HF and Others v France: Extraterritorial Jurisdiction without Duty to Repatriate IS-Children and their Mothers

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On 14 September 2022 the Grand Chamber of the European Court of Human Rights (ECtHR or Court) issued its judgment in HF and others v France, a case concerning the repatriation of IS-children and their mothers from Syrian camps. This judgment is interesting for various reasons: it addresses an issue that is controversial in many countries; it is the latest episode in the saga of the ECtHR and extraterritorial jurisdiction; and it is the first time that the Court clarifies the meaning of Article 3(2) of Protocol 4 to the European Convention on Human Rights (ECHR) (right to enter one’s own country). This post focuses on the Court’s approach to extraterritorial jurisdiction and compares it with the recent decisions of the United Nations (UN) Committee on the Rights of the Child on the same issue.

The Facts

The applicants in this case are the (grand)parents of two women who travelled to Syria with their partners in 2014 and 2015 in order to join the Islamic State in Iraq and the Levant (IS), as well as their three children, born in 2014, 2016 and 2019. In early 2019, the applicants’ daughters were reportedly arrested and detained in the al-Hol and Roj camps in Syrian Kurdistan. The situation in the camps is appalling, with children suffering from malnutrition, dehydration, being at risk of violence and sexual exploitation; and more generally inhuman and degrading detention conditions, including extreme weather conditions (paras 16-25, see also here). Between March 2019 and January 2021 France repatriated 35 children from Syrian camps on a case-by-case basis, but the applicants’ daughters and grandchildren were not among those repatriated. Between October 2018 and May 2019 the applicants brought multiple proceedings to seek the repatriation of their relatives, to no avail.

Does France Exercise Jurisdiction over the Applicants’ Relatives?

The Court starts by recalling the principles applicable to Article 1 ECHR. As ‘a State’s jurisdictional competence is primarily territorial’, the ECtHR must assess whether the existence of special features justifies the finding that a state exercises jurisdiction extraterritorially (para 185). It reiterates the personal model of jurisdiction (control and authority over an individual) and the spatial model (effective control over an area) (paras 186-87) as elaborated in  Al-Skeini and others v United Kingdom and adds, with reference to MN and others v Belgium, that specific circumstances of a procedural nature can justify the application of the ECHR in relation to events which occur abroad (para 188).

The Grand Chamber then proceeds to apply these principles to the facts of HF in three steps. First, France ‘does not exercise any “effective control” over the territory of north-eastern Syria and nor does it have any “authority” or “control” over the applicants’ family members’ (paras 191-192). In other words, neither the spatial nor the personal models apply. Second, the Court holds that the opening of proceedings at the domestic level, be they criminal proceedings opened by the French authorities against the applicants’ daughters or the applicants’ requests to repatriate their relatives, does not create a jurisdictional link between France and the applicants’ relatives (paras 193-96). Third, the ECtHR examines whether there are connecting ties with France that trigger its jurisdiction over the applicants’ daughters and grandchildren. Recalling that jurisdiction under Article 1 ECHR can be divided and tailored (paras 186 and 188), the Court then examines Articles 3 ECHR and Article 3(2) of Protocol 4 in turn.

As regards Article 3 ECHR (prohibition of torture and ill-treatment), the Grand Chamber dismisses the applicants’ argument that the French nationality of their family members constitutes a sufficient connection to establish a jurisdictional link (para 198). Moreover, France’s operational capacity to repatriate ‘does not suffice to constitute a special feature capable of triggering an extraterritorial jurisdictional link’ (para 199). Therefore, the mere decision of the French authorities not to repatriate the applicants’ family members does not bring them within the scope of France’s jurisdiction as regards the ill-treatment to which they are subjected in Syrian camps under Kurdish control (para 203). In other words, the Grand Chamber rejects a functional approach to jurisdiction, which links jurisdiction to a state’s ability to act and the impact of its (in)action (see e.g. the Human Rights Committee’s General Comment 36 and decision in AS and others v Italy).

Under Article 3(2) of Protocol 4 (right to enter one’s own country), the Court first recalls that nationality cannot constitute an autonomous basis of jurisdiction (para 206). It then notes that specific circumstances may nevertheless create a jurisdictional link between a state and its nationals abroad who wish to enter that state (para 212). As regards the applicants’ relatives: there is a legal link between the state and its nationals; the applicants have addressed a number of official requests to the French authorities for repatriation and assistance; those requests were made on the basis of the fundamental values of the democratic societies which make up the Council of Europe, while their family members were facing a real and immediate threat to their lives and physical well-being; the applicants’ relatives cannot return to France without the assistance of the French authorities; and the Kurdish authorities have indicated their willingness to hand over the French female detainees and their children to the French authorities. These special features trigger France’s jurisdiction as regards Article 3(2) of Protocol 4 (paras 213-14). In sum, HF tells us that under the above – very specific – circumstances, a state can exercise extraterritorial jurisdiction as regards the right to enter one’s own country.

Article 3(2) of Protocol 4: No Obligation to Repatriate, but Safeguards against Arbitrariness

On the merits, the Grand Chamber finds that states parties have no obligation to repatriate their nationals: ‘French citizens being held in the camps in north-eastern Syria cannot claim a general right to repatriation on the basis of the right to enter national territory’ (para 259). Nevertheless, Article 3(2) of Protocol 4 may impose (less far-reaching) positive obligations on the state if state inaction amounts to de facto exile (para 260). The Court’s analysis proceeds in two steps. First, it establishes that there are exceptional circumstances, namely the extraterritorial factors which contribute to the existence of a risk to the life and physical well-being of the applicants’ family members, in particular the children (paras 264-271). Second, the French authorities’ examination of the requests for repatriation made by the applicants on behalf of their relatives was not surrounded by appropriate safeguards against arbitrariness, resulting in a violation of Article 3(2) of Protocol 4 (paras 272-284). This provision thus only imposes a procedural obligation (ensuring appropriate safeguards against arbitrariness) as regards repatriation from Syrian camps.

Sidelining the Committee on the Rights of the Child?

The applicants lodged their applications with the ECtHR in May 2019 and October 2020. Around the same time (March and November 2019) the Committee on the Rights of the Child received similar complaints against France. The Committee decided in September 2020 that the communications were admissible, in what Milanovic describes as a nationality-based variant of the functional model: France exercised jurisdiction because ‘as the State of the children’s nationality, [it] has the capability and the power to protect the rights of the children in question by taking action to repatriate them or provide other consular responses’ in light of France’s rapport with the Kurdish authorities, the latter’s willingness to cooperate and the fact that France had already repatriated at least 17 children (para 9.7). On the merits, the Committee found that France had violated Article 3 (best interests of the child), Article 6(1) (right to life), and Article 37(a) (prohibition of torture) of the Convention on the Rights of the Child; and that it must repatriate French children held in Syrian camps (paras 6.9-6.11). Thus, both the Court and the Committee recognise that nationality plays a role in triggering extraterritorial jurisdiction, but that it is insufficient on its own to establish a jurisdictional link. However, they disagree as to the extent of state obligations: while the Committee finds that France exercises jurisdiction over IS-children (including on account of the situation in the camps) and must repatriate them, under the ECHR France must only maintain appropriate safeguards against arbitrariness when examining requests for repatriation.

Analysis: A Hollow Victory?

In HF and others v France the ECtHR has to address an issue that is ‘morally disturbing and politically toxic’. The judgment reflects the Court’s struggle in navigating the legal and political minefield that this case represents. Tellingly, the separate opinions criticise the majority decision from both sides. On the one hand, Judges Pavli and Schembri Orland argue that the majority’s proceduralist approach does not go far enough because it falls short of establishing a substantive obligation to put an end to the de facto exile of nationals. On the other hand, according to the partly dissenting judges Yudkivska, Wojtyczek and Roosma, the majority went too far in finding a violation of Article 3(2) of Protocol 4. Arguably, in trying to reach a compromise that pleases everyone, the Grand Chamber ends up pleasing no one.

Considering the appalling conditions of al-Hol and Roj camps, the Court’s condemnation of France is to be welcomed. However, both the Grand Chamber’s reasoning and conclusion in this case leave the reader somewhat dissatisfied. Most importantly, the judgment does not guarantee the applicants’ relatives a way out of the camps: in the absence of a general obligation to repatriate French nationals held in Syrian camps, it is plausible that a new examination of the requests for repatriation, which is surrounded by appropriate safeguards against arbitrariness, would not lead to a different outcome. This is all the more true for other nationals of Council of Europe member states who remain detained in Syrian camps. If states’ obligations towards them are limited to procedural safeguards surrounding requests for repatriation, their rights risk becoming, in the words of the Court, ‘theoretical and illusory’ rather than ‘practical and effective’.  

More generally, what does HF and others v France add to the Court’s existing case law on extraterritorial jurisdiction? First, it confirms that the Court’s existing case law, notably the spatial and personal model, does not cover all the situations in which states exercise extraterritorial jurisdiction. Rather, in this case the Grand Chamber identifies ‘special features’ that trigger France’s jurisdiction, without ‘fitting’ into an existing strand of case law. Yet the circumstances that trigger jurisdiction in this case are so specific that it is unlikely to be relevant to other cross-border situations. Second, the ECtHR rejects the functional approach to jurisdiction which it had earlier seemed to adopt in Carter v Russia (see here). In other words, while the ECtHR seems to gradually move beyond a mere focus on the personal and spatial models of jurisdiction, it remains reluctant to embrace a functional approach. It thereby not only differs from the Committee on the Rights of the Child, but also other treaty monitoring bodies, including the Human Rights Committee.

Finally, the question arises as to how HF and others v France relates to the decisions of the Committee on the Rights of the Child on the same issue. As a practical matter, in light of the different views taken by the ECtHR and the Committee, should France (and other Council of Europe member states) repatriate IS children and their mothers? At a more theoretical level, divergent interpretations of similar norms among human rights treaty bodies raise questions about the coherence of international human rights law: does such divergence of interpretation risk weakening international human rights norms?

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Martin Scheinin says

October 14, 2022

Thank you for a very well written analysis. As a complement, I would like to refer to a very recent case decided by the Committee on the Rights of the Child, P.N. et al. v. Finland (Communication No. 100/2019), acknowledging that I served as co-counsel of the applicants.
The Committee held that Finland had jurisdiction because: "In the circumstances of the present case, the Committee observes that the State party, as the State of the children’s nationality, has the capability and the power to protect the rights of the children in question by taking action to repatriate them or provide other consular responses. These circumstances include the State party’s rapport with the Syrian Democratic Forces, the latter’s stated willingness to cooperate in repatriations, and the fact that at least 26 children have been successfully repatriated from the camps in north-east Syria since 2019." (para. 10.9).
From the Committee's Views it transpires that this argument was not exactly what the applicants claimed. They focused on acts and omissions by Finnish authorities that had taken place in the capital of Finland and that in themselves constituted a violation of the ICRC in respect of the applicants: "The authors claim that the State party has not taken the measures necessary to repatriate the child victims to Finland and that this failure to act constitutes a violation of articles..." (para. 1.1). The applicant's response to the State party's objection based on lack of jurisdiction was paraphrased by the Committee as follows: "As to jurisdiction, the authors submit that the communication only relates to acts or omissions that are within the jurisdiction of the State party." (para. 5.5). This would represent a straightforward functional approach.
The Committee's line of argument quoted earlier (which may have become factually incorrect while the case was under consideration) did not follow the applicants' approach and actually appears to be closer to the ECtHR approach in HF and Others v. France than a clearly functional approach. It is vulnerable to the same critique as presented by Annick Pijnenburg in her blog post in respect of the ECtHR.