This communication to the Committee on the Rights of the Child was submitted by nationals of Finland on behalf of the applicants’ own child relatives and on behalf of 33 other children who are held in the Hawl camp in the north-east of Syria. The children's parents are allegedly associated with the Islamic State. The applicants claim that Finland’s refusal to assist or repatriate these children despite knowing they were at risk of irreparable harm violates Articles 2, 6, 19, 20, 24, 27, 28, 37, 39, and 40 of the Convention on the Rights of the Child as well as Article 7 of the Optional Protocol on the involvement of children in armed conflict. The Committee finds the communication filed on behalf of the applicants’ own child relatives admissible and that Finland violated Articles 6(1) and 37 (a) of the Convention on the Rights of the Child.
Articles 2, 6 (2), 19, 20, 24, 27, 28, 37, 39, and 40 of the Convention on the Rights of the Child
Articles 5 (2) and 7 of the Optional Protocol on the Involvement of Children in Armed Conflict
Article 10 (5) of the Optional Protocol on a Communications Procedure
The applicants are individuals, nationals of Finland, acting on behalf of children (respectively their niece and grandchildren, and 33 other Finnish children, whose parents are allegedly associated with the Islamic State) held in the Hawl camp in Syria. The Hawl camp is under the control of the Syrian Democratic Forces.
The applicants claim that Finland has not taken the measures necessary to repatriate the child victims to Finland and that this failure to act constitutes a violation of Articles 2, 6, 19, 20, 24, 27, 28, 37, 39, and 40 of the Convention, as well as of Article 7 of the Optional Protocol to the Convention on the Involvement of children in armed conflict.
On admissibility
The applicants claim that the children's mothers are detained in a camp controlled by the Syrian Democratic Forces and that they, therefore, have standing to act in the best interests of their relative children, as well as to act on behalf and in the interest of the 33 other children who are in an identical situation.
On the merits
The applicants argue that, through inaction, Finland had violated Articles 2, 6, 19, 20, 24, 27, 28, 37, 39 and 40 of the Convention on the Rights of the Child, as well as Article 7 of its Optional Protocol on the involvement of children in armed conflict. They argue that Finland has failed to allow the children to access consular services, on the basis of their ethnicity, their mothers’ religious convictions or their age (Art. 2), to assist the children in leaving the camp (Art. 37), to repatriate the children from a camp where the living conditions are extremely poor and put their life, health and development at risk (Arts. 6, 19, 24 and 27) and to offer them rehabilitation (Art. 39 of the Convention and art. 7 of the Optional Protocol on the involvement of children in armed conflict).
The applicants argue that, as per Article 20 of the Convention, when the family cannot protect the child, the child has the right to State protection. It is also submitted that some of the older children at the camp may have committed “cruelties” under duress or manipulation. If so, the investigation into this should be carried out in line with the guarantees under Article 40. These procedural and other safeguards have not and cannot be fulfilled under the circumstances at the camp.
The applicants argue that Finland is aware of the conditions in which the children are living and have had the possibility to negotiate their release from the camp and repatriate them. It is argued that Finland is not absolved of its Convention obligations because the violations took place outside of their territory. Rather, through inaction, Finland is directly contributing to continuous violations of the child victims’ rights. The applicants argue there is no obstacle which is preventing Finland from repatriating the child victims.
On admissibility
Finland submits that the communication is inadmissible owing to the authors' lack of standing, the lack of the Committee's competence ratione temporis, the non-exhaustion of domestic remedies, and FInland's lack of jurisdiction over the children.
Regarding specifically lack of standing, the applicants would not establish acting with the consent of the legal guardians of their children’s relatives, nor would they provide any evidence of authorization to act on behalf of the 33 other children.
Regarding the lack of Committee's competence ratione temporis, Finland claims that the alleged facts or violations occurred before 12 February 2016, when the Optional Protocol entered into force for Finland.
Regarding the lack of jurisdiction over the children, Finland claims that it cannot be held accountable for situations it did not create and has no effective control or authority.
Finland affirms its intention to repatriate, to the extent possible, the Finnish children still held in the camps in the northeastern Syrian Arab Republic (including Hawl Camp), stressing that a total of 35 Finnish nationals (26 children and nine adults) were repatriated and that approximately 10 Finnish nationals would remain in the camps. Finland adds that when impossible to repatriate individuals, measures were taken to protect the safety of children, including remote access to a paediatrician and remote school arrangements for the Finnish children in the Hawl camp.
On the merits
Finland considers that there has been no violation of Articles 2, 20, 24 (4), or 37 of the Convention. It reiterates its determination to repatriate the children from the refugee camps in northern Syria as soon as possible. It stresses that the decisions to repatriate several Finnish children, together with their mothers, were taken following case-by-case assessments, with the best interests of the child as a primary consideration, using all available information to evaluate the possible risks for national security.
Finland also stresses that, since late 2019 and early 2020, the competent Finnish authorities have maintained regular contact with every detained individual willing to engage with them, having almost daily remote contact with them. It emphasizes that all the individuals who have requested consular assistance from Finland, either directly or indirectly, have been repatriated.
Finland adds that repatriating only the children has not been possible. Finnish authorities would not be allowed to request separation of the children from their mothers since the sole authority materially capable of effecting such separation is a non-State armed group.
Regarding the repatriation of Finnish children and their mothers, Finland stresses that until June 2021, the local authority has only consented to such handovers after lengthy consultations.
Regarding alleged violations of Articles 6, 19, 24, 27, and 28, Finland stresses that the Finnish authorities organised, in December 2019, online consultations with paediatricians and in April 2020 for Finnish schools of remote learning through mobile devices that the mothers had at their disposal.
Finland, therefore, claims that the Finnish authorities have, within their jurisdiction and to the maximum extent possible, ensured the survival and development of the children held in the Hawl camp and taken all appropriate legislative, administrative, social, and educational measures to protect them from all forms of physical and mental violence, injury and abuse. It further asserts that all appropriate measures have been taken to promote the physical and psychological recovery, social reintegration, and rehabilitation of the children repatriated from the Hawl camp, allowing them to go to school or attend pre-primary education.
On admissibility
The Committee recalls that pursuant to Article 5 (2) of the Optional Protocol, a communication submitted on behalf of an individual or group of individuals is to be with their consent unless the applicant can justify acting on their behalf without such consent.
Regarding the child victims who are relatives of the applicants, the Committee notes that their mothers, in the case's specific circumstances, have limited communication with the applicants, preventing them from providing written consent to the communication. Noting that the communication appears to be in the best interests of the child victims, the Committee considers that the communication submitted on behalf of the applicants’ relatives is admissible.
Regarding the other 33 children, the Committee considers that the applicants have failed to justify acting on their behalf or that the relatives of these children would have been unable to file a communication with the Committee on their behalf. The Committee, therefore, finds the communication filed on behalf of those children inadmissible.
The Committee rejects the alleged inadmissibility for non-exhaustion of domestic remedies, noting that Finland does not demonstrate that the applicants had at their disposal any judicial remedy that was available and effective to contest the administrative refusal to repatriate their relatives.
The Committee also denies that it would lack competence ratione temporis. While the communication refers to events that occurred before the Convention's entry into force for Finland, through its inaction, it allowed the alleged violations to continue after that date.
Finally, noting that the local authorities made it publicly known that it expected the detainees’ countries of nationality to repatriate them as well as the willingness of the Syrian Democratic Forces to cooperate in the repatriations of such children and mothers, the Committee concluded that Finland exercised jurisdiction over the children.
On the merits
The Committee finds that it is established that 'the conditions of detention pose an imminent and foreseeable threat to the lives of the child victims' and that their prolonged detention constitutes cruel, inhuman, or degrading treatment or punishment. (paragraphs 11.5-11.6)
The Committee reiterates that Finland, as the State of the children’s nationality and by virtue of its awareness of the situation of the extreme vulnerability of the children and of its relationship with the Syrian authorities, had the capability and the power to take action to repatriate them – which it successfully did for at least 26 Finnish children - or provide other consular responses. (paragraph 11.3)
Under these circumstances, the Committee concludes that Finland's failure to take protective measures concerning the child victims violates the children's rights under Articles 6(1) and 37(a) of the Convention.
The Committee does not consider it necessary to examine whether the same facts violate Articles 2, 19, 20, 24, 27, 28, and 39 of the Convention.
The Committee concludes that Finland should provide the applicants and the child victims with effective reparation for the violations suffered.
According to Article 10 (5) of the Optional Protocol on a communications procedure, the Committee issues the recommendations as follows:
(a) Taking urgent positive measures to repatriate the child victims, acting in good faith;
(b) Supporting the reintegration and resettlement of each child who has been repatriated or resettled;
(c) Taking additional measures, in the meantime, to mitigate the risks to the lives, survival, and development of the child victims while they remain in the north-eastern Syrian Arab Republic.
Pursuant to Article 11 of the Optional Protocol, the Committee wishes to receive from Finland, as soon as possible and within 180 days, information about the steps taken to give effect to the Committee’s Views. It further requests the State party to include information about any such steps in its reports to the Committee, publish the present Views, and disseminate them widely.
The Committee found that there had been a violation of Articles 6(1) and 37 (a) of the Convention on the Rights of the Child.
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