Repatriation of nationals from territory formerly controlled by the so-called Islamic State and the European Convention on Human Rights
After the terrorist organization Islamic State (IS) had lost the territory it had earlier controlled in Syria, numerous citizens of other countries who had travelled to Syria in order to support the IS have found themselves in refugee camps in the region. While many of them want to return to their original countries, in many cases also with children who were born during their time with the IS, these countries are often reluctant to admit them back due to their involvement with a terrorist organization.
Article 13 (2) of the Universal Declaration of Human Rights and Articles 2 (2) and 3 (2) of Protocol No. 4 (ECHR-P4) to the European Convention on Human Rights (ECHR) guarantee that everybody has the right to leave every country and to return to the country of which they are a citizen. This poses a problem for the countries to which members and supporters of the terrorist organization Islamic State want to return.
After states have struggled with the associated legal issues for several years, the European Court of Human Rights had to rule on the issue in September 2022 in the case of H. F. and Others v. France. The European Court of Human Rights (ECtHR) focused on three main issues: the question of jurisdiction, the possibility of a violation of Article 3 (2) ECHR-P4, according to which “No one shall be deprived of the right to enter the territory of the state of which he is a national”, and the problem of implementation.
The first requirement for the existence of obligations under the ECHR and its protocols follows from Article 1 ECHR: the applicant has to be within the jurisdiction of the respondent state. The easiest scenario is the case that the applicant is actually physically located within the respondent state. This is not the case here. Therefore, the case raised significant legal questions under Article 1 ECHR and the European Court of Human Rights allowed a number of external actors to provide their views.
The ECtHR found that France is not exercising territorial jurisdiction through its armed forces in the part of Syria where the applicants are located (para. 192), but also “that the opening of proceedings at the domestic level, whether by the French authorities or by the applicants, does not trigger France’s jurisdiction or, therefore, the application of the Convention” (para. 196). Also, the refusal to repatriate the applicants does not in itself suffice to bring them under the jurisdiction of the French state (para. 203). The European Court of Human Rights, however, found French jurisdiction within the meaning of Article 1 ECHR in the context of the right to return to one’s country of citizenship that is protected under Article 3 (2) ECHR-P4 (paras. 204 et seq.). This appears only logical as this right is only applicable to citizens who are located outside their country of citizenship.
This right cannot be limited (para. 248). However, the ECtHR emphasized “that there may be room for implied limitations, where appropriate, in the form of exceptional measures that are merely temporary” (para. 248), as had been relevant during the travel restrictions in the context of the COVID-19 pandemic (para. 248). In the specific case that the ECtHR had to decide, the Court found fault with the lack of procedural protections (para. 282) and, accordingly, a violation of Article 3 (2) ECHR-P4 (para. 284).
The Court emphasized that it is in principle up to the states to decide how to implement its judgments (para. 294), but in this specific case, it decided that it had to be more specific. It found that the measures that France had taken so far had not ruled out the risk of arbitrariness (para. 295). For this reason, the ECtHR held “that the French Government must re-examine those requests, in a prompt manner, while ensuring that appropriate safeguards are afforded against any arbitrariness” (para. 295).
As far as the financial consequences are concerned, the ECtHR found “that, in the circumstances of the present case, a finding of a violation is sufficient in itself to compensate for any non-pecuniary damage sustained by the applicants” (para. 288) and only ruled in favour of compensation for actual expenses plus potential taxes within three months (operative para. 6, section (b)) and “that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points” (operative para. 6, section (c)).
The case can be relevant beyond the specific circumstances of H. F. and Others v. France because also in the future it can be possible that citizens will be prevented from returning to their home countries for reasons of security or safety, including public health. In addition to circumstances like the one that led to this case, infectious diseases etc. can lead to such situations. It has to be noted, however, that Article 3 (2) ECHR-P4 does not allow for exceptions (para. 248), while the right to leave a country, which is protected in Article 2 (2) ECHR-P4, can be restricted for commonly accepted reasons (Article 2 (2) ECHR-P4). For Europeans, Article 3 (3) ECHR-P4 guarantees that we can always come home. The implied limitations accepted by the ECtHR are to be interpreted narrowly and with a view to the most effective implementation of the Convention and its Protocols.