On Friday 11 November 2019, the preliminary relief judge of the District Court of The Hague ruled that the State must endeavor to recover 56 Dutch children from northern Syria.
The judgment was rendered on 1 November 2019 in summary proceedings brought against the Dutch State by the 23 mothers of these children before the District Court of The Hague. The persons involved currently reside in two camps in Northern Syria, under extremely difficult circumstances. They requested the judge to order their repatriation as soon as possible. In brief, they asserted that the Dutch State has a duty of care and that international treaties oblige it to repatriate the children and their mothers. More in particular, the State has a great responsibility towards the children.
In its judgment, the preliminary relief judge ruled that the State must endeavor to repatriate the children and, according to the judgment, the State acted negligently by failing to actively do so. Indeed, the children are residing in camps under wretched and life-threatening circumstances which the court finds can lead to serious developmental harm. The children are the victims of the conduct of their parents and may not be held responsible for those actions. This applies regardless of how serious their parents’ conduct may be.
With regard to the mothers, the judge held that the State has no duty to repatriate them given that they travelled to the region and joined a terrorist organisation is guilty of committing serious crimes of their own volition.
Even so, the judge also held that if the Kurdish authorities were to refuse to let the children leave without their mothers, the State must also repatriate the mothers in order to protect the children. In that case, the mothers would be detained upon arrival in the Netherlands and subsequently prosecuted by the Public Prosecutor’s Office.
The judge explicitly held that the State has a best efforts-obligation with which it must comply within two weeks. What this entails is that the State must take all action in its power to recover the children, but that the judge cannot determine how the State must do this and whether or not the obligation has been fulfilled. This is because in the opinion of the court the situation is so complex that the children may not be able to return, for example because it is too unsafe. In doing so, the judge therefore leaves a wide margin of appreciation to the State. However, the Court did explicitly hold that the State must make use of any offer of assistance from the United States.
The State has indicated that it does not agree with the judgment and has filed for an appeal. The plaintiffs will also appeal the judgment insofar as it relates to the decision by the judge that the women do not have an independent right to recovery. Due to the urgency of matter in light of the interests involved, the appeals hearing will take place on very short notice. It has been scheduled for Friday 22 November 2019 in The Hague.
The women and children are being assisted by lawyers from five different law firms: André Seebregts from Seebregts en 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 en Pen Advocaten and Jeffrey Jordan from Jordan Law.
See also (in Dutch):
- Pauw d.d. 11 november 2019 (starting from time code 00:35).