Introduction and background

On 12 October 2022, the United Nations Committee on Rights of the Child (the CRC Committee) issued a decision stating that Finland’s failure to repatriate children from refugee camps in the Syrian Arab Republic (Syria) constitutes a violation of the right to life, as well as the right to be free from inhuman and degrading treatment. The decision revolves around a topic that had sparked off a heated political debate in Finland, since the events of 2019 gave rise to tensions between national security concerns and the protection of human rights.

The decision against Finland is strongly linked to the CRC Committee’s previous decisions against France; the decisions on admissibility issued on 30 September 2020, and later the decisions on the merits issued on 8 February 2022.

The decisions draw a picture of a critical humanitarian crisis, illustrating the severe and hazardous conditions in the camps in Syria. These conditions have been widely reported in the media all over Europe. Hence, the situation in the camps, and the fact that a significant part of the refugees are children, was - and still is - largely in the public domain. Today, we know that many States have successfully made efforts to repatriate their nationals from the Syrian camps. However, over 50,000 people still remain in the Hawl camp alone (sometimes also referred to as the Al-Hol camp, in this case note the term Hawl camp is used), most of them being children (Medecins Sans Frontieres, press release, 7 November 2022). Indeed, the rights of the children in the camps appear still to be increasingly topical. As recently as in November 2022, the UN Human Rights Chief condemned the loathsome killing of two young girls at the Hawl camp and said that “This most recent incident must serve as a wake-up call to the international community to immediately repatriate the thousands of women and children - some of whom have been detained for years - from these camps back to their home countries” (Office of the High Commissioner for Human Rights, press release 18 November 2022).

Outline of the Substantive Issues

The authors of the communication No. 100/2019 (the communication), all nationals of Finland, are adults acting on behalf of their child relatives held in the Hawl camp. The child relatives in question were born between 2013-2017, and most of them were only two to three-year-old toddlers on the date the communication was submitted (i.e. 30 September 2019). In addition to the child relatives, the authors presented the communication on behalf of the 33 other Finnish children (herein the unidentified children) held in the Hawl camp as well. These 33 unidentified children were not identified in any precise manner, but the authors held that the identical circumstances, in which the children were situated, gave the authors standing to act on behalf of the whole group.

In sum, all the alleged violations were linked to the inaction of the State Party. According to the communication, by its inaction Finland, as a State Party to the CRC, contributed directly to the violations of the children’s rights, such as the right to life, health care and protection from arbitrary detention and ill-treatment. In support of the presented allegations, the camp’s hideous conditions were described in the communication. These extremely poor, unhygienic conditions have resulted in the children frequently suffering from malnutrition and various illnesses. In its observations, the Finnish Government did not deny the conditions of the camp (para 4.7). Lastly, the authors of the communication expressed the view that there were no obstacles preventing Finland from repatriating the child victims from the Hawl camp (para 3.3).

During the proceedings, the Finnish Government adopted a resolution UM/2019/203 and decided to repatriate the children, and their mothers if necessary. Initially, the Finnish authorities assisted in the repatriation of two Finnish children already in December 2019 (para 6.1). Finland has to date repatriated 35 persons from the camp, including 26 children (YLE news, 12 October 2022).

Procedural Issues

In its observation, the Finnish Government expressed the view that the communication should be considered inadmissible due to the authors’ lack of standing; lack of the CRC Committee’s competence ratione temporis; the non-exhaustion of domestic remedies; and the State Party’s lack of jurisdiction over the children (para 4.1). As a final remark, Finland also stated that the allegations presented in the communication were generic in nature and unrelated to the individual situations of the children (para 4.8). These complex procedural issues are central to the decision and its implications for future jurisprudence.

However, the CRC Committee considered the communication admissible. Conversely, insofar as the unidentified children were concerned, the CRC Committee considered that the authors were unable to justify their right to act on behalf of the unidentified children or that the relatives of these children would be unable to file a communication. Therefore, the communication filed on behalf of the 33 unidentified children was declared inadmissible pursuant to Article 5 (2) of the Optional Protocol on a Communications Procedure (paras 10.3 & 10.4). In addition, the child relatives of one of the authors left the Hawl camp on their own initiative and arrived in Finland on 31 May 2020 and therefore the Committee decided to discontinue the communication on their part (para 6.2 and 7.1).

Findings

After deciding on the admissibility of the communication, the CRC Committee assessed whether the Finnish State Party’s failure to take protective measures in respect of the child victims constitutes a violation of the rights of the child victims. In this case, the CRC Committee considered that Finland has the capability and the power to protect the rights of the child victims by repatriating them or providing other consular services. Consequently, the Committee found violations of Article 6 (1) and 37 (a) of the CRC, stating that the State Party has a positive obligation to protect the child victims from an “imminent risk of violation of their right to life and an actual violation of their right not to be subjected to cruel, inhuman or degrading treatment” (paras 11.5-11.7). The CRC Committee considered it unnecessary to examine the other alleged violations of the CRC as brought forward by the authors.

In conclusion, the CRC Committee declared that Finland is obliged to provide effective reparation for the violations suffered and prevent similar violations in the future. The Committee recommended Finland precisely to:

“(a) Take urgent positive measures to repatriate the child victims, acting in good faith;

(b) Support the reintegration and resettlement of each child who has been repatriated or resettled;

(c) Take additional measures, in the meantime, to mitigate the risks to the lives, survival and development of the child victims while they remain in the north-eastern Syrian Arab Republic.” (para 13).

Two members of the CRC Committee submitted a joint concurring opinion. While agreeing with the conclusion, they were of the view that the Committee should have found a violation of Article 6 (2) and Article 37 (b) of the CRC. In addition, they called attention to the situations of the 33 unidentified children by stressing that these children are even more vulnerable since no adult can defend their rights. Hence, these two members stated that greater efforts are demanded from the State Party in order to respect the rights of the unidentified children (Joint opinion, para 10).

Commentary

The CRC Committee’s decision is very significant in establishing violations by Finland of one of the most fundamental human rights, such as the right not to be subjected to cruel, inhuman, and degrading treatment. Finland, as well as the other Nordic countries, are generally more likely to de facto uphold and respect human rights compared to most other countries (Ojanen 2018). However, there is room for improvement. Typically, in the past human rights violations by Finland have related to rights such as the right to a fair trial, the right to respect for private and family life, and freedom of expression (e.g.: Ojanen & Salminen 2019). However, it is important to note that, as regards to Finland, the breaches of such absolute, non-derogable rights as the right not to be subjected to cruel, inhuman and degrading treatment have remained absent. The CRC Committee’s severe reprimand for Finland for the breach of Articles 6(1) and 37 (a), therefore, stands out in significance against this backdrop of Finland’s human rights track record.

In addition, the decision is also remarkable in reiterating the stance taken in the French cases on some important and challenging legal questions, such as the State Party’s positive obligation to protect the children outside its own territory and jurisdiction. In this regard, the CRC Committee’s decision can be understood as setting a significant precedent, even if it still leaves room for questions. For instance, the Committee could have reasoned even further to substantiate its findings and State Party obligations in the light of the facts of the case. On the different approaches to the question of jurisdiction, it suffices here to refer to previous Case Notes (Duffy; Sandelowsky-Bosman & Liefaard) concerning cases against France, in which these different approaches are already well covered.

In the below, some additional observations are made on the right to non-discrimination and the vulnerable position of the children.

Possible violations of other rights

The CRC Committee stated in its findings that it does not consider it necessary to examine the possible violations of other rights. However, in their concurring joint opinion, two members of the Committee went further on, asserting that the Committee should have examined the violation of articles 6 (2) and 37 (b) of the CRC (Joint opinion, para 1). As the situation in the Syrian camps has been a significant human rights issue, the CRC Committee’s decision not to engage with other rights is susceptible to criticism as further reasoning would have allowed for more substantiated conclusions.

In light of the case at hand, the examination of possible other violations seems even more necessary. This brings us to consider the circumstances and the position of the children. As observed by Sandelowsky-Bosman & Liefaard in their Case Note, the child victim’s suffering from the stigmatization, caused by their mothers’ assumed link to terrorist activities, should be considered when assessing the actions (or inactions) of the State Party concerned. Due to the circumstances, the children were essentially dependent on their mothers. This association and the inevitable dependence make the rights of the children more prone to conflict with national security concerns, although the children’s rights were announced as a priority in several countries. ¹

This tension between national security policies and human rights problems has been a relevant issue for a long time, for example, in the context of refugee and migration law as well as counter-terrorism policies. The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has previously raised concerns that in certain countries the focus on countering exclusively violent Islamist extremism leads to stigmatisation and obscures other forms of extremism, such as far right-wing violent extremism (Report of the Special Rapporteur 2020, para 28). Regarding the Syrian camps, women and children with alleged terrorist links already suffer from stigmatisation, marginalisation as well as higher risk for discriminatory action.

The risk of discrimination was noted in the communication, in which it was asserted that “the State Party failed to permit the children to access consular services, on the basis of their ethnicity, their mothers’ religious convictions or their age (art. 2) --” (para 3.1). Hence, the authors explicitly pointed out that the State Party’s failure would have been based on these certain, protected grounds. Treating the children unfavourably based on their ethnicity or age would constitute discrimination based upon their own personal, protected characteristic. Then again, treating the children less favourably because of “their mothers’ religious convictions” (or other status of the mother) would constitute discrimination by association. This refers to instances , when a person is treated less favourably due to their association with another person possessing a certain protected ground (Handbook on European non-discrimination law - 2018 edition, p. 51).

Discrimination by association is linked to Article 2 (2) of the CRC, which provides that “States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members”. As children are often discriminated against based on the status of their parent or other legal guardian, this second paragraph of Article 2 has been noted to be an important factor for ensuring children to benefit from all rights equally (Besson & Kleber 2019, p. 43).

The CRC Committee has not issued a General Comment on the right to non-discrimination, but as a General Principle of the CRC, several other General Comments take a stand on it. ²For instance, the CRC Committee has emphasized that the right to non-discrimination is not a passive obligation, and ensuring effective equal opportunities for all children may require positive measures (General Comment 14, para 41). However, Article 2 has been described as vague and hence, allowing also weaker interpretations (Besson & Kleber 2019, p. 70).

Considering the facts of the present case, I agree with the view expressed by Sandelowsky-Bosman & Liefaard that by establishing a violation of Article 2, the CRC Committee could have recommended reparations more profoundly. Indeed, the child victims’ dependence on their mothers and the association with the mothers’ status, leading to social stigma and negative stereotyping, can be seen determining the whole situation. Hence, stereotyping and stigmatization and, more generally, discriminatory structures constitute important aspects of the case, which in my view defends the need to consider Article 2. In sum, the CRC Committee could have elaborated its own approach and interpretation on the right to non-discrimination, reinforcing its status and content. On the one hand, the clarification on the Article 2 in general would have been welcome input, considering the criticism on it being vague. On the other hand, in this particular case, the CRC Committee could have addressed the issues related to Article 2 (2) of the CRC, that is discrimination by association. Moreover, it is also noteworthy that the discriminatory impact of stereotyping by ethnic origin has been noted in the jurisprudence of the European Court of Human Rights (Lingurar v. Romania, paras 74-78), and thus, the CRC Committee’s view on that aspect would have been a valuable step towards tackling the issues related to discriminatory stereotypes and social stigma. (cf. anti-stereotyping approach to gender discrimination Timmer 2011).

The vulnerable situation of the children

The general and specific vulnerabilities of the children pose serious challenges and risks for the children and their rights, leading to the fact that they are dependent upon others for protection (Sandberg 2015). Also, in general, vulnerability has become a very important, yet developing concept in the context of human rights. It has been extensively examined lately, for example, in the context of the jurisprudence of the European Court of Human Rights (e.g., Heri 2021). As Timmer et al (2021) conclude, developing possibilities of vulnerability as a heuristic tool may lead to better human rights practices.

Bearing all this in mind, the vulnerability of the child victims deserves attention, especially due to the specific vulnerabilities in this present case, such as the displacement. In their joint concurring opinion, the two members of the CRC Committee stressed the extreme vulnerability of the children in a conflict zone. Moreover, they underlined the situations of the 33 unidentified children, arguing that these children are in even more vulnerable situation due to the fact that no adult is able to defend their rights (Joint opinion, para 10). Contrary to the concurring opinion, the CRC Committee did not adopt the vulnerability approach in its decision. In my view, the vulnerability of the children should have been recognized and addressed explicitly in the decision as a possibility to emphasize the State Party’s positive obligations. Moreover, reasoning in terms of vulnerability could have added value by acknowledging the situation of the unidentified children, stressing the fact that the State Party has the possible capability to identify these children. Now, it seems that the inadmissibility due to the anonymity leaves the unidentified children voiceless, as the authors of the communication have not, in fact, been able to identify them, revealing a possible gap in the protection mechanism.^{3, 4, 5}

Children’s rights as ‘a political hot potato’?

The political debate around the repatriation of Finnish nationals from Syrian refugee camps was (and maybe still is) tense and flammable. It illustrates how the State Party’s international human rights obligations and, moreover, the State Party’s capability to protect and fulfil rights, are dependent on the political situation, even when it comes to legally binding international obligations. At its worst, the dependence on political decisions and becoming a ‘political hot potato’ might lead to neglect and delay in implementing the State Party’s binding human rights obligations. Thus, as already pointed out in a previous Case Note concerning the CRC Committee’s communication against France (Duffy), these decisions concerning the situation in Syrian camps are a welcome input to address this serious human rights issue, which has been mainly viewed through a political lens.

As already noted in the beginning, there has been a heated political debate on reparations in Finland since 2019. A distinct and quite peculiar strand of this domestic dispute has related to the Foreign Minister who had been caught up in a maelstrom over allegations that he wanted to push through a plan to bring the women and the children back to Finland, with claims that he side-lined a top ministry official in the process. Aside from a confidence vote in Parliament, ten Members of Parliament from four opposition groups filed a petition for an inquiry into the lawfulness of the official acts of a Minister in accordance with Section 115 of the Constitution of Finland (Act No. 791/1999). In their petition, the MPs argued that the Minister had pressured the Director General of Consular Services (herein Director) to repatriate the Finnish children from the Syrian camp. After a disagreement between the Minister and the Director over the repatriation of Finnish nationals from Syria, the consular duties related to the Syrian camp were taken away from the Director.

The Constitutional Law Committee of Parliament, which is charged with the task of giving an opinion on the unlawfulness of the actions of the Minister before the decision to bring a charge can be made by Parliament, held that the Foreign Minister should not be prosecuted as the higher threshold for the prosecution of a Minister under Section 116 of the Constitution had not been reached. Nevertheless, the Constitutional Law Committee found that the Minister had breached the law in his official duties related to the transfer of the Director’s consular duties. (Constitutional Law Committee, Report no 26/2020; shortly in English see YLE News, 9 December 2020).

The opinion by the Constitutional Law Committee was not unanimous. Two MPs of the Green Party voted against the wording of the report and handed out a dissenting opinion arguing that no violations had taken place in the Minister’s actions. The dissenting opinion sparked a lively discussion as the issues related to the Syrian camp were still prone to conflicts. In the course of the events, one MP of the Centre Party wrote a tweet implying falsely that the dissenting opinion would have been written by the University of Helsinki’s Professor of Constitutional Law, on behalf of two Green Party MPs. This series of tweets and following events finally led to the Centre Party MP’s criminal prosecution. On 28 October 2022, the Centre Party MP was found guilty of defamation of the Professor of Constitutional Law (e.g. YLE News, 28 October 2022).

Concluding remarks

In this comment, I have discussed some insights related to this recent decision by the CRC Committee, aiming in particular to demonstrate some aspects of the decision’s legal relevance as well as the questions it raises. As noted in the beginning, the humanitarian crisis related to Syrian refugee camps is still an ongoing human rights problem, which underlines its significance. According to Finnish authorities, approximately 10 Finnish nationals are still in the camp (YLE news, 12 October 2022). After the CRC Committee’s decision was issued, the relatives of the child victims confirmed that some of the families are investigating the possibility of seeking compensation from the government of Finland (YLE news, 22 October 2022).

Even though this commentary does not, in particular, address the question on extraterritorial jurisdiction, it is worth emphasizing that the CRC Committee’s decisions, in addition to other significant aspects, might be guiding the way towards new approaches to extraterritorial human rights problems. Hence, it is easy to agree with the previous commentary by Sandelowsky-Bosman & Liefaard, who point out that the CRC Committee has shown courage in challenging the existing boundaries of jurisdiction. In this present case, the jurisdiction played a crucial role and, at least in the light of the circumstances of the current case and decision, the positive action to protect the rights requires the State Party to act outside its territory (see also Mustasaari 2020 on legal position of the Finnish children, jurisdiction and state obligations). The decisions concerning Finland and France take at least early steps to overcome some traditional boundaries of international law, which is essential not only due to the situation in Syrian camps, but also for many other extraterritorial issues arising in the contemporary world, such as environmental problems and climate change.