Like other Western countries, Germany faces a dilemma of how to deal with citizens who went to the Middle East to join armed groups such as Islamic State of Iraq and the Levant (ISIL or ISIS), which was driven out of its last territorial enclave in March by US-backed forces.
The family sued Germany’s foreign ministry after diplomats declined a request to help the mother return to Germany with her three children from a Kurdish-controlled area in northern Syria, a court spokesman said.
Germany had wanted to repatriate the children but not the mother. But the Kurdish-led administration, where thousands of ISIL fighters are being held, demanded their mother also be sent back.
The ISIL soldier, whose fate is unknown, left Germany for Syria with his wife and two daughters, now aged seven and eight, in 2014. His wife had a third child in Syria two years ago, the court spokesman said.
A German foreign ministry spokesman said the government was studying the ruling and may appeal at a higher court. A lawyer for the family did not respond to a request for comment.
German intelligence officials say more than 1,000 Germans went to fight in Syria and Iraq, where ISIL once controlled swaths of territory in a self-declared Islamic state.
About one-third have returned to Germany, another 30 percent are believed dead, and the rest are thought still to be in Iraq and Syria.
Germany has said it would take back fighters only if the suspects have consular access, adding in principle all of its citizens and those suspected of having fought for ISIL have the right to return.
But in April, the government approved a draft bill allowing it to strip Germans with a second nationality who fight abroad for groups such as ISIL of their citizenship.
At its peak in January 2015, the armed group controlled an area across Syria and Iraq roughly equivalent to the size of the UK, and attracted tens of thousands of foreign fighters to its cause.
Iraq is conducting trials for thousands of suspected ISIL fighters, and has pledged to take a hard line against anyone convicted of involvement with the group.
Human rights groups have accused Iraqi authorities of inconsistencies in the judicial process and flawed trials, leading to unfair convictions – concerns heightened by the application of the death penalty.
But European powers, including France and Britain, have repeatedly ruled out repatriating such individuals, maintaining they should face trial for any alleged crimes before local courts.
However, France has repatriated children from Syria in recent months, as has Belgium, the Netherlands and the United States.
Britain, meanwhile, said in April a “small number” of British children left Syria and returned to the UK via other countries. British officials were not involved in helping them leave.
Michelle Bachelet, the UN’s high commissioner for human rights, called last month for some 55,000 former ISIL fighters detained in Syria and Iraq to face fair prosecution or be freed.
States “must assume responsibility for their nationals” and should not inflict statelessness on fighters’ children, Bachelet said.