URU, Alm.del - 2020-21 - Bilag 207: Brev fra udenrigsministeren til Udenrigsudvalget og Retsudvalgets medlemmer vedr. Danmarks besvarelse af en henvendelse fra 15 FN-specialrapportører om forholdene i lejrene Roj og Al-Hawl i Nordøstsyrien, henvendelsen fra FN-specialrapportørerne samt Danmarks besvarelse af henvendelsen

Udenrigsudvalget 2020-21, Det Udenrigspolitiske Nævn 2020-21
URU Alm.del Bilag 207, UPN Alm.del Bilag 266
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FACSIMILE TRANSMISSION

DATE:

A/TO:

26 January 2021

His Excellency

Mr. Morten Jespersen

Ambassador

Permanent Representative

Permanent Mission of Denmark

to the United Nations Office and other international organizations in Geneva

+41 22 918 00 66

[email protected]

Beatriz Balbin

Chief

Special Procedures Branch

OHCHR

+41 22 917 9008

+41 22 917 9543 / +41 22 917 9738 / +41 22 917 9963

[email protected]

AL DNK 1/2021

(Y COMPRIS CETTE PAGE/INCLUDING THIS PAGE)

JOINT COMMUNICATION FROM SPECIAL PROCEDURES

FAX:

EMAIL:

DE/FROM:

FAX:

TEL:

E-MAIL:

REF:

PAGES:

OBJET/SUBJECT:

Please find attached a joint communication sent by the Special Rapporteur on the

promotion and protection of human rights and fundamental freedoms while countering

terrorism; the Working Group on Arbitrary Detention; the Special Rapporteur on

extrajudicial, summary or arbitrary executions; the Special Rapporteur on the right to

food; the Special Rapporteur on adequate housing as a component of the right to an

adequate standard of living, and on the right to non-discrimination in this context; the

Special Rapporteur on the human rights of migrants; the Special Rapporteur on

minority issues; the Special Rapporteur on the right to privacy; the Special Rapporteur

on contemporary forms of racism, racial discrimination, xenophobia and related

intolerance; the Special Rapporteur on the sale and sexual exploitation of children,

including child prostitution, child pornography and other child sexual abuse material;

the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or

punishment; the Special Rapporteur on trafficking in persons, especially women and

children; the Special Rapporteur on violence against women, its causes and

consequences; the Special Rapporteur on the human rights to safe drinking water and

sanitation; and the Working Group on discrimination against women and girls.

I would be grateful if this letter could be transmitted at your earliest convenience to

His Excellency Mr. Jeppe Kofod, Minister for Foreign Affairs.

URU, Alm.del - 2020-21 - Bilag 207: Brev fra udenrigsministeren til Udenrigsudvalget og Retsudvalgets medlemmer vedr. Danmarks besvarelse af en henvendelse fra 15 FN-specialrapportører om forholdene i lejrene Roj og Al-Hawl i Nordøstsyrien, henvendelsen fra FN-specialrapportørerne samt Danmarks besvarelse af henvendelsen

PALAIS DES NATIONS

•

1211 GENEVA 10, SWITZERLAND

www.ohchr.org

•

TEL: +41 22 917 9543 / +41 22 917 9738

•

FAX: +41 22 917 9008

•

E-MAIL:

[email protected]

Mandates of the Special Rapporteur on the promotion and protection of human rights and

fundamental freedoms while countering terrorism; the Working Group on Arbitrary Detention;

the Special Rapporteur on extrajudicial, summary or arbitrary executions; the Special

Rapporteur on the right to food; the Special Rapporteur on adequate housing as a component of

the right to an adequate standard of living, and on the right to non-discrimination in this context;

the Special Rapporteur on the human rights of migrants; the Special Rapporteur on minority

issues; the Special Rapporteur on the right to privacy; the Special Rapporteur on contemporary

forms of racism, racial discrimination, xenophobia and related intolerance; the Special

Rapporteur on the sale and sexual exploitation of children, including child prostitution, child

pornography and other child sexual abuse material; the Special Rapporteur on torture and other

cruel, inhuman or degrading treatment or punishment; the Special Rapporteur on trafficking in

persons, especially women and children; the Special Rapporteur on violence against women, its

causes and consequences; the Special Rapporteur on the human rights to safe drinking water and

sanitation; and the Working Group on discrimination against women and girls

REFERENCE:

AL DNK 1/2021

26 January 2021

Excellency,

We have the honour to address you in our capacities as Special Rapporteur on

the promotion and protection of human rights and fundamental freedoms while

countering terrorism; Working Group on Arbitrary Detention; Special Rapporteur on

extrajudicial, summary or arbitrary executions; Special Rapporteur on the right to

food; Special Rapporteur on adequate housing as a component of the right to an

adequate standard of living, and on the right to non-discrimination in this context;

Special Rapporteur on the human rights of migrants; Special Rapporteur on minority

issues; Special Rapporteur on the right to privacy; Special Rapporteur on

contemporary forms of racism, racial discrimination, xenophobia and related

intolerance; Special Rapporteur on the sale and sexual exploitation of children,

including child prostitution, child pornography and other child sexual abuse material;

Special Rapporteur on torture and other cruel, inhuman or degrading treatment or

punishment; Special Rapporteur on trafficking in persons, especially women and

children; Special Rapporteur on violence against women, its causes and

consequences; Special Rapporteur on the human rights to safe drinking water and

sanitation; and Working Group on discrimination against women and girls, pursuant

to Human Rights Council resolutions 40/16, 42/22, 44/5, 32/8, 43/14, 43/6, 43/8, 37/2,

34/35, 43/22, 43/20, 44/4, 41/17, 42/5 and 41/6.

In this connection, we would like to bring to the attention of your Excellency’s

Government information we have received concerning a registration and verification

His Excellency

Mr. Jeppe Kofod

Minister for Foreign Affairs

exercise in Al-Hol and Roj camps located in North-East Syria where your nationals,

primarily women and children, are currently deprived of their liberty. In these

makeshift locked camps made up of unstable tent-like structures which collapse in

strong winds or flood with rain or sewage, hygiene is almost non-existent: limited

drinking water is often contaminated, latrines are overflowing, mounds of garbage

litter the grounds, and illnesses including viral infections are rampant. Food, water,

health care and essential non-food supplies are provided by under-resourced

humanitarian groups and organisations. According to the Kurdish Red Crescent, at

least 517 people, 371 of them children, died in 2019, many from preventable diseases,

in Al-Hol camp alone. In August 2020, eight children under the age of five died in

that camp in less than a week, with four caused by malnutrition-related complications

and the others were due to dehydration from diarrhoea, heart failure, internal bleeding

and hypoglycaemia, according to UNICEF. Covid-19 has increased these difficulties,

with a reduction in the number of workers operating in the camp.

According to the information received:

‘registration

and verification exercise’ by Camp Administration authorities

took place in early June 2020 in Al-Hol for all third country nationals, which

include individuals from your country. It is alleged that a similar exercise had

also taken place in Roj in May 2020.

During this process, all third country nationals, approximately 700 families,

mostly women and children over the age of 10, housed in the Annex in Al-

Hol, were required to provide personal information which included their

country of origin, DNA samples (through the drawing of blood), finger or

palm prints, and facial, iris, or retina and other biometric data. Further, in order

to proceed with the registration, families were asked to leave their tents

together with several other families in the annex and stay in the reception area

of the main camp, and were not allowed to return to their tents until the

registration of all the families of their group was finalised, which could last up

to 24 hours. A request by UNHCR for protection oversight of the reception

area was denied.

Also during that exercise, all humanitarian actors delivering essential, life-

saving goods and services to those individuals deprived of their liberty in the

camps were denied access to the camp during the entirety of the exercise, in

complete disregard of the key international law obligation to allow

humanitarian access to organisations carrying out principled humanitarian

action. All humanitarian actors were barred from entering the camp, including

medical personnel, without any forewarning, and a request by UNHCR for a

two-week pause in the exercise, to allow humanitarian actors to find solutions

to ensure the continuation of the provision of humanitarian aid, was denied.

Those individuals concerned by the exercise were told that they would be

provided with only drinking water and bread during the exercise. Medical staff

were also denied access to the camp. Referrals for serious medical cases were

to be done by the military, and that at least three requests for referrals,

including one involving severe child malnutrition, were denied by camp

administration. At the same time, more than 1,000 additional military officers,

presumably Syrian Democratic Forces (SDF), were present in the camp during

the exercise.

A note was circulated by camp authorities to the residents informing them that

this exercise would be

“in

compliance with human rights” although no specific

as to which mechanisms, processes and actions would be taken to that end.

Other informal statements, reportedly by camp authorities, informed that the

registration operation was designed to

“improve

security and control within

the camp and the surrounding area by moving tents apart, disrupt radicalisation

activities, prevent the operation of sharia courts, prevent criminal activities

including assassinations and the smuggling of people and material; and

confirm numbers and identities of individuals housed within it”.

Potentially linked to this registration, data-collection and relocation exercise,

we have recently been made aware of an extension or the creation of an

additional campsite in Roj camp, to which approximately 200 families, mostly

third country nationals from European States, have been moved. In some of

the reports, it is stated that these families are considered as high security

threats, although no information is available on the basis or legal foundation

upon which such an assessment would be made. It remains unclear whether

your Excellency’s Government has been informed of this exercise and material

change in detention circumstances for your nationals. Such information

appears to be exchanged either informally, through the good offices of

humanitarian organizations, or by direct information sharing between the SDF

and certain governments.

Without pre-judging as to the accuracy of the information received, it is our

view that the allegations relating to the

‘registration

and verification’ exercise itself

and the manner in which it was carried out, as well as the move of several families to

an enlarged camp raise very serious human rights concerns. These concerns are, in our

view, relevant to your government whose nationals are present in the camps and who

have either undergone the registration and verification exercise or have been

displaced. They are also relevant given the concern about the use/purpose of the

information collected in such exercise.

Humanitarian access

We express our serious concern that essential humanitarian access and

protection were jeopardized in the implementation of the registration operation.

Indeed, the denial of access of humanitarian actors to the camp

—

absent advance

warning—, the authorities refusing a request by UNHCR for a two-week pause on the

exercise to enable humanitarian actors to organise themselves to maintain a modicum

of aid; the provision of water and bread alone during the period of the exercise,

including to a large number of children raise deep concerns regarding the

implementation of the most basic of survival rights and protections for your

vulnerable nationals.

Humanitarian actors play a critical life-saving role in providing humanitarian

aid and assistance, including food and medical services, to all those individuals

deprived of their liberty and living in squalid conditions in the camps in North East

Syria.

In line with this, we wish to recall that the State’s obligation to allow access to

humanitarian services is contemplated by international law in several legal

instruments

. In this regard, a State has two sets of obligations: a positive obligation to

agree to and facilitate such services and a negative obligation not to impede the offer

and provision of humanitarian services to individuals and populations in need.

International humanitarian law clearly imposes an obligation to respect and protect

humanitarian actors. Parties to an armed conflict must protect civilian humanitarian

actors, not just from attack, but also from harassment, intimidation, arbitrary detention

and any other activities that might impede their work. Protecting humanitarian actors

is an indispensable condition for the delivery of essential care. Under this framework,

when the civilian population is not adequately supplied, no party to an armed conflict

may arbitrarily withhold consent to offers of legitimate humanitarian services from an

impartial humanitarian body.

Furthermore, we are deeply concerned by the dire, and sometimes fatal,

conditions children are facing in these camps. Several UN bodies have insisted on the

obligation imposed to all parts of a conflict to provide special protection to children

and respect the civilian and humanitarian character of camps and settlements. In its

general comment No. 5 (2003) on general measures of implementation of the

Convention on the Rights of the Child, the Committee on the Rights of the Child

noted that for rights to be meaningful, effective remedies must be available to redress

violations (para. 24).

Another vulnerable group that can be severely impacted by the conditions of

detention in these camps and the lack of humanitarian aid are women deprived of

liberty. Such deprivation could produce a disproportionate effect on women’s health,

including specifically their reproductive health, and on living conditions and would

constitute an act of violence against them. It should be considered that both causes

and consequences of the deprivation of liberty of women are gendered. Additionally,

they experience their confinement in specific ways and are often at risk of heightened

gender-based discrimination, stigma, and violence. How women experience this

deprivation will also differ, not only because of gender dynamics, but also because of

characteristics, such as age, disability, race or ethnicity or socioeconomic status, that

combine to produce distinct forms of discrimination and vulnerability.

In addition the situation of those individuals deprived of their liberty in the

camps is also addressed by international human rights law. In this regard, we highlight

in particular the right to food, to health and to an adequate standard of living, as well

as the absolute prohibition of torture, inhumane and degrading treatment as

guaranteed under the International Covenant on Economic Social and Cultural Rights

and the International Covenant on Civil and Political Rights.

It is our assessment that these rights absolutely fail to be adequately provided

to those individuals held in the camps. The failure to provide access to those in charge

of delivering humanitarian assistance only compounds the abuses and violations of

fundamental rights, including the non-derogable right to life and the right to be free

from torture, inhuman and degrading treatment that are taking place on a daily basis in

the camps, increasing human suffering and, potentially, the number of unlawful

deaths, particularly of women, girls and children.

Article 3(2) of the four Geneva Conventions, article 18 AP II and UNSC resolution 2175 para.3.

Ibid.

We therefore reiterate that humanitarian services should never be denied.

Humanitarian actors assist States in meeting their obligations to protect and fulfil the

inherent right to life, without discrimination, and to prevent the arbitrary deprivation

of life. By preventing or otherwise deterring those services through their

criminalization, for instance, or other measures, States violate their obligation to

prevent, combat and eliminate arbitrary killings and the deprivation of life

The heightened military presence in the camps to oversee the registration

exercise, included over 1,000 additional military officers, is also a cause for concern.

Intensified military presence in these camps can raise the fears of those deprived of

their liberty and create additional tensions within the camps. We are concerned that

the excessive militarization in the camps could also be linked to violence against

women and are among the risks specifically faced by women in these camps. We are

also very concerned about reports that women who have been displaced to the newly

created space in Roj camp have not been able to contact anyone, including their

families, about their situation, to confirm their presence, whereabouts or wellbeing,

since having been transferred. There are also suggestions of an extended

incommunicado quarantine period upon transfer from Al-Hol to Roj, as a result of

COVID-19. This may amount to incommunicado detention which is prohibited under

international law.

Collection and use of biometric data

Regarding the collection and use of markers related to the physiological

characteristics during the

‘registration

and verification exercise’ we note that UN

Security Council 2396 (2017) requires States to

“develop

and implement systems to

collect biometric data (…) in order to responsibly and properly identify terrorists,

including foreign terrorist fighters” in compliance with all their obligations under

international law. Indeed, the resolution affirms that respect for human rights,

fundamental freedoms and the rule of law are complementary and mutually

reinforcing with effective counter-terrorism measures and are an essential part of a

successful counter-terrorism effort. The resolution confirms the importance of respect

for the rule of law so as to effectively prevent and combat terrorism. We stress that

failure to comply with these and other international obligations, including under the

Charter of the United Nations, is one of the factors contributing to increased

radicalization to violence and fosters a sense of impunity. Where such data is being

collected by a non-State entity on your country’s nationals and as it may be shared

with other States, or accessed by either the territorial State of collection or by other

States directly or indirectly, we stress that particular obligations lie with the country

of nationality to seek to prevent the collection, storage use or transfer of such data in

ways that would be inconsistent with international human rights law.

Biometrics data provides for a singularly useful tool for accurate and efficient

identification and authentication of a person,

and is therefore particularly sensitive.

There are human rights implications to the use at each stage of data usage, including

collection, retention, processing and sharing. Indeed, the use of biometrics data can

seriously impact on the right to privacy (article 17, ICCPR), which functions as a

Saving life is not a crime”, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions

(A/73/314):

https://undocs.org/A/73/314.

CCPR/C/CG/35, paras. 35 and 56.

Certain biometric markers, including finger- and palm prints, facial/ iris scans, may be less reliable in case of

children. For this reason (among others), their collection and use is not always appropriate in the case of children.

UNICEF has developed guidelines biometrics and children:

https://data.unicef.org/resources/biometrics/.

gateway right to the protection of a range of fundamental rights. Mass collection also

creates a need for secure systems for data storage and processing to mitigate the risk

of unauthorized access. The unique transborder aspects of data collection, use, storage

and transfer make the obligations of states of nationality in respect of their citizens’

rights particularly acute.

Further, due to its sensitive character, biometric data, should always be

collected and handled in line with recognized data protection principles, including the

principles of lawfulness and fairness, transparency in collection and processing,

purpose limitation, data minimization, accuracy, storage limitation, security of data

and accountability for data handling. While applying data protection rules in an

amended format to national security processes may be warranted, such adjustments

must not lead to curtailed safeguards, insufficient transparency or inadequate

oversight. Importantly, the principle of purpose limitation must be respected. Purpose

limitation requires data to be collected with a specific, defined and legitimate purpose

in mind (purpose specification) and not used for a purpose that is different from or

incompatible with the original purpose (compatible use). In the particular case of

children,

“the

best interest of the child” must be respected throughout the process and

the assessment of the necessity and the proportionality of the measures must be strict.

In this case, it seems entirely unclear, based on the information available to us, how

collection of data on your Excellency’s minor nationals can meet any best interest test

in these circumstances.

We recognise the use of biometric data may be uniquely helpful and serve the

interest of the child in a number of instances. This includes cases when such data is

employed to prove the child’s parentage and reunite them with their family or with the

aim of using such parentage information to ascertain the child’s nationality in view of

their repatriation. At the same time, we would like to stress our concerns related to

data usage and, in particular, long-term retention of biometric data of minors based on

the child’s family affiliation. Data collection and retention, if carried out by a non-

State entity to serve the security interests of third party States when it is for

monitoring or surveillance purposes, should in normal circumstances be based, among

others, on a threat assessment, and the necessity for the data to be retained and for

children to be included in databases or watch lists would be human rights proofed. In

these circumstances, the clear and present dangers to your Excellency’s minor

nationals cannot be overstated. Collection, retention and treatment of data belonging

to children must always comply with the safeguards contained in the Convention on

the Rights of the Child and, in particular, with the requirement that any relevant

measures be

“in

the best interest of the child”. Relevant measures must also be subject

to independent oversight. Such oversight should include review by a public authority

specifically tasked with protecting the rights of the child (such as an ombudsperson)

or ensure that experts duly specialized in children’s rights are part of the oversight

body’s composition.

Furthermore, the Special Rapporteur on the right to privacy has cautioned that

the processing of biometric data should be undertaken only if there are no other less

intrusive means available and only if accompanied by appropriate safeguards,

including scientifically recognized methods, and strict security and proportionality

protocols.

Relevant authorities must pay due regard to data minimization by

restricting collection and processing measures to data that is necessary or relevant for

accomplishing the legitimate purpose for which data was collected.

A/HRC/43/52, para. 48 (v).

We have serious concerns that in the case of the registration and verification

exercise, respect for these principles and requirements was entirely lacking. We are

concerned about the lack of information regarding measures taken to ensure informed

consent prior to providing data, or to protect the data collected and ensure its

confidentiality or on measures taken to manage the data in line with standards of data

protection, taking into consideration a possible trans-border aspect that increases

opacity and further reduces control and oversight of these practices and accountability

for violations of human rights.

The Special Rapporteur on the promotion and protection of human rights and

fundamental freedoms while countering terrorism has taken the view that States must

avoid any form of cross-border counter-terrorism cooperation that may facilitate

human rights violations or abuses. States must also be mindful that state responsibility

under international law may be triggered through the sharing of information that

contributes to the commission of gross human rights violations. Cross-border

intelligence-sharing arrangements raise particular human rights concerns.

International human rights mechanisms have repeatedly warned against such

arrangements falling short of international human rights norms and standards,

particularly the lack of a human rights-compliant legal basis and of adequate

oversight.

Private or sensitive information concerning individuals shared with foreign

intelligence agencies without the protection of a publicly available legal framework

and without proper safeguards, make the operation of such regimes unforeseeable for

those affected by it. It states the obvious that the situation in which your nationals find

themselves, specifically indeterminate detention in makeshifts tents with few material

resources and under the control of a non-State actor does not make the materialization

of these protections likely.

Thus, the collection of intimate and private data in these

circumstances makes the responsibilities of states toward their nationals detained in

these camps all the more compelling, to exert all available resources and influences

to ensure the protection of their nationals.

In this respect, we are gravely concerned at the lack of clarity and opacity

concerning the reasons for which such information was collected, and whom they will

ultimately benefit, contrary to the key principles of purpose limitation and compatible

use, existence of a legitimate aim, and respect for the principles of proportionality and

necessity, which cannot be evaluated given the lack of transparency. Where

governments benefit from the collection of such data, particularly in the intelligence

or security realm there is a corresponding necessity to ensure that human rights

obligations are optimized in these sub-optimal circumstances. This is compounded by

an apparent lack of legal basis, which cannot be replaced by an open letter to

residents, as well as an absence of any oversight and safeguards for your nationals in

these detention sites.

Biometric data collection and non-discrimination

International human rights law is based on the premise that all persons, by

virtue of their humanity, should enjoy all human rights without discrimination on any

grounds. The prohibition on racial discrimination has achieved the status of a

peremptory norm of international law and as an obligation

erga omnes

which is

enshrined in all core human rights treaties.

See e,g. A/69/397 and A/HRC/13/37

The use of emerging digital technologies exacerbate and compound existing

inequities, many of which exist along racial, ethnic and national origin grounds. In

some cases, this discrimination is direct, and explicitly motivated by intolerance or

prejudice. In other cases, discrimination results from disparate impacts on groups

according to their race, ethnicity or national origin. And in yet other cases, direct and

indirect forms of discrimination exist in combination, and can have such a significant

holistic or systemic effect as to subject groups to racially discriminatory structures

that pervade access to and enjoyment of human rights in all areas of their lives.

In her report to the Human Rights Council (A/HRC/44/57), the Special

Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and

related intolerance highlighted that examples from different parts of the world show

that the design and use of different emerging digital technologies can be combined

intentionally and unintentionally to produce racially discriminatory structures that

holistically or systematically undermine enjoyment of human rights for certain

groups, on account of their race, ethnicity or national origin, in combination with

other characteristics.

In her report to the General Assembly (A/75/590), the Special Rapporteur on

contemporary forms of racism, racial discrimination, xenophobia and related

intolerance addresses the impact of and concerns resulting from the use of emerging

digital technologies on migrants, stateless persons, refugees and other non-citizens

including the risk of racial and ethnic profiling in border enforcement. Data collection

and the use of new technologies, particularly in such contexts characterized by steep

power differentials, raise issues of informed consent and the ability to opt out. It is

unclear what happens to the collected biometric data and whether affected groups

have access to their own data. In this context [Al-Hol Camp], the affected population

have no control over how the data collected from them is shared. The rise of

“surveillance

humanitarianism”, whereby increased reliance on digital technologies in

service provision perversely results in the exclusion of refugees and asylum seekers

from essential basic necessities such as access to food. Conditioning food access on

data collection removes any semblance of choice or autonomy on the part of refugees

–

consent cannot freely be given where the alternative is starvation. In the current

context of conflict, potential harms around data privacy are often latent and violent in

conflict zones, where data compromised or leaked to a warring faction could result in

retribution for those perceived to be on the wrong side of the conflict. Data may be

shared in ways that increased their risk of

refoulement,

increasing their vulnerability

to human rights violations in the event of forcible and other forms of return of these

groups to a country where their safety is at risk.

Specific impact on women and children due to their alleged association with

terrorist groups

We are gravely concerned that the verification and collection exercise also

targets women and children, a concern made particularly acute given the particularly

harsh situation faced by women and children deprived of their liberty, due to their

alleged links to terrorist groups.

At the outset, we note that the human rights impact surrounding data collection

practices are likely to be amplified in case of groups and persons who are already

marginalized or discriminated against, including women, children, members of

minorities and groups and persons in vulnerable situations, such as persons affected

by armed conflict and other types of violence.

We are particularly mindful of the critical need to understand that women’s

and girls’ association with terrorist groups is highly complex. It involves a range of

factors, including their age, and backgrounds, and States must be mindful of the

potential for coercion, co-option, grooming, trafficking, enslavement and sexual

exploitation when examining their agency, or lack thereof. States must always

undertake individualised assessments pertaining to the specific situation of women

and girls.

States must be conscious of the gender-specific traumas than can be

experienced by women and girls, as well as the various human rights violations that

they are subjected to in the context of their detention and the impact of those

conditions on their mental and physical health. Adequacy of alternatives to detention

for persons in vulnerable situations and in particular, victims of trafficking is critical.

Victims or potential victims of trafficking should not be placed under detention or any

alternative to it, they should be promptly identified and referred to the appropriate

services for early support and long term assistance. It is imperative that State

responses do not perpetuate or contribute to further victimisation of those who have

already experienced profound violence and trauma.

Furthermore, we would like to draw the attention of your Excellency’s

Government to the OHCHR Recommended Principles and Guidelines on Human

Rights and Human Trafficking; States have an international obligation not only to

identify traffickers but also to identify victims of trafficking. It is highlighted that a

failure to identify a trafficked person correctly is likely to result in a further denial of

that person’s rights. The Recommended Principles and Guidelines state, therefore,

that such victims must be provided with protection, not punishment, for unlawful acts

committed as a direct consequence of being trafficked. Recommended Principle 7,

concerning protection and assistance to victims of trafficking, provides that

“trafficked

persons shall not be detained, charged or prosecuted.” Recommended

Principle 8 prescribes that States shall ensure victims of trafficking

“are

protected

from further exploitation and harm and have access to adequate physical and

psychological care.”

In addition, with regards to women deprived of liberty, the Working Group on

Discrimination against Women and Girls expressed in its thematic report

(A/HRC/41/33) that measures to combat terrorism and corresponding national

security measures sometimes profile and target women, in particular those from

certain groups and sometimes even women human rights defenders. It has further

recommended States to ensure that measures addressing conflict, crisis, terrorism, and

national security incorporate a women’s rights focus and do not instrumentalise

women’s deprivation of liberty for the purposes of pursuing government aims. As

highlighted in its thematic report on Health and Safety (A/HRC/32/44), the Working

Group stresses that women’s safety should be addressed as an integral aspect of

women’s health. Women’s exposure to gender-based violence in both the public and

private spheres, including in conflict situations, is a major component of women’s

physical and mental ill health and the destruction of their well-being, and constitutes a

violation of their human rights.

See in particular CTED Trends Report on the Gender Dimensions of the Response to Returning Foreign Terrorist

Fighters (2019) and UNDP/ICAN, Invisible Women (2019).

The UN Global Compact/CTITF Working Group on promoting and protecting human rights and the rule of law

while countering terrorism,

“Guidance

to States on Human Rights-Compliant Responses to the Threat Posed by

Foreign Fighters” (2018)

The fact that children were included in this exercise is also a cause for

profound concern. We remind your Excellency’s government that children deprived

of their liberty in Al-Hol and other places in North East Syria remain acutely

vulnerable to violence and abuse. Children held in these camps are victimised on

multiple ground and continue to be denied the protection to which they are entitled

under international humanitarian and international human rights law. Indefinite

detention without any process or review constitutes in itself a serious violation of

human rights law. From the conditions of their detention and the lack of basic care,

sufficient food, shelter from the elements, safe water, adequate sanitation medical

services 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 is not only

severe but complete. As a result of repeated exposure to violence and insecurity,

children exhibit signs of trauma, including psychological and behavioural disorders,

as well as chronic fatigue and acute stress.

We have been informed that families of foreign ISIL fighters, including

women and children, suffer discrimination on the basis of their alleged affiliation with

the group, in violation of international humanitarian law, facing restrictions on their

movements and access to (sometimes refusal of) medical facilities, as well as

harassment, abuse and looting of tents by camp guards.

Inside camps in areas under

the control of the SDF,

“foreign

children with familial links to ISIL fighters continued

languishing in despair while increasingly vulnerable to abuse, years after they were

brought into the country”.

The United Nations Global Study on Children deprived of

liberty

has highlighted that

“the

trauma experienced by minors (and adults) has not

stopped with the physical liberation from ISIS. For some, placement in detention

centres or segregated IDP camps not only prolongs physical isolation and deprivation

but also solidifies their new identity as

‘IS

families’”.

Many children carry the

stigma of association, whether they were involved or not, and face rejection, and

reprisals from their home communities, which might lead into re-recruitment by

armed groups.

Children should not have to carry the terrible burden of simply being

born to individuals related to or associated with designated terrorist groups

Due process and security

We wish to highlight our concerns about the lack of clarity around the purpose

of the exercise, particularly as it has been reported that reasons for the verification and

collection exercise appear to relate to the security situation in the camp (improve

security and control within the camp and the surrounding area by moving tents apart,

disrupt radicalisation activities, prevent the operation of sharia courts, prevent

criminal activities including assassinations and the smuggling of people and material).

Notwithstanding the security concerns that can exist in a precarious environment, we

note the difference of treatment in this respect between

‘third

country nationals’ and

other individuals detained in the camps. We respectfully recall the key principles of

equality and non-discrimination, which require that a justification be provided for

difference of treatment between categories of individuals apparently in a similar

A/HRC/43/CRP.6, para. 3.

A/HRC/43/57, para. 61.

A/HRC/43/57, para.96-97

See https://omnibook.com/Global-Study-2019

Joana cook and Gina Vale,

‘From

Daesh to Diapora: Tracing the women and Minors of Islamic State”, ICSR,

2018, p.53, quoted in the Global Study on Children deprived of their Liberty y, p. 606.

Global Study on Children deprived of their Liberty, p. 607.

UNCRC, article 2.2.

situation. Significant threats to the security of the camp can emanate from

‘third

country nationals’ and other individuals detained in the camps. The difference

between the two groups does not appear immediately, or without objective

justification, as relevant to the determination of requisite measures to address a

security threat in the camp. The discriminatory character of the exercise would also

deprive it of other fundamental requirements of necessity and proportionality. Indeed,

the singling out of a category of individuals for this exercise cannot be seen as either

necessary or proportionate if other individuals who are in the same situation are not

treated alike.

The Special Rapporteur on trafficking has raised in her previous reports

specific concerns about the use of profiling techniques.

We would like also to

remind that the OHCHR Recommended Principles and Guidelines on Human Rights

at Borders (2014), provides that measures taken to address irregular migration, or to

counter terrorism, human trafficking or migrant smuggling, shall not be

discriminatory in purpose or effect, including by subjecting migrants to profiling on

the basis of prohibited grounds, and regardless of whether or not they have been

smuggled or trafficked. Further the Guidelines provide that:

“States

and, where

applicable, international and civil society organizations, should consider: […] (2)

Ensuring that non-discrimination provisions in legislation are applicable to all border

governance measures at international borders; (3) adopting or amending legislation to

ensure that respect, protection and fulfilment of all human rights, including mandatory

protection and assistance provisions, are explicitly included in all border related

legislation, including but not limited to legislation aimed at addressing irregular

migration, establishing or regulating asylum procedures and combating trafficking in

persons and smuggling of migrants.”

Consequently, we have serious and grave concerns about the legitimacy of the

aim of the exercise and its purpose, concerns that are compounded by the lack of an

objective justification for the sole inclusion of third country nationals, including

women and children.

We fear that this exercise was in fact aimed at identifying third

country nationals who may pose a security risk, and evaluating the degree of that risk,

information that could be further communicated and used by states of origin, as a

basis for deciding the further course of action for their nationals, including trial and

repatriation, or children’s separation from their families, including that of male

children for further detention. These concerns are compounded by recent reports

indicating that the individuals transferred to Roj were the ones apparently identified as

posing a high-security risk, although the legal and practical basis for such a

determination is not shared nor is any legal process available to challenge it.

Determining the security risk posed by individuals and using any ensuing

classification as a basis for measures that can significantly impact human rights is

likely to be fundamentally arbitrary and at odds with basic principles of due process.

The implications of widespread assumptions about the threat posed by any individual

transferred to a camp, in circumstances where there is no clarity about the basis for

the transfer, and no way in which these transfers could be either prevented or

contested, will inevitably lead to increasing and continuing stigmatisation of these

families. This would raise very serious human rights questions related to due process,

the right to a fair trial, the treatment of individuals, including the absolute prohibition

of arbitrary detention. And the right to physical integrity, as well as the arbitrary

deprivation of nationality and freedom of movement, including the right to enter one’s

A/HRC/38/45 para 67.

country, the right to a family life, and the deprivation or denial of other rights based

on the data collected.

Under international law as well as under UN Security Council resolutions,

States have obligations to hold individuals accountable for the serious and systematic

crimes committed in Syria and Iraq, while strictly complying with the right to a fair

trial. We take the view that this cannot be currently done in the region, given the

profound fair trial and rule of law concerns about judicial systems in Iraq and Syria

and the implications should trials be conducted by a non-State actor in the region.

While recognising that there are some advantages to trials occurring near evidence,

victims and witnesses, the reality is that in the absence of fair and thorough

procedures, there will not be effective justice in the region, most particularly for the

victims of such crimes.

UN reports find that basic fair trial standards were not

respected in terrorism-related trials in Iraq, thus placing defendants at a serious

disadvantage and compromising the trial outcomes and the justice process as a whole.

There is no substitute for fair trial and meaningful accountability. Weak and

compromised accountability undermines the rights of victims and contributes to

further instability in the region and beyond. There is an absolute obligation on States

whose nationals are subject to the mandatory death penalty in patently unfair trial

settings to vindicate and protect their legal rights. Governments also have a duty to

protect the absolute prohibition of torture and of refoulement.

There is an urgent need for justice, truth and reparation for all of the victims of

the very serious violations of human rights and humanitarian law that have occurred

in the region. States that can deliver justice in accordance with international human

rights law therefore have a responsibility to prosecute individuals against whom there

is sufficient evidence of criminal behaviour, and sanction them appropriately through

fair trials that comply with due process.

We are extremely concerned at the continued detention, on unclear grounds, of

these women and children in these camps. We wish to remind your Excellency’s

government of the prohibition of arbitrary detention,

recognised both in times of

peace and armed conflict, and that together with the right of anyone deprived of

liberty to bring proceedings before a court in order to challenge the legality of the

detention, are non-derogable

under both treaty law and customary international law.

Arbitrary deprivation of liberty can never be a necessary or proportionate measure,

given that the considerations that a State may invoke pursuant to derogation are

already factored into the arbitrariness standard itself. Thus, a State can never claim

that illegal, unjust, or unpredictable deprivation of liberty is necessary for the

protection of a vital interest or proportionate to that end. Further, administrative

security detention presents severe risks of arbitrary deprivation of liberty.

We are

mindful of the exceptional circumstances of the deprivation of liberty of these

individuals. We remain nonetheless deeply concerned that in the present case, none of

these conditions - which remain applicable in the most extreme situations - appear to

https://news.un.org/en/story/2020/01/1056142;

UN Human Rights Committee, General Comment 35, para. 12.

Human Rights Committee, general comment No 29 (2001) on derogation during a state of emergency, paras. 11

and 16. See also Draft Principles and Guidelines on remedies and procedures on: The right of anyone deprived of

his or her liberty by arrest or detention to bring proceedings before a court without delay, in order that the court

may decide without delay on the lawfulness of his or her detention and order his or her release if the detention is

not lawful, Principle 4.

UN Human Rights Committee, General Comment 35, para. 15.

be respected and that no steps towards assessing individual risk or terminating or

reviewing the legality of detention, have been taken, despite many of these individuals

being in the camps for a year and a half.

We highlight that, according to international law, children are considered

vulnerable and in need of special protection based on their age. Consequently, States

must treat children, including children related to or associated with designated

terrorist groups, primarily as victims when devising responses, including counter-

terrorism responses.

International law is very clear concerning the detention of

children. In all cases, detention should be used as a measure of last resort and for the

shortest amount of time possible, in conformity with the best interest of the child also

taking into account the extreme vulnerability and need for care of unaccompanied-

minors.

Children who were detained for association with armed groups should be

recognised as victims of grave abuses of human rights and humanitarian law, recovery

and reintegration and, where possible, family reunification should be prioritized.

this respect, we also note the fundamental right to a child’s family life, which includes

the right to not be arbitrarily separated from their parents and to maintain contact with

their parents if separation occurs (article 9 UNCRC). States should always place the

child at the centre of considerations, and help ensure their rights, even when the child

is considered a potential security risk,

or where the child’s interests conflict with the

State’s perceived security interests. States and other parties to the armed conflict must

not detain children illegally, or arbitrarily, including for preventive purposes.

In line

with UN Security Council resolution 2427, States should adopt and implement

standard operating procedures for the immediate and direct handover of children from

military custody to appropriate child protection agencies. All States have a

fundamental duty always to take measures in the best interest of the child, and to

respect, protect and fulfil the rights of children that are immediately impacted,

particularly the right to life, and the right to be free of inhumane and ill treatment and

all forms of physical and mental violence, neglect, and exploitation. Children who

were detained for association with armed groups should be recognised as victims of

grave abuses of human rights and humanitarian law, recovery and reintegration and,

where possible, family reunification should be prioritized.

Duty to act with due diligence to protect the rights of nationals deprived of

their liberty in the camps

We would wish to highlight a few points that may be of relevance regarding

issues raised in this communication and impact on any further course of action. In our

view, States have a duty to act with due diligence and take positive steps and effective

measures to protect vulnerable individuals, notably women and children, located

outside of their territory where they are at risk of serious human rights violations or

abuses, and where their actions or omissions can positively impact on these

See United Nations Office on Drugs and Crime (UNODC), Handbook on Children Recruited and Exploited by

Terrorist and Violent Extremist Groups: The Role of the Justice System (Vienna, 2017), chap. 2.

CCPR/C/CG/35, para. 18.

Global Study on Children deprived of their Liberty , p. 615.

UN Counterterrorism Centre,

“Handbook

on Children affected by the FTF Phenomenon”, 2019, para. 62.

Global Study on Children deprived of their Liberty, p. 615.

Global Study on Children deprived of their Liberty , p. 615.

individual’s human rights.

It is also inherent in a State’s obligation to take positive

preventive operational measures to protect the right to life.

This is also rooted in the

need to avoid allowing a State to perpetrate violations on the territory of another State

that it could not perpetrate on its own,

which is a guiding principle when considering

extra-territorial jurisdiction. A state's responsibility may be engaged on account of

acts which are performed, or which produce effects, outside its national borders, or

which have sufficiently proximate repercussions on rights guaranteed under

international human rights law, even if those repercussions occur outside its

jurisdiction.

This is particularly relevant, where a State’s actions and omissions can

impact on and provide protection to rights that are essential to the preservation of

values enshrined in international treaties and customary international law, human

dignity and the rule of law and amount to jus cogens or non-derogable customary law

norms.

Such an approach is already grounded in many well-established aspects of

international human rights law, such as existing prohibitions relating to the transfer of

individuals between jurisdictions where there is a risk of exposure to treatment that is

contrary to fundamental human rights, and in a State’s positive obligation to provide

effective protection to children and other vulnerable persons and to take reasonable

steps to prevent ill-treatment of which the authorities had or ought to have had

knowledge.

It is also inherent in a State’s obligation to take positive preventive operational

measures to protect the right to life,

namely that a State may exercise control over a

person’s rights by carrying out activities which impact them in a direct and reasonably

foreseeable manner, meaning that a State’s responsibility to protect may thus be

invoked extra-territorially in circumstances where that particular State has the

For the full position on this issue, see Submission by the UN Special Rapporteur on the promotion and protection

of human rights and fundamental freedoms while countering terrorism and the UN Special Rapporteur on arbitrary,

summary and extra-judicial executions in the case of H.F. and M.F. v. France (Application no. 24384/19) before

the European Court of Human Rights,

https://www.ohchr.org/Documents/Issues/Terrorism/SR/Final-

Amicus_Brief_SRCT_SRSsummex.pdf.

ECtHR,

Opuz v Turkey,

Application No 33401/02, 2009; ECtHR,

Osman v United Kingdom,

Application No.

23452/94 (1998), Z and Others v the United Kingdom [GC], Application no 29392/95 (2001) and Talpis v. Italy,

41237/14.

Lopez Burgos v. Uruguay, Communication No.

052/1979,

29 July 1981, para. 12.3.

See ECtHR, Soering v. The United Kingdom, 7 July 1989, app. no. 14038/88; ECtHR, Drozd and Janousek v.

France and Spain, 26 June 1992, app. no. 12747/87; ECtHR, Ilascu and Others v. Moldova and Russia (48787/99)

(2004), paras. 317 and 330-31; and Al-Skeini and Others v. United Kingdom, para. 131. See also Human Rights

Committee Vidal Martins v. Uruguay, Communication No.

57/1979,

23 March 1982, para. 7, concerning State

jurisdiction over nationals living abroad in relation to the State’s exercise of the power to issue a passport.

One example of the link between prevention and obligations beyond the principle of jurisdiction can be found in

the exclusionary rule contained in article 15 of the CAT and included in article 3 of the ECHR: judicial and

administrative authorities of states parties are prevented from invoking information extracted by torture in any

proceedings, irrespective of the facts of where and by whom the respective act of torture was perpetrated.

According to Manfred Nowak,

“in

the age of globalization, these extraterritorial obligations of the CAT become

increasingly important and may also serve as a model for other human rights treaties. To some extent, recently

adopted UN Conventions on the Protection of All Persons from Enforced Disappearance and on the Rights of

Persons with Disabilities have been modelled on the extraterritorial obligations of the CAT and confirm this global

trend”. Manfred Nowak,

‘Obligations

of states to prevent and prohibit torture in an extraterritorial perspective’ in

Mark Gibney and Sigrun Skogly (eds),

Universal Human Rights and Extraterritorial Obligations

(Pennsylvania

Press 2010).

Article 3 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, ECtHR, Soering v. the United Kingdom, Application No. 14038/88, 1989; ECtHR, Saadi v. Italy

[GC], Application no.

37201/06,

2008, ECtHR, Othman (Abu Qatada) v. the United Kingdom, Application No.

8139/09, 2012.

ECtHR,

Opuz v Turkey,

Application No 33401/02, 2009; ECtHR,

Osman v United Kingdom,

Application No.

23452/94 (1998), Z and Others v the United Kingdom [GC], Application no 29392/95 (2001) and Talpis v. Italy,

41237/14.

capacity to protect the right to life against an immediate or foreseeable threat to life.

The sustained reporting and investigation on the situation in the camps

–

from

UN bodies, including the International Independent Commission of Inquiry on the

Syrian Arab Republic,

NGOs, National Human Rights Institutions,

the media

and

national judicial bodies

renders it impossible for any State to argue convincingly

that they do not know the risks to the mental and physical integrity of those

individuals held in northern Syrian Arab Republic, the foreseeable harm, and the

seriousness of the harm.

Both Al-Hol and Roj camps, which are run and administered by a non-State

actor representing the Kurdish authority, were established as a response to a

humanitarian catastrophe to host individuals who were displaced from former ISIL-

controlled territory. We have received information in relation to sustained contact of a

number of States with camp authorities and interventions regarding foreign nationals

in the camps.

These are reflected in the ability to return some nationals to their

countries of origin, or to sufficiently impact on camp authorities to allow or deny

family members from accessing individuals in the camps. This, in our view, reveals

the exercise of de facto, or constructive jurisdiction

over the conditions of their

nationals held in camps specifically because they have the practical ability to bring the

detention and attendant violations to an end through repatriation.

We have received

information indicating that the SDF have expressed their willingness to assist

governments in repatriating their citizens from the camp. As these

‘camps’

now

appear to function as detention and security facilities for over an approximate 10,000

women and children, including your nationals, your legal obligations as a result of the

continued detention of your nationals are more significant.

In practical terms, a number of actions and measures can be taken in order to

positively protect the fundamental rights of the individuals held in the camps, as the

Special Rapporteur on the promotion and protection of human rights and fundamental

https://www.ohchr.org/en/hrbodies/hrc/iicisyria/pages/independentinternationalcommission.aspx.

In August 2020,

the Commission of Inquiry reported that it had reasonable grounds to believe that - in holding tens of thousands of

individuals in Hawl camp and its annex, the majority of them children, for 18 months with no legal recourse - the

Syrian Democratic Forces have held individuals in inhuman conditions and that the on-going internment of these

individuals continues to amount to unlawful deprivation of liberty. A/HRC/45/31, para. 80.

Commission Nationale Consultative des Droits de l’Homme, Opinion on the French Under-Age Nationals

Detained in Syrian Camps, 24 September 2019.

See e.g.

https://www.washingtonpost.com/world/middle_east/syria-al-hol-annex-isis-caliphate-women-

children/2020/06/28/80ddabb4-b71b-11ea-9a1d-d3db1cbe07ce_story.html

Both the United Kingdom’s Special Immigration Appeals Commission and the Court of Appeal of England and

Wales have recently accepted that the conditions in both Roj and Hawl were sufficient desperate that they met the

threshold of inhuman or degrading treatment for the purposes of article 3 of the ECHR. United Kingdom SIAC,

Shamima Begum v. the Secretary of State, Appeal No: SC/163/2019, 7 February 2020, para. 130. See also [2020]

EWCA Civ 918 Case No: T2/2020/0644,T3/2020/0645 and T3/2020/0708, Court of Appeal on appeal from SIAC

(T2/2020/ 0644) (sitting also as a divisional court in CO/798/2020) (T3/2020/0708) and on appeal from the

administrative Court (T3/2020/0645) Shamima Begum v. SIAC and Secretary of State for the Home Department

and (1) the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism

and (2) Liberty, 9 July 2020, para. 11.

This information was gathered by RSI in the course of interviews conducted on the ground in the camps in early

February 2020. This information will be published in a forthcoming report from RSI, due for release at the end of

October 2020. See also Commission Nationale Consultative des Droits de l’Homme, Opinion on the French

Under-Age Nationals Detained in Syrian Camps, 24 September 2019, pp.8-9.

Note also the position of the French Commission Nationale Consultative des Droits de l’Homme:

“The

CNCDH

thus considers that the French nationals detained in the camps come under France’s jurisdiction in the meaning of

article 1 of the ECHR”, Opinion on the French Under-Age Nationals Detained in Syrian Camps, 24 September

2019, p.8.

Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms

while countering terrorism to the 75th session of the General Assembly, October 2020. See

https://undocs.org/A/75/337.

freedoms while countering terrorism has, in the context of her country work, seen

operationalized first hand. These include returning individuals to their country of

origin, either directly or through counterparts (other States, non-State actors or

humanitarian actors) present in the camps. We outline that under the Palermo Protocol

(article 8(1)), State Parties shall facilitate and accept, with due regard to the safety of

the person, the return of their nationals when they were victims of human trafficking.

The same duty is imposed for individuals who had only the permanent right of

residence at the time of entry into the territory of the receiving State. Partnerships can

be optimized in tracing, identifying and delivering the practical means to extract

individuals from territories under the control of non-state actors and ensure their safe

return to home countries.

A number of steps can be taken to ascertain nationality,

obtain assistance from state and non-state actors to move individuals from camps and

assist in air transport, and to provide humanitarian assistance and medical care before,

during and after transit.

The provision of consular assistance and the delivery of identity documents,

either directly or through counterparts, can also have a positive impact on the rights of

those individuals in the camps, bearing in mind nonetheless that the remedial nature

of both diplomatic protection and effective consular assistance frequently means that

it cannot effectively prevent an irreparable harm from being committed.

Conversely, withholding essential life-saving protection from an individual on the

grounds of their purported crime, or on the grounds of the purported crimes of their

spouses or parents, would violate both the State’s obligation to protect the right to life

and the prohibition against discrimination. The attribution of criminal behaviour to

children, particularly very young children in the camps, underscores the problematic

logic of state positioning in this regard. While cognisant of the difficulties at a

practical level that States may encounter in exercising their authority and duties in the

camps, these do not, however, displace the jurisdictional question, but will have to be

taken into account when it comes to assessing the proportionality of the acts or

omissions complained of.

Finally we recall that the Special Rapporteur on the promotion and protection

of human rights while countering terrorism considers the urgent return and

repatriation of foreign fighters and their families from conflict zones as the only

international law-compliant response to the increasingly complex and precarious

human rights, humanitarian and security situation faced by those women, men and

children who are detained in inhumane conditions in overcrowded camps, prisons, or

elsewhere in northern Syrian Arab Republic and Iraq. Such return is a comprehensive

response that amounts to a positive implementation Security Council resolutions 2178

(2014) and 2396 (2017) and is considerate of a State’s long-term security interests.

In connection with the above alleged facts and concerns, please refer to the

Annex on Reference to international human rights law

attached to this letter which

A/HRC/43/46/Add.1.

Preliminary Findings of the Special Rapporteur on the promotion and protection of human rights and fundamental

freedoms while countering terrorism on her visit to Kazakhstan:

https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24637&LangID=E.

Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms

while countering terrorism: Visit to France, 8 May 2019, A/HRC/40/52/Add.4, para. 47.

“The

Special Rapporteur

wishes to emphasize the important role that effective consular assistance plays as a preventive tool when faced

with a risk of flagrant violations or abuses of human rights, while also noting that the remedial nature of

diplomatic protection proceedings”.

ECtHR, Sargysan v. Azerbaidjan, Application No. 40167/06, 2017, para. 150.

https://www.ohchr.org/Documents/Issues/Terrorism/PositionSRreturnsFFsOct2019.pdf

cites international human rights instruments and standards relevant to these

allegations.

As it is our responsibility, under the mandates provided to us by the Human

Rights Council, to seek to clarify all cases brought to our attention, we would be

grateful for your observations on the following matters:

Please provide any additional information and/or comment(s) you may

have on the above-mentioned allegations.

Please provide any additional information and/or comment(s) you may

have on the above-mentioned transfer of families to the newly-

extended camp in Roj and on the legal basis for their transfer and

detention. Please provide any information you may have on the

measures your Government has taken to maintain contact and ensure

their well-being since the transfer.

Please clarify whether your Government was informed about the

registration, data-collection and relocation exercise and its purpose.

Please explain whether your Government has been informed by the

authorities carrying out this exercise about the next step following their

relocation to the other camp.

Please explain whether your Government was in any way involved in

requesting this exercise, or if the data collected or assessments made

were communicated to your Government.

Please explain what data-protection measures are available in your

national legal system to protect against the exploitation and use of such

data collected, stored, and used by other State actors with whom data

was shared as well as non-state actors against your nationals.

Kindly also explain how the collection of biometric data has complied

with medical ethics, the adequate provision of information and with

people’s right to informed consent.

Please provide information on the actions taken by your government to

protect the rights of children from your country being held in Al-Hol

and Roj camps to prevent irreparable harm to the lives, health and

security.

Please provide any information available on specific measures taken to

protect women and girls against acts of gender-based violence they

may face within the detention facilities and in the camps and to ensure

their access to health services, specifically in relation to their

reproductive health.

Please indicate the steps that your Excellency’s Government has taken,

or is considering to take, to ensure access to an effective remedy,

including through domestic judicial mechanisms, for your nationals

being held in Al-Hol and Roj camps who may be victims of human

10.

rights abuses, including trafficking in persons.

11.

Please provide any information you may have about the basis for the

transfer of families from Al-Hol to Roj, and the measures your

Government has taken maintain contact and ensure their well-being

since the transfer.

Please explain the measures that your government might have taken to

ensure that the rights of your citizens mentioned in this communication

were respected in this exercise.

12.

This communication and any response received from your Excellency’s

Government will be made public via the communications reporting

website

within

60 days. They will also subsequently be made available in the usual report to be

presented to the Human Rights Council.

While awaiting a reply, we urge that all necessary interim measures be taken

to halt the alleged violations and prevent their re-occurrence and in the event that the

investigations support or suggest the allegations to be correct, to ensure the

accountability of any person(s) responsible for the alleged violations.

We may publicly express our concerns in the near future as, in our view, the

information at hand is sufficiently reliable to indicate a matter warranting prompt

attention. We also believe that the wider public should be alerted to the potential

human rights implications of the above-mentioned allegations. Any public expression

of concern on our part will indicate that we have been in contact with your

Excellency’s Government’s to clarify the issue/s in question.

We would like to inform that a similar communication has been sent to other

countries whose nationals are also in detention in Al-Hol and Raj camps.

A copy of this communication has been sent to the Syrian Arab Republic and

the UNHCR.

Please accept, Excellency, the assurances of our highest consideration.

Fionnuala Ní Aoláin

Special Rapporteur on the promotion and protection of human rights and fundamental

freedoms while countering terrorism

Elina Steinerte

Vice-Chair of the Working Group on Arbitrary Detention

Agnes Callamard

Special Rapporteur on extrajudicial, summary or arbitrary executions

Michael Fakhri

Special Rapporteur on the right to food

Balakrishnan Rajagopal

Special Rapporteur on adequate housing as a component of the right to an adequate

standard of living, and on the right to non-discrimination in this context

Felipe González Morales

Special Rapporteur on the human rights of migrants

Fernand de Varennes

Special Rapporteur on minority issues

Joseph Cannataci

Special Rapporteur on the right to privacy

E. Tendayi Achiume

Special Rapporteur on contemporary forms of racism, racial discrimination,

xenophobia and related intolerance

Mama Fatima Singhateh

Special Rapporteur on the sale and sexual exploitation of children, including child

prostitution, child pornography and other child sexual abuse material

Nils Melzer

Special Rapporteur on torture and other cruel, inhuman or degrading treatment or

punishment

Siobhán Mullally

Special Rapporteur on trafficking in persons, especially women and children

Dubravka

Šimonovic

Special Rapporteur on violence against women, its causes and consequences

Pedro Arrojo-Agudo

Special Rapporteur on the human rights to safe drinking water and sanitation

Elizabeth Broderick

Chair-Rapporteur of the Working Group on discrimination against women and girls

Annex

Reference to international human rights law

In connection with the above alleged facts and concerns, we respectfully call

your Excellency’s Government’s attention to the relevant provisions enshrined in the

Universal Declaration of Human Rights (UDHR), the International Covenant on

Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil

and Political Rights (ICCPR) and the International Convention on the Elimination of

All Forms of Racial Discrimination (ICERD). More specifically we consider the

international human rights standards applicable under article 26 of the ICCPR, article

2 of the ICESCR and article 1 of the ICERD which prohibit discrimination; article 14

of the ICCPR and 10 of the UDHR which guarantee the right to fair criminal

proceedings; article 17 of the ICCPR which prohibits arbitrary and unlawful

interference with one’s privacy. We also consider several protective norms contained

in the United Nations Convention on the Rights of the Child (UNCRC) and in several

General Assembly and United Nations Security Council’s resolutions on this matter.

Humanitarian access:

We would like to refer your Excellency’s government to the international law

obligation to allow humanitarian access to principled humanitarian actors and to allow

principled humanitarian action,

so that these actors are able to respond to the needs

of civilians where neither the government nor a non-State party to the conflict is able

to do so. In this regard, the Security Council has also urged parties to allow full

unimpeded access by humanitarian personnel to all people in need of assistance.

We would like to remind that pursuant article 6 of the ICCPR, every human

has the inherent right to life. Therefore, saving lives should never be a crime

. Under

international human rights law, the inalienable right to life entails a negative

obligation on the State not to engage in acts, such as the prohibition, criminalisation,

or impediment of humanitarian actions, which would jeopardise the enjoyment of that

right. Acts prohibiting or otherwise impeding humanitarian services violate the

obligation of States to respect the right to life. Any death linked to such prohibition

would constitute an arbitrary deprivation of life, which engages the responsibility of

the State

In relation to this, we also wish to recall that the Human Rights Committee

recognised that the right to life should not be interpreted narrowly, noting that it

places not only negative obligations on States (e.g. to not kill), but also positive

obligations (e.g. to protect life), to ensure access to the basic conditions necessary to

sustain life. It has affirmed that measures that restrict access to basic and life-saving

services, such as food, health, electricity and water and sanitation are contrary to

article 6 of the ICCPR that protects the right to life. For instance, denying access to

The rules applicable in non-international conflicts are Common article 3(2) of the four Geneva Conventions and

article18 AP II. Customary international law rules apply alongside these treaty provisions. According to the

ICRC’s study of customary rules of international humanitarian law, these treaty provisions are mirrored in

customary law and the rules regulating humanitarian relief operations are essentially the same in both international

and non-international armed conflict.

UNSC resolution 2175, para. 3.

“Saving

life is not a crime”, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions

(A/73/314):

https://undocs.org/A/73/314.

Ibid.

water, through disconnections or otherwise, can be deemed to be in violation of the

right to life. Likewise, the failure of States to provide access to health care, including

through restrictions on health-care providers may violate the right to life

Furthermore, the United Nations Protocol to Prevent, Supress and Punish

Trafficking in Persons, Especially Women and Children, supplementing the United

Nations Convention against Transnational Organized Crime (Palermo Protocol)

encourages States to cooperate with non-governmental organisations in training law

enforcement, immigration and other relevant officials (article 10(2)). The Palermo

Protocol also encourages States to provide for the recovery of victims of trafficking in

persons in cooperation with non-governmental organizations (article 6(3)).

Cooperation with non-governmental organizations is similarly encouraged in the

OHCHR Recommended Principles and Guidelines on Human Rights and Human

Trafficking (Principle 6(1) and (2)).

We also wish to stress that the Security Council has resolved, through a certain

number of resolutions, that the protection of children from armed conflict is an

important aspect of any comprehensive strategy to resolve conflict, and should be a

priority for the international community.

Likewise, the Security Council has called

upon parties to armed conflict to respect the civilian and humanitarian character of

camps and settlements, and to take into account the particular needs of women and

girls, including in their design.

The General Assembly and other UN bodies have

repeatedly called for special protection afforded to children by all parties to conflict.

The Secretary-General identified six grave violations during armed conflict, based on

their suitability for monitoring and verification, their egregious nature and the severity

of their consequences on the lives of children,

whose legal basis lies in relevant

international law, including international humanitarian law, international human rights

law and international criminal law. Denial of humanitarian access, care and protection

to children is one such violation. Denial of humanitarian access to children and

attacks against humanitarian workers assisting children are prohibited under the 4

Geneva Convention on the protection of Civilian Person in time of War and its

Additional Protocols I and II.

Moreover, it is a principle of customary international

law that parties to conflict must allow and facilitate aid that is impartial and conducted

without adverse distinction to any civilian population in need, subject to their

Saving life is not a crime”, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions

(A/73/314):

https://undocs.org/A/73/314.

See, for example, United Nations Security Council Resolutions 1261 (1999), 1314 (2000), 1379 (2001), 1460

(2003), 1539 (2004), 1612 (2005), 1882 (2009), 1998 (2011) and 2068 (2012).

See United Nations Security Council Resolution 1325 (2000), para. 12, and similar subsequent resolutions 1820

(2009); 1888 (2009); 1889 (2010); 1960 (2011); 2106 (2013); 2122 (2013); 2242 (2015), 2467 (2019), and 2493

(2019).

UN General Assembly Declaration, A World Fit For Children, appended to A/Res/S-27/2 (2002) which was

unanimously adopted. See also A/RES/62/141 (2008), A/RES/63/241 (2009).

S/2005/72. See also UNSCR 1612 (2005) that tasks the UN Secretary-General to implement the monitoring

mechanism (para. 3).

Art. 23, 24, 38, 108 and 142 Geneva IV; art. 18 AP II. Such a denial of access may constitute a war crime: see

article 8(2)(b)(c)(e) of the Rome stature

Customary Rule 55

“The

parties to the conflict must allow and facilitate rapid and unimpeded passage of

humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse

distinction, subject to their right of control” in: International Committee of the Red Cross (Henckaerts, Doswald-

Beck eds.), Customary International Humanitarian Law Vol. 1: Rules, Cambridge University Press (2005), p. 193.