The Irish national and former soldier, Lisa Smith, has been found guilty by the Special Criminal Court in Dublin, of joining Islamic State (IS). Smith left Dundalk in 2015, bound for Syria. On her return to Ireland in 2019 she was charged with membership of an unlawful terrorist group and financing terrorism. She was found guilty of the first charge but not guilty of the second. Smith now awaits sentencing.

Children speaking to an aid worker

Like thousands of women and girls around the world, Smith travelled to Syria to live in the IS caliphate. She married a British jihadi and gave birth to their child in Raqqa. As IS fell, she and her two-year-old daughter fled to the camps controlled by Syrian Democratic Forces (SDF) in northern Syria.

Following attacks on the camps in 2019, Smith and her daughter were detained by Turkey, then deported back to Ireland. She was arrested at Dublin airport.

Smith’s situation is all too familiar. What sets it apart from other, similar cases is the Irish state’s response. At a time when most western European states are refusing to repatriate IS-affiliated nationals, Ireland has accepted responsibility for Smith and her daughter.

Our research shows that refusal to repatriate not only contravenes international legal obligations to safeguard children, it is also counterproductive to national security aims. Such measures can prevent return, rehabilitation and reintegration of individuals who may want to leave a violent armed group and who do not, or no longer, constitute a threat.

One in four IS affiliates are women and children

It is estimated that between 2013 and 2018, 41,490 foreign citizens across 80 countries became affiliated with IS. Approximately 13% of them are women and 12% are children. In other words, one in four of IS’s affiliates are women and children.

According to UN reports, around 28,000 children of foreign fighters are living in SDF-controlled camps in Syria. Half of the children are under the age of five, and 80% are under 12.

The conditions within these camps are deplorable. There is overcrowding and an absence of medical care. Infrastructure is poor. Food, clean water and sanitation are inadequate, and children lack access to education. And violence is a serious issue.

This situation should be of vital concern to the international community. Universal rights to protection from violence and inhuman or degrading treatment and to provision of healthcare, education and decent standards of living are being seriously compromised.

Furthermore, studies show that the camps are breeding grounds for radicalisation and recruitment, as well as abduction by armed groups. There have been repeated warnings by the United Nations Security Council that failure to address this situation presents a serious threat to long-term international and regional security.

Many Central Asian states have repatriated hundreds of their nationals, mostly women and children. Most western states, by contrast, have sought to avoid responsibility.

The UK, France, Belgium, Denmark and others, have stripped citizenship from those they consider a threat to national security. They have also often used legal mechanisms to prevent repatriation.

The French Conseil d’Etat has rejected claims for repatriation on the basis that this would necessitate intervention in a foreign territory, which is outside its judicial remit. And we have explored the Belgian Appeals Court’s ruling that Belgian authorities, including diplomatic and consular services, have no legal obligation to repatriate children or their mothers. This ruling overturned a decision by a lower court that held that Belgium should do everything it could to facilitate repatriation.

We are of the view, however, that diplomatic protection as a mechanism under international law, with its connection to nationality, seems unlikely to provide a solution in a manner acceptable generally to governments. Further, its individualised nature means it is not appropriate for dealing with a collective, international problem that involves many thousands of people and many different countries.

Repatriation is a safeguarding issue

It is true that the legal situation is complicated. When it comes to children, the Convention on the Rights of the Child (CRC) is the central, international treaty and all states other than the US are party to it.

Under the CRC, the rights of children are to be respected at all times, including during emergencies and armed conflict. Children have rights to birth registration, names and nationality and, as far as possible, to be cared for and to know their parents. States are required to take all possible measures to provide children with the rights to education, the highest attainable standard of health, freedom from disease and malnutrition, access to clean drinking water, social security, a standard of living adequate for physical, mental, spiritual, moral and social development as well as rest, play and leisure.

Some UN human rights bodies have argued that the CRC dictates that states have obligations to protect the rights of child nationals in Syrian camps. The implication is that they ought to repatriate the children concerned in order to safeguard them. But the law is unclear on whether states owe obligations outside their territory in this situation and legal experts have cast doubt on the soundness of the reasoning in these decisions.

Using nationality as the basis for repatriation is also difficult. Human rights bodies have asserted that states of nationality are best placed to provide protection. But few children have birth registration documents and many have parents of different nationalities. This raises questions as to which state should bear the responsibility of repatriation. States wield significant legal control over nationality and citizenship – these are therefore vulnerable to manipulation to suit national, political priorities.

Regardless of the legal technicalities, this is a situation that urgent needs to be resolved. There is no international law that unequivocally requires states to repatriate children. But the principles that children should be protected, provided for, and – by inference – should not be subjected to the conditions within the camps of Syria, is one that all states are committed to under the CRC.

We have argued that when children experience this kind of extreme circumstance – hunger, lack of access to socioeconomic opportunities, abandonment and exposure to violence – they are left with few choices and can be compelled to become involved in extremism. Exclusionist, national policies that leave children stigmatised and rejected further pave the route to involvement with criminal networks and radical groups as children seek new support networks.

The children of IS are have been left to suffer as a result of the decisions and actions of their parents. Their human rights, under international law, continue to be violated. We need to recognise their victimhood.

Alison Bisset is Associate Professor in International Human Rights Law and Saeed Bagheri is Lecturer in International Law at the University of Reading.

This article is republished from The Conversation under a Creative Commons license.