI United Nations Interregional Crime and Justice Research Institute UNSC United Nations Security Council
Introduction
The Caliphate was born in the summer of 2014, when Abu Bakr al-Bahdadi proclaimed himself leader of ISIL after capturing several Iraqi cities. In the Caliphate’s peak, the terrorist group ruled over a population of seven or eight million people, covering both territory in Syria and Iraq.2 ISIL grabs the world’s attention because of their public executions and
propaganda, including the use of children for suicide attacks and fighting. Since the United States invaded Iraq in 2003 and the civil war started in Syria in 2011, foreign fighters are part of the conflict.3 Foreign terrorist fighters are defined in resolution 2178 of the United Nations
Security Council as ’individuals who travel to a state other than their state 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.’4 This research will refer to these individuals as foreign fighters.
Although the phenomenon of foreign fighters is not new, in recent years the numbers have increased extremely as a result of the Syria and Iraq conflict. Fighters from all over the world have joined several different groups on different sides of the conflict. Motivations for joining are mostly a combination of several push and pull factors and are highly personal and context specific.5 Fighters are recruited by the terrorist organization through social media and other
online platforms. The Radicalisation Awareness Network, an organisation set up by the European Commission, reported a number of 42.000 foreign fighters from over 120 countries joining the conflict between 2011 and 2016.6 Most come from countries in the Middle East,
but about 5000 of them are from Western Europe.7 Looking at the Netherlands, there are an
estimated number of 310 persons who left to Syria or Iraq.8 Belgium has the largest
2 Jason Burke, ‘Rise and Fall of Isis: Its Dream of a Caliphate is Over, So What Now?’ The Guardian (London, 21 october 2017) < https://www.theguardian.com/world/2017/oct/21/isis-caliphate-islamic-state-raqqa-iraq-islamist> accessed on 3 october 2018
3 Andrea De Guttry, Francesca Capone and Christophe Paulussen, Foreign Fighters under International Law and Beyond (T.M.C. Asser Press 2016) p. 2
4 UNSC Res 2178 (24 September 2014) UN Doc S/RES/2178 para. 6 (a)
5 Edwin Bakker & Roel de Bont, ‘Belgian and Dutch Jihadist Foreign Fighters (2012–2015): Characteristics, Motivations, and Roles in the War in Syria and Iraq’ [2015] Small Wars & Insurgencies, p. 837
6 RAN Centre of Excellence, ‘RAN Manual Responses to Returnees: Foreign Terrorist Fighters and Their Families’ (2017) p. 15 available at: <
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/ran_br_a4_m10_en.pdf> accessed on 3 October 2018
7 The Soufan Group, ‘Foreign Fighters: An Updated Assessment of the Flow of Foreign Fighters into Syria and Iraq’ (2015) p. 12-13 available at: <
http://www.soufangroup.com/wp-content/uploads/2015/12/TSG_ForeignFightersUpdate1.pdf> accessed on 3 October 2018
8 AIVD, ‘Uitreizigers en terugkeerders’ (1 December 2018) available at:
<https://www.aivd.nl/onderwerpen/terrorisme/dreiging/uitreizigers-terugkeerders-en-thuisblijvers> accessed on 2 December 2018
percentage of its population leave for the battlefields compared to other Western countries. It is number one of countries in Western Europe: it has had 388 of its nationals leave to join the battlefields in Syria and Iraq.9
In ISIL’s propaganda, the caliphate is glorified as a place where all Muslims are welcome to reside peaceably and therefore many fighters including their family traveled to Syria and Iraq in hope of building a new society. This new world would be built on a ‘fundamentalist
interpretation of their religion’, the Islam.10 ISIL’s ideology can be defined as a mix of the
Salafi and Jihadist movements where seventh-century rules and laws are incorporated into the twenty-first century.11 With a strict literal interpretation of the Quran, the group uses jihad to
implement these rules as they belief it is their ‘fundamental religious obligation’ to do so.12
In their propaganda, ISIL paints a picture wherein the caliphate is a place full of new homes, food and medical care.13 However, newcomers are faced with a different reality. Excessive
violence is used daily by the terrorist group to all outsiders (infidels) and there is a constant threat of bombs, executions, assault, rape and enslavement.14 While men are used for the
military, women are expected to bear as many children as possible, raising a new generation of fighters and mothers of ISIL. Life under ISIL is traumatic for these children as they are forced to watch public executions, stonings and crucifications. Being indoctrinated from an early age, children are taught how to count by using photos of bombs, pistols and bullets.15
Boys receive military training from the age of nine, while girls learn how to become the best wife to their husbands. The girls have to wear a hijab and can be forced to marry from the age of nine.16 Even younger children are used in ISIL’s propaganda, which shows children
executing prisoners.
As of 2018, the so-called Caliphate has diminished to its last 200 square miles, which is only one percent of the territory ISIL used to control. Many countries are faced with returning
9 Bakker & Bont (2015) p. 837-838
10 General Intelligence and Security Service, ‘Life with ISIS: the Myth Unravelled’ (18 January 2016) p. 3-4.
11 Fawaz A. Gerges, ISIS: a History (Princeton University Press 2016) p. 23-26
12 Bernard Haykel, 'ISIS and al-Qaeda - What Are They Thinking? Understanding the Adversary' [2016] 668 (1) The Annals Of The American Academy, p. 71
13 General Intelligence and Security Service, ‘Life with ISIS: the Myth Unravelled’ (18 January 2016) p. 3
14 Ibid p. 5
15 ‘Lion Cubs of ISIL: Children of the Caliphate’, Al Jazeera (25 october 2017) available at < https://www.aljazeera.com/programmes/witness/2017/10/lion-cubs-isil-children-caliphate-171023104745430.html> accessed on 3 October 2018)
foreign fighters.17 Returnees can return for many reasons; some return because they are
forced out by particular circumstances or under pressure of their families, while others do not stay longer because they disagree with (some of) ISIL’s methods.18 Of the 5000 fighters from
Western Europe that have joined the conflict, an estimated 30% have returned home.19
After the US-led coalition in collaboration with the Kurdish forces re-took Mosul, marking the end of the Caliphate, some of the wives and children of ISIL were put in displacement camps or in prison. Many male fighters are either deceased or captured and put in prison. Several different groups are in control of these camps and are, according to Human Rights Watch, unlawfully restricting the movement of people, as they are not allowed to leave the camp and are treated as prisoners.20 The Dutch Ombudsman for Children also stated that the
women and children are not free to leave the camp, or have the money, papers or possibility to do so.21
According to de Volkskrant, a Dutch newspaper, there are sixteen Dutch children in Al Roj, a camp in northeastern Syria.22 The children in Al Roj are only a small fraction of the total of
Dutch children in Iraq or Syria, of whose location is unknown. According to the Dutch intelligence service, the ‘Nationaal Coördinator Terrorismebestrijding en Veiligheid (NCTV) there are approximately 175 children in Iraq or Syria of whom one or both parents possess the Dutch nationality. Most of them are born in the conflict zone and are under four years old.23
Ten percent of these children are nine years or older and therefore could have received military training.24
17 Rukmini Callimachi, ‘Fight to Retake Last ISIS Territory Begins’ The New York Times (New York, 11 September 2018) available at < https://www.nytimes.com/2018/09/11/world/middleeast/isis-syria.html> accessed on 3 October 2018
18 European Parliamentary Research Service ‘The Return of Foreign Fighters to EU Soil’ (2018) p. 38
19 RAN Centre of Excellence (2017) p. 15
20 Human Rights Watch, ‘Syria: Thousands of Displaced Confined to Camps: Areas taken from ISIS Restricting Free Movement’ (1st of August 2018) available at < https://www.hrw.org/news/2018/08/01/syria-thousands-displaced-confined-camps> accessed on 3 October 2018
21 Margrite Kalverboer, ‘Position Paper: Nederlandse Kinderen in Kampen in Syrië: De Overheid Moet Zijn Verantwoordelijkheid Nemen Deze Kinderen te Beschermen’ (19 April 2018) available at:
https://www.dekinderombudsman.nl/ul/cms/fck-uploaded/PositionpaperkindereninkampeninSyri.pdf accessed on 3 October 2018
22 Hassan Bahara, ‘Komen de IS-kinderen ooit nog terug?’ De Volkskrant (Amsterdam, 6 November 2018) available at: <
https://www.volkskrant.nl/nieuws-achtergrond/komen-de-is-kinderen-ooit-nog-terug-~b927dd12/> accessed on 5 October 2018
23 Nationaal Coördinator Terrorismebestrijding en Veiligheid ‘Dreigingsbeeld Terrorisme Nederland 48’ (10th of August 2018) available at: <https://www.nctv.nl/binaries/DTN48%2C%20samenvatting_tcm31-352621.pdf> accessed on 5 October 2018 p. 5
24 AIVD, ‘Uitreizigers en terugkeerders’ (1 December 2018) available at:
<https://www.aivd.nl/onderwerpen/terrorisme/dreiging/uitreizigers-terugkeerders-en-thuisblijvers> accessed on 2 December 2018
Unwanted back home as many home countries refuse to repatriate them, they are stuck in a legal void wherein it is uncertain who is responsible for these children. It does not seem to be clear what the home states’ obligations are under international law for the children of Dutch foreign fighters. Many states do not actively repatriate both parents or children. The current policy in the Netherlands is that their nationals have to reach the embassy or the consulate in order to get protection.25 Other countries have a more active approach; Russia has actively
repatriated 35 women and children back and Indonesia a family of about 15.26 This legal
uncertainty of who is responsible for these children will make them an even more vulnerable group. If not repatriated, it is likely that the children will be exposed to ISIL indoctrination and violence again. Several different sources state that the Kurdish armed groups controlling the camps exchange children with their mums back to ISIS for Kurdish fighters.27 Moreover,
it not implausible that ISIS will at one point in the future gain power again. As The Guardian, explains: ‘the project of constructing an Islamic state has been defeated, but the organisation has not.’28
This thesis will try to answer the following question:
‘What are the obligations of the Netherlands and other actors according to international human rights law towards the children of foreign fighters who are still in Syria and Iraq?’
This research will try to address the legal challenges in establishing the responsibility of other actors. To narrow the scope of this research, this thesis will only focus on children of whom the Dutch nationality is established. Research methods will include an examination of the current legal framework through the Convention on the Rights of the Child (CRC) and its Optional Protocol on the Involvement of Children in Armed Conflict (OPAC). To answer the
25 Redactie Volkskrant, ‘Kabinet wil kinderen van Syriegangers toch niet ophalen’ De Volkskrant (Amsterdam, 16 May 2018) available at: <
https://www.volkskrant.nl/nieuws-achtergrond/kabinet-wil-kinderen-van-syriegangers-toch-niet-ophalen~bfc50110/> accessed on 5 October 2018
26 Ben Hubbard, ‘Wives and Children of ISIS: Warehoused in Syria, Unwanted Back Home’ The New York Times (New York, 4 July 2018) available at: < https://www.nytimes.com/2018/07/04/world/middleeast/islamic- state-families-syria.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news> accessed on 5 October 2018
27 In the Dutch documentary ‘De verloren Kinderen van het Kalifaat’ from the journalist Sinan Can a Dutch wife of a foreign fighter in a displacement camp states that a total of 28 women were exchanged. ‘De verloren Kinderen van het Kalifaat’, Jochem Pinxteren, available at
<https://www.2doc.nl/documentaires/series/2doc/2018/maart/de-verloren-kinderen-van-het-kalifaat.html> This however is unconformed and denied by the Kurdish group, Eg Wladimir van Wilgenburg, ‘SDF denies exchanging ISIS families for Syrian Kurdish prisoners’ The Defense Post (14 June 2018) available at <https://thedefensepost.com/2018/06/14/sdf-isis-wives-exchange-syria-kurdish-prisoners/> accessed on 3 October 2018
28 Jason Burke, ‘Rise and Fall of Isis: Its Dream of a Caliphate is Over, So What Now?’ The Guardian (London, 21 october 2017) available at < https://www.theguardian.com/world/2017/oct/21/isis-caliphate-islamic-state-raqqa-iraq-islamist> accessed on 3 October 2018
research question, the following sub-questions are relevant and will be discussed separately in each chapter.
This study will first start by looking at the existing international human rights framework, mainly the CRC, the OPAC and several non-binding legal documents concerning child soldiers. Moreover, the problem of jurisdiction will be addressed in this chapter. This will be examined by looking at the extraterritoriality of the CRC and if the Netherlands therefore has human rights obligations in Syria and Iraq. Thereafter, the human rights obligations of the other actors will be discussed.
The second chapter is about establishing responsibility through the Articles on Responsibility of States for Internationally Wrongful Acts by the International Law Commission. This includes the responsibility of the Netherlands, but also that of the territorial states and non-state actors.
Chapter three will be looking at the current approaches through a child rights perspective. The children of foreign fighters at the UN-level will be discussed, mainly through looking at Resolutions of the Security Council and the ‘Addenda to the Madrid Principles.’ Moreover, the different policies of Member States will be assessed against a human rights backdrop.
Chapter one: the International Human Rights Framework
1.1 IntroductionWhen looking at the protection of children of foreign fighters, it is important to look at what norms international legal instruments have laid out for the Netherlands. From these norms
different obligations can follow, both positive and negative. In international human rights law a threefold obligation for states to ‘respect, protect and fulfill’ human rights was developed29
and adopted in several human rights documents.30 The obligation to respect contains a
negative obligation, meaning that the state has to refrain from interference in the enjoyment of human rights. The obligation to protect requires states to actively prevent violations of human rights by third parties within their jurisdiction.31 Under the obligation to fulfill, states
have to take positive action to facilitate, promote and provide to ensure the enjoyment of rights.32
Although there are different and intertwined legal frameworks relevant when looking at the children of foreign fighters who are still in Syria or Iraq, only that of international human rights law will be discussed. In order to do so, this present chapter will discuss the relevant provisions from the Convention on the Rights of the Child and its Optional Protocol concerning the involvement of children in armed conflict first. Second, the problem of jurisdiction and the extraterritoriality of the human rights obligations will be examined. The obligations of the non-state armed groups and the territorial states will be discussed lastly. 1.2 The Convention on the Rights of the Child
The first human rights instrument specifically designed for children was The Convention on the Rights of the Child, which was adopted by the UN General Assembly on the 20th of
November, 1989. It has been ratified by 196 states, with the exception of the United States of America, making it the most widely ratified international human rights treaty in history. The Netherlands has ratified the convention in 1995 and is therefore bound by the articles in the CRC. It contains no derogation clause, which means that States parties have to fulfill their obligations even in times of emergency. However, there is a possibility for States to make reservations which may modify their obligations.33 The Netherlands has not made any
29 UNCESCR ‘Report by A. Eide on The Right to Adequate Food as a Human Right’ (7 July 1987) UN Doc E/CN.4/Sub.2/1987/23
30 Eg UNCESCR ‘General Comment 12: The Right to Adequate Food’ (12 May 1999) UN Doc E/C.12/1999/5 paras. 14-20 and UNCRC ‘General comment No. 16: On State Obligations Regarding the Impact of the
Business Sector on Children's Rights’ (17 April 2013) CRC/C/GC/1 paras. 26-31
31 UN Committee on the Rights of the Child ‘General comment No. 16: On State Obligations Regarding the
Impact of the Business Sector on Children's Rights’ (17 April 2013) UN Doc CRC/C/GC/1 para. 28. This is most important when looking at the business sector as the ‘third party.’ States must take ‘all necessary, appropriate and reasonable measures to prevent business enterprises from causing or contributing to abuses of children’s rights.’
32 Eg UNCRC ‘General comment No. 15 On the Right of the Child to the Enjoyment of the Highest Attainable Standard of Health (art. 24)’ (17 April 2013) UN Doc CRC/C/GC/15 para. 72
33 Convention on the Rights of the Child (adopted 20 November 1989 UNGA Res 44/25, entered into force 2 September 1990) (hereinafter: CRC) Article 51
relevant reservations for this study.34 Moreover, the CRC contains several limitation clauses,
which can be invoked by states if certain conditions are met.35
The Committee on the Rights of the Child is established to monitor the implementation by the States parties of the CRC and the OPAC.36 After States parties submit their regular
reports, the Committee examines them and writes its recommendations in the so-called ‘concluding observations.’37 Moreover, it can write its interpretation of certain provisions in
the General Comments. The CRC consists of 54 articles including four general principles, which are laid down in articles 2 (non-discrimination), 3 (best interest of the child), 6 (the right to life, survival and development) and 12 (respect for the views of the child). These general principles are meant as a guide for interpreting all the other rights in the Convention. Several of the relevant provisions for the children will be discussed below.
Article 2 CRC entails the fundamental obligation of states to respect and ensure the rights in the convention without discrimination of any kind. Paragraph two of the article addresses that no child can be discriminated or punished on the basis of ‘the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.’ This article imposes a negative obligation as to where a state has to refrain from actions that are
discriminatory. Moreover, it contains an obligation to protect and therefore imposes a duty to prevent discrimination by non-state actors.38 The Committee elaborated further that: ‘this
non-discrimination obligation requires states actively to identify individual children and groups of children the recognition and realization of whose rights may demand special measures.’39 States should actively take action to diminish this discrimination by adopting
special measures of protection.40
Article 3 CRC consists of the ‘best interest of the child’ principle. According to this article the interest of the child should be the primary consideration in all actions concerning
34 CRC status of ratification and reservations available at: <https://treaties.un.org/pages/ViewDetails.aspx? src=IND&mtdsg_no=IV-11&chapter=4&lang=en#EndDec> accessed on 3 December 2018
35 Eg article 13 CRC. The freedom of expression may be subject to restrictions if they are provided by law and are necessary.
36 Article 43 CRC
37 Article 45 (d) CRC
38 Daniel Moeckli, ‘Equality and Non-Discrimination’ in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds), International Human Rights Law (2nd edn, Oxford University Press 2014) p.170-171
39 UNCRC ‘General Comment no. 5 (2003): General measures of Implementation of the Convention on the Rights of the Child’ (27 November 2003) CRC/GC/2003/5 p.4 para. 12
children. ‘In all actions’ includes ‘failure to take action and omissions.’41 This concept
appears in several other provisions of the CRC and is even included in the CEDAW.42 In
General Comment 14 the Committee explained that article 3 establishes three types of obligations for states.43 Particularly relevant is sub b, as all ‘judicial and administrative
decisions as well as policies and legislation concerning children’ should demonstrate that the best interest principle has been a primary consideration. The best interest should be defined by looking at the specific situation of each child individually.44 Elements that have to be
taken into account are the child’s view and identity, preservation of the family environment, care protection and safety and the right to health and education.45 Although authorities have
to weigh all possible conflicting interests concerned, the interest of the child should be of primary consideration and is thus of the highest priority.46 In case of the children of foreign
fighters, the interests of the children, parents and the states involved should be taken into consideration.
According to article 4 of the CRC, States Parties have certain obligations for the
implementation of the rights recognized in the convention. Under this article, States parties ‘shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.’ Towards economic, social and cultural rights states have a different obligation, as they have to take ‘such measures to the maximum extent of their available resources.’47 Because of the progressive
nature of these rights it is difficult to establish when a state is violating the ESC rights. Governments have to ensure that a minimum level is being met which has to be determined with each right specifically. Although the ESC Committee is not elaborating on the
interpretation of the CRC, the wording used in the ICESCR is similar to that of the CRC and therefore the material of the Committee can be used analogously. According to this
Committee, there is an immediate obligation ‘to take steps’ within a reasonably short
41 UN Committee on the Rights of the Child ‘General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1)’ (29 May 2013) CRC /C/GC/14 para. 17
42 Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) Article 5 (b)
43 UN Committee on the Rights of the Child ‘General comment No. 14’ (2013) para. 14
44 Ibid para. 32
45 Ibid para. 52 to 79
46 Ibid para. 39
timeframe.48 Moreover, article four highlights the need for international co-operation in
implementing the convention.
In its General Comment on the ‘Treatment of Unaccompanied and Separated Children Outside Their Country of Origin’, the CRC Committee established that obligations stemming from 38 CRC together with articles 3 and 4 of the OPAC have extraterritorial effect.49 This
means states have to refrain from ‘returning a child in any manner whatsoever to the borders of a State where there is a real risk of underage recruitment, including [...] a real risk of direct or indirect participation in hostilities.’50 The Netherlands therefore has the obligation to not
send any child back to Syria and Iraq that is separated from their parents, as participation and under-age recruitment ‘entails a high risk of irreparable harm involving fundamental human rights.’51
1.3 Extraterritorial Application of the CRC
The CRC requires States Parties to respect and ensure the rights to ‘each child within their jurisdiction.’52 Traditionally, from a state-centric view, states are only responsible for
individuals in their own territory.The language of the CRC however expresses no territorial limit and therefore states may have the duty to protect human rights outside their territory. The Committee on the Rights of the Child affirmed that the convention applies beyond the territory of a State party.53 By invading a country, the occupying State has to extend its
human rights obligations to the territory that is occupied. Jurisdiction is therefore established when a State exercises ‘effective control’ over an area outside its national territory. This so-called spatial model standard was set in the Loizidou case and seems to be adopted and adjusted by several other human rights bodies, including the CRC Committee.54 When
looking at the effective control criteria in the case of Dutch children of foreign fighters, it seems that the Netherlands lacks effective control over territory in Syria and Iraq. As several different armed groups are in control of different parts of both countries, there is no state control of the Netherlands over the territory where the children are located. It therefore seems
48 UNCESCR ‘General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, para. 1, of the Covenant)’(14 December 1990) E/1991/23 para. 2
49 Committee on the Rights of the Child ‘General comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside their Country of Origin’ (1 September 2005) (CRC/GC/2005/6) para. 28
50 Ibid
51 Ibid
52 Article 2 (1) CRC
53 UN Committee on the Rights of the Child ‘Concluding Observations of Israel’ (4 July 2013) UN Doc CRC/C/15/Add.195 para. 55-57 and International Court of Justice (Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory) [9 July 2004] para. 113
that the Netherlands does not have jurisdiction in these camps or anywhere else in Syria or Iraq through the spatial model of jurisdiction.
Besides the spatial model of extraterritorial application of human rights treaties, the ‘personal model’ was developed, mostly by the HRC. The HRC first introduced this model in the case of Lopez-Burgos, where it held that it is not ‘the place where the violation occurred, but rather the relationship between the individual and the State in relation to a violation of any of the rights set forth in the Covenant.’55 The principle is solidified by the HRC by including it
in its General Comment 31, stating that the rights laid down in the ICCPR apply to ‘anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.’56
In relation to the children of foreign fighters, the Netherlands also lacks control over the individuals. The children who are in displacement camps are under the control of the non-state armed groups. The personal model can therefore not be used to establish jurisdiction for the Netherlands.
A third model of jurisdiction is developed by the scholar Marko Milanovic. In his book57 he
proposes a model that distinguishes between positive and negative obligations. This means that in his view, the fact that a state has ‘effective overall control’ over areas would mean it automatically has positive obligations. This thus would include the obligation to ensure and secure human rights. The negative obligations, on the other hand, would have no territorial limit and therefore no jurisdictional threshold. The obligation to respect would therefore have a broader, unlimited scope.58 In relation to the children of foreign fighters, the Netherlands
would, according to this model, have the obligation to refrain from human rights violations. It therefore has to respect the human rights of the foreign fighters children, even outside its borders.
1.4 Human Rights Obligations of the Territorial States
As the violations of the children’s of foreign fighters occur in Syria and Iraq, these territorial states have to ‘respect and ensure’ the rights in the convention.59 As all the rights laid down in
55 UNHRC, López Burgos v. Uruguay (6 June 1979) UN Doc A/36/40 para. 12.2
56 UNHRC General Comment 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (29 March 2004) UN Doc CCPR/C/21/Rev.1/Add. 1326 para. 10
57 Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (1st edn, Oxford University Press 2011)
the CRC are applicable to ‘each child within their jurisdiction‘60, the enjoyment of these
rights is not limited to nationals, but also applies to the children of foreign fighters.61 The
CRC does not contain a derogation clause, which means Iraq and Syria cannot derogate from the provisions, even in times of armed conflict.
The UN Secretary-General reported that all parties have violated the fundamental rights of children, including Syria and Iraq.62 Children and their mothers are subject to prosecution and
long sentences because of their link to Islamic State fighters in Iraq. This vulnerable group is reported to be subjected to torture, ill-treatment and rape and other forms of violence while detained.63 With hearings of 10-minutes, women are sentenced to death or life in prison,
without access to a lawyer.64 Human Rights Watch reported that children from the age of nine
are prosecuted by the Iraqi justice system and that sentences for membership can be three to five years. The CRC Committee has recommended an absolute minimum of 12 years for children to be held criminally responsible.65 In Iraq, foreign children can be sentenced
between six months to a year for illegal entry.66 This is in violation of article 37 CRC, which
states that detention of children should only be used as a last resort and for the shortest amount of time.67 Paragraph d of this article states that every child shall have the right to legal
assistance, which the children do not have access to. Moreover, children cannot be detained based solely on their family’s affiliation with ISIL. This is in violation of article 2 CRC, which prohibits all forms of discrimination and punishment on the basis of the child’s parents beliefs, activities or status.68
59 Both countries have ratified the CRC. Both have made reservations to article 14 CRC. Status of ratification and reservations available at: < https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&lang=en#EndDec> accessed on 3 December 2018
60 Article 2 CRC
61 UNHRC ‘General Comment 31’ (2004) para. 10
62 UNSC ‘Report of the Secretary-General: Children and Armed Conflict in the Syrian Arab Republic’ (30 October 2018) S/2018/969 p. 1
63 UNGA ‘Report of the Secretary-General: Children in Armed Conflict’ (16 May 2018) UN Doc A/72/865– S/2018/465 para 186
64 Human Rights Watch, ‘Iraq: Change Approach to Foreign Women, Children in ISIS-Linked Trials’ (21 June 2018) available at: < https://www.hrw.org/news/2018/06/21/iraq-change-approach-foreign-women-children-isis-linked-trials> accessed on 10 November 2018
65 UN Committee on the Rights of the Child ‘General comment No. 10 (2007): Children's Rights in Juvenile Justice’ (25 April 2007) UN Doc CRC/C/GC/10 para. 32
66 Human Rights Watch, ‘Iraq: Change Approach to Foreign Women, Children in ISIS-Linked Trials’ (21 June 2018) available at: < https://www.hrw.org/news/2018/06/21/iraq-change-approach-foreign-women-children-isis-linked-trials> accessed on 10 November 2018
67 Other international standards for juvenile justice also have to be respected. Eg UNGA Res 45/113 ‘United Nations Rules for the Protection of Juveniles Deprived of their Liberty’ (14 December 1990) UN Doc A/RES/45/113
Although most Dutch children of foreign fighters left in Syria or Iraq are below the age of four, the provisions concerning child soldiers are still relevant. If not repatriated, it is likely that the children will be exposed to ISIS indoctrination and violence again. Several different sources state that the Kurdish armed groups controlling the displacement camps exchange children with their mums back to ISIS for Kurdish fighters.69
This makes article 38 of the CRC particularly relevant, which deals with the issue of child recruitment. The provision describes that States parties are required to ‘take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.’ However, this article does not provide adequate protection for children of foreign fighters for several reasons. Firstly, children between fifteen and eighteen are not protected by article 38, regardless of the fact that article 1 of the convention defines a ‘child’ as every human being below the age of eighteen. Secondly, it only places limited responsibility on states to prevent the recruitment of child soldiers by using the wording of ‘feasible measures.’70 Lastly, by only including children who take direct part in hostilities,
article 38 leaves out children who play subsidiary roles.71
The Optional Protocol on the Involvement of Children in Armed Conflict has partly rectified some of these deficiencies in the CRC. Through its first article, it overcomes the ‘loophole of non-protection’ of article 38 CRC and covers the children between fifteen and eighteen. States have to ensure that children do not take direct part in hostilities. The article however still uses the wording ‘feasible measures’ and only protects children taking ‘direct’ part in hostilities. Article 2 of the OPAC requires States Parties to ‘ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces.’ The next article concerns voluntary recruitment of persons who are under 18 years old, obligating States parties to raise the minimum age for recruitment into their national armed forces. Paragraph two of article 4 OPAC obliges States Parties to ‘take all feasible measures’ to
69 In the Dutch documentary ‘De verloren Kinderen van het Kalifaat’ from the journalist Sinan Can a Dutch wife of a foreign fighter in a displacement camp states that a total of 28 women were exchanged. ‘De verloren Kinderen van het Kalifaat’, Jochem Pinxteren, available at
<https://www.2doc.nl/documentaires/series/2doc/2018/maart/de-verloren-kinderen-van-het-kalifaat.html> This however is unconformed and denied by the Kurdish group, Eg Wladimir van Wilgenburg, ‘SDF denies exchanging ISIS families for Syrian Kurdish prisoners’ The Defense Post (14 June 2018) available at <https://thedefensepost.com/2018/06/14/sdf-isis-wives-exchange-syria-kurdish-prisoners/> accessed on 3 October 2018
70 Francesca Capone ‘Child Soldiers: The Expanding Practice of Minors Recruited to Become Foreign Fighters’ in (eds) Andrea de Guttry, Francesca Capone and Christophe Paulussen, Foreign Fighters under International Law and Beyond (T.M.C. Asser Press 2016) p. 193
prevent the use of child soldiers by armed groups. In combination with article 7 OPAC this could mean that different states need to cooperate in order to implement the protocol.72
The Paris Principles, adopted by the UNGA Resolution 48/134 in 199373, altered the
definition of a child soldier: ‘a child associated with an armed force or armed group.’74
According to these non-binding principles, child soldiers also include those children who do not participate in the hostilities directly and therefore corrects the earlier mentioned problem of the OPAC. These principles, as well as the Machel Report75 and Cape Town Principles76,
have a strict 18 approach to recruitment of children. Both documents recommend Member States to take action in preventing the future recruitment of children and emphasize that the children should primarily be seen as victims.
It seems that binding documents like the CRC and OPAC have not effectively protected child soldiers, as they do not consider children who play subsidiary roles. The deficiencies in the framework of protecting these children are particularly relevant when looking at the children of Dutch foreign fighters, who are mostly under the age of four. These children are not participating directly in hostilities and therefore cannot be protected by article 38 of the CRC. Moreover, the OPAC also offers limited protection as it still requires that children take direct part in the hostilities. Syria and Iraq have both not ratified the Paris Commitments and the Paris Principles and therefore are not bound by the provisions in this document. However, they have ratified the OPAC and stated in their reservations that commit to a strict 18 approach to recruitment of children in their national forces.77 They are therefore obliged to
‘take all feasible measures’ to prevent (re)recruitment by ISIL of children under 1878 and
should not recruit children into their own armed forces. The duty to take action in the
recovery and social integration of children who are victims are laid down in articles 39 of the CRC and article 6 (3) of the OPAC. The territorial states should therefore take action in case
72 Article 7 OPAC: ‘States Parties shall cooperate in the implementation of the present Protocol, including in the prevention of any activity contrary thereto [...]’’
73 UNICEF, The Paris Principles. Principles and Guidelines on Children Associated With Armed Forces or Armed Groups, February 2007.
These principles were adopted by the UNHRC by Resolution 1992/54 in 1992 and by the UNGA in Resolution 48/134 in 1993 and are a complementary document to the Paris Commitments
74 UNICEF, The Paris Principles 2007 para. 2.1
75 UNGA ‘Note of the Secretary-General Graça Machel: Impact of Armed Conflict on Children’ (26 August 1996) UN Doc A/51/306
76 UNICEF ‘Cape Town Principles and Best Practices’ (27-30 April 1997)
77 OPAC status of ratification and reservations available at <https://treaties.un.org/Pages/ViewDetails.aspx? src=IND&mtdsg_no=IV-11-b&chapter=4&clang=_en#EndDec>
of the children of foreign fighters, because victims include those that are ‘involved in the system of juvenile justice’ and those that are associated with an armed group, as they could have been victims of violence.79
1.5 Human Rights Obligations of ISIL
Traditionally, international human rights law defines state obligations and therefore leaves out obligations for non-state actors. The applicability of the human rights norms to non-state actors remains controversial. Remarkable therefore is article 4 (1) of the OPAC, which directly addresses armed groups. The provision prohibits armed groups to recruit or use persons under the age of 18 years in hostilities. This is a stricter standard than the voluntary recruitment standard for states where it allows them to recruit child soldiers.80 If article 4 (1)
OPAC creates a binding obligation for armed groups, is still a controversial topic, which already started at the drafting process.81 The wording of article 4(1) OPAC ‘should not’
instead of ‘shall not’ could imply that it is merely a ‘soft moral obligation.’82 Clapham
contrarily suggests that the wording ‘under any circumstances’ indicates that the drafters intended to create ‘the strongest kind of international legal obligation.’83 If ISIL is bound by
the article seems to be confirmed in the report of the UN Commission of Inquiry on the Syrian Arab Republic in 2013. It stated that ‘anti-Government armed groups’ violated the OPAC by using children under the age of 15 in hostilities.84 This seems to be an approach
that fits the changing world wherein NSAGs are increasingly powerful.85 This is also
reflected in the practice of the UNSC and UNGA.86 Whether a non-state armed group has
human rights obligations is, according to Clapham, dependent on their ‘capacity, context, and commitments.’87 The HRC also confirmed that ‘non-state groups that exercise de facto
79 UNICEF Implementation Handbook (2017) p. 590
80 Article 2 OPAC
81 Report of the Secretary-General ‘Comments on the Report of the Working Group’ (23 March 1998) UN Doc E/CN.4/1998/102
82 Cedric Ryngaert, ‘Human Rights Obligations of Armed Groups’ [2008] 41 (1-2) Revue Belge de Droit International p. 364-365
83 Andrew Clapham, Human Rights Obligations of Non-state actors (Oxford University Press 2006) p. 75
84 UNHRC Report of the Independent International Commission of Inquiry on the Syrian Arab Republic (5 February 2013) p. 2
85 Andrew Clapham, ‘Non-State Actors’ in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds), International Human Rights Law (2nd edn, Oxford University Press 2014) p.547
86 Jessica S. Burniske, Naz. K. Modirzadeh and Dustan A. Lewis, ‘Armed Non-State Actors and International Human Rights Law: an Analysis of the Practice of the U.N. Security Council and U.N. General Assembly’ (Harvard Law School Program on International Law and Armed Conflict June 2017) p. 27, available at < http://blogs.harvard.edu/pilac/files/2017/06/HLS-PILAC%E2%80%94ANSAs-and-IHRL%E2%80%94June-2017.pdf>
87Andrew Clapham, ‘Human Rights Obligations for Non-State-Actors: Where are we now?’ in Fannie Lafontaine and Francois Larocque (eds) Doing Peace the Rights Way: Essays in International Law and
control over territory must respect human rights in their activities.’88 In relation to ISIL, this
threshold has been met, especially in their peak in 2014 and 2015, where they controlled large parts of the territory both in Syria89 and Iraq.90 It could therefore be concluded that ISIL
is bound by human rights law, although not party to the CRC and the OPAC. However, since ISIL has (almost) ceased to exist, it is questionable if the NSAG can be held responsible for its actions. This will be discussed in the next chapter.
1.6 Conclusion
The international human rights framework for the children of foreign fighters provides several relevant provisions. Syria, Iraq and the Netherlands have ratified both the CRC and the OPAC.91 The obligations deriving from this framework are mainly obligations owed to
the territorial states, as the Netherlands does not have jurisdiction in Syria or Iraq. The Netherlands seems to lack ‘effective control’ over both the area or persons and therefore does not have obligations towards these children. It is argued that through a third model of
extraterritorial application developed by the scholar Marko Milanovic, the Netherlands could have the obligation to respect the rights in the CRC, even in the territory of the other states.92
The Netherlands only has the obligation of non-refoulement towards children that are unaccompanied or separated with their parents, which is an obligation that arises from its own territory. The binding human rights documents do not seem to adequately protect the foreign fighters children. These rules concerning child soldiers require the territorial states to ‘take all feasible measures’ to prevent (re)recruitment and only protect children who
participate directly in the hostilities. Moreover, states have to take action in the recovery of the children of foreign fighters, according to article 39 of the CRC and article 6 (3) of the OPAC. This chapter also discusses the controversial topic if human rights obligations are binding for non-state armed groups. ISIL could be said to be bound by the provisions in the CRC and OPAC, as it has met the criteria of having effective control. If it can be held responsible for its actions, will be discussed in the next chapter of this research.
Relations in Honour of Louise Arbour (Intersentia, expected publication 14th January 2019) p.1
88 UNHRC The International Commission of Inquiry on the Central African Republic—Final Report (22 December 2014) S/2014/928 para. 41
89 UNHRC ‘Report by Special Rapporteur Ben Emmerson on the Protection of Human Rights While Countering Terrorism’ (16 June 2015) A/HRC/29/51 paras 30–31
90 BBC News ‘Islamic State and the crisis in Iraq and Syria in maps’ (28 March 2018) available at <https://www.bbc.com/news/world-middle-east-27838034> accessed on 9 December 2018
91OPAC status of ratification and reservations available at <https://treaties.un.org/pages/ViewDetails.aspx? src=TREATY&mtdsg_no=IV-11-b&chapter=4&clang=_en#EndDec>
Chapter two: Responsibility
2.1 IntroductionIn the previous chapter the international obligations deriving from the international human rights framework were discussed. This chapter, as the attribution of obligations does not automatically entail responsibility, determines what the responsibilities are of the different actors involved.93 As the conflict is characterized by the involvement of several different
armed groups and states, it is difficult to attribute the harmful outcomes to one single actor.
93 UN International Law Commission, ‘Articles of Responsibility of States for Internationally Wrongful Acts’ (2001) U.N. Doc. A/56/10 (hereinafter ARSIWA) Article 2
First, the responsibility of the different states involved will be discussed. This includes the territorial states Syria and Iraq, but also the country of origin of the foreign fighters, the Netherlands. The CRC does not contain any provisions that aim to establish responsibility, as it rather focuses on non-binding recommendations and suggestions on the implementation of the covenant.94 Therefore the Draft Articles on the Responsibility of States for Internationally
Wrongful Acts are used to establish responsibility. Secondly, this chapter will look at the responsibility ISIL.
2.2 Responsibility of the Territorial States Through Attribution
The law concerning state responsibility is reflected in the work of the International Law Commission of the UN. According to this document, a state would be held responsible if its conduct consists of an act or omission which is attributable and constitutes a breach of an international obligation of the state.95 The general rule in international law is therefore that a
state can only be held responsible for its own conduct or for that of persons acting on its behalf. The ARSIWA provides nonetheless for several articles wherein a state can be held responsible for the conduct of private persons. Particularly relevant when looking at
violations committed by non-state armed groups and the attribution to states are articles 9 and 10 of the ARSIWA. Article 10 states that a state will be responsible if a movement has either been successful in becoming the new government96 or in establishing a new state in part of
the territory of the pre-existing state.97 The commentary to article 10 ARSIWA however
clarifies that the conduct of (unsuccessful) armed groups98 cannot be attributed to states if
they lack effective control, unless in the special circumstances of article 9.99 This means that
there can be no attribution to the territorial states on the basis of article 10 during the insurrection or if the non-state armed group fails in becoming a new state or government.100
As both ISIL and the SDF have not created a new state or government, the conduct of ISIL and SDF cannot be attributed to Syria and Iraq through article 10 ARSIWA.
94 Committee on the Rights of the Child, ‘Rules of Procedure’ (U.N. Doc. CRC/C/4/Rev.2, 2010e) rule 75
95Article 2 ARSIWA
96Article 10 (1) ARSIWA
97 Article 10 (2) ARSIWA
98 UN International Law Commission, ‘Articles of Responsibility of States for Internationally Wrongful Acts, with commentaries’ (2001) UN Doc A/56/10 (hereinafter: ARSIWA Commentary) Article 10 para 9 p. 51. The definition of the term ‘insurrectional movement’, as used in article 10, includes ‘dissident armed forces or other organized armed groups.’
99 ARSIWA Commentary to Article 10, para. 2 p.50
100 Tilman Rodenhäuser, Organizing Rebellion: Non-State Armed Groups under International Humanitarian Law, Human Rights Law, and International Criminal Law (Oxford University Press 2018) 136
The acts of ‘unsuccessful’ insurrectional movements can however be attributed through article 9.101 Article 9 provides for the situation where the conduct of non-state actors can be
attributed to the state if this actor exercises ‘elements of governmental authority in the absence or default of the official authorities.’ This kind of attribution can only be invoked in exceptional situations, for example during ‘revolution, armed conflict or foreign occupation, where the regular authorities dissolve, are disintegrating, have been suppressed or are for the time being inoperative.’102 The commentary clarifies that there are three conditions that have
to be met before the attribution is possible.103 Firstly, the conduct must ‘effectively relate to
the exercise of elements of governmental authority.’ However, article 9 does not cover the governmental actions that cause damage to persons or objects by armed groups during the insurrection, according to Fortin.104 Governmental functions of armed groups that are related
to the military campaign and the struggle with the government cannot be attributed to the state.105 This would include the recruitment and training of children. In some instances,
activities that at first hand seem governmental, can also be used as a method of warfare and therefore cannot be attributed to the state. Fortin mentions that this is seen in the tactics of the Islamic state.106 It is argued that article 9 can only apply to ‘impersonal acts of certain armed
groups.’107 In the Caliphate’s peak, ISIL was known for its ‘complex system of government’
where they build a state of ‘administrative efficiency that collected taxes and picked up the garbage.’108 It therefore seems that this conduct meets the criteria of exercising elements of
governmental authority. However, this is the opposite with the recruitment of child soldiers and other conduct relevant to the children of foreign fighters, as they are related to the military campaign of the terrorist group. This can therefore not be attributed to Iraq or Syria through article 9 ARSIWA.
101 Article 10 (3) ARSIWA
102 ARSIWA Commentary to Article 9, para. 1 p. 49
103 ARSIWA Commentary to Article 9, para. 3: ‘ [...] first, the conduct must effectively relate to the exercise of elements of the governmental authority, secondly, the conduct must have been carried out in the absence or default of the official authorities, and thirdly, the circumstances must have been such as to call for the exercise of those elements of authority.’ p.49
104 Katharine Fortin, ‘The Relevance of Article 9 of the Articles on State Responsibility for the Internationally Wrongful Acts of Armed Groups’ in James Summers and Alex Gough (eds), Non-State Actors and
International Obligations: Creation, Evolution and Enforcement (Brill 2018) 383
105 Ibid
106 Fortin (2018) 383
107 Katharine Fortin, The Accountability of Armed Groups under Human Rights Law (Oxford University Press 2017) 254
108 Rukmini Callimachi ‘The ISIS files’ The New York Times (New York, 4 April 2018) available at:
<https://www.nytimes.com/interactive/2018/04/04/world/middleeast/isis-documents-mosul-iraq.html> accessed on 13 December 2018
This is different when looking at the children in the displacement camps. These children are being held in camps located in a legal grey area in Northern-Syria under control of the SDF. This non-state armed group seems to be exercising governmental authority in detaining these children in the displacement camps. Therefore, the first criteria of article 9 ARSIWA seems to have been met. Secondly, as the Syrian government lost control over this part of the territory, the criteria of ‘absence or default of the official authorities’ also seems fulfilled. Thirdly, ‘the circumstances must have been such as to call for the exercise of those elements of authority.’109 According to the ARSIWA Commentary, it is the ‘governmental authority’
that must have been called for, not necessarily the conduct itself.110 The SDF has already
stated it does not want to detain these mothers and children and that the Syrian government should take action.111 It could therefore be argued that in absence of the official government,
there was a need and call for the authority of the SDF. I would therefore argue that the conduct of the SDF, as it is detaining the children associated with ISIL, is attributable to Syria.
It seems that conduct of ISIL cannot be attributed to the territorial states through article 9 and 10 of the ARSIWA. Holding a state responsible for the acts of an armed group that no longer exists as a legal entity would be eligible in the sense that the responsibility gap that emerges post-conflict would be filled.112 On the other hand, seen from a political perspective, the
attribution of conduct of these NSAGs to Syria and Iraq would be undesirable, as they are both entities that they have been fighting against.113 Rodenhäuser also notices that
jurisprudence and practice supporting this interpretation of article 9 and 10 ARSIWA are lacking.114
2.3 Due Diligence of the Territorial States
The territorial states can however be held responsible for breaches of their own positive obligations.115 A state can be held responsible if they were in the position to ‘adopt measures
of vigilance, prevention or punishment in respect of the movement’s conduct but improperly
109 ARSIWA Commentary to Article 9, para. 3 p. 49
110 ARSIWA Commentary to Article 9, para. 6 p. 49
111 Ben Hubbard, ‘Wives and Children of ISIS: Warehoused in Syria, Unwanted Back Home’ The New York Times (New York, 4 July 2018) available at: < https://www.nytimes.com/2018/07/04/world/middleeast/islamic- state-families-syria.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news> accessed on 5 October 2018
112 Rodenhäuser (2018) 137
113 Fortin (2017) 139
114 Rodenhäuser (2018) 137
failed to do so.’116 This is different from attribution of conduct of the armed group since it is a
failure of the State itself to exercise due diligence in preventing or reacting to the violations of non-state armed groups.117 This due diligence test was first mentioned in the Velasquez
Rodriguez Case118 and later further defined by the UNHRC in its General Comment No. 31.119
The Inter-American Commission on Human Rights defines this obligation more in detail as ‘the duty of the States parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights.’120 A state should take ‘all appropriate
measures’ to address the violations, which is an obligation of means and not of result.121 It is
therefore depending on the circumstances when a state has violated its due diligence
obligation, as it depends on a state's capacity to act. In relation to terrorism, the obligation is evaluated in light of ‘what the state knew (or ought to have known) about the threat
emanating from its territory, and its genuine capacity to avert the threat.’122
In the context of foreign fighters children and the violations of their rights by ISIL and the SDF, it depends on whether the state can regain part of its territory. This depends on its capacity on the basis of its ‘financial and military resources.’123 If Syria and Iraq would
therefore have the ability to respond and further prevent the NSAGs from violating the children’s rights, but refrain from taking measures, it is in violation of its due diligence obligation.
2.4 Responsibility of The Netherlands
As seen in the previous chapter, the Netherlands lacks jurisdiction in the case of the children of foreign fighters. As there is no effective control over the territory nor authority and control over a person this results in no state jurisdiction. The Netherlands therefore does not have obligations concerning the children when looking at the CRC and its additional protocol. As international responsibility only follows from a breach of an obligation, there is no
internationally wrongful act.124 Therefore the ARSIWA cannot be used for invoking the
116 ARSIWA Commentary to Article 10, para. 15 p.52
117 IACHR ‘Velásquez Rodríguez v. Honduras’ (29 July 1988) (Ser. C) No. 4 para. 172
118 IACHR ‘Velásquez Rodríguez v. Honduras’ (29 July 1988) (Ser. C) No. 4
119 UNHRC ‘General Comment 31’ (2004) para. 8
120 IACHR ‘Velásquez Rodríguez v. Honduras’ para. 166
121 UNHRC ‘General Comment 31’ (2004) para. 8
122 Kimberley Trapp, State Responsibility for International Terrorism (Oxford University Press 2011) 65
123 Ibid 75
responsibility of the Netherlands, as the threshold of jurisdiction has not been met. The responsibility of the Netherlands thus ends at their borders.
The Kurdish authorities are unable and unwilling to deal with their detainees and ISIL wives and children in Iraq are faced with ‘swift trials and death sentences.’125 The Netherlands could
provide consular or diplomatic assistance, which rules are laid down in the Vienna
Convention on Diplomatic126and Consular Relations.127 There are several conditions that have
to be met before the national state can invoke diplomatic protection.128 However, under
international law, providing consular or diplomatic assistance is a right that belongs to the state and not to the individual.129 It is not an obligation under international law of the
countries of origins to protect their nationals through consular or diplomatic protection, even when they are detained.
2.5 Non-state Actors and Responsibility
As the protection of human rights is state-focused, most treaties do not contain direct obligations for non-state actors. The OPAC is an exception, as this document directly addresses non-state armed groups. As discussed in the previous chapter, it remains a controversial topic if it actually obliges non-state actors or if it is a mere soft moral
obligation. There does seem to be a growing consensus that non-state armed groups can be bound if they exercise elements of governmental territory or have control over part of the territory.130Assuming that human rights law is applicable to armed non-state actors, the
following question is if these armed groups can be held responsible. If an armed group has acquired legal personality under international law and still exists, it is possible to be held responsible for its own conduct.
The responsibility of the armed group itself falls outside the scope of the ARSIWA, as it is only concerned with the responsibility of states.131 Non-state armed groups could only have
125 Ben Hubbard, ‘Wives and Children of ISIS: Warehoused in Syria, Unwanted Back Home’ The New York Times (New York, 4 July 2018) available at: < https://www.nytimes.com/2018/07/04/world/middleeast/islamic- state-families-syria.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news> accessed on 5 October 2018
126 UN ‘Vienna Convention on Diplomatic Relations’ (adopted 14 April 1961, entered into force 24 April 1964)
127 UN ‘Vienna Convention on Consular Relations’ (adopted 22 April 1963, entered into force 19 March 1967)
128 Articles 14 and 15 Vienna Convention on Diplomatic Relations
129 International Court of Justice (Mavrommatis Palestine Concessions, Greece v United Kingdom Judgment) [1924] PCIJ Series A No 2para. 21
130Annyssa Bellal, Gilles Giacca, Stuart Casey-Maslen, ‘International Law and Armed Non-State Actors in Afghanistan’ [2011] International Review of the Red Cross p.47
responsibility through these articles after they succeed in becoming the new government or state.132 Although states and NSAGs have similar characteristics, it is questionable if the
ARSIWA could be used and applied to NSAGs without further adaptation.133 The current
human rights framework therefore does not seem adequate to hold the NSAGs responsible. Fortin argues that because the human rights framework does not provide clarity of when and how armed groups are bound, it is uncertain if the practice of the UN accountability
mechanisms is legitimate.134 Before armed groups can be held accountable, the criteria for
binding armed groups to human rights have to be set clear, according to Fortin. The system of the accountability mechanism set up by the NGO Geneva Call and the UN could be used as a model for accountability of human rights violations by NSAGs.135 All three states have not
ratified the third optional protocol of the CRC, the protocol on a communications
procedure.136 The several accountability mechanisms, provided for in the optional protocol,
can therefore not be used. In several of the UN human rights reports, the UN has introduced a ‘naming and shaming’ of the NSAGs that have violated children human rights.137 It is
however questionable if in the context of the extremist group of ISIL, this ‘soft’ procedure of naming and shaming will work.138
2.6 Conclusion
As this chapter has shown, it is difficult to point out one actor that is responsible for the children of foreign fighters. As there are different actors involved, it is difficult to attribute the harmful outcomes to one single actor. In the current international law framework, including that of the ARSIWA, there is no set of rules providing for the phenomenon of shared responsibility. Only article 47 ARSIWA provides for plural responsibility of states, but does not include the responsibility of NSAGs in combination with states. In this chapter it is argued that the responsibility of the Netherlands ends at its borders, since it has no
obligations towards these children, except for the obligation of non-refoulement. The territorial states can be held responsible through attribution of conduct of NSAGs through article 9 of the ARSIWA. This only applies to conduct of the SDP. Moreover, the
132 Article 10 ARSIWA
133 De Guttry, Capone and Paulussen (2016) p.215
134 Fortin, (2017) p. 360
135Ibid p. 392
136 UN Committee on the Rights of the Child ‘Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure’ (adopted 19 December 2011, entered into force 14 April 2014)
137 UNGA ‘Report of the Secretary-General: Children in Armed Conflict’ (16 May 2018) UN Doc A/72/865– S/2018/465 p.12-14 and 25-27
responsibility of the territorial states can be established through a ‘due diligence’ obligation. Moreover, these territorial states can be held responsible for their own wrongdoing. The NSAGs themselves can only be held responsible through the ARSIWA if they have established a new state or government. This chapter shows that there still exists a gap in holding the NSAGs responsible through the current framework of international human rights law. It seems that the new reality of these foreign fighters and their children were not thought of when the articles of state responsibility were developed.
Chapter three: Current policies
3.1 IntroductionMultiple states of foreign fighters have responded to the issue of foreign fighters children. Only two countries, Russia and Indonesia, have been reported to actively repatriate the children.139 France has recently stated that it will start bringing back children by separating
them with their mothers, who will be left in Syria to be prosecuted by the local authorities.140
This chapter will look at these different approaches against the human rights backdrop of the CRC. First, the foreign fighters problem and their children at the UN-level will be discussed. Secondly, several policies of the Member States will be discussed against a human rights backdrop.
139 Ben Hubbard, ‘Wives and Children of ISIS: Warehoused in Syria, Unwanted Back Home’ The New York Times (New York, 4 July 2018) available at: < https://www.nytimes.com/2018/07/04/world/middleeast/islamic- state-families-syria.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news> accessed on 13 December 2018
140 Josie Ensor & Kate McCann, ‘France to repatriate Isil fighters' children as UK mulls plan for four British minors in Syria’ The Telegraph (London, 24 October 2018) available at:
<https://www.telegraph.co.uk/news/2018/10/24/france-repatriate-isil-fighters-children-uk-mulls-plan-four/> accessed on 13 December 2018
