On Calling Things What They Are: Family Separation and Enforced Disappearance of Children

Recently, there’s been many a discussion in the Global North on the semiotics of law. What does it mean to say there was a genocide in Canada or that ICE runs concentration camps. In general, these debates follow a similar pattern: specific groups of people are outraged that scholars and experts would use the correct terminology to describe a policy they support, because it sounds too harsh.

The effect of language in how societies approach gross human rights violations is an important aspect of transitional accountability (and the law in general). It is simply not the same to speak about “detention centers” than to speak of “concentration camps”. Calling past or ongoing atrocities what they are is an important first step for a society to act on said atrocities. As Heidi Matthews points out with regard to the Canadian MMIWG Report, “[t]hinking about Canada’s past and present through the lens of Indigenous genocide questions the foundations of Canadian sovereignty in a way that, until now, the Canadian people and its government have been unwilling to do”. This is a good thing. The only way to achieve true democracy is through accountability, something many Northern states have so far avoided.  

This need to call things what they are brings me to the US’ so-called “Zero Tolerance” immigration policy. Through this policy, several thousands of children have been separated from their families and kept in concentration camps. This policy has now come to be known as “family separation” in US legal and political discourse. While this may be a sanitized term for primetime TV, the truth is much more disturbing. Legally, as a policy, Family Separation has often involved widespread Enforced Disappearance of children.

As with concentration camps and genocide, though, to some, use of this term may sound unfitting or even inflammatory. Under its colloquial understanding, enforced disappearance evokes tropes of South American dictators secretly and summarily killing political opponents and hiding this fact from their families. The United States, these people would claim, is not intentionally disappearing innocent people for political reasons, but rather, “enforcing its own immigration laws”. Even if that were the case (and it is not, since Zero Tolerance is a policy), enforced disappearance, like genocide, does not require killing, much less politically motivated killing, to exist.

Enforced disappearance as a legal concept was born in 1970s Latin America. In fact, the very term comes from the original Spanish “desaparecido”, “disappeared person”. Thus, much of the legal contours surrounding the concept come from Inter-American institutions such as the Inter-American Court and Commission on Human Rights. For the Commission, which has jurisdiction to supervise the US’ compliance with the American Declaration on Human Rights, “[t]he essential element [of enforced disappearance] is the deprivation of an individual’s liberty by agents of the State ostensibly under law, followed by the refusal or incapacity of the State to explain what occurred to the victim or to provide information regarding his whereabouts” (highlight added). As such, it is not the desire to eliminate an inconvenient person nor the dictatorial nature of the government that configures the disappearance, but the mere inability to account for a detained person, who, in fact, simply “disappears” from public record.

The idea that disappearances can occur when a government “loses track” of a detained person was therefore incorporated into the 1994 Inter-American Convention on Enforced Disappearance of Persons, the first international treaty to deal with the problem of desaparecidos. According to this Convention, an enforced disappearance occurs when a person is deprived of their freedom “in whatever way, perpetrated by agents of the state (…) followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees” (highlight added).

This “absence of information” is a particularly sensitive issue in the context of migration. The UN Working Group on Enforced or Involuntary Disappearance has noted that “[d]isappearances can also occur due to a lack of transparency” given that “migrants are often detained in unofficial detention centres with little or no registration systems”. According to the Working Group, “migrants deprived of liberty must be held in an officially recognized place of detention and their detention must be formally registered, including with accurate information on the reasons for their detention and the place or places of detention”.

All of these are things that the US Family Separation policy does not comply with. As widely reported, the US claims it may be impossible to reunite all of the children separated from their families, many of which not only are not yet capable of speaking, but have also already been transferred to an American foster family. These children are, in effect, desaparecidos, as their families have no way of knowing their whereabouts, because of US negligence.

In Gelman v. Uruguay, a case involving the disappearing of a pregnant Argentinean woman followed by the adoption of her daughter by a Uruguayan family, the Inter-American Court of Human Rights stated that:

“[T]he abduction and suppression of the identity of María Macarena Gelman García as a consequence of the detention and subsequent transfer of her pregnant mother to another State can be qualified as a particular form of enforced disappearance of persons, for having the same purpose or effect, upon leaving her clueless due to the lack of information regarding the fate or whereabouts or the denial of acknowledgment, in the terms of the mentioned InterAmerican Convention”. (¶132)

This enforced disappearance was a complex act that involved a violation of several of her human rights, including the right to identity and the right to protection of the family. In particular, the Court stressed that these violations would not cease until “the truth about said identity is revealed by any medium and the victim is guaranteed the factual and juridical means to recover a true identity and, where appropriate, a family relationship, with the relevant legal effects to follow”.

The situation in Gelman is comparable to that of the Family Separation policy. The United States needs to account for the whereabouts of every single children it has disappeared and reunite them with their families. Using the term enforced disappearance in those cases where the US “lost track” of migrant children is important, because it forces the American people to put the policy in its true perspective and gravity. Separating families is in itself a cruel policy that violates the rights of migrants. Forcefully disappearing a subset of these children reveals the levels of inhumanity the policy entails, comparable in shape and form to the despicable practices of dictatorships such as Videla’s Argentina and Pinochet’s Chile. If the United States is to take responsibility for the harm it has caused these children and their families, a good place to start is to call it what it is.