The United States’ Obligations Regarding Separated Migrant Children

[Assistant Professor at the Poznań Human Rights Centre, Institute of Law Studies of the Polish Academy of Sciences.]

The Trump administration’s ‘family separation policy’ has been widely reported and criticized (see for example here and here). Recently, the public learned of the policy’s horrible long-term effects: in October 2020, the American Civil Liberties Union (ACLU) revealed that parents of 545 children separated in 2017 and 2018 have not been found. In November 2020, the lawyers leading efforts to reunite the families revealed that the number is even higher: 666.

The horror of the children and families cannot be overstated. Nearly twenty percent of the children were under 5 years old at the time of the separation. Approximately two-thirds of the parents are believed to currently reside in their respective countries of origin, thus making it extremely difficult for them to find their children.

Alonso Gurmendi argued on this blog that Trump’s family separation policy amounts to enforced disappearances. He raised the importance of calling it what it is in order “to put the policy in its true perspective and gravity.” This post aims at explaining how the practice fits the definition of enforced disappearances and highlighting the obligations that arise regarding the children, whose parents have not been found yet, and their families.

The Family Separation Policy as Enforced Disappearances

An enforced disappearance consists of three elements: (1) a deprivation of liberty (2) conducted by state authorities, (3) followed by a refusal to acknowledge the fact of concealing the fate or whereabouts of the disappeared (see Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearances; ICPPED; and Article 2 of the Inter-American Convention on Forced Disappearance of Persons). International criminal law employs a different definition of enforced disappearances, as it also includes acts committed by political organizations (see 7.2 (i) of the Rome Statute of the International Criminal Court).

The separated children were detained by the US authorities, thus clearly meeting the first two elements of the definition. The ICPPED adopts a broad approach toward the deprivation of liberty, including “arrest, detention, abduction or any other form of deprivation of liberty.” Even if the migrant children were never formally detained, this fact would not influence the classification of events.

The third element in the definition requires the state authorities to conduct either one of two following actions. First, the refusal to acknowledge the deprivation of liberty, which is clearly not the case regarding the separated migrant children. Second, the concealment of the fate or whereabouts of the disappeared person. The whereabouts of the children are known to the US authorities. However, both the whereabouts and fate of the migrant children are concealed, as they are not revealed to their parents. Even more so: the whereabouts cannot be made known to the parents, as state authorities do not know where the children are. Thus, the ‘family separation policy’ meets all the elements of enforced disappearance: it is a deprivation of liberty conducted by state authorities, followed by concealment of the fate and whereabouts of the children.

Obligation Arising Regarding the Enforced Disappearance of Separated Migrant Children

Search for the Parents

Committing enforced disappearances triggers a particular obligation for states. Clearly, there is an obligation to search for the disappeared person. In the case of the separated migrant children, it is their family members that the state should seek. This is rather unique, as usually the family members are known, and the search is for the disappeared person. However, the practice of disappearing children is not exceptional: it has happened in El Salvador and Argentina, among other places, where the famous Grandmothers of the Plaza de Mayo are still looking for their grandchildren disappeared during the dictatorship. The means employed in those countries to look for the children (including media campaigns, DNA testing) can be an indicator of measures the US authorities could take. At the same time, El Salvador and Argentina show how complicated and problematic the search for disappeared children is, as after decades of enormous efforts by the families many of the children have not been found.

In the US, the search for the parents of the separated children is being run by a court-appointed body organized by the ACLU. The attempts to reach the parents include on-the-ground search in their respective countries of origin, cooperating with non-profit organizations, establishing toll-free telephone numbers for parents, and broad-based media outreach efforts to publicize those numbers. In 2021, the search efforts should be taken over by the government, as president-elect Joe Biden has committed to establishing a government task force working to reunite all separated migrant families. However, even the involvement and strong commitment of the federal government will not necessarily lead to finding all the parents promptly, especially those that have been sent back to their violence-ridden home countries.

Enforced disappearances are of continuous nature and investigations need to be undertaken until the fate of a disappeared person has been clarified. Thus, the US authorities must search for the parents until all of them have been found and the identity of all children has been established. The obligation to continue the search and establish the identity will continue also when the children are adults.

Life of the Separated Children During the Search

While the search for the parents continues, other obligations arise to the separated children. As victims of enforced disappearances, they are provided the right to know the truth regarding the circumstances of the enforced disappearance and the progress of the investigation. Some of the children have been separated at such a young age, that they will not remember their parents. When and how should a separated child be informed about the search for their parents? How should they be updated about the search results? The age and best interest of each child must be considered when approaching these questions, however they clearly need to be addressed.

States are obliged to preserve or reestablish the identity of children, including their nationality, name, and family relations (Article 25 of the ICPPED). The right to identity and obligation to reestablish it when a child is illegally deprived of some elements of his or her identity are also provided for in the UN Convention on the Right of the Child (Article 8). The Grandmothers of the Plaza de Mayo stood behind including this right in the Convention, showing how relevant the right is in the context of enforced disappearances.

To fully reestablish the identity of the separated migrant children it is necessary to find their parents. However, can an obligation arise from this right before the parents are located? At least one, I argue, with regard to language. The state should take all possible measures to ensure that the children develop their native language(s), which for most of them will be Spanish. Thus, the children should be provided the opportunity to expand their language skills or acquire the specific language, if the children were separated before they could speak. Ideally, this should be done through placing them in bilingual families, but this can also be achieved for example through language immersion schools. Ensuring that the separated children speak their mother tongue serves two goals. First, it is a necessary step to reestablish their identity. Second, it enables communication with their families once they will be found, as many parents might not speak English.

Compensation and Reparation

In the case of enforced disappearances, everyone who suffered harm as a direct result of enforced disappearance is considered a victim of enforced disappearance (Article 24 of the ICPPED; IACtHR case-law). In the case of separated migrant children, this clearly concerns their parents and can possibly include also siblings and extended family. All victims of enforced disappearances should be provided with compensation and reparation. Considering the above along with the best interest of the children – who are in the USA for at least two years already – I argue that the families should be given the opportunity to reunite with their children in the USA if they wish to do so. As I mentioned above, two-thirds of the parents are believed to be in their respective countries of origin. As reported by the press, president-elect Joe Biden has not yet decided whether the families will be given this possibility. Independently of allowing the family to enter the USA, the children and their families must be compensated for the gross human rights violations.

Addressing the effects of Trump’s ‘family separation policy’ requires the new US administration to take specific actions. While finding the parents and reuniting them with their children has to be a priority, the US administration should also ensure that the children are provided information on the search for their parents, as appropriate to their age. Moreover, the US administration should also take all possible measures to provide the children the opportunity to develop their native language(s). Last but not least, both the children and their families must be provided with compensation and reparation.