After headlines reported that thousands of children had been forcibly separated from their families by US officials, in June 2018 the Trump administration announced an end to the family separation policy, and a federal court ordered the reunification of separated families. However, as Michael Garcia Bochenek and Warren Binford reported for the America Prospect in August 2019, when they investigated, “child after child sat before us describing when and how U.S. officials forcibly separated them from their families this year.” Their report documented the deplorable conditions and emotional abuse that detained children endured—but also how international law could help to hold US officials to account for violations of children’s rights.
By law children should not be held in custody by Border Patrol for more than 72 hours. Beyond that time, detained children are supposed to be transferred to custody of the Department of Health and Human Services, and either reunified with family in the US or another caregiver.
However, Bochenek and Binford reported that, earlier in 2019, the Border Patrol “was detaining children for more than 90 days on average, in violation of both these legal limits and the children’s rights.”
The UN Convention on the Rights of the Child, which the US helped draft between 1979-1989, and which it officially signed in 1995, could help address these violations, Bochenek and Binford wrote. But, they also noted, “no president has ever sent [the treaty] to the Senate for ratification, the formal agreement to be bound by its terms,” making the US the only signatory among UN member countries not to have done so.
What could be accomplished if one made a strong argument that US violations of children’s rights violated US obligations under international law? One possibility, Bochenek and Binford considered, is “the regular accounting every UN member has to make at the Human Rights Council, a process known as Universal Periodic Review.” In May 2020, when the United States is up next, every other UN member will “be able to ask questions and make comments and recommendations on US respect for the Universal Declaration of Human Rights, its voluntary commitments, and its treaty and customary international law obligations,” Bochenek and Binford wrote. Furthermore, during that review process, nongovernmental organizations can submit information—including statements from detained children themselves—to inform those discussions.
While noting that Universal Periodic Review is “not a court process,” they nonetheless asserted that there is “real value in the political pressure of regular review by other countries.”
Reports of abuse of immigrant children in US detention have been headlines in the best-known US news media. For example, in July 2019, Fox News reported on inhospitable detention center conditions for migrant children. However, the report’s second paragraph emphasized that people cross the US-Mexico border “illegally.” The article also reported that “of the 2,669 children detained by the Border Patrol, 826 had been held longer than 72 hours,” a requirement Fox News described—not as binding law—but “as generally permitted under Customs and Border Protection standards.” What seems like a complete report is just one more headline without a complete explanation. Bochenek and Binford’s American Prospect article remains distinctive in highlighting how international law, including the UN’s Universal Periodic Review, could be mobilized to pressure US policymakers to reform policies with cruel consequences for detained children and their families.
Source: Michael Garcia Bochenek and Warren Binford, “The U.S. Is Mistreating Children in Its Custody. Can International Law Help?,” The America Prospect, August 15, 2019, https://prospect.org/article/us-mistreating-children-its-custody-can-international-law-help.
Student Researcher: Christina Chacon Sanchez (City College of San Francisco)
Faculty Evaluator: Jennifer Levinson (City College of San Francisco)