Professor Fionnuala D. Ní Aoláin, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, took up her functions on 1 August 2017. She is a University Regents Professor at the University of Minnesota; holder of the Robina Chair in Law, Public Policy, and Society; and faculty director of the Human Rights Center at the University of Minnesota Law School. She is concurrently a professor of law at the Queen’s University of Belfast, School of Law. The Bulan Institute met with her to discuss the state obligations to repatriate women and children from Syria and Iraq.

–Thank you for agreeing to give the interview, and I would like to extend my appreciation and gratitude for your work so far and the first question is about the situation in camps in Al-Howl and Roj and I understand that this virus, Coronavirus, is going to push back all the plans and it’s going to postpone everything, but we have to continue discussing it, and some sources say that there are 60’000 people, some sources say that 40’000 people are living in camps and including those who are in prisons. Can you share the information you have, how many people live in camps and in what conditions are they living? Let’s start with this question. 

–I think it’s clear why a variety of numbers are being given and it depends on how individuals are counted; the number that the mandate is working with is an approximate number of 70’000 people. That includes a head count of all of the children and it comes from the interagency numbers that have been supplied to the office of the high commissionaires from other agencies, including the High Commissionaire for Refugees, the World Health Organization, and SRSG’s offices. So it’s a combination. To be honest, I don’t think we have the exact number to work with, because as far as we’re aware, no official head count has been carried out across all the facilities   including prisons as well as these camps, Al-Kohl and other camps that are in the control of SDF forces.

–And what would you say about the conditions, food supplies, medical assistance to these people?

–We have a number of reports available to us about conditions in these camps. The ICRC has continued to update regularly, based on its access to the camp. The mandate has also met with groups of doctors who have visited and assessed the camp. So for example there’s a report from a group of Belgians doctors (who visited Al-Kohl camp in June 2019 who shared their information with me) and then we have other NGO reports, for example, most recently a UK organization called Rights Watch UK undertook research and they are also about to publish a report based on a team that they had going from camp to camp in the last two months. So, we have a lot of good first head accounts of the conditions in the camp. And I would also say I have interviewed many women returnees, primarily in Kazakhstan but also in prisons in other countries, so it is just to say the sources that we have.

If we take living conditions, first of all in many of the camps are, there is inadequate housing. Most of the camps are made up of loose structures, like tents, they’re not permanent structures, so they’re impermanent structures made out of tenting material, usually tarpaulin or plastic. Obviously, particularly over the winter months, these tents were not adequate in terms of providing cover from the conditions outside and particularly from the cold and from the rain. So, the camp conditions of living are poor. And access to water in camps is, we know, constrained and not safe. So, we know that individuals carry water to their tents in buckets or these containers that are provided by the SDF or by international organizations. Water for cooking, for cleaning is limited. Food supplies we understand are also limited. They’re limited obviously because the area is still an area of conflict so humanitarian supplies have been restricted. We know that there’s a very large dependent population, which means that they’re not able to grow or access their own food, they’re entirely dependent on what comes in from the outside. So, that is really poor access. Nutrition levels in the reports we’ve seen for example from Belgian doctors who examined Belgian children, believe that many of the children are mal-nourished and don’t have adequate access to food.

And then finally just to say obviously, there are real issues about sanitation. When you have that many people living in closed quarters and you don’t have running water then their issues of toilets and sanitary conditions to ensure that infection doesn’t spread in the camps. And my understanding is both from the doctors and the first-hand interviews that we’ve had, that maintaining proper sanitary conditions is a real challenge.”

–How the international community should address this situation with FTFs and their associates?

–The question was how best can the international community respond to their obligations in respect to returning foreign fighters. And my view is that states are under a legal obligation from the Security Council to repatriate, but we know that in practice that has been very difficult. We have some countries who have taken positive measures and in this regard Kazakhstan is the most significant, but others including Tunisia, Russia, Kosovo, Bosnia have all taken back returnees and in the mandate’s view that’s been a really significant contribution to their obligations under International Law and very positive examples for other states. The challenge is of course that when states refuse to undertake return, they create a range of other International Law problems and essentially, they displace their obligations to their citizens, but also move those obligations on to other states. So, one of my concerns has been that states are failing in their obligations of solidarity with one-another and displacing the burdens that they have, and the obligations they have, and placing them inappropriately on other states.”

–Why Western countries have been reluctant to repatriate and what kind of justifications they give?

–The mandate is very aware of the problems of western countries in returning their citizens, almost universal, unwillingness to do so. We had some examples of return: Ireland for example returned one of its citizens, but it should be noted that Ireland had only one foreign fighter dependent and child to bring back, so the burden was not as high as it is on others.

I think the range of issues that we see from governments, the first is that this is the responsibility of the government where that person is located. The argument there, is that any violation of human rights violations that have been committed by those individuals should be tried close to where the victims are found. Now in theory, this is a good human rights argument in the sense that we often say that if there is criminal conduct to be examined, it should be examined close to the victims of the violence. But in reality, of course it’s meaningless in first instance, because these women and children are being held by non-state actors, there is no possibility of criminal trial. So, it assumes that therefore that these women and children will be held in indefinite detention ore are in pre-detention to trial which is a breach of these states International Law obligations.

The second assumption is that all of these women and children have committed crimes, and to state the obvious under the Convention of the Rights of the Child, these children cannot be deemed to be responsible for the acts of their parents, simply by virtue of having been born in North-East Syria. Rightly note that one of the examples or reasons states give why they cannot return is that they do not have consular access to these individuals and my view has been consistently stated to governments that not withstanding the fact that other states such as Kazakhstan, Kosovo, Russia did not have consular presence in these areas, they were able to return their citizens safely and securely and ensure their health and safety by return.

It’s also notable of course that many of these states play and have a double voice, that is to say, we know in practice that many of these states are in direct contact with the camp authorities. We know that, because there had been significant and well-evidence reporting that the security services of these states have been present in the camp and have been engaged in negotiations and discussions with a non-stated actor. So, it seems that if you can be sufficiently present to engage with a non-state actor in a security sector way, then it seems equally obvious that you should be present in another way, that is, in a way to secure your citizens.

We also know that a number of these governments have in fact enabled humanitarians, their own humanitarians, to access the population, whom they believe to be their nationals. That would also suggest that if you have sufficient control and access to enable medical and other review of your citizens, then you are in a sufficient degree of access to enable their safe return.

And I suppose, I would also say that here we know that there are multiple examples of states in other countries when their nationals have needed help in insecure or fragile states, or states where access to individuals may be in remote geographical locations; states have found ways to do that in other examples but are choosing no to do so in this.

-Could you please tell me about concrete positions of the EU countries? I know that you met with them and discussed the issue.

–Thanks about the question asking about the specific positions of countries, European countries. I suppose I should say that the confidential conversations between the Mandate and individual countries and their positions, I would be uncomfortable saying “country X has said…, X,Y and Z in discussions”, so I think I should avoid that just to preserve the integrity of ongoing bilateral discussions with states about return. I think what I’m comfortable to do is speak to the public positions of certain states, which as we are all well aware I think, they are in the public domain. I do notice that there are in some cases, differences between the public and the more nuanced positions expressed in private by governmental actors that I would be unwilling to attribute those at this point while these negotiations are ongoing. I think as you’ve clearly noted, France has taken the public position that it will not take back returnees, that they should be tried in the host country. It is notable however that France has also said that in cases involving the application of the death penalty, it will engage proactively, particularly in cases involving Iraq where the death penalty has been charged against French fighters and that they will engage on those cases. And number of countries, Belgium is an example, have stated publicly that they will return children under the age of 10 and this far unfortunately we have not seen significant progress on that promise of return, but remain hopeful that Belgium and its leadership position particularly in the Security Council and its commitment to the protection of children in conflict will in fact realize that policy commitment and practice over the coming months. The UK position is willing to consider in a case-by-case basis the return of children and again, we are waiting to see the implementation of that policy in practice.”

–Is it possible to try them in host countries? And what you think about the idea having an ad hoc international tribunal?

–So, the question asked was, whether or not trials are possible in host countries and I think this is a really complex and challenging issue. As you have rightly noted, there have been trials in Iraq but I should say that in the United Nations and in a particular recent report authored by the Office of the High Commissioner on Human Rights, found fundamental deficits in the trials that have taken place. There are just profound process concerns about the quality and the fairness of those trials. They include that the trials are often charged, that individuals are charged without access to lawyers, that it’s clear that in many cases individuals may have been subjected torture and inhuman and degrading treatment prior to giving evidential statements which are then non-reliable. The trials themselves have been roughly short, sometimes less than 10 minutes particularly in cases involving capitular death penalty offenses. And it’s really unclear, whether the independence and the fairness of the trials are guaranteed even in those trials that have taken place within Iraq, it’s very clear that the Iraqi judicial system is struggling to implement those trials fairly.

The second issue of course then is potential trials in North-East Syria. It is the case that there have been some discussions about having some forms of trials managed by the Syrian democratic forces, then it appears that the SDF is willing and interested in hosting such trials. But to state the obvious, we do not generally have non-state actors running trials, and there is a reason for that, which is non-state actors have not signed treaties, they don’t have a judicial system and they may not be in position to ensure that the trials are fair. So, I do not see that as a solution. Perhaps a permanent nod ad-hoc tribunal which would address the concerns in the region and could be done fairly and equitably is the only solution, but that would require states to be prepared to spend a great deal of money to produce that outcome and it’s not clear that they’re willing to do that.

–I support strongly your position that women and children should be repatriated. Of course children are innocent. But some experts argue that some women could have committed crimes and been very radicalized. How would you respond to such arguments?

–So, the question that was asked was about the status of women and children in particular and should we see them as victims. So, my view is that in this case it’s really clear that children as a category under the Convention of the Rights of the Child surely must be treated as victims. Many of them have been subject to enormous trauma, many of them are experiencing the most fundamental violations of their human rights like the right to life, the right to be free from torture and inhuman and degrading treatment. The mandate has found that the conditions in the camp reach the thresholds of article 3 of the European Convention of Human Rights which prohibits torture and inhuman and degrading treatment.  Some of their most fundamental economic and social rights are denied.

Many of the women I should say, I think, we shouldn’t treat women as lumpen class. I’ve taken the view that where women have committed offenses and terrorist offenses, they need to be charged and prosecuted and that should appropriately be done by their national authorities. So, the Mandate’s view is not that women who have committed offenses should be released of responsibility, but that they have to have a fair and competent process to assign and address that responsibility just as men do as well.

However, I do believe that there’s a sizeable portion, and I know this from interviewing many returnees. Many of the women who now have children, were in fact children themselves when they travelled to Iraq and Syria: many of them were groomed online, many of them were in a way, one could use the analogy of trafficked, grooming and trafficking to define the experience of a sizeable portion of this group.

So, another context we hold, women who have been groomed or trafficked for sexual slavery or for sexual harm as victims, we think of them as victims because we recognize the complexity of the ways in which they are lured online and the ways in which they have been taken out of their national or their geographical area to another. And so, it’s quite extraordinary that we don’t provide the same kind of compassion to these women, as we do to women in other analogous circumstances.

For those women that have been radicalized or who have committed violence then I think there has to be appropriate deradicalization measures put in place. But as the security, it’s really very interesting that many of the security views on the situation of women and children in Syria, take the view that it is much more dangerous, in the long-run to the security of all states, including western states, to leave these women where they are, than to in fact to return them and address either their responsibility or their victimhood or their radicalization, to do that appropriately in a place where it can be managed under an appropriate legal framework.

–Thank you for answering our questions. And please accept our high appreciation of your work and your contribution to international peace.