ECtHR: Extraterritorial Jurisdiction and the duty to repatriate

By Hoda Bourenane

A decision regarding the repatriation of children, who grew up with one of their parents being a member of the Islamic State or “Daesh” and their mothers from Syrian camps was issued by the grand chamber of the European Court of Human Rights (ECtHR) in HF and Others v France on September 14th 2022. This judgement proves to be of significant importance as it not only touches upon the topic of extraterritorial jurisdiction but clarifies the meaning of Article 3(2) of Protocol 4 to the European Convention on Human Rights (ECHR). This article seeks to analyse the ECtHR’s long-awaited ruling.

In general, matters of extraterritorial jurisdiction are of paramount importance when it comes to the question whether States should assume responsibility for their nationals – in this case particularly for children – who have been detained under horrific conditions in camps in Syria. Any obligation of a State to protect the human rights of a national depends on establishing that the situation falls under the jurisdiction of the State. However, the theoretical models used to establish this connection are criticised as falling short. This case could pose as a precedent as other Western European Countries such as Germany for instance find themselves confronted with similar issues.

This case deals with the question whether France exercises jurisdiction over the applicant’s relatives. In this case, the applicants are the parents of two women who have travelled to Syria with their partners in 2014 and 2015 in order to support the Islamic State. The women have also brought along their three children. A few years after their departure, the applicant’s daughters were arrested and detained in the al-Hol and Roj camps in Syrian Kurdistan, where the general situation at that time encompassed inhuman and degrading conditions such as the exposure to violence and sexual exploitation (see paragraphs 16-25). Between March 2019 and January 2021 France has repatriated 35 children from Syrian camps but not the applicant’s daughters and their children. Multiple proceedings by the applicants seeking repatriation have also remained unsuccessful.

Thus, the question that arises is whether France is actually responsible for the applicant’s actions. In other terms: does France exercise jurisdiction over the applicant’s relatives? If so, it would be a case of extraterritorial jurisdiction. Extraterritorial jurisdiction refers to the competence of a State to make, apply and enforce rules of conduct in respect to persons, property or events beyond its territory. 

The ECtHRs ruling begins with the principles applicable to Article 1 ECHR. In general, a State’s jurisdictional competence is primarily territorial. However, their jurisdictional competence can be extraterritorial when either the personal model of jurisdiction – control and authority over an individual – or the spatial model – effective control over an area – applies as elaborated in Al-Skeini and others v United Kingdom (see paragraphs 186-87).  However, the Grand Chamber denies any effective control of France over the territory of north-east Syria, nor does it recognize any authority over the applicant’s family members. Therefore, the personal and the spatial model are considered inapplicable to extraterritorial jurisdiction. The ECtHR then proceeds to examine whether the criminal charges awaiting the applicant’s daughters in France might create a jurisdictional link (see paragraphs 193-96) but ultimately denies that thought.

In a next step, the ECtHR deals with the provisions of Article 3 ECHR and Article 3(2) of Protocol 4 as possible jurisdictional links. This approach mainly deals with the question whether the applicant’s daughters nationality provides sufficient link to establish a jurisdictional connection under the provisions of Article 3 ECHR as there exist no doubts that the applicant’s daughters and their children are subjected to torture and inhumane treatment in the north-eastern syrian camps. Nevertheless, the ECtHR rules that the mere capability of the French state authorities to repatriate does not trigger extraterritorial jurisdiction. The ECtHR also rules that Article 3(2) of Protocol 4, containing the right to enter one’s country, does not evoke any obligation to France to repatriate their nationals. Regardless if the people in question find themselves in a de facto exile, as their return to France is dependent on the action of the French authorities, the ECtHR denies the obligation to repatriate. Even the willingness of the Kurdish authorities to hand over the detainees does not seem to find an appeal in the Court’s considerations. The Court ultimately proceeds to construct a breach of Article 3(2) of Protocol 4 by declaring that the decision of the French authorities whether to repatriate has been surrounded by a lack of safeguards against arbitrariness. 

The ruling seems to fall short with regard to establishing a solution to the debate surrounding the de facto exile of nationals. The court took the view that there does not exist a general right of nationals to be repatriated under the Convention. In the case of HF and Others v France, France could not be held responsible for the concrete conditions in the Syrian camps and thus was not exercising extraterritorial jurisdiction. However, the Court’s ruling can be criticised as their main approach to determining whether extraterritorial jurisdiction has been established were the spatial and personal model. Both models seem unfit to apply to the scenario, as they do not consider whether a State has binding human rights obligations to fulfil. Only considering whether the French authorities exercise effective control over the camps or whether they control the camp authorities neglects the fact that human rights abuses occur to their nationals. Thus, the question might arise whether the functional model might be a better fit, as it establishes that the jurisdiction of a State is dependent on its human rights obligations derived from a treaty.

Furthermore, the Court has denied a general right to repatriation derived from the right to enter one’s country in Article 3(2) of Protocol 4 ECHR. However, the Court has ruled that Article 3(2) of Protocol 4 ECHR can impose a positive obligation on the State, where a refusal to take any action must not be reliant on an arbitrary decision process. However, the Court employs a very narrow interpretation of Article 3(2) of Protocol 4 ECHR as it refuses its scope of protection to a mere guarantee of the use of sufficient procedural safeguards. In other terms: the decision not to repatriate their nationals has not been criticised but merely the circumstance that a faulty procedure has been applied.

In the end, another ruling bringing further clarification on the matters of extraterritorial jurisdiction is required. As those matters will become more important in the future, a European solution has to be established that can be applicable.

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