Kurdish-run al-Hol camp, which holds relatives of suspected Islamic State group fighters in the northeastern Hasakeh governorate, during a security operation by the Kurdish Asayish security forces and the Syrian Democratic Forces. Canada will repatriate six women and 13 infants who have been detained in northeast Syria in camps for family members of Islamic State Group fighters, Ottawa announced on Jan. 20.DELIL SOULEIMAN/AFP/Getty Images
Sharry Aiken is an associate professor in the Faculty of Law at Queen’s University. Paul Champ is a constitutional lawyer at Champ & Associates in Ottawa. Kent Roach is professor at the University of Toronto Faculty of Law.
As members of the legal community, we are gravely concerned by the Canadian government’s continuing refusal to repatriate all Canadians detained in camps and prisons in northeast Syria. Urgent repatriation is “the only international law-compliant response,” in the assessment of the UN Special Rapporteur on counterterrorism and human rights. Although ties to the militant group Daesh have been alleged to justify continuing gross violations against the detainees, the Federal Court has clearly stated that the government has not “allege[d] any of the Applicants engaged in or assisted in terrorist activities.”
On Jan. 20, the Federal Court ordered several of the detained Canadian men returned under Section 6 (1) of the Charter of Rights and Freedoms, which guarantees Canadian citizens the right to enter Canada: a protection for all Canadians against banishment. Yet instead of honouring this decision, the federal government is appealing it, and the arguments are being heard in court Monday. In appealing the case, the government is prolonging the dire and life-threatening conditions of the detainees. At the same time, it is advancing the troubling legal argument that the court, in performing its essential function of upholding basic rights, is impermissibly “interfering in the exercise of Crown prerogative over matters of foreign affairs.”
This is particularly disturbing given the scale of rights violations involved. As described by the Federal Court and documented by UN experts, the deplorable conditions and abuses experienced by Canadian and other detainees in northeast Syria include long-term, extrajudicial, indefinite, and in many cases incommunicado detention without the possibility of trial. They are subject to torture and ill-treatment; life-threatening denial of food, water, sanitation, shelter, and medical treatment; failure to provide education; and sexual violence and exploitation, particularly against women and children.
The detained children face extreme physical danger, and at least 371 died in just one of the camps (al-Hol) in 2019 alone from causes such as malnutrition, dehydration, tent fires, shootings, stabbings, and drownings in open sewage pits. These children also face separation and warehousing away from their mothers, where they suffer from untreated war injuries, missing limbs, and severe trauma. Such treatment violates international law and Canadian constitutional provisions protecting the rights to life, liberty, security of the person, fair trials and equality, and prohibiting secret and arbitrary detention, enforced disappearances, collective punishment, torture and ill-treatment.
Thirty-five countries have done what the Federal Court has asked the Canadian government to do: repatriate its citizens. States that have repatriated their citizens to date include Australia, Belgium, France, Germany and the United States, and more than 6,000 detainees have been repatriated. Commending Kyrgyzstan’s decision to repatriate 59 detainees from the camps this February, the U.S. Department of State emphasized: “Repatriation is the only durable solution to this urgent humanitarian and security situation [ … ] We urge all governments to follow Kyrgyzstan’s example and repatriate their nationals.”
Calls for repatriation have now been issued by U.S. President Joe Biden, the International Committee of the Red Cross, 22 United Nations experts, the Canadian House of Commons Standing Committee on Foreign Affairs and International Development, and the Kurdish authorities administering the camps and prisons. The conditions for release outlined by Kurdish authorities could not be expressed more simply: that Canada write a letter requesting the detainees’ release, that Canada ensure travel documents are ready for issue, and that a Canadian representative appear in northeast Syria for a handover signing. The U.S. military has pledged to provide the security and resources necessary to fly detainees home.
Canada’s failure to repatriate perpetuates a pattern of Canadian governmental complicity with the overseas torture, arbitrary detention, and forced exile of Muslim Canadians, as recorded in the two official inquiries on the cases of Maher Arar, Ahmad Abou El-Maati, Abdullah Almalki, and Muayyed Nureddin, and other legal complaints.
Instead of advancing legal interpretations that would harm fundamental rights protections, the Canadian government should honour the Federal Court’s repatriation order and work to urgently bring back all Canadian detainees. Any non-Canadian caregiving parents should also be allowed entry to prevent children from being separated from their parents. Finally, the government should address the underlying deficiencies in Canadian policies – many of them identified in unimplemented recommendations from the 2006 Arar Inquiry – that have led to this deplorable situation. The time to end the exile of Canadians in northeast Syria is long overdue.