C.P. et al. v. France

The complainants are C.P., acting on behalf of her daughter L.V. (1994)⁴ and her grandson A.B.V. (2017); A.K., acting on behalf of his sister R.K. (1985), his niece A.K. (2015) and his nephew O.K. (2017); I.S., acting on behalf of his daughter A.S. (1987) and his grandchildren S.S. (2008), N.S. (2010) and M.S. (2016); L.R., acting on behalf of her sister A.R. (1991), her nephew A.L. (2014) and her niece A.L. (2016); and P.M. and L.M., acting on behalf of their grandchildren Y.M. (2014), S.M. (2016) and J.M. (2018).

4. The victims’ initials are followed by their year of birth in brackets. ↩

The complainants are nationals of France, apart from I.S., who is a national of Italy.⁵ The victims are all French nationals – relatives of the complainants – who are alleged to have collaborated with Da’esh. They are currently being held in the Hawl camp in the north-east of the Syrian Arab Republic, which is under the control of the Syrian Democratic Forces. The complainants claim that, by refusing to repatriate their relatives, the French authorities are failing to protect French nationals detained in the Syrian Arab Republic and to put an end to their ill-treatment. The State party is putting the complainants’ relatives at risk of a serious and irreparable violation of their Convention rights. The complainants therefore consider that this refusal by the French authorities constitutes a violation of article 2 of the Convention, read in conjunction with article 16. The State party made the declaration under article 22 (1) of the Convention on 23 June 1988. The complainants are represented by counsel.

5. However, his daughter and grandchildren are French nationals. ↩

On 29 March 2019, 18 October 2019 and 24 March 2020, the Committee, acting through its Rapporteur on new complaints and interim measures, rejected the request for interim measures submitted by the complainants, who were seeking to have their relatives repatriated to France. On 18 October 2019, however, the Committee requested the State party to take the diplomatic measures necessary to protect the right to life and integrity of the complainants’ relatives, including by ensuring that they have access to any medical care that they may need and that their right to a fair trial is fully protected. On 24 March 2020, the Committee requested the State party to take all necessary consular measures to grant the complainants’ relatives every administrative authorization, identity document and travel document needed for their repatriation, whether organized by the Government or by a humanitarian organization, and to take all other relevant measures reasonably within its power to actively protect their physical and mental integrity, including measures to ensure their access to the medical care that they require.

L.V. left France for the Syrian Arab Republic on 7 November 2015. There, she married T.D., who died in combat. L.V. and her son A.B.V. have been held in the Hawl camp since February 2019. L.V. is suffering from malnutrition and weighs only 30 kg. Her child, who is also malnourished, spends all day without moving, in a state of deep despondency, staring blankly into space as if in a daze. The violence to which this 2-year-old child has been exposed appears to have had a profound physical and psychological effect on him.

R.K. went to the Syrian Arab Republic in June 2014. There, she got married and gave birth to two children, A.K. and O.K. In August 2018, she asked to be repatriated to France along with her children. All three have been detained in the Hawl camp since 27 February 2019. R.K. spent time with another detainee who recently died of tuberculosis and she believes that she now has the disease. Her health is deteriorating day by day and she is not receiving any care. Neither she nor her two children have sufficient access to food and water. The younger child has dysentery and has been defecating blood for several days. He is no longer strong enough to walk and spends all day in his mother’s arms. Her daughter, who is 4 years of age, has had contact with children suffering from cholera and her mother fears that she too may have the disease. The children have not been washed for weeks as there is not enough water for all the detainees. R.K. told her brother that, just a few days beforehand, she had been robbed by a Kurdish camp guard while she was holding her son.

A.S. went to the Syrian Arab Republic in 2014 with her husband and their two children, who were 3 and 6 years old at the time. On 15 July 2016, A.S. gave birth to a third child. A.S. is the subject of an international arrest warrant issued by an investigating judge of the Paris Tribunal de Grande Instance (court of major jurisdiction). She has been in the Hawl camp with her three children since 3 March 2019.

R.K. and A.S. are living in a tent with other women and children. The camp’s sanitary facilities are no longer accessible and it is necessary to queue for several hours to obtain water. The children have not been washed for months and are not receiving any care, despite their being in a particularly troubling psychological and psychiatric state. Two of R.K.’s and A.S.’s children appear to be infected with leishmaniasis.⁶ The youngest of the five children has an extremely worrying cough and there is a high level of damp inside the tent, as it consists of a single sheet of canvas that is not covered by a protective tarpaulin, so water seeps inside, the beds are wet and the ground is soaked. There is a six-hour plus wait for the infirmary and no medication is administered, not even paracetamol.

6. The complainants do not specify which two children. ↩

A.R. went to the Syrian Arab Republic in 2015 with her husband and their little boy, A.L., who had been born in France in 2014. In 2016, she gave birth to a second child, A.L. Her husband died during her second pregnancy. She and her two children have been held in the Hawl camp since 7 March 2019.

After converting to Islam at the Villeneuve d’Ascq Islamic Centre on 9 November 2011, J.M. moved to Leipzig in Germany for her studies. In 2013, she and M.L., a German national who had converted to Islam, married in a religious ceremony. Their son Y.M., a French national, was born in Leipzig in 2014. The couple and their child left Germany for Raqqah in the Syrian Arab Republic in November 2014. J.M. gave birth to S.M. in 2016 and to J.M. in 2018. On 3 February 2019, J.M.’s parents – the complainants P.M. and L.M. – learned that their daughter had died. M.L. was arrested by the Syrian Democratic Forces and is currently being held in Qamishli prison in the north-east of the Syrian Arab Republic. In February 2019, P.M. and L.M. learned that their three grandchildren were in the Hawl camp.

In a series of articles on children detained in camps in the north-east of the Syrian Arab Republic, the newspaper Libération mentioned the case of J.M. and S.M., whose state of health was very concerning. J.M. had been hit by shrapnel, his right leg was stiff and thin, and he had visible facial injuries. S.M., meanwhile, was suffering from very worrying stomach pains. In addition to being malnourished and lacking medical care, Y.M., who was with one of M.L.’s wives, was being abused by her. Another article indicated that the three children were languishing in the cold and mud of the Syrian camps.

In a press release dated 31 January 2019, the World Health Organization reported that 29 children and newborns had died in the Hawl camp within a two-month period, mainly from hypothermia.

On 4 March 2019, the International Committee of the Red Cross in the Syrian Arab Republic reported that the nights were freezing in the Hawl camp, that around 20 children had died of cold, and that some children did not even have tents and were left outside in the rain, wind and cold. It expressed deep concern for the children living in the camps.

On 14 March 2019, the newspaper Le Monde published a photo report depicting the deplorable conditions in which women and children were being detained in the Hawl camp. These photographs show crying, mutilated, gaunt and dirty children, crammed into makeshift tents. Today, the camp is estimated to contain more than 62,000 people, 90 per cent of whom are women or children. These French children, the vast majority of whom are under 6 years of age, lack health care, water and food. For more than 18 months, no repatriations have been organized by the French authorities. The Syrian Democratic Forces have repeatedly stated that they do not have the means to treat, feed and care for the French women and children held in the Rawj and Hawl camps.

With regard to the exhaustion of domestic remedies, the complainants state that, according to established case law, the decision of the Government of the State party as to whether to repatriate the French children currently detained in the north-east of the Syrian Arab Republic is intrinsically bound up with the country’s foreign affairs. As a prerogative act, the decision is not subject to appeal before the French courts, which routinely consider themselves to lack jurisdiction in this area.⁷ In a similar case, the Paris Administrative Court has already issued an order establishing that such decisions, rather than being the administrative responsibility of the State, are a diplomatic matter and can be considered a prerogative act.⁸

7. For a discussion of the established case law of the national courts, see Council of State, Mégret and Mekhantar, complaints No. 206303 and No. 206965, decision, 5 July 2000. ↩
8. The file contains the interim order of the Paris Administrative Court declaring that it lacks jurisdiction. ↩

In March 2019, the complainants applied to the President of the Republic and the Ministry for Europe and Foreign Affairs to have their relatives repatriated. These applications were rejected or received no response. Moreover, the State party recently stated publicly that it refuses to repatriate children and their mothers who are currently detained in camps in the north-east of the Syrian Arab Republic and it has not responded positively to any of the requests for repatriation that it has been receiving for more than a year from many of the families concerned. In early 2019, the French authorities announced that they would repatriate 130 French nationals, including 70 children, who had been identified by the authorities.⁹ This announcement was never acted on and no explanation for the volte-face was given. On 14 March 2019, at a hearing of the European Affairs Committee of the National Assembly, the Minister of State for the Interior stated that “the Syrian Democratic Forces have decided that the children should stay with their mothers so, for the time being, no returns are being envisaged”.¹⁰

9. Éric Pelletier, “Paris jugera les djihadistes expulsés de Syrie”, Le Parisien, 29 January 2019. ↩
10. Léa Stassinet and Agence France-Presse, “Enfants de jihadistes français en Syrie: ‘Pas de retour envisagé pour l’instant’, dit Nuñez”, RTL, 14 March 2019. ↩

The decision on whether to repatriate the children being held in camps in the north-east of the Syrian Arab Republic is a prerogative act and therefore any actions brought before the administrative courts are rendered ineffective and moot. This means that the complainants are facing an insurmountable procedural impediment.¹¹

11. Ali v. Tunisia (CAT/C/41/D/291/2006), para. 12.3. ↩

The complainants report that their relatives are being detained without any legal authority and therefore arbitrarily, since no legal action has been taken against them by the Syrian authorities. French children, some of whom are orphans, are stranded in the north-east of the Syrian Arab Republic, arbitrarily detained in camps guarded by the Syrian Democratic Forces, in the middle of a war zone. They are not being protected by the French authorities and are surviving as best they can in appalling sanitary conditions.

The complainants consider that their relatives in the Hawl camp are being subjected to treatment that falls within the scope of the Convention and is in violation of it. Under article 2 of the Convention, States parties are required to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under their jurisdiction.

Firstly, it is the responsibility of every State party to take all necessary measures to put an end to situations that are in violation of the Convention. It is true that article 2 of the Convention refers to States’ jurisdiction in terms of territory. However, the interpretation of the Convention set out by the Committee in its general comment No. 2 (2007) provides a basis for a broader understanding of the concept of jurisdiction in that it affirms that States should also take steps to prevent violations of the rights of persons over whom they exercise jurisdiction, including personal jurisdiction. Thus, article 2 must be interpreted as imposing an obligation on States to take such measures as may be necessary to put an end to any form of treatment of their nationals that is prohibited under the Convention.

Furthermore, under article 2, States parties have a positive obligation to use every possible means to prevent acts of torture. This obligation, when considered in conjunction with article 16 of the Convention, extends to cruel, inhuman and degrading treatment that does not amount to torture¹² and requires States parties to remove all legal obstacles that would place a person at risk of treatment prohibited by the Convention.

12. Committee against Torture, general comment No. 2 (2007), para. 3. ↩

By refusing to repatriate French nationals who are victims of treatment prohibited by the Convention and are clearly at risk of torture, the State party is in breach of its obligations under article 2 of the Convention, read in conjunction with article 16. The complainants request the Committee to take urgent protective measures and to find that the refusal to repatriate French nationals who are being subjected to treatment prohibited by the Convention and who face a risk of torture constitutes a violation of articles 2 and 16 of the Convention by the French authorities.

On 19 December 2019, the State party challenged the admissibility of the complaint for its being manifestly unfounded, with respect to the claims made by P.M. and L.M.; for lack of standing, with respect to the claims made by C.P., A.K., I.S. and L.R.; and for lack of jurisdiction.

Firstly, the State party notes that Y.M., S.M. and J.M. – the grandchildren of P.M. and L.M. – were repatriated in March 2019.

Secondly, the State party notes that the complainants have failed to produce family record books demonstrating their ties of kinship to, at the very least, the mothers of the children who are the subject of the present complaint. Furthermore, the complainants have not shown that they acted with the consent of the minors or of their mothers.

Lastly, the State party considers that the mothers and children who are being held in the north-east of the Syrian Arab Republic are not under its jurisdiction. Article 2 of the Convention refers only to the concept of jurisdiction, which is by no means the same as the concept of nationality. States have undertaken to respect the rights set forth in international human rights instruments, of which the Convention is one, only in the case of situations that fall within their jurisdiction and over which they exercise sovereignty and effective control. It is not possible to render a State responsible for the implementation of international human rights instruments in situations to which it has not given rise and over which it has no effective control simply by attributing to it the actions of other States or non-State actors. The Committee should bear in mind, on the one hand, what States undertake to do when they assume the obligation of adopting legislative, administrative, judicial and other measures to prevent the commission of acts of torture in any territory under their jurisdiction and, on the other hand, the consubstantial links between the concepts of jurisdiction and effective control. It is also not possible to artificially expand the concept of jurisdiction and thus give the Convention broader scope than States understood it to have when they ratified it.

The State party notes that, in public international law, the concept of jurisdiction is primarily a territorial one; it is only in exceptional circumstances – i.e. when a State exercises effective control over a person located in another territory – that a State may exercise jurisdiction beyond its borders under the Convention.¹³ The State party notes that the Committee has, on these grounds, found other complaints dealing with acts committed outside the territory of a State party by agents of another State to be inadmissible ratione personae.¹⁴

13. Vienna Convention on the Law of Treaties, art. 29; European Court of Human Rights, Banković and Others v. Belgium and Others, Application No. 52207/99, decision on admissibility, 12 December 2001, paras. 59 ff.; and European Court of Human Rights, Al-Skeini and Others v. the United Kingdom, Application No. 55721/07, Judgment, 7 July 2011, paras. 138 ff. See also Committee against Torture, general comment No. 2 (2007), para. 16; joint general comment No. 3 of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families/No. 22 of the Committee on the Rights of the Child (2017), para. 12; and Human Rights Committee, general comment No. 31 (2004), para. 10. ↩
14. Z. v. Australia (CAT/C/53/D/511/2012); Agiza v. Sweden (CAT/C/34/D/233/2003); and Roitman Rosenmann v. Spain (CAT/C/28/D/178/2000 and CAT/C/28/D/176/2000/Corr.1), para. 6.6. ↩

The State party notes that, in the Committee’s general comment No. 2 (2007), the Committee recognizes that “territory” includes all areas where a State exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law.¹⁵ The Committee also considers that the scope of “territory” under article 2 must include situations where a State party exercises, directly or indirectly, de facto or de jure control over persons in detention,¹⁶ although it does not give criteria for determining when a State party has effective control over a territory or over persons in detention.

15. Committee against Torture, general comment No. 2 (2007), para. 16. ↩
16. Ibid. ↩

The State party notes that the European Court of Human Rights has found that a State party may exercise effective control over an area outside its own territory either directly through its armed forces or indirectly through a local subordinate administration.¹⁷ However, in order for a State to bear responsibility for a human rights violation committed in a territory that is not its own, it must be established that the State wields so decisive an influence over the administration of that territory that it does indeed exercise effective control and that, without its support, the local administration could not function.¹⁸ The International Court of Justice has developed a similar concept of extraterritorial jurisdiction based on effective control.¹⁹ Lastly, the Inter-American Commission on Human Rights has found that extraterritorial jurisdiction may be present when a State party, through the acts of its agents abroad, exercises total and exclusive control over the persons whose rights are at issue.²⁰

17. European Court of Human Rights, Al-Skeini and Others v. the United Kingdom, Application No. 55721/07, Judgment, 7 July 2011, para. 139. ↩
18. European Court of Human Rights, Ilaşcu and Others v. Moldova and Russia, Application No. 48787/99, Judgment, 8 July 2004, para. 392; and European Court of Human Rights, Mozer v. the Republic of Moldova and Russia, Application No. 11138/10, Judgment, 23 February 2016, para. 110. ↩
19. International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, paras. 109–112. ↩
20. Inter-American Commission on Human Rights, Report No. 17/12, Petition P-900-08, Djamel Ameziane v. United States, 20 March 2012, para. 30. ↩

The State party submits that, in the light of this jurisprudence, the complainants’ argument that the State party has an obligation under the Convention to protect its nationals outside the “territory under its jurisdiction”, by virtue of their French nationality, is not in accordance with either the letter or the spirit of the Convention. According to the State party, general comment No. 2 (2007) does not by any means extend the scope of the Convention to all nationals of the State party. It indicates only that States bear responsibility for the acts and omissions of their officials and that States parties should take effective measures to prevent acts of torture not only in their sovereign territory but also in any territory under their jurisdiction. The State party also contends that article 5 (1) (c) of the Convention, which refers to the concept of “jurisdiction”, is intended to ensure the punishment of the violations covered by article 4 and the provision of a remedy for the victim but that it does not extend the jurisdiction of a State party within the meaning of article 2 of the Convention to all its nationals located outside its territory or in a territory not under its effective control.

Consequently, the complainants cannot infer from article 5 of the Convention that an individual falls within the jurisdiction of a State party merely because he or she is a national of that State, nor can they infer that States parties are obliged to take all necessary measures to prevent acts of torture against their nationals in cases where such persons are not under their effective control.²¹

21. According to the State party, the complainants are confusing the concept of personal jurisdiction with that of extraterritorial jurisdiction. ↩

In conclusion, the State party does not exercise any control or authority over the relatives of the complainants through its agents, nor does it exercise any territorial control over the camps in the north-east of the Syrian Arab Republic.

On 29 June 2020 and 23 June 2021, the State party submitted its observations on the merits of the communication. The State party asserts that it cannot be concluded from either the Convention or the work or Views of the various United Nations committees that States parties have a positive obligation to repatriate their nationals who may be at risk of inhuman or degrading treatment. The European Court of Human Rights has not made reference to any such obligation either. In practice, such an obligation would conflict with the principle of the sovereignty of the States in which violations are allegedly being committed. It would also go beyond the commitment that States intended to make when they ratified the Convention, which cannot be interpreted in that way. Such an obligation would also be at odds with the approach adopted by the Committee in recognizing that States parties may use their discretion in assessing the de facto situations of their nationals.²²

22. Roitman Rosenmann v. Spain, para. 6.7. ↩

It does not follow from customary international law, international case law or the Vienna Convention on Consular Relations of 1963 that States have an obligation to repatriate their nationals, including when they are likely to be subjected to inhuman or degrading treatment abroad. While repatriation may, in certain circumstances, be one of the ways in which consular assistance is provided, it is by no means an obligation for the sending State. The fact that the vast majority of States members of the Council of Europe are not taking steps to repatriate their nationals shows that there is a consensus on this matter, for if they were under such an obligation, they would all have opened negotiations to that end. Furthermore, neither the Council of State nor the Constitutional Council has found that the State party has any such obligation under domestic law. In any event, if the Committee were to find that the State party had an obligation to repatriate its nationals, this could only be understood to mean an obligation of conduct.

The State party recalls that it has repatriated more minors – 35 French minors in total – than any other country in Western Europe and that it is actively contributing to the humanitarian response in support of displaced persons and refugees in the north-east of the Syrian Arab Republic.

The State party emphasizes that, to date, the complainants have not provided any evidence that their relatives are at risk of being subjected to violations of the Convention. The complainants themselves are finding it difficult to locate some of their relatives²³ and they have not provided any recent evidence that their relatives are still being held in the Hawl camp.

23. The State party, for its part, declares that it has no additional information on their location. ↩

Lastly, contrary to what the Committee on the Rights of the Child stated in its decisions on the admissibility of three similar communications concerning France,²⁴ the State party does not in any way have the “capability” to carry out the repatriations requested by the complainants. The repatriation of their relatives does not, as they claim, depend solely on the willingness of the Government of the State party to take action but on many factors, including the consent of the authorities in the north-east of the Syrian Arab Republic, who are detaining them;²⁵ the consent of the mothers to the repatriation of their children;²⁶ the difficulties encountered by the Syrian Democratic Forces in identifying and locating foreign nationals; the fact that the French nationals who are being held in the Rawj camp are under the control not of a sovereign State but of de facto authorities, which means that the mothers cannot be extradited; and the complexity and dangerousness of such missions, which naturally depend on the relations that each State has with the various actors in the armed conflict that continues to rage in the north-east of the Syrian Arab Republic. Members of Da’esh hiding within the camp itself pose a security risk for repatriation operations. Several members of the camp’s internal security forces (Asayish) and several humanitarian workers have been murdered inside the camp in recent months.

24. S.H. et al. v. France (CRC/C/85/D/79/2019-CRC/C/85/D/109/2019); and S.B. et al. v. France (CRC/C/86/D/R.77/2019). ↩
25. In order to hand over the persons concerned, the authorities would need to issue an administrative expulsion order, but the State party has not had diplomatic or consular representatives in the Syrian Arab Republic since 2012. ↩
26. The State party’s position is that the complainants’ daughters and sisters should be tried locally. However, the children concerned will be repatriated if their mothers agree and if conditions allow. ↩

In their comments of 20 March 2020, the complainants insist that the State party has exercised control over the mothers and children who are being held in the Hawl camp, where they are still being subjected to inhuman and degrading treatment, as the State party is well aware. By not taking any measures to put an end to this treatment, the State party has failed in its obligation to take effective measures to prevent treatment that is contrary to the Convention, in violation of articles 2 (1) and 16.

The complainants confirm that Y.M., S.M. and J.M. have been repatriated.

With regard to the alleged lack of standing in respect of C.P., A.K., I.S. and L.R., the complainants provide family record books demonstrating their ties of kinship to the mothers and children being held in the Hawl camp.

The complainants firmly reject the claim that the complaint is inadmissible for lack of jurisdiction. Article 2 of the Convention does not determine the general scope of all the rights enshrined in the Convention²⁷ but simply establishes that States parties have a positive obligation to prevent acts of torture committed in any territory under their jurisdiction. The French mothers and children being detained in the north-east of the Syrian Arab Republic fall under the jurisdiction of the State party within the meaning of article 22 of the Convention. First of all, contrary to the State party’s assertion, it is widely considered that a State exercises jurisdiction when a decision taken by its agents in national territory affects the legal situation of persons outside the territory.²⁸ According to the complainants, this is all the more true in situations where the State exercises personal jurisdiction over its nationals who are outside its national territory. For a national of a State who is outside the national territory to fall within the State’s jurisdiction, it is necessary for the State to have affected the legal situation of the person concerned through the acts or omissions of its agents.²⁹ In the present case, by deciding not to repatriate the French mothers and children who are being held in the north-east of the Syrian Arab Republic and who are, consequently, facing treatment that is contrary to the Convention, the State party has exercised its jurisdiction over them within the meaning of article 22 of the Convention.

27. As is the case for article 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) and article 2 (1) of the International Covenant on Civil and Political Rights. ↩
28. The complainants refer to jurisprudence of the European Court of Human Rights; see, for example, Drozd and Janousek v. France and Spain, Application No. 12747/87, Judgment, 26 June 1992, para. 91; Sejdovic v. Italy, Application No. 56581/00, Judgment, 1 March 2006; and Stephens v. Malta (No. 1), Application No. 11956/07, Judgment, 21 April 2009. ↩
29. Committee against Torture, general comment No. 2 (2007), para. 15. ↩

According to the complainants, it is clear that the detention of the French mothers and children in inhuman conditions in the Hawl camp is not, as the State party claims, a direct consequence of the control exercised by the authorities of the north-east of the Syrian Arab Republic over the camp and its inhabitants but rather has its sole origin in the measures taken exclusively by the French authorities, namely the decision not to repatriate them.³⁰ Only the State party has the power to authorize their repatriation and to end their arbitrary detention in the Hawl camp.

30. See European Court of Human Rights, Stephens v. Malta (No. 1), Application No. 11956/07, Judgment, 21 April 2009, para. 51. ↩

With regard to the merits, the complainants insist that the State party has failed to comply with its obligation under the Convention to put an end to the inhuman and degrading treatment to which their relatives are being subjected and has therefore violated articles 2 (1) and 16 of the Convention. Despite being fully aware of the commission of acts contrary to the Convention by non-State actors, the State party has decided not to repatriate the French mothers and children who are being detained in the Hawl camp – with the exception of several orphans in 2019 – even though it exercises control over their situation. The inhuman and degrading treatment suffered by the mothers and children concerned is mainly linked to the conditions of detention in the Hawl camp: overcrowding, disease, cold, malnutrition, unsanitary conditions and lack of health care. The Syrian Democratic Forces have repeatedly urged all States to repatriate their nationals and yet the State party has decided to let this ill-treatment continue by refusing to repatriate the victims. The complainants therefore accuse the State party of having taken no measures to put an end to the acts perpetrated against the victims by non-State actors operating in the Hawl camp. By refusing to take action, the State party has effectively exercised control over the victims’ situation.

On 9 March 2021 and 20 December 2021, the complainants reported that, on 13 January 2021, the State party had repatriated seven children from the Rawj and Hawl camps for medical reasons or on account of their particular vulnerability. The complainants also refer to the decisions of the Committee on the Rights of the Child on the admissibility of three similar cases involving France, in which the Committee found that the communications did indeed fall within the jurisdiction of the State party.³¹

31. S.H. et al. v. France (CRC/C/85/D/79/2019-CRC/C/85/D/109/2019); and S.B. et al. v. France (CRC/C/86/D/R.77/2019). ↩

The complainants explain that they are not arguing that the State party is under a pure and simple obligation to repatriate the victims but rather that it has a general obligation to implement the Convention, with regard to both acts of torture (article 2 (1)) and acts of inhuman and degrading treatment (article 16). This means that, although repatriation is not the subject of a specific obligation established by the Convention, it is the only way for the State party to fulfil its obligations under that instrument.

As for the whereabouts of their relatives, the complainants state that L.V. is in the Rawj camp with her son; R.K. was sent to Rojava prison following the repression of a protest within the camp, meaning that her two children have been left to fend for themselves in the Rawj 1 camp; A.R. and her two children are being held in the Rawj 2 camp; and A.S. is still with her three children in the Hawl camp. The complainants note that the State party does not expressly deny that their relatives are being subjected to acts of torture or cruel, inhuman or degrading treatment or punishment, since these acts are undeniable and have been widely documented by many national and international actors.

Lastly, the complainants allege a violation of article 22 of the Convention on the grounds that, although the Committee decided not to issue a request for interim measures, it nevertheless called on the State party to take specific measures (see para. 1.3 above). The State party has not taken any such measures and has therefore failed in its obligations under article 22 of the Convention.

On 4 November 2022, the complainants’ counsel confirmed that L.V. and her son A.B.V. had also been repatriated.

Before considering any claim submitted in a communication, the Committee must decide whether it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same matter has not been and is not being examined under another procedure of international investigation or settlement.

The Committee notes that the parties agree that Y.M., S.M. and J.M. – the grandchildren of P.M. and L.M. – were repatriated in March 2019. It also notes that the complainants’ counsel has confirmed that L.V. and A.B.V. were repatriated in late 2022. In the light of this information, the Committee considers that the communication has become moot and that its consideration should be discontinued insofar as it relates to the State party’s failure to repatriate Y.M., S.M., J.M., L.V. and A.B.V.

The Committee notes that the State party has contested the admissibility of the complaint on the grounds of a lack of authorization. It notes, however, that the complainants subsequently submitted copies of their family record books demonstrating their ties of kinship to the persons being held in the north-east of the Syrian Arab Republic. Consequently, given that the circumstances in which the complainants’ relatives find themselves do not afford them a realistic opportunity to provide written authorization and since the present complaint was clearly submitted with the aim of enabling them to return to France, the Committee is of the view that it is not prevented by rule 113 (a) of its rules of procedure from considering the present complaint.³²

32. H. v. France (CAT/C/73/D/933/2019), para. 7.2. ↩

Lastly, the Committee notes that the State party is challenging the admissibility of the communication on the grounds that the complainants’ relatives being held in the north-east of the Syrian Arab Republic are not under its jurisdiction. On the one hand, the State Party maintains that it does not have effective control over the camps in the north-east of the Syrian Arab Republic, nor does it exercise any control or authority over the complainants’ relatives through its agents. The State party also rejects the idea that it has an obligation under the Convention to protect its nationals on the basis of their nationality, even outside the territory under its jurisdiction.

On the other hand, the complainants argue that their relatives fall under the jurisdiction of the State party within the meaning of article 22 of the Convention. The complainants insist that, even though their relatives are outside national territory, as nationals, they fall within the State party’s jurisdiction insofar as the acts or omissions of its agents affect their legal situation. In the present case, the complainants claim that, by refusing to repatriate the French mothers and children detained in the north-east of the Syrian Arab Republic, the State party is putting them at risk of treatment that is contrary to the Convention.

The Committee recalls that, pursuant to article 22 of the Convention, it receives and considers communications from or on behalf of individuals subject to a State party’s jurisdiction who claim to be victims of a violation by a State party of the provisions of the Convention, in respect of any State party that has declared that it recognizes the Committee’s competence in that regard.³³ As the Committee clarified in its general comment No. 2 (2007), the concept of jurisdiction is not limited to national territory but includes all areas where the State party exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law, including detention facilities or other areas over which a State party exercises factual or effective control.³⁴

33. Committee against Torture, general comment No. 4 (2017), para. 6. ↩
34. Committee against Torture, general comment No. 2 (2007), para. 16. ↩

In the present case, the Committee notes that the State party does not deny having been informed by the complainants of the situation of vulnerability of their relatives, who are being detained in refugee camps in a conflict zone. The detention conditions have been widely reported in the media as deplorable and have been brought to the attention of the State party’s authorities through the various complaints filed by the complainants at the national level. They pose an imminent risk of irreparable harm to the lives and physical and mental integrity of the complainants’ relatives. The Committee also notes that effective control was being exercised over the camps by a non-State actor that had made it publicly known that it did not have the means or the will to care for the children and women detained in the camps and that it expected their countries of nationality to repatriate them. In the circumstances of the present case, the Committee considers that the State party, as the State of nationality of the women and children detained in the camps, has the capability and the power to protect their rights by taking action to repatriate them or providing other consular responses. These circumstances include the State party’s relations with the Syrian Democratic Forces, the latter’s willingness to cooperate and the fact that, by its own admission, the State party has repatriated more minors – a total of 35 French minors from camps in the north-east of the Syrian Arab Republic – than any other country in Western Europe.³⁵

35. See, mutatis mutandis, S.H. et al. v. France (CRC/C/85/D/79/2019-CRC/C/85/D/109/2019), para. 9.7. ↩

In the light of the foregoing, the Committee concludes that there is a jurisdictional link between the State party and the complainants and that the present complaint raises substantive issues under articles 2 and 16 of the Convention that must be examined on the merits. As the Committee finds no obstacles to admissibility, it declares the communication admissible and proceeds with its consideration of the merits.

The Committee has considered the present communication in the light of all the information made available to it by the parties, in accordance with article 22 (4) of the Convention.

The Committee notes the conflicting arguments put forward by the parties as to whether States have an obligation to repatriate their nationals under public international law or international human rights law. In this connection, it notes the recent decision of the European Court of Human Rights in a similar case involving France in which it ruled that “there is no obligation under international treaty law or customary international law for States to repatriate their nationals”.³⁶ However, the Committee considers that the question to be resolved is whether the State party, in the circumstances of the present complaint, as the State of nationality of the complainants’ relatives detained in the north-east of the Syrian Arab Republic and having already, on several occasions, used its capability and power to protect its citizens in similar situations by repatriating them, has taken all effective administrative and other measures to prevent acts of torture or ill-treatment in any territory under its jurisdiction, in accordance with article 2 of the Convention.

36. European Court of Human Rights, H.F. and Others v. France, Applications No. 24384/19 and No. 44234/20, Grand Chamber, Judgment, 14 September 2022, para. 259. ↩

The Committee notes the State party’s argument that it does not have the capability to repatriate the complainants’ relatives, as that course of action does not depend solely on the willingness of the State party but also on the consent of the authorities in the north-east of the Syrian Arab Republic and of the children’s mothers, and is hindered by the difficulties encountered in identifying the children and ensuring the security of such operations. However, the Committee notes that the State party has already successfully repatriated 35 French children without reporting any incidents relating to their repatriation or any refusal to cooperate on the part of the Syrian Democratic Forces. The Committee notes that, on the contrary, the Syrian Democratic Forces have repeatedly expressed their wish to see all foreign nationals being detained in the camps repatriated to their States of nationality, thus leaving it to the State party to decide whether or not to proceed with repatriation. The Committee therefore considers that the State party has the capability and power to prevent the ill-treatment of the complainants’ relatives by taking action to repatriate them or providing other consular responses.³⁷

37. See, mutatis mutandis, S.B. et al. v. France (CRC/C/89/D/77/2019-CRC/C/89/D/79/2019-CRC/C/89/D/109/2019), para. 6.4. ↩

The Committee notes the complainants’ argument that their relatives are barely surviving in the prison camps where they are being held, which are controlled by the Syrian Democratic Forces and situated in a war zone, and that they are living in inhuman and degrading sanitary conditions. The State party asserts that the complainants have not shown that their relatives are at risk of being subjected to violations of the Convention. However, the Committee notes that the security situation, the restrictions on movement and the sanitary conditions described apply to all people who are being held in the camps in the north-east of the Syrian Arab Republic, including the complainants’ relatives, who must face the same detention and living conditions as the other people living in the camps. The Committee is of the view that the causes of harm have been sufficiently identified and that there is no reason to believe that the complainants’ relatives are less at risk than other people in the camps.³⁸

38. Ibid., para. 6.5. ↩

The Committee recalls that States parties have an obligation, under article 2 of the Convention, to take positive measures to effectively prevent torture and ill-treatment.³⁹ It considers that the State party, which has repatriated several children of its own accord, is well aware of the situation in the camps in the north-east of the Syrian Arab Republic. Moreover, the Committee notes that the State party does not deny that the conditions in the camps are as described by the complainants. Consequently, the Committee considers that there is sufficient information to establish that the conditions in which the complainants’ relatives are being detained in the camps in the north-east of the Syrian Arab Republic, including in particular the lack of health care, food, water and sanitation facilities, amount to inhuman and degrading treatment, as prohibited by article 16 of the Convention. Furthermore, given that the State party is aware of the prolonged detention of these French nationals in a situation of ill-treatment and is capable of taking action, the Committee considers that the State party has a positive obligation to protect them from an actual violation of their right not to be subjected to acts of cruel, inhuman or degrading treatment or punishment. The Committee is of the view that although the State party cannot, for lack of territorial jurisdiction, be considered to have caused the violations suffered by its nationals, it remains under an obligation to take all necessary and possible measures to protect its nationals from serious human rights violations. In conclusion, the State party’s failure to protect the complainants’ relatives by taking effective measures to prevent such acts from being committed would constitute a violation of article 2 (1), read in conjunction with article 16, of the Convention.

39. Committee against Torture, general comment No. 2 (2007), para. 4. ↩

The Committee, acting under article 22 (7) of the Convention, is of the view that, in the circumstances of the present communication, the State party’s failure to take further measures reasonably in its powers to repatriate the complainants’ relatives would constitute a violation by the State party of article 2 (1), read in conjunction with article 16, of the Convention.

The Committee urges the State party to continue its efforts to ensure repatriation of the complainants’ relatives.

Pursuant to rule 118 (5) of its rules of procedure, the Committee invites the State party to inform it, within 90 days of the date of transmittal of the present decision, of the steps it has taken to respond to the above observations.

While we support the call on the State party “to continue its efforts to ensure repatriation of the complainants’ relatives” (para. 9), for the reasons set out below, we respectfully but strongly disagree with the conclusion reached by the majority. We wish to distance ourselves from the approach taken by the majority, who chose to find a prospective violation of article 2 (1) read in conjunction with article 16 of the Convention should the State party not take “further measures reasonably in its powers to repatriate the complainants’ relatives” (para. 8).

We observe with regret that the decision hinges upon misunderstanding, if not neglect, by the majority of the meaning of article 2 (1) of the Convention, which explicitly obliges each State party to take measures to prevent acts of torture “in any territory under its jurisdiction”. Moreover, the Convention uses exactly the same language in articles 5 (1 (a)), 5 (2), 7 (1), 11, 12, 13 and 16 (1), not counting references to the territory of a State party found elsewhere. The plain language of the Convention allows no leeway, since it contains the “ordinary meaning” of the term, as provided in article 31 (1) of the Vienna Convention on the Law of Treaties. The language of the Convention is different from the one used in article 2 (1) of the Convention on the Rights of the Child, which binds States parties to respect and ensure the rights set forth in that Convention “to each child within their jurisdiction”. The difference is not accidental and has a direct bearing on the outcome of the consideration of the communication at hand, as discussed in depth in the separate opinion of our distinguished colleague Todd Buchwald (see annex II).

The majority poses a question, in paragraph 8, as to whether the State party is bound, “in the circumstances of the present communication” to prevent acts of torture or ill-treatment, in accordance with article 2 of the Convention, “in any territory under its jurisdiction”, groundlessly stretching the provision to apply to locations where the alleged victims are incarcerated, and fails to give an answer, for lack of any proof, that the State party, in law or in practice, exercises any jurisdiction or control over the area, which, incidentally, is within the formal territorial jurisdiction of the Syrian Arab Republic, but is, in practice, controlled by a non-State entity. Instead, the majority relies on a vague and elusive notion of “a jurisdictional link” (para. 6.8), which it does not elucidate.

The manner in which the majority treats the strict and definite language of the Convention amounts to a loose, if not frivolous, interpretation of the founding treaty. We cannot align ourselves with this ultra vires approach. Under both the Convention (art. 30 (1)) and the Vienna Convention on the Law of Treaties (art. 31), interpretation of a treaty is the domain of States parties, unless the latter delegate that authority or the resolution of a dispute over interpretation to a judicial body.⁴⁰

40. See article 30 (1) of the Convention, according to which any dispute between two or more States parties concerning the interpretation or application of the Convention which cannot be settled through negotiation shall, at the request of one State party, be submitted to arbitration. If within six months from the date of the request for arbitration the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court; article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) regarding the jurisdiction of the European Court on Human Rights on all matters concerning the interpretation and application of the Convention; and article 3 of the Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court on Human and People’s Rights. ↩

The majority opines that the State party “has the capability and power to prevent the ill-treatment of the complainants’ relatives by taking action to repatriate them or providing other consular responses”. Firstly, the reference to “capability and power” might be perceived by those who possess both as a dispensation to act in an unrestrained manner. Secondly, the term “consular responses” is absent from the Vienna Convention on Consular Relations and cannot be explained by applying the “ordinary meaning” standard of the Vienna Convention on the Law of Treaties. Thirdly, the majority ought to be aware that France has not maintained a diplomatic and consular presence in the Syrian Arab Republic since March 2012.⁴¹ Fourthly, and finally, the majority should be cognizant of the State party’s commitment, made on 14 September 2022 in the wake of repatriations of its nationals to France, to continue such missions “whenever conditions make it feasible, on the basis of developments in the situation on the ground and the security conditions surrounding the detention of French nationals in camps in north-eastern Syria”.⁴² The State party has stood by that pledge and, on 20 October 2022, completed another mission, repatriating, in a single airlift, 55 French nationals.⁴³

41. See https://www.diplomatie.gouv.fr/en/country-files/syria/france-and-syria-65160/. ↩
42. See www.diplomatie.gouv.fr/en/country-files/syria/news/article/syria-european-court-of-human-rights-09-14-22. ↩
43. See www.diplomatie.gouv.fr/en/country-files/syria/news/article/communique-issued-by-the-ministry-for-europe-and-foreign-affairs-repatriations. ↩

The Committee could have made its own contribution, however modest, to those efforts by finding the communication inadmissible while offering stronger encouragement to the humanitarian endeavours of the State party in a volatile and precarious environment.

This case is not about whether the State party should take action to repatriate the victims, or whether it is required to do so under the terms of other Conventions or under customary international law. Nor does its turn on abstract questions about the nature of jurisdiction. Rather, the case turns on the specific question of whether the State party has failed to fulfil its obligation under article 2 (or article 16) of the Convention to take effective measures to prevent acts of torture or ill-treatment “in any territory under its jurisdiction”.

What does the phrase “in any territory under its jurisdiction” mean? On its face, it means that the territory on which the acts of torture (or ill-treatment) took place was territory that in some sense was subject to the jurisdiction of the State party. The Committee’s decisions have recognized that it suffices for the territory to be subject to the control of the State in a de facto sense and that it need not have jurisdiction in the sense of having the rights of a sovereign.

But this case is different. The Committee does not contend that the State party has control over the relevant territory in the north-eastern part of the Syrian Arab Republic, but rather that such control is unnecessary if there exists a “jurisdictional link” between the State party and the claimants. That might be fine if article 2 said that a State party was obligated to prevent acts of torture against any person with which the State had a jurisdictional link, but that is not what article 2 says. Indeed, early versions of the language that led to the Convention may have been amenable to such an interpretation. Thus, article 4 of the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly in 1975, states that each State shall take effective measures to prevent torture or ill-treatment from being practised within its jurisdiction and article 3 of the original draft of the Convention submitted by Sweden said the same thing.⁴⁴

44. E/CN.4/1285. ↩

While such language may well have supported the conclusion that the Committee has reached, on the theory that the persons being subjected to abuse were within the jurisdiction of the State party, the States negotiating the Convention specifically rejected that language, and, as adopted, article 2 requires a State party only to take measures to prevent acts of torture “in any territory” under its jurisdiction.⁴⁵ Indeed, the report of the Working Group on the draft Convention indicates that the negotiators rejected the language specifically because of concerns “that the phrase ‘within its jurisdiction’ might be interpreted too widely so as to cover citizens of one State who are resident within the territory of another State”.⁴⁶ Yet it is this “too wide” interpretation upon which the Committee has now agreed.

45. With respect to ill-treatment, the same phrase was included in article 16 of the Convention. ↩
46. E/CN.4/L/1470, para. 32. ↩

The Committee’s conclusion also appears inconsistent with the use of the phrase “in any territory under its jurisdiction” elsewhere in the Convention. For example, article 5 (1) (a) of the Convention obligates States to establish jurisdiction over offences committed “in any territory under its jurisdiction.” Clearly, however, article 5 (1) (a) does not require States to establish jurisdiction over offences outside its territory committed against its nationals because article 5 (1) (c) makes it clear that States are not required to do so. If the phrase does not encompass situations involving a State’s nationals outside its territory under article 5, what is the explanation for interpreting the same phrase to carry the opposite meaning in article 2? The decision fails to address any of this.

Some have argued that the Committee’s decision nevertheless follows from decisions in parallel cases by the Committee on the Rights of the Child or by the European Court of Human Rights. This argument does not bear scrutiny. Insofar as the Convention on the Rights of the Child is concerned, the conclusion of the Committee on the Rights of the Child that there need not be a territorial nexus is based on very different language in its Convention, and a negotiating history of its Convention that is the opposite from that of the Convention against Torture. Thus, article 2 of the Convention on the Rights of the Child requires States to ensure the rights set forth in the Convention “to each child within their jurisdiction”, as opposed to children located in territory that is under their jurisdiction.⁴⁷ The Committee on the Rights of the Child relied on this point explicitly, saying, for example, that “the Convention does not limit a State’s jurisdiction to ‘territory’”⁴⁸ and that “under the Convention, States have the obligation to respect and ensure the rights of the children within their jurisdiction, but the Convention does not limit a State’s jurisdiction to ‘territory’”.⁴⁹ In so doing, the Committee on the Rights of the Child noted that the choice of words was deliberate, specifically, that in the case of the Convention on the Rights of the Child, the negotiators deliberately excluded the element of territoriality,⁵⁰ with the result that States under that Convention “do have obligations in respect of children’s rights beyond their territories”.⁵¹

47. Other provisions of the Convention similarly lack language that would limit the obligations to children on the territory of the State in question. See, for example, arts. 3, 6, 20, 24 and 37, which were alleged to have been violated in S.H. et al v. France (CRC/C/85/D/79/2019). ↩
48. CRC/C/85/D/79/2019, para. 9.6. ↩
49. S.N. et al v. Finland (CRC/C/91/D/100/2019), para. 10.8. ↩
50. CRC/C/85/D/79/2019, footnote 42, citing Office of the United Nations High Commissioner for Human Rights, Legislative History of the Convention on the Rights of the Child: Volume 1, (New York, United Nations, 2007), pp. 332–333. See also footnote 35, which provides the following explanation: “In an early draft of article 2 (1), the applicability of the Convention on the Rights of the Child was explicitly linked to jurisdiction and the territory of a State. The territoriality condition was eventually deliberately left out of the text of article 2 and its final version only reflects the concept of jurisdiction, indicating that jurisdiction under the Convention was not intended by the drafting parties to be exclusively territorial.” ↩
51. CRC/C/85/D/79/2019, para. 8.5. ↩

With respect to the European Court of Human Rights, the Grand Chamber has found that France had certain obligations regarding a separate obligation, under article 3 (2) of Protocol 4 to the European Convention, not to deprive persons “of the right to enter the territory of the State of which he is a national”, reasoning that such a right only makes sense if it applies, at least to some extent, with respect to nationals located outside a State’s territory – a very different situation than the one faced in the case before our Committee.⁵² Indeed, insofar as the obligation to prevent torture was concerned, the Grand Chamber specifically rejected interpreting the European Convention as requiring France to secure the right of its nationals to be free from torture outside its territory, concluding that such an interpretation “would be tantamount to requiring [France] to comply with article 3 of the Convention despite the fact that it has no ‘control’”.⁵³ The Grand Chamber’s conclusions, like those of the Committee on the Rights of the Child, thus undercut rather than bolster the decision being made by the Committee today.

52. European Court of Human Rights, H.F. and others v. France, Application Nos. 24384/19 and 44234/20m Judgment, 14 September 2022, para. 209. ↩
53. Ibid., para. 198. Notably, the Grand Chamber said this even though article 1 of the European Convention requires States parties to secure the right not to be subjected to torture to “everyone within their jurisdiction” and thus lacks the kind of explicit requirement for territoriality that was included in article 2 of the Convention against Torture. ↩

In the final analysis, the decision of the Committee fails to address any of the questions set out above, a failure that seems particularly regrettable in a case with such potentially profound implications for the interpretation of the Convention. Accordingly, I respectfully decline to concur in the Committee’s decision.