A Generation of Stateless People? Children of Tunisian ISIS fighters and their right to nationality
Over the last decade, an estimated 40,000 persons have left their countries to join ISIS. Tunisian nationals who joined ISIS in Iraq, Libya or Syria are estimated at between 4,500–6,000, making Tunisia the country with the highest number of ISIS fighters and affiliates per its population. Tunisia owes a duty of repatriation to those of its nationals still in Libya, Iraq, and Syria, and its repatriation efforts so far have been piecemeal. This post illustrates why failure to repatriate is especially harmful for Tunisian children born on or remaining on former ISIS territories, especially as it places them at risk of statelessness.
Across the world, the return of former ISIS affiliates to their country of nationality following ISIS’s defeat has raised considerable controversy. While some states have been willing to have their nationals — especially women and minors — returned, others have opposed repatriation. More States are now “resorting to deprivation of nationality as a counterterrorism and national security measure.” Stripping the ISIS affiliates of their nationality often leads to derivative deprivation of nationality, which means that the family members, especially children, of the affiliates often lose their nationality as well and potentially become stateless. This risk is compounded by the difficulty of proving children’s nationality in ISIS territories in the first place, which threatens the “emergence of a generation of stateless people.”
By 2019, some 970–1,500 former ISIS affiliates had returned to Tunisia from Libya, most in a manner “undetected” and of their own volition. At the time, an estimated 36 Tunisian children were still in Libyan prisons with their mothers, and 160 were believed to be held in camps and prisons in Syria and Iraq. The Observatory of Rights and Freedoms, a Tunisian human rights NGO, received data on 104 of the children in Syria, revealing that 88% of them were under 13 years old, and 78% were born in Syria. The fathers of more than half of the children had died, and those of a quarter were imprisoned. In January 2020, Tunisia repatriated six orphaned children, between the ages of three and 12, from Libya. The returns were accompanied by sharp criticism and pushback from the public, which had faced two devastating terrorist attacks in 2015 by ISIS affiliates in Tunis and Sousse. Family members of the foreign fighters, such as grandparents of the children taken to, and born in, ISIS territories, have had to contend with public hostility in demanding the Tunisian government to “Bring back our grandchildren.” In early March 2021, Tunisia repatriated 24 of its nationals — 10 women held in prisons and 14 children held either in prisons or shelters in Libya. More recently, several UN Special Rapporteurs have called on the government of Tunisia to urgently repatriate four young Tunisian women — abducted by their Tunisian mother and brought to ISIS — and the two children born to the eldest daughter, who are held in camps in Syria. Their fate, as well as that of the 160 estimated to be in Syria and Iraq in 2019, is uncertain.
Tunisia owes significant legal obligations to its children nationals abroad. Under human rights law, Tunisia has a positive obligation to ensure protection of its nationals, especially children, detained or held in camps abroad because its actions (or omissions, such as failure to repatriate) directly threaten its nationals’ right to life. Tunisia must protect the rights and interests of the children in Libya, Syria and Iraq, taking special consideration of the “extreme vulnerability of the children arbitrarily detained in the camps” — and must afford these rights and interests a “primary consideration” when weighed against other interests such as counterterrorism and national security concerns. Children’s right to nationality is enshrined in many treaties that Tunisia is party to — including the Convention on the Rights of the Child and the 1954 Convention on the Reduction of Statelessness — which all recognize that “being stateless as a child is generally an antithesis to the best interests of children.” Tunisia’s Nationality Code provides for automatic conferral of Tunisian nationality to children born to Tunisian fathers or mothers, and its Constitution prohibits deprivation of its citizens’ nationality and prevention of their returning to their country.
Advocates have interpreted the above human rights obligations as requiring countries that bear them to take on proactive repatriation of their child nationals. Proactive repatriation goes beyond merely allowing children to enter their country of nationality or repatriating them on a case-by-case basis; rather, it requires that a State provide for the repatriation of all its child nationals by effectuating their right to a nationality, issuing identity documents, ensuring access to consular services, and facilitating their return to their country of nationality.
Proactive repatriation is challenging in the context of children taken to, or born in, ISIS territories. Establishing a child’s nationality is difficult during armed conflict, and “even more [so] in the ISIS context where reaching the nearest consulate or embassy often means crossing the border amid ongoing violence.” Even when the children and their caretaker can access consular services, proving the children’s parentage is not easy: their identity documents may have been lost or destroyed, any birth documents issued to children born in ISIS territories may not be recognized internationally, and DNA tests would only serve as a recourse if there is a relation — such as a grandparent or uncle — in Tunisia seeking unification with a child known to the relation as being their family member. Due to gender discriminatory nationality laws and policy, children born to Tunisian fathers and Syrian or Libyan mothers would normally only be entitled to their father’s nationality, whose acquisition could be uncertain when the father is dead, detained, or in hiding. Of course, this all presumes that at least one parent is living, or that there is some indication of the parent(s)’ nationality: children who have been orphaned and who carry no birth or identity documents are at an ever graver risk of statelessness, despite Syrian nationality law’s nominal protections against statelessness at birth.
The Tunisian Foreign Affairs Ministry has stated that it “‘attaches special importance’ to the cases of the detained children,” but repatriation so far has come short of fulfilling the obligations Tunisia owes to its underage nationals in Libya, Syria and Iraq. Methods such as establishing or improving consular relations with these States, relying on non-governmental organizations with an established presence near the camps or prisons to contact those detained, and facilitating paternity and maternity verification would allow Tunisia to begin meeting its obligation to repatriate, by establishing the nationality of the children and ensuring that they do not become stateless.
Author Bio: Iqra Ishaq is a second-year law student at the Boston University School of Law, and a student attorney at the International Human Rights Clinic. Her Clinic work this year focused on the right to nationality in Tunisia, which when combined with her interest in protecting human rights in conflict and post-conflict situations, led to this blog post.