Submission by the United Nations Special Rapporteur on the protection and promotion of human rights while countering terrorism to the UK’s Foreign Affairs Committee on the UK’s international counter-terrorism policy (CTE0011)

Summary

              The submission focuses on the United Kingdom’s policy regarding its citizens detained in North-East Syria and its impact on reducing the risk of terrorism. It examines the situation of United Kingdom citizens who are arbitrarily detained in camps, prisons and ‘rehabilitation’ centres in North-East Syria, including the conditions of detention, with a focus on the rights of children, and the incommunicado detention of those in prison. It examines current practices involving the transfer of adolescent boys, citizenship stripping, United Kingdom funding of detention centres, and failure to repatriate its citizens as contributing to an entrenchment and facilitation of the detention situation, and exacerbating grievances with long term implications for preventing terrorism and sustaining fragility and conflict. It highlights serious obstacles to trials taking place in the region, in line with international human rights and humanitarian law. It concludes that the policy of the United Kingdom in North-East Syria does not effectively address terrorism as an international threat to peace and security, and has negative consequences for the region, for the United Kingdom and globally. It urges the Foreign Affairs Committee to consider the real and tangible security implications that follow the long-term, mass arbitrary detention in the camps and prisons in North-East Syria, which constitutes a fundamental dimension of a holistic threat assessment.

Submission

1. This submission by the United Nations Special Rapporteur on the protection and promotion of human rights and fundamental freedoms while countering terrorism established pursuant to Human Rights Council resolution 40/16 focuses on the United Kingdom’s (UK) policy regarding its citizens detained in North-East Syria (NES) and its impact on reducing the risk of terrorism.

2. In the performance of her mandate, the Special Rapporteur on the protection and promotion of human rights and fundamental freedoms while countering terrorism is accorded certain privileges and immunities as expert on mission of the United Nations in accordance with the 1946 Convention on the Privileges and Immunities of the United Nations, in force for the United Kingdom of Great Britain and Northern Ireland since 17 September 1946. This submission is made on a voluntary basis, without prejudice to, and should be considered as a waiver, express or implied, of the privileges and immunities of the United Nations, its officials and experts on mission, pursuant to the 1946 Convention on the Privileges and Immunities of the United Nations. Authorization for the positions and views expressed by the Special Rapporteur, in full accordance with the independence afforded to her mandate, were neither sought nor given by the United Nations, the UN Human Rights Council, the Office of the High Commissioner for Human Rights or any of the officials associated with those bodies.

3. The Special Rapporteur on the promotion and protection of human rights while countering terrorism reports regularly to the UN Human Rights Council and General Assembly. Having consistently addressed issues of return and repatriation of individuals, including women and children, from conflict affected areas, particularly in NES and Iraq,[1] this issue relates to the core work and concerns of this mandate. The Special Rapporteur notes that she has engaged with the UK government on this issue through several communications (GBR 2/2021, GBR 1/2022, GBR 7/2022, GBR 7/2022) and that she has received replies from the UK Government on 16 April 2021, 27 April 2022, and two on 19 April 2023. She notes also that her Mandate was an intervener to the proceedings in the Administrative Court[2] and the Supreme Court[3] in the case of Shamima Begum.

Detention situation in for UK citizens in North-East Syria

4. The Special Rapporteur brings to the Committee’s attention that there are approximately 72 UK citizens detained in the closed camps (Al Hol and Al Roj), closed ‘rehabilitation’ centres and prisons in NES: approximately 60 women and children in the camps and 12 men in detention, although she stresses that given the complete lack of access to the detention facilities by independent human rights experts, precise numbers are difficult to ascertain.

Legal qualification of detention

5. There is no legal basis for the blanket,[4] indefinite detention of UK citizens in the prisons or the camps. Because the detentions are not subject to any judicial authorisation, review, control or oversight and because they entirely lack predictability and due process of law, the Special Rapporteur has determined that UK citizens are held arbitrarily in the camps, prisons and ‘rehabilitation’ centres in NES. The UN Human Rights Committee has emphasised that detention based on alleged criminality of family members is an “egregious” example of arbitrary detention.[5]
6. The European Court of Human Rights has determined that the situation for persons detained in the camps “verges on a legal vacuum”.[6] The UN Independent International Commission of Inquiry on the Syrian Arab Republic (COI) has found that “depriving individuals, including children, with alleged links to Da’esh of liberty without criminal charge or any individual assessment by an impartial and independent body as to whether their internment is justified on grounds of imperative reasons of security is unlawful” and concluded that their “blanket internment” amounts to an “unlawful deprivation of liberty”.[7]

7. The Special Rapporteur fundamentally opposed the qualification of these camps by the UK government as “IDP camps”[8]. All individuals in the camps are subjected to some form of limitation of their freedom of movement, all foreigners are subjected to various forms of deprivation of liberty, including the arbitrary detention of third country nationals, such as UK citizens.

8. As individuals are now firmly in their fifth year of detention, without the opportunity to challenge the grounds for such detention based on presumptive but unproven association with a non-State armed group also designated as terrorist, the CoI has found “reasonable grounds to believe that the form, severity, duration and intensity of the physical and mental suffering inflicted may amount to the war crime of committing outrages upon personal dignity, in particular humiliating and degrading treatment, in relation to each interned individual Member States involved in supporting SDF have a particular responsibility to assist them to bring these violations to an end”.[9]

Conditions of Detention

9. The conditions of detention in the camps are dire and the security situation is continuously deteriorating. The Special Rapporteur has determined that the conditions amount to torture and inhuman or degrading treatment. For the European Court of Human Rights, the camps’ inhabitants “were facing a real and immediate threat to their lives and physical well-being, on account of the living conditions and safety concerns in the camps, which are regarded as incompatible with respect for human dignity”.[10] For the UK’s Special Immigration Appeals Commission, “conditions in the camp are so dire that they meet the threshold of inhuman or degrading treatment”.[11] For the UN Committee Against Torture “the conditions of detention (…) in the camps, notably with respect to the lack of health care, food, water and sanitation equipment amount to inhuman and degrading treatment”.[12] The UN Committee on the Rights of the Child has found that children in the camps face “an imminent risk of death”.[13] The conditions of detention in the camps also engage the right to life, to food, to health, to water, and to dignity.

Children in the Camps

10. The Special Rapporteur underscores that the camps are composed of 60 percent of children, of which 80 percent are under the age of 12 and 30 percent under the age of five.  According to the figures obtained by the Special Rapporteur, over half of the UK nationals detained in NES are children; of these, over half are under 10, and 15 are children five years old or younger.

11. She stresses to this Committee that children in the camps are victimised on multiple grounds and continue to be denied the most basic protection to which they are entitled. From indefinite detention without any process or review, to inhumane conditions of detention and lack of basic care and education, to risks of harassment, violence, exploitation and sexual and other forms of abuse, the impact of their situation on their most basic rights as protected by the Convention on the rights of the child is not only severe but complete.

12. Under any circumstance, the detention of children must always be used as a measure of last resort and for the shortest duration possible.[14] It is a violation of the principle of non-discrimination to punish a child based on the “status, activities, expressed opinions, or beliefs” of their parents.[15]  Detention on such discriminatory grounds constitutes collective punishment,[16]  a clear breach of international law.[17] Even when they are not forcibly recruited, all child association with terrorist groups involves some form of coercion or constraint. Children who are detained for association with armed groups should be first and foremost recognised as victims of grave abuses of human rights and humanitarian law, and their best interest should be taken into consideration in all decisions that concern them.

Transfers of Adolescent Boys

13. The Special Rapporteur also brings to the attention of the Committee the situation of adolescent boys who are transferred from the camps to male adult detention centres or closed ‘rehabilitation’ centres (locations of deprivation of liberty, where confinement conditions can meet the threshold for torture, inhuman and degrading treatment) upon attaining puberty when they reach the age of 10-12, after being taken away from the care of their mothers, often at gunpoint in the middle of the night.[18] Many mothers have not heard of their sons since they were taken away.

14. The transfers have the impact of perpetuating their detention by taking them out of the repatriation-rehabilitation-reintegration trilogy. The de facto culling, separation, and warehousing of adolescent boys from their mothers is an abhorrent practice inconsistent with the dignity of the child and with the most essential rights any child is entitled to in any circumstances. These transfers do not appear to have a legal basis, are not subjected to judicial scrutiny or transparent processes in which the best interest of the child can be impartially and independently assessed with adequate legal representation. The indefinite, cradle-to-grave, camp-to-prison detention of boys, based on crimes allegedly committed by their family members is a form of gender discrimination that has dramatic and lasting consequences.

Boys and Men in Prisons

15. The Special Rapporteur is aware that of the approximately 2,000 third country national men detained in the adult male detention centres, approximately a dozen are UK citizens. As some men crossed the threshold of adulthood while in detention, the Special Rapporteur recalls that the unlawfulness of detention as a child does not render such detention lawful once a child becomes an adult.

16. Men and boys (some as young as nine) are being held incommunicado, in conditions which may amount to enforced disappearances.[19] Detainees in Hasakah prison have been subjected to torture.[20] Prisoners are held in overcrowded collective cells of 20 to 25 people, in inhumane conditions, with limited access to food and medical care, open latrines, and poor ventilation, where infectious diseases (tuberculosis and scabies) are rampant. Hundreds of individuals have died in the prisons. A Court in Canada[21] has assessed that the condition of the men in prisons “even more dire” than those in the camps. These detention sites do not meet the minimum United Nations Standard Minimum Rules for the Treatment of Prisoners (Mandela Standards).

17. Access to the prisons and the conditions of detention therein have severely deteriorated since an attack by ISIL on Hasakah prison in January 2022.[22] The prison held approximately 700 boys in an Annex who were used as human shields during the attack.[23] Since, the fate of at least 100 boys remains unknown,[24] while others suffer from untreated wounds.

Entrenchment of Arbitrary Detention through UK Funding

18. The Special Rapporteur notes that there these detentions take place at the behest of countries of origin.[25] She brings to the attention of the Committee that there is no permissible human rights basis for States to sub-contract directly or indirectly administrative or security detention to non-State actors on the territory of third States. She expresses deep concern at the facilitation of mass arbitrary detention by States both directly and indirectly in these detention facilities in NES. She notes also that the UK has invested 20 million dollars in expanding Hasakah’s Al-Sina’a prison with the new Panorama prison (where the boys transferred from Hasakah’s destroyed Annex are now allegedly held) to double the prison population.[26]  She is profoundly concerned the indefinite mass detention of men and boys is enabled and supported in part by the UK.

Entrenchment of Arbitrary Detention Through Deprivation of Citizenship

19. The Special Rapporteur brings to the Committee’s attention the impact of citizenship deprivation on the entrenchment of the detention situation in NES. She has been made aware that as at 2022, the UK Government had made citizenship deprivation orders in respect of at least 19 British adults detained in NES, even if they arrived in Syria as children, and the number is likely to be higher due to the Government’s failure to be transparent about this issue.[27] She has found that States such as the UK have engaged in citizenship stripping on a basis that appears primarily to involve the prevention of women’s – and possibly their children’s – return to their country of citizenship, which is not only contrary to international law, but also entrenches the detention crisis in the region.

20. The necessary conditions to prevent arbitrary deprivations of citizenship under international law cannot be met for individuals in the camps in NES.[28] In many States, such as the UK, citizenship-stripping is done in abstentia, through executive decisions without any judicial process or oversight, based on intelligence information relating to potential radicalization to extremist ideology and threats to national security. Deprived individuals are not properly informed. The ability of individuals to engage is entirely circumscribed by the detention conditions they endure.

21. Citizenship-stripping only applies to individuals who have double citizenship, creating second-class citizenship for minority groups whose citizenship functions as less stable than for majority populations in society and can exacerbate grievances. Further, such practices have rendered individuals stateless and stranded in the camps, in a legal limbo, from which there is virtually no possible positive resolution, notably where the State of their second alleged nationality disclaim their citizenship. The Special Rapporteur has called for a moratorium on deprivations of nationality in the context of NES.

Lag in UK repatriation

22. The Special Rapporteur is very concerned that that only 11 UK citizens (ten children and one woman) have been repatriated to the United Kingdom. She notes an evident dissonance in the UK’s policy compared to other States. She highlights for the Committee that in the past year, repatriation of women and children has significantly stepped up. To illustrate this, France has repatriated 188 individuals, Germany, 102, the Netherlands, 62, Australia, 25 and Canada, 21. The United States has repatriated almost all of its citizens in the region. Denmark, Finland, Germany, Kazakhstan, Kosovo, Russia, Sweden, Tajikistan, Ukraine, the US, and Uzbekistan, have now repatriated many, if not in some cases most, women and children. 

23. These repatriations, carried out under increased pressure resulting from judicial and quasi-judicial decisions, as well as a visible increase of security incidents (including attacks and killings in and around the camps), contrast with previous national positions pertaining to lack of access to the camps, lack of consular presence and the risks posed by these repatriation operations. They show the determination of the de facto authorities in NES to enable them, and their sheer practical feasibility.

24. The voluntary and human rights compliant repatriation of individuals from NES is the only international law-compliant response to the complex and precarious human rights, humanitarian and security situation faced by those detained in the camps, prisons or other detention centres. Given the geopolitical fluidity of the region and the metastatic growth of non-State armed groups also designated as terrorist in the region, repatriations are critical to States’ long-term security interests. The current policy of the UK cannot be reconciled with any position that States who are leaving their nationals in the camps and prisons in NES are effectively addressing terrorism as an international threat to peace and security.

25. In response to national arguments pertaining to a lack of jurisdiction in NES, the Special Rapporteur has argued for a “functional” or “control of rights” approach to jurisdiction rooted in a duty to act with due diligence and take positive steps and effective measures to protect vulnerable citizens located abroad where they are at risk of serious human rights violations or abuses and face treatment in flagrant violation of international human rights law. It is clear that in the circumstances of NES, the acts or omissions of states can positively or negatively impact on human rights, including flagrant denial of justice, the imposition of the death penalty, torture or cruel, inhuman or degrading treatment, sexual violence, or deprivation of liberty in grave violation of the most basic standards of humanity. This is also the position that has been taken by the Committee on the Rights of the Child and the Committee Against Torture.

Prosecutions

26. The Special Rapporteur notes that the unwillingness of states, including the United Kingdom, to repatriate their nationals has entertained the possibility of trials in the region.[29] The Special Rapporteur cautions against viewing any proximate proceedings as functioning in line with international human rights and humanitarian law commitments, and highlights obvious posed by carrying out sentences in such fraught contexts.

27. At present, there are important obstacles to the establishment of an international or regional ad hoc or hybrid court in the region. There are political difficulties engaged with a special terrorism court addressing the crimes of only some parties to the conflict, justifiably raising resentment from survivors. Legal challenges include the absence of international agreement on the definition of terrorism and of a legal corpus to guide judicial bodies. Practical difficulties include shifts of effective power, proximity to non-State armed groups, and a lack of capacity to protect victims and witnesses. Acknowledging the lack of political agreement within the Security Council and the unlikeliness of one territorial State to engage with or allow an international mechanism on its territory, the Special Rapporteur views the possibility of such a mechanism being established as extremely limited.

28. On the outsourcing of trials to the Iraqi judiciary, the Special Rapporteur highlights an already overburdened process of repatriation, reintegration and prosecution and an under-resourced judicial branch, combined with serious concerns of violations of fair trial standards: allegations of torture, overreliance on confessions, overly broad and vague definition of terrorism, and mandatory death penalty.[30] In NES, the de facto authority is not a legally recognized entity to conduct such trials for foreign nationals consistent with required due process standards. There is no infrastructure or capacity to support such trials, and the situation on the ground make an augmentation and amelioration of trial proceedings in line with fundamental guarantees of fair trial highly unlikely in any foreseeable future. No meaningful political or legal conversations concerning the possibility of such trials are taking place at the UN, or to her knowledge in other international multilateral fora.

29. The failure of States such as the UK to repatriate and apply relevant criminal justice procedure leaves an evident accountability gap and abrogates the responsibility of the States whose nationals have committed these violations, including core international crimes. She recalls fundamental duty of every State to exercise its jurisdiction over those responsible for core international crimes,[31] as a potent deterrent to future terrorist violence.

Threat Assessment

30. The mass arbitrary detention in NES is justified on the basis that it is a security imperative. The Special Rapporteur notes that apart from security/intelligence assessments, which unlike judicial processes do not consider the complex layers of identities, roles and vulnerabilities amongst the populations in camps and prisons, very little is known about the individuals detained and what they are alleged to have done when living in NES.

31. The assessment of threat in the region also means that many of the international law frameworks that should normally apply (the right not to be rendered stateless, frameworks on the recruitment and use of children by non-State armed groups and on human trafficking) are being displaced. She highlights case of Shamima Begum, where an interview given from within the camps to a journalist led her to be vilified by public opinion and stripped of her citizenship, likely rendered stateless, while - as recently recognized by a decision of the Special Immigration Appeals Commission - she had been groomed as a child, and that it is likely that she was trafficked for the purposes of sexual exploitation by ISIL.

32. For the Special Rapporteur, this fundamentally requires critical interrogation of the way “threat” is measured in national and international contexts.  Exhortations of a generic threat caused by certain categories of individuals are overly simplistic and contribute to an unacceptable failure to predict, manage, and adequately address terrorism and complex violence. The Committee should consider the real and tangible security implications that follow the long-term, mass arbitrary detention in the camps and prisons in North-East Syria, which constitutes a fundamental dimension of a holistic threat assessment. Similarly, the Committee should critically question how the indefinite maintenance of a large and varied population in a legal blackhole in abhorrent conditions actually and effectively contributes to countering terrorism as a threat to international peace and security, for the fragile region, globally, and for the United Kingdom.

June 2023

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