July 05, 2021European Court of Human Rights Submitted Counter-Terrorism Repatriation Gender Intervenor
Summary of the cases
H.F. and M.F. v. France (application no. 24384/19) was brought by the parents of a French woman, L., who is being held alongside her two children in al Hol camp in North East Syria. L. departed France in July 2014 and travelled to territory then controlled by the Islamic State (IS). She now has two children (born in Syria in December 2014 and February 2016, respectively). L. and her two children were reportedly arrested on 4 February 2019 and moved to al Hol camp.
J.D. and A.D. v. France (application no. 44234/20) was brought by the parents of a French woman. Their daughter departed France in July 2015 and travelled first to Iraq and later to Syria. She gave birth to a child in January 2019. Mother and child have been held in al Hol camp since March 2019.
Both sets of applicants allege that the French Government’s decisions not to repatriate their respective daughters and grandchildren to France expose them to inhuman and degrading treatment, contrary to Article 3 of the European Convention on Human Rights ('the Convention'). They also allege that this refusal is in breach of Article 3 § 2 of Protocol No. 4 (“No one shall be deprived of the right to enter the territory of a State of which he is a national”) to the Convention. Relying on Article 3 § 2 of Protocol No. 4 taken together with Article 13 (right to an effective remedy), they complain about the absence of an effective remedy by which to challenge the respondent Government’s refusal to repatriate their family members.
The cases of H.F. and M.F. v France and J.D. and A.D v France were assigned to the Court’s Fifth Section, which joined the two cases and relinquished jurisdiction in favour of the Grand Chamber on 16 March 2021.
By letter dated 16 June 2021, Rights and Security International ('RSI') was granted leave to intervene in the above joined cases before the Grand Chamber.
RSI's intervention in the case
RSI's intervention comprises two submissions which respond to key issued raised in Question 3(a), as directed by the Fifth Section to the parties. Our submissions below may also be relevant to aspects of Question 1, which concerns jurisdiction.
Question 3(a) asks: ‘[S]hould it be considered that L and her children are confronted with treatment contrary to Article 3 of the Convention and that the French authorities owe an obligation to repatriate them? The parties are invited to distinguish in their responses the situation of L from that of her children.’
RSI's first submission provides the Court with a fact-based legal analysis of conditions in and treatment of those living in al Hol camp, concluding that the conditions and treatment rise to at least the level of inhuman or degrading treatment or punishment prohibited by Article 3 of the ECHR.
RSI's second submission provides the Court with an analysis of the potential rights implications of attempting to distinguish the situation of adult women in the camp from that of minor children, as the Fifth Section invited the parties to do in its Question 3(a). We conclude that, whilst an individualised assessment of rights held and obligations owed is appropriate in these joined cases, as in most others, in these instances the rights of the minor children and the situation of the adult women are interdependent. We also conclude that to fully respect the rights and human dignity of the applicants’ adult daughters under the Convention, the Court’s analysis should take full account of the freestanding rights held by the applicants’ adult daughters not solely as a result of their status as mothers, but also as individuals experiencing or at risk of experiencing serious rights violations.
The status of the case
The Court will be holding a hearing in this case on 29 September 2021.
What does this mean for our work?
For the past 20 months, RSI has monitored and documented conditions in al Hol and Roj camps in the northeast area of Syria, including the specific human rights concerns arising therein. Our research and analysis have also taken particular account of factors related to gender or having a distinct impact on children. This intervention contributes to our ongoing advocacy on the need for repatriation of foreign nationals held in the northeast area of Syria.
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