The Repatriation of European Nationals from Syria as Contested before Domestic Courts in Belgium and Beyond

Abstract

Since the physical decay of Islamic State and other radical Islamic groups in Syria, a considerable number of European nationals who are held captive in Syria have expressed their will to return to their home country. Some of them have initiated cases before the national courts of their home country to enforce their repatriation. This paper primarily analyses relevant Belgian cases, revolving around human rights law and consular law. Second, it puts these cases in a comparative perspective to cases in other European states, namely the Netherlands, Germany and France.

The paper finds that in all four legal systems, relevant cases were dealt with differently. Overall, it appears that in states where a constitutional duty or civil law standard of care for the state vis-à-vis its citizens is more entrenched, such as in Germany and the Netherlands, the legal framework to deal with nationals abroad in conflict areas is more straightforward. In states like Belgium and France, where this is less entrenched, cases have wavered between varying legal bases; from international to national, and human rights to consular law and criminal law. This has resulted in a standstill at the national level, with courts looking at the European Court of Human Rights to offer a way out.

Keywords: Syria, repatriation, human rights, extraterritorial jurisdiction, consular assistance, duty of care