As discussed in my prior post, President Donald Trump’s family separation policy has come under legal assault from a number of civil society organizations, 17 U.S. states, and the District of Columbia. Some of these lawsuits challenging family separations date back to earlier administrations, (e.g., Flores, see our backgrounder), but new lawsuits have proliferated since Trump’s promulgation of the “zero tolerance” policy, which intends to ramp up criminal prosecution of those crossing the border without prior authorization. At the same time, the Trump administration is considering a return to the practice of separating children from their parents, but this time under the guise of giving parents an excruciating Sophie’s choice: Keep your children in detention with you for months, or even years, or hand them over to U.S. authorities.
Although many of the cases in U.S. courts have focused on constitutional and other domestic legal protections, international human rights law also speaks to the family separation policy. In terms of international fora for pressing these claims, the Texas Civil Rights Project and others have activated the Inter-American Commission of Human Rights, which monitors states’ compliance with the American Declaration of the Rights and Duties of Man and other relevant treaties. The Commission has jurisdiction over the United States by virtue of our membership in the Organization of American States. Over the years, the Commission has scrutinized the United States’ use of the death penalty, immigration and racial justice policies, protections against gender-based violence, and Guantánamo Bay detention practices. Our readers may recall that in March 2017, the Commission was scheduled to consider the Trump administration’s travel ban, but—in an unprecedented move—no U.S. government official attended the session. The hearing went forward nonetheless. In the new petition involving family separations, lawyers for the victims have argued that the family separation policy runs afoul of the United States’ human rights obligations(including the right to a family, to seek asylum and protection, to due process, etc.). In August, the Commission adopted so-called “precautionary measures” on behalf of children who had been separated from their parents at the border.
As is beginning to be argued by human rights organizations, journalists, the United Nations, academic psychologists, and doctors, the family separation policy as implemented implicates the international prohibitions against torture; cruel, inhuman or degrading treatment or punishment; and even forced disappearances. In the following analysis, I compare the impact of the family separation policy against the international and domestic definitions of torture and other forms of mistreatment prohibited by international law. I rely upon the medical literature on Adverse Childhood Experiences compiled by the Stanford Human Rights in Trauma Mental Health Program (with which I am affiliated) to demonstrate that the neurological, physiological, and psychological impact of acute childhood traumas like forcible family separation and indefinite detention rises to the level of severe pain or suffering—and thus torture—under international law. Most importantly, this policy has the potential to cause long-lasting psychological harm to all the parties involved. This is especially true for children, who can experience enduring damage if subjected to toxic stress at crucial developmental stages. The threshold at which treatment or punishment may constitute torture is thus lower when it comes to children, especially when they are deprived of their liberty, because children are still developing physically and emotionally. All told, the family separation policy amounts to government-sanctioned torture.
Read the full post at Just Security.
- Publication Type:Other Writing
- Publication Date:10/18/2018