New mechanisms of war, same Human Rights?: European Cubs of the Caliphate

Since the fall of the Islamic State, in March 2019, more than 9,000 foreign children who are relatives of foreign fighters that traveled to Syria to join the ranks of the Islamic State still remain in Syrian territory, most of them in the IDP camps of Northeast Syria, in deplorable conditions according to the latest UNICEF reports. The reactions from State Members to repatriate those children have been rather limited as well as uneven depending on the country and the political orientations, pleading in most cases ΄ risk to national security ΄. This argument has led Member States to accomplish reforms in the criminal codes, such as the case of Spain in 2015 and in case of children, States have securitized their imagine and accentuated their victimization which is leading to long-term consequences that will make their integration in European societies increasingly difficult. We are facing a disruption that understands security as a political weapon that in turn generates violence, it is a process that is taking place in real time and that is being accepted by the international community, being paradoxically contrary to both International Law and the Rights of Child. This process that securitizes actors such as those above referred is close to extremist positions and policies that polarize European society and at the same time weaken the Rule of Law. For this reason, an immediate response is necessary. In this context, this work analyses the application of Human and Child Rights obligations that depends on the jurisdiction of the States from the traditional models: spatial and personal and concludes by detecting great deficiencies in these two models. The functional model is then proposed, it presents an open approach depending of the capacity of States to protect people from threats in an “immediate and foreseeable” manner. The paper proposed that even in the absence of a territory of effective control over the foreigner, European Union States may have a positive obligation under Article 1 of the European Convention on Human Rights (“ECHR”) to take measures within their power to ensure respect for Human Rights outside their territory. This paper delves in the specific situation of these European boys and girls still in Syrians Camps for Internally Displaced, and argues the need to apply State obligations from a functional model based on the pro-person approach for which Human Rights were created. This paper aims to use the art of justice to propose an evolution in the interpretation of the norm that contribute to the comprehensive protection of Human Rights, which is the ultimate goal for which they were created.