BEN SAUL. Stop talking tough Prime Minister and start caring for Aussie children (SMH 3.4.2019)

Apr 4, 2019

With the defeat of the Islamic State’s last stronghold in Syria, governments worldwide are grappling with how to deal with the innocent family members of foreign terrorist fighters. The Prime Minister has proclaimed that he will not “put one Australian life at risk” to extract the children of Australians who were involved.  

A number of widowed Australian “ISIS brides” and their children are living in the Al-Hawl camp near the Iraqi border. They include three orphaned children, aged 8, 16 and 17, of Khaled Sharrouf and Tara Nettleton. The eldest daughter, Zaynab, is pregnant and was a child bride, already having two children aged 2 and 3.

The infant son of Shamima Begum, a British teenager who left London to join the Islamic State group in Syria, has died.

Innocent Australian children should obviously not suffer for the sins of their parents. They are victims of egregious child abuse by their families. But their situation is legally precarious and highlights major gaps in the protection of Australians.

Under Australian and international law, every citizen (and dependent child) has a right to return to their home country. The practical problem is that it is very difficult for Islamic State families to return to Australia under their own steam. They may have no money to travel. They may lack travel documents, including if Australia cancelled their passports (or in some cases, their parents’ citizenship). They may be confined for security reasons in Syrian camps. They may be refused permission to transit through other countries because of their association with IS. Australian consular support is understandably non-existent in rebel-held areas of Syria.

Resolving their situation clearly requires the intervention of the Australian government. Australia has a legal right to “diplomatically protect” citizens who are at risk overseas, by seeking the cooperation of foreign authorities to secure their return.

One legal barrier is that diplomatic protection is a discretionary right of the government, not of its citizens. It is not duty bound to exercise it and Australians cannot compel it to assist them. This antiquated law privileges government interests over citizens’ rights, and is out of step with what many Australians expect of our government and our citizenship.

Another barrier is that diplomatic protection is designed to operate between governments, but the Australian families are held in camps run by Kurdish rebels, not President Assad’s Syria. Dealing directly with Syrian rebels could be seen as an unfriendly intervention in Syrian sovereignty.

However, since Syria has lost control of part of its territory, it is necessary for foreign governments to deal directly with the rebel authorities who are administering it. Syria would probably welcome the exit of foreigners linked to IS.

Another law is relevant. The Convention on the Rights of the Child requires Australia to regard the “best interests” of the child as a “primary consideration” when making decisions. It is not the only relevant consideration and security concerns could also be “primary”.

Syria at war is clearly a dangerous place. But the Prime Minister has exaggerated the risk to Australian officials of getting involved. The Australian families are no longer on the battlefield, but are held in camps under the stable control of Kurdish forces – allies of the US.

It would not be necessary for Australian officials to physically enter the camps in Syria. Diplomats in our embassy in Baghdad, who have close ties with the Iraqi government, could negotiate the transfer of Australian families from the camps to the nearby Iraqi border, with the consent and cooperation of the Kurdish rebels and Iraqi authorities. Australia could then facilitate the travel documents and logistics for regular flights, accompanied by welfare and security officials, to Australia. The risk to Australian personnel is negligible.

The hard part is what comes next. The children will be traumatised by what they experienced and witnessed. They will require intensive support on return to Australia to re-establish normal childhoods and future prospects. Some will need to be taken into care, if they are orphaned or if their protection requires removal from unfit IS parents.

If Australia does not act, we are effectively telling Kurdish rebels that we expect them to indefinitely care for innocent Australian children. That is grossly unfair. The Kurds did not ask Australian fighters to join IS, or to bring their children. It is also unrealistic. The rebels have very limited resources and are fighting a civil war. They are not yet able to build a safe society in which children can flourish.

Australia, and no one else, is responsible for securing the welfare of Australian children. The Prime Minister should stop talking tough on terrorism and start caring for Australian families.

Ben Saul is Challis Chair of International Law at the University of Sydney and the Whitlam and Fraser Chair of Australian Studies at Harvard University. He has previously worked in Kurdish Iraq.

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