The case of F.B. and Others and D.A. and Others v. France. Views of the Committee on the Rights of the Child dated February 8, 2022. Messages N 77/2019, 79/2019, 109/2019.
In 2019, the authors of the communication were assisted in preparing complaints. Subsequently, the complaint was communicated to France.
In the opinion of the Committee on the Rights of the Child, the State party's refusal to protect child victims who were French citizens and in camps in the Syrian Arab Republic constituted a violation of their rights under articles 3 and 37 of the Convention on the Rights of the Child and that the State party's refusal to protect child victims from an imminent and foreseeable threat to their lives It also constitutes a violation of article 6, paragraph 1, of the Convention.
As could be seen from the text of the Considerations, the authors of the communications were French citizens, with the exception of F.F., a person who is an Algerian citizen and lives in France. All the victims were children of French citizens - members of the authors' families who ended up on the territory of the Syrian Arab Republic. Some of these children were born in the Syrian Arab Republic, while others arrived there at a very young age with their parents. At the time of the events in question, they were being held in separate camps in the north-east of the country. The authors claimed that the State party had not taken the necessary measures to repatriate the children to France, which, in their opinion, was a violation of the articles 2, 3, 6, 19, 20, 24 and 37 of the Convention on the Rights of the Child (paragraph 1.2 of the Views).
Legal positions of the Committee: There are obligations of States parties to take positive measures for the full realization of the rights of every child under their jurisdiction, in accordance with article 4 of the Convention on the Rights of the Child. The Committee considers that these obligations are reinforced when it comes to protecting children from abuse and risks to their right to life (paragraph 6.6 of the Views).
The State party has a positive obligation to protect these children from the imminent risk of violation of their right to life, as well as from the actual violation of their right not to be subjected to cruel, inhuman or degrading treatment (paragraph 6.9 of the Views).
The best interests of the child should be the primary consideration in all decisions affecting children. The Committee on the Rights of the Child also refers to paragraph 18 of its general comment No. 14 (2013), which mentions that omission or non-performance of actions, as well as abstention from action, are also considered "actions" (paragraph 6.10 of the Views).
The Committee's assessment of the factual circumstances of the case: it was necessary to determine whether, given the circumstances of the case, the State party's failure to take measures to protect child victims held in camps in the territory of the Syrian Arab Republic violated their rights under the Convention. In particular, the authors alleged that, in violation of the Convention on the Rights of the Child, the State party had failed to repatriate the children as the only possible measure to provide them with the necessary care, guarantee their right to life and development and protect them from arbitrary detention and ill-treatment (paragraph 6.2 of the Views).
In its Decision on the admissibility of these communications dated 4 February 2021, the Committee on the Rights of the Child drew attention to the following legal positions. According to the Convention on the Rights of the Child, States are obliged to respect and ensure the rights of children within their jurisdiction, but the Convention does not limit the jurisdiction of a State to a territory. In addition to the effective control that a State can exercise over territory or persons outside its borders, it can exercise jurisdiction over actions that take place or have direct and predictable consequences beyond national borders. In the context of migration, the Committee decided that, in accordance with the Convention, States should assume extraterritorial responsibility for the protection of children who are their nationals outside their territory, acting through a consular protection mechanism, taking into account the interests of children and respecting their human rights. In the case of "S.E. v. Belgium "The Committee considered that Belgium had jurisdiction to ensure the rights of a child living in Morocco who had been separated from a Belgian-Moroccan couple who had taken him into care under the Kafala system" (paragraph 8.6 of the Decision of the Committee on the Rights of the Child of 4 February 2021 in the case of F.B. and Others and S.B. and others against France." Messages N 77/2019, 79/2019, 109/2019).20. "The State party, as the State of which the children are citizens, has the ability and authority to ensure the protection of the rights of the children concerned by taking measures to repatriate them or provide them with consular support" (paragraph 8.8 of the Decision of the Committee on the Rights of the Child of February 4, 2021 in the case F.B. and Others and S.B. and Others v. France". Messages N 77/2019, 79/2019, 109/2019).
The Committee noted the conflicting arguments of the parties regarding the existence in public international law or international human rights law of an obligation to repatriate citizens or the content of the concept of "consular assistance" that a State should provide to its citizens located outside its territory. However, it remains an open question for the Committee whether, in the specific context of the communications, the State party has taken all necessary measures, guided by the principle of the best interests of the child as a primary consideration, to implement the rights recognized in the Convention and guarantee them to child victims under its jurisdiction (paragraph 6.3 of the Views).
The Committee took note of the State party's argument that it does not have the capacity to repatriate children, which depends not only on the will of the State party, but also on the consent of the authorities of north-eastern Syria and the mothers of the children, and which is hampered by obstacles related to the identification of children and the safety of such operations. In the present case, the Committee reiterated its finding of admissibility in the sense that, by virtue of the State party's connection with the nationality of children held in camps, the information it has on children with French nationality who were in camps, and its connection with the Syrian authorities, the State party has the ability and authority to protect the rights of children, those in question, through the adoption of measures for their repatriation or other consular measures. This possibility was evidenced by the fact that the State party has already successfully repatriated more than 30 French children without reporting any incidents during these repatriations or the refusal of cooperation by the authorities (paragraph 6.4 of the Views).
The Committee also took into account the authors' argument that the child victims, most of whom were infants, barely managed to survive in prison camps where they were held while in a war zone, lived in inhumane sanitary conditions and were unable to meet their basic needs, including access to water, food and medical care which put their lives at imminent risk. The State party argued that the authors did not demonstrate that the children referred to in the communications were exposed to specific risks, but only mentioned the general situation in these camps. However, the Committee noted that the described circumstances related to safety, restriction of movement and health conditions apply to all children held in camps, including child victims who cannot escape the conditions of detention and living conditions applicable to other camp residents. The Committee considered that the harm had been sufficiently determined and that there was no reason to believe that the children specifically named in these reports were at lower risk than other camp residents (paragraph 6.5 of the Considerations).
The Committee noted that the situation of immediate risk to the lives of children held in camps in the Syrian Arab Republic had been reported in several international reports. This situation was well known to the State party, which on its own initiative decided to repatriate several of these children (paragraph 6.6 of the Views).
With regard to article 6 of the Convention on the Rights of the Child, the Committee took note of the authors' evidence-based arguments that many children living in the camps had died, such deaths continued to occur, and that the conditions described, including lack of food and water, posed an imminent and foreseeable threat to the lives of all children held in the camps. camps. The Committee stressed that the State party had not denied the living conditions in the camps described by the authors and a third party. In the light of the above, the Committee considered that information was available to establish that the conditions of detention posed an imminent and foreseeable threat to the lives of child victims and the State party's failure to protect them constituted a violation of article 6 of the Convention (paragraph 6.7 of the Views).
With regard to the authors' allegations regarding article 37 of the Convention, the Committee considered that there was evidence that the prolonged detention of child victims in camps in the described conditions, including, in particular, lack of medical care, food, water, sanitation and educational opportunities, affected their development and constituted cruel, inhuman or degrading dignity, treatment or punishment in violation of article 37 of the Convention (paragraph 6.8 of the Views).
The Committee's conclusions: The State party's refusal to protect child victims constituted a violation of their rights under articles 3 and 37 of the Convention and that the State party's refusal to protect child victims from an imminent and foreseeable threat to their lives constituted a violation of article 6, paragraph 1, of the Convention (paragraph 6.11 of the Views).