On Friday 1 November 2019 at 14.00 o’clock the summary proceedings initiated by 55 Dutch children and their 23 mothers against the State of the Netherlands will be heard by the preliminary relief judge at the District Court of the Hague. The plaintiffs sent the State a notice of liability on 15 August 2019 and asked for repatriation within four weeks. When the State failed to do so, they issued a Writ of Summons on 17 October 2019. The women and children have requested the judge in interlocutory proceedings to order their repatriation as soon as possible.
The women and children are currently staying in two camps in Northern-Syria. There is great turmoil in the region. Both the mothers and children have been living in these camps for considerable time (some for over two years) in life-threatening and deplorable conditions. Prior to the announced withdrawal of the United States from the region and the invasion by Turkey, the total number of deaths of children in the camps had already exceeded 300. Moreover, the situation in the camps is particularly harmful to the physical and psychological condition and development of the children. The children are living in captivity, are witness to disturbances and violence in the camps against which they are insufficiently protected, they do not receive any psychological treatment, cannot go to school and have there are insufficient sanitary facilities and food available to them.
The Dutch government policy is that these women and children will not be brought back. However, the women and children assert that the State has a legal responsibility to escort them back. They base this on two grounds: the standard of due care (that must be observed in society) and the applicable international treaties, including the Convention on the Rights of the Child (CRC). They also point out that nearly all the players involved are insisting on return (i.a. the United States, the Kurds, Iraq, the United Nations, the Dutch criminal courts, the Public Prosecutor’s Office, the Child Ombudsman, NGO’s, academics and increasingly also political parties). Additionally, various experts assert that prosecution in the region is not a realistic option. In any case, many of the children are not eligible for prosecution/trial in light of their young age. The experts also assert that the dangers to society that could be posed by the mothers and their children would be greater if they are not repatriated.
In addition, the women and children put forward the following arguments that obligate the State to repatriate them (or have hem repatriated):
- Children are not responsible for the choices made by their parents.
- According to the CRC, the interests of Dutch children must always be the point of departure in all decisions that concern them.
- The lack of official diplomatic relations between Syria and the Kurds is no excuse for failure to take action. The State is also capable of taking action, if necessary in cooperation with other countries such as the United States or France and more recently Turkey and Russia. In particular the United States has, very recently, offered to repatriate the Dutch mothers and children, or offer their assistance in doing so and earlier this year France provided concrete assistance with the repatriation of two Dutch orphans.
- The Netherlands is violating the existing duty of care it has vis-à-vis the women and children. This duty of care of the women and children can be derived from various human rights treaties to which the Netherlands are party, as well as from court rulings concerning the right to diplomatic protection on and consular assistance for Dutch nationals abroad. To the extent reasonably possible, the State is required to intervene if its nationals are exposed to (mortal) danger and the violation of their rights. This standard is not been met in the current case.
- With regard to the safety of the children and their mothers during their transport to the Netherlands and/or the nearest Dutch consular post in Erbil (Iraq), it should be noted that the Kurds, Americans, French and Belgians, as well as 14 other countries in total have managed to transport their citizens to their respective countries safely, either directly or via Erbil.
- Upon their arrival, the women will be arrested immediately and detained in previously reserved cells in the terrorist wing of the penitentiary in Vught (the Netherlands). Criminal case files have already been compiled. They will be prosecuted for (in any case) participation in a terrorist organisation. Experience shows that successful prosecution for this offense is possible. Aside from an unconditional prison sentence, part of the judgment always includes a gradual return to society, subject to strict and particular conditions and government supervision. Moreover, there are various possibilities for victims to participate in the criminal proceedings. Both the Child Care and Protection Bard and the Youth Care Agency are ready to receive the children. Foster families have been arranged for the young children, either with family or elsewhere. Locations have been appointed for the older children that are specialized in de-radicalization.
The women and children are represented by lawyers from five different firms: André Seebregts from Seebregts and Saey Advocaten, Tom de Boer and Tamara Buruma from Prakken d’Oliveira Human Rights Lawyers, Elpiniki Kolokatsi from Kolokatsi Advocaten, Bart Nooitgedagt from De Roos and Pen Advocaten and Jeffrey Jordan from Jordan Law.