Children’s detention in Iraqi prisons and Syrian camps
Since four years ISIS’s attacks have decreased, however the number of Children detained in Iraqi prisons increase drastically. The main reason relies on the fact that children are treated as criminals, since the minimum age to engage criminal responsibility is nine years old. In addition of the extreme young age of the accused, they are often charged of terrorism without evidence or coerced ones. It become practice for the Iraqi police to torture children in order to get a confession, which then will be used by the tribunal to convict them. Even if the armed conflict taking place in the region is deemed internal and thus only national laws apply, Iraq is still bound by international human rights law. Besides, Iraqi law does not provide for detention only because family members are involved with a terrorist group, which is the only primary motive to arrest those children.
As for Iraq’s international obligations, it ratified the UN convention on the Right of the Child in 1994, which among others prohibits torture and ill-treatment on children accused and require that detention is considered in last resort. Because the best interest of the child shall always come first, Iraq shall focus also on its obligation of providing children with physical, psychological recovery and their reintegration.
Nevertheless, Iraq is in breach with its obligations, children are put in prisons where they suffer from poor conditions of detention, since prisons are often overcrowded and children are incarcerated with adults. Moreover, children are deprived of their time out of the cell or of any activities, including education.
Furthermore, another set of actors are failing to meet their international obligations and it is the children’s nationality state. Indeed, the convention against torture prohibits torture and ill-treatment and define these actions as jus cogens crimes. Those states shall intervene by requring Iraq to comply with its commitments or even better, could repatriate those children. All minimum standards human rights (fair trial, not being tortured, human detention’s conditions) benefit from extraterritoriality, meaning that despite the sovereign right of a state to adjudicate under its national law, due to the gravity of the crimes committed, other states can act in order to put an end to such atrocities.
Therefore, it is obvious that those conditions of prosecution and detention only serve to stigmatize children who often did not choose their affiliation to ISIS and only know a life under ISIS ruling, which could at the end provocate hatred against Iraq or other countries. Iraq should strive for reintegration’s program with the help of the UN, instead of prisons in order to seek children’s best interest. In addition Iraq, shall amend its law by withdrawing the criminalization based on a mere membership to ISIS for such vunerable category of people, raise the minimum age of criminal responsability to at least twelve years old and lastly, actions shall be taken in order to confirm that torture occured to get a testimony, which would dismiss any charge.
This grave violation of children’s rights can also be observed in Syria, where camps have been set up, in order to prevent the escape of the ISIS members and waiting for their nationality’s state to repatriate them. This is not appropriate living conditions for children, who in these camps still live under ISIS rules, get more radicalized and are confronted every day to violence. Children are only waiting to be in age of being moved to secure detention centers, away from their family. Therefore, children undergoing such dire conditions are victimized twice, they were first compelled to join ISIS with all the violence surrounding it and then because of their affiliation they end up into prisons with no real perspective of insertion and integration to the society. The urgency of the situation does not leave the space for reflexion, but to action by their nationality’s state, including repatriation.
The need for repatriation
The first assertion that need to be reminded is that children did not choose their situation they were either too young and taken by their parents joining ISIS, or were born inside ISIS. However, nationality’s states do not seem to be eager to comply with their commitments. It is convenient for them to forget that children’s lives and thus future are at stake. However, many international documents provide for the right to return to its country of nationality. (Article 13(2) UDHR, art 12(4) ICCPR, HRC general comment 27)
Most of the states are reluctant to repatriate their children, since following the logic of the best interest of the child, they should be around of their family, so it means that children’s parents would have to be repatriated as well. However, the situation of the parents is different since a choice and actions have been made. Nonetheless, repatriation does not mean impunity and it is. rather the opposite since it is the return to their home country, which will bring them to justice. However, it is hard for the proseuctor and then judges to concretely define what crimes have been committed back there. Therefore, nationality’s states then fear that the parents walk free in their streets.
Nevertheless, the best interest of the child has to be the cornerstone, and the primary needs of a child is to be away from any armed conflicts, violence and be integrated into a society and receive education. Some european countries repatriated some children, such as Sweden , Germany and Belgium. However, children are often seen as perpetrators, whereas they are first victims. For example, Belgium considers children under ten years old as victim but above as potential terrorists.
For sure the security within states’ territory shall not be neglected, but children require special attention. Therefore, no one should attest that children above a certain age are perpetrators, a case by case analysis can be conducted without forgetting their vulnerability and keeping in mind their status of victims.
Yet, it is possible to conduct optimal repatriation process, such as Kazahstan does. In order to do so, it enhanced collaboration with international actors in order to localize and identify its nationals to enable the extraction. It succeeded to provide a safe return home by using transit points, benefiting from US assistance in the transport and providing medical assistance at all stages. It is therefore possible to repatriate its nationals, it only require willingness and commitment by the nationality’s states.
Bibliography
BBC ‘Hundreds of choldren held in IS in besieged prison in Syria’ <https://www.bbc.com/news/world-middle-east-60091586> accessed on the 22nd of February 2022
BBC The Children of IS: „It’s a disaster we cannot deal wiht”’ <https://www.bbc.com/news/world-58888364> accessed on the 22nd of February 2022
Euronews ‘What is Europe’s approach to repatriating ISIS members?’ <https://www.euronews.com/2019/03/07/what-is-europe-s-approach-to-repatriating-isis-members-euronews-answers> accessed on the 24th of February 2022
Francesca Capone ‘The Children (and wives) of Foreign ISIS fighters: which obligations Upon the States of nationality? <http://www.qil-qdi.org/wp-content/uploads/2019/09/05_Child-Soldiers_CAPONE_FIN-2.pdf> accessed on the 23rd of February 2022
Human Rights Watch ‘„Everyone must confess”: abuses against Children Suspected of ISIS affiliation in Iraq’ <https://www.hrw.org/sites/default/files/report_pdf/iraq0319_web_1.pdf> accessed on the 24th of February 2022
Human Rights Watch ‘Iraq detains more than 1,000 Children as ISIS suspects’ <https://www.hrw.org/news/2022/02/17/iraq-detains-more-1000-children-isis-suspects> accessed on the 22nd of February 2022
Just Security ‘Time to bring Women and Children Home from Iraq and Syria’ <https://www.justsecurity.org/64402/time-to-bring-women-and-children-home-from-iraq-and-syria/> accessed on the 22nd of February
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By The European Institute for International Law and International Relations.
