Shamima Begum, a young woman who left the UK as a schoolgirl to join ISIS in Syria, has recently lost an appeal to regain her British citizenship. This decision, leaving her effectively stateless and in a Syrian detention camp, has sparked renewed debate.
In this interview, JURIST speaks with Professor Ben Saul, a UN expert on counter-terrorism and human rights, who brings a wealth of experience to the issue and is a vocal advocate for protecting victims of child trafficking.
Professor Saul serves as the United Nations Special Rapporteur on countering terrorism and holds the Challis Chair of International Law at the University of Sydney. He has published 20 books and hundreds of scholarly articles. He has taught at Oxford, Harvard, The Hague, and Xiamen Academies of International Law, and in Europe and Asia; practiced in international tribunals; advised governments, NGOs and the UN; worked in over 35 countries; and appeared regularly in international media.
Drawing on his experience and recent report presented to the UN Human Rights Council, Professor Saul analyzes the decision through the lens of child trafficking and international law and explores the legal rights of child victims. He also shares his plans for further work on this critical issue.
JURIST: Professor, you recently presented your first report as UN Special Rapporteur on Human Rights & Counter-terrorism to the United Nations Human Rights Council in Geneva. Congratulations on that! Would you like to share more about the work and your experience with our readers?
Professor Ben Saul: My role as UN Special Rapporteur is to ensure that 193 countries respect international human rights law when countering terrorism and to monitor human rights compliance by United Nations counterterrorism bodies. The main functions of my office include diplomatically addressing individual complaints and reviews of problematic legislation to governments, conducting official country visits, presenting annual thematic reports on current controversies to the UN Human Rights Council and General Assembly, engaging with civil society, offering technical assistance to governments, and undertaking public advocacy on human rights concerns.
The misuse of counter-terrorism measures is rife in all parts of the world. This not only violates the rights of suspected terrorists but can also collaterally or deliberately jeopardize the freedoms of innocent people. Abuses include vague definitions of terrorism, excessive terrorist offenses, terrorist sanctions without due process or judicial safeguards, restrictions on and freedoms of association, assembly and expression, and mass and online surveillance infringing on privacy. Counter-terrorism laws have been weaponized against civil society, including political opponents and dissidents, the media, NGOs and minorities. Criminal justice has been marred by arbitrary arrests, protracted pre-trial detention, torture, forced confessions, restrictions on lawyers, non-disclosure of secret evidence, the use of special courts, and arbitrary executions.
Administrative measures to counter terrorism, outside the criminal justice system, have proliferated without adequate safeguards. Emergency legal regimes to counter-terrorism have often violated rights. Military operations against terrorism have violated the prohibition on the use of force and international humanitarian law. Impunity for serious violations of international law in countering terrorism has often prevailed, including because powerful states have selectively thwarted action by the Security Council and the International Criminal Court. Wars on terror continue to entrench, rather than resolve, cycles of violence for which there is no military solution.
JURIST: You jointly with your UN colleagues recently expressed concern on the matter of Shamima Begum and “the continuing failures” of her protection, urging the UK government to repatriate women and children from northeast Syria. However, Begum is viewed as a threat to national security by the UK government. In your view, how does international law on child trafficking intersect with national security measures in such cases?
Saul: There is a credible suspicion that Shamima Begum was recruited, transferred and harbored for sexual exploitation. Human trafficking is an international crime and a form of modern slavery. Under international law, a child who is trafficked must be treated as a victim, even if they have been somehow associated with a terrorist group. Any supposed question of consent or voluntariness by the victim, or any requirement of use of force, deception or coercion to procure their trafficking, is irrelevant where the victim is a child. The UK has an obligation to properly investigate trafficking and to protect the victims, including by promptly returning them home, not to exclude them on security grounds which are closely related to the trafficking of the victim, or to strip them of their citizenship and rendering them effectively stateless, as the UK did in this case.
JURIST: The Special Immigration Appeals Commission (SIAC) previously acknowledged “credible suspicion” that Begum was trafficked for “sexual exploitation,” hinting at potential victimhood. Does this decision adequately address the legal and human rights aspects of child trafficking?
Saul: The SIAC identified potential failures by the UK in its duty to prevent and protect against serious human rights violations prior to Begum’s departure from the UK as a vulnerable 15-year-old child, These circumstances were never properly investigated. The duty to investigate credible evidence of child trafficking is essential to ensure accountability for this heinous crime. The UK authorities should have acted when the SIAC made its findings, not to continue to exclude Ms Begum from the UK and to strip her of her nationality.
JURIST: Considering Shamima Begum as one of the examples, what challenges do countries face in identifying and protecting child victims of trafficking who become entangled with extremism? And, how can international cooperation be improved to prevent child recruitment by extremist groups and ensure repatriation and rehabilitation for victims?
Saul: Children may be targeted or trafficked by terrorist groups for forced marriage, sexual exploitation, forced labor, forced criminality, and forced recruitment for violent crimes. States often fail to identify and protect victims because of their perceived association with terrorist groups and related stigma, discrimination, xenophobia and racism. Children are especially vulnerable because of their developmental status, and because parents themselves can sometimes be complicit in terrorism and in exposing their children to trafficking.
National law must effectively criminalize child trafficking in line with international definitions and legal standards, provide law enforcement with the necessary investigative powers, and ensure effective investigations and prosecutions. Law enforcement must have the expertise, resources, and leadership to prevent, detect and disrupt trafficking networks, investigate and prosecute traffickers, and reintegrate and rehabilitate their child victims. Coordination is essential between all stakeholders, including law enforcement, border authorities, and child protection services. International cooperation requires effective extradition and mutual assistance arrangements.
Wider prevention and early warning efforts may require building the resilience of children, strengthening protection within families, engaging schools, communities and religious leaders, preventing online recruitment, and raising public awareness of trafficking. Social exclusion may alienate children and provoke feelings of injustice, discrimination and marginalization, and this may radicalize them and make them receptive to terrorist messages. Positive communication strategies can help to counter these destructive narratives. In all of these efforts, the dignity, rights and best interests of the child must be central, including in legal proceedings. Children must be supported by specialized and multidisciplinary experts trained in child rights and child protection.
JURIST: As a final comment – would you like to share with our readers what initiatives you plan to pursue to address these challenges in your role as Special Rapporteur?
Saul: My new priorities for future thematic reports will include the protection of human rights in relation to: counter-terrorism by regional organizations; administrative measures in countering terrorism; the role of non-state actors in counter-terrorism (including technology and security companies, military companies, non-state armed groups and de facto authorities, and non-governmental organizations); specialized international bodies involved in counter-terrorism, namely the International Civil Aviation Organisation and International Maritime Organisation; and accountability and reparation for large scale violations of human rights while countering terrorism. I will also continue the vital advocacy work of my predecessor on key issues, including victims of terrorism; the negative impacts of counter-terrorism on civil society and civic space; protection and repatriation of individuals from arbitrary detention in north-east Syria; protection and solutions for Guantanamo Bay detainees and transferees; human rights in the United Nations counter-terrorism system; and new technologies (including spyware, facial recognition, and the protection of critical infrastructure and vulnerable targets, artificial intelligence, and online content moderation).
