The 23 Australian children stuck in Syria are not responsible for their parents. They need our government’s support to return | Donald Rothwell

Ever since news broke that 34 Australians were leaving Roj camp in north-east Syria to travel to Australia, their status and travel plans have been at the centre of a political maelstrom. The Albanese government has insisted there would be no repatriation of the 11 Australian women and their 23 children, whose journey was halted on 16 February when they were sent back to the detention camp.

The newly minted opposition under Angus Taylor has demanded answers to the level of assistance the Albanese government has provided to the group, including the issuing of passports, and the Coalition has now proposed new Australian laws to criminalise non-government financial and logistical support that helps the families return to Australia.

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International law is clear as to the rights of persons to enter their own country, with article 12 of the 1966 International Covenant on Civil and Political Rights providing “no one shall be arbitrarily deprived of the right to enter his own country”. Exceptional measures can be taken in times of public emergency, such as those adopted during the height of the Covid-19 pandemic when a temporary exclusion was placed on Australians returning from India.

One of the 34 in Roj camp has been determined by the home affairs minister, Tony Burke, on the basis of Asio and security agencies advice, to meet the legal threshold for a temporary exclusion order (as a person “directly or indirectly a risk to security for reasons related to politically motivated violence”). The remaining 33 are eligible to return to Australia and have been issued bespoke single-use passports for their travel.

The prime minister, Anthony Albanese, Tony Burke and other senior government ministers are adamant that any return of these Australians will be entirely self-managed. This raises two legal issues.

The first is the entitlement of citizens to Australian government consular assistance. This has been contentious in recent decades with Australians having a high expectation of what the government should be able to do when they find themselves in trouble overseas. The Department of Foreign Affairs and Trade promotes its “Consular Services Charter”, which provides guidance on what the government will and will not do for Australians abroad. The replacement of passports is one service but citizens do not have a “legal right to consular assistance” and that assistance may be limited if conduct was illegal, if the citizen acted recklessly, or they have placed themselves or others at risk.

Australian courts in separate cases involving David Hicks and Mamdouh Habib have determined citizens have no legal right to consular assistance. The NGO Save the Children also met a legal roadblock in a more recent case seeking to force the government to intervene on behalf of the Australian children held in Roj camp. Australian governments still have considerable capacity to seek to intervene and represent the interests of Australians overseas. The Howard government eventually brokered a 2007 deal with the US over Hicks, and in 2024 the Albanese government expended considerable diplomatic resources to gain a legal resolution for Julian Assange who avoided extradition to the US and was returned to Australia from London. Australians were repatriated from Lebanon at short notice in 2024 during hostilities between Israel and Hezbollah.

The second legal issue is that 23 of the group are Australian children. Constant concerns have been raised as to the continued exposure of these children to radical ideology in the camp, and the need for them to be removed from that environment and provided with an opportunity to integrate into Australian society.

In this respect Australia has very particular obligations under the 1989 United Nations Convention on Rights of the Child, which makes clear that a child is protected against “all forms of discrimination” on the “basis of the status, activities, expressed opinions, or beliefs of the child’s parents”. Decision-makers such as a minister are to ensure that the “best interests of the child shall be a primary consideration”. Given most of the Australian group in Roj camp are children, their rights and entitlements under international law should be principal considerations for the Albanese government.

With federal parliament due to resume on 2 March and the opposition now proposing new laws, the political debate will only intensify. Roj camp’s immediate future appears precarious. The al-Hawl camp, which held former IS fighters and their families, has in the past fortnight been emptied and it is now anticipated the same will occur at Roj camp – making the future of the Australian women and children uncertain.

Will they return to Australia, become refugees in Syria, or disperse and go their separate ways?

Damascus is Syria’s closest international airport. Beirut and Baghdad airports may be other options but the fragile regional security situation makes extended road travel very hazardous. The next few weeks may prove pivotal for the Australians and, if their circumstances become even more perilous, the Albanese government may be forced to intervene and arrange their safe passage to another country. Irrespective of what choices their parents may have made in going to Syria and supporting an Islamic caliphate, the 23 Australian children are not responsible for their parents. They appear to be in dire need of government support to secure their safe return to Australia.

• Donald Rothwell is professor of international law at the Australian National University