BY: Veronika Matysiak
Veronika Matysiak is a sophomore in the School of Foreign Service studying international relations and affairs. She is a line editor for the Georgetown University Undergraduate Law Review.
The functional defeat of the Islamic State (IS), designated a terrorist organization by the US State Department, the European Union, and the UN Security Council, has not ended the problems arising from the group. IS, once committed to imposing a fundamental Islamic theocratic state or proto-state, controlled significant swaths of Iraq and Syria but was functionally defeated after losing 95 percent of its territory by the end of 2017. Captured fighters and families have been relocated to detention camps in Syria, where 12,300 of the 70,000 detainees are foreign nationals. A significant number that remain in the camps are women who emigrated from western states to marry fighters and their children from those marriages. From this, a problem arises. What is the legal status of these women and children? Many of the women left their homes voluntarily: some disposed of their passports, while others renounced their citizenship. Some committed acts of terrorism, while others just abetted. The reality is that many states do not want these women back, nor the children that come with them.
Many states have either formally or informally prohibited IS women from reentry. On one end of the spectrum, the United Kingdom has formally divested over 100 fighters and women of their citizenships. Yet, on the other end, Russia, Malaysia, Uzbekistan, Kosovo, and Tajikistan have attempted to repatriate IS participants. In a murky middle ground, the US has extradited some citizens, while France has allowed some citizens to be tried on terrorism charges in Iraq and sentenced to death. There is no internationally consistent approach to repatriating IS women, and few approaches are consistent with international law, especially in regard to children born to IS.
Of the 12,300 foreign nationals in Syrian detention camps, 8,700 are children. By closing off access to consular assistance to IS women, states are effectively rendering children stateless for the sins of their parents. This is in violation of several international conventions, namely the UN Convention on the Rights of the Child, UN Conventions on Statelessness, the International Covenant on Civil and Political Rights, and the European Convention on Nationality. Each of these agreements explicitly secures the right of all children “to acquire a nationality,” or for states to facilitate protection for children born to nationals.  These protections stem from the concepts expressed in the Universal Declaration of Human Rights “that childhood is entitled to special care and assistance.” First, this right is protected by the family, “the fundamental group of society.” In this case, once the family has proven unable to properly provide for the child, the duty falls on the state, which is explicitly named as a protector in the conventions.
It is inaccurate to claim that states are not responsible for ensuring these rights; rather, it is unpopular politically for states to devote resources to those who are perceived as traitors to their country. Violations of these conventions cannot be dismissed as a necessary by-product of national security concerns associated with repatriating IS fighters. While there is a legitimate security element that may be considered, it cannot outweigh the rights guaranteed to children for their protection and development. Beyond even moral arguments, there are emerging tangible case studies that demonstrate it is possible to fully repatriate former IS associates. The fact that there is no effective enforcement arm of these conventions does not invalidate state commitments; if anything, it reinforces that the rights of those who have no other protection are self-evident.
 Foreign Terrorist Organizations – United States Department of State, U.S. Department of State (2020), https://www.state.gov/foreign-terrorist-organizations/.
 Timeline: the Rise, Spread, and Fall of the Islamic State, Wilson Center (2019), https://www.wilsoncenter.org/article/timeline-the-rise-spread-and-fall-the-islamic-state.
 Henrik Pryser Libell, ISIS Wife’s Return to Norway Divides Government, The New York Times (2020), https://www.nytimes.com/2020/01/20/world/europe/isis-norway.html.
 Jamie Dettmer, Britain Strips More Than 100 Islamic State Fighters of Citizenship, Voice of America (2017), https://www.voanews.com/europe/britain-strips-more-100-islamic-state-fighters-citizenship.
 Women and Children First: Repatriating the Westerners Affiliated with ISIS, Crisis Group (2019), https://www.crisisgroup.org/middle-east-north-africa/eastern-mediterranean/syria/208-women-and-children-first-repatriating-westerners-affiliated-isis.
 Women and Children First, supra note 5.
 Libell, supra note 3.
 International Covenant on Civil and Political Rights, UN OHCHR, 23 March 1976;
Convention on the Rights of the Child, UN OHCHR, 2 September 1990.
 European Convention on Nationality, Council of Europe, 6 November 1997.
 Convention on the Rights of the Child, supra note 8.
 Women and Children First, supra note 5.